R v H
[2021] NZHC 2116
•13 August 2021
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 impact statements
[9] In my sentence indication I referred to victim impact statements of your son’s father and your son’s paternal grandmother. I took them into account in setting the starting point. Your son’s father is present at the hearing today and he has read out his victim impact statement. For that reason, I repeat what I said in my sentence indication.6
In considering your culpability I have read the victim impact statement from S’s father who now has the care of S along with the two other children you had together, S’s older siblings. I have also read the victim impact statement from S’s paternal grandmother. There was the immediate impact of being told S might die. And then there was the further impact when it became apparent that you were responsible. Not only was there a breach of trust in relation to S but there was also a breach of trust in relation to the family members. They both speak of the significant impact – psychological, social, physical and financial – that your offending has had on them and the consequential immense disruption to their lives and the lives of your children.
[10] Your son’s paternal aunt has also prepared a victim impact statement which she read out today. Her statement confirms the profound impact I have referred to on each and every family member.
5 R v H [2021] NZHC 1988.
6 At [42].
Section 9A(2)(b) – is a further uplift required?
[11] In my sentence indication I considered the application of s 9A(2)(b) of the Sentencing Act 2002. That provides that the Court must take into account, in relation to any harm resulting from the offence, any serious long-term physical or psychological effect on the victim in a case involving violence against a child under the age of 14 years. I concluded, on the basis of the evidence before the Court at that time, it would be speculative to say that your offending would have long-term adverse effects on your son, and accordingly it was inappropriate to adopt this as an aggravating factor. The evidence before the Court on the sentence indication was focused particularly on potential long-term physical effects. However, the Crown did make a submission on long-term psychological impacts. In my decision I said:7
Further on this issue of any long-term impacts, the Crown also submits it is inevitable that there will be a significant and ongoing psychological impact when S discovers the offending you committed against him. Ms Kincade submits that the Court should not speculate on the long-term effects on S because the Court may then adopt an aggravating factor which may not come to fruition.
[12] In her report prepared for the disputed facts hearing, Dr Webster refers to psychological impacts. The Crown submits that Dr Webster’s report provides an evidential basis for finding that your offending will have a long-term psychological impact on your son which should be recognised as an aggravating feature resulting in an uplift to the starting point. The Crown submits that assessing the long-term effects of offending, particularly psychological effects on an infant or very young child is always going to involve some degree of speculation. The Crown further submits that the way the section is framed demonstrates that Parliament is content for the Court to engage in some level of assessment as to what will happen in the future. Mr Harborow says that Dr Webster provides evidence that elevates the exercise beyond speculation. It addresses effects your son is likely to experience. But recognising there is a degree of uncertainty, the Crown submits that an uplift should be limited to five per cent.
[13] Ms Kincade submits no further uplift is required. She says the position as to long-term effects is precisely the same as it was at the time of the sentence indication.
7 R v H, above n 3, at [34].
She says Dr Webster’s report does not advance the matter because she did not examine your son, she only reviewed literature on the topic. Further, Ms Kincade submits the general statistics about what can happen in cases of medical child abuse do not apply in your case as the children are no longer in your care. Ms Kincade also submits it would be unfair to now accept the report from Dr Webster as providing support for an aggravating factor, as the sentence indication has already been given and accepted.
[14] I address the latter point first. A court gives a sentence indication on the basis of the material and evidence available at the time. There is always the possibility that further relevant material will become available before sentencing. I will therefore receive Dr Webster’s report and take it into account.
[15] I accept that Dr Webster provides evidence regarding long-term psychological effects with a sufficient level of certainty for the Court to take it into account.8 She says:
Psychological health is also impacted by medical child abuse … [S] is at risk of adverse cognitive, developmental and emotional sequelae. He also faces the trauma of learning, when he is older, about his mother’s medical abuse of him. All forms of child abuse are associated with an increased prevalence of child psychopathology and there is some evidence that abuse by a close family member is more damaging than abuse by a stranger. [S] is likely to require careful on-going monitoring, and targeted therapeutic interventions for any difficulties that emerge.
[16] I consider an uplift of five per cent is appropriate. This results in a further three months (rounded down in your favour) being added to the starting point of six years.
Personal circumstances
[17] I now turn to your personal circumstances in order to consider whether there are any mitigating factors relative to you personally that would mean further reductions are appropriate. I note the Crown does not argue that there are any personal aggravating factors that would warrant an uplift.
8 See L (CA719/2017) v R [2019] NZCA 676 at [52], where in a similar case the Court of Appeal accepted that the appellant’s actions would produce serious psychological effects on her children (as well as serious long-term physical effects).
[18] I have received the Provision of Advice to the Court (PAC) Report dated 5 May 2021, which was not available to me at the sentence indication. I have also received and read carefully your letter to the Court and other letters and materials that were provided to the Court with Ms Kincade’s submissions.
[19]I address each of the matters personal to you in turn.
Guilty plea
[20] In my sentence indication, I said that if guilty pleas were entered, you would be entitled to a 25 per cent discount.9 You pleaded guilty and accordingly the 25 per cent discount applies.
Personal background
[21] The Crown acknowledges that mental health disorders can be taken into account at sentencing not only in reduction of culpability, but as a mitigating circumstance where their existence, or foreseeable recurrence, render a given sentence more subjectively punitive.10 But the Crown submits that only a modest discount is justified on this basis. Mr Harborow submits that your mental health is able to be managed in prison and that you did not experience any significant difficulties adjusting to being in prison when you were remanded in custody. The Crown therefore submits that only a modest discount is justified. Mr Harborow submits that a discount of five per cent may be appropriate to reflect your dysfunctional background and upbringing, history of psychiatric illness and previous lack of serious violent criminal offending.
[22] The Crown also submits that there should be no discount to reflect prospects of rehabilitation. In support of that submission, the Crown refers to Dr Webster’s comment that you have a “long history of poor engagement with mental health and social services”. Mr Harborow submits the Court should put to one side the comments in the PAC report regarding your prospects of rehabilitation preferring reliance on the reports prepared for the disputed facts hearing.
9 R v H, above n 3, at [59].
10 E (CA689/2010) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [70](e).
[23] On your behalf, Ms Kincade submits that this Court should take into account your mental health background and general history. She says it is too simplistic to conclude that because you have received some treatment, your psychiatric background has been ameliorated to the extent that a sentence of imprisonment would not affect you. While acknowledging loss of contact with your children is an inevitable consequence of your offending, Ms Kincade submits that a sentence of imprisonment would have a huge impact on you as it would remove access to your children.
[24] Ms Kincade says you have tried to access mental health services, but currently publicly funded mental health services are overly subscribed in Christchurch. Ms Kincade says you cannot afford private counselling; therefore, you are applying for ACC funding. She says Dr Duggal, Dr Goodwin, Dr Webster and others have all advised therapy and they say counselling would be of benefit to you.
[25] Ms Kincade submits it is significant that the PAC report says you did not minimise the impact of your offending on your son and your other children. She refers to the studies you have been completing while awaiting sentence as evidence of your prospects of rehabilitation and reintegration into society. Ms Kincade submits that a discount that covers mental illness, prospects of rehabilitation and family support should be in the order of 15–20 per cent, which she submits would be a modest discount.
[26] As the Crown correctly acknowledges, mental health issues can be used both retrospectively (in assessing culpability) and prospectively (in assessing the future subjective impact of the starting point on an offender.11 In L v R, the Court of Appeal said:12
In addition, prospective effect may be found, for example, where a sentence might weigh more heavily due to a disorder, or where an appropriate sentencing response ought to involve a significant therapeutic element to treat the disorder so that it does not continue. The survey of cases in relation to this second stage in E (CA689/2010) v R showed discounts had ranged between 12 and 30 per cent.
(citation omitted)
11 L v R(CA719/2017) v R, above n 8, at [48].
12 At [49].
[27] In your case I consider that both aspects from the quote from the Court of Appeal decision apply. I consider your mental health issues will mean that a sentence will weigh more heavily with you, and (rejecting the Crown’s submission) the sentencing response ought to allow for the opportunity for therapeutic intervention to treat your combination of disorders.
[28] I do not overlook, as I mentioned in my sentence indication, the purposes and principles of sentencing that require the Court to take into account the gravity of your offending, the seriousness of the offences and the information provided to the Court concerning the effect of your offending on your son.13 I took those purposes and principles into account when setting the starting point of six years, which is now six years and three months taking into account the uplift.
[29] However, at this point in the sentencing process other purposes and principles also come into focus. I am required to consider any particular circumstances of yours that would mean a sentence or other means of dealing with you would be disproportionately severe. Also, assisting in your rehabilitation and reintegration,14 is a relevant sentencing purpose which I am able to consider, together with the principle of taking into the account the need to impose the least restrictive outcome that is appropriate in the circumstances.15
[30] The various documents and reports provided to the Court discuss the history of violence (including sexual abuse), neglect and dysfunction you experienced in your upbringing. In her report, Dr Webster refers to your background and the various psychiatric diagnoses as follows:
In Dr Duggal’s report he makes the following psychiatric diagnoses in [Ms H]; major depressive disorder, alcohol abuse disorder, gambling disorder, traits of borderline and anti-social personality disorders, and Factitious disorder. These diagnoses are consistent with the diagnoses made by clinicians in previous mental health services providing psychiatric care to [Ms H].
The reports of Dr Duggal and Lynda Soper document [Ms H’s] history of childhood separation from a parent, childhood neglect and abuse,
13 At [18].
14 Sentencing Act 2002, s 7.
15 Section 8. See also R v H above n 3, at [19].
disordered attachment relationship with her parents, medically unexplained physical symptoms including fabricated symptoms, mood and personality disorder, self-harm, lying …
[31] That evidence from Dr Webster is consistent with what you say in your letter to the Court. Your mother left your life when you were five years’ old to be with another man. Before she left, he had sexually abused you. You were then put in the care of your father who, at the time, was neglectful and verbally and emotionally abusive. (I add that that relationship has now been repaired and you have a very good relationship with him. He has apologised for his actions and he is there to support you as an adult). You say that your childhood was one of unpredictability where you tried not to be seen and heard as much as possible.
[32] You say your experience as a mother was always one of high anxiety and you suffered post-natal depression. Your relationships with the two fathers of your four children were dysfunctional and abusive, you say, on both sides.
[33] On 12 December 2016, 17 June 2017 and 30 March 2019, you either threatened to or overdosed on medication. While the evidence from Dr Duggal was that you appeared to be well treated, you denied any suicidal thoughts and had made no suicide attempts during your time on remand in custody and appeared focused on your children, your mental health at the time of your offending was clearly low.
[34] You say the time you spent in prison was awful. You are afraid of having to go back there. Your stepmother says that she fears that your mental health and wellbeing will deteriorate while you are in prison. She says that while you were on remand “we had many calls from her, being inconsolable at times.” She says: “I can only see a further jail term being to her further detriment to her mental health”. She is of the view that you require your family for support at this time in order to move forward. She says family would continue helping and supporting you within the limits of a home detention sentence. Your family lives in Christchurch, which would mean if you were sentenced to imprisonment in Auckland, you would be separated from them.
[35] Your father notes that your oldest child, your 13 year old daughter, who lives in Christchurch with her father, has been having regular visits with you at his home where you are living. He says this has proven very comforting and an obvious pleasure for both you and your daughter. He also says, importantly, your mental health has undoubtedly improved in your current situation.
[36] It is abundantly apparent you have a complex psychiatric history. While I acknowledge Dr Duggal’s reference to your depression being “well treated” at the time he first saw you when you were on remand in prison, that is only one aspect of your mental health matrix. I accept Ms Kincade’s submission when she says it is too simplistic to conclude that because you have received some treatment, that remedies all of your psychiatric background to the extent that a sentence of imprisonment would not affect you. I accept that you would be significantly affected by a sentence of imprisonment because of your psychiatric background, notwithstanding that aspects of it may be able to be treated in prison.
[37] I next turn to the question of your prospects of rehabilitation. For the reasons I will give, I do not accept the Crown’s submission that there should be no discount on this basis. Your letter sets out in detail the steps you have taken and that you have endeavoured to take in order to try and rehabilitate yourself. You say that when you were granted EM bail in February 2020, after almost six months in prison locked in a cell 22 to 23 hours a day, you made the decision that you would spend the rest of your life doing the very best to do right and your goal since then has been to never create another victim through your choices and actions.
[38] These are not just empty words, because you go on to tell the Court about the steps you have taken to try and implement this goal. You say you began this journey 10 days after you were released by going to your general practitioner and asking to be referred to Hillmorton Hospital for mental health treatment. That referral was on 25 February 2020. You say you wanted to understand how you got to the place you were in so you can do everything in your power to gain the tools and skills you need never to end up in that place again. You say that sadly Hillmorton wrote back in a letter of 5 March 2020 saying that because you were not an immediate danger to
yourself or others you did not meet the criteria for either inpatient or outpatient treatment at that time.
[39] On 21 April 2020 your general practitioner referred you to a private psychiatric provider. You managed to have two sessions with a person you refer to as a junior counsellor (that person was the only person the particular organisation had available at the time) before the COVID-19 lockdown intervened.
[40] After lockdown you approached your general practitioner again about getting help and there was another referral to Hillmorton, which again was unsuccessful. Your general practitioner has proposed putting in a sensitive claim form through ACC having regard to your past sexual abuse. If successful, it seems that assistance may be given to you in relation to all aspects of your mental health. You say your general practitioner advised you to engage with this process once these proceedings have concluded. You say that the fact that you have had no significant help to date is nothing to do with your not wanting help or believing that you do not need help. You acknowledge you desperately need it.
[41] In the meantime, you have focused on your future from a career perspective and you provide evidence of the courses you have successfully undertaken.
[42] The writer of the PAC report also states that you want psychological help to mitigate your risk, so you do not offend again in the way you did against your son. She states that you did not try to minimise your offending against your son and the impact of that offending on your other children. While Dr Duggal’s report notes you have had “intermittent contact” with mental health services since 2017,16 I accept you are now taking steps to seek mental health treatment. I accept that a discount should be given for your prospects of rehabilitation.
[43] The following factors taken together: your psychiatric background and the resulting impact that a prison sentence will have on you; the steps you are taking to seek mental health treatment and your prospects of rehabilitation; and the support you
16 Dr Rishi Duggal’s report of 13 February 2020 at 4.
have from your family in relation to your rehabilitation, warrant a discount of 30 per cent.17
Remorse
[44] Remorse is not necessarily simply shown by pleading guilty.18 Where genuine remorse is shown, sentencing credit should properly be given separately from the credit for a guilty plea.19 The writer of the PAC report says that you appear to show genuine remorse when discussing your offending. The writer says, “she hates herself, hates what she did and hates what she has lost”. Ms Kincade submits a five per cent discount is appropriate for your remorse.
[45] I accept that you are genuinely remorseful for your offending. This remorse is demonstrated in the PAC report and also in the letter you wrote to the Court. You say:
There is no punishment greater for me personally than living without my children, not knowing how they are, not being there to see them grow and change and knowing it is all due to my decision.
[46] The letters from your family members also provide evidence of your remorse and the responsibility you take for your offending. Your sister says in her letter to the court:
[My sister] and I share a wall. Often when she doesn’t know anyone can hear her, she sobs quietly for hours on end. Praying for forgiveness and the happiness and health of her children and those around her. To me this confirms her remorse. It is the actions people make when no one is looking that truly show their intentions.
[47]I allow a five per cent discount for your genuine remorse.
Restrictive bail
[48] Ms Kincade submits that the Court should give a discount due to your time spent on restrictive bail pursuant to s 9(3A) of the Act. She submits that there is no arithmetical formula to applying the discount for restrictive bail. She says that apart
17 For discounts in other cases see E(CA689/10) v R, above n 10; R v Wright CA478/00, 28 March 2001 at [29]–[30] and [32]; and L(CA719/2017) v R, above n 8.
18 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
19 At [64].
from one minor breach, you have not had any incidents while on EM bail since 14 February 2020. As you have spent 17 months and 30 days on EM bail, she submits you should receive a 10 per cent discount.
[49] The level of discount a Court may award for time spent on EM Bail is discretionary.20 You have spent approximately 17 months and 30 days on bail. The conditions were progressively relaxed so that you could work for your father and pursue business studies. You breached your EM bail conditions once when you contacted a witness. I accept that was a minor breach.
[50] In all those circumstances, the Crown submits that at most a five per cent discount should be given for time spent on EM bail.
[51] I accept Ms Kincade’s submission that you are entitled to a discount of 10 per cent for time spent on EM Bail. A discount of that amount is still modest over a period of 17 months and 30 days.
Final sentence
[52] I set a global starting point of six years’ imprisonment in my sentence indication. I have made an uplift of five per cent for the likely long-term psychological effects your offending will have on your son. The overall starting point is therefore six years and three months’ imprisonment. I have allowed discounts of 25 per cent for your guilty plea, 30 per cent for your personal factors and five per cent for remorse. I have also allowed a 10 per cent discount for your time spent on EM Bail. This gives a total of 70 per cent by way of discounts.
[53] Applying this overall discount to the starting point produces a sentence of 22 months’ imprisonment.
[54] With this outcome, it is unnecessary to consider Ms Kincade’s submission that despite s 82 of the Sentencing Act 2002, which provides that pre-sentence detention must not be taken into account in determining the length of sentence, this is a case
20 Chea v R [2016] NZCA 207 at [110].
where the Court should take into account the time spent on remand. She submits this would be permitted in order to reach a sentence of home detention if that was the sentence the Court considered appropriate. However, I have reached the position where a sentence of home detention is able to be considered without the need to consider Ms Kincade’s submissions on s 82 of the Sentencing Act.
Home detention
[55] Mr Harborow submits that even assuming the jurisdiction exists for the Court to impose an electronically-monitored sentence, home detention is not appropriate given the seriousness of your offending and what the Crown submits is your lack of commitment to changing your offending behaviour. I have already rejected the Crown’s submission on that latter point.
[56] As regards home detention, it is important not to overlook that the Court of Appeal has recognised that denunciation and deterrence can be signalled by a sentence of home detention and the importance of adequately signalling that denunciation and deterrence21 does not lead to substituting home detention for what would otherwise be a prison sentence only in exceptional circumstances.
[57] I have regard to the important injunction in the Sentencing Act that the Court should impose the least restrictive sentence that is appropriate in the circumstances.22 In doing so, I have regard to the acknowledgment from many authorities in this Court that home detention is not an easy option.23 Both imprisonment and home detention serve the principles of denunciation and deterrence by imposing severe restrictions on an offender’s freedom of movement. Home detention is itself a serious punishment.
It is a real alternative to imprisonment.24
[58] For all the reasons I have mentioned, home detention is a proper alternative in your case.
21 R v Iosefa [2008] NZCA 453 at [42]–[43].
22 Crimes Act 1961, s 8(g).
23 R v Piahana [2017] NZHC 2763 at [49]; Paraha v Police [2017] NZHC 1887 at [42]; and
O’Driscoll v Police [2015] NZHC 346 at [34].
24 R v Iosefa, above n 21, at [41].
Suitability of an electronic sentence
[59] The address at [address given] has been deemed a suitable address for an electronically monitored sentence. This is the same address to which you have been bailed on EM bail. In terms of compliance, the PAC report writer is of the view that you have the ability to comply with a sentence of home detention given your compliance with the conditions of EM bail, with a previous supervision sentence and no prior breaches on any community-based sentences.
End sentence
[60] Having reached an end sentence of 22 months’ imprisonment, for the reasons I have given, I consider a sentence of home detention is appropriate. You will be sentenced to 11 months’ home detention at the address referred to, on the standard terms and conditions. In addition, the following special conditions will apply:
(a)You are not to possess consume or use any alcohol or drugs not prescribed to you;
(b)You are not to associate with or contact any victims of your offending without the prior written approval of both a Probation Officer and Oranga Tamariki;
(c)You are to attend a Psychological Assessment as directed by a Probation Officer;
(d)You are to attend any treatment or counselling as recommended by any psychological assessment as directed by a Probation Officer;
(e)You are not to be in the company of any persons under the age of 16 without an additional adult being present in the room at all times and supervising the contact; and
(f)You are to take all prescribed medication in the presence of your father or a family member nominated by him.
Protection order
[61] The Crown seeks a protection order against you to protect your son. There are proceedings in the Family Court involving him. Section 123B of the Sentencing Act provides that the courts should not decline to make a protection order on the chance that the Family Court will do so. Ms Kincade does not oppose the making of a protection order. She notes there is currently a custody order in place in favour of Oranga Tamariki pursuant to s 101 of the Oranga Tamariki Act 1989.
[62] In considering whether to make a protection order against you, I need to make an evaluation based on all the evidence.25 One of the factors I consider is the degree and frequency of the violence against your son. The greater and more persistent the degree of violence, the more likely it will be necessary to make an order.26
[63] The authorities support the Crown’s submission that a protection order may be made even if family violence proceedings, including an application for a protection order, have commenced in the Family Court but have not yet been determined.27
[64] I am satisfied the Court should make a protection order. You engaged in serious, life-threatening offending against your son for a period of 10 days. While this offending was not violent in the way that the word is commonly used, it was violent because you directly threatened your son’s life when you administered toxic concoctions to him.
[65] I make a protection order against you, Ms H, in favour of your son pursuant to s 123B(2) of the Sentencing Act.
Name suppression
[66] On 22 June 2020 you were granted name suppression until the disposition of your trial. The order was made on the basis that there would be extreme hardship to your children if your name were published. Ms Kincade has filed submissions and
25 Simon France (ed) Adams on Criminal Law – Sentencing (online looseleaf ed, Brookers) at [SA123B.02], citing SN v MN [2017] NZCA 289, [2017] 3 NZLR 448 at [20] and [24(f)].
26 At [SA123B.02], citing SN v MN, above n 25, at [22].
27 See Gebbie v Police [2019] NZCA 540 at [19]; and Gebbie v R [2020] NZSC 9.
affidavits in support of an application for permanent name suppression. A formal application will need to be filed.
[67] I make an order extending the interim order of 22 June 2020 until the application for permanent name suppression has been determined.
Result/Sentence
[68] Ms H, would you please stand. I sentence you to 11 months’ home detention on the standard terms and conditions and on the special conditions already mentioned.
[69]Please stand down.
Gordon J
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 643
THE QUEEN v
H
Hearing: 26 March 2021 Appearances:
M Harborow and H MacDonald for the Crown J Kincade QC and A Shendi for the Defendant
Judgment:
26 March 2021
SENTENCE INDICATION OF GORDON J
Solicitors: Crown Solicitor, Auckland Counsel: J Kincade QC, Auckland
R v H [2021] NZHC 643 [26 March 2021]
Introduction
[1] Ms H, you appear for a sentence indication on two representative charges of ill treatment of a child 1 and one charge of theft.2
[2] The representative charges relate to a number of incidents that occurred during the period between 16 August 2019 and 26 August 2019. The first charge of ill treatment is in relation to two incidents at Dunedin Hospital (the Dunedin offending) and the second charge relates to five incidents at Starship National Children’s Hospital in Auckland (the Auckland offending). The theft charge is representative of six incidents covering six occasions of theft from the Auckland City Hospital pharmacy.
Factual background
[3] You are the biological mother of S. He was born at 26 weeks (14 weeks premature). He was 15 months’ old (one year corrected for prematurity) at the time of the offending.
[4] Due to S’s prematurity, he has recurring bronchitis which, when severe, requires him to be hospitalised for care.
[5] On 12 August 2019, you took S to a Medical Centre. You told the general practitioner that S had been coughing and vomiting. The doctor recorded S as suffering from the first day of bronchiolitis and told you she would follow up the next day. She said to take S to the emergency department if his condition worsened.
[6] On 13 August 2019, you returned to the Medical Centre and reported S had continued to wheeze and cough up yellow phlegm. You also said he had vomited in the night. You showed the doctor a photograph of S’s nappy, which showed a stool and a large amount of blood. The doctor contacted the Paediatric Registrar at Dunedin Hospital (who had had extensive past involvement with S). After consulting with paediatricians at the hospital, the Paediatric Registrar asked you to bring S to Dunedin Hospital. He arrived there at around 9 pm–10 pm. When he arrived, the Paediatric
1 Crimes Act 1961, s 195(1). The maximum penalty for this charge is 10 years’ imprisonment.
2 Crimes Act, ss 219(1)(a) and 223(d). The maximum penalty is three months’ imprisonment.
Registrar assessed S and concluded he was no longer actively bleeding and was haemodynamically stable. S was transferred from the Emergency Department to the Children’s Ward.
Dunedin offending
[7] Charge one represents two incidents that occurred on 16 August 2019 at Dunedin Hospital. On each occasion, you administered to S (once by unknown means and once by mixing the drugs with his milk formula) a toxic concoction containing tetrahydrozoline (commonly found in non-prescription eye drops) and sertraline (anti- depressant medication prescribed to you). In each instance, your actions caused S to suffer an episode of altered consciousness. S appeared sedated, unresponsive and floppy. He had a life-threateningly low heart rate and high blood pressure.
[8] The first incident occurred at around 2.45 pm on 16 August 2019. During S’s episode of altered consciousness, a sample of his blood was taken for toxicology testing. You were present as that sample testing happened.
[9] After the second incident at 9.30 pm that same day, S was anaesthetised, and the doctors inserted a breathing tube so he could undergo a CT scan and a lumbar puncture. During the induction of the anaesthetic, S vomited milk and inhaled it (aspirating milk from his stomach to his lungs). S needed further drugs to keep him in an induced coma and to paralyse his breathing to enable him to be fully artificially ventilated.
[10] S’s condition continued to deteriorate. His temperature dropped and he became hypothermic. Staff became concerned that he had developed aspiration pneumonia from inhaling milk during intubation. His heart rate increased, and his blood pressure became abnormally low. Due to the sustained seriousness of S’s condition, he was airlifted to Starship National Children’s Hospital in Auckland (Starship) and admitted to the Paediatric Intensive Care Unit.
Auckland offending
[11] The second charge represents five incidents that occurred at Starship between 18 August 2019 and 26 August 2019. On each occasion, you administered (four times by unknown means and once via his feeding tube) a toxic concoction of chemicals to S.
[12] Toxicology tests were carried out on samples taken during only two of these incidents (incidents four and five). In regard to incident four, you administered to S by unknown means a concoction containing naphazoline and pheniramine, both chemicals commonly found in eye drops. In relation to incident four, you laced S’s feeding tube with a concoction of naphazoline, pheniramine and antazoline, all of which are active ingredients in eye drops and nasal sprays.
[13] The composition of the toxic concoctions you administered to S on the other three occasions is unknown because toxicology testing was not carried out on samples taken from S on those occasions. However, each occasion caused S to have an episode of low heart rate and high blood pressure.
[14] Since you were arrested on 27 August 2019 and S was removed from your care, he has not suffered any further medical incidents.
Thefts
[15] Between 20 August 2019 and 26 August 2019, while S was in Starship, you stole non-prescription eyedrops from the Hospital Pharmacy on six occasions by hiding them on your body or in your bag. It is alleged it was these eyedrops you forced S to ingest.
Approach to sentence indication
[16] A sentence indication is not the same as a sentencing. A sentence indication indicates the type, range and/or quantum of the sentence the Court would likely impose
if you were to plead guilty to the charges against you.3 R v Moses provides the two- step approach to sentencing, which involves:4
(a)identifying the adjusted starting point, incorporating aggravating and mitigating features of the offending; and
(b)calculating any aggravating and mitigating factors personal to you, together with any guilty plea discount, as a percentage of the starting point.
[17] In a sentence indication, the Court may have no or limited information on personal aggravating and mitigating factors. In this case, I have some information in relation to your personal mitigating factors. I will refer to those in due course.
[18] In determining an appropriate sentence indication, there are a number of purposes and principles which Parliament has said a Court must take into account.5 I regard the requirements: to take into account the gravity of your offending; the seriousness of the offences; the information provided to the Court concerning the effect of the offending on S; and any particular circumstances of yours that would mean a sentence or other means of dealing with you would be disproportionately severe as particularly relevant to this case.
[19] However, assisting in your rehabilitation and reintegration6 is also a relevant purpose which I will consider, together with the principle of taking account the need to impose the least restrictive outcome that is appropriate in the circumstances.7
3 Criminal Procedure Act 2011, s 60.
4 Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381 at [46] – [47].
5 Sentencing Act 2002, s 8.
6 Sentencing Act, s 7.
7 Sentencing Act, s 8.
Starting point
Approach to sentencing
[20] There is no guideline judgment for ill treatment of a child. Therefore, I will refer to ss 9 and 9A of the Sentencing Act 2002 factors and the case law provided to me by counsel.
[21] Section 9A of the Sentencing Act provides a number of mandatory factors for the Court to take into account.8
(a)the defencelessness of the victim:
(b)in relation to any harm resulting from the offence, any serious or long- term physical or psychological effect on the victim:
(c)the magnitude of the breach of any relationship of trust between the victim and the offender:
(d)threats by the offender to prevent the victim reporting the offending:
(e)deliberate concealment of the offending from authorities.
[22] The Crown has drawn my attention to the legislative history of s 9A of the Sentencing Act. The most recent amendment to s 9A is to increase the maximum penalty from 5 years to 10 years’ imprisonment.9 In M v R the Court of Appeal noted the Law Commission’s Report recognised the “very grave nature” of s 195(1) offending.10 The Court of Appeal stated, “we agree with the Judge that Parliament has signalled in the clearest possible manner that the courts are expected to respond to offending of this type by imposing penalties that reflect the seriousness of the offending.”11
[23]Both counsel refer to that case, and to L v R,12 a Court of Appeal decision and
R v L,13 the sentencing decision in the High Court for that case.
8 Sentencing Act 2002, s 9A.
9 Crimes Amendment Act (No 3) 2011 (2011 No 79), s 7.
10 M v R [2016] NZCA 53 at [29].
11 At [32].
12 L(CA719/2017) v R [2019] NZCA 676.
13 L v R [2017] NZHC 2934.
[24] The Crown submits the two charges under s 195(1) of the Sentencing Act should be considered separately. It characterises the Auckland offending as the lead charge. The Crown submits a starting point of five to six years’ imprisonment for the lead charge is appropriate. It submits an uplift of two years’ imprisonment for the Dunedin offending is also warranted.
[25] Ms Kincade QC, on your behalf, submits the two charges under s 195(1) are part and parcel of the same offending. A global starting point of five years is appropriate. With appropriate discounts, Ms Kincade says an end sentence of home detention is available.
Submissions
Aggravating factors
[26] Both counsel have discussed ss 9 and 9A factors in their submissions. I will refer to the relevant factors under those two provisions of the Sentencing Act and counsels’ respective submissions for each factor. But I first note that as far as culpability overall is concerned, Ms Kincade emphasises what she says is your diagnosis of factitious disorder imposed on another (FDIA). She submits that mental illness, such as FDIA, can be used in sentencing both retrospectively, in assessing culpability, and prospectively, in assessing the future subjective impact of the starting point on you.14 The Crown suggests that no psychiatric disorder has yet been formally established or diagnosed. I will come back to this issue.
[27] The Crown submits that your offending engages all of the s 9A mandatory factors.
Defencelessness of the victim
[28] As to defencelessness, S was 15 months’ old when you offended against him. He was unable to communicate the need for medical assistance and could not protect himself from your offending. The Crown submits S was further vulnerable because he was born prematurely and accordingly there were issues with his health and
14 L v R, above n 12, at [48].
resilience. Ms Kincade accepts that defencelessness is a relevant factor in this case. That is a proper concession. I accept the Crown’s submission.
Long-term physical or psychological effect
[29] The Crown first refers to the immediate effects. S experienced symptoms consistent with withdrawal syndrome such as jitteriness, wobbliness, poor coordination, easy startling and difficulty sleeping five days after the incidents. An MRI scan on 19 August 2019 revealed three areas of damage to different parts of his brain. On 16 January 2020, another MRI scan showed S had a loss of brain tissue at all three locations in his brain.
[30] Ms Kincade has provided a letter from Dr Peter McIllroy dated 7 December 2020. He assessed S at two years, six months’ old. The letter states that according to a Bayley’s assessment, S was eating well, maintaining good health, exhibiting excellent social skills and did not show any concerning signs of ill health. Dr McIllroy recorded:
I cannot detect any adverse effect either from his prematurity or from his poisoning episodes. He is thriving in the care of his dad.
[31] The Crown has submitted a memorandum dated 24 March 2021 in response to the letter from Dr McIllroy. This memorandum contains Dr Bronwyn Rosie’s opinion on Dr McIllroy’s assessment of S. Dr Rosie is a specialist paediatrician at Starship. She says that while S’s results as reported by Dr McIllroy are encouraging, it is important to understand that a Bayley’s assessment does not encompass all aspects of development. Specifically, a Bayley’s assessment does not address executive function (which includes higher level functions such as planning, sequencing and impulse control).
[32] In this case, on S’s most recent MRI scan completed, as I have said, on 16 January 2020, there was residual brain damage present in his right parietal lobe and corpus callosum (multiple nerve fibres connecting the left and right hemisphere of the brain).
[33] Dr Rosie states that structural brain damage is sometimes associated with executive functional difficulties. She said, “it is too early to definitively conclude S’s poisoning has not affected his long-term development.” Dr Rosie says that usually executive function difficulties present themselves when children have started school.
[34] Further on this issue of any long-term impacts, the Crown also submits it is inevitable that there will be a significant and ongoing psychological impact when S discovers the offending you committed against him. Ms Kincade submits that the Court should not speculate on the long-term effects on S because the Court may then adopt an aggravating factor which may not come to fruition.
[35] Having regard to Dr Rosie’s evidence, it cannot be said definitively at this stage that there are no adverse effects from your conduct. But it would be speculative to say that there will be, or even may be, long-term adverse effects.
Breach of trust
[36] The Crown submits the breach of trust is grave. You were S’s primary caregiver. You were meant to look after S and ensure he received medical attention. The Crown submits you did the opposite. Ms Kincade accepts a breach of trust occurred but highlights that this behaviour was caused by your FDIA. I will return to this issue.
Concealment of offending
[37] The Crown submits you also deliberately concealed information from medical professionals. You engaged in an actively deceptive course of conduct over an extended period. In doing so you breached the trust of the medical professionals. Ms Kincade accepts that you did so, but again says this was part and parcel of your FDIA. You presented another individual in this case, S, to others as ill, impaired or injured. I will return to this factor also.
Sustained offending
[38] The Crown submits your offending was sustained because it was over 10 days. It was frequent and persistent. On a number of occasions, you fed S more toxic
concoctions after he had just recovered from the previous incident. Ms Kincade responds, submitting that the offending spanned a much shorter period than in the cases I will refer to shortly.
Premeditation
[39] The Crown submits a high degree of premeditation was involved in this case. You researched the substances you put into S’s formula and feeding tube and the consequences of ingesting them. You conducted over 200 website visits and searches. Your research began prior to your offending at least as early as 15 August 2019, and continued throughout. Again, Ms Kincade submits this factor is attributable to FDIA.
Particular cruelty
[40] The Crown also submits that the offending was particularly cruel because of S’s prematurity. You were present throughout S’s reactions to the toxins you forced him to ingest. You were aware, from your online research of the risks to S, including the risk of death. You also witnessed the distressed responses of medical staff. Then after 19 August 2019, when you were told S had suffered damage to his brain, you continued to offend against him until you were caught.
[41] Ms Kincade submits that it is important that the Court does not double-count aggravating factors such as cruelty in regard to the nature of the offending.
[42] In considering your culpability I have read the Victim Impact Statement from S’s father who now has the care of S along with the two other children you had together, S’s older siblings. I have also read the Victim Impact Statement from S’s paternal grandmother. There was the immediate impact of being told S might die. And then there was the further impact when it became apparent that you were responsible. Not only was there a breach of trust in relation to S but there was also a breach of trust in relation to the family members. They both speak of the significant impact – psychological, social, physical and financial – that your offending has had on them and the consequential immense disruption to their lives and the lives of your children.
[43] In order to assess your culpability and to consider how the Court should treat your breach of trust, concealment of your offending, your premeditation and cruelty, all of which I accept were present, the Court would normally take into account at this point the effects of any mental health disorder which might reduce culpability. As the Court of Appeal said in L v R, “it is the presence of those aspects which must be provided for under ss 7 – 9 of the Sentencing Act 2002 … and in accordance with the Taueki methodology”.15
[44] The difficulty the Court is faced with in this sentence indication is that the report of psychiatrist, Dr Duggal, of 13 February 2020 is limited. It was prepared for a different purpose, that is for an application for EM bail. The part of the report where Dr Duggal considers the diagnosis of FDIA only runs to just over a page. He does say “if Ms H was found guilty of the alleged offending, the information available to me would support a diagnosis of factitious disorder imposed on another”. However, there is insufficient detail to enable the Court to address any impacts of the disorder on your culpability. The consequence of that is that I will need to address any such impacts when I consider matters personal to you. It does not seem that that approach is problematic. As the Court of Appeal said in L v R:16
[51] In this case, the sentencing Judge chose to approach her calculation by treating the appellant’s FDIA as a discrete factor once an overall starting point had been settled on. While this is not necessarily problematic, it is important not to under-account for all relevant aspects of that factor when choosing a single discount figure.
[45] But even that approach is difficult on a sentence indication in the absence of a full report from Dr Duggal, which the Court is told will be provided for sentencing if this indication is accepted. But I will come to that shortly.
Authorities
[46] L v R concerned six charges of ill treating a child under s 195(1). The offending occurred against two children, A and B, between 2012–2015. In regard to child A, the defendant L, lied to medical professionals on 80 occasions about A’s health, claiming that A had seizures, rashes and fevers. A was prescribed medication on each occasion,
15 L v R, above n 12, at [50].
16 At [51].
which was dangerous to her health. On four occasions L gave A more than the prescribed dose of her medication.
[47] L’s offending against B involved suffocating him on two occasions. L further offended against B as she caused him or at least enabled him to swallow a button battery. The Court of Appeal did not disturb the starting point of five years for the offending against A or the starting point of five years and three months for the offending against B.17 The Court of Appeal discussed at length the appellant’s diagnosis of FDIA and allowed a 50 per cent discount because of the causal relationship between the disorder and the offending.
[48] M v R involved two charges under s 195(1) for neglect of twins aged 10 weeks’ old over a two-week period. The Court could not determine who had caused serious physical injuries to the twins and both parents were charged under s 195(1) with failure to provide necessaries and protect the children from harm. The High Court adopted a starting point of six years’ imprisonment for the offending, which was upheld by the Court of Appeal.18
Starting point analysis
[49] I agree with Ms Kincade’s submission that the two charges under s 195(1) are part and parcel of the same offending. The offending should be considered together for the purposes of determining a starting point. In effect it was the same sort of behaviour repeated over 10 days. In my view, the two charges simply reflect the fact that the behaviour occurred in two different locations, Dunedin Hospital and Auckland Hospital.
[50] I also agree with both counsel that L v R provides assistance in setting the starting point. Whereas M v R involved the appellants using physical violence against their child. That offending is of a different nature to your offending. Therefore, M v R is not relevant to setting the starting point.
17 L v R, above n 12.
18 M v R, above n 10, at [34].
[51] In particular, the offending against child A in L v R is analogous to your s 195(1) offending. L’s offending contained similar aggravating factors to your offending. Both sets of offending involved a grave breach of trust against a vulnerable child. You both lied to medical professionals about your respective child’s health, resulting in them being subject to invasive procedures. You both stopped offending once you were caught.
[52] But there are differences between that other case and yours. The offending in which L engaged, in relation to A, lasted over a significantly longer period of time (three years as opposed to your 10-day period of offending). On the other hand, L offended against A when she was 2–5 years’ old, whereas S was 15 months at the time of your offending. You also have the added theft charge to consider.
[53] But there are some further key differences which I consider make your offending worse than L’s offending against A. Your conduct towards S was life threatening. That is abundantly clear on the facts. Whereas L’s conduct towards A was not life threatening. Although your offending was over a much shorter period, it had an intensity which was absent in the other case. S had barely recovered after your previous administration of substances into his system before you again administered more. And finally, there was your level of research and the sheer number of searches on the internet on the drugs you administered and their effects.
[54] In conclusion on the starting point, having regard to the authorities, in particular L v R, and ss 9 and 9A of the Sentencing Act factors, I consider an appropriate global starting point for your offending in the two s 195(1) charges is five years and nine months’ imprisonment. I add a further three months uplift for the theft charge. The overall starting point is therefore six years’ imprisonment.
Personal circumstances
[55] I now turn to consider adjustments to the starting point for your personal circumstances. I note that, at this stage, I do not have the benefit of a Provision of Advice to the Court (PAC) Report, which is a report prepared for sentencing.
[56] Matters arising from that report and any further matters submitted on your behalf or on behalf of the Crown, will need to be addressed at sentencing. They may involve the starting point going up or down.
[57] As regards mitigating factors, Ms Kincade submits you should receive discounts for guilty pleas and your mental health. She also submits you are entitled to discounts for remorse, restorative justice, family support and time spent on EM bail, all of which she will address at sentencing.
Guilty pleas
[58] A discount of up to 25 per cent is available for a guilty plea.19 The Crown accepts that you are entitled to a 20 to 25 per cent discount if you plead guilty. Ms Kincade submits you should receive a full 25 per cent discount. If guilty pleas are entered after this indication, she says they would be entered at the first reasonable opportunity.
[59] You were charged on 26 September 2019. However, as a result of discussions with the Crown, the summary of facts has been amended, charges of poisoning, which carry a maximum penalty of 14 years’ imprisonment are not pursued and the number of charges has been reduced. They are now framed as representative charges. In those circumstances, I consider if guilty pleas were to be entered, you would be entitled to a 25 per cent discount.
Mental illness
[60] Ms Kincade says that a full report from Dr Duggal will be available for sentencing. The diagnosis of FDIA will be confirmed. Ms Kincade submits that your mental illness and good character warrant a 40 per cent discount.
[61] As I have already mentioned, the Crown says you have not been formally diagnosed with FDIA. The Crown also submits that you should not be entitled to a discount for good character because of your prior shop-lifting convictions.
19 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74] – [75].
[62] In the absence of a full psychiatric report, the Court is simply not in a position to definitively state what percentage discount is appropriate.
[63] In L v R, the Court considered a 50 per cent discount was appropriate having regard to the causal relationship with the offending. The Court also referred to the case of E v R, which discussed cases which showed discounts had ranged between 12 and 30 per cent.20
[64] I consider that a range between 30 to 40 per cent discount for a diagnosis of FDIA will likely be appropriate, if Dr Duggal’s forthcoming report contains a diagnosis of FDIA, but more importantly if it provides the necessary foundation establishing a causal link between the disorder and your offending. I again emphasise that the Court is giving an indication on incomplete information. The level of discount will need to be reviewed in the light of Dr Duggal’s forthcoming report.
Home detention
[65] Ms H, a 65 per cent discount (adopting the highest figure in my range for a mental health discount plus the 25 per cent discount for a guilty plea) on a sentence of six year’s imprisonment would leave an end sentence in the vicinity of 25 months’ imprisonment. With further discounts that may mean an electronically monitored sentence may be available. But I make it clear at this stage, the Court is not in a position to address the suitability or otherwise of home detention.
[66] In the absence of the PAC Report, the Court is not in a position to decide whether your particular circumstances would mean that a sentence of home detention is appropriate (in the event that a final sentence meant you were eligible for home detention).
Conclusion
[67] My indication at this stage, Ms H, is that from a starting point of six years’ imprisonment I would allow discounts of 25 per cent for guilty pleas and would likely allow a 30 to 40 per cent discount for mental health factors personal to you (but I
20 L v R, above n 12, at [49].
repeat that the level of discount is subject to the contents of Dr Duggal’s updated report for sentencing).
[68] Ms Kincade indicates to the Court that if the Court were to stand this matter down for say 20 minutes, Ms H would be in a position, at that point, to advise whether or not the sentence indication is accepted. So I will adjourn until counsel advise me that they are ready for the Court to be reconvened.
Gordon J
[69] Addendum: Ms H accepted the sentence indication. I make an order formally vacating the trial set down for 28 June 2021.
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