R v Xiao

[2019] NSWDC 797

District Court

New South Wales

Case Name:	R v Xiao
Medium Neutral Citation:	[2019] NSWDC 797
Hearing Date(s):	16-20 September, 23-27 September, 30 September, 1-4 October, 8-11 October, 14-18 October, 25 October, 12 December
Date of Orders:	13 December 2019
Decision Date:	13 December 2019
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Sentence 10 years NPP 7 years and 6 months
Catchwords:	CRIME. SENTENCE.
Cases Cited:	McDonald v R (Unreported, NSWCCA 12 December 1995) R v AEM [2002] NSWCCA 58 R v GWM [2012] NSWCCA 240 R v Harrison (1997) 93 A Crim R 314 R v Hill (1981) 3 A Crim R 397 R v Radich [1954] NZLR 86 Sam v R [2011] NSWCCA 36
Category:	Sentence
Parties:	(Offender) Hong Chi Xiao   (Crown) Regina
Representation:	Offender:   Counsel – M. Avenell Solicitors – Toomey Defence Lawyers   Crown:   Counsel – G. Tabuteau and E. Curran Solicitors – ODPP
File Number(s):	2016/00213025
Publication Restriction:	Nil.

SENTENCE

1. HIS HONOUR: Hong Chi Xiao stands for sentence as a consequence of having been found guilty by a jury, unanimously, of the manslaughter of a boy who, at the time of his death on 27 April 2015, was six years and nine months old. The jury accepted the Crown case that the offender caused the death of the boy by criminal negligence or, as it is probably more properly called, gross negligence.

2. The boy had, on 14 April 2014, been diagnosed as being an insulin dependent diabetic. On that day he was taken by his mother to a general practitioner who immediately referred him to the Westmead Children’s Hospital where he was taken by his mother where the diagnosis of insulin dependent diabetes mellitus was made. The formal maker of the diagnosis was Dr Neville John Howard, a paediatric endocrinologist with extensive training in Australia, Canada and the United States of America.

Type 1 diabetes

1. To understand the nature of the case, it is necessary to understand something about insulin-dependent diabetes mellitus. Evidence was given at the trial by Sister Julie Klimek RN and by Dr Howard as well as two other medical practitioners. At p 201 of the transcript, Ms Klimek said this:

   “Type 1 diabetes is an autoimmune disease and what that means is that the child’s autoimmune system has attacked and destroyed the beta cells that are responsible for producing insulin. So for the rest of their life, they are unable to produce insulin, so we have to give it either by injection or pump therapy. Type 2 diabetes, on the other hand, they still produce insulin. They still have active beta [cells] but they’re insulin resistant, so their body can be resistant to that insulin. So they normally need to start with diet control. They can by taking a healthy diet and exercise, they can improve the use of their insulin within their bodies. Then they go to oral medication, which also will make the insulin better, and mean eventually if they don’t follow through, they can go on to insulin.”

   Ms Klimek…