R v AM HC Ak CRI 2007-092-016688

[2009] NZHC 2405

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THEIR CHILDREN

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2007-092-016688

THE QUEEN

v

AM

Charge:          Cruelty to children by wilful neglect x1

Plea:               Guilty

Appearances:  P Hamlin for Crown

J Scott for Prisoner

Sentenced:     4 November 2009

Home detention – six months

SENTENCING NOTES OF VENNING J

Solicitors:            Crown Solicitor, Auckland

Public Defence Service, Auckland

R V AM HC AK CRI-2007-092-016688  4 November 2009

[1]      AM  you  are  for  sentence  having  pleaded  guilty  to  cruelty  to  children  by wilful neglect.  The charge carries a maximum penalty of five years’ imprisonment.

Name suppression

[2]      You  have  name  suppression. I  confirm  the  final  order  for  your  name suppression.  The order is to prohibit the publication of your name and other details which might lead to the identification of the complainants.   As I have said I made that order for the protection of your children, not for your benefit.

[3]      Your guilty plea was entered during the course of a trial that  you and  your husband CN faced.  It came after an amended indictment was presented to the Court and after your oldest daughter had given evidence.

[4]      Although your oldest daughter was required to give evidence at the trial, as a result  of  the  amended  indictment  and  your  plea  to  this  charge,  none  of  the  other complainants were, and I propose to give you an appropriate credit for  your guilty plea and acceptance of responsibility.

[5]      As you have heard me discuss with counsel, however, AM, of real concern to me  in  this  case  is  your  apparent  lack  of  understanding  of  the  situation  that  you allowed to carry on in the home.

[6]      The  summary  of  facts  that  you  have  pleaded  guilty  to  and  the  evidence  I heard  from  your  daughter  establishes  that  the  offending  in  relation  to  the  wilful neglect, only came to the attention of the authorities because other responsible adults interacting  with  your  children,  took  steps  that  you  yourself  should  have  taken  to address the problems in your home.   Teachers who saw your children on a regular basis said they were  neglected and  not cared  for.   Housing Corporation inspectors saw the damage and dirty and bad state of the house that you and your family lived

in.

[7]      Although the home that  you  were  living  in  had  been  provided  by Housing

New Zealand as a new home to you, within two years it was in a terrible state.   It

was unhygienic and dirty.   You failed in your most basic duty which is to care for your children in your home.  The teachers at various schools who saw your children described them as coming to school dirty.  They had noticeable injuries.  Children at the school refused to sit next to your oldest daughter because she smelt.   She must have been badly affected by that.  The public health nurse had to be called in to treat her head lice and medical reports show the children were lice ridden, smelt and they had ingrained dirt on their hands and feet.   They obviously were not cared for and were not washed regularly.   That forms the basis of the count of wilful neglect that you have pleaded guilty to.  It is bad neglect but it is not at the most extreme end of the scale.

[8]      But in your case there is another feature of the neglect, namely your failure to protect  your three oldest children in particular from the assaults that  your husband dealt out to them.   Your oldest daughter complained in September 2007 following severe assaults on her by your husband.   She is the oldest of the eight children you were responsible for at the time.   For reasons which I cannot understand, you stood by or  did  not  prevent  your  husband  beating  your  children.   On  one  occasion  your daughter was so badly beaten that when taken to Auckland Hospital for treatment by a CYFS worker a week later the bruising was still evident and photographs recorded her injuries.  That assault was not an isolated or one-off incident, either on her or on your other children, particularly the next two children in age.

[9]      You failed in your duty to protect your children from your husband.  Regular assaults  were  a  way  of  life  for  your  children  in  the  home. That  is  why  I  am concerned at some of the matters referred to in the pre-sentence report which I have discussed  with  counsel  on  a  previous  occasion  and  referred  to  briefly  again  this morning.   There  seems  to  be  a  lack  of  understanding  by  you  that  you  had  in  fact neglected  your  children.You  somehow  blame  CYFS  and  other  people  for  the situation that you are in.

[10]     You have made significant progress in some aspects of your life AM.  You have organised a place to live and you have also found work. You have been dealing with the authorities and gained employment. You are to be commended for  that. Perhaps as part of that you may now begin to understand what you need to do ensure

your  safety  and  the  safety  of  your  children,  if  you  are  to  have  contact  with  your children in the future, which of course is a matter for other appropriate authorities.

[11]     At  a  certain  level  I  accept  you  care  for  and  have  great  feelings  for  your children.  But more than feelings are required.  As a mother your principal role is to protect and care for the children physically.   Some of them are too  young and too small to care for themselves physically.   I accept, as I have said, that  your neglect has not been total.   You have taken the children to hospital and to medical doctors when they have been ill from time to time.  You have breastfed children.  But that is as is expected and part of the normal role of a mother.  The matter of concern to the Court  is  your  suggestion  that  in  some  way  once  AN  serves  his  sentence  you  will simply get back together and then you will get your children back and life will carry on.  I can’t make it any plainer than saying to you AM that life will simply not carry on as it was in the past.  If there is to be any future for you and AN as parents, then you need to change your attitude and that involves understanding what is required of you.

[12]     You  should  regard  CYFS  and  other  social  workers  that  you  have  dealings with as people who can assist you rather than as people who you should try and push away.  You must not put barriers between them and you.

[13]     In sentencing you I am required to have regard to the purposes and principles

of the Sentencing Act.  They include the need in case to:

·    hold  you  accountable  for  the  harm  done  to  your  children  and  the community by offending of this nature;

·    to denounce your conduct which was neglect of your children;

·    to deter you and others from similar offending;

·    to impose the least restrictive outcome in the circumstances;  and

·    to provide for your rehabilitation.

[14]     I am also required to take into account:

·    the  gravity  or  seriousness  of  the  offence,  including  your  culpability  in comparison with other offences;

·    to  promote  in  you  responsibility for  and  acknowledgement  of  the  harm you have caused your children;  and

·    of course the sentence I impose must be consistent with other sentences in cases of this nature.

[15]     I have referred to the effect on your children.   I have seen the victim impact reports.   In your case AM perhaps it may assist your understanding of the situation when I read your daughter’s impact statement.  She says she likes it a lot more where she is now than when she was living with her parents.  The person she is living with now looks after her much better.   She gets better food, she feels healthier.   “As for my mum, I don’t really hate my mum.   I just have no feelings towards her at all”. And your oldest son says simply that he likes living where he is living now and he feels more happy.

[16]     As  to  the  consistency  in  sentencing  I  have  considered  the  authorities  that counsel have referred to, in particular in this case Gear v Police HC AK CRI-2008-404-376 20 February 2004 Heath J;  R v R [2009] NZCA 356.

[17]     In  relation  to  the  charge  of  wilful  neglect  the  case  of  Gear  provides  some assistance.   Gear was charged with three counts of wilful neglect of three children. The charges spanned a year.  She had a problem, she was addicted to gambling.  She went  to  the  casino  leaving  her  children  to  fend  for  themselves,  on  occasions overnight.  They had sores and eczema and hygiene issues.  The police found a filthy home, with dirty rubbish, unwashed laundry and faeces in the home.   The children had not eaten regularly.  Ms Gear was sentenced to 18 months’ imprisonment.

[18]     The Crown argue for a start point for you AM of 18 months’ imprisonment. Ms Scott has argued for a community sentence and has of course reminded me that

in relation to AN I imposed an end sentence of six months’ imprisonment on him on this charge.

[19]     I accept that the level of neglect was not as bad in Gear but the neglect in your case continued for a considerable period of time, two years eight months, and related to  a number  of  children.   You  failed to provide basic  care  for the  children personally or in the home environment and as noted there is the additional factor of your failure to protect the children from your husband’s assaults.

[20]     In  your case  I consider an appropriate start point for sentence would be  15 months’ imprisonment.  Ms Scott has urged on the Court that you should be given a significant credit for your plea of guilty, notwithstanding the stage the plea of guilty came.  I accept as I said earlier that it is appropriate to give you a significant discount for the plea of guilty.  It is an acknowledgement of your responsibility and a tangible indication of your remorse.  It also meant that your younger children did not have to give evidence.

[21]     Balanced against that the evidence against you was overwhelming and I am not  aware  there  were  any  attempts  to  discuss  other  pleas  with  the  Crown  prior  to trial.   In any event, taking account of the practical situation you faced, particularly that  you  were  jointly  charged  with  your  husband  AN  and  the  pressure  you  may otherwise have been under from him, I accept you are entitled to more of a discount than would normally be the case of a guilty plea entered during trial.

Personal circumstances

[22]     I also take into account the matters that Ms Scott has raised on your behalf by way of personal mitigation.   As I have said I acknowledge the steps that you have taken recently to put your life back on track and you are to be commended for those steps. I also acknowledge as I have said that you care for your children.   What you really lack and what led to your offending, was a lack of understanding of the need for  you to take practical steps to ensure the  safety and basic  requirements of  your children were met.

[23]     In  my  judgment  a  discount  of  20  percent  is  appropriate  to  recognise  your guilty plea and the other personal mitigating factors in your case.  That would lead to a  sentence  of  12  months’  imprisonment.   Ms  Scott  has  urged  on  the  Court  that  a community sentence should be imposed and has suggested intensive supervision.   I am not satisfied that intensive supervision would sufficiently reflect the seriousness of  this  offending  and  the  need  to  denounce  your  offending  and  deter  you  and importantly others from this sort of offending.

[24]     In  my  judgment,  while  I  accept  a  sentence  less  than  imprisonment  is appropriate  the  appropriate  sentence  is  home  detention  in  your  case  with  special conditions.

[25]     I  am  satisfied  that  special  conditions  are  required  because  without  such conditions you are at risk of further offending and special conditions may reduce the likelihood of further offending of this nature through positive rehabilitation.

[26]     AM, would you please stand.  AM you are sentenced to home detention for a period of six months.  The standard conditions are to apply.  In addition I direct:

a)        You are to travel from Court to your address of 2/93 Browns Road, Manurewa and there to await the arrival of the probation officer.

b)You  are  to  reside  at  that  address  for  the  duration  of  the  home detention sentence.

c)        You are to comply with the requirements of electronic monitoring as directed by the probation officer.

d)You are to attend and complete a parenting programme as directed by the probation officer.

e)        You   are   to   participate   in   any   assessment   and   complete   to   the satisfaction   of   your   probation   officer   any   assessments   and   any treatment or programme as directed by the probation officer.

f)        You  are  not  to  associate  with  any  person  or  persons  that  may  be directed in writing to you by the probation officer.

g)        You  are  not  to  consume  or  to  be  in  possession  of  alcohol  or  non prescription drugs for the duration of home detention.

[27]     For the assistance of your probation officer and clarification I confirm that I anticipate your probation officer will direct you that you are able to continue in your employment.   Your monitoring will be adjusted to allow that.   That is all, you may stand down.

Venning J