R v Kereopa

[2016] NZHC 1664

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-091-1709 [2016] NZHC 1664

THE QUEEN

v

MICHAEL TE KOUAREHU KEREOPA

Hearing:	15 June 2016
Counsel:	S C Carter for Crown B J Hesketh and R M Adams for Defendant
Judgment:	21 July 2016

SENTENCING NOTES OF ELLIS J

[1]      Mr  Kereopa  you  appear  for  sentence  today  for  the  manslaughter  of Gracie-May McSorley.   Gracie was six months old and was left in your care for approximately 45 minutes on 6 July 2015.   She died as a result of injuries she received during that brief time.

[2]      You pleaded guilty to Gracie’s manslaughter after the charge was reduced by the Crown from murder on 15 June 2016. The maximum penalty for manslaughter is life imprisonment which reflects just how seriously the law views the killing of another person, even if death was not intended or foreseen.

[3]      But the law also recognises that all manslaughter cases are not the same, and so the facts of each case play an important role in deciding the appropriate sentence.

That is why I need to begin by talking about what happened on 6 July 2015.

R v KEREOPA [2016] NZHC 1664 [21 July 2016]

The facts

[4]      For about eight weeks before Gracie died you were in a relationship with her mother, Charlotte.   In fact you moved in with Charlotte, who was living with her mother, sister and two infant daughters.

[5]      Both Gracie and her older sister were much loved and well cared for children. On the afternoon in question Charlotte had to go out briefly to pick up Gracie’s sister.   Before she left she put Gracie down for her afternoon sleep. Gracie was a little unsettled.  Charlotte told you that Gracie was a bit grizzly but said not to pick her up and let her get to sleep.

[6]      When Charlotte returned three quarters of an hour later she went into the bedroom.  You were sitting on the side of the bed and Gracie was in her cot nearby, lying on her tummy.  You told Charlotte that she had started breathing funny and had vomited. You showed her the vomit on a tea towel which you had held the baby over while she was being sick.  You did not tell Charlotte at that time that Gracie’s body had been limp and her eyes had been rolling around in her head.

[7]      Charlotte checked the baby.  She was a bit pale and she did not seem to have a temperature, so her mother decided to let her sleep.  Less than an hour later she checked Gracie again and noticed that her breathing was not normal.   When she rolled Gracie over she noticed that she had puffy eyes and lips.  Charlotte picked her up and took her into the kitchen where she was then able to see bruising inside and behind Gracie’s right ear. As she held her, Gracie started convulsing. When the little girl was put on a bed she was floppy and non-responsive and would not open her eyes. An ambulance was called and Charlotte performed CPR on her daughter while waiting for them to arrive.  Gracie was later transported to Wellington hospital by helicopter.

[8]      Gracie was treated by specialists at the hospital and underwent surgery but they were unable to relieve the pressure on her brain.  Her injuries were found to be non-survivable.  She remained on life support until it was withdrawn on the evening of the following day, when Gracie died.

[9]      It is not in dispute that in the moments before her injury you were attempting to care for Gracie and picked her up out of her cot in order to try and settle her.  It seems, though, that she would not settle and you then suffered a momentary but, as Mr Hesketh said, cataclysmic loss of control.  But what exactly it was that you then did to Gracie remains unknown because the medical evidence is that none of your later accounts of what happened is consistent with her injuries.   In particular, the medical experts were unanimous that her injuries were most unlikely to have been caused either by you dropping her from shoulder height or from shaking her.

[10]     The consultant neurosurgeon who operated on Gracie said that the kind of injury she suffered is like that which is seen after a high speed vehicle collision or as a result of a severe blunt force trauma to the right side of her head.

Victim impact statements

[11]     Before turning to talk about your sentence I need to say something about Gracie’s family and the effect that what you have done has had on them.  None of them felt able to read out their victim impact statements today and that is of course completely understandable.  I have no doubt that it is not possible to express their grief adequately in words anyway.  But I have read their statements carefully.  They speak about how the events on 6 July have changed their lives from lives of joy to lives of devastation.   Charlotte’s mother describes Charlotte as now being just a “shell” and the effect that Gracie’s death has had on her older sister.   Charlotte herself speaks about how she has been deprived of all the happy, wonderful milestones that she should have shared with Gracie in the years to come.  But as I have said, words cannot describe what the family has gone through and what each of its members will continue to suffer forever as a result of Gracie’s death.

Setting the starting point

[12]     I turn now to the sentencing process itself.  The first stage in that process is to set a starting point, based on the overall seriousness of what you did.

[13]     I  say  at  the  outset  that  it  is  heartbreaking  and  awful  to  have  to  make comparisons for sentencing purposes with other cases involving the deaths of babies

and little children.  Making such comparisons runs the risk that Gracie’s family or members of the public might think that the sentencing judge somehow thinks that her life is worth less than the lives of those other children.   It is not.   Every child is precious.  Every child deserves a future.  No baby or child should ever, ever, have that future taken away by an act of violence.

[14]     But I am sure it will also be understood that justice and the law require that sentencing distinctions be drawn between unspeakably dreadful cases such as those of Moko Rangitoheriri or Delcelia Witika where a child has died after months of extreme cruelty and sustained abuse, and ones like this involving a single uncontrolled act of violence, a moment of brutal and profound stupidity that has had the most terrible of consequences.  And it must also be borne in mind that you are being sentenced today for manslaughter, not murder.   The decision to reduce the charge was taken elsewhere and the circumstances giving rise to it are not before me. That decision can play no part in the sentencing process today.

[15]     In  your  case,  Mr  Kereopa  there  is  not  much  disagreement  between  the lawyers about what the aggravating features of what you did are.   There is the extreme vulnerability and defencelessness of a six month old baby.  The severe and fatal blow to her head.   The breach of trust involved in what you did – you were supposed to be looking after her and keeping her safe from harm. And lastly there is your failure to call for medical help when she vomited after you hit her and, later on, your failure to tell Charlotte what had happened, leading to further delays in treatment.

[16]     Not only are there these separate aggravating features but the combination of them is also particularly grave.  And the medical evidence seems clear that this was not a case of simple shaking, where (perhaps) it could be said that it is less obvious that death would result.  You must have punched or hit Gracie’s head or hit her head against something hard.  She had been left in your charge only for the shortest period of time.  You knew her mother would be back soon.  You have experience of caring for your own children whom I know you love very much.  It is difficult to see how having briefly to deal with a grizzly baby somehow pushed you beyond reason or

endurance.  While I accept that you lashed out and then panicked, in my view there are no mitigating features of your offending.

[17]     Although the maximum penalty for manslaughter is life imprisonment, her Honour Justice Katz has recently noted when sentencing Moko’s killers, that there is no  New  Zealand  case  where  life  imprisonment  has  been  imposed  for  the manslaughter of a child.1    And although her Honour took life imprisonment as the starting point in that case the end sentences were 17 years’ imprisonment.  But as I have said the truly dreadful facts with which she was confronted were very different

from the present case and no one has suggested that a sentence at anywhere near that level is appropriate here.

[18]     Accordingly, and after taking into account the aggravating features I have already referred to, the cases to which counsel have referred me that have facts more comparable to your own, and the enactment in 2008 of s 9A of the Sentencing Act

2002, I consider that the appropriate starting point in your case, Mr Kereopa, is

10 years imprisonment.2

Personal circumstances

[19]   I then need to consider whether there is anything about your personal circumstances which mean that that starting point should be adjusted upwards or downwards.

[20]     I have read your pre-sentence report and the letters of support from your mother and your friend.  You are 32 years old.  You have two relatively low level previous domestic violence convictions against your former partner, the mother of your two children.  It seems that as a child you may have had undiagnosed ADHD which made school difficult, although you stuck at it.   It is suggested that your ADHD may have played some part in the events of 6 July 2015 but there is no

medical evidence before me about that.  Your friend and former employer is glowing

1      R v Shailer [2016] NZHC 1414.

2      R v Waterhouse (2004) 20 CRNZ 897 (CA); Woodcock v R [2010] NZCA 489; R v Hapuku [2012] NZHC 1314; R v Broadhurst [2008] NZCA 454.. As to the relevance of s 9A see the discussion in R v Shailer at [47].

in her praise of your work ethic.  Both she and your mother speak of your love and care for your own two children.

[21]     You have said to the report writer that you loved Gracie as if she were your own and that you would do anything to turn back time. You have said the same thing in a letter to Gracie’s father that I have received today.  I tend to believe that.  But on the other hand there is the difficulty that none of your accounts of what happened on that dreadful day seem to tally with Gracie’s injury, so it difficult to conclude that you have squarely confronted what it is that you did.  I tend to agree with Ms Carter that there seems still to be some minimisation going on.

[22]     The most significant thing in your favour is, of course, your guilty plea which has saved Gracie’s family the great distress and trauma of a trial.  I know that that saving is truly meaningful in this case.  And of course you have also saved the State the cost of a trial as well.

[23]     In the end I consider that the appropriate discount for your guilty plea and other personal factors is 20 per cent.  That would give an end sentence of eight years. No minimum period of imprisonment has been sought or will be imposed.

[24]     So Mr Kereopa if you could stand now please.

[25]     For the manslaughter of Gracie-May McSorley I sentence you to eight years imprisonment.

[26]     Please stand down.

“Rebecca Ellis J”