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High Court of New Zealand Decisions |
Last Updated: 3 March 2014
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2013-463-000098 [2014] NZHC 42
BETWEEN ROSEMARY ANNE ADAMS Appellant
AND NEW ZEALAND POLICE Respondent
Hearing: 3 February 2014
Appearances: M J Hine for Appellant
A Hill for Respondent
Judgment: 3 February 2014
(ORAL) JUDGMENT OF LANG J [on appeal against
sentence]
ADAMS v NEW ZEALAND POLICE [2014] NZHC 42 [3 February 2014]
[1] Ms Adams pleaded guilty in the District Court to two representative charges, one of intentionally ill-treating a child1 and one of assaulting a child.2 On 1
November 2013, Judge Weir sentenced Ms Adams to one year eight months
imprisonment.3 She now appeals against that sentence. She contends
that the Judge ought to have sentenced her to home detention.
The facts
[2] The facts giving rise to the charges are set out in an agreed
summary of facts that was produced for the purposes of sentencing
in the
District Court. These reveal that the victim was a young boy, who was cared for
by Ms Adams from the age of approximately
six weeks. When the child was two
years of age, Ms Adams obtained an interim parenting order in respect of the
child in her favour.
This was made final on 25 September 2012. Thereafter,
the victim remained in the care of Ms Adams until 22 February 2013.
[3] The offending giving rise to the charges occurred in several
different ways. First, Ms Adams would force-feed the victim.
This involved her
placing him in a highchair and grabbing him by the chin to force his mouth open.
Using a large spoon she would
then force food into the victim’s mouth, and
then hold his mouth closed. On occasions she would strike the victim’s
cheek until he swallowed the food she had placed in his mouth.
[4] On some occasions Ms Adams used the spoon to force food into the
victim’s mouth with such force that it would cause
him to choke. If he
did not swallow the food, she would hit him on his head or his legs with a
wooden spoon until he did so. The
blows to the victim’s legs were
delivered with sufficient force to cause bruising on several occasions.
[5] In addition, she would grab the victim by the back of his head and
force food into his mouth. Not surprisingly, this caused
the victim
considerable discomfort and
1 Crimes Act 1961, s 195(1).
2 Crimes Act 1961, s 194(a).
3 New Zealand Police v Adams DC Rotorua CRI-2013-063-001918, 1 November 2013.
he would make this known by crying. Ms Adams would then hit the victim
around his head, legs or bottom until such time as he stopped
crying.
[6] Ms Adams also encouraged two other young persons who lived at the
house to assist her in force-feeding the victim. She
would arrange for them to
hold the victim by his legs and arms to keep him still while she forced food
into his mouth. On occasions,
Ms Adams also encouraged one of these persons to
hold the victim’s nose whilst he was being fed.
[7] As the victim got older, Ms Adams became frustrated because he
would often wet his pants. To prevent this, she would place
him on the toilet
and would leave him there for very long periods. Occasionally, she left him on
the toilet for more than five hours.
On some of these occasions, the victim
would fall asleep on the toilet and would also fall off the toilet.
[8] In another effort to prevent the victim from wetting himself, Ms
Adams began to restrict his water intake. She would allow
him to drink no more
than 250 millilitres of water per day, when the optimum water intake for a child
of his age was around 1.1 litres.
Expert evidence before the Court suggested
that no young person should be deprived of water intake, and that young persons
should
be allowed to consume as much fluids as they wish.
The appeal
[9] Counsel for Ms Adams does not take issue with the manner in which
the Judge constructed the sentence. He took a starting
point of two years six
months imprisonment and reduced that by ten months, or one-third, to reflect Ms
Adams’ very early guilty
pleas and stated remorse. The thrust of
counsel’s submissions was to the effect that the Judge erred in the way in
which he
addressed the issue of home detention. The Judge expressed his view
regarding this issue as follows:
[19] The issue that Mr Hine addressed me on specifically and which is opposed by the prosecution is home detention, because at that level you are eligible for home detention. Section 16 Sentencing Act 2002, of course, tells us that a sentence of imprisonment is a last resort and all other options should be considered. Sections 7 and 8, of course, are also relevant, but, in my view, when I look at your offending as it has been described and when I
take account of these recent directives by Parliament in 2008 and 2011, plus
all of the other aggravating features of your offending,
in my view home
detention would be an inappropriate sentence. You are therefore convicted and
sentenced to imprisonment for a period
of 20 months.
[10] Counsel for Ms Adams submits that, on the approach taken by the
Judge, no case involving child abuse would ever result in
a sentence of home
detention. He submits that such an approach is wrong in principle, and that
this Court should interfere as a
result.
[11] Secondly, counsel submits that the Judge erroneously took into
account a factual issue that did not form the basis of any
of the charges. This
follows from the following passage from the Judge’s sentencing
remarks:
[2] I do not propose to go through all of the facts
outlined in the summary of facts because they have been widely
publicised
already and, in my view, there is little point in just repeating them today. I
do, however, refer to the formal written
statement of De deLore, a
paediatrician, who commented on essentially five separate categories of
ill-treatment which are referred
to in the summary of facts. He, first of
all, in a statement said that he first met your grandson when he presented at
Rotorua Hospital with pain in his leg on
20 April 2012. An x-ray showed that he
had a spiral fracture of the right tibia, a bone that runs from the knee to the
foot. There
was no explanation from you as to how the fracture occurred. He
did go on to say, however, that this sort of fracture can be the
result of an
accident, such as a fall from a height.
[3] No referral was made to police or Child, Youth and Family
regarding the injury. Apparently, the police became involved
as a result of
Child, Youth and Family themselves becoming involved and uplifting your
grandson and also a girl who was in
your care in February 2013.
(Emphasis added)
Decision
[12] I can determine the second issue relatively briefly. I consider that the Judge’s reference to the physical injuries formed part of the narrative or background to the case, and no more than that. The Judge did not refer to the issue at any other stage in his sentencing remarks. I am therefore satisfied that he did not take this issue into account when reaching his decisions regarding the starting point or the issue of home detention. This ground of appeal fails as a result.
[13] It has been said that the imposition of a sentence of home detention is the exercise of a fettered discretion.4 It is a discretion entrusted to a sentencing Judge, but must be exercised in accordance with the purposes and principles of sentencing. As the Judge in the present case remarked, Parliament has made it clear that cases involving physical violence against young children require a stern response. This is reflected in the fact that, in December 2008, s 9A of the Sentencing Act 2002 came
into force. This specifically directs the Court that in cases involving
violence against young children, it must take into account
the defencelessness
of the victim, any serious or long-term physical or psychological effects on the
victim and the magnitude of
the breach of any relationship of trust between the
victim and the offender.
[14] In addition, Parliament has increased the penalty for this type of
offending from five years imprisonment to ten years imprisonment.
5
As the Judge remarked, this significant increase in maximum penalty,
illustrates Parliament’s intent that the courts should
deal sternly with
offenders who ill-treat or neglect young children.
[15] The present case had several aggravating factors. The first of
these was that it involved a gross breach of trust by a caregiver
in respect of
a very young and defenceless victim. Secondly, the ill-treatment took several
different forms, all of which were
highly inappropriate and likely to cause
longstanding damage for the victim. Thirdly, the offending occurred over a very
lengthy
period.
[16] I accept that there was probably no need to issue a deterrent sentence so far as Ms Adams was concerned, because these convictions mean that she is unlikely ever to be entrusted again with the care of young children. There was, however, an important issue of general deterrence at stake. The Judge needed to send a message to other persons who might consider using such inappropriate methods of feeding and disciplining young children. Those are important factors, as Parliament has
clearly recognised.
4 Fraser v R [2013] NZCA 250 at [17].
5 Crimes Amendment Act 2011, s 7.
[17] Like the Judge, I accept that the offending has had a devastating
effect on Ms Adams. She has been excluded from her Church,
and has lost her
longstanding employment. In addition, she has been the subject of
very considerable local publicity
in the local news media. All of those
factors, however, are reasonably predictable responses to the type of offending
in which
Ms Adams engaged. Of themselves, they do not fulfil the
sentencing principles of denunciation and deterrence that were
to the
forefront in the present case.
[18] I consider the Judge was entitled to conclude that the seriousness
of the offending was such that a sentence of home detention
would not be an
adequate deterrent to others who might consider engaging in conduct of this
type. For that reason he was entitled
to impose a sentence of imprisonment
rather than home detention.
Result
[19] The appeal against sentence is accordingly
dismissed.
Lang J
Solicitors:
Families Matter Law Ltd, Rotorua
Crown Solicitor, Rotorua
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