R v MS

[2017] NZHC 2066

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PENDING FURTHER ORDER OF THE COURT PURSUANT TO S 200

CRIMINAL PROCEDURE ACT 2011.

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT OR WITNESS UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2016-070-2233 [2017] NZHC 2066

THE QUEEN

v

MS

Hearing:	18 August 2017
Appearances:	A J Pollett and SJP Davison for Crown R J Stevens and K Hadaway for Defendant
Sentence:	18 August 2017

SENTENCING REMARKS OF PETERS J

Solicitors:           Hollister-Jones Lellman, Crown Solicitor, Tauranga

Public Defence Service, Tauranga

R v MS [2017] NZHC 2066 [18 August 2017]

[1]      MS, today I am sentencing you for the murder of Baby R.

[2]      You defended the charge on the basis that you were guilty of manslaughter, not murder.  The jury who heard the case rejected that explanation and found you guilty, in fairly short order it has to be said, of murder at the end of the trial on 3 July 2017. I gave you a first strike warning when you were convicted.

[3]      The lawyers and I agree that that the only sentence that can appropriately be passed on you today is a sentence of life imprisonment and I impose that sentence on you now.1

[4]      The real issue today is the minimum term of imprisonment that you should serve before the parole process can begin.   Counsel are agreed on several matters relating to that issue but there are some differences between them that I shall need to address.

[5]      I shall start by setting out the events that led to Baby R’s death. And before I do that I wish to assure Baby R’s family, in fact I want to assure everyone in the courtroom, and you, that the lawyers on each side as well as Corrections have done the work required of them to prepare for today.

[6]      Corrections have given me a report on you, MS; Crown and defence counsel have given me very good written submissions; and, of course, I have today had the benefit of hearing the victim impact statements from you Ms W – Baby R’s mother – and his grandmother and father.

[7]      I have to take all of this information into account to get to a result that does justice to the community, to Baby R, to his family and to you MS.  Baby R was a lovely little baby boy when he died and it is a tragedy for his family, and for you, that

he did.

1      Crimes Act 1961, s 172.

Facts

[8]      You came to New Zealand from India in November 2014 and, by October

2015, you were working on local orchards in the Bay of Plenty and had moved into to a house in Tauranga. That house was occupied by Ms P, her husband, Mr S, and their little children.  Ms W moved in six or seven months later, Baby R being about two months old at the time. Ms W was 20 or 21 I think at that point.

[9]      Ms W’s evidence was that you were very sweet to Baby R, kind, loving and affectionate, enjoyed playing with him and were generally very good to both of them. Indeed, you and Ms W were in the early stages of a relationship when these events occurred.

[10]     When you got home in the early evening of 7 June 2016, Ms W, Ms P and Mr S

wanted to go out and get something for dinner.

[11]     They asked you and the other adult living at the household at the time, Mr R, if you would look after the children while they were out, and you said you would. You were to look after Baby R and Mr R was going to look after Ms P’s children.

[12]     Baby R was a happy, healthy baby in his pushchair when they left the house at about 7 pm.

[13]     Shortly after they left, Baby R started to cry loudly and continuously and everyone agreed that he had a loud cry.

[14]     You tended to Baby R, got him a bottle, carried him around the house saying to him “stop crying”, “why are you crying” and generally tried to settle him down.

Mr R said you went into a bedroom, came out, and then went back in a second time. Baby R was still crying and you were still asking him why.

[15]     Mr R then described hearing a pause, an even louder short cry and then silence.

[16]     Ms W, Ms P and Mr S arrived home after this, at about 7.45 pm. Ms W yelled out that Baby R was not breathing, he was floppy, had vomit all over his face and had a bump to the left side of his head.

[17]     Ms P asked you what you had done. You said nothing, and you maintained that version of events, without hesitation, to the police later that night.

[18]     Ms W and Ms P had the good sense to rush Baby R to hospital immediately where needless to say the medical staff did their absolute best to save him.  But to no avail.  Baby R was blue, not breathing, had no pulse and could not be resuscitated.

[19]     No-one but you knows precisely what happened in that bedroom, MS, but Baby

R’s injuries tell a powerful story.

[20]     Dr Vertes carried out a thorough examination and autopsy.  She found a large “boggy” swelling at the back of Baby R’s head that went from both temple regions round the back of his head.  The skin over this area was discoloured and Baby R’s head shape was not what it should have been – it was flat, not round. When Dr Vertes cut Baby R’s hair off she found a “weave pattern” of bruising, indicating that Baby R’s head had struck a carpeted floor.

[21]     Baby R also had lesions and bruises on his face and round his ears.  It takes significant force to bruise a baby’s face because  they do not have the “boney” structures that adults have.

[22]     Dr Vertes put the cause of death as blunt force cranio cerebral trauma which means Baby R died from injuries to the cranium and his brain inflicted by blunt force. And what that means is that his head came into contact with a hard, unforgiving surface.

[23]     Dr Vertes identified several significant depressed fractures to the skull.   In addition, some of the bones had fractured into bits all of which meant to her that this baby’s head hit that hard, unforgiving surface several times with considerable force.

[24]     In all, we heard from four doctors and all agreed that the force applied to Baby R’s head must have been considerable. The words they used to describe that force was “severe”, “significant” and “massive”.  Although none could say how many impacts there might have been, and none could entirely rule out that it was just one, for myself I have no doubt it was several and in what must have been quick succession.

[25]     MS, I do not think you intended to kill Baby R.  But I am satisfied that you intended to injure him in a way that you knew might well cause death, and that is what you did.

Victim Impact Statements

[26]     As I said before, I have had the benefit today of hearing the victim impact statements.  Not only has Baby R been deprived of his life, but his parents and his family have been deprived of their child and all the things that go with that – seeing Baby R learn to walk and talk, going to school, making friends, getting a job, playing sport, having his own children, and generally taking part in all the good things that life has to offer.

[27]     You are responsible for having taken that from Baby R and his family.  And Ms W makes the very powerful point that however things end up for you today, she has a life sentence.

PAC report

[28]     I turn now to the Corrections report, MS, and I must say it startled me because it indicates to me that you have no conception of the magnitude of your offending and the utmost seriousness with which it is viewed. You seem to expect to be able to return to India in a fairly quick time frame but that is simply not possible.

Minimum period of imprisonment

[29]     MS, I have already sentenced you to life imprisonment. That is your sentence, but that is not the end of the matter because I now have to determine the minimum length of time you must serve in prison before you can be considered for parole.

[30]     That minimum period of imprisonment is not the finite sentence that you will serve.   It is merely the period of time during which you cannot instigate the process by which you might eventually be released on parole.   It is a matter entirely for the Parole Board as to when, if ever, you are released.

[31]     Counsel and I agree that this case is such that I am required to impose a minimum period of imprisonment of not less than 17  years unless it would be manifestly unjust to do so. That is for these reasons.

[32]     First and foremost, Baby R was particularly vulnerable because of his age. He was no more than four months old.  He was entirely at your mercy, MS.  We make special provision for vulnerable people being the very old, the very young, and the infirm because their power to resist or extricate themselves from a situation is either non-existent, as in this case, or much diminished.

[33]     The Crown also says that your offending involved a high level of brutality. On balance, I am persuaded that the degree of violence you must have used places it into this category – just.  I say that bearing in mind Dr Metcalfe’s evidence that the only way these injuries could have been sustained in one impact was if this child had fallen from a five storey building.

[34]     Even if I am wrong on this, and it does not cross the line into the necessary high level of brutality, at the very least the violence and force used was extreme. Also, you had been entrusted with Baby R’s care and that was something you had been willing to take on. That, coupled with the fact that Baby R was entirely at your mercy given his young age, leads me to the conclusion that a 17 year minimum term would not be manifestly unjust at least having regard to the nature of the offending.

[35]     There are, however, two other factors relating to you personally that do render that 17 year minimum period manifestly unjust.

[36]     The most important of these is your young age at the time of the offending –

19.  Nineteen year olds are not adults.2   They are impulsive and irrational and do not

2      Sentencing Act, s 9(2)(a); and R v Churchward [2011] NZCA 531, (2011) 25 CRNZ 446 at [76].

always have the self control that we expect of more mature people. Also, a very long sentence can be crushing for young people who are still in their formative years. The Crown suggests an 18 month reduction and Mr Stevens suggests three years.  Having had regard to the cases to which I have been referred, I am satisfied that I should reduce the minimum term by two years.  I am referring here particularly to R v Ellery.3   Mr Ellery murdered a six month old child having reacted violently to her crying.  He was

21 at the time, so older than you, and the Court allowed him a two year reduction on account of that youth, and also his psychological problems and matters relating to his background.  I shall give you that same two year reduction even though, as I say, Mr Ellery was beset by difficulties that I have no reason to think are a factor for you.

[37]     Mr Stevens also referred me to two other cases, one that we refer to as Churchward and another one as Nattrass-Bergquist.4   I consider the circumstances of those defendants vastly different from yours. In both cases the offenders were 17 years old.  In Churchward, the defendant had severe mental health issues and in Nattrass- Bergquist there were again various difficulties that simply do not apply to you.

[38]     Accordingly, I am going to reduce the minimum period of imprisonment by two years on account of your youth.

[39]     There is another factor I must take into account and that is the fact that you are a very long way from home.  You will be required to serve a lengthy minimum term away from your family in India.  You will not have the support of family and friends that other prisoners can rely on and look forward to.  I am satisfied that will impose considerable hardship on you MS.

[40]     The Crown  acknowledges that a modest discount for this factor may be appropriate and has referred me to two cases.5   Having had regard to those decisions, I think the discount I can give you for this factor is only modest.  Although your lawyer, Mr Stevens, has asked for a discount on this point he has not been able to refer

me to any other authorities that suggest a more generous approach should be taken.

3      R v Ellery [2013] NZHC 2609.

4      R v Churchward, above n 2; and R v Nattrass-Bergquist [2016] NZHC 1089.

5      Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369. See also Mika v R [2013] NZCA 648.

[41]     Given that, I am going to reduce the minimum term by another six months.6

That reduces the minimum period of imprisonment to 14 years, six months.

[42]     I do not consider it appropriate or necessary to make any reduction for any other reason suggested by Mr Stevens, namely good character or steps that you took to shorten the proceedings by acknowledging manslaughter.   There was never a moment’s doubt about who had caused Baby R’s death and acknowledging manslaughter meant that certain benefits flowed to you.   I am not persuaded that acknowledgement by you had any significant effect on the length of the trial but it did mean that particular Crown witnesses confined their evidence to the events of 7 June

2016, rather than addressing other matters.  So, as I say there was never a moment’s doubt about who had caused Baby R’s death.  The only issue was what you were thinking when you did it.

[43]    As regards good character, you are far too young to be able to call an unblemished record in aid.  That is why I have reduced the minimum term – because you are so young.

[44]     Accordingly, I adopt a minimum period of imprisonment of 14 years, six months.

[45]     There is one other matter I should mention which is that Mr Stevens has also asked for a reduction on the basis that you can expect a tough time in prison from other inmates, given the nature of the offending. Again, however, he has not referred me to any authorities suggesting that it would be possible for me to take this matter into account. With respect to him, I do not even know if it is correct that you can expect a tough time on that account. Regardless, it is not something I can take into account. It is for Corrections to make sure you are kept safe and it is my expectation that is what

they will do.

6      Sentencing Act, s 8(h); R v Mahomed HC Auckland CRI-2008-092-748, 15 December 2009; R v Al Amery HC Auckland CRI-2009-004-3788, 18 March 2009; and O’Connor v R [2016] NZCA 414.

Sentence

[46]     Please stand.

[47]     On the charge of murder, I sentence you to life imprisonment, and fix a minimum period of imprisonment of 14 years, six months.

[48]     Stand down.

Peters J