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Mehrok v R [2021] NZCA 370 (6 August 2021)

Last Updated: 10 August 2021

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA597/2020
[2021] NZCA 370

	BETWEEN	SURENDER SINGH MEHROK Appellant
	AND	THE QUEEN Respondent

Hearing:	15 June 2021
Court:	Brown, Brewer and Davison JJ
Counsel:	R J Stevens and K Hadaway for Appellant E J Hoskin for Respondent
Judgment:	6 August 2021 at 10.30 am

JUDGMENT OF THE COURT

The appeal against sentence and the imposition of a minimum period of imprisonment is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

[1] Mr Mehrok killed a 14-week-old baby who had been left in his care for a short time. He did so by throwing the baby with such great force that “the baby’s skull was shattered like an eggshell”.^[1] The cause of death was blunt force craniocerebral trauma. There were skull fractures and bleeding inside the brain. The brain matter itself was lacerated.
[2] A jury found Mr Mehrok not guilty of the murder of the baby, but guilty of his manslaughter.
[3] On 15 October 2020, Gordon J sentenced Mr Mehrok to seven years, nine months’ imprisonment. The Judge ordered that he serve a minimum period of imprisonment of 50 per cent of that sentence.^[2]
[4] Mr Mehrok now appeals his sentence. He says it is manifestly excessive, and that it is wrong in principle for him to be subject to a minimum period of imprisonment.
[5] Our task is to decide whether there is an error in the sentence imposed on Mr Mehrok such that a different sentence should be imposed.

Grounds of Appeal

[6] There are seven grounds of appeal relating to the sentence. They are set out in Mr Stevens’s written submissions, and suggest that Gordon J:

a) Failed to correctly identify the factual basis for sentencing;

b) Adopted too high a starting point;

Inappropriately uplifted the starting point as a result of Mr Mehrok’s previous convictions;

d) Failed to give sufficient credit for the offer to plead guilty;

e) Failed to give sufficient credit for youth;

f) Failed to give any credit for the steps taken to shorten the proceedings;

g) Failed to give sufficient credit for personal circumstances.

[7] There is a further ground of appeal to the effect that the Judge erred in imposing a minimum period of imprisonment.

Discussion

The factual basis for sentencing

[8] The defence case at trial was that Mr Mehrok killed the baby by throwing him into a bedroom wall during a momentary loss of self-control. The defence placed reliance on the evidence of a five-year-old boy, T, who was in the house at the time.
[9] The Crown’s case was that there were at least two significant blows or impacts to the baby’s head.
[10] Justice Gordon was well aware of the difference between the two cases. It was the subject of submission at sentencing. The Judge said:

[17] However, in the end, I consider it is not necessary to make findings as to exactly what T saw and whether there was one impact or more than one and I do not do so. That is because the Crown and defence medical experts agreed on the amount of force that you must have used to cause the injuries. A defence expert said the cranial injuries were capable of being explained by “a single massive impact”. He said this was “a very great form of abuse with ... extreme violence being applied”. The other defence expert agreed that the injuries resulted from massive force. Other terms used for the level of force were “significant” and “catastrophic”.

[11] However, Gordon J explicitly rejected the defence submission that the fatal injuries to the baby were the result of a momentary loss of self-control:

[19] Ms Hadaway submits that this was a momentary loss of self‑control on your part. I do not accept that. I have already referred to the other non‑fatal injuries which I accept were caused by you at the same time as the fatal injuries. In addition to the throwing, T described you as hitting the baby twice. Nor was this an isolated incident in relation to children in the household. You had assaulted those other children on previous occasions albeit in a much less serious way.

[12] Justice Gordon set out the basis upon which she would sentence:

[21] I therefore proceed with your sentencing on the basis of the following factual findings:

(a) At the least you threw baby Royal;

(b) The force you used to inflict the fatal injuries to him was extreme;

(d) In addition to your conduct causing the fatal injuries, at the same time, you assaulted baby Royal causing other non-fatal injuries that I have already described; and

(e) Your conduct did not result from a momentary and uncharacteristic loss of self-control.

[13] Mr Stevens submits that the Judge was required to determine “the actual factual basis upon which the sentencing should proceed”. We accept that submission, so far as it goes. It is axiomatic that a sentencing Judge must decide the factual basis of the offending to the extent that it establishes the overall criminality of the offending.
[14] In this case, that is what Gordon J did. The Judge decided, for the purposes of sentencing, that it was the extreme use of force against the baby which mattered rather than whether there was one impact or two.
[15] Likewise, having heard the evidence, the Judge was entitled to conclude that this was not a momentary loss of self-control on the part of Mr Mehrok. The Judge gave her reasons and we cannot say that those reasons were not available to her.
[16] Mr Stevens submits that even if the Judge was entitled to find that Mr Mehrok had not momentarily lost self-control, the fatal assault was clearly a brief, spontaneous, single incident of violence. The Judge, at [21] of her sentencing notes,^[3] does not say otherwise. But, there was evidence of bruising and evidence from T which could properly found the Judge’s conclusion at [21(d)]. Mr Mehrok’s violence towards the baby leading up to the fatal throwing had to be taken into account by the Judge in setting the starting point.
[17] This ground of appeal does not succeed.

Was the starting point too high?

[18] Justice Gordon recognised there is no tariff case for manslaughter sentencing. That is because the circumstances of offending vary widely and the culpability of each defendant must be assessed in relation to the specific circumstances.^[4]
[19] In the High Court the Crown submitted a starting point of 10 years’ imprisonment or more was warranted. Ms Hadaway for Mr Mehrok submitted eight years’ imprisonment was an appropriate starting point. Both counsel put forward comparator cases. The Judge said:

[27] The age of a victim is a relevant consideration. The victims in these cases are always vulnerable, but a newborn baby or baby who is entirely reliant on adult carers for survival is particularly vulnerable. Also relevant is the nature of the force used and whether violence arose from a momentary loss of control. Finally, there is a question of a pattern of the application of force to children. This is less concerned with whether there was serious and ongoing abuse prior to death, which is a different category of offending, but whether a defendant habitually used force on a child or children.

[20] Justice Gordon took particular guidance from Woodcock v R^[5] and R v Kereopa^[6] and adopted a starting point of 10 years’ imprisonment. In doing so, the Judge cross‑checked the appropriateness of the sentence against the tariff case for serious violence, Taueki v R.^[7] The Judge put the offending within band three (9–14 years’ imprisonment), at the lower end, and concluded this to be consistent with the starting point of 10 years’ imprisonment adopted.^[8]
[21] Mr Stevens submits that the Judge drew a distinction between violence against babies and violence against “toddlers” and that this was an error.
[22] We accept there is no stark demarcation between cases involving the manslaughter of babies as opposed to cases involving the manslaughter of toddlers. In every case, an assessment must be made of the vulnerability of the victim and the acts of the defendant, including how dangerous the acts were in the circumstances. It might be that some acts of violence are likely to be inherently more dangerous to a fragile baby than a more robust toddler. If so, this will inform the starting point.
[23] Mr Stevens undertook a comprehensive survey of manslaughter cases involving babies or toddlers in an effort to persuade us that the starting point of 10 years for this case was too high. It is often useful to have regard to similar cases to identify broad ranges of sentences imposed by the courts. But for manslaughter such comparisons can only be indicative given the variability of circumstances. The maximum sentence for manslaughter is life imprisonment.^[9] This case is characterised by the extreme use of force on a completely vulnerable child following shortly after the infliction of other much less severe violence. On first principles, a starting point of 10 years is within range. We agree with the Judge that applying the tests in Taueki, and allowing for death resulting from the violence, the offending is within band three and the 10 years starting point is available.
[24] This ground of appeal does not succeed.

Uplift for previous convictions

[25] Mr Mehrok has previous convictions for violence against children. Justice Gordon described the circumstances as follows:

[20] In sentencing you on 6 March 2018,^[10] following your guilty pleas, Judge Mabey QC described the charges and the conduct as follows. There were representative charges alleging offences by you between October 2015 and June 2016. The sentencing remarks state that you would frequently assault the three eldest children of the tenant (Tatiana). The assaults consisted of slapping around the face, back and head. There was a specific charge in relation to one of the children. A member of the public noticed the child running onto the road. That person took action to take the child to a safe place and you were approached and asked if you were the father of the children. You responded by grabbing the youngest child and smacked him around the head with an open hand. Judge Mabey described you as an impatient babysitter, abusing a position of trust and showing no self-discipline when it came to the perceived unruliness of young children. He sentenced you to a period of imprisonment of five months.

[26] Justice Gordon imposed an uplift of three months’ imprisonment, recognising “a higher risk of re-offending and the need for deterrence”.^[11]
[27] Mr Stevens submits it was an error to take these convictions into account on the sentencing. He points out that although the offending preceded the manslaughter, Mr Mehrok was not charged with the offending until after the homicide. He submits they are relatively minor assaults on other children who were in the household and could be characterised as “excessive discipline”. In his submission, the offences do not show a propensity by Mr Mehrok to cause serious harm. Therefore, they should be treated as the absence of a mitigating factor going to previous good character.
[28] We do not accept this submission. The prior offending against other children in the household bears directly on Mr Mehrok’s culpability for his later assault against his 14-week-old victim. For the reasons given by the Judge, an uplift was warranted and that which was awarded by the Judge is modest.

Credit for offering to plead guilty

[29] At the sentencing hearing, Ms Hadaway sought the full discount of 25 per cent for Mr Mehrok’s pre-trial offer to plead guilty to a charge of manslaughter. The Crown’s position was that the offer was not made at the earliest opportunity and that any discount should be small. Justice Gordon said:

[48] Your offer came in February 2017 after receiving further disclosure from the Crown’s medical experts. This evidence was reviewed by your own expert. Ms Hadaway submits the offer was made at the first reasonable opportunity. The medical evidence was available and you had received independent expert advice on that evidence. To complete the broader procedural context, the first trial was due to commence in February 2017. However, the Crown applied for an adjournment to appeal the severance order. The first trial then took place in June 2017.

[49] I do not consider your offer to plead guilty came at the earliest opportunity. It was made on the eve of the first trial. The medical evidence was of lesser significance in circumstances where your use of force against the victim was the only explanation for his death. This contrasts with Jeffries‑Smith v R, cited by Ms Hadaway, where the Court of Appeal accepted the defendant expressed a willingness to plead guilty to manslaughter at an early stage and communicated this to counsel.^[12] Whether due to a misunderstanding or a change in counsel, this offer was not conveyed to the Crown.

...

[51] Your offending occurred in June 2016 and your offer to plead guilty came about seven months later, just prior to the planned start of the first trial. The strength of the Crown case is also relevant.^[13] However, this should not be overstated,^[14] and the Court of Appeal has recently said that there is no inverse relationship between the strength of the Crown case and the extent of a guilty plea discount.^[15] Nevertheless, the Crown case against you was strong; you were the only person who could have caused baby Royal’s death.

[52] In these circumstances, and particularly taking into account the timing of your guilty plea, I have decided a discount of 15 per cent is justified.

[30] Mr Stevens submits:

55 Mr Mehrok made the following offers to plead guilty to a charge of manslaughter:

By letter to the Crown Solicitor dated 7 February 2017;

By letter to the Crown Solicitor dated 13 June 2017;

By letter to the Solicitor-General dated 13 March 2020.

56 The learned High Court Judge made no mention of Mr Mehrok’s offer to plead guilty prior to the second trial. This was made well in advance (in March 2020, when the trial was scheduled to commence in August 2020), although counsel notes that the original offer to plead guilty was never withdrawn.

57 Counsel submits that the correct approach to sentencing would be to consider the offer to plead guilty prior to the second trial, as the High Court Judge was sentencing in relation to those proceedings.

[31] Mr Stevens cites Hessell v R, in which the Supreme Court discussed the discounts available for offers to plead guilty prior to trial. In his submission, Mr Mehrok fulfilled the criteria for a full 25 per cent discount:

52 In Hessell v R the Supreme Court noted that courts give credit for a guilty plea principally to facilitate the effective operation of the criminal justice system. Avoiding the need for a trial saves the costs associated with a defended hearing and reduces the back-log of trials. There are also social utility benefits for witnesses, particularly victims, who are not required to give evidence and may be assisted through the offender’s acknowledgement of responsibility for the offending.

[32] In our view, the discount for an offer to plead guilty to a lesser offence on which the defendant is subsequently found guilty at trial is to be assessed on when it was first made. If the offer is withdrawn, but made again later, then it is the later date which is relevant.
[33] The basis for our view is that the period during which a discount can be obtained by an offer to plead guilty to a charge commences from the laying of the charge. If the offer comes at the first reasonable opportunity after that then the maximum discount is available. If it does not, then a discount less than the maximum will be awarded.
[34] Whether there is more than one trial does not change this analysis.
[35] In this case, as Gordon J recognised, Mr Mehrok made his first offer to plead guilty to manslaughter on the eve of his first scheduled trial. He maintained it thereafter. He is entitled to a discount to reflect the matters Mr Stevens refers to at para 52 of his submissions.^[16] But he is not entitled to the full discount because the offer, manifestly, did not come at the first reasonable opportunity.
[36] This was a case where it was utterly apparent that Mr Mehrok killed the baby unlawfully. The only issue was whether the Crown could prove a murderous intent.
[37] In our view, the 15 per cent discount afforded by the Judge is within the range available to recognise the factors referred to by Mr Stevens, and taking into account that the offer to plead, in the face of a very strong Crown case, was not made at the first reasonable opportunity.
[38] This ground of appeal does not succeed.

Credit for youth

[39] At the time of the offending Mr Mehrok was 19 years old. At sentencing, the Crown’s submission was that no discount for youth was justified because the jury would have taken into account Mr Mehrok’s age in deciding that Mr Mehrok did not appreciate the death of the baby would follow from his actions. We note that Mr Mehrok called Dr David Chaplow as a witness. Dr Chaplow is a psychiatrist and he gave expert evidence that adolescents in stressful situations can react without a deep appreciation of the consequences.
[40] Justice Gordon (correctly, in our view) did not accept the Crown’s submission. The Judge considered Ms Hadaway’s submission that a discount of 15 per cent for youth should be afforded Mr Mehrok. The Judge said:

[41] The Court of Appeal has addressed the impact of youth on sentencing in R v Churchward.^[17] A number of considerations were identified in that decision. The most relevant are impulsiveness and your capacity for rehabilitation. While I have found your actions were not a momentary loss of self-control, your willingness to resort to violence against much younger and vulnerable children and babies would suggest a level of impulsiveness. This is associated with youth. As to rehabilitation, the pre-sentence report writer emphasises limited progress in this regard and that is unfortunate. On the other hand, I am told you have worked well at tasks assigned to you while in prison. You may well have a greater capacity for rehabilitation but there is insufficient evidence to demonstrate that.

[42] I consider a discount of five per cent appropriately recognises youth as a mitigating factor.

[41] Mr Stevens submits that because Mr Mehrok has been in custody on remand he has been unable to access rehabilitative programmes and treatment. He submits the Judge should not have reduced Mr Mehrok’s discount for youth because he has not completed rehabilitation when he has had limited opportunity to demonstrate that he can do so. Instead, the Judge should have had regard to Mr Mehrok’s young age at the time of the offending as an indicator he may have a greater capacity for rehabilitation than older offenders. Mr Stevens accepts there is no fixed discount for youth but submits that discounts from 10 to 17 per cent are not uncommon for offenders aged 18 or 19 years. Mr Stevens maintains the submission that an appropriate discount for Mr Mehrok’s youth is 15 per cent.
[42] We do not accept this submission. A sentencing discount for youth is not given automatically but must be assessed in relation to the facts of the particular offending. It is widely recognised that young people, particularly young males, can not only be risk takers but also impulsive. With this can go a limited or absent appreciation of the likely consequences of their actions.
[43] In this case, the Judge had held, as the trial Judge, that the offending against the baby was not the result of a momentary loss of self-control. The baby had other injuries and Mr Mehrok had a history of assaulting other children in the household. Further, the degree of force Mr Mehrok applied to the baby was so extreme as to make it inevitable that the baby would be severely injured by it. Discounts for youth often go hand in hand with discounts for remorse because remorse goes hand in hand with rehabilitation. It was accepted by Ms Hadaway at sentencing that Mr Mehrok was not entitled to a discount for remorse.
[44] Overall, we accept that a discount of five per cent was within the range available to the Judge given her acceptance of the suggestion of a level of impulsiveness.
[45] This ground of appeal does not succeed.

Credit for shortening the proceedings

[46] The Judge addressed this issue as follows:

[46] Ms Hadaway also submits that you should receive a discount for steps taken to shorten the proceedings or reduce costs. She says admissions made by you as to the cause of baby Royal’s death avoided the Crown calling 11 witnesses at the trial. I have decided against a discount on this ground for two reasons. First, you will receive a distinct discount for your offer to plead guilty to manslaughter, which I will address shortly, and there is a risk of double counting on that point. Your admission that you caused the victim’s death was the basis of that offer. Second, Ms Hadaway acknowledges that your admission permitted the severance of the other violence charges. Any benefits arising from shortening the proceedings or reducing their cost are outweighed by the advantage to you of that outcome.

(Footnote omitted.)

[47] Mr Stevens points out that s 9(2)(fa) of the Sentencing Act 2002 provides that the Court must take into account that the offender has taken steps to shorten the proceedings and reduce their cost.
[48] Mr Stevens submits the Judge erred in her analysis:

71 It is respectfully submitted that the issue of whether the appellant should receive a discount for his offer to plead guilty to a charge of manslaughter and, if so, the amount of that discount, is completely unrelated to and distinct from the issue of whether the appellant should be given a discount for shortening the proceedings by admitting culpable homicide.

72 It is submitted that the Judge was also in error in deciding that severance was a “benefit” to the appellant that should be weighed against the shortening of the trial by the appellant’s admission that he was responsible for the death of Baby Royal. Both Palmer J^[18] and this Court^[19] decided that severance was necessary to ensure a fair trial.

73 In addition, the Judge failed to take into account the fact that the appellant instructed counsel to sign a formal admissions document pursuant to s 9 of the Evidence Act 2006 which had the effect of dispensing with at least 11 witnesses needing to be called at the trial. Given the mandatory wording of s 9(2)(fa) of the Act, the appellant should have been given a discount for his admission in relation to culpable homicide, and the admissions in the s 9 document.

[49] We accept that s 9(2)(fa) of the Sentencing Act requires a court to take into account as a mitigating factor steps taken by an offender to shorten the proceedings or reduce their cost. That is subject to the qualification: “to the extent that they are applicable in the case”.
[50] Accordingly, there is no automatic discount. Whether a discount is given is a matter for evaluation by the sentencing Judge in the context of the case.
[51] In most cases, counsel will want to focus the jury on the issues which matter. Counsel will not want to distract or irritate the jury by requiring the Crown to call evidence on matters which are plainly not in dispute. Admitting evidence in this category by consent will not usually attract a discrete discount.
[52] Neither will more than one discount be usually given for a single concession if an incidental effect of the concession is to shorten the proceeding.
[53] We do not accept that the Judge was in error to hold that Mr Mehrok’s admission that he was responsible for the unlawful killing of the baby should be met with a discount for that admission but not a further discount for the resulting shortening of the trial. The latter was incidental.
[54] Similarly, the admission meant that charges of assaulting other children at the address in the period leading up to the manslaughter were severed. That was to Mr Mehrok’s advantage. The trial was shortened as a result, but again that was incidental.
[55] The Judge was entitled to decide that in those circumstances Mr Mehrok’s overall sentence should not be reduced because the trial would have been longer if he had not taken the steps he did.
[56] This ground of appeal does not succeed.

Credit for personal circumstances

[57] The Judge said:

[43] Ms Hadaway submits a discount is available to reflect the additional difficulties you face in serving a term of imprisonment. You have little family support and are a considerable distance from your home in India. Following your father’s death, your family’s business has failed. In Sami, the Court of Appeal dealt with a defendant in circumstances similar to yours.^[20] She was convicted of the manslaughter of a very young victim and was sentenced to a term of imprisonment. Her family was in another country, though she did have support in New Zealand. English was not her first language and she was very young. While serving a term of imprisonment, she was also separated from a very young child. The Court of Appeal considered the case involved “a distinctive combination of factors that merited recognition”^[21] and added a discount of a 10 per cent for this factor.

[58] The Judge allowed an overall discount for personal factors of five per cent as being appropriate for Mr Mehrok.
[59] Mr Stevens submits that Mr Mehrok’s case is sufficiently similar to that of the defendant in Sami that a discount greater than five per cent should have been given. Mr Stevens submitted that a combined discount of 10 per cent would properly include this factor and the steps Mr Mehrok took to shorten the proceedings.
[60] We do not accept this submission. In our view there was no error in the Judge’s approach. The Judge clearly considered Mr Mehrok’s position against that of the appellant in Sami. The discount awarded was within the range available.
[61] This ground of appeal does not succeed.

Appeal against sentence — outcome

[62] We will dismiss the appeal against sentence. But there is a point we wish to emphasise. Sentencing is not a science. Nor is it a “tick the boxes for uplifts or discounts” exercise. It is an evaluative process by the sentencing Judge who seeks to identify, and give appropriate weight to, the factors in the particular case which together describe the culpability of the offender. There is room for Judges reasonably to differ in their evaluation of relevant factors and hence the levels of discounts available. That is why an end sentence will be considered manifestly excessive only if it is outside the range of sentences which can properly respond to the overall culpability of the offender.
[63] Accordingly, we have stood back and considered whether the end sentence of seven years, nine months’ imprisonment, on a totality basis, is outside the range of sentences which can properly respond to Mr Mehrok’s culpability. We have decided that it is not.

Should there be a minimum period of imprisonment?

[64] Justice Gordon carefully considered whether the circumstances set out in s 86 of the Sentencing Act apply to Mr Mehrok such that a minimum period of imprisonment should be imposed. The Judge said:

[57] The Crown submits an MPI of 50 to 60 per cent of the sentence imposed is appropriate in this case. On your behalf, Ms Hadaway submits an MPI is not justified as it would serve no useful purpose. She notes you have served nearly four years, five months in custody. She also notes that once you have served your sentence, or if you are granted parole, you will immediately be transferred to Police custody. The Immigration Service has indicated that you will be the subject of an application for detention in custody pending an available flight to India. Ms Hadaway submits there is no prospect of your release into the community and so protection of the community is not a relevant factor in your case.

[58] I accept that latter submission. However, it is only one of the four factors for consideration under s 86 and, as I have said, there are three others which are relevant in terms of s 9A. In my view, a minimum term of imprisonment is required here and for these reasons. A vulnerable child has tragically died as a consequence of your actions. Release after only serving two years, seven months’ imprisonment (one third of your sentence) would be insufficient to hold you accountable for the harm you have caused, appropriately denounce your conduct and deter similar offending by you and others. This also reflects the vulnerability of baby Royal, the seriousness of your breach of trust and that the consequences of your actions was his death.

[65] It was on this basis that the Judge ordered Mr Mehrok to serve a minimum term of 50 per cent of the sentence.
[66] Mr Stevens submits:

82 The practical reality is that by the time Mr Mehrok appeared before the High Court Judge for sentencing, he had spent nearly four years and five months in custody. There was no prospect of him being released after only serving two years, seven months’ imprisonment (one third of his sentence).

83 In addition, when one considers the actual effect of the MPI on Mr Mehrok, there is none, and therefore counsel submits that it cannot achieve deterrence or denunciation. Mr Mehrok had already, at the time of sentencing, effectively served longer than 50 per cent of his sentence of seven years and nine months’ imprisonment. It is submitted it is wrong in principle to impose an MPI where there is no practical effect.

[67] We do not accept Mr Stevens’s submission.
[68] First, the imposition of a minimum period of imprisonment is not solely a measure aimed at the particular offender. It is a statement of principle, and theoretically a deterrence, that applies to everyone.
[69] Further, a minimum period of imprisonment is just what it says. It does not dictate how much of a person’s sentence will be spent in custody. That is a matter for the Parole Board. And the Parole Board might well be influenced by the reasons given by the sentencing Court for imposing, or not imposing, a minimum period of imprisonment.

Result