R v LR
[2024] NZHC 2533
•5 September 2024
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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-009-8305
[2024] NZHC 2533
THE KING v
LR JR
Hearing: 5 September 2024 Appearances:
P N M Brown and K A White for Crown D J Matthews for Defendant LR
P N Dyhrberg and D M Kirby for Defendant JR
Judgment:
5 September 2024
SENTENCING REMARKS OF MANDER J
[1] LR, you are for sentence on three charges, two of which are representative, of causing grievous bodily harm with intent to injure a young child. JR, you are for sentence on a charge of ill-treatment or neglect of a child. Both of you pleaded guilty
R v LR [2024] NZHC 2533 [5 September 2024]
to these charges following the provision of sentence indications which you each accepted. Those decisions will form part of the record of my sentencing remarks and will be annexed to the sentencing decision delivered this morning.1
[2]For clarity, I will refer to each of you by your first names.
The offending
[3] JR, the victim was your son, and, LR, your grandson. He was four at the time of the offending. In July 2021, JR moved with him and his younger brother into LR’s one-bedroom flat where she was living with her partner.
[4] LR and her partner occupied the bedroom and JR, you slept on a couch in the living room. Your youngest child slept in a cot in front of the couch, while the victim slept in the front door area on a folded duvet with some pillows and blankets on the vinyl floor, and then in a tub in the bathroom.
[5] JR, you were pregnant around this time. On 16 July 2021, you went into labour. There were complications and you suffered a miscarriage. I will address this further in due course. In the weeks following, you became withdrawn and paid little to no attention to your children. LR, you became responsible for their day-to-day care. Over the approximate three-month period the four-year-old was living at the address, the victim was subjected to violence, abuse, and neglect.
[6] The children had no routine in their life. They did not go to any form of day care or have any contact with anyone outside the flat. They were simply allowed to stay up watching television into the early hours of the morning. What little food was provided was not age appropriate. For long periods the victim was not allowed to move from the bath despite his obvious distress.
LR’s offending
[7] LR, I address the three charges for which you are for sentence. The victim would periodically touch his penis. This would enrage you. You, inexplicably, took
1 R v LR [2024] NZHC 971; and R v JR [2024] 1276.
the view it was emblematic of the tendencies of a future paedophile. You therefore struck him in the genital area with your jandal, causing bruising around his penis and testicles.
[8] On multiple occasions when the boy was emotional, you would pin him down and hold him in that position with your knee. Such was the force used, it resulted in bruising to his back.
[9] Finally, and most seriously, there is significant bruising around the little boy’s torso, arms and legs, as well as a fracture to his sternum and seven compression fractures to his spine. Those injuries are consistent with you holding the victim at waist height and deliberately dropping him onto the floor.
JR’s offending
[10] On the 18th of September 2021, JR, you left the address, leaving your two children with LR, notwithstanding your awareness of their suffering. This is apparent from a number of the texts you sent to your mother in which you threatened to contact the child welfare authorities.
[11] Some of these texts indicate an indifference about what LR may be doing to the victim, although you maintained to police you were “trying to get a response out of [LR]” and that you did care about your child. Finally, you contacted Oranga Tamariki which had previously had some involvement in monitoring the care and protection of the victim and his younger brother while in your care.
[12] When later spoken to by the authorities, you could not explain why you had left your children with your mother or why you did not attempt to get help prior to contacting Oranga Tamariki. At the time, you provided no explanation for your actions or, more accurately, your inaction.
[13] However, in the latter part of last year, after being charged, you saw a psychologist. You told her that in July 2021, while pregnant, you experienced vaginal bleeding that frightened you. You said you could not go to the hospital because of COVID and that your midwife had stopped contacting you so, instead, you went to
LR’s house with your two children. A scan undertaken on 16 July confirmed that you were pregnant.
[14] A second scan, carried out on 16 August, showed the foetus had died. There is a dearth of information regarding your condition at this time. You report having suffered very heavy bleeding and cramps during this period, and having aborted the foetus at home. There appears to have been very little medical oversight.
[15] You describe being in a distressed state and of suffering acute pain. You reported being overwhelmed by LR’s control, which you say included taking your phone, and you became increasingly isolated. You wanted to contact your partner, who is the father of the two children, with whom you have been in a long-term relationship. You say this resulted in you leaving LR’s flat on 18 September.
[16] The sentence indication hearing was adjourned to allow the Crown to clarify the particulars of the charge and the allegations of criminal responsibility it was making against you. It led to the Crown amending the charge to one of omitting to discharge or perform the legal duty of a parent to protect their child from injury, and the removal of an allegation of failing to “provide necessaries”. The Crown confirmed, for the purpose of the sentence indication, that your culpability is limited to the period starting 18 September, when you left the victim with LR, knowing he was likely to experience suffering or be injured from continuing to be in her care, and the date of Oranga Tamariki’s intervention on 7 October.
Medical examination of victim
[17] On that day, Oranga Tamariki arranged a whānau hui to assess the children’s welfare, after staff became aware JR had left the children in LR’s care. When LR and her partner arrived with the children, a social worker immediately called an ambulance.
[18] The victim was reported as emaciated to the point where he was unable to walk and so traumatised, he was unable to express any emotion or to talk. He had numerous injuries over his face and body. He was transported to hospital for urgent medical
treatment. There, his body weight was found to be well below average, and he was in a severely traumatised state. A physical examination revealed:
• Severe psychological trauma with no emotional response.
• Multiple bruises, lacerations and scratches all over his face, including on both sides around his eyes, over his cheekbones and over his jawbone.
• Multiple lacerations down the midline of his face, over his nose and upper lip and chin.
• Bruising over the nape of the neck.
• Extensive bruising of various shades on each of his limbs, including a circular lesion on his forearm consistent with a burn.
• Multiple areas of bruising throughout his back and spine, including the length of his spine, and bruises laterally over his shoulder blades.
[19] Further examination revealed fractures of his sternum, ribs, and possibly to the pelvis. He has also been diagnosed with a likely cortical vision impairment as a result of a brain injury. As earlier noted, there were seven compression fractures to his spine.
Approach to sentencing
[20] The Sentencing Act sets out the purposes and principles of sentencing that I am required to take into account in sentencing you both today. Relevant purposes include accountability, denunciation, deterrence and rehabilitation. LR, those factors are particularly relevant to your offending. For you both, I need to consider the gravity of your offending, the degree of your culpability, the seriousness of the offending and the general desirability of consistency in imposing sentences for like offending. I am required to impose the least restrictive outcome that is appropriate in the circumstances.2
Victim impact statements
[21]At the time of the sentence indication hearings, I observed that:3
The abuse and neglect this child has experienced has had a profound effect on him. Despite the progress he has made as a result of various interventions, he remains very dysregulated and suffers periods of extreme fear which impacts
2 Sentencing Act 2002, s 8(g).
3 R v JR, above n 1, at [20].
on his behaviour. He struggles with directive activities, dealing with new people, and with understanding information and communicating his feelings and needs.
[22] Since the sentence indication hearing I have received updated information about the victim and further impact statements have been filed to assist sentencing. Jackie Bresnell, the child’s paternal grandmother, has provided a victim impact statement to the Court.
[23] Ms Bresnell, thank you both for being here today and for presenting your victim impact statement this morning. Speaking as you have I know is not easy but it may go some way to reinforce to the defendants the unacceptability of their conduct.
[24] I have also received a victim impact statement from the child’s foster parents and an updated report from the Open Home Foundation. I am advised that the effects of the child’s abuse is so severe the support and care he needs means he has been unable to live together with his siblings in the same home. He has made significant progress to date, but the Open Home Foundation notes he remains “severely impacted” every day by the physical harm he endured.
[25] At six years old, the boy can only manage an hour and a half in the community before he fears for his safety. His communication skills are those of a two- or three- year-old, despite his age. He cannot convey his emotions and needs effectively when upset. He wishes to attend school like others his age, but his brain injury and developmental trauma means the Foundation has been unable to find a school that can provide for his needs.
[26] The little boy is now loved and accepted by those around him. He is said to bring “joy and beauty to the lives of everyone he meets”. Nevertheless, it is very clear how much has been taken from him and he will, no doubt, “hit a ceiling” in his development at some point—his life has been irreversibly changed to his detriment and responsibility must lie with those who were supposed to care for him.
[27]I turn now to the sentencing exercise in respect of each of you.
Sentence – LR
Starting point
[28] Firstly, LR, in my sentence indication I determined a starting point of six and a half years’ imprisonment to be appropriate.4 For the reasons set out in my sentence indication decision, which I do not intend to repeat today, that is the starting point I adopt.5
Personal factors
Prior offending
[29] While your criminal record is notable, apart from one discrete exception, it is not marked by serious violence. It is not suggested an uplift is required.
Guilty pleas
[30]For your guilty pleas, as indicated, I apply a 15 per cent credit.
Personal circumstances
[31] I have reviewed a pre-sentence report and an alcohol and drug report. You are said to be saddened at the impact this offending has had on your whānau but otherwise you exhibit very little insight into your offending. You may be said to be ambivalent, at best, in terms of your understanding of your offending and the impact it has had on the victim. You appear, from my observation, entirely self-centred. You state the pressure on you at the time of your offending caused a relapse into drug use and that you became increasingly resentful toward the child and your daughter. You also claim your daughter has unfairly shifted much of the blame for this offending onto you. You have not spoken to her since you were remanded, and you hold her responsible.
[32] There is little, if any, acceptance of responsibility. As observed, I have gained the impression from the report that you find it difficult to see the world beyond yourself. You are assessed to have a medium likelihood of reoffending given your
4 R v LR, above n 1.
5 At [12]–[21]
criminal history, substance abuse record, poor emotional regulation and tendency to conflict with others. You have said you are motivated to rehabilitate. The report notes a failed attempt to engage with the Christchurch Methadone Programme in 2022. The report writer is of the view that the special treatment unit at Christchurch Women’s Prison, however, may be of assistance to you.
[33] In terms of your personal background, it is clear your childhood, as it is described, was “blighted by drug use and sexual abuse from others”. You have experienced domestic violence at the hands of several partners. Experiencing a long custodial sentence at the age of 23 is also said to have taken a toll on you. You have a long history of substance abuse which is detailed in the alcohol and drug report that I have read.
[34] You are now 41 years of age. You still have prospects of rehabilitation but your lack of remorse and insight is indicative of a concerning attitude to others around you, which is no doubt the product of your adverse life experiences to which you have been exposed.
[35] I consider a credit of 10 per cent for what correlation exists between your background, including your addictions, and your offending is the most that can be afforded to you in the circumstances. I say that mindful that you are for sentence for the use of violence against a young child.
[36]There is no indication of remorse.
Minimum Period of Imprisonment
[37] I reviewed the question of a minimum period of imprisonment in my sentence indication decision. Your counsel, Mr Matthews, has addressed the issue in his written submissions. As he states, there are likely to be significant barriers to you having access to children in the future. To the extent your lack of insight and remorse raises concerns, those are factors that can be reassessed at a later date when assessing the risk you pose to the community. Not without some reservations, I consider the question of your eligibility for parole is best left to the parole board, in the ordinary way.
Result – LR
[38]LR, can you please now stand.
[39] On the three charges of causing grievous bodily harm with intent to injure, you are sentenced to four years and 10 months’ imprisonment.
[40]You may stand down.
Sentence – JR
[41]JR, I turn now to the sentencing of you.
Starting point
[42] In my sentence indication decision, I settled on a a starting point of two years’ imprisonment. My justification for doing so is set out in that judgment and I do not intend to repeat those reasons.6
[43] In my indication decision, I noted the difficulty in determining your circumstances at the time. However, I proceeded on the basis that you developed complications with regard to your pregnancy and suffered a miscarriage. The trauma and difficulty associated with that traumatic experience, with little apparent medical oversight, must be taken into account in assessing your culpability. You are not charged with the infliction of any physical injuries or any specific acts of cruelty, nor are you charged with failing to provide the necessaries of life. Your culpability arises from a failure to act. While serious offending, it is markedly less serious than your mother’s offending.
[44] In providing a sentence indication, I was referred to a number of cases which concern the ill-treatment and neglect of children.7 While of assistance, there is a wide variance in the circumstances of those cases and with your offending that makes any
6 R v JR, above n 1, at [22]–[29].
7 Nohe v R [2019] NZHC 1771; S v Police [2019] NZHC 2784; Prince v R [2019] NZHC 1402; Adams v Police [2014] NZHC 42; R v Mead [2002] 1 NZLR 594 (CA); R v M [2022] NZHC 1046; L (CA719/2017) v R [2019] NZCA 676; M (CA522/2016) v R [2017] NZCA 274.
comparative analysis difficult. Having reviewed those decisions again, while acknowledging the increase in the maximum sentence for this kind of offending in 2012, I remain of the view that a starting point of two years’ imprisonment is appropriate.
Personal factors
Prior offending
[45] Turning to your personal factors, you have no significant criminal history beyond three relatively recent convictions for dishonesty offending for which you were sentenced to a year’s supervision. No uplift is sought, nor would one be appropriate.
Guilty pleas
[46] You entered a guilty plea following the sentence indication. The plea was somewhat belated. A 15 per cent credit was and remains appropriate.
Remorse
[47] You are said to be remorseful, and I accept that. However, bare statements of remorse will not often result in credit being granted. I accept, given the nature of the offending, the age of the victim, your familial relationship and the current care arrangements, there is little more you could do to reflect your remorse. Nonetheless, I consider it is adequately reflected in the guilty plea credit.
Youth
[48] I am required to take into account your age in sentencing you today.8 You were 21 at the time of the offending, you are now 24. Credit for youth is a sentencing consideration largely, at least in your case, because of the perceived improved chances of rehabilitation and the heightened impact a sentence is likely to have on you at this stage of your life.9 However, in large part, your relative youth at the time of the
8 Sentencing Act, s 9(2)(a).
9 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77]–[78].
offending is just one aspect of the difficult circumstances of your upbringing and your personal circumstances.
Personal background
[49] You were exposed to severe physical abuse as well as drugs and alcohol as a child. You developed addictions to both at 13, and both your parents have been imprisoned. Your father took his life two weeks prior to your 18th birthday. You have suffered sexual abuse and you were estranged by family members for reporting that abuse.
[50] A psychologist reports that you were never nurtured as a child, and you never saw adult-child relationships that you could emulate. Few adults have ever supported you in the way that they ought to have, and that is likely relevant to your inaction regarding your son’s wellbeing, which needs to be understood against that background. You have had, as it is described in one of the reports, a “lifetime of trauma”.
[51] Your counsel submits, and I agree, there is a causative link between your circumstances and your offending. You were vulnerable to your mother’s influence and control. You lacked the social supports one would expect to be available to a young parent such as yourself , and you never had the necessary role modelling support from family members that others have had. Having read about your mother’s background there is an obvious intergenerational cycle of deprivation and social dislocation. Your offending is sadly reflective of your own life experiences.
[52] Having regard to your relative youth at this time, your difficult and abusive upbringing which has a proximate nexus with your offending, I am satisfied a 20 per cent credit is appropriate.
[53] Application of the combined discounts would result in a 15-month term of imprisonment.
Home detention
[54] Mr Dyhrberg has submitted that prison is a measure of last resort.10 He has referred me to a number of somewhat analogous or comparable cases where home detention has been considered appropriate for this type of offending.11 I noted in my sentence indication that, while subject to further information being made available, there appeared to be little obstacle to your sentence being commuted to one of home detention. I remain of that view. The pre-sentence report has raised no difficulty regarding that being an appropriate outcome and there appears to be no impediment to such a sentence. Accordingly, that is the sentence that I will impose.
Sentence
[55]So, JR, could you please stand.
[56] On the charge of ill-treatment of a child you are sentenced to seven months’ home detention to be served at the nominated address on the basis of the recommended special conditions which are to apply in addition to the standard statutory terms.
Name suppression
[57] You have sought permanent name suppression. Your son has statutory name suppression by virtue of s 204 of the Criminal Procedure Act. The Crown has accepted that publication of your name would inevitably lead to his identification and does not oppose the application.12 That is the reality of the situation.
[58] In the circumstances, the interests of the child outweigh the interests of the public in open justice which ordinarily would prevail. The child shares the same family name as you and the close relationship between yourself and the child is an integral part of the circumstances of this offending. Identification of him is likely in the absence of suppression.
[59]Accordingly, publication of your name is required to be prohibited.
10 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [18].
11 R v M [2022] NZHC 1046; R v H [2021] NZHC 2116.
12 Criminal Procedure Act 2011, s 200(2)(f).
[60] It is also appropriate to permanently suppress LR’s name for the same reason. It needs to be stressed, however, that these orders are not made for the benefit of you or your mother, but for the child. Orders are made accordingly.
[61]You may stand down.
Solicitors:
Crown Solicitor, Christchurch
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS
PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-009-8305
[2024] NZHC 971
THE KING v
LR
Hearing: 29 April 2024 Appearances:
K White for Crown
D J Matthews for Defendant
Judgment:
29 April 2024
SENTENCE INDICATION OF MANDER J
[1] LR seeks a sentence indication in respect of three charges of causing grievous bodily harm with intent to injure. This sentence indication is provided on the basis of
R v LR [2024] NZHC 971 [29 April 2024]
a summary of facts that has been accepted by the parties for the purpose of this exercise.
Factual background
[2] The victim was a four-year-old boy at the time of this offending. In July 2021, his mother, JR, moved with him and his brother into LR’s one-bedroom flat where she was living with her partner.1
[3] JR was pregnant with twins. On 16 July 2021, she went into labour. There were complications and she suffered consecutive miscarriages. She did not seek medical attention. In the weeks following, JR became withdrawn and paid little to no attention to her children. LR (the children’s grandmother) became responsible for their day-to-day care. Over the approximate three-month period the four-year-old was living at the address he was subjected to violence, abuse, and neglect. On 18 September, JR left, leaving her two children in the sole care of their grandmother.
[4] On 7 October, Oranga Tamariki, which had sporadic involvement in monitoring the care and protection of the children, arranged a whanau hui to assess their welfare after it became aware their mother had left the children in the care of LR. When LR and her partner arrived with the victim and his brother for this meeting, a social worker who saw the children immediately called an ambulance.
[5] The little boy was reported as emaciated to the point where he was unable to walk and so traumatised he was unable to express any emotion or to talk. He had numerous bruises, lacerations and scratches over his face and body. A subsequent medical examination revealed fractures of his sternum, ribs, spine and possibly to the pelvis. He had an open gash on his forehead and burn marks on his arm and leg.2
1 LR’s partner pleaded guilty to four discrete charges of assault on the same child and a charge of assault with a weapon. He was sentenced by Dunningham J to one year and two months’ imprisonment.
2 JR faces charges of ill-treating and neglecting the victim which are for trial next month.
Charge 2 – Causing grievous bodily harm with intent to injure
[6] The victim would periodically touch his penis. Inexplicably, LR believed he was masturbating and became enraged. She took the view he would grow up to be a paedophile and had to do something about it. She took a jandal off her foot and struck the victim with force in the genital area, causing bruising around the penis and testicles.
Charge 3 – Causing grievous bodily harm with intent to injure
[7] On multiple occasions when the victim was not listening or had emotional outbursts, LR would pin him to the ground, either face up or face down, and hold him in that position for a sustained period of time, using her knee to keep him there. This resulted in bruises to the victim’s back.
Charge 4 – Causing grievous bodily harm with intent to injure
[8] As noted, a medical examination revealed significant bruising to the child’s torso, arms, legs, a fracture to his sternum and seven compression fractures to his spine. These injuries are consistent with LR holding the victim at waist height and dropping him on the floor in a manner described by JR to police.
Victim impact statements
[9] Victim impact statements have been received from a social worker assigned to the child’s rehabilitation and from his foster parents and paternal grandmother. The victim continues to require regular input from a speech language therapist, occupational therapist, and trauma advisor to manage his day-to-day life. He has been diagnosed with a likely cortical vision impairment as a result of a brain injury.
[10] The victim has periods of extreme fear, and at times is very dysregulated. He requires a closely managed schedule to comply with everyday life and struggles with directed activities. Daily tasks such as brushing his teeth and bathing have posed huge obstacles, and he has a fear of new people. His relationship with his younger brother has been affected. The victim associates him with his trauma which “triggers” him.
It is reported the child requires up to four days recovery to readjust after contact with his sibling.
[11] The victim is building positive relationships with his foster family and is increasing his capacity to engage with others. However, he faces obvious challenges.
Starting point
[12] The lead offending is the grievous bodily harm that resulted in fractures to seven vertebrae and to the victim’s sternum and possible fractures to bony projections of the pelvis on which weight falls when sitting, together with bruising to the victim’s torso, arms and legs. All of these injuries are associated with the victim being held at waist height and dropped. Uplifts are required to be imposed in respect of the other two charges to reflect the overall gravity of the offending.
[13] In cases involving violence against, or neglect of a child under the age of 14 years there are aggravating factors which the Court must take into account to the extent they are applicable.3 A number of these factors are present in this offending:
(a)The defenceless of the victim—the child was aged four and was inherently defenceless. It is apparent he was already developmentally delayed, having not reached normal childhood milestones, which affected his ability to verbally communicate. The victim was extremely vulnerable.
(b)Serious or long-term physical or psychological effect on the victim— the child suffered numerous fractures. As I have already related, he suffers severe trauma from the offending and struggles with day-to-day activities, leaving his home and meeting and socialising with others. The improvements he has made since his placement with a foster family will likely plateau, and the ongoing effects of this offending are likely to continue to be significant.
3 Sentencing Act 2002, s 9A.
(c)The magnitude of breach of relationship of trust—LR is the victim’s grandmother and was the primary caregiver at times during the period of this alleged offending, particularly after her daughter had become withdrawn following her miscarriages and her subsequent departure from the address. LR had an obligation to care and provide for the child, but she did not seek assistance, nor seek medical attention for him. There was a significant breach of trust.
(d)Deliberate concealment of offending from authorities—this offending was only brought to the attention of authorities when LR was required to attend the Oranga Tamariki hui. A failure to obtain medical assistance for the victim can only be interpreted as being motivated by a need to conceal the child’s injuries and distress. The child was totally isolated and had no engagement with anyone else, apart from LR and her co-defendants.
[14] To be added to these aggravating features, at least to the extent not already otherwise covered, is the serious injury caused and the nature of the violence this offending represents. The victim suffered various fractures, which I have previously described. These would have caused him sudden and severe back pain and ongoing pain. The act of dropping the child from waist height was not a single event but was repeated on a number of occasions, seemingly as a form of deliberate punishment. As I have already observed, the psychological trauma combined with the physical injuries are likely to have a long-term disabling impact on the quality of the victim’s life.
[15] Counsel are agreed the appropriate sentencing guidance is provided by Nuku v R.4 There is also no dispute that LR’s alleged offending falls within band 3 of that case, which is reserved for offences of this nature where three or more aggravating factors of the type I have reviewed are present.5
4 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
5 At [38].
[16] Such offending attracts a starting point of between two years and the statutory maximum which, in this case, is seven years.6
[17] Mr Matthews argues the lead charge should attract a starting point of four years’ imprisonment. Whereas the Crown maintains a five-year starting point is appropriate. A number of sentencing authorities have been referred to me. In assessing the merits of their respective positions, the three most relevant decisions are as follows:
(a)Watene v Police7—a starting point of seven years’ imprisonment (the maximum) for a charge of causing grievous bodily harm with intent to injure was reduced to one of six years’ imprisonment. The victim in that case was the appellant’s partner’s son. The offending involved the grabbing of the victim and the banging of his head against a stove and dishwasher, before he was hit and punched on his back and thrown across a room into a wall. The victim was rendered unconscious and suffered a bleeding nose, bruising to his head, face, limbs, abdomen, shoulder and lumbar spine area. He also lost a tooth and, most seriously, suffered a subdural haematoma and brain swelling. He was admitted into intensive care and remained in hospital for 14 days.
(b)R v Hall8—this was a successful Crown appeal against a sentence of causing grievous bodily harm with intent to injure and a representative charge of causing such harm with reckless disregard. A starting point of three years and three months’ imprisonment was uplifted to a four- year starting point. The victim was the defendant’s infant daughter. The offending spanned a four-month period from the victim’s birth to the discovery of the injuries, which consisted of fractures to her arm and both legs, and bruising to her left leg and around her pelvis. The defendant admitted bending her leg behind her back on several occasions “in blind anger” and squeezing her hard against his own
6 Nuku v R, above n 4, at [38].
7 Watene v Police HC Whangarei AP11/03, 26 May 2003.
8 R v Hall [2012] NZHC 2070.
body. The child spent extensive periods of time in hospital and had difficulty learning to walk but had no long-term physical effects from the offending. Because this was a Solicitor-General’s appeal, it was noted the Court was constrained to apply a four-year starting point as proposed by the Crown but considered a significantly greater one would have been warranted.9
(c)Strydom v R10—a starting point of six years’ imprisonment was upheld, although for the more serious charge of causing grievous bodily harm with intent to cause grievous bodily harm. The victim was the appellant’s six-week-old son. He suffered a fractured skull and leg, and bruising to the eye, arm and finger. The appellant had lost his temper and hit the victim in the head and kicked him in the body and leg. No medical attention was sought. The aggravating factors were identified as the serious injury inflicted, the attack to the head, and the victim’s vulnerability and breach of trust.
[18] Mr Matthews argued that the offending in Watene was significantly more serious than the present offending. He highlighted the attacks to the head and the injuries that were sustained, including a brain injury. It was also noted the charge in Strydom was more serious. I have reviewed a number of other sentencing decisions involving offending on a young child, these include Wilson, Moran and Tiori.11 I have concluded that a starting point no greater than five years is appropriate for the lead charge.
[19] I accept the offending in Watene was more serious but that is a case of some 20 years vintage, imposed prior to the enactment of s 9A of the Sentencing Act. That provision reflected both Parliament and the community’s concern with violence inflicted against children and, as was noted by the Court of Appeal, signalled that tougher sentences may be required for such offending.12
9 R v Hall, above n 8, at [20].
10 Strydom v R [2018] NZHC 358.
11 R v Wilson [2004] 3 NZLR 606 (CA); R v Moran [2014] NZHC 966; and R v Tiori [2023] NZHC 1868.
12 R v Pene [2010] NZCA 387 at [12]–[13].
[20] The vulnerability of the victim in the present case could not have been more profound. He was four years old and clearly incapable of protecting himself. He was entirely isolated and LR became his primary caregiver. As the child’s grandmother, her role was to care and protect him, but she did the opposite. Her offending represents a gross breach of trust. The physical and psychological harm caused to this child is significant and likely to be long-lasting. The injuries inflicted on the child were the product of intentional conduct.
[21] Turning to the other two charges, I consider they should attract a combined uplift of 18 months’ imprisonment having regard to the ongoing nature of that offending and its repetition which caused discrete injuries to the child. This results in a starting point of not greater than six and a half years which I consider properly reflects the overall gravity of LR’s offending.13
Personal factors
Prior offending
[22] Turning to factors personal to LR, it is noted she has a not insignificant record of criminal offending, although, with one exception, it is not marked by serious violence. She does have a conviction for manslaughter in 2007, but it is not suggested to be evidence of a proclivity for violence that can be linked with the present offending against a child, albeit also of a violent nature. No uplift is sought and none is applied.
Guilty pleas
[23] LR faces trial in approximately two months’ time. If any pleas were to be entered, they can only be described as belated. A credit in the region of 15–20 per cent is suggested by Mr Matthews; 10–15 per cent is thought appropriate by the Crown. While I accept the present proposal would be of benefit to all parties in terms of trial resolution and will be the product of discussions centred on the appropriate level of charge, I consider the timing of the entry of any pleas at this stage of the procedural timeline limits the discount that can be afforded, at best, to 15 per cent.
13 Sentencing Act, s 85.
Personal mitigating factors
[24] I acknowledge other discounts could be applied depending upon the information provided regarding matters personal to LR, which Mr Matthews acknowledges can only be assessed at the time of sentencing upon receipt of appropriate reports.
Minimum period of imprisonment
[25] The remaining issue is the question of whether a minimum period of imprisonment (MPI) should be imposed. It is put forward by the Crown as something the Court may wish to consider. It is opposed by Mr Matthews as being unnecessary. He points to the entry of guilty pleas as indicating a level of insight by LR, or prospective guilty pleas as indicating a level of insight by LR into the nature and seriousness of her offending, which I interpret as a claimed indication of potential rehabilitative prospects. He also refers to the lack of any entrenched history of violence that would suggest a need for denunciation and deterrence, or additional protection of the community, notwithstanding the previous conviction for manslaughter.
[26] A sentencing Court may impose an MPI if satisfied the one-third period applicable under the Parole Act would be insufficient to meet the purposes of accountability, denunciation, deterrence and/or protection of the community.14 The Court may have regard to the purposes and principles of sentencing and the applicable aggravating and mitigating factors.15 Consideration of the latter does not amount to double-counting.16 The Crown points to the aggravating features in this case, in particular the level of violence, the serious injury and the vulnerability of the victim, in support of its submission that the non-parole period that ordinarily applies to a determinate sentence will not be sufficient.
[27] The features of this offending, identified by the Crown, place the sentencing purposes of accountability and denunciation to the fore, but I am doubtful whether
14 Sentencing Act, s 86(2).
15 R v Nguyen [2009] NZCA 239 at [33]–[34].
16 R v Gordon [2009] NZCA 145 at [46].
these objectives cannot adequately be achieved by the length of sentence that will be imposed should LR be convicted. LR’s violence was against her grandson who is no longer at risk from her, and any involvement by her with young children would have to be with the supervision and oversight of Oranga Tamariki. However, in the absence of information regarding LR’s personal circumstances which will likely inform her rehabilitative prospects, I consider it would be premature to make any final decision regarding an MPI beyond the present indication of my current thinking.
Sentence indication
[28]Accordingly, I indicate the following:
(a)An overall starting point not greater than six years and six months’ imprisonment.
(b)No uplift for LR’s criminal history.
(c)A guilty plea discount of 15 per cent.
(d)Further credit may be extended at sentencing for other personal mitigating factors after further information has been made available.
(e)Any final decision regarding a MPI will have to await receipt of that material.
Solicitors:
Crown Solicitor, Christchurch
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS
PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-009-8305
[2024] NZHC 1276
THE KING v
JR
Hearing: 15 May 2024 Appearances:
A L Mills for Crown
P N Dyhrberg for Defendant
Judgment:
15 May 2024
SENTENCE INDICATION OF MANDER J
R v JR [2024] NZHC 1276 [15 May 2024]
[1] JR seeks a sentence indication in respect of a charge of ill-treatment or neglect of a child.1 This sentence indication is provided on the basis of a summary of facts that has been accepted by the parties for the purpose of this exercise.
Factual background
[2] The victim was a four-year-old boy at the time of this offending. In July 2021, his mother, JR, moved with him and his younger brother into her mother, LR’s, one- bedroom flat where she was living with her partner.2
[3] LR and her partner occupied the only bedroom and JR slept on a couch in the living room. The victim’s brother slept in a cot in front of the couch. The victim initially slept in the front door area on a folded up duvet with a couple of blankets and a pillow on the vinyl floor. Because his mother and grandmother were concerned that members of the public might see the child sleeping there, his bed was moved to the bath in the bathroom. The bedding he was provided with was never washed and was covered in urine due to the victim’s difficulties with toilet training.
[4] JR was pregnant at the time she moved into her mother’s address. There seems to have been little medical oversight. She suffered a miscarriage for which she did not seek medical attention. In the weeks that followed, JR is described as having become withdrawn and paid little to no attention to her children, leaving her mother in charge of their day-to-day care.
[5] The children had no routine in their life. They did not go to any form of day care or have any contact with anyone outside the flat. They were simply allowed to stay up watching television into the early hours of the morning.
1 Crimes Act 1961, ss 195(1) and (2)(a).
2 LR has pleaded guilty to three charges of causing grievous bodily harm to the victim with intent to injure (two charges are representative). A starting point not greater than six and a half years has been indicated to her and her sentencing is set down for 28 August 2024; R v LR [2024] NZHC 971. Her partner pleaded guilty to four discrete charges of assault on the same child and a charge of assault with a weapon. He was sentenced by Dunningham J to one year and two months’ imprisonment.
[6] On occasions during this period, JR witnessed her mother assaulting the victim and saw significant bruising on his body from the assaults. This included sustained bruising to the child’s face which was said to have been caused by the child falling onto bath taps, but which JR believed was done on purpose. The child was yelled at and abused by his grandmother. On “a couple of occasions”, JR observed her mother holding the child at waist height and dropping him on the floor before pretending it was an accident.
[7] The child was not allowed to move from the bath for long periods of time despite his obvious distress. He was observed with his lip quivering, he could not talk and would stare blankly at his mother who would leave him there.
[8] On 18 September 2021, JR left the address, leaving her two children with her mother notwithstanding her awareness of the victim’s abuse and suffering, and that he was likely to continue to experience suffering or sustain injury from continuing to be in her mother’s care. This is apparent from a number of texts JR sent to her mother in which she threatened to contact the child welfare authority. I set out the texts from the 24th of September, 27 September and 29 September.
[9]On 24 September 2021, JR text LR as follows:
I wanna know if my kids are okay or have you killed [the victim] n tryna cover your fucking ass if you don’t reply Im gonna get in contact with cyfs aye this ain’t cool
On 27 September 2021, JR text LR as follows:
Well I wanna know when I can get my kids as I’ll be ringing cyfs in the morning
On 29 September 2021, JR text LR as follows:
I don’t care what you do with [the victim] maybe it’s punishment for all the years you missed out on my life yeah been watching n reading up on a lot of shit kinda all making sense, I’m paying for all my family’s sins n that’s hard for me to say as I don’t even believe in this shit
On 4 October, JR contacted Oranga Tamariki by text saying:
She [LR] is trying to say she is on the coast again when she isn’t and she’s blocked me she still will not give me any info about my kid]
[10] On the face of the last of those texts, JR appears to express indifference about what her mother may be doing to her child, although JR maintained to police she was “trying to get a response out of LR” and that she did care about her child.
[11] On 4 October 2021, JR contacted Oranga Tamariki which had previous sporadic involvement in monitoring the care and protection of the victim and his younger brother while in their mother’s care.
[12] On 7 October, Oranga Tamariki arranged a whanau hui to assess the children’s welfare after it became aware their mother had left the children in the care of their grandmother. When LR and her partner arrived with the victim and his brother for this meeting, a social worker who saw the children immediately called an ambulance.
[13] The little boy was reported as emaciated to the point where he was unable to walk and so traumatised he was unable to express any emotion or to talk. He had numerous bruises, lacerations and scratches over his face and body. He was transported to hospital for urgent medical treatment. There, his body weight was found to be two standard deviations below the mean average and he was severely traumatised to the point he was psychologically shut off and unable to express any emotion or utter a single word. A subsequent physical examination revealed the following:
· Severe malnourishment, with poor muscle mass, limited fat stores, wasted buttocks and thinning hair.
· Severe psychological trauma with no emotional response.
· Multiple bruises, lacerations and scratches all over his face, including on both sides around his eyes, over his cheekbones and over his jawbone.
· Multiple lacerations down the midline of his face, over his nose and upper lip and chin.
· Bruising over the nape of the neck.
· Extensive bruising of various shades on each of his limbs, including a circular lesion on his forearm consistent with a burn.
· Multiple areas of bruising throughout his back and spine, including the length of his spine, and bruises laterally over his shoulder blades.
· A lesion with a circular pattern on his foot consistent with a burn.
[14] A medical examination revealed fractures of his sternum, ribs, and possibly to the pelvis. He has also been diagnosed with a likely cortical vision impairment as a result of a brain injury. There were seven compression fractures to his spine.
[15] When later spoken to by the authorities, JR could not explain why she had left her children with her mother or why she did not attempt to get help prior to contacting Oranga Tamariki. She provided no explanations for her actions or, more accurately, her inaction.
[16] JR saw a psychologist in the latter part of last year, after being charged with this offending. She disclosed further details of her situation at this time. She said that in July 2021, when she was pregnant, she experienced vaginal bleeding which frightened her. She said she could not go to the hospital because of the then current COVID lockdown and that her midwife had stopped contacting her so, instead, she went to her mother’s house with her two children. A scan undertaken on 16 July 2021 confirmed that JR was pregnant with one six to eight week foetus being visible.
[17] A second scan, carried out on 16 August 2021, showed the foetus had died. It was estimated to have died at eight weeks’ gestation. There is a dearth of information regarding JR’s condition, which is likely indicative of a lack of, or little, medical oversight during this period. JR reports having suffered very heavy bleeding and cramps during this period. She said she was frightened and was only focused on what was happening to her. She provided graphic detail to the psychologist of having
aborted the foetus at home. It appears she believed there was a second foetus but that appears unlikely.
[18] JR describes being in a distressed state and having suffered acute pain during this time. She reports becoming overwhelmed by her mother’s control of her, which included her taking her phone, and that she was increasingly isolated. She wanted to contact her partner, who was the father of the two children with whom she had been in a long-term relationship. This resulted in her leaving her mother’s flat on 18 September.
[19] This sentence indication hearing was adjourned to allow the Crown to clarify the particulars of the charge and the allegations of criminal responsibility it was making against JR. It led to the Crown amending the charge to one of omitting to discharge or perform the legal duty of a parent to protect their child from injury, and the removal of an allegation of failing to “provide necessaries”. The Crown has confirmed, for the purpose of the sentence indication, that JR’s culpability is limited to the period starting 18 September, when she left the child with his grandmother at her flat, knowing he was likely to experience suffering or be injured from continuing to be in her care, and the date of Oranga Tamariki’s intervention on 7 October.
Victim impact statements
[20] Victim impact statements have been received from social workers assigned to assist the child’s rehabilitation and from his foster parents and paternal grandmother. The abuse and neglect this child has experienced has had a profound effect on him. Despite the progress he has made as a result of various interventions, he remains very dysregulated and suffers periods of extreme fear which impacts on his behaviour. He struggles with directive activities, dealing with new people, and with understanding information and communicating his feelings and needs.
[21] The victim requires a closely managed schedule to cope with everyday life and daily tasks such as brushing his teeth and bathing. He continues to need the regular services of a speech language therapist, occupational therapist and trauma advisor to manage his day-to-day life. The victim has built positive relationships with his foster family and his capacity to engage with others is improving. However, he faces very
real developmental challenges and his present progress is likely to plateau. His relationship with his younger sibling is difficult as he associates him with his trauma which tends to “trigger” him. He is reported to have required up to four days recovery to readjust after having contact with his younger brother.
Starting point
[22] The victim’s grandmother and her partner have been convicted of various charges that involve the infliction of physical harm to this child. JR’s culpability arises from her failure to protect him after she decided to leave the child with her mother. JR effectively abandoned the child to persons she knew were physically assaulting him and inflicting psychological and physical harm. This failure to protect the child and seek assistance for him was grave. However, it must be assessed against JR’s medical and psychological state at the time.
[23] In cases involving the neglect of a child the Court is directed by the Sentencing Act to take into account various aggravating factors:3
(a)The defenceless of the victim—the child was aged four and inherently helpless. He was already developmentally delayed, having not reached normal childhood milestones, including deficits in verbal communication. There are indications the child is autistic. The victim was therefore extremely vulnerable.
(b)Serious or long-term psychological effect on the victim—the child has suffered severe trauma from this neglect and ill-treatment. He struggles with day-to-day activities and has significant communication and socialisation deficits. The ongoing effects of his abuse and ill- treatment, as traversed in the victim impact statements, will continue to be significant.
(c)The magnitude of breach of relationship of trust—JR is the victim’s mother and responsible for the child’s primary care. She essentially
3 Sentencing Act 2002, s 9A.
abandoned the child into the hands of people she knew were harming her child. Whatever difficulties she was experiencing at the time, they did not override her obligation to report the situation and get assistance. JR witnessed physical assaults on her son by his grandmother, yet she left him with that person for a period of some weeks before contacting the authorities without any apparent effort in the interim to relieve the child’s suffering. The offending represents a significant breach of trust.
[24] Having identified the aggravating features of the offending, I turn to mitigating aspects that are required to be taken into account when assessing JR’s overall culpability. As I have mentioned, she went to her mother’s flat after becoming pregnant and took her children with her, seeking support and care after her partner had not provided the support and help she required. It is not entirely clear why greater social and medical support was not available or sought by her at this time. There is some reference to COVID restrictions, but that is not at all clear. In any event, it appears that, shortly after moving to her mother’s flat, she began to bleed and developed complications with regard to her pregnancy.
[25] It is difficult to get an accurate narrative on what was occurring as it is largely self-reported and some details are difficult to reconcile. It is not clear what medical assistance was provided to her at this time. From JR’s report, it would appear the foetus was aborted at home. That would have been an extremely traumatic and difficult experience for JR and must be taken into account when assessing her ability to protect the child during this period when she herself was so vulnerable. In large part this is why the focus of her culpability is on her failure to act after she left the address. Additionally, there is the extent to which her lack of action was the result of her allowing herself to be controlled by her mother at this difficult time.
[26] JR is not charged with the infliction of any physical injuries and no specific acts of physical cruelty or violence are alleged to have been committed by her. Nor does the charge she faces include an allegation of failing to provide the necessaries of life. JR’s culpability arises from her failure to discharge or perform the essential duty of a parent to protect her four-year-old son. In terms of the charge she faces, that failure is limited to leaving the child with her mother but is one that appears to involve
an element of indifference bordering on callousness having regard to the significant delay before JR contacted the authorities, which in turn appears to have been motivated out of her conflict with her mother, rather than the welfare of the children.
[27] I have been referred to a number of cases which concern the ill-treatment and neglect of children.4 Inevitably, the circumstances of each of these cases vary and significantly so, both as between themselves and with the present offending. In the main they involve conduct that is marked by neglect and maltreatment, rather than the direct infliction of physical injuries, but none are directly comparable with the present situation which is limited to the abandonment of a child by a mother to an environment in which the child is being seriously harmed. Drawing comparisons between these cases of abuse with the present offending in order to glean some guidance is a difficult exercise and can only realistically be done in very broad terms.
[28] Mr Dyhrberg sought to draw on the indicated starting point of a six years and six-month term of imprisonment for LR’s offending for the purpose of calculating a starting point for JR’s offending based on a percentage of that indicated sentence. However, JR’s culpability does not arise as a secondary party to her mother’s offending, which concerns the infliction of physical violence on the child. It is not a case of comparing their respective levels of culpability for like offending.
[29] I must be mindful the maximum sentence attaching to this type of offending was increased from five years’ imprisonment to 10 years in 2012 to mark the grave nature of such offending which, as in this case, often results in long term psychological trauma and/or the aggravation of developmental issues for its young victims. However, JR’s culpability is one of omission. It is limited to her failure to protect the child. Having witnessed severe assaults on him and knowing the harm being suffered by her son, she abandoned the infant to that environment. I must also take into account the considerable difficulties she was experiencing around this time as a result of her lost pregnancy, although, as already noted, JR’s offending is limited to the
4 Nohe v R [2019] NZHC 1771; S v Police [2019] NZHC 2784; Prince v R [2019] NZHC 1402; and Adams v Police [2014] NZHC 42; R v Mead [2002] 1 NZLR 594; R v M [2022] NZHC 1046; L (CA719/2017) v R [2019] NZCA 676; M (CA522/2016) v R [2017] NZCA 274.
abandonment of the children and the failure to act after she had left her mother’s address. I consider a starting point of two years’ imprisonment is appropriate.
Personal factors
Prior offending
[30] Turning to factors personal to JR, she has no significant criminal history beyond three relatively recent convictions for dishonesty offending for which she was sentenced to a year’s supervision. No uplift is sought, nor would one be appropriate.
Guilty pleas
[31] JR faces trial next month. If any plea is to be entered, it can only be described as belated. There has been some delay in being able to provide her with a sentence indication hearing. Her request for a sentence indication came shortly after that of her co-defendant, in respect of whom a 15 per cent discount was provided. While perhaps generous, I can indicate a similar credit should a guilty plea be entered.
Personal mitigating factors
[32] Any final discount for personal mitigating background matters must await the receipt of all relevant material. However, I have a psychologist’s report available to me which I accept discloses a causative link between JR’s offending and her upbringing, personal history and circumstances. On the information currently available to me, it would warrant a further 15 per cent discount.
Sentence indication
[33]Accordingly, I indicate the following:
(a)A starting point of two years’ imprisonment.
(b)No uplift for JR’s criminal history.
(c)A guilty plea discount of 15 per cent.
(d)Credit would be extended at sentencing for personal mitigating factors which would not be less than 15 per cent.
[34] This results in an indicated sentence of 16 months’ imprisonment. If JR has a suitable address available to her to serve a sentence of home detention, there presently appears to be no obstacle to the term of imprisonment being commuted to such a sentence. However, that would ultimately depend on all the information available to me at sentencing.
[35] This sentence indication is available to JR for a period of five working days from today’s date.
Solicitors:
Crown Solicitor, Christchurch
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