R v Maxwell [2003] VSC 278

5. In November 1982, you were married at Wollongong, New South Wales, and, in October of the following year, the only child of your marriage, Daniel, was born. In 1989, the family moved to Melbourne leasing a residence in Peel Street, Kew. In September 1992, you purchased a block of land in Bruce Street, Silverleaves, on Phillip Island and subsequently kept a caravan there.

8. During this period you established a business which involved the maintenance of school buildings. Your wife was responsible for most of the business arrangements and the bookkeeping. In addition, she operated a tutorial service employing a large number of tutors. Your relationship appears to have been a harmonious one.

11. Unfortunately, in 1994 your wife (whom I will refer to from time to time as Margaret) was diagnosed with cancer of the left breast. In the ensuing years she researched the disease and pursued a vigorous regime of alternative medicines. She conducted a campaign not only to find the causes of her own cancer, but to cure herself of it, and, in doing so, to provide guidance and inspiration for others.

14. Mrs Maxwell emerges from the statements of her friends and the doctors she consulted as a strong-willed and single-minded person. It would be fair to say that she was the dominant partner in your marriage. She was also a private person who was very concerned about being in control of her own destiny. You emerge as a person forever prepared to support your wife in her initiatives and to provide whatever assistance she required. One family friend spoke of your absolute love for her.

17. The material discloses that Professor Avni Sali, a specialist surgeon, advised your wife in December 1998, and throughout 1999, of the need for her to have surgery. She indicated her preference to try natural therapies. These apparently involved dietary and herbal measures. It was not until November 2001 that Dr Ruth Gawler, a general practitioner who had first seen Margaret in August of that year, convinced her of the necessity of a mastectomy.

20. One of Margaret's friends observed that she felt that she was, to some extent, "giving in" by agreeing to the surgery. It was, nevertheless, performed by Professor Sali in January 2002. He recommended ongoing treatment by way of hormonal therapy.

23. In the following months your wife received treatment for a cough. It gradually became worse and by June 2002 her GP, Dr Hymie Factor, noted chest pains. However, Margaret declined his advice to have a CT scan.

26. About this time her friends noticed a deterioration in her health, which included the increased coughing as well as weight loss. She informed her friend, Shari Alexander, that she felt she had failed in her challenge and, in August, she told another friend, Diane Minogue, that she had massive tumours and had only months to live. By this stage your wife had learnt that the cancer was inoperable. When you passed this information on to your friend, Graham Leitch, he observed you to be extremely distressed.

29. In early September, your wife went to stay in the caravan on Phillip Island. You were working and visiting her on a weekly basis. While there, she consulted a local GP, Dr Agnes Le-Kim, inquiring about palliative care services and seeking medication to ease her rib pain and distressing breathlessness.

32. On 13 September, your wife was visited by Diane Minogue. She was having digestive problems and was very depressed. She told Ms Minogue that she had given up and was planning to take her own life by ceasing to eat and drink. This was to occur in the following week. Your wife believed her death could be achieved in three days. As part of her plan, she had Ms Minogue drive her to the Phillip Island cemetery and physically assist her in walking around the area to select a gravesite.

35. During this time your wife received several visits from district nurses including a Ms Margaret Spence in relation to palliative care. In answer to the nurses' questions about who would ultimately care for her, Margaret indicated that you would wish to come down and do so.

38. On visits made to the caravan on 23 and 26 September, the district nurse observed that you and your son Daniel were present and that Mrs Maxwell appeared to be in better spirits. It was on the latter occasion that you persuaded your wife to desist from the process of starvation; however, she made you promise to assist her to end her life if her health did not improve. As a result of your entreaties, she returned with you to Peel Street, Kew.

41. Prior to this time you had sought nutritional supplements from the U.S.A., which you hoped would save the life of your wife. Indeed, on a number of occasions, you had sought alternative remedies to assist her both from within Australia and overseas.

44. On 1 October 2002, you both visited a GP, Dr Peter Wexler. Margaret was having problems with insomnia and, whilst asserting that she preferred a natural approach to treatment, accepted a prescription for temazepam tablets. Although Margaret's condition was described as terminal, a suggested reference to the local palliative care service was declined by her.

47. In early October, your friends, Graham and Ruth Leitch, visited. They noticed that Margaret was coughing a lot and this prevented her from talking. You were described as being very loving and concerned and trying to do things for her. On a return visit by the couple a week later, Margaret was observed to be distressed and, in Graham Leitch's words, "looked as if she had aged 20 years and lost about 20 pounds in weight".

50. On 7 October, you had rung District Nurse Spence, concerned about your wife's breathlessness. The use of an oxygen concentrator was advised. Shortly after this occasion, your wife again told you that she could no longer go on. However, once more you persuaded her to continue living, reiterating your promise to assist her if all treatment failed and you could not reverse her condition.

53. During these final weeks, you sought out further herbal remedies. For most of the time you were occupied in washing, dressing and feeding Margaret and ensuring that she slept in a position that avoided her choking. Indeed, she could do little without your assistance. She experienced frequent bouts of vomiting and her violent coughing resulted in sleepness nights for you both. She was steadily losing weight.

56. There can be no doubt that this was a terrible time for you. Not only did you witness your wife's physical suffering from the ravages of cancer, but also the devastating psychological effect upon her of the failure of the campaign she had waged against that illness. Nonetheless, you persevered. On 18 October, you rang a Chinese medical practitioner, Ms Helen Wu, inquiring whether herbal medicine could provide a cure for cancer. The doctor indicated that this was not likely but that it could reduce symptoms and enhance the immune system. Your wife being too weak to attend Ms Wu, you collected a herbal mixture from her.

59. Additionally, on the following morning, 19 October, you visited a local health shop in search of an easily digestible formulation capable of providing sufficient nutrition to reverse Margaret's weight loss. You were referred to the Epworth pharmacy and you returned home to inform your wife of your intention to go there. It was at this point that she told you that she had had enough and asked you to honour the promise that you had made to her. Perhaps significantly, this was the day after your son's birthday.

62. Having earlier discussed voluntary euthanasia with friends, Margaret had been provided by them with a book entitled "Final Exit". It was sub-entitled "The Practicalities of Self-Deliverance and Assisted Suicide for the Dying". The method your wife chose to employ in order to bring about her death is set out in that book. It involved the use of medication to effectively drug the person wishing to commit suicide and the use of an inert gas such as helium. The helium was to be fed by a tube into a plastic bag placed over the person's head and fastened so as to prevent the escape of the gas. The effect of the helium was to displace oxygen from the atmosphere thus depriving the body cells of the oxygen essential to life. The utilisation of the medication was to ensure that the ensuing death by asphyxiation was a peaceful one.

65. You told the police that when Margaret read about the technique and realised that she would be incapable of performing the necessary acts alone, she burst into tears and stated that she would have to hold you to your promise to help.

68. In accordance with that promise, you set out later in the morning of 19 October to procure the necessary items of equipment. You hired a bottle of helium gas from a firm in Preston, procured a plastic bag from a local supermarket, and obtained a length of hose from a hardware store. Margaret asked you to gather together her remaining pain relief, sleeping and anti-inflammatory tablets. This you did.

71. During that morning, your wife, who was quite rational, finalised documentation to be sent to the landlord of the Kew premises.

74. In a comprehensive and frank record of interview, you described to the investigating police what then occurred. It is not disputed by the Crown that it is an accurate account.

77. About 1.00 p.m. You carried your wife to your van, laid her on the back seat and set out for the caravan at Phillip Island - the location that she had chosen for her death. You arrived around 3.00 p.m. And carried your wife into the caravan. At her request you crushed the tablets and dissolved them in some water. Margaret drank the mixture and then asked you to put her into bed. You put on a CD which you had both chosen and, having made her comfortable, you sat with her. After a couple of minutes Margaret fell asleep. She was always terrified that if her attempt to end her life failed, she might be rendered comatose, so she had made you promise to follow the procedures detailed in the book "Final Exit". You did so, placing the bag over her head and shoulders, securing it with a piece of sash and introducing the tube into the bag. You turned the helium on slowly and your wife went into a deeper sleep before apparently ceasing to breathe. You left the gas running for some time as she had instructed, before checking her pulse and breathing and ascertaining that she had in fact died. In the record of interview you told the police:

80. "Her very last wish was that she wanted to lay down in nice clean pyjamas in a nice clean bed and cuddle up under the doona. So I did that and I stayed with her for a little while longer and I packed everything away and then the idea was that I would ring the funeral home and they were supposed to ring the doctor that Margaret was under down here and the death certificate would be written and then I could bury her. Nobody was supposed to know about it and then my idea was that when I got back home and Daniel was finished with his exams, I would write a full report on it and hand it to the senior officer at Kew police station and they could do what they wanted then. It wasn't going to matter. Daniel would have finished his exams in a couple of weeks and Margaret would be at peace."

83. The reference to Daniel's exams related to the completion of his VCE.

86. You rang the funeral director, Paul Beck, on the number Margaret had given you. Mr Beck described you as extremely distressed and at times having difficulty in making yourself understood. You were subsequently told by him that because the nominating treating doctor could not be contacted, the normal procedure of informing the police would be initiated. He described you as being unperturbed at the police involvement. In fact, you laid down beside your wife on the bed until the police arrived. Thereafter, you cooperated fully with them.

89. At the time of her death, Margaret Maxwell was aged 59. The post-mortem findings confirmed that she was suffering from widespread cancer in her chest wall, lymph nodes, both lungs, ribs, lumbar spine and pituitary gland. She weighed only 40 kilograms. The cause of death was given by the pathologist, Dr Matthew Lynch, as plastic bag asphyxia, but whether this was occasioned by the inadvertent obstruction of the airways by the bag or the effect of the helium gas cannot now be determined. Certainly there is nothing in Dr Lynch's findings which contradicts your account of events. Similarly, the presence of the types of medication you described as mixing were revealed upon analysis of the deceased's blood.

92. In the case of R v. Hood [2002] VSC 123; 130 (2002) A.Crim.R. 473, I was faced with the task of passing sentence for the offence to which you have pleaded guilty. On that occasion I remarked:

"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. 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. 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."

96. There is no doubt that your situation places you at the latter end of the spectrum. I accept that you loved your wife intensely. You were desperately hopeful that a cure for her illness could be found. To this end you dissuaded her on two occasions from her desire to end her life and attempted to locate yet more medication that might offer her a cure. However, you were faced with the spectacle of her ever-increasing suffering and ultimately, when faced with her clearly expressed wish to die, you felt obliged to assist and support her, despite your own misgivings and distress.

99. In fact, you are not a supporter of euthanasia; you regard what you did as wrong and you have experienced considerable remorse. So much is clear from the report of the clinical psychologist, Dr Peter Cook, which was tendered in the course of your plea. He describes you as "a distressed and confused man who is struggling to come to terms with what he has done ... " he also ventures the view that you are currently experiencing major depressive symptoms requiring ongoing treatment.

102. The circumstances surrounding your wife's death and your reaction to them are all matters I take into account in determining the sentence to be imposed. None of us would wish to face the dilemma with which you were confronted.

105. There are also matters personal to you which are relevant in deciding an appropriate sentence. You are 56 years of age. You were raised in the Wollongong area together with your brother and sister. You were educated to Year 9 level and thereafter completed an apprenticeship as a baker. After twenty years in that occupation, you apparently developed an allergy to flour and had to give it up. Thereafter, you spent 4-and-a-half years as a safety officer for BHP before setting up a coach tour business in conjunction with your wife. This ultimately proved unsuccessful and, for a period of time, you worked in the building industry as a painter and sandblaster. After moving to Melbourne in 1989, you undertook cleaning, gardening and maintenance work for local government, before setting up the school maintenance business to which I have already referred.

108. You had been married for almost twenty years at the time of your wife's death. You continued to look after your son Daniel, who is now 19 years of age. The material before this court indicates that he is highly supportive of you.

114. In summary, you have a history of hard work and you have been a good family man. Up until this incident you have lived an unblemished life and there is no reason to believe that you will ever again transgress the law. Accordingly, no weight needs to be given to specific deterrence.

117. I take into account in your favour your plea of guilty, which is a further illustration of your expressed remorse.

120. Further, the trauma of having initially been charged with the murder of your wife, together with the period of 26 days you have spent in custody, have constituted a measure of punishment for you.

123. Since the law continues to regard what you did as an offence, the denunciation of it and the deterrence of others remain elements of any sentence to be imposed. However, I do not believe that thoughtful members of the community, knowing all the facts relating to you personally and the unique circumstances of this tragic case, would regard your immediate imprisonment as necessary. In my view, this is a case where justice may be tempered with mercy. In the end, I see no reason to distinguish this matter from the case of Hood.

126. Accordingly, I impose a sentence of imprisonment for a period of eighteen months. That period is to be wholly suspended.

129. I must also inform you that during that time you must not commit another offence punishable by imprisonment or you may be required to serve some or all of the suspended sentence.

132. I hope you will be able to put this sad episode behind you, Mr Maxwell, and, with the help of your son, to reconstruct your life.