R v Waitohi - [2014] NZHC 1018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-044-1109 [2014] NZHC 1018

THE QUEEN

v

REBEL WAITOHI

Hearing: 15 May 2014

Appearances:

T M Cooper for Crown
K A Stoikoff for Prisoner

Sentence:

15 May 2014

SENTENCING REMARKS OF LANG J

R v WAITOHI [2014] NZHC 1018 [15 May 2014]

[1] Mr Waitohi, you appear today for sentence having been found guilty by a jury on one charge of wounding with reckless disregard and one charge of injuring with reckless disregard. The maximum penalty for the charge of wounding with disregard is seven years imprisonment. The maximum penalty on the other charge is five years imprisonment.

Background

[2] As the trial Judge I have, as counsel acknowledge, a full awareness of the factual background giving rise to the charges. The charges relate to a baby aged just
27 days at the time that the incident occurred giving rise to the charges. At trial, your partner gave evidence that you are the father of the child.

[3] The incident giving rise to the most serious charge, that of wounding with reckless disregard, occurred early in the morning of 8 February 2013. On that date your daughter woke up and began crying. Your partner got up, picked up the child and went to the kitchen to get a bottle. She then brought the baby back to the bedroom, where you were lying in bed having just woken up. She then gave the bottle and the baby to you so that you could feed the baby.

[4] A short time later, your partner came back into the room to hear the baby making some noises. She observed at this time blood coming out of the baby’s mouth. It was obvious that something serious had happened and, fortunately, the ambulance service was called immediately. The child was rushed to Waitakere Hospital, where attempts were made to ascertain the cause of the bleeding. Ultimately this was found to be a laceration to the back of the baby’s throat. This was a serious injury to such a young child and, indeed, the doctors said it was life threatening. It was bleeding profusely and this led to the risk that effectively the baby would drown in her own blood.

[5] The baby was transferred a short time later to Starship Hospital, where she was placed under the care of very senior medical staff. They were able to repair the damage to the throat, although it had long-lasting effects and the baby was required to feed through a tube for some very considerable time thereafter. Thankfully, counsel for the Crown advises me today that the baby has made a full recovery.

[6] The second charge arises out of the fact that, whilst the baby was at Starship Hospital, x-rays were taken on several occasions. These revealed that the baby had healing fractures to two ribs. These were not initially apparent when the baby was admitted to hospital. The evidence at trial was that this was not unusual.…

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 Waitohi

Details

AGLC: R v Waitohi [2014] NZHC 1018
Case: [2014] NZHC 1018
Decision Date: 15 May 2014

CaseChat Overview and Summary

Rebel Waitohi was convicted of two charges: wounding with reckless disregard and injuring with reckless disregard. The charges stem from injuries inflicted on his 27-day-old daughter, including a severe laceration to the back of her throat and healing fractures to two of her ribs. The court found that Waitohi had caused these injuries by forcefully squeezing the baby and inserting an object into her throat. The court was tasked with determining an appropriate sentence, considering the severity of the injuries and the defendant's previous convictions for violent offenses.

The legal issues the court had to address included establishing the starting point for sentencing based on the gravity of the offenses, applying the appropriate uplift for previous convictions, and ensuring that the sentence reflected the principles of deterrence, denunciation, and accountability. The court also had to consider the victim impact statement and the principles of totality, which require that the overall sentence reflect the cumulative seriousness of the offenses without being disproportionate.

The court reasoned that the starting point for the charge of wounding with reckless disregard should be four and a half years imprisonment, and for the charge of injuring with reckless disregard, two and a half years imprisonment. However, due to the principles of totality, the sentence for the second charge was reduced to one and a half years, cumulative with the sentence for the first charge. The court added a six-month uplift to the sentence for the first charge due to Waitohi's previous convictions, resulting in a final sentence of five years imprisonment for the charge of wounding with reckless disregard and one and a half years cumulatively for the charge of injuring with reckless disregard. The court also issued a three strikes warning as Waitohi's offenses triggered the three strikes legislation.

The final orders of the court were that Rebel Waitohi was sentenced to five years imprisonment for the charge of wounding with reckless disregard and one and a half years cumulatively for the charge of injuring with reckless disregard, with a three strikes warning issued. The total effective sentence was six years imprisonment, subject to the three strikes legislation.

Orders