R v S HC Auckland CRI-2007-044-3542

[2010] NZHC 1777

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-044-3542

THE QUEEN

v

S

Charge:          Manslaughter

Plea:               Guilty

Appearances: R S Reed for Crown

C B Cato for Prisoner

Sentenced:     8 October 2010

400 hours community work

SENTENCING NOTES OF BREWER J

SOLICITORS

Meredith Connell (Auckland) for Crown

Charles Cato (Auckland) for Prisoner

R V S HC AK CRI-2007-044-3542  8 October 2010

Introduction

[1]      S  , you have pleaded guilty to one count of manslaughter under the provisions of the Crimes Act 1961.   The maximum penalty for manslaughter is life imprisonment

Background

[2]      For 11 years until Saturday 4 November 2006 the deceased, Kathleen Claire Hesse aged 39, lived at an address in Bushlands Park Drive, Albany which is owned by Spectrum Care Trust which operated it as a residential care facility for people with physical and intellectual disabilities.

[3]      There were five occupants there.   Kathleen Hesse suffered from cerebral palsy so she could not feed, bathe herself or use the ablutions independently.  The Trust employed caregivers 24 hours a day, seven days a week.  You were one such caregiver.  You worked there fulltime for around three years.

[4]      On Saturday 4 November you were one of two support workers rostered on. The other was a part-time employee.  You were fully trained and one of the safety protocols that you knew existed was that residents were never to be left unattended in their baths.

[5]      At about 8 am you bathed Ms Hesse, that being part of your allocated duties. Ms Hesse was positioned in the bath face down, as was normal, with the water low so  it  covered  her  lower  but  not  her  upper  back.    After  a  short  while  you  left Ms Hesse unattended in the bath to answer the door.  A former employee had come to the door with a question about a payslip or a timesheet, something of an administrative nature.  However, I find that you were aware of the risk to Ms Hesse because after a short period you returned to the bathroom to check up on her.  She was fine so you left her again and went back to the former employee.

[6]      You were gone about five minutes.  When you returned Ms Hesse was on her back with her head  submerged  and flailing in  the water, to the extent that her

disability allowed, in panic.   You removed her from the bath and you attempted CPR.  You instructed other staff to contact emergency services.  Ms Hesse was taken to North Shore Hospital and placed on life support.  At about 8.50 am on Monday

6 November 2006 Ms Hesse was taken off life support and died.

[7]      You travelled to Tonga on 30 June 2007 before charges had been laid against you  by  the  police.    You  remained  in  Tonga  for  some  time  and  returned  to New Zealand on 1 January 2010 after which you were arrested.  I accept that you did not intend to escape charges in New Zealand when you left for Tonga.  Your travel was pre-arranged and was for the purpose of dealing with family circumstances - the illnesses of your husband's parents, as we have heard today.

Personal Circumstances

[8]      You  are  a  48  year  old  woman  of  Tongan  descent.     You  moved  to New Zealand in 1986 and lived with your sister in Onehunga.  You began work at KFC and then ACI Glassworks.  In 1991 you married and moved to Ponsonby and then to the North Shore.  You and your husband have four children aged 10 to 18. Your husband also has four adult children from a previous marriage.

[9]      In 2007, as I said, you went to Tonga on a trip arranged before charges were laid to meet family obligations.   When you returned to New Zealand your family first  lived  at  the  Mt  Cecilia  Emergency  Housing  Unit  until  you  found  a  three bedroom Housing New Zealand home in Mangere where you now live with your husband and four children.

[10]     Mr S  , your husband, is in poor health, having suffered a heart attack in

April this year and a stroke previously.  Your family receives a sickness benefit.

[11]     I accept everything that Mr Cato says on your behalf about your exemplary character.    Your  family  has  been  very involved  in  the  Catholic  Church.    You currently volunteer at the Mangere Citizens Advice Bureau.   You are involved in literacy programmes, the choir and working bees through the Tongan Church.  You told your probation officer about the importance to you of work in the community.

[12]     At  the  time  of  the  offending  you  were  permanently  rostered  on  to  the morning shift.   You described what happened as a disaster for your family too.   I accept everything that Mr Cato says on your behalf about your obvious grief and remorse.

[13]     You are in good health and there have been no impediments identified to you completing a community based sentence.

[14]     Regarding the offending, I accept that you take full responsibility and that you never had any intention of harming Ms Hesse who you viewed as a daughter. Your offence was one of neglect which under our law can constitute manslaughter if it results in a death, as happened in this case.

[15]     I  also  accept  that  your  conduct  after  finding  Ms Hesse  in  the  bath  was exemplary.  It was you who phoned Ms Hesse's mother and told her what happened and you stayed with Ms Hesse until she died.  You attended her funeral and I accept that you wanted to make amends.   I note that you conveyed your apologies to the family there and that your husband spoke.   You offered the family tapa cloth and mats, as is custom, and also tendered an amount of cash.

[16]     There is no question that you pose any risk of doing anything similar again. You do not have any problems with drugs or alcohol and so rehabilitation is not something that I need to consider.  You have no prior convictions.

[17]     You have references and letters of support that attest to your good character and community involvement.  I have read the reference supplied by your husband, for example, your sister, your Church, and the Citizens Advice Bureau in Mangere where you volunteer.  And there is a petition of over 200 signatures showing support for you.  In general, the references describe you as a generous, loving, affectionate and helpful woman and seek compassion in sentencing.   They also describe the impact this process is having on your family, who are very reliant on you.

[18]     I had also read the victim impact statement from Ms Hesse's mother, which has now been read out in Court today.   The impact on her and on her extended family  is  obvious.    She  paid  a  significant  amount  for  her  daughter's  funeral, including airfares for the family, the cost of the headstone, and the cost of the funeral.  She could not afford to do that.  She had to refinance the mortgage on her family home which caused significant hardship.  Her daughter and son-in-law had to help pay the mortgage.   It was only this year that Spectrum Care reimbursed the funeral costs.

[19]     Mrs Hesse was not prepared for her daughter to pass away.  Her doctor was concerned for her mental health.   She was referred to Mental Health Services for anxiety and depression.  She had significant trouble sleeping, she could not eat and lost weight.   She was encouraged to take antidepressants but instead sought counselling and saw a psychologist.

[20]     One of the factors that Mrs Hesse has to wrestle with, as any mother in her circumstance would, is feelings of guilt at her daughter having to go into care and then dying as a result.  She had asked for her sister to help, but her sister could not, so she had to put her daughter into care.   She regrets that decision.   It broke her heart, but she had to look after her other children.   As you would imagine, that decision affects her every day, and will continue to affect her.

[21]     Obviously Mrs Hesse is angry that the bath was not removed.  She thought it was supposed to have been removed some years prior and that her daughter was only being showered.

[22]     Of course, Mrs Hesse was angry to see photos in church of you enjoying yourself.   She trusted you and feels that you breached that trust.   And, of course, your period of absence in Tonga has simply delayed her ability to begin to put this matter in the past.

[23]     Against that background I have to look at the purposes and principles of sentencing.

[24]     I have to say that there is a lot of misunderstanding in the community about what a Judge in my position has to do in a case like this.  A life has been lost.  It has been lost in this case due to criminal negligence, and that is the situation I have to address.  But the sentence that I impose is not intended to make up for the death.  It is not to calculate the value of Ms Hesse's life and then to take that value from your life.  The value of Ms Hesse's death was incalculable and the effects of her passing reflect that.  Instead, what I have to do in imposing a sentence is to react to the death in accordance with the law which binds me.

[25]     Turning  to  the  law,  s 7  of  the  Sentencing  Act  sets  out  the  purposes  of sentencing which I must take into account.   In  your case they are holding you accountable for the harm done, providing as best I can for the interests of Ms Hesse's family, and denouncing the conduct which led to Ms Hesse's death.   I accept that promoting responsibility or deterrence are not of high importance here as you have taken full responsibility and the circumstances were exceptional.   Likewise your rehabilitative needs are minimal.

[26]     I must also take account of the principles of sentencing.   In this case the gravity  of  the  offending,  the  impact  on  Ms Hesse's  family,  and  your  particular circumstances; and I am required to impose the least restrictive outcome possible.

Sentence

[27]     Both the Crown and your lawyer agree that this is not a case which requires a custodial sentence; in other words, both the Crown and your lawyer, looking at the law, say that a sentence of imprisonment is not appropriate in this case.   I quite independently have gone through the case law and I agree that that is what the law says in your case.  So I am not going to sentence you to a sentence of imprisonment.

[28]     What I have to consider is whether I should simply convict you of the offence and discharge you, as Mr Cato urges me to do, or whether, as the Crown submits, there should be some additional penalty which reflects the circumstances which the Crown has urged upon me.

[29]     In the end what leads me to the view that there does need to be an additional penalty is the fact that you were a professional caregiver, experienced and knowledgeable about Ms Hesse's condition.  She was very vulnerable and you were charged with keeping her safe.

[30]     I do not accept Mr Cato's submission that this is a situation of a momentary distraction.   An ex-employee came to the door while you were bathing Ms Hesse. You left to answer the door and you were aware of Ms Hesse's situation and you went back to check on her.  She was in the bath and she was fine.  Noting that, you left again and went back to deal with the ex-employee.  That was taking a risk, and it was a risk that you knew of.  But, of course, you did not think it was going to result in the situation that followed.

[31]     Taking all of that into account, I convict you of the offence of manslaughter and I sentence you to 400 hours community work.  Stand down.

Brewer J