R v KINRAID [2017] NZHC 233

R v KINRAID [2017] NZHC 233 [22 February 2017]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYCRI 2015-443-978[2017] NZHC 233THE QUEENvPHILIP MURRAY KINRAIDHearing: 22 February 2017Counsel: J Marinovich for CrownP M Keegan and J M Woodcock for DefendantSentence: 22 February 2017SENTENCE OF ELLIS J[1] Philip Kinraid you appear for sentence today for the manslaughter of your two year old daughter Esmé. Esmé died on 26 June 2015. She suffocated while you were holding her face down on her pillow in an attempt to settle her, when she was resisting going to bed.[2] You pleaded guilty to the manslaughter charge on 23 November 2016.[3] The maximum penalty for manslaughter is life imprisonment, which reflects just how seriously the law views the killing of another person, even if death was not intended or foreseen.[4] But the law also recognises that all manslaughter cases are not the same, and so the facts of each case play an important role in deciding the appropriate sentence. That is why I need to begin by talking about what happened on 26 June 2015.Facts[5] Between 7 and 7.30 pm that evening you put your two children to bed in the room they shared. Shortly afterwards Esmé became upset and began to cry. Attempts were made to quieten her. She was told by her mother that unless she settled she would have to sleep in the spare bedroom and shortly afterwards you took her in there and closed the door.[6] You later told Police that you wrapped Esmé in a blanket that was on the bed but she kicked it off and tried to jump off the bed. You then re-wrapped Esmé in the blanket and placed her face down on a pillow at the head of the bed. You said that she was still attempting to get up so you put her bottom under your right armpit and placed your right hand on the back of her head.[7] You said that you held Esmé down with the minimum amount of force to stop her getting up again. You said she was squirming, making noises, inhaling and exhaling while she screamed. You said you "monitored" her breathing and the noises she was making and held her in that face down position for five to ten minutes, after which you said she settled, letting out a shuddering breath. You said that at that point Esmé appeared to be breathing normally and you adjusted her head so that her face was pointing sideways to the right instead of into the pillow. You said you thought she was fine, got off the bed, left the room and shut the door.[8] Your partner later reported that you appeared relaxed and calm on your return. You told her that Esmé was sleeping on her front, but that she was ok.[9] A bit later in the evening you were called into work. Sometime before that, your partner asked you to go into the spare room and close the window. You said that when you did so you checked on Esmé and saw that she was in the same position as you had left her and that you believed that you heard her breathing. You told Esmé's mother that you had checked on her.[10] You got back from work shortly after 10 pm. At about 11 o'clock your partner asked you to check on Esmé before you both went to bed. You described entering the spare room. You nudged Esmé and said her name. You noticed she wasunnaturally stiff. You turned her over and saw that one of her eyes was half open, that she was not moving or breathing and that she had discolouration on one side of her face.[11] You called to your partner. She entered the room and saw Esmé lying in an unnatural position. She picked Esmé up and felt that she was stiff and cold and noticed the slight facial discolouration. You phoned for an ambulance. During the 111 call you said to the operator "I think I may have killed my daughter". You were told by the operator how to commence CPR. When told to check her airway yousaid "she's suffocated, she's been suffocated".[12] The ambulance and Police arrived at about 11.10 pm and Esmé was pronounced dead at 11.21 pm.[13] On 28 June 2015 Dr Martin Sage conducted a forensic post mortem examination on Esmé. The initial autopsy did not establish the cause of her death. It did not show any clear evidence of life threatening injury. Small inconclusive bruises were identified on her head. Further tests and examinations were carried out and the pathologist was provided with your statement to Police. Dr Sage then said that his findings are compatible with suffocation or fatal neck compression in the circumstances you had described.Victim impact statements[14] Before turning to talk about your sentence I need to say something about your partner and her family and the effect of what you have done on them. None of them felt able to read out their victim impact statements today and that is of course completely understandable. I have no doubt that it is not possible to express their grief adequately in words anyway. But I have read their statements carefully.Esme's grandmother talks of the agony of seeing her own daughter in such pain.And Esmé's mother articulately sets out the dreadful effect of her daughter's death,and the way she died, on every aspect of her life. Both women talk about the profoundly sad and awful impact of Esme's death on Esme's brother, who is still, I think, only 5. And of course having to comfort a heartbroken and traumatised child only exacerbates their own pain and grief.Setting the starting point[15] But I now turn to the sentencing process itself. The first stage in the process is to set the starting point, based on the overall seriousness of what you did.[16] As Mr Marinovich noted in his written submissions today I have said before in another case like this that it is a dreadful thing for a sentencing Judge to have to compare one death of a baby or young child and the deaths of other little children. Making such comparisons run the risk that people might think that the Judge somehow considers that Esme's life, for example, was worth less than the lives of those other children. It certainly is not. Every child is precious. Every child deserves a future. No baby or child should ever, ever, have that future taken away by an act of violence, particularly by the very person who was supposed to love her the most and to protect her from harm.[17] But I am sure it will be also understood that justice and the law require that distinctions are drawn between unspeakably dreadful cases such as those where a child has died after prolonged cruelty or sustained abuse, and ones like this involving a single act of force, albeit an act of great foolishness, that has had the most terrible of consequences.[18] In your case, Mr Kinraid, there is not much disagreement between the lawyers about what the aggravating features of what you did are.[19] First, there is Esmé's particular vulnerability and her completedefencelessness. That speaks for itself, as does the magnitude of the breach of trust involved in a father killing his two year old daughter. By s 9A of the Sentencing Act 2002 Parliament has underscored the aggravating nature of these factors, and emphasised that a stern approach is required by the Courts when sentencing for violent offending towards children and, in particular, child manslaughter.[20] Next there is the nature of the act which caused Esmé's death, which wasdeliberate and relatively prolonged. Although you have said that similar means of"restraint" had been successfully used by you to calm or settle Esmé before, I do not accept that what you did was not violent and I cannot accept that you were unawareof how dangerous it was. The reality is that a toddler was being held face down against her will by a grown man; she was struggling against you. She had no chance of escape. Calling it "restraint" does not make it okay. And the very fact that you told Police that you had monitored Esmé's breathing suggests that you well knew that she was at risk of oxygen deprivation which, even had it not resulted in her death, might well have caused her irreversible brain damage. So as I have said, it was a deliberate act, it was an act of force and it was a dangerous act.[21] And lastly, there is the irredeemable harm that has been caused to Esmé and her family. Esmé is dead. Her life and her future were taken away in an instant. She was only two years old. I have referred to the horrendous effect on Esme's brother,her mother and grandmother already.[22] Both the Crown and defence counsel originally suggested that your case was similar to those in which young children have died as a result of a parent's breach ofduty or neglect. Sentencing starting points of between two and a half and four and a half years tend to be adopted in those cases. But I do not think that comparator was apt. There is a qualitative difference between a tired and overwrought mother who leaves her child briefly by himself in the bath while she attends to another child and a father who deliberately holds his two year old daughter face down in a pillow for between five and ten minutes, whatever his purpose might have been. So for sentencing purposes I think this case is more analogous to cases involving the deliberate shaking of a baby than to cases where a baby has died as a result of an accidental omission. And as I have said, the fact that you told Police you weremonitoring Esmé's breathing is, at best, a double edged sword; while it may indicatethat you were concerned for her safety, it also suggests that you were doing something that you knew was dangerous.[23] I have found this a difficult and somewhat unusual case. I am required by law to impose a sentence, and to adopt a starting point, that remains in line with other sentences for child manslaughter cases involving similar aggravating features. I have considered a number of such cases. And in the end, after taking all thosematters into account I determine that a starting point of six and a half years'imprisonment was warranted.1[24] The next question is whether it is then appropriate to increase or decrease that starting point on account of personal matters.[25] I have read your pre-sentence report and your recent affidavit. You say you are remorseful and have fully accepted responsibility for Esme's death and I am sure you would turn back time if you could. And as Mr Keegan said this morning you are of course a victim here too. But there does remain a slight undercurrent in the material that I have read of blame shifting, notwithstanding your protestations to the contrary.[26] In any event, no-one suggests that an uplift is warranted for personal factors. Mr Marinovich did not really part company from Mr Keegan's submission that credit should be given for your co-operation with Police and for your previous good character. I would not, however, overstate either point. Your early inculpatory statements (during the 111 call and upon the arrival of the Police) seem to me to be more spontaneous than considered. But I do accept that your subsequent formal statement to Police was both willingly given and ultimately of great assistance to the Police. And while I accept that you have no criminal history, you have also had the privilege of a good education and a good job. But I do not put those matters aside all together.[27] The most significant thing in your favour is, of course, your guilty plea which has saved your former partner and others the great distress and trauma of a trial. And of course you have also saved the State the cost of a trial as well.[28] I also record that although you wished to participate in a restorative justice process, Esme's mother did not. That is hardly surprising, but I acknowledge your good intentions in that regard.1 R v Graham CA391/96, 27 February 1997; R v Greaves CA68/99, 13 May 1999; R v TahuriHC Wanganui CRI-2009-083-677, 18 June 2010; and R v Wichman [2016] NZHC 1663.[29] Taking account of all these matters I still propose to give a discount of 10 months, for co-operation, good character and remorse and a further 25 per cent discount for the guilty plea. I think that these discounts were and are on the generous side. But they mean that the end sentence will be one of four years and three months imprisonment. Home detention is of course not an option.[30] So that is it. If you could stand now, Mr Kinraid. For the manslaughter of your daughter, Esmé Kinraid, I sentence you to four years and three months imprisonment. Please stand down.________________________Rebecca Ellis J