R v De Wes HC Gisborne CRI-2006-016-003323

[2011] NZHC 887

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2006-016-003323

THE QUEEN

v

ARNOLD RUKA DE WES

Hearing:         29 July 2011

Counsel:         S Manning for Crown

L O Smith for the Prisoner

Judgment:      29 July 2011

SENTENCE OF POTTER J

Solicitors:           Crown Solicitor, Gisborne – [email protected]

Copy to:            L O Smith –  [email protected]

R V DE WES HC GIS CRI-2006-016-003323 29 July 2011

Introduction

[1]      Arnold De Wes: You are before the Court for sentencing on a charge of manslaughter.  You were found guilty following trial by jury in the High Court at Gisborne, this Court.

[2]      The indictment originally charged Mr De Wes and his co-offender Thomas Kaika with the murder of Kevin John Collier.  The Crown accepted a plea of guilty to manslaughter from Mr Kaika and amended the charge against Mr De Wes to one of manslaughter.

[3]      The maximum penalty for manslaughter is life imprisonment.  Like murder the offence of manslaughter involves the killing of another human being and our law imposes the same maximum penalty of life imprisonment for both offences.

Factual background

[4]      The facts as they emerged in evidence at trial were that Mr De Wes, Mr Kaika and the deceased Mr Collier were friends or long term acquaintances who lived in the Te Araroa area.  At the time of his death Mr Collier was occupying a caravan on Mr Kaika’s property.  Mr Kaika lived in a bach on the property.

[5]      Between 24 and 26 October 2006 Mr De Wes and Mr Kaika travelled from Te Araroa to attend a tangi at a marae in Tikitiki.  Mr Collier went with them.  They helped in the kitchen.  After the tangi there was a function at the Tikitiki RSA Club for the helpers.  Mr Collier had previously been banned from the RSA Club so the three men could not enter.   Mr Collier gave Mr De Wes his Eftpos card and he purchased two dozen bottles of beer from the RSA.

[6]      They then returned to Te Araroa in Mr De Wes’s utility truck. As they arrived they met Mr De Wes’s parents who were travelling to Gisborne to attend a meeting about land matters.  Mr De Wes considered it important that he also attend.  He and Mr  Kaika  did  not  want  Mr  Collier  to  go  with  them  because  apparently  they

considered he was being a nuisance but ultimately they took him.  When they got as far as Ruatoria they met up with some other people they knew.  Then they returned to Te Araroa. They did not go to Gisborne.

[7]      At some point on the journey back to Te Araroa there was an incident in which Mr Collier was assaulted.  He was removed from the cab of the utility and placed on the tray of the truck together with  some dogs that had been present throughout the journey.  The three completed the journey back to Te Araroa with Mr Collier lying on the tray of the truck.  Back at Te Araroa Mr Kaika, Mr De Wes or both of them pulled Mr Collier off the tray of the utility.  At some stage Mr Collier was severely beaten again.  He was dragged along the grass and through the bach and eventually put on one of the bunks in the caravan that he had been occupying. The door of the caravan, usually left open, was then tied with bail twine.  Mr Kaika went to sleep in his house and Mr De Wes went in search of a dog which had disappeared off the truck.

[8]      On the following day a neighbour, Mr Wanoa, came to Mr Kaika’s property and talked to Mr De Wes who was having a cup of tea.  He, Mr Wanoa, asked where Mr Collier was.  Mr De Wes replied that he had last seen him in Ruatoria where he was hitch-hiking.  Mr Wanoa then entered the caravan after noticing and undoing the bail twine.  He found Mr Collier’s badly injured dead body wrapped up in a sheet on a bunk in the caravan.  He immediately went to Te Araroa to alert the police.  They attended the scene.

[9]      Mr De Wes in the intervening period had been to his family’s property not far away where he had washed his clothe, had a shower and stayed overnight.

[10]     When they came to the property the police noticed that there was no tray on Mr De Wes’s utility truck.  He told the police, in response to their inquiries, that he had taken it off a few weeks before and that his dogs could stand on some logs that he had put in place instead.  Shortly afterwards, however, police found two parts of the tray hidden in a gorse bush on the Kaika property.  Mr De Wes then admitted that he had removed the tray, he said, because it had some of Mr Collier’s blood on it. He admitted to the police that he had twice jolted Mr Collier with his elbow on the

journey and  pushed  him  on  to  the tray of the vehicle.    However,  he generally minimised his involvement in any assault on Mr Collier.

[11]     Police found blood on the tray of the utility vehicle, inside the bach, near a water tap on the outside of the bach and on the ground around the back of the caravan.   There was blood splatter found on Mr De Wes’s clothing and  on Mr Kaika’s shoes and trousers.  Mr Kaika’s trousers were described as heavily smeared with blood.

[12]     Mr Collier was found to have sustained multiple blows to his face, head, chest, abdomen and limbs.   He had three fractured ribs.   The evidence of the pathologist, Dr Simon Stables, was that these injuries were consistent with blunt force trauma from impact from a fist or a boot and a kick or a stomp.  His evidence was that Mr Collier died as the result of a subdural haematoma combined with diffuse axonal injuries, that is separate injuries that could not have been caused by a single blow.  Dr Stables’ opinion was that death probably resulted between four and six hours after Mr Collier suffered the injuries to the head.

[13]     At trial Mr De Wes gave a different account of the events that led to Simon Collier’s death.   According to his account the beatings and injuries to Mr Collier were delivered by Thomas Kaika and another man, Kevin Orr.   On Mr De Wes’s account his participation in the events was as the driver of the utility, a by-stander and a person who tried to help Mr Collier after he was beaten.  First, by going away with the alleged aggressors to a party, giving Mr Collier a chance to recover and escape; and secondly, by trying to take him to the hospital at Te Puia, but, according to Mr De Wes, he was prevented by threatened violence from Thomas Kaika from doing so.  Clearly the jury did not accept his version of events.

Victim impact statement

[14]     Ms Fraceen Collier is Mr Collier’s sister.   She has filed a victim impact statement in which she says that Mr Collier was a harmless man and his death has affected their whole whanau.  He had two pre-school children when he died and his older daughter had only just met him.  She speaks of the waste of life, particularly in

that Mr Collier’s death could have been avoided had he been taken promptly for hospital treatment after he was injured.

Personal circumstances

[15]     I have been provided with a pre-sentence report for sentencing purposes.

[16]     Mr De Wes is aged 58.  Since the incident that resulted in the death of Simon Collier in 2006, Mr De Wes had spent time both in custody and in the Purehurehu Mental Health Unit in Porirua.  Mr De Wes describes himself as OneOne or Tipua. He has resided on the east coast of the North Island between Opotoki and Gisborne for much of his life.  He has been married four times.  His current wife, whom he married about three years ago, is supportive of him and is in Court today.  He has children and also adopted children with whom he says he maintains contact.

[17]     Mr De Wes has previous convictions but none for offending since the year

2000.     In  November  2000  he  was  involved  in  offending  which  resulted  in convictions  on  serious  charges  including  kidnapping,  threatening  to  kill,  male assaults female and firearms charges.  He was sentenced to four years imprisonment. His only other conviction for violent offending was in 1990 when he was sentenced to three years ten months imprisonment on a charge of injuring with intent to cause grievous bodily harm.

[18]     Mr De Wes continues to maintain his innocence in respect of this offending. The probation officer states that it was therefore difficult to assess his remorse and insight  into  his  offending.    Because  he  does  not  accept  responsibility  for  the offending Mr De Wes is said to be unprepared to address causes that might have contributed to the offending through counselling or other interventions.  Given his history which shows a propensity for violence, Mr De Wes is consequently assessed as high risk of re-offending.

[19]     In  Court  today,  Mrs  Smith  counsel  for  Mr  De Wes  has  emphasised  his remorse that Mr Collier died.  She has also referred to his much improved health and in particular mental health and that he is in a stable condition assisted by the regular

taking of appropriate medication under the supervision of staff in custody and in the mental health unit.

Mental health issues

[20]     Mr  De Wes  has  been  diagnosed  as  having  delusional  psychotic  disorder (schizophrenia and bipolar disorder).   He is on medication and prison staff have noted that during his period in custody he has improved remarkably.

[21]     Three  psychiatric  reports  were  prepared  under  the  Criminal  Procedure (Mentally Impaired Persons) Act 2003 in respect of Mr De Wes prior to trial.  All expressed the opinion that he was fit to stand trial.  The reports were prepared by Dr D G Chaplow dated 9 May 2011, Dr Nick Judson dated 17 May 2011 and Dr Greg Young dated 19 May 2011.  I am familiar with those reports.  No further reports have been prepared specifically for the purpose of sentencing.  The psychiatrists reported that although Mr De Wes has a history of delusional psychotic disorder his condition has been relatively stable over recent months in custody, and he presented well on his current medication.  The psychiatric history of Mr De Wes shows that without appropriate stabilising medication he will present with delusional and bizarre ideas and behaviour.  Dr Chaplow considered that Mr De Wes’s history of criminality was in the context of his mental illness rather than being related to drug or alcohol consumption.  Mr De Wes confirms that he does not take drugs other than prescribed drugs.

Purposes and principles of sentencing

[22]     Simon Collier lost his life at the hands of Mr De Wes and Mr Kaika.  The primary principles of sentencing are denunciation, deterrence and protection of the community.    The  Court  must  take  account  of  the  degree  of  culpability  of  the offender, the seriousness of this type of offence (it is indeed a very serious offence), consistency in sentencing levels and must also seek to impose the least restrictive outcome that is appropriate in the circumstances.

Aggravating and mitigating factors

[23]     Although there was no evidence of any weapon, Mr De Wes and Mr Kaika used deliberate and repeated physical violence against Mr Collier.  Then he was left to die rather than being taken to hospital when clearly he urgently required medical attention following the beating that had been delivered to him.

[24]     I accept that these events were not premeditated.  Rather, they seem to have occurred in response to a high level of irritation experienced by Mr De Wes and Mr Kaika from the actions of Mr Collier when all three had been drinking alcohol over a period.

[25]     In  relation  to  Mr  De  Wes  personally,  his  previous  convictions  are  an aggravating factor.  I consider Mr De Wes’s mental illness a mitigating factor to be taken into account on sentencing.

Sentencing of Thomas Kaika

[26]     As I have said Thomas Kaika entered a guilty plea to manslaughter.  He was sentenced by Lang J in March 2008.[1]    Mr Kaika was sentenced on the basis of a factual scenario very similar to that set out above although at the time the Judge did not, of course, have the benefit of having heard evidence adduced at trial.  Mr Kaika did not give evidence at the trial of Mr De Wes.

[1] R v Kaika HC Gisborne CRI-2006-016-3323, 17 March 2008.

[27]     Lang J concluded that both Mr Kaika and Mr De Wes became progressively more frustrated with Mr Collier.   He considered it was a developing situation in which there was no element of premeditation.   He said it was impossible to distinguish the respective parts played by the two men in causing Mr Collier’s death. He accepted that Mr Kaika did not intend to kill Mr Collier but to give him a hiding to teach him a lesson for being so annoying on that night.

[28]     The Judge referred to the fact that Mr Kaika was found unfit to plead and incapable of instructing his counsel shortly after arrest and that he had a history of

mental instability and delusional thinking.  He concluded that Mr Kaika’s thoughts were severely disordered at the time which was likely to have affected his insight into and the impact of his offending.

[29]     The Judge considered in some detail Mr Kaika’s offending history which was more lengthy but slightly less serious than that of Mr De Wes.  The Judge said that Mr Kaika’s history of violent offending would normally operate to increase the starting point by approximately two years but he accepted a submission that Mr Kaika had made an effort over the previous eight years to curb his violent offending and for that reason he applied an increase of twelve months to the revised starting point of seven years imprisonment, reaching a final starting point of eight years imprisonment.

[30]     On account of Mr Kaika’s guilty plea he allowed a discount of twenty five

per cent or two years. The end sentence was therefore six years imprisonment.

[31]     I  make  no  specific  reference  to  other  authorities  referred  to  by  defence counsel given the relevance and importance of the sentencing process and end sentence imposed on Thomas Kaika by Lang J.  I simply mention that the authorities referred to support the approach to sentencing which I propose to follow.

Submissions

[32]     Counsel for both parties accept that the approach to sentencing adopted by Lang J in respect of Thomas Kaika is appropriate also in respect of Mr De Wes.  I agree with that.  It is necessary in order to achieve consistency in sentencing.  But of course Mr De Wes is to be sentenced following trial, and there can be no discount for a guilty plea as was allowed to Mr Kaika.

[33]     Lang J said it was impossible to distinguish between Mr De Wes and Mr Kaika in terms of culpability.  Nothing emerged at trial which persuades me to differ on that matter.  Mrs Smith suggested in her written submissions that evidence about the amount of blood on Mr De Wes being less than that found on Mr Kaika and the absence  of  any  marks  or  abrasions  on  the  hands  and  feet  of  Mr  De  Wes,

demonstrated that Mr De Wes played a lesser part in the assault.  I cannot accept that submission.  Clearly both men were involved in the serious assaults of Mr Collier. The amount of blood detected on each does not indicate the extent of their active involvement in the assaults.  Mr De Wes washed his clothes after the attack and then lied to the police about the reason for having a shower and about the removal of the decking  from  his  utility.    The  jury  rejected  the  account  of  Mr  De Wes  which excluded him from involvement in the beatings.  The pathological evidence was that the deceased had received multiple blows to his head and body caused by punching and kicking or stomping.  The boot prints and palm print of Mr De Wes were found inside the caravan.   So the inference was clearly available that he was the person who tied the door with string after placing the severely injured body of Mr Collier inside.

[34]     On the basis of the evidence, I conclude that Mr De Wes was involved with Mr Kaika in the beatings delivered to Mr Collier, that their roles were indistinguishable, but that both were involved in an active way.

[35]     I take a starting point of eight years imprisonment.   I increase that starting point by one year on account of Mr De Wes’s history of violent offending.   On account of his mental illness which I treat as a mitigating factor, I allow a discount of one year from the revised starting point of nine years, to reach an end sentence of eight years imprisonment.

Result

[36]     Please stand Mr De Wes.

[37]     Mr De Wes: the sentence imposed on you for the manslaughter of Simon

Collier is eight years imprisonment. [38]        You may stand down.