R v K
[2013] NZHC 2947
•8 November 2013
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE CHILDREN.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-202-004-012492 [2013] NZHC 2947
THE QUEEN
v
K
Hearing: 8 November 2013
Appearances: K Glubb and E Woolley for Crown
C J Robertson for Prisoner
Judgment: 8 November 2013
SENTENCING REMARKS OF LANG J
R v K [2013] NZHC 2947 [8 November 2013]
[1] Mr K, you appear today for sentence having pleaded guilty ten days before the commencement of your trial to 21 charges. Each of the charges alleges violent offending against members of your family.
[2] You have pleaded guilty to one charge of intentionally ill-treating children, seven charges of assault with a weapon, five charges of assault on a child, four charges of injuring with intent to injure, two charges of assault with intent to injure, one charge of wounding with reckless disregard and one charge of assaulting a female. Those charges each carry maximum sentences of between one and ten years imprisonment. I will set out the maximum sentence available in respect of each charge in an appendix at the end of my sentencing remarks.
The facts
[3] The facts that give rise to the charges are contained in a summary of facts with which you take no exception. I do not propose to set out the factual background to each charge in any detail. The attached appendix sets out the individual counts, and the basic allegations that make up each count.
[4] Your offending was against six separate victims. They were your former wife and your five children. The offending occurred over a period of approximately five and a half years between November 2006 and June 2012. The most serious offending against your children was in relation to your oldest son. He was aged between five and nine years at this time. On several occasions you stomped on his head. As a result, he received a severe haematoma on the side of his face. You would regularly punch his head, face and stomach and you would also strangle him. You would throw him against walls and push him to the ground. You would also use implements such as an extension cord, a broomstick and a spoon to beat him.
[5] You also offended in a similar way against two other children, a set of twins, who were aged between five and seven years old at the time. Your offending against them included choking them, throwing them to the ground, punching them in the stomach and striking them with implements such as an extension cord, a vacuum cleaner pipe and a spoon.
[6] You offended against your two youngest children, who were twins, and just nine weeks old at the time of the offending. You verbally and physically abused them. The physical abuse included rubbing stubble on your face against their faces, thereby producing a rash. You pinched and slapped them, and would pick them up with one arm before throwing them into their cots and onto beds. As a result of this violence, one of the young twins was found to have a bone fracture to his right shoulder.
[7] You met your former wife in 2001, and married her in 2002. The relationship appeared to go well until about 2005. She says that at about this time, you began drinking alcohol more frequently and violence in the home began in earnest. You have been both verbally and physically aggressive towards her. On many occasions you have punched and kicked her to her face, body and head. Alarmingly, you would also punch and kick her in the stomach whilst she was pregnant.
[8] On one occasion, when she was seven months pregnant, you punched her in the face so hard that she lost a tooth. At around that time, you also threw a hot cup of tea at her face and hit her with a broken metal chair. On yet another occasion, you dragged your former wife from a car by her hair. She fell to the ground, where you kicked and punched her around the head. You then went into the house ahead of her and got a hammer. You made her sit down on a chair, and then you hit her knees repeatedly with the hammer causing severe bruising.
[9] The offending came to a head in the early hours of 19 June 2012. On that occasion, you had an argument with your former wife and punched her in the face. At this time she was holding one of the babies and tried to protect both herself and the child from your blows. You punched her in the hand, thereby breaking her finger. You only allowed her to see a doctor on the proviso that she did not reveal how she had received her injury. She returned home and the abuse continued for a short time. At this point, however, she realised she had to do something, and accordingly went to the police.
[10] You have heard today, Mr K, the effects that your offending has had on your victims. I read a letter from your oldest son that makes it clear that he has been
deeply affected by what has happened to him, and what he has seen happen in the family home.
[11] You have also heard today the measured victim impact statement prepared by your former wife in which she details the level of violence that you directed towards her during the course of this marriage. She says that you made her feel worthless to the point where she believed that she had nothing to offer. This led her to attempt to commit suicide on several occasions.
[12] I have no doubt, Mr K, that your offending will have devastating effects on this family for many years to come. They will need assistance from many quarters in order to deal with the issues that your offending will have produced for them.
Sentencing Act 2002
[13] In offending this serious, several sentencing principles come to the forefront. The most important of these is the need to deter both you and others, who might be tempted in the future to engage in conduct like this from engaging in that type of conduct. The Court must also impose a sentence that denounces what you have done, and holds you properly accountable for the damage you have caused to your family.
[14] Having said that, it is important that I impose a sentence that is broadly consistent with those imposed in other similar cases. I use the word “broadly” advisedly because, in this particular area of offending, no two cases are ever the same.
Approach
[15] I propose to engage in a process by which I select a starting point to be applied in respect of the whole of your offending. I will then determine whether or not that starting point needs to be increased to reflect aggravating factors personal to you. I then need to reduce the starting point by mitigating factors that are also personal to you.
Starting point
[16] Fixing the starting point in a case such as this is not easy, because it contains many different forms of offending and it occurred over a considerable period. Nevertheless, both counsel agree that several factors about your offending are relevant when fixing the starting point. First, it occurred over a very lengthy period, some five and a half years. Secondly, it took the form of violence to the body and head, and psychological abuse in many guises. It was repeated, and included the use of implements such as the spoon, the broomstick and the vacuum cleaner pipe. It produced physical injuries, such as the loss of the tooth by your wife and the bruising and other injuries suffered by both your former wife and your children. It also produced the psychological scarring that all of them will carry with them for the rest of their lives.
[17] Another aggravating factor is that this occurred within a home environment. It occurred in a position where you were the father and husband of the household. You, of all people, were expected to set an example and to demonstrate to the family how they should act. Instead, you abused your position and used the opportunity behind closed doors to inflict violence and psychological abuse on them.
[18] Your victims are also vulnerable, none more so than the nine week old twins. How a person in your position could abuse nine week old babies in that way defies belief. All of your victims were vulnerable, because they could not stand up to what you were doing. The situation was aggravated further by the fact that you made threats to your wife as to what would happen if she told others about what was happening in your household.
[19] The only case to which counsel have referred me that I have found of assistance is M v R.1 In that case the offender had perpetrated violence over a period of approximately twelve months on two young victims in his home. It can be argued that the intensity of the violence in that case was slightly higher than in your case. However, it involved just two victims, whereas your offending involved five
children. In addition, the offending in the present case occurred over a much more lengthy period than was the case in M v R.
[20] In that case, the Judge took the maximum of ten years imprisonment. He then reduced the sentence by two and a half years to reflect mitigating factors. The end sentence was upheld on appeal, although I suspect that the Court of Appeal considered the starting point may have been slightly high. I say this because the Court indicated that the generous discount that the Judge applied left the end
sentence within range.2 This suggests to me that the Court considered that the
starting point may have been somewhat high.
[21] In the present case, however, I need to take into account the fact that there were no fewer than six victims, and that your offending occurred in many forms over a very lengthy period. For that reason, I propose to adopt a higher starting point than was adopted in M v R. I consider that an appropriate starting point to reflect the culpability of all of your offending is 11 years imprisonment.
[22] I now need to consider whether or not to increase that starting point to reflect aggravating factors personal to you.
Aggravating factors
[23] You have a number of previous convictions. They fall into two types. The first relates to drinking and driving. The second relates to breach of Court orders. It is clear that you have a problem with alcohol, and this is likely to have played a part in the present offending.
[24] The nature of your previous convictions, however, is such that it would not be appropriate to apply any uplift in the present situation.
Mitigating factors
[25] I now need to consider the extent to which I should reduce your sentence to reflect mitigating factors.
[26] The first, and most obvious of these, is the fact that you have entered guilty pleas. These came very late, and ordinarily they would only attract a discount of around ten per cent. I bear in mind, however, that your guilty pleas have produced two significant benefits.
[27] First, they have saved your victims the trauma of living through the Court trial. That would inevitably have required them to relive the terrible events that occurred in your household between 2006 and 2012.
[28] Secondly, your guilty pleas, together with your statements to the Court today, make it clear that you accept full responsibility for your actions. You accept that your former wife and your children are telling the truth when they describe what happened in your household.
[29] Taking those factors into account, I am prepared to apply a discount of around 15 per cent. This includes an allowance for the remorse that you have expressed both to the probation officer who prepared the pre-sentence report and in Court today. This reduces the sentence to one of nine years four months imprisonment. Given that that falls within the ten year maximum on the charge of intentionally ill-treating the children, I propose to impose the lead sentence on that charge, and to impose concurrent sentences on the remaining charges.
Minimum term of imprisonment
[30] The Crown submits that I should also impose a minimum term of imprisonment. The Court has the power to impose a minimum term of imprisonment in any case where it is necessary to do that in order to reflect several factors.3 These are the need to denounce the offending, to hold the offender accountable and to deter both the offender and others of like mind of engaging in similar actions in the future. The Court may also take into account the need to protect the public.
[31] I find the first three factors are engaged in the present situation. Ordinarily, you would be eligible to apply for parole after serving just over three years of your
sentence. I consider that would be manifestly inadequate to reflect the need to hold you accountable, the need to deter you and others from engaging in similar conduct, and the need to denounce the type of conduct in which you were engaged.
[32] I note that in M v R the Judge imposed a minimum term of imprisonment of two-thirds. That is the maximum permitted under the legislation. I do not propose to go that far, but I am satisfied that a substantial minimum term of imprisonment is required. I therefore propose to impose a minimum term of imprisonment of five years and nine months.
Sentence
[33] On Count 21, the charge of intentionally ill-treating your children, you are sentenced to nine years four months imprisonment. You are directed to serve a minimum term of imprisonment on that charge of five years and nine months.
[34] On the four charges of injuring with intent to injure, you are sentenced to concurrent sentences of three years six months imprisonment. On the seven charges of assault with a weapon, you are sentenced to concurrent sentences of two and a half years imprisonment. On the charge of wounding with reckless disregard, you are sentenced to a concurrent sentence of two and a half years imprisonment. On the two charges of assault with intent to injure, you are sentenced to concurrent sentences of 18 months imprisonment. On the five charges of assault on a child, you are sentenced to concurrent sentences of 12 months imprisonment. On the single charge of assaulting a female, you are sentenced to a concurrent sentence of
12 months imprisonment.
Name suppression
[35] Counsel for the Crown has properly raised the issue of name suppression. Although Mr K’s former wife does not share his name, his children do. Mr K has been subject to an interim order suppressing his name until today’s date. I now make that order final.
[36] Stand down.
Lang J
Solicitors:
Crown Solicitor, Auckland
Counsel:
C Robertson
Count Charge Section Max. term Complainant Particulars
1 (r)
2 (r)
Assault on child 194(a) 2 years’
imprisonment
Assault on child 194(a) 2 years’
imprisonment
Child one (9 weeks)
Child two (9 weeks)
Pinching, slapping, lifting with one arm, rubbing her face against his stubble. Dropping her into cot. Suffered bruising and rash.
Pinching, slapping. Picking victim up by back of jumpsuit, making it difficult for him to breathe.
Wounding with reckless disregard
188(2) 7 years’
imprisonment
Child two Dropping victim into his cot, lifting him by one arm. Suffered bone fracture to right shoulder as a result.
4 (r)
Assault on child 194(a) 2 years’
imprisonment
Child three (5-7 years)
Choking victim, throwing victim to ground, punching victim in stomach.
5 (r)
Assault with weapon 202C 5 years’
imprisonment
Child three Attacking victim with extension cord and vacuum cleaner pipe.
6 (r)
Assault on child 194(a) 2 years’
imprisonment
Child four (5-7 years)
Punching victim in stomach.
7 (r)
Assault with weapon 202C 5 years’
imprisonment
Child four Striking victim with metal spoon to hands and legs
8 (r)
Assault with weapon 202C 5 years’
imprisonment
Child five (5-9 years)
Striking victim with metal spoon to hands, knuckles, knees, ankles, feet. As a result, victim suffered severe bruising and knuckles bled.
9 (r)
Assault with weapon 202C 5 years’
imprisonment
Child five Striking victim’s body, face, ears, arms and legs and choking with
extension cord. Suffered severe brooding.
10 (r)
Assault with intent to injure
3 years’
imprisonment
Child five Stomping on head, kicking and punching stomach.
11 Injuring with intent 189(2) 5 years’
imprisonment
Child five Strangling victim and stomping on his head. Caused severe haematoma to side of his face.
12 (r)
Assault with weapon 202C 5 years’
imprisonment
Child five Hitting victim with broomstick to body and legs.
Assault with intent to injure
Injuring with intent to injure
3 years’
imprisonment
189(2) 5 years’
imprisonment
Child five Slapping, punching and kicking victim’s head.
Child five Punching head, face, body of victim. Throwing against wall, pushing to ground. Beating with extension cord.
15 (r)
Male assaults female 194(b) 2 years’
imprisonment
LK (wife) Punching and kicking in the face, head, and body during victim’s
pregnancies. Verbal abuse.
Injuring with intent to injure
189(2) 5 years’
imprisonment
LK Punching victim’s head, face and upper body. Lost a tooth as a result
Assault with weapon 202C 5 years’
imprisonment
Assault with weapon 202C 5 years’
imprisonment
LK Threw cup of hot tea at victim. Beat her with a metal chair. Victim was pregnant.
LK Kicking, punching, hair pulling. Prolonged attack involving hammering
victim’s knees causing severe bruising. Victim was pregnant.
Injuring with intent to injure
189(2) 5 years’
imprisonment
LK Dispute over communications and babies. Punching to head and hand, resulting in broken finger. Victim had to lie to doctors about injuries.
Assault on child 194(a) 2 years’
imprisonment
Ill-treatment of child 195 10 years’
imprisonment
Child one Rough handling of victim.
All children General violence, targeting head, use of weapons, verbal abuse.
R = Representative Charge
Solicitors:
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