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…

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 Strydom v R

Details

AGLC: Strydom v R [2018] NZHC 358
Case: [2018] NZHC 358
Decision Date: 8 March 2018

CaseChat Overview and Summary

In this case, Jonathon Strydom appeals against the four years and six months' imprisonment sentence imposed by Judge Roberts in the District Court for causing grievous bodily harm to his six-week-old son with intent, contrary to s 188(1) of the Crimes Act 1961. The court was required to determine whether the starting point of six years and the overall sentence was appropriate given the circumstances of the case. The appellant argued that the starting point was too high, and no separate allowance was given for his remorse or willingness to attend restorative justice, and that the judge should have recognised his mental instability and history of depression as mitigating factors. The respondent contended that the sentence was in line with authority and not manifestly excessive.

The court found that the starting point of six years was appropriate, considering the increased culpability due to the appellant's intent to cause grievous bodily harm. The court also noted that the aggravating factors present in this case, such as the seriousness of the injuries and the victim's vulnerability, supported the starting point. Furthermore, the court found that no discount was warranted for the appellant's personal circumstances or other mitigating factors, such as his remorse and willingness to attend restorative justice, as there was little evidence of genuine remorse and the appellant had rationalised and minimised the severity of his offending. Although mental health issues might warrant a discount in some cases, the court found that such an award, if any, would have been relatively minor and the judge's generous discount for the appellant's guilty plea offset this. Thus, the overall sentence was within an appropriate range.

The appeal was dismissed, and the original sentence of four years and six months' imprisonment was upheld.

Orders