R v Longshaw

[2023] NZHC 2902

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2021-012-1923

[2023] NZHC 2902

THE KING

v

CARL FREDERICK LONGSHAW

Hearing:

16 October 2023

Appearances:

R P Bates for Crown

A M Dawson for Defendant

Judgment:

16 October 2023

SENTENCING REMARKS OF EATON J

Introduction

[1]    Mr Longshaw, you may remain seated until I ask you to stand. You appear for sentencing having entered a guilty plea to a charge of neglecting a vulnerable adult, Anna Riddell, known by her family as Polly.

[2]    I acknowledge the presence, both in Court and remotely, of Ms Riddell’s family and friends, and the Court is very conscious that today marks the fifth anniversary of her death.

[3]    Sentencing is always a difficult exercise, and particularly so when someone has died and the admitted criminal conduct is an omission, one involving gross negligence rather than an intentional or reckless act.

R v LONGSHAW [2023] NZHC 2902 [16 October 2023]

The offending

[4]    It is first appropriate that I record the facts of your offending, and I take these from the summary of facts that has been agreed between the Crown solicitor and the defence.

[5]    You and Ms Riddell were in what is described as an off and on again relationship up to the time of her death on 16 October 2018. She had been living in Central Otago until about 13 October 2018, when she arrived at your home in Brighton, here in Dunedin.

[6]You were both at your address on the evening of 15 October 2018. Just after

9.30 pm, Ms Riddell spoke to a relative on the phone for over 25 minutes. That relative told the Police that Ms Riddell’s mood was flat, which was out of character. That evening you observed Ms Riddell take her usual medication. When that was is not clear. Unbeknownst to you, at some point Ms Riddell also self-administered a quantity of non-prescription medication, including methadone, morphine and MDMA.

[7]    You became suspicious that she had consumed non-prescription medication and asked her if she had taken drugs. She denied having done so. Again, exactly when that exchange took place was not clear. You nevertheless remained concerned she had taken drugs, and you took it upon yourself to take care of her. You told the Police that you monitored her condition from the first time you questioned her about drugs through until the following afternoon of 16 October 2018, a period of several hours.

[8]    At around 5 pm that afternoon, your concern for Ms Riddell’s well-being had heightened. The summary of facts records that you mistakenly believed that she was suffering from pneumonia. You took steps to ensure her mouth was open and her airways clear. At 5.58 pm you called 111 and you said, “I think my partner is dead”. Emergency services arrived a short time later. Tragically, Ms Riddell was confirmed to have died.

[9]    A post-mortem analysis confirmed the presence of diazepam, methadone, MDMA, methamphetamine, morphine, paracetamol, pregabalin, tramadol, zopiclone and possibly doxepin in Ms Riddell’s system at the time of her death. Pathology

advice was that Ms Riddell may have survived had she been transferred to a medical centre and received appropriate medical treatment soon after she became non- responsive and developed respiratory compromise. The summary records Ms Riddell died due to cardiorespiratory depression in the context of polypharmacy (the simultaneous use of multiple drugs) and caused by the additive effect of a number of those drugs having a depressant action on her central nervous system.

[10]   On the evening of Ms Riddell’s death, you told Police you had cared for her until you believed her condition was such that you needed to call emergency services.

Victim impact statements

[11]   This morning, I have listened carefully to the powerful victim impact statements from Polly’s family including her mother, sister, grandmother and uncle. I have also read the victim impact statement of another uncle. I can only summarise the statements very briefly. They describe a beloved daughter, sister, granddaughter and niece, someone who was plainly a very colourful and bright character. Someone whose laughter and joy were infectious. Someone whose death has led to incalculable grief to her family and despair believing that her death may have been avoided by a simple 111 call.

[12]   Mr Longshaw, no doubt hearing directly from Ms Riddell’s family this morning gives you some insight into the consequences of your omission for Polly’s family.

Your personal circumstances

[13]   As to your personal circumstances, the Provision of Advice to Courts (PAC) report tells me you are 68 years old. You are a superannuant without savings. You are described as suffering extreme anxiety and generally keeping poor mental health. Past traumatic experiences in your life are referenced within that report. It refers to a physical injury that has left you requiring the assistance of a walking cane. The report writer considered that your cognitive acuity is compromised, likely due to age-related decline, but possibly impacted by what is described as your prolonged use of cannabis

and alcohol. I have read a medical report from your GP confirming matters raised in the PAC report.

[14]   You told the report writer you are heavily traumatised by Ms Riddell’s death, and you expressed your ongoing grief for the loss of a friend.

[15]   The report also records your denial of allegations of neglect or wrongdoing. However, in his written submissions, Mr Dawson on your behalf tells me that is not your position and that you do accept responsibility and acknowledge your failing breached the criminal law.

[16]The report assesses you as being a low risk of re-offending.

Approach

[17]   In sentencing you this morning, I have regard to the purposes and principles set out in ss 7 and 8 of the Sentencing Act 2002. The principles that require consideration in your case include:

(a)the gravity of your offending and your personal culpability;

(b)the seriousness of your offence compared with other offences;

(c)the need to ensure the sentence I impose is consistent with other sentences imposed for this type of offending;

(d)the effect of your offending on your victims, and by victims I mean all of Ms Riddell’s family;

(e)your personal circumstances; and

(f)the requirement that I impose the least restrictive outcome that is appropriate in the circumstances.

[18]The particular purposes of sentencing that are relevant include:

(a)the need to hold you accountable for the harm you have caused;

(b)the need to promote in you a sense of responsibility for, and acknowledgement of, that harm; and

(c)to denounce and deter your offending.

[19]   The sentencing approach I must adopt is well-established. I must assess your offending, having regard to aggravating and mitigating factors, and determine a sentence starting point. From there I assess your personal circumstances and make adjustments for any aggravating or mitigating factors that are personal to you.1

Procedural history

[20]   Before I turn to assess your culpability, I think it important to briefly record the procedural history of the prosecution.

[21]   You were initially charged with manslaughter. That charge was laid some three years after Ms Riddell died. The charge of manslaughter alleged you failed to perform a legal duty to provide medical care to Ms Riddell and that the failing was a substantial and operative cause of her death. Shortly before you were to face trial on the charge of manslaughter, the Crown elected to lay the alternative charge of neglect of a vulnerable adult. A guilty plea was offered by you and accepted by the Crown to that lesser charge, and the manslaughter charge was dismissed. The essential elements of the offence that you have pleaded guilty to, and that I must sentence you in relation to, are:

(a)that you had actual care or charge of Ms Riddell;

(b)that Ms Riddell was a vulnerable adult;

(c)that you omitted to perform a legal duty to obtain medical assistance;

1   Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].

(d)that the omission was likely to cause adverse effects to the health of the Ms Riddell;

(e)that your omission was a major departure from the standard of care to be expected of a reasonable person; and

(f)that you acted intentionally in the sense that the omission was not accidental.

[22]   It is by reference to those elements that I must assess your culpability. Of particular note, the lesser charge does not allege a causative connection between your failing and Ms Riddell’s death.

Starting point

[23]   I have been referred to a number of cases. However, as both counsel acknowledge, there is a dearth of reported sentencings for cases involving vulnerable adults, and none that involve facts that are analogous to the present offending. I briefly refer to the facts and starting points of those cases that have been referred to me simply to highlight the quite different factual scenarios that can arise in relation to this charge.

[24]   In R v Hegh,2 Mr Hegh had assumed full-time care of his grandfather in around 2015. The care was initially conducted reasonably well, and Mr Hegh received a supported living benefit at different periods. Police had arrived at the house on an unrelated matter but uplifted Mr Hegh’s grandfather on observing his condition. Police found him with infections in his feet, dry flaky skin, swelling in his hands, gout, constipation, and he was dehydrated. The victim had not been taken to his medical checks, and he had not showered in days or weeks when found. He was wearing clothes that smelled of urine, and the house was in a “disgusting” state. There was an absence of adequate food to sustain him. Mr Hegh was found guilty of neglect over a period of around six to seven months. The Judge adopted a starting point of two years and six months’ imprisonment.

2      R v Hegh [2019] NZDC 11210.

[25]   R v Karauria involved a victim who was an intellectually disabled adult.3 The victim had been taken into the carers’ home after living by a river bank. Whilst care initially went well, there was a period of four to five months of poor treatment. The ill-treatment involved restricting food, verbal abuse, requiring the victim to clean himself outside and preventing him from accessing the shower or washing machine. The defendants also stole the victim’s money and restricted the use of his Eftpos card. When the victim left, his body was found to be covered in scars requiring medical attention. Although the defendants had not caused those wounds, they had taken no steps to ensure the victim received the requisite medical attention. A starting point of 20 months’ imprisonment was taken.

[26]   In Heppell v R,4 the victim, Mrs Heppell was being cared for by two family members. On one occasion, an ambulance was called. The officers, on arrival, found the victim in bed. She was described as being filthy. She had oozing wounds which were at least four weeks old, one covered in a “Chux” cloth. Her eyes and eyelashes were covered in dried mucus, and she had blue mould under her breasts. She was wearing a diaper that was full of faeces, and she appeared to have been left on her own for a long time. She had bedsores and a cavity pressure ulcer on her sacrum. There were other injuries to her legs and feet as well as to her arm. There was cat litter, hair and faeces on the floor. The house was described as having a horrendous smell. Her room was very dirty. The Judge considered the extended period of extreme neglect and the gross breach of trust warranted a four-year starting point.

[27]   As Mr Dawson has submitted this morning, most of the cases involve significant and usually prolonged ill-treatment or neglect of either young children or elderly people. They involve more formal and established trust relationships. There is little guidance for a case where a vulnerable adult was suffering from the effects of the self-administration of non-prescribed drugs.

[28]   Mr Dawson refers to R v Lawson which involved a charge of manslaughter.5 In that case, at the victim’s request, the defendant had injected the victim with

3      R v Karauria [2017] NZHC 2759.

4      R v Heppell [2017] NZHC 64.

5      R v Lawson [2012] NZHC 517.

morphine, as well as injecting himself. They consumed other drugs and alcohol. The victim became unresponsive and unconscious. Mr Lawson panicked and left but was later persuaded by his girlfriend to call an ambulance. Paramedics found the victim dead. A starting point of four years’ imprisonment was adopted. The Judge viewed Mr Lawson’s inaction as the absence of a mitigating factor rather than the presence of an aggravating factor.

[29]   Mr Longshaw, it is clear that the cases that have been referred to me are readily distinguishable. The common feature being that both victim vulnerability and harm was, in significant part, a direct consequence of the defendant’s acts and omissions, and, other than in Lawson, the acts and omissions took place over a prolonged period.

Aggravating factors

[30]   Mr Bates, on behalf of the Crown, advances four aggravating factors of your offending. First, he submits that victim vulnerability was at a very high level. He refers to pathology evidence that Ms Riddell may have been deeply unconscious within a period of 15 minutes to four hours post-ingestion of the cocktail of drugs, dependent on the method of ingestion, which in this case remains unknown. I agree that this is an aggravating  factor  because  clearly,  and  for  a  prolonged  period,  Ms Riddell was in a state where she could not take steps to care for herself and was therefore reliant on you. I accept you did not know when or if Ms Riddell had taken a cocktail of drugs, and you were ignorant of her true level of vulnerability.

[31]   Second, Mr Bates submits the breach of trust intrinsic to this offence is an aggravating factor. I accept that submission would be sound in circumstances where a formal caregiver arrangement has been assumed by a defendant, for example, paid care or a relative who had assumed the responsibility of caring for somebody who is vulnerable through age or affliction. Mr Longshaw, you were not a caregiver to Ms Riddell. You did not seek that role. Ms Riddell was a guest at your house and took an overdose of drugs. When she became unresponsive, you voluntarily assumed the role of caregiver. The very nature of the charge to which you have pleaded guilty assumes a trust relationship. However, on the facts of this case, I do not consider a breach of trust to be an aggravating factor.

[32]   The third factor raised by Mr Bates is the extent of harm caused. Of course, I accept that it is a significant and aggravating factor that Ms Riddell tragically lost her life. However, as I have been at some pains to point out, the offence for which you are to be sentenced does not allege your failing caused Ms Riddell’s death. The dismissal of the manslaughter charge and the acceptance of a plea to the lesser alternative charge reflects the lack of proven causative connection between your failure and her death. By your guilty plea, you admit that your failure had adverse effects to Ms Riddell’s health. In accepting a plea to the lesser charge, the Crown acknowledge the evidence does not permit the Court to find that your failure was causative of her death. On the evidence before me, I cannot determine whether, if you had called 111 earlier, Ms Riddell would have survived. It is unknown when Ms Riddell ingested the fatal cocktail of drugs. Consequently, it is unknown when medical assistance was necessary in order to provide a probable chance of her life being prolonged or preserved. I accept that she may have survived had an ambulance been called soon after she became non-responsive, but it is important that Ms Riddell’s family understand that the charge to which you have pleaded guilty does not allege that your failure caused Ms Riddell’s death.

[33]   Finally, Mr Bates submits that the degree of negligence is at a high level having regard to the time that passed between you becoming aware Ms Riddell may have overdosed and when you made the 111 call. However, rather than viewing that delay as reflecting a higher level of negligence, in my view it is the delay that amounts to the major departure that is an essential element of the offence to which you have pleaded guilty.

[34]   As Mr Bates responsibly acknowledges, and in contradistinction to the other cases I have discussed, there is no suggestion your neglect involved callousness or cruelty. This was a case of gross negligence. It follows that I find the aggravating factors are more limited than is advanced by the Crown. Overall, I assess your culpability to be moderate.

[35]   There are no factors personal that warrant an uplift in your sentence starting point.

[36]   Mr Bates, by reference to aggravating factors and the cases he has referred to, submits that a starting point of two and a half years’ imprisonment is appropriate.  Mr Dawson accepts that imprisonment is the inevitable starting point but submits that a lesser term is appropriate.

[37]   The offence of neglecting a vulnerable person is a serious offence. As much is recognised by the fact it has a maximum penalty of ten years imprisonment. There is no tariff case for this offending. That reflects the vast array of factual circumstances that might give rise to this charge.

[38]   A civilised society imposes both a duty and standards on individuals who, regardless of the circumstances, have assumed the responsibility of caring for a vulnerable person. It imposes a duty and standards to take steps to ensure that a vulnerable person is not exposed to suffering, injury or adverse effects. If there is a major departure from that standard, then the omission becomes criminal. You accept your failing was a major departure from the standard of care that you owed to Ms Riddell.

[39]   Your failing was not as prolonged as the other cases to which I have been referred, but it certainly was not momentary. The call for assistance should have been made hours earlier, immediately once Ms Riddell was unresponsive. A simple 111 phone call when you could not rouse Ms Riddell would have discharged your legal duty. You failed to appreciate the seriousness of Ms Riddell’s condition because, it seems, you overestimated your ability to assess and respond to the situation that was unfolding. That you suspected but did not know she had taken a lethal cocktail of drugs does not excuse your failing to appreciate that she was in dire need of medical assistance. Not when Ms Riddell was in an unresponsive state for so long.

[40]   In my view, your offending was less culpable than the defendants in the cases referred to by counsel. Of course, I acknowledge that this case, unlike the others, has involved the tragic death of the victim. However, I guard against fixing a starting point that is determined by the outcome. Nevertheless, I agree with both counsel that the appropriate starting point must be one of imprisonment.

[41]   I assess the appropriate starting point to be a sentence of 22 months’ imprisonment.

[42]I now turn to mitigating factors.

Mitigating factors

Guilty plea

[43]   Mr Dawson seeks – and Mr Bates agrees – that a 25 per cent deduction for your guilty plea is appropriate. I agree. You entered a guilty plea immediately when the lesser charge was offered by the Crown.

Remorse

[44]   Mr Dawson, in his written submissions, has referred to your expression of remorse. That is also recorded in the pre-sentence report. Mr Dawson acknowledges that other comments you made to the author of that report conflict with the submission made that you have demonstrated remorse. I have no doubt that you are and have for some time, been grieving the loss of your friend. However, your grief should not of itself be conflated with remorse. While I acknowledge both your grief and what I would describe as your regret at not making an earlier phone call for medical assistance to help Ms Riddell, I am not persuaded that you genuinely accept responsibility for having committed a serious criminal offence and not, in my view, at a level that would justify a discrete discount to reflect remorse.

Previous good character

[45]   Mr Dawson observes that you have a very limited criminal history, and your most recent convictions were almost 25 years ago. He has filed three character references attesting to your good nature. I agree that your previous criminal history is irrelevant to this sentencing, either as an aggravating personal factor, or as negating an allowance for previous good character. I allow a modest discount of five per cent to reflect your previous good character.

Mental and physical health

[46]   Mr Dawson has filed a medical report outlining your current medical conditions and medications. He refers to your historical engagement with specialist medical health  teams  and  the  diagnoses  of  anxiety  and  depression  pre-dating Ms Riddell’s death. He highlights the sensitive matters referenced in the PAC report. He tells me that you undertake weekly ACC-funded counselling to deal with past trauma. He seeks a discrete deduction of 5-10 per cent to recognise the physical and mental challenges that you face, challenges that he submits will make it more difficult for you to serve any sentence imposed by the Court.

[47]   Mr Longshaw, I accept what I am told by your GP. But I note it is not suggested either by your GP or by Mr Dawson that there is any causative connection between your mental health and your offending. Furthermore, I am not persuaded that either your physical or mental health is such as to render the otherwise appropriate sentence that the Court would impose to be disproportionately severe. I am not, therefore, persuaded that a discrete discount is appropriate.

[48]   Overall, I allow deduction for the guilty plea and previous good character of 30 per cent representing personal mitigating factors. That leads to an end sentence of 15 months’ imprisonment.

Home Detention

[49]   Having reached an end sentence of less than two years imprisonment, I am required to consider whether that sentence should be commuted to an electronically- monitored sentence. Again, I have regard to the purposes and principles of sentencing.

[50]   Mr Bates submits that any sentence other than a full time custodial sentence would not be sufficient to denounce your offending.

[51]   Mr Dawson submits that a sentence of home detention is the least restrictive appropriate sentence.

[52]   The sentencing options of imprisonment and home detention would both serve the principles of denunciation and deterrence in my view. Home detention is a serious sentence, second only in the hierarchy of sentencing to imprisonment. It is a sentence which encourages the principles of denunciation and deterrence by imposing real restrictions on liberty.6 I must determine if it better qualifies as the least restrictive sentence to impose, taking into account all the purposes of sentencing.

[53]   I accept that you pose a low risk of re-offending. I accept you have rehabilitative needs that are better served in the community. The reports tell me you have an address assessed as suitable for an electronically monitored sentence and that you are assessed as a suitable candidate for such a sentence. Mr Dawson reminds me of s 16(1) of the Sentencing Act 2002, a provision requiring the Court to have regard to the desirability of keeping offenders in the community. Overall, I am satisfied that a sentence of imprisonment is not necessary to achieve personal deterrence and that the facts of this offending are such that the need for public deterrence is tempered. I am therefore satisfied that a sentence short of imprisonment is appropriate.

Disposition

[54]Mr Longshaw, are you able to stand please?

[55]   Mr Longshaw, on the charge of neglecting a vulnerable person you are sentenced to seven and a half months’ home detention to be served at the address recorded in the PAC report on the following conditions:

(a)you are to travel directly to your residential address as recorded in the PAC report following this sentencing and to await a Department of Corrections field officer;

(b)you are not to possess, consume or use any alcohol or drugs that are not prescribed to you;

6      R v Iosefa [2008] NZCA 453 at [41].

(c)you are to attend and complete an appropriate alcohol and drug programme to the satisfaction of a probation officer. The specific details of the appropriate programme shall be determined by the probation officer;

(d)you are to attend and complete an appropriate programme to address offending-related factors to the satisfaction of a probation officer. The specific details of the appropriate programme shall be determined by the probation officer; and

(e)you are not to associate with or contact the family of Polly Riddell without the prior written approval of a probation officer.

[56]I do not impose any post-detention conditions.

Ancillary orders

[57]   Mr Bates seeks an order for the destruction of drugs, paraphernalia, medications, firearm and ammunition that was seized from your address. That application is not opposed by Mr Dawson, and I make an order accordingly.

[58]Mr Longshaw, you can stand down.

...................................................

Eaton J

Solicitors:

R Smith for Crown

A M Dawson for Defendant