New South Wales Supreme Court CITATION : R v Albert James PADDOCK [2009] NSWSC 369 HEARING DATE(S) : 24 April 2009 JUDGMENT DATE : 21 May 2009 JURISDICTION : Common Law JUDGMENT OF : Rothman J DECISION : Sentenced to imprisonment for a non-parole period of 4 years and 3 months commencing 23 May 2007 and expiring on 22 August 2011, the balance of term being 1 year and 9 months expiring on 22 May 2013; eligible for release on 22 August 2011. CATCHWORDS : CRIMINAL LAW – sentence – indictment for murder, plea of guilty to manslaughter on the basis of substantial impairment – crown accepted in full satisfaction of indictment – sentence imposed LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 CATEGORY : Sentence Berrier v R [2009] NSWCCA 40 R v Antaky [2007] NSWSC 1047 R v Blacklidge (Court of Criminal Appeal, 12 December 1995, unreported) R v Dodd (1991) 57 A Crim R 349 R v Ferguson [2008] NSWSC 761 R v Hawkins [2001] NSWSC 420 R v Hill (1981) 3 A Crim R 397 CASES CITED : R v Jones (1993) 70 A Crim R 449 R v Keceski (Court of Criminal Appeal, 10 August 1993, unreported) R v Keir [2004] NSWCCA 106 R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Vachalec (1981) NSWLR 351 Regina v Connolly [2001] NSWSC 787 Regina v Mabbott [2002] NSWSC 502 Salah v R [2009] NSWCCA 2 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 PARTIES : Regina (Crown) Albert James Paddock (Offender) FILE NUMBER(S) : SC 2008/13628 COUNSEL : L Carr (Crown) P Winch (Offender) SOLICITORS : Office of the Director of Public Prosecutions (Crown) Legal Aid Commission of New South Wales (Offender) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST ROTHMAN J 21 MAY 2009 2008/13628 R v Albert James PADDOCK REMARKS ON SENTENCE 1 HIS HONOUR: Albert James Paddock was charged with the murder of his partner, Barbara Ingram. On 26 February 2009, Mr Paddock pleaded not guilty to murder but guilty of manslaughter, which plea was accepted by the Crown, in full discharge of the indictment. As I will shortly set out, the facts make clear that the basis of the plea of manslaughter is substantial impairment of mind. Facts 2 There is a statement of agreed facts, which I summarise in the following way. Mr Paddock is 80 years of age and was 78 at the date of the offence (22 May 2007). Ms Ingram was 70 years of age on the date that Mr Paddock killed her. Their relationship had commenced in about 1987 or 1988. The couple lived in a relocatable home at Redhead Beach Holiday Park. Ms Ingram, who had a long-standing history of heart problems (Pulmonary Hypertension and Systemic Lupus Erythematosus [Lupus or SLE]), died of asphyxiation, caused by Mr Paddock suffocating the victim with his hand on her nose and mouth for some period of time with a significant degree of pressure (evidenced by associated injuries to the face). 3 From 2005, the relationship between Mr Paddock and his partner began to deteriorate. They slept in separate rooms, but continued to live together under the same roof. Mr Paddock displayed worsening features of paranoia and dementia. He accused Ms Ingram of having an affair with a Newcastle drug lord and that this drug lord was following him around or had people doing so. Mr Paddock followed her around when she attended exercise classes or at shopping centres, picture theatres and the like. He also questioned Ms Ingram's 9-year-old grandchild as to the persons to whom Ms Ingram spoke, when she took him to the pictures. 4 In or about June 2006, Ms Ingram expressed the view that she could no longer live with the offender, due to his dominance and his paranoia about her suspected affairs. Ms Ingram had made clear to others that Mr Paddock had not been physically violent, but had engaged in verbal abuse, focussed on the belief that she was having affairs, which had become progressively worse, and that she, Ms Ingram, could take it no longer. Apparently Ms Ingram applied to the Housing Commission for alternate accommodation and had told Mr Paddock that she was intending to move out. 5 Friends and acquaintances noticed the deterioration in the mental condition of Mr Paddock, his obsession with a belief that Ms Ingram was having affairs with other men and his increasing paranoia. Mr Paddock obsessed about the fact that he was being followed and that his life was in danger. 6 In early 2007, Ms Ingram attended the Country Music Festival at Tamworth with her sister, her cousin and another friend. Apparently Mr Paddock engaged a private investigator to follow her as part of the increasing delusion and paranoia that she was having an affair with a drug lord, who was intending to do him harm. 7 Approximately two weeks before 22 May 2007, Ms Ingram spoke with her daughter and told her that she could no longer cope with the paranoia displayed by Mr Paddock. Ms Ingram's daughter arranged for Ms Ingram to move out in the next two or three weeks and live with her granddaughter. It was proposed that the move would take place on the weekend of 26 and 27 May 2007. This separation was discussed between Mr Paddock and Ms Ingram and, with the help of Ms Ingram's daughter and another resident of the Park, they compiled (but did not immediately execute) an agreement on the distribution of their property, to the effect that the relocatable home (and any rights to a lease or licence) would be retained by Mr Paddock and the motor car owned by them would be retained by Ms Ingram. Further, personal property at the home would become the property of Ms Ingram. 8 On 19 May 2007, Ms Ingram's daughter made arrangements for her mother to visit before lunch on 22 May 2007. At or about 10.00am on 21 May 2007, Ms Ingram gave notice to the Park Manager at Redhead that she intended to leave and, at or about 11.30am, she and Mr Paddock attended the local newsagency. At the newsagency they each executed the document relating to property ownership. 9 At about 4.00pm on 21 May 2007, Ms Ingram notified of her inability to attend exercise classes, because she was packing. Ms Ingram died in the early hours of 22 May 2007. Her daughter rang the telephone at the home at Redhead at approximately 9.30am on 22 May 2007 and spoke with Mr Paddock. He told her that her mother was making headway packing, but said she was not there at the time. Further, he told her that her mother was outside talking to a grey-haired older lady, and had gone somewhere with her, and that he did not know when she would be back. He apologised for his behaviour over the previous two years and for the way that he had treated her mother. 10 At or about 2.00pm on 22 May 2007, Mr Paddock rang a friend and told him that he had "got her to sign the paper, … got her to sign the paper, she settled for the car and furniture." He told the friend, with whom he had made previous arrangements, not to come until Wednesday 23 May 2007 at about 1.00pm. The friend had been shown the location of hidden personal documents, including funeral papers, belonging to Mr Paddock, for the stated reason, being, in case "anything happened to him". At about 4.00pm on 22 May 2007, Mr Paddock went to a neighbour's place and purchased four cigarettes from him. 11 At about 8.00pm on 22 May 2007, Mr Paddock telephoned Ms Ingram's daughter on her mobile and said, to Ms Ingram's daughter's partner, words to the effect that Ms Ingram had gone away to assist a sick friend, would be away for a few days, and would not be able to contact her daughter. 12 At about 1.00pm on 23 May 2007, Mr Paddock's friend arrived at his home, as previously arranged. Mr Paddock unlocked the main and security doors and stood back. He had blood on his face and neck and large lacerations on both forearms. The following exchange occurred: Friend: "What the bloody hell is going on?" Mr Paddock: "I lost it mate, I lost it mate, I killed her, I killed her." Mr Paddock: "Come in." Friend: "No, what's the smell of gas?" Mr Paddock: "I tried to gas myself but it didn't work. You have guns, go home and get me one." Friend: "No way." The friend went to the office and asked staff to telephone the police and ambulance. 13 It seems that Mr Paddock had attempted suicide. 14 On being interviewed, Mr Paddock was, to say the least, confused. He initially stated that Ms Ingram came at him with her hands raised and a knife above her head. It is clear from the nature of the injuries and the cause of death that this is not so. Further, he explained the absence of any evidence to that effect, by suggesting that he washed the knife and had put it back in the knife block. Further, Mr Paddock had arranged a number of boxes with parts of notes in each box, which notes, if joined together, disclosed his paranoid delusions, referred to some money in a wallet, and requested to have the boxes and his personal items hidden. Mr Paddock explained that his "poor old brain was mixed up" and told the Police: "I thought I'd end up shot one day or night, 'cause I was dreaming about em [sic] bein' [sic] in me [sic] bedroom and, and I didn't know whether they had a gun or not … I was in a bad way when I wrote them." 15 The money in the boxes, or to which the note referred, was for the purpose of paying bills. The note contained a message that the notes, once read, should be burnt. Mr Paddock's Medical Condition 16 Mr Paddock has been examined by a number of medical practitioners including a Psychogeriatrician and Neuropsychiatrist and Psychiatrists. Dr Sharon Reutens, Psychogeriatrician and Neuropsychiatrist, diagnosed Mr Paddock as having dementia with delusions and a differential diagnosis of delusional disorder. She recites that "there has been an eight-month history of belief that he was being followed by strangers, and that these people might harm him or kill him. He continues to feel he is being followed, even during his incarceration." 17 Dr Reutens describes the belief as "not bizarre in nature but they were held with persistence despite alternative explanations being offered. There were no hallucinations, thought disorder or decline in functioning related to the beliefs, rendering the diagnosis of schizophrenia less likely. His psychotic condition was likely to be contributed to by his cataracts – sensory deficits are often found in people with the onset of delusions at a late age." 18 At the time he was interviewed by Dr Reutens, Mr Paddock was being treated with anti-psychotic medication, but, nevertheless, continued to have little insight into the nature of his beliefs. Dr Reutens opined that Mr Paddock suffered from mild dementia, complicated by delusions which, not unusually in the elderly, occur in the context of sensory impairment (his cataracts significantly affect his eyesight). 19 Dr Nielssen, Psychiatrist, diagnosed Mr Paddock as having a late-onset psychotic illness and probable early dementia. The diagnosis of psychotic illness was based upon Mr Paddock's account of the bizarre persecutory belief that he was being followed by drug dealers, who planned to shoot him, and the delusional belief that Ms Ingram, his partner, was having an affair with a drug lord. 20 Dr Nielssen considers that it is likely that Mr Paddock's persecutory beliefs are an early symptom of his dementia. Dr Nielssen took the view that Mr Paddock was fit to enter a plea and fit for trial, but that his mental condition deprived him of the knowledge that what he was doing was wrong, because he believed that he was in immediate danger. The condition, he said, deprived him of the capacity to reason with sense and composure about the consequences of his actions. 21 Professor Greenberg, a Forensic Psychiatrist who was qualified by the Crown for the purpose of assessing Mr Paddock, provided a report and supplementary report. After reciting the history and background of Mr Paddock, Professor Greenberg came to the view that Mr Paddock was suffering from a Delusional Disorder with paranoid features. Further, it was Professor Greenberg's view that Mr Paddock had early signs of mild dementia. Professor Greenberg came to the conclusion that Mr Paddock had an understanding of the legal "wrongfulness" of his actions, which conclusion is based upon matters outlined in Professor Greenberg's report. 22 Professor Greenberg, in a supplementary report, commented on Mr Paddock's risk for future violence. He comments that Mr Paddock continues to have poor insight with regards to his delusional disorder, and comments that Mr Paddock continues to have residual psychotic symptoms, despite being treated with anti-psychotic medications since his entry at the correctional facility. Ultimately, Professor Greenberg regards Mr Paddock as "falling into a low-moderate risk category group for future violence". Conclusions 23 The charge to which Mr Paddock has pleaded guilty assumes an intention to kill or inflict grievous bodily harm, the culpability for which is ameliorated by the mental condition that Mr Paddock now suffers and suffered at the time that he killed Ms Ingram. 24 Manslaughter is an extremely serious offence. It involves the felonious taking of a human life and the legislature has fixed a maximum sentence of 25 years' imprisonment, to be imposed in the worst category of case. There is no standard non-parole period. It is clear that Mr Paddock's actions are not in the worst category of cases for manslaughter. The actions of Mr Paddock put his conduct in the mid-range of culpability, without regard to the subjective features, other than that which is necessary for diminished responsibility. 25 The starting point for a consideration of the appropriate penalty for manslaughter, and a key element in the assessment of the gravity of the objective circumstances of the case, is that every case of manslaughter involves the felonious taking of human life. Ms Ingram, while elderly, was entitled to live out her life with her daughter and grandchildren, who have been denied the benefit of their mother and grandmother respectively. Of course, nothing can return her to them and, while nothing I can do will ameliorate the tragedy to them, they should also understand that, but for the mental condition suffered by Mr Paddock, this offence and this death would, most likely, never have occurred. 26 The circumstances that give rise to a conviction for manslaughter are so various, and the degrees of culpability so wide, that it is impossible to establish a sentencing tariff to be applied to all cases. Manslaughter throws up the greatest variety of circumstances affecting culpability: R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397; R v Blacklidge (Court of Criminal Appeal, 12 December 1995, unreported); Salah v R [2009] NSWCCA 2; Berrier v R [2009] NSWCCA 40. 27 While there is no doubt that the condition of Mr Paddock was a significant factor in the commission of this offence, there is, notwithstanding the evidence of Dr Reutens, no reasonable doubt that Mr Paddock could differentiate right from wrong and was responsible for his actions. 28 As earlier stated, sentencing involves the resolution of sometimes conflicting goals: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. These purposes overlap and cannot be considered in isolation from each other, even though they often point in different directions: Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476 per Mason CJ, Brennan, Dawson and Toohey JJ. The High Court went on to say: "And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality." ( Veen (No 2) , ibid, at 476-477.) 29 As already stated, the maximum sentence is 25 years' imprisonment and there is no standard non-parole period. Mr Paddock has no criminal history and, but for this offence, is and was unknown to the Police. It seems the only aggravating feature of the offence, beyond what would otherwise be encompassed within the crime of manslaughter occasioned in the manner that this was, is the fact that the victim was elderly and vulnerable. The actual use of violence and the infliction of injury that was substantial, each of which were involved in this offence, are both matters that are elements of the offence itself, and are not aggravating factors. 30 There are a number of mitigating factors that the Court takes into account in determining the appropriate sentence. Although there are some aspects of the conduct of Mr Paddock that suggest some degree of planning, that conduct seems to be, on the balance of probabilities, no more than a manifestation of the paranoia generally displayed by Mr Paddock. As earlier stated, this offence is the first offence committed by Mr Paddock, who has no criminal record and is not otherwise known to the Police. Mr Paddock was, hitherto, a person of good character and the medical evidence suggests that, while there is some risk of re-offending, it is unlikely. Mr Paddock is now on anti-psychotic drugs and, as a consequence, is unlikely to re-offend. That factor must be qualified by the dementia, although there is no evidence to suggest that the dementia, by itself, would trigger conduct of the kind for which Mr Paddock has been charged. 31 Mr Paddock has shown some remorse, evidenced, for example, by the plea, but the quality of it is difficult to gauge. The nature of his psychiatric condition makes remorse difficult for him to display and I do not take into account, to any substantial degree, remorse for the offence, if any, said to be disclosed by Mr Paddock. On the other hand, Mr Paddock was not fully aware of the consequences of his actions at the time they were committed. In that regard, it is important to ensure that such a mitigating factor is not double-counted with the substantial impairment of mind which gave rise to manslaughter, rather than murder. 32 Mr Paddock was arrested and has been in custody since 23 May 2007. The medical evidence suggests that his impairment is to a significant degree more than would have been necessary to give rise to the diminution in culpability associated with the lesser charge. On that basis, the "additional" impairment is required to be taken into account in determining the sentence: R v Keceski (Court of Criminal Appeal, 10 August 1993, unreported). 33 As has been stated on a number of occasions, Mr Paddock's mental condition must be considered in terms of the sentencing goals. It may well be, and in my view in this case it is the fact, that Mr Paddock's mental disability entitles him to be regarded as a less suitable vehicle for general deterrence of the community at large. The community cannot expect that a person, with significant mental disability, should be the example by which others are deterred from committing offences. 34 Nevertheless, the fact that Mr Paddock suffers from a mental illness does not mean that a prison sentence should not be imposed, or that the sentence should be less than the circumstances that the case would otherwise suggest. A full-time custodial sentence is appropriate. The treatment of Mr Paddock's dementia, while less easily treated in prison than in private care, is ultimately a responsibility of the Executive Government. The Executive Government is required to provide for the care and treatment of his dementia, while he is in prison: R v Vachalec (1981) NSWLR 351, per Street CJ at 353-354. If Mr Paddock's condition deteriorates during the course of the sentence, such that his release ought be permitted on humanitarian grounds, again, it is a matter for the Executive, which is empowered to deal with the situation and grant Royal Prerogative of mercy. Neither is a matter that the Court takes into account in fixing this sentence: R v Jones (1993) 70 A Crim R 449; R v Keir [2004] NSWCCA 106. 35 I turn then to the issue of the plea that was offered by Mr Paddock. Well prior to the plea being entered, namely, on 3 December 2008, following the receipt of the first report of Professor Greenberg on 1 December 2008, Mr Paddock, through his legal representatives, contacted the Director of Public Prosecutions, and raised the issue of accepting a plea to manslaughter on the basis of substantial impairment. Ultimately, on 26 February 2009, when Mr Paddock was initially arraigned for murder, he pleaded not guilty to that charge, but guilty of manslaughter, and the Crown accepted that plea in full satisfaction of the indictment. It is a matter for the Crown, as to which of a number of charges is preferred; it is a matter for the accused, as to which charge he pleads guilty; and it is a matter for the Court, as to the sentence to be imposed. The Court is required to take into account the early plea of guilty. A discount is granted for the utilitarian value of the plea of guilty: R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. I take into account the early plea of guilty and assess the utilitarian value and the discount for the plea at 20 percent. 36 The Crown submits that there may be circumstances capable of constituting special circumstances, such that the discretion provided for in s 44 of the Crimes (Sentencing Procedure) Act 1999 could be exercised. The Court considers that Mr Paddock's age and circumstances warrant a finding of special circumstances. I do not take account of Mr Paddock's psychiatric disability, as this would be to double-count the effect of elements and matters already considered, and the amount by which I will reduce the non-parole period is small. 37 I come then to the range available and the appropriate sentence to be imposed. I am most grateful for the extensive material provided to me by counsel who appeared for Mr Paddock and by the Crown. Those cases include R v Hawkins [2001] NSWSC 420 in which O'Keefe J imprisoned an elderly person, in not dissimilar circumstances, to 3 years' imprisonment with a non-parole period of 2 years. In Regina v Connolly [2001] NSWSC 787, the offender killed his wife, under the delusional and false belief that his wife was being unfaithful to him, and was sentenced for manslaughter on the basis of substantial impairment. This also was a circumstance not dissimilar to that which is before the Court in the current situation. Similar circumstances arose in Regina v Mabbott [2002] NSWSC 502, R v Antaky [2007] NSWSC 1047 and R v Ferguson [2008] NSWSC 761. I accept the range for sentences suggested by counsel for Mr Paddock and acknowledged as correct by the Crown. I consider that an appropriate commencement point (before the discount for the plea of guilty) for the head sentence is 7 ½ years. Conviction and Sentence 38 Mr Paddock, you are convicted of the manslaughter of Barbara Beryl Ingram, committed on or about 22 May 2007. 39 I sentence you to imprisonment for a non-parole period of 4 years and 3 months commencing on the date of your arrest, 23 May 2007, and expiring on 22 August 2011, the balance of term being 1 year and 9 months, expiring on 22 May 2013. 40 You are first eligible for release on 22 August 2011. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.