R v Wilson

[2023] NZHC 2640

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-044-3602

[2023] NZHC 2640

THE KING

v

BOSTON LIAM WILSON

Hearing:

21 September 2023

Counsel:

A McClintock for the Crown

L Smith and P Hamlin for the Defendant

Sentencing:

21 September 2023

Reissued:

10 October 2023

SENTENCING NOTES OF GORDON J

Solicitors/Counsel:

Meredith Connell, Auckland L Smith, Barrister, Auckland P Hamlin, Barrister, Auckland

R v WILSON [2023] NZHC 2640 [21 September 2023]

[1]    Mr Wilson you are for sentence today having been found guilty by a jury on a charge that you murdered your 10 month old nephew, Chance Aipolani-Nielson (Chance).

[2]    First I acknowledge the presence of Chance’s mother Azure and other members of the family, both in Court and perhaps present remotely by electronic link to the Court.

[3]    When a person is convicted of murder they must be sentenced to life imprisonment unless, given the circumstances of the offence and the offender, a sentence of life imprisonment would be manifestly unjust.1

[4]    Mrs Smith, on your behalf, submits that the Court should not impose a sentence of life imprisonment. Rather, she submits  the Court  should  impose a sentence of  14 and a half years’ imprisonment.

[5]    The Crown case is that a sentence of life imprisonment is appropriate. It would not be manifestly unjust.

[6]    That is the first main issue the Court will need to determine today, namely whether I should impose a sentence of life imprisonment or whether the sentence should be for a fixed period and if so, its length.

[7]    In the alternative, if the Court does not accept Mrs Smith’s submission on the first issue and the Court considers a sentence of life imprisonment would not be manifestly unjust, Mrs Smith submits the minimum  non-parole period should be    14 years.

[8]    That is the second main issue for the Court today. In the event I decide you should be sentenced to life imprisonment, I will need to set the minimum period of imprisonment you must serve before you are eligible to be considered for parole.

1      Sentencing Act 2002, s 102(1).

Factual background

[9]I start with the facts of your offending.

[10]   Chance and his mother Azure were part of your household. They had lived with you since Chance was born. Also in the same household there was your partner Darien, who is Azure’s half-sister, and the four daughters you and Darien have together aged between six weeks and four years at the time you killed Chance.

[11]   Darien and Azure’s mother, known as Deedee, also lived with you until around late November or early December 2021 when she went overseas to care for a sick relative.

[12]   Prior to Chance’s death, he had been left alone in your care on only a few occasions, for short periods. Azure was working at the time and it was mainly Deedee who looked after Chance during the day while Azure was at work. Once Deedee went overseas it was Darien who had the main responsibility of looking after Chance while Azure was at work.

[13]   On the morning of 15 December 2021 the daily routine in the household began as it generally did: Azure left for work around 9.00 am leaving Chance at home. Sometime after that you dropped three of your daughters off at your aunt’s place just down the road (one was already there) and then you returned home. Chance was to have gone to your aunt’s as well. But he was asleep in Azure’s bedroom and so was left sleeping at home.

[14]   Darien’s father Rhys arrived and the two of them left at around 12.23 pm to get coffee and to do some shopping.

[15]   Between 12.23 pm and when you phoned Darien at 12.57 pm, you inflicted severe head injuries on Chance, who immediately became completely unresponsive. You told Darien when you called her that Chance was not breathing. He was also not responsive when the paramedics arrived in response to the 111 phone call that Darien had made.

[16]Chance’s head injuries included:

(a)brain damage, amongst the most severe that Dr Wilson, a paediatric radiologist, had ever seen;

(b)retinal haemorrhages and macular schisis, the latter described by Consultant Paediatric Ophthalmologist Dr Justin Mora as occurring in only the worst accidental injuries such as serious car crashes and severe crush injuries;

(c)subdural haemorrhaging all around Chance’s brain;

(d)blood in Chance’s spinal cord, which is almost exclusively a consequence of inflicted trauma; and

(e)a three centimetre depressed parietal skull fracture.

[17]   You were alone in the house with Chance for just over half an hour before you made the phone call to Darien. You say you phoned her immediately after Chance stopped breathing.

[18]   I am not inclined to believe you, as to how soon you phoned Darien, as there were significant aspects of your evidence regarding the circumstances in which Chance was injured, which I will come to, that the jury, by its verdict, clearly did not believe.

[19]   But in any event, I accept that if there was a delay in your phone call to Darien after you injured Chance, it was a relatively short delay, given the half hour period I have referred to.

[20]   Darien, who was still with her father in his car when you called her, phoned 111 immediately. Emergency services attended promptly, arriving around 1.00 pm. You denied to them that you had done anything to Chance, despite it being obvious that Chance was critically unwell. For example you told one first responder that you put Chance to bed around 12.30 pm, then you heard a cough, you went to check on

him and saw some mucus around his mouth. You told another there was possible vomit around his mouth.

[21]Chance was taken by ambulance to Starship Children’s Hospital.

[22]   You also denied any responsibility for his injuries to Azure, Darien, and other family members.

[23]   You were spoken to by the Police on the evening of 15 December 2021. You denied causing Chance’s injuries. You maintained what you had said to others, that you heard a cough from where you were gaming in the lounge and rushed in to the bedroom to check on Chance. You said he was pale and sweaty and you immediately applied CPR. You said you then carried Chance to the lounge and applied CPR again with mouth to nose resuscitation.

[24]   You denied Chance might have struck a wall while you were rushing with him. You said Chance had not collided with anything. You denied shaking him. You said you had done nothing that might have caused his injury. You said you had gone through stressful things with your daughters and you never lose control.

[25]   Chance died in Starship Children’s Hospital two days later on 17 December 2021.

[26]   On 23 December 2021 you were interviewed twice more by the Police. In the first interview you again denied causing Chance’s injuries. It was put to you that a witness (a neighbour) had heard a baby crying. You said that was not true. You said Chance never cried once.

[27]   In the second interview you said you went to check on Chance, you picked him up, you accidentally dropped him and he hit his head on the corner of the bedside table. You said he went white and so you did CPR. You denied hitting him.

[28]   You gave evidence at your trial. Faced with overwhelming medical evidence called by the Crown, you finally admitted shaking Chance and that the shaking caused his death. But you said you shook him in order to revive him because he had stopped

breathing. In other words, you accepted you were guilty of manslaughter but not murder.

[29]   You denied intentionally striking Chance’s head either directly or by throwing him or striking him against a surface. You claimed that the skull fracture must have been caused after you picked Chance up off the bed when you said he partially slipped from your grasp, bumping his head on the bedside table. Or another explanation you gave was the skull fracture might have been caused when you ran from the bedroom holding Chance to make the phone call to Darien, and you accidentally bumped Chance’s head against the bedroom door frame.

[30]   In finding you guilty of murder, the jury clearly did not accept your explanation regarding the shaking. Your explanation was entirely inconsistent with the expert medical evidence as to the severity of the injuries and the degree of force that would have been required to inflict them.

[31]   I find that events occurred as follows. Chance had been asleep on the bed in Azure’s bedroom. He began to cry. You went from the lounge into the bedroom. Either in anger, frustration, stress or a combination of any of those, you shook Chance violently with extreme force. This caused the subdural haemorrhaging, retinal haemorrhaging, macular schisis, and other brain damage described by the medical witnesses. You shook Chance repeatedly with the kind of force experienced in a serious car crash.

[32]   There is also the parietal depressed skull fracture. The Crown suggests the jury was not unanimous in finding that injury was intentionally inflicted by you. That submission appears to be made having regard to a jury communication during the course of their deliberations.

[33]   I consider it is open to me to make a finding on that issue for two reasons. First, the jury in its question noted they were unanimous as regards intentional shaking. However, the communication is silent on their position as regards intentional striking. Second, the jury question was asked on Tuesday 11 July 2023. The next communication was the following day at 12.19 pm when the jury sent a note to say they had reached a unanimous verdict. In other words there was a period of

deliberation between the time of the jury communication on 11 July 2023 and the jury reaching a verdict.

[34]   In making my finding I have regard to the medical evidence as to the degree of force needed to cause such a depressed skull fracture. None of the medical experts called by the Crown said it was reasonably possible that the scenario you described would have caused the skull fracture. Professor Smith, a world-leading expert, described your scenario as a “very, very unlikely” explanation for the skull fracture. Dr Kesha, the pathologist, described the force needed to cause the fracture as significant. He compared it to a motor vehicle accident or a child falling from a one storey building.

[35]   I find that as well as violently shaking Chance you intentionally used blunt force in some way against his head, causing the skull fracture. Most likely you threw Chance towards the ground with his head hitting the bedside table as he fell. As long as you continue to deny intentionally causing Chance’s injuries, we will probably never know exactly what you did. However, it is not necessary to be certain of the precise mechanism. What is important is that you intentionally, in other words, deliberately impacted Chance’s head either directly or indirectly in some way as well as violently shaking him.

Victim impact statements

[36]   The Court has received victim impact statements from: Azure; her father, Christopher Nielson, who is Chance’s grandfather; Ruban and Kody Nielson, Azure’s brothers and Chance’s uncles; Marie Graham, Chance’s great aunt; and Elizabeth Rosemeyers, Azure’s cousin.

[37]   Chance was a much loved baby boy. The impact of his death on Azure has been profound. It is made much worse by the fact that she works in early childhood care, so she is reminded every day of what she has lost. Her loss is compounded by the upcoming arrival of his new baby brother, who Chance will never get to meet.

[38]   Azure says what you did tore her family apart. Her relationship with her sister Darien will never be the same. She says it is not lost on her that there are more victims

than just her. She says her whole family has been impacted: her mother, her father, stepfather, sisters and her nieces who are going to grow up with you, their father, in prison for what you did to Chance.

[39]   The statements of Azure’s brothers and father in particular refer to the impact that the trial and your continued denials have had on the family. Ruban says that had you admitted the truth, the process of healing could have begun. Instead, he says deep divides have been created in the family, which he does not see as being able to be repaired.

Purposes and principles of sentencing

[40]   The Sentencing Act 2002 sets out various purposes which the Court may take into account2 and principles which the Court must take into account.3 In sentencing you I will hold you accountable for the immeasurable harm and loss caused to Chance, his mother and their wider family.

[41]   In your case, as well, the sentence I impose will denounce your conduct; deter you and others from committing similar offending; but also assist in your rehabilitation and reintegration.

[42]   I am required to take into account the gravity of your offending; the general desirability of consistency with sentencings in similar cases; any victim impact statements; your personal circumstances and background; and I must impose the least restrictive outcome that is appropriate in the circumstances.

[43]   I adopt the words of another Judge when he was sentencing a defendant for the murder of his partner’s baby who was just short of five months old. The Judge said this:4

[11] Baby killings by men who are not the biological fathers of their partners’ children happen far too often in New Zealand. It is a real blight on the way we live and it should not happen in a caring society. In the last couple of days there have been news reports of yet another

2      Sentencing Act, s 7.

3      Sentencing Act, s 8.

4      R v Wakefield [2019] NZHC 1629.

baby killing that appears to conform to this all too frequent pattern. That provoked public comment from the Children’s Commissioner to the effect that children are a gift and a treasure, and when they are born they need adults to look after them and to prioritise the baby’s interests. ...

[44]   I agree with that Judge when he concluded that deterring such dreadful conduct is a material consideration in sentencings of this kind. That you were Chance’s uncle rather than his stepfather does not detract from those comments.

Aggravating and mitigating features of offending

[45]   I accept the Crown’s submission that the following aggravating features are present:

(a)Breach of trust5

You were Chance’s uncle and a trusted adult in the role of Chance’s caregiver on the occasion that you injured him. Although it was mainly Darien whom Azure trusted to care for Chance while she was at work, you were often present and by your own admission would help out with Chance’s care.

(b)Particular vulnerability6

This is stating the obvious. Chance, as a 10 month old baby and alone in your care, was particularly vulnerable.

(c)Attack to the head

As Ms McClintock submits, the head has long been accepted by the courts to be a particularly vulnerable part of the body.7 This is particularly so in the case of a baby. All of Chance’s injuries were to his head.

5      Sentencing Act, s 9(1)(f).

6      Sentencing Act, ss 9(1)(g) and 104(1)(g).

7      R v Taueki [2005] 3 NZLR 372 (CA) at [31](e).

(d)Significant harm

Your offending has had a devasting impact on Azure and the wider family. This has been exacerbated by your continued denial of the offending.

[46]   Ms McClintock submits there are no mitigating features of the offending. She notes that you applied CPR and called for help promptly. But she says those steps are offset somewhat by the lies you told about what had happened to the paramedics who tried to help Chance. I will return to the issue of your conduct after you injured Chance later in these sentencing remarks.

[47]   The Crown also accepts that this was the sole occasion on which you inflicted harm  on  Chance,  rather  than   there  being   a   pattern  of  harming   him.   But, Ms McClintock submits that rather than this being a mitigating adjustment to the starting point, additional harm is treated as an aggravating feature in other cases resulting in a higher starting point. In other words, the absence of prior harm is not a mitigating factor. I accept that submission.

Framework for sentencing – s 102

[48]   I need to sentence you in accordance with the framework in our Sentencing Act.

[49]   First, there is s 102 which contains a presumption of life imprisonment in sentencing for murder unless the circumstances of the offence and the offender would render such a sentence manifestly unjust.8 The presumption of a sentence of life imprisonment for murder recognises the sanctity accorded to human life in our society, and our community’s abhorrence of the crime of murder.9

[50]   A sentence of life imprisonment would mean that you must remain in prison throughout your life unless and until the Parole Board releases you into the community, on parole, at the end of the minimum non-parole period set by the Court.

8      Sentencing Act, s 102.

9      R v Williams [2005] 2 NZLR 506 (CA) at [57].

If you were to be granted parole and released into the community, you may only remain in the community so long as you comply with your parole conditions and do not reoffend. The sentence of life imprisonment would mean that you would always remain liable to be recalled to prison to complete your sentence.

[51]   However, as I said right at the beginning of these sentencing remarks our Sentencing Act says that, having regard to the circumstances of the offence and the offender, the Court may determine that a sentence of life imprisonment would be manifestly unjust.

[52]   This is the submission that Mrs Smith makes on your behalf. She says the Court should not impose a sentence of life imprisonment. She says it should be a determinate sentence. In other words, a sentence of imprisonment for a fixed number of years.

[53]   In the recent decision of Dickey v R our Court of Appeal accepted that when sentencing a young person for murder, the Court must always undertake an analysis under s 102, giving careful consideration to whether life imprisonment is manifestly unjust.10

[54]   In both Dickey and a subsequent decision in Frost v R11 the Court of Appeal conducted a detailed analysis of offending where the offender is a young person. The Court of Appeal included those aged 18 to 25 years, described as “emerging adults” in the category of a young person. Characteristics described and accepted by the Court of those in that age group include poor impulse control and difficulty still in regulating emotions.

[55]   So how is it then the Court assesses “manifest injustice”? In Dickey the Court of Appeal said:12

… [W]e think it is no longer correct to say, as the Court did in Rapira, that youth can carry little weight when balanced against the public interest in denunciation and accountability. The seriousness and culpability of the offending remain centrally important. It also remains generally true to say

10     Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405 at [177].

11     Frost v R [2023] NZCA 294.

12     Dickey v R, above n 10, at [177] (footnote omitted).

that youth alone is not enough to establish manifest injustice. However, young persons may present with a combination of mitigating circumstances relevant to the offending and personal mitigating factors which together are capable of establishing manifest injustice. ...

[56]The Court of Appeal also said in the same case:13

… Under s 102 manifest injustice is not a matter of calculation. Rather, it should be assessed as a matter of overall impression.

[195] The assessment must begin with the gravity of the offending and culpability of the offender. Personal aggravating and mitigating factors should then be taken into account. As we have explained at [167], each case must be assessed on its own merits, having regard to the full register of sentencing principles, purposes and factors. We observe that manifest injustice is most likely to be found where the offender can point to both mitigating circumstances of the offending and a combination of substantial personal mitigating factors.

[57]   Regarding the gravity of your offending I repeat what I have already said. Chance was a vulnerable ten month old in your sole care. You breached a position of trust. You inflicted head injuries in two different ways using significant and violent force.

[58]   Having said that, I accept it was not a lengthy and sustained assault. The Crown advanced its case at trial as a reckless murder.14 The Crown did not suggest you intended to kill Chance.15

[59]   You phoned Darien soon after you injured Chance. However, I accept the Crown’s submission, that is somewhat offset by your lies to the paramedics who were trying to revive Chance, and your continued lies about what had happened.

[60]   The Court is told you regularly smoked cannabis. You said to the writer of the Provision of Advice to the Courts (PAC) report you had smoked cannabis that morning. But you did not attribute your actions to being under the influence of cannabis.

13     Dickey v R, above n 10, at [194] (footnotes omitted).

14     Crimes Act 1961, s 167(b).

15     Section 167(a).

[61]   As to factors personal to you, Mrs Smith notes you were 21 years old at the time (in fact you were a week short of turning 22). You have no prior criminal history and witnesses called on your behalf were complimentary of you as a parent. There is no suggestion you had previously harmed Chance. Mrs Smith also relies on what she refers to as social deprivation and your background, which she submits establishes a link between you and the offence. All of these matters, she says, would render a sentence of life imprisonment manifestly unjust.

[62]   Ms McClintock, for the Crown, submits your background makes your case different from other cases where the Court has considered this provision. She submits that the circumstances of the offending combined with your background do not reach the strict level required to establish manifest injustice.

[63]   You have filed a report under s 27 of the Sentencing Act and also a report from a psychologist.

[64]   It is said that you felt the impact of your parents’ separation during your childhood. That was particularly so because for a number of years after the separation your father had no involvement in your life.

[65]   Before their separation your parents had moved to Paeroa on the instigation of your mother. Your father had never really wanted to live there. It seems that your father’s negative drinking behaviours and other behaviours and arguments between your parents in part stemmed from the move to Paeroa. Your mother, who was spoken to in the course of preparing the report, acknowledged that although she tried her hardest to keep you and your sisters away from the conflict, that was not always possible.

[66]   After the separation, while your mother was working hard to support the family, behind her back you began spending time at the Black Power pad in Paeroa. Several whānau living in that town were gang-associated.

[67]   You began using alcohol and cannabis at the age of 12 and by 14 you were a daily heavy user of cannabis. I interrupt the narrative to note that you ceased drinking

alcohol completely approximately three years ago, but you were still a daily user of cannabis at the time of your offending.

[68]   As a result of your “delinquent behaviours”, to use the term in the s 27 report, your mother sent you to live with your maternal aunt Diana in Auckland. You met Darien in Auckland.

[69]   You attended school in Auckland but there was some back and forth to your father’s home in Tauranga and back to Paeroa again. By 15 you had left the education system and you were working with your father as a scaffolder in Tauranga. You were said to be very well respected by your employer.

[70]   By the time you and Darien were both 16 you were expecting a second child. An earlier pregnancy (a boy) had been terminated because both your families decided that you were far too young to have a child.

[71]   You are said to be a hands-on father involving yourself diligently and lovingly in the care of your daughters. There was trial evidence that you wanted to adopt Chance to replace the son that you and Darien did not have.

[72]   I do not consider the s 27 report discloses the degree of deprivation and disturbance in growing up that the Courts sadly see far too often. I accept there were difficult periods in your home life as you were growing up. There was also gang involvement. Behind Darien’s back you have maintained connection with some of those associates. As well there was substance abuse. On the other hand, there is no doubt that your whānau was very close and also supportive of you, both when you were growing up and as you raised your family and to this day. That is apparent from the s 27 report, the trial evidence called on your behalf and the letters written by your mother, your sisters, your maternal aunt and others for this sentencing.

[73]   I turn then to the report of registered clinical psychologist Jim van Rensburg. Mr van Rensburg said he prepared his report, not on the basis of your explanation of how Chance sustained his injuries which you maintained when you spoke to him, but

on the basis of the case put by the Crown. Mr van Rensburg’s report includes the following:

32.        In terms of his personality structure, he displays insecurities which are likely the result of his poor attachment with his father and the poor role modelling that followed his parents’ separation. He was exposed to an anti- social lifestyle while growing up and has maintained an uncomfortably close connection with elements from that lifestyle until now. While he has somehow managed to avoid conflict with law enforcement in the past, he has remained loyal to gang affiliates, although trying not to be actively involved in criminal activities. In contrast, he became deeply involved with the pro-social environment of his partner and her family. …

33.        It is likely that the ongoing tension resulting from the above conflicting conditions, have increased the pressure on his relatively unstable emotional capacity, which could in turn make it more likely for him to respond with brief explosive anger in the face of intense frustration. On the morning of the offending he used cannabis, showing his need to cope with whatever stressors he was experiencing at the time. He also engaged in a video game, which fits with his tendency to socially isolate and focus on a solitary interest of his. If it was a case of a baby continuing to cry and disturbing him in the pursuit of that interest, it is possible that he could momentarily become so frustrated that he would lose emotional control and act with explosive anger, followed by immediate guilt and remorse. It is also possible, although perhaps less likely, that he could have reacted with apathy and when he attended to the child, found it in the state that he described in court and then acted with panic.

[74]   Mr van Rensburg does not say your personality structure is severe enough to attract a diagnosis. However, there is a suggestion that your dysfunction impaired the extent of your self-control. That cannot be a major factor but I recognise it as part of your makeup. Mr van Rensburg suggests it is possible that loss of emotional control would be followed by immediate guilt and remorse. That has not been evident.

[75]   Weighed against the seriousness of your offending I do not consider that your youth, the s 27 report and the psychologist’s report taken together contain the kind of powerful mitigating circumstances that would be needed to displace the presumption of life imprisonment.

[76]   In other words, I do not consider a sentence of life imprisonment would be manifestly unjust. That is the sentence that I will impose.

Minimum term – s 104

[77]   It is next necessary to set a minimum non-parole period. That is the minimum term of imprisonment you must serve before you are eligible for parole. Whether you are granted parole will be for the Parole Board to decide. The minimum term may not be less than 10 years and must be the minimum term of imprisonment that the Court considers necessary to satisfy all or any of the following purposes: to hold you accountable for the harm done to Chance and the community by your offending; denouncing the conduct in which you were involved; deterring you or other persons from committing the same or a similar offence; and protecting the community from you.16

[78]   There is another section of the Sentencing Act that applies at this point in the sentencing process. You have heard counsel refer to it. That is s 104. If the Court is satisfied that the circumstances of the murder fall within the most serious kinds of murder as listed in the Sentencing Act, then I must impose a minimum non-parole period of 17 years or more unless it would be manifestly unjust to do so.17

[79]   One of those circumstances in s 104 is: if the deceased was particularly vulnerable because of his or her age, health, or because of any other factor.

[80]   The Crown relies on this provision. Ms McClintock does not submit that any other specified circumstance in s 104 applies.

[81]Mrs Smith properly accepts that factor applies in your case.

[82]   I consider that s 104 is engaged. Chance was a 10 month old baby alone in your care. He was clearly particularly vulnerable. That factor on its own is sufficient to trigger s 104. Accordingly, in sentencing you to life imprisonment I must impose a minimum period of imprisonment of at least 17 years unless I am satisfied it would be manifestly unjust to do so. If I am satisfied of that then I can specify a shorter minimum period of imprisonment which may not be less than 10 years.

16     Sentencing Act, s 103(2).

17     Section 104.

[83]   I am grateful to Crown counsel18 and defence counsel19 for the assistance they have given to the Court by providing a range of comparator cases. I will refer to those cases in two separate footnotes when these sentencing remarks are typed up. I have also considered other cases which will be mentioned in a footnote.20

[84]   Ms McClintock submits having regard to those cases and the circumstances of the offence and your circumstances, had s 104 not applied, a nominal minimum period of imprisonment in the range of 14 to 15 years would be appropriate.

[85]   Having considered the cases and all relevant matters I consider the nominal period, had s 104 not applied, would be 15 years’ imprisonment. It cannot, however, be lower than that because of Chance’s particular vulnerability, the breach of trust, the devastating impact on Chance’s family of his loss and your continued denial of responsibility.

[86]   As I have already said, by the wording of s 104 I must not go below the 17 year minimum term of imprisonment unless it would be manifestly unjust to do so. I emphasise the principle that the 17 year minimum period may not be departed from lightly.   The Court is bound to give effect to the legislative policy that requires a    17 year minimum term for murder cases of this serious kind. Having said that, I accept the test for manifest injustice under s 104 is more easily satisfied than the test for manifest injustice under s 102.21

18 Cases referred to by the Crown: Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405; Frost v R [2023] NZCA 294; R v Wakefield [2019] NZHC 1629; R v Hemana [2012] NZHC 376; R v Sinclair [2021] NZHC 569; R v Brown [2023] NZHC 1267; R v MS [2017] NZHC 2066; R v Williams [2005] 2 NZLR 506 (CA); Filihia v R [2014] NZCA 401; R v Paul HC Palmerston North CRI-2005-054- 102, 28 November 2005; R v Little [2007] NZCA 491; R v Ellery [2013] NZHC 2609; Lackner v R [2016] NZCA 29; R v Cooper [2017] NZHC 2498; R v Kapea HC Auckland CRI-2007-092- 16885, 25 November 2008; R v Duff [2018] NZHC 2690; and R v Solomon [2016] NZHC 1653.

19 Additional cases referred to by the defence: Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446; R v Peeni [2020] NZHC 1352; R v Simeon [2020] NZHC 1421; and R v Howse [2003] 3 NZLR 767 (CA).

20  R v Taylor [2017] NZHC 1257; R v Filihia [2013] NZHC 2833; R v McIsaac [2016] NZHC 1544; R v Izett [2021] NZHC 70; R v Lackner [2015] NZHC 690; R v Clancy [2021] NZHC 1021; R v Karauria [2018] NZHC 1184; Davis v R [2019] NZCA 40, [2019] 3 NZLR 43; R v Mehrok [2020] NZHC 2722; R v Savage [2020] NZHC 2553; R v Singh [2023] NZHC 2040; R v Paul CA496/05, 1 August 2006; and R v Little HC Nelson CRI-2006-012-2095, 16 March 2007.

21 Frost v R, above n 11, at [99].

[87]   I have considered the comparator cases on this issue of whether the minimum term should be less than 17 years. The cases are not all easily reconciled. I consider the circumstances of Wakefield are the most similar. The Judge in that case adopted a minimum period of 14 years and 9 months’ imprisonment. There are differences though between the two cases. In Wakefield the shaking was on two occasions in addition to previous occasions of shaking. On the other hand, your recklessness is arguably higher than in Wakefield. You were very experienced with children and had completed a first aid course on babies. You must have known that shaking a baby was an extremely dangerous thing to do. I have also found that you intentionally impacted Chance’s head in another way causing the skull fracture.

[88]   The recent sentencing decision of R v Brown22 also assists. In that case the defendant was aged 21 when he murdered a two and a half year old, the daughter of his partner. The Judge found that s 104 was engaged because of two factors in s 104: vulnerability and the offending was committed with a high level of brutality and callousness. The Judge found that the defendant’s attack upon the victim required at least three distinct forceful blows to the head and for that reason and given her age, the Judge said the attack was highly brutal. The defendant also delayed getting medical attention for the victim, for the purpose of avoiding blame. And like you, he pretended he did not know what had caused her very severe medical condition. Counting in his favour, more so than in your case, was his background.

[89]   No cases are ever exactly the same, but there are some similarities in Brown with the present situation. In Brown the Judge found that a 17 year minimum period of imprisonment would involve manifest injustice and settled on a minimum period of 15 years.

[90]   Ms McClintock submits that the issue of manifest injustice is finely balanced. But she submits it is open to the Court to find the test for manifest injustice has not been met and that a minimum period of imprisonment of 17 years could be imposed by the Court.

22     R v Brown [2023] NZHC 1267.

[91]   On your behalf, Mrs Smith submits that a minimum period of 14 years is the appropriate level.

[92]   In the end, I have decided it would be manifestly unjust to impose a 17 year minimum non-parole period. In coming to that decision I have taken into account all the circumstances of the offending and the circumstances personal to you which I have referred to when coming to my decision to impose a sentence of life imprisonment. In particular, I have had regard to your age and the lack of neurological development of those in your age group referred to by the Court of Appeal in Dickey and Frost.

[93]   To Chance’s family I say that my decision that a minimum non-parole period of 17 years would be manifestly unjust, does not mean that what you have said in your victim impact statements has not been listened to. The Court is required to balance all the factors you have heard me mention. One of those is Mr Wilson’s rehabilitation.

[94]   Mr Wilson, your prospects of rehabilitation are not easy to weigh at this stage. You continue to deny the offending and in that respect it cannot be said you have shown any remorse. However, in theory, as a young person, your prospects for rehabilitation should be relatively good even though you continue, for the moment at least, with your denials. It is apparent from the letters of support written by your wider family for this sentencing that they will be ready to support you in the process of rehabilitation.

[95]   Mr Wilson would you please stand. For your crime of murdering Chance Aipolani-Nielson I sentence you to life imprisonment. You are to serve a minimum period of imprisonment of 15 years.

[96]Stand down please Mr Wilson.

Gordon J