Naddaf v The Queen
[2020] VSCA 41
•6 March 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0234
| MOHAMED NADDAF | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, KAYE and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 2 March 2020 |
| DATE OF JUDGMENT: | 6 March 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 41 |
| JUDGMENT APPEALED FROM: | [2018] VSC 429 (Champion J) |
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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to manslaughter by criminal negligence – Total effective sentence of 11 years’ imprisonment, non-parole period of 8 years – Applicant failed to obtain medical assistance for seriously injured wife – Protracted period of offending – Whether sentence manifestly excessive – Leave to appeal refused – Very serious example of manslaughter by criminal negligence – Aggravating factors – Duty of care – High moral culpability – Plea of guilty – No other substantial mitigating circumstances – Current sentencing practices only one of a number of factors to be considered – Reid v The Queen (2010) 29 VR 446, R v Jagroop (2009) 22 VR 80, R v Blackwell [2013] VSC 499, R v Lai [2015] VSC 346, R v Vandergulik [2009] VSC 3 and R v Russo [2018] VSC 395 considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Gullaci | Doogue & George Pty Ltd |
| For the Respondent | Ms M Mahady | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
KAYE JA
WEINBERG JA:
The applicant pleaded guilty to the manslaughter of Ashlee Brown at Craigieburn between 2 November 2016 and 6 November 2016. After a plea presented on his behalf, he was sentenced to 11 years’ imprisonment with a non-parole period of 8 years.[1] He seeks leave to appeal the sentence on the ground that it is manifestly excessive.
[1]R v Naddaf [2018] VSC 429 (‘Reasons’).
The applicant’s guilty plea was made on the basis of manslaughter by criminal negligence. In particular, it was put, and accepted by the prosecution, on the basis of the failure of the applicant to obtain medical assistance for Ms Brown after she had sustained multiple injuries due to an assault inflicted upon her in a Hyundai motor vehicle that was located in the garage of their family home. The prosecution was not able to identify who had inflicted the injuries on Ms Brown.
The circumstances of the offence
At the time of her death Ms Brown was 25 years of age, and the applicant was 37 years of age. They had been living together at premises in Craigieburn for approximately five or six years. Residing at the home with them were their three children, a son aged three years, a daughter aged two years and a son who was then six months of age.
At approximately 10.55 am on Sunday 6 November 2016, the applicant telephoned the Emergency Services number triple 0 and requested ambulance assistance. He told the operator that he had found his wife in the vehicle some days previously, and that she was now cold to touch and stiff.
When the ambulance officers arrived at the home, they found Ms Brown lying on the floor of the bathroom alongside the applicant. Although it was clear that Ms Brown had been deceased for a considerable period of time, the applicant was seen attempting to administer cardio pulmonary resuscitation (‘CPR’) to her. Their two year old daughter was also in the bathroom. The ambulance officers stopped the applicant from continuing CPR. They observed obvious bruising, scratches and cuts to Ms Brown’s face, arms and legs. In addition, there was a bandage on her lower leg. The ambulance officers became concerned by the account given by the applicant of the circumstances surrounding Ms Brown’s death. Accordingly, they contacted the police. When the police attended, the applicant was taken into custody.
A search of the premises revealed that there was extensive blood staining within a red Hyundai motor vehicle that was parked within the garage to the premises. The most extensive area of blood staining was on the front passenger seat. There was also blood staining in the garage, including on the internal door and door frame, the west side wall, the east side wall, and on the floor adjacent to the driver’s door of the Hyundai. Police also located in a wheelie bin, in the front yard, a clump of dark blonde hair, packing tape wrapper and lengths of yellow cord.
The post-mortem examination revealed that Ms Brown had sustained multiple blunt and sharp force (incised) injuries to various parts of her body, including her head, torso, buttocks, arms and legs. The injuries included stab wounds to her right thigh, right knee and left thigh, incised injuries to her right ankle, and lacerations to her scalp. There was extensive deep bruising on her left scalp, left side of the face, right breast, right arm, left forearm and inner lips. Areas of band-like bruising were observed around each wrist consistent with Ms Brown having been bound by her wrists. Her nasal bone was fractured.
At the time of the post-mortem, some of the wounds sustained by Ms Brown had become infected. A maggot colonisation was found, which an entomologist estimated as having been established between 5 and 7 November 2016.
The forensic pathologist, Dr Young, concluded that the cause of death was complications arising from the multiple injuries inflicted on Ms Brown. Those complications included renal failure, bleeding, ‘shock liver’, gastric mucosal erosions and systemic inflammatory response. Those conditions developed because of the internal and external bleeding which resulted in low blood circulation around the body for an extended period of time. Dr Young expressed the opinion that the complications from the injuries were a direct consequence of the applicant having failed to obtain medical assistance for Ms Brown.
The applicant was arrested on 6 December 2016. When he was interviewed he told police that he had found Ms Brown in the Hyundai vehicle in the garage sometime between 1.00 and 2.00 pm on the previous Tuesday (1 November) or Wednesday (2 November). He said that when he found Ms Brown in the vehicle, there was ‘blood everywhere’, it was ‘over her whole body’ and there was ‘bruising everywhere’. He said that her face was ‘all blown up’, that she had multiple cuts on the back of her head, and that her neck was swollen. The injuries got worse over the following days. The applicant told the police that Ms Brown was concerned that the Department of Health and Human Services (‘DHHS’) would take her three children from her if emergency services were summoned. He said that he wanted to telephone the ambulance, but Ms Brown begged him not to. In the days that followed after he had found her, he gave her water using a syringe and some soup, but most of it leaked from her mouth. He crushed up medication for her and poured it into her mouth and then squirted water into her mouth using the syringe. He had also endeavoured to treat Ms Brown’s injuries by cleaning them up and putting bandages on them (on the autopsy it was noted that some tape had been stuck to Ms Brown’s body to cover her injuries).
The applicant told the police that on the evening of Saturday 5 November 2016 he went to bed at about 10.00 or 11.00 pm, having taken medication to assist with his sleep. He said that before he went to bed Ms Brown was alive, because he had spoken to her in the bathroom. He did not wake on the next morning (Sunday 6 November) until about 11.00 am.
The applicant negotiated the guilty plea before the date of the committal hearing. He was arraigned at committal and pleaded guilty to manslaughter, by criminal negligence, on the basis that he failed to obtain medical or other assistance for Ms Brown.
On the plea, the prosecution case, which was accepted by the applicant, was that Ms Brown had been seriously assaulted in the car and the garage of the premises. The assault included Ms Brown being tied up with a clothesline cord, and the multiple injuries being inflicted on her. The prosecution did not submit that the applicant’s explanation of the circumstances, in which the injuries were inflicted, should be accepted. However, it was agreed by both parties that the applicant’s failure to seek medical attention for Ms Brown, after she had sustained the injuries, was the basis of his liability for the crime of manslaughter by criminal negligence.
On the plea, the sentencing judge was provided with five victim impact statements, compiled by the parents, two brothers and a sister of Ms Brown. The statements described the profound grief and emotional trauma sustained by each of them as a consequence of Ms Brown’s death, and the circumstances in which it occurred.
The applicant’s previous convictions
The applicant had a number of previous convictions that he had incurred between 1997 (when he was 18 years of age) and 2010 (when he was 31 years of age). They included convictions for drug offences, burglary and dishonesty, and traffic offences. The judge did not regard the applicant’s previous history to be relevant to an assessment of the applicant’s prospects of rehabilitation or to the need for community protection.[2]
[2]Ibid [71].
The plea
The applicant was born in 1979. He was the third eldest of seven children. He was educated at Thomastown High School but experienced pervasive learning issues, including difficulties with basic literacy skills. He also had difficulty concentrating in class. As a consequence, he had behavioural problems, and ultimately he was requested to leave school during Year 10.
During his childhood and early teenage years, the applicant experienced conflict with a number of members of his family. His resort to substance abuse was a predominant factor in the tensions with his family. He commenced drinking alcohol and smoking cannabis when he was 15 years of age. When he was 16 years of age, he started using heroin, and he continued to do so for approximately ten years. After a term of incarceration, he ceased using heroin, but he then commenced using amphetamine, and, subsequently, methylamphetamine. His usage of that substance increased from weekly to daily, and continued until his arrest for the present offence.
After leaving school, the applicant worked as a spray painter for a number of different companies. However, he had difficulties in maintaining employment, mainly due to his behavioural issues and his substance abuse. At the time of his arrest, he had been unemployed for a number of years. During that time, he was in receipt of a disability support pension on the basis that he suffered from hypothyroidism. He had been diagnosed with that condition when he was 16 years of age.
The applicant had two significant relationships. When he was 26 years of age, he met and married a woman, and there were two children of that marriage. However, his abuse of drugs created conflict in the marriage and led to the breakdown of it. As mentioned, the applicant and Ms Brown had been in a relationship for five or six years before the offence.
On the plea, counsel tendered a psychological report prepared by Dr Mathew Barth, a psychologist, and a report by Mr Mathew Staios, a consultant psychologist.
Dr Barth examined the applicant on 24 January 2018. He concluded that the applicant has an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct and an Antisocial Personality Disorder, as well as a Cannabis-Use Disorder and Stimulant-Use Disorder. He considered that the applicant had below average intellectual functioning, but there were no deficits in his ability to appreciate the wrongfulness of his actions. In conclusion, Dr Barth considered that the applicant had significant emotional, interpersonal and behavioural problems dating back to his childhood, which had become entrenched and intensified by his subsequent lifestyle. He recommended a number of treatment components, including substance abuse treatment, offence specific treatment, mental health treatment, and vocational education and training.
In a supplementary report, Dr Barth expressed the view that the applicant’s emotional and behavioural dysfunction had the effect that he was prone to making poor and short-sighted decisions, and contributed to impulsiveness and irresponsibility. However, there was no indication that the applicant’s cognitive function was impaired to the degree that he was incapable of fully understanding the wrongfulness of his offending conduct. Dr Barth also expressed the view that the applicant was prone to periods of depression. However, his emotional distress was capable of treatment with anti-depressant medication and counselling. While the applicant’s emotional distress was likely to contribute to some degree of ongoing difficulty in coping with a custodial environment, his issues were not so severe that jail would be more onerous for the applicant as compared to other prisoners.
Mr Staios examined the applicant on 2 March 2018. He considered that the applicant’s level of intellect fell within the extremely low range of general intellectual functioning and that it was at the level of intellectual disability. His intellect was consistent with a Mild Intellectual Development Disorder, which was developmental in nature, and which was further impacted by the applicant’s significant chronic substance abuse. Mr Staios expressed the view that the applicant’s long-term substance abuse, in conjunction with his pre-existing psychological vulnerabilities and limited intellectual function, had probably impacted on his emotional regulation skills and reasoning skills during his crucial developmental period.
On the plea, counsel for the applicant placed emphasis on the plea of guilty made by his client. He noted that the first offer of the plea to a charge of manslaughter by criminal negligence, was made on 14 November 2017, and that the matter was resolved on that basis before the committal proceeding. Accordingly, the plea had important utilitarian value by saving the victims from the stress of a contested proceeding. It was also submitted that the applicant had demonstrated remorse by the plea.
In respect of the offending, counsel contended that the applicant had provided a level of care and compassion to Ms Brown. He pointed to the observations made by the ambulance officers that a sheet had been placed under the body of Ms Brown, that she was covered with a valance, that a pillow had been placed under her head, and that a heater was nearby. In addition, the applicant had applied adhesive tape to numerous wounds that she had sustained. He had also sought to treat her by the use of syringes and medication. Counsel submitted that the explanation given by the applicant, that Ms Brown had told him not to call the police or ambulance because she feared DHHS might remove her children, was supported by a letter from DHHS, which confirmed that previous reports had been received in relation to the two elder children concerning the circumstances in which they were being raised.
Counsel submitted that the applicant’s offending was in contrast to other cases in which an offender had provided no care or support for the victim at all. He referred to three decisions, namely, Reid v The Queen,[3] R v Jagroop[4] and R v Blackwell,[5] and submitted that the offending, in each of those cases, was more serious than that of the applicant.
[3](2010) 29 VR 446; [2010] VSCA 234 (‘Reid’).
[4](2009) 22 VR 80; [2009] VSCA 46 (‘Jagroop’).
[5][2013] VSC 499 (‘Blackwell’).
Counsel also relied on the reports of Dr Barth and Mr Staios. He tendered character references prepared by the applicant’s parents and sisters, brother-in-law and niece, and two family friends. Counsel noted that the applicant had a large family which was supportive of him, and that he was motivated to rehabilitate so that he could regain contact with his children. Accordingly, it was submitted that the applicant’s prospects of rehabilitation were positive.
In response, the prosecution submitted that the applicant’s offending constituted a very serious example of the offence of manslaughter by criminal negligence. The prosecutor pointed to the lengthy period of time during which Ms Brown had remained on the bathroom floor, in circumstances in which it was plainly obvious that she needed immediate medical attention. The duty of care owed by the applicant to Ms Brown was accentuated by the circumstance that she was his wife, that she was vulnerable, and that she was the mother of his three young children. Counsel noted that the applicant, in his interview, stated that Ms Brown was not able to drink water, and that she was incoherent. In his interview, he stated that he said to her that she was going to die and that she should let him help her. In those circumstances, it was submitted that the applicant well knew that Ms Brown’s condition was extremely serious.
Reasons for sentence
In his reasons for sentence, the judge characterised the applicant’s offending as a ‘very serious example of manslaughter by criminal negligence’.[6] His Honour stated:
It is clearly evident Ms Brown was in a serious condition when you made the decision to move her into the bathroom. You left her lying on the floor of the bathroom for four to five days while you watched her deteriorate and eventually die. You allowed her to die in circumstances that were completely avoidable. All it would have taken for you to summon assistance was to make a phone call, and it was likely that she would have then survived. I consider the prolonged period over which this offending took place to be an aggravating factor in assessing your conduct.
Ms Brown’s death was slow and miserable. Whilst it was submitted that you did your best to care for her over the time she lay on the floor and her condition deteriorated, I regard those efforts as pathetically weak compared to the level of care she clearly needed. You treated her with a gross lack of respect in circumstances where she was your partner, where she was vulnerable and in need of care, and you had a duty to care for her. I accept nevertheless that you did not ignore her completely.[7]
[6]Reasons [54].
[7]Ibid [55]–[56].
The judge considered that it was ‘very hard to accept’ that, in light of the severity of Ms Brown’s injuries, the applicant refrained from calling assistance at the request of Ms Brown because of a risk that DHHS may become involved and remove their children. Accordingly, his Honour was unable to conclude what motivated the applicant to commit the offending.[8]
[8]Ibid [57].
Having referred to the victim impact statements, the judge outlined the applicant’s personal circumstances, to which we have referred. As mentioned, his Honour did not consider that the applicant’s previous convictions played an adverse role in an assessment of the applicant’s prospects of rehabilitation. He did not regard those prospects as ‘closed’, but he noted some concerns about the applicant’s future in that regard.[9]
[9]Ibid [71]–[72].
The judge then analysed the question of the degree of culpability and responsibility of the applicant. Having summarised the reports of Dr Barth and Mr Staios, his Honour considered that the applicant’s psychological and intellectual issues were insufficient to provide a cogent reason why he had committed the offence. The decision that the applicant needed to make, about whether to seek assistance for Ms Brown, was not difficult.[10] The judge noted Dr Barth’s opinion that, as a consequence of the applicant’s personality issues, he was prone to making poor and short-sighted decisions.[11] However, Dr Barth had concluded that the applicant was capable of fully understanding the wrongfulness of his offending behaviour.[12] His Honour was satisfied that the applicant’s low level of general intellectual functioning qualified as an impaired mental functioning for the purpose of the sentencing principles discussed in R v Verdins.[13] However, he was unable to conclude that the applicant’s particular disabilities were causally linked to his offending.[14] In particular, his Honour could not conclude that the applicant’s impairment diminished his capacity to understand the nature and gravity of his offending. Nor did his Honour consider that the applicant’s disability was such that general deterrence should be moderated in determining sentence.[15] Further, as it had not been established that the applicant’s antisocial and adjustment disorders provided an explanation for his conduct, they were not a basis for moderating the applicant’s moral culpability, or the application of the sentencing purposes of general and specific deterrence.[16]
[10]Ibid [79].
[11]Ibid [81].
[12]Ibid [82].
[13](2007) 16 VR 269; [2007] VSCA 102.
[14]Reasons [88].
[15]Ibid [88]–[89].
[16]Ibid [90]–[91].
The judge noted the opinion expressed by Dr Barth that because the applicant was prone to periods of depression, and that because he had poor coping skills, the custodial environment was likely to be relatively difficult for him. However, the weight to be attributed to that consideration was limited, as Dr Barth had concluded that the applicant’s issues should be manageable, and they were not so severe as to make jail more onerous for the applicant as compared to other prisoners.[17]
[17]Ibid [92].
The judge took into account, as a mitigating circumstance, the applicant’s plea of guilty and his acknowledgement of the significant harm that his actions had caused to a number of people.[18] The plea of guilty had a clear utilitarian benefit, in that it had saved further trauma and stress to witnesses and the victims.[19] The judge also accepted that the applicant had exhibited a degree of remorse for his offending, but it was difficult ‘to attribute great weight to it’.[20] His Honour also noted that he had assessed the applicant’s prospects of rehabilitation as ‘reasonably open’.[21]
[18]Ibid [93].
[19]Ibid [94].
[20]Ibid [96].
[21]Ibid [98].
In conclusion, the judge considered that the sentencing purposes of general deterrence and denunciation were significant.[22] The applicant’s offending represented a particularly serious instance of manslaughter by criminal negligence.[23] His Honour stated:
In a grossly negligent way, you left your wife, a young woman, who was vulnerable and in urgent need of medical assistance to deteriorate and die not only before your eyes, but also those of your children. You placed her on a hard, tiled bathroom floor and left her there for four to five days on a sheet. The appalling and heartbreaking scene depicted in the photographs brings to mind how some people might have left a wounded animal. Placing and leaving her in that place, on the floor, was a lamentable act, which is hard to fathom. I utterly reject your assertion that you placed her there in accordance with her wishes.
The period over which you left her was unconscionably prolonged and, as her condition deteriorated, she must have suffered considerably. That your offending occurred over a period of up to five days, in my opinion, significantly elevates the gravity of your criminal behaviour. It was obvious to you when you decided to take her to the bathroom, where she ultimately died, that she had been brutally assaulted. Your failure to seek help for her fell very far short of the standard of care which a reasonable person in our community would have expected, and as such was seriously morally blameworthy conduct.
Your stated attempts to care for your wife over the period leading to her demise were feeble and derisory, and deserving of condemnation rather than praise. Your explanation for acting in the way you did was equally deplorable, and hard to accept. Your behaviour is to be condemned as being pitiless, and lacking basic human compassion.
It was also avoidable as the simplest and uncomplicated of actions – the making a mere telephone call – would have likely saved Ms Brown’s life. At the very least, obtaining proper assistance would have eased her suffering. It is difficult to understand why you did not make the call.[24]
[22]Ibid [100].
[23]Ibid [104].
[24]Ibid [105]–[108].
Submissions
The proposed ground of appeal, and the submissions by counsel for the applicant, focussed almost solely on the proposition that the sentencing judge gave insufficient weight to current sentencing practices. In support of that submission, counsel relied predominantly on the sentences imposed in Jagroop, Reid and Blackwell, to which we have referred. Essentially, it was submitted that, taking into account the different circumstances of the offending, and of the offender, in each of those cases, nevertheless the sentence imposed on the applicant was demonstrably well beyond the range of sentences imposed in those other cases.
In particular, counsel noted that, while in Jagroop and Reid, the guilt of the particular offender was based on his negligent omission to render or seek appropriate assistance for the victim, in each case the offender himself had caused the injury. In Jagroop, the offender hid the victim’s body and lied to the police about the victim’s whereabouts. In Reid, the offender effectively ignored the clear signs that the victim was significantly injured, and left her unattended for more than eight hours. In Blackwell, the offender was present and witnessed the attack in which the victim’s injuries were sustained, and she refrained from providing any assistance to him, both during the attack, and following it.
Counsel submitted that, by contrast to those cases, the applicant did not cause or participate in the injuries inflicted on the victim. He did not have any intention to cause serious injury or any injury to his partner. The applicant did attempt to provide some care for the victim and he provided her with some comfort and assistance, in contrast to the conduct of the offenders in Reid and Jagroop. Further, unlike the offender in Jagroop, the applicant did not conceal the victim’s body, and he did not lie about or conceal her whereabouts.
Counsel for the applicant also relied on the sentences imposed in three other cases of manslaughter based on criminal negligence, in which the guilt of the offender was constituted by his or her negligent act (as distinct from negligent omission), namely, R v Lai,[25] R v Vandergulik[26] and R v Russo.[27] Counsel submitted that the objective gravity of the offending in both Lai and Vandergulik was more serious than that of the applicant. He submitted that taking into account the cases to which he referred, the sentence imposed on the applicant was demonstrably beyond the range of current sentencing practices, as to be manifestly excessive.
[25][2015] VSC 346 (‘Lai’).
[26][2009] VSC 3 (‘Vandergulik’).
[27][2018] VSC 395 (‘Russo’).
In response, counsel for the respondent commenced by submitting that the judge correctly considered that the offending by the applicant was a particularly serious example of manslaughter by criminal negligence. In particular, Ms Brown was in urgent need of medical assistance. The offending occurred over four to five days. In that period, the applicant’s failure to seek help for Ms Brown fell very far short of the standard of care which might be expected of a reasonable person in the community, and his conduct was serious and morally blameworthy. Ms Brown’s death was slow and miserable. It could have been avoided by one telephone call to the emergency services. The applicant’s conduct was aggravated by the circumstance that he left his wife to die in the presence of his young children, who were aware of her plight. Throughout the period of the offence, Ms Brown was vulnerable, and dependent on the applicant for her care.
Counsel for the respondent submitted that the judge gave appropriate consideration to the three sentencing cases, to which he was referred by counsel on the plea. In each of those cases, the period of the offending was substantially shorter than that in the present case. In Jagroop, the offender had acted out of a sense of panic and stupidity, he had no previous convictions, and it was likely that he would spend most of his sentence in protective custody. In Reid, the applicant’s moral culpability was diminished by reason of his cognitive deficit and severe depression. In Blackwell, the sentencing judge had regard to the effect of the applicant’s abusive childhood, and dysfunctional and violent relationships in which she had been involved during her adult years. As a consequence, she had suffered post-traumatic stress disorder which had impacted on her moral culpability.
Accordingly, it was submitted that the sentence imposed on the applicant was not ‘wholly outside the range of sentencing options’ available to the judge in the circumstances of the case, particularly in light of the judge’s assessment of the applicant’s offending as being a serious example of the offence.
Analysis
In order to establish that the sentence imposed on the applicant was manifestly excessive, it must be demonstrated that the sentence was wholly outside the range of sentencing options available to the sentencing judge. In other words, the sentence must be so excessive as to bespeak error by the judge in the exercise of his sentencing discretion, notwithstanding that no specific error may be identified in his Honour’s reasons for sentence.[28]
[28]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; Woods v The Queen [2019] VSCA 259, [132] (Maxwell P, Kaye and Niall JJA); McPhee v The Queen [2014] VSCA 156, [9]–[11] (Redlich and Priest JJA) (‘McPhee’).
In McPhee, Redlich and Priest JJA emphasised that in each case, the determination of the appropriate sentence is the product of a discretionary judgment that involves the evaluation, balancing, and synthesis, of a range of competing considerations. Their Honours stated:
Every single human situation is unique, and the sentencing judge’s instinctive synthesis involved a distillation of numerous individual factors into an appropriate head sentence and non-parole period. It must be remembered that the exercise of the sentencing discretion does not involve the application of a mathematical formula. Reasonable minds can, and do, differ as to their assessment of an appropriate sentence for criminal offences.[29]
[29]Ibid [8].
In the present case, as noted, the application for leave to appeal was based substantially on the proposition that the sentence imposed on the applicant was so far in excess of current sentencing practices as to be manifestly excessive. In considering that proposition, it is necessary to bear in mind, as the High Court recently emphasised in Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym),[30] that while s 5(2)(b) of the Sentencing Act 1991 provides that current sentencing practices are a relevant consideration in the determination of the sentence in each case, nevertheless they are only one of a number of factors which must be taken into account in the exercise of the sentencing discretion in a particular case.[31]
[30](2017) 262 CLR 428; [2017] HCA 41 (‘Dalgliesh’).
[31]Ibid 434 [5]–[9] (Kiefel CJ, Bell and Keane JJ), 453–4 [82] (Gageler and Gordon JJ).
The principles relating to the use of comparable cases, to demonstrate current sentencing practices, have been discussed in a number of decisions, including those of the High Court[32] and of this Court.[33]
[32]See, eg, Wong v The Queen (2001) 207 CLR 584, 591 [6] (Gleeson CJ); [2001] HCA 64; Hili v The Queen (2010) 242 CLR 520, 534 [44], 535–6 [48]–[49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2010] HCA 45; Barbaro v The Queen (2014) 253 CLR 58, 74 [40]–[41] (French CJ, Hayne, Kiefel and Bell JJ); [2014] HCA 2; R v Pham (2015) 256 CLR 550, 558–9 [26]–[28] (French CJ, Keane and Nettle JJ); [2015] HCA 39; Dalgliesh (2017) 262 CLR 428, 453–4 [82]–[83] (Gageler and Gordon JJ); [2017] HCA 41.
[33]See, eg, Hudson v The Queen (2010) 30 VR 610, 617–18 [28]–[33] (Ashley, Redlich and Harper JJA); [2010] VSCA 332; Nguyen v The Queen [2016] VSCA 198, [71]–[72] (Redlich JA); DPP (Cth) v Thomas (2016) 53 VR 546, 606–11, [171]–[187] (Redlich, Santamaria and McLeish JJA); [2016] VSCA 237.
In Lieu v The Queen, Beach and Kaye JJA summarised those principles in the following terms:
Ordinarily, comparable cases are relevant to indicate or reveal the sentencing range for the offence which is under consideration. In that way, an analysis of comparable cases is directed to promoting consistency of sentences. However, ultimately, the consistency that is sought to be achieved is not some mathematical or numerical equivalence of sentences. Rather, the process is directed to achieving consistency in the application of relevant legal principles. For that reason, so-called ‘comparable cases’ are not precedents. In the context of sentencing, no two cases can be alike. The factors that inform the exercise of the discretion in each case, and the weight to be attributed to those factors, vary significantly in determining the sentence that is ultimately the product of the instinctive synthesis of the sentencing judge. Nevertheless, reviewed as a whole, ‘comparable cases’ may assist by revealing a possible range or pattern of previous sentences. However, the cases, to which we have referred, caution that examination of comparable cases does not have the consequence that a range or pattern of sentences, revealed by those cases, is necessarily correct, or that the upper or lower limits of those sentences are correct.[34]
[34]Lieu v The Queen [2016] VSCA 277, [46].
Before considering the ‘comparable cases’ relied on by counsel for the applicant, it is convenient, first, to discuss the basis upon which the applicant pleaded guilty to manslaughter, and the conclusions by the judge as to the gravity of his offending and his moral culpability for it.
By pleading guilty to manslaughter on the basis of criminal negligence, the applicant admitted that the omission by him, to seek treatment or assistance for Ms Brown, had fallen so far below the standard of care that a reasonable person would have exercised in the circumstances, and involved such a high risk of really serious injury to Ms Brown, that that omission merited criminal punishment.[35] Manslaughter by criminal negligence is a different species of the offence than that which is constituted by the commission of an unlawful and dangerous act that results in the death of another person. In order to establish the latter form of the offence, it must be demonstrated that the unlawful act, which caused the death of the deceased, was dangerous, in the sense that a reasonable person, in the position of the offender, would have realised that he (or she) was exposing the victim to an appreciable risk of serious injury.[36]
[35]Nydam v The Queen [1977] VR 430, 445 (Young CJ, McInerney and Crockett J); Wilson v The Queen (1992) 174 CLR 313, 333–4 (Mason CJ, Toohey, Gaudron and McHugh JJ) (‘Wilson’); R v Lavender (2005) 222 CLR 67, 87–8 [60] (Gleeson CJ, McHugh, Gummow and Hayne JJ); [2005] HCA 37.
[36]Wilson (1992) 174 CLR 313, 333.
While, generally, manslaughter by negligence might involve less culpability than manslaughter by an unlawful and dangerous act, there is no inflexible rule to that effect. The circumstances in which either form of manslaughter may be committed are infinitely variable, and, axiomatically, in each case the determination of the objective gravity of the offence and the degree of culpability of the offender must depend on the individual circumstances of the case.[37]
[37]See, eg, Jagroop (2009) 22 VR 80, 89–90 [58] (Dodds-Streeton JA), 90–1 [65]–[67] (Weinberg JA); [2009] VSCA 46.
In the present case, the judge considered that the applicant’s offending was a ‘very serious example of manslaughter by criminal negligence’.[38] Counsel for the applicant did not take exception with that characterisation of the gravity of the offending. In our view, his Honour’s conclusion, to that effect, was soundly based.
[38]Reasons [54].
It is clear that, from the time that the applicant removed Ms Brown from the Hyundai vehicle in the garage, she had sustained particularly serious injuries. Importantly, by his own admission, the applicant was substantially aware of her condition. In the police interview, he said that when he found Ms Brown in the vehicle, there was ‘blood everywhere’, that it was ‘over her whole body’, that she was ‘covered in blood from head to toe’, and that she had ‘bruising everywhere’. He said that Ms Brown’s face was ‘all blown up, she had so many cuts’, that she had ‘cuts on the back of her head’, and that ‘her neck was swollen’. The photographs, that were in evidence on the plea, graphically depict the extensive and severe nature of the injuries that had been inflicted on Ms Brown. In those circumstances, it must have been obvious to the applicant, from the outset, that Ms Brown had been subjected to a severe assault and that her condition was particularly serious. Equally, it must have been clear to the applicant that Ms Brown was in urgent need of medical attention. Taking into account, and giving full weight to, the applicant’s intellectual limitations, nevertheless it is inconceivable that he would not have appreciated that in the absence of proper medical attention, Ms Brown’s health was at risk of severe deterioration.
Further, the applicant was fully aware that during the ensuing period of four days, Ms Brown’s condition was not improving, but that it had deteriorated. He told the police that the injuries ‘got worse over the days … cuts and these red spots that turned black on the breast’. He claimed that he said to Ms Brown ‘You’re gonna die baby, you’re gonna die’, when he was trying to persuade her that he should telephone emergency services. That admission revealed that the applicant was aware — as would have been obvious to anyone — that Ms Brown’s condition was becoming dire.
The period of the offending was protracted, lasting for at least four days. During that time, the applicant administered what could only have been pathetically inadequate assistance to Ms Brown. During that period, she did not eat anything, and he had difficulty administering water to her by use of a syringe. She was lying on the hard floor of a bathroom with little alleviation from her pain, discomfort and suffering. The inference is irresistible that she must have been particularly distressed. In the interview, the applicant told the police that by the Saturday night (immediately preceding her death), Ms Brown seemed to be rambling and incoherent.
A further aggravating feature of the offending was that during the whole of that period, the applicant’s three young children were able to observe and witness what was going on. The applicant told the police that during that period the children were ‘getting up and they were looking at her’. The applicant’s failure to shield his children from the trauma of viewing their mother suffering, and his failure to respect her feelings about having her children observe her in such a state, added measurably to the applicant’s moral culpability.
In the circumstances, the duty of care owed by the applicant to Ms Brown was particularly high. She was in a severely debilitated state, and as such was vulnerable, in the home that she shared with the applicant. He was her husband, and she was the mother of his three young children. She was totally dependent on him for her well-being, care and survival. The necessary step, to discharge that duty of care, was simple and straightforward. The only action required of the applicant, to discharge that duty, was to use the telephone to contact emergency services in order to summon assistance. The applicant was not able to proffer any credible explanation why he had desisted from taking that step. The judge, understandably, rejected the explanation that he gave, namely, that Ms Brown was worried that DHHS would remove the three children from them if emergency services were summoned. We interpolate that, in any event, such an explanation would have been entirely inadequate. However, the applicant fell to be sentenced on the basis that there was no credible explanation why he had desisted from taking the simple step that might have saved the life of Ms Brown, and alleviated her terrible suffering.
It is for those reasons that the judge was justified in concluding that the applicant’s offending was a very serious example of manslaughter by negligence. Plainly it was.
The judge was not satisfied that the applicant’s intellectual disability, or that his psychological disorders, diminished his capacity to understand the nature and gravity of his offending, and thus his Honour concluded that it did not justify any moderation of the applicant’s moral culpability.[39] There was no challenge to those findings by the judge on this application. For the reasons we have discussed, in our view his Honour’s conclusions, to that effect, were correct.
[39]Ibid [88], [91].
On the other hand, the applicant had available only limited mitigating circumstances. Principally he had pleaded guilty, which the judge found had an important utilitarian effect, sparing the victims the ordeal of a contested committal proceeding and trial. The judge also found that he had evinced a limited degree of remorse. However, the evidence did not demonstrate that the applicant’s psychological and intellectual issues would render a term of imprisonment more onerous for the applicant. His prospects of successful rehabilitation rose no further than being characterised as ‘reasonably open’.
Accordingly, the applicant came to be sentenced for what the judge correctly described as a very serious example of manslaughter by negligence, in respect of which his moral culpability was correspondingly high. On the other hand, apart from his plea of guilty, and the utilitarian effect of it, there was little that he could rely on in mitigation of sentence. In those circumstances, it was appropriate that a stern sentence be imposed on the applicant, in order to fulfil the sentencing purposes of denunciation, general deterrence and specific deterrence.
In light of those considerations, and bearing in mind the principles that we have outlined relating to current sentencing practices, we turn to consider the sentences that were imposed in the cases relied on by counsel for the applicant. In doing so, we will discuss those sentencing decisions in more detail than would ordinarily be the case, largely out of deference to the quality of the submissions made by counsel for the applicant. However, it is important to bear in mind the admonition, contained in the passage from the judgment in Lieu to which we have referred[40], that sentencing decisions are not precedents.
[40]Above [47].
In Jagroop, the offender, in the course of a verbal argument, pushed his wife, causing her to fall onto the concrete footpath. As a consequence, her head struck the footpath, and rendered her unconscious. The offender chose not to summon help, but instead he dragged his wife to the other side of the road and down a slope, where he left her. He subsequently told lies to his mother and the police about his wife’s whereabouts. The victim died from an upper airway obstruction in association with the head injury. The offender was sentenced to 10 years’ imprisonment with a non-parole period of seven years, after pleading guilty to one charge of manslaughter.[41] On appeal, the sentence was reduced to eight years’ imprisonment with a non-parole period of five years and six months.[42] The Court took into account the offender’s concealment of his wife’s whereabouts as an aggravating factor in his sentence.[43] By way of mitigating circumstances, it was accepted that the offender had acted out of a sense of panic and stupidity, he was comparatively youthful, he had no previous convictions, and it was likely that he would serve a substantial part, if not all, of the remainder of his sentence in protective custody.[44]
[41]Jagroop (2009) 22 VR 80, 80 [1], 81–2 [10] (Dodds-Streeton JA); [2009] VSCA 46.
[42]Ibid 90 [60].
[43]Ibid 84 [30].
[44]Ibid 91 [70]–[71] (Weinberg JA).
In Reid, the offender was convicted, after a trial, of one charge of manslaughter by criminal negligence of his de facto wife, and one charge of recklessly causing her injury. The offender and the deceased had been engaged in a heavy drinking session, when the offender gave her a ‘backhander’ which split her lip. Later, in the course of an argument, the offender swung his wine cup at the deceased, striking her on the top of the head, and inflicting a laceration that penetrated the full thickness of the skin of her scalp. The couple went to bed that evening. On the following morning, the offender woke to find that the pillows and sheets were soaked with blood. He made no efforts to render aid to the victim, such as to bandage her wounds. Nor did he seek medical assistance for her. He left the home at about 9.00 or 10.00 am, and visited his brother’s home. He did not return home until between 5.30 and 6.00 pm, when he found that the deceased had passed away. The cause of death was the interaction between blood loss from the deceased’s head wound and the victim’s pre-existing conditions of an enlarged heart and alcohol related liver disease.[45] The offender was sentenced, at first instance, to five years’ imprisonment with a non-parole period of three years.[46] In his reasons for sentence, the sentencing judge accepted that the offender’s culpability was ‘at the lower end of the negligent manslaughter spectrum’.[47] The offender was found to have cognitive defects, comprising a marked impairment of his executive skills and a severe impairment of memory for verbal information. He was also severely depressed. Accordingly, imprisonment would be a greater burden on the offender by reason of his state of health. The judge also accepted that specific and general deterrence should be moderated by reason of the offender’s ill-health at the time of his offending.[48]
[45]R v Reid [2009] VSC 326, [5]–[10] (Whelan J).
[46]Ibid [42].
[47]Ibid [25].
[48]Ibid [34]–[35].
Finally, in Blackwell, the offender had been living with the deceased for a short time as his partner and registered carer. On the day of the incident, they, together with another male, checked into a hotel. In the course of an argument, the other male launched a savage attack on the victim which led to his death. The offender witnessed the attack and did nothing to intervene. Text messages that were sent by her at the time revealed that at the time she was aware that, as a consequence of the injuries he sustained, the deceased needed urgent medical attention. However, no medical attention was obtained for him, and he died shortly afterwards.[49] After a plea, the offender was sentenced to three years and nine months’ imprisonment on the charge of manslaughter by negligence, and six months’ imprisonment on a second charge of attempting to obtain property by deception. The total effective sentence was four years’ imprisonment with a non-parole period of two years and six months.[50]
[49]Blackwell [2013] VSC 499, [3]–[6] (Curtain J).
[50]Ibid [29]–[32].
In Blackwell, the offender had experienced a deprived and troubled background. Her mother had formed a relationship with an extremely violent man, and the offender had suffered physical, mental and possibly sexual abuse at his hands at a young age. Subsequently, at the age of 18 years, she was raped, and she became pregnant. She then formed a relationship with a man who was violent to her. In the course of that relationship, and a subsequent relationship, she had seven children.[51] As a result of her early experiences, the offender had suffered major depression, post-traumatic stress disorder, polysubstance abuse and features of a borderline personality disorder.[52] In sentencing the offender, the judge took into account that she had pleaded guilty, and had manifested remorse and regret. Further, her Honour took into account the abuse and dysfunction that had characterised her childhood and adult years.[53]
[51]Ibid [14]–[15].
[52]Ibid [18].
[53]Ibid [26]–[27].
Pausing there, it is evident that in each of the three sentencing decisions, relied on by counsel for the applicant, the particular offender had available significant mitigating circumstances which were not available to the applicant in this case. In each case, the nature of the offending, and the circumstances of the offending, was different. At the most, a comparison between those cases and the present case could only be made with a broad brush.
We turn, briefly, to the sentences in the other three cases referred to by counsel for the applicant, namely Lai, Vandergulik and Russo. It will be recalled that while those cases involved sentences for the offence of manslaughter by criminal negligence, in each of them the negligence was constituted by an act or acts of the offender, as distinct from an omission.
In Lai, the offender was convicted at trial of manslaughter by criminal negligence, in that he had accidentally shot his girlfriend in the head with a weapon, which he believed was unloaded at the time. The jury acquitted the offender on the charge of murder.[54] He was sentenced to 9 years and 5 months’ imprisonment with a non-parole period of 6 years and 11 months (both the head sentence and non-parole period were reduced by one month to give effect to such a period lost by pre-sentence detention). Before trial, he had offered to plead guilty to manslaughter. The sentencing judge regarded the offender’s offending as a ‘comparatively serious instance of manslaughter by criminal negligence’.[55] The judge was satisfied that the offender was genuinely remorseful, having telephoned triple 0 immediately after he had shot his girlfriend, and spent the next half hour desperately trying to save her life.[56] The judge described the triple 0 telephone call as being ‘harrowing listening’.[57] The offender’s prospects of rehabilitation were reasonable, and it was unlikely that he would re-offend in the same way.[58]
[54]Lai [2015] VSC 346, [8] (Croucher J).
[55]Ibid [46].
[56]Ibid [58].
[57]Ibid [59].
[58]Ibid [63].
In Russo, the offender had taken a loaded gun to confront a person who had run over and fatally injured his dog. While doing so, he slipped, the firearm struck the driver’s side window of the vehicle, and it discharged. The victim was struck by the bullet and died as a result.[59] The judge assessed the objective gravity of the offending as being towards the ‘lower end of the spectrum’.[60] The offender had pleaded guilty despite having an arguable defence, and he had made full admissions.[61] The judge found that he had evinced ‘profound remorse’.[62] The offender had no previous convictions, he was a person of exemplary character, and he had made outstanding contributions to the community.[63] The judge assessed the offender’s prospects of rehabilitation as being excellent.[64] He sentenced the offender to five years’ imprisonment, with a non-parole period of two years and six months.[65]
[59]Russo [2018] VSC 395, [4] (Croucher J).
[60]Ibid [116].
[61]Ibid [154].
[62]Ibid [157].
[63]Ibid [175].
[64]Ibid [176].
[65]Ibid [200]–[201].
In Vandergulik, the offender entered a late plea to the offence of manslaughter by criminal negligence.[66] The victim and the offender had been in a relationship.[67] In the course of an altercation between them, the offender struck the victim with a walking stick. She believed that the blow and the resulting fall had killed the victim. However, in fact he was still alive. She put his body into a vehicle, staged an accident, and set the vehicle on fire.[68] When questioned by the police, the offender made a number of false oral and written statements.[69] She was sentenced 9 years’ imprisonment with a non-parole period of 6 years.[70] The judge considered that the offence constituted ‘a most serious example of the crime of manslaughter by criminal negligence’.[71] The offender was a highly experienced nurse, and it would have been a simple matter for her to ascertain whether or not her husband was alive. Accordingly her culpability was ‘considerable’.[72] The offender had previously suffered a severe back injury, which had required her to undergo multiple surgical procedures. The judge accepted that her state of health and her age had the effect that imprisonment would be somewhat more burdensome for her.[73]
[66]Vandergulik [2009] VSC 3, [2] (Kellam J).
[67]Ibid [6].
[68]Ibid [20].
[69]Ibid [10].
[70]Ibid [44].
[71]Ibid [26].
[72]Ibid [24].
[73]Ibid [35].
The foregoing review, of the sentences in other cases relied on by counsel for the applicant, unsurprisingly reveals that the circumstances of the offences and the offending in each of those cases were quite different. As such, in each case the court’s assessment of the objective gravity of the offence, and the offender’s moral culpability, differed. Similarly, the mitigating circumstances of the offender, in each case, varied, and were qualitatively different, and indeed more substantial, than in the present case. As is the position in most cases, the sentencing decisions relied on only provide a guide as to current sentencing practices in the broadest sense.
Taking into account the seriousness of the applicant’s offending, his moral culpability, his mitigating circumstances, and our assessment of current sentencing practices, it might be concluded that the sentence imposed on the applicant in the present case was stern. However, we are not persuaded that the sentence was wholly outside the range of sentences available to the judge, so as to be manifestly excessive. In light of the serious nature of the offending, and the extent by which the applicant failed to comply with his duty of care to Ms Brown, the sentencing purposes of denunciation and general deterrence were of particular importance. Ultimately, giving appropriate weight to those purposes, and to the gravity of the offending, we are not persuaded that the sentence imposed on the applicant was wholly outside the range of sentences available to the judge so as to bespeak error.
Accordingly, for those reasons, we would refuse the applicant leave to appeal against sentence.
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