R v HA

Supreme Court of NSW|2008-11-14|Before: Rothman J, Gleeson CJ, Newman J, Yeldham J

I sentence you to a term of imprisonment of 2 years, commencing 18 December 2008 and concluding 17 January 2010.

I order that the execution of the aforesaid sentence be wholly suspended for 2 years and HA be released from custody on condition that she enter into a good behaviour bond for 2 years. DECISION : 3. Such bond shall include the following additional conditions: (i) That HA undergo such counselling as advised by Probation and Parole Service; and (ii) That HA cooperate with officers of the Department of Community Service that may act to ensure that each child of HA is subject to regular medical attention.

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999

Hill v R (1981) 3 A Crim R 397 R v Blacklidge (Court of Criminal Appeal, Gleeson CJ, 12 December 1995, unreported) R v Edwards (1996) 90 A Crim R 510 R v Elliott (Court of Criminal Appeal, Newman J, 14 February 1991, unreported) R v Green [1999] NSWCCA 97 CASES CITED : R v Hoerler [2004] NSWCCA 184 R v Isaacs (1997) 41 NSWLR 374 R v McDonald (Court of Criminal Appeal, 12 December 1995, unreported) R v Schelberger (Court of Criminal Appeal, Yeldham J, 2 July 1988, unreported) R v Warren Alan Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 R v Woodland [2001] NSWSC 416 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465

PARTIES : Regina (Crown) HA (Accused)

COUNSEL : T Thorpe (Crown) J Manuell (Accused)

SOLICITORS : Office of the Director of Public Prosecutions (Crown) Legal Aid Commission of New South Wales (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

REMARKS ON SENTENCE 1 HIS HONOUR: HA is charged with the manslaughter of her son, EA. He died of pneumonia and pyelonephritis. 2 Pneumonia, as most know, is an acute inflammation and infection of the lungs. Pyelonephritis, relevantly, is an acute infection of the kidneys, usually the result of an infection that has travelled up from the urinary tract. 3 Proper medical care, at the appropriate time, would have prevented EA's death from these causes. HA (and her late husband) were responsible for their son and were under a duty of care to obtain medical treatment. In the circumstances of this case, while there was no intention to cause their son's death, or even to cause him harm, the failure to obtain medical treatment involved, to any reasonable person, such a high risk that death would follow, that the failure merits criminal punishment. Medical History of Victim 4 The victim, EA, was born on 10 February 1999. At birth, the child developed severe jaundice as a result of the incompatibility of his blood group and his mother's. This required urgent treatment in the form of an exchanged blood transfusion and phototherapy to avoid serious and permanent brain damage. The parents refused to have their child treated for this problem and thus required the attending physician to report the matter to the Department of Community Services (DOCS) to have treatment instituted. 5 The victim was also born with congenital cataracts, which were identified in the neonatal period. The parents were advised that prompt surgical treatment would have offered him the best hope of normal vision. The parents repeatedly denied consent for this operation until DOCS insisted upon treatment being provided. He had the cataract operation in August 1999, at the age of six months. It is unclear whether the cataract operation, performed at this later time, was too late to offer him real hope, but, necessarily, it involved a far lesser opportunity for recovery or normal vision. 6 The victim had severe physical and intellectual disabilities and his nutritional status was extremely poor. He had a complicated medical background, which would, to a reasonable person, have indicated the necessity for regular medical assessment, but the parents seemed to have made no attempt to seek further medical review. 7 The post-mortem findings describe a child that was extremely malnourished. His weight at the time of his eye operation was 8.06 kilograms. At the time of his death his weight was 6.84 kilograms and his height was the equivalent of an average 15-month-old boy. At the time of his death he was 4½ years old. Expert medical assessment and post-mortem examination show that he has severe Osteoporosis, with multiple fractures. This, once more, emphasised the degree of under nutrition from which he suffered. 8 In evidence, before the Court on sentencing, is a number of medical reports. Obviously, there is a report under the Coroners Act 1980, from the Coroner, and there are a series of expert reports from paediatricians dealing with the health of the victim. One such report is the report of Professor Sillence, Professor of Medical Genetics at Westmead Children's Hospital, which, on the basis of the material before him, concluded that the victim showed a generalised reduction of bone density (severe osteopenia), with multiple fractures. There was no scurvy or Vitamin D deficiency, which would generally tend to indicate malnutrition, and the victim's appearance, nevertheless, could be due, in part, to global nutritional deficiency. The Professor opines that, on the basis of the bone disorder and the history of cataracts, and otherwise generally on the basis of his medical condition, there was a strong possibility that the victim suffered from a genetically determined disorder, Osteoporosis Pseudoglioma Syndrome, or one of the several other forms of Osteogenesis Imperfecta, with eye involvement. 9 Osteoporosis Pseudoglioma Syndrome is an autosomal recessive disorder characterised by cataracts, progressive changes in the retina leading to retinal dysplasia and mild development delay. There is low muscle tone and the Osteoporosis is usually not recognised until late in the first year of life. There is a progressive and severe generalised Osteoporosis and fractures. The Professor notes that parents and health professionals often underestimate the severity of the condition, as the children complain of pain far less often than one would imagine, as many of the fractures occur progressively, rather than acutely. This is because the bones are so fragile that movement by the child can cause the fractures. The skeletal condition is treatable. The disorder, although rare in Australia and in New Zealand, led, in former years, to respitory failure and death. 10 Children with severe Osteopenia eat poorly, or eat selectively, and their reduced appetite contributes to under-nutrition, which makes their bone disease worse. Osteoporosis is under-diagnosed in children and it can be missed by general practitioners, who are not expecting it to occur in children. There is no childhood screening for Osteoporosis. 11 What is clear from the significant number of expert reports, is that EA suffered from a congenital disorder, which was not properly treated. However, the congenital disorder would not have been easily diagnosed, and would have, most probably, been the predominant cause of the bone density issues and lack of development. 12 Nevertheless, EA's lack of development and general weakness would have been noticeable, and should have been noticed, by one or both of his parents, and it would have been, once noticed, relatively easily treated. In the words of Professor Roger W Byard, Marks Chair of Pathology, University of Adelaide, "his need for ongoing medical treatment and care would have been obvious." 13 EA's lack of development and his malnutrition, described as "obvious and obviously needing treatment", was not the cause of his death. As earlier stated, EA died from infections. However, it is likely that those infections took hold and/or were as severe as they were because of the underlying congenital issues and the lack of treatment for them. 14 The evidence before the Court is that, at or shortly before the date of EA's death, all of the family were suffering from the flu and HA thought that her son was also suffering from the flu, rather than the serious infections from which he died. 15 Mr Strahan (Armanaki Ki Tonga George Strahan), who knew the family from church, testified that he saw EA shortly before he died and he did not, at that stage, look sick to him. Indeed, he commented, in that passage of evidence, that EA seemed, at that stage, a normal, happy person and a part of his family (Transcript p 31). 16 The foregoing evidence, from a relatively independent witness, corroborates the view expressed by HA that, other than the flu from which each of her children suffered, she did not notice any greater infection and did not realise the seriousness of the complaint.

17 However I do not regard Mr Strahan's evidence as corroboration or evidence contradicting the expert evidence, otherwise adduced, to the effect that EA's lack of development and malnutrition would have been obvious. HA's History 18 HA was born in 1973 and, as a consequence, was almost 30 years of age when EA died. She is described in a clinical psychological assessment tendered by the Crown as "a tall, plump woman who was neatly dressed and well-groomed." 19 HA grew-up in a family consisting of her mother and father and four daughters. She is the third of the daughters. The family was close. The structure of the family was such that it was an unexceptional family background in which there was no heavy-discipline in the family and discipline was effected by "grounding" the girls as a form of discipline. The father worked very hard, sometimes two or three jobs. The mother worked once the girls went into high school. HA left school at the end of the school certificate, in year 10. 20 HA was a fairly religious person, whose involvement with the church commenced when she was in primary school. At that stage, she used to attend church with her sisters, at the Baptist Church in Mortdale. While her parents and sisters dropped-off church attendance, HA continued, joined a youth group and, if anything, increased her church attendance. From time-to-time she would go out, on weekends, with a church group called Shiloh, a youth group with a Maori Minister. They met at someone's house and went out together. 21 After leaving school, HA commenced a hairdressing apprenticeship but did not complete it. She looked for other work, but was unsuccessful in finding it. 22 When she was 18 she met JA, her husband. They were not legally married, but she subsequently changed her name to adopt his surname. Soon after they met, she became pregnant with their eldest daughter. Because her husband was a Minister, HA returned to church attendance, attending Mortdale Uniting Church. The couple initially lived in a flat and then, once pregnant with their third child, the family moved to a house. There they had two more children. Eventually they moved into housing provided by the Department of Housing. 23 EA was, at the time of his death, one of seven children of HA. At the time of EA's death, HA was heavily pregnant with what became her eighth child (born 11 September 2003). Since that time, she has had another two children. She is the mother of nine children, currently, and of course, was the mother of the deceased, who was her fifth born child. 24 The evidence is that, generally, HA was a good mother who coped well with a large number of children. There is no doubt that HA loved, and loves, all of her children and saw each of them as a blessing (as she described it). 25 As would probably be obvious, her major duties are looking after her family and, it seems, always was. 26 She described her marriage as a "good marriage" and her husband was not abusive. However, it is clear from the evidence that has been adduced in these proceedings, that her husband was, at the very least, dominating. He certainly was the person who made all the decisions in the household and his will, and the decisions that he made, were always implemented. That statement does not mean that HA did not have the capacity to express a point of view, only that, having expressed that point of view, she was required to implement the decisions that he, her husband, made. He was dominant in every aspect of their life. 27 Both HA and her husband were charged with the offence for which HA stands to be sentenced. Her husband died of a heart attack on 27 January 2008, at a time when HA went into labour to give birth to her last child, who was born on 2 February 2008. Sentencing 28 The purpose in sentencing any offender, even those charged with manslaughter, seeks to resolve what are often, if not necessarily, conflicting goals. In serious crimes such as manslaughter, the importance of punishment and public deterrence loom large. These include the protection of society, personal and public deterrence, retribution and reform. Each of these factors, particularly the protective nature of sentencing, personal and public deterrence, and punishment, must have regard to the gravity of the circumstances viewed objectively within the range of crimes that may fall within the offence charged. These point most obviously to the factors that require protection of society, deterrence of the offender and of others who might be tempted to offend, and to retribution. Reform or rehabilitation may also be significantly affected by the objective circumstances of the offences, but is a factor affected most obviously by the subjective circumstances and the capacity for rehabilitation. That capacity for, and the likelihood, if any, of, rehabilitation, in turn, impacts upon the degree to which a sentence is fixed, which ensures the protection of society and the personal deterrence of the offender. There is no single correct sentence and the often complicated interplay of considerations point in different directions. Manslaughter 29 The offence of manslaughter is one for which the maximum available penalty is one of imprisonment for 25 years. The offence involves the felonious taking of human life, and, for that reason, it has been recognised as a most serious crime. Hill v R (1981) 3 A Crim R 397 at 402, R v Woodland [2001] NSWSC 416, per Wood CJ at CL, approved in R v Hoerler [2004] NSWCCA 184 at paragraph 18. 30 The value the community places upon the preservation of human life is reflected by the need to have conduct involved in its taking denounced by a sentence appropriate to the circumstance of the case. R v McDonald (Court of Criminal Appeal, 12 December 1995, unreported), Woodland supra, Hoerler supra. 31 In R v Edwards (1996) 90 A Crim R 510, Gleeson CJ (with whom James and Ireland JJ concurred) quoted with approval the following words from an earlier decision of the Court of Criminal Appeal in Macdonald, supra: "In a case such as the present, it is important to bear in mind the denunciatory role of sentencing. Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been regarded by the law as a most serious crime. The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectation of that system." 32 However, because it is an offence which involves a wide variety of circumstances, it is difficult to obtain much by way of assistance from reference to the Judicial Commission statistics or from other cases. R v Schelberger (Court of Criminal Appeal, Yeldham J, 2 July 1988, unreported), R v Elliott (Court of Criminal Appeal, Newman J, 14 February 1991, unreported), R v Blacklidge (Court of Criminal Appeal, Gleeson CJ, 12 December 1995, unreported), R v Isaacs (1997) 41 NSWLR 374 at 381, R v Green [1999] NSWCCA 97, Woodland, supra, Hoerler, supra. 33 It is an offence where the appropriate penalties vary perhaps more than for any other serious crime contained within the criminal calendar. Elliot, supra. 34 In R v Warren Alan Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1, Spigelman CJ (McClellan CJ at CL agreeing) said: "[133] As has frequently been stated, manslaughter is almost unique in its protean character as an offence. (See in particular the observations of Gleeson CJ in R v Blacklidge (unreported, Court of Criminal Appeal, 12 December 1995, esp pp2-3.) In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder ( R v Weinman (1987) 49 SASR 248 at 252; R v Hoerler [2004] NSWCCA 184; (2004) 147 A Crim R 520 at [39]).

[134] It is also relevant to recognise that, although manslaughters can be characterised in different ways, particularly in the various contexts which may reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter.

[135] For example where diminished responsibility is relied upon, the extent to which culpability is 'diminished' can vary considerably from case to case. Similarly, although it is possible to characterise a number of cases as 'child-killing by a parent or carer', it may never be possible to identify a sentencing pattern or tariff from the whole body of such cases. (See Hoerler supra.) This is not only because the number of cases in a particular category may be too few to establish a pattern or tariff. It is also because, within any such category, the relevant circumstances can vary over a wide range. This is also true in the case of manslaughter by reason of excessive self-defence (see R v Trevenna [2004] NSWCCA 43; (2003) 149 A Crim R 505)." 35 As the Court of Criminal Appeal has said: "The crime of manslaughter comprehends all forms of punishable homicide other than murder ( Crimes Act 1900 , s 18 ). For presently relevant purposes, the crime of murder is taken to have been committed where the act of the accused, causing death, was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Some forms of manslaughter, … involve conduct which would amount to murder, except for the presence of some recognised mitigating circumstance. Other forms of manslaughter, sometimes referred to as 'involuntary', do not involve an intent to kill or inflict grievous bodily harm, or reckless indifference to human life. They may, for example, involve causing death by an unlawful and dangerous act.

It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.

At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. ( R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.)" ( R v Blacklidge (Court of Criminal Appeal, Gleeson CJ, 12 December 1995, unreported.) Objective Circumstances 36 As can be seen from the foregoing, EA was born congenitally ill and remained so. He remained as ill as he was, because his parents did not seek medical attention. 37 The failure, or, more accurately, refusal, to seek medical attention for their son derived from the faith that JA and HA had in the healing power of God. 38 JA, the father, was a Minister at the Free Wesleyan Church at Minto, and had been since 2001. It is not a generally held belief of that Church or denomination that medical attention would not be sought, or that reliance would be placed on God to heal the sick, to the exclusion of medical attention. 39 It was, however, a strongly held view of JA, and a view that HA had, at the time, adopted from her husband. 40 As is made clear in the evidence before the Court, JA was a totally dominating personality within the household and HA was significantly, if not totally, under his control. 41 Manslaughter encompasses the greatest range of criminal culpability ranging from circumstances very close to murder to wholly unintended results of otherwise relatively minor crimes (e.g. a single punch, provoked, where the victim falls awkwardly, and dies). 42 This crime is at the lowest level of criminal culpability associated with manslaughter. It involves no premeditation. It involves no violence. It does involve a breach of trust - possibly the most important trust for which anyone has responsibility - the trust reposed in parents by their child. 43 But even within that kind of relationship, this criminal conduct is at the lowest range. This is not a case in which a parent has generally neglected a child. It is not a case where, either from drug addiction, mental disorder or plain selfishness, a parent has left a child unattended or uncared for. There are no beatings, no dirty nappies, no inappropriate clothing or bedding. 44 When the Police arrived at the scene, on the day of EA's death, the parents were sitting on the lounge, cradling their dead child. 45 This was a child who was loved and, albeit negligently in one major respect, cared for. The Police noted, while the home was cluttered, it was clean: the floors, the sheets, the kitchen. The victim's cot was in his parent's bedroom. The child was, on the evidence before the Court, fed, and he ate as much as his siblings, who are all healthy. His malnutrition, I find as a fact, was due to his congenital disorder, not lack of feeding or lack of ordinary care.

46 Of course, his congenital disorder was treatable and the lack of care was the failure to seek and obtain medical attention for EA. 47 It is difficult, even, for most religious people, who take the view that the intelligence of mankind and, relevantly, medical science is itself a gift from God, to understand the kind of faith that shuns medical attention in favour of the direct intervention of God. Nevertheless, I hold that JA's faith was genuine - it certainly did not involve any lack of love for his children. 48 I also hold that, during the time her husband was alive, HA's faith in God to heal her son (and others) was also genuine. In the subjective circumstances, I will deal with the relationship between HA and her husband. 49 In the range of cases that come within the crime of manslaughter, this must be at the lowest end of culpability - tragic though it is for all who are involved, but mostly tragic for a child that, because of the absence of medical treatment, has not only been denied his life, but has been denied a life that could have been useful and productive. Subjective Circumstances 50 Some of the subjective factors have already been mentioned, and I repeat them only for convenience. 51 The most obvious subjective feature is HA's family history. On one view, given the nature of this offence, this is relevant to the objective circumstances of the manslaughter. In this case, it is difficult to delineate precisely between the two, but the factors are taken into account once only. 52 I have already described HA's early childhood and the circumstances that gave rise to the relationship with her husband. I have also described his dominating personality. 53 During their relationship, JA borrowed money from HA's family and did not repay it. HA was unaware of these factors until JA died. JA cut himself and HA off from her family - not totally, but almost totally. 54 HA's mother attested to the fact that, notwithstanding their closeness during her teen years, once HA lived with JA, she saw her mother only three to four times per year. HA, her mother said, cut herself off from everybody. 55 Likewise was the relationship with her sisters. While close as young persons, once HA commenced living with JA, they never saw each other. In all cases, it was not a distance that was geographic, but rather it was one of relationship. 56 HA and JA each gave interviews to the Police. There was no attempt to do anything other than disclose all of the facts - including the congenital issues and the lack of medical care. Further, both HA and JA gave consistent evidence of the nature of the relationship between them. 57 The most probable explanation, especially with the benefit of hindsight, is that HA's love for, and infatuation, with JA, together with her genuine religious beliefs, her lack of strength and maturity, when coupled with JA's religious fervour, his dominating personality, his maturity and strength, made her wholly dependent on JA for everything. Her separation from her own family made this dependence complete. It was, even within this joint enterprise, JA that was the principal, the decision-maker and the more culpable of the two. He was 20 years her senior, had previously been married (of which HA was unaware) and has other children from that marriage. 58 Since JA's death, the contrast is astounding. Notwithstanding the circumstances, the level of physical and emotional support for her, from HA's family, has been remarkable. 59 She has restored her relationship with her mother and her sisters. She sees them or speaks to them daily. Her brother-in-law, who gave evidence, goes to her place to help out on weekends and there are members of her family assisting her almost daily. In the words of her mother: "she is back to her old self" - a reference to their relationship before HA met JA. 60 Each of her children (there are nine) is now healthy and is regularly subjected by HA to medical checks. 61 There is no doubt from the evidence of HA, both its content and her, sometimes tearful, demeanour, that her remorse, and sadness, is unlimited. Her remorse goes beyond the effect (i.e. the death of EA) but also includes her "stupidity" in refusing medical attention or not sufficiently standing up to her husband about this issue. 62 HA does not seem to suffer from psychological or psychiatric disorders or from abnormal personality functioning. She falls into the category of borderline intellectual disability, although, in the witness box, she was impressive, clear and obviously caring for her children. 63 There are no prior convictions and HA, otherwise, has an exemplary character. She is entitled to the leniency, described by the High Court in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465, reserved for first offenders. Plea and Assistance 64 In accordance with the legislative scheme, s 22 of the Crimes (Sentencing Procedure) Act 1999, HA is entitled to a discount for the plea of guilty. The plea was at an extremely early time and I fix a discount at a high level, just short of the maximum 25%. 65 Further, HA provided, through the interview and otherwise, significant assistance to the police and the investigation process. Because of the congenital disorders and the evidence of no obvious illness beyond those disorders, which illness was the cause of death, this would have been a difficult case for the Crown to prove beyond reasonable doubt, but for the assistance of HA. I allow a discount for assistance. 66 In all, I allow, for both the plea of guilty and assistance, a total discount of approximately 35%. There are no aggravating circumstances, except the obvious relationship of trust. Conclusion 67 Ms Manuell, who most ably represented HA, submitted that the appropriate sentence was non-custodial: a 5 year good behaviour bond. 68 The Crown, who most helpfully made submissions on all matters, submitted that such a sentence is not beyond range. The Crown, quite properly, described the circumstances of this case as most unusual and exceptional. 69 The benefit of such a sentence is that it would provide a longer period of supervision than an appropriate custodial sentence, particularly the non-parole period of such a sentence. 70 Somewhat bizarrely, the pre-sentence reports preclude Community Service and Periodic Detention, because of childcare responsibilities. I say bizarrely, because the alternative, full-time custody, would create greater problems. 71 Notwithstanding the exceptional nature of these circumstances, I am not convinced that this felonious taking of human life requires less than a custodial sentence imposed. Society must understand that parents, whatever their beliefs, have a particular trust relationship that must be discharged in a way that ensures the health and welfare of their children. 72 However, the exceptional nature and the confidence of the Court, consistent with all the expert evidence, that there will be no chance of re-offending, affects the manner in which it will be served. 73 The starting point, bearing in mind all objective and subjective factors, is a custodial sentence of 3 years' imprisonment. I apply the approximate 35% discount for plea and assistance, to derive a sentence of 2 years' imprisonment. Conviction and Sentence 74 HA, you are convicted of manslaughter in that, on 29 August 2003, at Minto in the State of New South Wales, you did unlawfully kill EA. 75 I sentence you to a term of imprisonment of 2 years, commencing 18 December 2008 and concluding 17 January 2010. 76 I order that the execution of the aforesaid sentence be wholly suspended for 2 years and HA be released from custody on condition that she enter into a good behaviour bond for 2 years. 77 Such bond shall include the following additional conditions:

(i) That HA undergo such counselling as advised by Probation and Parole Service; and

(ii) That HA comply with reasonable directions of officers of the Department of Community Service that may act to ensure that each child of HA is subject to regular medical attention.

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