MOUAT v R [2017] NZCA 603

MOUAT v R [2017] NZCA 603NOTE: ORDER MADE IN THE HIGH COURT SUPPRESSING THE NAMEOF THE APPELLANT'S DAUGHTER REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDCA593/2017[2017] NZCA 603BETWEEN SUSAN ELIZABETH MOUATAppellantAND THE QUEENRespondentHearing: 27 November 2017Court: Clifford, Dobson and Collins JJCounsel: E R Fairbrother QC for AppellantC A Brook and Z A Fuhr for RespondentJudgment: 15 December 2017 at 4.15 pmJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] On 4 September 2017, and after receiving a sentencing indication,Susan Elizabeth Mouat pleaded guilty to the manslaughter of her husband,Bruce Kevin Mouat. On 13 October 2017, Mrs Mouat was sentenced tohome detention for a term of 11 months, and special post-release conditions wereimposed.1[2] Mrs Mouat now appeals that sentence. She says that the term ofhome detention is manifestly excessive — she should have been sentenced to a periodof community detention. She says that the post-release conditions are unnecessary inher case.Facts[3] In July 2011 Mrs Mouat was living with her husband and their young daughter.Mr and Mrs Mouat had been in a relationship for some 10 years. They had married in2009.[4] Mr and Mrs Mouat had had a volatile relationship. Mr Mouat had obtained aprotection order against his wife prior to their marriage and, during that period, shehad been convicted of a number of violent offences, including against Mr Mouat.[5] On the evening of Friday 15 July 2011 Mr Mouat attended a work function.He was dropped off at home by colleagues at approximately 1 am on Saturday16 July 2011. He was extremely intoxicated, and had to be assisted to the front door.Mr Mouat was trying to open the front door when Mrs Mouat got out of bed andopened the door for him. They had an argument on the front porch and then in thekitchen of the house. Mr Mouat fell over a chair in the kitchen. Mrs Mouat toldMr Mouat to leave the house before he woke their daughter. Mr Mouat then went tothe front door the house, taking car keys with him. Mrs Mouat took those keys offhim. At this point, it would appear Mr Mouat attempted to push his way back into thehouse. Mrs Mouat pushed him back in response. As a result, Mr Mouat fellbackwards off the porch, striking his head on concrete. Mrs Mouat called theambulance. Mr Mouat was taken to hospital. He subsequently underwent emergencysurgery but died some 10 days later on 26 July 2011. The cause of Mr Mouat's deathwas determined to be blunt force trauma to the head, consistent with a fall.1 R v Mouat [2017] NZHC 2519 [Sentencing notes].[6] At the time, and again in August 2016, Mrs Mouat provided statements to thepolice indicating that Mr Mouat had fallen unassisted from the steps of their house. InOctober 2016 Mrs Mouat was spoken to again by the police. On this occasion,Mrs Mouat admitted that she had caused the fall by pushing her husband in thecircumstances set out above.[7] Mrs Mouat initially pleaded not guilty to the charge of manslaughter then laidagainst her. On the day her trial was due to commence, Mrs Mouat sought a sentencingindication. Reflecting the submissions he heard, Churchman J indicated he consideredMrs Mouat's circumstances were somewhat similar to those found in R v King, wherea sentence of 12 months home detention was imposed after the Judge had identified atwo year starting point (that was reduced to 14 months' imprisonment after taking intoaccount mitigating factors).2 Noting the possibility of discounts for guilty plea,remorse and the fact that, without Mrs Mouat's admission, it was likely the Crowncase would not have proceeded, the Judge indicated a final sentence within the rangeof 15 to 18 months, to be converted to home detention of between 10 to 12 months.3The decision[8] Very much as he had indicated, Churchman J fixed the starting point sentenceat 22 months' imprisonment.4 The Judge increased that starting point by two monthson account of Mrs Mouat's previous convictions for violence and threats of violenceagainst Mr Mouat.5 He then allowed discounts of five per cent each by reference toMrs Mouat's mental health and addiction issues, her admission of responsibility andher remorse, totalling 15 per cent in all.6 There was a further discount of 15 per centon behalf of her guilty plea, resulting in an end sentence of 17 months.7 The Judgethen converted that sentence into one of home detention for 11 months.82 R v Mouat HC New Plymouth CRI-2016-020-2911, 4 September 2017 citing R v King [2012]NZHC 3072.3 At [8]–[9].4 Sentencing notes, above n 1, at [40].5 At [46].6 At [49]–[52].7 At [54].8 At [73].[9] Recognising Mrs Mouat's ongoing alcohol and related mental health issues,the Judge imposed special post-release conditions, as recommended in the PAC Reportand to which Mrs Mouat had consented, requiring Mrs Mouat not to consume alcoholor non-prescribed drugs, and to attend appropriate alcohol and drug treatment asdirected by the Probation Officer, for a period of 12 months.Appeal[10] For Mrs Mouat, Mr Fairbrother QC submitted that the Judge had erred when,for consistencies sake, he had likened Mrs Mouat offending to that which was beforethe Court in R v King, and to a lesser extent, R v Paku.9 The more relevant cases, ashe had submitted at sentencing, were R v Scott10 and McWhannell v R.11 The lattertwo cases involved manslaughter by grossly negligent act. Sentences of reparationand reparation and community work were considered sufficient. Mr Fairbrotherlikened Mrs Mouat's culpability to those of the defendants in those cases: that is, herculpability was her negligent failure (given Mr Mouat's intoxication) to consider thedanger in pushing him back when he tried to re-enter the house. Accordingly, thosesentencing decisions were more relevant than King or Paku, which involvedintentional assault. A sentence of community detention was the appropriate outcome.The special conditions were unnecessary, Mr Fairbrother argued, because of the effortsMrs Mouat had been making herself to address her alcohol and related mental healthproblems.[11] For the Crown, Ms Brook's submission was that the Judge's sentencingdecision could not be seen as being in error. He had properly and fairly assessedMrs Mouat's culpability, and imposed a rehabilitative sentence. The specialconditions were appropriate: whilst Mrs Mouat had not been drinking at the time ofthe events which caused Mr Mouat's death, that had not been the situationsubsequently. Recognising that, she herself had consented to the special conditions.9 R v King, above n 2; and R v Paku HC Hamilton CRI-2005-019-6408, 7 September 2006.10 R v Scott [2015] NZHC 3239.11 R v McWhannell HC Palpmerston North CRI-2009-054-1094, 29 July 2010.Analysis[12] We accept that Mrs Mouat's culpability is at the very low end of themanslaughter offending. But, similarly, a sentence of 11 months' home detention is atthe very low end of the scale of manslaughter sentences. We do not acceptMr Fairbrother's proposition that Mrs Mouat's culpability is for a purely negligent act.By her own account, Mrs Mouat deliberated pushed her husband, albeit to prevent himre-entering the house.[13] She was well aware at the time that Mr Mouat fell, hit his head and died as aresult. The Judge's total discount of 30 per cent might, in those circumstances, be seenby some as generous. We infer the Judge was influenced by the information providedin support of Mrs Mouat, which confirmed the efforts she had taken since the eventsof July 2011 to put her life on a different pathway.[14] But in our view, it cannot be said that the Judge erred in imposing the endsentence of 11 months' home detention. Furthermore, there can in the circumstancesset out above be no challenge to the special post release conditions imposed. Therequirements of s 80P of the Sentencing Act 2002 are clearly made out. AsMrs Mouat's previous convictions show, and as the PAC Report indicated, alcohol useis a key factor in respect of the chances of Mrs Mouat reoffending. Further, and as wehave noted, Mrs Mouat consented to abide by any conditions imposed in respect ofalcohol.[15] Mrs Mouat's appeal against sentence is therefore dismissed.Solicitors:Crown Law Office, Wellington for Respondent