R v T

[2022] NZHC 1038

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-063-3764

[2022] NZHC 1038

THE QUEEN

v

T

Hearing:	13 May 2022
Appearances:	A Gordon for Crown S Gray for Defendant
Sentence:	13 May 2022

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Rotorua

R v T [2022] NZHC 1038 [13 May 2022]

[1]                   Ms T, you appear for sentence at the age of 28 years having pleaded guilty to charges of murder,1 injuring with intent to injure2 and ill-treating a child (x2).3

[2]                   The charge of murder carries a maximum sentence of life imprisonment, whilst the other charges carry maximum sentences of five and ten years imprisonment respectively.

Background

[3]                   You entered your guilty plea based on an agreed summary of facts. This discloses that the charges relate to events that ultimately led to the death of your daughter, Comfort-Jay, who was just 18 months of age at the time of her death.

[4]                   The charges other than that of murder were laid as a result of a series of events that occurred from at least January 2018 until Comfort-Jay’s death on 24 July 2018. During this period you ill-treated and physically abused Comfort-Jay in numerous different ways. You assaulted her by slapping and hitting her head, face and body. You would grab her with excessive force and scratch her with your fingers. You failed to change her dirty nappies and failed to keep her clean and warm. You also failed to provide her with enough food to ensure she was well nourished. In addition, you would keep her confined to her cot and a couch for extended periods. You would punish her if she endeavoured to leave these areas.

[5]                   This ill treatment occurred on a regular basis. At one stage she was seen by others to have two black eyes. Following her death she underwent a post-mortem examination. This revealed extensive soft tissue bruising to almost every part of her body. She also had extensive scratch marks all over her body, particularly on her neck and chest.

[6]                   Comfort-Jay was also found to have suffered from extreme nappy rash. This was so severe that large parts of her skin were peeling off parts of her buttocks. She also had deep-crusted fissure in the area where her nappy would sit. In addition, she

1      Crimes Act 1961, s 167(b).

2      Section 189(2).

3      Section 195(1).

had a large, and undoubtedly painful, ulcer under her chin. This was most likely caused by her dribbling and you failing to clean her up.

[7]                   At the time of her death Comfort-Jay weighed just eight kilograms and was plainly malnourished. Her weight placed her in the second percentile for her age and can only be explained by the fact that you did not feed her properly. In addition, as I have said, you would confine her to a cot for long periods and then to a small corner of a couch. If she endeavoured to move or get off the couch you would assault her.

[8]                   The assault that led to the charge of injuring with intent to injure resulted in Comfort-Jay receiving a torn frenulum, which is the thin membrane of skin in the centre of the top of the mouth. The assault that caused this injury is also likely to have resulted in the loss of one tooth and the loosening of another. It is likely that this assault occurred within two weeks prior to her death. You admitted you had assaulted her on the face and mouth, resulting in swollen lips and a bloody mouth.

[9]                   Charge 3, a charge of ill-treating Comfort-Jay by failing to seek medical care for her, relates to a healing fracture discovered on her left clavicle. The clavicle is the bone that connects the sternum, or breastplate, to the shoulder. The fracture was visible as a protrusion under the skin and would have been noticeable by you. It would also undoubtedly have caused Comfort-Jay considerable pain.

[10]               The mechanism that ultimately caused Comfort-Jay’s death is unknown. The pathologist found she had died of head injuries caused by blunt force trauma. She had suffered a number of impacts to her head that had caused both a subdural and subarachnoid haemorrhage. She also had extensive retinal haemorrhaging, that is haemorrhaging to the retina of the eyes, which is indicative of blunt force trauma to the head. In addition, she was found to have extensive bruising in many locations on her scalp.

Aggravating factors

[11]               Your offending contains numerous aggravating factors. The most serious aspect of your offending, inherent in the charge of murder, is that you have robbed your daughter of her life at an extremely young age. The victim impact statements I

have read from members of your family tell of the devastating effect your actions have also had on your wider family. One of these is that your remaining children will effectively have no mother for many years. That role has now passed to your wider whanau.

[12]               Your offending is also aggravated by the fact that prior to your daughter’s death you physically abused and neglected her over several months. You inflicted this abuse on her, and then delivered the blows that ultimately caused her death, in circumstances where you had an obligation to keep her safe. Your breach of that obligation amounted to a gross breach of trust.

[13]               Comfort-Jay was also particularly vulnerable because she was born with a significant birth defect that led to her being hospitalised for the first four months of her life. Her condition required constant care and attention rather than physical abuse and neglect. The abuse also took many forms as the injuries I have described confirm. You were therefore prepared to cause physical harm to your daughter in numerous different ways.

[14]               Furthermore, you failed to obtain medical help for her when she was obviously in need of it. The fact that you never sought medical assistance for the broken clavicle is an obvious, and one of the more extreme, examples of this. The events that occurred on the day that Comfort-Jay died are also noteworthy. On that date you called Healthline at 9.45 am. You said your daughter had been unwell since about 4 am that morning. The call lasted for ten minutes and 37 seconds. By this stage Comfort-Jay must have been critically unwell and you would have been well aware of that fact. Healthline offered twice to call an ambulance for you and they also made it clear to you that it was imperative that your daughter receive medical care urgently. Despite this advice you waited for more than two more hours before doing anything. The culpability of this omission is obviously aggravated by the fact that you had known since at least 4 am that your daughter was unwell. It took you nearly six hours to contact Healthline and seek advice. Then, when you received it, you failed to heed it for approximately two hours.

[15]               I accept, however, that you did not intend to cause Comfort-Jay’s death. This is reflected in the fact that the Crown has laid the murder charge under a section that does not require intent to kill.4 This requires the infliction of an assault knowing that death may result but carrying on regardless.

The sentence

[16]               As you will be well aware, the Court is required to impose a sentence of life imprisonment on the murder charge unless it would be manifestly unjust to do so.5 Both counsel accept that a sentence of life imprisonment is the only available sentence in the circumstances of this case and that is the sentence I will impose.

Minimum term of imprisonment

Section 104 of the Sentencing Act 2002

[17]               The real issue to be determined today is the length of time you will be required to spend in prison before you are able to apply for parole. Both counsel agree that your offending engages s 104 of the Sentencing Act 2002. Where section 104 applies, the minimum term of imprisonment must be at least 17 years unless it would be manifestly unjust to make such an order.

[18]               Section 104(1)(g) applies in your case because Comfort-Jay was particularly vulnerable given her age and total reliance on you for protection. The Crown submits that s 104(1)(e) is also engaged because you committed the murder with a high level of cruelty and callousness. I have difficulty with this submission because, although the cause of death is known in general terms, it is not known how the fatal blows were inflicted. It is therefore difficult to determine that the assaults involved the high level of brutality or callousness required to engage s 104(1)(e). However, I accept that the infliction of these types of physical violence on a victim of this age must engage concepts of both cruelty and callousness to some degree. That is particularly so when no effort is made to obtain medical assistance for the resulting injuries. I therefore proceed on the basis that the section is engaged because of the vulnerability of the

4      Crimes Act 1961, s 167(b).

5      Crimes Act 1961, s 102.

victim and that this is aggravated by the elements of cruelty and callousness that you displayed.

[19]               In a case where s 104 is engaged the Court is required to undertake a two-step process.6 In the first, the Court looks to comparable cases to ascertain what the minimum term of imprisonment would be but for the application of s 104. At the second stage of the process the Court must consider whether it would be manifestly unjust to require the offender to serve a minimum term of 17 years before being eligible to apply for parole. This requires the Court to stand back and determine whether as a matter of overall impression the offending falls within or outside the type of case to which Parliament intended s 104 to apply.7

Minimum term: starting point

[20]               Both counsel have cited several sentencing authorities.8 These lead the Crown to submit that the aggravating factors inherent in your offending warrant a minimum term of between 18 and 19 years imprisonment before taking into account mitigating factors. Your counsel submits that a minimum term of 17 and a half to 18 years imprisonment is appropriate.

[21]               Other cases are obviously of limited assistance given that the facts of each case are invariably different. However, there is very little difference between counsel on this issue. This reflects the fact that minimum terms of imprisonment of 17 to 20 years are regularly imposed for offending of this type. Given the aggravating factors I have identified I consider the overall culpability of your offending would ordinarily require a minimum term of 18 and a half years imprisonment. I now need to consider the extent to which, but for s 104, this should be increased or reduced to reflect aggravating and mitigating factors personal to you.

6      R v Williams [2005] 2 NZLR 506 (CA).

7 At [67].

8      R v Kapea, HC Auckland CRI-2007-092-16885, 25 November 2008; R v Curran HC Tauranga CRI 2005-070-6292, 1 February 2008; R v Williams HC Wellington CRI-2004-078-1816, 24 February 2006; R v Paul CA496/05, 1 August 2006; R v Curtis & Ors HC Rotorua CRI-2007-063- 4149, 4 February 2009; Filihia v R [2014] NZCA 401; R v Sio [2021] NZHC 1709; R v Harrison- Taylor HC Auckland CRI-2004-092-001510, 12 September 2005; R v Cooper [2017] NZHC 2498; R v Ellery [2013] NZHC 2606; R v Lackner [2016] NZCA 29; R v MS [2017] NZHC 206; R v Wakefield [2019] NZHC 1629.

Aggravating factors

[22]               You have several previous notations in the Youth Court and convictions in the District Court. None of these relates to offending involving serious violence and you have never received a sentence of imprisonment. There is therefore no basis for increasing the minimum term to reflect your previous convictions for similar offending.

Mitigating factors

Guilty pleas

[23]               The application of a discount for mitigating factors in the present context is different to the process usually undertaken when imposing a sentence of imprisonment. By way of example, it is not uncommon to apply a discount of up to 25 per cent to reflect guilty pleas when fixing a sentence of imprisonment. That regime does not apply when considering whether to reduce a minimum term of imprisonment to reflect guilty pleas.9 Both counsel agree that in the present context discounts of around one to two years are commonly applied.

[24]               In your case I consider the discount that can be given for guilty pleas is limited. You were originally scheduled to stand trial on 9 February 2021. You removed your electronic bracelet and absconded during the week prior to the commencement of the trial. You then remained in contact with your counsel after the jury had been selected and indicated that you proposed to surrender in the near future. You ultimately waited, however, until the Judge had discharged the jury before surrendering to the police. You were then remanded in custody for trial on 9 May 2022. You entered guilty pleas to the charges of ill-treating your daughter on 30 July 2021. However, you did not plead guilty to the charges of murder and injuring with intent to injure until 8 April 2022. This was just one month before your second trial was scheduled to begin.

[25]               The fact that you absconded before the first trial is not an aggravating factor for present purposes. You have already been punished for that through the sentence of imprisonment you received in the District Court on a charge of failing to appear at

9      Malik v R [2015] NZCA 597 at [35]-[37].

trial. The relevance of your conduct is that you entered your guilty pleas to the charges of murder and injuring with intent to injure at a very late stage.

[26]               They were also entered in the face of an extremely strong Crown case. As the person responsible for Comfort-Jay’s care you must always have known you were responsible for the injuries she suffered and for the events that led to her death. I accept that you may well have had considerable difficulty coming to terms with the fact that you caused your daughter’s death and were criminally liable for doing so. Nevertheless, given the background to the pleas I would only be prepared to reduce the minimum term by nine months to reflect this factor.

Personal circumstances

[27]               Your counsel has provided me with both a psychologist’s report and a detailed report tendered under s 27 of the Sentencing Act 2002. These overlap to a considerable degree because both describe your upbringing and background in great detail.

[28]               It is clear that you have led an extraordinarily disadvantaged life. You grew up in the face of adversity in a dysfunctional family environment and in circumstances of poverty and deprivation. Physical violence was a feature of your parent’s relationship and you were the subject of sexual abuse by a family member whilst attending primary school. These issues led you to becoming involved with drugs and alcohol at an early stage of your life. You have had a methamphetamine addiction for many years. The reports also indicate that you are likely to have suffered from post-natal depression. In addition, you may well suffer from post-traumatic stress disorder as a result of the many episodes of violence and abuse to which you were subjected in your early years.

[29]               Your family led a nomadic existence. You went from school to school and were ultimately expelled shortly before the age of 16 years. You were placed in State care for a period when you were 15 years of age. Your lack of any structured education has had an obvious effect on your employment opportunities because you have seldom held down a regular job for any meaningful length of time. Your own relationship has also had major difficulties, including gang associations and violence. The relationship produced three children, who in turn have been subject to a lifestyle of deprivation and poverty whilst in your care.

[30]               Your living arrangements during the months leading up to Comfort-Jay’s death were particularly abysmal. You were living with several other family members and their children in circumstances that can realistically be described as squalor. The house was overcrowded, and tensions were high between family members. Nobody was prepared to take responsibility for looking after the children. Consumption of methamphetamine and alcohol occurred at a great rate. I accept that all these factors are likely to have exacerbated the stress you were already under given that you had three young children to look after.

[31]               You are undoubtedly remorseful and know you are required to live with what you have done to your daughter. You say you are determined to get your life back on track and have already begun to do so in prison. Given the path your life has taken to date, Ms T, it will obviously not be a simple undertaking for you to rehabilitate yourself. It will take great determination over the years that you are about to serve in prison.

[32]               I agree with your counsel when she says there is really no surprise that you are before the Court today because it was virtually inevitable from the outset that you were always at risk of some form of major personal catastrophe given the upbringing you have had. Having said all this, as your counsel also realistically recognises, your background provides an explanation but not an excuse for the manner in which you treated Comfort-Jay.

[33]               I would reduce the minimum term of imprisonment by a further 12 months to reflect your appalling upbringing and the likely nexus this has to the current offending. I would then reduce the minimum term by six months to reflect your remorse, the insight you now display into the offending and your expressed determination to rehabilitate yourself. This would reduce the minimum term to one of 16 years three months imprisonment.

Manifest injustice

[34]               This brings me to the final stage in the sentencing process, which is to determine whether it would be manifestly unjust to require you to serve a minimum term of 17 years rather than 16 years three months as would have been the case but for

s 104. The difference between 16 years three months and 17 years is not particularly great in numerical terms. However, that is not the test. The test is whether, as a matter of overall impression, your offending is of a type to which Parliament intended s 104 to apply. Your offending involved the systematic physical abuse and neglect of a young child who was completely defenceless and reliant on you for protection. It culminated in her death by an assault or assaults. I consider this falls squarely within the type of offending to which Parliament intended s 104 to apply. I therefore do not consider it to be manifestly unjust to require you to spend 17 years in prison before being eligible to apply for parole.

Sentence

[35]               On the charge of murder you are sentenced to life imprisonment and ordered to serve 17 years before being eligible to apply for parole. On each of the remaining charges you are sentenced to three years imprisonment. All sentences are to be served concurrently with each other.

Addendum

[36]               At the beginning of the hearing today I dismissed an application by Ms T for permanent name suppression. Ms Gray advised me that Ms T intends to appeal against that decision. As a result, Ms T enjoys statutory name suppression for a further 20 working days. For this reason my sentencing remarks will be distributed with Ms T’s name anonymised.

Lang J