R v Mataafi
[2016] NZHC 3076
•15 December 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-092-4751 [2016] NZHC 3076
THE QUEEN
v
JAMES FALETOGIA MATAAFI
Hearing: 15 December 2016 Counsel:
E J McCaughan for the Crown
R M Mansfield and STL Teppett for Mr MataafiSentence:
15 December 2016
SENTENCE OF WOODHOUSE J
Solicitors / Counsel:
Mr E J McCaughan, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau
Mr R M Mansfield, Barrister, Auckland
R v MATAAFI [2016] NZHC 3076 [15 December 2016]
[1] Mr Mataafi, you have pleaded guilty to a charge of manslaughter.
[2] I advised you last week, on the sentence indication, that if you pleaded guilty I would discharge you without conviction. What I said then forms part of this decision, and I will attach a copy of my notes to this decision.
[3] To explain my decision, I need to describe what happened. I know this will be hard for you, and your wife and your children, and other members of your family. But, as I am sure you will understand, it is important that others understand.
[4] On Christmas Day, 2014, your youngest child, Imogen, drowned in an inflatable pool. She was 17 months old.
[5] The pool was a gift to your four children from your brother Jonathan. The pool was given to your children at a relation’s home, a week or so before Christmas, when the extended family gathered to exchange gifts.
[6] You took the pool back to your home which you share with your partner Sina, your four children, and Sina’s parents – her father is sitting next to you.1 Also staying there over the Christmas period, from Australia, were Sina’s sister, her 2 year old daughter, and a 14 year old cousin.
[7] All of you saw the pool as a gift not just for your children, but as an activity the combined families could enjoy over the Christmas and New Year period. Adults as well as the children were excited by the pool.
[8] You took the pool home in its box. You did not know how to set it up. Other family members did this. It was erected in the back yard. When it was inflated the top was 67 centimetres above the ground, as measured by, I think, a police officer. It
was filled with water to a depth of about 49 centimetres.
1 Mr Mataafi’s father-in-law was also charged with manslaughter. The Crown offered no evidence against him and the charge was dismissed.
[9] A child-proof gate was put over the stairs which went from the deck at the back of the house into the yard. This was done to prevent small children from going out of the house into the backyard without supervision.
[10] You say, and I accept, that you did not think that the law required a temporary pool, like this one, to be fenced. And this was a pool that cost $200, I think from The Warehouse. You accept that the box the pool came in had a label on it warning about the dangers of children drowning in portable swimming pools, and that children needed to be supervised at all times.
[11] It was understood amongst all the adults that the children could not use the pool without an adult supervising.
[12] The children and the adults had a lot of fun with the pool up to
Christmas Day.
[13] On Christmas morning, the adults were preparing for Christmas celebrations later in the day. Your father-in-law placed some sheets on the lawn for the children, including Imogen, to play on. These were about six to seven metres away from the pool. He began cooking on the barbecue which was no more than – if I have got the detail right – about half a metre from the pool. He had his back to the pool while working on the barbecue.
[14] You described this period in your affidavit as follows:
That Christmas morning I was busy with preparations for the extended family Christmas celebration, the whole family was. My time was spent in the garage away from the pool area. Imogen’s grandfather was at the barbecue close to the pool, it is not a large property. Other adult family members were also around the property. Everyone was looking after everyone. It was a very happy time and the children were laughing and playing. We had no sense of danger or the need to be on guard.
[15] On that day there were seven adults at your home, including a nephew over the age of 18 years.
[16] Imogen came into the garage about 10 to 15 minutes before the accident. She said hello and gave you a cuddle, then went back outside and played with her siblings.
[17] It is not known exactly how Imogen got into the pool. The sides were too high for her to get in without a step. Her pushchair was found against the pool and it is possible that she may have used this to climb in. Her grandfather pulled her from the water when alerted by one of the children. Sina’s sister performed CPR without success. Emergency services had been called immediately. They arrived very quickly but they were too late.
The charge
[18] I will describe the charge against you.2
[19] The manslaughter charge against you was that you had been responsible for the erection of the pool and, in the absence of precaution or care, the pool could endanger human life. It was contended that, without lawful excuse, you omitted to take reasonable precautions or use reasonable care to avoid the danger. This omission was alleged to be, in the words of the Crimes Act, a “major departure from the standard of care expected of a reasonable person”. And it was further alleged this caused Imogen’s death.
[20] The Crown’s contentions in a practical sense are that there should have been more rigorous supervision of Imogen and the other small children, or the water should have been emptied to a safe level, or a cover should have been used, or some sort of fencing should have been erected – and perhaps a combination of some of those things.
[21] The Crown contended that, because there was no fencing around the pool, it was paramount that adult supervision occurred whenever the children were using the back lawn, not just when the children were in the pool. It was submitted that, given
the number of adults at the house, there was always the possibility that every adult
2 Crimes Act 1961, ss 150A, 156, 160(2)(b) and 171.
would assume that someone else was supervising the children around the pool, and that this appears to have been what happened on Christmas Day.
[22] You were not advised until 27 April 2016 that a charge was to be brought against you. That is 16 months after your daughter died. And that is a long time in the circumstances.
Discharge without conviction
[23] Under the Sentencing Act 2002 I have a discretion to discharge you without conviction if I am satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.3
[24] When considering what the Act refers to as “the gravity of the offence”, I must assess not only the extent of your responsibility for what happened, but also your personal circumstances relevant to the question of punishment.4 In considerable measure I have already outlined, with the factual background, the extent of your responsibility for what happened.
Your personal circumstances
[25] I will now describe your personal circumstances.
[26] What you have managed to achieve in your life, after difficulties at a young age, and the adversities you and your wife have faced, form an important part of the reasons for my decision to discharge you without conviction.
[27] You are now aged 34 and your partner, Sina, is 35. The two of you met when you were teenagers. You have been together ever since. You have had five children together. Your first daughter, Judy, was stillborn in 2000. Imogen is now buried beside her. Your four other children are aged 15, 13, 12 and 5.
[28] When you were 15 years old you appeared in the Youth Court on two serious charges. The Youth Court appearance resulted in a supervision order with a course
3 Sentencing Act 2002, ss 106 and 107.
4 Z v R [2012] NZCA 599; DC v R [2013] NZCA 255.
in Whakatane. You said it was good for you and helped you focus and made you realise what was important in life. You went back to school for a short period.
[29] You have no convictions as an adult apart from a driving offence when you were 19, and this can be put completely to one side.
[30] You have worked hard, both in jobs and as a husband and father. In your affidavit you say that you have been proudly devoted to being a good member of the community and to being a good partner to Sina, and to the two of you – you and Sina as a team – being the best role models you can be to your children. I accept that you have achieved these things. And you want your children to have a different life from what the two of you have had, and a life of hope and opportunity.
[31] You also pursued a hobby of mixing music. The hobby led, in 2012, to a job offer and a move to Melbourne with your wife and children.
[32] Towards the end of 2013 you went with Sina and the children to Niue for your brother’s wedding. You were excited to go because you had not been there since you were 12 years old. On this holiday Sina was seriously injured when she fell from a motor bike. She got medical attention for a head injury and was advised in Niue that the injuries would not have any long-term effect. Because of this advice you did not return to New Zealand for a week. When Sina went into Auckland Hospital the two of you were told that she had permanently lost her sight. The medical advice you were given was that it was possible that, if you had got specialist care in New Zealand immediately, the damage may have been reduced or avoided. You say in your affidavit that you try not to think about this too much because it is difficult to think that way – about what might have been. And it has come to you again.
[33] Because of the accident you and your family were unable to return to Australia. You needed extended family to help with the care of Sina and your children. You initially stayed with your mother and stepfather and then moved in with Sina’s parents. In addition, you had to give up outside employment to provide the necessary care for your wife and your children.
Analysis: discharge without conviction
[34] I come now to my reasons.
[35] The Crown’s submission on the appropriate sentence was that there should be a conviction but nothing more. Two important points arise from that submission. The first, and obvious point, is that the Crown accepts that all the circumstances of this offence, and of you personally, do not require any further punishment. The second point is that the submission recognises that conviction in itself is a sentence – it is punishment.
[36] To convict you would be a harsh punishment. It would label you as a man who killed his daughter. If the focus is only on the circumstances surrounding the use of the pool and your daughter’s death, that label, in your case, cannot be justified. The only possible purpose of sentencing that would require conviction would be to deter others. That purpose would not be advanced in any meaningful way by imposing a conviction on you.
[37] In any event, that solitary consideration – deterrence of others – cannot justify a conviction when it is weighed against all the circumstances of Imogen’s death and of your life. Sentencing also requires compassion and mercy. You are a victim in what happened, not a criminal. It was a dreadful accident. And it must be remembered that the burdens of this tragedy are borne not just by you, but by Sina and your remaining children, their grandparents, and other relations involved in one way or another in what happened. If there is a conviction recorded against you, the stigma of that impacts on them as well as you. All of you positively need to be freed of the further burden that would arise from conviction.
[38] Counsel referred me to some other cases. I will note these – most of them –
in a footnote.5 I have taken them into account, but it is unnecessary to discuss the
facts of those cases. I would simply note that I do not agree with the Crown’s
5 R v X [2015] NZHC 1244; R v Illston HC Wanganui CRI-2011-034-273, 26 October 2011; R v Waiba HC Auckland T025743, 8 August 2003; R v Turton (No 2) (1989) 5 CRNZ 274; R v Nagle [2013] NZHC 2532; R v Hamer [2005] 2 NZLR 81, (2004) 21 CRNZ 108.
submission that the gravity of the offence in the case of Illston was lower than the circumstances of your case.
[39] There is one other consideration, Mr Mataafi, arising from Mr Mansfield’s commendable submissions on your behalf. This is that a conviction for manslaughter is likely to cause real difficulty for you in getting outside employment, something which may be important for your family, particularly in all of the circumstances I have described. By itself, it is doubtful that this would have been sufficient to justify discharge without conviction. But it is a consideration to be added to the matters I have already referred to.
[40] I am in no doubt that, in all the circumstances I have outlined, the consequences of a conviction would be out of all proportion to the gravity of the offence. And having come to that conclusion I am in no doubt that my discretion should be exercised by discharging you without conviction.
[41] You are accordingly discharged without conviction.
Woodhouse J
NOTE: PUBLICATION OF ANY INFORMATION ABOUT THIS HEARING, THE SENTENCE INDICATION AND OF THE REQUEST FOR A SENTENCE 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.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-092-4751
THE QUEEN
v
JAMES MATAAFI
Hearing: 7 December 2016 Appearances:
E McCaughan for the Crown
R Mansfield for the DefendantIndication:
7 December 2016
SENTENCE INDICATION OF WOODHOUSE J
Solicitors:
Mr E McCaughan, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau
Mr R Mansfield, Barrister, Auckland
[1] Mr Mataafi, as you well know, you have been charged with manslaughter following your daughter’s death. You have asked the Court to give you an indication of the sentence that would be imposed on you if you plead guilty.
[2] I will state at the outset that my conclusion is, having read all of the submissions, that in all the circumstances of this case you should be discharged without conviction.
[3] It is not necessary at this stage to explain the reasons for my conclusion, and I do not propose to do so. The sentence indication is not at present a matter of public concern. If you do plead guilty, following this sentence indication, the reasons will be fully explained on sentencing. In the meantime, and as the representatives of the media are aware, there can be no publication or reporting of this hearing and my conclusion, or of the fact that you have applied for a sentence indication.
[4] What I will at this stage record is the information that I have relied on and it is as follows:
(a) The charge, as recorded in the charging document.
(b) The summary of facts which was agreed for the purpose of this
hearing and a copy of which is attached to the Crown’s submissions.
(c) Your criminal and traffic history.
(d)The victim impact statement from Sina Saleupolu, Imogen’s mother and your partner of some 20 years.
(e) Your affidavit.
(f) The Crown’s submissions and Mr Mansfield’s submissions - two different sets of submissions - on your behalf.
(g) The coronial autopsy report.
(h) The statements taken by police for the purpose of the prosecution.
[5] I have also had regard, of course, to the relevant provisions of the Sentencing
Act 2002 and to relevant sentencing decisions.
[6] Following that indication I had discussions with counsel. Mr Mansfield advised that his instructions were that Mr Mataafi could be arraigned immediately. He was arraigned. The formal charge was put to him and he has just pleaded guilty on the basis of the sentencing indication that I have just given.
[7] I accordingly remand you, Mr Mataafi, on existing bail conditions for sentencing before me next Thursday 15 December 2016 at 9 am.
[8] I have not discussed this with counsel, but record that I am satisfied that no further reports are required for the purpose of sentencing Mr Mataafi. I have assumed that the usual obtaining of a pre-sentence report would not be sought by the
defence and Mr Mansfield has just confirmed that.
Woodhouse J