R v Moran [2014] NZHC 966 (9 May 2014)

Last Updated: 27 May 2015

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2011-020-3581 [2014] NZHC 966

THE QUEEN

v

_{PETER ROSS MORAN}

Hearing:	9 May 2014
Counsel:	B Vanderkolk for the Crown M Wilkinson-Smith and H Brown for Mr Moran
Sentence:	9 May 2014

_{SENTENCING NOTES OF MALLON J}

Introduction

[1] Mr Moran you need to stand. You appear for sentencing having been convicted at a retrial on a charge of causing grievous bodily harm with reckless disregard to safety.¹

Circumstances of offending

[2] The victim of this offending was a two year old toddler whose name is B . You met B ’s mother, Ms R , and B , during the latter half of 2010. The three of you moved into a home together in Palmerston North in February 2011 where you had enrolled as a student at Massey University. Within a few weeks you and Ms R decided to end your relationship, although you continued living in

_{the same house and sleeping in the same bed. Not long after this Ms R}

¹ _{Crimes Act, s 188(2). The jury was unable to reach a verdict at the first trial.}

R v MORAN [2014] NZHC 966 [9 May 2014]

learned that she was pregnant to you and she was experiencing severe morning sickness as a result.

[3] The evidence at trial was that B was an adventurous and challenging toddler. B often got out of bed at night and took his clothes off, and he often urinated and defecated around the house. There were a number of incidents of B climbing onto furniture and onto and out of windows. On one occasion, B climbed out of his bedroom window at night to get a closer look at a digger that was working on the street. He was found by his mother on the street outside the house. In the early hours of 14 May 2011 B climbed on to the lounge window sill, opened the window and fell, hitting his head on a concrete path. He was taken to hospital for observation and ultimately discharged on 15 May 2011 after being assessed as in good health.

[4] Ms R was having difficulty in managing B ’s behaviour and providing sufficient supervision of him. Shortly before the present incident she had met with a child psychologist and had booked a second appointment. She and you had begun making entries in a book, called B ’s book, to record B ’s behaviour issues. You had also put in place a “naughty square” in the kitchen as a place where B was to be put to help him to understand that some of his behaviours were not okay.

[5] On the evening of 17 May 2011 B was put to bed. Ms R went to bed herself at about 9.30 pm. You were watching television and working on university assignments that were due. At some stage it seems that B had gotten up out of bed. You told the police that B came into the room where you were working, with his shirt around his neck and without his nappy. You said that you and B spent about 10 minutes trying to find his nappy. You could not find it so you sent B back to bed with a shirt on. You also said that you heard him grizzling and crying and checked on him. You said that at this time he was in bed lying as he normally does.

[6] Shortly before 1.20 am you were preparing to go to bed. You talked briefly to Ms R who had woken up and then you left the room to turn the lights of

the house off. You went into B ’s room and then immediately alerted Ms R . At this time B was lying on the floor by his bed. He was very cold and unresponsive. The medical evidence at trial was that at this point in time B was deeply unwell and in rapid decline. You called 111. That call was made at

1.20 am. Ms R was distraught. It is clear from the 111 call that you too were very concerned for B and did what you were asked to do by way of assistance for B . The emergency services arrived very quickly. B was taken to Palmerston North Hospital and then transferred to Starship Hospital. An operation was performed which saved his life but he has severe permanent injuries.

[7] The medical evidence at trial was that B suffered a blunt force trauma to his head which caused brain injury and that this injury was not caused by the 14 May fall. Your defence at trial was that B had suffered his injuries from a fall from his climbing activities. Alternatively you suggested that Ms R may have inflicted the force to B . The jury’s verdict means that they were sure that you inflicted the blunt force trauma that caused his brain injury. That is, that you either struck B ’s head with a forceful blow or caused his head to be brought into contact with a hard object or surface. You did so sometime before 1.20 am at a time when Ms R was asleep and you were up studying and watching television. The jury’s verdict means that they accepted you lashed out at B in a momentary loss of

self-control, overwhelmed with B ’s behaviour at that point in time.² That is the

basis on which I sentence you.

Victim impact

[8] The consequences of that loss of control are simply dreadful. A large part of B ’s brain is permanently damaged. He has on-going epileptic seizures. He has intellectual disability with impaired speech and language, visual impairment and other behavioural difficulties. He is expected to have significant cognitive and communication impairment for the future. He has paralysis on the right side of his body and major issues with mobility. He needs a wheelchair and it is very unlikely

_{that he will ever be able to walk freely and independently. It is most likely that he}

² This was the basis on which the Crown closed its case on this charge, which was laid in the alternative. The jury found Mr Moran not guilty on a charge of causing grievous bodily harm with intent to cause him grievous bodily harm (Crimes Act, s 188(1)).

will continue to need 24/7 care for his basic needs such as feeding, dressing and toileting and to keep him safe. In short the effects on B are catastrophic and his outlook is grim.

[9] B ’s mother, Ms R , refers to how B ’s life, her life and the life of everyone involved with B has changed as a result of what happened that night. She says that every seizure B has is painful and stressful for her. It is heartbreaking for her to see B unable to do things. There are other emotional and financial costs which Ms R has set out in her victim impact statement which we have heard read out by her this morning.

[10] B ’s caregivers are Ms R ’s parents. They too have suffered emotionally and financially in a significant way as is detailed in their victim impact statement and which Mr Downey has read out in Court today. They live “day by day” and feel like they are paying a very high price for your actions. B is fortunate in that he has their love and willingness to take on his care which has come at such a cost to them.

Circumstances of the offender

[11] Turning then to your circumstances. You are now 24 years old. You have the support of your family. Your daughter from your relationship with Ms R is in your sister’s care. You have supervised access to her. You are currently employed. You have two convictions for an unrelated and relatively minor matter. You have no convictions for violence of any kind. You do not have any alcohol or drug issues.

[12] At the time of the present offending you were 21 years old. You were in your first year of studying for a psychology degree at Massey University. Following being charged with this offending you withdrew from the course. You have been on bail since being charged and following your conviction. You have since re-enrolled at Massey.

[13] The pre-sentence report writer notes that you maintain your innocence. As such you are not remorseful. You are sorry though for what has happened to B .

Submissions

[14] The Crown submits that the appropriate starting point for the offending is seven years imprisonment. That is the maximum available sentence on the charge on which you were convicted. The Crown says that maximum is warranted because the victim was a defenceless toddler who has suffered serious long term injuries inflicted in circumstances involving a breach of trust by you as someone responsible to a large degree for his care at that time. The Crown submits that were it not for the proximity of the house to the hospital and the efforts of outstanding doctors then B would have died as a result of what you did and you would have been facing a homicide charge. The Crown submits that there are no mitigating factors.

[15] Your counsel submits that the appropriate starting point for this offending is somewhere between two years and nine months imprisonment and up to three and a half months [years] imprisonment.³ Your counsel submits that there are mitigating personal circumstances. She emphasises your youth, that you are essentially a first offender, that you have future prospects, that you have the support of your family. She submits that a discount of 20 per cent should be applied for these factors. She

also submits that a further 10 per cent discount should be applied to recognise that you have been on bail for two and a half years with consequent stress and disruption over an extended period.⁴ That would bring the sentence down to a length where home detention could potentially be considered. That is the sentence she seeks on your behalf, recognising that such a sentence would be rare in cases of this kind.

Sentence

[16] You were charged with and convicted of causing grievous bodily harm with reckless disregard and it is that for which you are to be sentenced. It is without doubt that the effects of the offending are as serious as they can be for a charge of this kind. It is also without doubt that the injuries were sustained on a defenceless toddler who was dependent for his care in the home in which you and Ms R

_{lived. Though perhaps not a father figure for B , or to the extent you were it was}

³ _{R v Boynton [2013] NZHC 2638; R v Kabhir [2013] NZHC 2178; R v Filo [2007] NZCA 20.}

⁴ Relying on the effect of undue delay in a prosecution as discussed in Williams v R [2009] NZSC

41[2009] NZSC 41; , [2009] 2 NZLR 750.

for a short period, the evidence was that you had a good relationship with him, played with him and helped Ms R in providing care for him. Ms R says he loved you and you were really good with him. It is therefore correct to characterise the offending as involving a very serious breach of trust on your part. That breach involved you inflicting on B ’s young head such force as to result in the consequences I have described.

[17] Those factors make this offending very serious. They do not, however, put this offending as within the most serious of cases for its kind. I must take into account that the charge on which you were convicted did not involve intent to injure B . It was not a culmination of a course of inflicting harm on B over a period of time. In fact the evidence of Ms R , supported by other witnesses, and letters submitted in support of you today, was that you had never hit or hurt B before and had instituted strategies to help deal with B ’s behavioural difficulties in appropriate ways. This was a one-off loss of control which occurred in the context of very difficult and trying circumstances, which you and Ms R were each trying to cope with in various ways. That does not excuse what happened, but it must be recognised in assessing where this offending fits in comparison with other cases.

[18] I have read all the cases that counsel have submitted to me and others as well. The cases relied on by the Crown where starting points have been taken at the maximum of the available penalty are not comparable.⁵ They involve different charges where there was an intent to cause grievous bodily harm or to injure and sustained violence over a period of time was inflicted. Different considerations apply where the mental element proven is reckless disregard and the offending involves a single act of violence in a momentary loss of control.⁶

[19] Cases where the charge was the same as the one on which you are convicted which were decided before Parliament amended the Sentencing Act 2002 in respect

5. Tuau v R [2013] NZCA 623; August v R [2011] NZCA 91 (14 year maximum starting point not taken only because of an element of provocation); M v R [2012] NZCA 223.
6. R v Brown [2009] NZCA 288; Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [37] (see in particular the comments at footnote 39); R v Wilson [2004] NZCA 73; [2004] 3 NZLR 606 at [44], [51] and [58].

of violence against young children are not so helpful either.⁷ This case is more serious than other cases of the same kind I have considered because none of them have involved the severity of lifetime injuries that B has.⁸ On the basis of the aggravating features I have already identified, but recognising that this is a charge involving reckless disregard for safety, I would put the starting point at five years imprisonment. However that needs to be reduced to reflect that you were a young man thrust into a difficult stage of parenting and in a difficult situation with challenging behaviour. You lashed out in a momentary loss of control in that situation. Notwithstanding the Crown’s submissions, the authorities have made allowance for a young man, or woman, lashing out.⁹ To recognise this I reduce the starting point to four years imprisonment.

[20] There are no other personal aggravating factors. Turning then to mitigating factors. You have been on bail for a lengthy period of time. A discount for this is ordinarily only appropriate where the delay has been caused by the prosecution or where the terms have been very restrictive.¹⁰ That is not the situation in your case. However I do accept that the lengthy period that you have been on bail has come with significant disruption to your life as you have waited for trial. I accept that this offending was out of character, as the letters submitted in support of you all say, and that as essentially a first offender who has good rehabilitative prospects, a further small discount would be consistent with the authorities.¹¹ For all these factors I have mentioned I reduce the sentence to 42 months imprisonment.

[21] What all that means is an end point of 42 months, that is three years and six months, imprisonment. That I see is the least restrictive but appropriate sentence in

_{all the circumstances. It means, as I indicated to your counsel in her submissions,}

⁷ Sentencing Act 2002, s 9A; R v Hall [2012] NZCA 518 at [18]; R v Brown, above n 6; R v Filo, above n 3; R v Peauvale HC Auckland TO22287, 6 March 2003; R v Te Waaka HC Auckland CRI-2006-092-158178, 7 April 2008.

⁸ For example, R v Boynton, above n 3; R v Kabhir, above n 3; R v Broadbent [2013] NZHC 859;

_{R v Devlyn [2013] NZHC 1640.}

⁹ For example, R v Hall, above n 7; R v Broadbent, above n 8; R v Kabhir, above n 3; R v Devlyn, above n 8; and in homicide cases see R v Lock HC Rotorua CRI-2009-069-620, 30 September

2010; R v Ellery [2013] NZHC 2609; R v Donnelly HC Palmerston North CRI-2009-054-

_{003582, 25 March 2010.}

¹⁰ _{BB v R [2013] NZCA 139; Winkelmann v R [2010] NZCA 215.}

¹¹ Leota v Police HC Christchurch CRI-2008-409-0089, 26 June 2008; R v Woodcock HC Rotorua

CRI-2008-019-0783, 30 October 2009; R v Luatua HC Auckland CRI-2008-044-9035, 4

February 2011; R v Kabhir, above n 3; R v Devlyn, above n 8.

that a sentence of home detention is not available. That can only be considered if the end sentence I had reached was no more than two years imprisonment.

Minimum period of imprisonment

[22] The Crown’s written submissions sought a minimum period of imprisonment of half the sentence.¹² Those submissions were that a minimum period was necessary to denounce the offending and hold you accountable for the harm done and because you remain a serious risk to the community and of harm to others. That is not pressed in the Crown’s oral submissions today.

[23] In my view a minimum period of imprisonment is not required. The sentence I have imposed already reflects the need to denounce the offending and to hold you accountable. Deterrence features less because of the momentary loss of control the offending involved and the circumstances in which it occurred.¹³ You are still a young man. You are essentially a first offender. You have prospects for the future. On the information before me I expect on your release from prison that you will be a contributing member of the community. In these circumstances your release is better determined by the parole board.¹⁴

End sentence

[24] You are therefore sentenced to three years and six months imprisonment. You were given a first strike warning when the conviction was entered. You may stand down.

_{Mallon J}

¹² _{Crimes Act 1961, s 86.}

¹³ _{R v Durkin (1989) 11 CR App R (S) 313 at 315 referred to in R v Wilson, above n 6, at [48].}

14. For example, no minimum period of imprisonment was considered appropriate in R v Donnelly, above n 9.