R v Atkinson HC Christchurch CRI 2004-009-15365

[2005] NZHC 482

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2004-009-015365

REGINA

v

JESSE TE AROHA ATKINSON

Hearing:         30 September 2005

Counsel:         J A Farish for Crown

D C Ruth for Prisoner

Sentence:       30 September 2005

SENTENCE OF PANCKHURST J

Mr Atkinson:

[1]      You are to be sentenced this morning in relation to crimes of manslaughter and injuring with intent to injure, both of which occurred early in the morning of 27

December last.  You were found guilty by verdict of the jury in relation to the major charge.  You pleaded to the injuring charge when I amended it at the conclusion of the Crown case.

[2]      This was a joint trial where you stood trial with your brother, James Hoet. He was found guilty of murder and was sentenced immediately to life imprisonment

with a minimum term of 10 years.

R V JESSE TE AROHA ATKINSON HC CHCH CRI 2004-009-015365  30 September 2005

[3]      His age at the time of the incident was 17 years.  He is now 18 years.  You were 20 years of age and you are now 21.  Despite the difference in your surnames I note that you are full brothers, you having taken a married surname of your mother while he took your father’s name.

[4]      On Boxing Day you individually went to a barbecue.   It was at a home at which your sister resided with her partner.  That barbecue was attended by the two victims.  Mr Smith was there all day.  He was aged 57.  By the time of the incident itself, shortly after midnight, he was grossly intoxicated.  Mr Richard Dooling, by contrast, arrived well into the evening and in my view had had only a moderate amount to drink by the time of the attack upon him.

[5]      There was evidence given at the trial which suggested that both you and James Hoet laboured under the impression that George Smith had been involved in an incident with your mother.  Equally there was evidence that you had been told the previous day that that was not the case.  In my view there can be no doubt that Mr Smith had not been involved in any incident with your mother.  I don’t know what the real motivation was for the attack and it may not greatly matter.  The fact is that George Smith had been asleep on a couch.  He went to another room in the house. He was engaged briefly in conversation by you.   He was punched and fell to the ground.  The fatal assault occurred while he was on the floor.

[6]      Dr Sage, the pathologist, described the injuries that Mr Smith sustained.  He had eight separate injuries to the head.  These were caused by at least eight separate blows but possibly more.   They caused a subdural bleed.   That was relieved by surgery, but unfortunately he had also sustained trauma to the brain itself which was such as to cause swelling which ultimately proved fatal, about two days on.

[7]      I accept what Mr Ruth has said this morning that it was not you who was shown by the evidence to be responsible for the kicks which must have been the cause of the death.  In my view the only sensible interpretation of the verdict is that the jury concluded you were a party to your brother’s actions, that is that by your actions and presence you at the very least intentionally, deliberately, encouraged what he was about.  As I have already said, he is serving a minimum sentence of 10

years imprisonment and in my view, as his older brother, and for reasons that I have already explained, you bear a heavy moral responsibility for his present predicament. Put bluntly you started it, he lost it, with fatal consequences for Mr Smith.

[8]      You then approached the second victim, Mr  Dooling.    You  said  to  him “You’re next”.   He too was felled by punches and then assaulted while on the ground, it seems kicked as well.   Fortunately, however, his injuries were comparatively minor, nowhere near as serious as those sustained by Mr Smith.  He was able to get up and he drove himself and his partner away from the scene. Nonetheless  that  too  was  a  serious  assault.    I  agree  with  Ms  Farish  that  it  is significant as well because it indicates the state you were in that night and even indicates  your attitude to what had just happened to  Mr  Smith.    The comment “You’re next” really says it all.

[9]      Mr Atkinson, I have before me now a great deal more information about your past than I had at the time of the trial.  You have a very extensive previous list of convictions for a person of your age.  They run to more than 70 in number.  About the only thing that can be said of them is what was said a moment ago by Mr Ruth, that the bulk of them occurred in the Youth Court and that last year, 2004, before these events occurred, you had, by your standards at least, a reasonably good year. Most of the previous convictions are for offences of dishonesty and what might be called nuisance offending but six, I note, are for offences of assault.  You have not been to prison before.

[10]     The pre-sentence report, as Mr Ruth commented, is not greatly helpful to you.  I do not think you were at all honest about what happened at the time of the incident itself.  You do not it seems accept responsibility for your part.  You also made comments, even after all this, to the pre-sentence report writer, to the effect that you consider violence as an acceptable reaction in certain circumstances.  I have read as well, Mr Atkinson, the part of the report which deals with your childhood and upbringing and I recognise immediately that you have had a difficult time and on that score, perhaps that score alone, I have a real measure of sympathy in relation to the predicament you now find yourself in.

[11]     Manslaughter is a slightly peculiar crime because there is no set sentencing tariff for it.  I have considered before I came onto the bench this morning a number of cases, including some that were referred to me by counsel.  Frankly, looking at those really served most to confirm why there isn’t a tariff and that is because the circumstances in which manslaughters arise can vary so greatly.

[12]     My assessment of this case is as follows.  You initiated what was, or at least what became, a murderous attack.  Two fit young men set upon an older man.  He was incapacitated through alcohol.  He was defenceless as a result.  He had offered no provocation to either you or your brother.   Mr Smith died as a direct result of injuries inflicted in your immediate presence, and in the aftermath of your knocking Mr Smith to the ground, by your brother, James.   The jury, rightly in my view, judged you to be a party to his actions, although of course without the necessary appreciation of the likely consequences to make you as well, guilty of murder.   If that was not enough  you then went straight to Mr Dooling and set about him. Fortunately, however, that didn’t go so far.

[13]     Mr Atkinson, after agonising about your case for sometime, the conclusion I reach is that the starting-point for your sentencing on the manslaughter charge should be eight years imprisonment.  The only mitigating factor in my view is your age and the unfortunate background that you have.  I therefore reduce the sentence from eight to seven years in order to recognise those features.

[14]     The injuring charge in my view warrants a sentence of two and a half years imprisonment, but reduced by six months to recognise the plea which you entered at the conclusion of the Crown case.  Like Ms Farish I see it as part and parcel, if not an aggravating feature, of the manslaughter and for that reason the sentence shall be concurrent, that is not added to the other sentence, so that the effective term is one of seven years imprisonment.

[15]     The Crown argue that yours is a case where, like your brother, you should face an minimum term of imprisonment.  I have to ask whether the normal parole eligibility date  would  be  too  soon,  given  the  need  to  hold  you  accountable,  to denounce this conduct and to deter you and others.  In my view the answer to that

question  is  yes,  a  minimum  term  is  required  and  I  fix  that  at  four  years imprisonment.

You may stand down.