Regina v Hall [1999] NSWSC 738

Reported Decision : 108 A Crim R 209

New South Wales Supreme Court CITATION : Regina v Hall [1999] NSWSC 738 revised - 03/09/99 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70088/97 HEARING DATE(S) : 16/7/99 JUDGMENT DATE : 23 July 1999

PARTIES : Regina v Susan Maria Hall JUDGMENT OF : Bell J at 1

COUNSEL : Crown: D Carmody Prisoner: T O'Donnell SOLICITORS : Crown: A Farage Prisoner: M Rumore CATCHWORDS : CRIMINAL LAW; manslaughter; sentencing Regina v Taktak (1988) 34 A Crim R 334 Regina v MacDonald (unreported, NSWCCA, 12 December 1995) CASES CITED : Regina v Scognamiglio (1991) 56 A Crim R 81 Regina v Anderson [1981] VR 155 Regina v Letteri (unreported, NSWCCA, 18 March 1992) Regina v Wright (unreported, NSWCCA, 28 February 1997) DECISION : See para 30

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

BELL J

Friday, 23 July 1999

70088/97 - REGINA v Susan Maria HALL 70214/97 - REGINA v Colin George HANSLOW

SENTENCE

1 HER HONOUR: On 29 March 1999 Susan Maria Hall and Colin George Hanslow appeared before me together with a co-accused, Colin David Simpson. On that occasion, Susan Maria Hall pleaded guilty to one count on indictment charging her with the manslaughter of Gary Henderson on a date between 19 August and 26 August 1996. Colin David Simpson pleaded guilty to maliciously inflicting grievous bodily harm upon Gary Henderson on or about 19 August 1996. Colin George Hanslow was not represented on that occasion and I stood his matter over, without taking a plea, to enable him to obtain a grant of legal aid. 2 The proceedings against Hall and Simpson were stood over for submissions on sentence. On 4 June 1999 I sentenced Colin David Simpson to a term of twelve months penal servitude comprising a minimum term of eight months and an additional term of four months. It should be noted that this sentence was expressed to take into account the circumstance that Mr Simpson had already served, prior to his release on bail, a period of two years and twenty-six days custody solely referable to the commission of the subject offence. 3 On 27 May 1999 when the matters of Hall and Simpson were listed before me for submissions on sentence Colin George Hanslow was arraigned on an indictment which charged him with the manslaughter of Gary Henderson and with being an accessory after the fact to the infliction of grievous bodily harm upon Gary Henderson by Colin Simpson. He pleaded not guilty to the manslaughter count and guilty to the accessory count. Both matters were stood over to 16 July. It was anticipated that the Director of Public Prosecutions would give consideration in the interim as to whether it was proposed to proceed on the manslaughter count. In the event, I was informed on 16 July, that the Crown did not propose to proceed with respect to that matter. 4 The body of the deceased, Gary Henderson, was found on the afternoon of 28 August 1996 lying on a mud bank adjacent to the water's edge near the Silverwater boat ramp at Lansvale. The deceased was a single man aged about 35 years. He suffered from cerebral palsy. Both his left arm and left leg were wasted. Additionally it appears that he was intellectually disabled. He was a slightly built individual. Dr Ellis, pathologist, examined the body at the site and subsequently conducted a post mortem. The doctor concluded that death was caused as the result of head, chest and abdominal injury, compression of the neck, probable immersion/drowning. 5 The police investigations revealed that the deceased had been living in a caravan at the Lansvale Caravan Park with Susan Hall and her de facto partner, Colin Hanslow. Colin Simpson was on friendly terms with both Hall and Hanslow and on occasions he visited them at the caravan park. All three suffered to some degree from intellectual handicap. 6 The caravan appears to have been rented by Susan Hall and Colin Hanslow. The deceased came to stay with them some weeks prior to his death. He had given Ms Hall his bank "Handycard". It appears that the proceeds of his pension were withdrawn from his account by Ms Hall who used the funds for the purchase of food and other necessities. In this sense Ms Hall assumed some responsibility for the care of the deceased. 7 On or about 19 August 1996 the prisoner, Colin Simpson, inflicted a severe beating on the deceased. This occurred in the caravan. From that time on the evidence suggests that the deceased did not leave the caravan prior to the evening of 26 August when he was transported from there to the vicinity of the boat ramp. At that time the likelihood is that he was dead. The latter conclusion cannot be assumed with confidence since Dr Ellis was not able to exclude drowning as a cause of death. 8 In the period preceding the assault upon the deceased it would seem there had been some tensions in the caravan. The deceased had difficulty in attending to matters of personal hygiene and this became a source of some frustration to Ms Hall and Mr Hanslow. It also appears that the deceased was believed to have given out Ms Hall and Mr Hanslow's silent telephone number to some unnamed person or persons. Finally there was a suggestion that the deceased was a child molester (there is no evidence to suggest this was the case). A combination of these matters appears to have led Colin Simpson to embark on his assault on the deceased. 9 There is little evidence as to what happened in the period of about a week following that assault prior to the deceased's death. 10 On the evening of 26 August Susan Hall and Colin Hanslow were observed carrying the body of the deceased from the caravan and placing it in the rear of their panel van. From there the body was transported to the vicinity of the Silverwater boat ramp. 11 The basis upon which the Crown put its case against Susan Hall, and upon which the plea was entered, was that of manslaughter by omission. It is common ground that in the period following the assault upon the deceased by Colin Simpson, Susan Hall ought to have obtained medical assistance for him and that she failed so to do. The Crown case against Colin Hanslow depends wholly upon his actions in assisting in the removal of the deceased from the caravan and placing his body near the Silverwater boat ramp. 12 I will deal firstly with the prisoner Susan Hall. On 27 May 1999 when I heard submissions on sentence with respect to both Ms Hall and Colin Simpson, a set of agreed facts was tendered and became Exhibit Q in the proceedings. On that occasion a submission was advanced on the prisoner's behalf that her culpability with respect to the failure to obtain medical assistance needed to be evaluated in the light of her intellectual handicap. I subsequently sought further submissions from both the Crown and on behalf of the prisoner as to the basis upon which the plea had been entered. The agreed facts, while setting out quite a deal of background material, did not, in terms, identify the facts relied upon as establishing either the legal duty to which it was said Susan Hall was subject nor the particulars of breach of that duty in terms of the failure to provide assistance. 13 It is plain that at common law a person does not incur criminal liability in respect of his or her failure to take action to prevent the occurrence of harm to another: R v Taktak (1988) 34 A Crim R 334. Before a person may be convicted of manslaughter by omission it is necessary to identify a legally recognised duty to act to which the accused was subject. One recognised duty is that of a person who voluntarily assumes the care of another who, by reason of age or incapacity, is unable to care for him or herself. The failure to provide medical assistance and/or food to that person may expose the carer to liability for manslaughter. This is the basis upon which the case against Ms Hall is put. The Crown points to Ms Hall's acknowledgment, in a statement that she made to police, that she was aware that Gary Henderson suffered from cerebral palsy. Reliance is also placed on the financial arrangements between the deceased and the prisoner involving her assuming the custody of his Handycard and purchasing food and other necessities on his behalf. The Crown points to admissions by Hall as to her knowledge of the infliction of injuries upon the deceased by Simpson during the course of the assault on 19 August. There is evidence from Dr Ellis that the deceased had bed sores. The Crown does not suggest, having regard to Ms Hall's intellectual limitations, that the appearance of bed sores should have alerted her to the need to turn the deceased in the bed. Rather, the Crown points to the evidence as to the bed sores as showing that in the week following the assault by Colin Simpson the deceased was immobile in bed. Such a view receives support from the evidence of the witness, Vanessa Jett, who called to the caravan on an occasion after the assault. She observed that Gary Henderson was lying inert on his bunk. She spoke with him and observed that he was bruised. 14 Mr Rumore who appeared on behalf of Ms Hall on the last occasion conceded that it was open to me to find that, in the days following the assault by Colin Simpson, the deceased was immobile. He accepted, as must flow from the plea, that despite her intellectual deficit Ms Hall had the capacity and did know that Gary Henderson's injuries were such that he required medical attention. It is upon this basis that I approach the matter of sentence in the case of the prisoner Susan Hall. 15 I have the benefit of a helpful and detailed report by G.D. Fathers, psychologist, who assessed Ms Hall shortly before these proceedings. That report describes her background. The prisoner is an unemployed 37 year old woman in receipt of a disability support pension. She has been a recipient of such a pension since about 1978. Both Ms Hall's parents are deceased. She gave Mr Fathers an account of growing up in a home characterised by frequent violent episodes by her father. She was aged about 6 or 7 when he died. Her mother died in 1978 when she was about 17. 16 It appears that prior to her mother's death Ms Hall had been made a State Ward. She had had frequent contact with the Department of Youth and Community Services up until the age of about 21 years. More recently, she appears to have had contact with officers of the Department of Community Services on occasions, although the reasons for that were not clear. 17 The prisoner's schooling was limited. She attended "Mater Dei" in Camden which catered for the intellectually handicapped and learning disabled. Most of the focus of activities at "Mater Dei" appears to have been of a diversionary nature with an emphasis on practical skills such as craft work, social interaction and the development of personal routine. After leaving "Mater Dei" she lived for a time at a place called "Brushfarm" at Eastwood. Mr Fathers describes this as an institution for people with intellectual impairment and pervasive developmental disorders. The prisoner appears to have left Brushfarm when aged about 17. From there she went to live in a hostel in Wollongong where she remained for several years. That hostel also served as a sheltered workshop and training centre. 18 When she was aged about 20, the prisoner moved to Sydney. Some time following that move she met her de facto husband, Colin Hanslow. She appears to have been in a relationship with Mr Hanslow for most of her adult life. She has no work history apart from the time spent in work preparation centres or sheltered workshops. Mr Fathers summarises the position in this way: "Ms Hall presents as intellectually impaired and therefore not fully able to think and reason. She has a history of living in personally and socially impoverished circumstances, supported by pension assistance. While functional in a personal and social sense, Ms Hall can only manage a limited routine and does need assistance and re-assurance in this. She has no work history and no work task skill set. Her education was very limited and interrupted by her intellectual impairment and other learning disability, her need for institutional care due to family dysfunction and neglect and Ms Hall's sometimes difficult behaviour." 19 I have also been supplied with a psychiatric report prepared by Dr Lucire. Dr Lucire notes that Ms Hall "is a mentally retarded person and has been so from birth". She goes on to observe: "The intelligence tests show a high degree of scatter so there is a lack of evenness in her functioning. Some of the more subtle mental capabilities might be entirely absent."