R v Laracy
[2008] VSC 67
•14 March 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT GEELONG
CRIMINAL DIVISION
No. 1422 of 2006
| THE QUEEN |
| v |
| JODI ANNE LARACY |
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JUDGE: | LASRY J | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 27 February 2008 | |
DATE OF SENTENCE: | 14 March 2008 (Melbourne) | |
CASE MAY BE CITED AS: | R v Laracy (Sentence) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 67 | |
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CRIMINAL LAW – Sentence – Plea of guilty – Manslaughter – Provocation – Intellectual disability.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Gibson | Office of Public Prosecutions |
| For the Accused | Mr M.G. O’Connell | Victoria Legal Aid |
TABLE OF CONTENTS
Circumstances of the Offence.......................................................................................................... 2
The Nature of the Provocation........................................................................................................ 6
Background History and Psychological Diagnosis..................................................................... 7
The Relevance of Impaired Mental Functioning......................................................................... 9
Prior Convictions............................................................................................................................. 10
Plea of Guilty.................................................................................................................................... 10
Rehabilitation................................................................................................................................... 11
Victim Impact Statements.............................................................................................................. 12
Maximum Penalty............................................................................................................................ 12
Current Sentencing Practices......................................................................................................... 13
Conclusion......................................................................................................................................... 14
HIS HONOUR:
Jodi Anne Laracy, you have pleaded guilty to manslaughter in relation to the death of Mr Ian Keith Clissold. The maximum penalty for manslaughter is 20 years’ imprisonment. I propose to declare that your pre-sentence detention at 1,055 days, including this day and impose a sentence of seven (7) years imprisonment. I will fix a non‑parole period of four (4) years.
You were initially charged with the murder of Mr Clissold and a trial on that charge commenced before me. It was necessary for the jury to be discharged and the day that a new jury was to be empanelled, your counsel requested that you be re‑arraigned. You again pleaded not guilty to murder but guilty to manslaughter. On behalf of the Crown, Mr Gibson announced that your plea of guilty to manslaughter was accepted in full satisfaction of the presentment.
The basis for your plea to manslaughter is that your act which caused Mr Clissold’s death occurred while, as a result of Mr Clissold’s assaults on you on that occasion, you were deprived of self-control and thus acted as a result of provocation. However, the offence you have committed is a very serious one resulting in the loss of Mr Clissold’s life.
Circumstances of the Offence
You and Mr Clissold had been in a relationship since September 2004. For a period of time at the end of that year the relationship had broken down but it continued in the early part of 2005. Your counsel has submitted to me that the relationship was volatile. I accept his submission that in relation to conflict in your relationship there was an inequality during the physical confrontations by virtue both of your gender and your intellectual deficits. I am of the opinion that such inequality means that to characterise the relationship as being one where you and Mr Clissold were “as bad as each other” is likely to be an inaccurate generalisation and I do not accept it.
I do accept that the evidence infers that you were the subject of violence from time to time at the hands of Mr Clissold, although I suspect it was usually in the course of drunken and emotional arguments between the two of you. Beyond that I am not sure that I can make any further well‑informed characterisation of the relationship.
Over the period of your relationship the deceased lived in Colac but would stay over at your unit from time to time. You and he were both heavy drinkers and you are an alcoholic. I suspect Mr Clissold was also.
On Thursday, 21 April 2005, the deceased travelled from Colac to Camperdown to see you. During that day there was a significant amount of drinking, including at the home of a neighbour, Ms Debra Seal. During that afternoon, Ms Seal’s boyfriend, Mr Stephen Nemet, arrived at Ms Seal’s house. It was his birthday and the consumption of alcohol continued.
During the afternoon you and Ms Seal travelled into the town to obtain a drug called Oxycontin for Ms Seal. Oxycontin is an opioid analgesic and is used to treat pain when other drugs have not been effective in doing so. In order for Ms Seal to obtain this drug from the pharmacy, she needed you to be present because she had been banned from going into pharmacies in Camperdown, apparently in relation to “doctor shopping” for drugs. The Oxycontin was obtained and you both returned to Ms Seal’s house.
Some time after you returned there was an argument between yourself and the deceased in relation both to obtaining cigarettes from a service station and also probably in relation to the use of drugs. There was then a physical confrontation between Mr Nemet and the deceased. The evidence that I have heard indicates that Mr Nemet hit the deceased at least twice and hit him sufficiently hard to cause the injuries to his face which can be seen in the post mortem photographs.
At the insistence of Ms Seal, the deceased then left the premises and went next door to obtain assistance to leave Camperdown. He sought that assistance from the witness Ms Suzanne Bisschop and her partner, Mr Gary Hanley, who observed that the deceased was injured. Some time on that Thursday evening a note was written by the deceased addressed to you indicating that he was leaving the relationship, but expressing his love for you.
The police attended at the unit of Ms Bisschop and took the deceased to the Camperdown railway station that evening at about 6.15 pm. He boarded a train and went to Colac but then returned to Camperdown later that night, also by train, at about 8.45 pm. The police officer who had taken him to the Camperdown station for the first trip gave evidence at the committal proceedings that he did not consider that the deceased was overly affected by alcohol.
In my opinion, Mr Clissold returned to Camperdown for reasons that were more to do with his relationship with you than simply retrieving his belongings. He went to your unit and the overwhelming likelihood is that there was more drinking by both of you during the time that he was there and there were discussions and ultimately a confrontation in relation to the issues which were coming between the two of you.
At about 11.00 pm, neighbours heard the sound of conflict which apparently concluded with the deceased’s voice being recognised as saying to you “it’s alright” and that you could go back inside. There was another voice participating in the argument which neighbours overheard and which is not identified.
Some time after that there must have been a heated argument between you and the deceased. During that argument the deceased assaulted you on several occasions which, as the Crown accept, caused you to lose control and kill the deceased. The fact of the assault on you appears to be corroborated by photographs taken later of the bruising you sustained, and observations made by Dr Andrew Griffiths at the Camperdown Hospital. That bruising had also been noticed by your neighbour, Ms Rosemary McNabb, when she saw you early on the following Sunday morning. The evidence indicates that there was also damage to the interior of the unit which seems to be explicable by the physical violence which was being inflicted on you.
It is agreed between the Crown and your counsel, Mr O’Connell, that the evidence indicates the physical confrontation between the two of you was both inside and outside your unit. It is submitted, and I accept, that the application of the wire to Mr Clissold’s throat which caused his death was a direct response to the violent confrontation and the violence that he applied to you.
During the course of submissions the learned prosecutor submitted that Mr Clissold was likely to have been “compromised” by the consumption of alcohol. His blood alcohol concentration was 0.22 per cent on post mortem. That is a very high reading and however used to alcohol he was, it is hard to imagine it did not have some effect. However it is clear that you were both heavy drinkers and to some extent inured to the effect of alcohol as a result of what is, in effect, an addiction to that drug. As your counsel has submitted, however “compromised” Mr Clissold was, he was able to inflict on you the assaults which were evidenced by the bruises you sustained and which were later recorded.
How you actually did what you did to cause Mr Clissold’s death is not absolutely clear to me, but the cause of death was identified as a neck compression as a result of the application of a ligature. In opening the plea hearing, the Crown outlined their case as being that you manually caused the death of the deceased with a ligature, namely a length of insulated copper wire tied or applied around his neck late in the evening of Thursday, 21 April 2005, or in the early hours of the morning of Friday, 22 April 2005.
The result of this was that Mr Clissold died and his body remained in the backyard of your unit for some considerable time. There was no attempt by you to conceal the body and, indeed, on the following Saturday, affected by alcohol, you told Ms Seal and Mr Nemet that there was a body in the backyard. The evidence is that they did not believe you. You also told Mr McNabb that you had a problem with your boyfriend and wanted Mr McNabb to get rid of him. Ultimately, on late Saturday afternoon, 23 April 2005, a friend of the deceased went to your unit and saw his body lying in the backyard and an ambulance was called.
On Sunday, 24 April 2005, you had a very long discussion with Ms Suzanne Bisschop and gave what were described as “convoluted” explanations of how the deceased met his death. During that discussion you produced a piece of plastic coated wire from under the cushion of the lounge chair, saying that the deceased had been hanging by either that wire or one similar to it in the backyard. The wire was handed to police on Monday, 25 April 2005.
The pathologist who performed the post mortem on the deceased has said in his statement that the wire is consistent with the ligature marks on the body of the deceased, the cause of his death being identified as neck compression.
It does seem to me that your post-offence conduct represents a clear inability to deal with what had occurred, coupled with a significant emotional response which I consider included remorse.
The Nature of the Provocation
Among several factors set out in s 5 of the Sentencing Act 1991 (Vic), I am required to consider the nature and gravity of the offence, and your culpability and degree of responsibility for the offence.
Authority dictates that the assessment of the gravity of your crime must take account of the provocation to which you have been subjected.[1] It was submitted on your behalf that the provocation by the deceased was serious and was substantially constituted by actual violence. The Crown accept that that is so and the provocation in your case can be contrasted with the provocation in some other cases to which I was referred which involved words only or marital disharmony without physical violence.[2] In my judgment, therefore, this does take your offence outside the category of the gravest of homicides short of murder. In addition, it is relevant to note that in my opinion, your capacity to deal with provocation was reduced by the intellectual deficits from which you suffer and to which I refer in some detail hereunder.
[1]DPP v Kallipolitis (Unreported, Court of Appeal of Victoria, Ormiston, Callaway and Kenny JJA, 8 May 1998) at 8; R v Ramage [2004] VSC 508 at [38].
[2]See R v Randall [2007] VSC 35; DPP v Rhodes [2007] VSC 55.
Background History and Psychological Diagnosis
In order to understand the objective circumstances of the offence it is, I think, appropriate to describe in some detail your background history and your psychological condition as it is presented in the evidence before me. You are 36 years of age, having been born the eldest child of your mother who was 15 at the time of your birth. You have a full sister, a half sister, a half brother, and a stepbrother. You have a daughter who is now aged 15 and lives with her father. You have virtually no contact with your daughter. You also have a son, Joshua, who is aged 10 and is in permanent care.
Your history reveals that when you were growing up as a teenager you were living with, among other people, a man who you believed was your biological father. When you were 13 sexual assaults began on you by him. You complained about those assaults to your mother who did not believe such events were occurring.
Just after your 15th birthday this man raped you and you found assistance from a friend of your mother who believed your allegations. You were examined at the Ballarat Hospital and the man concerned committed suicide very shortly before he was due to be interviewed by the police. It was not until after his death that you learned that in fact he was not your father. You are now aware that your natural father is also deceased. The sexual assaults on you had a dramatic effect, particularly because they became known amongst other students at the school you attended.
Your experience of family has included a constant abuse of alcohol both on the part of your mother and the men who have been in her life. Your education lasted until some distance into Year 9, but the consequences of sexual assaults and the suicide of the man who had raped you had such an effect that it was decided that you should leave school.
At the age of 18 you began a relationship with the man who is the father of your daughter, Kimberley. About six months after Kimberley’s birth you were regularly assaulted by this man, who was both a marijuana user and an alcoholic. The occasions on which you were beaten into unconsciousness were regular.
You left the relationship and reluctantly left your daughter with her father. You are not aware of the identity of the father of your son, Joshua, and he is now in permanent care.
Your abuse of alcohol began when you were 18 years of age and in consultations with several people you have had no difficulty in admitting that you are an alcoholic and that your consumption of alcohol was very substantial. You have also used amphetamines for a short period of time and you were injecting the drugs Oxycontin and MS Contin, which are narcotic analgesics. You have also used marijuana.
On Monday, 25 April 2005, you were taken into custody in relation to the murder of Mr Clissold. You have been in custody ever since. On 3 February 2006 you were examined by Mr Gary McMullen, clinical psychologist, at the request of your lawyers. Mr McMullen prepared a reported dated 12 December 2006. The opinion expressed by Mr McMullen was to the effect that you suffer from mild mental retardation and that your intellectual capacity has been seriously compromised by “half a life time of serious substance abuse”. He was also of the view that you suffer from post traumatic stress disorder (PTSD) caused by your stepfather’s multiple sexual assaults and exacerbated by the assaults inflicted by your ex‑partner and the loss of your two children. He further considered that you suffered from alcohol dependence and opioid dependence and that you were in need of treatment for the conditions from which you suffered. Mr McMullen assessed your IQ at 58 which means that 99.7 per cent of people of your age would perform better.
Mr McMullen’s report was updated on 24 February 2008 and he gave evidence before me on 27 February 2008. Apart from the psychometric testing which had been carried out on 3 February 2006, on 23 February 2008 he had you complete the PTSD scale which is to aid the diagnosis of PTSD. His opinion was that having regard to the results of that test you are suffering from moderate to severe chronic PTSD. In his opinion, “[t]he results suggest that the symptoms are causing a severe impediment to her level of functioning”.
Some years prior to your arrested in relation to the death of Mr Clissold you lived an isolated existence in Camperdown, punctuated by constant alcohol consumption and drug abuse. You have need for ongoing care. I will return to questions of rehabilitation shortly.
The Relevance of Impaired Mental Functioning
In R v Verdins,[3] the Court of Appeal reformulated the principles arising from R v Tsiaras,[4] and identified six ways in which impaired mental functioning (whether temporary or permanent) is relevant to sentencing. Those six ways were as follows:
[3][2007] VSCA 102.
[4][1996] 1 VR 398.
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence may weigh more heavily on the offender that it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.[5]
[5]Ibid at [32].
The Court, in dealing with the reduction of the offender’s moral culpability, also identified a number of ways in which impaired mental functioning at the time of the offending might have that effect, including by
(a)impairing the offender’s ability to exercise appropriate judgment;
(b)impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c)making the offender disinhibited;
(d) impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e)obscuring the intent to commit the offence; or
(f)contributing (causally) to the commission of the offence.[6]
[6]Ibid at [26]
On the evidence of Mr McMullen, coupled with the details of your personal history, there is, in my view, no question that considerations (a), (b), (d), (e) and (f) apply to you. You are in that category of offenders referred to by the New South Wales Court of Criminal Appeal in R v Matthews,[7] who were described as people that the community would readily understand suffered from a mental disorder or abnormality which left them less in control of their cognitive facilities and emotional restraints, and lacking the ability to make reasoned or ordered judgments.[8]
[7](2004) 145 A Crim R 445.
[8]Ibid at 450.
Prior Convictions
You have 13 prior convictions from seven appearances before various Magistrates’ Courts between 1996 and 1997.
I agree with your counsel’s submission that those convictions do not disclose any propensity for violence and, apart from being part of the narrative of events relevant to your personal history, do not otherwise have importance for sentencing purposes.
Plea of Guilty
You have pleaded guilty to the charge of manslaughter. As far as I can understand, that plea was the first occasion on which you acknowledged responsibility for the death of Mr Clissold. Your plea of guilty was first entered by you on what would have been the first day of the trial after the first jury had been discharged. Your counsel acknowledges that the plea is a late plea but should nonetheless attract “significant weight” because it is consistent with remorse and made in circumstances where conviction was not inevitable. The benefit of avoiding a further two weeks of trial was also referred to and those considerations are all valid. In the particular circumstances of this case, which I have already outlined in some detail, I consider that your plea of guilty is a more significant sign of remorse than might usually be the case and I sentence you on that basis.
Rehabilitation
The evidence indicates that your rehabilitation has significantly progressed mainly as a result of your having been held in custody for a now significant period as a remand prisoner. I agree that custody as a remand prisoner is a more difficult existence than custody being served as a sentenced prisoner. It restricts your ability to participate in programmes and perhaps to obtain the necessary assistance for some measure of rehabilitation. I should also note that in the period of almost three years between the offence and the finalisation of your trial you have spent that time as a remand prisoner facing a charge of murder. I accept the submission that that is a difficult situation to be in for such a significant period of time.
However, impressive evidence was given by Ms Jennifer Critchlow who is a volunteer at the Dame Phyllis Frost Centre in the Alcoholics Anonymous programme. She has taken a particular interest in your rehabilitation and her evidence indicates that over the period since you have been in custody you have attended every meeting of Alcoholics Anonymous in that prison that you could have, except one. She described you as the “best attending” participant. Each year a medallion is awarded for a year of sobriety and you are about to receive your third medallion. She described you as totally accepting of the programme and demonstrating great determination to continue with the programme upon your release from prison.
Ms Critchlow has also given evidence that once you are released into the community she would willingly support you in order that your reorientation can continue and your treatment can progress.
Your counsel also informs me that your mother, who is hospitalised with an alcohol related condition, may gain some benefit from you being able to assist her.
Victim Impact Statements
During the course of the proceedings I received a joint victim impact statement prepared by Ms Dawn Smith, Ms Amy Smith and Ms Elaine Densley who are, respectively, the aunt, cousin and aunt of Mr Clissold. I also received a similar statement from Mr Kenneth Clissold, brother of the deceased, and Mr Paul Clissold, also a brother of the deceased.
These victim impact statements serve to remind all of us of the consequences of the loss of a family member in the particularly tragic and desperate circumstances in which Mr Clissold met his death in this case.
Nothing that this Court can do will solve the loss that they have endured. Those facts in themselves suggest that the impact of your crime on Mr Clissold’s family is a severe one.
Maximum Penalty
I have noted that the maximum penalty for manslaughter is 20 years’ imprisonment and I am required to take that into account. In R v AB (No. 2),[9] the Court of Appeal, in dealing with a ground of appeal that argued the sentencing judge had placed too much weight on the maximum penalty, said:
The maximum sentence provides a guide as to the seriousness with which a particular offence should be viewed. It serves as a directive to the courts on how to weigh the gravity of such criminal conduct, the maximum penalty itself being prescribed for the worst class of the offence in question.[10]
[9][2008] VSCA 39.
[10]Ibid at [40], citing Hansford v His Honour Judge Neesham [1995] 2 VR 233, 236; R v Sibic (2006) 168 A Crim R 305, [14]-[17] (Redlich JA); R v Sibic (2006) 168 A Crim R 305, [14]-[17] (Redlich JA); Ibbs v R (1987) 163 CLR 447; R v Dumas [1998] VR 65, 71-2.
As the Court noted, the penalty for manslaughter had been increased in 1997 and that there was an expectation that sentences would be increased. However, I should note that unlike the circumstances in R v AB, your offence could not be categorised as manslaughter of the gravest kind.
Current Sentencing Practices
I am required to take into account current sentencing practices and as Nettle JA observed in R v Ibrahim, it is a factor about which views are likely to differ.[11] In R v Casey,[12] his Honour referred to the observation of Gleeson CJ in R v Blacklidge,[13] that
[i]t has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases.[14]
[11][2006] VSC 96 at 58.
[12][2006] VSC 146 at [23].
[13](Unreported, Court of Criminal Appeal of New South Wales, Gleeson CJ, Grove and Ireland JJ, 12 December 1995).
[14]Ibid.
In R v Bangard,[15] the Court of Appeal noted the traditional reservation that appellate courts have about the use of sentencing statistics because, as Eames JA noted:
The sentencing process, whether at first instance or on appeal, is not amenable to simple comparisons or mathematical precision: too many variables are involved as between cases and no two cases have the same factors or equally weighted factors of mitigation and aggravation.[16]
[15][2005] VSCA 313.
[16]Ibid at [23].
However, in that case the Court went on to make clear that whatever the limitations, “… the Courts should not discourage counsel from providing such practical assistance …” in that form.[17] In this case, I have received that assistance from counsel who have provided examples of other cases of manslaughter sentences, some of which bear some similarity to this case whereas others are significantly different.
[17]Ibid at [34].
In addition, in the course of submissions in this case, reference has been made to the very useful research paper of the Sentencing Advisory Council entitled Provocation in Sentencing (published in February 2008) in which current sentencing practices can be identified and which is a valuable resource.
The wide range of differing circumstances capable of amounting to manslaughter, however, impose additional limitations on the value of any attempted comparative sentencing analysis. Your case has its own unique features and so while I have paid attention to current sentencing practices, the assistance of those practices is, in this case, limited.
Conclusion
Although there is no question that the offence of manslaughter in the particular circumstances where provocation has led to the killing is very serious, I am of the view that the circumstances which prevail here require that both specific and general deterrence be sensibly moderated in view of your intellectual deficits and your diagnosed PTSD. I also consider that your prospects for rehabilitation are good given the support that you already have and which appears to be likely to be available to you in the future, as well as your determination to improve your circumstances upon your release. In balancing these considerations and bearing in mind current sentencing practises to which both counsel have referred in detail during the course of submissions, I have come to the following conclusion in relation to your sentence.
I declare that your pre-sentence detention is 1,055 days, including this day. I direct that that be recorded. For the manslaughter of Mr Ian Clissold I impose a sentence of seven (7) years imprisonment. I fix a non‑parole period of four (4) years. I have signed both the forensic sample orders, and the forfeiture and disposal orders, as requested by the Crown which were not opposed by you.
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