R v Mehrok

[2020] NZHC 2722

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2016-070-2233

[2020] NZHC 2722

THE QUEEN

v

SURENDER SINGH MEHROK

Hearing:	15 October 2020
Appearances:	K Raftery QC and J M Sutton for the Crown R Stevens and K Hadaway for the Defendant
Sentencing:	15 October 2020

SENTENCING NOTES OF GORDON J

Solicitors:           Crown Solicitor, Tauranga

Public Defence Service, Tauranga

Counsel:            K Raftery QC, Auckland

R v MEHROK [2020] NZHC 2722 [15 October 2020]

Introduction

[1]                  Mr Mehrok you are for sentence having been found guilty of manslaughter by a jury.

Facts

[2]                  The victim was Richard Royal Orif Takahi Winiata Uddin. Baby Royal, as he was known, was just 14 weeks old when he died. He was the infant son of Nikita Winiata-Uddin, who was, or had been, your partner.

[3]                  The events occurred in a house in Tauranga. You were living in the garage along with another boarder, Sukwinder Singh. Ms Winiata-Uddin and baby Royal were living in the house on the property. The tenancy was held by another woman, who I will refer to simply by her Christian name, Tatiana. She lived in the house along with her partner, their two children and Tatiana’s two children from a former relationship. The oldest child was a five year old boy, T. The youngest was still an infant, three months older than baby Royal.

[4]                  In the early evening of 7 June 2016, everyone was at home. Ms Winiata-Uddin, Tatiana and her partner together with one of their children went out to get takeaway pizza for dinner. They were away for about half an hour.

[5]                  You were left in charge of baby Royal while Sukwinder was in charge of Tatiana’s three children, the six month old and the two older boys.

[6]                  Initially you were all in the sitting room and the children were dressed ready for bed. After about 10 minutes baby Royal started to cry. You picked him up, walked around with him and tried to give him some milk. He did not stop crying. You went into one of the bedrooms carrying baby Royal on three or four occasions. Tatiana’s five year old son, T, saw you in the bedroom with baby Royal. Sukwinder did not see what happened as he remained in the lounge with the other children.

[7]                  T described your conduct towards baby Royal in various ways. He said in an interview on 8 June 2016 you threw the baby on the bed hard and hit the baby in the

face with your hand; he said in an interview on 11 August 2016 that you threw the baby on the bed, describing it as a little throw; in evidence taken on 13 December 2016 he said you threw the baby onto the bed and that the baby’s head nearly hit the wall. He also said you did not hit the baby. To other witnesses he said you had hit the baby and thrown the baby onto the bed; and that you threw the baby on the bed and the baby’s head hit the wall. Under cross-examination, in response to leading questions, he said that baby Royal “spewed up” on you; you got grumpy; you threw baby Royal; baby Royal’s head hit the wall and baby Royal fell onto the bed after his head hit the wall.

[8]                  The defence case at trial was that T saw the entirety of your conduct towards baby Royal. The Crown case was that he did not and that there was another blow or impact that he did not see. That submission had support from the Crown’s medical experts and the evidence that you went into the bedroom with baby Royal on three or four occasions. I will return to this issue shortly.

[9]                  When the other adults got back to the house, baby Royal was clearly unwell and they called 111. Having made that phone call, as the house was very close to the hospital, they got into a car and drove him there straightaway. Attempts were made to resuscitate him, but the evidence of the paediatrician was that baby Royal was in all likelihood dead on arrival at the hospital.

[10]              The post mortem examination determined the cause of death as blunt force craniocerebral trauma. There were a number of skull fractures, bleeding inside the brain and lacerations to the brain matter itself.

[11]              The pathologist also identified other non-fatal injuries including bruising to baby Royal’s left cheek and behind his right ear and distinct visible bruising to his forehead.

Nature of assault

[12]              I am required to set out the factual basis on which I sentence you. I must accept as proved those facts essential to a guilty verdict. However, in relation to facts disclosed by evidence in the trial, it is the Judge’s responsibility to set out what the

Judge finds to be established, provided that this is not inconsistent with the verdict of the jury.

[13]              You were charged with murder but the jury found you guilty of manslaughter. You accepted that you had caused the fatal injuries but your case at trial was that you did not have murderous intent.

[14]              At sentencing today Ms Hadaway, on your behalf, repeats the submission made by the defence to the jury that there was only one impact, that which was seen by T and that the fatal injuries were caused by you throwing baby Royal into the bedroom wall. Ms Hadaway submits that conclusion is supported by the evidence of Sukwinder Singh as to when he heard baby Royal stop crying. Ms Hadaway further submits the Crown medical witnesses could not exclude the possibility that the fatal injuries resulted from a single impact.

[15]              Mr Raftery QC for the Crown submits that what T saw was you throwing baby Royal onto the bed and his head then hit the wall. All the experts agreed that mechanism would not have  caused  the  injuries  the  baby  sustained.  Therefore, Mr Raftery submits, there must have been another blow or impact that T did not see. Mr Raftery submits the jury’s verdict of not guilty of murder is properly understood on the basis that the Crown had failed to satisfy them beyond reasonable doubt of the conscious appreciation of death, under s 167(b) of the Crimes Act 1961.

[16]              I consider it is a reasonable possibility that the Crown is correct in its submission.   I  say  that   for  two  reasons.   At  trial  you  called  a  psychiatrist,   Dr David Chaplow, who gave expert evidence that in an acute or hot situation, adolescents (who may range up to 25 years) will react without a deep appreciation of the consequences. Second, there was the weave pattern on the back of baby Royal’s head which could not have been caused by contact with the bedroom wall.

[17]              However, in the end, I consider it is not necessary to make findings as to exactly what T saw and whether there was one impact or more than one and I do not do so. That is because the Crown and defence medical experts agreed on the amount of force that you must have used to cause the injuries. A defence expert said the cranial

injuries were capable of being explained by “a single massive impact”. He said this was “a very great form of abuse with … extreme violence being applied”. The other defence expert agreed that the injuries resulted from massive force. Other terms used for the level of force were “significant” and “catastrophic”.

[18]              The injuries themselves were variously described by the Crown and defence medical experts as “extreme”; the baby’s skull was shattered like an eggshell; as the worst head injury they had seen; and equivalent to injuries seen on a baby whose head had been run over by a car in a driveway.

[19]              Ms Hadaway submits that this was a momentary loss of self-control on your part. I do not accept that. I have already referred to the other non-fatal injuries which I accept were caused by you at the same time as the fatal injuries. In addition to the throwing, T described you as hitting the baby twice. Nor was this an isolated incident in relation to children in the household. You had assaulted those other children on previous occasions albeit in a much less serious way.

[20]              In  sentencing  you  on  6  March  2018,1  following  your  guilty   pleas, Judge Mabey QC described the charges and the conduct as follows. There were representative charges alleging offences by you between October 2015 and June 2016. The sentencing remarks state that you would frequently assault the three eldest children of the tenant (Tatiana). The assaults consisted of slapping around the face, back and head. There was a specific charge in relation to one of the children. A member of the public noticed the child running onto the road. That person took action to take the child to a safe place and you were approached and asked if you were the father of the children. You responded by grabbing the youngest child and smacked him around the head with an open hand. Judge Mabey described you as an impatient babysitter, abusing a position of trust and showing no self-discipline when it came to the perceived unruliness of young children. He sentenced you to a period of imprisonment of five months.

1      R v Mehrok [2018] NZDC 4172.

[21]              I therefore proceed with your sentencing on the basis of the following factual findings:

(a)At the least you threw baby Royal;

(b)The force you used to inflict the fatal injuries to him was extreme;

(c)The resulting injuries were at the most severe end of the spectrum;

(d)In addition to your conduct causing the fatal injuries, at the same time, you assaulted baby Royal causing other non-fatal injuries that I have already described; and

(e)Your conduct did not result from a momentary and uncharacteristic loss of self-control.

Personal circumstances

[22]              You are currently 24 years old. At the time of the offending you were 19 years old. As I have already mentioned, you have previous convictions for family violence charges against other children living in the house. You were sentenced to concurrent terms of imprisonment for that offending.

[23]              You were born and raised in India and arrived in New Zealand in November 2014 to study. By the time you relocated to Tauranga in May 2015, your visa had expired. At the time of your offending, you were unlawfully in New Zealand. You are presently subject to a deportation order. You report you wish to return to India as soon as possible to assist your mother in running a family business which closed following your father’s death. The Immigration Service advised the pre-sentence report writer that an application would be made, on completion of any sentence of imprisonment, for your detention in custody until you can be returned to India.

Victim impact statements

[24]              I have read and acknowledge the victim impact statements of baby Royal’s parents. The loss of their near newborn baby has traumatised them and they continue

to  suffer  the  effects  of that loss.    His mother, Nikita, struggles to deal with her memories of the serious injuries inflicted on baby Royal.

Starting point

[25]              There is no guideline judgment or tariff case for manslaughter sentencing. The circumstances of offending vary widely and culpability reflects those specific circumstances. In consequence, as Thomas J observed in R v Huata, in a child manslaughter case like this one, “previous decisions must be applied with care as they represent both the level of criminality and the particular mitigating factors in the circumstances … The circumstances of other cases can guide but cannot govern”.2 The vulnerability of an infant victim or young child at the hands of an adult responsible for his or her care is a key feature of this type of offending. Violence directed at such a person is usually more serious than that directed at another adult as the victim is defenceless.3

[26]              The Crown submits a starting point of 10 years’ imprisonment or more is warranted. Ms Hadaway says an appropriate starting point is eight years’ imprisonment. Both counsel cite cases in support of their submission. The Crown cites R v Kereopa,4 R v Skerten,5 R v Broadhurst6 and R v Archer.7 Ms Hadaway cites as relevant R v Iorangi,8 R v Broadhurst,9 R v Archer10 and R v Sami.11 The difference largely turns on factual matters, as I have already mentioned. However, some analysis of comparable cases provides helpful guidance.

[27]              The age of a victim is a relevant consideration. The victims in these cases are always vulnerable, but a newborn baby or baby who is entirely reliant on adult carers for survival is particularly vulnerable. Also relevant is the nature of the force used and whether violence arose from a momentary loss of control. Finally, there is a question

2      R v Huata [2017] NZHC 704 at [15].

3      R v Leuta [2002] 1 NZLR 215 (CA) at [76]-[77], [81].

4      R v Kereopa [2016] NZHC 4664.

5      R v Skerten HC Whangarei CRI-2008-027-3118, 12 August 2010.

6      R v Broadhurst HC Auckland CRI 2006-057-001845, 24 April 2008.

7      R v Archer [2019] NZHC 3146.

8      R v Iorangi CA533/99, 30 March 2000.

9      R v Broadhurst HC Auckland CRI-2006-057-1845, 24 April 2008.

10     R v Archer, above n 7.

11     Sami v R [2019] NZCA 340, (2019) 29 CRNZ 252.

of a pattern of the application of force to children. This is less concerned with whether there was serious and ongoing abuse prior to death, which is a different category of offending, but whether a defendant habitually used force on a child or children.

[28]              In my view, cases involving toddlers can be distinguished from those involving infants. R v Skelton (a 16 month old victim where a starting point of nine years’ imprisonment was adopted), R v Broadhurst (a two year old victim where a starting point of eight years, six months’ imprisonment was adopted), R v Archer (a two year old victim where a starting point of eight years, six months’ imprisonment was adopted) all involved cases where the victims were toddlers. In Ikamanu v R, the victim was almost three years old at the time of her death.12 The Court of Appeal considered the starting point of nine years, six months’ imprisonment was within the range available to the sentencing Judge but added “a higher starting point could have been justified”.13

[29]              I find Woodcock v R14 and R v Kereopa15 provide helpful guidance in this case. In Woodcock, the victim was just over three months old. She died at the hands of her father after suffering serious head injuries. Medical evidence disclosed other significant but non-fatal injuries. The sentencing Judge adopted a starting point of  11 years’ imprisonment.

[30]              The Court of Appeal stated that “[w]hile only one fatal blow was struck, it must have been inflicted deliberately and with very considerable force”. A starting point of 10 years’ imprisonment was considered appropriate, given the deliberateness of the action, the extent of the force used and the vulnerability of a three month old child.

This combination placed the offending in a serious category.16

[31]              Referring to cases generally, the Court of Appeal noted that the absence of the aggravating feature of prior offending, which establishes a pattern of abuse, allowing the fatal blow to be properly seen as an isolated event reflecting a momentary and

12     Ikamanu v R [2013] NZCA 510.

13 At [60].

14     Woodcock v R [2010] NZCA 489.

15     R v Kereopa, above n 4.

16 At [42].

uncharacteristic loss of control, may mitigate the starting point depending on the circumstances.17 While I accept your other offending was to other children living at the house and much less serious than the defendant’s in Woodcock, I have already referred to a pattern of violence by you against those children and that this was not a situation of a momentary and uncharacteristic loss of control by you.18

[32]              The victim in Kereopa was a six-month-old infant. She was left in the defendant’s care for less than an hour. At some point, she suffered significant head injuries, which, according to the medical evidence, were equivalent to being hit by a high-speed vehicle. The sentencing Judge identified four aggravating factors. The young baby was highly vulnerable, she was struck with significant force, there was a profound breach of trust by an adult responsible for her care and safety and the defendant failed to seek medical assistance afterwards. Ms Hadaway draws my attention to this last factor. She submits it is not present in this case. I accept that submission but consider the other three factors were the most significant in arriving at the starting point.

[33]              In the circumstances of your offending, Mr Mehrok, the aggravating features are the exceptional vulnerability of the victim given his age and utter dependence on you as his carer to survive, the use of extreme violence to inflict serious and fatal injuries to his head and the profound breach of trust by you as the adult responsible for his care and safety. Finally, there is your use of violence against other children living at the house, which provides relevant context to your offending against baby Royal.

[34]              There are no mitigating features in your offending. As I have repeatedly said, baby Royal was a vulnerable baby who was left in your care. You applied significant force to his head using extreme violence and he sustained serious injuries which culminated in his death.

[35]              After taking account of the aggravating features already described, the cases I have referred to and the factors in s 9A of the Sentencing Act 2002, which is relevant

17 At [41].

18     Distinguishing this case from a key factor in Sami v R, above n 11, at [64].

because this is a case involving violence against a child, I consider the appropriate starting point is 10 years’ imprisonment.

[36]              In R v Tai,19 the Court of Appeal said that in manslaughter cases where Taueki v R20 is relevant, because significant violence has led to death, there are two options available to a sentencing judge. One approach is to assess the culpability of an offender by examining, among other matters, sentences in comparable cases. I have done this. Alternatively, a sentencing judge can consider the bands in Taueki and adjust for the fact that death has followed a serious assault. The Court of Appeal suggested, in R v Tai, that it is desirable for a sentence to be determined using both approaches, each providing a check on the other.21 I will now briefly consider the Taueki bands.

[37]              The application of the Taueki bands in manslaughter of a child was considered by the Court of Appeal in Ikamanu v R. In that case, the defendant had pulled his daughter (who was a preschool child) by the arm with considerable force and lost his grip which propelled her into a wall. She suffered serious head injuries, from which she ultimately died, and a fractured shoulder. The Court of Appeal doubted the offending came within band 3 (nine to 14 years’ imprisonment) and concluded it fell within the upper range of band 2 (five to 10 years’ imprisonment).22

[38]              Here, in contrast to that case, the head injuries suffered by baby Royal were directly caused by you. This case can be described as an attack to the head as well as a situation where extreme violence was applied to a young and extraordinarily vulnerable victim. The terrible injuries he suffered were catastrophic and caused his death. In my view, this distinguishes your case from Ikamanu. I consider your offending falls within band 3, at the lower end, rather than the upper end of band 2. This is consistent with the starting point of 10 years’ imprisonment I have adopted.

19     R v Tai [2010] NZCA 598.

20     R v Taueki [2005] 3 NZLR 372 (CA).

21     R v Tai, above n 19, at [12].

22     Ikamanu v R, above n 12.

Adjustments for personal factors

[39]              Some uplift is necessary to reflect your previous convictions for violence against children. An uplift for prior offending recognises a higher risk of re-offending and the need for deterrence.23 However, caution is necessary: you should not be subject to an additional sentence for offending for which you have already served a sentence. In my view, an uplift of three months’ imprisonment is appropriate.

[40]              You were 19 years old at the time of your offending. The Crown submits that in finding you not guilty of murder, the jury took account of your age by finding that you did not appreciate the death of baby Royal would follow from your actions. The Crown submits that no discount for youth is justified in consequence. Even accepting that was the basis for the jury’s verdict, that is not a principled reason for not giving a discount for youth. Ms Hadaway submits a discount of 15 per cent for youth is justified.

[41]              The Court of Appeal has addressed the impact of youth on sentencing in      R v Churchward.24 A number of considerations were identified in that decision. The most relevant are impulsiveness and your capacity for rehabilitation. While I have found your actions were not a momentary loss of self-control, your willingness to resort to violence against much younger and vulnerable children and babies would suggest a level of impulsiveness. This is associated with youth. As to rehabilitation, the pre-sentence report writer emphasises limited progress in this regard and that is unfortunate. On the other hand, I am told you have worked well at tasks assigned to you while in prison. You may well have a greater capacity for rehabilitation but there is insufficient evidence to demonstrate that.

[42]              I consider a discount of five per cent appropriately recognises youth as a mitigating factor.

[43]              Ms Hadaway submits a discount is available to reflect the additional difficulties you face in serving a term of imprisonment. You have little family support

23     See R v Frater [2019] NZHC 3326 at [26], per Cooke J.

24     R v Churchward [2011] NZCA 531, (2011) 25 CRNZ 446.

and are a considerable distance from your home in India. Following your father’s death, your family’s business has failed. In Sami, the Court of Appeal dealt with a defendant in circumstances similar to yours.25 She was convicted of the manslaughter of a very young victim and was sentenced to a term of imprisonment. Her family was in another country, though she did have support in New Zealand. English was not her first language and she was very young. While serving a term of imprisonment, she was also separated from a very young child. The Court of Appeal considered the case involved “a distinctive combination of factors that merited recognition”26 and added a discount of a 10 per cent for this factor.

[44]              For completeness on personal factors, I note that Ms Hadaway accepts that you cannot be afforded a discount for remorse.

[45]              An overall discount for personal circumstances of five per cent is appropriate in your case.

[46]              Ms Hadaway also submits that you should receive a discount for steps taken to shorten the proceedings or reduce costs.27 She says admissions made by you as to the cause of baby Royal’s death avoided the Crown calling 11 witnesses at the trial. I have decided against a discount on this ground for two reasons. First, you will receive a distinct discount for your offer to plead guilty to manslaughter, which I will address shortly, and there is a risk of double counting on that point. Your admission that you caused the victim’s death was the basis of that offer. Second, Ms Hadaway acknowledges that your admission permitted the severance of the other violence charges. Any benefits arising from shortening the proceedings or reducing their cost are outweighed by the advantage to you of that outcome.

[47]              Lastly, there is your offer to plead guilty to a charge of manslaughter. The Crown submits that your offer was not at the earliest opportunity and that any discount should be small. Ms Hadaway says you should receive a discount of 25 per cent, the

25     Sami v R, above n 11.

26 At [67].

27     Section 9(2)(fa).

maximum available.28 The offer, if accepted, would have avoided both trials, it is submitted.

[48]              Your offer came in February 2017 after receiving further disclosure from the Crown’s  medical  experts.   This  evidence  was  reviewed  by  your  own  expert. Ms Hadaway submits the offer was made at the first reasonable opportunity. The medical evidence was available and you had received independent expert advice on that evidence. To complete the broader procedural context, the first trial was due to commence in February 2017. However, the Crown applied for an adjournment to appeal the severance order. The first trial then took place in June 2017.

[49]              I do not consider your offer to plead guilty came at the earliest opportunity. It was made on the eve of the first trial. The medical evidence was of lesser significance in circumstances where your use of force against the victim was the only explanation for his death. This contrasts with Jeffries-Smith v R, cited by Ms Hadaway, where the Court of Appeal accepted the defendant expressed a willingness to plead guilty to manslaughter at an early stage and communicated this to counsel.29 Whether due to a misunderstanding or a change in counsel, this offer was not conveyed to the Crown.

[50]              The Court of Appeal was unable to determine with precision when the defendant expressed his willingness to plead guilty to manslaughter. However, the Court was satisfied it was at an early stage: the offending took place at the end of December 2017, a month later the defendant indicated to his counsel he was prepared to plead guilty to manslaughter, and, even if a later date was taken, it was still well before the trial commenced in early May 2019. The Court of Appeal considered a discount of 20 per cent was appropriate in that case.

[51]              Your offending occurred in June 2016 and your offer to plead guilty came about seven months later, just prior to the planned start of the first trial. The strength of the Crown case is also relevant.30 However, this should not be overstated,31 and the Court of Appeal has recently said that there is no inverse relationship between the strength

28     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [25].

29     Jefferies-Smith v R [2020] NZCA 315 at [43].

30     Hessell v R, above n 28, at [74].

31     Jefferies-Smith v R, above n 29, at [45].

of the Crown case and the extent of a guilty plea discount.32 Nevertheless, the Crown case against you was strong; you were the only person who could have caused baby Royal’s death.

[52]              In these circumstances, and particularly taking into account the timing of your guilty plea, I have decided a discount of 15 per cent is justified.

Minimum period of imprisonment

[53]              Section 86 of the Act sets out the circumstances where an MPI may be imposed with a determinate sentence of imprisonment. This requires a two-stage process, described by the Court of Appeal in Ikamanu v R in the following way:33

In R v Brown this Court made it plain that when a minimum non-parole period is under consideration the Judge must carry out a two-stage process. The first involves fixing the maximum length of the sentence by reference to all relevant sentencing considerations. Secondly, and as a separate exercise, it is necessary to consider whether the offending itself is sufficiently serious that serving the normal minimum period of one-third of the sentence will not be enough to punish, deter and denounce the offending.

[54]              I must consider whether the minimum period which otherwise applies would be insufficient for the purposes of holding you accountable for the harm you have done to baby Royal, his whānau and the community, denouncing your conduct, deterring you and others from engaging in similar behaviour and to protect the community from you. The Court of Appeal has held that all of these factors must be considered when assessing whether an MPI is required.34

[55]              Moreover, s 9A of the Act provides for additional factors to be considered in cases involving violence against a child under the age of 14 years. As I have already noted, this section applies in this case. Amongst the relevant aggravating factors under that section are the vulnerability of the victim, the breach of trust which occurred between a caregiver and an infant and the effect of the harm, which was to cause baby Royal’s death.

32     Miller v R [2019] NZCA 570 at [36].

33     Ikamanu v R, above n 12, at [72].

34     R v Donnelly [2011] NZCA 433 at [26].

[56]              In Ikamanu v R, the Court of Appeal noted other cases where an order requiring the defendant serve a minimum period was made “as a response to violent and brutal treatment of a defenceless and vulnerable child to whom duties of trust and responsibility were owed”.35

[57]              The Crown submits an MPI of 50 to 60 per cent of the sentence imposed is appropriate in this case. On your behalf, Ms Hadaway submits an MPI is not justified as it would serve no useful purpose. She notes you have served nearly four years, five months in custody. She also notes that once you have served your sentence, or if you are granted parole, you will immediately be transferred to Police custody. The Immigration Service has indicated that you will be the subject of an application for detention in custody pending an available flight to India. Ms Hadaway submits there is no prospect of your release into the community and so protection of the community is not a relevant factor in your case.

[58]              I accept that latter submission. However, it is only one of the four factors for consideration under s 86 and, as I have said, there are three others which are relevant in terms of s 9A. In my view, a minimum term of imprisonment is required here and for these reasons. A vulnerable child has tragically died as a consequence of your actions. Release after only serving two years, seven months’ imprisonment (one third of your sentence) would be insufficient to hold you accountable for the harm you have caused, appropriately denounce your conduct and deter similar offending by you and others. This also reflects the vulnerability of baby Royal, the seriousness of your breach of trust and that the consequences of your actions was his death.

[59]              I will therefore order you serve a minimum term of 50 per cent of the sentence I impose.

Result

[60]Mr Mehrok, please stand.

[61]I sentence you to seven years, nine months’ imprisonment.

35 At [73].

[62]              You must serve a minimum period of imprisonment of 50 per cent of that sentence.

Gordon J