R v Clark
[2009] VSC 602
•15 December 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT BALLARAT
CRIMINAL DIVISION
No. 1623 of 2009
| THE QUEEN |
| v |
| MARIA CHRISTINA CLARK |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 December 2009 | |
DATE OF SENTENCE: | 15 December 2009 | |
CASE MAY BE CITED AS: | R v Clark | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 602 | |
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CRIMINAL LAW – Sentence – Attempted murder – Holding windpipe of mother who was in a coma and near death – Plea of guilty – No prior convictions – Sentenced to two years’ imprisonment wholly suspended – Exceptional circumstances – Offender suffering from recurrent major depressive disorder at time of offence – Operation of s.6AAA of Sentencing Act 1991.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D A Brown | Office of Public Prosecutions |
| For the Accused | Mr T R Marsh | Mike Wardell & Associates |
HIS HONOUR:
Maria Christina Clark, today on 15 December 2009 you pleaded guilty before me to one count of attempted murder of your mother Agnes Maria Caris.
Your plea of guilty was entered at the first opportunity on 20 October 2009 at a committal mention of this matter. The offence was committed by you on Sunday 14 December 2008 and it now falls to me to sentence you for that offence. The maximum penalty for attempted murder is 25 years' imprisonment and it is a serious offence for the purpose of s.27(2B) of the Sentencing Act.
Your mother was 81 years of age at the time of the offence. She had been residing at Nazareth House Aged Care Facility here in Ballarat for some two or three months prior to her death. She was apparently in poor health and was unable to take care of herself. She suffered from a history of colorectal carcinoma and was being treated for the consequences of that condition including regular treatment and surgery. In addition to asphyxia, her condition was ultimately a cause of her death. Naturally you were a regular visitor to your mother at Nazareth House. She was in permanent care and had been since about September 2008.
In the evening of Wednesday 10 December 2008 you had a conversation with your mother during a visit. You became aware that she was suffering from a significant headache. By the following day your mother's condition had worsened considerably and she had suffered a stroke and lapsed into a coma. Sometime on Thursday 11 December you visited your mother and attempted to speak with her in Dutch, her native language, as she had recently begun speaking only in that language. Despite your efforts, you could not understand what your mother was saying and she did not recognise you as her daughter.
On Friday 12 December 2009 your mother had lapsed into a coma and you and other family members were being advised by doctors that her was imminent. As the weekend progressed her breathing became more laboured, shallow and was noisy. During this time you were visiting your mother regularly. You stayed with her for a significant amount of time over the ensuing period during which time other family members also visited her bedside. On Sunday 14 December 2008 you remained at Nazareth throughout the day. By 10.15 pm the only remaining visitors with your mother were you, your sister-in-law Lynette, your brother (and Lynette's husband) Bill and their two children. By this stage your mother's breathing was apparently very shallow and during the day her breathing had, according to witnesses, become noisy with a build up of fluid in her lungs.
At approximately 11 pm Bill and Lynette's children left your mother's room, leaving you and Lynette alone. Your brother Bill had presumably left the room at some time between 10.15 and 11 pm. A short time later Lynette apparently left your mother's room also thus you were alone with her. You were likely to have been alone with your mother for about 15 minutes. You told police that you then you used your left hand to tilt your mother's head forward to restrict her breathing. You used your index finger and thumb to pinch your mother's windpipe after locating it in her throat to restrict her breathing. You apparently admitted that you continued to hold your mother's windpipe until you could no longer feel her breathing.
Your sister-in-law re-entered the room a short time later and observed that there was dark brown fluid coming from your mother's mouth. You said something to the effect that “this was it” or that she had taken her final breath. Lynette then checked for a pulse but was unable to find one. However, the evidence indicates that after your actions there remained some signs of respiration. After that the process began of contacting relatives who had begun to attend your mother's room. You withdrew a short time later and were found sitting in the dark in a chapel a short distance away by a sister. You were apparently praying. Some time later you went home, took sleeping tablets and went to bed.
As you said to the police you were aware that your mother did not want to be resuscitated from any medical condition that would leave her in any kind of vegetative state.
The medical evidence indicates that it could not be established that your actions were the cause of your mother's death as opposed to the considerable disease processes that she suffered from. Hence the presentment alleges the offence of attempted murder.
On Monday 15 December 2008 you apparently sought out your friend and co-worker Amber Welsh and told her that you had taken your mother's last breaths. Ms Welsh tried to convince you to see a psychologist and later your doctor, Dr Nicholas Kimpton. Ms Welsh also contacted your husband and told him of the admissions you had made to her. You apparently did attend Dr Kimpton's surgery that day and also admitted to him that you held your mother's throat to stop her from breathing. Dr Kimpton informed you and your husband that he was obliged to inform the police of your admissions.
On Monday 15 December 2008, being the day after your mother's death, you attended the Ballarat Police Station. This seems to have occurred as a result of a discussion with Dr Kimpton. On presentation you were interviewed in relation to this matter and during the course of the interview you twice described what had occurred. The first part of the interview concluded at a point when you were drowsy, having taken some medication earlier. As I understand the evidence, you were then given a chance to have a rest or a sleep, and then were asked to go through the process again for a member of the Homicide Squad, and you did so.
Your answers to the questions you were asked were candid and no one suggests they were other than what you believed to be the truth of what occurred. You thus made admissions about your actions on audio and later video tape, without which the charge to which you have pleaded guilty would be unsustainable. At the conclusion of the interview you were informed by members of the Homicide Squad that you would be charged with the murder of your mother. I am informed that you then spent two days in custody in Ballarat, and a further nine days in custody at the Dame Phyllis Frost Centre in Deer Park. It is clear that without your admissions to the police there would be no other evidence capable of sustaining the charge against you and but for your admissions, the matter would have gone undetected. Mr Marsh of counsel on your behalf rightly places significant weight on that matter.
On 16 December 2008, the pathologist Dr Michael Bourke carried out a post-mortem. As a result of his examination and observations, it would seem likely that whatever pressure you applied to your mother would not have been significant. He was unable to detect any sign of your actions or any immediate pathological consequence.
I have been provided with eight victim impact statements. Those statements identify the significant stress that has befallen this family as the result of the death of Agnes Caris. Clearly some members of the family are hostile and unforgiving of your actions, others are more supportive. There is nothing that this court can say which will resolve those issues: they are a direct result of your actions, which were unlawful. One can only hope that with the passage of time the effect of these fractures will diminish. Such victim impact statements demonstrate the undesirable consequences, even in these circumstances, of you having taken the unilateral action that you did. I have taken these victim impact statements into account in the sentence I will impose on you.
At the time of the offence you were aged 50 years and were working as a payroll clerk for the Department of Human Services. You were born in Ballarat and have five siblings. You were married in 1976, and have three children and five grandchildren. Your father died of cancer in what appear to have been difficult circumstances in 1997. As I understand the material, you are not in paid employment, your former employer not having renewed your contract in October 2008, possibly on account of these proceedings.
I have read the psychological report of Mr Patrick Newton dated 3 December 2009, tendered on your behalf on your plea. Mr Newton details a long history of depression, characterised as a chronic and apparently sufficiently severe condition to diagnose “major depressive disorder, recurrent.” According to your report to Mr Newton, you experienced your first depressive episode in 1983 after the birth of your third child. Further depressive episodes occurred, particularly after your father's death in 1997. Your grief response to his death was according to Mr Newton complicated and "both more intense and more prolonged than typical". Over a long period you have been taking the drug Effexor for your condition.
In December 2007 you were referred to Ms Nicole Phelps, psychologist, for further treatment of your condition. You attended approximately six sessions with Ms Phelps, where a number of issues, one being your relationship with your mother, were discussed. More information in this regard is provided in Mr Newton's report. It appears from Mr Newton's report that your relationship with your mother and your five siblings created some tension over a period of time. Tensions also arose when your brother John died at the age of 15 in very tragic circumstances.
Mr Newton concludes his report with a recommendation that you should not be sentenced to a term of imprisonment. He indicates that imprisonment would have a very grave impact on you indeed. He notes that you reported to him some transient suicidal ideation and he expressed concern about those ideations. He describes you as emotionally vulnerable and psychologically fragile. Furthermore, Mr Newton describes you as being overly empathetic and likely to project your feelings and reactions onto others.
Very relevantly you have no prior convictions and you are a person entitled to be treated as a person of good character.
There could be no question that whilst unlawful, your actions on 14 December 2008 were motivated by the suffering with which your mother was afflicted. Her condition was, as you understood it, irretrievable, and you sought to bring an end to her suffering and that of your family who were required to share that suffering with her. You have shown a high degree of remorse for your actions. Without your candid admissions to the police there would be no basis for the charge against you, as I have said, and I am satisfied that those admissions were a reflection of your remorse.
On any view this is a very unusual example of attempted murder. First, in relative terms there is an absence of violence and the circumstances were fundamentally concerned with your mother's fatal illness. Any attempt by one individual to cause the death of another is serious criminal conduct, but it is difficult to imagine an example of the offence of attempted murder that would be lower on the scale of offending than your conduct is. You have displayed remorse for the consequences of your actions for your family. It is now apparent that relationships within your family have been fractured.
There has been no attempt on your behalf to conceal what you did, and as I have earlier noted, you related the events twice to members of the police force. Your pre-existing depressive disorder on one view has been worsened by your conduct.
I am unable to see any benefit to the community or to you in a sentence which requires you to be actually incarcerated. In appropriate cases the law both sanctions and indeed requires the exercise of mercy, and this is such a case.
As Charles JA observed in R v. Miceli[1],
"…a proper consideration and evaluation of all the relevant extenuating circumstances conduced to clemency such that a merciful sentence should be imposed."
[1][1998] 4 VR 588 at 592
Charles JA also referred to Windeyer J in Cobiac v. Liddy[2] where, at page 269 of the report, he noted that mercy
"...is a capacity in special circumstances to avoid the rigidity of inexorable law… [as the] very essence of justice."
[2](1969) 119 CLR 257
Your mother's brother and your uncle, Andy Naus, was called to give evidence on your behalf. He supported you and stated that he thought it was a compassionate act with no vengeance which gave rise to your conduct and discharge. He gave evidence that his sister, your mother, “was suffering so much” and because she was in a coma, there was "no coming back."
During the course of a very helpful plea made on your behalf, Mr Marsh of counsel accepted that a sentence of imprisonment was necessary, but submitted that given the exceptional circumstances of this case, it should be wholly suspended. Mr Marsh submitted the following matters amounted to exceptional circumstances:
(a) the nature of your actions as I have outlined;
(b) your motivations as I have also outlined;
(c)your voluntary confession; your expressions of remorse;
(d)your prior good character and lack of prior convictions; and
(e) -standing and pre-existing depressive condition.
Counsel on behalf of the Crown submitted that attempted murder is a very serious offence, but accepted that for the purpose of the Sentencing Act, in your case, exceptional circumstances have been established on your behalf and that a wholly suspended sentence would be appropriate. With respect, I agree with those submissions.
Accordingly, in respect of the count of attempted murder of your mother Agnes Maria Caris, I sentence you to two years' imprisonment which I direct should be wholly suspended.
I consider it desirable that the sentence of imprisonment that I have imposed be wholly suspended and pursuant to s 27(1A) of the Sentencing Act, I indicate that I have considered the need, considering the nature of the offence, its impact on any victim of the offence and any injury, loss or damage resulting from the offence, to ensure that the sentence adequately manifest the denunciation by the court of the type of conduct in which you engaged. I have also considered whether the sentence adequately deters you or other persons from committing offences of the same or similar character and reflects the gravity of the offence. I consider that there is no prospect of you committing other criminal offences hereafter.
I impose a wholly suspended sentence on you in the knowledge that the offence of attempted murder is a serious offence within the meaning of the Sentencing Act and I have done so because I consider that; (a) it is appropriate because of the existence of exceptional circumstances; and (b) it is in the interests of justice: both of which are required by s.27(2B) of the Sentencing Act.
The exceptional circumstances that exist are in my view; your lack of prior criminal history, your remorse; the absence of significant violence; your cooperation with police; your apparent motivation for committing the offence and your pre-existing psychological state.
Pursuant to s.6AAA of the Sentencing Act, I am obliged to indicate the discount that has been given to you for your plea of guilty. I declare that but for your plea of guilty, I would have sentenced you to a period of two years and nine months’ imprisonment. I would have also suspended that sentence, but would have done so for a period of three years.
For the purpose of the sentence I declare that you have served ten days pre-sentence detention.
I am required to explain to you that if you commit any offence punishable by imprisonment during the next two years, and assuming a court finds you guilty of such an offence, then you may be required to go to prison for the period of this sentence, or some lesser period, or the period of the suspended sentence may be extended. Even if the suspended sentence were you be extended, you may still be required to serve part of the sentence of two years' imprisonment.
I think given the seriousness of the offence I will make a forensic order as requested by the Crown in accordance with s 464ZF of the Crimes Act.
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