R v Loffley [2013] NZHC 201 (14 February 2013)

Last Updated: 25 February 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-004-022888 [2013] NZHC 201

THE QUEEN

v

JOEL SIMON RIHARI LOFFLEY

Hearing: 14 February 2013

Counsel: P K Hamlin & N R Webby for Crown

R P Chambers for Accused

Sentence: 14 February 2013

_{SENTENCE OF KEANE J}

Solicitors:

Crown Solicitor, Auckland

Counsel:

_{R P Chambers, Auckland}

R V JOEL SIMON RIHARI LOFFLEY HC AK CRI 2011-004-022888 [14 February 2013]

[1] Joel Loffley, you appear for sentence following your trial for the murder on

14 November 2011 of JJ Ruhe-Lawrence, aged a little over two and a half years, the young son of your then partner Josephine Lawrence in whose Orakei state unit you were then living.

[2] On 14 November 2011 JJ died suddenly and shockingly, as a result of injuries to his liver and pancreas. They were split in two. The medical evidence was that those injuries, especially the splitting of the pancreas, were highly unusual even in young children. They could not have resulted from any usual accident. They called for quite extraordinary force.

[3] The medical evidence was also that those injuries were so severe that they made JJ’s death inevitable and that, within the short time he had to live, their effect on him would have been all too obvious. He would have been completely reduced and in excruciating pain.

[4] The Crown's case against you at your trial was that you caused JJ's death by some deliberately violent act, a punch, a kick or a stomp, involving extraordinary force. The Crown had no eye witness and you denied any such violence. The Crown relied on the cumulative effect of a wider body of evidence.

[5] The Crown's case was that you assaulted JJ in the half hour or so that he was in your care, after his mother, Ms Lawrence, left the house at 9am to arrange an overdraft advance on her benefit. That is why, the Crown contended, when she returned, she found you showering JJ and JJ crying and crouching and apparently sleepy in the shower; and that is why you then, highly unusually at that hour of the morning, put JJ back to bed.

[6] JJ's state when examined by ambulance officers later in the morning, when he was already dead, the Crown contended, was consistent on the medical evidence with JJ having suffered the fatal assault while he was in your care. The Crown relied as well on the pattern of injuries that JJ was found to have suffered in the five months that you and Ms Lawrence had been living together.

[7] In those five months JJ suffered two broken arms, one before he went to Tauranga to be cared for by Ms Lawrence's family there, and one after; and each time he was in your immediate care. He suffered also extensive bruises, up to the date of his death which, on the medical evidence were unusual in number and character and consistent with abuse. The Crown's case was that you were responsible for these also.

[8] More generally, the Crown relied on the evidence of Ms Lawrence, JJ's mother, that you were violent to her, as you partly admitted in your police interviews and intercepted telephone conversations with her later. It relied on the fact that you admitted, when interviewed, also being violent to earlier partners.

[9] The Crown relied on your admission, when interviewed, that you had at least threatened to kick JJ in the bottom and that to discipline two of your own sons, one aged five or six, the other two or three, you had kicked both of them in the bottom. It relied on the way JJ was seen to be when with you. The Crown's case was that JJ was frightened.

[10] Finally, the Crown relied on evidence as to what happened at JJ's tangi and afterwards between you and Ms Lawrence, and the intercepted telephone conversations between you in which you had to tailor your story to respond to the post mortem findings which were inconsistent with your account until then.

[11] At trial you elected, as was your right, not to give evidence. You had voluntarily undergone two interviews with the police recorded on videotape and, as your counsel said on your behalf in advancing your defence, you relied on what you then said to the police.

[12] In those interviews, you accepted that you were violent to your former partners and Ms Lawrence and that you had disciplined two of your sons forcefully. You denied emphatically any violence to JJ, let alone any on 14 November of the severity that resulted in his death.

[13] On 14 November, the day that JJ died, you said, JJ did suffer an accidental injury while in your care. You were making the bed and JJ was bouncing on it. JJ fell off and suffered an injury below his chin, and perhaps was dazed. But that was accidental, and it was not severe.

[14] In that fall, you also said, JJ soiled his nappy, so you showered and changed him just as Ms Lawrence arrived home. You accepted that JJ might well have been upset and distressed. But, you said, JJ was not obviously injured in any concerning way when you put him to bed for a morning sleep and shortly after you left the house with your brother.

[15] Your case was, your counsel told the jury, that JJ must have suffered his fatal injuries while you and your brother were absent from the house and in that you relied finally on the evidence of your brother's partner, who remained in the house with Ms Lawrence and the children.

[16] Your brother's partner's evidence was that, while the two brothers were out, she heard the door to JJ's bedroom, which was next to yours, open and then shut perhaps two minutes later. It was your case that someone entered JJ's bedroom and that this was when he was injured fatally.

[17] The likelihood was, your case was, that it was Ms Lawrence who entered JJ's bedroom and inflicted the fatal injuries. You relied on the fact that she was angry earlier in the morning and that your brother and his partner had noticed, after JJ had died, that she had shown no sign of grief. On your case, quite the contrary.

[18] Ultimately, your case was, the only evidence that counted was as to what happened that morning. The Crown's wider evidence was speculative. You continue, your pre-sentence report says, and your counsel has confirmed, to deny the offence. I imagine you continue to attribute JJ's death to Ms Lawrence. You accept as you must, however, that you are to be sentenced according to the verdict of the jury.

Victim impact statements

[19] Ms Lawrence, in her victim impact statement, says that she blames herself for staying with you, instead of keeping JJ safe. She holds herself responsible for depriving JJ's father, James Ruhe, of his only son. She describes her life as now

'broken'. JJ, she says, was everything to her. She misses talking to him, and seeing him, and playing with him. She grieves her inability to see him grow.

[20] James Ruhe, JJ's father, as he says in his victim impact statement, has grieved JJ's loss just as profoundly. JJ, he says, is the first person he thinks of when he wakes and the last he thinks of before he sleeps. It hurts him to know that he could not protect JJ from you. Losing JJ, he says, has destroyed him emotionally.

[21] I have, as well, statements from JJ's maternal grandmother, his great aunt and three aunts, all of whom had been very concerned about him in the five months before his death. His great aunt in Tauranga alerted Children, Young Persons and Their Families Service, after you and Ms Lawrence collected him and took him back to Auckland. Two of JJ's aunts have read their statements today. Their grief was all too real.

Issues on sentence

[22] Under our law, you must be imprisoned for life unless the circumstances of your offence or your own circumstances make that manifestly unjust.1 Your counsel confirms that this sentence, the presumptive sentence, is not one that you can contest. There is nothing that would make it manifestly unjust and I agree.

[23] Life imprisonment, the sentence I must impose on you, is imprisonment for life. You must remain in prison throughout your life, unless and until and only to the extent that, the Parole Board releases you into the community on parole, and, if you are granted parole, you may only remain in the community so long as you comply with your parole and do not offend. You remain liable to be recalled to prison to

_{complete your sentence.}

1 Sentencing Act 2002, s 102.

[24] That then gives rise to the second and quite separate issue I must decide and that is the minimum period of imprisonment that you must first serve before you become eligible to apply for parole.

[25] Normally ten years must be served before parole is able to be considered, let alone granted. But in your case there are two features aggravating your offence, the Crown contends, requiring that you serve a minimum term of 17 years before you become eligible for parole, unless such a minimum term is manifestly unjust.2 One ground is that JJ was particularly vulnerable because of his young age.3 The other is that you assaulted him with a high degree of brutality and callousness.4

[26] Your counsel responsibly accepts on your behalf, on your instructions, that it is uncontested that JJ was particularly vulnerable, at age two and a half years, weighing, as we heard, 14.3 kilograms and completely dependent on you, as well as his mother. He accepts on your behalf also that there is nothing that could render a

17 year minimum term manifestly unjust. In both respects I agree.

[27] The Crown then contends that your offence was so highly brutal and callous that a minimum term in excess of 17 years is called for. In this the Crown points to the sheer brutality of the assault required to cause JJ the injuries to his liver and pancreas that caused his death, and principally to two other aggravating features.5

[28] One of those features is that you did not attempt to obtain medical help for JJ. To the contrary, your immediate priority was to conceal your offence, when JJ must evidently have been at risk of his life and in excruciating pain. That, the Crown contends, was highly callous.6

[29] The other factor is that this was not an isolated offence on your part. At sentence, as at your trial, the Crown points to the injuries JJ suffered, while you were

_{living in the same household, his two broken arms and the wide range of bruises that}

2 _{Section 104(1).}

3 _{Section 104(1)(g).}

4 _{Section 104(1)(e).}

5 _{R v Pickering HC Auckland CRI-2008-055-001273, 30 July 2010.}

6 R v Blair Williams HC Wellington CRI-2004-078-1816, 24 February 2006.

he suffered, all consistent with sustained abuse.7 You are the only plausible source of those injuries, on the Crown's case.

[30] Your counsel submits that these further factors are already taken into account in the 17 year minimum term you must serve as a result of JJ's vulnerability as a very young victim, and that the Crown is double counting. Your counsel also submits that there is insufficient evidence to conclude that you were responsible for the injuries JJ suffered in the months before he died.

[31] I do not accept that these further factors in principle, or in fact, are double counting. One reason your offence was brutal and callous was that JJ was so young and so completely dependent on you but, in principle, the other factors are capable of being no less relevant and independently aggravating. The issue is whether they are.

[32] To decide whether you must serve a minimum 17 year term, or less or more, I am required to assess you and your offence in a complete way against the sentences imposed on offenders who have offended similarly.8 I have made that comparison against the cases on which the Crown and your own counsel relies and in the more extreme instances the combination of factors the Crown points to have led to a higher minimum term than 17 years at least being contemplated, if not imposed.

[33] In sentencing you as I now do, I must assess how far those factors bear on the minimum term that must be imposed on you.

Conclusions

[34] I begin with the obvious fact that JJ, your victim, was a two and a half year old child, highly vulnerable to any form of assault. Any assault with fatal effect on JJ, as on any young child had to be inherently brutal and callous. And in your case,

_{because you were a care giver, it would have involved also a gross breach of trust.}

7 Mahomed v R [2010] NZCA 419; R v Kapea HC Auckland CRI-2007-092-16885, 25 November

_{2008; R v Blair Williams, above n 6.}

8 R v Williams [2004] NZCA 328; (2004) 21 CRNZ 352 (CA) at [52].

[35] Secondly, while in contrast to other cases, it was never established at trial quite how you assaulted JJ, what is very clear is that to have caused his liver and pancreas to split, which are extreme and rare injuries, you must have used extraordinary force. The likelihood is that, when you punched JJ or kicked him, you had him pinned so that he could not move and his small body would absorb the full force of your assault.

[36] Thirdly, on the medical evidence again, JJ must have shown obvious signs of extreme distress. It must have been evident also that his life could be at risk. But that was not your priority. Your priority was to conceal your offence. You showered him because he had soiled his nappy. You put him to bed. He must have died very soon after while his mother, unaware, was in the next room.

[37] Fourthly, also aggravating your offence is, I am satisfied on the evidence, that this offence was in no sense isolated. It is no coincidence, I find, that JJ began to suffer serious injury when you began to live in the household and many of the injuries he was found to have suffered must have been inflicted by you. Your assault on JJ the day he died was simply the last and most extreme.

[38] Those four factors taken together lead me to the conclusion that, quite apart from the fact that JJ was highly vulnerable, and quite independently, your assault was brutal and callous in the extreme and places you in the category where a higher minimum term than 17 years must be imposed before you become eligible to be considered for parole.

[39] In the result, I sentence you to life imprisonment and I order that you not become eligible to be considered for parole until you have served a minimum term of 19 years.

[40] I am also obliged to warn you, and you will receive this warning in writing, that if you should commit any further such offence, except murder, after this first warning, you will receive a final warning and you will become liable to serve a finite sentence without parole or early release. If you are convicted of a murder after this

warning, you must be sentenced to imprisonment for life and serve that sentence

_{without parole unless it would be manifestly unjust.}

P.J. Keane J