R v Solomon
[2016] NZHC 1653
•19 July 2016
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESS/CONNECTED PERSONS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-092-008748 [2016] NZHC 1653
THE QUEEN
v
TROY LOUIS STUART SOLOMON
Hearing: 19 July 2016 Counsel:
A J F Perkins & L P Radich for Crown
P K Hamlin & J R Northwood for DefendantSentence:
19 July 2016
SENTENCE OF PAUL DAVISON J
Solicitors:
Kayes Fletcher Walker, Auckland
R v SOLOMON [2016] NZHC 1653 [19 July 2016]
Introduction
[1] Mr Solomon, you appear today for sentencing, having been found guilty for the murder of your five-month old daughter, Aaliyah Izabella Betty Solomon, at your home on 7 August 2014.
[2] Some members of Aaliyah’s family and also some of your family are present here in Court this morning, as they were during your trial. While no doubt some of them are here to support you personally, quite obviously, all of Aaliyah’s whanau are deeply affected by grief and the tragic death of this precious child and member of the family. I commence by extending the sympathy of the Court to Aaliyah’s family for her loss.
[3] Whenever a child dies and an infant life is lost, and particularly in circumstances such as this, not only does the immediate family grieve, but the whole community does too. Aaliyah was a member of our community. As members of society, we all have a responsibility for those among us who are especially vulnerable and who need special care and protection. All infants and children in the care and custody of adults should be entirely safe and secure. The tragedy here is that Aaliyah’s life was taken from her by the actions of and injuries caused by and inflicted by her own father – as her parent, the person she looked to for care and protection, and a person our community expected to discharge that responsibility. So in sentencing you today, the Court must hold you accountable for what you have done, for the life you have taken, and to send a clear and emphatic message that there is no tolerance whatsoever for violence towards children, and that the Court can be expected to reflect community expectations and standards, and impose a stern punishment upon anyone who offends in that manner. In your case, for the murder of your daughter.
The facts
[4] On the morning of Thursday 7 August 2014, Aaliyah and your step-son were in your individual sole care while your partner took your other daughter (then 22 months old) with her, and went to the supermarket to do some shopping.
[5] That morning, you had been using cannabis. It is not clear from the evidence just when in relation to the crucial events that caused Aaliyah’s death this occurred, but you later told the Police that you had “just got fucken high” and that you were “under the influence”, saying “I wasn’t straight”. You further explained to the Police that you were at the time smoking a 50 bag of cannabis every day, and referred to smoking 20 “cones” just by yourself –explaining that you would do so behind your partner’s back when she went out.
[6] Shortly before mid-day, you phoned 111 emergency services, saying that five month old Aaliyah was drowning in the bath - that she had fallen into her bath - was not breathing - had gone purple - and looked like she was unconscious. You said that she had got some water into her mouth and was burping it up, and had water coming out of her nose. You were given instructions by the 111 operator as to how to perform CPR on her.
[7] When the paramedics arrived at your home within minutes just after mid-day, they found you performing CPR upon Aaliyah on the floor in the lounge. The paramedics then took over. Despite their extended efforts at resuscitation, Aaliyah was pronounced dead at 2.21 pm that day.
[8] The following day, a post-mortem examination of Aaliyah was conducted which determined that Aaliyah’s death had been caused by blunt force trauma to her head and left leg. She had a bruise on the right front scalp with an underlying healing cephalhematoma, and an extensive acute subdural haemorrhage. There was also evidence of a chronic subdural haemorrhage on both the left and right sides of her brain; a spiral fracture of the left femur; multiple bruises to the anterior chest; and bruising to the left lateral soft tissue of her abdomen.
[9] There was no finding or evidence of any water present in Aaliyah’s lungs.
[10] While it is not possible to reconstruct the actual events, and what the actual mechanism was that was used to cause the injuries, and which resulted in Aaliyah’s almost immediate death, what is clear is that she suffered fatal and catastrophic head injuries, and a spiral fracture to her left femur, which could only have been caused by
the application of considerable violent and deliberate force. The expert evidence at your trial was that these two fatal injuries were inflicted on her either at the same time, or very close in time.
[11] The graphic x-rays of her fractured femur spoke for themselves as to how significant that fracture was, and consequently how severe the force used must have been. That force was said to have involved a twisting force.
[12] As I have said, there was also bruising found on her body. Although the bruises on her chest were likely to have been caused by the resuscitation attempts, there were also other bruises to her abdomen and on her arm that should not have been there. Most significantly, there was an impact site on Aaliyah’s right front forehead which was found to have bruising within and under the skin and which, almost certainly, was the impact site of the blunt force trauma that caused her head injuries.
[13] The evidence was that Aaliyah died very soon after receiving those injuries during a time when she was in your care and you were solely responsible for her welfare.
[14] One of the expert witnesses, Dr Garavan, who was called as a witness by the Crown, said Aaliyah’s injuries probably resulted from her being swung by her leg, and brought to an abrupt halt when her head connected with a flat surface. He said:
…its reasonable to suggest that the fractured femur and the head injury are connected through the same mechanism. Possibly if you took the child by the left limb and swung the child striking its head off a hard surface that would connect both. It may be two separate incidents done in rapid succession. You could twist and break the leg and then hit, give it a very hard head injury and kill it very quickly. Whether they are done in two transactions or on the same transaction I don’t know for sure. The only [person] who was present will know that.
[15] I repeat, it does not matter precisely how you inflicted or caused the fatal injuries. Whatever the mechanism, it is clearly established that that involved substantial and lethal force, and the verdict confirms that the jury found that you must have appreciated that treating a baby in that way carried with it the likelihood
of her dying, but despite knowing and appreciating that, you were nevertheless prepared to take that risk.
Your explanation
[16] The account you initially provided to the 111 operator, the paramedics and the Police was that you had found that Aaliyah had drowned in the bath tub after having left her briefly to attend to the needs of your son elsewhere in the house.
[17] Then, during your DVD interview with the Police on the night of 7–8 April
2014, you were asked to comment on the post-mortem findings which were inconsistent with your account, which until then, involved you insisting over a period of several hours that what had happened was that Aaliyah had accidentally drowned. However when confronted with information derived from the post- mortem of Aaliyah’s injuries, you changed your explanation and said that when you noticed Aaliyah’s head was under the water, you had grabbed her out of the bath and lifted her up to around your shoulder height but she had slipped from your grasp and fallen to land feet first on the floor and then had fallen away or off to one side, hitting her head; the injuries being accidental.
[18] Sometime later, after being released on bail in September 2014, you gave a further and quite different account to your partner saying that as Aaliyah fell from your grasp, you had reached down and grabbed her by her leg, but you were unable to stop her fall, and that she had still struck the floor.
[19] At trial, your defence case was that you had always accepted responsibility
for Aaliyah’s death but you said that it was the result of an accidental injury or a fall.
[20] Your explanation and version of events was rejected by the jury. The Crown’s case at trial was that you were solely responsible for inflicting the fatal injuries and that your explanation of her drowning and subsequently falling from your grasp after you had lifted her from the bath, was a false and constructed account, given in an attempt to avoid responsibility. The Crown said:
(a) there was no evidence of any drowning as found by the pathologist conducting the post mortem.;
(b)the water in the bath was only two inches deep at the deepest part, meaning the level of water was insufficient for Aaliyah to actually submerge.
(c) there was no water spillage on the table or on the floor beneath or around the bath that might have arisen from you lifting her in the way you described;
(d)Aaliyah was described as being dry and cold by the ambulance officers. This was considered to be surprising if she had just finished having a bath in warm water;
(e) the temperature of the water in the bath when felt by the ambulance and Police officers who attended, was hotter than they expected; and
(f) the water in the baby bath was clear and clean. There were no items found in the area that could be expected to be on hand if there had in fact been a bathing of Aaliyah underway at the time of the events that led to her death.
Pre-sentence report
[21] I note from the pre-sentence report that you continue to deny the offence, and maintain your own innocence.
[22] Mr Solomon, you are now almost 26 years old. You lived your early life in Hawkes Bay and were one of 11 children. You were raised by your father from age five after your parents’ separation. At age 19, you moved from Hawkes Bay to Auckland, to get “a new start”. You initially lived with a brother here before moving in with your partner, who had a son from a previous relationship and whom you treated as your step-son. Since then, you and your partner have had two children together – the youngest being Aaliyah. At the time of Aaliyah’s death, you and your
partner, who you have been with for about six years, were living together with the three children. She continues to support you today.
[23] The pre-sentence report notes that you have been assessed as posing a high risk of harm to others, and that you represent a moderate likelihood of reoffending. The risk factors are your use of illicit drugs; anger management issues; and your attitude to your offending.
[24] You told the probation officer that “[you are] sorry for everything, [you are] sorry to [your] family, [your] partner, [your] kids and that [you] don’t wish this situation upon anybody”.
[25] However the probation officer is of the view that these were empty assertions because you maintain your innocence and continue to view yourself as a victim of the criminal justice system, saying that you have been wrongly accused. You also seem to view yourself as a victim in relation to the offending as a whole, saying that at the time of Aaliyah’s death, you and your partner were going through a rough patch.1
[26] You also said that “[you] want to do anything to make [you] a better person” while you are in prison. Again, how far you go in that regard will depend on your own willingness to engage with rehabilitative measures in a meaningful way. As the probation officer reports, this will require you to have a degree of insight into, and take responsibility for, your offending and the risk factors that were at play.
Victim impact statements
[27] The Victims Rights Act 2002 requires the prosecutor to make reasonable efforts to ascertain any information from the victims of crime about the effects on, and views of, those victims about the offending upon them, as well as to inform the
offender of the impact of the offending upon them from the victim’s perspective.
1 You said that the heavy use of cannabis at the time of your offending was because you were troubled by your relationship issues, and using cannabis made you feel like “[you] had nothing to be angry about”.
[28] In this case, the Crown has advised that the members of Aaliyah’s immediate
family have chosen not to make any such statements.
Summary
[29] Mr Solomon, the law requires that a person convicted of murder must be sentenced to life imprisonment unless the circumstances of the offender or the offending are such that a sentence of imprisonment for life would be manifestly unjust.2 That presumption is a long-standing and strong one, reflecting the sanctity accorded to human life in our society and its associated abhorrence of the crime of murder.3
[30] Realistically, your counsel does not suggest that a sentence of life imprisonment would be manifestly unjust in this case. That is the sentence that I am obliged to impose upon you.
[31] A sentence of life imprisonment means you must remain in prison throughout your life, unless and until the Parole Board releases you into the community on parole. If you are granted parole, you may only remain in the community so long as you comply with your parole conditions and do not re-offend. You remain liable to be recalled to prison to complete your sentence.
[32] I am also required to set and impose a minimum period of imprisonment,4 which is the minimum term you must serve before you become eligible to apply for parole.
[33] Ordinarily, the minimum term of imprisonment for murder must be not less than 10 years but if the Court is satisfied that the specified circumstances of the murder are exceptional by reference to what Parliament has classified as the most serious kinds of murder, then I must impose a minimum non-parole period of 17
years or more unless it would be manifestly unjust to do so.5 The specified
2 Sentencing Act 2002, s 102.
3 R v Williams [2005] 2 NZLR 506 (CA) at [52].
4 Sentencing Act, s 103.
5 Sentencing Act, s 104.
circumstances which make a murder exceptional are set out in s 104 of the Sentencing Act. You will hear me speak of that provision later in my sentencing remarks.
Submissions
[34] The Crown says that, in your case, the aggravating features of your offending are the breach of trust from your position of responsibility as Aaliyah’s parent, and the level of violence involved in the offending.
[35] Mr Perkins submits that Aaliyah was particularly vulnerable because of her age. This, says Mr Perkins, brings your case clearly within the realm of s 104 of the Sentencing Act, requiring the imposition of a minimum sentence of 17 years’ imprisonment.
[36] Unlike the range of cases to which he refers,6 Mr Perkins says that in your case there are no mitigating factors that should displace the mandatory minimum term.
[37] The Crown also refers to historic injuries suffered by Aaliyah, saying that Aaliyah had probably previously been assaulted by you in a similar but less forceful way than occurred on 7 August 2014. Mr Perkins says that if this proposition is accepted by the Court, then a higher minimum term of imprisonment would be warranted. But the Crown does not in your case seek the imposition of a minimum term of greater than 17 years.
[38] On your behalf, your counsel accepts that the minimum period of imprisonment is appropriate in this case, and Ms Northwood submits there would be no manifest injustice to you by the imposition of a 17-year minimum term.
[39] However, your counsel says it would be wrong for this Court to make any reference to, or have regard to, the historic injuries that were found to be present
6 R v Harrison-Taylor HC Auckland CRI-2004-092-1510, 12 September 2005; R v Ellery [2013] NZHC 2609; and Lackner v R [2016] NZCA 29.
upon Aaliyah in sentencing you here today, as you were not the only carer for her over the extended period prior to her death.
Approach to sentencing
[40] Mr Solomon, I shall briefly explain to you the Court’s approach in sentencing you.
[41] I must first begin by deciding what the minimum term of imprisonment should be in all the circumstances of the case. Here, I will consider the degree of culpability of your case in relation to that involved in the standard range of murders. I will also take into account the pertinent aggravating factors set out in s 104 of the Sentencing Act to the extent they are relevant, and any other aggravating and mitigating factors personal to your offending and you. As well, I will have regard to the policy that in general, the presence of one or more of the s 104 factors itself establishes that the murder is sufficiently serious as to justify a minimum term of imprisonment of not less than 17 years. I have also considered and taken into account the submissions of counsel appearing for the Crown and your own counsel, and I have taken into account the need for consistency in sentencing and what
sentences have been imposed in comparable cases.7
[42] If the first step indicates that the appropriate minimum period of imprisonment is 17 years or more, the minimum term must reflect that assessment.
[43] Then, I will move on to the second step and consider whether a minimum term of 17 years’ imprisonment would be manifestly unjust. If it is, the minimum term must then be reassessed and adjusted to that which the Court considers to be
justified.
7 Of the range considered, see for example: R v Ngatai-Check HC Wanganui CRI-2009-083-3155,
23 February 2011; R v Loffley [2013] NHZC 201; R v Curtis HC Rotorua CRI-2007-63-4149,
4 February 2009; R v Filihia [2013] NZHC 2833; R v Ngatai-Check HC Wanganui CRI-2009-
083-3155, 23 February 2011; R v Pickering HC Auckland CRI-2008-055-1273, 30 July 2010;
and R v Little HC Nelson CRI-2006-012-2095, 16 March 2007.
[44] The relevant sentencing purposes8 I have particularly taken into account are holding you accountable for the harm done to Aaliyah, and to the community, and promoting in you a sense of responsibility for, and acknowledgement of, that harm. Your conduct must also be denounced. You and any others like you who are responsible for the care and protection of children and who may be susceptible to or tempted to resort to violence against children, must be left in no doubt as to the seriousness with which that kind of conduct will be punished in order to emphatically deter this type of offending, which has no place in our community.
[45] That is because “[t]he community as a whole suffers when children are
mistreated and killed by the very people responsible for their care”.9
[46] While this was offending of a serious kind, I have to bear in mind that I should not impose a sentence upon you that is crushing, and that as far as possible within the limited discretion that I have, the Court is required to impose a sentence that will assist in your rehabilitation and eventual re-integration into society.
The minimum term of imprisonment
[47] Your counsel and the Crown are in agreement that a minimum term of imprisonment of at least 17 years is appropriate in the circumstances of your case. I have reached the same conclusion, and I agree.
[48] Aaliyah was of course extremely vulnerable because of her age.10 She was only five months old. She was defenceless and totally vulnerable to any form of assault, let alone the actual form of assault that you subjected her to and which was fatal.
[49] But what is more, she was in the supposed sanctity of your parental care. As a father, she had a right to be totally safe in your hands. You completely and grossly
abused the high degree of trust and power that is inherent in your role as an adult
8 Sentencing Act, s 7. See also s 103(2).
9 Lackner v R [2016] NZCA 29 at [17].
10 Noting the Court of Appeal’s comment in R v Little [2007] NZCA 491 at [49]: “If s 104(g) does not apply to the murder of a seven month old baby, it is difficult to imagine when it would apply.”
and, more importantly, as her parent.11 You have described your frequent and substantial use of cannabis on a daily basis, and as I understand what you told the Police during your interview on 9 April 2014, you had been using cannabis and were “high” at a time when you were caring for Aaliyah and your step-son. Putting aside any issue of illegality, your use of cannabis in those circumstances demonstrates a high degree of irresponsibility on your part and presented a dangerous environment for the children in your care.
[50] You must have realised this when you chose to give a false account of what had happened to the relevant authorities, saying that Aaliyah had drowned when in fact, the evidence was that there was no water in her lungs. Part of the Crown’s case at trial, which the jury ultimately accepted, was that Aaliyah had not been put in the water in the first place. The fact that you gave a false account of what happened suggests to me that you must have appreciated the consequences of your actions, but instead you chose to portray yourself as the victim of what would undoubtedly be any parent’s worst nightmare: the accidental death of an infant.
[51] Your conduct after the murder is therefore relevant, in my view.12 In saying that, I note that there is nothing to suggest that this misinformation had actually interfered with or diverted the paramedics from carrying out appropriate resuscitative measures. But this does illustrate that your priority, from the outset, was to conceal and avoid responsibility for your offending.
[52] Your conduct following Aaliyah’s death, by which you sought to exonerate yourself, and which I have just described, reveals a high level of self interest and indeed callousness, which is another aggravating feature warranting a minimum period of at least 17 years’ imprisonment.13 Added to that, are the injuries suffered by Aaliyah – the extent of which I have already described. There can be no dispute
that your actions that caused the injuries involved a high level of brutality.
11 The breach of trust is, in my view, a separate and discrete aggravating factor that operates in addition to the s 104 statutory factors.
12 R v Frost [2008] NZCA 406; R v Gosnell [2013] NZHC 1313.
13 Sentencing Act, s 104(1)(e).
[53] Mr Solomon, I acknowledge that unlike some of the comparable cases that I have considered,14 your offending did not involve sustained violence over an extended period of time. The evidence was that the offending must have occurred within the short time-frame when Aaliyah’s mother and older sister15 were away at the supermarket. The injuries Aaliyah suffered, and which caused her death, could either have been the result of one attack or two separate attacks, but whatever be the case, certainly within the short period of time while your partner was away at the supermarket.
[54] The Crown points to historic injuries suffered by Aaliyah in support of the proposition that your offending on 7 August was not an isolated event. It is clear that Aaliyah had suffered quite serious injuries before 7 August, consistent with sustained abuse.16 However I decline to draw the conclusion that it was you who was responsible for some or all of those previous injuries.17 Other people were also caring for her, including your partner and other members of extended family. So you
are not the only possible source of those injuries. I must therefore put this submission to one side.
[55] Although the historic injuries Aaliyah suffered do not count as an aggravating feature against you, the fact that the Crown has not shown you to be responsible for them, conversely does not operate as mitigation either. Mr Solomon, this is not one of those cases where the Court can be confident that your offending was simply a one-off incident, but there is no evidence to prove who was responsible for inflicting the earlier injuries, and as I have said, I put that to one side and do not take it into account when assessing the gravity of your offending.
[56] In all the circumstances, I am satisfied that your case falls clearly within the
provisions of s 104. This means that I must start with a term of 17 years’
imprisonment.
14 For example, see R v Curtis, above n 7; and R v Kapea HC Auckland CRI-2007-092-16885, 25
November 2008 . This was the point made by Peters J in [2012] NZHC 376 at [42].
15 That is, your partner and your daughter.
16 Mahomed v R [2010] NZCA 419; R v Kapea, above n 14; R v Williams, above n 3.
17 Contrast to the facts in R v Loffley, above n 7.
[57] There are no mitigating factors relevant to the offending or personal to you. You maintain your innocence, and you have not expressed or demonstrated any meaningful remorse. Although you have no relevant prior convictions, the absence of prior convictions is not a weighty factor in this context.
[58] The Crown submits and accepts that the statutory minimum period of imprisonment of 17 years is appropriate in all the circumstances of this case, and that it is not necessary for the Court to impose a more lengthy minimum term. I agree.
Would a minimum term of 17 years’ imprisonment be manifestly unjust?
[59] By the wording of s 104, I must not go below the 17-year minimum term of imprisonment unless it would be manifestly unjust to do so.
[60] I emphasise the principle that the 17 year minimum term may not be departed from lightly. The Court is bound to give effect to the legislative policy that requires a 17-year minimum term for murder cases of this serious kind.18
[61] On your behalf, your counsel agrees with the Crown, and accepts that it would not be manifestly unjust to impose a minimum term of 17 years.
[62] While I accept that your offending was not premeditated, in that you did not intend to kill Aaliyah, your attack on her was so violent and brutal that she had no chance of surviving. You knew that you were likely to cause her death by what you were doing, and you must have appreciated that you had in fact caused her death, because you straight away lied to the emergency services and Police and others about how she had received her injuries.
[63] As I say, you continue to deny the offending and fail to take responsibility for
Aaliyah’s death in a real and meaningful way. You have not shown any remorse.
There is nothing to warrant or suggest any diminished culpability on your part.
18 Williams, above n 3, at [66].
[64] The lack of previous violent offending,19 alone, is not enough to make it manifestly unjust to impose a 17-year minimum sentence upon you.20
[65] Accordingly, I agree with counsel’s submissions that the circumstances of the offence and your personal circumstances do not justify a departure from the statutory minimum term.
[66] Your case does not fall outside the scope of the statutory provision that stipulates that murders with specified features are deemed sufficiently serious to require at least the 17 year minimum term of imprisonment. Indeed, your case falls directly and clearly within the scope of s 104 of the Sentencing Act, and I am therefore required to impose the minimum period of imprisonment provided for by that section.
Conclusion
[67] Mr Solomon, please stand.
[68] On the charge of murder, I sentence you to life imprisonment, and I order that you are to serve a minimum term of 17 years’ imprisonment.
Paul Davison J
19 Mr Solomon has one charge for disorderly behaviour under s 4 of the Summary Offences Act
1981. He was convicted and sentenced in 2011 to a $200 fine plus court costs of $132.89.
20 See R v Little, above n 10, at [50]. See also R v Filihia , above n 7; upheld in Filihia v R [2014] NZCA 401.
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