R v Kabhir - [2013] NZHC 2178

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…

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 Kabhir

Details

AGLC: R v Kabhir [2013] NZHC 2178
Case: [2013] NZHC 2178
Decision Date: 27 August 2013

CaseChat Overview and Summary

The case of R v Kabhir, heard in the High Court of New Zealand, Auckland Registry, involved the sentencing of Polash Kabhir on two charges. The first charge was causing grievous bodily harm under section 188(2) of the Crimes Act 1961, which carries a maximum penalty of seven years imprisonment. The second charge was attempting to dissuade a witness under section 117(a) of the Crimes Act, also carrying a maximum penalty of seven years imprisonment. Kabhir pleaded guilty to both charges. The court had to decide on the appropriate sentence for Kabhir, considering both the aggravating and mitigating factors of his case.

Kabhir's offending involved serious violence against a 19-week-old infant, causing severe brain injury, blindness in one eye, and possible cortical visual impairment. The court found that Kabhir, despite being in a parenting role, had breached the trust placed in him by attacking the child's head. The court also noted that Kabhir had attempted to dissuade a witness by offering threats and money, which impacted the trial's outcome. The court had to balance the principles of accountability, denunciation, deterrence, and rehabilitation in sentencing Kabhir.

The court determined that a term of imprisonment was necessary due to the severity of the offences. For the grievous bodily harm charge, the court imposed a sentence of two years and two months imprisonment, reduced from a start point of three and a half years by considering Kabhir's age, remorse, and low risk of re-offending. For the witness dissuading charge, the court imposed a sentence of one year and one month imprisonment, reduced from a start point of three years due to Kabhir's early guilty plea and low risk of re-offending. The total sentence was three years and three months imprisonment, with a recommendation for Kabhir to participate in rehabilitative courses.

The final orders of the court were that Polash Kabhir was sentenced to two years and two months imprisonment for causing grievous bodily harm and one year and one month imprisonment for attempting to dissuade a witness, with the sentences to run cumulatively, resulting in a total of three years and three months imprisonment. The court also recommended that Kabhir be offered opportunities to participate in rehabilitative courses, particularly those relating to life skills and anger management.

Orders