R v Maru
[2023] NZHC 790
•31 March 2023
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2022-016-001225
[2023] NZHC 790
THE KING v
STELLA INIA MARU
Hearing: 31 March 2023 Appearances:
C Stuart for the Crown
T Epati for the Defendant
Sentencing:
31 March 2023
SENTENCING OF GRICE J
Introduction
[1] Ms Maru, you appear for sentencing today having pleaded guilty to manslaughter1 and attempting to pervert the course of justice.2
The offending
[2] The manslaughter charge is for causing the death of Lawrence Rangiwai by assault. You were also charged with attempting to pervert the course of justice by telling two of the victim’s relatives to lie to police about what happened to him.
1 Crimes Act 1961, ss 160(2)(a), 171 and 177 — maximum penalty life imprisonment.
2 Section 117(e) — maximum penalty seven years’ imprisonment.
R v MARU [2023] NZHC 790 [31 March 2023]
[3] You lived with your partner, your partner’s two children and your partner’s father, who was the victim. The victim at the time in August 2021 was 73 years old. He had been in poor health, he had received treatment for cancer in early 2021, he was frail, arthritic and unable to look after himself, he was in the full-time care of you and your partner.
[4] At about 8 am on 8 August 2021 you and your partner took the children and a child of close family friends out. When you returned with two of the children — your partner had gone to the friends’ home, you went home alone with the children — you found that the victim had not done what you had expressly asked him to do when you left and in particular he had not showered.
[5] You told one of the children to go and get your partner, who was at the family friends’ address up the road. The children present watched the altercation or the argument and the dispute that erupted. They told you to stop.
[6] You lifted the back of the rocking armchair the victim was sitting in and pushed him out of it onto the floor. When he tried to climb back into the chair, you pushed him out again. You then strangled him until he struggled to breathe. You applied pressure to his throat for some seconds before letting go.
[7] You picked up a dining chair and threw it, it hit the victim in the back. When he stood up with his back to you, you then pushed him with two hands, which caused him to propel forward towards the ranch slider door in the lounge. He fell into the window of the door, hitting his forehead as he fell and causing his neck to break. This fractured two of the cervical vertebrae and that injury damaged his spinal cord and stopped the oxygen flow to his brain.
[8] Your partner shortly returned home after that and saw the victim lying on the ground and heard you telling him to get up. He also heard his father say that you had been punching and choking him. Your partner had told the victim to stand up and asked him whether he could move. The victim said he could not and pointed to his neck. The victim became progressively paler and eventually unconscious.
[9] The ambulance was called and there was some delay in getting that there, not because of any fault of yours or the friends who came around, but while you were waiting for that, attempts were made to give CPR to the victim by a friend who had some ability in that area.
[10] The ambulance arrived at about 11.05 am. You told the ambulance drivers that you had pushed the victim. The ambulance staff secured the victim’s airway, recovered a pulse and took him to the hospital. The victim did not recover and died. He sustained bruising or a haematoma above his right eye, fractures to his second and third cervical vertebrae at the base of his skull, and bleeding under these vertebrae as the spinal cord was cut.
[11] While you and your partner were waiting at the hospital, you both agreed to lie to the police about what happened and to get the children to lie as well. This is the basis for the attempting to pervert the course of justice charge. You told police that you were yelling at the victim for not showering and that he had walked a few paces, and fallen backwards to the ranch slider, tripping over a vacuum cleaner pipe, twisted as he fell and hit his head on the window. You and your partner told the children to tell that story or otherwise you would go to jail and they would not see their baby brother or sister born. You, your partner and the children gave statements to the police to that effect.
[12] Further police inquiries revealed inconsistencies. At a further interview, you ultimately confessed to punching the victim, throwing a chair at him and pushing him into the ranch slider window. You also confessed to telling others to lie about what happened.
Impact of offending
[13] We have heard four victim impact reports read out today and I have read the victim impact report from another son of the victim. The victim’s older sister describes, through her report, still having trauma from what she read about the incident in the newspaper and presumably your role in it. She feels depressed and wakes from nightmares. She comments on the emptiness she feels in losing her younger brother. Two of the victim’s children tell me about the heartbreak of losing their father, one of
them says his entire world was “shattered” when he found out that you were arrested and charged with his father’s death given the closeness of the whānau. You were at the tangi at a time when it was not known that you had been responsible. This has had a significant effect on the whānau, which is ongoing.
[14] The victim’s daughter says her life will never be the same again. She says because of the way the victim died, she keeps imagining his last moments and cannot sleep properly because of it. The victim’s niece, on behalf of her mother, says her mother was extremely devastated at her brother’s passing and did not understand why her brother died in the way he did.
[15] It is apparent that Mr Rangiwai senior, the victim, lived a full and rich life. He was much loved by not only his immediate family but the extended whānau. I heard comments about him always being willing to pitch in at family occasions and do the chores. He had a career in the Army serving overseas for his country and most recently he had assisted in the firefighting in Australia when he had been injured. The victim’s son says Anzac Day will never be the same for the family.
Personal circumstances
[16] Ms Maru, you are 26 years of age. You have no previous convictions, to your credit, aside from a breach of bail which relates to the present matter.3
[17] You were remanded for sentencing on bail, and during that time, your defence counsel, Ms Epati, obtained a psychologist report and a number of other reports which I will refer to in my sentencing.4
[18] The cultural report that was obtained says that you whakapapa to Ngāriki Kaipūtahi Iwi. You were mainly raised by your mother but moved around because of her work. You said your father used alcohol and physically abused your mother. You said you were not good at school although you achieved some subjects in NCEA and University Entrance. You completed a Business Administration course at Polytech.
3 R v Maru HC Gisborne CRI-2022-016-1225, 17 October 2022 (Minute of Isac J).
4 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 38(1)(c)(d).
[19] You described growing up around a lot of alcohol and partying but experienced no violence. There was some abuse in your past which is referred to in the psychological reports. You do have a history of substance abuse and acknowledged that your alcohol use could be problematic. You have had counselling for some of those issues.
[20] You told the report writers that you have anger problems and would previously get very angry depending on the situation, but you denied being violent toward other people. You reported that prior to and leading up to the offending you had noticed that your aggression had increased and you felt you had little support while you were pregnant, looking after the children and the victim. You had been of the view that the victim really needed more care and needed to go to a rest home or care home but understood that the whānau were against this. You described your general relationship with the victim as good and when you were angry with him, you would yell at him but he would walk away.
[21] You agreed with the police summary of facts and your counsel has clarified despite some confusion introduced in the reports, that you accept unconditionally the account of the incident as set out in the summary of facts.
[22] I note that there are various references in the mental health report, suggesting you would benefit from therapy which could be facilitated and monitored by the psychological service. I note you have already taken some steps to address some of the mental and psycho-social issues that have been isolated by, in particular, Ms Brindley, the psychologist. You have attended a course already to deal with your difficulty over power issues and your response to those types of issues, including through aggression. In addition, Ms Epati said in her submissions that you have attended a psychologist, which is intended to be another step in seeking assistance dealing with the issues that you are grappling with.
Submissions of the parties
Crown submissions
[23] The Crown submits in relation to the starting point for this offending that a starting point in the range of six-and-a-half to seven years’ imprisonment is appropriate for the manslaughter charge, with a cumulative starting point for the attempting to pervert the course of justice charge of two-and-a-half years’ imprisonment. The Crown accepts that several discounts will be available to you for factors personal to you, including your guilty plea and previous good character. I heard submissions on those this morning from Mr Stuart and Ms Epati.
Defence submissions
[24] In relation to the starting point Ms Epati submits that I should take a more nuanced approach when looking at comparative cases. She emphasised that none of these will be exactly the same as this case but that they do provide guidance in setting the sentence. Ms Epati submitted the start point is the act of “one push” causing death, then moving to take into account comparable cases which deal with immediately preceding assaults as part of the same incident. That would result in a nominal starting point of between four and four-and-a-half years’ to five years’ imprisonment for the manslaughter charge. As I have said, that incorporates the recognition of a lower level of culpability as a result of the mental health issues which Ms Epati said affected your response to the stress situation in which you found yourself. Therefore, she submits that starting point should therefore be in the range of 4 to 4.5 years.
[25] In respect of the attempting to pervert the course of justice charge, Ms Epati submits a modest uplift of four to six months’ is appropriate. She also contends for discounts for a number of mitigating factors which are personal to you, including a number of those accepted by the Crown as applicable.
Approach to sentencing
[26] I now turn to the approach I take in sentencing. I follow a general two-step approach which the courts have endorsed in Moses v R.5 The first step is to calculate the starting point, incorporating the aggravating and mitigating factors of the offence, which are the features which add to or reduce the seriousness of the conduct and criminality involved. The overall objective is to adopt a starting point reflecting the culpability inherent in the particular offending.6
[27] At the second step I then apply any uplifts and discounts to the starting point to reflect aggravating and mitigating personal factors which are personal to you, as well as any guilty plea discount, to reach an end sentence.
[28] The terms imposed for the two separate charges will be cumulative. That is that they will need to be served one after the other as opposed to at the same time. That is because the attempt to pervert the course of justice, while related in one aspect to the manslaughter charge, occurred separately. The perversion of the course of justice offence and the manslaughter offence are entirely different kinds of offences and need to be accounted for separately. There is no disagreement as to that approach by counsel.
[29] In sentencing you I take into account the principles and purposes of sentencing under the Sentencing Act 2002. In this case I consider the purposes of sentencing most relevant are holding you accountable for the harm you have done, deterring you and others from committing this sort of offending, and assisting you in your rehabilitation.
Starting point — manslaughter
Relevant law
[30] There is no tariff case as both counsel have submitted for manslaughter. This means there is a wide range of circumstances that can give rise to a conviction of manslaughter. It is difficult to provide any standard guidance for sentencing. The
5 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
6 Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [28] and [32].
common feature in manslaughter cases is unintended death because of an unlawful act. I accept Ms Epati’s submission that as such, the nature of the act causing the death is critical to an assessment of culpability within a particular context.
[31] Mr Stuart for the Crown and your counsel have both referred me to a number of cases for assistance in determining an appropriate starting point for the manslaughter. In doing so, I keep in mind the Court of Appeal’s comments in Turi v R that due to the fact that in cases of manslaughter death are so wide, they occur in an “infinite variety of circumstances” that while “[s]ome guidance is available from other cases … ultimately, the sentence is dictated by an evaluation of culpability within the particular context”.7 That is what I must do.
[32] In this case, the unlawful act causing death was an assault in the form of a forceful push causing the victim to hit his head on the window, causing fractures to his spine. However, there were a series of other assaults preceding this final push, including punches to the victim’s body and head, sustained verbal abuse, pushing the victim multiple other times and choking him. I now turn to the cases which have been cited as being similar in some respects to this case.
[33] In R v O’Brien, the defendant confronted the 78-year-old victim after a minor collision between their vehicles.8 The defendant pulled the victim from his car, grabbed his clothing, pulled him around the road, striking him a number of times about the face and body and pulling him backwards and forwards while striking the victim as he tried to back away. The defendant pushed the victim backwards with both hands, the victim fell backwards and hit his head on the concrete kerb, resulting in his death. The Judge adopted a starting point of four-and-a-half years’ imprisonment, considering the case was “more serious than those cases where a single blow or push has led to the death of the person assaulted.”9 In that case, her Honour noted the assault on the victim, who was vulnerable due to his age, was unprovoked and
7 Turi v R [2014] NZCA 254 at [11].
8 R v O’Brien HC Tāmaki Makaurau | Auckland CRI-2009-004-11941, 29 Hepetema | September
2009.
9 At [24].
sustained, and continued despite the victim’s apology and attempt to back away from the assault.10
[34] In R v Hokai, the 59-year-old victim had significant mental and physical problems.11 He lived with the defendant and her family who were the caregivers. They considered themselves whānau. The defendant became angry after the victim lost control of his bladder, punching the victim several times in the stomach. He kicked the victim after the victim fell to the floor, and stomped on his chest, causing a punctured lung. This resulted in the victim’s death three days later. The defendant tried to wash and clean the victim during the intervening period, but did not provide medical treatment or call for medical treatment for the victim, despite the victim being incapacitated, immobile and apparently in considerable pain. There a starting point of nine-and-a-half years’ imprisonment was taken.
[35] In R v Te Pana, the appellant became angry with the victim while drinking alcohol and punched him a number of times to the head and face, resulting in injuries.12 The Court of Appeal confirmed in that case a range of seven to eight years’ imprisonment.
[36] The Court of Appeal has noted that the “one punch” manslaughter cases will often attract a starting point of three to four years’ imprisonment,13 and that the range is higher where there is an intention to cause really serious harm to the victim.14 Cases demonstrate that the starting points in the “one push” manslaughter cases will be somewhat lower than those in “one punch” cases.
[37] For example, in Mouat v R the Court of Appeal said a starting point of 22 months (under two years’ imprisonment) where the defendant pushed her intoxicated husband out the front door of her house in an attempt to prevent him from entering, causing him to fall backwards and hit his head on concrete, was appropriate.15
10 At [24].
11 R v Hokai HC Tāmaki Makaurau | Auckland S4/03, 2 Mei | May 2003.
12 R v Te Pana [2014] NZCA 55.
13 Murray v R [2013] NZCA 177.
14 R v Tai [2010] NZCA 598.
15 Mouat v R [2017] NZCA 603.
[38] Similarly, in R v Paku the defendant pushed the victim to the ground with both arms outstretched at full force.16 The Judge considered the push there was not a “lesser act of violence than a punch” and adopted a three-year starting point.
[39] In R v Gray there had been preceding arguments and both parties were involved in aggression.17 Later in the evening they met and the victim struck out at the defendant, who responded by forcefully shoving the victim, causing him to fall backwards and strike his head. The Judge there adopted a three-year starting point.
[40] Where the offending involves preceding assaults, the offender’s culpability is usually taken as higher. I have referred to a number of those cases. I also refer to the decision in R v Gardner, where the Judge adopted a five-year starting point where the defendant punched his 68-year-old father three times with force, with at least one sufficient to cause the victim to become unconscious and ultimately result in his death.18
[41] In R v Harrison the Judge adopted a starting point of four years and nine months where the defendant stuck the victim multiple times about the head and pursued him into the house before striking a “forceful blow” to the mouth.19 The defendant pushed and struck another person who had tried to intervene and got in his way. The Judge in that case noted there had been multiple opportunities for the defendant to cool off, by others intervening, but that the defendant had undertaken a sustained assault and pursued the victim.
[42] As you will see, there a range of cases but none are exactly the same as this one.
Aggravating factors of the offending
[43] I consider there are several factors aggravating the seriousness of your offending in this case.
16 R v Paku HC Kirikiriroa | Hamilton CRI-2005-019-6408, 7 Hepetema | September 2006.
17 R v Gray [2019] NZHC 2364.
18 R v Gardner [2021] NZHC 3174.
19 R v Harrison [2014] NZHC 3115.
[44] First, it is accepted the vulnerability of the victim is a significant aggravating factor here. The victim was particularly vulnerable due to his age and health. He was frail, arthritic, and unable to look after himself, which of course, you knew.
[45] I also consider there was a breach of trust here. The victim had been in the care of you and your partner for some time. You were his caregivers. He trusted you to do that. I accept the Crown’s submission he was entitled to feel safe in that environment and the violation of that trust is an aggravating factor here.
[46] Finally, I also consider the extent of violence must be taken into account. The ultimate push that caused the victim to fall back and break his neck was the final act in a sustained assault involving multiple elements. I note the victim suffered abrasions as a result of these preceding assaults, and while the reports do not indicate he had significant injuries from the assaults in their own right, nevertheless as the Crown has pointed out the physical signs of choking are often not visible and it is clear that that was a serious incident.
[47] I also note the offending occurred in the presence of children. This has been a factor in a number of cases, it is particularly relevant here. You remain the caregiver of one of those children and have been for the past 19 months since the incident occurred. In the circumstances here and in the context which I refer to below, I do not consider significant weight should be given to the fact that it occurred in the presence of children. In particular I will refer to the personal difficulties you were facing at the time.
Mitigating factors of the offending
[48] I now turn to those personal difficulties, as a mitigating factor in relation to the offending, and accept, as your counsel submitted, that the psychological issues involved, which were complex and overlapping with social issues, should reduce the starting point being adopted here.
[49] It is the case that mental health factors can be engaged at both stages of the sentencing process, that is in adopting an appropriate starting point as well as
considering discounts for personal mitigating factors.20 For mental health issues to apply at the first stage to reduce the starting point, they must be found to have “altered the character and gravity of the offending itself.”21 There needs to be a causative link between the mental health issues involved and the offending.22
[50] It is also, as the Court of Appeal has stated, “uncontroversial that mental illness can be relevant to sentencing both retrospectively and prospectively.”23 Retrospectively, it may reduce the offender’s moral responsibility and culpability.
Prospectively, “a sentence might weigh more heavily due to a disorder”.24
[51] In L v R the Court of Appeal substituted a sentence of seven years and one month with a sentence of four years because the causal connection between the disorder and the offence justified a discount of 50 per cent.25 The Court explicitly rejected the idea that allowing discounts at both stages for the same mental health disorder would be to double count.26 In fact, as the Court said, “[o]n the contrary, to fail to properly account for all relevant aspects of the offence and the offender is to undercount.”27 The Court said while applying a discrete factor for the mental health disorder in that case was “not necessarily problematic”, it was “important not to under-account for all relevant aspects of that factor” when doing so.28
[52] I also bear in mind the comments of Mr Stuart for the Crown that cases in which mental health factors have attracted significant weight in discount have been those involving serious mental health conditions.
[53] Nevertheless, I have considerable information before me and heard the submissions from counsel concerning the effect of the mental health diagnosis. This was aggravated by years of psycho-social stressors in your case. This is not a case of
20 Orchard v R, above n 6, at [45].
21 At [45].
22 Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [50].
23 L v R [2019] NZCA 676 at [48].
24 At [49].
25 At [56].
26 At [50].
27 At [50].
28 At [51].
someone with known violent propensity and previous convictions who has failed to control themselves. You have no previous convictions.
[54] In this case, I consider your culpability is reduced on account of mental health issues. Dr Brindley is of the opinion you meet the definition of post-traumatic stress disorder, alcohol use disorder and cannabis use disorder, and that several subsequent events, over numerous years have added to this. This includes the death of your first child and mother, and experience of intimate partner violence. These have exacerbated and maintained these symptoms. The psychologist is of the opinion this had a material contribution to what was a “stress and trauma response” in terms of the offending. This lowered tolerance to frustration and anger, and manifested behaviourally as violent aggression. I also consider that those factors may have a bearing on the impact on you if a more significant term of imprisonment were to be imposed. I do consider the starting point ought to be reduced to take into account your diminished capacity and culpability, as well as the prospective future impact.
[55] I accept the Crown’s submissions on the comparators in relation to mental health conditions in the cases cited. However, each case must be considered on its own merits and in the context in which the mental health issues have arisen and have been exacerbated.
[56] Taken alone, the diagnoses and what they were initially caused by may by comparison with other cases not be a significant factor, but when entwined with the psycho-social stressors they led to the loss of control. In that respect I also note that you have taken some control over dealing with those issues and demonstrated an intention to address them.
Assessment as to starting point for manslaughter
[57] The Crown submits your offending was more serious and involved more aggravating factors than the “one punch” and “one push” cases. It says the strangulation, combined with violence leading up to the final push and prolonged verbal abuse, must have made the assault particularly frightening for the victim. Mr Stuart, for the Crown, submits a starting point in the range of six-and-a-half to seven years’ imprisonment on that charge is appropriate.
[58] Ms Epati, on the other hand, suggests that the cases cited above which sit above the “one push” category on account of immediately preceding non-fatal assaults suggest a range of four to four-and-a-half years’ imprisonment. I have said that includes the reduced culpability.
[59] In assessing the starting point for your sentence, I have examined the “one punch” and “one push” cases, as they are called, referred to me by counsel. I agree with the Crown that your offending is more severe than some of those cases. The violence leading up to the final push, particularly the choking, indicates you have higher culpability than in the ordinary “one push” cases. I have also considered the Hokai and Te Pana cases, although I consider the offending in those cases was more significant than here. A similar feature to those cases is the familial connection. You were family, whānau, of the victim. As in Hokai, you were caring for the victim full-time. However, unlike Hokai, you immediately sought to get medical help for the victim. In that case it does not appear that there was the extent of information that I have before me in this case which draws a direct connection between the mental health issues and your culpability here.
[60] In adopting a starting point, I have taken into account the aggravating factors I have referred to above, including the victim’s vulnerability, the breach of trust, and the violence you employed before his death. Against that I have weighed your lower culpability for the offending, given your personal psychological circumstances and mental health at the time. Overall, I am inclined to adopt a starting point for manslaughter of the victim of five years’ imprisonment.
Starting point — attempting to pervert the course of justice
[61] I must add a term of imprisonment for this charge. This as I said is to be served cumulatively, that is following on after the sentence for manslaughter.
[62] In this case, the evidence or the information I have suggest that it is clear you wanted to tell the truth from the start. You did so, both to your partner and to the neighbours and to the medical officers who attended the scene.
[63] Again, there is no tariff case for the charge of perverting the course of justice. I have had regard to a number of cases cited by the Crown, and note the importance emphasised in those cases of considering denunciation and deterrence as “important” and “overriding” sentencing principles here, given the grave seriousness that these types of offences cause in criminal proceedings and the potential effect of such conduct.29
[64] The Crown submits that in all the circumstances a starting point of two-and-a- half years is available here and appropriate.
[65] I accept the Crown’s submission that in pressuring two children to lie about what happened to the victim on the basis that if they did not you would go to jail and they would not get to see their baby sibling born, you took advantage of very young children and your position of power in the parent–child relationship. Nevertheless, that needs to be taken in context.
[66] I acknowledge the lies and deception here contributed to the delays in the investigation and charging you for the victim’s death. It has also clearly affected the members of your whānau from whom I have heard today. It is evident in the victim impact reports of the effect that this had on the whānau. The length of time for which you sustained this story also is a source of significant concern.
[67] However, as I said this must be taken in context, and I am of the view that the pressures you were facing, and in particular the coercive pressure of your partner led to the lies you told. A matter which adds context to this is that your partner has frankly admitted to police that lying to the authorities about what happened. It was his plan to avoid the baby being born in prison. He has stated to police that you wanted to tell the truth. It is apparent from all the material that he effectively coerced you into telling the police a fabricated narrative as to what happened. Dr Brindley is of the opinion that your experience of coercive control in the context of your relationships had a material contribution to your being unduly influenced by your partner in this way. Your individual vulnerabilities, which I have talked about, put you in a position where you felt that you simply had to comply. That is corroborated by the fact you told the
29 McQuilken v R [2017] NZCA 283; and Miller v R [2014] NZCA 382 at [11].
truth to your friend and the ambulance staff at the time of the incident. You also told your partner which elicited a strong response from him.
[68] I also note the interference here was at a lower level than those in the cases cited by Mr Stuart. In particular, the “course of justice” in this case was at an early stage, being the investigation phase, no court proceedings had been commenced, and you did not attempt to pressure complainants, although of course the children were involved. As such, your actions here were undeniably wrong, but I would assess them at the lower end of this type of offending.
[69] That does not diminish the seriousness of the wrongness of your actions, but I acknowledge they were also a human reaction in the circumstances. By all accounts it appears the primary concern of you and your partner was to avoid giving birth to your baby while incarcerated.
[70] This was serious wrongdoing and it is important to ensure such conduct is denounced and others are deterred from doing so. But in the circumstances, this was an exceptional case where you were put under considerable pressure and coerced into telling the story to the police that the victim tripped. I consider in this case, taking into account all the circumstances, a sentence of one year imprisonment is appropriate.
Conclusion of first step — overall starting point
[71] I have therefore adopted a starting point for the manslaughter of five years’ imprisonment and a starting point for the attempt to pervert the course of justice of one year imprisonment, resulting in an overall starting point of six years’ imprisonment.
Second step — adjustments for matters personal to you
[72]To this I turn to make adjustments to the sentence for matters personal to you.
[73] It is accepted there are no aggravating factors which require an increase in sentence due to your personal circumstances.
[74] There are, however, a number of mitigating factors personal to you which warrant downward adjustment.
Guilty plea
[75] First, I note your guilty plea was early. You pleaded guilty at the first opportunity and as such are entitled to the full discount of 25 per cent for this.30
Good character
[76] In relation to good character, I acknowledge your good character. You have a clean record which is evidence of that and is worthy of recognition. I have regard to other cases, in which discounts from 10 to 25 per cent have been applied but that must bear “proportionality to the overall sentence”.31 Your counsel, Ms Epati, submits a discount of 15 per cent should be available and I consider that as a starting point that might be available. However, against this must be tempered some reduction for the length of time over which you sustained a dishonest story about what happened to the victim. Although as I have noted, I accept this was your partner’s plan and you were pressured into it, you sustained it for some time, causing hurt to the whānau. You would have had many chances, many opportunities in that period to tell the truth. For that reason I make a reduction to the discount of 15 per cent by three per cent, resulting in a total discount for your previous good character of 12 per cent.
Remorse
[77] I note your remorse has been recorded, in particular, in the probation report and the s 27 report. Your partner recounted your apologies immediately following the events. You have made an offer to participate in restorative justice, although I note there has been no outcome to that. That was not because of any fault of yours but rather an administrative error in the restorative justice process. Such discounts for remorse are typically minimal. But I accept a demonstration of remorse has been shown by your submission to restorative justice. As I understand it you remain willing
30 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
31 Manawaiti v R [2013] NZCA 88 at [19].
to engage in that, from your lawyer. Overall, I consider a small discount of five per cent is appropriate.
Personal circumstances
[78] Finally, I note two aspects of your personal circumstances which warrant recognition.
[79] The first is the history of social deprivation and disadvantage, as outlined in the s 27 report. Quite separately from the mental health difficulties I have already mentioned above (while there is considerable overlap), it is clear you have experienced traumas in your life and social cultural disadvantage. As has been recently recognised in R v Ngawhika, a discount in the range of 15 per cent is appropriate to recognise the impact of such credible personal background factors on your moral responsibility in respect of your offending.32 That is not at the highest range for this.
[80] The second matter has to do with your role as a mother to a young baby and other dependent children.
[81] The effect of having an imprisoned mother on children has been the subject of a number of recent comments by courts. The research in this area indicates that the effect of having a mother in custody has lifelong effects on the child and is a strong indicator of future difficulties with the law, socially, and mentally for those children. The English Court of Appeal as early as 11 years ago in a decision called R v Petherick put it as follows:33
… where the case stands on the cusp of custody … the interference with the family life of one or more entirely innocent children can sometimes tip the scales and means that a custodial sentence otherwise proportionate may become disproportionate.
[82] In Theodore v Police Ellis J considered the United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders, or the Bangkok Rules, were a “useful stepping off point” in any sentencing decision
32 R v Ngawhika [2023] NZHC 520; Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [161]–
[162]; Poi v R [2020] NZCA 312 at [32]–[51]; and Carr v R [2020] NZCA 357 at [55].
33 R v Petherick (Practice Note) [2012] EWCA Crim 2214 at [22].
involving a woman who has dependent children.34 In Honeybun v Police Palmer J, having regard to the United Nations Convention on the Rights of the Child, regarded the negative impacts of a parent’s imprisonment on a child as “mandatory relevant considerations in sentencing [the defendant]”.35
[83] The recent Supreme Court decision referred to by Ms Epati noted that the Sentencing Act provides sufficient support for the ability to consider children under the sentencing framework, and the Convention affirms this.36 In Philip v R, in which the defendant had a close relationship with his young child, the Supreme Court unanimously agreed with the High Court that a discrete discount was available given that the defendant was an important presence in his young child’s life.37 The Court rejected the Crown’s submission that such discounts should be rare. Rather, what was required was a consideration of all the relevant circumstances, including the child’s best interests.38 In R v Hayman the Judge imposed a discount of 20 per cent to recognise the impact on the defendant’s dependent children.39
[84] In this case you have been looking after three children up until today with your partner. One is a baby of 16 months. They will be separated and sent to family members if you go to jail. Oranga Tamariki was involved in planning for the baby to stay with you when it was born. There is no doubt that there will be severe repercussions on those children if you are sentenced to a term of imprisonment. The situation for women in Gisborne being sentenced was outlined by your counsel, Ms Epati. It is well known that they will serve their sentence far away from here. It is accepted in the research that women are less likely to have whānau visit them than men prisoners are. It is highly likely the whānau and the children will not visit regularly.
[85] Taking these two matters together, I am satisfied an overall discount for your personal circumstances of 25 per cent is both available and appropriate.
34 Theodore v Police [2018] NZHC 2364 at [35].
35 Honeybun v Police [2022] NZHC 3445 at [10].
36 Philip v R [2022] NZSC 149 at [52] and n 61.
37 At [53].
38 At [56].
39 R v Hayman [2021] NZHC 642.
Conclusion as to second step — sentence calculation
[86]I noted a nominal starting point of six years’ imprisonment.
[87]To this the following discounts are to be applied:
(a)guilty plea — 25 per cent;
(b)good character — 12 per cent;
(c)remorse — five per cent; and
(d)personal circumstances, including the children and cultural issues, which overlap with mental health issues but I bear in mind that I have earlier considered that — 25 per cent.
[88] This results in an overall discount of 67 per cent. It is not a mathematical exercise. Having regard to the totality principle, I round this up to 24 months’ imprisonment so that the total sentence imposed is proportionate to the gravity of the overall offending.40 The individual sentences for each offence are to remain proportionate to each other as discernible in their starting points.
Home detention
[89] As I have determined the appropriate sentence is a short term of imprisonment, that is one of two years’ imprisonment or less, I turn to consider whether a sentence of home detention would adequately achieve the purposes for which a sentence is being imposed.41 I am satisfied you present a low risk of re-offending. I also bear in mind home detention would allow you to care for your dependent baby and step-children. Home detention is a less restrictive sentence than imprisonment and I am required to impose the least restrictive sentence available in the circumstances.42
40 Sentencing Act 2002, s 85.
41 Sections 15A and 80A.
42 Sections 8(g) and 10A(2).
[90] The Crown opposed home detention based on the fact you will be living with the children and your partner again. The family dynamics at the time of the incident contributed to the offending. However, you have been with the family for 18 months since then and no incidents have been reported. You have taken steps to deal with the mental health issues you face and continue on that journey now with some support. I consider this is a true case on the cusp. The interests of the children in your being present in their lives leads me to the sentence which I now impose.
Sentence
[91]Ms Maru, would you please stand.
[92] For the charge of manslaughter, I sentence you to 20 months’ imprisonment, to be served as 10 months’ home detention. For the charge of attempting to pervert the course of justice, I sentence you to four months’ imprisonment, to be served as two months’ home detention. These are to be served cumulatively, altogether resulting in a total sentence of 12 months’ home detention and that will be served on the special conditions which are set out in the probation report which also add to supporting the suitability of the sentence.
[93]Those conditions are that upon sentencing:
(a)you will go immediately to the address in Gisborne that is specified and wait there until the probation officer and security officer have completed the home detention connection;
(b)you will remain at that address and not leave it without approved absence from the probation officer;
(c)you will reside at that address or as directed for the duration of the home detention;
(d)you will undertake alcohol or drug counselling with an approved provider as directed by your probation officer;
(e)you will attend counselling or programmes as directed by your probation officer; and
(f)you will abstain from alcohol and illicit drug use for the duration of home detention and submit to random alcohol and/or drug testing as directed by the probation officer.
[94]The 12 months post-home detention period is subject to those same conditions.
Grice J
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