The Queen v Elias - [2013] VSC 123

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2012 0115

THE QUEEN

ANITA ANGELA ELIAS

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JUDGE:	NETTLE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2013
DATE OF SENTENCE:	20 March 2013
CASE MAY BE CITED AS:	The Queen v Elias
MEDIUM NEUTRAL CITATION:	[2013] VSC 123

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CRIME – Sentencing – Incitement to cause serious injury – One charge – Medical practitioner undergoing severe psychiatric episode at time of offending – Concession by Crown to that effect – Need for general deterrence largely immaterial – Proceedings adjourned for six months with undertaking – R v Verdins (2007) 16 VR 269, applied – Sentencing Act 1991, s 72.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr K G Gilligan	Mr C Hyland, Solicitor for Public Prosecutions
For the Accused	Mr C J Winneke	Kelvin Legg Solicitors

HIS HONOUR:

Anita Angela Elias, you have pleaded guilty to one charge of incitement to intentionally cause serious injury to Gary Torpy and Devi Torpy. It falls to me to sentence you.

The circumstances of the offending

You were born in India on 18 September 1969 and, at time of the offending on 23 March 2012, you were 42 years of age. You met your first husband, Gary Torpy, in India when you were 12 years’ of age and married him when you were 21, at much the same time as you completed medical school and qualified in India as a doctor.

In 1995 you and Mr Torpy adopted your elder daughter, Joanne, and in 1996 you bore Mr Torpy a younger daughter, Rhea. In 1997 you and he and your two daughters came to this country and you began the process of qualifying as a doctor in Victoria. In 2004, your marriage to Mr Torpy came to an end.

In 2005, you met your second husband, Michael Szabo, and two years later you fell pregnant to him with your son, Jacob, who was born in 2008. Shortly after Jacob’s birth, you married Mr Szabo and, in the same year, you qualified as a Fellow of the Royal Australian College of General Practitioners.

In 2010, you and Mr Szabo separated, and for some time your children were removed from your custody because of concerns over your abuse of alcohol. Several months later, you and Mr Szabo were reunited and your son and younger daughter returned to your custody. Your elder daughter, however, chose to remain for the time being in the care of Mr Torpy and his second wife, Devi Torpy.

At that time, you were suffering from a psychiatric illness, to which I shall refer in greater detail later in these sentencing remarks. Acting under the effects of that disorder, you hatched a most bizarre plan to win back custody of your elder daughter by having Gary and Devi Torpy disabled.

On 1 March 2012, you approached a neighbour, whom you had not met before, and told him that Mr Torpy was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Elias

Details

AGLC: The Queen v Elias [2013] VSC 123
Case: [2013] VSC 123
Decision Date: 20 March 2013

CaseChat Overview and Summary

In the matter of The Queen versus Elias, the defendant was charged with incitement to cause serious injury. The case was heard in the Supreme Court of Victoria. The defendant, at the time of the offence, was undergoing a severe psychiatric episode, a fact conceded by the Crown. This significant mental health issue at the time of the offending was a central factor in the sentencing deliberations.

The legal issues before the court centred on the appropriate sentence for the defendant, taking into account his psychiatric state at the time of the offence and the need for general deterrence. The Crown argued that while general deterrence was important, the defendant's mental health condition was a critical mitigating factor. The court had to balance these considerations against the principles of sentencing and the statutory requirements under the Sentencing Act 1991.

The court, in its reasoning, emphasised that the defendant's severe psychiatric episode significantly impacted his culpability and thus reduced the weight to be given to general deterrence. The court referenced R v Verdins (2007) 16 VR 269, which supported the idea that in cases involving severe mental health issues, the primary focus should be on the individual's treatment and rehabilitation rather than punitive measures. Consequently, the court decided to adjourn the proceedings for six months, during which time the defendant would be under an undertaking, allowing for further psychiatric evaluation and potential treatment. This decision reflects a nuanced approach to sentencing that prioritises the defendant's mental health and rehabilitation over purely punitive considerations.

Orders