Strydom v R

[2018] NZHC 358

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2018-425-000001

[2018] NZHC 358

BETWEEN

JONATHON STRYDOM

Appellant

AND

THE QUEEN

Respondent

Hearing:	7 March 2018
Appearances:	RGR Eagles for Appellant M J Thomas for Respondent
Judgment:	8 March 2018

JUDGMENT OF GENDALL J

[1]    The appellant pleaded guilty to a charge of causing grievous bodily harm to his six-week-old son with intent to cause grievous bodily harm pursuant to s 188(1) of the Crimes Act 1961. On 8 December 2017, Judge Roberts in the District Court at Invercargill  sentenced  him to  four  years  and  six months’ imprisonment.1  The maximum penalty for this charge is 14 years’ imprisonment. He now appeals that sentencing decision.

Facts

[2]    The appellant is aged 33 and is the father of the victim who was six weeks old at the time of the incident in question. At that time the appellant was sleeping in the master bedroom of the family’s home and his son was bedded down in his bassinet there too. The victim’s mother, the appellant’s partner of some four years, was

1      R v Strydom [2017] NZDC 28117.

STRYDOM v R [2018] NZHC 358 [8 March 2018]

sleeping in the spare room to get a good night’s rest. During the night, the victim woke but went back to sleep soon afterwards. Later, in the early hours of the morning the victim woke again. The appellant got up, fed him milk from a bottle and changed his nappy. The victim had difficulty settling. The appellant placed his son alongside him in the master bed.

[3]    In the morning, the appellant told his partner, the mother of the victim, that the victim may have a bump on his head because he might have knocked him when he was turning in his sleep. The mother noticed bruising to the victim’s forehead as well as a bump and some swelling. She also saw bruising around the right eye. Later in the day she noticed the victim’s right leg was swollen from his knee to his ankle.

[4]    Medical assistance was not sought until the morning of the following day. The doctor referred the victim to the hospital. X-rays and CT scans revealed that he had sustained non-accidental injuries in the form of a fractured skull and a fractured right leg. He also had a black right eye and bruising to his right upper arm and a finger. The police and CYF were alerted.

[5]    At an initial interview with the police, the appellant told them that the victim must have received the injuries as a result of him accidentally lying on him in bed during the night in question when he put him into the master bed. He said he woke up in the early hours of the morning and he was lying almost on top of the victim.

[6]    The hospital’s paediatric specialist had said to Police the injuries were non- accidental and it would have required considerable blunt force to inflict them. The appellant was then confronted and it was explained to him that the victim could not have sustained the injuries in that way. The appellant then broke down and admitted to the Police that he had intentionally inflicted those injuries. He said he lost his temper, raised his left arm above his head and swung it down with considerable force to the victim’s forehead, striking him in the temple area above the child’s left eye with his elbow. Later, the appellant acknowledged he had also delivered a swift kick to the victim, striking him on the body, including his right leg. He said he was tired and stressed at the time and lost his temper because the victim would not settle and go to sleep.

District Court decision

[7]    At sentencing, Judge Roberts considered counsel’s submissions that the appellant was under significant pressure at the time, that he had psychological limitations and was remorseful. The Judge noted that the psychological report before him indicated that the appellant had a long-term issue with depression but had never sought professional help for it. The report writer considered that the appellant had a lack of insight but this did not reach the level of insanity.

[8]Judge Roberts found there were a number of truly aggravating factors:

(a)Serious injury – fractures to his skull and to his right leg were serious injuries for a new born baby, only six-weeks old at the time, despite the fact the victim had recovered.

(b)An attack to the head – while long-term injury was avoided in this case, such an attack gave an elevated risk of such an injury.

(c)The victim’s vulnerability – this factor, he said, could not be more graphic and he noted that the senseless bashing of an infant was “unforgiveable”.

(d)Breach of trust – as the victim’s father, the appellant had a duty to care and provide for him. The fact that the appellant failed, first, to disclose to his partner what had happened and, secondly, to seek medical help afterwards having known (but initially denied) exactly what he had done also contributed to this.

[9]    He considered these aggravating factors were made out to a high degree and noted the provisions of s 9A Sentencing Act 2002 were relevant given the fact that these incidents involved serious violence directed at a defenceless child. The Judge accepted that premeditation was not made out.

[10]   Judge Roberts went on to consider the cases of R v Brown, R v Wilson and R v Papanui.2 In light of these, he took a starting point of six years as, while a one-off assault, the attack involved two separate and distinct acts of violence. The Judge then gave the maximum 25 per cent discount for the appellant’s guilty plea. He determined, upon consideration of the appellant’s submissions, that no reduction was warranted for the appellant’s personal circumstances or other matters. The end sentence imposed was four years and six months’ imprisonment.

Principles on appeal

[11]   Appeals against sentence are permitted as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.3 It is only appropriate for this court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4

Submissions

Appellant’s submissions

[12]The appellant submits that the sentence here was manifestly excessive because:

(a)The starting point of six years was too high;

(b)No separate allowance was given for remorse or the appellant’s willingness to attend restorative justice; and

(c)The Judge should have given an allowance or discount to recognise other mitigating factors, particularly the appellant’s mental instability

2      R v Brown [2009] NZCA 288, R v Wilson [2004] 3 NZLR 606; and R v Papanui HC Palmerston North CRI-2006-004-7944, 5 October 2007.

3      Criminal Procedure Act 2011, ss 250(2) and 250(3).

4      Ripia v R [2011] NZCA 101 at [15].

and history of depression, the fact he was a young parent, exhausted and anxious from work and that previously he was an excellent father.

[13]   Mr Eagles for the appellant contends, too, that the Judge overstated some of the aggravating factors present, such as the seriousness of the injury and the attack to the head. He argues that sentencing in this area is complicated by the prosecutor’s discretion over whether to charge under s 188(1) or (2). He suggests it is better to compare the facts themselves rather than the provisions. In that light, Mr Eagles discusses several cases which he submits are more serious than the present, and he suggests they indicate that a reduced starting point closer to five years was appropriate here.

[14]   The appellant’s position, too, is that he should have been given a discount for his personal situation. The Judge had before him a psychologist’s report which made it clear that at the time the appellant was struggling to cope with work pressures, was suffering from fatigue and stress, and had a history of depression. It was emphasised that the appellant had no history of ill feeling towards the baby. In addition, it seemed to be accepted that he was a hands-on parent who was doing his best to provide for his family, which included his partner of some four years and an older child she had by another father who the appellant had also taken responsibility for. Counsel submits that the appellant should have received a discount for his remorse, his willingness to attend restorative justice and his previous good character and background of depression.

[15]   Mr Eagles says that, while it cannot be shown that the appellant’s depression was causative of his actions, the Courts have held that:5

[A] mental disorder falling short of exculpating insanity may be capable of mitigating a sentence either because: if causative of the offending, it moderates the culpability; it renders less appropriate or more subjectively punitive a sentence of imprisonment; or because of a combination of those reasons.

5      E v R [2011] NZCA 13 at [68].

[16]   He suggests, too, that such an approach is demonstrated in many cases involving a defendant with mental health issues. He submits the Judge should have taken this into account here.

Respondent’s submissions

[17]   The respondent contends that the sentence imposed was in line with authority and not manifestly excessive. This case involves a charge under s 188(1), which carries an element of  an  intention  to  cause  grievous  bodily  harm.  Before  me, Ms Thomas suggested that cases which carry a lower mens rea, and thus have a lower level of culpability, do not undermine the validity of the sentence imposed here. The six-year starting point, she contends, is in the cross over zone between the first and second bands of R v Taueki.6 Ms Thomas maintains, too, that the four factors identified by the Judge were all present here to a moderate or high degree. Therefore, the starting point was well within range.

[18]   Ms Thomas contends also that the evidence before the Judge meant it was open to him to find that the respondent showed little or no remorse, that he did not have previous good character due to his prior convictions, and that his mental health issues did not warrant a discount. She argues that the cases discussed by the appellant do not support a discount here as they dealt with far more serious mental health conditions. The appellant here received the full 25 per cent discount, which Ms Thomas suggests is surprising, given that his guilty plea was delayed until seven and a half months after he was charged. This, to some extent, removes any potential unfairness arising from the lack of additional discounts.

[19]   Counsel submits that the appellant should not be given a discount for his difficulty to cope with the stresses of his life and fatherhood. Such a discount would go against the need to deter this type of offending and the responsibility of parents. Furthermore, the appellant rationalised and minimised the severity of his offending to the psychologist. This minimisation goes against a discount being given for difficulty to cope as the appellant made no acknowledgement that that was the reason.

6      R v Taueki [2005] 3 NZLR 372 at [34].

Analysis

Was the starting point too high?

[20]   The starting point of six years’ imprisonment was available to the Judge. It is supported by other cases of this nature.

[21]   Counsel for the appellant compares the present case to R v Wilson, submitting that the facts there were worse yet a six-year sentence was imposed by the Court of Appeal.7 Mr Eagles argues that this supports a lower starting point here. His argument, however, overlooks the fact that in Wilson,8 six years was the end sentence, not the starting point. The Court of Appeal considered that the appropriate starting point was about eight years, although it was constrained to apply seven years because that is what the appealing prosecutor submitted. Thus, while the present circumstances were less serious as they involved a single incident (albeit with two separate and distinct acts of violence) rather than a series of abuse, the lower starting point of six years takes this into account. In addition, the fact that the appellant here tried to hide the injuries to his son (with the attendant risk associated with his contrived delay in seeking medical help for the serious injuries suffered) increases his culpability, whereas the respondent in Wilson made sure that the child was taken to the doctor.

[22]   Another decision of the Court of Appeal, R v Hall, also dealt with a series of abuse by a father on an infant.9 The facts of that case are considerably worse than the present. The abuse there occurred on multiple occasions and the injuries arguably were more serious with long-term implications. The sentencing Judge took a starting point of three years and three months for the total offending. The Crown appealed this decision, submitting that the starting point should have been four years. The Court of Appeal agreed that the Judge’s starting point was manifestly insufficient. Despite considering that a far higher starting point was necessary, referencing R v Wilson, the Court was constrained to take the four-year starting point proposed by the Crown. Therefore, it is not appropriate to conceive of four years as an appropriate starting point for that level of offending.

7      R v Wilson, above n 2.

8      R v Wilson, above n 2.

9      R v Hall [2012] NZCA 518.

[23]   And, in R v Moran, the defendant lashed out at his child on one occasion, causing permanent brain damage.10 The Judge adopted a five-year starting point for the charge there of causing grievous bodily harm with reckless disregard. This has a seven-year maximum penalty, as opposed to the 14 year penalty for the present case of wounding with intent to cause grievous bodily harm.

[24]   Counsel for the appellant submits that the facts of that offence and the present should be considered and the difference in possible maximum penalties for the two offences ignored. I disagree. The level of intent involved must affect the culpability of an offender, which then impacts the appropriate starting point. The appellant in the present case pleaded guilty to the charge of causing grievous bodily harm with intent to do so. The legislature has clearly indicated that this mental element increases the seriousness of the offending. Therefore, a similar attack and injuries would give rise to different sentences under the two charges. Because of this increased culpability, it is appropriate, in my view, that a higher starting point is taken for the appellant here than was adopted in Moran, despite the fact that the attack there caused more serious lasting injuries.

[25] I am satisfied, too, that Judge Roberts appropriately identified the four aggravating factors of this offending I have outlined at [8] above and that these were present to either a moderate or a high degree. This puts it, at the least, on the border of bands 1 and 2 of R v Taueki.11 Furthermore, the Court is required by s 9A of the Sentencing Act 2002 to take into account various aggravating factors when there has been violence against a child. This includes the defencelessness of the victim, any deliberate concealment of the offending and the magnitude of the breach of any relationship of trust.

[26]   When all these various aggravating factors are considered as well, I find that a starting point of six years’ imprisonment was available to the Judge here.

10     R v Moran [2014] NZHC 966.

11     R v Taueki, above n 6, at [34].

Should further discounts have been given?

[27]   On this aspect, first, I need to make clear that, as I see it, the full 25 per cent guilty plea discount allowed here was generous. A 20 per cent discount might have been more appropriate, given that the appellant’s guilty plea was entered seven and a half months after charges were laid.

[28]   I am satisfied, too, that in the circumstances of this case, no discount is warranted for previous good character. Such an award is typically made for someone with no previous convictions. The appellant’s records show that the majority of his conviction history relates to driving matters, including two convictions for drink driving. He has been subject to community based sanctions in the past, with the only breach recorded (community work) back in November 2011. Thus, although it might be said the appellant has no relevant previous convictions, this merely precludes the need for an uplift. It does not warrant a discount.

[29]   The Judge was also entitled to find that there should be no discount for remorse here. While the appellant was willing to attend a restorative justice conference, there was little other evidence of remorse. The psychologist who examined the appellant noted particularly that he was able to rationalise and minimise the severity of his offending and seemed to lack any empathy or remorse. It might also be properly said that there was no true remorse here because initially the appellant tried to cover up or minimise what had occurred and, furthermore, he engaged in tactics significantly delaying the victim getting medical attention for his serious injuries. Real remorse happens at the time or very soon after events occur in a situation such as the present one with the realisation of what an appellant has done and immediate remedial steps follow. For all those reasons I am satisfied here, it was open to the Judge to give no award or discount for remorse.

[30]   The courts have often found it appropriate on occasions to give a discount where an individual has mental health issues. The appellant has not been conclusively found to have a mental disorder here, however. Rather, he appears to suffer from more general mental health issues such as depression, with his (Metoui) psychological report noting that, at the highest, he has simply in the past been medicated for

depression. Therefore, as the respondent submits, cases such as E v R,12 which states that mental disorders falling short of exculpating insanity should be taken into account in sentencing, do not directly apply to him.13 Nonetheless, on occasions even mental health issues less serious than that are typically taken into account by the Court. A possible discount in the range of five – ten per cent here, it is suggested, would suitably recognise the appellant’s personal difficulties.

[31]   In my view, there is a possible argument that the Judge, therefore, might have awarded some discount or allowance to recognise the appellant’s psychological issues in this case. However, such an award, as I see it, would have been relatively minor and the Judge’s generous discount for the appellant’s guilty plea, to an extent, would offset this. All this must mean that the end result was within an appropriate range.

Conclusion

[32]   For all the reasons outlined above, I find that the sentence imposed on the appellant here was not manifestly excessive. The start point of six years was appropriate in the context of the offending and was in line with other authorities. The total overall discount given by Judge Roberts was sufficient to account for the appellant’s relatively late guilty plea and any possible mitigating circumstances.

[33]This appeal is dismissed.

...................................................

Gendall J

Solicitors:

Eagles Eagles & Redpath, Invercargill Preston Russell Law, Invercargill

12     E v R, above n 5.

13     E v R [2011] NZCA 13.