R v Davis HC Whangarei CRI-2009-029-990 [2011] NZHC 812 (14 July 2011)

Last Updated: 4 August 2011

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

_{CRI-2009-029-990}

THE QUEEN

v

NOREFJELL DEANA FAY DAVIS

Hearing: 14 July 2011

(Heard at Auckland)

Counsel: M Smith for the Crown

B Sellars for Ms Davis

Judgment: 14 July 2011

_{SENTENCE OF WOODHOUSE J}

Solicitors:

Mr M Smith, Marsden Woods Inskip & Smith, Office of the Crown Solicitor, Whangarei

Ms B Sellars, Barristers, Auckland

R V DAVIS HC WHA CRI-2009-029-990 14 July 2011

[1] Ms Davis, you may remain seated until I come to impose the formal sentence.

Offences

[2] You are to be sentenced for the manslaughter and the earlier ill-treatment of your daughter, Jacqui Petersen-Davis. The maximum penalty for manslaughter is life imprisonment. The maximum penalty for wilful ill-treatment, which is an offence against s 195 of the Crimes Act, is 5 years imprisonment.

[3] As I am sure you will now be well aware, there will be a sentence of imprisonment, and a lengthy sentence of imprisonment. It is necessary to outline the background to this in some detail, and other relevant matters, in order to explain the sentence that I will impose. And it is in order to explain it to you, obviously, but also in order to explain it to your wider family, all of those connected with these events and to the community as a whole.

[4] You were charged that you murdered your daughter, on or about 7 August

2009. She was then aged 2 years and 4 months. The ill-treatment charge was that, between 1 January 2009 and 6 August 2009, when Jacqui was in your custody, you wilfully ill-treated her in a manner likely to cause her actual bodily harm.

[5] Following a trial of 11 days you were found guilty by the jury of manslaughter and of the charge of ill-treatment.

Information for sentencing

[6] I will outline the information available to me for the purposes of sentencing. As the Judge presiding at the trial I heard all the evidence. I have received careful written submissions on sentence from your counsel, Ms Sellars, and from Mr Smith on behalf of the Crown. This morning I have heard further oral submissions from both counsel on central issues. I have received a victim impact statement from Jade Petersen, Jacqui’s father and your former partner. I have a victim impact statement written on behalf of your daughter, L, aged 12 who is Jacqui’s half-sister, and your

son, C, aged 2 who is Jacqui’s full brother. I have a pre-sentence report completed on 5 July 2011. And I have a detailed report from Ms Anne Huddleston, a registered clinical psychologist, who provided a report at my request pursuant to s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

[7] Ms Davis, I have taken account of all relevant information although I do not intend to seek to summarise all of it.

The background facts

[8] I will outline the facts, including relevant background facts.

[9] You met Jade Petersen, Jacqui’s father, in about 2005. You were almost 30. He was 18. You already had one child, L, born in February 1999. Your relationship with Mr Petersen continued until Jacqui’s death in 2009. In the course of this relationship, from an early stage, you were subjected to physical and mental abuse by Mr Petersen. And, by his own admission, he was and remained immature and essentially interested only in self-gratification. And I emphasise that the comments I am making now come from the evidence I heard. The two of you became heavy users of methamphetamine.

[10] Jacqui was born on 21 March 2007. During the pregnancy you continued to consume methamphetamine – and I am sure it harmed Jacqui. When Jacqui was about 3 months old your siblings stepped in and removed Jacqui and L from your care. This was, in broad terms, because of their concern about your conduct – about your behaviour – and about Mr Petersen’s behaviour, including his behaviour with Jacqui. I do commend the efforts made by your siblings.

[11] Your daughters L and Jacqui were not in your care again until early 2009. As a result, Jacqui was not in your care from the age of about 3 months until she was about 21 months old. In the intervening period you and Mr Petersen had another child, your son C, who was born in August 2008.

[12] In August 2009 you, Mr Petersen and the three children were living in a rented house in Kaitaia. On the night of 7 August 2009 Jacqui sustained the injuries from which she died. And she died the following day at Starship Hospital in Auckland.

[13] On the afternoon of 8 August you were interviewed by a police officer in Auckland. In the course of that interview you admitted serious assaults on Jacqui the previous evening in your home in Kaitaia. At the trial you denied that you had assaulted Jacqui and said that you had been responsible in order to protect Mr Petersen. Your defence was that Mr Petersen had inflicted the fatal injuries. Ms Davis, it is clear – and it is clear beyond reasonable argument – that the jury rejected your defence and accepted that your admissions during the Police interview were truthful. That is accepted by Ms Sellars on your behalf in relation to your admissions about the assault on the evening of 7 August.

[14] The assault on Jacqui occurred after the evening meal. This is part of what you said in that Police interview – and I am quoting:

She had her meal ... then she played up when I told her to go to bed. I told her to pick up her toys. She didn’t pick up her toys, so I just got up and booted her and she landed and I told her to get up again, and I booted her, and she landed and I booted her pretty much to her room.

[15] You said that on one occasion you kicked her so hard she was lifted into the air. You admitted punching her more than four times. On occasions she banged her head on the floor. On occasions when she fell you pulled her up with her clothing and assaulted her again. You threw her onto her bed and you left her there.

[16] You said that you woke at about 1:00 o’clock the following morning and found that Jacqui was having trouble breathing. Ms Davis, I accept that at that stage you had genuine concern for your daughter, although there was some considerable delay before you took her to the hospital in Kaitaia. In assessing this sentence I do not hold that delay in a significant way against you, but there certainly was delay. You got to the hospital a little after 4:00 am. When spoken to by the doctor you said that Jacqui’s injuries occurred when she fell from a stationary train at the local park where you had gone with the children in the afternoon. You flew by helicopter with

Jacqui to Starship Hospital in Auckland at around 8:00 am that morning. When spoken to by doctors at Starship Hospital you continued to say that Jacqui’s injuries were caused by her fall in the park. And on any version of the events – your version or any other version – that was plainly false.

[17] Jacqui died at around 11:00 am that morning. Post-mortem examinations revealed a number of acute injuries – that is to say, injuries that had been inflicted in the preceding hours before her death. The post-mortem examinations also revealed a number of chronic injuries – that is to say, older injuries which were healing.

_{[18] The acute injuries were as follows – and I do need to record these:}

A fracture to the pelvis causing bleeding into the abdomen. Fractures of three ribs.

Severe internal injuries to the abdomen being a lacerated liver, bruised and

_{lacerated bowel, and bleeding into the abdomen.}

Bruising and abrasions to the head and face and lacerations behind both ears. Extensive scalp bruising.

Subdural bleeding with a swollen and bruised brain caused by an impact to

_{the back of the head together with optic nerve damage.}

_{And there were multiple abrasions to upper limbs.}

[19] The direct cause of death was a combination of injuries to, and bleeding in, the brain and in the abdomen.

[20] The older injuries to Jacqui were as follows:

A fractured collarbone.

A fractured upper arm bone. A fractured rib.

A fractured bone in a toe.

Three other fractures in bones in the toe.

A healing tear to the fraenulum in the mouth and healing lacerations of the upper lip.

A healing subdural haematoma or bleeding.

A healing fracture to the left pelvis, being the pelvis which was fractured again on the evening of 7 August.

_{And signs of healing injuries to the bowel.}

[21] The expert medical evidence on the age of the older injuries, including evidence from a pathologist called on your behalf, was that these older injuries would have been caused over an uncertain period calculated back from the date of the fatal injuries ranging between a matter of days and a number of months. It is these older injuries which were the basis for the charge of ill-treatment. The pathologist called for the Crown, Dr Stables, was of the opinion that there were probably three separate episodes of injury, including the fatal injuries. Dr Ferris, called on your behalf, was of the opinion that there may have been more than three episodes of injury – that is to say, that there may have been more than two episodes prior to the fatal assault on 7 August.

[22] In the Police interview you were asked about some of the older injuries. You said that the injuries would have been caused by you. You admitted, in effect, serious assaults on Jacqui in the past. From this the Crown has submitted that the

jury must have concluded that your admissions in the interview were truthful and that you had caused the older injuries and that led to their guilty verdict for wilful ill- treatment.

[23] On your behalf, Ms Davis, Ms Sellars has submitted that it is open to me, on all of the evidence adduced at the trial, to sentence you on the basis that you were not solely responsible for all of the injuries – the older injuries – and that some of them were caused by Mr Petersen. There was direct evidence of an assault by you on Jacqui in early 2009. One of the witnesses said that you punched Jacqui in the head. Ms Sellars submitted that this evidence was sufficient to found the guilty verdict on the count of wilful ill-treatment. I note that this was also an assault which you denied in terms of the nature of it.

[24] I am satisfied, from all of the evidence, and including your evidence at the trial as well as what was said in the Police interview, and having regard to the way in which the cases were put for the Crown and for you, that the jury must have concluded that you were responsible for the older injuries or a significant number of them. I am also satisfied that they could have concluded that Mr Petersen may also have ill-treated Jacqui without that conclusion being inconsistent with what I have said about your actions.

[25] I am satisfied from all of the evidence, and from what Mr Petersen said about himself, that he was a totally inadequate parent and a totally inadequate partner to you. Some of his own evidence, as well as the evidence of others, also indicates that he had no sense of responsibility for Jacqui. And there was uncontradicted evidence of an assault by him on Jacqui or in fact more than one assault. Some of this does bear on the final sentence to be imposed on you – some of what I have just referred to. But I am satisfied that the evidence of Mr Petersen’s assaulting Jacqui does not provide grounds for concluding that you were not responsible for most, at least, of the older injuries.

Starting point

[26] I need to fix what is called a starting point in relation to the sentence for manslaughter. This is an assessment of the gravity of the offence, before taking account of the other offence and then any personal factors which might increase or decrease the end sentence. I am dealing with the gravity of your offending at this point.

[27] In fixing the starting point, and the sentence overall, I have had regard to the relevant purposes and principles of sentencing as set out in the Sentencing Act 2002. I have also had regard to the provisions of ss 9 and 9A of that Act relating to aggravating and mitigating factors and the fact that this is a case involving violence against a child under the age of 14 years, and in this case a child little over 2 years old.

[28] The Crown submits that the starting point for your offending, with an uplift for aggravating features and for the conviction for ill-treatment, should be 12 years imprisonment. The Crown also submits that the sentence for wilful ill-treatment should be concurrent because there does need to be a separate sentence.

[29] Ms Sellars submits that the starting point, with an uplift for the totality of the offending, should be in the range of 10 years imprisonment. Ms Sellars added – and I quote: “or less depending upon the Court’s view of the facts applicable against Ms Davis”. Ms Sellars’ added submission was made on the basis I have earlier outlined relating to the wilful ill-treatment charge. And, of course, in essence I have not agreed with the submission Ms Sellars made.

[30] Counsel for the Crown and for you referred me to a number of cases, and I have looked at some others. There is no scale of sentences for manslaughter or, more specifically, for cases involving serious violence against children from which death results. This is because the circumstances from one case to another vary so much. As the Court of Appeal noted in a case called Leuta,1 the best guidance for

_{sentences in cases involving manslaughter of children resulting from violence is to}

1 R v Leuta [2002] 1 NZLR 215 (CA) at [59].

be found in earlier sentencing decisions in broadly similar cases. I will note the names of the cases I was referred to, without going into the details of these cases. They are, in chronological order: Witika,2 Tipene,3 Leuta,4 Rapira,5 Ngati6 and Woodcock.7 Witika, referred to by the Crown, is not of assistance. That was a case at the most serious end of the scale and I apprehend the case was referred to by way of

contrast more than anything else. Rapira is also not of assistance on the central question of a starting point. A common feature of Tipene, Ngati and Woodcock, of relevance to the sentence I need to impose on you, is that in those cases there was earlier mistreatment before the assault leading to the death. But those cases, notwithstanding those broad common features, also illustrate the great variation between the facts of each case. These cases also refer to starting points, but at least in some of them this is the appropriate sentence for the totality of the offending itself including the earlier mistreatment rather than looking at the manslaughter in isolation. Features present in at least some of those other cases, and absent in yours, were: the use of weapons; assaults over a prolonged period of time; and a degree of premeditation.

[31] As I have already indicated, the starting point of 12 years submitted by the Crown and 10 years submitted by Ms Sellars takes account of the totality of the offending, including the conviction for wilful ill-treatment. In assessing the gravity of your actions on the night of 7 August it is relevant that this was not the first occasion on which you assaulted your daughter. On the other hand, there is need to avoid double counting by taking this into account in assessing the gravity of the offence of manslaughter and then applying a further uplift for the other offence.

[32] The significant aggravating factors of the manslaughter in this case, Ms

_{Davis, are these:}

This was not an isolated assault by you on your daughter. And you do

_{acknowledge that as far as it goes.}

2 _{R v Witika [1993] 2 NZLR 424 (CA).}

3 _{R v Tipene [2000] NZCA 358; [2001] 2 NZLR 577; (2000) 18 CRNZ 311 (CA).}

4_{R v Leuta, [2002] 1 NZLR 215 (CA).}

5 _{R v Rapira [2003] NZCA 217; [2003] 3 NZLR 794; (2003) 20 CRNZ 396.}

6 _{R v Ngati HC Auckland, CRI-2006-092-1919, 15 June 2007, Lang J.}

7 R v Woodcock [2010] NZCA 489; CA733/2009, 28 October 2010.

There was serious violence involved in the kicks and blows you inflicted on your daughter. She must have suffered dreadfully.

There was callousness in your treatment of her. She was very vulnerable.

You abused a position of utmost trust – that of a parent to a very young child.

Your culpability was compounded by your lies to the doctors in Kaitaia and then at Starship Hospital as to the cause of the injuries.

[33] Ms Davis, I do not intend to isolate what might be called a true starting point for the manslaughter. Rather I will fix an overall starting point for all of the offending. This is also appropriate because I intend to impose a concurrent sentence for the wilful ill-treatment. And I agree with the Crown submission in that regard. Approaching the matter in this way I also have regard to the nature of the assaults that must have been inflicted on Jacqui to cause the older injuries and the suffering that these must have caused for her.

[34] Having regard to all of the matters that I have outlined so far from the beginning of my comments, I consider that the starting point for the totality of the offending should be 10 years.

Personal aggravating factors

[35] There are no personal factors which should increase that sentence.

Personal mitigating factors

[36] I now come to personal factors which might mitigate or reduce the sentence.

[37] Ms Sellars has submitted that there are a number of personal factors that should be taken into account in your favour to reduce the length of the sentence that would otherwise be imposed. I will outline these, and other matters of relevance.

[38] I am satisfied that you were ill-equipped to take custody of Jacqui in January

2009. This was for various reasons, some of which are probably quite complex. I am satisfied that you had great difficulty in bonding with Jacqui. This does not remotely excuse your conduct, but it explains it up to a point. This difficulty was substantially compounded by what I can only describe as a disastrous and harmful relationship with Mr Petersen. And I need to observe here that Mr Petersen is not on trial – but I do need to refer to these matters – and I have referred to some earlier, and – I repeat – all of which come from the evidence including evidence from Mr Petersen himself. I just go back again and repeat: this difficulty in your bonding with Jacqui was substantially compounded by what I can only describe as a disastrous and harmful relationship with Mr Petersen.

[39] However it might be described, you had a fatal dependency on him and persisted in the relationship. As I have indicated already, he provided no support to you of a practical or of an emotional nature, either for your own benefit or for the benefit of the children. His conduct, some of which he almost seemed to be proud of, was likely to have reinforced whatever feelings of inadequacy you may have had, and some of which are noted in the psychologist’s report. This is most graphically illustrated by Mr Petersen’s own evidence of his behaviour immediately before your fatal assault on Jacqui. He said that he had been drinking, in effect, solidly over three days up to 7 August. On 7 August, in the afternoon or early evening, he also consumed methamphetamine, went to see a woman with whom he was developing a new relationship, and then came home and expected to be fed by you.

[40] This can also be contrasted with the obvious care you took in trying to manage the home and look after all three children. It is clear from the evidence that you took care and pride in trying to run a good home and trying to be a mother to all three of your children. You did not, for example, neglect medical treatment for Jacqui on other occasions. And there is other evidence of relevance.

[41] Ms Huddleston, the clinical psychologist, conducted two interviews of you, totalling five hours. And she obtained a variety of other information. This included an earlier psychological assessment and a number of psychiatric assessments, including one conducted in September 2009 – not long after Jacqui died. The 2009 report, as recorded by Ms Huddleston, records that you said, in essence, that you had made a scape-goat out of Jacqui and blamed her for the difficulties that you and the family were experiencing. Ms Huddleston, following a detailed survey of a range of matters, expressed a conclusion that you were – and I quote – “likely to have felt frustrated, angry and worthless and could not cope or respond appropriately to the development needs of a 2 year old child”. Ms Huddleston expressed the opinion that

– and I quote again – “a confluence of factors contributed to [your] offending including [your] emotional immaturity, low self-esteem and a desire to please [Mr Petersen] at all costs”.

[42] Ms Sellars submits that you have shown true remorse. This is also noted by the psychologist although I am not sure that the psychologist is referring to the sort of remorse that Courts talk about when sentencing. This is another area of complexity in relation to your personality. You continue to deny assaulting Jacqui in the ways the jury clearly concluded that you did. In particular you deny the assault on the evening of 7 August. On the other hand I do accept that you are remorseful about Jacqui’s death. And this will be with you for the rest of your life. Against that, Ms Davis, I am not persuaded that you are with complete remorse in all respects.

[43] I am satisfied that you had no adequate appreciation of the consequences of your action. And obviously the jury was satisfied on this, otherwise they would have convicted you of murder. Ms Sellars has noted, and I accept, that you never sought bail following your arrest in August 2009 because of the sense of responsibility she says you feel for what happened, notwithstanding your continued denials.

[44] Your conduct in custody on remand has been good and this has been over a period now of almost 2 years. You have made serious efforts to try and rebuild your life notwithstanding what you have now done to it and to your surviving children, and to Jacqui’s father – and you must recognise that – and to your wider family. You have one previous conviction but this is of no consequence at all. It is, essentially, a

trivial matter. I am satisfied that there is no material risk of any further offending. And I do note that your earlier life, before you met Mr Petersen, in a broad measure was a constructive life and from a supportive family background.

[45] Having referred to all of these matters of a personal nature it is essential not to lose sight of what you have done. There is a limit to the extent to which these personal matters can be taken into account to reduce the sentence. In this regard the Court of Appeal said in the Leuta8 case – and I am quoting at paragraph [80]:

Of course child homicides often occur in complex relational and domestic situations. They bear upon the offender frequently to evoke sympathy and mitigate the offending. They are to be taken into account for sentencing. But they should not cloud the essential fact that the violent, cruel and brutal treatment of a defenceless and vulnerable child, to whom there are duties of trust and responsibility, constitutes conduct of grave criminality and, where death ensues, the sentencing task is in respect of a very serious crime.

[46] These observations have been more recently repeated by the Court of Appeal in a case called Pene.9

[47] Having regard to the personal factors that I have outlined, and the observations I have just noted, I consider that the overall starting point of 10 years should be reduced – but it cannot be reduced by more than 1 ½ years. And that produces an end sentence of 8 years and 6 months.

Minimum period of imprisonment

[48] Finally, there is a question of a minimum period of imprisonment.

[49] Because you will be sentenced to imprisonment for more than 2 years I can impose a minimum period of imprisonment that is longer than the period that would otherwise be applicable under the Parole Act 2002. I can do so if I am satisfied that

_{the Parole Act period is insufficient for one or more of a number of purposes.}

8 _{R v Leuta [2002] 1 NZLR 215.}

9 R v Pene [2010] NZCA 387; CA265/2010, 20 August 2010, at [16].

[50] I am satisfied that the period prescribed by the Parole Act would be insufficient to hold you accountable and to denounce your conduct. For this reason I will impose a minimum sentence of half of the total of the sentence.

Formal sentence

[51] Ms Davis, you should now stand.

[52] For manslaughter you are sentenced to imprisonment for 8 years 6 months with a minimum period of imprisonment of 4 years and 3 months.

[53] For the offence of wilful ill-treatment you are sentenced to imprisonment for

2 years. This sentence will be served concurrently with the other sentence, so the total is 8 years 6 months.

_{[54] You should now stand down.}

Peter Woodhouse J