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138
Court of Criminal Appeal 23 February 2011

BW v R

[2011] NSWCCA 176

Homicide
CRIMINAL LAW SEVERITY APPEAL MANSLAUGHTER BY CRIMINAL NEGLECT CRIME IN WORST CASE CATEGORY SENTENCE NOT MANIFESTLY EXCESSIVE NO ERROR IN FACTUAL FINDINGS

Citation: BW v R [2011] NSWCCA 176
Court: NSW Court of Criminal Appeal
Date: 23 February 2011
Judges: Whealy JA, RS Hulme J, Harrison J

Background

The appellant was the father of a seven-year-old girl, referred to as "Ebony," who died during the night of 2–3 November 2007. Following a trial in the Supreme Court, the appellant was convicted of manslaughter by criminal neglect, having been acquitted of murder. His wife was separately convicted of murder and sentenced to life imprisonment.

The sentencing judge, Hulme J, imposed a sentence of 16 years imprisonment with a non-parole period of 12 years, commencing 17 November 2007. The maximum penalty for manslaughter is 25 years, with no standard non-parole period.

The Crown's case on manslaughter rested on criminal negligence: the father had breached his duty of care to Ebony by failing to provide adequate nourishment and medical attention, causing her death. Expert evidence established that at death Ebony weighed just nine kilograms, less than half her weight from a hospital examination roughly 21 months earlier, and approximately one-third of the weight she would have been expected to reach. The forensic pathologist described the body as presenting "in an extreme degree of emaciation," consistent with chronic starvation over a period of months.

  • Whether the sentencing judge made errors of fact in his findings about the father's culpability and the circumstances of Ebony's death.
  • Whether the sentence of 16 years imprisonment (non-parole period 12 years) was manifestly excessive for manslaughter by criminal neglect.
  • Whether the sentencing judge correctly placed this offence in the worst-case category of manslaughter.

Decision

The Court of Criminal Appeal rejected all grounds of appeal. Whealy JA, with whom Hulme J and Harrison J agreed, found no error in the sentencing judge's factual findings. The court accepted that Ebony had been progressively deprived of food and medical care over a sustained period, kept isolated in a locked bedroom, and deliberately concealed from welfare authorities, neighbours, and medical professionals.

On the question of objective seriousness, the court upheld the sentencing judge's conclusion that this was a case in the worst category of manslaughter. The deprivation was chronic rather than acute, spanning many months. The appellant had full awareness of Ebony's deteriorating condition, given his presence in the household throughout. His breach of parental duty was profound and prolonged.

The court noted that the sentence, while heavy, fell well within the available range for the worst-case category of manslaughter. Whealy JA observed that, given the extreme degree of criminality and the limited favourable subjective circumstances, the sentence could without error have been set at a higher level. The emphasis the sentencing judge placed on general deterrence, punishment, accountability, and denunciation was appropriate, consistent with the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999.

The court also noted that prior manslaughter decisions were of limited comparative utility, given the wide variety of factual circumstances in which manslaughter can be committed. The sentence was found to be completely justified on all the matters properly taken into account.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that manslaughter by criminal neglect involving the chronic starvation of a vulnerable child can properly be assessed as falling within the worst-case category of the offence.
  • A sentence of 16 years imprisonment (non-parole period 12 years) for such an offence was held not to be manifestly excessive, and the court observed it could without error have been higher given the limited subjective considerations.
  • Where a parent has a sustained and knowing awareness of a child's deteriorating condition and takes no steps to provide nourishment or medical attention, that course of omission may support a finding of extreme criminal culpability.
  • Comparative manslaughter sentences are of limited assistance to sentencing courts, given the breadth of circumstances capable of constituting the offence. The primary guide is the nature of the conduct assessed against the statutory maximum.
  • Under s 3A of the Crimes (Sentencing Procedure) Act 1999, purposes including general deterrence, punishment, accountability, and denunciation properly carry significant weight in sentencing for offences of this character.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A

Cases
- R v BW & SW [No 3] [2009] NSWSC 1043 (the sentence under appeal)
- Taber v R; Styman v R (2007) 170 A Crim R 427
- R v Forbes (2005) 160 A Crim R 1
- R v Green [1999] NSWCCA 97
- R v Vongsouvanh [2004] NSWCCA 158
- R v Alexander (1994) 74 A Crim R 141
- R v McGuire (Unreported, NSWCCA, 30 August 1995)
- R v Troja (Unreported, NSWCCA, 16 July 1991)
- Clare v The Queen (2008) 181 A Crim R 450
- R v Guider [2002] NSWSC 756
- R v Hoerler (2004) 147 A Crim R 520
- R v Thomas Sam and Manju Sam [No 18] [2009] NSWSC 1003; 149 A Crim R 38
- Veen v The Queen [No 2] (1988) 164 CLR 465
- Veen v The Queen (1979) 143 CLR 458
- Ibbs v The Queen (1987) 163 CLR 447
- Gilson v The Queen (1991) 172 CLR 353
- Baumer v The Queen (1988) 166 CLR 51
- R v Dodd (1991) 57 A Crim R 349