R v P [2014] NZHC 1808 (1 August 2014)

High Court of New Zealand

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R v P [2014] NZHC 1808 (1 August 2014)

Last Updated: 20 August 2014

_{NOTE: PERMANENT NAME SUPPRESSION OF DEFENDANT}

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2013-054-3159 [2014] NZHC 1808

THE QUEEN

v

_P

Hearing:	1 August 2014
Counsel:	B D Vanderkolk for Crown O S Winter for Defendant
Sentence:	1 August 2014

_{SENTENCE OF RONALD YOUNG J}

[1] After a sentence indication Ms P you pleaded guilty to a charge of manslaughter. The great tragedy is that the person whose death you contributed to was your own daughter.

[2] During the course of 2012 your daughter began suffering from reflex anoxic seizures. That is, sometimes she would hold her breath and as a result become temporarily unconscious. The seizures could occur at any time but it was common for them to occur when she was hurt or when she was upset and sometimes when she was on her own.

[3] In October 2012 your daughter was 23 months of age. That day you had gone out with friends and your daughter’s father was looking after her. When you arrived home you found that your child had a dirty nappy and her father had not

_{changed the nappy. You put her in the bath to clean her.}

R v P [2014] NZHC 1808 [1 August 2014]

[4] In the meantime you had put some knives out on the stove. You were intending to use those to spot cannabis. A friend of yours had arrived and the two of you had discussed using cannabis. But in any event you left your daughter in the bath and went outside with a friend. The friend and you were talking and you were also looking after your older child who was also outside. I accept that no drugs were used then. It seems probable that you were outside for somewhere between 10 and

13 minutes. When you came back inside you found your daughter lying lifeless on her back in the bath. She had died.

[5] The immediate trigger for her drowning cannot be identified. But her cause of death was drowning. Your daughter either slipped on the bath and fell and drowned or she had a fit and drowned. Either way you were seriously neglectful. I wish to say clearly and unequivocally a 23 month old child should never be left in the bath alone. And that’s mostly because medical evidence establishes that a child of that age does not have the reflex necessary to lift their head above water if they are lying in a bath. And so they are particularly vulnerable to drowning.

[6] But in this case, there is an important addition. There was an additional reason not to leave your daughter in the bath. And that was because of her propensity to have seizures. That made her especially vulnerable.

[7] I agree with the Crown when they say the aggravating features of your offending was your daughter’s vulnerability from both age and seizures. The Crown say that this was a breach of trust in the sense that every parent has an obligation of trust to their children to look after them particularly those who are very young. The Crown accepted with your guilty plea that you have significant remorse and you have a previous good record. They say a sentence of home detention should be imposed.

[8] I take into account the submissions your counsel has made both in writing and today. He says that this was not the case it had been initially when it was suggested you had been using drugs and neglecting a child. No drugs were used when you were outside with your friend and that you were outside mostly to supervise your older child. You had recently shifted into the property and when your

son was outside it was necessary that he be supervised. And that’s what you were

doing when your daughter was in the bath.

[9] He mentions that at 22 years of age at the time you were heavily pregnant and under significant stress with your partner and with your economic circumstances. And so when you went outside to look after your son you simply forgot for a few minutes about your daughter. I certainly agree with his submission that there is little to admire in the actions of your partner in all of this.

[10] Your counsel emphasises the extraordinary victim impact, the heavy sense of responsibility you feel for these events and your deepest remorse. This has, I accept, been a hugely traumatic event for you and a great tragedy for you and your wider family.

[11] I have also had the opportunity of reading a number of your medical records from that time. Your counsel submits that the appropriate sentence is one of supervision.

[12] As to the pre-sentence report the Probation Officer does express some concern about the father of your children and his commitment to the children. The officer notes you have got support of her mother and grandmother and reiterates the significant depression you have had and grief since the death of your young daughter.

[13] As to potential sentences, my sentence indication was of a community based sentence but I indicated that I was not prepared to identify which. Any sentence of course must reflect the seriousness of the offending as well as practically reflect your ability to function in your household and to look after your two children.

[14] Probation say that a sentence of home detention could be imposed. It would require permitted absences from your house to take your children to and from school and kindergarten and to be allowed to shop and get other family needs. Probation mentions that in fact home detention would provide a significant level of support for you because community probation staff would be involved.

[15] I want to emphasise again to you Ms P that there are two reasons why you should not have left your child in the bath alone – her age and the seizures. The fact that you did so for an extended period was seriously negligent. Particularly because of the seizures she was suffering. On the other hand I accept the pressures that you were under. I accept the lack of support. I accept you the financial pressures that you were under and I certainly accept that you are deeply remorseful for these events.

[16] I said at my sentencing indication hearing that I thought the proper start sentence was three years’ imprisonment. I deducted from that six months for your personal circumstances and 25 per cent for your guilty plea reflecting that the delay was primarily about investigating the cause of death which should not impact on the discount for your guilty plea. That reduced the sentence to just less than two years.

[17] I accept that a sentence of home detention will be onerous for you but I need to mark the seriousness of what you have done and that a young child is dead. I intend to impose a home detention sentence but I will reduce it to reflect how onerous it is and the circumstances. I do not consider a sentence of less than home detention would adequately reflect the seriousness of your failures.

[18] As to name suppression I accept that there will be a real effect from publication of your name. I acknowledge your counsel’s submissions about your depression, most importantly the impact on your children and the resultant gossip and innuendo. The medical reports also provide useful background. By the slimmest of margins I have decided that you have established extreme hardship and that I can suppress your name now permanently.

[19] You are sentenced on the manslaughter charge to four months home detention. I have reduced that significantly from what could have been 11 or

12 months’ home detention to reflect how onerous this sentence will be.

[20] I impose that sentence together with the conditions set out in paras 5 and 6 of

_{the pre-sentence report.}

_{Ronald Young J}

Solicitors:

Ben Vanderkolk & Associates, Crown Solicitors, Palmerston North

WinterWoods Lawyers, Palmerston North