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IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
DIRECTOR OF PUBLIC PROSECUTIONS
v
OATLEY, Seth (a pseudonym)
--JUDGE:
HIS HONOUR CHIEF JUDGE ROZENES
WHERE HELD:
Melbourne
DATE OF HEARING:
31 July, 22 October 2014
DATE OF SENTENCE:
27 November 2014
CASE MAY BE CITED AS:
DPP v OATLEY, Seth
MEDIUM NEUTRAL CITATION:
[2014] VCC 1995
REASONS FOR SENTENCE
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Subject:
CRIMINAL LAW – reckless conduct endangering persons – failing to
register birth of a child – living in squalor – death of one child – no prior
criminal history – Verdins principles – rehabilitation
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APPEARANCES:
Counsel
Solicitors
For the DPP
Ms S Borg
Office of Public Prosecutions
For the Accused Seth Oatley
Ms H Bonney
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
!Und efined Boo km ar k, I
HIS HONOUR:
1
I intend to use pseudonyms in these sentencing reasons in order to protect the
identity of the children involved.
2
Seth Oatley, you have pleaded guilty to two charges of reckless conduct
endangering persons, charges 1 and 2. You have also pleaded guilty to one
related summary offence of failing to register the birth of a child. You have no
prior convictions.
3
The charge of reckless conduct endangering persons carries a maximum
penalty of 5 years’ imprisonment while the summary charge of failing to register
the birth of a child, a maximum penalty of 10 penalty units.
4
The facts of the case were opened by Ms Borg and are contained in the
Summary of Prosecution Opening, which formed part of a folder of materials
marked as Exhibit A in these proceedings. Three booklets of photographs were
also tendered, Exhibits B and F, along with a Victim Impact Statement, Exhibit
C. I will refer to that Victim Impact Statement in due course.
5
I need to say something about the course of these proceedings. You were jointly
charged with your wife, and both of you were arraigned before me on
31 July 2014 where you both pleaded guilty. During the prosecutor’s opening
on that day, your wife collapsed in the dock and was taken to hospital by
ambulance. The proceeding was adjourned and relisted for hearing on
22 October of this year. On 16 October your wife died from major organ failure,
which was apparently alcohol related, and I have been informed that a notice
of discontinuance is to be filed with respect to her charges.
6
The two principal charges arise out of the occupation by you and your family of
your domestic property at Delahey. Charges 1 and 2 cover a period between 1
August 2010 and 1 August 2012 when the family unit consisted of you and your
wife and two children, I shall call Jake and Spencer, who were born in 2004 and
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DPP v Oatley
2006, respectively. At the time of the offending, Jake was aged between 6 and
8 years of age and Spencer between 3 and 5 years.
7
Your living situation was described in the following terms in the Prosecution
Opening and not contested by the defence: “The floor areas were covered with
rubbish which included rotting food, opened food bags, bottles, opened cans of
cat food and uneaten food. Most of the walls were covered in filth”. A generous
description if one has regards to the photographs. Your children were at risk of
sustaining a serious injury either while manoeuvring around the rubbish that
covered the floors, or through contracting a disease due to the state of the
environment. Sadly, in relation to Spencer, this is precisely what happened.
The photographs of the premises, exhibit 3, are most horrific and only exceeded
in shock value by the autopsy photographs of Spencer, which were simply
pathetic and highly disturbing. It is hard to believe that anyone could have
permitted humans, let alone young children to live in such squalor.
8
Whilst the Department of Human Services has had intermittent involvement with
your family since 2006, apparently nothing was done. It is highly likely that the
“authorities” did not appreciate just how shocking the inside of the house was
and perhaps had no knowledge of the fact that young children lived there. Had
this been known, it is inconceivable that the children would have been permitted
to remain with you. The police officer who attended your premises following
Spencer’s death stated that in the 26 years he has been a police officer he had
never seen a house in such a state of squalor. He said the smell was immense
and sickening and the house was not fit to be lived in by humans or even
animals. He said it was just impossible to convey by words the filth and the
smell.
9
Spencer was born, on the floor at home, 7 weeks’ premature and required
specialist medical care for 3 weeks. Otherwise neither child had ever been
taken to a doctor. Equally, neither child was enrolled at school, although your
wife pretended that they were. She fabricated stories about their progress at
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DPP v Oatley
school, showed schoolwork and pretended that she was working in the school
tuckshop. The children were completely illiterate. Frankly, it is hard to believe
that you had no idea that the children were completely neglected and
uneducated.
10
As it transpired, on 23 July 2012 your youngest child, Spencer, cut his left big
toe on an open cat food tin that had been discarded on the ground. About a
week later, he complained of a sore neck and your wife gave him ‘Painstop’, a
children’s analgesic.
On 1 August 2012 your wife discovered Spencer
unresponsive at home and drove him to the nearby ambulance station. He was
observed by paramedics to be cold to the touch, with grey mottled skin. Efforts
at resuscitation were unsuccessful and at about 4:00 pm on 1 August 2012,
Spencer was pronounced dead. An autopsy revealed that there was no natural
cause underlying Spencer’s death, but that the dressing covering the cut on his
toe showed a moderate growth of bacteria. The cause of death was stated to
be “unascertained”. A paediatric forensic expert was of the opinion that there
could have been a number of causes for Spencer’s death, including tetanus,
botulism, or food poisoning but that there was no conclusive evidence as to
what caused his death.
11
When police attended at your home after Spencer’s death, they were
overwhelmed by the conditions in which they found you living. You were both
interviewed by police on 14 March 2013. Your wife agreed that your premises
were unfit for humans to live in and that it had been in a state of squalor for
some two or three years prior to Spencer’s death. When asked why she had
never sought help with the house, she stated that “It’s embarrassing, it’s
shameful, it’s disgusting. It’s unacceptable. It was sheer and utter filth”. You told
police that you believed that your wife had “done a fairly good job” bringing up
the boys and that you did not feel that either of you was responsible for
Spencer’s death.
12
VCC:MR
In her report dated 29 July 2014, exhibit 2, forensic psychologist, Gina Cidoni,
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DPP v Oatley
assessed your wife as having an IQ of 79, which she said fell within the
borderline range and suffering from “severe psychopathology”, including
disconnection from reality, unusual sensory and perceptual experiences,
delusions, disorganised thinking, bizarre behaviour and disorientated or
tangential thought processes. Ms Cidoni proposed a diagnosis of Diogenes
Syndrome which is characterised by social withdrawal, extreme self and house
neglect, hoarding and refusal of help.
13
Ms Elizabeth Warren provided a report dated 28 July 2014, exhibit 4, and gave
evidence on your behalf. She said that “the situation of squalor and neglect
developed insidiously and was enabled to continue by [your] psychological state
of habituation and accommodation” She said that habituation was a general
kind of adaptation and likened it to a deep sea diver who becomes habituated
to water pressure. She said that you gradually became inured to the conditions
and you adjusted to them in order to maintain harmony in the house. She said
that adjustment in this context involved compromise and conciliation. She
referred to aspects of your background, the fact that you were teased at school
for your unusual gait, the result of you having shortened tendons in your ankle,
which, despite undergoing surgeries and treatments as a child, has never been
remedied. After completing Year 11 in 1988, you left school to start an electrical
engineering apprenticeship and have worked either as an engineer or a
draftsman throughout your working life.
14
A few days after Spencer’s death you attempted suicide by overdosing on
prescribed medication. You were admitted to the Royal Melbourne Hospital
and referred to a psychologist. You attempted suicide a second time on 28 July
2014. She diagnosed you with Generalised Anxiety Disorder and Dependent
Personality Disorder. She was of the opinion that, due to deep-set insecurity,
you were unable to successfully fulfil the multiple roles of breadwinner,
housekeeper, and assertive husband that would have been required to remedy
the situation that ultimately developed. She said you were in “massive denial”
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in relation to the state of your house and the death of your son, and that you
would be vulnerable in a custodial setting.
15
Ms Bonney said that throughout 2010–11 the state of your home was the cause
of regular arguments between the two of you. On a number of occasions you
hired a skip in order to clear the house out, but shortly afterwards it was back
to its squalid state. During the arguments about the house your wife would
threaten to leave and take the boys with her if you told anyone about the state
of the house. She did in fact leave with the boys for a week in August 2011 and
was unable to be contacted.
She said that it was your fear that if you
complained about the conditions, your wife would simply leave with the boys
and you would never see them again that explained your conduct. Ms Bonney
said that you simply became compliant.
16
Looking at the photographs it is difficult to understand how you could have
organised yourself to carry on your employment and to participate in the
community. Where would you have washed, dressed, cooked, eaten or even
rested?
The bathroom, kitchen and toilet were absolutely despicable and
unusable. I find it very difficult, if not impossible, to accept that habituation, as
Ms Warren speaks of, could have inured you to the conditions of the house.
Every day you could not have avoided the contrast between what you saw at
home and what you experienced in the community. I do not accept that this is
explicable in the way described by Ms Warren when she likened your
acceptance of the conditions to that of the deep sea diver or the concentration
camp victim accepting their shocking conditions. There is no comparison. The
concentration camp inmate has no choice. You did have a choice.. You chose
to put up with the impossible conditions it in the belief that it would keep your
wife from leaving you. You put that consideration ahead of consideration for
the health and wellbeing of your young family. A responsible parent would have
removed the children, called in the authorities, done something other than
arrange for a couple of skips and then let it all happen again. Your contribution
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to the care of your children was, I must say, nothing short of shameful.
17
Following the death of Spencer, Jake, your eldest child, was made the subject
of a Guardianship Order and permanently removed from your care. That was
inevitable. It is just tragic that it took the death of his brother for the authorities
to realise what needed to be done. I understand that a coronial hearing has not
yet taken place and I would encourage the coroner to conduct one. It seems to
me that in the face of complaints by neighbours and the involvement of the
Department of Human Services, no one seemed sufficiently informed about the
risk that the conditions posed to human life, particularly that of the infants. The
neighbours would have known that children lived in the house and if that fact
was known to the authorities then too little was done to ensure that they were
protected.
18
In every sense this is a truly tragic case. I must take into account not only the
senseless loss of the life of Spencer, but the impact that his death, combined
with having to live in the conditions I have already described, had and continues
to have on your eldest child, Jake. This is plain from reading the Victim Impact
Statement, Exhibit B. While the Statement refers to a number of matters that
do not relate directly to the charges before me, I take it into account so far as it
is relevant. As an aside, it is very encouraging to see that Jake is now in a
stable home environment, attending school, and appears to be prospering.
Finally, in sentencing you I must bear in mind that no conclusive cause has
been found that directly links the state of your home to your son’s death.
19
On your behalf it was submitted that I take into account the following matters by
way of mitigation:
(a)
You are of prior good character, with no prior criminal history and
a strong work history which makes your prospects of rehabilitation
excellent;
(b)
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Extra-curial punishment by way of the death of a child and the
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DPP v Oatley
removal of another child into the custody of the Department of
Human Services and now the death of your wife is considerable
and warrants substantial mitigation of your sentence;
(c)
The need for specific deterrence or protection of the community
was not great in this case;
(d)
You have, since the offending, been diagnosed with Generalised
Anxiety Disorder and Dependent Personality Disorder; and
(e)
You pleaded guilty at the earliest opportunity, which is indicative
of remorse and a willingness to accept responsibility for your
offending.
20
I was urged by your counsel to consider the application of the principles
espoused in R v Teh [2003] VSCA 169, where the Court of Appeal considered
the significance of an offender’s personal consequences where their criminal
conduct had caused the death of a loved one. Vincent JA said the following, at
[20]:
"There are a number of respects in which the fact that a perpetrator of
an offence personally experiences distress, injury or loss as a
consequence of its commission can assume relevance in the
determination of an appropriate sentence. Generally it will take its
place as one of the matters to be taken into account in the
development of an appropriate synthesis. It may assume significance
in the assessment of the just punishment required, the weight to be
given to expressions of remorse or to general and specific deterrence
in the circumstances of the particular matter."
21
The basic purposes for which a court may impose a sentence are punishment,
deterrence (both specific and general), rehabilitation, denunciation, and
protection of the community. In sentencing, I must have regard to a range of
matters such as the seriousness of the offence, your culpability for it, your
personal circumstances and those of the victim if any. I am required to balance
the interests of the community in denouncing criminal conduct with the interests
of the community in seeking to ensure that as far as possible offenders are
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rehabilitated and reintegrated into society.
22
In sentencing you I intend to take into account your personal grief at the loss of
both your children and your wife. However, yours was a gross breach of the
duty owed to your children and I consider it places your offending at the top end
of the range for this type of offence.
23
A diagnosis of Generalised Anxiety Disorder, made since the commission of the
offences, activates Verdins principles 5 and 6. That is, the existence of this
condition at the time of sentencing means that the sentence I impose will weigh
more heavily on you than it would on a person in normal health (principle 5),
and there is a serious risk that imprisonment would have a significant adverse
effect on your mental health (principle 6). I intend to mitigate your sentence, to
a degree, on this basis.
24
In relation to the diagnosis of Dependent Personality Disorder, I am satisfied on
the material provided in Exhibit 2 that this condition was active at the time of
your offending.
This, then, engages Verdins principles 1, 3, and 4, and,
consequently, I find that your moral culpability is slightly reduced and the need
for general and specific deterrence moderated, but not eliminated as a
sentencing consideration.
25
Your sentence is less severe than I would have imposed had you pleaded not
guilty.
Your early plea of guilty is reflective of a willingness to accept
responsibility for your offending. Your plea saves time, expense and the need
for witnesses to give evidence and is also reflective of remorse.
This is
especially so in such an emotionally fraught case as this one.
26
Would you please stand.
27
On each of charge 1 and 2, reckless conduct endangering persons, you are
convicted and sentenced to be imprisoned for 3 years. On the summary offence
of failing to register the birth of a child, you are convicted and fined $100 and I
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grant a stay of one month for the payment of the fine.
28
I propose to suspend your sentence for three years. The decision to suspend
your sentence was a difficult one for me. The decision was finely balanced. In
the end I was persuaded that this was an appropriate disposition principally
because you wife had recently died. I believe that you have been sufficiently
punished already and that there would be no useful purpose to be served by
now sending you to prison. You have lost your children and your wife. Nothing
was more poignantly stated than when I was told that you have now cleaned up
the house, it is spotless, and that you sit there silently by yourself – there is no
one left.
29
Before I suspend the sentence, I am obliged to tell you that you have been
convicted and sentenced to a term of imprisonment, but that you will not have
to serve that sentence immediately.
However, if you commit an offence
punishable by imprisonment, either in Victoria or elsewhere, during the period
of the suspension, then you may be brought back to be further dealt with, and
absent exceptional circumstances, will be required to serve the suspended
sentence. Do you understand that?
30
OFFENDER: Yes.
31
HIS HONOUR: Very well. Section 6AAA of the Sentencing Act requires me to
state the total effective sentence and the non-parole period that I would have
imposed had you pleaded not guilty and been convicted.
Had you been
convicted after a trial, I would have sentenced you to 4 years' imprisonment with
a non-parole period of 2 years.
32
I make an order pursuant to s.464ZF of the Crimes Act. I do so because of the
seriousness of the offending and because it is by consent. I must tell you,
however, that notwithstanding the fact that you have consented, if you resist the
taking of a sample, reasonable force can be used to obtain that. Do you
understand that?
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33
OFFENDER: Yes.
34
HIS HONOUR: Very well. You may step out of the dock. Any other orders?
35
MS BORG: Just that Charge 2, that's concurrent?
36
HIS HONOUR: Yes.
37
MS BORG: It's just that it wasn't stated, so I thought I'd clarify.
38
HIS HONOUR: No, it is concurrent. You will need to prepare the 464ZF order.
39
MS BORG: We've got them here, Your Honour.
40
HIS HONOUR: I will make that. What is the police station that he is to attend
at?
41
MS BORG: Keilor Downs, Your Honour.
42
HIS HONOUR: Keilor Downs. Is that on the order?
43
MS BORG: No, Your Honour.
44
HIS HONOUR: I will write it in. I take it Keilor Downs is in Keilor Downs.
45
MS BORG: Yes.
46
HIS HONOUR: I will sign the first one of these on the Bench. I will do the rest
in chambers and have them handed out, but you need one for the accused.
Yes, thank you. Anything else?
47
MS BORG: No, Your Honour.
48
MS BONNEY: No, Your Honour.
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