R v Shirley Justins [2011] NSWSC 568 (26 May 2011)

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R v Shirley Justins [2011] NSWSC 568 (26 May 2011)

Last Updated: 1 November 2011

This decision has been amended. Please see the end of the decision for a list of the amendments.

Supreme Court

New South Wales

Case Title:	R v Shirley Justins

Medium Neutral Citation:	[2011] NSWSC 568

Hearing Date(s):	13 May 2011

Decision Date:	26 May 2011

Jurisdiction:	Common Law - Criminal

Before:	Latham J

Decision:	Convicted of the offence of Aid and Abet Suicide. You are sentenced to the rising of the Court

Catchwords:	CRIMINAL LAW - sentence - aid and abet suicide - relevant factors - plea of guilty - sentence already served adequately reflects criminality of the offending - rising of the court

Legislation Cited:	Crimes Act 1900

Cases Cited:	Justins v R [2010] NSWCCA 242

Texts Cited:

Category:	Sentence

Parties:	R - Regina Offender - Shirley Justins

Representation

- Counsel:	Counsel: M Tedeschi SC - Regina A Radojev - Offender

- Solicitors:	Solicitors: S Kavanagh - Solicitor for Public Prosecutions Essex Legal

File number(s):	2007/3825

Publication Restriction:

SENTENCE

The offender, Shirley Justins, pleaded guilty on 1 April 2011 to aiding and abetting the suicide of Graeme Wylie between 18 March and 22 March 2006. The plea was accepted by the Crown in full satisfaction of an indictment charging manslaughter as the principal offence. The plea came after the Court of Criminal Appeal quashed the offender's conviction for manslaughter by gross criminal negligence, following a trial in May and June of 2008 : see Justins v R [2010] NSWCCA 242.

The offence under s 31C(1) of the Crimes Act 1900 carries a maximum penalty of 10 years imprisonment. For reasons that are wholly related to the history of the prosecution arising out of the death of Mr. Wylie, it is not appropriate to impose any custodial penalty on the offender. It is nonetheless evident from the maximum penalty that the Legislature regards conduct which assists a person to commit suicide as a serious breach of the criminal law.

The agreed facts for the purpose of sentence are the following. Mr Wylie, the deceased, was born in 1934 and grew up in Tasmania. From 1957 until his retirement in 1983, he was employed with Qantas as a captain. The evidence at trial suggested that he was a proud, intellectually rigorous man. He had two daughters and had separated from their mother in 1976. Mr Wylie and the offender commenced cohabiting in 1988.

Mr Wylie and Ms Jenning (a co-offender who died following the trial) had been friends since the 1970s. Mr Wylie introduced the offender to Ms Jenning and they became close friends. Ms Jenning was active in a pro-euthanasia organisation.

In March 2003, Mr Wylie was diagnosed with Alzheimer's disease. Following his diagnosis, the disease progressed relatively swiftly. The evidence at trial established that Mr Wylie's conversation became increasingly limited, he forgot the names of old friends and of family members, he stopped reading and watching television and he appeared disoriented as to time and place. Mr Wylie's interests contracted and he became depressed.

By January 2005, Mr Wylie suffered severe cognitive impairment. By mid-2005 he rarely left the home.

In September 2005, Mr Wylie attempted suicide by cutting his wrists. The offender took him to a general practitioner who was not his usual doctor. The offender did not tell the doctor of Mr Wylie's diagnosis.

In late September 2005, Mr Wylie raised the idea of legal euthanasia with the offender and Ms Jenning. In October 2005, the offender, with the assistance of Ms Jenning, applied for legal euthanasia to the organisation Dignitas in Switzerland.

Dignitas contacted Dr Phillip Nitschke of EXIT International. Dignitas stated that they required their patients to have full command of their faculties and that they were concerned about Mr Wylie's Alzheimer's disease. Dignitas asked Dr Nitschke to assess Mr Wylie's cognitive function.

On 16 November 2005, Dr Nitschke visited Mr Wylie at his home. According to Dr Nitschke's evidence, Mr Wylie was unable to recall his date of birth or the number, age or sex of his children Notwithstanding this, on 24 November 2005 Dr Nitschke informed Dignitas that although Mr Wylie suffered cognitive impairment, he retained "significant insight" and wanted to travel to Switzerland to die.

In December 2005 Dignitas informed the offender that Mr Wylie's application had been rejected, due to concern about his mental capacity. Shortly thereafter, Ms Jenning offered to travel to Mexico to buy pentobarbitone for the offender to give to Mr Wylie.

On 2 February 2006, Mr Wylie was admitted to hospital after a fall following a failed suicide attempt. He presented with a fractured left hip and an injured right shoulder. The offender gave evidence that while he was in hospital, she discussed with him Ms Jenning's proposed trip to Mexico.

In February 2006, the offender, Ms Jenning and Mr Wylie agreed that Ms Jenning would fly to Mexico to purchase Nembutal. Accordingly, on 16 February 2006, Ms Jenning booked a flight to Los Angeles, departing 13 March.

On 20 February 2006, Mr Wylie was discharged from hospital. Three days later the offender took him to see the doctor they had previously consulted for a Maxolon prescription. Maxolon is an anti-nausea drug used to aid in the ingestion of pentobarbitone. The offender did not tell that doctor about the plan to give Mr Wylie pentobarbitone. By this time, Mr Wylie could not read and had very little conversation.

On 3 March, the offender and Mr Wylie attended a solicitor. The offender produced Mr Wylie's will dated 1995 that bequeathed half of his estate (worth about $2 million) to the offender and 25% each to his two daughters. The offender instructed the solicitor to change the will so that each daughter received $100,000 and the balance was payable to the offender. This will was signed by Mr Wylie on 15 March 2006, after the offender had obtained a medical certificate for him from the doctor who had prescribed the Maxolon. The offender did not tell the solicitor that Mr Wylie suffered advanced Alzheimer's disease. The offender has since acknowledged that Mr Wylie did not have testamentary capacity at this time.

On 18 March 2006, Ms Jenning returned to Australia from Mexico, with at least one bottle of pentobarbitone. The next day she gave the phial of pentobarbitone to the offender.

On the morning of 22 March 2006, the offender made the pentobarbitone available to Mr Wylie in a glass. According to the offender, Mr Wylie became unconscious within several minutes. The offender then drove to Ms Jenning's home in Woollahra and gave her the empty Nembutal bottle. The offender then went shopping with a friend, returning around 12 p.m. She did this in order to raise an alibi for the time of death. When she returned home, Mr Wylie was dead.

The offender then made various unsuccessful attempts to obtain a death certificate for Mr Wylie. She contacted a medical practice and a doctor from that practice attended at the home. That doctor refused to issue a full death certificate because she had not seen Mr Wylie in the two months prior to his death.

After the doctor left the home, Ms Jenning arrived. Police were called to arrange the transport of the deceased's body to the morgue for a post mortem. The offender and Ms Jenning told both the attending doctor and the police that they believed the drug Aricept, which was prescribed to Mr Wylie for his Alzheimer's disease, was the cause of his death.

On 24 March 2006 a post mortem on Mr Wylie established the cause of death as pentobarbitone toxicity. Mr Wylie's brain showed signs of advanced Alzheimer's disease.

The offender was charged with murder on 27 January 2007. An alternative count was in the form of the present charge. At trial the offender pleaded not guilty to both counts. However, midway through the trial the offender pleaded guilty to the alternative charge, which was not then accepted by the Crown. She gave sworn evidence during the trial admitting her involvement in both the purchase of the Nembutal and in its administration to Mr Wylie.

The offender was found guilty of manslaughter by gross criminal negligence on 19 June 2008. She was sentenced on 12 November 2008 to periodic detention, with a non-parole period of 22 months to date from 21 November 2008, expiring 20 September 2010, and a parole period of eight months to expire on 20 May 2011. It follows that the offender has served the entirety of that sentence, which was imposed in respect of a more serious offence than that for which the offender presently stands to be sentenced.

A report under the hand of Mr Borenstein, a clinical psychologist, describes the offender having "an unremarkable personal and family history", and a strong work ethic since the age of 16. The offender has no prior criminal history. She describes herself as "law abiding". The offender thought of Mr Wylie as her life partner. Her description to the psychologist of the events leading up to his death portray the offender as the passive partner in the relationship with the deceased, and in her dealings with Ms Jenning. The offender described Ms Jenning as quite forceful and dominating. The offender claimed that she only ever acted in the best interests of Mr Wylie, who had repeatedly instructed her that he did not wish to go into care.

The Crown takes issue with this aspect of the offender's account, in that the offender's role in changing her partner's will justifies the conclusion that her assistance in his suicide was not entirely altruistic, but was motivated to some degree by self-interest. Whilst this submission appears to be well founded, it does not materially affect the exercise of the sentencing discretion in the circumstances of this case. That is because the Crown concedes that the sentence the offender has already served adequately reflects the criminality of the offending on the present charge.

That concession is properly made. Had the Court been called upon to sentence the offender on the present charge in June 2008 when the plea of guilty was first offered, no greater penalty than that already imposed would have been justified. Accordingly, the only order which is appropriate in the present circumstances is that the offender be sentenced to the rising of the Court.

Ms Justins, you are convicted of the offence of Aid and Abet Suicide. You are sentenced to the rising of the Court.

**********

Amendments

12 Jul 2011 "The solicitor" should read "the offender" Paragraphs: paragraph 15

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R v Shirley Justins [2011] NSWSC 568 (26 May 2011)

Authorities Cited1

Referred to (1)