THE QUEEN v HARRY TUARUA GREAVES [1999] NZCA 87 (13 May 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca68/99

THE QUEEN

V

HARRY TUARUA GREAVES

Hearing:	13 May 1999 (at Auckland)
Coram:	Blanchard J Anderson J Elias J
Appearances:	R Chambers for Appellant A R Burns for Respondent
Judgment:	13 May 1999

judgment of the court delivered by elias j

[1] The appellant appeals a sentence of five years imprisonment imposed upon him in the High Court at Auckland after his plea of guilty to a charge of manslaughter.The grounds of the appeal were that the sentence is manifestly excessive.But in argument on the appeal it became clear that the appellant's real complaint was that the Judge's sentence did not carry out what was said to be his intention that the appellant should be given credit for the period of the remand, although a sentenced prisoner at the time.

[2] Since the point of the appeal is put so narrowly, the facts can be summarised.

[3] The appellant is aged 38 years.He admitted causing the death by smothering of a ten month old baby, the child of his de facto partner.At the time, the baby was in the sole charge of the appellant.It was acknowledged by the appellant that he had caused the child's death by asphyxiation by placing his hand over the baby's mouth to stop him screaming.The appellant's actions were repeated on three or four occasions within a short time period, even though after the first occasion the baby stopped breathing and became purple in the face and had to be shaken before starting to breathe again.The appellant was concerned, apparently, that members of the public in the park where he was with the child might think he was abusing him and again placed his hand over the baby's mouth.When the baby still screamed after approximately 30 seconds of this treatment, the appellant again placed his hand back over his mouth.He stopped only when the child stopped struggling.At that stage the baby was not moving.After an attempt to revive the child by splashing water on his face and driving him home, the appellant administered mouth to mouth resuscitation. It was unsuccessful.The appellant then packed his bag, drove back to the park to collect two other children.He returned them to the house and left to drive to relatives.On the way he stopped and telephoned for an ambulance.

[4] Four days later the appellant came into the Avondale Police station.He co-operated with the police from the outset and provided them with a detailed account of what had happened.He expressed then, and continued at sentencing to express remorse for what he had done and to maintain that he had done everything he could to save the baby's life when he realised he was in peril.

[5] The appellant pleaded guilty at an early opportunity.He came for sentence before Giles Jon 29 July 98.At that time he was a sentenced prisoner, having been sentenced to three years imprisonment for aggravated robbery on 14 October 1997.

[6] The sentencing judge carefully reviewed the facts of the case.He referred to the relevant authorities and noted that the circumstances of manslaughter vary substantially so that limited assistance can be gained from sentences in other cases.In particular he reviewed cases involving the manslaughter of children by their caregivers.In such cases the sentences imposed vary according to the extent and deliberateness of the violence, but all recognise a significantly aggravating feature in the abuse of power by caregivers over helpless children.

[7] The judge identified the aggravating features of the case.First the father relationship in which the appellant stood to the child.Secondly that the baby was utterly defenceless.Thirdly, that the actions of the appellant were wanton and careless in the extreme.Fourthly, the repetition of force on three or four occasions.Fifthly, the fact that this was not a case where the appellant lost control, but rather a deliberate action to stop the child crying.The offence could not therefore be characterised as entailing a single act, although it was not one of ongoing brutality.Finally, the Judge took into account the appellant's failure to get help for the child

[8] On other hand, the Judge identified mitigating features, particularly the remorse which he accepted the appellant had shown from the outset and which appeared to be genuine and continuing.He took into account the appellant's early guilty plea.Finally, he accepted that in prison the appellant had come to obtain some insight into his life and had demonstrated an intention to modify the behaviour which hadled him into substantial criminal offending in the past.That change of heart was substantiated by the prison officers, as is indicated in the pre-sentence report.The Judge clearly regarded it as important to provide an incentive to the appellant for his continuing rehabilitation.He concluded however:

But at the end of the day, my responsibility is to recognise that a serious breach of trust occurred here by a person who was in a de facto parental relationship.The repeated number of efforts to silence this child were inexcusable.You will have to live with what you have done for the rest of your life.No sentence that I impose can change that or bring this boy back. But the Court must signify society's revulsion at this type of offending. There is an element of deterrence which is necessary.There is a need for a punishment factor.The sentence must, however, be one which offers you some hope to continue the search for a new Harry Greaves.

[9] Judge considered a Crown submission that the sentence imposed in respect of the manslaughter should be cumulative on the aggravated robbery sentence.He rejected that suggestion, recognising that in doing so he conferred an advantage upon the appellant.

[10] We have considered whether the sentence could be regarded as manifestly excessive, although the point was not stressed in oral argument.We are unable to agree with that suggestion, made in the points on appeal.In context, the sentence may be regarded as a merciful one for the reasons given by the Judge in identifying the aggravating features of the case.But for the guilty plea, the expressions of remorse, and the indications of the appellant's preparedness to change his behaviour, the appellant's previous history of criminal offending, including his violence, might well have prompted a sterner sentence.

[11] Concern was expressed on behalf of the appellant on the appeal that the Judge had not indicated his starting point in the sentence, but in the circumstances of this case where account had to be taken of a sentence currently being served, the ultimate sentence cannot be said to be excessive.

[12] It was submitted by counsel for the appellant that the Judge had intended to give credit to the appellant for the time spent in custody on remand.We are unable to read the Judge's sentencing remarks in that way.He said:

The Crown urges me to impose a cumulative sentence.It would be entirely legitimate so to do, because this offence is not in any way related to the aggravated robbery which has attracted a term of three years imprisonment as from Last October.On the other hand, you seem to have at last turned your life around and the potential for rehabilitation, which is reflected in the pre-sentence report, and your current attitude to prison, is something which cannot be ignored or discounted.I am, however, unable to accept Mr Trehey's urgings that I should be so indulgent as to impose a sentence at the lower end of the scale that is open to me.All things considered, I have, however, decided to avoid imposing a cumulative sentence which will give you an advantage in the sense that time being served now will be counted in terms of the sentence that I propose to impose.You are entitled to the credit for the guilty plea which has saved the financial cost of a trial but, more importantly, has saved the distress that Miss Cooper would have had to suffer by having to give evidence.I conclude that a sentence of five years imprisonment is appropriate.It will not be made cumulative.

[13] The Judge was making the obvious point that a concurrent sentence was not as severe in its effect as a cumulative one.A cumulative penalty in this case would have increased the effective penalty by some two years.

[14] For these reasons the appeal is dismissed.

Solicitors

Roger Chambers, PO Box 941 Aucklandfor appellant

Crown Solicitor Auckland for respondent