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Court of Appeal of New Zealand |
Last Updated: 6 November 2013
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IN THE COURT OF APPEAL OF NEW ZEALAND
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Respondent |
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JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooper J)
[1] Following his trial before Venning J and a jury, the appellant, Kefu Ikamanu, was acquitted of the murder of his daughter, Seini Ikamanu. He was, however, convicted of her manslaughter and also convicted of causing her grievous bodily harm with intent to do so.
[2] On sentencing Venning J adopted a starting point of eight years’ imprisonment for the manslaughter, taking it as the lead offence.[1] He applied an uplift of one year and six months to reflect the conviction for causing grievous bodily harm to ensure that the sentence imposed on the manslaughter reflected the gravity of the overall offending.
[3] After making allowances for Mr Ikamanu’s early acknowledgement that he had caused the fatal injuries, remorse and an early offer to plead guilty to manslaughter, the Judge arrived at a final effective sentence of six years and nine months’ imprisonment. He imposed a sentence of one year and six months’ imprisonment for the grievous bodily harm count and directed that the sentences be served concurrently. The Judge declined to impose a minimum term of imprisonment.
[4] Mr Ikamanu now appeals against his conviction, but only in relation to the grievous bodily harm count. If that appeal is successful, he seeks that the sentence be reduced by one year and six months, thereby removing the uplift imposed for the grievous bodily harm offence.
[5] The Solicitor-General also seeks leave to appeal against the sentence, alleging that it was manifestly inadequate. Counsel contends that given all the circumstances of the offending, the starting point of eight years’ imprisonment which Venning J adopted for the manslaughter was too low and the discounts allowed for personal mitigating features were too generous. Ms Edwards submitted that a sentence of nine years’ imprisonment was the minimum required to adequately reflect the gravity of the offending and Mr Ikamanu’s culpability.
[6] The Solicitor-General further contends that there should have been a minimum period of imprisonment of four and a half years.
[7] Seini was born in New Zealand in April 2007. However, when she was five months old she was taken to live in Tonga with her extended family. Mr Ikamanu and Seini’s mother, Sela, remained in New Zealand.
[8] On 29 January 2010 Seini returned to New Zealand to live with her parents. Mr Ikamanu was the primary caregiver for both Seini and a brother aged 18 months. Sela worked extended hours at a home for the disabled.
[9] On 24 March 2010 Sela left to go to work before 3.00 pm leaving Mr Ikamanu with the children. After several hours the appellant was watching television whilst the children played. In his police interview he said that he had been watching television and asked them to stop playing noisily with a ball. Mr Ikamanu told the police that Seini had ignored his request and continued to run around. He then reached out from his chair, took hold of Seini’s arm, pulled her towards him and swung her across in front of him before letting go. He stated the force that he used was so great that she had “come off from” his hand.[2] She was propelled into the wall with significant force.
[10] At sentencing Venning J recorded that as a result of this incident Seini suffered serious head injuries, as well as a fracture to her right shoulder. He also noted, consistently with the verdict of the jury, that:[3]
As part of the incident and while still angry with her you went across to where she was lying on her back on the floor and stamped on her pelvic area. That caused the pelvic fractures.
[11] Seini then began having seizures. Not knowing what to do, Mr Ikamanu carried Seini to the sink, undressed her and put water on her head. In his police interview he recorded observing that her hands and feet were stiff and her mouth was “hard”.[4] He put a fork into her mouth to try to prise it open, but she bit down on that and broke a tooth. He tried to unclench her feet and hands without success and then took her to the bathroom and showered her.[5] As she continued to have seizures he tried to resuscitate her and at one stage shouted “help, help” in English. However, no one apparently heard him and it was at that point that he called his wife.[6] It was now 7.00 pm. Sela was not able to leave work immediately, but after arranging cover she returned home. Once there she called an ambulance.
[12] At the hospital the appellant did not immediately tell the medical staff what had happened. Dr Kelly questioned him on the day after her admission and the appellant responded that the seizures were something that had begun spontaneously. Mr Ikamanu’s admission that he had caused Seini to be propelled into the wall was not made until his police interview on 26 March. In a subsequent interview, Mr Ikamanu denied causing other injuries, including the pelvic injuries.
[13] When Seini was admitted to hospital she had sustained injuries other than the head injuries and the pelvic injuries. Venning J dealt with those at sentencing when he referred to the fact that at the trial the Crown had alleged that there had been previous assaults leading up to the incident of 24 March. He rejected that contention stating at [11]:
Having heard the evidence I am satisfied that the injuries Seini sustained on the Monday and Tuesday were as a result of accidents and were not part of any sustained abuse of her by you. The incident on 24 March which led to her death was a one-off incident caused by your frustration at that time, which you almost immediately regretted after causing the injuries to her and in your own way, tried to do something about them.
[14] The conviction appeal is advanced on the basis that the guilty verdict was unreasonable and/or unsupported by the evidence.
[15] Mr Lance submitted that the crucial issues were how Seini’s pelvic fractures could have been caused, and the age of those injuries. The defence case at trial was that the pelvic injuries were caused by an incident in Tonga that occurred prior to Seini’s return to New Zealand, and were not the result of anything that happened on 24 March 2010. The defence had two principal bases:
- (a) Evidence given by Manusiu Tauheluhelu, who was Mr Ikamanu’s step-sister. She described an incident which had occurred in Tonga when she was playing basketball with two of her cousins. She failed to notice that Seini had been running towards her and she had jumped for a ball and fallen on top of Seini. When she stood up, she noted that Seini was crying and carried her over to her grandmother who had arrived at the scene.
- (b) Evidence from a paediatric radiologist called by the defence, Dr Susan Craw. Dr Craw’s evidence was that Seini’s pelvic injuries were likely to have been the result of pressure from a “front to back force”, and that any severe weight compressing the pelvis could have caused the injury. Further, it was her opinion that the injuries had been sustained at least 10 days before a CT scan had been carried out on 1 April 2010. In her view, because of the amount of new bone formation she had observed in the CT images, she considered that the fractures were “at least some weeks old but they could be older and I couldn’t give an upper limit”.
[16] There was a conflict between the evidence of Dr Craw and a paediatric radiologist called by the Crown, Dr Russell Metcalfe. Initially, Dr Metcalfe had produced a report dated 4 June 2010 in which he stated, amongst other things, that “the fractures are in the order of weeks not days old”, and “in general regarding fractures the earliest that periosteal new bone is identified is in the order of two weeks. Periosteal bone here is older than this”. The conclusion expressed in his report was:
I would date the fractures between 3 and 10 weeks, but more likely to be towards the lower limit of this range. They are potentially all the same age.
[17] Once again, the CT scans on which Dr Metcalfe based his opinion were those made on 1 April 2010.
[18] However, Dr Metcalfe changed his mind, and in a second report, dated 2 May 2012 he expressed the opinion that the pelvic fractures were “likely to be recent” and he was no longer sure if there was “periosteal new bone present”. In this second report, he expressed the opinion that the pelvic fractures were between seven and 21 days old.
[19] At the trial, during his examination-in-chief there was the following exchange between the prosecutor, Mr Hamlin, and Dr Metcalfe:
- So having reviewed and looked at the CT scan as you’ve described how would you date or age the pelvic fractures?
- So I changed my mind from thinking there was signs of healing to I don’t think there are any signs of healing so these are recent. So at the time of the CT it would be seven, conceivably seven to 10 days age or, or even younger, you know, there’s no sign of periosteal new bone so it’s within 10 days probably, on the 1st of April. But from the history that subsequently obtained, you know, this child was running around right up to the night of the injury so I would assume that this occurred on the night of presentation to hospital with the head injury.
[20] In cross-examination there were these questions and answers:
- And so you have a second look at the CT this time and again you note in relation to the pelvis that there are bilateral symmetric healing fractures of the superior [pubic] rami, pubic body and ossified inferior [pubic] ram –
- Rami.
- Rami?
- Yeah, but I – often times what you do is like I had pre-formed opinion from the plane films that I thought there was periosteal new bone so when I looked at the CT there were just multiple fractures everywhere and from a quick look, I mean, yeah, a quick look, I thought there was periosteal new bone there so I just – and it didn’t really make a big difference at the time so I just put out the report and so that’s what – that explains the original report and then when it became clear that that perhaps the story didn’t quite fit my findings then I had another very good look at it –
...
[21] Questioned by the Judge, Dr Metcalfe expressed his disagreement with Dr Craw and said that he thought that the fractures were “fairly recent”, they were “absolutely less than a month old” and “certainly not three”. The last observation was clearly a reference to the defence theory that the injury was sustained when Ms Tauheluhelu fell on Seini at the basketball game.
[22] There was some uncertainty in the evidence about the date on which the basketball game incident occurred. In her evidence-in-chief Ms Tauheluhelu appeared to link it to an occasion when Seini had been taken to the hospital in Tonga after complaining about a sore leg. However, she accepted in cross-examination that that event had occurred in October 2009 and then said that there was a separate incident in which she had fallen on Seini on the basketball court just after Christmas in December 2009. Re-examined by Mr Hamlin for the Crown she said that it was one week before Christmas Day. The date had also been referred to in a witness statement of Seini Ikamanu, the appellant’s mother. Mrs Seini Ikamanu was present just after the basketball incident and she said that it happened “about the third week of December, close to Christmas”. Her witness statement was read at the trial by consent and the jury is likely to have accepted her evidence.
[23] However, the Crown’s case was not based solely on the evidence of Dr Metcalfe. It also relied on evidence given by Dr Patrick Kelly, a Fellow of the Royal Australasian College of Physicians, who specialises in paediatrics. In his evidence-in-chief he described Seini’s pelvic injury as very severe. He said that the most likely mechanism by which it had occurred was that someone had stomped on the pelvis from the front, while she was lying on her back. At the time the fractures happened, “if she were conscious she would be in agony”. The fractures would have been “exceedingly painful”, and would have had the consequence that Seini would have been unable to walk. In the only two other examples which he had seen of a similar pelvic fracture, the children had remained bed-bound for several weeks. Seini would not have been able to walk “for a week or two at least”.
[24] Dr Kelly was asked about Dr Metcalfe’s opinion and how he would date the fractures as a paediatrician. He then said:
Well the advantage I think that a clinician has over a radiologist is that it’s our job to take the radiology like any other investigation, whether it be blood tests or x-rays or whatever and put it into the clinical picture and try to make sense of it and what x-rays generally do is they give you a frame of reference, they give you a fairly broad kind of timeline within which the fracture might have occurred but they can never tell you exactly how many hours old it is or indeed usually they can never tell you exactly how many days old it is. By far the best guide to precise timing is the symptoms that a child shows because of course at the moment that a bone is broken it will hurt and even in a preverbal child, particularly with fractures as severe as this, the symptoms will be obvious to anybody who has anything to do with that child. So when Seini’s pelvis was fractured, she would’ve been in agony and she would’ve been unable to walk and she would’ve been unable to walk, in my opinion, for at least a week. So when the radiologists first gave the opinion that they thought these were healing fractures, the thing that was always a problem when making sense of that, well when was there ever a time that Seini had a history of being in great pain and being unable to walk for a week? So when Dr Metcalfe, when he was reviewing the x-rays actually changed his opinion, that actually to me made much more sense because if these injuries were caused on the day, for example, that Seini was admitted to hospital, you would expect her to no, so, no symptoms because she was unconscious and there would need to be no history of her not walking because the injury actually happened on the day that she was admitted and in addition it explained the bruising in her right groin particularly and it explained the bruising on her back. So putting all that together, the symptoms, the pain, the bruising, the nature of the fracture itself, I think it’s by far the most likely explanation that it actually happened on the day that she was admitted to hospital.
[25] In cross-examination, Dr Kelly accepted that his opinion about the pelvic injury was dependent on Dr Metcalfe’s changed opinion, stating that pelvic fractures are so rare that he “wouldn’t presume to try to date them on [his] own experience”. He was also asked in cross-examination about the possibility that the injuries had been caused in the basketball game, counsel referring to evidence that the basketball game had to be stopped because Seini was crying and in pain, had to be carried home, was still crying the next morning and remained in pain for a few days. Dr Kelly responded to this line of questioning by stating:
...the key issue of the history in Tonga for me was not about an adult falling on Seini, because clearly I think if an adult did fall on Seini, particularly if she were on a hard surface, it’s certainly possible they could fracture her pelvis. The issue would be that if her pelvis had been fractured she wouldn’t be walking and she wouldn’t be walking for at least a week in my view.
[26] Dr Craw conceded that until a few weeks before the trial she would have thought it unlikely the fractures she observed in Seini’s scans were sustained in late December 2009. However, she had more recently examined the records of every child admitted to Dunedin Hospital with a pelvic fracture in the last five years (and one example dating from 20 years ago). The x-rays showed that the fractures were not healed and still clearly visible two months after the injuries. This caused her to disagree with evidence given by Dr Metcalfe that after three months such fractures would be totally healed.
[27] In summing up Venning J noted that the evidence as to when the injury occurred was largely that of the radiologists, Drs Metcalfe and Craw. Further, he reminded them that Dr Kelly accepted that he would defer to Dr Metcalfe on the ageing of the fractures. He observed that Dr Metcalfe had first stated his opinion that the fractures were three to 10 weeks old from when the CT scans were taken, which meant that they occurred two to nine weeks prior to 24 March. However, he had changed his opinion after learning that Seini had been running round on 24 March, and said that the fractures could not have been older that seven weeks. He continued:
Dr Metcalfe explained the change of his evidence on the basis that he initially had a pre-formed opinion from the x-rays and from a quick look at the CT scans so in his words, he just put out the report for Court but when it became clear that perhaps the story didn’t fit he had another look at it. I have to say that as a Judge who relies on statements presented to the Court, I find that approach from a professional surprising. On the other hand, Dr Craw while accepting it was not easy to accurately age a fracture was firmly of the opinion that the pelvic fractures were 9 or 10 days old at least and that it was impossible to give an outer limit.... The upshot of Dr Craw’s evidence is that the pelvic fractures could not have been caused on 24 March, and could have been caused as long ago as December 2009, which would have fit the basketball explanation.
[28] The Judge also directed the jury that in deciding whether to accept the evidence of Dr Craw or Dr Metcalfe they could take into account the fact that Dr Metcalfe had changed his opinion, not initially on the basis of a review of the slides but rather on the basis of what he had learnt about the background circumstances before reviewing the slides. He reminded the jury of evidence given by Dr Craw about the importance of an expert radiologist objectively forming an opinion on the basis of the x-rays and CT scans themselves.
[29] The Judge then directed the jury along orthodox lines that if they accepted Dr Craw’s evidence the proper verdict would be not guilty because on her evidence the pelvis could not have been broken on 24 March; that if her evidence left them unsure about the date of the injury then the proper verdict would again be not guilty; and that if they accepted Dr Metcalfe’s evidence they would need to consider all of the evidence about the broken pelvis before concluding that the injuries were the result of the accused stomping on her pelvis. It would be necessary at that point for them to consider an alternative possibility raised by the defence that the injury could have been caused by the accused carrying Seini to the bathroom, and slipping and falling against the bath.[7]
[30] Mr Lance submitted that there was no scientific evidence for the Crown’s stomping theory, which he claimed was essentially speculation. He argued that Dr Kelly had no expertise in ageing fractures, and Dr Kelly had accepted that his theory was dependent on the evidence of Dr Metcalfe. Dr Metcalfe however had altered his opinion on three occasions, changing his original view because his original findings did not fit with the Crown case. This meant that Dr Metcalfe was neither a credible nor a reliable witness, and the Judge’s summing-up had drawn attention to the weakness of the evidence. By contrast, Dr Craw had provided objective expert opinion.
[31] To the extent that Dr Kelly’s evidence relied on bruising to Seini’s back and groin area there were explanations for the bruising that meant it could not be relied upon to support the stomping theory.
[32] Further, the jury verdict was not consistent with other evidence which showed that Mr Ikamanu was a loving and caring father to Seini, who had attempted to help her immediately after her head hit the wall. Overall, the Crown’s evidence fell well short of proof beyond reasonable doubt and the conviction must have been based on impermissible speculation about what had really happened.
[33] For the Crown, Ms Edwards submitted that on the evidence there were only two possible explanations for the pelvic injuries: they were either sustained on the same night that Seini was fatally injured or they were the result of the basketball accident that had occurred about three months earlier in Tonga. There was clearly a dispute between Drs Metcalfe and Craw about the age of the fractures. The former had been clear in his evidence to the Court that the fractures could not be three months old. While Dr Craw thought that they were at least 10 days old, she was not prepared to give an upper limit. However, the jury also heard evidence from Dr Kelly, including (in the passage quoted in [24] above) evidence that the best guide to the timing of the injuries was the symptoms shown by the child. The basketball incident had not resulted in significant pain and immobilisation of the kind that would have been the result of the pelvic fracture when it occurred.
[34] Ms Edwards noted that Dr Kelly had observed a three centimetre long linear purple bruise parallel to Seini’s right groin. He said he had not seen a linear bruise in that location in 20 years of practice. He thought the best explanation of that bruise was that it was blood seeping out to the surface from the fractured pubic bone. This meant that the fracture was new. The combination of contextual factors led him to the view that the most likely explanation was that the pelvic fracture was the result of an incident on the day of Seini’s admission to hospital.
[35] Ms Edwards noted that the appellant took no issue with the Judge’s directions in relation to the expert medical evidence regarding the pelvic injuries, which were comprehensive, and in so far as the conflict between the radiologists was concerned, favoured the defence. However, in the context of the overall evidence before them, the jury was entitled to reject Dr Craw’s evidence and the defence that the injuries had occurred in Tonga in late December. There was sufficient evidence on which they could conclude beyond reasonable doubt that the appellant had deliberately inflicted the pelvic injuries by stomping on Seini’s pelvis as she lay on the ground.
[36] Section 385(1)(a) of the Crimes Act provides that the Court of Appeal (or the Supreme Court) must allow an appeal against conviction if of the opinion that:
... the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; ...
[37] In R v Owen the Supreme Court said:[8]
[12] It is now appropriate to recognise that the “cannot be supported” limb of s 385(1)(a) has no practical significance. An “unsupported” verdict must necessarily be an unreasonable verdict. An unreasonable verdict has insufficient evidence to support it. A verdict with no evidence to support it is simply at the outer end of a continuum. Henceforth it will suffice simply to apply the unreasonableness limb.
[38] The Supreme Court also referred to this Court’s decision in R v Munro.[9] It specifically endorsed the following aspects of the decision in Munro:[10]
(a) The appellate Court is performing a review function, not one of substituting its own view of the evidence.
(b) Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate Court. Assessment of the honesty and reliability of the witnesses is a classic example.
(c) The weight to be given to individual pieces of evidence is essentially a jury function.
(d) Reasonable minds may disagree on matters of fact.
(e) Under our judicial system the body charged with finding the facts is the jury. Appellate Courts should not lightly interfere in this area.
(f) An appellant who invokes s 385(1)(a) must recognise that the appellate Court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.
[39] In addition, the Supreme Court observed:[11]
The question is whether the verdict is unreasonable. That is the question the Court of Appeal must answer. The only necessary elaboration is that expressed earlier, namely that a verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty. We do not consider it helpful to employ other language such as unsafe, unsatisfactory or dangerous to convict. These words express the consequence of the verdict being unreasonable. They should not be used as tests in themselves.
[40] In this case the crucial evidence from the defence’s point of view was that of Dr Craw. Her evidence, when combined with that of Ms Tauheluhelu and the statement of Mrs Seina Ikamanu meant that there was a credible narrative that Seini’s pelvic injuries were sustained in the basketball accident in the third week of December 2009. Dr Metcalfe expressed a different opinion, but given the way in which his view changed over the course of his involvement in the matter, the jury must inevitably have given it less weight than that of Dr Craw, considered on its own.
[41] However, that does not mean that their decision to find Mr Ikamanu guilty was unreasonable. We say that mainly because of the evidence of Dr Kelly, who was well qualified to give evidence on the principal issue on which his opinion was based, namely the pain and immobility that would have attended the occurrence of such a serious pelvic injury. The jury would inevitably have found that evidence persuasive in the context of:
- (a) The statement made by Mrs Seini Ikamanu, read to them by consent. She had had the care of Seini in Tonga from when she was five months old. She described her as an active child, but quiet. She said that if someone needed a doctor they would go to the hospital and see whoever was there on the day. Seini was taken to the hospital on this basis about 15 times. She took her to hospital “whenever she had a fever or itch”. Mrs Ikamanu described arriving at the scene of the basketball game to find her granddaughter crying. Her daughter, Mrs Tauheluhelu, told her what had happened. Mrs Ikamanu did not take her to hospital after the basketball incident, she just treated her by applying warm water and oil. Seini said she was “ok” and “[s]he was still running and playing with the kids.”
- (b) The evidence of Mrs Tauheluhelu. She described the accident, but was clearly confused about the timing and was wrong about Seini going to hospital after it occurred. However, she said that when Sela arrived in Tonga (this was shortly after the accident in December 2009) there was nothing wrong with Seini, that she was walking and running “all right”, in fact she had been “okay right through as far as I can remember, running, walking, was okay”.
- (c) The evidence of Sela Ikamanu. Although she referred to an occasion when she thought that Seini had been “walking like a pregnant lady”, she initially said this was a little time after their return from Tonga. She had been quiet and spent “time just sitting on the couch”. However, in Tonga, Seini had “seemed normal” to her. Later, she said that the “pregnant lady” walk had also taken place in Tonga. She then said Seini had a slight limp both in Tonga and New Zealand. But this was for a short time and she soon got better.
[42] This evidence from those in close contact with Seini and involved in her care in Tonga both before and after the basketball accident clearly described nothing like the consequences in terms of pain and immobility that in Dr Kelly’s opinion would have been caused by the pelvic injuries at the time they occurred. There was no evidence to suggest that they could have been sustained at any other time prior to 24 March. We consider in these circumstances that the jury could reasonably have concluded that Seini’s injuries occurred on that day. And they must then have occurred after she was propelled into the wall, because immediately before the incident in which Mr Ikamanu reached out to grab her she had been running around boisterously playing with her brother.
[43] While we accept, as Mr Lance submitted, and as Venning J instructed the jury, that Dr Kelly deferred to Dr Metcalfe as to the dating of the pelvic injuries, we consider the jury could reasonably have taken that concession as related to dating the injuries from the x-rays and CT scans. In any event, they would have been entitled also to take into account the other evidence Dr Kelly gave. In particular he referred to the clinician’s advantage, as he put it, of putting the x-rays into the clinical picture, and expressed the opinion that the best guide to precise timing is the symptoms displayed. On the basis of his explanation for that opinion, quoted at [24] above, it would not have been unreasonable for the jury to find significant the absence of any evidence that had Seini had suffered as Dr Kelly said she would have if her pelvis had been fractured in Tonga. This was essentially a factual issue for the jury to determine.
[44] We accept that the defence raised valid issues concerning the bruising on which Dr Kelly relied, in part, for his conclusion that the pelvic injury occurred on 24 March. They included the fact, admitted pursuant to s 9(2) of the Evidence Act 2006, that there was bruising on Seini’s back prior to 24 March. Further, insofar as the linear purple bruise parallel to Seini’s right groin was concerned, the jury could have concluded on the evidence that it might have been the result of procedures that took place after Seini’s admission to hospital.
[45] However, they were not compelled by the evidence to reach that view and even if they were satisfied that the bruising was not associated with the pelvic injury, they could still have concluded beyond reasonable doubt that Mr Ikamanu was guilty on the basis that there was no other occasion when the pelvic fractures could have occurred.
[46] The factual issues that the jury needed to decide were thoroughly canvassed by Venning J in his summing-up. As Ms Edwards said, the summing-up was favourable to the defence, in particular in relation to the conflict between the evidence of Drs Metcalfe and Craw. However, as the Judge also reminded the jury, it was their task to consider the evidence of the experts in the context of all the evidence, and then decide what weight or importance to give their opinions. We are satisfied that taking that approach, the jury could reasonably have concluded that Mr Ikamanu was guilty.
[47] This means that the conviction appeal must fail.
[48] Dismissal of the conviction appeal means that Mr Ikamanu’s sentence appeal, predicated on the success of the conviction appeal, must also fail.
[49] We turn next to consider the Solicitor-General’s sentence appeal.
[50] Ms Edwards submitted that given the overall level of violence involved in Mr Ikamanu’s offending, the starting point of eight years adopted by Venning J for the manslaughter was too low. She argued that the extent of the head and shoulder injuries Seini sustained indicated the use of significant force. Taken together with the extensive pelvic fractures, which were the result of the stomping when Seini was prone on the floor, this was serious violent offending.
[51] Ms Edwards was critical of the Judge’s finding that the offending represented a one-off loss of self-control, arguing that the stomping showed this was more than a momentary loss of control in response to her misbehaviour.
[52] Ms Edwards argued that the circumstances of this case were similar to those that came before this Court in R v Donnelly[12] and she relied also on R v Leuta[13] and R v Waterhouse.[14] She submitted that, in common with each of those cases, the offending here was stand-alone and had occurred without a history of prior abuse. The violence could be characterised as an extreme overreaction to perceived misbehaviour by a child and there was a failure to obtain immediate medical assistance. In each case the sentence imposed was greater than that imposed on Mr Ikamanu.
[53] In Donnelly, Mr Donnelly had become angry with his partner’s three year old daughter as a result of misbehaviour. He picked her up by he ankles and swung her around, causing her to hit her head more than once on a solid object or objects with considerable force. The accused in that case also alleged that the child had come out of his hands. The sentencing Judge adopted a starting point of nine years. The Court of Appeal considered that a starting point of 10 years could have been adopted, but was not prepared to intervene on a Solicitor-General appeal.[15] The end sentence of seven years’ imprisonment was not disturbed.
[54] In R v Leuta, Mrs Leuta had pleaded guilty to manslaughter. She was the mother of five children, of whom the deceased was the third. He was five years old when Mrs Leuta, angry that he would not eat his evening meal, assaulted him initially with an old car aerial and subsequently with part of a broken car fan belt. The Court characterised the attack as “deliberate, prolonged and brutal”, and said that in the absence of mitigating factors a sentence of 10 years would have been “entirely appropriate”.[16] In that case, the sentencing Judge had arrived at a sentence of seven to eight years before adjustment for mitigating factors. The Court of Appeal described the final sentence of six years’ imprisonment as too low for a serious case which had concerning aspects of “deliberation, prolonged violence and failure to provide care”.[17] It considered the sentencing Judge would have been justified in imposing a sentence of eight years’ imprisonment. However, since it was a Crown appeal, in accordance with normal practice, it increased the sentence by the minimum necessary to overcome the inadequacy. A sentence of seven years’ imprisonment was substituted.
[55] In R v Waterhouse the appellant was charged with murdering a boy aged three years and 10 months living in his home pursuant to a foster care arrangement. He was convicted of manslaughter. The incident began when the appellant asked the child where popcorn in his lunchbox had come from and the boy would not tell him. He took hold of the boy’s arm and pulled him across a lounge chair so that his back was resting on the arm of the chair leaving his stomach in an exposed position. He then punched him four times in the stomach causing the child to make a groaning sound and the veins on his neck to bulge out. Fearing that he had seriously injured him he endeavoured to give him a shower and put him to bed. Later he took him to the toilet because he needed to vomit. The child subsequently lapsed into unconsciousness. The appellant told his wife to telephone an ambulance, but upon its arrival the boy was dead. The sentencing Judge adopted a starting point of 12 years’ imprisonment, deducting two years for good character and remorse, as well as his willingness to plead guilty to manslaughter. The final sentence imposed was 10 years’ imprisonment.
[56] This Court considered that the offending was of similar gravity to that which was before the Court in Leuta.[18] It observed:[19]
... respecting that the sentence was imposed by the trial Judge who was in the best position to assess overall culpability and giving weight to the observations in para 84 of the majority judgment in Leuta, we are not prepared to say that a starting-point above 10 years was beyond the available range. But we cannot see the justification for a 2 year increase in the starting-point. In our view 11 years imprisonment was as much as could be justified.
[57] Ms Edwards submitted that in the present case a starting point of 10 to 11 years would also have been justified on the alternative analysis that could have been carried out applying R v Taueki.[20] She referred to the aggravating features of vulnerability, attendant breach of trust, head injuries and resulting death. A starting point of 10 years, with an uplift for the grievous bodily harm count ought to have resulted in a sentence of 11 and a half years’ imprisonment before mitigating factors were taken into account.
[58] We consider that in the present case a higher starting point than the eight years adopted by the Judge would have been justified. However, we accept that, as the trial judge, Venning J was best placed to judge the overall gravity of the offending. He concluded that the fatal attack and the subsequent stomping to the pelvis were part of a “one-off incident of violence towards Seini that arose out of ... frustration at her misbehaviour on the evening of 24 March”.[21] We do not feel able on appeal to disagree with these conclusions.
[59] Venning J specifically referred to R v Donnelly as well as sentences imposed in the High Court in similar cases.[22] He expressed the view that the present facts did not disclose the same element of “calculated harm” as in Donnelly where the prisoner picked the child up and swung the child around by the ankles. That action had itself been preceded by several assaults (in which the child was slapped on the face on two separate occasions, and grabbed by the arm) and there was a failure to seek medical attention for the child. Here, the Judge accepted that Mr Ikamanu had responded in the best way he could by ringing his wife for help.
[60] There are differences between the facts of Donnelly and this case. In Donnelly the assault that caused the fatal injuries was of similar gravity, but there was not the additional violence represented by the stomping incident here. The starting point of nine years six months adopted by Venning J took account of that difference and while a higher starting point could have been justified the one adopted was within the range open to him.
[61] Once the Judge’s characterisation of the events as a one-off incident involving loss of control is accepted, we doubt that the case would fall within band 3 of Taueki. The result of Mr Ikamanu’s actions was, of course, serious injury including injury to the head which ultimately proved fatal. What occurred would not appropriately be described, however, as an attack to the head. This was nevertheless a case of serious violence directed against a young and vulnerable child and consequently we consider it would fall in the upper range of band 2. That, of course, is a band which encompasses sentences of between five and 10 years and approaching the sentencing in this way we also reach the conclusion that the starting point adopted was a lenient one.
[62] Ms Edwards also argued that the discounts allowed for mitigating factors were overly generous.
[63] In assessing the appropriate degree of discount for mitigating circumstances, Venning J noted that there had been an early acknowledgement by Mr Ikamanu of the conduct that caused the fatal injuries. He accepted that conduct showed him to be remorseful and motivated to change.[23] He also noted that the offer to plead guilty to manslaughter had been made at an early stage, and confirmed in writing. He was satisfied that the grievous bodily harm charge could also have been resolved if the Crown had been prepared to accept manslaughter on the principal charge. The Judge concluded that a reduction in the region of “20 percent” was appropriate in relation to the latter charge. Although clearly referring to the manslaughter charge at this point in the sentence, the reduction given was calculated on the basis of the overall starting point adopted to reflect both charges. Thus, from the overall starting point of nine years and six months’ imprisonment there was a deduction of one year for the acknowledgement of guilt and remorse, and a further 20 percent reduction on top of that. This resulted in the final sentence of six years and nine months’ imprisonment.
[64] While Ms Edwards acknowledged that Mr Ikamanu offered to plead guilty to manslaughter before trial, she noted that he had continued to deny responsibility for the pelvic injuries. Further, at the trial, he had argued for a full acquittal on both counts claiming that Seini’s death was accidental. Ms Edwards pointed to Waterhouse and Donnelly where offers to plead guilty to manslaughter had been accompanied by invitations to convict on manslaughter rather than murder, at the trial.
[65] Ms Edwards was critical of the fact that the Judge had adopted a discount of 20 percent in respect of the offer to plead guilty to manslaughter together with a further 10.5 percent discount for mitigating features other than the plea offer. An appropriate overall discount was no more than two and a half years (equating to just under 22 percent) from an 11 and a half year overall starting point.
[66] It is clear from the manner in which the Judge structured the sentence that he allowed a discount of approximately 20 percent in respect of both charges. However, Mr Ikamanu was not entitled to any discount in relation to the grievous bodily harm count because he had never offered to plead guilty to that charge. This meant that he received a discount of two to three months to which he was not entitled. This does not justify intervention on a Solicitor-General’s appeal.
[67] Otherwise, the judge was entitled to give discounts which reflected his view that Mr Ikamanu was genuinely remorseful[24] and in respect of the early acknowledgement of responsibility for the offending that caused the fatal injuries, as well as the offer to plead guilty to manslaughter, made in writing at an early stage. Although the Judge did not make specific reference to previous good character that is another consideration that on its own would have justified a significant discount.[25] Mr Ikamanu had no prior convictions for assault or violence, and his wife deposed at the trial that he had never been violent to her or the children in the past.
[68] In the circumstances, although the Judge adopted a generous approach, we have concluded that the end result cannot be regarded as manifestly inadequate. Overall, while we accept that a sterner sentence could not have been criticised, we are not prepared to intervene on a Solicitor-General’s appeal.
[69] The final issue raised by Ms Edwards related to the fact that the Judge did not impose a minimum term of imprisonment. He gave as the reason for declining to do so the fact that this was a one-off, out of character incident for which Mr Ikamanu accepted responsibility at an early stage at least insofar as the fatal head injuries were concerned.[26] He also stated that the sentence imposed was sufficient to hold Mr Ikamanu accountable and denounce the conduct. The starting point adopted adequately addressed deterrence and there was no need to take account of community protection.
[70] Ms Edwards argued that Venning J erred when he determined that the principles of accountability, denunciation and deterrence were addressed by the length of sentence imposed. She submitted that such an approach had been rejected by this Court in Donnelly. As in that case, a minimum term of imprisonment of half the length of sentence should have been imposed in order to hold Mr Ikamanu accountable for his offending, and for the purposes of denunciation and deterrence. She referred also to s 9A of the Sentencing Act which makes specific provision for sentencing in cases involving violence against children under the age of 14.
[71] Mr Lance contended that the Judge correctly decided that a minimum term of imprisonment was not necessary, noting that in making his decision he had specifically referred to Donnelly.
[72] In R v Brown this Court made it plain that when a minimum non-parole period is under consideration the Judge must carry out a two-stage process.[27] The first involves fixing the maximum length of the sentence by reference to all relevant sentencing considerations. Secondly, and as a separate exercise, it is necessary to consider whether the offending itself is sufficiently serious that serving the normal minimum period of one-third of the sentence will not be enough to punish, deter and denounce the offending.[28]
[73] In Waterhouse and Leuta an order requiring the offender to serve a minimum term was made, in each case on the basis that such an approach was justified as a response to violent and brutal treatment of a defenceless and vulnerable child to whom duties of trust and responsibility were owed.[29]
[74] Further, in Donnelly, this Court said:[30]
Mrs Smith submits that the Judge properly turned his mind to the imposition of an MPI. However, the Judge appears to have considered that, given the sentence already imposed, the only remaining issue was whether an MPI was necessary for the protection of the community. That is incorrect. This Court in Taueki noted denunciation and deterrence are both important sentencing values in cases of serious violence. We agree with Crown counsel that, given the nature of the case, an MPI was necessary to hold the respondent accountable for the offending and for the purposes of denunciation and deterrence.
(Footnote omitted.)
[75] We consider that a minimum term was required in the present case. Release of Mr Ikamanu after serving only three years and three months would not be sufficient to denounce his conduct and deter similar offending by others. A young child died as a result of this offending. We are of the opinion that a minimum term of 50 percent should have been imposed.
[76] The appeal against conviction is dismissed.
[77] Mr Ikamanu’s appeal against sentence is dismissed.
[78] The Solicitor-General's application for leave to appeal against sentence is granted and the appeal is allowed to the extent that we order Mr Ikamanu to serve a minimum term of imprisonment of one half of the sentence of six years and nine months’ imprisonment imposed in the High Court.
Solicitors:
Crown Law Office, Wellington for
Respondent
[1] R v Ikamanu [2012] NZHC 2755 at [27].
[2] Transcript of appellant’s police interview COA bundle, volume 1 [Police interview] at 25.
[3] At [6].
[4] Police interview at 20.
[5] Police interview at 21.
[6] Police interview at 22.
[7] We note that the defence did not close on this possibility, although it had been raised in evidence. Presumably this was because it did not have a strong evidential basis. It had not been mentioned by Mr Ikamanu in his police interview, but he evidently mentioned it to Sela Ikamanu who spoke to Dr Kelly about it. Emphasising this possible explanation for the pelvic injuries would have been contrary to the main plank of the defence case that the injuries occurred in Tonga in December 2009.
[8] R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [12].
[9] R v Munro [2007] NZCA 510, [2008] 2 NZLR 87.
[10] At [13].
[11] At [17].
[12] R v Donnelly [2011] NZCA 433.
[13] R v Leuta [2002] 1 NZLR 215 (CA).
[14] R v Waterhouse [2004] NZCA 63; (2004) 20 CRNZ 897 (CA).
[15] At [23].
[16] At [85].
[17] At [92].
[18] At [25].
[19] At [27].
[20] R v Taueki [2005] 3 NZLR 372 (CA).
[21] R v Ikamanu, above n 1, at [20].
[22] R v Hapuku [2012] NZHC 1314 and R v Ratana [2012] NZHC 811.
[23] At [28].
[24] Hessell v R [2010] NZSC 135, [2011] 1 NZLF 607.
[25] As in Ambach v R [2011] NZCA 93 where the sentencing judge reduced a starting point of 13 years for manslaughter by one year to take account of the offender’s lack of previous convictions and otherwise good character.
[26] R v Ikamanu, above n 1, at [32].
[27] R v Brown [2002] 3 NZLR 670 (CA).
[28] At [35].
[29] R v Waterhouse, above n 13, at [33]; R v Leuta, above n 12, at [80].
[30] R v Donnelly, above n 11, at [26].
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