Regina v Deborah Anne McDonald

[2001] NSWCCA 301

Reported Decision: 124 A Crim R 17

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Deborah Anne McDonald [2001] NSWCCA 301
FILE NUMBER(S):	CCA 60224/00
HEARING DATE(S):	Thursday 2 August 2001
JUDGMENT DATE:	2 August 2001
PARTIES :	Regina Deborah Anne McDonald
JUDGMENT OF:	Mason P at 1 & 32; Sully J at 2; Newman AJ at 32

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70221/98
LOWER COURT JUDICIAL OFFICER :	Ireland AJ

COUNSEL :	R. A. Hulme - Crown S. M. Kluss - Appellant
SOLICITORS:	S. E. O'Connor - Crown Stacks, Taree - Appellant
LEGISLATION CITED:	Crimes Act 1900 NSW
CASES CITED:	Ex Parte Corbishley; re Locke (1967) 2 NSWLR 547 at 549 R v Brown & ors. (1994) 1 AC 212 at 237
DECISION:	Leave to appeal granted; appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60224/00

MASON P

SULLY J

NEWMAN AJ

Thursday 2 August 2001

REGINA v DEBORAH ANNE McDONALD

JUDGMENT

1   MASON P: I invite Sully J to give the first judgment.

2   SULLY J: This is an application for leave to appeal against sentence. The applicant is Mrs Deborah Anne McDonald. The sentence is one that was passed upon Mrs McDonald by Ireland AJ on 14 April 2000.

3 The applicant pleaded guilty before his Honour to the manslaughter by gross negligence of one Shannon John Faichney. Such an offence contravenes sections 18(1)(b) and 24 of the Crimes Act 1900 NSW and attracts upon conviction a statutory maximum penalty of imprisonment for twenty five years. His Honour imposed a sentence of imprisonment for seven years, fixing in respect of it a non parole period of five years.

4   The facts of the matter, put shortly, are as follows.

5   On or about 6 June 1998 the victim was living in the home of the applicant and her husband. Also there at the relevant times was another young person who is identified only as BJT, he then being aged some fourteen or fifteen years.

6   During the afternoon of 6 June BJT set upon the victim and beat him with such ferocity that the injuries thus caused to the victim proved to be fatal.

7   The learned sentencing Judge, speaking of those injuries, says that they were, as his Honour puts it:

"Simply appalling. On almost every aspect of the body the examination revealed a variety of injuries consistent only with prolonged and repeated physical abuse derived from a variety of sources and objects
...
Death was due to a collection of blood over the brain. This had been caused by trauma probably in the form of the head being violently shaken or hit against a flat surface such as to cause the wide spread bruising of the face."

The victim was aged chronologically seventeen but his developmental age was closer to about twelve.

8   Exhibit 1 before his Honour is a summary of the relevant background of the victim. It runs to five closely typed pages spanning the years from 1986 to 1998. What it demonstrates is a history of abuse and cruelty of a kind which one would have hoped would have ceased long ere this to be present in any part of the contemporary Australian community. Reading that document one can only repeat the observations made by Holmes JA speaking for the Court of Appeal in Ex Parte Corbishley; re Locke (1967) 2 NSWLR 547 at 549. There his Honour, speaking of a manifestly unjust refusal to grant bail, says this:

"The picture is one which shows how the poor, sick and friendless are still oppressed by the machinery of justice in ways which need a Fielding or a Dickens to describe in words and a Hogarth to portray pictorially."

9   If one were to delete the words "by the machinery of justice", one would have, as I think, a perfect summary description of the appalling history and background apparent from exhibit 1.

10   It needs to be understood as well that the victim stood in height about 160 cms; that is to say, about five feet and three or four inches, his body weight was forty kilograms; that is to say, a little more than six, and a little less than six and a half, stone. The autopsy report reveals that he was physically underdeveloped; probably undernourished. He was in no position to protect himself against any kind of serious physical assault, and certainly not against an assault of the ferocity of the one which took place on the occasion of which I have earlier spoken. In almost every aspect of his daily living this particular victim was dependent in a real and substantial way upon other people.

11   An understanding of those matters is essential to an understanding of the view which the learned sentencing Judge took about the objective criminality of the particular matter with which he was dealing.

12   In that connection his Honour summarises in the following passages taken from page 15 of the remarks on sentence his conclusions concerning the nature and extent of the objective criminality of the present applicant:

"The evidence of others and her own admissions make plain that the offender was well aware of the violent nature of the assaults perpetrated upon the victim by BJT in the period of ten days or so prior to his death. She was fully aware of the escalation of this violence on the afternoon of the 6th June to the extent the victim lay unconscious on the floor. In gross breach of her duty of care, the offender did nothing by way of word or act or enlistment of aid to prevent or even discourage this brutal conduct by BJT, which caused the death of the victim.

The zenith of the offender's gross breach of her duty of care was reached when mindful of the gravity of the victim's injuries evidenced by her request that BJT sleep on the mattress beside the victim to keep an eye on him and twice requesting Mark McDonald during the night to go and check on him, the offender declined to seek the medical assistance which was so urgently and obviously necessary.
This failure to obtain medical help during the period of ten hours or more when the victim lay unconscious and during which medical assistance in all probability would have saved his life, amounted to 'wicked' negligence in the sense adverted to in R v Taktak (Ante)."

13   It suffices to say, in my opinion, that each and every one of the conclusions thus reached by his Honour was amply open to him in the circumstances of the case as disclosed by the entirety of the evidence placed before his Honour.

14   It was necessary, of course, for his Honour to bring to account a number of compelling subjective features of the applicant's case. Leaving aside for the moment some particular matters in that connection which lie at the heart of the present application, I would observe in general terms that, for my part, I do not see that his Honour failed either to identify correctly the relevant subjective matters, or to bring them adequately to account.

15   Three particular points are taken in support of the present application: first, that his Honour ought to have sentenced the present applicant in a way either identical with, or more closely related to, the way in which his Honour sentenced her husband; secondly, that his Honour has given either no, or no sufficient, discount for the plea of guilty; thirdly, that his Honour has correctly identified special circumstances; and, having correctly resolved to make some appropriate adjustment on account of them, nonetheless, has not sufficiently adjusted the non parole period. It is convenient to deal, in order, with each of those three submissions.

16   The first of those submissions involves, of course, a parity argument. In that connection it needs to be understood that his Honour passed upon the applicant's husband a sentence of imprisonment of four years, comprising a minimum term of eighteen months and an additional term of two years and six months.

17   It is obvious from reading his Honour's remarks on sentence in the matter of Mr McDonald, that his Honour proceeded in that case upon the basis of a number of findings very favourable to that particular offender in connection with his subjective circumstances. His Honour returned to that aspect of affairs in dealing with the present applicant. For it had been submitted to his Honour that the culpability of the present applicant rested at the same level as that of her husband; but leaving aside the consideration of assistance which he had offered to give to the Crown in connection with the proceedings against the present applicant.

18   His Honour dealt with that proposition by rejecting it for reasons stated by his Honour as follows:

"Apart from his assistance to authorities, which is itself a significant matter, the offender's dominant role in the household into which she introduced the victim, her husband's passivity and timid nature, his medical history which engendered fear of involvement in physical violence and his efforts, albeit in any meaningful way unsuccessful, to have BJT leave the victim alone, make considerations of parity of sentence of little significance in this case".

19   I respectfully agree with the entirety of what is thus said by his Honour. The findings of fact material to that process of reasoning are sound; and it was not contended on the hearing of this application that they were not. In my opinion, the submission as to parity has not been made good.

20   With regard to the plea of guilty, his Honour acknowledged it, but took this view:

"The offender is certainly entitled to have these factors (that is to say contrition and utility) taken into account and I do so, however, the lateness of the plea in the context of the co accuseds BJT and Mark McDonald both having given undertakings to give evidence against her, and the consequent strength of the Crown case, largely devalue the benefit to which the offender is entitled".

21   I would myself have thought that even apart from co-operation on the part of BJT and of the applicant's husband, the Crown case against her was a strong one, even if viewed only from the point of view of the combined effect of the facts and circumstances surrounding the ultimately fatal assault upon the victim, and the admissions by the applicant herself in her electronically recorded interview with the investigating police.

22   Be that as it may, I am not persuaded that there is any error, whether of fact or of law, in the approach adopted by his Honour in the passage to which I have referred. In my opinion, the second ground of the application has not been made good.

23   As to the matter of special circumstances and the adjustment of any sentence otherwise proper on account of those circumstances, his Honour dealt with that matter briefly and in the following terms:

"The offender's mild intellectual disability is a factor which warrants some consideration by way of special circumstances within the meaning of s 5(2) of the Sentencing Act in that a marginally longer period of supervision than provided by the statutory ratio is called for."

24   His Honour in fact allowed, on the figures given by him, some three months on account of that "marginally longer period of supervision".

25   The related questions whether special circumstances have been established in a particular case and, if so, what practical effect is to be given to them, are matters of seemingly endless controversy in this Court, involving, as they do in every case, a fairly fine exercise of particular judgment. It would be possible to deal with that aspect of the present case by saying simply that there is, so far as I can see, no fundamental error of reasoning in the approach taken by his Honour.

26   I would add this consideration, which the circumstances of this appalling case seem to me to justify.

27   At the conclusion of his speech in R v Brown & ors (1994) 1 AC 212 at 237 Lord Templeman makes these observations:

"Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised".

28   It seems to me that there are cases, of which, in my opinion, the present is most emphatically one, where what has been done to constitute the crime is so wanton in its cruelty and inhumanity that it simply becomes beside the point to indulge in the shuffling of percentages and arithmetical formulae. There are cases, of which I say again the present one is, in my view, certainly to be numbered, where the sheer appalling lack of civilised behaviour in any sense is so powerful that the vindication of the primary purpose of sentencing, which is the protection of the public, requires a firm and resolute stance that gives preponderant weight, not to rhetorical subjective invocations, but to a level-headed understanding of the objective enormity of what has been done in the particular matter.

29   For the whole of those reasons, I am of the opinion that the present challenge to the sentence passed upon the applicant has not been made good. I would grant leave to appeal and dismiss the appeal.

30   MASON P: In this case the experienced sentencing Judge reviewed all of the relevant facts and submissions. He properly confined himself to a focus on the criminality of the present applicant when sentencing her for the manslaughter offence to which she pleaded guilty.

31   I agree with Sully J, that none of the grounds of appeal advanced in today's application have been made good and with the order which he proposes.

32   NEWMAN AJ: I agree with the reasons and orders proposed by Sully J.

33   MASON P; The orders of the court will be as indicated.

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