M v The Queen - [2016] NZSC 72

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

NOTE: THE HIGH COURT ORDER PROHIBITING PUBLICATION OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPLICANT REMAINS IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

SC 31/2016
[2016] NZSC 72

BETWEEN	M (SC 31/2016) Applicant
AND	THE QUEEN Respondent

Court:	Elias CJ, Arnold and O'Regan JJ
Counsel:	M J English for Applicant A J Ewing for Respondent
Judgment:	20 June 2016

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant is the father of twin boys who were physically abused when aged between eight and ten weeks. He and his partner, the mother of the boys, pleaded guilty to two charges under s 195 of the Crimes Act 1961 of neglecting a child by omitting to discharge their legal duty, the omission of which is likely to cause suffering to the children. The omission was the failure to obtain medical treatment for the twins. The evidence was that the injuries to the twins were significant (and that they would have been in considerable pain for some days before medical treatment was sought). The injuries had been inflicted while the twins were in the joint care of the applicant and his partner, but it could not be proved who had inflicted them.
Courtney J sentenced the applicant to a term of imprisonment of four years and four months, and sentenced the applicant’s partner to a term of imprisonment of three years and six months.[1] Both appealed against sentence to the Court of Appeal, but the appeals were dismissed.[2] The applicant seeks leave to appeal to this Court against the Court of Appeal decision.
[1]R v DK [2015] NZHC 2137.
[2]M(CA 559/2015) v R [2016] NZCA 53 (Randerson, Venning and Collins JJ) [Court of Appeal judgment].
The applicant identifies three matters that he seeks to argue if leave to appeal is granted.
The first arises from the Court of Appeal’s rejection of an argument made to that Court in support of the appeal. The applicant’s counsel submitted that the starting point taken by the sentencing Judge in his case (six years’ imprisonment) was excessive by comparison with sentences imposed in relation to offences under s 188(1) of the Crimes Act or other offences of serious violence.[3] The Court said it did not derive any assistance from that comparison noting that s 195 was targeted specifically at children and vulnerable adults and reflected a Parliamentary intention to provide specific protection in that context against violence or neglect.[4]
[3]As a result of mathematical errors in the calculation of the end sentence, the effective starting point was five years and six months: Court of Appeal judgment at [14].
[4]Court of Appeal judgment at [25]. Section 188 deals with injuring with intent to cause grievous bodily harm or with intent to injure or with reckless disregard.
The applicant wishes to argue that the…

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.

Continue reading M v The Queen

Details

AGLC: M v The Queen [2016] NZSC 72
Case: [2016] NZSC 72
Decision Date: 20 June 2016

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an application for leave to appeal from an applicant who had pleaded guilty to charges of neglecting his twin boys, resulting in significant physical injury to the children. The applicant and his partner, the mother of the boys, had been sentenced to imprisonment after being found guilty of neglecting their children by failing to obtain medical treatment. Both parties appealed against their sentences to the Court of Appeal, which dismissed the appeals. The applicant now seeks leave to appeal to the Supreme Court against the Court of Appeal's decision. The legal issues before the court involved the starting point for sentencing under section 195 of the Crimes Act 1961, the principle of criminal liability when it is not possible to prove who committed an act, and the assessment of culpability between the applicant and his partner. The court considered the arguments raised by the applicant but found that none of the grounds for appeal raised issues of general or public importance, nor did they indicate a miscarriage of justice. The Supreme Court dismissed the application for leave to appeal.

The court's reasoning focused on the specific context of the offending under section 195 of the Crimes Act, which targets violence or neglect against children and vulnerable adults. The court noted that the maximum penalty for the offence applies both to acts of commission and neglect, and it was not a departure from the principle of criminal liability to prosecute those responsible for a child's care when it is not possible to prove who inflicted the injuries. The court also found that the applicant and his partner were equally culpable because both had opportunities to identify the injuries and seek medical treatment. The Supreme Court concluded that the Court of Appeal's assessment of the case was correct and that there was no basis for granting leave to appeal.

The Supreme Court dismissed the application for leave to appeal, and no further appeal will be heard. The sentences imposed by the Court of Appeal remain in place.

Orders