R v Akau'ola

[2013] NZHC 2007

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-092-015610 [2013] NZHC 2007

THE QUEEN

v

KULUKORA KYLIE AKAU'OLA

Charge:

Plea:

Manslaughter

Guilty

Appearances:

A Prasad for Crown
G J Newell for Prisoner

Sentenced:

9 August 2013

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            G J Newell, Auckland

R v AKAU'OLA [2013] NZHC 2007 [9 August 2013]

[1]      Kulukora Kylie Akau’ola, you are for sentence this morning having pleaded guilty to manslaughter.

Background

[2]      This is a tragic case for you, for your family and for the victim.  The victim was your newborn baby.

[3]      Early in the morning of 26 May 2011 you went into labour.  Although you lived at home with your mother and father they were not aware you were pregnant. You and the father, Mr Afoa had hidden the fact of pregnancy from them and from his family.  You already had two other children at the time, one three years old and one, one year old. Mr Afoa is not their father.

[4]      You tried to contact Mr Afoa that day but he did not think he could get out of his house undetected. Then later he fell asleep for a time.  He then took his nephews and nieces to school and could not keep in touch with you.  By the time he was able to contact you and asked if he could come over you were in an advanced stage of labour.

[5]      To conceal the birth from your mother you went to the bathroom, turned on music, turned on the shower over the bath, undressed and got into the bath. You then delivered your baby boy by yourself in the bath.  You picked him up from the floor of the bath and tapped him gently on the back.  The baby was alive and cried.  You then cut the umbilical cord with scissors.

[6]      The baby continued crying.  To prevent him from crying and to avoid your mother hearing him, you then wrapped a towel tightly around the baby’s body and face.  You took the baby from the bathroom into the bedroom and lay him on your bed.  You did not intend to kill the baby but you wanted to stop him crying.  By the time the baby had been carried to the bedroom he was not breathing.  You believed he had died.  However, he was at that time likely unconscious and dying.  Newborn babies breathe through their nose.   If the nose is obstructed they are unable to breathe.    Initially they  will  become unconscious and  then die  within  10  to  20 minutes.

[7]      When in the bedroom you wrapped a child’s long sleeve shirt around the baby’s face and head and tied it tightly so you did not have to see the baby’s face. You then wrapped the baby in another towel and a red blanket.   You placed the blanket into a black bag and put the baby in a wardrobe in your bedroom.  During this the baby suffocated and died.

[8]      You did not tell your family what had happened but arranged for Mr Afoa to come over and asked him to help you bury the baby.   You had to wait for your parents to leave the house to do that.   You did it about four days later.   In the meantime the baby remained in the bag in the wardrobe.

[9]      The police received information on 1 June 2011 that a baby was buried in the back yard of your property.  They spoke to Mr Afoa and confirmed the position.  On

2 June, when the police spoke to you, you admitted giving birth to the baby.  Initially you said the baby was still born but later accepted the baby was born alive and had cried.

Your situation

[10]     At the age of 24 you have no previous convictions of any kind.  You are of Cook Island descent. All of your family is in New Zealand. You, your two children and your brother lived with your parents.  You describe your childhood as great and normal.  You describe your parents as good people but strict.  You were particularly concerned about what your father would think of you having a third child. You were only 19 years old when you had your first child, a daughter, who is now five.  You had your second child when you were 21.  He is now three years old.  You do not know who the father of those children are.  You have had an on and off relationship with Mr Afoa, the father of the baby you killed, since 2007.

[11]     It is apparent you were concerned about bringing shame on the family.  For that reason did not feel you could tell them about your pregnancy.  You told the probation officer that earlier in the day that you gave birth you had considered confiding in your family about the impending birth but they had just received news of a near relative’s death by suicide.  Your parents were very upset by that and you could not bring it on yourself to tell them anything about your situation.

[12]     You expressed remorse to the probation officer about what you had done but, in the officer’s assessment, you seemed emotionally guarded and almost numb when telling your story. You were reluctant to talk about the baby.

[13]     The probation officer considers that your mental and emotional state drove you to offend in this way.  Also contributing to your actions were relationship issues and stresses, your fear of your family’s reaction and just your general insecurity.

[14]     Following the offending you became withdrawn and felt isolated.

[15]     In summary the probation officer says you presented as an insecure young woman without any direction in life.  You have never had a job.  Your lifestyle revolved hanging around with friends.  During your pregnancy you had not received any support from any support services as you had not disclosed your pregnancy to anyone. The probation officer considers you have little insight into your offending.

[16]    In his helpful and thoughtful submissions on your behalf Mr Newell has emphasised that at the time during your pregnancy you felt scared, stressed and depressed. You had intermittent ill-formed suicidal ideations. This was compounded by the fact that immediately prior to the offending your cousin, with whom you had been raised, had committed suicide. You felt isolated and alone.

[17]     Mr Newell also referred to the psychiatric reports he had obtained on your behalf.   The psychiatrist confirms that the description of your symptoms are consistent with depression, so that clinically you were moderately depressed at the time you killed your baby.

[18]     Against that background I turn to the sentence the Court must impose on you.

[19]     The Crown submit a starting point for sentence should be in the vicinity of

five years’ imprisonment with a reduction to take account of your guilty plea.

[20]     Mr Newell argues for a starting point of three years’ imprisonment with a reduction of 25 per cent for your guilty plea and argues for a sentence of home detention.

[21]     I make it clear that the sentence the Court must impose on you is not meant to reflect the value of your baby’s life.  The sentence is society’s response through the judicial system to your actions having regard to all relevant circumstances.

[22]     In arriving at that sentence I am required to take into account a number of factors.  The first is to hold you accountable for the fact that you have killed your baby.  Next, to promote in you a sense of responsibility for and acknowledgement of the seriousness and the harm of such actions.  The sentence should denounce your conduct of killing a vulnerable and defenceless baby.  It is also important that, to the extent it can, the sentence should deter others from committing similar offending.

[23]     I am also directed to consider other people affected by your offending, in this case the father of the baby.

[24]     I am also required to consider the principles of sentencing, including the gravity of the offending, the taking of a life and the seriousness of the offending as reflected by the maximum penalty available to the Court.  I also must consider your culpability, your blameworthiness.  In that regard I take into account your apparent emotional immaturity, the fact that you lacked any support and the moderate depressive illness you were suffering from at the time.

[25]    Finally I am aware of the need to impose the least restrictive outcome appropriate in all the circumstances.  Despite Mr Newell’s careful submissions on your behalf I am unable to accept that a sentence short of imprisonment would be sufficient to reflect the purposes and principles of sentencing in this case.

[26]    I have had regard to the authorities counsel have referred to, including Woodcook v R, R v Greaves, R v Tukiwaho,1 but I have also referred to the case of R v Marks.2   I have also had regard to the cases of sentencing for infanticide but I put those cases to one side.  Yours was not a case of infanticide.  You were originally charged with murder.  The charge was properly reduced to manslaughter to which

you responsibly pleaded guilty, but this is not a case of infanticide.

1      Woodcook v R CA733/2009;   28 October 2010; R v Greaves CA68/99, 13 May 1999; and

R v Tukiwaho HC Rotorua CRI-2011-063-5013, 30 May 2012.

2      R v Marks HC Auckland T 032930, 12 February 2004.

[27]     While each case must turn on its own facts as I discussed with counsel the closest case on the facts to yours is the case of Marks.  In Marks the mother wanted to stop her four and a half month old child crying to stop the child disturbing others. She placed the child on her stomach and put a heavy duvet over her to stop her crying.  Although Ms Marks intended to take the duvet off the child she fell asleep and the child suffocated.  The Judge took a starting point of between three and four years’ imprisonment and ultimately imposed a sentence of two years, nine months’ imprisonment.  In that case, like in yours, the mother was inadequate and unable to cope with the situation she faced.

[28]     While you did not intend to kill your baby, you acted deliberately to stop the baby crying to cover up the fact that you had given birth.  You deliberately wrapped the towel around the baby’s face and then tied the shirt tightly around his face.  It was inevitable your baby was going to die by suffocation.

[29]     Having regard to the factors involved in your offending I take as a start point

four years’ imprisonment.

[30]   I then reduce that by eight months to take account of your personal circumstances, namely your emotional immaturity, the moderate depression you are suffering from, the lack of support, all of which I accept impact on your personal culpability in this case.

[31]     I then give you further but limited credit for the remorse you have expressed. I also take into account your guilty plea.  It was, I accept, entered at the earliest point that manslaughter was available.  You are entitled to a significant reduction for that but  I balance against that  the fact that this was  a strong  Crown  case.    It  was inevitable your offending would come to light.  Once it was discovered the baby had been buried inquiries would lead to you and with forensic evidence as to the cause of death, ultimately to conviction.  I reduce the sentence further by 20 per cent for that guilty plea.

[32]     Ms Akau’ola, it is apparent you are emotionally immature as I have said and are not currently equipped to cope with the stresses involved in being a mother.  I

expect programmes will be made available to you both before and after your release which will assist you to understand the responsibilities of parenthood and to help you cope with its demands, so that hopefully on your release you will be able to play a proper role in parenting your other children.

[33]     Please  stand.     On  the  charge  of  manslaughter  you  are  sentenced  to imprisonment for two years, six months. Stand down.

Venning J