R v Beattie

[2019] NZHC 3108

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2018-088-002684

[2019] NZHC 3108

THE QUEEN

v

JULIETA HURENGA BEATTIE

Hearing:

27 November 2019

Counsel:

M B Smith for Crown

C S Cull & M L Russell for Defendant

Sentence:

27 November 2019

SENTENCE OF PAUL DAVISON J

Solicitors:

Crown Solicitor, Whangarei

R v BEATTIE [2019] NZHC 3108 [27 November 2019]

Introduction

[1]    Julieta Beattie, you appear for sentence today having pleaded guilty to the manslaughter of your partner, Richard Bristow, at Moerewa on 15 September 2018.1

Mr Bristow’s Death

[2]    You and Mr Bristow had been in what was sometimes a volatile relationship for approximately two years at the time of his death. You usually spent your weekends staying with Mr Bristow at his house in Moerewa.

[3]    On the night of Saturday, 15 September 2018, you and Mr Bristow were together at his address. You had both been consuming alcohol over the course of the evening while attending a social function. An argument broke out between you as you were on your way home, and upon arriving back at Mr Bristow’s house he told you to take your car, and take your children, and leave his address.

[4]    Your family, who were next door, intervened in an attempt to de-escalate the situation. They told you that you should leave and encouraged you to go with them. You refused to leave and your family attempted to physically pull you away.

[5]    However you managed to break free and run back to Mr Bristow’s house. He closed the front door and locked you outside. You then broke the glass panelling of his door. Mr Bristow retaliated by striking you in the face, causing your nose to bleed profusely.

[6]     You then went out to your car which was parked on his front lawn. Mr Bristow came out to the vehicle where you were seated and the two of you continued arguing through the open car window. Your family, having seen that the dispute between you and Mr Bristow had become violent, threatened to call the police.

[7]    At some point, you got out of the car and told Mr Bristow “I’m going to stab you.” You then ran inside his house, took a boning knife from the kitchen, and returned outside. You then began brandishing the knife at Mr Bristow, holding it in front of

1      Crimes Act 1961, ss 171 and 177 (maximum penalty life imprisonment).

you and waving it around and saying, “I’m going to fucken stab him”, “you don’t hit me”, “you hit me and I’ll stab you”, and “I’m gonna stab you”.

[8]    Mr Bristow responded by saying “go on, fuck you, you can fuck off”, and that you were “just like your son”; whom he described using a racial epithet.

[9]    A member of your family bravely positioned them-self between you and Mr Bristow in an attempt to stop any repetition of violence. You told them to get out of the way, so that you could stab him. Your family member refused, and told you to put the knife down. You then turned and walked back inside the house. Mr Bristow followed you, saying “my darling.” He caught up to you in the kitchen.

[10]   There you stabbed him in the chest. He suffered a smaller cut to his shoulder in addition to the stab wound to his chest. You later told the Police that you only intended to stab Mr Bristow on the shoulder once, and just to nick him, before running away. You denied having stabbed him anywhere but in the shoulder.

[11]   The shoulder injury is described by the Police as consistent with only a small amount of force having been used. However, the fatal wound was to Mr Bristow’s heart. The knife penetrated 16 centimetres into his chest.

[12]   After you had stabbed him, you and Mr Bristow and a family member became involved in a struggle to secure the knife from your grasp. You were overpowered, and the knife was dropped on to the floor. You were then dragged away from the house.

[13]   Mr Bristow exclaimed “she stabbed me” and from his injuries he died there in his kitchen.

Victim Impact Statements

[14]   You have heard the victim impact statements being read in Court this morning and they were heart wrenching and the emotion behind them was evident. The impact of your offending is far reaching and profound.

[15]   Mr Bristow’s mother’s statement, Ms Te Awe Caroline Bristow, was read and she described the shock at learning of the death of her son, and of the pain that his death has caused to her. She says it will take a long time for things to come right for her, and for her to be able to accept what has happened.

[16]   Jowhina Reihana, Mr Bristow’s eldest daughter, spoke of how this last year has been the hardest of her life. She told of how her relationship with her father had not always been the best, but in the past few years the two of them had started to reconnect and strengthen their bond, and she was looking forward to him playing a far greater role in her and her children’s lives. This opportunity has now been taken from her and she says that she will now live with a strong sense of regret for not doing more to mend her relationship with her father while he was still alive.

[17]   Ngareta, Mr Bristow’s second daughter, has told the Court that her broken heart will never heal, and the trauma of her father’s death lives with her every day. She described her father as her best friend, her hero, idol, mentor, and so much more. She spoke of the pain of hearing about the circumstances surrounding his death at a time when she was living in Australia, and the trauma of knowing that he was lying alone on the floor of his house and surrounded by blood, and that she could not be there with him. She spoke directly to you in her victim impact statement, Ms Beattie, about how her dad will now never get to spend holidays with her in Australia, walk her down the aisle on her wedding day, or meet her children when they are born. She also spoke about how much her father had given to you, Ms Beattie, to your children and grandchildren, and how much love and time he had for all of you.

[18]   Michelle, Mr Bristow’s youngest child, has told the Court how much her father meant, not only to her, but to the whole family. She described him as a loving and caring man who would do anything for his children, siblings, parents and extended family. She has told of the devastation she experienced when she first learnt of his death and how his death led her to leave New Zealand for Australia, and he was the main source of care and support for her and her children. She says that she still struggles with his death and that her life will never be the same without him.

[19]   Sandi Bristow, one of Mr Bristow’s nieces, has also made a victim impact statement as to how much Mr Bristow meant to her, and how losing him, her uncle with whom she shared a special bond, has broken her heart. She spoke of how she had to call Mr Bristow’s daughters, sister and brothers to break the news of his death to them, and how that had been the hardest thing that she had ever had to do. She spoke too of the pain and hurt the whole family are feeling. She said that her uncle James, Mr Bristow’s brother, can’t talk about him without breaking down into tears, that his daughters struggle without him, and his grandchildren ask where he is every day. She said that she hopes that you, Ms Beattie, are feeling and appreciating the hurt and pain that her and the whole family are feeling.

The Charge

[20]   Ms Beattie, you were initially charged with Mr Bristow’s murder. That charge was withdrawn, and a charge of manslaughter substituted. You have pleaded guilty to the charge of manslaughter. The offence of manslaughter for which you will be sentenced today carries a maximum potential penalty of life imprisonment.

Approach to Sentencing

[21]   The sentencing will proceed in the following way. First, I will identify the relevant purposes and principles of sentencing. Second, I will identify the aggravating and mitigating features of your offending. Third, I will consider other decisions where offenders have been sentenced for manslaughter in similar circumstances, and taking all those matters into account, I will set a starting point that reflects the seriousness of your offending. Having determined that sentencing starting point, I will then take into consideration any aggravating or mitigating factors personal to you in deciding the final sentence to be imposed on you. This will include, finally, a discount to recognise the guilty plea that you have entered.

Purposes and Principles of Sentencing

[22]   The sentencing purposes which I shall take into account when sentencing you today are:2

2      Sentencing Act 2002, s 7.

(a)holding you accountable for the harm done to the victim and to the community by your offending;

(b)promoting in you a sense of responsibility for, and acknowledgement of that harm;

(c)denouncing the conduct in which you were engaged;

(d)deterring others from committing similar offences; and

(e)providing for your rehabilitation and reintegration back into the community.

[23]   The principles of sentencing which I consider to be particularly relevant in sentencing you today are:3

(a)the gravity of your offending;

(b)the general desirability of consistency with appropriate sentencing levels between the sentences imposed in respect of similar offenders committing similar offences in similar circumstances;

(c)the effect of the offending on the victim, here including Mr Bristow’s family;

(d)the importance of imposing the least restrictive outcome that is appropriate in the circumstances; and

(e)dealing with you in a partly rehabilitative way, and in recognising the importance of considering your personal, whanau, and cultural background.

3      Sentencing Act 2002, s 8.

Aggravating features of the offending

[24]   The Crown submit that an aggravating feature of your offending involved actual violence and the use of a weapon.4 Self-evidently, your offending involved the use of a weapon, and your counsel accepted that this was an aggravating feature of your offending. The fatal wound to Mr Bristow’s chest and to his heart was, as I have said, 16 centimetres in depth. Its infliction would have required a substantial amount of force. The wound was inflicted following a prolonged and at times aggressive, and at times violent, verbal and physical altercation between you and Mr Bristow. In saying this, I acknowledge that many offences of manslaughter occasioned by an assault necessarily involve actual violence, and that the Crown does not suggest that this offending was particularly one of brutality, cruelty, or callousness.5 Nonetheless, I accept that there was a moderate level of violence involved.

[25]   The Crown also suggests that your offending is aggravated by the extent of loss and harm resulting from the offence.6 That is to say, the loss of human life. However the taking of a life is inherent in the offence of manslaughter.7 The gravity of the offence of manslaughter is reflected by the maximum penalty of life imprisonment. I do not accept that the offending in this case is particularly aggravated by the loss of life when it is compared to other cases of manslaughter. That said, I accept that the victim impact statements of Mr Bristow’s family, which graphically describe the impact of his death upon them, are relevant to the issue of the extent of harm caused by your offending.

[26]   Furthermore in terms of aggravating features of the offending, the Crown submits there was an element of clear planning and premeditation in your offending. That submission is based on you telling those present that you would stab Mr Bristow, then returning inside to get a knife, bringing the knife back outside, and then continuing to threaten Mr Bristow for some minutes before the subsequent events when you stabbed him. Your counsel Ms Cull disagrees that such a level of premeditation has been established, and she submits that you did not plan to stab

4      Sentencing Act 2002, s 9(1)(a).

5      Sentencing Act 2002, s 9(1)(e).

6      Sentencing Act 2002, s 9(1)(d).

7      Crimes Act 1961, ss 157, 160, and 171.

Mr Bristow, and says that the stabbing was the result of a two-way dispute which had been initiated by the statements made to you by the deceased, and which had escalated into violence.

[27]   I do not accept the Crown’s submission that your actions evidence clear planning and deliberation on your part. You were intoxicated, it appears significantly, at the time of the offending. However, while I am unable to regard that fact as a mitigating factor of your offending,8 it is nevertheless relevant to my assessment of your state of mind and to your actions. This was not an instinctive attack effected with a weapon of opportunity close at hand. As the argument extended over a period of time you also had an extended opportunity to consider your actions, and indeed several bystanders encouraged you to desist and leave, to bring the heated argument to a close rather than continuing with it any further. So that period of time after your initial expression of intending to stab Mr Bristow through until you subsequently did stab him must be regarded as one during which you had first developed and then maintained your intention to stab him. To that extent your stabbing of him was most certainly pre-meditated. Overall however, I consider that this was an attack carried out in the heat of an emotionally charged situation in which your judgment was clouded. I do not consider that your actions were the result of a calculated and clear minded intention to harm Mr Bristow.

[28]   In terms of mitigating features, the Crown accepts that Mr Bristow struck you in the face during the incident. This caused your nose to bleed profusely. The Crown does not accept, however, that this conduct of the victim in any sense mitigates the seriousness of your offending.9 This is because you are said by the Crown to have been the primary aggressor throughout the altercation; the blow you received to the face being a result of your having smashed the glass in the front door of Mr Bristow’s house. I consider that Mr Bristow’s conduct is best understood as going to my understanding of the context of your offending, which affects my assessment of your culpability. You were asked to leave the property and you did not. He attempted to lock you out. You, wrongly, smashed the glass in the door. He, in response, unjustifiably punched you in the face. You, equally unjustifiably, responded by

8      Sentencing Act 2002, s 9(3).

9      Sentencing Act 2002, s 9(2)(a).

finding and using a knife to attack him. At each stage you both escalated the conflict, increasing the emotional charge of the situation. This was not, it appears, the first time you and Mr Bristow had fought. It was simply that this altercation ended in such a tragedy.10

[29]   This leads on to the question of whether there was a history of violence between you and Mr Bristow during your relationship. That, it emerges from the relevant case law, is a pivotal contextual factor in evaluating the seriousness of manslaughter offending of this kind and I will turn to this later.

Case law on sentencing for manslaughter

[30]   There is no guideline authority for sentencing in manslaughter cases, as the circumstances of the offending are so varied. The guideline case for serious violent offences not resulting in death, R v Taueki,11 is sometimes applied to cases of manslaughter involving serious assault. However, the Court of Appeal has cautioned against the use of that guideline without great care, because of the very different nature of manslaughter.12 The Court has said it is more appropriate, given the importance of consistency of sentencing outcomes between similar offences and offenders, to arrive at a starting point in sentencing by reference to similar manslaughter cases and that is the approach that I intend to adopt today.

[31]   Both the Crown and your counsel have supplied me with several other manslaughter cases involving a stabbing in a domestic conflict situation. They say these cases are comparable to your case, and that they should inform the sentence I impose upon you today.

[32]   Among these is the case of Wharerau v R.13 Ms Wharerau unsuccessfully appealed against her end sentence of three years and two months’ imprisonment. In the High Court, Faire J adopted a starting point of four years and six months’ imprisonment.14 The facts of the offending were that, during an argument in Ms

10     R v Te Pana [2013] NZHC 1592 at [38].

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

12     Pokai v R [2014] NZCA 356 at [25].

13     Wharerau v R [2015] NZCA 299.

14     R v Wharerau [2014] NZHC 2535.

Wharerau’s home, Mr Ripia had slapped her across her face. She punched him multiple times on the back. She attempted to contact a family member. Mr Ripia broke the phone. Ms Wharerau left the room. Mr Ripia followed her. They continued their argument. As he advanced towards her, “really angry” in Ms Wharerau’s words, she grabbed a knife from the kitchen bench and swung it in his direction. She said that she had been attempting to scare him away. The knife however punctured Mr Ripia’s lung and the sac around his heart. Mr Ripia was admitted to hospital. He appeared to recover, but collapsed and died of injuries relating to the stabbing some weeks later. Faire J considered the relevant aggravating features to be the serious injury, the use of a weapon, and the extent of injury. Pre-meditation was not found to have been present.15 The Judge accepted that Ms Wharerau had been reckless in her use of the knife, rather than having acted deliberately.

[33]   This was all against the background of a history of low-level violence in the relationship. In assessing the appropriate sentencing starting point, Faire J referred to several cases in which the offender had stabbed their partner, after having been assaulted by their partner or having felt threatened, some during a confrontation.16 The Crown has today referred me to a number of these same decisions. The attacks had been intentional; in some cases the defendant having intended to scare off the deceased, in others to inflict a non-fatal injury. The range of starting points adopted, one of which was upheld on appeal,17 was between four years’ imprisonment and five years and six months’ imprisonment. Having compared Ms Wharerau’s case to those other decisions, Faire J adopted a starting point of four years, six months’ imprisonment.

[34]   On appeal to the Court of Appeal, Winkelmann J considered the essential features of the offending to have been the reckless nature of the stabbing, Ms Wharerau not having intended to cause a serious injury to Mr Ripia.18 Bearing that in mind, the Court of Appeal considered Faire J’s assessment of the relative gravity of Ms

15 Faire J referring to R v Lin [2013] NZHC 2837, in which Cooper J did not consider an offender retrieving a knife from a kitchen during a confrontation to have amounted to premeditation.

16  R v Paton [2013] NZHC 21; R v Hu [2012] NZHC 54; R v Woods HC Gisborne CRI-2011-016-   48, 10 June 2011; R v Tamati HC Tauranga CRI-2009-087-1868, 21 October 2009; and R v Stone HC Wellington CRI-2005-078-1802, 9 December 2005.

17 Woods v R [2011] NZCA 573.

18 Wharerau v R [2015] NZCA 299 at [21]-[22].

Wharerau’s offending was correct, Ms Wharerau’s attack having been reckless, albeit “extremely reckless”.19 The fact that Ms Wharerau’s attack was to the body, rather than, say, to the leg, rendered it more serious. The fact that it was an instinctual grabbing of a weapon in circumstances in which the offender had a sense of being threatened rendered it less serious.20 These comments and that case, both in the High Court and the Court of Appeal, are of considerable use in my assessment of your offending today.

[35]   Also of assistance is R v Balkind,21 where Ms Balkind and her partner, the deceased, were on a caravanning holiday, and an argument developed between them. They had both been drinking. The deceased began making threats against Ms Balkind’s pet cat. She stood up to try and find the cat. The deceased launched into a surprise attack, repeatedly “thumping” Ms Balkind. She picked up a knife from the bench. Ms Balkind said they had struggled for the weapon. The expert witness’s opinion was that the victim’s injuries were inconsistent with that account. The victim was stabbed in the neck, and then the chest. It had seemed to witnesses, who went to the deceased’s aid, that after the victim had collapsed on the ground Ms Balkind had continued to argue, still angry with him. Having referred to several other manslaughter cases, including Wharerau,22 Clark J considered the seriousness of the offending to be aggravated by the extreme level of violence and the fact that, even if Ms Balkind had been acting in self-defence, her response had been grossly disproportionate. The Judge accepted Ms Balkind had a propensity for violence against her partners that meant that, even if her partner had assaulted her on the night in question, that did not significantly mitigate the offending.23 There was not, Clark J considered, the same history of extensive violence against Ms Balkind as there had been against the defendants in other cases, where that contextual factor had been seen to be highly mitigating.24 Against this background, Clark J considered a starting point of four years and nine months’ imprisonment was warranted, being at the upper end of the range of

19 At [24].

20 At [24].

21     R v Balkind [2019] NZHC 2095.

22     And also R v Waa [2018] NZHC 1028; R v Rose [2017] NZHC 1488; R v Woods [2011] NZCA 573.

23     R v Balkind [2019] NZHC 2095 at [21].

24 At [22].

three and a half through to five and a half years’ starting points adopted for defendants who had killed abusive partners or partners who had a history of abusing them.25

[36]   Ms Beattie, your counsel, Ms Cull, has referred me to the decisions of R v Hu,26 R v Rose,27 and R v Mahari,28 and she submits that a starting point in the range of three and a half to four years should be adopted in your case. In Hu, the defendant had killed her partner during a verbal altercation between the two of them, where there was some suggestion he may have used physical force falling short of violence when he brought her back into their house when she had tried to leave. The victim was then seated at a computer with his back to the defendant who then went to the kitchen and got a small paring knife. Their argument continued and the defendant became angry and aiming for his shoulder, stabbed the victim in the neck. The knife however penetrated his carotid artery and he died. The starting point adopted in that case was four years and nine months.

[37]   In Rose, the defendant had killed her partner, who was a patched member of Black Power, with whom she had been in a relationship for four years. An argument developed between the two of them on the night of his death. The deceased became violent and punched her in the head and body, causing bruising to her ribs and a black eye. The verbal argument continued and the deceased made comments to the defendant such as “you’re gonna die, bitch”. The defendant took out a small pocket knife and stabbed him in the upper part of his back. The deceased then punched the defendant several times, again telling her she was “gonna die”. The defendant fled the address. The deceased did not deteriorate for about two hours after the defendant had fled. He initially declined assistance from an ambulance. However, several hours later he was taken to hospital where he died due to complications from the stab wound. In that case the Judge adopted a starting point of three years and nine months’ imprisonment, and accepted the attack was a somewhat impulsive response to a violent situation initiated by the deceased and that the attack, though directed at the deceased’s back, was not to a particularly vulnerable area such as his neck or chest.

25     R v Kirk [2016] NZHC 1249 at [45] and [66].

26     R v Hu [2012] NZHC 54.

27     R v Rose [2017] NZHC 1488.

28     R v Mahari HC Rotorua CRI 2006-070-8179, 14 November 2007.

[38]   In Mahari, the defendant had killed her partner of five years with a single stab to his shoulder area behind his neck. Their relationship had been characterised by violence and excessive alcohol consumption. On the day in question, an argument had ensued between the couple which had turned violent when the deceased placed the defendant in a headlock and began assaulting her violently. The defendant was angered and caused damage to the deceased’s car, to which the deceased responded with the threat “you fuckin’ wait, bitch”. The defendant locked herself inside the caravan the two shared and grabbed a 20 centimetre long knife. The deceased forced his way through the door, the defendant then brought the knife down, stabbing him between the neck and the shoulder. He died before emergency services could arrive. A starting point of four and a half years’ imprisonment was adopted by Winkelmann J, taking account of the aggravated conduct of the deceased, the impulsive action of stabbing the deceased, and also the use of a lethal weapon and the delivery of a blow with that knife which was likely deadly.

Pre-sentence reports

[39]   As the foregoing summary of the relevant case law makes clear, the final factual matter I must assess to allow me to properly assess your culpability is the important contextual factor of the nature of your relationship with Mr Bristow. Specifically, I must determine whether there was any history of violence between the two of you and, if so, who was the perpetrator or perpetrators of that violence.

[40]   The Corrections’ pre-sentence report is useful in making that assessment. You told the report writer that you had known Mr Bristow for the better part of three decades. Your intimate relationship with him had commenced some two years prior to his death and it was obviously tense, volatile and unstable at times. You said that you would drink alcohol together, “usually argue”, and that you “had some good times and some bad times”. You explained that Mr Bristow would “backstab” your children, and that he was “mean” to you. You said that the night he died was not the first time you had threatened him with a knife in order to scare him. The report records that you have a propensity towards violence. Whether the author drew that from your admitted history of threatening Mr Bristow with a knife, or on some other basis, is not clear from the terms of the report.

[41]   Also relevant in assessing the history of your relationship is your own personal history. This is relevant to assessing both the gravity of your offending, and the extent to which those factors personal to you affect your culpability. I will, of course, take these factors into account in a substantive sense only once, so as to avoid double counting. You told the report writer you were the youngest of nine siblings, raised in a rural community by “yourselves”. There was, you said, a lot of “neglect”, “abuse”, a “lots of drugs”; accompanied by an apparent lack of nutrition. Your father, you said, was a physically abusive disciplinarian. You yourself have five children, aged between 11 and 25, and their father, from whom you have been separated for some seven years, is imprisoned. He is behind on his child support payments. You have supported your dependent children from working as a cleaner and from your benefit funds as you receive them. That does not appear to have been an easy life for you. You told the report writer you have unpaid bills and you have an overdraft.

[42]   A detailed and comprehensive psychological report was prepared for you at the request of your counsel. The report was written by Ms Amanda McFadden, who is a clinical psychologist. This report addressed your relationship with Mr Bristow, and the intimate partner violence you describe having occurred during and within that relationship with him. You told the report writer that in the 12 months prior to Mr Bristow’s death he had become violent with you. You recalled two occasions on which he had strangled you, during which he had told you that “I could kill you right now, Juls” and how he had threatened to harm you before the first time he had strangled you. You also recounted how he had been emotionally and verbally abusive to you throughout your relationship, describing him as “running me down, degrading me to the lowest of the low.” You also recounted how he would emotionally abuse you by picking on your children and running them down to you. You said he referred to one of your sons as a “faggot”, threatening your children and saying that they “need a hiding”. You also recalled becoming concerned for the safety of your youngest child, only four years’ old, after several incidents where Mr Bristow would swear at and target the child.

[43]   The report also touched on your recollection of growing up in a strict and abusive household, where you were regularly subjected to physical abuse from your parents. Your relationships were also relayed to the report writer, and described to the

report writer as including relationships prior to that with Mr Bristow. That earlier relationship, the details of which I will not describe or recount here, was clearly extremely manipulative and resulted in you being taken advantage of in a most improper manner.

[44]   The report also referred to your substance abuse as having had a significant impact on your life since adolescence. You reported abusing alcohol heavily throughout your life, particularly at times of great stress, such as when your relationships were beginning to disintegrate. On the date of Mr Bristow’s death you told the report writer that you consumed perhaps up to 12 bottles of beer.

[45]   The  report  also  recounted   your  feelings  of  trauma  at  having  caused   Mr Bristow’s death. You said that you have to face up to the fact that he died every day, that you are trying to carry on, but it is a part of you now, that will not go away. You said that you have accepted what happened and the consequences you would face and having done so makes it somewhat easier for you.

[46]   A cultural report was also prepared in relation to you at the request of Ms Cull. The report was written by Ms Shelley Turner, a specialist report writer of cultural reports. That too was a comprehensive and detailed report. That report addressed your understanding of Tikanga Māori and connection to Te Ao Māori. While you were said to have a good understanding of Tikanga, you expressed a feeling of disconnection from your cultural identity.

[47]   That report also considered similar matters to that covered in the psychological report, including your early history of deprivation, family neglect and abuse. The report also touched on your previous relationships, which involved significant emotional abuse and breaches of trust. On the subject of your relationship with Mr Bristow, emotional abuse at his hands was raised, with you reporting that he would emotionally run you down and make you feel useless.

[48]   The report writer drew a causal nexus between your lifelong experiences of emotional and physical abuse, your feelings of low self-worth and your drug and alcohol addiction, and your offending against Mr Bristow. The report writer

considered that your offending can be seen as a direct result of the emotional and psychological trauma you have experienced from a young age, and have continued to experience throughout your adult intimate relationships.

[49]   The report writer noted that you feel a considerable amount of shame about your offending, having said that it is going to be with you for a long time and is something that you can never get rid of. The report concluded that you carry a lot of hurt and heartache for what you have done, and you have accepted the predicament that you have placed yourself in as a result of your actions.

[50]   Ms Beattie, you are far from the only person coming before the Courts whose early life experiences and family background are similar to your own and where one can readily infer from the reports prepared,29 appear to have rendered them, as is the case for yourself, less able to respond to social conflict and adversity in a rational and measured manner when it is encountered. This is not to excuse you or justify your behaviour. But it does go some way to explaining why you appear to have resorted, while intoxicated, to using a knife to express your anger at your partner. In that sense, it further informs the issue of your culpability, and I consider it is relevant to assessing your culpability for this offending. I will develop this further when considering the aggravating and mitigating factors personal to you.

Starting point

[51]   First though, I must assess an appropriate starting point for your offending, having regard to the other cases I have discussed, the aggravating and mitigating features of your offending, and the submissions of counsel.

[52]   The Crown submits that the appropriate starting point should be in the range of four and half to five years’ imprisonment. Your counsel submits a starting point of

29 See Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [49] fn 35 and [65], approved Zhang v R [2019] NZCA 507 at [159] and [161]-[162] for discussion of the importance of demonstrating linkage between personal background factors and offending in assessing culpability at sentencing, but also for a recognition of the ability to do so inferentially from available evidence, and further as to the relevance of those factors to sentencing. While those comments were made in the context of evaluating a report expressly presented pursuant to s 27 of the Sentencing Act 2002, there is nothing in the wording of s 27, or the statutory scheme as a whole, that appears to render it inappropriate to approach similarly relevant material contained in a Corrections pre-sentence report.

three and a half to four years’ imprisonment is the appropriate starting point in the circumstances of your case.

[53]   I am mindful that Mr Bristow was the first person to use violence against you on the day of your offending, and I am mindful that there does appear to have been a history of intimate partner violence between you and Mr Bristow, characterised by emotional and physical abuse, perpetrated by him against you. I am also mindful, however, that his striking of you was in response to you breaking into his home by kicking the door in, which he had deliberately locked in an attempt to keep you out and away from him.

[54]   I am also mindful of the way in which you came to be holding a knife; and the interval of time that passed, and the events that took place, between you picking up the knife and Mr Bristow sustaining the fatal injury. I have accepted that this was not a premeditated attack, in the sense of someone having lain in wait in cold blood. This attack occurred during a period of intense emotion, fuelled by intoxication with alcohol. Nonetheless, a significant amount of time – possibly several minutes – passed between you going out of your way to go and fetch a knife and you fatally stabbing Mr Bristow. In that time several of your relatives had appealed to you to simply leave in order to avoid further escalating the situation. So while this was a crime committed in the course of a heated and extended argument, it was not an instinctual use of a weapon of opportunity grabbed from somewhere near at hand and this offending occurred after you had deliberately gone to locate and fetch a knife, which is a quite different situation than that of some of these other cases I have been speaking about.

[55]   I consider your offending to be of a higher level of culpability compared to the offending in Mahari which your counsel has referred me to and in which Winkelmann J adopted a starting point of four and a half years. In Mahari the defendant’s relationship with the victim was described as volatile and abusive. On the day prior to the killing the victim had a court appearance in relation to an assault on the defendant which had been alleged. During an extended alcohol inflamed argument, the deceased tried to enter the defendant’s cabin after she had locked the door to keep him out. As he was bashing at the door she fetched a knife from her kitchen drawer and when the victim managed to open the door and enter her cabin,

she stabbed him once in the shoulder inflicting a fatal would. Winkelmann J found that the defendant’s action in striking out with the knife was impulsive, and that the fetching of the knife was done out of self-defence but which was ultimately misplaced.

[56]   Your relationship history with Mr Bristow was also volatile and had involved both emotional and physical abuse on occasions prior to the events of 15 September 2018 when Mr Bristow died. As was the case in a number of the cases which I have mentioned, your action of stabbing Mr Bristow occurred in the context of an emotional argument following both of you having consumed alcohol and shortly after Mr Bristow had punched you in the face causing profuse bleeding. That blow and its effect clearly provoked and angered you. Your subsequent action of expressing an intention to stab Mr Bristow before going inside and fetching a knife, and then brandishing it at him outside the house before stabbing him after he had followed you back inside, in my view presents a distinctly more serious level of culpability than I have just summarised from the Mahari case because of the time interval during which you were urged by your family to leave Mr Bristow’s property and return with them to their nearby house. You had an opportunity to stop and think about what you were doing, and what you subsequently did and so what happened when you did stab Mr Bristow was therefore not instinctive or spontaneous in terms of being a reaction to what had happened during the argument or to being punched in the face.

[57]   Because you adopted that persistent attitude and refused to accompany your family members who were trying to get you to leave with them, and despite their efforts at intervening to stop you, you continued and proceeded to go into the house and subsequently use the knife that you obtained from the house to stab your former partner. I also consider your offending to be of a higher level of culpability than the offending in the cases of Hu and Balkind where the Court adopted starting points of four years and nine months.

[58]   Having regard to all those matters and the comparative cases I have considered, I have concluded that the appropriate starting point for your offending is five years’ imprisonment.

Aggravating and mitigating features personal to the offender

[59]   The Crown does not suggest that there are any aggravating or mitigating features personal to you that warrant any adjustment being made to this sentence.

[60]   Ms Cull however submits that deductions from the starting point should be made to recognise your previous good character; genuine remorse; time spent on EM bail; and the factors identified in the cultural and psychological reports establishing a causal nexus between your background and your offending; as well as your guilty plea.

[61]   I note, Ms Beattie, that you are 47 years old and, as Ms Cull has said in her submissions, you have no relevant prior conviction, your only prior conviction being one of careless use of a motor vehicle some 18 years ago, for which you received a

$500 fine.

[62]   Following your arrest you spent almost 10 months on EM bail, which involved restrictive conditions, before being remanded in custody following your guilty plea in October this year. Your counsel refers to the circumstances of your EM bail as being highly restrictive, with exceptions for absence from the EM bail address only allowed for counselling or other approved appointments. You lived alone during that time, and were not allowed to have contact with your daughter, as she was a Crown witness.

[63]   As to remorse, I again refer to the Corrections pre-sentence report. The author of that report states that you are deeply saddened by Mr Bristow’s death, and that you have had suicidal thoughts while in custody. You accept that it was your actions that have caused his death and both the psychological and cultural reports also noted that you were experiencing trauma and shame at what you have done, that you are carrying the weight of Mr Bristow’s death, that you have accepted what you have done and are prepared to face the consequences.

[64]   I note too that you have submitted to the Court this morning a letter expressing your deepest sympathy towards the Bristow whanau and your deep regret at what you did and the effects of what you did and your acceptance of responsibility and I understand a copy of that letter in due course will be made available to Mr Bristow’s family.

[65]   I also note that you have accepted that a condition in relation to alcohol and drug testing would be necessary in relation to any future you have in the community and you were speaking in terms of a community-based sentence. As Ms Cull has said, such a sentence is not within the scope of the Court’s sentencing range today. Nonetheless I am encouraged by your recognition, which appears to reflect your drawing some connection between your intoxication and use of alcohol and its contribution to the events of the night on which Mr Bristow died. This also underlines the need for a sentence which provides for your rehabilitation and reintegration into the community.

[66]   I accept that there are several factors in your past which do have a causal nexus with your offending. Those factors are your cultural alienation, your history of psychological, physical and emotional abuse, at the hands of members of your family and your intimate partners, and your reliance and recourse to alcohol as a coping mechanism to deal with the trauma that you have experienced throughout your life.

[67]   Having regard to these factors, and to other cases dealing with offenders with similar personal circumstances and personal factors of that kind, I consider it appropriate to apply a discount of 15 per cent in recognition of those factors related to your personal and family background.

[68]   As to your previous good character, your remorse and recognition of the time you have spent on EM bail, I shall allow a further five per cent.

[69]   For these reasons, I shall allow a 20 per cent discount from the identified starting point in relation to those factors which are factors personal to you, which results in a starting point of four years’ imprisonment.

Guilty plea

[70]   Finally, I must determine what discount is appropriate to reflect your having entered a plea of guilty. In the case of Hessell v R, the Supreme Court discussed

discounts of this kind. The Court said that the appropriate level of guilty plea discount in any case is to be determined by reference to:30

(a)the degree to which the plea of guilty facilitates the administration of the […] criminal justice system; and

(b)the objective circumstances in which the plea of guilty was made, including whether the offender pled guilty at the first reasonable opportunity to do so […]

[71]   The Court emphasised the importance of evaluating these two factors in conjunction, so that perverse incentives or arbitrary windfalls do not result.31 Significantly, remorse, or the lack thereof, is an entirely separate sentencing factor.32 Guilty pleas, as the Court recognised, can be prompted by several considerations. The discount that they should appropriately attract depends on all the circumstances of the case.

[72]   Here, given these considerations, the Crown has said your appropriate guilty plea discount should recognise the fact that your guilty plea was entered soon after the charge of murder was reduced to a charge of manslaughter after the trial call-over.

[73]   Your counsel has said that you informally offered to plead guilty in July 2019 and the offer was formally recorded in writing in August 2019. The Crown are said to have not responded until the week before the trial.

[74]   In evaluating these submissions, I am mindful that the Court of Appeal has accepted that an offender who offers to plead guilty immediately following the amendment of a charge notice pleads guilty at the first reasonable opportunity.33 That is the case here and, as a result, it can fairly be said that you, Ms Beattie, have reduced the State’s costs in preparing for trial as far as could reasonably be expected, thereby greatly facilitating the administration of the criminal justice system and avoiding the need for a trial and the potential distress that a trial would have on witnesses and particularly family members of the deceased, Mr Bristow. Accordingly, I consider that a discount of 25 per cent is appropriate in your case.

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

31 At [60].

32     At [57] and [63]-[64].

33     Heta v R [2012] NZCA 267. See also Mains v R [2016] NZCA 290.

[75]   This will result in a further reduction and yield an end sentence that I will impose upon you of three years’ imprisonment.

Minimum period of imprisonment

[76]   One final matter. The Crown submits that, because of the high level of violence you employed in killing Mr Bristow, and you being the primary aggressor, the proportion of your sentence that you must serve before becoming eligible for parole should be one-half, rather than only one-third.34 This is because, the Crown says, the one-third period is insufficient for the purposes of holding you accountable for the harm that you have done, for denouncing the conduct in which you were involved, and for deterring you and others from offending in a similar manner in the future.35

[77]   Taking the third of the Crown’s submissions first, I am not persuaded that it is necessary for me to impose an additional minimum period of imprisonment (MPI) to deter you from offending in a similar manner in future. I am not persuaded that you are likely to engage in a serious violent offence outside of a family violence context, and, I am not persuaded that the risk of future offending against intimate partners is so clear as to warrant an MPI being imposed as the Crown have submitted.

[78]   As to the Crown’s other submissions, I am guided by the Court of Appeal’s statements in R v Brown.36 The Court said that it is always necessary to bear in mind the central question of culpability, and whether the offending is so serious that the normal MPI will be insufficient to meet the relevant statutory purposes. Culpability in this sense is increased by the same types of factors noted above;37 and, in particular, unusual callousness, extreme violence, vulnerable or multiple victims, or serious actual or intended consequences. This is to be assessed by reference to offences of the same type, and of the same seriousness of offending of that type.38 For this reason, the absence of any unusual or extreme features for offending of the kind and degree in question tells against the imposition of an additional MPI.39

34     Parole Act 2002, s 84(1).

35     Sentencing Act 2002, ss 86(2)(a)-(c).

36     R v Brown [2002] 3 NZLR 670 (CA) at [35].

37 At [36]. See also R v Nguyen [2009] NZCA 239; R v Walsh (2005) 21 CRNZ 946 (CA)/

38     R v M (2003) 20 CRNZ 231 (CA).

39     R v Wirangi [2007] NZCA 25 at [17].

[79]   That is very much the case here. While violence was a feature of your offending, and it has resulted in the death of a person, that violence cannot readily be described as callous, and the consequences of the offending are those necessarily implied by and implicit in the charge of manslaughter. For these reasons, I do not consider that an additional MPI is required to meet the relevant statutory purposes. Furthermore, I am mindful that you have only one single previous conviction, for careless driving some 18 years ago, and I am also mindful that you are not therefore a hardened offender for whom a longer prison sentence might arguably be required.

This further speaks against the imposition of an additional MPI.40

[80]   For these reasons, I decline to impose an additional minimum period of imprisonment.

Sentence

[81]Ms Beattie, please stand.

[82]   For the manslaughter of Richard Bristow, you are sentenced to three years’ imprisonment. You will be eligible for parole, in the ordinary manner, after having served one-third of your sentence.

[83]You may stand down.

Paul Davison J

40     See, for example, Ali v R [2019] NZCA 35.