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R v McClutchie

R v McClutchie

Case [2024] NZHC 901 23 April 2024

Manslaughter

Recklessly Causing Grievous Bodily Harm

Neglect of a Child

Sentencing

Defencelessness of the Victim

Seriousness of the Harm

Magnitude of the Breach of Trust

Criminal Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v McClutchie

Details

AGLC: R v McClutchie [2024] NZHC 901
Case: [2024] NZHC 901
Decision Date: 23 April 2024

CaseChat Overview and Summary

The case of R v McClutchie involved a sentencing hearing for Te Ngahuru Maxwell McClutchie, who had been convicted of manslaughter, causing grievous bodily harm with reckless disregard, and neglect of a child, leading to the death of a 19-month-old child, Casino Ataria-Wharehinga. The court was required to determine an appropriate sentence that considered the aggravating factors of the offence, the personal circumstances of the offender, and the principle of totality in sentencing.

The court identified several aggravating factors, including the defencelessness of the victim, the seriousness of the harm inflicted, the magnitude of the breach of trust, and the deliberate concealment of the offending. The court also considered the defendant's personal circumstances, including his history of addiction and deprivation, and his efforts to engage in rehabilitation. The court concluded that a starting point of eight years and two months imprisonment was appropriate for the manslaughter charge, with an additional uplift of two and a half years to account for the other charges, resulting in a total starting point of 10 years and six months. The court then applied a discount of 20 per cent to the starting point due to mitigating factors, including addiction and deprivation, reducing the sentence to eight years and two months imprisonment, with concurrent sentences for the other charges.

The court ultimately sentenced McClutchie to eight years and two months imprisonment for manslaughter, three years for causing grievous bodily harm with reckless disregard, and two and a half years for neglect of a child, to be served concurrently. The court also considered but decided against imposing a minimum period of imprisonment.

Orders