R v Welsh - [2020] NZHC 2850

SUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF THIS JUDGMENT PURSUANT TO S 205 CRIMINAL PROCEDURE ACT 2011: SEE PARAGRAPH [5].

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-004-6917

[2020] NZHC 2850

THE QUEEN

v

PHILLIP JOHN WELSH

Hearing: 30 October 2020

Counsel:

F M T Culliney and R S Ching for Crown D S Niven and P K Hamlin for Defendant

Judgment:

30 October 2020

[REDACTED] SENTENCING NOTES OF WHATA J

Solicitors: Meredith Connell, Auckland

R v WELSH [2020] NZHC 2850 [30 October 2020]

[1] Phillip John Welsh, you have pleaded guilty to manslaughter in relation to the death of Malcolm Bell who was 17 months old at the time. My sentence will be in five parts. First, I will set out the facts of your offending. Secondly, I will describe your personal circumstances. Thirdly, I will refer to the victim impact statements. Fourthly, I will set out my assessment of the sentence that should be imposed on you, including any minimum period of imprisonment. And, finally, I will impose sentence.

[2] Before I go further, I wish to acknowledge the family of the victim. Ngā Mihi nui ki a koutou. He tino nui te aroha ki a koutou.

[3] This has been a tragedy for you. Nothing in this sentence will relieve you of your pain. I regret also that I must now refer to the facts of Malcolm’s passing. But it is what I must do.

Summary of facts

[4] Mr Welsh, you pleaded guilty to a lengthy summary of facts. It has informed my sentence today. I will now set out the key material facts that I understand are at least agreed between counsel.

[5] I wish to note that the details relating to Ms Bell at the time before the offending is suppressed [redacted].

[6][Redacted]

[7] Later that day, at 6.52 pm, you, Ms Bell and Malcolm went to the apartment together. Once inside, another argument between you and Ms Bell began when Ms Bell asked you to look after Malcolm while she went out. You said words to the effect of “do I have a choice?” and “just fuck off then”.

[8] At 7.22 pm, Ms Bell left the apartment, leaving you and Malcolm alone together. When Ms Bell left, Malcolm was upset and crying. You were clearly angry and frustrated at Ms Bell [redacted] and then asking you to look after Malcolm for the second time that day, while she went out. You took your anger out on Malcolm for

crying by picking him up and throwing him at the couch. Malcolm was immediately rendered unconscious and did not move.

[9] At 7:32 pm, you called Ms Bell. You told her Malcolm was having a seizure and that she needed to call the ambulance. When Ms Bell had returned to the apartment, you said to her, regarding Malcolm’s injuries, “we were just playing, he bounced off here and Malcolm went funny and…

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 Welsh

Details

AGLC: R v Welsh [2020] NZHC 2850
Case: [2020] NZHC 2850
Decision Date: 30 October 2020

CaseChat Overview and Summary

Phillip John Welsh was convicted of manslaughter in relation to the death of 17-month-old Malcolm Bell. The case was heard in the High Court of New Zealand, Auckland Registry, and the judgment was delivered on 30 October 2020. The primary legal issue before the court was to determine the appropriate sentence for Mr Welsh, considering the aggravating and mitigating factors of the case.

The court had to weigh the extreme violence of the act, the vulnerability of the victim, and the defendant's failure to disclose the true cause of the injury against the defendant's troubled upbringing and history of abuse, which contributed to his impulsivity and aggressive behaviour. The court also had to consider the defendant's late admission of guilt and the impact of the crime on the victim's family.

The court determined that the gravity of the offence warranted a starting point of eight years and six months, which was then discounted by 30% due to mitigating factors such as the defendant's difficult upbringing and supportive family, resulting in an end sentence of five years and eleven months. The court also imposed a minimum period of imprisonment (MPI) of 50% to ensure accountability and deterrence. The court sentenced Mr Welsh to five years and eleven months imprisonment, with a mandatory minimum of 50% to be served.

In conclusion, the High Court of New Zealand, Auckland Registry, sentenced Phillip John Welsh to five years and eleven months imprisonment for manslaughter, with a minimum period of imprisonment of 50% to be served. The court considered the aggravating and mitigating factors of the case and determined that the sentence should reflect the gravity of the offence, the vulnerability of the victim, and the need for deterrence and accountability.

Orders