R v Bourke
[2002] VSC 599
•6 December 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1447 of 2002
| THE QUEEN |
| v |
| D'ARNE MARIE BOURKE |
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JUDGE: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 OCTOBER 2002 | |
DATE OF SENTENCE: | 6 DECEMBER 2002 | |
CASE MAY BE CITED AS: | R. v. BOURKE | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 599 | |
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Sentence – Manslaughter by unlawful and dangerous act – Plea of guilty – Offender killed six year old daughter in unexplained circumstances before fleeing to Queensland – History of mental instability, including psychosis, particularly after head injury in 1990 – Likelihood mental fragility contributed to the offence – Lower level of moral culpability – General deterrence sensibly moderated – No prior convictions – Sentenced to 7 years' imprisonment with a minimum of 5 years before eligibility for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Chris Ryan | Office of Public Prosecutions |
| For the Accused | Mr A. Schwarz | Victoria Legal Aid |
HIS HONOUR:
D'Arne Marie Bourke, you have pleaded guilty to the manslaughter of your daughter, Tori Leigh Lamers at Frankston between 17 and 28 August 2001.
In order to sentence you, it is necessary to summarise the facts surrounding the commission of this offence.
In August 2001, you were residing at Unit 1, 23 Corio Avenue, Frankston, with your six year old daughter, Tori. She had been attending Overton Primary School, where she was in grade one. Her absence from classes after Friday 3 August resulted in the school authorities contacting your mother, Mrs Carol Bourke, on the 28th of that month. She, in turn, alerted your brother Paul and sister Leanne, who each attended at the unit but were unable to raise anyone.
Your sister noticed washing on the line which, on examination, appeared to have been there for some time. Mail had also been in the letter box for a lengthy period.
Ultimately the Frankston Police were contacted and on breaking into the unit, shortly after nine p.m. they discovered the body of your daughter lying naked in the shower recess. The lower part of her body was covered with pink bath towels.
Professor David Ranson, who performed the autopsy, estimated that Tori had been dead for many days, possibly in excess of a week. This is consistent with the evidence of neighbours, that they had not seen Tori since 18 August and had not observed you in the area after 23 or 24 August.
There was a container of food in the microwave and food in the refrigerator, suggestive of your rapid departure from the premises.
Almost six weeks later, on 1 October, you presented yourself to the police at the Mount Ommaney police station, a suburban police station in Brisbane, stating that you wanted to hand yourself in. In response to police questioning you said "I've murdered my daughter," and you told them that you had been going from place to place ever since. The police officer described you as dishevelled and bare footed, with a blank expression on your face. You were carrying a plastic shopping bag containing items of clothing. You spoke of walking and hitching rides from Melbourne and sleeping on the streets.
In relation to the death of your daughter, when asked for details of what had occurred, you replied "I can't remember."
Subsequently you obtained legal advice and when interviewed by members of the Victorian Homicide Squad and asked how Tori died, you responded "No comment." This was apparently in accordance with that advice. You also professed your love for your daughter.
There is no definitive evidence as to the cause of her death. Whilst the probability is that Tori died from asphyxiation, the effect of the passage of time on her body precluded the pathologist, Professor David Ranson, from arriving at any unequivocal finding as to the mechanism of her demise.
Similarly, there are no substantial clues as to your motivation to be found in the surrounding events.
There are various versions of your capacity as a mother. Your own mother, Mrs Carol Bourke, and your father, Mr Ian Bourke, described you, in effect, as a loving and caring mother devoted to Tori. This view was supported by your sister Leanne, whilst your brother described the mother/daughter relationship as a normal one. Your former partner and the father of Tori, Edward Lamers, was less flattering in his description of your mothering skills. No doubt his perceptions are affected, to some extent, by a custody dispute between you both which ultimately resulted in a consent order in the Family Court granting you custody of Tori in July 2000 and giving Mr Lamers access rights.
In the event, there is no evidence from which I could conclude that you had ever previously physically abused your daughter. There were, however, occasions when you found it difficult to come to terms with your parenting role. At one stage, the date is unclear, you requested your sister Leanne to look after Tori because you could not cope with her. You told your mother that you needed a break to get your thoughts back together. Leanne agreed to take Tori and suggested that you see a counsellor. Tori remained with Leanne for about one to two weeks.
On another occasion, in about early June 2000, Mr Lamers had custody of Tori from four to six weeks.
According to Mrs Gerarda Lamers, the mother of Edward Lamers, you telephoned her at this time telling her that you never wanted to be a mother, could not stand the sight of Tori and needed a break from her. Mrs Lamers believed you were trying to be a good mother, but that you had a problem and she indicated that you should see a doctor. You asserted that there was nothing wrong with you.
However, in an affidavit you swore on 5 July 2000, for the purpose of the Family Court proceedings, you stated that you were feeling isolated and depressed at this time and lacking any support network in Frankston. You also said that when depressed you had been abrupt with Tori telling her to stay in her room. You mentioned on-going counselling you were receiving from the Frankston Community Health Centre which you believed was assisting you.
Records produced by the Centre indicates your attendance between 20 June and 19 July 2000. You were seen by your local GP, Dr Hedley Sutcliffe on 23 June 2000 and he records you as saying you had lost custody of your daughter, "due to neglect and mistreatment." This is not explained further, but I take it to refer to the matters to which I have just adverted.
You were advised by Dr Sutcliffe to resume taking anti-depressant medication which you had apparently ceased. On 17 July when Dr Sutcliffe again saw you, custody of Tori had been regained and he reported that you were much calmer.
Since that date, which preceded Tori's death by over 12 months, there are no other medical or welfare agency reports.
Mrs Lamers also looked after Tori for some time during the Christmas period 2000. Again in early July 2001 you left Tori with Mrs Lamers for one week of the school holidays. She dropped Tori back to you on 7 July 2001.
The material indicates that during the year 2000 and the first half of 2001, members of the Bourke family would babysit for you on Monday nights, so you could go to Netball and about every third Friday night so that you could socialise. Further, your mother would visit you once every fortnight or month and take Tori out to give you some time to yourself. It is clear, however, that during 2001 your contacts with the family became less frequent.
At a time variously given as November or December 2000, or January 2001, you announced your intention to go backpacking and fruit picking. Your mother described you as obsessed with this idea. Despite opposition from your family, who were concerned about Tori's education, you expressed your determination to go. There was material before the court of your purchase of camping gear, a backpack and sleeping bags for Tori and yourself. There is also the suggestion that you began to sell your furniture, although it is unclear what was actually sold. The police photos of your property reveal a well kept house and, as regards furniture, only the bed frames appear to be missing.
A major impediment to this enterprise was the opposition of Mr Lamers, both to any proposal that Tori be cared for by your sister Leanne until you established yourself in your new environment, and to any proposal that his daughter should be relocated in Queensland. His attitude was communicated to your solicitor by letter dated 15 December 2000. Nonetheless, on about 7 July 2001, you told Mrs Lamers that you had sold a number of your possessions and that you and Tori were going to Queensland backpacking and fruit picking. You showed Mrs Lamers a hostel club card and said you were saving for cooking utensils and a two-man tent. In fact, 7 July was the final contact you had with anyone connected with Tori Lamers.
There had been constant tension between yourself and your mother, who described you as having a short temper. At this time it was manifested by you snapping at her, and she ultimately felt that you did not wish her to be at your home and that if you wanted her you would telephone. You last spoke to her by phone on the June Queen's Birthday weekend.
Leanne, because of the demands of her own activities, last saw you towards the end of June. She described you at that time as withdrawn and mumbling and asserting, despite the assistance you had been given, that you had no family. Similarly, your brother Paul who worked night-shift, had not had any contact with you since June. Accordingly, there is no specific evidence of your mental state in the weeks leading up to Tori's death.
It is in those circumstances that the Crown, faced with no compelling motive or actual explanation for Tori's death, and without any definite pathological evidence as to its cause, accepted your plea to unlawful and dangerous act manslaughter. So much for the actual events surrounding this killing.
It may be that any insight into what occurred or explanation for it may be gleaned from your personal history. However, before turning to consider it, I wish to say something about the deceased. Tori Lamers was just under six-and-a-half years of age when she died. In eloquent and moving victim impact statements, her father Eddie, grandmother, Mrs Gerarda Lamers, and her cousin Natalie Lamers speak of the love and joy Tori brought into their lives. Her father writes of the special moments he and Tori shared. The anger, pain and grief occasioned by her death persists and he has required counselling. Understandably Mrs Lamers has similar feelings. To some extent they are increased by the loss of her own daughter Christine from leukemia some 13-and-a-half years ago.
As a medical certificate indicates, Mrs Lamers' own health has suffered as a result of this tragedy.
Included in her victim impact statement are not only photographs of happy family occasions with Tori, but also letters prepared by Tori's school friends. It is clear that she was popular at school and Mrs Lamers records the teachers of Overton Primary School and the students have planted a wattle tree in her honour. The untimely death of Tori Lamers is something which will affect the Lamers and the Bourke families, as well as her friends, forever.
D'Arne Bourke, you are presently aged 30, having been born in Moreland on 13 March 1972. You have an older sister and younger brother to whom I have already referred. It was put by your counsel that you grew up in the shadow of a sister whose ability and capacity to achieve were far greater than your own. You lived with your family in the Thomastown, Mill Park and Yarrambat areas. Your early life involved swimming, athletics and netball, as well as horse riding at Yarrambat.
Your parents separated when you were about 14 years old. At this stage you apparently clashed frequently with your mother, both of you being strong willed and independent. When your mother sent you to live with your father at Bundoora, you regarded this as an act of abandonment and your resentment of her increased. According to your instructions to your counsel, Mr Shwartz, even at this point of your life you would become annoyed for reasons that you could not understand. And further, that you were always in trouble and taking the blame for others. It seems that this latter perception was the forerunner of a level of paranoia.
Despite your avowed resentment of your mother, it seems to me that she has always been willing to assist and support you, as she has done in this courtroom. Your history also indicates that your father, Ian Bourke, has been prepared to have you reside with him on a number of occasions during your adult life.
You were educated initially at St Francis Primary School at Mill Park and then at Loyola College, Watsonia, and Whittlesea Technical School. After repeating year 10 at Whittlesea, you commenced but did not complete year eleven. Around this time you lived for approximately two years with a boyfriend in Preston. At about the age of 18 that relationship ended and you eventually returned to live with your mother.
You obtained employment at a Bundoora mushroom farm. This appears to have been your only significant occupation. It was interrupted on 28 October 1990 when you were involved in a serious motor accident. Your injuries were extensive and included a frontal intracerebral haematoma, a fracture of the mid shaft of your left femur, requiring the insertion of an AO rod, a full thickness corneal laceration and the prolapse of your iris, resulting in a sensitivity to bright light, a La Fort fracture of the jaw and a head laceration which required a split skin graft. You experienced five days of post-traumatic amnesia.
You were discharged from the Royal Melbourne Hospital to Bethesda Rehabilitation Centre on 22 November. There you underwent four weeks of in-patient rehabilitation. Further surgery was required and performed at the Royal Melbourne Hospital on 17 January 1991 and 27 April 1992.
The neuro-psychological assessment conducted at Bethesda, indicated some subtle cognitive defects, but at a review in 1992, you reported on-going problems with irritability, lower frustration tolerance and depression.
These changes in your personality were essentially confirmed by members of your family, who described sudden mood changes involving irritation and verbal abuse. Or put another way, temper tantrums.
There were also periods when you were withdrawn. It appears, however, that you resumed your work as a mushroom picker.
In the ensuing two years, you took pain-killing prescription drugs. Amongst other problems you suffered from migraine headaches and you commenced heavy cannabis use as a form of self-medication.
On 8 April 1993, when you were aged 21, you were admitted to the neuro-psychiatry unit of the Royal Melbourne Hospital. You gave a three week history of hearing voices and feeling that people knew what you were thinking. Some months earlier, at Christmas 1992, you had ended a relationship with a boyfriend, principally because you felt he had begun to plot against you and you felt increasingly persecuted by him.
You were diagnosed with a psychiatric illness and treated in the neuro-psychiatry unit over a three week period. The exact nature of that illness is unclear. According to the hospital records, the possibilities included schizophrenia or organic psychosis, secondary to the combined effects of head injury and marijuana.
Upon discharge, you did not return to work, but moved onto a 21 acre property owned by your mother at Kinglake West.
In about June 1994, you met Edward Lamers and a relationship commenced which may generally be described as an emotionally turbulent one.
As a result of this association, Tori was born on 21 March 1995. Your relationship with Mr Lamers was not assisted by your relative isolation and the relatively rudimentary accommodation you experienced at Kinglake over the next two and a half years.
After your mother sold this property in about 1997, you and Mr Lamers separated. You went to reside in Melton with Tori. You were in receipt of a disability pension. You desired to live an independent life with Tori. Although your mother and Mrs Lamers were supportive, you experienced a degree of isolation and loneliness during the time you spent at Melton, variously estimated at 12 to 18 months.
For completeness I should add that Dr J.P. Nettledon of the Bundoora Medical Centre, noted a number of consultations with you for various items, up until September 1997 and his prescription of Temazepam on a number of occasions.
In a report dated 2 September 2002, he remarked:
"In retrospect, I am aware that Ms Bourke often demonstrated an unusual affect and attitude in my office, but at no stage was I concerned about her behaviour in general or her mothering and care of her daughter Tori."
Eventually your sister persuaded you to move to Frankston to be nearer the family. I have already referred to the salient events of your sojourn in Frankston.
Your counsel put to me that the nine month period preceding Tori's death was marked by confusion and perplexity. There was a desire to re-establish yourself interstate, conflicting with your inability to leave your child with your sister and your perception that Tori had settled down at school and was coping well.
According to the report of Dr Lester Walton, an experienced consultant psychiatrist, you told him that you could not recall precisely what had occurred in relation to your daughter's death. Whilst you could remember being angry with Tori and telling her off, you could not recall the source of your anger. You recall being in a panic-stricken state, packing up and taking off. As Dr Walton notes, your comments to the Queensland Police indicated some awareness of your responsibility for your daughter's death.
As to your lack of memory, Dr Walton stated: "In my opinion, the amnesia surrounding the death of this woman's daughter is most likely psychogenic in nature, an unconscious psychological reaction where she has simply been unable to retain awareness surrounding the abhorrent notion that she may have been responsible for the death of her daughter."
There is nothing substantial to contradict that expert evidence.
Dr Walton also expressed a view that you are of low intelligence but not intellectually disabled. This accords with the findings of Mr Bernard Healey, a clinical psychologist, who described you as being of below average intellectual capacity. Tests he conducted also indicated elevated scales for schizophrenia and paranoia.
As Dr Walton points out, it is impossible to determine your state of mind and in particular, whether you had again become psychotic, at the time of Tori's death, although your past history establishes that risk. Dr Walton also comments: "This woman's brain injury, in my opinion, has relevance more generally in terms of compromising Ms Bourke's parenting skills and may well be centrally relevant in terms of her failing to exercise proper judgment, both in terms of her failing to seek out assistance for herself and ultimately towards any ill-considered decision that killing her child represented a rational solution to her problems."
The personal matters I have set out indicate a history of mental fragility which seems highly likely to have contributed to the commission of this offence. In those circumstances Mr Ryan, on behalf of the Crown, conceded that the principle of general deterrence should be sensibly moderated in your case. I am also prepared to attribute a somewhat lesser degree of moral culpability to your actions.
Further, it may be said that your knowledge that you have killed your child that you undoubtedly loved, is something that you will have to live with all your life. It is a punishment that will be a greater burden to you than any prison sentence this court may impose.
Despite any lack of conscious awareness of the killing, Dr Walton speaks of your manifest distress when speaking about the events. Given your mental state, this may be regarded as a form of remorse. Indeed, you are already indicating or exhibiting some evidence of depression which is likely to increase if your awareness of your role in your daughter's death becomes clearer to you.
These factors reduce the weight to be accorded to specific deterrence.
Further, you have pleaded guilty to this offence for which you are entitled to credit and you come before this court without any prior convictions.
Hopefully, you will eventually be able to rehabilitate yourself, but that may require you to agree to undergo some psychotherapy.
With all that having been said, I am faced with the serious offence of the killing by you of a young child who loved and trusted you and who was entitled to your care and protection. It is a crime which, apart from the factors that I have set out, would attract a very severe penalty indeed.
In the complex circumstances of this tragic case, there is no correct sentence. The balancing of the principles enunciated in the Sentencing Act, including punishment, denunciation, specific and general deterrence and rehabilitation, is an extraordinarily difficult task.
Ultimately, however, I have concluded that you should be sentenced to be imprisoned for a period of seven years and I fix a period of five years before you become eligible for parole.
Further, I declare that the period to be reckoned as already served under the sentence is 432 days, inclusive of today's date. I direct that there be noted in the records of the court, the fact that such declaration is made and its details.
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