R v Shirley JUSTINS [2008] NSWSC 1194

New South Wales Supreme Court

CITATION : R v Shirley JUSTINS [2008] NSWSC 1194

HEARING DATE(S) : 24/10/2008

JUDGMENT DATE : 12 November 2008

JUDGMENT OF : Howie J at 1

DECISION : The offender is sentenced to a non-parole period of 22 months with a balance of term of 8 months. The sentence is to be served by way of periodic detention. The sentence is to be served at the Tomago Periodic Detention Centre and is to commence on 21 November 2008. The offender is to be released to parole on 20 September 2010.

CATCHWORDS : Criminal Law - Sentence for manslaughter after trial.

LEGISLATION CITED : Crimes Act 1900 - s 31C(1) Criminal Code (Cth)

CATEGORY : Principal judgment

R v Hood [2002] VSC 123 CASES CITED : R v Nekuda (1989) 39 A Crim R 5 R v Garforth (NSWCCA, unreported, 23 May 1994)

PARTIES : Regina v Shirley Justins

FILE NUMBER(S) : SC 2007/3825

COUNSEL : M Tedeschi QC with S Dowling - Crown P Bodor QC with P Saidi - Offender

SOLICITORS : S Kavanagh - Crown M O'Brien - Offender

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

HOWIE J

WEDNESDAY 12 NOVEMBER 2008

2007/3825 REGINA v SHIRLEY JUSTINS

REMARKS ON SENTENCE 1 HIS HONOUR: On 19 June this year the offender, Shirley Justins, was found guilty by a jury of the manslaughter of her partner Graeme Wylie. The same jury convicted a co-offender, Caren Jenning, of being an accessory before the fact to that manslaughter. After the jury verdict was returned and before the sentencing proceedings commenced, Ms Jenning committed suicide. I am now to sentence Ms Justins for her involvement in the unlawful killing of the deceased. 2 On 22 March 2006 the deceased died from a lethal dose of a substance known as Nembutal, being the drug Pentobarbitone. This is a substance used in Australia in veterinary services for putting down animals. It is not otherwise available to members of the public in this country. Ms Jenning had obtained the drug in Mexico. She travelled to that country for the purpose of purchasing the drug so that it could be used to end the deceased's life. Ms Jenning then unlawfully imported the drug into Australia and ultimately supplied it to the offender. It was accepted by the Crown that the deceased voluntarily drank this substance that had been provided to him by the offender. She intended that he should drink the drug and die as a result. The Crown accepts that the chief motivation of the offender in providing the drug to the deceased was so that he could take his own life in accordance with what she believed to be his wishes. 3 The offender was arraigned before the jury on an indictment containing a count of murder. There was an alternative charge of aiding and abetting the suicide of the deceased contrary to s 31C(1) of the Crimes Act (NSW). Ms Jennings was charged with importing the drug contrary to the provisions of the Criminal Code (Cth) and an offence of being an accessory to the fact of the murder allegedly committed by Ms Justins. There was also an alternative count of aiding and abetting the suicide of the deceased. 4 On arraignment both offenders pleaded not guilty to all charges. Counsel for each of them opened to the jury denying that his client had any involvement in the death of the deceased. However, in the second week of the trial they were both re-arraigned before the jury at their own request. Ms Justins pleaded guilty to the offence of aid and abet suicide but the Crown refused to accept that plea in discharge of the indictment. Ms Jenning pleaded guilty to the importation offence. The trial on the charge of murder and accessory before the fact to murder then continued. Very late in the trial the Crown indicated that it intended to have the jury consider the charge of manslaughter in respect of the offender based upon gross criminal negligence. It asked that the indictment be amended to add a count of accessory before the fact to manslaughter in respect of Ms Jenning. This occurred and ultimately the jury brought in their verdicts in relation to the manslaughter of the deceased. 5 The issues ultimately left to the jury were, first, whether the Crown could prove that the deceased's mental state at the time of consuming the drug was such that he did not have the capacity to determine to take his own life and, if so, secondly whether Ms Justins or Ms Jenning were aware of that fact. In deciding that Ms Justins was guilty of manslaughter the jury must have been satisfied beyond reasonable doubt that the deceased lacked the capacity to make an informed decision to end his life by consuming the drug proffered to him by the offender. The jury must also have been satisfied that a reasonable person in the position of the offender would either have been aware of that fact or would have made inquiries to determine whether the deceased had that capacity. In relation to Ms Jenning the jury must have been satisfied that she knew that the deceased lacked that capacity even though the offender may not have had that knowledge. 6 At the time of his death the deceased was aged 72 years. He was a retired commercial airline pilot suffering from Alzheimer's disease. The offender was his de facto partner of about 20 years and Ms Jenning a long-term close friend of the deceased. At the time of his death he had two adult daughters from a previous marriage and there were two sisters living in Tasmania. He had been a man of very strong and somewhat particular opinions with an almost obsessive interest in audio-electronics. He was so determined to have his own way in relationships that he literally turned his second wife out of the matrimonial home when she expressed a desire to have children contrary to his wishes. 7 It is unnecessary to detail the medical and other evidence relating to the deceased's deteriorating mental faculties since November 2000 and particularly after he was diagnosed as suffering from Alzheimer's disease in March 2003. He was generally under the care of the staff of the Cognitive Disabilities Clinic (the CDC) at Concord Hospital at the time of the diagnosis through until August 2005. His general practitioner throughout this period had been Dr Russell in Cammeray. However, from August 2005 the deceased attended a general practitioner, Dr Gupta, who had been the doctor who had treated the offender when necessary. From this time the deceased no longer remained in contact with Dr Russell or the staff at Concord Hospital. 8 In 2001 Ms Jenning attended her first euthanasia workshop with Exit International Australia and became an officeholder of that organisation in 2004. This was an organisation the members of which believed that persons in the community should be given the opportunity to commit suicide if they believed that they would rather die than continue living because of illness, pain or suffering. One of the principal persons in this organisation was Dr Philip Nitschke a well-known spokesman on the issue of euthanasia and suicide. 9 Between 2002 and 2005 the deceased's decline in his mental facilities was fairly rapid eventually resulting in his abandonment of his long-held interest in electronics. He stopped reading newspapers, had very limited conversation and at times appeared disoriented. As a consequence he became increasingly more depressed. By January 2005 testing at the CDC indicated severe cognitive impairment. 10 In September 2005, while the offender was away from home, the deceased attempted to cut his wrists. The offender took him to Dr Gupta who found that he had superficial lacerations to both wrists. 11 Toward the end of that month the deceased expressed an interest in travelling to Switzerland to an organisation called Dignitas that lawfully assisted and supervised persons who wished to take their own lives. The offender and Ms Jenning started gathering material to support that application. In October the offender completed an application to Dignitas on behalf of the deceased. For this purpose she obtained medical reports from Dr Russell. Ms Jenning told a member of the staff at Concord Hospital that the deceased needed reports and a prognosis as to his condition because he and the offender were to travel overseas. 12 In November 2005 the deceased and the offender attended Dr Gupta to obtain a medical report as to the deceased's mental health for the purposes of the application to Dignitas. There was a dispute between Dr Gupta and the offender at the trial as to whether the doctor was aware of the purpose to which the certificate was obtained. That month the offender paid Dignitas 1000 Swiss Francs. 13 The deceased's daughters were aware of the application and supported his wishes, although somewhat reluctantly. The deceased's sisters were also made aware of the application and spoke to him about it. They indicated their support, as they believed that it was what the deceased wanted. 14 On 8 November 2005 Dignitas requested the assistance of Dr Nitschke in assessing the application because the deceased was suffering from Alzheimer's disease. On 16 November Dr Nitschke examined the deceased and, notwithstanding that he was unable to remember his date of birth or whether he had any children, Dr Nitschke advised Dignitas that the deceased had sufficient insight into his condition to support his application. At about this time Ms Jenning cautioned Dr Nitschke about one of the deceased's daughter's, Tania, who Ms Jenning believed would cause trouble. 15 In early December 2005, the application to Dignitas was refused on the basis that the organisation had doubts about the deceased's capacity to make the decision to end his own life. The offender accused the daughter Tania of interfering and swaying Dr Nitschke against supporting the application. The deceased spoke to his sisters about his disappointment that the application had been rejected and indicated that he would have to look for other ways and means. 16 In January 2006 the offender contacted a solicitor, Ms Favretto, about the deceased's will. It is clear that by this time the offender and Ms Jenning were considering, what members of Exit called, the "Mexican option"; that is obtaining Nembutal from Mexico where it could be purchased over the counter from Chemist shops. A publication by Exit in evidence before the jury discussed the use of this drug. It was apparently very foul tasting such that it was generally impossible to keep it in the stomach once swallowed. Therefore, in order to suppress the body's natural reaction to expel the drug through vomit, it was necessary that, some days before drinking the Nembutal, the person take an antiemetic. 17 In February 2006 the deceased had a fall in a shed under his house. This occurred during a suicide attempt when he attempted to poison himself with the fumes of a lawnmower purchased for that purpose. He was described at that time as suffering from mild to moderate dementia. While the deceased was recovering in hospital the offender and Ms Jenning met with Dr Nitschke to discuss a further application to Dignitas. Dr Nitschke was less than enthusiastic about the prospects and the next day, 16 February, Ms Jenning booked a flight to Los Angeles for departure on 13 March 2006. The offender paid for the ticket. Nothing was said by the offender or Ms Jenning to any person, including Dr Nitschke, about the plan to end the deceased's life by the use of Nembutal. 18 The deceased was discharged from hospital on 20 February and returned to his home. He needed the assistance of a walking frame. On 23 February the offender visited Dr Gupta and complained that the deceased was nauseous since his discharge from hospital. The doctor prescribed Maxalon, an antiemetic. 19 On 1 March 2006 the offender made an appointment for the deceased to see Ms Favretto, the solicitor. On 3 March the deceased and the offender attended on Ms Favretto for the purpose of having his will changed. The deceased had made a will in 1995 by which he left his estate divided as to 50 per cent to the offender and, as to 25 per cent, to each of his daughters. There was a provision that the house was to be sold one year after his death. The offender produced this will and indicated that there were a "few changes" to be made to it. The deceased told Ms Favretto that he wanted nothing left to his children but the offender suggested that they should each receive $100,000. Ms Favretto was not made aware that the deceased was suffering from Alzheimer's disease or of the plan to end his life shortly after the making of the will. 20 Ms Jenning flew out from Australia to Los Angeles on 13 March. The next day she travelled to Tijuana Mexico where she purchased the bottle of Nembutal that she later brought into Australia and gave to the offender. On this same date the offender obtained a certificate from Dr Gupta to the effect that the deceased was "capable of making his own decisions and understanding the nature of those decisions". The certificate had been obtained at the suggestion of Ms Favretto as independent evidence of the deceased's testamentary capacity at that time. Dr Gupta gave evidence that he did not know the purpose of the certificate. 21 On 15 March the deceased and the offender attended upon Ms Favretto and the new will was executed. Although the deceased appeared to read over the will before signing it, the offender knew he was no longer able to read. Ms Favretto was not made aware of the deceased's mental deficiencies in this or any other regard. The will left the whole of the deceased's estate to the offender except for $100,000 bequeathed to each of his daughters. The offender conceded in evidence at the trial that the deceased did not then have testamentary capacity. 22 Ms Jenning returned to Australia on 18 March and met up with the offender to give her the bottle of Nembutal. The next evening she had dinner with the offender and the deceased and reminded them that the deceased had to take the Maxalon for a few days before drinking the Nembutal. On this occasion Ms Jenning gave the offender a copy of a newspaper she had brought with her from America in which there was an article warning of the dangers of Aricept the medication that the deceased was prescribed for the Alzheimer's disease. The offender and Ms Jennings made plans for the death of the deceased the following Wednesday and arranged to have alibis for that date. Ms Jenning was to receive the Nembutal bottle after its use and to dispose of it for the offender. 23 On 22 March 2006 the offender provided the deceased with a glass containing the Nembutal and watched him drink it. Her evidence was that he died within a few seconds of having taken the poison. She then left the premises taking the bottle and the glass with her and later giving both to Ms Jenning. The offender then went on a shopping excursion with a friend as she had earlier planned. Ms Jenning attended the theatre. 24 At about midday the offender returned to the house. She phoned a doctor at Cammeray to attend for the purpose of obtaining a death certificate. However that doctor would not furnish a certificate stating the cause of death, as she had not been treating the deceased. Other inquiries were made by the offender trying to obtain a death certificate in the hope of avoiding an autopsy but to no avail. Eventually the police arrived. By that time Ms Jenning was at the premises. She told police that she believed that the Aricept medication was the cause of death and produced the article in the newspaper. 25 On 24 March an autopsy was carried out on the deceased and the presence of Pentobarbitone in a lethal dose was discovered. 26 On 13 April the offender informed one of the deceased's daughters about the contents of the new will. On 19 April Ms Jenning sent an email to Dr Nitschke's partner about the deceased's daughter Tania. 27 The deceased's daughters lodged a caveat against the estate on 24 May 2006. On 1 June Ms Jenning advised Dr Nitschke of the dispute over the will and noted that "they" owed him money. She expressed concern that Dr Nitschke's medical reports might be subpoenaed. On 5 June the offender commenced action in this Court for administration of the will. 28 On 13 August 2006 Ms Jenning emailed a friend seeking information on news items current on the 18th and 19th of the previous March so that she could give evidence as to what she and the deceased "would have" spoken about. She was supplied with the means of obtaining that information. On 6 September there was a phone call between Ms Jenning and the offender concerning these news items. The offender gave evidence that this was part of an attempt by Ms Jenning, to which she was a party, to fabricate evidence for use in the proceedings in this Court about the March will. Two days after the phone call Ms Jenning drafted a letter to a solicitor indicating that she had spoken to the deceased shortly before his death about various items of news that were current at the time. 29 Both the offender and Ms Jenning were interviewed by police and denied any knowledge or involvement in the circumstances leading to the death of the deceased. This was the stance that they both took at the start of the trial. 30 The trial of the offender and Ms Jenning was apparently seen by some members of the community as a test case about the morality of euthanasia or the right of a person to take his or her own life. It was no such thing. As I explained to the jury, the issue in the trial concerned the right of the deceased to make the decision for himself and not have it made by someone on his behalf. If the deceased had the capacity to make an informed decision to take his own life, then it was his act and the offender was guilty only of assisting him. But if he did not have that capacity, then it was the act of the offender that intentionally took his life regardless of whether he would himself have made the same decision. The law holds human life so sacred that a person cannot give some other person permission to take his or her life. 31 The law of this State is clear. It is a criminal offence carrying a maximum penalty of imprisonment for 10 years to aid or assist a suicide. This offence was created when Parliament repealed the offence of suicide. It is for Parliament to change the law. Persons in the community, who choose to disobey the law, do so at the peril of being treated as a criminal and punished accordingly. As the evidence finally emerged, and as the offender's plea to the charge of aiding suicide indicated, both the offender and Ms Jenning had been engaged in serious criminal activity leading to the death of the deceased. This included the importation by Ms Jenning of a banned substance into Australia and the offender's involvement in that crime. The only real issue for the jury to decide was what offence the two had committed in bringing about the death of the deceased. 32 Although Ms Jenning was charged as being an accessory to the actions of the offender, to a significant extent she was more criminally liable for the death of the deceased. It is one of those, perhaps rare, cases where an accessory would have deserved greater punishment than the principal. Ms Jenning has been portrayed in some of the media as a person who was unjustifiably mistreated by the police and prosecution. It seems that her daughter thought this to be the case. But there is simply no basis for such an allegation from any of the material placed before the jury at the trial. The evidence of her guilt in respect of the importation of the drug and her assistance and encouragement in the death of the deceased was overwhelming. 33 Had she been half honest with those representing her Ms Jenning could possibly have avoided the strain of a criminal trial. Yet she persistently lied throughout the investigation of the matter and during the course of the trial. From what I saw and heard she was, so far as the death of Mr Wylie was concerned, a manipulative and thoroughly dishonest woman who had no compunction about her conduct even to the extent of fabricating evidence to be used in this Court in the contest over the will. She refused at any time to accept any responsibility, either legally or morally, for the death of the deceased. She was a highly intelligent woman yet maintained apparently to the end that she had not assisted in the death of the deceased because she did not hand him the poison. 34 I make these comments not by way of speaking ill of the dead, but because it is important to consider Ms Jenning's character and conduct when determining the criminality of the offender and contrasting their behaviour at the trial. They were in a joint criminal enterprise to bring about the death of the deceased. But despite being charged as the principal, the offender was not the moving force behind the events leading to his death after the rejection of the Dignitas application. I have no doubt that the Mexican option was Ms Jenning's idea, to some extent motivated by her desire to obtain the drug for herself, even though she swore to the jury that she had purchased only one bottle. I cannot help but think that Ms Jenning's motivation in assisting in the obtaining of the Nembutal was not merely altruistic. 35 On the other hand I believe that the offender was motivated in her actions because she believed that this what the deceased wanted. In part it was a reaction to the relationship that had existed between her and the deceased for most of their life together. The deceased had always got his way and he and Ms Jenning were the dominant forces in the relationship between the three. I believe that Ms Jenning retained her dominant position even when the deceased declined in health and mental capacity. It was she who organised the circumstances surrounding the killing and she who came up with the explanation for the death based upon the drug Aricept. It is clear from the taped conversation between the two that Ms Jenning was the moving force in their attempts to manufacture evidence. 36 I believe that, in the weeks preceding his death, the deceased was completely vulnerable and, to a very substantial degree, reliant upon the offender in a way foreign to their previous relationship. It was in the changed dynamics between the two that the offender raised the issue of her position after his death in relation to the house. I believe it was the offender's idea that the will should be changed to put her in an unassailable position after his death. In evidence she expressed the belief that she was entitled to stay in the house because it had been, in effect, their matrimonial home for almost 20 years. 37 However I do not find that the offender was motivated in bringing about the deceased's death by financial gain. The relevance of her conduct surrounding the changing of the will is that it shows the degree of preparation and planning that she undertook. It also reveals the extent to which the deceased's mental state had been diminished and his personality altered. 38 It is clear to me that as part of the planning for the death of the deceased the offender went out of her way to isolate him from anybody who might interfere in her plans. I do not accept the offender's account that this was all at the behest of the deceased. In any event, at least after he was released from hospital, the deceased did not have the capacity to make such decisions. Rather the offender embarked upon a course of deception. She misled persons such as Ms Favretto by failing to disclose relevant facts. She was prepared to rely upon the irresponsibility of Dr Gupta to get what reports she needed. 39 It is perhaps not unusual for a person to go about his or her unlawful conduct in secret to avoid being frustrated in achieving the criminal purpose. But of concern in the facts of this case is the offender's treatment of the deceased's daughters. They had a powerful interest in what was done to their father. It seems that the offender, unjustifiably, blamed Tania for the failure of the Dignitas application. There was further some friction between the daughters and the offender because, rightly or wrongly, they did not believe that the deceased was getting adequate support and assistance. The result was that neither of the daughters was informed that her father was in hospital following the second suicide attempt for some days after his admission. Given the deceased's mental state at that time it was no excuse to say that their father did not want them told, even if I accepted that explanation. 40 The offender and Ms Jenning planned over some months to bring about the death of the deceased without revealing those plans to the daughters. This was selfish and cruel. The offender deprived them of the opportunity of saying good-bye to their father and of preparing themselves for his death. This aspect of grieving is not uncommon in cases of sudden death through accident or criminal conduct. But this was not a case of sudden death and I have no doubt that the offender intentionally sought to distance the deceased from what she saw as interfering conduct of the daughters who were genuinely concerned for his welfare. The offender could have had no doubt of their love for him. 41 The jury could have come to its verdict of manslaughter in one of two ways: either (a) because a reasonable person would have known that the deceased lacked capacity to make the decision to take his own life, or (b) a reasonable person would have made inquiries to ensure that he had that capacity before providing him with a poison. It may not matter in assessing the offender's criminality to determine what the jury found. However, it is instructive that the jury reached the view that Ms Jenning knew that the deceased lacked capacity. That finding might on first blush seem inconsistent with their finding in respect of the offender's mental state. But the difference can be explained in that Ms Jenning was more objective in her assessment of the deceased than the offender in the last weeks of his life. There was evidence before the jury that a carer might less readily appreciate the deterioration in a person's mental state. The jury asked a question about this piece of evidence. I believe that the jury concluded that a reasonable person in the offender's position would have realized that shortly before his death the deceased lacked the capacity to make a decision to end his life as Ms Jenning did. 42 One of the principal factors in sentencing for manslaughter is the need to denunciate the unlawful taking of human life whatever the circumstances of the death. Yet those circumstances can vary so dramatically that the whole range of sentences are available to a court sentencing for that offence, notwithstanding that the maximum penalty is imprisonment for 25 years. Manslaughter by gross criminal negligence is a rare type of manslaughter usually seen only in motor manslaughter cases. The circumstances of this particular manslaughter are unique and, therefore, little assistance can be gained from sentences imposed for other offences. It is also very rare to have a case of aiding suicide before a court. Therefore there is no assistance to be gained from sentences imposed for that offence, which, as I have already indicated, carries a maximum penalty of imprisonment for 10 years. The court therefore must approach the sentencing of the offender relying upon basic sentencing principles. 43 As I have said, denunciation is an important consideration especially where, as here, the taking of life was the intended result of the offender's carefully planned and deceptive conduct carried out over a number of months. In this case general deterrence is a very significant matter. Normally members of the public would appreciate what conduct is criminal and understand that if the offender is detected he or she will be punished. But in this case there appears to be an attitude which found its expression in some of the media coverage of the trial and its aftermath that somehow the conduct of the offender and Ms Jennings was justifiable or at least of a different moral order than other criminal conduct that results in the loss of life. 44 The sentencing of the offender must make it clear that this is not so. The calculated and unlawful taking of human life is an affront to every aspect of civilized society. The general stance taken in this community is that the imposition of the death penalty upon criminals is unjustifiable and morally repellent such is the accord given to the sanctity of human life. There are very stringent limits imposed by the law upon the taking of life even in justifiable defence of the person. Heavy sentences are imposed upon persons guilty of manslaughter by reason of excessive self-defence. As Coldrey J of the Victorian Supreme Court pointed out, the offence of aiding and abetting suicide exists not only in recognition of the community's regard for human life but also for the protection of persons who are vulnerable because of advanced age, pain or emotional distress: R v Hood [2002] VSC 123 at [32]. 45 The New Zealand Court of Appeal has stated;