R v Harrington

[2017] NZHC 170

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-009-1501 [2017] NZHC 170

THE QUEEN

v

TONY JOE HARRINGTON

Hearing:	16 February 2017
Appearances:	K J Basire for Crown S G Bailey for Defendant
Judgment:	16 February 2017

SENTENCING NOTES OF DUNNINGHAM J

[1]      Mr Harrington you have pleaded guilty to the charge of manslaughter on

16 December 2016 and I now enter a conviction on that charge.

Three strike warning

[2]      Given your conviction for manslaughter you are now subject to the three strikes law.  I am going to give you a warning of the consequence of another serious violence conviction.   You will also be given a written notice outlining these consequences which lists the ‘serious violent offences’.

1.If  you  are  convicted  of  any  serious  violence  offence  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.

R v HARRINGTON [2017] NZHC 170 [16 February 2017]

2.If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment.  That will be served without parole unless it would be manifestly unjust.  In that event the Judge must sentence you to a minimum term of imprisonment.

Sentencing

Background

[3]      The background which led to this charge is that at about 9.00 pm on Friday,

12 February 2016, you were with a group of friends on Ferry Road in Christchurch. You were on a bike while the others were walking.  The victim, Mr Prue, was not known to your group but was walking in the same direction on Ferry Road.  When he passed your group he abused you verbally. You rode after him and caught up with him.   He and you then exchanged verbal abuse.   He then walked up to you and kicked at you and your bike forcibly and you lost your balance.  You then got up and ran at him rugby tackling him to the ground.  You placed a carotid hold around your victim’s neck for approximately 20 seconds. Your victim then collapsed and stopped breathing.  You released the carotid hold, punched your victim multiple times in the head.  You then stood up and kicked him in the head and back.  You then attempted CPR for a short time before fleeing the scene.  A friend rang you to say the victim was dead and you should return. You returned a short time later and handed yourself into the police.  Mr Prue was confirmed deceased by ambulance staff who attended the scene.

[4]      In explanation to the police, you said that you had got angry with the verbal abuse from Mr Prue.  You initially said you were defending yourself from the attack and you admitted punching him and placing him in a carotid hold.

Principles of Sentencing

[5]      In sentencing you today, I am required to follow the relevant purposes and principles of the Sentencing Act 2002. These include to hold you accountable for the harm you have done to the victim, to promote a sense of responsibility for the harm done, and to deter and denounce your conduct.   I must also take into account the

seriousness of the type of offence in comparison with other types of offence.  I must impose the maximum penalty prescribed if the offending is within the most serious of cases.  I also need to take into account the matters your lawyer has referred to, including your willingness to participate in a restorative justice process and the need for your rehabilitation.

Starting point

[6]      As the lawyers have explained in submissions, there is no guideline judgment for the starting point for manslaughter.   That is because of the wide variety of circumstances involved.  They say, and I agree, that in cases of violence such as this, the guidelines outlined in R v Taueki1 are of assistance.2   I will discuss the factors in that case Taueki that appear to be relevant to sentencing you, as well as the other matters raised by counsel, which are either what we call aggravating or mitigating factors which affect on the starting point for sentencing.

Aggravating factors of the offending

[7]      Extent of violence - the Crown have submitted that you applied an extreme amount of violence to your victim.   You placed him in a choker hold for at least

20 seconds and you continued to apply that hold after your victim went motionless. You then punched and kicked your motionless victim and your lawyer accepts that this level of violence occurred. That is an aggravating factor.

[8]      Premeditation - the Crown suggests that premeditation was a factor because you chose to run after the victim, tackle him and then choke him.  However, I agree with defence counsel that this was a spontaneous event which was not planned by you.  Although you were not in direct danger when you were attacking the victim, you did so in the heat of the moment and in response to the verbal abuse you had

received.

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

2      R v Jamieson [2009] NZCA 555 at [34]. Although the Court of Appeal in R v Tai [2010] NZCA

598 warned that a cautious approach is always required in deciding that Taueki is applicable to any given case.

[9]      Vulnerable victim - the Crown has also raised the suggestion that your victim was vulnerable.  Despite the Crown’s submissions, I do not consider that this victim was vulnerable as your lawyer points out, vulnerability refers to something about the victim, perhaps their age or physical incapacity.3    Here the victim was a physically able man.

[10]     Extent of injury – the fact that death resulted from the attack points obviously to the seriousness of the injury inflicted.  I do note, of course, that the pathologist says that she believes that the force applied to the neck was moderate.  Your victim had a pre-existing heart condition and I do acknowledge that she says it is unclear whether  your  attacks  would  have  resulted  in  death  if  that  were  not  present. However, I also note the Crown comments that equally there are many cases when someone without such a heart condition has died from exactly the force that you applied on that day.

[11]     Attack to head – the fact it was an attack to the head is an aggravating factor. Your attacks were largely focused around the victim’s head as you put your victim in a choke hold and punched his head a number of times.   I am satisfied that this aggravating feature is made out.

[12]     Impact on victims - the Crown suggests that this is a further aggravating factor.  You heard the victim impact statements today.  On the night clearly Mr Prue was just an object of your anger.  I hope having seen and heard the victims today, that you have some idea of him as a whole person, someone who was loved and who gave a lot to other people in his life.

[13]     Failure to render assistance - the Crown also submits that you failed to render assistance because you fled the scene after only briefly applying CPR.   However, your lawyer points out that you did at least make some effort and you did turn yourself into police when you were told of the victim’s death.  I do not consider that

to be an aggravating feature.

3      Taueki, above n 1, at [31](i).

Mitigating factors of the offending

[14]     In terms of what we call mitigating factors, I accept that the incident started because of the victim’s verbal abuse of you.  He was also the first party to use force by kicking your bike.   However, as the Crown points out, you then rode after the victim and confronted him, and tackled him, so the provocation at that point was minimal.    I  accept  however,  that  the  victim  did  play  a  part  in  initiating  the altercation, and this is a mitigating feature of the offending.

[15]     I also accept that you did return to the scene as soon as your friend called you and told you of what had happened and that you did co-operate with the police.  The fact you gave some assistance to the victim, albeit brief, and promptly went to the police, is a mitigating factor in my view.

Comparable cases

[16]     In submissions, I was referred to a range of cases by counsel,4  and I accept that the offending in this case is similar to the cases described in Fernyhough and Davis.  However, when you applied the choker hold, it was not because you were in the middle of a mutual fight as was the case in Fernyhough and Davis. You also assaulted the victim again after you released the choker hold and in my view these differences make the offending slightly more serious.

[17]     I consider that by comparison with the cases counsel have referred me to, and taking account of the attack to the head, the extent of the violence which resulted in the  death  of  your  victim,  that  this  warrants  a  start  point  of  seven  years’ imprisonment.

[18]     In terms of the aggravating and mitigating factors relating to you then, which would warrant either increasing or decreasing that starting point, you do of course have a criminal history, and there has been offending under the influence of alcohol and you had of course been drinking before this altercation occurred.   However,

there are only two violence offences, both more than 10 years ago, and you have not

4      R v Fernyhough [2014] NZHC 2298, R v Davis [2015] NZHC 3267, Turei v R [2014] NZCA and

R v Tai [2010] NZCA 598.

been before the Courts for several years.  In those circumstances, I am not prepared to uplift the starting point for previous offending.

[19]     In terms of mitigating factors, I take account of your willingness to attend restorative justice.  I also take account of the letter put before the Court today and the letter from Mr Roberts.  It seems you have reflected on this incident and you have taken some steps to address the factors which contributed to your offending on this occasion.   I consider a discount of 10 per cent is sufficient to reflect the remorse shown. This takes the sentence to six years four months.

[20]     It is also accepted that from there, there should be credit for a guilty plea. The Crown submits a discount in the region of 20 to 25 per cent while your lawyer advocates for the full 25 per cent discount.  I am satisfied that a credit of 25 per cent for the guilty plea is appropriate and that would bring the sentence to four years nine months’ imprisonment.

[21]     Mr Harrington, I would ask you to stand now.

[22]   Mr Harrington, on the charge of manslaughter you are sentenced to imprisonment for four years nine months.   There is no minimum period of imprisonment imposed.

Solicitors:

Raymond Donnelly & Co., Christchurch

S G Bailey, Barrister, Christchurch