R v Singh [1999] ACTSC 66

5. Appropriate psychiatric treatment be arranged for the prisoner whilst she remains a prisoner and that a psychiatric assessment be obtained prior to any consideration of her release upon parole.

1. On 23 April 1999 after a trial by judge alone I found the prisoner not guilty of the murder but guilty of the manslaughter of the late Giuseppe Joe Cinque. I also found the prisoner not guilty of two other offences. The relevant findings are contained in my reasons for judgment which were published and for present purposes it is unnecessary to repeat them in any detail. It now falls to me to pass sentence on the prisoner for the offence of manslaughter.

2. The events which have led to this case have been tragic. Mr Cinque was an intelligent, well-educated and handsome young man of twenty six who was obviously devoted to the prisoner and looking forward to sharing his life with her. There has been no suggestion that the actions which caused his death were in any way provoked by his conduct. On the contrary it seems clear that he had faithfully supported the prisoner through very difficult times. She herself referred to him as "the most wonderful man in the world". Yet, despite these qualities and his undoubted love for her, she killed him. She did so deliberately; drugging him with Rohypnol tablets and when he was helpless injecting him with a lethal dose of heroin. Nor was this the product of some whim suddenly conceived and acted upon without time for reflection. Her actions were premeditated and involved some significant planning. There were no extenuating circumstances other than her own mental state and she was acquitted of murder only upon grounds of diminished responsibility.

3. Homicide is a crime of the utmost gravity which not only involves taking the life of the victim but bringing anguish to the lives of his family and others who loved him. As the victim impact statement shows Mr Cinque's death has had a devastating affect upon his parents and his brother. The crime has already brought great distress to the prisoner's own family and, no doubt, there have been others whose lives have been touched to some extent by this tragedy.

4. Were it not for her diminished responsibility the crime would obviously have warranted a very heavy sentence of imprisonment.

5. However, justice requires more than advertence to the objective gravity of the offence. It also requires a fair assessment of the mental state of the accused and the extent to which he or she should be held responsible for the relevant act. Whilst such a defence has not been raised in this case, the law has long recognised that a person who is insane should not be held criminally responsible for his or her actions. However, a defence of insanity requires proof that the person was so labouring under what was described in the famous M'Naughten rules as a "defect of reasoning" that he or she did not know the nature and quality of the act or did not know that it was wrong. This is a very stringent test and there is obviously a vast gulf between normalcy and insanity. Hence, the law now recognises a defence of diminished responsibility which requires proof that at the time of the offence the accused was suffering from an abnormality of mind that substantially reduced his or her mental responsibility for the act. If this test is satisfied the accused must be acquitted of murder but may be liable to be convicted of manslaughter.

6. In the present case I have already found that at the time she committed the offence the prisoner was suffering from an abnormality of mind that substantially impaired her mental responsibility for the acts which led to Mr Cinque's death. In fact, I am satisfied that her mental responsibility was severely impaired as a result of psychological illness. She had a severe borderline personality disorder, a moderate to severe depressive illness and an eating disorder. The nature and potential gravity of these conditions may not be as well understood as that of some other psychological conditions but it is clear that their overall effect upon the prisoner's mental state was devastating.

7. A number of eminent psychiatrists and psychologists were called at the trial to give expert evidence about her mental state in the light of the events leading up to and following Mr Cinque's death. Their evidence, which has already been discussed in the reasons for judgment, was compelling. Dr Byrne said that she had been living with a psychotic delusion for months and that she had a significantly impaired capacity to control her emotions and think clearly and rationally. He said that if a rational killing was taken to be 1 and a grossly psychotic and insane killing was taken to be 10 "this woman comes up in the 6 to 7 range". In other words, her mental state at the time of the offence was closer to insanity than a normal rational state. Professor Mullen said that her judgment was "really quite grossly disordered". Dr Diamond, who was called to give evidence on behalf of the Crown, expressed the view that she had been in a dissociated state with "no proper appreciation or perception of the results of what she might do" until confronted by Mr Cinque's plight. The plan to kill him was a fantasy or a drama but she was unable to grasp the seriousness of what the plan implied. Death, he said, was almost wholly ignored in this "construct". The same concept was expressed in the pre-sentence report, with the prisoner likening the planning to a university assignment until she saw Mr Cinque gasping for breath and the reality hit her. There was also what Professor Mullen described as a wealth of medical records.

8. A further psychiatrist, Dr Lowden, was called to give evidence during the sentencing phase of the proceedings. She had been treating the prisoner since December 1998 and since that time had had nineteen consultations with her at the Belconnen Remand Centre. She too diagnosed a borderline personality disorder, a depressive illness and an eating disorder and, like Dr Diamond, referred to a description of dissociative features. She said that the prisoner had made perhaps a forty percent recovery from the depressive illness but was still severely ill. She thought that she required treatment in a hospital environment for three to six months, medication for about three to five years and psychotherapy for up to seven years.

9. The gravity of the prisoner's condition was amply confirmed by other evidence adduced during the trial. A number of Crown witnesses spoke of the deterioration of her psychological condition during 1996 and 1997. She became withdrawn, depressed and suicidal. She began to suffer delusions. At one stage she believed that ants were crawling around under her skin. At another stage she complained that her head had been relocated onto the wrong body. She became convinced that she was suffering from a degenerative condition that would lead to incapacity and death. This led her to consult numerous medical specialists but she refused to accept their assurances that she was not physically ill. She began to devise plans for her suicide to avoid the lingering process of physical degeneration, incapacity and death which she had come to accept as inevitable.

10. Her parents, who are both medical practitioners, became so concerned about her mental health that they took her to see a psychiatrist and he in turn referred her to another psychiatrist. However, she refused to accept treatment, maintaining that her problems were physical not psychological. Twice during 1997 her parents contacted the Mental Health Crisis Team in an endeavour to ensure that she received psychiatric treatment, as an involuntary patient if necessary. When told that an order of the Mental Health Tribunal would be required they attempted to obtain the necessary application forms. Only the commission of this offence intervened to prevent them from proceeding. They had obviously been extremely concerned about her mental state.

11. Her decision to kill Mr Cinque was plainly the product of her delusional beliefs and disordered thinking. She had come to believe that the degenerative and ultimately terminal illness from which she was convinced she was suffering had been caused by the ingestion of Ipecac syrup which Mr Cinque had suggested she might take to induce vomiting and hence lose weight. At some point she formed the view that Mr Cinque should die with her when she committed suicide. Her contemporaneous statements are by no means consistent but it appears that she may have initially vacillated between administering a lethal dose and merely sedating him so that she could die in his arms. The ultimate decision to kill him may have been due to her perception that by advising her to take the Ipecac syrup he was to blame for the illness which she believed would lead to her death, to jealousy that he might marry someone else after her death or simply to some romantic fantasy about the two of them dying together. No rational motivation was ever suggested.

12. Whilst the offence was planned the very nature of that planning and the steps taken in furtherance of that plan provide additional evidence of disordered thinking.

13. The events immediately before and after Mr Cinque's death were also significant. When she saw him in extremis she made a frantic telephone call to a regular drug user, Ms Cammack, apparently in an attempt to find some means of reviving him without alerting the authorities to what had occurred. Ms Cammack urged her to call an ambulance but she was reluctant to do so for fear that he would be angry when he woke up. She seemed not to realise that, having been given a quantity of heroin that she had judged should be sufficient to kill him, he was unlikely to wake up at all. After much argument and screaming she terminated the conversation but almost immediately rang back to say that she couldn't call the ambulance. Ms Cammack then told her that if she did call the ambulance she might have an angry boyfriend but if she didn't she might face a murder charge. The prisoner replied, "Shit, you're right!" Despite her legal training she had apparently not thought of her actions as homicidal. These conversations also tend to confirm Dr Diamond's opinion that she was experiencing significant dissociation. Whilst she may have had an abstract or intellectual understanding of what she was doing she seemed to have had no real appreciation of the implications. She displayed further ambivalence in calling the ambulance, initially giving false particulars.

14. Nonetheless it is clear that she attempted to save him by administering mouth to mouth resuscitation, that she anxiously directed the paramedics to the bedroom and assisted their attempts to revive him. She repeatedly sought reassurance that he would recover and, when informed that he was dead, insisted that this could not be happening. When it became clear that he could not be revived she became hysterical, flinging herself onto his body and refusing to leave until carried bodily from the room. Then she attempted to force her way back into the room and had to be physically restrained. Later, after she had been placed in a police car she attempted to fling herself out of the vehicle.

15. Letters seized from the prisoner's locker pursuant to a search warrant in April 1998 reflect both regret and bewilderment. They also convey an impression that she still felt some measure of shock that she could have behaved in such a manner. At one point she wrote "But even if I wanted to die? Why take Joe too? That's selfish and awful. My selfishness has ruined so many lives." Later she added, "And what about his parents? How they must be suffering now - badly. They will never get over this. Didn't I think of them?" Dr Lowden has given evidence that she still feels a profound sense of loss and remorse. She dreams of him, writes of her feelings for him and exhibits such distress that she is sometimes unable to read what she has written.

16. The overwhelming impression is of a delusional and mentally ill young woman who acted out some bizarre narcissistic or romantic fantasy in which two young lovers were to die in each other's arms. There was, I think, no real appreciation of the enormity of taking Mr Cinque's life. Nor was there any real appreciation of the grief which such an act would cause. It was I think for this reason that her actions appeared so callous. That level of her mind which was able to formulate and maintain this fantasy may have operated in a manner which was in a sense rational, but it did not enable her to grasp the grim reality of what was to occur or to experience the revulsion or even pity which such an awareness might have evoked. Death had not intruded into the fantasy in any real sense. But the reality with which she was confronted was neither romantic nor pleasant. It involved a man she loved gasping for air, vomiting and then not breathing. What Dr Diamond described as "reality checks" came quickly in the form of frantic telephone calls, mouth to mouth resuscitation on a man choking on his own vomit, the arrival of the paramedics and, ultimately, the realisation that he was dead. The hysteria followed.

17. Sentencing for manslaughter is always difficult. It has been said that in the vast range of circumstances giving rise to such a sentence it is difficult to perceive any clear pattern or coherent standards. These considerations "render the legitimate range of sentences available to (the sentencing judge) greater than is the case with most other offences". R v Troja (NSW Court of Criminal Appeal No 606394 of 1990) per Kirby P at 2). See also R v Williscroft & Ors [1975] VicRp 27; [1975] VR 292 at 299; Pellizzeri (1982) 8 A Crim R 31 at 35; Cascoe (1970) 54 Cr App R 401 at 409. However, the present case presents issues of special difficulty. To what extent is a person nearer to insanity than normalcy responsible for her actions? What level of moral culpability attends an act planned and executed by an offender whose intellectual understanding may have been clear but whose judgment was grossly disordered and who was unable to grasp the real seriousness of what the plan implied? What penalty is appropriate for someone who has deliberately killed a man whom she loved and whom she belatedly realised she did not want to die?

18. The starting point must be an acknowledgement of the objective gravity of the offence and the important role which the law must play in protecting human life. The sentencing process is not concerned solely with the subjective circumstances of the offender nor the reasons for the offence. It must also be acknowledged that whilst I have found the prisoner's mental responsibility for her acts to have been substantially diminished by the severity of her psychological condition she has deliberately killed an innocent victim.

19. However, the fact that her mental responsibility has been impaired is nonetheless an important factor. In Mason-Stuart [1993] SASC 4322; (1993) 68 A Crim R 163 at 164 the South Australian Court of Criminal Appeal said:

"The importance of fixing a sentence which is proportionate to the gravity of the crime and which operates as a deterrent to other members of the public, is considerably less when the court is dealing with a person of diminished responsibility than it otherwise would be.

A person of seriously diminished responsibility is not an appropriate subject for exemplary punishment with a view to deterring others and the ends of justice are not served by insisting that the punishment be proportionate to the gravity of the crime viewed objectively, as distinct from the subjective gravity of the particular offender's offending. The problem is to find a solution which will enable the public to be protected, without imposing a harsh punishment upon a person whose subjective moral responsibility is seriously diminished." (per King CJ at 164)

20. These principles have long been recognised and generally applied throughout Australia. See for example R v Gascoigne (1964) Qd R 539, R v Kocan (1966) 84 WN (Pt 1) (NSW) 588; Mooney (1978) 2 Crim LJ 351; R v Anderson [1981] VicRp 17; [1981] VR 155; and Hurd [1988] TASSC 54; (1988) 38 A Crim R 454.

21. It has been said that a sentence imposed for the purpose of deterrence will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his or her situation and to the needs of the community and that others suffering from a similar mental disorder are unlikely to be deterred by the knowledge of the custodial sentence imposed upon the offender: per Nettlefold J in Hurd at 461.

22. In the more recent case of R v Tsiaras [1996] VicRp 26; (1996) 1 VR 398 at 400 the Victorian Court of Appeal made the following observations:

"Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health."

23. In the present case the prisoner's mental condition is obviously a very important factor to be taken into account, particularly in view of the critical part which her delusional beliefs and grossly disordered thinking played in the formulation of the intent to kill and the planning which followed. However, there are other subjective factors which must be considered.

25. Secondly, a plea of guilty to manslaughter was offered prior to trial, though in all the circumstances I do not think that much weight can be attached to this factor.

26. Thirdly, there is evidence of remorse. It has been suggested that whilst the prisoner plainly regretted her actions she was substantially lacking in real remorse in the sense of regretting the wrongfulness of her crime and its impact upon others. It was submitted on behalf of the Crown that the distress exhibited to Dr Lowden was explicable on the basis of her own sense of loss. The prisoner's act has led to many personal losses including loss of liberty, interruption to her university studies, prejudice to her career, uncertainty as to the future and, no doubt, losses of self esteem and confidence. It has also led to the loss of her prospects of marriage to Mr Cinque and the deprivation of the emotional support which he had previously provided. It is certainly true that most of the expressions of regret contained in the letters seized from her locker in April 1998 relate to her own sense of loss. However, I gained the impression that in these letters and to some extent her consultations with Dr Lowden she was attempting to come to terms with the thought processes which had led her to act as she did. Even in the absence of elements of narcissistic or histrionic disorders which Dr Lowden said were present, one might have expected some measure of self absorption. Furthermore, there are some passages such as those quoted earlier which acknowledge both the wrongfulness of her actions and the suffering caused to others. I accept that her remorse extends to a real consciousness of her own guilt and of the pain she has caused to others, though I think that the main focus is probably still her own sense of loss. In particular, I think that she is grieving the loss of the relationship she had had with Mr Cinque and of her dreams of marriage and a family.

27. Fourthly, that sense of loss has caused significant distress and that distress will undoubtedly continue. Indeed, Dr Lowden expressed the view that it was likely to become worse when the legal proceedings had been concluded and she has to come to terms with what she has done. Her actions have to some extent imposed their own penalty. Whatever sentence is imposed, she will have to live with the pain of having killed a man whom she loved and apparently wanted to marry.

28. Fifthly, whilst the prisoner has recovered to some extent she remains seriously ill and will require ongoing treatment for several years. It is true that she requires a structured environment but the environment of a prison is not only structured but punitive. I think it is unlikely that she will achieve a full recovery during the time she remains a prisoner and that she will require further treatment upon her release.

29. All these factors are relevant but, ultimately, one must return to the problem identified by the South Australian Court of Criminal Appeal in Mason-Stuart. How, in all of the circumstances, does one find a solution which will enable the public to be protected, without imposing a harsh punishment upon a person whose subjective moral responsibility is seriously diminished?

30. Any sentence must plainly reflect some balance between competing considerations. On the one hand the offence was, as I have said, a very serious one, committed deliberately and with premeditation, upon a blameless victim. On the other hand, it was committed during a period of emotional torment by a person of previously good character whose mental responsibility for the offence was severely impaired by psychological illness. I am satisfied that it would not have been committed but for that illness. The law has long sought to distinguish between culpability for acts attributable to mental illness and acts of rational decision. The terrible acts which caused the death of Mr Cinque involved elements of both but in my view they were closer to the former than the latter.

31. In all the circumstances I have concluded that a sentence of ten years imprisonment is appropriate. I strongly recommend that arrangements be made for her to receive psychiatric treatment during the period of imprisonment. I also recommend that there be an assessment of her psychiatric condition prior to any decision as to parole. Whilst I intend fixing a period of four years as the minimum period she must serve, the timing of her release may ultimately depend upon whether at any time when parole is being considered she presents any continuing danger to the community.

32. Furthermore, whilst Dr Lowden thought that she was not currently suicidal the prisoner was pre-occupied with thoughts of suicide for months prior to the death of Mr Cinque and maintained suicidal ideation for months after her arrest. Whilst her mental health subsequently improved her condition again began to deteriorate as a result of the stress of the trial. She is still seriously ill psychologically and I am conscious of Dr Lowden's warning that her distress is likely to become worse when the legal proceedings have been completed. The impact of being sentenced, removed from the Belconnen Remand Centre to a New South Wales prison and as a consequence losing the continued support of Dr Lowden may all cause further stress. Accordingly, I think that there is a real danger of suicide and I recommend that she be considered a prisoner at risk.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Solicitors for the Crown: Director of Public Prosecutions

Solicitor for the Offender: Sutherland & Tiirikainen