Lim v The Queen - [2019] NZHC 721

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lim v The Queen

Details

AGLC: Lim v The Queen [2019] NZHC 721
Case: [2019] NZHC 721
Decision Date: 5 April 2019

CaseChat Overview and Summary

The appeal against the sentence imposed by Judge Barry was dismissed by the High Court. The appellant, Benjamin Lim, had pleaded guilty to two charges of wounding with intent to cause grievous bodily harm. He was sentenced to six years and nine months imprisonment, with a minimum period of imprisonment (MPI) of 50 per cent of the term. The appellant's key arguments were that the starting point was too high and that insufficient credit had been given for mitigating factors, and that the imposition of an MPI was in error given his low risk re-offending profile, remorse and previously "blameless life". The court found that the District Court Judge correctly adopted a starting point of 10 years imprisonment, given the extreme violence and seriousness of the injuries, and the infant's vulnerability. The court also found that the Judge's discount for mitigating factors was appropriate and that the imposition of an MPI was justified in light of the need for denunciation and deterrence. The appeal was dismissed.

Orders