Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: BW v R [2011] NSWCCA 176 Hearing dates: 4 February 2011 Decision date: 23 February 2011 Before: Whealy JA, RS Hulme, Harrison JJ Decision: (1) Leave to appeal granted (2) Appeal dismissed Catchwords: CRIMINAL LAW - Severity appeal - Manslaughter by criminal neglect - Crime in worst case category - sentence not manifestly excessive - no error in factual findings - child neglect - starvation death. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 s3A Cases Cited: R v BW & SW [No 3] [2009] NSWSC 1043 Taber v R; Styman v R (2007) 170 A Crim R 427 at [102] R v Forbes (2005) 160 A Crim R 1 [133] - [134] R v Green [1999] NSWCCA 97 at [24] R v Vongsouvanh [2004] NSWCCA 158 at [38] R v Alexander (1994) 74 A Crim R 141 at 144 R v McGuire (Unreported, NSWCCA, 30th August 1995) R v Troja (Unreported, NSWCCA, 16th July 1991) Clare v The Queen (2008) 181 A Crim R 450 R v Guider [2002] NSWSC 756 R v Hoerler (2004) 147 A Crim R 520 Taber v R; Styman v R (2007) 170 A Crim R 427 R v Thomas Sam and Manju Sam [No 18] [2009] NSWSC 1003; 149 A Crim R 38 Veen v The Queen [No 2] (1988) 164 CLR 465 at 478 Ibbs v The Queen (1987) 163 CLR 447 at 451. Gilson v The Queen (1991) 172 CLR 353 at 364 Baumer v The Queen (1988) 166 CLR 51 at 57 R v Dodd (1991) 57 A Crim R 349 Veen v The Queen (1979) 143 CLR 458 Category: Principal judgment Parties: "BW" (Applicant) Regina (Respondent) Representation: J Stratton SC (Applicant) P Ingram SC (Crown) Legal Aid Commission (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2008/16466 Publication restriction: Nil Decision under appeal Jurisdiction: 9111 Citation: [2009] NSWSC 1043 Date of Decision: 2009-10-02 00:00:00 Before: R A Hulme J File Number(s): 2008/16466 2008/15683 Judgment 1WHEALY JA: This is an application for leave to appeal in respect of a sentence imposed in the Supreme Court of New South Wales by his Honour Justice R A Hulme. The applicant had been convicted on 23 rd June 2009, after a trial for murder of his daughter, "Ebony", of the lesser charge of manslaughter. On 2 nd October 2009, he was sentenced to 16 years imprisonment, with a non-parole period of 12 years, the sentences to date from 17 th November 2007. 2The maximum penalty for the offence of manslaughter is 25 years imprisonment. There is no standard non-parole period. 3The applicant's wife had been tried with him. She was found guilty of murder and sentenced by Hulme J to life imprisonment. 4In his comprehensive remarks on sentence, the learned sentencing judge described the basis of the Crown case brought against the applicant on the alternative charge of manslaughter:- In relation to the alternative of manslaughter, the Crown case was one of criminal negligence. The Crown was required to establish that the accused was negligent because he had breached the duty of care by failing to provide adequate nourishment and/or obtain medical attention for the child; that such omissions caused the death of the deceased; and that such omissions fell so far short of the standard of care which a reasonable person would have exercised and involved a high risk that death or grievous bodily harm would follow. The Crown was also required to establish that the degree of negligence was so serious that it should be treated as criminal conduct. 5Ebony was born on 22 nd March 2000 and died some time during the night of 2 nd - 3 rd November 2007. She was seven years and seven months old. Death was a result of starvation and neglect. 6When Ebony was born, she weighed merely 2.9 kilograms. In her early years, she failed to thrive or to meet developmental milestones. She was diagnosed with global developmental delay, for which there was, at that stage, no apparent obvious medical reason. She did not crawl until she was 15 months, and was still unable to walk at 22 months. For the first four years of her life, her weight was abnormally low. In addition, Ebony was slow in developing verbal communication skills and at 34 months was assessed as functioning as a child of 13 to 16 months. 7By the time she was four, her weight was still below average, but she was now gaining weight at a normal rate. By the time she was five, she weighed 19.6 kilograms, and was described by a specialist as "a well-nourished short girl". She had gained 5 kilograms in the previous 9 months. 8In April 2005, a formal diagnosis of autism was made. She demonstrated behavioural problems, and was prescribed medication. It was apparent, however, that very little attempt was made by her parents to provide her with the benefits of these medications for her condition. 9Ebony was medically examined at the Sydney Children's Hospital in February 2006, when she was brought in for a hernia repair. She was by now 20.5 kilograms, and there was evidence that, had she maintained her weight at the relevant percentile, she would have been expected to weigh 26 kilograms in November 2007. There was expert evidence that there was no reason for her not to continue at that percentile, provided she were properly nourished. Ebony saw a general practitioner at the end of February 2006, and again on 27 th March 2006. The doctor had not seen her since September 2003, and he noted that she had made a physical transformation to have become "quite a chubby six year old". The March 2006 visit to the general practitioner (for general vaccinations) was, it seems, the last occasion that Ebony was seen by any medical professional. 10Although there was talk of Ebony being placed in a special school, it appears that her parents never made arrangements for her to attend such an institution. Excuses were made, typically, that she was ill. In August 2006, her mother obtained a medical certificate from a general practitioner excusing Ebony from attending school, on account of her global developmental delay, for the rest of the year. 11The Department of Community Services had some involvement with the family from at least 2002 onwards. The younger sister of Ebony had been taken into care by the Department soon after she was born in March of that year. Despite a number of home visits, no community services officer saw Ebony at any time. Once such visit occurred in April 2007, when the officer saw Ebony's two older sisters. They were told that Ebony was sleeping and would be too "distressed" to know that the Department was involved, and that officers were present. 12The family lived in Beauchamp Road Matraville for a number of years before they moved to Hawks Nest at the end of August 2007. There was evidence that in March 2007 an officer of the Department of Housing attended the home and found it to be "in a putrid state". A woman who lived next door gave evidence of only seeing Ebony outside the home on one occasion. This was in about May 2006. Otherwise, the neighbour only ever saw Ebony in her bedroom, the window of which faced the neighbour's home. She never saw anyone else with her in the room. The neighbour said she appeared to be left in the room for lengthy periods of time with the door closed. The window had been broken in late 2006 - early 2007. After it was repaired, a piece of plywood was affixed, so as to cover the lower half of the window. Although the neighbour could still hear Ebony, she never saw her again. When she had seen Ebony in the street in May 2006, the neighbour thought she was a "healthy, chubby-looking girl". Another neighbour went into the house at Matraville soon after the family had moved out. She said that Ebony's room had piles of faeces in the corner and the room had a bad smell of both faeces and urine. 13The last known person to see Ebony outside her immediate family members was the removalist who had been engaged to move the household contents from Matraville to Hawks Nest on 31 st August 2007. He was told not to go into Ebony's bedroom at Matraville, because the child was autistic and would be crying and cranky if woken. He did, however, see Ebony in one of the bedrooms after they arrived at Hawks Nest. He described her as "unusually skinny". He said that she appeared quite young, around three years of age. Ebony was, of course, 7 years and 5 months old at that time. 14At the trial, the Crown called a number of witnesses who lived and worked in the Hawks Nest area, and who were aware that the family had moved into the district. While they saw the parents, none of them ever saw Ebony. A television technician gave evidence that he was called to the home, but the door to what must have been Ebony's bedroom was closed. He said there was rope tied between the door handle of that door, and the door handle of another door, in a way that would have prevented Ebony from opening the door from inside her room. 15A large number of family photographs were seized by police from the Hawks Nest home, after Ebony had died. They included a photograph taken on a family holiday in December 2004. The photograph showed Ebony as a well-nourished child. However, from about July 2006 until her death, there were a large number of family photographs taken on various festive occasions, such as birthdays and Christmas. Ebony did not appear in any one of these photographs. 16Ebony was found dead in her bedroom by her mother on the morning of Saturday 3 rd November 2007. Dr Nadesan, a forensic pathologist, attended the house that day. He said he saw "a little child dead... in an extreme degree of emaciation... wasted and dehydrated. It looked almost like a mummy to me." He described her clothing and bedding as heavily stained, possibly from a combination of vomit and faecal stains and other bodily fluids over a period of time. There was a very strong smell of urine and other unpleasant body odours. 17Dr Nadesan's post-mortem examination of the body revealed that Ebony at death weighed just nine kilograms, less than half her weight in February 2006, and approximately the third of the weight she would have achieved in November 2007, had she grown and been nourished as expected. 18Dr Nadesan provided a great deal of detail arising from his post-mortem examination. In brief, it appeared to the doctor that the body was extensively wasted and dehydrated. There was hardly any subcutaneous fat present. The muscles were wasted and dehydrated. The hair was unclean and heavily matted with dirt. He concluded that death was due "to starvation and neglect". Dr Nadesan expressed the view that this was a case of "chronic" as opposed to "acute" starvation. Dr Nadesan described chronic starvation as, "a periodical reduction in the administration of food and fluids and so forth - this kind of scenario will go on for several months before a person would succumb to it." 19The sentencing judge summarised the evidence of Dr Edward O'Loughlan, who had been called at trial. He was a specialist gastroenterologist at Westmead Children's Hospital. He reviewed all the relevant material, and gave evidence confirming that death was a result of chronic malnutrition caused by starvation which, he said, was a result of profound neglect. 20Dr O'Loughlan said that the lack of food in the gastrointestinal tract indicated that it had been many hours or days since Ebony had last eaten solid food. He said it would have taken "weeks" as a minimum to get into this state, possibly many months. Dr O'Loughlan had seen many hundreds of children whom he had treated for malnutrition over many years, but he had never looked after somebody so malnourished. The solid faecal matter found in the bowel he described as "starvation stools". He said they had been there for a long time, and indicated lack of solid food intake for days to a couple of weeks. Further, he commented upon the description of Ebony given by the removalist who had seen her on 31 st August 2007. He said this indicated that there had been a protracted problem that had gone over many months for Ebony to have got to the state she was in at death. 21Finally, the sentencing judge commented on the nature of the photographs taken of Ebony after her death. He described these as "the most horrific images of a deceased child imaginable". The learned judge said it was only by viewing the photographs that "the full horror of Ebony's death, and the desperate state she was in for some time leading up to it" could be properly understood. He said it was patently clear that anyone would have realised, at least in the days leading up to her death, that unless she were provided with nourishment and/or medical attention, she would certainly die. It was clear, his Honour said, that for a matter of weeks, it would have been obvious she would probably die. This was all the more so if the person had seen Ebony's demise from "a chubby little girl" at twenty kilograms at the age of 5 years and 11 months, to a skin-covered skeleton of nine kilograms at age 7 years and 7 months. Objective seriousness of the offence 22The sentencing judge made a number of factual findings relevant to the objective seriousness of the applicant's offence. First, his Honour noted that Ebony was only seven years old at the time of her death, and was considerably more vulnerable than other children of that age because of her medical history and problems. Secondly, he found that both the applicant and his wife had failed to do all they could to seek assistance for Ebony in relation to her medical, developmental and educational problems and needs. This was through either incompetence, self-interest, disinterest, negligence, or a combination of all those factors. Thirdly, he found there was a complete absence of medical oversight of Ebony's condition for the last 20 months of her life. Fourthly, Ebony was denied simple childhood pleasures, and stimulation, especially in the last 16 months of her life. In that regard, she was kept a prisoner in her own bedroom for lengthy periods of time when the family lived at Matraville and at Hawks Nest. Fifthly, the bedroom in which she was confined at both homes was filthy. It doubled as her toilet. Sixthly, Ebony was the subject of chronic starvation over many, many months. Seventhly, Ebony's hygiene was seriously neglected and there was no reason to think that this was limited to the time of her death. It was likely to have been an enduring state of affairs. Both parents were aware of the squalid conditions in which Ebony was living. The foul smells coming from her bedroom would have been perfectly apparent to the applicant and his wife. The judge rejected BW's excuse that he breathed through his mouth, and so he smelt nothing, as "palpable nonsense". Eighthly, by the time the family moved to Hawks Nest on 31 st August 2007, she was thin and unwell, to the knowledge of both the applicant and his wife. Finally, there was nothing in the applicant's use or abuse of prescription medication that denied him the ability to perceive Ebony's deteriorating condition, or the capacity to do something about it. His Honour expressed his conclusion as follows:- [162] In a gross abrogation of his parental responsibility, BW simply ignored Ebony. He knew that she was thin and unwell at the time of the move to Hawks Nest, and yet he displayed no interest in her whatsoever. He realised that she was being confined to her bedroom. Even when locked in that room, the distress that she was in that Dr O'Loughlan spoke of would have been audible. BW could not have cared less. A father could show no less love to his child. The abject cruelty that had become her existence was of no concern to him. [163] Rather than being something that might reduce his moral culpability, BW's preference to absorb himself in his abuse of prescription medications and his punting and other personal activities was further indication of his self-interest and lack of concern. BW's abuse of prescription medication provides no excuse for him and does not reduce his moral culpability. Subjective circumstances of the applicant 23The sentencing judge made a number of findings favourable to the applicant arising out of his subjective circumstances. The applicant was born in 1961 and was aged 46 at the time of the offence. He had no previous convictions, although, in the light of his prior prescription drug addiction, and the methods he employed to obtain such drugs, a finding of good character, his Honour thought, would be difficult to make. 24The applicant left school in Year 11 and went to work for his father. The work came to an end when his father was jailed for fraud. BW had been on a disability pension since that time. He said that this was because of his addiction to Valium since about the age of 18. 25The applicant gave evidence that he was taking twenty-five or more Valium tablets per day, as well as eight Panadeine Forte tablets in 2007. There was evidence at the trial from Professor Stammer, who thought that the possible undesirable side-effects of these drugs would impair a person's ability to perform unusual or difficult tasks, or tasks that would require the exercise of choice. However, the sentencing judge noted that the applicant was capable of driving a car, shopping, paying his bills, studying the form guide, placing bets over the internet, and engaging and trading on eBay. He was not persuaded that the applicant's abuse of medication had any bearing on his ability to appreciate what was happening to Ebony, or upon his ability to do something about it. 26Ultimately, the sentencing judge said he was unable to find in BW's favour that he was remorseful for his offence. It seems the applicant had made statements of remorse to a psychologist, Dr Nicholas. However, the judge thought he could give little weight to this, since the applicant had not given evidence during the sentencing proceedings. 27Despite this finding, the trial judge did accept that the applicant had been prepared to take some responsibility for the death of Ebony, when he gave his evidence before the jury. BW had accepted that he should have paid appropriate attention to her health and wellbeing, but that he did not because, as he said, "I was in my own world then". He also expressed a realisation that everyone else was not to blame, and that persons from the various government, medical and welfare agencies had only been trying to assist. 28His Honour found that the applicant was unlikely to re-offend, and had good prospects of rehabilitation. Imposing sentence 29In imposing sentence on the applicant, his Honour found that the applicant had been aware that Ebony was in a parlous state prior to her death. He said he was satisfied that the applicant had seen her at the time of the move to Hawks Nest, at which time she was thin and unwell and looked less than half her age. He had admitted to having seen her on at least three further occasions after the move, but the evidence did not establish precisely when these other occasions were. His Honour held, however, that as terrible as Ebony might have looked at the time of the move, she would have only deteriorated after they had moved to Hawks Nest. 30His Honour took care to find that the applicant's negligence was restricted to his failing to be aware of the state she was in immediately prior to her death, and thereby failing to do anything about it. 31His Honour repeated, however, that the applicant would have been aware that the child was thin and unwell. He would have been aware that she was being kept in a putrid bedroom. He would have noticed the state of her hygiene, from the appearance of her hair at least. Although his Honour found it hard to accept that the applicant never went into the bedroom, he was satisfied that he was aware of the foul odours that would have emanated from the room, and had earlier commented on the fact that the sounds of her distress would have been audible to him in the house, even if BW did not go into the room. 32In the ultimate, his Honour concluded that the objective gravity of the applicant's offence was "within the worst case category for the crime of manslaughter". His Honour said:- To establish an offence of manslaughter by criminal negligence, it must be proved that the negligence of the offender merits criminal punishment, because it fell so far short of the standard of care that a reasonable person would have exercised in the circumstances; it involves such a high risk that death or really serious bodily harm would follow; and the degree of negligence is so serious that it should be treated as criminal conduct. In this case, there was a high risk of death, not just a really serious bodily harm. The difference between the standard of care that a reasonable person would have exercised and that which BW exercised was vast. He provided no care at all. And he did not care. It must be borne in mind that BW's negligence involved Ebony experiencing an extended period of suffering preceding her death. His Honour did not think special circumstances had been established. He concluded, however, that the length of the sentence he would impose provided, in any event, more than ample opportunity for post-release supervision. Finally, his Honour allowed that the personal circumstances he had found in the applicant's favour warranted some amelioration of the sentence to be imposed upon him. In the present case, however, he thought it necessary to place particular emphasis on the need for general deterrence, punishment, making the offender accountable for, and denouncing his actions (and inactions). 33It was with those considerations in mind that his Honour imposed the sentence that he did, namely 16 years imprisonment with a non-parole period of 12 years. Grounds of appeal 34The applicant relied on three grounds of appeal. These were:- Ground One: his Honour erred in finding that the deceased was the subject of chronic starvation over many, many months; Ground Two: his Honour erred in finding that the objective gravity of the offence came within the worst category for the crime of manslaughter; Ground Three: the sentence imposed by his Honour was manifestly excessive, especially having regard to other cases of manslaughter by neglect. 35I shall deal with each of these separately. Ground One 36At para [156] of the remarks on sentence, his Honour had said:- Ebony was the subject of chronic starvation over many, many months (per Dr O'Loughlan). 37Mr John Stratton SC, Deputy Public Defender, submitted that on the evidence it was not open to the learned sentencing judge to be satisfied of this matter beyond reasonable doubt. 38The gravamen of senior counsel's argument arose from a comparison of remarks made by Dr O'Loughlan in his evidence in chief, and answers he gave in cross examination. It is necessary, however, to see these various passages in the full context of the evidence given by Dr O'Loughlan. 39Dr O'Loughlan was a staff specialist at the Children's Hospital, Westmead in the department of gastroenterology. He had practiced at the Children's Hospital at Camperdown, John Hunter Hospital, Newcastle, and the new Children's Hospital at Westmead. He was, in addition, a Senior Lecturer in the Department of Paediatrics at the University of Sydney. He explained to the jury that a core feature of his work as a physician was in dealing with disorders of the gastrointestinal tract and the liver, particularly in children. Part of his responsibilities included the nutritional support, and artificial delivery of nutritional support, to children with major problems in the relevant area. Dr O'Loughlan had been provided with a considerable amount of material including the post-mortem video relating to Ebony, the crime-scene photos, and photos of Ebony after her death. He also had regard to a number of medical reports and other medical information. These included the detail of a range of various growth measurements taken during the child's life. 40In the trial transcript [T 696], the following appears:- Question: Having reviewed all the material, did you, as you indicated, conclude that death was due to chronic malnutrition? Answer: Yes. Question: And that it was secondary to starvation? Answer: Yes. Question: Having regard to the degree of starvation, did it say something to you about the way the child had been cared for? Answer: I think it was as a result of neglect. Question: And the level of neglect, having regard to the critical level of starvation experienced by the child, what do you say about that? Answer: Profound. 41Dr O'Loughlan gave evidence of the detailed matters he had observed on the video. These included the depiction of a very emaciated girl with profound muscle-wasting and loss of subcutaneous fat to the extent of skin on bone. The child had "emaciated facial features", that is, giving the appearance of "a skull with a wrapping of skin". The eyes were sunken, a clear indication of dehydration. There were prominent protrusions where the rib cartilages joined the rib bones, and there was clawing of the hands and feet. All of these were manifestations, the doctor thought, of chronic nerve damage and vitamin deficiencies associated with starvation or lack of nutrition. Ebony's hair was matted and there were faeces in it, which would indicate very substantial levels of neglect. 42There were other indications which satisfied the doctor that it would have been many hours or days since the child had last consumed solid food. In that context, he said that it would have been "more than 24 hours". This led to the following question [T 687 lines 30-40]:- Question: In relation to the emaciated state you saw, and as described in the post-mortem report and again in the evidence, what do you say as to how long it would have taken [Ebony] to get to that emaciated state? Answer: It is a difficult question to answer because it would depend on how much food she was getting over the extended period prior to her death. If she was getting no food, it probably would have taken a couple of weeks; if she was getting some food, it may have taken many months to get to that emaciated state. It really depends on how much food she was receiving every day. But she was very severely wasted. I would have said that it would have taken weeks, as a minimum, to get into that state. 43Dr O'Loughlan also commented on the presence of hard compacted faecal material in the large intestine. These were interpreted as "starvation stools". Their condition and presence indicate they had been there a long time and indicated a lack of solid food intake. The material could have been there "from days to a couple of weeks". 44Dr O'Loughlan also commented on the fact that the pancreas was shrivelled and atrophied, as was the liver. The bone marrow was also very undeveloped, which was also a sign of malnutrition. 45Dr O'Loughlan also gave a detailed description of the way starvation leads, through general malnutrition, to ultimate death. This detailed description made it clear that the process can be a slow one, depending on whether no food at all is supplied, or whether inadequate food is supplied over a long period of time. The final stages occur where the heart rate slows down and finally stops, resulting in cardiac arrest. This is, he said, the cause of death "at the end stage of chronic starvation or chronic malnutrition and starvation". 46Finally, in relation to the examination of the medical reports, Dr O'Loughlan said there had been atrophy in the child's brain, which also was a manifestation of chronic malnutrition. He described the brain as "the top of the hierarchy in the body", and to obtain atrophy in the brain in this way, took a long time. He said it was the "very last thing that gets affected". 47During the course of his evidence in chief, Dr O'Loughlan was asked:- Question: How did [Ebony] compare to any of those children? Answer: I have never looked after somebody who is so malnourished and I have seen pictures in textbooks and Holocaust reports and so forth, where malnutrition was that severe... [T 688] 48And again, at [T 715]:- Question: You referred to seeing pictures of children from the Holocaust who were still able to have some movement? Answer: Yes. Question: Can those images, compared to what you see in those photographs with [Ebony], can you draw... Answer: Similar degrees of malnutrition were seen in survivors, but I haven't seen pictures or people who I have looked after with that degree of malnutrition. She was really one of the most profoundly malnourished images or persons that I have seen. 49During the evidence in chief, Dr O'Loughlan had been asked to consider the evidence given by Mr Giallis, a furniture removalist, who had seen Ebony on 31 st August 2007, a little over 2 months prior to her death. This witness had said the child was "quite skinny" and then agreed that she was "unusually skinny". 50Dr O'Loughlan had also been provided with photos of Ebony taken in December 2004 when she was about 4 years old. He was given information about her appearance at the time she had visited medical practitioners in 2006. The doctor was asked to comment on the deterioration of her appearance between the earlier years and her post-mortem appearance. Dr O'Loughlan said [T 697 line 45-50]:- The fact that she deteriorated from that appearance to the post-mortem appearance in the space of two years or three years indicates that some process intervened to cause her to become severely malnourished, unlikely to be related to a chronic disease. 51The prosecutor interrupted the doctor and sought an answer to a slightly different question, as follows:- Question: What I am asking you is, in relation to the sequence that I described, and the description given on 31 st August 2007, and then the appearance as at the time of death in November 2007, are you able to say anything as to... Answer: Well, I think this indicates it is a protracted problem that has gone over many, many months to get from that to the state she was in, in her post-mortem examination. 52Trial counsel for the applicant, during cross-examination, went to the issue of the estimate of the period of time over which chronic malnutrition, leading to death, had occurred. It is appropriate to set out the entirety of the relevant portion of the transcript:- Question: Is it the case that it is not possible to give an estimate of the period of time over which this chronic malnutrition, leading to the death, had occurred because you simply don't have information about what sort of intake of food there was, if any, over a lengthy period of time leading up to the death? Answer: Normally, at the age of four or five or six, if children are left to their own devices in an environment where there is plenty of food, they will make food selections that will ensure normal growth. Those experiments have been done by nutritional experts. So if she had been in an environment where there was a range of nutritious food, she would have eaten what was necessary to make her grow. Question: That's actually not what I was asking you. What I was asking you actually goes back to the evidence which you gave earlier, which was that it may have been the situation where she had no food for a fortnight. Answer: Oh yes, sorry. Question: And it may have been the situation where she was receiving some food, but it wasn't over time sufficiently nutritious for her to maintain a healthy weight. Is that a fair way to describe it? Answer: Yes. [HIS HONOUR] Question: Where does the fortnight come from? [AUSTIN] Answer: That was the evidence of the doctor in chief, that two weeks. [HIS HONOUR] Question: I didn't hear the two weeks. My note is that if there were no food it would be weeks, if there were some food it could be months? Answer: Yeah, that's right. Question: Could you just clarify what your evidence is? [DR O'LOUGHLAN] Answer: Well, if you are completely starving, if you were given enough water, because if you don't get water a healthy adult may die in 5 of 6 days, depending on the condition. [AUSTIN] Question: Through dehydration? Answer: Through dehydration. Withholding of food it may take, complete starvation in a normal healthy adult may take a couple of months, but in a child, because they have higher requirements, it would happen much quicker than that. So the rapidity of the onset of your malnutrition would depend on how much food was given day by day, so a tiny amount of food it would happen much faster, a smaller amount of food versus a slight reduction in the normal requirements. Question: And then, of course, there is that other question as to whether there is adequate water being taken on, or fluids being taken on at the same time as adequate food? Answer: Yes, you die much faster, because water is an essential nutrient, if you don't get it then you die. Question: And is it the case that a child could be receiving an amount of food over months, and even possibly a year or two years, which is not sufficient and that over time that produces a situation towards the end they are suffering from malnutrition, starvation? Answer: Yes, that's possible. Question: And then they can't eat right towards the end of that period? Answer: Well certainly, that's certainly possible. 53Mr Stratton SC referred also to a brief passage in the cross examination of the doctor by counsel for the co-offender. That evidence was as follows [T 708]:- [STEWART] Question: Doctor, it is the case is it not, that medicine, including the area of your specialty, is not an exact science? Answer: Yes. Question: And in many respects, the opinions you have in regard to a matter such as this are an attempt to establish probabilities? Answer: As accurately as possible, but yes. Question: And your evidence with regard to what your opinion is in respect to what [Ebony's] movement may have been or capacity for movement may have been, your opinion is based on probabilities, correct? Answer: Yes, because I didn't see her at the time of her death... I based my opinion on the probability or likelihood. 54Mr Stratton has submitted, correctly, that the finding by the sentencing judge that Ebony had been the subject of starvation over many, many months was an aggravating factor. For that reason, again correctly, Mr Stratton submitted that the sentencing judge needed to be satisfied of this fact beyond reasonable doubt. Senior counsel's submission was that there was a "very uncertain evidentiary support" for the proposition, and that, in those circumstances, it was not open to his Honour to be satisfied beyond reasonable doubt that it was so. 55We are satisfied, however, that the finding made by the sentencing judge was one that was well open to him. First, the opinions expressed by Dr O'Loughlan were based on a range of material that relevantly enabled him to draw conclusions about the likely duration of malnutrition/starvation endured by Ebony. Dr O'Loughlan expressed opinions about possible time parameters that varied, depending on whether the child had continuously been deprived of all food, or whether she had progressively been neglected in a substantial way in terms of the provision of proper nutrition. In this regard, Dr O'Loughlan was able to express likely conclusions about those time parameters, especially having regard to Ebony's physical condition at death, that is the state of her body, and the conditions of her internal organs and brain. 56Secondly, it was clearly open to his Honour to draw on this material to conclude, as he did, that what had been involved was "chronic starvation" over many, many months. (It will be recalled that Dr Nadesan had drawn the distinction between cases of "chronic" as opposed to "acute" starvation. Dr Nadesan had described chronic starvation as a protracted reduction in administration of food - "this kind of scenario will go on for several months before a person would succumb to it"). His Honour chose the expression "chronic starvation" deliberately. It was not intended to convey the notion of a complete withdrawal of all food for many months, but rather a general, but serious failure to provide anything approaching proper nutrition over a protracted period of time. Dr O'Loughlan's evidence recognised this distinction as well, and applied it to Ebony's situation. 57Mr Stratton SC argued, however, that the "protracted problem" referred to by Dr O'Loughlan was not "starvation". But clearly it was, at least in the sense, as he later made clear during his cross-examination, of substantial withdrawal of proper nutrition. The process that "intervened', as the doctor described it (T 697, line 50) had been one that caused the child over a lengthy period of time to become "severely malnourished". Such a process was appropriately described (as his Honour did) as "chronic starvation over many, many months". Ground Two 58Mr Stratton SC argued that the finding that the objective gravity of the offence was within the worst case category was not open to his Honour. There were two strands to this argument. The first was based on graphs prepared by the Judicial Commission of sentences for the offence of manslaughter imposed between January 2002 and December 2008. There is no need to reproduce these graphs in this decision. 59Mr Stratton correctly noted that there were 195 cases dealt with in the graphs. The median head sentence was seven years. The median non-parole period was four years. By contrast, senior counsel noted that the head sentence imposed on the applicant in the present matter was more than twice the median head sentence for this offence. The non-parole period was more than three times the median non-parole period for manslaughter. In all, only four of the 195 offenders received a higher head sentence than that imposed on the applicant. Only one received a higher non-parole period. 60The second strand of the argument was based on an examination of four serious cases of manslaughter, where high range sentences were imposed. Mr Stratton's point was that, in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness. The argument put was that each of the cases examined demonstrated that death had been caused by the offender during the course of the commission by him (or them) as an incident of a serious crime intentionally committed, and directed at the deceased. A comparison of the facts in the present matter with the facts of the cases Mr Stratton examined, suggested, counsel argued, that the present matter fell well short of the "worst class of case". 61We are of the view that there is no substance in this second ground of appeal. In relation to the graphs and statistics argument, it is necessary to bear in mind that, in the case of manslaughter especially, neither a consideration of statistical information, nor, for that matter, an examination of the results in other decided cases, illuminates in any decisive manner the decision to be reached in a particular case. Sentences for manslaughter vary greatly, because of variations in the circumstances of the individual instances of the offence: Taber v R; Styman v R (2007) 170 A Crim R 427 at [102]; R v Forbes (2005) 160 A Crim R 1 [133] - [134]; R v Green [1999] NSWCCA 97 at [24]; see also R v Vongsouvanh [2004] NSWCCA 158 at [38] where reliance on data was described as "unhelpful and even dangerous"; R v Alexander (1994) 78 A Crim R 141 at 144; R v McGuire (Unreported, NSWCCA, 30 th August 1995); R v Troja (Unreported, NSWCCA, 16 th July 1991). 62In relation to the second aspect of the argument, a brief examination of the cases referred to by Mr Stratton in his written submissions demonstrates immediately the point made by these authorities: Clare v The Queen (2008) 181 A Crim R 450; [2008] NSWCCA 30:- 25 years with a non-parole period (reduced on appeal) to 15 years 9 months. This was a case clearly in the worst category. It involved a plea of guilty to manslaughter for the death of a three year old child. This occurred as a consequence of the child choking to death on his own aspirated vomit during a sexual assault. The perpetrator, however, was not the parent of the child and the incident, horrific though it was, was a one-off, not, as in the present case a protracted episode of total and uncaring neglect. R v Guider [2002] NSWSC 756:- 17 years with a non-parole period of 12 years. This case involved a plea of guilty to manslaughter for the death of a nine year old girl, Samantha Knight. The offender had administered Normison to facilitate the taking of indecent photographs. Tragic though it was, the case did not involve any protracted period of neglect and, once again, the offender was not the father of the child. R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184:- 14 years 4 months with a non-parole period of 10 years 9 months. This case involved a late plea of guilty to manslaughter for the death of a seven month old baby caused by the offender, who was a male friend of the mother. Death was caused by aspiration of vomit, following upon the infliction of multiple injuries consistent with the child having been beaten by a number of blows to the head and body. In addition, a clamp had been attached to the toes, resulting in a crush injury. This court upheld a Crown appeal, and identified, prior to discount, a starting point of 16 years as an appropriate sentence. The evidence did not reveal the reason for the offender taking the child from the pram into the loungeroom and there apparently striking him repeatedly, although it seems the offender had earlier drunk about nine bottles of beer and was probably affected by both beer and cannabis. It is clearly a case that bears no comparison to the present. But equally clearly it provides no useful guide to the correctness of the present sentence. Taber v R; Styman v R (2007) 170 A Crim R 427; [2007] NSWCCA 116:- 18 years with a non-parole period of 13 years 6 months. The offenders were each convicted of manslaughter after trial. The men had robbed an elderly lady and left her tied in her home. A perfunctory call was made to Triple 0, but the offenders did not again check with the authorities to confirm that the call had been acted upon. The deceased was not found and released, and died, still tied up in her home, about nine days later. Both offenders had extensive criminal records, and were sentenced on the basis of a starting point of 18 years. The circumstances of this case, although dreadful, provide little assistance in the assessment of sentence in the present matter, given the considerable difference in circumstances. Generally, we do not accept that the fact these four cases involved the commission of another serious offence, and that death was caused during the execution of that crime, represents a significant point of distinction for present purposes. The horrific nature of a particular death, and its attendant circumstances, must be evaluated in its own precise context. 63Essentially, Mr Stratton submitted that the facts of the present matter fell well short of "the worst class of case". The Crown, on the other hand, argued that the circumstances of the case clearly brought it within the worst case category. We have no difficulty in accepting that it was clearly open to the sentencing judge to find that this was a case within the worst category. The court has earlier recited the matters which went to establish the objective seriousness of the offence in the present matter. The sentencing judge's careful evaluation of those circumstances, and the matters he thought made this such a serious offence, were completely justified. He rightly described the difference between the standard of care that a reasonable person would have exercised, and that which the applicant exercised as "vast". As his Honour observed, the applicant provided "no care at all". This was a case of protracted and cruel neglect where the applicant showed not a shred of care to his suffering daughter over a long period of time. Ground Three 64It will be apparent from the tenor of this judgment that we are of the view that the sentence was well within range, and cannot be criticised as manifestly excessive. 65Mr Stratton SC briefly examined a number of relatively recent sentences involving manslaughter by negligence where parental or carer neglect, in one form or another, was involved. In our view, there is no need for the court to examine these illustrations in any detail. As Spigelman observed in R v Hoerler at [35]:- Prior cases and Judicial Commission statistics do not often determine a range appropriate for a particular offence. They reflect what was regarded as appropriate in the wide variety of circumstances of those particular prior cases. Whether or not a sentencing pattern can be said to have emerged requires consideration of the whole body of sentences. It is unlikely that any such pattern can be said to have been established unless there have been a significant number of cases covering a wide variety of objective circumstances. Unless that is so, the cases would not encompass the relevant range of objective criminality. 66And again at [41]:- It may be possible to identify a distinct category of manslaughter for which variations on a basically similar factual situation can be identified. (See R v Parazisis & Bird (1991) 51 A Crim R 242 at 245.) However, this can only be done if there is a significant number of cases which share the common characteristic and which represent a very broad range of differing circumstances. Child killing by a parent or carer does not occur so frequently to make it possible to deduce a sentencing pattern from past cases. The same comment may be made in relation to cases where parents or carers have been involved in the criminal neglect of their child. 67In any event, it may be safely said, even without a detailed examination, that the circumstances of each of the cases mentioned by Mr Stratton in his written submissions do not reveal a level of criminality equal to that disclosed in the present matter. Most of the cases involve bizarre or inadequate care, often based on extreme religious or eccentric convictions of an unusual kind. For example, in R v Thomas Sam and Manju Sam [No 18] [2009] NSWSC 1003; 149 A Crim R 38, the case involved parents sentenced after trial in relation to the death of a nine month old child who had succumbed to an infection, secondary to an extreme case of eczema. The skin condition had not been appropriately treated for some months, because the parents chose, in highly unusual circumstances, to restrict treatment to homeopathy. However, in contrast to the present case, neither of the offenders there disregarded entirely their child's plight. They simply chose a wrongful and bizarre way to attempt to deal with it. There was no suggestion, for example, that she was kept a prisoner alone in her bedroom, and that no care at all was provided for her in terms of basic nutrition and the like. 68The present matter, as the sentencing judge rightly observed, involves a parent, in this case the applicant, who had no care for his daughter's well-being at all. It reflects a fundamental and cruel failure of a parent to love and care for a severely disabled child. The criminal neglect could scarcely have been worse. 69The first task facing a sentencing court is to have regard to the maximum penalty for the offence. This prescribes the limits of the court's discretion, as the maximum penalty is intended for cases falling within the worst category of case for which the penalty is prescribed: Veen v The Queen [No 2] (1988) 164 CLR 465 at 478; Ibbs v The Queen (1987) 163 CLR 447 at 451. Prima facie, the maximum penalty indicates the seriousness of the offence: Gilson v The Queen (1991) 172 CLR 353 at 364. 70Secondly, the court must consider where in the range of the conduct covered by the offence the particular criminal conduct committed by the offender falls: Baumer v The Queen (1988) 166 CLR 51 at 57; Ibbs , above, at 452. This will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie. 71The nature of the criminal conduct proscribed by the offence, and the maximum penalty applicable to the offence, are critically important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender, and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: R v Dodd (1991) 57 A Crim R 349, and be proportional to the criminality involved in the offence committed: Veen v The Queen (1979) 143 CLR 458. Whether the sentence imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence. His Honour, in the present matter, appropriately and correctly assessed, where, in the range of conduct covered by the offence, the particular criminal conduct fell. 72The maximum penalty for the crime of manslaughter is 25 years. The sentence imposed by his Honour reflected, however, an amelioration to some extent of the maximum sentence, to take into account the limited favourable subjective circumstances found in the applicant's favour. His Honour then placed particular emphasis upon the need for general deterrence, punishment, making the offender accountable for, and denouncing, his actions (and inactions). These matters were appropriate and were a recognition of the relevant matters required, pursuant to s 3A Crimes (Sentencing Procedure) Act 1999 . In this appeal, it was not suggested otherwise. His Honour was also conscious of the large variety of cases that make up the compendium of manslaughter convictions, but was of the view, correctly, that these were of little assistance and served only to highlight the wide variety of circumstances in which the offence of manslaughter can be committed. 73The sentence imposed by his Honour was a heavy one. It was, however, well within the range of a sentence for a case falling within the worst case category for the crime of manslaughter. Indeed, given the limited range of subjective circumstances and the extreme degree of criminality determined, the sentence imposed may have been, without error, set at a higher level. Be that as it may, this court finds no error in the sentence imposed by his Honour, and determines that it was not manifestly excessive. Indeed, it was completely justified by all the matters that his Honour properly took into consideration. 74Leave to appeal is granted but the appeal is dismissed. 75HULME J: I agree with Whealy JA. 76HARRISON J: I agree with Whealy JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 August 2011