R v Karauria
[2017] NZHC 2240
•15 September 2017
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF ANY COMPLAINANTS/ PERSONS UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE
CRI-2016-087-000346
[2017] NZHC 2240
THE QUEEN v
GENE ELLEN KARAURIA AND
LENEITH CHARLES MOEKE
Hearing: [On the Papers] Counsel:
H J Sheridan and J A Heerdegen for the Crown R O Gowing for the Defendant, Karauria
G R Tomlinson for the Defendant, Moeke
Judgment:
15 September 2017
JUDGMENT OF EDWARDS J
[re Ill Treatment Particulars]
This judgment was delivered by Justice Edwards on 15 September 2017 at 4.15 pm, pursuant to
r 11.5 of the High Court Rules
R v KARAURIA and MOEKE [2017] NZHC 2240 [15 September 2017]
Registrar/Deputy Registrar Date:
Introduction
[1] On 25 August 2017, the jury in the trial of R v Moeke & Karauria found both defendants guilty of one charge of ill treatment of a vulnerable adult under s 195 of the Crimes Act 1961. The charge included numerous particulars of the ill treatment alleged. In this judgment I set out which particulars I consider to have been proved at trial so as to allow submissions to be made on the culpability of both defendants at sentencing.
The ill treatment charge
[2] The ill treatment charge was laid against both defendants as joint principals under s 195 of the Crimes Act 1961. That section provides:
195 Ill-treatment or neglect of child or vulnerable adult
(1)Every one is liable to imprisonment for a term not exceeding 10 years who, being a person described in subsection (2), intentionally engages in conduct that, or omits to discharge or perform any legal duty the omission of which, is likely to cause suffering, injury, adverse effects to health, or any mental disorder or disability to a child or vulnerable adult (the victim) if the conduct engaged in, or the omission to perform the legal duty, is a major departure from the standard of care to be expected of a reasonable person.
(2)The persons are—
(a)a person who has actual care or charge of the victim; or
(b)a person who is a staff member of any hospital, institution, or residence where the victim resides.
(3)For the purposes of this section and section 195A, a child is a person under the age of 18 years.
[3]The charge against both defendants was as follows:
LENEITH MOEKE and GENE KARAURIA between 1 October 2015 and 25 February 2016 at Whakatane being persons who had actual care of [complainant], a vulnerable adult, intentionally engaged in conduct that was likely to cause suffering to [complainant] and the conduct engaged in was a major departure from the standard of care to be expected of a reasonable person
Particulars: ill-treatment of [the complainant] including providing [the complainant] with insufficient food, making him shower outside under the hose, dousing him in cold water, restricting his use of the toilet and washing machine, taking his money, making him sleep in a shed despite room being available in the house, preventing him from obtaining medical treatment, verbally abusing him, making him stand on his head as punishment, making him sit or stand in one place for extended periods of time, making him do unreasonable/excessive household chores.
[4] The question in the question trail relating to conduct listed each of the particulars in the charge. In accordance with R v Mead, I directed that the jury did not have to be unanimous on which of the particulars constituted the ill treatment.1
[5] In order to find the defendants guilty, the jury had to be sure that the conduct was “likely to cause suffering” and that it was a “major departure from the standard of care to be expected of a reasonable person”. As I directed the jury, the latter requirement involves something more than being simply ignorant, unthinking, careless, or acting or failing to act when he or she should have. It consists of such a gross or substantial degree of negligence so as to justify making the defendant criminally responsible for what occurred. The particulars I find proved must meet that test.
[6] Furthermore, s 195 is directed towards a pattern of ill-treatment over time, and a course of conduct comprising an accumulation of wilful ill treatment or neglect.2 As explained below, I consider that to be the position in this case. Taken alone, any one of the particulars may not have been sufficient to meet the gross negligence threshold. However, when viewed together, the evidence shows a course of conduct which was likely to cause suffering, and was a major departure from the standard of care to be expected of a reasonable person.
Approach to the evidence
[7] In assessing the evidence, I am mindful of the jury’s verdicts. In addition to the ill treatment charge, Mr Moeke was found guilty of one charge of assault with intent to injure. That charge relied on the evidence of an independent eyewitness. The jury returned not guilty verdicts on the remaining 23 charges, 22 of which related to
1 R v Mead [2002] 1 NZLR 594 (CA) at [72] to [73].
2 At [106].
the vulnerable adult complainant. I infer from those verdicts that the jury must have rejected the entirety of the complainant’s evidence as lacking in credibility and reliability. I have respected that conclusion in reaching my own view of the evidence.
[8] The jury also returned a not guilty verdict on another assault charge which relied on the evidence of a teenage witness who lived with the defendants at the time of the offending. The jury must also have rejected her corroborating evidence in respect of the kidnapping charges and certain other violence charges. However, I do not consider it can be inferred from those verdicts that the entirety of her evidence was rejected by the jury. Despite the defence attempts to suggest her evidence had been tainted, I found her to be a credible and generally reliable witness.
[9] Finally, I have taken into account the nature of the complainant’s vulnerability in this case. Ms Breen, a clinical psychologist, gave evidence at trial of her assessment that the complainant had an IQ of 58 — well below the average IQ of 100. She also assessed the complainant’s adaptive skill levels (being the skills people need to live as independently as possible in the community) as being in the severe deficit range. His personal self-care skills were assessed as equivalent to those of a child aged three years, seven months.
[10] Ms Rua is the complainant’s aunt. She had taken care of him as a teenager, and arranged for him to be taken from the defendants’ care after concerns about the way he was treated. Ms Rua’s evidence was that the complainant needed prompting to go and have a shower, that he would put clean clothes on top of dirty clothes, and that he would often soil his pants. She also said that he did not look after injuries that he sustained. Clearly, the complainant’s disabilities meant that he was unable to properly care for himself.
Course of conduct
[11] I consider that the ill-treatment in this case comprised a combination of providing the complainant with insufficient food, taking his money, not allowing him to use the washing machine and shower, and verbal abuse. His poor condition at the time he left the defendants’ home shows that he did not get the requisite medical
attention for his injuries. The evidence I have relied on in reaching those conclusions is set out below.
Insufficient food
[12] The complainant gave consistent evidence about not having sufficient food, and only being provided with one meal a day. His aunt, Ms Rua, said that she noticed the complainant had lost weight when she saw him in Kopeopeo and when he came to stay with her after leaving the defendants’ home. Dr Stables gave evidence that the complainant’s hair loss could be consistent with poor nutritional status, by which he meant not having enough food, or not eating well enough.
Taking of money
[13] The complainant said that the defendants were taking his money. The defence position was that the complainant had authorised the taking of money from his account, and a signed bank authority giving Mr Moeke access to his bank account was produced in evidence. The defence case was that the complainant paid them board of
$150 per week, and that included $65 for power.
[14] I did not find the defendants’ statements to police about money to be credible. Their evidence was contradicted by the bank statements. Mr Moeke said the board and power was paid for in cash. The bank statements show that the power was paid for by way of automatic payment. Both defendants said that the amount withdrawn in cash each week was $150. The bank statements do not show a regular withdrawal in that amount. Rather, they generally show the withdrawal of most of the remaining balance left in the account after the two automatic payments were made (including the one for power).
[15] Ms Karauria’s evidence was also internally inconsistent. At one stage she said it was Mr Moeke who withdrew the money from the account; and at another stage she said it was the complainant. Her statements about the use of the complainant’s eftpos card after the complainant left also lacked credibility. Initially she said that the complainant had left the card in his room. Then she said she found it under the couch, and that she threw it away because she did not have contact details for him. However,
when subsequently asked about whether she had tried to use the card after the complainant had left, she confirmed that they (or at least Mr Moeke) had tried to use it a few days afterwards, and then thrown it away because “there was no money in it”. Contrary to Ms Karauria’s evidence, the card was not thrown away at all, but found inside a wallet at the house, together with other cards belonging to the defendants.
[16] I consider the key reason the defendants kept the complainant in their care is so they could keep accessing his bank account and take his money. This left him without any independent financial means, and, when taken together with the other conduct, contributed to his overall suffering.
Verbal abuse
[17] The evidence of the teenage witness at the house, and Ms Whakamoe, was that both defendants would frequently yell and swear at the complainant. Ms Karauria said in her police statement that Mr Moeke yelled at the complainant. Mr Feilo described seeing Mr Moeke “face to face” with the complainant, and yelling at him during the incident which lead to a guilty verdict on the assault with intent to injure charge.
Not allowing him to use the washing machine and shower
[18] When the complainant first moved in with the defendants, he was shown how to use the washing machine, and was allowed to use the shower. However, in the period the subject of the charge, the complainant says he was not allowed to use the washing machine or shower, and had to use the hose outside to clean himself and his clothes.
[19] The complainant’s evidence is corroborated by the evidence of the teenage witness who lived at the house throughout this time. That evidence is further corroborated by the poor condition of the complainant at the time he left the defendants’ house, as evidenced by the photographs of him at the time, the medical evidence, and Ms Rua’s evidence referred to below.
Lack of medical attention
[20] It was clear from the photographic evidence of the complainant immediately after he had left the defendants’ house that he did not get the medical care that he required. His body was covered in scars, and partially healed wounds. Dr Stables’ evidence was that the complainant’s scars and wounds had just been left to heal without the necessary medical treatment.
[21] Ms Rua’s evidence about the complainant’s condition when she saw him in Kopeopeo in early 2016 was compelling. She described him looking as if he had been burnt, his face ashen, his hands thin like he had lost a lot of weight, and as being frightened and shaking like a leaf. When asked to describe his face she said it was “a little bit like Darth Vader, dark”. The fact that she burst into tears on seeing him gives some indication of the extent of his deterioration.
Timetabling orders
[22] The sentencing of both defendants is set down for Friday, 6 October 2017. I make the following timetabling orders for the filing and service of submissions:
(a)The Crown shall file and serve submissions by 4.00 pm, Monday, 25 September 2017.
(b)The defendants shall file and serve submissions by 4.00 pm, Monday, 2 October 2017.
Edwards J
Solicitors: Hollister-Jones Lellman, Tauranga
Gowing and Co Ltd, Whakatane
0
0
0