Matthews v Police - [2017] NZHC 2379

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-87 [2017] NZHC 2379

BETWEEN
RODERICK YOUNGER MATTHEWS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 21 September 2017

Appearances:

A Williams for Appellant
S Dayal for Respondent

Judgment:

29 September 2017

JUDGMENT OF MANDER J

[1] The appellant, Mr Roderick Matthews, appeals a two year prison sentence imposed by Judge Saunders on a charge of recklessly causing grievous bodily harm to his six month old daughter. A cumulative sentence of two years on charges of receiving and burglary is not the subject of complaint.

[2] Mr Matthews argues a starting point of two and a half years for the violence charge was too high and resulted in a sentence which was manifestly excessive. The Crown submits the starting point and end sentence was in range.

Factual background

[3] The circumstances in which the offending occurred are unusual. Mr Matthews and his partner were engaged in sex whilst the victim was lying on her front next to

MATTHEWS v NEW ZEALAND POLICE [2017] NZHC 2379 [29 September 2017]

them on the bed. Whilst her parents were having sex the baby’s leg became trapped under Mr Matthews’ knee and as a result she began to cry.

[4] Mr Matthews’ partner told him to desist in the sexual activity. However, he became angry. Without lifting his body weight off the baby, he grabbed one of her limbs and, with an upward movement, attempted to pull her out from under him and to the side. The baby screamed as she was moved and continued to do so.
Mr Matthews’s struck her on the bottom with an open palm to stop her from crying so he could continue having sex before his partner got up to attend to the victim.

[5] As a result of Mr Matthews’ actions and the level of force he applied, the baby received a spiral fracture to the right femur. This is consistent with a twisting force having been applied to the bone. In explanation, Mr Matthews admitted his actions, and stated that, in persevering with having sex with his partner, he was being selfish and thinking only of himself.

Sentencing Judge’s approach

[6] At sentencing, Judge Saunders expressly acknowledged that Mr Matthews had been charged “at the level of recklessness as opposed to intent”. The Judge noted his actions were to be contrasted with those involved in other cases where there had been a deliberate punching of a child. However, his physical reaction had resulted from anger or annoyance at the child. Judge Saunders observed Mr Matthews had treated the child very roughly, causing her obvious pain and discomfort, and resulting in her having to experience a lengthy and uncomfortable period of recuperation including her leg being encased in a cast.

[7] Adopting a starting point of two years and six months imprisonment,

Mr Matthews was afforded six months credit in recognition of his guilty plea.

Approach to appeal

[8] An appeal…

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 Matthews v Police

Details

AGLC: Matthews v Police [2017] NZHC 2379
Case: [2017] NZHC 2379
Decision Date: 29 September 2017

CaseChat Overview and Summary

Roderick Younger Matthews, the appellant, appeals a two-year prison sentence imposed by Judge Saunders for recklessly causing grievous bodily harm to his six-month-old daughter. Matthews argues that the starting point of two and a half years for the violence charge was too high, resulting in a sentence that was manifestly excessive. The Crown contends that the starting point and end sentence were within the appropriate range.

The legal issues before the court were whether the starting point for the violence charge was too high and if the resulting sentence was manifestly excessive. The appeal court noted that it could only disturb the sentence if there had been an error in the sentence imposed and that an alternative sentence should be substituted. The focus was on the end sentence rather than the process by which that sentence had been achieved.

The appeal court found that the starting point for the violence charge was too high and that a starting point of two years would have been within range. The court considered the appellant's physical action in pulling the baby out from under him was reckless but not deliberate. The court also considered the child's vulnerability, the inherent breach of trust involved in a parent seriously harming his child, and the consequences for the child. The appeal against sentence was allowed, and the original sentence of two years imprisonment on the charge of recklessly causing grievous bodily harm was quashed and substituted with a term of one year and seven months.

The final orders of the court were that the appeal against sentence was allowed, and the original sentence of two years imprisonment on the charge of recklessly causing grievous bodily harm was quashed and substituted with a term of one year and seven months. The effective cumulative term of imprisonment of two years for the appellant's dishonesty offending remained unaffected.

Orders