R v Robson

[2012] NZHC 2157

ORDER PROHIBITING PUBLICATION OF PARTICULARS OF ATTEMPTED SUICIDE.

NOTE SECTION 71 OF THE CORONERS ACT 2006

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-004-018498 [2012] NZHC 2157

THE QUEEN

v

KAREN EMILY ROBSON

Hearing:         24 August 2012

Counsel:         R Reed for the Crown

D Niven for prisoner

Judgment:      24 August 2012

SENTENCING REMARKS OF ASHER J

Solicitors/Counsel:

Crown Solicitor, DX CP24063, Auckland 1140. Email:  [email protected]

D Niven, DX CP 24133, Newmarket, Auckland 1149. Email:  [email protected]

R V KAREN EMILY ROBSON HC AK CRI-2011-004-018498 [24 August 2012]

[1]      Karen Robson you have pleaded guilty to being part of a suicide pact with

“P” and you now appear before the Court for sentence.

[2]      The Police summary of facts discloses that you had been in a relationship with P for approximately three and a half years.   I understand from your counsel Mr Niven that you in fact met some five or six years earlier at Pitman House, which is a drug and alcohol clinic.  You lived together for that three and a half years and indeed I had understood from the statement of P’s mother that at one stage marriage was a prospect.  You were both drug users and you were listed on the opiate suppressant methadone programme.

[3]      Mr Niven has informed me that when you first met P was in a wheelchair after a motorcycle accident.  With regular rehabilitation sessions he improved to the extent that he could get around with the assistance of a walking stick.  He was in constant pain and suffered from chronic insomnia.  He had ongoing problems with blood clots, which required surgery from time to time.

[4]      It is clear that you were both in a bad way in terms of depression and drug use at the time of the suicide pact.  Mr Niven also has stated that you were under considerable financial pressure.  P had been involved in a serious and expensive car accident some time before leaving him considerably in debt.

[5]      You have said that you contacted CADS and the authorities in the weeks prior to the suicide pact saying that you and P were thinking of suicide.  On 9 September

2011 you decided between you that you would kill yourselves the following day.  On that day you wrote several entries in a black diary.   At least some of these were signed by both you and P.  The statements show a keen sense of mutual commitment to each other and the sadness of your existence at the time.  For instance, you said “... Well we’re getting sleepy.   Last will and testament Keep us together to be cremated together always nothing will split us up.  Couldn’t live in fear as well as all other stuff ...”.

[6]      The  sequence  is  not  entirely  clear  from  the  summary  but  it  seems  ...

REDACTED ...

[7]      At about 3.30pm that afternoon you woke.  P was not next to you but was in the  corner  of  the  room.   You  at  that  stage  panicked  and  called  the  emergency services.  ... REDACTED ...  You were found at the back of the property.  An entry was forced into the house.   P was removed and taken to the Auckland Hospital emergency department for treatment, as were you.  P died the next day.  You were treated for carbon monoxide poisoning.   This included two treatments in the hyperbaric unit at the Devonport Naval Base.  You said to the Police in explanation that everything had become too much for you both and you were at rock bottom.

[8]      The importance of human life, what we call the sanctity of human life, and the terrible consequences when a life is lost were made very clear when P’s mother gave her statement in court this morning.  She told the Court how much she loved her son.  She spoke of his great qualities and what he meant to her and her complete devastation at his loss.  I acknowledge her bravery in making that statement and the extent of that loss.  This sentencing cannot protect her from that loss but the impact on her is fully recognised.

[9]      I have before me a detailed and helpful report from a probation officer setting out her opinion and advice on your position.  You are assessed as being at high risk of re-offending.   There is high risk of doing self-harm due to your lifestyle, and medium risk of harming others; not in a physical way, but as victims of your dishonesty if you try to resume your drug habit.  You are considered able to comply with community-based sentences and you acknowledge that you will need support and help in the future.

[10]     It is clear you do need direction and expert counseling.  The probation officer says: “Ms Robson is more than remorseful, she is distraught and fragile and will need support if she is to have a productive future.”

[11]     You spoke to the probation officer about P with affection and respect.  You did not blame anyone for your position.   Indeed, you described your childhood as good.   But you have been using drugs since you were 16 or 17 years old.   You became addicted to heroin and then morphine.   You have been on the methadone programme off and on for many years.   You have been prescribed diazepam and

lorazepam for severe anxiety, and anti-psychotic drugs.  You have been diagnosed as suffering from post-traumatic stress syndrome by a psychiatrist at the Taranaki Base Hospital, and you have received counseling.   You are strongly supported by your mother.

[12]   This charge that you face carries a maximum sentence of five years’ imprisonment.   It is a charge specifically enacted by Parliament to cover exactly what has happened here.  Although the charge has been available for many years there is indeed only one case that has been drawn to my attention, or that researchers have been able to find, involving a sentencing for this offence.[1]   The reason for that is that it only applies when there is a genuine mutual suicide attempt.  It does not apply, for instance, if someone does not really try to kill himself or herself but just assists another.   There has to be an unconditional commitment on the part of the defendant to take his or her own life, as well as the life of the partner who does it

[1] R v CE HC Palmerston North CRI-2011-054-776, 26 October 2011 where the offender was convicted and discharged.

with him or her.  Of course, sadly, the reason why there are few charges is that when that is the case and two people genuinely try to die together by suicide, they are normally successful.  Where one has died, so does the other.  That has not happened here. You survived.

[13]     I   have   responsible   and   careful   submissions   from   both   counsel   and significantly, the Crown Solicitor correctly, in my view, has not asked for a sentence of imprisonment.  The Crown proposes that the Court should consider a sentence of intensive supervision coupled with community work.   The Crown has emphasised the need to impose a deterrent sentence.

[14]     Mr Niven in his submissions accepts that a sentence of intensive supervision with special conditions is appropriate.  However, he submits that it is not necessary to impose the added sentence of community work.

[15]     It is difficult to apply orthodox sentencing approaches to your sentencing, Ms Robson.   The usual approach of fixing a starting point by assessing factors

relating to the culpability of the offending is awkward in a charge like this where

inevitably, for the charge to be brought, the defendant has been in a state of great distress or depression, or for some other reason has reached the decision to attempt suicide.

[16]     However, some attempt needs to be made to assess the culpability of your offending.  A case where the survivor has been the protagonist, the chief mover and personality will be treated more seriously than if the position is the reverse.

[17]     There is certainly nothing before me to indicate you were the leader in this suicide pact.  It is quite clear from the written material that this was a truly mutual decision.  I am prepared to accept, as Mr Niven has urged me to do, that you did not take a lead role, certainly in what was physically done to bring about the suicide pact.

[18]     The  Crown  has  suggested  that  the  right  starting  point  is  two  years’ imprisonment in terms of culpability.   Doing the best I can, I would assess it at somewhat lower than that, perhaps around 18 months’ imprisonment.  However, as will almost always be the case for this charge, matters personal to the offender must be highly relevant in assessing the end sentence.

[19]     It is recognised that if someone is suffering from a mental disorder when a crime is committed, that can be a mitigating factor.  Illness on occasions can also be a mitigating factor. The courts have to be very cautious in this area because it is easy for a defendant to assert mental illness.

[20]     You are presently receiving treatment for post-traumatic stress syndrome. You were on the methadone programme at the time of the suicide pact.  I am entirely satisfied that you were extremely depressed.   I accept Mr Niven’s submission that you were a drug addict at the time.  Sadly you and P probably fed off each others’ sadness and depression, and this may have compounded matters and made them worse.

[21]     I do think your mental condition and health are a significant mitigating factor, which I take it into account in assessing the correct end sentence.   I also have no

hesitation in accepting that you are remorseful and sad.   Indeed, as the probation officer has said you are “more than remorseful”.  You are distraught and fragile. You have pleaded guilty.  It was you who called the ambulance.

[22]     In  assessing  the  right  sentence  I  have  to  take  into  account  the  need  to denounce what you did.  You planned with another to take away human life, and we must revere and protect human life.  So I need to denounce your act.  It was wrong.

[23]     I also accept what Ms Reed says, which is that there is a deterrence factor. While as Mr Niven says a person who enters into a genuine suicide pact does not intend to survive, the moral wrongness of a suicide pact must be recognised by the courts and by our society.   Strong disapproval of such an act by our community should be a deterrent.

[24]     The Sentencing Act also requires the Court to take into account the offender’s rehabilitation and reintegration.  In certain sorts of offending that can only be given limited weight, but in this offending on this occasion it can be given considerable weight, and I do.

[25]     So, taking into account these mitigating factors I am not going to sentence you to prison.  Intensive supervision is a sentence well suited to your present state. It is in the third category of seriousness in terms of penalties, and as such a very serious penalty.  Your liberty will be considerably constrained for the full two year period that I am going to impose.   You cannot live anywhere that the probation officer disapproves of.  You will have to accept the probation officer’s directions and attend courses as directed by the probation, and you will have to report to that probation officer regularly.   You will lead a life for the next two years very considerably at the dictation of the probation officer.  That is what you need, because you need to stay entirely drug free.  Not just for the two years but for the rest of your life.  You need to find equilibrium so that you can live in our society and contribute to it.

[26]     So intensive supervision is the sentence.  Two years will be the term.  The question is whether I should impose something else.

[27]     The Crown has suggested I consider community work which would involve you, for a period of some months, doing work in weekends on a community basis.

[28]     I am far from certain that you would get much benefit from that, and indeed you might come into contact with those who still have drug problems and might lead to unhelpful associations.

[29]     I am also mindful that you have served two months in prison already on remand on this charge.  I appreciate that was because you breached bail.  Given your drug addiction and the fact that you had gone back to using some drugs while receiving treatment, it was a serious breach, but your addiction at the time has to be recognised.  That two month period of imprisonment is already a significant penalty which you have endured.

[30]     So  on  balance  I  have  decided  that  no  sentence  of  community  work  is required.  Included in the conditions that will be imposed will be a requirement that you abstain from the possession and use of all drugs, and that you attend drug assessments.

[31]     I hardly need to say that the only way in which anything remotely positive can come out of this tragedy is for you to obey the conditions and reform yourself.

[32]     Ms Robson, I sentence you on the charge to two years’ intensive supervision.

Special conditions will apply:

(a)      You are to live at an address approved by the probation officer and you  are  not  to  move  from  that  address  without  prior  written permission of the supervising probation officer;

(b)      You are to abstain from the possession and use of all illicit drugs;

(c)      You   are   to   attend   all   medical,   psychiatric   and   psychological appointments as required and as directed by the supervising probation officer;

(d)You  are  to  attend   all   counselling  sessions   with  a  methadone programme as required and as directed by the supervision probation officer;

(e)      You are to attend a drug assessment with a recognised and approved agency and undertake all counselling including residential rehabilitation as may be recommended by the assessor and as directed by the supervising probation officer;

(f)      You are to attend any other appropriate counseling as may be directed by the supervising probation officer; and

(g)You are not to associate with any person named in writing by the supervising probation officer.

[33]     You may stand down.

……………………………..

Asher J