Lim v The Queen
[2019] NZHC 721
•5 April 2019
NOTE: PUBLICATION OF NAME, ADDRESS, IDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2019-485-5
[2019] NZHC 721
BENJAMIN LIM v
THE QUEEN
Hearing: 2 April 2019 Appearances:
S Thistoll for Appellant
K L Kensington for Respondent
Judgment:
5 April 2019
JUDGMENT OF CLARK J
Introduction
[1] On 6 December 2018, having pleaded guilty to two charges of wounding with intent to cause grievous bodily harm (GBH),1 Judge Barry sentenced Mr Lim to six years and nine months imprisonment.2 The Judge imposed a minimum period of imprisonment (MPI) of 50 per cent of the term of imprisonment. Mr Lim appeals the sentence.
1 Crimes Act 1961, s 188, maximum penalty 14 years imprisonment.
2 R v Lim [2018] NZDC 25779.
LIM v R [2019] NZHC 721 [5 April 2019]
[2]The issues raised by the appeal are:
(a)whether the sentence was manifestly excessive by reason of the starting point being too high and insufficient credit given for mitigating factors; and
(b)whether the imposition of an MPI was in error in light of the appellant’s low risk re-offending profile, his remorse and his previously “blameless life”.
Key facts
[3]The key facts are as follows.3
[4] The victim of the appellant’s abuse was his infant son who was left at times in the sole care of the appellant from the age of approximately two weeks. When the infant was unsettled or crying the appellant became frustrated and angry. On several occasions between 1 May 2018 and 10 June 2018, when the infant was between two and six weeks old, the appellant held the baby under his arms and, putting his thumbs together across the baby’s chest, squeezed his thumbs together and shook the baby back and forth causing his head, arms and legs to shake violently. He would squeeze his son’s ribs, continuing to squeeze until he stopped breathing, went red in the face and stopped crying. On one occasion the appellant became frustrated and angry when changing the infant because he would not keep his legs straight, so the appellant grabbed the baby’s left thigh and forced it violently downwards causing the left femur to fracture horizontally. The summary of facts to which the appellant pleaded guilty records the child was in severe pain from this point and crying for a long period of time.
[5] By the following morning the infant’s leg had swelled to the point he required hospitalisation. Upon admission to hospital, testing revealed the fractured femur. Further testing the following day located five further historic fractures to the right clavicle, right rib, two left ribs and the left humerus. More extensive testing two days
3 I address the facts in greater detail when I come to assess the respective arguments of counsel.
later located an additional 14 historic fractures to the infant including a neck fracture. In explanation the appellant stated he had become very angry and frustrated and “snapped” because the infant cried in his care and he felt he could not be a good father. He took his frustrations out on the infant and wanted him to stop crying. The appellant estimated that he had “snapped” and subsequently squeezed, shaken or slapped his infant son on at least 20–25 occasions since he was two weeks old.
The sentencing decision under appeal
[6] Judge Barry outlined the facts then described the impact of the offending on the child’s mother. The Judge then turned to the reports of the orthopaedic surgeon from the fracture clinic and a spinal surgeon both of whom reported the infant’s improvements notwithstanding the significant injuries.
[7] A psychological report provided helpful background detail. The appellant appeared not to have any mental illness but “a pattern of passivity and emotional repression”. The psychologist assessed the appellant as at low-risk of violent re- offending, but Mr Lim’s poor insight into both violence and emotional control and relationship communication were triggering risk factors. In the opinion of the psychologist the appellant’s “extreme violence” against the child was the result of not coping with the pressures of caring for a new baby and the build-up of repressed emotions.
[8] Judge Barry accepted the Crown’s submission that the offending fell into band three of the R v Taueki sentencing bands.4 Based on the infant’s defencelessness, the utter breach of trust and the effective concealment and denial of treatment, Judge Barry adopted a starting point of 10 years imprisonment.5
[9] Although counsel in the District Court submitted that a discount of 45 per cent from the starting point should be allowed to reflect Mr Lim’s prior good character, remorse, commitment to exploring therapeutic intervention and guilty pleas, Judge Barry was unable to accept that degree of discount.6 From the starting point of
4 At [33]; and R v Taueki [2005] 3 NZLR 372.
5 R v Lim, above n 2, at [34]–[35].
6 At [40]–[41].
10 years the Judge discounted five per cent for prior good record and five per cent for remorse and a commitment to undertake counselling and therapy. From a recalculated starting point of nine years imprisonment the Judge discounted 25 per cent for entry of an early guilty pleas and acceptance of responsibility.7
[10] Turning to the issue of an MPI Judge Barry’s view was that a determinate sentence of imprisonment was insufficient to hold Mr Lim accountable for the harm done, and insufficient to denounce his offending and deter others particularly in light of the aggravating factors the Judge had emphasised.8 Accordingly, an MPI of 50 per cent was imposed.
Approach to appeal
[11] This appeal is governed by subpart 4 of Part 6 of the Criminal Procedure Act 2011. A first appeal under subpart 4 must be determined in accordance with s 250. Section 250 provides:
(2)The first appeal court must allow the appeal if satisfied that—
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
(3)The first appeal court must dismiss the appeal in any other case.
[12] The focus will be on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.9
[13] An appeal against sentence must be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.10
7 At [41].
8 At [45].
9 Ripia v R [2011] NZCA 101 at [15].
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
Analysis
Did the District Court Judge err in adopting a starting point of 10 years imprisonment?
[14] In written submissions, counsel for the appellant (not Ms Thistoll), submitted the starting point should have been nine years imprisonment noting the Taueki bands two and three intercept at their margins. The appellant’s case is that while the violence towards the infant was unprovoked and gratuitous, it was not the kind of “extreme violence” which the Court of Appeal regarded as a factor impacting on an offender’s level of criminality. Ms Thistoll invited the Court to make the distinction between prolonged violence, at which Taueki is aimed, and serious injury. Ms Thistoll submitted that properly analysed the starting point in the circumstances of this case should reflect the seriousness of injury to the infant. Counsel cited the following passage from Taueki:11
An offender who acts with intent to cause grievous bodily harm and does, in fact, cause such harm cannot escape responsibility for the consequences of his or her actions. However, care has to be taken not to double-count the level of violence inflicted and the seriousness of the injuries which resulted from it.
[15] Counsel submitted the appellant’s offending properly falls within band two because there are two aggravating features (serious injury and victim vulnerability) whereas band three encompasses serious offending with three or more aggravating features.
[16] I am not persuaded by the submission. As the Court of Appeal emphasised in Taueki, the sentencing bands are ranges of starting points with overlap at the margins to reflect that categorisation of GBH offending “is an evaluative exercise involving the exercise of judgment, rather than a formulaic categorisation of criteria”.12
[17] I have no hesitation in agreeing with the District Court Judge that a starting point in band three was appropriate in this case given the combination of particularly grave aggravating features.
11 R v Taueki [2005] 3 NZLR 372, at [31](c) (counsel’s emphasis).
12 At [35](b).
(a)The violence was indeed ‘extreme’. I consider a distinction is properly made in this case between extreme violence and serious injury. Both occurred. Frequently, as noted by the Court in Taueki, extreme violence manifests itself in street attacks, where weapons are used and where there are multiple attackers.13 But the features of the offending in each case are to be carefully assessed. In this case the appellant engaged in episodic, insidious and dangerous assaults on the infant. The appellant says he ‘snapped’. But the ‘snapping’ explanation does not sit well with the appellant’s acceptance of his intent to cause grievous bodily harm on 20–25 occasions over a four-week period. The infant was rendered unconscious on more than one occasion and the violent act of forcing his leg in such a way as to cause the femur to completely fracture cannot sensibly be regarded as other than ‘extreme’. He undoubtedly, in my view, engaged in extreme violence.
(b)While the spinal surgeon reports that the child’s spinal cord “is for now relatively safe” he is unable to be sure of the effect of the injuries on the growth of his bones in the upper neck. His team has seen children who have had significant fractures in early childhood develop significant spinal deformities as they hit a growth spurt at puberty and surgery may be required at some future stage for this infant. The orthopaedic surgeon warned that with time the femoral fracture may lead to a discrepancy in leg length, but this is not something that can be known for a long time. At the time of the report, in November 2018, the surgeon had referred the child to a neuro-developmental therapist because he was not using his left arm as well as he might. As to the seriousness of the injuries it is not necessary that grievous bodily harm be permanent or dangerous “if it is such as seriously to interfere with comfort or health”.14 There can be no argument about the seriousness of the injuries, nor is there argument. Ms Thistoll invited the Court to analyse the circumstances as a ‘serious injury’ rather than an ‘extreme violence’ case. The infant presented with 19 historic fractures including
13 At [39](a).
14 Adams on Criminal Law at CA 188.01 citing R v Ashman (1858) 1 F & F 88, 175 ER 638 (QB).
a neck fracture. These were in addition to the fractured leg. He was eventually released following a prolonged stay at Starship Hospital recovering from his multiple orthopaedic injuries.
(c)The infant was between two weeks and six weeks old when he suffered these episodes of violence. He was the epitomy of vulnerability and defencelessness.
(d)I do not agree with the approach advanced by the appellant which would have vulnerability and breach of trust viewed as one aggravating factor in the circumstances of this case.
(e)Where the victim is a child in the offender’s care then, in line with s 9(1)(f) of the Sentencing Act, this breach of trust will be additional to the aggravating factor of vulnerability.15 Taueki was decided in 2005 prior to the enactment of s 9A of the Sentencing Act. The effect of s 9A is that consideration of breach of trust is no longer simply a discretionary matter for the courts. In Waitohi v R the Court of Appeal reiterated that s 9A:16
was enacted to emphasis Parliament’s concern about cases involving violence against children and that it signalled tougher sentences might be required.
(f)Section 9A requires the Court to take into account the magnitude of the breach of trust between the victim and the offender. Section 9A reflects a “discrete concern that [children and vulnerable adults] require protection from ill-treatment and neglect”.17 Breach of trust is therefore an aggravating factor to be taken into account in addition to the seriousness of the harm and the defencelessness of the victim.
(g)A further aggravating factor is the concealment of the offending not just from authorities but from the medical professionals who could have
15 R v Taueki, above n 4, at [31](i).
16 Waitohi v R [2014] NZCA 614 at [22].
17 M v R (CA559/2015) [2016] NZCA 53 at [32].
attended to the infant’s suffering and injuries much earlier. As the Crown submitted the appellant did not seek any support or help to assist him with his bursts of anger and subsequent assaults on his son. Further, the appellant only sought medical treatment when the leg fracture resulted in such swelling that admission to hospital was required.
[18] In summary, the victim was a two–six-week old baby — “the most vulnerable victim possible.”18 There was an extended period of assaults amounting to what I regard as extreme violence resulting in unquestionably serious injuries. The combination of aggravating features being particularly grave the Judge correctly determined band three as the appropriate band.
[19] The appellant’s overall culpability is properly reflected in the 10 year starting point which Judge Barry fixed. Ms Thistoll identified four cases in support of the proposition that the starting point should have been limited to nine years imprisonment.19
[20] I do not read those cases as supporting, for consistency or for any other reason, a starting point of nine years imprisonment for the appellant.
(a)In R v Wilson the victim was the offender’s daughter, aged between six and 12 weeks at the time of the offending. She suffered gross injuries as a result of assaults on her on numerous occasions. The Court of Appeal considered this “could well have attracted a starting point of eight years imprisonment” given that the only difference between that case and manslaughter cases was that the child, fortuitously, did not die as a result of the injuries. But R v Wilson predates both Taueki and the enactment of s 9A.
(b)Similarly, R v K & M predated the enactment of s 9A and R v JTH is distinguishable particularly as medical attention was sought.
18 Waitohi v R, above n 16, at [26].
19 R v Wilson [2004] 3 NZLR 606 (CA); R v K and M (CA97/07) and (CA158/06), 19 September 2006; R v JTH [2015] NZHC 562 and Strydom v R [2018] NZHC 358.
(c)In Strydom v R the appellant pleaded guilty to a charge of causing grievous bodily harm to his six-week old son and appealed a sentence of four years and six months imprisonment imposed in the District Court. In the High Court Gendall J found the District Court Judge’s starting point of six years was appropriate in the context of the offending and was in line with other authorities.20 I have not found that decision to be relevant nor, therefore, helpful. It involved one charge whereas in this case the appellant pleaded guilty to two charges one of which was representative reflecting the 20 to 25 occasions on which he acknowledged he assaulted his son.
Sufficient credit for mitigating factors?
[21] Ms Thistoll argued that the District Court Judge had correctly identified the relevant mitigating factors when he gave a global discount of 10 per cent for remorse, previous good character and mental health and steps towards rehabilitation but the discount should have been greater.
[22] I have been unable to discern any error in the Judge’s overall approach. On one view of the previous good character, another Judge may have awarded a slightly higher discount. Equally, another Judge may have considered that no discount was warranted for good character in light of the appellant’s preparedness to continue, in secret, to inflict such injuries on the child. As well, Judge Barry awarded the full 25 per cent discount for the guilty pleas but the prosecution’s case was extremely strong. In those circumstances the Supreme Court has observed a discount less than the full 25 per cent otherwise available is likely to be appropriate.21 Remorse has attracted discounts of between five and ten per cent. A five per cent discount was available to the Judge and sufficient to recognise his remorse and rehabilitative efforts in circumstances where the probation officer considered Mr Lim’s expressions of remorse may have obtained an element of self-preservation.
20 Strydom v R, above n 19, at [32].
21 R v Hessell [2010] NZSC, [2011] 1 NZLR 607, at [60].
Was an MPI appropriate?
[23] Ms Thistoll submitted the parole eligibility regime is appropriate in light of the appellant’s prior good record and his culpable remorse and sorrow. Ms Thistoll referred to the Court of Appeal decision in R v Rapira relying in particular on the following passage:22
The Sentencing Act 2002, in providing for eligibility for parole after one-third of a sentence has been served, takes away much of the need for anxious prediction about how an offender will face up to the consequences of the offence and the prospects for his or her successful rehabilitation.
[24] Ms Thistoll argued the combination of the appellant’s “blameless life” and remorse tend to establish he is at low-risk of reoffending and in any event:23
The Parole Board is equipped to undertake the necessary risk assessment. In our opinion it should be left to do so in the normal course of events. To state the obvious, it does not follow that Mr Ali will be admitted to parole at the first opportunity (or at all, for that matter). Our decision establishes only that on the limited information available to the courts, the risk of reoffending is not high enough to justify imposing an increased minimum period at sentencing.
[25] The Crown accepts there is little need to protect the community from the appellant. Ms Kensington points to the assessment of the appellant as being at low risk of reoffending. But, as counsel submits, other factors amply justify the 50 per cent MPI Judge Barry imposed. In cases of offending such as this involving unprovoked, prolonged, serious assaults on infants by their supposed caregivers, the sentencing values of denunciation and deterrence are important. The fact that protection of the community from the offender is not relevant does not mean an MPI should not be imposed. Judge Barry was satisfied:24
… that the seriousness of this offending, seen in light of the primacy of the principles of deterrence and denunciation, underlined by the focus on the aggravating factors for offending on young children (and when I speak of deterrence, I mean not just of Mr Lim but of any person, on a policy basis, who would be wont to commit this type of offending). Those, alongside the aggravating factors that I have laboured at length, mean that the usual period of eligibility for parole, in my view, is insufficient to denounce, deter, or hold accountable Mr Lim for this offending, and that a minimum term of imprisonment of 50 percent is appropriate.
22 R v Rapira [2003] 3 NZLR 794, (2003) 20 CRNZ 396 (CA) at [151].
23 Ali v R [2019] NZCA 35 at [13].
24 R v Lim, above n 2, at [45].
[26] I am satisfied the circumstances warranted the imposition of an MPI at the level imposed.
Result
[27] The appellant has not satisfied me that there is error in the sentence imposed in the District Court and that a different sentence should be imposed. Accordingly, the appeal is dismissed.
Karen Clark J
Solicitors:
Public Defence Service, Wellington for Appellant Crown Law Office, Wellington for Respondent
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