R v D'Aloisio
[2006] VSC 216
•20 June 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1559 of 2005
| THE QUEEN |
| v |
| DOUGLAS D’ALOISIO |
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JUDGE: | EAMES, J.A. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 & 23 May 2006 | |
DATE OF SENTENCE: | 20 June 2006 | |
CASE MAY BE CITED AS: | The Queen v. D’Aloisio | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 216 | |
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Criminal law – Sentence – Manslaughter – Death of six week old son due to assaults by father – Mental illness – Father suffering obsessive compulsive disorder and obsessive compulsive personality disorder – Sentence 8 years’ imprisonment with non-parole period of 5 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K. Gilligan | Office of Public Prosecutions |
| For the Accused | Mr D. Allen S.C. with Ms. M. Tittensor | Galbally & O’Bryan |
HIS HONOUR:
Douglas D’Aloisio, you have pleaded guilty to manslaughter and I must now sentence you for that offence.
On 22 February 2005 your son Jackson Bailey D’Aloisio died at your hands. He was your second child, your wife having given birth to him on 11 January 2005. He was some six weeks old when his life ended. You had commenced to assault him when he was about three weeks old, causing him to suffer multiple fractures. On the last day of his life you repeatedly assaulted your son, as a result of which he suffered fatal head injuries.
You were originally charged with murder, but at an early stage offered to plead guilty to manslaughter, an offence which carries a maximum penalty of 20 years’ imprisonment. After initially refusing to accept that plea the Director of Public Prosecutions has now done so, accepting that when you committed this offence you were suffering from a serious psychiatric illness, that being the unanimous opinion of a psychiatrist and two psychologists, whose evidence was placed before the Court. The plea of guilty to manslaughter is made by you, and accepted by the prosecution, on the basis that your son’s death arose out of an unlawful and dangerous act or acts, but that when you assaulted your son you did not intend to kill him or to cause him really serious injury. During submissions on the plea the prosecutor has conceded that because you suffered serious mental illness at the time of your son’s death it would be inappropriate to apply the full weight of the principles of general or specific deterrence to your case.
Given these considerations, and applying well established sentencing principles, the sentence which I will impose will be substantially less than would have been imposed had you not been suffering mental illness at the time of the offence.
Your mental illness, however, is not the whole explanation for your conduct. By your plea, you admit that when you assaulted your son you knew the nature and quality of the acts you were performing, and that they were wrong. The expert evidence confirms that awareness on your part. As your counsel frankly acknowledged, the death of a defenceless child is among the most serious of the categories of the offence of manslaughter, and he accepted that a significant sentence of imprisonment was inevitable, notwithstanding your mental illness.
On the day of the child’s death you had been at work at Monbulk, where you commenced employment at 6.00 a.m., and returned home at approximately 2.40 p.m. After you arrived home your wife left to attend a scheduled six week post natal gynaecological appointment with her doctor. You remained at home to care for the two children, Jackson and his elder brother, who was born in 2002.
You told police that shortly after your wife had left to go to the doctor, and whilst you were having coffee, you heard your son “whinging”, in your words, and you went inside to check on him. Because “he was carrying on”, as you put it, you shook him and punched him to the chest. You then grabbed him around the neck, lifted him and shook him. His neck was completely unprotected. You then wrapped him and put him back in the cot. As you said to the police, “I wrapped him up, heard him whinging a bit, and I clouted him in the ear hole”. You said you did that quite hard, a couple of times, whereupon your son went quiet. He then started crying again and you punched him in the stomach or chest, two or three times. You then walked out the bedroom and shut the door. You lit up a cigarette and finished your coffee.
Upon returning inside the house to make another coffee, you heard your son crying, again. You gave him the dummy, which he spat out. You then punched him a couple of times in the chest. You picked him up, tried the dummy, and once more he spat it out. Then, in your words to police, “I clapped him in the head a couple of times”. You shook him again, this time holding him under the arms. You closed the door and left the bedroom.
A friend later arrived, unexpectedly, at your home. He brought some beers, which you were sharing with him. You went to check on the baby and, as you said to police, “I could hear him whinging and carrying on and I thought, fuckin’ not now, not now. I went in there, had a quick look, tucked him in, put his dummy in and he spat it out and I hit him on the forehead a couple of times.” You described hitting him with the heel of your hand two, three or four times, with more force applied after the first blow. He was lying in the cot. You told the police “and then I’m just going to have a little drink, I punched him a couple of times in the chest again and shut the door and went out.” You returned to your friend and continued drinking, displaying no signs, at all, of any loss of control nor, indeed, of any agitation.
When your wife returned home you went into the bedroom and discovered that your child was very ill. It is likely that the child was already dead or close to death. Attempts at resuscitation by yourself, and later by paramedics, failed.
Police attended the scene and your first statement, although not false as to anything stated, omitted any mention of the fact that you had struck the child. You advanced possible innocent explanations for his death. When police subsequently received a report of the pathologist as to the child’s injuries, which excluded any innocent explanation for the death, police arrested you and then conducted an interview on 8 March 2005. In that interview, which was videotaped, you made a full and complete confession of the events which occurred on the day of your son’s death. Furthermore, you told the police that you first commenced striking Jackson when he was about three or three-and-a-half weeks old. You said that thereafter you had assaulted him two or three times a week, until his death intervened on Tuesday 22 February 2005.
You said you would sometimes assault your son when your wife was asleep, because you wanted her to have a rest. You said that you would go to the child, put his dummy in, and if that did not quieten him you would then punch him in the chest or, as you described it, give him a “moon slap” to the forehead, i.e., a blow with the heel of your hand.
You described assaults occurring over the last four days of your son’s life. On the preceding Saturday your wife asked you to check the child when he was crying. You told police he was whinging a bit, “I thought, I can’t even have lunch in peace. She can’t even sit down and relax.” You told police that when he spat out the dummy you punched him in the chest, and gave him a couple of “moon slaps”, one to the front and one to the side of his head.
On the Sunday, Jackson was again crying. You wanted your wife to have a rest; you said that she was exhausted because your eldest son had developed a habit of waking up in the early hours of the night, and was teething. When Jackson started to cry, you went to him and gave him his dummy, but he did not settle. Then, as you said to police, “I don’t know why I did it. I punched him in the chest again.” You then picked him up and shook him, holding him around the neck. You then slapped him to the back of the head.
On the Monday, the day before his death, your wife took Jackson to her family doctor, because she had observed that he had bloodshot eyes. Before she took him to the doctor that day you had punched your son a couple of times in the chest. Later, after your wife returned from the doctor’s, you punched him again, because your wife was asleep and you wanted her to rest. When he spat out the dummy, that time, you thought, as you told police, “for shit’s sake, I picked him up, put it in again, and he just didn’t want it and I clapped him a couple of times on the side of the head”. That Monday evening you again went to him when he was crying and he again spat out the dummy, so then, as you told police, “I just got a bit mad and I lost control as you would call it, and hit him in the head a couple of times”. You hit him to the side of the head two or three times.
When the doctor examined Jackson on the Monday morning there were no external signs of injury, apart from the bloodshot eyes. Your son had symptoms consistent with a cold, and the doctor concluded that the bloodshot eyes might have been the result of sneezing.
A pathologist, Dr Linda Iles, conducted a post-mortem examination which disclosed that your son died as a result of head injuries, including a bilateral acute subdural haematoma and an earlier subacute subdural haematoma. She concluded that the child had suffered significant trauma to the head on more than one occasion. The subacute subdural haematoma had occurred prior to the day of death. The child had also suffered multiple fractures of the ribs, which injuries were of differing ages. Some of the rib fractures had already started to heal at the time of his death. Dr Iles concluded that the injuries resulted from more than one episode of trauma, delivered over a significant period of time, which could either be the result of blunt trauma or squeezing of the chest. The child had evidence of acute lung injury and early viral pneumonia, that being a consequence of the rib fractures. The lung injury might itself had been fatal, but for the supervening head injuries which finally caused his death. The child’s liver was also damaged as a result of blunt force trauma. The spleen was also damaged. There was also a fracture to the left femur.
Whether all or some of Jackson’s injuries were caused by shaking, rather than by virtue of direct blows, could not be precisely determined.
In the videotaped record of interview you demonstrated with your hands the force used by you against the child. In that demonstration you distinguished between instances when you punched the child with a fist and instances where you hit the child with the heel of your hand. The video demonstration confirmed your own assessment that the blows struck by you were quite hard.
You told police that you did not want your son to die or to be injured and that it didn’t really cross your mind that you might injure him by what you were doing. You said that you did not tell anyone else about the assaults on your son because, “it was my nightmare.”
You are not to be sentenced for the assaults on your son that occurred before 22 February. Nonetheless, the fact that they occurred, and are admitted by you, has relevance in a number of ways. Those events provide context to the events of the day of death and they demonstrate that the events of that day can not be regarded as having been an isolated aberration. Your counsel accepted that the fact that there were previous assaults is relevant to assessing your moral culpability for the offence with which you are charged, but he submitted that when regard was had to your mental health problems then your overall moral culpability is reduced. He submitted that your mental condition also explains why you failed to seek professional help over those weeks.
Upon being placed in custody, on remand, a psychiatric assessment was made that you suffered chronic obsessive compulsive disorder. That diagnosis was subsequently confirmed by evidence tendered on your behalf from Dr Lester Walton, a consultant psychiatrist, from Mr Ian Joblin, a forensic psychologist, and from Professor Michael Kyrios, a clinical psychologist, all of whom had examined you whilst you were in custody. Obsessive compulsive disorder (“OCD”) is a diagnosis made when there is evidence of recurrent obsessions or compulsions which are unwanted and intrusive to the sufferer and are sufficiently severe to cause marked distress or discomfort.
In explaining the origins of your mental illness, each of the experts reported on your history, and highlighted your difficult upbringing as recounted by you. You reported that your mother was aggressive and abusive towards you, and showed you no affection. When you were seven years of age she left you at school and, without warning, did not return for you, having chosen to end the relationship with your father. You have had little contact with her since. At school you were bullied, and your education ceased in the course of Year 9. Despite your difficult upbringing you had led a blameless life prior to this offence. You married in 1997, having known your wife since you were both teenagers. Thereafter, you led an industrious life as a committed husband, and father to your first child.
You were employed for 13 years with the same supermarket company and after a short break, where you unsuccessfully attempted to pursue what you thought would be a less stressful career as a gardener, you returned to the firm. You had been an exemplary worker, whom your employer had on many occasions sought to promote. Your mental condition made you unwilling to take a management position and it caused you great stress to be given one. On the day before this offence, you commenced work with your employer at a store in Monbulk where you had reluctantly taken up a management position. Your mental condition meant that you feared failing in your managerial position and that anxiety, coupled with anxiety as to what you perceived to be a deteriorating relationship with your wife, and your own obsession with the need to maintain cleanliness in the house, caused you a lack of sleep, severe headaches and apparent depression. You were smoking heavily and drinking up to 15 cups of coffee a day. As Mr Joblin stated in his report, and the other experts generally agreed, these factors combined to produce a very fragile psychological state, in which you were not well equipped to deal with any emotional issues. One such issue was your crying child.
Professor Kyrios said that one-third of OCD sufferers develop major depression, whilst over half exhibit significant depressive symptoms. His opinion was that impulsive acts are more likely to occur when the person is suffering a depressive episode. He said that indecisiveness or poor decision-making are typically associated with OCD sufferers. Professor Kyrios diagnosed you as suffering not only obsessive compulsive disorder, itself a psychiatric illness, but that you also suffered, to a severe degree, the condition of major depression, which is another psychiatric illness. In addition, he diagnosed you as suffering social anxiety disorder and obsessive compulsive personality disorder (“OCPD”).
Professor Kyrios said that the major depression which he diagnosed was of at least two weeks’ duration, as at the death of your son. It may then have been of some two to three months’ duration. He concluded that the severity of the OCD suffered by you was itself in the extreme category. As to obsessive compulsive personality disorder, he said that is a distinct condition and constitutes a personality disorder, not a psychiatric illness. Professor Kyrios was of the opinion that that disorder exacerbated both the OCD and the major depression. He said that the OCPD was also extreme, and that the combination of these conditions affected your decision-making processes and your ability to deal effectively with stress. He concluded that your various conditions meant that you focussed, always, on the need for control of situations, and he opined that in the case of a crying baby your concern was with how you would control the situation. He said of you that you “won’t be able to make reasonable logical decisions”. He said that in such a situation you “won’t be able to perspective-take so that what he does, as far as he is concerned, is a way of controlling the situation. However the rest of us can perspective-take and say, ‘no, that’s a totally unreasonable thing to do’, and it’s only after the event that Mr D’Aloisio has been able to work things through and see that what he did, and (that) how he responded, was totally inappropriate”. Professor Kyrios said that you would not have been conscious of this process of reasoning. He concluded that there were a whole range of circumstances, both personal and environmental, that denied you insight at the time of the assaults on the child. He concluded:
“This is a gentleman who has had a long history of abuse, a long history of lacking insight into his behaviour and I just don’t feel that at the time he had the personal capacity – or, at least, his personal capacity for thinking more broadly was very, very limited and his personal capacity for making reasoned decisions at the time was very limited.”
There is no evidence that your first child was mistreated by you in any way, and I received evidence from many witnesses who attested to what they considered to be your non-violent nature. Professor Kyrios said that the assaults on Jackson were a culmination of issues concerning both work and your family situation, which produced a different set of circumstances and stressors to those which existed after the birth of the first child. In particular, these events occurred at a time when depression had intruded on top of the other obsessive compulsive conditions.
Professor Kyrios concluded:
“Mr D’Aloisio’s highly developed need for control, particularly with respect to control of emotional expression, led to chronic internalising of negative emotions. In the context of mounting stress, this situation is tantamount to a balloon ready to burst. There is a clear link between Mr D’Aloisio’s personality make up and subsequent mood problems (e.g. depression, agitation, anger). There is also a clear link between his mental health problems and poor decision making, low coping capacity, and intolerance for situations he could not control. It is my opinion that Mr D’Aloisio’s obsessional personality and mental health problems were at the centre of his response to his temperamentally demanding baby. At the time he was so concerned about control that he would not perspective-take or see the consequences of his behaviour.”
As he made clear in his evidence, the diagnosis of major depression which he made was significant in Professor Kyrios’ assessment of the extent to which your overall mental condition would have denied you impulse control, in particular control over aggressive impulses. Professor Kyrios noted that in the months preceding Jackson’s death you had shown uncharacteristic disinterest in activities which you previously enjoyed, which suggested that depression had existed since about December 2004.
As Professor Kyrios acknowledged, however, Dr Walton did not make a diagnosis of major depression. Whilst, Dr Walton said that he did “not necessarily” disagree with that diagnosis, he said that upon his own examination he could not say that you were suffering major depressive disorder at the time of the offending.
Dr Walton was of the opinion that a diagnosis of major depression fell within the field of expertise of a psychiatrist rather than a psychologist, although he accepted that psychologists, depending on their skill and experience, could make an accurate diagnosis, from time to time. He concluded that if there were to be a diagnostic conflict, then the view of the medical practitioner should, generally, be preferred over that of a psychologist, although he said that that was not a clear cut proposition.
In the first of his two reports which were tendered, forensic psychologist, Mr Ian Joblin, concluded that, in his words, you “seemed to have had symptoms of an obsessive-compulsive disorder”. He considered that the offence occurred as a result of what he called significant psychological overload. In his second report, which followed and referred to that of Professor Kyrios, he noted that in addition to OCD Professor Kyrios had diagnosed additional conditions, including major depression and social anxiety disorder. Mr Joblin, who did not give evidence, did not, however, expressly state that he too made those diagnoses. Having merely noted Professor Kyrios’ diagnoses and the reasons he gave for them, Mr Joblin concluded: “It seems, therefore, that Professor Kyrios, Dr Walton and I have all formed a common opinion about Mr D’Aloisio’s obsessive compulsive disorder”. He added, “One then needs to discuss the link between that disorder and the offence for which Mr D’Aliosio is before this Court”.
Mr Joblin concluded that you had been in an extremely fragile psychological state. He said you had become depressed as a result of lack of sleep, and had concerns about your relationship with your wife, concerns about responsibilities being thrust on you in your job, and concerns about what you saw to be difficulties with your in-laws. It is unnecessary to detail those concerns, save to note that, as reported by Mr Joblin, they included apparent feelings of annoyance about your wife not assisting with housework and that, as you saw it, you had little time for yourself. Mr Joblin concluded that “at the time of this incident, because of the symptoms of the diagnoses which were impacting on his psychological state, rational and appropriate judgment was limited and thus the spontaneous and impulsive act which this offence represents”. Although he referred to “diagnoses” in the plural, when speaking of your symptoms (and I also note that he seemed to imply that the offence involved a single impulsive act), it seems clear that Mr Joblin did not himself purport to diagnose major depression.
Professor Kyrios is undoubtedly highly qualified in the field of obsessive compulsive disorder and related disorders, and the two other experts deferred to him in that regard. He is Professor of Psychology in the Faculty of Life and Social Sciences at Swinburne University of Technology. He is an inaugural member of the Obsessive Compulsive Cognitions Working Group, which he describes in his curriculum vitae (which runs to some 25 pages) as being the body which “comprises the world’s foremost OCD researchers”. He was until recently the only Australian member of that working group. He was formerly Associate Professor in Clinical Psychology at the Department of Psychology at the University of Melbourne and he continues to practice as a consultant clinical psychologist. He told me that obsessive compulsive disorder and related disorders were his major research interest and that he had conducted research into OCD since 1993 and had taught at a number of places throughout the world. He told me that he personally, and his research team, had developed the world’s best practice in the treatment for obsessive compulsive disorder.
Professor Kyrios was firmly of the view that he was qualified to make the diagnosis that you were suffering major depression, notwithstanding that it was a diagnosis of a psychiatric illness, and that he had no medical qualifications. Differing opinions have been expressed by judges as to the appropriateness of a psychologist diagnosing psychiatric illness: see R v Kucma[1]. The prosecutor did not contend that Professor Kyrios was not qualified to diagnose OCD but he submitted that where there was disagreement between the views of a psychiatrist and a psychologist in the diagnosis of psychiatric illness then the views of the former should prevail.
[1]See R v Kucma [2005] 11 VR 472, at 482 [26], per Batt, J.A., c.f. 488 [57] and fn.45, per Eames, J.A.
It is not necessary for me to reach any concluded view on this question. I will assume, without deciding the question, that Professor Kyrios was qualified to make the diagnosis of major depression. Nonetheless, whilst I accept that you had symptoms of depression both before and at the time of these offences I am not persuaded as to the accuracy of the diagnosis of major depression, given Dr Walton’s failure to make the same diagnosis. Professor Kyrios had vastly less experience in a forensic context than Dr Walton, or, for that matter, Mr Joblin. Unlike the hundreds of court appearances made by Dr Walton, Professor Kyrios had given evidence on few occasions: only once before in the Magistrates’ Court, once in the County Court and also (apparently more than once) to the Medical Registration Board. Forensic experience is important, in my view, where an assessment of depression is being made in the context of interviews conducted in prison, where the interviewee is facing a severe sentence of imprisonment. As Dr Walton noted, when you were examined in prison “there was a large component of his anxiety reactive to his then predicament”. As I have noted, Dr Walton said that he did “not necessarily” disagree with the diagnosis of major depression, but he said that he was not himself satisfied that you were suffering such a major depressive condition at the time of the offence.
My hesitation in fully accepting Professor Kyrios’ evidence is not confined to his diagnosis of major depression. I also have reservations about giving unqualified acceptance to his opinions as to the severity of your psychiatric and psychological conditions, and their influence on your offending.
Professor Kyrios reported that you experienced extremes of shame, guilt, remorse and grief, and in response to questions when he gave evidence, he accepted that you were aware of the nature and quality of your behaviour and knew that your conduct was wrong. Notwithstanding those acknowledgments, there was a degree of myopia, in my view, in the extent to which he attributed your conduct almost entirely to mental illness and in his limited allowance, especially in his written report, for the acknowledgment of moral blame which is contained in your plea of guilty to this offence.
Thus, he seemed to imply that you had little if any insight into your conduct at the time when it occurred. In his written report, having concluded that your “response to a demanding baby” was out of character, he observed that, “Mr D’Aloisio requires help in coming to terms with the fact that he lost his capacity to deal effectively with his emotions. He already has some insight into the consequences of his personality and coping styles.” He expanded on that in his evidence and said that it was only after the death that you had been able to see that what you did and how you responded was, in his words, “totally inappropriate”. Professor Kyrios referred to the importance of the diagnosis of major depression in concluding that you lacked insight at the time of the offence.
In my opinion, the fact that you admitted to having assaulted your son on many previous occasions seems to me to have been given very little weight in assessing the extent of your awareness, throughout those weeks, of the wrongness and dangerousness of your conduct, and of the need for you to seek help.
I observe, too, that some of the opinions stated by Professor Kyrios seemed to me to be expressed rather casually and incautiously. For example, in his report Professor Kyrios said this:
“It is highly likely that Mr D’Aloisio’s fear that he would be rejected and abandoned by his father, just as he had by his mother, at least partly motivated his need to be perfect, to maintain perfect cleanliness and order in his surroundings, and to prevent harm from happening to others. In addition his early experiences of bullying and rejection are likely to have led to mistrust of others and an overdeveloped sense of self-reliance, which culminated in an exaggerated sense of personal responsibility. In our own research, such developmental factors have been shown consistently to be associated with psycho pathology, particularly OCD, OCPD, anxiety and depression.” (My emphasis)
I queried with Professor Kyrios his opinion that your mental condition would have motivated you “to prevent harm from happening to others.” In the circumstances of this case, in particular when regard is had to the fact that assaults took place over several weeks, such an opinion seemed to me to be untenable. In response, Professor Kyrios, conceded, at once, that a need to prevent harm from happening to others may not have been a factor which applied in this particular case. Having made that concession he focussed, instead, on the need for the maintenance of order and perfection, which he said remained relevant.
In a further paragraph of his report, Professor Kyrios said this:
“Mr D’Aloisio’s developmental trauma, psychological disorders and personality difficulties, including his maladaptive need for control and order, high level of agitation, and the life stressors he was experiencing all contributed significantly to poor decision making and resulted in an exaggerated and inappropriate response to a temperamentally demanding baby.”
In my view, it was quite inappropriate to describe Jackson as a temperamentally demanding baby. At worst, his demanding behaviour occurred over only six weeks, and it may well have been that much of his crying was in response to his earlier injuries. Professor Kyrios accepted the force of that observation, but said that he was describing the situation as it may have been seen from your perspective. A further comment may be made about the passage last cited from the report of Professor Kyrios. It seems to me to diminish the nature of the crime that was committed to describe your conduct as “an exaggerated and inappropriate response”.
Professor Kyrios acknowledged that this was the first recorded instance, anywhere in the world, where the conditions of OCD or OCPD had been linked to a killing by a person suffering either condition. Indeed, he said that the fact that this case was “unique” was the reason he “took it on”. Professor Kyrios said that OCD is the fourth most common psychiatric disorder, and the tenth leading cause of disability, in the world. The fact that notwithstanding its incidence there had been not one other instance anywhere in the world where a homicide had been attributed to OCD and/or OCPD ought to have dictated caution about whether this was the first such case, but having “taken it on”, I do not consider that Professor Kyrios displayed sufficient caution when assessing the extent to which Jackson’s death should be attributed to the mental conditions which he diagnosed. That is not to say that your mental illness was not a significant factor in this offence: I accept that it was. The difficulty is in determining just how significant a factor it was in your offending.
Although Dr Walton did not make the diagnosis of major depression, he said that the condition of OCD would be routinely distressing and depressing and it would be unheard of for someone with that condition not to experience depression, at least sometimes. He accepted that your mental state was a relevant contributor to your conduct but said it was not the entire explanation for it. Nonetheless, he considered that your ability to calmly and rationally think things through was compromised by virtue of your psychiatric condition, and that your failure to seek help was not inconsistent with the condition, because you would not recognise or have insight into your conduct. Whilst I accept that your mental conditions provide part of the explanation for your failure to seek help, the fact remains that your conduct continued over weeks, and when asked by police for your explanation for failing to discuss the assaults with anyone, you explained that you did not do so as it was, in effect, your private nightmare. It is clear that you were not bereft of all insight into your conduct.
In the end, it is unnecessary for me to determine the precise components of your mental illness and the relationship of one factor to another: see R v Sebalj[2]. Dr Walton said there was unanimity between himself, Professor Kyrios and Mr Joblin that you suffered a psychiatric illness of obsessive compulsive disorder. Whilst he was not prepared to accept Professor Kyrios’ description of the condition as “extreme”, he agreed that it was “severe”. I will accept, too - as it seems did the other expert witnesses - that you suffered to a significant degree each of the conditions that Professor Kyrios diagnosed, save for major depression.
[2]See R v Sebalj [2006] VSCA 106, at [21].
Thus, all the expert witnesses agreed that your ability to respond appropriately to the aggravation of your child’s crying was compromised by your mental condition.
It is accepted by the prosecutor that your conditions constituted serious psychiatric illness, not amounting to insanity, and thus reduced the degree of your moral culpability, and brought into play, in your favour, the mitigating factors discussed by the Court of Appeal in R v Tsiaras[3]. In particular, the prosecutor conceded that, in your case, the requirement that the sentence give weight to general and specific deterrence had to be moderated. Your psychiatric illness also reduces your moral culpability, and the factor of denunciation of your conduct must be given less weight than would otherwise be the case.
[3][1996] 1 V.R. 398, at 400.
Your psychiatric illness will mean that prison is a greater burden for you than it would be for a person without a similar condition. Professor Kyrios concluded that you required intensive treatment for obsessive compulsive disorder, which would take some two to three years and would include medication by way of high doses of anti-depressants and psychological treatment. As Dr Walton pointed out, however, your opportunity to receive treatment for your conditions will be very limited in prison, save for taking prescribed medication. Professor Kyrios considered that if you received the intensive treatment which he proposed then that fact, when coupled with your motivation, family support and present insight, would ensure that your overall prospects of rehabilitation were very good. Whilst it is unfortunate that you will probably not receive comprehensive treatment, I accept that your prospects of rehabilitation are good, in any event.
In addition to the matters to which I have already referred, Mr Allen, in his comprehensive and helpful plea, identified a number of other mitigating factors in your case, among which were the following:
·First, you have a history of gainful employment, having remained with the one employer for 13 years then, after a short break when you attempted to conduct a gardening business, resuming employment with your old firm. Your work and character were held in high regard by your employer and fellow workers.
·Secondly, the fact that so many and so diverse a range of character witnesses attended court and attested to their astonishment that you committed this offence. Their unanimity as to their experience of you being a person of gentle, non violent, disposition is not only evidence of past good character on which you can draw, but also adds weight to the contention that your mental illness was a significant factor in your offending.
·Thirdly, you are 31 years of age and have no prior convictions and have otherwise been of unblemished character.
·Fourthly, your early statement of your willingness to plead guilty to manslaughter, and the entry of that plea.
·Fifthly, the difficult circumstances in which you were remanded after being charged. You instructed your solicitors not to apply for bail and you spent 15 days in the Custody Centre where you were placed on suicide watch, being confined to your cell for 23 hours per day. You then spent 9 days in a shared cell before being transferred to Melbourne Assessment Prison where you were placed in a protection unit. It was there that your OCD condition was diagnosed.
· Sixthly, your favourable prospects of rehabilitation as attested to, among other factors, by the evidence from your character witnesses, your enthusiastic involvement in prison rehabilitation programs, your family and community support, and your willingness to undergo treatment. I accept the assessment of Dr Walton that there is only a remote chance of you re-offending. I note, too, that Mr Joblin said he was strongly of the opinion that this offence does not represent any ongoing aggressive or psychopathic disposition.
·Seventhly, the fact that imprisonment will be harder for you than for prisoners without your psychiatric illness and psychological disorders. As Dr Walton said, you are an anxiety-prone person, and that will be exacerbated by the prison environment. Additionally, you will serve your sentence in protection.
·Eighthly, your remorse, which I accept to be profound. There are many indicators of remorse, not only by your plea of guilty but also by the frankness of your record of interview with police. All of the expert witnesses, and also your character witnesses, attested to your remorse. As many witnesses said, you suffer the daily punishment of the realisation that you have taken the life of your own child.
Among the material I have considered, I have read the sad and eloquent victim impact statement provided by your wife. Both your wife and your surviving son are suffering a sentence, too, as a result of these terrible events. In common with all of your friends, workmates and family members who have offered character evidence on your behalf, you wife registers disbelief that a person she has known and loved since her teenage years, and knew to be a person who never displayed anger or violence, could have committed this offence. Your wife’s situation is a particularly tragic one. She stands by you and offers support, firm in her belief that your actions could only be the product of mental illness. That support will be important to your rehabilitation.
Whilst I have had regard generally to the impact of imprisonment on your wife and surviving child, such hardship is, regrettably, not unusual when an offender is imprisoned. The hardship to your family in this case is not of such an exceptional character as to constitute a mitigating factor for sentencing: see R v Holland[4].
[4][2002] VSCA 118.
Mr Allen submitted that yours was an appropriate case not only for a lower than usual head sentence but also for setting a lower than usual non-parole term. He submitted, in particular, that your prospects of rehabilitation were exceptional, that your remorse is profound, that you have the continuing support of your wife and family, and that the offending occurred in circumstances of mental illness. The non-parole period I will fix is, indeed, lower than usual.
As discussed above, there are many powerful factors which operate to mitigate sentence in your case, but against those factors there is the tragic loss, at your hands, of the life of a young child, who was in your care. You do not claim, and there is no evidence to support any such claim, that your mental illness rendered you incapable of controlling your actions, and unable to appreciate that they were wrong. Notwithstanding the heartfelt pleas of your wife and family, a significant sentence of further imprisonment must be imposed if the law is to truly acknowledge the tragedy of Jackson’s death. Although the need for general deterrence must be moderated in your case, that factor is not eliminated entirely.
I sentence you to eight years’ imprisonment. I order you to serve five years’ imprisonment before being eligible for parole.
I declare that you have served 470 days’ imprisonment by way of pre-sentence detention, and I direct that that declaration be entered in the records of the court.
I make an order that pursuant to s.464ZF(2) of the Crimes Act, you undergo a forensic procedure for the taking of an intimate forensic sample by way of saliva. That order is made by virtue of the seriousness of the offence, and as being justified in the public interest. It is also made on the basis that you consent to the order. I am required by law to inform you that should you withdraw your consent a member of the police force may use reasonable force to enable the forensic procedure to be conducted.