Protecting our young: The debate over manslaughter sentences

The sentences imposed after the death of the toddler known as Lillybing provoked a furious reaction. SHENAGH GLEESON looks at how and why manslaughter sentences vary.

It was the end of summer last year when young teenagers Zane Cutter and Colin Morgan died. Biking home from a day's swimming, they were crossing a bridge just outside Wanganui when they were struck by a vehicle from behind and killed.

Colin died instantly from head injuries, Zane was badly injured but died from drowning. Both boys were thrown into the Whanganui River.

The driver, Victor Lloyd Minnell, driving home from the pub without his glasses and his lights on dim, went home to bed. He later pleaded guilty to manslaughter.

It was mid-winter the same year when little Hinewaoriki Karaitiana-Matiaha, known as Lillybing, died. Her step-aunt, Rachealle Namana, fatally damaged her niece's brain by violently shaking the cruelly neglected and abused little girl.

Eventually Namana also pleaded guilty to manslaughter.

Minnell was sentenced to four and a half years in jail for killing Zane and Colin. Namana got six years. They both could have received life sentences.

Whether their crimes can be compared, whether either received a just sentence, whether judges are too soft on the killing of children, whether the law needs changing are important questions raised by Namana's sentencing just over a week ago.

The reaction to the six years she received from Justice Eddie Durie was swift and predictable. It is the same response which has followed every high-profile case involving manslaughter and the killing of children in recent times.

The shattered families of Zane and Colin were furious at Minnell's sentence - three and a half years for the manslaughters and one year for failing to stop at the accident.

The loudest protests on Lillybing's behalf have come not from her dysfunctional family, but from talkback hosts and callers, from the Commissioner of Children, Roger McClay, from some politicians, and from Dunedin QC Judith Ablett Kerr, convenor of the Law Society's criminal law committee.

She says she has been raising the committee's concerns over penalties in relation to cruelty to children with the Minister of Justice, Phil Goff, for over a year. The committee fears that the wrong message is being sent to society as to how much value is placed on the life of a child.

Mr Goff's response is that the maximum penalty for manslaughter cannot be increased - it is life - and the Government will not impose mandatory minimums.

Judges must be left discretion to weigh both aggravating and mitigating factors when deciding a sentence that can range in manslaughter from suspended sentences to life imprisonment.

So how did Justice Durie decide on Namana's penalty? Primarily by considering other cases.

First, he gave an indication of the range of sentencing in New Zealand.

* Six months for Ane Auva'a in 1992. She was babysitting her niece when she punched the 23-month-old so hard in the stomach that she died of peritonitis caused by a burst pancreas. She failed to tell the parents so they could get treatment for the child. Justice Grant Hammond sentenced her to six months in jail, citing a momentary loss of temper or composure.

* Sixteen years for Tania Gaye Witika and Edward George Smith in 1992. Witika's two-year-old daughter Decelia died after child abuse of an extreme kind over a lengthy period. Justice Henry held they were jointly responsible. Witika appealed her sentence but it was upheld by the Court of Appeal and the Privy Council.

Justice Durie said Namana's case was not as severe as Witika and Smith's. More comparable were:

* Eight years for Belinda Edmonds last year. Edmonds' six-year-old daughter Mereana died after serious and continual abuse over five months. Edmonds was initially given a five-year jail sentence, with Justice Hammond referring to Edmond's conception by rape, her difficult life and psychological problems. Her partner, Dorothy Tipene, initially also charged with manslaughter, was jailed for 18 months on a charge of cruelty to a child.

The Crown appealed the sentences and the Court of Appeal raised Edmond's sentence to eight years and Tipene's to 27 months. The court said Justice Hammond had taken "a much too lenient view of the offending".

* Eight years for Philip Paul Rakete in 1993. Rakete's partner's three- year-old son, Jordan Ashby, died after Rakete assaulted him over four days, punching him and hitting him with a belt. The Court of Appeal upheld Justice Richard Heron's sentence.

* Six years for Graeme Ross Sperry in 1990. He was initially sentenced to three years by Justice David Tompkins for causing the death of his partner's 19-month-old son, Robert Harlen, while his mother was out for about an hour.

The toddler died of brain injury consistent with shaking, but multiple bruising and injuries to internal organs were also evident. The Court of Appeal doubled the sentence to six years.

Confusingly, after acknowledging these precedents, Justice Durie then went on to cite the Court of Appeal's statement in the Witika case that manslaughter is an offence that carries wide variations in gravity and culpability, so that previous sentences are of limited assistance. Each case has to be considered on its merits.

In Namana's case he decided the degree of neglect - especially the failure to get medical help for Lillybing's life-threatening vaginal injuries - was "just inexcusable".

In mitigation he mentioned Namana's remorse and the limited period in which abuse occurred.

He then imposed a jail sentence of eight years but took off two years for her guilty plea. Co-defendant Rongomai Paewai, who pleaded guilty to two charges of wilful ill-treatment and two charges of failing to provide the necessaries of life, was sentenced to three years jail, reduced to two years for her guilty pleas.

Mr McClay, the official and outspoken champion of children, admits it is not his job to criticise judgments or comment on individual court cases. But he cannot help reflecting that it is sad that a little child's life is worth only six years.

He concedes Mr Goff's point that manslaughter already has the maximum penalty of life and that each case must be considered on its merits. He also thinks long sentences will not fix the problem of child abuse.

However, if society really wants to show that children are not only as important as other human beings, but even more important, then society could pressure Parliament to introduce special regard for children into laws dealing with abuse, he says.

Mr Goff says the Sentencing and Parole Reform Bill gives judges clearer sentencing guidelines and states that very serious offences should attract close to the maximum penalty available for a crime.

Like Mr McClay, though, he stresses that tougher punishment will not work on its own. "Some of the anger at the barbarity of these cases needs to be directed at the lack of fences at the top of the cliff as well as at the punishment end."

Some 72 people were in contact with Lillybing over the weekend of her death. No-one did anything, Mr Goff says. The issue of dysfunctional families must be addressed.

But Lillybing's case has also added fuel to the growing debate over whether people who kill and injure children get lighter sentences than people who kill and injure adults.

Following concerns expressed by Mrs Ablett Kerr and others, Mr Goff asked the Ministry of Justice to conduct some research.

The project was based on 782 physical (non-sexual) abuse charges settled in courts in Auckland, Hamilton, Tauranga and Christchurch in 1999.

Most of the victims (84 per cent) were aged at least 20 years, 10 per cent were aged 15-19 and 6 per cent were 14 and under. Just over half (58 per cent) of the victims were female.

The results showed physical abuse against children was more likely to land an offender in jail. Of the 41 charges involving children, 16 (39 per cent) resulted in a jail sentence for the offenders; of the 67 charges involving victims aged 15-19 years, 23 charges (34 per cent) resulted in jail sentences; of the 571 charges involving victims aged 20 or more, 169 (30 per cent) resulted in jail.

But offenders who abused children were likely to get shorter sentences. The average jail sentence for them was 11.4 months; for offenders with victims 15-19 it was 17.5 months; and for offenders of adult victims 16.7 months.

Deputy secretary of criminal justice Warren Young cautions against the results because of the small number of cases considered. And Mrs Ablett Kerr said the omission of any cases of manslaughter was significant.

Although Mr Goff might regret the small size of the sample, he believes it gives some reassurance that judges are not softer on child abusers than on abusers of adults. But Mrs Ablett Kerr and Mr McClay want more research.

In the meantime judges will continue to implement the law and make judgments on the degrees of children's suffering and the culpability of those who inflict it.