M (CA78/2022) v R [2023] NZCA 151

M (CA78/2022) v R [2023] NZCA 151 [5 May 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF ANY COMPLAINANT/ PERSON UNDERTHE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMEDWITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THECRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA78/2022[2023] NZCA 151BETWEEN M (CA78/2022)AppellantAND THE KINGRespondentHearing: 30 March 2023Court: French, Dunningham and Cull JJCounsel: C J Tennet and D E Maniapoto for AppellantP K Feltham and R G Buckman for RespondentJudgment: 5 May 2023 at 11.30 amJUDGMENT OF THE COURTA The application to adduce further evidence on appeal is declined.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)[1] On 27 January 2022, the appellant, M, was sentenced to three years and twomonths' imprisonment on the following charges:1(a) injuring with intent to injure (two charges);(b) assault with a weapon;(c) ill treatment and neglect of a child; and(d) attempting to pervert the course of justice (two charges).[2] M appeals that sentence on the grounds the starting point was too high and thediscounts were insufficient.[3] In support of the second ground, M seeks to adduce fresh evidence in the formof a literature review which explains the disempowering impact of colonisation andintergenerational violence on wāhine Māori raised in violent gang life and their abilityto care for whānau. The application to adduce that evidence is opposed, and weaddress that issue before dealing with the second ground of appeal.Background[4] On or about 22 June 2020, M inflicted beatings on her young daughter, T. Atthe time, T and her two sisters were subject to a custody order under s 101 of theOranga Tamariki Act 1989 placing them under the care of Oranga Tamariki, althoughthey were in M's day-to-day care. The assaults included hitting T repeatedly on herbody, punching her repeatedly on her lip, and hitting her on the head with a hammer.After being assaulted, T was pushed outside where she went to sleep. The injuriessuffered by T included extensive bruising from head to toe, a nasal bone fracture,lacerations on her face, a lacerated and swollen lower lip, and multiple abrasions.1 R v [M] [2022] NZDC 1233 [Sentencing notes].[5] M did not seek medical treatment for her daughter. Instead, because theinjuries were obvious, M contacted her sister and arranged for T to be sent to the SouthIsland to stay with her.[6] M put T on a flight to Christchurch on 24 June 2020, after making considerableefforts to cover the injuries. This included dressing T in a long-sleeved turtleneck topand applying thick face paint to all of T's face.[7] Flight attendants noticed some of T's injuries, including her swollen and splitlip. They sought T's permission to remove the paint. When the extent of her injurieswas clear, arrangements were made for police and ambulance services to be atChristchurch airport when the flight landed.[8] M's sister saw the police were at the plane when she was waiting to collect Tand began communicating with M. M sent a series of text messages to her sisteroutlining a false story to tell the authorities, to the effect that T was clumsy and hadhurt herself. M also sent her mother a false statement by text message and asked hermother to memorise it word for word and tell it to the authorities.Conviction and sentence[9] M was convicted on all charges following a jury trial in the District Court atNapier.[10] The trial was not straightforward. There was an unsuccessful attempt by Mshortly before the trial was to start to have the trial adjourned. There was then a furtherdisruption during the trial when M presented to court security claiming to be unwell.She was sent away and subsequently did not arrive at Court. The trial was adjournedfor the day. A doctor saw her but could not identify what was wrong with her, and shewas directed to the hospital for further tests. M was initially reluctant to go to hospital.The Judge at that point reinstated a warrant for her arrest, having withdrawn a warrantearlier in the day. The trial was able to resume after she was remanded in custodyovernight.[11] Those incidents were referred to at the outset of sentencing with the Judgenoting that, from the start, there was no defence to the charges but, nevertheless, Mhad been "as manipulative as [she] possibly could leading up to the trial and duringthe course of it".2[12] The Judge considered a three-year starting point was appropriate for theviolence offending. This was uplifted by six months for the neglect charge and afurther six months for the perverting the course of justice charges. This resulted in anadjusted starting point of four years' imprisonment.[13] A report was prepared for sentencing by Dr Alvina Edwards, in accordancewith s 27 of the Sentencing Act 2002. The Judge accepted M had a disadvantagedbackground, including addictions and difficulties with relationships, which should betaken into account at sentencing. He gave a discount of 15 per cent for these matters.Despite defending the charges, M filed a letter of remorse prior to sentencing whichthe Judge described as "unique", in that it thanked all the participants in herprosecution including the police, the Judge and the prosecutor. While the Judge wassceptical of her expressed remorse, he granted a further five per cent discount for that.That resulted in an end sentence of three years and two months' imprisonment.Was the starting point too high?[14] Mr Tennet, for M, submits that the starting point and the uplifts were excessive.In arguing that the three-year starting point for the violence offending was too high,he refers to the decision in EM (CA241/2013) v R. In that case, the appellant wassentenced to 18 months' imprisonment on charges of assault and ill treatment oftwo children, imposed cumulatively on a sentence of two years and four months'imprisonment for two charges of abduction in relation to the same children.3Mr Tennet submits that while this was a cumulative sentence, it suggests a startingpoint of two years would have been more appropriate for the violence offending in thiscase.2 At [5].3 EM (CA241/2013) v R [2015] NZCA 202.[15] Mr Tennet then submits that the six-month uplift for the neglect charge was toohigh, and to separate that out from the violence was artificial. He also argued thesix-month uplift for perverting the course of justice was wrong given the behaviourwas at the lower end of the scale.Discussion[16] We do not consider the reference to the starting point adopted in EMdemonstrates the starting point was in error. The cumulative sentence of 18 monthsfor the violence offending was clearly adopted having regard to issues of totality. It isof no real assistance here where the violence offending is the primary offending forthe purposes of setting a starting point. Furthermore, the Court of Appeal in EMobserved that even having regard to the principle of totality, the Judge could havetaken a starting point for the violence offending in the order of two years.4[17] We accept the respondent's submissions that the appropriateness of the startingpoint can be confirmed by reference to Nuku v R, which provides guidance onsentencing for offences involving an intent to injure, as here.5 Given the followingaggravating features, there can be little doubt the offending falls within band three andmay attract a starting point of two years up to the statutory maximum:(a) an attack to the head;(b) use of a weapon;(c) vulnerability of the victim;(d) breach of trust; and(e) attempts at concealment.The respondent's submissions also note the scale of the offending and the impact onthe victim are aggravating features. We accept those aggravating features are also4 At [33].5 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.present, albeit perhaps not materially beyond what might be expected given thecharges involved.[18] We also accept that the offending engages s 9A of the Sentencing Act. Thatsection provides that when sentencing for violence against a child under the age of 14,the court must take into account the following aggravating factors to the extent theyare applicable in the case:(a) the defencelessness of the victim;(b) in relation to any harm resulting from the offence, any serious or longterm physical or psychological effect on the victim;(c) the magnitude of the breach of any relationship of trust between thevictim and the offender;(d) threats by the offender to prevent the victim reporting the offending;(e) deliberate concealment of the offending from the authorities.[19] In this case, the defencelessness of the victim, the magnitude of the breach oftrust, and the clear attempts to conceal the offending are all aggravating features.[20] Having regard to the bands in Nuku and the aggravating features in this case,we are readily satisfied that the three-year starting point was appropriate.[21] In terms of the challenges to the uplifts, we accept the period of neglect byfailing to take the victim to a doctor was short, thanks largely to the intervention ofstaff on the Air New Zealand flight. However, it was a discrete charge, and the failureto obtain medical assistance, when T had suffered a nasal bone fracture and a split lipthat needed significant treatment under anaesthesia, was a serious aspect of theoffending. We are satisfied the six-month uplift for that charge was warranted.[22] Similarly, the six-month uplift for the perverting the course of justice chargeswas clearly available. The courts have regularly recognised that such charges warrantprioritising denunciation and deterrence because "any attempt to disturb the processof administration of justice is to be deplored and in all but the most exceptionalcircumstances, to be met with a moderately lengthy term of imprisonment".6 WhileM's actions occurred before charges had been laid, she nevertheless engaged in acalculated course of conduct, creating stories for both her sister and mother to tell theauthorities, in order to avoid prosecution. We are satisfied that a six-month uplift waswell within range.The application to admit fresh evidenceThe evidence[23] In support of the second aspect of the sentence appeal, Mr Tennet applies toadmit the report of Bonnie Maihi, an academic with expertise in the study of Māoriand indigenous development, as fresh evidence. The grounds on which the order issought include that the report: will elucidate and inform this Honourable Court on the difficulties facedby wāhine Māori from backgrounds of violence and abuse ,and in particularthis Appellant (as detailed in the section 27 Report of Dr Alvina Edwards); [24] The application goes on to say:While a section 27 report may be sufficient in many cases, it is submitted thatthe Courts need to take cognisance of the established material that relates towahine Māori who have come from disadvantaged backgrounds including theimpact on them from such background, intergenerational trauma and othermatters which woulds (sic) otherwise need to be the subject of expert evidenceon a case-by-case basis.[25] The application goes on to suggest that the report could constitute an expertreview in a similar way to the expert reports which were provided to the Court inChurchward v R regarding cognitive development in young people.7[26] The report reviews academic literature to establish a causal link between aviolent, deprived background in the context of cultural disconnection, and violentresponses to difficult or challenging situations. However, to the extent it draws any6 M (CA469/2013) v R [2013] NZCA 385 at [9].7 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 466.conclusions regarding M's circumstances, it relies entirely on the s 27 report providedby Dr Edwards.The legal principles applying[27] The criteria for admitting fresh evidence are well established. The principlesgoverning the admission of new evidence on appeal were recently restated in Mark vR as follows:8[16] The principles for assessing the admissibility of fresh evidence forappeals against conviction are now well established. There is no reason whydifferent principles should be engaged where an appellant wishes to adducefresh evidence for an appeal against sentence. Thus, if the fresh evidence isnot credible it should not be admitted. If it is credible, an assessment needs tobe made as to whether or not it could have been presented to the sentencingCourt with reasonable diligence. If the evidence is both credible and fresh itshould be admitted unless the appellate court is satisfied it would have had noeffect on the sentence. If the evidence is credible but not fresh, the appellatecourt should assess its strength and its potential impact on the sentence. If theappellate court considers that the sentence could be manifestly excessive if theevidence is excluded, then it should be admitted notwithstanding that it is notfresh.Should the evidence be admitted?[28] We accept the report is cogent insofar as it summarises literature on the impactsof colonisation which destroyed whānau and hapū structures and forced Māori womaninto the pākehā model of the nuclear family, unnecessarily exposing them to intimatepartner violence and harm.[29] The report is not strictly fresh as it could have been prepared prior tosentencing, though this is not necessarily fatal to the application. However, ourprimary concern is that we are not satisfied the report is relevant or adds anythingmaterial to the sentencing for M.[30] The evidence of the impact of colonisation on Māori has been acknowledgedin recent decisions of the higher courts. In particular, the decision in Solicitor-Generalv Heta includes a detailed discussion on the effects of colonisation on Māoricommunities and discusses how systemic Māori deprivation should be taken account8 Mark v R [2019] NZCA 121. Footnote omitted.of in sentencing.9 However, Heta discourages lengthy discussions of such generalevidence, saying:[50] The evidence of the presence of systemic deprivation (or socialdisadvantage more generally) on an offender need not be elaborate. Thesymptoms of systemic Māori deprivation are reasonably self-evident,including (among other things) intergenerational social and culturaldislocation of the whānau, poverty, alcohol and or drug abuse by whānaumembers and by the offender from an early age, whānau unemployment andeducational underachievement, and violence in the home. Evidence fromwhānau about the offender's life is enough.[31] Similarly, in Berkland v R, the Supreme Court discussed background factorsthat may have a causative contribution to offending.10 These included historicaldispossession of Māori. In that regard, the Court acknowledged Whata J's carefulconsideration of those matters in Heta and the discussion of the Court of Appeal inZhang v R, where this Court said:11 ingrained, systemic poverty resulting from loss of land, language, culture,rangatiratanga, mana and dignity are matters that may be regarded in a propercase to have impaired choice and diminished moral culpability.The Court in Berkland agreed that judges could assume that modern Māori "systemic"poverty was the result of colonial dispossession without the need to prove actualcausation every time.12[32] Importantly, though, when the Court went on to discuss s 27 reports, it recordedthe following:13They must be case and offender focused. Generalised statements andtemplates are of no value and so will waste the courts' time and resources. Forexample, intergenerational background information, where relevant tosentencing principles and purposes, will be important, but long generalisedhistorical dissertations will not help. Rather, what is required is succinctsummaries focused on the experience of the offender's own community. Aconnection must be drawn between [the narratives of their hapū and iwi]and the offenders' lived experience.9 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.10 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.11 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159].12 Berkland, above n 10, at [123].13 At [146].[33] In our view, Ms Maihi's report does no more than provide a generalisedhistorical dissertation on the effects of colonisation on Māori and, in particular, onwāhine Māori. However, those links are well understood by the Courts as recognisedin Heta, Zhang and Berkland. In terms of what is truly relevant, which is the causativeconnection between colonisation, systemic deprivation, and M's offending, evenMs Maihi relies on the s 27 report. The s 27 report which was before the Court atsentencing was case and offender focused. It provided ample information regardingM's background and how it might have contributed causatively to her offending. Thereport covered intergenerational cultural and social dislocation and disconnection, andthe continuing harmful effects of colonisation, along with other factors specific to Msuch as family instability and hardship, alcohol and drug abuse, and exposure to ganglife. In our view, the literature review provided by Ms Maihi does not tell us any moreabout these factors in a way that is useful for sentencing M.[34] Finally, we concur with the respondent's submissions that the report does notassist in the same way as the expert evidence did in Churchward v R. The scientificcharacteristics of adolescent brain development which was presented in that case wasa matter of general application to young people, whereas the causative contribution ofcolonisation and systemic deprivation to offending must be assessed in light of anindividual's particular lived experience.14[35] For these reasons, we decline the application to admit fresh evidence.Did the Judge err in allowing discounts for mitigating factors?[36] We turn now to the issue of whether there was an error in the discounts givenby the Judge for personal mitigating factors. The substance of M's submission is thatthere is a causal link between her background and her use of violence in parenting.She had experienced a disruptive education and was raised in violent gang life, whichled to her using aggressive and violent behaviour to address challenges.[37] However, all this is apparent from the s 27 report and was, albeit briefly,acknowledged in sentencing. The Judge recorded that the s 27 report spoke of M's14 As recognised by Whata J in Heta, above n 9, at [49].early difficulties, her addictions, and her difficulties with relationships andacknowledged that "in many ways you have been a victim yourself".15 The reportrevealed she had a close relationship with her father, who was not violent towards her,but was violent to her mother and other family members, and was a patched memberof Black Power. She had her first child not long after she started high school, but shecompleted qualifications through correspondence school and has held downemployment as a hairdresser and then as a supervisor of seasonal workers in Hawke'sBay orchards. She has had three further children and has struggled financially all herlife. A particularly traumatic event in her life was when the father of her two oldestgirls committed suicide. She acknowledges being exposed to alcohol and drugs froman early age and using methamphetamine from when she was 15, although there doesnot appear to be addiction and her mother comments that she has never seen herdaughter do drugs in front of her children, nor does her daughter drink heavily.[38] In our view, the cultural report compellingly identifies factors which may havecontributed causatively to her offending. These include the continuing harmful effectsof colonisation, assimilation, and urbanisation, along with M's personal experiencesincluding witnessing violence in her childhood and experiencing the trauma of losingthe father of two of her children to suicide.[39] That said, we are not persuaded that the Judge erred in allowing a 15 per centdiscount for these factors. First, M was not as disadvantaged as many offenders. Shewas loved by her father in particular and was brought up speaking Te Reo through herenrolment at Kōhanga Reo and Kura Kaupapa. She was capable of acquiring tertiaryqualifications and was a valued employee.[40] Second, the offending was serious and, as acknowledged in Berkland, whereoffending is serious, the offender's background may have less impact on thesentence.16[41] In our view, the 15 per cent discount fairly reflects the extent to whichbackground factors contributed to M's offending while also recognising the offending15 Sentencing notes, above n 1, at [12].16 Berkland, above n 10, at [94].involved serious and unprovoked violence against a young child, making principles ofdeterrence and denunciation particularly relevant.[42] Furthermore, we consider a five per cent discount for remorse was generous toM. M defended the charges at trial and continued to deny the offending until sheabandoned her conviction appeal on 29 June 2022. The Judge clearly had reservationsabout the genuineness of her letter of remorse but nevertheless gave a five per centdiscount in light of it.[43] In our view, the discounts for matters raised in the s 27 report and for remorsewere entirely appropriate and should not be disturbed on appeal.Result[44] The application to adduce further evidence on appeal is declined.[45] The appeal against sentence is dismissed.Solicitors:Crown Solicitor, Wellington for Respondent