R v Della [1999] VSC 540

Supreme Court of Victoria|1999-12-07|Before: Hampel J

SENTENCE - murder - son killed mother - psychotic illness and depression short of defence of mental impairment - sentencing considerations applicable - plea of guilty - no previous convictions - lower range of murder sentences.

This is a tragic case of a 29 year old man who killed his mother. Just the statement of that fact indicates that there must be a very real question about the mental stability of a person committing such an act.

In this case, Mr Della has a background from early childhood of problems. He was described as different and had learning difficulties and other deficits. This history of difficulties ultimately culminated in a breakdown which occurred in 1996 as a result of which he was hospitalized. From then on he has been under constant attention of psychiatrists and other people concerned with his mental well-being. In 1997 he was hospitalized and an order was made requiring him to live with his mother.

He has shown persistent suicidal tendencies on many occasions. He suffered from hallucinations and ultimately was diagnosed as having psychotic illness, almost certainly of the schizophrenia type. I have had the benefit of reading the extensive reports of the psychiatrists who have looked at him, and hearing evidence from Dr Bell and Dr Walton.

In the end, there is a unanimous view that whilst Mr Della does not come up to a level of mental impairment which would entitle him to a defence under the mental impairment provisions of the Crimes (Mental Impairment and Unfitness to Plead) Act, which adopts with some modifications the law relating to the defence of insanity, there is no doubt that he has over the years suffered from psychotic illness and depression. I think Dr Walton's description of the problem in this case as being a difficult one is apt. It is clear from his assessment of the matter that he has had difficulty in assessing precisely the degree of the operation of the psychotic illness from time to time, and more particularly at the precise time of the killing by the accused of his mother. That is the problem with the defence of mental impairment. Apart from that question, there is no doubt that this man is ill and has had the problems to which Mr Shwartz and the reports have referred.

One of the underlying factors in this case appears to have been the fact that Mr Della had a strong and often expressed belief that he had been sexually abused by his maternal grandfather and that he tried to communicate that to others, as well as to his father and to his mother. He received little understanding and belief, and that caused him frustration and unhappiness. In fact, on the day in question he saw his father and tried to discuss the problems, but received no satisfaction.

Ultimately, shortly before he killed his mother in the bedroom, doing that manually while she was sleeping and continuing when she woke up, he had been watching a television show and he describes some strange reactions as a result of that just before he went into the house. He describes feelings of being trapped, needing to escape. His failed attempts to speak to his mother about the sexual abuse and perhaps to others gave him concern and maybe had some connection with his reaction and his act of killing her.

Of course, the question of his condition at this stage is one of the degree of responsibility rather than of the availability of the defence of mental impairment. It seems to be common ground, and indeed I think correctly on the material, that he is probably at the lower level of culpability short of having a defence available to him because of his persistent diagnosed psychotic condition and all the other stressors that appeared to have operated upon him. I think that, and the pressures and tensions which were mounting between him and his mother, his having to reside with his mother because of the order and all of the other factors, his frustration because of the lack of understanding of what he perceived as a real problem, all contributed to this tragic killing.

I have, of course, read the victim impact statements coming as they do from his siblings and his father, and they amply relate the tragedy that has been caused within this family.

The family reaction, I perceive from the evidence that I heard this morning, is mixed. I was particularly impressed by the insight and understanding of his eldest sister, Mrs Wortel, who described some of the family background and his problems and who remains supportive of him, although there are obvious tensions and differences within the family.

I think in sentencing in a case of this kind, one must have regard to the plea of guilty to the crime of murder. That crime can be dealt with by a variety of sentences and, as I have indicated, my view is that it should be at the lower end of murder sentences. The primary factor is the psychotic condition and other factors which operated on the mind of Mr Della at the time short of a defence of complete lack of responsibility, but certainly diminishing it to a very substantial degree. Secondly, his plea of guilty in these circumstances, particularly when, at least on one view, it may have been arguable that he had a defence, although it seems that the doctors who have dealt with him finally all came to the conclusion that he did not.

There is also, apart from his plea of guilty in these circumstances and his condition, the fact that he has no previous convictions, he has no history of violence and that he is trying to cope with his situation as best he can and needs all the assistance that can be obtained. Fortunately, nowadays there is the capacity to move a prisoner sentenced in the normal way to a permanent care situation and, as has been indicated, although he is now not considered to be a suitable subject for a security hospital order, nevertheless, if his condition deteriorates, that can be done. He does require constant treatment and medication at this stage, which he is receiving, and no doubt the authorities will keep a close eye on his progress with a view to assisting him as much as possible. I think in the light of those facts, no argument was quite rightly put by the Crown, I think, that there should be anything other than a sentence in the lower range of murder sentences.

However, a sentence must be imposed, given the plea of guilty and the absence of a defence of mental impairment, but it must reflect the considerations I have already mentioned.

In all those circumstances, in my view the appropriate sentence is one of 12 years' imprisonment. I order that eight years be served before the prisoner is eligible for parole.

I declare that 333 days have already been served pursuant to this sentence and that that declaration be entered in the records of the court.

I think this is an appropriate case to grant the order sought by the Crown for an intimate body sample pursuant to s.464ZF of the Act, and I propose to make such an order.

Mr Della, I should tell you that I have made an order that an intimate body sample be taken from you, Should you not consent to that being done, the police may use reasonable force to obtain such a sample. It is a simple blood sample that is to be taken from you.

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