R v Reid [2009] VSC 326

Supreme Court of Victoria|2009-08-10|Before: WHELAN J

CRIMINAL LAW - Sentence - Manslaughter by criminal negligence and recklessly causing injury - Victim was domestic partner of offender - Victim was hit on the head with a coffee cup by the offender - Offender omitted to obtain assistance and abandoned victim, who later died - Total effective sentence of five years' imprisonment - Non-parole period of three years.

1 David John Reid, on 17 June 2009 a jury found you guilty of one count of manslaughter and one count of recklessly causing injury, in relation to the death of your de facto wife, Nola Ritter, on 21 May 2006.

2 On 15 July 2009 I heard a plea in mitigation on your behalf.

3 The maximum penalty for manslaughter is 20 years' imprisonment. The maximum penalty for recklessly causing injury is five years' imprisonment.

4 The circumstances of your offending can be summarised as follows.[1]

5 You and Ms Ritter spent much of 20 May 2006 drinking cask wine together from ceramic coffee mugs. At some stage that evening, you argued over who would drink the last cup of wine. You swung your mug at Ms Ritter, causing a cut on the back of her head measuring 40 by 12 millimetres and penetrating the full thickness of the skin through to the muscle. The evidence of the forensic pathologist, Dr Woodford, which I accept, was that significant force would have been necessary to cause this wound. The force of the blow caused the cup handle to break. By finding you guilty of recklessly causing injury, the jury must have been satisfied that you knew your act would probably injure the deceased.

6 At some point that night you also gave Ms Ritter what you referred to in your records of interview as a 'backhander', cutting her lip.

7 You both went to bed shortly after the coffee mug incident. You woke at about 7 am to find the pillows and sheets soaked with blood. Ms Ritter moved out of the bed and went to sleep on the bedroom floor. You got up intending to go back to sleep in the lounge room. You saw blood all over the kitchen and bathroom floor. At some point, you made some attempts to clean up the blood.

8 In your records of interview you maintained that you repeatedly offered to take Ms Ritter to a doctor or to call an ambulance. I will return to that. You did not at any time attempt to bandage the wound or staunch the flow of blood yourself.

9 At about 9 or 10 am you left the deceased and drove to your brother, Ian Davidson's house, which he shared with his partner, Sheryl Dyke. You and Mr Davidson spent the day watching football on the television and drinking beer. At no stage did you mention Ms Ritter's condition. You went home at about 5.30 or 6 pm. You found Ms Ritter lying dead on the floor. You drove back to your brother's house, distraught. Ms Dyke called an ambulance, and the three of you returned to your house.

10 According to Dr Woodford, the cause of Ms Ritter's death was the interaction of the haemorrhage from the head wound and pre-existing conditions from which she suffered, being an enlarged heart and alcohol-related liver disease. Dr Woodford's evidence was that medical intervention would have increased her chances of survival.

11 In finding you guilty of criminal negligence manslaughter, the jury must have been satisfied that, having caused Ms Ritter's initial injury recklessly with the coffee mug, you neglected to take any step to either staunch the blood flow or to obtain medical or other intervention, and that this involved such a great falling short of the standard of care that a reasonable person would have exercised, and involved such a high risk of causing death or really serious injury, that it deserves to be criminally punished.

12 It is important to emphasise that the conduct which constitutes the manslaughter is not the coffee cup blow itself; rather it is your lack of response to the position in which Ms Ritter was placed by that blow.

13 The offers of assistance are important. In your records of interview you stated that you repeatedly offered to obtain medical assistance but that the deceased rejected your offers. I accept that offers were made, but those offers have to be seen in the following context.

14 First, the scene which you observed when you rose on the fateful morning was horrific. The bed clothes were drenched in blood. There were literally pools of blood throughout the house. Passive acceptance of the deceased's rejection of your offers seems to me to have been an extraordinary reaction to that situation.

15 Secondly, the terms in which you yourself described some of your conversations with the deceased do not reflect genuine concern. In this respect I refer to the following passages in your records of interview:

"I think she started bleedin' so she went and got a flannel and patted it dry, and it wouldn't stop bleedin' because - I said, 'You're - you're makin' a mess all over the floor'...And I just said, 'Look, come on, get in the car or I'll ring an ambulance. Take your pick'."

"I got out of bed because it was too - our pillows were soaked. So I said, 'Out of bed. Can't sleep in this mess'."

16 Finally, notwithstanding the extraordinary situation existing in the house that morning, you left her, and spent the whole day drinking beer and watching football at your brother's, without ever checking back on her and without even mentioning to your brother or his partner what had happened.

17 I do accept that when you discovered the tragic conclusion to these events after you arrived home from your brother's, you were genuinely distraught.

19 You are 51 years old, having been born in Melbourne in 1958. You were raised in a loving and caring family, though both of your parents were heavy drinkers. You adopted that habit at an early age. You left school at the age of 15 and subsequently held a succession of manual labour jobs. At one point you worked for Jayco Caravans for a period of eight years. In 1991 you were placed on a disability pension when, as your counsel explained, 'alcohol got the better' of you.

20 You have an adult daughter from a former relationship with whom you are no longer in contact.

21 You originally moved in with Ms Ritter as a boarder, but a romantic relationship developed, and lasted for five years until her death.

22 You have since formed a new relationship with a person named Leanne Sullivan. This relationship has existed since April 2007.

23 You have 22 prior convictions from 8 court appearances between 1976 and 2001. Many of these are dishonesty offences. Two are drink driving offences. Of most relevance to my current task are an unlawful assault in 1976, and offences of possessing an offensive weapon and resisting arrest in 1998. Your counsel told me that the offence in 1976 related to a dispute with a taxi driver, and that the offences in 1998 related to an argument in a caravan park where the offensive weapon was a beer bottle. You have never before been sentenced to a term of imprisonment. Counsel for the prosecution conceded that your prior convictions are, for present purposes, minor.

24 Your counsel tendered a number of character references on your plea. They were written by your new partner, Leanne Sullivan; her father, Keith Wright; her sister, Sharon Oppedisano; your sister, Gail Rosse; and your friends, Gavan Fraser and William Butchers. The references describe you as a caring man who has struggled to overcome alcoholism. It seems that you have reduced your alcohol consumption in recent times. The references describe your distress regarding Ms Ritter's death.

25 Your counsel submitted that your offending only narrowly falls into the gross negligence category. I accept that, in terms of culpability, your offending is at the lower end of the negligent manslaughter spectrum.[2] Most notably, your negligence was by omission and your offending conduct did not involve the callousness and deliberate cover-up present in some other criminal negligence cases.

26 Further, although there is no inflexible rule governing the approach to sentencing for the different categories of manslaughter, manslaughter by negligence generally involves less culpability than other forms of manslaughter.[3] This is the situation in your case.

27 Manslaughter is, however, a serious offence. You have, by your criminal neglect, caused a death. You had a responsibility to care for Ms Ritter, and yet you chose to abandon her in her moment of need.

28 At your plea, counsel for the prosecution tendered victim impact statements by Nola Ritter's daughter, Lindy Ritter (with an attachment by her son Anton); and Lindy Ritter's partner, Anton Gogerly. I have taken these statements into account to the extent allowed by the Sentencing Act 1991.

29 Nola Ritter's death has clearly had a devastating effect on her family. Lindy Ritter describes her as a loving mother and grandmother. She says: "I am not as light hearted as before. This sadness and despair for Mum is always in the background.'

30 At your plea your counsel tendered a report by the clinical neurologist, Dr Ian Stuart, dated 14 April 2009 and a report by the psychologist, Mr Jeffrey Cummins, dated 10 July 2009.

31 According to Dr Stuart, testing revealed a marked impairment in your executive skills (which he says is the ability to sum up a situation and take appropriate action) and severe impairment of memory for verbal information. These deficits are a product of your alcohol abuse.

32 Mr Cummins assessed you as being severely depressed.

33 Both reports note that you have suffered from chronic alcoholism for many years.

34 I accept that imprisonment will be a greater burden on you than on others by reason of your state of health. I take that into account.

35 I also accept that specific and general deterrence, while still relevant to sentencing here, ought be moderated by reason of your ill health at the time of your offending.[4] In this regard, I refer in particular to your depression, and to your marked impairment of executive skills due to your alcoholism.

36 Denunciation, just punishment, and protection of the community remain relevant sentencing factors.

37 Your counsel submitted that I should mitigate your sentence by virtue of the delay between the commission of these offences (in May 2006) and the date you were charged (in September 2007), and the fact that you have committed no further offences. I do take these matters into account in your favour.

38 Your counsel submitted that your not guilty plea should not be taken to indicate a lack of remorse, and that in fact you are very remorseful for your offending. He referred to two suicide attempts and relied upon a suicide letter which you wrote as evidence of remorse. Mr Cummins is of the opinion that you are genuinely remorseful for your behaviour. You were co-operative when interviewed by police and you made frank admissions. I accept that you are genuinely remorseful for what you have done.

39 Your counsel submitted that you are unlikely to re-offend. At least some of your past offending would seem to be linked with your alcoholism. These offences were certainly a product of your alcohol abuse. You have the support of your family and your partner's family. Your future depends upon your capacity to cease alcohol abuse. I cannot be confident that you will succeed in that.

40 At your plea the prosecutor submitted that an appropriate head sentence would be between four and five years, with a non-parole period of between two and three years. Your counsel, on the other hand, submitted that a suspended sentence would be appropriate in this case, perhaps in combination with a community based order.

41 You have been in custody since 17 June 2009, and accordingly I declare that the period of 55 days is to be reckoned as already served.

42 On the count of manslaughter, I sentence you to five years' imprisonment. On the count of recklessly causing injury, I sentence you to one month's imprisonment. The sentences on the two counts are to run concurrently with each other, producing a total effective sentence of five years' imprisonment. I fix a non-parole period of three years.

[1] I am bound to sentence the accused on a factual basis which is consistent with the jury's verdict. Otherwise, in relation to matters adverse to the accused, I must be satisfied of those matters beyond reasonable doubt, but I may take into account matters in his favour which are established on the balance of probabilities: R v Storey [1998] 1 VR 395 at 369; R v Olbrich (1999) 1999 CLR 270; R v Cheung [2001] HCA 67; (2001) 209 CLR 1; and R v Ramage [2004] VSC 508 at [25].

[2] Compared to circumstances such as those in R v Jagroop [2009] VSCA 46 and R v Vandergulik [2009] VSC 3.

[3] As recognised recently by the Court of Appeal in R v Jagroop [2009] VSCA 46 at [58] and [64].

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