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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tukiwaho

Details

AGLC: R v Tukiwaho [2012] NZHC 1193
Case: [2012] NZHC 1193
Decision Date: 30 May 2012

CaseChat Overview and Summary

Ngaire Kura Tukiwaho was sentenced by the High Court of New Zealand for the manslaughter of her two-month-old son. The court heard that the mother had been drinking alcohol throughout the day and intermittently breastfeeding her child, often leaving him in the care of other children. She eventually returned to her sister's house, where she had been drinking, and fell asleep in a car with the child, leading to his death from accidental asphyxia. The court was required to consider various factors in determining the appropriate sentence, including the preventability of the child's death, the dependency of the child on the mother, and the need for deterrence and denunciation. The court found that the appropriate starting point for sentencing was three years imprisonment, reduced by three months for remorse and eight months for an early guilty plea, resulting in a final sentence of two years and one month imprisonment. The court also noted the mother's history of alcohol abuse and the need for her to address this issue in a prison environment. Additionally, the court issued a warning under the three strikes law, advising the mother of the severe consequences of any future serious violence convictions.

The court's reasoning focused on the tragic circumstances of the case, the preventability of the child's death, and the need for accountability and deterrence. The court acknowledged the mother's remorse and guilty plea but emphasized the importance of addressing her alcohol abuse and ensuring the safety of any future children. The outcome of the case highlights the serious consequences of neglecting the welfare of a dependent child and the need for appropriate sentencing that balances accountability, deterrence, and rehabilitation.

Orders