Director of Public Prosecutions v Lizzul
[2020] VCC 180
•3 March 2020
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01599
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SUSAN LIZZUL |
---
JUDGE: | Her Honour Judge M. Sexton | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 18 February 2020 | |
DATE OF SENTENCE: | 3 March 2020 | |
CASE MAY BE CITED AS: | DPP v Lizzul | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 180 | |
REASONS FOR SENTENCE
---
Subject: Criminal Law
Catchwords: Reckless conduct endangering a person
Cases Cited:Meissner v R (1995) 184 CLR 132, Maxwell v R (1996) 184 CLR 501, R v Broadbent [1994] VR 773, Phillips v R [2012] VSCA 140, DPP v Ristevski [2019] VSCA 287
Sentence: Community Correction Order for 2 years with conditions
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Moore | OPP |
| For the Accused | Mr L. Barker for plea Ms L. Freijah for sentence | Turnbull Lawyers |
HER HONOUR:
1 Susan Lizzul, you have pleaded guilty to a charge of reckless conduct endangering a person, an offence with a maximum sentence of 5 years’ imprisonment.
2 I sentence you on the basis of the prosecution opening[1], which was an agreed summary read out in court. I will briefly summarise the circumstances of your offence. In this summary, I will use a pseudonym for the victim of your offence and her family.
[1] Exhibit A
3 In January 2015, you became the appointed full time foster carer for a 12 year old girl, Eve[2], when circumstances meant that her family could not care for her at home. You had already met Eve and her family through contact in the disability services sector, as you yourself had two children with disabilities.
[2] A pseudonym
4 Eve suffers from Cerebral Nodular Heterotopia, a condition similar to cerebral palsy. She also has minimal cognitive capacity because of her severe intellectual disability, is non-verbal, and severely epileptic with 30-50 seizures a day for which she is medicated. She is not mobile and is restricted to a wheelchair, and has multiple other issues including constipation, urinary retention and increasing scoliosis. All fluids and medications are provided to her through a stomach PEG[3] tube, and feeding has to be carefully managed to avoid aspiration into her lungs. Although Eve was described in the prosecution opening as being in a ‘constant vegetative state’, there is other material[4] that suggests that Eve can react and interact with others to a certain degree.
[3] Percutaneous Endoscopic Gastrostomy
[4] Eg. Exhibits 1 and 2
5 You had the day to day 24 hour care of Eve, assisted by other carers who attended your home each morning to get Eve showered, dressed, fed and medicated before taking her to school. Eve’s parents had overall responsibility for decisions relating to their daughter.
6 On 16 November 2016, the carer who attended at about 7.30am found Eve asleep but looking and smelling unwell. The carer attempted to administer the medication through the PEG tube, but Eve vomited. The carer reported to you and you said you were taking her to the doctor later that day. The carer also observed Eve with extreme diarrhoea.
7 Eve’s mother was contacted by your employer to say that Eve was unwell and needed to see a doctor. An appointment was made but you did not arrive at the doctors’ clinic with Eve to meet Eve’s mother there. She rang you and you told her Eve had vomited. Eve’s mother went to your home at about 1.50pm where she found her daughter in a pale and lethargic state, although conscious and watching television. You told Eve’s mother that Eve had a seizure not long before.
8 At 2.15pm, Eve’s mother rang 000 for an ambulance. Eve was conscious and not having a seizure on their arrival but after you provided the information that Eve had been generally unwell the past few days with diarrhoea, regurgitation vomiting via her PEG tube, and with reduced communication, it was decided to transport Eve to hospital for assessment and management.
9 As it happened, Eve’s paediatrician was on duty and attended to her. Eve was observed to have a wavering conscious state, with a Glasgow Coma Score (GCS) that varied from 11 to 3, with 15 being the score given to a fully awake and responsive person and 3 being the minimum score.
10 As her carer, you were asked by the doctors if Eve had been exposed to any medications other than those prescribed to her. You said you were certain that she had not. Three times you were asked between 4pm and 8pm, and three times you said she had not.
11 Given Eve’s presentation and the information made available to the doctors, they had three differential diagnoses: first, continuous seizures secondary to Eve poorly absorbing her epilepsy medication due to vomiting; secondly, decreased conscious state secondary to sepsis and pneumonia possibly due to aspiration of food into her lungs; or thirdly, decreased conscious state from some other toxin or drug ingestion particularly opioid, suggested by her low state of consciousness, slow breathing rate and low blood pressure.
12 The doctors decided to commence treatment on all three differential diagnoses, with anticonvulsant and antibiotic medications for the first two, and naloxone treatment for the third. Naloxone is a drug that reverses the effects of opioid drugs such as codeine or morphine. Within 10 minutes of Eve receiving the first dose of naloxone, her GCS improved from 6 to 11 out of 15.
13 You were specifically asked by one doctor whether codeine, morphine or any other opioid was administered to Eve and you stated clearly that they were not.
14 A urine sample was obtained from Eve at 5.30pm. On analysis, this tested positive to morphine and codeine.
15 Eve’s conscious state continued to waver, and she was administered two further doses of naloxone at the Ballarat Base Hospital, and in the early hours of 17 November, Eve was transferred to the Royal Children’s Hospital for specialist care. She remained there until 22 November when she was returned to the paediatric unit in Ballarat.
16 Morphine has a short duration of action and does not remain in the blood for many hours after administration. Given the positive results of the analysis of Eve’s urine sample taken at 5.30pm on 16 November, it is clear that an opioid or morphine based drug was given to her in the hours before her admission to hospital that day. She was in your care that day. Later analysis of samples of her blood and urine collected 5-7 hours after her admission to hospital showed relatively high blood and serum levels of morphine, and the expert from the Victorian Institute of Forensic Medicine formed the opinion that these results, together with Eve’s response to naloxone, suggested that a relatively large dose of morphine had been administered to Eve shortly before she was taken to hospital.
17 On 24 November, the paediatrician at Ballarat Base Hospital notified police that the level of opioids in Eve’s urine were consistent with her having been administered morphine based drugs, which she was not prescribed. On 25 November, police executed a search warrant on your home, and in your garage were found ampoules of morphine sulphate which had been prescribed to your son and daughter for palliative care some years earlier.
18 The prosecution brought the case against you on the basis that on 16 November, after the morning carer left, and before Eve’s mother arrived, you recklessly administered morphine to Eve from one of the morphine sulphate ampoules prescribed for your daughter. Based on the paediatrician’s opinion as to the impact of this opioid on Eve, the prosecution case is that had she not received prompt and intensive medical care, she may have died.
19 You entered your plea of guilty on the day your trial was due to start, on 17 February. From the time you were asked in the hospital about giving Eve opioid drugs, through your interviews with police in November 2016 and August 2017, until 17 February, 2020, you maintained that you did not give her any opioid drug. In fact as we now know, your stance on that has continued.
20 There is no basis for me not to consider your plea of guilty as voluntarily given[5]. Further, I find that you had access to the morphine, and had opportunity, when alone in the house with Eve on 16 November, to administer it.
[5]Meissner v R(1995) 184 CLR 132; Maxwell v R (1996) 184 CLR 501
21 The law says that a plea of guilty is an admission of the facts contained in the charge[6]. By your plea of guilty, you have admitted the facts that you recklessly engaged in conduct, namely administering morphine to Eve, that placed Eve in danger of serious injury. At the plea hearing, and again today, you have not disputed the details of the offence.
[6]R v Broadbent [1964] VR 773
22 The law also says that a person may plead guilty for various reasons unrelated to his or her guilt, including in the hope of obtaining a more lenient sentence, or to avoid worry, expense or embarrassment[7].
[7]Meissner v R(1995) 184 CLR 132; Maxwell v R (1996) 184 CLR 501
23 In your assessment for a community correction order ordered by me at the conclusion of the plea hearing, you told the report writer that you denied having committed the offence, and disclosed that you pleaded guilty to be able to move on with your life, and that you believed that Eve’s mother was responsible for the administration of morphine to her daughter.
24 I heard further submissions this morning about what you are reported to have said in the community correction order assessment. The prosecutor submitted that this was a demonstration of “zero remorse”, and that is constituted by your continued denial of the act constituting the offence, and, further, your nomination of Eve’s mother as the perpetrator. Your lawyer has indicated to the court that she has gone through with you the elements of the offence, that you do not seek to traverse your plea of guilty entered before me on 17 February, and that this plea of guilty therefore stands. Having considered those submissions and also the law relating to pleas of guilty generally and in these similar situations, I have decided to treat your plea of guilty[8] in the following ways.
[8]Phillips v R [2012] VSCA 140
25 First, whatever your reasons for pleading guilty, you are entitled to a utilitarian discount for having done so, because your plea saved the community the time and expense of a jury trial, and saved Eve’s mother, and other witnesses, from having to give evidence. This is particularly important in this case, not only for the distress that may well have been felt by Eve’s mother reliving 16 November and the events thereafter, but the saving in cost and inconvenience is very important where Eve and her family have returned to live in the United Kingdom and a video link had been arranged for after court hours here, but the early hours of the morning for Eve’s mother overseas. Further, avoiding Eve’s mother having to deal with the suggestion, if put by your counsel on a trial, that she had been the one to give an opioid drug to her daughter in the 20 minutes she was at your house before she rang 000, or indeed, it is not known, perhaps the suggestion was that during the 000 call she did this, but avoidance of that suggestion is a very significant factor.
26 Next, I do not treat your plea as a sign of remorse or as an acceptance of responsibility for the offending, given what you said in your assessment. What you said is very troubling, particularly the nomination of Eve’s mother as the ‘true’ perpetrator. Remorse is a mitigating factor to be taken into account where it is present.[9] Here, it is fundamentally not present. However, lack of remorse is not an aggravating feature.[10]
[9]DPP v Ristevski [2019] VSCA 287
[10] ibid
27 Your counsel bravely put forward a possible motive on the plea (that it was open to conclude that you administered the morphine because Eve was cramping in pain with a significant gastric complaint). However, there was no evidence from any source to enable such a conclusion to be drawn, and it was an explanation inconsistent with your recent statements to the assessment report writer. So the court is left with no understanding of your motive.
28 Your plea, somewhat perversely, has shown a willingness to facilitate the administration of justice by moving this case to a conclusion without a trial, even if your willingness was just to bring the case to an end for your own purposes. Therefore, I take that factor into account but I treat it as having far less weight than would normally be the case.
29 I turn now to the impact on Eve and her family, which has been enormous[11]. Clearly, Eve was placed in danger of serious injury, and suffered for a time. Fortunately, she has made a full recovery, and has a strong will to live. However, her family, into whose care she returned on discharge from hospital, have suffered not only the immediate aftermath, watching their vulnerable daughter while so gravely ill and affected by opioids, but their trust in any other carer was completely destroyed, and so they felt the need to uproot themselves from this community after 27 years and return to the support of family in the United Kingdom. This has had a huge emotional, psychological and financial toll on Eve’s parents and her 17 year old sister. Her mother has undertaken the mammoth task of co-ordinating Eve’s medical, therapeutic and educational requirements in a new health system. Although her mother says that there is no closure or ending for them because, she says, “the terrible event will never disappear from [their] view”, I do express the hope to them that with this case concluding, they will be able to begin to focus on their future. I take the impact of your offence on them very much into account.
[11] Exhibit B
30 Apart from the utilitarian benefit of your plea of guilty, there are a number of other factors that I must take into account in your favour in deciding the appropriate sentence.
31 I have been told something of your background and personal circumstances, which involve the sad death of your two disabled children, your own ill health, but also include a community of support for you and for the work you have done over many years in the disability sector, both paid and voluntarily.
32 You are now aged 54 and were aged 51 at the time of the offending. You have no criminal record and nothing pending. You are to be sentenced as a person of good character.
33 You grew up in Melbourne with two siblings with whom you and your parents had no contact for many years. You began a lifetime of caring for others when still at school, aged 15, looking after a child with Down’s syndrome. After completing your schooling, you worked for 4 years at a camp catering primarily for deprived children, before moving to Castlemaine and working in childcare, as well as working supervising child access for DHHS. You trained as a nurse at Castlemaine Hospital and worked there for 2 years.
34 In 1992 you met your future husband and subsequently had three children. The eldest, a daughter, is now an adult who is a teacher. Your two younger children were born with severe genetic disabilities. Your next eldest, another daughter, had a non-specific brain injury which led to a very low cognitive capacity such that she required assistance with daily living. She also suffered from severe seizures which became intractable. She developed pneumonia and required palliative care, which you were able to give her at home. She died at home aged 12.
35 Your son was diagnosed shortly after birth with a rare genetic condition which had as some of its consequences chronic heart and kidney defects, moderately severe intellectual incapacity and frequent seizures. He often suffered from pneumonia. He died at home under your palliative care at the age of 8.
36 As I mentioned earlier, both children were prescribed morphine sulphate for their palliative care and you were instructed in its administration, providing it to each of them in their last days.
37 Your husband abandoned the family and left the care of the children to you when your son was not yet one. You later moved to Ballarat with the children and immersed yourself in organisations such as Very Special Kids, Epilepsy Victoria, and the Ballarat Special School. Apart from caring for your own children, you cared for three other disabled children in your home, and after the deaths of your children, you took more children in – 8 or more. Further, your home was a place where families with disabled children were welcome at any time and you assisted many families with respite. This was voluntary and could involve support 24 hours a day. I received many references[12] from families who have been assisted by you, and who continue to trust you with their children, and provide you with important support now. I also received a reference from a young woman[13] who is living with you now and achieving independence in doing so. All of this makes all the more puzzling and troubling, the way in which you have approached the charge for which I am sentencing you.
[12] Exhibit 2
[13] ibid
38 As mentioned earlier, you became Eve’s carer in 2015. In 2015, you were diagnosed with metastatic Crohn’s disease, a lifelong condition which is presently treated with a cancer medication. In 2016, your father died aged 78. In the middle of that year, your mother was diagnosed with pancreatic cancer, and you cared for her from then until her death in November 2018, aged 80. You have also developed a rare inflammatory disease called pyoderma gangrenosum. It follows that you were caring for Eve, for your mother, for other children and managing your own illnesses around the time you committed the reckless conduct endangering Eve.
39 The stress and anxiety of the case has worsened your conditions, and I was told that you were due to have a medical transfusion the day after the plea, and it was for that reason the sentence was adjourned to today. I was also informed that ultimately the Crohn’s disease will require you to have a stoma.
40 The prosecutor submitted that the act of administering the morphine to Eve was an extremely dangerous act that could have had disastrous consequences without good timing and excellent specialist healthcare. He reminded me that although there was not an ongoing impact on Eve, there is a significant one for her family. He referred to your lack of criminal history and your years of caring for disabled children including Eve as attested to in the many character references. Lastly, he noted that the offence to which you pleaded guilty had a maximum sentence half that of the offence with which you were originally charged.[14]
[14] Negligently causing serious injury – 10 years’ imprisonment under s24 Crimes Act
41 In all of the circumstances, the prosecutor submitted that there should be a conviction because of the gross breach of trust, but that a sentence of imprisonment was overly harsh, and the seriousness of your reckless conduct can be adequately addressed with a community correction order with conviction. Despite the concerns raised in the assessment report for the community correction order, he maintained those submissions today.
42 Your counsel on the plea, submitted that in the unusual circumstances of the case, and because of your character, background, and personal situation at the time, a community correction order with a sole special condition of supervision, and no conviction recorded, adequately met the sentencing purposes, with general deterrence having only a limited role he submitted, specific deterrence having none, and, he further submitted, your prospects for rehabilitation being very bright.
43 I can only sentence you to a term of imprisonment if it is the only alternative. I have decided that I do have an alternative to a sentence of imprisonment, but I consider that general and specific deterrence do have roles to play. That means that by my sentence, I must seek to deter others who care for the most vulnerable in our community from committing similar offences, and because of your lack of insight and remorse, and the court having no understanding of why you committed this offence, with your continued connection to caring for vulnerable people, my sentence still has some role to play in deterring you from committing such a reckless act again. On the other hand, your passage through the criminal justice system is likely to assist in deterring you from reoffending.
44 While I accept without qualification your previous good character and the high regard in which you are still held and the vital community support, and absolute support from your daughter, I have some concerns about your rehabilitation being well advanced, as submitted by your counsel. For the reasons I have expressed throughout these remarks, plus the need for my sentence to denounce your criminal behaviour, I have decided that a conviction must be recorded, and that just punishment requires a punitive element to the community correction order. Supervision alone is not sufficient, and so I do intend to impose a condition for unpaid community work.
45 If you agree, I will release you on a community correction order for 2 years. That order will have the conditions that are attached to every order which are: that you must report to and receive visits from Corrections Victoria; must notify Corrections Victoria of any change of address or employment; must not leave Victoria without permission of Corrections Victoria; and must comply with any direction given by Corrections Victoria to ensure compliance.
46 I will also order the special conditions that you be under supervision and that you perform 300 hours of unpaid community work over the period of the order. The work will be subject to a medical clearance from your doctor, given your medical issues, as accepted in the assessment report.
47 If you are ill or there are exceptional circumstances, this order may be suspended for a period of time. If your circumstances change, you may apply to the court for a variation or indeed a cancellation of the order. In either case, you must notify the Community Corrections office, and I recommend you also get legal advice.
48 Yes. Stand up please, Ms Lizzul.
49 If you do not complete a condition of this order including by re-offending, you will be brought back before me to be re-sentenced on the original charge and also be dealt with for the breach of the condition. My options on resentencing will be limited, and that may mean a prison sentence. So do you understand what will happen if you do not complete this order including by re-offending?
50 OFFENDER: Yes, Your Honour.
51 HER HONOUR: Do you agree to being released on a community correction order with these conditions?
52 OFFENDER: Yes, Your Honour.
53 HER HONOUR: All right. Well, just take a seat whilst that order is finally prepared. Thank you.
54 Yes. Thank you. Ms Freijah, you can go with my associate to assist Ms Lizzul if she has any questions.
55 MS FREIJAH: Yes, Your Honour. Thank you.
56 HER HONOUR: So you will now be asked to sign a document which contains these conditions to indicate that you do accept these conditions.
57 All right. So I have now signed that order and it is in force. So you must attend at the Ballarat Community Correction Services within 2 days. You do not need to wait 2 days, you can go there immediately. A copy will be provided to you before you leave court today.
58 So I just formally announce the orders.
59 You are convicted and sentenced on the charge of reckless conduct endangering a person to be released on a community correction order for 2 years on the conditions I previously outlined.
60 I have also signed the disposal order and that will be provided to the prosecution.
61 Are there any other orders?
62 MR MOORE: No, Your Honour.
63 HER HONOUR: Thank you. Ms Lizzul can be released from the dock.
64 Yes. Thank you. Adjourn the court until 9.30 tomorrow.
- - -
0
4
0