R v Duff

Case [2018] NZHC 2690 18 October 2018

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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2017-069-000543 [2018] NZHC 2690

THE QUEEN

v

DONOVAN MICHAEL DUFF

Hearing: 18 October 2018

Counsel:

AJ Gordon and CHR Harvey for Crown
MM Dorset and RE Webby for Defendant

Judgment:

18 October 2018

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:
Crown Solicitor, Rotorua. MM Dorset, Rotorua.
RE Webby, Tauranga.

R v DUFF [2018] NZHC 2690 [18 October 2018]

Introduction

[1] Mr Duff, after a jury trial before me, you were found guilty of your daughter’s murder. Maija was only nine months old when you killed her. It is common ground you will be sentenced to life imprisonment. The only issue today is the period you must serve before you are eligible for parole. The law calls this a minimum period.

[2] Before going on, I acknowledge the presence of whanau—and their tremendous loss. Plainly, Maija was a much-loved child.

Facts

[3] Maija was born on 14 June 2015.

[4] On the evening of Friday, 11 March 2016, she was returned to your care. She had been with others for the day. She was well. Maija’s mother, your partner, was elsewhere this night. You and Maija were home alone.

[5] Overnight, you inflicted fatal injuries to Maija’s head. Your precise mechanism of force remains unclear. Only you know exactly what you did. However, expert evidence at trial established Maija suffered at least three instances of blunt force trauma to her head. The experts agreed “significant” force was required. One likened Maija’s injuries to those caused in road traffic accidents; another likened the force to a kick to the head by a horse.

[6] These episodes of trauma caused what were described as “devastating” injuries to Maija’s skull, and associated bleeding around her brain and base of the brain. The injuries would have caused either immediate or near-immediate unconsciousness. An expert of international standing said Maija would have been very unlikely to survive even if a neurosurgeon had been standing by ready to operate.

[7] The precise timing of the injuries is unclear. However, what is clear; you did not raise the alarm immediately. You did not call an ambulance. You waited until after
5.30 am before leaving to get help. The experts said Maija’s condition would have

been obvious. You did nothing. So, while prompt medical attention would not have saved Maija’s life, you did not even try.

[8] You defended the case on the basis you did nothing to hurt your daughter, and her injuries might have been the product of accident. For example, falling from the bed. The experts firmly rejected accident as a reasonable possibility. Ms Dorset defended you with vigour and care, but in truth, you had no defence.

Victim impact

[9] I have received two victim impact statements: one from Maija’s grandmother; the second from her grandfather. Unsurprisingly, they describe Maija’s death as the worst thing that could happen to any grandparent. They describe a hole in the family…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Duff

Details

AGLC: R v Duff [2018] NZHC 2690
Case: [2018] NZHC 2690
Decision Date: 18 October 2018

CaseChat Overview and Summary

Donovan Michael Duff was found guilty of the murder of his nine-month-old daughter, Maija. The only issue before the court was the minimum period Duff must serve before being eligible for parole. Duff's offending involved at least three instances of significant force to Maija's head, causing her death. The court accepted the prosecution's argument that this murder was especially bad due to Maija's vulnerability because of her age. Duff's personal circumstances, including a difficult upbringing and involvement with gangs and drugs, were considered, but the court found they did not make a 17-year minimum period manifestly unjust.

The court found the murder to be an obvious case for the application of the especially bad murder provision, which requires a minimum period of at least 17 years unless manifestly unjust. The court considered similar cases and noted that the 17-year benchmark is the norm, but it was satisfied that Duff's offending warranted a minimum period of less than 15 years. The court found that Duff's personal circumstances, while regrettable, did not explain or detract from the gravity of his actions. Duff's lack of remorse and refusal to acknowledge wrongdoing further supported the 17-year minimum period.

In summary, the court sentenced Duff to imprisonment for life, with a minimum period of 17 years before he is eligible for parole. The court acknowledged the devastating impact of Duff's actions on his family and the community, and emphasised the importance of holding offenders accountable for their actions, particularly in cases of such heinous crimes against vulnerable victims.

Orders