R v Anderson-Humphrey
[2021] NZHC 1569
•29 June 2021
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-019-154
[2021] NZHC 1569
THE QUEEN v
BETTY-JO ANDERSON-HUMPHREY
Hearing: 29 June 2021 Appearances:
R L Mann for Crown
P J Morgan QC for Defendant
Judgment:
29 June 2021
SENTENCING REMARKS OF LANG J
Solicitors:
Hamilton Legal, Hamilton
R v ANDERSON-HUMPHREY [2021] NZHC 1569 [29 June 2021]
[1] Ms Anderson-Humphrey, you appear for sentence having been found guilty by a jury on a charge of manslaughter.1 As you are aware, the maximum sentence for that offence is life imprisonment.
Factual background
[2] In order to fix the appropriate sentence to be imposed on you I need to make several factual findings based on the evidence given to the jury.
[3] The evidence disclosed that your offending had its genesis in the breakdown of your relationship with your then partner, Mr Johnny Junior Bennett. You had been in a relationship with him for approximately five years and you had a daughter who was approximately three years of age. You had stood by Mr Bennett during a period when he went to prison for approximately two years.
[4] It seems that during the latter part of 2019 your relationship became strained. During this period he had formed a new relationship with another partner, who lived in Hawkes Bay. She came to Hamilton for the weekend of 30 November 2019 with the intention of taking him back to Hawkes Bay with her at the end of the weekend. The evidence disclosed that you learned of this through text messages and other communications on Saturday 30 November 2019.
[5] On the following day, Sunday 1 December 2019, Mr Bennett came to the address where he had been living with you to pick up his belongings. During that day you had drunk a considerable quantity of pre-mixed spirits and you had also smoked cannabis. Mr Bennett’s visit to your address ended in the two of you arguing. He packed a bag with his belongings and then left the address. You accompanied him to the street, where he told you to go back inside the house. You then saw him drive away. His new partner was sitting in the front passenger seat of the vehicle and you saw her there.
[6] You were concerned not only at the breakup of your relationship but also at the prospect of Mr Bennett leaving Hamilton. One of the issues this raised related to the
1 Crimes Act 1961, s 171.
future care of your three year old daughter and the extent to which Mr Bennett would have contact with her. A short time after he had left your address, and whilst you were in a significantly intoxicated state, you went with your two nieces and one of their partners to an address in Hamilton where you believed Mr Bennett would be saying goodbye to his brother. I am satisfied that the purpose of the visit was two-fold. First, to confront him about the fact that he had a new partner. Secondly, to have him sign a document relating to the future care of your daughter and the contact he would have with her. You had tried to get Mr Bennett to sign this document when he was at your address, but he refused to do so.
[7] When you got to Mr Bennett’s brother’s address you found that Mr Bennett was not there. However, he and his new partner drove down the driveway of the address a short time later. When he saw your vehicle parked at the address, he turned around and drove out the driveway. He then parked in a side street a short distance away. He walked back to the address, leaving his new partner sitting in his vehicle on the side street.
[8] Shortly after Mr Bennett entered the address a heated argument occurred. At some stage during this Mr Bennett was confronted as to whether he had a new partner. The issue of the agreement relating to the care of your daughter was also raised. He again refused to sign the agreement. The incident inside the house ended when your two nieces walked down the driveway in an effort to find and confront Mr Bennett’s new partner. He could obviously see what was happening and followed them down the driveway. You then followed Mr Bennett.
[9] The jury had the benefit of viewing CCTV film footage depicting what happened after the four of you went up the driveway. This was taken from several cameras affixed to a neighbouring house. As a result, and unusually, the jury had the benefit of seeing and hearing exactly what happened after the four of you left the house.
[10] One of your nieces, Ms Selassie-I Iraia, turned around at the top of the driveway when she became aware Mr Bennett was following her. Up until that point her focus had been on attempting to locate Mr Bennett’s new partner. Once Ms Iraia
realised Mr Bennett was following her, she turned her attention to him. It is clear from the CCTV footage that Ms Iraia formed an intention to strike Mr Bennett as he arrived at the top of the driveway. She then struck Mr Bennett a single blow to the abdomen as he tried to walk past her. It transpired that Ms Iraia was carrying a knife. The blow pierced Mr Bennett’s abdomen and injured his heart. A neighbour immediately drove him to hospital, but he succumbed to the injuries from the stab wound and died a short time later.
[11] The principal issue at trial related to words you called out to Ms Iraia immediately before she stabbed Mr Bennett. The Crown alleged that you called out “stab him lass”, whereas the defence case and your evidence was that you called out “grab him lass”. You said you wanted your niece to grab Mr Bennett so you could ask him again to sign the document.
[12] The jury’s verdict means they accepted the Crown’s interpretation of events. Furthermore, when you reached the top of the driveway, you asked, “Did you get him?” It follows that the jury accepted the Crown’s argument that you intentionally encouraged Ms Iraia to stab Mr Bennett immediately before she inflicted the fatal blow.
[13] Ms Iraia gave evidence on your behalf. She said she picked up the knife as she left the house and began walking down the driveway. I do not accept that evidence because I think it is inherently improbable a knife would have been lying outside the house as she described. It is more likely in my view that Ms Iraia either took the knife to the address or got one whilst at the address when the argument became heated. I cannot be sure, however, that you knew Ms Iraia was carrying the knife before she began walking up the driveway. The words that you used as she was about to strike Mr Bennett make it clear, however, that by that stage you knew she was armed with a knife and with that knowledge you intentionally encouraged her to stab Mr Bennett.
[14] Importantly, however, although your words of encouragement came prior to the infliction of the fatal blow, that was only marginally the case. Ms Iraia struck the blow virtually contemporaneously with you calling out to her. I therefore cannot be sure that, even though you intended to encourage Ms Iraia, your words actually
prompted her to stab Mr Bennett. When she gave evidence at trial Ms Iraia said she did not hear what you said, but I give little weight to that explanation because I consider she was clearly determined to assist your cause before the jury. However, having viewed the CCTV footage on many occasions, I consider it reasonable possible that Ms Iraia had committed to the infliction of the fatal blow before you called out to her. I must therefore sentence you on the basis that your encouragement may not have prompted her to commit the act that caused Mr Bennett’s death.
Starting point
[15] The first stage of the sentencing process is to set a starting point. This reflects the overall culpability of the offending but does not take into account factors that are personal to you.
[16] There is no guideline judgment of the Court of Appeal setting the starting point for manslaughter because that crime can be committed in so many different ways. In the present case I consider it important to have regard to the question of parity between yourself and Ms Iraia.
[17] Ms Iraia pleaded guilty to a charge of manslaughter. The Judge who sentenced Ms Iraia selected a starting point of four and a half years imprisonment.2 This reflected the Judge’s view that the blow that killed Mr Bennett was an impulsive act in which Ms Iraia lunged at him with a knife.3 The fact that she was carrying a knife was obviously an aggravating factor because a knife is an inherently dangerous and deadly weapon. However, although emotions were clearly running high at that time Ms Iraia committed the act, there was no suggestion this was a provoked assault in the sense that Ms Iraia was defending herself. Furthermore, Ms Iraia ran off without offering any assistance to Mr Bennett.
[18] The aggravating feature so far as you are concerned is that you plainly knew Ms Iraia was carrying a knife and you intentionally encouraged her to use it to stab
2 R v Iraia [2020] NZHC 1084 at [26].
3 At [25].
Mr Bennett. That is so, regardless of the fact that she may already have been committed to that act when you called out your words of encouragement.
[19] Underpinning the sentence to be imposed on you is the fact that this incident robbed Mr Bennett of his life at a young age and thereby robbed his family of a much- loved member of their whānau. You have heard two emotional and heart rending, yet measured, victim impact statements read to the Court today by Mr Bennett’s new partner and his aunt. These demonstrate graphically the tragedy that has befallen Mr Bennett’s family. Nothing the Court does today can repair the damage you and Ms Iraia have caused. The only encouraging thing to be taken from all of this is that you have acknowledged the loss they have suffered and expressed some remorse for that fact.
[20] The Crown contends there is nothing to separate your culpability from that of Ms Iraia. It says I should adopt a starting point of four years six months imprisonment in your case as well. Your counsel submits the lesser role you played in the offending and the fact that the Court cannot be sure regarding the issue of causation means I should adopt a much lesser starting point. Mr Morgan submits that a starting point of no more than three years imprisonment is appropriate.
[21] I take into account two factors. First, you were not the person who struck the fatal blow. Secondly, I cannot be sure, as I have already said, that your encouragement had any actual effect on the outcome. I consider a significant allowance needs to be made for this. I therefore take a starting point of three years nine months imprisonment.
Aggravating factors
[22] You have two previous convictions, but they are for driving offences and have no relevance in the present context. There is therefore no uplift for aggravating factors.
Mitigating factors
[23] In terms of mitigating factors, I have identified three mitigating factors. First, you were just 22 years of age when the offending occurred. That is at the upper end
of youth, but I consider a modest discount can nevertheless be afforded for that fact as well as such remorse as you have expressed. I apply a discount of three months to reflect these factors.
[24] Next, your counsel has provided me with a cultural report under s 27 of the Sentencing Act 2002. This identifies several issues you confronted in your early life. In particular, you were involved in a serious car accident when you were just a year old. This left both your parents dead and therefore left you an orphan at an extremely young age. You were then cared for by your grandmother until she passed away when you were seven years of age. Thereafter, you were effectively raised by your siblings. However, living arrangements changed frequently as siblings grew up and left the home. This obviously involved a degree of displacement for you as you moved from residence to residence and caregiver to caregiver. Issues obviously also arose because the report records that the Children Young Persons and their Families Service were required to attend the addresses at which you were living on several occasions. I have no doubt that the trauma that you suffered through the loss of your parents at such a young age led directly to the anxiety you felt about your own daughter’s future care arrangements on the day of the offending.
[25] You also began to use drugs and alcohol in your adolescent years and effectively disengaged from educational endeavours. The former was also a factor in the present offending. Furthermore, you were in a relationship with Mr Bennett for approximately several years, and this was also fraught with a degree of difficulty. All of these factors are likely to have had some causal connection with the offending. I propose to allow a discount of eight months, or approximately ten per cent, to reflect those factors.
[26] Finally, you spent three months in a remote location on electronically monitored bail before you were admitted to ordinary bail. I propose to allow a discount of one month to reflect this factor.
[27] This means I have identified discounts totaling 12 months. These reduce your sentence to one of two years nine months imprisonment.
Sentence
[28] On the charge of manslaughter you are sentenced to two years nine months imprisonment.
[29]Stand down.
Lang J
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