R v Fitchett - [2008] VSC 258

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No 1522 of 2006

THE QUEEN

DONNA FITCHETT

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JUDGE:	NETTLE JA
WHERE HELD:	Melbourne
DATES OF HEARING:	14-16, 19-22 May 2008
DATE OF SENTENCE:	18 July 2008
CASE MAY BE CITED AS:	R v Fitchett
MEDIUM NEUTRAL CITATION:	[2008] VSC 258

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CRIMINAL LAW – Sentence – Murder – Mother found guilty of the murder of her two sons – Whether mental state at time of offending such as to reduce moral culpability and need for general deterrence – Conflicting expert evidence – Whether current mental state such as to warrant a Hospital Security Order pursuant to s 93A of the Sentencing Act 1991 – Sentenced to a Hospital Security Order of 24 years with a non-parole period of 18 years – Sentencing Act 1991, s 93A – R v Verdins (2007) 16 VR 269 applied.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G J C Silbert SC with Ms C R Gwynn	Ms A Cannon, Solicitor for Public Prosecutions
For the Accused	Mr G J Thomas SC	Victoria Legal Aid

HIS HONOUR:

Donna Fitchett, you have been convicted of murdering your sons Thomas King Fitchett and Matthew David Fitchett and it falls to me to sentence you.

You were born on 1 January 1959 and at the time of the offences on 6 September 2005 you were 46 years of age. You were raised in Doveton and completed year 11 at a Roman Catholic secondary school before training as a nurse at St Vincent’s Hospital, East Melbourne between 1976 and 1978. Thereafter, you spent some 12 years in various nursing capacities before meeting your former husband, David Fitchett, in 1990.

You married him in 1993 and bore him two sons. The elder son, Thomas Fitchett, was born on 5 August 1994 and thus was eleven years’ old when you killed him. The younger son, Matthew Fitchett, was born on 3 December 1995 and so was not quite 10 years’ old when you killed him. Immediately before their deaths, both boys were healthy, happy, able and popular at school and with friends.

After the births of the boys, you continued to nurse for some time, but in 2002 you were retrenched from a newly established clinic in Canterbury where you were then working, and after that, you studied options trading and began to trade by internet from home with the aid of a $150,000 equity loan which you and David Fitchett took out against the security of the family home.

Although not diagnosed until years after the event, following the birth of each child you suffered post-natal depression and, more lately, from hashimoto’s thyroiditis and menopausal hormonal imbalances. Once diagnosed, your general practitioner prescribed a low-level anti-depressant and also thyroid and hormonal supplements. Consequently, up to the time of the killings, you did not exhibit any symptoms sufficient to warrant specialist psychiatric care. Over time, however, you continued to suffer from mood disturbance and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Fitchett

Details

AGLC: R v Fitchett [2008] VSC 258
Case: [2008] VSC 258
Decision Date: 18 July 2008

CaseChat Overview and Summary

The case before the court involved the sentencing of a woman, Fitchett, who had been found guilty of murdering her two sons. The court was tasked with determining the appropriate sentence for this heinous crime, taking into account the woman's mental state at the time of the offence and her current mental condition. The sentencing was conducted under the provisions of the Sentencing Act 1991.

The court had to decide whether Fitchett's mental state at the time of the offence should reduce her moral culpability and the need for general deterrence. Additionally, the court needed to consider whether her current mental state warranted a hospital security order under section 93A of the Sentencing Act 1991. The conflicting expert evidence on her mental health added complexity to the sentencing process.

In delivering the judgment, the court examined the expert evidence and concluded that Fitchett's mental state at the time of the offence did not significantly reduce her moral culpability. However, the court found that her current mental state warranted a hospital security order. The court sentenced Fitchett to a hospital security order of 24 years, with a non-parole period of 18 years, applying the principles set out in R v Verdins (2007) 16 VR 269. The court emphasised the need to balance the protection of society with the treatment needs of the offender.

Orders