R v Huata

[2017] NZHC 704

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2016-020-000361 [2017] NZHC 704

THE QUEEN

v

TAMIHANA HEMI TE TAU HUATA

Hearing:	11 April 2017
Counsel:	S B Manning and C R Stuart for Crown E R Fairbrother QC and L P F Lafferty for Defendant
Sentencing:	11 April 2017

SENTENCING NOTES OF THOMAS J

[1]      Mr Huata, you were found guilty on one charge of manslaughter1  and one charge of injuring with intent to injure2  on 24 February 2017 following a jury trial before me in the Napier High Court.

[2]      You appear today for sentence on those charges.

Facts

[3]      The victim in this matter, MJ, was a two and a half year old boy. You were in

a relationship with MJ’s mother, Eranna, and the three of you were living together.

1      Crimes Act 1961, ss 160(2)(a), 171 and 177 (maximum penalty life imprisonment).

2      Section 189(2) (maximum penalty five years imprisonment).

R v HUATA [2017] NZHC 704 [11 April 2017]

[4]      On Monday 12 October 2015, the three of you awoke having spent the night sleeping together in the lounge.  MJ was changed out of his nappy and nightwear and given breakfast.  He had no unusual marks or bruises on him at the time and seemed happy and in good spirits.

[5]      At around 9.00 am Eranna left the house for work. As you and MJ were both suffering from colds, you remained at home together.  You and MJ lay on a mattress watching TV in the lounge. At 10.10 am you exchanged texts with Eranna.  Nothing appeared to be amiss at this point.  At 10.15 am you told Eranna, via text, that you were going to shower yourself and MJ.

[6]      At 10.51 am you phoned Eranna.  You told her MJ was not well and asked her to come home.  She arrived home at 11.00 am and found MJ unconscious and unresponsive on the mattress in the lounge.  An ambulance was called shortly after

11.00 am.  MJ was taken to hospital.  He had suffered a significant bleed on the right side  of  his  brain,  a  subdural  haematoma.    There  were  three  marks  with  the appearance of bite marks on his body: on his right cheek, right shoulder, and left side of his chest.  There were also other injuries and bruising on his face and body.  MJ died on 14 October 2015 as a result of his head injury.

[7]      On the day in question you were the only one at home with MJ.  There was a period of 34 minutes between the last time you texted Eranna to the time you called asking her to come home.  The Crown case was that, while you were generally a good step-father, on this particular occasion, you lost your temper and lashed out at MJ. This caused the head injury, multiple bruises and marks MJ suffered.

[8]      Your defence was that the injuries must have been caused by accident.  You told the police that while you were holding MJ in the shower he lurched out of your arms and hit his head on the shower wall.  You wrapped him in a towel, you said, and he walked or ran to the lounge, “donging” his head against the wall as he did so. You said shortly after that you found him lying face down on the carpet at the bottom of two stairs.   At trial the defence theory was that MJ had tripped or slipped and hit his head on an internal brick wall before falling down the steps which led to the lounge.

[9]      The jury found you guilty on both charges.   This means in relation to the manslaughter charge, they were sure you assaulted MJ with such force to cause the subdural haematoma and this was a substantial and operative cause of death.   In relation to the injuring with intent charge the jury were sure you intentionally caused the injuries on MJ’s right cheek, right shoulder and left chest, whether by biting him or inflicting force in some way. You continue to deny responsibility.

[10]     I agree with the Crown that sentencing should proceed on the basis of the following facts taken from the evidence at the trial:

(a)       The head injury was caused by a blunt force blow (or blows) to MJ’s

head and face.

(b)      The force used was severe.

(c)      In addition to that force, you also delivered further blows resulting in additional bruises to MJ’s face and body.  You did admit to slapping MJ that day and the experts described tramline marks on his face consistent with a slap.

(d)You bit the victim in three separate locations – the right cheek, right shoulder and lower left chest.

[11]     There is no suggestion this was part of any ongoing pattern of violence.

Personal circumstances

[12]     You are currently 19 years old and were 17 years old at the time of the offending.  This is your first appearance before the courts.  The pre-sentence report writer noted you presented as humble and grief stricken and appeared genuinely remorseful over MJ’s death while maintaining your innocence.

Victim impact statement

[13]     I have read and acknowledge the victim impact statements of MJ’s paternal grandparents and his grandfather’s partner, and of course we have heard a very

eloquent statement read out this morning by Ms Te Ahuru.  They all express their feelings of loss, disbelief, sadness and anger at the loss of MJ and the way in which he died.

[14]     Eranna has also provided a victim impact statement.   She talks about her experience as MJ’s mother, that she worked hard to ensure that MJ, who was her main priority, was happy and well cared for.  She says she is clear about her love for both MJ and you.

Starting point

[15]     There is no guideline judgment or tariff case for manslaughter sentencing. The circumstances vary so widely and there is a corresponding range of culpability.3

In child manslaughter cases, previous decisions must be applied with care as they represent both the level of criminality and the particular mitigating factors in the circumstances.  As recognised in Leuta violence inflicted upon a child is worse than that  directed  at  another  adult.    A child  is  vulnerable  and  defenceless  and  the

defendant is often in a position of power and responsibility.4   The circumstances of

other cases can guide but cannot govern.5

[16]     In Woodcock v R the Court of Appeal stated:6

It is understandable that all the sentences are not necessarily reconcilable given the factual difference of each case.  However, the more serious have attracted a starting point of ten years and above and most  incorporate  the  aggravating feature of  prior offending which establishes a pattern of abuse.

The absence of that feature, allowing the fatal blow to be properly characterised as an isolated event evidencing a momentary and uncharacteristic loss of control, may operate to mitigate the starting point depending on the circumstances.

[17]      The case of Woodcock involved the manslaughter of a three month old baby.7

Her death resulted from a brain haemorrhage likely caused by an impact to the back

3      Geoff Hall Sentencing Law and Practice (3rd ed, Lexis Nexis, Wellington, 2014) at [I.5.9](a).

4      R v Leuta [2002] 1 NZLR 215 (CA) at [76]–[77].

5 At [81].

6      Woodcock v R [2010] NZCA 489 at [41].

7      Woodcock v R [2010] NZCA 489.

of the head.   She suffered a number of other injuries including fractured ribs. Although generally a good father, the defendant had engaged in a chain of abuse in the last week of the victim’s life.   A starting point of 12 and a half years’ imprisonment was applied.   The violence appears to be more severe than in the present case.

[18]     In  Broadhurst  the  two  year  old  victim  suffered  serious  head  injuries consistent with being shaken and slammed into a hard surface.8    The appellant had previously been violent to the victim.  However, he immediately sought help after the incident.  A starting point of eight and a half years’ imprisonment was applied.  I note that case occurred before s 9A of the Sentencing Act 2002 came into force.

[19]     In  Hapuka  the  five  month  old  victim  was  unwell  and  unsettled.9      The defendant hit the victim out of frustration, causing the victim’s liver to rupture.  The violence involved a single blow, not a sustained period of violence, the Judge accepting the defendant struck one blow in a moment of anger.  A starting point of nine years’ imprisonment was applied.

[20]     The case of Donnelly involved the death of a three year old girl.10    She was slapped and then the respondent picked her up by her ankles and swung her around the room.  She came out of his hands and hit her head on a solid object.  Medical attention was not sought immediately. A starting point of 10 years was applied.

[21]     As  I  say,  those  cases  provide  some  guidance  but  each  case  must  be considered according to its facts.

[22]     Two issues  need  to  be  addressed  in  this  case.   The first  is  whether  the violence was more than a momentary loss of control.  The second is whether you sought help.  Both those factors have been taken into account in comparable cases.

(a)      More than a momentary loss of control: the Crown submits that your actions amounted to more than a momentary loss of control, saying the seriousness of

8      R v Broadhurst [2008] NZCA 454.

9      R v Hapuka [2012] NZHC 1314

10     R v Donnelly [2011] NZCA 433.

the head injury combined with the number, nature and location of the remaining injuries suggests MJ was subjected to significant violence.   MJ suffered three sets of injuries.   The fatal injury to his head, the three bite marks, and other injuries over his face and body not present when Eranna left that morning.   There was no separate charge in relation to the third set of injuries but all the injuries make it clear this was more than just one application of force, indicating more than a momentary loss of control, or a reaction to behaviour. You inflicted a number of injuries on MJ.

(b)Seeking help: you did not call 111 for help.  However, you did call Eranna and ask  her to come home.   This may have been immediately after the incident, or very shortly afterwards, given there was a 34 minute period over which the incident could have occurred.   Eranna returned home and called

111 and you did not prevent her from doing so.

[23]     This case is more serious than the case of Hapuka.  However, there was no prolonged  period  of violence.   You  also  called  Eranna relatively soon  after the offending to seek help.

[24]     Given the context of the injuring with intent to injure charge, I treat it as an aggravating factor of the manslaughter and therefore include it in the starting point on a totality basis.

[25]     I have also considered that in manslaughter cases involving serious violence the factors in Taueki11  are relevant.12    In this case the factors are extreme violence, the fatal injury, attacking the head and vulnerability of the victim.  This would place the offending in band three, which has a starting point of nine to fourteen years’ imprisonment.13

[26]     The factors from s 9A of the Sentencing Act must be taken into account as this case involves violence against a child.  Enacted in 2008, this section mandates

11     R v Taueki [2005] 3 NZLR 372 (CA).

12     R v Tai [2010] NZCA 598.

13     Taueki at [34] and [40].

that factors associated with violence against a child be specifically taken into account as aggravating factors.

[27]     Mr Fairbrother submits  that  your  youth  should  be  taken  into  account  in assessing your level of culpability.  This is not the correct approach to sentencing.  In sentencing the first step is to determine the sentencing starting point taking into account the aggravating and mitigating factors of the offending.   Then the second step  is  to  take  into  account  aggravating  and  mitigating  factors  personal  to  the

offender.14   Youth is a mitigating factor personal to the offender and as such should

be recognised as a discount to the starting point.15

[28]     The Crown submits a starting point of 10 years’ imprisonment is appropriate. Mr Fairbrother submits a starting point above eight years would not be appropriate. The facts disclose this was more than a momentary loss of control and I do not consider the defence approach adequately takes into account the seriousness of the offending.

[29]     In summary, the aggravating factors in this case are: MJ was particularly defenceless and vulnerable given his age and size (two years seven months old and

14 kilograms); the degree of force used to inflict the fatal head injury must have been severe, as attested to by the medical evidence; this occurred in the context of other assaults, evidenced by the bite marks and the number, nature and location of the other injuries MJ sustained; and there was a significant breach of trust in that you were entrusted to care for MJ.

[30]     In the circumstances, I take a starting point of 10 years’ imprisonment.

Mitigating factors

[31]     You were 17 at the time of offending.  You turned 18 one month later.  Youth can qualify you for a reduction to the starting point.   Youth is recognised as a

discount  because  the  offending  may  have  been  an  act  of  immaturity,  youthful

14     R v Taueki [2005] 3 NZLR 372; (2005) 21 CRNZ 769 (CA) at [8]; R v Fatu [2006] 2 NZLR 72; (2005) 22 CRNZ 410 (CA) at [21]; and R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23, (2011) 25 CRNZ 567 at [60].

15     Sentencing Act 2002, s 9(2)(a).

indiscretion  or negative  outside influences.   Young  people  often  have  a  greater difficulty regulating their behaviour and impulses and may not fully appreciate the gravity of their actions.  They also have a greater capacity for rehabilitation and a sentence of imprisonment may have a harsher effect on a young person than on an adult.16

[32]     Youth may have contributed to your offending in that the offending appeared to be impulsive in nature.  Your immaturity may have led to a loss of control.  As a young  person  you  will  have  a  greater  capacity  for  rehabilitation  and  a  prison sentence may have a harsher effect on you.

[33]     You are a young man with no prior convictions.   The evidence was that, before this event, you acted as a loving step-parent to MJ.  The Crown accepts you found yourself in a situation which would have been challenging for an experienced parent and you lacked the life skills and maturity to deal with the challenges of caring for a toddler when you yourself were unwell.  There is no doubt you were extremely upset immediately following what occurred.

[34]     The pre-sentence report says you presented as humble and grief stricken and you demonstrated what appeared to be genuine remorse over the death of MJ. However, you continue to deny the offending and you do not accept that MJ’s death was the result of your own actions.  In my assessment your state is more correctly characterised as your being sorry MJ died.  Therefore there can be no discount for remorse.

[35]     While your refusal to accept responsibility may hamper your capacity for rehabilitation, a period of imprisonment and time for reflection and acceptance will, it is hoped, assist in this regard.  Mr Fairbrother suggests that your construction of reality does not yet allow for an acknowledgement of the enormity of your loss of control.  Your otherwise positive background indicates that there are good prospects

of successful rehabilitation.

16     Simon France (ed) Adams on Criminal Law – Sentencing (online ed) at [SA9.17].   See for example Arahanga v R [2014] NZCA 379 at [26], and Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].

[36]     Overall I agree with the Crown that a discount of 25 per cent is appropriate. This recognises your age and previous good character.

Conclusion

[37]     Mr Huata please stand.

[38]     Mr Huata, on the charge of manslaughter, you are sentenced to seven and a

half years’ imprisonment.

[39]     On the charge of injuring with intent to injure you are sentenced to two and a

half years’ imprisonment to be served concurrently.17

[40]     Stand down.

Thomas J

Solicitors:

Crown Solicitor’s Office, Napier

17     Guideline judgment R v Nuku [2012] NZCA 584 – the Taueki factors present were an attack to the head (there was a “bite” mark on his right cheek) and vulnerability of the victim.   This, together with s 9A considerations, would put this offending in band two of Nuku where a starting point of up to three years is appropriate.