The Queen v Elias
[2013] VSC 123
•20 March 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2012 0115
| THE QUEEN |
| v |
| 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 harassing you and that you wanted him killed. You spoke to that neighbour again about the matter on 2 March 2012, but he told you that he could not help you and that you should not contact him anymore. That evening, however, he reported the matter to police and, at their request, he later put you in touch with an undercover police operative whom he insinuated was a strong-arm for hire who may be able to help you.
On 6 March 2012, you contacted that person and made an arrangement to meet him on 7 March 2012. During the meeting, you floated the idea of having Mr Torpy killed, but you expressed concern that police would be likely to regard you as the prime suspect. You gave the undercover operative the impression that, at least at that stage, you were undecided as to whether you wanted Mr Torpy killed, although you left him in no doubt that your motive was to regain custody of your elder daughter.
In a subsequent telephone call to the undercover police operative on 14 March 2012, you stated that you wanted to go ahead and would meet him on 22 March 2012. Then, on 19 March 2012, you called to say that you did not want to go ahead. Then, on 20 March 2012, you called him again and arranged a meeting for 23 March 2012 to discuss whether you would go ahead.
On 23 March 2012, you met the undercover police operative for over an hour. During the meeting, you proposed among other fantastic schemes that he should obtain a body from the morgue and dump it in Mr Torpy’s rear yard and then invoke the assistance of corrupt police officers to force Mr and Mrs Torpy to leave their home. You envisaged that that would force Joanne to return to your home. But the undercover police operative replied that he did not consider that your scheme would be practicable. That was almost enough to deter you. In the ensuing conversation, you expressed strong reservations about the morality of causing harm to anyone and, more than once, stated an intention to abandon the plan altogether. Based on the recording of the conversation which is in evidence, it appears that you would have abandoned the project were it not for the sometimes subtle and sometimes none too subtle repeated encouragement of the undercover operative at that point to engage him to kill or maim the targets. Ultimately, however, you agreed in effect with his suggestion that you should retain him to assault Mr and Mrs Torpy physically to such an extent as to put them in hospital and thus render them unable to work for some months. After settling upon the terms of that arrangement, you paid him a deposit of $100 and promised to pay the balance of his fee, by transferring your Toyota Yaris motor car to him, on completion of the job.
As you walked home from that meeting, you were arrested by police who had been monitoring your conversation, and you were charged; and, since then, you have been held in custody, for the bulk of the time in Thomas Embling Hospital as a security patient under s 16(3)(b) of the Mental Health Act 1986, but more recently in mainstream prison.
Mental state evaluation
I have before me a report of Dr Fiona Best, Consultant Psychiatrist, of the Victorian Institute of Forensic Mental Health, in which she opines that, although your mental condition at the time of the offending was not such as to afford you a defence of mental impairment, it nonetheless so deprived you of the capacity for rational thought and judgment as substantially to reduce your degree of moral culpability. Dr Best also considers that your present mental state, although greatly improved compared to the way it was at the time of offending, is still such that a sentence of imprisonment would be bound to bear more heavily on you than upon a prisoner of ordinary mental health and that continued imprisonment would be likely to have a significant further adverse effect on your mental condition.
I also have before me a report of Ms Isabella Walters, Clinical Neuropsychologist, in which she states that she considers that, at the time of the offending, you were suffering from a mental impairment the result of an episode of psychiatric illness and that it was productive of the offending.
To similar effect, in a brief preliminary report of 30 November 2012, Dr Lester Walton, Consultant Psychiatrist, stated that there was a very real question that you were legally mentally impaired at the time of the offending, based on your lengthy history of waxing and waning depression, at times of psychotic proportions, including auditory and visual hallucinations and deluded ideas with central relevance to your offending.
I also have the benefit of evidence given on the plea by Ms Kris Schroder, counselling and forensic psychologist, who treated you in 2011 for severe depression, severe anxiety and benzodiazepine dependence, and of a report of Dr Leonardo Congiu, who is an associate of Dr Carlisle Perera, consulting psychiatrist, who treated you in 2012 and is said to be prepared to continue your treatment when he returns from overseas. By arrangement, you are to see Dr Congiu, in the absence of Dr Perera, later today.
Taken as a whole, the evidence reveals that your psychiatric disorder goes back at least to 2009, first emerging clearly after the birth of your son in 2008, and may perhaps have been triggered or exacerbated by the pressures of study and marital difficulties which you faced at the time. Shortly after its inception, you were treated by a Professor Burrows, who prescribed what later treating professionals regarded as an extremely high dosage of Xanax. As Ms Schroder explained, Xanax is an insidiously addictive form of benzodiazepine and ultimately had the effect of making your condition worse. Consequently, even though you made strenuous efforts to overcome the difficulties which that presented, including consulting a number of other psychiatrists and psychologists after ceasing to be treated by Professor Burrows, your condition did not significantly improve at any time before the offending. The results are confirmed in a Better Access mental Health Care Plan and Review Patient Assessment prepared by your treating physician, Dr Paul MacCartney
Based on the material to hand, the Crown concedes that at all material times before, at the time of and since the offending, you have been severely affected by a mental condition (whether or not it was or is properly to be described as a psychotic condition) and that, as a consequence, the sentence to be imposed on you should be very much less than would otherwise be the case.
Nature and gravity of the offence
In my view, that concession is well made. Although the offence of incitement to which you have pleaded guilty is a serious offence, attracting the same maximum penalty of 20 years’ imprisonment as an offence of intentionally causing serious injury,[1] I am persuaded that your ability to think rationally and make informed judgments as to the consequences of your actions was very severely compromised and, hence, as Dr Best suggests, that the degree of your moral culpability for the offending was very substantially reduced.
[1]Crimes Act 1958, s 321I(1).
Character and antecedents
Apart from convictions entered in 2011 for offences which, as your counsel explained, related to an incident of drunk driving committed while you were at the nadir of your struggle with depression and substance abuse, you have no prior convictions and, generally speaking you appear to be a person of exemplary character. From the evidence before me, it is also clear that, until you succumbed to your illness, you were a dedicated and caring doctor who was held in very high regard by your supervisors and peers. To say the least, it is a tragedy that someone like you, who has striven so hard to achieve professional excellence as a medico, should be obliged to give up work by reason of a mental affliction and its sequelae. In itself, that is a very significant punishment.
Prospects of rehabilitation
Since you have pleaded guilty to the offence for which you stand to be sentenced, you are entitled to a discount on sentence to reflect the utilitarian value of your plea: in effect the savings of time and resources that would have been invested in a trial and the relief to witnesses and other persons who would have been affected by the stress of a trial. Additionally, although your plea was not entered at the first available opportunity, it was entered notwithstanding that you may well have had a defence of mental impairment available to you and, accordingly, I accept it as a manifestation of genuine remorse reflecting favourable prospects of rehabilitation which warrant a further amelioration of penalty.[2]
[2]Phillips v R [2012] VSCA 140, [69]
You are fortunate to have the continuing support of your husband, Michael Szabo, and of your two daughters, who are now aged 18 and almost 17 and were in court throughout the plea, and for the time being you also have the support of your mother who has spent the last several months in Australia and is willing to remain here at least until the middle of this year in order to assist you.
I note that, according to Dr Best’s report, your mental state is currently stable and that Ms Walters noted in her report that you appear to her to have recovered well and returned to psychological equilibrium. Subject, therefore, to the need for ongoing psychiatric care, to which I shall refer in greater detail in a moment, I regard the chances of you re-offending as negligible.
Synthesis of sentencing considerations
Ordinarily, the inherent gravity of an offence of inciting the intentional causing of serious injury would call for a substantial term of imprisonment in the determination of which denunciation, general and specific deterrence and just punishment would
be the principal informing considerations.[3] This, however, is a most unusual case. In view of your impaired mental state at the time of the offending, your moral culpability was minimal and, for the reasons I have stated, I consider that the need for general deterrence is largely immaterial.[4] Subject to the need for continuing psychiatric care, I also think that the chances of you reoffending are de mininis and, therefore, that there is no need for any specific deterrence as such.
[3]See for example, R v Ivan Gazdovic [2002] VSC 485: sentence of 42 months’ imprisonment notwithstanding withdrawal from enterprise before date of proposed consummation; R v Massie [1998] 1 VR 542: sentence of four years’ imprisonment for offence of incitement to injure and frighten the victim ‘out of her wits’.
[4]R v Verdins (2007) 16 VR 269, 276[32]; Chien Trong Tran v R [2012] VSCA 110, [16]-[27].
I remain concerned that you are in need of continuing psychiatric care and that, without some form of compulsion or at least external discipline, you might fail to ensure that you get it or comply with the recommendations of those who treat you. Consequently, I was at first inclined to sentence you to a term of imprisonment of 18 months, with a non-parole period of 12 months which, given that you have already spent 363 days on remand, would mean that you would be eligible for parole more or less immediately. Such a sentence would accord with the Crown’s submission that a sentence of no more than time already served would be within the range, and it would have the advantage that one might be assured that, before your were released into the community, adequate steps would be put in place for your continuing psychiatric care.
After hearing further from counsel for the Crown, however, whose submissions on this aspect of the matter were wholly supported by your counsel, I am persuaded that a preferable course would be to release you under s 72 of the Sentencing Act 1991, following conviction, on an undertaking to be of good behaviour on condition that you place yourself in the care of Dr Perera and abide by his lawful directions for the period of the undertaking. Accordingly, I propose to adjourn the proceeding for a period of six months from this day on condition that you enter into such an undertaking.
Sentence
Anita Angela Elias, I convict you of the offence of inciting the intentional causing of serious injury to which you have pleaded guilty. I adjourn the proceeding for a period of six months from this day, upon you giving an undertaking that:
a) You will attend before the court if called on to do so during that period and, if the court so specifies, at the time to which the further hearing is adjourned;
b) You will be of good behaviour during the period of the adjournment; and
c) You will place yourself forthwith under the psychiatric care of Dr Carlisle Perera, or in his absence Dr Leonardo Congiu, of 386 Bell Street Preston, and thereafter continue to comply with all his or their lawful and reasonable directions for your psychiatric treatment.
Pursuant to s 6AAA of the Sentencing Act 1991, I declare that, but for your plea of guilty, I would have sentenced you to a total effective sentence of two and a half years’ imprisonment with a non-parole period of 21 months, and I direct that the fact of that declaration and its details be entered in the records of the court.
I shall also make an order under s 464ZF of the Crimes Act 1958 for the taking of forensic samples.
Dr Elias, what you are now being given is the undertaking for signing in the terms which I have just read out. Assuming you are willing to comply with that it will bind you for the period of undertaking of six months to be of good behaviour, to answer the court when called upon to do so and to put yourself under the care of Dr Perera for the duration of the period. You will see that if you fail to comply with those conditions at the bottom of that page the consequences are set out which include the possibility, were you to breach the undertaking, that you could be called back to court and sentenced for the offence to which you have pleaded guilty.
If you are prepared to abide by those conditions I will release you upon the undertaking there set out.
(Undertaking signed and acknowledged.)
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