R v Donnelly HC Palmerston North CRI-2009-054-003582
[2011] NZHC 254
•25 March 2011
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2009-054-003582
THE QUEEN
v
SEAN JAMES DONNELLY
Counsel: B D Vanderkolk for Crown
L O Smith for Prisoner
Judgment: 25 March 2011
SENTENCING NOTES OF MACKENZIE J
[1] Sean James Donnelly you appear for sentence on one count of manslaughter. You were convicted following your trial. You were found not guilty of murder but guilty of manslaughter.
[2] In August 2009 you were living in Palmerston North, with your two young daughters. Also living in your house at the time was the mother of your victim. You had offered her somewhere to live when she had left a previous address. She had living with her full time her two older daughters. Her youngest daughter, Cash McKinnon, who was then aged three years and three months, normally lived with her grandparents but visited and stayed with her mother from time to time.
[3] Cash was staying at your house on 19 August. That morning, her mother left for work. The oldest child went to school. The four youngest children, that is your two daughters and Cash and her sister, were left alone in the house with you. You
were asleep. You had consumed, and did consume in the course of these events, a
R V DONNELLY HC PMN CRI-2009-054-003582 25 March 2011
considerable quantity of cannabis. The only evidence from an adult of what occurred that morning is your own. The jury’s verdict is consistent with the jury having accepted that your version of events might reasonably be true. You say that you woke up. You smoked some cannabis. You checked the three girls who were playing in a bedroom. They were playing and fighting among themselves as small children will do. You told them to stop it and returned to your cannabis smoking. At some stage you went to the toilet where you saw a roll of toilet paper in the toilet bowl. You became angry with Cash because she had put the toilet roll in the bowl. She had done the same thing some days earlier and you had told her not to do it again. You put her in her room for time out. She started squealing and called out to you that she had wet herself. You were angry with Cash. You slapped her on the face, grabbed her by the arm and took her to the bathroom. You slapped her on the back. You took Cash to the bathroom and left her to shower and dress herself while you went back to smoking cannabis. She came into the room where you had been sleeping and you say that she became defiant of you. You say that you picked her up by the ankles and swung her around and that she came out of your hands when you lost your grip. Her head must have hit a solid object within the room, at least one solid object within the room and potentially more than one.
[4] That is your account of events up to the stage where Cash suffered her injuries. It is clear from the nature and extent of her injuries that the level of violence which you inflicted on her was extreme, and greater than you have acknowledged. 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.
[5] As I have said, those injuries are consistent with her having struck a solid object, or objects, on more than one occasion and from more than one direction. I must make as 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.
[6] Despite the level of the force that you had inflicted on the child, you did not take any steps to attend to her obvious injuries, beyond the incongruous one of putting a plaster on a lump resulting from a very severe impact to the head. You also made some crude attempts to revive her but when those failed and she was still deeply unconscious you left her lying on a bed without giving her any further attention, for a period of at least an hour and a half. It was only when a female friend of yours visited you and realised the extent of the injuries that help was summoned. She made a 111 call. Police and ambulance arrived very promptly. By the time they arrived, Cash’s injuries were unsurvivable. A CT scan at the hospital showed an extensive subdural haemorrhage. Life support was turned off the following day and Cash died on 20 August 2009.
[7] Initially, when you were interviewed by police, you made a hopeless attempt to blame the injuries on fighting between the children. The nature and extent of the injuries were such that there was never the remotest possibility that that was a plausible explanation. At trial, you accepted that you had inflicted the fatal injuries but you denied that you had murderous intent. The jury’s verdict indicates that you did not intend to cause injury that you knew was likely to cause death. I consider that that verdict does appropriately represent your level of culpability. 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.
[8] Your case is one of those which are tragically all too common. Young men, left to care for children, react to a responsibility for which they are unsuited in what is apparently the only way that they know – to lash out with violence. These tragic
events would not have happened had you displayed even a minimal level of care and concern for, and understanding of the needs and actions of, a tender and vulnerable little girl. The effect of these events has been tragic. The victim impact statements show the effect of this offending on Cash’s family and your counsel rightly describes them as harrowing.
[9] As to your personal circumstances you are 23 years of age. Your parents separated when you were about five years old and you travelled between them. You left school part way through your sixth form year without achieving any formal qualifications. You began a heavy consumption of alcohol at a young age and your evidence at trial was that at the age of 14 you were drinking so heavily that you were hospitalised and at one point had to be revived from near death. After that you gave up alcohol and became a heavy daily cannabis user. You have been employed somewhat intermittently in temporary work and had been in receipt of a domestic purposes benefit. You have a number of convictions for driving offences and breach of community work sentences which have been imposed for those driving offences. There are no previous convictions which I regard as relevant to the task of sentencing you here.
[10] The key factors identified as underpinning your offending are a propensity to use violence, cannabis abuse, and poor lifestyle balance. You acknowledged that your use of violence against the victim stemmed from anger and your lack of ability to deal with the situation in a pro-social and reasoned manner. The report writer noted what appeared to be genuine remorse during the interview. You are assessed as being at medium risk of re-offending but that you have demonstrated some insight into your offending.
[11] Counsel for the Crown submits that the most significant purposes of sentencing are to denounce your conduct and to deter you and others from similar offending. I endorse counsel’s submissions that the violent discipline of a child which results in the death of that child must be denounced and deterred in the strongest possible terms.
[12] I must fix a starting point which reflects those purposes. The Crown submits that there are a number of aggravating features. First is the extent of the episode of violence inflicted upon the victim as evidenced by the injuries she suffered. There were a large number of external injuries attributable to your actions. The nature and extent of the injuries indicates a period of violence of some duration. Your own evidence acknowledges at least two separate occasions in which violence was inflicted, first after you had put her in her room for time out and later when she returned to your room, after showering and dressing herself.
[13] Next the Crown notes that you have abused a position of authority and trust in relation to the victim. You were left in charge of these young girls. Your victim was entitled to look to you for the care and nurture which a three year old child requires. You failed to provide that. Related to that is the vulnerability of your victim, because of her age. Violence to a small and defenceless child is both brutal and cowardly.
[14] A serious aggravating feature is that you did not seek medical assistance. It must have been apparent to you that Cash was very badly injured. She was unconscious. The urgent need for medical attention was immediately obvious to the friend who visited you. You simply failed to face up to the enormity of what you had done.
[15] Counsel have referred to a number of comparable cases in their submissions as to the appropriate starting point. There is a compilation of sentences imposed in child manslaughter cases since 2001 in the Court of Appeal’s decision in R v Woodcock.[1] The Court noted that the sentences are not necessarily reconcilable because of the factual differences between the cases. They noted that the more serious have attracted a starting point of 10 years and above and that most incorporate the aggravating features of prior offending which establishes a pattern of abuse. Your offending does not fall at the more serious end of the spectrum. Nor is
there any aggravating feature of prior offending establishing a pattern of abuse. The
Court of Appeal noted that the absence of that feature, allowing the fatal blow to be properly characterised as an isolated event evidencing a momentary and
uncharacteristic loss of control, may operate to mitigate the starting point depending on the circumstances.
[1] R v Woodcock [2010] NZCA 489.
[16] Counsel for the Crown submits that an appropriate starting point in the range of 11 to 12 years is appropriate. The Crown refers particularly to R v Leuta,[2]
Woodcock and R v Waterhouse[3]in making that assessment. Your counsel submits
that the appropriate starting point is in the range of six to eight years. I do not propose to discuss the cases in detail. I have considered all of the authorities to which counsel have referred and those which are referred to in Woodcock. As counsel for the Crown submits the essence of the difference between the Crown and the defence as to the starting point essentially relates to the assessment of the seriousness of your offending. I have described that as I see it and the view that I take. Assessing your offending in that way and having regard to the comparable cases, and to fixing a starting point which I regard as consistent with them, I fix a starting point of nine years.
[2] R v Leuta [2002] 1 NZLR 215 (CA).
[3] R v Waterhouse CA 33/04, 13 May 2004.
[17] I must make an adjustment to that starting point to reflect any aggravating and mitigating personal factors. There are no aggravating factors which require an uplift. As to personal mitigating factors you are essentially a first offender. You are comparatively youthful. I also accept that you have shown a significant degree of remorse. That is evident from the pre-sentence report and it is evident from the letters which you have written to the family. Also, although the matter had to proceed to trial because the Crown was not prepared to accept a plea of guilty to manslaughter, you did offer to plead to the offence of which you were ultimately convicted. That offer came at a comparatively late stage, in July 2010. Your counsel has explained the reason for that. Taking all of the mitigating factors into account I consider that an appropriate discount to reflect all of these factors is two years. That leads to an end sentence of seven years, which is the sentence I impose. You a sentenced to a term of seven years imprisonment.
[18] Counsel for the Crown submits that a minimum non parole period should be imposed. 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.
[19] That is all, you may stand down.
“A D MacKenzie J”
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