R v Ratke

[2023] NSWSC 1310

Supreme Court

New South Wales

Medium Neutral Citation:

R v Ratke [2023] NSWSC 1310

Hearing dates:

06 June 2023
29 June 2023
13 October 2023

Date of orders:

03 November 2023

Decision date:

03 November 2023

Jurisdiction:

Common Law - Criminal

Before:

Weinstein J

Decision:

See [138] – [140]

Catchwords:

CRIMINAL LAW – sentencing – murder of wife – domestic violence – plea of guilty – effect of mental health impairment on moral culpability

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18

DH v R [2022] NSWCCA 200

Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; (2010) 273 ALR 324; [2010] NSWCCA 194

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

Gulyas v Western Australia [2007] WASCA 263; (2007) 178 A Crim 539

Liu v R [2023] NSWCCA 30

Luque v R [2017] NSWCCA 226

Markarian v The Queen; (2005) 228 CLR 357; [2005] HCA 25

Muldrock vThe Queen (2011) 244 CLR 120; [2011] HCA 39

R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302

Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247

Category:

Sentence

Parties:

Rex (Crown)
Heinz Ratke (Offender)

Representation:

Counsel:
N Marney (Crown)
R Wilson SC (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s):

2020/356604

Publication restriction:

Nil

JUDGMENT

1. The offender, Heinz Ratke, is before the court for sentence with respect to one count of murder contrary to s 18(1)(a) of the Crimes Act 1900 (the Crimes Act) for which the maximum penalty is life imprisonment and for which there is a standard non-parole period of 20 years. The offender pleaded guilty on 17 February 2023 in the Local Court at Penrith.

2. The victim was the offender’s wife of more than 50 years.

Agreed facts

3. The agreed facts are as follows.

4. The offender was born in 1947 and was 73 years of age at the time of the offence.

5. The deceased victim is Maria Ratke who was born in 1949. She was the wife of the offender and was aged 71 at the time of her death. The offender and the deceased were married for over 50 years. They lived together in the offender’s late mother’s house in the Blue Mountains. The couple had a daughter who died from cancer over 20 years ago at the age of 21. They had no other children.

The murder

6. On about 8 or 9 December 2020, the offender intentionally murdered his wife by stabbing her in the chest with a folding knife multiples times as she lay in her bed.

Conduct after offence

7. At about 7:33 pm on 9 December 2020, the offender called a neighbour, SC, and told him that he was going away over Christmas to help a friend in Taree. He told SC that he had left some items on the fence for him. SC found a black bag hanging on their shared fence which included food items and an envelope with $100 cash and a gift card.

8. On 14 December 2020 the offender called a mechanic, WN, and told him that he had a flat battery. He asked WN if he could attend to jumpstart the car. The offender told WN that he had to pick up “the lady” from Lithgow as she had her cataracts done. At about 4:20 pm that day, WN attended the offender’s house and jumpstarted his car.

The discovery of the offence

9. The deceased’s closest living relatives are her niece SG and nephew, LG, who are her sister’s children. The offender has a cousin, SS.

10. SG kept in regular contact with the deceased and spoke to her for the last time on Sunday 6 December 2020. On 9 December 2020, SG received a message from the deceased’s Facebook Messenger account, which she believed was from the offender because of the style in which it was written. The message stated that there was an issue with the deceased’s mobile phone and a new one would need to be purchased. From 9 December 2020, SG made several unsuccessful attempts to contact the deceased.

11. On 9 December 2020, the offender contacted his cousin SS using Facebook Messenger and sent a picture of the following message:

“I have spent over 52 years making my wife Laff. I have never made her cry. I have loved her always & tried to make her happy. We hardly ever argue – but now I have hurt her badly and since then I have not stopped crying – I just cannot stop crying – I have never hurt her why now?? I am so very very sorry I am – this is not me!! I handle things better – I hoped we would be together forever”. [sic]

12. SS and the offender exchanged further messages that night using Facebook Messenger. The offender sent his cousin the following message:

“Stupid things like pressures which now in retrospect seem pretty. I worked 4 the 7th biggest company in aust. & Pressure was part of the job + I handled it & didn’t bring the probs home..but it became an issue recently that for the last few yrs & yr mum can attest to this that for the last 8 yrs I give my Mrs $100 per week + $100 every 2wks when we go to the club that’s @ $30000 for the last 5yrs I don’t care as long as we got along.. but now it’s Xmas & I gotta give $100 to every dick & his dog that speakers Hungarian for st.nicholas (6th Dec) & another $100 to all the family along with a shit pile of prezzys I just lost it.. up until now my baby used to say my dad It a pussycat but 2day the pussycat lost it & I didn’t drink till after I lost it”. [sic]

13. On Tuesday 15 December 2020 at 9:00 am, SS contacted the police and expressed concern for the welfare of the offender. She told police that she had received a message from the offender in which he had expressed remorse for hurting his wife.

14. At about 9:20 am on the same day, police arrived at the scene and after a short time forced entry through the rear door of the premises. The house was in darkness. The offender was located in the kitchen/dining area of the home. He was unresponsive but breathing with, and had an irregular pulse. Police called an ambulance to attend to the offender. As the offender was being taken out of the premises by ambulance officers, the deceased was located by an ambulance officer in her bed. The sheets were pulled up to her chin. Blood was observed around the neck of the deceased and there was a bloody pillow at the end of the bed.

15. Police found a note on the television in the kitchen/dining area. It appeared to be the same note that was sent to the offender’s cousin earlier on 9 December 2020, but had two additional paragraphs. The second and third paragraphs read:

“Check out how many people have ever heard me argue or be nasty or controlling – my baby used to describe my dad, my dad as a “pussycat” ps 1^st drink in 24 years (doesn’t help).

As I’m drinking thoughts emerge – in all these yrs I’ve never done a selfish act always put my family 1^st - & the first selfish act cost my wife dearly – with an IQ of 134 you would think that I could have been smarter & not made my wife pay 4 my stupidity – I wish I could have my time over I would do it different 4 sure my love of my life has paid the price – I miss her dearly”. [sic]

16. A crime scene was declared. The offender was taken to hospital where he was assessed. He was placed in custody under police guard until 4:30 pm on 16 December 2020. On his release from hospital, he was taken to Katoomba police station.

Mr Ratke’s interview

17. Mr Ratke voluntarily participated in an electronically recorded interview with police. He stated that he and his wife were facing financial difficulties and that the money they had to live on had run out. After they went to bed at about 11:00 pm on 8 December 2020, the deceased told the offender that she was going shopping the next day. The offender said that he then walked to the kitchen and got a knife. He then returned to the bedroom where the lights were off, and he stabbed the deceased in the chest about three times. He heard a groaning noise from the deceased and put his hand over her mouth. The offender left the room after he stopped hearing the groaning noise. When police told the offender that the deceased had at least 16 stab wounds, he expressed shock and disbelief.

18. Mr Ratke said that he left the deceased in the bedroom and went out to the rear of the house. The next morning, he returned to the bedroom and saw the deceased. He felt that she was cold to touch. He placed a pillow over her and pulled up the blankets to keep her warm. He remained in the house and consumed alcohol and various pills with the intent of overdosing. However, he passed out. When he woke up, he resumed drinking. He said that he repeated this pattern for some days.

19. The offender also said that, as an act of self-harm, he made a cut to his left wrist with a knife. The following day he decided to use the carbon monoxide from his car exhaust to end his life. However, he found that the car battery was flat. He then contacted a mechanic and had him attend his home and jump start the car. After ensuring that his car would start, Mr Ratke decided to start drinking again. The next thing that Mr Ratke remembered was waking up in the hospital.

20. The offender was perplexed at his actions and was remorseful and cooperative with police.

Post-mortem examination

21. A post-mortem examination of the deceased was conducted on 17 December 2020. The cause of death was found to be multiple sharp force injuries in the chest.

22. Ms Ratke had the following injuries:

1. No less than 17 sharp force injuries on the anterior surface of the chest centred on and clustered around the midline and within an area of 155 x 140mm. The injuries were up to 14mm in length, a number of which were confined to the subcutaneous tissue of the anterior chest wall;

2. No less than 6 wound tracks in the chest continued into the thoracic cavity with underlying damage of the anterior surfaces of the lungs and retrosternal soft tissues. One wound track continued into the superior pericardial sac and perforated the anterior and posterior walls of the superior aspect of the pulmonary trunk. There was associated haemorrhage within the pericardial sac and left thoracic cavity;

3. Sharp force defence-type injuries were noted on the deceased’s hands; and

4. An 8mm abrasion was noted on the bridge of the deceased’s nose and a small sharp force injury was present on the left temple.

The financial position of the offender and the deceased

23. Police investigated the financial affairs of the offender and the deceased.

The house in which the couple were living

24. The title to the house in which the offender and the deceased were living was still registered in the name of the offender’s mother and her husband. Both had died many years earlier. The council rates notices, sent to the address in the name of the offender’s mother, had been paid in the years since the deaths of his parents, but went into arrears in mid-2020.

Bank Accounts

25. There was no evidence of any bank account held in the offender’s name. As of 9 December 2020, the status of the Commonwealth Bank accounts in the deceased’s name was:

1. Mastercard - $6883 in debit;

2. Netbank saver - $1 in credit (and had been inactive for some years);

3. Smart Access  - $6.45 in debit (due to nil balance with fees applied); and

4. Term deposits:  $0 from Feb 2020.

26. Over the course of 2019 and 2020, the deceased’s Mastercard account became increasingly in debit.  On 24 September 2020 it was used for a transaction at Woolworths which took the balance to more than $500 over the $6000 credit limit. Thereafter the only transactions were interest and late fees.

27. A review of bank statements going back to 2010 showed an amount of $40,000 was invested in a series of term deposit accounts, which were rolled over. Over time, funds were transferred into the Smart Access transaction account. The transaction account showed small cash deposits and frequent small cash withdrawals, as well as electronic funds transfer purchases at businesses such as Aldi and Chemist Warehouse. By February 2020 there were no funds in any term deposit and by the date of the last withdrawal from the Smart Access account on 23 October 2020, that account had a balance of $1.58, before going into debit because of monthly fees.

Cash

28. There was no evidence of any substantial quantities of cash having been saved by the offender and the deceased. Neither was any significant amount of cash found in the house.

The Australian Tax Office

29. There was no evidence of either the deceased or the offender having filed a tax return in the last 20 years.

Centrelink

30. There was no evidence that either the deceased or the offender were in receipt of any government benefit.

31. I pause here to observe that the murder of Ms Ratke was bizarre, senseless and tragic.

Exhibits

32. Before me are four exhibits. Exhibit 1 is a bundle of documents tendered by Mr Marney, who appeared on behalf of the Crown, which includes:-

1. The Notice of Committal;

2. An Amended Charge Certificate signed on 14 February 2023;

3. A Statement of Agreed Facts signed by the offender on 13 February 2023;

4. The offender’s criminal history;

5. The offender’s custodial history;

6. A Victim Impact Statement prepared by the victim’s niece SG, which she read in court; and

7. A medical report of Dr Jacques Ette, Staff Specialist Primary Care at the Justice Health dated 5 May 2023 which also attaches a document titled ‘Justice Health and Forensic Mental Health Network Overview of Services’ and bears the date October 2020.

33. Exhibit 2 is a bundle of documents tendered by the offender that includes:-

1. Two reports of Dr Andrew Ellis, forensic psychiatrist, dated 11 June 2022 and 29 November 2022 together with his curriculum vitae. I observe that Dr Ellis was not required for cross-examination; and

2. A handwritten letter to the Court from Mr Ratke dated 2 June 2023, which was read in court on 6 June 2023 by Mr Wilson SC who appeared on behalf of the offender.

34. Exhibit 3 is a Recommendation for Surgical/Procedural Admission from the Western Sydney Local Health District dated 17 April 2022 which refers to a planned laparoscopic cholecystectomy and intra-operative cholangiogram.

35. Exhibit 4 contains two reports from the Justice Health dated 12 September 2023 and 4 October 2023.

Evidence

36. I will now summarise some of the documents which have been placed before me.

Exhibit 1

37. The Crown sentencing bundle contains information about the offender’s criminal history and movements in custody. The offender has a negligible criminal history. Mr Ratke had some traffic and driving offences for which he received fines and was disqualified from driving. In 1983, he was charged with larceny as a servant for which he was fined and ordered to complete community service.

38. The offender’s custodial history shows that he has been assessed as an elderly man with a history of self-harm. In April 2023, the offender was transferred to Long Bay Hospital. More information about Mr Ratke’s health appears below.

Victim impact statement

39. SG is the niece of the deceased. She prepared a statement which she read in court.

40. SG told the court that Ms Ratke was a beautiful, kind, caring and loving aunt who was adored as a mother and godmother. She said that Ms Ratke was always there for her and her siblings, including when their parents died.

41. SG said that losing Ms Ratke was devastating. They shared many beautiful family moments that will never happen again. SG and her family will never understand why she was murdered.

42. SG said that identifying Ms Ratke’s body was traumatic. She thanked Homicide Victims for its support and compassion.

43. SG’s brother has found the loss extremely hard to deal with, as he has lost his mother figure, aunt and godmother whom he loved dearly. SG’s nephew, who was in Year 11 at the time Ms Ratke died, is also devastated. He cannot come to terms with how someone he loved could do this to another person he loved. He failed Year 12 as he could not focus, and he continues to have nightmares and suffer anxiety. She said that he has withdrawn, which causes the family concern. SG’s niece is also devastated and suffering from anxiety. Ms Ratke missed her niece’s wedding and will miss the birth of her child.

44. The entire family have suffered. They have sought a reason for why this happened, but they will never know. They feel betrayed and hurt. SG says that they are getting on with their lives because they know that is what Ms Ratke would want. They miss Ms Ratke. They continue to love her, and she will be forever in their hearts.

45. On behalf of the community, the court expresses its condolences to Ms Ratke’s extended family. Our community is less, having lost one of our members who gave so much love and who was, in turn, loved so much.

Justice Health reports

46. Justice Health prepared a report in respect of the offender on 5 May 2023. At the sentencing hearing in June 2023, it became clear that some relevant material was not included in the initial report. Since that date, two additional reports have become available. They are dated 12 September 2023 and 4 October 2023, and comprise exhibit 4.

47. In the report of 5 May 2023, it was noted that the offender suffers depression and hypertension, for which he is prescribed medication. In November 2022, a CT scan revealed that the offender had a stable pancreatic head cystic lesion which was benign and did not require surgical intervention at that stage. Diverticula in the sigmoid and descending colon was also found in a CT scan but no cancer was detected. He had mild chronic microvascular ischemic changes. He was reported to be compliant with medication and was independent with activities of daily living. He was provided with prescription glasses, and he was reviewed by an occupational therapist and the Specialised Mental Health Services for older persons. He had a Basic Aged Care Assessment and is prescribed monthly vitamin B12 injections.

48. The report of 12 September 2023 was prepared by Dr Jacques Ette based on Mr Ratke’s electronic medical file. He noted that Mr Ratke was admitted to Blacktown Hospital on 15 April 2022 with dark urine and right upper quadrant pain. A scheduled cholecystectomy was delayed until further investigation had been undertaken to rule out malignancy. Further testing demonstrated gall stones and a pancreatic cyst. No colonic malignancy was found. A colonoscopy was performed at Prince of Wales Hospital (POWH) for positive faecal occult blood test. Mr Ratke was diagnosed with diverticulitis in the sigmoid and the descending colon. No colon cancer was found. On 11 August 2023, the offender had a phone consultation with a surgeon regarding a laparoscopic cholecystectomy, which he declined. After further discussion, it appeared that Mr Ratke was under the misapprehension that the surgery was for hernia repair. After more discussion, Mr Ratke agreed to proceed with the laparoscopic cholecystectomy, but not at Blacktown Hospital. A CT scan of Mr Ratke’s abdomen was ordered. All previous investigation results did not show either colon or pancreatic cancer.

49. The report of 4 October 2023, under the hand of Dr Gary Nicholls, was based on a review of Mr Ratke’s Justice Health records. Dr Nicholls observed that POWH progress notes from 31 August 2023 record Mr Ratke’s history of bowel/colon cancer in the late 1990s and early 2000s. A review colonoscopy performed in April 2023 showed no evidence of colon cancer, but showed colon diverticulitis. Mr Ratke was admitted to Blacktown Hospital in November 2022 with abdominal upper right quadrant pain that was treated as cholecystitis. Dr Links at POWH considered that Mr Ratke does not require a cholecystectomy, but he will be reviewed in late 2023. The most recent CT scan (of the pancreas with contrast study) was performed on 13 September 2023 and showed unchanged ovoid cystic lesions in the head of the pancreas. Those cysts are likely to be benign, fluid-filled lumps in the pancreas referred to as intraductal papillary mucinous neoplasms. Dr Nicholls says that Mr Ratke will continue to be reviewed by the POWH team. He is likely to require further CT scans and reviews. He is to be reviewed in the general/upper gastrointestinal clinic at POWH by the end of 2023.

Exhibit 2

50. Dr Ellis’s reports were admitted without objection, and he was not required for cross-examination. He is a forensic psychiatrist and is the Clinical Director and Medical Superintendent of the Forensic Hospital.

Dr Ellis’s report dated 11 June 2022

51. Dr Ellis was instructed to prepare a report regarding the offender’s police interview and the admissions he made to police, in the context of whether the offender had a mental health impairment. He conducted two clinical interviews with Mr Ratke by audio visual link on 23 March 2022 and 24 May 2022. He was provided with documents including the police facts, transcripts of interviews with police, Justice Health records and a report of Dr Molly Schager, neuropsychologist dated 28 March 2022.

52. Dr Ellis observed that Mr Ratke was aged 74 at the time of his report. He moved to Australia from Austria at age five or six. His family settled in the Villawood and Granville areas where both his parents worked. His father died in 1958 and his mother in 2017. He attended school until age 17. He told Dr Ellis that he excelled at academic subjects and had a good group of friends at school. He denied experiencing any abuse in childhood. After school he completed a course in accountancy and then a computer programming course with IBM. He worked at Norton Manning for 20 years as a building designer and expert witness and then as a technical manager at Australian Paper Manufacturers for eight years. He retired about 30 years ago and did small, cash in hand contract work thereafter, and did not receive a pension.

53. The offender said that he met Ms Ratke at a cultural dance. She was his only significant relationship. They were married for 52 years and had one daughter who died from leukaemia at the age of 21, which the offender told Dr Ellis still affects him. There was no domestic violence in the marriage, which Mr Ratke described as happy. He had one sister who died of cancer about 30 years ago.

54. By the time of the second interview, the offender was about to commence work in the textile area and was sharing a cell. He was having audio-visual contact with his family.

55. Dr Ellis reported that Mr Ratke opened both interviews by saying “I’m tougher than a two-dollar steak”. He was having minor problems with his memory. Mr Ratke reported that he previously had a good memory and an active mind. He said that his concentration was “not too bad” but that he had occasional problems finding the right words to say.

56. Mr Ratke told Dr Ellis that he was walking for exercise but that this was limited by shortness of breath and what he thought might be varicose veins in his left leg. He had variable sleep, ate regular meals and felt that he had lost some weight. The offender reported crying every day, alone, about 4-5 times per day thinking about his wife and how she “didn’t deserve it.” He did not report any suicidal ideation and denied morbid ideation. The offender said that he thinks of the offence and wonders what his wife might be doing if she was alive and that he wished for punishment. He denied any symptoms consistent with hallucinations, delusions, mania, obsessions or compulsions. He denied any self-harm or a family history of psychiatric illness. He had never been admitted to a psychiatric hospital or assessed or treated by a psychiatrist. He denied any psychiatric history prior to the immediate events after the murder of his wife.

57. Dr Ellis noted that the offender had seen a psychiatrist on 23 December 2020 when he did not exhibit any signs of depression or psychosis. It was reported that he might suffer from a mild cognitive impairment and a neuropsychological assessment was recommended. On 3 January 2021, a general practitioner reviewed and recommended Mr Ratke’s discharge from the mental health unit of the gaol.

58. The offender reported a history of tinnitus and recent deafness in his right ear. He reported a diagnosis of pernicious anaemia. He had an appendicectomy in 1958 and surgery with chemotherapy for rectal cancer in 1990. Dr Ellis noted that upon reception to hospital on 15 December 2020, the offender displayed a reduced level of consciousness with a Glasgow Coma Score of 7/15. A mixed overdose of ibuprofen, paracetamol, codeine and morphine was considered. He reported ongoing suicidal ideation. A CT brain scan and neurological examination were reported as normal. The offender had no history of epilepsy, head injury, cranial infection or thyroid disease.

59. The offender is an ex-smoker and ex-drinker, having ceased both about 30 years ago, other than the time immediately after he murdered Ms Ratke. He said that he stopped drinking for his general health and denied ever using cannabis or other illicit drugs. He denied abusing prescription medication.

60. When asked about the offending, Dr Ellis reported that Mr Ratke gave an account consistent with the police facts sheet. He told Dr Ellis that he and his wife were living in the house in which they had resided for 20 years. The couple had used up all their money about two years prior to the offending, had no superannuation, were not claiming the pension and both were performing some cash in hand work. They were able to live in their home because Mr Ratke had inherited it from his mother. He described their financial situation as “worse than bad.” He said that he had avoided collecting the pension because he was worried that he had not been paying tax on his cash in hand work.

61. Mr Ratke managed the couple’s finances. He did not tell Ms Ratke of their situation. He said that as a result of their parlous financial situation, he began to feel an endless pressure in his mind, that he was keeping up a “false front” to others and that he would only get two or three hours of sleep per night. He began to feel sad and in a low mood, and he was becoming increasingly confused and “couldn’t think straight.” He was hoping for a miracle and took no steps to solve their financial situation. He felt embarrassed and ashamed and began to experience suicidal ideas, all of which he kept to himself.

62. On 6 December 2020, Mr Ratke said that he was particularly distressed as it was a Hungarian tradition to buy Christmas presents for many people, and the couple could not afford to pay for presents. He said that he came up with the idea to kill his wife to spare her from their financial problems and to avoid being embarrassed by him and his failings. He formed the idea to kill himself after he killed his wife.

63. Whilst the offender said that he had little memory of what actually happened, he told Dr Ellis that he stabbed his wife and that after she died, he sat and looked at her body. His feelings of depression then became worse. He felt a strong need to punish himself. He began to take prescription medication that was prescribed for his wife, including diabetes medication and painkillers. He drank some of the alcohol in the house and did not expect to wake up. He could not recall leaving money or a note on his neighbour’s fence. When he woke up, he decided to call a mechanic to fix his car with a view to gassing himself in the garage. When he was unable to do this, he continued to drink alcohol and take pills. He could not recall police arriving at his home and finding him, and he had limited memory of the police interviews. He said that he was drowsy from the overdose and in a state of distress. He wished to proceed quickly and punish himself.

64. On examination, Dr Ellis found Mr Ratke to have no serious thought disorder. He had significant difficulty describing his internal emotional experience. His regular crying indicated sadness. Mr Ratke was preoccupied with his financial situation prior to entering custody and was too distressed to talk about the allegations against him. He was perplexed by his motives at the time he committed the offence. He denied current suicidal ideation or intent, was oriented generally to place, time, date and person. He showed a satisfactory amount of word generation.

65. It was Dr Ellis’s opinion that the offender did not have a substance use disorder or a long-term disorder of personality. Based on an unremarkable neuropsychological evaluation and a normal brain scan, he was not of the view that Mr Ratke had a neurocognitive disorder or psychotic illness. Dr Ellis believed that Mr Ratke’s minor deficits in cognitive performance could be consistent with a depressive illness. Based on evidence that Mr Ratke’s financial situation was commensurate to his concerns, Dr Ellis was of the view that his pre-occupation with financial matters was likely related to the negative cognitions associated with a depressive illness, rather than a delusional belief in a lack of finances. In Dr Ellis’s opinion, the offender suffered from a major depressive episode but did not openly present with typical depressive cognitions. He tended instead to mask them or not report them unless he was questioned in detail. In Dr Ellis’s view, the offender was suffering from a mental health impairment at the time of the offending, being a major depressive illness characterised by a severe disturbance of mood. At the time of the offence, Mr Ratke was not on treatment for this condition, and his presentation on arrest was consistent with a major depressive illness, and intoxication following a suicide attempt by overdose.

66. In Dr Ellis’s view, the offender was likely suffering from a depressed mood with attendant negative cognitions that his financial situation was unsolvable. Dr Ellis observed that major depression can be considered a “mental health impairment” as it is a clinically significant condition for diagnostic purposes in all major classifications of mental disorder. The disorder in the offender’s case impaired his thought by an overvalued preoccupation with finances and poor concentration and problem-solving ability. His mood was impaired by a depressed and negative outlook with suicidal ideas. Dr Ellis noted that major depression is an ongoing disorder, and has temporary exacerbations. The offender’s emotional well-being, judgement and behaviour were impaired, which was evidenced by his failure to pursue simple remedies to his financial situation, and by dwelling on negative emotions and engaging in suicidal attempts.

67. Mr Ratke reported an intent to kill his wife to spare her from an impecunious life and the indignity of their situation. Dr Ellis said that Mr Ratke knew that stabbing a person with a knife would kill that person, and he therefore knew the nature and quality of this act. His written statements demonstrate that he knew what he did was wrong, but that his depressive state impaired his ability to reflect on the decision to stab his wife. A question arises as to whether or not Mr Ratke’s depressive state impaired his ability to reflect with composure on the decision to stab his wife. From the available material, Dr Ellis says that the offender's mental state and financial situation had deteriorated from a previous level of good function. He had previously worked and managed his finances. He reported a previous good relationship with his wife, with no violence and few disputes which were easily resolved. Although he was not delusional about his finances, the offender showed a remarkably limited ability to think clearly about how he could resolve his financial situation. Dr Ellis was of the view that Mr Ratke’s depressed mood likely contributed to suicidal ideas, and limited his ability to think clearly about alternative methods of dealing with these problems other than by a homicide-suicide. It was Dr Ellis’s opinion that Mr Ratke’s depressed mood likely heightened his irritation about buying Christmas presents to the point of anger and despair such that he was not considering alternatives or seeking support from others. Engaging in suicide attempts in the days after stabbing his wife indicated poor emotional control and a reduced ability to reflect on decisions. On balance, Dr Ellis considered that the offender’s depressed mood state likely impaired his ability to consider his actions with reflection and composure.

68. On the basis of Mr Ratke’s history of abnormal mental state before the event and his diagnosis with depressive symptoms after the event, Dr Ellis was of the view that a defence of mental health impairment was open to Mr Ratke. At the time of the offence, Mr Ratke was suffering from untreated depression. This disorder manifests with disturbed mood, poor concentration and negative cognitions, which were likely active at the time the offence was committed. Fundamental mental processes were impaired, and it is likely that Mr Ratke’s understanding of events was clouded by depressive beliefs and his judgement was similarly impaired. He made no attempt to hide his actions.

69. Dr Ellis believed that the offender might respond to antidepressant treatment and would benefit from psychological support to assist with ongoing symptoms of depression including insomnia, depressed mood, reduced concentration and reduced appetite. It was Dr Ellis’s view that the main consideration for Mr Ratke’s prognosis was his ability to deal with the grief and guilt surrounding his actions. Treating his mental state may lead to greater insight into his actions but he should be observed for the risk of suicide, perhaps more so early in recovery.

70. It was Dr Ellis’s opinion that Mr Ratke’s major depressive illness was a significant contribution to his motivation and would have affected his ability to exercise self-control and appreciate the consequences of his actions at the time. He intended to kill himself immediately after the murder and attempted to do so without success.

71. Dr Ellis observed that whilst the condition of major depression is relatively common in the custodial setting, and treatment with anti-depressants is available, psychological treatments are relatively uncommon. Mr Ratke’s age and physical state may preclude him from participating in a range of activities available to prisoners and he may be more vulnerable to exploitation due to his age and physical health. If his depression was not treated, then his insight was unlikely to change. There is a risk of further suicidal ideation in persons who gain greater mental clarity about their actions.

72. Mr Ratke expressed significant remorse for his actions. It was Dr Ellis’s opinion that given Mr Ratke’s age, no recorded history of violence, no recorded history of significant criminal behaviour, no significant substance use problems and no prior breach of conditional release, his risk of re-offending would be in the low category. If he were to re-enter a romantic relationship and once again suffer a depressive illness, the risk of re-offending would have to be re-evaluated.

Dr Ellis’s report dated 29 November 2022

73. Dr Ellis reported on 29 November 2022 after interviewing Mr Ratke at Long Bay Correctional Centre on 2 November 2022 for 2 hours. He was provided with several statements, Justice Health records and two reports of Professor David Greenberg, forensic psychiatrist, dated 4 October 2022 and 9 November 2022.

74. The offender had moved to Long Bay six weeks prior to assessment and was in a shared cell. He continued to have contact with family members by audio-visual link. He had seen a psychiatrist on the morning of the assessment and was advised that he was to start medication for depression. He was not working. He was awaiting surgery for what he thought was cancer.

75. The offender told Dr Ellis that he could not get his emotional state out of his mind. He did not wish to tell people about how he was feeling because he did not want to be on medication and appear mentally frail. He was getting about four hours of sleep per night but found it difficult to sleep as he thought about what he had done. He reported crying 20 times a day. Until recently he had never felt despair, even about the death of his daughter.

76. Mr Ratke reported morbid thoughts about both his wife and daughter which he was previously able to keep at bay by keeping busy. He was no longer able to do this. He reported good concentration whilst reading and watching television. He had occasional memory lapses which did not cause functional problems. He said that his mood was very sad thinking about his wife, not himself. He told Dr Ellis that he could not come to grips with what he had done and that he could not escape thoughts of the offence. He reported that he had not been suicidal since the time of the offence. He re-iterated that he had an excellent relationship with his wife and that he was sorry for what he did. He denied symptoms consistent with hallucinations, delusions, mania, obsessions or compulsions.

77. Dr Ellis noted that Dr Greenberg’s reports included a provisional diagnosis made by a psychiatrist soon after Mr Ratke’s arrest of an adjustment disorder with depressed mood and narcissistic personality traits (during a challenging interview). He noted that Mr Ratke refused treatment with Dr Andrew Watt, forensic psychiatrist, on 1 August 2022. Dr Ellis reviewed statements of relatives and neighbours who had known the offender and his wife over a long period of time. Mr Ratke was vaccinated for COVID-19 and contracted the virus in January 2022. In April 2022, he discharged himself from Blacktown Hospital against medical advice.

78. The offender provided an account of the time surrounding the offence that remained consistent with the police facts sheet. Mr Ratke told Dr Ellis that he was depressed for a long time, probably months, before he murdered his wife. He was not thinking clearly, his sleep was poor and he was focused on one thing – trying to work out how his wife would not find out about their financial situation. He did not want his wife’s opinion of him to change. He told no one about his dilemma, his depression or his insomnia. He had been determined not to kill himself, because this would leave his wife out on the street and even more destitute.

79. Mr Ratke felt anger, but directed it toward himself. He said that he was not angry at his wife. She had done nothing wrong. He was scared that she would find out about their financial circumstances. Mr Ratke said that the day he chose to kill his wife was just before Hungarian Christmas, which he described as “D-Day”, as they would not be able to afford to give presents. He went to bed first but could not sleep. His wife came to bed later. He waited for Ms Ratke to fall asleep before stabbing her. He believed that she would not feel anything if he did this. He thought that he stabbed her three times aiming for her heart and only became aware that he stabbed her 16 times during the police interviews. After he murdered her, his suicidal ideas became more prominent.

80. Mr Ratke completed a standardised personality function questionnaire. Dr Ellis reported that Mr Ratke’s answers indicated statistically significant elevated responses to personality domains of callousness, eccentricity, grandiosity, impulsivity, perseveration and risk taking. Another standardised questionnaire was completed that revealed an above average response to narcissism. The offender’s pattern of responding was consistent with people who tend to be restrained and well socialised, but who lack insight as to how others perceive them and are rigid in how they respond.

81. Dr Ellis considered the psychiatric explanation of Mr Ratke’s report of depressed mood. One consideration was a transient depressed mood state such as an adjustment disorder with depressed mood. A longer-term state of depressed mood, with attendant other symptoms in sufficient number and severity would be classed as a major depressive episode. The determination of the offender’s mood state at the time of offending rested largely on the offender’s self-report. The extreme nature of the offence itself, the serious suicide attempt immediately afterwards, and the withdrawal from usual social events were important markers that a change in mental state occurred in the months before the offence.

73. Dr Ellis remained of the view that a major depressive disorder was the most likely explanation for the significant change in function and change in behaviour that occurred. The change in function appeared to have occurred over a longer period of time and contributed to Mr Ratke’s problems, rather than him reacting to a new stressor. Instead it was likely that his morbid thinking contributed to his financial situation by not addressing it directly. In Dr Ellis’s view, the offender’s narcissistic personality style likely makes his presentation atypical. Depression can be difficult to diagnose on a cross sectional review. He agreed that the offender’s major depression symptoms are not at the severe end and may not be easily observed by clinicians. His refusal of medical care, when in the past he has had treatment for cancer, was concerning. This may be a form of self-neglect or self-harm and a change from previous function, and is one reason to refer the offender back to psychiatric care. Dr Ellis was of the view that criteria for a major depressive episode are met but the episode was not the most serious in terms of symptoms and type.

74. In Dr Ellis’s opinion, Mr Ratke suffered from a mental health impairment, but his revised diagnosis is at minimum, an adjustment disorder with depressed mood. It is more likely a major depressive illness plus narcissistic personality traits. Although Dr Ellis revised his opinion with respect to diagnosis, he continued to be of the view that a major depressive episode was the most likely explanation for the offender's behaviour and that the impairment he experienced at the time of offending was clinically substantial.

The offender’s letter to the court

84. In a handwritten letter, read in court by Mr Wilson on 6 June 2023, Mr Ratke said that he had great difficulty in expressing the sadness and sorrow he feels daily, as well as the shame for what he has done. He said that he lives with the constant reminder of the fear that his wife must have experienced in wondering what was happening to her at the hands of the person she trusted most. Mr Ratke said that he hurt the person that loved him the most and whom he loved in return. He said that violence and mistrust were never an issue in their 52 years of marriage. Mr Ratke said that he understands and agrees with his wife’s family’s hurt and anger. He said that he can never explain or excuse his actions and that he is deeply sorry, sad and ashamed for his actions which his wife did not deserve.

Objective seriousness

85. The offending is objectively serious. It is also bizarre, senseless, strange and tragic. After more than 50 years of marriage, which was by all accounts a happy one, the offender stabbed his wife at least 17 times when she was asleep in bed with the intention of killing her. Some of her wounds were defensive, which indicates that she was aware of being attacked by the person she loved and trusted most. The offender’s motive was to spare his wife from living in penury because of their significant financial difficulties, about which she had no idea.

86. The Crown submitted that the offending was at the mid-range for murder offences taking into account the aggravating features pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) which are present, such as premeditation and the fact that this is domestic violence offending.

87. Mr Wilson submitted that the offending sat at below the mid-range if the Court takes into account that the offender was mentally impaired at the time of the offence, but at the mid-range if the Court did not take into account his mental impairment in determining objective seriousness.

88. The following aggravating factors are present. The offending was pre-meditated and there was an intent to kill. There was some planning, although the Crown accepted that it was neither sophisticated nor substantial. The offender purposefully and deliberately armed himself with a weapon – a knife – which he used repeatedly to murder his wife in her own home. It is the epitome of domestic violence offending, although there was no history of domestic violence. The Crown agreed that this case was very different to Hamid v R (2006) 164 A Crim R 179; [2006] NSWCCA 302. In the present case, the act of domestic violence was isolated. It was not committed in the context of an abusive or controlling relationship. In my opinion, the fact that the offence can be categorised as domestic violence offending adds nothing to the assessment of objective seriousness.

89. In my view, the offending was most significantly aggravated by the breach of mutual trust inherent in a relationship such as the marriage between the offender and his wife, which Mr Wilson conceded called for a degree of general deterrence. Mr Ratke’s comments to Dr Ellis, to the effect that his wife must have been terrified that the person she loved and trusted most was stabbing her, is the essence of this aggravation. Mr Wilson submitted that the fact that the offence was committed in the deceased’s home would add little to the criminality. In my opinion, it is closely tied into the breach of trust associated with the marriage, as she was in the apparent safety of the marital home at the time of the offending.

90. I observe that there is no obligation on a court to indicate where on a notional scale of objective seriousness the offending lies.

91. In DH v R [2022] NSWCCA 200, Yehia J said at [58] – [60]:-

“[58] Some degree of confusion remains as to whether a sentencing judge is obliged to indicate “where on the scale of seriousness each offence falls” when dealing with an offence which carries a standard non-parole period. The applicant submitted that the sentencing judge was obliged to utilise the concept of mid- range offending [emphasis added] and assess where on the scale of seriousness the offending for the offences which carried a standard non-parole period lay.

[59] To be clear, there is no such obligation or requirement. In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) at [29] the High Court said that the standard non-parole period legislation:

“is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formulation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”.

[60] The assessment of objective seriousness of an offence is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence: Zreika v R [2012] NSWCCA 44 at [46]; R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118. A sentencing judge is required to identify all the factors relevant to the objective seriousness of an offence but is not required to nominate a point on the scale of seriousness by reference to a notional mid-point. The use of descriptors such as “low end of the middle of the range”, “upper end of the middle of the range” or, “just below or above the midpoint” add nothing of value to the process of instinctive synthesis and the determination of a proportionate sentence.” (endnote omitted) [emphasis in original]

92. In deference to counsels’ submissions which focussed on the factors relevant to objective seriousness, but made specific submissions about a notional range, I will make a finding on a notional scale.

93. A question arises as to whether or not Mr Ratke’s mental illness should be included in the determination of objective gravity. Mr Wilson submitted that I should do so, as there was a causal connection between Mr Ratke’s mental state at the time of the offending and the offending.

94. In Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247, Johnson J said at [112]:-

“In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence:Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J).”

95. More recently, in DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156, Beech-Jones CJ at CL, N Adams J and Cavanagh J definitively dealt with the concepts of both objective seriousness and moral culpability and their interaction. The Court said at [95] – [96]:-

“[95] In relation to moral culpability, it has long been accepted that “[w]here the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced” (Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]) with potential consequential effects upon the weight to be afforded to the various sentencing factors, including denunciation and general deterrence. This form of connection between the offence and its commission might be described as “a” causal connection, but it need not be the direct or precipitating cause (see Moiler v R [2021] NSWCCA 73 at [59] per Button J with whom Basten JA and Davies J agreed) (emphasis added).

[96] It follows that an offender’s mental impairment is a matter that can affect both an assessment of moral culpability and objective seriousness. However, while a mental impairment “may” affect an assessment of the objective seriousness of an offence it will not necessarily do so, even if it is said that there is “a” causal connection between the impairment and the offence. The critical factors are the nature of the impairment, the nature and circumstances of the offence, and the degree of connection between the former and the latter. The most obvious such circumstance is where the mental impairment is effectively a constituent element of the crime, such as manslaughter involving a substantial impairment within the meaning of s 23A of the Crimes Act. Another example may be where an offender damaged property during a period of psychosis or while suffering delusions but in circumstances that fall short of that which might establish a mental illness defence. In such a case, it could be said that the objective seriousness of the offending was reduced perhaps substantially. Such an offence would not be premediated or planned, and the offender would not have sought or derived any advantage from their offending or possessed any malice in doing do. On the other hand, where an offender suffered from depression that impaired their decision making, it is very difficult to accept that the objective seriousness of a sexual assault they committed is somehow reduced even though it might be said that their depression materially contributed to their inability to overcome their own impulse to commit the offence. Such circumstances might warrant a reduction in their moral culpability which would in turn warrant further consideration be given to the weight attached to various sentencing factors, although it would not necessarily result in a reduction in their sentence.”

96. In the present case, I have concluded that Mr Ratke’s mental illness ought not to inform the question of objective seriousness. Rather, I will take it into account when determining his moral culpability. Here, the nature of Mr Ratke’s mental health impairment was depression. He was apparently functioning in mostly an otherwise normal fashion in the time leading up to the murder. He was able to plan the murder of his wife. He understood, on Dr Ellis’s evidence, the impact of his actions, i.e., he knew that stabbing a person with a knife would kill that person. He knew the nature and quality of that act. Whilst I accept that the depression impaired his decision making, I do not find that it materially contributed to his inability to overcome the impulse to commit the offence, which he knew to be wrong. I accept, however, that Mr Ratke’s depression affected his ability to appreciate the consequences of his actions at the time of the offending.

97. I have taken into account the legislative guideposts of the maximum penalty and the standard non-parole period. In my opinion the offending falls at somewhere approaching the mid-range of objective seriousness. However, as will shortly be seen, I am satisfied that the offender’s moral culpability is reduced given the co-relationship between his mental health issues and the commission of the offence.

Subjective factors

Plea of Guilty

98. The offender pleaded guilty whilst the matter was still before the Local Court. It is agreed that the offender is entitled to a 25% discount for the utilitarian value of his early plea of guilty. Accordingly, the sentence that I will impose will reflect that discount.

Prior Criminal History

99. The Crown accepts that the offender’s prior criminal history is so insignificant that I may proceed to sentence on the basis that this is Mr Ratke’s first time before the courts, and that he is therefore entitled to some leniency. The Crown also accepts, properly, that prior to the offending Mr Ratke was a person of good character.

Remorse

100. The Crown accepted that I could find that Mr Ratke is remorseful.

101. There was initial remorse shown in the messages that Mr Ratke sent his cousin soon after the murder. Thereafter he made a full confession to police in which he expressed remorse. Further expressions of remorse were made to Dr Ellis in structured interview settings. He pleaded guilty at the first available opportunity, which is evidence of contrition. Finally, there is Mr Ratke’s letter of remorse and regret read out by Mr Wilson in the proceedings.

102. Mr Ratke has not spoken in precisely the statutory language of s 21A(3)(i) of the Sentencing Act. That is unsurprising. He is not a lawyer and his insight is still developing. Hopefully with treatment for his depression, it will further develop.

103. In my opinion, taking into account all of the evidence, I accept that Mr Ratke has accepted responsibility for his offending and has acknowledged the harm he has caused so that the mitigating factor in section 21A (3)(i) is made out.

Time in custody

104. The offender has been in custody since 16 December 2020. It is agreed that the sentence ought to be backdated to commence from this date.

Mental health and moral culpability

105. That the offender was suffering from a mental health impairment at the time of the offending cannot, on the evidence, be disputed. I accept that he was likely suffering from a major depressive illness with narcissistic personality traits.

106. Mr Wilson submitted that the offender’s mental health impairment explains troubling and inexplicable aspects of the case, including how a previously functional and responsible person could allow his financial affairs to become so dire without seeking any help or taking basic steps to address it, and how a previously non-violent and loving husband could decide that the solution to the couple’s financial difficulties was murder and suicide. He submitted that Mr Ratke was paralysed by his depression and did nothing in the months before to fix the couple’s finances, which may have been contributed to by his narcissistic personality traits. By December 2020, Mr Wilson submitted that Mr Ratke was in a deep hole of depression and unable to think clearly, other than to act on his idea to kill his wife.

107. Mr Marney submitted that these facts were not dissimilar to other usual types of domestic violence offences. He accepted that Mr Ratke’s mental illness precluded him from doing something about his financial position, but he submitted that the offender’s mental health impairment was not so significant that it stopped him from functioning on a daily basis.

108. In Mr Wilson’s submission, adopting the well-known principles articulated by McClellan CJ at CL in Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; (2010) 273 ALR 324; [2010] NSWCCA 194 (De La Rosa) [177], the relevance of the offender’s mental health impairment on sentence is as follows.

Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.

109. Mr Wilson submitted that although Mr Ratke was not substantially impaired in a legal sense, his moral culpability was significantly reduced. The Crown accepted that Mr Ratke’s moral culpability was reduced, but he submitted that it was not by much. In particular, the Crown submitted that taking into account the aggravating features of the offending, any reduction in moral culpability would be limited.

110. In my opinion, Mr Ratke’s mental health impairment did not cause him to offend. However, as has been elsewhere noted, the language of the common law and its interaction with concepts relating to mental health is often unhelpful. In Luque v R [2017] NSWCCA 226, Hamill J said at [114]:-

“…a sentencing Judge dealing with evidence of an offender’s mental condition or intellectual impairment ought not to approach the task in an unduly technical or restrictive way. The issue to be determined is not the same as deciding the issue of causation in a civil case. The issue is whether the fact of the disorder mitigates the punishment that ought to be visited upon the offender. In one respect, this involves an assessment of whether the moral culpability of an offender is reduced because their mental condition contributed directly or indirectly to the commission of the offence. In other respects, the impact of an offender’s mental condition is not conditional upon any link (causative or otherwise) between the condition and the offending. For example, the condition may mean that the offender is not an appropriate vehicle for a sentence containing a large component of general (or specific) deterrence. Further, incarceration may be more onerous as a result of an offender’s difficulties. Those matters do not require the judge to find any link or connection between the condition and the commission of the crimes.”

111. In this case there is a clear association or nexus with the offender’s mental health impairment at the time of the offending and the offending itself which amounts to - at least - an indirect material contribution between them. As a result, Mr Ratke was unable to make choices in the same way as an average person at the time of the offending. In my opinion, these factors reduce Mr Ratke’s moral culpability, which is a matter that I will synthesise on sentence.

It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.

112. Mr Wilson submitted that this factor applies, to an extent, in that the offender is not as an appropriate vehicle for general deterrence as someone who was mentally well and stable. He did not suggest it had no role in this sentence.

113. That general deterrence and denunciation have a role to play when the offending is so serious is axiomatic. It clearly has a role to play in murder and domestic violence offending. The Crown rightly submitted that the community expects there to be punishment for crimes of this nature.

112. However, being in mind the offender’s mental health impairment, in my opinion general deterrence has less of a role to play and is moderated in this sentence.

It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person, the length of the prison term or the conditions under which it is served may be reduced.

115. There is no evidence with respect to this factor. I deal with Mr Ratke’s age and health below.

It may reduce or eliminate the significance of specific deterrence.

116. Mr Wilson submitted that this factor, in combination with the offender’s likely age upon release, would result in a significantly reduced need for specific deterrence. I deal with this below.

Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public.

117. There is no suggestion in the evidence, and no submissions were made, that because of Mr Ratke’s mental illness, he is more of a danger to the community.

Personal Deterrence and Prospects of Rehabilitation

118. To all intents and purposes, the offender has no criminal history. Nothing in the evidence suggests anything but that the offender’s prospects of rehabilitation are good and that he is very unlikely to re-offend.

119. In my opinion, specific deterrence has a very limited role to play in this sentence.

The offender’s age and health/Hardship in custody

120. The offender has recently turned 76 years of age. His age and health are closely related with whether or not he will experience undue hardship whilst in custody.

121. The Crown accepted that the offender will find the custodial environment difficult because of his age, but he submitted that the evidence does not establish that he will be unduly disadvantaged by his age, i.e. more than anyone else his age who has been placed in custody. He relied on the judgment of Campbell J, with whom Adamson JA and McNaughton J agreed in Liu v R [2023] NSWCCA 30 (Liu). In that case his Honour applied the well-known principles set out by Steytler P in Gulyas v Western Australia [2007] WASCA 263; (2007) 178 A Crim 539 at [54]. Mr Wilson also relies on Liu, and he acknowledged that the impact of advanced age on sentencing is subject to the principle of proportionality.

122. I cannot accept the Crown’s submission that the evidence in this case does not establish that Mr Ratke will not be unduly disadvantaged on account of his age. Some persons have excellent health as they grow older. Others have minor complaints as they age. Here the evidence discloses that Mr Ratke has both mental and physical ailments – not necessarily age-related - that are bound to impact upon his time in custody. His depression is untreated, and Dr Ellis’s unchallenged opinion, which I accept, is that Mr Ratke will be unlikely to have access to psychological treatment in the custodial environment. Furthermore, there is evidence that he has diverticulitis, and that he will require monitoring and medical treatment for the foreseeable future. These are matters that I propose to consider in my determination of whether special circumstances exist.

123. I also observe that bearing in mind Mr Ratke’s age, there is every possibility that he will die whilst in custody.

Covid-19

124. The Court accepts that the existence of the pandemic whilst the offender was in custody, in particular in the period from December 2020 to about mid-2022, is relevant to the assessment of an appropriate sentence. During that period, conditions in custody were harsher.

Life Sentence

125. The Crown did not submit that a life sentence is called for in the circumstances of this case. Taking into account the circumstances of the offence and the offender, I am not satisfied pursuant to s 61(1) of the Sentencing Act that the offender’s culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence.

Special Circumstances

126. The Crown accepts that sentencing courts have a wide discretion when finding special circumstances, but he submitted that Mr Ratke does not require a reduced period of supervision on parole.

127. The offence carries a standard non-parole period of 20 years imprisonment. I observe that this is neither a starting point nor an end point at arriving at an appropriate and proportionate sentence. Rather, I have had regard to all relevant factors including the legislative guideposts of the maximum penalty and the standard non-parole period.

128. Given the terms of s 54B(3) of the Sentencing Act, I indicate that my reasons for deviating from the standard non-parole period are the special circumstances that I find, that is the reduction in the offender’s moral culpability, the fact that this is the offender’s first time in custody, the offender’s advanced age and questionable mental and physical health and the need for extended supervision with respect to the management of his likely accommodation requirements in light of his age, and his physical and mental health. I have deviated to a ratio of 63.7% because of special circumstances.

129. I observe that, to the extent that the Crown submitted that I should avoid overweighing or double counting when dealing with special circumstances, factors may be relevant to both the total sentence and the length of the non-parole period. In Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 at 531, Mason CJ and McHugh J said:-

“Once this is accepted, it follows that the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.”

130. I find special circumstances for the reasons stated.

Threshold

131. Having considered all possible alternatives, I am satisfied that the s 5 threshold of the Sentencing Act has been crossed. Due to the seriousness of the offending, I find that no penalty other than imprisonment is appropriate. No submissions were put otherwise.

Sentence

132. I have taken into account the various purposes of sentencing under s 3A of the Sentencing Act. They include ensuring an offender is punished for their conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for their actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offence and this particular offender highlight how the various purposes of sentencing pull in competing directions.

133. As the High Court said of s 3A in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [20]:

“The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.”

134. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of the offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non-parole period, and the factors referred to in s 21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances: Markarian v The Queen; (2005) 228 CLR 357; [2005] HCA 25.

135. As I have said, in determining an appropriate sentence I have kept in mind the legislative guideposts of the maximum penalty and standard non-parole period for an offence of this kind.

136. I intend to proceed to sentence the offender by way of a term of full-time imprisonment. Taking all matters into account, as I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the appropriate sentence in the quantitative sense. Having considered all of the matters I have referred to in this sentence judgment, I impose a sentence of imprisonment of 17 years and 3 months after a discount of 25% for the early plea of guilty. Without the discount, the sentence would have been 23 years.

Orders

137. Mr Ratke, please stand.

138. I convict you of murder contrary to s 18(1)(a) of the Crimes Act.

139. I sentence you to a term of imprisonment consisting of a non-parole period of 11 years commencing from 16 December 2020, and a head sentence of 17 years and 3 months which expires on 15 March 2038. The sentence has been backdated to 16 December 2020. You will be eligible for release to parole on 15 December 2031. This term has been reduced by a discount of 25 percent for your plea of guilty. Your head sentence would otherwise have been 23 years.

140. Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), you are advised of the existence of that Act and of its application to the offence of which you have been convicted. Your legal representatives are directed to advise you of the implications of those matters to you.

141. Mr Ratke, do you understand the orders that I have made?

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Decision last updated: 03 November 2023