R v Donnelly
[2011] NZCA 433
•1 September 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA235/2011 [2011] NZCA 433 |
| BETWEEN THE QUEEN |
| AND SEAN JAMES DONNELLY |
| Hearing: 1 August 2011 |
| Court: Ellen France, Heath and Lang JJ |
| Counsel: M D Downs for the Appellant |
| Judgment: 1 September 2011 at 10.30 am |
JUDGMENT OF THE COURT
A Leave to appeal is granted.
BThe appeal is allowed to the extent that a minimum period of imprisonment of three years and six months is imposed. The sentence of seven years imprisonment imposed by the High Court otherwise stands.
REASONS OF THE COURT
(Given by Ellen France J)
Introduction
The respondent was charged with murder of a young child but was convicted after trial of manslaughter. He was sentenced by the trial judge, MacKenzie J, to a term of seven years imprisonment.[1]
[1] R v Donnelly HC Palmerston North CRI-2009-054-3582, 25 March 2011.
The Solicitor-General seeks leave to appeal against sentence on the basis that seven years imprisonment without a minimum period of imprisonment (MPI) is manifestly inadequate. The appeal raises issues about the adequacy of the nine-year starting point adopted by the Judge and the absence of an MPI.
Background
The incidents leading to the death of the victim, Cash McKinnon, took place on 19 August 2009. At that time, the respondent was living in Palmerston North with his two young daughters. Cash’s mother lived in the house as well. It appears that the respondent offered her a place to live when she had left a previous address. Her two older daughters lived with her full time. Cash usually lived with her grandparents but would come and stay with her mother from time to time.
Three year old Cash was staying at the respondent’s house on 19 August. Her mother left for work and the oldest child went to school. That left the respondent at home asleep with his two daughters, Cash, and her other sister. After waking, and over the course of the morning, the respondent consumed a considerable amount of cannabis.
As MacKenzie J observed, the only evidence from an adult of what took place is that of the respondent who gave evidence at trial.[2] The respondent said that, at some stage, he went to the toilet where he saw a roll of toilet paper in the toilet bowl. He became angry with Cash, who said she had put the roll in the toilet. The respondent put her in her room for time out. She started squealing and called out that she had wet herself. The respondent was angry with Cash, slapped her on the face, grabbed her by the arm and took her to the bathroom. The respondent slapped her again before leaving her to shower and dress herself.
[2] At [3].
After these events, Cash came into the room where the respondent had been sleeping. The respondent said she became defiant. He described picking her up by the ankles and swinging her around. She came out of his hands and her head must have hit at least one solid object within the room.
The respondent did not seek medical attention for Cash beyond putting a plaster on a lump on her head. He tried to revive her but when the attempts to do so failed, the respondent left her lying on a bed unconscious for at least an hour and a half. It was only when a female friend visited and realised the extent of the injuries that help in the form of a 111-call was made. By the time police and an ambulance arrived, Cash’s injuries were unsurvivable. She died on 20 August 2009.
When initially interviewed by police, the respondent tried to blame the injuries on fighting between the children. At trial, the respondent accepted he had injured Cash but denied murderous intent.
The sentencing remarks
In assessing the respondent’s culpability, MacKenzie J considered that the nature and extent of Cash’s injuries made it plain the level of violence inflicted was extreme, and greater than the respondent acknowledged. MacKenzie J continued:[3]
... Some of the injuries which were consistent with your having slapped the child would require the infliction of moderate to severe force. The head injuries were consistent with her having struck a solid object with considerable force and severe force was involved.
... As I have said, those injuries were consistent with her having struck a solid object, or objects, on more than one occasion and from more than one direction. I must make a[n] assessment of your culpability. I am satisfied that the actions which you undertook did involve serious cruelty to this child but I sentence you on the basis that the extent of the injuries to the head was not intended by you.
[3] At [4]-[5].
MacKenzie J took the jury’s verdict as indicating that the respondent did not intend to cause injury that he knew was likely to cause death. However, MacKenzie J said:[4]
... The severity of the injuries is such that you must have known that what you did could cause her considerable injury. The evidence at trial leads me to the view that you did intend to cause her significant injury. Even if I were to accept that the fatal injuries were caused by you having swung the child and lost control, the evidence leads me to the view that in picking her up and swinging her you must have intended to inflict a considerable level of harm. But the jury’s verdict indicates that you did not know that what you did was likely to lead to her death. You were acquitted of murder. Your acquittal on that charge does not minimise the seriousness of your actions. You committed a brutal attack on a defenceless three year old girl. She had been left in your care and was entitled to expect care and protection from you. Nothing she did should have provoked your actions.
[4] At [7].
On this basis, the Judge considered a starting point of nine years appropriate. From that starting point, the sentence was reduced to seven years to reflect the following mitigating factors:
(a) The respondent was essentially a first offender;
(b)Youth (the respondent was 21 at the time of Cash’s death, 23 at the time of sentencing);
(c)Remorse; and
(d)The respondent’s offer prior to trial to plead guilty to manslaughter.
MacKenzie J concluded it was not appropriate to impose an MPI.
The starting point
This Court in R v Tai[5] said that in those manslaughter cases where Taueki[6] is relevant, the sentencing judge has a choice. One option is to assess the offender’s culpability by reference to, among other things, sentences in comparable cases. Another approach is for the sentencing judge to consider the matter in Taueki terms with an appropriate adjustment for the fact that death has resulted. The Court noted further that a “counsel of perfection” would be to use both approaches, “each providing a check on the other”.[7]
[5] R v Tai [2010] NZCA 598.
[6] R v Taueki [2005] 3 NZLR 372 (CA).
[7] At [12].
In terms of the other comparable cases, counsel for the Crown relies on R v Leuta and R v Waterhouse.[8] Dr Downs submits that the respondent’s culpability is more serious than that of either of the offenders in those two cases, in which starting points of 10 and 11 years imprisonment respectively were seen as appropriate. In response, Mrs Smith says MacKenzie J had regard to these two cases and that, in any event, the offending in those two cases was more serious.
[8] R v Leuta [2002] 1 NZLR 215 (CA) and R v Waterhouse (2004) 20 CRNZ 897 (CA).
It is helpful to set out, albeit fairly briefly, the facts of these two cases.
Mrs Leuta pleaded guilty to manslaughter. Her young child died after she beat him. Mrs Leuta fashioned an old rubber fan belt into a strap which she used to beat the victim. She also, at least initially, used an old car aerial to hit the child. The resultant injuries were extensive and the case was described as more serious than those involving a brief loss of control. This Court said the beating was “deliberate, prolonged and brutal”.[9] As in the present case, there was also a failure to provide care. As we have indicated, in Leuta this Court found that a starting point of 10 years imprisonment would have been appropriate. Taking into account mitigating factors the Court said a sentence of eight years imprisonment would have been warranted but, on a Solicitor-General appeal, a sentence of seven years imprisonment was substituted.
[9] At [85] and see [92].
The Court saw the culpability of the offender in Waterhouse as “about equal” to that of Mrs Leuta.[10] Mr Waterhouse was charged with murder but was found guilty of manslaughter after trial. The victim in that case was a boy just under four years old who lived with Mr Waterhouse under a foster care arrangement. Mr Waterhouse became angry after the boy came home with popcorn in his lunchbox. The child was pushed across the room and then punched four times on his exposed stomach. The child was also found with injuries to other parts of his body including bruises to the head and multiple small cuts and bruises.
[10] At [25].
This Court saw the use of fists as equating to the use of a weapon by Mrs Leuta and saw no difference between the two cases in terms of cruelty and the abuse of trust. In Waterhouse, the Court was not prepared to say a starting point of 11 years was beyond the available range but found that the starting point of 12 years adopted by the sentencing judge was too high. From the starting point of 11 years, a final sentence of eight years imprisonment was imposed after taking into account mitigating factors.
Dr Downs says the offending in the present case is more serious because the likelihood of serious injury, or worse, is heightened by the focus on the administering of blows to the head. On this analysis, the absence of a weapon in this case is of little moment.
It is not easy to make comparisons in this area. That point is illustrated by the summary schedule of sentences for cases of manslaughter involving children in Woodcock v R[11] which indicates a range of sentencing outcomes. This Court in Woodcock made the point that it was understandable that the sentences in the summary were not all necessarily reconcilable “given the factual differences of each case”.[12] That said, we agree that, on one view of it, there is little difference in the respondent’s culpability from that in either Leuta or Woodhouse. Certainly, no issue could have been taken if a starting point of 10 years had been adopted in this case.
[11]R v Woodcock [2010] NZCA 489 at Appendix A; leave to appeal refused: Woodcock v R [2011] NZSC 8.
[12] At [41].
We turn then to the check using the Taueki guidelines.
The Crown contends that the aggravating features of the offending put it within band 3 of Taueki, for which starting points of between 9 and 14 years are appropriate. Dr Downs emphasises this offending involved very serious if not extreme violence; an attack to the head; a vulnerable victim; an element of breach of trust; and injuries which led to Cash’s death. Mrs Smith on behalf of the respondent emphasises that the verdict was manslaughter rather than murder so there was an absence of murderous intent.
The starting point adopted was within the band identified as appropriate by the Crown, albeit at the bottom end. The analysis in Tai would suggest some uplift, probably leading to a starting point of ten years, to reflect the fact the consequence of the serious violence in this case has been death itself.[13] However, while we accept that the approach taken was lenient, on a Solicitor-General appeal we are not prepared to intervene.
Minimum period of imprisonment
[13] R v Tai at [12].
Section 86 of the Sentencing Act 2002 sets out the circumstances where an MPI may be imposed in relation to a determinate sentence of imprisonment.
On the imposition of an MPI the Judge said:[14]
... I may impose a minimum period of imprisonment if I am satisfied that the minimum period otherwise applicable is insufficient for the purposes of holding you accountable for the harm done to the victim and the community, denouncing your conduct, deterring you or others, or protecting the community from you. The first three of those factors are already reflected in the sentence which I have imposed and I do not consider that a minimum period in excess of the normal minimum should be imposed for any of those purposes. I do not consider that in your case the protection of the community from you requires the imposition of a minimum term. I decline to impose a minimum term.
[14] At [18].
Mrs Smith submits that the Judge properly turned his mind to the imposition of an MPI. However, the Judge appears to have considered that, given the sentence already imposed, the only remaining issue was whether an MPI was necessary for the protection of the community. That is incorrect. This Court in Taueki noted denunciation and deterrence are both important sentencing values in cases of serious violence.[15] We agree with Crown counsel that, given the nature of the case, an MPI was necessary to hold the respondent accountable for the offending and for the purposes of denunciation and deterrence.
[15] At [57].
We agree also with Dr Downs that the enactment of s 9A of the Sentencing Act 2002 emphasises the legislative concern about cases involving violence against, or neglect of, children under 14.[16] The section directs the sentencing judge in such cases to take into account specified aggravating features. Those features include the defencelessness of the victim and the effect on the victim. In this case, the victim was a vulnerable young girl left in the respondent’s care, and the effect was death.
[16] As was discussed in R v Pene [2010] NZCA 387 at [12]–[14].
Mrs Smith properly accepted that if an MPI was to be imposed, that term should be no less than half of the sentence. We agree that release any earlier than after a period of three years and six months would not meet the statutory test.
Result
For these reasons, leave to appeal is granted. The appeal is allowed to the extent that an MPI of three years and six months is imposed. The sentence of seven years imprisonment imposed by the High Court otherwise stands.
Solicitors:
Crown Law Office, Wellington for Appellant.
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