R v JD

[2021] NZHC 973

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF DEFENDANT AND VICTIMS PURSUANT TO SECTIONS 200 AND 202 CRIMINAL PROCEDURE ACT 2011 UNTIL FURTHER ORDER OF THE COURT. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-092-4600

[2021] NZHC 973

THE QUEEN

v

JD

Hearing:

4 May 2021

Counsel:

J J Rhodes for Crown

M J Dyhrberg QC, D-M Cross and H B Hellyer for defendant

Sentence:

4 May 2021

SENTENCING NOTES OF TOOGOOD J

Solicitors/Counsel:

Crown Solicitor, Manukau Marie Dyhrberg QC, Auckland

R v D [2021] NZHC 973 [4 May 2021]

[1]    JD, you appear for sentence having pleaded guilty to the manslaughter of your three-month-old daughter, T, on 13 April 2020 at your home in Papatoetoe.1 The maximum penalty for manslaughter is life imprisonment. In sentencing you, I accept as proved the essential facts that are set out in the agreed summary to which you pleaded.2

[2]    Before I begin, I acknowledge T’s mother, Ms K, and the members of her family and of your family. You are all greatly affected by the tragedy that has brought you here, and I extend the Court’s deepest sympathy to them all. I acknowledge also the short life of T, whose entry into your families was welcomed with love and affection, I have no doubt, and whose promise will never be realised.

Background

[3]    Distressing though it may be for Ms K and you, who loved that little girl, I need to explain the circumstances of your offending, so that people will understand the basis on which I am sentencing you.

[4]On 13 April 2020, Ms K, T, T’s older sister – your other daughter V, aged two

– and you were at your home due to the nationwide Level 4 lockdown that was part of the government’s COVID-19 pandemic response. Like almost everyone in the country at that time, your family and you had been in that locked down confinement for just under three weeks. I accept that, for many young parents of small children, that period had its challenges. You would have been subjected to unusual pressures with which you may not have been fully equipped to cope as well as older and more experienced parents. But as a parent you were responsible nevertheless for the well-being of two of the most vulnerable members of our society. T was completely dependent on you for her survival.

[5]    At approximately 6.00 pm, that day, Ms K handed you a bottle from which to feed T while she went to give V a shower. Although it does not appear in the summary of facts, it is now said by Ms Dyhrberg QC (and I believe you referred to this in talking

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

2      Sentencing Act 2002, s 24(1).

to Dr Wyness, the psychiatrist) that T had been unsettled earlier that day and that you had taken her out in the car to try and calm her down – something that usually worked but did not on this occasion. T was upset and unsettled when you were given the bottle, but you grew angry with the baby because she would not stop crying. You assaulted T brutally, hitting her head five to six times with a closed fist; striking her with the base of your hand in what you described as a “thumping” motion. When you were later asked by the Police to estimate the force you used, you said seven to eight on a scale of 10; similar to “jabbing” an adult in a boxing match. After striking T like that, you saw she “went out” and her body was loose.

[6]    You called out to Ms K, who rushed into the lounge from the shower. She saw that T was crying, but not her normal cry. The baby was struggling to breathe. Her breathing was heavy, and it sounded like her chest was blocked. T’s eyes started to get droopy and she appeared to be falling asleep.

[7]    You placed T on the ground and started to perform CPR while Ms K called for an ambulance. When the ambulance arrived, T was taken to Middlemore Hospital, but she was declared dead at approximately 7.40 pm.

[8]    You did not tell the ambulance officers you had hit T; instead, they were informed that T had displayed flu-like symptoms earlier in the week. Your failure to own up to what you had done could have had a serious detrimental effect on the circumstances. But as it happened, your brutality had been such that T had no hope of survival in any event. The cause of death was initially unknown but, due to the report of flu-like symptoms, her death was initially treated as a potential COVID-19 case.

[9]    The post-mortem examination took place three days later, on 16 April 2020. The preliminary cause of death was identified as blunt force injuries to the head and was later confirmed by subsequent pathological examinations that identified extensive injuries. One of the pathologists, Professor Colin Smith, found the presence of subdural membrane, suggesting previous subdural bleeding – that is, bleeding on the surface of the brain – from an historic post-birth head injury (which he was unable to date) that would have made T more susceptible to the fatal brain haemorrhaging that occurred. As a result of this, less force would have been required to cause T’s fatal

injuries than would otherwise have been the case. Dr Charles Glenn confirmed that your account of hitting T’s head multiple times with eight out of 10 force is consistent with, and accounts for, all of her injuries.

[10]   You did not initially own up to what you had done to T after she had died, saying in the first Police interview on 18 April 2020 that she had stopped breathing while you rocked her in your arms. Then, when challenged with the evidence that the injuries were likely to have been from an impact, you first said that you had put her down roughly on the floor. You then told the Police you had accidentally dropped T and that you had hit her round the head and chest in an attempt to rouse her. At the conclusion of that first interview, you said that you had shaken T out of anger.

[11]   It was not until the preliminary post-mortem findings were put to you in the second interview that you gave the account of rocking T vigorously as she cried and of then hitting her on the head five to six times, possibly more. You told the Police that you wanted to be the type of father who could settle his baby and you were frustrated that you could not, suspecting that this may have meant that Ms K had cheated on you and that T was not your child. You said that the baby’s crying made you feel like your head was going to explode. You admitted that you knew hitting T in her head was “harmful” – that the “hits were bad” because you were angry and frustrated – but you told Police you were not thinking right: “I wasn’t thinking at all

… I did it but I wasn’t thinking”.

Victim impacts

[12]   We have heard Ms K’s victim impact statement read. She says that as a result of T’s death, she went into a really depressed state. She misses her baby every day and deeply regrets giving T to you to feed. Ms K feels she carries the blame for that and cannot forgive herself. She says will struggle with T’s death and the fact that you caused it for the rest of her life. She felt angry and disgusted with herself for believing the lies you told her about that night, and she felt so much hate she turned to alcohol. For a time, she lost V who is now, thankfully, returned to her care. Despite everything, it appears she still supports you and hopes you will be a better person and someone that T would be proud of.

[13]   Of course, the primary victim in this case is T. She had barely begun her life when your violent attack snuffed it out. And your daughter V will never know the joy of growing up with a little sister, close to her in age.

Personal circumstances

[14]   You are now 22 years old and of Cook Islands descent. Your mother died when you were aged 13 and you felt betrayed by your father when he moved on swiftly into a relationship with another woman. You entered a gang lifestyle that exposed you to drugs, alcohol and a life of crime; you dropped out of high school with no qualifications. Despite that, only one previous conviction is recorded for an assault on Ms K, your partner of five years, committed in April 2019. Before your arrest for offending against T you were working as a furniture deliverer.

[15]   You have given conflicting accounts of frequent and regular alcohol and drug use in the months prior to your arrest and I am uncertain about what I should take from that.

[16]   The Probation officer who interviewed you on 26 March this year reports that you told her you had a daily methamphetamine habit costing you $200 a week, but that you had kept it a secret from Ms K until after you were arrested. You claimed that you had consumed methamphetamine two days prior to your attack on T and you had not slept. You said you took methamphetamine to feel “invincible”, but you told the report writer that when you assaulted T you were “coming off the meth and didn’t know what [you were] doing until it was too late”. You said you had argued with your partner over accusations about your infidelity, that you were still enraged from the argument when she handed you the bottle and that when the baby wasn’t settling, you “lost it”.

[17]   The Probation report writer determined on the basis of your self-reporting that your use of methamphetamine, fractured relationship and recourse to violence are the key factors contributing to your offending. The report suggests that you were not violent until you became engaged with methamphetamine, and that part of your anger was caused by your belief that Ms K had been unfaithful, and that T was not your baby.

[18]   You gave a somewhat different account of your lifestyle, however, when you were interviewed by a psychiatrist, Dr Wyness, in September last year. You told him you usually drank a box of 18–20 beers at home each day after work and that you would frequently go to work with a hangover. You said you smoked “heaps” of cannabis – around $80 worth each day – and that it relaxed you and allowed you to help Ms K with the children. Speaking to Dr Wyness, you denied using other illegal drugs including methamphetamine.

[19]   I accept the possibility that you may have started consuming methamphetamine between the time you saw Dr Wyness and the time you spoke to the Probation officer, but I consider what you told the Probation officer to be grossly exaggerated.

[20]   You reported to Dr Wyness that Ms K often criticised you as being “useless” around the home and a useless father because of your excessive drinking and cannabis use. I note that you do not blame her for anything that happened on that terrible night, but Dr Wyness concluded that your own experiences of abandonment, inadequacy and low self-esteem rendered you inadept at dealing with the emotional stress of meeting your childcare responsibilities – which you perceived to be “women’s work” – and providing emotional support. Dr Wyness states that with your not having developed more adaptive ways of coping with the effects of emotional stress upon you, and the emotional needs of others, you resorted to alcohol, drugs, and physical violence to cope. The latter was what you resorted to at the time of your offending against T.

Approach to sentencing

[21]   Mr D, sentencing is a two-step process. The first step I take is to set a starting point that reflects the seriousness of your offending by reference to similar cases and to any aggravating or mitigating features of the offending. From there, I will make adjustments – either up or down – to take account of your personal circumstances, including your age and your guilty plea.3

3      Moses v R [2020] NZCA 296 at [46]–[48].

[22]   I am required to have regard to the statutory purposes and principles of sentencing.4 I must hold you accountable for your offending and encourage you to be responsible for and acknowledge the harm you have caused. The sentence should be sufficient to denounce your conduct and protect the community. I have to consider the gravity and seriousness of your offending and take into account its impact on your victims. The sentence is to be the “least restrictive” that is appropriate in the circumstances, consistent with appropriate sentencing levels.

Starting point to reflect seriousness of the offending

[23]   Your case is a reminder that the maximum sentence for manslaughter is life imprisonment and that random acts of senseless and extreme violence resulting in death are likely to result in stern sentences in appropriate cases.5

[24]   There is no tariff decision in relation to manslaughter6 because the circumstances in which manslaughter can be committed are subject to significant variance,7 ranging from close to accidental, to just short of murder.8 Sentences can attract starting points of life imprisonment, for prolonged mistreatment of a child with fatal consequences.9 I accept that previous decisions must be applied with care; the circumstances of other cases “can guide but cannot govern” the determination of the appropriate sentence.10 The vulnerability of an infant victim at the hands of an adult responsible for their care is a key feature of this type of offending, making a violent attack on a defenceless baby all the more serious.11

[25]   T’s death occurred in circumstances of deliberate violence, where serious injury was a foreseeable and indeed inevitable consequence, making a Court of Appeal guideline for serious violence offences useful as a check on the assessment by reference to other cases.12

4      Sentencing Act 2002, ss 7 and 8.

5      Waipuka v R [2013] NZCA 661 at [36].

6      R v Leuta [2002] 1 NZLR 215 (CA) at [59].

7      R v Jamieson [2009] NZCA 555 at [33] citing R v Leuta, above n 6, at [56].

8      R v Jefferies-Smith [2019] NZHC 2067 at [65], citing R v Dodd [2018] NZHC 3432 and

R v Wickliffe [1987] 1 NZLR 55 (CA).

9      Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629.

10     R v Huata [2017] NZHC 704 at [15].

11     R v Leuta, above n 6.

12     R v Tai [2010] NZCA 598 at [11], citing R v Jamieson, above n 7, at [33], and R v Taueki, [2005]

[26]   I first assess your culpability by reference to, among other things, comparable manslaughter sentencings. I will then consider the matter in terms of the guideline to check on that approach.13

Considering comparable manslaughter sentences

[27]   Starting points of six to 10 years’ imprisonment have been adopted in manslaughter cases with similar features to this one. Mr Rhodes refers me to six cases he argues are analogous with starting points that range from nine to 10 years’ imprisonment.14 Ms Dyhrberg refers me to three cases which she submits are similar, where the starting points adopted were six and eight years’ imprisonment.15

[28]   You should consider yourself very fortunate that you are not being sentenced for murder, Mr D. You admitted that you knew that bashing T’s head many times with your fist would do her bodily harm. Starting points close to the top of the range are not excessive in cases “very close to murder” involving ultimately fatal violence against very young children.16 Standing back, I adopt a starting point of 10 years’ imprisonment on that “comparable cases” assessment.

Guideline approach

[29]   I now turn to the guideline approach, under which I identify the aggravating features of your offending.17 Counsel have discussed them. They are:

(a)the vulnerability of the victim;18

NZCA 174, [2005] 3 NZLR 372, endorsed in Pahau v R [2011] NZCA 147 at [96].

13 R v Tai, above n 12, at [12].

14 R v Kereopa [2016] NZHC 1664; Woodcock v R [2010] NZCA 489; R v Hapuku [2012] NZHC 1314; R v Huata, above n 10, and R v L [2020] NZHC 2911.

15 R v Roberts [2021] NZHC 16; R v Frater [2019] NZHC 3326; and R v Mitchell [2017] NZHC  1391.

16 Sami v R [2019] NZCA 340.

17 Sentencing Act 2002, ss 9 and 9A. The enactment of s 9A in 2008 emphasised  public concern about violence against children, signalling that the courts should respond by imposing penalties that reflect the seriousness of the offending: M (CA559/15) v R [2016] NZCA 53 at [32]. See also: R v Taueki, above n 12, at [31].

18 Sentencing Act 2002, s 9A(2)(a).

(b)deliberate concealment of the offending from the authorities when you were first asked about T’s death;19

(c)the serious injury caused by the offence, leading to T’s death;

(d)the gross abuse of trust in relation to the victim;

(e)attacks to the head, which is recognised as being the most vulnerable part of the body; and

(f)the fact that the offending occurred in a home environment.20

[30]   The Court of Appeal has said that band three in the Taueki guidelines would normally encompass serious offending which has three or more of the aggravating features, where the combination of aggravating features is particularly grave.21 That band encompasses starting points of nine to 14 years’ imprisonment,22 and on that analysis a starting point of 11–12 years’ imprisonment would be within scope.

[31]   Bearing in mind the approach taken in similar manslaughter cases, however, I regard the Crown’s submission of a 10-year starting point as well within the available range and I adopt it. I turn to consider personal factors.

Personal factors

Uplift for previous conviction

[32]   You were recently sentenced to three months’ imprisonment for assault on  Ms K, a person in a family relationship with you, just over a year before you assaulted

T.23  It is trite law that sentencing uplifts can be applied to recognise the greater degree

of personal deterrence deemed necessary on account of previous convictions.  It is

19 Section 9A(2)(e).

20 Violence occurring in a domestic situation is a major problem in New Zealand society and the existence of an aggravating factor does not depend on an external intrusion: Solicitor-General v Hutchison [2018] NZCA 162, [2018] 1 NZLR 420 at [27].

21 R v Taueki, above n 12, at [40].
22 At [34].

23 Police v D [2020] NZDC 24617, for offending on 7 April 2019.

important, however, that uplifts should not be imposed as a matter of course and I must avoid punishing you twice for the same offence.24 Having taken a starting point at the higher end of the available range, I do not think an uplift for a single prior offence of assault is appropriate in your case.

Youth

[33]   I accept, as does the Crown, Ms Dyhrberg’s submission that youth is a mitigating factor justifying a discount.25 Your counsel invites me to hold that a sentence weighted towards deterrence rather than rehabilitation would likely have a crushing impact on you and I accept that I should avoid a crushing sentence that sends the message you have no hope of being reintegrated into society.26 Ms Dyhrberg submits that I ought to take a “merciful” approach and account for your youth, the prospects of rehabilitation which she has referred to and your remorse by affording you an overall discount of 15 per cent for those factors.

[34]   Mr Rhodes agrees that a discount for your youth and your consequent capacity for rehabilitation is appropriate. But he makes the valid point that you were undertaking a rehabilitative course for your tendency to violence in April 2020 at the time of your offending against T, suggesting that you may not have full capacity for rehabilitation. I acknowledge, however, that there is some force in Ms Dyhrberg’s suggestions that, as still a relatively young man, those courses take some time to kick in, particularly over time as you mature.

[35]   I accept that, while it was completely abhorrent, your attack on T was impetuous and limited to one brief flurry of fatal blows, rather than the conclusion to a prolonged attack or the culmination of a string of violent episodes against her. It has the hallmarks of youthful, thoughtless offending that the courts recognise should be considered with some compassion.

[36]   I accept that you mourn for T and that you have a deep regret for the terrible harm caused by your actions. But you lied to Police about the offending when you

24     O’Connor v R [2014] NZCA 328, (2014) 27 CRNZ 302 at [41].

25     Sentencing Act 2000, s 9(2)(a).

26     Taylor v R [2018] NZCA 444 at [15].

were first questioned and you appear to want to hide behind your claimed drug abuse as explaining your conduct, rather than wholly facing up to your responsibility for it and seeking to make amends and rehabilitate yourself.

[37]   Nevertheless, the lockdown created an unprecedented environment for you of not being able to go out to work and of confinement within the home for you and your young family. That was the same for almost everybody in the country at that time. But it was not a situation, given your upbringing, with which you were well-equipped to cope, as Dr Wyness concluded. I allow a discount of 20 per cent for your youth27, for such remorse as you have shown and for your rehabilitative prospects during what will be a lengthy sentence.28 It may be considered generous but it is within the range of my discretion.

Guilty plea discount

[38]   The courts give credit for a guilty plea principally to facilitate the effective operation of the criminal justice system.29 Here, your plea has spared Ms K and the other family members from the ordeal of a trial. The benefits that a guilty plea brings to the criminal justice system, and those caught within it, supply the principal justification for the guilty plea discount.30 Your plea also signals the start of your rehabilitation through the acceptance of responsibility for your actions.

[39]   While you pleaded guilty to a charge of manslaughter, you had initially been charged with murder. I do not question the decision of the Solicitor-General to authorise the acceptance of your guilty plea to manslaughter; that may well have been a verdict reached by the jury had the case gone to trial. But, in my view, it would also have been open to a properly directed jury to find you guilty of murder through recklessness. That would have resulted in a very heavy penalty indeed, including possibly a minimum period of imprisonment of 17 years. I have regard to the Supreme Court’s guidance that the credit for a guilty plea that is given must reflect all the circumstances in which the plea is entered.31 You have received the benefit of facing

27     Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].

28 At [77]. See also: Overton v R [2011] NZCA 648 and Rolleston v R [2018] NZCA 611.

29     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45].

30     Moses v R [2020] NZCA 296 at [22].

31     Hessell v R, above n 29, at [74].

and pleading guilty to a lesser charge of manslaughter, in respect of which the Crown had a strong case, given your eventual admissions to the Police. Standing back, therefore, I regard a discount of 15 per cent for your plea as appropriate.

The end sentence

[40]   Applying a combined discount of 35 per cent for your plea, youth and the other factors to the starting point of 10 years’ imprisonment results in an end sentence of six years six months’ imprisonment.

Minimum period of imprisonment

[41]   I have given serious consideration to whether your offending is so serious that serving the normal minimum period of one-third of your sentence before you become eligible for parole would be insufficient to hold you accountable for the harm done to T and her family. Neither Ms Dyhrberg nor counsel for the Crown addressed me on that issue. Given your age, I have decided that the questions of whether and when you are sufficiently rehabilitated to justify release back into the community are best left for the Parole Board. They are difficult issues and the Parole Board is better placed to determine them at appropriate times than I am sitting here when you are about to begin your sentence. In my view, I should not delay the prospect of proper rehabilitative counselling and treatment by imposing what would be an arbitrary constraint in the name of denunciation and deterrence. Nor do I think you pose a risk to the community generally. The future risk you may pose in a family environment is something to be worked on while you serve your sentence.

Result

[42]Mr D, would you please stand.

[43]   On the charge of manslaughter, I sentence you to six years and six months’ imprisonment.

[44]You may stand down.

Toogood J