Citation: R v Shirley Justins [2011] NSWSC 568
Court: Supreme Court of New South Wales
Date: 26 May 2011
Judge(s): Latham J
Background
The offender was the long-term partner of a man who died in March 2006 after ingesting pentobarbitone (a barbiturate). The deceased had been diagnosed with Alzheimer's disease in 2003, and his condition had deteriorated significantly by the time of his death. The offender, together with a co-offender (who later died), arranged the purchase of the drug from Mexico and made it available to the deceased on the morning of 22 March 2006.
The offender was originally charged with murder and, at trial in 2008, was convicted of manslaughter by gross criminal negligence. She was sentenced to periodic detention with a non-parole period of 22 months. However, the Court of Criminal Appeal quashed that conviction in 2010: see Justins v R [2010] NSWCCA 242.
Following the quashing of her manslaughter conviction, the offender pleaded guilty on 1 April 2011 to the lesser charge of aiding and abetting suicide under s 31C(1) of the Crimes Act 1900. That plea was accepted by the Crown in full satisfaction of the indictment.
Legal Issues
- What sentence was appropriate for the offence of aiding and abetting suicide under s 31C(1) of the Crimes Act 1900, given the offender had already served a sentence imposed for the more serious offence of manslaughter?
- Whether the offender's role in altering the deceased's will, and any financial motivation that may have accompanied it, materially affected the sentencing exercise.
Decision
The central sentencing question was whether any further custodial penalty was warranted, given the offender had already served the entirety of the periodic detention sentence imposed in 2008 for the more serious manslaughter conviction. The Crown conceded that the sentence already served adequately reflected the criminality of the aiding and abetting suicide offence. Latham J accepted that concession as properly made.
Her Honour reasoned that had the court been required to sentence the offender on the aiding and abetting charge in June 2008, when the guilty plea was first offered mid-trial, no greater penalty than that already imposed would have been justified. The offence carries a maximum of 10 years imprisonment, reflecting the legislature's view that assisting suicide is a serious criminal matter. Nonetheless, the particular history of this prosecution made a further custodial penalty inappropriate.
The Crown raised the offender's role in changing the deceased's will shortly before his death, a change that disproportionately benefited her and was made without disclosing the deceased's advanced Alzheimer's disease to the solicitor. The offender later acknowledged the deceased lacked testamentary capacity at that time. Latham J accepted that this conduct suggested the offender's motivations were not entirely altruistic. However, given the Crown's concession on sentencing, this finding did not alter the outcome.
Orders Made
- The offender was convicted of the offence of aiding and abetting suicide.
- The offender was sentenced to the rising of the court (meaning no additional custodial or other penalty was imposed beyond the conviction itself).
Key Takeaways
- Where an offender has already served a sentence for a more serious charge arising from the same facts, and that sentence is subsequently quashed on appeal, a court may find that the time served adequately reflects the criminality of the lesser offence to which the offender later pleads guilty.
- Under s 31C(1) of the Crimes Act 1900, aiding and abetting suicide carries a maximum penalty of 10 years imprisonment, reflecting the legislature's treatment of such conduct as a serious criminal matter.
- A sentence to "the rising of the court" is a formal conviction with no additional penalty imposed; it remains a conviction on the offender's record.
- Evidence of financial self-interest (here, the alteration of the deceased's will) may be relevant to the question of motivation in a sentencing for this type of offence, but will not necessarily alter the sentencing outcome where other factors, particularly time already served, are determinative.
- The Supreme Court confirmed that where a guilty plea to an alternative charge was first offered mid-trial but not then accepted by the Crown, the court will assess the appropriate sentence by reference to what would have been warranted at that earlier point in time.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 31C(1) (aiding and abetting suicide; maximum penalty 10 years imprisonment)
Cases
- Justins v R [2010] NSWCCA 242 (Court of Criminal Appeal decision quashing the manslaughter conviction)