R v Wallis

[2023] NZHC 2029

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2022-042-419

[2023] NZHC 2029

THE KING

v

DANIEL WALLIS

Hearing:

1 August 2023

Counsel:

R W Donnelly for the Crown

M J Vesty and M Zintl for the Defendant

Date:

1 August 2023

SENTENCING REMARKS OF HARLAND J

Introduction

[1]    I start by acknowledging all who are present here today. The circumstances that bring all of you here are nothing short of tragic. The death of a baby is hard enough, but the death of a baby at the hands of a family member is unimaginably more difficult. Cases such as this are among the hardest cases the Court has to deal with. Nothing I can say today, let alone the sentence I impose, can ever make the grief you feel any better.

[2]    At the outset, I want to acknowledge your loss. But to those of you present, as you may understand, there is a process I must follow. It may seem clinical and dispassionate, and hearing what happened to Hope will be distressing to everyone. I

R v WALLIS [2023] NZHC 2029 [1 August 2023]

apologise for that, but it is part of the sentencing process I must follow to ensure that the sentence I impose is transparent.

[3]    I now turn to the matters I must address in imposing sentence and this is, in the main, addressed to you Mr Wallis.

[4]    Mr Wallis, you appear before the Court today having pleaded guilty to one charge of manslaughter.1 The maximum penalty is a term of life imprisonment.

[5]    Because you have pleaded guilty to the charge, the facts relating to your offending are outlined in a Summary of Facts, which I now must outline.

Facts

[6]    The victim in this matter was your infant daughter Hope who was chronologically five months old at the time she died, but developmentally likely two months old because she was born prematurely. You were 24 years of age at the time Hope died and you and Hope’s mother were living together.

[7]    Hope was born prematurely on 25 August 2021. She was cared for in a neonatal unit for a number of weeks. But, on 21 December 2021, she was released into the care of you and her mother in Invercargill. She was however subject to extensive ongoing care and observation and, on 19 January 2022, underwent a routine comprehensive examination by a local consultant paediatrician who reported that she was progressing well and was in good health.

[8]    On the evening of 21 January 2022, you were at the family home with Hope and her mother. Hope’s mother fed her and read her a book before she was settled into her bassinette. Following this, you were left in charge of looking after Hope while her mother went to visit friends. There is a suggestion that you were not happy about this given that, for you, it was the end of a long week of 12-hour days. You described feeling under pressure at the time because you were exhausted, financially stressed and were having relationship difficulties.

1      Crimes Act 1961, ss 162A, 171 and 177(1).

[9]    Hope became unsettled later in the evening while your partner was still out. You described feeling overwhelmed by the situation you were in.

[10]   At 11.33 pm, you made a Facebook call to Ms Lennon who heard Hope crying in the background. You told that person, Ms Lennon, that Hope had started crying about 10 minutes after her mother left.

[11]   At 11.40 pm, the Ms Lennon received a video call from you asking for help. You stated that you had dropped Hope. You were advised by Ms Lennon that she would come straight around to your address.

[12]   Five minutes later, she rang you. She said you sounded stressed during this call. When you were asked if Hope was alright and whether she was breathing, you said she was not.

[13]   Ms Lennon and her son arrived at your house. She observed you holding Hope and immediately took her from you. She noticed that Hope was limp, not breathing and was very pale. She was also bleeding from the nose. She and her son drove to Invercargill Hospital while you remained at the house and cleaned up some of your daughter’s blood.

[14]   At the hospital, medical staff were able to resuscitate Hope and stabilise her condition. You ran to the hospital but you were not allowed to enter. And you were later located by the Police asleep in a vehicle in the hospital carpark.

[15]   Hope was transferred to Starship Hospital in Auckland but tragically died from her injuries on the evening of 26 January 2022.

[16]   When you were initially spoken to by the Police, you were not immediately upfront about what had happened. You stated you were attempting to feed Hope while seated on the couch in the living room, but she would not take the bottle. You said you threw the bottle on the ground and Hope started wriggling and rolled off your left forearm, falling head first onto the bottle on the floor. You said she hit her left forehead on the bottle and her body went over backwards.

[17]   You initially said that Hope was upset but appeared okay. Later, you said you thought you heard something like saliva or potentially milk or vomit in the back of her mouth, so you rolled her over your arm and gently tapped her back and she appeared to come right.

[18]   You said you placed Hope on the change mat and heard her snoring and thought she was asleep. However, she then stopped making any noise and was unresponsive. This was when you said you called Ms Lennon and attempted CPR while in the kitchen. You observed blood coming from Hope’s mouth and eventually her nose as well. You explained that you were not good with the sight of blood and vomited into the kitchen sink, during which Hope hit her head on the bench.

[19]It was at this point that Ms Lennon arrived and took Hope to the hospital.

[20]   A post-mortem was conducted over two days, concluding on 28 January 2022. The cause of Hope’s death was determined to be complications resulting from head injuries.2 The post-mortem did not identify any non-traumatic cause to explain Hope’s injuries. The medical findings were inconsistent with the description of events you had given. The neuropathologist noted that there was no literature to support such catastrophic head injuries having been caused by a low-level fall.

[21]   After you were charged by the Police, through your lawyer, you provided a fuller explanation of what had happened and what injuries had caused your daughter’s death. You said you forcefully smacked Hope around the head with an open hand two or three times. And the pathologist advised that his examination of your daughter and the injuries she sustained were consistent with this explanation. It is important to record that because you initially did not give a full explanation to the hospital about what happened. Finally, you did and what you said happened was found to be consistent with the medical injuries Hope had experienced.

2      This included acute subdural and subarachnoid haemorrhage, cerebral oedema and hypoxic brain changes.

Victim impact statements

[22]   I now turn to the Victim Impact Statements. We heard two presented to the Court today and there was an additional one that I have read carefully. As anyone would expect, they clearly record the grief and ongoing difficulties that have flowed from Hope’s death at your hand Mr Wallis.

[23]   Brittany is Hope’s mother. She describes having Hope as the “greatest happiness” she had ever experienced. In her words, this joy and motherhood have been ripped away from her. Her relationships with her family have been impacted. She struggles to be around her young nieces and nephews because they remind her of Hope. Life is not the same for her anymore. The loss of Hope will be with her forever.

[24]   Chris and Sharon are Brittany’s parents and Hope’s grandparents. Their hopes and dreams of watching Hope grow up and achieve the milestones she would have reached are gone. They are angry at you, both for the offending itself, but also because you lied afterwards. They say nothing will fill the void that is left as a result of Hope’s death.

[25]   Kelli, Ms Lennon, is a grandmother figure to Hope. She describes Hope as a real fighter. She too grieves the loss of the future Hope may have had. She also struggles to be with her one-year-old grandchild because her grandchild is of a similar age.

[26]   All of this reminds us of the impact of your offending. The loss of Hope carries on and its effect will always be felt by Brittany and her family. It is very clear to me that Hope was a much loved daughter, granddaughter, niece and cousin by her mother’s side of the family. But, I also acknowledge she was much loved by your side of the family and, despite what you did, by you as well.

Approach to sentencing

[27]   I now outline the approach that I need to take as a matter of law in sentencing you. I must consider the purposes and principles of the Sentencing Act 2002 (the Act). And while I must impose the least restrictive outcome, I must also take into account

the gravity of your offending, including the degree of culpability or blameworthiness you have for it and the seriousness of the offence themself.3 Any sentence I impose must denounce your conduct and hold you accountable for the harm your offending has caused.4

[28]   Determining the appropriate sentence first requires me to set a starting point which will be based on the seriousness of the offending you have admitted through your plea of guilty. Having established the starting point, I will then consider your personal circumstances, including your guilty plea. This will produce an end sentence which I must ensure meets the principles and purposes of sentencing.

[29]   I want to pause and explain that the purpose of sentencing today is not to put a value on Hope’s life. That is incalculable. The purpose of sentencing is to balance  the factors that apply to your offending, and to you personally. Your sentence must also be consistent with other sentences that have been imposed for manslaughter of a child because to do otherwise would be unfair. In other words, this sentencing cannot in any way make up for Hope’s death, rather, it responds to her death in the fairest way possible and in accordance with the law.

Starting point

[30]   In cases involving violence against a child under the age of 14 years, the law requires me to take into account certain matters that are described as aggravating factors, to the extent that they are applicable in a case.5 In this situation, there are three aggravating factors. First, your daughter was a very young baby who was born three months prematurely, which meant she was a considerably smaller baby for her age, approximately the size of a two month old. She had been released from the neonatal unit of Invercargill Hospital just four weeks prior to her death. Because of this she was extremely vulnerable. It is hard to imagine a more vulnerable victim. Second, you were her father and it was your job to care and protect your daughter. You did not do so and therefore your offending against her amounted to a gross breach of trust.

3      Sentencing Act 2002, s 8.

4      Sections 7(1), (e) and (f).

5      Section 9A

And third, there was actual violence inflicted by you, that is the two to three open- handed smacks to her head.

[31]   Having said this, I accept that your offending was spontaneous. It involved a sudden brief loss of control by you which had immediate and catastrophic unintended consequences. There had previously been no suggestion that your daughter was at risk of violence from you. In fact, a neonatal homecare nurse described you as caring and loving towards your daughter. I accept that you were feeling overwhelmed, stressed and tired at the time and that this might explain your sudden loss of control but, as your lawyer correctly noted, it does not mitigate the seriousness of your offending but it does help to explain it.

[32]   I now turn to consider other similar cases because these will help me to address the starting point for the term of imprisonment that must follow.

[33]   The cases referred to me all involve situations where babies have died as a result of the actions of an adult. The starting points in the cases referred to me range from seven years six months’ imprisonment,6 to five and a half years’ imprisonment,7 five years’ imprisonment,8 and three years nine months’ imprisonment.9 Some of these cases involve shaking a baby.10 Sentences in other cases for situations where babies or toddlers have been hit around the head have included starting points of eight and a half years’ imprisonment.11 I find your offending to be in the lower end of culpability given the nature of the violence used rather than the cases referred to me that attracted a higher starting point. But ultimately, each case depends on its own facts.

[34]   The Crown submits a starting point of five years six months’ imprisonment is appropriate and your lawyer agrees with this. However, your lawyer submitted this starting point should be reduced because there are mitigating factors relating to your offending that I need to take into account. He referred to your prior love and care for

6      Robinson v R [2011] NZCA 479.

7      R v Wichman [2016] NZHC 1663.

8      R v Pene [2010] NZCA 387.

9      R v Paea [2016] NZHC 822.

10     R v Pene, above n 8; R v Paea, above n 9.

11     R v Archer [2019] NZHC 3146; R v Welsh [2020] NZHC 2850; R v Broadhurst [2008] NZCA 454;

R v Iorangi CA 533/99 and 534/99, 30 March 2000; R v Blake [2017] NZHC 328.

your daughter which had been independently attested to by the neonatal homecare nurse, the fact you were exhausted and stressed at the time of the offending and overwhelmed, and he submitted your offending was a momentary and uncharacteristic loss of control. For this reason, your lawyer submitted a further reduction of six months should apply, which ought then to be reduced by a further six months because you immediately sought assistance from Ms Lennon.

[35]   I take these matters into account, but I am not persuaded that a starting point of anything less than five and a half years’ imprisonment is appropriate. Indeed, a starting point of up to six years’ imprisonment could have been justified.

Personal and mitigating factors

[36]I now turn to your personal and mitigating factors.

[37]   The law allows deductions from a starting point of imprisonment to reflect various matters personal to an offender. These can include whether an offender has pleaded guilty to a charge and therefore accepted responsibility for their offending. The Court can take into account a person’s previous good character, which can be reflected by their lack of previous convictions. A person’s age and their remorse for the offending are also relevant matters. Sometimes a link can be drawn between a person’s upbringing or background and their offending which is also relevant. It is always important for the Court to have a full picture of an offender’s situation, both past and present.

[38]   Mr Wallis, you are now 25 years of age and have no previous convictions. You have pleaded guilty to the charge and accepted responsibility for your offending at the very earliest opportunity. Your early guilty plea justifies a 25 per cent deduction from the starting point.

[39]   There are other matters personal to you that also warrant a deduction from the starting point I have adopted. The first is your relative youth and the second is your remorse for what has happened.

[40]   I have been assisted by a Provision of Advice to Courts (PAC) report and a s 27 report. These reports have helped me to form a view about the person you are, rather than just seeing you as a person who has offended in the way you have.

[41]   You and your partner moved to Invercargill to be closer to her family. The relationship between you and Hope’s mother does not appear to have been entirely positive. Although you considered leaving, when your partner fell pregnant you decided to stay.

[42]   No doubt, Hope’s medical needs, having been born three months prematurely, were extremely stressful for both you and her mother. Your long hours of work cannot have assisted the situation but were likely necessary so that you could make ends meet.

[43]   I have read the s 27 report prepared for you very carefully. It covers a number of personal matters that will not be publicly addressed by me in full. However, some of them need to be addressed for me to be transparent about how I intend to treat them.

[44]   Although your childhood was very happy and you were provided with love and care by both of your parents, your birth mother’s background, including that she was involved in drugs and alcohol, and the background to the reasons for your adoption are unresolved for you. You were also much affected by the death of your maternal grandmother in your final year at primary school and it is possible you have unresolved issues to do with her death.

[45]   You were described as a very shy child but one who struggled to share his emotions and internalised his anger. There is some research to suggest that, despite you experiencing a very happy childhood with your parents, your later involvement with your birth mother, who you met when you were 16 years of age, and the death of her child at birth, a half sibling, at around that time were extremely traumatic for you.

[46]   As well, and unfortunately, you were bullied at school and were expelled at around this time, following a verbal altercation with a teacher. After this, you engaged in study and completed a hospitality course and NCEA levels via correspondence.

[47]   Leaving school at such a young age has clearly been problematic in terms of your employment opportunities. Just before your offending, you were employed driving trucks with very long hours.

[48]   Your mother describes you as being very soft and easy to push around. She describes you as being a young man who has struggled to say no to people. She is concerned that a custodial sentence will be detrimental to you. But I note that you have taken every opportunity that you could have while you have been remanded in custody to help yourself and you deserve credit for that.

[49]   It seems to me that you are a young man who has, at times, had difficulties expressing your emotions in a positive way. While this may not have been evident at the time, when stressed, these sorts of difficulties can come to the fore. But I need to acknowledge that you too have been profoundly affected by what you did. It is recommended that you receive therapeutic interventions to help you process anger and grief issues. These are sensible and extremely important recommendations.

[50]   In terms of the deductions appropriate by way of mitigation, as well as the 25 per cent reduction for your guilty plea, which, as I have said, was forthcoming at the very earliest opportunity, I also accept that your lack of previous convictions, your very real remorse which I consider is over and above that reflected in your guilty plea, and your relative youth require further discounts.

[51]   The difference between the lawyers is that the Crown submits that these should, overall, attract a discount of 15 per cent, whereas your lawyer submits an eight to 10 per cent discount be applied for your remorse and an additional discount to reflect your prior good character, absence of previous convictions and youth amounting to a further 10 per cent and a final deduction of 10 per cent, he submitted, should also be applied to cover the matters referred to in the s 27 report.

[52]   In my view, although extremely helpful, particularly in terms of your ability to be rehabilitated, I consider there is minimal linkage between the matters covered in the s 27 report and your offending. Any linkage, in my view, is not direct. You were 24 years of age at the time of your offending and, although at the higher end for a

discount for age, I factor this into the global discount.12 I agree with the Crown that a 15 per cent deduction is appropriate. This encompasses your good character, remorse, age and rehabilitative potential. With the 25 per cent discount for your guilty plea, this results in an overall discount of 40 per cent and brings your end sentence to a term of three years and three months’ imprisonment.

[53]   Can I say this to you Mr Wallis and to all of those that are present who loved and knew Hope, my wish for all of you is that you are able, at some point, to move forward. Hope had a beautiful name and I encourage you to consider what is embodied in her name. My hope for you is that you keep her memory alive and, secondly, that the pain you all experience will heal in time.

Result

[54]Mr Wallis, could you please stand.

[55]   On the charge of manslaughter, you will be sentenced to a term of three years and three months’ imprisonment.

[56]Please stand down.

Harland J

Solicitors:

Crown Solicitor, Invercargill M J Vesty, Barrister, Nelson. M Zintl, Barrister, Blenheim.

12 R v Makoare [2020] NZHC 2289. The defendant faced sentence for one charge of manslaughter and five counts of dangerous driving causing injury. A global discount of 20 per cent was given, which included youth as part of rehabilitation potential. Cooke J noted that, at 25 years old, a youth discount was not justified in and of itself.