R v Harnwell

[2021] NZHC 3409

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-090-003263

[2021] NZHC 3409

THE QUEEN

v

ISAAC ALLEN HARNWELL

Hearing:	14 December 2021
Counsel:	AM McClintock and STL Teppett for Crown AG Speed and RB Keam for Defendant
Judgment:	14 December 2021

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Auckland. AG Speed, Auckland.

RB Keam, Auckland.

R v HARNWELL [2021] NZHC 3409 [14 December 2021]

Offence and acknowledgment

[1]                 Isaac Harnwell, you appear for sentence on one charge of manslaughter. The maximum penalty for this offence is life imprisonment.1

[2]                 I acknowledge the presence of your family and friends, and the presence of family and friends of the victim, Coubin Tamatoa. Today will be hard for all of you.

[3]                 My task is to sentence according to law. Among other things, this means I must impose a sentence consistent with similar cases. No sentence is a measure of the victim’s life. And, of course, no sentence can change what has happened. Or as one victim expressed this morning, no sentence can bring Mr Tamatoa back.

The offending

[4]                 Mr Harnwell, you killed the victim. You twice wounded him with a knife. You first cut Mr Tamatoa’s eye socket. You then stabbed him to the chest. The knife penetrated the ribs and heart. Mr Tamatoa died at the scene, which I call Trig Road.

[5]                 The background is important.   You  went to Trig Road with your girlfriend   4 August 2020. You did so to recover a drug debt. You knew the victim, Mr Tamatoa. You and he had a difficult relationship. You believed Mr Tamatoa had shot at you days earlier.2 But, you thought Mr Tamatoa would not be at Trig Road. He arrived unexpectedly. His former partner, Ms Rapihana suggested you hide in a bedroom. You did for several hours while an eventful gathering at Trig Road unfolded.

[6]                 Mr Tamatoa was suspicious you were at Trig Road. He had a friend block the driveway with his car, presumably to prevent your escape. He repeatedly said to those present he would harm you. Mr Tamatoa was violent and erratic that evening. Among other things, he held  a pistol to Ms Rapihana’s neck and threatened to kill her.      Mr Tamatoa also had a fist fight with another man. At some point, your girlfriend went into the bedroom and gave you a kitchen knife.

1      Crimes Act 1961, ss 167 and 172.

2      Or orchestrated the shooting.

[7]                 In the early hours the next day, Mr Tamatoa found you in the bedroom. No one saw what happened  next.  However,  it  is  beyond  doubt  you  quickly  wounded Mr Tamatoa with a knife—twice. As observed, you first cut him about the eye. You then stabbed him to the chest. Mr Tamatoa stumbled out of the bedroom holding his eye. You fled the scene and hid from Police.

[8]                 You later told Police Mr Tamatoa fell onto the knife. Plainly, that was untrue. You also told Police you overheard Mr Tamatoa threatening to harm you. Trial evidence supports the contention Mr Tamatoa was making remarks of this nature. Moreover, Ms Rapihana said in the days leading to the offence, Mr Tamatoa told her he would harm you.

[9]                 You did not testify at trial. The jury found you not guilty of murder but guilty of manslaughter.

[10]             By their verdict, the jury rejected self-defence. I consider self-defence was rejected not because you were not defending yourself; rather, because the jury was sure you used unreasonable force when doing so. Though Mr Tamatoa presented a pistol at Ms Rapihana that evening, the evidence implies he was unarmed when he entered the bedroom. The pistol was found on the porch. Contrary to Mr Speed’s submission at trial and today, I am sure the pistol was not moved after-the-fact. Once Mr Tamatoa was injured, he unsurprisingly, became the focus of attention. No one said Mr Tamatoa  entered  the  bedroom  with  a  weapon.  Even  you  did  not  say Mr Tamatoa then had one.

[11]             This aspect and two others best explain the verdict. First, Mr Tamatoa appears to have been preoccupied by the wound about his eye. You fatally stabbed him after administering that wound. Second, when you left Trig Road, you said to Ms Rapihana that Mr Tamatoa would never hurt her again. On one view, that constituted an acknowledgement you had used unreasonable force.

[12]             In summary, you used a weapon with significant force to take the life of a larger but unarmed man. The victim was intent on confronting you violently; and had been violent and erratic that evening. Herein lies the difficult combination to the case.

[13]             It is common ground two things make your offending more serious. First, you used a weapon, a 20 cm bladed knife, which you deployed with significant force to the chest. Death was the obvious outcome, even though you did not intend it. Second, your offending has had devastating effects on the victims, as made clear by the victim impact statements read in court this morning. Mr Tamatoa’s mother says the offending has shattered her heart “into a million pieces”. His older sister says her “world has changed  forever”.  Unsurprisingly,  the  victim  impact  statement  on  behalf  of   Mr Tamatoa’s children identifies similar effects. So too those of a close friend, a statement I have admitted. You have taken a father, a brother, a son and a good friend.

[14]             I return to aggravating factors. The Crown says your offending was premeditated in that you could have left Trig Road rather than wait. While I accept you could have left the bedroom—there was an external door in that room—that you waited is also consistent with the proposition you were hiding, thus acting to defend yourself. So, I do not accept this factor makes your offending more serious.

[15]             The Crown offers a starting range of seven to nine years’ imprisonment based on other cases,3 including one of the Court of Appeal in relation to the crime of intentionally causing grievous bodily harm.4

[16]             Mr Speed offers a much lower starting point of three years’ imprisonment. This starting point is based on cases involving family violence, in which the victim is killed by their female partner or someone close to them, against a background of abuse of the defendant by the victim.5 These features distinguish these cases from yours.

[17]             Your offending is somewhat more like that involving Hendrix Ariki, who stabbed the victim once to the abdomen with a  knife.6  The victim had threatened  Mr Ariki with violence, albeit indirectly. An eight-year starting point was adopted in Mr Ariki’s case. Your offending is not as serious because Mr Ariki was not defending

3      R v Ariki [2015] NZHC 3240, R v Davies [2020] NZHC 903, R v Olley [2012] BCL  128,       R v Turipa-Wano [2017] NZHC 1803, R v Harris [2016] NZHC 1687, and R  v  Eastham  [2013] NZHC 2792.

4      R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769 (CA).

5      R v Kirk [2016] NZHC 1249, R v Ruddelle [2020] NZHC 1983, R v Waa [2018] NZHC 1028 and

R v Smith [2021] NZHC 996.

6      R v Ariki, above n 3.

himself when he killed the victim, and the victim had not been violent proximate to the offence.

[18]             The starting point must reflect these aspects, for, they significantly diminish your culpability.7 However, the starting point must also reflect the lethal violence was unnecessary because Mr Tamatoa was distracted by the earlier injury; and that you stabbed to the chest using significant force. Again, death was the obvious outcome, even though you did not intend it.

[19]             I adopt a starting point of five and a half years’ imprisonment. This figure reflects the difficult combination I spoke of; and is almost at the beginning of what is called “band two” in the decision of the Court of Appeal. But for the features of excessive self-defence, and Mr Tamatoa’s violence that evening, the starting point would be much higher. Citation of this case to another Court should make this clear.

[20]             Some of your criminal history is relevant. You committed an assault in 2019. In 2015, you injured with intent; committed three assaults with intent to injure; assaulted a child; and threatened to kill. In 2007, you assaulted a female three times. You have other convictions for violence too. Even if one assumes all of your earlier offending was family related, you have a propensity for violence. This aspect and the fact you were serving a sentence of community detention at the time of the offending, would ordinarily require an increase to the starting point. However, because your offending involves the use of excessive force in the context of self-defence, I do not increase the starting point.

Mitigating factors

[21]             Mr Harnwell, you are 34 and Māori. Your cultural report refers to an upbringing influenced by gangs, drugs, violence and abuse. The last feature I note but do not elaborate.

7      See R v Taueki, above n 4, at [32]. This case involves both limbs: so-called provocative behaviour by the victim, and excessive self-defence.

[22]             You began smoking cannabis at the age of 10. By 12 you had graduated to methamphetamine. You are, apparently, addicted to that drug. You were at Trig Road to collect a drug debt, so this feature has some broader relevance.

[23]             In 2019, you were attacked and beaten. You suffered a head injury, among others. You have been diagnosed with post-traumatic stress disorder, or PTSD for short. Your cultural report says this influenced your response to Mr Tamatoa. There may be something in this, but you did not testify and a cultural report may not do so by proxy.

[24]             Mr Speed seeks a six-month discount for this global mix. This strikes me as about right.

[25]             Mr Speed also seeks a deduction for remorse. The cultural report says you have “huge remorse” for stabbing Mr Tamatoa. Mr Speed says you would have been willing to engage with restorative justice, but events precluded this.

[26]             I have read a letter from your girlfriend and a short note from you headed “remorse letter”.

[27]             I am not persuaded of the existence of tangible remorse. You fled the scene, then hid. You told Police Mr Tamatoa fell on the knife, which was patently untrue. You  did not offer to plead guilty to manslaughter.  So, the total discount remains   six months.

[28]             The Crown does not seek a minimum period of imprisonment. Its approach is responsible.

Sentence

[29]             Mr Harnwell, please stand. For the manslaughter of Coubin Tamatoa, you are sentenced to a term of five years’ imprisonment.

[30]I remind you this is a strike offence, for which you have already been warned.

[31]Stand down.

……………………………..

Downs J