R v Tukiwaho

[2012] NZHC 1193

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-063-5013 [2012] NZHC 1193

THE QUEEN

v

NGAIRE KURA TUKIWAHO

Hearing:         30 May 2012

Counsel:         C Macklin for Crown

H Edward for Prisoner

Judgment:      30 May 2012

SENTENCING REMARKS OF LANG J

R V NGAIRE KURA TUKIWAHO HC ROT CRI-2011-063-5013 [30 May 2012]

[1]      Ms Tukiwaho, you appear today for sentence after committal to this Court on a charge of manslaughter.  The maximum sentence for that charge, as you know, is life imprisonment.

[2]      The victim of your crime was your two month old son.  He had been in your care since his birth, and at the time of his death you were breastfeeding him.

Background

[3]      The circumstances leading up to his death tell all too graphically the effects that alcohol can have.

[4]      On the morning of 4 January 2011, you went with your son to your sister’s address.  You had a bottle of beer there and then breastfed your child.  You returned home a short time later, and put your child into his cot.  You then continued to drink alcohol.   Some time later you returned to  your  sister’s address, and  you began drinking alcohol with a number of people who were present at the address.  It seems that you drank alcohol at the address more or less continuously for about 12 hours. During this period you were intermittently breastfeeding your child but, for the most part, you entrusted his care to two other children who were present in the house.

[5]      At about 11 pm your partner arrived.   A short time after that, you, your partner and your child left the address and returned home.  You settled your child into his cot, and shortly after that you and your partner became involved in a heated argument.

[6]      Your counsel tells me that you have little recall of what happened next, but the summary of facts records that the argument escalated to the point where your partner struck you on the face.  This caused you to receive a bruised cheek, and your counsel tells me today you also received a black eye.

[7]      Shortly after that, your partner left the address.  Notwithstanding that fact, for some unknown reason you decided that you did not want to remain there.  You put your child into his pram and packed some clothing and blankets for him.  You then

went back to your sister’s address, being the address at which you had been drinking for the best part of the day.  When you got there it must have been around midnight and, not surprisingly, you could not raise anyone at the address.  Rather than return home, you elected to climb into a car parked at the address in order to sleep.

[8]      You got into the back seat of the car and initially left your child in the pram outside the car.  You later became concerned that he might be cold in the pram, so you brought him inside the car.  You made him comfortable across your shoulder as you were lying on the back seat. You then fell asleep.

[9]      When you awoke it was daylight and you discovered that your child’s face was blue and that he was not breathing.  You then immediately called for help, but attempts by ambulance staff to resuscitate your son were unsuccessful.   A post- mortem  examination  later  found  that  your  child  died  as  a  result  of  probable accidental asphyxia  associated with an unsafe sleeping environment.

[10]     When the police spoke to you, you accepted that you knew about sleeping risks and you could not explain why you did not leave your child asleep in his pram or place him in the garage or carport at the address.  You said that generally you had not  been  thinking  straight  by  the  time  you  got  back  to  your  sister’s  house. Importantly, you accepted that your son’s death was preventable.

Sentencing Act 2002

[11]     In sentencing you I need to take into account a number of factors.

[12]     The first, and most important of these, is that your son lost his life as a result of the manner in which you allowed him to sleep on your shoulder that night.  As you accept, that was entirely preventable.

[13]     The second is that your son was completely dependent on you for everything. At just two months of age he had no means of fending for himself.  You failed him completely in the manner in which you attended to his sleeping arrangements on that

night.  He trusted you for his security, and you failed to provide him with it.  The price that he paid was his death.

[14]     For that reason the sentence that the Court imposes must have an element of deterrence, and it must denounce the type of behavior that you were guilty of leading up to his death. You need to be held accountable for what you did that night.

[15]     The Crown accepts that you had no intention whatsoever of causing any harm to your son.   Indeed, you did your best in your befuddled state to make him as comfortable as you could.  But your real wrongdoing that night was to engage in a sustained period of drinking that effectively robbed you of the ability to reason and to make sound judgments about your son’s welfare.  It is not a crime of commission, because you did not do anything actively to cause your son’s death.  Rather, it is a crime of omission because you failed to take basic steps that would have seen him safe and secure that night.

Starting point

[16]     There is no guideline, or tariff, judgment of our Court of Appeal setting starting points for a sentence to be imposed on a charge of manslaughter.  That is because  the  charge  of  manslaughter  can  arise  in  many different  ways.   As  the authorities demonstrate, the facts of all cases are very different and for that reason it is difficult to obtain useful guidelines from other sentencing decisions.  Nevertheless, the cases that the Crown has presented in its written submissions show that in a case where manslaughter was caused by intentional violence towards a child, a starting

point of between five and seven years imprisonment can be expected.[1]     In cases

where unintentional death follows the sentence varies widely from discharge, either with or without conviction, or a sentence of up to three to four years imprisonment.

[1] R v Leuta [2002] 1 NZLR 215 (CA); R v Kershaw HC Palmerston North CRI-2003-054-2237, 29

October 2003.

[17]     The Crown submits that the appropriate starting point is a sentence of three to four years imprisonment.  Your counsel accepts that a starting point of around three

years imprisonment is appropriate.

[18]     I consider that your offending falls at the lower end of the scale identified by the Crown simply because you did your best to make your child comfortable, but nevertheless you were in such a state that there was no way that you were ever going to be able to remain awake and ensure that he was safe.  He died because he slipped into your side and was unable to breathe.   I consider that an appropriate starting point is one of three years imprisonment.

Mitigating factors

[19]     Your counsel asks that an allowance be made for your remorse.  When you were interviewed by the probation officer, you were unable to discuss the circumstances that led to your son’s death.   You have now written a letter to the Court indicating the depth of your remorse, and I accept that you are remorseful. Any mother who had lost her son, in any circumstances at all, would have remorse.  I am prepared to make a small allowance for remorse in the circumstances of the present case, and I propose to reduce the sentence by three months to reflect that fact.

[20]     You are also entitled, as the Crown accepts, to a discount for the fact that you have pleaded guilty at a relatively early stage.  Although you did not plead guilty at the earliest stage, nevertheless a guilty plea was intimated early on.   I accept that most of the delay prior to the point at which you entered your plea was due to the need to reach agreement with the Crown regarding the summary of facts.  I propose, therefore, to allow a full discount of 25 per cent, or eight months, to reflect your guilty plea.

[21]     I should interpolate that the Crown sought a slight uplift to reflect the fact that this is not the first time one of your children has died.  In 2008 your two month old son died in what was later held by the Coroner to be a death by Sudden Infant Death Syndrome.  I do not consider that it would be appropriate to add any uplift to reflect that factor because there were no criminal consequences for you, or indeed any other consequences, other than the fact that you lost your son.  Nevertheless, you knew from that point on that children are vulnerable, and that knowledge ought to have been to the forefront that night, and it was obviously not.

[22]     The end result, therefore, Ms Tukiwaho, is that I am satisfied that a sentence of two years one month’s imprisonment is appropriate.

Sentence

[23]     On the charge to which you have pleaded guilty, I sentence you to two years one month imprisonment.

[24]     I record that even if the end sentence had been two years or less, I would not have considered home detention appropriate.   First, that would not pay adequate regard to the purposes and principles of sentencing and, in particular, those of deterrence and denunciation.  Secondly, it is clear that you have very real issues with alcohol.  You have expressed in the past your acceptance that you need to deal with those  issues.    I  do  not  consider  that  a  sentence  of  home  detention  would  be conducive to you addressing that problem, and that it can only properly be addressed within the prison environment.

[25]     Given your conviction for manslaughter, you are also subject to the three strikes law.  I am now going to give you a warning of the consequences of another serious violence conviction.  You will also be given a written notice outlining these consequences which lists the serious violent offences.

[26]     If  you  are  convicted  of  any  serious  violent  offences  other  than  murder committed after this warning, and if a Judge imposes a sentence of imprisonment, then  you  will  serve  that  sentence  without  parole  or  early  release.    If  you  are convicted of murder committed after this warning, then you must be sentenced to life imprisonment.   That will be served without parole unless it would be manifestly unjust.   In that event the Judge must sentence you to a minimum term of imprisonment.

[27]     Stand down.

Lang J

Solicitors:

Crown Solicitor, Rotorua
Counsel:

H Edward, Rotorua