R v I
[2022] NZHC 2288
•8 September 2022
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) 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-2020-044-1733
[2022] NZHC 2288
THE QUEEN v
I
Date of Hearing: 8 September 2022 Appearances:
M W Nathan for the Crown
E P Priest and I M Brookie for the Defendant
Judgment:
8 September 2022
SENTENCING NOTES OF POWELL J
[Redacted]
Solicitors/Counsel:
Meredith Connell, Auckland (M Nathan/L Oh)
Blackstone Chambers, Auckland (E Priest and I Brookie)
R v I [2022] NZHC 2288 [8 September 2022]
[1] You come up for sentence this morning having pleaded guilty to one charge of wounding with reckless disregard.1 At the end of the sentencing I will also consider whether your existing name suppression orders should be made permanent.
[2] The charge that you have pleaded guilty to relates to injuries suffered by your then six-month old son, A, in an incident that occurred on 16 May 2020. There is no doubt that A suffered serious injuries in the course of that incident: at issue and upon which you stand to be sentenced today is your degree of culpability for those injuries.
[3] Where someone pleads guilty to an offence, what occurred is generally set out in a summary of facts and a Court is required to sentence on that summary.2
[4] As you will be aware, upon becoming assigned as sentencing Judge, I repeatedly expressed my concern that the original summary of facts agreed as between the Crown and yourself in this case did not disclose a criminal offence and that I could not therefore sentence you, notwithstanding your guilty plea.
[5] This resulted in an amended version of the summary of facts, and following a hearing on 26 August and having heard submissions from counsel, I reached the conclusion that there was a sufficient basis to proceed with sentencing today. In terms of your actions on 16 May 2020 the relevant parts of the summary commence by noting:
On the morning of Saturday 16 May 2020 [you were] home alone with six month old A and his two year old sibling, E.
At about 6pm, [you] fed A his last bottle before bed. At some point during the feed, [you] noticed that A [became] unresponsive.
After picking up A, it appeared that he was not breathing. [You] then began to panic, and placed A over [your] knee and gave him back blows.
He continued to be unresponsive and [you] alternated between picking him up and administering back blows over [your] knee.
1 Crimes Act 1961, s 188(2).
2 R v Apostolakis (1997) 14 CRNZ 492 (CA) at 494; Pokai v R [2014] NZCA 356 at [30].
[6] It is not in dispute that to this point there is no criminal conduct whatsoever disclosed in the summary. Instead, the totality of the criminal offending at issue is recorded as follows:
[Your] sense of panic increased and [you] then picked up A holding him around the ribs compressing them and ran through the house to [your] bedroom. During these events, A’s neck was unsupported and his head was shaken forward and backwards repeatedly.
[7] It is important to note that there is no suggestion in the summary that you deliberately shook your baby: on the contrary, the summary indicates that the shaking that took place occurred because A’s head was unsupported in the necessarily brief period while you were running with him to the bedroom, and this is the only period in which any form of criminal offending is specified. The summary goes on, somewhat artificially, to state:
When running through the house with A’s neck unsupported and by squeezing A’s ribs [you] foresaw the possibility that injuries may result from [your] actions, and nonetheless continued with the course of conduct regardless of this known risk and in the circumstances known to [you], this risk was an unreasonable one for [you] to take.
[8] Thankfully, although your attempts to revive A were unsuccessful you called paramedics and they were able to successfully treat A. Although his injuries were serious, he appears at this point to have made a full and complete recovery.
Sentence
[9] As you have heard me discuss with counsel this morning the present sentencing is unusual. Normally a criminal sentencing proceeds by way of a two-stage process, whereby I begin by determining a starting point with reference to the seriousness of the offending and then go on to consider the personal circumstances of the offender to determine an end sentence.3
[10] This was indeed the approach urged on me by the Crown and to a lesser extent by your counsel in the written submissions that were filed in advance of this hearing. As you have heard, Mr Nathan submitted that a starting point of 18 months to 2 years’
3 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
imprisonment was warranted for your offending, following which discounts of some 45 per cent could be applied leading to a notional end sentence of between 10 and 13 months’ imprisonment, to be served as a community-based sentence. Mr Nathan, as you have heard, went on to submit that notwithstanding that conclusion, as a community-based sentence would create ongoing difficulties, counselling and supervision by itself would be an appropriate sentence in these circumstances.
[11] Having considered those submissions, and with respect to all counsel who have grappled with these issues, as you have heard this morning it is difficult for me to conclude, on the basis of the summary of facts that I have set out, that the level of criminality disclosed would in any way result in the type of starting points proposed by either the Crown or defence counsel, let alone that the various guideline judgments on serious violence are remotely relevant in your case.4 As you have also heard I cannot see that the case of R v Thorburn5 referred to by Mr Nathan is in any way what we would call a useful comparator, noting that the defendant in that case was clearly reckless in throwing the baby involved repeatedly in the air and then, after dropping that baby and perceiving it to be lifeless, deliberately shook it causing permanent injuries, including extensive brain damage.6 Instead I conclude on the basis of the summary of facts in this case that your culpability is at the very lowest level.
[12] To the extent that offending is disclosed in the summary, it occurred, as the summary also records, in the context of the death of your partner by suicide six months before the incident for which we are here today. You not only found your partner unresponsive and unable to be revived, but as a result went into spontaneous and premature labour, leading to A being born some 10 weeks early and has resulted in you suffering a range of mental health issues including post-traumatic stress disorder.
[13] Furthermore, I note that A had suffered from previous apnoea incidents while feeding while in hospital, where you observed nurses providing chest stimulation and you received training in CPR. It is no wonder that this further increased your panic and there is medical evidence to suggest that the previous trauma you have gone
4 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39; R v Taueki [2005] 3 NZLR 372 (CA).
5 R v Thorburn HC Auckland T023763, 30 July 2008.
6 At [4]
through would also have affected your response to the situation you found yourself in when you discovered A apparently unconscious and unresponsive.
[14] It is no wonder then, and as the summary also records, that when you found A unresponsive you panicked and continued panicking, the more so as your attempts to revive him were unsuccessful. Although the point at which the accepted criminal offending began did not directly involve attempts to resuscitate A, counsel were nonetheless agreed that the reason you carried A to the other room was to get away from your other child, your toddler E then aged two, who by that time was also distraught and crying.
[15] Taking these matters together it is clear on the summary of facts that there was not only no intention at any point to harm A, but that any offending was necessarily fleeting and a by-product of running to the other room with A. Furthermore, and contrary to the submissions of counsel, any appreciation on your part that the force being applied was likely to injure A not only appears to have been made with the benefit of hindsight, although I acknowledge that it is genuine on your part, but noting the legalistic wording contained in the summary, it is impossible for it to be reconciled with the level of understandable panic that is otherwise apparent from the summary.
[16] On what basis then should you be sentenced today? As you have heard me discuss with the lawyers, almost all of the purposes of sentencing as set out in section 7 of the Sentencing Act 2002 (“the Act”) are not applicable. At best the sentencing could be seen as an opportunity to promote in you a sense of responsibility for, and an acknowledgement of, the harm done to A.7 However, the information put before me including a psychiatric assessment and reports confirming the close scrutiny of your parenting that has taken place since the incident, as well as extensive statements made in support of you, confirms that you already have a clear sense of responsibility for A and have clearly acknowledged the injuries that he suffered.
[17] Similarly, in terms of s 8 of the Act, I acknowledge that the charge to which you have pleaded guilty is serious.8 However the gravity of your offending and your
7 Sentencing Act 2002, s 7(1)(b).
8 Sentencing Act 2002, s 8(b).
degree of culpability as disclosed in the summary is self-evidently at the lowest level, while in terms of the aggravating and mitigating factors set out ss 9 and 9A of the Act, it appears to me that the only matters of relevance are the self-evident vulnerability of A which is not in dispute. As I discussed with Mr Nathan, given this level of culpability it is extremely difficult for me to see how concepts such as deterrence and denunciation can possibly be relevant in the present case. Instead, I entirely reject the submissions of counsel that any starting point of imprisonment could possibly be appropriate on the basis of the offending disclosed in the summary. Simply put, the level of criminality contended for in the Crown’s written submissions is in no way reflected in the summary of facts before me. To conclude otherwise would require an entirely different summary of facts.
[18] What I am required to do is “impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in section 10A” of the Act.9 The least restrictive sentence available to me to impose upon you is a discharge without conviction which I am required to consider pursuant to s 11 of the Act.
[19] The requirements for a discharge without conviction are set out in ss 106 and 107 of the Act and as you have heard both Mr Nathan and Ms Priest have made submissions on whether a discharge is appropriate in the present circumstances. Under these sections, a Court can discharge a defendant without conviction if it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending. This requires the Court to identify the gravity of the offence, then the direct and indirect consequences of a conviction, and then consider whether those direct and indirect consequences would be out of all proportion with the gravity of the offending. In this context, gravity of the offence is a concept which requires analysis of both the circumstances of the offending, and of the offender,10 as well as anything else that may affect the Court’s assessment of overall culpability.11
9 Section 8(g).
10 R v X [2015] NZHC 1244 at [2].
11 Delaney v Police HC Wellington CRI-2005-485-22, 23, 24, 25, 27, 28, 22 April 2005 at [29].
[20] As you have heard Ms Priest has referred to numerous cases involving the death of young children caused by inadvertent and/or negligent acts by parents who were otherwise caring and responsible, where a discharge without conviction has been assessed as being the correct outcome.12
[21] In considering the gravity of offending in your situation, for the reasons I have already set out, I accept that your culpability sits at the lowest end of the spectrum. While you have by your guilty plea accepted that your actions towards A were reckless for a brief period, the broader context of the offending must also be looked at, where your overall aim throughout was to resuscitate A, rather than to cause him any harm or injury. There is absolutely no evidence of ill-intent, any intention whatsoever to resort to violence or any form of premeditation, while the fact that you were panicking is also entirely understandable given the background circumstances that I have already detailed.
[22] A has also, as I have noted, fully recovered from his injuries and appears to have suffered no permanent damage, thereby decreasing the long-term impacts of your offending.
[23] Turning to further personal factors relevant to you, there can be no dispute that you are a good mother who wants the best for her children, and that this was an isolated
12 R v X, above n 10: In this case, the victim’s mother had gone into “autopilot mode” and forgot to drop the victim at day care on the way to work, resulting in him accidentally being left in the car where he later died of heatstroke and dehydration. The defendant’s culpability for the offending was assessed to lie towards the lower end based on the fact that there was no initial appreciation of risk, instead the victim experienced an “extraordinary blanking of the mind”. Turning to the defendant herself, France J noted that the defendant had made a statement and pleaded guilty as soon as possible, had contributed significantly to society and had already suffered a terrible loss. These factors, as well as the significant stigma associated with the manslaughter of a child, supported the conclusion of a discharge without conviction.
R v T [2021] NZHC 64: In this case, the victim’s mother left the victim and his brother in the bath and forgot to take out the plug while tired and distracted, and when she came back 16-20 minutes later the victim was unresponsive, resulting in his death. Cooke J first considered the consequences of a conviction first, where there was a concern for the defendant’s mental health given that she had suffered significant mental health difficulties in the past and was experiencing depression from the loss of her child. When weighing these factors against the gravity of the offending, where she had made a simple mistake while exhausted, a discharge without conviction was considered to be the appropriate outcome.
R v Illston HC Whanganui CRI-2011-034-273, 26 October 2011: A mother left her 22-month-old daughter in the swimming pool with older children while going inside to tend to her other child. A sentence indication was given that she would be discharged without conviction under s 106, which was ultimately granted. She pleaded guilty to ss 156 and 150A of the Crimes Act 1961, which generally requires a subjective awareness of risk.
incident for which you have accepted full responsibility. You have no previous convictions, you are of good character and you are clearly highly remorseful for the circumstances that have led to this point. You had to see A in pain and to come to terms with the fact that you contributed to his injuries, which I am sure provides a degree of punishment on its own. You called 111 as soon as the offending occurred and took responsibility by pleading guilty after receiving medical reports and full legal advice. There is no doubt too that these factors decrease your culpability for the offending.13
[24] Since the incident, as I have noted, your parenting has been placed under intense scrutiny and I have already referred, in the course of my discussions with counsel, to the report of Lisa Westhall, a child therapist working in maternal mental health who was appointed by Oranga Tamariki. Ms Westhall worked with you for some 720 hours to assess your parenting skills and whether or not you posed any form of ongoing risk to A and E. She concluded that you were an exemplary parent and neither she nor Oranga Tamariki have any ongoing concerns about A and E remaining in your care.
[25] In my view, the circumstances of your offending and your personal factors decrease the gravity of this offending to an almost negligible level. As a result of this, the consequences of conviction do not need to meet a particularly high threshold to be out of all proportion to the gravity of the offence.
[26] As the Court of Appeal has observed a conviction alone is a significant consequence on an otherwise clean record, especially for a young person who does not yet have a foothold in a career.14 This is particularly relevant where the charge you have pleaded guilty to is a serious violence offence. It is clear that your children are your ultimate priority and you are their sole provider, and I recognise that a conviction would result in a real risk of financial difficulties for your family. At such a young age you have experienced a significant degree of trauma, and I consider that a conviction would unnecessarily add to this. The opportunities available to you in the future, whether that is with regard to employment, travel or otherwise, which then
13 See R v X, above n 10, at [10]–[11].
14 Gaunt v Police [2017] NZCA 590 at [15].
flow on to the opportunities that your children might receive, should not be limited by these events.
[27] On the facts as they are before me and taking a broad view as urged on me by Ms Priest, I am satisfied that even a conviction in this case would be out of all proportion to the gravity of your offending. In my view a conviction here would in no way reflect your character, or culpability for this offending. I consider that there is no benefit to the community in convicting you, given that there are no relevant sentencing principles that would be advanced, and in those circumstances a discharge without conviction is not only warranted, it is the only appropriate sentence based on the summary of facts and the broader information that has been placed before me.
[28] On your charge of wounding with reckless disregard you are discharged without conviction under ss 106 and 107 of the Sentencing Act 2002. You will be free to go at the end of this hearing.
Name suppression
[29] I now move on to dealing with your application for permanent name suppression. You were granted interim name suppression until this point, and I now need to formally reconsider that decision.15 I note that the Crown is not opposed to this application for final name suppression, nor do I understand it to be opposed by media representatives. As you will have been advised the law only allows suppression orders to be made in limited circumstances and generally the threshold is high.16 To determine this issue, I need to consider two matters:17
(a)Whether publication of your name is likely to lead to the identification of either of your two children, whose names are already suppressed under law18 (“the threshold determination”); and if I decide that that is so
15 Criminal Procedure Act 2011, s 200.
16 R v Kempson [2019] NZHC 166 at [18].
17 Robertson v Police [2015] NZCA 7 sets out the two-step test to be met in order for the Court to exercise its discretion under the CPA, s 200.
18 Criminal Procedure Act 2011, ss 200(2)(f) and 204. As Moore J found that the threshold determination was met under s 200(2)(f), he did not need to determine an alternative argument based on s 200(2)(a) that I would face extreme hardship if her identity was published but noted he
(b)I must then weigh up the competing interests of you and the public (“the discretionary assessment’).19
[30] I have been referred to the decision of Moore J on 28 October 2020,20 where his Honour granted you interim name suppression on the basis that the publication of your name would be likely to lead to the identification of your two children’s names. [Specific information redacted which if defendant’s name published could lead to the identities of her children to be revealed publicly]. I agree with this reasoning and consider that it remains valid. [Information about current position redacted].
[31] Moving to the discretionary part of the assessment, I accept that you and your children have been through a very traumatic period and recognise that publication of your name would result in at least some further stress and unwanted attention for you and your whānau. At this stage of the exercise, your interests must be weighed against the interests of the public. In this case I do not see that there is any clear public interest in the publication of your name, particularly given the nature of this offending where there is such a low degree of criminality for all of the reasons I have already canvassed.
[32] I therefore exercise my discretion in favour of granting permanent name suppression. In these circumstances I conclude your interests outweigh those of the public, including open justice.
[33] An order for permanent name suppression is made pursuant to s 200 of the Criminal Procedure Act 2011. Publication of your name, address and identifying particulars is forbidden and a redacted version of these notes will be made available to the press following this hearing.
considered the argument persuasive, given the extremely difficult circumstances faced by I. It is likewise not necessary to consider s 200(2)(a) at this point given the application for permanent suppression is made in reliance upon s 200(2)(f).
19 This requires taking into account “whether the applicant has been convicted, the seriousness of the offending, the views of the victim and the public interest in knowing the character of the offender”: Robertson v Police, above n 17, at [41].
20 I v R [2020] NZHC 2814.
Powell J