Mulford v R - [2025] NZCA 444

CRIMINAL LAW – sentence appeal – manslaughter – starting point – Sentencing Act 2002 – s 18 – Diaz v R – personal mitigating factors 

Ms Mulford was convicted of the manslaughter of her two-year-old stepdaughter, Harlee-Rose.  Campbell J sentenced her to five years and six months imprisonment.  She now appeals her sentence.   

Was the starting point of seven years’ imprisonment too high?
Held: No

First, although the Judge’s description that Harlee-Rose was “stomped on, kicked or punched” in the abdomen omitted another possible way in which the injuries could have been inflicted, what mattered for sentencing purposes was the extremity of the violence whatever the mechanism that must have been required to cause her pancreas and liver to be torn in two.  The omission did not take the starting point out of range.   

Secondly, the Judge did not breach s 18 of the Sentencing Act 2002 in treating the appellant’s earlier strangulation offence (charged as injuring with intent to injure) of Harlee-Rose as an aggravating factor of the manslaughter.  At the time of the strangulation, the appellant was aged 17.  Her age meant s 18 of the Sentencing Act 2002 applied to the strangulation offence, precluding the imposition of a custodial sentence for that offence.  In Diaz v R this Court held that s 18 also precluded sentencers from imposing any discrete uplift on account of offences within s 18 when sentencing on another offence not caught by the section.  Diaz was however distinguishable in that the s 18 offence in that case was unrelated to the other offending.  Section 18 cannot have been intended to prevent a court from considering as an aggravating feature conduct that truly aggravated the culpability of another offence just because it happened to also amount to a separate offence within s 18.  In this case, the earlier strangulation involving the same victim was directly relevant because it showed the killing was not a one-off loss of control, but rather an escalation in terms of violence and that the child’s death might have been avoided had the appellant told the truth about what had happened earlier.  The earlier offending was logically an aggravating factor of the manslaughter  and could be taken into account when setting the starting point for that offending. 

Finally, the seven-year starting point was within range when considering comparator cases involving a caregiver’s manslaughter of a child as a result of a single violent incident.   

Were the discounts for personal mitigating factors insufficient?
Held: No

Given discounts must be tempered by the seriousness of the offending, a youth allowance of 15 per cent does not warrant appellate intervention in the case of such extreme violence against a defenceless toddler. Likewise, the five per cent discount for other background factors was appropriate when considering the weak casual or contributory nexus between the appellant’s background and her offending. 

In conclusion, the end sentence of five years and seven months’ imprisonment was not manifestly excessive. 

Result:  The appeal is dismissed.