R v Marden

[2000] VSC 558

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1465 of 2000

THE QUEEN

v.

ROBERT KEITH MARDEN

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JUDGE:	VINCENT, J.
WHERE HELD:	MELBOURNE
DATE OF SENTENCE:	21 NOVEMBER 2000
MEDIUM NEUTRAL CITATION:	[2000] VSC 558

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CATCHWORDS:      Guilty plea to manslaughter – Suicide pact – R. v. Iannazzone [1983] 1 V.R. 649 – Suspended sentenced imposed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms. S. Pullen	Office of Public Prosecutions
For the Accused	Mr. B. Halpin	M.D. Motherwell

HIS HONOUR:

1. Mr Marden, I have already indicated my view that a sentence of imprisonment, the service of which should be suspended, should be imposed in your case.  I will now provide my reasons for so concluding.

1. Robert Keith Marden, you have pleaded guilty to the manslaughter, at Beaumaris in the State of Victoria on 18 June 2000, of your wife, Joan Bernice Marden.

1. I note and take into account in your favour that you have no criminal history of any kind, and I accept that you have hitherto conducted yourself as a person of good character.

1. The background to and circumstances surrounding the commission of the crime for which I must now impose sentence upon you have not been the subject of any controversy.  They have been outlined by your counsel, Mr  Halpin, in a helpful collection of materials taken largely from the depositions which were presented to the Court prior to the hearing of the plea.  No objection has been advanced by the prosecution with respect to the accuracy of the picture thus shown.  I need only set out that background in a relatively brief form at this stage.

1. Both your wife, to whom you had been married for approximately 48 years, and you had an extensive history of poor health.

1. Mrs Marden suffered from rheumatoid arthritis for a substantial period of time, necessitating operations on her ankles, wrists, elbows and two knee replacements.  She was on constant medication that did little, however, to relieve per pain and continuing discomfort.  She was unable to perform everyday tasks, such as dressing herself, and she had tremendous difficulty walking, even with the aid of a frame.  You undertook the responsibility of caring for her, and obviously must have spent a substantial part of each day doing so over a quite long period.

1. With respect to your own health situation, I note that, in 1996, you developed angina which led to cardiac surgery and the insertion of a pacemaker.  You were classified as an "Extremely Disabled Veteran" in 1997 by the Department of Veterans Affairs.  Last year, you suffered a serious cardiac episode and, earlier this year, you were diagnosed as having lung cancer.  That news naturally caused your wife and yourself a great deal of distress.  You were admitted to the Alfred Hospital for major surgery but this did not eventuate as the diagnosis was discovered to be incorrect.  A few months later, you fractured a vertebrae at the base of your spine which hospitalised you for four weeks and led to ongoing physiotherapy and pain management sessions.  You have also been diagnosed as suffering from depression.  I have little doubt that your wife was similarly afflicted and accept that neither of you could see any prospect of enjoyable life ahead, each regarding the future with considerable anxiety.

1. In addition to the stress associated with your deteriorating physical conditions, it appears that the two of you were also troubled by some family issues which possibly contributed to your general sense of despondency.  The marriage of your only son, Robert, had broken down in 1993 and the children of that marriage were living in Sydney with their mother and stepfather, although they visited you on a regular basis.  I accept that the pair of you, and particularly your wife, were very fond of your grandchildren and wished to see more of them.

1. It appears that Mrs Marden and you were looking forward with much anticipation to the 18th birthday party of your eldest grandson, which was to take place on Saturday, 17 June, and that you were quite disappointed to learn that you were not invited.

1. On Tuesday, 13 June, your wife expressed the strong view that she did not want to continue to live as she had reached the stage when she could no longer cope with her pain and saw little reason to go on.  You replied that you felt the same way, but that you had no alternative than to persevere.  On either 14 or 15 June, your wife, who was obviously contemplating not only her own death but yours as well, asked that your wills be amended so that all of your assets would pass to your son.  This was speedily done.

1. On Thursday, 15 June, you had dinner with your son.  Mrs Marden told him that your wills had been changed so that everything would be left to him, that she wanted him to give her rings to certain friends after she died, and she handed to him some greeting cards, photographs and letters that she wanted him to keep.  She repeated that she did not want to live.  Perhaps thinking that she was joking, and certainly trying to improve her mood, your son, Robert, told her to "cut out the rubbish".  He then tried to cheer both of you.

1. On Saturday, 17 June, you drove to your son's home to wish your grandson a happy 18th birthday.  Mrs Marden cried for most of the journey as she was upset at the thought of not being able to spend the day with him.  That night, she again told you that she had nothing to live for.  She said that she was in constant pain and that she had "lost" her grandchildren.  She reiterated her desire to die.  Having formed the view that you could no longer look after your wife and home, and that you too were at the end of what you perceived as "useful life", you determined, pursuant to an understanding, which it seems was finally reached on that night, that you would both die.  Although no detail was discussed, it appears to have been accepted that you would kill your wife, ensuring that she was dead before killing yourself.

1. You thought that the best way to bring about Mrs  Marden's death would be to electrocute her whilst she was asleep, thereby affording her what you anticipated would be a quick and painless end. During the day of 18  June, you prepared an electrical extension lead and placed it beneath your bed in readiness for your plan.  You wrote a letter to your son explaining the situation and left it in a position where he would be sure to find it.

1. After your wife went to bed, you plugged one end of the electrical lead into a wall socket and placed the other end on her leg.  However, whilst the shock was sufficient to cause serious burns, it was not enough to kill her, and so you smothered her.  You then took a substantial quantity of assorted pills, which it seems would ordinarily have been enough to kill you; however, the pacemaker to which I have earlier referred kept you alive as it maintained a regular heart rhythm.  Your son found you the next afternoon, lying on the bedroom floor beside your dead wife.

1. The crime of manslaughter which you have committed can arise in a wide variety of factual scenarios and there are different ways in which it can be formulated according to the circumstances.  By reason of the many situations under which this crime may be committed, the range of penalties handed down by the courts is very wide indeed. 

1. In your case, the prosecution accepts that the actions in which you engaged, and which brought about the death of your wife, were done in pursuance of a suicide pact entered into by the two of you under which there was a settled intention that both would die.  [see R. v. Iannazzone [1983] 1 V.R. 649]. Obviously the entry into such an agreement reflects the extreme level of despair which it is reasonable to assume was experienced by the participants.

1. Against that background, whilst the principles of retribution and denunciation cannot be ignored as sentencing considerations in your case, they must, in my opinion, assume less significance than they otherwise might in the determination of an appropriate sentence.  Obviously no question of specific deterrence arises and there is no reason to suppose that you would ever again appear before a criminal court.

1. Nevertheless, it must be borne in mind that you acted with deliberation and a clear understanding of the significance of your actions.  You have unlawfully taken a human life.  That is an irrevocable fact which the law and our society regards with the utmost seriousness.  Through the sentences which they impose, the Courts must endeavour to reflect that seriousness and endeavour to deter those who may contemplate acting as you have done.  I should add, however, that I am conscious of the limited significance which is likely to be attributed to these considerations by individuals in such situations and, accordingly, the limited role which the principle of general deterrence can properly play as a sentencing factor in cases of this type.

1. Obviously, the sentence to be imposed in a specific case must be considered in the light cast by all of the circumstances relevant to the particular matter and the individual offender involved.  In that context, I now turn to your background.

1. You are now aged 76 years with, as I have earlier observed, no history of any prior involvement with the criminal law.  Your early background appears to have been unremarkable.  You completed your matriculation certificate at Hampton High School before joining the navy as an ordinary seaman in 1943.  You served in the South West Pacific as a radar mechanic before being demobilised in 1947.  In 1948 you joined John Sands Pty Ltd as a sales representative and within a short time you were appointed as the Victorian manager and, later, the Southern Regional Manager of that company.  You remained with that organisation until your retirement in 1982.  For the next three years you worked as a consultant until you finally retired from the workforce in 1985.  I note that you have been a keen golfer for most of your life, although you resigned from that activity in 1997 in order to spend more time caring for your wife.

1. You married Mrs Marden in 1952.  During your 48 years of marriage you had two children, a son Robert, who was born in 1952, and a daughter Julie, who died at the age of 11 in 1966 from leukaemia.  As I have earlier mentioned, you have two young grandsons of whom both your wife and yourself were very fond.  In summary, it appears that you have conducted yourself through life as a hardworking and responsible person of good character.

1. As I remarked during the course of your plea, the situation in which you now find yourself is genuinely tragic.  I accept the statement made by your son that "he did what he did to my mother out of the uncompromising love and devotion he had for her", and I note that there is nothing in the material before the Court which raises the suggestion that you may have acted out of some underlying animosity towards your wife or from some sense of frustration arising from the nature and extent of her disabilities.

1. I take into account in your favour that you pleaded guilty to the charge of manslaughter, and I have been left in no doubt that you are genuinely remorseful for your actions.  You have promised, and your son accepts, that you will not make any further attempts to take your own life.  He has remained supportive of you, and I understand that you will continue to reside with him.

1. I am familiar with and have had regard to the range of penalties handed down for the commission of the crime of manslaughter in this State over recent years, bearing in mind that each matter must be assessed in the light cast by its individual circumstances.

1. In all of the circumstances of your case, I consider that the proper exercise of sentencing discretion requires that a sentence of imprisonment of two years be imposed.  However, I am also of the view that the service of this sentence should be suspended for an operative period of two years.

1. I declare that the period of 23 days which you have undergone as pre-sentence detention be reckoned as having been served under the sentence hereby imposed and I direct that this declaration and its details be entered into the records of the Court.

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