R v Mitchell

[2017] NZHC 1391

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2016-019-4420 [2017] NZHC 1391

THE QUEEN

v

SHAMROCK FAYNE MITCHELL

Appearances:

R W Donnelly for Crown

J A Westgate for Defendant

Sentencing:

22 June 2017

SENTENCING AND REMARKS OF NICHOLAS DAVIDSON J

Introduction

[1]      Mr Mitchell, you appear for sentence having pleaded guilty to one count of manslaughter for causing the death of Honour Ashworth by an unlawful act, namely assault. You may be seated until I ask you to stand.

Background

[2]      The victim is your son, Honour, born to you and Jenna, aged 11 weeks at the time of his death.   He was born at Southland Hospital on the 28th  October 2013. He spent some days in the neo natal unit due to respiratory difficulties, before being allowed to go home.

[3]      On 13 January 2014, Honour’s mother Jenna, went to work and left him in your sole care in your home.   A friend of yours dropped in to see you for about

R v SHAMROCK FAYNE MITCHELL [2017] NZHC 1391 [22 June 2017]

ten minutes.  Honour was awake, on the couch and happy.  He was a happy, healthy boy who was not suffering from any sickness, other than a slight cough.

[4]      Then, at 7:23pm, you called 111 for an ambulance.  You said Honour must have fallen off the couch and that he was not breathing.  You were told how to give him CPR until emergency services arrived.

[5]      When the ambulance arrived, Honour was not responsive.   The ambulance officers took him to Southland Hospital and you travelled with him.  Resuscitation efforts continued.   A CT scan was carried out and which revealed subdural haemorrhaging to the brain.  An ophthalmologist examined Honour and found that he had severe retinal haemorrhaging in both eyes.

[6]      Starship Hospital in Auckland was consulted and Honour, Jenna and you were flown to Auckland in the early hours of 14 January 2014.   Honour died that night.

[7]      The post mortem conducted by Forensic Pathologist Dr Morrow concluded that the direct cause of death was ischemic encephalopathy.  He said that a fall from a  low  couch  was  unlikely to  account  for  the  degree  of  trauma.   You  had  told Sergeant McKenzie at Southland Hospital that Honour had fallen off the couch on the night of 13 January 2014.  Dr Morrow sought a second opinion from Dr Colin Smith who came to the same conclusion.   Dr Smith suspected that abusive head trauma was the most likely cause of Honour’s death.

[8]      For a long time no charge was laid.  Suspicion by the Police was not proof. You were the only person with knowledge of the facts.

[9]      The Police interviewed you on the 24th January 2016. You denied shaking, or being violent, to Honour.  You said that after feeding him, you put him on the couch where he was awake and kicking, and you went to the back door to have a smoke. After that, there was a knock on the door and your friend arrived and stayed for five to ten minutes.   Honour was still awake.  You said that after your friend left, Honour dozed off on the couch and you went to your bedroom for a nap.

[10]     You said that you woke up to hear Honour screaming and when you ran to the room you saw Honour on the ground. You said you picked him up and he went limp. You said you noticed stuff coming out of his nose and mouth, but it was not milk.

[11]     You said that you lifted him to your shoulder and gave him a bit of a shake. You insisted that the shake would not have hurt him. You said you were trying to get stuff out of his mouth.

[12]     You were interviewed a second time by the Police on the 20th  July 2016. Confronted with the medical evidence of the reasons Honour died, you admitted to having shaken him.   You said when you woke up to Honour crying, you picked him up and walked him around the room to try and calm him, without success.   You reheated a part full bottle of milk formula.   Honour would not take the milk, and would not stop crying.  You said that while holding him under your arms, you shook him, and that was when Honour’s head went limp. This was the first time you admitted shaking him in this way, two years after he died.

[13]     Following   this   second   interview,   further   opinions   were   sought   from Dr Morrow and Dr Smith.   Dr Morrow said that shaking was consistent with the cause of the death.  Dr Smith stated that while there is no definitive scientific basis, in his opinion the neuropathology observed is most likely the result of an inflicted head injury by shaking. Looking back, the Starship Report in 2014 said:

Examination of his fundi had revealed extensive bilateral retinal haemorrhages and our overall assessment of non accidental trauma, complicated by cardiac arrest, was apparent from the outset.

Sentencing Principles

[14]     I  must  have  regard  to  the  purposes  and  principles  of  sentencing  in  the Sentencing Act 2002 and case law.  These include imposing a sentence which holds you accountable for the harm done to Honour, Jenna, his whanau, and to the community.1     It must promote a sense of responsibility in you for the harm, and denounce the conduct in which you were involved.2      It must deter you and others

from committing such offences,3 and the sentence must protect the community from any further offending by you.4

The Victim Impact Statements

[15]     The Victim Impact Statements read to the Court are short and heartbreaking.

[16]     People affected by crime, and in particular by the unlawful death of a child, express themselves better in their grief than a Judge can ever do.  The effect of your actions must be brought to account, and they are felt first by Honour, and Jenna, and his close whanau.

[17]     I take some elements which bear on sentencing to show the impact on the family.  I do this because my sentencing is a judgment, and I must record this.

[18]     Jenna,  as  Honour’s  mother,  had  everything to  live for as  a hardworking mother of two beautiful children.  She has been stopped in her tracks by grief.  The discovery of how Honour died, in her words, “ripped her soul to pieces”.  This is the effect of violence which causes death, especially when that death is of such a loved member of a family.  The loss carries on, and its effect will forever be felt by Jenna and the whole whanau.

[19]     Robert is Jenna’s father and Honour’s grandfather.  He has done what he has had to do to support the family and his simple statement of what he did after, in his words, they “brought Honour’s wee body back home”, captures the cold reality of the consequences of what you did.  Yet he thought that you loved him as much as other members of the family.    Robert lost his first grandson, whom he so much wanted to help bring up.

[20]     Kaye is Honour’s grandmother.   She at first believed  your story of how Honour fell off the couch.  She feels the weight of guilt that she did not protect her family from you.   Her instincts warned her about you, and she says, a piece of

her has died.  She would prefer that you never touch another baby or family.  You have another family now.

[21]     Linda is Honour’s Great Aunty, Jenna’s Aunt.   You were welcomed into Jenna’s family.  In her way she too reminds us of what Honour and Jenna and the whanau lost.  Jenna wanted a girl and a boy.  A girl named ‘Peace’ and a boy named

‘Honour’.  Linda says the family will stay together, as they must.

Court sympathy

[22]     All of us in the Court today are moved and affected by what happened to Honour and what has happened to the family.  I express my deep sympathy on behalf of the Court, and the wider community.  It is a tragedy beyond all measure, most of all for Honour, who had so much life before him.

The approach required by law

[23]     It is right that I explain to you, and the family, and the community, that the sentence I impose is that which is required by law.  It is not simply a sentence to be imposed in my discretion.  It is not a sentence for murder.  It is instead a sentence which reflects the guideline judgments of the Court of Appeal for manslaughter of a child, and High Court judgments, characterised by your deep and fatal breach of trust when asked to care for and protect your infant son.

[24]     Violence against  infants  was  marked  out  in  stark terms  by the Court  of

Appeal in a case of R v Letua. The Court said:5

Violence inflicted upon a child is worse than that directed at another adult. Defencelessness and vulnerability are significant features, as is abuse of a position of power and responsibility. The fragility of young children, particularly infants, is frequently referred to, and too often overlooked. The lethal consequences of shaking and striking babies are often enough publicised. There can be little reduction in criminality these days for a claim that the danger was not realised.

[25]     The sentencing process requires me to begin by finding the starting point appropriate for this offending after assessing your culpability, and the gravity of the

5      R v Letua [2002] 1 NZLR 215 (CA) at [77].

offence, before taking into account any matters personal to you.  I want to interpose here to say that there have been responsible submissions by the Crown and your defence counsel, Mr Westgate. That is what I would expect.

[26]     After coming to the starting point, I will consider personal factors and decide whether they warrant an increase or reduction in the starting point, and then apply a discount for your guilty plea.  Throughout this I must have regard to the purposes and principles of sentencing, set out in the Sentencing Act 2002.

[27]     Jenna  and  the  family  will  have  been  advised  by  the  Crown  through Mr Donnelly, and you have heard, of the guideline judgments, to some of which I will refer.  The sentence I impose will follow the guidelines, but it will never do justice as Jenna and her family will feel required right now.  They will find it hard to understand  how  it  can  be  that  the  sentence  imposed,  which  is  directed  by judgments of the Courts, and should be so far apart from what they think should apply.  I will try to explain the reasoning of the Courts to the family.

Starting point

[28]   The gravity of your offending is reflected first in Honour’s extreme vulnerability.  He was a little baby.  Some sentencing authorities involve offenders with an impaired mental state, which does not apply in your case.  You were that night all that Honour had to protect and look after him.  He could not have been a more vulnerable victim.  You were his father and there is no greater breach of trust than by a parent to his or her child.  There has been emotional harm beyond measure to Honour’s family.  The violence occurred in your home, and in the national context as Mr Donnelly mentioned, it requires emphatic denunciation as home is supposed to be a place of safety, particularly for little children.   You were untruthful in your account of what happened, even when asked at the time, so the medical response was not fully informed, until you were forced to face the evidence in the medical reports. This concealment is an aggravating fact.

[29]     At its most basic, you shook an 11 week old infant, your son, and caused his death.  It is without doubt an act of violence.

[30]     Mr Westgate  does  not  depart  much  from  the  Crown  submission  as  to  a starting point.  Mr Donnelly says the starting point should be five years six months, and Mr Westgate five years.  Mr Westgate refers to the possibility of a prior injury, which is not attributable to you, because one pathologist’s report refers to an injury, so he says the amount of force required to cause further injury may have been less than that to an uninjured infant.  I do not regard this as of any weight.  It is simply not substantiated.  It is speculative. The injuries caused by you are quite clear on the medical evidence.

[31]     Mr Westgate refers to the judgment in R v Tukiwaho,6  where Justice Lang referred to manslaughter caused by intentional violence towards a child, and that a starting  point  of  between  five  and  seven  years  imprisonment  can  be  expected. Mr Westgate says the starting point should be no more than five years because Honour had no other injuries, and while the shaking was no doubt “outside normal handling”,  it was  “unlikely to  have been  extreme”.   There was no  evidence of forceful grip marks on Honour, and he submits this was an isolated incident, and not part of a pattern of abusive behaviour towards Honour.  This is so in that no other abuse is attributed to you by the Crown.

[32]     Mr Donnelly for the Crown refers to the Court of Appeal judgment R v Letua which put aside tariffs for violent offending against children causing death.7    The circumstances of such deaths are so varied that meaningful guidance when assessing culpability is not feasible.  Factual comparisons must be made.

[33]     I  hope  by  doing  so  the  family  can  understand  the  sheer  range  of circumstances in which people come before the Court for manslaughter of a child.

[34]     In the case of R v Iorangi, the appellant (or defendant) hit a 17 month old child he was looking after while his mother was in the shower.8  The child cried. The appellant  threw  him  across  the  room.    He  assaulted  the  child  on  two  previous

occasions,  including  one  where  he  head  butted  him,  and  another  when  he  was

6      R v Tukiwaho [2012] NZHC 1193.

7      R v Leauta, above n 5.

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

reported to have given him heavy smacks. The starting point adopted was six years. This was violence on several occasions, with different forms of assault.

[35]     In R v Pene, the defendant was the foster mother of a 13 months infant.9

He died because the defendant, during the night, hit him on the head three or four times and angrily shook him because he was crying.   These assaults damaged his spinal cord, which compromised his respiratory function.  He suffered brain damage, leading to his death.  On a Solicitor General’s appeal, that is an appeal brought by the Crown, the Court of Appeal held that a starting point of five to seven years was appropriate in those circumstances, and a starting point of five years was adopted.

[36]     In R v Kinraid, the defendant lay his infant face down on a pillow in an attempt to stop her getting out of bed.10   He then applied force for five to ten minutes in an attempt to stop her getting up.  Tragically, the infant died.  Justice Ellis adopted a starting point of six and half years imprisonment.

[37]     Parliament amended the Sentencing Act to emphasise its concern about cases involving violence against children under 14 years.  Section 9A was inserted into the Sentencing Act by s 4 of the Sentencing (Offences Against Children) Amendment Act 2008.  It states that the Court must take into account aggravating factors such as the defenceless state of the child and the scale of the breach of a relationship of trust when sentencing in a case involving violence against a child.11     R v Pene,12  and

R v Kinraid,13    among  other  cases,  recognised  Parliament’s  signal  for  tougher

sentences for violent offending against children.  I do so here.

[38]     Mr Westgate has  cited  R  v Tukiwaho,14   where  a  child  suffocated on  his mother’s shoulder.  The case demonstrates the breadth of the offence in law.  The basis of the manslaughter charge was the mother putting him in an unsafe sleeping environment.  This was a very different case.  But the Judge said the child had no

means of defending for himself.  The Judge said “He trusted you for his security and

9      R v Pene [2010] NZCA 387.

10     R v Kinraid [2017] NZHC 233.

11     Sentencing Act 2002, s 9(A)(2).

12     R v Pene, above n 9, at [13].

13     R v Kinraid, above n 10, at [19].

14     R v Tukiwaho, above n 6.

you failed to provide him with it”.  It was a crime of omission, a failure to take basic steps to keep the child safe and secure.  Your case is similar to the extent there was a gross breach of trust, but that case was one of default by a mother, and yours was an act of assault on an infant.   That was a crime of omission.   Yours is a crime of commission, what you did to Honour.

[39]     The sentences range widely with very different facts, and Mr Donnelly has properly recognised that point.   In the case of R v Wichman,15  there were young loving parents, twins been born prematurely.   In R v Gordon,16  a child was shaken causing fatal injuries.  Post natal depression was involved.  In R v Paea,17 there was a head injury from shaking a seven week old child.  The defendant there suffered a

personality disorder triggered by severe abuse in his own past.

[40]     Having considered the relevant authorities and the legislative amendment, I adopt a starting point of six years imprisonment.   In setting the starting point, I recognise the aggravating features and the gravity features of a defenceless infant, the gross breach of trust, the injuries causing death, and the devastating impact it had on Honour’s own life, that of his mother, and the whanau.  I bring to account your concealment of what you did in assessing gravity which I regard as an aggravating factor.

Personal Factors and Guilty plea

[41]     There  is  a  factor  which  in  your  case  stands  out  and  I  believe  must  be emphasised in the sentencing.  The Crown accepts this, and Mr Westgate emphasises it. Your actions came “out of the blue”.

[42]     You are, or were, 44 years old and have no relevant history of violence, nor relevant criminal record, so no uplift is required.  This emphasises the frailty of a little child, here a baby, to unexpected and physical force.   It is for the whole community to grasp that babies, infants, and young children are so vulnerable to

force, and must be nurtured and protected, never hurt.   But you had no history of

15     R v Wichman [2016] NZHC 1663.

16     R v Gordon CA276/04, 16 December 2004.

17     R v Paea [2016] NZHC 822.

such hurt, of children, or abuse.  That is why your case stands out in that particular regard.

The PAC Report

[43]     What is called the PAC Report, the Probation Report, or Report to the Court, assesses you as posing a low risk of re-offending, but still posing a high risk of harm to others should you do so, and I have a clear sense that you do not fully grasp the meaning and significance of what you have done.   Somehow, your sentence must promote in you a sense of responsibility for the loss of Honour’s life.

[44]     Your sense of responsibility should be real.  The PAC Report says that you are in a new relationship and you now have a son.  You will leave Southland after your imprisonment.  You will return to the North Island on release from prison.  You have good family support. You are fortunate.

[45]     The Crown makes no allowance for remorse.   Mr Westgate, however, says that you were, and are, remorseful, but strangely you still say that you were trying to help your son when you shook him.

[46]     You told the Probation Officer that you were remorseful for Honour’s death and the impact on the family.  Your letter to the family, which I have read, expresses your sorrow for the “heartache and sorrow I have caused”.  They have that letter, or should have it.  Most of what you said is expressed in a relatively unemotional way but you acknowledge having let Honour down “when he needed me the most”. There is here an element of remorse, but it is not expressed in a way which should reflect in discount.

[47]     The Crown says that a discount of 20 per cent is warranted for your guilty plea.     You  were  first  charged  with  murder,  and  then  pleaded  promptly  to manslaughter by entering a plea of guilty.  However, you did not own up to what you did when you were confronted and asked about it when Honour died, and before then.  You concealed the truth and it took two years to uncover that while the Police investigated and Jenna and the whanau were left in doubt.  You then challenged the medical evidence as was your right.   I am not prepared to allow a 25 per cent

discount in these circumstances.  I consider the Crown’s submissions are correct, that a 20 per cent discount should apply.

[48]     The adjusted starting point is therefore six years imprisonment discounted by

20 per cent to four years nine months.

[49]     I  consider  that  to  meet,  to  this  point,  the  purposes  and  principles  of sentencing in sections 7 and 8 of the Sentencing Act 2002. It reflects holding you accountable, denunciation, deterrence, and a protection of other children.   It also brings  to  account  s 8  factors,  some  already brought  to  account  in  reaching  the starting point.

Minimum period of imprisonment

[50]     A Court may order a minimum period of imprisonment where the sentence is more than two  years.18     The primary purpose of setting a minimum period of imprisonment is to hold the offender accountable for the harm done, denounce the conduct, and deter the offender and other persons from committing a similar crime, and to protect the community from the offender.  It may not be more than two-thirds of the full sentence.

[51]     The Court of Appeal has said that this provision applies where one-third of the nominal sentence is insufficient for all or any of these four purposes.19    In my view, each of these elements is in this case applicable. The element of deterrence has particular application, but all elements are relevant in your case. Without a minimum period of imprisonment the sentence in its effect is patently insufficient in my view.

[52]     I assess the minimum period of imprisonment at two years six months, which happens to correspond with the submission made by Mr Donnelly of the Crown.

18     Section 86(1) Sentencing Act 2000.

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

Sentence

[53]     Mr Mitchell, please stand.  I sentence you on one count of manslaughter to four  years  nine  months  imprisonment.    You  will  serve  two  years  six  months minimum before you are eligible for parole.

Three Strikes

[54]     I now must give you what is called the ‘Three Strikes Warning’. Given your conviction for manslaughter, you are now subject to what is called the “three strikes law”.   I must give you a warning of the consequences of another serious violence conviction.  You will also be given a written notice outlining these consequences, with a list of those ‘serious violent offences’.

(1)If you are convicted of any serious violent offence or offences other than murder after this warning and if a Judge imposes a sentence of imprisonment then you  will serve that sentence without parole or early release.

(2)If you are convicted of murder, committed after this warning then you must  be  sentenced  to  life  imprisonment,  without  parole,  unless  it would be manifestly unjust.   In that event the Judge must sentence you to a minimum term of imprisonment.

Stand down

[55]     Stand down Mr Mitchell.

……………………………….

Nicholas Davidson J

Solicitors:

Preston Russell (Crown Solicitors), Invercargill

John A Westgate, Barrister, Dunedin