Thompson v The King - [2024] NZCA 266

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA262/2022
[2024] NZCA 266

BETWEEN	SOUTHERN CHEYENNE THOMPSON Appellant
AND	THE KING Respondent

Hearing:	4 October 2023
Court:	Katz, Palmer & Jagose JJ
Counsel:	S J Gray for Appellant A J Gordon for Respondent
Judgment:	25 June 2024 at 9.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.
_________________________________________________________________

REASONS OF THE COURT

(Given by Katz J)

Introduction

Comfort Jay Thompson died in Waikato Hospital at the age of 18 months. She had suffered an irreversible, non‑survivable brain injury, caused by blunt force trauma. Her mother, Southern Thompson, pleaded guilty to Comfort’s murder, as well as two charges of ill treatment of Comfort and one charge of injuring Comfort with intent to injure her. Ms Thompson was sentenced by Lang J, in the Rotorua High Court, to life imprisonment with a minimum period of imprisonment (MPI) of 17 years.[1]
[1]R v Thompson [2022] NZHC 1038 [judgment under appeal].
Ms Thompson appealed her sentence on the ground that the MPI imposed was manifestly unjust considering her difficult personal background and her remorse. Her counsel, Ms Gray, submitted that if proper weight is given to these factors, the appropriate MPI would be in the vicinity of 14 years.

Background

Comfort was born with a birth defect, gastroschisis, and remained in hospital for four months after her birth to receive treatment for her condition. Due to her birth defect, Comfort required extra care during the early stages of her life.
On 23 July 2018, at about 9.45 am, Ms Thompson borrowed a phone from a neighbour and called Healthline, advising them that Comfort was unwell. Based on what Ms Thompson told them, Healthline advised that urgent medical care be sought and offered to call an ambulance, which Ms Thompson declined. Ms Thompson called an ambulance two hours later, at 11.44 am. When the ambulance arrived, Comfort was seriously unwell. She was taken to hospital and placed on life support but had sustained a brain injury that was not survivable. She died the following day. The medical experts were of the view that the fatal injuries were inflicted within the 48 hours prior to Ms Thompson calling an ambulance.
A police investigation established that Comfort was subjected to ongoing neglect and physical abuse prior to her death, which the Judge summarised at sentencing, as follows:
[4] The charges other than that of murder were laid as a result of a series of events that occurred from at least January 2018 until [Comfort’s] death on 24 July 2018. During this period you ill-treated and physically abused [Comfort] in numerous different ways. You assaulted her by slapping and hitting her head, face and body. You would grab her with excessive force and scratch her with your fingers. You failed to change her dirty nappies and failed to keep her clean and warm. You also failed to provide her with enough food to ensure she was well nourished. In addition, you…

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 Thompson v The King

Details

AGLC: Thompson v The King [2024] NZCA 266
Case: [2024] NZCA 266
Decision Date: 25 June 2024 at 9.30 am

CaseChat Overview and Summary

Southern Cheyenne Thompson, the appellant, appealed her sentence following her conviction for the murder of her daughter, Comfort Jay Thompson, who died at 18 months of age from injuries caused by blunt force trauma. Ms Thompson was also convicted of two charges of ill-treatment of Comfort and one charge of injuring Comfort with intent to injure her. Ms Thompson was sentenced by Lang J, in the Rotorua High Court, to life imprisonment with a minimum period of imprisonment (MPI) of 17 years. Ms Thompson appealed her sentence on the ground that the MPI imposed was manifestly unjust considering her difficult personal background and her remorse. Her counsel submitted that if proper weight is given to these factors, the appropriate MPI would be in the vicinity of 14 years.

The court examined whether the Judge erred in setting the notional MPI and whether the imposition of a 17-year MPI was manifestly unjust. The court found that the Judge did not err in assessing 18 months as being the appropriate discount from the notional MPI to reflect Ms Thompson's personal background factors, including her remorse. The notional MPI was correctly assessed as being 16 years and three months’ imprisonment. Further, the court found that the imposition of a 17-year MPI was not manifestly unjust in all the circumstances. The offending involved the systematic physical abuse and neglect of a young child who was completely defenceless and reliant on Ms Thompson for protection. The offending culminated in her death by an assault or assaults. This fell squarely within the type of offending to which Parliament intended s 104 to apply. The appeal was dismissed.

Orders