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…

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 Mitchell

Details

AGLC: R v Mitchell [2017] NZHC 1391
Case: [2017] NZHC 1391
Decision Date: 22 June 2017

CaseChat Overview and Summary

The case of R v Mitchell involved the defendant, Shamrock Fayne Mitchell, who was convicted of manslaughter for the death of his 11-week-old son, Honour. The incident occurred when Mitchell shook Honour, leading to fatal injuries. The court had to determine an appropriate sentence that aligned with the purposes and principles of sentencing under the Sentencing Act 2002. The primary legal issue was to find a suitable starting point for the sentence, considering the gravity of the offence and personal factors such as the defendant's culpability and remorse.

The court assessed the starting point by comparing the case to previous judgments involving violence against children. It considered the extreme vulnerability of Honour, the breach of trust by a parent, and the devastating impact on the family. The court adopted a starting point of six years imprisonment, reflecting these factors. Personal factors such as Mitchell's lack of a criminal history and his apparent remorse were considered, but his concealment of the truth was deemed an aggravating factor. The court applied a 20% discount for Mitchell's guilty plea, resulting in an adjusted starting point of four years and nine months imprisonment. Additionally, a minimum period of imprisonment of two years and six months was imposed to ensure accountability, denouncement, and deterrence.

The final sentence was four years and nine months imprisonment, with a minimum of two years and six months before parole eligibility. The court also issued a 'Three Strikes Warning,' informing Mitchell of the severe consequences of future serious violent convictions.

Orders