R v Jagroop [2009] VSCA 46

Mr S Ward, Acting Solicitor for Public Prosecutions

1 The appellant, Amitesh Bali Jagroop, on 4 December 2007 pleaded guilty in the Supreme Court to one count of manslaughter. On 13 February 2008 he was sentenced to ten years' imprisonment with a non-parole period of seven years. A period of 613 days was declared as pre-sentence detention.

2 The maximum penalty for manslaughter is, pursuant to s 5 of the Crimes Act 1958, 20 years' imprisonment.

3 On 17 October 2008, Neave JA granted the appellant leave to appeal.

4 The appellant appeals against his sentence on the following grounds:

1. The learned sentencing judge erred in the exercise of his discretion in failing to give sufficient weight to the Appellant's plea of Guilty, the circumstances in which he pleaded Guilty and the consequences of his plea of Guilty.
2. The sentence of 10 years' imprisonment, with a non-parole period of 7 years, imposed by the learned sentencing judge was, in all the circumstances of the case, manifestly excessive.

5 The appellant was born in Fiji in September 1982 where he was raised. According to the appellant's account of his background, his family life with his parents and three siblings was stable and happy. He was a successful student who completed year 12 and enjoyed sport. Upon graduation he studied engineering technology at university in Fiji although he only completed one year of the course. In late 2003, at the age of 21, he migrated to Australia with his parents.

6 Upon arrival, the appellant first worked at a furniture factory. He then undertook one year of an advanced diploma at a TAFE and thereafter worked at a pizza restaurant, where his duties included driving and delivering pizzas.

7 The victim, Ms Singh, was the appellant's wife. She had been his friend during their school years in Fiji. After migrating to Australia, he returned to Fiji five times in the space of one year in order to attend sporting events, all the time continuing to see the victim. On 15 June 2005, they were married in Fiji and she arrived in Melbourne in February 2006. The victim did not reside with the appellant, who forged a visa statutory declaration for her, purportedly declared by his mother. The appellant did not disclose the marriage to his parents and continued to reside with them.

8 Within one month of the victim's arrival in Australia, problems developed in the relationship. The appellant was seen to use inappropriate physical force towards the victim, who applied for safe house accommodation and an intervention order.

9 The parties reconciled shortly thereafter and the appellant then arranged for the victim to reside with him at his parents' home, although he still did not acknowledge the marriage and represented the victim as a friend.

10 The sentencing judge, in paragraphs 4 to 8 of his reasons, set out the circumstances of the offending as follows:

The night of 9 June 2006 was her 19th birthday. Both you and she were working as employees of Pizza Hut, although at different outlets. You collected her from the Cranbourne shop. You returned to, and finished your shift at, the Dandenong shop. Around 11.30 p.m., the two of you went back to the home of your parents. Just after midnight, there was an argument over a mobile phone of yours which she was using. After words were exchanged, you snatched at the mobile phone, and it broke. Each was left holding a piece. She went to her bedroom. She picked up her handbag. She said that she was leaving. She left the house. You went after her. On the footpath outside a nearby house, the two of you talked. You appeased her. The two of you walked back towards your home. She then said she wanted to make a report to the police that you had been harassing her. That led to further argument. Again she walked off along the footpath heading north.

Again you followed her. You came up behind her. You pulled on her and said: "Let's go home." She stood her ground and said: "You can't pull me." You then pushed her with both hands. That caused her to fall onto the concrete footpath. You heard a noise of her head hitting the footpath. You saw that she was shaking. You got no response when you talked to her. You left her and went to your home. You went back to her. Blood was coming out of her mouth. You chose not to call for help. Instead, you dragged her to the other side of the road. On that side there is a slope. You dragged her down the slope. The slope leads down to a body of still water. You took her close to the water. You left her there.

When the police spoke to you first later that morning, you chose to deceive them. In your final account later that day to the police, you were to say a number of things. Those things cannot, by independent evidence, be shown to be correct, or not to be correct. I am unable to be satisfied beyond reasonable doubt that there are incorrect. Accordingly I sentence you on the basis that they are correct. One of the things you said in your final account was that you initially laid Nileshni on her back about 2 feet from the water. Another was that you noted that she was not breathing from her mouth, but that her stomach or lungs were pumping up and down slowly.

You later went back to where you had pushed her causing her to fall. You took from that place her shoes and handbag, and put them next to her. You went home and cleaned up your shoes, which had got muddy. You took the cleaning of the shoes to be a priority. You told your mother that Nileshni had left the home following an argument with you. You said nothing to your mother as to the pushing, the fall, the dragging to the water, or Nileshni's compromised condition. You went out with your mother purporting to look for Nileshni. The body of Nileshni was then found. She was not close to, but face down in the water and substantially submerged.

Nileshni Singh died from upper airway obstruction in association with head injury. From the time you heard the noise of her head hitting the ground after you pushed her, it was obvious that she was in need of medical attention. You should have summoned such attention. You chose not to do so. That choice was grossly negligent. Instead of choosing to get help, you grossly increased the risk of causing an even more serious result. That was because, while aware of her being still unconscious, you dragged her to a position of great danger. You then continued to choose not to seek medical attention. Indeed, you aggravated the situation in how you deceived your mother as to what had happened. In my assessment, yours is a particularly serious case of manslaughter, although far from the top end of the scale.

11 Before us, a photograph of the crime scene was handed up. It depicted the site where the victim fell, which was about 16 metres from the waterside where the her body was found (after she was dragged there by the appellant). The sentencing judge's description of the offending was based on the appellant's record of interview with police, in which he gave a full account of events.

Victim impact statements, reports and references

12 The sentencing judge referred to the victim impact statements of the victim's mother, father and two sisters, observing that they 'made for emotionally powerful reading'.

13 His Honour referred to a number of character references for the appellant, principally by relations and family acquaintances in Fiji.

(the) references were unanimous in their description of the Appellant. He was honest, trustworthy, good-natured and friendly. He was kind, helpful and considerate. He was said to be pleasant, cheerful, sincere and respectful. He was also described as hard-working, reliable and responsible.

15 The sentencing judge also referred to the report of Dr Kennedy, a clinical and forensic psychologist, dated 20 December 2007, which set out the appellant's account of his background, the offending, and his remorse.

16 In relation to 'insight and remorse issues', Dr Kennedy stated that the appellant cried extensively during his interview. He was aware that his wife's death was his fault. At another point, the appellant acknowledged to Dr Kennedy 'I could have given her medical help' and that 'I left her there...it was my fault'.

17 Dr Kennedy concluded that the appellant had had a positive upbringing in Fiji and a supportive, well-functioning family, which was 'rather conservative and religious'. The appellant had no psychological or personality difficulties indicative of predisposing factors for violence. His 'mixed anxiety and depressed mood' were 'responsive' and 'appropriate' to the situation associated with the effect of the traumatic death and 'his remorse associated with his actions'.

In my opinion, based on current evaluation, and in particular the evaluation of the personality characteristics, the likelihood of recidivism in this case is remote. [The appellant] is [a] man with sound character background, good family support, sound intellectual capacities and plans to contribute effectively to the community upon his release.

19 Dr Kennedy recited the appellant's 'self -report' of the offending, in which he stated that he had an argument with the victim which 'was an unusual occurrence' and that the victim hit the appellant first and he pushed her away 'so that she did not hurt him further', after which she fell over and hit her head.

20 The appellant informed Dr Kennedy that he left the victim on the grass and returned to find her gone, following which he searched for her with his family, and located her, after which help was called.

21 The appellant also informed Dr Kennedy that his family supported his marriage and that the victim had obtained a visa and lived with him and his parents.

22 As the sentencing judge observed, it was clear that the appellant failed to place before Dr Kennedy much material information. He suppressed details of the forged visa reference, the non-disclosure of the marriage, the fact that there had been physical force and that an intervention order was sought against him. The appellant did not reveal the circumstances of the victim's death, including that he intercepted her attempting to leave the house, dragged her to the waterside while she was unconscious and bleeding from the mouth and left her for a prolonged period, deceiving the police and others by suppressing his knowledge of the victim's whereabouts and serious injuries.

23 The sentencing judge observed that Dr Kennedy's opinions would have carried more weight had he been appropriately informed. The same limitation applied to the character references.

24 The sentencing judge recognised the appellant's guilty plea, relative youth, his display of some remorse and his acceptance of responsibility for the victim's death. He acknowledged that the appellant would serve his sentence in protective custody.

25 Notwithstanding those mitigating factors, his Honour observed that the victim was obviously in need of urgent medical attention but the appellant deliberately chose not to summon assistance for a prolonged period. Instead, he dragged her to a position of greater danger while she was still unconscious. He then allowed even more time to elapse, deceiving his mother and others as to what had happened. His Honour recognised that general deterrence and denunciation of the appellant's 'seriously morally blameworthy conduct' were significant sentencing objectives.

26 The appellant submitted that the trial judge erred in failing to accord adequate weight to the appellant's early guilty plea and the fact that he had demonstrated some remorse.

27 Although the sentencing judge expressly noted the guilty plea and the fact that 'some remorse' had been shown and some responsibility accepted, in my view the sentence imposed on the appellant was (as discussed below) manifestly excessive and reflected inadequate weight to those factors.

29 The appellant submitted that the sentence was manifestly excessive in view of his previous good character, favourable references, the fact that it was a first offence, that he was unlikely to re-offend, was serving the term of imprisonment in protective custody and had a caring and supportive family.

30 I am not persuaded that the sentencing judge failed to accord due weight to the appellant's previous good character, his references or the content of Dr Kennedy's report. The effect of Dr Kennedy's report was vitiated by the appellant's total want of frankness as to many material circumstances. Further, although the significance of previous good character in a case of manslaughter by negligence may be debatable, the appellant, while he had no prior convictions, did not demonstrate good character. He had participated in a forgery, deceived his parents and had, almost from the date of her arrival, used inappropriate force toward his wife, causing her to seek refuge in a 'safe house' and obtain an intervention order. His record of interview indicates that he argued with the victim when she attempted to leave the house, threatening to report him to the police. In the context of the offending, he again deceived his mother and the police. Nevertheless, the sentence imposed on the appellant reflects inadequate weight on the other mitigating factors upon which he relied.

31 More fundamentally, before us, counsel for the appellant submitted that the sentence passed on the appellant was outside the appropriate range for manslaughter by negligence. The appellant did not intend to kill or cause serious injury to the victim but had panicked, and there was no evidence of a vicious or severe assault on the victim. Counsel submitted that cases in the category of manslaughter by negligence involved less culpability than cases where there was intention to kill or cause serious injury. They should therefore attract a correspondingly lower sentence.

32 Counsel referred, in that context, to R v Vandergulik, ('Vandergulik') in which Kellam J re-stated the traditional recognition that:

... manslaughter by criminal negligence does not involve premeditation or any intention to cause injury and thus does not carry the same culpability in the eyes of the law as those crimes of manslaughter which are premeditated and/or which have as an element an intention to cause serious injury.[1]

33 Kellam J nevertheless rejected the proposition that manslaughter by criminal negligence invariably ranked lower in the sentencing hierarchy. His Honour stated:

Your counsel submits further that crimes of criminal negligence can be seen as being of lesser significance on the sentencing hierarchy than offences of involuntary manslaughter by unlawful and dangerous act. Whilst that might be so in some circumstances, it is not a fixed rule. It is not at all difficult to imagine circumstances whereby an unlawful and dangerous act which is not of great heinousness and is momentary nevertheless causes death.[2]

34 As counsel for the Crown submitted, the statutory sentencing regime for manslaughter does not discriminate between manslaughter by negligence and manslaughter involving an intention to kill or cause serious injury. Rather, it is predicated upon a recognition that the commission of the offence may involve an infinite variety of circumstances.

35 In R v Papazisis & Anor, the Court of Criminal Appeal stated:

... there is not and never has been anything like a single tariff for the offence of manslaughter although within distinct categories of manslaughter varying patterns of factual circumstances may be identified. It is in fact notorious that manslaughter is a crime which attracts a wide range of sentences, perhaps a wider range than any other crime. The reason for this is simply that the circumstances in which the crime is committed can vary infinitely.[3]

The search for identical cases by which to evaluate the appropriate range for any particular instance of manslaughter is likely to prove fruitless. It is nevertheless necessary to have regard to relevant statistics, if any, and to authorities dealing with comparable instances of manslaughter by negligence.

36 Counsel for the appellant referred to the sentencing snapshot for 2001-2 to 2005-6. It indicated that for that period, in 76 cases a lower sentence was imposed for manslaughter than that in the present case, and in five cases, a higher sentence was imposed. [4]

37 As White J (with whom Nyland J agreed, Kelly J dissenting) stated in R v Johnston[5], it may be difficult to draw the inference that a particular sentence for manslaughter is severe when compared with other sentences, because the range of culpability involved in manslaughter is wide and (as was acknowledged in R v Lavender[6]) of all serious offences, manslaughter attracts perhaps the widest range of sentences. White J observed that sentencing statistics were thus of little utility in that context.

38 In the present case, the statistics do not differentiate between manslaughter by negligence and manslaughter involving an intention to kill or cause serious injury. They do not cast light on the circumstances and basis on which individual sentences were imposed. Given the acknowledged potential for wide variation in circumstances, the statistics are of limited assistance. They demonstrate, however, that the appellant's sentence is higher than that in the vast majority of manslaughter cases.

39 Manslaughter by negligence is, it would seem, a relatively unusual instance of the crime. Some recent examples involve the manslaughter of an infant by a parent and have few similarities to this case.

40 We were referred to R v Richards & Gregory,[7] in which a woman with a sub-normal intellect and a 'truly pathetic' background of childhood sexual and physical abuse, violence and emotional deprivation was convicted of the manslaughter by criminal negligence of her 20 month old child. She shook the child vigorously, causing bleeding in the brain and retinal haemorrhaging. Shortly before the offending occurred, the offender had sought professional help, admitting that she could not cope and that she feared harming her children, but no support was forthcoming. She was initially sentenced to a term of imprisonment for seven years with a four year non-parole period, which was reduced on appeal to five years' imprisonment with a non-parole period of three years and six months.

41 Winneke P (Brooking and Tadgell JJA agreeing) stated:

The crime ... was the crime of manslaughter by negligence. That crime assumes that the offender in doing what she did, had no intention of causing death or serious injury to her child. Rather, the crime is one of causing death by actions which fall so short of the standard of care which a reasonable person would have exercised in the circumstances and which involved such a high risk of death or serious injury that the conduct merits criminal punishment.[8]

His Honour nevertheless recognised that by reason of the offender's sub-normal intellect and lifetime of deprivation and abuse, 'her deficiencies precluded her from appreciating the significance of her actions'.[9] Her culpability was therefore significantly reduced.

42 The appellant in the present case had no mental abnormalities or disadvantages comparable to those of the offender in R v Richards and Gregory, which is therefore of limited assistance in evaluating the severity of his sentence.

43 Another group of cases of manslaughter by negligence involves the infliction of injuries or a failure to seek medical attention in the course of spiritual or religious rituals aimed at exorcism or the attainment of spiritual purity. In R v Pesnak,[10] the two offenders failed to seek medical assistance for a fellow believer whose condition visibly deteriorated in the course of a voluntary but very drastic fast, which resulted in her death. They were found guilty of manslaughter by negligence. The offenders were aged in their sixties, were previously of exemplary character and were genuinely remorseful, although they did not enter an early guilty plea. One offender's culpability was less than that of the other. The Queensland Court of Appeal reduced their sentences to four years' imprisonment with a non-parole period of 18 months and two years' imprisonment with a nine month non-parole period respectively.[11]

44 McMurdo P, Davies JA and Mackenzie J cited the comments of Thomas J (as he then was) in R v Streatfield that:

The absence of intention to harm must be a very significant factor, and is probably the primary factor in assessing the quality of the offender's act that amounts to manslaughter. [12]

These comments were made by his Honour in the context of reviewing sentences imposed in cases of domestic killing. Whilst intention is relevant to sentence, a major factor in criminal negligence manslaughter cases is the extent of the departure from reasonable community standards which constitutes the criminal negligence.[13]

45 In R v Vollmer and Ors,[14] a case in which the victim died in the course of a well-intentioned but physically damaging and ultimately fatal exorcism ritual, two participants were found guilty of manslaughter and false imprisonment. They were sentenced to 18 months' and two years' imprisonment respectively.

46 The religious ritual cases are significantly different from the present case and do not provide useful guidance on the appropriate range for sentencing.

47 In contrast, Vandergulik provides a recent and more instructive illustration of sentencing for manslaughter by negligence for present purposes. In Vandergulik, the offender's husband died when (by her account), she struck him on the head with a walking stick after he had assaulted her. The offender then (with the assistance of an unidentified party) took her husband, who was still alive, to his vehicle, which was set alight in a staged motor vehicle accident.

48 The offender claimed that she had acted in panic. She stated that she believed that her husband was already dead when he was taken to the vehicle. The sentencing judge expressly stated that he believed that assertion. His Honour nevertheless recognised that:

... had you obtained medical treatment for [your husband], rather than disposing of him as you did, there is at least a possibility that he would still be alive.[15]

Instead, the offender did not, despite her nursing experience, determine whether the victim was alive. His Honour stated:

Your criminal negligence reveals a callous indifference on your behalf to fulfil the clear duty of care that you had to your husband, which was to ascertain whether he was alive and if so to arrange medical treatment for him. Furthermore, your actions following the infliction of the initial injury to your husband bespeak considerable thought and presence of mind.

In my view, this case is a most serious example of the crime of manslaughter by criminal negligence.[16]

His Honour sentenced the offender to nine years' imprisonment with a six year non-parole period.

49 In Vandergulik, the offender, who was originally charged with murder, pleaded guilty to manslaughter, albeit at a very late stage. She was aged 61 at the time of sentence and suffered from medical problems which would render her imprisonment somewhat more burdensome. His Honour found that the offender lacked remorse.

50 While the factual details of the manslaughter by criminal negligence in Vandergulik differ greatly from those of the present case, some fundamental circumstances are broadly comparable. In each case, the offender, having initially inflicted a head injury on a spouse during an argument, panicked and, in breach of the dictates of common humanity and duty to the spouse, took calculated steps to cover up the injury and callously failed to summon the necessary medical assistance which might have ensured the victim's survival.

51 Although the circumstances of Vandergulik are particularly disturbing, given that the offender believed her husband to be dead before placing him in the car, the present appellant's culpability and callousness were, in one sense, greater, as (although aware of his wife's perilous but still living state), he persisted for a prolonged period in failing to call medical assistance which may have saved her life and, by his deceitful conduct, prevented anyone else from doing so. In contrast, it must be accepted that in Vandergulik, the offender almost immediately believed her spouse to be beyond medical assistance, although that belief was mistaken and not reasonably based. Other aspects of the offending in Vandergulik, such as the incineration and calculated mistreatment of the victim, bespeak greater culpability. Significant mitigating factors present in this case, such as the remorse and youthfulness of the offender, were absent.

52 In R v Babsek; Ex parte Attorney-General of Queensland[17], the Queensland Court of Appeal allowed a Crown appeal against a sentence of nine years' imprisonment with a three year non-parole period imposed for manslaughter. It re-sentenced the offender to a period of ten years' imprisonment with a non-parole period of 50% of the sentence.

53 The respondent shot and killed her former de facto husband with a rifle when he confirmed to her that their relationship was over. She then took an overdose of sleeping tablets, but recovered from their effects. At the respondent's trial for murder, the defence was that she was guilty of manslaughter, but did not intend to kill or do grievous bodily harm to the deceased. The jury returned a verdict 'consistent with them concluding that the respondent pulled the trigger and caused [the victim's] death without any intention to kill or do grievous bodily harm.'[18]

54 The sentencing judge concluded that the parties' relationship had been 'marked on occasion by disputation, altercation and some physical violence.' The respondent had no prior convictions and the Court of Appeal found that the sentencing judge was entitled to conclude that she was genuinely remorseful.

55 Although the Court of Appeal treated the case as one of manslaughter by negligence, it nevertheless characterised it 'as a very serious example of manslaughter.' McMurdo P, Pincus and Thomas JJA, in joint judgment, stated:

General deterrence is however always a very important factor in such cases and a substantial term of imprisonment must generally be imposed upon those who unlawfully kill a former partner who wishes to leave the relationship. ... All members of the community must understand that physical violence is not an option when relationships end.[19]

As Thomas JA observed in R v Haack:

Courts are rightly concerned at violence by possessive males who cannot accept rejection and who behave violently towards former partners in such situations. Deterrence is needed against overreaction by females in such situations just as it is for males.[20]

56 The factual circumstances of R v Babsek differ significantly from those of the present case. In Babsek, the offender armed herself with a loaded rifle and arranged a meeting with the victim. The Court of Appeal in my view correctly emphasised that:

Deterrence of those who choose to damage their partner rather than let him or her escape a relationship is an important sentencing objective.[21]

57 In the present case, the appellant's conduct towards his injured and vulnerable young wife was, as the respondent submitted, extremely callous. It is not irrelevant that the crime had its genesis in an attempt to maintain control over his wife and to prevent her departure from the house (apparently in order to complain of his conduct to the police). The appellant followed her, pulled her, then pushed her with both hands, causing her to fall to the ground and hit her head. The appellant's subsequent conduct prevented vital medical assistance from reaching his critically injured wife, who was, to his knowledge, unconscious and bleeding. He returned to the waterside from the incident site with the victim's shoes and handbag. He then left her again. He returned to the house from the waterside and washed. The cover up involved an element of calculation and destroyed any possibility that the victim would receive the assistance she desperately required.

58 As the authorities establish, no inflexible rule governs the approach to sentencing for the different subcategories of manslaughter, but manslaughter by negligence generally involves less culpability. In the present case, the appellant did

not intend to kill or seriously injure the victim, but his conduct constituted a particularly gross departure from reasonable community standards. The sentencing judge correctly characterised it as a particularly serious case of manslaughter. His Honour also correctly emphasised the significant need for denunciation and general deterrence. The appellant's crime warranted stern punishment. The two relatively recent cases of manslaughter by negligence discussed above (notwithstanding the limitations of comparative analysis in this context) nevertheless make clear that the sentence imposed on the appellant was, given his relative culpability and the mitigating factors, manifestly excessive.

60 In my opinion, the appeal should be allowed. The sentence passed on the appellant below should be set aside and in lieu thereof, he should be re-sentenced to a term of eight years' imprisonment with a minimum non-parole period of five years and six months.

61 I agree, for the reasons given by Dodds-Streeton JA, that this appeal should be allowed, and the appellant re-sentenced as her Honour proposes. I wish, however, to add a few comments of my own.

62 The starting point, in my view, must be an assessment of the objective gravity of this offence. The sentencing judge described this as a 'particularly serious case of manslaughter, although far from the top end of the scale'. I respectfully agree with that characterisation. The appellant behaved disgracefully, and with callous indifference towards his wife, at a time when she was plainly in dire need of medical attention. His conduct, in that regard, was lamentable. It fell far short of what would be regarded as reasonable community standards, and amounted to a clear case of criminal negligence.

63 It is well established that although manslaughter is one of the more serious crimes known to the law, the circumstances of its commission vary greatly. This makes it impossible to accept any notion of a 'tariff' for this offence.[22] Manslaughter is a crime that attracts a wide range of sentences, which can vary from lengthy terms of imprisonment to non-custodial dispositions.

64 Nonetheless, there are some principles that seem to emerge from the cases. In the first place, voluntary manslaughter is generally regarded as more culpable than involuntary manslaughter. In cases of voluntary manslaughter, the offender intends to kill or cause grievous bodily harm, not so in cases of involuntary manslaughter.

65 Manslaughter by unlawful and dangerous act is often regarded as one step down from manslaughter by provocation. Still further down the scale are those relatively few cases of manslaughter by criminal negligence that have been reported. The reason is plain. The moral culpability of an offender who has been convicted of manslaughter by criminal negligence is likely to be lower than that of an offender who has killed someone by an unlawful and dangerous act. There is, after all, in most cases of criminal negligence, no intent on the part of the offender to cause any harm whatever to the victim.[23]

66 The absence of intention to harm is, in my view, a significant factor in assessing the quality of an offender's actions. The same point was made in R v Streatfield,[24] where the offender was convicted, after a trial, of the manslaughter of his wife through criminal negligence. He had discharged a gun while pointing it at her, mistakenly believing it to be unloaded. Thomas J, as his Honour then was, said:

In the present case stupidity is revealed rather than wickedness. Malice is nowhere to be found. In this respect the case must be less seriously regarded than the ordinary domestic killings where there is a distinct intention to harm, albeit a fleeting one which may have been provoked by the injured party.[25]

67 That is not to say that it is an inflexible rule that sentences for manslaughter by criminal negligence should be lower than those for other forms of manslaughter. Everything must turn upon the particular circumstances of the case. Some cases, of which the present is an example, have aggravating factors that make it appropriate to impose more significant punishment.

68 A search of the literature indicates that sentences for manslaughter by criminal negligence, in Victoria, have generally been more lenient than those other forms of manslaughter. That has long been the case.[26]

69 As Dodds-Streeton JA has noted, the same pattern is apparent in other States. In R v Pesnak,[27] a husband and wife failed to seek medical attention for a woman who had entrusted herself to their care. The woman died, and they were convicted of manslaughter by criminal negligence. Sentences of six years and three years' imprisonment were reduced on appeal to four years and two years respectively.[28]

70 When one has regard not merely to the absence of any intention on the part of the appellant to cause serious injury to his wife, but also the mitigating factors present in this case, it is difficult to see how the sentencing judge arrived at a sentence of 10 years' imprisonment, as he did. Appalling as the appellant's conduct was, it must be accepted that he acted out of a sense of panic and stupidity, and not in any overtly malicious way.

71 The appellant pleaded guilty. As his Honour found, he displayed some remorse and an acceptance of responsibility for what he had done. That entitled him to a significant reduction in the sentence that might otherwise have been imposed. In addition, he was able to call in aid his comparative youth, lack of prior convictions, and the fact that he would be likely to serve a good part, if not all, of the remainder of his sentence in protection. Finally, it was at least implicit in his Honour's reasons for sentence that specific deterrence was of little significance in the particular circumstances of this case.

72 The sentencing judge was correct to speak of the need to denounce the appellant's conduct, which he aptly described as 'seriously morally blameworthy'.[29] His Honour was also correct to have regard to the need for general deterrence. Plainly, the appellant had to receive a lengthy prison sentence, and one significantly greater than might be imposed in more typical cases of manslaughter by criminal negligence.

73 At the same time, when one has regard to the various mitigating factors that were present in this case, it is difficult to see them reflected in the sentence that his Honour imposed. That sentence was, in my view, manifestly excessive.

74 For these reasons, I agree that the appeal should be allowed.

75 I too agree that the appeal should be allowed and the appellant re-sentenced as Dodds-Streeton JA proposes, for the reasons she gives and for the additional reasons provided by Weinberg JA.

[1] [2009] VSC 3, [22].

[3] (1991) 51 A Crim R 242, 245.

[4] Sentencing Advisory Council, Snapshot No 28. Sentencing Trends for Manslaughter in the Higher Courts of Victoria, 2001-02 to 2005-06, August 2007.

[5] [2007] SASC 300; (2007) 173 A Crim R 540, 550; [2007] SASC 300.

[6] [2005] HCA 37; (2005) 222 CLR 67, 77 (Gleeson CJ, McHugh, Gummow and Hayne JJ); [2005] HCA 37. Also see R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1, 27 (Spigelman CJ), 35-44 (Hall J); [2005] NSWCCA 377; R v Blacklidge (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Grove and Ireland JJ, 12 December 1995).

[7] [1998] 2 VR 1.

[10] (2000) 112 A Crim R 410; [2000] QCA 245.

[11] The maximum penalty for manslaughter in Queensland is imprisonment for life, s 310 Criminal Code Act 1899 (Qld).

[12] (1991) 53 A Crim R 320, 326-327.

[13] R v Pesnak [2000] QCA 245; (2000) 112 A Crim R 410, 415.

[14] [1996] VicRp 9; [1996] 1 VR 95.

[15] [2009] VSC 3, [20].

[17] (1999) 108 A Crim R 141; [1999] QCA 364.

[20] [1999] QCA 076, 8.

[21] (1999) 108 A Crim R 141, 144.

[22] R v Williscroft [1975] VicRp 27; [1975] VR 292, 299 and R v Papazisis & Bird (1991) 51 A Crim R 242, 245.

[23] See generally R Fox & A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) [12.214].

[24] (1991) 53 A Crim R 320.

[26] See generally R Carter, Australian Sentencing Digest (1985) 268-275 and particularly 271 and 275. Carter refers to R v Redman (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Young CJ, Starke and Crockett JJ, 14 December 1977), a case of criminal negligence where a sentence of five years with a three-year minimum was reduced to three years with a 12-month minimum. He also draws attention to R v Taylor (1983) 9 A Crim R 358, in which a sentence of 18 months with a non-parole period of six months was permitted to stand in a case where a mother had caused her six-year-old son's death by overdosing him on a liquid sleeping medication.

[27] [2000] QCA 245; (2000) 112 A Crim R 410.

[28] Sentences of similar relatively short duration were imposed in R v Vollmer [1996] VicRp 9; [1996] 1 VR 95, and in R v Clissett (Unreported, Supreme Court of Victoria, Court of Appeal, Phillips CJ, Brooking and Kenny JJA, 15 October 1997).

[29] When I speak of the appellant's 'seriously morally blameworthy' conduct I mean, of course, his conduct on the night that he caused the death of his wife. The background to that conduct, including his various deceptions, and what seems to have been a history of mistreatment of his wife, can only be given limited weight, and considered only in regard to his prospects of rehabilitation.