R v Hakopa
[2020] NZHC 2763
•21 October 2020
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2019-083-000951
[2020] NZHC 2763
THE QUEEN v
TE AO DION HAKOPA
Hearing: 21 October 2020 Counsel:
H C Mallalieu for the Crown
E A Hall and A S C Brosnahan for Mr Hakopa
Sentencing:
21 October 2020
SENTENCING NOTES OF DOOGUE J
Mihi
E te rangatira e Kerrin Haere, haere, haere atu rā
Haere ki Hawaiki nui, Hawaiki roa, Hawaiki pāmamao Ki te kainga tūturu mō tatou, mō te tāngata
Kei te ngau tōnu te mamae i te ngākau o te tāngata kua mahue i tēnei taha o te arai. Nō reira, e moe, otiia atu.
Ka huri ki a tātou, tēna koutou katoa kua huihui i te ata nei Ki te whānau o te hunga mate
Ka nui te mihi.
Ki a koe, e Te AoKei te mihi ki a koutou ko tōu whānau
Nō reira, tēna koutou, tēna koutou, tēna koutou katoa
R v HAKOPA [2020] NZHC 2763 [21 October 2020]
To the deceased Kerrin Farewell
Travel on your final journey to great Hawaiki, long Hawaiki, and distant Hawaiki The final resting place of us all
The pain of your departure gnaws at the heart of those that remain on this side of the veil
So farewell and rest peacefully Turning to those present
To the whānau of the deceased, I greet you
I acknowledge Kerrin and your whanau present So I greet you once, twice, and three times.
Introduction
[1] Mr Te Ao Dion Hakopa, you appear for sentence on one charge of manslaughter.1 The maximum penalty for manslaughter is life imprisonment.
[2] In pleading guilty to the charge, you acknowledge you caused the death of Mr Kerrin Payne, also known as Ted, on 13 July 2019.
Facts
[3] Sadly – but not unusually – the events that unfolded on 13 July 2019 find their origin in excessive consumption of alcohol and violence by you and Mr Payne.
The pursuit
[4] You had been drinking Cody’s Bourbon and Cola mixed with spirits with your friends at your home in the garage. You had all been drinking continuously since the early afternoon that day. At around 11.00 pm that night, you and your long-term friend Gilly went around to the Payne household.
[5] At the Payne household the mood was light and everyone was socialising. You started playing the fool and Mr Payne took exception to that. At one point he grabbed you by the throat/shirt area and pulled you in close and threatened you. You told Mr Seymour (who the police put you with in the back of the police car to assist them)
1 Crimes Act 1961, s 171.
the fight started with Mr Payne gripping you around the throat area. Mr Payne was taunting you that he and another man had had sex with your partner, Ms Giddens. You told Mr Payne that you did not believe him and that you were heading home. You then left the Payne household.
[6] You started to walk home to Ms Giddens. Mr Payne followed you, accompanied by Mr McFarlane (a family friend of Mr Payne’s). Mr McFarlane was clear that Mr Payne punched you to the back of the head. Whether he saw or only heard the punch, Mr McFarlane described you as saying to Mr Payne “What was that for? I’ve done nothing to you.” I observe here that the brain stem is at the back of the head, and even one punch to that area of the body can prove to be fatal.
[7] Mr Payne continued to pursue you home. Julian Keywood, a neighbour, heard Mr Payne and another man arguing. He recognised Mr Payne’s voice. He described Mr Payne as argumentative and yelling. Mr Keywood said this sort of behaviour was not unusual for Mr Payne.
[8] Mr Payne’s pursuit of you continued out of 53 Kapa Street (50 metres) right into Kapa Street and to the intersection of Kapa and Thrush Street (another 113 metres) and then another 60 or so metres down Thrush Street. Because of Mr Payne’s behaviour, by the time you were in Thrush Street you began walking backwards – worried that Mr Payne might attack you again from behind.
[9] During Mr Payne’s pursuit of you, you repeatedly told Mr Payne to return to his home. Despite this, Mr Payne advanced on you. Mr McFarlane told police that you were saying to Mr Payne on Kaka Street:
“What are you doing? I’m going home, so that he is kind of walking side on, looking over his shoulder”.. Ted said come here come here, you little bastard”. At the time it was still about 10 m from Thrush Street corner. There were still about 3 m apart, Ted still had a straight face, with the shoulders up, and his hands in fists, looking ready to have a fight. I got up beside Ted and said to him, just leave him Ted, he is walking home” Ted didn’t answer me, he just kept walking. Normally when you say something like that, the person looks at you or something, Ted didn’t, he just kept walking. Just as Te [you] turned onto Thrush Street Ted said. “nah, fuck this little cunt”. Te was still saying “what you’re up to, I’m walking home”... you then rang Ms Giddens to both confront her with Mr Payne’s allegations and also to tell her that a work colleague was following him home and would not leave him alone.
[10]Mr McFarlane described the phone call:
“He got his cellphone out and phoned his girlfriend Emmalee. He told her what Ted was saying, he asked if it was true” Ms Giddens said that he was upset on the phone, his voice was cracking, “he sounded like he was ... you know when your voice cracks and you want to cry but you know he didn’t want to be a sook in front of… whoever was there”… he was stressed and upset and he was panting.
The altercation
[11]Mr McFarlane described the sequence as follows:
“Ted was closing the distance between him and Te [Hakopa]… Te said “you’re talking shit, I just rang my missus and she said no, you didn’t”. By that time Ted was right close to Te, they were face to face and Ted had his hands up at chest height in fists, like a boxer ready to have a fight. Te had his hands at hip height, he still had his phone in one hand and the other hand the fingers were starting to curl. He was watching Ted, seeing what he was gonna do…”
[12] Mr McFarlane said “[Payne] threw the first punch, it was a swinging arm aimed for [Hakopa’s] head, on a scale of 1-10 it was about a 7, it happened pretty quick. [Hakopa] saw it coming and slipped under it.”
[13] You described Mr Payne grabbing for you. You said you reacted on instinct and immediately punched Mr Payne back. The punched caused Mr Payne to stumble backwards fall to the ground hitting his head. You say you acted in self-defence and that you thought you were outnumbered by two to one (by Mr McFarlane and Mr Payne). It was only after the event that you learnt that Mr McFarlane was attempting to intervene to get Mr Payne to stop pursuing you and return home.
[14] As Mr Payne fell to the ground, you say you were terrified Mr Payne would get up and finish you off; so you kicked him twice in the head, stopping when Mr Payne stopped moving.
[15] Finally – but of critical importance – is the evidence of the two pathologists in this matter. Dr White for the Crown and Dr Garavan for the defence both agree that the cause of death was the punch followed by the fall and that the kicks to Mr Payne’s head not only did not cause his death but also did not contribute to it at all.
[16]I conclude that your culpability to constitute excessive self-defence.
Impact
[17] Your actions have resulted in the tragic death of Mr Payne. We have heard today from Mr Payne’s sister-in-law, who described the suffering and heartache his whānau, in particular his wife and children, have had to endure as a result of his death.
[18] I have also read a victim impact statement from Mr Payne’s daughter, who describes her father as a loving and hardworking man. She also described the pain her family, including her two young children, has suffered.
Approach to sentencing
[19] In determining your sentence I take a two-step approach.2 The first step is to assess an appropriate starting point in light of the culpability of your offending. In setting the starting point, I will consider sentences imposed in other manslaughter cases, and I will then consider the aggravating and mitigating features of the offending itself. After that, the second step is to adjust the starting point in light of your personal aggravating and mitigating factors.
Starting point
The law
[20] Sentencing for manslaughter is very difficult for at least two reasons. First, it is very fact dependent, because the circumstances in which manslaughter occurs are so many and varied. Second, it is also difficult because no sentence can make up for the death of the victim. The Court must hold you accountable for the serious consequences of your actions, but also reflect that those actions were not deliberate in intending to cause Mr Payne’s death.
[21] What all manslaughter cases have in common, however, is that death has been the unintended consequence of an unlawful act.
2 Moses v R [2020] NZCA 296 at [46].
[22] I must take into account the desirability of consistency with sentences in other similar cases and impose the least restrictive outcome in the circumstances. There are other sentencing purposes and principles that I must take into account which I am not going to go through in these remarks, but which have been commented on in the written submissions, at the sentence indication hearing, and here this morning.
[23] Reading the relevant cases that both counsel have referred me to, a consistent sentencing pattern has emerged for “one punch manslaughter” cases. I have reviewed a range of where the starting point was between two years and three years, six months’ imprisonment.3
[24] There are also a number of cases that have involved a punch followed by blows while unconscious or kicks to the head. I have reviewed a number of these cases, where the starting point was between four years and six years, three months’ imprisonment.4
Aggravating features of the offending
[25] The Crown have submitted the following are aggravating features of the offending:
(a)the violence;
(b)an attack to the head;
(c)significant harm has resulted; and
(d)the deceased was prone when the kicking started.
3 R v Hetaraka [2015] NZHC 2631; R v Steen HC Hamilton T033048, 29 June 2004; R v Kingi HC Palmerston North CRI-2004-054-000305, 7 April 2006; R v Paku HC Hamilton CRI-2005-019- 006408, 7 September 2006; R v Sagatea HC Auckland CRI-2009-092-017953, 20 May 2010; R v Ovaleni [2018] NZHC 2034; R v Carmichael HC Tauranga CRI-2007-070-002603, 6 September 2007; R v Efeso HC Auckland CRI-2008-092-007925, 24 October 2008; R v Larson HC Dunedin CRI-2011-012-001013, 6 July 2011; R v Needham HC Wellington CRI-2010-085-005780, 14 December 2010; Kepu v R [2011] NZCA 104; R v Tarawa [2018] NZHC 3205.
4 R v Tuiletufuga HC Auckland CRI-2005-092-013476, 17 February 2006; R v Orupe HC Wellington CRI-2009-035-001365, 3 December 2009; R v Evans-Whatarangi HC Hamilton CRI 2008-068-000609, 3 December 2009; R v Holman [2014] NZHC 438.
[26] I think, in this case, the facts are distinctly more nuanced. It is inherent in a manslaughter charge that significant harm has resulted. The cases I have reviewed have all involved violence. The punches being thrown by you were in response to having previously been hit on the back of the head by Mr Payne and then being swung at first by Mr Payne (who had already grabbed you around the throat area).
[27] In addition, care must be taken to ensure that disproportionate weight is not given to the kicking aspect of the assault. Here, the medical opinion is that the kicks did not contribute in any way to the cause of Mr Payne’s death.
Mitigating features of the offending
[28]The following mitigating features are present in your offending:
(a)Mr Payne’s behaviour;
(b)excessive self-defence; and
(c)calls for assistance.
Mr Payne’s behaviour
[29] Mr Payne’s behaviour is a relevant sentencing factor.5 Mr Payne, in pursuing, threatening and assaulting you is a cogent mitigating factor. Mr Payne’s threatening behaviour significantly reduces your culpability when consideration is given to the nature, extent and duration of his conduct operable at the time that you assaulted him.
[30] In Cooper v R the Court of Appeal reinforced the behaviour of the deceased as a factor lessening overall culpability (it should be noted that Mr Payne’s behaviour was far more threatening than in Cooper):6
Where a fatal blow is inflicted in the course of a fight started by the victim it is open to the sentencing judge to recognise an element of provocation. We accept Mr Brookie’s submission that in this case Mr Mills’ instigation of the physical fight between the two men did justify some recognition, though this
5 Sentencing Act 2002, s 9(2)(c).
6 Cooper v R [2014] NZCA 275 at [17] (footnotes omitted).
might have been better treated as a factor lessening the overall culpability of the offending.
[31] In Wairau v R the Court of Appeal commented as to the following essential points for the approach:7
(a)It is no longer essential to establish that the provocative conduct of the victim would have deprived an ordinary person, with the attributes of the defendant, of the power of self-control.
(b)Loss of control is still a factor relevant to culpability. Offending resulting from a “sudden and justified loss of self-control” may, depending on the circumstances, be viewed as less culpable than one involving a “calculated and controlled response”.
(c)A flexible approach is required; the evaluation in provocation sentencing is fact dependent. Relevant factors may include (non- exhaustively):
[T]he nature, duration and gravity of the alleged provocative conduct; the timing of any response by the offender; whether the response was proportionate to the nature, duration and gravity of the provocation; whether the provocation was (or remained) an operative cause of the offender’s response; and whether the provocative conduct was such as to reduce the offender’s culpability in all the circumstances.
Other factors identified by the Court of Appeal in Hamidzadeh as potentially arising include whether the offending occurred through fear rather than anger, whether there is any issue of intellectual impairment involved, and whether the offender has previously been the subject of physical or sexual abuse bearing on overall culpability.
…
[32]The Court of Appeal also commented, in Wairau:
[31] …Self-defence is just that: a defence to a charge of violent offending. Consideration of victim conduct under s 9(2)(c), on the other hand, is concerned with a different question: whether the behaviour of the victim has materially reduced the culpability of the defendant in responding to it. It will give rise, at best, to a modest discount on the starting point for sentencing.
[32] Secondly, the existence and extent of any discount for provocative victim conduct will depend on an evaluation of all the circumstances of the offending, including each of the factors identified in [29](c) above.
[33]It is also relevant that your offending occurred more out of fear than anger.
7 Wairau v R [2015] NZCA 215 at [29] (footnotes omitted).
Excessive self-defence
[34] You acted in self-defence. A person who kills believing wrongly that the violence is necessary in self-defence is less culpable or blameworthy than a person who kills without that belief.8
Assistance
[35] You provided a phone for 111 to be called as soon as it was apparent that Mr Payne was seriously injured. You flagged down Mr Toto and pleaded with him to help. Post assault actions are recognised as mitigating the culpability of the offending. Whilst it is acknowledged that following the assault you also yelled angrily at Mr Payne and made continued verbal threats (including nasty shouted comments that you hoped he died, that he should die, and that you should kill him) – this is explained by the physiological triggering of the acute stress of being threatened. The scene was chaotic and fast moving, and emotions were high.
[36] Thus, in the particular circumstances of this case, the aggravating offence-related factors are overtaken by the mitigating offence-related factors. Your overall culpability is significantly reduced, which brings the starting point back into the range of one-punch manslaughter cases without post fatal assault kicking.
Conclusion: starting point
[37] In accordance with my review of the authorities, and after taking all the aggravating and mitigating factors of the offending into account, I adopt a starting point of four years, six months’ imprisonment.
The Taueki cross–checking exercise
[38] The Court of Appeal has stated that reference to the case of R v Taueki can sometimes be used as a reference point for manslaughter, but not always.9 In Murray
8 R v Kirk [2016] NZHC 1249.
9 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.
v R, the Court of Appeal stated “Taueki will not always be relevant and a cautious approach is required”,10 and cautioned that:11
… reference to the Taueki guidelines in manslaughter cases will not always be appropriate. Indeed, there can be some awkwardness in translating them to manslaughter cases. An analysis of comparable cases may often be the best guide, bearing in mind that there is no tariff in manslaughter cases.
[39] Whata J also noted that caution is necessary in R v Holman, saying “... the guideline decision dealing with grievous bodily harm R v Taueki has been employed to provide assistance in this context, though some caution is needed.”12
[40] In R v Jamieson the Court of Appeal observed that Taueki would not always be relevant because there may be only moderate or even minor personal culpability on the defendants’ part.13 The Court of Appeal endorsed the use of Taueki where serious violence was used and serious injury was a foreseeable outcome.14
[41] The present case is the very type the Court has cautioned against applying Taueki as a cross-check for. The fatal injury was a single punch and was not serious violence in and of itself. Your culpability is dramatically reduced (because of the mitigating factors relating to the offending outlined above). I therefore leave the starting point at four years, six months’ imprisonment.
Personal mitigating factors
Systemic deprivation and upbringing
[42] The first mitigating factor I consider is your difficult upbringing and the systemic deprivation you have experienced.
[43] You are Māori and you identify strongly with your whakapapa. Your father is of Ngāti Awa and Ngāti Tūhoe, your mother is Ngāti Rangi and Ngāti Uenuku. I understand you speak te reo and you are strongly connected to your Marae (Te Māpou)
10 Murray v R [2013] NZCA 177 at [20].
11 At [27].
12 R v Holman, above n 4, at [31] (footnotes omitted).
13 R v Jamieson [2009] NZCA 555.
14 At [34].
in the Eastern Bay of Plenty. Your personal life experience needs to be contextualised in the post-colonial socio-political environment that is beyond the responsibility or influence of your parents, or even your grandparents. As Whata J outlined in Solicitor-General v Heta:15
[40] The effects of colonisation on Māori communities are well documented. Loss of land and other tribal resources together with the destruction of traditional social structures, tikanga, culture and language preceded widescale migration from tribal rohe to urban areas. For every generation since, Māori have been disproportionately represented among the poorest, most illiterate and most criminalised in New Zealand. The entrenched asymmetry of Māori in prisons is only one of many indicators of the systemic nature of this social disadvantage. For ease of reference I will refer to this pervasive and persistent social disadvantage affecting Māori as systemic Māori deprivation.
[44] I have received a report under s 27 of the Sentencing Act from Mr Laurence O’Reilly and Mr Denis O’Reilly, which traverses how history and decision making has impacted on you and your whānau in many ways. There is a causal link between how you were raised, your lived experience, your perception of harm and threat (and thus how these factors have contributed to the offending). The report demonstrates that you are a young man who has overcome systemic barriers and familial trauma, and that your life is one of “character-driven triumph against all odds”.
[45] The report also details your difficult and dysfunctional upbringing, characterised by instability, exposure to drugs and alcohol, and extreme domestic violence. A report prepared by an alcohol and drug clinician and registered nurse, Mr Duncan, confirmed you have a background of exposure to parental substance use: your mother has had a lifelong struggle with drugs and alcohol; and your father drinks regularly and was imprisoned for drug supply offending.
[46] I consider a discount of 11 months (approximately 20 per cent) is appropriate to reflect your difficult upbringing and the systemic deprivation you have experienced.
15 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 (footnotes omitted).
Guilty plea
[47] The second mitigating factor I consider is your guilty plea.16 You are entitled to the maximum discount for your early guilty plea,17 which is one year, one month (approximately 25 per cent).
Remorse and offers to make amends
[48] The third mitigating factor I consider is your expression of remorse and offer to make amends.18
[49]Discounts for remorse are discrete from discounts for guilty pleas.19
[50] There can be no doubt that you immediately felt genuine and gut-wrenching remorse for your actions. I have read a heartfelt letter of remorse you wrote to the Payne whānau.
[51] You have remained open to restorative justice. You have removed yourself from Taihape, and Ms Giddens and her parents are also moving from Taihape. Promising the Payne family that you will not return was a meaningful step to make amends.
[52]I consider a discount of three months (approximately five per cent) appropriate.
Youth, previous good character, and prospects for rehabilitation (whakahoki mauri)
[53] The fourth mitigating factor I consider is a combination of factors: your youth; your previous good character; and your prospects for rehabilitation.
[54] The Sentencing Act recognises that the age of the defendant can be a mitigating factor.20 In Churchward v R, the Court of Appeal clarified that youth can be relevant to sentencing in three ways, being:21
16 Sentencing Act, s 9(2)(b).
17 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
18 Sentencing Act, ss 9(2)(f) and 10.
19 Moses v R, above n 2, at [26].
20 Sentencing Act, s 9(2)(a).
21 Churchward v R [2011] NZCA 531 at [77]-[88].
(a)age-related neurological differences between young people and adults (in other words, anyone would have difficulty making careful judgements in the circumstances, but youth makes that decision making more difficult still);
(b)the effect of imprisonment is disproportionately severe on a young person;
(c)a sentence of imprisonment might increase the likelihood of offending in the future; and
(d)the fact that young people have a greater capacity for rehabilitation.
[55] You were just 23 years old at the time of the offending. In R v Ovaleni, the High Court gave a discount of five per cent for Mr Ovaleni’s youth (aged 23) on a manslaughter charge.22
[56] What is extraordinary about you, Mr Hakopa, is that despite your difficult and dysfunctional upbringing, you achieved well at school. By age seven, you had learnt to rely on yourself and on your wider whānau. The numerous testimonials filed paint a picture of a fine young man who is a great contributor to his whānau and his community. You are universally described as gentle, hardworking, honest, reliable, conscientious, and caring. You have no previous convictions of any note.
[57] As I have already noted, regularly drinking to excess was part of your life from a young age. Despite this, Mr Duncan reported that prior to this incident you were showing signs of managing your own path, and reducing your use of substances as you matured. He noted that you have demonstrated a good work ethic and appeared generally on track with your life. You have totally reformed yourself, and have been substance-free since the incident.
[58] You can only be considered to have excellent prospects of applying the insight you have gained through this tragic event to the positive shaping of your future.
22 R v Ovaleni, above n 3.
[59] Mr Hakopa, you are intelligent, hardworking and committed to your life with Ms Giddens. Your youth, previous good character, and your prospects for rehabilitation are worthy of a discount of three months (approximately five per cent).
Time spent on electronically monitored bail
[60] Finally, I come to the fact that you have spent approximately 13 months on electronically monitored bail (EM bail).23 Compliance with EM bail is regularly recognised as attracting a discrete discount, depending on how restrictive it is and how well a defendant has complied.24
[61] You have been subject to a 24-hour curfew, with a variation to allow you to work. You have complied with your bail without fault. I set the discount for time spent on EM bail at four months in your case.
Conclusion: end sentence
[62]This results in a sentence of one year, eight months’ imprisonment.
Home detention
[63] As your sentence of imprisonment is one of less than two years, I am able to convert it to home detention if I consider that appropriate.25
[64] Your counsel, Ms Hall, submitted that the least restrictive sentence appropriate in the circumstances is one of home detention.26
[65] You have been on electronically monitored bail without any incident for 13 months. You have been living with your uncle in Kawerau, and the address has been approved for home detention.
23 Sentencing Act, s 9(2)(h).
24 Parata v R [2017] NZCA 48 at [10]–[15]; R v R [2017] NZCA 210.
25 Sentencing Act, s 15A(1).
26 Sections 8(g) and (16)(1).
[66] In line with the desirability of keeping offenders in the community as far as that is practicable,27 and the clear awareness that our prisons are full of young Māori men, I conclude that you do not need to be added to their ranks.
[67] The level of threat posed to you was real and imminent. Your reaction may have been excessive in the circumstances, but the fatal injury came from self-defence. I also have regard to the fact that bright promise exists for you to live the balance of your life contributing as you have in such a valuable way to your community and to your whānau.
[68] I consider in all the circumstances home detention is appropriate for you. Home detention remains a significant punishment and adequately meets the applicable sentencing principles and purposes in your case.
[69] The challenge for you will remain, as you said to Ms Giddens on the night, as Mr Payne lay dead on the road “how am I gonna live with myself”.
Result
[70]I sentence you to 12 months’ home detention.
[71]The conditions of your home detention are:
(a)You are not to possess, consume, or use any alcohol or drugs not prescribed to you.
(b)Ms Hall advised you are already attending the Nga Kakano Mental Health and Addiction Service in Te Puke, as recommended by Mr Duncan. You are to continue with this service.
(c)You are not to associate with or contact the victim’s whānau, without prior written approval of your probation officer (including after completion of your sentence).
27 Section 16(1).
(d)You are to reside at the approved address and you are not to move to any new residential address without the prior written approval of your probation officer.
(e)You are to attend and complete an appropriate non-violence programme to the satisfaction of your probation officer. The specific details of the appropriate programme shall be determined by your probation officer.
(f)You are not to leave the home detention address unless supervised by your probation officer.
First strike warning
[72] Mr Hakopa, given your conviction for manslaughter you are now subject to the three strikes law. I am going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice which contains a list of these “serious violent offences”.
(a)If you are convicted of any one or more serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.
(b)If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event, the Judge must sentence you to a minimum term of imprisonment.
Doogue J
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