R v Kabhir
[2013] NZHC 2178
•27 August 2013
PERMANENT ORDER PROHIBITING THE PUBLICATION OF THE NEW NAME OF THE VICTIM AND THE NAMES OF HER ADOPTIVE PARENTS.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-004-17564 [2013] NZHC 2178
THE QUEEN
v
POLASH KABHIR
Appearances: J D Cairney for the Crown
H B Leabourn for the Prisoner
Sentenced: 27 August 2013
SENTENCING NOTES OF PRIESTLEY J
Counsel:
J D Cairney, Crown Solicitors, Auckland
H B Leabourn, Barrister, Auckland
R v KABHIR [2013] NZHC 2178
Background
[1] Polash Kabhir I am sentencing you today on two charges. The first is causing grievous bodily harm laid under s 188(2) of the Crimes Act 1961 which carries a maximum penalty of seven years imprisonment. The second charge, laid under s 117(a) of the Crimes Act is that of attempting to dissuade a witness. That also carries a maximum of seven years imprisonment. You pleaded guilty to the first charge in June of this year. The second charge was laid in the District Court. You pleaded guilty to that on 22 July and sentencing was properly transferred to this Court.
[2] I need to say something briefly about your offending. The summary of facts was read out in Court today. At the time of your offending you were living in a de facto relationship with the mother of your victim. Your victim was aged approximately 19 weeks. She had been born prematurely. You effectively were acting as the father of your partner’s daughter. This serious offending took place on
10 October 2010 at the home occupied by the three of you at 10 o’clock at night. The child was crying. You punched her once in the face with a closed fist and then returned to bed. The child continued to cry. You got out of bed and punched her twice on the head with a closed fist. The crying continued. You again got out of bed and covered her mouth and nose with your hand for approximately one minute. You returned to bed but the child continued with her crying. You got out of bed, punched her once in the head with a closed fist. You then picked her up out of the cot, shook her backwards and forwards with some vigour and then threw her back into the cot.
[3] As a result of your actions the child was admitted to Starship Hospital for over a fortnight. Retinal scans showed bleeding in all layers of her right eye. Brain scans showed signs of bleeding on both sides. The child is now permanently blind in her right eye and there is the distinct possibility of residual brain damage leading to cognitive and behavioural difficulties.
[4] There has been subsequent medical evaluation of your victim. In a more specific way your offending caused severe brain injury. The child has been left with mild left hemiplegia, blindness in her right eye and also possible cortical visual
impairment. Assessments of her cognitive development indicate that this is somewhat below average. Her motor development is just below average. Her language is fortunately within average range. She needs periodic professional monitoring and support.
[5] There are, however, grounds for some optimism about her future, not the least of which is that the child has now been adopted into a caring and loving home. I have been assisted by a victim impact statement read out in court this morning from the child’s adoptive parents.
[6] I now say something about your personal circumstances. You are now 19. You were, as I have just said, just short of your 17th birthday at the time of the grievous bodily harm offending. You have had no previous convictions. You are of Cook Island and Bangladeshi descent. Your family is supportive and are in Court with you today.
[7] At the time your relationship with the victim’s mother started she was three months pregnant. The child was not yours. Clearly you were under some pressure at the time leading up to the offending. There were some financial difficulties which flowed from some members of the victim’s mother’s family moving into the house.
[8] You have sensibly accepted full responsibility for your offending and are remorseful. You have written me a helpful letter which I have read this morning, Mr Kabhir, and I accept what you have said in it to me. You accept that you acted impulsively, taking your frustration out on this defenceless child.
[9] You left school at the age of 16. You did attain an electrical engineering qualification. You were employed by your father in his packing business during the time you were awaiting trial and on bail. The presentence report, which I have read, has been prepared with some care. It realistically recommends imprisonment. It assesses you as being a low risk of re-offending and I agree with that. To your credit you have, since you were remanded, undertaken a number of helpful courses which will provide you with some foundation on which to build. These include a manhood programme course and various parenting courses, although the reality will be it will
be some time I suspect before you will be in a parenting situation again. As I have just said you have no previous convictions.
[10] As a sentencing Judge I have to be mindful of relevant purposes and principles under the Sentencing Act 2002. There must be accountability for the harm done to the victim. There must be denunciation and deterrence in respect of both your offences. I also though have to give weight to your rehabilitation. I need to impose a sentence which is consistent with other sentences of this Court and the periodic observations of the Court of Appeal.
Aggravating features
[11] I turn now to aggravating features. The most important aggravating features in your case are the requirements set out in s 9A(2) of the Sentencing Act. Additionally you were attacking this child’s head. She was totally vulnerable and defenceless. You were in a parenting role and she was entitled, as indeed is society, to trust you in that role. Your violent assaults on her were an inexcusable breach of that trust. I also need to reflect the physical harm which you have inflicted on this child which I have already itemised.
[12] In terms of the second count, of dissuading a witness, there were multiple threats. A significant amount of money was offered. This sort of offending strikes at the core of the administration of justice and clearly had an effect, because not only did the witness whom you were trying to dissuade give untruthful evidence but the impact on the trial was that the jury disagreed.
Mitigating factors
[13] There are a number of mitigating factors for which you are entitled to credit. These include, in different ways, your guilty pleas, your youth, your previous good character, your remorse, and the low risk of re-offending which has been identified by the probation officer.
Submissions
[14] I deal but briefly with submissions from counsel. I compliment both counsel on the helpful and realistic approach they have adopted this morning. The Crown, in respect of the s 188(2) charge, urges on me a start point of between three and three and a half years imprisonment. It accepts that the mitigating credits, to which I have alluded, are available to you.
[15] In respect of the s 117(a) charge the Crown submits that a start point of two years imprisonment should be adopted by me. In a dialogue with Crown counsel I have suggested that the Court of Appeal authorities would well justify the somewhat higher start point of three years. Mr Cairney realistically accepts that my assessment has validity and that a higher start point is available. Your own counsel looks for a much lower start point in respect of both counts of two years nine months to three years in respect of the grievous bodily harm charge and between 12 and 18 months in respect of the s 117(a) charge.
[16] Counsel’s submissions, as to the methodology of my sentencing, are consistent with the methodology I shall in fact adopt and which I foreshadowed to counsel when I came into Court this morning.
Sentence
[17] Crafting a sentence for you, Mr Kabhir, obliges me to take into account a number of factors. At the outset, as your counsel Mr Leabourn responsibly accepts, I say a sentence of home detention is impossible. Inevitably a term of imprisonment, well over the two year home detention threshold, must be imposed.
[18] On the charge relating to the child, causing grievous bodily harm with reckless disregard for safety, I must consider the child’s extreme vulnerability. Parliament, by enacting s 9A of the Sentencing Act, has deliberately stipulated a subset of aggravating features where young victims are involved.
[19] I must also consider your own age at the time of the offending. You were just short of your 17th birthday. As the Court of Appeal has correctly observed in its
recent judgment of Churchward v R,1 there are age-related neurological differences between young people and adults which undoubtedly lead to impulsive and ill- judged behaviour, and your behaviour was just that.
[20] I also need to take into account the permanent damage which you inflicted on your victim leading to her loss of sight in one eye and the probability (but as yet unclear) of long-term neurological damage. In some developmental areas your victim is falling short of the normal levels.
[21] The next factor for me to weigh in sentencing you is the charge to which you have pleaded guilty, of attempting to dissuade a witness. The witness to whom you offered both threats and inducements was your victim’s mother. Your offending certainly affected the manner in which she gave evidence at your trial last year resulting in the witness being declared hostile, your being acquitted on one count, and a jury disagreement on the remaining two. Possibly you received a degree of encouragement from your family in your conduct but your counsel disputes that and I ignore this thought. Certainly you were not in a position personally to pay or offer to pay the $65,000 inducement. Offending of this type is fortunately foreign to New Zealand’s culture and rarely occurs in our legal system. It must be met with stern
sentences to deter others and to protect the integrity of the criminal justice system.2
[22] Because this offending took place well after your offending against the young child, it is appropriate to impose a cumulative sentence. The end sentence of imprisonment must reflect the totality of your offending but not crush you.
[23] You are entitled, Mr Kabhir, to a credit for your guilty pleas. In respect of the offence relating to interference with the witness (s 117(a) of the Crimes Act) I consider you are entitled to the full permissible discount. But the discount in respect of your guilty plea on the grievous bodily harm charge cannot be as large, given it came close to the start of your second trial. Both counsel accept that. Mr Cairney
urges a 10 per cent discount, your counsel seeks 15 per cent.
1 Churchward v R (2011) 25 CRNZ 446 (CA) at [77].
2 R v Hillman CA 14/92, 14 May 1992.
[24] All that said, I need not dwell at length on the sentence. On your offending relating to the young child, counsel have referred me to R v Gatland,3 R v Filo,4 and a decision of Duffy J, R v Te Waaka.5 In reflecting on those cases and fixing a start point it is pertinent to note that s 9A had not been enacted at the time of those sentences. Assaults, shaking, and punches inflicted on helpless babies only a few weeks or months old is dreadful behaviour. It is often a by-product of immature and
unsupported mothers re-partnering. There is some literature which suggests males are more prone to attack babies of which they are not the biological father. The defencelessness and size of a baby can result in massive, sometimes fatal injuries. This is the case here. The child has been blinded and suffered brain damage. Your assaults on the child were sustained and repeated. This was not a single angry shaking or slap. Each time you returned to bed and then got out of it again. There was a closed fist punch, followed by two closed fist punches to the head, followed by covering the child’s mouth and nose, followed by a further punch, shaking, and throwing the child back into the cot.
[25] As I have said, I take into account your immaturity and your age. Doubtless, like many parents, you were desperate to go to sleep. The injuries were similar to some extent to those inflicted on the six month old child in Filo6 and arguably not
quite as serious as those inflicted on a four week child in Te Waaka.7 As did Duffy J
in Te Waaka I consider your offending to a large degree flowed from your frustrations as a parent, your youth, and your lack of experience with children. But giving the weight which I am obliged to give (and justifiably so) to s 9A I consider in all the circumstances a start point of three and a half years imprisonment is justified on the s 188(2) charge.
[26] To reflect the fact that you have had no previous convictions, your youth, and the good prospects of your being rehabilitated, I intend to discount that start point by just over 30 per cent or 13 months which would bring me to two years and five
months imprisonment. That discount also reflects your remorse and the probation
3 R v Gatland CA 330/98, 26 November, 1998.
4 R v Filo [2007] NZCA 20.
5 R v Te Waaka HC Auckland CRI-2006-092-15178, 7 April 2008.
6 Above n 3.
7 Above n 4.
officer’s assessment that you present a low risk of re-offending. A further discount in terms of the R v Hessell8 methodology of a fraction over 10 per cent is justified to reflect your guilty plea some two months before the retrial. You are not entitled to more. You put the Crown to the proof on your first trial. This was not an early guilty plea. Thus the appropriate end sentence would be one of two years and two months imprisonment.
[27] Turning to the second offence of dissuading a witness, your offending is serious. The 1992 Court of Appeal authority of R v Hillman9 has been approved subsequently by the Court of Appeal in R v Clutterbuck.10 Threats deployed to dissuade witnesses from giving evidence in serious cases usually attract a start point of three years imprisonment. This case was serious, much more serious than Mr Hillman’s, and well up to the benchmark described as “serious” by the Court of
Appeal. Your offending, in a malign way, influenced the outcome of last year’s trial. The witness was influenced by your threats. So was her evidence. I consider that a start point of three years imprisonment is amply justified. You cannot at this stage be given credit for your previous good record since, at the time of the offending, you were both on bail and on trial. You were also two years older. However, I am prepared to allow a 20 per cent discount of say seven months which will reduce the three years to two years and five months imprisonment, and a further 25 per cent discount for your early guilty plea (you were charged in early May and pleaded guilty on 22 July), which would equate to an end sentence of approximately (rounding in your favour) one year and nine months imprisonment.
[28] That sentence would have to be added cumulatively to the sentence of two years and two months imprisonment which I have already imposed. Were I to do that I would impose on you a term of imprisonment of three years and 11 months. Looking at the totality of that sentence for your two offences, your age, your previous good record, and your total culpability, I regard that as too high. I consider that it should be reduced to a total finite sentence of three years and three months
imprisonment with a corresponding adjustment to the cumulative term.
8 R v Hessell [2010] NZSC 135.
9 Above n 2.
10 R v Clutterbuck CA 372/99.
[29] Stand up please.
[30] On the charge of causing grievous bodily harm under s 188(2) you are sentenced to two years and two months imprisonment. On the charge of attempting to dissuade a witness under s 117(a) you are sentenced to one year and one months imprisonment. That term of one year, one month is cumulative on the term of two years and two months so the total amount of time for which you are imprisoned Mr Kabhir is three years and three months imprisonment. Were it not for your age and what are seen as the excellent prospects of your rehabilitation, the sentence I have imposed on you would have been much higher.
[31] I also recommend to the prison authorities, that consistent with your age and prospects of rehabilitation, you be offered the opportunity to participate in appropriate rehabilitative courses, particularly courses relating to life skills and anger management.
[32] Thank you. Take him down.
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Priestley J