R v Haines

Supreme Court of NSW|2016-12-07|Before: Garling J, Hunt CJ

REMARKS ON SENTENCE

On 10 May 2014, the offender, Megan Haines, while employed as a registered nurse at the St Andrews Aged Care facility in Ballina ("St Andrews"), murdered Isabella Spencer and Marie Darragh, who were residents there.
The offender did so by injecting each of them with insulin in circumstances where neither Ms Spencer nor Ms Darragh was insulin dependent. As a result of the insulin injection, both Ms Spencer and Ms Darragh fell into a hypoglycaemic coma, suffered irreversible brain damage, and died.

Judicial Task on Sentencing

It is important before discussing the facts of these offences to remind myself and the community generally of the judicial task on sentencing. That is to say, how a judge, in each individual case, must go about the task of fixing a sentence which accords with the relevant legislation, the principles of the common law, and the factual circumstances of the offending.
In our system of criminal justice as it presently stands, I must exercise a discretion as to what sentence should be imposed upon the offender by applying well established principles of law to the process of fact finding: R v MacDonell (NSWCCA, 8 December 1995, unreported) per Hunt CJ at CL at [1]-[2].
These principles of law were conveniently summarised by the Court of Criminal Appeal in R v Isaacs (1997) 41 NSWLR 374 at 377-378: "1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rests with the judge, and not with the jury…; 2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings …; 3. The primary constraint upon the power and duty of decision-making … is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. This may produce the result that, in a particular case, the view of the facts which the judge is obliged to take is different from the view which the judge would have taken if unconstrained by the verdict …; 4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt …; 5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender…. However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender …". See also Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1.
It is no part of the sentencing process, or my function, for me to attempt to discern the basis upon which the jury reached their verdict. Rather, in sentencing the offender, I am obliged to engage in a process of fact-finding consistent with the jury's verdict, and it is upon the facts as I find them that I am to determine an appropriate sentence.
I will apply these principles in the course of determining an appropriate sentence for the offender.

The Statutory Regime

The Parliament of New South Wales has expressed in s 3A of the Crimes (Sentencing Procedure) Act the purposes for which a court may impose a sentence on an offender. Those purposes are: to ensure adequate punishment of and offender; to prevent crime by deterring others generally, and the offender specifically, from committing similar offences; to protect the community; to promote the offender's rehabilitation; to make the offender accountable for their actions; to recognise the harm done to the victims of the crime and the community; and to denounce publicly the conduct of the offender.
These purposes obviously overlap and are often in tension: Muldrock v The Queen at [20]. The purposes of ensuring adequate punishment of the offender and promoting the offender's rehabilitation, for example, are not always compatible. None of the purposes can be considered in isolation.
Section 21A of the Crimes (Sentencing Procedure) Act also requires the Court to take into account, where relevant, a number of aggravating and mitigating factors in determining an appropriate sentence. The legislation does not require the Court to increase or decrease a sentence because of the presence or absence of these factors: s 21A(5).

Common Law Principles

Over time, the courts have developed legal principles to guide the exercise of the sentencing discretion by judges. These common law principles are to be found in decided cases.
In summary, the common law principles include: 1. Proportionality: the sentence should be proportionate to the gravity of the offences: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472 per Mason CJ, Brennan, Dawson and Toohey JJ; 2. Parity: any difference between sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance and the appearance that justice has not been done: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 617 per Dawson J, Gibbs CJ and Wilson J agreeing; 3. Totality: when a person stands for sentence for a number of offences, the Court must look at the totality of the criminal behaviour and determine what the appropriate sentence is for all of the offences; Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 per Wilson, Deane, Dawson, Toohey and Gaudron JJ; and 4. Avoidance of double punishment: a person should not be punished twice for the same conduct: Pearce v The Queen [1998] HCA 57 (1998) 194 CLR 610.
These common law principles have continuing relevance because s 21A(1) of the Crimes (Sentencing Procedure) Act preserves the entire body of judicially developed sentencing principles: Muldrock at [18]. As well, factors established by the common law as being relevant to sentence, such as whether incarceration may be particularly burdensome, are also to be taken into account: Muldrock at [19].
What the sentencing task requires of a judge is that they have regard to the relevant legislation, including the purposes of sentencing, the statutory guideposts of the maximum penalty and the standard non-parole period, and the aggravating and mitigating factors, as well as the principles of the common law. Against that legal framework, the sentencing judge has to identify, and discuss the significance of, all the relevant factual circumstances of the offending and the offender. The sentencing judge is then in a position to undertake an 'instinctive synthesis', whereby the judge "makes a value judgment as to what is the appropriate sentence given all the factors of the case": Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51]; Muldrock at [26]. As the 'instinctive synthesis' approach to sentencing embodies a value judgment, there is no such thing as a single correct sentence.
I will bear in mind the legislation by which I am bound and the common law principles developed by the courts when proceeding on the task of sentencing the offender.

The Facts

In its written submissions on sentence, the Crown identified a number of facts consistent with the jury's verdict which the Court should find for the purpose of sentencing the offender. The defence, in its written submissions, largely agreed with those facts. What follows is an account of those agreed facts and other facts of which I am satisfied beyond reasonable doubt.
Ms Spencer was born in November 1936 and was 77 years old at the time of her death. In December 2013 she suffered a stroke, leaving her paralysed on the left-hand side. She became a resident of St Andrews at that time, and resided in Room 4 in the Dianella 1 ward. Although she was largely bed‑bound and required assistance from the staff to move around, she was cognitively intact. She was not insulin dependent.
Ms Darragh was born in September 1931 and was 82 years old at the time of her death. She moved into St Andrews in February 2011, and resided in Room 10 of the Dianella 1 ward. While she had a number of complex health issues, she was cognitively intact. She was not insulin dependent.
The offender was born in South Africa in September 1967 and was 46 years old at the time of the offences. She is now 49 years old. She trained and practised as a registered nurse in South Africa before coming to Australia in December 2000. In 2001, she became a registered nurse in Victoria.
In December 2005, complaints were made about the offender while she was employed as a registered nurse at a hospital in Victoria. Those complaints were investigated and, in May 2007, the offender was found guilty of professional misconduct and reprimanded.
In July 2007 and early 2008, further complaints were made about the offender in Victoria. Her nursing registration was suspended pending an investigation. The investigation was not completed until 6 December 2011, when the offender was again found guilty of professional misconduct, reprimanded and ordered to supply satisfactory employer reports every 3 months to the relevant regulatory authority. During that investigation, the offender did not seek renewal of her registration, which had lapsed, and she therefore became unregistered.
On 10 February 2012, the offender successfully applied for re-registration. In April 2013, the reporting condition on her nursing registration was amended such that she was to provide satisfactory employer reports every 6 months.
On 13 March 2014, while still subject to the reporting condition, the offender gained employment as a registered nurse at St Andrews. After an initial period of supervised shifts, the offender was rostered on to work the night shifts at St Andrews, which commenced at about 10.15pm and concluded at about 6.30am.
During the night shift, St Andrews was staffed by five people. In the hostel area, there were two care service employees on duty. In the Boronia ward, which accommodated high care residents suffering from dementia, there was one care service employee on duty. In the Dianella ward, which catered for residents with high care needs, there was one care service employee on duty. In charge of the night shift was a registered nurse, who was for most of the night shift stationed in the Dianella ward. However, the registered nurse was responsible for all of the residents in the complex. Care service employees were not authorised to administer, nor were they responsible for, the administration of medication in either the Boronia or Dianella wards. In the hostel area they could administer some routine prescription medications.
The complex of St Andrews was a secure environment. After 5pm, the complex could not be accessed unless either a swipe card was used or the registered nurse on duty permitted access electronically having viewed CCTV footage of the person seeking to gain access. St Andrews also engaged a security company to conduct random checks in and around the complex during the night. Finally, each staff member was given a personalised swipe card which gave them access to various sections of the complex depending on their role.
During the night shift commencing in the late evening on 9 May 2014, the offender was the only staff member who had a swipe card which provided access to the medication rooms in the Dianella and Boronia wards. All medication to be administered to the residents of those wards was kept in those medication rooms. There was a medication room in the hostel area, which could be accessed upon the entry of a 4 digit pin code. Care service employees knew that code and were able to access that medication room. However, at the time of the murders only one resident in the hostel area required insulin, which was administered through a pen delivery system. An audit conducted on 12 May 2014, two days after the deaths were discovered, accounted for all of the insulin prescribed for that resident. I am satisfied that the drugs kept in the medication room in the hostel area were not used by the offender.
At the time of the deaths, there were two residents in the Dianella ward who required insulin. One of those residents used a long-acting insulin which was, I am satisfied, fully accounted for in the insulin audit undertaken after the deaths were discovered. The other resident used insulin called "Mixtard 30/70". This is a mixed insulin comprising 30% short acting insulin and 70% intermediate acting insulin. The insulin audit undertaken after the deaths were discovered was unable to establish whether any of the Mixtard 30/70 insulin prescribed for that resident had been taken or had gone missing. In large part, this was because the amount of insulin brought into the premises by, or for, the resident was not recorded. However, after the deaths were discovered, two empty vials of Mixtard 30/70 insulin were found in a sharps container which was located in the hostel area. The offender visited the hostel area at about 3:15am during her night shift to administer medication to a resident.
At about 11.15pm on the night shift in question, the Director of Care, Ms Wendy Turner, came to St Andrews for the purpose of meeting the offender. During that meeting, Ms Turner informed the offender that she had received complaints about the offender from three residents at St Andrews. She identified two of the residents, Ms Darragh and Ms Patterson, by name. She handed to the offender a letter inviting her to attend a meeting on the following Tuesday, 13 May 2014, to discuss the complaints. She attached file notes setting out the details of the complaints from Ms Darragh and Ms Patterson. The letter informed the offender that the behaviour disclosed in the complaints breached the terms of her employment and her professional practice standards, and could result in disciplinary action. Ms Turner also reminded the offender of the reporting condition on her nursing registration, and gave the offender a specific direction that she was not to approach Ms Darragh or Ms Patterson to discuss the complaints, or enter either of their rooms to provide treatment for them unless in the company of another employee.
The complaint from Ms Darragh was, in substance, that she had requested some medication by way of a cream to treat an itchy condition from which she suffered, and that the offender had refused to provide her with that medication and had made comments to her which were both rude and inappropriate.
The complaint from Ms Patterson was that whilst she was being assisted to her bed after using the bathroom facilities, the offender lifted her in a manner which caused Ms Patterson to injure her ankle. The file note of the complaint by Ms Turner recorded that Ms Patterson had "nil signs of injury". Ms Patterson also complained that the offender had been cross with her and rude to her.
The third complaint Ms Turner received was from Ms Spencer. However, I am satisfied that Ms Turner did not inform the offender on the night of 9 May 2014 that the third complaint was from Ms Spencer. The substance and effect of Ms Spencer's complaint was that she had requested assistance from the offender to go to the toilet, and the offender had refused to provide that assistance to her. The terms in which the offender was said to have spoken to Ms Spencer were, on any view, unhelpful and rude.
Although the offender was not told that Ms Spencer was the third complainant, I am satisfied beyond reasonable doubt that she inferred that the third complainant was Ms Spencer. It would not have been difficult for her so to do. After all, refusing to assist an elderly resident to the toilet constitutes a significant lack of nursing care which the offender would reasonably have expected to give rise to a complaint. The complaints from Ms Spencer and Ms Darragh were, properly considered, significant complaints. From a nursing perspective, those complaints suggested that the offender had, in dereliction of her professional duty, refused to provide nursing care. This lies in contrast to the complaint from Ms Patterson, which did not concern the offender's refusal to provide care, but the offender's conduct in the course of providing care. I am satisfied that Ms Patterson's complaint was, for that reason, a less significant complaint, and one which was not, in any case, supported by Ms Turner's observation that Ms Patterson had not suffered any injury.
After the meeting with Ms Turner, and in accordance with the ordinary night shift routine, the offender was left alone in the Dianella ward for two periods of one hour. The first period was between midnight and 1am and the second period between 4am and 5am. During these periods, the care service employee rostered to work in the Dianella ward would go to the Boronia ward to assist the care service employee in that ward with the rounds. The medical records and progress notes that were kept by St Andrews provide no indication that, during the period between midnight and 1am, the offender was engaged in any specific resident-related activity. In other words, other than attending to any request which may be made by a resident, the offender's time was largely her own.
I am satisfied beyond reasonable doubt that while the offender was alone in the Dianella ward between midnight and 1am, she entered the medication room, obtained two syringes, and drew up two injections of insulin. I am satisfied beyond reasonable doubt that this insulin was the Mixtard 30/70 insulin that was stored in the refrigerator in the Dianella medication room. At the time the offender accessed the medication room, there were a significant number of full, unused ampoules of the insulin each containing 3 mLs of liquid comprising 300 units of insulin. I am satisfied that the offender administered injections of that insulin to each of the deceased sometime between midnight and 1am.
I accept Dr Gunja's opinion that a dose of between 100 and 200 units of insulin would be necessary in order to produce a prolonged hypoglycaemic coma of the kind observed in the deceased. I am satisfied that the offender took out two full ampoules of Mixtard 30/70 insulin and injected at least 200 units and up to 300 units of insulin into each of the deceased. That would account for the two empty vials of Mixtard 30/70 insulin found in the sharps containers in the hostel. There was no other reason for those ampoules to have been empty and disposed of in the hostel area. I am satisfied beyond reasonable doubt that the offender disposed of those empty vials in the hostel area when she went there to administer medication to a resident at about 3.15am on 10 May 2014.
At about 1am, after the offender injected each of the deceased with the insulin, the offender and a care service employee commenced a round of the Dianella ward where they attended to the needs of various residents. Not all residents were ordinarily visited on a ward round. Ms Darragh was not ordinarily visited; however, Ms Spencer was. On the ward round, the offender attended Ms Spencer's room, and told her fellow employee that Ms Spencer did not need any attention. During the next round of the Dianella ward, between 4am and 5am, the offender again attended Ms Spencer's room and told her fellow employee that Ms Spencer was "okay". As a consequence, no one except the offender entered Ms Spencer's room during either of the ward rounds to check on her condition. I am satisfied that this enabled the offender to conceal the true nature of Ms Spencer's condition.
The offender finished her night shift at about 6.30am on the following morning on 10 May 2014. During the handover to the morning shift staff, the offender did not report anything out of the ordinary.
At about 6.50am, the morning shift staff went into Ms Darragh's room to wake her. She could not be roused. It was apparent that she was in a deep coma. Palliative care was provided and she died at about 11.30am.
At about 7:30am, the morning staff went to wake Ms Spencer for breakfast. She could not be roused. She was deeply unconscious. She died at about 11.50am.
Both of the deceased, having been injected with significant quantities of insulin in circumstances where neither was insulin dependent, had fallen into a hypoglycaemic coma. Hypoglycaemia, if it is not reversed and if it remains for a period of some hours, leads to irreversible brain damage and death. That is what occurred here as a direct consequence of the injection of insulin by the offender.
On 15 May 2014, a few days after the deaths of the deceased, the offender's premises were searched by police. Prior to that time, the offender, who had not worked since the night shift in question, was not informed of the deaths. During the execution of the search warrant, the offender was told that police were investigating the unexpected and suspicious deaths of Ms Spencer and Ms Darragh. The offender was not otherwise told anything else about their deaths, in particular the cause of death.
In a telephone call to her friend on the morning of 15 May 2014, the offender said that each of the deceased had died because they were administered wrong medication. I am satisfied that the offender knew that this was the cause of death, not because she inferred it from what the police said, but rather because she knew what she had done.
When she was arrested in Victoria, the offender, as was her right, declined to give any explanation to the police about the events which occurred.
During the trial, the offender gave evidence. On her oath she denied that she was responsible for administering the injections to Ms Darragh and Ms Spencer. I reject that denial and am satisfied that her evidence about her lack of involvement in the deaths was, to her knowledge, false. The offender's evidence, unless corroborated, does not merit acceptance. She was an unpersuasive witness who gave convenient answers when pressed. Her memory was selective. I am satisfied that she did not give a true or accurate account of the events of the evening in question.

Specific Statutory Considerations

Section 21A of the Crimes (Sentencing Procedure) Act identifies a number of matters which the Parliament has said constitute aggravating factors and mitigating factors, and which a court must take into account in determining an appropriate sentence. It is appropriate to commence with the aggravating factors. To the extent that any aggravating factor forms part of, or is included in, an element of the offence, I do not have further regard to it.

Aggravating Factors

It is an aggravating factor if the offence is committed in the home of the victim: s 21A(2)(eb). Each murder was committed in the rooms in which Ms Spencer and Ms Darragh respectively lived their lives. Whilst it was not their home, in the sense of a free standing dwelling which they owned or occupied, it was their exclusive residence within St Andrews. It was where they were entitled to feel safe. I take this matter into account as an aggravating factor.
It is an aggravating factor if the offender abused a position of trust or authority in relation to the victim: s 21A(2)(k). The offender murdered the deceased when she was the registered nurse on duty at St Andrews. She was in charge of the complex for the whole of the night shift. She was responsible for the care and safety of all of the residents. In discharging that responsibility she was assisted by her fellow employees. Nevertheless, both because she was the person in charge of the residential premises during that night and because she was the registered nurse whose task it was to care for and promote the health and wellbeing of the residents, she was in a position of trust with respect to each victim. She clearly abused that position of trust. I consider this to be a significant aggravating factor.
It is an aggravating factor if the victim was vulnerable: s 21A(2)(l). Both of the victims, by reason of their age, health and physical limitations and their need for high levels of care and assistance, were vulnerable. I consider this to be a significant aggravating factor.
Finally, it is an aggravating factor if the offence is part of a planned or organised criminal activity: s 21A(2)(n). Whilst the offences involved a degree of planning and deliberation, they were not part of any planned or organised criminal activity within the meaning of this provision. I do not consider this matter to be an aggravating factor.

Mitigating Factors

It is a mitigating factor if the offence was not part of a planned or organised criminal activity: s 21A(3)(b). Whilst I have noted that the offences were not part of a planned or organised criminal activity so as to aggravate the offending, I consider the offences to have been deliberate and calculated. I do not have regard to this mitigating factor.
It is a mitigating factor if an offender is provoked by a victim: s 21A(3)(c). While the degree of provocation sufficient to constitute a mitigating factor is not the same as that necessary to constitute a defence to the offence of murder, I am not satisfied that the conduct of either of the victims, such as complaining to the relevant authorities about the behaviour of the offender, can properly be regarded as provocation on their part. This is not a mitigating factor.
It is a mitigating factor if the offender does not have any record (or any significant record) of previous convictions: s 21A(3)(e). The offender has a record of drug possession. It is of a minor kind and is not relevant in the circumstances here. I take into account as a mitigating factor that the offender does not have any significant record of previous convictions.
It is a mitigating factor if, prior to the offending, the offender was a person of good character: s 21A(3)(f). It is not possible to say that the offender was a person of good character. First, she has a record of conviction for possession of drugs; secondly, it is open to the Court to take into account the fact that in the discharge of her profession the offender was suspended by the relevant regulatory authority because her professional conduct was not satisfactory. This is a factor which goes to her character. Thirdly, her counsel did not submit that the Court should make a positive finding that the offender is a person of prior good character. Finally, the letter from Dr Jhazbhy, which I have taken into account, does not support such a finding. This is not a mitigating factor.
It is a mitigating factor if disclosures made by the defence during the trial have facilitated the administration of justice: ss 21A(3)(l) and 22A. The defence submitted that it facilitated the administration of justice by: 1. producing an agreed statement of facts concerning the offender's career in nursing; 2. allowing the officer-in-charge and other witnesses to tender written summaries of their consultations with other witnesses; and 3. allowing the officer-in-charge to give fingerprint and DNA evidence in hearsay form.
The defence submitted that these disclosures and its cooperation in the running of the trial significantly reduced the number of witnesses to be called and the amount of evidence to be tendered. I am satisfied that these disclosures did facilitate the efficiency of the trial and I take them into account as a mitigating factor.
It is a mitigating factor if the offender is unlikely to reoffend (s 21A(3)(g)), has good prospects of rehabilitation (s 21A(3)(h)), and has shown remorse for the offence (s 21A(3)(i)). Each of these matters can have a powerful effect on the sentence to be imposed. I will address these matters in more detail when I come to discuss the offender's subjective case.

Objective Seriousness

It is necessary to make an assessment of the objective seriousness of these offences. The objective seriousness is to be assessed without reference to matters personal to the offender. It is to be assessed wholly by reference to the nature and circumstances of the offending: Muldrock at [27].
In my assessment, this is a particularly serious case of murder. Each of the victims was vulnerable because of their advanced years, limited mobility, and limited capacity to detect what was happening and to take measures to defend themselves. Further, the offender was in a position of significant trust with respect to each victim. She was the registered nurse in charge of the whole complex whose obligation and duty it was to care for the two victims, to promote their health and wellbeing, and to ensure their safety. Her conduct was deliberate and calculated. It was a gross breach of trust, and a flagrant abuse of her power. The offender's motive to kill, namely that the victims had made complaints about her, was wholly insufficient and self‑centred.
The method by which the murders were to be achieved was intended by the offender to be undetectable. She thought that the deaths would appear to be from natural causes, as indeed they initially did. Her criminality was only discovered by chance.
The steps which the offender took to murder the deceased required a clear intention to kill them, and required her to engage in a series of deliberate and calculated steps including: 1. obtaining the insulin from the medication room; 2. obtaining the syringes from the medication room; 3. using the syringes to draw up the insulin; 4. taking the syringes to the rooms of each deceased; 5. injecting the deceased with the insulin in a way which did not disturb them; and 6. disposing of the syringes surreptitiously and in a way designed to avoid detection, which the offender did by disposing of the syringes in the hostel.
The Crown submitted that the objective seriousness of the offending fell within the worst category of case, and therefore that it was open for the Court to consider imposing a life sentence pursuant to the provisions of s 61 of the Crimes (Sentencing Procedure) Act. In R v Harris [2000] NSWCCA 469; (2000) 121 A Crim R 342, Wood CJ at CL said at [84]-[85]: "84 The features required for qualification in the 'worst case category' were defined in Twala NSWCCA 4 November 1994, where it was said: 'in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed)…' "85 'Heinousness' has been described as follows: 'The adjective 'heinous' which gives the noun 'heinousness' its meaning has been variously defined as meaning atrocious, detestable, hateful, odious, gravely reprehensible and extremely wicked. The test to be satisfied is thus a substantial one". R v Reginald Keith Arhurell (Hunt CJ at CL unreported 3 October 1997)'."
In support of this submission, the Crown pointed to the aggravating factors to which I have earlier referred. As well, the Crown pointed to the fact that each murder occurred in the context of the commission of another murder, which had the effect of elevating the objective seriousness of each murder. The Crown submitted that, on any view, the murder of two women by a registered nurse in a nursing home, where the community would expect that the women would be safe and cared for, is an offence which must fall within, or at least close to, the worst category. The Crown did not submit that I would be falling into error if I did not find that the offence fell within the worst category, however it submitted that such a finding was clearly open.
While I am of the view that these murders were very serious, I am not satisfied that the criminal conduct in this case was so grave as to warrant the imposition of the available maximum penalty of life imprisonment. That is so for two reasons. First, while there was a degree of deliberation and planning involved in the offences, it was not of a sufficient degree to warrant the maximum penalty. Upon exploring this issue at the hearing, the Crown accepted that the offences did not involve lengthy planning or premeditation; rather, they were a response to circumstances occurring about an hour beforehand, namely the communication of the complaints to the offender. I accept the submission of defence counsel that the offences involved, at best, rudimentary planning. I consider that this feature of the offending reduces the offender's moral culpability to an extent which weighs against imposing the maximum sentence.
Second, there is no material to suggest that either of the deceased endured prolonged pain or suffering before their deaths. Offences for which life sentences are imposed commonly involve the infliction of gratuitous cruelty, or prolonged pain and suffering, upon the victims: see R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557 at [71]. Those features are not present in this case. The evidence at trial was that the offender injected each of the deceased while they were asleep, and that the injection caused the deceased to fall into a hypoglycaemic coma which in turn caused their deaths. Neither of the medical experts gave evidence that the manner in which the deceased died caused prolonged pain and suffering to either of them. This feature of the offending, in combination with the lack of detailed planning and premeditation, militates against imposing a life sentence.
Counsel for the offender submitted that the offences fell within the mid-range of objective seriousness. I reject that submission. I reject it because of the serious breach of trust and abuse of power involved on the part of the offender, the vulnerability of the deceased, and the fact that the offender undertook both murders at or about the same time, and as part of a course of conduct that was motivated by the offender's selfish desire to avoid the inconvenience and consequences of an investigation into the complaints made about her by the deceased. I would assess the objective seriousness of each offence and the criminality involved as being significantly above the mid‑range of objective seriousness.

Subjective Circumstances of the Offender

The subjective circumstances of the offender are largely contained in an affidavit affirmed by her on 7 December 2016, which was tendered at the sentencing hearing. The offender was not cross-examined on that affidavit. What follows is a summary of those parts of the affidavit which I am prepared to accept, and which I regard as relevant.
The offender is now 49 years old. She was born and raised in South Africa during the apartheid regime. Her mother was white and her father was of Indian background. Her father was violent and, according to the offender, sexually abused her mother and one of her sisters. When the offender was 6 years old, her parents separated and she and her two sisters went to live with her mother. The offender has had little contact with her father since.
The offender recalls some difficulties growing up in South Africa due to her mixed-race appearance. She recalls that her mother rejected her in favour of her two sisters because they were white, whereas the offender was not. The offender recalls difficulty making friends at high school because other students "didn't understand people of mixed race".
In 2001, when the offender was in her early 30s, she migrated to Australia because of the high crime rate in South Africa and the lack of flexible working arrangements. She settled in Victoria where she worked full-time as a registered nurse. The offender explained that at the time complaints were made about her in Victoria, she was getting little sleep due to the pressures of being a single mother. She records experiencing loneliness in Australia, and she had a number of casual relationships. She recalls drinking heavily in her 30s before, during and after work "just to get through the day".
The offender has three children aged 25 years, 14 years and 6 years - each of whom have different fathers. The two youngest children live with a man whom the offender met in Australia. She is not in contact with either of those children. However, the offender maintains a close relationship with her eldest child.
The offender does not record being diagnosed with any mental health condition. She records that she is presently "not feeling anything" and that she is generally healthy.
In her affidavit, the offender makes no mention of the offences for which she is to be sentenced.
A reference from the offender's stepfather, Dr S. A. Jhazbhay, was also tendered at the sentencing hearing. He records that the offender's natural father abused the offender and her two sisters when they were young, and speculates that this may have had an adverse psychological effect on the offender later in life.
The offender did not tender a report from a psychologist or psychiatrist at the sentencing hearing. In those circumstances, I am unable to conclude for the purposes of sentencing that the offender suffers from any diagnosable mental condition.

Remorse, Prospects of Rehabilitation and Likelihood of Re-offending

As mentioned earlier, s 21A(3) of the Crimes (Sentencing Procedure) Act provides that the Court may take into account as mitigating factors: that the offender is unlikely to reoffend (s 21A(3)(g)); that the offender has good prospects of rehabilitation (s 21A(3)(h)); and that the offender has shown remorse for the offence (s 21A(3)(i)).
I accept that the offender is unlikely to reoffend. However, that conclusion arises primarily because of the offender's age and the fact that, in view of the lengthy sentence of imprisonment which must be imposed upon her, she will be an elderly woman upon her release. Accordingly, I will take this mitigating factor into account when considering the sentence to be imposed.
There is little, if any, material upon which I can make an assessment of the offender's prospects of rehabilitation. The offender has not admitted to the offences and has not expressed any insight into her offending behaviour. There is no psychiatric or psychological report dealing with the offender's prospects of rehabilitation, nor is there any material indicating that the offender has made efforts to rehabilitate herself while in custody. In those circumstances, I am not satisfied that the offender has good prospects of rehabilitation.
The offender has not expressed any remorse for the offences. She pleaded not guilty to the offences and denied the offences when giving evidence. Her affidavit tendered at the sentencing hearing made no mention at all of the offences. In those circumstances, I cannot take this into account as a mitigating factor.

Other Matters Relevant to Sentence

The defence submitted that the Court should take into account the offender's difficult upbringing as a further mitigating factor on sentence. The defence referred to Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571, where the plurality said at [40]: "40. …The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way."
The plurality went on to say at [42] that the effects of profound deprivation in childhood do not diminish over time, and are to be given full weight in the determination of the appropriate sentence.
Taking the difficulties in the offender's upbringing, as expressed in her affidavit, at their highest, I am not satisfied that they constitute circumstances of profound deprivation in the Bugmy sense. Nevertheless, I take into account the offender's upbringing as a matter relevant to the determination of the ultimate sentence.
It was submitted on behalf of the offender that the fact that she has been in protective custody from time to time, and is likely to be placed in protective custody during her incarceration, means that she will serve any term of imprisonment in conditions which are more harsh than is ordinarily the case. I take this matter into account although, in those circumstances, I do not regard it as carrying any significant weight, particularly because there is no basis to conclude that the offender will need to serve the whole of any term of imprisonment in protective custody.

Victim Impact Statements

The Court heard six victim impact statements from relatives of the deceased. Those statements make clear that the death of each of the deceased has caused significant harm and distress to their immediate families.
Pursuant to s 28(4) of the Crimes (Sentencing Procedure) Act, the Crown applied for these statements to be taken into account in sentencing the offender. I consider it appropriate to take these statements into account on the basis that the harmful impact upon the immediate family of each of the victims is an aspect of harm done to the community.

Sentencing

In considering the appropriate sentences to be imposed on the offender, I commence with the reminder that murder involves the criminal taking of a human life. It is a violation of the sanctity of human life which is a concept at the heart of a civilised community.
Any conviction for murder warrants a substantial sentence because the purposes of punishment and general deterrence are of significant importance. In the offender's case, because of the particular circumstances, attention must also necessarily be paid to specific or personal deterrence. In my view, the offender's decision to administer insulin - a medication which is ordinarily meant to promote good health - in a way which was toxic and deadly and in the setting of a facility which provides care for older citizens, is conduct which is almost too awful to contemplate. It demonstrates a complete lack of respect for human life, a failure to recognise the dignity and integrity of older citizens, and a complete abrogation of the tenets of the caring profession of nursing which underpins so much good in society. It is simply conduct which cannot be tolerated and which needs to be firmly denounced and deterred.
I am not satisfied that I should make a finding of special circumstances as the law permits: s 44(2) Crimes (Sentencing Procedure) Act. In my view, the usual period of parole will be adequate to assist the offender to reintegrate into the community at the completion of her non-parole period. There is no other sufficient reason to find special circumstances.

Sentence

I have now discussed all of the facts relevant to sentence, including the relevant subjective circumstances of the offender, and it is now necessary to make a value judgment as to the appropriate sentence. Each murder was a serious offence which falls significantly above the mid-range of objective seriousness.
I determine the appropriate sentence in each case to be one of 30 years imprisonment with a non-parole period of 22 years 6 months.
Although the offences occurred within a short time of one another, involved largely the same conduct, and were similarly motivated, I have nevertheless determined that there should not be complete concurrence between them. That is because there was some conduct directed specifically to each of the deceased. More importantly, unless some measure of accumulation is to apply, there would be no adequate or separate recognition of the value of the life of each of the deceased criminally taken by the offender. Further, no attention would be given to adequate punishment for each offence nor to the denunciation of the conduct as it related to each deceased.
In considering the extent of accumulation, it is necessary to keep in mind the common law principle of totality to which I earlier referred, namely that the ultimate sentence must be a just and appropriate one which reflects the totality of the criminal behaviour. Here, the imposition of a single aggregate sentence for both offences is the preferable means of ensuring that this principle is addressed

Commencement Date

The offender was taken into custody on 7 July 2014, and she has been in custody with respect to these two offences ever since. It is appropriate for the aggregate sentence which is to be imposed, to commence on that date.

Offence of Serious Personal Violence

I am required to warn the offender, which I now do, of the existence of the Crimes (High Risk Offenders) Act 2006 and the fact that that Act applies to the offences of murder of which she has been convicted and for which she is about to be formally sentenced. At some future point in time an application may be made that, notwithstanding the completion of her sentence, the offender continue to be detained or else be subject to an extended supervision order impacting upon her liberty.

Sentence

I indicate the following sentences: 1. For the offence of the murder of Ms Isabella Spencer, the appropriate sentence would be a non-parole period of 22 years and 6 months, with a balance of term of 7 years and 6 months. 2. For the offence of the murder of Ms Marie Darragh, the appropriate sentence would be a non-parole period of 22 years and 6 months with a balance of term of 7 years and 6 months.
For these two offences of murder, I impose an aggregate sentence comprising a non-parole period of imprisonment of 27 years commencing on 7 July 2014 and concluding on 6 July 2041, with a balance of term of 9 years commencing on 7 July 2041 and concluding on 6 July 2050.
Ms Haines will not be eligible for release on parole on any date earlier than 6 July 2041.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2016

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (19 paragraphs)

Parties

Cases Cited (21)

Cited By (1)