Sam, Thomas v R Sam, Manju v R - [2011] NSWCCA 36

Court of Criminal Appeal

New South Wales

Case Title: SAM, Thomas v R SAM, Manju v R

Medium Neutral Citation: [2011] NSWCCA 36

Hearing Date(s): 12 October 2010

Decision Date: 10 March 2011

Jurisdiction:

Before:
McClellan CJ at CL at [1]
Hoeben J at [179]
R A Hulme J at [180]

Decision:
1. Appeals against conviction dismissed.
2. Leave to appeal sentences granted but appeals dismissed

Catchwords:
CRIMINAL - Appeal against conviction - criminal negligence manslaughter of baby - standard of care of a reasonable parent - standard of care of a reasonable homeopath - verdict unreasonable having regard to evidence - not callous disregard or uncaring negligence - evidence of medical appointments not sufficient to refute liability - appeal dismissed.

CRIMINAL - Appeal against sentences - severity appeal - delay in bringing trial to court - second child born in interim - extra-curial punishment not found - appellant threatened sentencing judge but judge not required to step down - Leave to appeal against sentences granted but appeals dismissed.

Legislation Cited:
Limitation Act 1969 (NSW).
NSW Lotteries Corporation Act 1996 (NSW)
Public Lotteries Act 1996 (NSW).
State Owned Corporations Act 1989 (NSW)

Cases Cited:
Hill v R [2003] NSWCCA 16
Masciantonio v R (1995) 183 CLR 58
R v Eriksson [2001] NSWSC 781
R v HA [2008] NSWSC 1368
R v HMF [2005] NSWSC 1214
R v Johnston [2007] SASC 300
R v McDonald [2001] NSWCCA 301
R v O'Brien [2003] NSWCCA 121
R v Taktak (1988) 14 NSWLR 226
R v Wilkinson [1999] NSWCCA 248
Rickard v R [2007] NSWCCA 332
TKWJ v The Queen (2002) 212 CLR 124

Texts Cited:

Category: Principal judgment

Parties:
Thomas Sam (appellant)
Manju Sam (appellant)
The Crown

Representation

- Counsel:
Counsel:
J Glissan QC/W Wilcher (Thomas Sam)
M Thangaraj SC/D Barrow (Manju Sam)
D M L Woodburne SC (Crown)

- Solicitors:
Solicitors:
KP Lawyers and Barristers (Thomas Sam)
Uther Webster & Evans (Manju Sam)
Director of Public Prosecutions (Crown)

File number(s): 2008/192972008/19298

Decision Under Appeal

- Court / Tribunal:

- Before: Johnson J

- Date of Decision: 28 September 2009

- Citation: NSWSC1003

- Court File Number(s) 2008/192972008/19298

Publication Restriction:

Judgment

McCLELLAN CJ at CL : Gloria Sam was born on 18 July 2001 and was aged 9 months when she died. Her parents Thomas Sam and Manju Sam were tried for her manslaughter. They were found guilty of her unlawful killing by criminal negligence. They were sentenced to periods of imprisonment. Thomas Sam was sentenced to 8 years imprisonment with a non-parole period of 6 years. Manju Sam was sentenced to imprisonment for 5 years and 4 months with a non-parole period of 4 years.

Both parents appeal their conviction and also seek leave to appeal their respective sentences.

Facts

The primary facts from which the Crown framed the case against the appellants are found in oral evidence at the trial, contemporaneous photographs and the account which each appellant gave to the police. The evidence described the physical condition of Gloria, her deteriorating condition and the care afforded her by her parents before she died. Her death occurred in hospital at 1.20 am on 8 May 2002.

Thomas Sam was trained as a homeopath with a Bachelors Degree in Homeopathic Medicine and Surgery from the Mangalore University in India, a Bachelor of Science degree from the University of Kerala in India and a Masters Degree in Pubic Health from the University of Western Sydney. He practised as a homeopath in India prior to 1995. He has both practised and taught homeopathy in Australia. He is not qualified as a medical practitioner in Australia.

Manju Sam holds a Bachelors Degree in Physics and a Postgraduate Diploma in Computer Applications. She has worked as an administrative assistant with HCF in Sydney.

In the days after her birth the appellants took Gloria to the Earlwood Early Childhood Centre. They went on four occasions between 25 July 2001 and 4 October 2001. Gloria's growth and development were assessed as normal.

When she was taken to the centre on 4 October 2001 she was seen by a nurse who observed eczema on her face and behind her ears. The nurse advised treatment with sorbolene to moisturise the skin and prevent it from drying out.

By the time of her visit to the centre on 13 November 2001 the eczema had spread. It was now all over her body, limbs and face. The nurse (Nurse Lee) advised the appellants to consult a skin specialist and in the meantime advised the use of baby oil, sorbolene massage and oat bath.

The appellants did not take Gloria to a skin specialist. The photographic evidence tendered at the trial indicated serious problems with Gloria's skin and on occasion she appears to be in physical distress and crying.

In late 2001 Thomas Sam contacted his uncle, K Oomen George, who was a homeopath living in the United States of America. He told his uncle that Gloria had been diagnosed as suffering from "extensive atopic dermatitis with nutritional imbalance." K Oomen George advised that particular homeopathic supplements should be given to Gloria. Thomas Sam acted on the advice.

Gloria was not taken to a medical practitioner between 13 November 2001 and 11 January 2002.

In January 2002 Thomas Sam was working as a homeopath at the Liverpool Medical Centre conducted by Dr Vipin Goyal, a general practitioner. On 11 January 2002 Manju Sam consulted Dr Goyal about Gloria's condition. Thomas Sam was present for part of the consultation. Dr Goyal considered Gloria's rash to be serious and warranting referral to a specialist dermatologist. He gave evidence that he considered it to be "one of the most serious rashes I have seen." Dr Goyal gave the appellant a referral to Dr Phillip Artemi, a dermatologist. Dr Goyal told Manju Sam that Gloria "was serious and she should see (Dr Artemi) at the earliest."

Dr Goyal did not see Gloria again. Notwithstanding Dr Goyal's strong advice the appellants did not take Gloria to see Dr Artemi. Photographs of Gloria taken on 15 and 16 January depict large areas of very red and elevated skin on Gloria. She is visibly upset and it is reasonable to infer that this is because of her skin condition.

On 7 February 2002 Gloria was taken by the appellants to the Earlwood Early Childhood Centre. She was seen by Nurse Harnett who observed that the child had lost 200 grams of weight over the preceding three months. Nurse Harnett considered that this indicated a substantial lack of growth and informed the appellants of her concerns. Gloria was crying and was so uncomfortable that Nurse Harnett could not complete her examination. Nurse Harnett observed severe eczema on Gloria. She expressed concern about her health and urged the appellants to take her to a skin specialist at the Prince of Wales Hospital. Nurse Harnett told the appellants that she believed Gloria's lack of growth was due to the need for her body to divert energy to fighting the eczema. Nurse Harnett arranged for the appellants to see Dr Brian Symons, a paediatrician at the Earlwood Early Childhood Centre.

Dr Symons saw Gloria the next day. He observed severe eczema. Gloria appeared to be unhappy and was scratching. Dr Symons advised that some simple hygiene steps be taken and advised the continued use of sorbolene cream, cod liver oil and Sigmacort, a cortisone ointment. He was unaware of the benefit, if any, of the homeopathic treatment which they were applying. Dr Symons advised the appellants to consult a paediatric skin specialist.

Dr Symons saw Gloria again on 19 February 2002. Her condition had improved, her skin was less red. She appeared to be happier and was laughing.

An appointment was arranged for the appellants to take Gloria to the Sydney Children's Hospital at Randwick on 4 April 2002 the earliest date upon which Dr Wargon, a paediatric dermatologist, was available.

Some days later Dr Symons was contacted by the appellants who indicated that they had decided that Manju Sam and Gloria should travel to India to stay with Manju Sam's parents. Their belief was that this would enable Manju Sam to receive assistance given the problems being experienced by Gloria. Dr Symons was concerned that this would mean that Gloria would not be seen by Dr Wargon and would interrupt Gloria's treatment in Sydney. Dr Symons "expressed unhappiness" about the proposed arrangements.

Thomas Sam assured Dr Symons that Gloria would be treated in India by a skin specialist. Nevertheless Dr Symons remained concerned that Gloria should receive appropriate treatment and expressed his concerns to the appellants. There is evidence that Gloria's skin condition had improved before she left with her mother for India although the reliability of this evidence and the extent of any improvement are not clear.

Manju Sam and Gloria left Australia for India on 23 February 2002. They travelled to Kerala in southern India where they lived for a time with Manju Sam's parents. On 25 February 2002 Manju Sam took Gloria to the Century Hospital in Kerala where she was examined by Dr Joseph Mohan, a paediatrician. He observed the child to be alert although constantly crying. Her weight gain was inadequate although acceptable but she had widespread dermatitis and eczema. Dr Mohan referred Gloria to Dr Thomas, a skin specialist at the hospital.

Dr Thomas examined Gloria on the same day. He observed extensive atopic dermatitis in the form of infantile eczema with cadidiasis of the nappy area. He told Manju Sam to avoid allergens and give the child only breast milk or soya bean milk. He prescribed Ampiclox syrup and Loratidine syrup. He also prescribed Ampiclox cream. He advised Manju Sam to bring Gloria in every second day to check her progress.

Manju Sam ignored Dr Thomas' advice to return and she did not take the child to any other conventional medical practitioner before she died. In her record of interview she said that Gloria's condition had improved.

The evidence indicates that although Thomas Sam was not in India the appellants were in regular telephone contact with each other and Thomas Sam was involved in the decisions with respect to Gloria's wellbeing.

Thomas Sam arrived in India on 5 April 2002. Gloria was still obviously ill with eczema. Thomas Sam suggested that Gloria be examined by Dr Patel an experienced homoeopath who was then 77 years of age. She was first seen by Dr Preetha who assisted Dr Patel and made the following observation:

"There were small eruptions of reddish nature with severe itching and occasionally slight discharge. The child was irritable and had delayed milestones. There was exfoliation of skin, oedematous swelling on legs and the child couldn't bend legs. The child was crying and even slight movements were painful. There was heat sensation in the head. The appetite was good and thirst had increased. It was only fed with breast milk. The child's urine was normal and motion regular. The person who brought the patient also told that the child was given homeopathic medicine, listing Sulphur, Calecarb-30, Thuja-30 (one dose). ... The child was irritable, moaning, sad looking and desired to be carried by someone always."

Dr Patel then saw Gloria. He diagnosed atopic dermatitis and prescribed Lycopodium to be taken for one month. He did not see Gloria again.

On 27 April 2002, the appellants and Gloria returned to Australia. In his record of interview, Thomas Sam said that Gloria's eczema had deteriorated since 6 April 2002 with her having "a bit of peeling of the skin, leaving a red appearance" with the peeling in the "axilla and the folds ... the underarms, loins and groin". Gloria's general health was "not very good" and she was "probably still declining" and "used to cry ... all the time", "was always irritable" and did not "want to eat much". She was malnourished, her development milestones were delayed, she looked tired and had started "developing grey hairs" when her hair used to be "jet black".

In her record of interview Manju Sam stated that, as at 27 April 2002, Gloria had a rash on most of her folds, under her arms and in her joints with the skin looking "very very red in the armpits, around the stomach area, on her legs and behind her knees" and "some times used to bleed". Manju Sam stated that she did not clothe Gloria because, if she removed the clothes, it "sticks to her body it can bleed". Although Manju Sam stated that Gloria's condition had improved in India, she said that the rash got worse two or three days prior to returning to Australia.

Linda Nelson, who gave evidence, saw Gloria on the aeroplane on which she returned to Sydney. She said Gloria's skin was "very red, blotchy, very inflamed." She cried and was "fussy and distressed for pretty much most of that trip." Kirby Nelson said Gloria was "screaming constantly" with a "painful scream." It was apparent that she had a rash over most of her body. Linda Nelson did say that Thomas Sam appeared gentle with the child.

Janet Nuttall was travelling on the plane. She observed Gloria to be distressed and crying with a rash like she "hadn't seen a rash like it before."

When they arrived back in Australia Thomas Sam resumed working and Manju Sam remained at home with Gloria. The child made no apparent improvement and remained in pain and distress. She was ultimately admitted to Sydney Children's Hospital, Randwick on Sunday 5 May 2002. Between 27 April and 5 May 2002 Gloria was not seen by any doctor, homeopath or registered medical practitioner, apart of course from her father.

Thomas Sam said in his record of interview that Gloria's condition appeared to be improving. However, by 3 May 2002 she had developed a red rash in the eye and the next day it appeared to be an ulcer in the cornea. Thomas Sam said he gave Gloria homeopathic medicine, Cineriamaritima for her eye. Thomas Sam said that on the Saturday night he and his wife were "a bit concerned." By Sunday morning the ulcer was spreading. He said at that time he was tired, both Gloria and his wife were sleeping with the consequence that he did not take Gloria to the hospital. Gloria's condition further deteriorated on the Sunday. The appellants decided to take her to the hospital. However, they delayed their trip until Thomas Sam had completed his duties at a church service.

In her record of interview Manju Sam said that Gloria's skin condition was improving upon their return to Australia and she was taking food and solids. She said that she had continued giving Gloria homeopathic treatment. She said that the appellants had not taken Gloria for medical treatment upon their return to Australia "because we were sort of recovering from jet lag and it was very hot in India, we were very tired, very drained." Although they had discussed taking Gloria to a doctor on 30 April 2002 and her eye had become discoloured by 3 May deteriorating further the following day, they did not take her to a doctor until going to the hospital on 5 May 2002.

There was evidence from Maria dos Santos, the downstairs neighbour of the appellants, who said that she did not hear Gloria cry in the period of 27 April 2002 to 5 May 2002. However, this evidence may not be of particular significance. Ms dos Santos worked and was not at home at all times during this period.

Various accounts of Gloria's health were given by the medical staff who observed her at the hospital. I have provided a summary of that evidence later in these reasons [112] to [139] when discussing the appellants' submission that the verdicts cannot be supported by the evidence.

The following grounds of appeal were advanced by Thomas Sam.

Grounds relating to the summing up:

Ground 1: The trial judge erred in failing to direct the jury adequately as to the issue of causation.

Ground 2: The trial judge erred in failing to direct the jury adequately in relation to breach of duty by the appellant.

Ground 3: The trial judge erred in failing to direct the jury properly as to the test to be applied viz the "reasonable person" test.

Ground 4: The trial judge erred in failing to direct the jury that a "reasonable person" included the characteristics of an ordinary person including age, race, culture and background as the accused.

Ground 5: The trial judge erred in permitting the Crown to leave to the jury on the alternative basis of liability of the "reasonable homeopath" so depriving the appellant of a fair chance of acquittal.

Grounds relating to the conduct of the case by counsel:

Ground 6: The conduct of the appellant's case by counsel who failed to test the Crown case so as to deprive the appellant of a fair chance of acquittal.

Ground 7: The conduct of the appellant's case by counsel who failed to advance an affirmative case on behalf of the appellant which was available either during the evidence or in argument.

Ground 8: The conduct of the appellant's case by counsel who failed to cross-examine key medical witnesses.

Ground 9: The conduct of the appellant's case by counsel who failed to object to the admission into evidence of the electronically recorded interview conducted between the police and the appellant the day after the death of Gloria Thomas and answering in excess of 2,000 questions.

Ground 10: The conduct of the appellant's case by counsel who failed to adduce expert evidence on the issues relating to death from Pseudomonas infection of the blood.

Grounds relating to the adequacy of the evidence:

Ground 11: The evidence was such that it was not open to a jury properly instructed to properly convict by reason of the failure of the prosecution to provide sufficient evidence of causation.

Ground 12: The verdict of the jury is unreasonable and cannot be supported.

Ground relating to sentence:

Ground 13: The sentence imposed was too severe.

The following grounds of appeal were advanced by Manju Sam:

Conviction:

Ground 1: The verdict of the jury was unreasonable and not supported by the evidence .

Ground 2: The learned trial judge failed to properly direct the jury with respect to the reasonable parent test direction. The jury ought to have been directed to consider the cultural background of the accused.

Ground 3: Where relevant, the appellant relies upon the grounds and submissions of Mr Sam.

Sentence:

Ground 1: The sentence was manifestly excessive.

Ground 2: His Honour did not give sufficient weight to delay.

Ground 3: His Honour did not give adequate consideration to the extra-curial punishment suffered by the applicant .

Ground 4: His Honour did not give sufficient consideration to the effect of a lengthy sentence on the child, Daniel.

Ground 5: His Honour erred in finding that the failure of Dr Symons to warn the offenders of weight loss was irrelevant. His Honour erred in finding that Nurse Hartnett did.

Ground 6: His Honour erred in finding or having regard to: "I do not accept that any improvement in Gloria's condition avoided the necessity for ongoing medical examination and treatment in India. It was for medical practitioners to assess Gloria's progress and not Manju Sam with homeopathic advice only ."

Ground 7: His Honour erred in finding or having regard to: "Assessing the position as it stood on 13 April 2002, and without engaging in a process of hindsight, I am satisfied that there was a very significant disconnect or gap between the nature of Gloria's condition when seen by Dr Patel, and the treatment and follow up advised by the homeopath on that occasion. The involvement of Dr Patel could provide no comfort to a reasonable parent against the background of Gloria's protracted and extensive eczema. This point is further emphasised by what followed after 13 April 2002. Less than a month later, Gloria was dead."

Ground 8: His Honour erred in finding or having regard to: "There is a notable contrast between the offenders' willingness to obtain conventional medical treatment for Manju Sam in April 2002 because of her pain and vomiting, and the failure to obtain, and follow through, consistent and conventional medical advice and assistance for Gloria in Australia and India."

Ground 9: His Honour erred in finding or having regard to: "the skin condition worsened, notwithstanding that Mrs Sam told the police that the skin condition improved upon returning to Australia. Mrs Sam's account is rejected."

Ground 10: His Honour erred in finding: The intelligence and education of the offenders "operate against the offenders on sentence."

Ground 11: The trial judge ought to have disqualified himself from sentencing the applicant.

Thomas Sam: Ground 11:

The evidence was such that it was not open to a jury properly instructed to properly convict by reason of the failure of the prosecution to provide sufficient evidence of causation.

The evidence indicates that Gloria died from septicaemia. The infection entered her blood stream either through her infected skin or infected eye. The Coroners' report noted the cause of death as direct sepsis (Pseudomonas Aeruginosa) with antecedent causes being the combined effects of chronic eczema and malnutrition.

The medical evidence indicated that a person with a pseudomonas infection involving the blood stream has a 50% chance of dying within 24 hours. Dr Kesson, Head of Infectious Diseases & Microbiology, Children's Hospital, Westmead, gave evidence in which he suggested that "the latest time to commence therapy and prevent her acute death was probably 24 to 48 hours prior to presentation to Sydney Children's Hospital. Dr Kakakios, paediatric immunologist, was of the view "that if Gloria had been brought to hospital a week earlier, that she could - that her life could have been saved."

Dr Williams, senior staff specialist at the Children's Intensive Care Unit, Sydney Children's Hospital Randwick believed that Gloria may have died within 24 hours of the infection entering her blood stream, which it was submitted put the onset of the pseudomonas infection at 1.20 am on 7 May 2007. The appellants emphasised that at the time of her admission to hospital Gloria was not regarded as at risk of death, her condition being "assessed as category 3 non life threatening."

The direction which the trial judge gave and which is now criticised was that "he (Mr Sam) omitted to obtain appropriate medical care for her in what was the critical period of 27 April to 5 May 2007." It was submitted that this period was possibly too wide. It was submitted that the jury should have been directed to the evidence of Dr Williams which allowed for the possibility that it was only after Gloria had been taken to the hospital that her condition deteriorated and became life threatening. Accordingly it was submitted that as a consequence it could not be said that at any period prior to Gloria's admission the appellants were guilty of negligence.

In response to this submission the Crown emphasised that the swab taken from Gloria's eye on her admission contained pseudomonas and that Dr Williams' evidence was that at that time she was already fighting off an infection. The Crown emphasised that the difference between the doctors' evidence was not whether or not Gloria had a pseudomonas infection when she was admitted but whether it was then localised or had become systemic. Dr Williams thought it was localised, Dr Kesson and Dr Kakakios were of the view that it was systemic by that time. Dr Williams was of the view that only in the early hours of 7 May could it have been clearly diagnosed that the infection had become systemic.

However, Dr Williams was of the opinion that the pseudomonas infection was related to the reduced health of Gloria. He said that "I think that her malnutrition made her much more at risk of getting the infection and it made it more at risk of becoming systemic." He was of the opinion that if Gloria had not been so severely malnourished she would have had a better chance of surviving the infection.

Dr Kesson is a specialist in infectious diseases. She was of the opinion that the infection did not enter Gloria's blood stream through the eye but rather the reverse. She thought that Gloria had been extensively infected with pseudomonas on her skin and possibly her lungs and that an underlying Vitamin A deficiency predisposed her to the secondary eye infection. In her opinion Gloria's pseudomonas septicaemia was secondary to a bacterial invasion from chronic pseudomonas aeruginosa infection from her abnormal skin condition and her immune deficient state. Dr Kesson suspected that "severe malnutrition was a severe contributor to her mortality."

Dr Martin a specialist paediatric ophthalmologist generally supported Dr Kesson's view. Dr Martin was of the opinion that once the cornea is compromised it is more prone to infection. He stated that the condition which compromised the cornea and eventually led to its rupture was malnutrition, specifically Vitamin A deficiency. Dr Martin said that keratomalacia is a progressive condition due to a Vitamin A deficiency and could not have occurred in a matter of days.

Dr Martin noted that the appellants saw some redness and discharge in Gloria's eyes on the Friday evening 3 May. He said that he would have expected that corneal changes would have been apparent some days before this. He was of the view that by the time Gloria was admitted to hospital she had quite an advanced case of keratomalacia and it would have been very difficult to treat because "to fix it, this was a critically ill child. To have done anything it would have required to take the child to an operating theatre, general anaesthetic, and this child to my understanding wasn't fit to go into the operating theatre." He was of the opinion that if Gloria had been presented some days earlier the perforation in the left eye may have been prevented.

Dr Kakakios was of the view that Gloria had been infected with pseudomonas aeruginosa through her skin presumably while she was in India. He believed that if Gloria had been brought to a hospital a week earlier her life could have been saved.

Dr Scott, homeopath, also considered that had Gloria been taken to hospital soon after 27 April and been given appropriate nutritional supplementation and antibiotics that would have prevented the development of septicaemia.

The respondent submitted that the appellants were attempting to create a false issue. The Crown case was that the appellants had allowed Gloria to deteriorate to the point where on her admission to hospital she had a pseudomonas infection at least in her eye, or perhaps more extensively, which her malnourished condition had allowed to take hold and lead to her death. The evidence of other doctors, Dr Sugo, the forensic pathologist, and Professor Kaschula was that the infection in Gloria's blood stream was precipitated by protein energy malnutrition which lead to a suppression of her immune system. The result was caused by a lack of protein and vitamins.

The inevitable conclusion from this evidence is that Gloria was suffering an infection some days, possibly weeks, before her admission to hospital. It is true that there were differences between the medical opinions of the doctors who gave evidence as to whether the infection entered her blood stream through her skin or eye but on either view there was no suggestion that she was infected after she came to hospital. Furthermore, the septicaemia was a product of malnutrition which predisposed her to infection and diminished her capacity to withstand the infection once it took hold. Accordingly the Crown submitted that it was inappropriate to concentrate on the bacterial infection without regard to the significant underlying cause which led to Gloria's death. Gloria's malnutrition was gross and she had stopped growing for some months before she died.

In my view the Crown's submission should be accepted. The neglect which the Crown alleged was criminally negligent was not confined to the hours or even limited number of days before her death. The Crown case at the trial which was firmly based in the evidence was that the accused omitted to obtain medical care in the period 27 April 2002 to 5 May 2002 being the time after which the appellants returned from India. The evidence made it entirely inappropriate when considering the possible criminal liability of the parents to separate the last hours of Gloria's life when she became critically ill from the earlier period when her physical condition deteriorated, making her vulnerable to an ultimate critical infection. The evidence of causation was clear. Gloria's condition had been neglected and conventional medicine ignored until her body could no longer resist the infection which led to her death.

Thomas Sam:

Ground 2 The trial judge erred in failing to direct the jury adequately in relation to breach of duty by the appellant

Ground 3 The trial judge erred in failing to direct the jury properly as to the test to be applied, viz the "reasonable person test."

Ground 4 the trial judge erred in failing to direct the jury that a "reasonable person" includes the characteristics of an ordinary person including age, race, culture and background as the accused.

Manju Sam:

These grounds may be considered together. The fundamental challenge to the trial judge's directions made by both appellants was the alleged failure of the trial judge to refer to the ethnic background of the appellants.

The direction which the trial judge gave to the jury in relation to Thomas Sam was as follows:

"The reasonable person, with whose conduct you must compare the conduct of the accused, Thomas Sam, in this case must be assumed to possess the same personal attributes as the accused, being of the same age, and having the same experience (including education and training) and knowledge of the facts which the accused had of the circumstances in which he found himself. The reasonable person is taken to be a reasonable person from the community in the State of New South Wales with the ordinary firmness of character and strength of mind which a reasonable person has. In considering the attributes of the reasonable person, you should disregard the personal beliefs, views or attitudes of the accused.

In this case, the following attributes of the accused may be taken into account for the purpose of applying the reasonable person (parent) test:

(a) the person was born on 21 December 1966, and was 34 years old when the child was born on 18 July 2001;
(b) the child was the person's first child;
(c) the person has the knowledge and experience of the practice of homeopathy and medicine, in India and Australia, as disclosed by the evidence as being possessed by the accused, including:

(i) the person being a trained homeopath with a bachelor's degree in homeopathic medicine and surgery from the Mangalore University in India, a bachelor of science degree from the University of Kerala in India and a masters degree in public heath from the University of Western Sydney;
(ii) the person having practised as a homeopath in India prior to 1995, and practised homeopathy in New South Wales from 1995 to 2002 and taught homeopathy in New South Wales from 1997 until 2002;

(d) the person knew of information (as disclosed in the evidence) which had been given between 18 July 2001 and 5 May 2002 concerning the care, diagnosis and treatment of the child from the following persons:

(i) Nurses Franklin, Robinson, Lee and Harnett at the Earlwood Early Childhood Centre;
(ii) Vipin Goyal (general practitioner, Sydney);
(iii) Vinay Katyal (homeopath, Sydney);
(iv) Brian Symons (paediatrician, Sydney);
(v) Alexander Mohan (Joseph) (Paediatrician, India);
(vi) Vipin Thomas (dermatologist, India);
(vii) Ramanlal Patel (homeopath, India);
(viii) K Oommen George (homeopath, India (sic)) * ;
(ix) Punnoose Sam (homeopath, India).

(e) the person was aware, by direct observation or information otherwise received, of the appearance, condition and behaviour of Gloria between 18 July 2001 and 5 May 2002 to the same extent that the accused was aware of these matters as disclosed by the evidence."

* It is accepted that K Oommen George was residing in the USA at the time of the phone call from Thomas Sam seeking medical advice for Gloria's condition.

The direction in relation to Manju Sam was:

"The test is an objective test, but the reasonable person is taken to possess certain attributes of the accused. The reasonable person with whose conduct you must compare the conduct of the accused, Manju Sam, in this case must be assumed to possess the same personal attributes as the accused, being of the same age, and having the same experience (including education and training) and knowledge of the facts which the accused had of the circumstances in which she found herself. The reasonable person is taken to be a reasonable person from the community in the State of New South Wales with the ordinary firmness of character and strength of mind which a reasonable person has. In considering the attributes of the reasonable person, you should disregard the personal beliefs, views or attitudes of the accused.

In this case, the following attributes of the accused may be taken into account for the purpose of applying the reasonable person (parent) test:

(a) the person was born on 28 May 1972 and was 29 years old when Gloria was born on 18 July 2001;
(b) Gloria was the person's first child;
(c) the person had eczema as a child and as an adult, and the person had conjunctivitis several times, as disclosed in the evidence;
(d) the person had awareness of the widespread practice of homeopathy in India, as disclosed by the evidence as being possessed by the accused, and had received homeopathic treatment (as disclosed by the evidence);
(e) the person had the education and employment experience, as disclosed by the evidence, as being that of the accused, including:

(i) a bachelor's degree in physics from the University of Kerala in India and a postgraduate diploma in computer applications from the Institute of Science and Technology in Kerala, India;
(ii) the person having come to Australia in July 1998 and, some months later, commenced employment as an administrative assistance with HCF in Sydney, where she continued to work until 2001;

(f) the person knew of information (as disclosed in the evidence) which had been given between 18 July 2001 and 5 May 2002 concerning the care, diagnosis and treatment of Gloria from the following persons:

(i) Nurses Franklin, Robinson, Lee and Harnett at the Earlwood Early Childhood Centre;
(ii) Vipin Goyal (general practitioner, Sydney)
(iii) Vinay Katyal (homeopath, Sydney);
(iv) Brian Symons (paediatrician, Sydney);
(v) Alexander Mohan (Joseph) (paediatrician, India);
(vi) Vipin Thomas (dermatologist, India)
(vii) Ramanlal Patel (homeopath, India);
(viii) K Oommen George (homeopath, India (sic)) * ;
(ix) Punnoose Sam (homeopath, India).

* It is accepted that K Oommen George was residing in the USA at the time of the phone call from Thomas Sam seeking medical advice for Gloria's condition.

(g) the person was aware, by direct observation, of the appearance, condition and behaviour of Gloria between 18 July 2001 and 5 May 2002 to the same extent that the accused was aware of these matters as disclosed by the evidence."

A distinction is made between the submissions of Thomas Sam and those of Manju Sam. On behalf of Manju Sam it was submitted that there were cultural factors relevant to her culpability including that she had no medical training, was married to a homeopath who had "an arrogant approach" to what he perceived were the superior benefits of homeopathy compared with conventional medicine and she came from a tradition where her husband made all the major decisions and she tended to defer to him. It was further submitted that she had not been warned by her husband or other doctors she consulted of the dangers of Gloria's condition.

The submission on behalf of Thomas Sam was said to be supported by reference to the remarks of McHugh J in dissent in Masciantonio v R (1995) 183 CLR 58. In that case McHugh J when discussing the issue of provocation suggested that Australia's polyethnicity should be reflected in the standard applied in determining criminal liability. McHugh said at [73]:

"The ordinary person's standard would not become meaningless however if it incorporated the general characteristics of an ordinary person of that same age, race, culture and background as the accused ...without incorporating those characteristics the law (of provocation) is likely to result in discrimination and injustice. In the multicultural society such as Australia the notion of an ordinary person is pure fiction. Worse still, its invocation in cases heard by juries of predominantly Anglo Saxon Celtic origin almost certainly results in the accused being judged by the standard (of self control) attributed to a middle class Australian of Anglo Saxon Celtic heritage, that being the stereotype of the ordinary person with which the jurors are most familiar."

Apart from the fact that McHugh J's remarks were a minority view it is not clear to me that they would be apposite to the content of the standard of care in a case such as the present. It may be that in some circumstances, although I have no view on the matter, that where a mother or father comes from a culture which approaches the nurture of infants in a particular manner different from that expected of a parent who has been brought up in Australia that the difference, which may be described as cultural, may be relevant to the standard of care. However, there was nothing in the evidence at the trial to suggest that because the appellants were born and educated in India, or Thomas Sam was educated as a homeopath, that could justify the expectation which the law imposed on their conduct as being different from that of the ordinary Australian. It may be that Thomas Sam was the dominant person within the relationship and in the circumstances accepted a greater role because of his knowledge of homeopathy. However, those matters were not related to cultural considerations. The position would have been no different if he had been qualified and practised as a registered medical practitioner.

With respect to Manju Sam she is tertiary educated. She has a Bachelor's Degree in Physics and a post-graduate diploma in computing. She worked full time until Gloria was born. Although she did not work after Gloria was born the evidence did not suggest that she was subjugated to her husband's decisions in all matters. There was evidence that when Gloria first developed a rash she asked advice from friends who also had babies. When considering whether or not to immunise Gloria Manju Sam indicated that she, together with her husband, read a lot of the material in relation to the benefits or otherwise of immunisation. She said that they took the decision in relation to immunisation "together."

Manju Sam travelled to India alone and while she was there took the baby to a doctor without Thomas Sam. She did this on the advice of her parents. She said of decisions to seek medical care that "we usually discuss and do things together."

It was put to her that she did not take the baby to the doctor without consulting her parents and husband and the following exchange occurred:

"Yea, and I expressed it to my parents and they shared my concerns, and that's when we together made the decision.

Q. But you didn't do it until you had spoken ...

A. See, I ...

Q: ... to your husband

A. ..., in our culture, where I'm brought up, we don't make decisions independently...

Q. mmm

A. very much

When Gloria had pus coming out of her eyes on Saturday 4 May both the appellants decided together that they would not go to the hospital. Manju Sam denied the decision was her husband's.

Q. Whose, so it was your husband's decision not to go to the hospital then and, that night?

A; It was not his decision. We both said, okay, then we will go in the morning."

To my mind there was nothing in the evidence which would have suggested that a direction framed to reflect the cultural background or education of either appellant was appropriate. Nor did the evidence suggest that the direction given with respect to Manju Sam was other than appropriate.

Ground 5 The trial judge erred in permitting the Crown to leave to the jury on the alternative basis of liability of the "reasonable homeopath" so depriving the appellant of a fair chance of acquittal.

The essence of the submission on behalf of Thomas Sam was that there was no evidence that in administering homeopathic remedies to Gloria, Thomas Sam had gone beyond his role as a parent and "involved himself as a practitioner" However as the Crown submitted this was contrary to the evidence. The evidence of Dr Katyal, Dr Varatharajan and Dr Williams was that Thomas Sam had told them he was treating Gloria. Dr Katyal said that the applicant had already started treating Gloria when he asked him for further advice, which was something the applicant had done with other patients.

Thomas Sam admitted that he treated Gloria with homeopathic medicines before she went to India in February. The inference was available, and there was no evidence to the contrary, that he had himself prescribed the treatments which Gloria was receiving. In his ERISP Thomas Sam described the treatments he had prescribed.

To my mind the evidence was plain that Thomas Sam had treated Gloria from the time she first developed eczema. Although he consulted other doctors and applied other conventional treatments this did not have the consequence that he was not exercising his expertise as a homeopath.

The evidence of the homeopathic doctors who gave evidence at the trial was that homeopathy is a complementary treatment to conventional medicine. However, it was not a substitute for it and it was not appropriate for acute conditions nor where the patients symptoms did not improve but in fact deteriorated. Dr Katyal said that if a patient did not respond to homeopathic treatment within a short period of time they should be referred to a conventional doctor.

To my mind this ground of appeal is without substance.

Grounds relating to the conduct of defence counsel - grounds 6 to 10

These grounds were advanced only by Thomas Sam.

The submission of Thomas Sam was that his counsel was incompetent because she did not cross-examine the doctors on the issue of causation to attempt to establish a positive case as to the possibility that the pseudomonas infection was contracted in hospital.

The submission suffers from the difficulties which I have previously identified. There was no evidence that the infection had in fact been contracted in hospital. To the contrary the evidence overwhelmingly indicated that the child came into the hospital with a pseudomonas infection and the debilitating condition to which she had been reduced had allowed that infection to be present and impaired her capacity to resist it. Rather than being a result of incompetence it was an appropriate tactical decision for counsel not to raise this issue (see TKWJ v The Queen (2002) 212 CLR 124 at [18], [16], [27], [107]-[108]). If the doctors had been cross-examined at any length about Gloria's condition her parlous state of health when she arrived at hospital would have been vividly emphasised.

Thomas Sam also criticised his counsel for not having challenged the admission of his ERISP. However, the basis for this submission was not made plain. I can discern no reason why the ERISP was not properly admitted.

These grounds of appeal fail.

Unreasonable verdict

Both appellants submitted that the verdict was unreasonable and cannot be supported by the evidence. The submissions were lengthy and of necessity canvassed the evidence at the trial.

The appellants emphasised the care which both appellants had given to their daughter. Manju Sam had ceased work to care for the child. There was evidence from a nurse at the early childhood centre that Manju Sam was an attentive mother to whom the baby responded well. Passengers on the aeroplane back from India to Australia gave evidence of the attention which both parents gave to their crying child.

There was also evidence of the apparent care that Manju Sam gave to her child when she was at the hospital. She breastfeed the child during her entire life although the evidence suggests that by the time she came to hospital Manju Sam was not producing breast milk. The child was also provided with solid foods including vegetables and grain foods. When Manju Sam's mother suggested that she change the child's diet by removing eggs and fish to assist with the eczema she took this course.

The appellants emphasised that the child was taken for a number of medical consultations. A number of the consultations resulted in a recommended treatment of the use of sorbelene, hydrocortisone, and bath oil. Manju Sam followed this advice. She took the bath oil to India. The appellants submitted that the evidence was of parents who cared for the child. It was submitted that there was no suggestion that the parents were unwilling participants or dilatory in taking the child to visit the Earlwood early childhood centre. The appellants provided the following list of medical consultations with the child. It included:

25 July 2001 - home visit by nurse;

July/August 2001 - visit to a general practitioner about noisy breathing;

17 August 2001 - Manju Sam took her daughter to the Earlwood early childhood centre;

11 September 2001 - Thomas Sam took his daughter to the childhood centre;

4 October 2001 - Manju Sam took her daughter to the centre;

13 November 2001 - Manju Sam took her daughter to the centre;

11 January 2002 - Manju Sam took the child for an unscheduled consultation with Dr Goyal;

7 February 2002 - Manju Sam took her daughter to the centre;

8 February 2002 - Manju Sam took her daughter to Dr Symons, a paediatrician;

19 February 2002 - the child was again taken to Dr Symons;

25 February 2002 - Manju Sam took her daughter to be examined by Dr Mohan, a paediatrician in the hospital in India. She was referred to Dr Thomas;

25 February 2002 - Manju Sam took her daughter to see Dr Thomas a skin specialist;

On 28 February 2002, 9 March 2002, 20 March 2002, 30 March 2002, 9 April 2002 the child was seen by Dr Punnoose Sam, a homeopath in India;

13 April 2002 the child was examined by Dr Patel, a homeopath in India;

5 May 2002 the child was taken to the Sydney Children's Hospital.

The appellants also contended that the child had been seen by Dr Katyal, another practitioner who had prescribed medication.

The appellants emphasised that the baby's skin condition was waxing and waning. Sometime it would be severe and sometimes more benign. The child was diagnosed with eczema by Dr Goyal in January 2002. Manju Sam had herself experienced eczema. Manju Sam took the child to see the doctor of her own volition and she was not urged by a nurse to do so.

Dr Goyal said that it was one of the most serious rashes he had ever seen. However, the appellant emphasises that he did not warn of any fatal or indeed serious consequences if it continued. He suggested the use of hydrocortisone which is what occurred.

Photographs were taken of the child about 5 days after the consultation with Dr Goyal. When they were shown to Dr Wargon, a paediatric dermatologist who examined the child at the hospital in May he described the condition depicted in the photographs as being fairly common and not particularly serious. It follows that within days of the visit to Dr Goyal the skin condition had improved going from extremely serious to common. It was submitted that in these circumstances it was understandable that a reasonable person would not have seen a need to visit a specialist. It was submitted that it was for this reason that the referral from Dr Goyal to a specialist was not used.

A month after seeing Dr Goyal, Manju Sam took the child to visit the clinic. On their recommendation Manju Sam took the child to a consultation with Dr Symons. She was not obliged to do so. Both the appellants attended the consultation with Dr Symons including a later consultation.

Although it is apparent that the child's condition had continued to improve Dr Symons nevertheless suggested that the baby be seen by a specialist. However, Dr Symons did not suggest that this was urgent and made an appointment with a paediatric dermatologist for 4 April 2002.

Although the child was referred to Dr Wargon due to her skin condition it was apparent that she was already significantly under weight. Dr Symons said that the lack of weight did not enter his thinking as a major factor. He accepted that he was wrong. In fact he agreed that it was a significant issue that the child's weight had dropped so significantly. He said that it did not enter his head that the child's immune system may be compromised by the loss of weight. Dr Symons held the view that if the eczema could be resolved the weight issue would also be removed.

The appellants submitted that Dr Symons as well as the practitioners who were consulted in India should have been more pro-active. It was submitted that without advice from the doctors that the child's weight drop was a significant problem the appellants could not have been expected to have been concerned about it.

Dr Kesson was called by the Crown to give evidence at the trial. She reviewed the medical evidence and expressed the view that by 19 February 2002 the weight loss which the child was experiencing was an "extremely serious situation in a child of this age." It was submitted that if the appellants had been told that their child was in an extremely serious situation they would have taken the child to hospital.

Although Dr Symons made an appointment for the child to see a dermatologist the appellants emphasised that he did not advise that the child was in an "extremely serious situation." Dr Symons never suggested to the appellants that any complications might arise if they failed to consult the dermatologist. As it happened the appellants did not keep the appointment with a dermatologist but did take the child to see a dermatologist in India. The consultation in India occurred in February which was before the appointment which had been made for the child to see a dermatologist in Sydney.

The appellants submitted that all of the evidence indicated that the appellants were entitled to believe that the child's weight loss was associated with the eczema. Accordingly, once the eczema could be effectively treated the appellants were entitled to expect that the child's weight would improve. The reality was otherwise. As it happened the child had a serious malnutrition problem that no-one had observed. Because, so it was submitted, the specialist and homeopaths did not advise about the child's malnutrition problems it was submitted that the appellants could not be held criminally liable for making the same mistake. No-one knew, least of all the parents, that important vitamins and minerals were not being retained by the child.

Dr Symons was informed by Dr Stone from the Sydney Children's Hospital on 6 May 2002 that the child had a serious malnutrition problem. Dr Symons then looked in his file and noted that he had recorded a weight loss. It was submitted that Dr Symons' evidence could be criticised for having missed the seriousness of the weight loss. He admitted that the date which he had placed in his diary being the date on which he had spoken with Manju Sam when she informed him that she would miss the specialist appointment because she was going to India was mistaken. His note was that he had rung the appellants but the evidence which he gave was that they had rung him.

The appellants emphasised that Dr Symons had in fact made a mistake. Other paediatricians would have been alarmed and taken immediate steps to deal with the weight problem.

It was submitted that Manju Sam was having difficulty coping as a first time mother in Sydney without the support of her own family. The husband was working. In accordance with Indian tradition she would normally have spent the first few months of her motherhood with her own mother where she would have received support. Manju Sam emphasised that she was not able to return to India as she and Thomas Sam were originally in Australia on bridging visas. They were later granted permanent residency.

The appellants emphasised that by the time Manju Sam took the child to India Gloria's condition had improved. As it happened on 25 February 2002 Manju Sam took the child to a paediatrician, Dr Moyan, at Century Hospital in Kerala. The specialist did not suggest that any urgent attention was required. Dr Moyan said that when the child was weighed, although she was below the expected weight, her weight was acceptable. The paediatrician did not warn Manju Sam about the weight of the child or indeed any other problems. He did not recommend any treatment in relation to her weight. It was submitted that the error that was made by Dr Symons was also made by Dr Moyan but it cannot be visited upon the appellants.

The child was referred to another Western trained specialist, a dermatologist Dr Thomas. Dr Moyan said he would not have objected to homeopaths seeing the baby as an alternative to seeing Dr Thomas. Dr Thomas who worked in the hospital at Kerala examined the child but did not suggest that urgent attention was required. He prescribed some cream for the nappy rash. He focused on the skin condition and was concerned to treat the extensive eczema. He did not think that the child was in such a condition that she needed to be referred to the casualty department of a hospital.

It was submitted that Dr Thomas' failure to diagnose the seriousness of the child's condition was an error similar to that made by Dr Symons and Dr Moyan.

Manju Sam used the cream prescribed by Dr Thomas and within a week the nappy rash had disappeared. The evidence which the appellants emphasised was that during the child's stay in India her eczema condition continued to improve.

Manju Sam spoke regularly to her husband in Australia. The first consultation after the hospital was with Mr Thomas Sam's brother Dr Punnoose Sam. He is also a homeopath. He examined the child on 28 February only a few days after the hospital consultations. He saw the child on 5 occasions between 28 February and 9 April 2002.

The prosecution was critical of the work of Dr Punnoose Sam in the course of submissions at the trial. The treatment given by Dr Punnoose Sam was described as "woefully inadequate." It was submitted that there is nothing in the evidence which would suggest that he appreciated the significance of the child's loss of weight.

After Thomas Sam arrived in India he decided to take Gloria from the care of his brother. He took her to see Dr Patel about 5 days after his arrival in India. It was submitted that as a consequence Manju Sam was left in a position where she had no real choice but to defer to her homeopath husband who decided that the child should be seen by Dr Patel. It was submitted that this was not a case of nothing being done. It was submitted that Dr Punnoose Sam should be understood to be an expert in atopic dermatitis which was the condition from which the child was suffering. Although he had been practising for 5 years his dissertation in the course of his studies had been on the subject of atopic dermatitis the very condition from which the child was suffering.

After Thomas Sam arrived in India the child was taken to see Dr Patel. The first consultation was on 13 April. He made various diagnoses and prescribed lycopodium. He did not raise an issue with malnutrition. He suggested a further consultation in one month's time. However, the child died in Australia before that time had expired. It was submitted that in these circumstances a reasonable person was entitled to have a positive belief that nothing of significance, certainly nothing that was life threatening, would be likely to happen in the following month.

The appellants emphasised that homeopathy is a widely practised and accepted medical discipline in India. It is recognised in the United Kingdom and is available on the National Health Service. There was evidence that a child with eczema is commonly treated by homeopaths. India has homeopathic medical hospitals. Because Manju Sam was married to a homeopath it was submitted that she was entitled reasonably to rely upon the guidance of her husband, Dr Patel and Dr Punnoose Sam.

The evidence indicated that the eczema condition of the child continued to wax and wane when she was in India with her mother and later her father. Although the Crown case emphasised the failure of the appellants to take the child to hospital upon their return to Australia the appellants submitted that they did not reasonably have a reason to be worried about her skin condition at that time. It was submitted that the evidence was that it did not look substantially worse than it had at times in the past. It was submitted because the child cried as a result of nappy rash it was reasonable for the appellants to conclude that although the child was distressed and crying upon returning from India this did not necessarily mean that there was a serious problem. It was submitted that it could not be proven that any failure by the appellants resulted in Gloria's death and that there was no negligence let alone gross criminal negligence deserving of punishment on their part.

It was submitted that there was no evidence that the child was distressed or in great pain between 27 April and 5 May. Indeed the evidence was to the contrary. It was submitted this was evident from the fact that Manju Sam did not see the necessity to take the child to see anyone. Secondly a neighbour, Ms Dos Santos who lived downstairs did not give evidence of having heard the child crying. It was further submitted that there was evidence that Manju Sam knew how to calm her baby.

Although it was apparent that the child was unwell with eczema the appellants emphasised that her condition varied. Of particular significance was the fact that not one person had warned the appellants of any danger in the future or of any suggestion that her skin condition may lead to her death. Although the child's skin condition was poor it was submitted that it was not substantially worse that it had been in the past when doctors had advised conventional treatment processes.

It was submitted that Manju Sam and Thomas Sam were both persons of excellent character. It was submitted that they were devoted to the child and would not have taken a course of action which could possibly have led to her death. When Manju Sam was asked why she had not taken the child to hospital earlier she responded:

"She was a healthy baby and we have seen the rashes, and I'm not thinking at that time that she is going to die or anything, so I, I don't think in that way. So yeah, I took her to the hospital, I was concerned ... not in the sense that she is dying or anything."

It was emphasised that ultimately the child was taken to the hospital due to concerns over her eye. She was not taken because of any concern about her skin condition or weight. At the time Manju Sam believed the child was suffering from conjunctivitis which was not itself an urgent problem. Dr Cunningham at the hospital initially came to the same conclusion. The evidence was that the child had been given eye drops and that accordingly it could not be concluded that the appellants had abrogated their responsibility for the child's well being.

As it happened the child was not suffering from conjunctivitis. Rather she had a rare problem that only a skilled professional person could deduce. Although there was evidence that at one point in the hospital the child was screaming there was also evidence that the baby soon slept peacefully in her mother's arms.

Counsel for Manju Sam sought to differentiate her position from that of Thomas Sam. Counsel emphasised the evidence from Dr Katyel that Thomas Sam had said to him "I'm not getting an appointment from a skin specialist and I'm going to take her to India ... for treatment."

Manju Sam was not present during this conversation. When she took the child to the conventional specialist in India she spoke to her husband by phone about the matter. She did not refuse conventional specialist assistance. However, once Thomas Sam arrived in India the treatment of the child was confined to homeopathy. It was submitted that there was no reason for Manju Sam to be overly concerned. The two conventional specialists whom she had consulted at the Indian hospital had not expressed any urgency or serious concern.

In summary it was submitted that Manju Sam had taken the child to visit a number of practitioners both homeopaths and conventional medical practitioners. She had never been informed of any impending danger and had no reason to believe that the child's condition had deteriorated to the point where her life was in danger. She was married to a homeopath who believed that his vocation offered superior benefits to that of conventional medicine. It was submitted that Manju Sam would have deferred to her husband's views in the matter of the child's medical condition. This assertion was based on Thomas Sam's arrogant attitude, her lack of medical training and her dependence on her husband. When she observed the child to develop a problem with her eye, it was submitted, it was reasonable for her to assume that it was conjunctivitis which was not a life threatening condition.

It was further submitted that Manju Sam was, as any mother would be, greatly distressed by her child's illness. It had weakened her resilience and there was evidence that she was likely to have been depressed by the time the child entered hospital. For this reason it was submitted that her thinking was blunted. Accordingly it was submitted that Manju Sam was not guilty of a crime.

The essential submission in the Crown case was that the appellants were criminally negligent in not taking effective measures to prevent the child's condition deteriorating to the point which it had when she was admitted to hospital on 5 May 2002. At that time, the Crown emphasised, the child was severely malnourished, her skin and hair had lost pigment and her hair was falling out. The evidence indicated that the upper layer of skin had completely eroded over most of her body. Her left eye was discoloured and oozing pus. She exhibited signs of being in considerable pain. She died within 2 days of being admitted to hospital.

In response to the submission that there was nothing seriously wrong with Gloria at the time of her admission, with the appellants emphasising that the medical staff at the hospital did not regard Gloria's condition to be life threatening and that the child was not placed in intensive care for a full day, the Crown said there were two difficulties. First, it was submitted that the appellants' submission is based on a premise that it was not unreasonable to delay treatment until the baby's condition had reached a life threatening stage. The unstated premise was said to be that provided Gloria's condition was not life threatening it was not unreasonable to allow it to continue. The Crown submitted that this approach should be contrasted with what the sentencing judge described as the approach that any reasonable parent would adopt:

"The top priority was to ensure thorough and competent medical attention to Gloria, to ensure that she resumed her growth and development."

The Crown submitted that rather than do all they could to ensure that Gloria thrived and developed the appellants appeared to operate on the basis that if her condition was not life threatening it could be left untreated.

It was submitted that the contention by the appellants that a classification of category 3 when Gloria was admitted to hospital means the situation was not urgent is not correct. The Crown emphasised that the evidence was that category 1 applies to those children who are not breathing, that are actually in arrest. Category 2 applies to children who are having seizures or have severe respiratory illness and are close to arrest. Although Gloria was in neither category, she was placed in category 3 which applies to patients who need to be seen by a doctor within 30 minutes.

The Crown emphasised that although Gloria was not classified as category 1 or 2, all the medical evidence established that the doctors were struck by the severity of her condition, and if they were not immediately aware that she was about to die, it was only because they had never seen a child in such an extreme state before. The triage nurse who made the category 3 classification said she not only regarded Gloria's condition as urgent she thought it shocking.

Nurse Brogan was the first person to see Gloria in the emergency department at 12.01 on 5 May. She said the baby was distressed, was crying but not exhibiting a normal baby cry. She had a skin condition covering almost her whole body and "quite a purulent discharge" from both eyes. She said that her initial observation was:

"I was quite shocked and I wanted her to be seen quickly."

Nine minutes later the child was examined by Dr Cunningham, the paediatric emergency department registrar. Dr Cunningham's observations were that the baby had "abnormal skin colour and abnormal hair." She looked Caucasian with sparse blond hair. She had large patches of excoriated raw skin that looked "angry, red and moist" with lesions at the edges of these large red raw patches. She had fissuring around her anus. The skin would have been in that condition for days at least or possibly longer.

By the time Gloria arrived at hospital both her eyes were infected with the left eye exuding yellow pus. The left eye was observed to be "very cloudy" the cornea seemed "slightly loose." Dr Cunningham was so worried about the eye that she called an eye specialist to see Gloria in the emergency department. Dr Cunningham asked 3 specialists to examine her, a dermatologist, an ophthalmologist and a paediatrician. It was unusual for this number of doctors to examine the child in the emergency department. Dr Cunningham said that this course was taken because of the severity of Gloria's condition.

Dr Cunningham also observed that the child was in "severe pain". This caused Dr Cunningham to prefer to give her "strong intravenous morphine" but her skin condition made it difficult to find an intravenous line so oral morphine was administered. This was done "almost immediately" to afford Gloria some pain relief.

Dr Cunningham took two Polaroid photographs of the child. These were tendered in evidence. They indicate a child with very serious and obviously painful eruptions on the surface of her skin. Dr Cunningham said she had never seen a case of a skin condition of such severity. She said "I can vividly recall where she was in the Department. I can remember, I think, 6 hours that I was involved very clearly. I think that was because I felt she was in a lot of pain and had been suffering and that's something that doesn't sit well with any paediatrician."

Ultimately it was possible to insert an intravenous line into Gloria. She was given fluids intravenously because Dr Cunningham felt that she would not be able to take fluids orally.

Dr O'Meara, head of the emergency department assisted Dr Cunningham. He gave evidence that it "was immediately obvious" that Gloria was suffering from severe skin problems and severe malnutrition. She seemed quite small overall, "extremely underweight and very little fat" and "very poor" muscle development. Her skin condition was such that they could not find a vein and blood samples had to be taken arterially. Dr O'Meara formed the view that the child's malnutrition was severe and long standing because although poor nutrition initially affects weight it will affect the rate of growth which will ultimately decline or stop. Dr O'Meara said that the body will tend to preserve head and brain growth until very late and when brain growth is effected then the condition is long standing. In Gloria's case her weight, length and head circumference reading were all very low. Dr O'Meara's diagnosis was that Gloria was suffering from severe malnutrition with an associated rash and eye disease.

Gloria was seen by two dermatologists, Dr Wargon and Dr Lee. Dr Lee saw her at 3 pm three hours after admission. She said that the overwhelming impression was that Gloria was "incredibly sick and had this massive eroded rash which I had never seen anything like it in my life and that sort of took my attention." She said that she was "very small, below weight" and "obviously severely malnourished." Her dark skin had become pale and her hair was white. She was limp and listless. She was sucking on her mother's breast but the breast was small and lifeless and Dr Lee did not believe there was any milk in it.

Dr Lee found that the top surface of the skin, the epidermis, had "completely eroded away and there was no skin remaining" on her torso, groin and armpit. She believed that this was obviously painful and every time Gloria moved she was obviously "very distressed." Dr Lee doubted that long standing eczema could have caused Gloria's condition. She believed it was more likely that it was malnutrition and skin deficiency which had led to the erosion of skin in the area of Gloria's groin.

Dr Lee conducted blood tests. She said they revealed a deficiency in a wide range of vitamins and minerals including zinc and although she had never seen the condition before she was aware from text books that the condition where the upper layer of the skin is completely eroded is "Kwashiokor". She says it arises from severe protein and zinc deficiency. Dr Lee conceded that she was not expert on malnutrition but was of the opinion that for the child to have degenerated to the position in which she was found she must have suffered from at least a couple of months of malnutrition and zinc deficiency. Dr Lee said she had never seen a skin condition so severe before or since.

Dr Wargon a paediatric dermatologist saw the baby at 5.30 pm, 5 hours after her admission. She said she kept her examination "fairly fast" because the child was in "extreme pain." She said the baby was very unwell and distressed. She described her as very small, having hair like pure wool. Her eye looked cloudy. Dr Wargon said that the most traumatic of what she saw was that the upper layer of the baby's skin, the epidermis had completely disappeared over extensive parts of her body. She was not sure but believed that the process of erosion of the skin would have occurred fairly slowly probably over a month or months with minor erosions ultimately turning into significant areas of erosion. Like Dr Lee she said that the eroded rash was unconnected to the eczema. She was of the opinion that the severity of the child's skin condition at the hospital may not have been related to the atopic dermatitis which she was previously diagnosed as suffering. She believed the erosions on the skin were caused by protein deficiency or zinc deficiency or both. She believed that the weight loss was not associated with eczema alone.

Dr Wargon's evidence was that Gloria's eczema, had it been treated properly initially, could have been substantially cured within 24 to 48 hours. She said that with inflamed eczema an overnight stay in hospital with appropriate antibiotics and topical steroids and bandages would lead to the child's skin being completely healed over a 24 to 48 period. Dr Wargon said she could not express an opinion on the nutritional drain that severe eczema might present because "it's not something I've thought about because it's such a responsive condition normally that we don't challenge children in that way, but clearly to have intact skin is very important for the health of the child."

Dr Kleiner was the senior paediatrician saw Gloria on 5 May 2002 in the emergency ward. He said she was "obviously" quite sick. She was little, weighing only 5.4 kilograms. She had weighed 6.3 kilograms six months earlier so the doctor said that the weight loss was "a major concern." He also said that Gloria had "very very severe eczema." Dr Kleiner said he had never seen such a severe case, nor such a severe case of malnutrition in a child of this age. He also described Gloria as being in a great deal of pain and had "very very low" sodium levels.

The ophthalmologist, Dr Chong, saw Gloria at 7 pm on 5 May, seven hours after her admission. He found that the cornea of the left eye was very thin to the point of almost perforating. It was cloudy and there was a yellow discharge. The right eye was mostly clear with redness of the conjuctiva and an ulcer in the cornea. When he saw her 24 hours later the left eye had perforated but the right eye had remained stable.

Dr Chong explained that Keratomalacia is a thinning of the cornea where the cornea eventually melts away. In the early stages there would be dryness of the surface of the eye, then an ulcer which deepens and spreads into a perforation. The process would take a number of days or weeks to occur. Dr Chong explained that Keratomalacia can arise from a number of causes but in Gloria's case it was from Vitamin A deficiency. Dr Chong had not seen such a case previously.

Dr Chong called in Dr Kennedy, a specialist paediatric ophthalmologist. By the time he saw Gloria on 6 May the condition of the left eye had deteriorated significantly. He identified an acute infective process caused by a lack of Vitamin A. He was of the opinion that given Gloria's underlying Vitamin A deficiency the infection in the left eye could have developed very quickly once the infection came into the eye, probably within a matter of days.

Dr Martin, another specialist paediatric ophthalmologist, did not examine Gloria but on reviewing the above material confirmed Dr Chong's and Dr Kennedy's diagnosis of Keratomalacia due to Vitamin A deficiency.

Dr Stone, a paediatrician, saw Gloria on the morning of 6 May. She said that she had never seen such a severe state of malnutrition before or since including her time at the Royal Darwin Hospital where she had treated many infants suffering from malnutrition.

Dr Williams, senior staff specialist in the intensive care unit, also saw Gloria on the morning of 6 May 2002. He described her as being pale, thin, with thin hair, cracked nails and slightly swollen extremities. There was a patch on her left eye and most of her body was covered with bandages but he could see on the skin that was exposed that there were wide spread ulcerated areas, some of which had been present for so long the scarring had occurred to thicken the skin.

Notwithstanding the medical response to Gloria's condition she continued to deteriorate and died at 1.20 am on 8 May 2002.

Dr Williams was of the opinion that Gloria died when her condition deteriorated because of the developing septicaemia. Tests indicated that the infection was in her blood stream by 7 May and had been in her eye on 5 May when she was admitted. A blood sample confirmed pseudomonas which Dr Williams described as "rapidly lethal." In Dr Williams' opinion the pseudomonas infection in Gloria's case was more related to her reduced health that allowed the pseudomonas to develop in a place where it would not normally be. Its presence in Gloria's eye was related to the inflammation in the eye and the reduced nutritional state which she was in. Dr Williams was of the opinion that the infection of the eye was a "more virulent" path for the organism to make its way into the blood steam although it was difficult to be definitive about whether it entered by that route or through the eroded skin surface.

Dr Williams was of the view that the presence of elevated white blood cells in Gloria's blood on admission and the presence of immature white blood cells indicated that an infection was present in her body but not yet in her blood steam. The baby apparently had normal blood lactic acid levels which indicated that the infection was local rather than systemic. However, on the morning of 7 May the baby's condition changed which was "clearly" evidence that the infection had become invasive. The drop in the white cell count, lucopenia, was a "very abnormal event, even in bacterial infections." Dr Williams said he spent his life treating bacterial infections in the blood stream. He said that the fall of neutrophils (a type of white blood cell) from 15,000 to 100 is a "very unusual circumstance in the cause of a bacterial infection". He said that a fall to such an "amazingly low level", something which he had rarely, if ever, seen, was due to the presence of an exhausting infection in a malnourished person.

Dr Williams considered that Gloria's skin condition was long standing because sections of her skin had been replaced by thick bacterial psydomembrane with scattered fungi and spores. He also noted the abnormal condition of her nails which "were raw" and "cracked" which he believed had been their condition for some time. Dr Williams also noted that Gloria's malnutrition was long standing. He was of the opinion that it put her at risk of getting an infection and, having become infected, it also put her at risk of the infection becoming systemic. He said there was "no question" that had she not been so severely malnourished she would have had a better chance of surviving such an infection.

Dr Williams' opinion as to the cause of death was confirmed by the forensic pathologist Dr Sugo. Dr Sugo found that Gloria's body was that of a "severely growth restricted child". The skin over her entire body was largely covered in a red rash showing signs of severe infection. There were large areas where the surface layer was "completely missing" and instead there was a coating of bacterial fungi and spores not only on the surface but going into a deeper layer towards the fat. The non-ulcerated skin was pale, thin and showed slight variation in pigmentation. The skin layer had developed abnormally and the cells producing pigment were damaged. There was patchy hair loss and the residual hair was wispy and pale. The left eye was perforated. The right eye showed significant infection and incipient perforation.

Most of Gloria's organs were abnormal. Her lungs and liver were "grossly abnormal." Her liver was large and fatty, indicative of the severity of the malnutrition. The thymus, normally a large organ in young children, was so small it was difficult to identify. The lymph glands were also small and abnormal. These two tissues normally play a significant role in immune function. Her heart, brain, kidneys, spleen were also significantly below normal. A normal heart in a girl of this age would weight about 41 grams whereas Gloria's heart weighted 24 grams. A normal brain would weigh 810 grams but Gloria's weigh 584 grams. The size of her kidneys and spleen were also significantly less than would normally be expected. She had a loss of bone density. Dr Sugo said she had never conducted an autopsy on a child in such a condition before or since.

Dr Sugo said she went to "great lengths" to find any abnormality that could have accounted for Gloria's condition but could find none. Dr Sugo when cross-examined made clear that it was not a matter of the amount or quantity of food which was provided for Gloria but rather whether the food was provided in the right amount and the right balance to meet the body's needs. She was of the opinion that because the records established that Gloria's growth had stopped being normal after 4 months, the inescapable inference was that the appellants had persisted in feeding her inadequate food for about 5 months even though they knew that she was not gaining weight and not achieving her developmental milestones.

Dr Kesson who is an expert in paediatric infectious diseases was of the opinion that the infection which led to Gloria's death was not a result of the eye but her eye infection developed secondary to bacterial invasion through her abnormal skin. In Dr Kesson's opinion the latest time to have commenced treatment and prevent death was probably 24 to 48 hours before her presentation at hospital. A complicating factor was Gloria's "very severe malnutrition." Dr Kesson had never seen a child so malnourished. She said that she found the close up picture of the rash on Gloria "very disturbing" and "not like anything I had ever seen before."

Dr Kakakios, paediatric immunologist, was of the opinion that Gloria had suffered from severe atopic eczema which became infected with pseudomonas aeruginosa while she was in India. Dr Kakakios was of the opinion that the eczema had been grossly under treated for many months and had become infected with pseudomonas and probably several other organisms. Dr Kakakios believed at the late stage that Gloria was taken to hospital she could not have been saved as she was so unwell. Her skin was infected, she was "pulling pus" from her eye and that pseudomonas was in her blood stream. Dr Kakakios believed that if Gloria had been taken to hospital one week earlier her life could have been saved. In the diagnosis of the atopic eczema Dr Kakakios was at odds with Dr Wargon and Dr Lee who said that the skin condition they saw was Kwashiorkor and not atopic eczema. Dr Kakakios was alone in her diagnosis of severe atopic dermatitis that had become infected.

As I have previously indicated the Crown case focused particularly on the appellant's conduct between 27 April to 5 May. It was submitted that the evidence of Gloria's prolonged malnutrition suggested that her condition had been allowed to deteriorate until it reached the state of severe problems by 27 April 2002. The Crown case was that Gloria's condition had been allowed to deteriorate even further over the next 8 days until, as events proved, her condition was extreme and irreversible. The Crown emphasised that even on the appellants' own accounts, when they discovered the redness in Gloria's eye on Friday 3 May they delayed taking the baby to the hospital until midday on Sunday 5 May because they did not think that it was serious.

I have given anxious consideration to this ground of appeal. There is, as the appellants emphasised, evidence of the care and concern which both parents at times displayed for the child. This was not a case of complete abandonment of responsibility for the child's welfare leading to death. No doubt the appellants, particularly Thomas Sam believed that homeopathic treatment was appropriate and would ultimately be effective. The evidence indicated that the child's physical symptoms would vary, improving on occasions but then later deteriorating. Yet throughout the child failed to meet developmental milestones and by the time of her death was grossly undernourished.

The Crown case concentred on the period associated with the return of the family from India and the failure to take Gloria at an earlier time for treatment at a hospital or by registered medical practitioners. Even when confined to a reading of the transcript of the various witnesses the evidence of an extraordinary refusal to recognise and respond to the child's obvious ill health is confronting. The description by witnesses of the child's condition on the aeroplane from India presents a picture of a child in need of immediate and appropriate medical treatment. That picture is dramatically confirmed by the evidence of the doctors' observations when the child was finally taken to a hospital. And if not entirely persuaded by the witnesses of the extraordinary negligence of the appellants the photographs of the child's body upon admission reinforce the availability of the jury's conclusion. It is true that the appellants were never told that Gloria was so ill that she may die. However her need for medical care was obvious.

In the present case the jury were required to consider the evidence of the care which the appellants had afforded to the child. She was taken to both conventional doctors and given homeopathic treatment. However, they were required to assess this evidence along with the evidence of neglect to which I have referred.

There is nothing to suggest that having been appropriately instructed they did not carry out the task required of them. It is true as was emphasised on behalf of Manju Sam that she was stressed by her child's condition which as the trial judge found may have blunted her reaction. However, the transcript indicates that all these matters were ably placed before the jury which under our system of trial was charged with the responsibility of determining whether the appellants' failure to respond was so blameworthy as to constitute the crime of manslaughter.

This was not a case such as R v Taktak (1988) 14 NSWLR 226 which turned upon ignorance by the accused of the perilous medical situation of the deceased. In the present case the suffering of the child must have been obvious to anyone observing her and as her condition deteriorated the imperative of obtaining suitable treatment increased to the point where the child should have been taken to hospital following the appellants returning to Sydney which, the evidence indicates, would have allowed her life to be saved.

Although a judgment that a parent is criminally responsible for the death of a child could never be made lightly - it is difficult to imagine a more damning finding - I am not persuaded that the verdict was unreasonable or not supported by the evidence.

Sentence

Thomas Sam was sentenced to a non-parole period of 6 years imprisonment with a balance of term of 2 years. Manju Sam was sentenced to a non-parole period of 4 years with a balance of term of 1 year and 4 months. The maximum penalty for manslaughter is 25 years imprisonment. There is no standard non-parole period.

The sentencing judge comprehensively considered the circumstance of the offence and carefully analysed the evidence relating to the appellants' failure to discharge their duty of care to Gloria. His Honour was unable in some respects to accept the account Thomas Sam gave in his record of interview of the care given to Gloria. His Honour made the following findings which are relevant to both Thomas Sam and Manju Sam:

"Implicit in the verdicts of the jury is a finding, to the criminal standard, that the Offenders fell far short of the standard of care of Gloria which a reasonable person would have exercised in the circumstances, such as to constitute gross criminal negligence.

The Crown submitted on sentence that these were objectively grave crimes of manslaughter, with the offence of Thomas Sam being more serious than that of his wife. The offences did not involve an isolated act or omission, but rather a prolonged, sustained and deliberate decision by each Offender, individually and jointly, not to seek proper medical attention for Gloria over a very substantial period of time. It was submitted that the Offenders' continuing course of omission resulted in their infant daughter suffering what must have been considerable pain and discomfort for most of the final five months of her life. The Crown submitted that the Offenders' omissions led to Gloria not only enduring a most extreme form of infected eczema, and a cessation of her developmental milestones, but also severe malnutrition which took time to develop. These omissions, the Crown contended, led finally to what must have been a particularly painful bilateral, and ultimately fatal eye infection.

It was submitted for the Offenders that they were caring parents who had taken steps to obtain assistance for Gloria from both medical and homeopathic sources. It was submitted that the Offenders were unaware of the full medical ramifications of Gloria's condition and that this served to explain their delay in taking her to hospital in May 2002. It was said that this was a case of misguided conduct by the Offenders, and not an approach of not caring at all for Gloria's welfare.

I must keep in mind that the offence of manslaughter by criminal negligence involves an objective test, focusing upon the response of a reasonable person to the circumstances. Nevertheless, it is relevant on sentence to have regard to any explanation or explanations for the omission by the Offenders to seek medical assistance for their daughter.

I am satisfied that this is a most serious case of manslaughter by criminal negligence. I am satisfied that Gloria's condition, certainly by 27 April 2002, was clearly serious and demanded proper medical treatment and that this was obvious to any reasonable parent. This is not a case of a child suffering from a serious condition which was disguised in some way. Gloria's body had been racked by eczema for a considerable period of time with associated pain and discomfort.

I accept that Gloria was subjected to significant pain over an extended period of time, and that the omission of the Offenders to seek proper assistance for her may be characterised accurately as cruelty. Gloria suffered helplessly and unnecessarily while suffering from a condition that was treatable.

I accept the Crown submission that the Offenders preferred homeopathic measures to conventional medical treatment for Gloria. I am satisfied that Thomas Sa m displayed (and continued to display) an arrogant approach to what he perceived to be the superior benefits of homeopathy compared with conventional medicine. I am satisfied that Thomas Sam's approach, in this respect, operated upon the attitude of Manju Sam, who was inclined to defer to her husband on this issue.

I am satisfied that the aspects observed by Mr Spiers impacted upon Thomas Sam's approach to Gloria's condition, and that Manju Sam acquiesced in that approach. These factors shed light upon the gross failings of the Offenders to respond in a timely fashion, or at all, to Gloria's serious condition. Gloria was totally dependent upon her parents complying with their clear duty of care for her, and each Offender fell profoundly short of their parental obligations to their infant daughter.

I accept that this protracted process itself, served to blunt Manju Sam, to some extent, to Gloria's needs.

For the purpose of sentence, it is appropriate to characterise the case of Thomas Sam as a most serious offence of manslaughter, applying the "reasonable parent" test. He was a parent, who also happened to be a homeopath, and thus possessed the advantage of training and knowledge flowing from that qualification. This aspect serves to aggravate the seriousness of his offence by reference to the "reasonable parent " test.

I should, nevertheless, make findings with respect to the Crown's "reasonable homeopath" case. The only constant homeopath or medical practitioner in Gloria's life between October 2001 and May 2002 was Thomas Sam. As outlined earlier, various medical practitioners were consulted along the way, but there was no follow through. Nor was there consistent homeopathic treatment provided to Gloria throughout this period by any person, other than by Thomas Sam.

By the time one comes to the critical period between 27 April and 5 May 2002, it may be observed, somewhat starkly, that either Thomas Sam was treating Gloria or no one was. Although Thomas Sam sought, in his police interview, to distance himself from regular observations of Gloria in this period because of the demands of his work, I am satisfied that he had regular opportunities to observe Gloria, and to form a view concerning treatment which ought be given. The Offenders had in their possession a range of medical and homeopathic treatments, which had been accumulated from different sources.

I am satisfied beyond reasonable doubt that Thomas Sam was treating Gloria in the period 27 April to 5 May 2002, so that a patient-homeopath relationship existed between them at that time. This treatment was cursory, but it was treatment nevertheless. The fact that he was utilising substances obtained from different sources does not mean that he was not treating Gloria at that time. However, such treatment as he provided was grossly inadequate.

The universal view of homeopaths who gave evidence at the trial (Dr Scott, Ms Cresswell and Mr Katyal), was that homeopathic treatment could be tried for a period but, if there was no improvement, medical assessment was necessary. Each witness emphasised that homeopathy complemented conventional medicine, and was not intended to be a substitute for the treatment of conditions which called for conventional medical assessment and treatment. This was the professional standard which applied to Thomas Sam in Australia, a standard which he clearly breached in a grave respect. On any reasonable view, the time when homeopathy had been tried without success, and that consistent conventional medical treatment was required, was the visit to Dr Goyal on 11 January 2002. It was overwhelmingly clear that homeopathy would not suffice for the state of affairs which was apparent by 27 April 2002.

Accordingly, I am satisfied that the sentencing of Thomas Sam should be approached upon the basis that he is culpable with respect to both the "reasonable parent" test and the "reasonable homeopath" test.

I accept that Thomas Sam's offence is objectively greater than Manju Sam's offence, given his dominant role and her reliance upon his homeopathic knowledge.

That said, Manju Sam was the child's mother and was constantly in the presence of the child in the nine-day period up to 5 May 2002. She had ample opportunity to take Gloria to a medical practitioner or a hospital in that period, and there was no impediment to that course of action. Her explanation for not doing so referred to jetlag and tiredness. Although it may be said that Manju Sam had, to an extent, been worn down by the ongoing demands of Gloria because of her condition, I am satisfied that Gloria's condition was obvious to her, as was her pain and suffering, so that the omission of Manju Sam to obtain medical treatment in this period constituted a grave example of gross criminal negligence. Manju Sam was Gloria's mother, the person from whom, above all others, the child was entitled to expect nurture, care, sustenance and protection, and she failed the child in her most important duty, with fatal results: R v O'Brien [2003] NSWCCA 121 at [74].

Relevant events occurred over an extended period of time. This was not a flawed decision made in pressured circumstances over a short period of time.

I am satisfied that a very wide chasm lay between the approach of the Offenders to Gloria's condition, and that which a reasonable parent would have taken in all the circumstances."

His Honour considered the subjective circumstances of each of the appellants and made the following findings:

I have referred earlier to the personal circumstances of the Offenders, including age, background and education. Each Offender has no prior convictions. There is a substantial body of evidence adduced in the case of each Offender of their good works in India and in Australia.

Each Offender had the benefit of a supportive and stable upbringing, a supportive family and significant educational opportunities in India.

Character evidence was adduced in the case of each Offender, with oral evidence being given in the case of Thomas Sam, in addition to documentary character evidence.

The Offenders have been members of a Christian church in India and Australia. Friends and associates from the church provided character evidence for each Offender.

Professional, medical and homeopathic colleagues of Thomas Sam provided evidence of his capacity and character, as did some of his patients. A pro-forma reference was signed by some 185 persons, including friends and family.

I note that a referee for Manju Sam, Dr John Ashton, a dentist who has known her since 1998 in connection with her employment with HCF, described her as a "compliant and rather non-assertive woman who was deferential to authority".

Work colleagues of Manju Sam provided character evidence concerning her character and capacity.

Thomas Sam was a hard-working homeopath. Positive evidence was tendered in his case concerning his reputation and capacity as a homeopath. As a result of these proceedings, he will lose his professional capacity to practise in Australia.

Manju Sam worked consistently in a responsible administrative position in Sydney before and after Gloria's death. The evidence points to her reputation and capacity in that employment.

A three-year old son was born to the Offenders in 2006. A report of Dr Christopher Lennings, psychologist, addressed the adverse impact upon this child if the Offenders were imprisoned. Dr Lennings said that the boy presented as a reasonably well-adjusted child and that deleterious consequences to him would flow from the imprisonment of both of the Offenders. Other evidence established that the boy had been treated successfully for eczema by a combination of conventional medicine and homeopathy.

Psychiatric and psychological reports were tendered with respect to the Offenders. Dr Katie Seidler, psychologist, saw Manju Sam on 16 June 2009 and furnished a report. Dr Seidler referred to Manju Sam's difficulty in coping in 2002 and raised the prospect that she was depressed at the time. Her report described ongoing symptoms of anxiety and stress in relation to Gloria's death.

Dr Stephen Allnutt, psychiatrist, examined Thomas Sam in custody on 29 July 2009 and 9 August 2009. Mr Troy Spiers, psychologist, had seen Thomas Sam on some 18 occasions between September 2008 and June 2009 for cognitive behavioural therapy sessions. Dr Keith Kennett, psychologist, examined Thomas Sam on 19 June 2009.

It was accepted by the parties before me that the psychological evidence concerning Thomas Sam and Manju Sam should not cross the barrier of expertise, so as to enter into the field of psychiatry: R v Peisley (1990) 54 A Crim R 42 at 52; R (Cth) v Petroulias (No. 36) [2008] NSWSC 626 at [164]. I approach the psychological evidence in this way, and will disregard any purported diagnosis by a psychologist of a psychiatric condition. I bear in mind, as well, that neither Offender gave evidence at the trial or in the sentencing proceedings, and that this affects the weight to be given to their accounts to the report authors: R v Qutami (2001) 127 A Crim R 369 at 377 [58]; R v Palu (2002) 134 A Crim R 174 at 184-185 [39]-[41].

There is an especially significant aspect of the psychological evidence to which reference should be made. As I have said, Mr Spiers saw Thomas Sam for 18 sessions of cognitive behavioural therapy between September 2008 and June 2009. Mr Spiers described characteristics in Thomas Sam of self-grandiosity and arrogant behaviour, involving boasting of his professional credentials as a homeopath and emphasising his spiritual maturity as a Christian. Clearly, Mr Spiers was in a position to form a view concerning these features, given his extended dealings with Thomas Sam over a nine-month period. Mr Spiers observed that the attitudes and behaviour which he had seen in Thomas Sam were consistent with a provisional diagnosis of narcissistic personality disorder. Dr Allnutt, psychiatrist, did not consider that Thomas Sam qualified for diagnosis with an antisocial personality disorder, and he was unable to diagnose narcissistic personality disorder based on the information provided to him. Dr Allnutt observed, however, that Mr Spiers had seen Thomas Sam for 18 sessions and he accepted the observation of Mr Spiers that Thomas Sam manifested some narcissistic personality traits over this period. Amongst the factors which Dr Allnutt thought may have contributed to the offence by Thomas Sam was a rigid preference for homeopathic treatment approaches in dealing with Gloria.

Having regard to the limitations upon the use of psychological evidence in reaching psychiatric diagnoses, a clear foundation for a finding that Manju Sam was depressed at the time of the offence is not apparent. A further difficulty arises from the fact that Dr Seidler saw Manju Sam once only, in June 2009, seven years after the relevant events. There is no contemporaneous medical evidence concerning Manju Sam's condition in July 2001 - May 2002. Reference was made by counsel to Manju Sam's appearance in the record of interview of 9 May 2002. I do not think this provides a platform for a diagnosis of depression. Nevertheless, I accept that Manju Sam was experiencing some level of stress as a result of Gloria's protracted illness and that her reaction was, in these circumstances, somewhat blunted.

Although I accept that Thomas Sam has been affected adversely, and become depressed, as a result of these proceedings, I am not satisfied that he was suffering from any disorder at the time of the offence. Dr Allnutt's report does not support such a conclusion. Dr Kennett's report moves beyond the limits of psychological assessment, and senior counsel for Thomas Sam did not seek to rely upon it in that respect (T83-92, 13 August 2009).

On behalf of the appellants it was submitted to his Honour that the delay between Gloria's death and the initiation of proceedings by ex officio indictment in December 2008 was significant and should be considered relevant to the sentence to be imposed. His Honour accepted that there had been delay in the investigation and prosecution and indicated that he would have regard to it in the mitigation of penalty. His Honour also accepted that there were exceptional circumstances which justified having regard to the adverse impact upon the appellants' son Daniel if his parents were imprisoned. Daniel was born to the appellants after Gloria had died and before they were indicted for her manslaughter.

His Honour was mindful of the need to ensure that the sentences reflected a significant element of general deterrence, recognising a need for parents to understand the serious consequences of breaching the trust reposed in them to care for their infant children. His Honour emphasised that a heavy responsibility rests upon parents to care for a child who is utterly defenceless: R v Wilkinson (1999) NSWCCA 248 at [26]. His Honour also recognised a need for general deterrence in the sentence to be imposed upon Thomas Sam so as to remind alternative health providers of the need to ensure that, where appropriate, a patient receives conventional medical treatment.

His Honour had regard to the evidence of good character of both appellants, the consequences of delay and their family circumstances. His Honour was also mindful of the effective termination of Thomas Sam's career as a homeopath and the effect upon the appellants of the publicity surrounding these proceedings.

His Honour concluded that the offence of Thomas Sam lay at the higher end of the scale of seriousness for offences of manslaughter by criminal negligence. His Honour determined the seriousness of the offence of Manju Sam as lying below that of her husband.

The written submissions filed on behalf of Thomas Sam in this appeal are relatively brief. His counsel adopted the submissions on behalf of Manju Sam.

On behalf of Thomas Sam senior counsel emphasised that the evidence did not suggest callous disregard or uncaring negligence. It was submitted that although misguided Thomas Sam should be considered to have been doing the best for Gloria. Counsel emphasised that the appellant had led a blameless life, would suffer extra curial punishment by losing his position as a homeopath and had demonstrated profound anguish, remorse and contrition. It was submitted that there was no need for specific deterrence. There being no like offender to be deterred, general deterrence was said to have limited application. Counsel emphasised the delay between the death of Gloria and the ultimate conviction of the appellants.

The submissions on behalf of Manju Sam were more detailed and covered the issues raised by the individually identified grounds of appeal. It was submitted that the sentence was manifestly excessive. Reference was made to the transcript of the sentencing hearing where counsel submitted that a suspended sentence may be appropriate. Emphasis was placed on the fact that Manju Sam was never warned by any medical practitioner that her child was in danger and it was submitted she was given a false sense of confidence by the medical practitioners.

Counsel for Manju Sam also emphasised the delay between the death of Gloria and her indictment. It was submitted that the birth of another child during that period made the delay oppressive.

It was submitted that Manju Sam obviously loved her child and the impact of the death on her was "devastating." Emphasis was placed on the fact that the evidence indicated that there would also be a significant effect upon the child, Daniel, if Manju Sam was incarcerated.

Counsel for Manju Sam also emphasised the fact that because of the death of Gloria she had become hyper protective of her second child.

Some of the findings of the sentencing judge were criticised, including a finding that each of the appellants had an understanding of the consequences of protracted eczema and associated weight loss. It was submitted that this finding was not founded in the evidence. It was submitted that homeopathy was regarded in India as on an equal footing with conventional medicine and accordingly it was submitted that his Honour inappropriately emphasised the seriousness of the failure of the appellants to seek conventional medical assistance. Because Manju Sam was married to a homeopath it was submitted that she was entitled to rely upon her husband taking appropriate steps for the child's welfare and that her limited culpability did not require a sentence of full time imprisonment.

It was submitted that when in India Manju Sam was entitled to rely upon the advice of Dr Patel who was an eminent practitioner. It was submitted that Manju Sam was entitled to be comforted by the advice she had received and it was unreasonable to expect her to challenge it. It was submitted that Manju Sam was entitled to the view that the child did not require immediate hospitalisation. Counsel emphasised Manju Sam's preparedness to consult conventional doctors when Gloria's condition suggested that this was necessary. Counsel drew attention to the sentencing judge's observation that Manju Sam was prepared to obtain assistance from conventional medical practitioners when she was suffering from gallstones. It was submitted that this was not evidence of disregard for the welfare of Gloria taking into account the fact that there was no evidence that homeopathy could treat gallstones.

It was submitted that his Honour erred in rejecting Manju Sam's account that Gloria's skin condition waxed and waned and had improved upon returning to Australia. It was submitted that his Honour was wrong to accept the evidence of passengers from the plane about the condition of the child but reject the evidence of Manju Sam and place no reliance on the evidence of a neighbour who said that she did not hear Gloria cry after the Sam's return from India.

Further complaint was made about the fact that his Honour had regard to the fact that there was no evidence that the appellants were affected by any social disorder, substance abuse or limited intelligence or education. It was submitted that these factors were favourable to the appellants rather than otherwise as his Honour found.

Finally, it was submitted that the sentencing judge should have disqualified himself from sentencing the appellants. This submission was founded on the fact that between his conviction and sentence Thomas Sam was charged with threatening to kill, amongst others the trial judge. It was submitted that a reasonable observer would have concluded that "this would have affected a sentencing judge." It was submitted that although only Thomas Sam made the threat the principle of parity would have the consequence that if the threat impacted upon the sentence of Thomas Sam it would have adversely affected the sentence of Manju Sam.

I have already indicated that the sentencing judge's remarks on sentence were thorough. His Honour carefully analysed the relevant evidence. Each of the findings impugned in grounds 5 to 9 by Manju Sam were well open to his Honour.

In significant respects the submissions made on behalf of both appellants sought to traverse the verdict of the jury. An issue at the trial for the jury was whether the appellants were simply misguided in their response to Gloria's condition or so derelict as to warrant conviction for manslaughter. It was submitted that this Court should approach their sentencing on the basis that the appellants were merely misguided.

In relation to Thomas Sam, although the appellant listed a number of subjective and objective matters which were submitted to be relevant to his sentence no error in his Honour's findings was suggested and it was not indicated how any having regard to the factors which his Honour considered the sentence was excessive. Senior counsel emphasised the various subjective matters to which I have previously referred. His Honour considered them all. Thomas Sam has never acknowledged responsibility for Gloria's death and little if any weight can be given to a submission that he has demonstrated profound anguish, remorse and contrition.

Both appellants have continued to refuse to acknowledge the severity of Gloria's condition, particularly in the last days of her life. These included her size, obvious malnutrition, listlessness, change in colour, loss of hair, grossly eroded moist raw skin and ultimately the eye infection. The autopsy revealed that her major organs were significantly reduced, confirming her malnourishment over a significant period of time. The evidence was that in her final days she suffered severe pain. The sentencing judge found that the level of neglect could be characterised as cruelty. His Honour said "Gloria suffered helplessly and unnecessarily while suffering from a condition that was treatable."

With respect to Manju Sam the evidence did not indicate that she was a particularly deferential wife. She was well educated, had been in fulltime employment and had acted independently of her husband in seeking treatment for Gloria on some occasions. Notwithstanding the evidence to the contrary she continues to maintain that there was nothing seriously wrong with Gloria and that it was not unreasonable to fail to seek treatment for her.

The sentencing judge was mindful of the delay between the death of Gloria and the indictment of the appellants. He expressly referred to this issue in his remarks on sentence, in fact gave it a separate sub heading, and there can be no doubt that he had regard to it when determining the sentence which should be imposed. I am not persuaded that his Honour did not give this issue "sufficient weight."

His Honour was also mindful of the impact upon the child, Daniel, and his Honour accepted that there was an exceptional degree of hardship warranting mitigation of the penalty. There is no basis for the complaint that his Honour "did not give sufficient consideration" to this issue.

I am not persuaded that either appellant has suffered extra curial punishment by reason of their conviction. Whatever consequences have followed from their actions, including if it be the case in relation to Thomas Sam, the loss of his right to practice as a naturopath, they are not matters which support that the sentences are excessive.

Although the evidence indicated that Gloria's condition varied from time to time it is plain that from February 2002 she seriously declined. She lost weight, did not grow, the rash became infected and eroded the upper layer of her skin. The deterioration was constant, although her symptoms were moderated from time to time for an extensive period she was gravely ill and in great pain. During the period between February and May the appellants failed to follow the medical advice which was given to them. Dr Patel's diagnosis on 13 April did not excuse the appellants from seeking urgent treatment for Gloria's condition. Although it may have been the case that homeopathy did not offer a remedy for gallstones, explaining why Manju Sam sought conventional treatment for own condition, this did not excuse the appellants from not seeking appropriate treatment for Gloria.

With respect to his Honour's comment upon the intelligence and education of the appellants I accept that this was a neutral factor. If they were lacking intelligence or education mitigation of the penalty may have been justified. However the fact that they were intelligent and educated was not an aggravating feature. His Honour said "these features operate against the offenders on sentence." I do not understand his Honour to be suggesting that this was an aggravating feature but rather that the appellants could not claim the benefit of any lack of education or social disability. However if I have misconstrued his Honour I am satisfied it has not played any significant part in the sentences that were imposed.

I am not persuaded that his Honour should have disqualified himself from sentencing. No application was made for his Honour to disqualify himself on any day of the sentence hearing and light was sought to be made by counsel of Thomas Sam's remarks. His Honour's response was a concern that Thomas Sam might seek to harm himself. The threat was not otherwise taken seriously.

A schedule of sentencing decisions involving the manslaughter of young children was tendered before his Honour: R v HA [2008] NSWSC 1368; Rickard v R [2007] NSWCCA 332; R v Johnston [2007] SASC 300; R v HMF [2005] NSWSC 1214; R v O'Brien [2003] NSWCCA 121; Hill v R [2003] NSWCCA 16; R v Eriksson [2001] NSWSC 781; R v McDonald [2001] NSWCCA 301; R v Wilkinson [1999] NSWCCA 248.

Consideration of these cases confirms that the criminal neglect of young children is regrettably an offence which has been committed on a number of occasions. The number of those offences more than justified his Honour emphasising the need for a sentence which reflected an element of general deterrence. Nothing in the decisions referred to supports the appellants' submission that their sentences were erroneous.

Notwithstanding the carefully prepared written submissions supported by oral argument I am not persuaded that his Honour erred when sentencing the appellants. The crime of which they were convicted was the unlawful killing of their daughter. As I have related this occurred in circumstances where the child was grossly unwell and suffering in great pain. The failure of the appellants to discharge their obligations to care for her justified their imprisonment. His Honour was careful to impose sentences which had proper regard to their circumstances and that of their young child, Daniel. Although I would grant leave to appeal against sentence those appeals should be dismissed.

Orders
1. Appeals against conviction dismissed.
2. Leave to appeal sentences granted but appeals dismissed.

HOEBEN J: I agree with McClellan CJ at CL and the orders he proposes.

R A HULME J: I agree with McClellan CJ at CL.

Case Title:	SAM, Thomas v R SAM, Manju v R
Medium Neutral Citation:	[2011] NSWCCA 36
Hearing Date(s):	12 October 2010
Decision Date:	10 March 2011
Jurisdiction:
Before:	McClellan CJ at CL at [1] Hoeben J at [179] R A Hulme J at [180]
Decision:	1. Appeals against conviction dismissed. 2. Leave to appeal sentences granted but appeals dismissed
Catchwords:	CRIMINAL - Appeal against conviction - criminal negligence manslaughter of baby - standard of care of a reasonable parent - standard of care of a reasonable homeopath - verdict unreasonable having regard to evidence - not callous disregard or uncaring negligence - evidence of medical appointments not sufficient to refute liability - appeal dismissed. CRIMINAL - Appeal against sentences - severity appeal - delay in bringing trial to court - second child born in interim - extra-curial punishment not found - appellant threatened sentencing judge but judge not required to step down - Leave to appeal against sentences granted but appeals dismissed.
Legislation Cited:	Limitation Act 1969 (NSW). NSW Lotteries Corporation Act 1996 (NSW) Public Lotteries Act 1996 (NSW). State Owned Corporations Act 1989 (NSW)
Cases Cited:	Hill v R [2003] NSWCCA 16 Masciantonio v R (1995) 183 CLR 58 R v Eriksson [2001] NSWSC 781 R v HA [2008] NSWSC 1368 R v HMF [2005] NSWSC 1214 R v Johnston [2007] SASC 300 R v McDonald [2001] NSWCCA 301 R v O'Brien [2003] NSWCCA 121 R v Taktak (1988) 14 NSWLR 226 R v Wilkinson [1999] NSWCCA 248 Rickard v R [2007] NSWCCA 332 TKWJ v The Queen (2002) 212 CLR 124
Texts Cited:
Category:	Principal judgment
Parties:	Thomas Sam (appellant) Manju Sam (appellant) The Crown
Representation
- Counsel:	Counsel: J Glissan QC/W Wilcher (Thomas Sam) M Thangaraj SC/D Barrow (Manju Sam) D M L Woodburne SC (Crown)
- Solicitors:	Solicitors: KP Lawyers and Barristers (Thomas Sam) Uther Webster & Evans (Manju Sam) Director of Public Prosecutions (Crown)
File number(s):	2008/192972008/19298
Decision Under Appeal
- Court / Tribunal:
- Before:	Johnson J
- Date of Decision:	28 September 2009
- Citation:	NSWSC1003
- Court File Number(s)	2008/192972008/19298
Publication Restriction: