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Lynch, Nessa --- "Case note: the sentencing of vulnerability: P v R" [2016] NZCrimLawRw 12; [2016] NZCLR 103

Last Updated: 21 December 2018


CASE NOTE: THE SENTENCING OF VULNERABILITY: P V R


NESSA LYNCH


I. INTRODUCTION

New Zealand has a lauded youth jurisdiction, which has recognised expertise in accountability and reintegration for children and young persons who offend, both in minor and more serious cases. 1 In recent years, youth justice practitioners and professionals have become more cognisant of the relevance of the science of brain development both in terms of age appropriateness, and where children and young persons have neuro-disabilities (such as foetal alcohol spectrum disorder, traumatic brain injury or learning difficulties). 2

Nonetheless, New Zealand law holds that where a child or young person is accused of homicide, he or she will be tried, and sentenced, in the adult jurisdiction with the adult sentencing regime.3 Such cases inevitably involve the juxtaposition of serious crime with extreme vulnerability.4

The successful appeal against sentence in P v R involved such a child5 (aged

13 at the time of the offence) who was convicted of manslaughter.6 P had a very troubled background, featuring care and protection concerns and drug and alcohol abuse. Significantly, he had neuro-disabilities, including traumatic brain

injury, and symptoms of foetal alcohol spectrum disorder. The Court of Appeal

(Wild, Miller and Winkelmann JJ) substituted his sentence of six years imprisonment with a minimum period of imprisonment of three years and three months, with a fixed sentence of four years and six months imprisonment, taking a principled approach on the level of P’s culpability, given his particular characteristics of extreme youth and neuro-disability.

Senior Lecturer in Law, Victoria University of Wellington.

1 See generally Nessa Lynch, Youth Justice in New Zealand (2nd Ed, Thomson Reuters, Wellington, 2016).

2 Nessa Lynch, Neurodisability in the Youth Justice System in New Zealand: How Vulnerability

Intersects with Justice (Dyslexia Foundation of New Zealand, 2016) and Kate Peirse-O’Byrne

‘Identifying And Responding To Neurodisability In Young Offenders: Why, And How, This Needs

To Be Achieved In The Youth Justice Sector’. LLB (Hons) Dissertation, University of Auckland,

2014.

3 Children, Young Persons and Their Families Act 1989, s 275.

4 See e.g. R v Nelson [2012] NZHC 3570 (13 year old sentenced to an 18 year fixed sentence for murder).

5 In criminal procedure and in liability, New Zealand law distinguishes between children (those

aged 10 – 14) and young persons (those aged 14 – 17): Children, Young Persons and Their Families Act 1989, s 2. See generally Nessa Lynch, Youth Justice in New Zealand (2nd Ed, Thomson Reuters, Wellington, 2016).

6 P (CA479/2015) v R [2016] NZCA 128. In some of the earlier decisions on the case, the child was referred to as ‘DP’. P is used here.


II. FACTS AND BACKGROUND

The facts of the incident were widely reported in the mainstream media as well as being detailed in Lang J’s High Court sentencing notes.7 In the early hours of 10 June 2014, P and a co-defendant (R) formed a plan to steal goods from a store. They armed themselves with a knife and a pole. They bypassed the original target store, and decided to rob a dairy. After threatening the proprietors of the dairy, the Kumar family, P eventually stabbed Mr Kumar with a knife, killing him. P was charged with murder while R was charged with manslaughter. Though the defendants were children, as per the jurisdictional exception for homicide cases, they were tried by a High Court jury. R (aged 12 at the time of the incident) was found not guilty of manslaughter, the jury agreeing that he had essentially withdrawn from the incident by retreating from the dairy before the stabbing occurred. P was convicted of manslaughter, the jury accepting that he did not have murderous intent when he delivered the fatal wounds. As noted, P was sentenced to six years imprisonment, with a minimum period of imprisonment of three years and three months. It was recommended that he serve this sentence in a youth justice residence rather than a prison to better his chances of reintegration.8

The High Court sentencing decision contained extensive facts on P’s background, which are highly relevant to analysis of culpability. P had suffered considerable disadvantage and trauma over his early childhood. Due to maternal consumption of alcohol, P showed characteristics of foetal alcohol spectrum disorder.9 At the age of eight years, P experienced a serious head trauma due to being hit by a vehicle. This resulted in a traumatic brain injury which was not properly treated. As recorded in Lang J’s sentencing notes:10

The evidence given by Dr McGinn [a neuro-psychologist] at trial was to the effect that an injury of this type required intensive therapeutic and rehabilitative intervention. She said that an adult would be off work for about two years as a result of such an injury. As a bare minimum you ought to have been kept in a secure environment with very little outside stimuli. Instead you were returned to school just two weeks after the incident. Your mother then continued an established trend of moving you from school to school.

In addition, it was reported that P abused drugs and alcohol, including by means of synthetic cannabis supplied by his mother. P’s home environment was not conducive to his development or to his recovery from traumatic brain injury. His home was the site of drug dealing.11 Care and protection concerns and educational disengagement were also factors, with reports of a number of notifications to Child, Youth and Family relating to both P and his siblings.12

7 R v DP [2015] NZHC 1796. See e.g. Jared Savage ‘How we raised a killer’ New Zealand Herald

29 August 2015.

8 R v DP, above, note 7, at [38].

9 R v DP, above, note 7, at [11].

10 R v DP, above, note 7, at [12].

11 R v DP, above, note 7, at [13].

12 Child, Youth and Family is the government agency responsible for care and protection of children and young persons. As of 2017, it will be replaced by the Ministry of Vulnerable

Children.


III. PREVIOUS DECISIONS IN THE CASE

The case had an extensive litigation history, mainly concerned with issues around name suppression.13 Name suppression was provided to both accused during the trial, as is customary with young defendants in cases of this nature.14

R (the acquitted child) was given permanent post-trial name suppression while P’s name suppression was removed by the High Court post-conviction.15 Here, Lang J placed emphasis on the seriousness of the offence, finding that public protection outweighed P’s interest in privacy. Lang J appeared to regard the convicted P primarily as an adult offender, and the release of his name as part of the penal sanction. Images of P were suppressed, however.

This decision was overturned by the Court of Appeal (Harrison, Miller and Wild JJ) who ordered the permanent suppression of P’s name, as well as visual images.16 It was held that publication of his name would meet the test of

‘extreme hardship’17 because of P’s extreme youth, particular vulnerability due to his brain injury, and significant risk of suicide, even when being held in the relatively benign environment of the youth justice residence. It was noted the suppression of visual or photographic images that might lead to P’s identification was necessarily an endorsement of the danger that identification would lead to extreme hardship and further, new technology means that release of his name would probably mean his image would be readily available through an online search.18

In this, the Court of Appeal regarded P primarily as a ‘child’, whose interests in privacy and successful reintegration outweighed the public’s right to know his identity. It is likely that the Court of Appeal was mindful of the Kurariki case,19 where it is likely that the child’s notoriety contributed to his unsuccessful reintegration to society.20


IV. THE HIGH COURT SENTENCING DECISION

Manslaughter, as has been regularly discussed, does not have a guideline judgment or tariff case, due to the wide variety of circumstances encompassed by the offence.21 Lang J settled on a starting point of six years, with an uplift

13 But see also P v R [2015] NZHC 1424.

14 R v P [2014] NZHC 1445.

15 R v DP & RP [2015] NZHC 1765.

16 DP v R [2015] NZCA 476. For full analysis of the name suppression decision see Nessa Lynch

‘Permanent name suppression for a child convicted of homicide’ (2016) New Zealand Law

Journal 13.

17 Criminal Procedure Act 2011, s 200(2)(a).

18 DP v R, above note 16, at [29].

19 Bailey Kurariki was 12 when he was convicted of manslaughter in 2002.

20 ‘Child killer becomes sex pest’ Herald on Sunday, 28 February 2010.

21 R v Edwards [2005] NZCA 70; [2005] 2 NZLR 709 (CA) at [14].

of eighteen months for the circumstances of an aggravated robbery, and for the use of a weapon resulting in an end sentence of seven and a half years.

In fixing on a 20% discount for P’s characteristics of youth and brain injury, Lang J placed considerable reliance on the mitigating effect of the jury’s verdict of manslaughter rather than murder. Lang J noted that in finding that P did not intend to cause serious bodily harm to Mr Kumar, the jury appeared to accept the defence argument that P was subject to peer pressure when the robbery was being planned and discussed, and that his decision-making abilities were affected by his brain injury and a high level of mental fatigue. While Lang J acknowledged P’s brain injury in assessing culpability, he concluded that this aspect had already been factored into the manslaughter verdict:22

...I am satisfied that the impact of your traumatic brain injury has already had a large impact in your case by virtue of the jury’s verdict. Had it not been for the effects of your injury that were explained to the jury, I have no doubt that you would have been convicted of murder. The fact that you were convicted of the lesser charge reflects the fact that the jury took into account the traumatic brain injury. Nevertheless it must be given some recognition because it will make life more difficult for you from this point on.

In terms of the justification for the minimum non-parole period of three years and three months, Lang J considered that protection of the community required P to be kept in a secure environment for a reasonable period of time. P’s brain injury implied a risk that a similar situation could occur if P was placed in a stressful context in the future: 23

The material that is before me makes it clear that your head injury makes you vulnerable in times of stress or complexity to act impulsively or instinctively. Your present offending is proof of that... The protection of our society and indeed your own protection, in my view, can only be met by assuring that you are in a safe and secure environment for the next few years.

Lang J also considered that the custodial placement was the only method of ensuring reintegration and rehabilitation in the short term:24

...the need to keep you in an environment where you can continue to develop and where you can be kept away from drugs, alcohol and negative influences is essential if you are to have a chance of leading a worthwhile life in the community in the future.

It was apparently accepted that the year on remand that P spent in a youth justice facility had been highly beneficial. Lang J considered it ‘essential’ P served his sentence in the youth justice facility insofar as possible so that the rehabilitation that had been commenced could continue.25

Overall, Lang J was firm that P had already benefitted from significant mitigation in relation to his brain injury in the form of the manslaughter verdict, and was convinced that public protection required a minimum non-parole

22 R v DP, above, note 7, at [31].

23 R v DP, above, note 7, at [35].

24 R v DP, above, note 7, at [37].

25 R v DP, above, note 7, at [36].

period. Significantly, P’s brain injury might also be filed under an aggravating factor here, as Lang J appeared to consider that it increased P’s danger to the public.26


V. THE SENTENCING APPEAL

The Court of Appeal was tasked with three considerations in relation to P’s sentence.

First, was Lang J’s starting point of seven and a half years imprisonment too high? This was relatively uncontentious, with the Court of Appeal acknowledging the lack of a guideline judgment for manslaughter, and that cases cited were overall not directly comparable. The six year starting point, elevated to seven and a half years due to the aggravated robbery and use of a weapon, was within the available range for this type of offence.27

Second, was the discount of 20% for mitigating factors too low? There were a number of aspects to this enquiry. The first of these was whether Lang J had erred in holding that the jury had already placed significance on P’s traumatic brain injury by returning a verdict of manslaughter rather than murder. The Crown had relied upon Afamasaga 28 where Woolford J had also given the offender’s mental impairment less weight as, like Lang J, he considered it a primary factor in the jury’s return of a manslaughter verdict. The Court of Appeal clearly rejected this approach:29

The trial on the one hand, and any resulting sentencing on the other hand, are two different and discrete exercises. In the trial, the Crown needed to satisfy the jury that P had meant to cause Mr Kumar grievous bodily injury for the purpose of robbing him or of facilitating P and R’s flight from the dairy and avoidance of detection. The jury was obviously not satisfied that P had that criminal intent, thus its verdict of not guilty of murder. But P was undoubtedly guilty of manslaughter since he had stabbed Mr Kumar to death. When it came to sentencing P, Lang J’s task was to impose a sentence appropriate both for P’s crime of manslaughter and for P as the person who had committed that crime. When considering the mitigating factors personal to P, the Judge needed to factor in, fully, P’s traumatic brain injury.

In doing so, the Court of Appeal approved of the previous decisions in E30 and Rongonui31 where a similar approach had been taken to offenders who had been convicted of manslaughter rather than murder, where mental health or mental impairment was material. The Court of Appeal described the approach in Afamasaga as ‘erroneous’.32

26 R v DP, above, note 7, at [35].

27 P v R, above note 6, at [30].

28 R v Afamasaga [2014] NZHC 2142.

29 Above, note 6, at [37]-[38].

30 E (CA689/10) v R [2011] NZCA 13.

31 R v Rongonui CA321/00 9 May 2001.

32 Above, note 6, at [41].

The second aspect to the question of the appropriateness of the 20% discount was the mitigation value to be applied for P’s young age and brain injury itself. The Court of Appeal concluded that a 40% discount for personal mitigating factors was appropriate, quoting approvingly from the expert assessor who had provided a report for the High Court sentencing process. The expert, Dr McGinn, had said:33

In my opinion, although knowing right from wrong, [P] was significantly reduced in his capacity to choose right from wrong, due to his lasting brain injury impairments. He could not use his knowledge normally to control his actions on the day and in the situation in the dairy. He had less control than another person his age would have had in the same circumstances due to his brain damage.

Thirdly, was a minimum period of imprisonment appropriate? Section 86(2) of the Sentencing Act provides four justifications for the imposition of a minimum period of imprisonment: accountability, deterrence, denunciation and public protection. Lang J had primarily relied upon the public protection aspect, considering that P’s characteristics meant that he posed a risk to the public. The Court of Appeal disagreed that a minimum term was required and approved of the expert assessor’s comment that denunciation and deterrence has little relevance in the case of a young child. P’s deficiencies in capacity (particularly his youth and his brain injury) meant that the rational choice theories underpinning these principles were of limited effect. While not at odds with the importance of protecting the public, the Court of Appeal concluded that public safety would be more likely to be ensured through P’s successful rehabilitation and reintegration:34

P is a young person who is developing, and whose rehabilitative needs are therefore changing. We view imposition of an MPI as inconsistent with the flexibility required best to facilitate P’s rehabilitation.

In this, the Court of Appeal recognises that P as the 13 year old who carried out a manslaughter may be a very different young person 2 – 3 years later.


VI. SIGNIFICANCE

As foreshadowed in the introduction, the science of brain development and the recognition of neuro-disability is becoming more prevalent in the criminal justice system in New Zealand. P v R demonstrates judicial understanding of the nature and consequences of traumatic brain injury, with approval of expert evidence explaining P’s level of culpability and his chances of reintegration. This partly echoes the Privy Council’s recent decision in Teina Pora v R,35 where the appellant’s foetal alcohol syndrome disorder, and its catastrophic effects, were emphasised.

33 Above, note 6, at [44].

34 Above, note 6, at [54].

35 [2015] UKPC 9.

In relation to youth as a mitigating factor, the Court of Appeal notes that the discount could be more in another case, citing Pouwhare in which it was held that there was no maximum discount for youth.36 This also illustrates the stark difference between the manslaughter cases where there is no mandatory sentence or guideline judgment, and the murder sentencing regime. Had P been convicted of murder (which appeared to have been a likely prospect), he would have been subject to s 102 of the Sentencing Act 2002 which imposes a presumptive sentence of life imprisonment for murder cases unless it would be

‘manifestly unjust’. The youth of the offender of itself has been consistently held not to contravene the ‘manifestly unjust’ standard. 37

Taken together with the name suppression decision, the Court of Appeal has taken an expansive view of societal interests and public protection, holding that public welfare and safety is better safeguarded through the successful reintegration of the child, rather than a punitive response. Similarly, this decision demonstrates the use of discretion to temper the potentially punitive application of adult criminal procedure and sentencing principles to extreme youth.

36 Pouwhare v R [2010] NZCA 268.

37 See e.g. R v Slade [2005] NZCA 19; [2005] 2 NZLR 526 (CA), Te Wini v R [2013] NZCA 201.


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