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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v T

Details

AGLC: R v T [2021] NZHC 64
Case: [2021] NZHC 64
Decision Date: 3 February 2021

CaseChat Overview and Summary

In the case of The Queen v T, the defendant, Ms T, was sentenced for manslaughter arising from the death of her 11-month-old son. The court was required to decide whether to discharge Ms T without conviction or to convict and discharge her under s 108 of the Sentencing Act. The court had to consider the consequences of a conviction, the gravity of the offence, and whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

The court found that the consequences of a conviction would be significant for Ms T, who was already suffering from severe depression and a fragile mental state due to the death of her son. The court also found that the gravity of the offence was similar to that in other cases where the defendant was discharged without conviction. The court concluded that convicting Ms T would be out of all proportion to the gravity of the offending, given the consequences already faced by Ms T and her family.

Ms T was discharged without conviction under ss 106 and 107 of the Sentencing Act and was free to go. The court also made orders prohibiting the publication of Ms T's name, address, or identifying details under ss 200 and 202 of the Criminal Procedure Act 2011.

Orders