DPP v Rolfe [2008] VSC 528

2 Mr Rolfe, stating the reasons for sentence will take a little less than half an hour. Because courts are open, it is important to state openly the reasons for sentences. If you are finding it too difficult, do tell me and we will take a break. If you can manage it, it is best that we do and conclude it.

3 The relevant facts of the offence may be stated as follows, taken from the depositional material and the helpful opening of the learned prosecutor, Mr Beale.

4 On 17 November 2007, at about 9.30am, Community Care Worker Gayle Davis, who had been assisting you and your wife for some months, attended your home at 13 Venus Street, Inverloch. From outside, she noticed a very strong smell of gas. There was no response to her knocking. The police were contacted and shortly afterwards firefighters arrived and entered the house. They found you and your wife in the master bedroom lying on the bed under a doona and blankets. There was a gas bottle on the floor beside the bed with a short hose leading into the bed under the doona. The hose ran over your left hip and was nestled under your arm. You appeared to be hugging your wife who was facing towards you. Your wife was dead and you were unconscious.

5 Firefighter Higgins turned off the gas bottle and opened a window. Paramedics administered oxygen to you. You then regained consciousness and were immediately taken to hospital by ambulance. As you were being taken to hospital, you said "leave me alone, let me go".

6 The last known person to see your wife alive, apart from yourself, was Careworker Ann Harris who attended your home during the late afternoon of 16 November 2007.

7 A suicide note written by you was found in the dining area at your home.[1] It read as follows:

"I am sick of the meals on wheels, and other food cooked they are tasteless and Janetta cannot eat them, we don't want to be parted or put in a home. Janetta told me tonight there is only one way out.

We have had a long happy life together and need peace

• Bernard"

8 An autopsy was conducted on your wife at the Coronial Services Centre, Southbank on 18 November 2007. The pathologist, Dr Matthew Lynch, found that the cause of death was a combination of the toxic effects of volatile substance (propane) inhalation in the setting of coronary artery atherosclerosis. The final mechanism of death was cardiac arrhythmia. The pathologist also noted evidence of Alzheimer's disease, mycardial fibrosis, pulmonary oedema, nephrosclerosis and cholelithiasis.

9 Your wife was born 1922 and you in 1927. At the time of your wife's death she was almost 86 years of age and you were 80 years. You are now 81 years. You and your wife were married in 1952, and had 3 children, one of whom is now deceased.

10 Care Manager Rayssa Beechin, who managed the provision of care services to you and your wife from early 2006, observed your wife to be "very happy" with you. Careworker Ann Harris observed that "you appeared to be a very loving couple who cared deeply for each other". Dr Joy Linton, General Practitioner, of Leongatha, states that your wife was diagnosed with vascular dementia in 2006. In a report dated 19 March 2008 Dr Linton stated that your wife

" remained alert and aware and I always considered her cognitively sound - her limitation was more an expressive dysphasia than receptive."

Dr Linton's opinion in relation to your wife was that

"regarding her mental capacity to understand and agree to a suicide pact,...she would be capable of this".

This is a relevant and important finding. This is not a case of one person making a decision for another.

11 According to Careworker Gayle Davis, your wife was non-verbal, incontinent and non weight-bearing. Careworker Ann Harris stated "from my observations of Janetta and Bernard I would say they could definitely communicate with each other even if it was not with words but only with gestures or looking at each other."

12 In the months leading up the events in question, Dr Linton observed a marked deterioration in your mental health. This was in connection with the prospect of you and your wife being separated as a consequence of your wife possibly needing to go into respite care. You were prescribed antidepressant medication and sleeping pills. Dr Linton stated that "I consider that his extreme anxiety, and depression,...would affect his rational judgment".

13 Ms Davis observed you to be depressed abut your wife's situation. She noted that, despite support from family and careworkers, you were not coping but were resistant to placing your wife in respite care, even for a few weeks.

14 Ms Beeching, Care Manager, also observed you to be depressed. You reported to her that you were only sleeping 2 to 3 hours a night and were greatly anxious about being separated from your wife should she be placed in respite care. Because of your opposition to respite care for your wife, the possibility of a Guardianship Order being made with respect to your wife was raised with you in the days before your wife's death.

15 The essential situation was well summarised by the psychiatrist, Dr D Sullivan, who, at paragraph 34 of his report dated 17 October 2008 and tendered before me, stated:

"At the time of the alleged offence, Mr Rolfe was clearly suffering a depressive episode, characterised by hopelessness, anxiety and irritability. It is interesting that he now perceives that at the time, no-one was offering assistance, despite the health services documents clearly recording that maximal services were involved and that all involved were increasing their level of input while trying to respect Mr Rolfe. The circumstances are suggestive of an impulsive and unpremeditated act, with no indication of preparation. It is likely that at the time Mr Rolfe was feeling hopeless about the future, with irrational thoughts, such as concern with the quality of food which was sufficient to justify death. The effect of the depression at the time of the alleged offences was clearly in my opinion sufficient to impair his judgment, impair his ability to think clearly, and this condition was the critical element in the alleged offending"

16 On 4 December 2007 at the Traralgon Hospital you were formally interviewed by investigating police and upon legal advice you exercised your right not to answer questions. Police investigated the matter.

17 On 18 July 2008 you were charged with the murder of your wife. Two months later, on 16 September 2008 at a committal mention at the Latrobe Valley Magistrates' Court, Morwell you pleaded guilty to the manslaughter of your wife pursuant to suicide pact. The charge of murder was withdrawn. You had spent 14 days in custody consequent upon the charge of murder. You were then released on bail and remain on bail until today.

18 On 7 November 2008 before me a helpful and comprehensive plea on your behalf was made by your learned counsel, Mr Rochford. You have remained on bail awaiting sentence.

20 Suicide is a tragedy but is not a crime. Nor is attempted suicide a crime: s.6A Crimes Act 1958. Manslaughter by suicide pact is a tragedy and is also a crime. It is proscribed by s.6B Crimes Act 1958. The maximum penalty for that crime is ten years' imprisonment. Incitement to suicide resulting in suicide or attempted suicide and aiding and abetting suicide or attempted suicide also are crimes: s.6B(2) Crimes Act 1958. Those crimes carry a maximum penalty of five years' imprisonment.

21 "Suicide pact" is defined by S.6B(4) Crimes Act 1958 as

"an agreement between two or more persons having for its object the death of all of them whether or not each is to take his own life..."

"nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact".

22 Tendered before me were a report abovementioned of Dr D Sullivan, psychiatrist, of 17 November 2008; a report of Dr Anna Mogilevski, psychiatrist, of 30 October 2008; reports of Dr Joy Linton of the Leongatha Medical Group of 19 March 2008 and of 22 July 2008; and a report of Ms N Mercer, Care and Services Manager of Domain Aged Care (Services) Pty Ltd of Inverloch of 5 November 2008. The reports unequivocally establish that you were a loving and supportive husband, that your wife was in a deteriorating condition, and that you were under severe psychiatric, personal and emotional stress before and at the relevant time. Dr Linton, in her report of 19 March 2008, stated that in the months prior to your wife's death you had developed severe anxiety, insomnia and depression. You had promised your wife that she would not "end up in a home" and that prospect was something you "could not bear even to think about". Dr Anna Mogilevski, psychiatrist, of the Aged Persons Mental Health Service of Wonthaggi, three days after your wife's death, assessed you at the Wonthaggi Hospital and found you to be severely depressed and actively suicidal. You were required to be admitted as an involuntary patient to the Latrobe Regional Hospital Aged Mental Health Unit. You were discharged therefrom on 4 January 2008 but have required intensive involvement of that Unit since that time. Dr Mogilevski diagnosed you as having a major depressive disorder of severe nature. You remain under medication and your condition has since modified. Dr D Sullivan, psychiatrist, whose comprehensive report of 17 October 2008 has been cited above, examined you on 10 October 2008, and stated that at the time of your wife's death you were "clearly suffering a depressive episode" and that you were "feeling hopeless about the future". Dr Sullivan found that you have minor cognitive impairment consistent with age and without other features suggesting dementia. He considers that your current emotional state is improved and that your depression is predominantly in remission. He considers that you require ongoing pharmacological and psychological treatment for depression. You are receiving that care.

23 From all the evidence, and from my observation of you, it is established that you are a good and decent man who loved your wife and acted upon a motive of love.

24 You have committed no previous criminal offences and I have no doubt that you will not commit any other criminal offence.

25 As is often so, relevant sentencing considerations in this matter point in different directions. Normal sentencing considerations do not apply to you. Your actions do not warrant denunciation; you should not be punished; there is no need to deter you from future offences; and you do not require reformation. Two sentencing elements require consideration: general deterrence (the deterrence of others) and mercy.

27 The law rightly places at the forefront of its functions the protection of life. It rightly sets its face against the unlawful taking of life. The law should be vigilant and resolute in protecting life and in protecting the vulnerable and the dependent. Even where as here, the motives of the offender are pure. Not everyone is as selfless as you, Mr Rolfe. In a characteristically insightful passage, the Law Reform Commissioner, The Honourable T.W. Smith, formerly of this Court, in Report No.1 entitled "Law of Murder" (August 1974), in the context of consideration of a proposal that mercy killing should constitute manslaughter only, stated (at paragraph 65):

"In my view, however, it would be unwise to make such a change. To do so would be likely to increase the number of cases in which persons who, even under a system of legalized euthanasia, would not be given authority to kill, would take upon themselves the responsibility for doing so. Moreover the motive for killing a sufferer must often be predominantly to relieve the killer from a burden that he has come to find intolerable. And it would be undesirable to place temptation in the way of persons who carry such burdens, to kill for their own relief, and then to seek to evade full responsibility by asserting that their motive was to relieve suffering. The fact that a person yielding to such a temptation would commonly be the only person able to give an account of what occurred, and of the motives for it, would render it difficult for the truth to emerge".

Because the law rightly protects human life, a proper function of sentencing is to deter persons from the unlawful taking of life.

28 In considering sentence I have had regard to a body of material, including from earlier times the writings, illuminating always, of the late Professor Glanville Williams: "Euthanasia" (1972) 41 Medico-Legal Journal 14, "Euthanasia" (1970) 63 (7) Proceedings of the Royal Society of Medicine 663, and The Sanctity of Life and the Criminal Law (Chapter 8); and more currently the Senate Standing Committee on Legal and Constitutional Affairs Report (June 2008) Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008 and the debate and attended documents to the Medical Treatment (Physician Assisted Dying) Bill 2008 in Victoria. In England, I have had regard to the Report of the Select Committee on the Assisted Dying for the Terminally Ill Bill (Lords, April 2005) and the Law Commission Report No.304 Murder, Manslaughter and Infanticide Part 7 ("'Mercy' and consensual killings"). I have also had regard to and received guidance from relevant decisions in this Court, notably R v Marden [2000] VSC 558 (Vincent J.), R v Hood [2002] VSC 123 (Coldrey J.), R v Maxwell [2003] VSC 278 (Coldrey J.) and DPP v Nestorowycz [2008] VSC 385 (Harper J., handed down on 29 September 2008); and in the Supreme Court of New South Wales, R v Justins [2008] NSWSC 1194 (Howie J., handed down on 12 November 2008). Ten years ago I imposed sentence in this Court in DPP v Riordan (20 November 1998), an attempted murder count with attempted suicide by the accused. In that case the wife was the sufferer of advanced Alzheimer's disease for more than a decade and was in a nursing home. She had no control over her bodily functions, could not feed herself, was barely able to chew or swallow and continually cried out in a loud and pitiful way. The elderly couple had been devotedly married for 48 years. Pursuant to s.72 Sentencing Act 1991 I released the accused husband on his undertaking to be of good behaviour for three years with no other terms or conditions imposed.

29 The principle of general deterrence, relevant and important in this case, is modified by your then psychiatric condition of major depression, according to the well-known criteria enunciated in R v Tsiaras[2] and R v Verdins.[3]

30 Mercy has a part to play in sentencing. [4] Pre-eminently so in your case, Mr Rolfe.

31 The Sentencing Act 1991 by Part 3 Division 2 Subdivision 3 makes provision for the imposition of suspended sentences in whole or in part. Suspended sentences should be imposed sparingly, as is correctly provided by s.27(2B)(a) and (b) of that Act, because of legitimate public concern that suspended sentences are a theoretical entity.[5] However, in the appropriate case a suspended sentence is a valid and constructive disposition. This case is one.

32 Mr Rolfe, you pleaded guilty to this offence in the Magistrates' Court on 16 September 2008 and on 7 November 2008 in this Court. Pursuant to s.6AAA(1) Sentencing Act 1991 I state that by reason of your plea I have reduced the sentence to be imposed upon you by one-third.

33 Having considered the above matters and the matters specified in s.27(1A) and s.(2B)(a) and (b) Sentencing Act 1991 and having balanced the elements of general deterrence and of mercy, I consider that the proper sentence to be imposed is a wholly suspended sentence of imprisonment of two years. Accordingly, Mr Rolfe, for the manslaughter by suicide pact of your wife Janetta Rolfe I order and direct as follows. Pursuant to s.7(1)(c) Sentencing Act 1991 I record a conviction of the crime of manslaughter by suicide pact and pursuant to that section and s.27(1) of that Act I sentence you to be imprisoned for a period of two years and order that that sentence be immediately suspended in whole for the period of two years. That means, Mr Rolfe, that you are not to be physically imprisoned and that if you commit no further criminal offences in the next two years, your sentence will be concluded. You will not be required to return to Court at the end of the two-year period. If you commit any further criminal offence in that period, you will be required to come again before this Court for consideration whether this sentence should be varied to one of actual imprisonment. As I have said, Mr Rolfe, I have no doubt that you will not commit any further offence.

34 I declare, pursuant to s.18(4) Sentencing Act 1991 that you have served the period of 14 days of the sentence in pre-sentence detention and I so certify.

35 On 7 November 2008 I made an Order under s.78(1) Confiscation Act 1997 as to the items contained in the schedule thereto.

36 Mr Rolfe, when I leave the Bench you are free to leave court.

[2] [1996] VicRp 26; (1996) 1 V.R. 398.

[3] [2007] VSCA 102; (2007) 16 V.R. 269.

[4] See generally, Professor R.G. Fox " When justice sheds a tear: the place of mercy in sentencing" [1999] MonashULawRw 1; (1999) 25 Monash University Law Review 1.

[5] See generally, Professor A Freiberg and Ms V Moore "Suspended sentences and public confidence in the justice system" Paper at the Sentencing Conference Canberra, A.C.T., February 2008 National Judicial College of Australia.