Director of Public Prosecutions v Morley
[2024] ACTSC 124
•29 April 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Morley |
Citation: | [2024] ACTSC 124 |
Hearing Date: | 17 April 2024 |
Decision Date: | 29 April 2024 |
Before: | Mossop J |
Decision: | 1. The report of Dr Tuly Rosenfeld dated 9 April 2024 and the oral evidence given on 17 April 2024 is admitted in evidence in the proceedings. 2. On the charge of murder (CAN 7650/2023), the offender is convicted and sentenced to imprisonment for nine years commencing on 31 July 2023 and ending on 30 July 2032. 3. The non-parole period commences on 31 July 2023 and ends on 30 January 2028. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – family violence offence – offender murdered wife and then tried to kill himself – where victim suffering from early stages of dementia – plea of guilty – consideration of offender’s age and infirmity – importance of general deterrence – sentence of imprisonment imposed |
Legislation Cited: | Crimes Act 1900 (ACT), ss 12, 14 Crimes (Sentencing) Act 2005 (ACT), ss 34B, 35, 36 Corrections Management Act 2007 (ACT), s 205 Mental Health Act 2015 (ACT) |
Cases Cited: | Cooper v R [2021] NSWCCA 65 DPP v Calhoun (a pseudonym) [2023] ACTSC 189 DPP v Henry [2023] ACTSC 384 DPP v Kien [2000] VSC 376; 116 A Crim R 339 DPP v Myers (a pseudonym) [2023] ACTSC 142 Director of Public Prosecutions (Vic) v Rolfe [2008] VSC 528; 191 A Crim R 213 R v Blaauw [2008] VSC 129 R v Dowdle [2018] NSWSC 240 R v Eckersley [2021] NSWSC 562 R v Ratke [2023] NSWSC 1310 R v Ritchie [2003] NSWSC 864 R v Snowden [2022] ACTSC 186 |
Parties: | Director of Public Prosecutions Donald Morley ( Offender) |
Representation: | Counsel S Jerome ( DPP) J White SC and N Deakes ( Offender) |
| Solicitors Director of Public Prosecutions Legal Aid ( Offender) | |
File Number: | SCC 307 of 2023 |
MOSSOP J:
Introduction
1․On 1 December 2023, the offender, who is now 93 years old, pleaded guilty to one count of murder, contrary to s 12 of the Crimes Act 1900 (ACT) (CAN 7650/2023). The maximum penalty is life imprisonment. He murdered his wife, Jean Morley, on 30 July 2023.
Facts
2․The offender was married to his wife, Jean Morley, for 69 years. They had been in a relationship since they were both 16 years old. The two moved from England to Australia together in 1970 and lived in the Australian Capital Territory for over 45 years. The couple lived a happy and prosperous life together in Canberra and enjoyed a strong network of lifelong friends.
3․Prior to retirement, the offender had worked as a Master Tooler at the Royal Australian Mint and subsequently as a cleaner. Jean had worked as an administrative assistant to an accounting firm. The couple did not have any children or family close by in Australia. The couple were known to be very loving towards one another and did everything together. The offender always used to call Jean “My Darling”.
4․Jean was known to have been suffering from dementia for at least 12 months. She often experienced difficulties with forgetting words and performing tasks such as getting dressed.
5․The offender suffered from numerous skin cancers on his scalp, was hard of hearing and had a history of heart attacks. He was responsible for the cooking, cleaning, gardening and transportation, but his health was declining. He had confided to a lifelong friend that one of his hospital appointments had been cancelled because he could not leave Jean on her own if he had to stay in the hospital.
6․On 14 June 2023, Jean was medically examined by a Dr Catherine Horan, who tested for cognitive impairment. The Mini Mental State Examination results indicated that she had mild cognitive impairment. Dr Horan made a referral to Ms Donna Bainbridge for Jean to receive social work assistance.
7․On 5 July 2023, Dr Horan saw Jean on her own. Dr Horan noted that Jean had limited insight into the vulnerabilities of living at home.
8․Between 26 June 2023 and 31 July 2023, Ms Bainbridge visited the couple at their home and spoke to them over the phone about home care packages and support options available to them. During these conversations, the offender discussed his difficulties in completing home tasks, difficulties in driving to medical appointments outside his local area and voluntary euthanasia. The offender told Ms Bainbridge, “We’ve lived too long”.
9․On the morning of 31 July 2023, a registered community nurse, Ms Hayley Butler, visited the couple’s home to tend to the offender’s skin cancers on his scalp and injuries from a recent fall. Prior to attending the couple’s home, at about 9:20am, Ms Butler rang the home phone, but the call went unanswered.
10․Upon arrival, Ms Butler knocked on the back laundry door and rang the home phone again, but both went unanswered. Ms Butler tested the wooden door handle and found it unlocked but did not enter the house. She departed a short time later.
11․At about 2:30pm, Ms Butler returned and observed the garage was partially open with a car now visible. She knocked on the back door. After a few minutes, the offender came to the door and opened it. Ms Butler observed the offender to be sunken and quiet as he welcomed her inside. She walked through the kitchen to the dining room. The offender continued walking in the direction of the bedrooms. Ms Butler observed two handwritten notes on the dining table. She briefly read the notes and saw that one referred to suicide and forgiveness and the other referred to contacting someone.
12․The offender returned to the dining room and Ms Butler asked about the notes. The offender dismissed her concern and collected both notes before putting them down onto a nearby table.
13․Ms Butler asked what had happened that day as she had been trying to contact him. The offender replied that he had gone out that morning. Ms Butler asked where Jean was and the offender shook his head from side to side. Ms Butler said that she was there to help and the offender replied, “I have done a terrible thing” and started to cry.
14․Ms Butler asked the offender where Jean was and if she could see and speak with her. The offender replied that Jean was in the bedroom and that she could do neither. Ms Butler convinced the offender to take her to the bedroom. In the bedroom, Jean was lying on her back with her head on a pillow and the blankets up to her neck. She had a yellow complexion and her mouth was open. Ms Butler did not touch Jean as she believed that she had died.
15․Ms Butler saw two kitchen knives on top of the bedside table, both of which had bloodstains on their blades. Ms Butler led the offender out of the room and asked what had happened to Jean. The offender replied, “I suffocated her with a pillow last night”. He explained that he had tried to kill himself by stabbing himself in the heart and lifted his shirt to show one wound on the left hand side of his chest. There was fresh and dried blood on his chest area. He then showed Ms Butler other marks on his wrists where he stated that he had tried to stab himself. The offender said, “You’d think that would’ve killed me. I took pills last night. I went to the pharmacy this morning to get more pills to kill myself”.
16․Ms Butler told the offender that they needed some more help, but he stated that he did not want anyone else to know. The offender stated that they did not have any funeral plans. He then walked back to the bedroom, sat next to Jean and said, “That’s her there, my angel”.
17․Ms Butler ushered the offender back to the living room and discreetly contacted emergency services. She reassured the offender and hugged him while he cried. During this time, the offender recalled to Ms Butler that he had suffocated Jean at about 9:00pm the previous night.
18․At about 2:50pm, police arrived and arrested the offender. At about 2:55pm, members of the ambulance service arrived and treated the offender’s injuries. The offender told an ambulance officer that he had taken six blood thinning tablets and 12 heart medication tablets in an attempt to overdose to harm himself. The offender asked the ambulance officer why he had not died. The ambulance officers decided to transport the offender to the Canberra Hospital for treatment and invoked their powers to detain him for a mental health assessment.
19․At about 3:50pm, the offender was treated for two wounds to his chest which were deemed to be not penetrative and minor in nature.
20․Police executed a search warrant of the couple’s house, and seized the note previously located by Ms Butler. The note read:
Please don’t call this “murder”-suicide. After 69 years married we were both afraid of the future. Sorry to upset all our family + friends. This wasn’t easy for me, especially my darling.
21․Police also located a blood-soaked towel on the floor of the laundry as well as a flannel shirt soaking in bloody water in a bucket in the laundry sink.
22․At about 7:10pm, Dr Thomas Russel, a forensic medical officer, examined the offender and concluded that he was unfit to consent to a forensic procedure order. At about 11:00pm, the forensic procedure commenced and no obvious signs of injury consistent with self-defence or a physical altercation were identified. The offender then remained under police guard at the Canberra Hospital.
23․On 3 August 2023, the offender participated in a recorded interview with police. The offender stated that he and Jean were not interested in life anymore and that they “didn’t get enjoyment out of things that they … used to”. The offender stated that the pair had previously told a government helper that they would both like to go to bed and not wake up.
24․The offender explained that he was hard of hearing and had to rely on Jean for telephone calls. The offender said that he was afraid of paying bills online.
25․The offender stated that the couple had attended a lunch with lifelong friends, which they had been doing for 40 or 50 years together. When the couple returned from lunch, Jean said that she did not enjoy herself. The offender replied, “Neither did I”. The offender explained to police that he thought the couple had got to the end when they could not even enjoy their friends anymore. The offender stated that he went to bed and left Jean watching television. The offender then decided to end both of their lives. He decided to end Jean’s life and put a knife in his heart to end his own life.
26․The offender stated that Jean came to bed about 30 minutes later. The offender immediately put a pillow over her face and suffocated her. When the offender saw that she was dead, he went to the kitchen, took a big, thin bladed knife and put it against his chest. He played with the knife for a while but did not have the courage to plunge it into his chest. The offender got a smaller knife from the kitchen as he thought it would be easier. He started “digging gently at his heart”. The offender then started to bleed, and he hoped to bleed to death. The offender had put a plastic sheet and a thick towel on the bed as he knew there would be a mess. However, the offender lay awake all night in the bed next to Jean and blood went everywhere.
27․The offender recalled that he was still alive the following day, so he wrote the two notes and left the doors unlocked so people could get in. The offender played with the knife but could not do it. His hands were caked in blood and he eventually thought that he could not proceed with killing himself with the knife. He decided to kill himself by overdosing on sleeping tablets. He washed himself, put on fresh clothing and went to the chemist.
28․At about 1:30pm, the offender parked at the chemist door and was greeted by the pharmacist, who advised that the pharmacy would re-open at 2:00pm. The offender sat in his car until the chemist opened. He bought his sleeping tablets and returned home. In the meantime, Ms Butler had arrived at his house and let herself in. He recalled that she had seen the notes that he had written.
29․The offender stated that he wished that he could have had those tablets and that, when he saw Jean dead, he “immediately wished that he hadn’t”.
30․On 18 August 2023, the offender participated in a supplementary police recorded interview. The offender was asked for further detail about how he had killed Jean. He explained that it was 9:00pm at least when Jean came to bed. He stated that when Jean laid on her back on the bed it was easy to put his pillow over her face. He stated that he held the pillow over her face with his two hands for about two minutes and that she had struggled a bit. Jean’s right arm was going up and down. The offender stated that he held it firmly over her face while he knelt across her body. He stopped when Jean laid still.
31․An autopsy concluded that the cause of death was suffocation, based upon the history that had been given and the absence of a medical or toxicological cause of death. There were no specific findings to indicate that her death must have been due to suffocation. Jean was in apparent good health for her advanced age, although there were brain changes in keeping with the degree of Alzheimer’s disease consistent with her described behaviour. There were some minor injuries to her limbs which may have been the result of flailing actions or may have been sustained by other means either before or during the suffocation process.
Objective seriousness
32․An assessment of the objective seriousness of the offending must take into account the following matters:
(a)the victim was particularly vulnerable, being elderly and suffering from dementia;
(b)the victim had not asked to be killed or encouraged the offender to kill her;
(c)the offending involved a gross breach of trust, being killed by her husband and in her own home while she lay in bed;
(d)the offending involved limited planning or premeditation;
(e)the offending involved an act of force and the overcoming of the resistance of the victim; and
(f)the offending was not motivated by malice, but instead motivated by a desire on the part of the offender for both members of the couple to die, in circumstances where they were very old and their quality of life was declining.
33․Having identified these features, it is not a case in which it is useful to put the offending on a scale of gravity for the offence of murder.
Subjective circumstances
34․Some of the personal circumstances of the offender have been outlined earlier as part of the Agreed Statement of Facts.
35․The offender was born in England, the youngest of his parents’ four children. He had a positive childhood and a close family unit. During the Second World War, he lived with extended family in a nearby village but maintained contact with his family.
36․He and his wife moved to Australia when he was 40 years old. He maintained contact with his family but for some time has had no living relatives.
37․He met his wife when he was 16 years old. They married at the age of 23. The couple had a fulfilling marriage. They had no children. Shortly after moving to Australia, they purchased a house which they owned and had lived there together for 53 years. He conveyed to the author of the pre-sentence report his attachment to the neighbourhood and pride in his home.
38․He has a close network of long-standing friendships, although a collective decision was made amongst the friend group to cease regular gatherings shortly before the offence. He was a good snooker player, playing at the Burns Club for 40 years.
39․The offender had a stable history of employment in the engineering industry in England. He worked at the Mint up until the age of 58. He then worked as a cleaner and supervisor until the age of 65, when he retired. In his discussion with the author of the pre-sentence report, he reflected on his pride and personal satisfaction from his work.
40․He described his wife as being in the early stage of dementia and deteriorating quickly. She had difficulty in getting into bed and putting on her nightclothes. She was very depressed. She was not able to operate a television or a microwave. She would complain if he left her for even a short period of time.
41․The offender has a range of medical conditions. They are spelt out in some detail in the report of Dr Tuly Rosenfeld, a geriatrician, who indicated that he has a number of significant medical problems, including:
(a)large coronary artery disease with coronary artery bypass grafts;
(b)heart failure;
(c)atrial fibrillation with the need for anticoagulants to prevent stroke;
(d)heart valve replacement;
(e)brain disease with multiple strokes and loss of vision;
(f)vascular dementia; and
(g)invasive malignant squamous cell cancer with erosion into and through the skull with complicating venous thrombosis affecting major cerebral veins.
42․He has stated that he does not wish to take medications as he “would like to die”.
43․Although the life expectancy of a 93-year-old man in Australia is 3.58 years, Dr Rosenfeld considered that, as a result of the conditions from which he suffers, the offender is very likely to suffer from adverse events, complications, increasing morbidity and likely death in a period of weeks or months. As a consequence, he indicated that the offender’s life expectancy is not greater than three to six months.
44․The offender told Dr Rosenfeld that the sooner he dies, the better and that there is no use taking medication that may keep him alive. He was aware that without his medication he could die.
45․The offender has been remanded in custody and, at the time of the sentencing hearing, was detained at the North Canberra Hospital as a result of orders for his involuntary detention made under the Mental Health Act 2015 (ACT) since 31 July 2023. These orders arose out of his ongoing risk of self-harm. The current psychiatric treatment order is due to expire on 7 May 2024. Today, he is receiving palliative care at the Clare Holland House, a hospice.
46․He has been assessed by a number of psychiatrists while at the North Canberra Hospital. The recorded diagnosis is “grief”.
47․He is currently accepting only palliative treatment.
48․Dr Rosenfeld expressed the opinion that, as a consequence of age and vascular brain disease, the offender had an impairment of his executive brain function, which made it more difficult to address the multiple problems that he and his wife faced, including his own need for medical attention and the difficulties of attempting to navigate the system for aged care support.
Criminal history
49․The offender has no criminal history.
Plea of guilty and assistance
50․He pleaded guilty on the seventh mention in the Magistrates Court. He never entered a plea of not guilty. This would usually attract a discount of 25 percent. However, the prosecution submitted that, in light of his admissions, including admissions to police, the prosecution case was “overwhelmingly strong” for the purposes of s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) (CS Act). I accept that submission. That means that it is not open to make a “significant reduction” in the sentence because of the plea of guilty. However, a reduction of no more than five percent is possible: R v Snowden [2022] ACTSC 186 at [48]; DPP v Myers(a pseudonym) [2023] ACTSC 142.
51․The offender was absolutely frank and cooperative with police. The offender’s admissions made to police in relation to the offending were significant in circumstances where the autopsy results would otherwise have been inconclusive, but it is important to recognise that there was other evidence in the form of admissions and the notes that was indicative of murder. In light of the assistance given to police, a reduction in sentence under s 36 of the CS Act is available. In my view, a combined discount under ss 35 and 36 of 25 percent is appropriate: see to similar effect DPP v Calhoun (a pseudonym) [2023] ACTSC 189 at [64]; DPP v Henry [2023] ACTSC 384 at [66]-[67].
Time in custody
52․The offender has been remanded in custody since 31 July 2023. That makes 31 July 2023 the relevant backdate date.
Ruling on evidence
53․I have referred in the course of these reasons to the evidence of Dr Tuly Rosenfeld, a geriatrician, as to the offender’s state of health. That report was not served in accordance with the directions made by the court. Further, in circumstances where it was not going to be served in accordance with the court’s directions, advance notice of the intention to serve it and the matters to be addressed in it was not given to the Director.
54․In many cases, that would result in either the exclusion of the report or the adjournment of the proceedings. In the present case, the Director sought an adjournment of the proceedings so as to allow a responsive report to be obtained. I refused the adjournment at the sentencing hearing for reasons given at the time.
55․Dr Rosenfeld then gave evidence on a voir dire, subject to the objections of the Director. Following the giving of that evidence, the Director maintained only the single objection based upon late service. In my view, the evidence should be admitted notwithstanding the late service of the report. That is because the report is relevant, useful and not significantly prejudicial to the position adopted by the Director, having regard to the manner in which counsel for the offender submitted it should be used. In my view, having regard to the perilous health circumstances of the offender, it would be wrong to proceed to sentence him without the benefit of this information and wrong to further adjourn the proceedings to allow a further report to be obtained in circumstances where it is unlikely to significantly alter the court’s assessment of the subjective circumstances or the sentence imposed.
Consideration
56․Having come to Australia at the age of 40, the offender and his wife Jean lived the Canberra dream – a happy married life, with stable employment in a home that they owned and a network of friends. They did remarkably well to maintain their independence until the age of 92.
57․The death of the victim was a tragic end to the couple’s long and happy life together. The sentence that the court imposes today will be a sad conclusion to offender’s long and otherwise good life.
58․Unfortunately, the couple had no younger people involved in their life, such as children or extended family, to assist them directly or to help them to engage with the various support services that would have been available to them or to have made the transition to supported accommodation of one sort or another. They had suffered over a number of years an accumulation of difficulties managing as very old people and had become unhappy and unable to get enjoyment from life. As Jean’s dementia affected her, the burden on the offender of caring for her and running the household increased. It appears that, by the time of the murder, the offender had passed the point where he was able to recognise the potential for less independent living and, in his own mind, saw his actions directed to his wife and his own subsequent death as a way of solving the problems that the couple faced. I accept the evidence of Dr Rosenfeld that the lack of support available involved a “very tragic situation” and that the offender was “unable to see a way though” the problems faced by him and his wife.
59․Although counsel for the offender disavowed a contention that there was a causal link between the offender’s brain disease and the offending, I do consider that his age and medical conditions provided important context for the offending in that the offender lacked the capacity, without assistance, to address the multiple problems that he and his wife faced. It was in those circumstances that he came to think that death, including the involuntary killing of Jean, was a way out.
60․The killing was not in accordance with the wishes of the victim, but was not motivated by malice. It was motived by a desire for both members of the couple to exit the world in circumstances where the offender, by reason of age, infirmity, social isolation and a lack of social support, came to fear the future and believe, briefly, that this was an acceptable option. It was, nonetheless, for the purposes of s 34B of the CS Act, a family violence offence committed in the victim’s home.
61․Murder remains murder, notwithstanding the age or infirmity of the perpetrator or the victim. Murder is the gravest denial of individual autonomy. Fundamental to the exercise of sentencing for murder is the need for the law to protect, and to be seen to protect, the sanctity of human life. That need is all the more important when the victim is particularly vulnerable as a result of cognitive decline. The protection of the vulnerable is one of the fundamental rationales of the criminal law. Even in sad circumstances of age and infirmity, where there has been a regrettable failure of social support, a sentence imposed for murder must send a message to the community that nobody, however desperate things get, is justified in taking it upon themselves to commit murder. Any other approach carries with it the socially unacceptable risk of abuse.
62․So far as the purposes of sentencing are concerned, for the reasons I have just indicated, general deterrence remains an important sentencing consideration, particularly as the population of the elderly increases. Specific deterrence and rehabilitation of the offender are not significant sentencing considerations, as I accept that, as a result of age and his very great remorse, there is no prospect of further offending. Given the offender’s very limited life expectancy and the likelihood that, in any event, he would spend the balance of his life in some form of care facility, punishment is not a significant sentencing consideration. However, denunciation and recognition of the harm done to the victim are important considerations. For the reasons I have given, even in extreme circumstances of age and infirmity, the forceful murder of one’s non-consenting spouse must be denounced and the manifest harm done to Jean, who lost her life, must be recognised, even in circumstances where she was elderly and cognitively declining.
63․I am satisfied, having considered the available alternatives, that only a custodial sentence is appropriate.
64․The length of the sentence actually imposed is of limited relevance to the offender personally because of his very limited life expectancy. Any sentence involving a further period of full-time detention will, effectively, be a life sentence. The burden of imprisonment upon him due to age and ill health will be of limited significance because he will most likely, in any event, spend it in a hospital or hospice.
65․The parties provided a number of decisions relating to charges of murder or manslaughter where courts have addressed unlawful killing where there are strong mitigating circumstances relating to the age of the offender or the circumstances of the victim.
66․Counsel for the offender submitted that particular regard should be had to the decision in R v Eckersley [2021] NSWSC 562, a case in which a woman of “otherwise impeccable character” had killed her 92-year-old, very ill and disabled mother by putting barbiturates in her food. She was found guilty of manslaughter rather than murder as a result of substantial impairment, pursuant to the equivalent of s 14 of the Crimes Act1900 (ACT). The killing was described as occurring “in a context where her faculties were substantially impaired and was both done for love and as a result of despair”. Beech-Jones J was not satisfied that no penalty other than imprisonment was appropriate and imposed a two year community correction order.
67․A similar outcome was achieved in R v Dowdle [2018] NSWSC 240.
68․A charge of manslaughter by suicide pact was dealt with by Cummins J by a wholly suspended sentence of two years’ imprisonment in Director of Public Prosecutions (Vic) v Rolfe [2008] VSC 528; 191 A Crim R 213.
69․However, the sentences for murder to which I was referred all reflect much greater sentences, even though each had, to a greater or lesser extent, unusual circumstances of age or relationship: DPP v Kien [2000] VSC 376; 116 A Crim R 339; R v Ritchie [2003] NSWSC 864; R v Blaauw [2008] VSC 129; Cooper v R [2021] NSWCCA 65; R v Ratke [2023] NSWSC 1310.
70․In my view, in the circumstances of this case the appropriate starting point is a sentence of imprisonment of 12 years, reduced to nine years on account of the plea of guilty and the assistance given to authorities.
71․Having regard to the length of the sentence, an intensive correction order is not available. I do not consider that a wholly suspended sentence of imprisonment would properly reflect the objective gravity of the offending. In those circumstances, the sentence will be served by full-time imprisonment. The non-parole period will be a period of four years and six months, which, even though only 50 percent of the head sentence, is a period well beyond the statistical life expectancy of a 93 year old.
72․Although it is not a matter for the court to determine or to influence in any way, the imposition of the sentence may not make a significant difference to the offender’s actual circumstances. He is presently detained at a hospice. Although there are various options available to the Director-General for the detention of old and sick prisoners, because of his grievous state of health, short life expectancy and the power of the Director-General to grant extended leave for the purposes of palliative care under s 205 of the Corrections Management Act 2007 (ACT), it may be that he simply remains in a hospital facility or hospice until he dies.
Orders
73․The orders of the Court are:
1.The report of Dr Tuly Rosenfeld dated 9 April 2024 and the oral evidence given on 17 April 2024 is admitted in evidence in the proceedings.
2.On the charge of murder (CAN 7650/2023), the offender is convicted and sentenced to imprisonment for nine years commencing on 31 July 2023 and ending on 30 July 2032.
3.The non-parole period commences on 31 July 2023 and ends on 30 January 2028.
| I certify that the preceding seventy-three [73] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 1 May 2024 |
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