Director of Public Prosecutions v Sluga

[2022] VCC 1082

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Unrestricted
Suitable for Publication

Case No. CR-20-01182

DIRECTOR OF PUBLIC PROSECUTIONS

v

KATARINA JADRANKA SLUGA

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JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	18 July 2022
DATE OF SENTENCE:	18 July 2022
CASE MAY BE CITED AS:	DPP v Sluga
MEDIUM NEUTRAL CITATION:	[2022] VCC 1082

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Negligently Cause Serious Injury (1 charge) – plea of guilty following sentence indication – offender was daughter and full time carer of victim –  failure to access appropriate medical or allied health care – failure to provide adequate nutrition – omission of conduct leading to serious injury – depression and naivety – excellent prospects of rehabilitation – no risk to the community – delay – extra-curial punishment

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:DPP v L, R [2018] VCC 1163; R v Verdins [2007] VSCA 62; Boulton v The Queen [2014] VSCA 342; Worboyes v R [2021] VSCA 169

Sentence:                  18-Month Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A J Moore	Office of Public Prosecutions
For the Accused	Ms A Hancock	Adrian Paull Criminal Lawyers

HER HONOUR:

1Katarina Sluga, following a sentencing indication I gave on 29 June 2022 to the effect that if you were to plead guilty to the charge of negligently causing serious injury to your elderly mother, Lidia Sluga, between 1 November 2017 and 31 October 2018, I would not sentence you to an immediate term of imprisonment, you have pleaded guilty to the offence charged. The particulars of the offending as stated in the indictment are:

1)    Failing to access appropriate medical or allied health care for LIDIA SLUGA;

2)    Failing to provide adequate nutrition to LIDIA SLUGA.

2The maximum penalty for this offence is 10 years’ imprisonment. You have one prior, unrelated matter, dating back to 14 August 1991, when you were put on a good behaviour bond in relation to offences of use cannabis and cultivate narcotic plant – cannabis.

3The circumstances of your offending are set out in the Revised Summary of Prosecution Opening for Trial, and I sentence you on the basis of the facts set out in that document. In sentencing you, I have taken into account all the written material tendered and filed as well as the oral submissions of counsel made on 29 June 2022 and 18 July 2022. The material relied upon by counsel includes: the Revised Summary of Prosecution Opening for Trial; Outline of Prosecution Submissions together with  an Addendum (which includes a chronology, a summary of depositional material from family members concerning the impact of the offending, and a series of photographs of Lidia Sluga’s wounds and pressure sores taken on 2 November 2018); the Victim Impact Statement of Nada Darker, the victim’s daughter, dated 4 July 2022 and the admissible portions of the Victim Impact Statement of Charles Sluga, the victim’s son, dated 8 July 2022; a summary of comparable cases; sentencing remarks in the matter of DPP v L, R [2018] VCC 1163; your criminal record; Outline of Submissions and Further Submissions on Sentence Indication on your behalf; a psychological report by Mr Warren Simmons, psychologist, dated 15 June 2022, and a supplementary report by him dated 26 June 2022; personal references from two colleagues/friends, Ashley Redpath and Vicki Sanders, each dated 15 June 2022; a letter from your father, Dragutin Sluga, translated from Croatian and dated 13 July 2022; and a mental health care plan provided by Dr Preeti Jain, dated 11 July 2022.

4The offending was discovered by police who attended at Lidia Sluga’s home on 31 October 2018 to conduct a welfare check in response to a complaint from a person working next door about flies and smells of decay coming from the house. When police found Lidia Sluga apparently unresponsive in bed, paramedics were called. Police and paramedics observed the house to be in a dilapidated state, unhygienic with rubbish bags and faeces on the floor, 30 cats, no running hot water or washing machine and a broken toilet. You told them you were caring for your mother, that this took precedence over maintaining the house, and that you were exhausted.

5Dr Supriya Rama Krishnan, forensic physician, provided an expert medical opinion dated 14 June 2019 to the effect that as at 18 October 2018, Lidia Sluga was severely underweight, and had multiple severe pressure wounds requiring lengthy and specialised medical treatment to heal. Dr Krishnan opined that her overall condition was life-threatening and that, without medical intervention, she would only have survived for a short period. The prosecution case was that the life-threatening and substantial and protracted nature of the injuries, whether separately or together, amounts to a serious injury.

6In your written statement and record of interview, you told police that you moved in with your mother for financial reasons in 1992, and that she was very active until 2002, when she was diagnosed with a heart condition. You became her carer, but after she broke her hip in 2011, you began to care for her full time, and took over running the house. By this time she was fully dependent on you for all her needs. She was in a wheelchair for four years and then from 2016 was bedbound. You ordered an electric bed for her so that you could lift her. Between 2012 and 2018, you did not consider that your mother needed to be seen by a doctor. You knew how to manage the pressure sores which developed three or four months prior to police intervention, and were treating them with a product from the chemist which did not help. You felt that her sores were healing. You gave your mother vitamins and fed her a vegetarian diet, three times per day, plus snacks and drinks. From 2017, your mother was doubly incontinent. You changed her diapers many times per day. You installed a bed on the floor of her room, which was kept clean and tidy, and got up at night every two and a half hours to turn her. In late 2012 and early 2013, your mother was treated for a urinary tract infection and you obtained repeat medication prescriptions for her until August 2014. You did not call a doctor to the home for your mother because of her wishes, which included a wish to die at home. You had thought about getting the council help to manage the house and your mother. Due to complex relationships with other family members, you were isolated and dealt with all your mother’s needs on your own.

7After police intervened, your mother spent 3 weeks in hospital, where she was put on a high energy and protein diet and had her wounds treated, and then moved into aged care, where she died on 28 April 2020 from causes unrelated to the conditions which brought about her hospitalisation.

8Your brother, Charles Sluga, expressed shock and distress at the condition of his mother when he visited her in hospital, and upset that he was unable to help her before she declined. He remains upset at night about her decline but grateful that she spent the last period of her life well cared for in a nursing home.

9Your sister, Nada Darker, expressed anger, frustration and sadness at your conduct, and remains distressed at thinking how your mother suffered when the family was unable to visit her at home.

10Your counsel relied on two psychological reports by Warren Simmons.[1] In his first report, he diagnosed you as suffering from a depressive disorder. In his second report, he reaffirmed this diagnosis in the light of the observations of the paramedic, Madeline Bradshaw, and of the attending Constable Donnelly, to the effect that when they came to the house you appeared anxious, stressed, tired and overwhelmed. Mr Simmons concluded that your belief that you were doing your best (with which Ms Bradshaw agreed) was simplistic and indicated a lack of insight into your mother’s needs. In the final paragraph of his report, Mr Simmons opined that given your age and lack of antisocial personality traits, and in spite of your view that you would manage in prison, you would in fact find imprisonment more onerous than other inmates, and may suffer a recurrence of your depressive disorder.

[1]        Dated 15 June 2022 and 26 June 2022.

11Your father, Dragutin Sluga, provided a reference in which he noted that you were a loving daughter to your mother, and that he and Lidia Sluga had told the family that neither of them ever wanted to live in a nursing home. When he saw you a few months before your mother was taken to hospital, he continued to see the love, attention and care between you, but noticed that you had become tired. You reassured him that you had promised your mother to keep her at home.

12Your counsel relied on a number of matters in mitigation. Firstly, it is clear from the evidence that you loved your mother dearly and had been caring for her full time since 2012, trying to fulfil her wishes to remain at home. Due to difficult relationships with family members, you were unable to ask them to help you care for your mother. Nevertheless, you did your best to care for her at home, even when her care needs escalated over subsequent years. From 2018, you had been washing her, changing her diapers, applying creams to her sores, rolling her every few hours to treat the sores, and providing her with vitamins, food and hydration. You kept her bedroom in a better condition than the rest of the house, and set up a blow-up mattress in her bedroom so that you could tend to her overnight. For these reasons, and given the evidence that at the time police intervened, you were overwhelmed, stressed, exhausted, lacking insight into the fact that you were depressed and that your mother’s needs were not being adequately met, your moral culpability should be seen as reduced. Moreover, each limb of Verdins[2] is enlivened: your depression reduced your capacity to think clearly and make rational choices and causally contributed to the offending; these circumstances lessen the need for denunciation and punishment and warrant moderation in the weight given to general and specific deterrence; and imprisonment would weigh more heavily on you due to your naivety and depressive symptoms.

[2]        R v Verdins [2007] VSCA 62.

13It was submitted that your lack of insight/alleged lack of remorse are grounded in your devotion to your mother’s wishes and your impaired judgment at the time of police intervention, as well as an inability to see how your conduct, given your motivations and dedication, could be criminal in nature.

14Secondly, given the particular circumstances of the case, your age and lack of relevant criminal history, you do not pose any ongoing risk to the community, and therefore specific deterrence should be given limited weight, especially when considering your sound prospects of rehabilitation.

15Thirdly, you have suffered extra-curial punishment because due to these proceedings you were not informed of your mother’s death and funeral until a month later and were devastated at losing the opportunity to mourn her passing in the usual way.  

16Fourthly, this matter has weighed heavily on you for the past four years, during which period you have not offended and have worked part-time as a volunteer at a local Aged Care Centre keeping company with dementia sufferers.

17Fifthly, you are entitled to a discount for the utilitarian value of a plea of guilty as well as to an additional amelioration of sentence because the plea will have been entered during the currency of the COVID-19 pandemic.

18Finally, the circumstances of this case are very unusual, and imprisonment must always be a last resort and is not to be imposed unless the court considers that the purposes of sentencing cannot be achieved by another sentence. In the circumstances, Boulton’s[3] case provides support for the proposition that in spite of the objective gravity of the offending, a properly conditioned CCO of lengthy duration, on its own, is capable of satisfying the requirements of proportionality, parsimony and just punishment.

[3]        Boulton v The Queen [2014] VSCA 342.

19The prosecution made submissions to the following effect. The reports of Mr Simmons do not formally diagnose you as having suffered from any mental health condition. The depositional material from police and paramedics not relied on by your counsel shows that you were sceptical of the seriousness of your mother’s condition and did not want her to go to hospital. The personal references you relied on are of little use because they do not indicate any awareness of the circumstances in your mother’s home during the relevant period (excluding the reference from your father).  Finally, the complex family dynamic is not a matter of mitigation in excusing you from obtaining external help to provide care for your mother.

20For these reasons, your conduct is a serious example of the offence of negligently cause serious injury, falling above the middle range of seriousness for this type of offending. The prosecution conceded that the mitigating factors were that you have no relevant priors and that you were in a difficult position having the sole care of your mother, but insisted that you had the responsibility to ensure basic care and medical treatment for her. The prosecution also conceded that limbs 5 and 6 of Verdins are enlivened but submitted that in the absence of expert opinion establishing a causal nexus between any psychiatric condition and the offending, the other limbs of Verdins are not enlivened.

21Finally, the prosecution submitted at the sentence indication hearing that the appropriate sentence is one including an immediate custodial component. No further submissions were made at the plea hearing.

22Counsel drew my attention to a number of cases. The only case involving omission of conduct which led to the serious injury, as opposed to commission, is that of DPP v LR [2018] VCC 1163. There, three adults had the care of a child. There was evidence that the child was tied up; screaming in pain from headaches; and deliberately starved over weeks to months. One of the three co-accused suffered from an intellectual disability. Community Correction Orders were imposed for all-co-accused.

23You were assessed by Corrections Victoria on 29 June 2022 as suitable to undergo a CCO with recommended conditions of supervision, community work, mental health treatment and programs to reduce offending. The recommended length was that of 18 months. The mental health assessment dated 30 June 2022 noted that you presented with poor appetite, moderated mood, impaired judgment and insight, grief and anxiety. A mental health condition on the CCO was recommended so that you could access psychological counselling for your grief, and obtain assistance with improving your insight and judgment. A drug and alcohol condition was also recommended. 

24I note that you have already obtained a Mental Health Care Plan from your GP, Dr Jain, dated 11 July 2022, against the background of a diagnosis of adjustment disorder with depressed and anxious mood.

25I acknowledge that given the limited relevant sentences, it is difficult to ascertain a discernible sentencing practice in relation to this offence. Each case must be determined on its own facts. 

26I accept that the offence of negligently causing serious injury is a serious offence, given the maximum sentence imposed by Parliament. However, when assessing the objective gravity of your offending, I am not satisfied that it lies above the middle of the range of offending of this type. I note that the prosecution did not give any reason for asserting that it does.

27The background to this offending, as outlined above, is in my view quite extraordinary. You have clearly been a loving and devoted daughter, tending to your mother’s hygiene, nutrition and turning needs full time, sleeping on the floor by your mother’s bed for a number of years while slowly becoming overwhelmed by the task, unable to manage or maintain the home outside the bedroom; all the while prioritising your mother’s wish to remain at home, and to die there, over any other factors; and at the same time perhaps losing insight into the need for external medical attention and assistance or losing the ability to arrange such intervention.  At the time of police intervention, you were overwhelmed, anxious, exhausted and assessed thereafter as suffering from depressive symptoms. I consider that all the limbs of Verdins are satisfied, but that, even if they are not, I consider that your moral culpability for the offending is reduced by the toll that full-time care of your mother was having on you, and I accept that you would find prison more burdensome than other inmates because of your current depression and your naivety.

28I accept all the matters you relied upon in mitigation. In particular, I consider that given your age and absence of relevant prior or outstanding matters, you have excellent prospects of rehabilitation and pose no risk to the community. I also consider that delay of almost 4 years is a relevant factor. In addition, you have suffered extra-curial punishment in not being able to attend the funeral of the mother you cared for over so many years. You are entitled to a substantial discount for your plea of guilty and to an additional discount given the timing of your plea during the pandemic.[4]

[4]        Worboyes v R [2021] VSCA 169.

29Imprisonment must be a sentence of last resort, and a CCO, which has punitive features, may be suitable even in cases of relatively serious offences which might previously have attracted a term of imprisonment.  I consider that all of the relevant sentencing principles can be met in this case by the imposition of a suitably conditioned CCO. 

30In all the circumstances, I consider it appropriate to sentence you as follows.

31On Charge 1, negligently cause serious injury, you are sentenced to a CCO of 18 months’ duration, with the following conditions: 100 hours of community work; supervision; mental health assessment and treatment. I direct that all of the 100 hours of community work may be satisfied by participation in the mental health counselling recommended in your mental health plan.

32Regarding your CCO, you will need to report to Geelong Community Correctional Services within 2 working days once the order commences.

33The mandatory conditions of the order include that you must not commit any other offences during the period of the CCO - that is, 18 months from its commencement - for which you could be imprisoned, even if a court would not choose to impose imprisonment in relation to those offences. You must not leave Victoria without first getting permission to do so from a Corrections officer, you must obey all lawful instructions from and the directions of Corrections officers, and you must report to and receive visits from a Corrections officer. Finally, you must notify a Corrections officer of any change of address or employment within 2 clear working days after the change.

34Do you understand all the conditions I have imposed and the general terms that apply?

35Your counsel will explain the order to you in more detail. You must make sure that you comply with the order because if you breach a condition of the order, aside from a direction of the Secretary, that is an offence punishable by 3 months’ imprisonment. You will then be dealt with for breaching the order, but will also be exposed to the possibility that you will be brought back and re-sentenced for the original offending. If you are re-sentenced, you may be sentenced to a term of imprisonment.

36Do you consent to the making of a CCO?

37I indicate pursuant to s 6AAA of the Sentencing Act 1991 (Vic) that, but for your plea of guilty, I would have imposed an sentence of a CCO of 3 years duration, with conditions of supervision, 200 hours of community work, and mental health assessment and treatment.