R v Johnston - [2007] SASC 300

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v JOHNSTON
[2007] SASC 300
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice White and The Honourable Justice Kelly)
17 August 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
Appeal against sentence - appellant pleaded guilty to the manslaughter of her infant son by criminal negligence - sentencing judge sentenced the appellant to imprisonment for 10 years and six months with a non-parole period of six years - whether sentence was manifestly excessive - whether judge sentenced the appellant on incorrect basis - whether too much importance placed on need for general deterrence - whether circumstances personal to the appellant were given adequate weight.
Held (by majority): the starting point used to determine sentence was too high - sentence was manifestly excessive - appeal allowed - sentence reduced to imprisonment for seven years and six months with a non-parole period of four years and six months.
R v Weinman (1987) 49 SASR 248; Nydam v R [1977] VR 430; R v Crabbe (1985) 156 CLR 464; R v Foster (No 2) [2001] SASC 154; R v Lavender (2005) 222 CLR 67; R v lavender (2004) 41 MVR 492, discussed.
Wilson v The Queen (1992) 174 CLR 313; R v Tomac (1996) 67 SASR 376; R v Adomako [1995] 1 AC; Yardley v Betts (1979) 22 SASR 108; R v McLachlan [2004] SASC 277; R v Goulding [2007] SASC 60, considered.

R v JOHNSTON
[2007] SASC 300
Court of Criminal Appeal: Nyland, White and Kelly JJ

NYLAND J: I have read the draft reasons of White J. I agree with the substance of those reasons but wish to add some further remarks. The circumstances of the appellant’s offending are described by White J, from which it is clear that this was a very bad case of neglect of a child. It is therefore understandable that the sentencing judge took a serious view of the appellant’s conduct. In my opinion, however, the judge, in categorising this case as the most serious of its type, gave insufficient weight to the evidence as to the appellant’s background and poor parenting skills, which provide some explanation for the events which resulted in the death of this child.
Dr Raeside described the appellant’s long-standing difficulties from suffering physical and sexual abuse in her childhood. She ran away from home at an early age and lived on the streets whilst abusing heroin and amphetamines. She had been involved in abusive relationships which included that with the father of six of her children. She had a limited education and in one of his reports, Dr Raeside expressed concerns about her intellectual ability, although his primary diagnosis was of an underlying borderline personality disorder. Mr Mead submitted that all of these matters had deprived the appellant of a proper parenting model, which had led to an inability to form healthy supportive relationships with others, including the welfare authorities, who were available to help her.
I agree with Mr Mead’s submissions that the circumstances in which the appellant undertook the journey from Alice Springs to Melbourne and back, without any other adult assistance, are illustrative of a dysfunctional individual who was unable to analyse the priority of the situation in a reasonable and appropriate way, and gives some insight into the appellant’s poor coping skills. She left Alice Springs just after two of her children had been taken into care to collect her son, S, from Melbourne. He had indicated that he wished to return home to live with her, but she also substantially depended upon him, notwithstanding that he was only 13. S’s father said that S had a strong sense of responsibility for the appellant and the other children and part of his desire to return home was to assist his mother with the care of those children.
White J has referred to the summary of cases provided to the court by Mr Mead which sets out the details of 40 sentences for manslaughter imposed in this State since May 2000. Normally summaries of this kind are of limited assistance, and the court has commented on innumerable occasions that there is no tariff for the crime of manslaughter because those crimes are committed in such a wide variety of circumstances. In R v Weinman, [1] Matheson J referred to the sentencing remarks of Wells AJ in R v Shaw (unreported, 27 March 1987) in which his Honour observed that at the lowest range of criminality, manslaughter might be little more than a practical joke that went wrong, but at its highest stops just short of murder.
[1] (1987) 49 SASR 248 at 250
In this case, however, I believe some assistance can be obtained from the summary. In particular, it is useful to examine those cases in the summary which relate to sentences imposed on defendants as the result of causing the death of a child.
·Foster Sentence imposed by Gray J on 27 April 2001.
The defendant was tried by judge alone. He was found guilty of the manslaughter of a child who had been left in his care for a short time by his mother. The judge imposed sentence on the basis that the defendant had inflicted a blow that caused death and that he had intended to inflict the blow. He was aware that he was inflicting the blow to a young child with force, that he was aware that what he was doing was wrong and was aware there was an appreciable risk of serious injury. The judge, nevertheless, gave him benefit of the doubt when finding he did not have the requisite state of mind for murder. The judge referred to the fact that, having struck the child, the defendant must have been aware of the child’s distress but he failed immediately to summon medical attention. There was evidence that the child’s death was the culmination of a series of incidents involving violence and although the judge did not sentence with respect to any uncharged acts, he indicated that it was not possible to treat the conduct on the day in question as an isolated incident. The defendant was aged 40 years. He had a long history of drug abuse and had been diagnosed as suffering from adjustment disorder and depressed mood. He had a long criminal history which included prior convictions for assault. The judge took into account that the defendant had spent two years and 10 months in custody before being released on home detention bail for 18 months. Having made allowances for those matters, the judge sentenced the defendant to be imprisoned for 13 years and six months and fixed a non-parole period of 10 years.
·Macaskill Sentence imposed by Perry J on 29 August 2001.
Following trial, the defendant was found guilty following trial of the manslaughter of her three and a half month old daughter. On appeal, the conviction was set aside and, at the re-trial, the defendant was acquitted. Nevertheless, the sentence remains relevant for present purposes.
The cause of death was established as the swelling of the brain which was likely to have been caused by severe shaking, possibly associated with some impact to the head. The defendant was 23 years of age and had suffered a childhood marked by violence and abuse. The judge imposed a sentence of imprisonment of six years with a non-parole period of three years and six months.
·O’Loughlin Sentence imposed by Nyland J on 22 July 2002.
The defendant pleaded guilty to the manslaughter of a child who was in her foster care. At the time of the child’s death he was aged not quite two and a half. The defendant pleaded guilty on the basis that she was responsible for causing the death of the child by a combination of injuries he had sustained from persistent violence on the days leading up to his death and the fact that she did not obtain medical treatment in time to save his life. It was not suggested, however, that there was any single injury which was the result of more than mild to moderate force.
The defendant was an aboriginal woman who suffered from a major depressive disorder. She was also suffering from a chronic post-traumatic stress disorder as a result of having been the victim of long-standing physical abuse. She had no relevant prior record. But for her plea of guilty she would have received a sentence of seven years but that was reduced to five years and six months with a non-parole period of two years.
·Herrera-Gaiten Sentence imposed by Perry J on 6 September 2005.
The defendant was the de facto partner of the mother of the child. The child was only five and a half weeks old at the date of his death. The immediate cause of the child’s death was a skull fracture and associated brain injury. The judge referred to the fact that during the child’s short life he had been subjected to physical abuse. After his death the child was found to have suffered multiple fractures to various parts of his body including a fracture to the back of the skull. The judge, having heard evidence about those injuries was not able to be satisfied beyond reasonable doubt that the defendant had caused the injuries, other than the skull fracture and some injuries to the child’s legs which had occurred when the defendant assaulted the child on the day in question. The defendant was 24 years of age. He was born in Nicaragua but had migrated to Australia at the age of 16 years. The defendant suffered from a dysfunctional home life marked by violent sexual abuse and neglect. He had two prior convictions for sexual interference with young girls and a conviction for assault. The judge indicated that but for the plea of guilty he would have imposed a sentence of 10 years and six months imprisonment, but that was reduced to eight years with a non-parole period of five years and nine month.
·StoneSentence imposed Judge Boylan on 1 March 2007
The defendant pleaded guilty to the manslaughter of his son who was eight weeks old. The child died as a result of fractures to his skull. The judge sentenced the defendant on the basis that the child had suffered those fractures when the defendant, frustrated by his crying, threw the child into his cot and his head hit a firm, but not hard, surface. When the defendant threw him into the cot he realised that he was subjecting the child to some harm but not serious harm. The judge indicated that but for the defendant’s plea of guilty he would have sentenced him to imprisonment for a period of six years. That was reduced to four years and six months with a non-parole period of two years and six months.
Subsequent to judgment being reserved in this matter, a further sentence was handed down with respect to the crime of manslaughter arising out of the death of a child, namely, Bi Qing Lin, a sentence imposed by Sulan J on 8 June 2007.
The defendant pleaded guilty to the manslaughter of her son aged 3 years. The child died from drowning, having been left alone in a bath tub. At autopsy 97 separate injuries of different ages were observed on the child’s body. The judge concluded that many of the injuries were the result of the defendant’s past neglect of the child and the manner in which she treated him. He sentenced on the basis that there was a background of ongoing violence and neglect of the child prior to his death for which the defendant had been counselled in the past. The judge found that the child had died from drowning in the bath due to a failure on the part of the defendant properly to care for him. The defendant was about 38 years old with limited English skills and was prone to depression. The judge indicated that but for her plea of guilty he would have imposed a sentence of seven years imprisonment. That was reduced to five years with a non-parole period of 18 months.
Apart from the case of Foster, which in my opinion can be distinguished on its facts as being a deliberate and non isolated act of violence by a male offender with a prior criminal history, the summary indicates that the sentence imposed on the appellant for causing her child’s death by criminal neglect was much higher than in many other cases of manslaughter arising out of intentional acts, even those which involved the death of a child.
Taking all of these matters into account, I agree with White J, that the starting point of the judge’s sentence was so high that it justifies the intervention of this court. I would, therefore, allow the appeal and set aside the sentence imposed by the judge. For the reasons expressed by White J, after allowing a discount for a late plea, there should be substituted a sentence of seven years and six months, with a non-parole period of four years, six months to commence from 26 July 2006, being the date upon which the appellant was taken into custody.
WHITE J: The appellant pleaded guilty to the manslaughter of her son K who died on 1 June 2005. K was then seven weeks old, having been born on 13 April 2005.
On 1 June 2005, the appellant was travelling by vehicle to Alice Springs. She had with her five of her children, including K. The children were SMH aged 13 years, BJ aged four years, TJ aged two years and 10 months, JJ aged 18 months and K aged seven weeks.
The appellant stopped at a roadhouse at Port Wakefield at approximately 8.40 am. She found that K, then in a baby capsule in the back seat of the vehicle, was dead. Autopsy indicated that the cause of death was the combined effects of malnutrition and dehydration. K’s weight at death of 2390 grams was less than his birth weight of 3400 grams. The pathologist described his appearance as “virtually starved”.
The prosecution case was one of involuntary manslaughter, ie, that K’s death had been caused by the gross criminal neglect of him by the appellant. It was alleged that the appellant had failed to provide K with the nourishment necessary for an infant of his age, and had failed to obtain for him necessary medical attention. The neglect had commenced at K’s birth and had continued to 1 June 2005.
The sentencing judge said that had it not been for the appellant’s guilty plea, she would have imposed a sentence of imprisonment of 12 years. After allowing for that plea, the judge imposed a sentence of imprisonment of 10 years and six months, and fixed a non-parole period of six years.
This appeal is brought against that sentence. The sole ground of appeal is that the sentence was manifestly excessive, although Mr Mead, who appeared for the appellant, sought to demonstrate that in a variety of ways.
The Circumstances of the Offending
The appellant gave birth to K in Alice Springs. Although originally from Victoria, she had lived more or less continuously in Alice Springs since about 1995. K was her seventh child. With the exception of the oldest (SMH), all were living with her in April 2005.
K was a healthy infant at birth, with a normal weight. The appellant discharged herself from the Alice Springs Hospital with K within a few hours of the birth. At the time of discharge, the appellant was given advice about appropriate care for K. Although advised (and indeed urged) to attend the Paediatric Department at the Alice Springs Hospital for post-natal review and monitoring of K, the appellant did not do so at any time before his death.
A domiciliary midwife did visit the appellant four days after the birth. She weighed K and found that he had gained a little weight. The midwife advised the appellant to take K to the Paediatric Liaison Officer at the Alice Springs Hospital.
The appellant and her family had previously come to the attention of the Department of Family and Children Services (“FACS”) in Alice Springs. In the course of speaking to the appellant about those matters, a FACS case worker told the appellant on 22 April 2005 that K needed to be weighed and monitored paediatrically. The appellant took no steps to allow that to happen.
In early May 2005, the appellant, JJ, K and a friend flew to Adelaide. Her purpose was apparently to purchase a vehicle. However, they did not do so and, after an overnight stay, returned to Alice Springs by train. The friend observed that despite her urgings, the appellant rarely fed K, and was generally inattentive to the needs of the two children. K was left with the friend for the whole of one night on the train and the friend resorted to feeding him with JJ’s bottle. The friend thought that K at this time was showing visible signs of neglect, including a bluish skin colour and a “thin” appearance. This friend had further contact with the appellant after the return to Alice Springs in which she urged her to take K to FACS, and to seek medical attention for him.
The appellant paid a deposit on a vehicle in Alice Springs on 14 May 2005 and completed the purchase on 20 May 2005. By 16 May 2005, another friend was sufficiently concerned about K’s condition (describing him as “just skin and bones”) to report the matter to FACS. Case workers from FACS located the appellant on 18 May 2005. They told her that K needed medical attention. The appellant aggressively resisted taking K to the FACS office. Although agreeing later to do so, she did not keep the arrangement. The appellant misled the FACS case workers in that respect. In several telephone conversations later that same day, a FACS case worker repeated to the appellant her concerns about K and the need for K to have a medical check. The appellant was reminded of circumstances concerning her daughter TJ, to which I will refer later. The case worker offered transport to the appellant, but the appellant would not disclose her whereabouts. On the evening of the same day, FACS case workers took two of the appellant’s children, aged 6 years and 5 years respectively, into their care, and later obtained an “In Need of Care” order in relation to those children. It seems that the appellant was aware of the prospect that K, or her other children, may also have been taken into care.
Although aware of FACS concerns about K, a day or so later the appellant left Alice Springs in her vehicle to drive to Melbourne. She had four children with her, the oldest of whom was four years, and the youngest, K, aged just on five weeks. The appellant was not accompanied by any adult. The purpose of the trip was to pick up her 13 year old son SMH, then staying with his father in Melbourne. The appellant arrived in Melbourne on the morning of Friday 20 May 2005. She and her family stayed with her sister and brother in law. The sister reported that K was fed regularly during the course of the stay.
The appellant left Melbourne late on Sunday 29 May 2005 to drive back to Alice Springs. Again, she was unaccompanied by any adult and had SMH, aged 13, with her as well as the other children.
Her movements between leaving Melbourne and arriving at Port Wakefield are not altogether clear. It seems that the family made a wrong turn and travelled through Shepparton in Victoria before returning to the Great Western Highway in Victoria and then travelling on the Dukes Highway in South Australia and then through Adelaide, and onto the Port Wakefield Road. It also seems that during the night of Sunday 29 May, Monday 30 May and Tuesday 31 May, the family slept in the vehicle in roadside stops or parking bays. For sustenance they relied upon food and drink purchased at roadhouses. K was fed at some stages but not nearly enough for his needs.
When the family arrived at Port Wakefield, the appellant had no money at all. Her initial purpose in stopping was to seek directions to the nearest Community Welfare Office and the nearest pawn shop.

As noted above, K was in an emaciated state. The judge had photographs of K, showing his physical condition to be extremely thin, the skin wrinkled around his limbs, and with obvious muscle wastage. It seems that he had last been fed several hours before his death, and that that death had occurred at least a couple of hours before the family stopped at Port Wakefield.
The prosecution case was that the appellant’s conduct was not attributable to inexperience, or lack of knowledge, or lack of access to appropriate advice. The judge accepted that, in the circumstances outlined above, the appellant had several times received appropriate advice and information in relation to K. Not only had she had that advice and information, she had refused assistance in obtaining medical attention and treatment for K, and had aggressively rejected efforts by FACS workers to obtain medical attention for him.
Evidence which the judge accepted about the child TJ also indicated that the appellant was aware of an infant’s need for appropriate nourishment, and the risks to the health of the infant if that was not provided. About two and a half years before K’s birth, the child TJ had come to the attention of FACS in Alice Springs. She was then aged about three months. TJ was found to be sickly and malnourished. She was removed at that time from the appellant’s care. With appropriate nourishment TJ made a good recovery. The appellant was counselled explicitly about the causes of TJ’s condition.
The circumstances in which the appellant lived in Alice Springs both before and after K’s birth appear to have been somewhat chaotic. This included, it seems, the appellant not having a place at which she resided continuously.
The Appellant’s Personal Circumstances
At the time of the offending, the appellant was 34 years of age. She herself had had a dysfunctional upbringing. The appellant’s father was an alcoholic who had left the family home shortly after the death of her mother, which occurred when the appellant was 14 years old. Her older sister then assumed much of the responsibility for the care of the children of the family, a responsibility which the appellant assumed when the older sister left home. The judge accepted that the appellant had been sexually abused in her childhood. The appellant was educated to year 7 level. It seems that she may generally be of low intelligence.
At age 17, the appellant commenced a relationship with the father of SMH, but that relationship ended shortly after his birth. The appellant then commenced a relationship with the father of her other six children. This relationship was dysfunctional and was marked by considerable violence. The appellant has a history of use of illicit drugs, including heroin and amphetamines. It was not suggested, however, that there was any such use during the appellant’s pregnancy with K, nor after his birth.
The appellant does not suffer from any psychiatric illness, but the judge accepted psychiatric opinion that she has a severe borderline personality disorder. The effect of that disorder was described by the judge in the following way:
This disorder is a maladaptive pattern of behaving and feeling and causes disturbances in your judgment and self-image and identity. You have sometimes experienced feelings of chronic depression alternating with rage and had difficulty in your relationships with other people.
The Approach of the Sentencing Judge
The judge accepted that a number of factors may have contributed to the appellant’s conduct in relation to K. These included her limited intellectual capacity, the severe borderline personality disorder, the lack of proper parenting in her own childhood, the experience of sexual abuse, the previous drug use, the demands of caring for her children, the absence of a stable and continuous place of residence, and her relative isolation and lack of family support in Alice Springs.
The judge accepted that these factors in combination may have had a “blunting effect” on the appellant’s awareness of the needs of her children and of her duty to care for and feed them appropriately. The judge also accepted that the severe borderline personality disorder may, to some extent, have prevented the appellant from recognising and trusting the help which had been offered to her.
After taking account of those factors, the judge found, however, that the appellant did appreciate the gravity of K’s condition and that her rejections of support had been deliberate. In particular, the judge considered that the appellant’s failure to obtain medical treatment for K to have been quite deliberate.
The appellant had told the examining psychiatrist that she believed that she “had not done anything wrong”. The judge was troubled by this apparent lack of remorse and insight, but accepted that the appellant’s plea of guilty (although belated) and the establishment of a positive and supportive relationship with a Christian pastor and his family were positive indicators that rehabilitation in the future was possible.
The judge said that she placed particular importance on the need for children, especially vulnerable babies, to be protected. This meant that deterrence, in particular personal deterrence, was an important factor in the sentencing of the appellant. The judge described the appellant’s offence as amongst the most serious of its type.
Against the above background, I turn to the submissions on appeal.
The Appellant’s State of Mind
Mr Mead submitted that instead of sentencing the appellant for manslaughter by criminal negligence, the judge had proceeded on the basis that she had a state of mind amounting to reckless indifference to K’s death. The existence of such a state of mind was not a part of the offence of manslaughter by criminal negligence. Had it been proved that the appellant had been recklessly indifferent to K’s death, she would have been guilty of murder, not manslaughter.[2]
[2] Rv Lavender [2005] HCA 37 at [27], [71]; (2005) 222 CLR 67 at 78 per Gleeson CJ, McHugh, Gummow and Hayne JJ and at 90 per Kirby J.
In support of this submission, Mr Mead referred to a number of passages in the sentencing remarks. These included: the judge’s finding that the appellant had been made aware explicitly through her experience with TJ of the effects of malnutrition on a child; the finding that the appellant had appreciated the gravity of K’s condition and her own responsibility for it; the finding that the appellant had deliberately rejected offers of support; and the finding that the failure of the appellant to obtain medical treatment for K had been deliberate. The submission was that these findings amounted to a conclusion by the judge that the appellant had appreciated the significance of her conduct, but had chosen to continue it regardless of the risks to K’s health.
In some respects, the appellant’s submission received support from a submission of the Director. That submission was to the effect that the judge had sentenced the appellant on the basis that her conduct was cold-hearted, callous and indifferent. This characterisation of the appellant’s conduct seems very close to acceptance of the submission that the judge had sentenced the appellant on the basis of reckless indifference.
Proof of a subjective mental state, whether it be an intention, or a reckless mind, forms no part of the offence of manslaughter by criminal negligence. The test is objective. The offence comprises conduct by an accused person which not only breaches a duty of care owed by that person but does so in a very significant way and involves such a high risk of death or grievous bodily harm that the conduct warrants criminal punishment. In Nydam v R,[3] the Full Court of the Victorian Supreme Court said:
In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.[4]
[3] [1977] VR 430.
[4] Ibid at 445.
This passage was referred to with approval in the majority judgment in Wilson v The Queen.[5] See also R v Lavender,[6] and in this State R v Tomac.[7] In England, the decision in R v Adomako[8] also confirmed that the offence involves a failure by the accused to meet an objective standard.
[5] (1992) 174 CLR 313 at 333 per Mason CJ, Toohey, Gaudron and McHugh JJ.
[6] [2005] HCA 37 at [17], [60]; (2005) 222 CLR 67 at 75, 87 per Gleeson CJ, McHugh, Gummow and Hayne JJ.
[7] (1996) 67 SASR 376.
[8] [1995] 1 AC 171.
This does not mean that there is no mental element involved in manslaughter by criminal negligence. As was explained by the Full Court in Nydam, the necessary intent is no more than an intent to do the acts which constitute the crime, ie, an intention to do the act which causes the death of the victim. This is apparent in the following passage:
No doubt manslaughter does involve mens rea … [T]he necessary intent is no more than an intent to do the acts which constitute the crime. … The requisite mens rea is, rather, an intent to do the act which, in fact, caused the death of the victim, but to do that act in circumstances where the doing of it involves a great falling short of the standard of care required of a reasonable man in the circumstances and a high degree of risk or likelihood of the occurrence of death or serious bodily harm if that standard of care was not observed, that is to say, such a falling short and such a risk as to warrant punishment under the criminal law. This formulation proceeds on the footing that the accused man did not in fact advert (although a reasonable man would have adverted) to the probability that death or grievous bodily harm would ensue.[9]
[9] [1977] VR 430 at 444.
Accordingly, at a trial, it is appropriate for the judge to direct the jury that it must be satisfied that the accused did intend to do the acts which constituted the offence, but not that the accused intended to kill the victim or to inflict grievous bodily harm upon the victim, or was recklessly indifferent to those outcomes. So, for example, in R v Lavender no complaint was made about the direction of the trial judge that the jury had to be satisfied that the relevant actions of the accused in that case were deliberate in the sense that he was in control of what he was doing.[10]
[10] R v Lavender [2005] HCA 37 at [13]; (2005) 222 CLR 67 at 72 per Gleeson CJ, McHugh, Gummow and Hayne JJ. See also R v Lavender [2004] NSWCCA 120 at [105]; (2004) 41 MVR 492 at 516 per Giles JA.
Understood in this way, the passages relied upon by Mr Mead indicate, in my opinion, a recording by the judge of the deliberateness of the appellant’s conduct, or failures to act, as the case may be. The judge’s remarks are, in my opinion, to be understood as a finding that the appellant’s conduct was deliberate (ie, conscious and voluntary) despite the “blunting” of her general awareness which the judge had accepted had been brought about by the factors in her background, circumstances and psychological makeup.
Further, the findings of the judge to which Mr Mead referred were relevant to an assessment of the moral culpability of the appellant’s conduct. The appellant may well have been less morally culpable if she had had no awareness of K’s condition, or its causes, or had not received any information or offers of assistance or advice, or if she was inexperienced in providing appropriate care for an infant. The awareness which she actually had of the needs of K made the moral culpability of her refusal of the offers of assistance and advice so much greater.
I note also that the judge made it plain several times that she was sentencing the appellant on the basis of criminal neglect. The judge said expressly:
In sentencing you, I bear in mind that this is a case of criminal negligence and that you did not intend to kill or intend to cause grievous bodily harm to K. However, his death was caused by very serious criminal neglect, and this must be punished by a very serious penalty, namely imprisonment.
Accordingly, I do not accept this basis for the challenge to the exercise of the sentencing discretion. Further, I do not accept the submission of the Director that the judge sentenced the appellant on the basis that her conduct was cold-hearted, callous and indifferent. That submission is not consistent with the judge’s acceptance that the appellant’s awareness had been “blunted” and that her personality disorder may, to some extent, have prevented her recognising and trusting the help offered to her.
Comparative Severity
The next strands of Mr Mead’s submissions can conveniently be considered together.
It was submitted that the judge was wrong in characterising the appellant’s offending as “amongst the most serious of its type”, and that the sentence was unduly severe especially when compared with other sentences imposed for manslaughter.
Mr Mead supplied the court with details of 40 sentences for manslaughter imposed in this State since May 2000. He invited the court to infer, by reference to this material, that the present sentence was unduly severe. Although in some appeals analyses of this kind may be helpful,[11] they are of little utility in cases of the present kind. This is a consequence of the range of culpability involved in offences of manslaughter. In R v Lavender,[12] the majority said:
For more than a hundred years, judges in all Australian jurisdictions, and in England, have observed that, of all serious offences, manslaughter attracts the widest range of possible sentences. The culpability of a person convicted of manslaughter may fall just short of that of a person guilty of murder or … it may be such that a nominal penalty would suffice.[13]
[11] Cf Yardley v Betts (1979) 22 SASR 108 at 110-111 per King CJ; R v McLachlan [2004] SASC 277 at [30]-[31] per Doyle CJ.
[12] [2005] HCA 37; (2005) 222 CLR 67.
[13] Ibid at [22]; 77. See also in this State R v Weinman (1987) 49 SASR 248 per King CJ at 248, per Matheson J at 250; R v Goulding [2007] SASC 60 at [18] per Gray J.
Of the 40 cases in the analysis, Mr Mead pointed to only four as involving (or possibly involving) manslaughter by criminal negligence. None of these involved the death of an infant from malnourishment. In a general way, comparison with the sentences surveyed does indicate that the starting point of the judge was relatively high, but I do not think one can infer much beyond that.
It is likely, in my opinion, that when the judge referred to this case as being amongst the most serious of its type, she was referring to cases of manslaughter by criminal negligence and in particular to those involving maltreatment of a child. I would not regard such a characterisation as being inappropriate. The neglect in this case was not momentary. It had continued for several weeks. Further, the consequences of the neglect were being pointed out to the appellant as the weeks passed. She was presented with opportunities to do something about K’s condition. Instead of taking advantage of those opportunities, she embarked upon a major journey, effectively removing herself and K from sources of support. The deterioration in K’s condition must have been obvious to the appellant throughout the seven weeks of his life.
Further, the appellant’s conduct could not be attributed to some temporary aberration, or to the additional stress of a new child in an already large single parent family. There was considerable evidence before the judge that the appellant’s parenting skills generally were inadequate, and that she had failed frequently to provide adequate food, clothing, care, protection and support for her children.
Infants are a particularly vulnerable group in our society. They are entirely dependent upon others. The failure of an adult to provide appropriate care has to be viewed seriously.
All these matters suggest that the appellant’s offending had to be regarded seriously.
However, even when regard is had to these matters, I regard the sentence imposed as being severe. This court does not interfere to reduce a sentence simply because it regards a sentence as high or severe. It must be satisfied that the sentence is so high as to be outside a reasonable range of sentences for the offence. I am satisfied that the present sentence should be so regarded. A number of factors in combination have led me to that conclusion.
The first is the fact that the appellant’s offending consisted of a failure to meet an objective standard. The sentence is not to reflect a state of mind consisting of a criminal intention or recklessness.
Secondly, there is the fact that K’s death occurred in the course of an arduous journey. The circumstances of the journey would have been gruelling even had K been healthy at its commencement, and even had the appellant had the assistance of another adult. K died during the third night of the trip. The family had not had overnight accommodation at any stage. The appellant’s attention to K was no doubt distracted by her concentration on the driving, and on the other children, and presumably by her own tiredness. The family was ill-equipped for this major journey, having run out of money by the time they reached Port Wakefield. To some extent the very fact of embarking on such a journey may itself indicate the appellant’s neglect, but the purpose of the trip was to re-unite with her 13 year old son. It is evident that the appellant relied very much on him and that he was able to provide considerable support to her generally. The undertaking of the journey is in that way understandable.
Thirdly, there is the effect of the appellant’s borderline personality disorder. As noted by the judge, the effect of this disorder was to “blunt” the appellant’s awareness of the needs of her children and of her duty to care for and feed them appropriately.
Fourthly, in the particular circumstances of this case, while personal deterrence was an important factor in the sentencing, I do not think that the same can be said of general deterrence. Most parents of young children do not require the threat of a criminal law sanction in order to provide sufficient nourishment for their children.
This offending had to be viewed very seriously, and the sentence must reflect that. However, having regard to the matters which I have identified, I am satisfied that the judge’s starting point was too high. In my opinion, an appropriate starting point, reflecting the undoubted seriousness of the appellant’s conduct, would have been 9 years. The disparity between that starting point and the judge’s starting point is so large as to warrant the intervention of this court.
The appellant should be re-sentenced. The starting point of 9 years should be reduced to seven years and six months on account of the appellant’s plea of guilty.
The judge thought it appropriate to exercise leniency in the fixing of the non-parole period, first, because the appellant is, while in custody, deprived of regular contact with her other children, and secondly, so as to allow a longer period of supervision upon release from custody. I agree that such an approach is appropriate in this case. Accordingly, I would fix a non-parole period of four years and six months.
Conclusion
For the reasons given above, I would allow the appeal. I would set aside the sentence imposed by the judge. I would substitute a sentence of imprisonment of seven years and six months and would fix a non-parole period of four years and six months. Both the sentence and the non-parole period should be taken to have commenced on 26 July 2006, being the date upon which the appellant was taken into custody.
KELLY J:
Introduction

On 26 July 2006 the appellant, Vicki Marie Johnston, pleaded guilty to the manslaughter of her infant son, K, who died on 1 June 2005.
On 6 November 2006 a judge of this Court sentenced her to imprisonment for 10 years and six months. The sentencing Judge fixed a non-parole period of six years. The appellant appeals the sentence on the ground that it is manifestly excessive.
At the hearing of this appeal, counsel for the appellant developed three main submissions. Firstly, it was submitted that the sentencing Judge wrongly assessed the facts of this case by categorising the appellant’s offending as amongst the most serious of its type. Secondly, it was submitted that in finding a deliberate failure to obtain medical treatment for K on the part of the appellant and in finding she was aware of the potential serious consequences of the failure to feed the child or obtain medical treatment for him, the sentencing Judge effectively sentenced the appellant on the basis of a reckless murder and not on the basis of manslaughter by criminal negligence. Thirdly, it was argued that a comparison of the sentence imposed in this case with sentences for manslaughter imposed in this Court since 2000 indicates in itself that the sentence was excessive. Closely allied to this submission was the argument that even if no precise error could be identified, the comparison with the schedule of other cases indicates that the starting point of 12 years adopted by the sentencing Judge was manifestly excessive.
Background
The circumstances of the appellant’s neglect that ultimately caused the child’s death were particularly serious. K was born at the Alice Springs Hospital on 13 April 2005. He was seven weeks old on 1 June 2005, the date of his death. The sentencing Judge found that the appellant’s neglect leading to K’s death started from the time of his birth. An autopsy revealed that the cause of the child’s death was the combined effect of malnutrition and dehydration, with possible hypothermia. The baby died in a motor vehicle driven by the appellant from Melbourne to Alice Springs. Such was the baby’s condition that he weighed significantly less than his birth weight seven weeks earlier. The sentencing Judge found that it would have been blatantly obvious to any reasonable observer that the baby required urgent medical attention.
The sentencing Judge referred to the appellant’s neglect of another of her children, TJ, about two and a half years prior to K’s birth. TJ was found to be suffering from severe malnutrition shortly after her birth. As a result of this earlier episode, the sentencing Judge found that the appellant had been made fully aware of the seriousness of the effects of malnutrition upon the child. Her Honour found that this was not a case of a new mother struggling with a newborn baby and armed with insufficient knowledge about caring for the baby. Indeed, the evidence pointed to multiple interventions by medical and welfare authorities in an attempt to ensure that the child, K, received adequate food and medical attention.
There was evidence that the appellant in May 2005 not only failed to cooperate with the authorities who tried to persuade her to have K admitted to hospital, but refused all other efforts to assist. She attempted to evade and avoid the authorities, eventually leaving Alice Springs on 19 May 2005.
The material before the sentencing Judge revealed that the appellant had been examined previously by two psychiatrists. Neither found any evidence of psychiatric or psychological illness which might explain the appellant’s criminal conduct in relation to K.
A psychiatrist, Dr Craig Raeside, who examined the appellant on a number of occasions in the course of the proceedings, expressed the opinion that the appellant has a severe borderline personality disorder.
Analysis
I turn now to deal with the appellant’s arguments on this appeal.
In light of the facts of this case, the sentencing Judge’s description of the offending as amongst the most serious of its type is readily understandable. The appellant at the relevant time was a 34-year-old woman. K was the seventh and last of her children. This was not, as sometimes happens, a case of a woman harming or killing a child out of frustration or anger or sheer stress followed by immediate remorse and contrition. This was a case of prolonged and deliberate neglect. The appellant was aware of K’s severely emaciated condition and of the potentially serious consequences of her persistent failure to properly feed him or obtain any medical attention for him.
Given the quite unnatural neglect of her child, it is understandable that efforts had been made to identify some psychological or psychiatric condition which might account for the appellant’s behaviour. Despite examination by various psychiatrists in the Northern Territory and in South Australia since 2002, severe borderline personality disorder was the only diagnosis ever made about the appellant’s mental condition. In light of that background, it was open to the Judge to conclude that the appellant’s medical and psychiatric condition provided only limited mitigation for her offending.
The combined effect of the circumstances in this case made it one of the worst examples of offending of this type. It is difficult to find any case involving comparable facts.
The appellant pleaded guilty to manslaughter. She entered the plea on the basis of her failure to obtain medical treatment for K. The Judge found beyond reasonable doubt that she also failed to provide necessary food for K in circumstances where a reasonable person would have realised that there was a high risk that death or grievous bodily harm would follow. Her Honour, in assessing the gravity of her offending, then went on to make observations about the appellant’s state of mind at the relevant time.
The Judge took into account the appellant’s previous history concerning another of her children, TJ. The appellant had been given warnings by various FACS workers and others in relation to TJ and she had been made explicitly aware of the serious effects of malnutrition upon a child. Ultimately, the Judge concluded that because the appellant was aware of the potential serious consequences, including death, of the failure to properly feed K or obtain treatment for him, her failure to do so was inexcusable. It placed the offending in a category amongst the most serious of its type.
Counsel for the appellant argued that these findings effectively amounted to a finding that the appellant had sufficient intent to make out the offence of murder. Implicit in this complaint is the suggestion that the appellant has therefore been sentenced for the crime of murder by recklessness and not for the crime of manslaughter by criminal negligence, to which she pleaded guilty.
The mental element for the crime of murder was considered by the High Court in R vCrabbe.[14] There the Court said:
It should now be regarded as settled law in Australia, if no statutory provision affects the position, that a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder if death in fact results. It is not enough that he does the act knowing that it is possible but not likely that death or grievous bodily harm might result.[15]
[14] (1985) 156 CLR 464
[15] At 469 – 470.
It can be seen that for the crime of reckless murder to have been committed, there must be some act or actions on the part of the accused carried out with the necessary state of mind. Here the crime to which the appellant pleaded guilty was a crime constituted by the appellant’s omission or series of omissions, rather than any act of commission. The distinction was an important one in the context of this case. Moreover the Judge did not go so far as to find that the appellant knew when she neglected the child’s needs that death was likely to result. She said:
Because of all these factors, you were clearly aware of the potential serious consequences, including death, resulting from the failure to properly feed [K] or to obtain medical treatment for him.
It is clear from the sentencing remarks as a whole that the Judge was alive to the relevant distinction when she said:
In sentencing you, I bear in mind that this is a case of criminal negligence and that you did not intend to kill or intend to cause grievous bodily harm to [K]. However, his death was caused by very serious criminal neglect, and this must be punished by a very serious penalty, namely imprisonment.
The fact that the Judge made findings that the appellant’s state of mind was such that she was aware of the potential consequences of her neglect of K does not mean that Her Honour misunderstood the elements of the offence for which she was sentencing the appellant. It supported the Judge’s assessment of the appellant’s level of culpability as being much higher than a person who was unaware of the possible consequences or who did not turn their minds to them. I do not understand the sentencing Judge’s remarks to go any further than that.
For these reasons I do not consider that there is any substance in the complaint that the Judge effectively sentenced the appellant on the basis of murder by recklessness.
I turn now to the appellant’s third argument. It was argued that a comparison with a schedule of other sentences passed in this Court since 2000 demonstrates in itself that the starting point of 12 years adopted by the sentencing Judge was manifestly excessive.
The difficulty with this approach in cases of manslaughter has often been adverted to by this Court, Indeed it was highlighted as recently as March 2007.[16]
[16] R v Goulding [2007] SASC 60 per Gray J at [18]
As King CJ observed in R vWeinman:[17]
The facts and circumstances of a crime of manslaughter are so varied that it is questionable whether the decisions of an appellate court can establish any intelligible standards.[18]
[17] (1987) 49 SASR 248.
[18] Ibid at 248.
The authorities referred to by counsel for the appellant in this case do no more than establish that some of the offences of manslaughter in this State since 2000 have attracted higher sentences than the sentence imposed in this case and some have attracted lower sentences. Some of those sentences were confirmed on appeal, others were imposed at first instance and not the subject of any appeal by either party. Sentences imposed by other judges for the crime of manslaughter do reflect the particular circumstances of that offending. None are relevant to the facts of the present case.
Whether or not the Judge’s starting point was manifestly excessive must be determined by reference to all of the circumstances surrounding the offending, together with the appellant’s personal circumstances.
The sentencing Judge made findings about these matters that were open on the evidence. The sentence imposed reflected those findings. This was an unusual, if not exceptional, case. I respectfully adopt the remarks of Gray J in Rv Foster:[19]
General deterrence is of particular importance in a case such as this. Persons entrusted with the care of innocent young children must be deterred from abusing their positions of trust and power. The court must extend the full protection of the law to vulnerable children and to the community by imposing sentences which will deter others. Adults must clearly understand that abuses of trust and power which lead to death will result in severe sentences of imprisonment.[20]
[19] R v Foster (No 2) [2001] SASC 154
[20] Ibid, at [5]
For these reasons I consider the sentence imposed by the Judge was reasonably proportionate to the gravity of the appellant’s offending.
The appeal should be dismissed.