R v Beazley
[2016] NZHC 811
•27 April 2016
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2015-088-000361 [2016] NZHC 811
THE QUEEN
v
PHILLIP JAMES BEAZLEY
Hearing: 27 April 2016 Appearances:
M B Smith and M Jarmin-Taylor for Crown
A Fairley and A M Harvey for PrisonerJudgment:
27 April 2016
SENTENCE OF KEANE J
Solicitors / Counsel:
Crown Solicitor, Whangarei
Thomson Wilson, Whangarei
R v BEAZLEY [2016] NZHC 811 [27 April 2016]
[1] Phillip Beazley, you appear for sentence for the manslaughter of your youngest child, your son Leonard Kingi, on 26 January 2015 at your home here in Whangarei, where he was also living.
[2] Initially you were charged with your son’s murder, an offence you denied because you contended that you had not intended to kill him and had acted out of self defence. You were to go to trial on 29 February this year. On 18 February however, you pleaded guilty to the alternative charge you then faced, manslaughter, and you were convicted of that lesser offence.
[3] Today, after I have sentenced you for manslaughter, relying on the agreed statement of facts, the Crown will offer no evidence on the murder charge and I will dismiss it. I begin with what you accept were the circumstances of your offence.
Offence
[4] On the evening of 25 January 2015, at about 6 pm, a cousin of yours and a friend of his came to your home. They had already been drinking elsewhere and they brought with them a full bottle of Coruba Rum, a small amount of whiskey, and most of an 18 bottle box of Lion Red beer. You and they began drinking together on your outside deck.
[5] You were joined at various times by your partner, your daughter and your son. Your daughter went to bed at about 8.15 pm. Your cousin and his friend left around 10-11 pm, when most of the alcohol they had brought had gone. Your partner went to bed at 10.30 pm. That left you and your son alone on the deck.
[6] Towards midnight it seems your daughter, who slept on the opposite side of the house, woke when she heard you and your son arguing in the driveway. She told you both to stop and, when you both ignored her, she woke your partner who was asleep in a nearby bedroom.
[7] From the lounge your partner looked out onto the driveway. She saw your son directly in front of her. He first looked back at her, and then without speaking fell face down to the ground. She then saw you to her right with blood over your
face, standing beside your son. You then knelt next to him obviously upset. She asked you what you had done. You said “you killed him”. She had your daughter call an ambulance.
[8] You stood up and walked out to the road but shortly after you returned and knelt by your son and embraced him. When the Police arrived they found you sitting next to him and your partner and daughter standing close by. When the Police tried to find out what had happened, you had to be restrained and arrested.
[9] Ambulance staff examined your son on the driveway and confirmed that he was no longer breathing. Police found, close to him, a large 30 cm knife and a weed eater both of which had blood on them. They also found a blood trail leading from your property to a point where they found a 50 cm steel pole, like a tent pole, with a small plastic tip covering one end.
[10] On 27 January 2015 the pathologist, who examined your son in Auckland, found he had suffered three wounds, a penetrative wound to his abdomen to the left of his belly button, a small laceration slightly higher on his sternum, and the wound to his right upper chest, which the pathologist concluded had caused his death.
[11] This third wound, 170-190 mm in depth, passed through your son’s lung and ended against his back rib cage. And, when the knife was examined forensically, it was found to have your right palm print on the handle showing that you must have been holding it with the blade pointing away from you.
[12] When you first spoke to the Police you said you and you son had been drinking and then fighting. You said your son attacked you with the knife and stabbed you in the head but you wrestled the knife from him and, when you stabbed him, that was unintentional and in self defence. You also said that you did not know where the knife was. You had thrown it away.
[13] Later when you were formally interviewed you gave more detail. You said that you were sitting on the outside deck. Your son was standing. He struck you from behind injuring your left forehead, using the butt of the knife. You and he
struggled on the ground. You took the knife. When you both got back up you had it in your right hand. He charged you. You recall stabbing him once.
Pre-sentence report
[14] I need not refer in detail to your pre-sentence report, which recommends, as it must, that you be sentenced to imprisonment for your offence and gives some background to your offending and narrates your previous convictions as a general feature.
Victim impact
[15] I do not have any victim impact statements and that is unsurprising. Your family, who are victims of your offence, have no wish to provide statements. Their loss is evident.
[16] You, yourself, are a victim of your own offence. You will have to live throughout your life with what happened that night, as well as be held accountable for it. Your own loss, also, is all too evident.
Sentencing principles
[17] Manslaughter is a singular offence. Because death has resulted it attracts potentially, like murder, a maximum sentence of life imprisonment. But because, unlike murder, death is not intended, or necessarily foreseen or foreseeable, and circumstances vary so widely, it attracts no tariff.1 Your sentence must be tailored to your offence, having regard to any other decisions that may be analogous.2
[18] Secondly, to ensure that your sentence is not less than it would have been, had your son survived, I must also set the aggravating features of your offence against those in the guideline judgment R v Taueki, which governs sentences for
serious violent offences not resulting in death.3
1 Murray v R [2013] NZCA 177.
2 R v Leuta [2002] 1 NZLR 215 (CA) at [59]; R v Edwards [2005] 2 NZLR 709 (CA) at [13]-[14].
3 R v Taueki [2005] 3 NZLR 372 (CA), R v Tai [2010] NZCA 598 at [11]; Kepu v R [2011] NZCA
104 at [9].
Starting point
[19] Counsel for the Crown and your own counsel agree that the starting point I must take for your offence is best derived from those cases involving manslaughter in the home. The death of your son resulted from the altercation between you in your home after you had been drinking together and there was a history.
[20] Counsel differ as to the starting point I should take. The Crown contends for a starting point of four and a half to five years, uplifted for the fact that you and your son had some history of violence together.
[21] Your counsel accepts, as he must, that you used actual violence on your son with the knife, but contends you did so without intent to kill or even to seriously injure your son. He contends for a starting point in the range of four to four and a half years’ imprisonment.
[22] The first of the two cases on which counsel rely is Wharerau v R.4 There a four and a half year starting point was upheld on appeal where a young women had swung a knife at her partner of six months and stabbed him in the chest in a confined space after there had been tension between them.
[23] On the appeal, the Court of Appeal accepted that she had not swung the knife intending to kill or injure her partner but she had been extremely reckless. Her offence, the Court said, “… involved the use of a knife, a potentially lethal weapon”.
[24] The second case on which both counsel rely is Woods v R.5 There a four year nine month starting point was upheld on appeal, where after a couple had argued when drinking, he had punched her in the face and followed her to the kitchen. She took a knife from the drawer and stabbed him twice. In upholding the starting point the Court of Appeal held that it could be seen as generous.
[25] Your counsel in his very careful submission also relies on three sentencing decisions of this Court where the offenders were also women in violent relationships
4 Wharerau v R [2015] NZCA 299.
5 Woods v R [2011] NZCA 573.
and where starting points lay in the range of three years and six months to five and a half years.6
[26] All five of those cases involved offences by women, who were themselves the victims of violence; and, as your counsel says, each has to be assessed. In some the women were more blameworthy than in others. In some their aggressors were more blameworthy. It cannot simply be a matter of gender preference.
[27] You were a father and son with some history of violence between you. Your son was obviously much younger and fitter. But in your struggle together he began with the knife and you ended with it, and that suggests you were not completely unmatched; there was no radical power imbalance. On that basis, I distinguish your offence from the offences in the five cases on which both counsel rely.
[28] That said, I have found helpful one of the cases to which your counsel refers, R v Paton,7 because there the Judge made a wider Taueki analysis; as did the Judge in the third case on which the Crown relied, but described as not strictly comparable, Te Pana v R.8
[29] In Te Pana the Court of Appeal upheld an eight year starting point for the manslaughter of a step father by his step son. The victim, aged 61, was sitting at a table with members of his family when the offender, aged 44, stood up and punched him several times to the head and face. As the trial Judge found he suffered intense but misguided jealousy.
[30] The Judge, as well as taking into account any comparable cases, held that on a Taueki analysis the offence had three aggravating features placing it in band 2, which attracts a starting point in the range of five to ten years’ imprisonment. The assault was unprovoked and incapable of being defended. It was to the victim’s head
and it was so severe that it proved to be fatal.
6 R v Stone HC WN CRI 2005-878-1802, 9 December 2005; R v Mahari HC ROT CRI 2006-070-
8179, 14 November 2007.
7 R v Paton ***
8 Te Pana v R [2014] NZCA 55.
[31] Another case, which may be even closer to yours and to which neither counsel referred is R v Young,9 where the offender at trial said that the deceased, a neighbour, had come at him with a tokotoko, which the offender took off him. The offender struck the deceased three times on the head causing him injuries, which proved fatal. The offender received almost no injuries.
[32] The Judge held on medical evidence that the victim might have been struck more than three times but on that basis alone adopted a starting point at the lower end of band 3 Taueki, which attracts starting points in the range of nine to 14 years’ imprisonment.
[33] In adopting a seven and a half year starting point the Judge identified as features aggravating the offence on a Taueki analysis, the three in Te Pana and a fourth, the use of a weapon. She accepted the offender had reacted defensively. But she held he had to be held accountable for his excessive over-reaction with those aggravating features.
[34] On the facts agreed in your case, there are two features which lead me to align your starting point with those in band 2 Taueki. First, your son attacked you with a weapon when you were both, it seems, very heavily intoxicated and you reacted defensively. Secondly, of the three wounds he suffered, the two lesser wounds might have happened while you and he were struggling. You are only to be held accountable for the third and fatal wound.
[35] For that wound, however, you must be held fully accountable. As in Young once you got the weapon off your son you had a choice, however brief it might have been, what to do with it. You could have thrown it well away from you both. You had no need to retain it, let alone to point it, as you must have done, towards your son.
[36] I am unable to say whether you held it towards him aggressively or he ran onto it, as you say. But it must have entered his upper chest with considerable force.
It penetrated the full depth of his upper torso. That extreme wound was the
9 R v Young [2012] NZHC 1460.
consequence of the choice you now so bitterly regret. On that basis I take a starting point in your case of six years imprisonment.
Aggravating and mitigating factors
[37] The Crown contends for an uplift to reflect the extent to which there had been violence between you and your son in the past. But, in the starting point I have taken, my focus has been on your offence itself. That history cannot be more than a contextual feature of your relationship. I cannot begin to assess which of you may have been more to blame.
[38] The Crown also contends that your previous convictions are aggravating. You have 47 previous convictions largely for driving offences, dishonesty and low level violence. But the Crown does not contend for any definite uplift and I do not consider one justifiable. Your last conviction, before this immediate offence, was in
2007 and your last violent offence was in 1994.
[39] Your counsel contends that you are entitled, apart from a discount for your plea, to a discrete discount for your remorse, a possibility the Crown accepts is open to me.
[40] As was apparent on the night itself, your counsel says, and your decision to plead and in your pre-sentence report, you bitterly regret your offence. You will have to live with it for the rest of your life, as will your partner and daughter who remain supportive of you. He adds that while you have been in custody you have undertaken courses designed precisely to address those aspects of your life which resulted in the incident with which we are confronted today.
[41] I accept that your remorse is real and long-lasting and I allow you a
20 per cent discount, taking your sentence at this point to five years’ imprisonment.
[42] Counsel agree you should have a discount for your plea of 20 per cent. I note you did not enter it until 18 February 2016 when you were facing trial on
29 February. But I accept that you were not finally in a position to decide whether to
plead guilty to manslaughter until the pre-trial issues were resolved on 4 November
2015.
[43] I allow you a discount in excess of 20 per cent, one year, reducing the sentence I must impose on you to four years.
Minimum term
[44] The Crown does not contend for a minimum period of imprisonment in excess of the statutory minimum and I do not think one is called for. The sentence I have imposed on you will suffice to serve the primary purposes of sentence: to denounce your offence and to hold you accountable for it, to deter you and others from offending in this way, and to protect the community.
Outcome
[45] In the result, I sentence you to imprisonment for four years and, because the Crown now offers no evidence on the murder charge, I dismiss that charge. Finally, because your offence involved serious violence I must give you a written warning, which you will receive after I have sentenced you. That warning is essentially in these terms.
[46] If you commit a violent offence in the future, other than murder, and are sentenced to imprisonment, you must serve that sentence without parole or early release. If you should be convicted of murder and sentenced to life imprisonment, you must serve that sentence without parole unless that is manifestly unjust and
subject always to any mandatory minimum term.
P.J. Keane J
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