R v Hapuku

[2012] NZHC 1314

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2011-020-0182 [2012] NZHC 1314

THE QUEEN

v

TRENT OWEN NGARUHE HAPUKU

Hearing:         11 June 2012

Counsel:         S B Manning and K Laurenson for Crown

E J Forster and R B Philip for Prisoner

Sentencing:     11 June 2012

SENTENCING NOTES OF MILLER J

[1]      Mr Hapuku, you appear for sentence for the manslaughter, on 11 January

2011, of Mikara Reti.  You were found guilty at your second trial, which concluded on 2 May.

The facts

[2]      You were the boyfriend of Mikara’s mother Jamie Reti, and you were in the habit of spending a good deal of time with her in the sleepout which she occupied at her family home.  You seemed not to make any constructive use of your time;  the evidence indicates that you spent much of it playing video games on an X-box in the

sleepout, and you associated very little with Jamie’s family.

R V HAPUKU HC NAP CRI-2011-020-0182 [11 June 2012]

[3]      Mikara was five months old at the time of his death.   There is nothing to indicate that you had previously done violence to him.  The evidence did show that he did have fractured ribs from an injury suffered some time earlier, but the Crown did not seek to prove that it was you who inflicted that injury, and I sentence you on the basis that you did not.

[4]      On the day of Mikara’s death he was a little unwell, and hence unsettled.  At about dinner time Jamie left him in the sleepout with you while she went to have dinner and bath her older child.  At that time you were playing a video game called Scarface, and you were trying to “clock” it, meaning to score the maximum available points.  You had been doing so for some time.

[5]      While Jamie was absent you hit Mikara.  Precisely what form that blow took we do not know.  It may have been a punch or a kick.  What we do know is that it was a very heavy blow from the front and his liver took the full brunt of it.  It is a reasonable inference that you lost your temper when he distracted you from the game that you were playing.  I will draw that inference, which is favourable to you because it leads to the conclusion that you struck out once, in a moment of anger. Still, you should count yourself very fortunate indeed that you were not charged with murder.

[6]      At about 6.30 pm a family living nearby, the Hutleys, heard the scream of a baby in  great pain.   It was sufficiently disturbing to cause them to patrol their section, trying to make out where the noise had come from.  The experts agree that the injury to Mikara’s liver would have been excruciatingly painful.

[7]      When Jamie returned to the sleepout some time after 7.30 pm she found you holding the baby, trying to comfort him.  She immediately saw that something was badly wrong and decided that he must be taken to the hospital.  She drove there, you holding the baby throughout, and the two of you took him into the Accident and Emergency Department where you arrived at 7.50 pm.   You were soon seen by a nurse.   She immediately rushed Mikara to the resuscitation unit, but the die was already cast.   The blow had ruptured his liver vertically against his spine, almost severing it in two.  The hepatic veins had been ruptured, and death was inevitable. He was almost certainly dead when you arrived at the hospital.

[8]      Because  there  were  no  eye-witnesses  the  Crown  case  depended  upon showing that you alone had the opportunity to injure Mikara.  Your defence was that he must have suffered an injury earlier, perhaps 12 hours or more before he died. That theory rested on expert evidence that although the liver had been damaged the skin or capsule covering it might not have ruptured immediately, so containing the blood within a subcapsular haematoma.

[9]      This  theory  was  advanced  by Dr  Rex  Ferris,  a  very  experienced  retired pathologist, at your first and second trials.  At the first trial his evidence came late, and took the Crown by surprise.  The Crown nonetheless elected to continue.  The jury could not agree.

[10]     At  the  second  trial,  it  became  apparent  that  Dr  Ferris  had  misread  the evidence of the pathologist who actually conducted the autopsy, Dr Martin Sage. Dr Ferris had assumed that the only rupture to the liver was on the anterior or front side.  There was a rupture there, and there was evidence of a haematoma surrounding it.  However, and unbelievable as it may seem, Dr Ferris had not appreciated that the liver was also ruptured down its full length on the posterior side, where it had been forced against the spine.  This rendered his delayed rupture theory utterly untenable. To his considerable discredit Dr Ferris did not abandon his theory.  He did raise an alternative theory, that there may have been two serious injuries to the liver, the second occurring shortly before death and rupturing the hepatic veins.  Both theories went to the jury.

[11]     Their verdict was, I think, inevitable.  And I will say this in the presence of, and I see are members of your family here today Mr Hapuku;  it is regrettable that you did not acknowledge your responsibility from the outset.  It was absolutely clear in this case that one of what Mr Manning described as a very finite group of people must have killed Mikara.  The jury saw all of them.  All of them were decent and impressive people in their own way.  You did not accuse any of them, as you would have done had there been a competing narrative.  There is no suggestion that you felt any loyalty to them.  The expert evidence, to which so much attention was paid, was relevant only to a secondary issue:  when you did it.  By insisting on trial you have

deprived yourself of the substantial credit that an early guilty plea and genuine remorse can bring.  It is your choice, but you will now pay the price for it.

Victim impact

[12]     There are victim impact statements from Jamie Reti, her mother Selena, and Mikara’s  father.    Two  of  them  were  read  in  Court  today.    They speak  of  the enormous impact that his death has had upon a close-knit family.  They have needed counselling,  and Jamie continues to have difficulty coping.   She deeply regrets having entrusted Mikara to you.

Personal circumstances

[13]     I turn to your personal circumstances.  You are aged 23, and you were raised in Flaxmere by your mother, with whom you were living before your arrest.  You report that your family are very close and you had a good childhood.  I accept that. However, you were kicked out of numerous schools, on your own account “for not listening”.   A reference from  your grandfather explains that, putting it down to undiagnosed hearing difficulties.   Since finishing your education you have done some training in agriculture and worked in the agricultural sector.   You have a limited offending history, but three of your convictions do point to some propensity for violence.  You have two convictions for possessing an offensive weapon and one for disorderly behaviour.  For one offence in 2010 you received a short sentence of

28 days imprisonment.   Your reoffending risk is assessed as moderate due to this conviction.  You report being a cannabis user, although you now say you have given it up and you told the probation officer that before your arrest you were smoking most days.

[14]     I do not think you are a bad person, Mr Hapuku.  Many young men of your poor educational background and economic circumstances have acquired a far longer conviction history than yours, and you have no convictions for actual violence.  By and large, in other words, you have avoided a criminal lifestyle.  As I have said, your grandfather has explained that you were raised in a good family.  In my opinion your

behaviour and your lifestyle around the time of Mikara’s death points to a loss of connection with your family and immaturity on your own part.   The most likely explanation for your behaviour is that you lost it when the baby interrupted the video game.

[15]     Nonetheless, it has to be said that your offending follows a pattern which the courts see all too often, in which a woman’s new partner fails to bond with her children from previous relationships.  In such cases the home all too often becomes a very  dangerous  place  for  the  children.    The  courts  must  respond  with  heavy sentences.  You have a child yourself with Ms Reti, Mr Hapuku.  You should hope that any future partner of hers treats your child better than you treated Mikara.

Sentencing principles

[16]     Manslaughter attracts a maximum sentence of life imprisonment, but the court almost always imposes a lesser finite sentence.   There is no tariff case, but there are, regrettably, plenty of examples in which children have been killed in similar  circumstances,  and  those  cases  afford  guidance  to  the  sentence  I  must impose.[1]   Violence against children is serious criminal conduct.  The Sentencing Act requires that I take into account the defencelessness of the victim and the magnitude of the breach of any relationship of trust between the offender and the victim.[2]

[1] See the table in Woodcock v R [2010] NZCA 489.

[2] Section 9A.

[17]     I have considered a number of cases which I will list in my sentencing notes.[3]

[3] Woodcock v R [2010] NZCA 489; R v Leuta [2002] 1 NZLR 215 (CA); R v Donnelly [2011] NZCA 433; R v Rakete CA542/93, 23 May 1994;  R v Davis HC Whangarei CRI-2009-029-990,

14 July 2011;  R v Lock HC Rotorua CRI-2009-069-620, 30 September 2010;  R v Ratana [2012] NZHC 811.

The most relevant are those more recent cases in which a child has died following a one-off loss of control.  They point to a starting point of 9-10 years imprisonment in this case.  As Mr Manning says this, involved a very forceful and extremely painful blow inflicted upon a child who was completely helpless and dependent upon you. You did not seek help for him yourself;   not until Jamie returned to the sleepout,

about an hour afterward, was anything done to help him.

[18]     However,  I  have  accepted  that  it  involved  a  single  blow,  and  that distinguishes this case from others in which there was a sustained beating.  Although you are a cannabis user, there is no evidence that you were actually under the influence of at the time of the killing.  Although it was Jamie who decided to take Mikara to hospital, you did co-operate with her.   I accept that the CCTV footage appeared to show you taking the baby to a passing nurse to get her attention.   So while it cannot be said that you did anything to seek help for Mikara yourself, you did not stop Jamie from doing so and you co-operated once she decided to go to hospital.  There are no other mitigating factors of the offending.

[19]     I adopt a starting point of nine years imprisonment.

[20]     Although  your  previous  convictions  are  not  aggravating  factors,  they preclude a claim to good character.  At 23 you are past the point where credit can be given for youth.  You continue to deny responsibility, and no allowance can be made for remorse, so there are no other mitigating factors.

Sentencing

[21]     Mr Hapuku, your sentence is nine years imprisonment.

Minimum period

[22]     The Crown asks for a minimum period of imprisonment of 50 per cent.  A minimum period is a Court order that delays your eligibility for parole past the one- third period that normally applies.

[23]     Cases such as this routinely satisfy the criteria for a minimum period of imprisonment.   Denunciation and accountability are the dominant sentencing considerations.  But of course those have been reflected in the sentence.  In your case you will need to undertake courses to address your propensity for violence and your drug use, but I am prepared to accept that you should benefit from such courses and you have prospects of rehabilitation.  I am prepared to accept, in other words, that

you will prove to be a person from whom the community does not need protecting. Finally, eligibility for parole does not guarantee your release;  that will depend on how well you respond to treatment and, critically Mr Hapuku, it will depend upon your willingness to acknowledge what you did to Mikara.   For these reasons the Parole Board should be left to assess your readiness for release in the usual way. There will be no minimum period of imprisonment.

[24]     Stand down.

Miller J

Solicitors:

Crown Solicitor’s Office, Napier for Crown

Bate Hallett, Hastings for Prisoner