R v Blaauw
[2008] VSC 129
•24 April 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1469 of 2007
| THE QUEEN |
| V |
| DONOVAN ALEXANDER BLAAUW |
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JUDGE: | FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 March 2008 (Plea) | |
DATE OF SENTENCE: | 24 April 2008 | |
CASE MAY BE CITED AS: | R v Blaauw | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 129 | |
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Criminal Law – Murder – Sentence – Plea of guilty – High degree of mercy appropriate – Circumstances not amounting to mercy killing – Victim mentally ill
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr GJC Silbert SC | Office of Public Prosecutions |
| For the Defendant | Mr A Shwartz | Lewenberg & Lewenberg |
HIS HONOUR:
Introduction
You have pleaded guilty to the murder of your wife, Linda, who was killed by you at your family home at Bayswater on 23 May 2006.
The maximum penalty for murder is life imprisonment.
Background
You were born in Cape Town, South Africa in 1949 and were aged 56 years at the time of the murder of the deceased. You are a carpenter by trade. You met the deceased, who was 54 years of age at the time of her death, while both of you were still living in South Africa. In 1975 you and the deceased married and you now have two children. In 1986 you and your family immigrated to Australia to escape the oppressive apartheid regime. In 1987 you and the deceased purchased your home in Bayswater.
Since coming to Australia you have been continuously employed in the building industry and successfully operated your own building maintenance business since the early 1990s.
All the evidence points to you and the deceased enjoying a happy and loving marriage. Your family was close-knit, with your daughter still residing at home and your son living together with his wife and young child in a separate dwelling on your property.
You have no prior convictions. You have never been in trouble with the law. You and the deceased raised your two children in an exemplary fashion.
In 1998 the deceased was diagnosed with bowel cancer which was successfully treated.
The deceased had manifested clear signs of paranoia prior to a formal diagnosis of paranoid schizophrenia being made in September 2004.
This condition and its effects, as will be seen, appear to be the underlying cause for this totally out of character, appalling crime. The deceased suffered from psychotic symptoms including auditory hallucinations, believing she was being followed, that covert surveillance devices had been placed in her computer, that people were “out to get” her and her family and that you had been unfaithful to her.[1]
[1]Statement of Dr Shafiq Yasin, psychiatrist dated 9 August 2006 and statement of Dr Oleh Koniusko general practitioner dated 8 August 2006.
The deceased was treated with anti-depressant and antipsychotic medications which appeared to provide short term improvement. In April of 2006, the deceased suffered a recurrence of her psychosis and sought medical assistance from Dr Yasin, her psychiatrist. I accept your son Michael’s evidence that after your 30th wedding anniversary on 5 April 2006 the deceased’s condition worsened.
Your son, Michael, also gave compelling evidence as to the deterioration in your own health during 2006 caused by worry about the deceased’s psychological condition.[2] A clear picture was painted by him of ongoing dysfunction in the family directly attributable to the deceased’s psychosis.
[2]T82.
Facts
On Monday 22 May 2006, you and the deceased attended an appointment with Dr Yasin. He did not discern any psychotic features or psychopathology at that stage. However, I accept that the deceased was reluctant to confide in the doctor and that he did not get a full picture as to the deceased’s true mental state at that time.
It was your belief, as expressed to your son and in your record of interview, that Dr Yasin advised you and the deceased that there was no guarantee that the deceased would get better and that the type of psychosis she was suffering from may well be repeated in the future.
On the evening of 22 May, the evidence discloses that that deceased’s mental state again deteriorated and she experienced a further relapse. She asked you to lock all the doors and windows, close the blinds and requested that you stay at home with her the next day. You both went to bed. The deceased took sleeping and anti-depressant tablets.
You had been suffering from insomnia for some time. In December 2005 the family doctor, Dr Koniusko, prescribed Stilnox. Dr Koniusko renewed your prescription for Stilnox on 9 May 2006.[3] You were taking 1½ tablets or 15 mg per night and probably took this dose on the night prior to the death of the deceased.
[3]Statement of Dr Koniusko dated 8 August 2006.
The following morning, Tuesday 23 May 2006, you telephoned your workplace to advise that you would be absent that day.
The deceased remained in bed and you brought her a bowl of cereal from the kitchen. Your children had departed for work by 9.30am. You returned the deceased’s cereal bowl to the kitchen and took a knife from the cutlery drawer. You returned to the bedroom where the deceased was sleeping. You lay on the bed next to her and slid your arm under her neck, then you placed the knife to her throat and pushed it in. You held it there until the deceased died.
You then considered what steps you should take. In your record of interview, you said that you realised that you had taken the deceased’s life and that you felt bad as a result of that. You went on to say that you had no reason to live anymore. You then attempted to take your own life. Initially you used the same knife to inflict a wound on yourself on the right side of your abdomen. You then obtained a bottle of “White King” bleach and proceeded to drink a quantity of it.
Records show that at 1.08pm a telephone call was made from the home phone to “000”. This call was not connected and lasted only one second.
At 3.02pm you phoned the State Emergency Communications Centre on “000” and stated “I killed my wife” and “I killed her with a knife”. You requested police attendance. You said that you had injured yourself with a knife. The operator had difficulty understanding your speech due to the effects of the bleach on your throat. You also stated that you did not need help, as “I don’t care if I die or not”.[4]
[4]Transcription of 000 call at 1503 hrs on 23 May 2006.
Police and ambulance officers attended at your home. You said to the emergency workers that you had killed your wife and expressed a wish to die. A note was found in the house which read:
IM SORRY CANDY MIKE & IHARA DAD COULD NOT ANYMORE[5]
[5]Exhibit P2 photo 87.
Whilst an inpatient at the Maroondah Hospital, you were assessed as being suicidal and resistive to treatment. For many months after the deceased’s death you remained actively suicidal.
Medical opinions
In the course of the plea, Dr Lester Walton, consultant psychiatrist, gave evidence and a medico-legal report prepared by him was tendered.[6] His evidence was relevant to several matters concerning the events of that day. First, he was of the opinion that you were “diagnosably depressed”[7] prior to the incident. Indeed in his report he described the condition as “a chronic major depressive disorder”. Secondly, he expressed the view that, given the events of that day and your subsequent depressive state, which he diagnosed as still being present and likely to be ongoing, your time in prison would be more onerous for you than others.[8] Thirdly, he said that “this man has no history of violence and in many respects the illness has contributed to what is quite out of character behaviour …” Finally he considered that you were still suffering presently from a considerable degree of depression.
[6]Exhibit P1.
[7]T15.
[8]T18.
Dr O’Callaghan, a physician with a speciality in clinical pharmacology, gave evidence on one specific issue, namely that of your use of Stilnox and its relationship to your actions. Whilst his evidence was of some assistance, given the likelihood that you consumed a relatively small dose of Stilnox[9] on the evening prior to the death of your wife, I am not persuaded that it had any material affect on your actions in murdering the deceased.
[9]1½ tablets being 15 milligrams.
The approach of the Crown
The Crown accepted that, in the circumstances of this offence, a merciful sentence may be imposed.
Mitigatory considerations
I take into account the following matters in determining the appropriate sentence for your crime.
First, that you are a person of extremely good character who has contributed much to your family and your immediate friends. I accept the evidence given by the deceased’s and your friend, Mr Peters, as to your good character and your love and devotion to the deceased and your family. As I have said you have no prior convictions.
Second, although you did not plead guilty until shortly prior to the trial of this proceeding, your plea needs to be taken into account. It is also understandable in the circumstances of this case that such a plea required a significant amount of consideration prior to being entered.
Third, I accept the opinion of Dr Walton, substantiated by the evidence of your son, Michael, that at the time of the commission of the offence you were significantly depressed. This, I think, played a part in your decision to end the deceased’s life. I am satisfied that, to some extent, it impaired your ability to exercise appropriate judgment.
Fourth, and relevant to the previous point, considerations of individual deterrence, general deterrence and moral culpability are, in my view, not as significant as they might be given the circumstances of this offence.[10]
[10]See R v Verdins (2007) 16 VR 269 [32]
Fifth, I accept that an act of violence by you is totally out of character and that there is no prospect of you re-offending in the future; no question of rehabilitation arises as there is no need for it.
Sixth, you have freely admitted your actions and the consequences of them. In particular, I note your remarks in your record of interview:
“she was just going through so much on that day. In the morning she asked me not to go to work, to stay with her. I don’t know why I did it. Don’t know. Don’t know what – what got me to – to do it. I have no real int -, I had no intentions of killing my wife then, I just wanted to take her pain away”.
Seventh, I accept Dr Walton’s evidence that a prison sentence will be more onerous for you than others.
Other relevant sentencing considerations
The mitigatory factors which count in favour of a lenient sentence need, however, to be balanced against other countervailing considerations.
Human life is sacred. Whatever the perception of the perpetrator, a civilised society will not, and must not, accept that there is justification for the deliberate taking of the life of another without lawful excuse.
Whilst I accept that the primary motivation for you to kill your wife was your belief that you would relieve her of her pain, this needs to be placed in context. The deceased had not expressed any intention that she wished to die or to have her psychological suffering ended. She, sadly, like many others in the community, experienced significant psychological symptoms. However, such symptoms would come and go, and whilst the existence and perpetuation of such symptoms was no doubt a cause of significant distress to you and your family, it could never be said that such a condition justified the actions you undertook.
Whilst you are remorseful for the effects that your actions have had on your family there is no true remorse in respect of the death of the deceased – this is consistent with your belief that you wished to end her suffering.
At times during the plea on your behalf there was reference by your counsel to the appropriate judicial approach to sentencing in “mercy killings”. Whilst your actions were affected by your depression due to the deceased’s condition and your belief that you were assisting her, she was not in such a state that one could characterise your actions as a mercy killing.[11] Further, it is clear from your record of interview that there was no discussion between you and the deceased as to her death.
[11]See Orlowski “Mercy Killing Cases in the Australian Criminal Justice System” (1993) 17 Crim LJ 10.
In any event, I doubt very much whether categorising this homicide as a mercy killing or otherwise assists in determining the sentence. In arriving at an appropriate sentence the real point is how to synthesise the various matters surrounding the death of the deceased and your actions in causing her death.
The deceased was 54 years of age at the time of her death. Your children have remained loyal (still visiting you and maintaining close contact with you whilst you are in prison). However, your actions have clearly caused them significant emotional upset and, at the least, to use your son’s expression left him and his sister “very confused as well, as we are all by the situation”.[12]
[12]T86
Whilst it is clear that your depression played a part in your decision to kill the deceased, I cannot lose sight of the fact that this was not a heat of the moment action, but rather part of a plan that you devised that morning motivated by your belief that your wife’s life should be ended so that her suffering could be alleviated.
Sentence
The Crown has, in my view, properly conceded that a merciful sentence may be imposed. The circumstances surrounding the murder of the deceased are out of the ordinary. I am satisfied that, given your psychological state at the time of this offence, there must be some moderation of the sentence in respect of the requirements of general deterrence, individual deterrence and moral responsibility. Of course, as I have said, these need to be balanced against the fact that you have wilfully and deliberately taken the life of another.
For the murder of Linda Blaauw, I sentence you to a term of imprisonment of 11 years and I set a non-parole period of 7 years.
I declare, pursuant to the provisions of Part 2 of the Sentencing Act, that the period to be reckoned as already served under the sentence is 694 days.