R v Hood [2002] VSC 123

11. At this time both you and Daryl Colley had experienced several disastrous personal relationships, yours being heterosexual and his homosexual. A friendship developed between you almost immediately. You described Mr Colley to your counsel, Ms Sutherland, as gentle, loving and caring; a person who made you feel good about yourself and, you believed, a friend for life.

14. The relationship became a sexual one and on 9 September 2000 you set up house together at 61 Isla Avenue, Glenroy.

17. Your relatives and friends, who had always regarded you as heterosexual, were very surprised at this turn events but, it seems, were accepting of it.

20. About a month after you had commenced to cohabit, you learnt that Daryl Colley was HIV positive but that did not diminish your feelings for him. Your relationship was a monogamous one in which you were mutually supportive partners, doing everything together. In her statement to police, Mr Colley's sister Donna said of you: "he made by brother happy, so I was happy and he seemed like a nice decent man who loved and respected Daryl, that's all that mattered".

23. As fate would have it, in the early months of 2001 you came to the conclusion that your sexual orientation was, in fact, heterosexual. In March of that year you broke the news to Daryl Colley that you preferred women and, indeed, had commenced going out with a female friend. Mr Colley was extremely upset by this revelation since he had desired the relationship to be a permanent one. Thereafter, although you remained friends, you slept in different bedrooms in the Glenroy premises.

26. Apart from the devastation caused by the break-up of the relationship, Daryl Colley experienced two other significant setbacks to his self-esteem at about this time. First, the Peel Hotel Collingwood, at which he performed each week, terminated his services. Secondly, on about 10 April 2001 he lost his job at Zamel's Jewellers in Broadmeadows. As a result of this series of unfortunate events, he became quite depressed. According to his mother, Mrs Norma Colley, who he was ringing five times a day during this period, it seemed to him that his whole world was caving in.

29. Parallelling these emotional traumas, there is some evidence that the deceased was concerned about his physical well-being, although there is considerable confusion about the nature of any illness he may have had. There was consensus among friends and relatives that Mr Colley was prone to exaggerate or even tell untruths as an attention seeking technique. For example, he claimed to his sister Donna to have had an operation at the Alfred Hospital for brain tumours in 1999; to his father Raymond, and to other friends, he said he had been the subject of an operation for throat cancers; to his mother, he spoke of undergoing chemotherapy for chest cancers and in April 2001, he also told her that he had a brain tumour and had only a short time to live.

32. Daryl Colley's final version of his ill-health, recounted to family and friends, was that he was suffering from inoperable brain tumours which would result in him becoming "a vegetable" within a short period of time. This assertion was accompanied by apparent headaches and short episodes of dizziness, nausea, and vomiting. These physical symptoms may, to some extent, have been psychosomatic in nature because the autopsy performed on the deceased, although it did not involve an exhaustive examination of the brain, did not reveal the existence of any tumours and there is no medical evidence of any condition which might have specifically generated the symptoms exhibited. Nonetheless, on Wednesday 18 April 2001, the existence of a brain tumour and the HIV were reasons advanced by Mr Colley for his desire to end his life.

35. On the Thursday, Daryl Colley told you that he proposed to kill himself by taking an overdose of pills and asked you to assist to finish him off if the pills did not work. He gave a specific time of 7.30 p.m. on the following Saturday, being the 21st of April, for his suicide. You told the interviewing police that you attempted to dissuade him from this course, telling him it was silly and, in effect, that he had too much to lose. According to your counsel, you even offered to resume the sexual relationship with him, but this overture was rejected. Daryl Colley remained adamant that he wanted to die with dignity.

38. At the time you were still uncertain whether Mr Colley's announced intention to take his own life was a real resolve or an attention seeking ploy. As that Thursday progressed, Mr Colley recorded music and a brief message on a number of audio tapes which were later distributed to you, his sister Donna, his mother, and other close friends. On your tape the deceased, in effect, expressed the view that he had ruined your life and apologised.

41. At Daryl Colley's instigation, a party or wake was organised for the Friday evening. A number of the deceased's family and friends, estimated between 40 and 70 in number, attended. People were invited to bring photos of themselves and Mr Colley. A black condolence book was produced in which people made signed comments about him. During the course of the evening, Daryl Colley informed the guests individually of his intention to take his life. Essentially the reason he gave was his desire not to become a vegetable as the effect of the brain tumours worsened. Later that evening he made a speech in which, among other things, he thanked people for coming and described what the friendship and love of individual friends meant to him. He said he was going to sleep the next afternoon and wanted to be remembered just as he was.

44. Guests received a sealed envelope which was not to be opened until they reached home. It contained a letter upon which was a photograph of Mr Colley adjacent to a poem written by him exhorting the reader not to be sad and asserting this was not really goodbye.

47. It is fair to say that like you, a number of those present were uncertain as to Mr Colley's real intentions in the light of his past "drama queen" performances. Nonetheless it is clear from the material that you, the family of Daryl Colley, and many of his friends, attempted to talk him out of his expressed wish to die. It is also apparent that he presented throughout as a person with a firm and fixed intention to take his own life.

50. On Saturday 21 April, various people came to visit Daryl Colley. These included his parents, a brother and sister, and several other close friends; your own parents also attended. At some stage that day, Mr Colley produced a suicide note on his computer. It included the words:

"Ray, I no (sic) that you will find this letter before anyone else and all I can do is say sorry but I'm tired lots has happened and I'm not strong anymore[.] I wanted to die at home because I wanted to be around the things that meant a lot to me[.]"

54. During that afternoon Daryl Colley handed the visitors some personal effects through which he thought they would like to remember him. Mr Colley's mother laid out on his bed a male suit that he had chosen to wear.

57. At one point to you travelled with one of Daryl Colley's friends to a Glenroy pharmacy. There you and the friend each purchased a quantity of Panadeine tablets, apparently at Mr Colley's request. Another of his friends had earlier arrived at the house with medication for him.

60. At 6.30 p.m., as was the plan, you asked people to leave the premises. This was a highly emotional time with the deceased's family being particularly devastated by his decision which it now seemed certain he would carry out.

63. According to your account, after everyone had left, you and Daryl Colley sat on the couch. He was drinking wine and scotch whisky. You were drinking red wine and reading aloud to him the entries in the condolence book. Mr Colley got up, put on one of his favourite CDs and returned to the couch with a freezer bag full of tablets. He commenced to take the tablets with the red wine, instructing you to keep reading. Although the times involved are unclear, the deceased ultimately became drowsy. At his request you carried him to the bedroom and lay him on the bed. He had already placed the suicide note there. He took further tablets and you lay on the bed next to him, continuing to read from the condolence book until he went to sleep.

66. An indeterminate amount of time passed after which you became concerned that the large number of tablets were not achieving the desired result. At about 8.30 p.m. you rang your father, Alan Hood, and told him the tablets were not working and that you would have to "finish it". He told you to wait as the tablets might take some time. The reference to finishing it related to your agreement with Daryl Colley to ensure that he died if the tablets proved ineffective. He had expressed the fear of coming back as "a brain dead person". This arrangement had been spoken about in front of a number of Mr Colley's friends. At one stage it was referred to as "plan B".

69. You waited for some hours for the tablets to end your friend's life. Ultimately, however, you embarked upon a more active role in an endeavour to carry out his expressed wish. There is some conflict in the evidence as to precisely what you did. However, the most reliable version would seem to be the one you provided to the interviewing police; namely that you used your right hand to hold Mr Colley's nose and cover his mouth, an action you persisted for 30 seconds or a little more. Although asleep, this provoked reaction from Daryl Colley's body which appears to have been a reflexive resistance to what you were doing. This activity made you feel ill and caused you to desist. In essence, you stated to the police that after this manoeuvre, Mr Colley continued breathing.

72. This account is corroborated, to some extent, by the statement of your father who you telephoned shortly prior to midnight. He records you as saying, "It's not working, I tried to finish him off by putting my hand over his mouth but it made me sick."

75. In fact the cause of death, in the opinion of Dr Michael Burke, a senior pathologist at the Victorian Institute of Forensic Medicine, was combined drug toxicity. Other than alcohol the substances found in the deceased's blood were codeine, morphine paracetamol, diazepam and temazepam. Professor Olaf Drummer, a highly credentialled toxicologist at the Institute, described the results of the drug testing as: "consistent with excessive and fatal ingestion of codeine/paracetamol in a man using alcohol and benzodiazepines". Dr Burke observed none of the signs of mucosal injury to lips, tongue or gums, which may occur when airway obstruction is instigated by the placing of an object over or around the mouth - albeit if an individual were semi-conscious or unconscious, then an injury would not necessarily occur.

78. Accordingly, there is no medical evidence that points to you causing the death of the deceased by obstructing his airways. Indeed, Mr Morgan-Payler the Chief Crown Prosecutor conceded, on behalf of the Crown, that although you endeavoured to obstruct the airways, that action did not result in Mr Colley's death. If it had done so you would, of course, have faced a far more serious charge.

81. After Daryl Colley had died you rang a number of his relatives and friends to inform them of what had occurred. You then left the house and drove around the metropolitan area for the balance of the evening before returning to Isla Avenue about 7.30 a.m.

84. You called the police about 8.40 a.m. In the meantime, you tidied the house, washed the dishes and disposed of empty alcohol bottles so the police would not become aware that other people had been present with knowledge of what had been planned. You also flushed some of the tablets down the toilet, although a box of 100 Panadol tablets remained. Finally, you removed a pair of female shoes that the deceased was wearing with his suit. You did not think it appropriate that people observe him attired in that fashion.

87. You initially told the police that you had been out all night and had returned to find Mr Colley dead in bed. You later explained that untruth on the basis that you had been scared of the exposure of your homosexual relationship with him and the possible legal repercussions for yourself and the other people who had been involved in the lead-up to his death.

90. One other piece of evidence is worth noting. In the days immediately preceding Mr Colley's death, he spoke to one of his friends about a movie entitled "It's My Party". This is a film he had viewed many times and from which he was able to quote lines. Indeed, the friend described him as being obsessed with it. It featured a gay architect who was diagnosed with AIDS. As a result of this his long time companion left him. Subsequently he developed brain lesions that affected memory, vision and motor skills. He decided to end his life, a cause of action that had the blessing of his friends and family. Prior to doing so he organised a two day farewell party. In the circumstances it is a reasonable inference to draw that Daryl Colley was influenced by this film in planning his own death.

93. In considering this offence, I should state immediately that it is not the function of this court to enter upon any debate on the subject of euthanasia combining as it does issues of law, medicine and morality. Attention must be directed to the current state of the law.

96. As long ago as 1967, suicide and attempted suicide ceased to be crimes in Victoria. However, Parliament retained an offence of aiding or abetting another person to commit, or attempt to commit, suicide. That offence carries a maximum penalty of five years' imprisonment. Accordingly, whilst the law recognises the right of an individual to take his or her own life, it prohibits the assisting or encouraging of a person to pursue such a course of action. This offence remains on the statute books because the importance of human life, and its preservation, is a fundamental principle of our society. This concept is often encapsulated in the phrase "the sanctity of human life". This law is also designed to protect a vulnerable person who opts for suicide at a time when extreme depression, from whatever cause, may provoke an irrational and emotional decision by that person to end their life. To this extent, the law may be seen as life affirming and not life denying and directed at discouraging suicide as a response to the emotional vicissitudes of life.

99. The degree of moral blame attributable to a person who assists or encourages an act of suicide may vary greatly from case to case. At one end of the spectrum may be placed a person who assists or encourages a person to commit suicide in order to inherit property or for some other ulterior motive; at the other end there is the individual who supplies potentially lethal medication to a terminally ill person, perhaps a loved one who is in extreme pain and who wishes to end that suffering at the earliest possible opportunity. I regard your case as being some way towards the latter end of this spectrum.

102. Examples of relatively recent cases in which these issues have been discussed include Rodriguez v. Attorney-General of Canada [1994] 2 L.R.C. 136, and Pretty v. DPP (No. 2) [2001] E.W.H.C. Admin. 788. Such cases are very rare in these courts, although my researches have revealed one earlier Victorian sentence, namely R v. Larkin, in which Nicholson, J. released an offender on a three year good behaviour bond. That case occurred on 14 April 1983.

105. In the present case the destruction of an important personal relationship, the loss of his employment and the termination of his engagement as an entertainer, had combined to produce in Daryl Colley a considerable level of depression. It appears that his depression was exacerbated by his belief, which may be regarded as genuinely held by him, that he was terminally ill. In such a situation it is certainly arguable that, in the days leading up to his death, an approach suggesting counselling through an organisation capable of providing it should have been aggressively pursued by you and others. Certainly, it was not a situation where you should have provided to him the means for ending his life. Nor should he have been encouraged or sustained in his resolve by your continuing presence. Further, once Mr Colley lapsed into sleep you had an opportunity to seek medical assistance for him.

108. That being said, there is no doubt that you, like the others around him, were affected by his assertion that he had a brain tumour and faced a future of pain leading inevitably to a comatose state. It was a statement you believed. You were swept up in this highly charged emotional atmosphere and your agreement to assist Daryl Colley was also motivated by the feeling that, having destroyed the relationship which meant so much to him, you should not desert him in what appeared to you to be his time of need. As I have previously stated, I also accept that initially you made an effort to talk him out of his intention to die.

111. It was put by your counsel that your assistance to Daryl Colley was both courageous and an act of love. Accepting that description of what you did it was, nonetheless, misplaced courage and misguided love.

114. Your conduct after Mr Colley died suggested you had some awareness of the legal wrongness of your assistance in bringing about his death. However, I accept as truthful your comment to the investigating police acknowledging your stupidity and expressing your regret in agreeing to Daryl Colley's request for assistance.

117. I take all these matters into account in determining the sentence to impose.

120. There are also matters personal to you which are relevant in deciding an appropriate sentence. Before discussing them, I should briefly mention the deceased and his family.

123. Daryl Colley was 30 years old at the date of his death. After leaving school he commenced an apprenticeship as a chef, but he did not pursue that career. He married at the age of 21, but after he realised his homosexual orientation, and commenced to perform in gay bars, that marriage fell apart.

126. Although there were no Victim Impact Statements submitted to the court, it is apparent from the depositional material that Daryl Colley was close to his family, particularly his mother Norma and sister Donna. As the attendance at the wake demonstrates, he also had a wide circle of friends. There is no doubt that Darryl Colley's death distressed both his family and friends but all of them speak of his unswerving determination to end his life.

129. Raymond Hood, you are 31 years of age. You have one sister, Kim, with whom you have a close relationship. That same closeness exists with your father. None of your family have ever been in trouble with the police.

132. Your secondary education was at Coburg Technical School. You left school at the age of 15, halfway through Year 9. You commenced work as a general hand and cleaner and similar types of employment followed. At one stage, over a period of about two and a half years, you rose from being trolley boy at Safeway Coburg to a merchandising manager. Later, you worked as a truck jockey with Titan Removals in Coburg, a business operated by your sister's then husband, Shane Chillcott, who gave character evidence on your plea. Mr Chillcott spoke of your capacity for hard work and your trustworthiness. As to your nature, he described you as "a gentle giant".

135. After other employment in the transport industry, you attempted to establish your own business, Mobile Cow, a milk delivery enterprise which, unfortunately, did not succeed. More recently, you have undertaken a course at Kangan TAFE College, Coburg, in automotive skills with the ambition of setting up business as a mechanic.

138. During your late teenage years you contracted post infection polyneuritis. As a result you spent three months in Heidelberg Repatriation Hospital and over a year in a wheelchair. Despite an unfavourable prognosis as to your capacity to walk, you overcame your disability with the aid of an extensive physiotherapy program.

141. I have mentioned your eight year partnership with Ms Narelle Cannaway, who also gave evidence on your plea. There were two children from that relationship, now aged seven and six. Ms Cannaway, who remains on good terms with you, praised your devotion to your children. Your association with your present wife, Kylie, commenced in May 2001, and you married on 15 December last year. Your wife had a 23 month old daughter named Madison, to whom you effectively have become the father.

144. Evidence was given to this court also by Ms Sue Thomas and her teenage son Corey, covering such matters as the strength of your marriage bond, your loving approach to Madison and your father-figure relationship with Corey.

147. You have never been in trouble with the police and the evidence indicates that you do not have an aggressive personality.

150. A report dated 22 March 2002, prepared by Mr Jeffrey Cummins, a Clinical and Forensic Psychologist, records that you are of normal, although slightly below average, intelligence and have no psychotic or personality disorders. You do present as having what Mr Cummins described as "a dependent personality style". Mr Cummins also indicated that you are presently suffering from a Reactive Agitated Depressive Disorder. This is solely related to your current legal predicament which you find overwhelming.

153. The trauma of initially being charged with the murder of your close friend was compounded by the five weeks you spent in custody. I accept that these events, in themselves, constitute an element of punishment for you.

156. Up until this incident you have lived an unblemished life and, given your subsequent history, there is every reason to believe that you will never again transgress the law. Accordingly, no weight needs to be given to specific deterrence.

159. Your plea of guilty is, itself, illustrative of your remorse at being involved in Daryl Colley's death. As you stated in your record of interview, and reiterated through your counsel, you now believe it was morally wrong to, in effect, stand by and watch Daryl Colley die, albeit that this was Mr Colley's expressed wish. I take these matters into account in your favour.

162. The very unusual circumstances of this case make the question of what is an appropriate sentence one for which there is no simple answer.

165. I have already endeavoured to explain why the law continues to regard what you did as an offence which requires denunciation, and why the deterrence of others from engaging in this type of conduct remains an element of any sentence to be imposed, even though such cases are rare. In the circumstances I am unable to accede to your counsel's submission that you be given a good behaviour bond without any conviction. On the other hand, I do not believe that thoughtful members of this community, knowing all the facts relating to you personally, and the unique circumstances of this case, would regard your immediate imprisonment as necessary. In any event I do not.

168. Justice in your case may be achieved by imposing a sentence of imprisonment which is suspended. The length of that sentence will be 18 months, but the whole of that period will be suspended.

171. Mr Hood, I am giving you the opportunity to get on with your life without having to undergo any actual imprisonment by suspending the whole of your 18 month sentence. During that period you must not commit another offence punishable by imprisonment or you may be required to serve some or all of the suspended sentence. Do you understand that?