R v Nielsen[2012] QSC 29

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

DALTON J

Indictment No 1036 of 2010

THE QUEEN

v.

MERIN NIELSEN

BRISBANE 

DATE 16/02/2012

SENTENCE

HER HONOUR:  Would you stand up, please, Mr Neilsen?  Merin Nielsen, you have been convicted by a jury after a trial on a charge of aiding suicide.  The suicide was Frank Ward, aged 76.  There is no doubt that Mr Ward wished to commit suicide, and did so.

Mr Ward was born in Scotland.  He emigrated to Australia to marry.  He had no relatives of his own in Australia, although he had relatives of his wife.  They, however, lived in Canberra.  His wife and he lived in Brisbane.

His wife developed multiple sclerosis, and he nursed her through a very long period of incapacity with that illness. He was her sole carer, and it appears that he nursed her for something like 20 years.  As a result of that experience, Mr Ward had no time for doctors, and he had a firm desire to himself avoid a prolonged illness or incapacity.

The evidence was that Mr Ward was an isolated man in his old age, and perhaps that was partly as a result of his being an immigrant; partly, I suspect, as a result of the middle years of his life being devoted to the care of his wife; and, perhaps, partly as a result of his own personality.

I don't accept that he was lonely or vulnerable because of his isolation.  Witnesses described him as stubborn and cantankerous.  He certainly knew his own mind, and there is no question that he had full capacity at all relevant times.

He seems to have had little contact with his wife's relatives. He lived in a block of units which were public housing units and seem all to have been occupied by single people, many of whom were of an age with him.  All of the residents of that unit block gave evidence that he kept to himself, more or less.  He did regularly attend a meditation group, and that was for many, many years. 

In about 1980 or 1981, when you were 19 or 20 and he was around 45, you met when you joined that meditation group.  You had contact with him then regularly over a long period, but the contact was of a limited nature, simply being at the meditation sessions and perhaps at a cup of coffee held at the hall after that.  There is certainly no indication of any closer or even social contact outside that meditation group.

In July 2007 Mr Ward suffered from a stroke.  He went to hospital.  He was assessed during the day and discharged that evening.  That was the 11th of July 2007.  The stroke was not a major event.  He lost the use of his right arm temporarily.  From what the other residents of the units say, and from what a witness Mrs Jansse says, it seems clear that the stroke knocked him about, not just physically but psychologically, but it seems also clear that he recovered relatively soon afterwards.

It is a measure of Mr Ward's isolation, I think, that having suffered from the stroke, he telephoned Mrs Jansse and asked her to visit.  She had known Mr Ward and his wife 30 years previously through the meditation group.  She had moved to South Australia and had very little contact with Mr Ward for about 30 years.  She had, shortly prior to the stroke, returned to Brisbane to live.  As I say, he contacted her after suffering this stroke.  He told her that he was going to die that weekend and that he wanted to give her his car and a set of good crockery.  She visited him.  He did give her the car and the crockery.  She didn't think he was going to die that weekend.  She made considerable efforts to organise some medical assistance and care for him.  He rejected both those things.

She herself offered him assistance over the next four or five weeks, she remembers, but Mr Ward improved and after a period, she now thinks of about four or five weeks, perhaps it was a few weeks longer, she gave him the car back because he was driving again.  And the evidence of the witnesses who lived in the unit block was similar, that they noticed at first after the stroke he was in difficulty, but that he gradually returned to health, and his attitude was, I think one of them said, that he got better, or that he was going to get better - a little bit better - every day.

I think it is fair to conclude that having suffered a relatively minor stroke, Mr Ward overreacted to the physical sequelae, perhaps understandably, given the experience he had had in nursing his wife.

Your relationship with Mr Ward increased at this time.  He asked you for help and you gave it.  He trusted you.  He made you his Power of Attorney on 25 July 2007, and he made you the sole beneficiary of a will dated the 5th of August 2007.

A previous document, which he perhaps intended to be a will, but which was too informal to amount to a will, left his estate to the meditation group and asked that the group invest the capital of his estate and distribute half of the yearly income amongst seven relatives, his own brother and sister and some relatives of his wife.  It was a tenuous gift in that it was conditioned on them being active members of the meditation group.  You were aware of the terms of that earlier testamentary document, you were a witness to it, and on sentence your counsel said you assisted in the drafting of it.

At the same time, July 2007, as Mr Ward had his stroke, made you his Power of Attorney and made you his beneficiary, you contacted Exit International, a pro-euthanasia group on Frank Ward's behalf.  Their records show that the contact came initially from you and that you asked that you be the person they contacted, not Frank Ward.  The records also show that Frank Ward confirmed that this was in accordance with his wishes.

During this time, following his stroke in July 2007, you assisted Mr Ward for a time.  You assisted him with shopping about once a week, you told the police, when interviewed.  You also assisted him with financial things, including banking, and you estimated on three occasions you took cash from him in an amount of about $5,000 to purchase gold bullion.  Mr Ward, it is established from independent evidence, followed the financial markets and apparently formed the idea that gold bullion was a good investment at that time.  The bullion was found in Mr Ward's home after his death.  The relevance, I suppose, is that you gained through this time some idea of his financial state, although there is no evidence that you had any precise idea of his net worth.

As Mr Ward got better, that is, as he recovered from his stroke, your contact with him decreased.  You told police, when interviewed, that prior to June 2009 your contact with him was once every one or two months.  It was no longer necessary for you to assist him but you would attend at his unit and you would sit and talk to him whilst having a whiskey together.  You told the police that you felt under some obligation to continue being friendly to Mr Ward because he had made you the beneficiary of his will.

So after a long period of regular but not close contact, your relationship with Mr Ward became closer.  You were now seeing him regularly, although not frequently, outside the meditation group.  But at the same time, the relationship could not be described as being a particularly close friendship.

After July 2007 when you initially contacted Exit International on behalf of Mr Ward, there were two visits which you arranged by ladies in an organisation called Nancy's Friends to Mr Ward's unit.  You were present on each occasion. These visits, it seems, were to discuss end-of-life options, including euthanasia, and there was exhibited in the trial a detailed sheet of notes which you told police you took at one of the visits.  The notes explain in great detail how to obtain the drug Pentobarbital from Mexico. 

As I say, there is no doubt on the evidence that Frank Ward wished to take his own life should circumstances amount, in his view, to a situation where he was no longer independent, or no longer had quality of life.

As well as the visits from Nancy's friends, there is evidence that you made other inquiries on his behalf, for example as to the availability of helium, which can apparently be used to induce suicide, or to be used by someone to kill themself.

The involvement was obviously more than just philosophical chats about the idea that Frank would take his own life if the quality of his life deteriorated.  In November 2008, the evidence shows some quite concrete inquiries by you as to air flights to Mexico, presumably to obtain Nembutal, and to passports and international driver's licences.

Now, the relevance of that, of course, is that well before June 2009 you had thought, in a fairly concrete and fairly organised way, as to what it would be necessary for you to do if you were to assist Frank Ward in obtaining either Nembutal or helium, or some other substance which he could use to end his own life.  That is, really, by the events we're concerned with in June 2009, you had been considering these matters in a fairly concrete and detailed way for almost two years.

The evidence is that you have three university degrees.  The references tendered on your behalf yesterday almost all spoke of your intelligence, and it is not without significance that your chosen field of study at university is philosophy.  There is no doubt that through that time, between July 2007 and June 2009, it must have occurred to you that you had a financial interest, a personal financial interest in Mr Ward's death. And, as I say, that arose because at about the same time you got in contact with Exit International, you became the sole beneficiary of his will.

There matters rested until on the 11th of June 2009, the phone records show you received a telephone call from Mr Ward very early in the morning.  It seems consistent with other evidence, and your statement to police as to this phone call, was that Mr Ward rang you upset because he said he had suffered a second stroke.  Now, because of Mr Ward's attitude to doctors, he never saw a doctor to find out if, indeed, he had suffered a stroke at that time, or, indeed, if he was suffering from any other condition at that time.

The pathologist who gave evidence at the trial after conducting an autopsy found evidence of an earlier stroke, which I think we can accept was the July 2007 stroke.  There was no evidence of a recent stroke.  The doctor was not asked to be definitive, and I act on the basis that he could not have ruled out a recent stroke on his findings at autopsy, but at the same time we simply do not know whether or not Mr Ward had indeed suffered a second stroke.

The autopsy did reveal thrombi in Mr Ward's calves, some of which had moved to his lungs.  That was no doubt a serious condition, but the doctor's evidence was that those conditions manifested, at most, four days before death, so it certainly wasn't what was affecting Mr Ward on the 11th of June 2009.

I interpolate here that on autopsy it was found that Mr Ward suffered from prostate cancer, severe or moderate to severe arthrosclerosis, and, as I say, thrombi in his legs and pulmonary emboli as a result.  All of those conditions were serious and the doctor's view was that had that been all that was discovered at autopsy, he could have accounted for Mr Ward's death on the basis of one or all of those three conditions.  On the other hand, the toxicology clearly revealed that, in fact, those conditions did not account for Mr Ward's death but that he died because of lethal levels of Pentobarbital.  It should also be said that the pathologist was quite equivocal as to whether or not the three serious conditions he found on autopsy would have been symptomatic in any way in Mr Ward.  He simply couldn't say whether they affected him by causing pain or other symptoms in his day-to-day life.  And he simply couldn't say whether or not those conditions would have proved fatal to Mr Ward in the short or medium term.

I have no doubt that something was affecting Mr Ward as at the 11th of June 2009.  Mrs Isobel Murphy, his neighbour, said that he was using a lightweight chair to move around the unit, that is, he'd push the chair along the carpet and walk along behind it using it to support him.  On the Tuesday of that week he had Mrs Murphy and another resident of the unit take his wheelie bin out to the street.  I have no doubt, given Mr Ward's character, so far as one can judge it from the evidence in this case, that he would not have - or that he would have regarded that as an indignity, and he would not have suffered that indignity unless he really couldn't take out his own bin.  So there is no doubt that something was affecting him but, as I say, we simply don't know what it was because he did not consult a doctor.  It may well have been a physical condition.  It may well have been a psychiatric condition. 

In this regard I note Mrs Jansse's evidence was that for some short time before that, a few weeks, she noticed he did not attend the meditation group and that she recalls when he did last attend, she thought he looked unkempt or unwashed.  Now, again that is consistent with his suffering from a physical complaint but it is equally consistent with his being depressed or suffering some other psychiatric condition. 

In any case I accept there was something affecting him as at 11 June and that he was upset about it and that he renewed his request to you to obtain Pentobarbital from Mexico. 

I think what is relevant here is that neither Mr Ward nor you knew of the underlying conditions which the pathologist found on autopsy.  Neither Mr Ward nor you knew what was wrong with Mr Ward at that stage.  You didn't know what illness was affecting him, what its prognosis was, what its likely duration was.  You told the police on interview that you thought he had had a stroke.  You really had no basis to assume that.  You talk several times during the interview about something which  - I assume you mean to make reference to transient ischaemic attacks.  Each time you mispronounce that - it's probably more than mispronounce - you misname that condition.  At first I thought it might have been a slip of the tongue or an error in the transcript but it's clearly not.  I mention that because it's such an acute pointer to the fact that you really had no idea what medical conditions Mr Ward had at the time or what their likely duration or prognosis was. 

After the telephone call on the 11th there is no evidence at all that you took any reasonable steps to find out what medical condition was affecting Mr Ward or that you waited for time to pass to see whether he improved or deteriorated.  On Saturday, the 13th you took $7,000 cash from him and made arrangements, hurried arrangements, to depart Australia.  You left Australia on the morning of Saturday, 14 June.  I don't consider that this haste in leaving to go to Mexico to obtain the Nembutal was satisfactorily explained.  You were 48 years old at the time.  You were a mature, educated person.  You had been aware of the issues raised by Mr Ward's wishing to take his own life if the quality of his life deteriorated, as I say, for well over 18 months. You certainly had time to consider what would be a reasonable response on your part. 

Mr Ward, I accept was incapacitated by something to the extent that he had difficulty walking without the support of a chair and could not take his own wheelie bin out. But at the same time he was up and about his unit.  He was dressed in day clothes during the day.  The evidence from the other residents of the block is that they assisted him morning and night but essentially he was able to care for himself.  He still had his drink, or his happy hour as he called it, at the end of the day.  He complained to one resident at one point about having pain in his chest but this is in the context of him being up out of bed and talking to her.  It's nothing like the sort of serious, extreme conditions that can manifest, for example, when someone has a long-term battle with cancer. 

The case which you ran at trial was that, having gone to Mexico for the purpose of obtaining Nembutal, you reneged when confronted with the reality of the purchase in Mexico, in circumstances where you felt released from the pressure put upon you by Mr Ward.  The jury clearly rejected that story, in view of really quite overwhelming evidence in the Crown case.  The point is I think though, for me on sentencing you, that you did have, having had, as I say, more than 18 months to consider these issues, you did have very acutely five days away and time to think, and think again, about what you were doing. 

As I say, the jury verdict is only consistent with your having brought the Nembutal or Pentobarbital in Mexico and returned to Australia to supply it to Frank Ward.  You arrived at the Brisbane Airport about 2.30 in the afternoon, on 20 June and from there you went to Frank Ward's unit.  He was found sometime about 20 past 5 that afternoon dead, and in such a state that the ambulance saw no need to attempt resuscitation.  There was a bottle of Phenobarbital next to him, some of its contents in a glass, and as I say, the evidence is that's clearly what killed him. 

I spoke to your counsel and the prosecutor yesterday about the seeming haste of these events subsequent to your return to Australia.  I accept that that haste, on the 20^th, was due to Frank Ward's own haste in pursuing what he desired. 

The evidence shows then that Mr Ward was a man who, because of  his own peculiar circumstances and life experience, had a  great fear of long-term ill-health and had certainly overreacted to a health scare two years earlier. 

Something began affecting him on about the 11th of June.

There is no medical opinion as to what it was; as to what his prognosis was, or how permanent the condition was from which he began to suffer on the 11th of June.  No information at all as to that condition, as to its duration or severity, or as to treatment options that were available for it.  Without allowing time to pass, without urging inquiry as to any of these things, you made an extraordinary effort to get him the drug he wanted to use to suicide.  As I say, at the time Mr Ward was clearly affected by some medical condition, but he was not in extreme pain, he was not severely ill, or severely incapacitated.

I refer to the case of The Queen v Johnstone [1987] SASR 482 at 485.  That was a case where the respondent was convicted on his own confession of the murder of his wife.  The evidence  showed that the respondent was a man of unblemished reputation and career who had killed his mentally ill wife at her own request.  She had a history of 30 years of mental illness and alcoholism through which he had cared for her and she had attempted suicide three times before.  So it is a different charge and a much more serious charge than the charge for which I sentence you.  But because of his wife's condition and request, obvious points of similar principle arose or consideration for the Court in considering the criminality of his conduct.

The decision is one of the Court of Criminal Appeal in South Australia, and I will read this passage from the judgment of the Chief Justice, King CJ: 

     "Cases such as this present great difficulty to thesentencing Judge and to an Appellate Court.  People cannot be permitted to take life in defiance of the law, however altruistic their personal motives may be.  It is the responsibility of the Court to impose punishments which will maintain respect for the law and deter others from defying it.  It is necessary to say bluntly, lest there be any misunderstanding, that where the law in this respect is defied coolly, deliberately, and without the pressure of emotional stress, perhaps by reason of a personal belief that the law should be different, the punishment must be as severe as befits the gravity of the crime of murder.

     In such a case the dominant purposes of the punishment must be the maintenance of respect for the law which protects human life and deterrence of offending by others.  Those purposes must be reflected in the non-parole period.  Where the murder is committed by a loved one who is moved by the plight and entreaties of the victim, there is rather more scope for compassion and leniency in fixing the non-parole period."

As I say, that was a case of murder, but the principles, and the contrast between a deliberate defiance of the law, and a defendant who is moved by the plight of entreaties of a victim for whom they care and whom they love is apposite here.

In this case, there was a deliberate breaking of the law by you and there is no doubt from the evidence, including the handwritten notes you made of the procedure to obtain Pentobarbital in Mexico, that you understood that you were breaking the law. And it is a sophisticated, expensive and lengthy process which you undertook, to travel for five days to obtain the drug and return to Australia.

As I hope I have outlined, you were not under the same sort of emotional pressure as is evident in cases where a husband, or child, or wife, assists their spouse or parent to commit suicide.  You were not caring for Mr Ward on a day-to-day basis.  In fact, really, apart from his elderly neighbours popping in to see him twice a day, nobody was caring for him because he didn't need that type of care.

You had had a long relationship with him, but, as I say, it could not be described as a close friendship, and you said to the police that you felt obliged to visit him and be friendly to him because he had made you the beneficiary under his will.

You were a mature, educated man at the time.  You had had a long time during which you had the opportunity to think, as I say, not just in an abstract way, but in a fairly concrete way about the issues involved in obtaining a drug for Mr Ward to use to take his own life, and then acutely, from the 14th of June 2009, you had five days with little to do but contemplate exactly what you were doing.

And, of course, you had a personal financial interest in the death.  It is not put as your main motive but I don't think this matter can be ignored.  It is just not possible in any setting to ignore such a conflict of interest.  It is also not irrelevant that at the time you had little in the way of personal assets.  You had almost no money in the bank and a credit card debt, so that your net position was that you were about $12,000 in debt.

In the police interviews you make statements about the will and your interest under it.  You make statements indicating a willingness to give Mr Ward's brother and sister money and statements indicating that if there was any reasonable challenge to your being the beneficiary under the will, you would stand aside and not contest it.  You make statements, in effect, to the effect that you're not interested in the money, but there is no evidence been put before me on sentence that you have in fact disclaimed interest under the will. 

As I said to the jury in summing-up, this case is not about general principles or moral views about euthanasia.  It is about those facts and the application of the law to them. However, in considering the criminality of the conduct in this case, I have found it of some assistance to consider the type of theoretical legal models that are proposed, for example, for medically-assisted suicide, and the laws in countries where medically assisted suicide is possible.  In such countries and under such models, there are always provisions to ensure that the power to assist a person wishing to take their own life is not misused.  There is always provision for independent medical examination by more than one doctor, and there would certainly never be a situation allowed by such a model or such a law, where the decision was made by someone with a financial interest in the decision.  There could never be a situation under such a model where suicide was assisted in the case of a person who had only just begun to suffer from illness, where that illness had not been diagnosed, where there was no useful information about its duration, prognosis or severity. 

As I say, this case is about the facts that have been proved on the evidence and the application of the law in Queensland, but in a case such as this where a wide range of facts fall within a broad definition of a crime, I do find that reference to models of medically-assisted suicide as helpful in measuring the criminality of the offence you committed. 

Suicide is not illegal.  Frank Ward had a right to do whatever he wished, according to the dictates of his own mind on grounds that appealed to him, and didn't have to satisfy anybody else.  And, as you said in your record of interview with the police, at least at one stage, he had between June 2007 and June 2009, opportunity to assist himself in this regard, he had opportunity himself to obtain a drug which would assist him, but he chose not to. 

Of course, it is relevant in considering your case that Mr Ward had a clear intention to take his own life, but that matter is, indeed comprehended by the nature of the offence for which I am sentencing you; that is, it is assisting a suicide.  Were there no intent to suicide, the offence would be one of unlawful killing. 

You were 48 at the time of the offence.  You have no prior criminal history.  You had your share of vicissitudes of life in childhood.  Your mother died of a stroke at age 12.  Your brother suicided when you were in your late 20s, shortly following the death of your father. 

You did well at school and you have apparently done well at university.  Your middle years, after leaving school, are largely unaccounted for in the material put before me.  Your brother says that after school, "Merin emerged without a clear path to follow."  It seems that you studied at university as a mature age student and you have worked as a teacher.  You are still studying at university, a PhD in philosophy.  I have before me references from two university colleagues who respect your academic work. 

Eighteen testimonials to your character were tendered by your Counsel.  The people who have given the testimonials certainly speak highly of you.  I notice that seven of the testimonials are from your family, and I include in that definition your de facto spouse and her ex-husband and son. 

Apart from family members, only one - Wynne - has known you for more than ten years.  Four of the references proceed on a wrong factual basis as to the facts of the matter before me - Botic, second last paragraph; Ovchinnikova, second last paragraph (as to intention); Judd, second last paragraph; and Breen Schipke, page 1 last paragraph, page 2 first paragraph. 

I don't know how these people came to proceed on the information they had, but I do think it is worthy of note. 

Also worthy of note is the fact that during the trial we listened to around seven hours of recorded interview with the police.  As I said to your counsel a couple of times during this matter, if you bothered to count the individual lies, there would be hundreds.  There is elaborate, elaborate, dishonesty over a considerable period of time demonstrated in these interviews, and I remark on the easy facility with which you lie in the interviews.  And I note that many of the references tendered on your behalf mention how honest you are. It is difficult to reconcile with, as I say, the seven hours of recorded interviews. 

The other thing that is noteworthy from those interviews is your attitude.  At one point you express the hope that you don't seem too flippant about matters.  Rather than use adjectives to describe the attitude you display, I would probably see it as more relevant to say that the attitude contains no indication that you understood the reality or seriousness of what you had done. 

The relevance of that, I suppose, is threefold.  One is it is very difficult for me to believe factual assertions or factual submissions made by your counsel now based on self-serving statements in those records of interviews.  One, for example, was that during the interviews you claimed you felt pressure to assist Mr Ward in June 2009 because he told you if you didn't help him get the drug to do it in what you describe as an aesthetic manner, he would use a fish knife to slit his own throat.  Having watched you say that in the record of interview a number of different ways, a number of different times, and in the context of the other untruths in those interviews, I can't accept that, even on a balance of probabilities basis on sentencing.

The second matter that the dishonesty is relevant to, is remorse.  It indicates a lack of remorse.  Assisting suicide is perhaps an odd crime in relation to the factor of remorse because many, in fact most, people in the comparable sentences that have been put before me are not remorseful, because they have acted out of love and compassion.  Having said that, most, after they have acted, have notified the police, co-operated fully with police, and told the truth about what they have done.  As I say, probably because their motives are so clear.  And that sort of lack of remorse I don't think could be taken into account on a sentence for this charge.  But the dishonesty exhibited over a prolonged period of time in the records of interview does, I think, indicate a very relevant lack of remorse on your part. 

The third relevance of the dishonesty is that it is not alone. There is also evidence in the records of interview that you had been dishonest in what you told the deceased's relatives about the details of his death.  And the dishonesty with the police and the dishonesty with the relatives does, I think, obscure the motives with which you acted, particularly in circumstances where you were sole beneficiary of the will, and particularly in a case where your motives are less clear and less understandable than a case such as The Queen v. Maxwell, which I'll come to shortly, where a spouse or a child kills their spouse or parent in circumstances where they have been a long-term carer with a clear compassionate and altruistic motive for someone in a hopeless and extreme medical situation.

Both the Crown and your counsel are agreed that you ought to receive three years' imprisonment as a head sentence. 

The difficulty in sentencing you comes to the time, if any, which you ought to serve.  In relation to that question, I will discuss some comparative cases.  The first one is The Queen v. Maxwell [2003] VSC 278.  That was a case where Mr Maxwell killed his wife who had suffered for years from very painful, very debilitating cancer.  She weighed 40 kilograms at the time of her death.  She couldn't walk, he had to carry her to the place she agreed she would like to die.

He'd cared for her himself through this time, and the Court could clearly see love and compassion as the motives for the commission of a crime, and could clearly see that Mr Maxwell, in caring for his wife, had been under great stress and a prolonged burden every day.  He was sentenced to 18 months wholly suspended.  That was in Victoria where the maximum penalty for assisting suicide is five years.  Here, the maximum penalty for assisting suicide is life imprisonment. 

Mr Maxwell co-operated fully with the police and gave an early indication of a plea. And it is well known that the Courts offer significant discount on sentences for an early plea, both because an early plea indicates remorse, and because it saves costs.  So in considering all these comparative sentences in fact, I bear in mind that the Court had before it a case where the defendant had indicated an early plea and was able to discount accordingly.  The reverse position, of course, is not true, and you shouldn't think that because you did not plead guilty but ran to trial, that is taken against you.  It is simply that in comparing these other sentences where there was an early plea, one has to understand that that is a significant mitigating factor which discounts the sentence.

The same sentence, that is 18 months wholly suspended, was imposed in a case of Hood [2002] VSC 123.  The factual basis as to motive and burden of care were less compelling than in Maxwell, although the offender was very young.  The other factors do apply, though.  It was another Victorian case where the maximum penalty is five years and there was significant co-operation and an early plea. 

The case of Hood is often quoted in cases on assisting suicide for these dicta: 

     "As long ago as 1967 suicide and attempted suicide ceased to be crimes in Victoria.  However, Parliament retained an offence of aiding or abetting another person to commit or attempt to commit suicide.  That offence carries a maximum penalty of five years' imprisonment.

     Accordingly, whilst the law recognises the right of an individual to take his or her own life, it prohibits the assisting or encouraging of a person to pursue such a course of action.  This offence remains on the statute books because of the importance of human life and its preservation.  It is a fundamental principle of our society.  The concept is often encapsulated in the phrase 'the sanctity of human life'.  The law is also designed to protect a vulnerable person who opts for suicide at a time when extreme depression from whatever cause may provoke an irrational and emotional decision by that person to end their life.  To this extent, the law may be seen as life affirming and not life denying and directed at discouraging suicide as a response to the emotional vicissitudes of life.

     The degree of moral blame attributed to a person who assists or encourages an act of suicide may vary greatly from case to case.  At one end of the spectrum may be placed a person who assists or encourages a person to commit suicide in order to inherit property, or for some other ulterior motive.  At the other end, there is the individual who supplies potentially lethal medication to a terminally-ill person, perhaps a loved one who is in extreme pain, and who wishes to end that suffering at the earliest possible opportunity."

I think those principles are renowned as encapsulating much of what a sentencing Judge must consider in relation to a case such as yours.  Your counsel referred me to The Queen v. Pryor.  That is a decision of Hill AJ on 19 December 2005.

That was not an assisted suicide case.  It was described by the Judge as a mercy killing case.  A woman killed her elderly demented mother for whom she was caring, and who the evidence showed was very difficult to care for.  The evidence - and it was accepted by the sentencing Judge - was that the daughter loved her mother very much.  The matter did run to trial and the sentence was 18 months wholly suspended.

The sentence remarks also contain the sentence for assisting The suicide of that woman's father.  He was at the end of a Long and hopeless battle with cancer.  He had made two Previous suicide attempts.  The sentence was 12 months wholly suspended. 

In my view, the facts of that matter contrast with the facts here, in the sense that the defendant killed, and assisted the suicide of, her parents, that is family members who she loved dearly and for whom she had the burden of caring.  Both had diagnosed, defined, and hopeless illnesses that were distressing to them and to her, and there were no complicating factors as to money or dishonesty. 

The other case which I find relevant in considering this matter is Justins [2011] NSWSC 568.  Mrs Justins was tried and convicted of manslaughter of her de facto husband of some 18 years in circumstances where he was suffering from quite advanced Alzheimer's disease.  She had always offered to plead to the offence of assisting suicide but the Crown wouldn't accept that plea, and, as I say, the matter ran to trial and she was convicted.  The conviction was overturned on appeal.  She then did plead to the offence of assisting suicide and the Crown accepted that.  It is a New South Wales offence where the maximum penalty is ten years. 

The Court sentenced her on the basis that, as I say, she killed her long-term de facto husband, whom she cared for, who had a definite and hopeless diagnosis of Alzheimer's disease, and who the autopsy showed suffered from advanced Alzheimer's disease.  The basis of the sentencing Judge was that there had been two previous suicide attempts by her de facto husband.  I find quite disturbing in that case a factor that, very shortly before the assisted suicide, the defendant had a solicitor, who didn't know her husband, and who wasn't told of his medical condition, prepare a new will under which she benefitted very substantially in relation to a very big estate, an estate worth about $2 million. 

Nonetheless, the Crown conceded in that case that the sentence which Ms Justins had already served for manslaughter adequately reflected the criminality of the offence.  That sentence had been 22 months of periodic detention with eight months of parole following that. 

In sentencing you, I recognise that I am almost exclusively concerned with general deterrence.  I also recognise the principles under section 9(2)(a) of the Penalties and Sentences Act, that imprisonment ought to be a last resort.

Nonetheless, having regard to the discussion of criminality earlier in my reasons, and even having regard to all the factors available to me, that go in mitigation, I cannot see that a wholly suspended sentence is appropriate. 

I sentence you to three years' imprisonment and I set a parole release date of 15 August 2012.  That's effectively a sentence to serve six months, less one day, and the one day is really to reflect the fact that you have spent last night in custody.