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37
Court of Criminal Appeal 19 August 2004

R v George

[2004] NSWCCA 247

Also reported as (2004) 149 A Crim R 38
Homicide
CRIMINAL LAW MANSLAUGHTER CRIMINAL NEGLIGENCE PLEA OF NOT GUILTY TRIAL BY JUDGE ALONE APPEAL AGAINST SEVERITY OF SENTENCE

Citation: R v George [2004] NSWCCA 247
Court: NSW Court of Criminal Appeal
Date: 19 August 2004
Judge(s): Wood CJ at CL, Adams J, Kirby J

Background

The applicant, a 58-year-old man, was convicted after a judge-alone trial in the District Court of the manslaughter of his 86-year-old mother, for whom he was the primary carer. The conviction arose from criminal negligence: a gross and wilful failure to provide her with proper nutrition, hydration, medication, and medical care. When ambulance officers attended the home in April 2000, they found the deceased bedridden, covered in pressure sores, and in severely degraded conditions requiring them to cut bed sheets that had adhered to her body.

The applicant had lived at the family home in Windsor with his mother and a developmentally disabled sister. He had never married, had been largely unemployed throughout his life, and had a strained relationship with his brothers, who visited only in his absence. His mother had reportedly resisted home care and hospitalisation, describing certain treatments as "the most cruel thing on earth."

At first instance, Judge Bellear sentenced the applicant to seven years' imprisonment with a non-parole period of four years. The applicant sought leave to appeal against the severity of that sentence on two grounds: that insufficient weight had been given to his psychological condition, and that the sentence was manifestly excessive.

  • Whether the sentencing judge gave adequate weight to evidence that the applicant was suffering from Asperger's Syndrome and related psychological problems arising from social dysfunction and a solitary life
  • Whether the sentence of seven years with a four-year non-parole period was manifestly excessive in all the circumstances
  • The proper role of comparative case analysis in sentence appeals for manslaughter

Decision

The Court of Criminal Appeal found that the sentencing judge had given insufficient weight to psychological evidence before the court. Although the evidence did not establish a severe psychiatric or personality disorder, it demonstrated that the applicant's capacity to respond appropriately to his caring responsibilities was impaired by Asperger's Syndrome and other psychological difficulties. The Court treated this as warranting its own fresh assessment of the sentencing materials, consistent with the principles in Regina v Israil and Regina v Henry, which recognise that mental disorder or abnormality is relevant both to assessing objective criminality and to the weight given to personal and general deterrence.

On the question of manifest excess, the Court declined to engage in comparative analysis with other manslaughter sentences, restating that such comparisons are neither helpful nor justified by authority. Referring to Regina v Morgan, Regina v Salameh, and Regina v Trevenna, the Court emphasised that differences in objective and subjective culpability between cases are so significant that correlation exercises undermine the individual discretion required in sentencing. The Court noted that even where culpability in two cases appears similar, a difference in sentences does not automatically mean one is wrong, as that assumption would require treating the other sentence as correct.

The Court found the personal circumstances of the applicant to be wholly exceptional and, on the particular facts, concluded that the original sentence was manifestly excessive. The non-parole period set by the sentencing judge was not disturbed in terms of the special circumstances finding, but the overall sentence was substantially reduced.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; sentence below quashed
  • In lieu of the original sentence, the applicant was sentenced to imprisonment for 3 years and 6 months, dating from 28 November 2002 and expiring 27 May 2006
  • A non-parole period of 2 years, dating from 28 November 2002 and expiring 27 November 2004

Key Takeaways

  • Evidence of Asperger's Syndrome or related psychological dysfunction, even where it falls short of a severe psychiatric disorder, is relevant to the sentencing exercise: it bears on the assessment of an offender's objective criminality and on the weight to be given to personal and general deterrence.
  • The Court of Criminal Appeal confirmed that comparative case analysis in manslaughter sentence appeals has limited utility. Manslaughter carries the widest sentencing range of any offence, and differences in objective and subjective culpability make meaningful comparison between cases unreliable.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal will intervene where a sentence is manifestly excessive on the particular facts, even where no specific error of principle is identified.
  • A carer's gross and wilful failure to provide proper nutrition, hydration, medication, and medical care to a dependent person can ground a conviction for manslaughter by criminal negligence, consistent with the principles in Regina v Nicholls and Regina v Stone and Dobinson.
  • Wholly exceptional personal circumstances, including a diagnosed psychological condition impairing the capacity to meet caring responsibilities, may justify a substantial downward departure from an initial sentence.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Regina v Anderson [1981] VR 155
- R v Blacklidge, NSWCCA, 12 December 1995
- R v Cameron, NSWCCA, 27 September 1994
- R v Do [2001] NSWCCA 19
- R v Do [2000] NSWCCA 459
- R v Engert (1995) 84 A Crim R 67
- Regina v Eriksson [2001] NSWSC 781
- Regina v Henry (1999) 46 NSWLR 376
- R v Hill (1981) 3 A Crim R 397
- Regina v Israil [2002] NSWCCA 255
- R v Letteri, NSWCCA, 18 March 1993
- R v Luong [2000] NSWSC 505
- R v Maguire, NSWCCA, 30 August 1995
- Regina v Morgan (1993) 70 A Crim R 368
- Regina v Nelson [2002] NSWCCA 463
- Regina v Nicholls [1874] 13 Cox CC 75
- Regina v Salameh, NSWCCA, 9 June 1994
- Regina v Scognamiglio (1991) 56 A Crim R 81
- Regina v Stone and Dobinson [1977] QB 354
- Regina v Trevenna [2004] NSWCCA 43
- R v Wilkinson [1999] NSWCCA 248
- Regina v Wilkinson, NSWSC, 9 April 1998