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Court of Appeal of New ZealandLast Updated: 12 December 2011
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IN THE COURT OF APPEAL OF NEW ZEALAND
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CA79/01
CA96/01 CA99/01 |
THE QUEEN
V
SIPEA LEUTA
FRANCIS RIAZ RAUF
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Hearing:
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12 July 2001
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Coram:
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Elias CJ
Gault J Thomas J Blanchard J McGrath J |
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Appearances:
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D S Niven for Leuta
R M Lithgow and C J Milnes for Rauf Solicitor-General (T Arnold QC) and J C Pike for Crown |
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Judgment:
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19 September 2001
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JUDGMENTS OF THE COURT
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Judgments
Para Nos
Paras
Elias CJ, Gault, Blanchard and McGrath JJ [1] – [92]
Thomas J [93] – [143]
ELIAS
CJ, GAULT, BLANCHARD AND McGRATH JJ
(DELIVERED BY GAULT J)
[1] We heard the argument in these three appeals on the same day. That was because the Solicitor-General wished to argue for a review by this Court of sentencing levels for manslaughter in two categories of cases. In fact the two proposed categories, represented by the cases of Mr Rauf and Mrs Leuta, are quite different, but in the circumstances it is convenient to deal with them in a single judgment.
The Rauf appeal against conviction
[2] Mr Rauf has appealed against his conviction and it is appropriate to begin with that. He was convicted of manslaughter after a jury trial in the High Court at Wellington. He had been charged with the murder of Mohamed Fuard, a taxi-driver, but, probably by reason of provocation, the verdict was of guilty of manslaughter. The two grounds of appeal presented on his behalf by Mr Lithgow were that the trial Judge erred in ruling that there was no issue of self-defence to be put to the jury, and that the Judge wrongly excluded evidence of statements said to have been made by the deceased in connection with an application to the Immigration Service for refugee status.
[3] Mr Lithgow submitted that there was a credible basis in the evidence for the jury to be invited to consider whether Mr Rauf killed the deceased with a pre-emptive strike by way of self-defence. In support of that argument he painted, as emerging from the evidence, a picture of Mr Rauf as a confused and frightened young man who, fearing for the safety of members of his family who were being threatened by the deceased, stabbed the deceased to protect them.
[4] While a concise judgment cannot fully set out the extensive narrative of counsel, it is possible to capture the essential points quite briefly.
[5] The deceased was engaged in dishonest attempts to gain permanent residence in New Zealand. To that end he set about tracing Mr Rauf, a 20 year old he remembered carrying in his taxi who bore a resemblance to him in general appearance. From Mr Rauf’s sister, who lived at the address to which Mr Rauf had been taken, he learned of his whereabouts. He eventually found him at Paeroa where he had gone to live. Mr Rauf was offered work in Wellington with a car importing business and $5,000 in return for his passport. He returned to Wellington with the deceased.
[6] The passport could not be found. No job in Wellington eventuated and, of course, no money was paid to Mr Rauf. The deceased kept in contact however. According to Mr Rauf’s statements to the police (he did not give evidence), the deceased offered him money to kill a member of the deceased’s family. On the day of the killing the deceased picked up Mr Rauf from his sister’s place. Mr Rauf was carrying a knife concealed in his sock. They drove to Petone. There, according to Mr Rauf’s statement, the deceased pressed him to agree to kill a family member. Mr Rauf said he wanted to see the deceased’s money. At one point another taxi stopped nearby. The deceased spoke to the driver who picked up a passenger and drove off. The discussion resumed. The deceased told Mr Rauf that if he would not agree to undertake the killing, the deceased would find someone who would and who could kill a member of Mr Rauf’s family and Mr Rauf as well. Mr Rauf produced the knife, he said in an effort to stop the threats, and when the deceased took no notice Mr Rauf stabbed him. One of the two stab wounds proved fatal. There were in addition seven further wounds, a number of which were about the head and were probably inflicted with the handle of the knife.
[7] It was argued that the evidence provided a sufficient basis for a submission to the jury that Mr Rauf had been manipulated by the deceased, a convincing but dishonest man giving the impression of wealth and power, to the point where he believed his family members were in imminent danger, perhaps from the other taxi-driver, thereby justifying a pre-emptive strike.
[8] The trial Judge in his ruling assessed the matter as follows:
The case is one where the jury could accept, if they believed the accused’s statement to the Police and statements made by him to members of his family, since all of the allegations come from him, that the circumstances were that he and members of his family were under threat of being harmed by some person arranged by the deceased, the harm threatened being some form of physical harm perhaps up to the level of killing. There is also evidence that the accused did not think that the Police would believe him if he went to complain about the taxi driver. However, the evidence does not go in my judgment anywhere near suggesting that the accused or his family were under immediate threat of any harm at the time the killing took place. As the accused described it in his interview the threat made was that the deceased would cause harm to be visited on him or his family if the accused would not go ahead with some illegal activity for which the deceased had offered him money. Family members were not present, no assistants of the deceased were present and there is no suggestion that the deceased was in communication with anyone else whilst the two of them were in the taxi.
[9] After citing from the judgment in R v Wang [1990] 2 NZLR 529, the Judge concluded:
In my judgment no jury could possibly find that it was reasonable to stab a man several times, including once through the heart, with a knife of the kind used in this case in the face of the threat of which the accused has spoken. Accordingly I have ruled that there is no issue of self-defence properly able to be submitted to the jury.
[10] Mr Lithgow submitted that the Judge was wrong. He raised the two issues of imminence and proportionality of response and contended both are essentially jury issues and should not have been kept from the jury. He referred to the use by the Judge of the expression “immediate threat” whereas in Wang the Court had said “the danger threatened must be, or appear, imminent”. He said that imminence is not the same as immediate and that the Judge had applied the wrong test.
[11] He argued that the requirement for justification under s48 Crimes Act 1961 would be met where there is a belief that someone else will be harmed, by some third person instructed by the person threatening that harm, at a time and place of his choosing. He was not able to cite any case in which that has been held.
[12] The section provides that in defence of himself or another, a person is justified in using “such force as, in the circumstances as he believes them to be, it is reasonable to use”. As was said in Wang, the qualification that the threatened danger must be or appear imminent is a facet of the limitation to force that is reasonable. As has long been recognised, a threat which does not involve a present danger can normally be answered by retreating or in some other way avoiding the future danger: R v Terewi (1985) 1 CRNZ 623,625. It is for the Judge to decide whether there is “a credible or plausible narrative” which might lead the jury to entertain the reasonable possibility of self-defence: R v Tavete [1988] 1 NZLR 428,430.
[13] We are satisfied that even accepting the circumstances as counsel claimed Mr Rauf believed them to be, it would be to expand self-defence far beyond a justification for criminal conduct by a person believing that it is necessary to defend himself or herself or another to contemplate its availability where there is a threat that a third person will be harmed at some indeterminate future time by an unspecified fourth person. Our view would be the same on the amended test recommended by the Law Commission under which danger which is not imminent but is inevitable would justify the use of force: (NZLC R73, para 32).
[14] The thrust of counsel’s argument was that the imminent threat was not to Mr Rauf but to one or more members of his family. Presumably that was to enable reliance on the statements by Mr Rauf that the deceased spoke to the other taxi-driver and “I don’t know what he had planned”. However, Mr Rauf’s statements in the course of a long interview, repeatedly were of concern for his own life. One such account is transcribed as follows:
FR: He just comes back, sits down and starts threatening me about getting somebody else to do the job okay. If I was to pull out he can get somebody else to do the job and give them the money. And you know get them to do me over me and my family members too. That’s when I just started freaking out, pulled out my knife. I warned him, you better leave me alone, leave me and my family alone or else but he just insisted on carrying on talking about it and I just freaked out. As if my life meant nothing to him.
MS: When you say he kept on going on, what was he doing?
FR: He kept talking on about he says I’ll get that fr get somebody else to do it I’ve got heapsa money, I’ll pay somebody else to do you over oh do do do your job. That’s why I just closed my eyes and just (has his armed folded in front of him on the table and gesture with his right arm – elbow first – to the right) stabbed him.
[15] There was no suggestion that Mr Rauf was in danger of harm from the deceased himself. The claimed threat to his life was to be by someone yet to be hired. No jury properly instructed could entertain the possibility that stabbing an unarmed man in the chest in response to that was use of reasonable force.
[16] It is understandable then that counsel framed the argument with reference to the claimed threat to Mr Rauf’s family. However framed, the circumstances constructed from the interview do not come close to a credible narrative warranting the defence of self-defence to be submitted to the jury.
[17] The second ground of appeal falls with the first. The excluded evidence was of the account given by the deceased of the background to his claimed need for asylum in New Zealand. It was rejected by immigration officials. Counsel claimed that whether true or not, it demonstrated the deceased had the ability to portray himself as having a background linked to violent activities. It demonstrated also his capacity for “story telling”. If this evidence had been admitted, it was said, it would have tended to bolster the credibility of Mr Rauf’s account of the circumstances as he believed them to be in relation to self-defence.
[18] However, in dealing with the first ground of appeal, we proceeded on the basis that the circumstances as Mr Rauf believed them to be would be as counsel painted them. Even in those circumstances self-defence was not available. Accordingly the exclusion of the evidence can have had no prejudicial effect on Mr Rauf’s case.
[19] The appeal against conviction is dismissed.
The sentence imposed on Mr Rauf
[20] Mr Rauf was sentenced to imprisonment for seven years. In the course of his sentencing remarks the Judge gave an account of the facts sharply contrasting with that Mr Lithgow outlined as the view the jury would have been invited to consider had self-defence been allowed to be put to them. It is appropriate therefore to set out at some length the views expressed by the Judge.
You came back to Wellington with Mr Fuard on the Monday of the week he was killed. By the Tuesday you could see the money, the job and the other good life that had come out of the blue for you, to be vanishing.
Then at some stage it is said the dead man tried to bribe you with considerable sums to kill one or two members of his family, and added threats that if you did not do what he wanted he would bribe someone to injure or kill members of your family.
That part of the story is very strange because what Mr Fuard wanted was a passport so he could stay in New Zealand or go elsewhere on a false passport. He did not want to attract attention and it is very strange that he would suggest promoting a murder, particularly of his brother-in-law who would provide the cars he would sell in New Zealand and who, in the Victim Impact Report, has described Mr Fuard as his good friend as well as his brother-in-law. Those sorts of threats which you said were made do not fit with the man who was pictured by other people who knew him and in the Victim Impact statement.
...
It is clear that by the Thursday you had become angry because all these promises which had raised your hopes, and some of your family’s hopes, that you would get a good deal of money, had vanished when you could not find your passport.
I have considered the matter with some care since the trial and looking at it in the best light from your point of view, my view is that you were going to make the dead man leave you and your family alone: you were going to teach him a lesson – a man with money and persistence who had raised your hopes and then thrown them down. I am quite satisfied that part of that lesson was going to be that you were going to rip him off, you were going to rob him.
...
You were charged with murder. Your defences were that you had neither of the states of mind required for homicide to amount to murder and that you acted under provocation. The jury accepted that the proper verdict was manslaughter but there is no indication how each line of defence weighed in the final result.
I have considered how the matter should be approached for sentencing purposes referring in particular to R v Heti (1992) 8 CRNZ 554 (CA). The issue is not without significance because one approach involves no intent to kill or to cause injury known to be likely to cause death and the other that there was such an intent.
In my view there was ample evidence to warrant the conclusion that at the time the knife was used there was an intent to cause bodily injury known to be likely to cause death and recklessness whether death ensued. However I do not believe that a final conclusion to that effect is necessary. It is enough that I determine that neither the evidence nor the verdict excludes the view that this was a deliberate and serious attack by you which ended in death. The proper sentence is reached by balancing the factors which affect the seriousness of what you did.
The provocation was said to arise from the history of persistent approaches by the dead man for his passport purposes, and the threats that he made in respect of your family. It is clear from what your mother said this morning that it is accepted by your family that those threats were made, and that they might have been real. I accept that the jury, however strange it was, may have believed it was reasonably possible that what you said about the threats was true, because Mr Fuard was very persistent, and on the evidence told lies to get what he wanted. He raised your hopes and he dashed your hopes, but that really does not help you much because all your dealings with him were about illegal activity. All these questions of money and so on arose if you sold him your passport or, as you say, if you would kill someone. I accept, as I must, the verdict indicates that the jury may have accepted that you lost control at the last minute.
...
The sentence will take account of my view of the circumstances of the background of your life as was described by your mother, but that is just a matter of background. The key matters for sentencing are:
It is a serious case involving taking a knife to the meeting with intent to use it at the outset as a threat. I do not put it in the category of those as near murder as you can get.
I have made some reduction in the sentence I would otherwise impose because the assistance of your family led you to eventually admitting to the Police that you had killed Mr Fuard and I made some allowance for the background circumstances of your own life. But they are background circumstances. They do not seriously in my view affect the criminality of what you did.
The case of Mrs Leuta
[21] Before dealing with the submissions of the Solicitor-General in support of his appeal against the sentence, we turn to the case of Mrs Leuta. She pleaded guilty to the offence of manslaughter and was sentenced in the High Court at Auckland to imprisonment for six years.
[22] The terse statement of facts to which Mrs Leuta entered her guilty plea at the earliest opportunity conveys little of the offence or the offender.
[23] For sentencing the Judge had a transcript of a lengthy interview at the Wiri Police Station the day after the homicide, a pre-sentence report, a letter from Mrs Leuta and an extensive report from Dr Tapsell, a consultant psychiatrist who had interviewed Mrs Leuta over 3½ hours and had considered witness statements to the police made available to him by Mr Niven who represented Mrs Leuta. Together this material provides a much more extensive picture of the offence and the offender.
[24] Mrs Leuta is a 30 year old married woman of Samoan birth. She grew up in a violent family environment in Samoa and came to New Zealand as an 18 year old “adopted by her paternal aunt” who, she said, was also violent towards her. She eventually married and bore five children. She is described in the pre-sentence report as a submissive and shy woman whose family and faith appear to fill her life. Her middle child, Liotta, the deceased, was taken to Samoa when he was one month old and “adopted” by his father’s mother. When he was about 4½ he was brought back to New Zealand by his grandmother so that he could attend school here. About six weeks before his death his grandmother, to whom he had closely bonded, was obliged to return to Samoa when her visa expired. Liotta then went to live with his natural parents, but he did not adjust well. He missed his grandmother and reacted adversely to the family environment. He did not sleep well and did not eat properly.
[25] The day before the events with which we are concerned the family had attended a picnic with a church group. Liotta had not eaten much.
[26] On 4 October 2000 Mrs Leuta was at home. She had the care of her five children, the oldest of whom was eight years old. Her husband and one of her children were sick and had spent much time in bed over the preceding days. She had slept poorly over that time. Liotta ate no breakfast. Mrs Leuta was worried about this. She cooked an evening meal she thought might appeal to him. In addition to her usual tasks about the house she spent much of the afternoon with her sick baby. When she called the deceased to come for his meal he refused. She pressed him and he resisted, swearing at her. She became angry and decided to punish him.
[27] Mrs Leuta went to the garage to find something with which to hit her son. She found an old rubber fan belt which was nearly broken in one place. She broke it to form a strap. She also picked up an old car aerial. She went back inside and took Liotta to his bedroom. She sat him on the floor. First she struck him on each hand with the aerial but discarded that because it was too stiff. She then took up the fan belt, folding it so that there were two lengths hanging from her hand. She then beat the child around his upper body. As he moved his hands to defend against the blows she struck him elsewhere.
[28] Eventually the little boy was sent to eat his meal, which he did. After that he was sent to his bed and went to sleep. At about 11.00pm Mrs Leuta went to his room. He complained of a stomach ache. He was given “Eno” stomach salts and his stomach was massaged. He vomited. She changed his clothes and covered him. He complained of feeling cold. He went to sleep but was heard crying at about 12.30am. Mrs Leuta was then attending to her sick baby so her husband went to Liotta. He was coughing and vomiting and soon died with his father holding him.
[29] The pathologist’s report makes grim reading. There were multiple injuries over much of the body except for the lower abdomen, genitals and soles of the feet. It was impossible to give an exact number of individual injuries but the estimates given were said to constitute a conservative and indicative minimum number on the various parts of the body. The report referred to parallel linear bruising (referred to as tram-track bruising) caused by a squared rectangular or cylindrical object. The pattern of bruising indicated a flexible instrument.
[30] On the front of the trunk across a broad area of the chest and upper abdomen extending to the right shoulder and upper arm there were multiple areas of tram-track bruising. There were 27 bruises in this region including about 16 tram-track bruises. On the back and sides there were a further 27 or so tram-track bruises. The arms and hands showed a similar number of such bruises on each side. On the left leg there were 27 bruises including at least 16 tram-track bruises and on the right leg there were 28 bruises including 17 tram-track bruises. The face and head showed some bruising with multiple lacerations of the inner lips. There were multiple fresh scalp bruises.
[31] The pathologist found no definite evidence of previous non-accidental injury. All the bruising had a similar appearance consistent with its having occurred around the same time. There were no injuries to internal organs.
[32] The cause of death was identified as follows:
This child has suffered multiple bruises, primarily on the limbs, back, buttocks and abdomen and chest which has caused bleeding into the soft tissues. This in turn has caused this child to become “shocked” leading to him inhale [sic] vomitus into his windpipe and deep into his lungs, causing his death.
In my opinion death has resulted from aspiration of gastric contents secondary to multiple acute soft tissue injuries.
[33] Mrs Leuta was emphatic in her interviews with the police and the psychiatrist that she struck the deceased only about ten times with the fan belt. In this regard Dr Tapsell’s report states:
Mr [sic] Leuta described a series of events that are in many ways at odds with what I understand other evidence has suggested. In particular, I understand that her report of having hit the boy ten times across the back and arms, with a rubber fan-belt, is at odds with other evidence about the nature, and extent of the wounds suffered by the boy. Despite careful and repeated questioning I was unable to gain an understanding as to why there was such a discrepancy.
...
I must again, however, impress on you my lack of understanding of the discrepancy between Mrs Leuta’s description of her actions, and feelings, at the time of the alleged offence, and other evidence currently before the Court.
[34] In the police interview Mrs Leuta was carefully questioned about other possible causes of the injuries. She referred to her husband having disciplined the child using a belt but said that was some time previously. It seems that she may have been simply in denial of the extent to which she lost control once she embarked upon the beating. She acknowledged that it was her husband calling out to her to stop that brought an end to it.
[35] Dr Tapsell’s report summarises the matter in this way.
Mrs Leuta describes the events leading up to the material time of the alleged offence as being the culmination of a whole range of major stressors acting upon her, with little in the way of support or assistance. Further, she describes a degree of emotional turmoil, engendered by the difficulties she was having in trying to re-establish a relationship with her son (the deceased) after a long period of separation, and under very difficult circumstances. She does describe feeling pressured and frustrated and admits that she acted on the basis of this anger and frustration, in disciplining her now deceased child.
[36] He found no evidence of psychiatric illness or personality disorder.
[37] The sentencing Judge listed five factors he said were in Mrs Leuta’s favour. They were that there were no previous criminal offences; that she pleaded guilty at the earliest opportunity; that there was no evidence of any prior mistreatment of the child; that there appeared no basis for concern of a risk of re-offending; and that for the rest of her life Mrs Leuta would have to live with the knowledge that she had killed her son.
[38] He identified two serious aggravating factors. The first was that the beating was deliberate and calculated as indicated by the location and fashioning of the fan belt. It was not a spontaneous or uncontrolled outburst resulting in a few brief moments of rage. The second factor was the failure to get medical treatment when there were signs of shock and vomiting. However, the Judge said he did not place much weight on this factor.
[39] The Judge referred to seven previous cases involving the killing of young children which he regarded as indicating an appropriate starting point for sentencing of seven to eight years. He then questioned whether the sentencing levels indicated in those cases realistically reflect society’s anger about child homicide cases.
[40] The Judge went on to comment by way of comparison upon the much longer terms of imprisonment imposed in cases of rape, although he did not refer to the obvious distinction between intentional crimes such as rape where the consequence is the very object of the offender’s intention and manslaughter where, although the unlawful act may be intentional, the fatal consequence (by definition) is not.
[41] Having expressed these views, the Judge stressed that he did not see this case as one in which he should try to bring about a substantial lift although he did not make it clear whether that was because of the circumstances of the case or because he saw that as the role of the Court of Appeal.
[42] Taking account of the mitigating factors he had identified the Judge fixed the sentence of six years imprisonment.
The Solicitor-General’s proposal
[43] The Solicitor-General seeks leave to appeal against the sentences in these two cases as inadequate. He has asked the Court to set a level or levels of sentencing for a category or categories of manslaughter into which these cases are said to fall.
[44] The Solicitor-General does not seek the tariff approach to sentencing that this Court has rejected in the past: R v O’Sullivan CA340/93, judgment 15 December 1993, Solicitor-General v Kane CA154/98, judgment 23 September 1998. He has focussed on an identifiable class of manslaughter cases involving the “directed use of deadly force against another”, within which there are distinctive categories of cases where deadly force is used against children, and cases where the deadly force is used by persons in a confrontation that they have brought about or contributed to after having equipped themselves with a weapon. It was submitted that the Court should set a starting point for sentencing purposes in such cases at ten years imprisonment. As we understand the concept of starting point in this submission, it is that the ten year sentence level is a guide to be increased or reduced in a transparent manner according to the seriousness of the case and not just to reflect the personal circumstances of the offender (prior record, guilty plea etc).
[45] We were referred to the emerging recognition of a category of “motor manslaughter” cases. R v Grey (1992) 8 CRNZ 523 and R v McKelvey CA372/97, judgment 25 November 1997 were cited, although they hardly support the proposition advanced. Both judgments draw comparisons with manslaughter sentences in other circumstances. In particular the Court said in Grey (p526):
As has often been said, manslaughter cases cover such a wide spectrum of circumstances that comparisons are particularly difficult, and the Courts have not attempted to define any tariff. It is clear however that for the worst cases, sentences in the vicinity of 10 years have been regarded as appropriate. The analogy has some relevance, to the extent that in a case such as the present one many regard death as resulting from a deliberate, grossly improper use of a potentially lethal object.
[46] In support of the proposed principle it was submitted that the identified class or classes of case involve offenders having “turned their minds to the circumstances and to the consequence of (at least) very serious harm to the victims”. The offenders, from a position of control (through the relationship or possession of a weapon) have engaged in serious violence or caused serious danger. Therefore, their offending should be related to the most serious band of grievous bodily harm cases referred to in R v Hereora [1986] 2 NZLR 164 with the additional factor of aggravation that a life has been taken. It was said that violent homicides of the class in issue are at the end of a continuum of violent assaults with a weapon in respect of which deterrence and condemnation should be principal considerations.
[47] A strong element in the Solicitor-General’s argument was the importance of signalling the unacceptability of conduct which carries the risk of serious harm or death. This is best achieved, it was said, by a clear starting level, with appropriate guidelines that will convey both the seriousness with which deliberately brutal behaviour is regarded, and the determination of the courts to protect the inherent value of human life.
[48] We were referred to statistics showing increasing levels of all forms of serious violence in New Zealand over recent years. In his Conviction and Sentencing of Offenders in New Zealand 1990 to 1999 (Ministry of Justice, Dec 2000) Philip Spiers records a category of “Grievous assault” convictions. These are defined as offences having a maximum sentence of at least five years imprisonment being mostly assaults with a weapon, wounding with intent, and injuring with intent, but also including aggravated wounding or injury, disabling, doing dangerous act with intent, acid throwing, and poisoning with intent to cause grievous bodily harm. These increased from 1990 – 1999 by 108%. Convictions for assaults on children under 14 years increased over the same period by 195%. It is to be noted, however, that homicides, including deaths of children from battery or maltreatment, on the figures provided to us, did not increase over this period.
[49] We were invited to consider a course similar to that adopted by the Court of Criminal Appeal in the United Kingdom in Attorney-General’s Reference No 33 of 1996 (Daniel Latham) [1997] 2 Cr App R (S) 10. The Court there raised the tariff in cases of manslaughter involving use of a weapon taken to the scene by the offender.
[50] There seem to be really two aspects to the case presented by the Solicitor-General. One goes to the levels of sentences for manslaughter where violence is involved. The other is the desirability of fixing one or more guidelines for sentences in this area. The second of these conveniently can be dealt with first.
[51] The difficulty we find with a guideline as proposed can be demonstrated with reference to the decision in Latham cited as pointing the way we should go. In that case the conclusion was expressed as follows (p18):
By this type of case we mean where there is an offence of manslaughter on the ground of provocation without any relationship between the parties, and where a knife has been carried for use as a weapon, and has ultimately been used, often at a time when the user is affected by drink or drugs. We have been persuaded that the tariff for this type of offence is too low. The question therefore arises as to what it should be.
What should the tariff be?
Even when a particular type of manslaughter is isolated from the rest it has to be recognised that it covers a wide field, and if justice is to be done sentencers must not be put in straitjackets, but for the reasons identified in this judgment it seems to us that where an offender deliberately goes out with a knife, carrying it as a weapon, and uses it to cause death, even if there is provocation he should expect to receive on conviction in a contested case a sentence in the region of 10 to 12 years. The alternative would be to say that although the tariff should remain the same the indictment should contain a separate count in relation to the carrying of the offensive weapon for which a separate and normally consecutive sentence should be imposed but that seems to us to be a somewhat cumbersome approach.
[52] After setting that tariff the Court went on to apply it in the particular case before them and, in doing so, demonstrated its limited value. The Court said:
We have already referred to the aggravating features in the present case – the carrying as a weapon of a sinister type of knife, the failure to retreat when there was an opportunity to do so, and the extent to which others were injured in addition to the deceased. Similarly we have identified mitigating features – the youth of the offender and his previous good character, the extent to which he was outnumbered and initially threatened, and his pleas of guilty, which were of special significance in a case in which the prosecution might not have found it easy to persuade a jury that the offender was not acting in reasonable self-defence.
[53] The sentence of five years imprisonment was left undisturbed.
[54] Its limited value is further illustrated by the later decision of the Court of Criminal Appeal in Attorney-General’s Reference No 19 of 1999 (Kitchener) [1999] EWCA Crim 1852 (1 July 1999). In that case the offender had been acquitted of murder on the ground of provocation. The sentence for manslaughter was of imprisonment for five years. The offender had retreated from an altercation with neighbours caused by the barking of his dog. He went to the home of a friend armed himself with a kitchen knife and returned with his friend to find damage to the windows and fence of his house. He went to a neighbour’s house, a fight ensued and the neighbour was stabbed to death.
[55] The Court distinguished the Latham tariff case, although the facts would seem to have fallen within the type of case there described. It was said (paras 19-20):
In our judgment, the circumstances of the present case, as we have endeavoured to outline them, are significantly different from the circumstances in Latham. It is to be noted that, in the course of giving the judgment of the Court in Latham, Kennedy LJ, at page 18, made plain that the sort of case to which the tariff to which we have referred is appropriate was one in which “the offender deliberately goes out with a knife, carrying it as a weapon and uses it to cause death”.
In the present case, as it seems to us, this was not, in the circumstances which we have outlined them, a case of the offender going out in the evening armed with a knife which, in due course, he came to use with fatal consequences. It is of course plain that he armed himself with a knife. But he did so in circumstances in which, having regard to what had earlier transpired in the street where he lived, there was a good reason to believe that there would be very considerable hostility towards him, his family, his home and his dog. True it is that he ought not to have armed himself with a knife in those circumstances. True it is that it would have been better had he got into his motorcar once he had put his dog into it, rather than responding to the taunts of abuse which were being directed towards him by the deceased. But, in our judgment, there are distinguishing features between the present case and Latham.
[56] It is apparent that even in the class of case defined in Latham, the variation in circumstances will be wide. The type of weapon, the purpose for which it is carried, the provocation, the way the weapon is used, the state of affairs at the time it is used, all can vary and impact on the culpability of the offending. So wide is the description of the type of offending, it could encompass the deliberate carrying of a pocket knife which is produced under extreme provocation and leads to a death in circumstances little removed from accident. That is difficult to place in the same type or class as an aggressive offender who avoids conviction for murder on flimsy provocation.
[57] We are concerned that to set a starting point as sought, without closely specifying the features of offending it is to encompass, would have little value. It would risk creating the very inflexibility encountered with the guideline judgment for aggravated robbery sentences in R v Moananui [1983] NZCA 66; [1983] NZLR 537, eventually departed from in R v Mako [2000] 2 NZLR 170. It would divert the sentencing enquiry from the degree of culpability to whether or not the offending fell within the defined category.
[58] We have the same concerns about identifying a category to encompass the use of force against children from which death results. So varied are the circumstances in which such offences may be committed, that to attempt to establish a category that would provide meaningful guidance in assessing culpability for sentencing would be futile. The range of circumstances to be contemplated was referred to in R v Witika [1993] 2 NZLR 424,439. That case represented one end of the spectrum. The offenders, sentenced as parties, received sentences of 16 years imprisonment. Had the principal offender been identified the maximum of life imprisonment was said to have been appropriate. At the other end there are case such as R v Albury-Thomson (1998) 16 CRNZ 79. It is difficult to see how a starting point guideline of ten years imprisonment for the use of force against a child would have helped establish the culpability of the offenders in those two cases.
[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 offences involving one or a limited number of identified features. We decline the Solicitor-General’s invitation to set a guideline as he proposed.
[60] That said, however, where death results, the brutal beating of a child and the carrying of knives and other weapons into inflammatory situations must always be treated as seriously aggravating factors.
[61] The primary arguments for increased levels of sentences for manslaughter involving violence are those of the need for an appropriate margin over sentences of other offences of violence to take account of the loss of life and deterrence.
[62] It is appropriate to keep in mind the nature of the offence of manslaughter. Unlike many other offences the consequence of the offending act (a death) is not intended by the offender save where murder is reduced to manslaughter by provocation causing loss of self-control. It does not follow that where death results from a violent act the culpability of the offender is to be set higher than that of an offender who intentionally inflicts grievous bodily harm. In manslaughter the unlawful act, even if violent, may be comparatively minor. Death may result from the victim falling and striking his or her head. Some care is therefore needed in assessing the argument (in effect) that manslaughter sentences should begin above those for the offending within the more serious band of violent offences referred to in Hereora.
[63] In sentencing in cases of violent offending the element of deterrence must be directed towards the aspect of the conduct of the offender which was intentional and which created the risk of serious harm or death. In the case of manslaughter the likely deterrent effect of sterner sentences must be measured against that aspect, not against the unintended consequence of death. Hence to focus just on manslaughter sentences would be to miss the target.
[64] Of course, in terms of retribution, the consequence of loss of life will be an obvious aggravating factor, as will the likelihood of that occurring. Underlying those matters the level of sentences for similar intentional conduct from which death has not ensued will be a relevant reference point.
[65] In cases where provocation is involved it will be relevant that the violence was inflicted while the circumstances were such that an ordinary person might have, and the offender did, lose the power of self-control because of something done or said by the victim.
[66] Whether or not sentencing levels for cases similar to those before us have been too low can be assessed in the course of considering the separate sentences.
Mr Rauf’s sentence
[67] This offence involved serious violence. A knife was taken to the meeting. It had been obtained and sharpened by Mr Rauf some days earlier. On the Judge’s finding he intended to rob the deceased. He had told others that. According to his statement to the police he pressed to see the deceased’s money. He threatened the deceased with the knife before wielding it. He plunged the blade into the deceased’s chest and struck him about the face and head with the handle. He described the deceased’s cries of pain. He left him to die on the road. Referring to the jury verdict, the Judge accepted that he lost control at the last minute but commented that any provocation must have been very brief. The Judge described the offence as a serious case of taking a knife to the meeting with intent to use it at the outset as a threat. He did not put the offence in the category of those as near murder as you can get.
[68] As already mentioned, in Grey the Court referred to serious cases of manslaughter attracting sentences of ten years. In O’Sullivan, in 1993, for a deliberate killing by shooting after sustained provocation in the form of bullying and threatening, a sentence of ten years was upheld. The judgment contained the following passage:
We have reviewed previous sentences for manslaughter involving the use of firearms. The circumstances all differ. Those [attracting] sentences of or in excess of ten years have involved killings in the context of other serious offending such as drug dealing or robbery or which were accompanied by particular or prolonged brutality or other seriously disturbing features. In R v Kelsey CA188/80 judgment 2 December 1980 it was suggested that a sentence of six years might be appropriate for manslaughter where a firearm or knife was used. More recent cases have resulted in longer sentences in serious cases. That reflects concern at the trend towards more frequent resort to weapons and the need for deterrent sentences to reflect the unacceptability of such conduct.
In this case, consistent with the verdict of the jury, O’Sullivan is to be sentenced on the basis that he acted while deprived of the power of self control. The effective sentence of ten years is longer than previous sentences imposed in that situation. However we are not disposed to interfere with it on those grounds. We consider the Judge was entitled to impose the sentence he did. It is consistent with heavier penalties being imposed for violence involving weapons and not resulting in death. The increasing mis-use of firearms is of concern in the community and sentences in cases where lives are taken should reflect this.
[69] In R v Leonard (CA269/95, judgment 6 September 1995) a sentence of 15 years was upheld in the case of the stabbing of a partner of a violent relationship. Acquittal on the murder charge was explicable only on the basis of doubt whether the offender knew death was likely to ensue. This was a case of which it could be said that it was as near murder as you could get.
[70] Referring by way of comparison to Hereora, had death not ensued in this case (and subject to the provocation) a sentence of up to eight years would not have been out of line for the violent stabbing with intent to cause grievous bodily harm.
[71] If this case were assessed by reference to the guidelines in Mako, a sentence of seven years or more would be within range for the violent stabbing of a taxi driver in the course of a robbery, but where death or permanent disability did not result.
[72] On these authorities, taking the provocation as the Judge assessed it, and considering the prior statements and preparation, and the fact that a life was taken, we consider that a sentence of ten years would be unobjectionable.
[73] There are few mitigating factors. Mr Rauf is relatively young and has only four relatively minor previous convictions – although one was for assault with intent to injure. He and his family co-operated with the police after the killing. He is reported as having low motivation and insight into factors surrounding his offending and accordingly is presently rated as having a high risk of future offending.
[74] As this is a Crown appeal, any adjustment to the sentence should be only such as to meet the clear inadequacy. To that end we give leave to appeal, allow the appeal and substitute for the sentence of seven years a sentence of imprisonment for nine years.
Mrs Leuta’s sentence
[75] The Judge arrived at a sentence of seven to eight years before adjustment for mitigating factors. He did so after referring to Witika, R v Sperry (CA196/90, judgment 3 October 1990), R v Tipene [2001] 2 NZLR 577, R v Graham (CA391/96, judgment 27 February 1997), R v Rakete (CA542/93, judgment 23 May 1994), R v Barrett (CA37/85 judgment 16 July 1985) and R v Iorangi (CA533/99, judgment 30 March 2000). The judgment in Witika refers to the English case of R v Horscroft (1985) 7 Cr App R (S) 254. In that case the Court of Criminal Appeal referred to three broad kinds of cases. The first comprised cases where a child eventually dies at the conclusion of weeks or even months of torture. Witika was such a case, as were R v Haerewa (CA431/99, judgment 3 February 2000) and R v Filimoehala (CA367,387,395,401,415/99, judgment 16 December 1999). The second and third groups of cases were identified respectively as those involving single episodes of cruelty inflicted through rage and those reflecting loss of control through anger resulting in injuries often more severe than might have been contemplated. These two kinds of cases encompass such a wide range of culpability that their identification as sentencing guides again is of limited value.
[76] Previous sentencing decisions in child manslaughter cases must be applied with care to distinguish sentences actually imposed and sentencing levels that would have been appropriate responses to the criminality involved after a contested trial and before mitigating factors peculiar to the circumstances are allowed for.
[77] Some general observations in respect of which there can be no dispute must be kept in mind. Violence inflicted upon a child is worse than that directed at another adult. Defencelessness and vulnerability are significant features, as is abuse of a position of power and responsibility. The fragility of young children, particularly infants, is frequently referred to, and too often overlooked. The lethal consequences of shaking and striking babies is often enough publicised. There can be little reduction in criminality these days for a claim that the danger was not realised.
[78] Next, it is a factor considerably aggravating the seriousness of violence against children that a weapon is used. There can be no blurring of the line between lawful and reasonable reprimand and control of children on the one hand and criminal beating on the other. The courts must clearly and unambiguously support those who are working to stop violence in the home in all its manifestations.
[79] There is a further relevant aspect of violence against children. Perpetrators, in order to avoid exposure of their insidious behaviour, do not ensure proper care and treatment for their victims. That considerably aggravates their culpability. Physical abuse of a lower order is made greatly worse by failure to alleviate pain or discomfort. Failure to get competent help is not readily to be excused.
[80] Of course child homicides often occur in complex relational and domestic situations. They bear upon the offender frequently to evoke sympathy and mitigate the offending. They are to be taken into account for sentencing. But they should not cloud the essential fact that 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.
[81] The circumstances of each case of manslaughter are different. The culpability of the offender is to be assessed in the circumstances. The circumstances of other cases, though a guide, cannot govern. That is why this Court has said repeatedly that trial judges (where there has been a trial) are in the best position to assess the overall culpability of the offender.
[82] In the present case there was no history of prior violence. Mrs Leuta, confronted by a five year old reacting to difficulties in adjusting to a new family environment, decided upon physical punishment. Deliberately she located instruments to effect her purpose. Equally deliberately she took the child to his room and set about breaking his will by beating him. Her accounts suggest that so long as the child refused to eat she continued to strike him. He was beaten all over his body and on the head. He was struck with the fan belt at least sixty times and probably many more. What began as ill-conceived punishment for a young child she could not understand, became objectively a frenzy of violence. It was brutal and cruel. The boy, his resistance broken, was forced to eat. With his stomach full he was sent to his bed, doubtless in agony. When later, in shock, he became ill, he was treated inappropriately, though with some sympathy. Competent treatment then may have prevented his death.
[83] In Tipene, 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 Sperry, 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.
[86] Just as the features of culpability require careful assessment, so too do the mitigating factors. Mrs Leuta, a woman having the responsibilities of five young children, plainly was not equipped with the skills needed to recognise the difficulties for the deceased, her own child but who had lived apart from her in another country for most of his life. He had been thrust into a new family environment separated from his grandmother who had filled the role of his parent and caregiver. Mrs Leuta, also because of her background, lacked a sense of the proper boundaries of child control and discipline. Further, she lacked the insight to recognise the need for proper care when the child became ill and she did not have the capacity to provide it. She was socially isolated, confined to her family duties and relieved only by commitments to her church.
[87] Burdened with the stresses of her sick husband and baby, and having her parental inadequacies exposed, Mrs Leuta acted in a manner that even she, although fully accepting responsibility, could not later recount. Her remorse is absolute. She has taken the life of her son and has been separated from her family who were the focus of her whole life. She pleaded guilty at the earliest stage.
[88] There is no evidence of any previous ill-treatment of her children, nor is she assessed as at risk of future offending.
[89] How then, in this tragic situation she has brought upon herself and her family, is the serious criminality of her conduct mitigated by her personal circumstances?
[90] We were invited by the Solicitor-General to reflect in the sentence level the obligation New Zealand has assumed under the United Nations Convention on the Rights of the Child to take protective measures to protect children from all forms of mental and physical violence. This, it was said, can be discharged in part by sentences with clear deterrent elements. Our acceptance that, in the absence of mitigating circumstances, a sentence of 10 years would have been appropriate (a conclusion with which we do not understand Thomas J to disagree) is acceptance of the validity of deterrence and denunciation in such cases.
[91] On a sentence of ten years an early plea of guilty warrants a reduction of at least two years. The mitigating factors identified by the Judge and those referred to in paras 86 to 88 justify some further reduction. It is perhaps worth noting also that there are four other children whose mother has been taken away from them at critical times in their lives. This is not therefore a case for moving the sentence to the top of the available range. The sentencing Judge recognised that.
[92] We are satisfied the sentence of six years is too low for a serious case with concerning aspects of deliberation, prolonged violence and failure to provide care. The sentencing Judge would have been justified in imposing a sentence of eight years imprisonment. But, since this is a Crown appeal, involving in effect a re-sentencing, in accordance with normal practice no greater increase than the minimum necessary to overcome the inadequacy in the present sentence should be imposed. We therefore grant leave to appeal against the sentence, allow the appeal and for the six year sentence substitute the sentence of imprisonment for seven years.
THOMAS J
[93] My separate dissenting judgment is restricted to the Solicitor-General’s appeal against Mrs Leuta’s sentence of six years imprisonment. I would allow the appeal and substitute a sentence in the range of eight to ten years imprisonment.
[94] There is much in the majority’s judgment which I endorse: the massive brutality of the beating which Mrs Leuta administered to her five year old son is accurately recorded; the vulnerability and defencelessness of young children is realistically portrayed; the lethal consequences of physical violence inflicted upon children is acknowledged; the serious aggravation involved when a weapon is used to inflict the violence is emphasised; and the danger that the perpetrators of violence against children will fail to ensure proper care and treatment for their victims in order to avoid exposure is clearly articulated. I have no quibble with these sentiments.
[95] My difficulty is that, even allowing for the mitigating factors which have been identified, I cannot accept that a sentence of seven years imprisonment in lieu of the six years imprisonment imposed by the sentencing Judge is adequate. The text of the majority’s judgment tends to convey one message; the sentence of seven years another. In the context of this case, irrespective of what is said, adding one year to a six year term of imprisonment runs the risk of being perceived as “tinkering”.
[96] In my view, what is required is a clear indication from this Court that in cases of child killing the sentencing range which has previously prevailed no longer applies. New tariff levels are required to reflect the true culpability involved in such offending. A sentence in the range of eight to ten years imprisonment in accordance with that new tariff range in this case would send an unequivocal message that physical violence against children will not be tolerated and will be met with a severe sentence of imprisonment where the violence leads to the death of a child.
Sentencing policy
[97] A disagreement on the Court, such as the present, can often reflect an underlying difference in fundamental and incommensurable values, or the weight to be attached to such values. These different values result in a different approach. It may therefore be helpful to touch upon the two particular facets of sentencing policy which have influenced my approach in this case.
[98] The first is an orientation towards the victim and the interests of the victim, including in that orientation a profound concern for those potential or prospective victims who may be spared their lives or lasting harm as a result of the sentencing practice adopted by this Court. The second is a deep-rooted respect for informed public concern and public opinion in relation to sentencing policy and practice.
(1) The interests of the victim
[99] Concern for victims is much more prominent in Courts today than in the past. The trend, however, is as yet incomplete. Two classes of people have particularly suffered from this historical languishing of a proper focus on the interests of the victims. They are women and children. Both share a vulnerability to attack by those in the community who are physically more powerful and more aggressive. They, as a class more than any other, are particularly vulnerable to physical exploitation and abuse. The Courts, it seems, have been quicker to adjust sentences to punish and deter those offenders who take, say, a knife with them to create the imbalance of power between them and the victim than to punish and deter those offenders where the imbalance in power between them and the victim is innate.
[100] In this case we are concerned with the vulnerability of young children. They are helpless at the hands of an adult.
[101] The impact of physical abuse on young children is not dissimilar to the impact of sexual abuse on young children. Generally, it is not the immediate physical act or injury which causes negative long-term effects. The long-lasting distortions in the child’s development and emotional state are due more to the environment which the physical trauma creates for the child. (See Brandt F. Steele and Helen Alexander “Long Term Effects of Sexual Abuse in Childhood”, Chap 17 in Sexually Abused Children and Their Families (1981), at 225). Literature on the subject confirms that physical abuse of children by a parent or guardian produces an environment of multiple stresses and difficulties for the children. They live in an atmosphere of fear, distrust and confusion. Emotional and behavioural problems which have been recorded following research and studies include suffering shock and distress; developing low self-esteem; becoming passive, withdrawn, isolated, lonely, rejected, anxious and insecure; becoming aggressive and violent; lacking concentration and having problems at school; lacking the capacity to interact socially and develop relationships with other children or adults; experiencing sleeping problems, including nightmares and bedwetting; developing health complaints such as stomach aches, headaches and asthma; suffering hyperactivity and lack of control; and possessing a greater than ordinary tendency to become delinquent or suicidal. Children who have been subject to physical violence are more likely than others to have an inappropriate attitude to violence themselves. Violence is seen to be part of the family interaction, including violence from those who are closest to them, and violence is adopted as a means of managing stress and resolving the conflicts which they themselves confront. Offenders are likely to become physically violent to their own children. (See B Gillham The Facts About Child Physical Abuse (1994) at 102-103).
[102] The impact of violence in the family is likely to distort the process of socialisation which enables children to participate in the world around them. It has the effect of excluding children, not only from membership of a family, but also from their rightful future. Research shows that violence disables children’s ability to learn in many different ways because it impairs their ability to concentrate and absorb knowledge. It can affect the level of their intelligence. The loss of the opportunity to derive benefit from education is the loss of one of the most fundamental liberties that we enjoy. (See G Maxwell & J Carroll-Lind “Distorted Childhoods: The Meaning of Violence for Children”, Social Policy Journal of NZ (1998) Issue 10, 177, at 187. See also P Shepherd “Family Violence in New Zealand” SET: Research Information for Teachers (1996) 2, at 3; R Inglis, Sins of the Fathers: A Study of the Physical and Emotional Abuse of Children (1978) at 95-96; and Gillham, supra, at 102.)
[103] Results of research also underlines the special vulnerability of children. The findings confirm that the hurt done to a child is often enduring and that, whereas an adult learns to cope with pain, fear, rejection, loss and loneliness, a child is easy to wound and lacks the skills to cope. Loneliness and rejection are the lasting aspects of many hurts. Feelings of unfairness and injustice and fear for the future stay with many children long after the events that generated them. (See Maxwell, supra, at 185).
[104] The behaviour of children who have been beaten and subsequently taken into care has also been observed. They have little or no appetite, and they cower from adults. They exhibit no expressiveness, resembling cases of “shell-shock” in adults. They display a profound blunting of all external manifestations of their inner self. It appears that their ego is not so much distorted or idiosyncratic as completely suspended. They often reveal truncated modes of speech and an inability to comprehend abstract concepts. Their intelligence levels decline along with their sense of self-esteem. Weakened in intelligence and “ego strength” they appear to grow strong in one emotional area only, and that is their capacity to sustain powerful feelings of anger. They tend to build up what has been described as a “reservoir of resentment” representing an abnormally high frequency of anger. (See Inglis, supra, at 86).
[105] These emotional and behavioural consequences have been observed in those children who have survived physical abuse. They portray the iniquity of physical violence against children. But the ever-present danger is that they will be killed. Mrs Leuta’s son suffered this ultimate fate.
[106] Consideration is also due to potential or prospective victims who may not be abused in the future as a result of the impact of sentences imposed by the Court in this and other cases. There is no dispute that the Court’s primary concern in sentencing offenders is the protection of the public. Potential or prospective victims are to be protected as part of this overriding objective. The enduring assumption is that deterrent sentences will deter the conduct at which those sentences are directed, and sentences can and do influence community norms and values. Hence, cases of child-killing presently require a clear weighting in favour of a deterrent sentence which will mark the community’s rejection of physical child abuse and reinforce the conceptions and values underlying that rejection.
[107] In this context, the Solicitor-General made an earnest submission that a clear and strong message is required from the Court to support those social workers working with children at risk. Working at the coal-face, these workers believe such a message would assist them in their efforts to reduce violence against children. I do not doubt the validity of the Solicitor-General’s submission. Both the intrinsic wrong of physical abuse against children and the danger that such violence will lead to a child’s death should be backed by a severe sentence which community workers in this field can utilise in their work. It is, of course, not suggested that a severe sentence would be a panacea for the problem of child abuse, but if the consequence of increasing the armoury of social workers is that some children will be spared inexcusable violence in the future, it is a consequence to be positively desired.
(2) Public concern
[108] There is undoubtedly widespread public concern about the unacceptably high level of physical violence against children in this country. The concern is well-founded.
[109] Statistics on the topic are not as specific or as up to date as one would like, but they serve to illustrate the increasing physical abuse of children. The following data makes disturbing reading:
1997/1998 1775
1998/1999 1660
1999/2000 2370
2001
(incomplete) 1529
Information for the year 2001 is not yet final. (Source: 1997-1999 Ministry of Justice Responses to Crime: Annual Review 1999 and unpublished data for the Years 2000-2001 from the Ministerials Unit, Child Youth and Family National Office).
[110] It is my belief that the public concern, which this data demonstrates is well-founded, should inform the sentencing process.
[111] In many respects, the sentencing process is divorced from the character of the work undertaken by the judiciary. It is a function which has devolved on courts of law and been confirmed by statutory prescription. Implicit in this devolution, however, is the fact that the community has delegated the task of sentencing criminal offenders to the courts. The alternative of private vengeance is as unfeasible as it is unappealing.
[112] Delegating the sentencing function to the judiciary ensures that, as far as is possible, the punishment of criminal offenders will meet the expectations of a civilised community. Those expectations embrace the more enlightened concepts of sentencing such as even-handedness, proportionality, appropriateness, humanity, compassion and fairness. Such qualities are imported into the sentencing process by and through the judiciary who undertake the sentencing task. At base, however, the courts cannot and should not overlook the fact that they are exercising a delegated function.
[113] Inherent in this process is a tension of recurring agitation. On the one hand, the courts must reflect public attitudes and concern in sentencing criminal offenders. On the other, they must resist ill-considered and ill-informed public clamour and outrage, almost universally relating to sentences in particular cases. But the need to resist such public clamour and outrage does not obviate the need to have regard to legitimate public concern and public opinion.
[114] There are a number of sound reasons why the courts must reflect this legitimate public concern. In the first place, it is the necessary concomitant of the fact the courts are exercising a delegated function. As such, the community’s norms and expectations must be permitted to inform the sentencing process. Secondly, public confidence in the administration of justice is vital and, if sentences do not have general acceptance, that confidence will diminish. Thirdly, the public or representatives of the public can and do make a valuable contribution. Standing outside the sentencing process, lay persons are frequently able to discern shortcomings in sentencing practice and policy which may escape those who are closely involved in the process. Sentencing is not just a matter of judicial wisdom. (See Austin Lovegrove, “Judicial Sentencing Policy, Criminological Expertise and Public Opinion” (1998) 31 Australian and New Zealand Journal of Criminology 287, esp. at 309.)
[115] An example of the failure of the courts to have regard to public concern can be found in the courts’ response to sentencing in cases of rape. For many years the public perceived the level of sentences for serious cases of rape to be inadequate to reflect the inherent culpability involved and out of line with the level of sentences imposed in other areas of crime. Failing a response from the courts, Parliament was forced to pass legislation in 1993 increasing the maximum penalty for rape from 14 years to 20 years. In the result, the statutory maximum sentence for rape is substantially higher than the statutory maximum sentence for other crimes of violence. Certainly, the judiciary responded to the legislative direction implicit in the increase in the maximum sentence and a new tariff was fixed. See R v A [1994] 2 NZLR 129. But the legislation should not have been necessary. The judiciary should have been sufficiently sensitive to informed public concern to reflect that concern in their sentencing practice and so bring the sentencing tariff into line with the inherent culpability of the crime.
[116] I believe that the Court should now respond to the widespread public concern at the unacceptable level of physical violence against children with a new tariff structure to be applied in cases where a child is killed. To adhere to the sentencing levels set in the past is to adhere to the community’s norms and expectations of the past. The present problem should be met with a new regime largely unhampered by previous perceptions.
[117] This sentiment was forcibly expressed by the Court of Appeal a decade ago in the United Kingdom in R v Johnson (1990) 12 Cr App R 271, a case of manslaughter involving the death of a three and-a-half year old child. The Court stated:
There is in this case ... a public interest element. The public interest element is not merely that children should be protected but that children should not be abused and those who do abuse children with such a degree of violence, as was this child, must expect and will receive at the hands of the courts condign punishment. If the court were to approach these cases on any other basis, the public would be dismayed that the judges were not imposing sentences commensurate with the seriousness of the offences committed against young children.
[118] I appreciate that the sentence of seven years imprisonment proposed by the majority is an increase of one year on the sentence in the lower Court. But it is a sentence which is arrived at within the present sentencing or tariff structure. Certainly, the indication in the majority’s judgment that the starting point in a case such as the present should be ten years could lead to increased sentences over a period of time. I do not, however, consider this incremental or gradualist approach an appropriate response to the urgency of public concern in this area. What is required is a break with the past and the stipulation of a new sentencing regime in cases involving the killing of a child. Such an approach would require a sentence in the range of eight to ten years in this case.
The appropriate sentence
[119] I propose to first enumerate those factors which point to the need for a more severe sentence. I will then examine the mitigating factors.
[120] First, the beating itself was both deliberate and savage. Although her five year old son had refused to eat on other occasions, the factor which precipitated the present beating was no more than his insistent refusal to eat the evening meal. Mrs Leuta then went to the garage. She took a motor vehicle fan belt and car aerial from the wall. The fan belt was partially broken and she cut or ripped it in two. This provided her with a length of heavy rubber one metre long. Returning to the house she carried the boy into his bedroom. She admitted that she was “very angry”.
[121] At first Mrs Leuta hit the boy with the aerial but quickly decided that it was too rigid. She then folded the fan belt and hit him repeatedly causing multiple “tram-track” bruises on his limbs, back, buttocks, abdomen and chest. There were multiple lacerations of the inner lower and upper lips with some sparing of the middle inner lower lip. While the pathologist identified a minimum of 60 blows, the confluence of some of the bruises, and the fact one bruise might have been caused by more than one blow in the same area, could have masked many more blows. The pathologist specifically stated that his estimate of the number of blows was conservative and indicative of the minimum number present. He thought that injuries to the backs of the boy’s arms and hands and the side of his thighs were consistent with “defence-type” injuries. Yet, Mrs Leuta claimed not to have struck the boy more than ten to 20 times in her statement to the Police and approximately ten times to the psychologist who subsequently examined her.
[122] During this beating the boy was on the floor. Mrs Leuta says that he did not cry, but it is difficult to believe that, at the very least, he would not have been whimpering as he cringed from the blows raining down upon him. This ferocious beating only ceased when Mrs Leuta’s husband, who was in bed in another room, told her to stop. The boy was then made to return to the kitchen table and eat his meal.
[123] Following the beating Mrs Leuta clearly knew that she had gone too far. She repeatedly asked both her son and her husband to forgive her. She went to the bedroom and read the Bible. The son eventually died from aspiration of gastric contents secondary to multiple acute soft tissue injuries. But up to eight hours elapsed between the beating and the boy’s death. Whether his life might have been saved if medical attention had been promptly obtained will never be known.
[124] Notwithstanding that one may suspect Mrs Leuta was beside herself at the time of the beating, her actions in obtaining the aerial and fan belt from the garage, severing the fan belt to form a meter long strip of rubber, taking her son into his bedroom, and shaping the fan belt into two to administer a beating to him, exhibited a deliberateness which is disturbing. The beating was far removed from an impulsive act or momentary loss of temper, and its savagery was well beyond any tenable description of parental discipline. Irrespective of the ultimate cause of death, the boy was put at risk of serious injury or death.
[125] Mrs Leuta may not have intended to kill her son. No doubt, few, if any, parents or guardians who indulge in violent physical abuse of children in their care would intend death to result. But Mrs Leuta undoubtedly intended the serious physical violence that led to her son’s death.
[126] I take the point conveyed in the majority’s judgment that, with the offence of manslaughter, death is not intended by the offender save where murder is reduced to manslaughter by provocation causing loss of self-control (para [62]), and that the likely deterrent effect of sterner sentences must be measured against the conduct of the offender which was intentional and which created the risk of serious harm or death (para [63]). The point I would make is that Mrs Leuta’s conduct in obtaining an aerial and fan belt, fashioning the latter as a weapon and then taking to the boy with the belt about his limbs, back, buttocks, abdomen and chest was intentional. No question of provocation and lack of self-control was present as in the related appeal by Mr Rauf. All that distinguishes Mrs Leuta’s offending from murder is a reasonable doubt that she appreciated the risk of death. The sentence may properly be a deterrent sentence directed to the intentional and deliberate beating which, as a matter of undeniable fact, created for the child a risk of serious harm or death.
[127] The second factor which I would emphasise is the sanctity of life. A five year old boy lost his life. All human life is sacred. The lives of innocent and defenceless children are especially sacred. Young lives are too precious to be put in jeopardy before they have barely begun. This value demands that children be protected from brutality of any kind, particularly violence at the hands of those to whom they must look for affection, care and nurturing.
[128] Sentences in cases of this kind must therefore reflect the culpability inherent in taking the life of a child. The relationship of the child to his or her parent or guardian or other adult into whose care they are entrusted, cannot be other than one of trust having regard to the dominance and power of the adult and the vulnerability and defencelessness of the child. A positive duty exists for those who exercise this dominance and power to protect the child from injury, and certainly to refrain from behaviour which would put the child at risk of death. Because young lives are at stake, no breach of this duty can be brooked. Certainly, Mrs Leuta may have loved her son. She may have thought she was acting for the best. She may now bitterly regret what she has done. But the inherent culpability in bringing to an end the life of a five year old boy is not to be minimised.
[129] Thirdly, it is of paramount importance that this Court impose a sentence which sends to all sectors of the community an unmistakable message that violence to children will not be tolerated. Those who take violence so far as to extinguish a child’s life should know that they will be dealt with severely by the Courts. Not only must the sentence punish the offender, it must also express both condemnation and deterrence.
[130] As already noted, violence to children is prevalent in New Zealand and increasing. (See above para [109]). Certainly, the data is incomplete and not as up to date as one would prefer, but the escalation of serious physical violence towards children is undeniable. Certainly, too, the increased number of convictions may reflect a greater awareness of child abuse in the community and a higher level of reported incidents of assault against children. But, again, the increase and prevalence of physical violence towards the young remains plain to see.
[131] The Solicitor-General is correct. What this data demonstrates is an unacceptable level of “underlying violence” towards children. Death may or may not result. But it remains an ever-present risk when the level of violence is so high. It is this underlying violence which carries with it the risk of fatality which should be the target of a condemnatory and deterrent sentence. Perceived parental rights and cultural differences cannot prevail against violence that may harm and even kill innocent and defenceless children.
[132] In this context New Zealand’s obligations under the United Nations Convention on the Rights of the Child are relevant. Article 19 requires parties to take protective measures, which may include judicial involvement, from all forms of physical and mental violence.
[133] I turn now to the mitigating factors.
[134] Mrs Leuta’s personal circumstances attract a measure of sympathy. They are recounted in the majority’s judgment and need not be repeated (see paras [24] to [26] and [86] to [87]). The sentencing Judge took the view that her subsequent failure to recognise the connection between the injuries she had inflicted on the boy and his vomiting reflected a “lack of insight”. The majority have adopted this view. (See para 86]).
[135] As sympathetic as one may feel, however, the hard reality is that Mrs Leuta’s circumstances are not unique. Indeed, although every case is different, the circumstances are not untypical for this type of offending. The perpetrator has frequently been subjected to violence in his or her own upbringing and has apparent inadequacies in coping with the stresses of living, often under difficult conditions. The fact Mrs Leuta had the responsibilities of a mother of five other children, that her husband was unwell, and that her son was proving difficult following the separation from his grandmother are vissitudes of life which are not so exceptional as to warrant undue recognition when the life of a child is brought to a violent end. Mrs Leuta’s personal circumstances are relevant, but they cannot be allowed to overwhelm the public interest.
[136] A mitigating factor which also requires acknowledgement is Mrs Leuta’s guilty plea. Substantial reductions in the sentence which would otherwise be appropriate have been recognised by the courts for a guilty plea. Such substantial reductions are undoubtedly fully justified where the victim, as in cases of rape and sexual abuse, is spared the ordeal of giving evidence and reliving the ordeal in the courtroom. But in this case the victim is dead. Moreover, Mrs Leuta’s guilt was clear. It has not been suggested that anybody else could have been responsible for the beating of her son. Her plea was probably inevitable. Nevertheless, the guilty plea is to be recognised as a mitigating factor. Although it obviously would have been a short trial, the state was saved the expense and inconvenience of a trial. But I would decline to vest this consideration with a weighting which, in the circumstances of the present case, it must struggle to sustain.
[137] I also accept that Mrs Leuta’s remorse is real. It is doubtful that the reaction of a mother following the death of her child at her own hands could be otherwise. Mrs Leuta must live with the fact that she killed her son for the rest of her life. But this factor is again likely to be a feature common to most cases where the physical violence of a parent or guardian leads to the death of the child in their care. When viewed in perspective, however, it is a valid mitigating factor to be taken into account.
[138] Finally, I would mention as a mitigating factor the fact that the injuries sustained by the child were not the direct cause of death. Mrs Leuta’s son did not, for example, die from brain damage or a punctured lung as a result of a direct blow to the head or chest. Initially, I thought this factor a significant consideration, and in some circumstances that may be so, but on further reflection I do not think it should be given undue weight. The fact a child may die from one or more of the injuries inflicted on him or her may indicate the severity of the physical violence which was used, but ultimately it is the violence which is responsible for the fatality. The pathologist’s finding in this case was that the “multiple bruises, primarily on the limbs, back, buttocks and abdomen and chest ... caused bleeding into the soft tissues. This in turn ... caused this child to become ‘shocked’ leading to him inhale (sic) vomitus into his windpipe and deep into his lungs, causing his death.” Hence, the pathologist’s opinion that death “resulted from aspiration of gastric contents secondary to multiple acute soft tissue injuries”. In the circumstances, the nexus between the beating and the boy’s death is sufficiently close to make any distinction on this ground an unnecessary refinement. Mrs Leuta must accept criminal responsibility for the killing of her son.
[139] Furthermore, Mrs Leuta failed to obtain medical assistance for her son. Even if it is accepted that she lacked insight, it is difficult to believe that she could not understand or discern that her son needed medical attention. As observed in the majority’s judgment (para [79]), in order to avoid exposure perpetrators of violence against children do not always ensure proper care and treatment for their victims. If present, this factor aggravates their culpability. On the material before the Court, however, it is not possible to be certain of anything other than that Mrs Leuta was, for one reason or another, indifferent to the seriousness of her son’s plight.
[140] Again, in my respectful view, it is more accurate to say, as the majority do in para [88], that there is no evidence of any previous ill-treatment of Mrs Leuta’s children than to say, as in para [82], that in the present case there was no history of prior violence. Of course, the Court can only sentence Mrs Leuta on the basis of the facts as presented to the Court, but that does not mean that the absence of evidence on the point should be advanced as a positive factor in mitigation of her sentence. The Court simply does not know whether there have been previous incidents of abuse or not. While I fully accept that Mrs Leuta must be sentenced on the basis of this one incident, I would resist elevating the absence of evidence on the point into a positive virtue.
[141] Looking at these mitigating factors both individually and in the round, I cannot agree that they warrant a reduction of three years from the starting point. The sentencing Judge adopted a starting point of seven to eight years and therefore deducted one to two years for the mitigating factors which he identified when arriving at a sentence of six years. The majority are prepared to take a starting point of ten years but then substantially increase the allowance for the mitigating factors to three years. Having regard to the level of violence towards children and the legitimate public concern about that violence, I believe it is a mistake to increase the reduction of one to two years allowed by the sentencing Judge to three years in this Court. Together with the reasons given in justification for this reduction of three years, the adjustment serves to undermine or negate the suggested increase in the starting point and, in demonstrating how it is possible to get from ten years to seven years on the facts of this case, is likely to send precisely the wrong message to sentencing Judges.
[142] Moreover, while I acknowledge that it would have been open to the sentencing Judge to disregard the previous sentencing levels or tariff for child killing and impose a higher sentence in this case had he been minded to do so, he should not be criticised for having had regard to sentencing precedents. The Judge referred to no less than seven previous decisions of this Court, including the most recent case of R v Iorangi (CA 533/99 and 534/99, 30 March 2000). Mr Iorangi had pleaded guilty to a charge of manslaughter. Unable to stop his 17 month old son crying, he had lost his temper and hit his son on the back, shaken him and then thrown him violently three metres across the room. A number of earlier decisions of this Court were reviewed and the sentence of four and-a-half years imprisonment which had been imposed by the sentencing Judge was held to be a “proper sentence”. I tend to think that, before this Court looks to sentencing Judges to increase the sentences imposed in cases of child killing, it is for this Court to provide a positive lead.
[143] Standing back, therefore, and giving due weight to both the aggravating and mitigating factors, and having regard to the fact that this is an appeal by the Solicitor-General, I do not see how the sentence in this case could be less than in the range of eight to ten years imprisonment. Anything less will fail to reflect the culpability inherent in killing a child; the prevalence of physical abuse against children in this country; the public’s acute concern at the level of this violence; and the public’s abhorrence of the mindless or reckless beating of innocent and defenceless children. Most importantly, anything less will fail to clearly demonstrate that the existing tariff or sentencing levels for this kind of case has been displaced by a new and more stringent sentencing regime. There can be no justification at this time for a muted message.
Solicitors
Crown Law Office, Wellington
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URL: http://www.nzlii.org/nz/cases/NZCA/2001/283.html