A three year old boy was placed by his mother in the temporary care of the appellants, Tania Shailer and David Haerewa. Two months later the little boy was dead. His name was Moko Rangitoheriri. There is no doubt that the appellants killed him. Charged initially with murder, they later pleaded guilty to his manslaughter and ill‑treatment.[1] Katz J sentenced them each to 17 years’ imprisonment, with a minimum period of nine years.[2] They now appeal those sentences.
8Principles of sentencing or otherwise dealing with offenders
In sentencing or otherwise dealing with an offender the court —
(a)must take into account the gravity of the offending in the particular case, including the degree of culpability of the offender.
(b)…
(c)must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate.
…
Was this case “within the most serious of cases” of manslaughter? That question arises both generally and specifically in relation to Ms Shailer who was otherwise of good character, but suffers some mental health disorders.[3] Do those disorders mean that her level of culpability is reduced, so that in her case at least this is not within the most serious of cases of manslaughter (and so alter the starting point for her sentence)?[4] And in the case of Mr Haerewa, is his offending less serious than Ms Shailer’s, so that his offending too is not within the most serious of cases of manslaughter? These questions concerning the sentence starting point are the primary questions in this appeal.[5]
[3]We put to one side as immaterial an historic shoplifting conviction.
[4]It is uncontested that Ms Shailer’s mental health may affect the end point of the sentence as a consideration or circumstance concerning the offender.
[5]These primary issues are discussed at [40] to [69] below.
The maximum penalty for manslaughter is life imprisonment. In this case Katz J adopted a starting point of life imprisonment for both appellants. However she concluded for the purpose of s 8(c) that circumstances relating to the offenders made it inappropriate that the end sentence also be life imprisonment. The primary reason was the early plea of guilty on the charges…
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 Shailer v R
Sign in free to access the full text
Details
AGLC
Shailer v The Queen [2017] NZCA 38
Case
[2017] NZCA 38
Decision Date
CaseChat Overview and Summary
The appeals against sentence were brought by Tania Shailer and David Haerewa, who were convicted of the manslaughter and ill treatment of a three year old child, Moko Rangitoheriri. The Court of Appeal dismissed the appeals. The appellants had been sentenced to 17 years imprisonment, with a minimum period of nine years. The appeal concerned whether the starting point of the sentence should have been life imprisonment and whether the discounts from that starting point were adequate. The Court found that the starting point of life imprisonment was correct because this was one of the most serious cases of child manslaughter. The appellants had assaulted Moko continuously over a period of six weeks and created a culture of violence against him. The Court found that Tania Shailer's mental health issues did not materially diminish her culpability and that David Haerewa's culpability was no less than Ms Shailer's. The Court found that the discounts from the starting point of life imprisonment were adequate. The minimum period of imprisonment was also not excessive.