New South Wales Supreme Court CITATION : Regina v Jans [2000] NSWSC 525 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70053/99 HEARING DATE(S) : 26 May 2000 JUDGMENT DATE : 14 June 2000 PARTIES : Regina v Gunter Detlef Jans JUDGMENT OF : Michael Grove J at 1 COUNSEL : W. Robinson QC (Crown) C. Craigie (Prisoner) SOLICITORS : S.E. O'Connor (Crown) Public Defender CATCHWORDS : Criminal Law and Procedure - Manslaughter - Sentence DECISION : Orders Made. THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION MICHAEL GROVE J Wednesday 14 June 2000 70053/99 - REGINA v GUNTER DETLEF JANS SENTENCE 1 HIS HONOUR: The prisoner has pleaded guilty to manslaughter which plea of guilty was accepted by the Crown in discharge of indictment for murder on the ground that the prisoner has available to him the partial defence of diminished responsibility. 2 The victim was the prisoner's wife, Sophie. The courts are not unfamiliar with crimes involving the killing of a spouse. The culpability of the killer can range between extremes of gravity. In this instance there is an unusual degree of tragedy and I have concluded that the prisoner should have his culpability assessed towards the lower end of the possible range. I will relate some facts and circumstances which have led me to that conclusion. 3 In the early afternoon of 12 March 1999 the prisoner telephoned the 000 emergency service and reported that his deceased wife could be found at their home. Unsurprisingly, communication was garbled but the thrust of it was that he did not want his school student sons to come home and find their mother. He also made reference to the location of his car and some papers within it near Sydney University. 4 Police went to the house and found the deceased. A black handled knife protruded from the chest area. The knife was of the conventional kitchen utensil type. 5 The prisoner was employed on the maintenance staff of Sydney University. Police located his vehicle in accordance with the information provided in the emergency call. While they were inspecting it the prisoner was noticed on the roof of the twelve storey Fisher Library in the University grounds. His behaviour was assessed as manifesting considerable distress and it is obvious that fears were held that he might jump from the roof. He was, however, coaxed away and arrested. 6 He was interviewed by detectives at some length. He did not deny his perpetration of the stabbing and was able to give some description of the surrounding events but there were gaps in his memory. The content of the interview does not suggest that the prisoner was deliberately withholding information from the questioners and I accept his claims as to deficiency of recall. As Dr Westmore commented, the prisoner has some incomplete memory of the stabbing and no memory of getting the knife. He described himself as being in a trance-like state. 7 It appears that the trigger, or at least one of the immediate triggers, for the events which developed into the homicide was an assertion by the wife that the prisoner's sister was feigning serious illness. In fact his sister who resides in Germany is ailing but this dispute was but one incident in a culmination of matters which are of significance in the construct which led to the death. 8 The evidence of Dr Collins, which I accept, shows that it is highly likely that at the time of Sophie Jans' death she was suffering from Huntington's Chorea. This disease manifests itself in bizarre body movements but more importantly it involves dementia. The disease is genetic in origin and it is reported that it is associated with a single autosomal dominant gene with virtually 100 percent rate of manifestation. Therefore approximately half of the offspring of an affected person can be expected to develop the disorder. There is anecdotal evidence that Sophie Jans' father had the disease and clinical evidence that her mother suffered a significant psychiatric condition. 9 Until about five or six years ago the prisoner and his wife enjoyed a satisfactory married life of apparently mutual devotion. They had reared and cared for three sons. Sophie Jans commenced to make unsubstantiated allegations against the prisoner. There is no present need to detail all of them. Prominent among them was an assertion that the prisoner was engaged in homosexual activity including molestation of children. Concurrently he was accused of infidelity in the marriage. Sophie became more and more aggressive and hostile and her berating of her husband came to be accompanied by occasional beating and pummelling. The prisoner sought some advice at one time and was told that he might apply for an apprehended violence order but he was unwilling to do this against his wife. She announced that she intended to seek a divorce. There is no evidence of any conduct by the prisoner which would have provoked this behaviour on the part of his wife nor indeed provoked a wish on any reasonable ground to terminate the marriage. His general response was passivity although, as might be expected, others including the children interpreted some exchanges as arguments between the couple. I am sure there were on occasions as the prisoner's capacity for restraint was eroded by constant harassment and assailment. 10 I am satisfied that Sophie Jans' behaviour was symptomatic of the onset of disease. Complaints by her to others of the prisoner's conduct are likely to be insubstantial products of developing dementia. 11 It contributes to the tragedy that no diagnosis of the disease was made. With hindsight, reasons for this can be discerned. Super added to this illness Sophie Jans developed physical ailment in the form of cancer, the treatment for which included mastectomy and chemo therapy. Understandably her family thought that her odd behaviour and rantings may have been associated with her sufferings from this condition and the radical aspects of its treatment. The eldest son is a professional nurse and he spoke to a number of people, informally I would gather, and suggestions were made of the development of paranoid schizophrenic tendencies. Huntington's Chorea was not identified. 12 I have been presented with a large volume of evidence of observation over this period, very valuable amongst which are the statements by the prisoner and Sophie's three sons. I am satisfied that the prisoner was the focus of repetitive false accusation by his wife and the victim of long standing and sustained violence on her part. No fault attaches to her for this. It can now be judged that her conduct was a result of her illness but as Dr Canaris commented, the prisoner appears to have sought to deal with what was directed at him in a quiet and unassuming way trying to pacify her or making no response. Dr Canaris thought that the prisoner's distress over his wife's demise seemed very genuine and he thought that his account showed that he loved her dearly. It is plain that at the time neither he nor anybody else recognized her descent into dementia. Indeed, in early 1999 Sophie Jans was seeing a counsellor at a community welfare service whose notes suggest that her allegations against the prisoner of bisexuality, sexual abuse, trauma and manipulation were taken at face value. I am satisfied that these allegations were not factual and were the products of mental illness. The counsellor did recognize however that Sophie Jans appeared agitated and secretive at times. 13 All of this information about the affliction of Sophie Jans is essentially relevant only as background to assessing the effect upon the prisoner. Her mental state was a contributing factor in the development of depression in the prisoner. At the time of the killing he was undergoing a major depressive episode. During a period when he was under considerable emotional stress he became in part dissociated and as Dr Neilssen opined, the dissociation resulted in a substantial impairment of the prisoner's awareness and self control at the time of the offence. Dr Neilssen added by way of elaboration that an abnormality of mind of this kind would explain how a dutiful and previously law abiding person might have come to kill his wife. 14 About the event itself, Dr Westmore commented that he thought the prisoner (in the light of the history only a small portion of which I have sketched) experienced a sudden, acute decompensation which overwhelmed his defence mechanisms and which occurred in the face of extreme and for him, intolerable pressure. 15 Psychiatric opinion is unanimous that the prisoner poses no future threat to the community. Dr Canaris wrote that this was a killing which occurred in utterly unusual circumstances and was an event exceedingly unlikely to occur again. 16 The prisoner is fifty five years of age. He has no other convictions. I regard the expressed attitude of the prisoner's sons who have, of course, lost their mother as of prime significance. I would quote from some statements that they have made recently. The eldest stated: "I know what he did was wrong. I am not questioning that but at the same time I know the limit that he was pushed to. He would come home from work for a full day and then do cooking, washing and getting ready for school the next day and try to do everything you can do to please wife and then you get hit upon or verbally abused such as molesting children. It eventually wears you thin. At the same time you go to community supports such as counsellors, doctors, police and you go through all those courses and they do not help. He has always got our support." 17 The middle son described his relationship with his father as "dropped off a lot since this happened" but he concluded: "I understand a bit what happened but I am not 100 percent sure. I think Dad started losing it after Mum starting saying those things and couldn't handle it any more." 18 The youngest, aged fifteen and a school student wrote: "I know what happened was wrong what Dad did but I understand how Dad 'clicked it'. That does happen to some people. I forgive him for that, what he done. He lives with us now. Our relationship is quite good." 19 The prisoner was in custody for close to six months prior to being granted bail and I take that imprisonment into account. 20 I am satisfied that there is no need in any practical sense to construct a sentence directed to the rehabilitation of the prisoner. The prospect of further offence of any kind is predictably remote. As were the medical examiners, I am persuaded that the prisoner is truly remorseful and, as Dr Westmore in particular noted, he has good insight and understanding about the impact of what he has done on his children. 21 All the foregoing having been said, it must not be overlooked that the felonious taking of human life is intrinsically serious. I have given consideration to whether the objective seriousness of so doing and the needs of denunciation and retribution produce an imperative for the imposition of imprisonment, whether to be served full time or in periodic detention. 22 It will never be known exactly what led to the outburst of violence which resulted in fatality nor all of the motivational contributors to it. I am satisfied that the prisoner does not know. There are, apart from the psychiatric opinion which I accept, a number of indicators of the extreme seriousness of the state into which the prisoner had descended. No one who observed the events at the Fisher Library suggested that there was any apparent element of pretence in the prisoner's conduct. His appearance during the police interview would impress any observer as viewing a man in an abnormal state. There are descriptions of tender treatment of the prisoner in custody by those charged with his confinement. The relevance of this is conveniently summarized by Dr Canaris: "The fact that his dissociation was pathological in nature has further emphasised that it appears to have continued for a good couple of weeks or so after the stabbing - witness his account of being in a 'daze' whilst at Silverwater Jail. I was somewhat bemused by his characterisation of the prison officers as 'nice' and 'very helpful'. While I do not wish to demonise prison officers, it is the first time I have heard them described in this fashion over any length of time. It highlights, I suspect, the air of helpless dependence he must have emanated during that time." 23 In general terms, I would be reluctant to conclude that a resort to violence with fatal result could be accompanied by subjective features which could outweigh the objective seriousness so as to avoid sentence of full time custody. In the present case, I am persuaded that the abnormality of mind which reduced the culpability of the prisoner so that what would have been murder became manslaughter was of such scale and extent as also to markedly reduce the level of his culpability for that lesser offence. Although Sophie Jans' illness has the consequence that her conduct was not deliberately provocative, it should not be overlooked that what was directed at the prisoner was an attrition extending for years and eventually he succumbed into a pathological dissociation. 24 I have come to the conclusion that in, to quote Dr Canaris again, the utterly unusual circumstances of this case, the needs of justice will be fulfilled by a conditional release of the prisoner. 25 Gunter Detlef Jans for the manslaughter of Sophie Jans, in lieu of imposing a sentence of imprisonment you are to enter a good behaviour bond for a period of four years from this date upon the following conditions: (1) That you will appear before the Court if called upon to do so at any time during that term; (2) That you will be of good behaviour; and (3) You will inform the Registrar of the Supreme Court of any change in your residential address during the term of the bond. 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