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.…

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 S (CA152/2020) v The Queen

Details

AGLC: S (CA152/2020) v The Queen [2020] NZCA 522
Case: [2020] NZCA 522
Decision Date: 23 October 2020 at 10.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal against conviction and sentence by S against her convictions for abandoning her children and her sentence of 21 months imprisonment. S was convicted on 17 charges of ill-treatment of her children, including two of abandonment. The appeal against conviction was based on the submission that the Judge misdirected the jury by failing to identify an essential element of that offence, and that the admission of the 2004 convictions as propensity evidence had been in error. The appeal against sentence was based on the submission that home detention, rather than imprisonment, was the appropriate response. The Court held that the Judge had erred when he directed the jury that the Crown was not required to demonstrate S intended to abandon her daughters in the permanent sense. The Court was satisfied that a properly directed jury would have acquitted S of abandonment. The Court quashed S's convictions for abandonment and substituted, for each, a conviction for leaving a child without reasonable supervision and care. The Court considered that a modest, but not immaterial, adjustment to the end sentence was called for, and substituted a sentence of 19 months' imprisonment.

Orders