R v I - [2022] NZHC 2288

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v I

Details

AGLC: R v I [2022] NZHC 2288
Case: [2022] NZHC 2288
Decision Date: 8 September 2022

CaseChat Overview and Summary

The case, R v I, involved a defendant who pleaded guilty to a charge of wounding with reckless disregard for the safety of their six-month-old son, A. The incident occurred on 16 May 2020, when the defendant noticed that A had become unresponsive and not breathing during a feeding. The defendant administered back blows, picked A up, and ran through the house to their bedroom, during which time A's neck was unsupported, and his head was shaken forward and backward repeatedly. The defendant's sense of panic increased, leading to the offending. A suffered serious injuries but was successfully treated by paramedics and made a full recovery.

The legal issues in this case revolved around the defendant's level of culpability for the offence and the appropriate sentence. The court had to decide whether the defendant's actions constituted a serious criminal offence and, if so, what the appropriate sentence should be. Additionally, the court had to determine whether the defendant's existing name suppression orders should be made permanent.

The court, after considering the circumstances and the defendant's background, concluded that the defendant's culpability for the offence was at the lowest level. The court found that the defendant's actions were driven by panic and a desire to resuscitate the child rather than any intention to cause harm. The court also took into account the defendant's mental health issues, lack of previous convictions, and remorse for the situation. Considering these factors, the court found that a discharge without conviction was the most appropriate sentence under the Sentencing Act 2002.

In terms of the name suppression order, the court found that the publication of the defendant's name was likely to lead to the identification of her children, whose names were already suppressed under law. The court also found that the defendant's interests in maintaining her anonymity outweighed the public's interest in knowing her identity, given the low degree of criminality in this case. Therefore, the court granted permanent name suppression for the defendant pursuant to section 200 of the Criminal Procedure Act 2011.

Final orders: The defendant was discharged without conviction under sections 106 and 107 of the Sentencing Act 2002. Permanent name suppression was granted for the defendant pursuant to section 200 of the Criminal Procedure Act 2011.

Orders