KAHU v R [2021] NZCA 431

KAHU v R [2021] NZCA 431 [3 September 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGEOF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDUREACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA331/2021[2021] NZCA 431BETWEEN JASON WAYNE KAHUAppellantAND THE QUEENRespondentHearing: 26 August 2021Court: Collins, Duffy and Peters JJCounsel: R M Lithgow QC and E J Riddell for AppellantE J Hoskin and A H N Forward-Taua for RespondentJudgment: 3 September 2021 at 11.00 amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Following a 13-day trial in the District Court at Nelson, Mr Kahu was foundguilty of injuring his 11-month-old child (E) by an unlawful act.1 He was sentencedby Judge Ruth to 18 months' imprisonment and granted leave to apply to theDistrict Court for a substituted sentence of home detention.2 He contends on appealthat the sentence was manifestly excessive and he urges us to impose acommunity-based sentence.Background[2] In June 2016, Mr Kahu was living with Ms Pai in Blenheim. Also living intheir house were four children of Ms Pai from a previous relationship and E, the onlybiological child of Mr Kahu and Ms Pai.[3] On 22 June 2016, Ms Pai went shopping at about midday. At 12.25 pmMr Kahu sent Ms Pai a text message saying that E had fallen off a bed and that theirbaby was "weird" and not "breath[ing] properly". Mr Kahu asked Ms Pai to "hurry"back. Twelve minutes later Mr Kahu and Ms Pai arrived at Wairau Hospital with Eand told hospital staff their baby had fallen off their bed and that when Mr Kahu wentinto the bedroom, he thought E had "knocked himself out". Mr Kahu also said E "wasgasping for breath", his eyes were "vacant" and that E was "floppy" when Mr Kahupicked him up.[4] The baby was assessed by medical staff, who quickly appreciated he was in aserious state. He was transferred to Te Puaruruhau (Starship Hospital) in Auckland.Ms Pai accompanied E on the flight to Auckland. Mr Kahu went to Auckland twodays later.1 Crimes Act 1961, s 190.2 R v Kahu [2021] NZDC 9642 [Sentencing notes].[5] At Te Puaruruhau Mr Kahu spoke to Dr Chan, whose evidence became animportant feature of the trial. Mr Kahu repeated to Dr Chan what he had told medicalpersonnel at Wairau Hospital about how E had fallen off the bed, was "floppy", and"gasping and struggling to breathe". He demonstrated to Dr Chan how he held E withboth hands and "gently jiggl[ed]" the baby, saying words to the effect, "come on son,come on".[6] An MRI brain scan at Te Puaruruhau showed that E had sustained a significantbrain injury. He had a fracture to his skull and had suffered significant deprivation ofoxygen to his brain. This in turn resulted in E suffering cerebral palsy. There was alsoevidence of an earlier fracture to E's clavicle (collarbone).[7] In a report prepared in January 2021, Dr Muir, a paediatrician, explained thatE is dependent on nutrition being delivered by a gastronomy tube. He is transportedin a wheelchair and has very few communication abilities. E appears to have limitedvision and he will require intensive support for at least the foreseeable future andprobably for the rest of his life in order to perform basic daily functions, such astoileting and washing.[8] The initial evidence concerning E's injuries triggered an intensive policeinvestigation, which included an undercover officer surreptitiously accompanyingMr Kahu when he flew to Auckland to be with E and Ms Pai. Undercover officerstook Mr Kahu for a meal and to a pub in Auckland on the way to Te Puaruruhau. Thesesteps were taken by the police in order to see if Mr Kahu would say anything of interestconcerning the injuries sustained by E. The undercover officers had concealedmicrophones on them to enable recordings to be made of anything that Mr Kahu said.The police also obtained warrants to intercept the telephone communications betweenMr Kahu and Ms Pai and to install a listening device in their bedroom atRonald McDonald House in Auckland. Just under 5,000 conversations betweenMr Kahu and Ms Pai were intercepted and a selection were played to the jury. In allof those conversations Mr Kahu said E had fallen off the bed.[9] The only matter of interest to the police that emerged from the communicationsbetween Mr Kahu and Ms Pai was the text sent by Mr Kahu to Ms Pai on 22 June2016, in which he urged her to come home. The scenario advanced to the police byMr Kahu and Ms Pai was that they were both home when E was injured, and thisscenario was abandoned when the police discovered the text message sent by Mr Kahuto Ms Pai. Mr Lithgow QC, senior counsel for Mr Kahu, said the scenario that Ms Paiwas with Mr Kahu when E was injured was a lie, but one that should "be put in thecontext of a Māori family arriving at the Emergency Department with a very unwellbaby". Mr Lithgow said research has shown that Māori in the situation facingMr Kahu and Ms Pai when they took E to hospital "feel discriminated against, haveexperienced overt racism and have felt interrogated".[10] Mr Kahu was spoken to by the police on several occasions. On the night of22 June 2016, he said that E fell off the bed when he and Ms Pai were both at homeand that when he went into the bedroom, he could see that E was struggling to breathe.Mr Kahu said he knew something was wrong as E's eyes were not moving and that hejust kept "trying to breathe" when Mr Kahu tried to coax a response from him.[11] Mr Kahu was also interviewed by the police on 1 August 2016 once the policehad gathered more information from the doctors caring for E. We shall refer to thekey aspects of that evidence at [18] to [19]. During the interview on 1 August 2016,Mr Kahu said he was in a state of panic and shock when he found E on the bedroomfloor. He said he tried to "make [E] come to" and demonstrated cradling a baby androcking it in a gentle manner.The trial[12] Mr Kahu and Ms Pai were both charged with a variety of offences. The maincharges against Ms Pai alleged she had assaulted, ill-treated and neglected two of herother children and that she had attempted to obstruct the course of justice when shetold police that she was at home with Mr Kahu when E suffered his injuries. At theend of the trial, Ms Pai was convicted of five charges and sentenced to 18 months'imprisonment by Judge Ruth.3 She was not convicted on the charge of attempting toobstruct the course of justice or any other charge relating to the infliction of injuriesupon E.3 R v Pai [2021] NZDC 9869.[13] Mr Kahu was initially charged with wounding E with intent to cause grievousbodily harm. That offence carries a maximum sentence of 14 years' imprisonment.4An alternative charge of causing grievous bodily harm with reckless disregard wasalso laid against Mr Kahu. That charge carries a maximum sentence of seven years'imprisonment.5 When the trial commenced in 2020, the Crown proceeded againstMr Kahu only with the charge of causing grievous bodily harm with recklessdisregard. At the conclusion of the Crown's evidence, Judge Ruth granted anapplication made on behalf of Mr Kahu to introduce, as an alternative charge, injuringby an unlawful act which has a maximum penalty of three years' imprisonment.6It was this charge that Mr Kahu was convicted on.[14] The offence of injuring by an unlawful act is expressed in the following wayin s 190 of the Crimes Act 1961:190 Injuring by unlawful actEvery one is liable to imprisonment for a term not exceeding 3 years whoinjures any other person in such circumstances that if death had been causedhe or she would have been guilty of manslaughter.[15] The decision to introduce the charge of injuring by an unlawful act appears tohave been primarily based upon the evidence of Dr Jayamohan, a paediatricneurosurgeon at the John Radcliffe Hospital in Oxford and at the Oxford Children'sHospital. Dr Jayamohan is also a senior lecturer at Oxford University. His evidencewas adduced on behalf of Mr Kahu and was interpolated during the Crown case.The essence of Dr Jayamohan's evidence caused Judge Ruth to reflect on whetherthere was sufficient evidence to establish that Mr Kahu had been reckless whencausing the brain injuries suffered by E. The Judge accordingly decided that it was in"the interests of justice" for the jury to have the option of considering the lesser chargeif they found Mr Kahu not guilty of causing grievous bodily harm with recklessdisregard.74 Crimes Act, s 188(1).5 Section 188(2).6 Section 190.7 R v Kahu [2020] NZDC 26471 at [15].[16] Mr Kahu exercised his right not to give evidence. During the course of thetrial, Mr Lithgow questioned witnesses about other possible causes of some of E'sinjuries. Those possibilities included E falling out of a "baby jumper" and having beendropped from the arms of one of Ms Pai's other children. Evidence was given in thetrial which showed the height of the bed from which E was said to have fallen was68 centimetres.The medical evidence[17] The critical question for the jury to consider was whether Mr Kahu wasculpable, and if so, to what degree. That issue required the jury to carefully assessexpert medical evidence, and in particular, the evidence given by Dr Chan andDr Jayamohan.[18] Although a number of medical specialists gave evidence for the Crown,Dr Chan summarised their evidence when giving her testimony. Dr Chan is apaediatrician at Te Puaruruhau and was one of the medical personnel responsible forE's care after he was transferred to Auckland. The key features of E's presentationwhen he arrived at Te Puarururhau were as follows:(a) The healed fracture of his left clavicle. This injury was not related toE's brain injury.(b) A bilateral subdural haemorrhage at the juncture of the spine and E'sskull. This type of haemorrhage is caused when cortical veins rupturedue to shearing forces when there is a sudden change in the movementof the head. This phenomenon was referred to by Dr Chan and otherspecialists as "extension flexion mechanism". Dr Chan said that in E'scase, the subdural haemorrhage was the consequence of "significant"force which could have been caused by a single incident of "violentshaking".(c) A skull fracture to the back-left side of E's head. When viewed inisolation it was not possible to determine when the fracture occurred.Dr Chan agreed that the fracture to E's head could have been caused byhim falling from the bed.(d) Retinal haemorrhages that were related to E's brain injury.[19] When Dr Chan considered the injuries we have summarised at [18(b)–(d)], sheconcluded E's brain had "suffered very significant trauma" and that the explanationsprovided by Mr Kahu and Ms Pai could not account for the injuries. In particular,Dr Chan said that studies in medical literature suggested the injuries suffered by Ewere unlikely to have been sustained by a fall of less than 1.2 metres.[20] Dr Chan was asked to look at the portion of Mr Kahu's DVD interview withthe police on 1 August 2016 in which he demonstrated the way he was trying to reviveor arouse E. Dr Chan was unequivocal in her evidence when she said the injuriessuffered by E could not have been caused by the way Mr Kahu said he had held andtried to revive E.[21] Dr Jayamohan's evidence was largely consistent with the evidence that hadbeen given by Dr Chan. He explained the following in very clear terms:(a) The skull fracture could have been caused by a fall from the bed or froman earlier event in which it was said E fell from the arms of his sister.(b) The subdural haemorrhage detected in E was caused by "shaking",which Dr Jayamohan went on to describe as "excess movement forwardand backwards of the head on the neck". The subdural haemorrhage,when considered with the brain injury suffered by E and his loss ofconsciousness could not be explained "by a low level fall within ahousehold".(c) Dr Jayamohan agreed "a single but violent shake" could have causedthe significant injuries suffered by E. He agreed in cross-examinationthat "extensive uncontrolled flexion extension of [E's] head would havebeen required" in order to cause his injuries.(d) When referring to Mr Kahu's interview with the police on 1 August2016, in which he described trying to revive E, Dr Jayamohan said thatif the description provided by Mr Kahu was of "a very gentlemovement" that would not explain the injuries suffered by E.[22] In describing the type of event that would have caused E's brain injuries,Dr Jayamohan said that if a member of the jury saw what was taking place they wouldimmediately say "that's not right what's going on[?]"Sentencing notes[23] When sentencing Mr Kahu, the Judge acknowledged from the outset thatMr Kahu could only be sentenced on the charge of injuring by an unlawful act but thatthe Judge was entitled to form his own views of the facts provided his assessment wasconsistent with the jury's verdict.8[24] The Judge explained his scepticism that E had fallen off the bed as claimed byMr Kahu because only Mr Kahu advanced that explanation and, in the Judge's view,Mr Kahu was not to be believed because from the time it was realised that E wasinjured, Mr Kahu set out to avoid blame by advancing the false scenario that he andMs Pai were both at home when E was injured.9 The Judge accepted however, thatthe brain injury suffered by E may have been caused by one shake, but that it wouldhave been a "violent shake".10[25] The Judge placed some reliance on two cases in which defendants had beenconvicted of causing grievous bodily harm with reckless disregard.11 In both cases thesentencing Judges accepted the victim's injuries were caused by a single act of thedefendant arising out of a moment's loss of control or during an attempt to resuscitatea child. In R v Te Waaka, the sentencing Judge adopted a starting point of three years'8 Sentencing notes, above n 2, at [1]–[2].9 At [7].10 At [8].11 R v Te Waaka HC Auckland CRI-2006-092-15178, 7 April 2008; and R v Thorburn HC AucklandT023763, 30 July 2003.imprisonment.12 In R v Thorburn, the starting point was two and a half years'imprisonment.13[26] In his sentencing notes the Judge identified the need to hold Mr Kahuaccountable, denounce his conduct and deter him or others from similar offending.14The Judge also acknowledged the need to impose the least restrictive outcome thatwas available in the circumstances.15[27] After adopting a starting point of 18 months' imprisonment, the Judge acceptedthere was no need to increase that starting point on account of Mr Kahu's previousconvictions.16 Mr Kahu's last violence offences occurred in 2001. His most recentconviction was in 2013 for driving with excess breath alcohol. It was his thirdconviction for offending of that kind.[28] The Judge could find no mitigating factors. In particular he said thepre-sentence report demonstrated Mr Kahu did not accept he was blameworthy andtherefore he had failed to demonstrate meaningful remorse.17[29] The end sentence was therefore 18 months' imprisonment.18[30] "Somewhat against [his] better judgement", Judge Ruth granted Mr Kahu theopportunity to apply to have his sentence of imprisonment converted to a sentence ofhome detention.19Grounds of appeal[31] In their comprehensive submissions, Mr Lithgow, and his junior counsel,Ms Riddell, submitted Mr Kahu should never have been sentenced to a term ofimprisonment. That submission was based on the view that Mr Kahu caused E's12 Te Waaka, above n 11, at [21].13 R v Thorburn, above n 11, at [32]. This was after taking into account aggravating and mitigatingfactors except the guilty plea.14 Sentencing notes, above n 2, at [14].15 At [17].16 At [22] and [25].17 At [27].18 At [29].19 At [31].injuries through a momentary lapse of judgement, when he endeavoured to revive Eafter finding him on the floor following E's fall from the bed.[32] Mr Lithgow argued that there was no evidence of Mr Kahu injuring E whilestressed or out of control. The fracture to E's skull and the previous injury to hiscollarbone misled the authorities and the Judge into believing Mr Kahu had violentlyassaulted E whereas, in Mr Lithgow's submission, the evidence showed that E hadsuffered his injuries through a single unintended event.[33] Mr Lithgow criticised the Judge for having relied upon the lie that Mr Kahuconcocted when he told authorities that he was at home with Ms Pai when E wasinjured. We have already referred to the explanation put forward for the misleadingscenario initially promoted by Mr Kahu and Ms Pai. Mr Lithgow also said that theJudge failed to consider evidence of Mr Kahu's remorse, and that any lack of remorseon Mr Kahu's part needed to be considered in the context of the grossly misleadingway undercover police officers had endeavoured to befriend Mr Kahu. It was alsosaid on behalf of Mr Kahu that the pre-sentence report writer relied on a summary offacts prepared when the charge faced by Mr Kahu was causing grievous bodily harmwith reckless disregard, and that the author of that report had no knowledge ofMr Kahu's true culpability.[34] Mr Lithgow explained that Mr Kahu's application to have his sentencesubstituted for one of home detention cannot be heard by the District Court at Nelsonuntil late September 2021. It was argued that, in any event, such an application wouldbe rendered nugatory if we allowed Mr Kahu's sentence and imposed acommunity-based sentence.The response[35] Ms Hoskin, for the Crown, submitted that the sentence imposed was verygenerous and that there was ample evidence that Mr Kahu had caused E's serious braininjuries by using significant force, such as by shaking E violently, albeit possibly onjust one occasion.[36] Ms Hoskin suggested that although there was a dearth of sentencing decisionsin relation to injuring by an unlawful act, we could derive some guidance from theapproaches taken by the High Court in Te Waaka and Thorburn, even though thosecases involved offending that attracted a maximum starting point of seven years'imprisonment.20[37] In addition to drawing support from the purposes and principles of sentencingset out in ss 7 and 8 of the Sentencing Act 2002, Ms Hoskin emphasised thesignificance of s 9A of the Sentencing Act, which is engaged when sentencing adefendant in cases involving violence against, or the neglect of, a child under the ageof 14 years. In such cases, the Court must take into account the following aggravatingfactors to the extent that they are applicable:21(a) the defencelessness of the victim:(b) in relation to any harm resulting from the offence, any serious orlong-term physical or psychological effect on the victim:(c) the magnitude of the breach of any relationship of trust between thevictim and the offender:(d) threats by the offender to prevent the victim reporting the offending:(e) deliberate concealment of the offending from authorities.[38] Ms Hoskin submitted the factors referred to in (a), (b), (c) and (e) were allpresent in this case.[39] In Ms Hoskin's submission, any reduction in Mr Kahu' sentence would notgive appropriate recognition to his deliberate use of considerable force and the seriousinjuries suffered by E.20 R v Te Waaka, above n 11; and R v Thorburn, above n 11.21 Sentencing Act 2002, s 9A(2).AnalysisInjuring by an unlawful act[40] We shall commence our analysis with an explanation of the charge upon whichMr Kahu was convicted.The evidence[41] In assessing the evidence, we place to one side the injury that had previouslybeen caused to E's collarbone, and the fracture to his skull. We do so because ourreading of the expert evidence is that, although the fracture to E's skull may haveoccurred in conjunction with his brain injuries, it is also possible it occurred at anothertime. In reaching this conclusion, we note Dr Jayamohan explained that babies oftensuffer asymptomatic fractures to their skulls through ordinary events in their lives.Dr Chan accepted that the facture to E's skull could have occurred through him fallingfrom a bed.[42] What is inescapable, however, is that the brain injuries suffered by E occurredthrough the application of considerable force that involved excessive forward andbackward movement of E's head. Dr Jayamohan agreed with Dr Chan that E's injurieswere consistent with him being the victim of a "single but violent shake".[43] When we apply these facts to the legal test required for a conviction unders 190 of the Crimes Act,22 we are drawn to the conclusion that in order for the jury tohave convicted Mr Kahu, it must have been satisfied beyond reasonable doubt that heacted with gross negligence when inflicting the brain injuries suffered by E.[44] This conclusion means that like Dr Chan, Dr Jayamohan and the Judge, we donot accept Mr Kahu's descriptions and demonstrations of his acts to the police andmedical authorities. The injuries suffered by E were not caused by a benign attemptto revive him.22 Crimes Act, s 150A. Section 150A applies in respect of an unlawful act referred to in s 160(culpable homicide) where the unlawful act requires proof of negligence or is a strict or absoluteliability offence. As s 190 applies where, if death had been caused, the defendant would have beenguilty of manslaughter, s 150A also provides the applicable standard in respect of injuring by anunlawful act in s 190.The right sentence[45] Bearing in mind the very serious injuries suffered by E and the grossnegligence that occurred when Mr Kahu inflicted those injuries, we are satisfied thatthe starting point adopted by the Judge cannot be impeached. There are two reasonswhich have underpinned this aspect of our judgment.[46] First, it is necessary to give proper effect to s 9A of the Sentencing Act. In thiscase:(a) the victim was an 11-month old baby;(b) E has suffered profound long-term physical injuries;(c) the gross negligence that was a feature of Mr Kahu's offendinginvolved a breach of the bond of trust between him and his son; and(d) Mr Kahu set out to deflect attention from himself by claiming he wasnot at home alone with E when the events in question occurred.[47] Second, while the cases of Te Waaka and Thorburn involved offending thatcarried a maximum sentence of seven years' imprisonment, they provide someassistance in assessing the right sentence in this case.[48] As we have noted, in Thorburn a two and a half year starting point was adoptedwhen Mr Thorburn caused lifelong injuries to his partner's son after accidentallydropping the child and then shaking him vigorously in an effort to revive him.In Te Waaka, the defendant shook his infant son in a moment of anger, thereby causinggrievous bodily injury to the child.[49] We acknowledge there are important differences between those cases and thefacts before us. In particular, there was no evidence Mr Kahu acted in a moment ofanger and for present purposes we accept that he did not drop E. Those cases providesome support, however, for our view that convictions under s 190 that entail acts ofgross negligence and which cause devastating injuries of the kind suffered by E willusually attract a sentence of imprisonment, albeit of a far shorter term than those thatare normally seen in cases following convictions for causing grievous bodily harm byreckless disregard.[50] In assessing the correct end sentence for Mr Kahu, we accept the Crownsubmission that Mr Kahu deliberately set out to deflect attention from himself whenhe persuaded Ms Pai to tell authorities that she was with him when E was injured.We also appreciate that people can lie for a variety of reasons, particularly in momentsof extreme stress. The Judge was correct, however, when he concluded this particularlie was designed to mislead authorities in relation to Mr Kahu's role in causing E'sinjuries.23 Similarly, we cannot interfere with the sentencing Judge's assessment thatMr Kahu lacked genuine remorse.24 The Judge reached that assessment after presidingover Mr Kahu's trial, which lasted for 13 days. He was in a far better position than usto evaluate Mr Kahu's attitude.[51] We therefore conclude that the sentence imposed by the Judge was within therange that was reasonably available and not manifestly excessive.[52] Nothing in this judgment prevents Mr Kahu from continuing with hisapplication for a substituted sentence of home detention which, if granted, will needto reflect the time he has already spent in custody.Result[53] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent23 Sentencing notes, above n 2, at [24].24 At [29].