R v Clancy

[2021] NZHC 1021

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-070-1709

[2021] NZHC 1021

THE QUEEN

v

ADRIAN CLANCY

Hearing:	7 May 2021
Counsel:	R W Jenson and J Sutton for Crown K Tustin for Defendant
Sentence:	7 May 2021

SENTENCING NOTES OF WHATA J

Solicitors:           Pollett Legal, Tauranga

R v CLANCY [2021] NZHC 1021 [7 May 2021]

[1]    Mr Clancy, you were found guilty of the murder of Sadie-Leigh Gardner. Given that Sadie-Leigh was only 17 months old when you killed her, a sentence of life imprisonment is inevitable, as your counsel quite properly accepts. The remaining issue is the minimum term of imprisonment (MPI) you must serve before you are eligible for parole. Again, given Sadie-Leigh’s young age, s 104 of the Sentencing Act 2002 demands that I impose a minimum period of imprisonment of 17 years unless it would be manifestly unjust to do so.1 To determine whether that would be manifestly unjust, I must, first, describe the key facts of the murder. Second, take into account your personal circumstances. Third, identify the minimum period of imprisonment I would impose if s 104 did not apply; and, finally, if the minimum period of imprisonment would be less than 17 years, otherwise, I must then decide whether it would be manifestly unjust to impose a 17-year minimum period of imprisonment on you.2

[2]    Before I go further, I want to acknowledge Sadie-Leigh’s family. Her loss will have caused you incomprehensible harm and I wish to acknowledge your loss and express my deepest sympathies to you.

Facts

[3]    I turn then to the facts of the murder. As the trial Judge, one of my duties today is to set out clearly the facts on which I am sentencing you. In working out those facts, I must accept as true all the facts the jury needed to have accepted, at a minimum, to find you guilty of murder.3 But beyond that, I can only accept as true anything that

1      Sentencing Act 2002, s 104(1)(g): “The court must make an order under section 103 imposing a minimum period of imprisonment of at least 17 years […] unless it is satisfied that it would be manifestly unjust to do so […] if the deceased was particularly vulnerable because of his or her age […]”. The defence does not suggest there is any dispute that s 104(1)(e) is engaged in this case. While vulnerability for the purposes of s 104(1)(g) is a fact-specific inquiry (Graham v R [2011] NZCA 131 at [13]), and the focus with child victims will be on whether they are particularly vulnerable because of their age (Filihia v R [2014] NZCA 401 at [115]), on no occasion – unsurprisingly – has it ever been found, or in fact (it appears) ever suggested that s 104(1)(g) will not apply in the case of an infant victim: see Little v R [2007] NZCA 491, “if [s 104(1)(g] does not apply to a 7-month-old baby, it is difficult to imagine when it would apply”. Obviously, Sadie- Leigh was over twice as old as that infant. That is not however a material point of distinction, and I would agree with Davison J in R v Savage [2020] NZHC 2553 at [65], where he described it as “clear” that s 104(1)(g) was engaged in relation to the murder of a two-year old, there being no question that the victim was particularly vulnerable.

2      R v Williams [2005] 2 NZLR 506 (CA). See also Davis v R [2019] NZCA 40 at [25] and [26].

3      Sentencing Act 2002, s 24(1)(b).

means a greater penalty is appropriate4 if satisfied beyond a reasonable doubt as to the existence of that fact.5 I am explaining this because, in a moment, I will need to decide between two competing views of the facts that you and the Crown are putting up at sentencing today.6

[4]    Sadie-Leigh was left with her grandmother, on the morning of 27 March 2019. She was at that time, it appears, coming down with a cold. While a little grizzly, Sadie- Leigh was her usual playful self, until later that morning when she became very grumpy. Sadie-Leigh’s grandmother then arranged for her mother, your then partner of six or so months, Jessica Gardner, to pick her up, which she did at about 1.00 pm. On the way home, where you had been for much of the day watching TV and online gambling, Jessica ran some errands and stopped to pick up some lunch from Burger King. Sadie-Leigh was left in the car during this time.

[5]    When Jessica arrived home at about 2.10 pm, she went inside while a neighbour went to collect Sadie-Leigh out of the car and brought her inside. Sadie- Leigh was described by the neighbour as hot, dazing in and out, and “just off”. There is a dispute on the evidence about Sadie-Leigh’s movements at this point. You and Jessica recalled her moving about, while the neighbour’s evidence was that she had Sadie-Leigh had her on her knee until, sometime later, Jessica decided to put Sadie- Leigh down to sleep in her cot. Jessica also tried to give Sadie-Leigh some cough syrup, but Sadie-Leigh coughed it back up. Then, with Sadie-Leigh in her cot, Jessica left the house for an appointment at about 3.31 pm. Sadie-Leigh was in your sole care at this time.

[6]    There is no direct evidence of what then happened. You said, in a statement to the Police, that you heard Sadie-Leigh coughing badly, then suddenly stop and that you went to see if she was okay. It is clear the jury did not believe your account. In any event, at about 3.49 pm, you took Sadie-Leigh to the flat of your neighbour who

4      Section 24(3) definition of “aggravating fact”.

5      Sections 24(1) and 24(2)(c).

6      As was noted in R v Aram [2007] NZCA 328 at [71], a disputed facts hearing is seldom required, the provisions of ss 24(2)(a)-(b), and the general preferability of a disputed facts hearings being conducted separately to the sentencing exercise (see R v Kinghorn [2014] NZCA 168 at [21]-[22]) notwithstanding, where the sentencing judge was the trial judge and the factual dispute relates wholly to matters which the trial judge is best placed to resolve any dispute.

had been with Sadie-Leigh earlier. Sadie-Leigh was not breathing and there was some blood on her face. Another neighbour, who was already at the flat, immediately started to give her CPR. During this time, you returned to your flat, got some wipes and returned to clear the blood from Sadie-Leigh’s face. Shortly after, the first responders arrived and also tried to revive Sadie-Leigh, who had lost consciousness. A decision was made to take her to the local hospital and then onto Starship Hospital in Auckland. She never regained consciousness and died two days later.

[7]The post-mortem revealed multiple injuries including:

(a)fracturing of the right-hand side of her skull and swelling and bogginess to the right-hand side of her scalp;

(b)extensive brain injuries, including bleeding at several levels of the brain, and the midline of Sadie-Leigh’s brain having been shifted within her skull;

(c)injuries to the ligaments in the spine around her neck;

(d)an injury to Sadie-Leigh’s left-hand scapula; and

(e)significant damage to both of her retinas in her eyes.

[8]    Your defence at trial was that there was at least a reasonable possibility that the brain injuries, which were the fatal injuries, might have occurred before Sadie-Leigh was left in your sole care at 3.31 pm. You relied on the fact the experts who gave evidence could not say exactly when the trauma occurred. Nor could they confirm that it occurred between 3.31 and 3.49 pm. They also agreed that she may have appeared lucid for a short period after her fatal injury. While some experts thought this might have been as little as five minutes, your expert believed it could have been more than fifteen minutes. So, you said, that the jury could not be sure beyond a reasonable doubt you were responsible for the brain injuries. Clearly, the jury did not accept this and found the injury occurred while in your care.

[9]    The jury must also have been satisfied that you struck her to the head, or caused it to be struck, with sufficient force to cause the fatal injuries. The Crown also say that there was sufficient evidence to show you actually intended to kill Sadie-Leigh, referring to the number and catastrophic nature of her injuries. In particular, the Crown referred to the combination of the right-hand skull fracture and the left-hand-side scapula injury. They say this indicates you are responsible for more than one application of significant force to Sadie-Leigh. I disagree. The evidence at trial did not exclude beyond reasonable doubt the possibility that the scapula injury occurred at another time. That is, it is at least reasonably possible that the scapula injury is unrelated to the fatal head injury. Importantly, the experts could not say that the scapula injury was recent at the time of Sadie-Leigh’s death or as recent as the head injury.

[10]   Moreover, I consider it is more plausible that the fatal injury was caused by a single spontaneous high force impact to the right side of the skull. There is no clear evidence of more than one application of force in the period that you were in Sadie- Leigh’s care. For that reason, I do not consider there is sufficient evidence to infer an intention to murder in the sense of consciously deciding or deliberately meaning to kill her.7 There is simply nothing in the evidence, apart from the blunt force trauma to the right side of Sadie-Leigh’s head, to support that inference.

[11]   Importantly also, there is no clear evidence that you were upset at the time or that you had reason to be upset with Sadie-Leigh. The Crown relied on evidence that you were tired and perhaps frustrated because of your gambling. But that is not consistent with the evidence that you were not gambling late the night before, that you were asleep when Jessica left for her mother’s place at 9.00 am, had a training session at the gym that morning and returned home to watch the games that you had bet on that day, and were having some success. So, it can be reasonably inferred that you were not terribly sleep-deprived, and that you were having a reasonably stress-free day. Quite why you would explode into fatal violence, remains unclear. There was certainly no evidence, and there has been no information since, to suggest you were

7      That is, that the jury convicted Mr Clancy of murder pursuant to s 167(a) of the Crimes Act 1961, which provides that “Culpable homicide is murder […] if the offender means to cause the death of the person killed […]”

or are prone to violence, let alone intentionally fatal violence. On the contrary, the evidence at trial was that you were a calm person and good to Sadie-Leigh and to your daughter. Everyone spoken to, in order to produce reports I have about you, describes the murder as shockingly out of character and this is confirmed by the many subsequent statements that I have received. So, given all of this, I will assume that the jury found that you recklessly killed Sadie-Leigh.8

[12]   To summarise, I do not find that you consciously intended to kill Sadie-Leigh. Rather, I find that the jury must have been satisfied that you struck or caused Sadie- Leigh to be struck only once and in doing so, meant to cause her bodily injury knowing it would likely cause death and that you were reckless as to whether death ensued or not. I will sentence you on that basis.

Personal circumstances

[13]   I turn now to your personal circumstances. For this purpose, I have the benefit of your pre-sentence report by Corrections, and a s 27 report.

[14]   You are 41 years of age and of Te Arawa descent. You have a five-year-old daughter with whom you have a loving and caring relationship. You have no previous convictions for violent offending. All of your previous convictions are for traffic matters and are all now dated over 15 years ago.

[15]   Your parents told the Corrections report-writer that you enjoyed a happy childhood. But that does not align with what you told the s 27 report-writer. With her, you referred to your mum’s alcohol abuse, fights between your parents and beatings at her hands. After your parents separated when you were about seven, you lived with your father. You describe this time when you often went hungry and got used to caring for yourself. You also refer to a time when you moved back in with your mother and being exposed to violence by your stepfather toward her. You lived with your mother

8      That is, that the jury convicted Mr Clancy of murder pursuant to s 167(b) of the Crimes Act 1961, which provides that “Culpable homicide is murder […] if the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not […]”

until about the age of 22 or 23. [Redacted] You have also got into binge drinking for a while in your early twenties.

[16]   You report having employment at a processing plant from 1998 to 2014, when you had an accident, injuring your back. You have been on ACC ever since. It appears you lived off your ACC benefit, and any gambling profits; a habit you developed from a young age, having picked it up from your father.

[17]   Those close to you, including your family and a former partner, describe you as a kind, gentle person, and that you love and adore your daughter. Your former partner also said that you can be withdrawn, anti-social and quiet, and that you reported to her having been beaten by your father as a child. She says that she had been with you for six years and never seen you lose your temper or raise your voice. She said that your way of dealing with problems was to gamble, not lashing out. I place some weight on her assessment, given she is a social worker who works with teenage boys from troubled backgrounds. Your father also said he has never seen you angry or hit anyone. One of your younger sisters describes you as the calmest person in your family, while the others describe you as shy and quiet and you don’t ‘do drama’. The many letters filed on your behalf reflect these comments.

[18]   The s 27 report-writer also observes that you do not see yourself as a victim of your childhood, noting that there is no evidence of violence, stress or triggers in your life, and confirming also that the people closest to you speak of how gentle and caring you are with them.

[19]   In my evaluation, that is the correct view of what is known about your personal circumstances, none of which help explain what happened on 27 March 2019. Overall, however, it adds to the image of the murder as being entirely out of character for you.

Victim impact reports

[20]   But that does little, of course, to reduce the enormous heart-breaking loss that comes with the needless death of a young child. That loss that comes across very clearly in the victim impact statements that have been given by Ms Gardner and by her mother, the grandmother. Both make it clear how beloved Sadie-Leigh was.

Ms Gardner describes her as lighting up every room. They both refer to the enormous grief they have experienced since Sadie-Leigh’s death, noting that they have trouble sleeping or functioning as they did before; clearly deeply afflicted as they mourn the loss of Sadie-Leigh and the lost opportunities of Sadie-Leigh’s young life. Both remain justifiably enraged at your actions, referring to the way that you have breached their and Sadie-Leigh’s trust. Ms Gardner also refers to the significant impact of Sadie-Leigh’s premature death on her mental health and the trauma that this has caused to her and to Ms Maulstaid, associated with the trial process.

Sentence

[21]   I am now at the point where I will fix your sentence. As I have said, there is no suggestion you do not qualify for a sentence of life imprisonment,9 and the key issue I must resolve is the minimum term of imprisonment you must serve. As I have also said, because you killed a toddler, s104 of the Sentencing Act says you should serve a minimum sentence of 17 years imprisonment unless it would be manifestly unjust to impose that sentence.

Notional (‘but-for s 104’) minimum period of imprisonment

[22]   I must first decide the minimum period of imprisonment you would serve if you were not subject to s104. To do this I must identify a starting point minimum period of imprisonment based on the facts of your murder, including those facts that make it worse than other standard murders. I must then identify any mitigating facts of your murder or facts that are personal to you which means that starting point for the MPI can be reduced.10

[23]   Most obviously, Sadie-Leigh’s young age and her vulnerability, together with your breach of the trust placed in you to care for her and the loss of her life, are very serious factors that must count heavily against you.11 But your offending, which involved a single significant impact to Sadie-Leigh’s head, was not otherwise more

9      See Sentencing Act 2002, s 102(1). The presumption of life imprisonment for murder will be displaced only in exceptional cases: R v Rapira [2003] 3 NZLR 794 (CA) at 828.

10     R v Williams [2005] 2 NZLR 506 (CA) at [52]-[53]. See also Davis v R [2019] NZCA 40 at [24]- [28].

11     Sentencing Act 2002, ss 9(1)(f) and (g).

brutal, cruel, depraved or callous than any other murder.12 I also consider the fact that you immediately sought aid for Sadie-Leigh and tried to give her CPR to be mitigating factors of your offending. Overall, I would settle on a MPI of 15 years as appropriate in relation to the facts for your offending.

[24]   Your otherwise good character is a further factor in your favour. I also think there should be some modest recognition of the early childhood violence suffered by you, the true significance of which is not readily capable of exact measurement on the material available to me. Taken together, I would, having regard only to the facts of your offending and your personal circumstances, adopt a starting minimum period of imprisonment of 14 years and six months. Again, that is the figure I should apply setting aside, for the moment, s 104.

[25]   I draw support for this from the approach taken by Dobson J in Wakefield, which drew on several other sentencings for the murders of infants,13 several of which are cases that counsel today have referred me to. I note some of these are cases in which the s 104 applied but imposing a 17-year MPI was found to be manifestly unjust, and others not.

[26]   Wakefield involved similar, if not relatively greater, violence to a younger even more vulnerable victim. It was a case involving two episodes of violent shaking to a five-month-old baby. But for s 104, Dobson J would have imposed an MPI of 15 years and 6 months. He reduced this still further to 14 years and 9 months to take into account Mr Wakefield’s personality dysfunction brought on by domestic violence as a child and his immediate and genuine remorse evidenced by his accepting responsibility for manslaughter.

12 In R v Paul CA495/06, 1 August 2005 at [27] the Court identified it as necessary to assess, in applying s 104, whether the facts of the case take it outside the “standard range of murders”. In this respect, it has been acknowledged, in cases where s 104(1)(e) was thought to apply, that all murders are in some sense brutal, cruel, depraved or callous, and so a “high” level of brutality, callousness, depravity, and/or cruelty is required to take a case outside the ordinary range: R v Slade [2005] 2 NZLR 526 (CA). Here, the level of force – notwithstanding it has been applied to an infant – does not engage that criterion, so 104(1)(e) is not engaged. The fact that the application of any level of violence to an infant is likely to have devastating consequences is recognised by the application of s 104(1)(g) in this case.

13 R v Wakefield [2019] NZHC 1629, referring to R v Paul CA496/05, 1 August 2006; R v Little [2007] NZCA 491; Filihia v R [2014] NZCA 401; R v Ellory [2013] NZHC 2609; R v Lackner [2016] NZCA 29; R v MS [2017] NZHC 2066; and R v Cooper [2017] NZHC 2498.

[27]   I will not refer to all of the cases mentioned in Wakefield. Instead, I mention only the most relevant, Paul.14 The circumstances and level of violence was similar; Mr Paul exerting significant force in a moment of rage, causing a 14-month-old infant, who was sick in his care, to die of extensive internal injuries. Noting there were no aggravating features other than the victim’s young age and taking, together with his older age and poor upbringing as a teenager, Gendall J in the High Court adopted a notional MPI, but for application of s 104, of 15 years. His approach was upheld on appeal. Your case is similar, so a notional minimum period of imprisonment is appropriate. In saying this, I do not overlook the point that Mr Paul was more remorseful than you are, having pleaded guilty to manslaughter.

Is imposing a MPI of 17 years manifestly excessive?

[28]   I turn then to whether, in light of this alternate minimum period of imprisonment of 14 years and six months, imposing a 17-year minimum period of imprisonment required by s 104, would be manifestly unjust.

[29]   After much anxious consideration, particularly in light of my findings about the cause of death and that it was due to recklessness and having regard to your personal background, I am unable to conclude that a sentence of 17 years is manifestly unjust. A young particularly vulnerable toddler has been killed. The principles of deterrence and denunciation are fully engaged in a case of murder as serious as this. Even though I consider your risk of reoffending is low, on all accounts, the offending is totally out of character, I cannot say that a 17-year minimum is grossly disproportionate. In particular, your continued denial of responsibility and the absence of remorse, means a mitigating factor present in many, if not all of the cases where manifest injustice has been found, is absent in your case. Nor do the adverse circumstances of your youth particularly serve to explain or lessen the responsibility for Sadie-Leigh’s death.

[30]   Overall, it cannot be said, looking altogether at the facts of your offending and your personal circumstances, that your culpability is limited enough that you fall outside the range of cases at which s 104 of the Sentencing Act 2002 is aimed.

14     R v Paul CA496/05, 1 August 2006.

[31]Mr Clancy, please stand.

Sentence

[32]   For the murder of Sadie-Leigh Gardiner, I sentence you to life imprisonment with a minimum period of 17 years.

Redaction

[33]The reason for redaction at [15] is recorded in my Minute of 11 May 2021.