R v Nagle

[2013] NZHC 2532

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-043-206 [2013] NZHC 2532

THE QUEEN

v

CHERIE DENESE NAGLE

Counsel:

C E Clarke and N Elliott for Crown

K Pascoe for Appellant

Sentencing:

25 September 2013

SENTENCING NOTES OF WILLIAMS J

[1]      For a family to lose a baby is an unimaginable tragedy.  For a mother to lose her baby in these circumstances must be doubly so.

[2]      Cherie Nagle, I must sentence you for your role in the death of your son Reef

Rippa Stone on 4 August last year, aged just 10 days.

[3]      You  were charged with his manslaughter and  you  pleaded  guilty to that charge.  Your partner Selwyn Stone was initially charged alongside you, but that charge was withdrawn.

[4]      Little Reef was born at home on the morning of Wednesday 25 July 2012. According to Dr Primhak, the consultant paediatrician, he was likely to have been around six weeks premature although you thought he was no more than nine days early.  He was born at home without medical assistance of any kind.  This was the way your family did things.   Your much older children Serene (24), Jade (19),

River (16), and Jasmine (11) were all born at home in this way too.

R v NAGLE [2013] NZHC 2532 [25 September 2013]

[5]      You were 47 years old when Reef was born – he was as they say, an autumn leaf – thoroughly unplanned, although Selwyn says they were all unplanned.

[6]      You gave birth standing up in the bathroom with Selwyn, your partner of

25 years as the midwife.  He tied off Reef ’s umbilical cord with dental floss after you got into a warm bath with this new baby. All seemed to go well.  Once both you and Reef had had the bath, Selwyn cut the cord and you all cleaned up.  You and your daughter Serene then weighed little Reef on the kitchen scales.  You put him in a bowl apparently.  He weighed in at princely 5½ pounds, at least according to the scales, although their accuracy may be questionable.

[7]      Reef did not feed particularly well.   You say he took a day to eventually figure out how to latch on but even then he fed intermittently and without any particular enthusiasm. Your son Jade had had the same problem, so you didn’t worry too much.  But over time you and your mother must have developed some concerns about keeping Reef’s fluids up because on the Friday before Reef died, your mother, Vera, suggested you try feeding him boiled water through an eyedropper.  This was a technique she said she used on you when you were newborn.  Apparently you were six weeks premature as well.  In any event, you bought the eyedropper on the Friday and then started to give Reef boiled water through it.

[8]      His skin was wrinkled and a little cracked (even (I think) from birth). So you rubbed oil into his hands – first an orange oil but when that produced further irritation, you used olive oil.

[9]      As I have said, you did not know Reef was probably six weeks premature and according to  the  consultant paediatrician who  treated him  on  his  arrival  at  the hospital on 4 August, he had Down’s syndrome – an abnormality more likely to manifest with babies of older mothers such as yourself.  Reef also had a heart valve abnormality often associated with Down’s syndrome.   He had a hole between the two ventricles of the heart that caused leakage from one side to the other.  This according to the paediatrician would cause breathlessness and poor feeding, at least as Reef got older, although the paediatrician’s view was that this defect did not

contribute significantly to Reef’s death.  In any event, together, his prematurity and the abnormality he carried, explain why Reef was feeding so poorly.

[10]     Apart from being a picky eater (as you described it), and having problems with his cracked skin, you did not think at any stage that he had any issue requiring medical attention at  all.    Nor  did Selwyn,  and  nor  did  your  mother Vera  who reminded you, as I have said, that you had been a premature baby and that you also had feeding issues.

[11]     It transpires, as we now all know, that all was not well with little Reef at all. He  was  slowly dehydrating due  to  his  poor  fluid  intake  and  he  contracted an infection – the paediatrician surmises within 48 hours of death.   Contraction of infection (I understand) is one of the significant risks for premature babies – that infection untreated and unchecked became, inevitably, meningitis. The paediatrician said that when Reef presented at hospital early in the evening of 4 August, he had the most severe case of hypernatraemic dehydration he had seen in 35 years of medical practice both here and in the UK.  This (reflected in high sodium concentrations in the bloodstream) would, he said, have built up over several days of poor feeding. The infection, once it arrived, then spread to the meninges of the brain.  So when Reef did arrive at the hospital, medical staff tried all they could to resuscitate him but the infection was too far advanced, and he was too weak. After treatment for a time, attempts at resuscitation were stopped.  Reef was extubated at 8.50pm and he passed away a short while later at 9pm.

[12]     Reef’s death was preventable.  A doctor, if attending at the birth, would have kept him in a hospital and in an incubator in light of his prematurity.  If Reef had seen a doctor, or perhaps even a nurse, within days of his birth, measures would have been put in place to ensure that he was properly hydrated, fed and (crucially) free of infection. The consultant paediatrician concluded in his statement of evidence:

If the parents had realised that Reef had been born prematurely or with low birth weight, I would have expected that any reasonable parent would be aware of the risks posed and would seek professional help.

[13]     By contrast, your description of Reef ’s 11 days with you (in your police statement) is consistent with the perspective of someone who had no idea of the risks

Reef faced.  You described a normal birth, a little early to be sure, low weight, but not significantly low by comparison to your other children, a fussy eater but no drama that you had not faced with your earlier four children and easily overcome. You described in detail the manner of your care of this wee man and the strategies you used to address his feeding including, as I have said, after discussion with Vera, going to buy an eyedropper and borrowing a breast pump. You said his motions and urine seemed fine in your experience as a mother.  You were feeding him with water and/or breast milk every one or two hours.  The narrative you gave in your statement to the police, is the narrative of an experienced and caring mother.  This narrative confirms a picture of slow degradation of this poor wee man – not sudden; the picture of no-one close to him really seeing how serious his situation was.

[14]     It seems that at about 4pm on Saturday 4 August Reef started to show signs of fever reflecting the infection that I have mentioned. You noticed that he was a bit hot, and you cooled him off with a flannel and put his feet into water.  This seemed to help.  You went on an errand for River and one of his friends and, as per normal, you took Reef with you in his baby seat.  On the way back you stopped off at the dairy in Oakura.  You fed Reef there again with a little water and maybe some milk, although you are not sure about the latter.  You drove on to River’s friend’s house and it was there that you noticed that Reef was suddenly cold and not breathing. You got River’s friend’s dad to drive you straight to the hospital while you did all you could to resuscitate Reef on the way.   Saturday’s events, you say, took you by complete surprise.

[15]     Crown counsel argues that yours is a case of gross negligence in that you failed to attend to obvious and important issues in relation to Reef’s wellbeing.  The Crown says you failed to recognise the ongoing risks in his poor feeding, and you failed also to recognise the warning signs that should have made a parent seek medical care at the earliest opportunity.  You therefore omitted, the Crown says, without lawful excuse, to perform your legal duty as a parent to provide Reef with the necessities of life and to protect him from injury.

[16]     The  Crown  says  in  your  sentencing  a  signal  needs  to  be  sent  to  the community that when a baby is not feeding properly like this, medical help needs to

be sought.   The failure to seek mainstream medical care in Reef ’s circumstances

must, the Crown says, be communicated to the community as unacceptable.

[17]     That said, the Crown responsibly, does not seek imprisonment, or indeed any other penalty.  The Crown acknowledges that the pain of your loss is already an unbearable punishment.   But the Crown says nonetheless that a life was lost and human life is sacrosanct, and a conviction must be entered to acknowledge that.

[18]     Your counsel argues that you should be discharged without a conviction. She says the circumstances of your offending were such that the law does not need to be appeased through you carrying the burden of a conviction for manslaughter for the rest of your life.

[19]     This issue is where I am going to focus my comments.

[20]     There are no cases directly on point.  Each case, it seems to me, of death as a result of failure of parental care will be intensely fact specific, and so it is with this one.

[21]    The law requires me to go through three assessment steps in reaching a conclusion on whether a conviction should be entered in this case:

(a) (b)	first, to assess the gravity of your offending in this particular case; second,  to  identify  the  direct  and  indirect  consequences  of  that
offending for you; and
(c)	third, to determine whether the consequences of conviction are out of all proportion to the offending.
[22]	Thi	s is a homicide sentencing.  So the offence is at the most serious end of

the scale.  But my focus is on the offending not just the offence.  I, of course must take into account the sanctity of human life reflected in the offence and the vulnerability of this child – in fact the extreme vulnerability of this child, but I do accept here that the change that occurred to him over his short life, the physical

physiological changes that occurred to him over his short life were gradual and genuinely unappreciated.

[23]     I am satisfied therefore that your mistakes as a mum, the mistakes that led to the loss of Reef were at the very lowest end of blameworthiness scale within that admittedly serious category of offending.  You are not a mother who does not care about her children. On the contrary, you are, and have always been, a loving mum.

[24]     Let me refer to the comments of your daughter Serene:

I know everyone says it, but I would give my mum the mother of a lifetime award.   She has been a mother-figure to so many people.  My family, my siblings, friends.   She helps out people.   She is really involved in the community and in the school and kids’ games.  She was always pushing us to do our best.  She is supportive and always there for us, never says no.  No matter what time of day it is, if we ask she will come.  Wherever we are, she does what she can to help us.

[25]     Your son Jade put it this way:

I couldn’t have asked for a better mother.   Everyone I know, all of my friends all say that mum is amazing and wish that they had a mum like that. She is an amazing person, and amazing with children.  Mum’s so good with kids it’s almost unexplainable.   She knows children, just naturally really good as a mother.   She is so loving and always thinks about what a child needs.

[26]     Your friend and the teacher of three of your children during their primary years at a country school, reflected on your competence as a mum:

From my recollection the children were always healthy.  They were not a family that suffered copious ailments and I was aware that Selwyn and Cherie were quite well read with regards to alternative medicines.  (As are many other people including myself).  In that regard their preference was to choose natural remedies or to attend with a naturopath before heading to the doctor.

[27]     Yes you were more a fan of staying away from mainstream medicine if you could, but it seems to me you were no blind fanatic for alternative medicines.  As Sandra Hickey points out, when your son Jade was unwell and you could not work out what the problem was,  you took him to a doctor who diagnosed him with diabetes.  He has been taking mainstream prescribed medicine for his condition ever since.

[28]     It seems to me you just had faith in the ability of the body to take more care of  itself  than  you  felt  we  give  it  credit  for,  and  you  didn’t  like  the  way New Zealanders default to doctors and drugs at the merest sign of trouble.  Lots of New Zealanders of course share that view.

[29]     But in this case, it was this attitude, combined with Reef ’s condition and prematurity (and perhaps the fact that you were a little out of practice as a 47 year old mum) that proved your undoing.  These factors led you to make some fatal mistakes in assessing how serious Reef ’s situation was.

[30]     The problem was not a lack of care or love, or parental attention.  It seems to me, it was a lack of understanding.

[31]    I consider that, when properly viewed, the gravity of this offending was therefore at the lowest end of the scale.

[32]     I turn now to the consequences of conviction.  It is true to say that the most significant consequence of your offending has nothing to do with this court process. The greatest consequence is of course the loss of little Reef and the terrible burden you must bear for your role in his death.

[33]     Selwyn’s reflection here is relevant:

Cherie can’t look at any young children now without crying now, she doesn’t want to go out in public and feels nervous looking after young people.

[34]     Your daughter Serene says:

Ever since mum has found out that she has been charged, she has said that she can handle this because what she has been through, losing a child is worse than anything.  This whole process is nothing.   She has had her sentence.

[35]    That said, it is not at all true to say that a conviction will therefore be meaningless for you or for your family.  It will not.  As Miller J said in the Illston case, a conviction for culpable homicide carries a heavy social stigma – and not just for you, but for your family too.  Any memory amongst members of the community

of the facts of this case that might go some way to explaining and mitigating that stigma will inevitably fade over time.  But as that Judge said, a conviction is forever. And it is stark.  It labels you as one who has killed.  And it labels your children and grandchildren after you as members of the family of such a person.   You have already had a taste of this community opprobrium. As Selwyn said:

I feel like people in the community don’t understand what is going on.  The other day I was in a store and I could tell that a lady wouldn’t talk to me because of what happened, that she thought less of my family.  I am always getting disapproving glances.

People just don’t understand and jump to conclusions.  We haven’t had our

side of the story heard and everyone thinks the worst of us.

[36]     And as Serene said:

It’s been really hard seeing how mum is avoiding going into town.   She knows what everyone has been saying about her and it feels like there is a spotlight on her.  She never used to care about what people think, now she always takes a step back and is hesitant.  She never used to be scared.

I know that she is nervous about applying for jobs because she is going to have to put that on it.  It is something that will follow her forever.

[37]     A conviction will undoubtedly have a very powerful impact on your life and the life of your family.

[38]     In my view, the impact of a conviction for manslaughter will indeed be out of all proportion to the gravity of your offending.   It will fail to carry the correct message – that you are a loving mum who made a terrible mistake.  And it will lead to you and your family being shunned, criticised and stigmatised.

[39]    On the other hand, a discharge without conviction also sends a powerful message.  It signals to the community watching these proceedings that in the eyes of the law, the facts surrounding your offending were not so terrible as to warrant a conviction being entered, even though the offence itself is very grave indeed.   It sends a message to those who might choose to stigmatise you and your family, that they should not judge you so harshly.  It sends a message to the community that this is a case in which the just response is understanding, mercy and forgiveness.

[40]     Your family and friends all seem to say that Reef’s death, though traumatic, has brought a tight family even closer together. You are so lucky to have one another at such a difficult time.  Even this dark cloud, Ms Nagle, has been lined with a little silver.

[41]     One more thing.  A life was lost here.  And that loss reminds us here in this very public way that as parents and members of families, we must be ever watchful for signs of stress and need in our babies as we raise them.  Let Reef ’s death not be wasted.   Let us use this opportunity to remind ourselves as a community that medicine and health care if accessed in time, can prevent tragedy.   As the paediatrician said, if in any doubt at all, see a doctor.

[42]     Cherie Nagle, I discharge you without conviction. You are free to go.

Williams J

Solicitors:

Crown Solicitor, New Plymouth

Govett Quilliam, New Plymouth