R v Kinraid - [2017] NZHC 233

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2015-443-978 [2017] NZHC 233

THE QUEEN

v

PHILIP MURRAY KINRAID

Hearing: 22 February 2017

Counsel:

J Marinovich for Crown
P M Keegan and J M Woodcock for Defendant

Sentence:

22 February 2017

SENTENCE OF ELLIS J

[1] Philip Kinraid you appear for sentence today for the manslaughter of your two year old daughter Esmé. Esmé died on 26 June 2015. She suffocated while you were holding her face down on her pillow in an attempt to settle her, when she was resisting going to bed.

[2] You pleaded guilty to the manslaughter charge on 23 November 2016.

[3] 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.

[4] 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 26 June 2015.

R v KINRAID [2017] NZHC 233 [22 February 2017]

Facts

[5] Between 7 and 7.30 pm that evening you put your two children to bed in the room they shared. Shortly afterwards Esmé became upset and began to cry. Attempts were made to quieten her. She was told by her mother that unless she settled she would have to sleep in the spare bedroom and shortly afterwards you took her in there and closed the door.

[6] You later told Police that you wrapped Esmé in a blanket that was on the bed but she kicked it off and tried to jump off the bed. You then re-wrapped Esmé in the blanket and placed her face down on a pillow at the head of the bed. You said that she was still attempting to get up so you put her bottom under your right armpit and placed your right hand on the back of her head.

[7] You said that you held Esmé down with the minimum amount of force to stop her getting up again. You said she was squirming, making noises, inhaling and exhaling while she screamed. You said you “monitored” her breathing and the noises she was making and held her in that face down position for five to ten minutes, after which you said she settled, letting out a shuddering breath. You said that at that point Esmé appeared to be breathing normally and you adjusted her head so that her face was pointing sideways to the right instead of into the pillow. You said you thought she was fine, got off the bed, left the room and shut the door.

[8] Your partner later reported that you appeared relaxed and calm on your return. You told her that Esmé was sleeping on her front, but that she was ok.

[9] A bit later in the evening you were called into work.…

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 Kinraid

Details

AGLC: R v Kinraid [2017] NZHC 233
Case: [2017] NZHC 233
Decision Date: 22 February 2017

CaseChat Overview and Summary

The defendant, Philip Murray Kinraid, appeared before the High Court of New Zealand for sentencing following a guilty plea to the manslaughter of his two-year-old daughter, Esmé. Esmé died on June 26, 2015, after suffocating when Kinraid held her face down on her pillow to settle her. The maximum penalty for manslaughter is life imprisonment, but the court recognises that all manslaughter cases are different, and the facts of each case play an important role in deciding the appropriate sentence.

The court considered the aggravating factors of the case, including Esmé's vulnerability and defencelessness, the breach of trust involved in a father killing his daughter, the nature of the act, and the irredeemable harm caused to Esmé and her family. The court found that the case was more analogous to cases involving the deliberate shaking of a baby than to cases where a baby has died as a result of accidental omission. The court determined a starting point of six and a half years' imprisonment was warranted. The court also considered personal factors in mitigation, including Kinraid's cooperation with police, good character, and remorse. The court gave a discount of 10 months for cooperation, good character, and remorse, and a further 25 per cent discount for the guilty plea, resulting in a sentence of four years and three months imprisonment.

The court sentenced Kinraid to four years and three months imprisonment for the manslaughter of his daughter, Esmé. Home detention was not an option. The court acknowledged the devastating impact of Esmé's death on her family and the profound grief and trauma they have experienced. The court emphasised that every child deserves a future and that no baby or child should ever have their future taken away by an act of violence.

Orders