The Queen v Tania Tahi Maaka
[2002] NZCA 19
•26 March 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA352/01 |
THE QUEEN
V
TANIA TAHI MAAKA
| Hearing: | 19 March 2002 |
| Coram: | Blanchard J Salmon J Chambers J |
| Appearances: | S J Lance for Appellant J C Pike for Respondent |
| Judgment: | 26 March 2002 |
| JUDGMENT OF THE COURT DELIVERED BY SALMON J |
The appellant was convicted by a jury on three counts of unlawfully detaining or taking her two children, aged respectively three years and one year, whilst those children were subject to a custody order in favour of the Director-General of Social Welfare. Her then de facto husband was also convicted on the same counts.
The appellant was sentenced to six months imprisonment suspended for two years, six months periodic detention and 12 months supervision. She appeals against sentence the grounds being that the combination of the sentence is manifestly excessive. She submits:
That imprisonment was not appropriate or required or alternatively, the length of suspension was excessive.
The sentence of periodic detention was not necessary or alternatively, it was too long.
That a sentence of supervision with conditions was the appropriate sentence to impose in the circumstances.
In his submissions to us Mr Lance placed most emphasis on the claimed inappropriateness of the sentence of periodic detention.
On 26 January 2000 interim custody and restraining orders were made in the Taupo District Court relating to the two children, Mykalyla and Whai. The orders affected the appellant and her de facto husband, Mark Philip Harris, who was the father of the children.
The orders placed the children in the custody of the chief executive of the Children Young Persons and Their Families Service, but in the day to day care of the appellant. Initially the children’s father, Mark Harris was granted supervised visitation rights, but these were suspended in May 2000.
In June Mr Harris and the appellant attended a party in Hamilton with their children. Mr Harris left the address taking Mykalyla, the older child with him. The appellant became intoxicated at the party and was unable to care for Whai. She was found wandering around in the rain with the child. She was taken to a women’s refuge and Whai was placed in the care of the chief executive. As a result of meetings conducted between the appellant and CYPS staff, the appellant was allowed to have supervised visits with her son. In June 2000 after the second of these visits the appellant took her son and joined her partner and daughter in Whitianga. The appellant was located and her son taken from her. Her partner with their daughter, Mykalyla, absconded again. They were pursued by the police through various upper North Island towns during which time the appellant rejoined her partner. It was a further 33 days before she was located and arrested.
In his sentencing notes the District Court Judge noted that many family members had tried to help the appellant and her former partner, but they eventually gave up in frustration. The District Court Judge observed that the charges were serious and carried a maximum sentence of seven years’ imprisonment. He recorded that the pre-sentence report called for a rehabilitative sentence and he was prepared to accept that in part but considered as well that the sentence must have a deterrent aspect.
In his submissions Mr Lance told us that the appellant had been subject to abuse by Mr Harris and that he was serving a sentence of imprisonment for assaulting her when CYPS decided to intervene and obtain custody orders. He said that that intervention was not because they had fears that Ms Maaka was not an appropriate parent, but rather because of fears that she would continue her relationship with Mr Harris when he was released from prison. The evidence from CYPS was that it was clear that the appellant loved her children and that they loved her. Mr Lance says that during the period of time that the appellant looked after the children there is no suggestion that they were subjected to ill-treatment or neglect. He submits that the offending was motivated by the appellant’s emotional attachment to her children and her distress at losing them. He referred to the pre-sentence report which recommended rehabilitative rather than punitive measures as the more appropriate sentencing option. He submits too that the Crown at sentencing supported the recommendation in the pre-sentence report although we note that there is no reference to this in the Judge’s sentencing notes.
Mr Lance submits that the sentence of six months’ periodic detention is a lengthy term. He submits that the offending involved a distressed mother, that the intervention of CYPS does not come before the criminal courts often and that accordingly, deterrence is not a relevant consideration in sentencing.
Before us Mr Pike, for the Crown, submits that there was a serious risk of injury to the children during the abduction periods, not the least from the fact of the appellant’s drug-induced recklessness. The Crown submits that the Judge would have been justified in imposing a full-time custodial sentence of six months imprisonment and that he correctly balanced the concerns of rehabilitation and deterrence.
Since sentencing in the District Court the appellant has completed some of the courses required by the conditions of her supervision. She has attended Salvation Army Programmes, she has completed the Bridge Programme and has completed the Taha Maori Eight-Week Programme. She has also completed a Moving Forward Programme directed at personal relationships, conflict resolution and similar matters.
The interests of young children require that parents observe orders made as to custody and access. We accept that in some respects the appellant acted irresponsibly. We have no reason to doubt the submission of counsel that her actions in abducting the child and taking him to Whitianga were prompted by her concerns, as she saw the matter, for the child. We accept that it is desirable that the sentence imposed be primarily rehabilitative, but nevertheless, we agree with the District Court Judge that it is appropriate to include a punitive and deterrent aspect to that sentencing.
We are in a better position than the Judge was to accept the submission that the appellant is making genuine attempts to improve herself and to overcome the problems which led, at least in part, to the commission of the offences. In these circumstances we have concluded that there is not the same requirement for the punitive aspect of the sentence imposed as perhaps was present at the time of her sentencing in the District Court. We are, therefore, prepared to reduce the period of periodic detention to three months and consider that that will adequately reflect the necessary punitive and deterrent aspect of the sentence. In all other respects the sentence should stand.
Accordingly, the appeal is allowed to the extent that the period of periodic detention shall be three months. The first reporting is to be to the Taupo Periodic Detention Centre, 9 Taniwha Street, Taupo on Saturday, 6 April 2002 at 8.30 a.m. and thereafter as required.
Solicitors:
Lance Lawson, Rotorua for Appellant
Crown Law Office, Wellington
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