R v DP
[2015] NZHC 1796
•30 July 2015
INTERIM ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 286
CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-204-187 [2015] NZHC 1796
THE QUEEN
v
DP
Hearing: 30 July 2015 Appearances:
K Raftery for the Crown
M N Pecotic and J-A Kincade for the PrisonerSentence:
30 July 2015
SENTENCING NOTES OF LANG J
Counsel/Solicitors:
K Raftery, Crown Solicitors, Auckland
M N Pecotic, Barrister, Auckland
J-A Kincade, Barrister, Auckland
R v DP [2015] NZHC 1796 [30 July 2015]
[1] DP, you appear for sentence today having been found guilty by a jury on a charge of manslaughter. As I am sure you are aware, that charge carries a maximum sentence of life imprisonment.
[2] On 29 July 2015 I heard an application by your counsel for an order that your name be suppressed permanently. I declined that application and directed that your name could be published as from sentencing today.1 You have exercised your right to appeal against that decision, and of course there is now a statutory period of suppression so your name cannot be published in relation to the sentencing today.2
Whether or not it can be published in the future will depend on the outcome of the appellate process.
Background
[3] The manslaughter charge was laid after you and your 12 year old associate attempted to rob a dairy in Henderson early on the morning of 10 June 2014.
[4] The background to the matter is that you were living with your mother in a house in downtown Henderson. That address was frequented by people who were involved in the sale and consumption of drugs. You yourself were involved in that type of activity at the time.
[5] I will go into your background in a little greater detail shortly, but for present purposes I propose to set out the bare essentials of your offending. On the morning of 10 June 2014 you and your associate were egged on by another older resident of the property to carry out some form of robbery or burglary. It seems that you left the property with the intent of stealing shoes from a shoe shop in downtown Henderson. That shop had been the subject of a burglary some days earlier, and there was a feeling that it may still be insecure. When you left the house you took with you a sports bag. That belonged to another person at the address. Inside the sports bag was a lethal looking knife. It is not clear exactly when you became aware of the
existence of the knife. Logic would suggest you probably looked in the bag before
1 R v DP [2015] NZHC 1765.
2 Criminal Procedure Act 2011, s 286.
you took it from the house. Certainly, however, you knew the knife was in the bag before you got to the dairy.
[6] When you left the house you also took with you a metal pole. The evidence at trial suggested that this was to be used initially for the purpose of breaking a window so as to enable you to gain entry to the shoe shop. You and your associate then walked down to the shoe shop. You were captured on CCTV video cameras at that time carrying the pole as you were walking down the street. For whatever reason you elected not to take anything from the shoe shop. You then turned your attention to the dairy across the road. You and your associate went over the road to the dairy. You went into it on two separate occasions. I am satisfied that you were using these visits as an opportunity to scope out the lie of the land. You then entered the dairy on a third occasion. You were in the dairy on this occasion for something over one and a quarter minutes. You walked into the shop and your associate stood in the doorway holding the pole. The CCTV footage from inside the dairy does not show the knife during the initial part of this incident. It seems that you either had it in your pocket or in the sports bag as you walked in to the dairy.
[7] The first part of the attempted robbery, and that is what I am satisfied it was, involved you talking to the shop keeper, Mr Kumar. This seems to have been a relatively restrained conversation. You did not produce the knife at this stage and there were no overtly threatening gestures towards Mr Kumar. The content of this conversation is not known. However, I am satisfied that during the conversation you were asking Mr Kumar for money. That fact is borne out because either you or your associate at some stage during this incident called out “Give us the money”. I have no doubt that you were there to get money rather than goods from the shop.
[8] As I have said, matters initially proceeded on a relatively restrained course. There was no suggestion that Mr Kumar initially thought that he was under severe threat from either you or your associate. He certainly did not use a panic button that was available to him. Instead he adopted a ploy that his wife confirmed at trial they had devised to deal with young trouble makers such as you. This involved bringing out a phone and showing it to the trouble makers so as to persuade them that the police were about to be called. The CCTV camera footage shows Mrs Kumar
coming into the shop from the rear of the premises and then returning back to the rear of the shop. She said that this was to accede to a request by her husband that she get the phone. By this stage you were at the end of the shop counter, leaning against the counter. The knife had not yet been produced. Mrs Kumar then walked back into the shop holding the phone up in the air for you and your associate to see. At that point things changed dramatically. You immediately produced the knife and you brandished it in an extremely threatening manner towards Mrs Kumar. You also knocked the phone out of her hand. At this point the CCTV footage shows Mr Kumar beginning to walk out from behind the counter where he had been up until this point. You then turn your attention to him, and you walk behind the counter brandishing the knife at him in an extremely threatening manner. You effectively drove him into a corner of the shop behind the counter. At that point the CCTV footage shows Mr Kumar bending down to pick up a silver pole that was on the floor behind the counter. He then raises this towards you. At or about this time you endeavour to land several blows with the knife.
[9] Ms Pecotic has endeavoured to persuade me that the jury may have believed that you were acting in defence of yourself at this time. Can I just say that I reject that emphatically. Mr Kumar’s actions up until this point are those of a man completely on the defensive, being driven into a corner of the shop by a person wielding a knife aggressively at him. I have no doubt at all that his actions were completely defensive. They were based on a desire to provide some form of defence against you and your knife. In her submissions Ms Pecotic suggests that Mr Kumar may have struck you several times with the pole. The CCTV footage certainly does not show that. The most that it shows is him presenting the pole towards you. In any event you struck two blows at this time. They caused superficial lacerations to Mr Kumar’s shoulder and abdomen.
[10] From that point on Mr Kumar tried to push you out of the shop. He moved towards you and you edged out past the end of the counter into an open space. At this point Mr Kumar was holding you by the shoulder. I am satisfied that he was trying to keep you away from him. You were endeavouring to get away. It is at this point that you inflicted the fatal wound. You stabbed Mr Kumar in the neck with the knife. Very shortly after that you left the premises, and you and your associate ran
back to your house. Mr Kumar was able to walk for a few paces before falling to the floor. Unfortunately, however, the wound that he had suffered was unsurvivable. He bled to death within a matter of minutes.
The background in greater detail
[11] Now those are the bare facts surrounding your offending, but in order to understand both the offending and the jury’s verdict it is necessary to go much further back than 10 June. The story really begins before you were born. The evidence at trial confirms that your mother drank alcohol and consumed drugs heavily whilst she was pregnant with you. This has produced in you some features of children who have defects caused by foetal alcohol syndrome.
[12] Your early childhood was turbulent in the extreme. You were exposed to excessive consumption of alcohol and drugs within your family environment. You also moved from school to school on a regular basis. Then in 2009 when you were eight years of age another significant event occurred. At this time you were struck by a vehicle while you were crossing a pedestrian crossing. This caused you to be thrown in the air and to land on your head. You suffered a significant injury to the side of your face and a fracture to your skull. The incident also left you with permanent brain injury. The evidence given by Dr McGinn at trial was to the effect that an injury of this type required intensive therapeutic and rehabilitative intervention. She said that an adult would be off work for about two years as a result of such an injury. As a bare minimum you ought to have been kept in a secure environment with very little outside stimuli. Instead you were returned to school just two weeks after the incident. Your mother then continued an established trend of moving you from school to school. During the trial I heard evidence that you had attended a large number of schools during the years leading up to this incident. This meant that the schools you attended were not aware of the existence of your traumatic brain injury, and were not aware of the effect that it would have and the needs you would have in a rehabilitative and educative sense.
[13] By the time of this offending you had virtually given up going to school. You were spending a large amount of time with friends and associates. You had already
become accustomed to using alcohol and drugs from an early age. You were addicted to synthetic cannabis. Your mother endeavoured to deal with this problem by providing you with real cannabis. There can be no doubt from the evidence given at trial that the house in which you were living at the time of the offending was no more than a den associated with drug consumers and drug dealers.
[14] On the night before the offending you had stayed up late. You had consumed drugs and then you had gone to sleep in the living room. Your associate had gone to sleep in your bedroom because he was not supposed to be at the house. During the early hours of the morning your associate and another older person began talking about committing some form of burglary or robbery. I am satisfied that the older person egged on your associate and taunted him when he showed any signs of weakness. Your associate ultimately woke you up and presented you with the idea of the offending. I am satisfied that you were not initially a willing participant but eventually you elected to go on with it. You were certainly a willing participant as you walked down the street carrying the pole and at the time when you walked into the dairy carrying the knife.
[15] The relevance of the background is this. In my view it explains the jury’s verdict. The Crown put its case to the jury under s 168 of the Crimes Act 1961. This required it to prove that you intended to cause Mr Kumar really serious bodily harm for the purpose of carrying out the robbery or facilitating your flight from it. The jury’s verdict means it was not satisfied beyond reasonable doubt that you did intend to cause Mr Kumar really serious bodily injury when you stabbed him in the neck.
[16] This verdict is based in my view on Dr McGinn’s evidence that your mental state by the time of the offending was such that you were extremely vulnerable to complex factual situations. She points to the fact that you were tired as a result of the events of the night before and that the situation became complex as soon as Mrs Kumar came into the dairy holding up the phone. Dr McGinn said that in complex situations you would have a great deal of difficulty processing information, and you would have very limited ability to make appropriate decisions. I consider that the situation in the dairy became extremely complex for you from the moment Mrs Kumar came out brandishing that phone. As a result I am satisfied that you reacted
in an impulsive and instinctive way with little or no thought for the consequences of what you were about to do. From that point on you brandished the weapon, and when you lashed out at Mr Kumar it was only a matter of luck whether or not you struck him a lethal blow. The first two blows were not lethal but the third was. So I am satisfied your brain injury was a significant underlying factor in your offending and I consider the jury’s verdict reflected that fact.
Sentencing Act 2002
[17] I need to select a starting point that reflects the overall gravity of your offending. In selecting that starting point I need to have regard to the purposes and principles contained in the Sentencing Act 2002. Several of those are relevant in the present context. In any case involving the death of a human being, particularly where that occurs in the context of an attempted robbery, issues of deterrence, denunciation and the need to hold the offender accountable are to the forefront.
[18] Mr Kumar, like many shop keepers and owners of small businesses, was in a vulnerable situation. He and his wife worked long hours. They were often required to be open at times when other businesses weren’t open. They were required to be open in the early hours of the morning and late at night. Those are vulnerable hours for a shop keeper. When young people armed with knives go into shops and demand money from shop keepers they create a situation of very real risk. The risk is that if the shop keeper resists, then trouble can occur. A weapon that might only be taken into the shop to scare suddenly becomes a weapon of choice. The CCTV footage makes it clear that Mr Kumar did object to giving you money. He was entitled to say “No, you are not having my money”. He then ran the risk that you would pull out a weapon and that is exactly what you did. The weapon that you took to scare suddenly became a lethal weapon in your hands. That type of offending requires a deterrent sentence.
[19] Secondly, it is important that I impose a sentence that is broadly consistent with those imposed in other similar cases. I say “broadly consistent” and use the word “similar” because in this particular area no two cases are ever the same.
Nevertheless other cases provide an important guideline as to the range within which the appropriate starting point must be selected.
[20] Thirdly, I need to take into account the effect of the offending on your victims. The most obvious victim of course is Mr Kumar. He has lost his life. He has lost the ability to remain with his family for the duration of his lifetime. That is the ultimate price any victim of criminal offending can pay.
[21] There are other victims here too. Mr Kumar’s family are the most obvious of these. They were obliged to endure the criminal trial process. They were here throughout your trial. They observed everything that happened. They were forced to relive the final events of their loved one’s life on several occasions as it was portrayed through the CCTV footage. Their grief and distress during the trial tells volumes about the way in which your offending has affected them. They have chosen not to provide victim impact statements because they do not believe that they can add anything further or meaningful to this process. But having observed them during the trial, I know that they are suffering extreme grief. They have lost a loving husband, father, friend and companion. They will never be able to replace Mr Kumar. They will not be able to live their lives as they previously were.
[22] The ripples of this type of offending go wider, because there are other victims in the community. Small shop keepers will now take additional precautions because they will be concerned about this type of event. So offending such as this has a ripple effect and a wide circle of victims.
[23] The other factor that I need to take into account in setting a starting point and end sentence is the need to impose a sentence that provides for your rehabilitation and re-integration into the community. That is a very real issue in the present case because you are just 14½ years of age. You have many years ahead of you in the community. The sentence needs to ensure that you have the ability to rehabilitate yourself and become a worthwhile member of our community.
Starting point
[24] In any case involving manslaughter the Court must be guided by the sentences imposed in other cases. The Court of Appeal has said on many occasions there can be no tariff or guideline judgment of the court for this type of sentence because the circumstances in which it occurs can vary so widely.3 Both counsel have provided me with a large number of sentencing cases where offenders have been sentenced for the crime of manslaughter.4 Many of these are of little assistance because they relate to incidents involving spontaneous street violence or spontaneous violence at social events. For that reason they are not directly applicable to your case. Nevertheless they show that the starting point to be adopted in manslaughter cases where a weapon is involved will generally be in the range of five to nine years imprisonment.
[25] The Crown seeks to rely on the well known case of R v Rapira.5 In that case six offenders were sentenced for their respective roles in the killing of a pizza delivery man. Two of the defendants in that case were found guilty of murder. The remainder were found guilty of manslaughter. Bailey Kurariki was convicted of manslaughter as a party. His role had been to act as a decoy to lure the pizza delivery man into the address. The sentencing Judge had adopted a starting point of
10 years imprisonment and the Court of Appeal upheld this as an appropriate starting point. The Crown relies largely on this case to submit that your offending should attract a starting point of 10 years imprisonment.
[26] I do not accept the Crown’s submission on this point. I consider that the Rapira case is in a different league for several reasons. First it involved extensive premeditation and planning by a large number of people. Secondly it was a case of some complexity with different people having different roles to play. Thirdly the two principal offenders were convicted of murder. I do not gain a great deal of
assistance from that case.
3 R v Edwards [2005] 2 NZLR 709 (CA).
4 These include R v RJN HC Hamilton, CRI-2009-019-9786, 30 September 2010; R v Matautia & Laing CRI-2006-092-13486, 29 November 2007; R v Rairaru HC Rotorua CRI-2004-077-1667,
5 August 2005; R v Ames HC Rotorua CRI-2008-263-19, 30 October 2009; and R v Daniel Smith
[2014] NZHC 2091.
5 R v Rapira [2003] 3 NZLR 794 (CA), (2003) 20 CRNZ 396.
[27] The Crown also submits that some assistance can be derived from cases involving the aggravated robbery of small retail premises.6 It points out that in the guideline judgment of the Court of Appeal in that area, R v Mako, the Court of Appeal identified different types of aggravated robberies that will attract different starting points.7 In the case of a robbery of a small retail shop such as a dairy, the Court said the starting point will be around four years imprisonment but where the shop keeper is confined or where the robbery is particularly bad a sentence of up to six years imprisonment may be appropriate.8 I agree that the tariff relating to aggravated robbery cannot realistically be applied in the present context. You were never charged with aggravated robbery, partly no doubt because nothing was ever taken as a result of the incident that led to the charge. Nevertheless, I gain some assistance from the starting points indicated in Mako because this was an attempted robbery in which weapons were taken to the premises. Given the fact that Mr Kumar’s death ensued, I consider a starting point in excess of six years imprisonment must be selected.
[28] The aggravating factors over and above the death of Mr Kumar are of course the fact that a lethal weapon was used to strike a vulnerable part of the body, together with the fact it occurred within the context of an attempted robbery. Although the level of intention was low, nevertheless those factors persuade me that a starting point of seven and a half years imprisonment is appropriate.
Mitigating factors
[29] I now need to consider the extent to which that starting point should be reduced to reflect mitigating factors personal to you. The first and most obvious of these is your age. The Court of Appeal in Churchward v R provides an extensive discussion of the way in which youth may impact on the sentencing process9. The Crown also accepts that a discount must be given to reflect this fact. Having said
that, this was very serious offending and the Court of Appeal acknowledged in
6 R v Tai [2010] NZCA 598.
7 R v Mako [2000] 2 NZLR 170.
8 At [56].
9 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].
Churchward that in cases involving very serious offending a more limited weight may need to be given to the factor of youth.10
[30] There is also the factor of your traumatic brain injury. The courts have taken that type of factor into account in several ways. First, it may have had a causative impact on the offending for which the offender is being sentenced. That is obviously the case here. Secondly, it may mean that a sentence of imprisonment will be particularly difficult for the offender to cope with.
[31] I consider that limited weight should be placed on this factor for sentencing purposes. I say that because I am satisfied that the impact of your traumatic brain injury has already had a large impact in your case by virtue of the jury’s verdict. Had it not been for the effects of your injury that were explained to the jury, I have no doubt that you would have been convicted of murder. The fact that you were convicted of the lesser charge reflects the fact that the jury took into account the traumatic brain injury. Nevertheless it must be given some recognition because it will make life more difficult for you from this point on.
[32] Finally, your counsel has suggested that you had at some stage offered to plead guilty to a charge of manslaughter. No written material has been placed before me to confirm this fact, and I proceed on the basis that it may have been some form of informal suggestion made between counsel. In the absence of an offer being made in an unqualified way, I am not prepared to place great weight on that.
[33] Taking into account your age and the traumatic brain injury, I consider that a discount of 20 per cent, or 18 months, is appropriate. This leads to an end sentence of six years imprisonment.
Minimum term of imprisonment
[34] In any case where the court sentences an offender to more than two years imprisonment it has the power to impose a minimum term of imprisonment.11 This
means it can extend the period an offender must serve in prison before he or she is
10 At [84].
11 Sentencing Act 2002, s 86.
eligible to apply for parole. The Court may only take that step where it is satisfied that the ordinary parole provisions would not be sufficient to satisfy or reflect certain specified factors. These are the need to deter the offender and others from conduct of this type, the need to denounce the offender and the need to hold the offender accountable for his or her offending. The fourth factor is the need to protect the
community.12
[35] I consider that the nature of this offending is such that all four factors are engaged. The most important, however, is that of the need to protect the community. I say this because the material that is before me makes it clear that your head injury makes you vulnerable in times of stress or complexity to act impulsively or instinctively. Your present offending is proof of that. The danger for you in the future is that you may get involved in similar type of activity in the event that you again become involved in the consumption of alcohol or drugs. The consumption of alcohol or drugs is a large factor, I am satisfied, in your offending. The protection of our society and indeed your own protection, in my view, can only be met by assuring that you are in a safe and secure environment for the next few years.
[36] The material before me makes it clear that you have done well during your year at the youth justice facility. You are attending school regularly. You are playing sports and at long last you are leading what seems to be a normal life. You are currently away from drugs and alcohol and you are away from criminal associates who may be a negative influence on you. I consider that it is going to be essential for you to remain in that type of environment for some time in order to give you and society the best possible chance that you will not come out of prison and re-offend again in the future.
[37] Ultimately of course the decision about your date of release will be one for the prison and parole authorities. They will no doubt make that decision cautiously. One of the most important factors, as Dr McGinn points out in her most recent report, is that you are going to need to have a transition into the community. That transition is going to have to be very carefully managed. Ordinarily a young
offender is released into the support network provided by his or her wider family.
12 Section 86(2).
For obvious reasons that support network may not be available to you. So it is likely that the State will be required to ensure that a suitable support network is placed around you when you are released. I consider, however, that the need to keep you in an environment where you can continue to develop and where you can be kept away from drugs, alcohol and negative influences is essential if you are to have a chance of leading a worthwhile life in the community in the future. For that reason I propose to impose a minimum term of imprisonment of three years and three months. By my reckoning that will still enable the prison and parole authorities to consider your situation before you turn 17 years of age.
[38] Dr McGinn expresses the opinion that it would be potentially disastrous for you to be transferred into an adult prison. She is concerned that such a move may undo all of the good work that has been done to date, and that will no doubt be done over the next few years. I endorse that view. If at all possible I would hope that the prison authorities can see a way to keep you in the youth justice facility until such time as you are able to be released into the community.
Sentence
[39] Stand please.
[40] On the charge of manslaughter you are sentenced to six years imprisonment. You are directed to serve a minimum term of three years and three months before
being eligible to apply for parole.
Lang J
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