R V WEBSTER HC AK CRI-2007-092-013782 [2009] NZHC 163 (18 February 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                CRI-2007-092-013782



                                        THE QUEEN



                                                v



                   
         STEVEN ALBERT WEBSTER



Appearances: K J Gray for Crown
             E Te Whata for Accused

Judgment:      18 February
2009 at 9:00 am



                     SENTENCING NOTES OF COURTNEY J




Solicitors:     Meredith Connell, P O Box 2213, Auckland
1001
                Fax: [phone] ­ K Glubb

Counsel:        E Te Whata, P O Box 76629, Manukau 2241


R V WEBSTER HC AK CRI-2007-092-013782
18 February 2009

               Fax: [phone]


Introduction


[1]    Steven Albert Webster you appear today for sentence
on the following
charges:


       ·       One charge of wounding your former partner Simone Boroevich with
               intent
to injure her, the maximum penalty for which charge is seven
               years imprisonment


       ·       One representative
charge of assault with intent to injure Simone
               Boroevich, the maximum penalty for which is three years
          
    imprisonment


       ·       One representative charge of male assaults female in respect of Ms
               Boroevich, the
maximum penalty for which is two years
               imprisonment


       ·       Two representative charges of assault against
Ms Boroevich's
               daughter Jahlene Herewini, the maximum penalty for which is two
               years imprisonment


       ·       One charge of assault with intent to injure Jahlene Herewini, the
               maximum penalty for which is three
years imprisonment


       ·       Two representative charges of assault in respect of Ms Boroevich's
               second daughter
Stephanie Herewini, the maximum penalty for which
               is two years imprisonment


       ·       One charge of assault
with intent to injure Stephanie Herewini, the
               maximum penalty for which is three years imprisonment

           
·        One charge of failing to provide the necessaries in respect of
                     Amethyst Boroevich, the maximum penalty
for which is seven years
                     imprisonment.


[2]         These charges relate to the period between February and
August 2007 when
you were living with Ms Boroevich at an address in Papakura. Also living with you
were Ms Boroevich's two children
from her previous relationship, Jahlene and
Stephanie, aged five and three respectively, and the child you had together, Shaolin
aged two. Another child, Amethyst, was born in July 2007. I note here that in 2006
you had also had a son, Shinobi Law, who died
following a premature birth. Your
convictions on the assault charges followed guilty pleas at the outset of the trial.
Your convictions
on the more serious charges followed guilty verdicts. The charges
reflect a depressing pattern of domestic violence against Ms Boroevich
and her older
two children.


[3]         In sentencing in cases like this my main objectives are to hold you
accountable for the
harm that you have done both to your victims and in the
community, to promote a sense of responsibility for that harm, provide for
the
interests of the victims, denounce this conduct and deter you and others who might
similarly behave in such a way from committing
these kinds of offences, to protect
the community from you and to the extent that I am able assist in your rehabilitation
and reintegration1.
I am required to apply the principles that are laid down in the
Sentencing Act 2002 and in this case that particularly means taking
into account the
gravity of the offending, your culpability, the desirability of consistency in
sentencing levels, the effect on
the victims and the need to impose the least
restrictive outcome that is appropriate2.


[4]         In this case the Crown seeks
to have me impose concurrent sentences in
respect of the charges involving violence against Ms Boroevich and her children
with a cumulative sentence in respect of the
charge for failing to provide the
necessaries. Your lawyer has submitted that I should impose concurrent sentences in
respect of
all the offences. But the charge of failing to provide the necessaries is

1
    s 7(1)(a-c), (e-h)
2
    s 8(a), (d), (e-g)

quite
different in nature to the other charges and relates to a very specific occasion
and I consider that it is appropriate to impose
concurrent sentences in respect of the
violence charges and a cumulative sentence in respect of the failure to provide the
necessaries
charge. However, I am required at the end to stand back and consider
whether the total amount of time I impose would be wholly out
of proportion to the
gravity of the overall offending and adjust it if I consider that it would be.


Personal circumstances


[5]
   Before I review the facts of the offending and consider the appropriate
sentences on these charges, I am going to talk for a moment
about you and your
background. You come to the Court at age 29. You had an obviously dysfunctional
and unhappy background.      
 Between your mother and father there are 18 other
children. You were neglected as a small child, placed with your grandmother in
your
early childhood and when you returned to your mother at 13 you found your other
siblings being neglected in the way you had
been and you then used to care for them.
You were shifted around among family members, not knowing who your father was
until you
were 18. Your father was involved in the Mongrel Mob and you found
yourself being drawn into gang-related activities. You appear
not to have any family
support. You have had no family in court throughout the trial and no family here
today. You were unemployed
at the time of all of this happening and apart from a
short time in the army about ten years ago do not appear to have had any meaningful
work in your life.


[6]    It is plain from the pre-sentence report that you have drug and alcohol
problems. You lack the skills
that are needed to maintain and foster relationships
both with an adult partner and with children. Given your family background this
is
hardly surprising. It seems to me from the pre-sentence report and the statements
you made to the police that you really have
no insight into the effect that your
behaviour has on other people. You blame others and minimise your conduct. In a
family setting
you seem to have only one way of dealing with things that do not go
the way you want them to and that is to use violence.

[7] 
  Your counsel tells me that although you are remorseful it is very difficult for
you to adequately express yourself and she has
had great difficulty in getting you to
express yourself properly even over the year or so that she has been working with
you. I do
not doubt that you had genuine affection for Ms Boroevich and for her
children. But this lack of insight into your behaviour and
the lack of skills to change
your behaviour means that your relationship with her is non-existent anymore and
your relationship with
your children, which you will have to re-build one day, will
be seriously hampered by the attitudes that you currently have. You
are assessed as
being at low motivation to address your offending and high risk of re-offending.


[8]    I note also that you have
some 27 convictions dating back to 1996. However,
only one of those convictions is for violence. The others are relatively minor
and
appear not to have attracted any term of imprisonment until 2005.               In the
circumstances, while I take account of
that record, I do not intend to attach much
weight to it for sentencing on the present charges and I do take into account what
your
lawyer says about the effect of the death of your son Shinobi Law and allow for
the possibility that there were real difficulties
you were struggling with after that
event that might have contributed to this offending. In saying that though you will
find as I go on in sentencing today that I make no allowances for violence against
women and children, but I recognise the difficulties you were dealing with.


The present offending


[9]    I turn now to the circumstances
of the offending. You and Ms Boroevich had
a brief relationship several years ago.    In the intervening period she was in a
relationship
with another man and had her older two children, Jahlene and Stephanie.
You and she resumed your relationship in 2004. Within a short
time you had
Shaolin. You lived with members of Ms Boroevich's family until February 2007
when you moved into the address in Papakura.
When you moved into this address
you had three children, another child on the way, no proper beds. You were sleeping
on mattresses
on the floor. You did not even have a washing machine. One of the
more shocking aspects of the evidence related to the pitiful amount
of food in the
house when police came to investigate. Hopelessly inadequate in terms of sustaining

a mother with a new baby and
three children. It was plain that neither of you had the
skills to manage the responsibilities that you had.


[10]    In evidence
Ms Boroevich recounted a relationship in which you were
determined to be in control and, at least throughout 2007, she essentially
lived in
constant fear of you becoming angry over something or other. You controlled how
money was spent, what Ms Boroevich did,
where she went, how she behaved, you
were excessively jealous, you were violent in your efforts to discipline the chilren
and violent
towards Ms Boroevich when she did not behave as you expected her to.
Indeed, it was your own description of events at the Papakura
address in your police
interview that really brought alive the picture Ms Boroevich painted in her evidence.
The way you described
what happened between you and your partner and the
children showed a controlling, manipulative, self-centred and violent man. You
blamed others for what happened and regarded instances such as Ms Boroevich
forgetting things or spending money against your wishes
as justifying violence
against her.   You justified violence against the children by reference to their
behaviour. Even on your own
account you drank regularly, controlled the spending
of money that came into the household and controlled what Ms Boroevich would
do.    Sadly, this sort of behaviour is not unexpected given your background.
However what you have done is really continued to do
to your own partner and
children what was done to you as a child. I turn now to consider the specific charges
on what I am sentencing
today.


[11]    I begin with the offences committed against Ms Boroevich. The most serious
of these was wounding with intent to
injure, which related to an incident just a few
days after the baby Amethyst was born.                This incident was triggered
by
Ms Boroevich leaving the oven on to heat up the house without noticing that your
plastic game case had been left on top. This
angered you. You began to verbally
abuse her. Ms Boroevich was then lying on the floor breastfeeding Amethyst. You
punched her about
the face with a closed fist, punched her arms. In evidence
Ms Boroevich said you stomped on her, though you always denied that. The
verdict
does not indicate one way or the othere whether the jury accepted it. But even
without that particular piece of conduct your
behaviour was very serious offending.

Ms Boroevich described having both black eyes, nose bleeding, lip cut and swollen,
her arm
bruised.


[12]   This offending was a very serious physical attack on a vulnerable and
defenceless woman, lying as she was on the
floor with a new baby in her arms. It
was a sustained attack. You punched her repeatedly about the face and arms. The
attack took
place, not only in close proximity to the baby but also with Shaolin
present, visibly distressed at the violence.


[13]   In cases
that involve the infliction of serious violence sentencing Judges can
look for guidance to the Court of Appeal in the form of its decision in R v Taueki3,
although I
accept that Taueki involved the more serious offence of wounding with
intent to cause grievous bodily harm. I have also been referred
by the Crown and by
your lawyer to other cases involving domestic violence that provide some assistance
as to what an appropriate
starting point for sentencing would be4. Looking at the
range of sentences imposed in cases with similar features I consider that
a starting
point of four years is an appropriate one.


[14]   However, any sentence I impose on this charge must adequately reflect
the
other offending against Ms Boroevich, and against Jahlene and Stephanie, and taking
that offending into account it is clear to
me that I must increase that term. The other
offending is as follows. You pleaded guilty to a charge of male assaults female in
respect
of Ms Boroevich, this being a representative charge relating to minor assaults
such as punching and pushing. You were found guilty
on the representative charge
of assaulting Ms Boroevich with intent to injure her and it was clear from the
evidence that towards
the latter part of Ms Boroevich's pregnancy with Amethyst
you began to hit her regularly and struck violently. You punched her face
and arms.
Your neighbour described Ms Boroevich's black eyes, described noises of objects
and even a person being thrown around the
room next door. When Ms Boroevich
was 34 weeks pregnant she was seen by her midwife who noticed bruising to her arm
and a black eye.
It was apparent that there were many assaults over the time you

3
  [2005] 3 NZLR 372
4
 Wiringi v Police HC ROT CRI20008-643-73 13 October 2008 Keane J; Tenboom v Police HC HAM
CRI-2007-419-15 7 February 1007 Williams
J; R v Hawkins HC AKL119/02 18 November 2002
Ellen France J.

lived at that address and some of them were sufficiently serious to
leave bruising on
Ms Boroevich's face and arms.             This was serious and sustained offending,
aggravated by the fact that
Ms Boroevich was quite heavily pregnant during this
period and latterly had a newborn to care for.


[15]    In relation to Jahlene
you pleaded guilty to representative charges of assault
for slapping her and a representative charge of assault for pulling her hair.
You were
found guilty of assault with intent to injure for kicking her. In relation to Stephanie
you pleaded guilty on a representative
charge of assault for slapping her, one of
assault for twisting her ear, and were found guilty on a charge of assault with intent
to injure for kicking her. You had the responsibility and care for these children.
Although claiming to the police that you viewed
yourself as their father, the evidence
was plainly that you treated them harshly and differently to your own child, Shaolin.
These
children were very young and exposed not only to the violence against their
mother, but also to being physically abused, including
being kicked, by you. Your
behaviour represented a serious breach of trust in respect of those children and I
regard them as aggravating
factors5.


[16]    The impact of your offending is apparent from Ms Boroevich's victim impact
statement and, indeed, from some of
the factual evidence that was given.                   Ms
Boroevich was diagnosed as having post traumatic stress disorder by reason
of being
a battered woman. She was required at the end of this dreadful year to spend five
weeks in hospital with her new baby and
manage the ongoing medical care that the
little baby required on release from hospital. She initially lost the custody of all her
other children and as at today only has regained day-to-day care of Shaolin and
Amethyst. Her two older girls are still in care elsewhere,
though eventually it is
expected that they will return to their mother. Even when that happens all of these
victims, Ms Boroevich
and her children, have the marks of your violence indelibly
imprinted on them. It will carry with them for a very long time and possibly
forever
what they saw and what they felt when you screamed, kicked, hit, punched, slapped.
When you beat their mother the little
children saw that violence and it will stay with
them, no doubt as you have similar memories of your own.

5
 s 9A Sentencing Act
2002, inserted by the Sentencing (Offences Against Children) Amendment Act
2008

[17]   Looking at the totality of the offending
four years is clearly inadequate to
reflect the sustained abuse of a pregnant woman and young children. I increase the
term imposed
on the wounding with intent charge to five years to reflect the overall
offending. On the other charges I impose a term of one years
imprisonment in
respect of the charge male assaults female, two years imprisonment for the assault
with intent to injure Ms Boroevich.
In relation to the children I impose terms of six
months on each of the charges of assault and terms of one year on the charges of
assault with intent to injure. These terms will all be served concurrently with the
term imposed on the wounding with intent charge.
This means that the total term of
imprisonment on the violence charges will be five years.


Failing to provide the necessaries for
Amethyst


[18]   The final charge that I need to deal with is that of failing to provide the
necessaries in the form of medical
attention for Amethyst. The jury was clearly
uncertain as to what the cause of Amethyst's brain injuries were and you are not
being
sentenced on the basis of causing those injuries. But it was clear from the
evidence that by the morning of Thursday 23 August 2007,
when Amethyst was
nearly four weeks old, she started twitching, vomiting, having seizures.          These
seizures continued through the day and into the night
and into the following Friday,
becoming longer and more frequent. Yet it was not until Friday evening that you
finally acted in terms
of getting medical attention for your baby.


[19]   The medical evidence was that Amethyst's condition on that Friday night was
life threatening.   She was very lucky to live and even afterwards required
considerable medical care. It is clear that she has suffered
a permanent brain injury,
the full extent of which will not be known until she is at school. In your explanation
to the police as
to why you did nothing for two days you essentially tried to pass the
blame to Ms Boroevich on the basis that it was she who knew
about babies and she
who should have taken the baby to the doctor. I do not accept that. You had equal
responsibility for your baby
who you professed to love so much in your police
interview. It was your responsibility and it is a responsibility that could not
easily be
shed. In the context of the relationship and the way your household functioned you

had as much responsibility for your
baby's care as Ms Boroevich and indeed that the
way the household was controlled by you, it was you who had the say as to when
and
whether she would take the baby to the doctor. To leave a four week old baby
for so long when she was quite plainly very ill is a
very serious matter. It may not be
the worst case of its kind to come before the court but it is a very serious one
nevertheless.


[20]   The facts that can give rise to a charge of failing to provide the necessaries
vary widely and the cases involving sentencing
on this charge reflect that fact. There
is, however, assistance to be gained from some of those cases, sometimes by way of
comparison6.
Having considered sentences imposed in other cases in comparison
with the circumstances of this case I consider that a term of three
years is
appropriate.


[21]   This sentence is to be served cumulatively on top of the other sentence
imposed. This would bring
the total term of imprisonment to eight years and I need
to consider whether that length of term is disproportionate to the overall
offending. I
have already identified the various aggravating features. In a general sense I have
been sentencing on the basis of
sustained violence, both minor and serious, against a
pregnant woman and her young children, and on failing to provide the necessaries
in
the form of medical attention for a desperately ill baby whose symptoms wer quite
obvious. I consider that eight years does reflect
fairly the totality of the offending.


[22]   Whilst I have sympathy for the forces that you no doubt struggle with from
your childhood
there can be no sign from this Court that violence against women or
children can be acceptable in any circumstances.


[23]    The
Crown, in addition to the sentences that I have imposed, seeks to have
me impose a minimum non-parole period, which is permitted
if I am satisfied that
would otherwise be served would be insufficient to hold you accountable for the
harm done, denounce your conduct
and deter you from committing other offences of
a similar kind. In this case I accept that there is a need for a minimum term of

imprisonment in relation to the violence charges to properly achieve the objectives I
have referred to. I therefore impose a minimum
non-parole period of three years in
respect of the violence charges.


[24]   I have two other final comments to make. The first
relates to the fact that on
two of the occasions that Ms Boroevich was seen by a midwife she had a black eye.
The midwife noticed
this and did nothing and said nothing. When asked in evidence
why she did not notify anyone she answered that she did not know whom
she could
notify. I direct that these sentencing notes be sent to the College of Midwives, not
for any disciplinary reason, but for
consideration and discussion as to what midwives
can and should do when they see evidence of domestic violence. The answer cannot
surely be that they do nothing.


[25] 
 Secondly, I direct that you be offered help in terms of overcoming the
psychological problems of your past that have contributed
to this offending and to
deal with your alcohol and drug problems. I urge you to take up such help. I am
certain that if you do not
use your time in prison to deal with these problems you will
never overcome them and you will never have a sound relationship with
your
children.




                                                             ____________________


                         
                                   P Courtney J




6
 R v Williams HC WGN CRI-2004-078-001816 24 February 2006 Miller J; R v Haddock
HC ROT
CRI-2005-077-000461 6 December 2007 Heath J; R v Ash v Hirchkop DC Manukau CRI-03-057-
1570 25 November 2005