R v L - [2017] NZHC 2934

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

NOTE: PUBLICATION OF NAME, ADDRESS, OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2016-090-2117 [2017] NZHC 2934

THE QUEEN

v

L

Hearing: 28 November 2017

Appearances:

M R Harborow and M J Hammer for Crown
S J Gray for Defendant

Sentence:

28 November 2017

SENTENCING REMARKS OF PETERS J

Solicitors: Meredith Connell, Crown Solicitor, Auckland

Counsel: S J Gray, Auckland

R v L [2017] NZHC 2934 [28 November 2017]

[1] L, you are for sentence on six charges of ill-treating a child.1 You were convicted of this offending on 29 September 2017, after a three-week jury trial at which I presided. The jury also acquitted you on two charges and I had earlier discharged you on a third.

[2] The maximum penalty for each offence is 10 years’ imprisonment, an increase on the maximum penalty of five years that prevailed until early 2012. That increase shows society’s utter intolerance of offending by a caregiver against a child who is inevitably vulnerable and defenceless.

Offences

[3] I must address the circumstances of your offending and I shall do that now. You committed three offences against your child, A, and three against your younger child, B.

[4] You committed five of the offences between March 2012 and October 2015, so over a three and a half year period. The sixth was committed nine months later, in July 2016, when you were in different circumstances which I shall explain shortly.

Charges against A

[5] You committed the first offence against A between 2012 and 2015, A being younger than five throughout. Prior to the time the offending started in 2012, A had been admitted to hospital for a genuine and serious illness. That illness was treated and cured after about six weeks in hospital.

[6] During the three-year period covered by charge 1, you took A to doctors, hospitals and A&E departments on more than 80 occasions. You reported that A had rashes and fevers and, later, that she was having seizures. A may have had the occasional rash or high temperature but, as a general rule, she was not suffering from any of these ailments.

[7] Your reporting of those symptoms led to two things.

1 Crimes Act 1961, s 195.

[8] First, it led to A being prescribed medication – Colchicine, to prevent fevers and swelling; Levetiracetam and Lamotrigine, which are treatments for seizures; and Midazolam – a sedative. It was extremely dangerous for A to take this medication because she did not need it.

[9] Secondly, your reporting of these symptoms led to A having major and invasive procedures that she did not require. The procedures to which A was subjected included blood tests, four EEGs, one…

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 L

Details

AGLC: R v L [2017] NZHC 2934
Case: [2017] NZHC 2934
Decision Date: 28 November 2017

CaseChat Overview and Summary

L was convicted of six charges of ill-treating a child, with five charges relating to the victim A and one to the victim B. The court was required to determine an appropriate sentence for the defendant, considering the unique nature of the crimes, which involved the defendant inducing or feigning illness in the children to elicit medical attention. The court had to balance the severity of the crimes with the defendant's mental health condition, Factitious Disorder Imposed on Another, also known as Munchausen Syndrome by Proxy, which was causative of the offending. The court also had to determine the extent to which this mental health condition should mitigate the sentence, both in terms of the starting point and as a personal matter.

The court began by identifying separate starting points for the offending against each child, due to the different nature of the crimes. For the offending against A, the court adopted a starting point of four years, with additional uplifts for the other charges against A, resulting in a total of six years. For the offending against B, the court adopted a starting point of four years for the most serious charge, with uplifts for the other charges against B, resulting in a total of six years, nine months. The court then considered the defendant's mental health condition, agreeing with the defence that it was causative of the offending and reduced the defendant's culpability. The court decided on a 30% reduction to the overall starting point, considering the defendant's lack of insight and coping skills. The court rejected further reductions proposed by the defence for the distress caused by separation from the children and potential psychological damage to the children. The court also decided against imposing a minimum period of imprisonment, as it was not necessary for holding the defendant accountable, deterrence, denunciation or protecting the community.

Ultimately, the court sentenced the defendant to a total of seven years and one month in prison, with the sentences for the various charges to be served concurrently.

Orders