R v Cooper

[2017] NZHC 2498

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-092-010951 [2017] NZHC 2498

THE QUEEN

v

KATHLEEN ELIZABETH COOPER

Hearing:	12 October 2017
Counsel:	A J F Perkins QC and M K Regan for Crown P E Dacre QC and D S Wallwork for Defendant
Judgment:	12 October 2017

SENTENCING NOTES OF KATZ J

Solicitor:       M K Regan, Kayes Fletcher Walker Limited, Crown Solicitor, Manukau

Counsel:       A Perkins QC, Barrister, Auckland

P Dacre QC, Barrister, Auckland

D S Wallwork, Barrister, Manukau

R v COOPER [2017] NZHC 2498 [12 October 2017]

[1]      Mrs Cooper, on 15 August 2017 you were found guilty, following a jury trial, of the murder of your grandson, Jermaine Ngawhau.  You appear before me today for sentence.

[2]      You defended the charge on the basis that you were guilty of manslaughter, not murder.  The jury rejected that claim.

[3]      Given your conviction for murder, your counsel, Mr Dacre QC, responsibly concedes that a sentence of life imprisonment is inevitable.1    The real issue before me today is what minimum period of imprisonment you must serve before you are eligible to be considered for parole.  Mr Perkins QC, for the Crown, submits that the appropriate minimum term is one of 17 years’ imprisonment.  Mr Dacre argues that I can, and should, impose a lesser minimum period of imprisonment.2

[4]      I would like to acknowledge at the outset everyone who is here in Court today. I know that some of you have flown here from afar.   I would also like to acknowledge those who are not able to be here today but who knew and cared for Jermaine in his short life.   The unnecessary death of a child is always  a  great tragedy.  Obviously, no sentence I pass can bring Jermaine back or heal the pain and loss of those who loved him.   Rather, the aim of sentencing today is to hold you, Mrs Cooper, accountable for the terrible harm you have caused – to Jermaine, who lost his life; to the family who loved him and will never see him grow up; to his young  sister,  who  you  wrongly  blamed  for  his  death;  and  to  the  community generally.   The loss  of  yet  another  young life  at  the hands  of the very person entrusted to care for him is rightly a matter of public outrage and deep community concern.

[5]      I have had the benefit of reading victim impact statements from both of Jermaine’s parents.   There can be no greater loss than the loss of a child and I acknowledge their grief and pain.  I thank them for taking the time to share with me the impact that the loss of Jermaine has had on them.   To Jermaine’s mother, the

depth of your pain is apparent from your statement.   You have suffered a double

1      Section 102 of the Sentencing Act 2002 creates a presumption in favour of life imprisonment for murder.

2      As per s 104 of the Sentencing Act 2002.

tragedy.  Not only have you lost your beloved son, but it was at the hands of your own mother, who lied to you for many months about what she had done.  I have also heard this morning from the paternal grandfather of one of Jermaine’s siblings.   I thank you also for sharing with me your account as to how the tragic events before the Court today have affected you, and also Jermaine’s sister, who you and your wife are now raising.

The offending

[6]      Mrs Cooper, I am going to start by setting out the facts of your offending.  On

13 December 2015 you assaulted Jermaine, by throwing him in the hallway of your home.  He was aged two years and seven months at the time.  He died several days later as a result of a catastrophic brain injury that he suffered as a result of your assault.

[7]      Given your acknowledgement at trial that you had caused Jermaine’s fatal injuries,  the sole  issue for the jury was  whether  you  were guilty of  murder or manslaughter.  The Crown did not allege that you intended to kill Jermaine.  Rather, it relied on an alternative form of murderous intent.  The Crown case was essentially that you intended to cause bodily injury to Jermaine that you knew was likely to cause his death and you went ahead and assaulted him regardless.  Essentially, you were reckless with his life and he died as a result.  The jury found that you did have that type of murderous intent and were therefore guilty of murder.

[8]      In mid-2014 Jermaine and three of his siblings, who were all aged under five at the time, were placed in your care by Child, Youth and Family (CYF).  Due to their own personal issues the children’s parents were unable to adequately care for them at that time.   The youngest child was only a matter of weeks old when the children came into your care.   The children appear to have had various issues as a result  of  early  deprivation  and  other  issues.   In  addition,  Jermaine  suffered significant physical and developmental delays, due to a genetic disorder. At the time of his death he weighed only 10.3 kilograms and was 87.9 centimetres tall.  This put him at the very low end of the normal spectrum for a child of his age.   He was struggling to walk unassisted and was also delayed when it came to toileting.

[9]      You were the only family member who was willing and able to take on all four children.  There is no question that the responsibility and challenge you took on was an enormous one and that you did it with the best of motivations.  At the time you were a single woman aged 62, living in a two-bedroom unit in a retirement housing community.  Some months later CYF found a more suitable home for you and the children and you all moved there.  The children attended a local day care centre  during the  week.    Due  to  his  special  needs,  Jermaine  had  a one-on-one caregiver to assist him when he was at day care. At home, however, you were in sole charge of all four children.

[10]     You struggled to cope with the pressure of looking after four challenging pre-schoolers.  You appear to have received no support from the children’s fathers and minimal support from their mother and other members of your extended family. Nor did you appear to receive any respite care, although as I have noted you did receive support during the days when the children attended day care.

[11]     You were often extremely stressed.  For reasons that are unclear, you seem to have had  real difficulty in accepting and coping with Jermaine’s developmental issues, despite attending medical appointments with him and being informed of his genetic  abnormality.    His  slow  development  was  an  ongoing  source  of  deep frustration for you.  You lacked insight into the severity of the challenges he faced, even referring to him to one witness at trial as being simply “lazy”.

[12]     There is no dispute, however, that you looked after the physical needs of the children well.  Witnesses at trial reported that the children were well-fed, clean and well-dressed.  Their rooms were nicely decorated.  They had lots of toys and clothes, and a trampoline in the yard.

[13]     Beneath  the  surface,  however,  all  was  not  well.     You  were  a  harsh disciplinarian   who   appears   to   have   smacked   the   children   frequently   with considerable force, despite their young age.  Mostly this appears to have been with your hand, though there was some suggestion that a belt may have been used at times.  Neighbours referred to your constant yelling, screaming, swearing, slamming of doors, and so on.   Childcare workers noticed bruising on the children.   The

pathologist  also  observed  bruising  on  Jermaine  at  the  time  of  his  death.    That bruising appears to have been consistent with having been caused by hand, however, as opposed to an object such as a piece of wood.   There was no indication that Jermaine had previously suffered any broken bones, which can sometimes be an indicator of more serious or prolonged abuse.

[14]     During the week prior to your fatal assault on Jermaine you had a number of members of your extended family staying, including some camping in the back yard. There was evidence at trial, which I accept, that you joined family members in the garage  during  the   evenings,   after  the  children   were  in   bed,   to   smoke methamphetamine.  Your visitors had all left, however, by the Thursday or Friday of that week, a couple of days before your fatal assault on Jermaine.  There is no evidence of your smoking methamphetamine after their departure.

[15]     It is incomprehensible that, as a grandmother with responsibility for four young  children,  you  would  think  it  was  in  any  way  acceptable  to  spend  your evenings smoking methamphetamine.  We heard evidence at trial of the after-effects of methamphetamine use, including irritability and sleeplessness.   Of particular concern is that the children were also exposed to methamphetamine, presumably as a result of it being used in their vicinity.  Scientists found traces of methamphetamine in their hair.   All of this is a matter of deep concern and reflects poorly on your suitability as a caregiver.   You are not being sentenced, however, for your drug habits.  Rather, I must focus on whether your methamphetamine use was likely to have been a significant contributing factor to your fatal assault on Jermaine.  I am not satisfied that it was.  There were other factors in play on the afternoon of Sunday

13 December, when you assaulted Jermaine, that in my view were likely to have been much more significant.  I now turn to consider those.

[16]     On the evening of Friday 11 December 2015, the children’s mother came to visit.   She found that Jermaine had been sent to bed early, apparently following a toileting accident.

[17]     The next day, Saturday, your friend and neighbour, Mrs Leilani, came to visit. She saw you forcefully dragging a crying and naked Jermaine by one arm from the toilet to his bedroom.   I infer that he had probably had another toileting accident. You were yelling and swearing at him.  She heard a thump from the bedroom but did not see what caused it.  She was upset at what she saw, and left not long afterwards. She did not approve of the harsh way in which you disciplined the children but did not wish to confront you about it.

[18]     On Saturday evening the baby was sick with a tummy bug and you were up with her during the night, which no doubt increased your general irritability and stress levels.  There was independent evidence confirming that the baby was indeed sick that weekend.  The police sergeant who attended your home after Jermaine had been taken to hospital reported that he saw the baby vomiting while he was there.

[19]     Your daughter had apparently promised you that she would come and help with the children on the Sunday.  To your considerable anger and disappointment she failed to show up.  Her evidence at trial was that she did not have transport.  When you were unable to get hold of her on Sunday afternoon,  you phoned  an adult grandson, at 2.54 pm, to complain. You were angry and upset that your daughter had not come and that she and her partner were not answering their mobile phones.

[20]     Some time over the next couple of hours or so you fatally assaulted Jermaine. At 5.31 pm you phoned your adult grandson back, this time to tell him that Jermaine had been hurt.   He described you as being distraught.  You told him that you had fallen asleep and then awoke to find Jermaine unconscious in the hallway.   Your grandson told you to call an ambulance.  You told him that one of the other children had admitted to hurting Jermaine, by hitting him over the head with an iPad. As you now acknowledge, that was a lie.  It was you, not your granddaughter, who fatally assaulted Jermaine that afternoon.

[21]     You first admitted that you had assaulted Jermaine shortly before trial, many months after the relevant events.  Prior to that, you lied to everybody about what had happened, including ambulance officers, the police, doctors, family and friends. Continuously, over a period of many months, you tried to shift the blame to your

four year old granddaughter, describing her angrily to your sister in an intercepted phone  call  that  was  played  at  trial  in  the  harshest  possible  terms,  including describing her as “evil” and a “fucking little bitch”.

[22]     You told the ambulance officer that you had found Jermaine unconscious in the hallway, near the toilet door.  You have since admitted through your counsel that you threw Jermaine in that hallway.   This admission is also consistent with your granddaughter’s statement to police at the time that she saw you pick up Jermaine “like a baby” and throw him in the hallway, because he was being naughty.  I accept Mr Dacre’s submission, however, that the assault appears to have been relatively fleeting in nature, rather than being a prolonged attack on Jermaine that afternoon.

[23]     The medical evidence was that Jermaine’s fatal brain injury could have been caused by being thrown in the way described and his head impacting the wall or floor.  However, the medical experts were unanimously of the opinion that a throw of very considerable force (described by them as “extreme” or “very severe”) would have been necessary to cause Jermaine’s brain injury. Accidentally dropping a child, for example, would not cause such an devastating injury, nor would hitting a child over the head with an iPad.  Rather, injuries of such severity have only been seen in fairly extreme cases, such as children who were involved in major motor vehicle accidents or who had fallen from multi-storey buildings.   In light of the medical evidence, there was no realistic prospect that any jury would ever have accepted that Jermaine’s injuries could have been caused by a child.

[24]     We will never know precisely what caused you to lose control that afternoon and throw your grandson with such force that you killed him.   It is possible that Jermaine had a further toileting accident and that this triggered your fatal assault. As I have already outlined, Jermaine’s toileting issues appear to have been an ongoing source of anger and frustration for you.  Whatever the precise trigger, it is clear that you vented your mounting stress levels, frustration and anger on Jermaine, resulting in his tragic death.

[25]     The brain injury he received was so severe that it was unsurvivable.  Even immediate surgery, later that evening, was unable to save him.  He passed away at Starship Hospital on 18 December 2015.

Minimum period of imprisonment

[26]      Mrs Cooper, as I have already said, it is common ground that the appropriate sentence is one of life imprisonment, and that is the sentence I will impose on you. That  is  not  the  end  of  the  matter,  however,  because  I  must  also  decide  what minimum length of time you must serve in prison before you can be considered for parole.

[27]     When victims are particularly vulnerable, due to their age or health, s 104 of the Sentencing Act 2002 requires Judges to impose a minimum period of imprisonment of not less than 17 years, unless it would be manifestly unjust to do so. Jermaine   was   an   extremely   vulnerable   victim   due   to   his   young   age   and developmental delays.  He was entirely dependent on you.  I am therefore required to sentence you to a minimum term of 17 years’ imprisonment unless I am satisfied that it would be manifestly unjust to do so.

[28]     When considering whether a 17 year minimum term would be manifestly unjust   I  am   first   required   to   consider   an   appropriate   minimum   period   of imprisonment with reference to the various aggravating and mitigating factors of your case.  I must keep in mind, however, that Parliament intended that the murder of particularly vulnerable victims should generally attract minimum terms of at least

17 years.3

[29]     There are three particularly aggravating features of your offending.   First,

there is Jermaine’s vulnerability.   He was totally defenceless due to his age and health issues.  It is hard to imagine a more vulnerable victim.

3      See R v Williams [2005] 2 NZLR 506 (CA) at [52]-[54]; R v Lackner [2015] NZHC 690 at [12] and [19] (upheld in Lackner v  R  [2016] NZCA 29); and R v  Paul HC Palmerston North CRI-2005-054-102, 28 November 2005 at [10] and [18]-[20] (upheld in R v Paul CA496/05,

1 August 2006).

[30]     Second, there is the degree of violence you inflicted on him.   As I have already noted, the experts were unanimously of the view that you must have thrown him with extreme force to cause the devastating brain injury that he received.

[31]     Third, there is the serious breach of trust.  Children have the right to be kept safe from harm and to be protected by those entrusted with their care.   It is an appalling  breach  of  trust  when  children  are  killed  by the  very people  who  are supposed to care for them and keep them safe.  You must be held accountable for your egregious failure to honour the trust that was placed in you when you took on the responsibility of caring for Jermaine.

[32]     Your offending cannot be considered in a vacuum, however, and I therefore now turn to consider whether there are any mitigating features of your offending.

[33]     Your assault on Jermaine appears to have been the tragic culmination of a build up of stress, anger and frustration on your part.  Mr Dacre referred to the case of Filihia v R, which was an appeal following a caregiver having been convicted of the murder of a one-year-old child. The Court of Appeal stated that:4

Issues such as the fleeting and reckless nature of the murderous intent by a caregiver under stress (and indeed a broad range of circumstances relating to the offending and to the offender) are to be taken into account in deciding whether the 17 year period is manifestly unjust.

[34]     I have already outlined the facts of your case in some detail.   In my view there are a number of somewhat unusual features that are appropriately taken into account when considering the overall level of your culpability.

[35]     In particular, in your early 60s you took on the enormous responsibility of caring for four children under five. You did not want to see them split up or put into foster care.  I have read the references provided by three of your children. They refer to you as someone who is caring and who will help out anyone in need.   That is certainly consistent  with  your decision  to  take  on  the  care of  your  four  young

grandchildren.

4      Filihia v R [2014] NZCA 401 at [116].

[36]     The children had come from a difficult family background, requiring CYFS intervention.  They faced a range of issues and challenges.   Jermaine in particular suffered from complex health issues including delayed development.  You received minimal support from Jermaine’s parents or other members of your extended family and little or no respite care support.  During the week the children spent considerable time in day care, but during the weekends and evenings you appeared to have been largely on your own.

[37]   You lacked appropriate modern parenting skills and resorted to harsh disciplinary tactics to try and manage the children.   Nevertheless, your assault on Jermaine appears to have been a serious escalation of anything that had occurred previously.

[38]     You fatally assaulted Jermaine late on a Sunday afternoon.  You had had little or no support with caring for the children over the course of that weekend. You were frustrated, stressed and suffering from sleep deprivation having been up the previous night  with  the  youngest  child,  who  had  a  vomiting  bug.    I accept  Mr  Dacre’s submission that the evidence supports the proposition that your attack was impulsive and fleeting in nature, rather than premeditated or prolonged.

[39]     Looking after young children is inevitably stressful at times.  In normal cases such stresses are unlikely to be seen as mitigating factors.  They are part and parcel of parenting or caring for young children.  However, the stress involved in looking after four high-needs children under the age of five over an extended period, with minimal day-to-day support, does in my view take your case into the exceptional category.   I emphasise, however, that no matter how great the stress you were under, your assault on Jermaine was an appalling and inexcusable act.  No level of stress or frustration could ever justify assaulting a defenceless child or throwing him or her down a hallway with severe force.  It is nevertheless necessary, in my view, to take the background context I have outlined into account when considering whether a minimum period of imprisonment of 17 years would be manifestly unjust.

[40]     In terms of personal mitigating factors, Mr Dacre submitted that your age is a further factor I should take into account.  You are currently aged 66.   In 17 years’ time you will be aged 83.  Mr Dacre submitted that, as an older woman, it will be more difficult for you to adjust to prison life, your physical health is likely to become compromised and there is a reduced likelihood that you will live long enough to be eligible for parole.

[41]     The Court of Appeal has recognised in previous cases that advanced age is a factor that may properly be taken into account, in combination with other factors.5   I accept that it is a relevant factor in this case.

[42]     Your  pre-sentence  report  is  concerning.    It  indicates  an  ongoing  lack  of genuine remorse or meaningful insight into  your offending.   Mr Dacre advises, however, that contrary to what the pre-sentence report might suggest, you do accept responsibility for causing Jermaine’s death and you have given him written instructions to that effect.   You do not, however, accept that you had murderous intent.  In all the circumstances, including your prolonged attempts to blame others for your offending, there is simply no basis for any credit for remorse.  On the other hand, no uplift is warranted for your minor and largely historic previous convictions.

[43]     Taking into account the various aggravating and mitigating factors I have outlined, and also having regard to the various cases referred to by counsel,6  I have concluded that your case is an exceptional one.  Given your age and the particular circumstances of your offending, in my view it would be “manifestly unjust” to impose a 17 year minimum period of imprisonment.   Rather, a sentence of life imprisonment with a minimum period of 14 years and six months’ imprisonment would, in my view, adequately meet the underlying policy objectives of s 104.  That is obviously still a significant minimum period of imprisonment, representing a

fairly modest reduction from the 17 year minimum period of imprisonment specified in s 104.  Any greater discount cannot be justified, however, given the extremely

serious nature of your offending against an entirely defenceless child.

5      R v Williams, above n 3, at [92]; and R v Parrish (2003) 21 CRNZ 571 at [22].

6      Including  in  particular  R  v  MS  [2017]  NZHC  2066;  R  v  Harrison-Taylor  HC  Auckland

CRI-2004-092-1510, 12 September 2005; and R v Ellery [2013] NZHC 2609.

Sentence

[44]     Mrs Cooper, please stand.

[45]     On  the  charge  of  murder,  I sentence  you  to  life  imprisonment.     I fix  a minimum period of imprisonment of 14 years and six months. You may stand down.

Katz J