Irving v The King
[2024] NZCA 341
•25 July 2024 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA298/2023 [2024] NZCA 341 |
| BETWEEN | JONIERO JOE IRVING |
| AND | THE KING |
| Hearing: | 25 September 2023 |
Court: | Cooper P, Palmer and Jagose JJ |
Counsel: | C B Wilkinson-Smith for Appellant |
Judgment: | 25 July 2024 at 11.00 am |
JUDGMENT OF THE COURT
The appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooper P)
Joniero Irving appeals his conviction for manslaughter. He claims the jury’s verdict was unreasonable and not supported by the evidence and that the trial Judge, Brewer J, misdirected the jury on the elements of manslaughter as applied to the facts of the case. This, Mr Irving says, gives rise to a miscarriage of justice. Mr Irving also appeals his sentence of four years and eight months’ imprisonment.[1]
The relevant facts
[1]R v Irving [2023] NZHC 946 [sentencing notes].
Mr Irving was charged on the basis of unusual facts. On the evening of 6 October 2019 he was at a bar in the Viaduct Harbour in Auckland with two friends, Jack Pure and Nathaniel Ngaata. For some time they sat and drank together with another of Mr Irving’s associates until in the early hours of 7 October the victim, James Jenkins, arrived at the bar with his partner. The evidence was that Mr Jenkins had been consuming alcohol, methamphetamine and cocaine.
At about 3.30 am there was a brief conversation between Mr Jenkins, Mr Irving and Mr Irving’s associates. In sentencing Mr Irving, the Judge recorded that Mr Irving had “never given any sort of account as to what happened during that conversation or what it was that motivated [him] in [his] later actions.”[2] The Judge was however satisfied that there was “some sort of history” between Mr Irving and Mr Jenkins which made the latter wary. The Judge was satisfied that Mr Jenkins thought Mr Irving might try to make him hand over jewellery he was wearing. Out of sight of Mr Irving, Mr Jenkins had removed his Rolex watch and heavy gold necklace and placed them in his partner’s handbag, although he continued to wear two gold rings each of which contained a gold sovereign coin.[3]
[2]At [4].
[3]At [4].
At about 4 am Mr Jenkins and his partner left the bar. Mr Irving saw them outside and some sort of interaction then took place as a result of which Mr Jenkins ran off, Mr Irving in pursuit. Mr Irving was demanding jewellery be handed over and Mr Jenkins decided to dive into the adjacent Waitematā Harbour. The temperature of the water in the harbour at this time was between 14.25 and 14.4°C. The Judge said that the evidence at trial showed that Mr Irving, who was accompanied by Mr Pure, “stalked and shadowed” Mr Jenkins from the land.[4]
[4]At [5].
Mr Jenkins swam approximately 100 m towards a nearby ferry. A ferry company employee working on the ferry, Akiko Iizuka, heard Mr Jenkins calling for help and told him to swim toward the ladder which gave access to a pier beside the ferry. Mr Jenkins climbed part way up the ladder and remained there for some time. Mr Irving had been watching Mr Jenkins and at this stage two security guards overheard Mr Irving making threats. These threats included Mr Irving saying things along the lines of “I’m going to fucking smash you, I want to fucking kill you”. Mr Jenkins climbed up the ladder and got on to the ferry. When Mr Irving attempted to board the ferry he was stopped by Ms Iizuka.
Mr Irving continued to threaten Mr Jenkins from the pier, demanding that he hand over his gold rings. Mr Jenkins did so. At that point Mr Irving demanded the gold necklace. Mr Jenkins yelled to Mr Irving that he had given the other items of jewellery to his partner. Mr Jenkins then tried to escape from the pier, but Mr Irving prevented him from doing so while continuing to make demands and threats. After Mr Irving made as if to climb onto the ferry, Mr Jenkins jumped back into the harbour. He swam towards the bow of the ferry. Mr Irving watched him for a period of about a minute before leaving. After leaving, Mr Irving had no further involvement.
In the following 12 minutes, Mr Jenkins was observed by members of the public who informed him that his pursuer had left and that he could safely come out of the water. He was able to swim about 30 m to the front of the ferry, and then swam to the stern of the boat where he took hold of a pole sticking out of the pier, holding onto it for about five minutes. As the Judge put it at sentencing, Mr Jenkins weakened in the water, and did not respond to efforts to help him.[5] Ropes and a life ring had been thrown and were within reaching distance, but he did not respond. He sank below the surface, briefly vomited underwater and did not resurface. He drowned. On the Crown’s case that was approximately 34 minutes after he first entered the water, and 12 minutes after he re‑entered it. He had spent approximately 27 minutes in the water by that point. His body was found a week later.
[5]At [8].
The Crown charged Mr Irving with killing Mr Jenkins by causing him by threats or fear of violence to do any act which caused his death, said to constitute manslaughter under s 160(2)(d) of the Crimes Act 1961.
Expert medical evidence
The issues on the conviction appeal must be assessed in the context of expert medical evidence called by the Crown from Dr Paul Morrow, a pathologist with qualifications from three tertiary institutions in the United States. Dr Morrow had been employed as a deputy chief medical examiner and then chief medical examiner for the state of Vermont for a total period of 22 years. He subsequently moved to Australia and qualified as a forensic pathologist, practising for two years in Sydney at the Department of Forensic Medicine in Glebe, before coming to New Zealand in 2009 to practice as a specialist forensic pathologist.
Dr Morrow conducted a post‑mortem examination of Mr Jenkins on 15 October 2019. By this point, Mr Jenkins’ body was in a decomposed state, but Dr Morrow was able to find clear evidence that established drowning was the cause of death. There was blood and fluid in the lungs and some aspirated foreign debris, both characteristic of drowning. He found no evidence of any other disease, trauma or internal injuries that could have accounted for Mr Jenkins’ death.
While Dr Morrow concluded that the primary cause of death was drowning, subsequent toxicology established the presence of alcohol, methamphetamine and cocaine in Mr Jenkins’ system. Dr Morrow thought these could possibly have played a contributory role in the drowning. He also considered that, having regard to the temperature of the water and the time that Mr Jenkins had spent in it, he would have begun to feel some of the effects of hypothermia, although not enough to account for unconsciousness. Given the water temperature, unconsciousness and exhaustion would occur in one or two hours.
In cross‑examination Dr Morrow conceded that the levels of methamphetamine and cocaine which he calculated would have been present in Mr Jenkins’ body on the night he died could each have independently caused his death. Cumulatively they would have had a compounding effect. He accepted that it was possible Mr Jenkins suffered a cardiac event while in the water. If he had done so, he would have drowned. But the post‑mortem examination could not conclusively determine whether a cardiac arrhythmia had occurred. He also conceded in cross‑examination that Mr Jenkins’ unresponsiveness to the rescue attempts that were made might have been attributable to his level of intoxication from the use of drugs, although he clarified in re‑examination that methamphetamine and cocaine tend to cause hyper‑awareness.
He was also asked in re‑examination to clarify his evidence about the effect of the drugs Mr Jenkins had taken and the effect of his being in deep water. He said:
The presence of being in the water has, if you will two complicating factors. One is the fact that the water is cold and it’s in a level where rescue literature would suggest that this is a level where you can begin to have the effects of hypothermia, so that just the fact that he’s in this cold water would suggest that there may be some effect. The drugs would have an additional additive effect on top of that and the fact that he’s in deep water, if he passes out, or loses consciousness because of the drugs but not necessarily have a fatal arrythmia he’s going to go under the water and drown. So to some extent the issue of the heart attack and the drugs sort of goes to the mechanism of death. The fact that he’s in a potential lethal environment in namely water, deep water, puts that as the primary cause of death. If [he] has a heart attack and just passes out he might’ve recovered except that because he loses consciousness he goes under water and, if you will, he’s in a lethal environment, he’s going to drown. So I would put, I would put the drugs in the category of contributory causes but not primary cause. The primary cause is he’s in a potentially lethal environment, namely cold water over his head.
The defence did not call evidence.
The conviction appeal
The first ground of the conviction appeal was that the jury could not have excluded the reasonable possibility that Mr Jenkins passed out as a result of a drug‑induced heart arrhythmia. Mr Wilkinson‑Smith submitted that would be an intervening cause which would break the chain of causation: Mr Irving’s actions would no longer be a substantial and operating cause of death, rather they would be part of the background events. Mr Wilkinson‑Smith relied on Dr Morrow’s evidence that Mr Jenkins had consumed sufficient quantities of methamphetamine and cocaine, that both drugs could cause heart arrhythmia and Dr Morrow’s concession that, if Mr Jenkins had suffered a cardiac event whilst in the water, he would have drowned.
Mr Wilkinson‑Smith maintained the plausibility of this explanation was boosted by the absence of any alternative explanation, given that the water temperature was not freezing, and the period of time Mr Jenkins had spent in the water was “relatively brief”, being less than the one to two hours Dr Morrow had referred to as leading to unconsciousness.
To these propositions, Mr Lillico offered the simple rejoinder that on the basis of Dr Morrow’s evidence it was open to the jury to conclude that even if Mr Jenkins had suffered cardiac arrest, the primary reason for his death was being in the water when the event occurred.
The second ground of appeal Mr Wilkinson‑Smith advanced was that, given the evidence of eyewitnesses and Dr Morrow, the Judge’s directions on causation were inadequate and unfavourable to Mr Irving. He referred in particular to questions three and four in the question trial which the Judge provided for the jury and the oral directions relevant to those questions. Mr Lillico submitted there was no identifiable error in the Judge’s directions because the directions were consistent with authority.
The document provided to the jury contained four questions, as follows:
1.Are you sure that Mr Irving caused Mr Jenkins to fear violence?
If your answer is “yes”, go to question 2.
If your answer is “no”, find Mr Irving “not guilty”.
2.Are you sure that the fear of violence contributed, in a not insignificant way, to Mr Jenkins jumping from the ferry into the harbour?
If your answer is “yes”, go to question 3.
If your answer is “no”, find Mr Irving “not guilty”.
3.Are you sure that a reasonable and responsible person in Mr Irving’s
position could reasonably foresee a person in Mr Jenkins’s circumstances jumping off the ferry into the harbour?
If your answer is “yes”, go to question 4.
If your answer is “no”, find Mr Irving “not guilty”.
4.Are you sure that jumping off the ferry into the harbour contributed, in a not insignificant way, to Mr Jenkins’s death?
If your answer is “yes”, find Mr Irving “guilty”.
If your answer is “no”, find Mr Irving “not guilty”.
In his summing up, the Judge gave some general directions in relation to manslaughter:
[35] Now, most cases of manslaughter involve a criminal act of violence. An all too common example is a street fight where a person suddenly punches another person in the head. And the person punched topples over, strikes his head on the curb and dies from the resulting head injury. That is manslaughter. The person punching had no idea that the punch would cause the victim’s death. But it did. So, it is manslaughter. An unlawful killing but without the intent necessary for murder.
[36] And, the unlawful act or acts which cause death do not have to be actual violence. Threats to kill, threats to cause bodily harm — they are criminal acts. And if, through fear of violence, a victim acts in a way that causes their own death, then that can also be manslaughter so long as the response of the victim to the fear induced by the threats was reasonably foreseeable. Mr Irving’s case is alleged by the Crown to fall into this category.
He followed this by giving the jury examples of manslaughter as arising from acts which cause death not involving actual violence. The Judge then turned to the question trail. After addressing the first two questions, the Judge turned to question three. He said:
[56] This question focuses on the response of Mr Jenkins to Mr Irving’s actions. He jumped into the harbour. For Mr Irving to be blamed for that it has to be the kind of reaction that could reasonably have been foreseen by a reasonable and responsible person in Mr Irving’s position.
[57] Now, this is important, and indeed it is the key to this question. The question is not “what did Mr Irving foresee?” It is what a reasonable and responsible person in Mr Irving’s position could reasonably foresee. It is for you, the jury, to decide what that would be. I say again — it is not what Mr Irving actually foresaw. So, your job is to assess Mr Irving’s position. Go over the evidence of the events that night — what was done; what was said; what Mr Irving saw and knew — and then stand in his shoes and ask yourselves, “Given that this was Mr Irving’s position, would a reasonable and responsible person reasonably foresee that a person in Mr Jenkins’s circumstances would jump off the ferry into the harbour?”
[58] “Reasonably foresee” does not mean predicting with certainty that he would jump. Or that it was inevitable he would jump. For Mr Irving to be excused at this step you would have to find that a reasonable and responsible person in Mr Irving’s position would find that jumping into the harbour was so disproportionate to Mr Jenkins’s conduct as to be irrational and beyond the contemplation of the reasonable and responsible person standing in Mr Irving’s shoes.
[59] So, again, both lawyers say stand back and look at the evidence as a whole — work out what Mr Irving had experienced, what he knew to be the case just before Mr Jenkins jumped into the harbour, all of the events leading up — stand in his shoes and decide what a reasonable and responsible person in Mr Irving's position could reasonably foresee a person in Mr Jenkins’s circumstances doing. Was jumping off the ferry surprising under those circumstances?
[60] You will also have to take into account Mr Jenkins’s circumstances. [Defence counsel] says to you Mr Irving didn’t know about Mr Jenkins’s state of intoxication so that couldn’t factor into a foreseeability issue. If he hadn’t been intoxicated, he might not have jumped.
[61] The reality is that it is not a “might not have” situation. Really, you have to look at what Mr Jenkins did against the events of the night and what Mr Irving knew and say, “Under those circumstances, was jumping into the harbour so disproportionate to Mr Jenkins’s conduct that it was irrational and beyond what a reasonable and responsible person would contemplate Mr Jenkins doing if they were standing in Mr Irving’s shoes?”
The Judge then turned to question four, noting that he understood from the closing address of counsel for Mr Irving (Mr Lack) that the question was the focus of the defence case. The Judge instructed the jury as follows:
[63] The law is that if a defendant, having caused fear of violence in a victim, and that as a result the victim acted in a reasonably foreseeable way, then the defendant will be guilty of the manslaughter of the victim if the victim’s act contributed in a not insignificant way to the victim’s death. So, again, the focus is on what the victim did.
[64] If you get to this point, you will have answered “yes” to questions 1, 2 and 3. For question 4, you have Mr Jenkins in the harbour. The uncontested evidence is that he died by drowning. And, putting it simply, a “but for” test applies. But for the actions of Mr Irving, would Mr Jenkins have died? That is putting it at its simplest. But for the actions of Mr Irving, would Mr Jenkins have died? If jumping in the harbour contributed in a not insignificant way to Mr Jenkins’s death, and but for the actions of Mr Irving he would not have been in the harbour, Mr Irving is responsible for Mr Jenkins’s death, even though by the time of the death he had left the harbour area.
[65] Now, here the Crown case is simply that Mr Jenkins died by drowning and he only died by drowning because he was in the harbour. If he hadn’t been in the harbour he would not have died by drowning. It is as simple as that.
[66] Mr Lack says it is not as simple as that. You have to look at what happened in the 13 minutes or so when Mr Jenkins was in the water. And he says Mr Jenkins was initially able to swim quite capably. Having jumped in the water, he swam the 30 or so metres to the bow of the ferry where he clung onto some part of the bow of the ferry and was seen there. He was shouted at to the effect that Mr Irving had left, gone. He made no response to that. But he was being called on to come back to the stern of the vessel, and he did. He swam the 30 or so metres back and he appeared to be able to do that well enough, and he then clung to a pole for about five minutes and didn’t seem to be in significant distress. The bystanders got a rope and they got a life ring; he let go of the pole he was clinging to and was unresponsive; and he didn’t save himself by grabbing for the rope or the life ring and he died by drowning.
[67] But Mr Lack says he had ingested all of those drugs. They were obviously affecting his behaviour, his ability to think. He didn’t have hypothermia but he was beginning to feel the effects of it and that contributed. And there is the evidence of Dr Morrow about how drugs of the level that had been ingested by Mr Jenkins could have affected his heart, and he might have had a fatal heart attack which caused him to sink beneath the water and he drowned.
[68] Mr Lack submits that if you take all that into account, what he called the chain of causation was broken. Mr Irving, having left the scene, and there is a reasonable possibility that Mr Jenkins knew that Mr Irving had left the scene because that was something that was shouted out to him, that that breaks the chain of causation; that the fear that caused Mr Jenkins to throw himself into the harbour was no longer present; there was no operative link between Mr Irving’s behaviour and Mr Jenkins being in the harbour. And, so, on that basis Mr Irving, granted that this is a tragic situation and that Mr Irving acted badly and even criminally, but he cannot be held responsible for the death by drowning of Mr Jenkins. That was the submission Mr Lack made to you.
[69] Mr Lack is correct when he submits that there can be a break in the chain of causation. If Mr Jenkins’s death was not contributed to in a real or significant way by Mr Irving’s actions then Mr Irving is not responsible for Mr Jenkins’s death. In this case, that would require Mr Jenkins’s presence in the harbour to be no longer as a result of Mr Irving’s actions. It would require the causative result of Mr Irving’s actions to be over. Let me illustrate it by taking some extreme examples which are well outside the evidence, but just to make the point.
[70] If Mr Jenkins, knowing that he was no longer under threat by Mr Irving and for unrelated reasons, decided to commit suicide by drowning, that would not be Mr Irving’s responsibility. The chain of causation would be broken because although Mr Jenkins was still in the harbour and susceptible to drowning, that was his decision. He knew that he was no longer under threat from Mr Irving but he decided to stay in the harbour anyway, in this case for the purpose of committing suicide, and he drowned.
[71] If Mr Jenkins knowing that he was no longer under threat by Mr Irving simply decided he was enjoying being in the water, decided to stay for a swim but got into trouble because of hypothermia or because he was intoxicated or both and he drowned, that could not be Mr Irving’s responsibility because the effect of the fear that he had induced which caused Mr Jenkins to go into the harbour was spent, it was over; it was a new situation now.
[72] But if having jumped in the harbour because of Mr Irving’s actions, as a reasonably foreseeable reaction to Mr Irving’s actions, Mr Jenkins became disoriented, fatigued or disabled by his consumption of drugs and alcohol, with the result that he drowned, then you would have to consider whether Mr Jenkins jumping into the harbour contributed in a not insignificant way to Mr Jenkins’s death. The same is true about heart arrythmia caused by the ingestion of drugs.
[73] If the fear induced by Mr Irving was the cause of Mr Jenkins being in the harbour and that contributed in a not insignificant way to Mr Jenkins’s death, then the chain of causation is not broken. Of course, I am discussing this because it is the last question and, as I have said, you only get to that question if you had answered “yes” to questions 1, 2 and 3.
[74] The Crown’s case, of course, is simply that there was no break in the chain of causation; that Mr Irving’s actions were still operative at the time that Mr Jenkins drowned.
Mr Wilkinson‑Smith argued that question three unduly narrowed the period over which it was necessary that Mr Jenkins’ actions be assessed as reasonably foreseeable. He submitted the Judge should not have restricted the instruction to consideration of the single action of jumping off the boat in response to the threatened violence. He argued the jury should have been told to consider the foreseeability of the fact that Mr Jenkins had stayed in the water for 12 minutes after Mr Irving left the scene. He based his argument on this Court’s decision in Perryv R.[6]
[6]Perryv R [2018] NZCA 595.
Mr Wilkinson‑Smith noted that during its deliberations the jury asked to be given a transcript of “the defence’s explanation of the chain of causation in their summing‑up remarks”. The Judge answered this question in the negative. The jury then sought a copy of the transcript of the Judge’s summing up in relation to question four, which the Judge also declined, but he repeated in full the part of his summing up that related to the question. Mr Wilkinson‑Smith noted that the jury returned its verdict approximately 30 minutes after the Judge had repeated this direction. He claimed that the jury would have discussed the Judge’s further directions and almost immediately reached a verdict. We do not think there is any significance in the timing point. The fact that the jury sought further guidance on the answer to question four might be thought to indicate that they wanted to ensure they understood the Judge’s directions on a significant question, in other words that they were approaching their task conscientiously. Nothing turns on the timing.
The events in Perry took place in the early hours of the very cold winter’s morning. Three men attempted to intimidate and rob a drug dealer who wished to sell a small amount of methamphetamine so as to fund his habit. The victim saw what was about to happen and ran away.[7] The three men pursued him and the victim hid in a nearby stream. He emerged from the stream when a nearby security light was activated.[8] The three men surrounded him and one lay on top of him holding a machete to his throat. They demanded he hand over his drugs and when he denied that he possessed any, one of the men punched him on the head with a closed fist causing him to fall back into the stream. Another of the men suggested that they should put him in the back of a truck and take him for a “boot ride”.[9] The victim again ran away and arrived at a shallow flood protection area, or levee. One of the men later told the police that the victim appeared to be running for his life and told another witness that the last moments of the victim’s life would have been “sheer terror”.[10]
[7]At [6]–[10].
[8]At [11].
[9]At [12].
[10]At [13].
One of the pursuing men realised that the victim had entered the levee area but abandoned his attempt to find him because his shoes began to fill with water. After about 15 minutes the group abandoned the search. The victim’s body was found about 36 hours later, on his back in the levee. Although his nose and mouth were above the waterline, it was established that he died as a result of drowning.[11]
[11]At [14]–[16].
The three men who had pursued the victim were charged with manslaughter by causing the victim “by threats or fear of violence to do an act namely run and/or hide which caused his death”. Prior to the trial, one of the defendants, Mr Te Tomo, sought amendment of the charge on the basis that causing the victim to run could not have caused his death and that only the act of hiding could have had that consequence. The Judge refused to amend the charge because the Crown was advancing running and hiding as a combination of acts. The Judge dealt with the case in that way in summing up.[12] The Judge also directed the jury that they needed to determine that the victim’s attempt to flee and hide was a natural consequence of Mr Te Tomo’s actions in the sense that they were of a kind that could reasonably have been foreseen by reasonable and responsible people in the shoes of Mr Te Tomo when he confronted the victim.[13]
[12]At [47].
[13]At [48].
On appeal, this Court was critical of the imprecise nature of the charge with its combined reference to running and hiding, but nevertheless held the imprecision had not resulted in a misdirection because the Judge had in effect told the jury to consider the two elements in combination.[14] This meant that the jury’s focus was, as appropriate, on the act of the deceased that was said to have resulted from the defendant’s acts and to have caused his death. In directing the jury that this action needed to be a natural consequence of the defendant’s acts, this Court held the Judge had correctly applied the approach taken by the Court in R v Tomars.[15]
[14]At [53]–[54].
[15]At [54], citing R v Tomars [1978] 2 NZLR 505 (CA) at 511.
This conclusion amounted to a rejection of an argument advanced on appeal that the jury had not been asked to consider whether hiding in the way in which the victim had was a reasonably foreseeable consequence of Mr Te Tomo’s actions. Counsel had submitted that the victim’s actions were most unusual:[16]
Deciding to hide in a shallow body of water in an exposed field, on a freezing May night, is strikingly unusual, irrational and dangerous, even for someone fearful of violence. All the more so when [the victim] knew there was a timber yard and buildings in the near vicinity, all of which were much more favourable locations in which to hide.
The Court however approached the issue on the basis that the relevant question was whether Mr Te Tomo’s actions had caused the victim to hide in the levee.
[16]Perry v R, above n 6, at [51].
There was also an issue in Perry about causation of death. The trial Judge directed that the Crown had to prove the conduct of at least one of the three men threatening the victim was a substantial and operative cause — or not insignificant cause — of his death; it did not matter that other causes such as the victim’s negligence, poor judgement or use of methamphetamine may have contributed to his reaction in entering the levee.[17] On appeal, counsel for Mr Te Tomo submitted that a possible conclusion on the facts was that the victim’s actions were so unusual as to break the chain of causation before death occurred. This was an issue that should have resulted in specific directions to the jury about the importance of the consideration, and the relevant test for assessing causal liability.[18]
[17]At [56].
[18]At [57].
In dealing with this issue, this Court said:[19]
[62] On the approach taken in R v Tomars, considerations of proportionality and reasonableness of response by the deceased (of the kind mooted in R v Williams) are wholly encompassed within step three — that is, the test of reasonable foreseeability. We think this approach remains correct in principle. The foreseeability focus, as we have said already, is on the response of the deceased. It must be the kind of reaction that could reasonably have been foreseen by a reasonable and responsible person in the defendant’s position. A response so disproportionate to the defendant’s act as to be irrational and beyond the contemplation of a reasonable and responsible person standing in his shoes, will excuse the defendant at step three.
[63] On this approach, however, we see no need to engraft a further jury direction as to proportionality in the context of causation. If the kind of reaction by the deceased would reasonably have been contemplated, and is a not insignificant cause of death, no further enquiry is needed. No policy consideration necessitates further complicating the jury’s analysis.
[19]Referring to R v Tomars, above n 15, and to R v Williams [1992] 1 WLR 380 (Crim App) (footnote omitted).
It is also relevant to note that the Court in Perry also rejected an argument that once those who had been looking for the victim left the area, the victim was as a matter of fact safe from further assault. Defence counsel put to the jury that at that point the threats under which the victim had been operating ceased to have operative effect. This Court said:[20]
[79] … The relevant inquiry is whether the act of hiding in the levee (assumed, because of earlier jury answers, to be a natural consequence of the unlawful acts) caused death, not whether the threats ceased to have operative effect. As R v Tomars makes clear, the immediate threat may have passed, but if the unlawful acts have caused, or still cause, a foreseeable response that causes death, the defendant is not excused from responsibility. ...
[20]Perry v R, above n 6, referring to R v Tomars, above n 15.
The present appeal does not call for any different approach to that followed in Perry, and Mr Wilkinson‑Smith did not argue to the contrary. It is clear that the jury was entitled to conclude on the facts that Mr Jenkins had entered the water as a direct result of the fear induced in him by Mr Irving’s conduct. There was nothing illogical or unreasonable about his conduct in doing so. That he would do so on the second occasion (leaving the ferry) was clearly foreseeable, having regard to his decision to do so on the first occasion and Mr Irving’s threatening behaviour. It was also foreseeable that Mr Jenkins would stay there for some time having regard to Mr Irving’s persistent and threatening conduct up until the time that he left the area. His lack of response to efforts to assist him may have had a number of causes, but none would appropriately be regarded as relieving Mr Irving of his responsibility for causing Mr Jenkins to enter the water and remain there. Mr Irving’s conduct remained an operative and not insignificant cause of Mr Jenkins’ death by drowning.
The jury was entitled to accept the evidence of Dr Morrow that drowning was the cause of death, and there was no evidence to the contrary. Dr Morrow said that other issues that may have arisen (such as a cardiac event or effects of the consumption of drugs) did not displace the fact that Mr Jenkins drowned. Since Mr Jenkins entered the water and remained there as a result of Mr Irving’s actions, Mr Irving was responsible for his death.
We see no error in the Judge’s summing up. His comprehensive directions in relation to questions three and four were entirely consistent with Perry and did all that was required to direct the jury properly on the legal and factual issues that arose. For these reasons, we will dismiss the conviction appeal.
The sentence appeal
At sentencing, the Judge adopted a starting point of five years and six months’ imprisonment.[21] In doing so he identified five aggravating elements of the offending. These were:[22]
(a)the threats and pursuit of Mr Jenkins had caused significant fear, causing him twice to seek safety in the harbour, an inherently dangerous environment.
(b)There was more than one threat of death and Mr Jenkins was pursued over a prolonged period.
(c)The fear induced in Mr Jenkins was the sole cause of his response.
(d)Mr Jenkins’ response to Mr Irving’s threats was reasonably foreseeable.
(e)The offending was the substantial cause of Mr Jenkins’ death.
[21]Sentencing notes, above n 1, at [15].
[22]At [13].
The Judge also noted that in the course of the offending Mr Irving had extorted two rings from Mr Jenkins and continued to threaten him in an endeavour to obtain further property. This financial motive was a “further significant aggravating feature”.[23]
[23]At [14].
Mr Irving had a criminal history relating to burglary and wilful damage, but that was in a very different category to this type of offending. While no discount for previous good character was possible, the Judge did not increase the starting point because of the previous offending.[24]
[24]At [17].
The Judge declined to give a discount because of Mr Irving’s age: 23 years and seven months at the time of the offending. He reasoned that the offending did not have the hallmarks of impulsivity and risk‑taking associated with some offending by young people. Rather, Mr Irving’s conduct was deliberate.[25]
[25]At [18]–[20].
The Judge had regard to a report that had been provided under s 27 of the Sentencing Act 2000.[26] He recorded that Mr Irving had been physically disciplined and abused by his father who had suffered from substance abuse, and anger management issues. Mr Irving was effectively brought up to believe that violence was an appropriate and acceptable way to treat others. Mr Irving had been exposed to gangs from a young age, suffered from learning difficulties and was expelled from school because of violent acts. His methamphetamine use developed during his teenage years and by age 17 Mr Irving was using a gram a week. His addiction was funded through burglary and theft.[27]
[26]At [21].
[27]At [24].
However, the motivation behind Mr Irving’s pursuit of Mr Jenkins was clearly financial, and there was no evidence that it was driven by drug addiction. The Judge nevertheless allowed a deduction of 15 per cent for the circumstances which characterised Mr Irving’s upbringing.[28] He declined to allow any discount for remorse, noting that the rings taken from Mr Irving had not been returned.[29]
[28]At [26].
[29]At [27].
The result was a sentence of four years and eight months’ imprisonment.[30]
[30]At [29].
Mr Wilkinson‑Smith noted that the Judge’s starting point of five years and six months’ imprisonment was higher than that sought by the Crown at sentencing of “up to 5 years”. The aggravating factors identified by the Judge were largely overlapping with the elements of the offence of manslaughter. In particular, the reliance on the fear induced by Mr Irving being the sole cause of Mr Jenkins’ response downplayed the significance of the role of the alcohol, methamphetamine and cocaine that Mr Jenkins had consumed. Dr Morrow had acknowledged those as contributory factors to Mr Jenkins’ drowning.
Mr Wilkinson‑Smith submitted the starting point was high in comparison with that adopted in other cases involving manslaughter where the victim has died as a result of responding to fear induced by the defendant, referring to R v Teo, R v Liev, and R v Te Tomo.[31] He argued in particular that the starting point in the present case should have been significantly lower than the four years and nine months’ imprisonment adopted for Mr Te Tomo, one of the offenders in Perry.[32]
[31]R v Teo [2023] NZHC 700; R v Liev [2017] NZHC 2253; aff’d Liev v R [2019] NZCA 242; and R v Te Tomo [2017] NZHC 1628.
[32]R v Te Tomo, above n 31, at [26].
Mr Wilkinson‑Smith submitted that a starting point of four years would have been appropriate here on the basis that the offending Mr Te Tomo (and others in Perry) engaged in was more serious. It involved actual violence, the use of a machete, multiple offenders and a longer relevant time period which included planning and lying in wait.
Mr Wilkinson‑Smith also submitted that there should have been an explicit discount for youth, and questioned the Judge’s conclusion that the offending was deliberate and persistent, as opposed to being of an impulsive nature. He contended that the offending could be viewed as a “rapid loss of temper and anger which was stoked by [Mr Jenkins] fleeing and refusing to be caught.” The anger and frustration included the threats Mr Irving made and apparent disregard for the fact he was in full view of members of the public and ferry staff. The whole interaction between Mr Irving and Mr Jenkins had lasted little more than 30 minutes; the argument outside the bar occurred at 3.45 am and Mr Irving had left the scene by 4.33 am. Mr Wilkinson‑Smith claimed that the whole incident was attributable to an angry response which did not subside over a 45‑minute period.
Mr Wilkinson‑Smith also claimed that the Judge should have allowed a greater discount for factors relating to Mr Irving’s upbringing. He suggested that an allowance of 40 per cent would have been appropriate especially since no express discount for youth was given. He also contended that an allowance for remorse could have been made and overall, the 15 per cent discount which the Judge allowed was insufficient.
Four offenders were sentenced for the offending in Perry. Mr Marshall carried the machete and held it to the victim’s throat. He also punched the victim, causing him to fall into the stream. Mr Marshall pleaded guilty to manslaughter prior to trial and at sentencing Gendall J adopted a starting point of five years’ imprisonment.[33] Mr Te Tomo threatened to put the victim in the vehicle for a “boot ride”. It was Mr Te Tomo and Mr Perry who searched for the victim after he made his escape, leaving Mr Marshall with the vehicle. The trial Judge, Nation J, adopted starting points of four years and nine months’ imprisonment for Mr Te Tomo[34] and four years and six months’ imprisonment for Mr Perry.[35] The Judge took a starting point of four years’ imprisonment in respect of the remaining offender, Ms Lucas, who had been involved in bringing the victim to the scene where he could be intimidated and robbed, on the pretence of doing a deal with him.[36]
[33]R v Marshall [2015] NZHC 2016 at [41].
[34]R v Te Tomo, above n 31, at [26].
[35]R v Lucas [2017] NZHC 651 at [50].
[36]At [50].
In sentencing Mr Irving, Brewer J was aware of the sentences imposed for the Perry offending because he referred to them, as well as to the other cases Mr Wilkinson‑Smith relied on. Yet he took a higher starting point because of his perception of the gravity of the offending. In essence, he was clearly influenced in doing so by the fact that Mr Irving’s conduct made Mr Jenkins so fearful that he twice entered the harbour in the early hours of the morning. As well as the prolonged pursuit, Mr Irving had repeatedly threatened to kill Mr Jenkins. At least one of those threats was immediately prior to Mr Jenkins entering the water for the second time. The threats to kill were not a feature of the facts of the comparator cases relied on by Mr Wilkinson‑Smith and we do not think the Judge erred by regarding them as significant for sentencing purposes.
We do not accept the argument advanced by Mr Wilkinson‑Smith that the risks inherent in entry to the harbour were less significant than in the cases he referred to with lower starting points. As far as the Perry offending is concerned, as this Court noted the victim’s death by drowning was a “somewhat perplexing outcome given the shallow water level and the fact that [the victim’s] nose and mouth were clear of the water when his body was found.”[37] In our view the Waitematā Harbour was an inherently risky environment attended by much higher risks than the levee in Perry.
[37]Perry v R, above n 6, at [81].
We see the cases involving victims who jumped from cars as fundamentally different. In Teo there was no actual or threatened violence, but it appears the victim became fearful when Mr Teo asked him for more methamphetamine and enquired what he would find if he looked in his pocket then patted his leg. The victim died after landing on his head after getting out of the moving vehicle.[38]
[38]R v Teo, above n 31.
In Liev the victim succeeded in escaping from the boot of a moving car, however she suffered fatal head injuries. Mr Liev was charged with kidnapping and manslaughter. The Judge considered that kidnapping should be the lead charge for sentencing purposes, noting that the victim had been taken by a large group, subjected to threats directed against both her and her family, detained for 22 hours without food or water, and bound in the boot of the car for two and a half hours.[39] The Judge indicated that had he been sentencing for the manslaughter alone he would have adopted a starting point of between four and five years’ imprisonment, but the manslaughter was properly sentenced as part of the overall offending and treated as justifying an uplift on the sentence imposed for the kidnapping.[40]
[39]R v Liev, above n 31, at [23] and [27].
[40]At [38].
We consider there is a significant difference between those kinds of case and the present. In Teo and Liev, while the victims acted in response to the fear that the offenders had induced in them, the actions taken, while foreseeable, would not have been predicted. In the present case, Mr Jenkins was driven to enter the water by Mr Irving’s conduct on two occasions. Even if Mr Irving did not predict Mr Jenkins would enter the water at the beginning of the pursuit, by the second occasion Mr Irving must have known Mr Jenkins’ likely response to his threatening conduct. Indeed, Mr Irving saw the result unfold: Mr Jenkins got back in the water and stayed there. After a while Mr Irving left the scene, knowing Mr Jenkins remained in the water. He died by later drowning. Mr Irving must be taken to have known that was a possible consequence of Mr Jenkins being and remaining in the water.
This also distinguishes the present case from the facts involved in the Perry offending. Overall, while the starting point was at the higher end of the range, we are unable to conclude that it was too high.
Turning then to the discounts, we consider the Judge’s decision to allow 15 per cent for cultural factors was appropriate. In essence, the s 27 report identified elements of Mr Irving’s upbringing conducive to acting violently, and so likely to have made a causative contribution to his offending against Mr Jenkins. But we do not consider the Judge erred by not granting a more substantial discount. The principal motivation for the offending appears to have been initially the desire to rob Mr Jenkins and then to exact retribution on the basis that Mr Jenkins did not hand over everything that Mr Irving wanted him to. It was not a case where it could be said that the offending was directly driven by Mr Irving’s deprived background, not did it directly reflect his background. Rather it seems it arose from a sense of frustration or anger that Mr Irving had not handed over everything that Mr Irving wanted and had managed to escape from him. Indeed, Mr Wilkinson‑Smith submitted this was the case.
As to the failure to allow a discount for youth, Mr Irving was aged 23 at the time of the offending. While his conduct might be described as reflecting immaturity, it lacks the characteristic of impulsivity which often attracts discounts for young offenders. For whatever reason, Mr Irving’s conduct continued over a period of time, and he was not so young that he could not have appreciated the consequence of his actions. Nor was this a long sentence that would have a “crushing” effect on a person who was young. We cannot conclude that the Judge erred in deciding that a discount for youth was not appropriate.
We reach the same conclusion on the issue of remorse. The Judge was not convinced that Mr Irving’s letter of 17 April 2023 was a reliable indication of remorse (despite its heading, “Letter of Remorse”) and we are not in a position to say he was wrong. While the letter does contain expressions of regret, they were accompanied by other comments that appear more concerned about his own position and an apparent attempt to blame Mr Irving for the events that occurred. His references to wishing he had “ignored the situation” and “walked away”, and speculating about what might have happened “if he hadn’t approached me” imply that Mr Irving may have had responsibility for initiating the events that unfolded which lacks a foundation in the evidence. This is consistent with what he said to the author of the pre‑sentence report, namely that Mr Jenkins had provoked him.
As we have noted earlier the Judge commented that Mr Irving never gave an account of what took place in the initial stages of this confrontation with Mr Jenkins. The suggestion of provocation together with the passages in his letter are inconsistent with a compelling case for a discount based on remorse.
For these reasons the sentence is not manifestly excessive and the appeal against sentence cannot succeed.
Result
The appeals against conviction and sentence are dismissed.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent