IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY CRI [2017] NZHC 1494 THE QUEEN

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY CRI [2017] NZHC 1494 THE QUEEN v SHANE CHRISTOPHER NEIL LACEY-MARIE TE WHETU DONNA CATHERINE PARANGI Hearing: 30 June 2017 (Heard at ROTORUA) Appearances: H Sheridan for Crown R Laybourn for Mr Neil W Lawson and B Hollier for Ms Te Whetu S Gray for Ms Parangi Judgment: 30 June 2017 SENTENCING REMARKS OF LANG J R v NEIL,TE WHETU & PARANGI [2017] NZHC 1494 [30 June 2017]

2 [1] Ms Te Whetu and Mr Neil, you appear for sentence today having pleaded guilty to a charge of manslaughter. Ms Parangi you also appear for sentence today having been found guilty by a jury on that same charge. As I am sure you are all aware, that offence carries a maximum penalty of life imprisonment. [2] I propose first to set out the background to the charge in a general way. I will then return to consider the factual background in more detail when I determine the starting points to be applied in respect of each defendant. Background [3] The victim in this case was an eight month old baby boy called Isaiah. Isaiah was the son of Mr Neil and Ms Te Whetu. Ms Parangi is Ms Te Whetu s mother. Isaiah was her grandson. [4] As at 2 November 2015 Isaiah, Ms Te Whetu and Mr Neil were all living with Ms Parangi and her husband in their family home at Ruatoki. They had moved there in or about June During the evidence at trial, I heard that Mr Neil came and went from the address, but he was certainly living there as at 2 November [5] 2 November 2015 was a Monday. Ms Parangi was not working on that day. At about 9.30 am, Ms Te Whetu s two older children having gone to Kohanga Reo, Ms Parangi and Ms Te Whetu drove to Kawarau. There they purchased a quantity of synthetic cannabis. They then purchased something to eat and returned to Ruatoki. Isaiah had accompanied them on the journey. It appears that throughout the journey he was strapped in a car seat in the rear of the vehicle. [6] When the vehicle returned to the home at Ruatoki, it was parked in the back yard of the address behind the house. It was parked in an area where there was no shade. The evidence disclosed, and the summary of facts in respect of Ms Te Whetu and Mr Neil records, that the vehicle returned home at about pm. At that point Isaiah was asleep in his car seat in the rear of the vehicle. [7] Ms Te Whetu and Ms Parangi then agreed that they would leave Isaiah asleep in the vehicle in his car seat. They went into the house. It is common ground that

3 they both then consumed some of the synthetic cannabis they had purchased in Kawerau. [8] Isaiah was left in the vehicle until 3.30 pm. There is nothing in either the summary of facts or the evidence at trial to suggest that any person checked on his welfare during that period of three hours. It seems that Mr Neil was at the address when Ms Te Whetu and Ms Parangi returned home, but he was never informed that Isaiah had been left in the vehicle. [9] After consuming cannabis, both Ms Te Whetu and Ms Parangi went to sleep. It seems that Mr Neil became concerned as to Isaiah s whereabouts at about 3.30 pm. He then went out to the vehicle and discovered Isaiah in the back seat. It was clear that Isaiah was extremely ill at this point. He was limp, unresponsive and hot. Mr Neil brought him back into the address and showed him to Ms Te Whetu. She then put him in his cot and took no further action. It seems that she and Mr Neil then slept until about 6.30 pm, when they discovered that Isaiah was still in an unresponsive state. It was not until 6.36 pm that the emergency services were alerted. When they arrived, they found Isaiah dead. [10] The medical evidence at trial was to the effect that it could not be determined whether or not Isaiah could have been saved if emergency services had been alerted at 3.30 pm. That issue is therefore open. [11] Isaiah had, however, been in a hot vehicle for a considerable period of time. The evidence disclosed that this was a sunny day in November. Temperatures rose to around the early 20s during the course of that day, peaking at around 22 degrees. Evidence called at trial was to the effect that the temperature in the vehicle would have risen rapidly after Isaiah was left in the vehicle if the doors had been left closed. The evidence was that, within an hour, the temperature would have been up around 40 degrees. [12] There was also a significant amount of evidence about the effects of hyperthermia, or overheating, on the human body. From a point where it causes initial discomfort matters develop rapidly to a point where bodily functions are

4 significantly impaired and reduced. Ultimately, the cell structure of the body begins to disintegrate. This was consistent with post-mortem findings that disclosed areas of internal bleeding in Isaiah s chest and in his eyes. Sentencing principles [13] Against that general background, it is necessary to consider the sentencing principles that inform the sentences to be imposed on the three defendants. [14] Any death of a very young child is tragic. It is even more tragic when the death is completely needless, and is caused by repeated failures by parents and those entrusted with his care. [15] In the present case there was no need for Isaiah to have died. He could have been left in that vehicle in such a way that his interests were protected. This would have required either or both the windows and doors to be open and regular checks to be made upon him. I shall return to that topic shortly. [16] In a case where the death of an infant occurs through parental and grandparental failure, I consider that issues of deterrence and denunciation come into play. Those who are entrusted with the care of young children have a statutory obligation to ensure they protect such persons from injury. They have an obligation to ensure that they are provided with the necessaries of life. In cases where people fail to meet that obligation and an infant dies, there is the need to impose a sentence that deters others from acting in a similar way in the future. Starting points [17] The first issue I need to determine in relation to each defendant is the starting point to be applied in respect of the culpability of that particular defendant. That is not an easy task because there is no guideline, or tariff, judgment of our Court of Appeal in relation to the crime of manslaughter. This is because the crime can be committed in a vast number of ways, and no guideline judgment will be of any practical assistance. In some cases there can be a discharge without conviction. 1 In 1 See eg R v X [2015] NZHC 1244.

5 others, where there is prolonged physical abuse and neglect, the starting point may be life imprisonment. 2 Ms Parangi [18] I begin by considering the position of you, Ms Parangi. Your culpability lies in the fact that you were party to the decision with Ms Te Whetu to leave Isaiah in that vehicle. In the videotaped interview by the police, you said that you told your daughter to leave Isaiah in the back seat because he was asleep. Now that was a decision that you were entitled to make. However, you needed to ensure that he was safe in that environment. You told the police that you believed that the windows and doors of the vehicle were left open. That assertion had an obvious difficulty in that at least one of the windows was shown to be inoperable. [19] Evidence was called from a neighbour and from other persons who were at the address that afternoon. None of those persons saw the doors or windows of the vehicle open. To be fair, however, none was taking particular notice of the vehicle when they visited the property. In addition, they viewed the vehicle from the side that they looked at it from, so they were only looking at one side of the vehicle. [20] I consider, however, that the preponderance of the evidence is to the effect that Isaiah was left in a vehicle that had the doors and the windows closed. This means that he was in a position of considerable potential danger because of the risk that the temperature in the vehicle would rise. That risk was exacerbated by the fact that the vehicle was standing in the open, in the sunshine, and in the absence of any shade. [21] That is not, however, the end of the matter. Had regular checks been made on Isaiah, no issue would have arisen. You told the police, Ms Parangi, that you went into the house and you told your daughter to have a lie down because she was tired. You acknowledged that you then smoked some synthetic cannabis. 2 R v Shailer [2016] NZHC 1414.

6 [22] During your interview with the police, you minimised the effect that synthetic cannabis has on you. You made out that it was no more significant than having a cup of tea or coffee. You said that when you got back to the address you did some washing, you did some chores and you had a puff. You also acknowledged that you had a lie down, or a rest. I have no doubt, however, that after you had smoked that synthetic cannabis, you went to sleep. [23] We heard evidence during the trial from members of your wider family about the concerns they held regarding your consumption of synthetic cannabis. It seems that it had the effect on you of sending you into a deep sleep. By sending your daughter to have a rest, you acknowledged that you would take responsibility for Isaiah. When you elected to smoke synthetic cannabis, you must have known that this was going to have a significantly detrimental effect on your ability to undertake that task. Once you went to sleep of course, Isaiah was left alone and unprotected in the vehicle. I therefore consider that you have significant culpability in relation to Isaiah s death. You left him for three hours unattended. That is a very lengthy period indeed. [24] Counsel have referred me to a number of cases in which offenders who have pleaded guilty to, or been found guilty on charges of manslaughter have been sentenced. The Crown submits that the culpability of your offending justifies a starting point of around six to seven years imprisonment. Your counsel submits that a starting point of no more than three years imprisonment is appropriate. [25] None of the cases mirror the situation that occurred in this case and for obvious reasons. No two cases are ever alike. All counsel have referred to the case of R v X. 3 That is a case where a health professional who was tired and concerned about work responsibilities simply had a memory blank, and left her child in the rear seat of the vehicle. He died of hyperthermia. That defendant was ultimately discharged without conviction. I take your case to be in a completely different category because you knew Isaiah was in the back seat of the vehicle and you knew that you ought to check on him. 3 R v X, above n 1.

7 [26] Another case referred to by counsel is E v R. 4 In that case a mother had left a baby in a bath of water. The bath was relatively deep. The mother left the child unattended for a period of 11 to 15 minutes to prepare breakfast for another child. In her absence the baby drowned. In that case the sentencing Judge who adopted a starting point of four years imprisonment, but the Court of Appeal reduced the starting point to one of three years imprisonment. [27] Counsel have also referred to R v Tukiwaho. 5 In that case a mother was sleeping in a car overnight. In order to ensure that her baby was warm she placed the baby over her shoulder. Unfortunately, she smothered the child during the course of the night. The mother had been drinking heavily before she made the decision to hold the child close to her in the vehicle. The sentencing Judge in that case adopted a starting point of three years imprisonment. [28] I consider your culpability to be greater than that of the offenders in E v R and Tukiwaho. You made the decision to consume synthetic cannabis in circumstances where you knew both that Isaiah was in the vehicle and that cannabis was likely to send you to sleep. You then left him for a very significant period. [29] I consider that the culpability of your offending justifies a starting point of four years imprisonment. Ms Te Whetu [30] I now need to consider the starting points in relation to Ms Te Whetu and Mr Neil. I begin with Ms Te Whetu. [31] Ms Te Whetu, I have already recorded that your mother accepted in a police interview that the suggestion to leave Isaiah in the vehicle came from her. Nevertheless, you were Isaiah s mother. You could have said no or you could have ensured that the doors and windows of the vehicle were left open. 4 5 E v R [2010] NZCA 13. R v Tukiwaho [2012] NZHC 1193.

8 [32] Your mother than told you to go and have a lie down, and you did, but you knew that your mother was consuming synthetic cannabis. You knew that the effect of your own consumption of synthetic cannabis would be that you would go into a deep sleep. The material before the Court makes it clear that you were significantly addicted to synthetic cannabis at this time. You were using it on a virtually daily basis. You were acquiring it whenever you could. One of the reasons you were doing this was to gain some escape from the pressures of your everyday world, but you knew that the principal side effect of the consumption of synthetic cannabis, was that you would go into a deep sleep. So you consumed synthetic cannabis knowing that you would be going to sleep. You also knew that it had a similar effect on your mother. You must have know that there was a very real risk that your mother would be in no position to check on Isaiah whilst he was in the vehicle, so you must share some responsibility for that. [33] Your responsibility in relation to the period during which Isaiah was in the vehicle was, however, significantly less than that of your mother. You at least had reason to believe that somebody else was looking after him. However, your culpability does not stop, as does your mother s, at the point where Mr Neil brought Isaiah back into the house at 3.30 pm. It appears that he gave Isaiah to you. You were still significantly affected by synthetic cannabis. You either did not notice that anything was wrong with him, or you decided to ignore it. You simply placed Isaiah in his cot and then you went back to sleep for another three hours. Obviously you should have taken steps when you saw Isaiah in his distressed state to immediately call an ambulance. The only hope that Isaiah had at that point was for emergency services to be called immediately. It may have been too late. We will never know, but the obligation was yours. You needed to ensure that help was called immediately and you failed miserably in that regard. [34] I now need to assess your culpability having regard not only to the decision to leave Isaiah in the vehicle, but also your knowledge that your mother would not be able to care for him properly and your shortcomings after Isaiah was brought back into the house at 3.30 pm. When I put all of those factors together, I consider an appropriate starting point in respect of your culpability is one of four years two months imprisonment.

9 Mr Neil [35] Mr Neil, I now turn to you. It will be obvious from what I have said that you are in a different category to Ms Parangi and Ms Te Whetu. [36] The Crown accepts that you had no knowledge Isaiah was in the vehicle. Neither Ms Parangi nor Ms Te Whetu told you of that fact, so you literally did not know where he was during the period between pm and 3.30 pm. Having regard to the evidence at trial, I do not find that surprising. The evidence was to the effect that you played virtually no part in the upbringing of the children. You left that entirely to Ms Te Whetu and other members of the household. For that reason I do not find it surprising that you appeared to have no knowledge of Isaiah s whereabouts during the intervening period. [37] Your culpability lies in the fact that you were the person who discovered Isaiah in the vehicle in a clearly unwell state. You now know that you ought to have ensured that the emergency services were alerted immediately. Unfortunately, you too had consumed synthetic cannabis. As a result your judgment was clouded. You then went along with Ms Te Whetu s decision to place Isaiah in his cot and you went back to sleep. That was a serious shortcoming for any parent. It is no answer to say that you deferred to Ms Te Whetu s judgment. You ought to have had the ability and wherewithal to know that help was required and required urgently. You acknowledge now that you, too, failed miserably in that regard. [38] The Crown submits that your culpability is not a great deal less than that of Ms Te Whetu and Ms Parangi. I do not accept that. I consider that a starting point of two years nine months imprisonment is appropriate in your case. Aggravating factors [39] Having selected those starting points, I now need to consider the extent to which they should be increased or reduced to reflect aggravating and mitigating factors personal to you.

10 [40] Ms Te Whetu and Mr Neil, you both have previous convictions, but none of those is of relevance for present purposes. The Crown does not suggest there should be any uplift to reflect those, and I agree. Mitigating factors [41] The only remaining issue is to consider the extent to which mitigating factors should reduce the starting points I have selected. Ms Parangi [42] I begin with you again, Ms Parangi. Your counsel submits that the Court should give you credit for several mitigating factors. The first is that, at 52 years of age, you appear before the Court for the first time. You appear to have led a blameless life so far as society is concerned. You were clearly a hard-working person. You held down a job that required you to work six days a week, and you were obviously an important part of this family s dynamic. I consider that those are issues properly worthy of discrete recognition. I propose to reduce the starting point by six months to reflect them. [43] Your counsel submits that I should reduce the sentence further to reflect the genuine remorse that you feel regarding your role in Isaiah s death. I accept this to some extent. You told the person who prepared the pre-sentence report that you have been devastated by Isaiah s death and I accept that without reservation. I consider, however, that you still have limited insight into your role in this offending. I do not see you as looking past the actual decision to leave him in the vehicle. The real culpability in your case is not the fact that you left Isaiah in the vehicle, but in the fact that you did not check on him at any stage during the three hour period that then went by. For that reason I give you limited credit for your remorse. I propose to reduce the sentence by two months to reflect that factor. [44] Your counsel has also provided me with a report from a psychiatrist. I do not propose to go into this in any detail, because it contains matters that are personal to you and that do not come into the public domain. It is clear, however, that you have had a far from easy life. You moved to the Ruatoki area from another district, and

11 assimilation into the Ruatoki district has not been easy for you. Your marriage has not been an easy one, and a combination of factors such as those has led you to a state of serious fragility in terms of your mental health. This does not explain, or excuse, your present offending. It is, however, something that is going to make it more difficult for you to serve your sentence than would otherwise be the case. I propose to make an allowance of four months to reflect that factor. This means that I will reduce your sentence by one year, producing an end sentence of three years imprisonment. Ms Te Whetu [45] Ms Te Whetu, your counsel submits that several factors should also reduce the sentence to be imposed on you. He points out that you demonstrate significant remorse. You have moved away from the area where the offending took place and have endeavoured to rehabilitate yourself. He also points me to mental health issues that have affected you for some time. The difficulty about this aspect of the matter is that the health assessor who prepared the report to advise the Court of these issues is unable to say whether they were induced in the first place by the consumption of drugs. [46] It is clear that the consumption of drugs has had a huge effect on your life. It has made your ability to care for your children that much harder. Your family had in fact become concerned about your ability to care for the children. Your older sister took the older children away and cared for them about a month before this offending, because she was concerned about your ability to care for them. [47] I accept that you must have remorse, as indeed would any mother in your situation. That does not come through particularly in the pre-sentence report, but I am prepared to give you credit for it. I propose to reduce your sentence by four months to reflect the issues that I have just discussed. [48] This leaves your guilty pleas. These were ultimately entered on 27 April 2017, approximately three weeks before your trial was due to commence. I consider, however, that they should be given a significant acknowledgement because they represent your acceptance of responsibility for your part in Isaiah s death. I propose

12 to make an allowance of ten months, or just over 20 per cent, to reflect that factor. This means that your sentence is reduced by 14 months so as to produce an end sentence of three years imprisonment. Mr Neil [49] Mr Neil, you appear for sentence at 30 years of age. I acknowledge that you have expressed your remorse in a tangible way to the person who prepared the presentence report. You blame yourself for what happened, although not all of the blame can be sheeted home to you. I propose to reduce your sentence by three months to reflect that factor. [50] This then leaves your guilty pleas. Again, they were entered on 27 April I propose to make a similar allowance to that given to Ms Te Whetu. I propose to reduce the sentence by seven months to reflect that factor. This produces an end sentence of one year 11 months imprisonment. [51] As a result, you come within the range available for a sentence of home detention. I cannot impose that sentence today because enquiries are still ongoing regarding the address at which you wish to serve such a sentence if it is imposed. [52] The real issue in the present case is whether the requirement to impose a deterrent sentence outweighs the principle that I should impose the least restrictive outcome possible. In the end, one factor persuades me that home detention is a viable option in your case. It is this. There is, as I have already indicated, a real issue as to whether or not Isaiah was beyond help at the point at which you found him. That does not absolve you from your duty to ensure that the emergency services were called. Nevertheless, I consider that your acceptance of responsibility, even though your son may have been beyond help at the time that you found him, to be a matter worthy of discrete acknowledgement. For that reason, and as a matter of principle, I consider that a sentence of home detention is available. [53] I will adjourn your sentencing to a date to be fixed by the Registrar once it is know when the home detention appendix will be available. You are remanded on bail on existing terms to that date.

13 Sentence [54] Ms Parangi, on the charge of manslaughter you are sentenced to three years imprisonment. [55] Ms Te Whetu, on that charge you are sentenced to three years imprisonment. [56] The Crown has suggested that I consider imposing a minimum term of imprisonment. I do not consider that necessary in the context of the present case. I consider that the sentences I have imposed are sufficient to satisfy the sentencing principles set out in s 86 of the Sentencing Act [57] Stand down. Lang J Solicitors: Crown Solicitor, Tauranga