R v George - [2004] NSWCCA 247

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v George [2004] NSWCCA 247

FILE NUMBER(S):
60475/03

HEARING DATE(S): 14/7/04

JUDGMENT DATE: 19/08/2004

PARTIES:
Regina
Phillip George

JUDGMENT OF: Wood CJ at CL Adams J Kirby J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/1144

LOWER COURT JUDICIAL OFFICER: Bellear DCJ

COUNSEL:
P Power SC (Crown)
P Hamill (Applicant)

SOLICITORS:
S Kavanagh (Crown)
S E O'Connor (Legal Aid)

CATCHWORDS:
CRIMINAL LAW - manslaughter - criminal negligence - gross and wilful failure of carer to provide proper care for elderly mother - plea of not guilty - trial by judge alone - appeal against severity of sentence - mental illness - whether manifestly excessive sentence - whether adequate weight given to applicant's psychological condition - Asperger's Syndrome or social dysfunction - issue of personal deterrence and mitigation.

LEGISLATION CITED:
Criminal Appeal Act 1912 - s 6(3)

DECISION:
1. Leave to appeal granted
2.Appeal allowed, sentence below quashed, and in lieu thereof Applicant be sentenced to imprisonment for 3 years and 6 months, to date from 28 November 2002, and to expire on 27 May 2006
3.A non-parole period of 2 years, to date from 28 November 2002, and to expire on 27 November 2004.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60475/03
WOOD CJ at CL
ADAMS J
KIRBY J
Thursday 19 August 2004

Regina v Phillip George

The applicant was found guilty of manslaughter by criminal negligence on 28 November 2002 arising from his gross and wilful failure to provide his elderly mother, for whom he was primary carer, with proper nutrition, hydration, medication and medical care. The applicant seeks leave to appeal against his sentence. The sentence imposed was a term of imprisonment of 7 years with a non-parole period of 4 years.

Ground 1: The learned sentencing Judge erred in failing to give any, or any adequate, weight to the evidence of the applicant’s psychological condition

It was held that insufficient weight was given to evidence before the court to the effect that the applicant was suffering from Asperger’s Syndrome and/or other psychological problems resulting from a solitary life and social dysfunction.

Legal principle highlights the relevance of a mental disorder or abnormality in assessing the extent of an offender’s objective criminality and determining the weight to be accorded to issues of general and personal deterrence: Regina v Israil [2002] NSWCCA 255; Regina v Henry (1999) 46 NSWLR 346.

While the evidence did not suggest the applicant suffered a severe psychiatric or personality disorder, it showed that his capacity to respond to his responsibilities was impaired. Leave to appeal is granted in order for the Court to make its own assessment of the materials.

Ground 2: The sentence is manifestly excessive in all of the circumstances and a less severe sentence is warranted and ought to be imposed

The circumstances by which the Court as a court of review can intervene in an appeal against sentence are found in s 6(3) of the Criminal Appeal Act 1912. This case was one where the personal circumstances of the applicant were wholly exceptional. The practice of approaching sentencing appeals through comparison with other cases is unhelpful and not justified by authority: Regina v Morgan (1993) 70 Crim R 368; Regina v Salameh NSWCCA 9 June 1994; and Regina v Trevenna [2004] NSWCCA 43 per Barr J at 98 to 101. Issues of objective and subjective culpability differ from case to case and judicial discretion is required in the individual sentencing process. The sentence was manifestly excessive based on the particular facts of the case.

Orders:

Leave to appeal granted;
Appeal allowed, sentence below quashed, and in lieu thereof Applicant be sentenced to imprisonment for 3 years and 6 months, to date from 28 November 2002, and to expire on 27 May 2006;
A non-parole period of 2 years, to date from 28 November 2002, and to expire on 27 November 2004.

- 14 -

IN THE COURT OF
CRIMINAL APPEAL

60475/03
WOOD CJ at CL
ADAMS J
KIRBY J
Thursday 19 August 2004

Regina v Phillip George

Judgment

THE COURT: On 28 November 2002, the Applicant was found guilty by his Honour Judge Bellear after a judge alone trial, in the District Court, of the manslaughter of his 86 year old mother, Joyce May George. He was sentenced to imprisonment for 7 years with a non-parole period of 4 years. The case was one of manslaughter by criminal negligence, arising from the gross and wilful failure of the Applicant, as the primary carer of his mother, to provide her with proper nutrition, hydration, medication and medical care.
The Applicant now seeks leave to appeal against the sentence.
Facts
The objective facts as found by his Honour are compendiously recorded in the reasons for conviction, and also in the reasons for sentence. No issue is taken with them. In brief summary, it was the case that the Applicant resided at Windsor with his mother, and a sister who was developmentally disabled. He was, at the time of his mother’s death, aged 58 years. He had never been married, or had any long term relationship. For much of his life he had been unemployed, although in more recent times he had become involved in carrying out minor administrative activities for a chiropractic clinic.
The relationship between the Applicant and his brothers was somewhat antagonistic and their mother, as one of them said, “didn’t want this sort of atmosphere in the house, so we just, you know, didn’t take any further action after that”. The evidence was that the Applicant never tried to stop his family from coming to the house.In the result, the Applicant’s brothers made visits to the home that were somewhat irregular and that occurred only during his absence. During a period of hospitalisation in 1998 they were informed by their mother that they were not to arrange home care because she was embarrassed by the state of the house. There was evidence to the effect that the garden was seriously overgrown and unkempt, and that the interior was a mess with rubbish and papers, some of which were kept in bags, piled up in many rooms. The shower had not worked for some time and it appeared that the bath was not working either. Newspapers were stacked in the shower recess. The toilet leaked. Thick dust and cobwebs were evident throughout.
There was evidence from the Applicant’s family to show that the deceased had been a very domineering person, who had insisted upon having her own way, and who had not been accustomed to receiving, or tolerating, resistance from her husband or children. Her daughter in law said:
“You couldn’t go against mother. If she said something, you had to do it, otherwise it was too much of an upset to her and everybody else”.
There was also evidence to show that she had vigorously resisted all of the attempts that had been made to provide her with home care, or to take her to go to hospital where, for some reason, she had a particular aversion to being showered, describing it as “the most cruel thing on earth”.
At midday, on 20 April 2000, Central District Ambulance were called to the premises by the Applicant. When ambulance officers arrived they saw an elderly bedridden female in the front bedroom. When they approached her they noticed a putrid smell coming from the bedroom. Upon examination of the patient they saw that she was covered in “bed sores”, that she was wearing soiled clothing, and that her bed and person were covered in human vomitus, faeces, urine and body fluids, some of which were ingrained into her skin.
One officer said that when the Applicant met them at the house he said “she’s in on the bed whimpering like a dog” and added that “she’s past home care.” He also indicated that she had fallen 12 days previously.
In order to transport the victim to hospital, it was necessary for the ambulance officers to cut the bed sheets and underlay from around her, such was the extent and duration of the seepage of bodily fluids onto these items which were adhering to her body.
The open pressure sores which were present were particularly serious, one being deep enough to reveal the underlying hip and femur. Her skin was tenting, that being a symptom of severe dehydration. She weighed a mere 39 Kgs, a circumstance consistent with severe malnutrition. She was semi conscious and in such a poor condition that, despite hospital intervention, she died some 4 days later.
Dr Briggs, who summarised the treatment provided to the deceased, upon her admission to the Hawkesbury Hospital, said:
“It was felt that this 86 year old woman, who showed signs of severe neglect and malnutrition, may have had a treatable cause for her reduced level of consciousness, hypertension and hypothermia. Her dehydration, which was quite marked, and her hypercalcaemia were treated with intravenous fluids and she was given antibiotics in case there was a hidden infection which seemed likely. The cause of her hypercalcaemia was not clear.”
Dr Bogdan Hulewicz, who performed the post mortem examination, certified that the cause of death was bronchial pneumonia, the underlying causes being malnutrition and multiple decubitus ulcers on the trunk and lower limbs. He gave evidence that he would include the Proteus bacteria as an underlying cause of death, but added that at the time of the post mortem he had been unaware of the presence of that bacteria.
Associate Professor Stewart expressed the opinion that the deceased had suffered from impaired nutrition for approximately 60 days or perhaps longer. There was also medical opinion that she would have been non-responsive and close to being in a coma, for at least 5 to 7 days before the ambulance service was called.
At the time of her death, Mrs George was 86 years of age. She had been treated by Dr Warwick McKay between 6 March 1992 and 21 September 1998 for osteoporosis, hyperthyroidism, atrial fibrillation, chronic constipation, depression and mild dementia. She was admitted to hospital twice during 1998 and was assessed by Dr McKay as requiring constant ongoing medical care, of the kind that would have necessitated transport to medical facilities, or the provision of home visits. It was his account that her attendances for treatment were infrequent and that she had not been seen by him after 21 September 1998. So far as the evidence showed, no other medical practitioner saw her between this time and 20 April 2000.
As his Honour found, she was denied the opportunity of medical treatment, and had not been provided, from January 1996, with any of the medication which had been prescribed. She had not been given sufficient food or fluids, and she had been left in a state of appalling neglect in circumstances where neither her clothing, nor her bed linen were changed in any regular way. She had not been provided with a hygienic environment or with even the most basic of care. Clearly she had been allowed to suffer over a considerable period, although to a considerable extent that was due to her own refusal to receive external help, either at home, or in hospital. Her daughter gave the following evidence:
“Q. Do you know that when the ambulance officers came, your mother was covered in faeces, poo?
A. Well, the reason for that is she wouldn’t let me touch her, she used to get very upset, she used to pull, she wouldn’t let me even pull the top sheet, she used to pull [it closed]…and [say] ‘Don’t touch me’ and every time I used to go in and empty the potty, she used to say, ‘I will fill it if you empty that’. She wouldn’t let me touch her because she knew that if I saw it I would have stuck her in a nursing home or in a hospital. But she didn’t want to leave me, she didn’t want to go there.”
For such time as she was a competent adult, she was entitled to refuse such treatment, and the culpability of the Applicant largely related to the period when she was unable to make rational decisions for herself, and in particular to the period immediately preceding her admission to hospital where she had been comatose or unconscious.
His Honour found, in convicting the Applicant, that:
“Mrs George was dehydrated and malnourished to such an extent that it limited her ability to fight infection and that the Proteus bacteria was able to penetrate Mrs George’s bloodstream through the urinary tract or via the decubitus ulcers becoming of greater significance. I am satisfied that Mrs George became dehydrated, malnourished, was frail and infirm and her ability to fight infection was due to the inactions and omissions of the offender.”
These inactions and omissions of the Applicant, in the care of his mother were found by his Honour to have been “grossly and wickedly negligent”, to the standard identified in Regina v Nicholls [1874] 13 Cox CC 75, and in Regina v Stone and Dobinson [1977] QB 354. The Applicant was assessed as having been “criminally responsible for those underlying causes which, caused, contributed to and accelerated her death.” His Honour stated that “objectively the offence is extremely serious”, and stated that the Applicant had been “extremely reckless” and “indifferent” towards the care and health of his mother, to whom he owed a duty of care.
The views which expressed by Wood CJ at CL in Regina v Wilkinson NSWSC 9 April 1998, concerning the heavy responsibility which rests upon carers of young children, to provide for their well being and to secure medical care when needed, in our view, apply equally to those who care for the elderly and infirm. An appeal from that sentence was dismissed (R v Wilkinson [1999] NSWCCA 248), and it supports the proposition that offences of this kind must generally be regarded as objectively serious. However, the extent of that criminality will very much depend upon the individual case.
Subjectively the Applicant’s circumstances can be summarised as follows:
(a) he was sixty years of age at the time of sentence;
(b)he was a single man who had lived his whole life at Windsor, with his mother and sister, apart from a brief period during which he was involved in a relationship with a woman for about twelve months.
(c)he had no criminal history, was of prior good character and faced his first custodial term;
(d)he had very few outside social contacts although recently he had become involved in the local church, where he was involved in maintenance work;
(e)he had left school after completing the intermediate certificate and had not secured paid work until recently;
(f)he had been assessed by Mr West on behalf of the office of Probation and Parole as an “intelligent and articulate man, although seemingly to be socially isolated…”
His Honour found that he had been “in complete denial concerning the pain and distress that his mother must have experienced over an extended period”, that he displayed “no remorse for his actions whatsoever, either in court or to the probation and parole officer or to the psychologist Ms Nancy Wallace”. He quoted the following from the pre-sentence report:
“It would appear that he does not appreciate the impact that his actions and lack of actions had on his elderly mother, which would appear to negate his early long term commitment to the (sic) welfare.”
There was evidence concerning his mental state from Dr Olav Nielssen and as well as from Ms Wallace, which tended to explain his lack of insight and apparent inability to show remorse.
Dr Nielssen offered the following opinion:
“Mr George may have a mild variant of an autistic disorder, which is characterised by a life long pattern of abnormal social interaction and communication and a restricted repertoire of activities and interests. The aspects of the history and examination that support the diagnosis include a family history of developmental disorder, his lack of social contact as a child, the lack of any kind of long term relationship and his peculiar affect and interest in railways. However, he has at least normal intelligence with normal language skills and a specified area of detailed knowledge, which would place him in the sub category of Autism known as Asperger’s Disorder.
A diagnostic criteria of Mr George’s condition is a lack of social or emotional reciprocity, which could partly explain his apparent lack of concern for his mother’s condition. The idiosyncratic thinking that is usually observed in the presence of Mr George’s disorder could also explain his rather literal interpretation of his mother’s instructions and his apparent lack of concern when interviewed about the events.
The usual course of autistic disorder is for a gradual improvement in social skills with age, which could account for Mr George’s capacity to form a business partnership and his ability to participate in business in later life. His level of impairment is not sufficient to warrant any kind of treatment. In any case, the treatment that is most effective is intensive behavioural therapy in childhood and early adult life, as well as treatment of associated disorders such as psychosis with medication”
When giving evidence, Dr Nielssen pointed to the presence of some, although not all, of the diagnostic criteria identified in DSM4 for Asperger’s Syndrome, but accepted that he had not made a firm diagnosis of the condition, because he had only seen the Applicant once, and did not have the necessary corroborative information for at least some of the diagnostic criteria.
He accepted that the Applicant’s disorder was “certainly at the milder end of the spectrum of disability”.
This syndrome, he said, was best known for particular interests and talent, which in the present case he saw as having been manifested in the Applicant’s focus upon all things to do with railways.
He also explained that the condition, if present, would lead to difficulties in relating to other people, in having a normal level of empathy, and to recognise the reaction of others to that lack of empathy. At a cognitive level, he explained, a person with the condition could recognise that another person was in pain or suffering, but might not have the same emotional response as a person who was free of the condition.
Ms Wallace stated in her report:
“With reference to Dr Neilssen’s diagnosis of Autism or Asperger’s syndrome, I could find no convincing evidence of any symptomatology consistent with either, although there are certain indicators that make such diagnosis suspect, including [Mr George’s] obsession with trains.”
She also said that symptoms of a mood disorder which she considered more closely related to dysthymic disorder than any other mood disorder described in DSM4 were prominent in the Applicant’s clinical picture. Those problems, she suggested, were to be seen as the result of his life long poverty in relation to social contact. She also made reference to the possibility that he had been conditioned to obey his mother’s wishes from a very early age.
It was her conclusion that:
“Mr George’s own psychopathology, presumably arising from his psychological development in what sounds like a highly dysfunctional family, possibly complicated by some variant of autism have led to this tragic outcome.”
Although in the reasons for sentence his Honour did not expressly refer to the opinions of Dr Nielssen and Ms Wallace concerning the Applicant’s mental state, he found that the Applicant did not suffer from an impaired intellect, and went on to observe “nor do I regard him as having suffered from any serious psychiatric or personality disorder”. It is this finding that is at the heart of the present application.
Ground 1: The learned sentencing Judge erred in failing to give any, or any adequate, weight to the evidence of the Applicant’s psychological condition
Essentially this ground relates to a submission that his Honour failed to give proper regard to such evidence as was before the Court, concerning the possible presence, in the Applicant, of Asperger’s Syndrome, and/or concerning the psychological problems which he had, resulting from the solitary and socially dysfunctional life which he and his close family had shared. This material was relevant not only to the extent of the Applicant’s culpability but also went some distance in explaining the Applicant’s apparent lack of remorse, a matter upon which his Honour placed considerable emphasis.

It was also submitted that his Honour may also have given undue weight to the various references in the evidence to the Applicant being regarded as intelligent and articulate, since such skills are not necessarily compromised in persons suffering from the condition of Autism or the Asperger variant.
It is the case that the presence of a mental disorder, or abnormality, is of relevance, both for an assessment of the extent of an offender’s objective criminality, and for a determination as to whether or not the case is one that calls for a particular measure of deterrence. The principles are well known, and it is sufficient to continue any reference to the passages in two decisions, which are frequently cited in this context.
First, in Regina v Israil [2002] NSWCCA 255 Spigelman CJ said:
“21. The significance of mental illness of an offender in the sentencing exercised has long been accepted. The relevant authorities have been reviewed in this Court, the Victorian Court of Appeal and the Western Australian Full Court. See R v Fahda [1999] NSWCCA 267 at [40]-[48] per Simpson J; R v Harb [2001] NSWCCA 249 at [35]-[45] per Smart AJ; see also R v Lauritsen (2000) 114 A Crim R 333, esp [43]-[51] per Malcolm CJ; R v Tsiaras [1996] 1 VR 398 at 400; see also Potas, Sentencing Manual: Law Principles and Practice in New South Wales 2001 at 285-286; Fox and Freiberg, Sentencing State and Federal Law in Victoria (2nd ed), 1999 at 293-294.
22. In the present case, the Crown was prepared to concede that some mitigation was appropriate, on the basis of giving less weight to the issue of general deterrence. However, that is not the only way in which mental illness impinges on the exercise of the sentencing discretion.
23. To the extent that mental illness explains the offence – as her Honour found to be the position in the present case – then an offender’s inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law.”
Secondly, as Wood CJ at CL explained in Regina v Henry (1999) 46 NSWLR 376 (para 254), the reason for the adoption of the principle which was stated in R v Letteri NSWCCA 18 March 1993, and adopted in R v Engert (1995) 84 A Crim R 67, to the effect that less weight should be given to general deterrence in the case of an offender suffering from a mental disorder or abnormality:
“lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice.”
Where such a condition is present, it is recognised that the offender is not an appropriate medium by which to make an example to others.
Similar considerations apply in relation to personal deterrence where the disability is such that the offender may not fully appreciate or understand the nature of his or her offending, or of the message which the sentence is expected to convey.
Additional reference may be made in these respects to Regina v Scognamiglio (1991) 56 A Crim R 81 and Regina v Anderson [1981] VR 155 at 160/161.
One might have expected that his Honour would have expressly dealt with the opinions of Dr Nielssen and Ms Wallace in his reasons for sentence, and explained why it was that he made the findings mentioned. That he did not do so was a deficiency of some importance. It was such that, consistently with the view which Wood CJ at CL expressed in Regina v Nelson [2002] NSWCCA 463, leave should be granted, so that this court can make its own assessment of that material.
While we are not persuaded the evidence would support a finding that the Applicant suffered from a serious psychiatric or personality disorder, there was sufficient, in our view, to warrant a finding that his objective criminality was reduced beyond that which a bare analysis of the neglected state of the deceased would, at first blush, suggest.
In this regard it is clear that he had not lived a normal life, having been socially isolated and having been under the control of a dominant mother. He had been left with the responsibility of her care, albeit with the assistance of a sister who had her own problems.
Upon the evidence his capacity to respond to his responsibilities was clearly impaired by an unusual personality disorder arising from his history of social dysfunction, as evidenced by the utterly bizarre circumstances in which he, and the immediate family, lived.
The case is a tragic and wholly exceptional one, and we are driven to the conclusion that the Applicant’s objective criminality was overstated by his Honour. As Dr Nielssen explained, Asperger’s Syndrome is not normally associated with criminal offending, and the risk of the Applicant reoffending, or of being placed in a similar situation, is minimal. Personal deterrence is, accordingly, of little relevance.
Ground 2: The sentence is manifestly excessive in all of the circumstances and a less severe sentence is warranted and ought to have been imposed.
This ground properly reflects the circumstances in which this Court, as a court of review, can intervene on an appeal against sentence, in accordance with s 6(3) of the Criminal Appeal Act 1912.
As has been recognised, and repeatedly stated, the circumstances which can give rise to the offence of manslaughter are so various, and the range of culpability so wide, that it is very difficult to identify any pattern of sentencing: cf R v Blacklidge NSWCCA 12 December 1995 and R v Maguire NSWCCA 30 August 1995. On the other hand, while it is always necessary to have regard to the particular factual context in order to understand the human tragedy involved in any particular case, it is also not possible to overlook the circumstance that the offence involves the felonious taking of a human life and, as such, calls for a grave measure of criminal justice, that is, one commensurate to the objective and subjective circumstances of the case: R v Hill (1981) 3 A Crim R 397.
In support of the submission that the sentence was manifestly excessive, the Applicant drew attention to a number of other cases involving manslaughter by criminal negligence, some of which involved negligence by carers (for example, Rogers v Stone and Dobinson (supra), Regina v Eriksson (2001) NSWSC 781, R v Wilkinson (supra), and others, of which involved a wide variety of criminally reckless acts (for example, R v Cameron NSWCCA 27 September 1994, R v Do [2000] NSWCCA 459, R v Do [2001] NSWCCA 19 and R v Luong [2000] NSWSC 505).
We are unable to gain any meaningful assistance from a reference to these cases. It is necessary to restate that the practice, which appears to have developed in recent times, of approaching sentence appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor justified by authority: see Regina v Morgan (1993) 70 A Crim R 368; Regina v Salameh NSWCCA 9 June 1994 and Regina v Trevenna [2004] NSWCCA 43 per Barr J at 98 to 101. At the most, other cases can do no more than become part of a range for sentencing, which in the case of manslaughter is wider than for any other offence.
The difference in objective and subjective culpability, which is found in these decisions, is such that any search for a correlation between the case at hand and another decided case is to ignore the judicial discretion which is involved in the individual sentencing exercise required. As Barr J said in Trevenna, “Even if were possible to say that the culpability in two unrelated cases was the same it would not be correct to say, if the sentences were different, that for that reason alone one of them must be wrong.” Inter alia any such approach would have to assume that the other was correct, and that is an assumption which cannot logically be made.
These principles have a particular relevance for a case such as the present where the personal circumstances of those involved were wholly exceptional.
We would not interfere with his Honour’s finding as to special circumstances, but we are otherwise satisfied that, upon the particular facts of this case, the sentence was manifestly excessive.
We accordingly make the following orders:
1. Leave to appeal granted;
2.Appeal allowed, sentence below quashed, and in lieu thereof Applicant be sentenced to imprisonment for 3 years and 6 months, to date from 28 November 2002, and to expire on 27 May 2006;
3.A non-parole period of 2 years, to date from 28 November 2002, and to expire on 27 November 2004.

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LAST UPDATED: 25/08/2004