The Queen v Waterhouse

[2004] NZCA 63

IN THE COURT OF APPEAL OF NEW ZEALAND

CA33/04

THE QUEEN

v

MICHAEL SHANE HAMAHONA WATERHOUSE

Hearing:28 April 2004

Coram:Chambers J
Panckhurst J
Laurenson J

Appearances:  R M Mansfield for Appellant

F E Guy for Crown

Judgment:13 May 2004 

JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J

INTRODUCTION

[1]       Following a trial at which he was acquitted of murder but found guilty of manslaughter the appellant, on 17 December 2003, was sentenced to ten years imprisonment.  A non parole period of six years was also ordered.  This appeal is against such sentence.  The grounds of appeal are that the trial Judge adopted a starting-point which was beyond the available range and made an inadequate deduction on account of the appellant’s early offer to plead guilty to manslaughter and on account of other mitigating circumstances.  Should either, or both of the grounds of appeal be upheld, the minimum non parole period is challenged as well.

The background

[2]       The appellant was charged that he murdered Tamati, a boy aged 3 years 10 months, who with his younger brother lived in the appellant’s home pursuant to a foster care arrangement.  The two boys were placed with the appellant and his wife prior to Christmas 2001.  Five children of the Waterhouse family aged from 17 to 3 years also resided in the home.

[3]       Tamati attended a day care centre.  He went there on the relevant day, 29 April 2002.  The appellant’s wife uplifted Tamati from day care at about midday.  Upon returning home and while he was eating his lunch the appellant noted popcorn in Tamati’s lunchbox.  He asked the child where the popcorn came from, since he knew that it had not been provided by his wife or himself.  Tamati responded that he got it from nobody.  When this answer was repeated the appellant took hold of Tamati’s arm and required him to stand up.  His wife endeavoured to intervene, but was told to go away, which she did.  At this point the child was pulled across a lounge chair so that his back was resting on the arm of the chair leaving his stomach in an exposed position.  According to the appellant in his statement to the police he then punched Tamati four times to the stomach, blows which he acknowledged were severe because they caused the child to make a groaning sound and the veins on either side of his neck to bulge out.  The appellant added that he could see that Tamati was in a ton of pain. 

[4]       After this the appellant feared that he had injured Tamati who continued to give indications of being in considerable pain.  The appellant endeavoured to shower the child, then put him to bed, later carried him to the toilet to enable him to vomit and returned him to bed when he became “all floppy".  Tamati lapsed into unconsciousness, the appellant told his wife to phone an ambulance, but upon the arrival of ambulance officers nothing could be done since Tamati was already dead.

[5]       A post mortem examination was conducted the following day.  The cause of death was a ten centimetre laceration of the small intestinal mesentery.  Such injury occasioned major blood loss and caused Tamati to go into a state of shock and to exhibit what the pathologist considered were classic signs associated with shock, being pallor, sweatiness, faintness and eventual loss of consciousness.  Although the fatal internal injury and the bruising associated with it were consistent with the force described, the pathologist doubted that only four punches had caused such injuries.

[6]       In addition the examination revealed the existence of a pattern of injuries to other parts of Tamati’s body.  These included bruises to the head, multiple small lacerations and bruising to the internal surface of the lips, bruises to the back, buttocks, arms and both legs.  These the pathologist described as consistent with non-accidental trauma and of a similar age to the fatal injury.  All the injuries, she considered, were fresh and had occurred at the same time.  It necessarily followed that Tamati had received a general beating, rather than just the admitted four heavy punches to the stomach.

[7]       The indictment preferred against the appellant contained a single count of murder.  There were two trials.  At the first in July 2003 the jury were unable to agree.  At the second in November of that year a verdict of guilty of manslaughter resulted.  Both trials proceeded on the basis that the appellant accepted his guilt of manslaughter, but denied murderous intent.  Such was conceded before the jury when counsel, Mr Mansfield, made opening statements.  Moreover, it is common ground that the appellant through counsel offered to the Crown a plea of guilty to manslaughter at the time of the preliminary hearing.

The sentencing decision

[8]       Heath J, the trial Judge, sentenced the appellant on 17 December 2003.  With reference to the evidence given at trial the Judge indicated that he was satisfied beyond reasonable doubt that the appellant suddenly and inexplicably lost control of his senses and temper when Tamati was not truthful concerning the source of the popcorn in his lunchbox.  The Judge was not persuaded that the arm of the lounge chair was intentionally used to render Tamati more vulnerable to the blows, but he considered that there was a degree of calculation in the method employed.  With reference to the findings of the pathologist the Judge expressed himself satisfied that the violence suffered by Tamati at the appellant’s hands went further than the four blows to which he admitted in his police statement. 

[9]       A number of aggravating features of the offending were identified.  These included that the appellant was a heavily built man (95-100 kilograms) aged 39 years whereas his victim was a child under four years weighing 18 kilograms, that the use of the lounge chair was calculated, that there had been additional violence as indicated by the general bruising to the child’s body, that Tamati was a vulnerable child placed in the appellant’s care and protection and that the offending constituted a major abuse of trust.  The Judge also recorded his assessment that on the basis of the evidence the assistance rendered to Tamati after the event was grossly inadequate in a situation where prompt medical assistance might have prevented his death.

[10]     As to mitigating factors the Judge acknowledged that the appellant had no prior convictions, was a man of previous good character, was deeply remorseful about the death and that he had been prepared to plead guilty to manslaughter at an early stage.

[11]     After reference to various sentencing principles in the Sentencing Act 2002 and to the judgment of a Full Court in R v Leuta [2002] 1 NZLR 215 (CA) as providing the guideline for the sentencing, the Judge adopted a starting-point of twelve years imprisonment. From this he deducted a period of two years to reflect the mitigating factors and thereby arrived at the sentence of ten years imprisonment. In relation to a minimum non parole period the Judge was satisfied that the statutory threshold was crossed, in that he considered the presumptive period for eligibility for parole was too short a time to denounce the offending and provide deterrence and punishment. A minimum term of imprisonment of six years was therefore imposed.

Counsel’s submissions

[12]     In a succinct but effective submission Mr Mansfield raised two arguments in support of the appeal.  These were:

[a]that the starting-point of twelve years imprisonment adopted by the Judge was excessive, and in particular could not be justified having regard to the guideline judgment in Leuta,  and

[b]that the deduction of two years from the starting-point was inadequate to reflect the appellant’s offer to plead guilty to manslaughter at an appropriately early stage and his previous good character.

Counsel raised a third argument which was necessarily dependent upon a successful outcome in relation to the principal grounds of appeal, namely that the minimum period of imprisonment of six years was also excessive.  In concrete terms Mr Mansfield argued that the case justified a starting-point of no more than ten years imprisonment and that after allowance for the mitigating factors a sentence between seven and eight years imprisonment was both appropriate and consistent with previous authorities.

[13]     Ms Guy, for the Crown, supported the starting-point adopted of 12 years and stressed that it was one arrived at by a trial Judge who had heard the evidence.  She submitted that the facts of the case fully justified the starting-point, which was also within the available range identified in Leuta.  In other words counsel did not accept that Leuta gave rise to a ceiling of ten years imprisonment by way of the starting-point in cases such as the present.  With regard to the deduction for mitigating features, counsel submitted that the two year allowance was in line with Leuta, consistent with other authorities and unexceptional when expressed on a percentage basis (about 16%), since an offered plea to manslaughter in the context of the murder trial should not attract the same level of discount as may be appropriate in other situations.

Discussion

The starting-point

[14]     Since the submissions of counsel were made with close reference to the Full Court decision in R v Leuta, it is convenient to begin by reference to that case.  Two Solicitor-General appeals against sentence were heard together.  A review of sentencing levels for manslaughter was sought with reference to two categories of cases, one of which (Leuta) concerned child manslaughter. In the event the Court declined to prescribe a starting-point guideline for child manslaughter. Gault J in delivering the judgment of the majority said at paragraph [59]:

We are satisfied that the best guidance for sentences in these manslaughter cases is to be found in earlier sentencing decisions in similar cases rather than in a guideline starting-point for sentences involving one or a limited number of identified features.  We decline the Solicitor-General’s invitation to set a guideline as he proposed.

[15]     Earlier the Judge explained the concerns of the majority which prompted this view, including that a guideline starting-point would have little value unless it was accompanied by closely specified features of the offending for the assistance of sentencers.  There was then a risk that a guideline would lead to inflexibility and would divert the sentencing inquiry away from an anxious assessment of the degree of culpability involved.  A concern also existed that the variety of circumstances which arose in child manslaughter cases was such as to render a guideline difficult of application.

[16]     Despite the conclusion which the majority reached, the reasons given for allowing the Solicitor-General’s appeal in relation to Mrs Leuta are of considerable assistance in the present case.  There were a number of factual similarities.  The victim was a boy aged about four and a half years.  Although a natural son of Mrs Leuta, he was raised in Samoa by his grandmother until he returned to New Zealand shortly before his death.  There were problems in relation to his adjustment to living with Mrs Leuta, her husband and their five other children.

[17]     When the child refused to eat an evening meal, Mrs Leuta lost control and administered what proved to be a fatal beating.  This was with a broken rubber fan belt.  The pathologist’s report, which was described as making grim reading, noted the presence of multiple injuries over the victim’s body except for the lower abdomen, genitals and soles of the feat.  The injuries took the form of bruising caused by multiple blows struck with a flexible instrument, obviously the fan belt.  Associated with bruising there were also multiple lacerations of the inner lips.  Bleeding into the soft tissues had in turn caused the child to become shocked, and the cause of death was aspiration of gastric contents (vomit) secondary to the multiple soft tissue injuries.  The death was less immediate than in the present case.  The victim was sent to bed after he had eaten an evening meal, he then vomited at about 11.00 pm and after he was heard crying at about 12.30 am he coughed and vomited again, before dying in the arms of his father.

[18]     Mrs Leuta was charged with manslaughter to which she pleaded guilty.  A number of mitigating factors were identified, including that Mrs Leuta had suffered a violent upbringing and that she lacked the resources to deal with a difficult situation when confronted with the return of her son, a sick husband and baby, and what was termed social isolation.

[19]     Mrs Leuta was sentenced to six years imprisonment from a starting-point of seven to eight years.  The Solicitor-General considered that this response was inadequate and sought a general lift in the sentencing level to ten years imprisonment for cases involving use of deadly force, whether against children or adults where a weapon was used.

[20]     The Court recognised three broad kinds of child manslaughter cases based on a categorisation in R v Horscroft (1985) 7 Cr App R(S) 254.  These were:

[a]where a child eventually died at the conclusion of weeks or even months of torture,

[b]a loss of control through anger resulting in injuries often more severe than might have been contemplated,  and

[c]a single episode of cruelty inflicted through rage.

Some general observations were made, including that violence inflicted upon a child was worse than that directed to an adult, that children are more vulnerable and fragile than adults and that the abuse of children also involved an abuse of a position of power and responsibility.  Common aggravating features were identified, including the use of a weapon and the failure to obtain treatment for fear of exposure.  On the other hand, the Court recognised that child homicide often occurred in the context of complex relational and domestic situations, where the circumstances which fell for assessment in judging culpability could vary enormously.

[21]     With reference to the required starting-point, Gault J on behalf of the majority observed:

[83]     In R v Tipene ([2001] 2 NZLR 577 (CA)), a case worse than the present one because of a history of physical abuse of the child, the Court, on a Solicitor-General’s appeal, said that the appropriate starting point for sentencing the primary offender was not less than 12 years. In R v Sperry (CA191 & 196/90, 3 October 1990), a case of a severe beating causing internal injuries, inflicted in a manner not fully explained, it was said that the case warranted a sentence of seven years or even higher.  Other recent cases to which we were referred do not contain any assessment of criminality in the unlawful conduct separate from the circumstances of the offender.  That is understandable because of the nature of the crime, but it does not facilitate comparisons where a starting point is sought.

[84]     In other circumstances, even without the relationship of care and trust, the deliberate beating of one person by another in a vicious and prolonged attack with a weapon, resulting in a state of shock, accompanied by failure to render appropriate assistance, and leading eventually to death, surely would attract a sentence of ten years or more.  Where the victim is a child and the offender has parental responsibilities, the culpability will often be greater.

[85]     We see this case as more serious than those involving brief loss of control.  Though there was a single episode, it was deliberate, prolonged and brutal.  In the absence of mitigating factors a sentence of ten years would be entirely appropriate.  To the extent that this might be regarded by some as higher than indicated by some of the previous cases, it is justified in comparison with other criminal offending.  It carries the necessary denunciation of the conduct and conveys the clear deterrent message that those who endanger the lives of children by resorting to violence will have attributed to them the level of criminality civilised society demands.

[22]     In the result the majority concluded that in the absence of mitigating circumstances a sentence of ten years would have been appropriate (a conclusion with which they did not understand Thomas J, who delivered a separate judgment, to disagree).  An early plea of guilty would warrant a reduction of at least two years and personal mitigating factors some further reduction.  In addition the case was not seen as one for moving the sentence to the top end of the available range on account of the fact that the sentence would remove a mother from contact with her other children during a critical time in their lives.  In the result the sentence was increased to seven years imprisonment, albeit the sentencing Judge would have been justified in imposing eight years imprisonment.

[23]     Mr Mansfield argued that the appellant’s criminality was no greater than that of Mrs Leuta.  He stressed that there was no evidence of premeditation or of the use of a weapon.  An ambulance was called once the seriousness of the child’s plight became apparent.  The appellant was genuinely remorseful and offered to plead to manslaughter at an early stage, a stance ultimately vindicated by the verdict of the jury.  Counsel argued that the facts of the present case were marginally less serious than those in Leuta, or at least that they could not be said to be more serious so as to warrant a starting-point two years higher than that indicated in the majority judgment.

[24]     Ms Guy, however, sought to persuade us that the twelve year starting-point was warranted on account of the calculated nature of the assault, the cruelty involved, the fact that Tamati was a vulnerable child who was placed in the care and protection of the appellant and his family,  the use by the appellant of his size and strength and because the injuries were the direct cause of death (whereas in Mrs Leuta’s case aspiration of gastric contents was the fatal mechanism).

[25]     We have considered these points separately and collectively.  In general terms we are in agreement with Mr Mansfield that the culpability of the two offenders is about equal.  One used a weapon and the other did not.  However, the appellant’s use of his fists upon a child held in a vulnerable position, was tantamount to the use of a weapon.  In terms of cruelty and the extent of the abuse of trust, we can see no valid distinction.  Likewise, in both cases the injuries occasioned shock and eventually death, albeit in the appellant’s case that outcome was more immediate and direct.

[26]     Ms Guy also argued that even if the culpability of the two offenders was similar, there remained scope for the Judge to adopt a twelve year starting-point in the present case.  She relied upon paragraph [84] in the majority judgment in Leuta, where a sentence of ten years or more was said to be justified for a vicious and prolonged attack with a weapon, resulting in a state of shock, accompanied by a failure to render appropriate assistance, and leading eventually to death.  Moreover, Gault J observed that where the victim was a child and the offender had parental responsibilities the culpability would often be greater.  Hence, said Ms Guy, ten years was not a ceiling in terms of starting-point.

[27]     That may well be so, but the fact remains that all members of the Court in Leuta subscribed to a ten year starting-point and the facts of that case we see as indistinguishable from the present in terms of culpability.  Nonetheless, respecting that the sentence was imposed by the trial Judge who was in the best position to assess overall culpability and giving weight to the observations in paragraph [84] of the majority judgment in Leuta, we are not prepared to say that a starting-point above ten years was beyond the available range.  But we cannot see the justification for a two year increase in the starting-point.  In our view 11 years imprisonment was as much as could be justified.

Allowance for mitigating factors

[28]     Mr Mansfield contended that full credit was warranted for the offer to plead guilty to manslaughter, that there was also the need to recognise the appellant’s previous good character and that therefore the reduction of two years from a starting-point of 12 years was inadequate.  A reduction of at least a quarter was necessary.

[29]     Ms Guy did not accept that the offered plea justified the normal deduction.  She said, and Mr Mansfield accepted, that the Crown was justified in persevering with the murder charge in the circumstances of the present case.  We agree.  Counsel supported the two year deduction from a starting-point of twelve years on the basis of observations in two decisions of this Court.  In each murder was charged, pleas of guilty to manslaughter were offered but rejected, and verdicts of manslaughter resulted.  In response to submissions on appeal that the reductions made to arrive at the effective sentence were insufficient to recognise the offered plea of guilty, this Court disagreed in each case. 

[30]     However, we do not take from these cases that as a matter of principle an offered plea of manslaughter deserves less recognition than would be the case in other situations.  We note that one case involved a manslaughter verdict based on provocation (R v Rongonui CA321/00, 9 May 2001) and the other a killing by the appellant of his wife which was described as close to murder (R v Te Hiko CA402/01, 29 April 2002).  In our view due recognition of the offer to plead guilty to manslaughter is necessary, given that the offer was vindicated by the verdict and albeit it was understandable that the Crown elected to proceed with the murder charge.  Once the manslaughter verdict resulted, however, that outcome had to be accepted and recognised.

[31]     The other principal mitigating factor was the appellant’s previous good character.  He had no prior convictions and the benefit of numerous references testifying to his services to the community, in particular to a sporting organisation and his marae.  The Judge noted these aspects but also observed that it was the offending with which he must be primarily concerned for the purposes of sentencing.

[32]     We are satisfied that the allowance of two years from a starting-point of twelve years was inadequate to recognise the offered plea and the circumstance of previous good character.  In the context of a starting-point of eleven years imprisonment we consider that a reduction of three years is necessary to adequately mark the mitigating factors.

Minimum term of imprisonment

[33]     In light of our conclusion that the sentence should be reduced from ten to eight years imprisonment, the need arises to review the minimum term.  We entirely agree that the case required the imposition of a minimum term.  As the majority said in Leuta at paragraph [80]:

… the violent, cruel and brutal treatment of a defenceless and vulnerable child, to whom there are duties of trust and responsibility, constitutes conduct of grave criminality and, where death ensues, the sentencing task is in respect of a very serious crime.

These observations aptly fit the present case and describe why the threshold for a minimum term was met.

[34]     In light of the revised eight year sentence we consider that the appropriate minimum term should be five years imprisonment.

Result

[35]     The appeal is allowed, the sentence of ten years imprisonment is quashed and eight years is substituted.  The minimum term of six years is likewise quashed.  Five years imprisonment is substituted.

Solicitors:
Crown Law Office, Wellington