R v Ngahere

[2020] NZHC 2133

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2019-029-256

[2020] NZHC 2133

THE QUEEN

v

JAHCEY NGAHERE

Hearing:

21 August 2020

Appearances:

B O’Connor for the Crown

A B Fairley and M R Ridgley for Mr Ngahere

Judgment:

21 August 2020

SENTENCING NOTES OF POWELL J

[Redacted version]

R v NGAHERE [2020] NZHC 2133 [21 August 2020]

[1]    Jahcey Ngahere, you appear for sentence today after pleading guilty to one charge of manslaughter, one charge of assaulting a child, and one charge of threatening to kill.

The offending

[2]    The offending occurred in early 2019. At that time you were living with your partner Kirishia, her one-year-old son, your stepson, and your and Kirishia’s daughter Maree, born as we have heard, on 23 January 2019. From the available evidence I have before me it appears that you were happy if a bit isolated, and not at that time suffering any significant problems with your mental health.

[3]    The first of the offences for which you are sentenced today was the assault on a child. This occurred when, in January 2019, you were at home with [your stepson], who was described as wanting to be entertained or played with. You became annoyed with him, grabbed him by his arm, lifted him up off the ground to about your waist line, and then forcefully dumped him to the ground. You then told him, “now you fucken sit there”. The force you used on [your stepson] was enough to make him start crying, but fortunately he did not suffer any physical injury from this incident.

[4]    On the evening of 18/19 February 2019, you were home alone with [your stepson] and Maree, who by then was four weeks old. At some point something happened, and there is no doubt that you seriously injured Maree, resulting in her death. Just after 7 am that morning you called emergency services to report that Maree was no longer breathing. You said that you had found her lying unresponsive, on her back in the cot. You were advised to commence CPR. Your attempts to revive Maree and subsequent attempts by emergency staff were unsuccessful, and Maree was pronounced dead at the scene.

[5]    Initially Maree’s death was not seen as suspicious. However, bruising on her body prompted a post mortem examination which revealed a range of serious injuries including further bruising to Maree scalp and a large brain bleed. Those injuries that were recorded were clearly the result of trauma that could not have happened accidentally, and were the cause of Maree’s death.

[6]    When first interviewed by Police you initially suggested that when Maree would not settle and go to sleep, you threw a heavy pillow at her while she was in her pram: this caused the pram to move and a vase to fall into the pram, although you did not suggest you found a vase in the pram. You have since stated that you were trying to feed Maree but that she would not take the bottle and started screaming. You say you picked Maree up and shook her vigorously for maybe five to six seconds. Expert opinion suggests that shaking alone does not explain all the injuries Maree suffered, particularly the external bruising to her limbs and head, however, you have taken responsibility for all of Maree’s injuries including the brain injuries that resulted in her death, and have pleaded guilty to her manslaughter.

[7]    As evidenced by the victim impact statement that you heard read out this morning, there is no doubt that Maree’s death has been devastating for Kirishia and the wider whanau, both hers and, indeed, yours. It is also clear from the material that I have before me that you yourself appear to have suffered significant grief since that night.

[8]    The third offence for which you are being sentenced today occurred about a month after Maree’s death and just before the murder charge was laid. On 11 March 2019 you were walking through Kaitaia accompanied by a woman. The occupants of a nearby address heard you yelling at one another and walked up to their fence to observe what was going on. When they confronted you after you reportedly thumped one of their cars with your hand, you told them, “I’m going to kill you”. You said you had killed your own child and would also kill the children at that address. You charged at the fence line but did not enter the property. You were subsequently arrested and have pleaded guilty to threatening to kill. As you will have seen from the victim impact statements that have been filed on behalf of that family, your actions on that day have also had serious consequences for that family, particularly for their young son who has suffered a recurrence of PTSD following your actions, which were totally unjustified in the circumstances.

Approach to sentencing

[9]    I will now explain the task I have today and how I am approaching it. The Sentencing Act 2002 sets out the purposes and principles of sentencing. The primary purposes of sentencing in this case are to denounce your offending,1 and to hold you accountable for the harm done, and in particular for the loss of Maree’s life, and the sentence is intended to promote in you a sense of responsibility for, and acknowledgement of that harm.2

[10]   Other principles of sentencing that are relevant today are the need to achieve consistency with appropriate levels of sentencing in other cases,3 and to impose the least restrictive outcome in the circumstances.4

[11]   Determining an appropriate sentence for you involves two steps.5 First, as you have heard counsel discuss, I must determine what is referred to as the “starting point”. The starting point is a term of imprisonment that reflects the seriousness of the offending to which you have pleaded guilty. Once I have calculated the starting point I must then take into account the personal circumstances relevant to you, including any deduction that you are entitled to for your guilty pleas. This will result in an end sentence. When I arrive at this point I will then consider whether it is necessary to impose a minimum period of imprisonment beyond the default period prescribed in the Parole Act, before you will become eligible for parole.

Starting point

[12]   In calculating the starting point I begin from the position that each of the charges upon which you appear for sentence today carries its own penalty, ranging from two years’ imprisonment to life imprisonment.

[13]   The lead charge, that is the most serious, is manslaughter. There is not what we call a tariff case or guideline decision for manslaughter because the circumstances

1      Sentencing Act 2002, s 7(1)(e).

2      Sections 7(1)(a) and (b).

3      Section 8(e).

4      Section 8(g).

5      Moses v R [2020] NZCA 296.

in which manslaughter can occur vary so much.6 Instead, the Court of Appeal has indicated that the best guidance in setting a starting point for offending involving manslaughter is to be found in the starting point adopted in similar cases.7 In working out what are comparable cases I must also take into account a range of aggravating and mitigating factors relating to the offence, that is matters that make the offending more or less serious. These are set out in ss 9 and 9A of the Sentencing Act, with s 9A as you have heard from counsel, being particularly relevant as it provides a list of aggravating factors where offending has involved violence against a child under the age of 14 years. As Ms O’Connor noted for the Crown, the addition of these s 9A aggravating factors to the Sentencing Act was reflective of widespread public concern about violence against and neglect of children, and “signals tougher sentences may be required”.8

[14]   In this case your counsel, Mr Fairley, and Ms O’Connor agree that the breach of the relationship of trust between you and Maree and the defenceless nature of Maree are clearly aggravating factors in terms of s 9A. I agree. As I have noted, Maree was only four weeks old at the time of your offending and depended on you, her father, entirely as her caregiver. As Ms O’Connor noted, Maree could not have been more vulnerable and you failed as a parent in your primary task of looking after and protecting Maree and thereby breached the essence of your parent-child relationship. The size of your breach of Maree’s trust and indeed the trust of the other victims, including Kirishia, is beyond any dispute.

[15]   Ms O’Connor also submitted in her written submission that there are a number of other additional aggravating factors that I should take into account, including the long-term or serious effects of the offending on the victim and cruelty. I do not accept that submission however. Although, as Ms O’Connor submitted, the effects of the offending cannot get any more serious, this factor is inherent in the charge of manslaughter and not therefore a factor that can further aggravate the offending. Likewise, the concept of cruelty implies an intentional component, which again because of the nature of the charge of manslaughter seems misplaced in this context.

6      R v Edwards [2005] 2 NZLR 709.

7      R v Leuta [2002] 1 NZLR 215 (CA).

8 At [13].

[16]   Mr Fairley in his submissions identified the one-off nature of the incident as a mitigating factor, however, I prefer to view it as a neutral factor, particularly given the extensive injuries ultimately suffered by Maree and the fact that it is not known exactly what occurred in the hours before Maree was killed. I therefore do not find there to be any mitigating factors relating to the offending itself.

Comparable cases

[17]   With these factors in mind I turn to address the comparable cases that will help me set the starting point for your offending and you have heard counsel refer to a number of those in their oral submissions to me today.

[18]   The Court of Appeal in R v Pene reviewed a range of manslaughter cases involving the deaths of young children and identified that starting points of between five and seven years are typical for offending of this type.9 However, the Court noted that cases at the lower end of the range “are distinguishable on the basis that the offenders were suffering from varying degrees of mental impairment”, 10 and/or occurred before s 9A came into force.

[19]   Both Mr Fairley and Ms O’Connor have referred me to a wide range of cases. These include R v Frater,11 R v Pene,12 R v Paea,13 R v Mitchell,14 R v Hapuku,15 and R v Robinson.16 I won’t go through the details of those cases today, but the written

9      R v Pene [2010] NZCA 387 at [11].

10 R v Robinson [2011] NZCA 479.

11  R v Frater [2019] NZHC 3326. The offender had taken on the role of fathering the eight month old child. In a moment of frustration, he threw the child to the ground. It was a single incident of short duration. The throw caused head injuries and death. A starting point of six years and six months’ imprisonment was adopted.

12 R v Pene [2010] NZCA 387. The offender was the foster mother of the 13 month old child. During the night the child was crying. The offender hit him hard on the head three or four times, and shook him. On appeal the court adopted a starting point of five years’ imprisonment.

13 R v Paea [2016] NZHC 822. The offender was a young mother who shook her seven week old child after becoming angry at him. A starting point of three years’ and nine months imprisonment was adopted.

14 R v Mitchell [2017] NZHC 1391. The offender was woken by the crying of his 11 week old child. He picked up the child and walked around the room to try and calm him. It didn’t work. The offender shook the child. A starting point of six years’ imprisonment was adopted.

15 R v Hapuku [2012] NZHC 1314. The offender was playing video games and during this time he struck the five month old baby with such force that it severed the child’s liver by pushing it against the child’s spine. The offender did not seek help for the child, the mother did upon her return. A starting point of nine years’ imprisonment was adopted.

16 R v Robinson [2011] NZCA 479. The offender was he foster parent of the four month old child. The offender said the child had fallen but it was clear that non-accidental head injury was the cause

version of these sentencing notes will have footnoted comments explaining where they fit in to this analysis. Each of those cases involved a single incident of violence and resulted in starting points of between three years and nine months’ imprisonment, and nine years’ imprisonment. Ms O’Connor also referred me to R v Iorangi and R v Tahuri, where the offender had a history of assaulting or abusing the child,17 but I did not find these latter cases particularly helpful in the present circumstances. Despite the additional charge of assault relating to [your stepson], there is no suggestion in the material before me of any prolonged history of abuse on your part towards Maree.

[20]   With regard to these cases, Mr Fairley, submitted that your offending was less serious than that in the cases of Frater and Pene, and falls somewhere between Paea and Mitchell, warranting a starting point of five years’ imprisonment. As you have heard, Ms O’Connor, however, submits that this is a case more similar to Robinson and Tahuri, and submitted a starting point of seven and a half years’ imprisonment is appropriate.

[21]   Having considered these various cases carefully and noting that there are still many things we do not know about what occurred that night, I am of the view that your offending most closely resembles that in Mitchell and Robinson where starting points of six years and seven and a half years’ respectively were adopted. With that in mind I adopt a starting point for the manslaughter charge of six years and six months’ imprisonment.

Uplift

[22]   In setting an overall starting point I must also have regard to the additional offending, the charges of assault and threatening to kill. Mr Fairley has submitted that an uplift of three months to reflect both charges is appropriate. While Ms O’Connor

of the child’s death. A starting point of seven and a half years’ imprisonment was adopted.

17 See R v Iorangi CA 533/99, 30 March 2000, where the offender who had a history assaulted the child on two prior occasions, lost his temper wen the child started crying, hit the child, shook the child violently and then threw the child three meters across the room. The starting point adopted was in the vicinity of six to seven years’ imprisonment. See also R v Tahuri HC Wanganui, CRI- 2009-083-00677, 18 June 2010. The offender had a history of using violence against children in her care. On the day of the offending the she lost her temper with her three year old granddaughter and violently struck her to the head. A starting point of seven and a half years imprisonment was adopted.

agrees that an uplift is necessary she does not specify how much the uplift should be. Again, having considered the issue, I am of the view that an uplift of three months is appropriate noting that the threatening to kill incident appears self-evidently linked to the grief and despair you were feeling after Maree was killed as well as the pressure of the investigation at that time. The result is that the total starting point for all three offences is six years and nine months’ imprisonment.

Personal circumstances

[23]   I now turn to consider your personal mitigating factors. The primary material that I have to work with in identifying these factors is the s 27 cultural report prepared by Louise Henare, the Provision of Advice to the Courts (or PAC report), a specialist Maori cultural assessment provided by Tania Sproull, a psychiatric assessment undertaken by Dr Justin Barry-Walsh and various historical medical records that have been provided.   As you have heard, in reliance on these materials, your counsel,    Mr Fairley, submits you are entitled to deductions to reflect your genuine remorse, your youth (including the hardship that you will face in custody), and the fact that you have entered guilty pleas at an early stage.

Social deprivation/mental health/youth

[24]   As you have heard, Ms O’Connor disputes this assessment and considers that any adjustment for personal factors should be limited only to the guilty pleas. Having read the various reports that I have referred to, I consider the categories identified by Mr Fairley are somewhat more blurred than his submissions suggest. Having looked at the various reports, there can be no doubt that you have suffered significant socio- economic deprivation while you were growing up, particularly following the breakup of your parents relationship. This has led to not only a lack of educational opportunity, possibly aggravated by dyslexia, but more broadly alienation from much of your whanau, both Maori and pakeha, and your Maori heritage more generally.

[25]   Likewise, while Dr Barry Walsh did not consider you were suffering from a mental illness either at the time of Maree’s death or indeed subsequently when he undertook his assessment, he nonetheless acknowledged your history of mental health

issues including significant bouts of depression, and that you have on occasion made a number of attempts on your own life.

[26]   Taking into account that background, what comes through from your history detailed in those reports and what is of significance to the present offending seems to me to be the extent of your own vulnerability, a visible lack of coping mechanisms, and support structures, no doubt accentuated by your age, 22 at the time of the offending. As Ms Henare put it in her report the “degree of vulnerability seems to bear on [your] ability to make rational choice(s) particularly under stressful conditions”, and the PAC report seemingly echoes this with suggestions of a wide range of courses the writer of that report considered you should undertake while in prison.

[27]   I do not see these issues as necessarily relevant, as Mr Fairley submitted, to the hardship that you may suffer in custody but rather as supportive of the fact that, as communications between your whanau and Ms Henare seem to bear out, that you did find looking after both [your stepson] and Maree to be particularly stressful, given your lack of appropriate parenting skills or any real connection with the local community when Kirishia was not present. There is some indication that on the evening Maree was killed you did attempt to reach out to Kirishia for assistance, although ultimately you did not pursue that with tragic results. Having noted these various matters, there is however a limit to the extent these matters can be taken into account given we really do not know exactly what occurred when Maree was killed, but I am satisfied that the elements that I have discussed did play a causal role in the tragedy that has unfolded.

[28]   Taken together, I am satisfied that these matters which encompass variously social deprivation, mental health and youth elements give rise to a total discrete discount of 10 per cent.

Remorse

[29]   I turn now to remorse. A discount for remorse is available when the expressed remorse is genuine and goes further than that reflected by mere acceptance of your

responsibility through the guilty pleas that you have entered.18 While there is clear evidence of overwhelming grief on your part, which as I have noted perhaps played a role in the threatening to kill incident, grief by itself does not necessarily signify remorse for the purpose of sentencing you today. In this case I must take account of the fact that you did not initially take responsibility for your actions, while your explanations even now do not adequately explain what happened to Maree. Despite that I acknowledge that the PAC report says that you “accept [you are] culpable for the death of [Maree]” and that there are other indications in the material I have before me that such remorse is indeed genuine. Overall then, I accept Mr Fairley’s submission that there should be a discrete discount for remorse, and a deduction of five per cent I consider is appropriate.

Guilty pleas

[30]   I turn now to your guilty pleas. As you have heard there is a case called Hessell, and in that case the Court upheld a reduction of up to 25 per cent in the event that early guilty pleas were made.19 As you have heard, Mr Fairley now seeks a 20 per cent deduction with reference to the steps that ultimately led to the charge being reduced from murder to manslaughter. Ms O’Connor on the other hand, submits that any deduction should be between 15 and 20 per cent noting that your guilty pleas were not entered at the earliest possible opportunity. Having considered the submissions of counsel and noting the date upon which the charge was amended from murder to manslaughter and the guilty pleas then entered, I agree that while a maximum Hessell discount is not available, a deduction of 20 per cent is appropriate.

End sentence

[31]   This results in total deductions of 35 per cent, bringing the end sentence to four years and five months’ imprisonment.

18     Hessel v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

19     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607

Minimum period of imprisonment

[32]   The final part of this sentencing exercise is to determine whether a mandatory period of imprisonment (“MPI”) is necessary. If I do not impose an MPI, then pursuant to s 84(1) of the Parole Act 2002, you will be eligible for parole after serving one third of your sentence. This Court may impose an MPI beyond that prescribed in the Parole Act where it is satisfied that the sentence imposed is otherwise insufficient for the purposes of accountability, deterrence, denunciation or to otherwise protect the community.20

[33]   Ms O’Connor has submitted that an MPI of 50 per cent is necessary as you continue to pose a high risk of harm, as identified in the PAC report. She also submits that it is necessary in order to hold you accountable for the harm you have caused, to denounce your offending and to deter you and others from similar offending.

[34]   I am not satisfied that an MPI is necessary. You have a limited criminal history and no previous history of violence and I note that the PAC report in fact assesses you as being of a low risk of reoffending. In my view the need to denounce and deter is already met by the sentence I have set out. On top of that given your obvious grief at Maree’s death and your role in it, I am conscious that quite apart from the penalty I have imposed today you will have to deal with the loss of your daughter at your own hands, a significant burden in and of itself. Finally, to the extent that you do pose a risk to the community that is a matter that will in any event be taken into account by the Parole Board. As a result, I do not impose an MPI beyond the one third period identified in the Parole Act.

Sentence

[35]This brings me to the end of the sentencing exercise. Mr Ngahere, please stand.

[36]   On the charge of manslaughter you are sentenced to four years and five months’ imprisonment.

20     Sentencing Act 2002, s 86(2).

[37]   On the charge of assaulting a child you are sentenced to three months’ imprisonment.

[38]   On the charge of threatening to kill you are sentenced to six months’ imprisonment. The sentences are to be served concurrently.

[39]You may now stand down.

Powell J