Frantzetis v The Queen

[2015] NZHC 710

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2013-020-2122 [2015] NZHC 710

BETWEEN

ANNETTE-MARIE FRANTZETIS

Appellant

AND

THE QUEEN Respondent

Hearing:	1 April 2015
Counsel:	E J Forster for Appellant Z R Hamill for Respondent
Judgment:	15 April 2015

JUDGMENT OF THE HON JUSTICE KÓS (Appeals against conviction and sentence)

[1]      Mrs Frantzetis mistreated three foster children placed in her care.  As a result she was convicted in the District Court on three representative counts of assault with a weapon,1  and three representative counts of ill-treatment,2  of the children.   Her husband was convicted on a single count of ill-treatment.

[2]     These were children who desperately needed a loving and nurturing environment.   That environment was denied first by original mishap in parentage, and later by Mrs Frantzetis’s wilful misconduct as a foster parent.  These essential facts must not be lost sight of in this appeal, given that the ill-treatment convictions remain uncontested.

[3]      Mrs Frantzetis appeals the assault convictions only.  She appeals also the 16

months’ imprisonment sentence imposed in respect of the offending as a whole.

1      Crimes Act 1961, s 202C(1)(a). The relevant weapons were a wooden spoon and, in one case, a hearth brush.

2      Crimes Act 1961, s 195.

FRANTZETIS v THE QUEEN [2015] NZHC 710 [15 April 2015]

Evidence

[4]      The children I will call J, S and K.  J was placed with Mrs Frantzetis and her husband in October 1998 when he was five.  S, his sister, on the same date when she was six.  K was 12 when she was placed with the family in August 2004.  J left the appellant’s care in 2007.  S and K in 2008.

[5]      As there is no appeal against the ill-treatment convictions, it is appropriate to start with the evidence on those unchallenged convictions.  They provide context for the more specific, contested convictions for assault.

Ill-treatment

[6]      The evidence of S was that conditions were “okay” when she and J first came to stay with Mr and Mrs Frantzetis.  But after departure of another foster child from the house “everything just started to go downhill”.  At that point, when S was about nine or 10 years of age, she was required get up at 6.00 am to do household chores. She was chastised for failing to meet Mrs Frantzetis’s standards.  She had to clean up after the other children, and prepare meals for the household.  Her evidence was that the children were given only jam sandwiches and an apple for lunch.  If their lunch was discovered uneaten, they would be forced to eat it, even if several days old.  She was required to attend to Mrs Frantzetis’s personal hygiene, including assisting with hair removal and bathing.  Her evidence was also that when her brother J was about

10 years old he was sent by the appellant to live outside in a caravan because of a bed wetting problem.  When they moved addresses, about a year later, he was largely shut outside, not allowed inside, not allowed to go to the toilet, and only allowed to shower rarely.   If he wet his school uniform, he was required to still wear it to school.  He was underfed and began stealing food.

[7]      J essentially confirmed S’s evidence in relation to his own treatment.

[8]      K’s evidence was generally to the same effect.   When J, underfed, took to stealing food from a pantry, and food from friends at school, the children were sent to look for evidence that he had done so and report back to Mrs Frantzetis.   Her

evidence  confirmed  the  squalid  conditions  of  the  caravan  J  lived  in,  and  his exclusion from the house.

[9]      It  is  apparent  from  the  Judge  Adeane’s  reasons  for  verdicts  that  he substantially accepted the children’s evidence on these points, although not each and every detail. Those convictions are unchallenged.

Assaults

[10]     Each of the children gave evidence of physical punishment.  S gave evidence that Mrs Frantzetis had punched the children facially, pulled their hair, and used various weapons punitively, such as a rolling pin, vacuum cleaner pole, wooden spoons and hearth brushes.  Sometimes the wooden spoons broke, such was the force used.   Her evidence was that these events occurred frequently as a result of Mrs Frantzetis’s opinion that chores had been improperly performed:

No matter what there was always a problem with the chores, so every time there was a problem with a chore there was always a punishment involved with that.

J’s evidence was that he was hit “every time I did something wrong”, and that would happen pretty much daily.  He also saw S being hit.  K was physically chastised less, because of a bone condition.  She gave evidence that S was hit with a rolling pin and hearth brush, and J with a wooden spoon, rolling pin or hearth brush.

[11]     It is apparent from the reasons for verdicts given that the Judge did not accept a number of these specific allegations as proved beyond reasonable doubt.

[12]   In evidence-in-chief Mrs Frantzetis specifically and vigorously denied disciplining the children physically.  That denial was both general and then specific to various implements: rolling pin, hearth brush, plastic shovel, sweep and broom, vacuum cleaner pipe and wooden spoon.   All were specifically denied.   She was asked whether the children had been hit as a correctional punishment.  She said “no, no”.  She said that had never happened.

[13]     But  then,  perhaps,  one  question  too  many  was  asked.    Defence  counsel referred Mrs Frantzetis to records kept by Birthright and Family Care.   He asked whether, if the prosecutor spent the weekend going through them exhaustively, she would find any incidents recorded of Mrs Frantzetis smacking the children.   Mrs Frantzetis’s answer was:

Umm, but umm, not but, umm, I was thinking that she may have, I may have given them a tap with a wooden spoon, umm …

That seems to have come as something of a surprise to counsel and the Court, given

Mrs Frantzetis’s extensive prior denials of physical chastisement.

[14]     At that point the Judge asked whether such chastisement had happened.  The answer was:

I’m not 100 per cent sure but it may have.

Further questions ensued:

THE COURT:

Q.       And do you say there should have been some record kept of tapping the children with a wooden spoon?

A.       If I have done it, yes.

Q.       Well did you do it, was there anything to keep? A. I'm, I'm not 100% sure.

EXAMINATION CONTINUES: MR FORSTER

Q.       Well if you used the wooden spoon or not you'd remember wouldn't you?

A.       Yes.

THE COURT ADDRESSES MR FORSTER – NO LEADING EXAMINATION CONTINUES: MR FORSTER

Q.       Can you recall any incidents of you using a spoon, wooden spoon? A.       I don’t recall it but I, I personally don’t recall it.

[15]     Obviously the point was then pursued by the prosecutor in cross-examination. Mrs Frantzetis was asked whether she had hit the children with a wooden spoon:

Q.       So did it happen or did it not?

A.       I cannot recall it but it may have happened.

Q.       So you, you must – if you’re saying it may have happened, know

that you did hit children with wooden spoons?

A.       I did not hit children with wooden spoons, I, um, may have if I had done baking or something and whatever, but I truly, um, cannot

100% say whether I did.

…

Q.       As a parent –

A.       Yeah.

Q.       – you remember if you hit your children and if you did, how, don’t

you?

A.       Ah, yeah I presume yeah.

Q.       Parents don’t forget about those things do they?

A.       Ah, all depends how long it's been. I don't know how to answer that one sorry.

Q.       Did you hit the children with a wooden spoon? A. I don’t recall hitting them with a wooden spoon. Q.      But you may have?

A.       I may have, I do not know.

[16]     The concession, such as it was, remained equivocal.  The essential defence was that no physical chastisement had occurred at all.  But, notwithstanding, a s 59 lawful parental discipline defence was put in the alternative in closing.

Verdicts

[17]     The Judge’s reasons for verdicts are very brief indeed.  But no complaint is

made about any aspect other than his approach to the s 59 defence.

[18]     The Judge noted that Mrs Frantzetis elected to give evidence.   Two key assertions were said to have materialised.   The first was that she had denied any neglect of the children’s physical needs.  Secondly, she “repeatedly and categorically denied any physical chastisement of the children”.  On that basis the Judge took the

view that no issue of justification under s 59 could arise.  But, the Judge recorded, matters took a “rather different complexion” when Mrs Frantzetis then admitted that she “may have given them a tap with a wooden spoon”.   That evidence I have reviewed already.3  The District Court Judge said:4

Given the blanket denial of any such possibility, both in her two and a quarter hour out of Court statement to police and in her earlier evidence-in- chief, this stood out as a significant concession - even allowing for some ambiguity in expression.

[19]     The Judge went on to direct himself correctly on the onus of proof and on the constituent elements of the charges.  He then turned to s 59:

[42]      Matters of justification or excuse, once raised on an evidential basis, must be negatived by the Crown beyond reasonable doubt.  In my view, it ill-behoves   [Mrs   Frantzetis]   to   resort   to   an   alternative   defence   of “correction” under s 59 in the circumstances of this case, she having outright denied  any application  of force  to the  children.   There is  no evidential foundation to the claim for justification.  On the evidence, the submissions for [Mrs Frantzetis] concerned force and correction, could not be justified in circumstances where the complainants is the only evidence.    The circumstances which they describe did not justify the reported response.

[20]     The Judge ultimately concluded that all three complainants had been wilfully ill-treated by Mrs Frantzetis by failing to provide them with adequate nourishment or clothing, by imposing age-inappropriate duties, responsibilities and punishment, by failing  to  ensure  the  provision  of  age  and  situationally-appropriate  emotional support, and by unjustifiably applying corporal punishment to them.  In relation to J, the  Judge  was  satisfied  that  he  had  been  wilfully  ill-treated  by  emotional  and physical exclusion from the family circle, contrary to their obligations as his Court- appointed guardians.

[21]     He also found that Mrs Frantzetis, without justification, had assaulted the three children using a wooden spoon (and, in the case of J, a hearth brush) as weapons.

[22]     The upshot was that Mrs Frantzetis was convicted of three charges of assault, and three charges of ill-treatment.   Her husband Anthony was convicted of one

3      At [13] to [16].

4      R v Frantzetis DC Napier, CRI-2013-020-002122, 1 October 2014 at [27].

charge of ill-treatment.  Mrs Frantzetis was sentenced to 16 months’ imprisonment;

her husband to eight months’ imprisonment.

Leave to appeal out of time

[23]     Because charges were filed against the appellant on 1 July 2013, the appeal falls to be determined under Part 6 of the Criminal Procedure Act 2011.  This is a first appeal against conviction under ss 229 and 244 of that Act.

[24]     There  was  some misunderstanding as  to  the  correct  Court  in  which  this appeal should be filed.  The Court of Appeal directed that the appeal be filed in the High Court.  The appeal in this Court is now out of time, but there is good reason for that having occurred. The Crown does not oppose leave.  Leave is granted.

Conviction appeal

[25]     As I have noted, the three s 195 convictions for ill-treatment of the three children stand whatever the outcome of this appeal.   Two points are taken on the assault convictions appeal.

Failure to subdivide charges, temporally

[26]     The first point taken by Mr Forster concerns the failure of the Crown, and the Judge, to separate charges each side of 21 June 2007, when s 59 was amended to limit the scope of the parental disciplinary defence.   Mr Forster submits that the charges (and the Judge’s analysis of them) ought to have been broken down to consider separately conduct either side of that date.

[27]     I  do  not  accept  this  point.     Analytical  subdivision  would  have  been preferable.  But the Judge considered the historic and more lenient form of s 59 in respect of the whole of the charges, even to the extent they ran past 21 June 2007. As Ms Hamill for the Crown observed, that afforded a more generous defence.  No miscarriage of justice therefore arises either from the framing of the charges across the amendment, or the Judge’s analysis of the charges.

Failure to allow parental discipline defence

[28]     The second point taken, as Mr Forster puts it, is that the Judge determined that he did not need to consider the effect of the s 59 parental discipline defence because both defendants denied any application of force for chastisement.   The defendants were under no onus to raise the defence; rather, just as in the case of self- defence, the onus lies on the prosecution to exclude the defence once there is a credible or plausible narrative which might lead a jury to entertain the reasonable possibility of such defence.  Even if Mrs Frantzetis had disavowed a s 59 defence, it did not exclude s 59 being considered.

[29]     I am unable to accept Mr Forster’s submissions on this point either.

[30]     Mrs  Frantzetis’ position  at  trial  was  that  the  allegations  of  assault  were entirely false.  The cross-examination of the complainants was on the basis that they were lying.  It was put to them that the only discipline used in the household was the denial of privileges, such as watching television.  In her evidence at trial, and in her lengthy earlier police video interview, Mrs Frantzetis denied any kind of physical abuse.   She said that she disciplined the children by denying privileges such as television, using a “naughty chair” or making them perform a chore they did not like to do.   Only in one respect did she admit the possibility of having smacked the children.   That was the equivocal concession that she may have given them a tap with a wooden spoon.

[31]     The s 59 defence was patently an afterthought.  It was a consequence of the turn in Mrs Frantzetis’s evidence.   There is nothing wrong in that.   But the fact remains, as Mr Forster himself observed, that for s 59 to be considered at all, there must first be a credible or plausible narrative supportive of the defence.  If there is not such narrative, the Judge need not evaluate the defence further.  Had there been a jury, the defence would not have been put to it.

[32]     In  this  case  the  Judge  was  plainly alert  to  the  s  59  defence  now  being advanced.  As I have noted already, he took a conservative approach.  The reasons for verdicts shows he was conscious of the change in the form of the defence in

2007.  For ease of analysis, although the Crown might have objected, he treated the

more lenient historic defence as continuing for the short period of the alleged offending post-dating the 21 June 2007 change.

[33]     Mrs Frantzetis in her own evidence equivocated.  She did not in her evidence set out a premise on which the Court might find that there was a credible or plausible basis for reasonable force (in the circumstances) being used by way of correction.  In those circumstances the only material evidence, as the Judge noted, came from the three children.  None of that in my view provided the necessary narrative support for the defence.

[34]     Mr  Forster  sought  to  make  something  of  the  fact  that  the  children acknowledged  that  the  physical  punishments  occurred  when  they  had  got  “in trouble”.  But that is arid literalism.  “Trouble” here meant no more than the children departing from norms imposed by Mrs Frantzetis.  As is apparent from the evidence in relation to her ill-treatment of the children, the norms she imposed were deviant and unreasonable.  Enforcement of them could not possibly amount to the reasonable use of force by way of correction.  The Judge was entitled, therefore, to conclude, as he did:

The circumstances which are described did not justify the reported response.

Conclusion

[35]     The conviction appeal fails.

Sentencing

[36]     The Judge noted both J and S were now significantly damaged young adults. J in particular.  Recovery of full emotional health in his case was a remote prospect. Restorative justice would serve no useful purpose.  Neither defendant acknowledged committing any wrongful act.  Both maintained their innocence.  Neither expressed remorse.

[37]     The Judge considered there was a clear distinction between singular incidents of inadequate attention, and prolonged courses of neglectful conduct.   This was a

case of prolonged neglectful conduct; a course of abuse extending in the case of J

and S over a period of eight to nine years. As the Judge put:

The damage done of course, is the more deep seated for that reason and the culpability is high given that these were already entirely unsupported children.    They  were  then  isolated  in  abusive  circumstances,  they  were turned against each other as the victim impact reports poignantly reflects. They had nowhere to go for any sort of relief and through their young eyes the world must have been an extremely bleak place indeed.

[38]     The sentence of 16 months’ imprisonment imposed on Mrs Frantzetis was discounted for prior good behaviour from a starting point of 24 months.   On the subject of home detention, the Judge was sparing:

Home detention becomes an issue in both cases but in my view, as held in other comparable cases, it would not adequately denounce or deter this kind of prolonged misconduct.

Appeal against sentence

[39]     The  essential  submission  by  Mr  Forster  was  that  a  sentence  of  home detention would (in conjunction with community work) adequately respond to the sentencing goals of accountability, denunciation and deterrence.  Nor did the Judge reflect s 16 of the Sentencing Act 2002 requiring the Court to impose the least restrictive outcome available.

[40]     I am unable to accept these submissions.

[41]     It is instructive to look at the authorities.   In  Adams v R5  a parent was convicted of two representative charges of ill-treatment of, and one of assaulting, a small  boy over  a  period,  it  would  appear,  of  about  five  years.   The  offending included  force-feeding,  smacking  (curiously,  with  a  wooden  spoon  again)  and hitting, leaving the child (who had an incontinence issue) on the toilet for several hours at a time, and denying him proper fluid intakes.  Lang J declined to substitute home detention on appeal from a sentence of 20 months’ imprisonment.  He noted the  importance  of  general  deterrence  in  cases  of  the  mistreatment  of  young,

defenceless child victims.

5      Adams v R [2014] NZHC 42 at [18].

[42]     That approach was consistent with the earlier decision of the Court of Appeal in R v Mead.6   That case concerned cruelty meted out to three children (children of one defendant, and step-children of the other) over a period of months only.  The offending   involved   food   deprivation,   force-feeding,   excessive   chores   and punishment by beating with a belt.  The Court of Appeal declined to interfere with a sentence of two and a half years’ imprisonment of the stepfather, and one year’s

imprisonment of the mother.  As the Chief Justice noted, the sentences were stern, but within the range available to the sentencing Judge.7

[43]     In this case the same may be said.  The sentence of imprisonment is not in its own terms excessive, as Mrs Frantzetis implicitly concedes.  The sentencing Judge heard the evidence.  Manifestly it was a bad case of child abuse.  The more serious charges were probably those of persistent and enduring ill-treatment.  The sentence imposed reflected those as well as the assault convictions.

[44]     An appeal against a refusal to impose home detention rather than a short-term sentence of imprisonment is an appeal against the exercise of a fettered discretion.8

That is, a discretion defined in part by the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act 2002.   The Court of Appeal has pointed out that there is nothing in the Sentencing Act suggesting a presumption for or against imposing home detention rather than imprisonment.   There is only the sentencing principle that the Court must impose the least restrictive outcome appropriate in the circumstances.  Such an appeal is not a platform on which to recanvass the merits. The appellant  must  demonstrate an  error by the Judge in  exercising  his  or her

sentencing discretion. 9     The usual principles governing appellate review of first

instance discretion apply:  irrelevancy, omitted relevancy or plain error.

[45]     No  such  error  has  been  demonstrated  here.     The  Judge’s  exercise  of

sentencing discretion was, in particular, altogether in line with Adams v R – arguably a less serious case.10   The sentence imposed was in fact more lenient than in Adams.

6      R v Mead [2002] 1 NZLR 594 (CA).

7 At [48].

8      Manikpersadh v R [2011] NZCA 452 at [10]–[12].

9      Fraser v R [2013] NZCA 250 at [20].

10     Adams v R [2014] NZHC 42. See [41] above.

The Judge was plainly entitled to conclude that the seriousness of the offending here required a short sentence of imprisonment, and that home detention would not adequately denounce or deter offending of this kind.

[46]     These were already particularly vulnerable children, each one let down by the families into which they had been born.  They were placed with Mrs Frantzetis in an effort by the community to renurture them, and show them that family life need not be a ghastly charade.  By her actions, that effort failed and the miserable existence of the three children continued. The effects will be enduring.

[47]     The sentence appeal also fails.

Result

[48]     Appeals against conviction and sentence dismissed.

Stephen Kós J

Solicitors:

Crown Law, Wellington for Respondent