S (CA152/2020) v The Queen

[2020] NZCA 522

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NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF D AND K PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA152/2020

[2020] NZCA 522

BETWEEN

S (CA152/2020)

Appellant

AND

THE QUEEN

Respondent

Hearing:	20 July 2020
Court:	Clifford, Woolford and Dunningham JJ
Counsel:	R A B Samuel for the Appellant R K Thomson for Respondent
Judgment:	23 October 2020 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal against conviction is allowed.

BThe two convictions for abandoning a child are quashed. Convictions for leaving a child without reasonable supervision and care contrary to s 10B of the Summary Offences Act 1981 are substituted.

CThe sentence of 21  months’ imprisonment  is  quashed.  A sentence  of 19 months’ imprisonment is substituted.

DThe appeal is otherwise dismissed.

REASONS OF THE COURT

(Given by Clifford J)

S (CA152/2020) v R [2020] NZCA 522 [23 October 2020]

Introduction

[1]    S, the appellant, was convicted after a jury trial in the District Court at Manukau in April 2019 on 17 charges of ill-treatment of her children, including two of abandonment.1 Responding to the totality of S’s offending, Judge Wharepouri sentenced S on 5 February 2020 to 21 months’ imprisonment.2

[2]S now appeals her two convictions for abandonment and her sentence.

[3]    On her conviction appeal, she says evidence of her 2004 convictions for abandonment was wrongly admitted  at her trial  as propensity evidence, and that   the Judge misdirected the jury on the elements of the two further abandonment charges she faced at trial. On her sentence appeal, she says the proper sentence was one of home detention.

Factual background

[4]    The factual background to this appeal is not straightforward. It is necessary to go into a reasonable amount of detail to provide a proper basis for considering the issues raised, particularly by the sentence appeal.

[5]    S has three children from two previous partners: a son, N, born in 1992 to the first of those partners; and twin daughters, D and K, born in 2003 to the second.

[6]    The statement of agreed facts at S’s trial recorded that the family first came to the attention of Oranga Tamariki (then called Child, Youth and Family) in late 1998 when N came to school with a bloody and bruised nose.

[7]    A complaint was entered into Oranga Tamariki’s database at that time. In 2004 S pleaded guilty to offending on 14 November that year against N, D and K. That day N — then 12 — had been missing from home for several days. S discovered he was staying at a nearby house with relations and went to get him. When doing so S left her daughters, then less than two years old, at home alone. N was reluctant to

1      Crimes Act 1961, s 154.

2      R v [S] [2020] NZDC 2078.

accompany S back to their home. There was a physical altercation between N and S. The police were called and S was unable to return home in the time she had no doubt anticipated. She was charged with, and pleaded guilty to, assaulting N and abandoning D and K.

[8]    S, D and K were again interviewed by Oranga Tamariki in late 2009. At that time D and K reported sometimes being smacked but generally feeling safe at home. S said she had learned from mistakes in the past and her drinking was no longer an issue.

[9]    In June 2016 D and K, then 13 years old, were pupils at their local intermediate school. During a presentation at the school on youth mental health and related issues, the girls broke down crying. They subsequently told staff of abuse they said they had suffered at their mother’s hands since they were very young. Soon afterwards the girls moved to live with N, his partner and family.

[10]   D and K gave electronically recorded interviews (EVIs) the following month. They both spoke generally of their mother getting aggressive and angry with them, and taking that out on them by swearing at them, threatening to kill them and beating them. They said they had been physically and verbally abused on many occasions from an early age.

[11]   They each gave specific examples of the physical abuse they suffered. D spoke of three such occasions, two involving arguments when D had confronted her mother about her drinking habit and her mother had kicked, punched and verbally abused her, on one of those occasions throwing a table at her and on another stabbing her in the leg with a plastic fork. The third occasion involved S swearing and punching D after S had been questioned by social workers who had spoken to D about events at home. The two incidents K spoke of also happened when K confronted her mother about her drinking habit, once when her mother had said K could not go out with her friends and again when she said K could not have pocket money. K said she was kicked and punched on both those occasions, and on one occasion hit with a vacuum cleaner tube.

[12]   K also confirmed her mother abused D more than she did K, and corroborated the details of the table throwing incident and that of S stabbing D with a plastic fork. K said that, in addition, her mother had threatened to kill the girls with jug cords and knives on more than one occasion after coming home from the pub.

[13]   S attended an EVI with the police on 25 May 2017. Reflecting the girls’ complaints, the interviewing officer advised S she was being spoken to about incidents of assault with a weapon, assault with intent to injure and assault, all relating to her daughters in the years from 2012 to 2016.

[14]   In the course of that interview S explained that during 2016 the death of her mother and one of her brothers had caused a lot of stress and grief and she had had something of a breakdown. As a result, she had had difficulty controlling her emotions and this had affected her relationship with D and K. She had told the girls, she said, that they needed to do more to look after themselves, like preparing their own lunches and washing their school uniforms once a week. The girls did not respond positively, and the situation between her and them had deteriorated. Things had got to the point where she had lost her job and could not keep up with the girls’ requests for spending. The girls began saying they no longer wanted to stay with her because she could not care for them.

[15]   In response to the suggestions of assault S explained her style of discipline was generally verbal “but not a very nice verbal”, and gave several examples. When asked whether she had hit the girls, she admitted she had hit D on one occasion after D, then aged about seven, had attacked her and she had retaliated. D had walked past her and punched her in the mouth: in response, she had punched D in the back. She also referred to another occasion when she had hit the girls, when they had called her a useless mother and said that she did not care for them. S also accepted she had in May 2016 “flipped” — to use her description — a table at D during a forthright exchange, hitting her on the knee.

[16]   S denied the other allegations of specific incidents of violence put to her by the interviewing officer.

[17]   Towards the end of that interview, the interviewing officer put to S allegations made by N. N had said when he was growing up his mother had given him hidings. He had gone to school on a number of occasions with a black eye or a bleeding nose as a result. He also said that, when he was about 11 or 12 years old, S had started leaving him alone with the girls, who were only two or three at the time, when she went out at night. N had also said that, when he had taken the girls to his place in 2016, D had told him her mother had thrown something at her.

[18]   S accepted that N had on occasion gone to school with a black eye or bleeding nose, but said she had taken the “rap” for that when it was her partner’s fault. She also acknowledged that on occasions she had left N, then aged about 11 or 12, to look after the girls when she went to the pub. But, she said, before leaving she would have fed, bathed, and changed the girls, put them to bed and given N money for his rugby league the next morning and money for babysitting. She would go to the pub at about 10 pm and return around 3 or 4 am.

[19]   On 30 May 2017, seven charges were laid against S. Each alleged various specific assaults by her on D and K, corresponding broadly to the specific allegations made by the twins and put to S by the interviewing officer during her EVI.

[20]   On 18 January 2018 the Crown assumed responsibility for the prosecution of the charges laid the previous May. In February amended charges were laid. Representative charges of cruelty, abandonment, and threatening to kill were laid in respect of D and K, and a further charge of assaulting D with intent to injure was laid in respect of the plastic fork incident. A representative charge of cruelty against N was also added. At that point S faced 15 charges.

[21]   In late April, the Crown unsuccessfully applied to adduce evidence of S’s 2004 convictions as propensity evidence.3 That application was made based solely on the summary of facts detailing the charges and the guilty pleas. When, shortly thereafter, the text of the EVI N had given to the police in 2004 was recovered, the application was made again. It was granted on 19 July 2018.4

3      R v [S] [2018] NZDC 8895.

4      R v [S] [2018] NZDC 14776.

[22]   Further amendments to the charges were reflected in a revised charge sheet at the commencement of S’s trial. By consent, the charge sheet was further varied during trial. Taken together, and with reference to the charges as they had stood in February 2018, those changes would appear to have been made to:

(a)rationalise the specific and representative charges S faced;

(b)avoid charging S for events on 14 November 2004 for which she had already been convicted; and

(c)recognise amendments to the Crimes Act 1961 whereby:

(i)on 21 June 2007, the defence of domestic discipline at s 59 was repealed and a considerably narrowed provision substituted; and

(ii)on 19 March 2012, s 195 was amended to replace the charge of cruelty to a child with ill-treatment of a child.

[23]   As a result, when the jury retired it was required to consider the following   19 charges. Of those 12 — some laid expressly on a representative basis and others not — reflected N, D and K’s general allegations of abuse. Thus:5

No.	Complainants	Charge	Date	Representative
1	N	Cruelty to a child	1 May 1997– 13 November 2004	✗
2	N	Assault with a weapon on an occasion other than charge 3	1 May 1997– 13 November 2004	✓
4	D and K	Abandoning    a    child under 6	10 January 2003– 13 November 2004	✓
5	D and K	Abandoning    a    child under 6	15 November 2004– 9 January 2009	✓
6	D	Cruelty to a child	10 January 2005– 20 June 2007	✗
6A	D	Cruelty to a child	21 June 2007– 18 March 2012	✗
8	D	Ill-treatment of a child	19 March 2012– 31 May 2016	✗

5      We have grouped sets of charges chronologically to aid comprehension.

No.	Complainants	Charge	Date	Representative
10	D	Threatening to kill	1 January 2005– 31 May 2016	✓
7	K	Cruelty to a child	10 January 2005– 20 June 2007	✗
7A	K	Cruelty to a child	21 June 2007– 18 March 2012	✗
9	K	Ill-treatment of a child	19 March 2012– 31 May 2016	✗
11	K	Threatening to kill	1 January 2005– 31 May 2016	✓

[24]The rest reflected specific allegations. Thus:

No.	Complainants	Charge	Date	Representative
3	N	Assault with a weapon, namely a wooden block	2004	✗
12	D	Assault with intent to injure	30 May 2012– 31 December 2014	✗
13	D	Assault with a weapon, namely a plastic fork	30 May 2012– 31 December 2014	✗
16	D	Assault with a weapon, namely a table	7 May 2016	✗
17	D	Assault with intent to injure	7 May 2016	✗
14	K	Assault with a weapon, namely a vacuum pole	1 January 2015– 31 December 2015	✗
15	K	Assault with intent to injure	1 November 2015– 30 November 2015	✗

[25]The jury found S guilty on all those charges, save 3 and 14.

Issues on appeal

[26]   The issues raised by this appeal, and the submissions made with respect to those issues, can be summarised succinctly.

[27]   S’s appeal against her convictions for abandonment was based on the submission that the Judge misdirected the jury by failing to identify an essential element of that offence. Mr Samuel, for S, submitted that the jury needed to be satisfied that S intended to leave the girls to their fate in the permanent sense.        Mr Samuel also challenged the safety of those convictions on the basis that, as the evidence of abandonment had come out at trial, the admission of the 2004 convictions

as propensity evidence had been in error. At the same time, the representative charges of abandonment covering that entire period sat uneasily with the charges of cruelty, ill-treatment and specific violence. That is, how could S be guilty of abandonment of a child but also be guilty of ill-treating that child “in her care” during the same period?

[28]   For the Crown, Ms Thomson submitted that there was, on the facts that went to the jury, a proper basis for conviction on the charge of abandonment. The Judge was correct to hold that the charge has no particular temporal requirement and rather requires that someone with parental responsibility forsakes that responsibility. Consequently, abandonment could involve something less than permanent abandonment, as a number of Canadian cases showed.6 Furthermore, the propensity evidence had been properly admitted.

[29]   The essential argument for S on the sentence appeal was that home detention, rather than imprisonment, was the appropriate response. The end sentence the Judge had arrived at, 21 months’ imprisonment, allowed for home detention. The Judge had been wrong not to adopt that course. The representative charges of abandonment and abuse over the whole period from 1 May 1997 to 31 May 2016 did not properly reflect the ongoing  involvement  of  Oranga Tamariki  with  S  and  the  twins  following  14 November 2004. Social workers had apparently been satisfied with S’s efforts at rehabilitation and education in subsequent investigations.

[30]   Were the Court to quash the convictions for abandonment and correctly assess the seriousness of the balance of the offending, a lower starting point and end sentence was properly available and, in turn, a sentence of home detention.

[31]   For the Crown, Ms Thomson submitted the Judge’s starting point of four years was within range for what she described as “two decades of abuse”. The Judge had taken careful account of S’s personal mitigating factors, in particular as set out in the cultural report that had been provided. His conclusion that a prison sentence was called for was available to him.

6      R v GKJ 2006 ABPC 72, 394 AR 330; R v Young 2019 NLPC 0818A00133; and R v

Bokane-Haraszt 2007 ONCJ 228.

Analysis

Conviction appeal

[32]   S’s conviction appeal focuses on the Judge’s direction to the jury as to the meaning of abandonment for the purposes of s 154 of the Crimes Act. Section 154 provides:

154     Abandoning child under 6

Every one is liable to imprisonment for a term not exceeding 7 years who unlawfully  abandons or exposes  any  child under the age  of   6 years.

[33]The Judge directed the jury on abandonment in the following way:

Abandonment means to give up charge or custody of  the child concerned.   It must be shown that the defendant left her daughters to themselves, alone, without some proper and appropriate person to guard them from harm. Harm does not need to have to eventuate. It is enough that the girls’ lives and wellbeing was left unattended by someone who could reasonably be expected to keep them from harm. The time which the child is left unattended must be more than de minimis because the criminal law does not seek to make a person criminally liable for leaving a child momentarily, for example, such as a mother who calls over to a neighbour for a cup of sugar while the child is left home alone. But equally the prosecution does not have to establish the defendant intended to leave or rid themselves of the child in a permanent sense. In the end, whether the time elapsed that an accused leaves the child alone without proper supervision amounts to abandonment is a matter of some fact and degree for you.

[34]   We acknowledge that the law here is not straightforward. As Adams on Criminal Law comments: “The bald use of the ambiguous words ‘abandon’ and ‘expose’ creates a difficulty as to the exact scope of the section.”7 The text goes on to refer to what would appear to be the only New Zealand case to substantively consider the offence, Rex v Russell.8 Ms Russell, intending to get rid of a child and to cast it and its maintenance  on  the  state,  left  the  child  at  a  hospital  with  a  doctor.9  Her subsequent conviction for abandonment was quashed by the Court of Appeal, who considered that she had intended to rid herself of the child, but had not unlawfully abandoned it. Rather, she had transferred control of the child to the public authorities.

7      Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [CA154.03].

8      Rex v Russell [1916] NZLR 343 (CA).

9      At 346.

Stout CJ (for the Court) considered this was less than what was required, which was “something that shows the child is left to itself without some proper person to guard its person or life, or some fraud or trick played on the person assuming custody of the child”.10 He went on:11

It no doubt was the intention of the prisoner — her statement to the constable is evidence of this — to get rid of the child, and to cast it and its maintenance on the hospital authorities. There is no evidence of her having made any untrue statement or perpetrated any fraud or trick on the doctor when he accepted the child as a patient. Further, there is no evidence that the child was left for a temporary purpose, nor is there any statement whether the child’s treatment or maintenance was to be paid for.

[35]   As the final sentence of that passages suggests, we consider that the actions of parents who leave their children without adequate supervision on a short-term basis do not fall within the ambit of the section. Rather, we consider the meaning of the word “abandon” is closer to its ordinary dictionary definition, being to “forsake or desert” a child.12

[36]   Such an approach is consistent with the English approach to a broadly comparable provision in the Child and Young Persons Act 1933 (UK) which criminalises the neglect, abandonment, exposure, assault and ill-treatment of children.13 Like s 154, it has always been a serious offence, with a maximum penalty of two years’ imprisonment, later raised to 10 years’ imprisonment. Unlike s 154, however, it also requires the conduct to be “likely to cause … unnecessary suffering or injury to health”, and applies to children as old as 15 years.

[37]   The   ambit   of   “abandonment”   in   that   section    was   considered   by the Court of Appeal in Boulden v R.14 In that case, the appellant boarded a train to Glasgow in pursuit of his wife, leaving his five young children aged between one and nine to fend for themselves at their London address in his absence. On appeal he argued that he had not “abandoned” the children as he had subsequently telephoned

10     At 346.

11     At 346.

12     Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (Oxford University Press, Melbourne, 2005).

13     Child and Young Persons Act 1933 (UK) 23 & 24 Geo c 12, s 1(1).

14     Boulden v R (1957) 41 Cr App R 105 (CA).

the Royal Society for the Prevention of Cruelty to Children to ask them to care for the children. In dismissing the appeal, Gorman J said:15

The question of what is meant by “abandon” was referred to by the Lord President (Lord Dunedin) under another Act in the case of Mitchell v Wright, when he said: “I think the words ‘abandoned or deserted the child’ … point at the parent leaving the child to its fate.” This court is of no doubt that in all the circumstances of the case the jury might well have come to the conclusion that the appellant’s intention was to clear out, to leave these children to their fate and to wipe his hands clear of them.

[38]   Ms Thomson urged us to consider s 218 of the Canadian Criminal Code, which is framed in similar terms to the New Zealand provision.16 She referred us to cases in which parents have been held liable under this provision for leaving their children alone for up to eight hours while they went to work or for two hours while they went to buy cigarettes.17

[39]   Those cases, however, are based on an extended statutory definition of abandonment which provides:18

abandon or expose includes

(a)a wilful omission to take charge of a child by a person who is under a legal duty to do so, and

(b)dealing with a child in a manner that is likely to leave that child exposed to risk without protection.

[40]   That extended definition has led Canadian courts to place greater weight on the circumstances in which the child is left, and in particular any hazards that they may be exposed to. For instance, in R v Young — the cigarettes case — the Provincial Court of Newfoundland and Labrador concluded:19

[62] The offence of abandonment was complete when [the appellant] went out the door and got in her car and drove away. Even if it was true that she did not intend to be away very long, those boys were left there with a bathtub full of water, with toys floating in it. That was a clear drowning hazard.

15     At 110 (citation omitted).

16     Criminal Code RSC 1985 c C-46, s 218.

17     R v GKJ, above n 6; and R v Young, above n 6.

18     Criminal Code RSC, s 214.

19     R v Young, above n 6.

[41]   We are satisfied that s 154 of the Crimes Act, which does not refer to exposure to risk, does not call for such an approach or criminalise parents who simply leave children  inadequately  supervised  (which  is  achieved  by   s 10B   of   the Summary Offences Act 1981).20 Rather, it is aimed at a much more serious offence which is complete when a parent effectively washes their hands of a child and leaves him or her to their fate.

[42]   We are therefore satisfied  the Judge  erred  when he  directed the jury that  the Crown was not required to demonstrate S intended to abandon her daughters in the permanent sense.

[43]   We are also satisfied that a properly directed jury would have acquitted S of abandonment. S’s abandonment involved, initially, leaving the very young girls at home with N when she went to the pub in the evening. In his 2004 EVI, N confirmed what S said in her 2017 EVI. N explained:

Q. Are there any times that she’s asked you to help or you’ve had to help with that?

A.       Yeah.

Q.       Tell me about that.

A.Um well when she goes out cos I let her go out every week just to give her like some time out. And…

Q.       How did you work out to do that?

A. Oh cos um when we…oh…oh cos when she goes out um and then she comes back it’s pretty alright, better than before. But then like when she does, if she doesn’t go out, and she starts getting um … she starts going angrier oh like yeah, getting stressed out more and so I just let her go out for some company of her friends and that.

Q.       And that’s once a week?

A.       Yeah.

Q.       Who looks after the little ones when mum goes out?

A.Me. Oh cos she…when she goes out it’s at night time and she makes sure that we’re alright first before she leaves and so yeah.

Q.       What kinds of checks does she do to make sure you’re alright?

20 See below at [46].

A.Oh she feeds us, changes the babies or else baths them before she leaves.

Q.       Mm.

A.       And yeah just makes sure um they’re alright and I’m alright.

Q.       Mm.

A.       Yeah.

Q.       And who puts the little ones to bed when mum goes out?

A.       Oh me.

Q.       And is that okay?

A.       Yeah.

[44]   The fact of the preparations S made before going out and leaving the girls with N, and that she always returned home, even if only the next day, counts against an intention to abandon. That is not to condone S’s actions. But it is to properly categorise them under New Zealand criminal law.

[45]   The girls’ evidence of being left alone after N had left home in 2004 was given in general terms by K. It happened when their mum went to the pub, which she did all the time. They looked after themselves, preparing evening meals and school lunches. K said she quite like the time away from her mother. An auntie who lived nearby would help them when she could.

[46]   As we assess matters, the evidence at trial and the Judge’s direction do not constitute abandonment. We therefore agree that S’s convictions for abandonment must be quashed. We are satisfied, however, that in finding S guilty of the charge on the basis of the Judge’s directions set out above at [32], the jury must have been satisfied of facts that would prove S guilty of the lesser charge of leaving the children without reasonable supervision and care contrary to s 10B of the Summary Offences Act:

10B Leaving child without reasonable supervision and care

Every person is liable to a fine not exceeding $2,000 who, being a parent or guardian or a person for the time being having the care of a child under the age of 14 years, leaves that child, without making reasonable provision for the

supervision and care of the child, for a time that is unreasonable or under conditions that are unreasonable having regard to all the circumstances.

[47]   We therefore make an order under s 234 of the Criminal Procedure Act 2011 quashing S’s convictions for abandonment and substituting, for each, a conviction for leaving a child without reasonable supervision and care.

[48]   On that basis, we deal only briefly with Mr Samuel’s supporting submission regarding the significance of the incorrectly — in his assertion — admitted propensity evidence. We are satisfied that the evidence had probative value in respect of the issues in dispute, notably whether S’s animosity spilled out into physical assaults.    D and K’s allegations clearly echoed the earlier offending. Given the overall gist of the factual narrative supporting the charges, in our view N’s 2004 EVI evidence and the fact of the convictions which followed were properly admitted as part of that overall narrative.

Sentence appeal

[49]   In sentencing S, Judge Wharepouri set a starting point of four years’ imprisonment.21 As he described it, that starting point responded to the “moderately serious” nature of S’s offending, including the lengthy period over which it occurred.22 In doing so the Judge distinguished the offending in R v W, a case pointed to by the Crown as particularly comparable, where a starting point of 12 years’ imprisonment had been adopted for some 39 charges of abuse of a wife and children.23 As the Judge observed, whilst having been committed over a shorter period of time, that offending was manifestly more serious than S’s.

[50]Turning to personal aggravating and mitigating factors, the Judge:24

(a)declined to uplift that starting point for S’s previous convictions, as they effectively involved the same pattern of behaviour that had resulted in the current charges; and

21     R v [S], above n 2, at [22].

22 At [22].

23     At [21], referring to R v W [2018] NZHC 117.

24     At [23]–[27].

(b)allowed discounts of four months for remorse, eight months for S’s efforts to rehabilitate herself, three months for time spent on bail and a further 12 months to reflect the difficult life she had had and the many challenges that had been placed before her, not of her making.

[51]   As Mr Samuel acknowledged, that was a generous approach to the available discounts. It totalled 27 months, that is 56 per cent, and resulted in the end sentence of 21 months’ imprisonment. We do not think that sentence can be criticised, given the basis upon which it was imposed. In saying that, we note we have carefully considered Mr Samuel’s proposition that the way the charges were laid, both expressly and in effect, as representative charges overstated the gravity of the offending overall.25 We acknowledge that the decision to lay representative as well as specific charges complicated matters. A more straightforward approach may have been to lay representative charges only, with the specific allegations constituting the evidence of the necessary incident of offending. It would then have been left to the Judge, in the usual way, to assess criminality overall. Having said that, the two relevant law changes over the period in question would still have had to be reflected. But we do not think the approach taken resulted in an overstatement of S’s criminality. As this Court has recognised:26

… s 195 recognises the realities of child abuse within a relationship of adult authority where the accumulation of wilful ill-treatment or neglect may be obvious although the causes may be practically incapable of proof as individual offences or even incidents.

So, the question for us at this point is whether the quashing of the abandonment convictions means that the end sentence of 21 months’ imprisonment requires adjustment.

[52]   In those circumstances we think a modest, but not immaterial, adjustment to the end sentence is called for. In our view, a reduction of two months is appropriate. We therefore quash S’s sentence of 21 months’ imprisonment and substitute it with one of 19 months’ imprisonment.

25     See, for example, charges 6, 6A, 7 and 7A.

26     R v Mead [2002] 1 NZLR 594 (CA) at [106].

[53]   We turn to the question of home detention. As the Crown submitted, the Judge very carefully considered this issue and did so against the background of a sympathetic approach to S’s offending, as reflected in the discounts he allowed. We are not persuaded we should reach a different view on that issue.

Result

[54]The appeal against conviction is allowed.

[55]   The two convictions for abandoning a child are quashed. Convictions for leaving a child without reasonable supervision and care contrary to s 10B of the Summary Offences Act are substituted.

[56]   The  sentence  of  21  months’  imprisonment  is  quashed.  A sentence  of   19 months’ imprisonment is substituted.

[57]The appeal is otherwise dismissed.

Solicitors:

Jennifer G Connell & Associates, Auckland for Appellant Crown Law Office, Wellington for Respondent