R v Ahsee HC Auckland CRI-2010-055-002018

[2011] NZHC 2009

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-055-002018

THE QUEEN

v

WILLIE JOHN AHSEE

Hearing:         15 December 2011

Counsel:         JM Jelas for the Crown

DPH Jones QC and TM Saseve for the prisoner

Judgment:      15 December 2011

SENTENCING NOTES OF ASHER J

Solicitors/Counsel:

Crown Solicitor, DX CP 24063, Auckland 1140. Email:  [email protected]
DPH Jones QC, PO Box 1750, Shortland Street, Auckland 1140. Email:  [email protected]

TM Saseve, DX EP74534, Auckland. Email:  [email protected]

R V AHSEE HC AK CRI-2010-055-002018 15 December 2011

[1]      Following a jury trial Willie John Ahsee was found guilty of manslaughter. The victim was Denis Phillips, a temporary constable with the New Zealand Police.

[2]      I will start by setting out the background.

Background

[3]      Mr Phillips, in his position as a temporary constable, was carrying out the duties of a custodial officer.   He had no general power of arrest.   The events in question had nothing to do with his role as a police officer.

[4]      In a summary of key facts agreed on by the Crown and defendant at the jury trial, Mr Phillips was described as a homosexual with a liking for teenage boys. Mr Phillips  was  59  years  old.    Two  young  men  in  addition  to  Mr Ahsee  gave evidence at the trial.   They had been befriended by Mr Phillips in circumstances similar to his befriending of Mr Ahsee.  One of those young men indeed introduced Mr Ahsee to Mr Phillips approximately three weeks before the incident that led to his death.  This appears to have been the result of a chance meeting which resulted in Mr Ahsee and his friend later going to meet Mr Phillips in town.  Mr Phillips then invited Mr Ahsee to his home to do weight training in a small home gym he had set up in his garage, which contained weights and other gym equipment.   Mr Ahsee went to Mr Phillips’ home to do weights and boxing training a few times, perhaps up to four, but the exact number of times is not clear.

[5]      On the afternoon of 30 July 2010 Mr Ahsee went to Mr Phillips’ home.  He did some initial training and went for a run in the park nearby.  When he returned he did further weight and boxing training and Mr Phillips also did some training.  After they had both finished they began drinking at around 5-6pm.  Through the course of the night the evidence disclosed that a bottle of tequila and some premix bourbon and cola drinks were consumed, as well as what appears to have been a considerable amount of red wine from a cask.  The level of alcohol consumption is illustrated by the fact that post-mortem examination of Mr Phillips’ blood showed him to have had two to three times the legal limit of alcohol for driving in his blood.

[6]      At  around  8pm  they  both  went  to  the  local  liquor  store  and  purchased cigarettes and a bottle of coca cola.  The photographs from the video camera showed a relaxed and cheerful Mr Phillips.   Neighbours shortly after 8.30pm  described hearing chatter and laughter coming from the front of his unit lasting approximately five minutes.   It should be mentioned that Mr Phillips lived in an apartment with common boundaries with another apartment and other dwellings nearby and in very close proximity.  Between 9.30–10pm the neighbours heard some unusual noises.

[7]      They heard some thumping noises and the sounds of furniture being banged around.  A particular loud banging noise was heard at around 10pm.  At around that time a neighbour heard words that he thought probably came from Mr Phillips saying “I’ve had enough”, or “you’ve had enough”, or “have you had enough?”  That witness said there were no more loud noises after those words were spoken.

[8]      What has since become clear is that what the neighbours had heard when the thumping and banging was taking place was an altercation between Mr Ahsee and Mr Phillips.  Mr Ahsee stabbed Mr Phillips four times.  He used a kitchen knife from Mr Phillips’ kitchen with a serrated blade of approximately 11 centimetres.  All the stab wounds were to the upper body.  There were two to his chest, one only a couple of centimetres deep which had struck a rib.  The other had entered the chest cavity and had gone quite deep into that cavity, although its actual depth could not be determined.   The fatal  wound was  to  Mr Phillip’s  neck.   That  wound  was  7.5 centimetres deep.  The blow from the blade had severed Mr Phillips’ carotid artery and he died from blood loss due to that wound.  The knife had broken in two during the assault.

[9]      It also seems clear from the evidence that was found by the Police when they later investigated the site that the initial fatal blow to the neck had been struck in the kitchen, which was because of blood spatter patterns.  There then appeared to have been a struggle in the living room area next to the kitchen, given the amount of bloodstains  and  what  had  happened  to  the  furniture.    There  were  signs  that Mr Phillips had moved around the house while bleeding severely.  Indeed, there was bloodstaining through the remainder of the house, along the hallways, in Mr Phillips’

bedroom and in the bathroom.   The evidence also indicated that Mr Phillips had showered, or was showered, in the bathroom after the stabbing had taken place.

[10]     Mr Phillips was found lying in the hallway outside his bedroom, between that bedroom and the living room.  He lay on top of an area of blood soaked carpet.

[11]     Mr Ahsee stole items belonging to Mr Phillips before he fled the scene. Amongst other things he took his cellphone, his laptop and some items of clothing, shoes and T-shirt.   It seems clear that he was in the house for quite some minutes after the stabbing and it was during this time that he must have collected these items. He  proceeded  to  walk  to  his  home.    On  the  way he  abandoned  a  bag  with  a bloodstained  beanie  and  a  blue  singlet  in  a  neighbour’s  front  yard.    He  also abandoned his black shoes.

[12]     As he approached his home he attracted the attention of neighbours who could hear yells and screams.  He was described by a neighbour as screaming “I have killed somebody”, or “someone”.  The neighbours responsibly lodged a complaint with the Police having heard these words.

[13]     Mr Ahsee was 16 years old.  He was living in his mother’s home with other members of his family.  On arriving there he smashed two bedroom windows before entering the house.  He was in a very distressed state and his mother had to hold him as he lay on the floor in her arms.  In due course the Police arrived in response to the call.  They formed the view that Mr Ahsee was very drunk and took him into custody for the night for the purpose of detoxification.  He was taken to the Manukau Police Station.  On the way the Police asked him if he had killed someone and he answered in the negative.  He was held at the Police Station until about 6am and then he went home.

[14]     Mr Ahsee then had a conversation with his mother where he told her that he had killed somebody.  There was a discussion between them and it was decided that they should return to the Police Station.   En route he and his mother stopped at another family member’s home with whom they had a close relationship.  They told those family members that he had stabbed his boxing trainer the night before.  They

all then went on to the local Police Station.  Mr Ahsee was spoken to and he then proceeded to go in a Police car to direct them to Mr Phillips’ home.  He did not know the actual address but  he in fact did  take them to the home.   On entering the apartment they found Mr Phillips’ body.  Mr Ahsee recalled stabbing Mr Phillips but was not able to give the Police much information about the exact circumstances.

[15]     Mr Ahsee was charged with murder.   At the trial Mr Ahsee defended the charge on the basis of the defences of accident and self-defence, and also on the basis that he lacked murderous intent.   The jury verdict of manslaughter indicates that they rejected the defences of accident and self-defence but accepted that he did not have murderous intent when he stabbed Mr Phillips.

[16]     In his evidence Mr Ahsee gave more detail about what happened that night. He confirmed the very heavy drinking that had taken place and it is clear that both he and Mr Phillips were very drunk.  At some stage after they had come back from the liquor store Mr Phillips put his hand on Mr Ahsee’s upper thigh near his pocket area. Mr Ahsee pushed his hand away.   Mr Ahsee then gave evidence that after that Mr Phillips also touched him on his ear.   He said that after this had  happened Mr Phillips left the room for a short period and he went into the kitchen to get an implement to open another bottle.  In doing so he accidentally pulled out the kitchen drawer which fell out onto the floor spilling cutlery.  He bent down to start picking up the cutlery when Mr Phillips came behind him.  Mr Ahsee said Mr Phillips yelled at him and then either kicked, punched or pushed him over.  He said that he picked up what he described as “anything” from the floor (which must have been the knife) and swung it around.  He said that he did not intend to hit Mr Phillips but just wanted to get him out of the way.  Mr Ahsee gave accounts that varied somewhat as to the exact position of Mr Phillips during the course of this incident.

[17]     In cross-examination it was put to him by the Crown that there had been some consensual sexual contact between him and Mr Phillips earlier in the evening. There was DNA evidence that offered some support for the propositions being put to him by the Crown but he denied that there had been any sexual contact.

[18]     I will return to the details of this incident when I come to assess culpability.

Mr Phillips’ family

[19]     Before  I  go  further,  however,  I  wish  to  refer  to  the  enormous  impact Mr Phillips’ death has had on his family.  I had read to me a moving victim impact statement by his sister.  She refers to Mr Phillips’ many good qualities and how he had dedicated his life to the military and the New Zealand Police.   She explained how her life and that of Mr Phillips’ mother have forever changed.  I also received a moving victim impact statement from his mother who rightly makes the point that nothing he did can be used as an excuse for the terrible way he died.

Approach

[20]     In approaching a sentencing like this for manslaughter there are no guideline judgments.     It  has  been  observed  by  the  Court  of  Appeal[1]    that  where  the manslaughter involves serious violence assistance can be drawn from the judgment of that Court in R v Taueki.[2]    That case sets out guidelines for sentencing in cases where the offender has caused grievous bodily harm with intent to cause grievous bodily harm.   It is not to be treated as a guideline judgment for manslaughter in sentencing but it can provide a helpful framework for placing culpability in context when the events, if injury rather than death had ensued, would have warranted a grievous bodily harm charge.

[1] R v Tai [2010] NZCA 598 at [11]–[12

[2] R v Taueki [2005] 3 NZLR 372 (CA).

[21]     It is also relevant to consider other comparable cases.  Ms Jelas for the Crown and Mr Jones QC for Mr Ahsee referred in their submissions to both the Taueki principles and comparable cases and I am grateful to them for their very helpful submissions.    I  propose  undertaking  a  Taueki  analysis  and  then  cross-checking against some recent sentencing decisions.

Submissions

[22]     Ultimately there was not a great deal of difference between the approaches of counsel.  The Crown submitted that the appropriate starting point was to be reached

by regarding the offending as falling within band two of Taueki, which covers five to

10 years, and fixing a starting point of six and a half years.  The Crown accepted that from that there should be a discount for youth, a proposed plea of guilty to manslaughter prior to trial and remorse of 12 months.  Mr Jones on the other hand submitted that the starting point should be more in the five to six year range with mitigating factors warranting a 12 to 18 month discount.

The starting point

[23]     I have set out the facts in unusual detail in this case because it is not possible to give a definitive account of the incident in  which the fatal stab  wound was administered.   The only explanation available is that of Mr Ahsee, who was both young and gravely affected by alcohol at the time.

[24]     If the stabbing is considered without reference to the background the assault must be regarded as very serious.   In Taueki terms there were three aggravating factors.  First there was the use of the knife.  The use of a weapon must be seen in the context that it was not a weapon taken to the site or carried by the offender, but rather picked up in the kitchen.  Secondly there was extreme violence.  Thirdly there was the harm done.  It is those three factors that place it in band two of Taueki. The harm, this being a manslaughter case, was as extreme as could be imagined.  The degree of violence was severe.   There were four stab wounds and two were very deep.

[25]     These factors would warrant the offending being placed towards the top of band two.  However, both Crown and defence have rightly chosen a lower starting point recognising the background circumstances leading to the attack.  That attack must be seen in the context of three particular matters.

[26]     First, Mr Ahsee as a 16 year old had been plied with alcohol by Mr Phillips for some four hours.  He was very drunk.

[27]     Secondly, he had undoubtedly been subject to some sexual advances.  From what I have heard I am not able to say with any confidence what exactly happened

sexually between the two that night, but I do conclude that there had been sexual actions  by Mr Phillips  that  Mr Ahsee would  have found  difficult  to  deal  with. Mr Ahsee clearly was not a homosexual and there is no indication that he had had any homosexual experience.  The Crown submitted that it was simmering resentment at the sexual actions of Mr Phillips which had caused the outburst of violence.  That was not the version of events accepted by Mr Ahsee when it was put to him, even though it might be thought it would have been to his tactical advantage before the jury to have accepted that proposition.  So where the truth lies it is not possible to say.  But I do take into account that unwelcome and intrusive sexual actions were at least in part a trigger for the attack.  What I am satisfied about is that there was an element of spontaneous reaction on Mr Ahsee’s part to those actions.

[28]     The third element that must be recognised in placing the action in context is Mr Ahsee’s account of him being pushed, kicked or punched by Mr Phillips when he was bending over collecting the cutlery.  I am satisfied that there was some sort of trigger and perhaps it was that physical contact.   This led him to grab the first available weapon and lash out.

[29]     Consistent with the jury verdict, I accept he did not have any intention to kill Mr Phillips.   The violence was a drink induced reaction to unwelcome sexual advances  and  the  direct  physical  contact.   These factors  considered  collectively reduce the culpability of the offending.   They would not have fallen within the defence of provocation as it previously was, but nevertheless they can be seen as a form of provocation in a mitigating sense.

[30]     So when I look at those factors in the round a starting point towards the lower half of Taueki band two is the correct starting point consistent with the submissions I have received. This is confirmed by comparable judgments.

[31]     I do not propose setting out the details of all the cases that I have considered in detail, but I must briefly refer to some.

[32]     In R v Edwards[3] the victim had paid Mr Edwards to carry out sexual acts in his  presence  and  had  made  homosexual  advances  towards  him  while  doing  so. Mr Edwards attacked him in what the sentencing Judge considered was an extremely violent and sustained attack involving some 30 to 40 blows.  He took the victim’s car together with some of his alcohol, clothes, wallet and credit cards and used these until his apprehension by Police eight days later.  The starting point adopted there was 10 to 11 years with the Court of Appeal accepting it was well within range.

[3] R v Edwards [2005] 2 NZLR 709 (CA).

[33]     In R v Ames[4]  the offender was 15 years old.   He stabbed the victim from behind after he had been showing his girlfriend attention through an evening of drinking.  There was no suggestion of any provocation.  The starting point there was eight years’ imprisonment.

[4] R v Ames HC Rotorua CRI-2008-263-19, 30 October 2009.

[34]     In R v Edwardson[5] a 16 year old stabbed the victim in the neck after a fight. The Judge had no doubt that the wound in that case was at the very least intended to injure. The starting point adopted was seven years.

[5] R v Edwardson HC Rotorua CRI-2006-069-1101, 27 April 2007.

[35]     In R v Herewini[6] the stabbing took place after the offender had intervened in a fight between the victim and his pregnant partner.  The offender made no attempt to gain help for the victim once he had fallen.  Because the offender had retrieved a knife from his home after the initial altercation then pursued his victim the Judge considered that there was some premeditation, but there was also some provocation as the victim had taunted the offender and tried to attack him.  The starting point adopted there was seven years and three months’ imprisonment.

[6] R v Herewini HC Rotorua CRI-2007-063-3151, 5 October 2007.

[36]     Clearly the case of Edwards was considerably more serious than the present. Ames and Edwardson were closer in terms of culpability but again had some aggravating  features  not  present  in  this  case.    But  it  cannot  be  said  that  the culpability  displayed  in  Herewini  and  Edwardson  was  much  greater  than  the

culpability displayed in this case.  When I consider the aggravating factors, the range

for band two in Taueki and these cases, I come to a starting point of six and a half

years’ imprisonment.

Personal mitigating factors

[37]     I turn now to mitigating factors relating to Mr Ahsee personally.   First, it must be recognised immediately that he is entitled to a discount for youth.  Ms Jelas for the Crown points out that he has in the past come to the attention of the authorities.  I accept that and there certainly can be no discount for good character. However, while Mr Ahsee acknowledges a problem with binge drinking and while in my assessment he does have anger problems, he was still very much a teenager at the time of the event and is entitled to have that recognised in the sentencing process.

[38]     Indeed, Mr Ahsee is also entitled to a discount for remorse.  The sincerity of that remorse is demonstrated entirely by his reaction as he came to his home crying out that he had killed somebody and then falling into his mother’s arms in a clearly distressed state.  He was, of course, drunk but it was not just the alcohol that was causing him to do this.  He was in a state of turmoil.  The next morning it was his initiative to talk to his mother and there was no reluctance about his visit to the Police Station or the assistance he gave to the Police.   I do not think there was anything sinister in his inability to give a lot of detail to the Police given what he had drunk the night before, his youth and his relative lack of sophistication.

[39]     The third factor I must take into account is that approximately two weeks before the trial Mr Jones on his behalf proposed in writing that Mr Ahsee would plead guilty to manslaughter.  The proposal was carefully considered by the Crown and ultimately not accepted.  Neither Mr Jones nor Ms Jelas sought to persuade me that  any specific  percentage  discount  in  terms  of  Hessell  v  R[7]   arose  from  that proposal.  Rather they both accepted that the offer to plead should be seen as adding to the general discount that should be available for remorse.  I agree that is the best

way to approach it in this case.

[7] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[40]     So it is a matter of looking at these mitigating factors in the round.  In the end it seems to me that a discount of somewhere between 20–25 per cent for all three factors is appropriate.

[41]     The end sentence will therefore be five years’ imprisonment.

[42]     Mr Ahsee,  there are clearly positive things  about  you  and  you  have the possibility of learning a trade and leading a good and productive life and making your family proud of you, and I hope that happens.  But you will always live with the fact that you have done a very terrible thing and you will only lead the life you should if you fully recognise how dreadful and how unjustified the events of that night were, when you stabbed Mr Phillips to death.

[43]     You are sentenced to five years’ imprisonment. [44]    Stand down please.

……………………………..

Asher J