R v Filo

Case [2007] NZCA 20 22 February 2007

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA408/06
[2007] NZCA 20
THE QUEEN
v
LATU FILO
Hearing:14 February 2007

Court:Robertson, Ronald Young and Venning JJ
Counsel:M F Tuilotolava for Appellant

E M Thomas for Crown

Judgment:22 February 2007 at 3 pm

JUDGMENT OF THE COURT

THE APPEALS AGAINST CONVICTION AND SENTENCE ARE DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Introduction
[1]       On 25 August 2006 the appellant was found guilty of causing grievous bodily harm to a child, with reckless disregard for the child’s safety. He was sentenced to three years’ imprisonment. The appellant was acquitted of the more serious charge of causing grievous bodily harm with intent to cause grievous bodily harm.
[2]       Mr Filo appeals against conviction on the basis that the Judge’s direction to the jury was inadequate and against sentence on the basis that the term of imprisonment was manifestly excessive.
Background
[3]       The incident occurred early on the morning of 21 August 2002. The appellant, his partner, their two old year old child and the partner’s nephew, the victim, were living in the home. The victim was six months old. The previous day the victim had been seen by a doctor on an unrelated matter and was reported as being generally in good health at that time.
[4]       The victim’s crying woke the appellant. He got up and went to the victim. The appellant attempted to pacify the victim but the child would not settle. The appellant then took a number of steps to try and make the victim stop crying. In the course of that, the appellant caused a number of injuries to the victim. The injuries were consistent with impact trauma and with the victim having been shaken. The injuries were also consistent with the victim’s head being hit on a hard object.
[5]       The victim began to have difficulty breathing. The appellant woke his partner. An ambulance was called. The victim was admitted to Middlemore Hospital and then later to Starship Children’s Hospital. Treatment was necessary to relieve pressure on his brain. The victim spent three days in intensive care and, in total, 16 days in hospital. Evidence was led at trial that the victim sustained:
·     severe bleeding inside the brain;
·     bleeding between the brain and skull;
·     swelling to the brain;
·     severe retinal haemorrhaging; and
·     bruising to the forehead, lower lip and arm.

[6] The defence at trial was wide-ranging. First, the defence suggested the injury could have occurred any time after the child was seen by the doctor the day before and between the hours of 7.30 a.m. and 8.00 a.m. on the morning of the 21^st when the 111 call was made. Next, if the injuries were caused on the morning of the 21^st, defence counsel submitted there was no evidence the appellant had caused them. Counsel submitted that the injuries may have been caused by an accident, possibly a fall. Counsel then submitted that it was a…

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 R v Filo

Details

AGLC: R v Filo [2007] NZCA 20
Case: [2007] NZCA 20
Decision Date: 22 February 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Latufilo appeals against his conviction and sentence for causing grievous bodily harm to a child with reckless disregard. The appeal against conviction argues that the trial judge’s direction to the jury was inadequate. The appeal against sentence argues that the term of imprisonment was manifestly excessive. The Court found that the trial judge provided a fair summary of the defence case and did not err in directing the jury. The sentence imposed was well within the range available to the judge. The appeals against conviction and sentence were dismissed.

The primary legal issue in this case was whether the trial judge adequately summarised the defence case to the jury. The appellant argued that the trial judge’s summing up was inadequate because it failed to sufficiently address the evidence of an expert witness called by the defence. The Court found that the trial judge’s summing up was adequate. The trial judge provided a detailed summary of the defence case, including the expert evidence, and identified the crucial questions for the jury. The Court concluded that the trial judge’s summing up was clear and that the jury would have understood the basis of the defence case. The Court found that there was no misdirection.

The Court also considered the appeal against sentence. The appellant argued that the sentence of three years’ imprisonment was manifestly excessive. The Court found that the sentence was well within the range available to the judge. The maximum penalty for the offence is seven years. The Court noted that assaults on children warrant sterner sentences than like assaults on adults. The Court concluded that the sentence imposed was appropriate given the circumstances of the case and the injuries sustained by the victim. The Court also found that the judge was entitled to uplift the starting point of the sentence by three months to take account of the appellant’s previous convictions for violence.

Orders