R v Paea

[2016] NZHC 822

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2015-016-1112 [2016] NZHC 822

THE QUEEN

v

MYRA PAEA

Hearing:	28 April 2016
Appearances:	F E Cleary for Crown D D Rishworth for Defendant
Sentenced:	28 April 2016

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Napier (Elvidge & Partners) Rishworth Wall & Mathieson, Gisborne

R v PAEA [2016] NZHC 822 [28 April 2016]

[1]      Myra Paea you are for sentence in this Court having pleaded guilty to one count of manslaughter.  Before I impose sentence on you this morning I am obliged to give you a warning in terms of the three strikes legislation.  Given the conviction for manslaughter you are now subject to the three strikes law. You will also be given a written notice outlining the consequences.  That notice will also list serious violent offences.

[2]      If  you  are  convicted  of  any  serious  violent  offence  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.    If  you  are convicted of murder committed after this warning then you must be sentenced to life imprisonment.   That will be served without parole unless it would be manifestly unjust.   In that event the Judge must sentence you to a minimum term of imprisonment.  That is the warning I am obliged to give you. You can now be seated and I will tell you when you need to stand at the end of the sentence, thank you.

[3]      As the Judge indicated at the sentence indication hearing the circumstances that bring you before the Court this morning are truly tragic.   You were a young mother, 18 at the time, when you were left at home with your seven week old son, Milton in December 2014.  Your partner had gone out for the day.  Members of your family had been visiting for several hours, but ultimately you were left alone with Milton.   On three separate occasions when he was crying and unsettled, you responded by picking him up and rocking him to a point that you were shaking him. You acknowledged eventually in your Police interview that you were angry with him because he would not keep quiet and that at one point you yelled at him to be quiet. You have said that you became stressed out and frustrated because Milton would not stop crying.   You rocked him and shook him to stop him crying.   You could not control yourself.

[4]      Later that evening you noticed Milton was not swallowing.  He pushed the bottle out with his tongue when you tried to feed him, and your partner also experienced difficulty with feeding him when he tried to give Milton a bottle in the middle of the night.  At about 6 o’clock the next morning, your partner heard Milton

gurgling, and realised he was not breathing and attempted CPR.  You got assistance from a neighbour to take Milton to hospital but he died later that morning.

[5]      The post mortem carried out on Milton found subdural haemorrhaging, that is haemorrhaging inside the cranium, which indicated there had been bleeding in his brain at different times, and there was also facial bruising and haemorrhages within both the optic nerve shields and retina in his eyes.  The cause of death was a head injury consistent with substantial shaking.

[6]      Since being charged with Milton’s manslaughter, you have been assessed by two  psychiatrists  to  determine  whether  you  should  have  been  charged  with infanticide instead.

[7]      The psychiatric assessments reject the proposition that you should not be held fully responsible for Milton’s death on the ground your mind was sufficiently disturbed by the consequences of giving birth and having to care for him.  However both reports, in particular the report from Dr Barry-Walsh, recognise that you have a personality dysfunction or a disorder triggered at least in part by severe abuse that you had sustained yourself and other adverse experiences you have had in your past. You  also  have  a  significant  history  of  drug  and  alcohol  use,  although  in  your interview with the second psychiatrist you claimed not to be drinking when you were pregnant again.

[8]      The result is that those expert opinions support the conclusion that the charge should not be reduced but they do give insight into the difficulties that you have experienced and were experiencing at the time of Milton’s death.

[9]      In the pre-sentence report that has been prepared for this morning the report writer notes that you express sorrow and regret for Milton’s death and said you have accepted responsibility as you want the matter over.  The report writer does however note that you struggle to admit culpability, which is accepting blame for what had happened.   In conclusion the report writer noted that you expressed sorrow and regret properly but your inability to acknowledge culpability precluded you from expressing true remorse.   The report writer notes that you consider the term of

imprisonment that you will have to serve for Milton’s death will allow you to make some kind of amendments.   You are fortunate that you have the support of your family, particularly your mother who has taken you to the “urupa” where your son and father are buried where you were able to make an apology to them for the harm that you have caused.

[10]     The consequences of shaking and striking babies is well known and has been referred to often.   Regrettably it is a matter that this Court sees often before it in cases where children have been killed.

[11]     In your favour it appears that Milton’s death resulted from a one-off incident on the day when you just felt unable to cope with his crying.  There is no evidence or suggestion of any ongoing abuse of him.

[12]     Regrettably as I say in New Zealand such offending and the tragic outcome of it is all too common.   Young and defenceless infants or children are killed by young and inadequate parents who do not have sufficient skills or maturity to enable them to cope with the responsibilities and demands of parenthood, despite the resources that are available for support in such cases.

[13]     I  take  into  account  in  your  favour  the  matters  that  Ms  Epati  and  Mr Rishworth refer to.  You were only 18 years old at the time of this incident.  You are immature for your age.  You, as I have noted, suffered severe abuse and trauma as a child and suffer personal psychological dysfunction.   This was a one-off incident. You were a very young and ill-equipped new mother.  You entered a guilty plea and accepted responsibility through that guilty plea at an early stage.  You clearly show emotion for the consequences of your actions on that day.

[14]     Having regard to the authorities and to your guilty plea, which acknowledges your responsibility for Milton’s death, I take a starting point of three years, nine months’ imprisonment as appropriate.  The killing of a young child is a terrible act that requires a proper and serious response from the Court.  However, I also take into account the mitigating personal factors in your case that I have referred to and that counsel have made in their written submissions on your behalf.   That supports a

reduction for personal circumstances of approximately 30 per cent.   There is then your  guilty plea,  which  is  as  I have said,  a tangible acknowledgement  of  your responsibility for Milton’s death. A full credit for that is appropriate.

[15]     All of that leads to an end sentence of 24 months, which is a sentence which requires the Court to consider whether home detention might be appropriate.  In this case, while there are some cases of child manslaughter where home detention has been imposed, the issue is in the circumstances of this particular offending, whether the home detention sufficiently reflects society’s concern and denunciation of such conduct, and would act as a sufficient deterrence to you and others.

[16]     The Court of Appeal in the case of R v Gordon has observed that the taking of life of another makes a prison term appropriate generally.1   Counsels’ researches that were available to the Judge who dealt with this matter earlier and my researches have not disclosed any cases since Gordon where there has been a sentence for shaking causing death which has resulted in less than imprisonment.

[17]     In  the  context  of the killing of an  infant  child  I consider a sentence  of anything less than imprisonment would not appropriately address the purposes and principles  of  the  Sentencing Act.    For  those  reasons  home  detention  is  not  an appropriate sentence and the appropriate sentence is one of imprisonment.

[18]     Ms Paea would you please stand.   On the charge of manslaughter you are

sentenced to 24 months’ imprisonment.  Stand down.

Venning J

1      R v Gordon CA276/04, 16 December 2004.