R v Pyrczak
[2011] VSC 219
•15 April 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0055 of 2010
| THE QUEEN |
| v |
| MARY PYRCZAK |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 January, 1 February & 11 April 2011 | |
DATE OF SENTENCE: | 15 April 2011 | |
CASE MAY BE CITED AS: | R v Pyrczak | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 219 | |
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CRIMINAL LAW – Criminal negligence – Plea of guilty – Circumstances of offence – Existence of exceptional circumstance – Nature of the relationship with the victim.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Tinney SC | Office of Public Prosecutions |
| For the Accused | Mr P. Morrissey SC | Matthew White & Solicitors |
HIS HONOUR:
Mary Pyrczak, on 9 December 2010 you pleaded guilty before me to the manslaughter of your mother Kateryna Pyrczak, who died at 11.40pm on 10 November 2008 at the Western General Hospital, Footscray.
The cause of your mother’s death was multi-system organ failure, septicaemia and frank gangrene of the right lower leg, and multiple extensive pressure ulcers. Your mother was 72 years of age.
An autopsy done by Dr Malcolm Dodd stated that there was:
· gangrene to the left big toe;
· ulceration of and dried dead tissue on the left leg, and marked cellulitis (inflammation) of the skin of the leg;
· atrophied muscles in the right upper leg;
· gangrenous right lower leg and foot with maggot infestation. The toes were blackened and mummified. The skin on the sole of the foot was thickened and partly separated;
· large areas of open ulceration to the back and buttocks, some of them showing faecal contamination;
· large area of ulceration to the left hip.
Your mother was transported to hospital by ambulance on the morning of 10 November from her premises at 46 Chedby Drive, St Albans following a “000” call that you made from a phone box next to the Ginnifer Railway Station. You had made that call because your mother was refusing to eat.
When the paramedics arrived, they found your mother on the floor of the kitchen covered in blankets and a dressing gown which was stained with maggots, maggot casings and faecal matter. She was naked underneath. There was evidence that your mother had been in this position for a number of days.
Your mother appeared emaciated, stiff, not able to talk, pale, dry, and presented with multiple oozing ulcers on her back, arms and legs. She had a necrotic right foot which was infested heavily with maggots, and there was a large amount of faeces between her legs, on her back and around her body, between three or four litres in total, which had built up over time. Attempts were made by the paramedics to clean her, but a large amount of dried faeces still remained on her despite their attempts.
There was only one tap working in the house. Your mother was then taken to the Western General Hospital, Footscray. Initially the deceased was cleaned by nursing staff upon admission, then aggressive treatment was considered, though her health continued to deteriorate to the point that further treatment was regarded as not beneficial. At 11.40pm on that day, your mother died.
It was the opinion of various doctors who attended the deceased that the outcome may have been different if there had been earlier presentation and revascularisation of the lower limbs. That there had been significant delay in seeking medical help, and the result of this delay, was a major factor in her death.
You have pleaded guilty to the manslaughter of your mother. The crime of manslaughter is committed in various ways. Your crime is based upon the principles of negligence. Negligence in turn is based upon breach of duty of care which is owed to another, in your case your mother. You failed to care for your mother to such a degree that, as a result of your negligence, she died.
One of the great difficulties about this case is to establish just what happened to your mother. I have set out the state she was in at the time you eventually called the ambulance on Monday 10 November 2008. It seems she had been on the kitchen floor for at least a week, and that some of the other injuries, particularly to the right leg, must have been present at a significantly earlier stage.
Such descriptions that you have given of events of what you did do not appear to be supported by the observations of witnesses or by the medical evidence. Your assertions that you had been cleaning your mother and either changing her nappies or making arrangements for it to occur do not appear to be true. When interviewed by the police, you accepted that your mother’s health had been in decline for about six months, particularly her ability to walk. You said that you had told your mother to go to the doctor, but your mother had been reluctant to do so, in part, because of her upbringing. Your mother did go to the doctor in May 2008, but did not continue with any tests or treatment, and you said that although the doctor had given your mother a prescription, she did not get it filled because she regarded it as being too expensive.
You told the police of an incident in September when your mother fell in the kitchen and you got assistance from your neighbours because you were unable to pick her up yourself. You said that when you came to the house on or about 2 November 2008, your mother was half sitting or half lying on the floor, but otherwise capable of moving about. On 2 November, you made her have lunch and she told you not to call the neighbours because she would be all right. She declined your offer to get an ambulance.
You said that by the Friday your mother was refusing food. You said you did make some calls in an attempt to get assistance. Call charge records obtained by the police show that three calls were made on Sunday from the public phone booth at Ginnifer Railway Station that could be described as calls seeking assistance. They did not lead to any.
You told the police that you did eventually call the ambulance on Monday 10 November. You said you changed her nappies and that you were conscious of dealing with the body of your mother. You had known about the change to her feet since about May or June, and knew that it had deteriorated. You thought it was gout. When you were told that part of your mother’s leg had died, your response was, “You’re joking.”
You said if you had known the ambulance was free, you would have called them. You said you did not realise that your mother’s condition was as serious as it was found to be. Eventually you said, when confronted with the description of what had happened, “I’ve probably stuffed things up. I mean, just arrest me. Stick me in gaol. I told my mum this would happen. I said, you know, ‘If you keep refusing help, I mean they’re just going to blame me’, so I mean, you are blaming me.”
There is no reason to believe that you had any ill-feeling for your mother. When asked to explain your failure to act, you said, “Just stressed or something. I didn’t know, maybe I was just stupid. It was like I never realised about the maggots, nothing at all. I mean I probably should have because I mean I studied science.” You accepted that there were other means of getting assistance which you did not take up, including the assistance of neighbours or the possibility of calling the police.
You were able to recount to the police what your mother said. “There’s a few times when she’s actually said, ‘Oh gee, this hurts.’ But she wasn’t screaming the whole day or anything like that.” You were always asked whether or not you had provided the right level of care to your mother, to which you responded, “Well it doesn’t look like it, does it?”.
You said to the police that you would visit your mother every night until the last fall that she had at least a week before she passed away, at which point you decided to move in with her. You claimed you fed her and that you would change her nappies. When questioned further, you stated that you had only changed the nappies a few times as your mother would do it herself and then hand you the soiled nappies. The police, however, when they examined the premises, found no evidence of nappies either used or unused.
When asked about your mother’s level of hygiene, you said you had noted a slight odour, but were not sure of what to do about it. You never investigated where the flies around your mother were coming from and, as I have already pointed out, when told that part of your mother’s leg had died, your response was, “You’re joking.”
The first task for me is to attempt to set out the criminality for which you fall to be punished. The prosecution submitted that I should take the view that your criminality would arise from your failure to get proper medical care for your mother, over the period commencing not later than September 2008, when you were assisted by the neighbours and told by them that they thought your mother was very unwell and should be in a home.
Cases of manslaughter by omission are difficult conceptually. A similar case has been dealt with by the Court of Criminal Appeal in New South Wales. Namely, R v George.[1] In that case, the court said this:
“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 and unconscious.”[2]
[1][2004] NSWCCA 247.
[2][16].
In this case you had voluntarily assumed the care of your mother, who was unable, by her age and incapacity, to look after herself. You failed to do so, which led to your mother’s death, and you are therefore guilty of manslaughter.[3]
[3]R v Hall (1999) 108 A Crim R 209.
I am satisfied that you did have a clear duty to act when your mother was found on the floor by you on or about 2 November 2008. Although you may have been bound to honour your mother’s wishes as to not getting an ambulance, you could have obtained assistance from neighbours, or even friends. And again, that is not withstanding your mother’s wish to the contrary, although that is a consideration.
I have come to this conclusion because of what you knew of the events in September 2008. You knew that your mother was in great difficulties once she had fallen to the floor and that she was incapable of getting off the floor. Your criminality arises out of your failure to look after your mother in the last nine days, in particular, of her life. That conclusion follows from the fact that any reasonable observer would have undertaken the need to have your mother get back on to the couch or into bed, or into hospital, from the outset.
It is hard to understand your failure to act. I accept that in part it is because you accepted what your mother said to you. I am satisfied that at the very least, you did not like doctors and did not trust them. Your mother appears to have shared your view, at least to some degree.
In this case, there is some disagreement between the psychiatrists about what other matters are in play. Professor Davis gave evidence before me on your behalf, and his report, dated 15 June 2010 was tendered in evidence. The prosecution tendered a report from Dr Prashant Pandurangi, dated 1 December 2010. Dr Pandurangi was a senior registrar (forensic psychiatry) at the Victorian Institute of Forensic Mental Health. His report had been prepared under this supervision of Dr Danny Sullivan.
It is urged upon me that I should regard the level of your criminality as high. It is the prosecution’s submission that I should not act on the evidence of Professor Davis, who was very thoroughly cross-examined before me.
The dispute between the psychiatrists revolved around the proposition of whether or not Professor Davis’s opinion that you depersonalised in the week leading up to your mother’s death is valid. The contrary opinion, expressed by Dr Pandurangi, was this:
“Although it is possible that Ms Pyrczak may have been in a state of depersonalisation during the week leading to the death of her mother, memory difficulties are not a usual feature of depersonalisation and the symptoms which she reported are not typical of depersonalisation”.
You will note that that, in any event, is a reasonably guarded disagreement with the opinion of Professor Davis.
It is necessary to set out a number of things that Professor Davis said in his report:
“From my examination of Mary Pyrczak, the following I feel should be considered:
Mary Pyrczak was a loving daughter who was Kateryna Pyrczak’s sole support and carer. The relationship as described was beneficial to both parties emotionally and physically, and there was no history of abuse.
Both Mary Pyrczak and Kateryna Pyrczak led a fairly parsimonious existence due to the limited income of both parties and spending and accrual of debt was kept under tight control. Mary Pyrczak ensured that her mother had nutrition, nappies for her double incontinence, and exhorted her to attend doctors in the last few months of her life even though Mary Pyrczak herself had a fear of medical professionals.
There is no evidence to suggest that Mary Pyrczak has ever suffered with a psychotic condition or was suffering with an episode of psychosis which might have affected her judgement in relation to her mother’s case in the week prior to her death.
There is no evidence to suggest that Mary Pyrczak has been, or is, intellectually disabled or suffers with cognitive deficits such that she does not have the intellectual capacity to weigh up and make decisions about her own life circumstances or for her mother.
There is no evidence on the material obtained at interview to suggest that Mary Pyrczak has a defect in personality which would predispose her to disrespect the rights and feelings of others, obligations and laws imposed by society, or to try and justify unlawful and reckless behaviour, actions or decisions. Such is usually the case, particularly with antisocial personality disorders and those with psychopathic tendencies, none of which either on life history or on specific questioning appear to be present with Mary Pyrczak.
Mary Pyrczak has offered no motive as to why she would want to kill her mother but rather has indicated that she wanted her mother to live and could not cope with the prospect of her dying. Even if it could be argued that Mary Pyrczak stood to gain by her mother’s death through inheritance of her estate, it is inconceivable that she would cause her mother’s demise in this manner when blame could so readily be attributable to her apparent lack of action.
Is there any explanation for Kateryna Pyrczak’s death which is consistent with the material provided at interview by Mary Pyrczak? In my opinion, Mary Pyrczak clearly has led a somewhat isolated and frugal existence over the last fourteen years since being retrenched from the Gas & Fuel Corporation. She has supported her mother and showing her commitment and love for her by daily involvement in her life. There is no history to suggest exploitation, maltreatment, abuse or neglect during those years
Mary Pyrczak has a longstanding phobia for medical professionals and the health care system. Negative attitudes of her grandfather and her own mother (based upon her own experiences in childbirth and at other times) have contributed to Ms Pyrczak’s fears in this area. She has researched many aspects of medical care and treatment and feels that her fears are justified. She acknowledges her anxiety about doctors and hospitals and deals with this through avoidance whenever possible. However, she is sensible enough to realise that sometimes doctors are necessary. Nonetheless, both Mary Pyrczak and it would appear Kateryna Pyrczak saw doctors and hospitals as a last resort whatever the underlying cause for this attitude. Such attitudes have predisposed self help or denial of medical problems.
Mary Pyrczak has a personality that requires order and control – the obsessive compulsive personality. Despite being perfectionistic in many areas, there can be some areas of life where standards are sub-optimal – rigidity, inflexibility and stubbornness may contribute to attitudes and behaviour. When not in control, anxiety and/or depression may supervene. Mary Pyrczak has a history of panic and, on at least one prior occasion, depersonalisation under stress.”
31 Later, he says:
"From the description Mary Pyrczak has given, I think there is no doubt that, in the last week of her mother’s life, she herself was depersonalised, the stress for this depersonalisation being her own physical illness (from her failure over many years to deal with her severe menstrual problems) and the profound anxiety and fear that came upon her when she discovered her mother in a parlous situation and felt powerless to help. She had no knowledge of the consequences that can occur when a patient, especially an elderly patient, is placed in a static position for hours, let alone days, on end. By her account she thought she was doing the right things, that is, providing food and fluid, covering her mother and letting her mother clean herself up and dispose of the nappies. She was not in a position to bathe her as she could not even bathe herself, this problem with being able to bathe being a feature of her own severe dysmenorrhoea episodes. By her account she harboured the belief that her mother would get better and that she would be able to assist her as soon as her own physical problems resolved. She states that her mother did not appear to be distressed and was lucid at all times. She states that her mother did not request to see a doctor or have an ambulance called, but when she herself realised the situation her mother was in she took steps to obtain assistance, this being thwarted the lack of a telephone which meant that the Nurse On Call and locum wouldn’t respond.
It is my opinion that Mary Pyrczak, in the physical and mental state she was in during the last week of her mother’s life could not have acted in any other way than in the manner which has proved to be so tragic. In my opinion her actions were not drive by malice, greed or other criminal motives, and nor were they driven by indifference, lack of love and affection, or by laziness and a failure to accept responsibility.
It can be argued that Mary Pyrczak should have known that her mother was in a compromised physical state for some time prior to her death. She had difficulty in walking and mobility, was doubly incontinent and had fallen in the past before. The mother complained of various pains including epigastric discomfort and yet Mary Pyrczak did not call the doctor to the home. She knew that the mother had gone to the doctor of her own accord on 27th May 2008 but, according to what she told me, she did not know of the follow up visit and the letter to Dr Lim until afterwards. In her mind, her mother was making her own decisions about her health care, albeit influenced by her negative attitude for the medical profession. At no stage was an alternative decision maker appointed either by way of the Guardianship and Administration Board of by Medical Enduring of Attorney or Enduring Power of Guardianship executed by Kateryna Pyrczak while competent which would have enabled Mary Pyrczak to be more assertive or even possibly override her mother’s wishes regarding health care.”
Whether you were depersonalised or not, I am of the view there is much in what Professor Davis has said about you and, in particular, the relationship with your mother. I proceed on the basis that, for whatever reason, you had a totally inadequate appreciation of your mother’s medical condition and were incapable of properly dealing with it from 2 November. I accept that you were significantly affected by what you thought were your mother's wishes.
The test which leads to this crime is an objective one, and it is a gross breach of the duty which led you here. I am satisfied that you are remorseful and I regard your plea as very significant given the consequences of you in accepting that your failure caused your mother’s death, a step in your case which I regard as being a very important one.
You were born in Poland on 2 May 1959. You lived there until you immigrated with your parents to Australia in 1966. Six months after arriving in the country, your father was unfortunately killed in a motor vehicle accident. From this point on it was just you and your mother, except for a brief period when your mother remarried in 1973 for a period of 15 months. That relationship was largely an abusive one.
You attended St Albans High School, where you obtained your High School Certificate, and then proceeded to work for an insurance company in the clerical field until commencing work with the Gas and Fuel Corporation in 1981. You worked there for the next 14 years until you were made redundant in 1996. You have not been employed since.
You have had a few relationships in your life, but none of them resulted in marriage and they were mostly of relatively short term duration. You told Dr Pandurangi, who examined you on 23 December 2010, that you have never had any contact with mental health services, at least until you had some problems towards the end of your employment at the Gas and Fuel Corporation. You were initially prescribed Fluoxetine, an anti-depressant medication, by Dr Barro who is a general practitioner, but this was changed to Dothiepin by Dr Blow, a psychiatrist to whom you were referred. After about nine months of taking the anti-depressant medication, you stopped taking it, believing that you were feeling much better, and have stated you have not been in contact with any mental health services since.
Medically, you have had an issue from a young age with your menstrual cycles. You would suffer periods of dizziness, cramps and heavy bleeding, but would never see a doctor about it as you found them to be useless, as your past experience when you were diagnosed with irritable bowel syndrome was not, in your eyes, a very helpful process.
You have said that you had a good relationship with your mother, that you had been in contact every day and assisted her with daily activities. You would take her out shopping and attend social functions with her. She lived alone. When you realised that you needed more support, you moved into her premises. It is stated in Professor Davis’ report that you realised that your mother had become totally reliant on you, and you accepted the role willingly of caring for your mother. The relationship between the two of you was described by Professor Davis in a passage that I have already quoted as “beneficial to both parties emotionally and physically, and there was no history of abuse.”
It is an important feature of this case that on 14 September 2008, you asked for assistance from your neighbours next door, Yi Wei and Tingue Xie, as your mother had fallen down and needed help moving her from the floor to the toilet.
They noticed that your mother was dressed in a dirty dressing gown and pants which were wet and smelt strongly of urine. They had to lift her quite strongly, as your mother could not support herself, and they effectively carried her to the toilet. David Hsu and De Lin, who also resided next door, also came over to help.
It was noticed that the deceased’s right foot was black and bone could be seen on the toes. You indicated that your mother was all right, that she had seen a doctor, that she was healthy, and that she did not want to go to an aged care facility, although at that time, according to those witnesses, your mother stated that she wanted to try living in a nursing home.
Despite the strong urgings of the neighbours and the obvious unwell state of your mother, you did not seek any medical assistance for your mother. I have dealt in detail with what Professor Davis said as to what your response was. I would join with many in saying that when one looks at the shocking state your mother was found in, it is very difficult to understand how you did not respond. However, it is clear that your failure to act was not in any way malicious.
I have taken into account, because it is an important feature of the crime that you have committed, that while your mother was compos mentis, she had the right to make her own decisions. But you should not have left her on the floor, even if she was saying to you that she did not want the neighbours called.
When this matter was due to come on for sentence, on 4 April last, you reacted adversely to your circumstances and finished up being taken into what might have been called protective custody. I revoked your bail on 1 April. You have been in custody, therefore, since 31 March 2011. Professor Davis, who is now working in Hobart, happened to be in Melbourne last Monday and he was able to re-examine you. He confirmed much of what he had said about you previously, and he is generally of the opinion that imprisonment would be more onerous for you than it would be for many others. I am satisfied that that proposition is true.
Mr P. Morrissey, who appeared on your behalf, submitted that in this case it would not be necessary to impose a term of imprisonment to be immediately served, having regard to the circumstances and in particular, the principles set out by the Court of Appeal in R v Verdins.[4]
[4][2007] VSCA 102.
I am satisfied on the balance of probabilities that Professor Davis’ opinion should be accepted. There have been a wide range of conditions accepted by this Court and by the Court of Appeal as opening up Verdins considerations. I have applied the Verdins principles to your case, with regard in particular to moral culpability, just punishment, denunciation and general deterrence. I do not regard specific deterrence as being a particular important feature of this case.
Equally, I am satisfied, insofar as it is relevant, that your prospect of rehabilitation is quite good. It should also be noted that your physical health has created difficulties, and you were diagnosed with a very large fibroid in your uterus. I had understood that you were to have an operation for that condition prior to sentence, and it was why I had deferred sentence for the time that I had.
However, medical circumstances have been such that you have not had that operation because the doctors appear to want to do further work on what the condition of your heart might be in relation to such an operation being carried out and there are still tests to be completed. You still suffer from that condition and the consequences of it, although some of the difficulties with your very severe period pain that you have suffered previously has been alleviated by medication.
It was submitted to me by Mr A. Tinney, who appeared on behalf of the prosecution on the plea, that I should have reservations about the matters going to you suffering the very severe period pain which led to a number of your difficulties during your mother’s last illness because you did not go into those matters in detail with the police officers in the interview.
I must say, I do not regard it as at all surprising that, in the circumstances of the interview and the particular questions that were asked of you, you did not say any more about the matter and I am prepared, as I have already noted, to accept what has been said by Professor Davis about the matter.
I have decided that, notwithstanding the awful consequences of your failure to act, it is appropriate as part of the sentencing exercise to extend mercy to you. That arises principally because your crime is one of omission rather than commission. I have decided that I must impose a term of imprisonment upon you, but I have decided that in all the circumstances, that sentence may be served in the community. There are many people who will disagree with me. I act in accordance with my conscience and regard that as the appropriate sentence to impose.
Before coming to the decision, I have had regard to the matters set out in s 27(2A) of the Sentencing Act 1991. The offence with which you have been charged is a serious offence and I am constrained from imposing a suspended sentence upon you unless I regard as (a) appropriate because of the existence of exceptional circumstances; and (b) in the interests of justice.
I do regard your case as exceptional because of the very nature of your offending and the contradiction between the result and the genuine care that you had for your mother.
It has often been stated, and it is true, that cases of manslaughter by criminal negligence are at the lower end of cases of their kind. Although you did have the responsibility for the care of your mother, I regard it as an exceptional circumstance that she was entitled to exercise her own will and that put you in a position which was outside the position that a person ordinarily exercises in care would be. That is a matter of great regret that both you and your mother had the view about the efficacy of medical treatment that you both appeared to have held.
You are sentenced to be imprisoned for three years. I suspend all but 15 days of that sentence for the period of three years.
I declare that you have served 15 days pre-sentence detention. I direct that that declaration and its details be entered in the records of the Court. I direct that my reasons for finding exceptional circumstances in your case be entered in the records of the Court.
I am obliged, pursuant to s 6AAA of the Sentencing Act 1991, to say what sentence I would have imposed upon you had you not pleaded guilty. As I have already noted, I regard your plea of guilty in this case, accepting as it does your responsibility for causing the death of your mother, as a very important sentencing consideration. I would have, had you not pleaded guilty, sentenced you to be imprisoned for five years with a non-parole period of two and a half years.
The Court orders, pursuant to s 464ZF(2) of the Crimes Act 1958, that Mary Pyrczak undergo a forensic procedure for the taking of a scraping from the mouth in accordance with sub-division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database.
Pursuant to s 464ZF(2A), I further order that Mary Pyrczak, for the purposes of undergoing the said procedure, report to the Officer in Charge of the Keilor Downs Police Station at Sunshine Avenue and Copernicus Way during the period of four weeks commencing 28 days after the day of this sentence, or once any instituted conviction appeal is finally determined or the conviction for a forensic sample offence is upheld, whichever is the latter.
Having considered the seriousness of the circumstances of the forensic sample offence, I am satisfied that in all the circumstances the making of the order is justified for the following reason; the seriousness or the circumstances of the offending warrant the order and the order is not opposed. And the granting of the order is in the public interest.
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