Solomon v Police HC Wanganui CRI-2010-483-063
[2010] NZHC 2421
•3 December 2010
IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY
CRI-2010-483-063
JOSHUA SOLOMON
v
THE NEW ZEALAND POLICE
Hearing: 3 December 2010
Counsel: S Burlace for Appellant
J Woodcock for Respondent
Judgment: 3 December 2010
JUDGMENT OF JOSEPH WILLIAMS J
In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 4:00pm on the 3rd December 2010.
Solicitors:
Crown Solicitors, Wanganui
Treadwell Gordon, PO Box 4084, Wanganui
SOLOMON V THE NEW ZEALAND POLICE HC WANG CRI-2010-483-063 3 December 2010
[1] Joshua Solomon was sentenced in the District Court at Whanganui on three counts of assaulting a child, and one count of ill-treatment/neglect of a child. He was sentenced to six months’ imprisonment. He now appeals arguing that the sentence is manifestly excessive and that the learned Judge failed to consider whether the community-based sentence was more appropriate.
[2] Mr Solomon and his partner Ms Kaka, are the parents of nine children aged between 1 and 15 years.
[3] On 14 May 2010 at 8.20pm the police attended an alleged family violence incident at the couple’s home where it was alleged that Mr Solomon was smoking cannabis and verbally abusing the children. Nothing was found at the address to substantiate the allegations and the police left.
[4] Following this Mr Solomon sent 11 year old Te Watene Horomona to his bedroom for time out. While walking him down the hallway Mr Solomon alleged that his son began to drag his feet, so he kicked him connecting with his hip. As a result Watene suffered redness and soreness to his hip although it seems to be accepted that the kick was not so severe as to propel Watene to the wall or floor of the hallway. This was the first assault.
[5] Following this incident the police must have been contacted again because they returned to the home, CYFS were notified, the children were removed and a joint police/CYFS investigation began.
[6] Five of the nine children were evidentially interviewed and further evidence of assault incidents was elicited.
[7] Among them was an assault by Mr Solomon on Ngawai Horomona aged 12. On 5 May 2010 she ran away from home. The appellant found and grabbed her at the Warehouse in Whanganui on 7 May 2010. He apparently grabbed her by the
wrist and marched her to the Police Station around half a kilometre away in order to advise police that she had been found.
[8] Mr Solomon’s means of restraining Ngawai led to bruising and redness on her wrist and lower arm. This was the second assault.
[9] When they returned home, Mr Solomon pushed her into a chair in the room (this was the third assault). It seems that both parents were remonstrating with Ngawai and Ms Kaka slapped her firmly in the face. It is accepted that at that point, Mr Solomon intervened to stop any further attack.
[10] On another date unspecified, Mr Solomon called Te Watene “a little girl” and told him “to take his punishment like a man”. This is the basis of the ill-treatment charge.
[11] Several further charges were laid against Patrina Kaka. Not all charges were before Judge Clapham on the day he sentenced Mr Solomon but five were, three of them assaults with a weapon and two counts of assaulting a child. These were more serious than the charges Mr Solomon faced.
The sentencing
[12] Judge Clapham dealt with both defendants in a single set of sentencing remarks. His Honour referred to the pre-sentence report and victim impact statements by two children (not Watene or Ngawai). He reflected on the difficulties a parent must face in coping with nine children, and implied at least that these parents had lost control in their home. He expressed caution about standing back and denouncing this conduct. Rather, one gets the impression he felt they needed more effective intervention. Having said that, he was very aware that there had been extensive interventions in the past and they seem not to have worked. He then admonished both for their behaviour against smaller, vulnerable children placed in a relationship of trust before imposing a nine months prison term on Ms Kaka, and six months on Mr Solomon.
[13] It is necessary also to refer to the pre-sentence report in this matter because it is likely to have had a significant influence on the Judge’s attitude, and because it contained more than a hint of exasperation at the numerous failed interventions in relation to this family. The report provided in part:
It appears that, over many years, numerous agencies have regularly made a colossal effort to encourage both Joshua Solomon and his partner to parent in a positive and effective manner. However, these attempts appear to have been futile, with the couple choosing not to implement the skills learned. Given this, and the current involvement of numerous agencies, a rehabilitative sentence is not considered necessary.
[14] There is reference to the fact that they had done so many parenting programmes that there was some doubt about whether they would be accepted back. Those running the ‘Jigsaw’ programme apparently said “the question has to be asked as to why they are not learning anything.” It was acknowledged by Jigsaw that the failure to take on board any of the skills learned could be related either to a low level of cognitive functioning or simply choice.
[15] ‘Family Works’ were also contacted. A representative of that agency reported that “mountains of time and effort” had gone into this couple for little or no benefit.
Legal argument
[16] The appellant argued that the learned Judge focused too much on the surrounding history of social support interventions, together with the more serious offending of Ms Kaka in the sentencing exercise. Counsel argued that there was insufficient focus on the very low level of offending for which Mr Solomon was appearing. Counsel argued that in fact the wrist grabbing, kicking and pushing into a chair were at the very lowest level to justify legal sanction and, but for a previous conviction for assault on Watene, these matters would not have justified legal intervention at all.
[17] Finally, counsel argued that a consideration of sentencing in other cases for offending of this nature suggested strongly that the penalty imposed was manifestly excessive.
[18] For the police, counsel argued that the penalty was not manifestly excessive in context. Counsel argued that the summary of facts indicated there was actual violence – a kick in particular being a serious assault; psychological abuse together with abuse of trust of vulnerable children.
[19] Counsel submitted that while the assaults and ill-treatment were at the lower end of the scale, it was appropriate for the Judge to take full account of the previous assault conviction against Watene, and the family’s history of domestic difficulties.
[20] Counsel pointed to the Court of Appeal decision in R v Te Amo in which Te Amo was sentenced to 18 months’ imprisonment on a charge of assaulting his four year old daughter by “propelling the child some distance across the room”. The child’s mother apparently moved to arrest her daughter’s fall and prevented injury.
[21] Counsel for the police in this case argued that if an 18 month sentence was upheld in that case, a six month sentence on these charges is well within range.
The cases
[22] Counsel for the appellant provided a useful analysis of nine cases involving charges of assault on a child. I reproduce below a matrix summary of the cases provided by counsel since it provides the best means by which facts and penalties can be compared among the nine cases.
| Name | Charge(s) | Outline of Assault | Appeal Outcome |
| Ngamotu v R CA 2010 | Assault on child x4 Cruelty to child x1 | Two children over 14 months: 2 x leather belt to back, bottom and legs (extensive bruising); several punches head; push to the floor, picked up by hair; hit across the face with swimming flippers | 14 months’ imprisonment confirmed |
| R v Brown CA 2009 | Assault child x1 | Hitting on leg and fell down stairs holding child causing minor injury | 2 months’ imprisonment confirmed |
| R v SLK CA 2006 | Assault child x 1 | Pubic bone bruising. Sentence: Cumulative on multiple charges against a 2-3 weeks old baby. K: 6 years 9 months imprisonment; T: 10 years imprisonment | 6 months’ imprisonment for the assault on child |
| R v AHF CA 2003 | Representative charge of 4 assaults on a child | Struck across face causing heavy nose bleed; several heavy blows across face and shoulders; struck several times with a thick leather belt leaving welts on buttocks; hit with bamboo stick across the buttocks and back | 6 months’ imprisonment |
| R v Middleton CA 2001 | Assault child x1 | Teacher dragged child by hair | Conviction and discharge upheld |
| R v Te Amo CA 2000 | Assault child x1 | Propelled across room, no injuries – probably due to arrest of fall | 18 months’ imprisonment |
| AMC v Police High Crt 2008 | Assault child x1 | Punch to nose in reaction to being struck in face by child | Section 106 discharged without conviction |
| Sharma v Police High Crt 2003 | Assault child x2, breach protection order | Slap to the face and two slaps to the legs | Fine $750 on each offence and court costs $130 x1 |
| Spence v Police High Crt 1994 | Assault child x1 | Several beatings using a leather dog lead, bruising and welts | 9 months’ imprisonment confirmed |
[23] Taken together the cases do follow a broad pattern. First, one-off assaults, even when they lead to some kind of injury, are generally treated leniently particularly where the assaults are out of character and/or committed in the heat of the moment. Second, assaults involving weapons or implements, relatively significant injury, severe and/or multiple blows, or cruelty are likely to be dealt with by a term of imprisonment – usually of six months or more.
[24] The offending in this case seems akin to Middleton (a teacher dragging a student by the hair), and Sharma (a slap to the face and two slaps to the leg). I accept that the assault in Te Amo involves no injuries because the daughter’s fall was arrested by her mother, and that it is possible that being propelled across the room
does not mean being thrown, but the offender in that case appears to have had a long and serious history of violence against his own family and had also been convicted of threatening to kill his wife. While Mr Solomon has a history of offending of a similar kind to the current charges, that history is more limited and less serious than Te Amo.
Offending and family history
[25] As I indicated, Mr Solomon was convicted in 2007 for another assault on Watene that occurred in 2004. The summary of facts in respect of that matter indicates that between January 2004 and August 2005 Watene was punched in the arm numerous times by Mr Solomon when he got angry. There is also reference to Watene saying he had been beaten up by his dad when found to have taken his lighter. Mr Solomon did not remember the incident but did not deny it. Mr Solomon was convicted and ordered to come up for sentence within six months if called upon.
[26] Family history appears to be one of regular dealings with CYFS. The couple had already lost custody of the children once some time ago, had done courses and won custody back, and now, as a result of the current charges, has lost them again. Advice from the Bar was that after this current round of offending, CYFS has no intention of returning the children to their parents.
[27] It was undoubtedly the case that Mr Solomon’s previous conviction for assault on Watene and the family’s problematic history, led Judge Clapham to conclude that a stern approach was the only approach left to him in sentencing.
[28] In my view Mr Solomon’s prior conviction for assault on a child, and the CYFS’ history of the family do not lead inexorably to a custodial sentence on a second conviction although I accept that it was a course open to the Judge if the facts on the second conviction warranted it. While I am not to be seen as condoning Mr Solomon’s choice to use punching as his primary means of discipline for the
20 months between January 2004 and August 2005, those assaults too are at the low end of the scale. That is no doubt why the punishment was relatively lenient in that
case. Whether in light of that history, a custodial sentence should have resulted from the current batch of charges must very much depend on the seriousness of the facts alleged and accepted in the present case. That is where I will now focus.
Seriousness
[29] The current three assault charges are for injury resulting from an overly tight grip on Ngawai while from marching her to the Police Station to indicate she had been found; a push into a chair on Ngawai’s return home; and a kick while being marched to time out which caused soreness and redness.
[30] While the marks gained on the journey to the Police Station meant Mr Solomons’s grip was too tight, a mitigating factor must be that Ngawai was being taken to the Police Station to indicate to police (who were presumably searching for her) that she was present and accounted for. The push into the chair is a technical assault but more importantly, when Ngawai, now in the chair, was slapped by her mother, it was Mr Solomon who told the mother to stop. The kick on the way to time out is clearly the most serious assault, and it caused minor harm. On the other hand however, it was not so hard as to cause Watene to fall or to propel him to the walls of the hallway. Significantly, the kick occurred while Watene was being frog- marched to time out – a decidedly non-violent form of discipline that had no doubt been learned in the numerous courses Mr Solomon and Ms Kaka undertook.
[31] The ill-treatment offending relates to calling Watene “a girl”. This is seen as psychological abuse no doubt. It is difficult to see how that can warrant the intervention of the law at all.
[32] In my view, these facts are not serious enough to leave a Judge with no choice but to incarcerate the offender – even in the knowledge that he had been guilty of an assault on the same victim five years earlier.
[33] The assaults in 2004-2005 were in my view a good deal worse than those in this case. Here, Ngawai is being taken to the authorities; Mr Solomon is intervening to prevent Ms Kaka continuing her assault; and the kick occurs while Watene is
being marched to time out. This indicates to me that he has learned from the courses he has done and that there is room for a small amount of optimism.
[34] It appears that these facts, specific to the offending, have been overborne in the mind of the sentencing Judge by the assaults in 2004-2005 and, to an even greater extent, by the fact that Mr Solomon was sentenced alongside Ms Kaka whose offending was obviously far more serious.
[35] On the authorities, even taking into account the previous conviction, this was offending that called for a community-based sentence. The learned Judge should in my view have considered such a sentence in the first instance only departing from that and elevating to a custodial sentence if some particular aspect justified it. As I said, in my view there was no such particular aspect. And I consider the sentence to be manifestly excessive.
Disposition
[36] In my view, three months’ home detention is the appropriate sentence in this case. I do not propose however to quash the current sentence and impose the substituted sentence of home detention unless and until it becomes clear that there is a suitable address at which the sentence can be served. I understand it takes three weeks to determine that. By that stage Mr Solomon will have been in prison for around a month. I would be minded to bail Mr Solomon in the meantime, but that too raises the question of a suitable address. As time ticks on, home detention gradually loses its efficacy.
[37] An alternative, if a suitable address for bail and home detention cannot be quickly found, is to reduce the period of imprisonment to three months.
[38] Rather than make any such choice in the absence of proper knowledge of the appellant’s preferences and any other considerations, I ask that counsel file memoranda urgently as to the approach preferred. It would help more if counsel could confer and provide me with a joint response if possible.
Joseph Williams J
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