Citation: SAM, Thomas v R; SAM, Manju v R [2011] NSWCCA 36
Court: Court of Criminal Appeal, New South Wales
Date: 10 March 2011
Judge(s): McClellan CJ at CL (principal judgment); Hoeben J and R A Hulme J (agreeing)
Background
The two appellants were the parents of Gloria Sam, an infant born in July 2001 who died in May 2002 at nine months of age. Gloria suffered from severe atopic dermatitis (eczema) that progressively worsened over the months before her death. Both parents were trained in fields unrelated to conventional medicine, with the father holding qualifications in homeopathy and practising as a homeopath in Australia, and the mother holding qualifications in physics and computer applications.
Despite repeated warnings from nurses and medical practitioners, including a general practitioner who described Gloria's rash as one of the most serious he had ever seen and gave an urgent dermatologist referral, the parents did not pursue the recommended conventional medical treatment. The father treated Gloria primarily with homeopathic remedies. Even when the mother travelled with Gloria to India, she discontinued conventional medical follow-up after a single visit and again relied on homeopathic treatment. Gloria died in hospital, grossly unwell and suffering from the untreated condition.
Both parents were convicted by a jury of manslaughter by criminal negligence. The father was sentenced to eight years imprisonment with a six-year non-parole period; the mother to five years and four months with a four-year non-parole period. Both appealed their convictions, and both sought leave to appeal their sentences on the grounds of severity.
Legal Issues
- Whether the verdicts of manslaughter by criminal negligence were unreasonable or unsupported by the evidence, having regard to the standard of care expected of a reasonable parent and, additionally for the father, the standard of care expected of a reasonable homeopath.
- Whether the evidence of multiple medical appointments demonstrated insufficient "callous disregard" or "uncaring negligence" to sustain the convictions.
- Whether delay in bringing the matter to trial, the subsequent birth of a second child, alleged extra-curial punishment suffered by the appellants, and the sentencing judge's conduct following a threat made by the father warranted appellate intervention in the sentences.
Decision
Conviction appeals
McClellan CJ at CL rejected the argument that the verdicts were unreasonable. The court found that the evidence amply supported findings of criminal negligence against both parents. Gloria's condition deteriorated dramatically over several months, multiple qualified practitioners issued urgent warnings, and each time those warnings were disregarded in favour of homeopathic treatment. The court confirmed that the standard of care in this context was that of a reasonable parent: the father's qualifications as a homeopath did not lower that standard, and arguably imposed an additional obligation to recognise when homeopathic treatment was inadequate and conventional medical intervention was necessary.
The appellants argued that their attendance at various medical appointments demonstrated that they were not indifferent or callous toward Gloria. The court rejected this reasoning. The intermittent appointments were found insufficient to refute liability, given that on each occasion the medical advice received was either ignored or overridden by the continuation of homeopathic treatment. The jury was entitled to conclude that the conduct amounted to criminal negligence.
Sentence appeals
The court granted leave to appeal the sentences but dismissed both appeals. It rejected the submission that the delay in bringing the matter to trial warranted a reduction, and found no basis to conclude that the appellants had suffered extra-curial punishment of a kind that should reduce the sentences. The court also rejected the argument that the sentencing judge should have disqualified himself following a threat made by the father during sentencing. No application to disqualify was made at the time, and the judge's response to the threat had been one of concern for the father's wellbeing rather than any improper reaction. The court found the sentences to be within the appropriate range, consistent with comparable decisions and reflective of the need for general deterrence in cases of criminal neglect of young children.
Orders Made
- Appeals against conviction dismissed.
- Leave to appeal sentences granted but appeals dismissed.
Key Takeaways
- A conviction for criminal negligence manslaughter of a child does not require proof of active cruelty or callous indifference; a sustained failure to obtain appropriate conventional medical treatment in the face of repeated urgent warnings by qualified practitioners can satisfy the standard.
- The Court of Criminal Appeal confirmed that the applicable standard of care is that of a reasonable parent, and that a parent's belief in, or qualifications in, an alternative therapeutic system does not reduce that standard.
- Evidence that parents attended some medical appointments does not, of itself, negate a finding of criminal negligence where the medical advice given at those appointments was consistently disregarded.
- In dismissing the sentence appeals, the court affirmed that general deterrence is a legitimate and significant sentencing consideration in cases of criminal neglect of young children, a category of offending that the court noted has arisen on numerous occasions.
- No error was established in the sentencing judge declining to step down following a threat made by one appellant: the absence of any formal disqualification application at the time, and the judge's measured response, meant appellate intervention was not warranted.
Legislation and Cases Referenced
Legislation
- Limitation Act 1969 (NSW)
- NSW Lotteries Corporation Act 1996 (NSW)
- Public Lotteries Act 1996 (NSW)
- State Owned Corporations Act 1989 (NSW)
Cases
- Hill v R [2003] NSWCCA 16
- Masciantonio v R (1995) 183 CLR 58
- R v Eriksson [2001] NSWSC 781
- R v HA [2008] NSWSC 1368
- R v HMF [2005] NSWSC 1214
- R v Johnston [2007] SASC 300
- R v McDonald [2001] NSWCCA 301
- R v O'Brien [2003] NSWCCA 121
- R v Taktak (1988) 14 NSWLR 226
- R v Wilkinson [1999] NSWCCA 248
- Rickard v R [2007] NSWCCA 332
- TKWJ v The Queen (2002) 212 CLR 124