PARANGI v R [2019] NZCA 229

PARANGI v R [2019] NZCA 229 [18 June 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA203/2019[2019] NZCA 229BETWEEN DONNA CATHERINE PARANGIAppellantAND THE QUEENRespondentHearing: 22 May 2019Court: Kós P, Peters and Mander JJCounsel: S J Gray for AppellantJ E L Carruthers for RespondentJudgment: 18 June 2019 at 3 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] Following a jury trial Ms Parangi was convicted of the November 2015manslaughter of her eight-month-old grandson, Isaiah.1 In May 2019, Fitzgerald Jsentenced Ms Parangi to two years, six months' imprisonment.2 Ms Parangi appealsagainst sentence on the ground that it is manifestly excessive.1 Crimes Act 1961, ss 157, 160(2)(b), 171, and 177. The maximum penalty is life imprisonment.2 R v Parangi [2019] NZHC 996 [Sentencing notes].[2] The Judge adopted a starting point of three years, eight months' imprisonment,3and then gave a discount of 30 per cent, or 14 months, to take account of Ms Parangi'sprior good character (15 per cent), the fact that her state of health would make servinga sentence of imprisonment more difficult than would otherwise be the case(10 per cent), and for compassionate and cultural reasons (5 per cent).4[3] Ms Parangi's case on appeal is that the Judge's starting point was too high andthat in consequence the sentence is manifestly excessive. She does not contest thediscount the Judge allowed for personal mitigating factors.Facts[4] Ms Parangi lived in Ruatoki with her partner, and her daughter Ms Te Whetu,Ms Te Whetu's partner, Mr Neil, and their three children, including Isaiah.[5] On 2 November 2015, Ms Parangi and Ms Te Whetu drove to Kawerau to buysynthetic cannabis, to which both were addicted. Isaiah was with them, and asleep inhis car seat when they returned home at about 12.30 pm. Ms Parangi toldMs Te Whetu to leave Isaiah asleep in the car and the two then went inside.[6] The evidence was to the effect that Ms Te Whetu parked the car in the backyardof the house and in full sun, with the windows, doors and sunroof closed.The temperature in Ruatoki that day was approximately 21 degrees Celsius and thetemperature inside the car would have reached at least 41 degrees Celsius within45 minutes or thereabouts.[7] After going inside, Ms Te Whetu consumed synthetic cannabis and went tobed. Mr Neil did likewise. None of this was unexpected. Ms Parangi attended tosome household chores, and then she too smoked synthetic cannabis and fell asleepon the couch. This also was not unexpected. The Judge was satisfied that none ofthese adults checked on Isaiah before Mr Neil got Isaiah out of the car between2.45 pm and 3 pm that afternoon.53 At [44].4 At [64]–[65].5 At [13], [15] and [18].[8] Mr Neil's evidence was that Isaiah was hot, sweaty, and appeared lifeless whenretrieved. He took Isaiah inside, laid him next to Ms Te Whetu, and went back tosleep. Ms Te Whetu noticed Isaiah was still but put him in his cot thinking he was stillasleep. Ms Parangi remained asleep throughout. The Judge found that Isaiah waseither dead when put in his cot or critically unwell and in need of urgent medicalattention.6[9] Ms Te Whetu found Isaiah lifeless in his cot when she woke at 6.30 pm.She woke Ms Parangi and Mr Neil and called an ambulance. Isaiah was pronounceddead at 7.30 pm. All four pathologists, including two called by the defence, agreedthat death was likely to have resulted from dehydration and hyperthermia, beingextreme internal temperature elevation.[10] Ms Parangi, Ms Te Whetu and Mr Neil were each charged with manslaughter.The case first went to trial before Lang J in May 2017. Ms Te Whetu and Mr Neilpleaded guilty shortly before trial, and Ms Parangi defended the charge and was foundguilty. The trial before Fitzgerald J followed Ms Parangi's successful appeal againstconviction to this Court.7Starting point[11] The Judge considered the following matters relevant in assessing Ms Parangi'sculpability.8[12] First, Ms Parangi was party to leaving Isaiah in the car, in the sun with closeddoors and windows.[13] Secondly, she did not check on Isaiah. Ms Gray, counsel for Ms Parangi,submitted the evidence before the Judge was to the opposite effect, by reference to astatement Ms Parangi had made to the police in an interview produced at trial. We donot accept this submission. Having heard all the evidence at trial, the Judge wasentitled to reject Ms Parangi's account and reach the conclusion she did.6 At [23].7 Parangi v R [2018] NZCA 46.8 Sentencing notes, above n 2, at [31]–[43].[14] Thirdly, knowing that no-one else in the household could be expected to getIsaiah out of the car or otherwise care for him, Ms Parangi smoked synthetic cannabis.She did so knowing that this would render her incapable thereafter. Ms Parangiusually went into a deep sleep after consuming the drug, and that is what occurred onthis occasion.[15] In arriving at a starting point of three years, eight months, the Judge took intoaccount the relevant purposes and principles of sentencing; the authorities to whichcounsel had referred her; and Lang J's starting points for Ms Te Whetu and Mr Neil,9being four years, two months and two years, nine months respectively.10 Lang J'sstarting point for Ms Parangi, overtaken by her successful appeal against conviction,had been four years.11[16] Fitzgerald J was satisfied that her starting point was a fair reflection ofMs Parangi's culpability, and was also consistent with the starting points adopted toreflect her daughter and son-in-law's culpability.12[17] Ms Gray submitted the starting point was too high having regard to two of theauthorities to which the Judge referred, E (CA689/2010) v R and R v Tukiwaho.13The Judge considered Ms Parangi more culpable than the defendants in those cases,hence her higher starting point. We shall come to Ms Gray's submission shortly butfirst note that the Judge referred to seven cases in total. Four were at one end of thepossible range, these being cases in which the Court discharged the defendant, with orwithout conviction, but did not otherwise impose any sentence.14 In another,R v Peterson, the defendant abandoned her child in the bush whilst under the influenceof methamphetamine, in the "honest although entirely irrational belief" this would bestkeep the child safe.15 It is apparent from the sentencing notes in that case that, at the9 At [24]–[43].10 R v Neil [2017] NZHC 1494 at [34] and [38].11 At [29].12 Sentencing notes, above n 2, at [44].13 E (CA689/2010) v R [2011] NZCA 13, (2011) 25 CRNZ 411; and R v Tukiwaho [2012] NZHC1193.14 R v X [2015] NZHC 1244; R v Scott [2015] NZHC 3239; R v Illston HC Wanganui CRI-2011-034-273, 26 October 2011; and R v Waiba HC Auckland T025743, 8 August 2003.15 R v Peterson HC Whangarei CRI-2007-088-899, 20 December 2007 at [5].very least, the defendant was labouring under a personality disorder, and quite possiblymore than that. Baragwanath J adopted a starting point of five years' imprisonment.16E (CA689/2010) v R and R v Tukiwaho[18] In E (CA689/2010) v R, E left her 13-month-old son in the bath, filled to hischest, for about 15 minutes while she attended to another child. The boy had drownedby the time E returned.17 This Court reduced E's starting point from four to three yearsfor several reasons, including that E left the child to attend to her other child, andbecause it was satisfied that her depressive illness had impaired her judgment and soreduced her culpability.18 The Judge considered Ms Parangi more culpable becauseIsaiah had been left in a situation of danger for a much longer time and E had beendiverted by another child. The Judge contrasted that with what she described asMs Parangi's decision to engage in recreational drug use.19[19] In R v Tukiwaho, Ms Tukiwaho had consumed alcohol all day and wasintoxicated.20 Following a domestic violence incident at her home she went, with herbaby, to her sister's address late at night where she was unable to gain access to thehouse. Given that, Ms Tukiwaho went to sleep in the back seat of a vehicle at theaddress, with her baby on her shoulder, intending that this would keep him warm.The baby suffocated during the night.21 Lang J, the sentencing judge, saidMs Tukiwaho's culpability lay in her engaging "in a sustained period of drinking thateffectively robbed [her] of the ability to reason and to make sound judgments" abouther son's welfare.22 Fitzgerald J considered Ms Parangi more culpable thanMs Tukiwaho. This was because she decided to leave Isaiah in the car, and thenconsume the drugs, whilst sober.23[20] Ms Gray submitted that there is nothing between this case andE (CA689/2010) v R and Tukiwaho. E left her child in an equally if not more16 At [10].17 E (CA689/2010) v R, above n 13, at [11]–[12].18 At [67].19 Sentencing notes, above n 2, at [32].20 R v Tukiwaho, above n 13, at [4].21 At [5]–[9].22 At [15].23 Sentencing notes, above n 2, at [33].dangerous situation than Isaiah. Ms Tukiwaho and Ms Parangi both made poordecisions under the influence of voluntarily consumed drugs. Ms Gray also submitsthat the Judge was wrong to describe Ms Parangi's drug use as "recreational". Havingregard to a psychiatric report, Ms Gray contended Ms Parangi's drug use was analmost necessary "release" from very straitened circumstances.[21] We do not accept these submissions. E's case is plainly different because ofher mental illness. As to Ms Tukiwaho, she unexpectedly found herself sleeping inthe car, with her child, and in circumstances not of her making. These factorsdistinguish the two cases from the present. As to addiction, although this mayconstitute a mitigating personal factor, relevant to that aspect of sentencing rather thanthe starting point, it would not have taken more than a minute or two to get Isaiah outof the car or take other steps to ensure his safety. Ms Parangi's desire or need (howeverit is characterised) to smoke synthetic cannabis should always have been a secondaryconsideration to Isaiah's safety.[22] In considering this appeal, we have also taken into account Lang J's startingpoint of four years, two months' imprisonment for Ms Te Whetu. On the evidence atthe first trial, Lang J saw little to distinguish the culpability of the two women.Fitzgerald J was more generous to Ms Parangi, drawing a clear distinction in herfavour with a six-month lower starting point. No more than that was required.[23] To conclude, the critical features of this case are that Ms Parangi made adecision to leave Isaiah in a car, in the sun, and decided to smoke the syntheticcannabis without first making sure Isaiah was safe. At the time she made this latterdecision, Ms Parangi knew that she would be incapacitated thereafter, and she had noreason to expect that anyone else would ensure Isaiah's safety.[24] Taking all of these matters into account, we do not consider that the startingpoint, and therefore the sentence, was manifestly excessive.Result[25] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent