R v Thomas Sam; R v Manju Sam

R v Thomas Sam; R v Manju Sam - [2009] NSWSC 1003 - NSWSC 2009 case summary — Zoe

[13]

The Crime of Manslaughter by Criminal Negligence 3 In approaching the imposition of sentence, it is necessary to have regard to the nature of the crime of which each Offender was convicted by the jury. 4 The elements of the crime of manslaughter by criminal negligence were set out in my written directions to the jury: R v Sam (No. 17) [2009] NSWSC 803. The offence involves application of an objective test, based on the standard of a reasonable hypothetical person: R v Sam (No. 17) at [9]. 5 In the circumstances of this case, manslaughter by criminal negligence involved an omission on the part of each Offender to obtain appropriate medical treatment for Gloria in the period 27 April 2002 to 5 May 2002, without the requirement to establish an intention to cause death or really serious bodily harm, but in circumstances which involved such a great falling short of the standard of care which a reasonable person would have exercised, and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment: Nydam v R [1977] VR 430 at 445; The Queen v Lavender (2005) 222 CLR 67 at 75 [17], 87-88 [60], 90 [72]. 6 The offence of manslaughter by criminal negligence can be established even if each Offender had not realised that he or she was exposing Gloria to the risk of injury which would have been foreseen by a reasonable person in the position of the Offender. The test is whether a reasonable person, in the position of each Offender, would have realised that the risk existed. 7 There was no issue at the trial that each Offender owed a duty of care, in relation to the wellbeing of Gloria as the father and mother respectively of an infant child - the "reasonable parent" case. There was an issue as to whether any duty of care was owed by Thomas Sam to Gloria as part of the Crown's "reasonable homeopath" case, which related to him only: R v Sam (No. 17) at [6], Annexure "B". I will return to this issue later in these reasons. 8 The real issue in the trial (with respect to the "reasonable parent" case) was:

[21]

The Period July 2001 to December 2001 18 The Offenders took Gloria to the Earlwood Early Childhood Centre on four occasions between 25 July 2001 and 4 October 2001, with Gloria's growth and development being assessed as normal. Photographs of Gloria taken on the date of her birth, and later in September and October 2001, show an apparently healthy and happy infant (Exhibit B, photographs 1-6). 19 Nurse Deborah Lee saw Gloria on 4 October 2001 at the Earlwood Early Childhood Centre, observing at that time eczema on the face and behind the ears. She advised the Offenders to treat the eczema with sorbelene to moisturise the skin to prevent it from getting dry (T166). 20 On 13 November 2001, the Offenders took Gloria again to the Earlwood Early Childhood Centre where she was examined by Nurse Lee. Nurse Lee observed extensive eczema all over Gloria's body, limbs and face (T167). The eczema had worsened since 4 October 2001. Due to the extensive eczema, she encouraged the Offenders to consult a skin specialist. In the meantime, she advised the Offenders to use baby oil, sorbelene massage and oat baths. 21 The Offenders did not follow the advice of Nurse Lee on 13 November 2001 to see a skin specialist. 22 Photographs in evidence (Exhibit B) provide graphic evidence of the extent of eczema afflicting Gloria at different times. Photograph 7, taken on 30 October 2001, reveals marks on Gloria's face and legs. Photographs 8 and 9 depict eczema to Gloria's face, arms, chest and legs on 7 December 2001. Photograph 10 was taken on 13 December 2001. It reveals widespread reddening on Gloria's body from head to toe, and she is understandably distressed and crying in the photograph. It does not require expert medical evidence to readily infer that an infant afflicted in this way would be suffering pain, and showing her distress by the only available means, namely crying and physical movements. 23 K Oommen George, the uncle of Thomas Sam, was a homeopath living and working in the United States of America. According to the statement of Oommen George read at the trial (T314-315), in late 2001, Thomas Sam telephoned Oommen George seeking advice concerning Gloria, whom Mr Sam explained had been diagnosed with "extensive atopic dermatitis with nutritional imbalance". Thomas Sam enquired as to academic information concerning homeopathic supplements that Oommen George recommended to improve the child's health. Oommen George suggested Chamomilla 3X, Hydrocotyle Asiatica 12X, Jugulans Regia 3X and Bablyplex syrup, all of which (according to Oommen George) were recognised supplements for "the improvement of vital energy, micro-nutrition and enrichment under homeopathic vital energy principles". I accept that Thomas Sam acted upon this advice to apply homeopathic remedies to Gloria. Of course, Oommen George had not seen Gloria in 2001 and his advice must be understood in that light. It was Thomas Sam who was applying the treatments to Gloria. 24 Thomas Sam's sister, Annie Johnson, lived with her husband and children at the Offenders' home at Earlwood from Gloria's birth in July 2001 until 20 December 2001. She assisted the Offenders in that period with Gloria and generally. After 20 December 2001, the Offenders lived alone with Gloria at their Earlwood home. 25 The Offenders did not take Gloria to a medical practitioner between 13 November 2001 and 11 January 2002.

[22]

The Period 11 January 2002 - 23 February 2002 26 As at January 2002, Thomas Sam worked part time as a homeopath at the Liverpool Medical Centre conducted by Dr Vipin Goyal, a general practitioner. On Friday, 11 January 2002, Dr Goyal observed Manju Sam sitting in the staff area of the practice, nursing her baby. Manju Sam said to Dr Goyal "I want to consult you, Doctor" (T172). No appointment had been made for a consultation. Dr Goyal invited Manju Sam into the consultation room and she told him that she was concerned about her child's eczema. Dr Goyal examined Gloria and observed widespread eczema on her body, including the face and arms. Manju Sam told Dr Goyal that she had suffered from eczema and asthma in her childhood and there was a family history of eczema. Manju Sam informed Dr Goyal that Gloria was receiving homeopathic treatment. Thomas Sam attended part way through the consultation which his wife had with Dr Goyal on this day. 27 Dr Goyal considered the rash to be serious and warranting referral to a specialist dermatologist. He considered it to be "one of the most serious rashes I have seen" (T172.49). Dr Goyal provided the Offenders with a referral to Dr Phillip Artemi, a dermatologist, practising at Liverpool (Exhibit D). The referral stated that Gloria suffered from "bad atopic eczema" and referred to the mother's family history of eczema and asthma before concluding "Gloria's father is a homeopathic doctor and works in our practice to provide holistic medicine". Dr Goyal informed Manju Sam that Gloria "was serious and she should see [Dr Artemi] at the earliest" (T174.39). 28 Dr Goyal did not see Gloria again. The Offenders did not take Gloria to see Dr Artemi as had been strongly advised by Dr Goyal. 29 Photograph 11 was taken on 15 January 2002, four days after the consultation with Dr Goyal. Gloria's skin is visibly affected in this photograph as well. Photographs 12, 13 and 14 were taken on 16 January 2002 and graphically depict large areas of angry reddened and elevated skin all over the infant. Gloria is upset and crying in Photograph 13 and I infer that her distress relates directly to the condition then obviously affecting her. 30 It is difficult to understand how reasonable parents who had been strongly advised by Dr Goyal to see a specialist dermatologist, and who had been provided with a referral for this purpose, had not taken Gloria for an assessment and ongoing treatment by Dr Artemi. There was a clear reluctance on the part of the Offenders to obtain, and follow through, specialist medical advice and treatment for Gloria. As will be seen, this was a pattern in the Offenders' approach to Gloria's eczema. 31 On 7 February 2002, the Offenders took Gloria to the Earlwood Early Childhood Centre where she was examined by Nurse Melissa Harnett. Gloria's bare weight had dropped from 6.3 kgs on 13 November 2001 to 6.1 kgs on 7 February 2002. Nurse Harnett considered that a 200-gram loss over a three-month period constituted a substantial lack of growth and she said as much to the Offenders (T189-190). Nurse Harnett attempted to assess Gloria's developmental stages, but because the baby was quite distressed during the visit, she did not complete the examination. Gloria was crying, appeared uncomfortable and was not pushing up well. 32 Nurse Harnett observed severe eczema on various parts of Gloria's body with severely broken skin in areas (T188-189). She observed that Gloria was moving constantly and appeared to be itching herself. Nurse Harnett expressed concern to the Offenders that, unless the eczema was stabilised, the baby would continue to have increased energy needs and failure to thrive and develop. She urged the Offenders to see a skin specialist at the Prince of Wales Hospital as soon as possible (T190). 33 Nurse Harnett explained to the Offenders the significance of Gloria's weight loss and her developmental milestones (T192-193). Nurse Harnett believed that the infant's energy was being diverted to fight the eczema, and that this was the reason for the lack of growth, and she told the Offenders about this (T207). 34 Nurse Harnett told the Offenders that the quickest way to obtain attention for Gloria was to present at a Children's Hospital casualty or, alternatively, she could refer them to Dr Brian Symons, a community paediatrician (T193). Arrangements were made for the Offenders and Gloria to see Dr Symons the next day, 8 February 2002. 35 On 8 February 2002, Dr Symons examined Gloria, in the presence of the Offenders, at the Earlwood Early Childhood Centre. Dr Symons was an experienced paediatrician working at that time with the Canterbury Child Adolescent Family Heath Service. He observed extensive eczema and Gloria appeared to be unhappy and was scratching. He had been informed by Nurse Harnett that there had been some weight loss. The Offenders told Dr Symons that they had been using sorbelene cream, cod liver oil, Sigmacort, cortisone ointment together with some homeopathic medicine in treating Gloria for eczema (T210). Dr Symons advised the taking of simple steps such as cutting nails to reduce scratching, and to continue with the treatment which the Offenders were using, with the exception of the homeopathic treatment which he did not know (T212). Dr Symons advised the Offenders that a paediatric skin specialist should become involved. 36 Dr Symons examined Gloria again on 19 February 2002 and there was some improvement. The eczema appeared calmer and less red and angry, and the infant appeared much happier and was laughing again (T214). 37 Dr Symons asked the Offenders whether it would be more convenient for them to attend the Children's Hospital at Westmead or the Sydney Children's Hospital at Randwick to see a paediatric dermatologist. The Offenders elected to attend Sydney Children's Hospital, Randwick. Dr Symons rang the appointment section of the hospital and asked for the earliest appointment, which was set for 4 April 2002 with Dr Wargon, paediatric dermatologist (T214). 38 Some days later, Dr Symons received a telephone call from one of the Offenders. The Offenders had decided that Manju Sam and Gloria should travel to India to stay with Manju Sam's parents. The Offenders thought that this would provide her with support and assistance. I accept that the call was made by Manju Sam, although it is possible that Thomas Sam spoke to Dr Symons by telephone as well. It is apparent from the records of interview of the Offenders that both of them were entirely familiar with the conversation which occurred with Dr Symons concerning the appointment with the paediatric dermatologist, and the abandonment of that appointment because of proposed travel to India. I am satisfied that Dr Symons expressed, in strong terms, his unhappiness concerning the planned trip by Manju Sam and Gloria to India, which would result in their inability to continue treatment in Sydney and to attend the appointment on 4 April 2002 at Randwick. 39 Thomas Sam acknowledged in his record of interview that Dr Symons was "not happy" and "expressed unhappiness" about the planned trip to India, and the resulting inability to attend the specialist appointment (Exhibit O, Q/A556). Dr Symons made clear to Thomas Sam that specialist treatment should definitely be obtained in India, and Mr Sam assured him that they would be "getting some treatment in India" from a skin specialist (Exhibit O, Q/A558-566). According to Thomas Sam, Dr Symons "was not really happy that we are leaving the country at that time" (Exhibit O, Q/A571). 40 In her record of interview, Manju Sam said that she was concerned that Gloria's weight had reduced at the time of the second visit to Dr Symons (Exhibit Q, Q/A410-415). Dr Symons' evidence was that he told Manju Sam that he was unhappy about the trip to India, and that it seemed "cruel" to Gloria (T217.13). Although he was unhappy at this plan, Dr Symons said that he was fortified by the fact that Manju Sam had got in touch with him at all, and had assured him that specialist treatment would be obtained in India. Manju Sam denied, in her record of interview, that Dr Symons used the word "cruel" in their conversation or conversations concerning the trip to India. Although it is not a critical issue for the purpose of sentence, I accept Dr Symons' evidence that he used the word "cruel" in his conversation with Manju Sam. It is entirely clear that Dr Symons expressed, in no uncertain terms, his unhappiness concerning the trip to India, with the consequential delay in examination of Gloria by a paediatric dermatologist in Sydney. In this context, his suggestion that the journey would be "cruel" to Gloria is an expected comment from a very concerned medical practitioner. 41 Senior counsel for Manju Sam made submissions critical of Dr Symons in his closing address to the jury, which were repeated in submissions on sentence before me. The thrust of the submission was that Dr Symons had not stated that, if the Offenders did not take steps to deal with Gloria's eczema and its related weight loss, then the position may become extremely dire and life threatening. I do not consider that this argument assists the Offenders. This is a case of manslaughter by criminal negligence. It was not necessary for the Crown to prove that each Offender was informed that the failure to properly treat Gloria's eczema, and associated weight loss, may lead to death. 42 In any event, it is clear that each Offender had an understanding of the consequences of protracted eczema and associated weight loss. It should be kept in mind that each Offender was well educated with tertiary qualifications in science. Manju Sam acknowledged that she had been told by Nurse Harnett that Gloria's weight was reduced, and that this could be because her body was "trying to use energy to fight the eczema and she was not gaining much weight" (Exhibit Q, Q/A339). Thomas Sam acknowledged that he was aware, from the time he saw Dr Symons, that Gloria's development was delayed and that it could be due to eczema (Exhibit O, Q/A779, 796-805). I am satisfied that the Offenders, by the time they had seen Nurse Harnett and Dr Symons in February 2002, were both aware that there was a link between Gloria's weight loss, and the ongoing eczema which obviously afflicted her and which required a specialist assessment by a paediatric dermatologist. It was apparent to the Offenders, as it would be to any reasonable parent, that the top priority was to ensure thorough and competent medical attention for Gloria, to ensure that she resumed her growth and development. 43 I formed the clear impression that Dr Symons has assumed a heavy burden of self-criticism with respect to his involvement in the assessment and treatment of Gloria. In my view, Dr Symons has been too harsh on himself. He impressed as a caring medical practitioner. He examined Gloria, in his capacity as a community paediatrician, and advised assessment and treatment by a specialist paediatric dermatologist. He made arrangements for the earliest available appointment at the Sydney Children's Hospital, Randwick for this purpose and intended to monitor Gloria's treatment and progress in the meantime. The Offenders were aware that there was a link between Gloria's eczema and her weight-loss problem and her failure to thrive. He advised the Offenders strongly against taking Gloria to India, and away from available methods of assessment and treatment in Sydney. He could not force the Offenders to remain in Australia. Ultimately, he accepted assurances from the Offenders that Gloria would be provided with specialist medical treatment in India. He was entitled to expect that the Offenders, as intelligent parents, would seek specialist medical advice in India and follow through with that advice. It was the Offenders who took Gloria out of Australia, against medical advice. 44 According to the statement of Oommen George, prior to Manju Sam and Gloria travelling to India, he spoke to Thomas Sam by telephone and Mr Sam advised that Gloria's skin condition had improved. Indeed, according to a statement of Oommen George dated 12 December 2002, he was informed "that the baby is making tremendous progress". It is difficult to reconcile this statement by Thomas Sam with the observations of Gloria by medical practitioners on 25 February 2002 in India, to which I will turn shortly.

[23]

Findings Concerning Period 4 October 2001 - 23 February 2002 45 I pause at this stage to assess events between 4 October 2001 and 23 February 2002 concerning the treatment of Gloria's eczema. Nurse Lee had advised the Offenders on 13 November 2001 to have Gloria examined by a skin specialist. The Offenders failed to do so. Manju Sam saw Dr Goyal on 11 January 2002, leading to a referral to Dr Artemi which was not acted upon by the Offenders. Dr Symons examined Gloria on 8 and 19 February 2002, and advised specialist paediatric dermatological assessment, with arrangements being made for this purpose. The Offenders elected to leave Australia, and not follow through at that time with that arrangement. The Offenders considered that there would be greater family support available to Manju Sam in India. The removal of Gloria from Australia between 23 February and 27 April 2002 was clearly not conducive to a settled and consistent course of treatment of Gloria which could serve to clear up the eczema. 46 I am satisfied that Thomas Sam was applying homeopathic treatment and remedies to Gloria before the departure to India on 23 February 2002. The evidence does not indicate that any homeopath in Australia, apart from Thomas Sam, examined Gloria between October 2001 and 23 February 2002. I accept that Thomas Sam spoke to Mr Vinay Katyal, a homeopath with whom he was associated, concerning Gloria. However, Mr Katyal never examined Gloria. There was an occasion when Thomas Sam made a social visit to Mr Katyal's home (in the context of Mr Katyal's wife being diagnosed with cancer) when Thomas Sam was carrying Gloria. There may have been some discussion concerning Gloria in this context, but this was not a consultation or examination. 47 Thomas Sam admitted to Nurse Harnett, Mr Katyal, Dr Varatharajan, Dr Williams and in his own record of interview with police that he had been using homeopathic treatments on Gloria for her eczema. Although it may have been that some of these treatments had originated from Mr Katyal because of the means of exchange of homeopathic supplies (T309.16), I am satisfied that no homeopath in Australia (apart from Thomas Sam) was examining Gloria, and forming an opinion as to what treatments ought be used on her for eczema. This was not a case where a homeopath had prescribed or recommended the use of particular treatments following an examination of Gloria. Rather, I am satisfied that, prior to 23 February 2002, it was Thomas Sam who was exercising his own professional judgment concerning homeopathic treatments to be used on Gloria, during a period when there was medical examination by Dr Goyal and Dr Symons, with strong advice that specialist paediatric dermatological assessment was required. In reaching this conclusion, I have had regard to the evidence of Annie Johnson to the effect that Thomas Sam said he would not treat Gloria as she was a family member. Whatever Thomas Sam may have said, I am satisfied that he was treating Gloria in Australia before 23 February 2002. 48 Although the Crown case focused upon omissions of the Offenders in the period between 27 April 2002 (when they returned to Australia) and 12.01 pm on 5 May 2002 (when they attended the Sydney Children's Hospital, Randwick), earlier events in Australia up to 23 February 2002 are pertinent. Likewise, events which occurred in India between 23 February and 27 April 2002 are relevant to an assessment of what did and did not happen in the critical nine-day period following the Offenders' return to Sydney on 27 April 2002.

[24]

The Period in India Before the Arrival of Thomas Sam - 23 February 2002 to 5 April 2002 49 Manju Sam and Gloria departed Australia on 23 February 2002 bound for India. Thomas Sam remained in Australia at that time because of work commitments, principally relating to teaching of homeopathy. He planned to join his wife and daughter in India in early April 2002. 50 Manju Sam and Gloria travelled to Kerala, in southern India, where they lived for a period with Manju Sam's parents. At the urging of her parents, Manju Sam took Gloria on 25 February 2002 to the Century Hospital in Kerala, where Gloria was examined by Dr Alexander Mohan, a paediatrician. He observed that the child was alert, although constantly crying. Dr Mohan considered Gloria's weight gain to be inadequate, although "acceptable", and he did not recommend any treatment in relation to weight (T459). He found symptoms of extensive widespread dermatitis and eczema, and requested that they consult Dr Thomas, a skin specialist at Century Hospital, that same day. 51 Dr Vipin Thomas, dermatologist, examined Gloria on 25 February 2002 at the request of Dr Mohan. Dr Thomas observed extensive atopic dermatitis in the form of infantile eczema with candidiasis of the nappy area. He informed Manju Sam to avoid allergens, and to give the baby only breast milk or soya bean milk because skin lesions are started by allergens. He prescribed Ampiclox syrup, an antibiotic to combat infection associated with eczema and Loratidine syrup, an antiseptic to relieve itching and other systemic-induced problems. He also prescribed Ampiclox cream, an antifungal cream, to be applied to extremities. He advised Manju Sam to bring Gloria in every alternate day thereafter to assess her progress. Dr Thomas felt that such follow up was appropriate because of the extensive nature of the eczema, and he wished to give "maximum protection" and "maximum diagnosis" (T355-356). Dr Thomas "wanted to be on the safe side so that the patient might get better" (T356.8). 52 Manju Sam did not bring Gloria back for follow-up examination and treatment by Dr Thomas, Dr Mohan or any other medical practitioner at Century Hospital. In fact, Dr Thomas was the last conventional registered medical practitioner to examine Gloria before her attendance and emergency admission to the Sydney Children's Hospital, Randwick on 5 May 2002. 53 Manju Sam asserted in her record of interview that Gloria's condition improved with the treatment advised by Dr Mohan and Dr Thomas, so that it was not considered necessary to return as advised by Dr Thomas. I do not accept that any improvement in Gloria's condition avoided the necessity for ongoing medical examination and treatment in India. It was for medical practitioners to assess Gloria's progress, and not Manju Sam with homeopathic advice only. There was no impediment whatsoever to Gloria being taken back to Dr Thomas at the Century Hospital for ongoing treatment and assessment. I accept that Thomas Sam played a principal part in this decision. Although not present in India at that time, he was kept aware of all developments as they occurred. Once again, the Offenders disregarded medical advice to follow through with specialist treatment of Gloria. 54 I am satisfied that, after 25 February 2002, Gloria was seen at various times by Mr Punnoose Sam, a homeopath who was the younger brother of Thomas Sam. Punnoose Sam did not give evidence in the trial. Evidence concerning his background and qualifications emerged from the records of interview of the Offenders and the evidence of Annie Johnson. I accept that Punnoose Sam was trained as a homeopath in India. I am satisfied that he was not a registered medical practitioner. Between 25 February 2002 and the arrival of Thomas Sam in India on 5 April 2002, Punnoose Sam was the only health provider of any type who had any involvement in the care of Gloria. 55 I am satisfied that there was daily telephone contact between the Offenders in the period 23 February 2002 to 5 April 2002 so that Thomas Sam was informed of assessments being made (or not made) and treatment being given (or not given) to Gloria for her eczema. I accept that the treatments prescribed by Dr Mohan and Dr Thomas were applied to Gloria, from time to time, together with homeopathic remedies through Punnoose Sam.

[25]

The Period in India After the Arrival of Thomas Sam - 5 April to 27 April 2002 56 When Thomas Sam arrived in India on 5 April 2002, it was apparent to him that Gloria remained developmentally delayed and below the appropriate weight for an infant of her age. I am satisfied that Gloria, at that time, was obviously afflicted, physically, by eczema. So much is clear from an examination undertaken on 13 April 2002 by a homeopath, Dr Ramanlal Patel. If there had been any improvement in Gloria's eczema in the period between 25 February and 13 April 2002, I am satisfied that it was minor improvement only, and the child remained consistently visibly afflicted by eczema. 57 At the suggestion of Thomas Sam, Gloria was examined by Dr Patel in his homeopathic clinic at Kottayam. Dr Patel was 77 years old in 2002. His qualifications included a Diploma in Homeopathic Medicine and Surgery from Calcutta Homeopathic Medical College and a Diploma in the Faculty of Homeopathy, London. His further qualifications were set out in his statement read to the jury (T363-365), but these did not suggest that he was a registered practitioner entitled to practise medicine and surgery in the same way as registered medical practitioners such as Dr Mohan and Dr Thomas. Dr Mohan had heard of Dr Patel, but had no direct contact with him (T459). 58 On 13 April 2002, Gloria was first seen by Dr Preetha, a homeopathic assistant to Dr Patel, who conducted an examination and took a history. It was recorded that Gloria had suffered from eczema for four months, and that it was first noticed on the face and hands and then spread to the whole body. The following was recorded (T363-364): "There were small eruptions of reddish nature with severe itching and occasionally slight discharge. The child was irritable and had delayed milestones. There was enfoliation of skin, oedematous swelling on legs and the child couldn't bend legs. The child was crying and even slight movements were painful. There was heat sensation in the head. The appetite was good and thirst had increased. It was only fed with breast milk. The child's urine was normal and motion regular. The person who brought the patient also told that the child was given homeopathic medicine, listing Sulphur, Calecarb-30, Thuja-30 (one dose)." 59 Dr Preetha noted that "the child was irritable, moaning, sad looking and desired to be carried by someone always". 60 Dr Patel stated that he then observed and examined Gloria "for about 10 or 15 minutes". He diagnosed "the disease of the child as atopic dermatitis". He prescribed the medicine Lycopodium for one month, with Gloria to be brought back in a month's time. Gloria was not seen again by Dr Patel or anyone else in his clinic. 61 The evidence did not indicate the attributes of Lycopodium, or the indications, or contra-indications, for its use. The only reference to Lycopodium is contained in Exhibit M, Thomas Sam's Sydney lecture notes for teaching "Paediatrics II - Gastro Intestinal Disorders in Children", where Lycopodium is listed as a homeopathic medicine indicated for paediatric constipation (pages 11-12). 62 The description of Gloria's condition upon examination by Dr Preetha on 13 April 2002, taken with earlier descriptions upon examination in February 2002 by Nurse Harnett and Dr Symons, and on 25 February 2002 when examined by Dr Mohan and Dr Thomas, points to a consistent and persistent level of obvious affliction by eczema with an ongoing impact upon Gloria's health, weight and skin quality. Assessing the position as it stood on 13 April 2002, and without engaging in a process of hindsight, I am satisfied there was a very significant disconnect or gap between the nature of Gloria's condition when seen by Dr Patel, and the treatment and follow up advised by the homeopath on that occasion. The involvement of Dr Patel could provide no comfort to a reasonable parent against the background of Gloria's protracted and extensive eczema. This point is further emphasised by what followed after 13 April 2002. Less than a month later, Gloria was dead.

[26]

63 I accept that Punnoose Sam had some ongoing involvement with Gloria after 13 April 2002. 64 The Offenders and Gloria remained in India until 27 April 2002. Whilst they were in India, it was announced that Punnoose Sam was to become engaged and married, and his wedding took place on about 22 April 2002. Between 13 and 22 April 2002, the Offenders and Gloria travelled around parts of southern India for social purposes. I accept that treatments in the possession of the Offenders were applied to Gloria in this period, although there was no medical examination or supervision of her case. 65 The statement of Oommen George read at the trial did not suggest that he had, at any time, examined Gloria. Annie Johnson gave evidence that Oommen George came to India for the wedding of Punnoose Sam and, in this context, that he had seen Gloria (T706-707, T736-743). I accept that there was a cursory observation of Gloria by Oommen George on Punnoose Sam's wedding day, which involved the lifting of Gloria's dress to reveal the rash on her body. This event did not take place in a consultation room. It was little more than a brief opportunity for Oommen George to see the markings on Gloria's body. I do not accept that this constituted a proper examination of a patient to assist a process of assessment and advice as to treatment. This conclusion is reinforced by the failure of Oommen George to refer, in either of his statements, to the fact that he had examined Gloria in India in April 2002. 66 Between 17 and 23 April 2002, Annie Johnson had opportunities to observe Gloria in India. She said that Gloria's rash was "not too bad" at that time. On 22-23 April 2002, Manju Sam developed pain and vomiting and Thomas Sam took his wife to hospital in Punalur where she was diagnosed as suffering from gallstones and was provided with conventional medical treatment. In the meantime, Gloria was with Annie Johnson (T646-648). Annie Johnson described Gloria's skin at this time as being "rashy and liquid was oozing" (T647.41), with the eczema being at a similar level to that which she had observed at its worst in Australia (T648). According to Annie Johnson, Gloria's "skin was open" and "it appeared red and patchy" (T648.32). 67 There is a notable contrast between the Offenders' willingness to obtain conventional medical treatment for Manju Sam in April 2002 because of her pain and vomiting, and the failure to obtain, and follow through, consistent conventional medical advice and assistance for Gloria in Australia and India. 68 On 27 April 2002, the Offenders and Gloria returned to Australia. It is appropriate to take stock of the Offenders' own accounts of Gloria's health and appearance at the time they departed India to return to Australia. In his record of interview (Exhibit O), Thomas Sam said that Gloria's eczema had deteriorated since 6 April 2002 with her having "a bit of peeling of the skin, leaving a red appearance" with the peeling in the "axilla and the folds … the underarms, loins and groin" (Q/A1232-1234). Gloria's general health was "not very good" and she was "probably still declining" and "used to cry … all the time", "was always irritable" and did not "want to eat much" (Q/A1233-1240). She was malnourished, her developmental milestones were delayed, she looked tired and had started "developing grey hairs" when her hair used to be "jet black" (Q/A1246-1259). 69 In her record of interview (Exhibit Q), Manju Sam stated that, as at 27 April 2002, Gloria had a rash on most of her folds, under her arms and in her joints with the skin looking "very very red in the armpits, around the stomach area, on her legs and behind her knees" and "some times used to bleed" (Q/A698-705). Manju Sam stated that she did not clothe Gloria because, if she removed the clothes, "if it sticks to her body it can bleed" (Q/A707). Although Manju Sam stated that Gloria's condition had improved in India, she said that the rash got worse two or three days prior to returning to Australia (Q/A709). 70 Accordingly, on the Offenders' own accounts, Gloria's condition on 27 April 2002 involved obvious and severe markings to her skin which inevitably would have caused significant pain and irritation to the infant. 71 Even if Dr Patel's advice on 13 April 2002 could provide some comfort to the Offenders, it was apparent a fortnight later that Gloria was most unwell, so that any comfort from the involvement of Dr Patel should have evaporated. Any reasonable parent would have been alarmed at Gloria's condition by this time. It was obvious that urgent medical attention was required.

[28]

The Final Period in Sydney - 27 April 2002 to 5 May 2002 76 Thomas Sam returned to work upon his arrival in Australia. Manju Sam remained at home with Gloria. 77 I am satisfied beyond reasonable doubt that Gloria was a very sick child indeed upon her return to Australia on 27 April 2002. Her body was racked by eczema, with oozing sores and extensive areas of red rash on her torso, arms, legs and face. 78 I am satisfied beyond reasonable doubt that for the period between 27 April and 5 May 2002, Gloria made no significant improvement whatsoever. She remained in pain and distress. Her condition worsened. The findings which I make in this respect rely upon the accumulation of evidence, both oral and photographic, describing Gloria's state over an extended period of time measured in months. 79 The records of interview of the Offenders do not disclose, in my view, any basis for concluding that Gloria's condition improved at all following their return to Australia. The observations of her condition when admitted to Sydney Children's Hospital, Randwick on 5 May 2002 strongly support a finding that the child had been afflicted by eczema, with its debilitating consequences on her weight, development and general health, for an extended period of time. Forms of homeopathic treatment (principally) and some conventional medical treatment were utilised, as advised by the few doctors who had examined her, with superficial and transient effects at best. 80 It is important to observe that the Crown case at trial focused upon the omission by the Offenders to obtain medical treatment for Gloria between 27 April and 5 May 2002. The written directions provided to the jury emphasised that this period was the focus of attention. It is the fact that no registered medical practitioner nor homeopath examined Gloria at all in this period, apart from the involvement of Thomas Sam in her care and treatment. 81 It is appropriate to refer to the accounts of the Offenders as to what was done, and not done, concerning Gloria in this period. In his record of interview, Thomas Sam said that Gloria was looking better upon their return to Australia (Q/A1419). I do not accept this account, which does not accord with the totality of the evidence. He said that Gloria was being treated with medicine obtained from Dr Patel in India and that this was helping (Q/A1436, 1439). I bear in mind that the only treatment advised by Dr Patel was Lycopodium. Thomas Sam said that, by Friday, 3 May 2002, Gloria had developed a red rash in the eye and, on Saturday, it looked like an ulcer in the cornea (Q/A1442). He said that she was not crying as much as she did in India (Q/A1510). Thomas Sam said that, on 4 May 2002, he gave Gloria homeopathic medicine, Cineriamaritima, for her eye (Q/A1493-1494). He said that, on the Saturday night, he and his wife were "a bit concerned" and, on the Sunday morning, the ulcer was spreading in the cornea and there was redness, pus and the discolouration was becoming thicker (Q/A1586). He stated, however, that he was tired and Gloria was sleeping, as was his wife, so that they did not go to the hospital (Q/A1598-1600). He said that, on Sunday, Gloria was not looking healthy, her crying was getting worse and the rash was spreading (Q/A1447, 1452). He observed that he did not see the rash because he had been working, and he relied on his wife to tell him about the rash (Q/A1463). 82 On the morning of Sunday, 5 May 2002, he and his wife decided to go to the hospital, but this was delayed to allow Thomas Sam to attend to duties at a church service that morning (Q/A1648, 1755). 83 In her record of interview, Manju Sam stated that Gloria's skin condition was improving upon their return to Australia and that she was taking food including solids and breast milk (Q/A728). I do not accept Manju Sam's account that Gloria's skin condition was improving upon their return to Australia. I am satisfied that it continued to worsen from the state observed by the aircraft passengers on 27 April 2002. She stated that Gloria was being given homeopathic medicine and baby tonic once a day, being medicine and tonic obtained in India (Q/A716, 722, 725, 833). In addition, Manju Sam said she used the cortisone cream prescribed by Dr Symons. The one tube of cortisone cream had lasted from 8 February to 5 May 2002 (Q/A1019). 84 Manju Sam explained that she and her husband had not taken Gloria for medical attention upon their return to Australia "because we were sort of recovering from jet lag and it was very hot in India, we were very tired, very drained" (Q/A711). 85 Manju Sam said that, by 30 April 2002, she and her husband were discussing taking Gloria to the doctor and the prospect of contacting Dr Symons, but they did not do so (Q/A772-812). With respect to jet lag, Manju Sam stated that "we were very tired" and she remembered sleeping for two to three days after returning to Australia (Q/A788). She acknowledged that she was Gloria's primary carer, and that she and Gloria stayed at home and went nowhere from 27 April 2002 until their attendance at the Sydney Children's Hospital on 5 May 2002 (Q/A733). She noted a discolouration in Gloria's eye on Friday, 3 May 2002 and, by Saturday, Gloria's eye had a lot of pus (Q/A815, 870, 906). 86 Senior counsel for Manju Sam referred to the evidence of Maria Dos Santos, the downstairs neighbour of the Offenders, who said that, on the occasions that she was present, she did not hear the baby cry in the period 27 April 2002 - 5 May 2002. Ms Dos Santos was at work at times in this period. I do not think her evidence assists on this issue. If Gloria was not audibly crying as often in this period, I am satisfied that this was not because of any contented state. She was a very sick infant with eroding skin. Her distress would have been apparent to her parents. 87 I do not accept the Offenders' accounts concerning Gloria's health and appearance following 27 April 2002. I am satisfied that each Offender understated significantly in their interviews the true condition of Gloria in the critical period leading to 5 May 2002.

[29]

Attendance at Sydney Children's Hospital, Randwick - 5 May 2002 88 Finally, at 12.01 pm on Sunday, 5 May 2002, after Thomas Sam had returned home from church, the Offenders took Gloria to the Sydney Children's Hospital, Randwick. The nursing and medical staff recognised immediately the urgency of Gloria's condition. The descriptions of Gloria and the assessments and responses of nursing and medical staff at the hospital constitute potent evidence of Gloria's obvious and profound deterioration. The range of nursing and medical staff who were deployed rapidly on a Sunday afternoon in Sydney also points starkly to the resources available, if only the Offenders had sought earlier treatment for Gloria. 89 Nurse Frances Brogan observed a distressed and crying infant, with extensive eczema covering her whole body and with a purulent discharge coming from both eyes. Nurse Brogan was shocked and wanted Gloria to be seen quickly by a doctor. 90 Within minutes, Gloria was examined by Dr Susannah Cunningham, the Paediatric Emergency Registrar. Dr Cunningham said that Gloria was squealing and distressed when touched and was severely malnourished, with a weight of 5.4 kgs (T404). She had large patches of excoriated raw skin which looked angry, red and moist. The skin was cracked in areas. The baby was in severe pain. Dr Cunningham considered that the child had been in severe pain for a period of days, if not longer (T405). The infant was in so much pain every time her skin was exposed, and her arms or legs were straightened, that Dr Cunningham opted to take Polaroid photographs of Gloria so that each new doctor could look at the photographs and leave Gloria without having to cause her further pain or distress (T408). 91 The Polaroid photographs taken by Dr Cunningham (Exhibit B, photographs 16 and 17) depict a severely upset infant with very extensive areas of reddening to the body. The photographs constitute tragic and eloquent evidence concerning the condition which had racked Gloria's body for some time, with inevitable associated pain and distress. 92 Dr Penelope Lee, dermatologist, examined Gloria. She observed an eroded eruption to Gloria's torso, groin and armpits so that the top surface of the skin, the epidermis, had completely eroded away and there was no skin remaining. This was obviously painful and Gloria was very distressed every time she was moved upon examination (T424). Dr Lee formed the view that Gloria was "incredibly sick" with "this massive eroded rash". Dr Lee had never seen anything like it before in her life (T430). 93 Dr Orli Wargon, paediatric dermatologist, observed a very small baby with hair colour "that looked like pure wool" with her skin looking very painful and eroded and her eye appearing cloudy (T438). Dr Wargon considered Gloria to be in extreme pain, and thus conducted her examination quickly as there was an urgency to address her other health issues including her pain (T441). 94 Dr Matthew O'Meara, the head of the Children's Emergency, examined Gloria and considered that her immediate priorities at that time were pain relief, fluids and electrolyte management and identification of the cause of her skin problem and her malnutrition. He said that Gloria was "grossly malnourished" and was in pain and quite distressed, such that he gave her morphine for her pain (T471-472). Dr O'Meara observed that Gloria's weight was considerably below the third percentile and her length had dropped below the second percentile (T475). 95 Dr Gary Williams, the Senior Staff Specialist in the Children's Intensive Care, observed Gloria to be "a pale thin baby" with thin hair, broad cracked nails, slightly swollen extremities and a widespread eroded indurated moist erythematous rash with overlying caked secretions or discharge (T481). He observed that some of the inflamed areas of the skin had been present so long that scarring had occurred to thicken the skin (T481.24). Dr Williams expressed the opinion that, if Gloria had received conventional medical care and nutritional support at an earlier stage, "she would not have been so susceptible to overwhelming grand negative infection" (T484). Dr Williams considered that Gloria's skin condition had existed for some considerable time (T488). 96 Dr Robert Chong, the Registrar Ophthalmologist, examined Gloria in an effort to assess her quality of vision from each eye. 97 Dr Monique Stone, paediatrician, observed that Gloria had an extensive ulcerated rash that covered most of her body and she had "a high pitched distressed cry when disturbed, particularly when the dressings were removed" (T522). It was clear to Dr Stone that Gloria was very unwell and required high-dependency nursing and medical care (T522). 98 Dr Ian Kennedy, ophthalmologist, examined Gloria and said her condition was very unusual and he had never seen such a case (T526). With respect to Gloria's left eye, he observed that it would be very difficult to have treated the eye and save it (T527). He considered that the condition in Gloria's left eye could have developed within a matter of days (T527). In order for a cornea to melt, it must progressively thin and perforate and this process could be a fairly long-term one over a matter of weeks (T528). 99 Gloria was admitted and treated at the Sydney Children's Hospital until her death at 1.20 am on 8 May 2002. 100 Dr Ella Sugo, pathologist, performed an autopsy on the child and concluded that she died from disseminated infection which caused, in the agonal stages immediately before death, bleeding from the lungs and airways. The infection developed on a background of chronic eczema and significant protein-energy malnutrition. In summary, Dr Sugo explained that the eczema was accompanied by malnutrition that affected Gloria's immunity, and she experienced disseminated infection throughout her entire body which caused her lungs to bleed which led to her death (T536).

[30]

Opinions of Other Expert Witnesses 101 A number of medical witnesses who did not have an opportunity to examine Gloria were called by the Crown to give evidence at the trial. The opinions of these witnesses were based upon an examination of reports, records and photographs and they provide further insight into Gloria's condition, in particular, in the period 27 April to 5 May 2002. 102 Dr Lorna Scott, a registered medical practitioner and qualified homeopath, observed that Gloria appeared tired and lethargic with raw and weeping skin following the family's return to Sydney, and that these were "features of a very unwell child" (T574). By 27 April 2002, Dr Scott observed that Gloria was irritable, lethargic, sleeping a lot and always wanting to be on the breast, underweight and the skin rash had altered in appearance to large raw peeling areas in the armpit, groin, lower back and abdomen and that this "was not a simple case of atopic eczema" and should have been "a delineation point" (T575). Dr Scott observed that the cortisone cream that the parents were apparently applying to the raw skin surfaces was inappropriate and ineffective, and that the raw weeping skin would have provided a surface for infecting organisms to take hold, and the baby's debilitated state made it even more likely to become a generalised infection or septicaemia (T575). 103 Dr Alison Kesson is the head of the Department of Infectious Diseases and Microbiology at the Children's Hospital, Westmead. Dr Kesson observed that, as at 27 April 2002, there was evidence of widespread severe eczema affecting Gloria, that her condition at that time was very severe and there was clear evidence that she had significant developmental delay, in that she was not doing the things that would be expected of a normal eight or nine-month old baby (T675). 104 Dr Kesson said that Gloria would have been extensively colonising pseudomonas aeruginosa due to her wet skin condition for several months, although it was difficult to time when her infection became systemic, and it was difficult to determine exactly when, in place and time, the provision of therapy would have prevented death (T676). Dr Kesson observed that systemic infection with pseudomonas aeruginosa is life threatening and must be treated as early as possible, and very aggressively, to ensure survival. It is a condition usually observed in severely immuno-suppressed individuals. 105 In Dr Kesson's view, the latest time to commence therapy, and prevent Gloria's acute death, was probably 24 to 48 hours prior to presentation at the Sydney Children's Hospital, Randwick on 5 May 2002 (T677). In Dr Kesson's opinion, if Gloria had been brought to hospital one week earlier, she probably would have survived, but the other complication was her very serious malnutrition and very poor general status (T677). 106 Dr Kesson had never seen eczema this severe. She observed that there was significant ulceration of the skin, and suspected strongly that there was a lot of tissue fluid leaking through the skin which was moist and subsequently colonised, and then infected, with pseudomonas aeruginosa (T679). Dr Kesson considered that the ulcerated skin would have been painful, and that every time Gloria passed urine she would have acid ulcers on her skin which would have been extremely painful (T680). Dr Kesson concluded that, if medical help had been sought as soon as Gloria had returned to Australia, her life would have been prolonged (T682). 107 Dr Alyson Kakakios is a paediatric immunologist at the Children's Hospital, Westmead. Dr Kakakios relied on photographs of Gloria to assist her expression of opinion. Dr Kakakios considered that malnutrition had clearly been present for some time, possibly from six months of age and had not been appropriately managed (T776). Dr Kakakios believed that Gloria had been seriously ill for several weeks (T776). It was the opinion of Dr Kakakios that, if Gloria had been brought to hospital a week earlier, her life could have been saved (T778). From the report, Dr Kakakios considered that Gloria was manifesting a degree of malnutrition which was severe, that she had peripheral oedema (a swelling of the limbs) and was otherwise grossly underweight for her age (T778). Dr Kakakios observed that children with a severe degree of inflammation such as Gloria's eczema, feel extremely unwell, do not have appetite and in general cannot take in the amount of nutrition that is required (T778). With the degree of inflammation which Dr Kakakios considered that Gloria had experienced, she believed that Gloria would have been in pain for weeks (T779). 108 Dr Frank Martin is a paediatric ophthalmologist at the Children's Hospital, Westmead. Dr Martin considered that Gloria's right eye could possibly have retained some vision if she had survived but the left eye would most likely have been blind. In the days prior to her admission on 5 May 2002, Dr Martin considered that Gloria's corneas would more than likely have some haze, and he would have expected her eye to have lost its clarity and taken on a greyish appearance (T800). In Dr Martin's opinion, Gloria would have experienced photophobia (sensitivity to light) and pain in both eyes, as even a tiny ulcer on the cornea causes severe pain (T801). Dr Martin considered that the changes in Gloria's eye would have been noticeable to the naked eye several days prior to her admission on 5 May 2002 (T802). 109 The expert medical evidence recently summarised supports and reinforces findings which I have made concerning the longevity of Gloria's eczema, its obvious physical manifestations and the detrimental consequences upon Gloria's general health. In addition, this evidence emphasises the prospect of Gloria being treated, with the prospect of being saved, if she had received appropriate medical treatment in the days following 27 April 2002.

[40]

Subjective Circumstances of the Offenders 112 I have referred earlier to the personal circumstances of the Offenders, including age, background and education. Each Offender has no prior convictions. There is a substantial body of evidence adduced in the case of each Offender of their good works in India and in Australia. 113 Each Offender had the benefit of a supportive and stable upbringing, a supportive family and significant educational opportunities in India. 114 Character evidence was adduced in the case of each Offender, with oral evidence being given in the case of Thomas Sam, in addition to documentary character evidence. 115 The Offenders have been members of a Christian church in India and Australia. Friends and associates from the church provided character evidence for each Offender. 116 Professional, medical and homeopathic colleagues of Thomas Sam provided evidence of his capacity and character, as did some of his patients. A pro-forma reference was signed by some 185 persons, including friends and family. 117 I note that a referee for Manju Sam, Dr John Ashton, a dentist who has known her since 1998 in connection with her employment with HCF, described her as a "compliant and rather non-assertive woman who was deferential to authority". 118 Work colleagues of Manju Sam provided character evidence concerning her character and capacity. 119 Thomas Sam was a hard-working homeopath. Positive evidence was tendered in his case concerning his reputation and capacity as a homeopath. As a result of these proceedings, he will lose his professional capacity to practise in Australia. 120 Manju Sam worked consistently in a responsible administrative position in Sydney before and after Gloria's death. The evidence points to her reputation and capacity in that employment. 121 A three-year old son was born to the Offenders in 2006. A report of Dr Christopher Lennings, psychologist, addressed the adverse impact upon this child if the Offenders were imprisoned. Dr Lennings said that the boy presented as a reasonably well-adjusted child and that deleterious consequences to him would flow from the imprisonment of both of the Offenders. Other evidence established that the boy had been treated successfully for eczema by a combination of conventional medicine and homeopathy. 122 Psychiatric and psychological reports were tendered with respect to the Offenders. Dr Katie Seidler, psychologist, saw Manju Sam on 16 June 2009 and furnished a report. Dr Seidler referred to Manju Sam's difficulty in coping in 2002 and raised the prospect that she was depressed at the time. Her report described ongoing symptoms of anxiety and stress in relation to Gloria's death. 123 Dr Stephen Allnutt, psychiatrist, examined Thomas Sam in custody on 29 July 2009 and 9 August 2009. Mr Troy Spiers, psychologist, had seen Thomas Sam on some 18 occasions between September 2008 and June 2009 for cognitive behavioural therapy sessions. Dr Keith Kennett, psychologist, examined Thomas Sam on 19 June 2009. 124 It was accepted by the parties before me that the psychological evidence concerning Thomas Sam and Manju Sam should not cross the barrier of expertise, so as to enter into the field of psychiatry: R v Peisley (1990) 54 A Crim R 42 at 52; R (Cth) v Petroulias (No. 36) [2008] NSWSC 626 at [164]. I approach the psychological evidence in this way, and will disregard any purported diagnosis by a psychologist of a psychiatric condition. I bear in mind, as well, that neither Offender gave evidence at the trial or in the sentencing proceedings, and that this affects the weight to be given to their accounts to the report authors: R v Qutami (2001) 127 A Crim R 369 at 377 [58]; R v Palu (2002) 134 A Crim R 174 at 184-185 [39]-[41]. 125 There is an especially significant aspect of the psychological evidence to which reference should be made. As I have said, Mr Spiers saw Thomas Sam for 18 sessions of cognitive behavioural therapy between September 2008 and June 2009. Mr Spiers described characteristics in Thomas Sam of self-grandiosity and arrogant behaviour, involving boasting of his professional credentials as a homeopath and emphasising his spiritual maturity as a Christian. Clearly, Mr Spiers was in a position to form a view concerning these features, given his extended dealings with Thomas Sam over a nine-month period. Mr Spiers observed that the attitudes and behaviour which he had seen in Thomas Sam were consistent with a provisional diagnosis of narcissistic personality disorder. Dr Allnutt, psychiatrist, did not consider that Thomas Sam qualified for diagnosis with an antisocial personality disorder, and he was unable to diagnose narcissistic personality disorder based on the information provided to him. Dr Allnutt observed, however, that Mr Spiers had seen Thomas Sam for 18 sessions and he accepted the observation of Mr Spiers that Thomas Sam manifested some narcissistic personality traits over this period. Amongst the factors which Dr Allnutt thought may have contributed to the offence by Thomas Sam was a rigid preference for homeopathic treatment approaches in dealing with Gloria. 126 Having regard to the limitations upon the use of psychological evidence in reaching psychiatric diagnoses, a clear foundation for a finding that Manju Sam was depressed at the time of the offence is not apparent. A further difficulty arises from the fact that Dr Seidler saw Manju Sam once only, in June 2009, seven years after the relevant events. There is no contemporaneous medical evidence concerning Manju Sam's condition in July 2001 - May 2002. Reference was made by counsel to Manju Sam's appearance in the record of interview of 9 May 2002. I do not think this provides a platform for a diagnosis of depression. Nevertheless, I accept that Manju Sam was experiencing some level of stress as a result of Gloria's protracted illness and that her reaction was, in these circumstances, somewhat blunted. 127 Although I accept that Thomas Sam has been affected adversely, and become depressed, as a result of these proceedings, I am not satisfied that he was suffering from any disorder at the time of the offence. Dr Allnutt's report does not support such a conclusion. Dr Kennett's report moves beyond the limits of psychological assessment, and senior counsel for Thomas Sam did not seek to rely upon it in that respect (T83-92, 13 August 2009).

[41]

Objective Seriousness of Offences 128 Implicit in the verdicts of the jury is a finding, to the criminal standard, that the Offenders fell far short of the standard of care of Gloria which a reasonable person would have exercised in the circumstances, such as to constitute gross criminal negligence. 129 The Crown submitted on sentence that these were objectively grave crimes of manslaughter, with the offence of Thomas Sam being more serious than that of his wife. The offences did not involve an isolated act or omission, but rather a prolonged, sustained and deliberate decision by each Offender, individually and jointly, not to seek proper medical attention for Gloria over a very substantial period of time. It was submitted that the Offenders' continuing course of omission resulted in their infant daughter suffering what must have been considerable pain and discomfort for most of the final five months of her life. The Crown submitted that the Offenders' omissions led to Gloria not only enduring a most extreme form of infected eczema, and a cessation of her developmental milestones, but also severe malnutrition which took time to develop. These omissions, the Crown contended, led finally to what must have been a particularly painful bilateral, and ultimately fatal eye infection. 130 It was submitted for the Offenders that they were caring parents who had taken steps to obtain assistance for Gloria from both medical and homeopathic sources. It was submitted that the Offenders were unaware of the full medical ramifications of Gloria's condition and that this served to explain their delay in taking her to hospital in May 2002. It was said that this was a case of misguided conduct by the Offenders, and not an approach of not caring at all for Gloria's welfare. 131 I must keep in mind that the offence of manslaughter by criminal negligence involves an objective test, focusing upon the response of a reasonable person to the circumstances. Nevertheless, it is relevant on sentence to have regard to any explanation or explanations for the omission by the Offenders to seek medical assistance for their daughter. 132 I am satisfied that this is a most serious case of manslaughter by criminal negligence. I am satisfied that Gloria's condition, certainly by 27 April 2002, was clearly serious and demanded proper medical treatment and that this was obvious to any reasonable parent. This is not a case of a child suffering from a serious condition which was disguised in some way. Gloria's body had been racked by eczema for a considerable period of time with associated pain and discomfort. 133 I accept that Gloria was subjected to significant pain over an extended period of time, and that the omission of the Offenders to seek proper assistance for her may be characterised accurately as cruelty. Gloria suffered helplessly and unnecessarily while suffering from a condition that was treatable. 134 I accept the Crown submission that the Offenders preferred homeopathic measures to conventional medical treatment for Gloria. I am satisfied that Thomas Sam displayed (and continued to display) an arrogant approach to what he perceived to be the superior benefits of homeopathy compared with conventional medicine. I am satisfied that Thomas Sam's approach, in this respect, operated upon the attitude of Manju Sam, who was inclined to defer to her husband on this issue. 135 I am satisfied that the aspects observed by Mr Spiers impacted upon Thomas Sam's approach to Gloria's condition, and that Manju Sam acquiesced in that approach. These factors shed light upon the gross failings of the Offenders to respond in a timely fashion, or at all, to Gloria's serious condition. Gloria was totally dependent upon her parents complying with their clear duty of care for her, and each Offender fell profoundly short of their parental obligations to their infant daughter. 136 I accept that this protracted process itself, served to blunt Manju Sam, to some extent, to Gloria's needs.

[42]

137 For the purpose of sentence, it is appropriate to characterise the case of Thomas Sam as a most serious offence of manslaughter, applying the "reasonable parent" test. He was a parent, who also happened to be a homeopath, and thus possessed the advantage of training and knowledge flowing from that qualification. This aspect serves to aggravate the seriousness of his offence by reference to the "reasonable parent" test. 138 I should, nevertheless, make findings with respect to the Crown's "reasonable homeopath" case. The only constant homeopath or medical practitioner in Gloria's life between October 2001 and May 2002 was Thomas Sam. As outlined earlier, various medical practitioners were consulted along the way, but there was no follow through. Nor was there consistent homeopathic treatment provided to Gloria throughout this period by any person, other than by Thomas Sam. 139 By the time one comes to the critical period between 27 April and 5 May 2002, it may be observed, somewhat starkly, that either Thomas Sam was treating Gloria or no one was. Although Thomas Sam sought, in his police interview, to distance himself from regular observations of Gloria in this period because of the demands of his work, I am satisfied that he had regular opportunities to observe Gloria, and to form a view concerning treatment which ought be given. The Offenders had in their possession a range of medical and homeopathic treatments, which had been accumulated from different sources. 140 I am satisfied beyond reasonable doubt that Thomas Sam was treating Gloria in the period 27 April to 5 May 2002, so that a patient-homeopath relationship existed between them at that time. This treatment was cursory, but it was treatment nevertheless. The fact that he was utilising substances obtained from different sources does not mean that he was not treating Gloria at that time. However, such treatment as he provided was grossly inadequate. 141 The universal view of homeopaths who gave evidence at the trial (Dr Scott, Ms Cresswell and Mr Katyal), was that homeopathic treatment could be tried for a period but, if there was no improvement, medical assessment was necessary. Each witness emphasised that homeopathy complemented conventional medicine, and was not intended to be a substitute for the treatment of conditions which called for conventional medical assessment and treatment. This was the professional standard which applied to Thomas Sam in Australia, a standard which he clearly breached in a grave respect. On any reasonable view, the time when homeopathy had been tried without success, and that consistent conventional medical treatment was required, was the visit to Dr Goyal on 11 January 2002. It was overwhelmingly clear that homeopathy would not suffice for the state of affairs which was apparent by 27 April 2002. 142 Accordingly, I am satisfied that the sentencing of Thomas Sam should be approached upon the basis that he is culpable with respect to both the "reasonable parent" test and the "reasonable homeopath" test. 143 I accept that Thomas Sam's offence is objectively greater than Manju Sam's offence, given his dominant role and her reliance upon his homeopathic knowledge. 144 That said, Manju Sam was the child's mother and was constantly in the presence of the child in the nine-day period up to 5 May 2002. She had ample opportunity to take Gloria to a medical practitioner or a hospital in that period, and there was no impediment to that course of action. Her explanation for not doing so referred to jetlag and tiredness. Although it may be said that Manju Sam had, to an extent, been worn down by the ongoing demands of Gloria because of her condition, I am satisfied that Gloria's condition was obvious to her, as was her pain and suffering, so that the omission of Manju Sam to obtain medical treatment in this period constituted a grave example of gross criminal negligence. Manju Sam was Gloria's mother, the person from whom, above all others, the child was entitled to expect nurture, care, sustenance and protection, and she failed the child in her most important duty, with fatal results: R v O'Brien [2003] NSWCCA 121 at [74]. 145 Relevant events occurred over an extended period of time. This was not a flawed decision made in pressured circumstances over a short period of time. 146 I am satisfied that a very wide chasm lay between the approach of the Offenders to Gloria's condition, and that which a reasonable parent would have taken in all the circumstances.

[43]

Delay and Effect of Imprisonment Upon the Offenders' Son 147 Senior counsel for each Offender pointed to the delay between Gloria's death in May 2002 and the initiation of criminal proceedings against them by the filing of an ex-officio indictment in this Court in December 2008. Evidence was given in the trial explaining this delay by reference to an extended investigation involving complex medical issues and overseas investigations, and then an inquest held in November 2007, culminating in the referral of the papers by the State Coroner to the Director of Public Prosecutions. 148 Although more than six-and-a-half years passed before criminal proceedings were commenced, the matter came to trial in this Court within six months. 149 I accept that the delay was not contributed to by the Offenders. They were interviewed by police in May 2002. They were aware that there was a possibility of criminal proceedings being brought against them thereafter. The Offenders remained in Australia, continuing their employment and, in 2006, another child was born to their marriage. I accept that the Offenders have experienced a protracted period of uncertainty and stress whilst the investigation of Gloria's death, and subsequent prosecution, were in progress. These are factors which ought be taken into account in their favour on sentence. 150 It was submitted for the Offenders that the adverse impact upon their son, if both were imprisoned, is a factor to be taken into account in their favour on sentence. It is only in exceptional circumstances that the adverse impact upon the family of offenders may be taken into account to mitigate penalty. The fact of imprisonment almost inevitably leads to hardship, sometimes very serious hardship, to third parties and justice will not be seen to be administered even-handedly if exceptions are made on this account in cases which are not truly exceptional: Hopley v R [2008] NSWCCA 105 at [39]. The children of every person who is sent to prison may suffer, in some way or other, as a result of that imprisonment. Here, the focus has been upon the impact upon the son if both parents are sent to prison. 151 The combination of delay in the investigation and prosecution, taken with the Offenders having a further child, are factors which I will take into account in mitigation of penalty. I accept that exceptional circumstances exist here which warrant the Court taking into account the adverse impact upon the Offenders' son from their imprisonment. 152 Nevertheless, it remains necessary to ensure that sentences imposed reflect the objective seriousness of the crimes and are proportionate to the criminality of each Offender.

[44]

Determining Appropriate Sentences 153 The Offenders have been found guilty of the unlawful homicide of Gloria, their infant daughter. It is necessary that the sentences to be imposed reflect a significant element of general deterrence given the need for the community to understand the serious consequences of parents breaching the trust reposed in them to care for their infant children, culminating in unlawful homicide of the child. The protection of children is of fundamental importance to society: R v Howard [2001] NSWCCA 309 at [19]. A heavy responsibility rests upon parents to care for a child who is utterly defenceless: R v Wilkinson [1999] NSWCCA 248 at [26]. The fundamental consideration is that the sentences to be imposed must accord with the general moral sense of the community: R v Foulstone (NSWCCA, 18 July 1990). 154 Without leading to a position of double punishment, the sentence to be imposed upon Thomas Sam must also reflect an element of general deterrence directed to alternative health providers who may fail to ensure a patient receives conventional medical treatment where the patient is not responding appropriately to alternative treatment. 155 It has been emphasised that the crime of manslaughter extends to a wide variety of circumstances: R v Forbes (2005) 160 A Crim R 1 at [133]-[134]; R v Jagroop [2009] VSCA 46 at [7]ff. The fundamental starting point is that the actions of the Offenders involved the criminal taking of a human life. It is the responsibility of the courts to protect and preserve human life and to punish those who unlawfully take it: R v Dawes [2004] NSWCCA 363 at [31]. 156 I have weighed the serious objective circumstances of the offences with the subjective factors which the Offenders call in aid on sentence. I take into account, in favour of the Offenders, evidence of good character and good works on their behalf and the consequences of delay, together with their current family circumstances, and the impact upon their son which would flow from their imprisonment. I have regard as well to the effective termination of Thomas Sam's career as a homeopath and the effect upon the Offenders of the publicity surrounding these proceedings. 157 It is the frequent experience of the criminal courts that offenders in cases of manslaughter of a child by criminal negligence are persons affected by social disorder, substance abuse and limited intelligence and education. This is not such a case. The Offenders are intelligent and well educated. Each had the benefit of a good and supportive upbringing in caring families. There is nothing in the backgrounds of the Offenders which assists either of them on sentence. Indeed, these features operate against the Offenders on sentence. 158 The verdicts and sentences in this case do not involve some adverse judgment on the practice of homeopathy. The evidence reflected that homeopathy has a significant role to play in the community, as a complement to conventional medicine, for a range of conditions. However, the unanimous view of homeopaths who gave evidence at the trial was that the limitations of homeopathy must be kept in mind, and that referral to medical practitioners was both appropriate and necessary where improvement was not manifest from homeopathic treatment. This case does not concern the failure of homeopathy. Rather, it concerns the gross criminal negligence of two parents who failed to ensure that their infant daughter received necessary and appropriate medical care and attention for a treatable condition. 159 Both Offenders have limited insight into their offences which bears upon the question of contrition and remorse. I have set out at length, earlier in these reasons, my findings by reference to the evidence so that the Offenders and the community may understand what it is that they are being sentenced for. Dr Lennings observed that the Offenders, on 25 June 2009, "tell me they feel frustrated that they lost their child (Gloria) and they are being blamed for it, and they find that hard to bear, given their deep grief at the death of their daughter" (Dr Lennings' report, 27 June 2009, page 2). On the totality of the evidence now adduced, I am satisfied that Manju Sam has developed some insight into the nature of her offence, but that Thomas Sam continues to see the blame for his daughter's death lying with others. It is necessary that the sentences to be imposed make the Offenders accountable for their criminal conduct which led to Gloria's death: s.3A(e) Crimes (Sentencing Procedure) Act 1999. 160 The sentences to be imposed must also denounce the conduct of the Offenders in failing grossly to take necessary and readily available action to treat Gloria's curable condition (s.3A(f)) and must recognise the harm done to the victim, Gloria, and the community (s.3A(g)). 161 The sentences to be imposed must be seen to have a reasonable proportionality to the objective circumstances of the Offenders' crimes. It is important for the Court to ensure that the subjective circumstances of the Offenders do not divert the Court from imposing sentences which adequately reflect the part which the law must play in upholding the protection of human life and punishing those who take it: R v MD (2005) 156 A Crim R 372 at [65]. 162 In the course of submissions, I was referred to other sentencing decisions in cases of manslaughter by criminal negligence. Apart from statements of principle in these cases, I do not derive assistance from them in determination of sentence. Although there are different categories of manslaughter, there is no hierarchy of seriousness between different classes of manslaughter: R v Isaacs (1997) 41 NSWLR 374 at 381. It is not the variety of manslaughter, but the facts which determine the objective gravity of the offence: R v Dalley (2000) 115 A Crim R 582 at [64]. 163 I accept the Crown submission that the offence of Thomas Sam lies at the higher end of the scale of seriousness for offences of manslaughter by criminal negligence. I accept that the objective seriousness of the offence of Manju Sam lies below that of her husband. In all the circumstances, a sentence of full-time imprisonment ought be imposed upon each Offender, with a shorter period of imprisonment to be imposed upon Manju Sam to reflect her lesser criminality. 164 I have taken into account all subjective factors in the determination of sentence, including the impact of imprisonment upon the Offender's son. When considering the issue of "special circumstances" under s.44(2) Crimes (Sentencing Procedure) Act 1999, the Court should not double count factors already taken into account: R v Fidow [2004] NSWCCA 172 at [18]. Accordingly, I make no finding of "special circumstances" with respect to each Offender. 165 Thomas Sam has been in custody for this offence since 2 July 2009, and I will direct that his sentence operate from that date. Manju Sam has been on bail at all times and her sentence should date from today. 166 Thomas Sam, for the offence of manslaughter of Gloria Mary Thomas, I sentence you to a non-parole period of six years to date from 2 July 2009 and to expire on 1 July 2015 with a balance of term of two years to commence on 2 July 2015 and to expire on 1 July 2017. 167 Manju Sam, for the manslaughter of Gloria Mary Thomas, I sentence you to a non-parole period of four years to date from 28 September 2009 and to expire on 27 September 2013 with a balance of term of one year and four months to commence on 28 September 2013 and to expire on 27 January 2015. **********

At a glance

Court

Decision date

Before

Source

Judgment (45 paragraphs)

Cases Cited (11)

Cited By (3)