R v Tahuri HC Wanganui CRI 2009-083-677

[2010] NZHC 929

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2009-083-000677

THE QUEEN

v

JOANNE JASMINE TAHURI

Counsel:         L C Rowe and B D Vanderkolk for Crown

C P Brosnahan and E A Hall for Prisoner

Sentence:       18 June 2010

SENTENCING REMARKS OF GENDALL J

[1]      Joanne   Jasmine   Tahuri,   you   appear   for   sentence   for   the   crime   of manslaughter.  Originally you were charged with murder but after a scheduled four week trial had gone for just over two weeks, you pleaded guilty to the crime of manslaughter and you did so and when you offered to do so the Crown agreed to amend the indictment and the charge to that crime which was the proper crime.

[2]      Your crime occurred because on 17 February 2009 at Marton, you seriously assaulted your granddaughter, Cherishsiliala Sheliah Tahuri-Wright and by that unlawful act you caused her death and committed manslaughter.

[3]      The facts upon which I sentence you are well known to me, because I dealt with  pre-trial  arguments  regarding  admissibility  of  propensity  evidence  and  I presided at your trial for its two weeks duration.  Of course, most of the evidence had

R V TAHURI HC WANG CRI-2009-083-000677 [18 June 2010]

not been completed, but there was more than sufficient for me to reach a clear view as to what happened.  Your counsel and the Crown Solicitor submitted to the Court a summary of facts at the time of your guilty plea, which were agreed upon by both you and the Crown.  So I do not need to deal with my assessment of the primary facts in any detail, although the inferences or conclusions that can be drawn from the agreed summary of facts that have been submitted naturally remain open to the Court.

[4]      I am not reading out the facts which the Crown and your counsel have agreed upon, but I only summarise them as follows.

[5]      Cherish was your granddaughter, who was left in your care late in January

2009.   You were caring also for another of your grandchildren, Cherish’s cousin. Both children were barely three years old.  You had displayed a propensity to use your hands and fists on your grandson and you were seen on occasions to punch him to the body and slap his face and head.  He was a lively, at times difficult, at times naughty, three year old boy – something not particularly unusual in any domestic situation.  You were not well equipped it seems, to handle the inevitable stresses that caring for two infants inevitably bring to a caregiver.  Your propensity to strike the children at times, when frustrated or angry or stressed, was also demonstrated, when five days before the fatal event you were seen to strike Cherish in the street, hitting her on the back of the head because you were irritated that she was not keeping up with you.  That event was significantly troubling for two bystanders to remember it and one in particular to remonstrate with you about it.

[6]      On the morning of 17 February 2009 Cherish was quite well, but by midday she was grievously injured.  Some time around 11.00am your grandson was either playing up or proving difficult to handle.  You lost your temper and in a fit of anger violently struck, not your grandson, but your vulnerable granddaughter Cherish.  She was hit about the head with sufficient force to lead to a subdural haemorrhage – that is bleeding between the brain and the skull – and a haemorrhage to the retina – that is the back of the eye.  Her injuries were life threatening and she collapsed in a coma. Unquestionably you were in a state of panic.  You attempted to revive her but her condition  rapidly  deteriorated.    When  medical  assistance,  as  well  as  the  police

arrived, a short time after midday, Cherish was clearly suffering extensive trauma to the head, was in a coma and had noticeable injuries to her forehead and face.  When she was eventually subjected to surgery in Wellington Hospital later that day the neurosurgeon assessed her injuries as being unsurvivable.  She died at 12.30am two days later on 19 February 2009 when life support was terminated.

[7]      You endeavoured to explain away the child’s injuries on the basis that she had had playground falls, and that further, her three year old cousin had inflicted violence upon her and was a likely source of the fatal injury.  A week later, after you had taken legal advice and the pathologist’s post-mortem findings were obtained, you were spoken to by the police and a very lengthy videotaped interview occurred. You  consistently  maintained  that  you  had  not,  in  any  shape  or  form,  inflicted violence upon Cherish and that the injuries she suffered arose from falls at home, in the playground and from the three year old cousin.  So it was not until two weeks into your trial that an acknowledgement came from you that it was your wrongful acts that caused Cherish’s death.

[8]      You are now aged 57 years old and are a beneficiary.  You have 11 previous convictions largely for theft, false pretences and shoplifting and many years ago you were  sentenced  to  borstal  training.    But  it  is  eight  years  since  you  have  any significant conviction for theft, so in this sentencing exercise I am not going to treat any of those convictions at all as aggravating, so as to require any uplift from the starting point which I will adopt.  It simply means you are not able to call into aid a blameless history.

[9]      The probation officer’s report does not provide you with much assistance.  It refers  to  your  lack  of  insight  and  the  difficulty  or  refusal  to  co-operate  by participating in any discussion about your behaviour and the probation officer recommends, to use her words, “an appropriate deterrent and punitive” sentence. But the report speaks of you being emotional during the interview and I can readily understand that.  You maintained that you did not want to talk about what happened because it depressed you.  The report says you have no health issues, although you have suffered from depression in earlier years.  But you maintained that you did not require counselling.  Your counsel says that you were very upset when seen by the

probation officer and made the comments which you regret and do not adhere to.  I accept that the continued denial, and what you said to the probation officer, arose out of stupidity and emotional responses, because as your counsel says you accept your guilt.

[10]     So far as your rehabilitation and re-integration into society is concerned, you must come to the realisation that you have a propensity for knocking around young children in your care when unable to deal with anger and stress.

[11]     As I have said, you pleaded guilty to manslaughter after being advised by two experienced counsel and the summary of facts records “the accused hit Cherish to the head with sufficient force to cause a subdural haemorrhage, retinal haemorrhages and  death”  and  that  is  agreed.    Of  course,  you  avoided  the  risk  of  a  murder conviction by your plea of guilty to the charge of manslaughter, but the conviction of manslaughter was the proper outcome and entirely justified.

[12]     I need to say something to you and to the community about the approach the Court is required to take in manslaughter cases where children are killed by adults when entrusted to their care.  The circumstances can vary considerably according to the degree of violence, what the time period was over which any abuse may have occurred, whether there was a single episode of cruelty or a brief loss of control, whether a weapon is used and there will be inevitably multiple different aggravating and mitigating circumstances.  So the categories and circumstances are so varied that it is not possible to fix tariffs of what should be appropriate across a wide range of

cases.  At one end of the scale there is the well known case of R v Witika[1] where the

[1] R v Witika [1993] 2 NZLR 424 (CA).

appellants  received  16  years’  imprisonment  for  brutal  ill-treatment,  neglect  and death, of a child aged two.  At the other end of the scale there are cases such as R v Pene[2]  where there were compelling mitigating features and psychiatric evidence of an offender’s depressive illness, so the end sentence was 12 months’ home detention. So, too, at the other end of the scale is the cases such as R v Albury-Thomson[3] where the   Court   of   Appeal   reduced   a   sentence   of   four   years’   imprisonment   for

[2] R v Pene HC Rotorua CRI-2009-063-420, 22 April 2010.

[3] R v Albury-Thomson (1998) 16 CRNZ 79 (CA).

manslaughter of an autistic 17 year old girl and reduced it to 18 months’ imprisonment because the Court then said, the circumstances were exceptional and unlikely to reoccur and the element of general deterrence carried less weight in those circumstances.  But the element of general deterrence carries significant weight in the sentencing exercise in the circumstances of your case and in similar circumstances.

[13]     Adults in New Zealand must understand that violence and force inflicted upon children who depend upon them for their care and support must be met with stern  penalties.    General  deterrence  to  deter  others  from  inflicting  violence  on children  is  an  important  factor  in  sentencing  for  manslaughter  in  such  cases. Violence inflicted upon a child is said to be worse than that directed at another adult. The Court of Appeal in R v Leuta[4] is one of the leading judgments for manslaughter involving violence and force against a child.  It may have been eight years ago but the remarks are still pertinent and Gault J in delivering the majority of the Court said:[5]

[4] R v Leuta [2002] 1 NZLR 215 (CA).

[5] At [77].

Defencelessness and vulnerability are significant features, as is abuse of a position of power and responsibility.   The fragility of young children, particularly infants, is frequently referred to, and too often overlooked.  The lethal  consequences  of  shaking  and  striking  babies  is  often  enough publicised. There can be little reduction in criminality these days for a claim that the danger was not realised.

The Court of Appeal went on to say:[6]

[6] At [80].

Of course child homicides often occur in complex relational and domestic situations.  They bear upon the offender frequently to evoke sympathy and mitigate the offending.  They are to be taken into account for sentencing. But they [that is the complex domestic situations] should not cloud the essential fact that the violent, cruel and brutal treatment of a defenceless and vulnerable child, to whom there are duties of trust and responsibility, constitutes conduct of grave criminality and, where death ensues, the sentencing task is in respect of a very serious crime.

[14]     There are three categories of abuse which can be identified where a child dies following weeks or even months of abuse:

•    Firstly, the single but serious episode of cruelty through rage;

•   Secondly, the brief loss of control through anger, which causes injury far more severe than might have been contemplated.  You do not fall into the category of Witika’s case which involved weeks of torture, but examples of a single but serious episode of cruelty can be seen in R v Waterhouse[7] where an appellant lost his temper and punched a three year old child four times in the stomach and was sentenced to eight years’ imprisonment.  In R v Broadhurst[8]  a two year old was violently shaken and slammed with considerable force into a hard surface and a sentence of seven years six months’ imprisonment was upheld and the Court of Appeal said that case could not be described as involving a single brief loss of control, but a fatal attack which had been preceded by at least one significant event of violence against a young child.

[7] R v Waterhouse CA33/04, 13 May 2004.

[8] R v Broadhurst [2008] NZCA 454.

•   The third type of example is that which counsel have referred me to and that is to be seen in R v Robinson[9] which has some similarities to your case, although in Robinson the plea was always not guilty and the guilty verdict came after the jury’s deliberation.   There, a 14 months old girl was left in the accused’s home to be cared for over approximately six weeks.  She was found one evening with head injuries, dilated pupils, a locked   jaw,   a   Glasgo-Coma   score   of   three,   suffered   a   subdural

[9] R v Robinson HC Rotorua CRI-2007-063-2028, 27 November 2009.

haemorrhage and a retinal haemorrhage and did not recover and died when life support was withdrawn.  The injuries were remarkably similar to that which Cherish sustained.   The sentencing Judge described the offending  as  a  one-off  incident  and  albeit  involving  considerable violence, but it had an aggravating feature that the victim was placed in the offender’s home for care and protection.  The Judge took a starting point of seven and a half years, noted that the accused had relationship and stress-related difficulties and some psychiatric issues but did have no

previous  convictions  and  an  end  sentence  of  six  years  six  months resulted.

[15]     There are other examples which I have considered involving the “brief loss of control” cases and they including R v Kershaw[10]  and R v Gordon,[11]  both of which had substantial mitigating factors where the culpability of the offenders were significantly reduced.

[10] R v Kershaw HC Palmerston North CRI-2003-054-2237, 29 October 2003.

[11] R v Gordon HC Palmerston North CRI-2002-054-841155, 18 March 2004; CA276/04, 16 December 2004.

[16]     I have concluded you fall into the general category of an angry loss of control, but having had a disposition or propensity to strike at children in your care. This was because of your inadequate parental abilities and because of anger and frustration arising out of the stresses imposed upon you in caring for two young children.  Yours is not a case of long-running cruelty towards this child, or to her cousin, but you were too frequently free with your fists and hands when frustrated and angry and unable to cope.  As I have said, it is a critical function of the Courts to protect defenceless children and a special responsibility is placed on those who are fit and able to care for the vulnerable and this child was especially vulnerable.  You were in a position equivalent of a mother or caregiver and Cherish was in no way a difficult  or  intractable  child.   She  was  entitled to look to  you  for  comfort  and protection.  I have to consider the nature of the act which caused her death.  Whether or not it was a single blow to the head, or more, it could only have been delivered with extreme force in order to cause the brain and eye injuries that were so obvious on medical assessment and I am mindful of the medical evidence that was given as to the degree of force that was required to inflict those injuries.

[17]     Parliament has required that Judges impose significant sentences for this type of offending.   Offending against children that involves violence is something that Parliament and the community demand deterrent sentences and that is apparent through the enactment of s 9A of the Sentencing Act 2002 in December 2008, which says that if a Court is sentencing an offender in a case involving violence against, or

neglect of a child under the age of 14 years, the Court must take into account aggravating factors to the extent they are applicable to the case, namely:

•   the defencelessness of the victim;

•   any serious or long-term physical or psychological effect on the victim;

•    the magnitude of the breach of any relationship of trust between the victim and the offender;

•   [not relevant];  and

•   the deliberate concealment of the offending from authorities.

There are additional factors that a sentencing Judge is required to take into account, which normally apply under the principles of sentencing otherwise in the Sentencing Act.  Somewhat prophetically, that law was passed on 17 December 2008, precisely two months before the date upon which you killed this child.

[18]     The intention of Parliament when that law was passed is apparent from some of the transcript in Hansard where the Minister of Justice said:

All the new factors are designed to make the sentence more severe than would otherwise be the case, because they all reflect the fact that offending against  children  should  involve  a  high  degree  of  blameworthiness, and sentencing needs to reflect that.

Other members of the House spoke in similar terms, saying:

... this legislation ... does send a very clear message to the community as to activity that we abhor and are determined to confront, it does send a clear signal to intending offenders, and, ... a very clear signal to the Judges ... in the exercise of their discretion in imposing sentences ... .

[19]     The Member for Wanganui in your Constituency said, two months before you killed this child:

... the abhorrence of Parliament towards child abuse, child neglect, etc, will be reflected in a sentence that will probably be more severe than would have been the case.

[20]     As a sentencing Judge I have to apply the law that Parliament provides and to heed its direction.

[21]     In assessing your culpability from the point of a starting point I must consider the aggravating features of the offending.  Of course it is aggravating the small infant barely three years old was inherently vulnerable and fragile.  That is why she died. There was evidence you had struck the child previously on the head five days earlier, and although this was not, as I have said a repeated pattern of brutality, nevertheless, it was  an  assault,  being  a  wrongful  and angry  response  to  a  defenceless  child. Clearly, there were times of tension brought about by outside actions not those of Cherish, and your striking of her earlier was not causative of any long-term injury. But those acts towards Cherish and the little boy were indicative of your inability to control anger, frustration and your feelings.   The children could not possibly understand this and Cherish, I have no doubt, was left submissive, bewildered and frightened.  Obviously, she sustained some bruising from other events over the two weeks involving some conflict with her cousin and the inevitable falls and tumbles and scraps that occur in young children when they are playing, but none of this was particularly untoward and had no bearing upon her death.

[22]     So it is an aggravating feature that you earlier displayed a propensity to inflict some form of violence or force upon the two children in your care.  There are not other aggravating features however which are sometimes present, namely the use of a weapon or constant cruelty over a significant period.  Nor do I think there is an aggravating feature of delaying or refusing to seek treatment.   You panicked and endeavoured to help Cherish as much as you could, but once the enormity of the situation hit you you sought help.  But it was always going to be too late.  In line with Robinson I think the appropriate starting point is a term of seven and a half years’ imprisonment.  I do not think there are mitigating features in relation to the offending which require any discount.

[23]   I must now turn in the sentencing exercise to consider mitigating and aggravating features that are personal to you.  I have material that illustrates some personality and emotional limitations, which contributed to your inability to cope with the stresses of being essentially, a middle aged parent having to do the best for

two  young  children.     That  material  illustrates  that  you  had  a  dysfunctional upbringing in life marked by violence, little emotional support or guidance, and you have some personality and emotional and intellectual difficulties which contributed to your inability to handle stress.   I do not underestimate the difficulties that you faced given your limited parenting skills and your case is to be recognised as a tragic one in that caring for these youngsters did impose a strain upon you, just as it imposes strains upon parents as well as grandparents.  But what you did was in grave contravention of the obligations of a caring grandmother and inexcusable.

[24]     It  is  mitigating  that  you  were  a  well-meaning  grandmother,  but  quite inadequate in caring for children and unable to manage the young children or your own temperament because of personality limitations.  But you nevertheless had the propensity to use your fists and hands, which made it quite incompatible for your caring for the children.   It is mitigating that you pleaded guilty eventually, but it could not possibly be said to be at the earliest opportunity.   You did not offer to plead guilty to manslaughter at any earlier stage and maintained a constant denial that you had anything to do with inflicting injuries upon the child.  So a factor that troubles me is the sort of discount you might receive for having pleaded guilty.  It is usually fixed on the basis of an acknowledgement of offending, remorse and contrition.   In your case it is very limited of course, because you took refuge in silence as well as active denial for a long period and the active attempt to blame your grandson was lamentable.

[25]     I propose to give you a discount or concession for having pleaded guilty so as to spare the community the cost and time of the continuing trial and to recognise, I suppose, that despite your stance you have accepted guilt as your counsel now says. But a concession for guilty plea cannot be in the region of a full one-third discount as discussed in R v Hessell[12] because, as I have said, you maintained not only innocence but an active claim for many months.  I accept that you did your best in caring for Cherish and I am aware of the evidence that you fed, nourished and clothed her, and generally provided physical and practical support.  But you were not able to provide her with emotional and psychological support, or the safety that she needed.   It is

[12] R v Hessell [2009] NZCA 450.

sadly the case that people who are fond of, and love others in their care and with whom they live, sometimes inflict violence to the extent that that person or child loses his or her life and it is regrettably not unknown, that people kill by a wrongful act those whom they care for.  You fall into that category.  It is implicit in the crime of manslaughter that an offender does not mean or intend to cause death.  But as I have  said,  violence  inflicted  upon  young  children  in  a  person’s  care  must  be prevented in a civilised society and deterrent sentences are required.   Adults must keep their hands to themselves and not abuse the vulnerable, who through their age cannot escape or withdraw from the environment, or resist force that is applied.

[26]     I give you credit as mitigating features for your late guilty plea and the difficulties you experienced in trying to care for two children and to your personality and emotional limitations, but add they do not comprise psychiatric compromise.  As I have said, I do not take your previous convictions into account as aggravating features, but you simply have an absence of mitigating features for a blameless life.

[27]     As  I  have  said,  an  aggravating  personal  factor  was  the  lamentable endeavouring to blame Cherish’s cousin, then barely three years old, for causing in part the injuries which killed the child.   The conjuring up and the prolonged commitment to the false story did not serve you well.  Initially you acted out of panic and self-preservation but that excuse was proffered not only shortly after the event but about a week later when you gave a police interview and was a cynical attempt to avoid responsibility.

[28]     The  victim  impact  reports  not  surprisingly  make  extremely  distressing reading.  You claim to want to make peace with your daughter, the mother of the dead child.  Forgiveness will come, but only when there are expressions of contrition and remorse, and contrition has to occur before forgiveness can follow.

[29]     From  the  starting  point  of  seven  and  a  half  years’  imprisonment  I  am prepared to allow you a concession which reflects your guilty plea as well as the mitigating factors personal to you.  Sentencing is not a mathematical exercise but the concession  equates  with  approximately  22½  per  cent.    It  is  the  end  result  that matters.  It is a significant concession and you need to count yourself lucky it is not

much less.   It reflects the guilty plea which came very late plus the mitigating personal matters.  But I regard the end point as the proper sentence for your crime and that end point being five years nine months’ imprisonment.  Accordingly, on the crime of manslaughter you are sentenced to imprisonment for a term of five years nine months.

[30]     You have outstanding fines of $2,447, which accrued between 2002 and 2006 for a variety of offences.  It is pointless those fines remaining on the record and so they are remitted.

J W Gendall J

Solicitors:

Crown Solicitor, Wanganui
C P Brosnahan, Wanganui for Prisoner