Director of Public Prosecutions v Stratton
[2021] VSC 810
•9 December 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0281
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GLENN STRATTON |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Bendigo |
DATE OF HEARING: | 3 December 2021 |
DATE OF SENTENCE: | 9 December 2021 |
CASE MAY BE CITED AS: | DPP v Stratton |
MEDIUM NEUTRAL CITATION: | [2021] VSC 810 |
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CRIMINAL LAW – Sentence – Aid or abet suicide – Elderly father in pain and suffering from terminal illness – Father a longstanding supporter of voluntary euthanasia – Father had determined to end own life, but was unable to fire rifle – Son tried to dissuade, but eventually shot father at father’s pleading – Early guilty plea – Merciful disposition justified – Conviction recorded – Released on adjourned undertaking for 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Hamill | Ms A Hogan, Solicitor for Public Prosecutions |
| For Mr Stratton | Mr S Gardner | Lakey Legal |
HER HONOUR:
Glenn Stratton, you have pleaded guilty to aiding or abetting the suicide of your father, Colin Stratton, on 24 May 2021.
Colin Stratton was born in May 1940. He died a few days short of his 81st birthday. He worked as a linesman for the State Electricity Commission. You were born in 1967, the second of three children from his marriage to your mother, Suzanne, who worked as a nurse. Colin and Suzanne were married for 50 years, and instilled in their children the importance of honesty, hard work, respect for others, and putting family first.
Around 2007, your mother suffered her first stroke, which left her with impaired vision and mobility issues. She died about 8 years later, after suffering a fatal brain haemorrhage. Her ongoing disability, and ultimate death, significantly affected your whole family. After her first stroke, there were many long and painful family conversations about euthanasia and quality of life issues. Both of your parents joined the Dying With Dignity organisation, to help promote euthanasia laws; it was something about which they both felt passionately.
Towards the end of your mother’s life, you came down from Queensland to spend time with her. After she died, you moved back to Victoria permanently, to help care for your grief-stricken father, and to keep him company.
In 2018, your father was diagnosed with an aggressive form of bowel cancer. He was only given a 50% chance of surviving the surgery, due to serious pre-existing heart problems. Although he survived, he spent the rest of his life undergoing chemotherapy, radiotherapy and immunotherapy. He also suffered from a number of other medical conditions that affected his quality of life, including osteoarthritis, Meniere’s disease and hypothyroidism.
Your father made it clear on many occasions that he wanted to end his life at a time of his choosing. He had discussed his wishes with his GP and his family. He had an Advanced Care Directive in place, which expressed his wish to be able to die when and how he wanted, and to be given “the pill” so that he could choose when to go.
On 18 May 2021, only a week before his death, he added a page to his Advanced Care Directive, which said “I do not do this because I am depressive or anything but because I feel now is the right time.” He showed it to your sister, Donna, and asked her to photograph the document, so the family were all “on board” with his decision.
Your father had lost his sense of taste, and the feeling in his hands, due to chemotherapy. He developed numbness in his feet, which affected his ability to garden and to drive. He could no longer enjoy the activities that once gave him great pleasure, and was facing losing his independence as well. In March 2021, he spent 10 days in hospital, due to a fluid build-up in his legs caused by heart failure.
In the weeks leading up to his death, your father had been very unwell, and in constant pain. You and other family members witnessed his decline.
Just before 9:00am on 24 May 2021, your father drove himself to his local medical clinic. Even though he did not have an appointment until that afternoon, he insisted on seeing a doctor immediately. One of the GPs agreed to see him; she was well aware that the pain from his cancer was getting worse, and assumed he had come early for more pain management.
He handed the doctor a copy of his Advanced Care Directive, and asked her for a “suicide pill”. The doctor had spoken with him before about voluntary assisted dying, so was not surprised by his request. She told him she could start the paperwork that day, but the process would take up to two weeks, and his cancer specialist would also need to be involved.[1] Your father did not accept what he was being told, and repeated that he wanted something to kill him that day, as his whole body had “given up”. He told the doctor that if she wouldn’t help, he would go home and shoot himself in the head. Your father appeared lucid, but was fixated on killing himself.
[1]In fact, it is not clear whether your father would have been eligible to participate in the assisted dying process at that time. Although his cancer was incurable, it was clinically stable at the time, and his death was not imminent.
The doctor called you, and you went to the clinic with Donna.
While the doctor was tending to another patient, you and Donna spoke with your father. A clinic staff member overheard your father telling you “Today is my day, I want to kill myself today.” He told you that he had a shotgun at home, and asked you both to help him load the gun so he could shoot himself. Donna refused to do what he asked. You told your father you did not want to, but would help if you could.
By the time the doctor became available again, your father seemed to be even more agitated. He refused to discuss end of life plans any further, saying that he was “sick of talking”. Your father walked out the door, and got into his car. Donna said you had better go with him. The two of you drove off together around 10:30am.
Donna stayed at the clinic, to discuss an end of life plan with the doctor. About 5 minutes after you left, the doctor called triple zero to alert emergency services to the threatened suicide.
After you got home, your father sat in a chair on the veranda. He asked you to collect a rifle and bullet from the shed. You protested, but your father said he would do it himself if you would not.
After collecting the .22 calibre rifle and a bullet, you tried to persuade your father not to shoot himself. But he said he was going to do it that day, with or without your help. You eventually loaded the rifle, and handed it to him. Your father pointed the rifle at his head, but was unable to reach the trigger due to the length of the rifle.
Your father placed the butt of the rifle in your hand, and held the barrel to his forehead. He counted down twice, but each time you said you could not do it. Your father asked for your help, saying “Don’t make me make a bloody mess of it, I can’t do this by myself.” He started counting down again. You told your father that you loved him, and he replied “Likewise”. When your father reached “one”, he closed his eyes and you pulled the trigger, shooting him once in the forehead.
At 10:41am, you called triple zero. By the time the paramedics and police arrived, your father had died from the single gunshot wound to his head.
After telling the police what had happened, you were arrested and taken to a police station. During your formal interview, you made full admissions to what you had done. You told police about your father’s medical conditions, and his Advanced Care Directive. You said that a couple of months earlier, your father had tried to obtain a “peaceful” suicide pill from the internet, but it turned out to be a scam. You described your father as being in a lot of pain recently, and as having “had enough”. You said you had tried to dissuade him from killing himself. You said you eventually pulled the trigger, because your father was begging you to.
Your admissions to police were very valuable, as the forensic tests for DNA and gunshot residue did not implicate you in the shooting.
You were originally charged with murder. You were held in custody for 46 days, including a period of 14 days in pandemic-related isolation, until you were granted bail on 8 July 2021. Whilst you were in custody, you were not able to attend your father’s funeral, or grieve with your family in the period immediately after his death.
Although it is no longer a criminal offence to commit or attempt to commit suicide, it is still a criminal offence to aid or abet another person to commit suicide.[2] The offence reflects the importance of human life. However, the moral culpability of offenders who aid or abet others to commit suicide will vary greatly. An offender who aids or abets for a financial or other ulterior motive would be at the more serious end of the scale. An offender such as yourself, who assists in the suicide of a terminally-ill loved one, would be at the lower end of the scale.
[2]The maximum penalty for aiding and abetting suicide is 5 years’ imprisonment: s 6B(2)(b) Crimes Act 1958.
Your father had a long-held and oft-repeated desire to end his life at the time of his choosing. He believed firmly in personal autonomy about such matters. Even though his death from illness was not imminent, after a long and courageous battle he had come to the decision that his quality of life had diminished to the point where he did not want to go on. Frustrated at being unable to die peacefully in his garden with a pill, he had decided to end his life that day with a rifle. You did not encourage him, when he said he wanted to shoot himself; on the contrary, you tried to dissuade him from doing so. But he was adamant. You knew that your father was a strong and determined man, someone who would try to follow through on his intentions, even if he ended up botching the job. You were placed in a totally invidious and unenviable position, when he kept asking for your help. The psychological pressure on you must have been enormous. As you told the police, your father had always been there when the family needed him, and you would have done anything for him. You finally pulled the trigger spontaneously, out of love, and a respect for his wishes, not out of any self-interest.[3]
[3]You cannot benefit financially from this offence, as you have lost any legal entitlement to part of your father’s estate, because you were involved in his death.
These events have been extremely challenging for many people, some of whom are still struggling to accept, or make sense of, what happened. However, your immediate family members not only understand why you acted as you did, they are also highly supportive of you. Victim impact statements were provided by your brother, Searle, your sister, Donna, and Donna’s two adult sons (both of whom lived for a while with you and your father). They all describe their love and admiration for your father, who was clearly an important and influential person in all of their lives. They all miss him greatly. But they also understood how important it was for him to be able to end his life on his own terms, when the pain and burden of illness became too great. They describe your actions in helping your father achieve his wishes as loving, courageous and selfless. They hope that voluntary euthanasia will become more accessible in the future, so that other families will not have to go through what they have gone through.
I turn to consider your personal circumstances. You are now 54 years old. You had a stable upbringing in a loving and close-knit family.
After leaving school at the end of year 10, you worked in various manual jobs, before completing a carpentry apprenticeship. You have worked as a carpenter since your thirties, and run your own business.
You were married in 1999, and have five children. You are now divorced, and your adult children live in various places around Australia. Your youngest son lives with you.
You moved back to Victoria to care for your elderly parents during times of hardship, putting their needs before your personal life in doing so.
According to Patrick Newton, the clinical and forensic psychologist who assessed you for the purposes of sentencing, you are experiencing ongoing post-traumatic stress disorder, which has developed in response to the trauma of shooting your father. You relive the incident almost daily, which is highly distressing and sometimes debilitating. You have become extremely reluctant to socialise or engage in activities, in case you become overwhelmed by your emotions. You are in a state of emotional confusion. On the one hand, you experience great shame and guilt at what you have done; on the other hand, you feel angry about the circumstances that led to your being involved in your father’s death. You also have moderately severe depressive symptoms, which have been exacerbated by your intense grief at your father’s death. Mr Newton also believes that your alcohol consumption has increased to a harmful level, as part of your way of trying to cope with these events.
He believes that you would benefit from undertaking trauma-focussed treatment, and from participating in education and counselling to reduce your levels of consumption of alcohol and recreational cannabis.
There is no dispute that Verdins principles 5 and 6 are engaged in this case, by reason of your mental state. That is to say, not only would imprisonment be more onerous for you than for a person in normal mental health, but also your mental state would be likely to deteriorate in custody.
After the prosecution dropped the murder charge, you pleaded guilty to the current charge at the first committal mention; that was the earliest opportunity to do so. You are entitled to a discount on the sentence to be imposed upon you in recognition of your guilty plea. The utilitarian value of your plea is particularly significant, given the effect of the COVID-19 pandemic on the criminal justice system. Your plea has also facilitated the course of justice. The community has, by your plea, been spared the time and cost of a trial. Because of your plea, family and friends have been spared what would have been a traumatic trial for all concerned.
The issue of remorse is somewhat complicated in this matter. You have accepted responsibility for your actions, and feel guilt and shame for your role in your father’s death. However, you also believe that you were placed in this situation because of failures in “the system”, that meant your father could not access voluntary assisted dying. Where the offending has occurred not because of anger, greed or other base motives, but rather from love for the victim and a desire to end their suffering, issues of remorse will often be complicated, and a modified approach to remorse may be appropriate.[4]
[4]DPP v Joseph Sugar [2020] VSC 338, at [20].
There is little, if any, need for specific deterrence or community protection in this case, for the following reasons. You have no relevant criminal history,[5] and no outstanding charges. The offending was an aberration, which occurred in specific circumstances that are highly unlikely to be repeated. You have very good prospects of rehabilitation. You have been a hard-working and responsible member of the community, and are well-supported by your siblings and nephews.
[5]You appeared before the Magistrates’ Court on a couple of occasions when you were in your late teens, in respect of minor property-related offences. Those offences are not relevant for present purposes, save to deprive you of the opportunity to argue that you have a completely unblemished record.
However, there is still a need for general deterrence in a case such as this, in order to acknowledge the seriousness with which society regards taking a human life.
You have already been punished for this offending in a number of ways. You were originally charged with murder, and had the threat of a murder conviction and sentence of imprisonment hanging over your head for many months. You spent 46 days on remand in prison, in particularly arduous conditions due to the pandemic. You have suffered and continue to suffer in a range of extra-curial ways, including through the serious decline in your mental health. The prosecution does not suggest that you should spend further time in prison.
This is a case where justice should be tempered by mercy. There would be no benefit to you or society in sending you to prison for this offence.
It is very much in your interests to seek counselling and treatment for the mental health and substance abuse problems that have arisen as a result of this events, so that you can move forward with your life. However, those problems played no role in this offending, and this is not a case where the offender needs to undertake such treatment in order to reduce the threat of future offending, or to protect the community. You have made arrangements to start receiving treatment with a mental health practitioner; you should pursue such treatment for as long as is needed to address the trauma that has led to your current mental health problems. You should also seek help to reduce your over-reliance on alcohol and cannabis. But I am not persuaded that you require the more rigorous restrictions of a community correction order to address these issues.
Having regard to all these matters, I propose to record a conviction, and to release you on an adjourned undertaking for 2 years. The undertaking starts today, and is in force until 8 December 2023. During that period, you must not commit any offences, must undertake counselling and treatment for your mental health and substance abuse problems, and must otherwise be of good behaviour. I will require you to appear before me in 6 months’ time, to ensure that you are complying with the counselling and treatment conditions. If you breach any of the conditions of the undertaking, you may be punished for the breach as well as the original offending.
Had you not pleaded guilty, I would have sentenced you to a period of imprisonment of 6 months.
Further, I declare the period to be reckoned as already served under this sentence is 46 days, not including today’s date. I direct that there be noted in the records of the court the fact that such a declaration was made and its details.
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