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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v George [2004] NSWCCA 247
Case
[2004] NSWCCA 247
Decision Date
CaseChat Overview and Summary
The case of R v George involves an appeal against the severity of the sentence imposed by the court. The Applicant, who resides with his elderly mother and developmentally disabled sister, was convicted of manslaughter due to a gross and wilful failure to provide proper care for his mother, leading to her death. The Applicant had pleaded not guilty and the case was tried by a judge alone. The Applicant now seeks leave to appeal against the severity of the sentence, arguing that the court did not adequately consider his psychological condition, which may have included Asperger's Syndrome or social dysfunction. The Applicant also contends that his lack of remorse was a result of his psychological condition and that his mental state should have been given more weight in determining the sentence.
The court was required to decide whether the sentence was manifestly excessive and whether the sentencing judge had adequately considered the Applicant's psychological condition. The court considered the objective facts of the case, including the unsanitary and neglected living conditions, the Applicant's failure to provide proper care for his mother, and the evidence regarding the Applicant's mental state. The court also considered the arguments presented by the Applicant regarding his psychological condition and the impact it may have had on his actions and lack of remorse.
The court found that the Applicant did not suffer from an impaired intellect or any serious psychiatric or personality disorder. The court held that the sentence was not manifestly excessive and that the sentencing judge had adequately considered the Applicant's psychological condition in determining the sentence. The court also found that the Applicant's lack of remorse was not solely attributable to his psychological condition, but also due to his failure to provide proper care for his mother. The court held that the sentence was appropriate and that the Applicant's psychological condition did not warrant a reduction in the severity of the sentence.
The court dismissed the Applicant's appeal against the severity of the sentence. The court found that the sentence was not manifestly excessive and that the sentencing judge had adequately considered the Applicant's psychological condition in determining the sentence. The court held that the Applicant's psychological condition did not warrant a reduction in the severity of the sentence and that the sentence was appropriate in the circumstances of the case.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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.”