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 Court may only disturb a sentence if it is satisfied there has been an error in the sentence imposed and that an alternative sentence should be substituted.1

If the sentence can properly be justified having regard to relevant sentencing principles, an appeal Court cannot substitute its own views for those of the sentencing Judge.   The sentence must be either manifestly excessive or inappropriate. Furthermore, it is not sufficient if the Judge has made an error in his or her reasoning: the focus is on the end sentence rather than the process by which that sentence has been achieved.2

The appeal

[9]      By reference to a number of sentencing decisions, Mr Williams on behalf of the appellant submitted the starting point taken by Judge Saunders was too high.  He argued that a more appropriate starting point would have been 18 months imprisonment based upon the relative seriousness of Mr Matthews’ actions.   He emphasised the incident was an isolated one which was not part of any pattern of violence, and it had only occurred as a result of Mr Matthews being temporarily distracted.

[10]     In particular, Mr Williams sought to distinguish previous cases where the offender had deliberately inflicted violence but had been reckless as to the consequences, whereas in Mr Matthews’ case the act itself had been merely reckless. Mr Williams submitted that, while Judge Saunders had recognised that distinction, he had failed to allow for it in setting the starting point. He described previous cases that had been referred to the sentencing Court by the Crown as being far more serious, involving, as they did, deliberate acts of violence.

Analysis

[11]     A number of sentencing decisions were discussed by counsel in their written and oral submissions, some of which were considered during the course of the District Court sentencing process.  Mr Williams and Ms Dayal on behalf of the Crown made competing submissions regarding whether these authorities concerning the reckless infliction of harm supported their respective positions.

[12]     In R v Sisley, a starting point of three and a half years imprisonment was taken where the defendant seriously assaulted a nine month old baby.3   Subdural bleeding and retinal haemorrhages had been caused as a result of what was believed to have been the defendant’s violent shaking and/or striking of the baby’s head against a hard surface. Similarly, in R v Brown, the Court of Appeal indicated that a starting point of three and a half years imprisonment was appropriate in a case where a defendant had punched his 14 month old son in the face causing him serious injuries.4

[13]     In R v Rihia, a starting point of two and a half years imprisonment was applied where a defendant had punched another bar patron during the course of a disagreement.5  The punch had resulted in the victim losing consciousness and falling to the ground. While the offending was against an adult, the case provides an example of offending involving a single isolated piece of violence albeit as the result of a deliberate blow.

[14]    In R v Wilson, the respondent was sentenced to three and a half years imprisonment after being found guilty on several charges of assault against a baby between the ages of 6 to 12 weeks.6   These included assaults that had resulted in the breaking of the baby’s forearm, ribs, collarbone, a fractured skull and broken leg. The sentencing Judge adopted a starting point of four and a half years imprisonment with an end sentence of three and a half years.  On a Solicitor-General’s appeal the Court of Appeal observed that such offending could have attracted a starting point of eight years imprisonment, and the sentence imposed was more appropriate for a serious one- off assault on a very young child. The original sentence was substituted for one of six years imprisonment. The offending in that case is far removed from the present, however, the endorsement of a three and a half year sentence for a serious act of violence on a child is worthy of note.

[15]     Mr Williams submitted these cases, both at first instance and on appeal, involved significantly more serious offending, where an infant had been subjected to

violent shaking, or been the subject of deliberate blows or acts of violence.   He

3      R v Sisley [2014] NZHC 396.

4      R v Brown [2009] NZCA 288.

5      R v Rihia [2016] NZCA 90.

6      R v Wilson [2004] 3 NZLR 606 (CA).

contrasted that with the reckless nature of Mr Matthews’ actions in pulling the baby out from under him and being reckless as to the consequences which followed, which he submitted should attract a significantly lower starting point.

[16]     In Waitohi v R, the appellant was convicted of wounding and injuring a baby with reckless disregard, for which he was sentenced to six and a half years imprisonment.7  The wounding charge involved the appellant jamming his finger down the throat of his 27 day old victim.  This resulted in a large tear to the back of the victim’s throat, requiring her to be hospitalised and fed through a tube for some two months before being discharged. The injuring charge related to the victim having most likely been squeezed by the appellant, causing two ribs to fracture.

[17]     The sentencing Judge took a starting point of four and a half years for the wounding charge.  A further two and a half years was added for the injuring charge, which  was  reduced  by  one  year  in  recognition  of  totality.    While  Mr Williams submitted this case was again significantly more serious than the present offending, the Crown emphasised the Court of Appeal’s endorsement of the separate cumulative sentence of two and half years imprisonment for the lesser charge of injuring with reckless disregard.

[18]     On appeal, the Court of Appeal observed that the earlier cases of Brown and Wilson predated the enactment of s 9A of the Sentencing Act 2002 (the Act).  This provision requires a Court when sentencing offenders for violence against children to take into account particular factors, including the defencelessness of the victim, the seriousness of the injury caused, and the breach of trust involved in the offending. The Court of Appeal recognised that s 9A had been enacted in response to a growing concern regarding the infliction of violence on children and the need for a sterner approach.  It noted that this legislative initiative may render earlier sentences of less value when setting an appropriate sentence for such offending.8

[19]     As Ms Dayal submitted on behalf of the Crown, it is clear Judge Saunders recognised the offending in the present case was less serious than in a number of the

7      Waitohi v R [2014] NZCA 614; R v Waitohi [2014] NZHC 1018.

8      R v Pene [2010] NZCA 387 at [13]; R v Hall [2012] NZCA 518 at [18].

earlier sentencing decisions to which he had been referred.   In particular that the injuries were neither life-threatening, nor was there any suggestion of any permanent disability.  The Crown submitted the adjustment Judge Saunders made in setting the starting point was appropriate having regard to the factors set out in s 9A of the Act, including the very young age of the child, and Mr Matthews’ motivation at the time, reacting, as he did, out of anger and annoyance.

Decision

[20]     While I appreciate the difference Mr Williams seeks to make between the nature of the acts of violence the subject of earlier cases and the physical action of

Mr Matthews in the present offending, I do not consider that distinction entirely bears scrutiny. Mr Matthews is charged with having recklessly caused grievous bodily harm as a result of his deliberate application of force to a very young child.

[21]     He intentionally grabbed and pulled the child while she was pinned underneath his leg.    This was an entirely deliberate action which involved an excessive and unacceptable level of force.  However, I accept while it was a violent act, it can be distinguished from a deliberate blow or an act which inherently carries with it the intention or likelihood of harm.  The nature of the act in the present case can perhaps be likened to where an offender, in a state of frustration, grabs, shakes or squeezes a baby, recklessly causing harm.

[22]     I  consider  Mr Matthews’ offending  to  be  analogous  in  terms  of  relative seriousness to the lesser charge in Waitohi.  In that case two of the child’s ribs were broken by the offender squeezing him, and a starting point of two and a half years was adopted.  However, having made that observation, I accept Mr Williams’ submission that the physical act or mechanism by which the baby’s injury was sustained was unusual and must be considered less serious in the absence of any associated violence or mistreatment of the child.

[23]     Regard must always be had to those matters which the Court is required to consider under s 9A of the Sentencing Act.  In particular, the child’s vulnerability, the inherent breach of trust involved in a parent seriously harming his child, and the

consequences for the child.  These are all matters which in the circumstances of this case a sentencing Court is required to be cognisant.

[24]     Notwithstanding those circumstances, I accept Mr Williams’ submission that there was no reasonably available inference from Mr Matthews’ physical action from which to conclude there was any intention to deliberately cause pain to the child. Accordingly, I consider it was necessary for the sentencing Judge to adopt a lower starting point than he did in order to accurately reflect the relative culpability of

Mr Matthews when compared with other cases involving the reckless infliction of harm. A starting point of two years would have been within range.

[25]     Mr Matthews was afforded a generous 20 per cent credit for his guilty plea which was not entered until some seven months after his first appearance. As a result, no further adjustment beyond a six month reduction in the starting point is required. While not articulated by the sentencing Judge, this credit likely took into account considerations of remorse and the personal circumstances of Mr Matthews which were canvassed earlier by Judge Saunders in his sentencing remarks in respect of the dishonesty offending.

[26]     The appeal against sentence is allowed. Applying a starting point of two years, followed  by a  20  per  cent  reduction,  results  in  an  end  sentence  of  19  months imprisonment.  The original sentence of two years imprisonment on the charge of recklessly causing grievous bodily harm is quashed and substituted with a term of one year and seven months.  The effective cumulative term of imprisonment of two years for Mr Matthews’ dishonesty offending remains unaffected.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co, Christchurch