Mehrok v R

• Jurisdiction: New Zealand
• Judge: Brewer J
• Judgment Date: 06 August 2021
• Neutral Citation: [2021] NZCA 370
• Docket Number: CA597/2020
• Year: 2021
• Court: Court of Appeal

Between

Surender Singh Mehrok

Appellant

and

The Queen

Respondent

[2021] NZCA 370

Court:

Brown, Brewer and Davison JJ

CA597/2020

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal Sentence — appeal against a sentence of seven years, nine month imprisonment with a minimum period of imprisonment of 50 percent imposed in the High Court on a charge of manslaughter — the appellant had killed a 14-week-old baby by throwing him into a wall-discounts mitigating factors — Sentencing Act 2002

Counsel:

R J Stevens and K Hadaway for Appellant

E J Hoskin for Respondent

The appeal against sentence and the imposition of a minimum period of imprisonment is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Brewer J)

Introduction

1 Mr Mehrok killed a 14-week-old baby who had been left in his care for a short time. He did so by throwing the baby with such great force that “the baby's skull was shattered like an eggshell”. 1 The cause of death was blunt force craniocerebral trauma.

There were skull fractures and bleeding inside the brain. The brain matter itself was lacerated

2 A jury found Mr Mehrok not guilty of the murder of the baby, but guilty of his manslaughter.

3 On 15 October 2020, Gordon J sentenced Mr Mehrok to seven years, nine months' imprisonment. The Judge ordered that he serve a minimum period of imprisonment of 50 per cent of that sentence. 2

4 Mr Mehrok now appeals his sentence. He says it is manifestly excessive, and that it is wrong in principle for him to be subject to a minimum period of imprisonment.

5 Our task is to decide whether there is an error in the sentence imposed on Mr Mehrok such that a different sentence should be imposed.

Grounds of Appeal

6 There are seven grounds of appeal relating to the sentence. They are set out in Mr Stevens's written submissions, and suggest that Gordon J:

• a) Failed to correctly identify the factual basis for sentencing;

• b) Adopted too high a starting point;

• c) Inappropriately uplifted the starting point as a result of Mr Mehrok's previous convictions;

• d) Failed to give sufficient credit for the offer to plead guilty;

• e) Failed to give sufficient credit for youth;

• f) Failed to give any credit for the steps taken to shorten the proceedings;

• g) Failed to give sufficient credit for personal circumstances.

7 There is a further ground of appeal to the effect that the Judge erred in imposing a minimum period of imprisonment.

Discussion

The factual basis for sentencing

8 The defence case at trial was that Mr Mehrok killed the baby by throwing him into a bedroom wall during a momentary loss of self-control. The defence placed reliance on the evidence of a five-year-old boy, T, who was in the house at the time.

9 The Crown's case was that there were at least two significant blows or impacts to the baby's head.

10 Justice Gordon was well aware of the difference between the two cases. It was the subject of submission at sentencing. The Judge said:

[17] However, in the end, I consider it is not necessary to make findings as to exactly what T saw and whether there was one impact or more than one and I do not do so. That is because the Crown and defence medical experts agreed on the amount of force that you must have used to cause the injuries. A defence expert said the cranial injuries were capable of being explained by “a single massive impact”. He said this was “a very great form of abuse with … extreme violence being applied”. The other defence expert agreed that the injuries resulted from massive force. Other terms used for the level of force were “significant” and “catastrophic”.

11 However, Gordon J explicitly rejected the defence submission that the fatal injuries to the baby were the result of a momentary loss of self-control:

[19] Ms Hadaway submits that this was a momentary loss of self-control on your part. I do not accept that. I have already referred to the other non-fatal injuries which I accept were caused by you at the same time as the fatal injuries. In addition to the throwing, T described you as hitting the baby twice. Nor was this an isolated incident in relation to children in the household. You had assaulted those other children on previous occasions albeit in a much less serious way.

12 Justice Gordon set out the basis upon which she would sentence:

[21] I therefore proceed with your sentencing on the basis of the following factual findings:

• (a) At the least you threw baby Royal;

• (b) The force you used to inflict the fatal injuries to him was extreme;

• (c) The resulting injuries were at the most severe end of the spectrum;

• (d) In addition to your conduct causing the fatal injuries, at the same time, you assaulted baby Royal causing other non-fatal injuries that I have already described; and

• (e) Your conduct did not result from a momentary and uncharacteristic loss of self-control.

13 Mr Stevens submits that the Judge was required to determine “the actual factual basis upon which the sentencing should proceed”. We accept that submission, so far as it goes. It is axiomatic that a sentencing Judge must decide the factual basis of the offending to the extent that it establishes the overall criminality of the offending.

14 In this case, that is what Gordon J did. The Judge decided, for the purposes of sentencing, that it was the extreme use of force against the baby which mattered rather than whether there was one impact or two.

15 Likewise, having heard the evidence, the Judge was entitled to conclude that this was not a momentary loss of self-control on the part of Mr Mehrok. The Judge gave her reasons and we cannot say that those reasons were not available to her.

16 Mr Stevens submits that even if the Judge was entitled to find that Mr Mehrok had not momentarily lost self-control, the fatal assault was clearly a brief, spontaneous, single incident of violence. The Judge, at [21] of her sentencing notes, 3 does not say otherwise. But, there was evidence of bruising and evidence from T which could properly found the Judge's conclusion at [21(d)]. Mr Mehrok's violence towards the baby leading up to the fatal throwing had to be taken into account by the Judge in setting the starting point.

17 This ground of appeal does not succeed.

Was the starting point too high?

18 Justice Gordon recognised there is no tariff case for manslaughter sentencing. That is because the circumstances of offending vary widely and the culpability of each defendant must be assessed in relation to the specific circumstances. 4

19 In the High Court the Crown submitted a starting point of 10 years' imprisonment or more was warranted. Ms Hadaway for Mr Mehrok submitted eight years' imprisonment was an appropriate starting point. Both counsel put forward comparator cases. The Judge said:

[27] The age of a victim is a relevant consideration. The victims in these cases are always vulnerable, but a newborn baby or baby who is entirely reliant on adult carers for survival is particularly vulnerable. Also relevant is the nature of the force used and whether violence arose from a momentary loss of control. Finally, there is a question of a pattern of the application of force to children. This is less concerned with whether there was serious and ongoing abuse prior to death, which is a different category of offending, but whether a defendant habitually used force on a child or children.

20 Justice Gordon took particular guidance from Woodcock v R 5 and R v Kereopa 6 and adopted a starting point of 10 years' imprisonment. In doing so, the Judge cross-checked the appropriateness of the sentence against the tariff case for serious violence, Taueki v R. 7 The Judge put the offending within band three (9–14 years' imprisonment), at the lower end, and concluded this to be consistent with the starting point of 10 years' imprisonment adopted. 8

21 Mr Stevens submits that the Judge drew a distinction between violence against babies and violence against “toddlers” and that this was an error.

22 We accept there is no stark demarcation between cases involving the manslaughter of babies as opposed to cases involving the manslaughter of toddlers. In every case, an assessment must be made of the vulnerability of the victim and the acts of the defendant, including how dangerous the acts were in the circumstances.

It might be that some acts of violence are likely to be inherently more dangerous to a fragile baby than a more robust toddler. If so, this will inform the starting point

23 Mr Stevens undertook a comprehensive survey of manslaughter cases involving babies or toddlers in an effort to persuade us that the starting point of 10 years for this case was too high. It is often useful to have regard to similar cases to identify broad ranges of sentences imposed by the courts. But for manslaughter such comparisons can only be indicative given the variability of circumstances. The maximum sentence for manslaughter is life imprisonment. 9 This case is characterised by the extreme use of force on a completely vulnerable child following shortly after the infliction of other much less severe violence. On first principles, a starting point of 10 years is within range. We agree with the Judge that applying the tests in Taueki, and allowing for death resulting from the violence, the offending is within band three and the 10 years starting point is available.

24 This ground of appeal does not succeed.

Uplift for previous convictions

25 Mr Mehrok has previous convictions for violence against children. Justice Gordon described the circumstances as follows:

[20] In sentencing you on 6 March 2018, 10 following your guilty pleas, Judge Mabey QC described the charges and the conduct as follows. There were representative charges alleging offences by you between October 2015 and June 2016. The sentencing remarks state that you would frequently...