Robinson v R - [2011] NZCA 479

IN THE COURT OF APPEAL OF NEW ZEALAND

CA88/2010
[2011] NZCA 479

BETWEEN KAREN ALICE ROBINSON
Appellant

AND THE QUEEN
Respondent

Hearing: 12 September 2011

Court: Randerson, MacKenzie and Asher JJ

Counsel: M M Wilkinson-Smith for Appellant
S B Edwards for Respondent

Judgment: 22 September 2011 at 11.30 a.m.

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.

BThe sentence of six years and six months imprisonment is quashed and a sentence of five years and six months is substituted.

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REASONS OF THE COURT

(Given by Randerson J)

Introduction

The appellant was charged with the murder of a 14 month old child in January 2006. She was acquitted of murder but found guilty of manslaughter after trial in the High Court. She was subsequently sentenced by the trial Judge, Stevens J, to six years and six months imprisonment.[1]
[1] R v Robinson HC Rotorua CRI-2007-063-2028, 27 November 2009.
The appellant initially appealed against both conviction and sentence but has since formally abandoned her conviction appeal. The Crown does not oppose an extension of time to appeal the sentence. Leave for that purpose is granted accordingly.

Background facts

We adopt the facts as found by Stevens J for the purpose of sentencing:
[5]       ... [M] was the youngest of five children of Mr and Mrs [X]. They agreed to the children being placed in care, for what was to be a temporary placement. You and your husband had been approved as foster parents in September 2002. Between that date and November 2005 you had a number of placements from the Open Home Foundation, the last of whom was [M] and her sister [L]. You lived with your husband and five of your own children at …, a farm property where you and your husband were involved as sharemilkers and managers.
[6]       [M] and [L] came to you on 29 November 2009, having previously stayed for one night on 18 November 2009. [M] slept in a cot set up in one of the children’s bedrooms. [L] also slept there. During the day, [M] slept in a portacot set up in your own bedroom.
[7]       Prior to [M] staying with you, she had been examined by her local general practitioner in Tauranga, where she received a full medical examination and check-up. No injuries of any significance were noted and she was found to be in good health. On 6 December 2005, she was again examined after complaining of a tummy bug. She was given an external examination and no injuries of any type were noted.
[8]       On 4 January 2006, [M] was at your farm with her sister, your five children and yourself. Your husband had left the house to do some maintenance work in the milk shed some distance from the residential property.
[9]       At about 5.10pm you telephoned the St John’s ambulance informing the officer that a 14 month old girl had banged her head when falling over and that she was non-responsive. You stated that the fall…

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 Robinson v R

Details

AGLC: Robinson v R [2011] NZCA 479
Case: [2011] NZCA 479
Decision Date: 22 September 2011

CaseChat Overview and Summary

Karen Alice Robinson appeals against her sentence for manslaughter of a 14-month-old child. She was acquitted of murder but found guilty of manslaughter after trial in the High Court and was subsequently sentenced by Stevens J to six years and six months imprisonment. The Crown does not oppose an extension of time to appeal the sentence, and leave for that purpose is granted. The appellant submits that the sentence was manifestly excessive because the Judge had not given sufficient discount for her mental health issues, failed to consider whether any mitigation of sentence should result from the injuries she sustained in a subsequent motorcycle accident and the difficulties this would present for her while in prison, and has since accepted responsibility for the offending by abandoning her conviction appeal. The Court found that the appellant's mental health issues have largely arisen after the offending and could not properly be taken into account in mitigation. However, her mental state after the child's death may nevertheless be taken into account as a mitigating factor as the Judge recognised. The question is whether the Judge ought to have allowed a greater discount for this factor and the other matters raised on the appellant's behalf. The Court considered the Judge ought to have allowed a greater discount than the combined total of twelve months. The extent of her suffering in the period of nearly four years between the child's death and her sentencing warranted a significantly greater discount than the Judge allowed. The level and length of her distress to date is substantially more severe than is commonly encountered in similar situations. It may properly be taken into account on the footing that it constituted a penalty in itself. While the Court did not regard the additional difficulties the appellant would suffer in prison as a result of the amputation of her leg to be such as to render her sentence disproportionately severe, the loss of the limb occurred as a result of the appellant's high levels of stress and anxiety after the child's death. It is a factor to which some weight may properly be given in assessing the appropriate sentence. The Court also accepts Mrs Wilkinson-Smith's submission that some weight may properly be given to a change of circumstances since sentencing. The appropriate discount for all relevant factors is two years overall. That would result in a final sentence of five years and six months imprisonment. The sentence of six years and six months imprisonment is quashed and a sentence of five years and six months is substituted.

Orders