R v MATHERS

The objective seriousness of the offences 35In determining an appropriate sentence, it is necessary to establish the objective seriousness of the offence committed, as well as the personal circumstances of the offender. 36There is, of course, nothing more precious than human life and, in this case, the death of Ms Griffith is particularly poignant, having regard to the long relationship which she enjoyed with Mr Mathers. It was a relationship marked by a shared happiness and devotion to one another. 37There are, as one would expect, degrees of culpability in relation to the offence of manslaughter. In R v Blacklidge (NSWCCA, unreported 12 December 1995), Gleeson CJ stated (at 4):- "It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability." 38In August 2010, Mr Mathers offered to plead guilty to a charge of manslaughter on the basis of substantial impairment. The Crown accepted the plea on that basis. The plea involves what is referred to as a partial defence formerly known as diminished responsibility. 39In Blacklidge (supra), the Chief Justice commented upon the partial defence in the following terms (at 4):- "... The abnormality of mind substantially impairs the offender's mental responsibility for his or her act but it does not negate such responsibility. The reduction in the capacity for self-control which results from the abnormality of mind diminishes the responsibility but it does not excuse the act (R v Low (1991) 57 A Crim R 8)." 40Accordingly, in the present case, it is necessary to establish the relevant state of mind of Mr Mathers at the time he committed the offence. Having done so, the question then arises as to what extent is it reasonable to attribute culpability or moral blameworthiness to him, given his state of mind. 41Section 23A of the Crimes Act , in part, provides that a person who would otherwise be guilty of murder is not to be convicted of murder if:- (1) At the time of the acts or omissions causing the death concerned, the person's capacity to understand events or to judge whether the person's actions were right or wrong or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition. (2) The impairment was so substantial as to warrant liability for murder being reduced to manslaughter. 42The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of s.23A. Section 23A(8) defines "underlying condition" as meaning a pre-existing mental or physiological condition, other than a condition of a transitory kind. 43It has been held "abnormality of the mind" means "a state of mind so different from that of ordinary human beings that the reasonable man would term it 'abnormal'". It has been held wide enough to cover the mind's activities in all its aspects including the ability to form a rational judgment as to whether an act is right or wrong: R v Byrne [1960] 2 QB 396 per Lord Parker CJ at 403.

The medical evidence 44The medical evidence tendered in the present proceedings includes a report from a treating doctor, Mr Mathers' general practitioner, Dr Razvan, dated 23 July 2009 together with specialist medical opinion including, in particular, the opinions of Dr Nielssen and Dr Samuels and Dr John Hilton, consultant in forensic medicine.

(1) Dr Razvan, general practitioner 45Dr Razvan, in his report, stated that Mr Mathers' general state of health was poor. He said that he suffered from hypertension and hyperlipidaemia. He underwent a radical prostatectomy for a cancer followed by a degree of incontinence. He also underwent bilateral corneal grafts. One failed and he needs to use pinhole glasses in order to see. He was prescribed medication for his hypertension and hypolipidaemia and has been prescribed medication by his ophthalmologist. 46Dr Razvan stated that Mr Mathers is highly regarded in the community and observed:- "I know him as a cultured person, a gentle person known as 'the blind musician'."

(2) Dr Nielssen, psychiatrist 47Dr Nielssen's report dated 7 April 2011 contains a detailed history of events concerning Mr Mathers' relationship with Ms Griffith and relevant events prior to her death, details of his medical and psychiatric history and other general history. 48Dr Nielssen noted that he had had a relationship with the deceased for 22 years and that in the early part of it, Ms Griffith was caring for her elderly mother, who eventually moved to a nursing home. She said that after visiting her mother she would often say that she never wanted to be placed in a nursing home herself. Mr Mathers told Dr Nielssen that he himself had a similar experience with his mother's death from a painful cancer. 49He provided Dr Nielssen with an account as to Ms Griffith's problems associated with osteoporosis and arthritis and, in particular, severe back pain and the doctors who had cared for her had told her that "nothing could be done" about her condition or her pain. He said that after she received that advice, she decided to end her life. 50The offender told Dr Nielssen "at this stage I wonder what my role is ... On one hand, I don't want to lose her and on the other hand I did not want to see her in agony" . He said "I asked her if I put on a display could I change your mind and she said 'no'" . 51Mr Mathers' history to Dr Nielssen included the fact that the deceased had discussed the plan with her twin sister who had been aware of Ms Griffith's wish to end her life because of the severity of her pain and her wish to avoid going to a nursing home. 52He told Dr Nielssen that after Ms Griffith had taken the medication she lapsed into unconsciousness and began to breathe irregularly. He said that the state of her breathing convinced him that she was "brain dead" but said that as he watched her she continued to breathe. He said "I felt that I'd run out of options ... If she woke up, she would have been a vegetable and would have had to go to a nursing home, which was her worst nightmare ... so I suffocated her with a pillow" (p.2). 53In the history of the relationship, Mr Mathers told Dr Nielssen that, although they had separate houses, they spent a lot of time together and he would see Ms Griffith everyday and would speak to her at night when he stayed at his own place. 54He said that they had had a group of mutual friends and several holidays together including overseas trips. He said that when it became evident how unwell and limited Ms Griffith had become, he was prepared to become her carer, including moving in to live with her if necessary. 55The material in evidence establishes that he was a beneficiary in her Will but he had been so in an earlier Will. He told Dr Nielssen "money was not a motivation" . The Crown accepts the truth of the evidence in that respect. 56As to his own emotional state at the time, Mr Mathers told Dr Nielssen that he was "highly stressed" . He said that he has always been an anxious person and had retired from teaching because of the anxiety experienced in teaching situations. He said that when Ms Griffith expressed her wish to commit suicide, he felt very distressed and sad about the prospect of losing her. 57He said he was also saddened by the effect her chronic pain had on her. The history given included an inability to fall asleep and, when he did so, waking up worrying what to do. He said that he had had difficulty thinking clearly or making a decision. 58He had given a history of being badly depressed in the past, but he said that his experience on this occasion "wasn't like that" . 59He was seen by a psychiatrist in the late 1970s by reason of stress experienced whilst teaching and was invalided from teaching on the grounds of anxiety and depression. Since leaving work he had not had any kind of counselling or other treatment for any psychiatric disorder. 60The history given to Dr Nielssen was that Mr Mathers had experienced symptoms of depression at intervals during his adult life and he reported a severe episode of depression around the time that he dropped out of teaching when he contemplated suicide. 61He had a further period of depression when he made an unsuccessful attempt to retrain as a physiotherapist. 62Whilst he said that the years that he had with Ms Griffith had been the happiest of his life, he became depressed again after she became ill. 63During the deceased's illness, he said that he experienced difficulty thinking clearly and was unable to make a decision. His sleep was interrupted and he felt feelings of anxiety for no clear reason. 64Dr Nielssen, as I have earlier indicated, made a diagnosis of anxiety disorder and of a depressive illness. He said the disordered condition was best described as an adjustment disorder or a clinically significant response to a life event, namely, in his case, the grief reaction surrounding his long term partner's physical condition and her planned suicide. 65Dr Nielssen considered that Mr Mathers' mood disorders were an underlying condition within the meaning of s.23A of the Crimes Act and that his condition gave rise to an abnormality of mind, in the form of a state of anxiety and depression which affected his perception of events, his ability to judge right from wrong and also his ability to control his actions. He further opined that his depressed state effected his moral decision-making during his sleepless vigil after the deceased's initial overdose and his decision to help her take a further overdose and then to suffocate her when she continued to breathe in an erratic way. He said these were affected by the morbid perception of events and belief about the deceased's wishes and what he had to do. Further, inflexible thinking arising from his unusual personality contributed to the severity of the impairment in his reasoning which he experienced at the time of the offence.

(3) Dr Samuels, forensic psychiatrist 66Dr Anthony Samuels, consultant psychologist, examined the offender at the request of the Director of Public Prosecutions on 6 April 2011. In his detailed report, he reviewed the sources of information that had been provided to him including the Crown Case Statement and Dr Perl's report of 23 March 2010. 67Dr Samuels noted that at the time of Ms Griffith's death, Mr Mathers was on an anti-viral agent and that there was some evidence that this medication could cause depressive and anxiety type symptoms. He said it was certainly possible that this medication could have increased his vulnerability to depression. 68Dr Samuels expressed the opinion that he had a vulnerability to depression which had become more prominent in his mid-30s and that there were vulnerabilities in his personality structure that compounded his difficulties in coping with his partner's illness. 69He observed that Ms Griffith was an enormously important friend and person in his life and, in the context of her deteriorating physical state and the prospect of losing her, he suffered a return of depressive and anxiety symptoms. 70The history included a three week period in which he was preoccupied with the deceased's pain and suffering and was not sleeping and was consulting with professionals and desperately seeking ways to help her. 71On the issue of substantial impairment, Dr Samuels was of the view that, as at the time of Ms Griffith's death on 7 July 2009, Mr Mathers was suffering, possibly for up to a period of three weeks, a depressive reaction in terms of DSM-IV-TR which was most likely an Adjustment Disorder with Depression and Anxiety. 72In the days before her death, his mood and anxiety symptoms could have reached a threshold and diagnosis of Major Depressive Disorder. He considered that the depressive condition was an underlying condition which lead to an impairment of an abnormality of mind within the meaning of s.23A of the Crimes Act. 73In light of the medical evidence of Dr Nielssen and of Dr Samuels, it is clear that the Crown appropriately acted in accepting the plea to manslaughter.

Submissions 74I have had the benefit of detailed written submissions prepared by counsel for Mr Mathers, Mr A Bellanto QC and Mr H White of counsel. I have also had detailed submissions from the learned Crown Prosecutor dated 19 April 2011. The written submissions by counsel were supplemented by oral submissions. 75I express my indebtedness to all counsel for their detailed and helpful submissions.

The appropriate sentence 76There are a number of well-recognised aspects to the sentencing of offenders. They include punishment, denunciation, deterrence and protection of the community. 77However, sentencing is not a blunt instrument Sentences are to be imposed in accordance with accepted sentencing principles and imposed only after careful assessment of all material facts and circumstances concerning the particular offence and the offender. There is no basis for excluding a merciful application of relevant principles where the evidence demands it. 78Important in this case are the following matters:- (1) Ms Griffith, on the evidence, was in a cognitively sound state of mind when she decided that she wished to end her life. (2) In that respect, she held a strong fear that the painful condition from which she had suffered would culminate in her being confined to a nursing home and to there live the life of a fully dependent invalid. (3) The fact that Ms Griffith had mental capacity, at the relevant time, at the relevant time is an important fact. This is not a case of one person making a decision for another. (4) Ms Griffith made known to Mr Mathers her wishes, he being the person that she loved more than anyone else. That presented the offender with an agonising conflict. As he told police, "She couldn't see any other way out to do this. And I couldn't see anything else but to respect that decision" (ERISP Q.96). (5) Human experience indicates that lucidity of thought in resolving situations involving personal conflict is often difficult to achieve. Where, as in the present case, there is affirmative evidence that the offender's decision-making was impaired by his depressive state, it is clear that his capacity to resolve the situation that he was in, namely, a life/death decision of the person that he loved, was significantly reduced. Dr Nielssen encapsulated the dilemma facing the offender as follows (p.7):- "... People who are depressed have a view of the world that is pervasively negative, and from that perspective Mr Mathers saw Ms Griffith's future as bleak and her decision to commit suicide as rational. His depressed state affected his moral decision-making during his sleepless vigil after her initial overdose, and his decision to help her to take a further overdose and then to suffocate her when she continued to breathe in an erratic way, notwithstanding the possibility that he exaggerated his role in her suffocation, was affected by the morbid perception of events and belief about her wishes and what he had to do, arising from the perspective of a person in a depressed state. Inflexible thinking arising from Mr Mathers' unusual personality contributed to the severity of the impairment in his reasoning he experienced at the time of the offence." 79In R v Hill (1981) 3 A Crim R 397, Street CJ at 402 observed:- "The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual context which provides some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party." 80In a case such as the present, the imposition of a sentence which meets both the standards and demands of the criminal justice system and the expectations of the community at large, but which also takes account of the offender's dilemma and mental state, is not one without difficulty.

Mitigating factors 81In determining the sentence to be imposed, I find and take account of the following mitigating circumstances:- (1) The offender's previous good character. (2) The motives of love and compassion which attended his acts contributing to Ms Griffith's death. (3) The fact that Ms Griffith was very ill and in severe pain and wanting to end her life. (4) The medical evidence which uniformly establishes that, in the events occurring in the three weeks prior to Ms Griffith's death, Mr Mathers suffered a depressive reaction and the development of an adjustment disorder and depression with anxiety which led to an impairment of his perception of events and his decision-making capacity. (5) The plea of guilty to the charge of manslaughter and the fact that he was genuinely remorseful for his actions. (6) The candour of Mr Mathers' disclosure and admissions to police and the fact that his frank record of interview was accepted by the Crown as having been an accurate account. (7) The absence of any prior convictions and that he has led an unblemished life. 82In the present case, it is noted that there are no aggravating factors that the Crown relies on. 83It has been submitted by Mr Bellanto QC for Mr Mathers in the present proceedings that there is no reason or cause for specific deterrence of the offender from committing similar offences. I accept that submission. I am satisfied that the offender will never offend again. 84I also accept the submission made on behalf of Mr Mathers in determining sentence that there is no need to protect the community from him. This is a case in which the public hearing, the period spent in custody and the imposition of the sentence to be imposed will make Mr Mathers accountable for his actions, both in terms of consequences to the deceased and to the community. 85On the issue of motive, the evidence uniformly establishes that Mr Mathers and Ms Griffith were devoted to one another and that the only motivation in assisting Ms Griffith's bringing her life to an end was a selfless act borne out of the love the offender held for her and what the offender understood to be in accordance with the deceased's express wishes. There is no evidence that his voluntary and intentional acts were motivated by any other factors. 86I take into account that Mr Mathers' decision to assist Ms Griffith in bringing her life to an end was one made within a short time and driven by the circumstances to which I have referred. There was no long-term planning involved. There was no evidence of preparation by him. 87The circumstances associated with Ms Griffith's death were such that the offender had the option of maintaining his silence or of volunteering, by way of admissions, his role in the events leading to her death. Mr Mathers chose the latter. For that he must be commended. Had he not done so, it is highly unlikely that his role or participation in the events would have been brought to the attention of the relevant authorities. 88It is in accordance with sentencing principle that where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence: R v Ellis (1986) NSWLR 603 per Street CJ at 604. See also Ryan v R (2001) 206 CLR 267 and AB v R (1999) 198 CLR 111 at 126. 89In addition, it is also accepted that leniency is to be extended where the confession of guilt is in the form of a plea of guilty. 90The fact that the offender did voluntarily reveal his involvement has, I believe, an added significance beyond the admissions which were likely to lead to a criminal charge being preferred against him. His voluntary disclosures, in my assessment, at least indirectly provide a high level of corroboration of the truthfulness his account as to the circumstances preceding Ms Griffith's death and as to his motive and state of mind generally. 91Ten references were tendered at the sentence hearing. I have read each one of them and they speak eloquently of Mr Mathers and of his commendable personal qualities. 92It was submitted on behalf Mr Mathers that the objective criminality of the offence is at the lower end of the scale for manslaughter. I have earlier indicated that that submission accords with my own assessment. The maximum penalty for such an offence is 25 years imprisonment: s.24, Crimes Act . However, it is well recognised that there are different categories of manslaughter - some involving the requisite intent for murder and others not. 93The Crown referred to the observations made in R v Dally (2000) 115 A Crim R 582 at [64]:- "It is not the variety of manslaughter but the facts which determine the objective gravity of the offence. Neither variety (in that case, provocation or unlawful dangerous act) is inherently more serious than the other." 94Accordingly, there is a uniform line of authority which accepts that manslaughter is an offence for which there is a truly wide range of culpability and, accordingly, there exists an extremely wide range of appropriate sentences. 95By reason of the variety of circumstances that may arise, there is no precedent case or sentence which will determine the sentence to be imposed in a case such as the present. That said, I have had regard to the sentencing remarks to which I have been referred by counsel in their submissions. 96In sentencing, it is necessary that account be taken of the specific purposes for which a Court may impose a sentence on an offender as set out in s.3A of the Crimes (Sentencing Procedure) Act . In addition, the Court is to have regard to the relevant aggravating and mitigating and other factors referred to in the provisions of s.21A of the Crimes (Sentencing Procedure) Act . 97Mr Mathers' history, situation and circumstances of his offending means that three of the principal purposes of sentencing have no part to play in the determination of the sentence to be imposed. There is no need for specific deterrence. There is no need to protect the community from him and no need for rehabilitation or any tendency towards criminal or other anti-social behaviour. 98In those circumstances, there remains considerations of general deterrence and retribution. In a case such as the present, one can be confident that few persons in the position that Mr Mathers was in prior to an offence concern themselves with what a court is likely to do if they fail. 99However, because manslaughter remains a serious offence, it cannot be said that general deterrence has no part, as a general proposition, to play in the sentencing of offenders who come within the ambit of the section. Accordingly, it is a matter to which I give due weight. 100The principle of general deterrence, though relevant and important in this case, is, however, modified by the fact that, at the time of the relevant acts, Mr Mathers suffered from the depressive illness diagnosed by Dr Nielssen and Dr Samuels. 101The question of retribution, in a case such as the present, is tied up with the concept of the community's entitlement to feel that justice has been done, particularly given the sanctity of human life. That said, however, it is difficult to see a community view in a case such as the present which would emphasise retribution as being a matter that would warrant a substantial term of imprisonment. 102The various sentencing options available are determined by the relevant legislative provisions. These include, in the case of an offender who is sentenced to imprisonment for not more than 2 years, the making of an intensive correction order or an order suspending the sentence. 103In his oral submissions, Mr Bellanto proposed that a bond would be well within the sentencing discretion. The Court certainly has the power under s.9 of the Crimes (Sentencing Procedure) Act to make an order directing an offender to enter into a good behaviour bond for a specified term instead of imposing a sentence of imprisonment. 104It was the Crown submission that, whilst a term of imprisonment should be imposed in order to express general deterrence and denunciation of the crime of manslaughter, the sentence should be fully suspended in order to reflect the tragic subjective features of the case. 105In that respect, the Crown drew attention to the provisions of s.12 of the Crimes (Sentencing Procedure) Act concerned with suspended sentences. That section provides that a Court may impose a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order, inter alia, suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the Court may specify in the order and, secondly, directing that the offender be released from custody on condition that he or she enters into a good behaviour bond for a term not exceeding the term of the sentence. 106It is well accepted that there are a number of steps involved in the imposition of a term of imprisonment such as a suspended sentence. They are discussed in R v Zamagias [2002] NSWCCA 17; Douar v R (2005) 159 A Crim R 154; R v Assaad [2009] NSWCCA 182. 107In all the circumstances of the present case, including Mr Mathers' age and the circumstances of his offending, I have determined for the reason identified by the Crown that the appropriate sentence is a term of imprisonment. However, this is a case in which a sentence of full-time custody is not called for. The sentence should be suspended. In so concluding, I have also had regard to the matters to which I have referred and the period of time that Mr Mathers has spent in custody. 108In determining the commencement date of the sentence to be imposed, I will backdate the sentence to commence on 8 April 2011 in order to allow for the period of 20 days that Mr Mathers spent in custody. 109David Scott Mathers, I sentence you to imprisonment for a term of 2 years. In order to allow for the period of 20 days that you have already served in custody, such sentence is taken to have commenced on 8 April 2011 and to expire on 7 April 2013. I suspend execution of the sentence as from today and direct that you be released from custody on condition that you enter into a bond for the operative remaining period of the 2 year sentence. 110The bond will contain the following conditions:- (1) That you appear before the Court, if called on to do so, at any time during the term of the bond. (2) That you be of good behaviour. (3) That you inform the Registrar of this Court of any change in your residential address.

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: 28 April 2011