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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWCCA 36
Decision Date: 10 March 2011

CaseChat Overview and Summary

In the case of Sam v R, the appellants, Thomas Sam and Manju Sam, appealed against their convictions and sentences for the criminal negligence manslaughter of their infant daughter. The case was heard in the court of appeal. The fundamental issue before the court was whether the verdict of criminal negligence manslaughter was unreasonable in light of the evidence presented. The court also considered whether the severity of the sentences imposed was appropriate, particularly in light of the delay in bringing the trial to court and the birth of a second child during the interim period.

The court examined the standard of care expected of a reasonable parent and whether it was applicable in this case. Additionally, the court assessed whether the standard of care expected of a reasonable homeopath should have been considered. The court found that the evidence of medical appointments did not sufficiently refute the appellants' liability for the manslaughter. However, the court concluded that the verdict was not unreasonable, as it was not based on callous disregard or uncaring negligence. Regarding the sentences, the court found that there was no extra-curial punishment and that the appellant had threatened the sentencing judge, but the judge was not required to step down. The court granted leave to appeal against the sentences, but ultimately dismissed the appeals.

The court dismissed the appeals against both the convictions and the sentences. The reasoning and outcome demonstrate the court's focus on the evidence presented and the appropriate standards of care expected in this case. The final orders of the court reflect its determination that the convictions and sentences were appropriate, considering all relevant factors.

Orders