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The Queen v/s Ema Sienavia Rowland

    CA No. 475 of 2000
    Decided On, 22 March 2001
    At, Court of Appeal of New Zealand
    For the Appellant: J C Pike, Advocate. For the Respondent: Y R Summers, Advocate.

Judgment Text

[1] The Crown seeks leave to appeal against the sentence of 9 months imprisonment suspended for 18 months, plus 150 hours community service, imposed on the respondent, Mrs Rowland, in the District Court at Palmerston North on 12 December 2000.

[2] Mrs Rowland had been found guilty by a jury on a charge of wilfully ill treating a child in a manner likely to cause the child unnecessary suffering (s195 of the Crimes Act 1961). The victim was Mrs Rowland's grand-daughter (D). She was aged 9 and 10 at the relevant time. D had been placed in her grandmother's custody following physical abuse in her immediate family environment. Obviously Mrs Rowland, who had nursing experience, was being trusted to make matters better rather than worse for D. Her offending constituted a gross breach of that trust.

[3] The evidence before the jury demonstrated a sustained course of physical cruelty on Mrs Rowland's part, extending over 8 months. In his sentencing remarks the Judge stated that the ill treatment consisted of assaults involving the slapping of D about the ears, the striking of her on the back with a stick, the kicking of her about the legs, and striking her on the hands. There was also an incident of her being struck on the face with a spoon. The most serious of the incidents involved an occasion when Mrs Rowland was washing D's hair in a sink, during the course of which D ended up with substantial damage to her teeth. As the Judge put it, Mrs Rowland appeared to have pushed the chair D was sitting on, causing her to fall and strike her face with the consequent breaking of two front teeth for which Mrs Rowland sought no medical assistance. It is unnecessary to describe the injuries suffered by D in great detail. What can be said is that they were substantial, spread widely over her body, and would obviously have caused her very considerable pain and suffering over an extended period.

[4] The Judge concluded that the offending involved serious violence within the meaning of s5 of the Criminal Justice Act 1985. The offence of which Mrs Rowland was convicted carried a maximum penalty of 5 years imprisonment. Hence the Judge was obliged to impose a full time custodial sentence unless satisfied that, because of the special circumstances of the offence or of the offender, Mrs Rowland should not be so sentenced.

[5] While he regarded the violence involved as being at the lower end of the scale of conduct qualifying as serious violence, the Judge regarded it as serious violence nonetheless. Ms Summers did her best to persuade this Court that the Judge had erred in this conclusion. We are, however, satisfied that the Judge's assessment was open to him on the evidence, and was indeed correct. The combination and frequency of the injuries inflicted by an adult on a 9/10 year old child and, in particular, the injury to D's teeth, were such that the violence involved was properly characterised as serious. We note the Judge's observation that Mrs Rowland probably did not intend the injury to the teeth but there can be little doubt that she intended to apply force to D, which force caused that injury. Violence can be serious in the light of its consequences, even though those particular consequences may not have been intended. We thus reject the respondent's submission that the Judge was wrong to find that her conduct amounted to serious violence.

[6] In imposing the sentence now under challenge by the Crown, the Judge came to the view that there were special circumstances which entitled him to stop short of passing a full time custodial sentence. In R v Petersen [1994] 2 NZLR 533, 538, this Court held that a suspended sentence of imprisonment was not a full time custodial sentence. Hence a suspended sentence cannot be imposed unless there are special circumstances in terms of s5. The main thrust of Mr Pike's argument for the Crown was that the matters treated by the Judge as special circumstances could not properly be so regarded, whether viewed individually or in combination. Ms Summers' argument was of course to the contrary. She also made reference to matters not expressly addressed by the Judge.

[7] The points seen by the Judge as amounting in combination to special circumstances were that Mrs Rowland was 66 years of age and had hitherto led an exemplary life involving much valuable community service and no previous convictions. The Judge also brought to account his view that the degree of serious violence was at what he called variously, the lower level and the lowest level. To these matters Ms Summers added the contention that it was a special circumstance that D's 8 month stay with her grandmother had not all been bad, and that there were certain cultural aspects in the case which were relevant in the present context.

[8] We now examine these matters, both individually and in combination, in order to assess whether the matters raised on the respondent's behalf are capable of amounting to special circumstances. If they are not so capable, the Judge should not have suspended the term of imprisonment which he imposed. If they are so capable, it will be necessary to go on to determine whether the Judge was correct in exercising his discretion to suspend. It is fair to say that Mr Pike directed his submissions primarily to the first issue, namely whether any of the matters raised were capable, either alone or in combination, of amounting to special circumstances. He contended they were not.

[9] It has to be said immediately that there were no matters capable of amounting to special circumstances relating to the offence. The Judge was of the view that the violence involved, although serious, was at the lower/lowest end of the scale of conduct amounting to serious violence. But once conduct amounts to serious violence, it cannot logically be said that the fact that it is at or towards the bottom end of the scale amounts to a special circumstance in itself. We agree with Mr Pike's submission to this effect. It is possible that the level of violence may be relevant to whether the discretion to suspend should be exercised, assuming that special circumstances can be found elsewhere. But that is as far as the point can go.

[10] Nor, with respect, can we agree with the Judge that Mrs Rowland's age and previous good record amounted to special circumstances. It is an unhappy fact that people with previously good records are from time to time before the Courts for serious offending. A good record is seldom likely to amount in itself to a special circumstance relating to the offender although, in combination with other factors, such record may well be relevant to whether there are special circumstances overall, and to whether the discretion to suspend should be exercised. It does not of course follow that because special circumstances have been found, the Court will automatically suspend a sentence of imprisonment.

[11] We accept that old age may in itself be capable of amounting to a special circumstance, but we do not consider that that point is reached with a person aged 66 years. The Judge placed particular weight on Mrs Rowland's age saying that she would find imprisonment particularly difficult and that her age was "a very large factor" in his finding of special circumstances, albeit he stated that if the age factor had existed on its own, it would not have been sufficient.

[12] We turn now to the additional matters introduced by Ms Summers. We have to say that we regard them as unpersuasive. Counsel was able to point to certain good things that had happened during the period when D was in the care of her grandmother. It may well be, as counsel said, that D's experience was "not entirely negative". But there is nothing of such moment as could possibly amount to a special circumstance.

[13] The cultural point was a reference to the fact that Mrs Rowland was born on the island of Niue. She came to New Zealand at the age of 21 and has been very active in Pacific Island affairs. Counsel spoke of a cultural perception of the way in which it is acceptable to treat children. The point was raised not as justification but as an explanation of how matters went out of control. We are unable, however, to accept the consequential proposition that this dimension reduces Mrs Rowland's level of culpability to such an extent as to amount to a special circumstance.

[14] The Judge gave the sentencing issues raised by this case very careful and close attention. He himself acknowledged that he had had "the greatest of difficulty" in deciding what sentence to impose and particularly whether to suspend the sentence of imprisonment. He described his decision to suspend as an extremely close call. His reasons for doing so lay in the combination of factors already mentioned.

[15] We too have given the matter the most anxious consideration and have reminded ourselves that the grounds for allowing a Crown appeal must speak more strongly than those in relation to an appeal by a person convicted. We have nonetheless come in the end to the clear view that the matters relied on by the Judge and raised by counsel for Mrs Rowland did not, either individually or cumulatively, amount to special circumstances entitling the Court to pass other than a full time custodial sentence.

[16] Although the point is not decisive, we note that Mrs Rowland could claim no credit for a plea of guilty. She did not exhibit the remorse which such a plea might have demonstrated. Her defence to the charge implicitly suggested that someone else had been responsible for the injuries which her grand-daughter had sustained over the 8 month period. Her suggestion to the police that the injuries were all accidental was hardly credible. We do not have to address whether, if there had been a plea of guilty, its introduction into the mix of facts would have meant that in combination they amounted to special circumstances of the offender. Mrs Rowland is not to be more sternly dealt with on account of defending the charge but her stance weakens the force of her previous good record.

[17] The conclusion that no special circumstances existed determines the case. We add, however, that even if it had been possible to find special circumstances it would not inevitably have followed that a suspended term of imprisonment would have been the appropriate outcome. We say this because, in context, the

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violence for which Mrs Rowland was responsible was in our view at a somewhat higher level of seriousness than that assessed by the Judge. Mrs Rowland's overall culpability was considerable and general deterrence would have been an important aspect. [18] The term of 9 months, responsibly not challenged by the Crown, must be regarded in the circumstances as lenient. That notwithstanding we must bring to account the fact that Mrs Rowland has already fully served the sentence of 150 hours community service. It is also particularly onerous for a person upon whom a non custodial sentence has been passed to be required to serve a full time custodial sentence as a result of a Crown appeal. Those matters lead us to the view that the term of 9 months should be reduced. [19] In the result the Crown is given leave to appeal, and its appeal is allowed. The sentences imposed upon Mrs Rowland in the District Court are quashed. In their place she is sentenced to imprisonment for 6 months and directed to surrender to the Registrar of the District Court at Palmerston North forthwith after the delivery of this judgment to commence serving that sentence.