R v Taulapapa
[2018] NZHC 834
•27 April 2018
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF
WITNESSES/VICTIMS/CONNECTED PERSONS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-004-12360
[2018] NZHC 834
THE QUEEN v
SYDNEE SHAUNNA TAULAPAPA
Hearing: 27 April 2018 Appearances:
K Lummis for the Crown
A Cresswell for Ms Taulapapa
Sentencing:
27 April 2018
SENTENCE OF WOODHOUSE J
Solicitors:
Ms K Lummis, Meredith Connell, Office of the Crown Solicitor, Auckland Ms A Cresswell, Barrister, Auckland
R v TAULAPAPA [2018] NZHC 834 [27 April 2018]
Introduction
[1] Ms Taulapapa, you may remain seated while I explain the sentence I am going to impose.
[2] You appear for sentence, of course, having pleaded guilty to charges of kidnapping and burglary.
[3]I need to explain the sentence not just to you, but also to the parents of the baby
– the victim – and to the community. For that reason I need to summarise things that you already know. I also need to cover a reasonably complex factual background and considerable diversity in the submissions on your behalf and those of the Crown, and this will take a bit of time.
The relevant facts
[4] Firstly, the facts – and I provide only an outline – and this is taken from the agreed summary of facts. It is the agreed summary of facts worked out between counsel to which you pleaded guilty.
[5] You were jointly charged with Nadene Manukau-Togiavalu with the kidnapping and burglary. You and Ms Manukau-Togiavalu are related – your parents are cousins. Ms Manukau-Togiavalu faces other charges and is being separately dealt with in the District Court. In relation to the charges, Ms Manukau-Togiavalu is undoubtedly the principal offender. I do not use that in a legal sense. She manipulated everything that occurred and persuaded you. She got involved in all of this, and brought you into it, for her own purposes.
[6] In December 2016 Ms Manukau-Togiavalu falsely claimed to family and friends that she was pregnant. The reasons for that are not of concern in the sentencing of you. She maintained this pretence through to August 2017, when the offences were committed.
[7] In May 2017 she applied online for a job as a nanny. You were then living in Australia. Two references were provided, one from another cousin and one, on the
face of it, from you. Ms Manukau-Togiavalu had sought your permission to use your email account. She sent an email on your account, purporting to be from you, as a reference. In the agreed summary of facts you acknowledged that you provided your email account details for this purpose, but what is not clear is what you understood precisely Ms Manukau-Togiavalu was doing. But it must be acknowledged that you realised that what she was doing was not straightforward. I must say, in relation to this matter that I do consider it is far removed from the matters of central importance in this case.
[8] Ms Manukau-Togiavalu successfully deceived the nanny agency that she had experience. In July 2017 she accepted a position to assist a mother and father to look after a baby due in August 2017. And, of course, we know in this Court – not to be published – that it was the parents of V – Mr and Mrs E. In August 2017 Ms Manukau- Togiavalu received numerous gifts from a baby shower arranged by her family and friends. And that is important in relation to your response to what she told you. Her room, at her grandparents’ home where she lived, was filled with baby products and a cot.
[9] The baby was born in late July 2017. Ms Manukau-Togiavalu was required to stay two to three times a week overnight at the parents’ home to assist with the care of the baby once the baby got back from the hospital.
The kidnapping, with the burglary which was part of the overall plan
[10] You arrived in New Zealand from Australia on 20 July 2017. This was for a family occasion. There is no suggestion at all that you came to New Zealand intending to provide assistance to Ms Manukau-Togiavalu. You had gone to Australia – and I am not given the date, but I apprehend possibly the year before – with your boyfriend because he had a job there and you were both living and, to an extent, settled in Australia. Anyway, you got to New Zealand in July. Sometime shortly after 3 or 4 August 2017, your cousin spoke to you – Ms Manukau-Togiavalu – and led you to believe that she had given birth on about 3 or 4 August, that she had allowed her child to be adopted for money, but she was regretting the decision. She asked if you would help to get her baby back. You agreed to help. I will come back to what you have said
as to the reasons. And the reasons – the motivation – is one of the central matters that I have to take into account.
[11] Ms Manukau-Togiavalu was working as the nanny in the complainants’ home overnight from the evening of 8 August. After she had gone to work you went to her grandparents’ home. You told them, on your cousin’s instructions, you had dropped Ms Manukau-Togiavalu at hospital to have her baby and you had come to collect some things. There is no indication in the summary of facts that the grandparents raised doubts with you or did anything to deter you from what was going on.
[12] Later that night you drove to a place near to the complainants’ home and waited. Around 6:45 in the morning of 9 August Ms Manukau-Togiavalu let you into the complainants’ home so that you could take the baby. As part of the plan – which I am satisfied was devised by Ms Manukau-Togiavalu, but which you went along with and, of course, voluntarily – as part of that plan, you were wearing a homemade balaclava. This apparently was to reinforce a story to be given by Ms Manukau- Togiavalu to the parents that their baby had been taken by an intruder. You left with the baby together with some items of property, including the mother’s handbag. The purpose of this theft was to try and support a story that a stranger was responsible for abducting the child. You drove away with the baby.
[13] Police contacted you on your mobile phone at around 9:35 am – that is to say, about 2 ½ hours later. You initially said that you were shocked by the news of the kidnapping. There were further calls until you told Police just after 1:00 pm that you had the baby. The baby was recovered 10 minutes or so later and she was unharmed.
[14] In a statement to Police you said you had been told by your cousin that she had received around $19,000 or $20,000 for the adoption, and that she had offered you
$1,000 of this in exchange for your assistance. Your statement to Police was that you did not intend to take the money. You volunteered the information that you had been offered it. You stated that you had no intention of taking it. You said that you believed that the baby was your cousin’s biological child. Through your counsel, Ms Cresswell, you say you agreed to do what you did out of combination of willingness to help your cousin in distress, naivety, loyalty, and fear of your cousin. I will come back to that.
Victim impact statements
[15] We have heard Mr E read his victim impact statement, and that of his wife, and I commend his courage in doing that in this Court before all of these people. There is no need for me to record what has been stated by him in terms of the extreme emotional impact on him and his wife. And I will come back to that in terms of aggravating matters.
Starting point
[16]I come to what is called a starting point.
[17] Ms Cresswell has submitted on your behalf that you should be discharged without conviction. That is firmly opposed by the Crown. Before considering that application, it is appropriate to assess what your sentence would be if there is no discharge without conviction. The first thing to do for that purpose is to determine what is called a starting point. The starting point is an assessment of the appropriate sentence having regard to the seriousness of your offending – the gravity of the offence itself. Factors personal to you which might increase or decrease the sentence are taken into account after that.
[18] I pause at this point to make an observation which is relevant to the final matter I will consider, which is the application for discharge without conviction. In assessing a sentence, the process breaks it down into these separate elements: the gravity of the offence, and any aggravating or mitigating factors of a personal matter – and they are two separate matters. However, I will come back to this and I will repeat it. In assessing the gravity of the offence – and that is the expression used in s 107 of the Sentencing Act 2002 – all of these matters are taken into account.
[19] Going back to the question of a starting point in a standard assessment of a sentence. The Crown submits that the starting point should be assessed in relation to the kidnapping of the baby and that the other offence of burglary should be treated as an aggravating feature of the kidnapping because it is an essential part of the kidnapping. I agree with that approach.
[20] The Crown submits that the starting point should be around 3 years imprisonment. Ms Cresswell has submitted on your behalf that the starting point should be less than 9 months imprisonment – and perhaps 6 months imprisonment. That submission is founded in substantial measure on another case involving a defendant named Manutui.1 Both counsel have referred to that case. The wide difference between your position and the Crown’s position arises from evidence of, and Ms Cresswell’s submissions relating to, factors which mitigate your culpability; that is to say, which reduce the gravity of the offence assessing it in the terms I am now emphasising I am assessing it for a conventional assessment of a sentence. And those factors, if there are any, need to be weighed against aggravating factors.
Aggravating factors
[21] Coming first to aggravating factors. Ms Lummis, for the Crown, refers to what she submits are seven aggravating factors. Those factors, Ms Cresswell’s response, and my assessment, are as follows:
(a)First, premeditation. Possibly a better word, or a more encompassing word, is the extent of planning. The Crown submits there was premeditation “to a high degree”. There was premeditation to a high degree. And just coming to what I have already said: what this refers to in practical terms is the extent of the planning in the period over which it occurred and the detail of the planning. Ms Cresswell submits that the level of premeditation, or planning, needs to be seen in the light of the fact that you were involved in the planning under a false understanding of the true parentage of the baby. My assessment is that the premeditation and careful planning was premeditation and planning by Ms Manukau-Togiavalu – and the last part of that is the part you went along with, and in which, obviously, you were involved. At one level it can be said that there was premeditation by you. That was in the period from just after 4 August through to the kidnapping on the morning of 9 August. It was, however, the culmination of plans that
1 R v Manutui [2015] NZHC 2880 (sentence) and R v Manutui [2015] NZHC 2446 (sentence indication forming part of the sentence.
Ms Manukau-Togiavalu had put in train when she first pretended to family and friends the year before that she was pregnant. I am satisfied from the information that has been provided for this sentencing that the plans you went along with were plans devised by your cousin. And it is quite clear from the length of time over which she carried all this out that she is, in my judgment for the purposes of sentencing you, very manipulative and very determined. And that is relevant to mitigating factors in your case in respect of the gravity of the offence.
(b)The second aggravating factor mentioned by the Crown is the length of detention of the baby. The Crown acknowledges the length of time the baby was with you was “moderate” and the baby was recovered unharmed. Against this Ms Lummis points to the evidence that you and Ms Manukau-Togiavalu had intended permanently to deprive the parents of their child. Ms Cresswell’s principal submission on matters of this nature is that it was never your intention to take the baby for yourself but to return it to the person you understood to be the biological mother, your cousin. That submission is not made to seek to diminish the gravity of the impact on the parents but to put the aggravating factor of your intention in the kidnapping into perspective. In my judgment that only goes a limited distance to reduce the gravity. You were still taking the child from its adoptive parents.
(c)The third matter is the vulnerability of the baby. Ms Cresswell understandably accepted that the baby was highly vulnerable.
(d)Commerciality is the fourth matter. The Crown refers to it. The Crown accepts, as it was put, that your primary motivation was to assist your cousin in kidnapping a child you believed your cousin had just given birth to. The Crown, however, refers to your evidence in the Police interview that your cousin had offered you $1,000 for your assistance but you told the Police that you would not have taken the money. There is no evidence to suggest that your statement to the Police about your intentions was false. I am satisfied that you were not motivated by the
thoughts of making money. I do come to what your motives were, in my judgment, in a moment.
(e)The fifth aggravating factor is home invasion and breach of trust. The Crown submits that you, with your cousin, were involved in taking advantage of the trust the parents put in your cousin. You, of course, went into their home when they would be expected to be asleep. Ms Cresswell accepts that home invasion by you is an aggravating factor – and it is. I do not consider that there is further aggravation by breach of trust by you.
(f)The next matter is extent of the harm. The Crown submits that significant emotional harm was caused by the offending. Understandably, that is not contested by Ms Cresswell on your behalf. The Crown’s submissions included the following – and I quote:
It is difficult to conceive of a more traumatising experience for the parents of a newborn baby than having it abducted from their home in the middle of the night.
I agree. In this context the Crown also acknowledges, however, that there was no malicious intent on your part in kidnapping the baby, and I agree with that.
(g)The final aggravating matter referred to is the impact on the victims – and, of course, I am referring to the parents in particular. The Crown referred to victim impact as an aggravating factor separate from the extent of the harm. This is not a separate aggravating factor. The harm was the emotional harm to the family which I have already referred to and outlined fully in the two victim impact statements we have heard from Mr E.
Mitigating factors of the offending
[22]The next matter concerns mitigating factors of the offending.
[23] Ms Cresswell made forceful submissions that the gravity of your offending is reduced for several reasons. Some of the matters she referred to might be taken into account as personal factors to be considered at the next stage, rather than factors going to the gravity of the offending. I will deal with those in a moment, when considering factors of a personal nature which reduce the starting point. Ms Cresswell’s submissions may perhaps be summarised as making three main points – and I am endeavouring to summarise full submissions. These are as follows:
(a)First, you committed these offences because you were misled by your cousin as to why she wanted you to help to take the baby. You genuinely believed it was her own biological child.
(b)Second, that you did this out of a combination of willingness to help your cousin, who you believed to be in distress, naivety, loyalty and fear. I am satisfied that there is evidence in respect of these matters and I will repeat them – there are four: a combination of willingness to help your cousin who you believed to be in distress, naivety, loyalty and fear.
(c)The third factor is that you are Māori and, as Ms Cresswell put it, those brought up in Māori culture, as you have been, are – and I quote – “almost pre-programmed to assist family”. And there is direct evidence in respect of Māori culture and tikanga in that regard, which I will come to.
[24] I accept these submissions. The first two that I have simply summarised, are borne out by the agreed statement of facts in my judgment, and inferences that I am able to draw from those facts, and other evidence I have received, and the pre-sentence report.
[25] The relevance of your culture or cultural background requires some further comment. Section 8(i) of the Sentencing Act 2002 is as follows:
In sentencing or otherwise dealing with an offender the court—
… must take into account the offender’s personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose.
[26] All of the information about your offending, and about you personally, satisfies me that an important purpose of the sentence to be imposed on you, or other means of dealing with you, must have a rehabilitative purpose. That cannot conflict with other important matters of sentencing, and I am not suggesting that.
[27] The Sentencing Act makes further provision to assist the Court in relation to the principle stated in s 8(i). Section 27, in summary, states that an offender for sentencing may request the Court to hear any person or persons called by the offender to speak on the personal, family, whanau, community, and cultural background of the offender, ways in which that background may have related to the commission of the offence, and other related matters. The Court must receive this evidence unless the Court is satisfied that there is some special reason that makes it unnecessary or inappropriate. There is no reason which makes the evidence that has been put before me unnecessary or inappropriate.
[28] The principal evidence bearing on the matters I have summarised is provided in two affidavits from Mr Tyrone Raumati. Mr Raumati is the chair of Oruawharo Marae, and an elected member of Te Runanga O Ngāti Whatua. He has provided two affidavits. I do not intend to seek to summarise all of what he has said, but I will read some paragraphs towards the end of the second affidavit. I preface this to say that it is in fact Mr Raumati who first used the expression used by Ms Cresswell about being pre-programmed to assist family – and that is a pre-programming I have to emphasise in a Māori cultural context. Mr Raumati says:
If tikanga are followed correctly, they do not encourage criminal offending of the Pākehā legal system in any way.
I think it is important to understand tikanga to get an idea of the intrinsic pressures that Sydnee likely felt leading up to and during the offending.
And I interpolate at this point, and in response to a submission from Ms Lummis, that there is evidence to support a conclusion that you felt the pressures of the sort that Mr Raumati is now speaking. I go back to his affidavit:
From a cultural perspective, it is impossible, as Māori, not to empathise with the sorrow and heartbreak likely experienced by Sydnee [that is to say, you] when she believed that her whanaunga pēpi [that is, baby relation] was to live and grow outside of the knowledge and protection of the whānau.
For a Māori person, the idea of allowing a wanted baby to be adopted within a Pākehā construct and lost, rather than a traditional whāngai method, could be seen as a crime in and of itself.
Sydnee’s bowing to the pressure to assist her whanaunga is more than understandable, from a Māori perspective.
The lack of maturity, lack of thinking and rashness taken to rectify the apparent situation could easily have occurred from a misguided application of tikanga.
[29] Your cultural background does not excuse your conduct. And it was not referred to for that purpose by Mr Raumati, nor is it referred to for that purpose by me.
[30] Courts on sentencing regularly seek to assess the reasons for the conduct of an offender in order to assess the extent of the offender’s culpability. That is the relevance of this information. And it is information, as I have said, supported by some other evidence.
[31] These matters are not the only matters that I am bound to take into account under s 8. Section 8 lists 10 principles, and I have taken account of all of them to the extent that they are applicable. My task is then to weigh the relative weight of each which has relevance. The same applies, in general terms, to s 7 of the Sentencing Act which deals with the purposes of sentencing. In broad terms, purposes may be called punitive purposes in one group and rehabilitative purposes in another, although I do emphasise that that is a broad statement. I have taken account of all relevant principles and purposes.
[32] I have also been referred to a number of other cases involving kidnapping of babies or children. I do not intend to discuss those cases. I will simply note the names in a footnote in the transcript of this sentencing.2 I have taken account of those cases to the extent I consider they assist me.
2 R v Lula HC Auckland S47/93, 27 April 1993; R v Narayan [2012] NZHC 2823; R v Marsh [2015] NZDC 1898; R v Manutui, above n 1; R v Skelton HC Auckland CRI-2007-019-6530, 19 December 2008; and Houpapa v R [2016] NZCA 206.
Conclusion on starting point
[33] My conclusion, based on what I have discussed so far – and I have been considering the starting point – is that it should not be more than 12 to 18 months imprisonment, if imprisonment was otherwise the appropriate sentence at the end of this process – and I will say now that I do not consider it to be appropriate.
Personal factors
[34] The next stage in the assessment of a sentence is to take account of factors personal to you that might increase or decrease the starting point, as I said earlier. Perhaps in one sense some of the matters I have just referred to – mitigating factors of the offending – might be regarded as personal to you, but overall those ones have most relevance to an assessment of the gravity of your offending which I have just dealt with.
[35] There are no personal factors justifying an increase of the starting point, and the Crown has not suggested otherwise. You were 18 years old when you committed these offences. You have no previous convictions. As I understand it – I think this is correct – you completed five years of high school. Your mother’s affidavit indicates that you were not an A level academic student, but you achieved well in other areas, and particularly with sport and team games.
[36] The information available to me is that, until your cousin asked for your help, you had been getting on constructively with your life, and by then, as I have said, had moved to Australia with your boyfriend after he obtained employment in Australia.
[37] The fact that you have no previous convictions, and the constructive life that you led up until August last year, are mitigating factors of some consequence. So too is the fact that, when you committed these offences, you were 18 years old. That has been acknowledged by the Crown quite properly.
[38] Affidavit evidence and references provided in your support confirm Ms Cresswell’s submissions about your personality – that you are naïve and easily led. On matters of that nature, I will quote some observations – just a few – in the pre-
sentence report. This, of course, comes from a person quite independent from you and from a person trained to make assessments of this nature. The probation officer said, amongst other things, in a report that is reasonably comprehensive – and I quote:
Key factors identified as contributing to Miss Toulapapa’s [sic] current offending are her offending supportive associates namely her co-offender, and her attitude presented as her lack of problem solving skills and consequential thinking leading to her decision made to participate in the criminal activities.
Part of that actually captures an important aspect of this: a lack of problem solving skills. The next quote is this:
She indicated that she felt obliged to “support” her cousin despite having doubts of what they were about to do.
And then the probation officer said:
Although she was aware what she was about to do was wrong, she “was too scared to say no … or tell other (family members)”.
And finally, and I quote:
It became clear that her poor problem solving skill was the main contributing factor. Her mother … expressed concern for her daughter’s “lacking of confidence … tending to please [other] people around her”.
And that is supported by direct evidence from your mother.
[39] Up until the first call to you from a police officer, at around 9:30 am on 9 August, you had allowed yourself to help your cousin in spite of the fact that you knew at the time – as indicted by the guilty pleas – that what you were doing was wrong. Once you were contacted by Police in my judgment it did not take particularly long for you to assess for yourself how serious and wrong it was and to then confirm to Police that the baby was with you and where you and the baby could be found. The delay, of course, was a dreadful delay for the parents – and I am not suggesting anything to the contrary. I am here focussing on something quite different, and that is your behaviour.
[40] The pre-sentence report and the other information makes clear that you had immediate remorse for what you had done and immediate realisation of the seriousness
of what you had done. That is not diminished; it has increased. I am satisfied that you are deeply remorseful of what you did and that you do have a complete understanding of the extraordinary emotional harm you inflicted on the parents.
[41] You advised that you were willing to participate in a restorative justice process with the parents. They advised they did not wish to participate and the process has therefore gone no further, and you accept that and understand their response. Your willingness to take part in such a process is nevertheless another mitigating factor. You have also offered to pay reparation of $2,000 to the complainants for the emotional harm you have caused. The evidence suggests that this is not an insubstantial sum for you and, you have made clear, your family to pay. You have also provided me with a letter of apology that you wish to provide to the family. I apprehend that you do not want to do that unless you have their permission. But you have provided it to me. And you are currently doing voluntary work at St Vincent De Paul’s hospice – or at one of their hospices – to attempt to make some amends to the community.
[42] There is no doubt, Ms Taulapapa, that you have a family which is not only supportive but which is well able to influence you in serious ways against ever repeating what you have done and ensuring that it will never happen again.
[43] Since you were arrested – and this is a much lesser matter but it needs to be taken into account – you have been on restrictive bail and you have not been able to obtain any employment. And that is since August 2017.
[44] These various considerations in my judgment substantially reduce the starting point. This is not a case where it is necessary for me to put any number on that. And I will come to the end result.
Guilty pleas
[45] The remaining matter is the guilty plea. You are entitled to a further reduction of the sentence that would otherwise be imposed, and if it is a sentence measurable in terms of time. The Crown submitted that the reduction should be 20 per cent and Ms Cresswell 25 per cent. Having regard to the submissions I have received in writing
and the further submissions received today, in assessing it overall, I consider that a proper allowance would be 20 per cent. As acknowledged by Ms Lummis, in the scheme of things, this is unlikely – or does not make any material difference.
[46] My conclusion on a sentence overall is that it should be – if there is to be a sentence and not discharge without conviction – a community based sentence. It would be community detention for the maximum period of 6 months and an order that you undertake the maximum period of community work, which is 400 hours. And those, in themselves, are not insignificant sentences when assessed against all the other matters I have referred to.
Discharge without conviction
[47] I come now to your application for an order that you be discharged without conviction.
[48] I cannot make such an order unless I am satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. That is what s 107 of the Sentencing Act says.
Direct and indirect consequences of conviction
[49]First, the direct and indirect consequences of a conviction.
[50] I have received comprehensive written submissions for you and for the Crown. I do not intend to summarise all of these submissions but they have, of course, with the other matters, been taken into account.
[51] You have referred to difficulties you will face in obtaining employment. There is specific reference to thoughts you have had – and it appears since you were at school
– of joining the Army. You are athletic and the thoughts are, for example, that you might get a position as a fitness trainer. Given the qualities you demonstrated at school, it is possible that you would be well suited to some position in the Army like that, or some other position. The Crown responds to this by pointing out that there are no definite plans at the present time and that the evidence of Army recruitment policies
does not indicate that a conviction would necessarily mean that you would be excluded.
[52] You also point to difficulties you may have in travelling out of New Zealand. Again, the specific reference you make is return to Australia. The Crown’s response is broadly similar – you would not definitely be excluded from re-entering Australia.
[53] I consider that this question – direct and indirect consequences – must, in your case, be assessed in a broad way and in particular – and this is central – having regard to the stage in life you have reached and what you have achieved up to this point. It is not an abstract assessment. The assessment to be made should not be an abstract assessment, and I do not consider the assessment I am making is an abstract assessment. Assessment of this question is also not assisted by comparing your case with other cases. They are all different. In my judgment, the consequences of a conviction for you are that your adult life will be permanently blighted in significant ways before it has really started.
[54] It will be blighted because your prospects of obtaining a reasonable level of employment will be materially diminished. Your background, and skills demonstrated at school, while not at a high academic level, do indicate that you have abilities which would suit you for what I call reasonable levels of employment – a reasonably good job. But there is in my judgment a real possibility that you will be rejected for employment – and I emphasise employment in a reasonable job – because of the nature of your convictions. Employers will not be likely to investigate the level of your culpability and make an assessment on that basis, or even take account of the sentence imposed. This is not the way the real world works.
[55] I also consider that your prospects of travelling out of New Zealand will similarly be put at risk. This presently includes a real risk that you will not be able to return to Australia at all. And I express that opinion having regard to the material that has been put before me.
The gravity of your offence
[56] The second matter to consider is the gravity of your offence. It is important to make clear that the gravity of the offence in this context – and I said this at the outset
– means the gravity after assessing all matters relating to the offending and all matters relating to the offender. It therefore requires bringing into account all the matters I have referred to in assessing the starting point, with mitigating as well as aggravating factors, and the personal factors – all of which are mitigating factors, and mitigating factors of substance.
[57] The Crown pointed to particular aspects of the offence. For example, there is a submission as follows – and I quote:
The abduction of a newborn child is clearly very serious offending, including in the present circumstances where the offender was operating under a misapprehension about the identity of the child.
[58] Plainly, abduction of a newborn child is a serious offence – it is serious offending. But the submission is a very general one, even allowing for the reference to a misapprehension about the identity of the child. There is need, and I emphasise, to consider all the circumstances of this particular offence, but also to consider all of the circumstances of the offender. Focus on the circumstances of the offence itself, even if with more detail than is contained in that single submission – and there are numbers of others – does not take account of all of the matters that must be assessed to determine the gravity of this offence.
[59] A broad reference to kidnapping of a child does not take the enquiry very far. Kidnapping has a maximum penalty of 14 years imprisonment. If the focus is initially confined to the facts of the offence itself, there is obviously a major difference in gravity between a case where the starting point for kidnapping a baby is, for example, 12 years imprisonment and a case where the starting point is 12 to 18 months imprisonment. One of the cases referred to by counsel, as I mentioned, resulted in a starting point of 9 months imprisonment for a person who assisted the woman who actually took the newborn baby. And as I mentioned in a brief discussion with Ms Lummis – I think it was Ms Lummis – in that case the father had been told by the nurse in the hospital when he went in with the mother that she was not pregnant.
[60] The Crown submits that you were wilfully blind to the false pregnancy. This amounts to a submission that you should have realised that the baby was not your cousin’s biological child. I do not accept that submission having regard to all of the information that was put before me, and in particular having regard to the agreed statement of facts.
[61] There were further submissions for the Crown pointing to other particular matters, but, as I have said, all matters must be brought into account, including all of the personal mitigating factors.
Are the consequences out of proportion to gravity?
[62] The final question is whether the direct and indirect consequences I have referred to are out of all proportion to the gravity of the offence as I have assessed it.
[63]I consider that they are.
[64] At the risk of over-simplifying all of the matters taken into account by me, and all of the matters that need to be taken into account in this difficult case in relation to you – which is far removed from the case against Ms Manukau-Togiavalu – the central element of my conclusion is this: the gravest aspect of your offence is the significant emotional harm inflicted on the parents of the baby you abducted. It was undoubtedly significant. That cannot be understated. But without in any way seeking to diminish what I have heard, in my judgment that harm is unlikely to endure in the way a conviction of you will endure.
[65] The harm to the parents has continued, but based on both victim impact statements it appears, fortunately, to be diminishing to an extent, and it appears that it is capable of being managed and, perhaps, removed.
[66] One other thing that is apparent from those statements is that the parents are in agreement with my assessment that most of the responsibility for the great harm caused to them – the harm caused to them – were the acts and statements, the deceit to them, of Ms Manukau-Togiavalu.
[67]For all of those reasons, you will be discharged without conviction.
[68] There will be an order that you pay – if the parents wish to accept it – reparation of $2,000.
[69] There will be a further order, which I believe I have jurisdiction to make, that notwithstanding the discharge without conviction, you are to undertake 400 hours of community work of a voluntary nature.
Final sentence
[70]You should now stand for me to formally impose that sentence.
[71] Ms Taulapapa, for both of the offences, kidnapping and burglary, you are discharged without conviction. Those orders are made on the following conditions:
(a)You are to pay, as reparation, a sum of $2,000. This sum is to be paid to the parents of the baby if they wish to accept it. The Crown is to advise the Court and Ms Cresswell within a week whether the parents wish to accept the sum. If not, it is to be paid to a charity suitable to the circumstances of this case, which is a charity concerned with the interests of newborn children or young people. If this eventuality arises counsel are to confer without delay and file a joint memorandum with proposals for an appropriate charity.
(b)You are to undertake 400 hours of voluntary community work and that is to be completed within 6 months from today’s date.
[72] Conviction had been entered on the guilty pleas. Those convictions are vacated together with the first strike warning that was given at the time.
Addendum
[73] Following the sentencing, Ms Taulapapa’s parents advised Mr John Richardson, the High Court criminal manager, that they will monitor progress on the
completion of the community work and report back to the Court, through him, on completion.
Woodhouse J