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 then he stopped breathing”.

[10]   You did not admit to your offending until shortly before the trial on a murder charge. There is also some evidence that you sought to attribute blame for the offending to Ms Bell.

Personal circumstances

[11]   I now turn to your personal circumstances. I have the benefit of a PAC report and a very detailed report produced pursuant to s 27 of the Sentencing Act 2002.

[12]   You are 53 years old. You have three children, aged 30, 18 and 16 years. I am told you are a loving and caring father and there is no suggestion that you have been violent towards your children at any time. You still have frequent contact with them, though two live in Australia. You have strong family support, especially from your father and brother.

[13]   The PAC report assesses your likelihood of re-offending as low, provided you complete rehabilitation to address your offending needs, which include your relationship difficulties, impulsivity and offending supportive attitude presented by your inability to resolve relationship conflicts. The report also refers to your numerous previous convictions involving violent offending but notes the “considerable gap” between the current offending and the next most recent offending in 2007. I note that none of your prior offending involved harm to children.

[14]   The s 27 report refers to your troubled childhood. Your parents separated when you were young and you were raised by your father. As he had to work full time, he employed a housekeeper to look after you. You and your brother report suffering physical abuse as children at her hands, on one occasion being hit with a dog collar.

Your father confirms this abuse. Your father also says he was strict with but not unduly tough on you. Your brother refers to your parents’ breakup, which was difficult for you both. He refers to being poor and being left in a car while your dad drank at the pub and he refers to times when you had to fend for yourselves. He says you went into healthcare services for a time which, he says, was in fact a reprieve for you.

[15]   Your brother also refers to a time when you went missing for a few weeks and that this then led to a period of homelessness, living as a street kid. He said the disappearance involved a kidnapping and that you were sexually abused.

[16]   You also refer to regular physical abuse and, on one occasion, you refer to abuse leading to a broken arm. You report having learning difficulties at school and that you have memory difficulties. You refer to your relationships, which appear to have been difficult at times, and that you developed trust issues. Your relationship with the victim’s mother was described as toxic. You are, however, described as an involved father who took great care of his boys.

[17]   The report-writer highlights that your adverse childhood experiences are consistent with a risk of cognitive impairment, neurological disability and educational underachievement and atypical structural development in several critical areas of the brain. It is noted that individuals like you are predisposed to characteristics such as impulsivity and inability to see their actions in context, cognitive impairment and aggressive behaviour. The report-writer also notes that your homelessness at the age of 15, sexual abuse, neglect by State agencies and recourse to methamphetamine as a form of self-medication, suggest maladaptive coping strategies. A “trauma informed” approach that reflects the contribution of childhood adversity to your offending is recommended. Finally, the report-writer suggests that your perception of the offending reflects a diminished level of understanding, but that as you come to terms with your role in the offending, you are developing a good sense of remorse about it.

Victim impact statements

[18]   I also have the benefit of the victim impact statements. Thomas Richardson (known as Tom) is Malcolm’s father. Tom describes the pain of Malcolm’s death and that he has even changed his occupation so that he can be more available to his

children, but he notes that he will never see Malcolm again. Tom expresses that you had other options. He grieves for the life that Malcolm could have had.

[19]   Ms Bell describes Malcolm as her “precious baby boy” who “arrived in this world a happy bonny baby boy along with hopes and dreams of a wonderful life.” Ms Bell expresses the pain of watching Malcolm “slip away”, and describes the additional pain caused by your actions immediately after the incident and your denial (until very recently) of what happened. Ms Bell also, naturally, grieves for the life that Malcolm could have had and with his family.

[20]   Sophie Pokai is Malcolm’s maternal grandmother. Ms Pokai calls Malcolm her “Milky Bar Child.” Ms Pokai describes the “stress, anger, heartache and despair” following Malcolm’s death and expresses the pain in this way, “Children and grandchildren are meant to bury their parents and grandparents not the other way around.” She grieves for what her grandson’s life could have been. Ms Pokai also expresses anger at you for lying and trying to shift the blame.

[21]   Karekraina Katrina Te Aroha Maaka (also known as Kat) is Tom’s de facto wife. She describes how seeing Malcolm’s “horrific state” at the hospital, haunts both her and Tom, and that she will never forgive your denial of what happened for almost a year and a half. Like Tom, Kat expresses that “We would have been happy to have Malcolm as part of our family”.

Sentencing Approach

[22]   I turn now to my assessment of your sentence. In fixing sentence, I must have regard to the purposes and principles of sentencing. In this regard, the sentence must be such as to deter you and others from repeating the offending. The sentence must clearly denounce your actions, make you accountable for them and look to protect the public. I must carefully weigh the gravity of your offending and the harm it has caused. I must also consider your rehabilitation.

[23]   In fixing sentence, I will firstly identify a starting point for a term of imprisonment. This must reflect the gravity of your offending and I will also take into account the starting points adopted in other cases. I will then consider whether you

should be afforded a discount for personal factors. This will result in an end sentence of imprisonment. As the Crown seeks a minimum period of imprisonment, I will address this also.

[24]   Turning to starting point, there are three seriously aggravating factors to your offending. First, extreme, indeed, brutal violence to the head. You threw Malcolm with sufficient force to cause a major head injury. The medical notes observe that the violence was sufficiently extreme that had Malcom survived, then he would have suffered with blindness. Secondly, Malcolm’s vulnerability and breach of trust. At 17 months of age he was utterly vulnerable to you and he was in your care. Thirdly, there was deliberate concealment of the offending from medical officers at the time of the offending. You did not tell them what had caused Malcolm’s injury, that is, your violent act.

[25]   I note the Crown also refers to harm caused by the offending and attributing blame as aggravating factors. I consider the harm is inherent in the manslaughter charge, while the attribution of blame and harm caused by it, must be understood in the context of offending of this kind and also in the context where the harm to the victims, such as Ms Bell, is already very significant. Attributing blame is, however, relevant to my assessment of your remorse and in terms of a guilty pleas, which I will talk about later.

[26]   The Crown seeks a starting point of nine to 14 years having regard to R v Taueki,1 there being three or more aggravating factors. Your counsel suggests a starting point of six years six months, by reference to starting points adopted in cases where the offending involved a single act of anger and frustration.

[27]   Rarely have I see such disparate starting points. It is unhelpful in a matter as sensitive as this. In any event, regrettably, I recently had to hand down a sentence with comparable basic facts, that is, an inexplicable single incident of extreme violence to the head causing the death of a young child. That case is R v Archer.2 In that case, I adopted a starting point of eight years six months. That case referenced comparable

1      R v Taueki [2005] 3 NZLR 372 (CA).

2      R v Archer [2019] NZHC 3146.

cases, R v Donelley3 and Ikamanu v R,4 where starting points of nine and eight years were adopted respectively. There are cases where starting points of 10 years or more have been adopted, but these have tended to involve multiple acts of violence or multiple injuries.5 There are cases where starting points of six to seven years have been adopted, but these have tended to involve lesser acts of violence, for example, shaking a baby.6

[28]   I accept that the cases of R v Ngahere7 and R v Frater,8 cited by your counsel, might be said to be comparable cases – if not worse in the case of Ngahere, insofar as the victim was found with multiple injuries. In both cases, starting points of six years six months’ imprisonment were adopted. I also accept that it is at least arguable that this case falls into the second category of offending of this type mentioned in R v Witika & Smith.9 But I must come to my own conclusion as to what is necessary to meet the purposes and principles of sentencing and I consider, given the extreme violence in this case, that the offending attracts a starting point of eight years six months. This starting point is necessary to denounce and to deter your offending. I do not, however, uplift for prior offending, which occurred many years ago and is not similar in kind to the present offending.

[29]   I turn, then, to the mitigating factors. Your upbringing is marked by episodes of significant abuse and deprivation, the symptoms of which have manifested themselves over the years since childhood in impulsivity, substance abuse, cognitive impairment, aggressive behaviour and sometimes violence. As you have aged, it appears your propensity to violence may have diminished, given the absence of any violence offending since 2007, that is, until the present offending. But, as the Court of Appeal observed in Poi v R,10 the symptoms of a deprived upbringing may still manifest themselves later in life and should still be taken into account when assessing the actual and relative culpability of an offender. And, in this case, your violence was

3      R v Donnelly [2011] NZCA 433.

4      Ikamanu v R [2013] NZCA 510.

5      R v Leuta [2002] 1 NZLR 215 (CA); R v Huata [2017] NZHC 704.

6      R v Mitchell [2017] NZHC 1391.

7      R v Ngahere [2020] NZHC 2133.

8      R v Frater [2019] NZHC 3326.

9      R v Witika & Smith [1993] 2 NZLR 424.

10     Poi v R [2020] NZCA 312.

an impulsive act of aggression and you are not, based on the information available to me, a person otherwise prone to the abuse of children. I also think that impulsivity is sufficiently linked to your deprived upbringing to warrant a discount to reflect that. There is a further factor that is relevant. You have a supportive family who can assist in your rehabilitation. We can move forward with real confidence that this type of offending will not occur again.

[30]   I am satisfied therefore that a discount of 20 per cent should be allowed to reflect this combination of mitigating factors.

[31]   I am not satisfied, however, that you should receive a further discount for remorse. I am sure you are deeply remorseful, deeply regretful at causing the death of Malcolm. But you are reported as having attributed the blame to the victim’s mother and you did not admit the key facts of your offending until sometime later. In those circumstances, I make no discount for remorse.

[32]   In terms of a guilty plea, there is, again, an inexplicable difference between your counsel and the Crown. The Crown says a 10 per cent discount while your counsel says a 25 per cent discount. The Crown, in my view, is much closer to the mark, given that, as the Crown says, you did not admit the facts of the manslaughter until shortly before the murder trial was to commence. Put another way, this is not a case where you have admitted the facts of your offending but disputed the charge. In those circumstances, I consider that a discount of 10 per cent is, in fact, warranted.

[33]   As a result, I discount the start point by 30 per cent, resulting an end sentence of 71 months or five years and 11 months.

MPI

[34]   I turn, then, to minimum period of imprisonment (MPI). I acknowledge that there is no presumption in favour of an MPI, or minimum period of imprisonment, in case of child manslaughter. Each case must be assessed on its own facts. There have been cases, such as Ngahere and Frater, where an MPI has not been imposed. I also accept that this was a one-off incident of impulsive violence, that the risk of you committing an offence of this nature is low and that we can be confident about your

rehabilitation. But the violence in this case was brutal. Malcolm was thrown with such force that he suffered a very severe head injury. The harm caused to the victims is really incalculable and was aggravated by your denial of the offending and attribution of harm to Malcolm’s mother. While the impulsivity of your actions is linked to your difficult background, it remains necessary to hold you accountable for the harm you have done to the victim, to denounce your conduct and to deter you and others from committing the same offence and to protect the community. I therefore impose an MPI of 50 per cent.

[35]   Mr Welsh, please stand. On the charge of manslaughter, I sentence you to a term of imprisonment of five years and 11 months. You must serve a minimum period of 50 per cent of that sentence.

[36]You may stand down, Mr Welsh.