R v Nielsen [2012] QSC 29

Supreme Court of Queensland|2012-02-16|Before: Dalton J

this matter can be ignored. It is just not possible in any

setting to ignore such a conflict of interest. It is also not

irrelevant that at the time you had little in the way of

credit card debt, so that your net position was that you were

In the police interviews you make statements about the will

and your interest under it. You make statements indicating a

willingness to give Mr Ward's brother and sister money and

statements indicating that if there was any reasonable

challenge to your being the beneficiary under the will, you

would stand aside and not contest it. You make statements, in

effect, to the effect that you're not interested in the money,

but there is no evidence been put before me on sentence that

you have in fact disclaimed interest under the will.

As I said to the jury in summing-up, this case is not about

general principles or moral views about euthanasia. It is

about those facts and the application of the law to them.

However, in considering the criminality of the conduct in this

case, I have found it of some assistance to consider the type

of theoretical legal models that are proposed, for example,

for medically-assisted suicide, and the laws in countries

where medically assisted suicide is possible. In such

countries and under such models, there are always provisions

to ensure that the power to assist a person wishing to take

their own life is not misused. There is always provision for

independent medical examination by more than one doctor, and

there would certainly never be a situation allowed by such a

model or such a law, where the decision was made by someone

with a financial interest in the decision. There could never

be a situation under such a model where suicide was assisted

in the case of a person who had only just begun to suffer from

illness, where that illness had not been diagnosed, where

there was no useful information about its duration, prognosis

As I say, this case is about the facts that have been proved

on the evidence and the application of the law in Queensland,

but in a case such as this where a wide range of facts fall

within a broad definition of a crime, I do find that reference

to models of medically-assisted suicide as helpful in

measuring the criminality of the offence you committed.

Suicide is not illegal. Frank Ward had a right to do whatever

he wished, according to the dictates of his own mind on

grounds that appealed to him, and didn't have to satisfy

anybody else. And, as you said in your record of interview

with the police, at least at one stage, he had between June

2007 and June 2009, opportunity to assist himself in this

regard, he had opportunity himself to obtain a drug which

Of course, it is relevant in considering your case that

Mr Ward had a clear intention to take his own life, but that

matter is, indeed comprehended by the nature of the offence

for which I am sentencing you; that is, it is assisting a

suicide. Were there no intent to suicide, the offence would

You were 48 at the time of the offence. You have no prior

criminal history. You had your share of vicissitudes of life

in childhood. Your mother died of a stroke at age 12. Your

brother suicided when you were in your late 20s, shortly

You did well at school and you have apparently done well at

university. Your middle years, after leaving school, are

largely unaccounted for in the material put before me. Your

brother says that after school, "Merin emerged without a clear

path to follow." It seems that you studied at university as a

mature age student and you have worked as a teacher. You are

still studying at university, a PhD in philosophy. I have

before me references from two university colleagues who

Eighteen testimonials to your character were tendered by your

Counsel. The people who have given the testimonials

certainly speak highly of you. I notice that seven of the

testimonials are from your family, and I include in that

definition your de facto spouse and her ex-husband and son.

Apart from family members, only one - Wynne - has known you

for more than ten years. Four of the references proceed on a

wrong factual basis as to the facts of the matter before me -

Botic, second last paragraph; Ovchinnikova, second last

paragraph (as to intention); Judd, second last paragraph; and

Breen Schipke, page 1 last paragraph, page 2 first paragraph.

I don't know how these people came to proceed on the

information they had, but I do think it is worthy of note.

Also worthy of note is the fact that during the trial we

listened to around seven hours of recorded interview with the

police. As I said to your counsel a couple of times during

this matter, if you bothered to count the individual lies,

there would be hundreds. There is elaborate, elaborate,

dishonesty over a considerable period of time demonstrated in

these interviews, and I remark on the easy facility with which

you lie in the interviews. And I note that many of the

references tendered on your behalf mention how honest you are.

It is difficult to reconcile with, as I say, the seven hours

The other thing that is noteworthy from those interviews is

your attitude. At one point you express the hope that you

don't seem too flippant about matters. Rather than use

adjectives to describe the attitude you display, I would

probably see it as more relevant to say that the attitude

contains no indication that you understood the reality or

The relevance of that, I suppose, is threefold. One is it is

very difficult for me to believe factual assertions or factual

submissions made by your counsel now based on self-serving

statements in those records of interviews. One, for example,

was that during the interviews you claimed you felt pressure

to assist Mr Ward in June 2009 because he told you if you

didn't help him get the drug to do it in what you describe as

an aesthetic manner, he would use a fish knife to slit his own

throat. Having watched you say that in the record of

interview a number of different ways, a number of different

times, and in the context of the other untruths in those

interviews, I can't accept that, even on a balance of

The second matter that the dishonesty is relevant to, is

remorse. It indicates a lack of remorse. Assisting suicide

is perhaps an odd crime in relation to the factor of remorse

because many, in fact most, people in the comparable sentences

that have been put before me are not remorseful, because they

have acted out of love and compassion. Having said that,

most, after they have acted, have notified the police,

co-operated fully with police, and told the truth about what

motives are so clear. And that sort of lack of remorse I

don't think could be taken into account on a sentence for this

charge. But the dishonesty exhibited over a prolonged period

of time in the records of interview does, I think, indicate a

The third relevance of the dishonesty is that it is not alone.

There is also evidence in the records of interview that you

had been dishonest in what you told the deceased's relatives

about the details of his death. And the dishonesty with the

police and the dishonesty with the relatives does, I think,

obscure the motives with which you acted, particularly in

circumstances where you were sole beneficiary of the will, and

particularly in a case where your motives are less clear and

less understandable than a case such as The Queen v. Maxwell,

which I'll come to shortly, where a spouse or a child kills

their spouse or parent in circumstances where they have been a

long-term carer with a clear compassionate and altruistic

motive for someone in a hopeless and extreme medical

Both the Crown and your counsel are agreed that you ought to

receive three years' imprisonment as a head sentence.

The difficulty in sentencing you comes to the time, if any,

which you ought to serve. In relation to that question, I

will discuss some comparative cases. The first one is The

Queen v. Maxwell [2003] VSC 278. That was a case where

Mr Maxwell killed his wife who had suffered for years from

very painful, very debilitating cancer. She weighed 40

kilograms at the time of her death. She couldn't walk, he had

to carry her to the place she agreed she would like to die.

He'd cared for her himself through this time, and the Court

could clearly see love and compassion as the motives for the

commission of a crime, and could clearly see that Mr Maxwell,

in caring for his wife, had been under great stress and a

prolonged burden every day. He was sentenced to 18 months

wholly suspended. That was in Victoria where the maximum

penalty for assisting suicide is five years. Here, the

maximum penalty for assisting suicide is life imprisonment.

Mr Maxwell co-operated fully with the police and gave an early

indication of a plea. And it is well known that the Courts

offer significant discount on sentences for an early plea,

both because an early plea indicates remorse, and because it

saves costs. So in considering all these comparative

sentences in fact, I bear in mind that the Court had before

it a case where the defendant had indicated an early plea and

was able to discount accordingly. The reverse position, of

course, is not true, and you shouldn't think that because you

did not plead guilty but ran to trial, that is taken against

you. It is simply that in comparing these other sentences

where there was an early plea, one has to understand that that

is a significant mitigating factor which discounts the

The same sentence, that is 18 months wholly suspended, was

imposed in a case of Hood [2002] VSC 123. The factual basis

as to motive and burden of care were less compelling than in

Maxwell, although the offender was very young. The other

factors do apply, though. It was another Victorian case where

the maximum penalty is five years and there was significant

The case of Hood is often quoted in cases on assisting suicide

"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

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 of the importance of human life and its

society. The concept is often encapsulated in the phrase

'the sanctity of human life'. The 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

The degree of moral blame attributed 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

I think those principles are renowned as encapsulating much of

what a sentencing Judge must consider in relation to a case

such as yours. Your counsel referred me to The Queen v.

Pryor. That is a decision of Hill AJ on 19 December 2005.

That was not an assisted suicide case. It was described by

the Judge as a mercy killing case. A woman killed her elderly

demented mother for whom she was caring, and who the evidence

showed was very difficult to care for. The evidence - and it

At a glance

Court

Decision date

Before

Source

Judgment (250 paragraphs)

Parties

Cases Cited (2)