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  4. R v Venn - [2023] QSC 173

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R v Venn[2023] QSC 173

R v Venn[2023] QSC 173

SUPREME COURT OF QUEENSLAND

CITATION:

R v Venn [2023] QSC 173

PARTIES:

R

v

JUDITH ANN VENN

(defendant)

FILE NO/S:

BS No 568 of 2023

DIVISION:

Trial Division

PROCEEDING:

Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 August 2023

DELIVERED AT:

Brisbane

HEARING DATE:

28 July 2023

JUDGE:

Williams J

ORDERS:

  1. THE COURT ORDERS THAT:
  1. 1.
    In respect of the pre-sentence custody, time spent in custody from 18 August 2020 to 3 August 2023 being a total of 1,081 days be declared as time already served under the sentence.
  1. 2.
    In respect of the single count on the indictment, the defendant is sentenced to a term of imprisonment of eight and a half years.
  1. 3.
    I set a parole eligibility date as of today, 4 August 2023.
  1. 4.
    A conviction is to be recorded.
  1. FURTHER, THE COURT DIRECTS THAT:
  1. 1.
    The reports of Dr Hopkins dated 28 January 2022, Dr van de Hoef dated 7 October 2022 and Dr Arthur dated 12 October 2022 be provided to the parole authorities.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – where the defendant pleaded guilty to unlawfully killing her husband – where she was of diminished responsibility at the time of the killing – where the sentence must be structured to take into account the defendant’s personal circumstances

Criminal Code 1899 (Qld)

Mental Health Act 2016 (Qld)

Penalties and Sentences Act 1992 (Qld)

Channon v The Queen (1978) 20 ALR 1

Pickering v The Queen (2017) 260 CLR 151

R v Goodfellow (Unreported, Fryberg J, 15 October 2004)

R v Hill (Unreported, Atkinson J, 5 September 2001)

R v Johnstone (1987) 45 SASR 482

R v Lock (Unreported, Mullins J, 10 September 2001)

R v Nielsen (Unreported, Dalton J, 16 February 2012)

R v Potter; ex parte Attorney-General (Qld) [2008] QCA 91

R v Pringle; ex parte Attorney-General (Qld) [2012] QCA 223

R v Ward (indictment number 74/1999; 8 December 2000)

R v Zarnke [2019] QCA 141

COUNSEL:

D Kovac for the Crown

C Wilson for the respondent

SOLICITORS:

Office of the Director of Public Prosecutions (Queensland) for the Crown

Bell Criminal Lawyers for the respondent

  1. [1]
    Judith Ann Venn, you are to be sentenced today on one count of manslaughter (domestic violence offence). The maximum penalty for this offence is imprisonment for life. You pleaded guilty to this charge when arraigned before me on Friday, 28 July 2023.
  1. [2]
    You pleaded guilty to this charge at an early stage following a hearing before the Mental Health Court and the withdrawal of the charge of murder and its replacement with the manslaughter charge. I accept this as an early plea and take the plea into account as a mitigating factor. What this means is that I can reduce or moderate the sentence that I otherwise would impose on the basis that you have cooperated with the criminal justice system and avoided the need for a trial.
  1. [3]
    You are currently 69 years of age and were 66 years old at the time of the offending on 14 August 2020. You do not have a criminal history. You have been in custody since 18 August 2020, which is approximately two years, 11 months. The full amount of this time is able to be declared as time served under the sentence to be imposed today.
  1. Mental Health Court
  1. [4]
    At this stage it is appropriate to consider the history of this matter, including the decision of the Mental Health Court.
  1. [5]
    On 17 August 2020, you were charged with murder and remanded in custody after being discharged from hospital.
  1. [6]
    On 20 August 2020, the criminal proceedings were suspended following a direction by the Chief Psychiatrist for the preparation of a psychiatric report.
  1. [7]
    On 10 February 2023, the Mental Health Court hearing took place. Reports were prepared by Dr Gordon Hopkins, Dr Pamela van de Hoef and Dr Ken Arthur. The three psychiatrists were also cross-examined in respect of their reports.
  1. [8]
    The Mental Health Court decided that you were not of unsound mind at the time of the offence but were of diminished responsibility.
  1. [9]
    In light of this decision, on 13 February 2023, a charge of manslaughter was presented. On 9 March 2023, the matter was committed for trial by way of registry committal.
  1. [10]
    On 13 March 2023, through your legal representatives, you confirmed that the matter was a plea and on 9 June 2023 the matter was presented in the Supreme Court and listed for sentence.
  1. Circumstances of the offending
  1. [11]
    The relevant circumstances of the offending are set out in an agreed statement of facts.
  1. [12]
    You and the deceased, Lance Hilton Venn, were married for approximately 40 years. Mr Venn was 64 years of age at the time of his death. You and the deceased have three children and you were retired and lived at an address in Alexandra Hills.
  1. [13]
    The deceased had a past history of bipolar spectrum disorder and manic-depressive illness. Consequently, the deceased would become agitated and aggressive towards others. There were previous incidences where there was physical abuse towards you. The deceased was also verbally abusive towards you whenever he became agitated or aggressive.
  1. [14]
    On Friday, 14 August 2020 at approximately 7.30am, you deliberately overdosed the deceased with Lorazepam tablets dissolved in soup before cutting the deceased’s left wrist. The deceased died at 10.38am as a result of aspiration due to an overdose of Lorazepam.
  1. [15]
    While you intended to kill the deceased, following the finding of the Mental Health Court on 10 February 2023 this sentence proceeds on the basis of diminished responsibility manslaughter under s 304A of the Criminal Code 1899 (Qld) (Criminal Code).
  1. [16]
    The Mental Health Court found that you were of diminished responsibility at the time of the offence as you were suffering from a major depressive disorder that was so severe, it distorted your cognitive abilities which impaired your capacity to know that you ought not do the act.
  1. [17]
    The agreed statement of facts also sets out details in respect of the deceased’s medical history. The deceased had previously been diagnosed with bipolar spectrum disorder and manic-depressive illness, but his condition had deteriorated in the 18 months leading up to his death.
  1. [18]
    In March 2020, the deceased was admitted as a patient under the Mental Health Act 2016 (Qld) after an episode of aggressive behaviour. The deceased refused treatment and returned home.
  1. [19]
    The deceased had been prescribed Lorazepam and he was required to take two tablets at night and one in the morning. At the relevant time, you were the deceased’s carer, and this included collecting his prescriptions.
  1. [20]
    On 12 August 2020, the deceased purchased a boat from a neighbour for $20,000. This purchase caused financial stress. You contacted your neighbour and asked the return of the money. The neighbour agreed to this, but the deceased refused.
  1. [21]
    At approximately 7.27am on 13 August 2020, you researched on your iPad ways to commit suicide. On the same day, you collected the deceased’s prescription of Lorazepam tablets from the pharmacy.
  1. [22]
    After you collected the Lorazepam tablets, you cooked a vegetable soup in which you dissolved 50 Lorazepam tablets, being approximately 1 bottle. You stored the soup in containers and put it in the freezer. You also asked the deceased to sharpen a knife.
  1. [23]
    In the early hours of 14 August 2020, the deceased took a taxi to your daughter’s home to collect a car that she was selling on behalf of the deceased. The deceased arrived at your daughter’s home at approximately 3.42am and waited until your daughter was awake. Your daughter sent a text message to you advising that the deceased had been at her home since 4am. At that stage, you replied to the effect “ok that ends it”.
  1. [24]
    The deceased arrived home at approximately 7.30am and you served him the vegetable soup containing the high dosage of Lorazepam. The statement of facts sets out events after that time. The deceased went to the bathroom to take a shower and became unsteady on his feet. You assisted him to the bed in the bedroom. When you were assisting him, the deceased hit you in the face causing bruising to your eyes.
  1. [25]
    Once the deceased was in the bed, he succumbed to the high dosage of Lorazepam and lost consciousness. Subsequently to this, you used a knife to cut the deceased’s left wrist. You wrapped his wrist in a jumper before leaving the room.
  1. [26]
    You then proceeded to write a letter to your family which expressly stated that you did not want them to live with the stress that you had, and that the deceased had “put you over the edge”.
  1. [27]
    You then consumed some of the vegetable soup yourself before returning to the bathroom to read a book. After a period of time, the drug was not taking effect, and you took a knife and used it to cut yourself in various places. You then sent a text message to your daughter at 9.12am that did not make sense. Your daughter called you and noticed that you were incoherent. Your daughter then contacted emergency services and requested an ambulance.
  1. [28]
    The ambulance arrived at approximately 10am and the paramedics were unsuccessful in their attempts to revive the deceased.
  1. [29]
    The cause of death of the deceased was aspiration due to or as a consequence of Lorazepam toxicity. The knife wounds were superficial and were not the cause of death.
  1. [30]
    The paramedics also located you in a room in the house and you admitted that you had consumed soup which contained Lorazepam. You were treated in respect of the knife wounds.
  1. [31]
    You participated in an interview with police on 15 August 2020 whilst at the hospital. You told police that you had had enough of the deceased’s behaviour and decided to end his life and your own. Further, you told police that you intended to kill yourself and the deceased so that no one else had to look after the deceased, particularly your children.
  1. Psychiatric evidence
  1. [32]
    Turning now to the psychiatric evidence: The three psychiatrists who prepared reports for the Mental Health Court diagnosed you with depression with no evidence of psychotic symptoms.
  1. [33]
    That is, at the relevant time you were suffering from a major depressive illness and there was no evidence that you had developed psychotic features of a very severe depressive illness.
  1. [34]
    The contributing factors that led to your depressive episode include the death of your sister in 2019, being a victim of a scam in 2018, the deceased’s behaviour and mood as a result of his bipolar disorder which in term caused you lack of sleep and anxiety, your husband’s spending habits causing financial stress, and your concern for your children having to care for your husband if you were to take your own life.
  1. [35]
    The views of the three psychiatrists are clear and not contentious between the Crown and the Defence.
  1. [36]
    It is appropriate to consider in some further detail the views of the psychiatrists as it is relevant to the evaluation of your criminal culpability as a result of the finding of diminished responsibility.
  1. [37]
    Dr Hopkins holds the view that you suffered from a major depressive disorder at the time of the offending. Your condition worsened due to the presence of psychosocial stresses in your life. This had a cumulative effect on you, resulting in excessive stress on your normal coping strategies and distortions of thinking. Dr Hopkins described this as an increasingly myopic and hopeless lens which contributed to “last resort” thinking and desperation around the time of the offence when you were suffering from an acute depressive episode of severe intensity.
  1. [38]
    Dr Hopkins recognises that you did have an intent to kill the deceased as well as yourself. You were not entirely deprived of your capacity to control your actions and you understood the moral, legal and ethical dimensions of the actions. However, at the time you were substantially deprived of the capacity to know that you should not commit the act due to the severity of your depressive disorder. Consequently, your ability to reason rationally and appreciate the alternatives of your decision was clouded by that mental illness.
  1. [39]
    Dr van de Hoef was of the opinion that you were experiencing a severe depressive episode at the time of the offence. Dr van de Hoef helpfully sets out many factual matters in her report. Relevantly, Dr van de Hoef is of the opinion that you minimised and concealed the deceased’s physical aggression towards you, probably as a result of shame, loyalty to him and a wish to spare your children from more concern.
  1. [40]
    Dr van de Hoef’s report records that the deceased suffered observable manic symptoms for at least eight months, and possibly up to 18 months, before his death. Further, the deceased’s manic thinking, anxiety and ‘paranoia’ was exacerbated by anxieties brought on by the COVID-19 pandemic. This included the deceased being anxious about catching COVID-19 but also the restrictions on church gatherings heightening his and your isolation.
  1. [41]
    Dr van de Hoef’s diagnosis is that you suffered a severe major depressive disorder of at least several months duration which remained untreated. You were aware of the nature of the act and your research and planning indicated no complete deprivation of your capacity to control your actions. However, the worsening of your cognitive distortions, characterised by all or nothing catastrophic thinking, restricted your ability to problem solve or to make rational decisions. It is in these circumstances that you were led to believe that the only solution to an intolerable and hopeless situation was for you and the deceased to die. Consequently, Dr van de Hoef concludes that your capacity to know that you ought not to commit the act was significantly impaired but not completely lost. This is consistent with the finding of diminished responsibility.
  1. [42]
    Dr Arthur notes that you did present at public mental health services in July 2020 but your access to therapy was compromised due to the unavailability of clinicians and your decision to go on a holiday with your husband. Dr Arthur notes that the severity of your illness might have been underestimated by the assessing clinicians because you tended to under report symptoms and downplay your distress. In the interview with Dr Arthur you fully accepted responsibility for your actions and did not project blame or exaggerate the way you were treated by the deceased.
  1. [43]
    Dr Arthur concurs with the opinions of the other psychiatrists and is of the view that you were suffering from a major depressive disorder at the time of the offence, substantially impairing your capacity to know that you should not have killed your husband. Dr Arthur is of the view that you saw no viable way to extricate yourself from the situation without burdening your children with your husband’s care, and in effect you were trying to protect your children. Your depression affected your ability to problem solve, ultimately leading to an act of last resort.
  1. [44]
    The psychiatric evidence is unanimous in the conclusion that the mood disorder that you suffered from at the time of the offence lead to significant distortions in your cognitive abilities. Consequently, your capacity to understand that you should not commit the act was substantially impaired at the time of the killing.
  1. Crown submissions
  1. [45]
    The Crown accepts that you are to be sentenced on the basis that you intended to kill the deceased but because of this abnormality of mind the charge was reduced to manslaughter under s 304A of the Criminal Code.
  1. [46]
    Consistent with the authorities, this remains a very serious basis on which to sentence. The starting point is consideration of the sentencing principles in s 9(3) of the Penalties and Sentences Act 1992 (Qld) (Penalties and Sentences Act).
  1. [47]
    It is non-contentious that the offence of manslaughter covers a wide range of circumstances and accordingly, the range of sentences available is equally wide.
  1. [48]
    The Crown refers to the comments of Chief Justice Kiefel and Justice Nettle in the case of Pickering v The Queen (2017) 260 CLR 151 at [29] where their Honours stated:
  1. “… manslaughter is an offence that may be committed in an infinite variety of circumstance, ranging from what for all intents and purposes is tantamount to murder down to something which, when viewed objectively, is no more heinous than a moment's inattention to a task in hand. For that reason, it is notorious that manslaughter attracts a wider range of sentences than any other crime.”
  1. [49]
    Relevantly to a sentence on the basis of diminished responsibility, reference is made to the comments of Brennan J, as his Honour then was in, Channon v The Queen (1978) 20 ALR 1 at [4]-[5]. There his Honour stated:
  1. “Psychiatric abnormality falling short of insanity is frequently found to be a cause of, or a factor contributing to, criminal conduct. The sentencing of an offender in cases of that kind is inevitably difficult. The difficulty arises in part because the factors which affect the sentence give differing significance to an offender’s psychiatric abnormality. An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as more intractable subject for reform than one who is not so affected or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period. The abnormality may seem on one view to lead towards a lenient sentence, and on another to a sentence which is severe. That is not an unusual phenomenon in sentencing, where the court must fashion a sentence which either reconciles or balances the various objectives of sentencing, sometimes giving emphasis to one of the objectives of sentencing, sometimes giving emphasis to another.”
  1. [50]
    The Crown recognises that each case turns on its own facts and that there is no Court of Appeal decision which captures the set of circumstances that this case does.
  1. [51]
    Reference is made to some yardsticks for some guidance, including the Court of Appeal decisions in R v Pringle; ex parte Attorney-General (Qld) [2012] QCA 223 and R v Zarnke [2019] QCA 141.
  1. [52]
    The sentences in these decisions were 9 years and 13 years respectively. The last sentence involved a serious violence offence declaration.
  1. [53]
    In submissions, the Crown rightly conceded that the sentence imposed in R v Zarnke dealt with far more serious offending than the current case. Consequently, R v Zarnke is of no real assistance in respect of the current sentence.
  1. [54]
    The Crown relies on the authority of R v Pringle; ex parte Attorney-General (Qld) as being of some assistance to the considerations in the current case.
  1. [55]
    Reference is also made to the decision of R v Potter; ex parte Attorney-General (Qld) [2008] QCA 91, where a sentence of eight years with parole eligibility date of three years was found not to be manifestly excessive in respect of a mother killing her child in circumstances of diminished responsibility.
  1. [56]
    Overall, the Crown’s submission is that an appropriate sentence in the current circumstances would be 9 to 11 years imprisonment, but they do not submit that the circumstances are such to justify the making of a serious violent offence declaration.
  1. [57]
    If a sentence of 10 years or more was the starting point, the Crown submits that approximately three years in custody could be taken into account and not formally declared to reduce the head sentence to less than 10 years and then set a parole eligibility date, with no serious violent offence declaration.
  1. [58]
    The Crown submits that supervision and monitoring on release from custody are necessary in this case and therefore parole would be appropriate rather than a suspended sentence.
  1. [59]
    The Crown also tendered victim impact statements from two of your daughters.
  1. [60]
    These statements provide some insight to the personal complexities resulting from the tragic circumstances that gave rise to the events of 14 August 2020 and the equally tragic aftermath of that day.
  1. [61]
    Two of your daughters were in court for the sentence hearing and offer their support to you going forward. It is proposed that upon your release from custody you will reside with one of your daughters.
  1. [62]
    With considerable insight, one of the victim impact statements asks the court to consider the full context of the case when determining the appropriate sentence. It further states that you committed your life to being a loving wife, caring for the deceased while raising three daughters and never putting your needs before others. It recognises your generous and caring nature across every aspect of your life which illustrates a side to your character that is contrary to the events that transpired.
  1. [63]
    There is also recognition of the difficult journey that has resulted from the events, and the emotional and psychological impacts. The victim impact statement seeks that you be dealt with, with compassion and empathy and also in a way such that you have access to ongoing medical care to enable a complete recovery to your mental health.
  1. [64]
    This is a similar theme picked up in the second victim impact statement. This statement expresses the hope that you will be proactively provided with mental health treatment and other supports into the future and that you will be able to be sufficiently supported when you transition back to the community. This is a relevant factor to be considered in the exercise of the Court’s discretion in imposing the overall sentence today, particularly considering whether supervision on parole is required or desirable.
  1. Defence submissions
  1. [65]
    Counsel on your behalf has taken the Court to an employment statement which evidences the responsibilities and roles that you have undertaken whilst in custody. It is apparent that you have displayed a level of hard work, dedication and responsibility in your employment whilst in custody which has seen you rise to positions of responsibility.
  1. [66]
    This has more recently included you being given a trusted role in reception at the Women’s Correctional Centre. It can be inferred from this that you have engaged withyour mental health treatment whilst in custody. It can also be inferred that you have taken steps towards your rehabilitation by engaging in positive relationships with others and in a team environment, which no doubt has had a positive impact on your mental wellbeing.
  1. [67]
    Counsel on your behalf has also taken the Court to a reference from the chaplain at the Brisbane Women’s Correctional Centre who has been working with you, including to assist you in setting positive goals for the future. Again, this shows steps that you have taken towards rehabilitation.
  1. [68]
    Counsel on your behalf has tendered the full reports of Dr Ken Arthur, Dr Pamela van de Hoef and Dr Gordon Hopkins. The detail in these reports sets out many relevant historical facts leading up to the relevant events but also provide context for your ongoing medical supervision and treatment.
  1. [69]
    I consider there is some benefit in providing these reports to those responsible for your ongoing management and supervision.
  1. [70]
    Counsel on your behalf has also taken the court to the decision in R v Johnstone (1987) 45 SASR 482 which was referred to in the decision of Justice Dalton, as her Honour then was, in R v Nielsen on 16 February 2012. These authorities are referred to for the principle that the Court may consider compassion even in cases of murder. These authorities are not referred to as relevant comparators.
  1. [71]
    The submissions on your behalf as to comparative sentences also rely on decisions of the Court of Appeal in R v Potter; ex parte Attorney-General (Qld) and R v Pringle; ex parte Attorney-General (Qld).
  1. [72]
    The ultimate submission made on your behalf is that an appropriate head sentence of eight years with an order for parole eligibility without needing to serve any more time in prison would be appropriate.
  1. [73]
    Alternatively, it is submitted that the Court could take into account the approximately three years served but not declare it and impose a head sentence of five years and suspend the sentence, which gives certainty of release. It is accepted that this depends on whether supervision is desirable in this case.
  1. [74]
    Counsel on your behalf has also taken the Court to the cross-examination of the psychiatrists for the purposes of the Mental Health Court hearing on 10 February 2023.
  1. [75]
    This evidence is of assistance in two respects:
  1. (a)
    understanding the severity of your depressive illness which is relevant to your criminal culpability for the offending; and
  1. (b)
    evaluating the key issue of risk to the community, which is a relevant consideration under the Penalties and Sentences Act.
  1. [76]
    In respect of the severity of your depressive illness, Dr van de Hoef was asked about the comment in her report that your all or nothing catastrophic thinking brought you very close to being psychotically depressed. Dr van de Hoef stated:
  1. “… this aspect of the assessment that I considered for longest, really... I prevaricated about it in my own mind. Psychotic depression, when I use that term, really refers to the extreme severe end of the spectrum of depressive disorder. It’s about as ill as a person can get with that condition without ceasing to function or dying, and along the way to that endpoint, as depression becomes more intrenched and severe, it’s characterised you by psychotic symptoms and which are usually delusional thinking developing … and/or with hallucinatory experiences, which can occur in any of the sensory modalities.”
  1. [77]
    Dr van de Hoef goes on:
  1. “It’s an extreme form of thinking, but it’s also a very restricted form of thinking where the person simply cannot see that things are not as black as they can be and utterly hopeless. In my opinion, Judith Venn came very close to that, particularly when one considers her lifelong religious affiliation and devotion to her church and familiarity with scripture. I mean, she and her late husband lived by this. And … just leaving aside … the idea of help from a doctor or a mental health service, leaving that aside, to get to the stage where she would plan to break rules she knew to be fundamentally against her – all of her religious beliefs I think speaks volumes as to how depressed this women was, to break that – those two terrible taboos of murder and suicide, which is the way her mind was operating then, as the only way out of an intolerable situation and the only way of protecting the next three most cherished people in her life, which were her daughters. She could not tolerate the prospect of those adult daughters having to endure the great difficulty she had in trying to care, monitor and manage her husband. So that’s what I mean when I said I think she comes close. But this lady has been assessed, not only by me – me for this report, but – but by numerous psychiatrists, and none of them, me included, have found any evidence of hallucinatory experiences or what I would call very clear delusional, nihilistic, utterly negative beliefs, but I think she came close. And I think the fact that she’s a religious person can unseat us a little bit in our assessment because it’s relatively unusual … it seemed to me that right up until that final morning, she still held out hope that there would be some relief in terms of managing her husband. He had an appointment with a psychologist that she had made, and the appointment was for later that day, and she rang up and cancelled that appointment only that morning because her husband took off during the night again. So I think if he hadn’t taken off … and he had gone to the psychologist, whom he had seen before, there was still this glimmer of hope that maybe that would’ve changed things.”
  1. [78]
    Dr van de Hoef also refers to the physical abuse on the morning of the deceased’s death. Further, counsel on your behalf referred to the views of Dr van de Hoef and Dr Hopkins, that you had understated the physical violence against you in the year of 2020. It is likely this was for a variety of reasons including that you felt ashamed and that you had failed your husband, that you knew that he couldn’t help it, and out of shear loyalty to him, you did not mention it or make a big issue of it.
  1. [79]
    However, there is other evidence that supports that physical violence occurred on the day, including a dent in the wall and facial and upper bruising when you were examined in hospital.
  1. [80]
    The oral evidence also considers the escalation in your mental illness from the time that you attended at the Bay Side Acute Care Service on 7 July through to the events on 14 August.
  1. [81]
    Under cross-examination, Dr van de Hoef gave evidence that your impairment, that is, the illness you were suffering, was getting worse during that period.
  1. [82]
    Dr van de Hoef also recognises that it would have taken a lot for you to make the phone call and go to the appointment with the Bay Side Acute Care Service and the fact that you did these things really shows how serious your illness was at that point.
  1. [83]
    During this period there were a number of stresses that added to the illness that you were suffering, including the physical violence from the deceased. There was also the emotional abuse. You were chronically sleep deprived. Dr van de Hoef recognises that you were getting more and more isolated and more and more desperate.
  1. [84]
    Dr van de Hoef also refers to you under-reporting your own symptoms. This was under-reporting or minimising symptoms both before the offence and in hindsight after the event. Dr van de Hoef is of the opinion that this personality style is consistent with your perceived role as carer for everyone in your life and over time this became exacerbated with an increasing sense of hopelessness.
  1. [85]
    It is in these circumstances that Counsel on your behalf has ultimately submitted that you are less criminally culpable than the offending considered by the Court of Appeal in R v Potter; ex parte Attorney-General.
  1. [86]
    Another key factor to be considered pursuant to s 9(3) of the Penalties and Sentences Act is risk to the community. It is submitted on your behalf that the risk to members of the public is non-existent.
  1. [87]
    In particular, reliance is placed on the comments by the psychiatrists in support of this conclusion.
  1. [88]
    Dr van de Hoef expressly states in the conclusion of her written report that the risk to others is non-existent.
  1. [89]
    This is confirmed by the other psychiatrists in the cross-examination before the Mental Health Court:
  1. (a)
    Dr Hopkins expresses the opinion that he does not consider that you are a risk to the community.
  1. (b)
    Dr Arthur concludes that there is no risk to others.
  1. [90]
    In addition to these views, Counsel on your behalf points to your age of 69 years, that you have no criminal history, and no history of violence, and that the offending occurred in circumstances which are unable to be replicated. It is in these circumstances that it is submitted that there is no risk to the community.
  1. [91]
    If there is any risk, it is a risk to yourself and with the support of family and others that risk can be minimised.
  1. [92]
    I turn now to looking at the comparative authorities.
  1. [93]
    In R v Pringle; ex parte Attorney-General (Qld) the Attorney-General appealed on the basis that a sentence of nine years imprisonment with no declaration of a serious violence offence under s 161B of the Penalties and Sentences Act was manifestly inadequate. The appeal was ultimately dismissed.
  1. [94]
    In that case, the respondent pleaded guilty to unlawfully killing his partner. He manually strangled her until she was unconscious, then removed the three children who were present to another room. He subsequently stabbed his unconscious partner twice in the left part of her chest. The two stab wounds to the chest were the cause of death, with one perforating the heart and penetrating the aorta and the other passing through the left lung and exiting the back of the chest. President McMurdo, with whom Justices Muir and Gotterson agreed, relevantly stated:
  1. “[33]
    The most relevant purposes of sentencing under s 9(1) Penalties and Sentences Act in the circumstances of this case were the protection of the Queensland community from the offender[1] and punishment.[2] That was because the respondent's mental illness which resulted in his diminished responsibility for the killing made purposes of deterrence[3]and denunciation[4] of lesser significance than otherwise because of his limited moral culpability: Muldrock v The Queen[5] and R v Yarwood.[6] As this was an offence of violence, the sentencing court was required to have regard primarily to the risk of physical harm to any members of the community;[7] the need to protect any members of the community from that risk;[8] the circumstances of the offence;[9] the nature or extent of the violence used;[10] the past record of the respondent, including any attempted rehabilitation;[11]his antecedents, age and character;[12] any remorse;13] any relevant psychiatric report;[14]and anything else about the safety of members of the community that the court considers relevant.[15]”
  1. [95]
    Further, at [37], President McMurdo further stated in respect of the decision in R v Potter:
  1. “Mackenzie AJA also noted that in cases where a mental condition that led to a finding of diminished responsibility is likely to be ongoing, a prisoner’s release from custody will depend on the course of the illness and of rehabilitation whilst in custody. As a result, sentencing judges often make allowances for mitigating factors in fixing the head sentence rather than in fixing an early date for release on parole. Judges are cognisant that a recommendation for release on parole at a particular date does not mean that the offender is necessarily released at that time. In cases of this kind, the progress of the prisoner's illness and rehabilitation will be major factors in the decision whether and when to grant release on parole.”
  1. [96]
    In respect of the comparator authorities considered in that case, her Honour concluded at [39]:
  1. “These cases suggest that the nine years sentence imposed with no early parole eligibility date and no declaration under s 161B(3), was within the established range for a spousal manslaughter based on diminished responsibility where there was a plea of guilty and no clear evidence of continuing danger to the community. Goodfellow was the only case where a declaration was made and there the head sentence was but seven and a half years imprisonment. It is true that the sentencing judge here did not give discrete reasons as to why she determined not to impose a declaration under s 161B(3). But the unequivocal inference from her Honour's reasons is that it was not warranted because of the mitigating features, namely, the timely plea of guilty, remorse, the nature of his diminished responsibility and, although a recovery was by no means certain, his slow but steady positive response to medication and treatment.”
  1. [97]
    Also, relevantly, at [40] her Honour recognised that the morally reprehensible act must be considered in the light of the diminished responsibility which reduced the moral culpability for the crime.
  1. [98]
    These principles are of assistance in considering the appropriate sentence in the current circumstances.
  1. [99]
    The earlier decision of R v Potter; ex parte Attorney-General (Qld) is also of assistance. Mackenzie AJA wrote the main judgment and Justice Keane agreed with those reasons with some additional comments of his own. Justice Chesterman dissented. The appeal against the sentence of eight years, with parole eligibility after three years, was dismissed.
  1. [100]
    A helpful starting point is a consideration of Justice Keane’s comments in agreeing with Justice Mackenzie. The case concerned a sentence to be imposed in respect of an intentional killing of a child by its mother on the basis of manslaughter by reason of the mother’s diminished responsibility. Justice Keane acknowledged that the starting point is that there has been taking of a human life. His Honour also recognised that the range of degrees of culpability is so wide that no establishedsentencing tariff can be applied to such cases. His Honour stated that it was especially so in the present case where it involved the human tragedy of a mother killing her child.
  1. [101]
    His Honour at [5] expressly stated that the human tragedy involved in that type of killing could not be regarded in the same category as other cases of manslaughter where the killing was intentional but the offender’s criminal responsibility was diminished by reason of the operation of s 304A of the Criminal Code.
  1. [102]
    His Honour recognised that the killing of a child by a mother whose capacity to understand or control her actions is diminished has been recognised as a human tragedy of an extraordinary kind. His Honour expressly contrasted this to cases involving what he described as thuggish brutality as between adults in a series of cases considered and referred to at [7] of his Honour’s reasons.
  1. [103]
    Justice Keane concluded that those cases, which all involved actual violence, did not provide a useful analogy with the killing of an infant child by its mother so far as the degree of criminality involved is concerned.
  1. [104]
    Further, Justice Keane stated at [8]:
  1. “I agree with Mackenzie AJA that considerations of deterrence have little relevance in a case such as this, and that the sentence imposed in this case was not manifestly inadequate.”
  1. [105]
    Justice Mackenzie’s reasons consider the appeal against the sentence of eight years imprisonment for manslaughter with a parole eligibility date after three years. His Honour considered the various cases which were put forward as potential comparators in that case.
  1. [106]
    At [12] his Honour noted:
  1. “Further, the level of sentence imposed has to be viewed in light of the Crown’s acceptance that a plea of guilty of manslaughter on the ground of diminished responsibility was the appropriate resolution of the matter. … If the case falls into a category where there is no discernible need to protect the public from repetition of similar conduct, a finding of diminished responsibility reduces the moral culpability of the offender and is therefore a mitigating factor in sentencing.”
  1. [107]
    That principle is equally applicable here, even though the current case involves the killing of a spouse rather than a mother killing a child. The review of cases by Justice Mackenzie in relation to spousal killing such as R v Lock (Unreported, Mullins J, 10 September 2001), R v Ward (indictment number 74/1999; 8 December 2000), R v Hill (Unreported, Atkinson J, 5 September 2001) indicate a range of eight to nine years in respect of a violent spousal killing. R v Goodfellow (Unreported, Fryberg J, 15 October 2004) was a sentence of seven and a half years with a serious violent offence declaration.
  1. [108]
    At [46] and [47] Justice Mackenzie states:
  1. “[46]
    … Often, the cases show that allowances are made for mitigating factors in fixing the head sentence rather than in fixing an early date for release on parole. However, there is nothing that mandates that approach. Provided an appropriate head sentence is imposed and there are mitigating circumstances to be allowed for, it is not contrary to principle to make a recommendation for release on parole at a point earlier than half the sentence. But the approach of imposing a head sentence, reduced to allow for mitigating circumstances, with no early recommendation does highlight that a recommendation for release on parole at a particular date does not mean that the offender is necessarily released at that time. In cases of the kind of which the present case is one, the progress of the offender’s illness and rehabilitation will be a major factor in deciding, within the corrections system, the actual date of release.”
  1. [47]
    However, it is not correct in principle to ignore ordinary mainstream mitigating factors which still have to be properly allowed for as well, either by reducing the head sentence, or making a recommendation at less than half the sentence. If the submission made before the sentencing judge, and here, is that imposing a head sentence that recognises the mitigating effect of diminished responsibility is sufficient allowance for all mitigating factors, and that fixing a release eligibility date that is less than half of the sentence on the basis of other mitigating factors involves ‘double dipping’, I do not agree that the submission is correct. With regard to the recommendation of eligibility for parole actually made, a 25 per cent allowance for the mitigating circumstances which would ordinarily be taken into account by making a recommendation, in a case where there has been a plea of guilty and there are other personal circumstances to be taken into account, is unremarkable. It is, indeed, less than is sometimes allowed.”
  1. [109]
    In that case, his Honour noted that the sentencing judge had differentiated between personal circumstances on the one hand and, on the other, the fact that the appellant was affected by a major depressive disorder at the relevant time. The head sentence was fixed taking into account the major depressive disorder which resulted in the respondent suffering from diminished responsibility. Then, in fixing a date for parole eligibility, the sentencing Judge took into account the other personal circumstances including by inferring that her time in prison would be more onerous because she continued to suffer from the major depressive disorder. His Honour concluded that that approach is not beyond a proper exercise of the sentencing discretion.
  1. [110]
    Counsel on your behalf has submitted that:
  1. (a)
    It would be open for the court to conclude that the criminality involved in the current offending was less serious than in R v Potter.
  1. (b)
    Any sentence to be imposed in the current circumstances would not be appropriate as a vehicle for general deterrence.
  1. (c)
    The need for protection of the community is absent here.
  1. (d)
    The personal circumstances of your ongoing mental illness, your plea of guilty and your history of physical, verbal and emotional abuse are some of the factors that can be taken into account in setting a parole eligibility date.
  1. [111]
    Consistent with the comments in R v Potter it is submitted that it would be appropriate for the court to structure a sentence by reflecting your criminal culpability in the head sentence, taking into account the finding of diminished responsibility, and then taking into account your personal circumstances in respect of setting a parole eligibility date.
  1. Sentence
  1. [112]
    In light of the authorities, I consider that the appropriate way to structure the sentence today is to:
  1. (a)
    Impose a head sentence which reflects your criminal culpability in all of the relevant circumstances, including that you pose no on-going risk to the community and that the sentence is not a vehicle for general deterrence.
  1. (b)
    Set a parole eligibility date taking into account:
  1. (i)
    The desirability of on-going supervision to assist in providing you with ongoing support and treatment for your mental health; and
  1. (ii)
    Your personal circumstances. These include your plea of guilty, your on-going mental illness and your history of physical, verbal and emotional abuse, that the particular circumstances of the offending arose out of a tragic chain of events including the deceased’s mental illness which lead to your own mental illness and that you have taken considerable steps towards rehabilitation as evidenced by treatment of your mental illness and gainful employment whilst in custody.
  1. [113]
    In coming to an appropriate sentence in this case, I have taken into account your antecedents. These include your age, your mental illness and on-going treatment, the absence of a criminal history, your expression of remorse, the time that you have spent in custody and the progress towards rehabilitation that you have shown through engaging with treatment and also undertaking employment in custody and your plea of guilty.
  1. [114]
    Consistent with the authorities and in the particular circumstances of the current offending, the purpose of which I am sentencing you today is:
  1. (a)
    to punish you to an extent or in a way that is just in all of the circumstances; and
  1. (b)
    to provide conditions which I consider will help you to be rehabilitated.
  1. [115]
    While the protection of the Queensland community from you is a relevant factor under the Penalties and Sentences Act, I am satisfied on the evidence that you present no on-going risk to the community.
  1. [116]
    In the circumstances I consider it appropriate to structure a sentence in a way that declares the time that you have spent in custody as time already served, to impose a head sentence reflecting your criminal culpability for the offending in light of yourdiminished responsibility and to impose a parole eligibility date which takes into account your various personal circumstances and your plea of guilty.
  1. [117]
    Given the amount of time you have spent in custody, a parole eligibility date of today is appropriate. While this is less than one third of the sentence, this takes into account the mitigating factors and that there is no need for you to serve any further time in custody by way of punishment.
  1. [118]
    The parole authorities will be able to consider when it is an appropriate time to release you from custody ensuring that you have the necessary supports in place.
  1. [119]
    Further, the supervision and support under parole for an extended period will also assist in ensuring that you have access to any ongoing mental health treatment and supports which are necessary. It may also assist you in developing strategies and skills to help you cope with your mental health.
  1. [120]
    In respect of the criminal culpability to be reflected in the head sentence, I consider that the starting point for the sentence is less than 10 years, and an appropriate sentence is in the range of 8 to 9 years as reflected in the decisions considered by Justice Mackenzie in R v Potter. I do not accept the Crown’s submission that the starting point is 10 years or more given the particular circumstances of this case and the psychiatric evidence.
  1. [121]
    I expressly accept the evidence of Dr van de Hoef in respect of the severity of your mental illness and the impact it had on your capacity at the time of the offending. While there was planning involved in the offending, that needs to be viewed in the context of your mental illness as described by the psychiatrists.
  1. [122]
    To avoid any potential double discounting with the setting of a parole eligibility date, the head sentence is only to be mitigated by the level of criminal culpability. Your personal circumstances and plea are to be taken into account in setting the parole eligibility date.
  1. [123]
    In these circumstances, a head sentence of 8.5 years is appropriate with parole eligibility set as of today. What this means is subject to you making an application for parole and the parole authorities being satisfied it is appropriate for your release, you will be able to return to the community to serve out the balance of your sentence. This will provide a lengthy period of support and supervision in respect of your on- going mental health and future goals.
  1. [124]
    Accordingly:
  1. (a)
    In respect of the pre-sentence custody, I direct that time spent in custody from 18 August 2020 to 3 August 2023 being a total of 1,081 days be declared as time already served under the sentence.
  1. (b)
    I sentence you in respect of the single count on the indictment to a term of imprisonment of eight and a half years.
  1. (c)
    I set a parole eligibility date as of today, 4 August 2023.
  1. (d)
    A conviction is to be recorded.
  1. [125]
    I also direct that the reports of Dr Hopkins dated 28 January 2022, Dr van de Hoef dated 7 October 2022 and Dr Arthur dated 12 October 2022 be provided to the parole authorities to assist in your management and supervision.

Footnotes

[1]Penalties and Sentences Act 1992 (Qld), s 9(1)(e).

[2]Above, s 9(1)(a).

[3]Above, s 9(1)(c).

[4]Above, s 9(1)(d).

[5](2011) 244 CLR 120, 139 [54].

[6][2011] QCA 367, [22]–[26].

[7]Penalties and Sentences Act 1992 (Qld), s 9(4)(a).

[8]Above, s 9(4)(b).

[9]Above, s 9(4)(d).

[10]Above, s 9(4)(e).

[11]Above, s 9(4)(g).

[12]Above, s 9(4)(h)

[13]Above, s 9(4)(i).

[14]Above, s 9(4)(j).

[15]Above, s 9(4)(k).

Close

Editorial Notes

  • Published Case Name:

    R v Venn

  • Shortened Case Name:

    R v Venn

  • MNC:

    [2023] QSC 173

  • Court:

    QSC

  • Judge(s):

    Williams J

  • Date:

    04 Aug 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Channon v R (1978) 20 ALR 1
2 citations
Jump To
Cite 1 - (1978) 20 ALR 1
Cite 2 - (1978) 20 ALR 1
Muldrock v The Queen (2011) 244 CLR 120
1 citation
Jump To
Cite 1 - (2011) 244 CLR 120
Pickering v The Queen (2017) 260 CLR 151
2 citations
Jump To
Cite 1 - (2017) 260 CLR 151
Cite 2 - (2017) 260 CLR 151
R v Johnstone (1987) 45 SASR 482
2 citations
Jump To
Cite 1 - (1987) 45 SASR 482
Cite 2 - (1987) 45 SASR 482
R v Potter; ex parte Attorney-General [2008] QCA 91
2 citations
Jump To
Cite 1 - [2008] QCA 91
Cite 2 - [2008] QCA 91
R v Pringle; ex parte Attorney-General [2012] QCA 223
2 citations
Jump To
Cite 1 - [2012] QCA 223
Cite 2 - [2012] QCA 223
R v Yarwood [2011] QCA 367
1 citation
Jump To
Cite 1 - [2011] QCA 367
R v Zarnke [2019] QCA 141
2 citations
Jump To
Cite 1 - [2019] QCA 141
Cite 2 - [2019] QCA 141

Cases Citing

Case NameFull CitationFrequency
R v Hill [2024] QSC 1961 citation
1

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