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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…
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