R v Capper
[2022] NZHC 3437
•15 December 2022
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2021-063-1083
[2022] NZHC 3437
THE KING v
WILLIAM JAMES HENARE CAPPER
Hearing: 15 December 2022 Appearances:
A Gordon for Crown
R Mansfield KC and H Stuart for Defendant
Sentence:
15 December 2022
SENTENCING REMARKS OF LANG J
Solicitors:
Crown Solicitor, Rotorua
R v CAPPER [2022] NZHC 3437 [15 December 2022]
[1] Mr Capper you appear for sentence today having pleaded guilty to a charge of manslaughter.1 The maximum penalty for that offence is life imprisonment.
Background
[2] You have pleaded guilty on the basis of an agreed summary of facts. This records that on the evening of 1 April 2021 you were drinking with three associates at an address in Taupo. These included Mr George Cross, who was your flatmate at the time and was ultimately the victim of your offending. The other two men at the address were your adopted brother Mr Hamish Vickers and another person, Mr William Booth.
[3] Shortly after 11 pm an altercation occurred between Mr Vickers and Mr Cross. The summary does not record what the cause of the argument was. However, it resulted in Mr Cross punching Mr Vickers. The two men then ended up on the kitchen floor grappling with each other. When Mr Vickers freed himself, he picked up a kitchen stool and struck Mr Cross with it. Mr Cross blocked this blow with his arm.
[4] Up until this point you had not been involved in the incident. However, you picked up a hammer and endeavoured to strike Mr Cross on two occasions with it. It is not possible to determine whether the blows connected and, if so, whether they caused Mr Cross any injuries. The second blow caused the head of the hammer to detach, and it landed on the kitchen bench.
[5] At this point Mr Vickers got on top of Mr Cross and held his arms down. Mr Vickers also told Mr Cross to calm down. You then picked up a large kitchen knife from a knife block on the kitchen counter. You walked over to Mr Cross, who was still being held down by Mr Vickers. Mr Booth grabbed you by the shoulder and told you to drop the knife. Rather than drop the knife, you struck Mr Cross on the right leg on several occasions with the knife and told him “that’s what you get”.
[6] When Mr Vickers realised Mr Cross had been injured, he told you to get a towel. You then got two towels and Mr Vickers used these to apply pressure to the
1 Crimes Act 1961, ss 160(3) and 171.
wounds to Mr Cross’ leg. Unfortunately, however, the loss of blood from the wounds caused Mr Cross to die.
[7] Mr Cross was later found to have sustained five stab wounds. Four of these were to his right thigh and the remaining wound was to his right leg. Three of the wounds were deep, penetrating six, 10.5 and 12.5 centimetres respectively. One of more of the wounds severed a major artery and caused the loss of blood that led to Mr Cross’ death.
Starting point
[8] The first point in the sentencing process is to set a starting point for the sentence to be imposed on you. This recognises the aggravating features of the offending but does not take into account factors that are personal to you.
[9] There is no tariff or guideline judgment of the Court of Appeal to assist in fixing the starting point on a charge of manslaughter. This is because the offence may be committed in so many different ways. In order to fix an appropriate starting point it is necessary to have regard to starting points adopted in other broadly similar cases. I use the words “broadly similar” advisedly because the facts of cases always differ.
[10] As a form of cross-check in this context the courts also have regard to factors identified in a case called R v Taueki.2 Care is needed when undertaking this exercise, however, because that case related to the offence of causing grievous bodily harm with intent to do so. By definition a charge of manslaughter reflects the fact that the victim has died rather than suffered serious injury. On the other hand, a charge of manslaughter may apply to situations where there is no intention to cause really serious bodily injury. By amending the charge from murder to manslaughter in the present case the Crown has acknowledged that you did not intend to cause Mr Cross’ death and did not appreciate the risk that death may result from your actions in stabbing him in the leg with the knife.
2 R v Taueki [2005] 3 NZLR 372 (CA).
[11] The aggravating feature of your actions is that you were prepared to use a lethal weapon to inflict no fewer than five stab wounds to Mr Cross’ leg. You were prepared to do that in circumstances where Mr Cross was effectively defenceless and vulnerable because he was being held down by Mr Vickers. Stab wounds to the leg are not as inherently dangerous as those to more vulnerable parts of the body such as the chest or neck. However, the leg contains major arteries and stab wounds to this area always run the risk of significant blood loss. As in the present case, this can lead to death.
[12] I accept that your offending involved little, if any, premeditation and was largely a spur of the moment reaction to what you saw occurring. However, I do not accept that your culpability is reduced by the fact that Mr Cross threw the first punch. It is not possible to say what caused the argument between Mr Cross and Mr Vickers and it did not involve you. Furthermore, by the time you became involved Mr Cross was not posing a threat to either you or Mr Vickers.
[13] I have read several victim impact statements provided by members of Mr Cross’ whanau. You have heard two of these read to the Court today. These are heart-rending documents. They are cast in measured terms but display the hurt, anger and frustration this family feel over the fact that they were robbed of their loved one in the prime of his life. Your offending has had devastating effects for this family. It is going to take many years for them to come to terms with the fact that they have lost their loved one. You alone, Mr Capper, must bear responsibility for the suffering this family has already undergone and the fact that they will suffer greatly in the future.
[14] The Crown has referred me to several sentencing cases,3 as has your counsel.4 I do not propose to go through the detail of these but will footnote them in my sentencing remarks. They show, however, that starting points for cases involving similar features to the present will result in starting points of between five and eleven years imprisonment being selected. The Crown says a starting point of between nine and ten years imprisonment is appropriate whereas your counsel submits a starting point of no more than seven years imprisonment is justified.
3 R v Taueki, above n 1; Waipuka v R [2013] NZCA 661 at [32], citing R v Tai [2010] NZCA 598 at [12]; and R v Everett [2019] NZCA 68 at [27].
4 R v Taueki, above n 1; and R v Hohua [2021] NZHC 1242.
[15] As I have said, it is always difficult to compare other cases because they will differ factually. However, I consider the starting point suggested by the Crown to be slightly too high because most of the cases upon which it relies involve both a significant degree of premeditation and stab wounds to the chest or head. That said, it is necessary to select a starting point that recognises the number and depth of the wounds you inflicted as well as the vulnerability of your victim. Taking those factors into account, I consider a starting point of eight years six imprisonment is appropriate.
[16] I note that this would fit within the upper end of the range of starting points identified for Band 2 in Taueki.5 Band 2 applies when there are two or more aggravating factors and calls for a starting point of between five and ten years imprisonment.
Aggravating factors
[17] You have previous convictions for offending involving violence, most recently an assault on a person in a family relationship in 2020. This resulted in you receiving a sentence of eight months imprisonment. You also have other convictions for offending involving violence, all of which occurred in a domestic context.
[18] Both the Crown and your counsel suggest a modest uplift would be appropriate to reflect your previous convictions. An uplift for previous convictions may be applied where it is clear that the offender has not learned from earlier sentences imposed for similar offending. In the present case the offending is quite different from that which has occurred in the past. As a matter of principle I do not propose to apply an uplift because the context in which your previous offending occurred was so different.
Mitigating factors
[19] You are obviously entitled to credit for the fact that you entered a guilty plea to the charge of manslaughter. You entered a guilty plea on 18 March 2022 in circumstances where your trial was scheduled to commence three days later. At that stage you were charged with murder. You had offered to plead guilty to the charge of
5 R v Taueki, above n 1 at [34].
manslaughter two weeks prior to the commencement of the trial. I consider you are entitled to a discount of one year, or around 12 per cent, to reflect your guilty plea. I consider the Crown is correct when it says that, given the circumstances of your offending, it would have been open to you to offer to plead guilty to a charge of manslaughter much earlier in the piece. However, although the offer to plead guilty to a charge of manslaughter came very late, it nevertheless amounted to an acceptance of responsibility for causing Mr Cross’ death. It also saved his whanau the added ordeal of enduring a defended criminal trial in which the circumstances surrounding the death of their loved one would be played out in open Court.
[20] To assist me in considering your personal circumstances I have, in addition to the pre-sentence report, two reports prepared by a clinical psychologist and a report tendered by your counsel under s 27 of the Sentencing Act 2002. These reveal that your mother consumed considerable quantities of both drugs and alcohol during the period leading up to your birth. Your father was also a heavy drinker. He left home shortly after you were born and has never featured in your life.
[21] After your birth you were effectively adopted by your mother’s sister and her husband, who brought you up as if you were one of their own. You grew up believing your aunt was your birth mother and that your birth mother was your aunt. You did not learn the truth about your birth mother until you were approximately 11 years of age.
[22] You appear to have had a stable upbringing with your adoptive parents and there was no substance abuse or violence in the household. You also got along well with the natural sons of your adoptive parents and maintained good relationships with them. This is demonstrated by the fact that you were with Mr Vickers on the night the incident leading to the present charge occurred.
[23] In addition, you had a strong relationship with your adoptive father’s mother and spent a considerable amount of time with her during your childhood. She passed away when you were at intermediate school and it appears that you began to engage in negative behaviour at that time. Over this period you would stay with your mother during the holidays and on the occasional weekend. This proved problematic because
she was involved in several violent relationships. You witnessed episodes of violence on these occasions. Whilst staying with your mother you also began using alcohol. You then began consuming solvents and cannabis.
[24] Your schooling was affected by inattention, disruptive conduct and substance abuse. You left school at the age of 15 years without formal qualifications and started work as a screen printer at a business operated by a family friend. However, alcohol use interfered with your ability to undertake this work.
[25] Your consumption of alcohol became particularly problematic after you joined the New Zealand Defence Force at the age of 18 years. This led to you becoming involved in fights and disagreements with others. It ultimately resulted in you spending time in a military prison and being dishonourably discharged after just two years. During this period, however, you were able to attain significant qualifications as a driver.
[26] After you left the Army you obtained several jobs in the hospitality industry. In these roles you used the skills you had obtained at a training school for chefs that you attended before joining the Army. You graduated from this as a fully qualified chef. However, your excessive consumption of alcohol continued after you left the Army, and this led to you being dismissed from numerous jobs.
[27] Your abuse of alcohol also had a negative impact on your ability to form relationships. As I have already recorded, you received a sentence of imprisonment in 2021 after seriously assaulting a woman with whom you had been in a relationship for some considerable time. Although she was prepared to pursue the relationship you decided to end it because you were concerned you would become violent towards her again when drunk. Your only other relationship also lasted for a considerable period, but it was with a woman who was a heavy user of alcohol.
[28] During your teenage years there were concerns that you may suffer from Attention Deficit and Hyperactivity Disorder (ADHD). However, these were expressed at a time when you were consuming alcohol and drugs regularly and the most recent reports suggest this diagnosis may not have been accurate. There is, on
the other hand, a real prospect that you may have a predisposition to alcohol addiction because of your mother’s alcohol and substance abuse during her pregnancy with you. Importantly, however, the latest reports confirm that you do not suffer from mental health issues. This is confirmed by the fact that you have been able to obtain meaningful work qualifications and hold down positions of responsibility in the past.
[29] Mr Capper, the consistent theme that flows through all the reports is that excessive alcohol consumption is the root cause of your problems. It is also obviously a significant factor in the present offending. You express remorse, and I have no doubt that this is genuine, but this needs to be balanced against the fact that you now have a considerable history of getting into difficulties when intoxicated. It is obvious that you are at significant risk of appearing before the courts on a regular basis unless you find some way to curb your alcohol consumption.
[30] I propose to allow a discount of ten months, or approximately ten per cent, to recognise the fact that you may have been predisposed to alcohol addiction through factors beyond your control and this contributed to the present offending. This also takes into account your expressions of remorse and your expressed desire to rehabilitate yourself. Whether or not the latter comes to fruition will depend on the steps you take in prison and upon your release to address your addiction to alcohol.
[31] This means I have identified mitigating factors justifying discounts totalling one year ten months. It follows that the end sentence is one of six years eight months imprisonment.
[32] The Crown seeks a minimum term of imprisonment, but I do not consider this to be appropriate because I do not consider the prerequisites for such an order have been made out. It will be for the parole authorities to assess when you are ready to be released into the community. In making their decision they will no doubt be anxious to ensure you have taken meaningful steps to address your issues with alcohol.
Sentence
[33] On the charge of manslaughter to which you have entered a guilty plea, you are sentenced to six years eight months imprisonment.
[34]Stand down.
Lang J
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