MATTHEWS v NEW ZEALAND POLICE [2017] NZHC 2379

MATTHEWS v NEW ZEALAND POLICE [2017] NZHC 2379 [29 September 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2017-409-87[2017] NZHC 2379BETWEEN RODERICK YOUNGER MATTHEWSAppellantAND NEW ZEALAND POLICERespondentHearing: 21 September 2017Appearances: A Williams for AppellantS Dayal for RespondentJudgment: 29 September 2017JUDGMENT OF MANDER J[1] The appellant, Mr Roderick Matthews, appeals a two year prison sentenceimposed by Judge Saunders on a charge of recklessly causing grievous bodily harm tohis six month old daughter. A cumulative sentence of two years on charges ofreceiving and burglary is not the subject of complaint.[2] Mr Matthews argues a starting point of two and a half years for the violencecharge was too high and resulted in a sentence which was manifestly excessive. TheCrown submits the starting point and end sentence was in range.Factual background[3] The circumstances in which the offending occurred are unusual. Mr Matthewsand his partner were engaged in sex whilst the victim was lying on her front next tothem on the bed. Whilst her parents were having sex the baby's leg became trappedunder Mr Matthews' knee and as a result she began to cry.[4] Mr Matthews' partner told him to desist in the sexual activity. However, hebecame angry. Without lifting his body weight off the baby, he grabbed one of herlimbs and, with an upward movement, attempted to pull her out from under him andto the side. The baby screamed as she was moved and continued to do so.Mr Matthews's struck her on the bottom with an open palm to stop her from crying sohe could continue having sex before his partner got up to attend to the victim.[5] As a result of Mr Matthews' actions and the level of force he applied, the babyreceived a spiral fracture to the right femur. This is consistent with a twisting forcehaving been applied to the bone. In explanation, Mr Matthews admitted his actions,and stated that, in persevering with having sex with his partner, he was being selfishand thinking only of himself.Sentencing Judge's approach[6] At sentencing, Judge Saunders expressly acknowledged that Mr Matthews hadbeen charged "at the level of recklessness as opposed to intent". The Judge noted hisactions were to be contrasted with those involved in other cases where there had beena deliberate punching of a child. However, his physical reaction had resulted fromanger or annoyance at the child. Judge Saunders observed Mr Matthews had treatedthe child very roughly, causing her obvious pain and discomfort, and resulting in herhaving to experience a lengthy and uncomfortable period of recuperation includingher leg being encased in a cast.[7] Adopting a starting point of two years and six months imprisonment,Mr Matthews was afforded six months credit in recognition of his guilty plea.Approach to appeal[8] An appeal Court may only disturb a sentence if it is satisfied there has been anerror in the sentence imposed and that an alternative sentence should be substituted.11 Criminal Procedure Act 2011, s 250.If the sentence can properly be justified having regard to relevant sentencingprinciples, an appeal Court cannot substitute its own views for those of the sentencingJudge. The sentence must be either manifestly excessive or inappropriate.Furthermore, it is not sufficient if the Judge has made an error in his or her reasoning:the focus is on the end sentence rather than the process by which that sentence hasbeen achieved.2The appeal[9] By reference to a number of sentencing decisions, Mr Williams on behalf ofthe appellant submitted the starting point taken by Judge Saunders was too high. Heargued that a more appropriate starting point would have been 18 monthsimprisonment based upon the relative seriousness of Mr Matthews' actions. Heemphasised the incident was an isolated one which was not part of any pattern ofviolence, and it had only occurred as a result of Mr Matthews being temporarilydistracted.[10] In particular, Mr Williams sought to distinguish previous cases where theoffender had deliberately inflicted violence but had been reckless as to theconsequences, whereas in Mr Matthews' case the act itself had been merely reckless.Mr Williams submitted that, while Judge Saunders had recognised that distinction, hehad failed to allow for it in setting the starting point. He described previous cases thathad been referred to the sentencing Court by the Crown as being far more serious,involving, as they did, deliberate acts of violence.Analysis[11] A number of sentencing decisions were discussed by counsel in their writtenand oral submissions, some of which were considered during the course of the DistrictCourt sentencing process. Mr Williams and Ms Dayal on behalf of the Crown madecompeting submissions regarding whether these authorities concerning the recklessinfliction of harm supported their respective positions.2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].[12] In R v Sisley, a starting point of three and a half years imprisonment was takenwhere the defendant seriously assaulted a nine month old baby.3 Subdural bleedingand retinal haemorrhages had been caused as a result of what was believed to havebeen the defendant's violent shaking and/or striking of the baby's head against a hardsurface. Similarly, in R v Brown, the Court of Appeal indicated that a starting point ofthree and a half years imprisonment was appropriate in a case where a defendant hadpunched his 14 month old son in the face causing him serious injuries.4[13] In R v Rihia, a starting point of two and a half years imprisonment was appliedwhere a defendant had punched another bar patron during the course of adisagreement.5 The punch had resulted in the victim losing consciousness and fallingto the ground. While the offending was against an adult, the case provides an exampleof offending involving a single isolated piece of violence albeit as the result of adeliberate blow.[14] In R v Wilson, the respondent was sentenced to three and a half yearsimprisonment after being found guilty on several charges of assault against a babybetween the ages of 6 to 12 weeks.6 These included assaults that had resulted in thebreaking of the baby's forearm, ribs, collarbone, a fractured skull and broken leg. Thesentencing Judge adopted a starting point of four and a half years imprisonment withan end sentence of three and a half years. On a Solicitor-General's appeal the Courtof Appeal observed that such offending could have attracted a starting point of eightyears imprisonment, and the sentence imposed was more appropriate for a serious one-off assault on a very young child. The original sentence was substituted for one of sixyears imprisonment. The offending in that case is far removed from the present,however, the endorsement of a three and a half year sentence for a serious act ofviolence on a child is worthy of note.[15] Mr Williams submitted these cases, both at first instance and on appeal,involved significantly more serious offending, where an infant had been subjected toviolent shaking, or been the subject of deliberate blows or acts of violence. He3 R v Sisley [2014] NZHC 396.4 R v Brown [2009] NZCA 288.5 R v Rihia [2016] NZCA 90.6 R v Wilson [2004] 3 NZLR 606 (CA).contrasted that with the reckless nature of Mr Matthews' actions in pulling the babyout from under him and being reckless as to the consequences which followed, whichhe submitted should attract a significantly lower starting point.[16] In Waitohi v R, the appellant was convicted of wounding and injuring a babywith reckless disregard, for which he was sentenced to six and a half yearsimprisonment.7 The wounding charge involved the appellant jamming his finger downthe throat of his 27 day old victim. This resulted in a large tear to the back of thevictim's throat, requiring her to be hospitalised and fed through a tube for some twomonths before being discharged. The injuring charge related to the victim having mostlikely been squeezed by the appellant, causing two ribs to fracture.[17] The sentencing Judge took a starting point of four and a half years for thewounding charge. A further two and a half years was added for the injuring charge,which was reduced by one year in recognition of totality. While Mr Williamssubmitted this case was again significantly more serious than the present offending,the Crown emphasised the Court of Appeal's endorsement of the separate cumulativesentence of two and half years imprisonment for the lesser charge of injuring withreckless disregard.[18] On appeal, the Court of Appeal observed that the earlier cases of Brown andWilson predated the enactment of s 9A of the Sentencing Act 2002 (the Act). Thisprovision requires a Court when sentencing offenders for violence against children totake into account particular factors, including the defencelessness of the victim, theseriousness of the injury caused, and the breach of trust involved in the offending. TheCourt of Appeal recognised that s 9A had been enacted in response to a growingconcern regarding the infliction of violence on children and the need for a sternerapproach. It noted that this legislative initiative may render earlier sentences of lessvalue when setting an appropriate sentence for such offending.8[19] As Ms Dayal submitted on behalf of the Crown, it is clear Judge Saundersrecognised the offending in the present case was less serious than in a number of the7 Waitohi v R [2014] NZCA 614; R v Waitohi [2014] NZHC 1018.8 R v Pene [2010] NZCA 387 at [13]; R v Hall [2012] NZCA 518 at [18].earlier sentencing decisions to which he had been referred. In particular that theinjuries were neither life-threatening, nor was there any suggestion of any permanentdisability. The Crown submitted the adjustment Judge Saunders made in setting thestarting point was appropriate having regard to the factors set out in s 9A of the Act,including the very young age of the child, and Mr Matthews' motivation at the time,reacting, as he did, out of anger and annoyance.Decision[20] While I appreciate the difference Mr Williams seeks to make between thenature of the acts of violence the subject of earlier cases and the physical action ofMr Matthews in the present offending, I do not consider that distinction entirely bearsscrutiny. Mr Matthews is charged with having recklessly caused grievous bodily harmas a result of his deliberate application of force to a very young child.[21] He intentionally grabbed and pulled the child while she was pinned underneathhis leg. This was an entirely deliberate action which involved an excessive andunacceptable level of force. However, I accept while it was a violent act, it can bedistinguished from a deliberate blow or an act which inherently carries with it theintention or likelihood of harm. The nature of the act in the present case can perhapsbe likened to where an offender, in a state of frustration, grabs, shakes or squeezes ababy, recklessly causing harm.[22] I consider Mr Matthews' offending to be analogous in terms of relativeseriousness to the lesser charge in Waitohi. In that case two of the child's ribs werebroken by the offender squeezing him, and a starting point of two and a half years wasadopted. However, having made that observation, I accept Mr Williams' submissionthat the physical act or mechanism by which the baby's injury was sustained wasunusual and must be considered less serious in the absence of any associated violenceor mistreatment of the child.[23] Regard must always be had to those matters which the Court is required toconsider under s 9A of the Sentencing Act. In particular, the child's vulnerability, theinherent breach of trust involved in a parent seriously harming his child, and theconsequences for the child. These are all matters which in the circumstances of thiscase a sentencing Court is required to be cognisant.[24] Notwithstanding those circumstances, I accept Mr Williams' submission thatthere was no reasonably available inference from Mr Matthews' physical action fromwhich to conclude there was any intention to deliberately cause pain to the child.Accordingly, I consider it was necessary for the sentencing Judge to adopt a lowerstarting point than he did in order to accurately reflect the relative culpability ofMr Matthews when compared with other cases involving the reckless infliction ofharm. A starting point of two years would have been within range.[25] Mr Matthews was afforded a generous 20 per cent credit for his guilty pleawhich was not entered until some seven months after his first appearance. As a result,no further adjustment beyond a six month reduction in the starting point is required.While not articulated by the sentencing Judge, this credit likely took into accountconsiderations of remorse and the personal circumstances of Mr Matthews which werecanvassed earlier by Judge Saunders in his sentencing remarks in respect of thedishonesty offending.[26] The appeal against sentence is allowed. Applying a starting point of two years,followed by a 20 per cent reduction, results in an end sentence of 19 monthsimprisonment. The original sentence of two years imprisonment on the charge ofrecklessly causing grievous bodily harm is quashed and substituted with a term of oneyear and seven months. The effective cumulative term of imprisonment of two yearsfor Mr Matthews' dishonesty offending remains unaffected.Solicitors:Public Defence Service, ChristchurchRaymond Donnelly & Co, Christchurch