The Queen v Tipene [2000] NZCA 358; [2001] 2 NZLR 577; (2000) 18 CRNZ 311 (30 November 2000)

Last Updated: 7 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 309/00 CA 310/00

THE QUEEN

V

DOROTHY PAREHIKIHIKI TIPENE
BELINDA LEE EDMONDS

Hearing:	26 October 2000 (at Auckland)
Coram:	Blanchard J Ellis J Anderson J
Appearances:	J C Pike for Crown R G Marshall for Ms Tipene H H Roose for Ms Edmonds
Judgment:	30 November 2000

JUDGMENT OF THE COURT DELIVERED BY ELLIS J

The appeal

[1] The appellant Ms Edmonds pleaded guilty to the manslaughter of her daughter Mereana and was sentenced in the High Court at Hamilton to five years imprisonment. The appellant Ms Tipene pleaded guilty to ill treating the child while in her custody or control in a manner likely to cause her bodily harm. She was sentenced to imprisonment for 18 months. The Solicitor-General applies for leave to appeal against these sentences on the grounds that they are manifestly inadequate.

The facts

[2] The facts surrounding the death of Mereana are tragic. In the context of this appeal it is appropriate to set them all out. The Police summary follows:

"Mereana Te Mana Motuhake Ms Edmonds was born in Hastings on 24th November 1992. She died at Hamilton on 10th May 1999 aged 6½ years.

Belinda Lee Ms Edmonds is the mother of Mereana and was at the time of birth an addicted solvent abuser.

Nevertheless Ms Edmonds cared for Mereana until she was approximately 18 months old at which time responsibility was passed to the child's maternal grandmother who resided in Hastings.

Mereana remained with her grandmother until December 1998 when she came to Hamilton to be with Ms Edmonds at the request of Ms Edmonds. Prior to that there had been intermittent contact between Ms Edmonds and Mereana following which Mereana's grandmother observed the child was upset and saying she did not want to go back.

Mereana initially lived with her mother in a room at the YWCA. She had difficulty coping with Mereana and she was subject to assaults while in her care there.

After a short period Mereana was moved into the care of her mother's partner Dorothy Ms Tipene.

Ms Tipene resided at 46 Boundary Road, Hamilton and from there Mereana attended Hamilton East Primary School.

Ms Edmonds resided at the YWCA until February 1999 when she joined her daughter and Ms Tipene at 46 Boundary Road, Hamilton.

Care of Mereana was shared between the two. Ms Edmonds worked at night and Ms Tipene during the day. In periods when one was absent sole responsibility fell to the other.

Over the following months staff of the Hamilton East Primary School noted that on occasions Mereana acted strangely. These included occasions when she would attend school on hot days dressed in full-length clothing obscuring all her body and refused to go swimming. On at least two occasions Mereana was observed to be too scared to go home. On one of these occasions Mereana refused to get off the school bus and when subsequently uplifted by Ms Edmonds at her school clung to the legs of staff crying and begging to stay with them rather than go home.

On 19th April 1999 Mereana stopped going to school and never returned.

From the time Mereana moved to Hamilton from Hastings until the time of her death on 10th May 1999 Mereana was subject to serious and continual physical abuse from both Ms Edmonds and Ms Tipene.

She was on several occasions left overnight in a small outside shed at the Boundary Road address. She was also left in the wash house of the address. On one occasion she had her hair cut off by Ms Edmonds during a fit of rage. This mistreatment of Mereana generally followed her either wetting her pants or bed. She was unable to control this and the mistreatment accordingly continued.

On occasion she was picked up by the head and was frequently punched, kicked and slapped often around the area of the head.

The respective roles of Ms Edmonds and Ms Tipene cannot be accurately quantified but the evidence suggests Ms Edmonds was primarily responsible.

At approximately 8.30pm on 10th May 1999 Police were called to the address of 46 Boundary Road, Hamilton.

On arrival of the address Mereana was found dead.

Subsequent medical examination revealed that the cause of death was widespread hypoxic/ischaemic brain nerve cell damage. In simple terms the deceased brain was starved of oxygenated blood.

A neuropathologist who reviewed the post mortem findings concluded there were two possible ways in which this could have occurred.

First the deceased could have been rendered unconscious by a blow to her head. If a good recovery position was not achieved an obstruction to her airway could occur and over a period of time hypoxic/ischaemic nerve cell damage would occur and death would result.

Secondly the blow to the head can precipitate an epileptic seizure. A consequence can be oxygen starvation and the result is the same. That is hypoxic/ischaemic nerve cell damage and death.

Head trauma of sufficient seriousness to relate to the either possibility was discovered.

There was evidence of an older injury to the right frontal lobe. Probably associated with that was evidence of a similar aged injury on the hind brain. These injuries were shown by areas of abrasion and staining. They occurred sometime between six weeks and six months prior to death. They would require severe impact to be caused. The most likely scenario is being forcefully pushed backwards into a hard object either directly or by falling. Contact would cause the injury to the hind brain and the right frontal lobe injury would be the result of the rebound of the brain within the skull.

More recently the deceased suffered a serious injury to the upper surface of the brain in the area of what is known as the vault. This more recent injury has been caused by a blow causing the brain to move in the skull. The injury was evidenced by tearing of veins which act as suspenders for the brain. An abrupt movement would be required to cause this tearing and in a child of the deceased age shaking would not cause such an injury. A blow of reasonable force would be required. This injury was between five and seven days old at the time of death. Such an injury can be fatal.

Examination revealed an external injury to the right eye of the deceased which is consistent with being inflicted some five to seven days before.

In addition a further injury causing tearing of vessels within the brain was discovered. This injury would have been caused between two and three hours prior to death. Examination revealed an injury to the right temple of the deceased which is consistent with the blow required to cause this third injury.

The timing of the third injury is also consistent with the time required for hypoxic/ischaemic nerve damage to result in death.

The deceased's brain was the subject of trauma on three occasions. The first sometime between six weeks and six months prior to death, the second between five to seven days prior to death, and the third a matter of hours prior to death. Assaults have caused these injuries.

It is possible that death could have resulted from the consequences of the final injury or the accumulated effect of them all.

In addition to head injuries numerous other non-threatening injuries were observed at post mortem.

(Here follows a list of 23 injuries to all parts of the body including broken bones.)

Accurate aging of fractures is unreliable but the changes seen in the ribs and collarbone were likely to be more than two weeks old. It is also likely that the fractures were less than six months old.

Ms Edmonds was spoken to by the Police in relation to the death. She admitted that she had been physically assaulting and abusing her daughter during the time they had been living together. She stated that the weekend prior to death she had kicked her daughter so hard up the backside that she had smashed her head into the wall. The following day being the day prior to her death she admitted physically throwing her daughter into a small shed outside again causing her to hit her head. She said that those two incidents along with being punched in the head during the week resulted in the deceased walking unbalanced and walking into walls and furniture.

Ms Tipene was spoken to regarding the death. She denied being responsible for physically assaulting or abusing the child during the time that they had been living together.

Following initial enquiries a warrant authorising the interception of private communications at 46 Boundary Road, Hamilton was obtained by the Police.

Intercepts show Ms Tipene admitting to assaulting the child and causing black eyes and bruising together with bite marks. It also became clear that she was aware of the extent of the violence directed by Ms Edmonds towards the child.

On 18th May 1999 a conversation between the prisoners was intercepted. During this conversation Ms Tipene suggests to Ms Edmonds that Ms Edmonds is in denial and that she knows what she did to the child at the time of her death. Ms Tipene talks of Ms Edmonds hounding the child for two hours and in the morning of the day of her death punching the child. Ms Edmonds acknowledges her acts saying, "I know what I did to my daughter".

Police also gained access to an electronic diary kept by Ms Tipene. In an entry on 26th July 1999 she records that she woke up depressed and feeling guilty. She records that for the first time she was able to tell Ms Edmonds about the incident that took place when the deceased received a broken collarbone.

On 10th January 2000 Ms Edmonds voluntarily attended the Hamilton Police Station and made a statement.

In this statement she acknowledged that she had caused the death of her daughter but did not mean to. She said that she didn't mean to do it intentionally and didn't mean to do it to help her to have a seizure and die. She further acknowledged that she had hit her daughter over the head prior to death and that she had been giving her hidings prior to her death. She accepted responsibility for the old marks and bruises and the bite on her nose saying that she would have done them with her fist."

The offenders

[3] Ms Edmonds maintained the deceased child was the result of a rape. She said she was not ready for the duty of caring for the child and did not really want to have the child with her. She takes full responsibility for the death and cannot explain why she mistreated the child so. She said she could not understand the child's behaviour and got angry with her as a result. She herself had a hard upbringing and left school after the third form and "hit the streets" in Wellington. She has had treatment for alcohol and drug addiction. The YWCA staff who knew her describe her as "like two different people she could be sweet and generous, and angry. She was a good worker and had leadership potential and high standards". On the other hand over 18 years she has accumulated 48 convictions for a wide range of antisocial activities. She was recently sentenced to imprisonment for dishonesty offences. She needs to address her problems of anger and is at present assessed as a high risk for re-offending.
[4] Ms Tipene is also a single woman with a child. The offending took place while she was living with Ms Edmonds who she says is a very controlling and volatile person and who had the "upper hand" in their relationship. She has strong connections with her Maori heritage and gained a bachelor's degree in Te Reo Maori in 1998. She says she has suffered from depression and has had suicidal ideation. She too had a hard upbringing and an abusive husband. She too has had treatment for drugs. She is shocked by what has happened. She confirms Ms Edmonds was reluctant to resume care of her child and could not manage her. In short Ms Tipene says she feels she was caught up in a situation she could not influence. She has some 15 convictions for relatively minor matters and has not been imprisoned before now.

The sentencing

[5] We were told from the bar that counsel for the Crown submitted that for the appellant Ms Edmonds the appropriate starting point for constructing a sentence was eight years imprisonment. The Judge adjusted that to seven years for Ms Edmonds and two years for Ms Tipene. He then reduced the sentences to recognise the guilty pleas. It was not contended that the Judge erred in the degree of differentiation or the proportion of the adjustment for the pleas. The only question is the appropriate starting point. Mr Pike now submits for the Crown that the starting points should have been much higher. In respect of Ms Edmonds it is submitted that it should have been higher than the eight years suggested by the prosecution to the sentencing Judge.
[6] We first consider whether it is appropriate for this Court to entertain a Solicitor-General's appeal to increase the sentence well above the sentence which the prosecutor indicated was adequate. To arrive at the suggested sentences starting points of around 13 and five years respectively are envisaged. There have been two cases in this Court where the Crown has sought to increase sentences after having acquiesced in the sentences actually imposed (R v Coleman (unreported, CA68/86, 20 May 1986) and R v Wong (unreported, CA232/89, 6 October 1989)). In Coleman the Crown's position on sentencing was taken into account on appeal but in circumstances where the lenient sentence was found to be otherwise justified on other grounds. In Wong the lenient sentence was maintained because of the Crown's initial attitude.
[7] In Australia too appellate courts take into account the position taken by the prosecutor in sentencing. Generally the Crown will not be permitted to take a different stance on appeal than it did at trial. But courts have allowed appeals and increased sentences where there has been a gross inadequacy of sentence and the offender is already serving a custodial sentence. In R v Tait (1979) 24 ALR 473, 477 the Federal Court of Australia stated:

"... there would be few cases where the appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing Judge to avoid the error ...."

This has been applied in several reported cases where no submissions were made to the sentencing Judge (R v Wilton (1981) 28 SASR 362 (SASC) and R v Everett [1994] HCA 49; (1994) 124 ALR 529 (HCA)).

[8] However, later cases have taken a less strict view and have clearly established that the prosecutor's position on sentencing is only one of the factors to be taken into account, although it may be a matter of significance: see, for example, R v Allpass (1993) 72 A Crim R 561 (CCA NSW) where the Court said at page 565:

"The Crown is not debarred, on appeal, from taking a stance different to that taken at first instance, but this Court, in the exercise of its discretion, is entitled to take account of the fact that, at first instance, the Crown acquiesced in the course that was taken by the sentencing Judge: Jermyn [1985] 2 NSWLR 194; (1985) 16 A Crim R 269; Malvaso [1989] HCA 58; (1989) 168 CLR 227 (HCA). The weight to be given to such a consideration depends upon the circumstances of the particular case, but it may be of considerable significance if the respondent was given a non-custodial sentence at first instance. Its weight may also vary with the degree to which the appellate court thinks the sentencing judge fell into error."

[9] This approach has subsequently been applied by the NSW Court of Criminal Appeal in R v Qi (1998) 102 A Crim R 172 and R v Fletcher-Jones (1994) 75 A Crim R 381. In the latter case the offender was guilty of what was described as "horrible" crimes against his wife. At a sentencing indication hearing the prosecutor suggested a starting point of at least four years. The Judge imposed four years with a minimum to be served of close to three years. The Court of Appeal held, in view of the gravity of the offences, that the sentence was "grossly inadequate" and increased the minimum sentence to six years imprisonment with up to an additional four years. Obviously this sentencing system is not comparable to that in New Zealand. We mention the figures to show the substantial increase imposed by the appeal Court.
[10] We have not found any comparable English cases but in Canada there are decisions in the Court of Appeal in several provinces (Attorney-General for Canada v Roy (1972) 18 CRNS 89; Sutherland (1974) 10 NRB (2d) 221 (NBSC CA); R v MacArthur (1978) 39 CCC (2d) 158 (PEI SC); R v Agozzino [1970] 1 CCC 380 (Ont CA); and R v Christie (1956) 23 CR 408 (Sask CA)). The Courts expressed concern in cases where guilty pleas had been entered in a plea bargaining situation. In such situations the prosecution is not to be permitted to try to increase sentences to which it has agreed. Judgments also refer to the danger of double jeopardy.
[11] We agree with the view expressed in Allpass (para [8] above) that the Crown is not debarred, on appeal, from taking a stance different from that taken at first instance. However the fact that the Crown has taken a particular stance, with which the sentence imposed is not inconsistent, is relevant to the appearance of justice when the appropriateness of the sentence is considered on appeal. There may be occasions when, notwithstanding a perception of injustice on the part of the Crown in changing its stance, an appellate Court may be unable to avoid the conclusion that there is an even greater perception that justice has gone wrong because the sentence imposed is so manifestly inadequate.

The appropriate sentences

[12] As to the comparative sentences, we agree that the sentencing Judge drew the appropriate distinction between the two offenders who were being sentenced for different offences reflecting their differing roles in Mereana's death. He considered the appropriate starting point to be seven years and two years imprisonment respectively and reduced the sentences to recognise the guilty pleas. Counsel for the Crown submits that while the Judge correctly noted the aggravating features of sustained abuse, wide variety of injuries and breach of trust the appropriate sentence for Ms Edmonds should have been ten years imprisonment and for Ms Tipene four years imprisonment
[13] Counsel referred us to many sentencing decisions. It is trite to observe that sentences for manslaughter range as widely as do the facts. While the maximum sentence is life imprisonment, sentences for killing children have ranged from six months to 16 years imprisonment (R v Auvaa (unreported, Auckland High Court, S166/92, 1 December 1992 and R v Witika [1993] 2 NZLR 424). Similarly sentencing decisions for cruelty to and wilful mistreatment of children range from a non-custodial sentence to substantial terms of imprisonment. Mr Pike submitted that the manslaughter cases fell into three broad bands: grave cases where a child eventually dies at the conclusion of weeks or even months of torture; a single episode of cruelty inflicted through anger; and loss of control through anger resulting in injuries often more severe than might have been contemplated. He referred to such an approach by Mustill LJ in Horscroft (1985) 7 Cr App R (S) 254 and taken up in Witika (supra). We can see some advantage in such a process but in the present case we need only say that the duration of the cruelty inflicted on this poor young victim, the nature of the injuries and of the neglect by the child's mother and caregiver, are of the most serious degree.
[14] There can be no question but that the sentences imposed in this case must reflect society's denunciation of prolonged cruelty and neglect. While each offender can herself be described as a victim of past abuse, society cannot countenance condoning what was done and allowed to be done. With respect to the sentencing Judge we think he took a much too lenient view of the offending. The appropriate starting point for Ms Edmonds was not less than 12 years, and in the case of Ms Tipene not less than four years. We think the disparity between the sentences actually imposed and those which we think appropriate is so great that, notwithstanding the Crown's stance at sentencing, the appeal should be allowed.
[15] We agree that a proper and substantial reduction must be made for early guilty pleas and some account should be taken of the offenders' personal circumstances. We also give weight to the Judge's clemency and to the fact that this is a Solicitor-General's appeal on which it is not appropriate to adjust sentences to more than the minimum extent necessary to remove the element of manifest inadequacy.
[16] Accordingly, leave to appeal is granted and the appeals are allowed. The sentence for Ms Edmonds is increased to eight years imprisonment and the sentence for Ms Tipene to two years and three months imprisonment.

Solicitors:
Crown Law Office, Wellington for Crown
Boot Roose, Hamilton for Ms Edmonds