Prince v The Queen - [2019] NZHC 1402

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2019-404-000098

[2019] NZHC 1402

BETWEEN
BRENDA PRINCE

Appellant

AND

THE QUEEN

Respondent

Hearing: 17 June 2019

Appearances:

W T Nabney for Appellant L Nunweek for Crown

Judgment:

19 June 2019

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 19 June 2019 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:
W T Nabney, Barrister, Tauranga Keyes Fletcher Walker, Manukau

PRINCE v R [2019] NZHC 1402 [19 June 2019]

Introduction

[1] On 27 July 2018, the appellant, Brenda Prince, was convicted in the District Court at Manukau after pleading guilty to four charges of ill-treatment of a child.1 Judge David J Harvey imposed a sentence of 33 months’ imprisonment.

[2] Ms Prince appeals the sentence on the grounds that the end sentence was manifestly excessive. Ms Prince says the starting point adopted by Judge Harvey was too high and the Judge erred in failing to provide sufficient discounts for Ms Prince’s efforts at rehabilitation and in recognition of Ms Prince’s diagnoses of depression and anxiety.

[3] The Crown opposes Ms Prince’s appeal and says the sentence was not manifestly excessive.

The facts

[4] Ms Prince resided with her then partner, James Harris, and her four children at a rental address in a small community in South Auckland between March 2012 and November 2015. At the time of the offending the four children were aged two, five, seven and nine. Mr Harris is the father of the two youngest children.

[5] Social workers from Child Youth and Family (now Oranga Tamariki) visited the residence in September 2015 and warned Ms Prince that the hazardous living conditions in which she and the children resided needed to be addressed. A follow up visit occurred in November 2015 when it was noted that the living conditions had worsened. The four children were removed from the address.

[6] Mr Harris and Ms Prince were each charged with four charges of ill treatment of a child – one charge with respect to each child – namely, that they intentionally engaged in conduct that was likely to cause suffering to or adverse effects to the child and the conduct engaged in was a major departure from the standard of care to be expected of a reasonable person.2

1 Crimes Act 1961, s 195(1). Maximum penalty of 10 years’ imprisonment.
2 Crimes Act 1961, s 195(1).

[7] The ill treatment that formed the basis of the charges entailed forcing the children to live in a filthy, unsanitary and dangerous environment, which included:

(a)In two cases, locking the children in their bedrooms and denying them access to the toilet, forcing them to urinate and defecate in the bedroom, with the faeces subsequently smeared on the walls;

(b)In two cases, sleeping in a bedroom that contained and…

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 Prince v The Queen

Details

AGLC: Prince v The Queen [2019] NZHC 1402
Case: [2019] NZHC 1402
Decision Date: 19 June 2019

CaseChat Overview and Summary

Brenda Prince appeals her sentence of 33 months’ imprisonment imposed by Judge David Harvey in the District Court at Manukau. Ms Prince was convicted of four charges of ill-treatment of a child. She argues that the sentence was manifestly excessive, contending that the starting point was too high and the sentence should have reflected her efforts at rehabilitation and her diagnoses of depression and anxiety. The Crown opposes the appeal and argues that the sentence was not manifestly excessive.

The court was required to determine whether the starting point adopted by Judge Harvey was too high and if the deductions for personal mitigating factors were adequate. The court also had to consider whether a deduction should have been provided for Ms Prince's mental health concerns and if the end sentence was manifestly excessive.

The court found that Judge Harvey erred in adopting a starting point of four and a half years’ imprisonment, which was higher than the appropriate range. The court considered a starting point of between three and four years’ imprisonment to be appropriate, given the seriousness of the neglect and the starting points adopted in similar cases decided after the maximum penalty was increased. The court found that the deductions for personal mitigating factors were appropriate and there was no basis for awarding Ms Prince a further discount for her mental health concerns. The court concluded that the end sentence imposed by Judge Harvey was manifestly excessive, as it constituted just over 15 per cent of the end sentence.

As a result, the appeal was allowed, the sentence imposed by Judge Harvey was set aside, and a sentence of 28 months’ imprisonment was imposed.

Orders