R v T HC Whangarei T04705

[2005] NZHC 438

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

T04705

THE QUEEN

v

D T
 C T

Charge:          Failing to provide the necessaries of life

Plea:               Not Guilty

Appearances: Mr K Thomas/Ms A Patterson for Crown

Mr R Mansfield/Mrs J Verry for Mr T 
Mr A B Fairley/Mr N S Leader for Mrs T 

Sentenced:     19 December 2005

Convicted and discharged

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Whangarei

Copy to:            Mr R Mansfield, Auckland

Mr A Fairley, Whangarei

R V T  AND ANOR HC WHA T04705  19 December 2005

[1]      D    T   and C     T  , you are for sentence this morning following a jury trial in this Court in November.  At the conclusion of the trial the jury found you not guilty of manslaughter but guilty of failing to provide the necessaries of life for your son Caleb.  The maximum penalty as you know is seven years’ imprisonment.

[2]      The circumstances in which Caleb died and which led to the charges against you are well known to you both.  Caleb was born on 8 August 2003.  He died less than four months later on Friday, 5 December 2003.  Caleb was your eighth child. When born Caleb was heavier and longer than most babies.  To all appearances he was a healthy child.  He continued to meet growth milestones until early November. Unfortunately,  tragically  and  unknown  to  everyone,  Caleb  had  an  undiagnosed kidney reflux condition, which ultimately led to his death.

[3]      He fell ill on 23 November.  He showed signs of gastro-illness.  At about that time other members of your family were also suffering from a gastro-illness.  You thought Caleb was suffering that same illness.  To you, after a few days, he seemed to improve and there were no particular matters of concern to you when the public health nurse made a routine visit on 26 November. The public health nurse did note that Caleb had been suffering from the gastro-illness. She rang and checked the position again on 28 November.   On your observations by then Caleb’s fever had broken and he seemed to be improving.  However, over the following weekend, the

29th and 30th November, Caleb’s condition deteriorated again.  It deteriorated to the

extent that you were both very concerned for him and sufficiently concerned that you talked about whether you should take him to the hospital.  On the Monday morning Mr T   you and your father prayed for Caleb.  The family prayed for him and on your evidence he seemed to improve from the Monday afternoon on.   Caleb was seen again by the public health nurse on 3 December and at that time, on that day, she recorded he had suffered a significant weight loss of close to 10% of body weight.  She noted he looked dehydrated.  She was sufficiently concerned that when she left your home that day she sought advice from paediatricians at Whangarei Base Hospital.   The advice was that Caleb should be brought in for assessment.   The

public health nurse told you Mrs T   of that advice but you wanted to wait for your husband to return home before any decision was made.  And when Mr T   returned home you both discussed the matter.  The public health nurse rang again at about 7.30 that night.  Mr T  , your evidence was that you told her you would not be able to bring Caleb in that night but you would be able to bring him in the next morning.  The public health nurse’s evidence was different.  Her evidence was to the effect that you had not definitely agreed to bring Caleb in the next morning. But in the event after speaking again to the paediatric registrar and after being told that Caleb had fed well, it was agreed that matters could be left on the basis the position would be reviewed in the morning.   When the public health nurse spoke again to you on the Thursday morning you told her that Caleb had fed strongly through the night and had wet nappies and you thought Caleb was improving.  On the basis of that the matter was not taken further but it was left the public health nurse would visit the next day on the Friday.  The public health nurse visited Friday

5th.   The evidence that she gave in Court about Caleb’s condition that day was

contrary to the evidence that you gave as to his condition.  On your evidence, Caleb had improved during the course of the week.  You saw him as being worse at the start of the week but improving during the week.  On her evidence, in Court at least, Caleb’s condition on the Friday was worse than it had been on the Wednesday. However, she did not record the matter that way in her notes that she later wrote up after learning of Caleb’s death.  After she left on the Friday morning Caleb seemed tired.  Mrs T   you put Caleb down to sleep and when you checked shortly after you found he was not breathing.  Caleb had died.

[4]      The police were called.  Later that evening both of you were spoken to by the police and you made the video statements that the jury saw.

[5]      In finding you guilty of failing to provide the necessaries of life to Caleb the jury have found as a matter of fact that you failed to provide Caleb with medical treatment and that your failure to do so was a major departure from the standard of care expected of a reasonable parent in the relevant circumstances.  The jury have found that in failing to provide that medical treatment you endangered Caleb’s life. They did not accept that your actions had led to Caleb’s death and for that reason acquitted you, found you not guilty of manslaughter.

[6]      Caleb’s death was a tragedy for both of you and for your family.  We now know that Caleb died as a result of the undiagnosed latent kidney reflux condition that ultimately crossed over to the blood poisoning which led to his death.

[7]      During the course of the trial I heard a lot of evidence from people who know you and that have had contact with you in a variety of ways, neighbours, friends, employers,  educationalists.  Without  exception  they  all  described  you  both  in glowing terms as a strong couple, loving parents committed to your children and honest and reliable people.   The public health nurse went so far to describe you, Mrs T  , as a super mum.  Since your conviction a considerable number of letters have been written on your behalf from people that know you or have had dealings with you.  They all express the same sentiment that I have referred to and in some cases express it extremely strongly.  A lot, in fact probably most of the letters, are from people who do not share your Christian beliefs.   One letter I note is from a family doctor and a family friend who has seen and treated your family over a number of years, both before and after Caleb’s death.  The probation report records your family as a close, warm, loving and supportive unit.  From what I observed during the trial I accept that is an entirely accurate description.

[8]      Mr and Mrs T   this Court must sentence you on the basis of the jury verdict which is that you failed to provide the necessaries of life for Caleb.  But I do so with the advantage of having presided over the trial for almost three weeks.   I have a very clear view of the circumstances concerning Caleb’s illness and ultimate death.  I also have a firm view about your responsibility for that and for your general care and love of your children.

[9]      During the trial a lot was made of your faith and your religious views.  It was said that they were the reason that you did not seek medical treatment or assistance. In the written submissions counsel for the Crown referred to it.  To a large degree I consider  that  the  significance  of  your  religious  views  has  been  overstated  and perhaps sensationalised.   From the evidence that the jury and I saw and heard I accept that the principal reason you did not seek medical assistance for Caleb was because you believed or perhaps hoped he was getting better and that he would continue to do so if you only kept the feeding up to him.  On your observations on a

day  to  day  basis  you  thought,  with  some  relapses,  he  was  getting  better. Undoubtedly you did pray for Caleb.  You trusted that would help.  But you did not rely solely on the prayer and turn your back on medicine or doctors.  I accept that if you were told how serious his condition was and you had to take him to a doctor you would have.  I accept that if you were told his life was in danger you would have taken him immediately to a doctor.  It is no criticism of anyone involved in this case that you were not told that.  At some stage if Caleb’s condition did not improve I accept you would have sought the appropriate medical help.  You were not averse to seeking medical help.  Your faith and your beliefs did not prevent you from seeking medical help.   You did not turn your back on it.   Putting it bluntly Mr and Mrs T   and despite the impressions some may have you are not religious fanatics or members of some extreme sect or cult.  My assessment is you are simple people who try to live your lives by Christian values.  You seek guidance from the bible in doing that and in caring for and bringing up your children.  There is nothing wrong with that.  There were a number of reasons why you didn’t seek medical help by taking Caleb to the doctor or the hospital.  They included your previous experiences with your seven other children.  In the course of bringing them up you had seen them become ill at one time or another but recover.  You had seen them exhibiting the sort of symptoms Caleb exhibited and recover.  You had limited finances and limited support because of the remote area you lived in.  It wasn’t a simple task of popping around the corner to see a doctor.  You had responsibilities in caring for your other young children, several of whom or two I think, were still in nappies themselves. It’s fair to say that you preferred to avoid going to the doctor if at all possible but recognised in some situations it was necessary.  The situation and your failure to take Caleb in this case was no doubt due in part to the masking of the seriousness of his symptoms or what underlay his symptoms by the effect of other family members having the gastro-illness at around that time.

[10]     Where you fell down, and the reason you were convicted is that Caleb had been ill for 10 to 12 days and you failed to realise or recognise he was not getting better overall.   He was not improving sufficiently.   You should in those circumstances have taken him to the doctor or sought medical help.  That is what the jury found you should have done and where you fell down.

[11]     Mr  T    you  are  43  years  old.    You  have  no  previous  convictions. Mrs T   you are 36 years old.  You have no previous convictions.  You are both of good character and have contributed to the community in a variety of ways.  The pre-sentence report quite rightly in my view considers the risk of future offending to be negligible.  No intervention from the probation service is required.  After Caleb’s death a social worker from Children, Young Persons and Their Families Service was assigned to investigate your situation.  She described your children as clean and lovely  and  that  there  seemed  to  be  “no  problems  with  learning  and  that  their education needs were being met”.  She described you Mrs T   as a very nice lady and obviously a Christian but not over the top.  You were seen as a loving mother and the children were well treated.  The social worker reported that as a family you lived  in  the  back  blocks  and  you  were  pretty  poor  but  while  your  material possessions were barely adequate you had done a pretty good job with the children. The case was closed from their point of view.

[12]     In sentencing you as you have heard I must take account of the purposes and principles of the Sentencing Act and apply those principles against s 16 of the Act. Section 16 provides that the Court must have regard to the desirability of keeping people in the community as far as practicable and consonant with the safety of the community.  The Court must not impose sentences of imprisonment unless satisfied the sentences imposed for one of the purposes set out in s 7 (1) of the Act and the purposes cannot be achieved by other sentences.

[13]     The particular purposes relevant in your case are:

•    to  hold  you  accountable  for  the  harm  done  by  your  offending,  namely endangering or putting Caleb’s life at risk;

•  to promote in you responsibility for and acknowledgement of that;

•  to denounce your failure to take Caleb to medical care;

•    to deter you and others from committing similar offences, in other words to deter parents from failing to take children to medical care when necessary;  and

•  to assist in your rehabilitation.

[14]     The relevant principles in your case are:

•  the gravity of the offending, which is reflected in part by the maximum sentence;

•  your degree of culpability which in my assessment is frankly low;

•  the seriousness of the type of offence;  and

•    the general desirability of consistency of sentencing, in other words, parity with other sentencing, cases;

•  the least restrictive outcome for you;  and

•  also to consider your personal family community and cultural background.

[15]     Mr  and  Mrs  T  ,  as  counsel  have  said,  determining  the  appropriate sentence for you is a difficult task for this Court.   In a lot of ways, the criminal justice system and the sentencing process is somewhat of a blunt instrument to deal with the criminality involved in the tragic circumstances of this case.

[16]     I am assisted in the task by reference to other decisions of the Court.  In R v Moore             [1954] NZLR 893 a three year old child died as a result of a bacterial infection for which Ms Moore, the child’s caregiver, failed to provide medical treatment. She was acquitted on the count of manslaughter but convicted of failing to provide necessaries of life, namely medical treatment. She was sentenced to two years’ probation. In R v Burney [1958] NZLR 745 an infant child died as a result of bronchial pneumonia, severe malnutrition, anaemia and chronic skin sepsis. Her parents were charged with manslaughter and in the alternative failing to provide necessaries of life. The husband was found not guilty on both counts. The wife was found not guilty of manslaughter but guilty on the count of failing to provide necessaries of life. She was sentenced to two years’ probation. In R v G (HC Wellington, T109-110/90, 28 November 1990, Savage J) two parents were found

guilty at trial on a count of failing to provide their daughter with the necessaries of life, in that case insulin. They were charged with but acquitted on manslaughter. Both were committed Christians.  They wanted a better life for their daughter, and acted with that as their motivation in withdrawing her from the insulin treatment.  It was a rare, though known complication of the daughter’s condition that led to her death as a result of the withdrawal of that insulin.  In that case the Judge convicted and discharged the parents and gave them name suppression.   In R v Laufau & Laufau (HC Auckland, T000759, 2 October 2000, Potter J) which has been referred to, a 13 year old child died of a cancerous tumour on his leg.   The tumour was allowed to grow to the stage it weighed 15 kgs.  It then spread to his lungs.  Despite direct warnings that the cancer would kill him his parents did not take him for medical treatment or help. They were found guilty of failing to provide the necessaries of life.   In sentencing the Judge took into account the value society placed on the sanctity of human life but also noted there was no malice or ill will. The Judge considered there were special circumstances justifying the imposition of a suspended sentence of 15 months’ imprisonment.  In R v Ash & Hirchkop (DC Manukau, CRI03-057-1570, 25 November 2005, McAuslan DCJ) a mother and a person in place of the father were found guilty of failing to provide the necessaries of life.  The child in that case was aged just over two and died of pneumonia.  The child had head injuries and a broken arm both of which occurred weeks before death.  The injury to the head was serious.  It would have been apparent the child had extreme swelling and would have been in pain so that she would have been unable to use a limb.  They were sentenced to two and a half years’ imprisonment.  In R v Small, Wharehinga & Lung (HC Dunedin, CRI 2003-012-005776, 21 January 2004, Chisholm J) the child was subjected to violence.  The mother was depressed.  She was convicted of charges of failing to provide the necessaries of life and was sentenced to 18 months’ imprisonment with leave to apply for home detention.

[17]    During this trial reference was made to the case of R v Moorhead (HC Auckland, T011974, 13 June 2002, Harrison J).  That case concerned the death of a five month old child, a month older than Caleb.  The accused in that case were found guilty of manslaughter.  The couple were vegans.  They abstained from fish, meat and dairy products.  They believed God and herbal remedies would save their child. The child was actually in hospital, but the parents fled the hospital taking him with

them despite advice.  They were told clearly that their child would die without an immediate injection of vitamin B12.   They ignored that advice and took the child away, directly away from treatment.  Their child died shortly thereafter.  They were convicted of manslaughter and sentenced to five years’ imprisonment.  I refer to that case because some reference to it was made during the trial.  In my view it is simply poles apart from the present case.

[18]     It is apparent from that brief summary of the authorities that the cases of failing to provide the necessaries of life fall into two broad categories.  First, those where there has been severe abuse leading to the death of the child but for one reason or another there has not been a conviction of manslaughter and the second where there has been no abuse but the child has nevertheless died from neglect or the failure to obtain medical treatment.  In the first category sentences of imprisonment are entirely appropriate and have been imposed.   In the second category, which I would categorise as cases of true neglect without abuse or ill treatment, the cases again seem to fall into two categories, the more culpable cases where the seriousness of the child’s illness must have been apparent as opposed to the cases where, while the child may have had symptoms of illness, the illness was perhaps not appreciated as out of the ordinary or the underlying fatal illnesses or conditions were unknown. An example of a case where the child’s illness must have been apparent was R v Laufau & Laufau.  Again sentences of imprisonment might well be appropriate in such cases.

[19]     At the other end of the scale and at the lower end of culpability is offending where there has been failure to provide medical treatment but the extent of the underlying illness is not apparent as I have said.  Those cases are for instance R v Moore and R v G.

[20]     In my view your case falls into the category of neglect but neglect based on an ignorance of not knowing just how ill Caleb was or what underlay his symptoms. I am satisfied that if you knew or had any inkling of the danger to Caleb you would immediately have sought whatever treatment was necessary.  There is and can be no suggestion of ill treatment, malice or general neglect towards Caleb.  I reject the Crown submission in the written submissions that your behaviour was cruel.  Caleb,

like your other children, was a well loved child.  The other aggravating features identified by the Crown in written submission of vulnerability and your being in a position of trust are in my view largely covered or represented by the elements of the charge itself.

[21]    There are no personal aggravating circumstances in this case.  There are a number of personal mitigating factors.  You of course have no previous convictions. You are both of good character.  You are both undoubtedly remorseful.  You have already suffered a great deal over the last two years since Caleb’s death.  You have had to live with the criminal charges and the trial process.  It has been a significant cost to you, both financial and personal.  You have limited financial means.  During the course of the trial at least Mr T   you have been unable to work.  During the course of the trial both of you and your family, your lifestyle and your faith have been subjected to intensive public scrutiny.  You have been subject to severe but I emphasise fair cross-examination on those personal issues.

[22]     The process that you have been engaged in since December 2003 itself must have been a particularly harrowing one for people of your background and your commitment to your family and the way you live.  The main burden, however, that you have had to live with is the knowledge that if you had acted differently during the last week of Caleb’s life he may well still be alive.

[23]     I have given anxious consideration to this sentence.  I have concluded that a sentence of imprisonment is not required or appropriate in your case.  While the fact Caleb died looms over this sentencing process, you were not convicted of manslaughter.  The jury accepted that your actions did not cause Caleb’s death.   I terms of purposes and principles of the Act a sentence of imprisonment is not necessary to hold you accountable for the harm and to promote in you a sense of responsibility for the effect of your failure to seek medical treatment.  I am sure that you have a sense of responsibility for what has happened, and you will carry that as a burden with you daily.  Your conduct in failing to obtain medical treatment has been denounced by the criminal process and the trial.

[24]     As for deterrence I accept there is no need to impose a sense of imprisonment to deter you from offending.  You were and still are open to medical treatment.  You have in your own words during the course of the trial learnt a sharp lesson as a consequence.  The principal matter of concern to the Court is the need to provide deterrence for others.  Again I conclude that imprisonment is not necessary for that. I accept that your offending was at the very lowest level of culpability for offending of this nature on the facts as I have heard them.  The deterrence must be directed at the crime and culpability.  In this case in my judgment it is satisfied because with the publicity from this trial other parents will know that if they take risks with their children’s health and put off taking them for medical help they may face the risk of a prosecution such as this and a very public hearing.   In proper cases imprisonment may well be appropriate for neglect but this is not one of those cases.

[25]     A fine is not appropriate or realistic.   Your financial circumstances do not permit of that.

[26]    I then consider the community based sentences, particularly of community service or supervision.  I have concluded community work is not appropriate in this case.  You have a significant credit with the community already with the unpaid and voluntary work you have done within the community.  There is no need for you to make further compensation to the community generally.   Nor is a sentence of supervision necessary.  The Children, Young Persons and Their Family Service has investigated your parenting and your care of other children as a result of this case. They are satisfied with it and there can be no sensible suggestion of any risk of re- offending.

[27]     I am then left with the alternatives of convicting you and ordering you to come up for sentence or convicting and discharging you.  The latter course of action is recommended by the probation officer.   A conviction and order to come up is often used so the Court can supervise an offender or ensure that other conditions are adhered to.  It is most appropriately used where the offender is also required to make some form of reparation or other order of one kind or another.  It is not appropriate in your case for the reasons that supervision is not appropriate or required.

[28]     Mr and Mrs T  , please stand.  You are both fortunate in many respects. You  have  had  and  continue  to  have  the  support  of  your  family  and  friends throughout this process.   You have a strong faith.   I trust that those factors will enable you to cope with the knowledge that if you had acted differently Caleb might still be alive today.  Given that you must live with that fact and given the process that you have been through in my judgment the interests of justice do not require the imposition of any further sentence in the particular circumstances of this case.

[29]     On the charge of failing to  provide the necessaries  of  life  you  are both convicted and discharged, you may stand down, that’s all.

G J Venning J