R v Acuna [2008] VSC 351 (10 September 2008)

THE QUEEN

v

CORY ACUNA

JUDGE:	COGHLAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28-30 April 2008, 1-2 and 5 May 2008, 6 May 2008 (Plea)
DATE OF SENTENCE:	10 SEPTEMBER 2008
CASE MAY BE CITED AS:	R v ACUNA
MEDIUM NEUTRAL CITATION:	[2008] VSC 351

CRIMINAL LAW – Sentence – Murder – Stabbing on train – Victim not known to prisoner – Prisoner had history of drug-induced psychosis but not suffering from a serious psychiatric illness at time of offence – young offender – lifestyle of drug-taking – altered mental state taken into account in sentence – protection of the public when using publicly provided amenities.

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Gibson	Office of Public Prosecutions

For the Accused	Ms C. Burnside	Ronald V Tait Barristers and Solicitors

1 Cory Acuna, on 5 May 2008 you were convicted of the murder of Darren Jones on 23 February 2006.

2 The case is a tragic one. Mr Jones was unknown to you. He was on the Belgrave line train travelling home from the Victorian College of the Arts. As the train was arriving at Box Hill station you stood up, removed a large knife from your pants and stabbed him three times. The events are recorded on the CCTV on board the train. You left the train at Box Hill and so did Mr Jones. Mr Jones collapsed and died on the platform. You concealed the knife and moved through the crowd and over to the escalator. At the escalator you were approached by Senior Sergeant Jan Cook, who was then the Officer in Charge of the Box Hill Police Station. He had travelled on the same train as you and the deceased from the city but had not seen the incident on the train.

3 Senior Sergeant Cook took you aside and recovered the knife from the front of your pants.

4 Leading Senior Constable Leaumont arrived and spoke to you. The conversation was:

I said, “What is your name, mate?” He said, “Cory Acuna”. I said, “Has Cory got an E in it?” He said, “No”. I said, “What is your date of birth?” He said, “9/8/82.” I said, “What is your address?” He said, “532 Mount Dandy Road.” I said, “Who do you live with there?” He said, “A mate”. I said, “What’s your mate’s name?” He said, “I don’t know, I’ve only known him for a few weeks.” I then asked Senior Sergeant Cook if Acuna had been given his caution and rights. Senior Sergeant Cook informed me that he had not yet had the opportunity to do so. I then had a further conversation with Mr Acuna. I said, “You are under arrest for an assault. I must inform you that you are not obliged to say or do anything but anything you do say or do will be given in evidence, do you understand that?” He said, “Yeah”. I said, “Can you explain to me in your own words what this means?” He said, “Yeah, if I say anything to you, you can record it and give it in evidence at court”. I said, “I must inform you of the following rights, you may communicate with or attempt to communicate with a friend or relative to inform that person of your whereabouts. You may communicate with or attempt to communicate with a legal practitioner. You may communicate with or attempt to communicate with the Consular office of the country of which you are a citizen. Do you understand these rights?” He said, “Yeah”. I said, “Do you wish to exercise any of these rights?” He said, “Yeah, I might need a solicitor”. I said, “We’ll organise that for you once we get things here organised.”

6 You had further conversation with Leading Senior Constable Innes and you told him where you were living. Innes asked you:

7 Shortly afterwards you were taken back to the Box Hill Police Station. The Homicide Squad took over the investigation and your management.

8 You were taken by a Homicide Squad member back to their office. When in the car they conducted what has been called a field interview, with you. In that interview you appear to understand your rights and take part in the interview.

A: And I was just on my way home from the city, and that dude that fucken pissed me off years ago and I just basically fucked him.

A: Cos he was just looking at me the wrong way fucken and yeah he’s just sitting there laughing and shit thinking ha this cunt doesn’t remember who I am ... do you remember you that bird is or what, gone yeah yeah yeah no worries and then this that and the other.

A: Yeah, I haven’t used in two months ... I just had to have some. Smoke pot flat out.

Q 54: Yep, did he get on at Hawthorn or that’s just where you first noticed him?

Q 58: How long was he on the train after you saw him how long were you on the train together for before you stabbed him?

Q 63: Right so are they seats that face each other or were you on opposite sides of the aisle?

Q 67: So what happened, were you getting off at Box Hill were you? Where were you planning on getting off?

A: He just looked, just looked and said something stupid to me and I just turned around and snapped.

A: I don’t know, something racist. I don’t know what his exact words were but ... fuck.

A: Me brain levels, cos I got schizophrenia. Got para ... I don’t know if it’s paranoia, but it’s schizophrenic and if people look at me the wrong way, I just think to meself in me head you know fucken what the fuck are these cunts looking at.

A: Um in the ribs, in between the ribs, the shoulder, the neck. I think that was it.

10 Nothing about any connection between you and Mr Jones or about any conduct by him on the train is true.

11 When you arrived at the Homicide Squad offices, arrangements were made for you to be examined by Dr Sungalia who formed the view that you were not fit for interview. She made that decision because of the combined history which you gave of drug- taking and schizophrenia.

12 That history might have itself raised questions of mental impairment but that was not the end of the matter.

13 You were taken into custody on 23 February 2006 and have been in custody ever since.

14 You were admitted to Thomas Embling Hospital a few weeks after your arrest. You spent two months there as an inpatient. You were then discharged back into the general prison population. After your admission to the Melbourne Remand Centre in June 2006, you had not taken psychotropic medication or any medication for the six months preceding your trial. The final diagnosis at Thomas Embling had been:

Drug induced psychosis, drug intoxication/withdrawal, alcohol cannabis amphetamine abuse, schizophrenic paranoia subtype.

15 Dr Mark Ryan gave evidence at your trial. He thought that by the time of the trial, it was unlikely that you were suffering from schizophrenia. That opinion was based on the fact that in the two years you had been in custody, drug free, there was no sustained evidence of ongoing psychiatric symptoms. In his opinion your history was consistent with a psychiatric type illness related to substance abuse.

16 Dr Ryan said that apart from the fact that you had “misidentified” your victim there was little other evidence from which it could be said that you were experiencing a severe psychotic episode on 23 February 2006. By its verdict the jury must be taken to have rejected that you were undergoing a significant psychiatric episode which interfered with your ability to control your actions or affected the intent which you formed.

17 Dr Ryan further observed that your calm affect after the killing and your mistaken belief as to identity and status of your victim may be psychotic features but he thought it was unlikely that you were significantly psychotic.

18 On the whole of the evidence it does not seem possible to say that you were suffering from an acute psychotic state and therefore a serious psychiatric illness.[1]

19 It seems to me that the Court in R v Sebalj was making the point that if psychosis be at work, then for the purposes of sentencing the cause of psychosis is largely irrelevant because such a condition would be recognised as a serious psychiatric illness.

20 The presence of psychotic features which fall short of acute psychosis will be relevant as part of the circumstances of the offending. In part it provides one explanation for the offending i.e. the delusional belief as to the identity and status of the victim.

21 That explanation, even if true, would be inadequate and can be of no consolation to those who were close to Mr Jones.

22 You probably had some insight into the effect of drugs on you but either chose to ignore or were incapable of responding to the warning signs. You were told that you were suffering from schizophrenia and that diagnosis was probably wrong. Even if it were correct, the ingestion of drugs could not help whether in combination with medication or not.

23 For a number of years you had been living in a drug addled world. That background helps explain the state you were in at the time of the killing. I am driven at the end of the day to say that although these matters are to be taken into account, to use the words of Vincent JA in Sebalj:

It would be seldom that a self-induced psychosis would result in a significant lowering of the sentence imposed[2].

24 The presence of the psychotic features described by Dr Ryan is one of the matters which I have taken into account in sentencing you. It lowers your moral culpability but not to a significant degree.

25 There is little which can be said about the circumstances of the offending. The crime is serious; it involved the use of a weapon, it was gratuitous, it was random, it was on a train in the presence of a number of other passengers, at about lunchtime, near a busy station and it was entirely pointless. Your victim was taken by surprise and was defenceless.

26 Those close to Darren Jones, a very loving family man and musician who was just setting out on his career, are inconsolable. That is all the more so because the killing of Mr Jones has about it all those features set out above. In all, 15 victim impact statements were filed and the victim impact statements of Annette Jones, the deceased’s mother, and Glen Jones, his father, were read out on the plea. In the victim impact statements his mother, father, partner, partner’s family, sisters, family friends and personal friends all spoke eloquently and movingly of their affection for Darren Jones and their loss.

27 Darren Jones was 28 years of age. The fact that the victims’ loss is devastating and ongoing was accepted on your behalf on the plea.

28 It is plainly the law that victims are entitled to have their say in the sentencing process and their right to do so is set out in s.95A of the Sentencing Act 1991. In addition, I am obliged, among a number of other matters, to have regard to “the impact of the offence on any victim of the offence”.[3] I have taken the impact on the victims into account

29 You, Cory Acuna, are now 26 years of age having been born on 9 June 1982. You were 23 years of age at the time of the commission of this offence. I have access to a large amount of material about you. I have a report from Dr Ryan, a psychiatrist from Forensicare, who gave evidence both on voir dire and at your trial. I have a report from Mr Bernard Healey, psychologist. Your mother Lisa Pollock gave evidence at your trial and your friend Paul Stevens gave evidence on voir dire and at your trial. Your aunt Gai Burton gave evidence on your plea. She later wrote to me. I have placed the letter on the file but have not had regard to it with regard to this sentence. In relation to the material given on voir dire, I received that separately as exhibits on the plea. I also received as an exhibit on the plea, 22 pages of material which had been provided to the prosecution by your solicitor.

30 You were born at Moruya near Batemans Bay in New South Wales. Your mother, who tries her hardest to support you, was then 15. Your father is aboriginal but you have little to do with him. Such contact as you appear to have had, has been rather negative. You lived with your mother and her parents until your mother commenced a relationship with your stepfather. You then were about 7 years of age.

31 You lived in Narooma until you were about 14. You are reported to have got on all right at school. You struggled academically but were very good at sport. At the age of 13 you represented south eastern New South Wales at rugby league. Your aunt said that your aboriginality would have been a disadvantage at that time. In her opinion, racism was embedded in the local community. I do not doubt her description of the community, but neither you nor your mother have commented on that aspect of your life. You do not speak of your aboriginality. I accept that as an essential part of your background it has created difficulties for you. It was almost certainly a negative feature of your education in Victoria. The fact that your nickname was “Muddy” speaks to that. However, those matters were overwhelmed by your substance abuse and resultant mental illness.

32 When you came to Victoria in about 1996 you lived in the Yarra Valley where you went to Upper Yarra Secondary College. You left school when you turned 15. At some stage the family moved to Mt Evelyn.

33 You started an apprenticeship at Mercedes Benz in Ferntree Gully but did not complete it.

34 From about 2001 you have led a difficult life which in many ways could be characterised as aimless.

35 What follows is a history of substance abuse accompanied by mental illness, sporadically punctuated by appearances in the courts.

36 This history of substance abuse is relevant. You first used cannabis at age 13 and thereafter used it occasionally. Over the years this use increased to daily use. From ages 18 - 19 you became a heavy user of alcohol and that continued over a number of years. You said you used amphetamines perhaps every few months but others have suggested more frequent use than that. After other means of use at first, you came to use it intravenously and you have said that you ingested amphetamines the night prior to the killing of Mr Jones. You told Dr Ryan that amphetamines would keep you “happy ... full of energy”. You said that “coming down” made you “angry”, especially when you had not slept.

37 Your psychiatric history appears to begin in about 2000 when your mother reported you to Maroondah Hospital. At about that time your apprenticeship failed. You were managed thereafter by the Maroondah Hospital Area Mental Health Service. You were admitted to the Maroondah Psychiatric Unit three or four times between 2002 and 2005. You were placed on Community Treatment Orders and given injectable anti-psychotic medication for a number of years after your compliance with taking oral medication was unsatisfactory. You were taken off your last Community Treatment Order in September 2005. During that time you were believed to be suffering a schizophrenic psychosis and poly-substance abuse.

38 You were also supported by your mother, stepfather and friend Mr Paul Stevens who gave you as much support as they were able. Mr Stevens almost certainly thought that some of your drug taking alleviated your mental condition when in fact it was probably the opposite. His position was not surprising given your involvement with local mental health services. Your mother and stepfather simply did their best. Your aunt gives you her support.

39 Although it now emerges that any psychosis you have suffered from in the past is drug-induced, you were led to believe that you suffered from schizophrenia. Your substance abuse was so consistent that either drug use or drug withdrawal masked any other symptoms. You did, however, have support in the community. As I have already said, you were placed on several Community Treatment Orders.

40 Your prior offending which I will outline below gave you access to other support. In 2001 and 2002 you were given an opportunity to take part in what was termed “the new TRAX training program”. In 2002 that was accompanied by a Community Based Order with conditions to undergo assessment and treatment for alcohol and drug addiction. You failed to comply with that Community Based Order. You were on another Community Based Order at the time of offending.

41 Although your circumstances were difficult, it cannot be avoided that you failed to take advantage of those opportunities offered to you. I suppose it is trite to say that programs such as those offered to you only work if you have the capacity and will to make them work. Your drug addictions with psychiatric consequences made it very difficult, if not impossible for you to get the benefit of those programs.

42 Your prior convictions are not for particularly violent offending, although you have two convictions for resisting a police officer. From four court appearances you have thirty prior convictions. The prior convictions include arson and theft. As I have already observed, following your conviction in October 2005 you were placed on a Community Based Order which was not due to expire until 5 October 2006. Elisha Gamble was the Community Corrections Officer in respect of that order.

43 You made some attempts to comply with that order and attended meetings with Ms Gamble. You said to her in November 2005, “I just feel like killing somebody.” When asked, “Anybody in particular?” you replied, “Anybody random”.

44 You did not reveal the same level of agitation at meetings in December 2005, January and February 2006. You did not attend an appointment on 21 February 2006.

45 Apart from the matters set out above, the prior offences are not otherwise relevant to the sentence I am about to impose.

46 In November 2005 your grandmother, with whom you had a very close relationship, died, causing you great upset. Both your mother and your friend Mr Paul Stevens were concerned about you at that stage.

47 According to Dr Ryan and your mother, your psychiatric history, particularly that of admissions to psychiatric hospitals, has been marked by your withdrawal from both amphetamines and marijuana.

48 Insofar as it can be ascertained, that is probably the state you were in on 23 February 2006. The degree of psychosis is not great, as is shown by what you said to the various police officers, which I quoted earlier in my remarks. However, you were in a declining state which led to your admission to Thomas Embling some four weeks later.

49 It is of concern that you had an “idea” of random killing in your mind when speaking to Ms Gamble in November 2005 and that in January 2006 when at Mr Stevens’ house in Kilsyth you made an accusation to a mutual friend of owing you $2000 and that you threatened to kill him. The allegation had no foundation in fact.

50 The fact that you were carrying a large knife concealed on your person at the time of the offence has never been addressed by you or explained.

51 In accordance with the authorities, your altered mental state must be taken into account in sentence (see R v Verdins,[4] R v Tsiaris[5], R v Sebalj[6]). The psychotic features were not sufficient for Dr Ryan to say that you were undergoing a serious psychotic attack. The features therefore indicate an altered mental state, and, as I have already indicated, reduce your moral culpability to some degree. I also accept that general and specific deterrence should be moderated.

52 Insofar as you are able, you have expressed remorse and regret for what you have done. Your trial was conducted on a narrow basis.

53 It seems on the evidence of Dr Ryan that there is every prospect that when you are drug-free, you are psychosis free. That augers well for the future and your prospects of rehabilitation are better than might have been reckoned. In one sense you are now less of a threat to the community than might have once been thought but that view is tempered by the proposition that it will depend upon your ability to abstain from substance abuse. Mr Healey found that you had a vulnerability to substance abuse.

54 On the question of rehabilitation, although you did not do well academically while at school, you did well at sport. You have taken part in some sporting activities after leaving school. Your aunt described you as intellectually moderate and Mr Healey, psychologist, found your IQ to be in the lower one third in your age group. Although you completed a good part of your apprenticeship at Mercedes Benz, you still had six or seven modules of theory to complete. Your mother has said that those parts of the apprenticeship were a challenge to you. At one stage you worked occasionally as a labourer. In the years before this offence you survived on a Disability Support Pension of about $400 per fortnight. Whilst in custody you have taken advantage of any opportunities made available to you, in particular you have become involved in an immersion program designed specifically for Koori prisoners.

55 You committed this offence at a young age and I take that into account. Because this is an example of very serious offending, your youth is not of such great significance as it would be otherwise[7]. It is nonetheless a very important feature of your sentence.

56 Your offending brings into sharp focus the vulnerability of those who depend upon public transport. The protection of the public when using publicly provided amenities is very important.

57 I must have regard to just punishment, personal and general deterrence moderated in the way that I have already indicated.

58 What emerges is that your life has been very negatively affected by substance abuse. That is bad enough. It has had a profound effect on those close to you. It has led to the death of an entirely innocent victim in appalling circumstances.

59 Yours is a cautionary tale to all those in the community who promote or condone the use of drugs, and in particular marijuana and amphetamines.

60 As I have already observed, the circumstances of your offending could not be much more serious.

61 Taking all that has gone before into account, I sentence you to be imprisoned for 22 years, and because I do see some hope for you in the future, I fix a lower than usual non-parole period of 17 years.

62 I declare that 930 days be reckoned as served and I direct that there be noted in the records of the Court the fact that this declaration has been made and its details.

Supreme Court of Victoria Decisions

R v Acuna [2008] VSC 351 (10 September 2008)