R v Lock HC Rotorua CRI 2009-069-620

[2010] NZHC 1823

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2009-069-620

THE QUEEN

v

ADAM CHRISTOPHER LOCK

Hearing:         30 September 2010

Appearances: F Pilditch for the Crown

M Wilkinson-Smith for Mr Lock

Judgment:      30 September 2010

SENTENCE OF WOODHOUSE J

Solicitors / Counsel:

Mr F Pilditch, Gordon Pilditch, Office of the Crown Solicitor, Rotorua

Mrs L Smith, Solicitor, Auckland

Mrs M Wilkinson-Smith, Barrister, Auckland

R V LOCK HC ROT CRI 2009-069-620  30 September 2010

[1]      Mr Lock, you can take a seat until I come to formally sentence you.

[2]      I need to explain the sentence, obviously, and I need to explain it to you in particular.   But I need to outline the background to all of this also because of the harm you have done not just to, of course, your baby, and to Ms Tata, and to the extended family, but the harm you do to the entire community by these things.  And this is why it will take some time for me to explain this.

[3]      You appear for sentence for eight offences, having pleaded guilty to the charges.

[4]      The most serious offence is the manslaughter of your five week old son Jayrhis.  The maximum penalty for that is life imprisonment.  And you should reflect on that.

[5]      The other offences are the following:

a)        One of assaulting your son Jayrhis with intent to injure him when he was about two to three weeks old.

b)Three offences of assaulting a female – and that is, your partner at the time and Jayrhis’ mother, Ms Tata.

c)        And three offences of assaulting Ms Tata with intent to injure her.

[6]      As you will be aware Mr Lock, you will be sentenced to a reasonably lengthy term of imprisonment.

Facts

[7]      I will deal with the facts, and I will deal with them reasonably fully and that is because they explain a lot in respect of the sentence I am going to impose.

[8]      You and Ms Tata met in October 2006.  You lived together until March 2009, apart from a period of about three months in 2008.  You stopped living together in March 2009 when you were arrested following Jayrhis’ death which occurred on 7

March 2009.

[9]      You were aged 18 when you and Ms Tata began living together.  She was, I understand, just a little bit older than you.   Ms Tata had a son from a previous relationship.

[10]     It appears that throughout the period that you were together you did not have any regular employment.   You and Ms Tata had a daughter – Deijah – born in January 2008.  Your son Jayrhis was born on 30 January 2009.

[11]     As we have already heard your relationship with Ms Tata was a volatile one. The summary of facts which you have accepted records the following – and I am quoting what you have agreed to:

The tension in their relationship occurred as a result of a number of recurring issues which included: Ms Tata staying out too long drinking alcohol with friends and leaving him with the children; the offender not finding a job; the offender’s  jealousy  towards  Ms  Tata’s  on-going  [relationship[1]]  with  the father of her son; and a belief by him that she may have been having sexual relations with other men.

[1] As read in Court. The word in the summary of facts is “friendship”.

[12]     The assaults on Ms Tata occurred on various dates between late 2006 and

March 2009.  The assaults involved:

•   on one occasion kicking her on the legs;

•   on another occasion, in a park, hitting her on the chest and winding her;

and

•    on  the  third  occasion  assaulting  her  on  her  shoulder,  while  she  was holding her son, which caused her to fall.

[13]     The assaults with intent to injure Ms Tata are described, in part, in the agreed summary of facts as follows:

a)       When Ms Tata was about four months pregnant with Jayrhis you kicked her in the back.   As a result of this assault her back was bruised.  She felt concerned for the baby and went to the hospital for a medical check.  This occurred during an argument about the amount of time Ms Tata had spent at a friend’s place.

b)The second assault with intent to injure occurred a few days before Jayrhis was born on 30 January 2009.  There was another argument and Ms Tata was screaming.  You pushed her so forcefully that she fell onto her stomach.   Again, because of her concern for the baby, she had a medical check.

c)        The final assault with intent to injure occurred after Jayrhis was born

– just after he was born.  The injury to Ms Tata was minor, but what caused your behaviour has some relevance.   Ms Tata had gone to a neighbour’s house to do her washing.  You thought she was taking too long and sent her oldest son to get her.  An argument started when she returned.   Your own words were, and I quote: “She was taking too long and the babies were hungry.”  You grabbed her face and pushed her back onto a couch.

[14]     Your assault on Jayrhis which led to his death occurred on the morning of 5

March 2009.  At about 9:00 am Ms Tata left the house to take Deijah to day-care centre and visit a lawyer.  Jayrhis was asleep.  You said you would look after him.

[15]     Ms Tata got home from her meeting with the lawyer at about 9:45 am.   It appears that nothing of relevance had occurred up to that time.  You got Jayrhis out of bed and sat with him while talking to Ms Tata and then returned him to his cot.

[16]     You continued talking about the meeting with  the lawyer.   It  concerned custody of Ms Tata’s elder son.  There was a custody report critical of you as well as

Ms Tata.  Both of you were upset by this report which led to your swearing at Ms

Tata and telling her to “get out of your face”.

[17]     She left the house.  This must have been around 10:00 am.  At some point before 10:25 am you assaulted Jayrhis and it is this assault which led to his death and which caused his death.

[18]     I will in a moment describe what you have admitted doing.   I will first describe the results of the examination of Jayrhis following his death.

Jayrhis had 3 bruises around his lower abdomen beneath the belly button. They were ‘fresh’ bruises, meaning they had occurred a short time prior to his death.

He had faint red blue bruises in the area of his armpit on the left hand side.

He had a reddish bruise that was oblong in shape on the right hand side of his neck.

He had a bruise on his right jaw.

X-rays  and  the  post-mortem  established  that  Jayrhis  had  fractured  ribs. Some of these fractured ribs were ‘fresh’ occurring a short time before his death, but the [x-rays] also detected … older fractures that were 2-3 weeks old.

Some of the newer fractures had occurred at the same site as the older fractures had occurred.  The fractures were in a part of the ribs at the back, close to where the rib joins the back bone or back vertebrae.

There was no visible injury to the outside of Jayrhis’ head but when the doctors looked at the inside of his scalp they detected 3 distinct areas of bruising right at the vertex or crown of the head.  There was one large and quite dark bruise with 2 smaller and lighter bruises beside it, making [a] total of 3 bruises.

Jayrhis had subdural and subarachnoid bleeding, that is bleeding over the surface of the brain inside the skull.  Bleeding of this kind is caused when the baby’s head is violently shaken and then impacts on some surface.

As a result of the assault [that] caused the bleeding, Jayrhis’ brain also rapidly swelled to the point where the heart was unable to deliver blood to the brain tissues and the brain tissues died.  …

…

The forces involved in causing an injury of this kind to Jayrhis’ head were significant.

[19]     You have admitted responsibility for the fatal injuries and for the earlier fractures.  The rib fractures which were two to three weeks old led to the charge of assaulting Jayrhis with intent to injure him.  The fractures were caused by his ribcage being squeezed with sufficient force to cause the back part of the rib, where it joins the back bone, to fracture.   This would have caused Jayrhis pain and discomfort although there may not have been any clear symptom of the injury obvious to a caregiver.

[20]     What you have admitted in relation to the assault on 5 March is as follows, and I again quote from the summary of facts you have accepted and the background to this is what I have earlier described:

Having heard the bad news about the reports the offender became very angry, telling Shannel Tata to ‘get the fuck out of his face’.

The  offender  took  out  his  anger  on  Jayrhis  by  picking  him  up  from underneath the armpits.   He squeezed him forcefully causing fresh rib fractures and at the same time shook him violently.  This caused his head to impact against a firm surface at least once and up to three times.   These impacts occurring [led] to the head injuries that caused his death.  As part of this assault, the offender also caused the bruises to his abdomen.

The offender did not mean to kill Jayrhis and did not consciously take the risk of killing him by assaulting him in the way that he did.   He reacted angrily to the baby in a situation where he was upset by the argument he had had with Shannel Tata.   After causing the injuries he immediately sought help.

[21]     Probably only a short time after your assault on Jayrhis a friend of yours arrived at your home.   As he got out of his car you came out of the house in a panicked state and told your friend that the baby was not breathing and you did not know what to do.   Your friend followed you back into the house and you both applied CPR.  You then telephoned an ambulance.  This call was made at 10:25 am.

[22]   The agreed summary of facts records the following in relation to your explanations at the time:

From the time that Jayrhis [was] taken to hospital in Taupo, to the time he died in Starship hospital, the only explanation the offender had for any of the injuries suffered by Jayrhis was that his daughter [your daughter], Deijah, may have jumped on him on one occasion.  He offered no explanation for how the injuries could have occurred but denied being responsible.

He [that is to say, you] was interviewed on 5 March 2009 and again, at length, on 13 March 2009.

He maintained that he had no knowledge of how Jayrhis suffered these injuries, how the bruises occurred, or how he had such a massive and serious head injury.  He maintained that he had nothing to do with the death of his son.

[23]     On 14 March 2009 you were charged with murdering your son and with two charges of assaulting Ms Tata.   You pleaded guilty to the substituted charge of manslaughter, and to the other charges, on the day your trial was due to start on 16

August of this year.

Victim impact statement

[24]     I come to the victim impact statements.

[25]     I have read the victim impact statement by Ms Tata.  Part of this is directed to the assaults on her.   To the extent that she describes those things differently from what you have accepted, I put that to one side but in doing that I am not intending to diminish the impact on her as a victim of the assaults that I have already described.

[26]     As would be expected, most of what she says is concerned with all of the affects on her of the loss of her son when he was five weeks old.  And that extends to the loss for the siblings, for the brother and the sister.  It is unnecessary to describe what will be readily understood by any parent, and it would not be appropriate for me to summarise in my words what Ms Tata has said in her own words.  As I say, I have read it and I take it into account.

Personal circumstances

[27]     I come to your personal circumstances.

[28]     You are now 22 years old.  I have, of course, read the pre-sentence report and

I take account of all relevant matters in the report.

[29]     From what you and others told the probation officer, it appears that you had, at the very least, a very difficult childhood – possibly a dreadful childhood.   In particular there was physical abuse from various family members you were left with. You were separated from your father at an early age and he later committed suicide. You had no relevant support from your mother.  The probation officer was unable to make contact with your mother.

[30]     You left school at the age of 16 and, in your words, went on your own path. This sadly includes a reasonably long list of convictions for a range of offences with the first one occurring when you were 17.  A lot of these previous offences are not of direct relevance, but there are convictions between November 2006 and September

2008 of common assault, assault with a blunt instrument on two occasions, male assaults female on two occasions in February 2008, and assaulting Police in September 2008.   It is relevant to state that in September 2008 you received a sentence of 4 months imprisonment for assault on Police.   You were on parole following release when the last three offences that I am dealing with occurred, including  the  assault  and  the  manslaughter  of  your  son.    And  you  were  also apparently on bail in respect of another matter.

[31]     I can accept that things beyond your control as a child may have contributed to the way you behave and, in particular, to the offences I now need to deal with.  I will take that into account to the extent that I am able to.  But I also have to take into account the way you are.  The probation officer’s assessment is, sadly, very negative. She said, and I quote:

It is likely that Adam Lock is predisposed towards violent behaviour as a result of his family background, a tendency that is further exacerbated by substance abuse.  He does not acknowledge that alcohol is a problem.  His drug abuse is longstanding and is considered serious.

You candidly admitted that you usually smoked up to five joints of cannabis a day. You are assessed as at high risk of re-offending and at low motivation and readiness to change.

[32]     I have read your letter that I received this morning and I have read it with care.  I can only express the hope, Mr Lock, that what you are now saying in that

letter you really mean – I will come back to this – and that you will make every effort that you can, because you have to make the effort, to change and deal with your problems.

Sentence

[33]     I need to fix what is called a starting point for your sentence.   That is an assessment of the sentence for the most serious charge having regard to the gravity of the offence itself, before taking account of any factors personal to you which might require an increase or decrease in that starting point.  The starting point will be fixed for the manslaughter.

[34]     In assessing the sentence in this way I take account of the relevant principles and purposes of sentencing set out in the Sentencing Act, including the special provisions of s 9A dealing with violence against children.  I also take account of the written and oral submissions that I have received from Mrs Wilkinson-Smith on your behalf and from Mr Pilditch on behalf of the Crown.  And, of course, I have heard reasonably lengthy oral submissions this morning.  As part of this I have considered the cases referred to by the lawyers.  I do not intend to discuss these cases but I will

note the names now for the record: Iorangi[2], Leuta[3], Waterhouse[4], Broadhurst[5],

Robinson[6], Tahuri[7], Skerten[8] and Pene[9].

[2] R v Iorangi CA533/99 534/99, 30 March 2000.

[3] R v Leuta [2002] 1 NZLR 215.

[4] R v Waterhouse (2004) 20 CRNZ 897 (CA).

[5] R v Broadhurst [2008] NZCA 454.

[6] R v Robinson HC Rotorua, CRI 2007-063-2028, 27 November 2009, Stevens J.

[7] R v Tahuri, HC Wanganui, CRI 2009-083-677, 18 June 2010, Gendall J.

[8] R v Skerten, HC Whangarei, CRI 2008-027-3118, 12 August 2010, Hugh Williams J.

[9] R v Pene [2010] NZCA 387.

[35]     Mr Pilditch submitted, for reasons which he fully explained, that the starting point for the manslaughter, with an increase for the earlier assault on your son, should be 8 ½ to 11 years imprisonment.  Mr Pilditch submitted there should be an increase to that to take account of the other offences, with the extent of the increase depending upon whether the starting point is closer to 8 ½ years or 11 years.

[36]     Mrs Wilkinson-Smith submitted that the sentence for all of the offending, before taking account of personal factors, should be 6 to 8 years imprisonment. Particular emphasis was placed on the case of Pene.

[37]     I repeat what I said a moment ago, I have received submissions particularly on your behalf and particularly helpful.  I have taken them all into account.  But I do not intend to seek to summarise what has been said on your behalf in what I am now saying.

[38]     The gravity of what you did is made clear by the facts I have set out – and that is why I set them out.  The aggravating features of this violence against a five week  old  baby are  clear  from  the  summary of  facts.    The  gravity of  this  was explained in a Court of Appeal case of Leuta as follows:

[77]     ... Violence inflicted upon a child is worse than that directed at another adult. Defencelessness and vulnerability are significant features, as is abuse of a position of power and responsibility. The fragility of young children,  particularly infants  [babies  –  I added  that  word], is  frequently referred to, and too often overlooked. The lethal consequences of shaking and striking babies is often enough publicised. There can be little reduction in criminality these days for a claim that the danger was not realised.

…

[80]     Of course child homicides often occur in complex relational and domestic situations. They bear upon the offender frequently to evoke sympathy and mitigate the offending. They are to be taken into account for sentencing. But they should not cloud the essential fact that the violent, cruel and brutal treatment of a defenceless and vulnerable child, to whom there are duties of trust and responsibility, constitutes conduct of grave criminality and, where death ensues, the sentencing task is in respect of a very serious crime.

[39]     In relation to the offence itself, there is little to reduce the gravity of it.   I have not overlooked the fact that the length of the violence you inflicted on Jayrhis would have been brief, but any benefit that you might get from that is diminished, if not lost, because he was only five weeks old and this was the second occasion on which you had violently assaulted him.  The other significant point in your favour, and I do take it into account, is that you immediately sought help, tried to revive Jayrhis, and you phoned the emergency services.

[40]     Taking account of all of the matters that I have referred to and, as I say, the submissions I have heard from both counsel, and having further reflected having heard those submissions, I consider that the starting point for the manslaughter of your son – dealing with the manslaughter alone – should be 8 years.

[41]     It is next necessary to deal with the other offences.  Both counsel submit, in effect, that all of the offences, including the manslaughter, are a related series of assaults.    Mrs  Wilkinson-Smith  did  not  put  it  quite  in  those  terms,  but  her submission  was  for  an  overall  sentence,  as  I indicated  earlier,  without  fixing a specific starting point for the manslaughter.  For reasons I have just mentioned it was submitted that I should increase the manslaughter starting point to take account of the other offences rather than impose separate sentences to be added to the manslaughter sentence.  And I agree with that.

[42]     In relation to these other offences, plainly the most serious was the earlier assault on your son.  In saying that I am not intending to diminish the relative gravity of the assaults on Ms Tata and in particular the assaults on her just before and just after Jayrhis was born.   The increase in the starting point having regard to those offences should be 1 ½ years, increasing it to 9 ½ years.

[43]     The overall assessment of 9 ½ years is an assessment of the appropriate sentence for the totality of the offending, before considering personal facts.  And in making this assessment I have not overlooked that one matter taken into account in fixing the starting point for the manslaughter was that this was your second violent assault on Jayrhis.  I am quite satisfied that that has not been counted against you twice.

Personal factors

[44]     I come to personal factors.

[45]     In relation to factors personal to you, Mrs Wilkinson-Smith accepted that your previous convictions are relevant as an aggravating factor.  She submitted that

the factors which do warrant a reduction of the sentence are as follows – and I

simply summarise them:

•    Your guilty pleas and remorse.

•    The abuse and neglect you suffered as a child.

•    Your age.

•   A further relevant consideration is that the volatile relationship with Ms Tata was not all your fault, and that is accepted by the Crown as far as it goes, and it does not go very far.

•   Associated with the last three points, Mrs Wilkinson-Smith submitted that when you entered into the role of family man and parent at the age of 18, and then had two children with Ms Tata, you were ill-equipped to cope with the pressures and stresses of looking after small children and maintaining a healthy relationship.

•   And  finally,  you  have  lost  your  son  and  the  relationship  with  your daughter even though these are the results of your own actions.   Mrs Wilkinson-Smith noted that you appear to have had a good relationship with your daughter – that by all accounts you were a good parent to her. As I mentioned during Mrs Wilkinson-Smith’s submissions, that is to your credit, but sadly it makes your behaviour towards Deijah worse in a way and it diminishes the weight of the submission that you were ill- equipped to be a parent.

[46]     As I have indicated earlier Mr Lock, I have also read your letter to me that I

received this morning and I do take account of what you say as much as I can.

[47]     The effect of the guilty pleas needs to be assessed at the very end of the process and I will come back to that.  Any reduction for remorse will be dealt with by the reduction for the guilty pleas.

[48]     I do not intend to increase the sentence because of the previous convictions, or for the offending while on bail, but those things do reduce the credit you might otherwise get.

[49]     One part of the sentencing process – and this should not be overlooked – is to try, so far as it can be achieved with a sentence, to encourage you to deal with your personal problems, and I have already talked about that.  You need to take advantage of all of the help you can get while you are in prison.  And your letter says to me that that is what you want to do amongst other things – so do it.  I can also make some allowance for the other personal matters Mrs Wilkinson-Smith referred to.  For these things, Mr Lock, the sentence will be reduced by 1 year to 8 ½ years.  And in my judgment of that that is a generous reduction.  I want you to remember that.  I want you to remember it as a form of encouragement to deal with your problems and never come back here again.

Guilty pleas

[50]     This leaves an assessment of the reduction you are entitled to for the guilty pleas.

[51]     You agreed to plead guilty approximately two weeks before the trial was due to start, although the formal plea was entered later.   Based on a Court of Appeal decision called Hessell[10], the reduction for a guilty plea at that stage would be around 10% at best.

[10] R v Hessell [2010] 2 NZLR 298 (CA)

[52]     Mrs Wilkinson-Smith has submitted that a greater reduction should be given because you offered to plead guilty to a charge of manslaughter in February 2010, six months before the trial was due to start.

[53]     I do not consider that you are entitled to a credit assessed on the basis that you offered to plead guilty to manslaughter in February.  This is because the offer was made effectively on condition that the Crown agree that the fatal injuries to your

acts in relation to your son being minor compared with what you have now admitted.

[54]     The maximum reduction you could have got if you had pleaded guilty in February would have been around 20% and probably no more than that.  Mr Pilditch submitted that you are, and I quote, “entitled to a discount of 10% or over but not

20%”.  I consider that that is a responsible acknowledgement which recognises that these calculations are not precise and that there is a limited grey area in relation to the facts of your case on this point.  I will allow just over 15%.  In allowing this I have not overlooked Mrs Wilkinson-Smith’s submissions on the point including a submission that if the charge had been manslaughter you would have pleaded guilty much earlier and sought a disputed facts hearing.   This reduction amounts to 16 months.   And that produces a final sentence for manslaughter of 7 years and 2 months.

Minimum period of imprisonment

[55]   There is a question whether I should impose a minimum period of imprisonment.   Under the Sentencing Act I can impose a minimum period of imprisonment longer than the period specified in the Parole Act if I am satisfied that the period specified in the Parole Act is insufficient for one or more of the following:

a)        Holding you accountable for the harm done to the victims of your offences and to the community.

b)        Denouncing the conduct in which you were involved.

c)        Deterring you and others from committing similar offences – and that has been a matter of discussion today with counsel.

d)       Protecting the community from you.

the full term of the sentence – that is to say in your case two-thirds of the sentence of

7 years and 2 months.

[57]     Mr Pilditch has submitted that a minimum period should be imposed for all four reasons set out in the Sentencing Act.  I do consider that the period that would otherwise apply under the Parole Act is insufficient having regard to those four considerations and from that I consider that a minimum period of imprisonment should be imposed of 3 years and 6 months.

Final sentence

[58]     You should now stand.

[59]    On the charge of manslaughter you are sentenced to 7 years 2 months imprisonment with a minimum period of imprisonment, pursuant to s 86 of the Sentencing Act, of 3 years and 6 months.

[60]     On count 7, being the offence of assaulting your son with intent to injure him, you are sentenced to 2 years imprisonment.

[61]     For the offences in counts 6 and 8, being assaults on Ms Tata with intent to injure her just before and just after your son’s birth, you are sentenced to imprisonment for 18 months.

[62]     On the remaining charges you are sentenced to imprisonment for 1 year.

[63]     All of the sentences are concurrent, which means that the maximum term of imprisonment is 7 years 2 months.

[64]     There is also a charge of intentional damage when you were in a Police cell. For that offence you are convicted, if the conviction has not already been entered, and you are discharged.

Peter Woodhouse J