R v McLAREN [2011] NSWDC 115

District Court New South Wales

Medium Neutral Citation: R v McLAREN [2011] NSWDC 115 Hearing dates: 15 June 2011 Decision date: 15 June 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment Catchwords: CRIMINAL LAW - Sentence - Attempted murder - Carer tries to kill person with motor neurone disease - not "mercy killing" - Reduced moral culpability Category: Sentence Parties: The Crown Steven James McLaren Representation: J.M Fitzgerald - Offender Director of Public Prosecutions Legal Aid Commission - Offender File Number(s): 2010/329650

Judgment 1HIS HONOUR: Barry Harrison had been a person who lived an active life. He was a yachtsman, a surfer and a businessman until the effects of motor neurone disease from which he suffered began to affect the way he lived his life. His condition deteriorated to the stage that he was virtually helpless. He could not move his limbs, he could move only his head and his eyes and was having trouble swallowing. He was totally dependent on the care of others. 2One of those who cared for him was the offender, Steven McLaren. 3On 5 October 2010 Mr McLaren tried to kill Mr Harrison but this was far removed from any idea of a mercy killing. Mr Harrison had no desire to die and the offender's motivation was a selfish one. As he told police, if he had succeeded in killing Mr Harrison, he would not have to continue feeling trapped by Barry. 4The offender now stands to be sentenced for an offence of attempted murder. The maximum penalty for that offence is twenty-five years imprisonment. It carries a standard non-parole period of eight years. That standard non-parole period is not of direct application in this case because the offender pleaded guilty at an early stage to the offence for which he must now be sentenced. Nevertheless, the standard non-parole period remains as an important guide post to the sentence I must impose upon him. 5Whilst I speak about the plea of guilty, I should say that it came at an early stage and so the sentence I will impose upon the offender is twenty-five percent less that it would otherwise have been. 6Let me now deal with the events leading up to 5 October 2010 and what occurred in the early hours of that day. 7The offender had suffered from various forms of mental illness for most of his life. He was put in touch with Mr Harrison by an intermediary. He then moved in to Mr Harrison's home and began to care for him from 4 March 2010. He received a Centrelink carer's pension because of the care he provided for Mr Harrison. 8The offender started to become concerned about the constant need for him to care for Mr Harrison. It was the offender's responsibility to provide sole care to Mr Harrison overnight. Other people from Homecare came each morning and each afternoon, but even when others were there, the offender would still care for Mr Harrison by assisting the homecare visitors from time to time. 9The offender began to complain about not getting a break within a few months after he began living with Mr Harrison. He spoke to his daughter in July 2010 and those complaints continued for some time. His daughter encouraged her father, the offender, to speak to Mr Harrison to try and get a break, but the offender did not take that advice. 10Mr Harrison's family also offered to provide the offender with a break if he required it but again he did not take advantage of their offers. 11Mr Harrison developed a urinary tract infection which increased the number of times he needed to visit the toilet at night and which, consequently, increased the demands upon the offender. That was the situation that presented itself on 5 October 2010. 12The offender decided to kill Mr Harrison. Mr Harrison slept at an angle with his head higher than his feet. This was important because of the difficulties that Mr Harrison had swallowing. Mr Harrison had told the offender that if he was ever laid horizontally he would die. 13The offender took Mr Harrison to bed, and placed him there in the early hours of 5 October. He then went to bed himself. It had been a particularly bad day. Mr Harrison was quite unwell. We know what the offender was thinking at this stage because he told police, in what I accept was a frank interview, what was going through his mind. He told police that he was thinking that he had to get out of the situation he was in and the idea came to him that if he changed the position of the bed and laid Mr Harrison horizontally, Mr Harrison would die fairly quickly because of the mucous that was building up. He said, "I won't have to continue to feeling trapped with Barry". 14He put his plan into action. He waited until Mr Harrison was asleep. He then went into the room and lowered the head end of the bed as far as it would go. Mr Harrison became aware of what was going on. He woke up. He called out to the offender saying, "Hey, what are you doing? What are you doing?" 15Mr Harrison did not die. Instead he suffered for hours, in which he believed he was going to die, and during which the offender ignored his cries for help, he ignored the sounds of his suffering and responded at first by turning up the television so he could not hear Mr Harrison and then leaving the home completely. 16As I said, it was the offender's belief that Mr Harrison would die quickly but when it became clear that Mr Harrison was not going to die quickly and was suffering greatly, the offender did not change his mind. He explained in court today that the reason he did not was because he was fully aware that if he went back in and raised the bed so that Mr Harrison would not die, 17Mr Harrison would tell others what the offender had done. 18By daylight, after hours of listening to Mr Harrison suffering, the offender got into his car and drove off and bought himself coffee and breakfast, made appointments with his optometrist, went to a pub and had a beer at an early-opener. All this time Mr Harrison was calling for help. When he realised that the offender was not going to come and help him, he focussed his attentions on attracting help from his neighbours. When it became apparent that they could not hear him, he decided to save his energy so that he could call out again once the sun had gone up and there might be passers-by. 19As it transpired it was not until 8.30am that a homecare worker, Ms Jenny Murray arrived at Mr Harrison's home and finally rescued him from the perilous position that he was in. She lifted his head back up. She did this gradually because he was in a lot of pain. He had mucous and foam coming from his mouth. 20The offender went back to the home at 2.30 in the afternoon. He said, "I'm sorry for what happened last night, Barry. I just need a break for a week or so and then I can come back and care for you." He then went and had a sleep. He woke a bit later and explained to Ms Murray, Ms Jenny Harrison and Mr Harrison that he had tried to take Mr Harrison's life. 21Eventually the police were called. 22Upon hearing what Mr McLaren had said they asked him whether he attempted to kill Barry this morning to which the offender said he did. He was asked, "What was your intention?" and he said, "It was my intention to kill him. I was at breaking point. At 2am I walked into where Barry was and I reclined his bed to horizontal and I left the room. I heard him calling for help. I woke up in the morning and left the house at 8am, he was still alive". 23Not surprising, the effect upon Mr Harrison was significant. He has now passed away. I note that the Crown does not suggest that the actions of the offender caused the death of Mr Harrison. Had that been the case, of course, Mr McLaren would be facing a charge of murder rather than one of attempted murder, but it is the case that Mr Harrison lived for only a very short time after the offender tried to kill him and in that time he suffered. He could no longer live in his own home and he was clearly affected by fear and apprehension. That is not at all surprising. For a person as helpless as Mr Harrison was, to have someone come into his bedroom and try to kill him would clearly have a significant impact on Mr Harrison's quality of life. Of course, the effect of an offence upon the victim of that crime is a matter which is an important aspect of deciding the appropriate sentence to impose upon the offender. 24The offender was born in Grafton. He is the second of six children. His mother left the family when he was thirteen years of age leaving his father with the care of their children. He completed his higher school certificate and did well, achieving a pass in the top ten percent. He went to university but failed because he did not apply himself to his studies. But he did a certificate of mechanical engineering which he completed. 25He began work and married and had three children. He is now separated from his wife with the marriage breaking down due to his gambling problem which is related to his mental illness, a subject I will deal with later. 26He left physical work to become a carer. He did an appropriate course and worked in a home for a short time before taking up the position with Mr Harrison. 27There is a great deal of evidence suggesting that Mr McLaren, the offender, has been mentally unwell for a great part of his life. At the age of twenty-eight he had a breakdown. He was admitted to a psychiatric hospital where a diagnosis of schizophrenia was made. 28He was unable to return to work but did find work in a sheltered workshop. He worked there for many years under the care of a psychiatrist. 29In 2000 he was again admitted to a psychiatric hospital and began being treated by a Dr Allan Weiss who was treating him until his arrest. 30Unfortunately he was not taking all the drugs that were prescribed for him. One of the reasons he gave for doing so concerned the cost of one of the medications. It was not on the PBS. 31Anyone who wants to make it harder to obtain drugs to treat mental illness or who does not want to make it cheaper for those drugs to be obtained, should explain to people such as Mr Harrison's family why they have made their decision. The courts deal with distressing regularity with the consequences of violent acts by mentally ill people in situations where drugs which may well have prevented such violent acts are either not available or too expensive. Another of the reasons the offender gave for not taking his medication at the time of the offence, concerned his feeling that they stripped him of his personality. 32He is now taking his medication. The fact that he was not taking his medication at the time of the offence is something I will return to, but I will say this at this stage, that it does explain some flippant answers that the offender gave to police when they interviewed and also his rather flat demeanour when giving evidence in court today. 33The offender was a man of otherwise good character. He was clearly capable of caring for Mr Harrison and did so at times with compassion. 34Mr Harrison said himself of the offender, "He was a man that was full of so much caring, it was like chalk and cheese. Something happened. Apparently that string broke, something happened. He was a nice man, he was a gentle man that just went over the edge". 35The offender went into custody but was released on bail. In order to reflect that pre-sentence custody it is agreed that the sentence I will ultimately impose upon the offender should commence on 17 April 2011. 36To say that this offence is a serious one, is an understatement. As it carries a standard non-parole period I am required to specifically state how this offence compares to an offence in the middle of the range for objective seriousness. I adopt the Crown's description. This offence is slightly below the middle of the range. The matters suggesting the seriousness of the offence include the offender's motivation. As I said at the outset, he wanted to kill Mr Harrison for selfish reasons. He was feeling trapped and he wanted to get out of it and his motivation for not changing his mind, once it became apparent that Mr Harrison was not going to die quickly and was suffering significantly, was again a selfish one. He did not want his crime to be detected. He was hoping that Mr Harrison would die and people would think it was of natural causes. 37The second aspect suggesting the seriousness of this crime is clearly the vulnerability of Mr Harrison. The offender himself said that Mr Harrison was defenceless. It is hard to imagine a more vulnerable human being than Mr Harrison. 38The third aspect suggesting the seriousness of the crime concerns the length of time that Mr Harrison struggled for life. He believed at many stages of his struggle that he would die. For something like six hours, Mr Harrison struggled to breath and struggled to attract the attention of someone to come to his aid. 39The fourth aspect concerning the seriousness of the crime is related. The offender ignored these cries for help. He ignored what must have been the terrible sounds made by Mr Harrison as he struggled to breathe. 40The fifth aspect concerns the enormous breach of trust that this offence represented. He was taken into Mr Harrison's home, provided with accommodation and paid, and Mr Harrison, in effect, put his life in the offender's hands. The offender breached that trust in the most serious way imaginable. 41The next aspect concerning the seriousness of the offence relates to the fact that this was not only a single act, which was immediately regretted. I appreciate that I have mentioned this on many occasions, but it is very important, to understand that many offences of attempted murder involve one act and once that act is done, there is an immediate expression of remorse and attempts to aid the victim. That is not what the offender did. He continued to allow Mr Harrison to suffer in the hope that he would eventually die. 42The final aspect that I want to refer to concerning the seriousness of the crime concerns the effect of the offence on Mr Harrison himself, a matter that I have already mentioned. 43Were that the end of the story, the offender would go to gaol for a very long time but it is not the end of the story. There is substantial evidence that the offender suffered from a significant mental illness for a great part of his life. I have referred to his psychiatric history. I should also refer to observations made by Dr Neilssen, a forensic psychiatrist of great repute, who examined the offender and prepared a report for the assistance of the court. 44Dr Neilssen did not find any symptoms of active mental illness associated with the offender's crime or that his conduct was due to the effects of an acute episode of mental illness. On the other hand Dr Neilssen did say that it was clear that the offender had a residual disability arising from his illness, particular in the area of coping with stress. Dr Neilssen says, "It seems likely that Mr Harrison's demanding condition and the associated sleep deprivation caused the offender significant distress. Sleep deprivation is known to trigger symptoms of mood disorder, chronic mental illnesses such as bipolar disorder, (I interpolate the disease from which it appears Mr McLaren, the offender, suffers) are also associated with an increased tendency to act on impulse and impaired capacity for problem solving". 45Dr Neilssen also refers to the high dose of one of the particular anti-depressants that the offender was on and Dr Neilssen concludes, "I believe the effects of Mr McLaren's circumstances and his underlying chronic mental illness resulted in significant impairment in his capacity to control his actions and his perception of the seriousness and likely consequences of his conduct". 46The crown does not challenge Dr Neilssen's conclusion and so I will accept it. 47This means that the offender's moral culpability is substantially reduced and reduces also the effect that general deterrence should have on the sentence I will impose upon the offender. 48The offender gave evidence today and expressed his remorse. As I said, he did so in a rather flat way, speaking almost matter of fact about what he had done and how he felt about it. I have no hesitation at all in proceeding on the basis that his presentation in the witness box is most likely due to the medication that he is now taking. 49The offender expressed his remorse for what he did to Mr Harrison, the effects of what he did on Mr Harrison's family, and also his own family. He himself could not really explain what he did beyond saying that he felt trapped and was at the end of his tether. 50In determining the appropriate sentence the Crown provided me with one case but the facts in that matter were substantially different. I have the standard non-parole period to guide me, the maximum penalty to guide me and the other principles of sentencing. One of those is that the sentence must bear a reasonable relationship to the objective gravity of what the offender did. That principle does not cease to apply in a case where an offender's moral culpability is reduced because of mental illness and in this case the offender well knew that what he was doing was seriously wrong. He well knew that 51Mr Harrison was suffering for six hours and his sole motivation was, I repeat, a selfish one. He felt trapped by Barry and he wanted to get out of that situation. 52For those reasons, the offender must serve a substantial period of imprisonment, even though he is unlikely to re-offend and has good prospects of rehabilitation, particularly if he continues to take his medication. 53The taking of a human life and the attempt to take a human life, are offences of the most serious kind. The offender well knew what he was doing. He may have been less able to reason about what he was doing, but he full knew that he wanted to kill Mr Harrison because he felt trapped by him and he well knew, once Mr Harrison did not quickly die, that he was suffering enormously. 54I will make a finding of special circumstances in the offender's favour. This is his first time in prison. He is now fifty-five years of age and upon his release it will be in his interests, and in the community's interests, that he is supervised for an extended period of time. For that reason I will enlarge the period of eligibility for parole at the expense of the non-parole period. 55The offender is sentenced to imprisonment. I set a non-parole period of five years to date from 17 April 2011. It will expire on 16 April 2016. I set a head sentence of eight years.