HIS HONOUR: Brian Kenneth Crickitt (the offender) was arraigned before me on 14 October 2016 and pleaded not guilty to the following count in the indictment that:
"On or about 1 January 2010, at Woodbine in the State of New South Wales, did murder Christine Crickitt.
The offender stood trial before me without a jury. The trial commenced on 26 October 2016 and concluded on 10 November 2016. On 8 December 2016 I returned a verdict of guilty on the count of murder: R v Crickitt [2016] NSWSC 1738. The offender is now to be sentenced for that offence.
The crime of murder is one that carries a maximum penalty of imprisonment for life (s 19A Crimes Act 1900 (NSW)) and a standard non-parole period of 20 years. These are statutory guideposts that I must bear in mind when assessing the appropriate sentence to be imposed in the light of all of the relevant facts and circumstances.
Factual background
A detailed analysis of the evidence in the circumstantial Crown case can be found in my reasons for verdict (the principal judgment). My task now is to set out the facts upon which the offender is to be sentenced.
At the time of the murder the offender had been in a relationship with his wife (the deceased) for 21 years and married for about 19 years. The deceased and the offender owned some property in common and were both involved in family companies in which they held investments. The deceased had a life insurance policy over her life in an amount of more than half a million dollars.
For some time before her death, the offender's relationship with the deceased had been deteriorating and the offender was deeply unhappy in his marriage. During this time the deceased believed that the offender was having an affair and wanted to leave her, but the offender insisted to the deceased that he was committed to her. The offender was in fact involved in a relationship with Ms Linda Livermore, which had become sexual some weeks before the deceased's death. The offender was planning his future life with Ms Linda Livermore and wanted them to be married.
30 December 2009
At 1.30am on 30 December 2009, the offender conducted a Google search on his home computer for insulin overdose. He went to a website known as "diabetes.emedtv.com", which described the symptoms of insulin overdose, and stated "an overdose with a short or rapid acting insulin is typically more dangerous than an overdose with an intermediate or long acting insulin" (Exhibit BL).
At 8.30pm that night, the offender again did a search of the same website and also brought up a webpage of an article entitled "Intentional overdose with insulin: prognostic factors and toxicokinetic/toxicodynamic profiles", which was an academic analysis of 25 patients who overdosed with insulin (Exhibits AT and BJ). The article described the range of levels of insulin and the range of times after injection, before treatment was commenced, in cases where there was an unfavourable outcome. The article stated "a delay between insulin injection and first medical treatment in excess of six hours … appeared to be significant independent predictors of an unfavourable outcome of insulin poisoning."
The internet searches were conducted by the offender in a way intended to avoid their discovery or the history was subsequently deleted. In either scenario, I am satisfied beyond reasonable doubt that the offender took measures to attempt to hide the computer searches he had conducted.
The evidence established that at least by the early morning of 30 December 2009, about 48 hours before the deceased's death, the offender had formed the intention to murder her, had decided upon a method by which he would do so, and was researching the type and amount of insulin, and the amount of time that would be required to carry out his intention successfully.
The following day, the offender embarked on the next part of the process of implementing his intention, namely, obtaining the rapid acting insulin which he believed was the more effective insulin to use to ensure that the deceased would die.
31 December 2009
On New Year's Eve, the offender worked at the Campbelltown Medical and Dental Centre (CMDC). At 3.12pm, he saw Ms Kristina Mitchell, a patient who was a diabetic. The offender prescribed Ms Mitchell a slow acting variety of insulin called Lantus SoloSTAR. Ms Mitchell took that script and filled it at a chemist in Campbelltown. She did not return to the CMDC that day.
At 5.01pm, the offender added a prescription in Ms Mitchell's patient file on the CMDC computer system for the fast acting insulin known as NovoRapid FlexPen. The offender printed this prescription and signed it as doctor. I am satisfied beyond reasonable doubt that the offender printed the NovoRapid prescription for Ms Mitchell with the intention of having it filled so that he could obtain a large amount of fast acting insulin with which to inject the deceased with a fatal dose in a way that he thought would not be detected.
After printing the prescription, the offender deactivated the prescription from Ms Mitchell's records, typing the word "wrong" as the reason for the deactivation. A minute later, the offender reactivated the prescription, and then immediately deactivated it again, changing the reason from "wrong" to "not needed." The offender deactivated the prescription so as to hide the fact that he had issued the prescription, because he knew he was going to use that insulin to murder the deceased later that night.
Between 6pm and 7pm, the offender presented the prescription in the name of Ms Mitchell at the CMDC Pharmacy, which was situated within the CMDC practice. He signed the prescription in the patient/agent section and was provided with the NovoRapid fast acting insulin. The offender took the NovoRapid insulin home with him that night with the intention of using it to murder the deceased.
At some stage on the night of 31 December 2009 or morning of 1 January 2010, the offender injected his wife in the left buttock with a lethal dose of insulin, with the intention of murdering her. I have found that it was more likely that the offender injected the deceased with insulin through subterfuge by gaining her acquiescence to him administering an injection.
The offender remained at home until the deceased was either dead or in a comatose or semi-comatose state, so that without medical intervention she would inevitably die. It was only then that he left his home at about 2am to spend the rest of the night with Ms Livermore.
The injection of rapid acting insulin into the body causes a dramatic drop in the blood glucose level which causes sweating, dizziness, shakiness, blurry vision, irritability, loss of coordination, difficulty speaking, and confusion. After some time, it causes seizures, loss of consciousness, coma and finally death. That process can take some hours. According to Professor Vincent Marks, at least six hours, although it could be less (Exhibits BD and BF).
The deceased was found lying on the floor next to her bed with her head wedged between the bed and the bedside table. The position of the deceased's body was consistent with her attempting to get up from the bed, but being incapacitated due to hypoglycaemia, collapsing and falling between the bed and bedside table.
The guilt of the offender
The basis upon which it was proved beyond reasonable doubt that the offender was the person who administered the injection of insulin can be found within the principal judgment.
There were many strands in the cable of the circumstantial Crown case. A major problem for the prosecution was the inability of the scientific evidence to establish what had caused the deceased's death and in particular, that it was an overdose of insulin which had done so.
Once I was satisfied that Ms Kristina Mitchell had not received the prescription for rapid acting insulin, and had not presented that prescription, and that the presentation of that prescription was not necessary in order to fulfil her insulin requirements, the only person who could have taken those actions was the offender. Once that finding was made beyond reasonable doubt, the other pieces of evidence in the Crown case fell into place.
The seriousness of the offending
The Crown submitted that the objective seriousness of the offending was "significantly above the midrange" for offences of this kind. The offender accepted that the offending was above midrange but not at the level argued for by the Crown. Both agreed however, that the requirements of s 61(1) Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) had not been met in that the level of culpability of the offence was not so extreme as to merit the maximum sentence of life imprisonment. I agree with that conclusion. Despite the undoubted seriousness of the offending, it was not such that the community interest in retribution, punishment, protection and deterrence could only be met through the imposition of such a sentence.
In view of the findings in the principal judgment, it was agreed by the parties that the offence was committed with an intention to kill. This factor rendered the offence of greater seriousness than one committed with an intention to inflict grievous bodily harm (R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 at [34]). That finding is of importance when the issue of motive is considered.
Motive
In the principal judgment I found that the offender's primary motive for the offence was his increasing dislike for the deceased and his infatuation and desire to start a new life with Ms Livermore. While I have found that financial gain was part of the offender's motivation, it was at best very much a secondary motive and would have achieved at most a collateral benefit for him. It is for that reason that I do not regard that aspect of the offender's motivation as adding to his culpability in a significant way.
Premeditation
As the offender has accepted, the offence was clearly premeditated. The extent to which that premeditation should be taken into account as increasing the objective seriousness of the offence is a matter of degree. The earliest indication in the evidence that the offender had formed an intention to commit the offence was him accessing the website concerning insulin overdoses at 1.31am on 30 December 2009. Accordingly, the premeditation involved in the offence extended for a period of approximately 48 hours.
Planning
The offender accepted that the offence involved planning. As with premeditation, the extent to which planning should be taken into account when assessing the objective seriousness of the offence, is a matter of degree. The offender's conduct in preparing for the offence comprised the viewing of the websites, the generation of the NovoRapid prescription, the deactivation of the prescription and the filling of the prescription at the pharmacy attached to the CMDC at some time between 6 and 7pm on 31 December 2009. In that regard, I accept the concession by the Crown that planning of this kind is not such as would come within s 21A(2)(n) of the Sentencing Act.
In Fahs v Regina [2007] NSWCCA 26 at [21] Howie J (with whom Simpson and Buddin JJ agreed) said that s 21A(2)(n) conveyed "more than simply that the offence was planned". In Williams v R [2010] NSWCCA 15 the Court (McClellan CJ at CL; Simpson and Hidden JJ) stated at [20] that:
"… It is only when the particular offence is part of a more extensive criminal undertaking that the subsection is engaged. The fact that an offence was planned does not of itself bring it within the subsection."
This does not end the extent to which "planning" can be taken into account. Under the common law the degree of premeditation or planning has long been recognised as a factor to be taken into account when assessing the seriousness of an offence (R v Morabito (1992) 62 A Crim R 82 per Wood J (Hunt CJ at CL and Sharpe J agreeing) at 86). It permits a court to treat the conduct as a more serious example of the offence charged than would otherwise be the case.
Taking those matters into account, I find that the level of planning was such as to increase the seriousness of the offending. Not only did the offender research details concerning the type and amount of insulin which could be used but as a doctor at the CMDC, he had an opportunity to gain access to the necessary quantity of insulin and also to take steps to avoid detection by altering the computer records at the medical centre.
Breach of trust
An important aspect of the offending is that it involved a very serious breach of trust. Not only was the deceased the offender's wife and as such entitled to trust the offender as her partner and husband of many years, but he had been her treating doctor for some years. As her treating doctor, he prescribed for her various medications covering a range of conditions. The deceased undoubtedly trusted the offender's judgment and decisions in relation to the treatment of those conditions and her health generally.
It was the offender's relationship with the deceased on those levels which enabled him to abuse her trust in a most serious manner when he used a subterfuge to gain her acquiescence to inject her in the buttock with a dose of insulin which he knew would ultimately bring about her death. The fact that he was the deceased's treating doctor enabled him to use the facilities of the CMDC to obtain the insulin to administer to her.
As the offender acknowledged, this aspect of the offence is to be taken into account in assessing its objective seriousness. It significantly adds to the objective seriousness. In addition to the matters already referred to, regard needs to be had to the harm done to the community through damage to trust in the medical profession. It is also a factor which impacts negatively on the weight which should be given to the fact of the offender's good character when considering his subjective case. In any event, the provisions of s 21A(2)(k) of the Sentencing Act are engaged in that the offender clearly abused his position of trust in relation to the deceased.
Other issues relating to seriousness of offending
The Crown submitted that the provisions of s 21A(2)(cb) of the Sentencing Act applied in that the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or other intoxicating substance. I do not agree. As I read that provision, it applies to situations where the administration of the drug or other substance is an aid to the occurrence of the primary offence. Here, the primary offence was the administration of the substance. To take s 21A(2)(cb) into account in the way submitted by the Crown would be to engage in a double counting exercise.
The Crown submitted that s 21A(2)(eb) of the Sentencing Act applied in that the offence was committed in the home of the victim. On that issue, the Crown relied upon Jonson v R [2016] NSWCCA 286 where the Court of Criminal Appeal determined that the legislature intended by the enactment of section 21A(2)(eb) to recognise that a home is a place which should be safe and secure for persons who reside at such a place. As Bathurst CJ said at [49]:
"There is no reason that a breach of that security would constitute an aggravating factor in the case of an intruder but not in the case of a person lawfully on the premises".
While I accept that the facts of this case give rise to the application of the provision, I do not regard it as significantly adding to the objective seriousness of the offending in that its effect is substantially subsumed by the matters I have already taken into account when considering the significant breach of trust involved in the offence.
The Crown referred to a number of matters which occurred after the offending and which were found to be indicative of a consciousness of guilt. These included lies to the police at the scene and in interviews, reactivation of the NovoRapid prescription on the CMDC software on 24 November 2011 following the issue of a subpoena and the offender's lies to his wife in October 2014 alleging that police fabricated or tampered with evidence. The Crown also referred to what it described as the offender's callous conduct in the days immediately following the deceased's death such as openly displaying his affection for Ms Livermore. Implicit in the submission, although not expressly stated, was that this conduct should be taken into account as increasing the objective seriousness of the offending.
Conclusion
I do not agree. These matters were not directly related to the commission of the offence but to its investigation. They have no bearing on the objective seriousness of the offending itself. As was accepted by the offender, they may well be relevant when considering the strength of his subjective case in that they clearly show a lack of contrition and remorse. I have not taken those matters into account when considering the objective seriousness of the offence.
Taking all relevant matters into account, I have concluded that the offence is above midrange for offences of this kind and is well above that midrange. Although I have taken into account all of the matters which I have identified as relevant to the objective seriousness of the offending, the most serious consideration is the egregious breach of trust which the offence involved. The moral culpability for this offence is high. The deceased was left to die a painful death alone by someone whom she trusted to care for her. The offender's motivation to murder his wife was essentially based on self interest and what he perceived would make his life better in the future.
Victim impact statements
Victim impact statements were provided by family members of the deceased, Stuart Riley, Samuel Wiggins and Tracey Wiggins. They are very moving documents to read and have been written in a brave and dignified manner. The statements make it clear that the death of the deceased has caused significant harm and distress to her immediate family. Pursuant to s 28(4) of the Sentencing Act the Crown applied for these statements to be taken into account in sentencing the offender. I consider it appropriate to do so on the basis that the harmful impact upon the immediate family is an aspect of harm done to the community.
Subjective circumstances of the offender
The offender did not give evidence in the trial, nor did he give evidence in the sentence proceedings. Tendered on his behalf was a report of Dr Olav Nielssen, psychiatrist, dated 28 March 2017. Dr Nielssen took a history and made an assessment of the offender by way of an audio-visual interview.
The offender was the middle of three sons whose father died in 1996 and whose mother is now 93 years of age. He first married in 1976 and retains the support of his first wife and their daughter. He was dux of his high school and obtained a high score in the Higher School Certificate before completing a degree in medicine at Sydney University. The offender was thereafter in medical practice, either as an employed doctor or in one of his own practices.
The offender has been a long standing and active churchgoer, serving on the parish council of his church, participating in church events and charities and contributing to bible study groups. He is well regarded among fellow parishioners for his generosity and his support and care of others, notwithstanding his conviction for the offence. This was borne out by a substantial number of very favourably expressed testimonials which were tendered on his behalf.
The offender was 56 at the time of the offence and is presently aged 63 years. He has no record of previous convictions and has not further offended in the period of more than seven years since the offence was committed.
The offender has a longstanding history of depressive illness. He first suffered an episode of depression in the early 1980's. He attempted suicide in 1998, was considered clinically depressed at the time and was hospitalised. After his hospitalisation he received treatment from a psychiatrist for a period of about eight months.
There was evidence in the trial that the offender was depressed in the period during which the offence was committed. During the search of his home, he admitted to police that he had prescribed himself an anti-depressant medication which police found in a bag in his car. In an interview with police, he stated that he had been prescribing the medication to himself for "the last few months". Shortly before the offence, the deceased had expressed the opinion to a friend that the offender was depressed. In an interview with police on the day of the offence, the offender said that he had been depressed "for a long time". Based on his viewing of the two ERISPs made by the offender on the day of the offence, Dr Nielssen opined that the offender appeared "quite depressed".
I am satisfied from the evidence and medical records of treating doctors, which were placed before the Court, that the offender has continued to suffer from depressive episodes both before and since the time of the offence. A diagnosis of melancholic depression was made in 2012 and confirmed in 2013. The offender has been treated with anti-depressant medication on an ongoing basis over a period of more than six years since the offence. He has continued to be treated with anti-depressant medication following his reception into custody at the conclusion of the trial. The diagnosis of a depressive illness was confirmed shortly before the sentence proceedings.
The offender suffers from a number of physical health problems including high blood pressure, asthma, gastro-oesophageal reflux, an oesophageal stricture, arthritis, a prolapsed disc and apparent cerebral changes against a background of contracting viral encephalitis. The offender told Dr Nielssen that his placement in protective custody had resulted in reduced access to services, including routine medical care for his physical health conditions.
The offender was placed in protective custody because of fears for his safety arising from the high degree of media interest in his case. The offender told Dr Nielssen that he remained fearful for his safety, notwithstanding his placement in protective custody, as a consequence of his former occupation.
It was acknowledged on behalf of the offender that there was no evidence of remorse because he was convicted after a trial and has maintained his innocence. As was indicated earlier in this judgment whereas the actions of the offender after the offence are not relevant to the objective seriousness of the offence, they are relevant to issues of remorse and rehabilitation. I find that the offender's actions in openly displaying his affection for Ms Livermore in the immediate aftermath of the deceased's death were quite inconsistent with any feelings of remorse and that his subsequent conduct is consistent with an absence of remorse and contrition.
It was submitted on behalf of the offender that given his age when he is likely to be released, and the rather unusual circumstances leading up to the offence, there is little chance of him re-offending and that his prospects of rehabilitation are good. I accept that there is little chance of the offender re-offending. In relation to rehabilitation, the position is less clear. An important part of rehabilitation is the recognition of the seriousness of the offending and an acceptance of responsibility for it. The offender has not met that criteria. In those circumstances, I regard his prospects of rehabilitation as guarded.
It was submitted on behalf of the offender that his age was a relevant consideration on sentence and in particular, the prospect that a heavy sentence might extend for all of, or most of, his life expectancy. I accept that the offender's age and life expectancy are relevant factors in assessing sentence, but they have to be balanced against the objective seriousness of the offence and the principle of proportionality which require that the sentence imposed is appropriate to the offence.
I accept that the offender has been depressed for many years and continues to be depressed. I do not accept, however, that his depression affected his thinking and decision making at the time of the offence. That opinion was expressed in speculative terms by Dr Nielssen based on his diagnosis of the offender's mental condition. Dr Nielssen did not identify the evidence which led to that conclusion. In the absence of evidence from the offender as to what was his state of mind leading up to and at the time of the offence, I am not prepared to find on the balance of probabilities that his condition of depression made any contribution to the commission of the offence.
Of course the offender's depressive condition is relevant to the determination of his sentence in other ways. It will certainly make his time in prison more onerous and I have taken it into account as a mitigating consideration on that basis. I am not persuaded, however, that it should reduce the weight to be given to general deterrence in any significant way. The circumstances of this offending were such that a significant element of denunciation is required to be included in the sentence.
I accept that as well as his depressive condition, the offender suffers from a number of serious physical conditions. I accept that these will also contribute to him experiencing additional hardship while in custody. I have taken those matters into account by way of mitigation of sentence.
I accept that the offender's conditions of custody at the present time are more onerous than those of the general prison population. This would appear to be primarily because of his previous occupation. There is, however, no evidence before me as to how long the offender is likely to experience those more onerous conditions while in custody. Given his age and the skills which he undoubtedly possesses, it is likely that his classification in the prison system will be such that his custodial conditions will significantly improve. This is particularly so when one has regard to the length of the sentence which the offender will serve, even taking into account the mitigating factors to which I have referred.
A further consideration which favours the offender is that admissions were made at trial, pursuant to s 184 of the Evidence Act, in respect of a wide range of matters, including the procedures and practices at the CMDC, the issuing and filling of the 31 December 2009 NovoRapid prescription, his prescription of medications to the deceased, his financial circumstances and those of the deceased, the fingerprints found on the 31 December 2009 NovoRapid prescription and the results of the surveillance which was carried out. The offender's co-operation in these matters undoubtedly shortened the trial, had a real utilitarian value and assisted in the facilitation of the administration of justice. I have taken those matters into account as warranting a reduction in the sentence which would otherwise have been imposed.
In taking those matters into account in favour of the offender, I have also taken into account that any lesser penalty imposed as a result of the facilitation of the administration of justice must not be unreasonably disproportionate to the nature and circumstance of the offence (s 22A(2) of the Sentencing Act).
Special circumstances
The submissions on behalf of the offender accepted that the parole period of the sentence would inevitably be such as to allow an adequate period of supervision on release. Nevertheless, it was submitted that factors which might combine to warrant a finding of special circumstances were the hardship the offender was likely to experience in prison because of his age, health and placement in protective custody. As indicated, I have already taken those matters into account by way of mitigation. To have further regard to them on the issue of special circumstances would be to double count those matters. Accordingly, I am not prepared to find special circumstances.
It was brought to the attention of the Court that the offender was remanded in custody for six days, following his arrest on 3 December 2014, until 8 December 2014 when he was released to bail. I propose to take that period into account when fixing the commencement date of the sentence.
Conclusion and sentence
Although I have taken into account the offender's subjective case and the matters in mitigation to which I have referred, the objective seriousness of the offending also has to be taken into account. There is a need for a strong element of general deterrence in sentencing in this case. The abuse of trust which characterised this offence is not to be tolerated in our community. Medical professionals and doctors, such as the offender, who misuse the trust placed in them by those to whom they provide treatment and care by committing serious criminal acts against them, should know that they will be held accountable and will be met with heavy punishment. I am also mindful of the two important statutory guideposts provided by the maximum penalty and standard non-parole period. These are of particular importance where a matter has proceeded to verdict.
Recognition of the harm done to the victim of the crime and to the community is a purpose in sentencing. In this case, the former is obvious but the latter has a number of elements. It includes the tendency of the offender's crime to damage the faith and trust which the community places in its medical practitioners to care for those placed in their charge.
I am required to warn the offender, which I now do, of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and the fact that that Act applies to the offence of murder of which he has been convicted and for which he is about to be sentenced. At some future point in time, an application may be made that notwithstanding the completion of his sentence, the offender continue to be detained or else be subject to an extended supervision order impacting upon his liberty.
Sentence
For the murder of Christine Crickitt, the offender is sentenced to imprisonment for 27 years with a non-parole period of 20 years and 3 months, commencing 2 December 2016 and expiring 1 March 2037 and a balance of term of 6 years and 9 months expiring 1 December 2043.
The offender will not be eligible for release on parole at any date earlier than 1 March 2037.
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Decision last updated: 05 May 2017