R v R F Richards

The Family Court Hearing 30 Mrs Richards had been less than happy with the solicitor who was appearing for her in the Family Court proceedings. The hearing, which would determine the issue of custody, was set down for the week beginning Monday 5 February 2001. On the Friday before that hearing, the solicitor for Mrs Richards withdrew. A replacement was found, Mr Rod Powe. Mr Powe was hampered, however, by not having access to the file. 31 On Monday 5 February 2001, Mr Powe sought an adjournment. Mr Mark Richards and Mr Tony Duff were each represented by a solicitor and barrister. The adjournment was refused. On Tuesday 6 February 2001, the report of Dr Wootton was disclosed to the parties. That report does not form part of the material before me. The Family Court, in the context of its proceedings, regarded the report as a confidential document. The parties were not provided with copies. Rather, they, and their advisors, were allowed to read the report at Court. 32 Mrs Richards read the report with disbelief. In the report, she was characterised as a person suffering from a serious psychiatric condition, requiring a further period in hospital of 12 months. Dr Wootton was of the opinion that she should take anti-psychotic medication. He recommended that custody of the children should be awarded to Mr Mark Richards for a trial period of six months. 33 Mrs Richards spoke to her solicitor, having read the report. She asked what hope she had of regaining custody at the end of the 12 months. According to the account she gave to psychiatrists, she was told, "Not good". 34 The case was adjourned until the following day, Wednesday 7 February 2001. Mrs Richards was to bring the children to Court. It was expected that they would then be handed over to her former husband. 35 Mrs Richards was entirely unprepared for this blow. She was in a state of panic. According to her mother, she cried hysterically. Once home, she discussed with her parents "clearing out". Her parents counselled her against that course. She recognised that it was not an option. She had no money. She accepted that she would be found. She also understood that, having been found, she may never see her children again.

The Offences 36 At some point that evening, Mrs Richards determined that the only solution for her and the children was escape to heaven, through death. The alternative, in her mind, was handing the children to someone whom she believed had sexually abused the children, and would do so again. She told Professor Quadrio this: "I had to save them. I sat and discussed it with Mahon. I know I had no right to ask him but I was pushed over the edge. I said to Mahon, 'we'll go to sleep'. He said 'does it hurt'. I said 'no'." 37 Mrs Richards now recognises how inappropriate and wrong it was to converse with Mahon in this way. In evidence before me, which I accept, she said this: (T64) "Q. ... would you think he was giving you permission to do what you did? A. No I didn't think he was giving me permission. I asked him. I was in a state of panic. When I asked him, I look back now, how can you ask a 10 year old child whether he wants to live or die. It is impossible. I had no right to ask him, no right whatsoever, he's a 10 year old child for God's sake. You have no idea of the state of my mind, the panic and desperation. You don't go round asking 10 year old kids whether they want to live or die." 38 At 2.00 am on 7 February 2001, Mrs Richards drove to remote bushland at Wyee, with her three children. She took with her a length of hose and a can of petrol. The can of petrol she described as "back up". She connected the hose to the car's exhaust, and by this means introduced carbon monoxide fumes into the cabin of the vehicle. She woke to find that Reily had died. She and the boys were alive. Mrs Richards gave the following description to Professor Quadrio of what she then did: (p 24) "'Then I woke up and Reily was the only one gone, so I thought I had to finish saving them. It was all about saving the kids.' She took the petrol and set light to it. It caught fire but the car didn't explode. Then she 'felt the heat and felt that I couldn't do it'. She picked up Reily's body and 'we ran'. The car exploded and blew up." 39 Mrs Richards and the two boys were given a lift to their home by a passing motorist. The police were called. Mrs Richards described to the police exactly what she had done. She held nothing back. 40 She was taken with Mahon and Braedy to the Gosford Hospital. The children were examined. They had no physical abnormality. They were treated for carbon monoxide poisoning with oxygen. They were discharged from hospital into the care of the Department of Community Services. 41 Mrs Richards was arrested. She remained in hospital for some days, being transferred to the gaol on 9 February 2001.

The Objective Seriousness of the Offences 42 Determining an appropriate sentence requires both an understanding of the objective seriousness of the offences committed, as well as the personal circumstances of the offender. There is, of course, nothing more precious than human life, and nothing more poignant than the loss of a young child. Manslaughter is the felonious taking of human life. Attempted murder is the attempt to take the life of another. In this case, the attempts, of course, involved two lives, both young children. 43 However, there are, as you would expect, degrees of culpability in which there are a number of variables. In The Queen v Blacklidge (unreported, CCA, 12 December 1995), Gleeson CJ said this: (at p4) "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." 44 The plea of guilty to manslaughter was entered upon the basis that Mrs Richards was, at the time, substantially impaired by an abnormality of mind. The Crown accepted that plea. That plea involves the partial defence which was formerly referred to as diminished responsibility. In the same case, the Chief Justice made this comment upon that partial defence: (p 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)." 45 The partial defence has application in the context of manslaughter (s23A Crimes Act 1900). It does not apply to the offences of attempted murder. Nonetheless, similar issues arise in the context of those offences in determining the objective criminality which they involve on the part of Mrs Richards. 46 It becomes important, therefore, to investigate the state of mind of Mrs Richards at the time she committed these offences. To what extent is it reasonable to attribute culpability or moral blameworthiness to her, given her state of mind?

The Psychiatric Opinions 47 The psychiatrists on this issue speak with one voice. Although I do not have the report of Dr Wootton of February 2001, it is plain that he regarded Mrs Richards as psychiatrically disturbed and in need of hospitalisation and anti-psychotic medication. 48 Mrs Richards, shortly after this tragedy, was taken to hospital. She was admitted to the Mandala Clinic, a psychiatric unit attached to the Gosford District Hospital. She was examined by Dr Darcy. Dr Darcy furnished a report of 7 February 2001, which included the following: "I formed the opinion on what I heard from her that she was probably suffering from delusional beliefs..." 49 Professor Quadrio described the mental state of Mrs Richards in these words: (p 32) "On the basis of this psychiatric assessment, my conclusion is that at the time of the offence Ms Richards was suffering from an abnormality of mind, a Delusional Disorder, such that she was unable to understand exactly what she was doing in rational terms. In an irrational way she knew what she was doing. She believed that she was saving herself and her children from the paedophile ring. She held that conviction absolutely and acted on it, absolutely believing it to be true. This belief was a delusional one and Ms Richards acted on that delusional belief. At the moment that Mrs Richards undertook to kill herself and her children, she did not have the capacity to understand that what she was doing was wrong. She truly believed that she was saving her children." 50 Professor Quadrio offered the opinion that Mrs Richards had available to her the defence of mental illness, which, were it established as a probability, would render her not guilty of the offence. She said this: (p 35) "It is my opinion that Ms Richards was not responsible for her actions in relation to these offences because she is suffering from a mental illness. That mental illness is a psychotic one and is well recognised psychiatrically as constituting an abnormality of mind." 51 Professor Quadrio added: (p 35) "In the event that the Court may not accept that defence, it is my view that Ms Richards must be seen to be suffering from an abnormality of mind that constitutes substantial impairment." 52 The Director of Public Prosecutions qualified a forensic psychiatrist, Dr Olav Nielssen, to examine Mrs Richards and express a view. The view reached by Dr Nielssen did not differ from that of Professor Quadrio. In his report of 21 September 2001, Dr Nielssen said this: (p 9) "I believe Ms Richards has the defence of mental illness open to her. She has a defect of reason arising from a disease of the mind, in the form of the delusional belief that there was a conspiracy involving both of her former husbands, her neighbour and other members of the community to sexually abuse her children. At the time of the offence, she was deprived of the knowledge that killing the children and committing suicide herself were wrong, as she believed that the children would be returned to a situation in which they would be subjected to sexual abuse. Moreover, in her acutely distressed state, she was unable to reason with any measure of calmness or composure about the consequences of her actions." 53 Dr Nielssen added: (p 9) "Ms Richards would also be able to raise the defence of substantial impairment', as she has an abnormality of mind arising from an underlying condition that impaired her judgement, perception of events and capacity for self control." 54 Dr Lisa Brown, a visiting psychiatrist at the Mulawa Women's Prison, has seen Mrs Richards on a number of occasions since her incarceration in that prison on 9 February 2001. Dr Brown said this: (p 4) "... Although she is now able to recognise the wrongfulness of her behaviour, it is my opinion, based on my contact with her, that Ms Richards was unable to recognise this at the time and that she acted on a firmly held belief that she and her children would be better off dead than to allow them to be at further risk of harm." 55 Returning to the issue which I identified at the outset, namely, the moral culpability which attaches to Mrs Richards' actions, Mrs Richards was, in the unanimous view of these doctors, so substantially impaired that she might have raised the defence of insanity. She has, however, not done so. Rather, she has, as mentioned, raised, and the Crown has accepted, the partial defence of substantial impairment by reason of abnormality of mind. Nonetheless, it is obvious that the impairment under which Mrs Richards laboured was so gross as almost to amount to insanity. 56 The dilemma which confronts a sentencing Judge in these circumstances, was eloquently described by Street CJ in R v Georgina Marie Hill (1981) 3 A Crim R 397, in these words: (at 402) "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 contexts which provide 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. In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life." 57 A sentence ordinarily serves a number of objectives, one of which is deterrence, both of the individual and of the community. Here, I believe there is little need for personal deterrence so far as Mrs Richards is concerned. For the reasons I will provide shortly, the risk of re-offending is low. Her case, moreover, does not provide a suitable vehicle to deter the community at large (Scognamiglio v R (1991) 56 A Crim R 81). Barr J in R v Sette [2000] NSWSC 648, said this: (para 42) "42. A sentence can only have a deterrent effect to the community at large where the community can appreciate that there is a real degree of culpability on the part of the offender. Where the actions of the offender approach the morally innocent, little is demonstrated to the community by way of deterrence in the imposition of sentence."

Prospects of Reoffending 58 Once the crisis was over, Mrs Richards quickly made significant progress in her mental health. The psychiatrist who saw her in prison, Dr Lisa Brown, furnished a report on 2 March 2001, which included the following: (Exhibit 1) "I am not aware that she poses a risk to herself or to others if she were to be released on bail." 59 Dr Nielssen described the nature of Mrs Richards' illness. His description provided some insight into the likely prognosis. It may be accepted that at least one of her children, and a neighbouring child, said things to her which suggested sexual abuse. The delusion which various doctors, including Dr Nielssen, diagnosed, had its source in the way in which Mrs Richards used this material, ultimately drawing the conclusion that both husbands were involved in a paedophile ring, as well as a neighbour. Mrs Richards, at the time that conclusion was drawn, had almost a decade of experience of living with Mr Duff and then Mr Richards. One assumes, since it was not mentioned, that nothing came to her notice in that time which suggested paedophile conduct on the part of either. This was the context within which she received accounts from a child who was then five and a half years old, and from another child a little older, but described as somewhat backward. Mrs Richards was right to take these accounts seriously. However, the accounts given by young children of such matters may be unreliable. Indeed, as Mrs Richards acknowledged, she recognised that aspects of her son's account were unreliable. She said this: (T 60) "... Braedy has made disclosures like 'He's putting sticks up my bottom'. I know that's not possible or otherwise his bottom would be bleeding, but I can only repeat what he told me." 60 Nonetheless, recognising the unreliability of that aspect of her child's account did not shake Mrs Richards' faith in other aspects of the accusations which were made, first against Mr Mark Richards and then against Mr Anthony Duff. Nor did the rebuttal of at least part of these allegations, provided by her neighbour, undermine her faith in the account that she had been given. Likewise, the conclusions of the Joint Investigative Team offered her no solace. It is in this context that the doctors diagnosed delusions. She had a fixed belief, which in her mind was unshakeable. 61 Mrs Richards' prognosis, in these circumstances may, to a degree, depend upon the prominence which issues of child abuse have in her life in the future. When she saw Professor Quadrio, she thought that she might devote her time to exposing paedophile rings, and DOCS, whom she believed had let her down. Since these were the very things which triggered her delusions and the psychotic episode, and led to these crimes, that preoccupation, were it to occur, would be a matter of concern. 62 However, more recent evidence from Dr Nielssen, which I accept, and from Mrs Richards herself, suggests that the preoccupation has receded. She saw Dr Nielssen on 23 April 2002. Dr Nielssen reported on his examination as follows: (p 1) "In response to questions to establish her current beliefs, she answered that she had 'no desire to pursue it, as it would only harm the kids' and said 'I won't harp on it or do anything about it'. She said 'I would never be in that situation again ... what I did was in a state of panic ... I had no support from anyone'." 63 Dr Nielssen therefore assessed Mrs Richards as presenting a relatively low risk of reoffending. He gave the following evidence: (T 17/18) "In terms of the prediction of dangerousness itself as outlined in my report, it's not a very easy area to discuss based on scientific knowledge because the research is inconclusive and again it's very difficult to generalise research on groups of people to individuals, but having said that, I'd say that Ms Richards has a relatively low risk for the reasons that the situation in which the offence occurred is unlikely to recur and from what she's been through and the treatment she'd had and will likely to get will modify her response in future. Secondly, she's not a person who carries a high risk of violence or harm to others anyway, through having a history of anti-social or violent conduct or substance abuse leading to loss of control of behaviour. Thirdly, even though delusions are fixed they can respond to some extent to treatment, even just a counselling to, and I believe that she has gained some insight regarding what other people believe are delusional beliefs from the way she skirted around the subject during our interview when her current beliefs were very much an area of interest. ..." 64 Dr Nielssen also gave the following evidence: (T 20/21) "A. ...She hadn't previously had any exposure to counselling or care other than marital counselling and what sounded like an acute episode in her early adult life. I think she would handle things differently and I've previously given evidence on the risk being very much higher during the first episode if you like of mental illness as opposed to later episodes." 65 Dr Nielssen elaborated upon the last answer in the following evidence: (T 21) "A. ... the first episode of psychotic illness prior to any contact with treating services carries a far higher risk than subsequent episodes and this is based on my own unpublished data but it's about a 40 fold higher risk." 66 I accept this evidence. Mrs Richards, on the evidence, has made a very good recovery from her mental illness. I believe the prospects of rehabilitation to be excellent. I accept that, with appropriate treatment and supervision, Mrs Richards presents a low risk of reoffending.

The Subjective Case of Mrs Richards 67 Mrs Richards is a woman aged 39 years. She is intelligent, accomplished and refined. She gave evidence before me. She presented as an articulate and reasonable woman, who had plainly made a substantial recovery from the acute mental illness which afflicted her. 68 Mrs Richards was, on the evidence before me, a woman who was devoted to her children. Ms Patti Hammond, of the Probation and Parole Service, said this: (Exhibit D) "Enquiries revealed that Ms Richards is considered to be a well organised, capable, caring and devoted mother. She devoted time to her children and developed close relationships with them; she loved her children and they loved her." 69 Mrs Richards has no previous convictions. She has been, throughout her incarceration, a model prisoner. I accept unreservedly that Mrs Richards suffers very significant remorse. 70 Mrs Richards acknowledged at once responsibility for her crimes. She pleaded guilty at the first available opportunity, that is, once the Crown had accepted her plea of guilty to manslaughter on the basis of substantial impairment. The sentence should be approached upon the basis of the maximum discount of 25% for an early plea of guilty (R v Thomson & Houlton [2000] NSWCCA 309).

The Appropriate Sentence 71 Mrs Richards entered custody on the day of the offences, 7 February 2001. She has remained in custody for a period exceeding 15 months. That custody has, in part, been the more onerous because her crimes involved a child, making it necessary that she be held on protection. 72 In fixing upon a sentence, it is necessary that separate sentences be identified in respect of each count. In determining such sentences I should have regard to the principle of totality, giving consideration at the same time as to whether the sentences should be concurrent or cumulative (Pearce v The Queen (1998) 194 CLR 610). 73 The task of fixing an appropriate sentence in this case is, for the reasons identified by Sir Laurence Street, not an easy one. The case, on any view, is most unusual. I have considered, as one of the many alternatives, a further custodial sentence. However, in the unusual circumstances of this case, and taking account of the 15 months that Mrs Richards has already served, I do not feel that a further sentence of full time custody is called for. 74 Rather, I believe that it is appropriate that Mrs Richards should enter a Good Behaviour Bond for a period of 5 years. Under Pt 8 of the Crimes (Sentencing Procedure) Act 1999, it is necessary that such a bond should contain a number of conditions. It is also necessary that I should explain those conditions to the person who is to be the subject of the bond, in this case Mrs Richards. 75 Here, it is appropriate, in my view, to impose conditions as to supervision. Recommendations have been made by various psychiatrists that Mrs Richards should be supervised and have counselling. Mrs Richards herself has said that she is anxious to have counselling. As a consequence of the conditions I intend to impose, she will be obliged to submit to psychiatric care, as directed by those responsible for her supervision. 76 Before passing sentence, it is perhaps appropriate that I should address some remarks to others affected by this tragedy. Mr Mark Richards has lost a precious daughter. He also has the torment of knowing what his son, Braedy, has been through. Mr Anthony Duff has the same torment in respect of Mahon. The families of both Mr Richards and Mr Duff have, no doubt, been affected, and affected profoundly. It is gratifying to see that neither child suffered physically. It is also encouraging that the Victim Impact Statement suggests that Mahon is now doing very well. 77 One can only hope that Mr Richards and Mr Duff approach the future with some appreciation of the vicious and unreasonable nature of mental illness, and the need for generosity and charity in their dealings with Mrs Richards, keeping at the forefront of their minds the paramount interests of the children.

Order 78 Raigan Frances Richards, I sentence you as follows:

1. In respect of the second count, the attempted murder of Mahon Richards, you are sentenced to a fixed term of imprisonment commencing on 7 February 2001, and expiring today, 17 May 2002.

2. In respect of the third count, the attempted murder of Braedy Richards, you are sentenced to a fixed term of imprisonment, concurrent with the previous term, commencing on 7 February 2001, and expiring today, 17 May 2002.

3. In respect of the offence of manslaughter, you are required to enter a Bond (under s9 of the Crimes (Sentencing Procedure) Act 1999), for a period of 5 years commencing today, 17 May 2002, and expiring on 16 May 2007; that Bond to include the following conditions: · First, that you will appear before the Court, if called upon to do so, during the term of the Bond. · Secondly, that you will be of good behaviour, and will inform the Registrar or the Clerk of the Court of any change of residential address. · Thirdly, that within 24 hours of your release, you will report to the Adult Probation and Parole Service, at a location to be stipulated, and will submit to its supervision and directions during the term of your Bond. · Fourthly, that you undertake such psychiatric care as the Adult Probation and Parole Service may arrange or direct. 79 The consequence of the imposition of these various conditions as part of the Bond is that if you fail to comply with them, or any of them, you may be brought back before the Court and sentenced according to law. The sentence that may be imposed may include a number of sanctions, including imprisonment. In the event that there is a breach of the Bond, a warrant may be issued for your arrest. The Court may, unless there are reasons excusing such breach, proceed to enforce the Bond in the ways which I have stipulated.

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