R v SETTE [2000] NSWSC 648

New South Wales Supreme Court

CITATION : R v SETTE [2000] NSWSC 648 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70054/99 HEARING DATE(S) : 03/07/00, 04/07/00 JUDGMENT DATE : 6 July 2000

PARTIES : REGINA v Maria Giulia SETTE JUDGMENT OF : Barr J at 1

COUNSEL : Crown: P J P Power Offender: I D Hill SC SOLICITORS : Crown: Director of Public Prosecutions (NSW) Offender: Balmer & Associates CATCHWORDS : Criminal Law - sentencing - manslaughter - substantial impairment by abnormality of mind. CASES CITED : Regina v Georgina Marie Hill (1981) 3 A Crim R 397 DECISION : See paragraph 50.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

Thursday, 6 July 2000

70054/99 - REGINA v Maria Giulia SETTE

SENTENCE 1 HIS HONOUR: The offender, Maria Giulia Sette, has been convicted of the manslaughter on or about 8 February 1999 at Moama of James Dean Sette, also known as James Jasper Strahan. The offender gave birth to the deceased, James Dean Sette, on 7 November 1997. The child was made available for adoption. In due course adoptive parents were chosen and the child was placed in their care. The adoption regime incorporated a period of time during which the offender was entitled to have access to the child. On Sunday, 7 February 1999 the offender attended a picnic which had been arranged at Daylesford Lakes, Victoria, so that she could have access. Ms Strahan and Mr Gilding, the adoptive parents, attended with the child. The offender removed the child on a pretext, put him in her car and drove away. She stabbed the child to death and concealed his body in a dam near Moama, New South Wales. 2 Put in that way, the facts of the matter seem brutal indeed, but there is much more to say. In order to gain some understanding why the offender acted as she did it is necessary to pay some regard to the details of her personal life and to the circumstances in which she bore the child and permitted it to be made available for adoption. The offender was born on 8 October 1967, the eldest daughter of an Italian family resident in suburban Melbourne. Her father and mother were hard-working people who had strict, traditional, moral views. There were four children of the marriage. The eldest was a son, who was three years older than the offender. The offender was the eldest daughter and the other two daughters were respectively three years and eleven years her juniors. As was traditional in such a family, precedence was accorded to the son. The offender, as the eldest daughter, was expected to take an interest in domestic matters and to assist her mother with the younger children as she grew older. 3 The offender is a woman of average intelligence. She appears to have negotiated primary school successfully but not to have had a fulfilling time in high school. She struggled and had few friends. As she grew up she was sensitive and shy. When confronted with fights or disagreements she usually lost. She would retreat to her room in silence, sometimes for days. Her siblings found it easy to put the blame on her when it suited them. 4 She left school at seventeen and completed a dressmaking and design course, after which she worked for several years in clothing shops and boutiques. She was not happy, however, and frequently came home upset at the end of the day. During her adolescence she had become intensely sensitive about what she regarded as the size of her nose and at the age of nineteen she underwent plastic surgery to alter its size and shape. During all this time she continued to live in the family home, as was expected of her. 5 Apparently in an attempt to break out of her environment, she began associating in her early twenties with a group of people who attended night clubs. They took illegal drugs as well as alcohol and so did she. She retired badly hurt from that milieu after she was raped. The matter was never officially reported, and her experience compounded her shyness, inability to compete and distrust of men. Such relationships with men as she had were short and unsatisfactory. 6 She and the sister closer to her in age were made the joint managers of a family-owned newsagency, but they did not work well together and arrangements had to be changed. This did nothing for her confidence or state of mind. 7 She began to consult a general practitioner frequently for a variety of complaints that suggested that all was not well with her. She complained of persistent insomnia. In 1996 she was referred to a psychiatrist, Dr Leitmanis. No specific psychiatric disorder was diagnosed. 8 In the same year she commenced a relationship with a Sydney man. The relationship was not an easy one, and was apparently punctuated by violence and moodiness on the part of her partner, but the offender valued it. It broke up in 1997 when her partner left her and went overseas. She was badly affected. She suffered something described by one writer as an hysterical fit. On impulse she flew to the United States of America and stayed in an hotel in Los Angeles. She seems to have attempted suicide by overdosing on aspirin and Panadol. Her memory of subsequent events is vague. She arrived in Mexico City, having apparently flown there from Los Angeles. She drifted from place to place. She told Professor Mullen, forensic psychiatrist, that it was as though her previous life had ceased to exist, as though she had died, leaving her problems behind her. After five weeks she returned to Australia and to her family, but told them little of her journey. 9 She discovered that she was pregnant. She was afraid to tell her family. They found out when the truth could be concealed no longer. They were ashamed. Her father and her brother decided what the family would do. The offender would be required to leave the family home and live with her brother, who was then living in another part of Melbourne. The pregnancy of the offender and the existence of the child, in due course, would not be mentioned to visiting relatives and friends. The offender's youngest sister would not be told about it. The child would be adopted. It would be a family secret. The offender would, in due course, forget about the whole matter. 10 There was one girlfriend in whom the offender confided, and she told her that she was devastated by the family's attitude. But she could not fight them and she complied with their wishes. She got in touch with Copelen Child and Family Services, an agency whose responsibility included seeing that appropriate advice and counselling were given and that those things were done which the law required. She told the agency that she wanted to offer her child for adoption when he was born. She already knew that she was to have a son. A social worker was assigned and explained the adoption procedure to her. 11 Her compliance was so great that, in order to avoid unnecessary attachment to her son, she insisted against the advice of her obstetrician on birth by caesarean section under general anaesthetic. Four days after his birth he was put into the care of foster parents pending the making of permanent arrangements. 12 The offender's father and brother did not visit her in hospital and did not see the child. Her sister visited her once. 13 During November 1997 arrangements had to be made for the child to go into foster care and the offender's agreement was necessary, so she had to have contact with Copelen and with a foster care agency. Those dealing with her noticed that throughout the process she seemed evasive. She was reluctant to give her address and wanted to maintain contact only by mobile telephone. She would not provide an address for the purposes of birth registration and would not give any details about the father. 14 A month after the birth, the offender ran away again. Impulsively, frightened and distressed, she drove to Portarlington where she drifted between motels for two weeks. Again, she attempted suicide by overdose. She called herself by a different name. As before, she equally suddenly returned to the family home. 15 On 16 December 1997 the offender signed an adoption consent at the County Court in Melbourne. She was informed that she could revoke her consent within twenty-eight days and about other rights, but she did not exercise them. In January 1998, after the time for revocation had expired, she was asked to sign a further form upon which it was customary for the parents of children to write something about themselves, their family and about the birth father. The offender refused to provide any such details and insisted that the agency move faster in the adoption process. There was another delay and the offender told Mr Kealy, the principal officer at Copelen, that she should have had an abortion, that it was so hard and taking far too long. In due course she was invited to select one out of eight families, whose details were provided to her, to be the adoptive parents. She chose Ms Strahan and Mr Gilding. Later on she was told they wanted to retain the child's surname as a middle name but she was adamant that she did not want them to do that. It was obvious to Mr Kealy that the offender was having difficulty coping. He sensed that she had not received much care on an emotional level. She told him that she was "just hanging in". 16 On 27 February 1998 the child was placed with Ms Strahan and Mr Gilding. They had been introduced by Centacare Catholic Family Services Adoption and Permanent Care. Centacare sent monthly progress reports and photographs to the offender as well as other details, including information about Ms Strahan and Mr Gilding. All this information was sent to an address at Port Melbourne, which was the address of the friend of the offender to whom I have previously referred. It was the only address the offender was prepared to use. 17 None of the offender's family knew of these communications and I accept that they would have disapproved if they had known. At all relevant times the offender was living in the house of her parents or her brother and I think that she was at pains to avoid the risk that any relevant material might be sent to those places and remind her family about the taboo subject. 18 The offender went overseas for some time and returned in or about September 1998. She got in touch with Copelen and Centacare and said that she wanted the child back. She was told that that was not possible and she requested access. That was something to which she was entitled under the terms of the adoption protocol. Ms Allen of Centacare told her that Ms Strahan and Mr Gilding wanted to meet her and develop a relationship with her. 19 A meeting was arranged between the three of them and the child at Centacare's office on 5 October 1998. After that the offender went to Copelen and wanted to talk to Mr Kealy about having the child returned to her care. She told Ms Allen that she wanted her to be an intermediary between herself and the adoptive parents and asked her to stop Mr Gilding telephoning her direct. Arrangements were attempted for a second meeting, and it was ultimately held at a house at Bells Beach on 8 November. That, apparently, was the house of the offender's friend. Throughout these times the offender was refusing to provide the agencies with her address, consistently with her wish to conceal these matters from her family. 20 Ms Allen continued to be concerned about the attitude of the offender and thought her unprepared for the finalisation of the adoption. 21 The third meeting was arranged and eventually fixed to take place at Daylesford. 22 During the meeting Ms Strahan asked whether she might take a photograph of the offender and the child together. This was a request made in good faith and was one which the offender had previously refused. She believed, mistakenly I think, that she would not see her son again. She made an excuse to take him to her car. She drove him away from Daylesford. She had with her a kitchen knife that she had taken to use at the picnic. The details of what followed have to be inferred from things the police found in due course, but it seems clear that the offender stabbed the child a number of times in the chest with the kitchen knife and caused his death. That probably took place in the car. She took the body of the child and placed it a dam in the Perricoota State Forest, near Moama. 23 On 8 February 1999 police found her and her car at a motel at Moama. She told them that she had taken the child to his father. The front passenger's seat of the car was covered in blood and she was unable to explain how it had got there. She agreed to go to Echuca police station and underwent an interview during which she persisted in the patently untrue story that she had taken the child to his natural father. She also said that she and the father had planned to arrange an adoption different from the one that was on foot. She said that she happened to be in Moama because she had run out of petrol at Deniliquin on the way home from Sydney to Melbourne. The parts of that story that were not immediately obviously untrue were soon established to be untrue. The police got in touch with the father, who confirmed that he did not have the child. The offender received that news with a remark that he was lying. 24 A second interview took place on the following day, but produced nothing significantly different. In the meantime, searches were going on for the child, who was suspected to have died. 25 The child's body was found and a third interview took place between the offender and a police officer, this time in Melbourne. The offender told the police of her belief at the picnic that she would not see her son again, so she took him to the car and drove away. She was unable to give any coherent account about where she had taken the child. She said that she had got lost and driven around aimlessly. She said that after seeing a sign to a forest she had looked for a nice picnic area where she could spend some time with her son. When they were there he had called her "Mummy" for the first time. After that she could not recall exactly what had happened but she could remember placing her son in the dam before sitting on a hill and crying. She said that she did not know how the child had received his stab wounds but was aware that he was not moving when she placed him in the dam. She told the police that the blood on the passenger's seat was the child's blood. 26 The Court has been assisted by the tender of a large amount of evidence of psychiatric opinion. There is no substantial difference between the opinions of the different expert witnesses and it is upon such evidence that the plea of guilty of manslaughter was made and accepted. Professor Mullen was the first psychiatrist to interview the offender about this matter. He reviewed the offender's family, academic, work and social history. He observed that when interviewed she made a curious impression by presenting with a brittle cheerfulness and a totally inappropriate casualness verging on detachment. At other times she would become intensely distressed. He considered that there were clear indications of significant depression. He thought that there was a history of depressive episodes. The first was probably in July 1996 when she was referred to Dr Leitmanis. The most severe occurred in 1998, when her sleep was severely disturbed and she ruminated on suicide. He considered that she was preoccupied with a sense of failure and guilt at that time, specifically related to giving up her baby for adoption. 27 Professor Mullen identified the flight of the offender to the United States of America and Mexico, her flight to Portarlington and the events of 7 February 1999 as fugues. Fugues are generally regarded as episodes of disturbed consciousness and disturbed behaviour which can occur in the context of a range of mental disorders. A fugue is a state to which certain vulnerable kinds of personality are predisposed. It is in a sense the extreme of a not uncommon tendency to respond to stresses and difficult situations by denial and avoidance. Those in a fugue state have a disturbed state of consciousness and their judgment and appreciation of reality are significantly disturbed. 28 The fugue is understandable at one level as an escape. In the offender's case, the first two fugues involved a suicide attempt. Some writers, Professor Mullen said, have conceptualised fugues as a suicide equivalent and both suicide and fugues represent a flight from an intolerable reality. In his experience, fugues are most commonly seen emerging out of significant depression in vulnerable personalities. In his opinion the fugues in the present case had those characteristics. 29 Professor Mullen is of the opinion that at the time of the meeting at Daylesford the offender was suffering from a significant degree of depression. She was also facing a crisis which she was quite unable to accept, let alone to cope with. Having impulsively abducted the child, she transformed a difficult situation into one incapable of resolution. The combination of the stress, her state of mind and her vulnerable personality precipitated her once more into a flight from her dilemma and from her emotional turmoil. Then she travelled aimlessly until she reached the forest at Perricoota. 30 Professor Mullen's opinion was that the offender's state of mind would have been significantly disturbed over the period of the killing, though not enough to deprive her of the capacity to form intentions and carry through purposeful actions. She was cut off to a great extent from an awareness of who she was and of her past. She had a reduced perception of immediate realities and of the implications of her actions. 31 Professor Mullen thought it typical of those who have been in a fugue state to have partial or even totally absent recall for significant periods during the period of fugue. Like the investigating police officers, he tried to get the offender to explain how she killed the child. Like them, he was unsuccessful. Whenever he pressed her on the facts he was met with silence, with tears or with an express inability to remember. 32 It might be thought that the offender's claim to amnesia was false in view of the facts that it was about her own recent acts that she was being asked and that on 8 February 1999 she had been prepared to lie in a serious and misleading way when asked about where the child was. However, Professor Mullen observed that her disturbed memory was not confined to the killing and its aftermath but was greater for the hours prior to her arrival at Perricoota Forest. That was consistent with a diagnosis of fugue. 33 Professor Mullen thought it reasonable to conclude from the fabricated account given by the offender on 8 February 1999 that she was aware at the very least that she had committed an act which she hoped to hide. He thought that she had some awareness, however rudimentary, that she had killed the child. However, he thought that conclusion not incompatible with her having been affected by a fugue state at the time of the killing. 34 The offender saw Dr Barry-Walsh at the request of the Crown. He, like Professor Mullen, noted her history and the improbable quality of her mood when being interviewed. He thought that the flight to the United States was not a fugue state but that the flight to Portarlington after giving up her child was more consistent with fugue. He thought that the offender's state of mind after she took the child from Daylesford was possibly a fugue state. He commented on the impulsive decision, on the fact of little coherent memory of her subsequent actions and on the lack of recall of the attack itself. He considered it consistent with a mild depressive state superimposed on a chronic dysthymia. He thought that the history that the offender gave and the evidence of her subsequent actions, including the comments of witnesses that she stared and behaved as though in a trance, were consistent with a woman in a significantly dissociated state. He considered that she would have begun dissociating at the time she impulsively took the child. 35 Dr Barry-Walsh thought that the offender suffered from significant psychological disturbance. She had significant personality disorder. There had been periods of depression in addition to her typical pattern of emotional instability or dysthymia. Although she had the capacity to act in a purposeful and intended way her capacity to function in a cohesive, organised, planned and appropriate manner was impaired. That impairment extended to her capacity to exercise her judgment and think rationally about her predicament. Her behaviour represented a characteristic attempt to flee from an intolerable situation and diminished her appreciation of her actions at the time. 36 Dr Walton, another psychiatrist, has seen the offender eleven times since 16 February 1999. He agrees with the diagnosis of depressive disorder and considers the offender's memory gap possibly indicative of a dissociative state. Like the other psychiatrists he considered that she was sufficiently mentally disorganised to be described as exhibiting an abnormality of mind at the material time. 37 Mr Joblin, a clinical psychologist, thought that the offender was suffering from severe psychological dysfunction. 38 The evidence establishes that the offender killed her child, intending to kill him and that at the time her capacity to understand events and to judge whether her actions were right or wrong was substantially impaired by her underlying condition of mind. 39 Sentencing in cases like the present begins with the recognition that there has been a felonious taking of a human life, here with intent to kill. The range of sentences is wide and depends to a significant degree upon the degree of impairment of the offender's capacity and the effect it has upon the assessment of her criminal responsibility. A second important factor is the recognition of the need, where it exists, to protect the community. That need must be assessed at least partly by reference to the nature of the impairment of the offender's mental capacity. 40 In Regina v Georgina Marie Hill (1981) 3 A Crim R 397 Street CJ said at 402 - The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act , 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party. In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life. 41 There is a great variety of activities which may constitute manslaughter, ranging from the morally almost innocent to the seriously culpable. It is for that reason that it is almost impossible to detect any clear pattern of sentencing for the crime of manslaughter. In such a case it is necessary to respect the community interest and the need for a deterrent sentence on the one hand, but to balance against that the particular circumstances of the case, objective and subjective. 42 A sentence can only have a deterrent effect to the community at large where the community can appreciate that there is a real degree of culpability on the part of the offender. Where the actions of the offender approach the morally innocent, little is demonstrated to the community by way of deterrence in the imposition of sentence. 43 The killing was impulsive. The reduction in the offender's moral responsibility was great. She had been forced into an adoption she never approved of. She utterly lacked emotional support and she had to cope with the increasing problems posed by the adoption, which she was quite unable to solve. In this respect and in the other respects I have mentioned the case is quite extraordinary. An offender whose moral responsibility is so reduced by the presence of the incapacity she is demonstrated to have had is not in my opinion an appropriate medium for making an example to others. 44 I accept that there is no need for the sentence that I shall impose to deter the offender herself, for I do not believe that she will reoffend, or to protect the public. 45 The offender is now with her family once again. They have realised their error. They are supporting her at home and at work. They are encouraging her to undergo psychiatric treatment. She is seeing Dr Leitmanis regularly and taking his advice. I accept the evidence of Professor Mullen that her condition is treatable. The depression can be treated with a long-term course of drugs and she can be assisted with counselling and active psychotherapy to learn how to cope more effectively with everyday pressures. 46 The subjective features of the case strongly favour the offender. She pleaded guilty as soon as there existed evidence to justify a conviction for manslaughter. She is still young. She is of prior good character. She has no history or reputation for aggression or violence. As I have said, she is not a danger to society. Her rehabilitation is well in hand and she is receiving appropriate medical advice and treatment. 47 The Crown pointed to the fact that there was little articulated awareness on the part of the offender of the suffering she had caused to others. That is so, but I think that Professor Mullen is correct in thinking that the circumstances of the killing are so horrific for her and so overwhelming that she cannot respond other than with silence or tears. I accept that the offender is remorseful. She finds herself unable to talk about the facts of the killing, of course, but I accept that she was telling the truth to Professor Mullen when she said that she was feeling hopeless, and overwhelmed by guilt. I accept that her amnesia is genuine. 48 Before I pronounce sentence I should like to say something about the other people who have been affected by the death of this little boy. There must be many of them. The two most important are Ms Strahan and Mr Gilding. The child had been with them for a year. They were not responsible for the circumstances that led to this tragedy. Although the process of adoption was not quite complete, they regarded the child in every way as their own, as they were entitled to do. They suffered the pain of his loss. They suffered the anxiety and uncertainty which followed his abduction and the false reports of his whereabouts. They had to face the fact of his death. They will continue to suffer for a long time. It is appropriate for public acknowledgment to be made of these matters. I extend to them the sympathy of the Court and hope that they, too, will be healed in time. 49 In my opinion this is such an unusual case that a sentence of full-time custody is not called for. I propose to impose a suspended sentence on conditions including one which will promote the rehabilitation and treatment of the offender. 50 Maria Giulia Sette, I sentence you to imprisonment for a term of two years, commencing today and expiring on 5 July 2002. I suspend execution of the sentence for the same period of two years and direct that you be released from custody on condition that you enter into a bond for the same period of two years. The bond will contain the following conditions -