R v T

[2021] NZHC 64

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT/VICTIM OR CONNECTED PERSONS PURSUANT TO SS 200 AND 202 CRIMINAL

PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2020-016-1716

[2021] NZHC 64

THE QUEEN

v

T

Hearing:	3 February 2021
Appearances:	S B Manning for the Crown L Maynard for the Defendant
Judgment:	3 February 2021

SENTENCING OF COOKE J

[1]    Ms T you appear today for sentencing following your plea of guilty to the charge of manslaughter arising from the death of your 11 month old son.

[2]    I begin by making orders prohibiting the publication of the name, address or identifying details of you or your family under ss 200 and 202 of the Criminal Procedure Act 2011 as has been agreed by the Crown and your lawyer. The death of your son has obviously been highly distressing and I accept that there would be extreme hardship if there would be any publicity of this matter that would identify you or the whānau.

R v T [2021] NZHC 64 [3 February 2021]

[3]    As you know there has been a large measure of agreement between the Crown prosecutor and your lawyer about what should happen today. It is accepted that you should be discharged and not required to serve any sentence. But by my minute of  29 January I raised the question whether your case should involve a discharge without conviction under s 106 of the Sentencing Act, rather than conviction and discharge under s 108, and I have had the further benefit of submissions directed to that question.

[4]    The process that I am going to follow is to first describe the facts that resulted in your son’s death. I will then describe the approach that has been followed in other broadly similar cases, and then ultimately explain how I have decided your case should be dealt with.

The relevant facts

[5]    I begin with the facts. I appreciate that it may be distressing for all involved for me to go through them again, but that is an important part of resolving these matters before the Court.

[6]Your son was one of three children that you had at the time with your partner.

[7]    The events happened on 23 May 2020. Your third child had been born some three weeks earlier. Your son had been playing with his brother outside and came in for a bath and you put the two children together in the bath tub and turned the water from the shower head on.

[8]    As you explained you normally pull the plug out of the bath tub every time. But that day you must have been distracted and didn’t do so. You left the bathroom and began to complete a series of household tasks including washing, mopping and dishes. During that time your son’s brother, who was two years old, called out from the bath on multiple occasions. You heard this but did not register that this was because of any question of alarm. It is assessed that it would have taken between 16 and 24 minutes for the bath tub to fill. You did not check on them over that period. When you did return the bath tub had filled up and your son was lying face down and unresponsive. You grabbed him out and attempted to do CPR. Your partner took over and you rushed to the neighbours to call emergency services.

[9]    When at Gisborne Hospital under resuscitation a heartbeat returned. He was admitted to intensive care at Starship on 24 May. Investigations showed that he had non-survivable brain damage and he died on 27 May at 4.15 pm.

Approach in similar cases

[10]   The next step is to consider how the Court has dealt with similar cases. Unfortunately tragic cases of this kind do occur from time to time.

[11]   Under s 106 of the Sentencing Act a Court can discharge a defendant without conviction if satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. This requires the Court to identify the gravity of the offence, then the direct and indirect consequences of a conviction, and then consider whether direct and indirect consequences would be out of all proportion with the gravity of the offending.1 It is recognised that it is a wide discretion that is heavily influenced by the facts and circumstances of the case. Similar cases therefore have some relevance. I mention three cases that have some similarity.

[12]   In R v Waiba a seven month old drowned in very similar circumstances.2 The child was left in a bath tub with the shower going when his mother took a telephone call lasting for approximately 20 minutes. During that period the plug hole became blocked by a toy and he drowned. In that case the Court decided not to discharge the mother without conviction under s 106, but did convict and discharge her under s 108, much as the Crown seeks here.

[13]   In R v Illston a 22 month old drowned in the family swimming pool when her mother left her with other older children to attend to her two week old baby.3 After assessing the impact on the defendant and the defendant’s family the Court discharged her without conviction under s 106.

[14]   R v X involved a mother who usually dropped her 16 month old at day care on the way to work. That day she was distracted by work, and was on auto-pilot, and she

1      See R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.

2      R v Waiba, HC Auckland, T.025743, 8 August 2003.

3      R v Illston, HC Whanganui, CRI-2011-034-273, 16 November 2011.

forgot to turn off to go to day care. It was several hours later that her son was found in the car in the carpark of her work where he had died of heatstroke and dehydration.4 The Court also discharged the defendant without conviction under s 106.

Your case

[15]What then should be done in the circumstances of your case?

[16]   Although it involves assessing things a little out of order, I first consider the consequences of a conviction. There are, of course, obvious implications in terms of the impact upon you from your son’s death. I have had the advantage of an s 27 Cultural Report from Mr Leonard Hemi who has provided a full understanding of you, and how things were for you at the time of this accident. He has explained how difficult things have been in the past, and in particular how tired you were after the birth of your new child at the time of the incident. You were not only psychologically tired, but dealing with the full burden of three young children and a household. He describes the devastating impact on you of your son’s death and your concerns about the impact of conviction.

[17]   I also have the advantage of the affidavit from your GP Dr Fairbairn. She has explained the mental health difficulties you have had in the past, including your suicide attempt some four years ago. She has explained that your mental health is even more fragile as a consequence of these events, and that you are suffering from severe depression as a result of his death and the role that you played in it. Whilst many of these implications will likely arise irrespective of conviction, they are nevertheless relevant to understanding what the consequences of a conviction would include. Whether the Court decides to convict you of a serious criminal offence because of your conduct will have significance for you. Conviction would add to the psychological impact of the events, and I am concerned about your mental health.  Mr Maynard also identifies how a criminal record will impact upon you from a practical point of view. It seems to me that the consequences of a conviction would be very significant for you.

4      R v X [2015] NZHC 1244.

[18]   But it is necessary for these implications to be out of all proportion with the gravity of the offending. In terms of gravity attention is usually focused on the level of culpability involved with the defendant’s conduct.

[19]   In R v X — the case where the child died in the back of the car — the Court looked at comparable cases and concluded that the culpability of the defendant in that case was at the lower end, as usually there is an initial appreciation of risk such as awareness that a child is near water or was unsupervised. In that case the Court concluded that what was involved was unextraordinary blanking of mind without that initial risk being apparent.5

[20]   It seems to me that the present case also involved a similar blanking of mind in circumstances when you were exhausted. You had noted that the plug was in the hole, and that you needed to take it out. But you simply failed to do so as you usually do. I accept it can be said that there was always some risk in you leaving the boys in the bath tub unsupervised. And that is indeed so. But for so much to depend on that factor involves an overly refined analysis of culpability in my view. When a very tired parent makes a mistake that has such terrible consequences, to focus on this factor and suggest it makes a difference in terms of culpability, so that one parent is convicted of manslaughter and the other is not, does not seem to me to be justified. To say your case is meaningfully different from R v X or Illston is unrealistic. Just as in those cases you made a simple mistake. Parents make mistakes all the time. The fact that it had such tragic consequences here does not mean it wasn’t just a mistake. For a parent the pain and ongoing distress arising from the loss caused by the mistake is punishment enough.

[21]   It might be said that it is necessary for the Court to mark out the offending on behalf of the community by at least entering a conviction. But you appear here today in a Court of law acknowledging before the community that you made a mistake which has resulted in the death of your son. This seems to me to fully respond to that requirement. I see no benefit to the community, or otherwise in convicting you for manslaughter. No relevant sentencing principles would be advanced. In my view the

5      At [8]–[9].

consequences of such a conviction would be out of all proportion to the gravity of your offending given the consequences I have earlier described.

[22]   I also note as significant the positive support that you have had from your whānau, and the efforts made by you and your partner that have involved an improvement in your lives together. It is important that you continue to work to rehabilitate from these terrible events.

[23]   Ms T would you mind standing. On the charge of manslaughter you are discharged without conviction under ss 106 and 107 of the Sentencing Act and you are free to go.

Cooke J

Solicitors:

Crown Solicitors, Gisborne

Rawhiti Legal, Gisborne for the Defendant