[1] Joshua Woodcock appeals against his conviction following trial by a jury in the High Court at Rotorua in September 2009 on charges of manslaughter, causing grievous bodily harm with intent to cause grievous bodily harm, assault of a child and wilful neglect. Mr Woodcock also appeals against his sentence of 12 years imprisonment.[1]
[2] Mr Woodcock’s notice of appeal raised a number of challenges to his conviction. However, in this Court his counsel, Mr Pyke, limited oral argument to the single ground of whether the trial Judge misdirected the jury on its power to return majority verdicts. Mr Pyke did not address argument on the remaining grounds of appeal and we are satisfied they are without merit.
[3] Mr Woodcock maintains his appeal against sentence, which we will address separately.

Facts

[4] Mr Woodcock was the father of Sarah Woodcock-Haddock. She died in March 2005 when she was a little over three months old. Her death was caused by a brain haemorrhage resulting from a four centimetre skull fracture. The likely originating cause was her head’s sudden impact with a board or padded area such as carpet; and the likely site of impact was at the back of the head somewhere behind the ear.
[5] According to a pathologist called by the prosecution, very considerable force is needed to fracture the skull of a young child. The fatal injury, which could not have been accidental, was inflicted about 12 hours before Sarah died. It was common ground at trial that the perpetrator could only have been her father or her mother, Ms Jaymie Haddock. The couple were then living together in a rental property in Putaruru with their two older sons.
[6] A post-mortem conducted following Sarah’s death disclosed the existence of other substantial injuries. She had suffered eight rib fractures and a haemorrhage in her left chest wall, most likely caused by an adult leaning on her chest with the knee slipping downwards and tearing tissue under the skin. She had suffered a tear to the upper fremulum in her mouth about four to seven days before death. She presented with bruises to her jaw and neck, most likely caused by applying force from fingers or knuckles within two to five days before death. Finally, within that same period, she had suffered four bruises to her chest and her thymus gland, an organ positioned in the upper chest behind the sternum. The level of force required to cause these bruises was the same as that required to cause equivalent bruising in an adult.
[7] When interviewed by a police officer, Mr Woodcock admitted that he had seen bruises on Sarah when bathing her. His statements to the officer could be construed as an admission that he had struck her. But he denied ever inflicting harm intentionally. Significantly, also, he doubted that Ms Haddock could have been involved in injuring Sarah.
[8] Mr Woodcock was a good father to the two older children. Initially he had been a good parent to Sarah too, at least until the last week or two of her life. On the Crown case, Mr Woodcock then began the chain of abuse which led to his daughter’s death. At trial he did not challenge the medical evidence about Sarah’s injuries. His defence, run by Mr Temm, was that the jury could not be sure that he was responsible because it could not exclude Ms Haddock.
[9] Ms Haddock had been convicted at an earlier trial on one charge of wilful neglect arising from the delay in seeking medical assistance for Sarah following her fatal injury. She was sentenced to a term of two and a half years imprisonment. She gave evidence for the Crown at Mr Woodcock’s trial.

Majority verdicts

[10] The principal issue at trial, assuming that Mr Woodcock struck the fatal blow, was whether he was guilty of Sarah’s murder. The jury acquitted him on this charge but, by a majority of 11 to one, convicted him of manslaughter. It also returned majority guilty verdicts of 11 to one on four of the other charges. It was unanimous in its verdict of guilty on the final charge of wilful neglect.
[11] The existence of the majority verdicts and two relevant directions given by the trial Judge, Wylie J, provide the grounds for Mr Woodcock’s appeal.
[12] Before 29 June 2009 the law required that all verdicts returned by juries sitting in criminal trials be unanimous. The enactment of s 29C of the Juries Act 1981,[2] which came into force on that date, brought about a significant change in the administration of criminal justice by allowing for majority verdicts in certain specified circumstances as follows:

Criminal cases

(1) In this section, majority verdict means, in relation to a jury that, at the time of its verdict, consists of a certain number of jurors, a verdict agreed to by all except 1 of them.

(2) The Court may accept a majority verdict in a criminal case if—

(a) the jury, having retired to consider its verdict, has deliberated for at least 4 hours; and

(b) the jurors have not reached a unanimous verdict; and

(i) that there is no probability of the jury reaching a unanimous verdict; and

(ii) that the jury has reached a majority verdict; and

(d) the Court considers that the jury has had a period of time for deliberation that the Court thinks reasonable, having regard to the nature and complexity of the trial.

(3) If the case involves 2 or more charges, or 2 or more persons charged, the Court may accept a majority verdict in relation to 1 or some of the charges or persons charged, in which case nothing in this section applies to the other charges or the other persons charged.

(4) Nothing in this section—

(a) prevents the Court from taking a poll of the jury; or

(b) affects section 339 of the Crimes Act 1961 (which relates to criminal cases where part of the charge is proved).

(5) If, in terms of section 339 of the Crimes Act 1961, the crime charged, as described in the enactment creating the crime or as charged in the count, includes the commission of any other crime, the Court may accept a majority verdict on the crime charged instead of a unanimous verdict on the included crime.

[13] Both Mr Pyke and Ms Laracy, who appeared for the Crown, accept that s 29C maintains the primacy of a unanimous verdict. The exceptional nature of a majority verdict is affirmed by the trial Judge’s residual discretion as to its acceptance, to be exercised only after satisfaction of four statutory preconditions. The first three are of a factual nature. The fourth requires a judicial evaluation, not of the reasonableness or otherwise of the verdict, but of the length of the deliberation process having regard to the nature and complexity of the trial. In practice, that evaluation will be made prior to satisfaction of the third precondition; that is, before the jury foreperson has made his or her statement in open court, but after the foreperson has confirmed to the Judge both that there is no probability of the jury reaching a unanimous verdict and that it has reached a majority verdict.
[14] Mr Pyke submits that Wylie J erred in two material respects when directing the jury on majority verdicts. His written submissions filed in support of Mr Woodcock’s appeal extensively reviewed authorities on English and Australian legislation allowing for majority verdicts. However, we are not satisfied that they assist in determining this appeal. That is because the terms of s 29C are a self-contained code differing materially from legislation elsewhere. We propose to determine Mr Woodcock’s appeal primarily by reference to that statutory provision.

Conviction

(1) Summing up

[15] Mr Pyke’s first challenge is to these passages from Wylie J’s summing up to the jury on the morning of 14 September 2009, following one week of evidence and addresses:

[166] The law requires you to try and reach a unanimous verdict on each charge. Unanimous means that you must all be agreed on the verdict, whether it is guilty or not guilty. As I have already pointed out to you, you can reach different verdicts on different charges.

[167] You probably know that it is sometimes possible to bring in a majority verdict. That can only happen if various circumstances exist which will not arise for some time. If and when that time arises, I will explain it further. You should be aware that a majority verdict, if we get to that point, will require at least 11 of you to agree.

[168] How you carry out your deliberations and how much time you need is entirely a matter for you. I would simply say that there is no rush. It may be you reach your conclusions in a short period of time. On the other hand there are some complex matters in this case and it may take you a while. Your deliberations should take into account that your verdicts are important both to the accused and to the Crown. It is a serious task so you should give it as much time as you think it needs. There is no pressure.

[16] Mr Pyke submits that the Judge erred by prematurely referring to the possibility of majority verdicts; and that this reference may have partly created what he contends are problems which allegedly arose in the jury’s deliberative process. In particular, he says, Wylie J should not have identified the numbers of jurors necessary to constitute a majority.
[17] We disagree. Wylie J opened the challenged passages with a simple and unambiguous direction to the jury to attempt to reach a unanimous verdict on each charge.[3] With equal clarity and simplicity, he defined a unanimous verdict as one on which “you must all be agreed”. And, as Ms Laracy submits, the Judge had independently emphasised the requirement for unanimity. His issues paper on the substantive charges, delivered to the jury contemporaneously with his summing up, was headed with this emboldened statement:

Note: You must seek to be unanimous in relation to all of your answers.

[18] Against that background, the Judge moved logically to the possibility of the jury returning a majority verdict and its constitution.[4] His observation that the jury was probably aware of the possibility of returning a majority verdict in some circumstances recognised that s 29C was enacted against a background of public debate which was frequently and critically reported by the media. While his direction would have benefitted from an additional sentence at the end of [167] to the effect that “In the meantime, however, you should make every effort to achieve a unanimous verdict”, its omission was not ultimately material.
[19] In the absence of a statutory prohibition, provision of a brief and accurate summary of the law on a subject central to the jury’s deliberative process was a matter solely within the Judge’s discretion. By that means Wylie J was pre-empting

the risk of the jury proceeding from the outset on a legal misunderstanding. And the jury may have later considered it was misled if the judge had not expressly referred to the possibility of majority verdicts and it had returned, say a day later, to be advised formally of its power for the first time.

[20] The Judge cannot be criticised for identifying the number of jurors necessary to constitute a majority. That step, if anything, buttressed the unanimity direction by signalling to the jury the numerically limited nature of the majority exception. Mr Pyke does not otherwise criticise the content of Wylie J’s direction. We reject Mr Woodcock’s first ground of appeal.

(2) The supplementary directions

[21] Mr Pyke’s second challenge is to the adequacy of Wylie J’s supplementary directions to the jury during its deliberative process.

Circumstances

[22] At 3.55 pm on 14 September, after deliberating for just under four hours, the jury passed this written communication to the Judge:

If the jury cannot agree on five of the charges but can agree on one of them, what is the outcome?

Can we please have “beyond reasonable doubt” defined again.

[23] Wylie J then conferred with counsel. Both endorsed his proposal to direct the jury (“the first supplementary direction”) in terms later recorded in a Bench Note:

I advised the jury that counsel and I agreed that the first question posed by them is premature and that it should not be answered as yet. I advised the jury that the circumstances in which majority verdicts are available have simply not arisen and it is important that the second question be dealt with to ensure that they fully understand what a reasonable doubt is, before they reach any verdict and before there is any need to address any issues relating to majority verdicts.

(Emphasis added.)

[24] The Judge made further inquiries later in the day. At 5.25 pm he was advised that the jury had made “slight progress” but desired to retire for the night. He permitted the members to separate and return to their homes for the evening. The jurors were directed to come back to the Court at 9.30 am on 15 September to resume deliberating.
[25] The material events of the next day are best summarised in Wylie J’s bench note (No 10) which is reproduced in full as follows:

[1] At approximately 12:20 pm, I received an indication from the Court Attendant that the jury have agreed verdicts, some or all by a majority.

[2] I saw counsel in open court and advised them of this communication. I asked to hear from counsel whether they considered it was appropriate to now accept a majority verdict on any or all of the counts.

[3] Ms Gordon on behalf of the Crown indicated that the Crown accepts that it is appropriate to accept majority verdicts on any or all of the counts, but submitted that the jury needs to be brought back into Court and given a direction in relation to majority verdicts.

[4] Mr Temm on behalf of the accused agreed with the submissions made by Ms Gordon, noting that the jury have not received a majority verdict direction as yet. He expressly accepted that it is now appropriate to accept majority verdicts on any or all of the counts.

[5] I agree with the submissions of counsel. Much more than four hours has passed since the jury retired. In my view the jury has had reasonable time for deliberations having regard to the nature and complexity of the trial.

[6] In anticipation of counsel’s view, I had prepared a draft majority verdict handout which was distributed to counsel for their consideration. Neither Ms Gordon nor Mr Temm took issue with the majority verdict handout.

[7] At 12:42pm, I then called the jury into Court and directed them as follows [“the second supplementary direction”]:

Mr Foreperson and members of the jury, we have reached a point where I have been told by the Court Attendant that you may be able to reach verdicts, but that they may be majority verdicts.

We have reached a point [where] it is possible for you to deliver a verdict with 11 of you agreeing. In other words, if only one of your number is in disagreement, then you may proceed to verdict. If you do not have 11 people agreeing, you are not yet in a position to give a verdict. If you reach the stage where you think you will not get 11 agreeing, then I would ask you to let me know.

I mentioned earlier that your duty was to try and reach unanimity. The law says that after four hours, once I as the Judge decide that it would be reasonable given the nature of the case to allow a majority verdict, I can do so.

Having discussed the issue with counsel, I have reached the decision and so I am now telling you that a majority verdict is permissible.

There is one more requirement though. Before you deliver a verdict of 11 to 1, as a group you must be agreed that it is not probable you can reach a unanimous verdict, that is 12 to 0. This requirement is so important that your foreperson will be asked to confirm in Court that as a group you are of the view that it is unlikely you will achieve a 12:0 verdict. You should keep trying to achieve unanimity until you are agreed that it is not likely to happen.

You can bring in unanimous verdicts on some counts, and majority verdicts on others.

I have prepared a majority verdict handout which I will ask the Registrar to hand to you shortly. It directs you as to what you need to do before I am in a position to accept majority verdicts.

I will ask the Registrar to copy this handout and to make copies available to you. I will then ask you to retire and consider it and what I have said to you. We can then review whether you are in a position to advise me in relation to this handout.

[8] The majority verdict handout is attached to this Bench Note. It was copied and made available to each juror immediately after they retired.

[26] The jury resumed deliberating for a further hour and a quarter before advising that it was in a position to return majority verdicts. Wylie J conferred with counsel who concurred with his decision to accept majority verdicts. By then he was satisfied that all jurisdictional preconditions had been met. Indeed, he had reached that conclusion before giving the second supplementary direction at 12.42 pm.
[27] Mr Pyke’s argument has two components.

(a) Wrongful deliberation

[28] First, Mr Pyke submits that, when advising the Judge at 12.42 pm on 15 September that it had reached majority verdicts, the jury had already been deliberating prematurely on a majority verdict basis, disregarding the unanimity direction given the previous day and without the benefit of an express direction. He says the Judge’s second supplementary direction was an unsuccessful attempt to rectify the problem; if anything, it had the effect of endorsing what had already allegedly occurred. He says the Judge’s direction to the jury to maintain their objective of achieving unanimity until they were agreed that that result was not likely failed to address what had actually occurred, probably commencing before the jury first communicated with the Judge and he issued his first supplementary direction on the previous day. He says this was well prior to expiry of the four hour qualifying period of deliberation.[5]
[29] We do not accept Mr Pyke’s submission. Its underlying premise that by 12.42 pm on 15 September the jury had been deliberating on the basis of possible majority verdicts basis is conjectural. There is no evidence in support. The jury’s advice after deliberation for a day in total that it had majority verdicts says nothing about events occurring during the intervening period. It would be improper and unproductive for this Court or counsel to speculate. If anything, the jury’s response is consistent with an inference that it had been striving for unanimity in accordance with the Judge’s directions given in summing up and repeated in the first supplementary direction.

(b) Second supplementary direction

[30] Secondly, Mr Pyke submits that the jury required a much firmer direction at 12.42 pm on 15 September, to the effect that it was improper to reach majority verdicts at that point and that it was obliged to reach unanimous verdicts, with a modified Papadopoulos[6] direction being appropriate.
[31] We disagree. To answer Mr Pyke’s second point first, the jury was not bound to a course of unanimity; by then the first two jurisdictional requirements for majority verdicts had been satisfied. Nevertheless, Wylie J expressly directed the jury for the third time on the desirability of unanimity. The Judge’s advice of the foreperson’s prospective obligation to state in open court that there was no probability of the jury reaching unanimous verdicts reinforced the exceptional nature of a majority verdict.[7] And, while s 29C does not require a judge to give a majority verdict direction, we agree with Ms Laracy that it was an appropriate step in view of the foreperson’s duty.
[32] Moreover, the jury did not require a direction that it had acted improperly in reaching majority verdicts at 12.42 pm on 15 September. It had not acted improperly. Both the first two statutory preconditions had been satisfied and the jury was by then entitled to reach a majority verdict, regardless of whether the Judge had given a direction.
[33] It is not uncommon for a jury to advise a judge of an inability to agree unanimously or that its members are divided in the result along numerical lines. The jury’s communication after lengthy deliberation was more in the nature of a progress report, or the lack of it. It was not an expression of finality, as shown by the jury’s resumption of its deliberations following the Judge’s second supplementary direction. Wylie J’s response was orthodox both in its summary of the jury’s legal power and in emphasising the primacy of a unanimous verdict. He was by then satisfied that the fourth statutory precondition for acceptance of a majority verdict had been met. Nevertheless, he made a final request to the jury to seek unanimity.
[34] Mr Pyke’s submission that Wylie J erred in not giving a modified Papadopoulos direction is misconceived, especially where neither counsel sought one. A Papadopoulos direction would have been confusing and superfluous. Its purpose is to deal with the situation where a jury communicates to the Judge its inability to reach a verdict recognised by law. It is designed to avoid the prospect of what is known colloquially as a “hung jury” and a retrial.[8] In this case, however, the jury had expressly communicated its ability to reach lawful verdicts, subject only to the qualification that they were of a majority nature.
[35] Significantly, at trial the Crown Solicitor, Mr Pilditch, and Mr Temm for Mr Woodcock, endorsed the process followed by Wylie J. Mr Pyke was unable to identify any act or omission by the Judge which might constitute a misdirection or breach of s 29C. Nor did he suggest that the Judge erred in a reviewable sense in exercising his discretion to accept the jury’s majority verdicts.
[36] It follows that we are satisfied Wylie J did not err when directing the jury on majority verdicts and that Mr Woodcock’s convictions did not result in a miscarriage of justice.

Sentence

[37] Wylie J adopted a starting point of 11 years imprisonment when imposing sentence on the lead or index charge of manslaughter. The Judge accepted the Crown’s submission that, on the totality principle, an upward adjustment was appropriate to take account of the additional offending. He fixed 18 months as appropriate, adjusting the starting point to twelve and a half years. He then allowed a credit or a discount of six months for Mr Woodcock’s previous good record and his age at the time of the offending. The final sentence was 12 years imprisonment.
[38] In this respect, experienced trial counsel were not far apart on the appropriate range. Mr Pilditch submitted that the base starting point should be in the vicinity of ten to twelve years imprisonment, with an upward adjustment of two years for the additional offending; that is, a total of 12 to 14 years. Mr Temm submitted that the same overall starting point should be in the range of ten to 11 years.
[39] Mr Pyke does not challenge the Judge’s adoption of the base starting point on the manslaughter charge of 11 years imprisonment. However, he identifies an element of double counting in the ultimate starting point of 12 and a half years. Ms Laracy accepts that the Judge factored the injuries inflicted on Sarah in the week before the fatal blow into his calculation of the base starting point and again when adjusting the upwards. However, even if the Judge did double count, our function is to determine whether the final sentence was manifestly excessive, regardless of its composition.
[40] The primary inquiry is into the base starting point attributable to the manslaughter conviction. While only one fatal blow was struck, it must have been inflicted deliberately and with very considerable force. A baby’s skull is flexible, because the bones are not then fused together, and relatively hard to fracture. As noted earlier, the injury was sustained either when Sarah’s head was struck against an object, or an object was struck against her head. Wylie J, who had the benefit of hearing the evidence, likened the circumstances to the use of a weapon.
[41] Ms Stallard, junior counsel for the Crown, has prepared a summary schedule of sentences considered by this Court on appeal and imposed in the High Court in child manslaughter cases since 2001. We have appended her schedule as a helpful summary of recent authorities. It is understandable that all the sentences are not necessarily reconcilable given the factual differences of each case. However, the more serious have attracted a starting point of ten years and above and most incorporate the aggravating feature of prior offending which establishes a pattern of abuse. The absence of that feature, allowing the fatal blow to be properly characterised as an isolated event evidencing a momentary and uncharacteristic loss of control, may operate to mitigate the starting point depending on the circumstances.
[42] In our judgment the previous decisions of this Court justify a starting point of ten years imprisonment for Mr Woodcock on the manslaughter charge. The dominant sentencing principle is to denounce and deter the gratuitous and extreme physical abuse of a baby by a parent or caregiver in a position of trust and responsibility. The elements of deliberation, force and vulnerability of a three month old child placed the circumstances of this offending in a serious category. (Indeed, Mr Woodcock may have been fortunate to have escaped a conviction for murder.)
[43] Mr Woodcock’s culpability was compounded by his related offending, meriting a significant increase in the base starting point. He was convicted of causing Sarah grievous bodily harm and twice assaulting her in the week prior to her death, causing serious injuries. Wylie J imposed concurrent sentences of eight years imprisonment for causing grievous bodily harm and 18 months imprisonment for each assault. We are satisfied that these sentences would have been justified if Mr Woodcock was convicted of the three offences on a standalone basis.
[44] The pain caused by each assault must have been severe. The assault convictions show that Mr Woodcock had embarked on a sustained course of violence towards his baby daughter which eventually led to her death. As Ms Laracy submits, the pattern of brutality established by this offending takes Mr Woodcock’s case out of the category where the fatal blow may be explicable as an isolated loss of self-control.
[45] Mr Woodcock was also convicted on the separate charge of wilful neglect for failing to seek medical assistance for Sarah following his fatal attack upon her. Wylie J imposed a concurrent sentence of four years and nine months imprisonment for this offence. Its circumstances were particularly callous. While there is no affirmative evidence that early medical intervention may have saved Sarah’s life, Mr Woodcock’s failure to act deprived his daughter of that opportunity and compounded her suffering. This Court has recently upheld a sentence of four and a half years imprisonment imposed on a parent who was convicted of wilful neglect in similar circumstances.[9]
[46] When Mr Woodcock’s additional related offending is considered in totality, but on a standalone basis as if Sarah had not died, a sentence in excess of ten years imprisonment would have been justified. Applying the totality principle to the base starting point of ten years imprisonment, an increase of two and a half years to take the aggravating features into account could not be challenged. We appreciate that Wylie J may have double counted these factors at both the first and second stages. But the end result of a 12 and a half years starting point is consistent with the approach of a Full Court of this Court in R v Tipene.[10]
[47] Mr Pyke does not challenge the credit or discount of six months given by Wylie J for Mr Woodcock’s age and previous good character.
[48] In our judgment, an end sentence of 12 years imprisonment reflects what this Court said in R v Leuta:[11]

[T]he essential fact [is] 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.

Result

[49] Mr Woodcock’s appeal against conviction and sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

WOODCOCK: case analysis – manslaughter of children[12]
Case	Facts	One-off?	Mental illness?	Plea	Remorse?	Rehabilitation	First instance decision	Appeal starting Point	End Point
R v Tipene[13]	Ms Edmonds killed 6 ½ year old daughter by several severe blows to head. Fatal blows culmination of months of abuse. Mother’s partner, Ms Tipene, sentenced to 18 months for ill treating child. Serious and continued physical abuse from both – punched, kicked, slapped etc. Ultimate cause of death was brain being starved of blood from head injuries.	No. Serious and continued physical abuse in months leading up to death. Also numerous other injuries including broken bones. Over 20 injuries to all parts of body.	No, alcohol and drug addiction. Ms Edmonds maintained child was result of a rape and she was not ready for care of her. Ms Tipene also had treatment for drugs, says she suffered from depression and suicidal ideation.	Early guilty plea to man-slaughter. Admitted physical assaults and accepted responsibility. Ms Tipene also pleaded guilty - admitted to causing black eyes, bruising, bite marks.	Yes, could not explain why she treated child that way. Took full responsibility. “Shocked” by what happened. Claimed to be caught up in a situation she could not influence.	48 previous convictions, anger problems and high risk of reoffending. 15 previous convictions for minor matters, no previous imprisonment.	7 year starting point, 5 year end sentence. Ms Tipene sentenced to 18 months imprisonment for ill treatment.	On SG appeal, CA held 12 years for principal offending. 4 year starting point for Ms Tipene.	8 years imprisonment. Ms Tipene sentenced to 2 years, 3 months imprisonment.
R v Waterhouse[14]	Charged with murder of 3 year, 10 month boy living with appellant in foster care arrangement. Appellant noticed popcorn in child’s lunchbox that wasn’t his. Pulled child across lounge chair so back resting on arm of chair and punched in stomach. Appellant put him to bed, later carried him to toilet to vomit, and returned him to bed when he became “floppy”. Lapsed into unconsciousness. Appellant told wife to phone ambulance but already dead. Post-mortem showed cause of death 10 cm laceration to intestine caused by stomach blows.	Yes. Pattern of injuries to other parts of body including bruising to lips, back, buttocks, arms and legs – but all injuries fresh and occurred at same time (indictment contained 1 count of murder).		Convicted after jury trial of manslaughter, not guilty of murder (two trials – jury couldn’t agree at first)	Yes.		Starting point of 12 years, end sentence of 10 years imprisonment with MPI of 6 years.	CA said culpability similar to Leuta (in terms of cruelty and extent of abuse of trust) where CA subscribed to 10 year starting point. While present Court was not prepared to say starting point above 10 years was beyond available range, Court could not see justification for 2 year increase on starting point – 11 years was as much as could be justified.	8 years imprisonment (MPI 5 years).
R v Ngati[15] (High Court)	Mother and her partner beat 3 year old child on several occasions over 2 days. Mother severely beat child for soiling himself. Later hit him twice when he urinated on floor and mattress. Partner struck child with baseball bat on several occasions. Medical help delayed. Victim died next morning from swelling to brain.	No. Mother regularly hit children with objects for disciplinary purposes, but severe beating on this one prolonged occasion.	No. Stress and lack of sleep at time of offence.	Found guilty by jury on manslaughter, ill-treatment, failing to provide necessaries.			Lang J adopted starting point of 11 years for mother and 10 years for partner. End sentences of 8 ½ years imposed for both.

WOODCOCK: case analysis – manslaughter of children[16]
Case	Facts	One-off?	Mental illness?	Plea	Remorse?	Rehabilitation	First instance decision	Appeal starting Point	End Point
R v Wright[17]	Mother smothered 8 month son with blanket.	No. Smothered baby on number of occasions in weeks preceding death. Caused death by smothering.	Munchausen’s Syndrome by Proxy, which was exacerbated by post-natal emotional difficulties.	Guilty plea to manslaughter. Initially charged with murder. Crown amended indictment after receiving evidence of mental disorder.	Voluntarily admitted to smothering baby on a number of occasions. Had been assessed as cot death prior to confession. Never denied causing death, but denied intention.		10 year starting point, 7 year end point.	10 years taken by trial Judge not an inappropriate measure of criminality.	4 years imprisonment.
R v Leuta[18]	4 ½ year old boy subjected to deliberate, prolonged, brutal beating by mother with weapon. When refused to eat evening meal, Mrs Leuta lost control and administered fatal beating with broken rubber fan belt. Prior to death showed signs of shock and vomiting but no medical treatment sought. Multiple injuries over whole body, genitals, soles of feet. Cause of death aspiration of vomit.	Yes.	No, but difficult situation with care of other children, sick husband, baby and “social isolation”.	Early guilty plea	Yes.		Starting point of 7 – 8 years. 6 year end sentence.	10 years imprisonment.	7 years imprisonment.

WOODCOCK: case analysis – manslaughter of children[19]
Case	Facts	One-off?	Mental illness?	Plea	Remorse?	Rehabilitation	First instance decision	Appeal starting Point	End Point
R v Broadhurst[20]	Evidence consistent with 2 year old being violently shaken by mother’s partner and slammed down hard on hard padded surface, like carpeted floor. Fracture to skull – large amount of force required. Also cut lip and evidence of older brain injury.	No. Preceded by at least one episode of violence.	No evidence of extreme emotional stressors.	Charged with murder. Found guilty of manslaughter after jury trial.	Not expressed.	Assessed at low risk of re-offending.	Starting point 8 ½ years upheld by CA.	8 ½ years imprisonment. 6 months credit for age (18 years), and 6 months credit for attempts to seek medical assistance.	7 ½ years imprisonment.
R v Robinson[21] (High Court)	Manslaughter of 14 month baby by foster mother. R called ambulance saying victim had fallen over. Victim was hospitalised and life support turned off. However, autopsy showed died of brain haemorrhage, probably from violent shaking. Also had a number of bruises and abrasions. Evidence said injuries would have required considerable force.	Yes, although some injuries appeared to have been around 1 week old.	Ongoing mental health issues. Prior to offending, relationship issues and resentment towards family. Psychiatric report - personality dysfunction and adjustment disorder, rather than a major depressive illness. Some symptoms of PTSD (due to arrest and earlier motorbike accident). Admitted to psychiatric hospital on 3 occasions, post-offending.	Convicted after jury trial.	Limited remorse.		7 ½ years. 6 months credit for previous good character and reputation, further 6 months for mental health issues and limited remorse. End sentence 6 ½ years imprisonment.	-	-
R v Tahuri[22] (High Court)	Grandmother lost temper with grandson and in fit of anger hit 3 year old granddaughter with sufficient force to lead to brain and retina haemorrhage. Victim collapsed into coma and died two days later when life support turned off.	Angry loss of control, but having had a propensity to strike children in her care. Not a case of long-running cruelty. Evidence that she had struck the child on the head 5 days earlier.	Dysfunctional upbringing marked by violence and little emotional support. Some personality, emotional and intellectual difficulties which contributed to an inability to handle stress. Do not comprise “psychiatric compromise”.	Initially charged with murder. Crown amended indictment during trial. Pleaded guilty to manslaughter. Had not offered to plead to manslaughter.	Had previously denied offending and not wanted to talk to probation officer. Judge found that denial and comments to probation officer arose out of “stupidity and emotional responses”. Advised through counsel that accept guilt.		7 ½ years. 22 ½ percent discount for guilty plea and personal mitigating factors. 5 years and 9 months imprisonment end sentence.	-	-
R v Graham[23]	Appellant left to care for his 11 month old daughter. Bruises to faces, head and body and haemorrhages in both eyes. Cause of death blow to head or violent shaking.	No. Multiple episodes of violence in weeks preceding death. Offers of assistance had not been taken up because of lack of interpersonal skills with strangers.	Evidence from psychiatrist that suffered from “intermittent explosive disorder”, which had been exacerbated by recent traumatic events (death of friend in car accident and suicide of brother).	Charged with murder. Found guilty of manslaughter.	Trial Judge gave credit for remorse.	Psychologist report that condition would respond to treatment and Court should have regard to treatment and rehabilitation in sentencing process.	7 years.	By deduction starting point must have been around 7 years.	5 years imprisonment.

WOODCOCK: case analysis – manslaughter of children[24]
Case	Facts	One-off?	Mental illness?	Plea	Remorse?	Rehabilitation	First instance decision	Appeal starting Point	End Point
R v Greaves[25]	Appellant smothered partner’s 10 month old baby while in his sole charge. Repeated 3 or 4 times within short period. Unsuccessfully attempted to revive.	Yes. Appeared to be.	No.	Early guilty plea.	Remorse expressed from the outset.	Insight into behaviour and intention to change behaviour.		By deduction starting point must have been around 7 years.	5 years imprisonment.
R v Iorangi[26]	Father lost temper with 17 month old son and hit son on head and shook violently when he couldn’t stop him crying. Threw 3 metres across room. Died from severe head and internal injuries.	Yes. Essentially a case of one-off loss of control. Evidence of two previous assaults but not treated as significantly aggravating. Spontaneous and momentary loss of temper.	No.	Charged with murder. Found guilty of manslaughter, which he had been willing to plead to.	High level of remorse. Accepted responsibility at an early stage.	Assessed as having extremely low level of risk of re-offending and high motivation to change.	4 years.	Starting point approved by CA must have been in vicinity of 6 to 7 years.	4 ½ years imprisonment.
R v Pene[27]	Foster mother hit 13 month hard on head 3 or 4 times and shook angrily because he was crying. Assaults caused spinal cord concussion which compromised breathing and caused brain damage/death.	No. Earlier injuries – abrasions and bruising, historical fracture. She admitted hitting him on earlier occasions.	Depressed and stressed in period leading up to death, but not post-natal depression or psychiatric disorder.	Not guilty to manslaughter and representative charge of assaults.	Yes.		1 year home detention, 100 hours community work.	5 to 7 years, but 5 years as SG appeal.	2 years, 3 months imprisonment for manslaughter (concurrent 1 month for assault).

WOODCOCK: case analysis – manslaughter of children[28]
Case	Facts	One-off?	Mental illness?	Plea	Remorse?	Rehabilitation	First instance decision	Appeal starting Point	End Point
R v Gordon[29]	Mother killed 9 week old baby by shaking causing fatal brain injuries.	No. Had shaken baby on one other occasion, causing haemorrhaging in brain. Shook him again a few weeks later, causing fatal brain injuries. The appellant had told the nurses and others of her concern that she had thoughts of harming Brodie, and had therefore sought professional help. However she noted that, having received that help and been prescribed medication, she had not taken it.	Post-natal depression. Had been admitted to psychiatric ward prior to offending. Hospital notes - low mood, suicidal thoughts, unable to cope with duties of wife and mother. If psychiatric evidence about infanticide (available at appeal hearing) had been given at trial, it should have been put to the jury.	Convicted after jury trial.	No. Continued denial.				2 years imprisonment. NB Court in Pene said at [7]: “One cannot help feeling infanticide’s maximum sentence of 3 years’ imprisonment may have influenced the merciful sentence fixed by this Court”.

Note – R v Witika[30] – more serious – intentional burning under hot water, beatings, leaving her alone for last few days of life.

Note also R v Taueki[31] - Wylie J said aggravating features identified in Taueki are present – serious injury, attacking head, vulnerability of victim – fatal assault would fall into Band 3 – justifying starting point of 9 to 14 years. Assault to ribs would fall into Band 2 and justify starting point at upper end of 5 to 10 year range.

[1] R v Woodcock HC Rotorua CRI 2008-019-000783, 30 October 2009.
[2] Introduced by Juries Amendment Act 2008, s 19(1).
[3] At [166].
[4] At [167].
[5] Juries Act 1981, 29C(2)(9).
[6] R v Papadopoulus [1979] 1 NZLR 621 (CA).
[7] Section 29C (2)(c)(i).
[8] R v Papadopous at 626.
[9] Mahomed v R [2010] NZCA 419 at [118]- [124].
[10] R v Tipene [2001] 2 NZLR 577 (CA).
[11] R v Leuta [2002] 1 NZLR 215 at [80].
[12] In descending order by starting point.
[13] R v Tipene [2001] 2 NZLR 577 (CA).
[14] R v Waterhouse [2004] NZCA 63; (2004) 20 CRNZ 897(CA).
[15] R v Ngati HC Auckland CRI-2006-092-1919, 15 June 2007.
[16] In descending order by starting point.
[17] R v Wright [2001] 3 NZLR 22 (CA).
[18] R v Leuta [2002] 1 NZLR 215 (CA).
[19] In descending order by starting point.
[20] R v Broadhurst [2008] NZCA 454.
[21] R v Robinson HC Rotorua CRI-2007-063-002028, 27 November 2009.
[22] R v Tahuri HC Wanganui CRI-2009-083-677, 18 June 2010.
[23] R v Graham CA391/96, 27 February 1997.
[24] In descending order by starting point.
[25] R v Greaves CA68/99, 13 May 1999.
[26] R v Iorangi CA533/99, 30 March 2000.
[27] R v Pene CA265/10, 20 August 2010.
[28] In descending order by starting point.
[29] R v Gordon CA276/04, 16 December 2004.
[30] R v Witika [1993] 2 NZLR 424.
[31] R v Taueki [2005] 3 NZLR 372.

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