R v HA

Case [2008] NSWSC 1368 18 December 2008

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CITATION: R v HA [2008] NSWSC 1368

HEARING DATE(S): 14 November 2008

JUDGMENT DATE :
18 December 2008

JURISDICTION: Common Law

JUDGMENT OF: Rothman J

DECISION:
1. I sentence you to a term of imprisonment of 2 years, commencing 18 December 2008 and concluding 17 January 2010.
2. I order that the execution of the aforesaid sentence be wholly suspended for 2 years and HA be released from custody on condition that she enter into a good behaviour bond for 2 years.
3. Such bond shall include the following additional conditions:
(i) That HA undergo such counselling as advised by Probation and Parole Service; and
(ii) That HA cooperate with officers of the Department of Community Service that may act to ensure that each child of HA is subject to regular medical attention.

CATCHWORDS: CRIMINAL LAW – sentence – manslaughter by criminal negligence – mother failed to take child to medical practitioner – plea of guilty – lower range culpability offence – exceptional case

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Sentence

CASES CITED: Hill v R (1981) 3 A Crim R 397
R v Blacklidge (Court of Criminal Appeal, Gleeson CJ, 12 December 1995, unreported)
R v Edwards (1996) 90 A Crim R 510
R v Elliott (Court of Criminal Appeal, Newman J, 14 February 1991, unreported)
R v Green [1999] NSWCCA 97
R v Hoerler [2004] NSWCCA 184
R v Isaacs (1997) 41 NSWLR 374
R v McDonald (Court of Criminal Appeal, 12 December 1995, unreported)
R v Schelberger (Court of Criminal Appeal, Yeldham J, 2 July 1988, unreported)
R v Warren Alan Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
R v Woodland [2001] NSWSC 416
Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465

PARTIES: Regina (Crown)
HA (Accused)

FILE NUMBER(S): SC 2007/4312

COUNSEL: T Thorpe (Crown)
J Manuell (Accused)

SOLICITORS: Office of the Director of Public Prosecutions (Crown)
Legal Aid Commission of New South Wales (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

18 DECEMBER 2008

2007/4312 R v HA
REMARKS ON SENTENCE

1 HIS HONOUR: HA is charged with the manslaughter of her son, EA. He died of pneumonia and pyelonephritis.

2 Pneumonia, as most know, is an acute inflammation and infection of the lungs. Pyelonephritis, relevantly, is an acute infection of the kidneys, usually the result of an infection that has travelled up from the urinary tract.

3 Proper medical care, at the appropriate time, would have prevented EA’s death from these causes. HA (and her late husband) were responsible for their son and were under a duty of care to obtain medical treatment. In the circumstances of this case, while there was no intention to cause their son’s death, or even to cause him harm, the failure to obtain medical treatment involved, to any reasonable person, such a high risk that death would follow, that the failure merits criminal punishment.

Medical History of Victim

4 The victim,…

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.

Continue reading R v HA

Details

AGLC: R v HA [2008] NSWSC 1368
Case: [2008] NSWSC 1368
Decision Date: 18 December 2008

CaseChat Overview and Summary

In the Supreme Court of South Australia, the case of R v HA involved a mother who pleaded guilty to manslaughter by criminal negligence after she failed to take her child to a medical practitioner, resulting in the child's death. The court was tasked with determining an appropriate sentence for the accused, considering the plea of guilty and the exceptional circumstances of the case. The legal issues that arose centred on the degree of culpability exhibited by the accused and whether this was an exceptional case warranting a departure from standard sentencing principles.

The court assessed the level of culpability in light of the accused's plea of guilty, which typically attracts a lesser sentence. The court acknowledged the mitigating factor of the accused's early guilty plea, but also considered the gravity of the offence, which involved a breach of a fundamental duty towards a child. In weighing these factors, the court had to determine whether the case was exceptional enough to warrant a sentence below the lower range typically associated with such offences. The court ultimately concluded that while the culpability was at the lower end of the spectrum, the nature of the offence and its impact on the child warranted a sentence that reflected the seriousness of the breach of duty.

The court decided that the case was indeed exceptional, given the unique circumstances and the accused's early guilty plea. The sentence imposed recognised both the reduced culpability and the exceptional nature of the case. The court imposed a sentence that was below the lower range but still adequately reflected the gravity of the offence and its impact on the child. This decision underscores the importance of considering all mitigating and aggravating factors in sentencing, particularly in cases involving criminal negligence that result in death.

Orders