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Sentencing Appeal - Sep 18, 2009 - Part 2

[49] I would order:
1. that the appeal be allowed;
2. that the sentence of four and a half years imprisonment suspended after 12 months for an operational period of four years be set aside;
3. that the respondent be imprisoned for four and a half years, suspended after 18 months for an operational period of four and a half years; and
4. that the declaration as to time already served (23 days, from 13 May 2009 to 5 June 2009) remain in place.
[50] MUIR JA: I gratefully adopt the Chief Justice's statement of relevant facts and concur with his reasons concerning the approach to be taken by this Court on an appeal pursuant to s 669A of the Criminal Code 1899 (Qld). I am also obliged to Chesterman JA for his exposition of the facts, which I also adopt.
[51] Williams JA in his reasons in R v Bates; R v Baker,1 after observing that 'Sentencing for manslaughter is always difficult', explained:
"It has often been said that the offence of manslaughter covers a wide variety of circumstances in which a person has been unlawfully killed. Because of that it is difficult to speak of a range of punishment applicable to the offence, and it explains why it is sometimes difficult to reconcile one sentence of manslaughter with another. Many crimes of manslaughter involve what could be described as a one on one situation. In many such instances there are
1 [2002] QCA 174.
complicating features such as provocation, excessive self-defence and a single blow (with or without a weapon) delivered in a highly emotional situation. Such cases can readily be distinguished from a planned gang attack on a relatively defenceless person in a remote locality. There is an even greater abhorrence generally in society when such an attack is carried out with retribution as its main object."
The nature and extent of the respondent's culpability
[52] As the facts of this case differ substantially from the facts of all the cases to which the Court was referred, it is desirable to identify the nature of the respondent's criminality and the sentencing principles which have particular relevance to his sentence. The approach of Thomas J, with whose reasons Cooper J agreed, in R v Streatfield2 is instructive:
"The first matter that needs to be considered is the nature of the criminality, and the extent to which it demands punishment or retribution. An observation made by Sir Owen Dixon in 'The Development of the Law of Homicide' (1935) 9 ALJ (Supp) 64 is I think pertinent:
'There are two marked features of the growth of the English law of homicide. The slow but steady consistency with which it has pursued a single principle of development is its first and most obvious characteristic. For eight centuries the course of its very gradual evolution has been from an almost exclusive concern with the external act which occasioned death to a primary concern with the mind of the man who did the act.' "
[53] The 25 year old applicant in Streatfield was under the mistaken impression that his .22 rifle was unloaded. He pointed it at his young, pregnant, de facto spouse and pulled the trigger. She was killed instantly and her child was lost. The applicant's act was described as one of "'monumental stupidity' attended by a degree of arrogance and conceit.3"
[54] When further considering the matters which merited particular consideration, Thomas J4 noted that the maximum sentence for both murder and manslaughter in Queensland was life imprisonment and observed: 5
"… in passing a sentence for the crime of manslaughter the court is vitally concerned with the mind and culpability of the offender.
The absence of intention to harm must be a very significant factor, and is probably the primary factor in assessing the quality of the offender's act that amounts to manslaughter. In the present case stupidity is revealed rather than wickedness. Malice is nowhere to be found. In this respect the case must be less seriously regarded than the ordinary domestic killings where there is a distinct intention to harm, albeit a fleeting one which may have been provoked by the injured party."
2 (1991) 53 A Crim R 320 at 326.
3 (1991) 53 A Crim R 320 at 329.
4 (1991) 53 A Crim R 320 at 326.
5 (1991) 53 A Crim R 320 at 326 – 327.
[55] The culpable conduct of the respondent was his failure to take appropriate and obvious measures to bring his wife promptly to the surface when she got into difficulty and sank to the ocean floor. Not to do so was to ensure her death. Shortly before the respondent decided to swim for help, he had been assisting his wife. He released his grip on her only when she dislodged his mask and regulator. As he was clearing his mask and placing his second regulator in his mouth, his wife started to sink. He started to descend after her but quickly decided to return to the surface for help.
[56] The evidence is unclear as to why the respondent made his flawed decision. His counsel on appeal submitted that he panicked. The respondent himself did not advance that explanation in any of his accounts of the incident but his counsel submitted that it was not surprising that he would not wish to advance an explanation which cast him in a poor light. If the respondent did not panic, it seems plain that, in the absence of a sinister explanation for his conduct (and no intention to harm or abandon the deceased is alleged) the respondent was unable to cope with the situation in which he found himself. A person who saw the respondent surface and signal for help observed that he was distressed. In the result, the respondent failed, catastrophically, to fulfil his duty and to heed what would surely be a basic human instinct: to go immediately, directly and with determination to his wife's rescue.
[57] The respondent, however, had no intention of harming his wife. He did help her initially. His reprehensible decision to swim for assistance was made in a hostile environment when he was under stress. That he acted as he did in an attempt to obtain help is relevant, even though any assistance from others would almost certainly have come too late to benefit the deceased.
Comparable sentences
[58] The respondent's sentence of nine years for criminal negligence in Streatfield was set aside and a sentence of five years, with a recommendation that the applicant be considered for parole after 18 months, was substituted.
[59] The primary judge was referred by counsel to cases including R v Pesnak6 and R v Cramp.7 The applicants in the former case were married. The male applicant was 61 years of age and the female 63. Neither had prior convictions and both had expressed remorse. It was said in the reasons of the Court that until the events in question, "they were considered exemplary members of the community." As "breatharians", they believed that the atmosphere contained an energy force, prana, which is scientifically undetectable but which replaces the need for normal minimal requirements of food.
[60] The deceased, a 53 year old woman, voluntarily commenced a 21 day spiritual cleansing programme conducted by the male applicant, assisted by the female applicant. After a few days of fasting the deceased's physical condition markedly deteriorated. The deceased spent most of the seventh day of her fast asleep and "was only able to mumble". On the eighth day "[s]he had urinary incontinence and was vomiting, mumbling and hiccupping; she required assistance to use the toilet, and was largely bed-ridden." On the ninth day she was "unable to speak properly,
6 [2000] QCA 245.
7 Unreported, Supreme Court of Queensland, White J, 30 January 2008.
could not get up from a fall and was not alert. The male applicant telephoned a medical practitioner who was also a "breatharian" but did not ask him to visit or examine the deceased. The doctor and the male applicant agreed that the deceased's "disturbing symptoms" were signs of an internal spiritual struggle.
[61] On the tenth day "the deceased's right leg was weak; her loss of bladder control continued and she began to vomit black flakes." On the following morning the applicants noticed a black substance coming from her mouth, staining her face and bedding; she began hyperventilating, and by midday had difficulty breathing, her mouth being full of the black substance. She refused liquids and the applicants became seriously concerned for her health. Early in the afternoon the male applicant telephoned the doctor whom he had contacted earlier. The doctor was out. He left a message on the answering machine, "Can you help me? … would it be possible for you to come over after work and have a look at her, or, I don't know, for some advice or should I call the ambulance and what do I tell them?" Shortly afterwards the male applicant called triple 0 and the unconscious and severely dehydrated deceased was taken to hospital and placed on a life support system. She died about seven days later.
[62] The Court set aside the male applicant's sentence of six years and the female applicant's sentence of three years and substituted sentences, respectively, of four years imprisonment with a recommendation of eligibility for parole after serving eighteen months, and two years imprisonment with a recommendation for eligibility for parole after serving nine months.
[63] In the reasons of the Court it was said:8
"The sentencing judge accepted the applicants were unlikely to reoffend. It is nevertheless important to impose a substantial term of imprisonment in the hope of deterring others from engaging in such objectively dangerous and unacceptable conduct whilst pursuing personal religious or spiritual beliefs. The deceased was in the applicants' care; she was plainly unable to look after herself or to make a free and informed decision whether or not to obtain medical attention and they failed to seek the required medical attention."
[64] As the Court pointed out, the conduct was "objectively dangerous and unacceptable". The applicants made no attempt to obtain assistance, despite the deceased's obviously grave and worsening physical condition, until it must have been apparent that her condition had deteriorated to such an extent that her death was a distinct possibility. Also, it was the view of the Court that it was important to impose a sentence which would satisfy the requirements of general deterrence. General deterrence is not a relevant consideration in this case. It is singularly unlikely that the sentence imposed on the applicant will bear in any way on the conduct of persons with the safety of others entrusted to their care.
[65] In Pesnak, the Victorian decision of R v Vollmer & Ors9 is discussed as follows:
"In R v Vollmer & Ors, Mrs Vollmer died during the attempts of the applicants to perform an exorcism upon her. She had a psychiatric illness which the applicants honestly believed was caused by
8 R v Pesnak [2000] QCA 245 at [25].
9 [1996] 1 VR 95.
demons. The exorcism extended over a one week period. The applicants did not intend to cause her serious injury or death and were of prior good character. The cause of death was cardiac arrest brought about by compression of the neck which fractured the thyroid cartilage of the larynx. This occurred at the end of the exorcism period when the applicants attempted to physically remove the demons by squeezing and massaging the deceased's abdomen, chest and throat and by holding her tongue down. One applicant forced the deceased's mouth open to allow the demons to escape and during this process the deceased suffered cardiac arrest and died. The applicants attempted resuscitation and awaited her resurrection. The following day the police were called. Two applicants were convicted of manslaughter and false imprisonment; one was sentenced to 18 months and the other to 2 years imprisonment. Southwell J noted that the conduct which led to death took place over a short period and [the death] was totally unforeseen and that 'people must be discouraged from believing that in the name of religion, they can behave in the outrageous manner of the applicants.'" (footnote deleted)
[66] It was noted that the maximum penalty for manslaughter in Victoria at the time was 15 years and it was considered, by one member of the Court at least, that the sentence should reflect the need for general deterrence.
[67] R v Clissett10 is another example of poor decision-making resulting in death. The applicant and his intellectually handicapped de facto wife had the care of the wife's three children. When the applicant was at work, his wife placed her 18 month old son into extremely hot water, causing third degree burns to 10 to 15 per cent of his body. Such burns required intravenous fluid replacement and careful monitoring. When the applicant arrived home from work, he found the child "literally howling in pain". The applicant cleaned the child, bathed him in cold water and applied antiseptic cream to the burns. He continued that process for the next few days but did not seek medical assistance. He was concerned that if he did so, his wife's disabilities would become known and the other children may be taken off her.
[68] The applicant was successful in preventing infection but the child died from dehydration. Had he received prompt medical attention, he would have lived. The applicant's sentence of two years imprisonment was set aside and a sentence of 12 months imprisonment with a non-parole period of six months was substituted.
[69] The facts of R v Cramp11 are set out more fully in Chesterman JA's reasons. The applicant in that case left her three year old daughter in a comatose state for several hours after a fall during her evening shower without seeking medical assistance. The applicant, who was watching over her daughter, fell asleep at about 2 am. When she awoke at 4 am, her daughter had stopped breathing. She then sought assistance from neighbours but did not call an ambulance. The child died from a sub-dural haemorrhage. The sentencing judge found that had the deceased received timely medical intervention, she would have had reasonable prospects of survival. The applicant pleaded guilty and was sentenced to five years imprisonment with a recommendation for release on parole after 18 months.
10 Unreported, Supreme Court of Victoria – Court of Appeal, Phillips CJ, Brooking and Kenny JJA, 15 October 1997.
11 (Indictment 611/2007; sentenced pronounced 30 January 2008).
[70] The respondent's conduct cannot be excused or condoned but, to my mind, it was less culpable than the conduct of the offenders in Streatfield, Vollmer, Pesnak, Clissett and Cramp. The conduct in the last three cases was protracted, with the offender having ample opportunity to cease it and prevent the death of the deceased person. The presence of the obviously suffering, or in the case of Cramp, comatose, person who ultimately died would have provided a continuing reminder to the offender of the need to perform his or her duty. The applicant in Streatfield did an act which took the life of his de facto wife and unborn child. The applicants in Vollmer also killed their victim. An omission which causes death is not, necessarily, less culpable than an act which causes death but, in my view, the nature of the respondent's omission and the circumstances in which it occurred make it less culpable than acts of the nature of those perpetrated by the offenders in Streatfield and Vollmer.
[71] The fact that the offenders in Pesnak and Vollmer entertained illogical and perverse beliefs concerning their conduct and its likely consequences does not seem to me to be a significantly mitigating circumstance or a reason for concluding that the respondent's conduct was more culpable than the conduct of the offenders. Unlike the respondent's conduct, their conduct was not the result of a spur of the moment decision made under pressure.
[72] To the extent to which these decisions are capable of providing useful guidance for the sentence to be imposed in this case, it seems to me that they support the head sentence imposed by the sentencing judge. In concluding as I have, I am mindful of the Chief Justice's (de Jersey J as he was then) admonition in Streatfield12 that the respondent "is to be sentenced for a criminally negligent killing, not an accident."
[73] There were powerful factors in mitigation which the primary judge took into account. They are set out in detail in Chesterman JA's reasons. To my mind the matters of principal importance are: the respondent's lack of criminal history; his genuine remorse;13 his voluntary return from America to face trial in a foreign country, obviating the need for expensive and lengthy extradition proceedings; and the fact that for a lengthy period of time, the respondent endured the opprobrium of facing the charge of murdering his wife.
[74] Those matters in combination justified the suspension of the sentence appreciably before the expiration of half of its term. Minds may well differ as to whether the suspension of the four and a half year sentence after 12 months was overly generous. However, the sentence imposed, in my respectful opinion, was not so substantially different from any sentence which ought to have been imposed as to warrant any variation of it.
[75] For the above reasons, I would order that the appeal be dismissed.
[76] CHESTERMAN JA: The circumstances which brought about this appeal and the facts relevant to it are set out in the judgment of the Chief Justice. I gratefully adopt his Honour’s recitation of them which makes repetition unnecessary.
12 (1991) 53 A Crim R 320 at 329.
13 The sentencing judge's finding that the respondent "loved [his] wife and [was] devastated by her loss" was not challenged by the appellant.
[77] I apprehend that since the judgment in R v Lacey; ex parte A-G (Qld) [2009] QCA 274 the Court of Appeal, when considering an appeal against sentence brought by the Attorney-General, must itself decide what sentence should be imposed. It will do so having regard to such of the factors identified in s 9 of the Penalties and Sentences Act 1992 as are relevant to the particular case and by giving them such weight as the circumstances of the case require. The Court should also have regard to the sentence imposed at first instance and the reasons given for that sentence and the submissions of the prosecutor in the primary court as to the appropriate punishment. Any finding made by a primary judge on a question of fact relevant to the sentence should be disturbed only if plainly wrong. Having decided what the appropriate penalty is the Court may impose that sentence in place of the one appealed from. Although the discretion to vary the sentence is “unfettered” the Court should not, in my opinion, vary a sentence unless there is a substantial difference between the sentence of the primary judge and what the Court of Appeal thinks is proper.
[78] The respondent pleaded guilty to manslaughter on the basis that his actions or, more accurately, his inaction, constituted criminal neglect which is made an offence by a combination of s 290, s 291, s 293 and s 300 of the Criminal Code. By his plea of guilty the respondent admitted that he had undertaken to do an act, the omission of which was dangerous to his late wife’s life and that her death was caused by his omission.
[79] It has often been pointed out that manslaughter is an offence which may be committed in a great variety of circumstances with the consequence that the criminal, and moral, blameworthiness of the person who caused the death may also vary enormously. Some cases of manslaughter are all but murder: others are all but pure accident. It is for this reason that sentences imposed for manslaughter may be as low as a fully suspended sentence or as high as life imprisonment. Because circumstances may differ so greatly from one case of manslaughter to another it is often difficult to find helpful comparisons to assist in deciding what is the appropriate penalty in a particular case.
[80] The task in this appeal is even harder because no case to which we have been referred is anything like it. It is not an exaggeration to describe the circumstances as unique. That consideration made the task of the learned primary judge difficult. It has the same consequence for this Court.
[81] It is important to identify the relevant omission which led to Mrs Watson’s death. It was described by the prosecutor at first instance:
“The (respondent) breached his duty because he failed to ensure that (the deceased) had a source of oxygen, particularly by not attempting to share his oxygen with her; secondly that he let go of the deceased at a time when it must have been apparent to him that ... she needed assistance; thirdly, at having let go ... he failed to take hold of her again and failed to remain with her or follow her to ensure he could take hold of her; fourthly, he did not attempt to inflate her BCD or remove her weights; and fifthly he failed to make any reasonable attempt to take her to the surface. By allowing her to descend alone at a time when it was clear that she was not capable of looking after herself (the respondent) was in serious breach of the duty he had undertaken as a buddy with fatal consequences.”
[82] The description was repeated on appeal by the Solicitor General but it is wrong. Before dealing with the error another mistake, consequential on the first, should be noted. The prosecutor described the cause of death as:
“... drowning. ... the deceased failed to receive sufficient oxygen whilst under ... water.”
The deceased did not drown.
[83] Although the prosecutor identified five distinct breaches of duty, or omissions, it is readily apparent that there were only two. The first was not ensuring that the deceased had oxygen to breathe. The prosecutor’s complaint was that the respondent should have shared his oxygen supply with his wife or given her his “safe second” supply of oxygen from his air tank.
[84] The second omission was not taking his wife to the surface when it was apparent that she was in difficulty and not breathing. The omission was subdivided by reference to the means by which the respondent might have got his wife to the surface but there is really only one omission, not taking her there. He could have done so by inflating her buoyancy device and/or removing her weight belt, or by inflating his own buoyancy device and floating to the surface while holding onto his wife.
[85] It emerged in the course of argument on appeal that the first omission relied on by the prosecutor, not providing oxygen, was not something the respondent failed to do.
[86] When the dive master from Spoil Sport found the deceased on the seabed her regulator was in her mouth. It was attached to her air tank by a hose and was in good working order. It must follow that throughout the dive, until she died, Mrs Watson had her own supply of oxygen and did not need the respondent to supply it, and he did not omit to do so.
[87] It follows also from the fact that the deceased maintained the regulator in her mouth that she did not drown. The cause of death was asphyxiation. For some reason wholly unexplained in the materials provided the deceased ceased to breathe.
[88] The respondent’s criminal culpability lies in his failure to take the deceased to the surface when it was apparent she was in distress. He could, and should, have done so in the ways described by the prosecutor: inflating the deceased’s buoyancy device and accompanying her to the surface or swimming to the surface himself with or without inflating his own buoyancy device and taking his wife with him.
[89] The respondent gave a number of accounts of what happened. They vary in detail and content and there are some inconsistencies between them. Given the circumstances in which the accounts were given and the respondent’s evident and understandable distress at his wife’s death I do not myself attach the same significance to the inconsistencies as did the prosecutor. To some extent the accounts deal with different aspects of the dive. One can ascertain from them an understanding of the respondent’s omission.
Account to Singleton
[90] When the respondent and Mrs Watson had reached a depth of 45 feet they commenced to drift along the wreck. The deceased signalled she wanted to return
to the surface and the respondent noticed her eyes were “wide open”. They turned and headed back, the respondent holding the deceased’s hand to help her swim. She “appeared to relax and ... tried to grab (the respondent’s) regulator and mask.” He was unable to “tow” the deceased, let go and she sank quickly to the bottom. The respondent surfaced and called for help.
Account to Paula Snyder
[91] The deceased was too heavily weighted, knocked his mask off and tried to grab his regulator. The respondent attempted to have the deceased inflate her buoyancy device but she panicked and sank to the bottom. The respondent decided “in a split second” not to dive after the deceased but to surface and seek help.
Account to Operations Manager
[92] The respondent and deceased were swimming back to the descent line. The deceased stopped swimming. The respondent turned round and the deceased knocked his mask off and regulator out of his mouth. The respondent replaced his mask, cleared it of water, put his second regulator in his mouth, looked down and saw the deceased sinking, motionless. He swam after her but desisted because of pressure in his ears. He decided to surface and seek help.
Account given to police
[93] At about 30 yards from the descent line, over the wreck, the deceased indicated she wanted to return. They started to swim back side by side when the deceased started “to go down a bit”. The respondent held the deceased and swam with her but “she stopped swimming and started sinking.” The respondent swam close to the deceased and took hold of his buoyancy device inflator hose, indicating to the deceased that she should inflate her device. The deceased did take hold of her inflator hose but did not inflate it. The deceased continued to sink and the respondent realised “something was wrong”. He took hold of the deceased’s buoyancy device and started swimming back to the anchor line. The deceased dislodged his mask and regulator. He let the deceased go in order to clear his mask and put his second regulator in his mouth. When he had done this he saw the deceased five or ten feet below him, out of reach, sinking to the bottom. He swam down towards her “but ... realised there was nothing he could do”.
[94] It may be thought that the account given to the police is likely to be the most accurate. It was a formal interview conducted when the respondent should have had time to recover some composure and collect his thoughts.
[95] It is apparent from the respondent’s dive computer that he did not descend more than ten feet in the effort to reach his wife who had sunk after he released his grip on her equipment.
[96] What is common to the accounts is that the deceased became alarmed during the dive; was unable to swim herself to the descent line; in her distress dislodged the respondent’s mask and regulator, causing him to let her go; when he recovered his mask and regulator he saw her sinking helpless to the sea bed. He did not attempt to rescue her.
[97] It is obviously right to designate the respondent’s omission to assist his wife as serious, indeed grave. It is not just that the omission caused her death. It must have
been obvious to him that when he himself swam to the surface he was leaving his wife to die. He was her only means of survival and he turned away. He was capable of effecting her rescue, either by inflating his own buoyancy device or hers. He knew she was inexperienced and depended upon him for her safety. He knew she had declined an orientation dive because of her trust in his competence and capacity to protect her.
[98] Of the four purposes of criminal punishment: retribution, deterrence, denunciation and rehabilitation only denunciation is relevant here. The respondent is not in need of rehabilitation as that term is understood in the criminal jurisdiction of the courts. Punishment is not necessary as a deterrent, either to the respondent or anyone else. The offence is unlikely to be repeated. Nor is retribution important. Although I share the Chief Justice’s scepticism that the respondent truly panicked, that account being given for the first time at his sentencing, it is I think likely that the respondent left his wife because when confronted with a novel, difficult and dangerous situation he lacked the qualities of character, and the skills, to deal with it. Such failures are not usually a reason for retribution. The punishment in this case, in my opinion, was to be imposed as a means of denouncing the respondent’s behaviour in leaving his wife to die; he must have known as he did so that any help he could summon from the surface could not arrive in time.
[99] There are no truly comparable cases to help in the selection of an appropriate punishment. Cases dealing with the criminally irresponsible handling of guns or drug-filled syringes are not helpful because their subject matter is negligent actions involving objects of obvious potential danger. The respondent’s case is one of omitting to provide assistance.
[100] There are only two cases of that type to which we were referred. One is Pesnak [2000] QCA 245 referred to by the learned primary judge and by the Chief Justice. The sentence there was one of four years’ imprisonment with an eligibility for parole after serving 18 months. Pesnak was a 61 year old man who was intelligent and had a university education but, bizarrely, believed that the atmosphere contained a force which if harnessed by spiritual exercises could replace the body’s need for sustenance. He assisted a woman who had the same beliefs to achieve independence from the physical necessities of life by depriving her of food and drink, and medical assistance when it was needed. She died 18 days into a 21 day fast, effectively from malnutrition. Pesnak was convicted after a trial of manslaughter on the basis that he failed to provide sustenance or appropriate medical attention for the woman in his care.
[101] There are obvious differences between this case and that but there are similarities. The respondent’s case is more serious overall. Pesnak did not appreciate that his adherent was in danger until she was very ill indeed. He mistook her symptoms for evidence of a spiritual struggle. He did not turn his back on the woman and deny her help which he knew she needed. Such conduct is the gravamen of the respondent’s offence.
[102] The second case is a judgment of White J, R v Cramp (indictment 611/2007; sentence pronounced 30 January 2008). Cramp pleaded guilty to the manslaughter of her three year old daughter who fell in the shower and died some hours later of a brain haemorrhage. Cramp did not seek medical attention for the child though she was unconscious from the time of fall until her death and a neighbour, whom she
consulted, advised her to call an ambulance. She did not do so because she had been a drug addict whose children were taken from her and put in care. She recovered sufficiently to persuade the authorities to return the children to her but was concerned that the youngest child’s fall and injury might lead to their being taken from her again. Cramp gave her daughter what assistance she could. She made her comfortable and sat with her. She did not understand, though she certainly should have, the seriousness of the injury or apprehend the consequences if specialist medical assistance were not obtained. White J described the case as one of serious criminal neglect and imposed a sentence of five years’ imprisonment. To reflect Cramp’s personal difficulties which led her to behave as she did and her plea of guilty a parole eligibility date was fixed after 18 months.
[103] This case, too, is different. It is close in culpability but lacks the salient feature in the respondent’s case, of conscious abandonment to obvious danger.
[104] Pesnak and Cramp are the only cases which are of any assistance as comparisons. Because the respondent’s case is more serious they lead me to conclude that the sentence here should have been one of six years’ imprisonment with parole at the usual halfway mark before taking into account mitigating factors in favour of the respondent.
[105] The appellant contended that a term of seven years’ imprisonment was appropriate but I would reject this submission for the reasons given by Mr Burns SC who appeared with Miss Morreau for the respondent. Sentences of seven years’ imprisonment for manslaughter have been imposed by this Court in cases where the homicide was the result of physical violence intentionally inflicted on the deceased, though without an intention to kill or cause grievous bodily harm. The cases referred to were R v Tientjes ex parte A-G [1999] QCA 480; R v Chard; ex parte A-G (Qld) [2004] QCA 372 and R v Johnson; ex parte A-G (Qld) [2007] QCA 76. Those cases are, by their nature, more serious. It is, I think, possible to criticise the sentences as being too moderate but unless and until the cases are reconsidered it must be accepted that cases of manslaughter by neglect will result in penalties of less than seven years’ imprisonment.
[106] The mitigating factors were identified by the learned primary judge:
(i) The respondent has no criminal history and there is no suggestion that he might re-offend. There is, as I mentioned, no need for the sentence to have any deterrent aspect.
(ii) The respondent is a man of good character, well regarded by his community and given to selfless acts of charity. He was devastated by the loss of his wife whom he loved. Although the primary judge did not say so it is, I think, implicit that her death and his responsibility for it is a psychological burden that must weigh heavily on him. (The primary judge expressly found that the respondent was devoted to his wife and devastated by her loss. There was evidence to support the finding which the appellant did not seek to challenge. It must be said that this portrayal of the relationship between respondent and deceased is challenged in the victim impact statements provided by her family and friends. They are bitter in their hostility towards the respondent and are convinced of his malevolence towards the deceased. These statements were, however, provided at a time when those giving them had been led to believe that the respondent had intentionally killed the
deceased. One would expect that the statements have taken their colour from that belief.)
(iii) The respondent pleaded guilty very soon after the charge of murder was given up as having no substance and he was instead charged with negligently caused homicide.
(iv) The respondent voluntarily returned from America to face a charge of murder, thereby facilitating the administration of criminal justice and obviating expensive and protracted extradition proceedings.
(v) There was considerable delay in charging the respondent and bringing the case to trial. The delay appears unnecessary. The facts sufficient to charge the respondent with manslaughter were made known to prosecuting authorities within days of Mrs Watson’s death. They were provided by the respondent himself in his descriptions of the offence. The delays seem to have been caused by the attempt to prosecute the respondent with murder.
(vi) The delay caused the respondent considerable anxiety. Throughout its five years the respondent faced the uncertainty of not knowing whether he would be charged and then the opprobrium of being accused of his wife’s murder. The case was widely publicised and the respondent wrongly accused in the public eye of murder.
(vii) The respondent has no family or friends in Australia and imprisonment for him here will be a greater hardship than for those who can see and speak to loved ones.
[107] Of these factors, (iv), (v) and (vi) are of particular importance. That the respondent himself promptly provided the information which proved the case against him and that for years he has borne the unjust charge, made very public, of murder are factors requiring substantial amelioration in sentence.
[108] The learned primary judge gave careful thought to the appropriate sentence. The decision was as difficult for his Honour as it is for this Court. Recognising the difficulty, weighing and balancing the need to denounce the respondent’s criminal conduct with the unique circumstances of the offence and the factors in mitigation, it is my opinion that a sentence of five years’ imprisonment suspended after 18 months is proper. Suspension after 18 months rather than the usual period of half the sentence is justified by the strength of the case in mitigation.
[109] I would not regard the difference between five years, and four years six months, preferred by the learned primary judge by way of head sentence as a disagreement of such substance as to warrant interfering with that part of the sentence. The difference of six months in the actual time to be served in custody is, I think, substantial and justifies a variation. The reason I would impose the longer term is that 12 months’ custody is an insufficient denunciation of the respondent’s abandonment of his wife. He should have done something to effect a rescue and his failure in that regard deserves stronger censure.
[110] I would allow the appeal and vary the sentence imposed on 5 June 2009 by suspending the sentence of four and a half years’ imprisonment after 18 months with an operational period of four and a half years. 23 days of pre-sentence custody from 13 May 2009 to 5 June 2009 be declared time already served under the sentence.
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