R v L
[2017] NZHC 2934
•28 November 2017
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 DefendantSentence:
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 ECG, two lumbar punctures under anaesthetic, with a third attempt having to be abandoned as A was so distressed, and at least two MRI scans. A was also admitted to hospital on several occasions for overnight stays including 12 days in Starship and another week at Waitakere.
[10] Dr Kelly’s evidence was that the numerous presentations and procedures to which A was subjected ran the risk of institutionalising A and of engendering within her a sense that she was unwell, when she was not.
[11] Since being placed in CYFS’ care, as it then was, A has had the occasional visit to the doctor that any young child requires from time to time but nothing more serious than that.
[12] The second offence was that you overdosed A on Lamotrigine, that is you gave her more than the prescribed dose. This offending is alleged to have occurred between January 2014 and March 2015. The doctors prescribed Lamotrigine for A on your reports of seizures of increasing severity – all non-existent.
[13] Dr Kelly described Lamotrigine as a mind-altering, anti-convulsant medication. For that reason, it is often prescribed for and beneficial to someone who has epilepsy and for that same reason it is not to be given to someone who does not need it. Taking it, or taking too much of it, causes ataxia so that the child, in this case, loses control of their limbs, cannot stand up, is wobbly, sleepy and generally unwell.
[14] A never suffered from seizures and was never an epileptic, as you knew. She did not require Lamotrigine at all, let alone more than she was prescribed. This offence was charged as a representative charge on the Crown case that the overdosing occurred
more than once. In fact, the Crown submits that you overdosed A on at least four occasions, to induce the symptoms to which I have just referred. I accept that submission.
[15] On two of the four occasions, you did so to ensure that A was in an ataxic state at an appointment, first with a specialist in April 2014 and again at the beginning of an especially arranged week in hospital for observation in May 2014.
[16] The other two occasions on which the overdosing is proved are apparent from video recordings of A discovered on your cellphone. The first of these video recordings was taken in March 2014 and the second in September 2014. As the Crown says, those videos were disturbing to watch because A was plainly distressed by her condition. To compound matters, by September 2014, you had been told to destroy the Lamotrigine and you plainly had not done so.
[17] Charge 5 related to a specific incident in August 2015 and was that you caused A to take Midazolam. Midazolam is a powerful, Valium-like sedative, with unpredictable side effects and is used to stop a severe seizure. It was given to you administer if that occurred. It was for emergency use only. You gave it to A for no good reason. She did not require this medication. The recording of 111 call you made to summons an ambulance was played to the jury. You sounded cheerful and jovial, saying to the operator on several occasions that A was acting as if she was “drunk”. You did not sound panicked or anxious.
Charges against B
[18] Turning now to the charges that relate to B, the first two were committed on
1 October 2015, one shortly after midnight and the other just after 7 pm. B was eight months old at the time. We know you suffocated him twice that day because you took videos of B “coming to” afterwards. You say you took the videos to provide evidence to the doctors of breathing difficulties that B was having and because you struggled to explain to the doctors what was occurring and were not taken seriously when you tried to do so. I do not believe B was having any difficulty with his breathing.
[19] The suffocation at approximately 7 pm was the most serious and you called an ambulance. The paramedics who arrived found B “blue”, indicating that he had been deprived of oxygen. The paramedics believed that B had suffered a “life-threatening” event.
[20] B was admitted to Starship. The doctors at Starship became suspicious of you after that, because they were unable to find a cause for the event that B had undoubtedly suffered. Nor did the event recur while he was at Starship.
[21] That led the medical personnel to conclude that the life-threatening event that B had suffered had been caused by something else, in fact by you. Starship alerted CYFS, who took the children into care immediately. Having taken the children into care, CYFS placed A with your mother and B with his father.
[22] Subsequent police investigations, searches and enquiries led to you being charged with several of the offences of which you have now been convicted. The searches provided evidence of the two incidents of the overdosing of A on Lamotrigine in March and September 2014 and the suffocation of B committed shortly after midnight on 1 October 2015.
[23] You committed the final offence nine months later, in July 2016. You were on bail at the time and had supervised access to your children for up to an hour several times a week. B’s father had brought B to your mother’s house so that you could see him and vice versa. On this particular occasion you either fed B, or put within B’s reach, a round “button” battery of the sort that goes in scales or remote controls. B swallowed it.
[24] You then told your mother and B’s father that you had seen something shiny in B’s mouth. They looked but found nothing. Realising how dangerous this was to B, over the next 12 to 18 hours you absolutely insisted that B was to be taken for an x-ray. This was done and the battery was identified in a location which suggested that it would eventually come out the other end, which it did.
[25] Dr Kelly’s evidence was that the main risk that arises from swallowing a button battery is that it can become stuck and burn a hole in the oesophagus or throat within two to two and half hours. It was a matter of good fortune that B was spared serious and permanent harm.
[26] All access to your children ceased after that event, as you plainly could not be trusted even when you were supervised.
[27] At trial, you defended the first charge – the frequent and prolonged reporting of fictitious symptoms – on the basis that you were an overly anxious parent, scared by the serious illness that A had in fact suffered and to which I have already referred. You also claimed that the doctors had translated your words into their medical terms and that it was they who asked for the follow up visits and appointments and prescribed the medications. On the first point, many of the doctors and medical staff recalled your unusual familiarity with medical terms, suggesting that you had actually researched the information. And the doctors may have arranged follow ups and procedures, but that was only in response to the symptoms you reported. That was in respect of charge 1. The other offences you simply denied.
[28] Clearly, the jury rejected your evidence on the offences they found proved. Those jury verdicts can only be explained on the basis that you lied to the doctors as regards charge 1 and that you did commit the acts on which the remaining five charges were based.
[29] You were on bail up to and including the trial. Subject to the July 2016 offence, you complied with your bail conditions to the letter. You turned up to Court on time, every time. You were co-operative and compliant whilst under great personal stress.
[30] I have read the victim impact statement written by B’s father. It took a long time for him to accept that the police account of your actions could possibly be true and even now he cannot comprehend it. At some time he will have to explain to B what transpired and why your relationship with B has ended. My impression of B’s father when he gave evidence was that he was a gentle and kind person who will take great care of B.
[31] A and your mother are also victims. I am informed by your mother, and accept, that A misses you terribly and asks for you constantly. By your actions, you have also put your mother in a position of either taking on A’s day-to-day care or entrusting A to some third-party caregiver. I have no doubt whatsoever that your mother has been placed in a stressful and difficult position by your actions.
[32] At the end of the trial I ordered a pre-sentence report from the Department of Corrections. It is apparent from that report that you continue to deny the offending. You have no prior criminal convictions and Corrections consider you pose a low risk of re-offending, subject to restricting your contact with children.
[33] Also at the end of the trial, and at your lawyer’s request, I asked a health professional to prepare a report to assist me in sentencing you.
[34] Dr Duff, an experienced consultant psychiatrist, has written a 25 page report, having conducted a thorough investigation, including a lengthy discussion with you and she again records your denial of the offending. Despite that, Dr Duff has diagnosed that at the time of this offending you suffered from Factitious Disorder Imposed Upon Another. Members of the community may know something of that disorder by the now outdated name Munchausen Syndrome By Proxy. A person suffering from Factitious Disorder is prone to feign or induce illness in another and will present that individual as ill, impaired or injured. The disorder is believed to be rare and Dr Duff says that it is difficult to diagnose.
[35] Of course, Dr Duff is an expert in this field but her diagnosis will not be a surprise to anyone who heard and saw the evidence at the trial, including your evidence. I do not consider you would have offended in this way if you were not unwell. My impression of you is that any other form of criminal offending would be totally alien to you.
[36] I conclude these preliminary remarks by saying that what has occurred is a tragedy for you, for your children and for your family. You were a good parent in many respects. Your children were well looked after in the material sense. In the photos I have seen they were well dressed, happy, cheerful little children. The
offending has come at what would otherwise have been an exciting time for you and for them, as they grew up and went to school.
Sentencing
[37] I turn now to consider the sentence to be imposed on you.
[38] In determining your sentence, I remind myself that I must promote in you a sense of responsibility for your actions; deter you from doing the same again, if you were ever to have the opportunity; and assist in your rehabilitation and reintegration to the extent that I can. A sentencing judge is often also required to impose a sentence which has the effect of denouncing an offender’s conduct and which the judge hopes will deter others from similar behaviour. As I shall explain, I do not consider that either purpose needs to be met on this occasion because your offending is so far from the norm.
[39] I must also bear in mind that the ill-treatment of a child is serious criminal offending, as indicated by its 10-year maximum penalty. In terms of offences to the person, that penalty places this offending on a par with injuring with intent to cause grievous bodily harm. I must also impose the least restrictive outcome appropriate and take into account any particular circumstances that would make an otherwise appropriate sentence disproportionately severe for you. I must also have regard to the general desirability of consistency with appropriate sentencing levels applied to other offenders committing similar offences in similar circumstances. It is fair to say that there is limited assistance to be had from other cases because your offending is so unusual.
[40] In arriving at your sentence, I shall adopt a two-stage process.
[41] The first stage is to identify the sentence that reflects the culpability or blameworthiness in your offending, excluding matters personal to you. This is referred to as the “starting point”.
[42] The second stage is to increase or reduce the sentence from the starting point for matters personal to you.
Starting point
[43] Turning to the first stage, counsel and I agree on several matters.
[44] First, we agree that I should identify separate starting points for your offending against A and for your offending against B. That is because the offending against the two is different in kind.
[45] Secondly, we agree that I shall need to adjust the starting point so that it is not wholly out of proportion to the gravity of the offending.2 Counsel would adjust the overall combined starting point. I prefer to make the adjustment in respect of your offending against each child but it makes little difference ultimately.
[46] Thirdly, because the offending is atypical we agree that only modest assistance is to be gained from sentences imposed in other cases. Your offending was committed under s 195 of the Crimes Act. That makes it an offence for a caregiver to engage in conduct, intentionally, that is likely to cause suffering to a child and which is a major departure from the conduct expected of a reasonable person.
[47] To date, others sentenced for this same offence – different conduct, same offence – have been guilty of engaging in direct physical violence against their child or have neglected an obvious need for medical treatment.3 Since 2012, when the maximum penalty increased, the Court has adopted starting points for this offending ranging from two years, six months’ imprisonment to six years’ imprisonment. As I say, although the nature of your offending is different, the cases do have some relevance because they indicate whereabouts on the continuum of up to 10 years the Court has treated other very serious offending.
[48] For instance, in P (CA866/2013) v R the Court adopted a starting point of three years, six months for a caregiver who neglected an obvious and painful injury to a
three-year old’s leg for 10 days, that neglect causing a lifelong disability.4 In
2 Sentencing Act 2002, s 85.
3 Adams v Police [2014] NZHC 42; P (CA866/2013) v R [2014] NZCA 211; and M (CA559/2015)
v R [2016] NZCA 53.
4 P (CA866/2013) v R, above n 3.
M (CA559/2015) v R, the Court adopted a starting point of six years for failing to obtain medical assistance for infants who had suffered non-accidental injury including brain injury and fractures to the skull, arms, legs, ribs and collarbone.5
[49] Fourthly, counsel and I agree that an allowance must be made for the effects of your mental ill-health.6
Starting point for offending against A
[50] I turn now to the starting point for your offending against A.
[51] This offending constituted a gross breach of trust.7 A vulnerable and defenceless child must be able to rely on their parent above anyone else to love and care for them.
[52] Secondly, your offending had the potential to occasion physical harm to A and I expect that she will suffer psychological harm as a result of her abrupt and unexplained separation from you.
[53] Charges 1 and 2 were cruel, given the number of procedures A was required to have and because of the effects of ataxia. All of these events would have been very frightening for her.
[54] These offences were premeditated. Insofar as concerns charge 1, you reported symptoms of increasing severity to medical personnel when you considered that they thought A had stabilised or no longer required treatment. This usually led to another appointment or another investigation or, worse, an increased dose of medication. The offending in charge 2 was also premeditated, and was committed when it suited your
purposes.
5 M (CA559/2015) v R, above n 3.
6 Shailer v R [2017] NZCA 38, [2017] 2 NZLR 269 at [44] and [45].
7 Sentencing Act, ss 9(1) and 9A.
[55] Crown counsel submits that, of the offending against A, charges 1 and 2 are the most serious and require a starting point of six to seven years with an uplift of six months for charge 5.
[56] Ms Gray proposes a starting point of three to three and a half years for charge 1 and a combined uplift of one year for charges 2 and 5.
[57] I consider that charge 1 is the most serious for the reasons I have given.
[58] One case to which the Crown referred me, R v Herewini, is of some assistance.8
In that case, the offender was for sentence for manslaughter. Ms Herewini, intoxicated, had given her nine-year old child Methadone, Zopiclone and Codeine. The child died overnight. The Court adopted a starting point of six and a half years.
[59] Despite the death of the child in that case, the Crown submits your offending was worse because it was calculated and sustained. I do not accept that submission. The fact the child died makes it significantly worse. But the nature of the offending bears some limited similarity because it involved the administration of dangerous medication.
[60] Taking into account that starting point, and the range of sentences imposed to date under s 195 – for different but also harmful conduct – I consider a starting point of four years’ imprisonment is required in respect of charge 1.
[61] I propose to uplift the starting point by a further 18 months for charge 2, given the aggravating factors that arise in respect of that offending, and by six months for charge 5.
[62] These starting points combine to six years’ imprisonment in respect of the offending against A. I consider such a period of imprisonment wholly out of proportion to the gravity of the offending against A.9 Subject to the deduction I propose to make for your mental health, I would sentence you to five years’
imprisonment on charge 1, with concurrent sentences of 18 months and six months respectively for charges 2 and 5.
Starting point for offending against B
[63] The aggravating features of your offending against A apply equally to your offending against B, but the offending is worse in the sense it was life-threatening.
[64] The Crown submits that I should adopt a starting point of eight to nine years’ imprisonment in respect of charges 7 and 8 with an uplift of 18 months for charge 9. Ms Gray submits that I should adopt a starting point of two to three years in respect of charges 7 and 8, with an uplift of six months for charge 9.
[65] Charge 8, the second suffocation incident, is the most serious offence against B. That offending was premeditated and life-threatening. Dr Kelly said when he viewed the video you took that B looked dead, completely blue and motionless.
[66] In so far as concerns any comparable cases, in R v Kinraid, the offender was for sentence on a charge of manslaughter.10 He suffocated his young daughter by holding her face down into a pillow. The Court adopted a starting point of six and a half years’ imprisonment. Again, the obvious difference is that Mr Kinraid’s actions caused death. Yours did not.
[67] Counsel have also referred me to R v Wright.11 Ms Wright, 18 or 19 at the time, killed her eight-month old son by smothering him with a blanket. She admitted to having smothered him on some 10 previous occasions. She also admitted to having given him crushed up Diazepam pills. The Court adopted a starting point of 10 years’ imprisonment. As it happens, Ms Wright suffered the same factitious disorder that Dr Duff has diagnosed in your case. The allowance the Court of Appeal made to take account of this is something I shall discuss shortly.
[68] Lastly, in R v Broadbent an 18-year-old mother was sentenced for obstructing her baby’s airway and it was apparent this had happened on at least two occasions,
causing the baby to turn blue as a result of oxygen deprivation.12 The Judge essentially took a starting point of three and a half to four years’ imprisonment but reduced it to three years, acknowledging that Ms Broadbent’s culpability was diminished by depression, and a belief on the part of the experts that she was suffering from the same factitious disorder that has been diagnosed for you. As Mr Harborow submitted, that three and a half to four year starting point was adopted in respect of a maximum penalty of seven years. I bear that in mind.
[69] Given the starting points adopted in those three cases and all the other matters to which I have referred, I adopt a starting point of four years’ imprisonment for charge
8. Your actions were dangerous but fortunately B survived.
[70] I consider an uplift of 18 months is required in respect of charge 7. That offending was not life-threatening to the same extent. As the Crown has said, it appears to have been something of a “trial run” for charge 8.
[71] Charge 9 also was premeditated. You must have taken the battery to your mother’s house and waited for an opportunity to give it to B or to put it within his reach. I propose to uplift for this offending by 15 months, three months of which is attributable to the fact that it was offending committed on bail.
[72] These starting points in respect of the offending against B combine to six years, nine months’ imprisonment. I consider this period of imprisonment also wholly out of proportion to the gravity of the offending against B.
[73] Again, subject to the deduction I propose to make on account of your mental health, I would sentence you to five years, three months’ imprisonment on charge 8, with concurrent sentences of 18 months and 15 months respectively for charges 7 and
9.
12 R v Broadbent [2013] NZHC 859.
Overall starting point
[74] That gives an overall starting point for your offending against A and B of
10 years, three months’ imprisonment.
Mental health
[75] I turn now to consider the extent to which the disorder from which you were suffering is relevant to sentencing, whether as regards the starting point or as a mitigating fact matter personal to you, or both.
[76] A mental disorder that is causative of offending may affect the appropriate starting point because it lessens the offender’s culpability, or it reduces the need for a sentence encompassing elements of deterrence and denunciation.13
[77] Counsel and I agree that the disorder was causative of your offending and that it reduces your culpability. It also lessens the need, as I have said, for general deterrence and denunciation.
[78] For you, Ms Gray initially proposed a reduction of 20 per cent, although today she has sought more than that. The Crown would not object to 20 per cent but submits that no more than that can be justified.
[79] Counsel and I are also agreed that an offender’s mental health may also be relevant to the second stage of the sentencing exercise in which the Court takes into account factors that are personal to the offender. For instance, the Court is required to treat as a mitigating factor any circumstances that mean an otherwise appropriate and fair sentence would be disproportionately severe.14
[80] Dr Duff ’s report indicates that a lengthy custodial sentence for you would be disproportionately severe. Her professional opinion is that your conviction and incarceration are inconsistent with your internal view of yourself and that you lack
insight into yourself and your actions. I also accept her comments to the effect that
13 Sentencing Act, s 8(a); and Shailer v R, above n 6.
14 Sentencing Act, s 8(h).
you find your present situation and incarceration hugely stressful and that you lack the personal coping skills that you really need to see you through.
[81] As to the level of discount that might be warranted, I have already referred to R v Wright, in which Ms Wright was found to be suffering from the same factitious disorder. In that case, the Court of Appeal held that the 15 per cent discount given in the High Court for Ms Wright’s illness was inadequate and that 30 per cent was required.
[82] At least as great an allowance was made in Tegg v Police. Ms Tegg, suffering from the same disorder, was charged with administering a noxious substance – the cleaning product Jif – to her child who was 10 months’ old.15 On appeal, the High Court reduced her sentence from eight months to three months’ imprisonment.
[83] Having taken into account counsel’s submissions and these authorities, I propose to make a 30 per cent reduction to each of the sentences I would otherwise impose. I am satisfied that more than 20 per cent is required. 30 per cent is appropriate and borders on the generous.
[84] There are several other matters which I must address.
[85] The first is that Ms Gray referred me to four cases from overseas jurisdictions that she submitted might assist me. I am grateful to her but the sentencing requirements in Australia and Canada are different from ours and the circumstances of those cases are also different. The New Zealand authorities to which I have referred are sufficient for present purposes and so I have put those overseas cases to one side.
[86] The second matter is Ms Gray’s submission that I should make two other reductions to the starting point for matters personal to you:
(a) a 10 per cent reduction for the distress caused by your separation from your children; and
15 Tegg v Police HC Wellington AP271/00, 20 December 2000.
(b)a further 10 per cent reduction to minimise any abandonment or other psychological damage suffered by your children.
[87] I accept the Crown’s submission that neither of these discounts is warranted.
[88] As to the first, the separation has been essential because of your actions. Moreover, the distress that you have suffered, and will suffer, is also suffered by many parents who are sentenced to periods of imprisonment.
[89] As to the second, there is no evidence before me that the length of your period of imprisonment will expedite contact between you and your children, or that such would be beneficial to them in any event. I expect that any future contact between you and your children will be a matter for the Ministry of Vulnerable Children, experts and quite possibly the Parole Board.
[90] No other matters personal to you are required to be taken into account.
[91] The third matter, and this is important, is that the Crown has submitted that I should order you to serve a minimum period of imprisonment. I may do so if satisfied that the minimum period of imprisonment specified in the Parole Act 2002 would be insufficient to hold you accountable for the harm you have done to your children by your offending, or to denounce your conduct or to deter you or others from committing the same or similar offence or to protect the community from you.
[92] I am not satisfied that any of these purposes require me to impose a minimum period of imprisonment. The minimum period that you will serve will be sufficient to hold you accountable. Deterrence and denunciation are not relevant in this case and those who may require protection – your children –already have it.
[93] L, please stand:
(a) on charge 1, I sentence you to three years, six months’ imprisonment;
(b)on charge 2, I sentence you to 12 months’ imprisonment, to be served concurrently with the sentence imposed on charge 1;
(c) on charge 5, I sentence you to four months’ imprisonment, to be served concurrently with the sentence imposed on charge 1;
(d) on charge 8, I sentence you to three years, seven months’ imprisonment.
This sentence is cumulative to the sentence imposed on charge 1;
(e) on charge 7, I sentence you to 12 months’ imprisonment, to be served concurrently with the sentence imposed on charge 8;
(f) on charge 9, I sentence you to 10 months’ imprisonment, to be served concurrently with the sentence imposed on charge 8.
[94] This means that your total period of imprisonment is seven years and one month.
[95] Stand down.
Peters J