Verdict - Alternative verdicts - Included offences - Whether count of intentionally causing injury included allegation of recklessly causing injury - R v Salisbury [1976] VicRp 44; [1976] VR 448, followed; R v Wilson [1984] AC 242, distinguished - Crimes Act 1958, s 421(2).

Practice and procedure - Amendment - Presentment - Whether open to amend presentment after accused put in charge of jury - Whether open to amend presentment preferring count of intentionally causing injury, to add count of recklessly causing injury, after jury retired to consider verdict - Observations as to desirability of re-arraigning accused following amendment - R v Martin [1962] QB 221, Reg v Johal [1973] 1 QB 475, applied; R v Hoser [1998] 2 VR 535, R v Ernst [1984] VR 598, R v Radley (1973) 15 Crim App R 394, 404 referred to - Crimes Act 1958, s 372(1); Indictments Act 1915 (UK), s 5(1).

Sentencing - Manslaughter by criminal negligence - Aggravating circumstances - Whether judge erred in treating applicant's acceptance of victim's rejections of offers of assistance as aggravating circumstance or absence of mitigating circumstance - Manifest Excessiveness - Whether sentence of five years' imprisonment with non-parole period of three years manifestly excessive.

Applications for leave to appeal against conviction and sentence dismissed.

1 Following a trial in the Criminal Division, the applicant was convicted of one count of the manslaughter by criminal negligence of his de facto wife, Nola Joan Ritter, at Noble Park on 21 May 2006, and one count of recklessly causing her injury, and he was sentenced therefor to a total effective sentence of five years' imprisonment[1] with a non-parole period of three years. He now applies for leave to appeal against conviction and sentence.

2 The applicant and the deceased were alcoholics who lived together as de facto man and wife and who spent the better part of their combined social security benefits in purchasing cheap cask wine which they consumed in large quantities on a daily basis.

3 On 20 May 2006, they spent most of the day together drinking in accordance with their usual practice and, at some point during that drinking session, the applicant gave the deceased what he described as a 'back hander' which split her lip.

4 Later, when both of them were profoundly drunk, they argued over who should have the last cup of wine. During that dispute, the applicant swung his cup at the deceased, striking her on her head. The blow was administered with sufficient force to break the cup handle and resulted in a cut to the back of the deceased's head which measured 40 by 12 millimetres and penetrated the full thickness of the skin through to the muscle. Those are the facts which comprised the count of recklessly causing injury.

5 A short time later, the applicant and the deceased went to bed together. When the applicant woke at about 7.00 am he found the pillows and sheets soaked with blood. The deceased then moved out of the bed and went to sleep on the bedroom floor. The applicant got up intending to go back to sleep in the sitting room. He then saw blood all over the kitchen and bathroom floors and, at some point, made some desultory efforts to clean it up.

6 He later told police that he repeatedly offered to take the deceased to a doctor or to call an ambulance, but he did not at any time attempt to bandage the wound or otherwise staunch the flow of blood.

7 At about 9.00 or 10.00 am, the applicant left the deceased and drove to his brother's home where he spent the remainder of the day watching football on television and drinking beer. He did not mention the deceased's condition to his brother.

8 At about 5.30 or 6.00 pm the applicant returned home and found the deceased lying dead on the floor. He drove back to his brother's house, distraught. His brother's partner called an ambulance. She and the applicant and his brother then returned to the applicant's home.

9 According to expert evidence adduced at trial, the cause of death was the interaction between blood loss from the deceased's head wound and pre-existing conditions of an enlarged heart and alcohol-related liver disease. Medical intervention would have increased her chances of survival. Those are the facts which comprised the count of manslaughter caused by criminal negligence.

10 In sentencing the applicant, the judge observed that the jury were to be taken as having found that the applicant's failure to take steps to staunch the blood flow, or to obtain medical or other intervention, so far fell short of the standard of care that a reasonable person would have exercised in the circumstances, and involved such a high risk of causing death or really serious injury, that it warranted criminal punishment.

The two ways in which the case in manslaughter was left to the jury

11 The Crown put its case in manslaughter by criminal negligence on two alternative bases, namely: (1) that, by the applicant's wrongful act in striking the deceased on the head, he placed her in a position of peril or danger and thereby came under a duty to take reasonable steps to obviate the danger;[2] and (2) that, as the deceased's de facto husband, the applicant owed to her a duty to provide her with proper attention if, by reason of illness or other infirmity, she were left helpless or unable to care for herself.[3] The Crown contended that, on either basis, the applicant's failure to summon medical assistance or otherwise care for the deceased was a breach of duty which fell so greatly short of the standard of care which a reasonable man would have exercised in the circumstances, and involved such a high risk of causing death or really serious injury to the deceased, as to merit criminal punishment.[4]

12 Consistently with those contentions, the judge instructed the jury as follows:

...before there can be negligence there must be a duty of care which is owed at law and a breach of that duty. ...

When will the duty of care arise? For the purpose of this case there are two circumstances where at law a duty arises. The first is ... where a person by his deliberate wrongful act places another in peril or in danger, he has a duty to take reasonable steps to remove that danger or peril. So that is the first one. The second one which arises, or potentially arises in this case is...where persons live together as domestic partners and one of them is rendered helpless through illness or injury the other has a duty [to] take reasonable steps to provide the helpless person with proper attention.

If you find that there is a duty, then you must consider the issue of breach.

...And it is not just any breach of the duty which is sufficient here, because we are dealing with criminal negligence. A breach of a duty of care is not sufficient. What is required is such a great falling short of the standard that a reasonable person would have exercised, that is the standard that the duty of care required, and involved such a high risk of causing death or really serious injury, that it deserves to be criminally punished.

13 Originally, there were four grounds of appeal. Under Ground 1, it was contended that it was not open to conclude that a man owes a duty of care at law to his de facto wife to take steps to provide her with proper attention if she is rendered helpless through illness or injury. Not surprisingly, that contention was abandoned at the outset of oral argument and, in those circumstances, we say nothing more about it.[5]

14 The applicant was presented and arraigned on one count of manslaughter by criminal negligence and one count of intentionally causing injury. At the conclusion of the Crown case, the judge broached with counsel the question of whether to leave the offence of recklessly causing injury to the jury as an alternative to the count of intentionally causing injury. Defence counsel submitted that it was not included in the pleaded allegation and so should not be left as an alternative. The prosecutor submitted that it was included and thus that it should be left as an alternative. The judge adopted the latter course. Under Ground 2(a), it was contended that the judge was in error to do so.

15 At common law, which was at relevant times embodied in s 421(2) of the Crimes Act 1958, it is open to a jury to convict an accused of a lesser offence than the charged offence but only if the definition of the charged offence necessarily includes the definition of the lesser offence and it is an offence of the same degree.[6] As was explained in R v Salisbury,[7] the question of whether a lesser offence is necessarily included in the definition of a charged offence must be determined upon a consideration of the terms in which the charged offence has been laid. It follows that, in order to be an included offence, the offence must be capable of being established by proof of the same or less than the facts required to establish the charged offence. In the result, an offence is not an included offence unless one can say of it that the elements of every instance of the charged offence necessarily include all the elements of the included offence.

16 A charge of recklessly causing serious injury is not necessarily included in a charge of intentionally causing injury. Intention implies foresight of result either as a probability or as a possibility. Contrastingly, in the sense in which recklessness constitutes an element of the offence of recklessly causing injury, it requires foresight of result as a probability.[8] Consequently, one cannot say that all the elements of recklessly causing injury are necessary ingredients of the offence of intentionally causing injury or, to put it another way, one cannot say that every instance of the offence of intentionally causing injury is constituted in part by all of the elements of the offence of recklessly causing injury.[9]

17 In England, the position is no longer the same. In R v Wilson[10] the House of Lords held that an offence can be an included offence even though it need not be proved to establish the offence charged. Their Lordships considered that it is sufficient if allegations in the indictment are capable of including an allegation of the lesser offence. Obviously, if that applied here, one could say that the offence of intentionally causing injury included the offence of recklessly causing injury. But although Wilson was based on s 6(3) of the Criminal Law Act 1967 (UK), to which s 421(2) of the Crimes Act 1958 is similar, the decision has been robustly criticised[11] and thus far it has not been adopted in this country.[12] Accordingly, in our view, the judge was in error in leaving the offence of recklessly causing injury to the jury as an included offence.

18 For the reasons which follow, however, we do not consider that it was a material error. Ultimately, the presentment was amended in a manner which overcame the problem.

19 Pursuant to s 421(2) of the Crimes Act 1958, the judge directed the jury that they could not bring in a verdict on the 'included offence' of recklessly causing injury unless they found that the applicant was not guilty of the charged offence of intentionally causing injury.[13] Later, the jury came back and through the foreman informed the judge that they were still in disagreement over the count of intentionally causing injury, and were going to remain in disagreement over that count, but that they had reached a verdict on the 'included' count of recklessly causing injury.

20 In order to overcome the difficulty thus created, the prosecutor applied for an order, pursuant to s 372(1) of the Crimes Act 1958, that the presentment be amended to substitute the count of recklessly causing injury for the count of intentionally causing injury, and the judge ordered that it be so amended. Having then explained to the jury the effect of the amendment, namely, that the jury were now required only to say whether or not the applicant was guilty of the offences of manslaughter and recklessly causing injury, the judge asked the jury to retire again, which they did, and then later still returned a verdict of guilty on both counts.

21 Under Ground 2(b), counsel for the applicant submitted that it was not open to the judge to allow the presentment to be amended in that fashion, because it amounted to laying a new count of recklessly causing injury and because there was no power in s 372(1) to include a new count in a presentment after an accused has been put in the charge of the jury.

22 We reject that submission. There is no doubt that the amendment amounted to adding a new count to the presentment. But we consider that s 372(1) included a power to add a new count 'unless having regard to the merits of the case the required amendments cannot be made without injustice'.

23 As counsel emphasised, s 372(1) provides that an amendment may be made only 'if it appears to the court that the presentment is defective'. But it has been held by the English Court of Criminal Appeal that a 'fairly liberal meaning' should be given to the language of s 5(1) of the Indictments Act 1915 (UK) and, therefore, an indictment may be 'defective' if it fails to allege an offence disclosed by the depositions.[14] We see no reason to think that the Victorian Parliament intended that s 372(1) be given a different meaning.[15] The English Court of Appeal has also held that such an amendment may be made after the accused has been arraigned and put in charge of the jury, provided that it does not cause an injustice.[16] Similarly, it has long been the law in this state that s 372(1) allows for some forms of amendment after an accused has been put in charge of the jury; in some cases even after a conviction has been entered.[17]

24 Counsel for the applicant prayed in aid Maher v The Queen,[18] in which it was held that ss 567 and 572 of the Criminal Code (Qld) and s 21A of the Crimes Act 1914 (C'th) did not authorize an amendment to an indictment by adding counts. The Queensland provisions, however, were in very different form to s 5(1) of the Indictments Act 1915 (UK). For that reason, we do not see that what the High Court said about them has a great deal of bearing on the meaning of the Victorian legislation. Section 21A of the Crimes Act 1914 (C'th) was in some respects more akin to s 372(1) of the Victorian Act. But it imposed as a condition of amendment that there be a variance between the indictment and the evidence adduced at the hearing, and in Maher it was held that the section did not apply in the particular circumstances of the case because the putative amendment had been made before any evidence was adduced.[19] That consideration does not apply here.

25 Counsel for the applicant submitted that, even if that were so, what occurred in this case amounted to taking a compromise verdict on the count of recklessly causing serious injury without the jury reaching a decision on the more serious charge of intentionally causing injury.[20]

26 We think that criticism is misplaced. The presentment in this case was defective because it failed to include a count of recklessly causing injury which was disclosed by the depositions and which was in effect agitated throughout the trial. The result of the defect, had it not been cured, was that the jury would have been prevented from returning a verdict on the count of recklessly causing injury, even though they were plainly persuaded that the applicant was guilty of that offence, and would have been subjected to the dilemma of either convicting the applicant of the more serious count of intentionally causing injury (about which it appears they were intractably disagreed) or acquitting him altogether. To have left the presentment in that state, in those circumstances, would have been 'discreditable'.[21] The right course was to allow the amendment and thereby avoid the sort of problem which the late Professor Glanville Williams once piquantly described as follows:

These arguments were accepted by the courts on several occasions, where it was held that on a charge of causing gbh under s 18 there could be no conviction under s 20 or section 47 as an included offence.

Nevertheless, some prosecutors did not learn the lesson, and continued to charge under s 18 only. When they ran into difficulty in proving intent, the trial judge's proper course was to direct that the indictment be amended to include a count of the lesser offence. This judges have the power to do of their own motion, at any stage of the trial - even after the jury have begun their consideration - provided only that the addition does no injustice to the defendant (which means, provided that the defendant has been or will be accorded his full procedural rights in respect of the evidence). But trial judges did not exercise their power, and the combined incompetence of prosecuting counsel and of trial judges meant that offenders were unmeritoriously being acquitted on appeal.[22]

27 We add for the sake of completeness that, although the judge considered the possibility of re-arraigning the applicant once the amendment had been effected, he ultimately decided not to do so. With respect, we think it would have been preferable if his Honour had done so. Strictly speaking, the issue of recklessness was not one on which issue had been joined and, whenever an amendment is of real significance, it is highly desirable that the accused be re-arraigned after the amendment had been effected. As Lord Widgery LCJ said in R v Radley:[23]

...By arraignment, we refer of course strictly to the putting of the charge to the accused and asking him to plead to it. It is not suggested that when that has been done he has to be put in charge of the jury a second time or that a jury have to be empanelled again. It is perfectly permissible, if an amendment is made of a substantial character after the trial has begun and after arraignment, for the arraignment to be repeated, and we think that it is a highly desirable practice that this should be done wherever amendment of any real significance are made. ... judges in doubt on this point will be well advised to direct a second arraignment.

28 That said, however, there is no rule of law that an accused should be re-arraigned after a presentment has been amended pursuant to s 372(1) of the Crimes Act 1958.[24] It is apparent that defence counsel was well aware of the issues and in her submission to the judge discouraged his Honour from re-arraigning the applicant after the amendment had been effected. In fact, even if not at law, issue had been joined on the question of recklessness. And nothing has been suggested which might have inconvenienced or in any way prejudiced the applicant as a result of the lack of re-arraignment. In the circumstances of this case, the matter was devoid of material consequence.[25]

29 Under Ground 3, it was contended that the judge erred in admitting evidence of the fact of the applicant having given the deceased a 'backhander' during the course of the drinking session leading up the to the point where he struck her on the head with his wine cup.

30 In his ruling as to the admissibility of the evidence, the judge said that he regarded the evidence as admissible: first, because the backhander and blow to the deceased's head with the applicant's wine cup were both parts of the one transaction; secondly because it was relevant to the extent of the deceased's helplessness and thus to the duty of care owed by the applicant; and, thirdly, because it was relevant to excluding the possibility that the blow with the wine cup was accidental.

31 We agree with the judge. In our view, the evidence was plainly admissible as part of the res gestae or, more precisely in this context, as evidence of conduct which tended to prove how or why the blow with the wine cup came to take place. To adopt and adapt the words of the majority of the High Court in O'Leary v The King,[26] the backhander formed part of :

the circumstances of crime, including the drunken condition of the prisoner, how he reached that condition, how long it continued and how, while in that condition he was behaving. His violence, the fact that he exhibited this violence on slight or no provocation and all the circumstances, form inseparable features of a transaction consisting of connected events.

32 We also accept that the evidence was relevant to the relationship between the applicant and the deceased, in the sense that it was something from which, in conjunction with other circumstantial evidence, it would be open to draw an inference as to the degree of the deceased's helplessness and thus the applicant's duty of care to attend to her.

33 Finally, we agree with the judge that the 'backhander' was relevant to the question of intent, as evidence of something which tended to negative any suggestion that the blow with the wine cup was otherwise than intentional.[27]

34 Counsel for the applicant submitted that it was not open on the evidence to conclude that the backhander was sufficiently proximate in point of time to the blow with the wine cup to conclude that they were both parts of the one transaction. There are two answers to that. First, it was open to do so on the basis of the admissions in the applicant's record of interview, particularly the answers to questions 135 to 144. Secondly, and in any event, the backhander was sufficiently close in time to assist in rebutting the possibility of accident.

35 In the course of oral argument, counsel for the applicant also sought to argue that the judge erred in the directions which he gave the jury as to the use they might make of the evidence of the backhander. That submission is rejected. There was no exception taken to his Honour's direction on the point and there is no ground of appeal concerning the direction. Apart from that, however, there was nothing wrong with the direction. It was as follows:

So why is [there] evidence of [the backhander] before you then? The evidence is there because on the accused's account of events it was part of the events of that Saturday and to take it out would mean that you would have a less than full version of the account that he gave. It is also there because it is part of the prosecution case on neglect. Not only they say had she received the [wine] cup blow, but they say she had also received another blow to the head, so that is the second reason...

36 As so framed, the direction referred to the submission made by the prosecutor in the course of his final address to the jury, that:

This woman is badly affected by the blood loss, badly affected, and coupled with the blows to the mouth and to the head, the alcohol, the blood loss, you might think that she was not only helpless, but totally helpless and she needed attention ...

37 Read in context, it was an instruction that, in considering the Crown's submission that the deceased was helpless when the applicant walked out and left her, the jury were to take into account not only the bleeding from the deceased's head but also that the applicant had hit her in the mouth with sufficient force to make it bleed. There is no error in that.

38 Finally, under Ground 4, it was contended that the verdict was unsafe and unsatisfactory because of a body of evidence which, it was said, stood counter to the notion that the applicant did not take reasonable steps to assist the deceased; or, at least, was opposed to the view that it was reasonably foreseeable that failure to do more than the applicant did would expose the deceased to an appreciable risk of serious injury. The evidence on which counsel relied in support of that contention may be summarised as follows.

1. Evidence, in the form of the applicant's answers to questions put to him by police when interviewed, that he made repeated inquiries of the deceased before they went to bed on Saturday night and again after they rose on Sunday morning as to whether the deceased wished to go with him to seek medical assistance or have him call an ambulance, and on each occasion she said that she did not want medical attention.

2. Evidence, also in the form of the applicant's answers to questions put to him by police when interviewed that, when the applicant left the deceased to go to his brother's home on Sunday morning, the deceased was in the bedroom lying on the floor at the foot of the bed; and, when he came home and found her dead, she was lying in the kitchen with her head on a pillow which had no blood on it. In counsel's submission, that was consistent with the deceased having been ambulatory and compos mentis when the applicant left her in the morning.

3. Expert evidence, given by the pathologist called by the Crown, that the deceased's bleeding would not have occurred as a linear phenomenon and that the injury to her head was not one which would necessarily have bled steadily. Counsel submitted that that was consistent with the possibility the bleeding had become minimal or stopped by the time of the applicant's departure around 9.00 am on Sunday morning.

4. Evidence that the wound to the deceased's head was within her hairline, so that its dimensions may not have been clearly if at all visible to the applicant. In counsel's submission that was another reason to suppose that the applicant may not have appreciated the magnitude of the problem.

5. Evidence given by the Crown pathologist that he was unable to establish the time of death other than that it was some hours before he examined the deceased at 10.15 pm. In counsel's submission, that was not inconsistent with the deceased's condition having worsened considerably after the applicant left her.

6. Crime scene examination evidence of indications that the deceased had walked about the house, and it was reasonably possible that she did so after the applicant left her, albeit that there was evidence in the form of some of the applicant's answers that she had walked around the house during the night.

7. Crime scene examination evidence of an indication that someone had attempted to clean some of the blood from the hall carpet, and since the applicant denied having done so, it was possible that it was the deceased who had done so. In counsel's submission, that was a further indication of the deceased's apparently fair or stable condition at the time of the applicant's departure.

8. Finally, expert evidence of the deceased's pre-existing morbidities, but for the existence of which she would not have died, and the absence of evidence or suggestion that the applicant knew of them or appreciated their medical significance when he left her to go to his brother's home.

39 Counsel argued that, in face of that body of evidence, the jury were bound to have a reasonable doubt as to whether a reasonable person in the applicant's circumstances would have appreciated that the deceased was exposed to an appreciable risk of death or really serious injury, and a reasonable doubt as to whether the deceased was helpless. To the contrary, in counsel's submission, the evidence showed that the deceased was ambulatory and compos mentis at the point of the applicant's departure, and that there was nothing to suggest to a reasonable person, at that time, that her condition would worsen or, if it did, that she would be unable to arrange care for herself should the need arise. It followed, counsel contended, that in relation to each of the ways in which the Crown put its case in criminal negligence, the applicant should have been acquitted.

40 That submission is not persuasive. In our view, it was open to the jury on the evidence to be satisfied beyond reasonable doubt that, by striking the deceased on the head and cutting her head with the wine cup, the applicant exposed her to a significant appreciable risk of serious injury; and that, objectively discerned, she was helpless or unable to care for herself by reason of her condition.

41 As we see it, one need go no further to find the evidence of that than the applicant's answers to the questions put to him by police. Relevantly, they included the following.:

And what happened after - you've swung the coffee cup and you've hit Nola to the back of the head or you'd realised you'd hit Nola to the back of the head, what happened after that? --- I didn't even - I didn't - I don't - I don't know. I think she started bleedin', so she went and got a flannel and patted it dry, and it wouldn't stop bleeding' because - I said, 'You're - you're makin' a mess all over the floor'.

Yeah.--- And I just said, 'Look, come on, get in the car or I'll ring you an ambulance. Take your pick'. And she said, 'No, I'm alright'. I thought, 'Well, fair enough'. Somewhere along the way - I don't know what time, haven't got a clue - we've gone to bed.

...

And what time did you wake up this morning? ---She woke up to go to the toilet about 7 o'clock.

Yeah. Was she complaining about anything at that stage? --- No. I - I was complaining. I said, 'Have a look at the pillows'.

Yeah. What was wrong with the pillows? --- They're totally covered in blood, and I said, 'Get - you've got to come to hospital'. She goes, 'I don't need it'. I said, 'Well, I'm goin' down to ring an ambulance', and she says, 'I'm alright'.

Yeah. That was at 7 this morning' --- That was - yeah, between 7 and - that conversation went on for probably 15 minutes, 'cos I walked through the place and I couldn't believe how much she had been bleedin'.

Yeah. Where was most of the blood? --- Oh, it was - I got out of bed because it was too our pillows were soaked and the sheet was soaked. So I said, 'Out of bed. Can't sleep in this mess'. So, she went to sleep on the floor at the foot of the bed, and I walked into the kitchen, and there was blood all over the floor, all the way into the bathroom. So, I went back and told her I was goin' down to ring an ambulance.

What did she say to that? --- She just said, ' No, I'm alright. Go and get me a drink of water'. And about half past 8, 9 o'clock maybe, I told her I was goin' out, round to me brother's, and she goes, 'Well, go - go and get me another glass of water before you go'.

Was she still bleeding at that stage? --- Well, I do - - I don't know if she was bleeding when I said - I said, 'Are you alright?', and she said she was alright, but I don't know if she was bleeding or not. But the blanket she was usin' for a pillow, that had blood on it, so I assumed that just with movement she must've been either still bleeding or - - -

...

I mean obviously - was there a fair bit of blood, like - - - ? ---There was - there was a hell of a lot more than what I thought. She said she was alright, and I said 'No, there's - there's too much blood here to be alright'.

Yeah. --- I said, 'I'll take you down to the hospital and get some stitches whacked in it or have it looked at least'.

Yes. --- And she just - she just wanted to got to bed. She was staggerin'. She could hardly walk. We both could hardly walk. But I said let's - when I saw how much I said, you know, you gotta look at it. I told - I told her I'd go down and get an ambulance and she said no. She was adamant she didn't want an ambulance and she didn't want to go out 'cos she couldn't walk properly anyway, co - and I was as full as a boot, I didn't really want to drive.

You were obviously concerned about her at this stage in the morning? --- Yeah, but she wasn't concerned about. So, I thought, well, if it's not worryin' her.

42 Those answers makes plain that there was a great deal of blood loss by Sunday morning and that the applicant perceived it to be so great that the deceased could not be 'alright'. As he said himself, his state of belief was that 'there's too much blood here to be alright'. He believed that the deceased was in need of medical attention, because he repeatedly put to the deceased that she should go with him to medical attention or allow him to call an ambulance, and his view about that did not change. As he told police, he was concerned but he was prepared to do nothing about it simply because the deceased was not worrying. When he left her, he believed that her head was still bleeding or at least may still have been bleeding. As he said, he assumed that 'she must still have been either bleeding or...'. And he also knew, because he said so, that the reason she declined to go with him to seek medical treatment was because she could not 'walk properly'; which is to say that, by reason of her condition, she was unable to seek help herself. To that may be added (as was established by other evidence) that she had no mobile telephone and that there was no landline telephone in the house.

43 Much was made in argument of the fact that, on the applicant's report, the deceased steadfastly declined to go with him to seek medical assistance or even to have him call an ambulance. In those circumstances, counsel asked rhetorically, what else could the applicant have done? He had done all he could short of physically forcing her to go with him, or calling an ambulance against her wishes, and to have done that would have been unlawful.

44 That submission is not persuasive either. In our view, it was open to the jury properly to reason to a conclusion of guilt in any of several ways. For example, the jury may not have accepted the applicant's assertions that the deceased declined medical assistance, or may not have accepted that they were sufficiently emphatic for a reasonable person in the applicant's position to have taken them seriously. Alternatively, even if the jury accepted that the deceased seriously declined medical assistance, they may have taken the view that reasonable care in the circumstances demanded nothing less than to call an ambulance, notwithstanding the deceased's protestations, and that, if it been called, the deceased's opposition to care would in all probability have evaporated. After all, she had lost a great deal of blood. She wanted to do nothing more than lie down and sleep. The jury might well have thought that a reasonable person in the applicant's circumstances would have had real doubts about the deceased's ability to think rationally and clearly. Furthermore, the only reason she ever gave for not wanting to go out for medical assistance was that she could not walk properly. If an ambulance had been called, that would not have been a problem. Alternatively, even if the jury were not persuaded beyond reasonable doubt that reasonable care demanded nothing less than to call an ambulance, they might have concluded that, given the deceased's condition and the distinct possibility that it would worsen, reasonable care demanded no less than that the applicant stay close by and keep watch over her and, if there were any sign of further deterioration, then call an ambulance as required. Instead of that, he absented himself from about 9.00 am to 6.00 pm without making any efforts at all to monitor her condition, or even to contact her or have someone else look in on her.

45 Counsel for the applicant also stressed in argument the fact that, on the evidence, the deceased's loss of blood would not have been sufficient in itself to kill the deceased, and that the applicant knew nothing of the deceased's pre-existing morbidities which, combined with her loss of blood, were causative of her death. But, in our view, that does not take the matter any further. Of course, the applicant could not be held accountable for what he did not know, and so, in judging the objective perceptions of a reasonable person in his circumstances, it was to be assumed that the reasonable person would know nothing of them either. But, in this case, as opposed to one like, say, R v Taktak,[28] it was open to the jury to conclude that the manifest plight of the deceased the result of massive blood loss was such that a reasonable person in the applicant's position would have concluded that she was in real danger of suffering death or really serious injury unless she received medical attention.

46 Counsel for the applicant argued that, although the matter was to be judged objectively, it was surely relevant that the applicant was a chronic alcoholic who, according to expert evidence, was suffering from mental deficits in the nature of short-term memory loss and depleted planning and executive functions. In our view, that is not so, for two reasons. First, the evidence as to the applicant's mental deprivations was not before the jury. It was only adduced on the plea in mitigation of penalty. Secondly, and in any event, the law is clear that the crime of manslaughter by criminal negligence requires an objective comparison to be made between the conduct of the accused and the conduct to be expected of a reasonable person, and the objectivity which marks out the crime does not permit in its commission any distinction to be drawn between the intelligent and the handicapped or the appreciative and the ignorant. Those distinctions are drawn in the range of penalties imposed for the crime.[29]

47 Finally, counsel contended that, even if it were open to the jury to be satisfied beyond reasonable doubt that the applicant failed to take reasonable steps to alleviate the danger into which he had put the deceased, or to obtain assistance for her in circumstances where she was helpless to care for herself, the jury could not reasonably have been satisfied that the applicant's omissions fell so far short of the standards which a reasonable person would have exercised in the circumstances, and involved such a high risk of causing death or really serious injury, that he was deserving of criminal punishment.

48 We do not accept that contention either. Although it appears from the applicant's record of interview that he loved the deceased, and that it did not occur to him that she would die if he left her unattended, it is equally clear that he knew that the extent of her loss of blood loss was very serious and that it required medical intervention. Indeed, any rational adult human being, no matter how limited their medical knowledge might be, would know instinctively that major blood loss implies a significant risk of death or really serious injury which requires medical intervention. Put aside, therefore, that the applicant was an alcoholic whose sense of responsibility to care for his wife was perhaps lessened or otherwise corrupted by his condition, it surely was open to the jury to hold that he was criminally negligent to leave her for as long as he did, in her condition, without medical or other assistance.

49 There are two grounds of appeal against sentence. The first is that the judge is said to have erred in treating the fact that the applicant accepted the deceased's rejection of his offers of assistance as an aggravating circumstance or as an absence of mitigation. The second is that the sentence is manifestly excessive.

50 In his sentencing remarks, the judge described the applicant's offending as follows:

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

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

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

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

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

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

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

Finally, notwithstanding the extraordinary situation existing in the house that morning, you left her, and spent the whole day drinking beer and watching football at your brother's, without ever checking back on her and without even mentioning to your brother or his partner what had happened.[30]

51 Counsel for the applicant focussed on the words: 'Passive acceptance of the deceased's rejection of your offers seems to me to have been an extraordinary reaction to that situation'. In counsel's submission, they implied an unfairly unfavourable assessment of the applicant's moral culpability in circumstances where the deceased's rejection of assistance left the applicant without lawful option other than to abide her wishes.

52 We reject that submission, for several reasons. First, we do not read the impugned words as anything other than a neutral observation of fact included as part of the record of the facts and circumstances of offending. Secondly, for the reasons already given, we do not accept that the deceased's rejections of assistance meant that there was nothing which the applicant could lawfully do to assist her. For the reasons already stated, we consider that it was open to him to call an ambulance immediately or to keep her under observation to see if her condition worsened, and then call an ambulance. On any reasonable assessment of the situation, it was an extraordinary reaction on the part of the applicant just to walk out and leave the deceased in her condition. Thirdly, whatever significance is to be attributed to the impugned words, it is immaterial, because the judge accepted that the applicant's culpability was at the lower end of the spectrum. As his Honour put it:

Your counsel submitted that your offending only narrowly falls into the gross negligence category. I accept that, in terms of culpability, your offending is at the lower end of the negligent manslaughter spectrum. Most notably, your negligence was by omission and your offending conduct did not involve the callousness and deliberate cover-up present in some other criminal negligence cases.[31]

53 Counsel for the applicant submitted that the sentence of five years with a non-parole period of three years was excessive in view of the applicant's low level of moral culpability, lack of significant prior criminal history, cognitive deficit, severe depression and genuine remorse, and the delay between the commission of the offence in May 2006 and sentencing in 2009.

54 We do not think that the sentence was manifestly excessive. The judge referred to all of the considerations to which counsel referred, and it is apparent from the sentence which his Honour imposed that he took them into account. A sentence of five years with a non-parole period of three years is within the range for an offence of this kind, notwithstanding the applicant's cognitive defects.[32]

55 It follows from what we have said that the applications for leave to appeal against conviction and sentence should both be dismissed.

[1] The judge imposed an individual sentence of five years' imprisonment on the count of manslaughter, and of one month's imprisonment on the count of recklessly causing injury, to be served concurrently.

[2] Johnson v Rea [1961] 1 WLR 1400, 1405.

[3] Rex v Nicholls (1874) 13 Cox CC 75; Kelly v R [1923] VicLawRp 91; [1923] VLR 704, 707, and on appeal [1923] HCA 46; (1923) 32 CLR 509, 516, R v Russell [1933] VicLawRp 7; [1933] VLR 59, 81-2; R v Bonnyman (1942) Cr App R 131, 133; R v Taktak (1988) 14 NSWLR 226-242; R v Hall [1999] NSWSC 738; (1999) 108 A Crim R 209, 211-213; R v Cittadini [2009] NSWCCA 302, [38].

[4] R v Nydham [1977] VicRp 50; [1977] VR 430; R v Shields [1981] VicRp 68; [1981] VR 717; Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313, 33; R v Richards and Gregory [1998] 2 VR 1, 9; The Queen v Lavender [2005] HCA 37; (2005) 222 CLR 67, 70 [2].

[5] See R v Cowan [1955] VicLawRp 2; [1955] VLR 18, 21.

[6] Reg v Taylor (1869) 1CCR 194; R v Salisbury [1976] VicRp 44; [1976] VR 448, 454.

[8] R v Nuri [1990] VicRp 55; [1990] VR 641, 643-4; R v Campbell (1995) 80 A Crim R 461, 468-9.

[9] See and compare the observations of Glanville Williams in the slightly different but analogous English context, in Included Offences, (1991) 55 J Cr L, 234, 245 fn 18.

[10] [1984] AC 242, 261.

[11] See Glanville Williams, Alternative Elements and Included Offences, (1984) Cambridge LJ 290, 297, and Included Offences, (1991) 55 J Cr L, 234, 243.

[12] Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1, 13 (Dawson J).

[13] See R v Mc Cready [1967] VicRp 36; [1967] VR 325, 329; Stanton v The Queen [2003] HCA 29; (2003) 198 ALR 41, 47 [22]-[25].

[14] R v Martin [1962] 1 QB 221, 228.

[15] R v Hoser [1998] 2 VR 535, 539-540.

[16] Reg v Johal [1973] 1 QB 475, 480.

[17] R v Ernst [1984] VicRp 49; [1984] VR 593, 605 and the authorities there cited; Fox, Victorian Criminal Procedure, 2005, [8.2.3.1].

[18] [1987] HCA 31; (1987) 163 CLR 221.

[20] cf R v Moy [1995] SASC 5211; (1995) 81 A Crim 242.

[21] Glanville Williams, Included Offences, (1991) 55 J Cr L 234, 252.

[22] Glanville Williams, Included Offences, (1991) 55 J Cr L 234, 246.

[24] R v Hoser [1998] 2 VR 535, 539-540.

[26] [1946] HCA 44; (1946) 73 CLR 566, 576; Heydon, Cross on Evidence, Aust Ed, [21050].

[27] Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334, 339.

[28] (1988) 14 NSWLR 226.

[29] R v Richard and Gregory [1998] 2 VR 1, 9.

[30] [2009] VSC 326, [11]-[16] (emphasis added).

[32] See and compare R v Richard and Gregory [1998] 2 VR 1.