R v McGregor

[2013] NZHC 3414

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2013-083-1268 [2013] NZHC 3414

THE QUEEN

v

THOMAS TAMATEA ARIKINUI MCGREGOR

Hearing:                   18 December 2013

Counsel:                  L C Rowe for Crown

D M Goodlet for Defendant

Sentence:                 18 December 2013

SENTENCE OF RONALD YOUNG J

[1]      Mr McGregor  I now convict  you of murder and  wounding with reckless disregard for the safety of Te Anahera.  The first thing I want to do is give you a first strike warning. After I do that I will start on sentencing remarks.

[2]      Given your conviction for murder you are now subject to the three strikes law.  I am now going to give you a warning of the consequences of another serious violent conviction.  You will also be given a written notice which contains a list of these ‘serious violent offences’.

[3]      If  you  are  convicted  of  any  serious  violent  offence  other  than  murder committed after this warning and if a Judge imposes a sentence of imprisonment

then you will serve that sentence without parole or early release.

R v MCGREGOR [2013] NZHC 3414 [18 December 2013]

[4]      If you are convicted of murder after this warning then you must be sentenced to life imprisonment and that will be served  without parole unless it would be manifestly unjust to do so.  In that event the Judge must sentence you to a minimum term of imprisonment.

[5]      Mr McGregor  you  have  pleaded  guilty  to  a  charge  that  with  reckless disregard  for  the  safety  of  Te Anahera  Topia-McGregor  you  wounded  her  and secondly, on 12 January 2012 you murdered Hinekawa Topia-McGregor.  Your pleas came after a sentence indication hearing and the two young babies affected are your children.

[6]      Firstly the facts.   In 2009 you began a relationship with Ms Topia and you began living together in 2010.  She fell pregnant and triplets, all girls, were born on

9 November 2011.  They were two months premature.  Ms Topia was in Wellington Hospital initially before being moved to Wanganui Hospital.  The triplets remained in hospital until early December, about a month after their birth.  At that stage they were healthy and without injuries.

[7]      You and Ms Topia lived with your parents in Waitotara initially until near Christmas 2011.  You, your partner and the triplets then moved to Wanganui.  You often had the sole or joint care of the babies particularly of Te Anahera.  On at least four occasions when you were left alone with her you shook her forcefully and she came in contact then with a soft surface.  This bought about rapid acceleration and deceleration of her head.  It caused at least four haemorrhages in her brain.  These shakings occurred over three weeks until about 12 January 2012.

[8]      As to Hinekawa she was looked after for a period by other members of your broader family to give you and Hinekawa’s mother a break.  On 12 January 2012, Hinekawa was returned to your care. At that time she was well with no injuries.

[9]      That day you sent a message to your partner saying that Hinekawa was home and by then you had all three triplets in your care.  You urged your partner to come home.  During the course of the next 45 minutes you went into the children’s room. You picked Hinekawa up from her cot, swung her or threw her against the wall or the

floor or another hard object.  The force of that violence caused a fracture to the right hand side of her scalp.  She had serious brain bleeding and bruising.  She became lifeless.  You tried to revive her.  You sent a text message to your partner saying she should come home now because something was wrong with Hinekawa and that she was not breathing.

[10]     When your partner arrived it was clear that Hinekawa was unconscious.  She was taken to the emergency department of Wanganui Hospital.  Attempts were made to revive her. You were asked by those treating her whether she had been bumped on the head or fallen but you denied it.  Initially you denied any involvement.  You then claimed that Hinekawa may have been injured on the way to hospital when a car door hit her on the right side of her head.  But by your pleas you have now accepted responsibility for her death.

[11]     The pre-sentence report provides some background.   You have had three children by a previous relationship whom you rarely see.  But you have had an active life involved in various cultural activities on the Marae and a close relationship with your extended family.

[12]     The probation report notes that while you acknowledge being responsible for the injuries to two of your three triplets, you minimised the degree of force involved and the nature of the intent behind your actions.  You mentioned that you were under stress caring for three infants without, you said, the full support of their mother.  You expressed remorse and said that you were aware of the hurt you had caused to many.

[13]     The probation officer notes that your past does not show any propensity for violence and in many ways it is difficult to understand how or why this happened.  I note  that  you  have  only  minor  previous  convictions  none  of  which  are  of significance and none of which I take into account.

[14]     The Crown say that the proper starting point is life imprisonment with a minimum period of 19 years imprisonment.  They stress especially the age of your daughter and her special vulnerability.   When you killed her the Crown stress she

was completely dependent upon you for her health and well being.   The killing, therefore, involves, they say, a significant breach of trust.

[15]     Adding to the seriousness was your violence to the second of your daughters. The Crown accept that some deduction for your plea of guilty should be made but they do not accept any deduction for any other mitigation.  They say a discount of no more than two years is appropriate for a minimum period of imprisonment of 17 years together with a life sentence which must follow.

[16]     I have read your counsel’s submissions and I take into account also what she has said to me today.  She accepts that it cannot be properly argued that the starting point  begins  at  17 years’  imprisonment  given  the  particular  vulnerability  of Hinekawa.

[17]     Although she accepts that this is an extremely serious case involving violence to two children, this was not, she stresses, prolonged violence or particular cruelty that is the feature of some cases.  She says overall a proper starting point of 18 years is appropriate.  That your plea of guilty should reduce that below 17 years and that there should be further reductions for remorse and the background circumstances relating to your personality justifies a further reduction.

[18]     I have read the victim impact statements and wish to acknowledge them and the victims of this offending.  The statements are from the members of the family. They speak of the deep sadness that this loss has caused.  They express their surprise that you had within you the capacity to kill your young child and seriously injure another.  Family members have lost a treasured child.  You will no doubt carry the scar of this offending for your life, as so you should.

[19]     This was a terrible killing.  It is shocking to read of such violence to babies. You could easily have killed your second child.   In reading your background it is difficult to understand how you have come to this.  You have had a good upbringing. You have been involved in your own culture. You have had a full life and you do not have a history of violence or alcohol or drug abuse.  In the end only you know why this has happened.

[20]     As the Crown have said you were responsible for very young children.   I accept and understand that bringing up triplets is highly stressful.  But it is also clear to me that you had significant family support and assistance.  If you felt the situation was getting out of control then family members were clearly available who could help you.

[21]     My sentence must reflect the true seriousness of this offending.  I agree with the Crown that a minimum period of imprisonment of at least 19 years as a start sentence is appropriate.  There is no doubt at all that the killing of a vulnerable child justifies such a start sentence together with your violence to your other child.

[22]     I am not satisfied that there is anything in the report of Dr Nuth that justifies a further reduction in sentence nor anything with regard to remorse that justifies a further reduction of sentence such that a minimum period of 17 years would be manifestly unjust.

[23]   I accept that there is a proper deduction for your acknowledgement of responsibility by your plea of guilty.  But for that I do not think any deduction should reduce that sentence below the 17 year minimum period.  The plea came relatively late. The offending involved two babies, one killed, one seriously injured.

[24]     On the charge, therefore, of murder you are sentenced to life imprisonment with a minimum period of 17 years.   On the charge with wounding with reckless disregard for safety, you are convicted and sentenced to five years’ imprisonment.

You are discharged on all other counts.

Ronald Young J

Solicitors:

Armstrong Barton, Crown Solicitors, Wanganui

D M Goodlet, Barrister & Solicitor, Wanganui