Prince v The Queen
[2019] NZHC 1402
•19 June 2019
THIS IS AN ANONYMISED VERSION OF THE JUDGMENT AND MAY BE PUBLISHED IN THIS FORM 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 smelt of urine and faeces, and contained flies;
(c)In three cases, forcing the children to sleep on urine-soaked beds with rubbish bags as sheets;
(d)In three cases, leaving rubbish, including soiled nappies piled up in the house.
[8] Ms Prince pleaded guilty to the four charges. Mr Harris, who was also charged with sexual offending against the two older children, was sentenced on 19 February 2019, to a term of imprisonment of 13 and a half years.
District Court decision
[9] Judge Harvey identified as relevant principles of sentencing in s 8 of the Sentencing Act 2002 the desire to hold the offender accountable, to denounce the offending conduct and to deter others from behaving in a similar manner. He also had regard to s 9A of the Sentencing Act 2002 which applies to cases concerning the neglect of children under the age of 14. Judge Harvey considered the relevant factors under s 9A to be the defencelessness of the victims, the harm caused by the offending, the long-term physical or psychological effects and the magnitude of the breach of trust.
[10] In addition to these factors, Judge Harvey identified as further aggravating factors: Ms Prince’s clear knowledge of the squalid conditions in which the children and Ms Prince herself were living, the emotional harm inflicted on the children, the
fact that Ms Prince is the mother of the children, and that no steps were taken to improve the living conditions following the warning from Oranga Tamariki.
[11] Judge Harvey noted that the maximum penalty for this offending had been increased from five years to 10 year’s imprisonment, which, he considered, recognised the seriousness of the offending and concern that children and vulnerable adults require special protection. He held that while the children had not suffered any physical harm there must have been consequential emotional harm in terms of what their expectations of what life should be like in a safe, sanitary and secure home.
[12] Judge Harvey had regard to the submissions of counsel for Ms Prince and counsel for the Crown, who had suggested starting points of two years and between three and a half and four years respectively. The Judge said he considered that in all the circumstances of this case, Ms Prince’s offending occupied “a spot of high level seriousness”. The Judge said he had to reflect the recognition that children are the future of our society and species and to denounce in clear and unequivocal terms, and in the strongest possible terms, that this kind of offending will be met with a stern response. The Judge adopted a starting point of four and a half years.
[13] Judge Harvey made a deduction of 15 per cent to reflect that Ms Prince was not “by nature” a criminal and that this sort of behaviour was not an “integral part of [her] make-up”, a further reduction of five months to recognise the efforts Ms Prince had made towards rehabilitation, and a further deduction of 20 per cent for Ms Prince’s early guilty plea. This resulted in an end sentence of 33 months which the Judge noted did not fall within the bounds for a sentence of home detention or community detention.
Submissions for Ms Prince
[14] Mr Nabney for Ms Prince accepts that a starting point of a term of imprisonment was inevitable given the seriousness of the neglect of Ms Prince’s children. Mr Nabney submits, however, that the end sentence of 33 months’ imprisonment is manifestly excessive, and that Judge Harvey adopted a starting point that was too high and gave insufficient credit for the steps taken by Ms Prince after being charged and for her diagnoses of depression and anxiety.
[15] Mr Nabney says the starting point adopted by Judge Harvey is inconsistent with starting points adopted in other cases of neglect that were decided after the maximum penalty was increased to 10 years’ imprisonment in 2012. Mr Nabney refers to starting points adopted in cases which involved serious injury to children: R v Hall, where the starting point was four years’ imprisonment when serious injuries had been inflicted on a new born child over a four month period;3 M v R, a decision of the Court of Appeal in 2016, where the starting point was six years’ imprisonment when two infant children had suffered serious injuries which included a fracture to the skull of one child and multiple fractures to the legs, arms and ribs of both children,4 and another decision of the Court of Appeal called M v R adopted in 2017, where the starting point was two years’ imprisonment when a child had been tied up with electrical cords and often forced to take cold baths that left her physically injured.5
[16] Mr Nabney submits that, consistently with those decisions, the starting point in the present case was too high given the absence of any evidence that Ms Prince’s children had suffered physical harm or had become unwell despite the presence of faeces, urine and flies in their bedrooms. He says a starting point of three years’ imprisonment was more appropriate given that the offending involved a single course of conduct, even if there were four charges in respect of each of the four children.
[17] Mr Nabney also submits that Ms Prince should have received a greater discount to reflect her actions following being charged and says that Ms Prince had engaged in significant rehabilitation to address her parenting and drug use. Mr Nabney also submits that Ms Prince ought to have received a further discount to reflect the steps she had taken to address her mental health issues.
[18] In summary, Mr Nabney recommends a starting point of 3 years imprisonment, a 15 to 20 percent reduction to reflect Ms Prince’s rehabilitative efforts, a further deduction for good character and a 20 per cent deduction for the guilty plea. This would lead to an end sentence of between 21 and 22 months’ imprisonment and would mean Ms Prince is eligible to be considered for a sentence of home detention. Mr
3 R v Hall [2012] NZCA 518.
4 M v R [2016] NZCA 53.
5 M v R [2017] NZCA 274.
Nabney further submits that if the Court accepts his submissions as to the appropriate sentence, Ms Prince will have served her sentence because she has already been imprisoned for 11 and a half months.
Submissions for the Crown
[19]The Crown opposes the appeal.
[20] Ms Nunweek for the Crown submits that the end sentence of 33 months’ imprisonment was appropriate to reflect the scale and duration of the offending against four separate victims, that the discounts allowed by Judge Harvey were appropriate given Ms Prince’s lack of insight and her minimisation of the seriousness of her offending, and that the psychologist’s report prepared under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP (MIP) Act) provides no grounds on which Ms Prince should be given further discounts.
[21] Ms Nunweek submits that a starting point of four and a half years’ imprisonment for neglect of four victims is consistent with the starting point of two years in the 2017 decision of M v R,6 which involved a single victim, and the starting point of six years in the 2016 decision of M v R which involved two victims.7 Ms Nunweek also submits that it would have been open to Judge Harvey to have set a starting point of two years’ imprisonment for neglect of either of the older children and to have adopted a starting point of four and a half years for all four children for reasons of totality.
[22] Ms Nunweek further submits that in the 2016 decision of M v R the Court of Appeal emphasised that the amendments made to s 195 in 2012 meant that the section made no differentiation in the maximum penalty between those who cause a child’s injury or death and those who fail to perform their legal duty to care for the child. Accordingly, she says there is no basis for distinguishing between the present case and R v Hall and the two decisions of M v R as proposed by Mr Nabney just because the offending by Ms Prince did not involve an active assault.
6 M v R [2017] NZCA 274.
7 M v R [2016] NZCA 53.
Relevant law
[23] Under s 250(2) of the Criminal Procedure Act 2011, I must allow the appeal against sentence if I am satisfied that there is an error in the sentence, and that a different sentence ought to be imposed. In any other case I must dismiss the appeal.8
[24] Under s 251(1) of the Criminal Procedure Act, if a first appeal court allows an appeal against sentence it must set aside the sentence and impose another sentence that it considers appropriate.
[25] As the Court of Appeal said in Tutakangahau v R, s 250 of the Criminal Procedure Act synthesises and continues the approach that was previously set out in the Crimes Act 1961 and the Summary Proceedings Act 1957 that required both the identification of an error and a need for the appeal court to be satisfied that a different sentence “should” be imposed.9 The Court of Appeal in Tutakangahau also confirmed that if a starting point has been adopted outside the available range, there has been an error but that the Court should not intervene unless satisfied that the sentence imposed was “manifestly excessive”.10 However, the Court of Appeal in R v Mita has said that whether a sentence reaches the measure of manifestly excessive involves an assessment of whether, having regard to both the offending and the offender, the end sentence is manifestly excessive. As such the structure of the sentence is of little consequence.11
Analysis
Was the starting point adopted too high?
[26]In considering where to set the starting point, Judge Harvey had regard to:
(a)the sentencing principles in s 8 of the Sentencing Act of holding Ms Prince accountable, denouncing her conduct and deterring others from behaving in a similar manner;
8 Criminal Procedure Act 2011, s 250(3).
9 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27].
10 At [34]-[35] and [41].
11 Mita v R [2012] NZCA 137.
(b)the aggravating factors in s 9A of the Sentencing Act of the defencelessness of the children, any serious or long-term physical or psychological effect on the children, and the magnitude of the breach of the relationship of trust between the children and Ms Prince;
(c)other aggravating factors such as the fact Ms Prince must have been aware the children living in squalid conditions because she was living with them and Oranga Tamariki had told her to clean up the property and Ms Prince had still not taken any steps to improve the living conditions of her children following the warning from Oranga Tamariki.
[27] It is apparent, however, that Judge Harvey ascribed particular importance to the need to denounce in clear, unequivocal and the strongest possible terms that this type of offending will be met with a stern response. It is also apparent that Judge Harvey did not consider that the cases to which the Crown had referred were of much assistance “primarily because a couple of them were decided prior to the increase in penalties.” Accordingly, the Judge adopted a starting point that was higher than the upper end of the range submitted as appropriate by the Crown and more than double the maximum submitted as appropriate by counsel for Ms Prince.
[28] Judge Harvey’s focus on the need for a stern response is consistent with the observation of the Court of Appeal in the 2016 decision of M v R that in amending s 195 Parliament signalled in the clearest possible terms that the Courts are expected to respond to offences involving the ill-treatment and neglect of children by imposing penalties that reflect the seriousness of the offending.12 I also agree with Ms Nunweek that the Court of Appeal made it clear in that case that there is no differentiation in the maximum penalty between those who cause injury and death and those who fail to perform their legal duty of care to the child.
12 M v R [2016] NZCA 53 at [32].
[29] Even so, it is relevant that when assessing the appropriateness of the starting point set in that case the Court of Appeal in the 2016 decision of M v R had regard to the seriousness of the injuries as well as to other factors such as the age of the victims and whether the injuries of the victims would have gone unnoticed. That decision, as well as the decision of the Court of Appeal in the 2017 decision of M v R and the decision of the High Court in Adams v New Zealand Police, another case decided after the doubling of the maximum penalty, show that the Courts have imposed stricter sentences where the conduct has involved significant physical mistreatment.
[30] In the present case, Judge Harvey acknowledged that the children had suffered no physical harm but, understandably, assumed that there must have been consequential emotional harm. The Judge did not refer to any evidence to support that assumption, notwithstanding the victim impact statement prepared by the caregiver to the two older children that was before the Court and which shows the behavioural impacts on those children of the treatment to which they were subjected. However, as Mr Nabney noted in his oral submissions, it is impossible to know the extent to which those impacts were caused by the neglect of Ms Prince and the extent to which they are the consequence of Mr Harris’s sexual offending.
[31] In any event, I consider that the Crown was correct in the position it took before Judge Harvey - that the top end of the appropriate range for the starting point was four years – having regard to cases decided after the doubling of the maximum penalty under s 195 of the Crimes Act. While each case must be considered in its own terms, I consider that a starting point of between three and four years’ imprisonment would have been appropriate, in view of the starting points adopted in the two M v R decisions and that adopted in Adams v New Zealand Police. In Adams, the High Court upheld a starting point of two and a half years following conviction of a parent on two representative charges of ill-treatment of a child and one of assault for force-feeding, smacking and hitting a child and leaving the child on the toilet for several hours at a time, and denying him proper fluid intakes over a period of approximately five years.13
13 Adams v New Zealand Police [2014] NZHC 42.
[32] The offending in the present case was more serious than that in the 2017 M v R decision and in Adams, but closer to that end of the spectrum than the six year starting point adopted in the 2016 M v R decision. From the perspective of the offender, Ms Prince’s behaviour was more like that of the offenders in the 2017 M v R decision and Adams and was of a different order from that of the offenders in the 2016 M v R decision.
[33] For these reasons, I consider that Judge Harvey did err in adopting a starting point of four and a half years’ imprisonment.
Were the deductions for personal mitigating factors inadequate?
[34] Judge Harvey gave Ms Prince a 15 per cent discount for prior good character and an additional five month discount to reflect Ms Prince’s rehabilitative efforts. I consider a 15 per cent reduction for good character to be reasonably generous bearing in mind Ms Prince’s serious neglect of her children and her serial addiction to cannabis which was a major factor in that neglect. I also consider the further discount of five months, or approximately 11 per cent of the reduced sentence following the 15 per cent reduction, to be appropriate bearing in mind that, as recorded in the report prepared under s 38 of the CP (MIP) Act, Ms Prince failed to complete the drug and alcohol course she had commenced after her arrest and also was not a regular attender at the Women’s Group, despite having indicated that she had completed the course.
[35] It is also relevant that the writers of the two pre-sentence reports prepared on Ms Prince and the writer of the report prepared under s 38 of the CP (MIP) Act recorded that Ms Prince lacked insight into her role in the offending and resorted to blaming her children and her drug use. The writer of the later pre-sentence report noted that Ms Prince had begun to accept more responsibility for her actions but cautioned that Ms Prince may have become versed in saying what the interviewer wanted to hear.
[36] For these reasons, I see no basis for increasing either of the personal circumstances discounts made by Judge Harvey.
Should a deduction have been provided for the appellants mental health concerns?
[37] I agree with Ms Nunweek that there is no basis for awarding Ms Prince a further discount to take account of her mental health issues. Notwithstanding Ms Prince’s reasonably high score on the assessment for Substance Use Disorder, the report on Ms Prince prepared under s 38 of the CP (MIP) Act was clear in its assessment that this disorder was in remission and that Ms Prince did not meet the criteria for mental disorder as defined under s 2 of the Mental Health (Compulsory Assessment and Treatment) Act 1992. Notwithstanding Ms Prince’s own difficult upbringing and the presence of mental illness, there is nothing in the s 38 report that suggests that Ms Prince’s mental illness was causative of her offending.
Was the end sentence manifestly excessive?
[38] If I adopt a starting point at the top end of the three to four year range I consider appropriate, i.e. four years, and apply the same discounts applied by Judge Harvey of 15 per cent for good character, five months for efforts at rehabilitation and 20 per cent for Ms Prince’s guilty plea, that results in an end sentence of 28 months’ imprisonment.
[39] The question, therefore is whether a difference of five months meets the criterion of being “manifestly excessive”. Considered on the basis of months alone, to say the sentence was manifestly excessive for imposing an additional five months’ imprisonment for offending of such seriousness may seem odd. However, when five months is considered as a percentage of the end sentence imposed by Judge Harvey, that period constitutes just over 15 per cent of the end sentence. That is significant. Accordingly, I am satisfied that the sentence imposed by Judge Harvey meets the criterion of being manifestly excessive and requires the Court to impose a different sentence.
Result
For the reasons set out above:
(a)The appeal is allowed;
(b)The sentence imposed by Judge Harvey is set aside and a sentence of 28 months’ imprisonment is imposed.
G J van Bohemen J
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