NZLII Home | Databases | WorldLII | Search | Feedback

Court of Appeal of New Zealand
You are here:  NZLII >> Databases >> Court of Appeal of New Zealand >> 2017 >> [2017] NZCA 38

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Shailer v R [2017] NZCA 38; [2017] 2 NZLR 629 (3 March 2017)

Last Updated: 2 February 2018

For a Court ready (fee required) version please follow this link

IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
BETWEEN
 Appellant
AND
 Respondent
Hearing:
3 November 2016
Court:
Kós P, Harrison and Wild JJ
Counsel:
R M Mansfield and S R Lack for Appellant Shailer H S Edward for Appellant Haerewa B J Horsley and A J Ewing for Respondent
Judgment:
3 March 2017 at 10.00am

JUDGMENT OF THE COURT


The appeals are dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

[1] A three year old boy was placed by his mother in the temporary care of the appellants, Tania Shailer and David Haerewa. Two months later the little boy was dead. His name was Moko Rangitoheriri. There is no doubt that the appellants killed him. Charged initially with murder, they later pleaded guilty to his manslaughter and illtreatment.[1] Katz J sentenced them each to 17 years’ imprisonment, with a minimum period of nine years.[2] They now appeal those sentences.
[2] Section 8 of the Sentencing Act 2002 provides:
  1. Principles of sentencing or otherwise dealing with offenders

In sentencing or otherwise dealing with an offender the court —

(a) must take into account the gravity of the offending in the particular case, including the degree of culpability of the offender.
(b) ...
(c) must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate.

...

[3] Was this case “within the most serious of cases” of manslaughter? That question arises both generally and specifically in relation to Ms Shailer who was otherwise of good character, but suffers some mental health disorders.[3] Do those disorders mean that her level of culpability is reduced, so that in her case at least this is not within the most serious of cases of manslaughter (and so alter the starting point for her sentence)?[4] And in the case of Mr Haerewa, is his offending less serious than Ms Shailer’s, so that his offending too is not within the most serious of cases of manslaughter? These questions concerning the sentence starting point are the primary questions in this appeal.[5]
[4] The maximum penalty for manslaughter is life imprisonment. In this case Katz J adopted a starting point of life imprisonment for both appellants. However she concluded for the purpose of s 8(c) that circumstances relating to the offenders made it inappropriate that the end sentence also be life imprisonment. The primary reason was the early plea of guilty on the charges of manslaughter entered by each appellant. Had the charges remained murder, that would have little significance, except in relation to the imposition of a minimum period of imprisonment. But if life imprisonment is imposed for an offence other than murder, the minimum period of imprisonment is a determinate ten years.[6] There is no power to increase or decrease that minimum period.
[5] It is uncontested by the Crown that if the sentence starting point is life imprisonment, the Judge was correct to reflect the significant mitigation of the guilty pleas (and other mitigating considerations) by substituting a finite sentence. But were the discounts she gave adequate? And was the minimum period of imprisonment too high? These questions concerning the sentence end point are the secondary issues in this appeal.[7]

Facts

[6] On Friday 12 June 2015 three year old Moko Rangitoheriri and his seven year old sister arrived in Taupo with their mother, Ms Nicola Dally-Paki. Eight weeks later, on Monday 10 August 2015, Moko died.
[7] Moko and his sister had come to Taupo to be placed in the care of the appellants, Tania Shailer and David Haerewa. They were going to look after the children because Ms Dally-Paki’s eldest child was ill in Starship Hospital, Auckland. She was unable to have the younger children with her. The initial indication was that they would be with the appellants for two weeks or so. But the period dragged on to more than two months. Ms Shailer was a friend of Ms DallyPaki’s. The arrangement was made without reference to Mr Haerewa who was displeased by it. The appellants had four children of their own, ranging in age from 2 to 7 years. There was no suggestion that those children were other than well cared for. But the family was struggling economically and both appellants had mental health issues. Mr Haerewa suffered from schizophrenia. This had been diagnosed during a term of imprisonment, and in the three years since release he had been taking his medication. He had desisted from domestic violence. Ms Shailer’s mental health issues we will come to but she appeared to be suffering from posttraumatic stress disorder and to be prone to stress. She self-medicated these conditions by substance abuse (in particular marijuana).
[8] When Moko and his sister were first left with the appellants, no money had been provided. Shortly thereafter a series of payments were made. Over the eight weeks in which the children were cared by the appellants, some $1,150 was paid by Ms Dally-Paki and her family to the appellants.
[9] Moko, it would appear, had a propensity for mischief. Whether because of that or otherwise, the appellants developed an increasing animosity towards him. It appears that Mr Haerewa in particular did not like Moko. As Mr Haerewa put it in his police interview:

I just thought I could break it out of him ... he was just too stuck to his ways, just like it’s normal. Would be like my dad. I think it was making me even angrier because I could see his dad’s face. I hate him, I hate his father.

[10] Ms Shailer is intelligent and articulate. At the time of the offending she was enrolled in tertiary studies. She put Moko’s sister in some specialist counselling. She reported to CYFS her concerns for the children if they were returned to their family home. All of this makes what happened later, and what did not happen later (i.e. not getting medical assistance for Moko), almost inexplicable. It appears that both Moko and his sister were difficult. Ms Shailer perceived this might well be because of significant domestic violence in their own family home. Early on she approached a social services counsellor she knew seeking help in relation to Moko. He was hurting himself and her children. She asked the counsellor if she had any books on positive parenting to assist her change Moko’s behaviour.

Moko’s manslaughter

[11] We quote here from the summary of facts, which formed the basis of the appellants’ pleas of guilty and which they do not dispute:

Both defendants began to assault Moko. The degree and severity of the assaults escalated, with each defendant encouraging and supporting the other in their behaviour. A culture of violence against Moko evolved.

The defendant Shailer was observed by children in the house to punch, kick and slap Moko. The defendant Shailer was observed by one of the children in the house to bite Moko multiple times to his arms and face, with the degree of force being so hard that it caused Moko’s skin to come off and his face to start bleeding.

The defendant Haerewa admitted to Police that he physically assaulted Moko continually, and especially over the four days prior to his death. Haerewa admitted that he started getting into a routine of picking on Moko, that he didn’t want Moko around him and that he didn’t like Moko in his presence and would constantly have him in time out, often sitting in the bathroom for extended periods (hours) of time on his own. In particular, he admitted to:

Slapping Moko to his face and body with his hand and with a jandal;

Kicking him to the side of his body and his legs;

Grabbing him by the arms and throwing him onto his bed (a mattress on the floor);

Slapped him on the face and cut his lip;

Kicked him;

Threw him with force onto his bed and then stomped on him on his back;

Threw him on the floor and kicked him in the back;

Rubbed faeces in his face after Moko had soiled himself;

Scrubbing Moko’s body so hard in the shower that he has removed scabs on his body;

Picking Moko up in the bathroom, after he collapsed and letting him drop face first onto the ground, adding that this occurred about 3–4 times;

Placing his hand over Moko’s mouth to stop him screaming out in pain.

The main event that caused Moko’s death was inflicted by the defendant Shailer stomping on the abdomen and stomach of Moko with significant force. Two of the child witnesses who saw the stomping described the stomping as “really really hard” and that Moko was groaning and expelling bursts of air.

[12] This stomping incident occurred, it appears, on Wednesday 5 August 2015. The following day, Thursday 6 August 2015, Moko was soiling himself uncontrollably. He could no longer control his bowels. The appellants were aware that he was seriously ill.
[13] By Sunday, 9 August 2015, Moko could barely walk. His face was swollen. He could barely open his eyes. He kept falling to the ground. He was soiling himself and vomiting. The appellants dressed him in nappies. He was kept in his room for the entire day. He asked for water. Mr Haerewa gave him some water initially. He then refused him any more.
[14] Mr Haerewa continued to assault Moko. He kicked him and wiped Moko’s faeces on his face. He placed him in the shower to clean him up. He washed him with such force as to remove scabs. Moko screamed in pain. Mr Haerewa covered his mouth to silence him. Moko could barely support himself, and fell. Mr Haerewa flipped him onto his back. He dried him, put him in a nappy and “chucked him” back in the bedroom.
[15] At this point it would have been obvious that Moko desperately needed medical attention. None was obtained.
[16] On Monday morning 10 August 2015, the date of Moko’s death, he was unable to communicate. He could barely move. When forced to move he fell to the ground. His breathing was laboured. His stomach was hardening. Ms Shailer went to a course in the morning. She behaved as if everything was fine. Driven home by a friend, she said she needed to stop at a chemist. She attempted to buy an EpiPen. This is a consumer pharmaceutical device used to inject epinephrine (adrenalin). The chemist offered to order one, but she declined the offer. On the way home she told her friend that Moko had fallen from a wood pile the day before, but he was okay now. The friend advised Ms Shailer that she should take Moko to the hospital to have him checked in case he had any head injuries. She offered to drive the two there. Ms Shailer declined the offer. She said she would call later if she needed a lift.
[17] Upon returning home, where Mr Haerewa had been all day, the pair tried to revive Moko. Ms Shailer performed mouth to mouth resuscitation. Mr Haerewa left to pick up the couple’s children from school. At 3 pm Ms Shailer rang 111. She told the operator Moko had fallen from a woodpile the day before, but had been fine earlier in the day. That was, of course, a lie. She told the operator he was now really cold, unconscious, not breathing properly and that his stomach was really hard.
[18] The ambulance officers scooped Moko up as soon as they saw him and rushed him to Taupo Hospital’s Emergency Department. Taken to the resuscitation room, staff observed that his body was too cold for any of the body temperature measurement devices. A core temperature of 20 degrees was later obtained. The normal body temperature is 36.8 degrees. Starship Hospital at Auckland was contacted. A helicopter and staff travelled to Taupo. But the Taupo Hospital staff were unable to revive Moko. At 10 pm that evening he was pronounced dead.

Post-mortem

[19] The pathologist’s examination established the cause of Moko’s death to be multiple blunt injuries.
[20] The primary cause of death was lacerations and haemorrhaging deep in Moko’s abdomen resulting from the stomping. This had caused his bowel to rupture. The leaking of faecal matter into his abdomen caused peritonitis and septic shock. In addition to Moko’s abdominal injuries, head injuries from blunt force had caused brain oedema (swelling). Untreated in sufficient time this too contributed to Moko’s death.
[21] The secondary cause of death was failure to treat these injuries. The ultimate tragedy in this matter is that had Moko been presented to the hospital earlier, the sepsis and oedema could have been entirely prevented and reversed. And Moko would still be alive today.
[22] In addition to these ultimately fatal injuries Moko had human bite marks on his left cheek and right shoulder, right wrist and left upper arm. Mr Haerewa can be excluded as a person who caused bite marks to Moko’s right cheek and shoulder. No dental records were available in the case of Ms Shailer. She admitted to biting Moko once, on the face. Moko’s sister witnessed that act. The forensic odontologist concluded that these bite marks had to be inflicted by someone older than 12 years of age (i.e. older than any child in the house). The nature, location and orientation of the bite marks made it impossible that any were self-inflicted.

Sentencing

Dr Chaplow’s report

[23] A report from Dr D G Chaplow, a very experienced forensic psychiatrist, was tendered to the sentencing Judge by counsel for Ms Shailer. Based on a combination of Crown disclosure and self-reporting by Ms Shailer (whom he had interviewed in March 2016) Dr Chaplow concluded Ms Shailer had an adjustment disorder with anxiety and depression. She was also prone to substance abuse (alcohol and marijuana). Her use of marijuana was significant. Right up to the time she was arrested on the current charges she was using the equivalent of five tinnies or fifteen marijuana cigarettes a day. She self-reported as “stoned constantly”. Also identified was a “flashback” when Moko had, apparently, hit her young daughter. This was some two weeks after Moko arrived at the house. She said at that moment that she was “engulfed in feelings of inadequacy and failure”. She (and Mr Haerewa) then began to treat Moko harshly”. That behaviour continued for the six weeks until Moko’s death.
[24] Dr Chaplow considered that Ms Shailer had a mental illness, partly engendered by past trauma and current stress, and manifested by anxiety, sleep difficulties, depression and perhaps post-traumatic stress disorder and instances of disassociation. She said that she could not remember the incident in which she stomped Moko, although it was amply attested to by other children in the house, who witnessed it and Ms Shailer does not now dispute that it occurred. Dr Chaplow considers that Ms Shailer may have been operating under a mental illness at the time of the offending. He says that:

It appeared that perspective concerning Moko’s behaviour was totally lost at the time he was physically abused. This may have occurred by sense of overwhelming stress and perhaps a period of disassociation and serious abuse occurred to Moko. It also appeared (from Ms Shailer’s testimony and from a narrative to me) that in the final stages of Moko’s life she had an awareness that she should seek medical assistance for him but failed to do so.

Sentencing approach

[25] Katz J considered a global starting point for the manslaughter and illtreatment charges. She considered it artificial to separate the two charges given that both arose from a continuing course of abuse and neglect. She then considered the appropriate starting point, and in that respect s 8(c) of the Sentencing Act 2002 assumed importance. We have set it out already in this judgment.[8] The first question arising was, therefore, whether this was a case that fell into the category of the “most serious” manslaughter cases.
[26] Katz J considered the relative culpability of the two appellants. Because Ms Shailer was directly responsible for the physical stomping on Moko’s abdomen, the Crown had submitted that Ms Shailer was more culpable. Katz J did not agree. She considered the differences in culpability relatively minor. It was not appropriate to focus solely or even primarily on who inflicted the fatal blow. As the Judge put it:[9]

That is because you both assaulted Moko continuously, and were also a party to the serious assaults inflicted by the others. Yours was a joint enterprise.

While Ms Shailer’s stomp directly contributed to his death, Mr Haerewa admitted encouraging and abetting that act, assaulted Moko repeatedly and created and encouraged “a culture of violence” against Moko. In addition, neither appellant sought medical help for Moko when he was dying.

[27] There were a number of aggravating factors: extreme, prolonged and gratuitous violence, attacks to the head, Moko’s vulnerability, cruelty and callousness, the fact that Moko’s sister and the other four children witnessed the brutal assaults, and breach of trust. These were all at the highest levels of seriousness. They brought the case into the category of “most serious” of all manslaughter cases. There were no mitigating features of the offending that materially reduced its overall level of seriousness.[10]
[28] It followed that a starting point of life imprisonment was appropriate. The Judge referred to two other cases involving manslaughter of a child which she considered most similar to the present ones. In R v Witika, end sentences each of 16 years’ imprisonment were imposed.[11] That was a case in which a mother and stepfather had subjected a two year old girl to violence and brutality of incomprehensible cruelty, burned her with hot water, and failed to provide medical care for the burns they had inflicted. The child’s name was Delcelia Witika. The defendants blamed each other for her injuries. They were sentenced as secondary parties. This Court observed that had a principal offender been identifiable there could be no doubt that this was a case where the maximum sentence of life imprisonment would have been appropriate.[12] And in R v Haerewa the defendant had regularly assaulted a 10 year old boy for a four month period by punching, kicking, standing on the boy’s chest and attacking him with weapons before he died.[13] The boy’s name was James Whakaruru. In that case an end sentence of 12 years’ imprisonment was handed down.
[29] Each of those cases pre-dated the requirement in s 8(c) of the Sentencing Act 2002 that the maximum penalty be imposed for the most serious of cases. Justice Katz also noted the enactment of two other statutory provisions. First, in 2008 s 9A of the Sentencing Act 2002 was enacted. It sets out certain aggravating factors the Court must take into account when sentencing for violent offending against children. Secondly, the enactment in 2012 of the charge of ill-treatment of a child, to which the appellants here pleaded guilty.[14] It carries a maximum penalty of ten years’ imprisonment. The prior equivalent offence, cruelty to a child, carried a maximum penalty of five years’ imprisonment. The enactment of these provisions, the Judge said, reflected the community’s deep concern about child abuse.[15] It was a clear indication by Parliament that violent offending against children needed to be treated with the utmost seriousness.
[30] After adopting a starting point of life imprisonment, the Judge considered whether personal circumstances relating to the offenders made life imprisonment inappropriate. Section 8(c) of the Sentencing Act 2002 required that. The Judge, quite properly, focused mainly on Ms Shailer’s position.
[31] The Judge reviewed Dr Chaplow’s report. We have discussed that report already.[16] The Judge expressed scepticism about Ms Shailer’s claimed memory failures and noted that to the extent they were associated with drug and alcohol use, they were non-mitigating. The Judge accepted that Ms Shailer was a good mother to her children, and had realistic prospects of rehabilitation. In combination these considerations would justify a discount of 5 per cent from a determinate sentence in Ms Shailer’s case only.
[32] The Judge then went on to consider the guilty pleas entered. The Crown accepted that they were to be treated as early, and the Judge concluded that had a finite starting point been adopted, a discount of 20 per cent would have been appropriate. That applied to both appellants.
[33] Katz J then considered whether these factors (primarily the guilty pleas) rendered a sentence of life imprisonment inappropriate. As noted earlier there is no power to set a minimum term of imprisonment other than 10 years if life imprisonment is imposed for offending other than murder.[17] The Judge said:[18]

Accordingly, the only possible way in which I can give you credit for your guilty pleas is to reduce your starting point of life imprisonment to a finite term of imprisonment. In my view it is appropriate to do so.

[34] The Judge did not take a mathematical approach to reaching an appropriate end point. A life sentence would have been appropriate but for the guilty pleas entered. The end sentence needed to reflect that fact, but also give credit for the guilty pleas and other personal mitigating personal circumstances in Ms Shailer’s case. The Judge said:

Taking all of these matters into account, I have concluded that an end sentence of 17 years’ imprisonment should be imposed on each of you. Although Ms Shailer is entitled to a slightly greater overall discount for personal mitigating factors than Mr Haerewa, I also found that she is slightly more culpable. These two factors, in effect, cancel each other out.

[35] The Judge imposed a minimum period of nine years’ imprisonment.

Further evidence on appeal

[36] Ms Shailer seeks to produce a further report from Dr Chaplow. He undertook a further interview of Ms Shailer on 13 October 2016. She stated she did not remember much about the attacks, but did remember kicking Moko into the wall. She explained she would dissociate if she did not like what was going on around her, and had done so since her teenage years – “put myself in my own bubble” and “I know I’m there but I can’t hear or feel anything”. The doctor opines that Ms Shailer dissociated when stressed by Moko’s behaviour and would lose all feeling, when disciplining him. This would “effect [sic] her perspective and judgment resulting in her actions being only a proportion to what she intended, namely dealing with a three year old boy”. He also says Ms Shailer may have had post-traumatic stress disorder from previously being assaulted by Mr Haerewa.
[37] Mr Horsley for the Crown opposed receipt of this report. He submitted that it raised no substantial new information, and impermissibly entered into the province of advocacy rather than expertise.
[38] We have some sympathy with that submission. We gain modest assistance only from the report, but have borne it in mind to the extent it expands on the issue of disassociation and its implications here.

Issues

[39] The issues on appeal are these:

Issue one: Do Ms Shailer’s mental health disorders materially diminish her culpability for the offending?

[40] Mr Mansfield did not seek to diminish the gravity of the offending, viewed objectively. Mr Mansfield frankly accepted that but for Ms Shailer’s mental illness, this fell into the most serious of cases of child manslaughter.
[41] Mr Mansfield submitted that Ms Shailer’s actions were a direct result of her mental health disorders. These diminished her culpability for what otherwise was offending of a most serious kind. Moko was a child who required discipline. Ms Shailer’s mental health meant that she did not perceive discipline in an appropriate manner. She did not appreciate the harm she was causing Moko. She was not motivated to hurt or degrade Moko for entertainment or depravity. That significant aggravating factor was present in other cases, but absent here. She was otherwise acknowledged as a good mother to her children and had attempted, prior to her mental health deterioration, to try and help Moko.
[42] Mr Mansfield submitted that having regard to other authorities and applying an appropriate diminution in culpability for Ms Shailer’s mental health condition, a finite starting point of no more than 14 years’ imprisonment was appropriate.

Discussion

[43] New Zealand has no formal doctrine of diminished responsibility. Mental disorder elevated to the level of insanity excuses legal responsibility altogether. Diminished responsibility short of insanity is a discretionary consideration in sentencing. Its effect may be to mitigate sentence, although it may also be a neutral consideration and (where public safety issues are prominent) it may even aggravate the level of sentence.[19] As Professor Brookbanks has noted:[20]

The defence of insanity is available for most offences committed by persons suffering from serious mental illness or disorder at the time of the offence. The majority of mentally disordered offenders do not plead insanity; they prefer to accept their conviction and seek a therapeutic disposition at the sentencing stage. Generally, the Courts are sympathetic to such an approach and recognise that, for the most part, mentally disordered offenders either deserve mitigation or require treatment rather than punishment.

[44] Mental health disorders falling short of a defence of insanity may be taken into account in the sentencing process at two points.
[45] First, logically and in accordance with s 8(a), it may affect the starting point of a sentencing exercise. That provision acknowledges the gravity of the offending is affected by the degree of culpability of the offender — and mental health is potentially relevant to that. However its influence on starting point is not confined to the discrete question of culpability, as we will see. Secondly, it may be taken into account as a mitigating circumstance relevant to the offender (rather than the offending).[21] It is the first aspect we are concerned with on this issue.
[46] The starting point involves a consideration of the offending itself, rather than considerations personal to the offender.[22] The juristic concept of “offending” includes aggravating and mitigating features relating to the commission of the offence. That includes, as s 8(a) confirms, the offender’s personal culpability. A defendant may, for instance, have a secondary or limited part in the commission of the offence. Reduced culpability may reduce the starting point of the sentence.
[47] Some authorities appear to suggest a two-fold analysis between culpability on the one hand and proportionality on the other.[23] The real position is more subtle. The leading case is E (CA689/2010) v R, drawing on the Victorian Court of Appeal decision in Verdins v R, in which this Court explained various ways in which mental illness may affect sentence:[24]

(a) The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

(b) The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

(c) Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

(d) Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

(e) The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

(f) Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

[48] We make three points about this passage. The first is that the factors (e) and (f) are likely to be more relevant in the second sentencing stage: consideration of mitigating or aggravating circumstances personal to the offender. Secondly, factors (b), (c) and (d) demonstrate that the relevance of mental disorders at the first stage is not limited to culpability. It is material to the form of sentence imposed, and to both general and specific deterrence considerations. Thirdly, we consider it is important not to place the analysis of the relevance of mental disorder in sentencing in a juristic straightjacket. The Sentencing Act 2002 establishes a somewhat different order for analysis than the Victorian criminal legislation on which Verdins (and therefore E (CA689/2010) v R) were based. Section 7 and 8 sentencing purposes and principles include the need for accountability and responsibility,[25] denunciation,[26] community protection,[27] rehabilitation and reintegration,[28] and proportionality having regard to the whole of the circumstances of the offender.[29] All of these may be engaged by mental health disorders. Some of these considerations fall within the first stage – setting the starting point based on the offending – and others are factors personal to the offender relevant at the second stage. It may also be noted that s 9(2)(e) provides as a personal mitigating factor, relevant to the second stage, “that the offender has or had at the time when the offence was committed, diminished intellectual capacity or understanding”. Professor Brookbanks has noted that this provision is not appropriate to describe diminished capacity caused by mental illness or disorder.[30]
[49] It is unnecessary in this decision to comment further on the broader regime. The issue we are here concerned with relates to culpability only.
[50] As we have noted already, mental health disorders may reduce offender culpability. As this Court noted in R v Nelson, sentencing has a moral base: “As such, mental disorder may mitigate moral fault and, accordingly, criminal culpability.”[31] Criminal legal responsibility is a juridical response to an offender’s willed choice to offend.[32] Mental health disorders diminishing that willed choice may also diminish the extent of the sentencing response. But a mental disorder without more cannot logically justify a reduction in the starting point of a sentence, based on diminished culpability, unless there is evidence of its causative impact on that culpability.[33]
[51] In R v Clarke this Court drew a distinction between an offender whose mental disorder produced unpremeditated or uncharacteristic behaviour unlikely to be repeated and repeated serious violence over a prolonged period where the offender had insight into his offending at the time.[34]
[52] In Ms Shailer’s case, Katz J was sceptical about the extent to which Ms Shailer’s mental health disorders were clearly causative of her offending. She noted in particular that memory difficulties appeared to be associated with drug use, and were not thereby mitigating. The Judge had reservations regarding the suggestion that Ms Shailer had a period or periods of disassociation when the most serious abuse occurred.
[53] The Judge was right to be sceptical. Mr Mansfield was unable to identify any particular link between Ms Shailer’s diagnosed mental disorder and her offending, by which we refer to the entire course of her conduct. It is clear that Ms Shailer hitherto had been a generally responsible member of the community despite her difficult circumstances. She was a good mother to her children. Her behaviour in this case was extraordinary and out of character. But none of that can obscure the extreme violence meted out over a period exceeding six weeks to a child of three years. And in particular, the neglect to get Moko medical treatment.
[54] The excuse proffered for the failure to get medical treatment was Ms Shailer’s fear that she would lose care of her own children. That provides a telling insight into the reality of the situation in this case: Ms Shailer may have been stressed, and she may (although the evidence is equivocal) have disassociated when she stomped on Moko. But these conditions were at best intermittent episodes within a prolonged course of criminal assault throughout the final weeks of Moko’s life. His distressed health was obvious to anyone who cared. It was obvious to Ms Shailer: she appreciated she might lose her children if it became known. It was obvious to her also that Moko needed urgent assistance when she went to the chemist to buy an EpiPen. Around the most serious August offending, Ms Shailer went about her daily life, including minding her own children and undertaking tertiary studies.
[55] Her mental health problems may have contributed significantly to the most serious event within the whole course of conduct constituting the offending. But that is one element only among the events causing Moko’s death for which she is culpable. It cannot seriously be said to be causative of the other major elements: Moko’s head injuries and the failure to obtain medical assistance.
[56] In these circumstances we agree with Katz J that Ms Shailer’s mental health disorders did not materially diminish her culpability for her offending (and therefore do not reduce the starting point of her sentence).

Issue two: Did Mr Haerewa’s participation materially diminish his culpability for the offending?

[57] Mr Edward, for Mr Haerewa, submitted that while his client was involved, he was “clearly a secondary party”. Mr Edward submitted that no act of violence causing the death of Moko could be attributed to David Haerewa as the cause of death was clearly the result of Ms Shailer stomping on Moko’s abdomen. He submitted a distinction could be made between the culpability of the two appellants on that basis.

Discussion

[58] We consider the Judge was right not to draw a material distinction between culpability of the appellants. We repeat what the Judge said at [26] of her sentencing notes:

In my view, however, any differences in culpability between you are relatively minor. It is not appropriate, in my view, to focus solely or even primarily on who inflicted the fatal blow. That is because you both assaulted Moko continuously, and were also a party to the serious assaults inflicted by the other. Yours was a joint enterprise. While Ms Shailer’s stomp on Moko’s stomach directly contributed to his death, Mr Haerewa has admitted encouraging and abetting that act by also assaulting Moko repeatedly and by creating and encouraging a culture of violence against Moko. Neither of you sought medical help for Moko when he was dying. While I accept the Crown’s submission that Ms Shailer is more culpable, the difference, in my view, is very minor.

[59] By no means could Mr Haerewa’s involvement be described as “secondary”. The summary of facts, accepted by both the appellants, identifies three fundamental causes of death. One was the stomping, and for that Ms Shailer was primarily responsible, subject to the qualifications identified by the Judge. Secondly, the head injury to Moko that caused brain swelling (oedema). For that Mr Haerewa must take every bit as much responsibility as Ms Shailer. Thirdly, the failure to get Moko medical attention. The same observation applies.
[60] We conclude therefore that Mr Haerewa’s participation did not materially diminish his culpability for the offending.

Issue three: Was this case “within the most serious of cases” of manslaughter?

[61] Mr Mansfield submitted in his written argument that the present case could be distinguished from the case of Witika which we have discussed already at [28]. That, Mr Mansfield says, was horrific offending in a league of its own. It was on its facts a case significantly more serious than the appellants’ offending, even before factoring in Ms Shailer’s reduced culpability due to mental illness. Mr Mansfield’s submission was that unless Witika could be distinguished or said to be no longer a relevant authority, the starting point should therefore have been a finite one and less than in Witika, which was 16 years.
[62] However, Mr Mansfield varied that submission orally. He accepted that but for Ms Shailer’s mental health disorder this would have been in the most serious of cases. That is, for the purposes of s 8(c) of the Act it would attract a starting sentence of life imprisonment, subject to mitigating factors personal to the appellants.
[63] Mr Edward made no similar concession. His essential submission was that three other sentencing decisions involved similar offending, and were not considered by the sentencing Judge. They are R v Ngati,[35] R v Leuta,[36] and Waterhouse v R.[37]

Discussion

[64] First, we agree with Mr Horsley’s submission that the maximum penalty has never been reserved for the worst case imaginable. It has always been available for the “worst class of cases encountered in practice”.[38] That approach was then reinforced with mandatory effect by the enactment of s 8(c) in 2002. At the time of enactment the then Justice Minister described the purpose of the Bill as to “[leave] no doubt at all, in the judicial mind, that when you have the worst type of offending in any category the maximum sentence will then be applied”.[39]
[65] Secondly, we agree with Katz J that enactment of s 9A of the Sentencing Act 2002 and the 2012 enactment of the secondary charge in this case of ill treatment of a child (with a maximum penalty of ten years’ imprisonment) signals that a sterner view thereafter need be taken by the Courts in relation to physical ill-treatment of a child, in particular child manslaughter.
[66] Thirdly, against that background we consider the distinction between the offending in the present case in that in Witika to be relatively slight. In Witika the immediate period of prolonged assault prior to Delcelia Witika’s death was also six weeks. She also died of blunt trauma to her abdomen, causing peritonitis when the appellants there did not seek medical treatment. Again a parallel with the present case. The distinctive feature perhaps in that case was the fact that some measure of physical torture had been applied to Delcelia Witika’s body, including cigarette burns and hot water burns. In the present case Moko was beaten persistently, and bitten on a number of occasions. We do not consider the distinction between the two cases sufficient to say that Witika is among the most serious of cases (which plainly it is) and that the present case is not. In that case life imprisonment would have been imposed but for the inability to identify the principal offender - there being a single cause of death in that case.
[67] Fourthly, we do not consider the cases relied on by Mr Edward assist.[40] The victim in Ngati was a three-year old boy who had been subjected to a severe beating with a canoe or oar handle, then was struck with a hand on two occasions, and also with a baseball bat. A starting point of 10–11 years was adopted. Leuta was a Solicitor-General’s appeal against sentence. A mother had assaulted her child on a single occasion with a strap, leading to his death. The Court of Appeal took a starting point of 10 years. Waterhouse was a single assault by a foster carer of a child by punches to the stomach. A starting point of 10 years was taken. Each of these cases is far removed from the long extended violence that characterises Witika and the present case. They also predate the statutory amendments discussed at [29] and [65] above.
[68] Fifthly, we consider that a joint enterprise perpetrated over a period of weeks leading up to the killing of a defenceless child by a caregiver is necessarily to be viewed by the Courts at least as (and probably more) seriously than a single extreme assault on an adult. The latter may attract a 15 year starting point in more serious cases, such as Waipuka v R.[41] In that case this Court observed at [36]:

This case is a reminder that the maximum sentence for manslaughter was life imprisonment and that random acts of senseless and extreme violence resulting in death are likely to result in stern sentences in appropriate cases. This was such a case. On the Judge’s findings, it was far removed from the single punch manslaughter cases. Rather, as the Judge found, this was a brutal attack on a vulnerable victim by an offender who was looking for a fight...

[69] It follows we consider Mr Mansfield’s concession was correctly made. This case is among the most serious cases of manslaughter.

Issue four: Were the sentence discounts for the appellants’ personal mitigating circumstances adequate?

[70] Mr Mansfield submits that, as a matter of methodology, once the Judge determined life imprisonment was not appropriate she should have adopted a finite sentence starting point and then made discounts. That approach, which is more transparent, was taken by Miller J in Waipuka.[42] The discount Katz J gave from life imprisonment to 17 years was not transparent. Factors such as the guilty plea and mental illness should be relevant both in assessing whether a sentence of life imprisonment was appropriate, and in making deductions if life imprisonment was not appropriate.
[71] Mr Mansfield also submitted that the discount for Ms Shailer’s mental health difficulties was inadequate. The causal connection with the offending was stronger than the Judge acknowledged and mitigated culpability. And the Judge did not sufficiently allow for Ms Shailer’s lack of previous convictions, her good prospect of rehabilitation and reintegration into the community, and her good character. This factor was bound up in the 5 per cent discount for mental illness, and should have been acknowledged separately. Mr Mansfield submitted a discrete reduction of 5 per cent for mental health difficulties should have been given, together with a further 5 per cent for previous good character and prospects of rehabilitation (taken together).
[72] Both appellants say the discount for guilty plea was inadequate. A full 25 per cent Hessell discount should have been applied.[43] The Judge erred in taking into account that Ms Shailer had the benefit of not facing the risk of a conviction for murder, and that by pleading guilty she had removed the need for her children and Moko’s sister to give evidence.

Discussion

[73] Differences in sentencing approach are often available on appeal. But that cannot be allowed to obscure the fundamental question: was the sentence manifestly excessive or not?
[74] The Judge was bound, we have found, to adopt a starting point of life imprisonment for the offending itself. This she did.
[75] An indeterminate life sentence is not one which normally attracts discounts for personal mitigating circumstances or an early guilty plea. (Nor does it attract uplifts for personal aggravating circumstances). Life is life. In the case of a life sentence for murder, some such considerations may be taken into account in setting a minimum period of imprisonment under s 86 of the Sentencing Act 2002 — or not setting one at all. But there is no power to set a minimum period of imprisonment in the case of a life sentence other than for murder. In such a case the non-parole period is, by statute, simply 10 years.[44]
[76] Section 102 of the Act, which deals with convictions for murder, permits a sentence other than life for that crime only if that sentence would be manifestly unjust in all the circumstances. No authorities were cited to us where the fact of an early guilty plea had triggered that exception. Nor have we been able to identify such a case. That contrasts with s 104, whereby an early guilty plea may affect the minimum period of imprisonment imposed.[45] As this Court has observed, in the context of s 102:[46]

It would be almost inconceivable that a guilty plea on its own could render life imprisonment “manifestly unjust”, although potentially a guilty plea, when combined with other factors, could render life imprisonment manifestly unjust.

Similarly, in Malik v R this Court said:[47]

An offender who is convicted of murder must be sentenced to life imprisonment absent exceptional circumstances making that sentence manifestly unjust. Exceptions are rare; as this Court noted in R v Williams, the presumption of life for murder is strong, reflecting the sanctity accorded human life and the community's abhorrence of the crime. Rare exceptions aside, the usual sentencing methodology in ss 7 to 10 of the Sentencing Act does not apply because the sentence is indefinite and mandatory, whatever the mitigating factors. No question arises, for example, of a discount being given for a guilty plea.

[77] In the present appeals, however, the Judge concluded that the guilty pleas entered required recognition – and that the only way to do that was to substitute a finite sentence for an indeterminate life sentence. This was a step the Judge was not bound to take. To take it lay within her sentencing discretion. But it was a most lenient step.
[78] In Mr Haerewa’s case the only discount he could possibly contend for was for his guilty plea. The Judge adopted a 20 per cent discount for that. As the passage from the sentencing notes recorded at [34] sets out, the Judge adopted a post-discount finite sentence of 17 years. That involves, as Mr Horsley submitted, equating life in this case to 21 years and 3 months.
[79] In our view that calculation, which Katz J did not explain, is also distinctly lenient. The highest finite maximum sentence short of life imprisonment prescribed in the Crimes Act 1961 is 20 years.[48] In Chen v R, for example, substantial importers of methamphetamine and pseudoephedrine were re-sentenced by this Court on the Solicitor-General’s appeal against finite terms of imprisonment.[49] Those finite sentences were found to be manifestly inadequate. Life sentences were held to be within range, but terms of 25 years imprisonment were substituted for the lesser determinate sentences imposed in the High Court.[50] In R v Thompson this Court upheld a 25 year non-parole period (the finite 30 year sentence not being challenged).[51] Finite sentences of 20 years have been upheld by this Court in several cases involving manufacture and supply of methamphetamine.[52]
[80] We do not intend to attempt to do what Parliament has not seen fit to do and equivalise life and finite sentences. For that reason, we do not adopt Mr Horsley’s suggestion that life imprisonment represents a finite sentence of 30 years, given that parole eligibility is usually triggered at one-third of time served (and there is an automatic 10 year non-parole period in the case of this life sentence).
[81] Had a starting point of life not been adopted, a finite period of 25 years could not be faulted. Even if a 25 per cent (rather than 20 per cent) discount been appropriate in this case for an early guilty plea, Mr Haerewa’s sentence cannot conceivably be described as manifestly excessive.
[82] We turn now to Ms Shailer. We accept Mr Mansfield’s submission that prior good character, mental health issues and prospects of rehabilitation together deserved a greater discount than 5 per cent, if the determinate approach taken by the Judge was applied. As we have noted, Mr Mansfield suggested a total of 10 per cent. On the other hand, Ms Shailer’s greater culpability – in particular for the act of deliberately stomping on Moko, that action directly causing his death – would also have compelled a higher notional starting point than Mr Haerewa. Without the need, therefore, to engage in close mathematical analysis, it must again follow in Ms Shailer’s case that her sentence cannot conceivably be described as manifestly excessive.
[83] We turn to the further objection noted at [72] above concerning the supposed benefit to Ms Shailer of not receiving a conviction for murder. Unlike the Judge we do not regard that as a relevant consideration. But it makes no difference to the final sentence and we say no more about it.

Issue five: Was the minimum period of imprisonment too high?

Submissions

[84] As we have noted, Katz J imposed minimum periods of imprisonment of 9 years for each appellant. That equates to 53 per cent of the finite sentences imposed on them.
[85] Mr Mansfield argued that an MPI of no more than 50 per cent of the end sentence was appropriate. The focus of his argument, however, was on the starting and end sentence points. He did not emphasise the MPI point particularly in oral submissions. Mr Edward also focused on the starting and end points. He too submitted the MPI should be no more than 50 per cent. He contended also that had life imprisonment been imposed, a ten year MPI would have applied. A release date just one year less than that insufficiently reflected Mr Haerewa’s early guilty plea.

Discussion

[86] We are not persuaded that the sentencing Judge erred. First, it was accepted that an MPI is appropriate in this case. That is, it was accepted that release at one-third of sentence would be insufficient to punish, deter and denounce the offending, as well as to protect the community. Secondly, the MPI, at 53 per cent of the end sentence, is just three per cent more than the 50 per cent contended for by counsel. To alter it thus would be tinkering. Thirdly, we do not consider the MPI adopted to be out of range. Other less serious child manslaughter cases have regularly attracted MPIs of 50 per cent or more.[53] Fourthly, we agree with Mr Horsley that the appellants’ guilty pleas did not merit further material recognition when setting the MPI. As he acknowledged, a guilty plea that demonstrates insight may reduce the s 86 demand for accountability. But at this stage of sentencing, personal mitigation may be entirely outweighed by the gravity of the offending, as this Court noted in Ross v R and R v Gordon.[54] In this case, involving the most serious instance of child manslaughter, a nine year MPI at 53 per cent of the finite sentence was entirely within range and not manifestly excessive.

Conclusion

[87] The duration, cruelty and physical depravity of this offending by two adults acting together against a defenceless three year old child placed it within the most serious of cases for which the penalty of life imprisonment is prescribed. The legal classification of murder or manslaughter does not affect our analysis of its scale. All the recognised sentencing principles called for a term of imprisonment which reflected society’s denunciation. Ms Shailer and Mr Haerewa can count themselves fortunate that they were not sentenced to life imprisonment.

Result

[88] The appeals are dismissed.






Solicitors:
Crown Law Office, Wellington for Respondent

[1] Crimes Act 1961, ss 171 and 195.

[2] R v Shailer [2016] NZHC 1414.

[3] We put to one side as immaterial an historic shoplifting conviction.

[4] It is uncontested that Ms Shailer’s mental health may affect the end point of the sentence as a consideration or circumstance concerning the offender.

[5] These primary issues are discussed at [40] to [69] below.

[6] Parole Act 2002, s 84(3).

[7] These secondary issues are discussed at [70] to [86] below.

[8] At [2] above.

[9] R v Shailer, above n 2, at [26].

[10] Matters referred to were the lack of consultation with Mr Haerewa on the children coming into the house, the extended stay beyond the initial two weeks suggested, and that Moko was a challenging child to manage.

[11] R v Witika [1993] 2 NZLR 424 (CA).

[12] At 440.

[13] R v Haerewa HC Napier S5/99, 18 August 1999; appeal dismissed Haerewa v R CA431/99, 3 February 2000.

[14] Crimes Act 1961, s 195.

[15] R v Shailer, above n 2, at [47].

[16] See above at [23]–[24].

[17] Parole Act 2002, s 84(3).

[18] R v Shailer, above n 2, at [65].

[19] See for example R v Tapueluelu CA 172/99, 29 July 1999 at [15].

[20] Warren Brookbanks and Sandy Simpson (eds) Psychiatry and the Law (LexisNexis, Wellington, 2007) at 199 (footnotes omitted).

[21] This was the focus of this Court’s decision in E (CA689/2010) v R [2011] NZCA 13, (2011) 25 CRNZ 411 where at [71] it was noted that discounts at the second stage for mental illness have ranged between 12 and 30 per cent.

[22] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

[23] See for example Nelson v R [2014] NZCA 121 at [22].

[24] E (CA689/2010) v R n 21 above, at [70]; Verdins v R (2009) 16 VR 269 (VCA), at [32]. See also R v Nilsson CA552/99, 27 July 2000 at [10]; and R v Rys [2007] NZCA 360 at [45].

[25] Sentencing Act 2002, s 7(a), (b).

[26] Section 7(e).

[27] Section 7(g).

[28] Section 7(h).

[29] Section 8(d) and (h).

[30] Brookbanks and Simpson, above n 20, at 202.

[31] Nelson v R, above n 23, at [22].

[32] R v Tuia CA312/02, 27 November 2002, at [15].

[33] R v Milford [2008] NZCA 148 at [33]; R v Whiu [2007] NZCA 591 at [30]; and R v Bridges [2003] 1 NZLR 636 (CA) at [40]. In Verdins v R the Victorian Court of Appeal identified six circumstances (which it expressly said were non-exhaustive) where impaired mental functioning may reduce the offender’s moral culpability: Verdins v R, above n 24, at [26].

[34] R v Clarke CA 225/98, 3 September 1998 at 8.

[35] R v Ngati HC Auckland CRI-2006-092-1919, 15 June 2007.

[36] R v Leuta [2001] NZCA 283; [2002] 1 NZLR 215 (CA).

[37] Waterhouse v R CA33/04, 13 May 2004.

[38] R v Beri (1987) 1 NZLR 46 (CA) at [48].

[39] (17 April 2002) 599 NZPD 15593.

[40] See above at [63].

[41] Waipuka v R [2013] NZCA 661.

[42] R v Waipuka [2013] NZHC 221; upheld on appeal in Waipuka v R [2013] NZCA 661.

[43] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[44] Parole Act 2002, s 84(3).

[45] R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA) at [69] to [74].

[46] Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298 at [63]. The issue was not addressed specifically in the Supreme Court: Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[47] Malik v R [2015] NZCA 597 at [26].

[48] Crimes Act 1961, ss 98C, 98D and 128B(1) — crimes involving sexual violation and human trafficking.

[49] Chen v R [2009] NZCA 445; [2010] 2 NZLR 158 (CA).

[50] At [203], [209] and [213].

[51] R v Thompson [1996] 2 NZLR 429 (CA).

[52] R v Rhodes [2009] NZCA 486; Clifton v R [2013] NZCA 85; and Murray v R [2014] NZCA 189.

[53] R v Donnelly [2011] NZCA 433 (50%); R v Leuta, above n 36; (50%); Ikamanu v R [2013] NZCA 510 (50%); and R v Waterhouse, above n 37 (62.5%).

[54] Ross v R [2014] NZCA 272 at [24]; and R v Gordon [2009] NZCA 145 at [49].

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2017/38.html