R v McClutchie
[2024] NZHC 901
•23 April 2024
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2022-016-1710
[2024] NZHC 901
THE KING v
TE NGAHURU MAXWELL McCLUTCHIE
Hearing: 23 April 2024 Counsel:
L Marshall for Crown
A M Simperingham for Defendant
Sentence:
23 April 2024
SENTENCING NOTES OF ISAC J
Introduction
[1] I want to begin by acknowledging that a little girl has been lost. Casino Ataria-Wharehinga was a bubbly, cheeky, loving toddler. She was treasured by her wider whānau. Her time here was a precious thing, and it is with remarkable aroha and profound sorrow that they are gathered here today to honour her. Nau mai haere mai. He roimata ua, he roimata tangata.1
[2] Thank you for speaking today on Casino’s behalf. I am grateful for your words. What you have said gives me hope because while I see and I hear your grief, I also see
1 “As the rain falls, our tears fall in memory of those we have lost”.
R v McCLUTCHIE [2024] NZHC 901 [23 April 2024]
that you know the importance of remembering Casino and being grateful for her life. While today my focus must be on sentencing Mr McClutchie, I have not lost sight of the little person whose life was lost so needlessly.
[3] I also want to acknowledge Mr McClutchie’s whānau. Today will be a hard day for you also. Nau mai haere mai.
[4] Te Ngahuru McClutchie, you appear for sentence having been convicted by a jury of Casino’s manslaughter,2 causing her grievous bodily harm with reckless disregard,3 and with her neglect.4 As your lawyer will have told you, the maximum sentence for manslaughter is life imprisonment.
The offending
[5] Casino was 17 months old when her mother was remanded in custody. In November 2021, she came into the care of her maternal aunt, Amy Wharehinga, your partner of 12 years, and she came to live in your home.
[6] You rightly describe the domestic situation as chaotic, with no structure or routine for yourselves or the children in your care. Both you and Ms Wharehinga were habitual drug users. Immediately prior to your arrest, it appears you were regularly using methamphetamine, cannabis and alcohol. You have said that you craved methamphetamine in the same way that people crave food.
[7] Within a matter of weeks of Casino coming into your care, on 19 December 2021, when you were the only adult at home, you assaulted Casino. Only you know precisely what you did to her. The expert medical evidence at your trial was that Casino suffered a very significant head injury, which caused extensive bruising to her head, neck, shoulder, swelling to her head, and symptoms consistent with concussion. Ms Wharehinga’s daughter described in her evidence at trial the obvious pain that Casino was in in the days following, and that adults were unable to put clothing on her upper body due to the extent of her facial swelling and pain. Her
2 Crimes Act 1961, ss 160(2)( a), 171 & 177. Maximum penalty life imprisonment.
3 Crimes Act, s 188(2). Maximum penalty 7 years' imprisonment.
4 Crimes Act, ss 152 & 195(1). Maximum penalty 10 years' imprisonment.
injuries were clearly obvious to you and other adults, including a Police officer who visited.
[8] Your conviction on a charge of neglect of a child arises because despite knowing Casino was seriously injured, you did nothing to obtain medical treatment for her in the days that followed. Indeed, as the Crown submits, on 20 December 2021 you went as far as to cancel an appointment made for her at the local medical centre. You and your partner claimed the injuries were caused by a falling rock-salt lamp pushed over by one of your children. You blamed your own child for what had occurred. You put your perceived interest in avoiding the consequences of your actions ahead of the needs of a seriously injured child in your care. Had you or Ms Wharehinga done the right thing at that time, there is every chance Casino would be alive today. It is a tragic irony that the long term of imprisonment you now face flows from your decision to hide the cause of Casino’s injuries on that occasion.
[9] Your conviction for manslaughter arises from your assault on Casino two weeks later, on 6 January 2022. You were the only adult at home. The exact mechanism is unknown, but as the Crown submits, consistent with the medical evidence, the most likely explanation is that you gripped Casino around the rib-cage with sufficient force to fracture her ribs and then slammed her against something, possibly repeatedly. However, given the uncertainty about the exact mode of assault and the medical evidence, I proceed to sentence you on the basis that the fatal injuries were likely caused by a single catastrophic act.
[10] Casino suffered bruises and fractures to her ribs as well as blunt force trauma to multiple locations on her head. At least one of those impacts involved sufficient deceleration to cause subdural bleeding and retinal haemorrhage. Casino went into respiratory then cardiorespiratory arrest with subsequent global brain injury involving bleeding extending over the brain and around the spinal cord. Her liver was likely lacerated during the assault because of the force you used on her chest. Notwithstanding timely medical intervention, Casino’s injuries were not survivable and she passed away in Starship Hospital on 10 January 2022.
[11] Subsequent medical investigations show Casino had healing fractures to her ribs and vertebral compression fractures. The medical experts were able to say that these injuries probably occurred within weeks rather than days of her death. Given the evidence, I am satisfied these fractures were caused when you assaulted Casino on 19 December 2021. The nature of the injuries, involving again compression fractures to the ribs, suggest a similar mode of assault was used.
[12] After Casino’s death you were interviewed with Ms Wharehinga by Police. You again both sought to blame one of your children for causing Casino’s fatal injuries. That is a very cowardly thing to have done. When your medical expert accepted a child could not have caused Casino’s injuries in the way you claimed, at the trial you sought to avoid conviction by blaming Ms Wharehinga.
Personal circumstances
[13] You are 36 years of age. You have a large number of previous convictions, but I accept Mr Simperingham’s submission that there is nothing in your criminal history that would warrant an uplift to your sentence.
[14] Your background and upbringing, like that of too many young Māori men, is marked by violence, substance abuse and lack of education. These are part of the legacy of colonisation. The pre-sentence report and section 27 report indicate that you whakapapa to Ngāti Porou.
[15] As a child you were both a victim and observer of family violence. You and your twin brother were obliged to leave education at the age of 11 because a serious accident meant your father was unable to work the family farm. You began drinking regularly and heavily at the age of 13 or 14. By the age of 16 you were regularly smoking cannabis. When you were 18 you suffered a traumatic brain injury from a beating received from a family member. This left you with epilepsy. At around the same time, you began consuming methamphetamine.
[16] Your drug use accelerated when you lived in Melbourne for a few years in your early 20s. It did not stop when you returned home.
[17] You then began a relationship with Ms Wharehinga 12 years ago and you have had five children together. The eldest is nine and the youngest is eight months old. At the time of Casino’s death, only one of your children was lawfully allowed to be in your day-to-day care.
[18] Despite these things Mr McClutchie, I am told that you have a strong bond with your whānau and your culture. Those are important. You have also taken concerted steps since you were charged to address your drug dependency, and I accept as genuine your desire to continue to recover from addiction while you are in custody. That is to your credit. It indicates to me that you have insight into the profound cost your drug addiction has had for Casino, her whānau, and now you.
Starting point
Manslaughter
[19] I turn then to consider the starting point for your offending. That is the sentence I should impose on you before I consider personal aggravating and mitigating factors.
[20] The lead charge is manslaughter. The aggravating features of your offending I identify are these:5
(a)Defencelessness of the victim: Casino was 19 months old when you caused her death. Her biological parents were in prison. She was entirely dependent on you and her auntie for love, care and protection. Instead her last weeks were spent in a chaotic and terrifying world she had no ability to protect herself from or to speak out about.
(b)Seriousness of the harm: On 19 December 2021 Casino suffered significant bruising to her head, neck and shoulders which led to what the medical experts described as “racoon eyes”. As I have said, her head was so swollen it was difficult to dress her. On 6 January 2022, your
5 Section 9A of the Sentencing Act 2002 requires the court, when sentencing a defendant for violence against, or neglect of, a child under 14 years, to have regard to the aggravating factors listed in ss 9A(2)(a)-(e).
actions resulted in fractured ribs, a lacerated liver, subdural haematoma and retinal haemorrhaging. She succumbed to her injuries four days later once life support was removed.
(c)Magnitude of the breach of trust: You were Casino’s uncle, and you were one of her two primary caregivers for the foreseeable future. You were also the only adult in the house when Casino was assaulted on each occasion.
(d)Deliberate concealment of the offending: You and Ms Wharehinga concealed the offending, maintaining to Police that both sets of injuries were the results of accidents caused by your children. This meant the call takers on 20 December 2021 and the medical staff on 6 January 2022 did not have the full picture when trying to diagnose and treat Casino.
[21] There is no tariff case for manslaughter. That is because the range of offending encompassed by the charge is diverse.6 In your case, the greatest assistance is to be drawn from comparisons to previous cases involving violence resulting in the deaths of young children.
[22] Both counsel have referred me to a range of authorities.7 As the cases make clear, starting points of 10 years or more are generally reserved for the most serious cases of violence, usually involving a prolonged assault or extreme violence.8 In cases suggesting a one-off or momentary loss of self-control lower starting points are commonly adopted.9
6 See R v Mitchell [2017] NZHC 1391 at [32].
7 Mehrok v R [2021] NZCA 370; Robinson v R [2011] NZCA 479; Woodcock v R [2010] NZCA 489; R v Pene [2010] NZCA 387; R v Broadhurst [2008] NZCA 454; R v Kishore [2023] NZHC 2913; R v Rawhiti [2023] NZHC 2068; R v Wallis [2023] NZHC 2029; R v Roberts [2021] NZHC 146; R v Mitchell, above n 6; R v Huata [2017] NZHC 704.
8 R v Roberts, above n 7, at [20]. See also Mehrok v R, above n 7; R v Woodcock, above n 7;
R v Rawhiti, above n 7; R v Huata above n 7.
9 Robinson v R, above n 7; R v Pene, above n 7; R v Broadhurst, above n 7; R v Kishore, above n 7;
R v Wallis, above n 7; R v Roberts, above n 7.
[23] In your case Mr McClutchie, the most favourable conclusion that can be drawn from the evidence is that while Ms Wharehinga was out of the house and you were alone and in charge of young children, something occurred which caused you to lose self-control, and the fatal assault involved significant violence, but it was not prolonged. It is also clear that as soon as Ms Wharehinga returned shortly after to find you with Casino unconscious and seriously unwell, you assisted in seeking urgent medical attention. I infer that you knew you had gone too far on this occasion, and that Casino’s life was in peril.
[24] The Crown and your lawyer are not far apart on the appropriate starting point. Ms Marshall submits a starting point of eight to nine years’ imprisonment on the charge of manslaughter is appropriate.10 Mr Simperingham submits a starting point of eight years’ imprisonment.11
[25] In my view, your case has the most similarity with cases such as R v Broadhurst and R v Roberts.12 Overall, I adopt a starting point of eight years’ imprisonment on the charge of manslaughter.
Recklessly causing grievous bodily harm and neglect
[26] Counsel are also agreed that a discrete uplift is then required to reflect the remaining charges of grievous bodily harm and neglect. Both are serious offences in their own right, carrying maximum sentences of seven and 10 years’ imprisonment respectively.
[27] The Crown submits, based on parity with Ms Wharehinga, who was also convicted of neglect, that an additional four and a half years’ imprisonment should be added to the starting point for manslaughter. On your behalf, Mr Simperingham submits that an increase between 18 and 24 months’ imprisonment is appropriate.
10 Relying on the cases of R v Mehrok, above n 7; R v Broadhurst, above n 7; and R v Roberts,
above n 7.
11 Also relying on R v Broadhurst, above n 7; and R v Roberts, above n 7.
12 R v Broadhurst, above n 7; and R v Roberts, above n 7.
[28] I agree with the Crown that both charges are serious, and that had you appeared for sentence on them alone they would have warranted a significant term of imprisonment. However, two factors lead me to consider an uplift of four and a half years’ imprisonment would not be consistent with the requirement to impose the least restrictive outcome that is appropriate in the circumstances.13 First, totality requires a global starting point that avoids the disproportionate effect of simple addition of cumulative sentences. Second, the maximum sentence on the wounding charge is seven years’ imprisonment rather than 14 years, because it was accepted by the Crown and the jury that you did not intend to cause Casino really serious harm even though that is what you did cause her.
Totality and overall starting point
[29] Overall, taking into account those considerations, I consider that an uplift of two and a half years’ imprisonment is appropriate to reflect the remaining charges. That brings the starting point for you Mr McClutchie to 10 years and six months’ imprisonment.
Personal aggravating and mitigating factors
[30] I turn now to consider your personal circumstances and related mitigating factors. As your counsel has correctly noted, there can be no discount for a guilty plea or remorse.
Section 27 Sentencing Act factors, addiction and rehabilitative prospects
[31] However, I accept that there is appropriate material before the Court which mitigates the starting point I have identified.
[32] The higher courts of this country have recognised that while intoxication with alcohol or drugs can never be a mitigating factor,14 a pre-existing state of addiction contributing to offending may be.15 Addiction reduces the ability of an individual to make
13 Sentencing Act, s 8(g).
14 Sentencing Act, s 9(3).
15 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648, at [144], Carr v R [2020] NZCA 357
at [55]-[66]; Poi v R [2020] NZCA 312; Dey v R [2021] NZCA 342 at [51].
rational choices. It can overwhelm otherwise pro-social tendencies and result in isolation from whānau and community support. That is, the level of culpability for offending that is causally linked to addiction may be reduced.16
[33] In addition, systemic or cultural deprivation may also be a factor reducing the culpability of an offender.17
[34] Mr McClutchie, it is clear that your life has been marred by addiction. From an early age you were dependent on alcohol and cannabis. In your late teens, as I have said, you began using methamphetamine, a pattern that has continued for over twenty years. I have no doubt that your addiction and the lifestyle that followed from it is connected to your behaviour and the charges for which you are now for sentence.
[35] To your credit, the pre-sentence report indicates you have used the time on remand to engage positively in rehabilitation. As I say, I also accept as genuine your stated desire to use your time in prison to address your addiction and make a better life for yourself. Only you can do that.
[36] The sentencing material also shows that you had a childhood marked by deprivation, exposure to family violence, a lack of education and a loss of mana. These experiences have also played their part in your offending. So too the serious assault and brain injury you suffered as a teenager. There is a clear link between those suffering brain injuries, drug use, and offending.
[37] In my view, a discount to reflect the role of addiction and your rehabilitative engagement warrant a discrete discount from the starting point of 10 per cent. In addition, your childhood deprivation and mistreatment set you on a path to drug use and addiction. I consider a further 10 per cent reduction is called for to reflect your reduced culpability.
16 Bugmy v R [2013] HCA 37, (2013) 249 CLR 571 at [43]–[45] (footnotes omitted). See also Poi v R, above n 15, at [26]; E (CA522/2021) v R [2022] NZCA 368 at [67]; and Fielding v R [2021] NZHC 2753.
17 Poi v R above n 15, at [27].
[38] That brings the total reduction to the starting point of 20 per cent. In addition, I am satisfied that a reduction of two months’ imprisonment is necessary to reflect the time spent on electronically monitored (EM) bail awaiting trial. Together, mitigating factors reduce the sentence by 28 months imprisonment.
[39] I am not persuaded that further discount to reflect the impact of your incarceration on your own children is appropriate in a case involving such serious violence against children.
Minimum period of imprisonment
[40] The final question is whether I should impose a minimum period of imprisonment under s 86 of the Sentencing Act 2002. A court may do so if satisfied that the standard parole eligibility period is insufficient to hold an offender accountable, to denounce their conduct, or to protect the community.18
[41] Crown counsel submits that a minimum period of imprisonment of half of your sentence is required to hold you accountable. They refer to two cases where a similar MPI was imposed. However, counsel also acknowledges the other cases, including the two I have identified as most relevant, do not involve an MPI.19
[42] I do not consider it is necessary or appropriate to impose a minimum period of imprisonment in your case Mr McClutchie. You have no previous history of serious violence and you have insight into your addiction and you are positively engaging in rehabilitation.
[43] I am therefore giving you the opportunity to take responsibility for what you have done with the hope that one day you can persuade the Parole Board that you no longer present a threat to the community. That is up to you now. But I am giving you that chance.
18 Sentencing Act, s 86; and Parole Act 2002, s 84(1).
19 In Mehrok v R, above n 7; and Mitchell v R, above n 6, MPIs were imposed.
Sentence
[44]Mr McClutchie please stand.
[45] On the charge of manslaughter, you are sentenced to eight years and two months’ imprisonment.
[46] On the charge of causing grievous bodily harm with reckless disregard, you are to serve a concurrent sentence of three years’ imprisonment.
[47] On the charge of neglect of a child, you are to serve a concurrent sentence of two and a half years imprisonment. That means the total sentence I impose on you today is eight years and two months’ imprisonment.
[48]Thank you. Please stand down.
Isac J
Solicitors:
Crown Law, Wellington
0
16
0