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Supreme Court 9 June 2015

R v A (No 5)

[2015] NSWSC 670

Homicide

Citation: R v A (No 5) [2015] NSWSC 670
Court: Supreme Court of New South Wales
Date: 9 June 2015
Judge(s): Bellew J

Background

The offender, an Indigenous woman aged 34, was convicted by jury of the manslaughter of her son Z, aged 2 years and 7 months, between 30 July 2012 and 3 August 2012 at Berkeley, NSW. The Crown's case was not that the offender caused Z's injuries, nor that she was present when they were inflicted. Rather, the Crown alleged that Z was obviously gravely ill in the days before his death and that the offender failed to obtain medical treatment for him in circumstances amounting to criminal negligence.

Z died on 3 August 2012 from head injuries and peritonitis. Post-mortem examination revealed multiple fractures and internal injuries. In the days leading up to his death, Z was vomiting, lethargic, and had not eaten for several days. The offender had visited her own GP on 2 August 2012 and made a follow-up appointment for Z to be seen four days later, on 6 August, by which time Z had died.

The offender had a history of severe childhood sexual abuse by her stepfather, which had contributed to significant mental health conditions including depression, anxiety, and post-traumatic stress disorder. She had been hospitalised for self-harm only days before the offending period began. She had no prior criminal history.

Legal Issues

  • What are the appropriate factual findings for sentencing, consistent with the jury's verdict of manslaughter by gross negligence?
  • Where does this offending fall on the range of objective seriousness for manslaughter?
  • What weight should be given to the offender's mental illness, including its effect on general and personal deterrence?
  • Whether the offender demonstrated genuine remorse within the meaning of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999?
  • Whether special circumstances existed justifying an extension of the non-parole period ratio?
  • What is the appropriate sentence, having regard to the offender's Indigenous background, mental illness, prospects of rehabilitation, and the principles in Fernando and Bugmy?

Decision

Objective seriousness

The court found that Z was clearly unwell between 30 July 2012 and 3 August 2012, displaying vomiting, lethargy, and having not eaten for several days, and that it must have been apparent to the offender that he required medical attention (at [29]-[30], [42]). Medical treatment could have been obtained without real difficulty (at [42]). The court rejected the Crown's submission that the offending fell at about the mid-range of objective seriousness. The court was satisfied that, taken overall, the offending fell substantially below the mid-range, having regard to the short duration of the omission, the absence of any deliberate decision to withhold care, the fact that the offender had generally been appropriately attentive to Z's needs, and the offender's own serious mental health state at the time (at [45]-[47]).

The court also declined to treat Z's vulnerability as a statutory aggravating factor under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999, on the basis that the duty owed by a parent to a defenceless child was already encompassed within the general assessment of objective seriousness (at [43]).

Mental illness and deterrence

The offender's mental illness (depression, anxiety and PTSD) was uncontested and serious. Although the expert evidence confirmed it did not causally contribute to the offending by impairing her cognitive or decision-making capacity, the court applied the principles from R v Engert and DPP (Cth) v De La Rosa and held that mental illness remains relevant to sentence even absent a causal connection (at [81]-[83]). The court found that the offender's mental illness rendered her an inappropriate vehicle for general deterrence, and that personal deterrence was of little or no significance given her illness and lack of criminal history (at [83]).

Remorse

The court was not satisfied that the offender demonstrated genuine remorse within s 21A(3)(i). While she was upset about Z's death and expressed regret, her statements to the forensic psychiatrist, in particular her description of the verdict as not representing justice for her son, demonstrated a failure to accept responsibility for her actions (at [88]-[89]). The court distinguished being upset and expressing regret from the acceptance of responsibility the provision requires (at [89]).

Mitigating factors and special circumstances

The court found the following mitigating factors: absence of criminal history (s 21A(3)(e)); low likelihood of reoffending (s 21A(3)(g)); and the principles in Fernando and Bugmy, applied to the offender's history of childhood sexual abuse and consequent mental illness (at [84]-[87]). The court also found special circumstances existed, based on the offender's mental illness, lack of criminal history, first period of custody, and the expert opinion that rehabilitation was likely to be successful with appropriate support, thereby justifying an equal non-parole and additional term (at [93]-[94]).

Orders Made

  • The offender is convicted of manslaughter.
  • Sentenced to a non-parole period of 2 years and 3 months imprisonment, commencing 26 June 2013 and ending 25 September 2015.
  • Additional term of 2 years and 3 months imprisonment, commencing 26 September 2015 and ending 25 December 2017.
  • Total sentence: 4 years and 6 months imprisonment.
  • Eligible for parole on 26 September 2015; sentence expires 25 December 2017.

Key Takeaways

  • A convicted offender's mental illness, even where it did not causally contribute to the offending, may reduce the weight given to general and personal deterrence in sentencing. Where the illness is serious and uncontested, the court may find the offender an inappropriate vehicle for general deterrence (at [81]-[83]).

  • Objective seriousness for manslaughter by gross criminal negligence depends heavily on the specific circumstances of the omission: the duration, the degree of departure from the standard of care, and the offender's personal circumstances at the time of the offending are all relevant considerations (at [42]-[47]).

  • Under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999, remorse requires genuine acceptance of responsibility, not merely distress or regret. Statements that implicitly deny culpability are inconsistent with a finding of remorse (at [88]-[89]).

  • The principles in R v Fernando and Bugmy v R apply where an Indigenous offender's history of disadvantage, including childhood sexual abuse and consequent mental illness, provides context for the offending, even where the disadvantage does not directly cause the offence (at [86]-[87]).

  • Comparative sentence exercises in manslaughter cases must be approached with particular caution given the wide range of culpability within that offence. Decided cases do not establish a fixed range within which a sentence must fall (at [96], [99]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- Briouzguine v R [2014] NSWCCA 264
- Bugmy v R [2013] HCA 37; (2013) 249 CLR 571
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483
- Iskandar v R [2013] NSWCCA 235
- R v A (No. 2) [2015] NSWSC 76
- R v Christoff [2003] NSWCCA 52; (2003) 38 MVR 218; (2003) 140 A Crim R 45
- R v Engert (1995) 84 A Crim R 67
- R v Fernando (1992) 76 A Crim R 58
- R v Fidow [2004] NSWCCA 172
- R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
- R v Foster (No 2) [2001] SASC 154
- R v Isaacs (1997) 41 NSWLR 374
- R v Kama (2000) 110 A Crim R 47; [2000] NSWCCA 23
- R v Sam; R v Sam [2011] NSWCCA 36
- R v Tuuta [2014] NSWCCA 40
- R v Wilkinson [1999] NSWCCA 248