R v Miller[2010] QSC 453

SUPREME COURT OF QUEENSLAND

Ann LYONS J

[1] Mrs Miller, you are to be sentenced for the unlawful killing of your mother.  Your mother, Mrs Hys, died on the 27th of May 2006.  She was 76 years of age.

[2] You have been charged with manslaughter on the basis that you failed to provide medical assistance to her.

[3] The Queensland Ambulance Service was called at 11 p.m. on 27 May 2006 when you found your mother's body.  Police also attended.  It is clear that when you checked on your mother that night you found that she was dead.

[4] All of those who attended on the evening noted the state of your home.  It was in a dreadful state.  It smelt of animal urine and rotting food.  The photos showed piles of rubbish.  It was clearly in a very bad state.

[5] The autopsy concluded that the cause of death was sepsis, due to multiple bed sores, malnutrition, dehydration, as well as her longstanding arthritis.  The time of death would appear to have been earlier than when you found her at 11 p.m.

[6] She weighed only 36 kilograms at the time of the autopsy.  That autopsy report indicates that there were a number of ulcers. In a category of one to six, with six being the most serious, Mrs Hys had six stage four, one stage three and three stage two ulcers.  There were maggots in some of those wounds.

[7] As I have indicated, Sepsis was the cause of death and it was due to those multiple bedsores.  It is clear that laceration was also caused by urinary and faecal incontinence as well as friction of clothing and bedding on the skin.

[8] Dr Glenda Powell, who conducted a full review of all the medical information, noted that the full thickness sores would have taken two to three months to develop and would have caused much pain and discomfort. 

[9] The presence of morphine, however, in the autopsy results indicated that you were giving your mother pain relief. The autopsy report also noted your attempts to treat your mother.  Honey and pads were noted to be on those wounds. 

[10] However, the autopsy report showed gauze in a wound and Dr Powell considered that this was consistent with inadequate care and poor hygiene. Dr Powell also considers that neglect was shown by the cachexia as well as dehydration and the sepsis.  There was inadequate treatment to the bedsores.  Dr Powell states that the bedsores and evidence of poor hygiene, as well as the poor nutrition, would indicate, in her view, gross neglect, as well as lack of care and would have caused great pain and suffering.

[11] The Crown have conceded that the relationship you had with your mother was a difficult relationship and that is confirmed by Dr Hess.  It would seem, also, Mrs Miller, that you have your own mental health problems.  Despite that, you obviously drove your mother around to treatments, when she was attending doctors; you provided meals and checked on her daily when she was living by herself.

[12] When she moved in with you she was, at first, mobile but her health then deteriorated.  It is clear that you would shower your mother and bring her meals and liquids. Another person who lived with you at a time has stated that Mrs Hess refused treatment in relation to the bed sores.

[13] I have no doubt that your mother was a domineering woman who could be aggressive, opinionated and impatient.  You told others about your mother's bed sores and you were advised to treat your mother and to turn her regularly.

[14] It is clear that in late 2005, early 2006 the bed sores were becoming very serious and your mother was in pain.  In early February you had a further discussion with a friend in relation to those bed sores and you were told to get assistance.  You were also told where you could get that assistance.

[15] You indicated that your mother did not want to see anyone. However, you were advised that you needed to do the right thing.  You indicated you were worried about what people would say and about the state of the house.  You were also concerned about comments about how you were caring for your mother.

[16] It is clear from conversations with your friends that you were out of your depth in caring for your mother's very high needs at this point in time.  Your mother resisted assistance and she refused care.  As I have said, you were overwhelmed by your mother's care.  She refused to shower, she would abuse you, your mother was refusing to wear clothes, she was incontinent, she would tear off the incontinence pads and smear the walls. You tried to treat your mother and you tried to treat those bed sores with medicated honey and with pads.

[17] You indicated that your mother did not wish to eat and that cachexia would seem to have developed as a result of the sepsis.  You also told police, in your full and frank interview, about the presence of maggots in those last weeks.  So, you were aware of the state of those sores.  You were also aware of the pain she was in, because you were giving her treatment by way of tablets for that pain.

[18] She did become dehydrated and malnourished.  Your mother refused care and that is a significant factor. You had been told you had to provide the care by your mother.  She insisted that you had to provide the care and there were cultural issues in your upbringing where your mother made it very obvious to you, that you were the one who was to provide this care for her.

[19] I have no doubt you have shown great remorse.  It is clear from your interview with police and your interview with the psychiatrist that you did love your mother and you had a very close relationship with her.

[20] 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.

[21] The Crown accepts that there were a number of mitigating factors.  They accept there was clear remorse and that you are living with regret which you have indicated to the Court here today.  You also indicated you tried your best.  I also accept that this is a very early plea, there has been full co-operation, full and frank admissions. 

[22] There has also been a period of some extraordinary delay. It is over four years since your mother's death and you have had to live with this for that long period of time. 

[23] The Crown also acknowledges your own serious mental health issues and that your mother was difficult and demanding.

[24] In coming to an appropriate penalty, I note you were 41 at the time these offences occurred.  You are 46 now.  You have no relevant criminal history.  The Crown submits that you must be sentenced for the consequences of your actions which was the failure to obtain medical assistance when you were advised to do so and when your mother was in clear pain.

[25] The Crown submits that the penalty is in the order of five to six years.  The Crown also accepts that there are unusual circumstances and therefore submits that the sentence should be towards the lower end, that is, five years and it should be suspended but there should be some time in actual custody.

[26] It is clear there are very unusual circumstances in this case and that has been conceded by the Crown.  The authority that the Crown relies on is the decision of R v Pesnak & Anor[1], which is a 2000 Queensland Court of Appeal decision where there was failure to seek medical attention during a self imposed fast by the deceased.  The criminal negligence there was the failure to seek medical assistance.  A sentence of four years was imposed after an appeal.  The Crown submits here that there was a longer period of deterioration as well as a longer period of pain.  In Pesnak, the deceased had participated voluntarily and in that case medical assistance was actually called but too late.

[27] The Crown has also relied on the decision of the R v Cramp.[2]  This is a decision in January 2008 by White J.  A sentence of five years was imposed with a parole recommendation after 18 months where a woman with a criminal history, due to drug addiction, was sentenced for criminal negligence.  There the deceased child was three years of age, she had slipped in the shower and became unconscious and the failure to obtain medical attention was the basis for her negligence.  She was concerned that if she sought medical attention she would lose custody and she did not get that medical assistance.

[28] The decision of R v George[3] has also been referred to which is a 2004 New South Wales Court of Appeal decision where there are remarkably similar facts.  The background is remarkably similar as were the personal circumstances to some extent of the defendant in that case. There the death was caused by pneumonia caused by poor nutrition and hydration.  The defendant had Asperger’s Syndrome.  A period of imprisonment of three and a half years was imposed but a non-parole period of some two years was required to be served, given the particular sentencing regime in New South Wales after a trial.

[29] The Crown also relies on the decision of R v Watson, ex parte Attorney-General[4] where a penalty of imprisonment of four and a half years, suspended after 18 months, was imposed by the Court of Appeal.

[30] The Crown, therefore, submits that, essentially, five years with a suspension after some 18 months in custody should be imposed.

[31] In coming to an appropriate decision, Mrs Miller, I have taken into account, in particular, the psychiatrist’s report of Dr Quadrio.  Dr Quadrio reports that you have a chronic depressive disorder which became apparent around 10 years ago.

[32] The background to that depressive disorder, Dr Quadrio states, 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.

[33] It is clear you lived a very isolated life as a child on a remote and, clearly, very poor farm that was removed from society.  Your mother was your only contact.   According to Dr Quadrio, your mother also had psychological difficulties throughout her life and she considers she may have had a paranoid disturbance given her isolation, her aggressiveness, her foraging in bins and her hoarding.  Dr Quadrio considers that your mother's complex behaviours constituted a clinical disturbance that was termed, "social breakdown."  She also considered that your mother had “senile breakdown” or “senile squalor syndrome” or what is often referred to as “Diogenes Syndrome” where there is extreme self neglect, living in domestic squalor and also a lack of concern about living conditions. 

[34] In particular, Dr Quadrio goes into the background of this condition and says that there is a refusal of external help and living on the edge of society.  They are usually then discovered by chance because of illness. She talked about the active type, where rubbish is collected from the outside to clutter inside and a passive type, where people are invaded by their rubbish.

[35] Dr Quadrio states that, in the context of your poverty, post-war hardship and social isolation, this was how you developed. She says that against that background you then struggled to provide emotionally for your own children and over their developmental years you became increasingly depressed.  Your failure to care for your mother, Dr Quadrio considers, 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. Dr Quadrio then goes on to comment in further detail on the Diogenes Syndrome. I have taken into account, in particular, Dr Quadrio's report which gives a context to this case. 

[36] Your counsel, Ms Cuthbert, has relied on a number of decisions, in particular, the decision of the R v Hall,[5] which is a 1999 New South Wales decision. The decision of R v Stone; R v Dobinson,[6] which involved a reckless omission to assume duty of care, as well as the decision of the R v Clissett,[7] a criminal negligence case involving the accidental scalding of a child and a failure to obtain medical assistance, where the defendant was worried that if he presented the child to authorities the child would be taken away.  Whilst he did stop the infections to the burns, the child became dehydrated because the child needed intravenous hydration.  In that case, care was given but was inadequate. 

[37] In particular, in coming to an appropriate decision in this case I have taken into account the principles set out in the decision of R v Streatfield,[8] where it was indicated that:

“in passing a sentence for the crime of manslaughter the Court is vitally concerned with the mind and culpability of the offender.

The absence of intention to harm must be a very significant factor and is probably the primary factor in assessing the quality of the offender's act that amounts to manslaughter. In the present case stupidity is revealed rather than wickedness.  Malice is nowhere to be found.  In this respect the case must be less seriously regarded than ordinary domestic killings where there is a distinct intention to harm, albeit it a fleeting one, which may have been provoked by the injured party.”

[38] 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.

[39] 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. 

[40] 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.

[41] That action is deserving of punishment.  An actual period of imprisonment should be served, particularly given that failure was for a period of time. Having considered the authorities, I consider a period of imprisonment of five years is the appropriate head sentence. However, given the particular factors in your case, I consider that a period of imprisonment of 12 months should be served.  I will suspend the period of imprisonment after a period of one year.

[42] I have taken into account the decision of R v George which indicates that I am required to take into account your particular factors and, in particular, your mental health issues.  Therefore, there is a period of imprisonment of five years imposed to denounce your conduct when you should have obtained the assistance, but a period of 12 months is required to be served given your personal circumstances with an operational period of five years.