Regina v Hall [1999] NSWSC 738 | Case summary

1 HER HONOUR: On 29 March 1999 Susan Maria Hall and Colin George Hanslow appeared before me together with a co-accused, Colin David Simpson. On that occasion, Susan Maria Hall pleaded guilty to one count on indictment charging her with the manslaughter of Gary Henderson on a date between 19 August and 26 August 1996. Colin David Simpson pleaded guilty to maliciously inflicting grievous bodily harm upon Gary Henderson on or about 19 August 1996. Colin George Hanslow was not represented on that occasion and I stood his matter over, without taking a plea, to enable him to obtain a grant of legal aid. 2 The proceedings against Hall and Simpson were stood over for submissions on sentence. On 4 June 1999 I sentenced Colin David Simpson to a term of twelve months penal servitude comprising a minimum term of eight months and an additional term of four months. It should be noted that this sentence was expressed to take into account the circumstance that Mr Simpson had already served, prior to his release on bail, a period of two years and twenty-six days custody solely referable to the commission of the subject offence. 3 On 27 May 1999 when the matters of Hall and Simpson were listed before me for submissions on sentence Colin George Hanslow was arraigned on an indictment which charged him with the manslaughter of Gary Henderson and with being an accessory after the fact to the infliction of grievous bodily harm upon Gary Henderson by Colin Simpson. He pleaded not guilty to the manslaughter count and guilty to the accessory count. Both matters were stood over to 16 July. It was anticipated that the Director of Public Prosecutions would give consideration in the interim as to whether it was proposed to proceed on the manslaughter count. In the event, I was informed on 16 July, that the Crown did not propose to proceed with respect to that matter. 4 The body of the deceased, Gary Henderson, was found on the afternoon of 28 August 1996 lying on a mud bank adjacent to the water's edge near the Silverwater boat ramp at Lansvale. The deceased was a single man aged about 35 years. He suffered from cerebral palsy. Both his left arm and left leg were wasted. Additionally it appears that he was intellectually disabled. He was a slightly built individual. Dr Ellis, pathologist, examined the body at the site and subsequently conducted a post mortem. The doctor concluded that death was caused as the result of head, chest and abdominal injury, compression of the neck, probable immersion/drowning. 5 The police investigations revealed that the deceased had been living in a caravan at the Lansvale Caravan Park with Susan Hall and her de facto partner, Colin Hanslow. Colin Simpson was on friendly terms with both Hall and Hanslow and on occasions he visited them at the caravan park. All three suffered to some degree from intellectual handicap. 6 The caravan appears to have been rented by Susan Hall and Colin Hanslow. The deceased came to stay with them some weeks prior to his death. He had given Ms Hall his bank "Handycard". It appears that the proceeds of his pension were withdrawn from his account by Ms Hall who used the funds for the purchase of food and other necessities. In this sense Ms Hall assumed some responsibility for the care of the deceased. 7 On or about 19 August 1996 the prisoner, Colin Simpson, inflicted a severe beating on the deceased. This occurred in the caravan. From that time on the evidence suggests that the deceased did not leave the caravan prior to the evening of 26 August when he was transported from there to the vicinity of the boat ramp. At that time the likelihood is that he was dead. The latter conclusion cannot be assumed with confidence since Dr Ellis was not able to exclude drowning as a cause of death. 8 In the period preceding the assault upon the deceased it would seem there had been some tensions in the caravan. The deceased had difficulty in attending to matters of personal hygiene and this became a source of some frustration to Ms Hall and Mr Hanslow. It also appears that the deceased was believed to have given out Ms Hall and Mr Hanslow's silent telephone number to some unnamed person or persons. Finally there was a suggestion that the deceased was a child molester (there is no evidence to suggest this was the case). A combination of these matters appears to have led Colin Simpson to embark on his assault on the deceased. 9 There is little evidence as to what happened in the period of about a week following that assault prior to the deceased's death. 10 On the evening of 26 August Susan Hall and Colin Hanslow were observed carrying the body of the deceased from the caravan and placing it in the rear of their panel van. From there the body was transported to the vicinity of the Silverwater boat ramp. 11 The basis upon which the Crown put its case against Susan Hall, and upon which the plea was entered, was that of manslaughter by omission. It is common ground that in the period following the assault upon the deceased by Colin Simpson, Susan Hall ought to have obtained medical assistance for him and that she failed so to do. The Crown case against Colin Hanslow depends wholly upon his actions in assisting in the removal of the deceased from the caravan and placing his body near the Silverwater boat ramp. 12 I will deal firstly with the prisoner Susan Hall. On 27 May 1999 when I heard submissions on sentence with respect to both Ms Hall and Colin Simpson, a set of agreed facts was tendered and became Exhibit Q in the proceedings. On that occasion a submission was advanced on the prisoner's behalf that her culpability with respect to the failure to obtain medical assistance needed to be evaluated in the light of her intellectual handicap. I subsequently sought further submissions from both the Crown and on behalf of the prisoner as to the basis upon which the plea had been entered. The agreed facts, while setting out quite a deal of background material, did not, in terms, identify the facts relied upon as establishing either the legal duty to which it was said Susan Hall was subject nor the particulars of breach of that duty in terms of the failure to provide assistance. 13 It is plain that at common law a person does not incur criminal liability in respect of his or her failure to take action to prevent the occurrence of harm to another: R v Taktak (1988) 34 A Crim R 334. Before a person may be convicted of manslaughter by omission it is necessary to identify a legally recognised duty to act to which the accused was subject. One recognised duty is that of a person who voluntarily assumes the care of another who, by reason of age or incapacity, is unable to care for him or herself. The failure to provide medical assistance and/or food to that person may expose the carer to liability for manslaughter. This is the basis upon which the case against Ms Hall is put. The Crown points to Ms Hall's acknowledgment, in a statement that she made to police, that she was aware that Gary Henderson suffered from cerebral palsy. Reliance is also placed on the financial arrangements between the deceased and the prisoner involving her assuming the custody of his Handycard and purchasing food and other necessities on his behalf. The Crown points to admissions by Hall as to her knowledge of the infliction of injuries upon the deceased by Simpson during the course of the assault on 19 August. There is evidence from Dr Ellis that the deceased had bed sores. The Crown does not suggest, having regard to Ms Hall's intellectual limitations, that the appearance of bed sores should have alerted her to the need to turn the deceased in the bed. Rather, the Crown points to the evidence as to the bed sores as showing that in the week following the assault by Colin Simpson the deceased was immobile in bed. Such a view receives support from the evidence of the witness, Vanessa Jett, who called to the caravan on an occasion after the assault. She observed that Gary Henderson was lying inert on his bunk. She spoke with him and observed that he was bruised. 14 Mr Rumore who appeared on behalf of Ms Hall on the last occasion conceded that it was open to me to find that, in the days following the assault by Colin Simpson, the deceased was immobile. He accepted, as must flow from the plea, that despite her intellectual deficit Ms Hall had the capacity and did know that Gary Henderson's injuries were such that he required medical attention. It is upon this basis that I approach the matter of sentence in the case of the prisoner Susan Hall. 15 I have the benefit of a helpful and detailed report by G.D. Fathers, psychologist, who assessed Ms Hall shortly before these proceedings. That report describes her background. The prisoner is an unemployed 37 year old woman in receipt of a disability support pension. She has been a recipient of such a pension since about 1978. Both Ms Hall's parents are deceased. She gave Mr Fathers an account of growing up in a home characterised by frequent violent episodes by her father. She was aged about 6 or 7 when he died. Her mother died in 1978 when she was about 17. 16 It appears that prior to her mother's death Ms Hall had been made a State Ward. She had had frequent contact with the Department of Youth and Community Services up until the age of about 21 years. More recently, she appears to have had contact with officers of the Department of Community Services on occasions, although the reasons for that were not clear. 17 The prisoner's schooling was limited. She attended "Mater Dei" in Camden which catered for the intellectually handicapped and learning disabled. Most of the focus of activities at "Mater Dei" appears to have been of a diversionary nature with an emphasis on practical skills such as craft work, social interaction and the development of personal routine. After leaving "Mater Dei" she lived for a time at a place called "Brushfarm" at Eastwood. Mr Fathers describes this as an institution for people with intellectual impairment and pervasive developmental disorders. The prisoner appears to have left Brushfarm when aged about 17. From there she went to live in a hostel in Wollongong where she remained for several years. That hostel also served as a sheltered workshop and training centre. 18 When she was aged about 20, the prisoner moved to Sydney. Some time following that move she met her de facto husband, Colin Hanslow. She appears to have been in a relationship with Mr Hanslow for most of her adult life. She has no work history apart from the time spent in work preparation centres or sheltered workshops. Mr Fathers summarises the position in this way: "Ms Hall presents as intellectually impaired and therefore not fully able to think and reason. She has a history of living in personally and socially impoverished circumstances, supported by pension assistance. While functional in a personal and social sense, Ms Hall can only manage a limited routine and does need assistance and re-assurance in this. She has no work history and no work task skill set. Her education was very limited and interrupted by her intellectual impairment and other learning disability, her need for institutional care due to family dysfunction and neglect and Ms Hall's sometimes difficult behaviour." 19 I have also been supplied with a psychiatric report prepared by Dr Lucire. Dr Lucire notes that Ms Hall "is a mentally retarded person and has been so from birth". She goes on to observe: "The intelligence tests show a high degree of scatter so there is a lack of evenness in her functioning. Some of the more subtle mental capabilities might be entirely absent."

Dr Lucire also expressed the following opinion: "It is apparent to me that she knows what has happened is wrong. She now knows that she should have done something to stop it. However it is not possible to know exactly what went through her mind at the time except from her actions." 20 I note this observation since it might be thought to not sit well with the prisoner's plea. As I have already noted, I stood this matter over to enable the basis of the plea to be clarified and I am satisfied that notwithstanding her limitations the prisoner had assumed responsibility for the care of the deceased and that she failed to obtain assistance when she knew she ought to have done so. In this regard I take into account the contents of the prisoner's ERISP. 21 On behalf of the prisoner it has been submitted that I might impose a non-custodial sentence. It is put that this unusual course is open having regard to the circumstance that this is a case of manslaughter by omission where the prisoner's culpability is mitigated by intellectual impairment. I should note that the Crown submitted that in the circumstances of this case a non-custodial sentence was within the range of the proper exercise of my sentencing discretion. 22 I am mindful of the observations of the Court of Criminal Appeal in R v MacDonald (unreported, NSWCCA, 12 December 1995). In that case the court emphasised the denunciatory role of sentencing in the context of manslaughter. After noting that manslaughter involves the felonious taking of human life the court observed: "This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system." 23 This is a case where I consider that the prisoner's intellectual limitations do operate to significantly mitigate her culpability. This leads me to give less weight to considerations of general deterrence than might otherwise be appropriate: R v Scognamiglio (1991) 56 A Crim R 81; R v Anderson [1981] VR 155; R v Letteri (unreported, NSWCCA, 18 March 1992); and R v Wright (unreported, NSWCCA, 28 February 1997). 24 I accept that the prisoner pleaded guilty at the first opportunity. This is taken to reflect a degree of contrition. There is nothing to suggest contrition going beyond this but I accept that flows from her intellectual limitations. 25 The prisoner's criminal record is not an extensive one. It appears that in October of 1981 she was convicted before the Central Court of Petty Sessions of offences of forge, utter and stealing and placed on a recognisance. The only other matter is an entry in February of 1989 when she was convicted before the Katoomba Local Court on a charge of malicious damage and again placed on a recognisance. I do not consider the criminal record stands in the way of extending some leniency to this prisoner. 26 Following her arrest, Ms Hall was in custody for a period of about two months prior to her release on bail. She has been at liberty on bail for a period of almost three years. During that time she has reported daily to police. At times she has been subject to residential requirements as a condition of bail. Most recently she was subject to a condition that she reside at "Samaritan House" an institution operated by the Salvation Army. Captain McGrath gave evidence on 26 May that Ms Hall had been compliant with the house curfew and other of the rules of that establishment. Subsequently, there was an unfortunate development which was not the fault of the prisoner. On 3rd June, Captain McGrath attended court together with the prisoner and other residents of "Samaritan House". On that occasion, Colin Simpson was sentenced. For the first time Captain McGrath and the other residents of the house became aware of the unpleasant nature of the assault committed by Simpson on the deceased. It appears that after this the residents complained to Captain McGrath that they did not wish to be further associated with the prisoner. In those circumstances, Captain McGrath asked Ms Hall to leave. Major Harmer, the Salvation Army Court Chaplain, contacted Ms Hall's solicitor who in turn drew the matter to the attention of the court. Major Harmer used his best endeavours to find alternative accommodation for the prisoner. The only accommodation that he was able to arrange was at the Sydney Central Hotel. The prisoner's bail was varied to permit her to reside at that establishment. When the matter was before me on the last occasion I was advised that the prisoner did not intend to remain resident at the Sydney Central Hotel. Her sole income is the disability pension and the hotel was too costly. The matter was stood over with the prisoner's bail continued subject to her accepting the reasonable direction of a representative of the St Vincent de Paul Society who indicated a willingness to assist with her care in the interim. 27 I have determined that this case falls into the exceptional category of cases where a non-custodial sentence is appropriate in respect of a conviction for manslaughter. This is not a case where the deceased's death was brought about by the deliberate act of the prisoner. Her failure to obtain medical assistance was a continuing one and callous however that must be evaluated in the context of her level of intellectual functioning. 28 I note that Dr Lucire observed in the course of her report that this prisoner's capacity to do community service is limited. I have little difficulty in accepting that to be the case. This was not a case where either the defence or the Crown submitted I should give consideration to alternative sentencing options such as community service or periodic detention. It was for this reason that no pre-sentence report was sought. 29 In all the circumstances I consider that an appropriate sentence is a lengthy recognisance conditioned upon acceptance of the supervision of the Probation and Parole Service. The prisoner does appear capable of complying with whatever reporting conditions that Service deems appropriate. 30 Susan Maria Hall, you are convicted of the manslaughter of Gary Henderson. I defer passing sentence upon you and order your release upon you entering into a recognisance without surety in the amount of $300 to be of good behaviour for a period of five years and to come up for sentence if called upon. It is a condition of this recognisance that you accept the supervision and direction of the Probation and Parole Service. You are to report to the Sydney office of the Probation and Parole Service within 72 hours of your release on this recognisance. 31 I turn now to the case of Colin George Hanslow. Mr Hanslow pleaded guilty at the first opportunity to an offence of being an accessory after the fact to the malicious infliction of grievous bodily harm upon Gary Henderson. The maximum penalty in respect of this offence is one of five years penal servitude. I take into account not only Mr Hanslow's plea of guilty at the first opportunity but also the circumstance that he entered that plea at a time when the Crown had not determined whether to proceed in relation to the more serious offence of manslaughter. I view the plea as evidencing a real degree of contrition having regard to that circumstance. 32 A report from Dr Westmore, psychiatrist, was tendered on the prisoner Colin Hanslow's behalf. I have found that report most helpful. 33 Mr Hanslow, in contrast to his co-accused Colin Simpson and Susan Hall, is not described as suffering from any intellectual deficit. However, I do note that Dr Westmore describes him in these terms: "His speech was slow and I gained the impression that he was of dull intelligence." 34 He is a man of 43 years. He has been engaged in a long-term relationship with his co-accused, Susan Hall. Mr Hanslow described an unhappy childhood associated with periods of time spent in institutions. He has a quite lengthy criminal history commencing when he was aged only ten years. He told Dr Westmore that he had spent time in juvenile facilities in Mittagong, Dharruk and Mt Penang. His schooling was limited. The criminal record reflects his account of a disturbed and unhappy childhood; while still a juvenile there are entries for being under the influence of alcohol on railway property and vagrancy. 35 The prisoner's criminal record continued in his adult life and includes convictions for offences of dishonesty. Most significantly in October 1979 he was charged with an offence of 'conspiracy to commit armed robbery' for which he was later convicted by the District Court at Parramatta and sentenced to a term of three years penal servitude with a non parole period of twelve months. The record does not assist the prisoner however I do note that since his release from custody in 1982, following a conviction for the theft of a motor vehicle, his pattern of offending behaviour declined significantly. This period of reduced criminal offending appears to correspond with the formation of his relationship with his co-accused, Susan Hall. 36 I note that this prisoner served twelve months and twenty nine days in custody on remand prior to his release on bail with respect to this matter. Following his release it was a condition of his bail that he report three times weekly to the officer in charge of Mount Druitt Police Station. He has done this without fail for the past two years. 37 Mr Giddy who appears for Mr Hanslow has drawn attention to Dr Westmore's opinion that Mr Hanslow may well have been a somewhat passive person in his relationship with Susan Hall and that he may have been emotionally overwhelmed by Susan Hall and Colin Simpson in combination. Mr Giddy notes, by reference to the evidence given by Raymond Neaves at committal and the observations of the Kanizay family made on the evening of 26 August 1996, that the prisoner presented as a quiet and passive individual somewhat under the sway of his de facto partner. I accept that to be the case. 38 Mr Giddy also places emphasis on the evidence of Raymond Neaves that during Simpson's assault on the deceased the prisoner called out for him to stop it on more than one occasion. When Vanessa Jett called to the caravan she saw the prisoner give the deceased a cigarette when asked to do so but that he was unwilling to give further cigarettes in the presence of Colin Simpson and Susan Hall. 39 I accept that the prisoner ineffectually sought to have Colin Simpson break off the assault. I also accept that he showed some kindness to the deceased notwithstanding the social pressures on him, having regard to the peculiar dynamics of the group, not to do so. 40 In the light of Mr Hanslow's plea, and having regard to the circumstance that he has spent over twelve months in custody in relation to this matter and accepting as I do that he endeavoured, at least verbally, to have Colin Simpson desist from his attack on the deceased, I am of the view that this is an appropriate case in which I should impose a non-custodial penalty. 41 I note that Dr Westmore is of the opinion that Mr Hanslow would benefit from psychological counselling which might assist him in understanding the role that his passivity played in the subject events. I propose releasing the prisoner upon recognisance conditioned that he accept the supervision and direction of the Probation and Parole Service. The question of counselling can be addressed by that Service if it is considered appropriate. 42 Colin George Hanslow, you are convicted of the offence of being an accessory after the fact to the malicious infliction of grievous bodily harm upon Gary Henderson between 19 August 1996 and 26 August 1996. I defer passing sentence upon you and order your release upon you entering into a recognisance without surety in the amount of $300 to be of good behaviour for a period of two years and to come up for sentence if called upon. This recognisance is conditioned upon you accepting the supervision and direction of the Probation and Parole Service. You are to report to the Blacktown office of the Probation and Parole Service within 72 hours of your release upon this recognisance. **********

Regina v Hall

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