R v Fenton

[2020] NZHC 2044

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF [REDACTED]

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-009-8306

[2020] NZHC 2044

THE QUEEN

v

LUCIAN MICHAEL FENTON

Hearing:

12 August 2020

Appearances:

B Hawes for the Crown

R Buddicom for Defendant

Judgment:

12 August 2020

[REDACTED] SENTENCING REMARKS OF OSBORNE J

Introduction

[1]    Mr Fenton, please stand. You have pleaded guilty to a charge of wounding with intent to cause grievous bodily harm. The maximum penalty for that as you will know is 14 years’ imprisonment.

[2]    I am going to shortly invite you to sit again because I need to identify the background to your offending, the facts which you have heard counsel talk about and which you will have seen in their written submissions, and importantly the reasons for the sentence I will impose on you. That will take some time.

R v FENTON [2020] NZHC 2044 [12 August 2020]

[3]Please be seated.

[4]    To consider the sentence I should impose on you, I will deal with a number of topics:

(a)First, I will refer to the facts. They will include my consideration of the victim impact statements which the victims of your offending have provided.

(b)I will turn to examine the period of imprisonment which I should impose on you. That requires me to consider, as you will have seen from counsel’s submissions:

(i)first, a starting point, that is a period of imprisonment which I consider reflects the seriousness of your crime;

(ii)secondly, personal factors about you which make your offending worse; and

(iii)thirdly, the circumstances personal to you which reduce your level of responsibility for the crime and also bring into account your guilty plea.

[5]    I should explain before I do that that latter category of matters are the circumstances personal to you rather than related to the offending, so in relation to the matters Ms Buddicom addressed me on concerning the provocation involved in the incident, I will be dealing with those in relation to the first part, the starting point sentence.

[6]At this point, I am going to summarise the facts.

Factual background

[7]    On the day of the offending, 14 September 2019, you and your partner were visiting an associate, who I will call Jamie, at his address in Christchurch. At about

8.45 pm, Ngaoa Kokaua (the victim) and a female associate parked up the driveway at the address, intending to retrieve a vehicle which belonged to the female associate. You and Mr Kokaua did not know each other.

[8]    You were leaving the house as he pulled up. As you walked past the driver’s door, Mr Kokaua asked to see Jamie. You asked who was asking, to which Mr Kokaua replied: “it doesn’t matter, I want to talk to him”.

[9]    Mr Kokaua got out of his vehicle, demanding to speak with Jamie. He followed you back towards the house, carrying a large metal wrench. You entered the house and closed the door behind you. You have explained that you locked it. Mr Kokaua smashed a panel in the door and entered the house. He said he was not going to leave until he spoke to Jamie. Jamie, who was inside the house, including with a very young child, locked himself in a bedroom. Mr Kokaua began hitting the hallway walls and the bedroom door in which Jamie was. Jamie called the police from inside the bedroom, and shouted out that he had done so.

[10]   Ms Buddicom identifies Mr Kokaua as being bigger and stronger than you. She described to me your unsuccessful attempt to restrain Mr Kokaua after he had entered the house.

[11]   You then went into the kitchen and armed yourself with a knife. You also took a bicycle wheel rim and you used that to push Mr Kokaua out of the house. Mr Kokaua retreated into the driveway, saying he was from the Mob and that they would be back every day until they got the keys to the vehicle.

[12]   Mr Kokaua walked towards his vehicle. You followed behind. When Mr Kokaua heard you come through the gate behind him, he stopped and turned back towards the house. You raised your arm, clenching the knife in one hand, and brought the knife down stabbing him. Mr Kokaua fell forward on you. You then continued to stab him.

[13]   Mr Kokaua managed to get up and back into his vehicle. He drove with his associate several blocks away but he lost consciousness and died.

[14]   As a result of the attack, he sustained in all seven knife wounds to his back, shoulder, right bicep and neck and there were as you have just heard lacerations to an eyelid. The stab wound to his lower left central neck passed downwards towards the centre of his chest for seven centimetres. It did not perforate any arteries or veins of note and did not enter the right or left chest cavity. None of the knife wounds was life threatening.

[15]   The medical evidence is that Mr Kokaua’s death was caused by a tension pneumothorax on the right side of his chest that was pushing his lung and heart towards the left side. The cause of the pneumothorax was a ruptured blister of the lung. The time of the onset of the rupture is unclear. The medical evidence is that all of the activities undertaken immediately prior to and during the stabbing could be responsible for causing the fatal tension pneumothorax.

Pre-sentence report

[16]   The pre-sentence report states that you claimed to have a limited recollection of the incident. But you did say that the situation escalated quickly and that you acted in order to protect the people in the house. That including your partner and a one year old child to whom I have referred. The report writer says you expressed remorse. You said you “never intended this to happen”. You claimed you had not used any substances over the day prior to the offending, which the Crown noted is at odds with the statement your partner made, but I put that to one side.

[17]   You are assessed as posing a high risk of further offending by reason of your history of violent offending. You are prepared to use weapons if available, having previously presented a knife. The report writer states you have some insight into your tendency towards violence. But importantly, the report writer concludes that (referring to you) — and I quote:

… he has little or no consideration for the consequences and impact on his victims as a result of his actions, with evidence in the past of blame being shifted from himself to other people and circumstances, suggesting a degree of self-entitlement, poor problem solving skills, impulsivity and the inability in making right choices.

[18]   The report suggests that your association with gangs has also had a strong bearing on your attitude to dealing with situations.

Victim impact statements

[19]   The Court has received  six  victim  impact statements from the family of   Mr Kokaua, who describe him as a loving father to his 11 children, and an uncle to others. I acknowledge the devastating effect that Mr Kokaua’s death has had on his family and friends. However, while you are being sentenced today for your attack and serious wounding of Mr Kokaua, you are not to be held responsible by this Court for Mr Kokaua’s death. I take account of the statements of the victims as compelling and understandable statements of the extent of their grief and loss.

Purposes and principles of sentencing

[20]   In sentencing you, I must have regard to the relevant purposes and principles of sentencing under ss 7 and 8 of the Sentencing Act 2002. I must impose a sentence that will hold you accountable for the harm done to your victim, to his family and to the community, to denounce your conduct, to promote a sense of responsibility for and acknowledgment of that harm, and to deter you and others from committing the same or similar offences in the future. In doing so, I must also must consider your need for rehabilitation. I must take into account the gravity of your offending and the need for sentences to be consistent.

Starting point

[21]   The maximum penalty for wounding with intent to cause grievous bodily harm as I said to you earlier is 14 years’ imprisonment.1 The guideline judgment for this type of offending as you have heard counsel refer to is R v Taueki, in which the Court of Appeal established three bands based on aggravating features:2

(a)band one: for low-level violence — the Court of Appeal stipulating a three to six year starting point;

1      Crimes Act 1961, s 188(1).

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

(b)band two: violence involving two or three aggravating features — a five to 10 year starting point; and

(c)band three: serious offending with three or more aggravating features

— a nine to 14 year starting point.

Aggravating features of the offending

[22]   I find mathematically there to be four aggravating features in your offending but I will be treating the fourth as tied up with the other three:

(a)first extreme violence, given the number of stab wounds and the areas that were targeted;

(b)secondly serious injury: although none of the stab wounds was in itself life threatening, and you are not to be held accountable for Mr Kokaua’s death, the injuries you inflicted were nevertheless very serious, as highlighted by that seven centimetre stab wound to his neck;

(c)thirdly your use of a knife, a recognised lethal weapon;3 and

(d)I add fourthly that there was also evidence that your attack was to the head as Mr Kokaua suffered lacerations to his right eyelid, but I will view that alongside the serious injury to which I have referred.

[23]   I do not accept the other aggravating feature suggested by the Crown of harm and grief for the victim’s family. As Mr Hawes for the Crown acknowledged, you are not to be held accountable for Mr Kokaua’s death and I find the harm inflicted by the stab wounds to be appropriately taken into account by the aggravating factor of the serious injury category I have referred to.

3      R v Taueki, above n 2, at [31(d)].

Mitigating features of the offending

[24]   Ms Buddicom, on your behalf, submitted as you have heard what has conveniently been referred to as provocation being present in the incident. Mr Kokaua had forced his way into the house. He had used a weapon to cause property damage, no doubt to intimidate, while vulnerable persons were hiding inside. Ms Buddicom accepted your victim was leaving the property when the offending occurred, but she emphasises the very proximity to the house and the fact that he was still carrying the wrench.

[25]   Mr Hawes on the other hand submitted as you have heard that at the time you stabbed Mr Kokaua, he had left the house, he was on the way out and was no longer posing a threat to you or the other occupants of the house.

[26]   The Court in Taueki discussed what I will call provocation as a mitigating factor in this way:4

Where the offender has been provoked, that may justify a lower starting point. It is not enough simply to claim to have been incensed by the actions of the victim or another: rather, the sentencing Judge will need to be satisfied that there was serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence.

[27]   The Court in Taueki also discussed the mitigating factor of excessive self- defence which I put to one side as counsel have both accepted it does not apply in this case.5

[28]I therefore return to the question of provocation.

[29]   Provocation was accepted as a mitigating factor in a case called Lauaki v Police.6 In that case the victim undertook an “aggressive, intimidatory and potentially dangerous course of driving” which caused the appellant to drive off the road to avoid a collision.7 The appellant then drove after the victim and attacked him. Rodney

4      R v Taueki, above n 2, at [32(a)].

5      At [32(b)].

6      Lauaki v Police HC Auckland CRI-2005-404-429, 2 March 2006.

7 At [26].

Hansen J found there was serious provocation by the victim, and took that into account when assessing an appropriate starting point.

[30]   Ms Buddicom in her submissions also cited also the case of Mareikura v R.8 There the Court of Appeal reduced the starting point from six years to five years’ imprisonment to account for the conduct of the victim. The appellant and his partner had stopped to assist the victim, who was drunk and was having trouble finding his car. The victim became aggressive, causing the appellant and his partner to back away, at which point the appellant produced a blade and struck the victim on the face. In that case the Court of Appeal stated:9

We therefore consider that the starting point must be adjusted to reflect the conduct of the victim. It was the victim who first became aggressive and confrontational. His conduct caused the appellant and his partner to back away. The appellant's response was excessive, but the significant contribution of the victim by initiating the aggression and creating the situation to which the appellant reacted is a significant mitigating factor.

[31]   I am satisfied there was an element of provocation relevant to your offending. You were understandably concerned about the safety of your partner and of the young child present in the house. The situation, essentially one of home invasion by a man carrying and using a large weapon, was undoubtedly a very tense and fearful one.

[32]   I accept Mr Hawes’ submission that in a sense the word provocation does not accurately describe the situation which confronted you once Mr Kokaua was out of the house, but I equally accept Ms Buddicom’s submission that to put a dividing line between the time inside the house and the time outside the house is artificial in the relatively short period that applied in this case. The provocative, even threatening conduct on the part of Mr Kokaua, is properly taken into account in determining a starting point.

Discussion

[33]   Mr Fenton, you heard Mr Hawes submit that your offending falls between bands two and three of Taueki. He compared your offending on that basis in the written

8      Mareikura v R [2012] NZCA 108.

9 At [13].

submissions to a street attack as described in Taueki under both bands two and three. He submitted an appropriate starting point as you heard this morning would be eight to nine years’ imprisonment. Ms Buddicom submitted a starting point in the range available to me should be seven and a half to eight years.

[34]   Few cases that come before this Court involve identical circumstances to other cases. I have nevertheless found several cases of assistance today. In R v Konui, the victim was required to leave a party after a confrontation.10 A short fight occurred between the victim and another person on the driveway. The appellant watched the fight before going inside the house and obtaining a large knife from the kitchen. He returned outside and stabbed the victim several times in the back, struck him about the head and throat, and stabbed him again in the lower back after the victim fell to the ground. The Court of Appeal there identified at least six aggravating features from Taueki, including features not involved in your case such as vulnerability of the victim and premeditation. The Court placed the offending “at least at the top end of band 2”, which would have justified a starting point of nine years.11

[35]   In R v Ramirez, the defendant met with the victim in a carpark and asked for sexual favours in return for money.12 They were not known to each other. The defendant and victim both walked towards a more secluded area, where the defendant suddenly pulled a 32 cm knife from his pocket and stabbed the victim to the throat area. The force of the stab caused the blade to break off from the knife handle. The District Court Judge in that case adopted a starting point of eight years’ imprisonment and that figure appeared to take into account, to some extent, a diagnosis of schizophrenia.

[36]   In R v Ronaki, the defendant’s brother assaulted another person at a bar, leading to a brawl.13 The defendant’s part in the brawl was limited, but while security were in the process of breaking it up, the defendant stabbed a man who was engaged in a scuffle with his brother. The stab caused the victim’s liver to be lacerated. The Court rejected the submission that the offending fell at the lowest level end of band two and

10     R v Konui [2008] NZCA 401.

11     At [12]–[14].

12     R v Ramirez [2018] NZDC 18130.

13     R v Ronaki [2019] NZDC 668.

adopted a starting point of six years. That was then reduced by six months to recognise that there was an aspect in that case of excessive self-defence.

[37]   Finally, the Court of Appeal’s decision in Mareikura (above at [30]) is relevant, as the appellant in that case was also charged with wounding with intent to cause grievous bodily harm.14

[38]   Having considered all the facts in your case and these other cases, I do consider your offending falls in the upper half of band two. It is somewhat less serious than the offending in Konui, particularly due to the element of provocation. I would place your conduct close to the level in the Ramirez case I have referred to, where the offending was similarly violent, but where the defendant was influenced by mental health issues rather than affected by provocation. The decisions in Ronaki and Mareikura are distinguishable because there were fewer aggravating features in those cases.

[39]   I consider the appropriate starting point in this case is seven years and nine months’ imprisonment.

Personal circumstances

Criminal history

[40]   You have some 50 previous convictions, including a number for violence and non-compliance offending. Ms Buddicom submitted in her written submissions that the convictions for violence are “modest” and in some cases historical. She submitted that I should not impose an uplift for previous offending. I disagree. Your criminal history demonstrates a pattern of violent offending over the years from 2008 to 2017 and warrants an uplift of at least three months. I note that none of your previous violent offending was found to be such as to warrant a sentence of imprisonment. But for that a greater uplift than three months may have been warranted. As it is, I uplift the starting point by three months which brings the starting point to eight years.

14     Mareikura v R, above n 8.

Personal mitigating factors

Personal background and deprivation

[41]   These are the factors relevant to you yourself, not the to the offending. Ms Buddicom made detailed written submissions about your personal background based on her discussions with [redacted], who acted as a guardian to you for long periods in your childhood.

[42]   As reported to me by Ms Buddicom, [redacted] said that you and your brother were removed from your mother’s care when you were approximately 18 months old. You did not have a father in your life. You were separated and placed in a succession of temporary placements. [redacted] first met you when you were only four years old. At age nine both you and your brother were moved into [redacted]’s care. She described you as a “disruptive” and badly-behaved child due to constant moving between homes.

[43]   At age 11, you were moved to a residential facility, where [redacted] said you applied yourself and made significant therapeutic steps. You graduated from that programme after two years. Unfortunately you were again moved through yet more homes. [redacted] stated that over the following years, you were subjected to physical, sexual and emotional abuse, and were introduced to drugs and gangs. You drifted between locations and jobs, resorting to crime and “self-sabotage” as a means of getting by.

[44]   As reported by Ms Buddicom, [redacted] remains a positive and supportive figure for you. You refer to her as “mum”. [redacted] stated that despite your difficult upbringing she regards you as having demonstrated your ability to display genuine remorse, care and compassion, and you have the capacity to work hard at rehabilitation.

[45]   Ms Buddicom indicated that you have commenced a historic abuse claim since your remand in custody, which she described as a positive step for you. She submitted that you should receive a credit for all these disadvantages of your upbringing.

[46]   Ms Buddicom further submitted that you should receive a discount for genuine remorse. You are willing to take part in a restorative justice programme should the victim’s family wish to do so and we have also heard read by Ms Buddicom this morning your letter of apology.

[47]   Defendants, as you will appreciate, may be given a discount for personal background where there is a connection between the social, cultural or economic deprivation of their upbringing and the offending before the Court.15 That nexus must be clear in order for any significant discount to be allowed.16 I accept that it is clear that you had a very unsettled and disadvantaged childhood in which there was no functional parenting, and you were introduced to drugs and abuse from a young age. I accept that this will have contributed significantly to the life you were leading at the time of the offence and to your ability to react appropriately to situations such as that which confronted you. That said, it is difficult to establish a clear linkage between your background and the specific decision you made to use the knife outside the house on 14 September. The background however does provide me with contextual understanding about your mistrusting and sometimes violent nature and in the circumstances of a significantly deprived upbringing does justify a level of discount for personal mitigating factors.

Remorse

[48]   You have expressed remorse, though your expressions of remorse must be weighed against what the report writer found to be a sense of entitlement which you have previously had and against that previous inclination not to take responsibility for your actions. However, I do find it relevant that you have expressed remorse in this case in appropriate terms. Your letter of apology indicates that there is a degree of acceptance on your part, a degree of awareness of steps that you need to take and of personal responsibility you have to assume. Your letter indicates to me that the rehabilitation programmes which may be available to you in prison and will certainly become available on parole are significant matters which you will be prepared to embrace if you remain of your present inclination.

15     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [162].

16     Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [63].

Conclusion on background and remorse

[49]   I would allow a discount of seven and a half per cent (that is roughly six and a half months) in recognition of your personal background and your remorse. I have to consider that discount and apply it alongside your guilty plea discount.

Guilty plea

[50]   You were originally charged with murder. That charge was amended after the Crown received further expert evidence as to the cause of Mr Kokaua’s death, and you pleaded guilty shortly afterwards. You are entitled to a full 25 per cent discount for that plea.

End sentence

[51]   Given the Court of Appeal’s recent decision in Moses v R, your personal mitigating factors now are combined into a single discount.17 That brings the end sentence with a total discount of 32.5 per cent to five years and five months’ imprisonment.

Minimum period of imprisonment

[52]   Mr Hawes, you have heard, has drawn my attention for the need for me to consider a minimum period of imprisonment (an “MPI”) which the Court may impose in relation to a determinate sentence of imprisonment of more than two years, if satisfied that parole at the ordinary release date would be insufficient to meet the sentencing purposes of accountability, deterrence, denunciation and protection of the community.18

[53]   Given the overall sentence of five years and five months’ imprisonment you would ordinarily become eligible for parole after serving little more than one year and nine months’ imprisonment.

17     Moses v R [2020] NZCA 296.

18     Sentencing Act 2002, s 86.

[54]   Mr Hawes submitted that an MPI is necessary in this case because you pose a high risk of reoffending and it was “good luck” to use his term in his written submissions, rather than a measure of control, that led to the stab wounds not being more serious and fatal.

[55]   Ms Buddicom submitted an MPI is unnecessary. She submitted that the sentence of imprisonment for you will itself serve the purpose of denunciation.

[56]   Given the seriousness of your attack as I must view it, combined with your previous convictions and the level of risk of reoffending, I am satisfied that an MPI is necessary to meet the purposes of sentencing in this case. The requirements of denunciation and protection of the community weigh most heavily with me. It is appropriate that an MPI be close to half the period of imprisonment.

[57]Mr Fenton, please stand.

Sentence

[58]   On the charge of wounding with intent to cause grievous bodily harm I sentence you to five years and five months’ imprisonment. I impose a minimum period of imprisonment of two years and eight months.

Osborne J

Solicitors:

Crown Solicitor, Christchurch

R Buddicom, Barrister, Christchurch