DPP v Boodhoo [2016] VSC 458

3 You entered an early plea of guilty at the post-committal directions hearing before Lasry J on 23 December 2015.[2]

4 The offence occurred at the family home you shared with your wife and 11-year-old son.

5 The background to your offending was that you experienced spiralling depression after you resigned from your employment as Acting Director of Nursing at an aged care facility. Your resignation in October 2014 was prompted by the appointment of another person to your role.

6 You began to ruminate about your loss of employment, and your financial and business affairs and developed chronic insomnia and experienced disturbing nightmares.

7 According to your wife, in the ensuing period you twice tried to commit suicide.[3] You were seen for a brief period by social workers following a hospital admission where you disclosed suicidal ideation and were diagnosed with depression.[4]

8 You believed that your life had become intolerable and voiced concerns that your death would expose your wife and child to even greater suffering. You researched mercy killings and began to put aside items such as knives and lengths of rope. Your wife sought to calm and reassure you and removed these objects from locations where you stored them.

9 It seems that you lacked insight into your psychiatric decline and masked the level of depression you were experiencing from mental health professionals.[5]

10 You catastrophised about the future and expressed irrational and paranoid fears. You warned your wife of the risk that someone would drug her and kill her when she left home to take your son to school.

11 You became convinced that you and your wife were going to be prosecuted for undertaking a residential building without the mandated building approvals in place and that you would both be sent to prison.

12 You also spoke of the need to compensate someone in case they hired a person to kill you both.[6]

13 You fixated on the idea of persuading your wife that you should conjointly end your lives and you began to pressure her to join in such a plan. The constant pressure caused your wife to indicate consent at one stage although she did not in fact agree with your plan.

14 Two weeks before the offence, you had made something of an attempt to strangle your wife, but when she escaped your grip and challenged you about the incident, you explained it away. Your wife did not report this prior attack to the police.

15 Early on the morning of 25 August 2015, you indicated to your wife that this was the appointed day on which to carry out the plan as it could not wait any longer.

16 You decided that the pair of you should drop off your son to school and then put the plan into effect.

17 After returning home with your wife, you locked the front door and a protracted episode occurred in which you forced your wife onto the floor and tried to strangle and smother her despite her resistance.

18 Eventually, you became tired and your wife got back on to her feet and managed to escape outside to telephone the police. She told the emergency services operator, '... the second time I escape, maybe third time I won't be lucky [sic].'[7]

19 When questioned by your wife, you admitted that you were trying to kill her. It is, however, of significance that, after your wife had escaped from the house, you did not pursue her and did not seek to prevent her from calling the police.

20 You told police after your arrest that you had thought about it for a long time and decided that life was not worth living and you expressed pessimism for the prospects of your family in the event that you succeeded in taking your own life.[8]

21 When spoken to by police at the scene, you made full admissions and you maintained those admissions when spoken to later in a recorded interview at Broadmeadows police station.[9]

22 You admitted that you had forced your wife into the bedroom and tried to strangle her with your hands and that, despite your wife's resistance, you had in fact been trying to kill her.[10]

23 To your credit, you have not sought to evade responsibility for your actions and have co-operated fully with the investigators. You have complied with psychological and psychiatric assessments whilst in custody.

24 Your wife's injuries included bruising and erythema on her neck, petechial bruising on the roof of her mouth and an abrasion on her neck. Dr Andrea Ryan, Forensic Medicine Registrar, opined that those injuries were of a kind that can be seen in cases of neck compression,[11] and that they were 'minor and should heal quickly without long term complications.'[12]

25 You are 65 years of age and you have no prior convictions.

26 Until late 2014, you were happily married and gainfully employed and led a blameless life.

27 You married Chooramany Boodhoo, the victim of your crime, in 1992. You had been married to her for 23 years at the time of the incident.

28 Throughout your marriage, you were the sole provider and worked diligently to support your wife and adopted son.

29 You had been married once before and have a daughter from that marriage but are not in contact with your former wife and daughter.

30 You migrated to Australia from Mauritius in 1986 after studying nursing in England.

31 You have lived intermittently in Australia since 1986, with a lengthy period back in Mauritius between 1998 and 2008.

32 Your work in nursing has mainly been in the field of aged care.

33 Your most recent role was as Acting Director of Nursing at a nursing home in Essendon.

34 A victim impact statement from your wife was read aloud in court.[13]

35 She was physically and emotionally hurt by your actions. She had pain in the ribs, hips, arms and throat for which she took pain relief. Her trust in you was broken, because she had given her life over to caring for you and your adopted son . She felt that she had previously been blinded by sympathy for your condition, but since the incident has lost her peace of mind and become fearful and traumatised.

36 Your psychiatric decompensation was at the core of your offending.

37 When this matter first came on for plea on 29 February 2016, a psychological report prepared by Carla Lechner was tendered by your counsel,[14] and I was invited to adjourn the plea whilst a neuropsychological report was sought. I was also invited to obtain a pre-sentence report from Forensicare.

38 This was done and the plea was resumed on 17 June 2016. At that time, further reports were tendered including a psychiatric report from Dr James Belshaw[15] of Forensicare and a neuropsychological report from Sara Fratti of arbias.[16]

39 Ms Lechner said that at the time of her assessment on 23 February 2016, you showed symptoms of Major Depression. She noted that your mood was lowered and that you complained that your thinking was slowed.

40 You told her that prior to your arrest you had been worried about you and your wife being sent to gaol because of an investment property that you and your wife had constructed in breach of building permit regulations.

41 You said that you had attended a local doctor and were prescribed anti-depressant medication but only took this for about one month and that you had attended a psychologist for two sessions but found it of no benefit.

42 You spoke of previous unsuccessful suicide attempts and said that since your arrest you still had suicidal ideas but had not acted on them in prison.

43 On psychometric testing, you were found to fall within the extreme range for depression.

44 Because of a concern about delusional thinking and possible cognitive deterioration, Ms Lechner recommended obtaining a neuropsychological report and a psychiatric report. She found the sudden decline in your mental health and mood state in the period prior to the offence to be unusual.

45 She noted that you expressed regret for the effect on your wife of your actions.

46 You were seen by Clinical Neuropsychology Registrar, Sara Fratti, on 29 March 2016.

47 The history she obtained was consistent with that obtained by Ms Lechner.

48 At the time of her assessment, you were not on any psychotropic medication. She described you as a reserved man with no interests and no social engagement.

49 Your effort on formal testing was sub-optimal and she found you to be distractible and inconsistent across tasks. This impaired the validity of the testing, rendering it impossible to properly assess your cognitive powers relevant to any possible organic injury or illness.

50 Ms Fratti noted the need for psychiatric evaluation and pharmacological treatment before any further testing could be conducted.[17] This recommendation tied in with the subsequent psychiatric evaluation which suggested that neuropsychological testing would not be useful until your psychiatric state was stable.

51 Dr Belshaw conducted two interviews with you on 24 March 2016 and 7 April 2016 and had access to the report of Ms Lechner, the prosecution plea opening,[18] and transcript of proceedings.

52 You told him that, after resigning from work, you had attended a general practitioner and been referred for psychiatric assessment and for a few sessions with a psychologist. You said that they thought you were all right and did not wish to see you again. You said you took anti-depressants for two months before self-ceasing. He noted your inability to recall specific details about your personal history.

53 He commented on the contrast with your earlier life, in which you had adapted well to the demands of nursing and apparently worked at a satisfactory level in different countries for many years.

54 You struggled to provide an accurate chronology of your life and at times provided contradictory information.

55 As a result of his intervention, the prison management facilitated a visit by a consultant from Forensicare, and you were then placed on antidepressant medication on the 31 March 2016. This had not ameliorated your condition by the time of his second consultation with you.

56 Dr Belshaw diagnosed a severe depressive illness with psychotic symptoms. In his opinion, you were suffering a severe depressive episode since your resignation from work in October 2014.

57 You told Dr Belshaw that you deserved to be in prison for the rest of your life because of the attempt on your wife's life but also for building a house illegally.

58 In your interviews with Dr Belshaw, you said that you no longer have thoughts of harming your wife and son.

59 Dr Belshaw considered that your fixed belief that you and your wife would be imprisoned for life for building permit breaches was delusional and that you remained adamant in this belief system despite there being no evidence for your conclusions.

60 He also opined that you had developed a fixed and irrational belief that your wife had consented to your murder-suicide plan because she had expressed to you that she would rather die than go to prison over the building permit issue.

61 He considered that you appeared cognitively impaired during his assessment and that you had limited insight into your depression and need for treatment. He described you as suffering from impoverished thinking and speech and demonstrating psychomotor retardation and noted that you continued to report symptoms such as poor energy and sleep, poor appetite, weight loss,[19] and feelings of guilt and hopelessness.

62 He noted that, despite your belief that you did not need psychiatric help, you were nevertheless prepared to comply with treatment. He also noted that you had no history of anti-social behaviour, substance abuse or significant early maladjustment.

63 He considered that you needed to be assertively assessed and treated by prison mental health services, with consideration given to transferring you to a secure hospital if you became non-compliant with treatment.

64 In his view, your mental and physical health were significantly impacted by your imprisonment, as evidenced by the duration of untreated psychotic symptoms until coming to the attention of Forensicare after a court report was requested. He stated that ongoing incarceration is not generally conducive to recovery from serious mental illness. He felt that you needed to be in a more active therapeutic environment in order to alleviate your symptoms and that this would reduce the longer term risk of harm to yourself and others.

65 Dr Belshaw described you as having a moderate risk of re-offending.

66 Your counsel, Ms Churchill, relied on the following main factors in mitigation of sentence:[20]

(a) Firstly, your cooperation with police and full admissions;

(b) Secondly, your plea of guilty at the earliest possible stage, and the value to be attributed to your plea which spared your wife from testifying in court;[21]

(c) Thirdly, your remorse and regret for your actions as expressed to the authors of the psychological and psychiatric reports;

(d) Fourthly, your lack of any criminal history and previous good character;

(e) Fifthly, your social isolation in prison and lack of support due to being cut off from your family by your offending;[22]

(f) Sixthly, that the weight to be given to general deterrence, just punishment and denunciation should be moderated because of the mental health considerations which influenced your offending and continue to affect you; and

(g) Seventhly, that specific deterrence was of limited relevance in your case, because of your mental illness and that rehabilitation and community protection were best addressed by addressing your mental health needs.

67 Regarding the psychiatric and psychological material before the court, she submitted that all limbs of Verdins[23] were applicable to your offending and to your current circumstances in prison. She noted that, since Dr Belshaw's intervention, you had been moved to the Acute Assessment Unit at the Metropolitan Assessment Prison and placed on anti-psychotic medication.

68 Ms Churchill conceded that a term of imprisonment with a non-parole period was the only appropriate sentence.

69 Implicit in her submission was the prospect that you could expect to receive mental health treatment and supervision if granted parole.

70 Mr Tinney SC, for the Crown, conceded that Verdins had application and reduced your moral culpability. He accepted that this should lead to moderation of specific and general deterrence, but that community protection was also important in your case owing to the potential continuing risk arising from your ongoing psychiatric condition.

71 He referred to DPP v Kemp[24] as highlighting the need to balance each of these considerations appropriately where there is evidence of unremitting mental illness.

72 He also submitted that this was not a case where delusions drove the actual commission of the offence at the precise time you attacked your wife, and that you were aware at that time that your wife was resisting but went ahead anyway.

73 He argued that, although the weight to be given to deterrence was reduced (but not eliminated) because of your depressive illness, there was still a need to convey the court's condemnation of those who seek to take the life of another, even if prompted by misguided or impaired thinking at the time.

74 Both parties made reference to the comparable cases of R v Kasulaitis[25] and R v Kelly,[26] but noted the limitations of any comparison with your case, especially in light of the lack of any punitive aspect to your offending.

75 In conclusion, I accept that each of the matters put forward by Ms Churchill in mitigation of sentence have substantial relevance to your ultimate sentence. I agree that Verdins considerations have relevance to the sentence as a background trigger to the actual offending, and because you are still labouring under the effects of a major depressive illness. Although your offending was driven by severely impaired mood and diminished judgment, you were capable of appreciating the moral wrongfulness of the actions you embarked upon.

76 The principles of just punishment, denunciation and specific and general deterrence require moderation in light of the evidence before the court.

77 I also accept that your condition is such that you will likely find prison more burdensome than would a person of normal mental health and that there have been significant adverse effects on your mental health whilst on remand, some of which may continue despite recent changes to your management in prison. I should add my own observation that during each appearance in court before me, your presentation has been very subdued.

78 The factual background to your offending is unusual in light of your previous good character and the sudden and unexpected lapse into acutely disturbed behaviour.

79 Sadly, your presentation before this offence did not provoke sufficiently assertive treatment, despite signs that you were suffering from severe depression and psychotic delusions.

80 I accept that you are remorseful for the harm caused to your wife.

81 It is of concern that you were reluctant to pursue mental health treatment prior to your offending, which raises questions about your future prognosis given your minimal insight into your psychiatric condition. The fixed delusional beliefs you hold related to your investment property have not diminished. However, there is reason to expect that your psychiatric condition will be more effectively managed in the future, such that you will not pose a risk to the community upon release.

82 Taking these factors into account, I consider that you have reasonable prospects of rehabilitation, which will be enhanced by ongoing psychiatric supervision and treatment.

83 I have also taken into account your mature years and frail physical state.

84 Under the principle of parsimony set out in s 5(3) of the Sentencing Act 1991 (Vic) ('the Act'), I am required to impose a sentence that is no more than is necessary to achieve the purpose or purposes for which the sentence is imposed.

85 Ramesh Boodhoo, I sentence you to six years and six months' imprisonment with a minimum non-parole period of four years.

86 Pursuant to s 18 of the Act, I declare that you have served 345 days of pre-sentence detention, excluding today.

87 Pursuant to s 6AAA of the Act, I declare that were it not for your plea of guilty, I would have sentenced you to seven years and six months' imprisonment with a minimum non-parole period of five years and six months.

[1] Crimes Act 1958 (Vic) s 321P.

[2] Both your counsel and the Crown submitted that your plea of guilty should be viewed as being at the first available opportunity. Although a plea of not guilty was recorded at the committal hearing on 15 December 2015, you were not formally represented at the time.

[3] Statement of Chooramany Boodhoo dated 25 August 2015, contained in depositional material 1, 1.

[4] Statement of Chooramany Boodhoo dated 4 September 2015, contained in depositional material 5, 7.

[5] Ibid 7: 'He went to the doctor recently and he had a colonoscopy because he thought he had bowel cancer... Following the colonoscopy he saw the doctor and he told them he was not depressed cos he knew that the social worker would come again, that was about two weeks ago.'

[7] ETSA Emergency Call Transcript timestamped 25 August 2015 at 10:17:29, contained in depositional material 47, 53.

[8] Record of interview dated 25 August 2015, contained in depositional material 191, 201 (Q&A 77: 'If I commit suicide. I didn't want my family to suffer. All - we all in the same boat. I didn't - I don't want to leave them behind and let them suffer.'

[9] You were interviewed on tape and answered questions despite being found unfit for interview due to your mental state.

[10] Record of interview, above n 8, 199 (Q&A 63).

[11] Dr Andrea Ryan, Confidential Forensic Medical Report - Physical Assault, RE: Chooramany Boodhoo (28 August 2016), contained in depositional material 20, 25.

[13] Victim impact statement of Chooramany Boodhoo declared on 11 February 2016 (Plea Exhibit 1).

[14] Carla Lechner, Psychological Assessment and Report of Ramesh Boodhoo (24 February 2016) (Plea Exhibit 2).

[15] Dr James Belshaw, Psychiatric Court Report Re: Ramesh Boodhoo (4 May 2016) (Plea Exhibit 6).

[16] Sara Fratti, Neuropsychological Court Report Re: Ramesh Boodhoo (27 April 2016) (Plea Exhibit 4).

[17] She recommended a delay of at least 12 months before further neuropsychological testing.

[19] You are reported to have lost 5 kg whilst on remand.

[20] Submissions and further submissions on the plea (Plea Exhibit 5).

[21] Your counsel also relied on the utilitarian value of your plea of guilty.

[22] You have received no visits from family or social support on remand: Transcript of plea hearing, DPP v Boodhoo (Supreme Court of Victoria, Jane Dixon J, 17 June 2016) 19.

[23] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[24] DPP v Kemp [2015] VSCA 108; See also R v Cheney [2009] VSC 154.

[25] R v Kasulaitis [1998] 4 VR 224.

[26] R v Kelly [2000] VSCA 59.