R v Woutersz (No 2)
[2018] ACTSC 44
•28 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Woutersz (No 2) |
Citation: | [2018] ACTSC 44 |
Hearing Dates: | 9 October, 8 December 2017 |
DecisionDate: | 28 February 2018 |
Before: | Penfold J |
Decision: | 1. The offender is convicted of manslaughter, and sentenced to 9 years and 9 months imprisonment backdated to 17 October 2014. 2. A non-parole period of 5 years is set, to run from 17 October 2014 to 16 October 2019. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – plea of guilty to manslaughter by reason of diminished responsibility – offender “very unwell” at time of killing – role of drug-taking in producing acute episode of mental illness especially relevant to specific deterrence – general deterrence not significant having regard to abnormality of mind – no evidence that prison term would weigh more heavily than on normal person, or would have an adverse effect on offender’s mental health. |
Legislation Cited: | Crimes Act 1900 (ACT), ss 14, 15 |
Cases Cited: | R v Singh[1999] ACTSC 66; 154 ACTR 93 R v Blacklidge (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Grove and Ireland JJ, 12 December 1995). R v Woutersz [2018] ACTSC 36 |
Parties: | The Queen (Crown) Gabriela Woutersz (Offender) |
Representation: | Counsel Mr S Drumgold (Crown) Mr K Archer (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 73 of 2015 |
The offence
Gabriela Woutersz has pleaded guilty under s 14 of the Crimes Act 1900 (ACT) to the manslaughter of her mother, Cheryl Woutersz, an offence which under s 15 of the Crimes Act carries a maximum penalty of 20 years imprisonment.
The incident
The circumstances in which Ms Woutersz killed her mother are described in some detail in a judgment (R v Woutersz [2018] ACTSC 36) which provides reasons for several findings of fact and law that have had to be made for the purpose of this sentencing.
The judgment reflects an agreed statement of facts, but also refers to some other material taken from the evidence given in Ms Woutersz’ 2016 trial for murder.
In short, Ms Woutersz killed her mother during an acute psychotic episode reflecting an underlying mental illness the course of which was influenced by Ms Woutersz’ heavy use of illicit drugs over several years preceding the killing.
The circumstances leading up to the killing are described in more detail in the judgment I have mentioned, but the background can be summarised quickly.
For several months before the killing, Ms Woutersz had been working on and off as a prostitute in Perth, and apparently using Ice (methylamphetamine) in large quantities. She appeared at that stage to have some mental health difficulties, and had seen mental health professionals in Perth.
She returned to Canberra on 13 October 2014 after a falling out with relatives with whom she had been staying in Perth. Arriving in Canberra, she caught a taxi to the home of an uncle who lived in Calwell and knocked on the windows, causing them to call police. Police arrived at the Calwell house and found Ms Woutersz outside. Her uncle took her in and she slept there that night. She was described as "not in a good place at all".
In the morning, Ms Woutersz was still distant. Her father came to collect her, but she was abrupt, refused a hug or other physical contact from him, and said that her parents were not her real parents. Her father declined her request to take her to a women's refuge, but agreed to take her to hospital.
Just after 12.30 pm, her father dropped Ms Woutersz at Canberra Hospital, where she complained of depression and bulimia and asked to be admitted.
Ms Woutersz told a mental health nurse that she was bored and said she wanted to be admitted to hospital. Hospital records note that she rejected various community-based options. When the nurse told Ms Woutersz that needing to be looked after was not a reason for a hospital admission, she abused the nurse. Ms Woutersz was refused admission to hospital and told to go away, but she stayed in the hospital waiting room overnight.
The Crown submitted that in the CCTV footage from the hospital waiting room, Ms Woutersz "does not look like she is having a schizophrenic episode", but the Crown did not refer to evidence of what a person having a schizophrenic episode would be expected to look like.
I have looked briefly at the CCTV footage from the hospital waiting room. Ms Woutersz seems to spend much of her roughly 20 hours in the waiting room either curled up in a chair or lying on a couch, in each case wrapped in a blanket.
My assessment is that Ms Woutersz' behaviour does not look particularly “normal”, but it might not be particularly abnormal in terms of the common behaviour of a person spending an extended period in a hospital waiting room. On the other hand, her behaviour does not in any respect fit the description given by Professor McGregor, one of the expert witnesses at trial, of the difficulties caused at the emergency departments of Australian hospitals by the presence of "highly agitated, psychotic and violent Ice users” who “will often require five or more staff to be restrained and sedated".
The next morning, Ms Woutersz left the hospital emergency department around 9.00 am. Just after noon, a nurse telephoned Ms Woutersz' father, Keith, and he told her that Ms Woutersz had not been in touch with the family and that no one knew where she was. He told the nurse that he thought Ms Woutersz had stopped taking her medication for bipolar disorder and that she was likely using drugs.
Just before 6.00 pm that day, Keith Woutersz contacted Canberra Hospital and told a staff member that Ms Woutersz had just come home, and that if she was unsettled he would contact them.
On the next day, early in the afternoon, Keith Woutersz contacted a staff member at Canberra Hospital and told her that Ms Woutersz was “very settled” and seemed to be going well. She had “looked and acted normal”, had had dinner and gone to bed, and he believed she had slept well. She had not demonstrated any physical or verbal aggression. Mr Woutersz said that Ms Woutersz would be staying with him and her mother permanently now.
That evening, the family made plans for Ms Woutersz to “get her life back in order”. Her mother was to help her deal with outstanding arrest warrants relating to two driving charges, and there was also discussion of approaching the RSPCA seeking work for Ms Woutersz.
On 17 October 2014, the next day, Keith Woutersz left for work at about 7.45 am, leaving Ms Woutersz and her mother Cheryl at home.
Neighbours heard “heavy metal” music coming from the house from mid-morning until about noon.
Ms Woutersz’ cousin, John Melder, called the family's landline phone several times during the day to ask Ms Woutersz if she was coming to his birthday party. At 2.05 pm he called for a fourth time and Ms Woutersz answered. She told him that she had "fucked up with [her] family”, but refused to explain further. It is not clear from the statement of facts whether this conversation took place before or after the killing, but the Crown points to certain evidence suggesting that it might have taken place afterwards.
Whatever the time of the killing, it seems that before it, Ms Woutersz and her mother had had an argument. Ms Woutersz brought in a hammer and some rope from the garage. She slapped and punched her mother, knocking her out. She then put her mother on a chair and began cutting her mother's hair. When her mother regained consciousness, Ms Woutersz hit her with a terracotta pot and then struck her repeatedly on the left side of her head, face and jaw, using the hammer. The blows broke her mother's skull. Ms Woutersz struck further blows after her mother fell to the floor.
Ms Woutersz then brought in a ladder and tied her mother's body to it by her feet. She used this to drag the body through the house and into the backyard, taking it to an elevated garden bed in the backyard. She tried to empty quite a lot of soil from the garden bed, and tried unsuccessfully to lift the body into the garden bed. Eventually, she gave up and left the body there.
Ms Woutersz cleaned the inside of the house thoroughly, putting bloodied items into the rubbish bin, cleaned the hammer, and put it back in its rack in the garage. She washed herself in the main bathroom, leaving some blood-stained towels near the shower.
At around 5.30 pm, Keith Woutersz arrived home to find Ms Woutersz in the kitchen cooking eggs and wearing only a G-string. He asked her where her mother was. She said "I don't know", walked into her bedroom, and lay on her bed. While Mr Woutersz was looking for Cheryl, Ms Woutersz opened her bedroom door and asked him to turn off the stove, then returned to her bed.
Eventually, Keith Woutersz found Cheryl's body in the backyard. He asked Ms Woutersz what she had done and received no answer. He then called his brother, and Ms Woutersz' sister, Cassandra, and they called the police, who came and arrested Ms Woutersz.
After her arrest, Ms Woutersz was held in the police watch house. Based on his examination of relevant records, one of the expert witnesses, Professor Greenberg, reported that:
On the 17 October 2014 [late in the evening of the killing] a phone call was made by the Police at the watch house to ACT Mental Health. The police officer was reportedly concerned that Ms Woutersz did not understand the gravity of her charges. She was smiling to herself and seemed confused. She was tangential and illogical in conversation.
Early the next morning, police interviewed Ms Woutersz. The statement of facts says that at this point she “gave her name and appears to have acknowledged preliminary issues and [given] a reasonable history". It is not clear to me what this is intended to convey, but the record of the police interview suggests that Ms Woutersz was not particularly communicative and not particularly rational (for instance, she gave her home address as "earth" and said that she was employed for "world peace and harmony").
As noted, Ms Woutersz was arrested on the night of the killing, 17 October 2014, and has been in custody ever since. She has spent most of that time in the AMC, apart from several months in the Dhulwa secure mental health facility.
Ms Woutersz was initially tried on a charge of murder, to which she pleaded not guilty by reason of mental impairment, but after several weeks of deliberations the jury was unable to agree on a verdict. A second trial was due to begin in late August 2017, but on 10 August 2017, Ms Woutersz was again arraigned on the murder charge. Again, she pleaded not guilty to that charge, but this time she offered a plea of guilty to manslaughter by reason of diminished responsibility, and the Crown accepted that plea in full satisfaction of the murder indictment.
Evidence
The evidence before me consists of the evidence given at the 2016 trial, and one new expert report, being Dr Barker's new report provided in December 2017. Submissions made by the parties have focused largely on the several disputed propositions of law and fact addressed in the written judgment mentioned above, and given the conclusions reached about Ms Woutersz' mental health, little has been said about most of the other matters routinely addressed during sentencing.
Objective seriousness of the offence
In considering the objective seriousness of this offence, I have had regard to the following matters.
First, manslaughter is a serious offence, even when a finding of manslaughter emerges from a determination that the killing concerned cannot properly be described as murder. I note the reminder, repeated in many manslaughter cases, that what is involved in every case of manslaughter is the felonious taking of a human life, and that this must be the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case (see R v Blacklidge, (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Grove and Ireland JJ, 12 December 1995)).
In accepting Ms Woutersz' plea of guilty to manslaughter, the Crown has conceded that when she killed her mother, Ms Woutersz was suffering from an abnormality of mind (being schizophrenia) that substantially impaired her mental responsibility for the killing. I have found that the evidence before me, in particular the evidence of the various psychiatrists involved in this matter, establishes that proposition to the necessary standard, being the balance of probabilities.
I have also concluded, despite the Crown's submissions, that apart from reducing Ms Woutersz' culpability so as to entitle her to a verdict of manslaughter, her mental impairment, if more severe than necessary to justify the manslaughter verdict, may also reduce her culpability for the manslaughter offence itself.
I have further found that Ms Woutersz was at the time of the killing “very unwell”, specifically more unwell than would have justified the manslaughter verdict, and accordingly, for reasons already mentioned, she is entitled to have that higher level of impairment taken into account so as to reduce her culpability for the manslaughter offence.
I have also found that the undisputed ongoing conflicts in the relationship between Ms Woutersz and her mother Cheryl do not, however, provide any basis for a finding that the killing was in any way premeditated, and nor do they detract in any way from the significance of the high level of impairment that I have found Ms Woutersz was suffering at the time of the killing. Nor do I accept that the killing was “motivated” in any real sense by the argument between Ms Woutersz and her mother on the morning of the killing, although the killing may well have been the climax of a chain of events beginning with the argument. It is true that Ms Woutersz gave various accounts of the development of the incident that could in some ways be described, using the Crown's word, as "cogent", or convincing, but many of those accounts in fact describe a developing exchange that was very far from any kind of normal interaction.
Furthermore, I am not convinced by the proposition implicit in the Crown's submissions that the contribution of psychosis to a person's behaviour must be discounted to the extent that the psychosis responds to aspects of the actual situation in which the person finds him or herself, rather than to delusional perceptions of a situation.
I note in response to Crown submissions that although I have rejected the proposition that the role of Ms Woutersz' drug use in triggering her serious mental impairment could increase her culpability for the killing, I also do not see Ms Woutersz' drug use as any kind of mitigating factor for sentencing purposes.
I accept the Crown's submission that the killing was violent and grotesque, but do not see that this detracts from my assessment of the extent of Ms Woutersz’ mental impairment. Nor do I see that Ms Woutersz' efforts to clean up the mess caused by the killing suggested a rational attempt to disguise her actions, given that she left her mother's body in the backyard, and bloodied towels in the bathroom, and made no effort when her father came home to suggest that anyone else had been involved in her mother's death.
There is no claim of any explicit expression of remorse by Ms Woutersz, although there is evidence of her distress at the loss of her mother. I note the Crown's submission that in Ms Woutersz' many intercepted phone calls from the AMC in the months after the killing, there were few if any expressions of remorse, but place little reliance on this, given her continuing somewhat disturbed mental state during that period. The defence submits that the plea of guilty to manslaughter should be seen as indicating remorse, but I am not convinced that it indicates remorse, as such, so much as an acceptance of responsibility and a wish and a willingness to finalise the matter.
Furthermore, although the Crown is somewhat disparaging of Ms Woutersz' subsequent complaints about the failure of hospital staff to admit her at her request on 14 October, and about suggestions that they could have prevented the killing by admitting her, I see this as reflecting at least clear regret about what has happened. Regret, of course, is not the same as remorse, but true and meaningful remorse may be difficult for a person in Ms Woutersz' condition to feel and express.
Having regard to the very distressing circumstances and details of the killing of Cheryl Woutersz, but also to my finding that Ms Woutersz was more severely impaired at the time than would have been necessary to justify acceptance of her plea of guilty to manslaughter on the grounds of diminished responsibility, I consider that Ms Woutersz' offence was of mid-range seriousness.
Subjective circumstances of the offender
I have also had regard in this sentencing to Ms Woutersz' subjective circumstances, although I note that in a case of this kind, the line between the circumstances of the offence and the circumstances of the offender becomes somewhat blurred.
Ms Woutersz is now 26. I have no criminal history before me, but I note that there are two 2013 charges, possibly still outstanding, relating to alleged traffic offences.
Ms Woutersz' parents emigrated from Sri Lanka and she was born in Canberra. Her father is a public servant and her mother was a Montessori teacher.
Ms Woutersz was a loving, caring and intelligent child, and there appear to have been no problems during her childhood and adolescence. In her late teens she began using illicit drugs, apparently starting with ecstasy and, as already mentioned, moving on to amphetamines, particularly Ice. Apart from her brothel work already mentioned, she had worked as a personal trainer.
A significant issue in this matter is Ms Woutersz' mental health and her mental condition. In a report prepared in December last year, Dr Barker, who has been Ms Woutersz' treating psychiatrist for much of the three years that she has now spent in custody, made the following comments about her rehabilitation needs.
… she will require treatment with [clozapine] for the foreseeable future to avoid a deterioration in mental state that could potentially be associated with serious consequences for herself and others …
Ms Woutersz's prognosis is highly dependent on her ability to maintain adequate adherence with her prescribed treatment and abstain from illicit substance use. If she is able to do this then I consider that her prognosis would be reasonably positive. If Ms Woutersz is non-compliant with her treatment, or if she were to resume illicit substance use then her prognosis would be much more guarded, with a high potential for a decline in mental state and an associated risk of serious violence.
…
substance use remains an important potential destabiliser for Ms Woutersz in the future and avoiding illicit substances will be a key feature in reducing her likelihood of further exacerbations of her illness.
...
Ms Woutersz should continue engagement with mental health services, including treatment with antipsychotic medication and regular review with mental health clinicians. Potential stressors such as difficulties with accommodation, finances, or interpersonal relationships should be identified and appropriate strategies developed to mitigate the potential deleterious effects that these stressors could have upon Ms Woutersz and her illness. … Ms Woutersz would also benefit from input from drug and alcohol services to support her abstinence from illicit substance use, and assist her with developing the skills to avoid a relapse in the future.
I have no reason to believe that Ms Woutersz is at this stage resistant to any of the treatment or support proposed by Dr Barker.
Other sentencing issues
In R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269, a Victorian Court of Appeal case which considered, among other things, R v Tsiaras [1996] 1 VR 398, another Victorian case which was cited by the parties, the Victorian Court of Appeal set out at [32], without claiming its list to be exhaustive, six ways in which an offender's mental health might be relevant in sentencing as follows:
Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways:
(1)The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
(2)The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
(3)Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
(4)Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or the date of the sentence or both.
(5)The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
(6)Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
(emphasis added) (footnotes omitted)
First is the impact of mental illness on moral culpability. I have already discussed the impact of Ms Woutersz' impairment on her moral culpability, including my rejection of the Crown's submission that there needs to be a determination of moral culpability having regard to the source or origin of the impairment separately from the determination of whether the person is sufficiently impaired to be entitled to a manslaughter verdict.
Given my finding about the extent of Ms Woutersz' mental impairment, I consider that general deterrence should play a relatively minor role in this sentencing.
Specific deterrence, however, is a different matter. I accept Dr Barker's warning that “avoiding illicit substances will be [a] key feature in reducing [Ms Woutersz'] likelihood of further exacerbations of her illness”, and in turn, avoiding any further decline in her mental state, with the associated risk of serious violence. I consider that Ms Woutersz is currently quite capable of understanding the significance of Dr Barker's warnings, and of realising that any relapse into illicit drug use will expose her to further punishment.
Ms Woutersz' mental impairment will have an impact on the structure of her sentence, and I consider that a reasonably long parole period would be desirable to ensure that the necessary supports identified by Dr Barker can be provided, or at least monitored, for long enough to ensure that Ms Woutersz and the community realise the necessary benefits and protections from the provision of those supports.
I note suggestions that Ms Woutersz has at times struggled in her dealings with other prisoners in the AMC, but has also found the circumstances of the Dhulwa secure mental health facility distressing during her time there. However, there is no evidence before me that a term of imprisonment, in whichever facility it is served, will weigh more heavily on Ms Woutersz than on a person in normal health.
Nor is there evidence that a term of imprisonment will have a significant adverse effect on Ms Woutersz' mental health. At this stage, the evidence seems to be to the effect that ongoing close supervision and the somewhat restricted capacity to access illicit drugs that obtains in the secure facilities, are likely to be beneficial to her mental health.
Ms Woutersz' guilty plea, as well as being some evidence of remorse, entitles her to a plea of guilty discount. Although I do not understand that the plea of guilty that has now been accepted was offered earlier in the course of these proceedings, the Crown concedes that the plea was early given the progress of this matter.
Other matters
Finally, I note that I have had regard to the sentences imposed in the two similar ACT cases of diminished responsibility manslaughter, being R v Singh [1999] ACTSC 66; 154 ACTR 93 (Singh) and R v Navin [2016] ACTSC 109 (Navin), as well as the sentences imposed in a variety of New South Wales cases that needed to be considered in the course of my determination of disputed facts, but I do not see any need to mention most of them. It is perhaps appropriate, however, to refer to the two ACT cases: in Singh, the offender was found to have been severely mentally impaired, and she was sentenced to 10 years imprisonment with a 4-year non-parole period. In Navin, the offender was also found to be quite severely impaired; he was sentenced to 12 years imprisonment, with a non-parole period of 6 years.
I have already noted that the contribution of drug use to Ms Woutersz' mental impairment is not relevant in assessing her culpability, but that it may be relevant, among other things, to the need for specific deterrence and, as I have also noted, I regard that as a particularly important factor in this sentencing.
Finally, before sentencing, I should note that this is an extremely tragic case, and one which has affected, and will no doubt affect, Ms Woutersz' immediate and extended family for the rest of their lives. As far as I know, Ms Woutersz' family remain supportive of her, and this may explain why there is no victim impact statement. This is entirely understandable, but it does mean that I have no real appreciation of the victim in this matter, Cheryl Woutersz. It is appropriate, if inadequate, at this stage to recognise that she seems to have been a loving and forgiving mother, as well as a significant contributor to the community, and to education in particular, and that she is no doubt sorely missed.
Sentence
Ms Woutersz, please stand. I record a conviction on one count of manslaughter.
I now sentence you to imprisonment for 9 years and 9 months, with a non-parole period of 5 years. But for your plea of guilty, I would have set the head sentence at 12 years, with a non-parole period of 6 years.
The sentence will be backdated to 17 October 2014, when you were first taken into custody, and so it will run until [16 July 2024].
The effect of the backdating and the non-parole period is that you will be eligible for parole, at the earliest, in just under 20 months, that is 16 October 2019.
After you are granted parole, Ms Woutersz, whether it is in October next year, or sometime after that, you will be under parole supervision for up to another four years and nine months. During that time, it is vital that you keep away from all illicit drugs, and also vital that you keep taking your prescribed medications. If you don't, if you go back to using illicit drugs, or if you stop taking the medication that is prescribed for you, you might again become a danger to the people around you, and in that case the parole authorities would really have no choice but to return you to prison, possibly even for the rest of your 9 years and 9 months sentence.
I don't want to frighten you, but I do want you to realise just how important it is for you to keep away from illicit drugs, including while you're in prison, and to make sure that you can be released when you're eligible for parole in October next year, and then also to keep away from those drugs after you are released on parole. Not only so that you don't get sent back to prison, but also so that you don't do any more harm to any of the people around you, especially the people who love you and want only the best for you.
If you have any particular questions about the orders I have just made, please ask the court officials, if you speak to them, or your lawyers.
You may sit down.
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: S. Grant Date: 5 March 2018 |
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