R v B HC Tauranga Cri-2012-463-54

[2013] NZHC 2638

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2012-463-54 [2013] NZHC 2638

THE QUEEN

v

B 

Hearing:	10 October 2013
Appearances:	GC Hollister-Jones for Crown T Rickard-Simms for Accused
Sentence:	10 October 2013

SENTENCING NOTES OF TOOGOOD J

R v B   [2013] NZHC 2638 [10 October 2013]

[1]      B  , you appear for sentence having been convicted by a jury on one count of causing grievous bodily of your infant son, K, with reckless disregard for his safety.1

Background

[2]      The background facts are not straightforward.  In 2009, when you were about

38 years old, you began a domestic relationship with Ms W, K’s mother, a slightly built girl with whom you began to live as soon as she turned 16.  You lived in a remote part of the M among the foothills of the Uruwera National Park. The living conditions were very basic.   When you first became violent towards Ms W is not clear but I am satisfied from the evidence she gave at your trial, and from what I know about charges of assaulting her to which you pleaded guilty,2 that you became a domineering, manipulative partner who was quick to resort to violence to ensure that Ms W did whatever you required.

[3]      The relationship came to a violent end on the morning of 22 April 2011, when K was approximately four months old.  An argument developed during which, as you had in the past, you grabbed Ms W by the hair and started slapping her face. You told her that you were over her and that she should leave.  When Ms W refused, you grabbed a piece of wood and threatened her with it.  Ms W tried to pick up K who was still being breastfed but you grabbed the child and told Ms W to leave without him, which she did.

Circumstances of the alleged offence

[4]      After you forced Ms W out of the home, you became K’s principal caregiver. On Thursday 28 April 2011, you were staying at the house of a friend, Miriam Maxwell, and her partner and their children.  Some of your other children were also

present.

1      Crimes Act 1961, s 189(2). The maximum penalty is seven years’ imprisonment.

2      The background facts to three convictions are described in R v B   [2013] NZHC 2415 at

[11], [12] and [15].

[5]      K was in your care for most of the day.  At around 3:00 pm, you bathed the baby with the assistance of some of your other children; nothing appeared to be untoward, and following his bath and being fed, K was put to bed.   At around

6:00 pm  you  were  having  dinner  with  the  other  occupants  of  the  house.    K apparently woke up and started crying.  You interrupted your meal and went to the bedroom to attend to the baby.

[6]      After spending some 30 seconds or so alone with K in the bedroom, you emerged holding K and saying that he did not think he was breathing.  The child’s lips were purple and his eyes were rolling to the back of his head.  Ms Maxwell went over to you and put her finger down K’s mouth to clear his airway.   The baby resumed breathing.  An ambulance was called and arrived 15 or 20 minutes later. After the ambulance officers assessed the child they considered no further treatment was necessary and left.  You did not tell them that K had stopped breathing; they thought K had had a choking fit after feeding and that you were just an over-anxious parent.

[7]      A short time later, however, K had what appeared to be a seizure during which time the child appeared to have difficulty breathing.  Ms W was summoned and she arrived at the house.  Other seizures occurred during the evening.

[8]      The next morning K continued having seizures and after you telephoned a helpline Ms W, Miriam and you took K to Whakatane Hospital. A paediatrician who examined K there reported his condition as being very serious, the baby having had a short but intense history of seizures which were slow to respond to treatment.  A CT scan  revealed  bleeding  around  K’s  brain  and  the  baby  was  flown  to  Starship Hospital.  On further examination he was found to be suffering from injuries which the medical specialists considered were the consequence of child abuse:   bleeding around the brain requiring surgical drainage; severe extensive brain injury; severe extensive bleeding at the back of both eyes; and permanent moderate to severe neurologic disability.

[9]      There was also evidence of old bleeding which the doctors considered to be most probably the result of a previous inflicted head injury although they could not

identify when that may have occurred, possibly some weeks before the date of K’s

admission to hospital.

[10]     Based on the expert medical evidence given at the trial, it was the Crown’s case that you caused K’s serious head injuries while you were alone with the baby for about 30 seconds on 28 April 2011, probably through shaking or some other violent act such as throwing the child onto a bed. There were no external injuries.

[11]     You denied responsibility when twice interviewed by the Police saying that you loved your son and would never hurt him.  You denied ever having shaken him. You  did  not  give  evidence  at  your  trial  but  your  defence  was  based  on  the proposition that the Crown had not proved when and how K was injured or by whom.

[12]     You continue to deny responsibility but I have no doubt the jury was right to convict you.  That view is based not only on the compelling medical evidence that K suffered severe deliberately-inflicted trauma just before he first appeared unwell on

28 April but also on other evidence, which I accept, from Ms W and your daughter, P, who at the time was just under seven years old.

[13]     Ms  W  gave  evidence  under  the  propensity  rules  that  some  time  before

28 April 2011, at your home, you became angry when the baby was crying, picked him up and said “Shut the fuck up” while shaking the child.  Ms W alleged you then slapped K’s face and said “He aint getting away with shit with me”.   She said K would not stop crying and you then got up and threw him some distance onto a bed. Ms W said that the child was still for a while and remained crying until comforted by her.

[14]     In an evidential interview recorded on 5 May 2011, your daughter P was asked whether anyone had ever been  rough with K.   In a response which  was spontaneous and unprompted, P said it was mostly her “Dad because he gets angry.” When asked “How does he get rough with K”, P said “... sometimes he shakes him and chucks him in the air and catches him.”  She explained that “chucking him in the air and catching him” was done when her Dad was happy.  When asked “What does

Dad do when he’s angry with K”, she replied “he throws him around, just like, onto the bed”, which she described as “a little bit hard”.  When asked what her Dad says to  K  when  he  throws  him  around,  P replied  “Stop  being  naughty”.    She  then demonstrated a shaking movement.  P said she had not seen you shake K on 28 April but she timed the other shaking initially at “four sleeps” earlier and then at some other times which she said were “10 ... oh, heaps of days ago.”

[15]     Although you called a witness who said that P had volunteered to him just after that interview that she had lied, I have no doubt that the jury accepted the child’s account as true, as I did.   Ms W also gave evidence, which I accept was truthful, of other occasions on which you behaved violently towards K when you became angry at his crying.  So I sentence you on the basis that what you did to K on

28 April 2011 was not an isolated incident.

Earlier related offending

[16]     You were found guilty of this offence at a retrial. At a jury trial presided over by Duffy J in August and September last year, you faced a charge that on 28 April

2011 you caused grievous bodily harm to K with intent to cause him grievous bodily harm.  It was understandable that you were acquitted of that charge, but that jury was unable to reach a verdict on the alternative charge of recklessly causing grievous bodily harm on which you were retried.  At that first trial you were convicted of a number of other charges after pleading guilty to four counts of assaulting Ms W and you were found guilty by the jury on one count of wilfully attempting to pervert the course of justice.  One of the assault convictions related to an attack on Ms W at a motel in Auckland where you were staying while K was in hospital.

[17]     Duffy J sentenced you to an effective sentence of 15 months’ imprisonment on these charges,3 cumulative on a sentence of two years and three months’ imprisonment  you  were  already  serving  for  possession  of  cannabis  for  supply. A sentence  of  nine  months’  imprisonment  was  imposed  for  the  assaults.    The conviction for attempting to pervert the course of justice arose from a number of

threats you asked family members to pass on to Ms W that she was going to get

3      R v B   [2012] NZHC 2879.

beaten up if she gave evidence against you about your violent treatment of her.  On a totality basis, a sentence of six months’ imprisonment cumulative on the assault charges was imposed.

Personal circumstances

[18]     You are 41 years old.   K is the youngest of your nine children from three relationships.  You have been affiliated with the Mongrel Mob in the past but you report that you have now left the gang.  In the past you have found employment in breaking-in horses and doing track cutting for the Department of Conservation.

Previous convictions

[19]     You have 14 previous convictions.  These include the counts on which you were sentenced by Duffy J.  As well as the four convictions for assaulting Ms W, there are three other convictions for assault and you received a prison sentence for two  of  those,  the  most  recent  being  in  2011.    There  is  also  a  conviction  for possession of an offensive weapon in 2004 for which you received a fine.

Pre-sentence report

[20]     You waived the right to an updated pre-sentence report but I have had the benefit of the report which was prepared in October 2012.  The writer of the report said that relationship issues, a propensity for violence and a misguided sense of entitlement are the three main factors contributing to your offending.  That confirms my view that, at least up to the time you began serving these prison sentences you took advantage of your size and strength to control Ms W through violence and fear, and that you snapped into a violent temper when upset by the behaviour of others around you, including your baby son.  You have admitted that tendency in the past. Although it might be a reasonable inference that this behaviour was not confined to Ms W and K, I have no evidence that you conducted yourself violently in your other relationships and I do not assume that.

[21]     The  2012  report  indicates  that  since  you  have  been  in  prison  you  have completed a domestic violence programme and you have spent time in segregation away from negative gang influences.  The report writer noted that you had shown a willingness to engage in rehabilitative programmes and further educational studies.

[22]     On the whole, the report writer assessed you as posing a medium to high risk of reoffending, especially if substance abuse continued to be a problem for you, but it was considered that your risk has the potential to reduce if you continue to distance yourself from gang associates and address your rehabilitative needs.  But I note that the report could not, and did not, take into account your violent treatment of a very young baby on at least two occasions, both of which you deny.

[23]     Because of your continued denial of this serious offending, I hold a more pessimistic view of your likely future behaviour.  I do not doubt that, in your own way, you love your son and you love your other children.  I observed during the trial that at least some of your children and other family members remain fond of you and Mr Rickard-Simms has mentioned that family members are here to support you.  But there is little prospect that you will be able to control your violent temper once you are released until you acknowledge fully what you have done and resolve firmly not to repeat it.  Until then, I consider you will pose a serious risk to the safety of those in close contact with you, particularly the more vulnerable of them.

Purposes and principles of sentencing

[24]      I am required to consider a number of sentencing purposes and principles as set out in the Sentencing Act 2002,4 including the need to hold you accountable for the harm done to K and to promote in you a sense of responsibility for, and acknowledgment of, that harm.  I also need to impose a sentence which denounces your conduct and deters you and others from this sort of offending.  I also take into account the need to protect the community from you, which I think is a particularly

important consideration in this case in relation to whatever domestic relationships you may form in the future.  The gravity of your offending is a relevant factor, but I

am mindful that you were convicted of a charge based on a reckless disregard for the

4      Sentencing Act 2002, ss 7, 8, 9 and 9A.

risk of harm to K, rather than one involving an intention to cause him harm.  I am required as well to impose a sentence which is consistent with other similar cases and I need to impose the least restrictive outcome appropriate in the circumstances.

Sentencing approach

[25]     The sentencing approach I am required to follow5  involves considering the circumstances and seriousness of the offending you committed and setting what is known as the starting point with the aid of any guideline decisions or comparable cases.   I then need to consider whether there are any relevant aggravating or mitigating features personal to you which might increase or reduce the sentence from that starting point.

[26]     In your case, there is the additional consideration that the offending for which I am sentencing you today is closely related to the offending on which Duffy J sentenced you last October.  I must therefore apply the totality principle and adopt an approach6  that considers what the appropriate sentence would be if you were being sentenced for all the relevant offending together, and imposes a sentence on you today which sufficiently uplifts the sentence given by Duffy J to mark the totality of

the offending. Submissions Crown submissions

[27]     The Crown endorses that approach and submits that if all the offending was considered together, this offending would be the lead offence.  It is argued that the appropriate starting point would be in the vicinity of three and a half to four years’ imprisonment.  Such a starting point would take account of aggravating factors of the offending such as the age and vulnerability of K; the serious injuries inflicted and

their long term impact; the abuse of trust; and the gross recklessness involved.  The

5      R v Taueki [2005] 3 NZLR 372 (CA); R v Clifford [2012] 1 NZLR 23 (CA).

6      Endorsed by the Court of Appeal in Ludlow v R [2013] NZCA 196 at [21] – [24]. See also H v R

[2013] NZCA 128 and R v Johansen (1997) 15 CRNZ 111 (CA).

Crown says then that an uplift of around 12 months would be appropriate to reflect the offending against Ms W (including an allowance for your guilty pleas) with a further six month term for attempting to pervert the course of justice.  A discount of six to nine months would then be considered appropriate on a totality basis.  After allowances for the sentence imposed by Duffy J, therefore, the Crown invites me to impose a cumulative sentence – that is in addition to the ones you are presently serving - of around three to three and a half years’ imprisonment.

Defence submissions

[28]     On your behalf, Mr Rickard-Simms does not dispute most of what the Crown has had to say.   He says if you were being sentenced for all of the offending, a starting  point  of  around  two-and-a-half  to  three  years’ imprisonment  would  be appropriate and after uplifts for totality an end sentence in the vicinity of three-and- a-half years could be reached.   He then says after adjustments to reflect Duffy J’s sentence, the end sentence today should be one of two to two and a half years’ imprisonment as being appropriate to this single charge.

Starting point

[29]     I agree with counsel that if all the relevant offending was considered together, this present offending would be the lead offence.   In 2008 Parliament enacted legislation7  specifically directed at this type of case and the Courts have accepted this as meaning that harsher penalties for violence towards children under the age of

14 are required.8 The abhorrence of the community to this type of offending needs to

be recognised by giving full effect to the sentencing purposes of denunciation and deterrence.9  The Court of Appeal has also said that in cases involving this sort of conduct against children, the starting point needs to be assessed with regard to the level of violence involved in the particular offending with reference to comparable

cases.10

7      Sentencing Act 2002, s 9A.

8      See for example R v Pene [2010] NZCA 3877 at [12] – [13]; and R v Hall [2012] NZCA 518 at

[18].

9      R v Brown [2009] NZCA 288 at [22].

10 Ibid, at [17].

[30]     There are a number of factors which make this a serious case of its kind, bearing in mind that you have been convicted on the basis that you were reckless as to K’s safety rather than intending to harm him.

[31]     K is your son.  At the time of the offence you had sole care for him because you had violently separated him from his mother.  He was only four months old at the time so, especially in light of the absence of Ms W who had been breastfeeding him at the time you sent her away, he was in every sense vulnerable, defenceless and entirely dependent on you.  His vulnerability was exacerbated by the fact that you lived a very remote location which would make it more difficult for emergency services to come to his aid if injured.

[32]     Your offending was a total breach of trust. The evidence at trial established that as the father of nine children you are an experienced care-giver and that you know that babies need to be supported carefully, especially in relation to supporting their head and neck.  I am wholly satisfied that in a fit of violent temper you shook K or threw him on the bed with such force as to cause severe brain injuries; in that, you were grossly reckless.

[33]     I also take into account the seriousness of the harm caused to K.  The injuries he suffered were extensive and long lasting.  I have no doubt that but for the expert care he received at Whakatane and Starship Hospitals he would have been permanently and seriously disabled at the very least.  In her victim impact statement, Ms W says that K has come a long way since he was first in hospital, but he still needs expert medical care and medication.  He struggles to move the left side of his body and his left foot; he is behind his peers developmentally and cannot fully engage in the normal play and sporting activities of a three year-old.  Although the specialists say K is doing better than anticipated, his future is uncertain and they cannot rule out the need for further surgery.  It is clear that he will never be a normal child, or adult for that matter.

[34]     It counts against you that you did not tell the ambulance officers what you had done when they first visited the property.   The evidence was that if they had been fully informed they would have taken K to hospital for immediate treatment

that night rather than leaving him with you. You get some credit for calling attention to the fact that K had stopped breathing and for your part in getting medical help after K started having seizures but, as the Court of Appeal has noted, it is an all too common feature of cases such as this that the offenders are under pressure at the time and nearly always display some form of remorse afterwards.11

[35]     It is significant that this was not an isolated lapse by you in carrying out an otherwise blameless role as K’s father.   It occurred against a background of your controlling the domestic environment by violence and fear.   Furthermore, your offending against K has caused and continues to cause great distress to his still young mother, and to her parents, and the need for them to care for K is likely to impose a permanent financial and emotional burden on them.

[36]     I have taken these factors into account and considered a number of cases which are, in general terms, comparable.12   This was a serious case of its kind.  I am satisfied that the starting point for the charge of causing grievous bodily harm with reckless disregard for K’s safety must be one of not less than three years six months’ imprisonment.

Adjusting the starting point

[37]     From  this  starting  point,  the  sentence  needs  to  be  adjusted  to  take  into account any personal aggravating or mitigating factors.

[38]     No personal mitigating factors could have been advanced by Mr Rickard- Simms on your behalf.  You continue to deny the offence and you have expressed no relevant remorse for it.

[39]     The only aggravating personal factor is that you have previous convictions related to violence; three for assault and one for possession of an offensive weapon.

Duffy J took that offending into account when you were sentenced almost exactly a

11     R v Pene, above n 8 at [16].

12     R v Devlyn [2013] NZHC 1640; R v Broadbent [2013] NZHC 859; R v Hall [2012] NZCA 518; R v Brown, above n 9; R v Te Waaka HC Auckland CRI-2006-092-015178, 7 April 2008; R v Filo [2007] NZCA 20; R v Peauvale HC Auckland T022287, 6 March 2003; R v Gatland CA330/98, 26 November 1998.

year ago, and the Judge also imposed cumulative sentences of nine months for the convictions for assaulting Ms W, as well as an additional six month term for perverting the course of justice.  Had I been sentencing you for all offending I would have applied uplifts of those amounts on account of those factors.  That would have given an end sentence of five years and three months’ imprisonment which would, in my view, have adequately reflected the totality of your offending.

Minimum period of imprisonment

[40]     You will be eligible for parole after serving one-third of the sentence I am about to impose.  I have given serious consideration to whether I should impose a minimum  period  of imprisonment  in  light  of  your  failure to  acknowledge  your offending and the extra need for deterrence and community protection which that entails.  But the Crown has not sought one and by a slim margin I have decided not to do so.  I am content to leave it to the Department of Corrections to ensure that you receive adequate treatment for your controlling and violent approach to those close to you, which will only succeed if you acknowledge your problems and address them.

[41]     Moreover, the Parole Board will have the power to impose special release conditions, including requiring you to attend counselling or treatment programmes, in the event it considers them necessary to reduce the risk of your reoffending.13

[42]     I direct the Registrar to  provide a copy of  the pre-sentence report dated

4 October  2012  and  a  copy  of  these  sentencing  notes  to  the  Department  of

Corrections and the Parole Board.

Result

[43]     Please stand, Mr B  .

[44]     On the charge of causing grievous bodily harm to K with reckless disregard

for his safety, I sentence you to three years and six months’ imprisonment, that term

13     Parole Act 2002, s 15(2).

to  be  served  cumulatively  upon  the  sentence  imposed  on  you  by  Duffy  J  on

12 October 2012. [45]   Stand down.

.....................................

Toogood J