The Queen v Hirchkop and Ash
[2006] NZCA 157
•6 July 2006
IN THE COURT OF APPEAL OF NEW ZEALAND
CA506/05
CA516/05THE QUEEN
v
WILLIAM DANIEL HIRCHKOP
LYNDA ASHHearing:31 May 2006
Court:O'Regan, John Hansen and Gendall JJ
Counsel:P J Kaye for Appellants
M D Downs for Crown
Judgment:6 July 2006
JUDGMENT OF THE COURT
The appeals against conviction and sentence are dismissed.
REASONS OF THE COURT
(Given by O’Regan J)
Introduction
[1] Kalin Staysa Saint Michael was born on 18 April 2000 and died on 15 July 2002, aged two years. The appellants, Mr Hirchkop and Ms Ash, were her parents. They were tried at the Manukau District Court on a charge that, between 20 February 2002 and 15 July 2002, without lawful excuse, they neglected the duty to provide necessaries for Kalin, a child aged two years and in their custody, so that the life of Kalin was endangered. They were found guilty, and each was sentenced to imprisonment for a term of two and a half years by the trial Judge, Judge McAuslan.
[2] The appellants appeal against both conviction and sentence.
Facts
[3] Although Kalin had been in the care of Child Youth and Family (CYF) from August 2000 to February 2002, she was returned to the custody of the appellants in February 2002.
[4] On 15 July 2002 Ms Ash called an ambulance, reporting that Kalin had stopped breathing. The appellants arranged to meet the ambulance, and when this meeting took place the ambulance staff found that Kalin had died. A post mortem examination revealed that the cause of death was pneumonia. However, Kalin also had a large subdural blood clot over the left hemisphere of the brain and a transverse fracture of the radius and ulna bones of the right forearm.
[5] We were told by Crown counsel that the appellants were not charged with homicide because it could not be established that any action or inaction on the part of the appellants had caused Kalin’s death.
Crown case
[6] The Crown’s case was that the appellants must have known of Kalin’s injuries (both the brain injury and the broken arm) because of the nature of the symptoms of the injuries. The cause of the injuries was not an issue, nor was the issue as to whether the injuries were causative of Kalin’s death.
The defence case
[7] The defence case was that the Crown had not proven that the symptoms of Kalin’s brain injury and broken arm would have been such that the appellants would have known that Kalin needed medical attention.
The expert evidence
[8] There were five expert medical witnesses called by the Crown at the trial. The evidence of one of these witnesses, Paul White, a consultant paediatric radiologist at Starship Children’s Hospital, was read by consent. His evidence was that the best estimate of the age of the fractures to Kalin’s arm was between two and four weeks. He said it was an unusual injury for a child of that age, and was likely to have been caused by a direct blunt blow to the front or back of the wrist or forearm, or a fall on to the back of the hand.
[9] The evidence of the other expert witnesses is summarised in the paragraphs which follow.
Dr Kelly
[10] Niall Kelly is a consultant paediatrician at Starship Children’s Hospital and an honorary clinical senior lecturer in paediatrics at the University of Auckland.
[11] In relation to the broken arm, Dr Kelly’s evidence was that:
· After a period (a matter of hours) there would be evidence of swelling;
· Most children would scream or cry out, or otherwise show obvious signs of pain;
· All children would refuse to move or use the affected arm;
· The pain would remain as long as the fracture remained unstable – if the fracture was not immobilised this pain could remain for a matter of weeks;
· After reviewing the x-ray, his impression (although he could not be 100% certain) was that the fracture was still likely to have been unstable at the time of death.
[12] In relation to the head injury, Dr Kelly’s evidence was that:
· This was a serious head injury;
· There was sufficient force to make the brain move abruptly or violently within the skull so that there was tearing of the subdural vein as it crossed the subdural space;
· There would have been both immediate and delayed symptoms as a result of this;
· Delayed symptoms would have occurred as the bleeding continued to the point that the collection of blood essentially became what is called a “space occupying lesion” – a mass within the skull which the skull cannot expand to accommodate. The necessary consequence of this is that the mass compresses the brain beneath it. This always causes swelling of the brain, and the force that caused the subdural vein to tear may itself also cause swelling on the brain;
· This pressure and swelling would have caused “very, very significant symptoms”. In his prior experience, the only children he had seen with injuries of this nature were on a ventilator in intensive care;
· Expected symptoms would be:
-A progressive deterioration in the child’s level of consciousness – from being fully conscious to comatose. As such, the child might initially be merely irritable and lethargic, or make nonsensical replies to questions; the next stage might be that the child would not open their eyes, or respond only to pain; the final stage might be that the child is essentially stationary, still breathing but entirely unresponsive;
-In the instant case, Dr Kelly would have expected Kalin to have lapsed into a coma as the subdural blood clot increased in size and as the swelling increased;
-Even with intensive hospital treatment, a child in this condition would be expected to remain in a coma for a day or two.
Mr Law
[13] Andrew Law is a paediatric neurosurgeon. He is currently the clinical director of paediatric neurosurgery at Starship Children’s Hospital.
[14] Mr Law’s evidence was that:
· The size of the clot, and the response of the brain underneath, will determine the range of symptoms that a patient will display;
· Even with a small amount of swelling, children will be symptomatic, as the size of their brain is larger relative to that of adults;
· Likely symptoms include sleepiness and vomiting where there is a small amount of swelling;
· As the clots get bigger, children will be more somnolent and less easy to rouse;
· With large clots, children become extremely difficult to rouse, and can suffer from dilated pupils, compressed cranial nerves and strokes (which can reduce or stop movement on one side of the body), before the brain stem becomes compressed and the patient is unable to breathe;
· The clot suffered by the deceased was, according to the pathological evidence, sufficient to cause Mr Law to expect the deceased to be “very sick”. If a patient with a clot that size were presented to him, he would order immediate surgery.
Dr Koelmeyer
[15] Timothy Koelmeyer is a qualified and registered medical practitioner who is currently practising as a forensic pathologist.
[16] Dr Koelmeyer performed an autopsy on the deceased on 15 July 2002. His evidence was that:
· There was a collusion of blood amounting to 75.7 grams between the brain and the membrane which surrounds the brain. This had been there for some three weeks at the time of death (although he could not be precise about this);
· At some point prior to death there had been a pressure effect on the blood supply to the left side of the back of the brain – the part which controls vision on the right side of the body;
· Symptoms usually associated with an injury of this character is a loss of conscious state and “pretty rapid deterioration”;
· A search of historic literature revealed a report by a neurosurgeon (Rowbottom) which described the case of a seven year old who developed a similar injury and did not produce “remarkable symptomatology”;
· The deceased had consumed food only hours before her death;
Dr Synek
[17] Beth Synek is a qualified and registered medical practitioner who is currently practising as a forensic neuropathologist.
[18] She examined photographs of the deceased’s brain and some microscopic slides from the autopsy. Her evidence was that:
· The state of the blood clot suggested that it was not fresh, probably occurring three to four weeks prior to death (although she admitted in cross-examination that determining the age of clots is an imperfect and uncertain exercise);
· A blood clot of this size was “pretty large” considering the age of the deceased;
· When there is bleeding over the brain surface such as occurred here, the brain begins to swell, which can lead to further deterioration or complications;
· The area of the brain that supplies vision was affected, as was the ability of the brain to interpret signals from the eye. As such there would have been a loss of vision on the left hand side, although this is difficult to test for with a child;
· While not clear, it was possible that another portion of the brain was affected – this would have weakened the left side of Kalin’s body;
· The swelling (if there was any) appeared to have corrected itself. This was an “extraordinarily rare situation”, as it was extremely unusual to see “someone outside a hospital setting who actually has an indication of pressure on the brain but which has corrected itself”;
· As to the symptoms which may have been exhibited by the deceased, Dr Synek’s evidence was in line with the other medical experts.
Events prior to trial
[19] The trial commenced on 31 October 2005. On 29 September 2005, an application had been made to Judge Harvey for an adjournment of the 31 October fixture. The reason for the adjournment was that Mr Hirchkop’s then counsel was to be out of New Zealand at the time of the trial for unavoidable personal reasons. The Judge noted that the trial had initially been set down for 7 June 2004 but Mr Hirchkop’s counsel had withdrawn just over two weeks before the trial and his new counsel applied for an adjournment four days before the trial was due to begin on the basis that he lacked time to prepare. The trial was then set down for 14 February 2005 but because of issues about medical evidence being ready, that date was also set aside. The Judge considered that, given that there was over a month for new counsel to be instructed, it was feasible for the new counsel to be properly prepared in time for the trial. He therefore declined the adjournment.
[20] On 13 October 2005, another application for adjournment was made. At that stage Mr Kaye had been briefed, but said he was unable to instruct a paediatric neurosurgeon and neuropathologist on behalf of the defence, if any were available. The adjournment was not granted or refused on that date, but was subsequently refused. Mr Hirchkop then instructed Mr Ryan QC to act for him, and Mr Ryan was his counsel at trial.
[21] Counsel for Ms Ash at trial was Mr Hart. He was instructed well before the trial.
Evidence adduced at the appeal
[22] Both parties sought leave to adduce further evidence for the purpose of the appeal, and we granted leave. We had before us affidavits from Mr Hirchkop (two), Ms Ash (two), Mr Hirchkop’s trial counsel, Mr Ryan, Ms Ash’s trial counsel, Mr Hart and Professor Clive Harper, a neuropathologist and director of neuropathology at the University of Sydney. Mr Hirchkop, Ms Ash and Mr Hart were cross-examined, but Mr Ryan was not required for cross-examination.
Appeal against conviction: grounds of appeal
[23] Counsel for the appellants, Mr Kaye, submitted that a miscarriage of justice had occurred in the following respects:
(a)Expert medical evidence should have been called as part of the defence case. The trial counsel failed to comply with instructions to call expert medical evidence and the failure to call this evidence was fatal and resulted in a miscarriage of justice;
(b)A jury member was dismissed during the course of the trial, in circumstances in which the possibility of jury contamination arose. The failure of trial counsel to apply for a mistrial and/or to apply that the jury be polled resulted in a substantial miscarriage of justice;
(c)The refusal by Judge Harvey to grant an adjournment prejudiced the appellants’ ability to prepare their defence and this led to a miscarriage of justice.
[24] The second and third grounds of appeal can be dealt with briefly, and we will therefore consider them first.
Discharge of juror
[25] In his affidavit Mr Hirchkop said a female juror was discharged because it was discovered she was a social worker from Work and Income New Zealand (WINZ), Papakura office, which shares the same office space as CYFS. He said the juror had been involved in investigations in respect of Ms Ash’s right to benefit entitlements, and that those investigations had come about following a briefing from CYFS, which was investigating Ms Ash and Mr Hirchkop in relation to issues involving the care of their other children.
[26] Mr Hirchkop said the Judge made no enquiries of the dismissed juror or the remaining jurors as to contamination, and would not agree that a mistrial had occurred.
[27] At the request of counsel a direction was made to the Registrar to request a report from the trial Judge as to the circumstances of the discharge of the juror under r 17 of the Court of Appeal (Criminal) Rules 2001. Judge McAuslan provided a report, which included a full transcript of her discussion with counsel at the time that the discharge of the juror took place. This happened on the morning of the second day of the trial. The transcript reveals that, at the commencement of the second day of the trial, the juror’s concern that she remembered a Lynda Ash from an investigation at WINZ was drawn to the attention of the Judge. The Judge established that the juror was not with the other 11 jurors at the time she remembered having been involved with Ms Ash. The Judge then consulted with counsel. Initially it was proposed that the Judge would question the juror to get more details of her involvement, but after discussion with counsel it was decided that it was appropriate to excuse the juror and, with the consent of all counsel, the Judge did so.
[28] Having considered the transcript provided by the Judge it is clear to us that there is nothing in this ground of appeal. The Judge satisfied herself that the juror was separate from the other jurors, consulted with counsel, determined that on the basis of the information available there was a problem which was best dealt with by excusing the juror, and did so. The only possible criticism which could be made was that the Judge did not specifically ask the juror to confirm that the juror had not mentioned the matter to any other juror. But the nature of the revelation by the juror was such that it was clear that the problem had dawned on her overnight, and as the Judge had satisfied herself that the juror was apart from the rest of the jury, she was entitled to be satisfied that no question of contamination arose. We therefore reject this ground of appeal.
Adjournment
[29] We are satisfied that no miscarriage of justice arose from the refusal of the adjournment by Judge Harvey. There was, of course, no basis for any concern in relation to Ms Ash, because her counsel, Mr Hart, was not affected by the withdrawal of Mr Hirchkop’s counsel. While Mr Ryan was faced with a short period of time in which to prepare for trial, there is nothing in his affidavit before us that indicates any concern on his part about the nature of his preparation. We are satisfied that no miscarriage of justice resulted from the refusal of the adjournment.
[30] Having said that, we accept Mr Kaye’s submission that the refusal of the adjournment is one of the factors which must be taken into account in considering the main ground of appeal, namely the alleged failings of counsel to call medical evidence.
Failure to call medical evidence
[31] The ground of appeal which was pursued in the written submissions provided to us was to the effect that there had been errors by the appellants’ trial counsel in failing to call medical evidence and failing to deal properly with the juror contamination issue. (The second of these grounds dissipated when the true account of events became available through Judge McAuslan’s report). Thus the point of appeal was that a miscarriage had occurred because of a fundamental error by trial counsel, in the sense described in R v Sungsuwan [2006] 1 NZLR 730 (SC). However, after the Crown filed the affidavits of Mr Hart and Mr Ryan, and Mr Hart had been cross-examined, Mr Kaye sought to shift his ground on this aspect of the appeal. As recast, the ground of appeal was that there was now fresh evidence available (from Professor Harper) which was not available at trial, in circumstances where its unavailability has caused a miscarriage of justice in terms of s 385(1)(c) of the Crimes Act 1961.
[32] Mr Kaye submitted that there was never any question, particularly in the light of the evidence given at the preliminary hearing, that medical evidence needed to be called in support of the defence. He said the instructions of the appellants were clear on this point: both continually asked their respective counsel to progress this matter, but these instructions were not complied with. In relation to Mr Hart, it was even suggested that funds had been provided to Mr Hart to engage a medical expert, but he had still failed to do so.
[33] In evidence Mr Hirchkop said that he repeatedly instructed Mr Hart to obtain an expert medical witness, and specifically instructed Mr Hart to engage Professor Harper for that purpose. Of course, Mr Hart was not acting for Mr Hirchkop, and was not therefore in a position of being required to comply with his instructions.
[34] Mr Hirchkop said that he contacted Professor Harper just before the trial, but Professor Harper indicated that he would not be available.
[35] Ms Ash’s evidence was that she also instructed Mr Hart to call a medical expert, and additional money was paid to Mr Hart for this purpose. She said Mr Hart was given Professor Harper’s details at least three months before the trial. After Mr Hart’s affidavit in reply had been obtained, an additional affidavit from Ms Ash was filed, in which she accepted that she had not directly instructed Mr Hart to approach Professor Harper, but said that Mr Hart had suggested that she approach Professor Harper herself.
[36] Mr Ryan’s affidavit in reply states unequivocally that he was not instructed by Mr Hirchkop to engage a medical expert, or to engage Professor Harper specifically. He said that he discussed medical experts with Mr Hirchkop, that Professor Harper’s name was mentioned, but that Mr Hirchkop informed him that Professor Harper was not available. He said that a lawyer who had acted for Mr Hirchkop at an earlier stage in the proceedings had obtained a report from a paediatric neurologist but this had supported the Crown evidence. Mr Ryan said he approached another medical witness suggested by Mr Hirchkop, but that person had indicated that he was retired from practice and could not be involved.
[37] Mr Ryan also said that he had discussed with three medical practitioners a video of Kalin, which Mr Hirchkop claimed had been taken after the fall which caused Kalin’s injuries, and the medical evidence relating to Kalin’s arm. He said that each of these doctors had said that the child would have been in pain as a result of the arm injury and could not have behaved as the appellants claimed. He said the doctors agreed with the symptoms stated by Dr Kelly and Mr Law.
[38] Mr Ryan was not called for cross-examination. We accept his evidence. We are satisfied that he did not fail to comply with instructions given to him by his client Mr Hirchkop. And we are satisfied that, in the circumstances in which he was instructed close to the trial, there can be no proper criticism of his conduct of Mr Hirchkop’s defence. It is one thing to say that medical evidence rebutting the evidence given by the Crown experts would have helped the defence case. But it is quite another to say that counsel must find such evidence when the experts to whom counsel has spoken are unable to give evidence favourable to the defence.
[39] In his affidavit, Mr Hart takes strong issue with the evidence of Mr Hirchkop and Ms Ash. He says that in accordance with Ms Ash’s instructions, he sought three expert medical opinions for the defence: from a forensic pathologist, a paediatric neurologist and a paediatrician. Copies of the reports received from these experts were annexed to his affidavit. In all three cases, the experts concluded that Kalin would have been showing obvious signs of the need for medical attention. In other words, their evidence was not helpful to the defence.
[40] Mr Hart denied that Ms Ash ever instructed him to approach Professor Harper. He also denied that Ms Ash had ever paid him money to engage expert medical opinions or witnesses. He said that Mr Hirchkop had sent him a facsimile a few days before the trial, to which was annexed information on ten possible expert witnesses, one of whom was Professor Harper. However, he said that neither Ms Ash nor Mr Hirchkop discussed Professor Harper with him during the trial.
[41] Mr Hart was cross-examined before us. He accepted that there had been discussions with Ms Ash about medical experts, but said that it was “palpably false” that he had been provided with details of Professor Harper at least three months before the trial. He said the first time he had been made aware of Professor Harper was on 25 October, a few days before the trial. He also denied that there was any discussion with Ms Ash about Professor Harper, and denied telling her to approach Professor Harper herself. He also denied that there was any discussion at all about money being provided for the purpose of engaging Professor Harper or any other expert.
[42] In cross-examination Mr Hirchkop accepted that Mr Hart was not his lawyer, and that therefore he was not in a position to give instructions to Mr Hart. When pressed as to when he first made contact with Professor Harper he said “around October 2005”. When pressed further he accepted that it was probably after 25 October. This is consistent with Mr Ryan’s evidence and with contemporary correspondence between Mr Hirchkop and Mr Ryan.
[43] However he maintained his position that Professor Harper’s name had been given to Mr Hart some months before trial.
[44] In cross-examination Ms Ash also maintained that Mr Hart had been told about Professor Harper some months out from trial, but she was unable to give any detail. Both Mr Hirchkop and Ms Ash were asked about the alleged payment of money to Mr Hart, but were unable to give any details other than that this had been done by an unspecified family member whom they were unable to identify.
[45] Having considered the affidavit evidence and seen and heard the witnesses under cross-examination, we conclude that neither counsel was instructed specifically to call Professor Harper as a witness. Thus neither failed to act on an instruction given by his respective client in that regard. We accept that there was an intention to call a medical expert, but that the efforts of defence counsel to identify an expert who could give evidence contrary to that of the Crown experts failed. They cannot be criticised for not calling experts in circumstances where their enquiries did not successfully identify experts who could assist the defence. We do not accept the evidence of Mr Hirchkop and Ms Ash criticising their counsel. In particular, we reject the assertions by Mr Hirchkop and Ms Ash about the payment of money to Mr Hart to engage a medical expert.
[46] We conclude that trial counsel did not fail to act on instructions nor did either counsel make a fundamental error in not calling medical evidence. Their efforts to identify medical witnesses failed and in those circumstances they cannot be criticised for their actions.
Fresh evidence
[47] We now turn to the alternative basis on which this ground of appeal was pursued by Mr Kaye in oral submissions. In essence, he argued that there was now evidence available from Professor Harper which, if it had been available at trial, could have affected the outcome.
[48] Professor Harper’s affidavit is brief. After reciting his considerable qualifications and professional achievements, he says:
· He is aware of the medical circumstances surrounding Kalin’s death;
· He was in contact with Mr Hirchkop prior to trial;
· He understood he was to be involved at the trial and expected to be contacted by defence counsel before trial but was not. Consequently he did not prepare an opinion;
· He has reviewed the file and there were “distinct neuropathology considerations which should have been canvassed with medical experts called by the Prosecution as well as additional evidence presented on behalf of the defence”. There was a failure to conduct an examination of the eyes of the deceased child in order to determine whether there were haemorrhages, and there were pathology issues relating to the content of the child’s stomach and the ability of the child to consume food in a neurologically affected state. He said this fact was significant in determining timing associated with a conscious state.
· He is in a position to review the forensic evidence and “suffice to say that there were definitely pathology considerations relating to this child’s death that should have been before the jury and that could have assisted the defence position”.
[49] However, he does not specify what the pathology considerations were, or how they could have assisted the defence position. In particular, he does not give any indication as to what he could have said about the symptoms of Kalin’s injuries and the visibility of those symptoms prior to Kalin’s death.
[50] The test for admission of new evidence in these circumstances was recently restated by this Court in R v Bain [2004] 1 NZLR 638 at [22] in the following terms:
An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is: (a) sufficiently fresh; and (b) sufficiently credible. Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh. This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice. The public interest in preserving the finality of jury verdicts means that those accused of crimes must put up their best case at trial and must do so after diligent preparation. If that were not so, new trials could routinely be obtained on the basis that further evidence was now available. On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been. The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.
[51] Of course, that test required evaluation of the evidence by this Court to determine its cogency and credibility. There is, in fact, nothing cogent or credible before us from Professor Harper because he simply indicates that he may have been able to say something, but does not actually say it. This perhaps illustrates the extent to which the appellants’ stance shifted during the course of the oral argument.
[52] When confronted with the reality that an argument based on fresh evidence could not succeed in the absence of actual evidence, Mr Kaye asked the Court to adjourn the appeal so that he could approach Professor Harper and seek a report which could be placed before the Court as fresh evidence. Not surprisingly, that request was strongly opposed by the Crown on the basis that the appellants were really seeking an opportunity to restart their appeal in the light of the obvious difficulties which had arisen with the grounds of appeal initially put forward.
[53] We are satisfied that an appeal based on new evidence must fail on the material that is currently before the Court for the simple reason that there is no new evidence. We are also satisfied that it is not appropriate to grant an adjournment in this case, for the following reasons.
[54] First, the proposed evidence of Professor Harper is not fresh in the sense envisaged by Bain. It is apparent that the appellants were aware of the need for expert evidence and that their counsel made efforts to obtain it. It is also clear the appellants knew of Professor Harper before trial. His evidence, whatever it may be, was therefore “available” in the commonly understood sense.
[55] Secondly, the Professor does not contest the Crown evidence at trial. He indicates that he can say something (not specified) about the head injuries, but makes no mention of the arm injuries which were an important part of the Crown case. The Crown’s expert evidence on that aspect of the case would therefore have remained unanswered even if Professor Harper had been able to give evidence favourable to the appellants on the symptoms of the head injury. In those circumstances we can see no prospect of this ground of appeal succeeding and do not therefore consider it appropriate to adjourn the appeal to allow the appellants to recast the appeal and, effectively, start again.
[56] Thirdly, the appellants’ trial counsel attested to efforts made by them to obtain expert evidence which failed because the experts approached were unable to contradict the evidence of the Crown experts. Notwithstanding the evidence of Professor Harper about the possibility of his being able to say something helpful to the appellants’ position, the reality is the appellants faced a very strong Crown case supported by a number of expert witnesses and, it seems, a number of other qualified experts who were approached by the defence but not called. It was also supported by evidence of a friend of Ms Ash’s to the effect that Ms Ash had told her some time before Kalin’s death that Kalin had suffered a stroke. In addition a friend of Mr Hirchkop gave evidence that Mr Hirchkop had told him Kalin had had an accident and that he (Mr Hirchkop) was worried about her.
[57] The evidence of the appellants in this Court disclosed much discussion about expert testimony without any tangible result. They had the opportunity to put before the jury evidence countering the Crown’s case against them at trial, but did not take it. Now they have had the opportunity to advance such evidence on appeal and again have not taken it. In our view it is time to bring this sad tale to an end.
Result
[58] We dismiss the appellants’ appeal against conviction.
Sentence appeal
[59] As noted earlier, the appellants were sentenced to imprisonment for a term of two and a half years.
[60] At sentencing, Judge McAuslan noted that there were very favourable pre-sentence reports about both appellants. However, imprisonment was the recommended sentence. The Judge referred to the relevant provisions of the Sentencing Act 2002, and noted the particularly aggravating feature was the very young age of Kalin, and her vulnerability and dependence on the appellants for survival. She referred to the evidence presented at trial as to the knowledge of the injuries suffered by Kalin which the appellants must have had.
[61] The Judge considered a number of cases, none of which was directly on point, and determined that the appropriate starting point for the offending in the case of both appellants was three years imprisonment. She gave a discount to each of six months to reflect their positive pre-sentence reports and lack of prior record (although Mr Hirchkop had one previous conviction for an offence of violence which was over ten years old) and determined that the appropriate sentence was two and a half years imprisonment.
[62] Mr Kaye submitted that the sentence was manifestly excessive, and referred us to the sentence imposed in R v Waiba HC AK T.025743 8 August 2003 where a parent who had pleaded guilty to a charge of manslaughter of her son was convicted and discharged. In oral submissions he stressed that the offence in this case was one of omission not commission, and that there was no evidence that the appellants had done anything which was causative of Kalin’s death. He suggested that the starting point ought to have been between 18 months and two years imprisonment in this case, and the final sentence should have been about 15 months imprisonment.
[63] Mr Downs said that the Judge’s starting point was appropriate. He said there was no cases directly on point, and that Waiba provided no assistance given the particular facts of that case. He accepted that the offending was of considerably less significance than conduct causing death, but said that the Judge’s response was a fair reflection of the seriousness of the offending in this case.
[64] We can see no error in the Judge’s approach, and the sentences were, in our view, appropriate to the circumstances of this case. We considered whether a case could be made for a lower sentence for Ms Ash than for Mr Hirchkop, given that Ms Ash had no previous convictions. Ultimately we have concluded that if any criticism could be made of the sentences, it would be that the sentence for Mr Hirchkop was too low rather than that for Ms Ash was too high. We do not think there is any issue of disparity in this case (and no suggestion to that effect was made in argument) and conclude that there is no basis for us to interfere with the sentence imposed by the Judge.
Result
[65] We therefore dismiss the appellants’ appeals against conviction and sentence.
Solicitors:
Crown Law Office, Wellington
0
0
0