R v Bailey
[2001] VSC 461
•22 November 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 01491 of 2001
| THE QUEEN |
| v. |
| ROSALIE VICKI BAILEY |
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JUDGE: | COLDREY, J. | |
WHERE HELD: | SHEPPARTON | |
DATE OF SENTENCE: | 22 NOVEMBER 2001 | |
CASE MAY BE CITED AS: | R. v. BAILEY | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 461 | |
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CATCHWORDS: Sentence – Plea of guilty to reckless conduct placing person in danger of death – Offender attempted to kill herself and young son by carbon monoxide poisoning – At time of incident offender under great psychological stress although not psychotic – Offence discontinued after realisation of its enormity – Remorse – Ongoing relationship of offender and victim vital for child's wellbeing – Support of community and government agencies – Low level of moral culpability – Minimal weight to specific and general deterrence – Proceeding adjourned for three years pursuant to s.75 Sentencing Act 1991, with special condition requiring ongoing contact with Community Mental Health Team.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr. C. Hillman | Office of Public Prosecutions |
| For the Accused | Mr. D. Cosgriff | Nancy Battioto |
HIS HONOUR:
Rosalie Vicki Bailey, you have pleaded guilty to the offence of reckless conduct placing Daniel Pearce in danger of death at Molyullah on 19 March 2001 and I must now sentence you.
As I indicated at the conclusion of the plea hearing I do not intend to imprison you but it is necessary for me to give reasons for the course I propose to adopt. In passing sentence it is necessary to examine the facts and circumstances surrounding the commission of the offence, so as to place your actions in context.
The incident itself may be briefly described: during the months leading up to 19 March 2001 the de facto relationship between you and Trevor Phillips which had commenced at about May 2000, began to deteriorate - at least from his perspective. You wished to go to counselling, he regarded the matter as private.
In the result a few weeks before the date of this offence he requested you and your seven-year-old son, Daniel Pearce, to leave his premises at Kilfera Road, Molyullah. On Sunday 18 March further discussions occurred between you and Trevor Phillips which resulted in you saying you would leave by the end of that week. Trevor Phillips was to be absent during the week working with VicRoads.
On the morning of Monday 19 March both you and Trevor Phillips were distressed when he said goodbye to Daniel, with whom he had formed a strong bond. As a result your de facto indicated he was not sure that he had made the right decision in requiring you and Daniel to leave his house. You told him to think about it and he was to ring you at eight o'clock that night to give you his final determination. You waited for that phone call with a mixture of hope and trepidation because you did not wish the relationship to end.
You had experienced several traumatic events in the months prior to this date and you felt that you needed Trevor Phillips' ongoing support. I shall refer to those matters shortly. Further, if you left the property you believed you had nowhere to go.
According to Trevor Phillips' statement he told you that he could not really decide the matter, but that his earlier feelings had not really altered much. Whatever the precise words he used in the telephone call on that Monday evening, you certainly interpreted his response as confirming his decision that you should leave. You hung up on him and you told the investigating police you were upset, angry and hurt. He did not attempt to ring you back.
It appears that having nowhere to go you thought it better to end your own existence and you did not want to be separated from your child Daniel. In this state of mind you wrote a suicide note bearing the time, "Monday, 8.59 p.m." Among other things it said, "Trevor, please make sure that Daniel and I remain together. All my belongings now belong to you. Loving you wasn't enough, was it - you just had to push us away. Much easier than making a commitment. Well, you certainly couldn't hurt any one any more than you've hurt us so now you'll have to live with this too. I didn't want to leave Daniel behind but why leave him behind he'd be sad without me. Bad enough that he missed you as much as he did. My diamonds I want you to keep, those and you are the most precious things to me and Daniel. Well, he was just so much more and I will keep him with me always. You will remember me always, love Rose and Daniel." The jewellery was left behind with the note.
You obtained a vacuum cleaner hose and you affixed one end to the exhaust of your Nissan Pulsar Hatch. The other end was fed into the rear luggage area of the vehicle through a drainage seal. You woke your son who was already in bed and it seems you told him that you and he were going to sleep in the car. You went to the car together, equipped with pillows and a doona. You activated the engine and you told the police that after about ten minutes Daniel started playing one of his nursery rhyme tapes. Some time after this Daniel started complaining that his ears were hurting and started screaming. You were sufficiently aroused to open the car door and pull him into the fresh air. Your recollection is of falling over in the driveway and of Daniel sitting on top of you yelling out, "Mum."
Daniel's recollection is of walking with you to the car. You getting in it together and you not permitting any windows to be open. At some stage he told you that he felt sick in the stomach, this state existed for a period of ten minutes after which he went to sleep. His next memory is of being in the driveway lying down on top of you and of you yelling out the name, "Beau" being a reference to your nearby friend and neighbour, Robert Collins.
Mr Collins reported hearing three loud screams which he attributed to you; fearing for your safety he drove to the property. He found you lying comatose on your back with your son, who was crying, on top of you. Mr Collins placed Daniel in his vehicle and rang for an ambulance which attended and treatment was administered at the scene before you and Daniel were taken to the Wangaratta Base Hospital.
Fortunately, both you and Daniel have fully recovered from the physical effects of carbon monoxide poisoning. Also, mercifully, Daniel's memory of what occurred appears to be extremely limited - at least on the face of it.
Of great significance in this case is your mental state at the time of your actions. An insight into this can be gained by reference to the succeeding events. After treatment for the toxic gas you had inhaled, you spent the following night as a voluntary inpatient at the Kerford Unit which is a psychiatric facility attached to the Wangaratta Base Hospital.
While there you were assessed by a psychiatrist, Dr Peter Clarke who is the Director of Psychiatric Services at the hospital. Apart from his initial examination of you there have been two follow-up consultations. In between those consultations you cooperated with the Community Mental Health Team in a program devised upon your discharge.
Dr Clarke provided a report to this court and also gave evidence. In that report he noted that your actions on this night were impulsive and not pre-planned. The evidence I have canvassed bears that out. He also spoke of your remorse and that you were shocked at what you had done. I accept that unreservedly.
Dr Clarke expressed the view that your actions occurred in the face of what you perceived as overwhelming psychological stressors, which were the precipitating events leading up to the incident.
In my view, one can trace the build-up of these stressors in the period preceding this incident, commencing with Trevor Phillips disinclination to seek counselling. This was particularly stressful given your desire that the relationship continue, not only for your own sake but also for the sake of Daniel who had formed a close bond with Trevor Phillips. Added psychological stress was occasioned by a miscarriage, which occurred on 13 February. Then about two weeks before this incident a close and long-standing family friend, Keith Ironshore, died. Finally, there was the apparent destruction of a relationship that was extremely important to you and your son.
Dr Clarke labelled the events I have described as: "Major psycho-social stressors impacting upon your personal vulnerabilities and limited coping strategies." In Dr Clarke's opinion you did not, and do not, suffer from any psychiatric illness. However, at the time of these events you were, to use his words, "not a well rational person."
I have mentioned your subsequent cooperation with the Community Mental Health Team and this was confirmed by Ms Jennifer Aarons, a psychiatric nurse who gave evidence on your behalf. She told the court of how you had now developed a support network of friends and how you had handled subsequent stressful situations, not least the various court proceedings arising from this event. Additionally, you have continued to have weekly contact with the service.
Ms Aarons also spoke of the close relationship you currently have with your landlady, your sister, Margaret Buchan and the school principal of Daniel's school. That principal, Christine Porker from Greta Valley Primary School, gave evidence before this court of the support you had received from other parents and of the contact you had with her when you felt under any sort of pressure. She said you were an excellent mum and your relationship with your son, Daniel was a strong one.
This brings me to the subsequent history of Daniel. There is no doubt you have been a loving and caring mother for Daniel and that your love is reciprocated by him. This was attested to by your neighbour Mr Collins among others.
Following this incident Daniel was taken by the Department of Human Services and placed in the care of your sister, Margaret. Over the next two months you were re-introduced to your son by escalating periods of access until ultimately, in May of this year, you resumed full-time care of him.
The court was provided with a report by Mr Peter Toohey, the Supervisor of the Long-term Team of Wangaratta Child Protection. Mr Toohey also gave evidence tracing the history of this matter, including the obtaining from the Children's Court of a 12-months supervision order for Daniel on 14 May 2001 and the re-uniting of you and Daniel following recommendations made by the Children's Court Clinic on 20 May 2001. Daniel's situation is monitored from time to time and Mr Toohey indicated that there have been no significance concerns since you and Daniel have been re-united.
Daniel has also been seen by Mr Neville Webster, a psychologist, between April and September 2001, following a referral from the Department of Human Services. Mr Webster's report was tendered to the court. He indicated that a reluctance by Daniel to discuss this incident made it difficult to determine what he remembered about it and its impact. The reading of Daniel's interview with police, however, suggested a somewhat limited understanding of these events.
In his report Mr Webster records that initially Daniel's main concern was to return to his mother. This having occurred Mr Webster reported that: "he settled back into his family with very few problems. He appeared to be an active, relatively well-adjusted young boy interested in age-appropriate activities."
I should add for completeness that whilst your relationship with Mr Phillips subsequently ended, a strong association remains between him and Daniel. They see each other at weekends and also have some telephone contact. Indeed, your own relationship with Mr Trevor Phillips is apparently an amicable one.
Mr Webster ends his report in these terms: "It is absolutely essential that Daniel experience a period of stability in his life. In particular any further period of separation from his mother or any other threat to their relationship would present an unacceptable risk to Daniel's personal development. The mother/son relationship is now the only ongoing significant relationship in Daniel's life. While that relationship continues without incident there is hope that Daniel's well-being can be sustained."
Mr Webster continues: "My direct involvement has been reduced at this stage on the understanding that Daniel's circumstances remain relatively stable. However, the situation should continue to be monitored carefully and I would expect to be involved again if the circumstances change."
This theme was taken up by Dr Clarke who expressed the view that any further separation would be very unhelpful to Daniel and his relationship with you and also unhelpful to your own rehabilitation.
I now turn to matters personal to you which were outlined by Mr Cosgriff in the course of his comprehensive and helpful plea and which are also relevant to the sentence to be imposed. You are 37 years old. You were born at Lurg a small town near Benalla. Your mother remarried when you were about six and you have four step-siblings.
Your secondary education was at Benalla High School where you reached Form 4 level. You left school at the age of 15 to pursue your obsession with horses. You worked at the El Grando Quarter Horse Stud for a number of years without wages simply because of your love of horses. You rode in competitions with your employers paying entry fees and you keeping any winnings. Throughout this time you were supported by your parents.
When you were 19 you realised that you needed to earn money. A series of part-time jobs followed, including work as a rouseabout, relief milking, seasonal fruit picking and pub work. At about the age of 26 you obtained full-time work at the Terminus Hotel, Yarrawonga. It was here you met Barry Pearce, who is Daniel's father. A de facto relationship of about five years duration followed. Unfortunately, Mr Pearce had an alcohol problem, which deteriorated into violence and you left him in November 1996 returning to live with your mother. Mr Pearce apparently now resides in Perth.
After Daniel was one year old you obtained a job with the Australian Defence Industry making ammunition and propellers and you worked there for three years. After returning to your parents' home, you worked at a mushroom farm and at Coles deli. You are presently undertaking a General Education Certificate course at Wangaratta TAFE with the long term ambition of becoming a nursing aide.
That history indicates that you are prepared to work hard and you have the desire to improve your qualifications and make something of your life. You effectively have no prior convictions. You have expressed extreme remorse for what occurred and it is quite clear that when the screams of Daniel made you realise the enormity of what you were doing, you immediately desisted from it, and rescued him.
You pleaded guilty at the earliest opportunity and you must be given credit for that course, which is of course consistent with your remorse. Your background indicates that you have excellent prospects of rehabilitation and I do not think specific deterrence need be given any weight.
Further, whilst you were not suffering from any specific psychiatric illness at the time of this incident, you were clearly in a state of emotional turmoil and not thinking in a rational manner. This factor reduces your moral culpability and lessens the weight to be accorded to any general deterrence.
There is yet a further consideration in this case and that is the well-being of your son Daniel. The view of the experts is unanimous that this will be best served by ensuring that your current relationship with him is not disrupted. Clearly, he wants to be with you. This is one of those occasions when the views and future well-being of the victim should be taken into account.
Mr Hillman who appeared for the Crown very fairly did not press for a custodial sentence. He did, however, submit that there was a measure of planning albeit within a short timeframe, that the offence was potentially serious and it was, in one sense, a breach of parental trust. Accordingly, he submitted there should be a measure of general deterrence in the sentence imposed be it a bond or otherwise, reflected in the recording of a conviction.
In response Mr Cosgriff pointed to Dr Clarke's view of your behaviour as impulsive. He argued that the recording of a conviction would not only make it generally more difficulty for you to obtain future employment, given your current level of skills, but in particular it would preclude you from being able to pursue a career as a nursing aide.
In my view, taking a pragmatic perspective, the interests of your son are best served if you are placed in the optimum situation to obtain gainful employment.
There is also another dimension to this sad case: to record a conviction which will stigmatise you as having placed your son in danger of death may, in all these circumstances, be regarded as unnecessarily heavy-handed. Courts may and do temper justice with mercy when the occasion warrants it; I regard this as such an occasion.
Accordingly, although recognising that Mr Hillman's submission is not without force, I do not propose to record a conviction. However, any sentence imposed must be designed to ensure not only your own continued rehabilitation but the future well-being of your son Daniel.
I propose to release you under s.75 of the Sentencing Act 1991 to be of good behaviour for a period of three years and to appear before the court if called upon to do so during that period.
Dr Clarke suggested that you maintain contact with the Community Mental Health Team for a minimum of three months after the court proceedings. However, I do not think the timeframe should be limited in this manner. I propose to fix the further special condition that during the period of three years, you continue to maintain contact with the Community Mental Health Team as required and obey all its lawful instructions and directions.
Are you prepared to enter into a bond on those conditions?
PRISONER: Yes.
HIS HONOUR: The bond will have to be made out and you will have to sign in. I think in the circumstances of this case the various reports from the psychologist, the psychiatrist and the Department of Human Services should remain on the file. I propose to take that course.
(Bond signed and acknowledged.)
In terms of the bond, Ms Bailey, your solicitor will explain to you anything about it, any queries you may have about it. All right. I am sure you now know that however grim things may seem there are always people, friends you can turn to for help and I am sure you will do that in the future. So good luck for your future.
(Prisoner released.)
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