Nicos Kiril (a Pseudonym)[1] v The Queen
[2019] VSCA 133
•14 June 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0271
| NICOS KIRIL (a Pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure there is no possibility of the identification of the applicant’s children, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 14 June 2019 |
| DATE OF JUDGMENT: | 14 June 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 133 |
| JUDGMENT APPEALED FROM: | [DPP v Kiril & Anor] (Unreported, County Court of Victoria, Judge Carmody, 5 October 2018) |
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CRIMINAL LAW – Appeal – Sentence – Reckless conduct endangering life – Applicant provided inadequate care for his elderly mother putting her in danger of death – At time of death victim living in squalid conditions, weighing 34 kilograms and covered in sores – Late guilty plea – Applicant sentenced to 18 months’ imprisonment with non-parole period 12 months – Whether sentence manifestly excessive because of delay – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Backwell | |
| For the Respondent | Mr JCJ McWilliams | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA:
On 13 October 2013, the applicant’s mother, ‘PJG’, aged 83 years, died.
The next day, Dr David Ranson, carried out a post-mortem examination of the body of PJG, and concluded that PJG died as the result of bronchopneumonia in a setting of cerebral infarction. His findings included that PJG, who weighed a mere 34 kilograms at the time of her death, had:
· six bruises or scabbed abrasions on her head, including a four centimetre bruise in the mid-part of her forehead;
· ten bruises or scabbed abrasions on her chest and abdomen;
· twelve scabbed abrasions on her arms, including one which was twelve centimetres in length;
· eighteen bruises and scabbed abrasions on her feet and legs, including one fourteen centimetres in length, and some containing pus and abscesses;
· a number of scabbed abrasions and pressure sores to the rear of her body;
· no drugs in her system, including that prescribed to control her epilepsy;
· ischaemic heart disease and cerebral infarction; and
· bronchopneumonia associated with significant amounts of aspirated food material in her airways.
Professor Joseph Ibrahim, a specialist in geriatric medicine, expressed the opinion that PJG was the victim of severe neglect or elder abuse.
Based on the medical evidence, it is clear that for an extended period prior to her death, the applicant and his wife, ‘DK’, severely neglected PJG — who was elderly, frail and dependent upon them for her care — and permitted her to subsist in squalid conditions. Indeed, their treatment of her was nothing short of inhumane.
On 18 October 2013, the applicant and DK were interviewed by police. Both provided ‘no comment’ interviews, and were released pending further enquiries. Police did not charge the applicant and his wife, however, until 12 July 2016. A year later, on 13 July 2017, they were committed for trial.
An indictment against the applicant and DK was subsequently filed in the County Court; and, on 26 September 2018, both pleaded guilty before a judge of that court to a charge of reckless conduct endangering life,[2] alleging that they
at Noble Park in the State of Victoria between the 31st day of May 2012 and the 13th day of October 2013 without lawful excuse recklessly engaged in conduct namely:
A providing inadequate aged care to [PJG]; and/or
B providing no professional medical attention to [PJG];
that placed the said [PJG] in danger of death.
[2]Crimes Act 1958, s 22. The maximum penalty is 10 years’ imprisonment.
In the course of a plea hearing conducted on 26 September 2018, the prosecutor informed the sentencing judge that, as a matter of law, a suspended sentence of imprisonment was an available sentencing option.[3] He added:
But just for the sake of putting my instructions properly and clearly, the prosecution concedes that a Community Correction Order is an appropriate sentence.
[3]See Sentencing Act 1991, s 149C(4).
Notwithstanding the prosecutor’s submission that a community correction order (‘CCO’) was ‘an appropriate sentence’, on 5 October 2018 the judge sentenced the applicant to be imprisoned for 18 months, and fixed a non-parole period of 12 months.[4]
[4]DK was sentenced to a total effective period of 12 months’ imprisonment, wholly suspended for a period of two years.
The applicant now seeks leave to appeal against sentence on a single ground, formulated as follows:
1. The sentence imposed is manifestly excessive in all the circumstances.
Particulars
The Learned Sentencing Judge gave insufficient weight to the delay in these proceedings being finalised.
For the reasons that follow, I would refuse leave to appeal.
Background
The applicant, born on 15 September 1966, was the son of PJG, born on 19 April 1930. DK, born on 1 March 1972, was his de facto wife. The charge to which they both pleaded guilty arose from the lack of care that they gave to PJG between 31 May 2012 and 13 October 2013, while PJG was residing with them and four of their children.
In about 2004, PJG commenced living with the applicant and DK (and their four children) in a house in Cranbourne. That house was destroyed by fire in November 2005, so that for the next few years the family lived in makeshift accommodation on the block where the house had been. Whilst so residing, on 30 January 2006 DK applied to Centrelink to be registered as PJG’s carer. DK was approved as carer of PJG and received payments from Centrelink for that purpose.
Significantly, on 12 June 2008, PJG was transferred to a supported residential service where she remained for six months, before returning to live with the applicant, DK and their family. The evidence demonstrates that during her residence at the supported residential service (described by the sentencing judge as a ‘nursing home’), PJG was still active and in receipt of regular medical attention, and that she lived and was cared for in clean and congenial conditions.
Subsequently, in May 2009, after PJG had returned to the care of the applicant and DK, DK completed a Centrelink form reviewing her care of PJG, so that she might continue to receive payments as a carer. Over the next four years or so, money was paid into DK’s bank account by Centrelink, ostensibly for her care of PJG.
Importantly, from 2000 to 2009, PJG was under the care of a general practitioner whose records indicated that she attended the clinic almost monthly over that period (137 consultations in total). And records of the supported residential service showed that, during her time there, PJG demonstrated that she was an independent lady who required minimal assistance; that she was capable of self-medicating; that she ate well and had no problems with nutrition; and that when she required medical assistance, it was provided. Medical records also indicated that PJG had suffered from epilepsy all of her adult life, and was on medication for this condition from when she was about 16 years of age. After returning to live with the applicant, DK and their family, however, PJG’s visits to her doctor became irregular, so that she attended her doctor only five times (the last being on 31 May 2012, about 16 months before her death).
The charge related to the period 31 May 2012 to 13 October 2013, when PJG was found deceased in her bed. During that period, PJG did not receive any medical treatment or have any prescriptions filled. The evidence was that, prior to her death, she lived in squalid conditions. She had been the victim of severe neglect by the applicant and DK. The reckless conduct that the prosecution relied on was the failure of the applicant and DK to seek any medical treatment for her from 31 May 2012 until the time of her death, in combination with the general living conditions that she was subjected to during that period.
The plea
On the plea, counsel for the applicant submitted that a CCO was the appropriate sentence.
The applicant, counsel informed the judge, was educated to Year 8. He had held a number of different unskilled jobs, but had not worked since 2000. Since 2009, the applicant had been on a disability support pension, his eldest son being his carer. Counsel told the judge that the applicant had a number of medical conditions which would make a term of imprisonment for him more burdensome, including diabetes, morbid obesity, chronic back pain and chronic shoulder pain. The applicant needed the assistance of a walking stick, and was on a number of medications, including anti-depressant medication, pain medication and diabetic medication.
Following the destruction of the family home, counsel informed the judge, the applicant had a strong belief that his family had been let down by the authorities with respect to the provision of emergency housing, and with respect to their eviction from the property on which they had been living. As a result of his substance abuse, the Department of Health and Human Services had intervened with respect to the welfare of the applicant’s children, leading to their removal on two occasions for months at a time. In order for the children to be returned, the applicant had been required to provide urine samples. The applicant’s days were spent driving his children to various schools, watching movies and ‘YouTube’ videos, and playing ‘Xbox’.
Counsel tendered a report by Dr Danny Sullivan (Exhibit G3), a consultant forensic psychiatrist, who had assessed the applicant. Among other things, Dr Sullivan provided the following opinions:
[The applicant] describes abuse of alcohol, stimulants and cannabis. I consider that he would meet criteria for polysubstance abuse, as set out in the International Classification of Diseases (ICD-10). It is not clear that his substance use is the cause of his squalid living conditions, but it is likely to contribute both through financial impost and negative impact upon his capacity to manage the demands of living.
Ms Cidoni’s testing[[5]] indicates significant personality dysfunction, with a preponderance of descriptors of interpersonal difficulties and self-absorbed attitudes. Clinically, however, he does not present as having a schizotypal disorder or schizotypal personality disorder. Such individuals do not tend to have families and have a range of odd and eccentric beliefs.
I consider that [the applicant] would meet criteria for a mixed personality disorder with paranoid, avoidant, obsessive-compulsive and antisocial traits. Of interest, over time his family may come to have shared his beliefs, or his partner (whom I have not assessed) may have either come to accept them or may have had similar beliefs. [The applicant] externalises responsibility and has described not being able to eat properly, maintain personal hygiene, keep the house clean, or pay bills, for a range of reasons which he considers are not about his own issues.
Hoarding is a behaviour which may be, but is not necessarily, associated with a range of psychiatric diagnoses including dementia, psychosis, anxiety disorders and personality disorder. It has been accorded a separate diagnosis in the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5), but not in the ICD-10. In [the applicant’s] case, I consider that personality disorder is the most likely association with his hoarding. He describes his father as also having collected junk. His hoarding appears associated with a reluctance to discard objects. He is avoidant of cleaning and is essentially unconcerned about the squalid conditions described in the brief of evidence. Hoarding as a diagnosis may describe or potentially explain [the applicant’s] alleged living conditions, but does not explain how or why he might have, as alleged, neglected the care of his mother or been unconcerned about her lengthy, significant and progressive deterioration in health and behaviour preceding her death.
There is no indication that any mental disorder apart from personality disorder could have been associated with the degree of neglect of his mother’s health alleged in the brief of evidence. [The applicant] claims that his partner was responsible for the health of his mother and disclaims any personal responsibility. There is no indication of any mental illness which would have prevented him appreciating and understanding his mother’s health concerns or her alleged neglect.
[5]Ms Gina Cidoni is a consultant psychologist.
While the applicant’s plea was entered late, counsel submitted that it was a significant plea which avoided his children being cross examined, and avoided what would have been a difficult trial (including avoiding the need for a jury to look at unsettling photographs).
Counsel also submitted that, since the events leading to the charge were alleged to have occurred in 2012 into 2013, a suspended sentence of imprisonment was an available sentencing option.
As I have indicated, although the prosecutor agreed that a suspended sentence was available, he submitted that a CCO was appropriate.
In relation to delay — which had not been adverted to by the applicant’s counsel as part of his plea — the prosecutor submitted:
The death of [PJG] occurred in October 2013 ... The particular member [of the Homicide Squad] who had this inquiry from the outset, (a) suffered from their own mental health issues, stress and the like, and this job got shelved to a certain extent whilst other — to that person — more important jobs were going on for a period of time until the charges were laid in August 2016.[6] So that’s by way of explanation rather than excuse.
[6]The charges filed in the Magistrates’ Court bear the date 12 July 2016.
Reasons for sentence
The judge sentenced DK to 12 months’ imprisonment, wholly suspended for two years.
In sentencing the applicant, the judge referred to his personal circumstances, including that he was an only child; had left school at Year 8; and had had 40 different jobs because, as he told Dr Sullivan, he ‘had trouble getting up and would be sacked for missing too many days at work’. The judge noted that the applicant suffers from diabetes, morbid obesity, chronic back pain and chronic shoulder pain, and is on medications to assist with these conditions.
With respect to the applicant’s intelligence, the judge said that a consultant psychologist, Ms Cidoni, had assessed it to be ‘average’ (DK, on the other hand, being borderline intellectually disabled). The judge also noted that Dr Sullivan had reported that the applicant ‘claims that his partner was responsible for the health of his mother and disclaims any personal responsibility’.
The judge then set out the relevant sentencing principles. He said that he had ‘reviewed’ Boulton[7] in considering if a CCO would be appropriate. His Honour said that the applicant was assessed as suitable for a CCO, but that that ‘is not the end of the matter’.
[7]Boulton v The Queen (2014) 46 VR 308.
As to the applicant’s plea of guilty, the judge said it was ‘indicated at an earlier stage’ and had ‘utilitarian value’. But the judge remarked:
Your plea of guilty really reflects your regret, rather than a true demonstration of remorse for your offending. You still blame your de facto wife for these tragic events.
The judge said that he regarded the applicant’s moral culpability as ‘more significant’ than DK’s, whom the applicant knows to be of ‘borderline intellect’. His Honour observed:
You were the only child of the victim in this offending, [PJG]. You had the responsibility to care for and ensure the wellbeing of your mother. You arranged to have her move from the safe and satisfactory nursing home environment to come and live in your home and its attendant squalid conditions. You did not ensure your mother had adequate medical treatment. You well knew your mother suffered from epilepsy and required medication for it. You failed to even ensure your mother had her medication. Your culpability for this offence is high.
The seriousness of this offending is more marked when the victim of your offending is a frail elderly person who could do little to help herself and was completely dependent on you, her only son and your family for care and protection. …
Importantly, the judge gave the following reasons for rejecting the prosecution’s concession that a CCO was appropriate:
You have no relevant prior convictions and indeed the prosecution allege no matters against you. Your counsel submitted a CCO was an appropriate disposition on the day of your plea. The learned prosecutor submitted that a CCO was in the range of an appropriate penalty.
I was of the view that a CCO did not satisfy the requirements of just punishment. I set this matter down for further mention and submissions on 3 October 2018. I heard further submissions about sentence and relevant legislation relating to suspended sentences.
I have sentenced your de facto wife to a suspended sentence. Your case is different to hers. You had the primary moral responsibility to look after your mother once she was removed from the nursing home. You are, as I have said before, of average intelligence. Your wife is borderline intelligence. You were and are the decision maker in the household. You have neglected your mother in an extreme manner over an extended period of time.
The principles of general and specific deterrence, just punishment, denunciation of your criminal conduct demand a term of imprisonment to be served immediately is the only just sentence in this case. In fixing a different sentence for you compared to your de facto wife, I have taken into consideration the principles of parity between co-offenders. I assess there are significant differences in your culpability and personal circumstances, as I have set out here in these reasons to your sentence and that is why I sentence you in a different manner to that of your de facto wife.
Submissions in this Court
The submissions of counsel for the applicant set out in the written case were somewhat economical. They were:
Argument
2. A sentence is manifestly excessive if the excess is ‘obvious, plain, apparent or easily perceived or understood and unmistakeable’.[8]
3. Whether a sentence is manifestly excessive does not permit much argument.
4. The sentence imposed by the Learned Sentencing Judge does not take into account sufficiently the five year delay.
5. The Learned Sentencing Judge made no specific reference to the 5 year delay in the sentencing remarks that pertain to [the applicant]. It was mentioned in relation to the co-accused [DK]. His Honour did say that the sentencing considerations are the same as for [DK].
6. The delay in this matter being finalised is significant. [PJG] died in the family home on 13 October 2013. It was a number of years before [the applicant] and the co-accused were charged. Whilst this matter was hanging over [the applicant’s] head he did manage to rehabilitate himself and re-unite the family (i.e. getting the younger children out of care and back living in the family home).
[8]Counsel cited Hanks v The Queen [2011] VSCA 7.
In sensibly minimalist oral submissions, counsel for the applicant in essence adopted his written submissions.
Despite the submission to the trial judge that a CCO was appropriate, counsel for the respondent in this Court submitted that, given the constellation of factors bearing on the imposition of sentence, the applicant’s sentence could not properly be said to be wholly outside the range of sentencing options available to the sentencing judge.
The applicant’s conduct was, so it was submitted, a serious example of the offence of reckless conduct endangering life. A number of aspects attending the applicant’s offending were relied upon, it being submitted in writing that PJG’s ‘living conditions leading to her demise can only be described as cruel, heatless and inhumane, putting the applicant’s moral culpability at the high end of the spectrum’. Just punishment, denunciation, and general deterrence, it was submitted, all ‘had to figure in the sentence’.
Counsel for the respondent submitted that there was little raised upon the plea to mitigate the offence. Although the applicant pleaded guilty, the plea was late. The respondent’s counsel argued that the applicant had raised no Verdins[9] issues, and, unlike DK, the applicant was of average intelligence. Moreover, there was no true remorse present, the applicant seeking to blame others for his mother’s neglect.
[9]R v Verdins (2007) 16 VR 269.
As to delay, counsel for the respondent submitted that although DK’s anxiety had worsened because of delay, there was nothing to indicate that the applicant had been similarly affected. The judge, it was submitted, was aware of the delay, as is plain from his reference to it when sentencing DK. It was submitted that counsel for the applicant upon the plea did not press delay as a significant mitigating factor, simply arguing that, by virtue of when the offences occurred, a suspended sentence was open. Having not pressed the issue of delay upon the plea and argued that it was significantly mitigating in his client’s case, the respondent’s counsel submitted, ‘the applicant cannot be heard now to complain’. In any event, not every case of delay warrants a reduction of sentence.[10]
[10]Counsel cited R v Nikodjevic [2004] VSCA 222, [22] (Ormiston JA).
Analysis
The applicant’s sole ground complains that the sentence is manifestly excessive, and ties that asserted manifest excess to the judge’s claimed failure to give sufficient weight to the delay in the proceedings being finalised.
A finding that a sentence is manifestly excessive does not depend, however, upon discrete error having first been established. Thus, it was observed in Leimonitis:[11]
As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[12] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[13] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[14] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[15]
[11]Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA, Weinberg JA agreeing) (citations as in the original).
[12]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]-[52].
[13]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[14]Ibid.
[15] Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15].
As I have said, in his submissions to the sentencing judge on the plea, counsel for the applicant failed to rely on delay (in any sense). Although that failure places an obstacle in the applicant’s way, it does not necessarily foreclose a submission on appeal that the sentencing judge failed to give sufficient weight to delay. Hence, in Talia,[16] a dishonesty case in which counsel on the plea did not rely on delay — there had been a gap of six years between the offence and the sentence, and four years between first interview and sentence — on appeal the Court observed:[17]
Strangely, despite the potential relevance of delay as a matter standing in mitigation of sentence, nothing was squarely said about it on the plea; and, perhaps for that reason, the learned judge said nothing specifically about it in his sentencing remarks. His Honour did refer to a little of the chronology which we have set out above, but he did not do so in a presently relevant manner. …
In our opinion, there is force to the submission for the appellant that the learned judge either did not bring the very considerable delay to account, or else that he under-weighed it. Delay may stand as a powerful mitigatory feature. If the accused has not re-offended in a lengthy period between offending and sentence, it will tend to show that there is an enhanced prospect of rehabilitation. There is also a question of fairness in the event that a matter is left hanging over an offender’s head during an apparently leisurely process of investigation and prosecution. The longer the period of delay, the greater its likely weight as a mitigatory circumstance, particularly when the delay is not attributable to the conduct of the accused. Again, whilst it is not necessary for delay to operate as a circumstance of mitigation, that it be unexplained, the fact that it is not attributable to the conduct of the accused will likely make it of greater significance.[18]
[16]R v Talia [2009] VSCA 260 (Ashley and Weinberg JJA).
[17]Ibid [21]–[22] (citations as in original).
[18]See, generally R v Miceli [1998] 4 VR 588 at 589 (Tadgell JA); R v Cockerell (2001) 126 A Crim R 444 at 447 [9]–[10] (Chernov JA); R v Merrett, Piggott and Ferrari (2007) 14 VR 392 at 399–400 [33]–[36] (Maxwell P); R v Katsoulas [2008] VSCA 278 [9]–[13] (Redlich JA). Compare, on the facts, R v Thompson [2009] VSCA 13, [28]–[32] (Dodds-Streeton JA).
Given the manner in which the applicant’s case was advanced, the proper approach for this Court to adopt is to consider the circumstances of the offence and those of the applicant, instinctively synthesising the aggravating features and those going in mitigation — including the considerable delay — to determine whether the sentence imposed by the judge is wholly outside the range open in the sound exercise of discretion.
It must be acknowledged that the delay was considerable. PJG died on 13 October 2013. But, despite the applicant and DK being interviewed by police within a week of her death, no charges were laid until almost three years later, on 12 June 2016, that delay apparently being attributable to the dilatory approach taken by police. There was then a delay of another year before they were committed for trial on 13 July 2017; and a further delay of a little over a year before they were sentenced on 5 October 2018 (that is, a few days short of five years after PJG’s death).
Ordinarily, a delay of that order would constitute a very powerful mitigating factor, going to rehabilitation and to fairness.[19] If there has been a lengthy period of rehabilitation, there will be circumstances where the results of that rehabilitation should not be impaired or destroyed by a sentence principally driven by deterrence, denunciation and punishment. Moreover, where a person has endured the stress and uncertainty of having the Damocletian sword of impending sentence hung over his or her head for an inordinate period, fairness dictates that factor should ameliorate sentence when finally imposed.
[19]R v Merrett (2007) 14 VR 392, 400 [35].
Neither of those aspects were, however, present to any significant degree in the applicant’s case. True it is that the applicant had taken steps to control his substance abuse, so as to see his children retuned to the home, but he had developed no insight into his offending, blaming DK for the detestable manner in which his mother was treated, and disclaiming any personal responsibility. Indeed, although the sentencing judge made a distinct finding that DK’s prospects of rehabilitation were ‘good’, he made no such finding with respect to the applicant. Relevantly, Dr Sullivan summarised some of Ms Cidoni’s psychological findings concerning the applicant as follows:
She found him to be of average intellect. Personality testing noted ‘somatisation, pessimistic and whiny qualities, placing his needs before others … turmoil and chronic complaining … poor social skills … guarded and defensive … denial … unwillingness to acknowledge psychological problems … lack of insight into his own behaviour … irresponsible … friendships are minimal and lack depth.’
Moreover, there appears to be no material supporting the notion that the applicant suffered any stress or anxiety as a result of the delay. Had there been such material, one might have expected that it would have been placed before the sentencing judge.
Beyond the delay, there was little that mitigated the offence. The applicant had, of course, pleaded guilty (albeit late), that plea having utilitarian value. It could not be said, however, that the applicant was wracked with remorse. He lacked insight into his offending, blaming others for the ill-treatment of his mother. Further, unlike DK, the applicant was of average intelligence, and not afflicted by any relevant mental disorder or other condition which might bear upon his moral culpability.
It is important to understand that, by his plea of guilty to the charge of reckless conduct endangering life, the applicant acknowledged that he provided inadequate care to his mother, and provided no professional medical attention her, in circumstances where he foresaw the probable consequences of that conduct was to place her in danger of death (in circumstances where a reasonable person in the position of the applicant — engaging in the very conduct in which he engaged and in the same circumstances — would have realised that PJG was placed in danger of death).[20]
[20]R v Abdul-Rasool (2008) 18 VR 586, 591 [19].
The victim of the applicant’s offending was elderly and frail and — at least at some point once she had returned from the nursing home to live with him —
incapable of adequately caring for herself. Her pitiable condition at the time of death — weighing a mere 34 kilograms and covered in sores — is distressing, and the source of a deal of pathos. She was in that condition because of the applicant’s callous disregard for her welfare, suffering her to live in squalor without any semblance of proper care. The respondent’s description of the applicant’s treatment of his mother as cruel, heatless and inhumane is entirely apt. It was, I consider, very serious and protracted offending.
Weighing the objective seriousness of the applicant’s offending against the few features in mitigation, I consider that the sentence imposed by the sentencing judge was well within the bounds of sound sentencing discretion. I am not persuaded that the sentence imposed is manifestly excessive. Indeed, to some minds the sentence might be thought to be lenient.
Conclusion
The proposed ground of appeal is not reasonably arguable.
I would refuse leave to appeal.
T FORREST JA
I agree with the reasons and orders proposed by Priest JA. I wish to add only this.
By his plea, the applicant admitted that, by his conduct, he recklessly endangered his 83 year old mother’s life. That means that the applicant admitted he foresaw that his conduct placed her at an appreciable risk of death, and yet he continued to neglect her. For my part, I consider that conduct to be truly reprehensible. I cannot comprehend why it was that the prosecutor took the attitude on sentence that he did at the plea hearing.
In all the circumstances — including the delay between offence and charge — I consider the sentence imposed to be extremely lenient. I should add that in the circumstances of this case — even if made the subject of proper submissions at the plea hearing — the delay simply could never erase or substantially ameliorate criminality of this order.
In my view, leave to appeal must be refused.
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