SUPREME COURT OF QUEENSLAND

[1]  CHIEF JUSTICE:  I have had the advantage of reading the reasons for judgment of Margaret Wilson AJA, and I am indebted to Her Honour for her comprehensive recitation of the relevant facts and circumstances.

[2] I remain of the view which I held during the hearing of the application, that especially because none of the past decisions to which we were referred provides any reasonable basis for comparison with the present case, determining the sentence to be imposed was a particularly difficult instance of evaluative judicial decision-making.  In the absence of any demonstrated error, and there is none here, this court should be especially circumspect in pursuing any inclination to adjust the sentence which was imposed.

[3] It is important to recognize that the primary Judge acknowledged the difficulty in the relationship between the applicant and the deceased, and the applicant’s own depressed state.  I am not persuaded that by imposing a sentence of five years imprisonment suspended after 12 months, the learned Judge failed, in a way which would warrant appellate intervention, to give due weight to those features.

[4] Because of the particularly evaluative assessment required of the sentencing Judge in this case, I hesitate to conclude that the sentence imposed, five years imprisonment suspended after 12 months, was manifestly excessive or excessive at all, or that a term of three and a half years imprisonment suspended after 10 months would be appropriate for substitution on appeal.  Also, the Judge’s conclusion that the applicant is unlikely to re-offend throws into relief the question whether it would be appropriate on appeal to reduce the term actually to be served from 12 months to 10 months.

[5] In the end, allowing as well for the not infrequent judicial statements about the breadth of the sentencing discretion for the crime of manslaughter in particular, I am not satisfied that the sentence imposed was manifestly excessive.  I consider the imposition of a head term of five years was open to the Judge, where the applicant’s protracted neglect led to the loss of human life, and that suspension after 12 months appropriately reflected the circumstances of mitigation including the nature of the relationship between mother and daughter and the daughter’s own incapacities. 

[6] I would refuse the application.

[7]  CHESTERMAN JA:  The facts relevant to this application for leave to appeal against sentence are fully set out in the reasons for judgment of Margaret Wilson AJA.  I gratefully adopt her Honour’s rehearsal which it is unnecessary to repeat. 

[8] The categorisation of the circumstances giving rise to the application as “exceptional” or “unique” make the applicant’s task of demonstrating that the sentence is manifestly excessive and/or that insufficient weight was given to the applicant’s personal circumstances, more difficult than in the ordinary case.  A case which is unusual, or exceptional, will probably provide greater scope for legitimate differences in the manner in which the sentencing discretion should be exercised.  Different minds will emphasise one aspect rather than another to produce a sentence of greater or lesser severity.  Where there are no comparable cases to guide the discretion, and there are facts which operate in favour of leniency and in favour of severity, the task of an applicant who claims that the discretion was wrongly exercised in favour of severity will be onerous.  Reasonable minds exercising the same discretion may well conclude that different results are appropriate.

[9] The applicant here must persuade the court that the sentence imposed, one of five years’ imprisonment suspended after 12 months, is disproportionate to the circumstances of the offence and of the offender.  In my opinion the applicant has failed to discharge that onus. 

[10]  The sentencing judge gave anxious consideration to the facts of the case and to what was urged by way of mitigation.  Her Honour’s remarks were detailed and comprehensive.  They do not, to my mind, indicate any failure to appreciate the applicant’s psychology which, the applicant urged, ameliorated her offending and reduced her moral blameworthiness.

[11]  The matter was referred to specifically by the sentencing judge who said:

“… I have taken into account … the psychiatrist report of Dr Quadrio … (who) reports that you have a chronic depressive disorder … .  The background to that depressive disorder … were the circumstances of your extremely deprived childhood in Poland.  There was great material privation and great emotional privation.  Dr Quadrio states that children raised in such conditions of neglect are highly predisposed to a chronic depressive adjustment in adult life.

It is clear you lived a very isolated life as a child on a remote and … very poor farm … removed from society.  Your mother was your only contact.  According to Dr Quadrio, your mother also had psychological difficulties throughout her life … .  … Dr Quadrio states that, in the context of your poverty, post-war hardship and social isolation, this was how you developed.  … against that background you … struggled to provide emotionally for your own children and over their developmental years you became increasingly depressed.  Your failure to care for your mother … was a repetition of the lack of care that you had experienced yourself.  She says that the repetition of behaviour is an example of the neglect and chaos that you grew up in and which you had been shown in your mother’s house.  You had been shown a dismal level of care, yourself, that was all you had known.”

[12]  This accurately summarised the personal and psychological reasons which lay behind the applicant’s failure to summon help for her dying mother.  The sentencing judge had earlier remarked upon the deceased’s domineering and dominating personality and her aggressiveness towards the applicant.

[13]  One may venture to think that in every case of neglect by a child of a parent, or of an elderly parent by a child, some psychological maladjustment will be present.  Well adjusted, psychologically normal adults are unlikely to watch their children or their parents wither to the point of death.  Such cases as there are show that ignorance and good intentions which might accompany psychological maladjustments, do not outweigh the need for general deterrence and denunciation. 

[14]  It is these aspects of criminal punishment which are of particular importance in this and similar cases.  Society must show its deprecation of those in responsible positions who neglect children or the elderly in their care to the point of death or serious illness.  General deterrence is important because the cases reported here and elsewhere show that such cases of neglect are far from unheard of.

[15]  The sentencing judge properly remarked upon the need for deterrence and correctly identified the applicant’s conduct which called for punishment.  Her Honour said:

“As I have indicated, I consider that there are unique circumstances in this case.  In particular, I accept that there was no intention to harm.  However, in coming to an appropriate penalty … you were responsible for your mother’s care.  It is clear your mother refused care when she had the capacity to make that decision but when she lacked the capacity to make those decisions you were required to make those decisions for her.

You were obliged to ensure that she received the necessities of life.  … I have no doubt you tried your best, but when that task became too great you were obliged by law to obtain assistance.

You were given that advice and despite your mother’s ongoing pain … for a number of months … you did not obtain … assistance.

That action is deserving of punishment.  An actual period of imprisonment should be served, particularly given that failure was for a period of time … .”

[16]  It is possible to make too much of the applicant’s psychological incapacity.  Although depressed she had no history of hospitalisation for psychiatric treatment.  She remained in employment and raised children though her relationship with them was, at least at times, unsatisfactory.  She was able to form and sustain relationships of her own but none were long lasting.  She was able to consult a friend about the level of care her mother needed but ignored the friend’s advice that medical assistance should be obtained.  Her only reason for refusing to summon it was a selfish concern for her own reputation as a housekeeper.

[17]  The deceased woman suffered terribly before she died.  The period of suffering was protracted.  It appears the authorities were not summoned until some hours after death.  The details of the suffering appear in Margaret Wilson AJA’s reasons.

[18]  There was, as Mr Martin SC who appeared for the respondent submitted, a great disparity between the observed and observable signs of distress, pain, malnutrition and debility in the applicant’s mother, and the applicant’s response to them.  As little as a telephone call could have rescued the mother from her plight.  It was not made.  The applicant’s depression and dysfunctional relationship with her mother did not render her incapable of making the call.

[19]  The sentencing judge did not overlook any relevant matter.  Her Honour identified the factors calling for denunciation and deterrence and sought to balance them against the available factors of mitigation.  There is, in my opinion, no discernable error in the balance struck by her Honour.

[20]  The application for leave to appeal against sentence should be refused.

[21]  MARGARET WILSON AJA:   The applicant was charged with manslaughter of her elderly mother in failing to provide her with necessary medical attention.  She pleaded guilty and was sentenced to five years imprisonment suspended after 12 months with an operational period of five years.

[22]  She seeks leave to appeal against the sentence on the ground it was manifestly excessive.  Her counsel submitted that she ought to have been sentenced to three years imprisonment suspended after nine months.

[23]  The sentencing remarks of the primary judge reveal careful and thorough attention to the evidence and submissions put before her.  It was not suggested that her Honour made any error of principle or that she mistook the facts in any way.  The complaint is that she gave insufficient weight to the applicant’s mitigating circumstances, and too much weight to other sentences for manslaughter which were not comparable and could not be reliably used as a guide.  To succeed on an appeal against the sentence the applicant would have to persuade this Court that in doing so her Honour imposed a sentence which was beyond the applicable range and thus manifestly excessive.

Immediate circumstances

[24]  The facts were exceptional.

[25]  The applicant’s mother, Kazimiera Hys, was aged 76 when she died.  Because of her deteriorating health and increasing inability to care for herself, she moved into the applicant’s house in 2005.  When she moved there she was still mobile and able to feed herself.  However, her condition gradually deteriorated and the applicant became her primary care giver in the months leading to her death on 27 May 2006.

[26]  Police and paramedics attended the applicant’s house on the night Mrs Hys died.  The living conditions were squalid: filth, faecal smearing on the walls, an overwhelming smell of animal urine and rotting food, and gross clutter and rubbish piled up to the point where moving around the house was difficult.

[27]  An autopsy was conducted on 31 May 2006.  Mrs Hys was 154 centimetres in height.  At autopsy she weighed 36 kilograms.  The pathologist considered that the cause of her death was sepsis as a consequence of multiple decubitus ulcers (commonly known as bed sores), and also noted malnutrition, dehydration, arthritis, hypertension, and coronary atherosclerosis.  Toxicology tests revealed the presence of painkilling, anti-depressant and other drugs.

[28]  Bed sores develop in four stages.  Stages 1 and 2 are reversible with good nursing care but stages 3 and 4 may be life threatening from infections and are usually malodorous.  Mrs Hys had six stage 4 bed sores, one stage 3 and three stage 2 bed sores.  The lesions would have developed over two or three months and would have caused much pain and discomfort.  Many of them appeared infected.  Some showed necrotic tissue, and there were maggots within these.  There was evidence of an attempt to treat the lesions with honey and pads, but the presence of gauze within one of them was consistent with poor care, infrequent dressing changes and inadequate hygiene.

An early plea despite delay

[29]  It was not until almost three years later that police conducted a recorded interview with the applicant.  She gave a full and frank account of her relationship with her mother and the circumstances leading up to her death.  She was charged with manslaughter.  The matter proceeded by way of a full hand up committal and was listed for sentence upon presentation of the indictment.  The applicant’s plea of guilty was properly treated as an early one.  By the time she was sentenced almost four and a half years had passed since her mother’s death.

The applicant’s personal circumstances at sentence

[30]  The applicant was aged 41 at the time of offending and 46 at sentence, with no relevant criminal history.  She was deeply remorseful.

[31]  The applicant was a divorcee with three adult children, one of whom had a drug problem and lived with her.  For many years after having children she was not in paid employment.  In 2005 she sought Centrelink’s help in finding a job, and obtained a part time position in retailing with Target, which she still held.  Shortly before the sentence hearing, she negotiated 12 months leave of absence from that position.

Background

[32]  Mrs Hys was born in Poland in 1929.  She lived a very isolated life in a semi‑rural setting.  Her family was very poor, and during World War II life was especially difficult for them.  After the War, she cared for her parents until they died.

[33]  Mrs Hys entered a relationship with the applicant’s father.  After she became pregnant they married, and the applicant was born in Poland in 1964.  The marriage was marked by poverty and domestic violence and soon disintegrated.  Until she was 11 the applicant was raised by her mother as a sole parent in the same isolated environment in which she had herself been reared. 

[34]  In 1975 Mrs Hys and the applicant came to Australia where one of Mrs Hys’ sisters was living.  Mrs Hys was then aged about 46 and the applicant 11. 

[35]  Mrs Hys worked as a cleaner.  She lived a socially isolated existence, never being able to communicate much in English.  She and her sister did not get on.  Mrs Hys was a domineering woman who could be aggressive, opinionated and impatient.  As I shall explain below, her relationship with the applicant was a complex one, to some degree dysfunctional.  For many years after the applicant left home, Mrs Hys lived alone at Mt Gravatt.  She would break into bins and then hoard what she had scavenged.  Her living conditions were not dissimilar to those in the applicant’s house when she died.  She retired in 1988, when she was aged about 60.  She was then very overweight (about 105 kgs), badly affected by arthritis, and with deteriorating eyesight.

[36]  Mrs Hys had no real contact with the Australian medical system until about 1980 when the applicant, who was then about 16, was involved in an accident.  Medical records between about 1995 and 2003 showed a progressive decline in Mrs Hys’ cognition, mental status and self-care. 

[37]  Dr Hess saw Mrs Hys from the early 1990s.  In September 2004 he diagnosed mild dementia and contacted Ozpol, an association for Polish people in the Australian community, with a view to having her assessed by an aged care assessment team.  However, she refused to participate in the assessment. 

[38]  Dr Farag saw Mrs Hys in May 2005 (a year before she died).  At that time the lesions apparent at her death were not present.  The applicant took her mother to see Dr Farag again in December 2005.  However, she refused to get out of the car and he was unable to fully examine her.  He gave her repeat prescriptions for medication for blood pressure, depression, heart problems and osteoarthritis. Those prescriptions were apparently the source of the drugs which the applicant administered up until Mrs Hys died.

[39]  In the years leading up to Mrs Hys going to live with the applicant, the applicant provided her with meals and checked on her several times a week to ensure she was eating and looking after herself, as well as driving her to wherever she needed to go.  In the time shortly before taking her into her own home, the applicant checked on her mother daily.

The applicant’s failure to provide necessary medical attention

[40]  The applicant estimated that her mother weighed 70 or 80 kgs when she went to live with her.  But thereafter her condition gradually deteriorated to the point where she was incapable of making decisions about her own care.  Her loss of weight must have been apparent.  She was unable to get out of bed, and the applicant took her to the shower and brought her meals and drinks.  At times she refused to shower and she abused the applicant.  At times she refused to wear clothes.  She was incontinent and would tear off her incontinent pads and smear the walls with faeces.  She refused to accept care by outsiders, insisting that the applicant look after her.

[41]  The applicant was aware of her mother’s bed sores and attempted to treat them.  She was aware that her mother was in pain, and administered painkilling medication.

[42]  She discussed the bed sores with Michael Luck, who was living in the house as a boarder.  He spoke to Mrs Hys and suggested she see a doctor about them, but she refused saying it was for her daughter to look after her.

[43]  The applicant discussed the bed sores with a friend Coral Davidson on more than one occasion.  In February 2006 Ms Davidson advised her to get assistance, nominating two nursing services, Blue Care and Spiritus.  When the applicant said that her mother did not want to see or talk with anyone, Ms Davidson said words to the effect, “Sometimes you have to bite the bullet.  You need to be considerate of her wishes, but also do the right thing by her, and do as much as you can.” However, the applicant ignored the advice, and when some time later Ms Davidson asked her about contacting doctors or services, she said she was worried about what people would say when they saw the condition of the house and how she was living and caring for her mother.  The applicant told Ms Davidson that she knew she was out of her depth.

[44]  In the last couple of weeks before her death, Mrs Hys refused to eat, and she became dehydrated.  About that time the applicant noticed maggots in a bed sore.

[45]  During this time the applicant was working part-time as a retail assistant.  She was out of her depth in caring for her mother and overwhelmed by the magnitude and complexity of the task.  She was suffering from a chronic and long-standing depressive disorder, although not to the point of lack of control of her cognitive faculties.  The sentencing judge said –

“I consider that you tried to do your best, however, the basis of the charge is clear which is that you caused her death by neglecting to provide the basic necessities of life. The omission to provide her with medical care persisted for some time, during which time she developed bed sores which caused her death.”

“As I have indicated, I consider that there are unique circumstances in this case. In particular, I accept that there was no intention to harm. However, in coming to an appropriate penalty, Mrs Miller, you were responsible for your mother's care. It is clear your mother refused care when she had the capacity to make that decision but when she lacked the capacity to make those decisions you were required to make those decisions for her.

You were obliged to ensure that she received the necessities of life. She was entitled to good medical care, to nutrition and comfort, to pain relief, to be kept clean and dry. I accept that your mother's demands for care were very great on you. I have no doubt you tried your best, but when that task became too great you were obliged by law to obtain assistance.

You were given that advice and despite your mother's ongoing pain for some time for a number of months and when those bed sores were clearly quite severe you did not obtain that assistance.”

The applicant’s relationship with her mother and her own mental state

[46]  A report by a consultant psychiatrist, Associate Professor Carolyn Quadrio, was tendered before the sentencing judge.  Dr Quadrio considered that the applicant had a chronic depressive disorder which had become apparent in about 2000.  She said –

“The background to this depressive disorder is apparent: the circumstances of [the applicant’s] childhood in Poland were extremely bleak, with material privation and emotional deprivation; children raised in such conditions of neglect are highly predisposed to a chronic depressive adjustment in adult life (Chapman et at, 2004; Putnam, 2003; Widon et al, 2007).

It is apparent that as a child [the applicant] lived an isolated life and that she feared the loss of her mother – her only relationships [sic] – and she suffered separation anxiety.  They were doubly isolated, not only by virtue of their circumstances but also it appears that the mother had psychological disturbances that caused further isolation.

Subsequent adjustment

Over her adult life, [the applicant] continued in an intense and highly ambivalent relationship with her mother.  She made some efforts to separate but soon returned.  This kind of ambivalent attachment is quite typical of the relationship with a parent who has not provided adequate care.

Circumstances of mother’s death

Ultimately [the applicant] failed to provide adequate care for her mother, thus contributing to her death.  In my view this failure of care was highly over determined by a combination of: her chronically depressed state of mind, fundamental deficits in her capacity to nurture others because of the failure of nurturing in her own life; and her own decline into a state of ‘social breakdown’, very similar to that of her mother.”

[47]  Based on the applicant’s account of her early years, Dr Quadrio considered that Mrs Hys had marked psychological difficulties throughout her life with obsessive preoccupations that may have constituted a paranoid disturbance.  The mother exhibited a complex of behaviours constituting a clinical disturbance variously termed “social breakdown”, “senile breakdown, senile squalor syndrome” or “Diogenes Syndrome”.  Persons so affected manifest extreme self-neglect and live in domestic squalor but show a lack of concern about their living conditions; they are often elderly: “the independent and domineering type, living alone, with poor or non-existent social links with their local community”.

[48]  Dr Quadrio considered that Mrs Hys was at least obsessional but more likely paranoid, and was apparently “active” in accumulating rubbish.  Her condition was complicated by some dementia.

[49]  The applicant, on the other hand, fitted the category of mood disorders and was more “passive” in being increasingly invaded by rubbish as she became more depressed and more overwhelmed.

[50] Dr Quadrio considered that in the context of poverty, post-war hardship and social isolation the applicant’s childhood was affected by the added difficulties of having a single mother with possibly major psychological disturbance.  Against that background the applicant struggled to provide emotionally for her own three children and over their developmental years became increasingly depressed.  According to Dr Quadrio the applicant’s failure to care for her mother was a repetition of the lack of care she had herself experienced:

“Once her own coping mechanisms failed, [the applicant] deteriorated to the same kind of neglect and chaos in her household as had obtained in her mother’s...

In psychodynamic terms, [the applicant’s] internal world, the mental representations of the neglect and deprivation of her childhood, came to be replicated in her external world and she provided for her mother the same dismal level of care that she had known herself. While this can be said to constitute elder abuse, when it occurs in such a context it is not wilful neglect; this has been commented on by other experts, who note ‘a similarity with folie a deux’ and have termed this ‘Diogenes syndrome by proxy’ (Cooney et al, 1965; O'Mahony et al, 1994). Similarly, it has been said that ‘this behaviour does not reflect free will” (Hanon et al, 2004).

[51]  Dr Quadrio considered that the applicant had an intensely ambivalent relationship with her mother, which helped explain her tendency to capitulate and to accept her mother’s directions that she did not want to go to hospital or to see a doctor.  It was a form of traumatic attachment found in children not properly nurtured: while the applicant sometimes welcomed distance from her mother, she remained strongly attached and even emotionally dependent upon and dominated by her mother.

[52]  There were also cultural factors: the mother had been raised in a culture where the elderly were cared for at home and there were strong ties between the generations.  She expected the applicant to have the same values.

The respondent’s submissions

[53]  Senior counsel for the respondent submitted that the measure of the applicant’s criminality was the degree of mismatch between the stimulus calling for action and her response, which was negligible.  He submitted that it would be wrong to reason that the gap between the stimulus and the response was just a measure of the applicant’s dysfunctionality, as though the more obvious her obligation to cope, the more it proved how sympathetically she should be treated.

[54]  He submitted that the attention she gave her mother, such as it was, was insufficient when the deterioration in her mother’s condition was clear.  The presence of the maggots and the faecal smearing on the walls (which was not the product of a one-off episode immediately at the time of death) were measures of the squalor in which they lived and the poverty of care being afforded Mrs Hys.  He emphasised the protracted nature of the neglect, and the applicant’s awareness of it: she knew about her mother’s weight loss and that she was not eating in the last couple of weeks; she knew that her mother was in pain and tried to alleviate it with medication, albeit inadequately; she knew about the presence of the maggots, the faecal smearing and compulsive nudity.  She ignored her friend’s advice to obtain outside assistance, perhaps from Spiritus or Blue Care.  He concluded –

“Against that background it’s difficult to say that her Honour erred in this complex and difficult case.”

[55]  He submitted that the tragic aspects of the applicant’s life highlighted in the psychiatric report could be measured against her actual functionality.  She had no history of hospitalisation for psychiatric care.  She sustained relationships, although admittedly not of long duration, and raised children.  She held a job.  And having been in Australia since the age of 11, the cultural gap for her may not have been as marked as for her mother.  In my view that submission downplayed the unstable and short-lived nature of the relationships the applicant had formed, and overlooked her having asked her former husband to take responsibility for two of the children because of her own inability to cope with their upbringing.  It is correct that the applicant maintained part-time employment while caring for her mother and since, but that was apparently the only job she had had since her early twenties, and was obtained through Centrelink.

Discussion

[56]  The applicant’s conduct was deserving of substantial punishment.  The protracted nature of the neglect and failure to obtain medical assistance were particularly serious aspects of it.  The sentencing judge found that she was overwhelmed by her mother’s care and out of her depth.  Her Honour made no finding as to the extent, if any, to which she had any real insight into her own shortcomings.  That she told Ms Davidson she was out of her depth was indicative of some insight.  Her Honour seemed to accept that she had more than one reason for ignoring her friend’s advice to seek outside help – a misguided concern to fulfil her mother’s wish that she look after her, her mother’s not wanting to see anyone, and concern at what people might say about the state of the house and how she was caring for her mother.

[57]  The sentencing judge fairly summarised the relevant aspects of Dr Quadrio’s report and said that she took it into account as giving a context to the case.

[58]  In R v Goodger[1] this Court referred with approval to decisions of the Victorian Court of Appeal explaining the relevance of psychiatric abnormality falling short of insanity upon the sentencing of an offender – R v Tsiaras[2] and R v Verdins[3] In Tsiaras it was said:[4]

“First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.”

[59]  In Verdins the Court reviewed decisions since Tsiaras and said:[5]

“The sentencing considerations identified in R v Tsiaras are not – and were not intended to be – applicable only to cases of 'serious psychiatric illness.' One or more of those considerations may be applicable in any case where the offender is shown to have been suffering at the time of the offence (and/or to be suffering at the time of sentencing) from a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness.”

“Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:

1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.”

[60]  On the other hand, mental abnormality may be an aggravating factor.  In Channon v R[6] Brennan J said:

“Psychiatric abnormality falling short of insanity is frequently found to be a cause of, or a factor contributing to, criminal conduct. The sentencing of an offender in cases of that kind is inevitably difficult. The difficulty arises in part because the factors which affect the sentence give differing significance to an offender's psychiatric abnormality. An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period. The abnormality may seem on one view to lead towards a lenient sentence, and on another to a sentence which is severe. That is not an unusual phenomenon in sentencing, where the court must fashion a sentence which either reconciles or balances the various objectives of sentencing, sometimes giving emphasis to one of the objectives of sentencing, sometimes giving emphasis to another.”

[61]  In the present case the sentencing judge astutely observed during the course of the submissions that it was unlikely the applicant would offend again.  There was no real issue about there being a need personal deterrence.  However, general deterrence was a matter of concern.[7]

[62]  However, in my respectful opinion her Honour erred in not giving sufficient attention to the effect of the complex and somewhat dysfunctional relationship between the applicant and her mother and the applicant’s own chronic and long-standing depression in reducing her moral culpability, as distinct from legal responsibility, for her conduct.

Comparable decisions

[63]  The maximum penalty which may be imposed for manslaughter is life imprisonment.  The circumstances constituting the offence vary greatly and so do the sentences.  In R v Walker[8] Lord Lane CJ said:

“It is a truism to say that of all crimes in the calendar, the crime of manslaughter faces the sentencing judge with the greatest problem, because manslaughter ranges in its gravity from the borders of murder right down to those of accidental death.  It is never easy to strike exactly the right point at which to pitch the sentence.”

[64]  Of the cases cited before the sentencing judge and in this application R v George[9] is perhaps the closest on the facts.  It was a New South Wales decision, and given the different sentencing regime there, some caution needs to be exercised in considering the level of sentence ultimately imposed, as the sentencing judge correctly observed.

[65]  The applicant was charged with the manslaughter of his 86 year old mother.  After a trial before a judge alone he was convicted and sentenced to seven years imprisonment with a non-parole period of four years.  On appeal the sentence was reduced to three and a half years with a non-parole period of two years. 

[66]  The applicant resided with his mother and a sister who was developmentally disabled.  He was 58 at the time of his mother’s death.  For most of his life he had been unemployed.  He was assessed as perhaps having a mild variant of an autistic disorder, and had a solitary and socially dysfunctional life which he and his close family had shared.  The deceased had been a domineering person, who insisted upon having her own way, and who had not been accustomed to tolerating or receiving resistance from family members.  She had vigorously resisted all attempts to provide her with home care or to take her to hospital.  There was evidence that the garden was seriously overgrown and unkempt, and that the interior was a mess with rubbish and papers, some of which were kept in bags, piled up in many rooms.  The ambulance was called to the premises, where the elderly deceased was found covered in bed sores, wearing soiled clothing, with her bed and person covered in human vomitus, faeces, urine and body fluids, some of which were ingrained into her skin.  She was taken to hospital, severely dehydrated and undernourished, weighing 39 kilograms, with open pressure sores, one deep enough to reveal the hip and femur.  The cause of death was bronchial pneumonia, the underlying causes being malnutrition and multiple bed sores on the trunk and lower limbs and proteas bacteria.

[67] Of particular relevance to this case is the Court of Appeal’s discussion of the applicant’s own personality disorder.  The Court said:-

“[41]While we are not persuaded the evidence would support a finding that the Applicant suffered from a serious psychiatric or personality disorder, there was sufficient, in our view, to warrant a finding that his objective criminality was reduced beyond that which a bare analysis of the neglected state of the deceased would, at first blush, suggest.

[42]In this regard it is clear that he had not lived a normal life, having been socially isolated and having been under the control of a dominant mother.  He had been left with the responsibility of her care, albeit with the assistance of a sister who had her own problems.

[43]Upon the evidence his capacity to respond to his responsibilities was clearly impaired by an unusual personality disorder arising from his history of social dysfunction, as evidenced by the utterly bizarre circumstances in which he, and the immediate family, lived.

[44]The case is a tragic and wholly exceptional one, and we are driving to the conclusion that the Applicant’s objective criminality was overstated by his Honour.  As Dr Nielssen explained, Asperger’s Syndrome is not normally associated with criminal offending and the risk of the Applicant re‑offending, or of being placed in a similar situation, is minimal. Personal deterrence is, accordingly, of little relevance.”

[68] In R v Pesnak[10] the applicants, who were husband and wife, were charged with the manslaughter of a friend on the basis of criminal negligence in not obtaining medical assistance.  They and the victim shared beliefs in Breatharianism.  The victim came to stay in a caravan in their backyard where she voluntarily commenced a 21 day spiritual cleansing program conducted by the male applicant with the assistance of his wife, involving a fast of seven days without food or fluid followed by 14 days with some fluid.  While she was undergoing this program she suffered a stroke, acute renal failure and ischemia of the right foot which led to pneumonia from which she died.  The applicants were criminally negligent in not obtaining medical assistance for her until it was too late.  They went to trial and were convicted.  The male applicant was sentenced to six years imprisonment and the female applicant, three years.  On appeal those sentences were reduced to four years with a parole recommendation after 18 months for the male applicant and two years with a parole recommendation after nine months for the female applicant.  In R v Streatfield[11] Thomas J had observed that on the facts of that case the absence of intention to harm was probably the primary factor in assessing the quality of the offender’s act that amounted to manslaughter. In Pesnak the Court said:-

“[24]These comments were made by his Honour in the context of reviewing sentences imposed in cases of domestic killing.  Whilst intention is relevant to sentence, a major criminal factor in criminal negligence manslaughter cases is the extent of the departure from reasonable community standards which constitutes the criminal negligence.  The applicants did not intend to harm the deceased through their failure to obtain medical assistance for her; they believed her serious symptoms were caused by a spiritual struggle. Nevertheless their failure to respond to her obvious and increasingly serious symptoms constituted an extremely grave departure from reasonable community standards.  It should be noted that by the time of the most alarming symptoms on the Tuesday, her death was probably inevitable.”

In the present case the sentencing judge noted the Crown’s submission that Mrs Hys’ deterioration and pain were of longer duration than in Pesnak.  Her Honour observed, too, that in Pesnak the deceased had participated in the cleansing program voluntarily and medical assistance had eventually been called, albeit it too late.

[69] In R v Cramp[12] the applicant pleaded guilty to the manslaughter of her three year old daughter.  At the time that daughter was born the applicant was addicted to heroin and the baby was placed into foster care.  About three months before the offence was committed that child and the applicant’s other three young daughters were returned to the applicant’s care after being under the protection of a child protection order.  While the three year old was in the shower by herself one evening she knocked her head sustaining a laceration and an acute left-sided sub-dural haemorrhage from which she died.  The applicant went to a neighbour and asked for advice about concussion: she said she did not want to lose her children again and so went home and watched the child but declined to call an ambulance.  When the ambulance was eventually called it was too late: the child was dead.  Cramp was sentenced to five years imprisonment with a recommendation for parole after 18 months.  White J said:–

“This is a serious case of neglect.  It would have been so easy to dial triple 0 and call an ambulance immediately.  There was no question of implicating anyone else in the injury.  It was an accident and you chose not to do so.  For that reason, I think this is quite a serious example of criminal negligence and I impose a head sentence of five years.”

[70]  Another case referred to before the sentencing judge and in submissions before this Court was R v Watson; ex parte A-G (Qld).[13]  The facts bear little resemblance to the present.  The respondent had recently married the victim.  While they were honeymooning on the Great Barrier Reef, they went on a diving expedition.  The respondent acted as his wife’s “dive buddy” and undertook to assist her in any difficulty.  When she indicated she was in difficulty, he failed to make any reasonable attempt to provide assistance and to take her to the surface.  She died from asphyxiation.  The respondent pleaded guilty to manslaughter, and was sentenced to four and a half years imprisonment suspended after one year.  On appeal the period of actual imprisonment was increased to 18 months.  Of present relevance are remarks by the Chief Justice that in sentencing for criminal negligent manslaughter Courts should not focus unduly on the offender and overlook the horrendous consequences of his actions (or inactions).  His Honour observed that, of course, a Court must in the end arrive at a sentence proportional to the crime, but that those consequences should be given due weight.

[71]  These cases illustrate some of the wide range of factual scenarios which can result in a conviction for manslaughter, and the factors considered by courts in arriving at appropriate sentences.  In my respectful opinion the sentencing judge recognised the exceptional nature of the facts in the present case and did not err in giving too much weight to decisions that were not truly comparable.

Outcome

[72]  Sentencing the present applicant was a particularly difficult task in all the circumstances.  I have concluded that the sentencing judge erred in failing to give proper consideration to the relationship between the applicant and her mother and to the applicant’s own mood disorder.

[73]  In my view the sentence of five years imprisonment suspended after 12 months with an operational period of five years was manifestly excessive.  The applicable range was three to four years imprisonment, suspended after nine or 10 months. 

[74]  I would make the following orders:-

(1)Application for leave to appeal against sentence granted.

(2)Appeal against sentence allowed.

(3)Sentence varied by ordering a term of imprisonment of three and a half years to be suspended after 10 months with an operational period of four years.