R v Costa (No 2)
[2015] ACTSC 375
•3 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Costa (No 2) |
Citation: | [2015] ACTSC 375 |
Hearing Dates: | 17 September, 2 December 2015 |
DecisionDate: | 3 December 2015 |
Before: | Murrell CJ |
Decision: | Sentenced to 16 years’ imprisonment, with a non-parole period of 8 years’ imprisonment |
Catchwords: | CRIMINAL LAW –Sentence – particular offences – murder – mental impairment – intoxication – aged offender |
Legislation Cited: | Crimes Act 1900 (ACT) s 12 Crimes (Sentence Administration) Act2005 (ACT) ss 288(b), 293 Crimes (Sentencing) Act 2005 (ACT) s 33 |
Cases Cited: | Monfries v The Queen [2014] ACTCA 46 R v Massey (Unreported, Supreme Court of the ACT, Gray J, 28 July 2011) The Queen v Pham [2015] HCA 39 |
Parties: | The Queen (Crown) Luigi Costa (Offender) |
Representation: | Counsel Mr S Drumgold (Crown) Mr R van de Wiel QC with Mr I Bradfield (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Lynch Solicitors (Offender) | |
File Number: | SCC 240 of 2012 |
MURRELL CJ:
The offender was charged with the offence that on 22 July 2012 at Canberra he murdered Terence John Freebody contrary to s 12 of the Crimes Act1900 (ACT). The offender pleaded that he was not guilty by reason of mental impairment. He was tried by a jury in March and April 2015. On 14 April 2015, the jury found the offender guilty of murder.
The maximum available penalty is life imprisonment; that penalty is reserved for the worst category of case.
The offender has been in custody since his arrest on 22 July 2012 and the sentence should commence on that date.
The Offence
The deceased was 89 years old. He suffered from dementia; he was withdrawn and had a poor memory. He required hearing aids, without which he was largely deaf. He had difficulty with mobility and was at risk of falling. If he fell, he could not stand up unaided. He was cared for by his wife, upon whom he was emotionally and physically dependent. The deceased was well known in the Canberra district. He had made a significant contribution to the local community. In his youth, he was an eminent sportsman, he was a World War Two veteran, and he had been a well-known businessman. He had strong family and community links.
The offender had been a neighbour of the deceased and his wife for about 15 years. The offender was a retired car salesman with significant assets who lived alone in a substantial residence.
Prior to July 2012, there had been little interaction between the parties, and there was no animosity between them. In return for a small favour performed by the deceased, the offender invited the deceased and his wife to come to the offender’s house for a drink on Sunday, 22 July 2012.
On the afternoon of 22 July 2012, the deceased and his wife attended the offender’s house. Over a period of about three and half hours, the offender was hospitable, and produced a number of bottles of wine and some food. The offender and the deceased consumed a substantial quantity of alcohol, although the deceased’s wife drank little. The offender became increasingly disinhibited. He used language that the deceased’s wife found to be objectionable. When she said so, the offender’s temper flared and he told her to leave. She left at 5:01pm, expecting that the deceased would follow soon afterwards.
At 5:03pm the offender telephoned a friend. The call diverted to voicemail and the offender left a message asking his friend to telephone the police and request them to attend the offender’s premises. At 5.06pm, the offender telephoned 000, and asserted that the deceased had tried to attack him. The deceased was moaning in the background.
At the time that the calls were made, the offender had not yet used a knife to assault the deceased. At the end of the incident, the offender’s hands were covered with blood, but no blood was found on telephones at the residence. The moaning of the deceased that could be heard in the background to the telephone call was probably due to ante-mortem fractures to the deceased’s T11 and T12 vertebrae, consistent with the deceased falling backwards over a low object. Such injuries are very painful. After falling and fracturing his vertebrae, the deceased would have been lying on the floor, unable to stand up.
It must have been soon after he made the telephone calls to his friend and 000 that the offender attacked the deceased with a knife, inflicting multiple stab wounds, including a deep wound to the left side of the deceased’s neck which severed the deceased’s left carotid artery. Within two minutes of the severance, rapid blood loss would have resulted in the deceased’s death.
By the time that police arrived at 5.26pm, the deceased had passed away. A 30cm knife with a bloodied handle was found adjacent to the offender, who was experiencing incontinence.
There were knife injuries and blunt force injuries to the face and neck of the deceased, incision injuries to his chest including one very deep incision, and knife scratch injuries to the deceased’s genital area which were sustained post-mortem.
Victim Impact
The deceased’s wife and sons read victim impact statements to the Court.
The speed and brutality of the events on 22 July 2012 were deeply shocking to the deceased’s wife. She understandably (albeit irrationally) feels a sense of responsibility for the events. After the offence, the deceased’s wife was emotionally unable to remain in her home because of the disturbing proximity of her home to the scene of the murder. She often thinks about the deceased’s horrific last moments. She finds it difficult to live alone. She suffers from anxiety, insomnia, nightmares, panic attacks and a loss of trust and self-confidence. She feels vulnerable and she is reluctant to interact with strangers. There has been a dramatic financial impact on her lifestyle.
The deceased was close to his two sons, and their partners and children (the deceased’s grandchildren), who miss him greatly. His sons feel emotionally tortured when they reflect upon the violence inflicted upon the deceased. They continue to experience anger, depression and great sorrow about the loss of their father and the manner in which he lost his life.
The Court acknowledges the severe and ongoing trauma suffered by the deceased’s wife, sons, other family members and friends.
Alcohol
At 7.05pm on 22 July 2012, the offender had a breath alcohol concentration of 0.157g of alcohol per 210L of breath. The police who attended the scene described him as “moderately intoxicated”.
Dr Perl, a highly respected forensic pharmacologist, said that the offender’s blood alcohol reading would have been 0.149 – 0.170g/100ml blood at about 5pm on 22 July 2012, and the most likely reading was 0.156g. The offender had a history of alcohol abuse, self reporting the consumption of two bottles of wine a day over many years. Dr Perl said that daily heavy drinking would have given the offender a high tolerance to alcohol but that, at a reading of 0.156g, the offender’s judgment and decision making skills would nevertheless have been impaired. In an alcohol tolerant person, such a reading would have had no significant impact on his ability to decide whether conduct was wrong, but he would have been less likely to reflect on a decision and more likely to exercise poor judgment. Dr Perl dismissed the possibility that the offender’s medication would have impacted significantly on his cognitive abilities.
Cognitive Impairment and Dementia
At the trial, there was considerable evidence about whether the offender suffered from dementia, the role that any dementia may have played in relation to the offence and the interplay between any dementia and intoxication.
Dementia is a term that covers a range of neurological disorders that have different causes. It is associated with declining ability to recall and learn new information, declining executive function (ability to plan, reason, carry out complex tasks and exercise self-control) and declining social cognition (ability to make proper social judgments, understanding the impact of one’s behaviour on others). It is often first observed as memory impairment. Alcohol abuse and vascular problems are overlapping risk factors for dementia.
At the sentence hearing, Dr Kumar, a psychiatrist who has expertise in dealing with the elderly, explained that there is a difference between age-related cognitive decline (shrinkage in the brain and associated slower processing of information), mild cognitive impairment that falls short of dementia and which may or may not eventually progress to dementia, and dementia proper (which may be mild, moderate, severe or advanced). The boundaries between these conditions are difficult to define. Further, the level of impairment experienced by an individual may fluctuate considerably, even changing from morning to evening.
Prior to the offence, the offender’s behaviour was consistent with dementia; there had been an episode of misidentification; the offender had expressed mistaken concerns about items being lost or stolen; he had had been mistaken about appointments and had become dishevelled in appearance (formerly, he had been very well groomed and punctual about appointments); his financial paperwork had become disorganised and his son had become concerned about the offender’s ability to manage his financial affairs (although the offender was formerly an astute businessman).
On 25 August 2012, the offender was seen by Dr McMahon, a clinical psychologist engaged by the defence. He concluded that the offender was suffering from severely impaired memory function associated with dementia. However, Dr Langeluddecke, a highly qualified clinical neuropsychologist called by the Crown, criticised Dr McMahon’s testing methods and warned against relying on his results. Because of Dr Langeluddecke’s forceful and apparently justified criticisms of Dr McMahon’s methods, I place little reliance on his results.
Nevertheless, there was other evidence establishing that, at the time of the offence, the offender was suffering from dementia. The evidence came from psychiatrists who saw the offender reasonably soon after the offence.
On 25 July, 25 August and 10 September 2012, a consultant psychiatrist employed by ACT Health interviewed the offender at the Alexander Maconochie Centre (AMC). He considered that the offender was probably suffering from dementia.
On several occasions, the offender was seen by Dr Allnutt, a consultant forensic psychiatrist, who provided reports to both the Crown and defence. He concluded that, at the time of the offence, the offender was suffering from a disturbed mental state secondary to underlying dementia, which was aggravated by alcohol and possibly by medications.
In 2012 and 2013, the offender was seen by Professor Mullen, an eminent forensic psychiatrist engaged by the defence. Professor Mullen said that the offender was suffering from dementia. In Professor Mullen’s opinion, at the time of the attack on the deceased, the offender was in “a grossly disorganised state of mind”. The offender’s confused state of mind resulted from the impact of alcohol on the offender’s vulnerable (demented) brain. In that state of mind, the offender was unable to think rationally about the nature, consequences or reasonableness of his actions. Professor Mullen explained that his opinion about the offender’s confused mental state was supported by the facts that there was no motive for the attack, the attack was unplanned, the offender was severely incontinent at the time of the attack, and the offender behaved in a bizarre and changeable way following his arrest (singing, making inappropriate comments, expressing affection for an arresting officer, and then suddenly becoming aggressive towards police).
Recently, Dr Kumar undertook several tests on the offender for the purpose of exploring his current cognitive deficits and ascertaining whether he should be continued on Aricept medication (which is administered to dementia patients, particularly those who suffer from Alzheimer’s disease). On the four cognitive tests undertaken by Dr Kumar, the offender’s performance was above the range where further testing for dementia was indicated. However, Dr Kumar said that, when considering the mental state of the offender, one would need to consider not only the test results but also whether there had been a decline from previous functioning, the impact of other factors (such as physical factors or anxiety), and the progression of any decline. Dr Kumar concluded that the use of Aricept was beneficial for the offender.
Dr Kasinathan, a forensic psychiatrist employed by ACT Health, considered Dr Kumar’s test results and reviewed the offender on 19 August 2015 for the purpose of reporting to the Court. Dr Kasinathan concluded that there was evidence of mild cognitive decline from the previous level of performance in the domains of memory and possibly executive functioning, but not to the extent that interfered with independence in everyday living. The condition was the result of heavy alcohol consumption.
Both Dr Kumar and Dr Kasinathan were of the view that, while the offender currently suffers from a mild cognitive disorder, it is not sufficiently severe to be classed as “dementia”.
At the sentence hearing, there was also evidence from the offender’s case manager at the AMC, a psychologist, which was to the effect that the offender’s long-term memory is good, but his short-term memory and ability to comprehend advice is poor. For example, the offender has difficulty grasping the significance of ongoing ACT Civil and Administrative Tribunal (ACAT) guardianship proceedings, and it is necessary to give repeated explanations. The offender sometimes forgets that he has had a recent visit from his son.
The distinction that Dr Kumar and Dr Kasinathan sought to draw between mild cognitive disorder and dementia proper was not a distinction which received attention at the trial. Rather, at the trial, despite ample evidence to the contrary, the Crown contended that the offender suffered from no cognitive disability.
In reaching their views, neither Dr Kumar nor Dr Kasinathan had the benefit of the psychiatric evidence given by the expert witnesses at the trial (although Dr Kasinathan had listened to some of the evidence given by Professor Mullen). Further, the offender’s performance in recent cognitive testing may have been affected because his general physical and mental well-being has improved with the care that he has received in custody and because it is now much more difficult for him to access alcohol. These factors may be relevant when comparing current test performance against previous test performance. It is important to take into account the evidence of the offender’s case manager to the effect that the offender’s recent memory is very poor and he has difficulty understanding complex concepts.
One cannot ignore the fact that there is no evidence that the offender’s cognitive performance has deteriorated over the past three years, and dementia is characterised by declining cognitive ability. In the case of Alzheimer’s disease, there is a steady decline in cognitive ability. As far as the offender is concerned, Alzheimer’s disease has been excluded as a possible diagnosis. However, other forms of dementia are not necessarily characterised by a steady decline in cognitive performance.
Fortunately, for sentencing purposes it is not necessary to tease out and resolve all the nuances of the expert evidence given at the trial and the sentence hearing. It is clear that, at the time of the offence, the offender was cognitively impaired and that he is currently impaired.
Defence of Mental Impairment
The jury verdict establishes that:
(a)The jury was satisfied beyond reasonable doubt that the deliberate act of the offender caused the death of the deceased.
(b)The jury was not satisfied on the balance of probabilities that, disregarding self induced intoxication, the effect of dementia/cognitive impairment was that the accused did not know the nature and quality of his conduct or did not know that his conduct was wrong.
(c)The jury was satisfied beyond reasonable doubt that the offender specifically intended to cause the death of the deceased or he acted with reckless indifference to the probability of causing death or he specifically intended to cause serious harm to the deceased.
In relation to issue (b), the jury was required to consider whether, when the offender killed the deceased, the offender was suffering from a mental impairment (dementia was the term used at the trial). If the jury was so satisfied, the jury was then required to consider whether, disregarding self induced intoxication, the effect of the dementia was that the offender did not know the nature and quality of his conduct or did not know that his conduct was wrong.
The psychiatric evidence called at the trial clearly established that, at the time of the offence, the offender suffered from dementia. However, the evidence did not establish that, disregarding self induced intoxication, the effect of the dementia was that the offender did not know the nature and quality of his conduct or did not know that it was wrong. There was ample evidence that the offence resulted from the effect of significant intoxication on a man with underlying cognitive impairment. The evidence given at the sentence hearing by Dr Kumar and Dr Kasinathan is consistent with the approach taken by the jury. Dr Kasinathan recently reported that the greatest contributor to the offender’s offending conduct was substantial alcohol intoxication.
Disregarding self induced intoxication, the offender’s dementia (or mild cognitive impairment, if that is a more appropriate term) did not prevent him from understanding the nature and quality of his conduct or knowing that (from the perspective of a reasonable person) it was wrong.
Relevance of Mental Impairment to Sentencing
It is well established that mental illness or impairment may be relevant to sentencing in a number of ways: Monfries v The Queen [2014] ACTCA 46; R v Verdins; R v Buckley; R v Vo [2007] VSCA 102 at [26] and [32].
First, it may inform an assessment of the mental culpability of an offender.
Second, it may make imprisonment more difficult for an offender, for example if the prison environment will aggravate the offender’s mental impairment or mean that it is more difficult for the offender to access appropriate treatment.
Finally, it may inform a variety of sentencing purposes. For example, it may make the offender a less suitable vehicle for a message of general deterrence, or it may suggest that there is a high risk of reoffending that calls for a longer sentence in order to provide adequate protection for the community.
In this case, the psychiatric evidence establishes that, at the time of the offence, the offender was suffering from mild dementia/a mild neurocognitive disorder, probably due to longstanding alcohol abuse.
In relation to the offender’s moral culpability, I note that, soon after the offence, the offender claimed that he had been attacked. I am not satisfied on the balance of probabilities that this was a delusional belief, and it does not operate to reduce the offender’s moral culpability.
If the offender had not consumed an excessive amount of alcohol, the offence would not have occurred. Nevertheless, the offender’s mental impairment did play a role in the commission of the offence. It meant that the offender’s mental state was more vulnerable to the impact of the excessive consumption of alcohol. It also reduced the offender’s ability to appreciate the impact of alcohol on his mental state.
There is no suggestion that the offender’s mental impairment makes imprisonment more difficult for him. He is receiving good physical and psychological care in custody. I accept the evidence of Dr Kasinathan that:
given his recent and current state of emotional wellbeing and as his medical care was highly optimised in custody, it was not envisaged that custody would bear an onerous burden upon Mr Costa’s physical and mental wellbeing, apart from him being advanced in age.
In relation to other sentencing purposes, the offender’s mild dementia is of limited significance. It does not render him an inappropriate vehicle for a message of general deterrence. Any offence of violence that is caused by the overconsumption of alcohol calls for a message of general deterrence although, in this case, the interplay between mental impairment and alcohol must be acknowledged.
Objective Seriousness
It goes without saying that any offence of murder is an offence of utmost objective seriousness; the seriousness of any such offence is reflected in the maximum available penalty of life imprisonment.
In assessing the relative objective seriousness of an offence of murder, all the surrounding circumstances must be considered. Factors that may inform the degree of relative seriousness include the motive for the murder (for example, whether the killing was designed to exact revenge, was a response to an insult, or was associated with a poorly executed robbery), the degree of planning (for example, whether it was a cold-blooded and premeditated killing or there was a spontaneous loss of temper), whether the murder was committed in company, the means of murder (e.g., whether a single blow was delivered or there was a planned shooting), the vulnerability of the victim and whether the victim’s body was mutilated.
In this case, relevant circumstances include:
(a)At the time of the offence, the offender suffered from mild dementia (or mild cognitive impairment). As explained above, when considered in isolation from the effect of alcohol, the extent of the offender’s mental impairment was not such that he did not know the nature and quality of his conduct or did not know that it was wrong. However, the offence resulted from the effect of alcohol on a cognitively compromised brain; the combination caused the offender to experience a confused mental state.
(b)The offender did not plan the murder. He did not obtain possession of the murder weapon (the knife) before he began to behave aggressively towards the deceased.
(c)The deceased was very vulnerable. He was elderly, physically impaired (mobility impaired and substantially deaf), and intoxicated. He was alone with the offender in the offender’s home. At the time when he was fatally wounded, the deceased was defenceless. He was lying on the floor in pain, having fallen and fractured his T11 and T12 vertebrae. The vulnerability of the deceased would have been obvious to the offender.
(d)In no sense did the deceased contribute to the circumstances that led to his death.
(e)The offender inflicted many injuries on the deceased. There was a frenzied, albeit brief attack. Apart from the fatal injury and other knife wounds (including one very deep wound to the abdominal area), the deceased suffered blunt force injury to his face and neck, possibly caused by stomping. He suffered the indignity of post-mortem knife injuries to the genital area.
By virtue of being an offence of murder, this was an extremely serious offence. Further, the offence was perpetrated against a vulnerable victim and it involved a frenzied and multi faceted attack.
However, I do not accept the Crown submission that the offence is in the worst category of murder offences. The attack was spontaneous and unplanned. The murder weapon was obtained at the last moment. Following the departure of the deceased’s wife, the behaviour of the offender changed rapidly and for no obvious reason. The motive for the attack is unknown. Both before and after the incident, the behaviour of the offender was somewhat bizarre. He asked his friend to telephone the police and he himself dialled 000 before he committed the murder. When police attended the residence, the offender expressed inappropriate sentiments of affection towards one of the officers. Culpability is somewhat moderated because the offence resulted from the impact of excessive alcohol consumption on a compromised brain (the latter being the moderating factor, not the intoxication).
Subjective Circumstances
At the time of the offence, the offender was 69 years old. He is now 72 years old.
He has no prior criminal history.
Apart from these matters and his mental impairment, the offender did not advance strong subjective circumstances.
In 1954, the offender’s family migrated from Sicily to Australia. His two brothers live interstate.
The offender was married for many years, but separated from his wife in 1990. There are three adult children of the marriage, none of whom is particularly close to the offender.
The offender operated a very successful car dealership, which he sold when he was 42 years old. Subsequently, he dealt in real estate, accumulating significant wealth.
Prior to his incarceration, the offender lead a relatively lonely life. He had little contact with his family and few friends. Similarly, in custody he has little interaction with other prisoners.
The offender’s history of alcohol abuse is associated with his current physical and mental difficulties. He suffers from an enlarged liver and atrial flutter. In custody, his physical problems are appropriately monitored and medicated.
As discussed above, currently there is evidence of mild cognitive impairment involving the frontal and temporal brain regions, associated with chronic heavy alcohol use and possibly also with vascular factors such as hypertension and high cholesterol. There is no evidence that, since he has been incarcerated, the offender’s cognitive function has deteriorated.
The offender’s financial affairs are now managed by his son.
The offender has not demonstrated remorse.
Having regard to his criminal history and age, and the circumstances of the offence, I consider that the offender represents almost no risk of reoffending if he abstains from alcohol consumption. It is a relevant (although not strongly determinative) consideration that the offender is now 72 years old and it may be reasonable for him to aspire to surviving long enough to be released from custody to serve a significant part of the sentence (and his last years) in the community. These considerations will be reflected in the non-parole period that is imposed.
In addition to considering the relevant objective and subjective features, when sentencing the offender it is necessary for the Court to consider any other matters referred to in s 33 of the Crimes (Sentencing) Act2005 (ACT) (insofar as they are known and relevant). All relevant matters have been addressed above.
Comparative Cases
A critical sentencing parameter is the maximum available penalty which, in this case, is life imprisonment.
As the Crown pointed out in its submissions, although life imprisonment is reserved for the worst category of case, in practice a sentence of life imprisonment is not necessarily the most crushing sentence. In the ACT, when a person is sentenced to life imprisonment they become subject to ch 13 of the Crimes (Sentence Administration) Act2005 (ACT) (Sentence Administration Act). Pursuant to s 288(b) of Sentence Administration Act, after serving 10 years’ imprisonment, a prisoner who satisfies the criteria in s 293 of the Sentence Administration Act can apply for release on licence.
The Crown referred the Court to other cases involving sentences imposed for murder. Given the maximum available penalty, it is not surprising that the sentences range from 16 years’ imprisonment (R v Massey (Unreported, Supreme Court of the ACT, Gray J, 28 July 2011)) to sentences of life imprisonment (most recently in R v Vojneski (No 4) [2014] ACTSC 307).
Although, considered overall, the cases are of some use in that they provide some indication of sentences imposed in the ACT for the offence of murder, the individual sentences necessarily reflect the objective and subjective considerations that were peculiar to the individual cases. The proper approach to the assessment of sentences in other cases was recently discussed by the High Court in The Queen v Pham [2015] HCA 39. As Bell and Gageler JJ said at [49]:
[i]t is not meaningful to speak of a pattern of past sentences in the case of offences which are not frequently prosecuted and where a relatively small number of sentences make up the set.
(Emphasis added)
Sentence
The offender is sentenced to16 years’ imprisonment, to date from 22 July 2012 and end on 21 July 2028.
I impose a non parole period of eight years from 22 July 2012. The non parole period will expire on 21 July 2020.
| I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 4 December 2015 |
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