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Court of Appeal of New Zealand |
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Court of Appeal of New ZealandLast Updated: 29 September 2011
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CA88/2010
[2011] NZCA 479 |
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BETWEEN KAREN ALICE ROBINSON
Appellant |
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AND THE QUEEN
Respondent |
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Hearing: 12 September 2011
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Court: Randerson, MacKenzie and Asher JJ
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Counsel: M M Wilkinson-Smith for Appellant
S B Edwards for Respondent |
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Judgment: 22 September 2011 at 11.30 a.m.
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JUDGMENT OF THE COURT
A The appeal against sentence is allowed.
___________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Introduction
[1] The appellant was charged with the murder of a 14 month old child in January 2006. She was acquitted of murder but found guilty of manslaughter after trial in the High Court. She was subsequently sentenced by the trial Judge, Stevens J, to six years and six months imprisonment.[1]
[2] The appellant initially appealed against both conviction and sentence but has since formally abandoned her conviction appeal. The Crown does not oppose an extension of time to appeal the sentence. Leave for that purpose is granted accordingly.
Background facts
[3] We adopt the facts as found by Stevens J for the purpose of sentencing:
[5] ... [M] was the youngest of five children of Mr and Mrs [X]. They agreed to the children being placed in care, for what was to be a temporary placement. You and your husband had been approved as foster parents in September 2002. Between that date and November 2005 you had a number of placements from the Open Home Foundation, the last of whom was [M] and her sister [L]. You lived with your husband and five of your own children at ..., a farm property where you and your husband were involved as sharemilkers and managers.
[6] [M] and [L] came to you on 29 November 2009, having previously stayed for one night on 18 November 2009. [M] slept in a cot set up in one of the children’s bedrooms. [L] also slept there. During the day, [M] slept in a portacot set up in your own bedroom.
[7] Prior to [M] staying with you, she had been examined by her local general practitioner in Tauranga, where she received a full medical examination and check-up. No injuries of any significance were noted and she was found to be in good health. On 6 December 2005, she was again examined after complaining of a tummy bug. She was given an external examination and no injuries of any type were noted.
[8] On 4 January 2006, [M] was at your farm with her sister, your five children and yourself. Your husband had left the house to do some maintenance work in the milk shed some distance from the residential property.
[9] At about 5.10pm you telephoned the St John’s ambulance informing the officer that a 14 month old girl had banged her head when falling over and that she was non-responsive. You stated that the fall had occurred approximately five minutes earlier.
[10] The ambulance arrived at your address at approximately 5.30pm. You were outside holding [M] who was motionless. Upon examination in the ambulance, swelling and soft spots were detected on her head, her pupils were dilated and her jaw was locked preventing air access. Her coma score was three, indicating that she was very, very sick. You informed the ambulance staff that [M] had fallen from a portacot – a change from your earlier story – you heard a bang and then according to you [M] stumbled. You said [M] appeared fine for a few minutes before collapsing.
[11] At Tauranga Hospital a CT and neck scan identified a right-sided subdural haemorrhage. [M] was later transported to Starship Hospital in Auckland where she underwent neurosurgery. She showed no sign of significant brain function while at the Paediatric Care Unit at Starship. On 8 January 2006, the decision was made to remove her from the ventilator.
[12] An autopsy concluded that [M] had died as a result of a sudden acute right-sided subdural haemorrhage to the brain. There was also right retinal haemorrhaging and damage to the brain stem. As referred to in submissions, there was evidence of an earlier brain stem injury and subdural bleeding. Such injuries had occurred as recently as one week prior to the fatal injury, but could not be accurately dated.
[13] Medical investigations concluded that the injuries to [M] would have required considerable force. The nature of the injuries received, and the force required for those injuries, was not consistent with an accidental fall from a portacot. The injuries that resulted in [M’s] death were determined to be consistent with non-accidental cause indicating trauma and the likelihood that she had been violently shaken. The injuries combined to rule out the possibility of an accidental injury by falling and the jury rightly rejected the claim of a fall from a portacot.
[14] The Crown has helpfully summarised the injuries that [M] suffered as follows:
The sentencing decision
[4] After stating the facts as outlined, the Judge noted that the appellant was 38 years of age at the time of sentencing. In addition to her five children, she had worked as a foster parent, bringing 18 children through her care over a three year period. The Judge discussed a psychiatric report obtained for the purpose of sentencing which showed the appellant had suffered significant personality dysfunction and adjustment problems subsequent to the victim’s death. Amongst other things, she was admitted to psychiatric hospitals on three occasions and suffered a motorcycle accident in 2006 which resulted in the amputation of her left leg below the knee. The Judge recognised that the appellant would require support from the Regional Forensic Psychiatric Service while in prison.
[5] The Judge considered the aggravating factors in relation to the offending to be the level of violence involved; the loss of the child’s life; the distress caused to her family; the abuse of a position of trust given the victim’s vulnerability because of her tender age; and the fact that she had been placed in the appellant’s care for safekeeping. The Judge did not consider there were any mitigating factors relating to the offending but took into account the appellant’s previous good record and reputation in the community, some limited remorse and the mental health issues which she had suffered since the death of the child. He noted that the appellant continued to deny the offending.
[6] The Judge correctly observed that there is no tariff for manslaughter cases. He considered a number of authorities, taking the view that the closest case to the facts before him was R v Broadhurst.[2] The Judge accepted that the earlier brain injury to the child should be discounted and accepted that the offending was a one-off incident, albeit involving considerable violence. He took into account, to a limited extent, the appellant’s delay in seeking assistance.
[7] From a starting point of seven years and six months, the Judge deducted six months imprisonment for the appellant’s previous good character and reputation in the community and a further six months (which the Judge considered generous) for the limited remorse expressed by the appellant and her recent mental health issues.
Grounds for appeal
[8] In her written submissions advanced in support of the appeal, Mrs Wilkinson-Smith submitted that the sentence was manifestly excessive because:
(a) The Judge had not given sufficient discount for the appellant’s mental health issues;
(b) The Judge had failed to consider whether any mitigation of sentence should result from the injuries sustained by the appellant in the subsequent motorcycle accident and the difficulties this would present for the appellant while in prison; and
(c) The appellant has since accepted responsibility for the offending by abandoning her conviction appeal.
[9] In oral submissions, Mrs Wilkinson-Smith also submitted that the starting point of seven years and six months, while within range, ought to have been lower.
Starting point
[10] It is convenient to begin with the submission that the starting point should have been lower than seven years and six months. Mrs Wilkinson-Smith submitted that Broadhurst involved more serious violence than the present case. A starting point of eight years and six months imprisonment had been adopted by the sentencing judge and the ultimate sentence of seven years and six months was found to be appropriate by this Court. We agree that Broadhurst involved more serious violence. This Court accepted the trial Judge’s assessment that the two year old victim had been fatally injured by being violently shaken and slammed with great force on to a hard surface covered with padding, such as a carpeted floor. As well, this Court accepted that it was open for the judge to find that there had been prior violence visited upon the victim. The medical evidence showed that the victim had suffered a complete skull fracture “from front to back”.
[11] However, we accept the submission made by Ms Edwards on behalf of the respondent that the Judge appropriately recognised the differences in the appellant’s case by adopting a starting point of seven years and six months. The Judge concluded that the probable cause of the child’s death in the present case was that she had been violently shaken. We endorse the observations made by this Court in R v Leuta[3] that:
[77] ...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.
[12] As this Court has observed on many previous occasions, there is no tariff in manslaughter cases and it is not profitable to compare cases decided on different facts. Nevertheless, some patterns can emerge from comparable cases. The decision of this Court in Woodcock v R[4] appends a useful schedule of sentences in child manslaughter cases. This illustrates that, in comparable cases, the starting point adopted by the Judge in the present case is within the available range. Cases at the low end of the range[5] are distinguishable on the basis that the offenders were suffering from varying degrees of mental impairment at the time of the offending.
The appellant’s mental health issues
[13] As to the appellant’s mental health issues, it is necessary to refer in more detail to Dr Dean’s psychiatric report provided to the Judge for sentencing purposes. This makes it clear that since the child’s death in January 2006, the appellant has suffered from serious anxiety and stress issues resulting in her admission to psychiatric hospitals on three occasions. These admissions have each resulted from attempts by the appellant to commit suicide. The first episode occurred in April 2006, three months after the death of the child. Not long afterwards, she was admitted again to a psychiatric hospital. The last occasion was in November 2009 shortly before she was due for sentencing. On that occasion, she was detained under a compulsory in-patient treatment order.
[14] Dr Dean expressed the view that the motorcycle accident suffered by the appellant in October 2006 resulting in the amputation of her leg was related to her suicidal thinking or psychiatric problems. The view of a psychologist at that time was that the appellant was suffering from borderline personality disorder. She had a dysfunctional style of coping which was more evident when she experienced extreme levels of stress.
[15] Dr Dean noted that the appellant had struggled during her adolescence with suicidal thinking, self-harm and depressed moods. However, strong emotional support from other members of the family and her relationship with her husband had led to a “very functional life” prior to the offending.
[16] Dr Dean concluded:
Mrs Robinson has been diagnosed as having a personality dysfunction and adjustment problems, rather than a major depressive illness. It appears that her early adverse childhood experiences make her more vulnerable to stressors. Over the last four years she has experienced a series of adverse events which have resulted in her significant psychological stress. She appears to have some symptoms of post traumatic stress disorder related to the incident leading to her arrest and her motorbike accident. This has provided the environment for poor coping skills to become evident.
[17] Mrs Wilkinson-Smith also drew our attention to obvious ambivalence in the appellant’s responses to the child’s death. Material taken from her personal computer and from blogs written by the appellant show that, on the one hand, she was highly critical of the medical authorities responsible for the child after she was taken to hospital. She also criticised the Children, Young Persons and Their Families Service and the performance of her trial counsel (not Mrs Wilkinson-Smith). On the other hand, she expressed her deep love for the child and her distress and regret over the child’s death. Mrs Wilkinson-Smith submitted that the marked variation in the appellant’s responses demonstrated her inability to cope with what had occurred and was attributable to her highly distressed mental state after the child’s death.
[18] For the Crown, Ms Edwards submitted that Dr Dean’s report showed that mental health issues did not impact upon the appellant’s culpability at the time of the offending as they did not arise until after the child’s death. Citing this Court’s decision in E v R,[6] Ms Edwards submitted that, in terms of s 9(2)(e) of the Sentencing Act 2002, a mental impairment must be causative of, or materially contribute to, the offending before it could be regarded as a mitigating factor. While accepting that the Court must, in terms of s 8(h) of the Sentencing Act take into account any particular circumstances of the offender that would mean the sentence would be disproportionately severe, Ms Edwards submitted there was no information before the Court to indicate the appellant’s mental health issues were not appropriately managed within the prison environment, nor that her current condition was such that it has increased the severity of imprisonment on her to a disproportionate extent.
The appellant’s disability
[19] Without opposition from the Crown, we received a report from Dr John Malloy dated 5 August 2011 in relation to the appellant’s management of her disability within the prison system. It is evident that the appellant continues to report pain in her left leg which is more frequent at night. She has sustained major weight loss over the 17 month period since her sentencing. This has resulted in increased pain and the need for new prostheses. At the time of Dr Malloy’s report, a new prosthesis was awaited.
[20] Despite her disability, however, the appellant is able to work in the grounds of the prison including work which involves digging. Although initially housed in the disability unit at the prison, she has now been moved to a general unit where she reports she is happier than in the disability unit. The main disadvantage is in relation to showering.
[21] Overall, Dr Malloy says that the appellant is managing her disability very well and does not require significant medical input. Pain of the type she is experiencing is common amongst amputees, but Dr Malloy is of the opinion that she has compensated well for this without medication. While she is coping with prison life and has adapted well, she could manage her disability better in the confines of her own home.
[22] Mrs Wilkinson-Smith cited cases such as R v Verschaffelt[7] and R v Harris.[8] The latter involved a prisoner who suffered from a mental condition which resulted in the amputation of one of his legs shortly before sentencing. This Court held[9] that, regardless of the ability of the prison authorities to manage the prisoner’s situation, a sentence of imprisonment would be disproportionately severe upon him.
[23] Mrs Wilkinson-Smith submitted that, even if a sentence of imprisonment could not be regarded as disproportionately severe under s 8(h) of the Sentencing Act, some allowance ought to have been made for the appellant’s disability but none had been.
[24] Relying on Dr Malloy’s report, Ms Edwards submitted that no allowance was necessary for the appellant’s disability. The authorities relied upon by the appellant involved substantially more serious medical conditions and could properly be distinguished.
Acceptance of responsibility
[25] The final factor relied upon by Mrs Wilkinson-Smith was the appellant’s acceptance of responsibility, post-sentencing, as indicated by the abandonment of her appeal against conviction. She submitted that the appellant’s inability to accept responsibility prior to sentencing should be viewed in the light of her mental state in the period following the child’s death.
[26] Mrs Wilkinson-Smith submitted that the appropriate end sentence should have been four to five years imprisonment.
Discussion
[27] We accept that the appellant’s mental health issues have largely arisen after the offending and could not properly be taken into account in mitigation under s 9(2)(e). But her mental state after the child’s death may nevertheless be taken into account as a mitigating factor as the Judge recognised.[10] The question is whether the Judge ought to have allowed a greater discount for this factor and the other matters raised on the appellant’s behalf.
[28] We consider the Judge ought to have allowed a greater discount than the combined total of twelve months. Dr Dean’s report confirms that the appellant’s mental state prior to the offending was stable and she was a fully functioning member of the community, raising her children, working on the farm and undertaking voluntary work. In marked contrast, her mental state deteriorated seriously after the child’s death. By any measure, the stress she suffered was severe, requiring several admissions to psychiatric hospitals and resulting in the loss of her leg in an accident which Dr Dean considered was related to the psychiatric problems she was experiencing at the time. Her distressed state of mind is further evidenced by her contrasting responses to the child’s death, ranging from anger towards those she considered to be at fault to heart-felt expressions of love for the child and regret over her death.
[29] We do not have before us any report as to the appellant’s current mental state. But even assuming she has stabilised since sentencing, we consider that the extent of her suffering in the period of nearly four years between the child’s death and her sentencing warranted a significantly greater discount than the Judge allowed. The level and length of her distress to date is substantially more severe than is commonly encountered in similar situations. It may properly be taken into account on the footing that it constituted a penalty in itself.
[30] While we do not regard the additional difficulties the appellant would suffer in prison as a result of the amputation of her leg to be such as to render her sentence disproportionately severe, the loss of the limb occurred as a result of the appellant’s high levels of stress and anxiety after the child’s death. It is a factor to which some weight may properly be given in assessing the appropriate sentence.
[31] We also accept Mrs Wilkinson-Smith’s submission that we ought to give some weight to a change of circumstances since sentencing. At the time of sentencing, the appellant continued to deny the offending. Understandably, the Judge could only give limited weight to the appellant’s expressions of remorse in those circumstances. However, by abandoning her appeal against conviction, the appellant has now accepted the jury’s verdict. That is an important factor since it demonstrates she has accepted responsibility for her offending – an important purpose of sentencing in terms of s 7(1)(b) of the Sentencing Act.
[32] We consider the appropriate discount for all relevant factors is two years overall. That would result in a final sentence of five years and six months imprisonment.
Result
[33] For the reasons given, the sentence of six years and six months was manifestly excessive. That sentence is quashed and a sentence of five years and six months is substituted.
Solicitors:
Crown Law Office, Wellington for Respondent
[1] R v Robinson
HC Rotorua CRI-2007-063-2028, 27 November
2009.
[2] R v
Broadhurst [2008] NZCA
454.
[3] R v
Leuta [2002] 1 NZLR 215
(CA).
[4]
Woodcock v R [2010] NZCA 489.
[5] Such as R v
Pene [2010] NZCA 387; R v Gordon CA276/04, 16 November 2004; and E
v R [2011] NZCA
13.
[6] E v R
[2011] NZCA 13 at
[68].
[7] R v
Verschaffelt [2002] 3 NZLR 772
(CA).
[8] R v
Harris [2009] NZCA
471.
[9] At
[22].
[10] Section 9(4)(a) of the Sentencing Act 2002 provides that nothing in subs (1) and (2) prevents the Court from taking into account any other mitigating factor.
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