Director of Public Prosecutions v Sugar

[2020] VSC 338

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2020 0026

DIRECTOR OF PUBLIC PROSECUTIONS

v 

JOSEPH SUGAR

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2020
DATE OF SENTENCE:	15 June 2020
CASE MAY BE CITED AS:	DPP v Sugar
MEDIUM NEUTRAL CITATION:	[2020] VSC 338

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CRIMINAL LAW – Sentence – Attempted murder – Elderly offender no longer able to care for his elderly wife who was suffering from severe Alzheimer’s disease – Offender devastated at prospect of separation – Attempted to peacefully end the lives of his wife and himself with overdoses of insulin – Offender aged 88 years – Previous good character – Merciful disposition justified – Conviction recorded – Released on adjourned undertaking for 2 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J Lewis	Solicitor for Public Prosecutions
For Mr Sugar	Mr T Wallwork	Efron & Associates

HER HONOUR:

1. Joseph Sugar, you were born in May 1932, in Hungary.  Your father had been injured in the First World War, and died when you were six.  You and your brother grew up during the Second World War, and the subsequent Russian occupation, in circumstances of considerable hardship.  Your schooling ended in your early teens.

1. After the war, you emigrated to Australia as a displaced person when you were 20.  You worked hard to learn English, and did various jobs to support yourself. 

1. In the mid-1960s, you met Heather, the woman whom you still describe as the love of your life.  Together, you had two children, Audrey and David, who now have children of their own.  You and Heather have been married for more than 50 years, in a relationship which others have described as loving and supportive.

1. You and Heather worked hard throughout your lives, building up a business operating motels in Victoria and New South Wales.  At the time of this offending, you had both retired, and were living in a retirement facility in Hawthorn East.

1. Heather’s family has an extensive history of both Alzheimer’s disease and dementia, and she watched both of her parents suffering, and eventually dying, from those illnesses.  As a result, she frequently expressed concerns to her family members about her own fears of suffering from the same fate.

1. Family members first started noticing issues with Heather’s memory around 2010, when she was in her mid-60s.  She began forgetting when and where to pick up her grandchildren from school, where she lived, and recent family events.  Around July 2013, she was formally diagnosed with Alzheimer’s.  Her health continued to deteriorate, and in December 2014, the two of you moved into the Hawthorn East retirement village.

1. You have health problems of your own.  You suffer from pancreatic cancer, and have a history of serious heart problems which have required multiple operations.  A type-2 diabetic, you need to inject yourself with insulin on a daily basis.  You were 86 at the time of these events.

1. Heather’s health eventually deteriorated to the extent that she could no longer wash or dress herself, control her outbursts, or recognise her family.  She was entirely dependent on others – primarily you.  Concerned that you may not be able to keep caring for her, you eventually made plans to move to an aged care facility, where she would be placed in a secure dementia ward, separated from you.  The move was due to take place on Monday, 17 December 2018.

1. Sometime during the night of Saturday, 15 December 2018, when you and Heather were both in bed, you injected a large dose of insulin into Heather.  You then injected a large dose into yourself, before lying down next to Heather.  You believed that the insulin you had injected would result in peaceful deaths for both of you.

1. On the Sunday morning, you woke up to discover that you were both still alive.  Heather was unconscious and breathing shallowly.  After about 45 minutes, you rang an emergency bell and informed the operator that you needed an ambulance for your wife, as she had intentionally taken an overdose of your insulin.  Over the next few hours, you repeated that story to various paramedics and doctors, as well as to your daughter, Audrey. 

1. You also told people that you had not had your insulin for the day.  That was discovered to be untrue, when a doctor examined you at the hospital and found that you also had an excessive amount of insulin in your bloodstream.  The police were contacted and began an investigation.  On the Sunday evening, you were arrested for attempted murder.  You remained under police custody in hospital for three days.

1. Later on the Sunday evening, one of the police officers discovered some torn pieces of paper in the toilet bowl near your apartment at the retirement village.  One of the notes was addressed to your daughter, and in the following terms:

I am very sorry to do this to you and David.  I have decided on my own will to pump some insulin into myself and your mother, hoping that will solve our problems.  I would prefer to end this peacefully.  Love to you and David.

1. The fact that you had written those notes demonstrates some degree of pre-planning.

1. Although it initially seemed likely that Heather would die from the excessive insulin injection, her condition gradually improved.  She is now living in the high care wing of the aged care facility.

1. Audrey and David have both written very eloquent victim impact statements, which clearly demonstrate their love for both of their parents, and their great sadness at the situation in which the family now finds itself.  They speak of the intelligent, loving, active, funny and resourceful woman Heather was, before Alzheimer’s robbed her of her personality and her dignity.  They describe Heather’s fear of losing her mind, like her parents had, and how she had often expressed the wish that she wanted to be “put out of her misery” if she ended up like them.  They are immensely sad that, exhausted from the great stress of caring for Heather yourself, and fearing that you would be separated from her when you moved into the new aged care facility, you decided that the only option was to end things peacefully for both of you.

1. They acknowledge that the police and prosecuting authorities have behaved in a compassionate manner, but they just want the nightmare of these criminal proceedings to be over, so that the family can spend what little remaining time they have together.

1. You are now 88 years old.  You have never been in trouble with the police before.  You have worked hard throughout your life, and been devoted to your family.  You are entitled to rely on your previous good character as a mitigating factor.

1. Since the offending, you have found being physically separated from Heather, with limited visiting rights, extremely distressing.  You have also been diagnosed as suffering from a mild, but chronic, form of persistent depressive disorder.

1. You were charged with attempted murder in December 2018.  After being committed to stand trial in this court, your trial had been listed for 28 September 2020.  You did not plead guilty until 25 May 2020, so it was not an early plea.  However, you are entitled to a discount on the sentence to be imposed upon you in recognition of your guilty plea, and its utilitarian value.  Your plea has facilitated the course of justice.  The community has, by your plea, been spared the time and cost of a trial.  There is an additional benefit to the justice system in people pleading guilty during the current coronavirus pandemic, as that will help reduce the backlog of cases awaiting trial due to the suspension of jury trials.  Furthermore, because of your plea, witnesses, family and friends have been spared what would, undoubtedly, have been a very traumatic trial for all concerned. 

1. Remorse is generally a relevant sentencing consideration, which can be taken into account as a matter in mitigation.  It will usually also be relevant in considering prospects of further offending.  In this case, there is little evidence of remorse beyond the plea itself.  However, I agree with the prosecution concession that where 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, a modified approach to the issue of remorse is appropriate.

1. Specific deterrence, punishment and protection of the community have a much less significant role to play in this case than in many other cases of attempted murder.  However, there is still a need to record a conviction in this case, as a form of general deterrence, and to acknowledge the seriousness with which society regards conduct which endangers human life.

1. In the exceptional circumstances of this case, the prosecution does not suggest that the court should impose a term of imprisonment.  The prosecutor referred the court to three cases in which the circumstances were tragically similar.[1]  In each of those three cases, husbands had attempted, unsuccessfully, to end the lives of their seriously ill wives, and to take their own lives as well.  In each of those cases, the court imposed a non-custodial sentence.

   [1]R v Thomas Hollingrake (unreported, Supreme Court of Victoria, 29 June 1992); DPP v Riordan (unreported, Supreme Court of Victoria, 20 November 1998); and R v Klinkerman [2013] VSC 65.

1. An element of mercy has always been properly regarded as running hand in hand with the sentencing discretion.  A sentence may be both just and merciful.  In this context, mercy must be moved not merely by sympathy, but by considerations supported by the evidence.  It would not be sufficient for both counsel to urge the exercise of mercy; rather, a sentencing judge must be reasonably moved to do so only after careful consideration of the circumstances of the case.  In the circumstances of this case, I am moved to exercise mercy and to impose a non-custodial sentence. 

1. Having regard to all of 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 14 June 2022.  During that period, you must not commit any offences and must otherwise be of good behaviour.  If you breach any of the conditions of the undertaking, you may be punished for the breach as well as the original offending.

1. Had you not pleaded guilty, I would have sentenced you to a period of imprisonment of 3 years, with a non-parole period of 2 years.

1. Further, I declare that the period to be reckoned as already served under this sentence is 3 days, not including today's date.  I direct that there be noted in the records of the court the fact that such declaration was made and its details.

1. I have also made the disposal order sought by the prosecution.