R v Klinkermann
[2013] VSC 65
•25 February 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT BALLARAT
CRIMINAL DIVISION
No. 0150 of 2012
| THE QUEEN |
| v |
| HEINZ KARL KLINKERMANN |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 February 2013 | |
DATE OF SENTENCE: | 25 February 2013 | |
CASE MAY BE CITED AS: | R v Klinkermann | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 65 | |
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Plea - Charge attempted murder – tragic circumstances - victim 84 years old wife – dementia, Parkinson’s, difficulty swallowing, unresponsive - aged couple – loving carer refused to be separated - 24/7 carer – tablets and carbon monoxide – lay on bed together - found by visiting nurse - wife survived – full time palliative care nursing home.
Intervention Order in place to prevent contact.
Sentence: Community Corrections Order 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford S.C. | Office of Public Prosecutions |
| For the Accused | Mr T Marsh | Victoria Legal Aid |
HER HONOUR:
Heinz Karl Klinkermann, you have pleaded guilty to one charge of attempted murder of Beryl Klinkermann, your wife. That offence occurring at Yandoit between 1 and 2 August 2012. You are aged 73, having been born on 6 April 1939. Your wife Beryl Klinkermann was 84 at the time of the offending, having been born on 12 February 1928; she is now 85 years of age. Both you and Beryl Klinkermann had been married previously. You had three children from your first marriage. Beryl Klinkermann had six children from her first marriage. She had lived mainly in West Australia.
You and your wife Beryl met in May of 2003 and married in November of that same year. You had two heart attacks in 2003 – one in March prior to meeting your wife Beryl and another in June of that same year, not long after you met her. She nursed you through your bad health. You had a total of four stents fitted in 2003 and in 2008 you had a mild stroke. Your wife was diagnosed with dementia and Parkinson’s disease in approximately 2005/6. Prior to that, and even for a time after that, you and she had travelled on holidays both overseas and around Australia enjoying a good relationship.
By April 2012, Beryl’s medical situation had significantly deteriorated and she was unable to swallow food or liquid in her mouth easily or chew solid food items. You insisted that your wife receive a PEG (or a percutaneous endoscopic gastrostomy) through the abdominal wall into her stomach to ensure that she was able to be fed externally, alleviating what you saw was the problem, being that of her becoming thin. Mrs Klinkermann’s long term doctor was of the view that it was normal for a person suffering from her condition to in fact become slimmer due to the inability to consume as much in the way of food. You, however, were determined that there would be no circumstance under which she would in your view of it, starve to death.
You were informed on numerous occasions that it would be appropriate for your wife, Beryl, to be placed in nursing home care. You refused to contemplate any such option. You had the assistance of a carer twice a week for some hours. You had turned your home into a mini-hospital in an attempt to care for Beryl. You attempted to care for her seven-days-a-week 24-hours-a-day with the exception of some few hours absence to buy supplies and return with them to your home. This was in many ways a recipe for disaster.
What occurred between 1 August and 2 August was that on 1 August two nurses attended and, although a special shower and bath with hoist had been set up for the purposes of showering Beryl Klinkermann, her condition was such that the nurses were unable to use it and gave her a sponge bath instead, in the bed where she was residing. She was totally and absolutely unresponsive according to the attending nurses and you, yourself, were very quiet which was also an unusual situation.
The nurses left your premises around 5pm and then you put in place arrangements to kill both yourself and your wife from carbon monoxide poisoning. You started up your Ford station wagon, you reversed it to the loungeroom window, taped a plastic pipe around the exhaust and placed that into the loungeroom, through the window. You then closed the rest of the windows and doors to this room. This was the room in which Beryl Klinkermann had her nursing bed set up. You gave your wife a sleeping tablet and you swallowed a number of them. You climbed onto the bed next to your wife and you held her hand as you both slipped into unconsciousness.
Your intention, at that time, was that both of you would fall asleep together and neither of you would wake, that is that both of you would be killed. However, unbeknown to you the end of the pipe, the hose that you had attached to the car exhaust, had melted due to it being plastic and, as a result, it had fallen away from the exhaust and the room failed to fill with carbon monoxide fumes. The next morning at about 8am a district nurse, Carolyn Evans, located both you and your wife Beryl in an unconscious state in your loungeroom in the position as described. You were not moving and the room was closed and locked. Ms Evans contacted the 000 number and a local Country Fire Authority member arrived who forced entry into the premises, followed by the ambulance and then the police. Both you and Beryl Klinkermann were revived with oxygen and transported to the Ballarat Base Hospital.
On a search of the premises police located the plastic pipe which had melted, empty blister packets of Temazepam capsules (a form of sleeping pill), a handwritten three page note written in German and English, with a particular English passage saying ‘What’s the point in going on’, an Apple Mac computer containing emails in 2001 from Exit International to which was attached ‘Don and Iris’ Euthanasia Farewell Message released on YouTube’.
Your wife Beryl Klinkermann made a full physical recovery, in that she is alive. She is still totally unable to communicate but is conscious and has been transferred to full-time palliative care. She had been diagnosed as requiring full-time palliative care prior to your attempt to kill her. You were also placed in the Ballarat Hospital overnight and were then made an involuntary psychiatric patient, transferred to the Queen Elizabeth Centre Steele Haughton Aged Care Secure Ward and on 29 August 2012 your status in relation to being an involuntary psychiatric patient was changed to that of being a voluntary psychiatric patient.
Your wife remains in a non-communicative state in palliative care, her life in all probability extended for a further period of time. Apart from being charged with this offence, there is also now an intervention order in place which prevents you from seeing Beryl Klinkermann, your wife, at any point, either supervised or unsupervised, which, your counsel assures me, is in some ways the worst punishment that could be made.
That you are a man of good character is not in doubt. You are 73 and you have never been in trouble with the law until this time. Your record of interview with the police makes it clear that you were concerned with your wife’s care, your wife’s health and that your intention was that you and she would die together and take her away from the situation in which she was lying in her bed deteriorating on a daily basis. Our law does not permit people to behave in that manner towards other human beings. It is permissible of course to end the life of a suffering animal but in terms of a human being that remains an exceedingly contentious issue in our community and as a result you have been charged with the offence of attempted murder of the wife that you loved and adored.
There are reports that have been tended to this court from people who have known you and your wife over quite a lengthy period. I will refer to just some of the comments contained in them.
From Christopher Soper, personal carer who assisted you from June 2012 onwards, two or three times a week. He said:
I observed that Mr Heinz Klinkermann was a very loving and caring man towards his wife Beryl and had devoted his life to her care which had become a 24-hour, 7-days-per-week responsibility for him.
My last contact with the Klinkermann’s was prior to the incident before the court while I am unable to comment on the incident, Mr Klinkermann was under immense stress with very little respite from the care of his wife. He rarely left her side and depended on the telephone and internet to keep in touch with the outside world.
From Leonie Sudiro, a step-daughter from your previous marriage:
I have witnessed the situation Heinz was faced with in caring for his wife Beryl, and wondered how he managed. It was a huge amount of responsibility and pressure and he took the task very seriously. He cared for her 24 hours a day, 375 days a year with barely a moment to himself or any time to unwind. No one not even the most experienced nurse or doctor is expected to work 7 days a week without a break and yet this is what Heinz was facing. He had three hours a week free time – not even a whole day.
However, in spite of all of that, he never once complained but only spoke about his concern for Beryl and finding ways of helping her and looking after her to the best of his ability. He always tried to get the best medical care for her and even when doctors had given up challenged them and insisted that they treat her.
When Beryl was still able to communicate, Heinz had made a promise to her that he would never put her in a nursing home. He took this promise very seriously and would never renege on it, even though he was personally facing difficulties in keeping his promise. Obviously caring for someone full time without a break and living in isolation took its toll on Heinz and he became depressed when Beryl’s condition began to deteriorate.
Alan John Searle, a friend of the family stated:
I watched Heinz, in more recent times, care for Beryl, in what one would consider difficult circumstances. He was totally devoted to Beryl and encouraged her to eat and recover from her diagnosis that was more than negative. However, Beryl, in more recent times deteriorated even further, and I personally can understand the reasoning behind Heinz’ unfortunate decision.
From Vern Bechaz, someone who has known you since 1968:
On our last visit he had set Beryl up in the loungeroom which had everything on hand to look after her. We both felt then that this fine man had completely devoted himself to looking after the love of his life as there was no way did he want to put her into a home somewhere. In the 44 years I’ve known Heinz Klinkermann I can honestly say that I have never met a more honest, trustworthy and honourable man and I can say with no regret that it has been my greatest pleasure to have met and still know him.
From James Thomas, who has known you since 1971 wrote:
A couple of years later we were present at the marriage of Heinz and Beryl, and later when Beryl’s health started failing, Heinz became her devoted carer, a task that he carried out with devotion in the hope that Beryl’s health would improve. If I was asked the question what kind of a man is Heinz Klinkermann my answer would be that he is a kind, caring man… a gentle man.
In terms of your own health, currently you have a number of medications that you take for gout, blood pressure, cholesterol, stroke reducing medication, antidepressant, heartburn, pain, nasal problems and sleeping tablets, and of course medication related to ensuring there are no repeats of your heart attacks or stroke. You could not be described as being in robust good health in light of your history, but it has been just under 10 years since your last heart attack and four years since your last stroke.
Part of the material tendered on your behalf included medical notes taken from around the time of this offending which showed the perceptual state that you were in at that time, which indicated that you were not psychotic, delusional or had suicidal ideation, but that your judgment was impaired and you were lacking insight.
Your personal circumstances are matters that have to be taken into account and I have referred to a number of those, being that you are 73 with no prior convictions, a man who dearly loved his wife, a man who tried to kill himself to die at the same time as your wife, so you did not have to endure life without her.
As I indicated, you had three children from your first marriage; a fifty year old daughter and forty-nine year old son. You had another daughter who was killed in a motor car collision at the age of 16. Sadly, your son has not spoken to you and your remaining daughter has not spoken to her mother since that time.
You were born in Germany, your father was killed in the Second World War in 1944 when you were aged 5. You returned with your mother and siblings to live with her parents after your father’s death. Your mother died as a result of a motor car accident in Germany in 1989. You have three siblings all of whom are aware of the offending to which you have pleaded guilty. You have a brother and a sister still residing in Germany, as well as a brother Horst who came to Australia a year after you did. You completed your schooling - which had been disrupted because of the war - in 1954, then finished a three year pastry cook apprenticeship. You married your first wife Edeltraud, who worked in the same pastry shop as you in Germany when you were 21 years of age and at the age of 22 you both migrated and arrived in Melbourne in 1961. You worked initially as a pastry cook and then for Golden Poultry for some six years and then 22 years at the BHP Crib Point Refinery.
You and your first wife separated around 1982, shortly after the death of your daughter Angelique in a car accident. You met your second wife Isla in late 1982 and you were married until 1988 but had no children together. You then had a relationship with Ms Iris Bradley from 1988 through to 2003 but you never married. You did not have children with Ms Bradley but you were in a step-father position to her children. After your breakup from Ms Bradley you met your current wife Beryl Klinkermann. She was 11 years older than you at the time and she had recently moved to Bendigo.
As I indicated you worked at the Crib Point Refinery for 22 years until being retrenched. You then travelled with Iris Bradley and after your return to Melbourne worked as an owner driver of a truck between 1992 and 1997. You are now on an old aged pension and have been since 2001.
Finally, I have a report from Mr Jeffrey Cummins dated 20 November 2012. You acknowledged to Mr Cummins that prior to the events of 1 August, you had been feeling helpless, powerless and worthless because of your inability to do anything more to try and improve your wife’s quality of life and her health.
He refers to your diary entry of 1 August 2012 which reads:
It’s time, I’m ready. It may sound tragic but that’s how it is. I’ll see how the day turns out I can’t watch my Beryl slipping away anymore. I want to go with her. Goodbye farewell.
He described you as shocked, puzzled and distraught when your plan for you and your wife to pass away together failed. He said you were even more shocked when you were not permitted to see her and your desire is to now, at some stage, be able to see her. When discussing with you the possibility of you having to serve a jail sentence, he said your comments were to the effect that the worse sentence has already been passed upon you – that of never being able to see your wife again now that you know that she is alive.
He stated:
In my opinion Mr Klinkermann remains obsessed regarding his affection for his wife and her welfare. He stated he hoped something could be done so he could again see his wife. At interview he acknowledged his actions in attempting to take his wife’s life, even though she was terminally ill, constituted the commission of an offence in this State. I asked him whether he thought he would choose to take his own life when his wife’s life eventually comes to an end and he simply smiled. In my opinion it is reasonable to conclude Mr Klinkermann has most probably decided he will take his own life when he is informed his wife has passed away.
In my opinion, Mr Klinkermann presents as being moderately depressed. In my opinion his depressive symptomlogy is situationally related and reactive to his current life circumstances. He has no history of receiving any mental health treatment prior to the events of 30 August 2012. At interview he did acknowledge that he held quite strong views about the issue of voluntary euthanasia… Based upon the history provided by Mr Klinkermann, he was suffering a dysthymic disorder at the time of committing the offence on 1 August 2012. In my opinion, this dysthymic disorder had been in existence and undiagnosed and untreated for at least two years. As far as I could ascertain this dysthymic disorder had developed solely in response to his feelings of depression, powerlessness, sadness and affection for his terminally ill wife.
Significantly at interview, Mr Klinkermann acknowledged, in response to direct questioning on my behalf, he would probably never again be given the opportunity to be in his wife’s presence without supervision.
There are many sad aspects to this case. One of them is that you would not be before the court if you had allowed your wife to go into a nursing home or into palliative care where she currently is. Your desire to care for her solely undoubtedly exacerbated your exhaustion, your concerns, your depression and your feelings of powerlessness. A person who holds strong views about voluntary euthanasia ought not take the position of becoming a carer.
Despite those comments it is clear that you adored your wife. That everything you did, you did because you genuinely believed it was the right and appropriate thing to do. As I indicted, this issue of euthanasia is a very vexed question in our community and one that will have to be resolved in the not too distant future as we face an aging population. That Beryl Klinkermann is dying is not in dispute, nor is it in dispute that she was dying at the time that you attempted to kill her. It is the fact that people must be permitted, according to our law, to die at their own pace, no matter how slow or difficult that pace may seem to others, that is the issue that brings you before the courts. As I said earlier to keep an animal alive in the precarious health circumstances of some of those in palliative care may well lead to charges of cruelty, but the law protects human life and places it into a special category. It is protected at all costs.
However, I have to deal solely with you and these circumstances. One of the things our society does allow and permit is mercy. Whilst this offence carries a maximum penalty of 25 years imprisonment, that type of penalty is reserved for cases of the worst type, of repeat offenders involving crimes containing malice, viciousness, predatory or distinguished by torture.
Here your case is distinguished by love and your very misguided belief that you could improve the health of Beryl Klinkermann by being a devoted carer. It is exacerbated by your stubbornness, your desire and need to be correct and to be proved to be correct. That you loved her cannot be doubted, it has been attested to by numerous witnesses and even the children of Beryl, it is also demonstrated by your desire to die with her when you tried to kill her. Further, your main reason for doing the act that you did was your final acceptance, that despite your best endeavours the doctors were correct, Beryl was not improving, she was in fact deteriorating. Your perception was that no other person could look after her as well as you could, and, when you realised that, you determined to relieve your wife from the advanced dementia and Parkinson’s Disease, which in your perception now caused her to have a dreadful quality of life, with no hope for improvement.
I have to take into account in your favour your plea of guilty, the very early stage at which you made that plea, your full admissions to the police, your age, your state of health and your good character. You have not demonstrated remorse in the usual sense of telling people that you are sorry for your actions, but I am prepared to find that your early admissions and early plea of guilty are indicative of a degree of remorse.
Our society is not a vengeful one, and the law recognises this and approves and even requires the exercise of mercy in certain cases and I am unable to see any benefit to you or society in general in incarcerating you for any period of time.
The victim impact statement in this case is a difficult document, and I do understand the anguish that the family of Beryl Klinkermann feels, that anguish however won’t be reduced or salved by your incarceration.
I have sought and obtained an assessment of your suitability for a community corrections order and, as you are considered suitable, I intend to impose a community corrections order of 18 months with two special conditions, being s 48D(3)(d) medical treatment and rehabilitation and s 48D(3)(e) mental health treatment and rehabilitation.
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