Regina v Raymond Douglas Sutton; Regina v Margaret Ellen Sutton

[2007] NSWSC 295

CITATION:	Regina v Raymond Douglas Sutton; Regina v Margaret Ellen Sutton [2007] NSWSC 295 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	16 March 2007
JUDGMENT DATE :	4 April 2007
JUDGMENT OF:	Barr J at 1
DECISION:	Raymond Douglas Sutton is ordered to enter into a good behaviour bond for a period of five years from today. The bond is to contain these conditions - (a) that you will appear before the Court if called on to do so at any time during the term of the bond; (b) that during the term of the bond you will be of good behaviour; (c) that during the term of the bond you will continue to consult and accept treatment from Associate Professor Boettcher and follow his advice; and (d) that you will inform the Registrar within seven days if, during the term of the bond, Associate Professor Boettcher ceases to be your treating psychiatrist. Margaret Ellen Sutton is ordered to enter into a good behaviour bond for a period of five years from today. The bond is to contain these conditions - (a) that you will appear before the Court if called on to do so at any time during the term of the bond; (b) that during the term of the bond you will be of good behaviour;(c) that during the term of the bond you will continue to consult and accept treatment from Associate Professor Boettcher and follow his advice; and (d) that you will inform the Registrar within seven days if, during the term of the bond, Associate Professor Boettcher ceases to be your treating psychiatrist.
PARTIES:	Regina, Raymond Douglas Sutton, Margaret Ellen Sutton
FILE NUMBER(S):	SC 2006/2163; 2006/2164
COUNSEL:	P E Barrett A J Bellanto QC and P Rowe
SOLICITORS:	S Kavanagh Hal Ginges & Co

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

4 APRIL 2007

2006/2163 REGINA v RAYMOND DOUGLAS SUTTON
2006/2164 REGINA v MARGARET ELLEN SUTTON

REMARKS ON SENTENCE

1 HIS HONOUR: Each of the offenders, Raymond Douglas Sutton and Margaret Ellen Sutton, has pleaded guilty to the manslaughter of Matthew Sutton. Matthew Sutton, then twenty-nine years old, died on 22 April 2001 while he was in the care of the offenders, his parents. Mrs Sutton sedated him with the intention that Mr Sutton should kill him. Mr Sutton did the act that caused Matthew’s death.

2 It is necessary in order to understand why that event happened to consider the history of Mr and Mrs Sutton and their family, beginning at a time before the birth of Matthew. Mr and Mrs Sutton are now sixty-three and sixty years old respectively. They married when he was twenty-two and she was twenty. They wanted to have a family. Mrs Sutton gave birth to a normal, healthy son. After his birth Mrs Sutton suffered five successive miscarriages. So determined was she to bear another child that as soon as she became pregnant again she had the neck of her womb stitched to ensure that she would not miscarry again. Matthew was born at full term on 1 May 1972. It was immediately obvious that he was seriously disabled. He had no eyes, he had a large, oddly-shaped nose and a cleft lip and palate. At eighteen hours of age he had to be fitted with a dental plate so that he could feed. Matthew was suffering from Trisomy 13 Syndrome, a condition in which all or a part of chromosome 13 appears three times rather than twice. Infants who suffer from the condition have disabilities of various kinds, not only those that I have mentioned. They may include developmental delays and profound mental retardation. The condition is incurable. The survival of infants born with the condition depends on how severely they are affected. Only a small proportion of babies with the syndrome survive as long as a year.

3 Matthew underwent substantial and repeated surgery over the first few years of his life. There were attempts, never completely successful, to repair the palate and improve the shape of the nose.

4 Another disability that later manifested itself was that Matthew was completely deaf in the right ear and had only thirty or forty per cent hearing in the left. In due course it became apparent that Matthew was profoundly mentally retarded. He achieved a mental age of a child aged three or four years.

5 Mr and Mrs Sutton were devoted to Matthew and did everything for him. The care that they gave, however, placed great strain on the family, for Matthew’s elder brother and for Mrs Sutton’s mother, a stalwart supporter, as well as for Mr and Mrs Sutton. Mrs Sutton’s mother became ill with heart disease and Mr and Mrs Sutton’s marriage began to suffer. They realised that they would have to place Matthew in care. Mrs Sutton wrote to hundreds of nursing homes and visited every one that responded. In August 1975 Mrs Sutton’s mother died. They found a suitable home for Matthew at Liverpool and he began living there. That allowed the family some respite. They collected him and took him home every third day and, after he settled there, every weekend. On one day each week Mrs Sutton collected Matthew and took him to a preschool at the North Rocks Multi-Handicapped School for Deaf and Blind Children. When he was seven years old he was accepted by that school and lived there. Mr and Mrs Sutton took him home every weekend but it was hard for him and them to be separated. That pattern remained until 1988. Matthew made progress. Mr and Mrs Sutton were persuaded by the speech therapist to try once again to have the palate closed to try to improve his speech. He almost died during the operation and required many blood transfusions. Mr and Mrs Sutton were overjoyed that he came through the operation.

6 The time came for Matthew to leave the North Rocks school and another place had to be found for him to live. He was then eighteen years old. In spite of his numerous and serious disabilities he had no particular behavioural problems. He moved into a group home at Katoomba in November 1990. Not surprisingly the home, which had been newly established under the auspices of the Department of Community Services, was different in many ways from the one Matthew was used to. The staff were different. There must have been different ways of doing things. More importantly, the other invalid residents were different. With his limited reserves, Matthew found it difficult to cope with the changes. Almost straight away he began to behave differently on home visits. He began to scream and attack people without warning. Although Mr and Mrs Sutton did not realise it at the time, this behaviour was probably a reaction to the violent behaviour of other residents. Matthew began to become difficult to manage, especially when Mr and Mrs Sutton had to get him ready to take him back to the home at the end of a weekend visit.

7 Mr and Mrs Sutton persevered over the years. They became involved with the life of the home. They met the staff and other parents regularly. They contributed to the establishment of standards at the home. They attended meetings with medical and other professional people. They attended all Matthew’s appointments. They sat on panels to interview applicants for employment.

8 These services were not given without cost. Mr and Mrs Sutton had to juggle their job responsibilities. The burden upon them was enormous and they began to suffer the effects of the unrelenting demands placed on them.

9 Things took a turn for the worse in 1992, when a certain severely disabled young man took up residence at the home. He turned out to be especially violent and disruptive and this had a bad effect upon the other residents, including Matthew. His behaviour during his weekly visits home became worse and that state of affairs continued until the young man left the home, following an official complaint by Mrs Sutton to the Department and a departmental inquiry. During the period of that person’s residence, between 1992 and 1995, it became impossible any longer to take Matthew on family outings if others, especially children, were likely to be present. Even other adults resented his presence. So, out of devotion to Matthew, Mr and Mrs Sutton denied themselves companionship and pleasure.

10 Inevitably, these things affected their health. Mrs Sutton suffered bouts of anxiety, depression and feelings of guilt. There were recurrent migraines. She was prescribed anti-depressants, anti-anxiety medicine and had to have professional counselling support. Mr Sutton had had a stressful childhood, so much so that he has complete amnesia for most of it. He became concerned for his wife’s welfare and felt the stresses building up again. His general practitioner began treating him for depression. He sought solace in alcohol.

11 By 2001 Matthew’s physical and mental state had been static for years and no further medical or surgical intervention was contemplated. He was blind, of course. He had limited hearing in the left ear. His power of speech was limited by his intellect, his restricted ability to hear the speech of others and the condition of his palate, but he could repeat words others had spoken or that he had heard in tape recordings of the stories he loved to listen to. He loved to listen to music and repeat the words of songs he heard. He had a sense of taste. Since the removal of the violent resident, his behaviour had slowly improved to a manageable level. Then there was more bad news. Matthew had begun hitting the side of his head and it was impossible for a doctor to conduct a conventional examination to find out what the problem was. An exploratory operation was done under general anaesthetic and the left mastoid process was found to be diseased. Mr and Mrs Sutton were told that if the condition was not corrected the disease would spread to the lining of the brain and, in one way or another, threaten Matthew’s life. Surgical removal of the diseased portion of the mastoid bone would also remove most of hearing mechanism of the left ear. As a result Matthew would be totally deaf for three months. After that time he might regain some hearing, but the best he could hope for was a seventy per cent loss of the remaining hearing. Whatever the degree of any retained hearing, Matthew would probably lose the speech he had. He might also suffer paralysis of one side of the face and he might lose his sense of taste.

12 Mr and Mrs Sutton were completely disconcerted. They were well aware that Matthew had lacked understanding of the changes that had happened to his world over the years and that he had consequently reacted with frustrated violence. They knew that there was no way of explaining to him what had to happen or what the risks were. They knew that Matthew could not be made to understand that he would lose his hearing for a time and probably for good and that he would consequently become unable to speak. They could not contemplate standing by and letting the disease do its work, yet the alternative was to take away from Matthew, in a way he could not understand, all that he enjoyed. Mr and Mrs Sutton made a decision. Mrs Sutton put it this way in a statement she made for the Court -

While we hoped for a miracle right up to the last, we knew there wouldn't be one. How as loving, caring parents could we let him enter the world he was about to.
In the past we had been unable to protect him from abuse both from others & himself. How could we subject our precious son to what was ahead.
He had been through so much, & with a courage & determination most could only hope to achieve. He was such a brave soul.
At this time in his life he deserved a reward, not what lay ahead of him.
So with all the love we had for Matti, we borrowed from his strength & courage & released him from any more pain & suffering, he had had enough.
We owed him nothing less.

13 On the night of 22 April 2001 Matthew was staying with Mr and Mrs Sutton. His birthday anniversary was to fall on 1 May and a party was held during the visit. At that time Matthew was taking a number of prescription drugs which Mrs Sutton normally gave him before he went to bed. She gave drugs to him as usual, and they included a sedative which she administered with the intention of rendering Matthew unconscious. That was because she did not want him to suffer when, as she intended, Mr Sutton should bring his life to an end. Matthew went to sleep. Later on Mr Sutton went to him and did the act that caused his death. The evidence does not disclose what the act was.

14 In due course a telephone call was made and ambulance officers attended. They invited Mr and Mrs Sutton to explain what had happened but they declined to do so. A post-mortem examination showed the presence of drugs in the body, but established no conclusive cause of death. The police became involved. On 24 April 2001 police officers asked Mrs Sutton why she had chosen not to answer the ambulance officers’ questions and she said that she did not know. On the same day the officers interviewed Mr Sutton, who told them that he had found the deceased dead. When asked how he had known that he was dead he said that he preferred not to say.

15 Mr and Mrs Sutton were again interviewed in May and June 2003. They confirmed their version of events and added nothing.

16 Following these interviews, the police secretly listened to and recorded the conversations of Mr and Mrs Sutton, using devices installed by warrant. They were recorded on 29 May 2003 as saying these things-

Mrs Sutton: I hate all this lying, especially with my memory.
Mrs Sutton: Everybody knows you’re lying.
Mr Sutton: Everyone’s going through the process Margaret. That’s all. It’s because there is no euthanasia.

17 On 31 May 2003 there was this conversation -

Mrs Sutton: Long after the police have finished with us we will have to live with it anyway.

18 On 2 June 2003 there was this conversation -

Mrs Sutton: When they say, “how did you know that he had passed away?”, what are you going to say?
Mr Sutton: I’m not sure. I don’t see how, I’ll just say to him, you know, I just shut down for ten, eight months or nine months or whatever it was. I don’t want to remember.

19 A Coroner’s inquest was fixed for hearing on 4 and 5 July 2005. On the second day of hearing the solicitor for Mr and Mrs Sutton approached the police and informed them that they wished to take part in a further interview. Accordingly, the inquest was adjourned and arrangements were made for an interview on 6 July. Police interviewed Mrs Sutton first, in the presence of her solicitor. She said that at some time over the last weekend of Matthew’s life he had stayed with her and her husband and she had had a conversation with her husband. They had decided that they could not subject Matthew to any further pain and knew in their own minds that the operation he would have would further reduce his quality of life. She said that on 22 April 2001 she had administered a number of drugs by tablet. The purpose was to sedate him so that a further act could take place to end his life. How that should be done she left for Mr Sutton. She said that she was not present when Matthew died but that she was informed by Mr Sutton at about 11:30pm that he had died. She said that she loved the deceased and that that was why she and her husband had decided to end his life. She was asked why she had not approached the police earlier to explain her involvement in Matthew’s death and said that she had been expecting the police to arrest her any day since his death.

20 Mr Sutton was interviewed on the same day, also in the company of his solicitor. He said that on 22 April 2001 he and his wife had decided that they could not subject their son to any further pain. He believed that the operation would significantly reduce his quality of life. He knew that his wife had administered a number of drugs to relax or sedate Matthew. He went to his bedroom later that night and “released Matthew from this world”. When asked what he did to release the deceased, he replied that he would not like to comment. He agreed that he was the person responsible for causing death.

21 Both offenders were immediately charged with murder. Each entered a plea of guilty of manslaughter in the Local Court. The basis of the plea offered was substantial impairment by abnormality of mind.

22 As a result of all the pressure on Mr Sutton he was not coping well in his job as a courier. He was drinking heavily at weekends. He was treated by his general practitioner for depression. In September 2000 he was prescribed anti-depressants and took them for a few months. After Matthew’s death he refused to see any doctor. He stayed off work for nine months and isolated himself at home. His general practitioner referred him to a psychiatrist, Associate Professor Boettcher, for treatment. In due course, at the request of the solicitor for Mr and Mrs Sutton, Professor Boettcher wrote reports for the Court. After reviewing the history of the family and of the death of Matthew, Professor Boettcher observed that Mr Sutton had had a drinking problem and depression. He had tried to put up with things but had eventually sought help from his general practitioner. Speaking of his mental state at the time of Matthew’s death, he said this -

The people who have been looking after Mathew said they would be putting things in place for after the operation. However on the night he died they found Mathew could not stop talking. Nothing much was discussed between Mr and Mrs Sutton, he said, as they realised Mathew was not coping although the government people told the he was.

Mr Sutton said around 8 PM on the night Mathew died they realised there was no escape. Margaret gave him medication they had. There was no plan and it was a spur of the moment decision. They felt compelled to do something and there seemed to be a sense of unreality about their discussions on that night.

They felt they had betrayed him so often by sending him off to the group home and the thought of sending him off to have the operation was too much. Mr Sutton said, "He trusted me and I betrayed him all the time".
He did want to continue any further discussion about details of Mathew's death with me at the time of Mathews death.

I really can't be clear about his mental state at this time but it seems that he had continuing hopelessness, numbing and cognitive impairment present which had been present for sometime.

I would also point out the "Relational Problems” that occur in any relationship were one person has a mental illness. In Raymond's case his wife suffered from a Depressive Disorder for many years and getting worse. He, on the other hand, has had Alcoholic substance abuse and I believe that there was a destructive meshing of psychopathology worsened and fuelled by the terrible strain of Mathew's condition to produce a numbing inhibition of cognition, denial and difficulty in making judgements which continues to the present time.

23 Professor Boettcher continued -

The serious stress has reoccurred with the birth of Mathew and has seemed to get steadily worse culminating in the news that he and his wife had been sending Mathew back from weekends into the hand of more abuse. Then came the news that Mathew would loose his remaining senses with the mastoid operation. Clearly Mr Sutton has suffered from alcohol abuse to help him cope and this got steadily worse and depressive symptoms developed. The depression worsened and prior to Mathew's death I believe he was suffering from a Depressive disorder as did his wife.

The combined effect of the two of them depressed and suffering the most horrific news of the almost certain effects of the operation on Mathews I believe caused their judgement and cognition to be substantially impaired in both of them. As regards aetiology of the cognitive impairment, in Margaret's case there was the Depressive Disorder as well as the devastating situation for Mathew and in the case of Raymond there was the alcoholism, depression and Mathews situation.

…
I thus believe that Mr Raymond Sutton at the time of Mathew's death suffered from a substantial impairment of his capacity to understand events and to judge whether the his actions were right or wrong and was thus impaired by an serious abnormality of mind arising from several underlying condition's namely long standing alcohol abuse, depression, severe emotional distress concerning his son pending operation and relational problems.

24 Mrs Sutton was treated for twenty-five years by successive general practitioners for major anxiety and depressive disorder. She was attended by a counsellor, Ms Reigh. She has been taking the anti-depressant Tryptanol for twenty-five years. She takes tablets to help her sleep. When the present matters emerged she was referred by her general practitioner, Dr Chong, to Professor Boettcher for treatment. In addition, Professor Boettcher was asked by Mrs Sutton’s solicitor to offer an opinion whether there was a proper basis for an offer of a plea of guilty of manslaughter. Professor Boettcher’s report was tendered on sentence.

25 Dealing with Mrs Sutton’s state of mind at the time of the offence, Professor Boettcher said this -

They had been distressed for weeks wondering how he was going to cope and he was frantic to keep the hearing connection with them as his hearing faded due to the increasing damage to the hearing because of the serous infection. She said, "He talked non stop about anything at all and ask repetitive questions and just wanted to keep the contact with them.

As the day went on Ray and me were more and more worried about what will happen and we withheld the Risperidone as we thought it might interfere with the anaesthesia next morning. We were feeling more and more devastated about what was going to happen next morning and felt his whole quality of life was going to end next morning".

Mathew had proven over his life that he responded with violence and self mutilation. They knew that when he woke up they would not be able to comfort him and would not be able to tell them when he was in pain and revert to violence.

They were convinced that the house where he lived would not cope with him and he would have to be moved to another more secure group home that has "ferocious" clients and is more like a goal. They were very sad and she said they, "that we that little boy and we were feeling very distressed". They were crying and quite devastated and were certain that there was "no alternative".

The mental state in Major Depressive Disorder and such heightened emotional state cause impairment of judgement and slowed cognition, blurred by the perception of hopelessness. There is a preoccupation which means one finds it hard to see peripheral and complex arguments. Attention and concentration add to all this by being very poor so that again logical thinking is impaired and the usual reliance of memory is also impaired. Another influence in such impaired cognition and is the lack of sleep and poor nutrition due to lack of appetite. The right dose and type of medication can help these symptoms by means of correcting the functions of the neurotransmitter Serotin in the brain. Migraine s also associated with neurotransmitter disorder.

Mrs Sutton had continued on Tryptanol 25 mg tablets and she thinks that she may have had 50 mg Tryptanol the night before and she had been over the years up to 6 tablets, started by a GP and occasionally seen by a psychiatrist. They said that her depression and violent migraines were due to the stress they were under. The depression acts to interfere with judgement and people will be liable to find the judgement between right and wrong to difficult to conceptualise. Their cognition s often quiet seriously interfered with and they are capable, for example, of making bad mistakes in business and financial dealings.

The psychotherapist, Pat, said they did not think of themselves it was all about Mathew and that is why her dose of antidepressant was not up higher. She simply did not think about her own problems. Up till that night they had been preparing to arrange things for after the operation, for example, they had his birthday a week earlier as they knew he would not appreciate it after the operation. She had been having problems eating due to the depression and she had really suffered an eating disorder due to the depression.

They felt trapped that they could do nothing about the situation that was coming after the operation.

26 In answering the question asked of him, Professor Boettcher said this -

This poor woman has suffered the terrible and indescribable horror of having a son who had the most serious deprivation of senses imaginable and then having the remaining senses have to be removed. She and her husband fully realised the horror this meant for their son with a mental age of 3 years. Both she and her husband have been stressed to the limit and she has displayed the most serious depression with suicidal ideation and current desire to be punished for killing her son. She has a history of recurrent bouts of Depressive Disorder.

There can be little doubt that at the time of the offence she suffered an abnormality of the mind in that she suffered from Major Depressive Disorder and had impaired judgement. It seems that she was of the opinion that they were both not acting to kill their son but the primary aim was to stop the suffering that he had had at the hands of fate, genetics and the NSW Government instrumentalities.

…

The Major Depression was induced by the terrible and overwhelming stress she was under as well as to the genetic tendency, and that this major recurrent episode of depression had been recurrently occurring since her son became violent This together with the extremely heightened emotional state was an underlying cause. I believe that at the time of her killing or taking part in the killing of her son, her capacity in the judgement of whether her action was right of wrong was substantially impaired by her depression and general extremely heightened emotional state and, that her capacity to control herself was also so substantially impaired (substantial being between total and trivial),because of her depression and her extremely heightened emotion state. 'This depression and extremely heightened state is, I believe, an abnormality of mental functioning arising from an underlying condition.

27 When Professor Boettcher’s reports were served on the prosecution, the Director of Public Prosecutions obtained the opinion of a consulting psychiatrist, Dr Brown. Dr Brown interviewed Mr and Mrs Sutton. In a report dated 5 September 2006 Dr Brown concluded that Mr Sutton suffered from major depressive disorder associated with long-standing alcohol abuse, the latter in remission. Both conditions were of a moderately severe level and likely to have arisen as a consequence of the need to care for Matthew. Speaking of Mr Sutton’s mental state at the time of the offence, Dr Brown said -

A combination of factors is likely to have contributed to Mr. Sutton's offending behaviour. On a background of having suffered a long-standing chronic depression and Alcohol Abuse Disorder, Mr. Sutton impressed as a man who had otherwise made strenuous efforts to maintain a semblance of normality and coping, probably on the basis of his assumption of responsibility in providing care for his also depressed wife and as part of his desire to continue care of son Matthew. He did not describe early attachment difficulties or having experienced prior periods of having considered his son's life not to be worthwhile. Rather, Mr Sutton is likely to have brought to the events of 22/23 April 2001 a chronic Depressive Disorder and Alcohol Abuse Disorder, which then became escalated in anticipation of the pending operative procedure and compounded by his personality style of believing that he had to cope independently and his perception of a lack of suitable or available care for Matthew following the operative procedure. The marked interdependence developed by this couple during the years of caring for son Matthew is also likely to have contributed to his development of an over-valued idea that Matthew would be better dead. Although it is possible that the outcome would not have been as dire as expected by Mr. Sutton, he impressed as firmly holding this belief at the time and having maintained this view despite the passage of years. Whilst not of a delusional level, Mr. Sutton's firmly held belief in this regard is likely to represent both a depressive type phenomenon which was reinforced by interdependency in the relationship with his wife and their shared belief in this regard.

28 Dr Brown agreed with Professor Boettcher’s opinion that Mr Sutton had the partial defence of substantial impairment (expressed as diminished responsibility) available to him.

29 Dr Brown said this of Mrs Sutton -

Because of the development of an ear and mastoid problem in his less deaf left ear, Mrs. Sutton said that Matthew had been recommended to undergo an operation in November 2000. Although there had been discussions with the group home and with the North Rocks school he had previously attended as to how to best prepare Matthew for the time ahead, Mrs. Sutton explained that it had not been possible to explain what was about to occur, on the basis of Matthew's limited understanding.

Because of his birthday having been one week after the planned operation, Mrs. Sutton said that she and her husband celebrated with Matthew on the weekend before his death, in terms of taking him out shopping and buying him treats and enjoying his favourite foods at home. She said that the surgeon who was to perform the operation telephoned her at home to warn her that Matthew would be totally deaf in his good ear for a three month period and then might only recover a very limited amount of hearing as a best outcome. She said that she was also warned that he might experience paralysis of his face as a potential operative complication. However, if the operation was not performed, Mrs. Sutton understood that her son's condition would deteriorate and that he would be likely to lose his hearing regardless.

Mrs. Sutton further explained that the group home managers had been limiting his access to music, in an attempt to prepare him for his post operative deafness. However, on bringing Matthew home that weekend, Mrs. Sutton explained that he was talking non­stop in an agitated fashion and with her concerns that he would not cope after the operation becoming much more pronounced. She said that she believed he would not be able to cope with the frustration of his sudden loss of hearing, particularly as there was no way to prepare him for this outcome and also that she was extremely concerned his aggressive behaviour would markedly worsen.

In addition, although the plan had been that he would return to his usual group home setting, Mrs. Sutton said that she held grave concerns that Matthew's behaviour would be manageable after his loss of hearing. She said that he was already hitting his head and had turned up having bitten his fingers prior to the weekend. Mrs. Sutton said that she and her husband talked over their joint fears in this regard. Without them having discussed any specifics, Mrs Sutton explained that she had prepared a number of sedative medications and given them to him around at 8.00pm. She said that as was their usual pattern, either she or her husband checked on Matthew every twenty minutes or so at night and she recalled her husband having come to inform her that Matthew had passed away, possibly in the early hours of the morning. She said that her husband had never indicated to her how Matthew's death had been effected, however of her own actions subsequently Mrs. Sutton explained that Matthew had been incontinent and so she changed his pyjamas and she and her husband sat with him for a one or two hour period. Not knowing what to do in the situation, Mrs. Sutton said she made contact with her brother and after his arrival he telephoned for an ambulance.

Mrs. Sutton said that in the expectation of being arrested that night she had her coat ready to take with her. Of being questioned by police, Mrs. Sutton said that she felt that
the police had "understood" why they had acted as they did, however further questioning occurred over time, particularly on a yearly basis and at around the time of Matthew's death. Mrs. Sutton has subsequently understood that police placed listening devices in their home.

By the time of the Inquest occurring in July 2005, Mrs. Sutton said that she decided to provide a confession at this stage of events. She understands that she is being charged with murder, however she expressed uncertainty as to whether a custodial sentence would be a likely outcome. She said that she is prepared to go to prison if required, because she still believes that the important issue is that Matthew no longer has to suffer. Despite the passage of several years, Mrs. Sutton said that she has not changed her mind about her actions and that she would still take the same path. In terms of what punishment might be appropriate, Mrs. Sutton said that living with the loss of their son on a daily basis has been a punishment for both her and her husband and one which she expects to experience for the remainder of her life.

30 Dr Brown considered that Mrs Sutton was suffering from a chronic major depressive disorder characterised by severe episodes of acute depression superimposed on a long-standing milder chronic mood disorder. She agreed with Professor Boettcher that Mrs Sutton had available the partial defence of substantial impairment.

31 Having received this evidence, the Crown acted appropriately in accepting the pleas of guilty of manslaughter.

32 Mr Bellanto QC, for the offenders, reminded the Court why courts sentence offenders, namely to punish them, to prevent crime by deterring them and others from committing similar offences, to protect the community from them, to promote their rehabilitation, to make them accountable for what they have done, to denounce their criminal conduct and to recognise the harm they have done to the victim and the community.

33 Mr Bellanto submitted that there was no cause to deter the offenders or others from committing similar offences. I am satisfied that the offenders themselves will never offend again. Their responsibility was impaired by the abnormality of mind of which Professor Boettcher and Dr Brown have written. Nobody in the community suffering under the burden that weighed on the offenders is likely to give consideration to sentences imposed on others and be thereby deterred from committing like offences.

34 It was submitted that there was no need to protect the community from the offenders. I accept that submission.

35 The public hearing and the imposition of sentences in due course will make the offenders accountable for their actions and will recognise the harm done to the victim of the crime and to the community.

36 There remain the rehabilitation of the offenders and the need to punish them and denounce their conduct. Their criminal conduct may be summarised thus. The law entrusted them with the responsibility to care for a severely disabled and vulnerable person. Under the stressors I have described and with the abnormality of mind attested to by the expert witnesses and faced with a problem not of their own making, the offenders decided that the only thing they could do was protect Matthew from a future life without sensation by bringing his life to an end. They decided to breach their trust because they loved him and could not bear to contemplate his suffering any more. Their decision was made within a short time and born of desperation. There was no long-term planning. There is no evidence of preparation. They probably used drugs that were already to hand.

37 I accept that the offenders always believed that they would be charged. They were entitled not to answer questions the answers to which would incriminate them. The sum total of the evidence for the Coroner’s inquest seems to have been this. The deceased was in the care and the presence of the offenders when he died. The results of the post-mortem examination did not establish the cause of death. There was evidence of conversations between the offenders which raised a strong suspicion that they had somehow involved themselves in the death. But that seems to have been as far as the prosecution case went. It seems to me to have been unlikely to produce convictions for murder or manslaughter. The offenders had legal advice and may well have realised this. It seems to me in the circumstances that the offenders made their thorough confessions not because they thought that there was a strong case against them but because they could no longer bear to keep their secret to themselves. Mrs Sutton’s statement that she hated all the lying bears out this conclusion. So the voluntary admissions of the offenders gave the Crown a case it would not otherwise have had. After that, the offenders never sought to go back on what they had said. As soon as the ground was established, they offered justifiable pleas of guilty of manslaughter and saved the community the trouble and expense of any extended committal proceeding and of a trial in this Court. They are entitled to full consideration for those matters.

38 It seems to me that nothing that the Court can do by way of sentence can add to the offenders’ suffering. The need for further punishment is spent.

39 The community has an interest in the health and continued treatment of the offenders. Professor Boettcher is treating them and intends to continue to do so. He thinks that they have had an understanding in the past about suicide. He thinks that the risk of suicide is still present. The support they have given one another over the years is well attested. Professor Boettcher thinks that that mutual support is an essential part of their treatment. He believes that they should not be separated. He believes that there will be a health risk for them if they are separated. A custodial sentence for either of them would, of course, separate them.

40 When interviewed by Dr Brown, Mrs Sutton denied recent suicidal ideation. However, Dr Brown acknowledged Professor Boettcher’s opinion about the risk of suicide. She referred to the close level of interdependence and support provided by the offenders each for the other and the likely destabilising effect if they were required to part for any length of time. Dr Brown considers that Mrs Sutton should be regularly reviewed by a community psychiatrist and for her medication and supportive contact to be provided in that setting.

41 Mr Sutton, too, denied to Dr Brown that there were any recent or present ideas of suicide. Dr Brown noted, however, that he had been briefly admitted to hospital involuntarily. She considered that even if Mr Sutton did not wish to undertake intensive psychiatric counselling or medication he ought at least to attend upon his general practitioner or local psychiatrist for a review from time to time, so as to monitor his use of anti-depressant medication. So both psychiatrists thought that Mr and Mrs Sutton could only be properly treated while they were in the community, supporting each other.

42 Mr and Mrs Sutton devoted the best years of their lives to Matthew and to his welfare. No demand was too much for them. They gave up everything for him. They gave up any hope of a normal life so that they could nurture him. Even the last act was one born of love for him. They believed that what they did was right. Of course, it was not, as they have acknowledged by their pleas of guilty, but in my opinion the community has no interest in seeing either of them imprisoned who, out of love and labouring under an inability properly to reason, offended, when the overwhelming need is to see them properly treated. A custodial sentence would be cruel because it would separate them and deny them the full benefits of the treatment to which they are entitled.

43 Raymond Douglas Sutton, I order you to enter into a good behaviour bond for a period of five years from today. The bond is to contain these conditions -

(a) that you will appear before the Court if called on to do so at any time during the term of the bond;
(b) that during the term of the bond you will be of good behaviour;
(c) that during the term of the bond you will continue to consult and accept treatment from Associate Professor Boettcher and follow his advice; and
(d) that you will inform the Registrar within seven days if, during the term of the bond, Associate Professor Boettcher ceases to be your treating psychiatrist.

44 Margaret Ellen Sutton, I order you to enter into a good behaviour bond for a period of five years from today. The bond is to contain these conditions -

(a) that you will appear before the Court if called on to do so at any time during the term of the bond;
(b) that during the term of the bond you will be of good behaviour;
(c) that during the term of the bond you will continue to consult and accept treatment from Associate Professor Boettcher and follow his advice; and
(d) that you will inform the Registrar within seven days if, during the term of the bond, Associate Professor Boettcher ceases to be your treating psychiatrist.
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