R v Hemana

[2012] NZHC 376

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-088-2218 [2012] NZHC 376

THE QUEEN

v

JAMES ALLAN FREDERICK HEMANA

Hearing:         8 March 2012

Appearances: P K Hamlin and J Shaw for Crown

S J Bonnar and K P Cato for Prisoner

Judgment:      8 March 2012

SENTENCING NOTES OF PETERS J

Solicitors:

Meredith Connell, Crown Solicitors, Auckland [email protected] / [email protected]

Counsel:

S J Bonnar, Auckland [email protected]

K P Cato, Auckland [email protected]

R V HEMANA HC AK CRI 2010-088-2218 [8 March 2012]

Introduction

[1]      Mr Hemana, I am to sentence you on two charges.  The first is the murder of Cezar Taylor in 2010 and the second is for failing to provide Cezar with the necessaries of life.   A jury found you guilty on the murder charge at a trial in November and December 2011.  You pleaded guilty to the failing to provide charge at the beginning of the trial.   I was the Judge at the trial and I have a very good recollection of the evidence that was given.

Background

[2]      The important facts for the purposes of sentencing are these.  Cezar was born on 21 January 2010.  He was the son of Adam Clarke and Victoria Taylor and at that time, they had one other child, Wikitoria.

[3]      Victoria  and  Adam  separated  in  about  May  2010.     Victoria  began  a relationship with you shortly afterwards.  Not long after that, Victoria moved into a house in Mangere which was intended for Victoria and Samantha, her sister, and for either or both of Wiki and Cezar if they came to live with Victoria.  You moved into the house shortly afterwards, as did Russell, Victoria’s older brother.

[4]      At the end of May 2010 Victoria brought Wiki to live with her, and that meant to live with you.  Victoria’s evidence was that you were fine with Wiki to start with but after a week or so you started shouting and growling at Wiki.  There was also an incident involving you and Wiki that appears to have left Wiki with a bruise under her right eye.  But I am far from clear on the details of that incident and who was responsible for what so I intend to put all of that one side.

[5]      A few weeks later Victoria returned Wiki to Adam and took Cezar in Wiki’s place.  This was on 28 June 2010.  Cezar, a healthy little baby boy, five months’ old, was dead a month after coming into the household.

[6]      Cezar’s death on 28 July resulted from your actions on 13 July.   Victoria

Taylor, Cezar’s mother, gave evidence of two incidents before that.  One was when

Cezar was in his walkie and the other was when you shook him on 6 July.   I am going to mention these matters briefly but they are not of great significance, given what happened on 13 July.

[7]      Victoria’s account of the walkie incident was that, while Cezar was in his walkie, you became annoyed with him and slapped him on the back of his head, sufficiently hard to make Cezar’s head move forward and hit the tray on the front of the toy.  This was on about 3 July.  Your counsel, Mr Bonnar, says that you dispute this incident.  I am satisfied that there was some incident with the walkie involving Cezar, along the lines Victoria described but again I am far from clear on the detail of it.

[8]      The second incident that Victoria described was on about 6 July 2010.  You acknowledged at the trial that you became annoyed by Cezar’s crying, and, at the very least, you picked Cezar up roughly, by the front of his stretch and grow suit, and shoved  him  into Victoria’s  arms.    I am  satisfied  that  is  the very least  of what occurred that day.

[9]      And then early on 13 July 2010 there is the incident that caused Cezar’s

death.  You, Victoria and Cezar were asleep in the lounge.  Cezar woke up at about

6 am  and  started  to  cry.   Victoria went  to  the  kitchen  to  get  a bottle  for him. Annoyed that Cezar had woken you, you picked Cezar up, held him upside down by his thighs or his feet, shook him and then dropped him, from shoulder height, head first, onto the mattress.

[10]     I do not know whether you did this once, twice or three times.   On one reading of part of Victoria Taylor’s evidence, she saw you drop Cezar once and that is what you admit to.  In other parts of her evidence Victoria is clear that she saw you pick Cezar up, shake him and drop him several times, despite the fact that she was trying to get you to stop.

[11]     Whether it was once or more than once, everyone agrees that at the time you dropped Cezar you were standing close to a very large solid wooden cabinet and that, as he fell, Cezar hit his head on the corner of that cabinet.

[12]     As I say, I cannot be sure whether you did this once or whether you did it more than once.  The jury could have found you guilty of murder in either case.  I propose to proceed on the basis it happened once.  But Mr Hemana that does not take us very far.   No one who shakes a baby and then drops him, head first, on to a mattress, from a height, can expect that child to be okay.

[13]     The gist of the medical evidence at the trial was that your actions on 13 July severely damaged Cezar’s brain and caused his death.  The incident a week earlier, on 6 July, may well have been a contributing factor.  As the Doctors described it, Cezar’s brain had moved rapidly backwards and forwards in his skull, hitting his skull in a way that no baby’s ever should, and causing massive brain damage as a result.   Whether that damage was caused by you shaking Cezar, or by his head hitting the cabinet or the mattress or a combination of the three does not matter that much. The rapid movement unleashed a chain of consequences that led to the baby’s death.

[14]     Cezar went rapidly downhill after 13 July.  The healthy little boy described by witnesses and shown in the photos taken at Shirley Brown’s on 28 June could not keep his food down or hold his head up.  He could not follow things with his eyes or smile. You, and quite possibly others, described him as “zombie boy”.

[15]     Despite this, no one took Cezar to a doctor or to the hospital.  You will say, with some justification, that you were not the only one who failed to take this obvious step and that others might have done so but you are the only one who has been charged.   I accept that it would seem that you have been singled out.  There were several other adults around to whom it must have been obvious that Cezar needed medical attention urgently.  One witness, Susan Campbell, who had nothing to do with you but who first laid eyes on Cezar on about 20 July, said it was obvious to her that Cezar needed urgent medical help and that she repeatedly said so to Kathryn Wright, Russell’s girlfriend and your cousin.

[16]     On 23 July 2010 it could no longer be ignored that Cezar was dangerously unwell.  Victoria and Russell took him to the hospital.  It took the medical staff a matter of seconds to work out that Cezar had been the victim of a violent assault and

that Victoria’s explanation, that Cezar’s injuries and obvious bruises had come from him kicking toys in the bath, could not possibly be true.  The baby had bruises on his thighs, and photos taken several days later show at least four obvious bruises on his forehead.

[17]     Within a matter of hours of Cezar being admitted to hospital, Russell and Kathryn drove you from Auckland to Wellsford.  This was to get you away from the immediate threat of the Police coming to the Mangere house.   Russell Taylor and Kathryn  Wright   gave  evidence  that   you  left  Auckland  because  there  were outstanding warrants for your arrest on other, relatively minor matters.  The Crown says that you left Auckland because you knew Cezar was gravely unwell and that that you were responsible.   Mr Hemana, the text messages that you and Kathryn Wright sent one another during the course of that day and over the next couple of days suggests that the reason the Crown gives for you leaving town is the correct one.

[18]     The medical staff did everything they could of course but to no avail.  Cezar was put on life support and died on 28 July 2010.  As I have said, that was a month after coming into the household.

Trial

[19]     Eventually the Police located you and charged you with Cezar’s murder.

[20]     It was never the Crown case that you intended to kill Cezar.  The Crown’s case was that, when you shook and dropped Cezar on 13 July, you knew that there was a real risk he would die or be severely injured as a result of your actions and you went ahead regardless.

[21]     You told the Crown well before trial that you would admit that you caused Cezar’s death, and that  you were guilty of manslaughter as a result.   You also acknowledged, again well before trial, that you would plead guilty to the charge of failing to provide the necessaries.   The sole issue at trial was whether you had

murderous intent, that is whether you knew when you shook and dropped Cezar that there was a real risk that he would die or be severely injured by your actions.

[22]     The trial took more than two weeks.  The jury deliberated for quite some time but ultimately they reached a verdict of guilty of murder, not manslaughter.

Victim impact statements

[23]     Mr Hemana there is no getting away from the fact, and you have never shied away from the fact, that by your actions you killed a perfectly healthy little baby boy. Cezar’s death has had a profound effect on the Taylor and Clarke families.   It has affected Victoria and Adam, all of their brothers and sisters and families and of course Shirley and Doug Brown, Victoria’s grandparents.  I saw all of these people give evidence and I have since read the victim impact statements and of course Mr Clarke has read his this morning.  I do not propose to dwell on these other than to say that Victoria’s and Adam’s statements say precisely what one would expect a parent to say in these circumstances.

[24]     Now  –  some  people hearing the account  that  I have just  given of what occurred on 13 July might think that you were a violent, callous brute.  However, having heard every witness and having watched you closely over the trial, I have to say that was not the impression that I formed of you and there are some matters that I mention in particular.

[25]     First, as your counsel has said, Cezar did not die as a result of sustained brutality with injuries inflicted over weeks or months, with weapons or with deliberate cruelty.  What happened to Cezar was different from some of the horrific, shocking cases that the public and the Courts have to confront, where parents or guardians have inflicted injury after injury after injury, making the child’s life a living and terrifying hell, day in and day out. This case was not like that.

[26]     Secondly, some of the evidence at trial was favourable to you and I set the most store here on the independent witnesses who saw you, first with Wiki and then with Cezar, and who were complimentary. They described you as caring, as having a

good way with children and as doing a lot for the children, especially Wiki.  The witnesses I am referring to are entirely independent people – the witnesses from the Strive Trust and the social workers from CYFS who are especially trained to look for signs of violence or abuse.  No alarm bells rang with them.

[27]     In the same vein, I have read the references that your counsel has provided, from family members and other friends.   These were written when you were first charged in relation to Cezar’s death.   All of them express astonishment that the James Hemana they know could have acted in such a way.  And their surprise is consistent with your previous criminal record.  That record largely consists of crimes against property – burglary, theft and so on.   I do not make light of that but your record does not show that you are prone to violence against adults or children.

[28]     Thirdly,  there  is  the  pre-sentence  report  and  a  separate  report  that  your counsel has made available from a psychologist.  The pre-sentence report is of little use because you did not engage with the person in charge of preparing that report. The report that your counsel has made available, without objection from the Crown, is lengthy and thorough.  It is clear from that report that your upbringing suffered as a result of neglect and violence at the hands of your own parents, or those standing in place of parents.   Those adults who were directly responsible for your wellbeing appear to have failed to take any proper interest in you, your education or your upbringing.  As a child and teenager you were sent from house to house to CYFS homes and so on – basically from pillar to post on my reading of it.

[29]     It is equally clear from that report, however, that  you have abilities and aptitude in several areas.  I very much hope that in prison you will be given some of the opportunities that will allow you to fulfil that potential, such opportunities being those that other people can take for granted.   I also note that you have several children and rightly consider them to be the bright spots on your horizon.

[30]     There is one other important matter that I do not overlook.   That is your admission, well before the trial, that your actions caused Cezar’s death and that you were guilty of manslaughter.  That admission meant that the sole issue at trial was whether you had murderous intent, that is what your state of mind was at the time

you inflicted injury on Cezar.  Only you and Victoria could know what went on that morning.  But for your admission it would have been her word against yours, if she had chosen to give evidence.  And in acknowledging the crime of manslaughter, you knew that you would face a long period of imprisonment, even though of course considerably less than you now face.

[31]     I put some weight on that acknowledgment Mr Hemana.   I am not at all satisfied that you would be here now that in the absence of that acknowledgment.

Sentencing

[32]     I turn now to  the  sentencing on  the two  charges.   You,  the Crown  and

Mr Bonnar have approached this in a very realistic manner for which I am grateful.

Murder

[33]     I deal first with the murder charge.  First, as Mr Bonnar acknowledges, I must impose a sentence of life imprisonment on the murder charge unless it would be manifestly unjust to do so.  It would not be manifestly unjust in this case.

[34]     Secondly, I must fix a minimum period of imprisonment, being the number of years that you must serve in prison before you are eligible to be released.

[35]     Thirdly, special considerations arise from the fact Cezar was a six month old baby and so particularly vulnerable.  This fact bears on the length of the minimum period of imprisonment that I am required to impose.

[36]     I am required by s 104 of the Sentencing Act 2002 (“the Act”) to impose a minimum period of imprisonment of at least 17 years because Cezar was particularly vulnerable as a result of his age.  I may only impose a lesser period if I consider that

17 years would be manifestly unjust.  That is a very high threshold Mr Hemana.  As your counsel has acknowledged, that means the main issue is whether it would be manifestly unjust to impose a 17 year minimum period of imprisonment.

[37]     Quite aside from the fact that Cezar’s age made him particularly vulnerable, Mr Hamlin submits that your actions on 13 July were committed with a high level of brutality, cruelty or callousness and that is a reason for increasing the minimum period of imprisonment.

[38]     I am not satisfied that your actions on 13 July were committed with a high level of brutality, cruelty or callousness.  The position might well be different if I was sure that you had dropped Cezar more than once.  But I am not.

[39]     For that reason I propose to proceed on the basis that you are within the special class of s 104 of the Act solely because Cezar’s age made him particularly vulnerable.

[40]     In the case of R v Williams,[1] the Court of Appeal said that the correct way to approach a case such as this is to decide on a starting point, by considering all the aggravating and mitigating features of the offending, comparable cases and matters relating to your personal circumstances.   I then need to consider whether the imposition of a minimum period of imprisonment of 17 years would cause manifest injustice, and whether it is necessary to reduce that period.

[1] R v Williams [2005] 2 NZLR 506.

[41]     Aside from Cezar’s age, I am not satisfied that there is any other aggravating feature relating to the offending which must be taken into account.  You could and should have come to your senses but that does not aggravate the offending.   It is Cezar’s age and vulnerability which is the critical factor.  I am also conscious that you did not seek medical attention but I am sentencing you separately in relation to that matter and I do not consider it is an aggravating factor which I must now take into account for the purposes of fixing the minimum period of imprisonment.

[42]     The most compelling feature of this case is the fact that I have proceeded on the basis that you shook and dropped Cezar once only.  In many other cases where a minimum period of imprisonment has been imposed there has been evidence of repeated blows or evidence of prior injury, indicating a pattern of sustained violence

towards the child.

[43]     I have also considered the other cases to which the Crown and your counsel have referred me in which s 104 of the Act has been applied because of the age of the victim.  These include R v Blair Williams, R v Kapea, R v Pickering, Mahomed v R and R v Ngati-Check.[2]   The assaults in those cases were far worse than this, but then in some of them such as R v Kapea and R v Mahomed, the Court started with a minimum period of imprisonment of more than 17 years.

[2] R v Blair Williams HC Wellington CRI 2004-078-1816, 24 February 2006; R v Kapea HC Auckland

[44]     I have also taken close account of the decision in R v Paul.[3]    In that case a

14 month old child was killed by a single punch to the stomach, so it is similar to this case in that respect.  The child was killed as a result of a single act.  Mr Paul, the wrongdoer, sought immediate medical help, but he also persisted in a lie to Police about how the injury had been caused.   So the case was not identical.   The High Court came to a view that a minimum period of imprisonment of about 15 years would have been appropriate but held that it was not manifestly unjust to require Mr Paul to serve a minimum period of 17 years.   Mr Paul appealed to the Court of Appeal on several grounds, including that the Court had not given sufficient weight to the brief and unpremeditated nature of the violence.  The Court of Appeal rejected the appeal.

[3] R v Paul CA496/05, 1 August 2006.

[45]     I have also considered the other matters relating to you personally to which your counsel referred me, namely the acknowledgment that you caused the death, the out of character degree of violence and the lack of relevant convictions.

[46]     Mr Hemana as I have said the compelling feature of this case is that I am willing to accept this was a single incident.  But for the Court of Appeal’s decision in R v Paul, I would have considered that you should serve a minimum period of imprisonment of 15 years, possibly with some uplift for the failing to provide charge. Because of that decision, however, and uneasy as I am at the result in this case, I am not satisfied that to require you to serve a minimum period of imprisonment of

17 years would be manifestly unjust.[4]

Failing to provide

[4] R v Williams [2005] 2 NZLR 506 at [67].

[47]     The offence of failing to provide the necessaries remains to be considered. The offence carries a maximum term of imprisonment of seven years.  You knew Cezar was ill, you were a 30 year old father, and you were the one who had inflicted the injuries.   I could, but am not going to, increase the minimum period of imprisonment because as I have said I consider this to be an extremely difficult case. On the charge of failing to provide the necessaries of life, I propose to impose a sentence of four years’ imprisonment, to be served concurrently.

[48]   Please stand.   On the charge of murder, I impose a sentence of life imprisonment, and fix a minimum period of imprisonment of 17 years.   On the charge of failing to provide the necessaries of life, I impose a sentence of four years, to be served concurrently.

[49]     Stand down.

..................................................................

PETERS J

CRI 2007-092-16885, 25 November 2008; R v Pickering HC Auckland CRI 2008-055-1273, 30 July
2010; Mahomed v R [2010] NZCA 419 and R v Ngatai-Check HC Wanganui CRI 2009-083-3155, 23

February 2011.