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.  A baby’s ribs are much more elastic than those of an adult and do not have the same characteristics as adult bones.  It is not until fractures begin to heal that they can be seen on x-rays.   For that reason it was somewhat difficult for the doctors and the Crown to ascertain exactly when it is likely that the injury was inflicted.  For that reason the Crown alleged that the injury was inflicted at some stage between 12

January and 8 February 2013.  The evidence at trial, however, is that the most likely date of injury was around the same date as the injury to the throat.

[7]      I therefore proceed on the basis that it is likely that you squeezed your baby with such force that you fractured two of her ribs on or about the same date that you inserted an object into her throat and thereby caused the laceration.   I consider it most likely that, for whatever reason and the reason will only ever be known by you, you jammed a finger down her throat with sufficient force to cause the laceration to the back of your daughter’s throat.

Sentencing Act 2002

[8]      In any case involving injury of this type to a very young child, issues of deterrence, denunciation and the need to hold the offender accountable are obviously to the forefront. The damage done to the victim is also of considerable significance.

[9]      I have had the benefit today of reading a very measured and helpful victim impact statement prepared by the baby’s maternal grandmother who now has care of the child.  She has described to the Court the trauma that this incident has caused for the wider family as a whole.  The baby is indeed very fortunate that she has a caring person such as her maternal grandmother who now looks after the baby on a full time basis.   I am sure that your child will continue to thrive in her grandmother’s care.  Like the child’s grandmother, however, I am left at a loss as to how any father could possibly treat his very young daughter in this way.

Starting point

[10]     Counsel for the Crown has filed helpful submissions outlining the authorities that apply for sentencings in this area.  They are governed by a decision of the Court of Appeal called Nuku v R,1  which applies principles enunciated by the Court of Appeal in another case called R v Taueki.2   In short, the Court is required to look at the aggravating factors relating to the offending in order to  establish where the

starting point for this sentence should lie.  The obvious aggravating factors here are the fact that the injury was inflicted by means of considerable force to a vulnerable part of the child’s body, namely the back of the throat.   Secondly, the victim was completely  vulnerable  because,  as  a  27  day  old  baby,  she  was  completely defenceless.  Thirdly, you abused your position as her father and caregiver by doing what you did.

Starting point

[11]     All children, and babies in particular, rely wholly on their parents for care, nurturing and support.  You abused that trust and responsibility by instead inflicting these injuries on your daughter.  Counsel for the Crown submits that a starting point of around four years imprisonment would be appropriate in relation to the lead charge.  I consider, having regard to the maximum available, that a starting point of four and a half years imprisonment is required.  Any lesser starting point would not, in my view, adequately reflect the seriousness of this offending.

[12]     The second charge would ordinarily easily attract a starting point of two and a half years imprisonment, bearing in mind the fact that the maximum sentence is five years imprisonment.  Squeezing a baby’s ribs until they break is a very serious matter indeed.  Because this is separate offending, I propose to impose a cumulative sentence in respect of it.  Although a sentence of two and a half years imprisonment

would ordinarily be appropriate, I am constrained by totality principles.3   This means

that I need to impose a sentence that reflects the overall gravity of your offending and does not produce a disproportionate result.  Applying those principles, I propose

1      Nuku v R [2013] 2 NZLR 39;

2      R v Taueki [2005] 3 NZLR 372.

3      Sentencing Act 2002, s 85.

to apply a cumulative sentence of one and a half years imprisonment on the lesser charge.

Aggravating factors

[13]     The Crown points to the fact that you have previous convictions for violent offending although, as your counsel points out, none of these relate to offending against  young  children.    Of  particular  note  in  this  context  is  the  fact  that  you received a notation in the Youth Court in 2003 for wounding with intent to cause grievous bodily harm.   You have convictions for common assault and also a conviction for aggravated robbery in 2009.   The notation in your criminal record states that this involved the use of a weapon, and you received a sentence of two years six months imprisonment in respect of that charge.

[14]     Those convictions are an aggravating factor because they make your current offending more serious.   It is made more serious by the fact that you have not learned from previous sentences imposed on you for similar offending.  I propose to apply an uplift of six months to reflect that factor.

Sentence

[15]     On the charge of wounding with reckless disregard, you are sentenced to four years six months imprisonment.   On the lesser charge, you are sentenced to a cumulative sentence of one year six months imprisonment.

Three strikes warning

[16]     Mr Waitohi, when the jury delivered their verdicts and I entered convictions, counsel were somewhat unsure, as was I, as to whether or not your offending triggered  the  so-called  “three  strikes”  legislation.    Counsel  have  researched  the matter further, and confirm that you are subject to that legislation.   I am therefore now required to give you what is called a three strikes warning.  A copy of this will also be given to you in written form before you leave the Court precincts.

[17]     The warning I am required to give you is as follows.  If you are convicted of any serious violent offence, except murder committed after you receive this warning,

you will receive a final warning.   In addition, if the Judge imposes a sentence of imprisonment for that offence other than life imprisonment for manslaughter or preventive  detention,  then  you  will  serve  that  sentence  without  parole  or  early release.  If you are convicted of a murder committed after you receive this warning, you will be sentenced to imprisonment for life.   You must serve the life sentence without parole unless it would be manifestly unjust to do so.  If you receive a life sentence  without  parole,  you  will  not  be  released  from  prison.    If  serving  the sentence without parole would be manifestly unjust, the Judge must specify the minimum term of imprisonment you will serve.

[18]     Stand down.

Addendum

[19]     Mr Waitohi, I have had you and counsel to return to Court because when my sentencing remarks were transcribed, I discovered that I had made an error.  During the body of my sentencing remarks I indicated that the starting point on the lead charge of wounding with reckless disregard was to be four and a half years.  I then added  a six  month uplift for previous  convictions.   When  I finally pronounced sentence, however, I referred to four and a half years rather than five years.  That was obviously an error, and the reason I have brought you back is to advise you that the sentence on the lead charge is one of five years imprisonment with a cumulative

sentence of one year six months imprisonment on the other charge.

Lang J

Solicitors:

Crown Solicitor, Auckland
Counsel:

K A Stoikoff