R v H

Case [2021] NZHC 2116 13 August 2021

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ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-012-2009

[2021] NZHC 2116

THE QUEEN

v

H

Hearing: 13 August 2021

Appearances:

M Harborow and H Macdonald for the Crown J Kincade QC and A Shendi for the Defendant

Sentence:

13 August 2021

SENTENCING NOTES OF GORDON J

Solicitors: Crown Solicitor, Auckland Counsel: J Kincade QC, Auckland

R v H [2021] NZHC 2116 [13 August 2021]

Introduction

[1] Ms H, you appear for sentence on two representative charges of ill-treatment of a child and one representative charge of theft. The maximum penalty for those offences is 10 years’ imprisonment1 and three months’ imprisonment respectively.2

[2] You pleaded guilty to the charges following my sentence indication on 26 March 2021.3 In that decision I summarised the background to your offending. I will not repeat it here. The sentence indication will be annexed to this sentencing decision once this decision is typed up.

[3] For the reasons set out in my sentence indication, I adopted a starting point of six years’ imprisonment.

[4] One of the issues discussed in the sentence indication was whether the starting point of six years should be reduced because of any causative link between your diagnosis of Factitious Disorder Imposed on Another (FDIA) and your offending. I indicated that if the necessary causative link were to be established, a discount of between 30 to 40 per cent would likely be appropriate.4

[5] At the time the Court gave its sentence indication, you had provided a report from psychiatrist Dr Rishi Duggal who made the diagnosis of FDIA. Dr Duggal’s report had been prepared for another purpose and there was no discussion of, or opinion given about, any causative link between that disorder and your offending.

[6] Subsequent to the sentence indication hearing, you tendered two further reports from Dr Duggal to support your position that the necessary causative link had been established. The Crown then filed a report from psychiatrist Dr Ian Goodwin and a report from Dr Louise Webster in support of the Crown position that there was no such link.

1      Crimes Act 1961, s 195(1).
2      Sections 219(1)(a) and 223(d).
3      R v H [2021] NZHC 643.
4 At [64].

[7] In the face of the differences of opinion, the Court held a disputed facts hearing. I issued a decision in which I held that the necessary causative link had not been established and accordingly, there would be no reduction in the starting point on that account.5

Summary of parties’ position

[8] As to the appropriate end sentence, the respective positions of the parties today are as follows. Mr Harborow for the Crown submits that the appropriate end sentence is four years’ imprisonment. Ms Kincade QC, on your behalf, submits the appropriate end sentence is 10 and a half months’ home detention.

Victim…

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 H

Details

AGLC: R v H [2021] NZHC 2116
Case: [2021] NZHC 2116
Decision Date: 13 August 2021

CaseChat Overview and Summary

The defendant, H, was sentenced for two charges of ill treatment of a child and one charge of theft. The court had to decide on an appropriate starting point for sentencing and consider various mitigating and aggravating factors. The starting point was set at six years' imprisonment, with an additional three months for the theft charge. The court allowed discounts for the defendant's guilty plea, personal circumstances, remorse, and time spent on electronic monitoring bail. The final sentence was 11 months' home detention with special conditions, including a prohibition on alcohol and drug use, restrictions on contact with the victims, and mandatory psychological assessment and treatment. The court also made a protection order in favour of the defendant's son. Additionally, the court extended the interim name suppression order until a formal application for permanent name suppression was determined.

Orders