DPP v Nichol [2017] VSC 809

3 A short audio-visual recording of one of Brett's episodes was tendered on the plea and I have watched it. Night terrors is a very good description of what can be seen.

4 Those night terrors commenced in 2012. In 2015, your then husband, Michael, left Australia to work in Jakarta, Indonesia. In February 2016, he sought a separation and then divorce as he had found a new partner. You were very upset about that, not least because it left you as Brett's sole carer. Consistent with his autism, Brett was adversely affected by his father's absence.

5 After your husband moved overseas, it appears that the arrangements for Brett's care were that he was in an adult care centre for three days a week and you had help with him on another two days. You were otherwise responsible for his care. That meant that you were alone at night except for some support from your family. In one 14-day period, you slept for only 10 hours in total.

6 Your husband returned to Australia in early 2017, and had the care of Brett every second weekend.

7 In the latter part of 2016, you had contacted the National Disability Insurance Scheme ('NDIS') soon after its commencement to get support with Brett's care. Brett had a coordinator at NDIS and a psychologist through Austin Health. In April 2017, Brett was referred to Associate Professor Robert Davis, the Clinical Director at the Centre for Developmental Disability Health Victoria.

8 Brett was assessed on 24 April 2017. You regarded that development as very hopeful. At the assessment, it became apparent that further review would be required. You thought that such a review would be in the near future.

9 On 25 May 2017, you found out that the review would not happen until September. You tried to contact both the NDIS coordinator and Brett's psychologist but were unable to do so and received no reply. That led you to make the decision to kill Brett and to kill yourself.

10 On the night of 27 May, probably around 9 pm, you gave Brett tablets of dothiepine and fluoxetine in his yoghurt and made a quite deep cut in his wrist. You took the tablets and cut your own wrist. You had left a number of notes to your sisters, your other son, Gary, and your exhusband, Michael. You had also left some other letters and a general letter. The main theme of all the letters was that you wanted to end Brett's suffering. You went to bed with Brett.

11 You awoke the next afternoon. At 3.50 pm you rang '000' in which you sought help for Brett. You admitted what you had done and expressed remorse. The police and ambulance attended shortly afterwards. You told the police that you had cut Brett's wrist with a razor after feeding him medication to 'end it all, the pain and the suffering.'

12 You were charged with attempted murder and taken into custody and made further admissions. You were assessed by a mental health clinician as not requiring detention for your own safety and to be fit for interview.

13 In the interview you said, 'Well I tried to take my life and my son's.' Later, you said:

My thought - oh, look, at first I didn't know. I thought, oh, how am I gunna do this. And then I thought, All right. We'll just take tablets. And then I thought - there wasn't enough there, and I thought, oh, that's not gunna work. And then I - that's when I thought - that night, I don't even know, I thought - oh, I - I was struggling with it. I was, like, walking, pacing, going, What are you doing. What - what are you doing. You can't do this. There was - there was another - there was another part of me saying, No, no, no, no. It'll be all right. It'll be all right. Call someone. And I'm going, No, no, no. He can't. It was like this - he's just gunna keep suffering. It was more the fact of, you know, watching him suffer through this.

I just got the razor blade, I took it out of the razor, like, 'cause you know, and I just got a knife and took it out and I just went - and you were demonstrating - and looked away. And I did the same to him. And then I just did it and then went, O.K. There's no more pain now ... pain's gunna to go away.

15 I quote those passages as part of the indication of the matters that were motivating you on this night. Although the cut made to Brett's wrist was fairly deep, it does not appear to have caused any major injury, and he has recovered from the effects of this episode.

16 You were released on bail on 29 May 2017, and very soon thereafter sought medical assistance, particularly through your general practitioner, Dr Hugh Palmer. He provided a letter setting out much of your relevant history and the details of the treatment that he organised for you. He has seen you at least nine times after 30 May 2017. You were assessed as suffering from major depression and referred to the North Eastern Area Mental Health Service for ongoing psychiatric treatment, which continues.

17 I also received a positive letter from Dr Akshay Ilago about your ongoing psychiatric treatment. An equally positive letter was provided by your suicide prevention counsellor, Ms Jeanette Shepherd. Equally importantly, you have the support of your family, in particular your sisters and other friends, many of whom came to court today to give you their support. I received a number of powerful references on the plea. You have particular support from your other son, Gary. There is now a family violence intervention order in place which effectively means you can only see Brett on Sundays and in the company of your sister.

18 What the future holds we do not know, but I am satisfied that your separation from Brett causes you great distress, and is of itself a kind of punishment.

19 I received a psychiatric report from Associate Professor Andrew Carroll, who examined you on 21 November 2017. In his report dated 26 November 2017, Associate Professor Carroll diagnosed you with a Major Depressive Episode at the time of your offence. He stated:

Up until recent years, she appears to have coped well with the immense challenge of caring for Brett.

In late 2015 however, her marriage to her previously supportive husband, Michael, broke down and she was left to largely manage Brett's needs by herself. She had some support from carers, but nonetheless began to find the process progressively exhausting.

After the breakdown of her second marriage, it appears that Brett's night terrors worsened and resulted in her never obtaining satisfying sleep. Pervasive exhaustion set in and by April/May 2017, she admits that she was having to put on a smiling 'front' to the world, despite feeling despair inside. Her appetite began to diminish and her exhaustion worsened.

After seeing a specialist in early May 2017, she temporarily brightened, hoping that there would be some final resolution to the problem with night terrors. However, when she subsequently found out that her next appointment with the specialist was not for another four months, she rapidly decompensated into a state of despair. Matters were compounded by the fact that funding for her night-time carers had by then expired and by her sense that people in the care system did not care about her or Brett, since they did not return her calls.

In hindsight, it seems clear that Nicholl was diagnosable with a Major Depressive Episode, which had its onset around April 2017 and which has only fully resolved in around September 2017. The most notable symptoms were:

• feelings of exhaustion;

• loss of motivation to socialise;

• suicidal thinking;

• lowered mood, albeit frequently hidden by a 'mask' of wellness.

Matters were likely compounded by Nichol's coping style, wherein she tends to minimise her own needs and not seek help from others until matters have reached an extreme degree.

She has multiple risk factors for depressive illness, including: genetic loading; multiple traumas in childhood and early adult life; marital stress in recent years; chronic stress in the form of caring for her severely disabled son; and chronic sleep deprivation over a period of over a year in the leadup to May 2017.

20 Associate Professor Carroll observed that your mental state had improved significantly since receiving treatment following the offence:

Now, with the benefit of some six months of psychological and pharmacological treatment, she appears to have fully recovered from her Major Depressive Episode. She is insightful into the need for ongoing mental health care.

...

Her mental capacity and functioning are now intact.

At the time of the offending, they were severely impaired due to her depressive symptoms. Most notably, she had a pathological loss of perspective wherein she could no longer see beyond her here and now situation, which at that time was one of intense anguish and psychological pain wherein she was witnessing her son in intense fear and distress on a nightly basis. She could see no way out of her predicament aside from suicide, and her judgement was profoundly distorted by her depressive illness. In this state, she formed the view that Brett would be better off dead if she was no longer there to care for him. Indeed, on some level, she felt morally compelled to end his suffering and could see no other way of doing so other than bringing about his death.

21 Still, your thoughts during the examination were predominantly about Brett:

She was preoccupied with the wellbeing of her son, Brett, and the fact that she misses him now that she has only limited contact. She is also preoccupied with future plans for Brett, including his eventually moving into permanent supported accommodation. She expressed a degree of grief at what she perceives as the loss of her role as his "mum".

...

She expressed ongoing profound feelings of guilt with respect to the offence: in particular, she feels guilty around the impact on Brett that he now has only limited contact with her...

22 In Associate Professor Carroll's opinion, your prospects of rehabilitation are excellent and your likelihood of re-offending very low.

23 I am satisfied that your plea was very early, that you are remorseful, that your degree of moral culpability is low, and that the principles of both general and specific deterrence should be significantly moderated in your case.

24 The law recognises that there is a place for compassion and mercy. I am satisfied that yours is a case which calls out for a merciful disposition.

25 I have had you assessed for the imposition of a community correction order, and it is recommended that you be placed on such an order. I note that you have consented to the making of such an order.

26 I order that you be released on a community correction order ('CCO') for a period of 24 months. The order commences immediately.

27 I indicate that had it not been for your plea of guilty I would have imposed a sentence of four years' imprisonment with a non parole period of two years. I direct that this indication be entered in the records of the Court.

28 Because of the supports that you already have, I suspect that Community Correctional Services will work out with you exactly what you have to do as part of your CCO, as against things you are already doing for yourself. I do not think that Community Correctional Services will want to interfere too much, but the CCO is there as an extra support mechanism and you have to comply with those orders.