R v E HC Auckland CRI 2009-090-12059

[2010] NZHC 1749

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF PRISONER

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-090-12059

THE QUEEN

v

E

Charge:          Manslaughter

Plea:               Not Guilty

Appearances: Christine Gordon SC and Rachael Reed for Crown

John Anderson for Prisoner

Sentenced:     28 September 2010

2 years 10 months imprisonment

SENTENCING NOTES OF BREWER J

SOLICITORS

Meredith Connell (Auckland) for Crown

John Anderson (Auckland) for Prisoner

R V E HC AK CRI-2009-090-12059  28 September 2010

Introduction

[1]      You have been found guilty, E, of the manslaughter of your baby son.  The jury found you not guilty of his murder but also found that you were not entitled to the lesser finding of infanticide.   The maximum term of imprisonment for manslaughter is life.  That maximum reflects society's view about the sanctity of a person's life.

[2]      Today is one where we have to acknowledge the fact that you killed a baby.  I must impose the sentence of the Court accordingly.   But today is also, I accept, incredibly sad.  It is incredibly sad because we acknowledge the death of an innocent child through the criminal neglect of his mother.

[3]      There  are  a  lot  of  misconceptions  about  the  purposes  of  sentencing, particularly in a case where a life has been lost.  I want to pause to explain that the purpose of sentencing here today is not to put a value on baby A's life and to take that value away from your life.   The value of baby A's life is incalculable.   The purpose  of  sentencing  here  today  is  to  balance  the  factors  that  apply  to  any offending, including the need to punish but also to include the needs of rehabilitation and reintegration with society.  There is also a need, as much as we can, to impose a sentence that is consistent with other sentences that have been imposed for manslaughter of a child.  That is one of the reasons why the lawyers have taken so much  time  today  to  refer  me  to  the  other  cases.    To  put  it  another  way,  this sentencing is not to make up for baby A's death.   It is to react to his death in the fairest way possible and in accordance with the way that our system of justice works.

[4]      I acknowledge that there are others who have been affected greatly by the offending  -  baby  A's  father  in  particular.    He  has  completed  a  victim  impact statement which I have read and, as anyone would expect, he has recorded his grief and the ongoing difficulties associated with the loss of his young son.

[5]      Before I go to the formal parts of the sentence, I want to acknowledge the

Crown for its very balanced argument and to your lawyer, Mr Anderson, for his

heartfelt submissions on your behalf.  He has certainly said and written everything that can be on your behalf.

Facts

[6]      I must  first  deal  with  the  facts,  and  I will  do  so  within  a  very  narrow compass.

[7]      On the morning of Sunday, 8 November 2009 you were at home with your two children, B aged five years and baby A aged 13 months.  Your husband had left for work shortly before.

[8]      Things had not been going well in your life.  You had arrived here with your children from Fiji to join your husband only eight months before.  In addition to the stresses of adapting to a new country, your domestic situation with your husband was not good.  I do not need to go into detail but there had been domestic violence against you, your children had been taken into CYFS care for a considerable period, and you had suffered from a major depressive disorder.  You and your husband had got back together again and the previous Friday CYFS had returned the two children to you.   On the day of baby A's death the psychiatrists agree that you were still suffering from a major depressive disorder, the severity of which was either mild or at the mild end of moderate.

[9]      Shortly after 8 o'clock that morning you ran a bath for baby A and sat him in it.  It was the adult's bath and the water was up to his chest above the nipple line. You soaped him, put his toys in the bath with him and then left him alone, shutting the door behind you, or rather pulling the door to.  Your intention in doing so was to leave baby A to play in the bath while you made B's breakfast.  I accept the Crown's submission that when you left baby A alone in the bath you knew that you were going to be absent for some time.

[10]     Your  evidence  was  that  you  returned  to  the  bathroom,  having made  B's breakfast, some 15 minutes later.  Baby A was floating face down in the bath.  You picked him up.  He was blue around the lips and you assessed him as being dead.

You did not try to revive him.  Instead you wrapped him up and laid him on the bed in your bedroom.   You did not call 111, nor did you try to contact your husband. Instead you logged on to the internet and accessed various websites while you waited for your husband to return.  When he did return you told him that baby A was dead.

[11]     Mr Anderson submits that you believed that baby A would be safe in the bath and that you acted as an exemplary mother by closing the door to exclude draughts and leaving baby A to play with his toys.

[12]     As to the exemplary mother, I disagree.   Baby A was not your first child. You were experienced as a mother, having brought B through the equivalent period of her life.  You were aware that baby A was not yet stable.  The evidence was that only the week before while in the baby's bath baby A had fallen forwards into the water and you acknowledged that if you had not been there to pick him up he might well have drowned then.   This was the first time that baby A had been left in the adult's bath with the water nearly up to his neck.

[13]     I assess  your actions on that day as being at the higher end of criminal neglect.

Starting Point

[14]     Against  those  facts  I  must  fix  the  starting  point  for  your  sentence. Mr Anderson will, I am sure, have explained to you what the starting point means. But for your benefit and others in the Court, it means the term of imprisonment that would be appropriate to reflect the circumstances of the crime before any favourable factors  are  taken  into  account.    It  is  a  measure  of  your  blameworthiness  or culpability, looking at the act in isolation.  I hope you understand that.

[15]     As  both  of  the  lawyers  have  said,  there  is  no  sentencing  tariff  for manslaughter.  Sentences in this Court for this category of manslaughter have ranged from cases where there was a conviction and discharge right through to very substantial periods of imprisonment.  What that means is that the Court can take only limited benefit from looking at the facts of other cases and trying to find parallels.

[16]     Fixing the starting point will take into account the aggravating factors.  It is of particular relevance here that you were baby A's mother.  He was utterly unable to care for himself and he was utterly dependent on you.  It was your duty to take care of him.

[17]     I accept of course that you had no intention of killing baby A.  I accept that you did not mean to harm him.  When you left baby A alone in the bath and went to make breakfast for B it was not in your mind that baby A might very well drown.

[18]     Taking those factors into account and drawing on my knowledge of the cases, including those cited by the lawyers here today, I am satisfied that an appropriate starting point for your sentence is four years' imprisonment.

Mitigation

[19]     Against  that  I  must  take  into  account  in  your  favour  what  are  called mitigating factors.  Those are features of the case that are personal to you.

[20]     First, there is your offer, made on the eve of your trial, to plead guilty to manslaughter.   I have listened to what Mr Anderson has said, but I accept that Ms Gordon is right on the law in this matter.   I can give that factor only limited weight because it was made so late in the piece.  But it is, nevertheless, a sign of your acceptance of responsibility.  I also take into account your natural sorrow and genuine remorse.  I am sure that you are devastated by what you have done.

[21]     The second factor counting in your favour is your character.  Mr Anderson has correctly pointed out that you surmounted a very difficult childhood to gain a coveted place at the Fiji Medical School and a qualification as a dietician.  You have no previous convictions and you are entitled to credit for your exemplary character. You are 29 years of age.  Your parents are dead.  You are living in this country in a flat and you do have some very considerable support from your extended family.

[22]     There is no doubt that at the time of your offending you were suffering from a major depressive disorder which, while not of such a severity as to render you

incapable of carrying out your day-to-day tasks and responsibilities, nevertheless made it much more difficult for you to function in the way that you would normally.

[23]     I  must  now  make  certain  specific  or  arithmetical  deductions  for  these favourable qualities.  That is what the law requires me to do.  I allow a discount of six months for your exemplary character.  I allow a further discount of six months in respect of the major depressive disorder you were labouring under, and I do that specifically because my view of the evidence is that your judgment was significantly adversely affected by the disorder when you made the decision to leave baby A alone in the bath.  I allow a further discount of two months for your offered entry of a plea of guilty.  That leaves an adjusted sentence of two years 10 months' imprisonment; in other words, those favourable or mitigating factors have effectively brought the starting point down from four years to two years 10 months.

Name Suppression

[24]     To this point your name has been suppressed.  Mr Anderson has asked for the name suppression to be made permanent and the Crown supports that.

[25]     Judges  do  not  like  suppressing  the  names  of  offenders  because an  open justice system is important to all New Zealanders.   However, there are occasions when name suppression is necessary in order to protect the innocent and the vulnerable.  In this case the Court heard evidence of the alleged sexual abuse of your daughter,  B,  while  in  CYFS  care.    That  fact  was  reported  in  the  news  media, although as a matter of law B's identity was protected.  If your name could now be published people would soon put two and two together and B would be identified and perhaps made to suffer further.  It is on that basis that the Crown has taken the unusual position of supporting the application.

[26]     For B's sake then, and not yours, the interim order suppressing your identity is now made final.  Please stand down.

Brewer J