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R v Justins [2011] NSWSC 568

R v Maxwell [2003] VSC 278

R v Nielsen [2012] QSC 29 R v Verdins (2007) 16 VR 269

Wong v The Queen (2001) 207 CLR 584

Young v The Queen [2012] NSWCCA 49

Parties: John Christopher Walmsley (Appellant)

Crown (Respondent)

Representation: Counsel

Mr J Sabharwal (Appellant)

Mr J White (Respondent)

Solicitors

J Boersig, Legal Aid, ACT (Appellant)

The Director of Public Prosecutions (Respondent)

File Number(s): ACTCA 72 of 2013

SCC 313 of 2011

Decision under appeal: Court/Tribunal: ACT Supreme Court

Before: Burns J

Date of Decision: 9 October 2013

Case Title: R v Walmsley

Court File Number(s): SCC 313 of 2011

THE COURT ORDERS THAT:

1. The appeal be upheld.

2. The appellant be re-sentenced as follows:

(i) For the offence of aiding and abetting suicide contrary to s17 of the Crimes Act 1900 (ACT), imprisonment for two years and nine months. A non parole period of one year and eight months is fixed.

(ii) The sentence be backdated to 5 February 2013 to take account of time already spent in custody. The sentence will end on 4 November 2015 and the non parole period will end on 4 October 2014. REASONS FOR JUDGMENT

REFSHAUGE J

1. I have had the considerable advantage of reading the draft reasons of Ross J. I agree with the orders he proposes and the reasons he gives for them.

PENFOLD J

1. I agree with the orders proposed by Ross J, and with his reasons for proposing them.

ROSS J

Introduction

1. On 26 July 2013 a jury found the appellant guilty of the offence of aiding and abetting suicide contrary to s 17 of the Crimes Act 1900 (ACT) (the Crimes Act). Burns J subsequently sentenced the appellant to four years’ imprisonment with a non-parole period of two years and four months. The maximum penalty for this offence is ten years’ imprisonment. The appellant has appealed his Honour’s decision on the sole ground that the sentence imposed was manifestly excessive. This decision deals with that appeal.

Background

2. The facts as set out in his Honour’s sentencing remarks are not in dispute. In essence the appellant met Lisa McDonald (the deceased) in May 2010 whilst undergoing drug rehabilitation for his long term heroin addiction. At this time the deceased was not a heroin user but had a history of alcohol and cannabis abuse and was bipolar. The deceased also had a young daughter who she was caring for with the assistance of her mother. After the deceased met the appellant she began using heroin. His Honour did not find that the appellant had introduced her to its use.

3. In late 2010 the deceased was suicidal and the appellant knew this. She attempted to address her drug addiction by booking herself into a drug rehabilitation facility, Karralika.

4. On 31 December 2010 the deceased was observed to be distressed at a Narcotics Anonymous meeting. The appellant and the deceased had argued at the meeting and the appellant left the meeting. That night, the deceased tried to obtain enough heroin to commit suicide but the person she sought to buy it from refused to sell it to her.

5. On 1 January 2011 the deceased told the appellant that she had unsuccessfully attempted to purchase enough heroin to kill herself the night before. The appellant drove her to her mother’s house where she wrote a document purporting to give custody of her daughter to her mother. His Honour was satisfied that the appellant knew the effect of that document and that it was clear to him that the deceased was serious about committing suicide at this point.

6. The appellant and the deceased then drove to the refuge where she had been staying and collected her personal belongings, $500 in cash and some medication.

7. The appellant purchased heroin using the money provided by the deceased. The appellant and the deceased both used part of the heroin.

8. His Honour was satisfied that as she was a relatively inexperienced heroin user, the deceased was significantly affected by the amount of the drug that she took on that occasion. The person who sold the drugs to the appellant was concerned about how affected she was and as they left he told the appellant not to give the deceased any more heroin.

9. The appellant and the deceased then went to his home and at about 5:30pm the appellant prepared some more heroin, which they both used, and then fell asleep.

10. At about 6:30 pm or 7:00 pm the appellant woke up and went into the lounge room. He then returned to his bedroom and the deceased woke up. His Honour accepted that the deceased talked about killing herself, wrote a suicide note and asked for more heroin. His Honour found that the appellant was aware of the contents of the suicide note.

11. After using more heroin, the appellant and the deceased passed out. The appellant woke up at about 12:20 am and noticed that the deceased was still asleep and snoring. The appellant fell asleep and then woke again at about 3:00 am or 3:30 am. At that time the appellant noticed that the deceased’s face was blue and that blood and foam was coming out of her mouth. The appellant rang for an ambulance and then performed CPR, although the deceased was already dead.

12. In his reasons for sentence his Honour dealt with the circumstances concerning the offending and outlined the factual basis upon which he sentenced the appellant. Importantly, his Honour found that the appellant and the deceased both intended to kill themselves when they obtained and used the heroin. His Honour concluded that this offence was in the mid-range of offences for this type, although perhaps at the lower end of that range.

13. His Honour referred to the appellant’s criminal record, particularly for offences of dishonesty, and noted that his criminal history disentitled the appellant to any leniency.

14. His Honour found that the Appellant had ‘shown very little, if any remorse’ and that he had attempted to distance himself from responsibility for the deceased’s death. His Honour went on to state that the appellant had lied about his involvement in the deceased’s death during the course of the trial and maintained those lies when he spoke to the author of the Pre-Sentence report.

15. His Honour went to the matters in the Pre-Sentence Report. These included various subjective factors which were set out in detail in the report, including the appellant’s challenging upbringing, limited education and employment, and his long term addiction to drugs and related criminal activities.

16. His Honour then referred to the Victim Impact Statements that were tendered and read at the sentence hearing. His Honour noted the pain occasioned to the family and friends of the deceased as a result of her death as well as the fact that her daughter had lost her mother, a matter which will undoubtedly have an impact upon her for the rest of her life.

17. His Honour also noted the maximum penalty which the legislature has attributed to the offence and made an assessment of the objective seriousness of the offending in this case. His Honour noted that the jury must have been satisfied that at the time the appellant purchased the heroin, and assisted the deceased in its preparation and use, the appellant knew that the deceased intended to kill herself and he did those acts in order to assist her in that plan.

18. His Honour accepted that there was no suggestion that the appellant stood to gain financially, or in any other way, through the death of the deceased and was satisfied that the appellant’s own ‘thought processes were disturbed to some extent at the time of those events’. Despite this, his Honour found that the appellant’s moral culpability was significant and concluded that nothing less than a prison term would be sufficient to punish the appellant and deter others from this type of offending.

The Appeal

19. The appellant does not allege that His Honour made any specific error (such as acting upon the wrong principle; allowing extraneous or irrelevant matters to guide or affect him; mistaking the facts or not taking into account some material consideration), rather it is submitted that his Honour made an error of the last kind 1 mentioned in House v The King, in that it was to be inferred from the result that there was ‘failure properly to exercise the discretion which the law reposes in a court of first instance.’ In essence it is submitted that the sentence imposed is ‘manifestly excessive’. The proposition that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than 2 some ‘substantial wrong has in fact occurred’ in fixing the sentence. 3

20. As was stated in Dinsdale v The Queen: ‘[m]anifest inadequacy of sentence, like manifest excess, is a conclusion’ and, as the plurality pointed out in Wong v The 4 Queen, appellant intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is materially different from other sentences that have been imposed in other cases.’ Rather, as the plurality in Wong went on to say:

“[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the 5 statement of reasons.”

21. The court’s power to substitute a sentence for that imposed at first instance can only be enlivened if it is satisfied that his Honour’s discretion miscarried in the result, that is that his Honour imposed a sentence that was above the range of sentences that 6 could be justly imposed for the offence.

22. His Honour clearly faced a difficult sentencing task in the context of a limited number of past sentences for similar offences.

23. In seeking consistency sentencing judges have regard to what has been done in other cases. However, care must be taken in using what has been done in other cases. The consistency which is sought is consistency in the application of relevant 7 legal principles, not numerical equivalence. Past sentences provide guidance to sentencing judges and ‘stand as a yardstick against which to examine a proposed 8 sentence’. But while a history of sentencing can establish a range of sentences that

1 (1936) 55 CLR 499 at 505. 2 House v The King (1936) 55 CLR 499 at 505; also see Barbaro v The Queen (2014) 305 ALR 323 (12 February 2014) at [27]. 3 (2000) 202 CLR 321 at 325; See applied in Hili v The Queen [2010] HCA 45 at 49 [59]. 4 (2001) 207 CLR 584 of 605 [58]. 5 Ibid. 6 Everett v The Queen (1994) 181 CLR 295 at 300 per Brennan, Deane, Dawson and Gaudron JJ; 306 per McHugh J; Lacey v Attorney General (Qld) (2011) 242 CLR 572 at 581 [15]-[16] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Bugmy v The Queen (2013) 302 ALR 192 at [24] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ. 7 Barbaro v The Queen (2014) 305 ALR 323 at 331 [40]. 8 Hili at [53]-[54] and Barbaro at [41]. have in fact been imposed, that history does not establish that the range is the correct range or that the upper and lower limits to the range are the correct upper or lower 9 limits. As the High Court has said on a number of occasions, what is important is the 10 unifying principles which past sentences reveal and reflect.

24. There are no comparable cases in this jurisdiction however some interstate sentences were drawn to his Honour’s attention by the Crown. On appeal the Crown submitted that none of the sentences referred to establish that the sentence in this matter was outside the range of appropriate sentences.

25. I propose to briefly refer to each of the cases referred to by the Crown. 11

26. In R v Maxwell the unrecorded offender pleaded guilty to aid or abet suicide pursuant to s.6B(2) of the Crimes Act 1958 (Vic), which carried a maximum penalty of five years’ imprisonment. The offender’s wife was terminally ill with cancer and expressed a clear intention to commit suicide. The offender made numerous efforts to dissuade her but eventually promised to assist in alleviating her suffering. He provided assistance by purchasing items required and participating in the act itself. He was sentenced to 18 months’ imprisonment, fully suspended. 12

27. In R v Justins the offender was the partner of the deceased. The offender’s friend travelled to Mexico to obtain Nembutal. The deceased had advanced Alzheimer’s disease and prior to the advancement of his condition he had requested that the offender and her friend assist him to commit suicide. They had tried to take him to Switzerland for legal euthanasia, but the doctor they consulted was not convinced that he had sufficient cognitive ability to meet the Swiss requirements. The offender made the Nembutal available to the deceased and he died as a result. The offender had arranged to change the deceased’s will resulting in a greater share being received by her and accordingly, her assistance in his suicide was not entirely altruistic, but was motivated by some degree of self interest. The offender was re-sentenced to the rising of the court for aiding and abetting suicide, because she had already served a sentence (twenty-two months periodic detention) for a quashed manslaughter conviction, and the court said that no greater penalty than that would have been justified. The offence under s 31C(1) of the Crimes Act 1900 (NSW) carries a maximum penalty of ten years’ imprisonment. This case is distinguishable having regard to the history of the prosecution. 13

28. In R v Nielsen the offender was convicted by a jury on a charge of aiding suicide. The deceased was a seventy-six year old man who had had a stroke which was physically minor but impacted on him psychologically such that he was concerned about his lack of independence. After the stroke the deceased gave the offender his power of attorney and made him the sole beneficiary of his will. Accordingly the offender had a personal financial interest in the deceased’s death. The offender made contact with Exit International, a pro-euthanasia group, on the deceased’s behalf. Meetings took place between the deceased, the offender and representatives from Exit International and the offender took notes on how to obtain Pentobarbital from Mexico. The offender went and obtained the drug from Mexico and then made it available to the deceased who then took it and died. The offender was sentenced to 3 years’ imprisonment and was eligible for parole after serving 6 months. In Queensland the maximum penalty for this offence is life imprisonment.

29. In oral argument the Crown contended that the offending in this matter was more objectively serious than that in Nielsen. In support of that contention the Crown

9 Hili at [54]. 10 Wong v The Queen (2001) 207 CLR 584 at 606 [59]); Hili at [54]; Barbaro at [41]. 11 [2003] VSC 278. 12 [2011] NSWSC 568. 13 [2012] QSC 29. pointed to the fact that in Nielsen the deceased had given the issue of suicide a lot of consideration over a period of some two years and it was a deliberate decision.

30. I reject the proposition in this case was more serious than that in Nielsen. The extent 14 of premeditation and the fact that the offender stood to gain financially from the deceased’s death mark Nielsen as more serious offending than the circumstances of this case. It is also highly relevant to observe that the sentence imposed in Neilsen was in the context of a maximum sentence of life imprisonment (as opposed to ten years’ imprisonment in the present matter). The maximum penalty indicates the 15 seriousness of the offence and it is a matter to which sentencing judges must have 16 regard.

31. Of course the question of whether the sentence in this case was manifestly excessive is not to be determined on the basis of whether it is more severe than some other 17 sentence. As Hunt CJ at CL observed in R v Ellis:

“What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.”

32. The circumstances in the cases vary significantly in terms of the maximum penalties for the offence, past criminal history of the offender and, importantly, the nature and 18 circumstances of the offence. As was observed by Coldrey J in R v Hood:

“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. I regard your case as being some way towards the latter end of this spectrum.”

33. It was submitted by the Crown that this matter was not at either extreme set out in Hood. It was submitted that the offence was objectively more serious than a “mercy killing” at the lower end of the spectrum, in that it was not within the same range of circumstances as assisting a terminally ill person who is in a lot of pain, but, it was not a situation where the appellant was going to profit from the deceased’s death.

34. It is common ground the unifying principle which emerges from the past sentences is that the degree of moral culpability attributable to the person who aids and abets suicide is an important consideration in the determination of a just and appropriate penalty.

35. I now turn to consider the matters which were relevant to the fixing of the sentence in this case, in accordance with ss 7 and 33 of the Crimes (Sentencing) Act 2005 (ACT). As the plurality in Hili stated:

“... what reveals manifest excess, or inadequacy, of sentence is a consideration of 19 all of the matters that are relevant to fixing the sentence.”

14 See R v Morabito [1992] 62 A Crim R 82 at 86. 15 Gilson v The Queen (1991) 172 CLR 353 at 364. 16 Markarian v The Queen (2005) 228 CLR 357 at [31] per Gleeson CJ, Gummow, Hayne and Callinan JJ. 17 (1993) 68 A Crim R 449 at 461; cited with approval by this court in R v Campbell [2010] ACTA 20. 18 [2002] VSC 123 at [33]. 19 Hili at [60].

36. There is no real challenge to his Honour’s findings in relation to the relevant sentencing considerations. In particular his Honour found that:

(i) in terms of objective seriousness the offence was in the ‘mid range of offences of his type, although perhaps towards the lower end of that range’;

(ii) the appellant’s prior criminal history disentitled him to any leniency;

(iii) the appellant did not have good prospects of rehabilitation. The appellant was a medium to high risk to himself and others, which could only be altered by his effectively addressing his entrenched drug taking behaviours and to date the appellant has demonstrated little commitment to addressing drug abuse;

(iv) the victim impact statements speak of the pain occasioned to the family and friends of the deceased through her death and the ongoing effect that her death has on their lives;

(v) the appellant has shown little, if any, remorse and has attempted to distance himself from responsibility for the deceased’s death;

(vi) the appellant and the deceased both intended to kill themselves when they obtained and used heroin; and

(vii) the appellant’s thought processes were ‘disturbed to some extent at the time’ by ‘his own feelings of hopelessness and the effect of [his] longstanding drug addiction’.

37. It seems to me that the last two considerations were particularly relevant. His Honour dealt with these matters in the following terms:

“... I am satisfied that you intended to kill yourself on 1 January 2011, when you and the deceased obtained and used the heroin. I am also satisfied that you were aware that the deceased intended to kill herself by the use of heroin ...

I am satisfied that both of you felt depressed and defeated by the degradation of your lives as drug users and your failure to succeed in addressing your drug addictions. You both determined to end your lives. Lisa McDonald succeeded and you did not ...

I accept that your thought processes were disturbed to some extent at the time of the events, by your own feelings of hopelessness and the effects of your long standing drug addiction. But nevertheless, your moral culpability is still significant. Nothing in my opinion, less than a prison term will be sufficient to punish you and to deter others from this type of offending.” 20

38. While not relevant to the assessment of the objective seriousness of the offence an offender’s mental condition can have the effect of reducing their moral culpability and 21 matters such as general deterrence, retribution and denunciation have less weight.

39. In Muldrock v The Queen the High Court explained the rationale for the principle:

“One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this:

20 Muldrock v The Queen (2011) 244 CLR 120 at [27]; Young v The Queen [2012] NSWCCA 49 at [28]. 21 Muldrock v The Queen (2011) 244 CLR 120 at [53]; R v Verdins (2007) 16 VR 269; R v Israil [2002] NSWCCA 225 at [23]; R v Henry (1999) 46 NSWLR 346 at 354. General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender 22 is not an appropriate medium for making an example to others’

(citations omitted)

40. In the circumstances of this case, on his Honour’s findings, the appellant and the deceased both intended to commit suicide. Both felt depressed and defeated by the degradation of their lives as drug users and their failure to succeed in addressing their drug addiction and at the time of the offence the appellant’s thought processes were ‘disturbed to some extent ... [by his] own feelings of helplessness at the effects of [his] longstanding drug addiction’. These matters were, in my view, significant considerations to the determination of a just and appropriate penalty. As a consequence of the appellant’s mental condition general deterrence should have been given little weight and his moral culpability for the offending was reduced.

41. I am satisfied that the sentence imposed in this matter was above the range of 23 sentences that could be justly imposed for the offence and his Honour’s discretion miscarried in the result. In reaching that conclusion I have had regard to the comparable sentences referred to earlier, making due allowance for the distinguishing features of this case. On that basis I would uphold the appeal, quash his Honour’s sentence and re-sentence the appellant. In resentencing the appellant I have had regard to the circumstances of the offending (set out in [2] to [11] above), the Pre- Sentence Report and the matters set out at (i)-(vii) of [36] above.

42. I would re-sentence the appellant to a period of imprisonment of two years and nine months with a non parole period of one year and eight months. The sentence will be backdated to 5 February 2013 to take account of time in custody. The non-parole period will also start on 5 February 2013, and will therefore expire on 4 October 2014.

I certify that the preceding forty-four (44) paragraphs (numbered [1], [1], [1]-[42]) are a true copy of the Reasons for Judgment of the Court of Appeal.

Associate:

Date: 1 August 2014

22 Ibid at [53]. 23 Bugmy v The Queen (2013) 302 ALR 192 at 198 [24].