R v NICOL

Supreme Court of NSW|2005-05-27|Before: Hulme J, Mr J

DECISION : Ronald Nicol, I sentence you to imprisonment for a non-parole period of 1 year, and a balance of term also of 1 year. I suspend execution of the sentence for a period of 2 years and direct that you be released from custody on condition that you enter a good behaviour bond for a period of 2 years.; I order that the Bond I have referred to be entered into at the Court Registry.

Crown: Mr J Keily SC COUNSEL : Prisoner: Ms L Flannery

Crown: S Kavanagh SOLICITORS : Prisoner: SE O'Connor

1 - IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

REGINA v Ronald NICOL REMARKS ON SENTENCE

1 HULME J: The Prisoner is 86 years old. He is substantially deaf. On 9 April 2004 he killed his wife, to whom he had been married for 63 years. He was originally charged with murder but an indictment was presented in this Court charging him with manslaughter. To that charge he has pleaded guilty. The basis for charge is that, in the terms of s23A of the Crimes Act, at the time of the events leading to the deceased's death the Prisoner's "capacity to understand events, or to judge whether (his) actions were right or wrong or to control himself … was substantially impaired by an abnormality of mind arising from an underlying condition, and the impairment was so substantial as to warrant liability for murder being reduced to manslaughter". There is a deal of psychiatric evidence supporting that conclusion and, in the circumstances of this case, I approach the matter upon the basis indicated. 2 There is a wealth of evidence, and none to the contrary, that right up until Mrs Nicol's death the marriage was happy and both persons were devoted to one another. There is equally no doubt that the ravages to health which old age commonly inflicts had affected them both. In consequence of problems with circulation, Mrs Nicol had in late 1999 the front half of her foot amputated. Infection and gangrene occurred and one leg was amputated just above the knee. She had difficulty in adjusting to a prosthetic limb, difficulties which never seemed to have been fully resolved. In the months before her death she had a number of bad falls causing substantial bruising to her face and body. There seem to have been other problems for she took a deal of medication.

3 In the case of the Prisoner, some time after the mid 1990s, both of his children became so concerned about his driving that he was persuaded to give it up. In 2003 he began to experience fainting attacks and was later hospitalised more than once. There was a lessening of his ability or desire to mow the garden and do other tasks. In early 2004 he had a pacemaker implanted. 4 Their problems caused at least some frustration to both, inter alia in the case of the Prisoner because he was unable to hear clearly and for Mrs Nicol in her dependence upon the Prisoner. Their general practitioner observed that on most occasions he saw the Prisoner, the latter was concerned about his physical capabilities. There was also evidence that, as occurs with most people, the Prisoner exhibited some fluctuation in mood. I need not detail it but witnesses whose evidence bears on this include friends Ms Raskovic and Mr Maclean and home care workers, Ms Perry and Ms Papallo, and an employee of the local chemist. There is a deal of evidence that at the time of, and prior to, his offence the Prisoner was depressed. The matter is put at its highest in reports of Dr Westmore and Dr Lucas tendered on the Prisoner's behalf but Dr Allnutt, whose report was tendered by the Crown, agrees. However, it is to be noted that the signs of this prior to the deceased's death were not such as to cause anyone to notice that the Prisoner had any major problems in this regard and, as between the views of Dr Allnutt and those who place the degree of depression higher, I prefer the views of Dr Allnutt that the degree of depression was not more than mild or moderate. I also regard the other factors which led to the abnormality of mind which reduced the Prisoner's offence to manslaughter as of the degree referred to in Dr Allnutt's report. There is too much evidence of normality, and so little of abnormality, in the Prisoner's conduct prior to the offence to conclude that his condition was any worse than Dr Allnutt accepted. This conclusion is borne out greatly by what strikes me as substantial rationality in the Prisoner's account of events, given in the few days after 9 April while in hospital. 5 Despite their health problems, the Prisoner and his wife were not inactive. Mrs Nicol would cook every night and the Prisoner did a great deal to care for her. They had some help in the home cleaning for an hour and a half or so every second Monday and while the Prisoner was hospitalised someone attended to help Mrs Nicol shower 3 times a week. The Prisoner would get out of bed a number of times each night to help his wife to a commode. A Home-Care worker who visited the premises said that the Prisoner would always try to do as much as he could for his wife, even when the worker was there. 6 Arrangements had been made for some of their family to go to the home of Mr and Mrs Nicol for an Easter dinner. On 8 April Mrs Eddy was informed by her parents they had been to the East Gardens shopping centre, bought Easter eggs and a leg of ham and that Mrs Nicol was going to make a lemon and apple pie. The Prisoner asked his daughter to bring some wine. Mrs Eddy said that both parents sounded like they were in high spirits. Her brother who also spoke to his parents that day gave a similar account. Ms Perry said that on the Wednesday beforehand Mrs Nicol had been excited at the prospect of the gathering. 7 One matter which must be mentioned is that some weeks prior to 9 April 2004 their children raised with the Prisoner and/or his wife the possibility of their moving to hostel and retirement accommodation. Mr Nicol junior said that while the Prisoner was in hospital receiving his pacemaker, he broached with his mother the topic of a nursing home and observed that his mother then became upset. Mrs Eddy, their daughter said that when she first raised it, they thought it a good idea but when, on 31 March 2004, there was further discussion it became, in her words "heated" though not an argument. At that time both her parents indicated that their general practitioner had recommended they stay in their own home at least at that stage. Mrs Eddy said that when the Prisoner made a decision he stuck to it and there was no later discussion about the nursing home. 8 Interestingly, the general practitioner who made a statement to the police on 15 April 2004 said he could recall no discussions concerning admission into a nursing home. He had seen the two on 26 March 2004 and observed both of them to be in a satisfactory state. 9 A neighbour, Mrs Figert corroborated the children's account of their parents' reaction to the topic of a nursing home. Further indication of the Prisoner's reaction to the topic is also afforded by evidence from one of the nurses who attended the Prisoner on the night of 9 April who recorded him saying a couple of times during the night "we didn't want to go to a nursing home". 10 In the post-mortem report the cause of the deceased's death is stated to be, "Combined effects of multiple blunt force injuries and plastic bag asphyxia". In hospital in the days following his attack the Prisoner gave accounts of what had occurred. Some time after midday on 10 April the Prisoner was seen by a Dr Fox who asked the Prisoner what had happened. Dr Fox's account of what was said included the following:- "His wife told him 2 weeks ago "I want you to put me out of my misery". He said this had occurred after an argument between his wife and his daughter about the latter's desire that both of them move into a retirement village. He believed that both his children had wanted them to move because they weren't coping at home. He said his wife was unhappy because of her inability." 11 According to Dr Fox the Prisoner said that when his wife first suggested he put her out of her misery, "I thought 'no'' at first but then I didn't know what to think." He eventually agreed to kill her and also kill himself. "I always said that if anything happened I didn't want to be a burden on the kids." The Prisoner also said "she didn't know when we would do it." but they had decided 2 weeks ago that life was not worth living.

12 Dr Fox also said that the Prisoner had told him that he took a long metal rod that had been in their hallway and took it into the bedroom. The Prisoner said "I thought that if I'd popped her on the head once she would go." The Prisoner said that after he hit her over the head once, she didn't die and so he hit her again. After hitting her several times he felt that "it was such a mess that the right thing to do was to finish it off". The Prisoner said that his wife may have said "stop" at one stage but he felt he needed to finish the job and later took 15 sleep tablets and 8 Panadeine Forte tablets with the intention of killing himself. 13 Dr Fox said that at the time of his speaking to the Prisoner his affect was mildly restricted and seemed incongruously unaffected by the circumstances of the previous evening but oriented in time. 14 According to a police officer, Constable Barone, who was present at the time, the conversation was to the following effect:- The Prisoner: A few days ago my wife Vera had an argument with my daughter and was fed up with all the problems she had been having. She said to me the other day I want to kill myself. Dr Fox: Did your wife talk about how she was going to kill herself? The Prisoner: Yes, she said that she didn't want to take pills because she wanted to make sure it would do the job. So I thought that I would help her. Dr Fox: How did you help her? The Prisoner: I wanted to make it quick for her so I grabbed a metal bar that I keep inside the house. It's about 1 ½ thick and about 90cm long. I thought to myself if I hit her with the bar in the back of the head it would be quicker for her. So I picked up the bar and I hit Vera in the back of the head twice, after I had hit her the second time, Vera said to me, stop, stop. I then saw all the blood on the back of her head. Once I saw the blood I grabbed about 15 Panadeine Forte and another type of different pills and I took them all. I also cut my left wrist. I did this because I said to Vera that I would also finish myself off. Not long after that I rang 000 to come and help me because I didn't really want this. Dr Fox: How do you feel about what has happened. The Prisoner: You have no idea how I feel. I'm very upset and I still want … to kill myself. 15 Professor Brodarty said that on 13 April the Prisoner had told him that he had killed his wife in response to repeated requests she had made for some weeks to the effect that she wanted to die. To a nursing sister to whom he made similar statements the Prisoner also said that originally he had told his wife he could not help her and then later changed his mind. 16 Later when asked about the above events the Prisoner apparently could not remember or gave accounts which differed from those I have just set out. However, and even taking account of the stresses which the Prisoner must have been subject to at the time of speaking to Dr Fox and Professor Brodarty, and sister Campbell I am satisfied that I should regard what he said at that time as an accurate version of events. It is consistent with the presence of the iron bar which the police found in the bedroom and with the number of wounds to the deceased's head which were found during the post-mortem. The plastic bag which was referred to in the post-mortem report was also mentioned, though not with any detail, when the Prisoner spoke to one of the nurses.

17 I should record also that Mrs Eddy asserted that her mother would have had no intention of ending her own life. She loved seeing her grandchildren and a third child was due on about 17 April. Mrs Eddy said that her mother would often say "I'll go when my times' up, but it's not up yet." 18 Mrs Eddy also recounted one conversation with her mother in which the latter said that the Prisoner had suggested to his wife that they should take their own lives but her mother said she would never do that. On the other hand the Prisoner's daughter in law recounted one incident when the deceased had fallen out of bed and stated she was not going to be put in a home and that she had lived long enough and wanted to die. Mrs Nicol (junior) went on to say that 5 minutes later the deceased was OK and seemed to have been just voicing frustrations. 19 There was other evidence to the effect that the Prisoner and Mrs Nicol had indicated that they never wanted to be separated. 20 Despite the stresses the Prisoner must undoubtedly have been under at the time he gave the accounts to which I have referred, the evidence satisfies me beyond reasonable doubt that the Prisoner's attack on his wife was premeditated and with the intent to kill her and them himself. 21 I turn to other matters. The Prisoner has no criminal record, even for traffic matters. Until his retirement he worked for some 4 decades with General Motors Holden, achieving a position of some responsibility. He has the 2 children to whom I have referred, Mrs Eddy having for some years been substantially disabled by multiple sclerosis. But for the present offence he has led a blameless life. 22 I should recognise expressly that I have considered the terms of s3A and the requirements of s21A of the Crimes (Sentencing Procedure) Act although I do not regard it as necessary to extend these reasons by proceeding through the latter sections detailed provisions, or those which apply here, seriatim. I will mention only one, that in the circumstances as I am aware of them, the Prisoner has pleaded, or at least indicated his intention to plead, guilty to manslaughter at the first available opportunity and is entitled to the appropriate high credit for that. 23 The Prisoner's history, situation and the circumstances of his offending mean that three of the principal purposes of sentencing have no part to play in the determination of what I should do. There is no need for specific deterrence, no need to protect the community from him and no need for rehabilitation from any tendency towards criminal or other anti-social behaviour. Nothing I do could aid these common aspects of sentencing. 24 There remain however considerations of general deterrence and retribution. There is considerable scope for doubt as to how significant the former of these is in a situation such as this. One can be confident that few persons in the position of the Prisoner prior to his offence concern themselves with what a Court is likely to do if they fail. 25 I am also mindful of the principle that "in the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor which should be given relatively less weight than in other cases because such an offender is not an appropriate medium for making an example to others." - R v Letteri (unreported CCA, 18 March 1992). 26 On the other hand, s23A has the effect of converting conduct that would otherwise be murder to manslaughter, not removing such conduct entirely from the criminal calendar and it cannot be said in that context that general deterrence has, as a general proposition, no part to play in the sentencing of offenders who come within the ambit of the section. I must give some weight to it. 27 Weight must also be given to the topic of retribution or, as I think is encompassed within that term, the community's entitlement to feel that justice has been done, particularly given the sanctity of human life. In that regard I need do no more than refer to R v Dawes [2004] NSWCCA 363 and the cases cited therein. 28 How those considerations are to be reflected in the sentence to be imposed is a far more difficult question. There can be no doubt that a full time custodial sentence on the Prisoner at his age and in his state of health would be likely to have a much, much greater impact than would a custodial sentence on a younger man. Dr Westmore and Professor Brodarty drew attention to difficulties that the Prisoner would face in a custodial setting. As was said in R v Burrell [2000] NSWCCA 262 at [27] "the realities of prison life are not overlooked in the sentencing discretion". 29 The Prisoner's age and health make periodic detention or community service practically impossible and both parties agreed that these were inappropriate. 30 On the other hand, the imposition of a bond or suspended sentence, in circumstances where one can predict with certainly that the risk of re-offending or other misbehaviour is zero, has about it elements of the proverbial slap on the wrist. 31 Yet undoubtedly some penalty is required. The Court cannot so deal with the Applicant that a message is sent to the community that old persons, even those suffering from an abnormality of mind and with an intention to kill themselves, can kill their partners with impunity. Given the Prisoner's situation, I do not regard any of the sentencing options available to me as satisfactory. Perhaps none could be devised that are. 32 Be that as it may, the best of the options available to me seems to be that urged by both parties, namely a sentence of imprisonment, suspended. 33 I am satisfied Mr Nicol that, your age and the fact that you have not previously been in custody amount to special circumstances and that I should vary the relativity of the non-parole and parole periods of the sentence. 34 Ronald Nicol, I sentence you to imprisonment for a non-parole period of 1 year, and a balance of term also of 1 year. I suspend execution of the sentence for a period of 2 years and direct that you be released from custody on condition that you enter a good behaviour bond for a period of 2 years. 35 I order that the Bond I have referred to be entered into at the Court Registry. **********

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