Nohe v The Queen

[2019] NZHC 1771

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2019-419-0044

[2019] NZHC 1771

BETWEEN

FAVONA RAHERA NOHE

Appellant

AND

THE QUEEN

Respondent

Hearing:	24 July 2019
Appearances:	M L Dillon for Appellant L C Hann for Respondent
Judgment:	25 July 2019

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 25 July 2019 at 4.45 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors:           Almao Douch, Crown Solicitor, Hamilton Counsel:     M L Dillon, Hamilton

NOHE v R [2019] NZHC 1771 [25 July 2019]

[1]    Ms Nohe appeals against sentence on six charges of ill-treatment/neglect of a child.1 On 7 June 2019, Judge Spear sentenced Ms Nohe to 15 months’ imprisonment, giving her leave to apply for home detention if, and only if, such was to enable her to enter into a residential treatment programme acceptable to the Court.2

[2]    The Judge arrived at the end sentence by adopting a starting point of 15 months’ imprisonment, uplifting by three months for previous convictions for the same type of offending, and allowing a 15 per cent, or three-month, credit for guilty pleas.

[3]    On appeal, Mr Dillon, counsel for Ms Nohe, submits that the Judge’s starting point was too high and should  have  been  four  months’  imprisonment,  not  15.  Mr Dillon also submits that Ms Nohe should have received a reduction of 20 to 25 per cent for her guilty pleas. If I accepted Mr Dillon’s starting point and gave a 20 per cent reduction for her pleas, Ms Nohe’s end sentence would be five months, two weeks’ imprisonment.

[4]    The Crown opposes the appeal and submits the sentence was within the available range.

Background

[5]I take what follows from the summary of facts.3

[6]    The offending occurred on 27 February 2018. Ms Nohe went to her brother and his partner’s house that morning. They have six children, aged one, three, four, six, seven and nine. The parents left the house, saying that they were going to get food, and leaving Ms Nohe in charge. They did not return.

1      Crimes Act 1969, s 195(1) and (2)(a).

2      No application for home detention has been made. Counsel for Ms Nohe informed me that Odyssey House is willing to admit Ms Nohe to one of their residential programmes, but unfortunately space is unlikely to be available until the end of 2019. Plainly it would be desirable if an earlier admission could be accommodated.

3      Ms Nohe’s brother and partner are also facing charges in respect of this offending and have pleaded not guilty. The facts that emerge at trial as regards their involvement may be different from those in the agreed summary.

[7]    The older children went to school. At some point after this, Ms Nohe inhaled glue which incapacitated her. When the older children arrived home from school shortly before 3 pm, they found Ms Nohe intoxicated and wholly incapable of supervising or feeding the children. The nine-year-old attempted to cook the other children dinner, unsuccessfully.

[8]    Shortly before 9 pm, and even though the parents had not returned, Ms Nohe left the address on foot. The six children followed, anxious at the prospect of being left alone. The older children were pushing the younger ones in a shopping trolley. The three and four-year-olds were naked, the one-year old baby was in a badly soiled nappy and the six and seven-year olds were naked from the waist up.

[9]    A passing motorist called the police, who found Ms Nohe so intoxicated she was struggling to walk or talk, with glue residue around her mouth and a bag of glue tucked into her shirt. The children were hungry and cold. When the police went to the house, there was no edible food and there were faeces and kitchen knives on the floor. They found glue residue on some of the children or their clothes, indicating  Ms Nohe had inhaled it in close  proximity to  them.  This  is  significant  because Ms Nohe has three prior convictions for this offence, two in respect of offending in 2014 and one in 2015. Each concerned or stemmed from her giving her 13 or 14-year- old son glue to sniff. Ms Nohe was sentenced to three months’ imprisonment on each of the 2014 charges and nine months’ imprisonment on the 2015 one.

Starting point

[10]   The maximum term of imprisonment under s 195 is 10 years. There are few cases to draw on in sentencing for this type of s 195 offending. Many of the cases concern acts of brutality and/or, cruelty and/or neglect inflicted over a substantial period of time.4 This is not such a case.

4      P (CA866/2013) v R [2014] NZCA 211; Maulolo v R [2014] NZCA 439; Adams v New Zealand Police [2014] NZHC 42; Frantzetis v R [2015] NZCA 710; M (CA559/2015) v R [2016] NZCA 53; and Prince v R [2019] NZHC 1402.

[11]   In support of his submission for such a reduced starting point, Mr Dillon submits that Ms Nohe was no more culpable than the offenders in Bentley v R and JF v New Zealand Police.5

[12]   In each of these cases, the appellants (each appealed against conviction, not sentence) drove whilst significantly intoxicated, had a child in the car, lost control and crashed. Neither child suffered permanent injury. In each case, the appellant pleaded guilty and were sentenced in respect of their driving offences, and were convicted after trial on one charge under s 195. JF was sentenced to 150 hours’ community work on the s 195 charge and Ms Bentley to four months’ community detention and nine months’ supervision on the s 195 charge. These cases are different from the present of course, but particularly because in each the appellant drove in response to unforeseen circumstances and, it is fair to say, acting in what she considered to be in her, and her child’s, best interests.

[13]   The Crown referred me to Gear v New Zealand Police.6 The offending in that case occurred in 2001 and 2002, the significance of which is that, at that time, the maximum term for offending under s 195 was five years’ imprisonment. Ms Gear had a gambling addiction and often stayed “a number of days” at gambling venues largely leaving her three youngest children (aged five, seven and nine) alone. The lack of care and supervision led to the children developing various health problems. When the police were notified, and Child Youth & Family Services (as it then was) took the children into care, the children had not eaten for some considerable time, one had infected wounds on his hand, and the house, including the toilet, filthy. Ms Gear pleaded guilty at an early stage, had no prior convictions, was remorseful and was sentenced to 18 months’ imprisonment. On appeal, Heath J said he regarded the sentence as being “unduly lenient”.7

[14]   The differences between Gear and Ms Nohe’s case is that the offending in Ms Nohe’s case was short lived, and the children were not her own, although in the circumstances I am not persuaded that counts for much.

5      Bentley v R [2018] NZCA 371; and JF v New Zealand Police [2013] NZHC 2729.

6      Gear v New Zealand Police HC Auckland CRI-2003-404-376, 20 February 2004.

7 At [17].

[15]   In the present case, the factors relevant to culpability are the number of children involved; the fact that, of her own volition, Ms Nohe incapacitated herself by sniffing glue; she failed to pick up the knives (if nothing else) off the floor; she allowed the nine-year-old to try to cook dinner; and she then sought to abandon the children. Each of these presented an obvious hazard to the children’s safety. Whatever the acts or omissions of the children’s parents, Ms Nohe’s obligation when left in charge was to look after the children, whether she liked it or not, and to refrain from anything which would interfere with her doing so. It is a matter of good luck, rather than good management, that the children emerged from the day unscathed.

[16]   All of that said, I am inclined to the view that a 15-month starting point was too high. The offending was relatively short lived and, as I have said, did not involve cruelty or brutality. Equally, I am not persuaded a starting point of four months or anything close to it would be sufficient. I consider a starting point of 12 months’ imprisonment is required.

[17]   I decline to increase the discount for the guilty plea. Ms Nohe’s offending was obvious but, despite that, she maintained not guilty pleas for some time. A 15 per cent reduction was sufficient in the circumstances.

[18]   I have considered whether the uplift for prior relevant offending should have been higher, and so offset the reduction that might be due on the starting point. In the circumstances I am not persuaded it should be. Three months is proportionate to the starting point. The means an end sentence of 12 months’ imprisonment, which I consider a proper response to the offending.

Peters J