R v Ngati HC Auckland CRI-2006-092-001919

[2007] NZHC 1850

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2006-092-001919

THE QUEEN

v

MAINE ANNABELLA NGATI TEUSILA KI VAIOLA FA'ASISILA

Hearing:         15 June 2007

Appearances: Mr R Burns and Ms C M Ryan for Crown

Mr J Rowan QC and Ms J Wickliffe for Ms Ngati

Mr E Paul for Mr Fa'asisila

Sentence:       15 June 2007

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Auckland
Counsel:
Mr J Rowan QC,

Mr E Paul, Auckland

R V  NGATI AND ANOR HC AK CRI-2006-092-001919  15 June 2007

[1]      Ms Ngati and Mr Fa’asisila,  you appear  for  sentence  having  been  found guilty by a jury on charges of wilful ill-treatment of a child, manslaughter and failing to provide a child with the necessaries of life.     Those necessaries were medical treatment in circumstances where he was obviously injured.

[2]      You were both also charged with murder, but the jury obviously did not accept that you had the necessary criminal intent and acquitted you on that charge.

[3]      The maximum penalty on the charges of manslaughter and failing to provide the necessaries of life (which is also technically a charge of manslaughter) is one of life imprisonment.    The charge of wilfully ill-treating a child carries a maximum sentence of five years imprisonment.

Factual background

[4]      The charges against you follow the death of Ngatikoura Ngati, a 3-year-old boy who died in Starship Hospital in Auckland on the morning of 1st February 2006. Ngatikoura  was  your  son,  Ms  Ngati.      He  had  been  returned  to  your  care  in November 2005 after having been cared for for much of his earlier life by one of your relatives.    At the time that Ngatikoura was returned to your care, you were involved in a relationship with Mr Fa’asisila.

[5]      The Crown case against you both in relation to the charge of wilfully ill- treating Ngatikoura was that you regularly hit all of your children, including Ngatikoura, for disciplinary purposes.    You did so using objects such as wooden spoons, wooden forks, vacuum cleaner tubes, oar handles and other implements. The Crown contended at trial that these disciplinary incidents did not amount to reasonable corrective measures in relation to a child and that they amounted in total to wilful ill treatment of a child.   By their verdicts the jury must have accepted the Crown case on this charge.

[6]      The charges of manslaughter and failure to provide the necessaries of life were laid as a result of a series of events that occurred on the 30th and 31st January

2006.    You, Ms Ngati, accepted in your video interview with the police that you

administered a severe beating to Ngatikoura around lunchtime on 30th January 2006. You told the police that you struck Ngatikoura on numerous occasions during the incident  using a canoe or oar  handle.      You said  that  you did so  because  you discovered that Ngatikoura had defecated in the bathroom and had tried to dispose of his faeces by washing them down the plug hole in the sink and throwing them out the bathroom window.     This was not the first occasion on which he had soiled himself or urinated in places other than the toilet.

[7]      At the end of the beating on 30 January you cleaned Ngatikoura up and put him to bed.   Later in the evening, however, you discovered that he had urinated on the floor of his bedroom and you hit him again, this time with your hand.     The evidence suggests that Ngatikoura may not have been able to reach the toilet on that occasion because of the injuries that he had suffered as a result of the incident earlier in  the  day.      Then,  on  the  morning  of  31  January  2006,  you  discovered  that Ngatikoura had urinated on his mattress.   This led to a further incident in which you struck Ngatikoura several blows with your hand.   Some of these were directed to his arm, which by that  stage was clearly severely swollen as a result  of the earlier incident.

[8]      The Crown case against you, Mr Fa’asisila, was that at some stage on either

30 or 31 January 2006 you struck Ngatikoura on several occasions with a baseball bat.   The evidence that supported this allegation was that of Ms Ngati’s son, Angelo, who said that you had hit Ngatikoura “heaps of times” with the bat.

[9]      You denied ever using the bat to strike Ngatikoura, but his blood was found on several places on the bat.    The jury must have accepted Angelo’s evidence and concluded that you did use the bat to strike Ngatikoura on a number of occasions on either 30 or 31 January 2006.

[10]     The blows that you both inflicted on Ngatikoura caused extensive bruising and soft tissue injuries on the chest,  arms and  legs.     In particular,  Ngatikoura suffered very severe bruising to  his upper  left  arm.     By the  time that  he was observed at hospital the next day the muscle in the left arm had in fact begun to die. His injuries were observed by the ambulance officers who arrived at the address on

the evening of 31 January and also by the health professionals who attended Ngatikoura after his admission to hospital that evening.     The injuries were also shown in photographs that were produced at the trial and they were described in some detail by the pathologists who were called to give evidence on behalf of both the Crown and the defence.    It is clear from that evidence and the photograph that the beating that the two of you administered had very significant consequences for Ngatikoura’s health.

[11]     The Crown case was, in fact, that the bruising and soft tissue injuries set in motion a chain of events that caused Ngatikoura to gradually lose consciousness on the afternoon of 31 January and ultimately to die the next morning as a result of swelling to the brain.    Your defence at trial was that the swelling to the brain may have been caused solely by irritation to the surface of the brain caused by a pre- existing sub-dural haematoma.    It is clear that a haematoma was in existence on Ngatikoura’s brain for some five to ten days prior to the date of his death, and there was no suggestion by the Crown that either of you was responsible for causing that injury.   The jury, however, must have dismissed this as a reasonable possibility.   I take their verdicts to indicate that they were satisfied beyond reasonable doubt that the blows that you each inflicted were an operative and substantial cause of Ngatikoura’s death.

[12]     I record also that, although the Crown opened its case on the basis that each of you was a party to the acts of each other, it ultimately elected not to proceed on that basis.     The Crown closed its case solely on the basis that each of you had individually struck blows that were a substantial and operating cause of Ngatikoura’s death.

[13]     The charge of failing to provide Ngatikoura with the necessaries of life arose from the fact that you did not seek medical help for him until approximately 6 pm on the evening of 31 January 2006.   The Crown case was that you were both aware of the extent of Ngatikoura’s injuries well before that time, and certainly at a time at which his life could have been saved if medical help had been sought.   As a result, the Crown contended that your prolonged failure to obtain medical treatment for him caused Ngatikoura’s death and that  it  amounted to a serious departure from the

standard of care that is required of any reasonable person faced with the circumstances that you faced.   Again, by their verdicts, the jury must have accepted the Crown case in relation to this charge.

Concurrent or cumulative sentences?

[14]     The  first  issue  I  need  to  determine  is  whether  to  impose  cumulative  or concurrent sentences upon you in relation to each charge, because each had separate legal elements and each arose out of a different set of factual circumstances.   On this point I derive considerable significance from the provisions of s 84 of the Sentencing Act 2002.    It provides that cumulative sentences are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.     Concurrent sentences, on the other hand,  are  generally  appropriate  if  the  offences  are  of  a  similar  kind  or  are  a connected series of offences.

[15]     In your case I have concluded that all three charges arose out of a connected series of events and that they are therefore a connected series of charges.   I note that no counsel sought to persuade me otherwise.

[16]     I am therefore required to fix a starting point in relation to the lead, or most serious charge, which I take to be the charge of manslaughter.    That starting point must, however, reflect not only your criminality in relation to the charge of manslaughter but also your criminality in relation to the other two charges on which you were found guilty by the jury.   Thereafter I need to adjust that starting point to properly reflect aggravating and mitigating factors that are personal to you.

[17]     In  fixing  a  starting  point  I  need  first  to  take  into  account  the  relevant provisions of the Sentencing Act 2002.

Sentencing Act 2002

[18]     In your case I consider that the relevant purposes in terms of s 7(1) of the Act are first, the need to hold you accountable for the harm that you have done to both

your victim and the community by your offending.    Secondly, the sentences must promote in you a sense of responsibility for, and an acknowledgement of, that harm. Thirdly, it is necessary for the sentence to reflect the Court’s denunciation of the conduct in which you were engaged.   Finally, the sentence must act as a deterrent to both you and other persons who may be tempted to commit the same or similar offences in the future.

[19]     In the present case all of these purposes are important because, as I am sure you both know, the crimes of which you have been convicted are extremely serious. In addition, your offending will no doubt be inexplicable to many members of our community.   They will not understand how you, as mature adults, could take it upon yourselves  to  beat  a  defenceless  3-year-old  boy  to  death.      Neither  will  they understand how, having inflicted injuries that were obviously serious, you then failed to obtain medical treatment for the boy over a very prolonged period.   People in our community  need  to  know  that  if the  parents  or  caregivers  of  children  elect  to physically punish children in such a way that their very lives are threatened, then serious consequences will follow.

[20]     I am also required to take into account the interests of your victims.   In your case, of course, the most obvious victim was Ngatikoura himself.   He was robbed of his life before it had even properly begun and I am sure you have reflected on the manner in which he must have spent his last 24 or 36 hours.    That boy must have been in excruciating pain by the time that he finally lapsed into unconsciousness. So you have robbed your victim of his very life.

[21]     There are other victims too.   There are victims such as the people that cared for Ngatikoura.    Your relative who cared for him for the three years prior to his delivery back to you in November 2005.   I have read a letter from her today and she expresses in the strongest possible terms about what she feels about what you have done.   She wishes that she had never returned Ngatikoura to you.

[22]     Ngatikoura’s father has also written a letter, and although it is clear that he did not have a lot to do with Ngatikoura over recent years, he, too, feels an overarching sense of loss out of what you have done.

[23]     Finally there  are  the  victims  who  are  your  wider  family.      One  of  the advantages I have had in sentencing you is that I have had referred to me a large number of letters and notes from members of your wider family.    It is clear to me that they, too, are victims in this matter because they share a keen sense of guilt about what happened here.

[24]     One of the disturbing features of this trial was the fact that some people must have known and, indeed, some people did know, of the fact that Ngatikoura was suffering injuries at your hands.    Unfortunately, none of them took steps to stop what was going on.    They had their own reasons.    It was your business, none of theirs, but they are the ones now who feel guilty for what has happened.   They think that they should have stepped in and stopped you when they knew what was happening.    Really, if there is anything good to come out of this trial at all, out of Ngatikoura’s tragic death, it is that in other cases where people see the obvious signs of abuse they will take steps to stop it occurring.    Had that occurred in the present case, Ngatikoura may well still be alive and you would not be sitting where you are now.

[25]     Having said all that, the Sentencing Act also requires me to take into account other factors.   Firstly, I must impose a sentence that has the least restrictive outcome in the circumstances.   In your case, of course, that really means imposing a sentence of imprisonment that is as short as can be justified in the circumstances of your offending.

[26]     Secondly, I must provide as far as I can for your adjustment and reintegration into the community.

[27]     Finally, I must ensure that the sentence that is imposed upon you is broadly consistent with that imposed in other similar cases.     I use the word “broadly”, because as counsel have emphasised this morning, the circumstances of cases involving manslaughter, and particularly manslaughter of children, vary infinitely and it is impossible to say that two particular cases are ever exactly the same.

Starting point

[28]     In fixing the starting point I also need to have regard to factors that can be said to aggravate or make more serious your offending.    These have been stressed by the Crown and accepted by other counsel.     First, there is the fact that your offending involved actual violence and it also involved the use of weapons by both of you.

[29]     Next, I consider that there was an element of cruelty in which you went about this.    In particular, the use of a bat on a small boy, even less than moderate force always has the potential for serious injury.     Secondly, the beating in the early afternoon of 30 January can only be described as prolonged in nature and must have been a cruel experience for Ngatikoura.   Then, Ms Ngati, there is the fact that even after that beating you were prepared, on two further occasions, to strike him, albeit with your hand, and on at least one of those occasions you were prepared to strike him in the area of his arm that was obviously seriously injured.    Your prolonged failure also  to  seek help  for  Ngatikoura also  meant  that  he  continued  to  suffer needlessly for a very lengthy period.

[30]     Next, the Crown points out that you were both abusing a position of trust or authority in relation to Ngatikoura.    You were his parent and caregiver.    It was incumbent on you to protect him and keep him from harm.   Instead you did the very opposite and  inflicted blows upon  him  in  a  situation  where  he  was  completely helpless and vulnerable.   A 3-year-old can never protect himself against the kind of treatment that you dished out.

[31]     I do not accept that there was any premeditation in your offending.   It seems to me that these incidents arose purely in the context of what you considered to be appropriate disciplinary action to take against Ngatikoura.   I do not accept that your offending involved any significant degree of premeditation beyond the selection of the weapon or implement that you used.

[32]     Having  regard  to  these  factors  the  Crown  contends  that  your  overall offending should attract a starting point of between 10 and 13 years imprisonment.

Your counsel, Mr Fa’asisila, does not take great issue with that approach.   Mr Paul submits that a starting point of ten years imprisonment is appropriate on the charge of manslaughter.   He submits that the charge of failing to provide Ngatikoura with the necessaries of life is so inter-connected with the manslaughter charge that no proper distinction can be drawn between the two charges and that any sentences on those two charges should be concurrent.    He also acknowledges that some account needs to be taken of the charge relating to will ill treatment of Ngatikoura during the period prior to the incidents that led to his death.

[33]     Your counsel, Ms Ngati, takes a slightly different view.   Mr Rowan contends that a starting point of 7 to 9 years imprisonment on the lead charge of manslaughter is appropriate.

[34]     Obviously the only way that I can properly impose a sentence that can be said to be consistent with those in other cases is by comparing the circumstances of this case with other cases.    As counsel have reminded me, that is not an easy exercise because the circumstances of every case will be different.

[35]     Counsel have referred me to a number of other cases that they consider to be relevant in considering the issue of starting point.   As I indicated during the hearing, I do not accept the Crown’s written submission, although it was not pressed this morning, that the case of R v Witika [1993] 2 NZLR 424 is of particular assistance. It seems to me that that case involved very different circumstances, although it superficially had some similarities with the present case. It involved long-standing neglect and, indeed, total disregard for the overall rights of the child involved. I do not see that that is a feature of your offending. The impression I gained during the trial that your household was a relatively normal one in which the real issues only arose when issues of discipline arose. So I do not take this case as being a case involving long-standing neglect as was the case in Wikia.

[36]    Similarly, I consider that the other case referred to by the Crown R v Filimoehala, CA367/99 16 December 1999 also involved a very different  set of factual circumstances.     That involved the systemic abuse by a large number of

members of a family of a handicapped 24-year-old woman.     I consider that the circumstances of that case are so different that they provide me with little assistance.

[37]     Of the cases to  which I  have  been  referred,  I  have  derived  the  greatest assistance from a case called R v Leuta [2002] 1 NZLR 215 which was referred to by all counsel. The circumstances of that case, which was decided by a 5-member panel of our Court of Appeal, had significant similarities to those in the present case. The offender in Leuta had punished her 4 ½ year old son by striking him repeatedly with a fan belt, causing him injuries from which he later died.    Prior to dying the deceased showed signs of shock and vomiting, but no medical treatment was sought. At the time, the offender had the care of five children under 8 years of age.    Her husband and one of the children had been sick.    In addition, she was experiencing behavioural problems with the deceased child owing to his having been separated from her for a lengthy period.

[38]     The sentencing Judge in that case had adopted a starting point of seven to eight years imprisonment.    In imposing a final sentence of six years imprisonment he referred to a number of mitigating factors including absence of previous convictions, early guilty plea and absence of concern about reoffending.

[39]     The Solicitor-General appealed to the Court of Appeal against the sentence of six years imprisonment.    He argued that the Court should prescribe a guideline, or tariff, starting point  of ten years imprisonment  in respect of manslaughter  cases where deadly force was used against children.

[40]     The Court of Appeal declined to adopt the Solicitor-General’s suggestion.   It was satisfied (at [59]) that the best guideline for sentencing in such circumstances is to be found in earlier sentencing decisions in similar cases rather than by means of a guideline starting point.   The Court then went on to say, however, at [77]:

[77]       Some general observations in respect of which there can be no dispute must be kept in mind.  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  is  often  enough  publicised.     There  can  be  little  reduction  in criminality these days for a claim that the danger was not realised.

[78]        Next, it is a factor considerably aggravating the seriousness  of violence against children that a weapon is used.  There can be no blurring of the line between lawful and reasonable reprimand and control of children on the one hand and criminal beating on the other.  The courts must clearly and unambiguously support those who are working to stop violence in the home in all its manifestations.

[79]        There is  a  further  relevant  aspect  of violence against  children. Perpetrators, in order to avoid exposure of their insidious behaviour, do not ensure proper care and treatment for their victims.   That considerably aggravates their culpability.  Physical abuse of a lower order is made greatly worse by failure to alleviate pain or discomfort.   Failure to get competent help is not readily to be excused.

[80]       Of course child homicides often occur in complex relational and domestic situations.   They bear upon the offender frequently to evoke sympathy and mitigate the offending.  They are to be taken into account for sentencing.   But they should not cloud the essential fact that the violent, cruel and brutal treatment of a defenceless and vulnerable child, to whom there are duties  of  trust  and  responsibility,  constitutes  conduct  of  grave criminality and, where death ensues, the sentencing task is in respect of a very serious crime.

[41]     In Leuta the Court allowed the Solicitor-General’s appeal.     It said that a starting point of ten years imprisonment would be appropriate.   That sentence would ordinarily be reduced by two years to reflect mitigating factors but was reduced by three years given the fact that it was an appeal by the Solicitor-General.

[42]     I also derive some assistance from another case cited to me by Mr Paul on your behalf, Mr Fa’asisila, and that is R v Waterhouse (2004) 20 CRNZ 897.   In that case the offender was convicted of the manslaughter of a three year old boy who lived with him under a foster arrangement.    He had killed him by punching him several times in the stomach because the boy refused to tell him where he had got some food that was found in his lunchbox.   The offender did not call an ambulance notwithstanding the fact that the boy was vomiting and in considerable pain.   By the time help arrived it was too late to save the boy’s life.

[43]     The sentencing Judge had adopted a starting point of 12 years imprisonment, and reduced that by two years to reflect several mitigating factors.   These included an absence of previous convictions, remorse and an early offer to plead guilty to manslaughter.    A minimum term of imprisonment of six years imprisonment had

also been imposed.   On appeal, the Court of Appeal took the view that all members of the Court in Leuta had “subscribed to a 10 year starting point”, and the facts in Waterhouse were indistinguishable from those in Leuta.    Although the Court was not prepared to say that a starting point of 12 years was outside the available range, it considered (at [27]) that there was no justification for an increase as large as two years.     For that reason the Court held that the sentencing Judge had adopted a starting point that was too high, and that a starting point of not more than 10 years ought to have been adopted.

[44]     I consider that in some respects the offending in this case was more serious than that in Leuta and Waterhouse.     Although Ngatikoura’s death occurred as a result of a series of incidents on 30 and 31 January 2006, both of you had struck him in an unacceptable way on several earlier occasions.   The incidents that led directly to his death cannot therefore be said to be isolated in nature.   There is also the added dimension that each of you used weapons or implements.   That was not a factor in Waterhouse.     Finally, there is your failure to obtain help for him for a very considerable period of time notwithstanding the obvious nature of his injuries.   For these reasons I take the view that the overall criminality of the offending in this case warrants a starting point of not less than 10 years imprisonment.

[45]     In fixing the starting point I need, however, to consider the culpability of each of you individually.

[46]     I am unable to distinguish between you  in relation to your culpability in relation to the charge of wilfully ill-treating Ngatikoura.    You both appear to have used a variety of implements to strike him on several occasions for disciplinary purposes.   Although I accept that you, Ms Ngati, may have attempted to intervene to stop Mr Fa’asisila striking the boy on some occasions, you were prepared on at least one occasion to punch Ngatikoura on the face with sufficient force to cause bruising that was visible for some time afterwards.     On any view that type of conduct is completely unacceptable.     For this reason I view the culpability of you both in relation to this charge as being equal.

[47]     Your culpability in relation to the charge of manslaughter, Ms Ngati, flows from the prolonged beating that you administered to Ngatikoura on the early afternoon of 30 January.   This was aggravated by the further blows that you struck later that evening and the next morning.   Your culpability, Mr Fa’asisila, arises from the use of the bat on either 30 or 31 January 2006.     Although I accept that the medical evidence establishes that only moderate force may have been used, nevertheless, as I have already said, it would only take moderate force for a weapon of that type to produce relatively serious injury.    It may, in fact, have caused the injury in the arm that was undoubtedly a contributing factor to Ngatikoura’s death.

[48]     The jury’s verdicts mean that each of you struck several blows that created the bruising and soft tissue injuries that led to Ngatikoura’s death.   On one view of the evidence, Ms Ngati, your culpability is greater, because of the sustained nature of the beating that you administered and the fact that you were prepared to strike him again on two other occasions.   On the other hand, Mr Fa’asisila, you were prepared to use a baseball bat against a defenceless 3-year-old boy.   As I have said, that had the potential to cause very significant injuries.    When I view those matters overall, again,  I  am  not  prepared  to  distinguish  between  the  two  of  you  in  terms  of culpability on the charge of manslaughter.   I therefore propose to treat you equally in relation to that charge.

[49]     It is, however, necessary to distinguish between you in relation to the charge of failing to provide Ngatikoura with medical treatment.   As I have already said, the Crown case in relation to this charge was that each of you failed to get help for him at a time when you knew he was injured and at a point when his life could have been saved.   In your case, Ms Ngati, you must have known of the injuries to Ngatikoura on the evening of 30 January.   By that stage you had administered the beating, you knew he was hurt.   You, Mr Fa’asisila must have known of the injuries from at least the morning of 31 January 2006 because you told the police that when you showered him you saw the bruising to his arm.    You told the police also words to the effect that you knew that Ms Ngati had been angry with him and you assumed that she had given him a hiding.   In those circumstances there really can be little argument of the jury’s verdict that you breached your duty of care to Ngatikoura and that that was a

major departure from the standard required of any reasonable person in your circumstances.

[50]     It must have been obvious to you both at the very least by the early afternoon that Ngatikoura’s life was in danger.    By the time you returned, Ms Ngati, to the house he was slipping in and out of consciousness.    As I have said, you elected to continue with your futile efforts to revive him for several hours.   I am also satisfied that it was at your instigation, Ms Ngati, that the authorities were not called.    You were clearly concerned about what would happen to you once the authorities discovered the extent and nature of Ngatikoura’s injuries.

[51]     Mr Fa’asisila, your motivation, I am satisfied, in not calling an ambulance earlier, was that you deferred to the wishes of Ms Ngati.    To some extent that is understandable  because  she  was  Ngatikoura’s  mother  and  you  had  only  been involved in looking after him for a relatively short period.    It is therefore perhaps understandable that you were prepared to let her make the judgment calls about what should occur.     But that was a serious mistake, Mr Fa’asisila.     You had  been prepared to assume responsibility for regulating Ngatikoura’s life earlier and you failed to carry out your responsibility on this occasion.    I do accept, however, that ultimately it was you who went to get help first in your form of your uncle and then at your uncle’s insistence in calling the police.     I therefore propose to treat you somewhat differently so far as the criminality of that charge is concerned.

[52]     Taking all of those matters into account, I am satisfied that an appropriate starting point on the lead charge of manslaughter for you, Ms Ngati, is one of 11 years imprisonment.  The starting point for you, Mr Fa’asisila, is a sentence of 10 years imprisonment.

Aggravating factors

[53]     I do not consider that there are any aggravating factors personal to either of you that operate to increase the starting point that I have selected.     Neither of you has any relevant previous convictions and indeed, Ms Ngati, this is your very first

conviction.     There are no other matters in my view that  need to be taken into account to increase the starting point that I have adopted.

Mitigating factors

[54]     I begin by considering your situation, Ms Ngati.

[55]     You appear for sentence at the age of 32 years.   As I have said, you have no previous convictions and are obviously entitled to some credit for that.

[56]     You  have  eight  children,  some  of whom are  now  in  the  care  of  family members in Australia and New Zealand.    At the time of the present offending you had five children under your direct care, all of whom were under 8 years of age, or 8 years and under.   Three of those children were aged 3 and under.   I accept that this would have placed a considerable degree of strain upon you.

[57]     I also  accept that  Ngatikoura presented particular problems when he was returned to your care in November 2005.   He had obvious difficulties with language because the family with whom he had previously resided spoke another language. He also had difficulties with toilet training and this was clearly a matter of frustration for you over a reasonably lengthy period.    In the end, however, those matters only really provide an explanation.   They do not provide an excuse.

[58]     I accept also that over the days that led up to the incidents on 30 and 31

January you had been deprived of sleep.   Indeed, sleep deprivation appears to have been a feature of your life for some time prior to this.   You also had difficulties with people in the family who had been sick.    It is therefore clear that the incident that occurred on 30 January was influenced, to some degree at least, by your fatigue, your frustration and your anger at the continued problems that you were having with Ngatikoura’s toilet training.

[59]     In considering your personal circumstances I have been assisted greatly by the material that  has been provided to  me before sentencing  today.      The  pre- sentence  report  unfortunately  is  of  little  real  assistance  because  you  were  not

particularly cooperative with the Probation Officer during the interview that led to the preparation of the report.    I do not place any blame on you for that.     Your counsel today has indicated the reasons why that came to be.

[60]     What has come through, so far as I am concerned, from the material that has been provided to me, is that you are a person who has always put your family first. You, I accept, genuinely love and care for your children.   I accept that you want the best for them.   You are proud of what they have done and you want them to do well in the future.   Your greatest concern is that you will not be around for a considerable period of time to see their achievements.    At the end of the day, Ms Ngati, as you well know, you alone are the person that brought about this state of affairs.

[61]     I have also had the benefit of a report from a consultant psychiatrist.    This goes into some detail regarding your early life and I accept that you have had very real difficulties in life.   You have had difficulties with relationships.   Sadly it seems that things were returning to normal in November last year when you had formed your relationship with Mr Fa’asisila and when Ngatikoura was returned home to you. At that point your family was complete.

[62]     Your very long letter which you wrote prior to sentencing has given me a great deal of insight into why you did what you did.   I accept unreservedly that you do have enormous remorse for what you have done.    If you could turn the clock back you would.   The fact remains, however, that you simply had no appreciation at all when it came to matters of discipline.     Ultimately that has what has led to Ngatikoura’s death and to your tragic situation today.

[63]     I am also prepared to take into account the fact that prior to the trial you offered to plead guilty to a charge of manslaughter.   The letter from your lawyer to the Crown Prosecutor does not indicate that you would have been prepared to plead guilty to all charges but for present purposes I put that to one side.   I think that the importance of that offer is that it was an acknowledgement of the fact that you were at least partly responsible for Ngatikoura’s death.

[64]     I do not criticise the Crown in any way for proceeding to trial.    The Crown was entitled to present its case to the jury and a verdict of manslaughter was by no means a foregone conclusion.    Equally, I accept that you were entitled to pursue your defence.   The sub-dural haematoma, coupled with the evidence that was given by Dr Ferris, provided you with a defence that you were entitled to have determined by a jury so I do not hold it in any way against you that you ultimately proceeded to trial.   So I do propose to give you credit for the fact that you offered to plead guilty to the charge of manslaughter.

[65]     I am also prepared to take into account the fact that you now seek help.   You realise that you do have very real problems with anger management and relationship management and you have offered, during the course of your incarceration, to undertake such programmes as may be available to you to address these matters.

[66]     Finally, I take into account also the fact that from the very beginning you have accepted responsibility for what you did to Ngatikoura.     You accepted responsibility when the ambulance officers arrived.   You told them that you had hit him with a stick.   Your told the 111 operator that you had done something like that. When you were interviewed by the police you took full responsibility for what you had done.   You never sought to minimise it.   So I accept that you have never tried to shift the blame for your offending to anyone else.

[67]     All of those matters persuade me, Ms Ngati, that you are a person who is highly unlikely to reoffend in the future.   I would hope that this is your first and last time sitting in the dock of a Court being sentenced.

[68]     Given those matters I propose to reduce the starting point that I have adopted by two and a half years.

Mr Fa’asisila

[69]     Mr Fa’asisila, you appear for sentence at the age of 27 years.   As I have said, for present purposes you have no relevant previous convictions.

[70]     I  have  a  little  more  difficulty  in  assessing  your  personal  circumstances because  I  have  very  little  material  to  go  on.      You,  too,  were  reasonably uncooperative with the Probation Officer.    Your counsel tells me today that that is because you are naturally a quiet and reticent person and that you did not really want to go through these events again.    Nevertheless, the report reveals that you were raised in Tonga by your parents.   You came to New Zealand at the age of 16 years for eye surgery and have remained here since that time.   Before becoming involved with Ms Ngati you were married to another person and you appear to have adopted a child during this relationship.   You and Ms Ngati had two children who were born during the course of the relationship.   And to the extent that I heard evidence about the interaction with Jacob and Angelo it seems to me that you did have a relatively normal relationship with your children and all the others in the house.

[71]     There is also evidence that you are a good worker.   You have held down jobs and you have been described as a very good worker by those who know you.   Your aptitude for work is shown by the fact that for much of the period of this trial is concerned,  you were away from the house at nights carrying out  your job as a security officer.

[72]     You presented to the Probation Officer as an unsophisticated young man who chose not to say very much and what you did say was in simple terms.   From what Mr Paul has said today on your behalf it seems that the Probation Officer was fairly accurate in those comments.

[73]     I take the view that you, too, are a person who had no idea how to deal with children in a disciplinary sense.   You simply thought that it was acceptable to strike that  and  that  that  was  a  usual  way  with  dealing  with  situations  that  required discipline.     Sadly, Mr Fa’asisila, that  decision and that  approach to  matters of discipline mean that you will now face a lengthy sentence of imprisonment.

[74]     I accept, to the extent that I can, your counsel’s assurance that you are sorry for what has happened and that you have remorse.    The only real issues that I can take into account by way of mitigation for you, however, are your previous good record, your good work record and the fact that you say you are now remorseful.   I

therefore propose to reduce your sentence by one and a half years to reflect those matters.

Sentences

Ms Ngati

[75]     I now impose the following sentences upon you:

a)       On the charge of manslaughter you are sentenced to eight and a half years imprisonment.

b)       On the charge of failing to provide the necessaries of life you are sentenced to four years imprisonment, with that sentence to be served concurrently upon the sentence imposed in relation to the charge of manslaughter.

c)       On the charge of wilful ill treatment you are sentenced to 18 months imprisonment with that sentence to be served concurrently with the sentences imposed on both the other charges.

Mr Fa’asisila

[76]     Mr Fa’asisila, I now impose the following sentences upon you:

a)       On the charge of manslaughter you are sentenced to eight and a half years imprisonment.

b)       On the charge of failing to provide the necessaries of life you are sentenced to four years imprisonment.   That sentence is to be served concurrently with the sentence imposed on the manslaughter charge.

c)       On the charge of wilful ill treatment you are sentenced to 18 months imprisonment with that sentence to be served concurrently on both the other sentences that I have imposed.

Minimum term of imprisonment

[77]     Given the fact that I have sentenced you both to sentences of imprisonment of more than two years I have the ability under s 86(1) of the Sentencing Act 2002 to order that you serve a minimum period of imprisonment.    I may impose such a sentence if I am satisfied that the period that would otherwise be applicable under s 84(1) of the Parole Act 2002 is insufficient for all or any of the following purposes:

(a)     holding the offender accountable for the harm done to the victim and the community by the offending:

(b)     denouncing the conduct in which the offender was involved:

(c)     deterring the offender or other persons from committing the same or a similar offence:

(d)     protecting the community from the offender.

[78]     In  my  view  the  seriousness  of  your  offending  means  that  the  period prescribed under s 84(1) of the Parole Act 2002 will be insufficient for the first three of the purposes to which I have referred.   I do not consider that those purposes could be achieved unless you served a greater proportion of your sentence than would otherwise be the case.   I therefore direct under s 86(2) of the Sentencing Act 2002 that  you  each  serve  a  minimum  sentence  of  imprisonment  of  four  years  eight months.

[79]     Stand down.

Lang J