R v O

[2012] NZHC 796

NOTE:ALL INFORMATION IDENTIFYING THE PRISONER OR HER CHILDREN IS SUPPRESSED FROM PUBLICATION

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2011-009-004380 [2012] NZHC 796

REGINA

v

O

Hearing:         17 April 2012

Counsel:         P A Currie for Crown

PHB Hall for Prisoner

Judgment:      17 April 2012

SENTENCING REMARKS OF WHATA J

[1]      Ms O you have pleaded guilty to two charges of attempted murder of your children.  This is punishable by a maximum sentence of 14 years imprisonment.  But for  the  reasons  I  will  give  below  I  am  not  going  to  impose  a  sentence  of imprisonment on you.

[2]      Before  I go further, all details of the sentence identifying  you  and  your children are suppressed. I will give my reasons for this at the end of my sentence.

R V O HC CHCH CRI 2011-009-004380 [17 April 2012]

Facts

[3]      I regret that I must retell the facts of your offending as I know this will add to the pain that you and your family have already endured.  In our society, however, we place great value on ensuring that, as far as possible, justice is open to the public and that offending of this kind is dealt with in a transparent and accountable way.

[4]      On the evening of 15 April 2011 and in the early hours of 16 April 2011, you took eight prescription tablets. You put your children, M aged seven and L aged five in the back of your car.   The car was parked in an internal access garage and the garage door was closed.   You put one end of the vacuum pipe on the vehicle’s exhaust, and placed towels around the pipe blocking off the exhaust with the effect that the exhaust fumes were channelled into the vacuum pipe.  The other end of the vacuum hose was placed through a small gap in rear window of the car.  A blanket was used to fill the remainder of the gap in the window.

[5]      The back seats were folded down and blankets placed across the back to form a bed.  M and L were placed in the back of the car and you then got in as well.

[6]      On the Crown’s account you then phoned a friend saying that you were going to kill yourself and your children.   On your account you say that you called your friend after you turned the car off.

[7]      In any event, you turned the car on and left it running producing carbon monoxide gas from the exhaust pipe, into the vacuum pipe and hose into the rear of the car.

[8]      Police later arrived at the house and found you in the lounge.  M was found crying in the hall, and L was found unresponsive in the back of the car.  Both were treated for exposure to carbon monoxide.

[9]      It is not clear how long you and your children were left in the car with the car running.  It appears that it was for a few moments only.

[10]     It is also relevant that you left a note stating: "This is no homicide this is filicide".   You also stated that your father had committed suicide and you did not want your children to live through what you had after his death.

Your background

[11]     I now want to touch briefly on your background as it is important to place your  actions  in  their  full  context.    I  will  not  however  go  over  in  detail  the information available to me.[1]    That would not serve any useful purpose.   I simply note the following by way of summary.  You have struggled with life at least from your early teens.   You have a history of self destructive behaviour, with drug and alcohol abuse, low mood, and several suicide attempts.  These attempts appear to be

[1] Refer Health Assessor's Report; Pre sentencing report

triggered  by intense emotion,  with  more recent  suicide attempts  precipitated  by stressors in your relationship with your former partner.  A medical report describes your behaviour as a “cry for help”, but with potentially highly dangerous and tragic consequences.

[12]     You have been clinically diagnosed with borderline personality disorder and potentially a major depressive disorder, expressed with mood swings, chronic aversive affect and intense but unstable relationships.   But according to medical reports it does not appear that you were suffering from a major depressive episode at the time of the offending. A recent assessment has observed that you have made considerable progress over recent months.  It also anticipates that you will continue to participate in a programme and that you acknowledge the need for this, although I record concern at a recent suicide attempt.   This calls for greater caution, but is explained in my view by the great stress leading up to this sentencing.

[13]     You have struggled, I think bravely, to bring up your children.   You have been described as a wonderful mother.   You have been supported by your family, who to their great credit have stood by you in your many times of trouble.  But they cannot be there all the time - and it would be immensely unfair to expect them to be there all the time.  But it is relevant to note that this suicidal episode coincided with a

period where you were managing alone and dealing with a separation from your former boyfriend.

[14]     You have also sought to better yourself after a long and troubled adolescence. You have a Bachelor of Commerce and  you were at the time of the offending studying a part time accountancy course.  You have no prior convictions.

[15]     I have also taken into account your letter to the Court.   It confirms your commitment to your rehabilitation and to your family.

Victim impact statements

[16]     I have also read the victim impact of your mother, and of course I have heard from her today, and the father of your children.  Your mother says that your children do not show anxiety about the car, but show considerable anxiety at being separated from her and from you.  She refers to the steps you have taken to assist them with them with coping.  The children’s father talks about what your children have been through, but like your mother says the children want to be with you and have shown signs of happiness since they have moved in with you and your mother.

Pre-sentence report

[17]      I  have  a  pre-sentence  report.    It  covers  the  background  I  have  already described.  It confirms your mental health problems, your anguish at what happened, your desire to be with your children - who are currently, as I have said, under the care of your mother by virtue of a Family Court order.  It also confirms that there is no  pattern  of  abuse  of  your  children.    The  report  observes  that  the  risk  of re-offending  is  assessed  as  low, but  expresses  concerns  about  the  stressors  that trigger your mental health issues.  The report suggests that with those stressors, the risk of re-offending is significant.  It does not, however, recommend imprisonment. Rather it recommends a combination of community detention, community work and

18   months’ intense   supervision,   with   associated   conditions.      Of   particular significance is a condition of adherence to a mental health plan recommended by a probation officer.

[18]      In sentencing you I must take into account the purposes and principles set out in the Sentencing Act 2002.  There is no standard formula, especially for the very difficult circumstances of your offending.   But I must endeavour to recognise the gravity of your actions, including the planning behind them.  I must also endeavour to hold you accountable for them, and deter similar offending, because of the great importance we place on the sanctity of life and indeed of young vulnerable children. I must also take into account your particular circumstances - while your actions were planned,  I am  satisfied you  were not  driven  by anger or malice,  but  by intense suicidal emotions that caused an utterly distorted and irrational view of what your children needed from you.  I must also acknowledge your remorse, which is entirely consistent with my view of your offending just expressed.   That is also relevant because I must consider your capacity to rehabilitate and to provide for the welfare of your children.

[19]      With those purposes and principles in mind I now turn to what the Crown and your lawyer have had to say.

Crown

[20]      The Crown does not consider that a full time custodial sentence is necessary. It does however, or it did in its written submissions, seek home detention or community detention to recognise the sanctity of life.  It does accept, however, that a maximum period of intensive supervision might be an appropriate alternative.  There

is said to be similarities to the case of R v M,[2]  where John Hansen J imposed a

sentence of intensive supervision and a community based sentence of 200 hours community work, with several conditions dealing with the mental health of the offender in that case.

[2] R v M  HC Dunedin CRI 2007-012-000211, 11 December 2007

[21]     Your counsel also seeks a non custodial sentence and says that a sentence of community work would not be appropriate because you have been in custody or on strict EM bail for a period of several months.   A number of mitigating factors are highlighted, including your mental health at the time of the offending and your extreme remorse.  He also refers to your ongoing commitment to your children and your active engagement with mental health services.

Assessment

[22]     You are guilty of attempted murder of your children.   You planned your actions  with  care.    You  attempted  to  end  their  lives.   This,  without  the  full context, would normally attract a severe starting point for penalty.  But you were not acting with malice or anger or gross neglect.   As I have said, you were driven by intense  and  overwhelming  suicidal  emotions.     You  plainly  lost  all  sense  of perspective and behaved in a most irrational way completely at odds with the usual love and care afforded by you to your children.   This must in my view put your culpability at the lower end of the spectrum.   Various authorities recognise that psychiatric illness falling short of insanity can nevertheless reduce moral culpability. Further, the purposes and principles of accountability and deterrence would not be furthered, in a proportionate way, by a sentence of imprisonment.  Indeed there must be little utility in seeking to punish you in a context where your fragile mental health was a primary cause of the offending.

[23]     Conversely, I see much in seeking to rehabilitate you by directly addressing, as far as I am able, the cause of the behaviour that brings you before me today.  This will better further the goals of accountability and deterrence than imprisonment.

[24]      That being so, it was correct for the Crown to not seek a full custodial sentence as a starting point.  As a guide therefore I will use the approach taken in R v M as an appropriate starting point for your offending and address the question of whether there are factors that make the sentence in R v M inappropriate.  There are features in M not present here.  In M, John Hansen J was satisfied that the offending

was precipitated by a major depressive event.   I cannot say the same.   But I am satisfied that you were suffering from such impairment that you should be treated in the same way.   None of the independent assessments or the Crown's evaluation suggests otherwise.  In M the sentencing Judge considered that 200 hours community work was warranted in addition to intensive supervision.   It is not clear why the Judge imposed that sentence.  It may be that he considered that the severity of the offending warranted a punitive element to reflect the need to denounce such conduct. Even so, I am not attracted to this because I consider that all of your energy must be devoted to your mental health issues and to your family who plainly need you.  I take much  from  the  steps  you  have  already  taken  toward  self  improvement  and  of creating a positive environment for you and your children.

[25]      Balanced against this, your mental health issues are long standing.  As the pre-sentence report observes, there remains a significant risk of harm to you and your children.  You are in need of long term and sustained intervention from experts best able to treat you.   Short of imprisonment I cannot stop you from harming your children.  But I am able to take into account the measures that the Family Court has put in place and the capacity it has to re-evaluate the danger to the children presented by you, if any.  I also recognise and indeed acknowledge the support you and your children have from your mother and wider family.   In combination, I am satisfied that my focus should be on imposing a sentence that best secures your rehabilitation and treatment of your mental health condition.  This also accords with the approach

taken by Fogarty J in a similar case,[3]  and  I respectfully borrow the sentiments

expressed in that case and apply them here, namely that we must do the best we can to keep the levels of stress on you down, and create conditions that will help you take care of your children.

[3] R v A HC Invercargill CRI 2009-025-329, 9 March 2010

[26]      Given this, I propose to impose a sentence of intensive supervision subject to the condition recommended in the presentence report.  I propose, however, to impose the maximum period of intensive supervision given your long history of mental health issues.  I understand that both counsel for the Crown and your counsel support this.  This aligns with the suggestion in the most recent assessment that you should

participate in a programme for the maximum two years.  The more assistance you

receive the better for you and your children.  This also in my view offsets any need for additional measures such as community detention or community work.

[27]     Ms O, please stand, you are convicted of two counts of attempted murder.  I sentence you to 24 months intensive supervision with the special condition that you must abide by a mental health treatment plan as recommended by specialist mental health services, as directed by and to the satisfaction of the probation officer.   I further direct, for completeness, that your EM bail be terminated.

First strike warning

[28]     Given your convictions for attempted murder (two) you are now subject to the three strikes law.   I am going to give you a warning of the consequences of another serious violence conviction.  You will also be given a written notice which contains a list of these ‘serious violent offences’.

[29]     If you are convicted of any one or more serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.

[30]     If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so.   In that event the Judge must sentence you to a minimum term of imprisonment.   I must stress to you Ms O that the risks to you are significant if you repeat this type of offending again.

Suppression

[31]     Suppression is not opposed by the Crown.  I am grateful for this.   I am also grateful  for  the  considered  submissions  of  Mr  Hall.  I  can  address  this  issue succinctly.  The interests of the children must be paramount in this context.  I can see only further harm coming to them if information identifying them or you was published.   Furthermore, your mental state Ms O can only be described still as fragile.  Your rehabilitation would be greatly set back if your details were published.

[32]     Accordingly  all  information  identifying  the  prisoner  or  her  children  are suppressed from all publication.

[33]     Ms O you may now stand down.

Solicitors:

Raymond Donnelly & Co, Christchurch, for Crown
PHB Hall, Christchurch, for Prisoner