Mulford v The King
[2025] NZCA 444
•2 September 2025 at 11.30 am
NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF ANY
MATERIAL REFERRING TO SPECIFIED BACKGROUND FACTS
REMAINS IN FORCE: SEE [1], n 1 OF THIS JUDGMENT.
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA171/2025
[2025] NZCA 444
BETWEEN JESSICA MULFORD Appellant AND THE KING Respondent
| Hearing: | 29 July 2025 |
| Court: | French P, Jagose and Gault JJ |
| Counsel: | N M Dutch for Appellant |
| A J Ewing for Respondent | |
| Introduction |
Ms Mulford was convicted at trial of the manslaughter of a two year old child.
The trial Judge, Campbell J, sentenced her to a term of imprisonment of five years and
seven months.[1]
[1] R v Mulford [2025] NZHC 249 [sentencing notes]. At sentencing, the Judge made an order under
The jury also found Ms Mulford guilty of injuring the same child with intent
to injure by strangling her on an earlier occasion some five months prior to her death.
On that charge, the Judge convicted and discharged Ms Mulford due to the effect of
s 18 of the Sentencing Act 2002.
Ms Mulford now appeals the manslaughter sentence.
On her behalf, counsel Mr Dutch contended the sentence was manifestly
excessive because (1) the Judge’s starting point was too high and incorrectly took into
account the injuring with intent to injure offending; and (2) insufficient discounts were
given for personal mitigating factors. Mr Dutch invited us to set aside the sentence
and replace it with a prison term of two years and six or eight months.
Background
The child, whose name was Harlee-Rose Niven, was the daughter of
Ms Mulford’s partner. According to his evidence at trial, prior to Harlee-Rose’s birth
he and Ms Mulford had agreed their relationship would not be exclusive.
For the first 18 months of her life, Harlee-Rose lived with her mother. Then in
August 2021 she came to live with her father with the result that Ms Mulford at age 17
became a primary caregiver.
As the Crown acknowledges, Ms Mulford at times cared well for Harlee-Rose
but she also struggled with parenting and resented having to look after someone else’s
child.
On 9 November 2021, Ms Mulford strangled Harlee-Rose, injuring the back of
her neck and causing the whole of her face to swell and discolour. There was also
bruising to Harlee-Rose’s earlobe consistent with pinching. Harlee-Rose was taken to
hospital. Ms Mulford lied to the medical staff and others about the cause of the
injuries, falsely claiming that she had fallen from a deck.
Five months later, on 9 April 2022, Ms Mulford (by that time aged 18) killed
Harlee-Rose by applying such force to the child’s abdomen that it ruptured her internal
organs. The little girl suffered a large laceration to her liver, meaning (as the forensic
pathologist put it at trial) that the liver was effectively torn in two, as was her pancreas.
The small bowel was also lacerated. Harlee-Rose was rendered unconscious within
minutes and later died in hospital.
Ms Mulford again attempted to conceal what she had done.
At trial, her counsel suggested that it was either Ms Mulford’s partner who was
responsible for the child’s death or it was an accident; and that the injuries observed
on the earlier incident were the result of an accident or ibuprofen. Ms Mulford herself
did not give evidence but called evidence from two witnesses.
The jury acquitted Ms Mulford of murder but found her guilty on the
alternative charge of manslaughter and of injuring with intent to injure.
The sentencing
In imposing an end sentence of five years and seven months’ imprisonment,
the Judge’s methodology was as follows.
First, he adopted a starting point of seven years’ imprisonment,[2] having
[2] At [29].
identified the aggravating features of the offending as being the serious violence that
would have been required to cause the injuries, the extreme vulnerability of a
two-year-old, Ms Mulford’s breach of trust and her earlier act of strangling
Harlee-Rose.[3] In setting this starting point, the Judge referenced other cases which he considered to be comparable to Ms Mulford’s offending.[4] As is common practice
when sentencing for manslaughter, the Judge then cross-checked a starting point of
seven years by reference to the guideline decision of R v Taueki.[5] That decision
identifies aggravating features of violent offending and sets out sentencing bands with
a range of starting points for each. The Judge considered seven years was consistent
with band two offending under that decision which has a range of five to 10 years’
imprisonment.[6]
[3] At [27].
[4] At [22]–[26]. The Judge cited R v Wichman [2016] NZHC 1663; R v Ikamanu [2012] NZHC
[5] R v Taueki [2005] 3 NZLR 372 (CA).
[6] Sentencing notes, above n 1, at [30].
Turning to consider mitigating personal factors, the Judge then adjusted the
starting point downwards by a total of 20 per cent on account of Ms Mulford’s youth
(15 per cent) and certain background factors (five per cent).[7]
[7] At [39] and [44].
We now address the grounds of appeal.
Was a starting point of seven years’ imprisonment too high?
In contending that seven years was too high, Mr Dutch raised a number of
| points. | |
| [18] | The first related to the Judge’s summary of the facts of the offending regarding |
the method of injury. The Judge stated that although the precise mechanism of injury
was unknown, the injuries were consistent with Harlee-Rose having been stomped on,
kicked or punched in the abdomen.[8] Mr Dutch submits that this was “not the full
picture” because there was expert evidence that the injuries could also have been
caused by an adult kneeling on the child’s abdomen, or standing on it for a sustained
period.
[8] At [11].
We accept that the submission accurately states the evidence of the forensic
pathologist. However, the same expert witness also said that for organs to have been
pushed against the backbone causing the pancreas of a two-year-old to tear required a considerable amount of force from the outside. And, in our view, it is the extremity of
the violence required to inflict those injuries that mattered for sentencing purposes,
not the exact mechanism. We are therefore not persuaded the Judge’s statement took
the starting point out of range.
The second concern raised by Mr Dutch relates to the Judge treating the
strangulation as an aggravating feature.[9] In Mr Dutch’s submission, that was a breach
of s 18 of the Sentencing Act.
[9] At [27].
Section 18 (as it stood at the time) relevantly provided:[10]
[10] Section 18 was replaced on 29 June 2025 to provide for an exception when an “offender is already
18 Limitation on imprisonment of person under 18 years (1) No court may impose a sentence of imprisonment on an offender in respect of a particular offence, other than a category 4 offence, or a
category 3 offence for which the maximum penalty available is or
includes imprisonment for life or for at least 14 years, if, at the time
of the commission of the offence, the offender was under the age of
18 years.
As already mentioned, Ms Mulford was 17 at the time she strangled
Harlee-Rose and it was because of s 18 that Campbell J convicted and discharged her
on the injuring with intent to injure charge.[11]
[11] At [34].
Mr Dutch however says that s 18 not only precluded the Judge from imposing
a sentence of imprisonment for the injuring charge, it also precluded him from taking
the facts of that offending into account when setting the starting point for the
manslaughter charge. In his submission:
The sole effect [or] relevance of [the injuring charge] being before the jury
should have been to assist the jury with making a decision about the
manslaughter charge, not then used to uplift the sentencing.
It is correct that in Diaz v R this Court held that offending captured by s 18
should be disregarded in determining the length of a prison sentence for an offence
outside it. The Court stated:[12]
It would be inconsistent with the policy underpinning s 18 for the Court to
uplift a sentence of imprisonment by reference to a charge which, pursuant to
s 18, could not itself result in a sentence of imprisonment. Such an uplift
would result in the young person spending (additional) time in prison as a
result of the less serious charge: the very thing that s 18 is intended to
preclude.
[12] Diaz v R [2021] NZCA 426 at [32].
However, in our view, the circumstances of Diaz were very different to this
case. In Diaz, the first offence in time was an offence of grievous bodily harm
committed when Mr Diaz and two co-defendants had attacked another man causing
broken ribs and a collapsed lung.[13] A month or so later, in an unrelated family violence
incident, Mr Diaz had punched and kicked his partner’s face resulting in a charge of
injuring with intent.[14]
[13] At [4].
[14] At [5].
The grievous bodily harm offence was a category 3 offence with a maximum
penalty of 14 years’ imprisonment. That meant s 18 did not apply and a custodial
sentence was therefore available. That was not the position for the lesser offence of
injuring with intent. At sentencing, the Judge had taken the grievous bodily harm
offence as the lead offence and adopted a starting point of six years’ imprisonment,
which he then uplifted by six months for the injuring with intent charge.[15] As noted,
on appeal this Court said the uplift for the injuring with intent charge was precluded
by s 18 and it adjusted Mr Diaz’s sentence accordingly.[16]
[15] At [10].
[16] At [32].
In Diaz the offending caught by s 18 had no relevance to the culpability of the
lead offence. It was separate and distinct and so in a very real sense the uplift was in
essence the imposition of a prison sentence for that offence. In contrast, in the present
case, the less serious offence was directly and intimately connected with the more
serious offence. It was logically an aggravating feature of the manslaughter, and
without it, the later offending could properly have been seen as less culpable. As it was, it meant the killing was not a one-off loss of control but rather an escalation in a
pattern of violence.[17] Furthermore, it shows the killing could even have been avoided
had Ms Mulford told the truth about the earlier offending and sought greater support.
[17] See the reasoning in Woodcock v R [2010] NZCA 489 at [41].
The distinction we are making is also illustrated by the example given in a
High Court decision about an offender stealing a car for use in a subsequent aggravated
robbery.[18] The car conversion is clearly an aggravating feature of the robbery, the car
being used to facilitate the commission of the offence.[19] It cannot be, as the Judge put
it in that case, that s 18 was intended to prevent a court from considering as an
aggravating feature conduct that truly aggravated the culpability of another offence
just because it happened to also amount to a separate offence within s 18.[20]
[18] Matkovich v Police [2021] NZHC 1660.
[19] See R v Mako [2000] 2 NZLR 170 (CA) at [45].
[20] Matkovich v Police, above n 18, at [30].
We agree and conclude that in this case the Judge did not err in treating the
strangulation as an aggravating factor.
Finally, in determining whether the starting point was within range, we have
had regard to comparator cases involving a caregiver’s manslaughter of a child as a
result of a single violent incident.[21] As is only to be expected, these reveal a number
of different starting points, with the range generally being between five to 10 years’
imprisonment.[22] Of the various comparator cases, we agree with the Crown that the
three that most closely resemble the present facts are Robinson v R, Ikamanu v R and
R v Broadhurst. Those cases had starting points of seven and a half years, eight years,
and eight and a half years, respectively. All of those are consistent with the starting
point adopted in this case. In saying that, we have not overlooked the High Court
decision of R v Paea cited by Mr Dutch where a starting point of three years and nine
months’ imprisonment was adopted.[23] However, this Court has since described that
decision as an outlier.[24]
[21] Counsel helpfully referred us to R v Wichman, above n 4; R v Iorangi CA533/99, 30 March 2000;
[22] R v Roberts [2021] NZHC 146 at [20], citing R v L [2020] NZHC 2911 at [19].
[23] R v Paea, above n 21.
[24] See JB v R [2024] NZCA 669 at [50].
That the starting point of seven years was within range is also supported by the
case of S v R.[25] There, a seven-and-a-half-year starting point was upheld for offending
that fell within band two of Taueki as it involved a serious assault of a two-year-old
which, although not fatal, caused life-threatening brain injuries.[26]
Were the discounts for personal mitigating factors insufficient?
[25] S (CA632/2015) v R [2016] NZCA 367.
[26] At [56]–[57].
It is common ground that Ms Mulford was entitled to a youth discount. As the
Judge acknowledged, adolescent impulsiveness and lack of parenting skills were a
contributing factor to the offending.[27] Rejecting a Crown submission to the contrary,
he also accepted that despite Ms Mulford’s continued denial of responsibility she had
good prospects for rehabilitation.[28]
[27] Sentencing notes, above n 1, at [37].
[28] At [38].
In light of that, and the Judge’s further observation that adjustments of
10 per cent to 30 per cent are common for youth, Mr Dutch contends on appeal that
the appropriate discount for Ms Mulford was 30 per cent, as opposed to the Judge’s
15 per cent.[29]
[29] At [39].
We accept that another Judge may in the exercise of their discretion have given
a slightly greater discount on account of age. However, equally we are not persuaded
that an allowance of 15 per cent amounts to error warranting appellate intervention in
a case involving, as this one did, such extreme violence against a defenceless toddler.
It is well established that discounts, including discounts for youth, may be tempered
by the seriousness of the offending.[30] In that regard, we note this Court recently held
that a 10 per cent discount for background factors was appropriate in the case of a
20-year-old who killed a newborn baby.[31]
[30] Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [209], citing Carr v R [2020] NZCA 357
[31] JB v R, above n 24, at [69].
In addition to the youth discount, Mr Dutch also challenged the adequacy of
the other discount of five per cent given by the Judge for background factors.[32] In his
submission, they warranted a discount of between 10 and 15 per cent.
[32] Sentencing notes, above n 1, at [44].
This argument relates to two reports provided to the Judge at sentencing, one
from a psychologist and the other an alcohol and other drug (AOD) report. Both
reports referenced a history of drug and alcohol abuse with a self-reported cannabis
use described in the AOD report as being consistent with “a severe cannabis use
disorder”.
The psychologist’s report noted that although Ms Mulford had been raised by
a loving and supportive family, she talked of being bullied at primary school and
disclosed an incident of abuse at age 13. The report further noted that from an early
age, Ms Mulford had experienced emotional and psychological difficulties and in later
years developed behavioural issues that disrupted her secondary schooling.
The Judge said he was not satisfied having read the reports that Ms Mulford’s
addictions contributed in any way to the offending against Harlee-Rose and therefore
in his view they did not justify any adjustment to the starting point.[33]
[33] At [43].
In relation to Ms Mulford’s mental health issues, the Judge held that although
they could not be considered an operative cause of the offending, they were part of the
explanation for it. That was because, in his assessment, they were part of the reasons
Ms Mulford was unable to cope with the pressure of being a caregiver and so in that
sense they did contribute to the offending and therefore some allowance should be
made.[34] The Judge went on to say that any allowance should however be modest to
avoid double counting with the adjustment already made for youth and therefore
allowed for five per cent.
[34] At [44], citing Berkland v R, above n 30, at [109].
Turning first to the refusal to allow a discount for drug addiction, we consider
that in the absence of any evidence of a causal or even contributory nexus between the
addiction and the offending, the Judge was fully entitled to decline giving any discount
on account of the cannabis use.
In relation to the mental health issues, it is noteworthy that because Ms Mulford
denied killing Harlee-Rose, the psychologist report writer deliberately refrained from
giving an opinion on any purported causal nexus between her psychological
difficulties and the offending. Instead, the report was said to provide a psychological
formulation of the context within which to understand Ms Mulford’s functioning and
how she interacted within intimate relationships.
It is clear that the Judge was cognisant of the limitations of the report but also
took into account the contextual point made in the report and did so in a principled
way consistent with Berkland v R. As with the youth discount, we accept that another
Judge may have given a slightly greater discount but of itself that does not warrant
appellate intervention.
Finally, standing back and looking at the end sentence of five years and seven
months’ imprisonment, we are not persuaded having regard to all the circumstances of
both the offending and the offender that this was a manifestly excessive sentence.[35]
Outcome
[35] Criminal Procedure Act, s 250(2); and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482
The appeal is dismissed.
| Solicitors: |
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
| Judgment: | 2 September 2025 at 11.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by French P)
MULFORD v R [2025] NZCA 444 [2 September 2025]
s 205 of the Criminal Procedure Act 2011 prohibiting the publication of material referring to
specific background facts. We have not referred to these facts in our judgment but note that the
order remains in force.
2755; R v Pene [2010] NZCA 387; and Robinson v R [2011] NZCA 479.
serving a sentence of imprisonment for any other offence that they committed, in whole or in part,
before, with, or after the offence mentioned in subsection (1)”: see subs (4).
R v Ikamanu, above n 4 (and the subsequent appeal in Ikamanu v R [2013] NZCA 510); R v Pene,
above n 4; R v Paea [2016] NZHC 822; Robinson v R, above n 4; R v Broadhurst [2008] NZCA
454; and Woodcock v R, above n 17.
at [65].
at [33].
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