Lamb v The Queen

[2004] NZCA 100

IN THE COURT OF APPEAL OF NEW ZEALAND

CA473/03

THE QUEEN

v

DARRIN ROBIN LAMB

Hearing:23 June 2004

Coram:McGrath J
Paterson J
Doogue J

Appearances:  C L Elder for Appellant

B J Horsley and J L Moreland for Crown

Judgment:28 June 2004 

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

[1]       Darrin Robin Lamb appeals against a sentence of four years imprisonment imposed upon him for injuring with intent to injure a child aged three years eleven months at the time of the offending.  The maximum penalty for the offence is five years imprisonment.  The appeal is brought upon the grounds that the sentence is manifestly excessive.

Background

[2]       In November 2003 the appellant stood trial in the District Court at Wellington before Judge Mackintosh and a jury on two counts of injuring with intent to injure the same child.  The two counts differed in respect of the dates of the alleged offending.  The appellant was found guilty in respect of the offence alleged between 1 and 6 January 2003.  The jury could not agree in respect of the count relating to a slightly earlier period of time.  The Crown elected not to proceed to a retrial on that count and the appellant was discharged in respect of it.

[3]       The child who was injured was the daughter of the appellant’s then de facto partner.  The appellant and his partner had met at a drug and alcohol rehabilitation clinic.  At the time of the offending they had been living together for some seven months. 

[4]       On 31 December 2002 the child returned from spending Christmas with her natural father.  The first count in the indictment covered an incident on New Year’s Day when the mother was working at a restaurant in Masterton a short distance from where the couple lived.  The appellant was not working and was looking after the child.  When the mother returned from work the appellant told her that the child had fallen at the park and hit her head.  She was taken to a doctor and received three stitches for a small deep cut at the back of her head.  The mother observed some bruising on different parts of the child.  Later on the same day the child was taken back to the hospital where she was examined by a doctor.  The doctor noted small bruises on the child’s stomach and the cut to the head.  He did not note any other bruising or cuts at that time.  The child was discharged from the hospital the following morning. 

[5]       On 4 January the mother was at work for a good part of the day and the child was left in the care of the appellant.  On the evening of that day the child was returned to Masterton Hospital by the appellant and her mother covered, in the Judge’s words, from “top to toe in bruises to her head, arms, legs and torso and also there was another cut to head, which was viewed on arrival by a doctor”.  The following day the child was examined by a paediatrician.   The Judge recorded:

He said that he had never seen bruising like it before on a three year old child.  He described in his evidence that she had 21 bruises to her chest and abdomen, 15 on her lower back, 9 on her arms and 20 on her legs.  In addition to two cuts to her head she also had 10 bruises.

[6]       In her sentencing remarks the Judge noted that photographs of the injuries showed them to be horrific.  The Judge tended to agree with the description that the child was so bruised that she looked like she had been in a washing machine.  The bruising to her body, arms and legs was generally consistent with fingertip bruising.  The Judge accepted evidence that that was consistent with the child being forcibly picked up, held very tightly and shaken.  The paediatrician had said, according to the Judge, that significant force would be required to cause that kind of bruising.  The Judge went on to record the evidence of the doctor:

One bruise on her back had a ring shape which was consistent with force being applied with something circular, such as a pipe.  The bruising to her head was extensive, there was a bruise to the right temple, two black eyes, a bruise to her forehead, bruising to her chin, under her chin, a cut tongue and there was a linear bruise or welt that started on her left cheek and went down her collar bone which appeared to have been caused by a liner object such as an electrical cord or a small stick.  Loss of hair was also noted. 

[7]       The doctor described all those injuries as being caused within 24 hours, except for the earlier cut to the head and the bruising to the stomach noted on 1 January. 

[8]       The appellant initially denied being responsible for any of the injuries.  He later admitted that he could have caused some of the fingertip type bruising on the child by picking her up forcibly when removing her from the park and shaking her on one occasion when she was teasing a kitten.  The appellant also suggested that some of the bruises to the child were caused by her falling on building blocks which were in her room.  The appellant maintained most of the injuries were caused as a result of the fall in the park and then a fall in the bath on 4 January when he was cooking dinner and the child was left unattended.  He also said there was an incident in the bath earlier when a dog had scratched her when the dog was being bathed.  The Judge noted that the jury clearly rejected the appellant’s explanations of the injuries caused between the discharge from hospital on 2 January and the admission to hospital on 4 January were as a result of any accident in the bath, falling on blocks or with a dog.

[9]       The victim impact report before the sentencing Judge indicated that the child had become quite disturbed as a result of her injuries and the incidents causing them. 

[10]     The appellant is 25 years of age.  He has a history of drug and alcohol dependence and of major difficulties with personal relationships, particularly with females.  He is no stranger to the Court.  In 1994 when not yet 16 he was imprisoned for two years and three months for conspiracy to murder and another serious crime.  In 1998 when just 20 he was imprisoned for a further three years for some ten offences, including the use of a firearm to prevent arrest.  Further offending followed including two offences of contravening a protection order in 1999 and an offence of assaulting the mother of the child on 30 December 2002 for which he was sentenced to seven months imprisonment.  Subsequent to his release in respect of that offence further convictions for other offending had occurred.  It seems reasonable to infer that much of the offending is linked with his drug and alcohol problems.

[11]     In sentencing the appellant the Judge traversed the background and the submissions made for the appellant.  She was of the view that the child should not have been in the house with the appellant and the mother.  She assessed the aggravating features of the offending as the age of the child, the appellant’s previous convictions for violent offending, and the extent of the injuries and the bruising to the child, including the fact that it appeared that the offending may well have involved objects such as a cord or a pipe.  The Judge noted that apart from the appellant’s unfortunate personal circumstances there was little to be said in respect of mitigation.  She accepted that there was a need for deterrence and denunciation of the type of conduct involved.  She noted the submission by the Crown that the appellant’s offending fell within the category of cases that was near to the most serious of cases of its type.  After taking into account the aggravating features she considered the appropriate sentence was four years imprisonment.  That became the final sentence as the Judge could not identify any mitigating circumstances.  It should, however, be noted that in imposing sentence she cancelled the balance of a sentence of community work of 80 hours imposed on 22 September 2003, just two months prior to the sentencing under appeal.  In addition, the Judge remitted $5,800 of fines in respect of earlier offending.

Submissions

[12]     For the appellant it is submitted that the sentence under appeal is manifestly excessive.  It is submitted that the starting point was unduly severe and that the mitigating circumstances have not been sufficiently identified and taken into account. 

[13]     It is submitted that the appellant’s personal circumstances as acknowledged by the Judge on sentencing constitute a mitigating circumstance.  It is submitted because the appellant was ill equipped to have sole charge of the child, not only because of his lack of experience in parenting but also because of his significant personal limitations as a result of his alcohol and drug dependency, depression and past experiences referred to in the pre-sentence report.  It is submitted that the injuries to the child were indicative of the end result of the appellant’s personal difficulties coming to the fore.  It is said that they should have been given weight by the sentencing Judge in that she should have made some reduction for them as mitigating circumstances.

[14]     In answer to the submissions relating to the mitigating circumstances the Crown submits that any lack of qualifications to look after a child is not a mitigating circumstance and that the appellant’s personal circumstances did not constitute mitigating factors.  Indeed, the Crown submits that the Judge understated the aggravating factors in that she did not take into account that three days before this offending the appellant assaulted the mother.  In addition, the Crown submits that the Judge failed to give any weight to the fact that the appellant was aware that the child did require treatment and overnight hospitalisation just a day or two before he subjected her to what was a sustained and serious assault.  It is submitted this must be seen as a severely aggravating feature as the child was already in a vulnerable state.

[15]     The principal emphasis of the submissions for the appellant and the respondent was upon the appropriate starting point for the offending.  It is accepted that there is no sentencing tariff or guideline decision in this area.  The decision in R v Hereora [1986] 2 NZLR 164, applies in respect of offending under s188(1) Crimes Act 1961 but not to the present offending which comes under s189(2). Both counsel refer to sentencing cases which they consider are relevant. However, we accept the submissions for the Crown that the Judge was entirely correct to focus on the circumstances of the case and that many of the sentencing decisions in this area are unhelpful other than for broad statements of principle. We further accept that some of the cases to which we have been referred indicate a level of sentencing that could only be described as extremely lenient. As this Court said in entirely different circumstances:

Violence inflicted upon a child is worse than that directed at another adult.  Defencelessness and vulnerability are significant features, as is abuse of a position of power and responsibility.  The fragility of young children, particularly infants, is frequently referred to, and too often overlooked.  The lethal consequences of shaking and striking babies is often enough publicised.  There can be little reduction in criminality these days for a claim that the danger was not realised.  R v Leuta [2002] 1 NZLR 215 para [77].

[16]     It is accepted for the appellant that a sentence of imprisonment was an inevitable outcome.  It is, however, submitted that when considering the range of other sentences that have been imposed in the lower Courts and upheld in this Court on appeal the starting point was manifestly excessive.  For the respondent it is submitted that a starting point close to the maximum available for a charge of injuring with intent to injure was entirely appropriate having regard to the seriousness and the extent of the injuries.  Indeed, the Crown submits that the appellant could think himself fortunate to have not faced the more serious charge of wounding with intent to injure.

Comment

[17]     We think it has to be noted that while the emphasis has been upon the Judge taking four years imprisonment as a starting point, that included her assessment of the aggravating features.  The aggravating circumstances of this offending were in fact so substantial that it is apparent that her true starting point is at a considerably lower level than four years imprisonment.  We think therefore the emphasis in this case has to be upon whether the ultimate sentence was appropriate having regard to all the circumstances of the case.  That indeed was the manner in which the sentencing Judge approached the matter.  We agree with the submissions for the respondent that the Judge was entirely correct to adopt a sentence close to the maximum available for the offence.  This was dreadful offending against a young, defenceless child.  Although it may have all occurred on one day, it is apparent it was not a single incident but a series of incidents for the injuries to be as severe as they were.  It is also apparent, as the sentencing Judge noted, that there was a high probability that some of the offending involved the use of objects.  When to these aggravating features relating to the offending are added the additional aggravating features already traversed relating to the circumstances of the offending and of the appellant, the Judge was fully entitled to impose a sentence close to the maximum.  The appellant knew the child had been injured just a day or two previously.  He was the sole caregiver for the child at the time.  There were the other factors spelt out by the sentencing Judge.

[18]     Nor do we consider that the appellant’s submission that there were mitigating circumstances relating to the offending has any merit.  The appellant’s unfortunate background and the inappropriateness of him being in control of the child are neutral features.  They do not reduce the appellant’s culpability for his actions.  They may assist in explaining why he offended but are not an excuse for the offence.

[19]     On balance we consider that the sentence imposed well within the Judge’s sentencing discretion.  However the sentence is approached it could not be said to be manifestly excessive.

Result

[20]     The appeal against sentence is dismissed.

Solicitors

Crown Law Office, Wellington