R v Nielsen

[2012] QSC 29

[2012] QSC 29

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

DALTON J

Indictment No 1036 of 2010

THE QUEEN

v.

MERIN NIELSEN

BRISBANE

..DATE 16/02/2012

SENTENCE

HER HONOUR:  Would you stand up, please, Mr Neilsen?  Merin
Nielsen, you have been convicted by a jury after a trial on a
charge of aiding suicide.  The suicide was Frank Ward, aged
76.  There is no doubt that Mr Ward wished to commit suicide,
and did so.

Mr Ward was born in Scotland.  He emigrated to Australia to
marry.  He had no relatives of his own in Australia, although
he had relatives of his wife.  They, however, lived in
Canberra.  His wife and he lived in Brisbane.

His wife developed multiple sclerosis, and he nursed her
through a very long period of incapacity with that illness.
He was her sole carer, and it appears that he nursed her for
something like 20 years.  As a result of that experience,
Mr Ward had no time for doctors, and he had a firm desire to
himself avoid a prolonged illness or incapacity.

The evidence was that Mr Ward was an isolated man in his old
age, and perhaps that was partly as a result of his being an
immigrant; partly, I suspect, as a result of the middle years
of his life being devoted to the care of his wife; and,
perhaps, partly as a result of his own personality.

I don't accept that he was lonely or vulnerable because of his
isolation.  Witnesses described him as stubborn and
cantankerous.  He certainly knew his own mind, and there is no
question that he had full capacity at all relevant times.

He seems to have had little contact with his wife's relatives.
He lived in a block of units which were public housing units
and seem all to have been occupied by single people, many of
whom were of an age with him.  All of the residents of that unit block gave evidence that he kept to himself, more or less.  He did regularly attend a meditation group, and that was for many, many years. 

In about 1980 or 1981, when you were 19 or 20 and he was
around 45, you met when you joined that meditation group.  You
had contact with him then regularly over a long period, but
the contact was of a limited nature, simply being at the
meditation sessions and perhaps at a cup of coffee held at the
hall after that.  There is certainly no indication of any
closer or even social contact outside that meditation group.

In July 2007 Mr Ward suffered from a stroke.  He went to
hospital.  He was assessed during the day and discharged that
evening.  That was the 11th of July 2007.  The stroke was not a major event.  He lost the use of his right arm temporarily.  From what the other residents of the units say, and from what a witness Mrs Jansse says, it seems clear that the stroke knocked him about, not just physically but psychologically, but it seems also clear that he recovered relatively soon afterwards.

It is a measure of Mr Ward's isolation, I think, that having
suffered from the stroke, he telephoned Mrs Jansse and asked
her to visit.  She had known Mr Ward and his wife 30 years
previously through the meditation group.  She had moved to
South Australia and had very little contact with Mr Ward for
about 30 years.  She had, shortly prior to the stroke,
returned to Brisbane to live.  As I say, he contacted her after suffering this stroke.  He told her that he was going to die that weekend and that he wanted to give her his car and a set of good crockery.  She visited him.  He did give her the car and the crockery.  She didn't think he was going to die that weekend.  She made considerable efforts to organise some medical assistance and care for him.  He rejected both those things.

She herself offered him assistance over the next four or five
weeks, she remembers, but Mr Ward improved and after a period,
she now thinks of about four or five weeks, perhaps it was a
few weeks longer, she gave him the car back because he was
driving again.  And the evidence of the witnesses who lived in
the unit block was similar, that they noticed at first after
the stroke he was in difficulty, but that he gradually
returned to health, and his attitude was, I think one of them
said, that he got better, or that he was going to get better -
a little bit better - every day.

I think it is fair to conclude that having suffered a
relatively minor stroke, Mr Ward overreacted to the physical
sequelae, perhaps understandably, given the experience he had
had in nursing his wife.

Your relationship with Mr Ward increased at this time.  He
asked you for help and you gave it.  He trusted you.  He made
you his Power of Attorney on 25 July 2007, and he made you the
sole beneficiary of a will dated the 5th of August 2007.

A previous document, which he perhaps intended to be a will,
but which was too informal to amount to a will, left his
estate to the meditation group and asked that the group invest
the capital of his estate and distribute half of the yearly
income amongst seven relatives, his own brother and sister and
some relatives of his wife.  It was a tenuous gift in that it
was conditioned on them being active members of the meditation
group.  You were aware of the terms of that earlier testamentary document, you were a witness to it, and on sentence your counsel said you assisted in the drafting of it.

At the same time, July 2007, as Mr Ward had his stroke, made
you his Power of Attorney and made you his beneficiary, you
contacted Exit International, a pro-euthanasia group on Frank
Ward's behalf.  Their records show that the contact came
initially from you and that you asked that you be the person
they contacted, not Frank Ward.  The records also show that
Frank Ward confirmed that this was in accordance with his
wishes.

During this time, following his stroke in July 2007, you
assisted Mr Ward for a time.  You assisted him with shopping
about once a week, you told the police, when interviewed.  You
also assisted him with financial things, including banking,
and you estimated on three occasions you took cash from him in
an amount of about $5,000 to purchase gold bullion.  Mr Ward,
it is established from independent evidence, followed the
financial markets and apparently formed the idea that gold
bullion was a good investment at that time.  The bullion was
found in Mr Ward's home after his death.  The relevance, I suppose, is that you gained through this time some idea of his financial state, although there is no evidence that you had any precise idea of his net worth.

As Mr Ward got better, that is, as he recovered from his
stroke, your contact with him decreased.  You told police,
when interviewed, that prior to June 2009 your contact with
him was once every one or two months.  It was no longer
necessary for you to assist him but you would attend at his
unit and you would sit and talk to him whilst having a whiskey
together.  You told the police that you felt under some
obligation to continue being friendly to Mr Ward because he
had made you the beneficiary of his will.

So after a long period of regular but not close contact, your
relationship with Mr Ward became closer.  You were now seeing
him regularly, although not frequently, outside the meditation
group.  But at the same time, the relationship could not be
described as being a particularly close friendship.

After July 2007 when you initially contacted Exit International on behalf of Mr Ward, there were two visits
which you arranged by ladies in an organisation called Nancy's
Friends to Mr Ward's unit.  You were present on each occasion.
These visits, it seems, were to discuss end-of-life options,
including euthanasia, and there was exhibited in the trial a
detailed sheet of notes which you told police you took at one
of the visits.  The notes explain in great detail how to obtain the drug Pentobarbital from Mexico. 

As I say, there is no doubt on the evidence that Frank Ward wished to take his own life should circumstances amount, in his view, to a situation where he was no longer independent, or no longer had quality of life.

As well as the visits from Nancy's friends, there is evidence
that you made other inquiries on his behalf, for example as to
the availability of helium, which can apparently be used to
induce suicide, or to be used by someone to kill themself.

The involvement was obviously more than just philosophical
chats about the idea that Frank would take his own life if the
quality of his life deteriorated.  In November 2008, the
evidence shows some quite concrete inquiries by you as to air
flights to Mexico, presumably to obtain Nembutal, and to
passports and international driver's licences.

Now, the relevance of that, of course, is that well before
June 2009 you had thought, in a fairly concrete and fairly
organised way, as to what it would be necessary for you to do
if you were to assist Frank Ward in obtaining either Nembutal
or helium, or some other substance which he could use to end
his own life.  That is, really, by the events we're concerned
with in June 2009, you had been considering these matters in a
fairly concrete and detailed way for almost two years.

The evidence is that you have three university degrees.  The
references tendered on your behalf yesterday almost all spoke
of your intelligence, and it is not without significance that
your chosen field of study at university is philosophy.  There
is no doubt that through that time, between July 2007 and June
2009, it must have occurred to you that you had a financial
interest, a personal financial interest in Mr Ward's death.
And, as I say, that arose because at about the same time you
got in contact with Exit International, you became the sole
beneficiary of his will.

There matters rested until on the 11th of June 2009, the phone
records show you received a telephone call from Mr Ward very
early in the morning.  It seems consistent with other
evidence, and your statement to police as to this phone call,
was that Mr Ward rang you upset because he said he had
suffered a second stroke.  Now, because of Mr Ward's attitude to doctors, he never saw a doctor to find out if, indeed, he had suffered a stroke at that time, or, indeed, if he was suffering from any other condition at that time.

The pathologist who gave evidence at the trial after
conducting an autopsy found evidence of an earlier stroke,
which I think we can accept was the July 2007 stroke.  There
was no evidence of a recent stroke.  The doctor was not asked
to be definitive, and I act on the basis that he could not
have ruled out a recent stroke on his findings at autopsy, but
at the same time we simply do not know whether or not Mr Ward
had indeed suffered a second stroke.

The autopsy did reveal thrombi in Mr Ward's calves, some of
which had moved to his lungs.  That was no doubt a serious
condition, but the doctor's evidence was that those conditions
manifested, at most, four days before death, so it certainly
wasn't what was affecting Mr Ward on the 11th of June 2009.

I interpolate here that on autopsy it was found that Mr Ward
suffered from prostate cancer, severe or moderate to severe
arthrosclerosis, and, as I say, thrombi in his legs and
pulmonary emboli as a result.  All of those conditions were
serious and the doctor's view was that had that been all that
was discovered at autopsy, he could have accounted for
Mr Ward's death on the basis of one or all of those three
conditions.  On the other hand, the toxicology clearly revealed that, in fact, those conditions did not account for Mr Ward's death but that he died because of lethal levels of Pentobarbital.  It should also be said that the pathologist was quite equivocal as to whether or not the three serious conditions he found on autopsy would have been symptomatic in any way in Mr Ward.  He simply couldn't say whether they affected him by causing pain or other symptoms in his day-to-day life.  And he simply couldn't say whether or not those conditions would have proved fatal to Mr Ward in the short or medium term.

I have no doubt that something was affecting Mr Ward as at the
11th of June 2009.  Mrs Isobel Murphy, his neighbour, said that he was using a lightweight chair to move around the unit, that is, he'd push the chair along the carpet and walk along behind it using it to support him.  On the Tuesday of that week he had Mrs Murphy and another resident of the unit take his wheelie bin out to the street.  I have no doubt, given Mr Ward's character, so far as one can judge it from the evidence in this case, that he would not have ‑ or that he would have regarded that as an indignity, and he would not have suffered that indignity unless he really couldn't take out his own bin.  So there is no doubt that something was affecting him but, as I say, we simply don't know what it was because he did not consult a doctor.  It may well have been a physical condition.  It may well have been a psychiatric condition. 

In this regard I note Mrs Jansse's evidence was that for some short time before that, a few weeks, she noticed he did not attend the meditation group and that she recalls when he did last attend, she thought he looked unkempt or unwashed.  Now, again that is consistent with his suffering from a physical complaint but it is equally consistent with his being depressed or suffering some other psychiatric condition. 

In any case I accept there was something affecting him as at 11 June and that he was upset about it and that he renewed his request to you to obtain Pentobarbital from Mexico. 

I think what is relevant here is that neither Mr Ward nor you knew of the underlying conditions which the pathologist found on autopsy.  Neither Mr Ward nor you knew what was wrong with Mr Ward at that stage.  You didn't know what illness was affecting him, what its prognosis was, what its likely duration was.  You told the police on interview that you thought he had had a stroke.  You really had no basis to assume that.  You talk several times during the interview about something which  - I assume you mean to make reference to transient ischaemic attacks.  Each time you mispronounce that ‑ it's probably more than mispronounce - you misname that condition.  At first I thought it might have been a slip of the tongue or an error in the transcript but it's clearly not.  I mention that because it's such an acute pointer to the fact that you really had no idea what medical conditions Mr Ward had at the time or what their likely duration or prognosis was. 

After the telephone call on the 11th there is no evidence at all that you took any reasonable steps to find out what medical condition was affecting Mr Ward or that you waited for time to pass to see whether he improved or deteriorated.  On Saturday, the 13th you took $7,000 cash from him and made arrangements, hurried arrangements, to depart Australia.  You left Australia on the morning of Saturday, 14 June.  I don't consider that this haste in leaving to go to Mexico to obtain the Nembutal was satisfactorily explained.  You were 48 years old at the time.  You were a mature, educated person.  You had been aware of the issues raised by Mr Ward's wishing to take his own life if the quality of his life deteriorated, as I say, for well over 18 months. You certainly had time to consider what would be a reasonable response on your part. 

Mr Ward, I accept was incapacitated by something to the extent that he had difficulty walking without the support of a chair and could not take his own wheelie bin out. But at the same time he was up and about his unit.  He was dressed in day clothes during the day.  The evidence from the other residents of the block is that they assisted him morning and night but essentially he was able to care for himself.  He still had his drink, or his happy hour as he called it, at the end of the day.  He complained to one resident at one point about having pain in his chest but this is in the context of him being up out of bed and talking to her.  It's nothing like the sort of serious, extreme conditions that can manifest, for example, when someone has a long‑term battle with cancer. 

The case which you ran at trial was that, having gone to Mexico for the purpose of obtaining Nembutal, you reneged when confronted with the reality of the purchase in Mexico, in circumstances where you felt released from the pressure put upon you by Mr Ward.  The jury clearly rejected that story, in view of really quite overwhelming evidence in the Crown case.  The point is I think though, for me on sentencing you, that you did have, having had, as I say, more than 18 months to consider these issues, you did have very acutely five days away and time to think, and think again, about what you were doing. 
As I say, the jury verdict is only consistent with your having brought the Nembutal or Pentobarbital in Mexico and returned to Australia to supply it to Frank Ward.  You arrived at the Brisbane Airport about 2.30 in the afternoon, on 20 June and from there you went to Frank Ward's unit.  He was found sometime about 20 past 5 that afternoon dead, and in such a state that the ambulance saw no need to attempt resuscitation.  There was a bottle of Phenobarbital next to him, some of its contents in a glass, and as I say, the evidence is that's clearly what killed him. 

I spoke to your counsel and the prosecutor yesterday about the seeming haste of these events subsequent to your return to Australia.  I accept that that haste, on the 20^th, was due to Frank Ward's own haste in pursuing what he desired. 

The evidence shows then that Mr Ward was a man who, because of
his own peculiar circumstances and life experience, had a
great fear of long‑term ill‑health and had certainly overreacted to a health scare two years earlier. 

Something began affecting him on about the 11th of June.

There is no medical opinion as to what it was; as to what his prognosis was, or how permanent the condition was from which he began to suffer on the 11th of June.  No information at all as to that condition, as to its duration or severity, or as to treatment options that were available for it.  Without allowing time to pass, without urging inquiry as to any of these things, you made an extraordinary effort to get him the drug he wanted to use to suicide.  As I say, at the time Mr Ward was clearly affected by some medical condition, but he was not in extreme pain, he was not severely ill, or severely incapacitated.

I refer to the case of The Queen v Johnstone [1987] SASR 482

at 485.  That was a case where the respondent was convicted on

his own confession of the murder of his wife.  The evidence

showed that the respondent was a man of unblemished reputation

and career who had killed his mentally ill wife at her own

request.  She had a history of 30 years of mental illness and

alcoholism through which he had cared for her and she had

attempted suicide three times before.  So it is a different

charge and a much more serious charge than the charge for

which I sentence you.  But because of his wife's condition and

request, obvious points of similar principle arose for

consideration for the Court in considering the criminality of

his conduct.

The decision is one of the Court of Criminal Appeal in South

Australia, and I will read this passage from the judgment of

the Chief Justice, King CJ:

"Cases such as this present great difficulty to the

sentencing Judge and to an Appellate Court.  People

cannot be permitted to take life in defiance of the law,

however altruistic their personal motives may be.  It is

the responsibility of the Court to impose punishments

which will maintain respect for the law and deter others

from defying it.  It is necessary to say bluntly, lest

there be any misunderstanding, that where the law in this

respect is defied coolly, deliberately, and without the

pressure of emotional stress, perhaps by reason of a

personal belief that the law should be different, the

punishment must be as severe as befits the gravity of the

crime of murder.

In such a case the dominant purposes of the punishment

must be the maintenance of respect for the law which

protects human life and deterrence of offending by

others.  Those purposes must be reflected in the

non-parole period.  Where the murder is committed by a

loved one who is moved by the plight and entreaties of

the victim, there is rather more scope for compassion and

leniency in fixing the non-parole period."

As I say, that was a case of murder, but the principles, and

the contrast between a deliberate defiance of the law, and a

defendant who is moved by the plight of entreaties of a victim

for whom they care and whom they love is apposite here.

In this case, there was a deliberate breaking of the law by

you and there is no doubt from the evidence, including the

handwritten notes you made of the procedure to obtain

Pentobarbital in Mexico, that you understood that you were

breaking the law. And it is a sophisticated, expensive and

lengthy process which you undertook, to travel for five days

to obtain the drug and return to Australia.

As I hope I have outlined, you were not under the same sort of

emotional pressure as is evident in cases where a husband, or

child, or wife, assists their spouse or parent to commit

suicide.  You were not caring for Mr Ward on a day-to-day

basis.  In fact, really, apart from his elderly neighbours

popping in to see him twice a day, nobody was caring for him

because he didn't need that type of care.

You had had a long relationship with him, but, as I say, it

could not be described as a close friendship, and you said to

the police that you felt obliged to visit him and be friendly

to him because he had made you the beneficiary under his will.

You were a mature, educated man at the time.  You had had a

long time during which you had the opportunity to think, as I

say, not just in an abstract way, but in a fairly concrete way

about the issues involved in obtaining a drug for Mr Ward to

use to take his own life, and then acutely, from the 14th of

June 2009, you had five days with little to do but contemplate

exactly what you were doing.

And, of course, you had a personal financial interest in the

death.  It is not put as your main motive but I don't think

this matter can be ignored.  It is just not possible in any

setting to ignore such a conflict of interest.  It is also not

irrelevant that at the time you had little in the way of

personal assets.  You had almost no money in the bank and a

credit card debt, so that your net position was that you were

about $12,000 in debt.

In the police interviews you make statements about the will

and your interest under it.  You make statements indicating a

willingness to give Mr Ward's brother and sister money and

statements indicating that if there was any reasonable

challenge to your being the beneficiary under the will, you

would stand aside and not contest it.  You make statements, in

effect, to the effect that you're not interested in the money,

but there is no evidence been put before me on sentence that

you have in fact disclaimed interest under the will.

As I said to the jury in summing-up, this case is not about

general principles or moral views about euthanasia.  It is

about those facts and the application of the law to them. 

However, in considering the criminality of the conduct in this

case, I have found it of some assistance to consider the type

of theoretical legal models that are proposed, for example,

for medically-assisted suicide, and the laws in countries

where medically assisted suicide is possible.  In such

countries and under such models, there are always provisions

to ensure that the power to assist a person wishing to take

their own life is not misused.  There is always provision for

independent medical examination by more than one doctor, and

there would certainly never be a situation allowed by such a

model or such a law, where the decision was made by someone

with a financial interest in the decision.  There could never

be a situation under such a model where suicide was assisted

in the case of a person who had only just begun to suffer from

illness, where that illness had not been diagnosed, where

there was no useful information about its duration, prognosis

or severity.

As I say, this case is about the facts that have been proved

on the evidence and the application of the law in Queensland,

but in a case such as this where a wide range of facts fall

within a broad definition of a crime, I do find that reference

to models of medically-assisted suicide as helpful in

measuring the criminality of the offence you committed.

Suicide is not illegal.  Frank Ward had a right to do whatever

he wished, according to the dictates of his own mind on

grounds that appealed to him, and didn't have to satisfy

anybody else.  And, as you said in your record of interview

with the police, at least at one stage, he had between June

2007 and June 2009, opportunity to assist himself in this

regard, he had opportunity himself to obtain a drug which

would assist him, but he chose not to.

Of course, it is relevant in considering your case that

Mr Ward had a clear intention to take his own life, but that

matter is, indeed comprehended by the nature of the offence

for which I am sentencing you; that is, it is assisting a

suicide.  Were there no intent to suicide, the offence would

be one of unlawful killing.

You were 48 at the time of the offence.  You have no prior

criminal history.  You had your share of vicissitudes of life

in childhood.  Your mother died of a stroke at age 12.  Your

brother suicided when you were in your late 20s, shortly

following the death of your father.

You did well at school and you have apparently done well at

university.  Your middle years, after leaving school, are

largely unaccounted for in the material put before me.  Your

brother says that after school, "Merin emerged without a clear

path to follow."  It seems that you studied at university as a

mature age student and you have worked as a teacher.  You are

still studying at university, a PhD in philosophy.  I have

before me references from two university colleagues who

respect your academic work.

Eighteen testimonials to your character were tendered by your

Counsel.  The people who have given the testimonials

certainly speak highly of you.  I notice that seven of the

testimonials are from your family, and I include in that

definition your de facto spouse and her ex-husband and son.

Apart from family members, only one - Wynne - has known you

for more than ten years.  Four of the references proceed on a

wrong factual basis as to the facts of the matter before me -

Botic, second last paragraph; Ovchinnikova, second last

paragraph (as to intention); Judd, second last paragraph; and

Breen Schipke, page 1 last paragraph, page 2 first paragraph. 

I don't know how these people came to proceed on the

information they had, but I do think it is worthy of note.

Also worthy of note is the fact that during the trial we

listened to around seven hours of recorded interview with the

police.  As I said to your counsel a couple of times during

this matter, if you bothered to count the individual lies,

there would be hundreds.  There is elaborate, elaborate,  

dishonesty over a considerable period of time demonstrated in

these interviews, and I remark on the easy facility with which

you lie in the interviews.  And I note that many of the

references tendered on your behalf mention how honest you are.

It is difficult to reconcile with, as I say, the seven hours

of recorded interviews.

The other thing that is noteworthy from those interviews is

your attitude.  At one point you express the hope that you

don't seem too flippant about matters.  Rather than use

adjectives to describe the attitude you display, I would

probably see it as more relevant to say that the attitude

contains no indication that you understood the reality or

seriousness of what you had done.

The relevance of that, I suppose, is threefold.  One is it is

very difficult for me to believe factual assertions or factual

submissions made by your counsel now based on self-serving

statements in those records of interviews.  One, for example,

was that during the interviews you claimed you felt pressure

to assist Mr Ward in June 2009 because he told you if you

didn't help him get the drug to do it in what you describe as

an aesthetic manner, he would use a fish knife to slit his own

throat.  Having watched you say that in the record of

interview a number of different ways, a number of different

times, and in the context of the other untruths in those

interviews, I can't accept that, even on a balance of

probabilities basis on sentencing.

The second matter that the dishonesty is relevant to, is

remorse.  It indicates a lack of remorse.  Assisting suicide

is perhaps an odd crime in relation to the factor of remorse

because many, in fact most, people in the comparable sentences

that have been put before me are not remorseful, because they

have acted out of love and compassion.  Having said that,

most, after they have acted, have notified the police,

co-operated fully with police, and told the truth about what

they have done.  As I say, probably because their

motives are so clear.  And that sort of lack of remorse I

don't think could be taken into account on a sentence for this

charge.  But the dishonesty exhibited over a prolonged period

of time in the records of interview does, I think, indicate a

very relevant lack of remorse on your part.

The third relevance of the dishonesty is that it is not alone.

There is also evidence in the records of interview that you

had been dishonest in what you told the deceased's relatives

about the details of his death.  And the dishonesty with the

police and the dishonesty with the relatives does, I think,

obscure the motives with which you acted, particularly in

circumstances where you were sole beneficiary of the will, and

particularly in a case where your motives are less clear and

less understandable than a case such as The Queen v. Maxwell,

which I'll come to shortly, where a spouse or a child kills

their spouse or parent in circumstances where they have been a

long-term carer with a clear compassionate and altruistic

motive for someone in a hopeless and extreme medical

situation.

Both the Crown and your counsel are agreed that you ought to

receive three years' imprisonment as a head sentence.

The difficulty in sentencing you comes to the time, if any,

which you ought to serve.  In relation to that question, I

will discuss some comparative cases.  The first one is The

Queen v. Maxwell [2003] VSC 278. That was a case where

Mr Maxwell killed his wife who had suffered for years from

very painful, very debilitating cancer.  She weighed 40

kilograms at the time of her death.  She couldn't walk, he had

to carry her to the place she agreed she would like to die.

He'd cared for her himself through this time, and the Court

could clearly see love and compassion as the motives for the

commission of a crime, and could clearly see that Mr Maxwell,

in caring for his wife, had been under great stress and a

prolonged burden every day.  He was sentenced to 18 months

wholly suspended.  That was in Victoria where the maximum

penalty for assisting suicide is five years.  Here, the

maximum penalty for assisting suicide is life imprisonment.

Mr Maxwell co-operated fully with the police and gave an early

indication of a plea. And it is well known that the Courts

offer significant discount on sentences for an early plea,

both because an early plea indicates remorse, and because it

saves costs.  So in considering all these comparative

sentences in fact, I bear in mind that the Court had before

it a case where the defendant had indicated an early plea and

was able to discount accordingly.  The reverse position, of

course, is not true, and you shouldn't think that because you

did not plead guilty but ran to trial, that is taken against

you.  It is simply that in comparing these other sentences

where there was an early plea, one has to understand that that

is a significant mitigating factor which discounts the

sentence.

The same sentence, that is 18 months wholly suspended, was

imposed in a case of Hood [2002] VSC 123. The factual basis

as to motive and burden of care were less compelling than in

Maxwell, although the offender was very young.  The other

factors do apply, though.  It was another Victorian case where

the maximum penalty is five years and there was significant

co-operation and an early plea.

The case of Hood is often quoted in cases on assisting suicide

for these dicta:

"As long ago as 1967 suicide and attempted suicide ceased

to be crimes in Victoria.  However, Parliament retained

an offence of aiding or abetting another person to commit

or attempt to commit suicide.  That offence carries a

maximum penalty of five years' imprisonment.

Accordingly, whilst the law recognises the right of an

individual to take his or her own life, it prohibits the

assisting or encouraging of a person to pursue such a

course of action.  This offence remains on the statute

books because of the importance of human life and its

preservation.  It is a fundamental principle of our

society.  The concept is often encapsulated in the phrase

'the sanctity of human life'.  The law is also designed

to protect a vulnerable person who opts for suicide at a

time when extreme depression from whatever cause may

provoke an irrational and emotional decision by that

person to end their life.  To this extent, the law may be

seen as life affirming and not life denying and directed

at discouraging suicide as a response to the emotional

vicissitudes of life.

The degree of moral blame attributed to a person who

assists or encourages an act of suicide may vary greatly

from case to case.  At one end of the spectrum may be

placed a person who assists or encourages a person to

commit suicide in order to inherit property, or for some

other ulterior motive.  At the other end, there is the

individual who supplies potentially lethal medication to

a terminally-ill person, perhaps a loved one who is in

extreme pain, and who wishes to end that suffering at the

earliest possible opportunity."

I think those principles are renowned as encapsulating much of

what a sentencing Judge must consider in relation to a case

such as yours.  Your counsel referred me to The Queen v.

Pryor.  That is a decision of Hill AJ on 19 December 2005.

That was not an assisted suicide case.  It was described by

the Judge as a mercy killing case.  A woman killed her elderly

demented mother for whom she was caring, and who the evidence

showed was very difficult to care for.  The evidence - and it

was accepted by the sentencing Judge - was that the daughter

loved her mother very much.  The matter did run to trial and

the sentence was 18 months wholly suspended.

The sentence remarks also contain the sentence for assisting

The suicide of that woman's father.  He was at the end of a

Long and hopeless battle with cancer.  He had made two

Previous suicide attempts.  The sentence was 12 months wholly

suspended.

In my view, the facts of that matter contrast with the facts

here, in the sense that the defendant killed, and assisted the

suicide of, her parents, that is family members who she loved

dearly and for whom she had the burden of caring.  Both had

diagnosed, defined, and hopeless illnesses that were

distressing to them and to her, and there were no complicating

factors as to money or dishonesty.

The other case which I find relevant in considering this

matter is Justins [2011] NSWSC 568. Mrs Justins

was tried and convicted of manslaughter of her de facto

husband of some 18 years in circumstances where he was

suffering from quite advanced Alzheimer's disease.  She had

always offered to plead to the offence of assisting suicide

but the Crown wouldn't accept that plea, and, as I say, the

matter ran to trial and she was convicted.  The conviction was

overturned on appeal.  She then did plead to the offence of

assisting suicide and the Crown accepted that.  It is a New

South Wales offence where the maximum penalty is ten years.

The Court sentenced her on the basis that, as I say, she

killed her long-term de facto husband, whom she cared for, who

had a definite and hopeless diagnosis of Alzheimer's disease,

and who the autopsy showed suffered from advanced Alzheimer's

disease.  The basis of the sentencing Judge was that there had

been two previous suicide attempts by her de facto husband.  I

find quite disturbing in that case a factor that, very shortly

before the assisted suicide, the defendant had a solicitor,

who didn't know her husband, and who wasn't told of his

medical condition, prepare a new will under which she

benefitted very substantially in relation to a very big

estate, an estate worth about $2 million.

Nonetheless, the Crown conceded in that case that the sentence

which Ms Justins had already served for manslaughter

adequately reflected the criminality of the offence.  That

sentence had been 22 months of periodic detention with eight

months of parole following that.

In sentencing you, I recognise that I am almost exclusively

concerned with general deterrence.  I also recognise the

principles under section 9(2)(a) of the Penalties and

Sentences Act, that imprisonment ought to be a last resort.

Nonetheless, having regard to the discussion of criminality

earlier in my reasons, and even having regard to all the

factors available to me, that go in mitigation, I cannot see

that a wholly suspended sentence is appropriate.

I sentence you to three years' imprisonment and I set a parole

release date of 15 August 2012.  That's effectively a sentence

to serve six months, less one day, and the one day is really

to reflect the fact that you have spent last night in custody.

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