R v Curtis
[2006] VSC 377
•19 October 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1613 of 2005
| THE QUEEN |
| v |
| MARY ROSE CURTIS |
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JUDGE: | Kellam J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 September 2006 | |
DATE OF SENTENCE: | 19 October 2006 | |
CASE MAY BE CITED AS: | R v Curtis | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 377 | |
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CRIMINAL LAW – Sentencing – Murder – Plea of guilty – Intellectual disability.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Williams SC | Office of Public Prosecutions |
| For the Accused | Mr J. Montgomery | Victoria Legal Aid |
HIS HONOUR:
You, Mary Rose Curtis, have pleaded guilty before me to one count of murder. The maximum penalty for murder is life imprisonment. The circumstances under which your offence occurred are as follows.
Your victim, Jack Hazeldene, was aged 80 years. He lived in Wonthaggi. His partner had died in 1997 and from that time until the date of his death on 5 March 2005 he lived alone. You took up residence in the township of Wonthaggi in 1997 and befriended Jack Hazeldene after the death of his partner. It would appear that this friendship was generally a platonic friendship, although the precise nature of the relationship may well be somewhat more complex. There is evidence that the deceased told others that he gave you food, beer and cigarettes. There is evidence that he told others that he gave you money in return for sex. However, the real truth about the nature of the relationship is unclear on the evidence before me.
On Saturday, 5 March 2005, at approximately 12.00pm, you took some beer and attended at the home of a friend of yours, one David Dalton. He has deposed to the fact that you consumed one can of light beer whilst in his presence and that you did not appear to be intoxicated, nor did you mention that you had any problems or other difficulties. You informed Mr Dalton that you were going to visit Jack Hazeldene who lived nearby. You then left.
Mr Dalton states that you returned about half an hour later and said, “I’ve done something wrong. He started mucking around with me so I pushed him and he fell down and hit his head”. You told Mr Dalton that there was “a bit of blood” and suggested that an ambulance be telephoned. You and Mr Dalton then consumed some beer before he went to a phone box and telephoned the ambulance service. That telephone call was made at 1.49pm. The Wonthaggi Ambulance Service attended at Mr Hazeldene’s house at 1.52pm and found him dead on the floor of the kitchen. Police attended a short time later and made observations of Mr Hazeldene. It was observed that there was an electrical cord tightly wrapped around his lower legs, there was a towel over his head and there was a pool of blood beside his head.
Subsequently, police from the Crime Scene Unit attended. They observed a black electrical‑type cord wrapped around Mr Hazeldene’s ankles and two further electrical cords wrapped around his body and neck region. The cord wrapped around his body was still attached to a heater and the second cord wrapped around his neck area was still attached to a clock radio. Closer examination revealed that both cords were in fact wrapped around the neck region of the deceased.
It should be noted that subsequently you left Mr Dalton’s house and returned to your own home where you had a conversation with your son. He states that you arrived home at about 3.00pm and said, “I have to tell you something but I don’t know if I can tell you”. You said, “I think I’ve killed Jack. He was saying bad stuff about me so I grabbed him from behind and strangled him”. You then left in a taxi and travelled some distance to the Daylston Hotel. The taxi driver who took you there has known you for some eight years. He considered you to be sober and calm.
Subsequently you moved from the Daylston Hotel to the Kilcunda Hotel. At about 4.40pm you caught a taxi from there back to Wonthaggi. The taxi driver who drove you back to Wonthaggi stated that you did not appear to be drunk but that you were upset in that you were sobbing. As the taxi entered Wonthaggi you were apprehended by divisional van police and arrested. You were found to have the sum of $350 in $50 notes in your shoulder bag. En route to the interview room you became aggressive and loud to the point of requiring physical restraint. For this reason you were examined by a local general practitioner to determine your fitness for interview. A breath test was conducted. It produced a reading of .114 at 9.00pm and it was determined that you were unfit for interview due to the effects of alcohol.
You were interviewed on Sunday, 6 March 2005. You told police you had known the deceased for eight to nine years and that you had not been in a sexual relationship with him. You told police that you were drunk on the day of the killing but that you were aware of what you were doing. Otherwise you made a “no comment” record of interview.
The autopsy conducted upon Mr Hazeldene revealed that the cause of death was “ligature strangulation in a man with evidence of blunt head trauma”. The pathologist who conducted the autopsy made observations of the cords that were wrapped around the deceased’s ankles and neck. In particular, he observed that the cords which had been wrapped around the neck of the deceased were tied together in a “complex tie” over the anterior aspect of the neck. Obviously some time was spent by you in strangling him and it cannot be said that his death resulted as a momentary flash of anger from you. Insofar as the injury to the head sustained by the deceased is concerned, the pathologist observed that a lacerated injury to multiple planes of his head could not be explained in a simple form. It was observed that there were bruises in multiple planes of the head. In addition, fractured left upper ribs suggested the application of blunt force to this region as well.
The prosecution contends that you killed Jack Hazeldene in the context of you wanting money from him. It is contended that the sum of $350 found in your handbag could not have come from your own resources. On the other hand, Mr Montgomery, counsel who appeared for you upon your plea points out that you told David Dalton “I’ve done something wrong. He started mucking around with me so I pushed him and he fell down and hit his head.” You told Mr Dalton that the deceased had tried to take your clothes off. Whatever the precise circumstances of your relationship with the deceased, it would appear that in general you were friends. Mr Coldabella, a friend of the deceased, gave evidence at the committal hearing that “Jack seemed pretty happy with having (you) around … “. I am unable to be satisfied beyond reasonable doubt of your motivation for killing him. I accept, however, that whatever it was that caused you to attack him, it occurred spontaneously and was not premeditated.
However, the death of Jack Hazeldene has had a grievous effect upon others. I have before me a victim impact statement prepared by his daughter. It is a moving statement of the loss of a person she describes as her “best friend”. It is apparent that the loss she has suffered will affect her for the rest of her life.
The crime to which you have pleaded guilty is a serious crime indeed. An apparently decent and well liked man has lost his life by your hands. There are, however, a number of mitigating factors. First, and of significance, you have pleaded guilty to the charge of murder. Whilst it is true that you did not plead guilty at the earliest possible opportunity, I accept the submission of your counsel, Mr Montgomery, that in all the circumstances it was appropriate for those advising you to make necessary investigations into your state of mind. In this regard I observe that Mr Montgomery informs me that at all material times your instructions to him were that you wished to plead guilty. You are entitled to the benefit of that plea of guilty in relation to the sentence which I am to hand down. Your plea has saved the cost and inconvenience of a trial, but of considerably more significance, it has saved the potential witnesses, including those who knew both you and Mr Hazeldene, the trauma and unhappiness of giving evidence in a contested trial.
I accept that your plea indicates remorse for your actions. I have been told something of your personal history and your circumstances. You are aged 47 years. You have a number of prior convictions which, as your counsel submits, are the type of convictions associated with a person who has a long history of alcohol abuse. Reports have been tendered before me by consent. The first of those reports is from Dr Ronald Murley, a general practitioner with an interest in general practice psychiatry. Subsequent to 2001, he attended you on 55 occasions. He described you as being a person with a “curious personality, with a dysfunctional childhood and early abuse. She is Maltese, one of 16 siblings, and describes herself as the ‘black sheep’ as she doesn’t get on with any of her relatives. She has two sons, one of whom lived with her as her carer until her apprehension in March”.
He said further that over that period of time you have exhibited many features of depression and that there have been several suicidal gestures including jumping off your roof on two occasions and consequently breaking your ankles. Although he prescribed Zoloft for you in September 2001, he did not consider that you benefited from antidepressants as you were only “partly compliant” and that at the same time you self‑medicated to excess with alcohol.
He reported that you have suffered from a generalised anxiety disorder which you control with alcohol and I quote him “all day long”. Several times over the last three years you have tried to wean yourself off alcohol but your attempts to do so have not been successful. He observed that you are known to Gippsland Psychiatric Services but as they tend not to case manage patients who are inebriated, or with diagnosed borderline features, or, as Dr Murley states, “In Mary’s case both”, their approach has been to discharge you and refer you back to him. It should be noted that Dr Murley endeavoured to obtain a “dual diagnosis team” but to no avail. In this regard the Mental Health System failed you. Dr Murley said that you are well-known to Wonthaggi Police and indeed the source of your referral to him in the first instance was from police.
In early March 2005, you “sacked” Dr Murley as your medical practitioner, telling him not to bother coming to see you again. He said the circumstances of this were that you requested narcotics for your ankle pain. He said that he was cautious and reluctant to prescribe narcotics to you in the circumstances. It appears to me to be clear that Dr Murley did all he could to help you over those three years.
In addition, a report from neuropsychologist Martin Jackson dated 22 August 2005, has been tendered before me. Mr Jackson obtained, as best as he could, a detailed history from you. You informed him that you completed Year 9 at secondary school but left to help your mother look after the 15 children in your family. He reported that you were married when aged 19 and that you have two adult male children. Your husband left you soon after the birth of your second child. In terms of substance use history, Mr Jackson had difficulty obtaining an accurate history of events from you, but you reported that you started drinking at age 13 and that your drinking increased significantly when your marriage broke up. You informed Mr Jackson that you would start drinking after getting up in the morning and that you did not like leaving the house. Alcohol gave you the confidence to do so. You informed him that you would buy a slab of beer and a cask of wine every second day but that in addition people would shout you drinks at the hotel. You have not worked for many years and have been in receipt of the Disability Support Pension. One of your sons has received a Carer’s Pension for looking after you.
Psychological testing of you was conducted by Mr Jackson. He concludes that you are a woman of extremely low to borderline intellectual ability. Testing revealed that across all domains of cognition your performances were found to be generally within the extremely low range. Furthermore, the tests that were undertaken in relation to attention and new learning and memory were found to be worse than would be expected in a person with extremely low to borderline intellectual ability. Your limited capacity and poor learning skills are not typical of persons with a low IQ but are typical of persons who suffer from acquired alcohol brain injury. It should be observed that the testing revealed that you have a full scale IQ of 64. It should be noted that Mr Jackson considers that there are serious concerns about your competency to live independently in the community and to make decisions. He expressed grave concerns about your ability to manage finances and to make considered opinions about competing sources of information and about alternative ways of responding to situations placed before you.
Subsequent to the report obtained from Mr Jackson, Dr Danny Sullivan, consultant psychiatrist, examined you. The reports of your general practitioner, Dr Murley, and of Mr Jackson were provided to Dr Sullivan. At the time of his examination in September 2005, Dr Sullivan had as his principal objective the determination of your fitness to plead. However, he considered that from your early teenage years the alcohol use you described clearly would have satisfied diagnostic criteria for “alcohol dependence” and that you exhibited features of intellectual disability sufficient that you would “most likely be eligible for registration under the Intellectually Disabled Persons Services Act 1986.” Dr Sullivan provided a further report dated 27 August 2006, consequent upon a further interview conducted on 12 August 2006. He observed that over the last year and whilst upon remand you have been treated with antidepressants and low dose antipsychotic medication. You have struggled with isolation, social anxiety and despair at the possibility of a long sentence and you have had issues with other women in the prison. Apparently these issues have precluded you from attending Alcoholics Anonymous. Dr Sullivan concludes that you remain significantly depressed. Previous diagnoses of mild intellectual disability and recurrent depressive disorder remain evident. He considers that you will require ongoing antidepressant therapy at high doses and that you have not yet responded well to treatment. He considers that there has been little progress in dealing with your alcohol dependence and he observes that you required intensive and ongoing alcohol counselling. He observed that you continue to “ruminate on the offence” and that you appear distressed at what you have done. You expressed “significant remorse”. Dr Sullivan observed, “Currently she appears to deny that she could experience pleasure or laugh due to feelings that she must atone for her offence”.
It should be observed that in addition to the above medical reports, two other statements were put before me. First, Mr Ken Turner, who has known you for 15 years, tendered a testimonial. He said that you and he had been close friends and that the deceased was also a friend of his. He said, “Most people don’t understand Mary the way I do. Mary had a lot of problems in her life.” He then referred to a sexual assault which occurred when you were 17. It should be noted that this matter has not been raised with any psychologists or medical practitioners who have seen you and I am unable to say one way or the other whether Mr Turner’s statement is the fact. It would appear that it is something that you have told him at some stage. Nevertheless, Mr Turner states, “Mary has been an alcoholic for a very long time. When Mary drinks she is a different person. She is extremely loud when she has been drinking and wants her own way. When Mary is sober she is great. I know Mary well and I trust her. Mary has never been violent towards me. Mary knows she has a drinking problem and wants help. I took Mary to Alcoholics Anonymous a few times.” It is relevant to note that Mr Ken Turner is employed by Silver Circle as a carer for the elderly.
In addition, a testimonial was tendered before me signed by Catherine Smith, the Chaplain of the Catholic Prison Ministry. Ms Smith came to know you after your detention at Dame Phyllis Frost Centre. Ms Smith noted that in your conversations you have shown remorse for your crime.
In addition to the above matters, Sister Mary Carrol, a prison chaplain, gave evidence before me. She said that you are ashamed and remorseful.
Without doubt, sentencing you is a difficult task. It is apparent from the most recent report of Dr Sullivan that in terms of rehabilitation there is still a considerable way to go. First, it is apparent that your significant depression, which I accept is related to the way in which you behaved at the time of the death of your victim, has not yet responded to treatment. Furthermore, as Dr Sullivan notes, there has been little progress in dealing with your alcohol dependence. It is to be hoped that intensive work in these regards and in relation to providing you with counselling is capable of being provided to you in a prison setting. Furthermore, these matters will require the attention of the authorities during any period of parole. Dr Sullivan has expressed the view that you are likely to be a person who can be provided with the services of the Office of the Intellectually Disabled. If this is so, it may well be that Statewide Forensic can provide considerable assistance to you during your parole period. Accordingly, it is clear that it is in your interests and indeed the community interests that the opportunity for you to engage in parole should be available for a period of time somewhat longer than might normally be the case. I must, however, also take into account other matters such as special deterrence and general deterrence. In terms of special deterrence, I accept that you are remorseful but it is clear that the key to your not re‑offending in the future is the management of your depression and, in particular, the deterrence of you from the abuse of alcohol.
General deterrence is a relevant factor to be considered. I accept the submission of Mr Montgomery that your intellectual disability is such that sensible moderation of the principle of general deterrence is required. The protection of the community from you is a relevant factor, particularly in circumstances where no satisfactory explanation for your violent behaviour can be found readily. Likewise, denunciation and just punishment are not matters of total irrelevance in your case.
Notwithstanding the significant mitigating factors which are established clearly in your case, the offence to which you have pleaded guilty is the most serious offence known to our law. Accordingly there is no alternative but to sentence you to a term of imprisonment. I sentence you to 14 years’ imprisonment. I direct that you not be eligible for parole until you have served 10 years’ imprisonment. Pursuant to s.18 of the Sentencing Act I declare that you have served 593 days in pre‑sentence detention and I direct that the same be noted in the records of the Court.
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