R v Lackner [2015] NZHC 690 (14 April 2015)

Last Updated: 14 April 2015

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-019-003149 [2015] NZHC 690

THE QUEEN

v

_{CHARLIE LACKNER}

Charge: Plea:	Murder Guilty
Appearances:	R L Mann for Crown C Bean for Prisoner
Sentenced:	14 April 2015

_{SENTENCING NOTES OF VENNING J}

Solicitors: Crown Solicitor, Hamilton

Copy to: C Bean, Hamilton

R v LACKNER [2015] NZHC 690 [14 April 2015]

[1] Charlie Lackner you are for sentence today having pleaded guilty to murder. Mr Bean has realistically accepted on your behalf the sentence of life imprisonment is inevitable. The only issue for the Court to determine today is the minimum period of imprisonment before you are eligible for parole. Before I address that issue it is necessary to refer to the background.

[2] On 15 June last year you were at home. You had the sole care of your children, including eight month old Cassius. Your partner was at work. When she returned home at about 11.30 that morning she saw you lying on the couch. Cassius was lying on you. He was unresponsive. When she asked you what had happened you said: ‘I slapped him I’m sorry’. The police were called. Cassius was taken to Waikato District Hospital where he was treated for a significant brain injury. He was subsequently transferred that evening to Starship Hospital for the specialised treatment that hospital can provide.

[3] Cassius was found to have significant swelling and bleeding on and around the brain, bruising to both sides of his forehead, and two detached retinas. The pathologist’s report reveals that the injuries associated with his death were multiple bruises to the side and front of his head caused by blunt force trauma. He also had internal head injuries. He had right, and to a lesser extent left, acute subdural haematoma, which is bleeding in the brain, with secondary complications. The damage and swelling to his brain as a result of the injuries you inflicted on Cassius caused brain damage that could not be reversed or treated. It caused his death. In addition Cassius had other injuries. You had inflicted fresh fractures to his ninth and tenth thoracic vertebrae and third lumbar vertebrae, although those would not have killed him.

[4] You have pleaded guilty to murder on the basis that you did not mean to kill Cassius. However, you meant to cause him bodily injury, known to you to be likely to cause death and you were reckless whether death ensued or not.

[5] The pre-sentence report confirms you are 33 years old. Your parents died when you were relatively young. You have been brought up by your whanau. You have had a number of laboring jobs throughout your life. You have worked hard and

regularly to provide for your family. Your partner and the mother of your children have moved away from Hamilton where this incident occurred. However, you still have the support of a number of your whanau and that is obvious to the Court. In addition your counsel has provided letters of support from your sister, your niece, your nephew, and your brother-in-law. You will need that support over the years to come.

[6] There are concerning aspects of the pre-sentence report. You have a relatively recent conviction in early 2012 for an assault in late 2011 against your then partner. You undertook and completed a domestic violence counseling programme following that conviction but it obviously failed to prevent you from violently offending against an even more vulnerable member of your family, Cassius.

[7] Further, while you verbalised regret and remorse for your offending to the probation officer it seems you then sought to minimise it by saying you were just trying to settle Cassius as he was crying and you just tried to quieten him. You claimed your actions were impulsive. Mr Lackner, every parent at one stage or another is frustrated by their children crying, but parents control themselves. Every parent has an obligation to protect their children. It is one of the most fundamental instincts a human being has to protect their children. You not only failed to protect Cassius in this case, but you are the one who inflicted the fatal damage on him. Balanced against that I accept that in your recent letters to the Court and to your partner you appear now to have some appreciation of the effect of your actions on others, particularly your partner and your children.

[8] Overall I accept the probation officer’s assessment that you have poor parenting skills and an inability to control your temper, both of which make you a risk to children.

[9] The Court is directed to impose a minimum period of imprisonment in these circumstances of at least 17 years if certain factors are present. One of those factors is if the deceased was particularly vulnerable because of his age or because of any other factor. Although the Crown have suggested your killing of Cassius was committed with a high level of brutality or cruelty, I accept Mr Bean’s submission

that it cannot be categorised in that way. I also accept Mr Bean’s submission that it can be said that your offending and the level of violence inflicted on Cassius is to a degree out of character.

[10] As I have said I accept the probation officer’s assessment that you were simply inadequate and lashed out as a result of your frustration. Nevertheless s 104 is engaged as Mr Bean responsibly concedes because Cassius was clearly a vulnerable eight month old child in your care.

[11] The starting point then is the Court is required to impose a minimum period of 17 years unless it would be manifestly unjust to do so. In R v Williams the Court of Appeal suggested a two-stage approach to that assessment.¹

[12] The first stage is to consider the sentence the Court would impose if s 104 did not apply. In doing so I have regard to the purposes and principles of the Sentencing

_{Act 2002.}

h

_b

¹ R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA).

young child, your partner’s victim impact report makes it clear the effect your offending has had on her and will continue to have on her and your family. As a result of your offending you have lost her support. You have caused immeasurable loss and upset to her and your other children and that is something that they and you will have to live with in the future.

[14] The Crown are prepared to concede the Court should take into account you have pleaded guilty and also your expression of remorse which is accepted as genuine. The Crown suggest a non-parole period of somewhere in the region of 13½ years might be applicable. Mr Bean adopts the submissions of the Crown to the extent it would be manifestly unjust to impose the minimum period of 17 years and submits a term of between 12½ to 13½ years would be appropriate.

[15] I take into account the guilty plea, which you have entered which is an acknowledgement of responsibility and has not only saved the community the expense of the trial, but also has meant your former partner and the rest of your family, have not had to suffer through a full trial and the pressure of that. Further, as I have said your written letters of regret do show some appreciation of the effect of your actions on your partner and your children.

[16] I also take into account the other authorities referred to by counsel: R v Paul; R v Kapea; Mohamed v R; Ngatai-Check v R; R v Hemena; and R v Ellery.² The case of Ellery, which counsel relies on, can in my view be distinguished. Mr Bean submits the violence there was more ongoing but in that case Mr Ellery was actually a very young man who also had particular psychological issues. Neither of those features are present in your case.

[17] Further, there is regrettably far too much of this sort of offending in New

Zealand; violence inflicted against young children by people who are responsible for their care. Children have a right to be safe from harm. Parents and others

² R v Paul CA496/05, 1 August 2006; R v Kapea HC Auckland CRI-2007-092-16885, 25

November 2008; Mohamed v R [2010] NZCA 419; Ngatai-Check v R [2011] NZCA 543; R v

Hemena [2012] NZHC 376; and R v Ellery [2013] NZHC 2609.

failure to meet the high degree of trust which children and society attaches to that role. The community as a whole suffers when children are mistreated and killed by the very people responsible for their care. Denunciation and deterrence are important considerations.

[18] Having regard to the above factors I consider that if the 17 year minimum did not apply, an appropriate non-parole period in this case would be 15 years. I do not consider that it could be anything less.

[19] I then consider whether, nevertheless, it can be said 17 years otherwise mandated by s 104 would be manifestly unjust. I consider some allowance must be given for your guilty plea. Taking 17 years as a starting point and applying a reduction for your guilty plea, which followed promptly after the pathologist’s full report, but which was in the face of a strong Crown case, I consider a reduction in the range of 20 per cent would be appropriate. Applied to the number of years above the standard minimum period of 10 years that would lead to a reduction of close to

18 months. In addition, I accept you are entitled to credit for the remorse and the understanding you have now expressed as to the consequences of your actions. I note from the authorities that the Court has often allowed a reduction for guilty pleas and such features that I have been referring to of between one to two years on the minimum non-parole period that would otherwise apply.

[20] Standing back and looking at that matter overall, I consider then that it would be manifestly unjust to impose 17 years as the minimum period in this case, given your guilty plea and the other features I have referred to.

[21] Mr Lackner please stand. For the murder of Cassius you are sentenced to life imprisonment. You are to serve a minimum non-parole period of 15 years. I do not consider it can be anything less.

[22] How much longer than the minimum period you actually serve will be for the Parole Board to determine in light of whether you continue to pose a threat to the safety of the community at that time.

[23] Once released you will however be subject to the sentence of life

_{imprisonment. Stand down.}

Venning J