R v Tiatoa HC Auckland CRI 2009-055-1007

[2010] NZHC 1903

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-055-001007

THE QUEEN

v

JAY TIATOA

DARRA-TAYLOR LEATHERS

Charges:         Failing to provide the necessaries of life

Wilful neglect of child

Plea:               Not Guilty

Appearances: P Hamlin for Crown

M Mason for Prisoner Tiatoa
S Ellis for Prisoner Leathers

Sentenced:     11 October 2010

Failure   to   provide   necessaries   of   life   –   2   years   6   months’
imprisonment;
Wilful neglect of child – 6 months’ imprisonment concurrent

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            M Mason and S Blake, Papakura

S Ellis, Auckland

R V TIATOA AND ANOR HC AK CRI-2009-055-001007  11 October 2010

[1]      Jay Tiatoa and Darra Taylor Leathers, you were both found guilty by a jury of wilfully neglecting a child and failing to provide the necessaries of life.   The maximum sentence for the wilful neglect charge is five years’ imprisonment.  The maximum sentence for the failure to provide the necessaries of life is seven years’ imprisonment.

[2]      Ms  Leathers  your  counsel  requested  an  adjournment  of  the  sentencing process to enable you to explore further possible venues at which a sentence of home detention  might  be  served.    As  you  have  heard  I declined  that  application  for adjournment.  On my review of the file and the relevant authorities for the purposes of  sentence  I  conclude  that  the  circumstances  of  this  case  are  such  that  home detention is not an appropriate sentence for either of you given the serious nature of the offending and the particular circumstances.

[3]      The child victim in this case was born to you Ms Leathers on 27 August

2008.   She is now just over two years old.   Mr Tiatoa although you are not the child’s natural father you have acted in the place of her father from when she was born.

[4]      On Monday 26 January 2009 the child was admitted to Starship Hospital suffering a number of injuries but particularly:

•         acute subdural bleeding;

•         severe global injury to 70 – 80% of her brain;  and

•         four broken ribs on her left hand side.

On examination the medical staff located and observed an earlier head injury caused in an earlier incident.  At the time the child was admitted to hospital she was only five months old.

[5]      The injuries were potentially fatal.   With medical intervention her life was able to be saved.  However, she has been left with a very significant brain injury and damage.  The medical evidence is that she will suffer from permanent brain damage

for the rest of her life.  She also has extremely limited vision.  I make it clear that you are not being sentenced on the basis you caused those injuries, as of course Ms Leathers you were not charged with that and Mr Tiatoa while you were charged with that, you were found not guilty by the jury.  Nevertheless, the extent of the injuries and the physical symptoms that the child showed as a result of those injuries are relevant to the sentence for failing to provide the necessaries of life, which in this case was of course the failure to provide medical attention that she needed.

[6]      It seems from the evidence given at trial that the injuries to her were inflicted on the day or days before her admission to Starship.

[7]      As early as Saturday 24 January 2009 or at the latest, and perhaps more likely, by Sunday 25 January, she was exhibiting symptoms of severe injury.  She was reported to have a vacant, fixed gaze and not to react to movements around her. She had brought up milk and was sweating.  When Mr Phillip Tiatoa, your father, moved his hands in front of her eyes and tried to solicit a response from her there was none.  Your sister Francis Tiatoa, noticed that she was pale and said her eyes were not responding.   The child’s leg was twitching and at times her eyes rolled back.   Over that weekend Mr Tiatoa you were the primary caregiver, but you Ms Leathers  were  also  aware  of  the  child’s  condition.    You  visited  the  home  on occasions and were there by the Sunday afternoon with a friend.

[8]      By the afternoon of the Sunday the child’s eyes were not responding to movement.   Her body, particularly her leg was twitching.   Mr Tiatoa, when you clicked your fingers and waved your hands in front of her face she failed to respond. You gave her a firm squeeze around her chest to provoke a reaction but there was none.   Ms Leathers you told Dr Kelly at about 5.00 p.m. that afternoon, the child looked pale, her eyes had rolled back and she did not look at you or recognise you. Her limbs were flimsy.   You told Mr Tiatoa that something was wrong with her. You both knew or must have known that she had been like that for some time and that she was seriously unwell and needed treatment, but despite those obvious symptoms that she was severely injured or ill and in need of care, you did nothing.

[9]      Ms Leathers you left the Tiatoa home at about 8.30 p.m. and you Mr Tiatoa did nothing for the child but stayed up watching television until the early hours of the morning.  It was only the next morning, at your father’s suggestion, the child was taken to a doctor.

[10]     Before the admission for the serious injuries on 26 January, approximately 10 days earlier, the child had been previously admitted to Middlemore Hospital, on that occasion suffering from dehydration and diarrhoea.

[11]     You had both left the child with a friend for care, saying that you would return the next day and collect her.   Neither of you did that.   In fact you did not return and collect her for a couple of days.  When you did collect her the child had contracted diarrhoea and was ill.   Ms Leathers your friend who had been looking after the child for you told you that she probably needed to see a doctor.  Despite that neither of you did nothing about that for a number of days until the child was ultimately taken to the hospital a number of days later, again after Mr Tiatoa’s father initiated the trip to the hospital.

[12]     That supports the count of wilful neglect.  In addition, however, there were other features of the case which was put to the jury to support the charge of wilful neglect, including:

•your failure to seek medical treatment for the previous head injury that was disclosed when the child was examined on 26 January;  and

•your general actions, in your case Ms Leathers going out and drinking and leaving the child with others rather than caring for her;  and

•Mr Tiatoa by neglecting her and playing on the Playstation while leaving her propped up on a couch or chair on in the care of your brother and other members of the family;  and

•in both your cases by failing to address why the child seemed to have received a number of bruises on her body.

[13]     This  is  a  bad  case  of  neglect  and  particularly  of  failing  to  provide  the necessaries of life by failing to provide medical attention for the child.  In relation to neglect the jury were told they could not return verdicts of guilty of neglect unless they were satisfied you both had a conscious appreciation the neglect was likely to cause unnecessary suffering.  They were also directed that if you didn’t appreciate she needed care and attention because of your own stupidity or ignorance or personal inadequacies then the proper verdict was not guilty.

[14]     In relation to the count of failing to provide the necessaries of life, medical attention, the jury were directed that they had to be satisfied as to a high degree of negligence, in other words gross negligence.

[15]     In finding you guilty of both these counts the jury have found that you had a conscious appreciation the neglect was likely to cause unnecessary suffering and that you were aware of the need for medical attention but showed such disregard for the child as to be appropriately regarded as criminally responsible.

[16]     In  sentencing  you  I  am  required  to  take  into  account  the  purposes  and principles of the Sentencing Act.  The particularly relevant purposes are:

•to  hold  you  accountable  for  the  harm  done  to  the  child  by  your offending;

•to promote in you a sense of responsibility and acknowledgement of that harm;  and

•to denounce your behaviour and to deter you and others from similar offending;

[17]     The relevant principles in particular are:

•         to consider the gravity of the offending, your individual culpability;

•the seriousness of the offending reflected in the maximum penalties for the offences;

•         the desirability of consistency with sentences in other similar cases;

•         the effect on the victim;  and

•the   need   to   consider   the   least   restrictive   outcome   and   your rehabilitation.

[18]     In the present case the effect of the offending on the victim is significant. The   severe   injuries   sustained   by  her   have   led   to   significant   and   lifelong consequences.  She was a normal five month old child who should have been able to look forward to a full and normal life.  She now will not be able to do so.  That is as a direct result of course of the injuries sustained but your neglect of her and failure to obtain medical attention are also significant contributing factors.

[19]     The expert paediatrician, Dr Kelly, was firmly of the view that a delay of hours or longer would have had profound effects on the prospects of the child’s successful recovery and prognosis.  Your failure to provide medical attention for her has affected her long-term prospects.  Her prognosis is, on the evidence, likely to be now much worse than it would have been if you had taken her for treatment as you should have.  Dr Kelly emphasised it was exceedingly important to obtain medical intervention as soon as possible.   The specialists in intensive care operate on a general rule that a single episode of hypoxy (where the child’s oxygen level drops below the desired level) is enough to double the mortality from a head injury and that  injuries  such  as  that  sustained  by the  child  would  be  long-term  and  early intervention was important.  Dr Kelly was of no doubt that the child will be seriously impaired for life.  Her brain is no longer growing at the rate it should and she is at least partly blind.

[20]     Mr Tiatoa your pre-sentence report discloses you are a 21 year old male identifying as Maori through Ngapuhi and Tainui descent.  You are currently living with your father and other family members.   You are unemployed and have over

$8,000 outstanding in fines and enforcement fees.   As discussed with counsel I understand steps have been taken to have those remitted.   If the appropriate paper work can be presented to this Court through the District Court I will deal with that

on the papers.  But at the present, absent that material, I am not in a position to remit the fines today.

[21]     At the time of this offending you were or had been in a relatively long-term, relationship with Ms Leathers.   During that time Ms Leathers had three children. You  thought  you  were  the  father  of  all  three  but  tests  confirmed  you  are  the biological father of only the middle child.  You are not the father of the victim in this case.  Despite that you have acted a father to all three children.  You have no gang affiliations, cultural or community links.  As you are unemployed your routine seems to involve caring for your father, staying at home with your family and playing video games.

[22]     The probation officer notes that you expressed remorse.  But the expression of remorse noted is perhaps more accurately described as regret at the effect on you. You said “I’m not happy about the whole thing ... I miss my family ... when they took my family it tore me apart.”  That sort of response discloses a lack of insight into the true effect of your offending.

[23]     You are assessed at a low risk of reoffending, if you are able to successfully address the behaviour which led to your offending.   The probation officer recommended imprisonment.

[24]     Ms  Leathers  you  are  a  21  year  old,  New  Zealand  Maori  woman  with affiliation  to  Ngapuhi.     You  yourself  were  subjected  to  neglect  during  your childhood.   The probation officers notes that it is only since you have attended a parenting course which put your own poor parenting skills into context that you realised that neglect was not a way of bringing children up.  Although you are not yet 22 years old, you have had five children.  The oldest is in the full-time custody of your aunt.  The three children you had during your relationship with Mr Tiatoa are in the care of their paternal grandmother and you recently gave birth to a fifth child and under a whanau agreement that child is living with a paternal aunty.   You also expressed remorse to the probation officer saying it was hard about what happened to your daughter.  You acknowledge that you would go out partying and leave the child with others but did not at the time view those actions as neglect based on your

own childhood experiences.  You are said to be highly motivated to change.  Your risk assessment at reoffending is noted as medium.   You now have apparently an alternative view and would be assisted by further programmes and intervention. Again the probation officer recommends imprisonment.

[25]     The Crown submit the failure to provide the necessaries of life could be treated as the lead offending and that a start point of up to four years’ imprisonment is appropriate, taking account of the need to also impose a sentence for the charge of ill treatment and totality.

[26]     For you Mr Tiatoa, Ms Mason has submitted that given the not guilty verdicts in relation to the primary injuries there can be no suggestion you knew the child had been physically abused and you were not motivated by self preservation in not taking her for treatment.  She submitted your offending was at the lower end of the scale and  a  start  point  of  between  two  to  three  years’  imprisonment  would  be  an appropriate band and an end sentence of less than two years would be appropriate.

[27]     For you Ms Leathers, Mr Ellis has submitted that an end sentence of in the range of two years or less would be available and argued strongly for home detention or a community sentence.

[28]     It is said for you that your rehabilitation and reintegration is a matter which should carry significant weight given your situation as a mother of children and that no sanction the Court can impose would deter you from the conduct which you now understand to be wrong.

[29]     I have had regard to a number of other cases where sentences have been imposed for convictions of this nature, including:  R v Webster[1];  R v Woodcock[2]; R v Hirchkop & Ash[3];  R v Mahomed[4];  R v N & M[5];  R v Fa’asisila[6].  As counsel properly  observed,  however,  each  case  must  be  dealt  with  on  its  own  facts.

[1] R v Webster HC Auckland CRI-2007-092-013782, 18 February 2009.

[2] R v Woodstock HC Rotorua CRI-2008-019-000783, 30 October 2009.

[3] R v Hirchkop & Ash CA506/05 CA516/05, 6 July 2006.

[4] R v Mahomed [2010] NZCA 419.

[5] R v N & M (HC Auckland CRI-2007-092-016688, 17 September 2009.

[6] R v Fa’asisila HC Auckland CRI-2006-092-001919, 15 June 2007.

Offending of this nature is, as apparent from the cases referred to, regrettably not uncommon in our society.  There is a strong need for deterrence and denunciation.

[30]     The fundamental premise underlying sentencing in this area is that a failure by people in the position of parents to provide properly for children and young babies in particular is serious offending.  Neglect is one thing.  Failure to provide medical attention when the child is severely injured and damaged, as must have been apparent in this case, is another. As the Court of Appeal observed in R v Hirchkop & Ash, the victims are vulnerable and dependent on their parents or people in the position of parents for their very survival.  The victim in this case was a vulnerable five month old baby.  She was entirely dependent on both of you for her welfare and care.

[31]     In R v Hirchkop & Ash the child had died but the appellants were not charged with homicide because it could not be established any action or inaction on their part had caused the death.   The District Court Judge took a start point of three years’ imprisonment and imposed a final sentence of two and a half years.  The Court of Appeal observed that the sentences were appropriate and said if any criticism could be made of them it would be the sentence for one of the offenders was too low.  The appeals against sentence were dismissed.

[32]     I do not accept the submissions made for you Mr Tiatoa that the offending in this case is at the lower end.  Nor do I accept the submission for you Ms Leathers that it would be speculative to try and determine if the delay had any effect on an injury received hours, if not a day before.   The evidence of Dr Kelly was unchallenged on that aspect.

[33]     I do accept the force of the submissions made on your behalf, however, that if you are to have the care of children in the future it will be necessary for you both to gain parenting skills that you do not have or lack at present, but because of the sentence I am going to impose on you that will be a matter for other parties.

[34]     Your failure to obtain early medical intervention in this case was not a one- off.  There were the earlier circumstance of your neglect.  While I accept that your offending in this case cannot be said to be the most serious offending of this nature,

it was still serious offending.  The terrible state of the child was apparent to you both on that Sunday but you did nothing.  I take as a start point, bearing in mind the need for totality, and the other charge of wilful neglect, a sentence of imprisonment of three years.

[35]     I then turn to consider the personal aggravating and mitigating factors.  There are no personal aggravating factors.  In terms of personal mitigation there are limited personal  mitigating  factors.    Mr  Tiatoa,  your  counsel  submitted  you  have  been subject to conditions of bail including reporting which have been onerous.  But I do not consider that your bail conditions were so onerous as to support a discount from an otherwise appropriate sentence.  I do, however, take into account your age of 19 years at the time of the offending and your relative emotional and intellectual immaturity, which are relevant to your culpability.   A further but limited discount can be given for your expressions of remorse.

[36]     Ms Mason also argued that you have a limited criminal history and that examples of good and caring parenting were given during the course of the trial. Given your young age I would not expect a long criminal history.  But you do have convictions.  Given your personal circumstances and lifestyle, I do not accept any credit is available for good character as such.

[37]     Mr Tiatoa please stand.  Taking all of the matters into account in your favour that I am able to I am led to a conclusion that the end sentence must be two years six months’ imprisonment.   You are sentenced to two years and six months’ imprisonment.

[38]     Ms Leathers would you please stand.  In your case there are limited personal mitigating factors as well.  There is your age at the time of the offending and your own very unfortunate background and life experiences.   They again reduce your level of culpability and I take that into account as much as I can.

[39]     Mr Ellis submitted you also do not have a particularly bad criminal history and no similar offending.  You do have other convictions for offending subsequent

to the offending in this case.   That later   offending is not relevant as a personal aggravating factor but there is no possibility of a reduction for good character.

[40]     Taking account of your age and your limited maturity, which again I accept affects your culpability, and your expressions of remorse, I see no reason to distinguish you or your case from that of Mr Tiatoa.  The end sentence for you is

also two years six months’ imprisonment.  Stand down.

Venning J

Addendum

[41]     To clarify, the sentence of two years six months' imprisonment is imposed on the lead charge of failure to provide the necessaries of life.  A concurrent sentence

of six months is imposed on the charge of neglect in each case.

Venning J