R v Harwood

[2012] NZHC 1979

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-004-006472 [2012] NZHC 1979

THE QUEEN

v

BARRY VICTOR HARWOOD

Hearing:         7 August 2012

Appearances: J M Jelas and N M H Whittington for the Crown

J E Boyack for the Accused

Judgment:      7 August 2012

SENTENCING REMARKS OF GILBERT J

Solicitors:           J M Jelas, Auckland:  [email protected]

N M H Whittington, Auckland:  [email protected]

J E Boyack, Auckland:  [email protected]

R V HARWOOD HC AK CRI-2010-004-006472 [7 August 2012]

[1]      Mr Harwood, you have pleaded guilty to one count of assault and one count of manslaughter.  Manslaughter is an unlawful homicide in situations where there is no murderous intent.  It carries a maximum penalty of life imprisonment.

Facts

[2]      The  facts  are  as  follows.     On  10  March  2010  you  and  the  victim, Mr Paul Kingi, were drinking with Michael Manga and Margie Jobe at the Glen Innes address you shared with Mr Manga. You were drinking all day, starting at 8.30 that morning.

[3]      At approximately 6.30 pm Mr Manga and Ms Jobe, who had gone out to the Panmure shops, returned to the address.  Mr Kingi was heavily intoxicated and was lying on the floor and had wet himself.  You were enraged by this.  You stood over him, shouted obscenities and punched him several times while he lay there.

[4]      Mr Manga has been acquitted of any role in the events which followed. I therefore make reference only to your actions.  Mr Kingi was moved to your balcony which is on the upper floor of the block of units and was approximately 3.9 metres above the ground.  Mr Kingi was seated on a chair adjacent to the door leading to the balcony. You continued to verbally abuse and assault Mr Kingi by punching him.

[5]      You then forced Mr Kingi over the balcony.  He tried to prevent himself from falling by holding onto the handrail.  Mr Kingi had his left leg over the top of the balcony rail and was attempting to pull himself back up when you forcibly prised his grip from the handrail by lifting his fingers.  Mr Kingi fell and as he landed he struck his head on the edge of the concrete walkway beneath the balcony. A neighbour who witnessed the incident called the Police.

[6]      Mr Kingi suffered a fractured skull and internal and external bleeding.  He was taken to Auckland Hospital and admitted into the critical care ward.  He died on

11 March 2010 as a result of the injuries he sustained when he fell.

[7]      I  turn  now  to  your  personal  circumstances.    Mr  Harwood,  you  are  an unmarried  67  year  old  pensioner  who  previously  worked  as  a  plumber  and drainlayer.  You have a number of adult children with whom you maintain regular contact.   You told your probation officer that approximately 10 years ago you sustained a serious head injury as a result of being assaulted in a home invasion which left you with physical symptoms including tiredness, mood swings, and irritability.  Given your counsel’s submissions, it is necessary to consider this point further, and I will do so at a later stage.

[8]      You have previously undergone radiotherapy for prostate cancer and have diagnostic testing every six months. As you have aged, your mobility has decreased, and you are awaiting a hip replacement.  Your alcohol consumption has raised some concerns, although the probation officer assessed you as being below the threshold for problem drinking.  You claim that you now limit your drinking to a few drinks once or twice a month. This is in direct conflict with a psychiatric report on which your counsel seeks to rely, which considers that you suffer from chronic alcoholism. You are in denial about the seriousness of your drinking and the role of alcohol in the events of 10 March 2010.

[9]      Despite  having  pleaded  guilty  to  the  offending,  you  say  that  your  last memory on the night of the offending was of Mr Kingi lying on the floor in his own urine.   You told the probation officer that you had no recollection of subsequent events until you woke up at the police station.

[10]     The probation officer says that your propensity for violence and your alcohol abuse contributed to your offending.  You express some regret that Mr Kingi is dead and maintain that your actions were in some way justified by Mr Kingi’s conduct. There is nothing in the pre-sentence report to indicate that you are remorseful for your offending.

[11]     The probation officer advises that you have little motivation to address the causes of your offending and assesses you as being at a low to medium risk of

further offending.   Given your age and your obstinate nature, your rehabilitative prospects are slim.

[12]     You have 34 prior convictions for, amongst other things, property offences, breaches of court orders, driving offences, trespass, and theft.  Notably, you do not have  any  prior  convictions  for  violence.    You  have  not  previously  received  a custodial sentence.

Victim impact statements

[13]     Your actions have had devastating consequences for Mr Kingi’s family and friends.   His parents, Nora and Anaru Kingi, have both provided victim impact statements.   They speak of their terrible feelings of loss.   Ms Kingi says that she found her son’s tangi almost too hard to bear.  Mr Kingi says he bears you no malice. In  the  wake  of  their  son’s  death,  the  Kingis  have  relocated  from Auckland  to Hawkes Bay and now live with their daughter, Lorraine Bean, for comfort.  Ms Bean has also provided a statement in which she describes your actions as appalling, heartless, and deplorable.   She says that when you took Mr Kingi’s life, you also took part of the family’s spirit.

Purposes and principles of sentencing

[14]     In  deciding  what  sentence  to  impose  on  you  I must  have  regard  to  the purposes and principles of sentencing contained in sections 7 and 8 of the Sentencing Act 2002.  Your conduct must be denounced and you must be held to account for your actions.   Your sentence must contain an element of deterrence to discourage future offending both by you and other members of society.   The views of the victims, expressed above, are relevant.

[15]     The sentence I impose on you must be consistent in kind and in length with those imposed on others who have offended in a similar way.   However, I am also required to take into account circumstances unique to you, which might render an otherwise appropriate sentence disproportionately severe.  Your health and the brain injury you suffered in 2003 are accordingly matters that I must consider.

[16]     In sentencing you today, I am first required to fix what is called a starting point.  This number, expressed in this case in terms of years of imprisonment, must reflect the gravity of your offending, including any relevant aggravating and mitigating features.   I am then required to turn to factors pertinent to you and to adjust the starting point to take into account any personal aggravating and mitigating features.

Procedural history

[17]     Mr   Harwood,   you   were   charged   with   Mr   Kingi’s   manslaughter   on

25 March 2010. You are being sentenced for this offence almost two and a half years later. The reason for this delay is largely attributable to your health.

[18]     On 11 August 2010, Andrews J noted that, based on a preliminary report prepared by Dr Ian Goodwin, a specialist psychiatrist, there were potential issues surrounding your fitness to stand trial.  These issues centred on the brain injury you suffered as the result of the home invasion in 2003.    I will return to this point later when discussing mitigating features personal to you.

[19]     When the matter next came before Andrews J on 18 August 2010, she set in motion the fitness to stand trial procedures provided for in Part 1 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.  A hearing under s 9 of that Act was allocated for 24 November 2010.

[20]     The purpose of a s 9 hearing is to determine whether the Court is satisfied, on the balance of probabilities that the evidence against an accused is sufficient to establish that he was responsible for the acts that form the basis of the offence for which he has been charged.   If the Court is so satisfied, it must then proceed to consider the issue of an accused’s fitness to stand trial.  Venning J, who heard the application on 24 November 2010, was satisfied on the balance of probabilities that your actions caused Mr Kingi’s death.   Accordingly, he directed that two health

assessors’ reports be prepared for the purposes of determining your fitness to stand

trial.

[21]     Venning J considered these reports, provided by Dr Duff and Dr Skipworth, at a hearing on 25 February 2011.  Both reports confirm that you suffer from a range of cognitive defects following  your 2003 brain  injury.   Dr Duff described your condition as a mild dementia secondary to brain trauma.  Dr Skipworth said that you presented with mild to moderate dementia due to head trauma.  Venning J concluded that while you may suffer a very limited degree of mental impairment, you nevertheless showed the necessary level of competence required to take part in the criminal proceedings you faced. Accordingly, you were found fit to stand trial.

[22]     Your case  came before Allan J  on  31  May 2011.    He noted  that,  since

26 April 2011, you had been undergoing daily treatment for prostate cancer. You had also  been  undergoing hormone treatment.   Allan  J  described  the effects  of this treatment as “severe” and said that he had “grave misgivings” over your ability to endure a lengthy criminal trial.  Your trial date was adjourned until 14 May 2012. You pleaded guilty on 1 May 2012.

Submissions

Crown

[23]     Ms Jelas, for the Crown, asks me to adopt a starting point of six years’ imprisonment and urges me to apply the bands set out by the Court of Appeal in R v Taueki, a case dealing with grievous bodily harm.  She submits that there are a number of features aggravating your offending.   First is your high degree of culpability.   Ms Jelas says that it would have been apparent to all present on that night that Mr Kingi was semi-unconscious and grossly intoxicated.  You deliberately lifted him over the balcony railing, and then intentionally uncurled his fingers until he lost his grip and fell.  Ms Jelas submits that it was readily apparent that this act, which was cruel and callous, would result in serious harm to Mr Kingi.  Ms Jelas also submits that the earlier assaults you inflicted upon Mr Kingi while he lay on your floor are also matters I must consider when setting a starting point.

[24]     The Crown does not seek an uplift for your previous criminal history, as your convictions have been mainly for alcohol and driving offences.  The Crown accepts that your age and poor health entitle you to a reduction in your sentence, as does your guilty plea, for which the Crown submits you should receive a discount of 10 to

15 per cent.

Defence

[25]     Your counsel, Mr Boyack, argues that it is inappropriate to apply the Taueki bands here.  He submits that, unlike the extreme violent conduct present in Taueki, it is the simple assault you inflicted on Mr Kingi that forms the basis of the manslaughter charge.  Counsel submits that, in all the circumstances, an appropriate starting point is no more than five years’ imprisonment.

[26]     Mr  Boyack  places  reliance  on  a  report  dated  31  July 2012  prepared  by Dr Goodwin in which he discusses your prior medical history, including the 2003 injury. Dr Goodwin records that you suffered a subdural haematoma and were hospitalised for four days as a result.  During this admission, you went into alcohol withdrawal and required formal alcohol withdrawal treatment.  The effects of your brain injury have been mild non-verbal intellectual impairment, some detriment to your reasoning ability, and concentration problems.

[27]     Mr  Boyack  acknowledges  that  your  intoxicated  state  at  the  time  of  the offending does not diminish your culpability.  However, he asks me to consider your alcohol dependency and your cognitive state as relevant to the context in which the offending  occurred.    Mr  Boyack  submits  that,  due  to  the  cognitive  impairment caused by your 2003 brain injury, you were not able to foresee the consequences of your offending.  Mr Boyack appears to contend that, for sentencing purposes, your actions are more attributable to your brain injury than to alcohol consumption.

[28]     Counsel submits that the issue of your fitness to plead caused legitimate delay and seeks the full 25 per cent discount for your guilty plea.  Mr Boyack urges me to impose a sentence of home detention on you, arguing that it would be disproportionately severe to sentence you to imprisonment.

Sentencing for manslaughter

[29]     The Court of Appeal has affirmed that there is no tariff case for manslaughter. This is because of the wide range of conduct and circumstances that can fall under the manslaughter umbrella.  While the Court of Appeal has cautiously approved the application of Taueki as a guide for manslaughter sentences, I do not propose to rely on the Taueki bands when sentencing you.   This is because your conduct, while extreme, was not an instance of extreme violence involving weapons, as in Taueki.

[30]     Instead, I must carefully analyse this case, and then proceed, with caution, to compare your offending with analogous cases in order to arrive at an appropriate starting point.

[31]     Neither counsel nor I have been able to identify instances of manslaughter offending with any considerable similarity to your own.  However, I have found two decisions to be of assistance in setting a starting point.

Case law

R v Rewiti

[32]     Mr Rewiti, aged 14 at the time of the offending, was walking with friends along a motorway overbridge when he told his friends he was going to get a rock. He went to a nearby construction site where he picked up a large piece of concrete, weighing approximately eight kilograms. Mr Rewiti returned to the overbridge and waited for a car to pass underneath, at which point he dropped the concrete block. The block smashed through the driver’s front windscreen and crushed the driver’s chest, killing him almost instantly.

[33]     In imposing a sentence, the Court had particular regard to the need to deter such  acts  of  stupidity and  the  gravity of  the  offending.  Winkelmann  J  did  not consider that the act was premeditated, but viewed the vulnerability of the victims and the harm done to them as aggravating factors. A starting point of six years was adopted. A discount of one year was then given for the offender’s early offer to plead

guilty to manslaughter and his remorse, and a further year for his youth at the time of the offending.   A final sentence of four years’ imprisonment was imposed, to be served in a youth justice residence.

R v Fairburn

[34]     Fairburn was convicted of manslaughter for the death of Mr Maxwell, her former partner and father of her two year old daughter.   In the days before the offending,  Ms  Fairburn  came  to  the  erroneous,  but  honestly  held,  belief  that Mr Maxwell had sexually abused their daughter. She spoke to friends about taking Mr Maxwell out, using poison or a stun gun. On 6 August 2007, she went to a bar where Mr Maxwell was drinking, which led to an altercation. Ms Fairburn told Mr Maxwell he would never see her again. Mr Maxwell followed her out of the bar, somehow ending up on the bonnet of her car, smashing his head against the windscreen and yelling. Ms Fairburn was frightened and began driving, with the intention of going to the nearest police station. Realising it would be shut at that time she continued to drive, hoping to attract attention so that someone would call the police. The journey ended when she crossed the centre-line and collided with an oncoming car, killing Mr Maxwell and injuring herself and the other driver.

[35]     In fixing a starting point, the Court took into account the excessive speed at which Ms Fairburn was driving (up to 120 kph), her persistent and deliberate bad driving, the length and duration of the journey (13.1 km), and the death Mr Maxwell who was in a vulnerable position on the car bonnet. A starting point of six years and eight months was adopted. A 25 per cent discount was given for Ms Fairburn’s offer to plead guilty to manslaughter, and a further 15 per cent discount to take account of:

(a)       Her previous good character;

(b)      The fact that she lost a former partner she loved;

(c)       Her mental health issues (particularly the presence of post-traumatic stress traits and borderline personality disorder);

(d)Her  history  as  a  victim  of  domestic  violence  (perpetrated  by  an ex-husband and the victim) and sexual abuse;

(e)       Her family responsibilities to her four children; and

(f)       Her genuine remorse.

[36]     This resulted in a final sentence of four years’ imprisonment.

Setting a starting point

[37]     Your offending is broadly comparable to the two cases I have discussed above. As with the offenders in Rewiti and Fairburn, your actions resulted in readily foreseeable harm.  The risk of harm in uncurling a person’s fingers from a balcony at some height is in a similar category to driving at speed with a person on the bonnet of a car, or dropping a heavy object from a height into traffic.  The common theme is that these acts are intentional, appreciably dangerous, and likely to have severe consequences.

[38]     I note that your offending involved actual violence, being the assaults to Mr Kingi as he lay on the floor of your unit, and the later assaults which occurred on the balcony.  These are relevant aggravating features not present in the cases I have referred to.

[39]     I am unable to accept your counsel’s submission that your brain injury and/or your alcoholism are relevant to the starting point assessment.  As the Crown argues, Dr Goodwin’s report does not support the conclusion that your offending can be primarily attributed to your brain injury.   Mental impairment may be relevant to sentencing, but is dealt with at a later stage when the starting point is adjusted for personal mitigating features.

[40]     Having regard to the cases discussed, in my view, a starting point of six

years’ imprisonment is appropriate.

Aggravating features

[41]     I accept your counsel’s submission that there are no personal aggravating features in your case.  Despite your history of previous offending, you have no prior

convictions for violent offending.  I disregard your previous convictions in fixing the appropriate sentence.

Mitigating features

Brain injury, health, age

[42]     You are an older man in ill health.   While old age alone will not be a significant mitigating factor, a greater discount may be given where old age and ill-health will render a sentence considerably harsher in its impact. I note that you have mobility problems for which you require a hip replacement.  There is also the matter of your prostate cancer, for which you require monitoring.

[43]     Under s 9(2)(e) of the Sentencing Act, I am also required to consider by way of  mitigation  whether,  at  the  time  the  offence  was  committed,  you  were  of diminished intellectual capacity or understanding.  Although the subsection refers to intellectual disability, pre-existing common law principles suggest that more general mental impairment may also be a factor capable of reducing culpability where it directly contributes to the offending. The extent of the discount depends on the degree to which the mental impairment was causative of the offending, and whether it poses a heightened risk of further offending.

[44]     Dr Goodwin in his report considers that your brain injury leads to a greater degree of impulsivity, which is compounded by your alcoholism.  I accept that your brain injury may have in some way increased your tendency to act spontaneously and without proper regard for the consequences.  However, in applying any discount, I  face  the  difficulty  that  you  were  also  heavily  intoxicated  at  the  time  of  the offending.  It is impossible to delineate impulsivity caused by your injury from the issue of your inebriation.  I also note Venning J’s finding that you have only a very limited mental impairment.

[45]     I consider that an appropriate discount for your age, health and the brain injury is 12 months. This reduces the sentence to one of five years’ imprisonment, before the guilty plea is considered.

Bail

[46]     The Crown accepts that you are entitled to a discount of six months to take account of the fact that you have been on bail on restrictive terms for a lengthy period.  In those circumstances I am prepared to allow this further discount of six months reducing the sentence to four years and six months’ imprisonment.

Guilty plea

[47]     To your credit, you pleaded guilty on 1 May 2012.  This plea was entered only two weeks before the commencement of your trial.  However, I accept that the late plea was partly the result of the concerns regarding your fitness to plead.  That issue was determined by Venning J in a judgment given on 25 February 2011.  There was therefore some delay before your plea was entered.  I also take into account that the Crown case against you was very strong.   Taking these factors into account I consider that a discount of 20 percent for your guilty plea is appropriate.  Applying this discount, your sentence is reduced to one of three years seven months’ imprisonment.

Minimum period of imprisonment

[48]   As you will receive a determinate sentence of more than two years’ imprisonment, I must consider whether to order that you serve a minimum period of imprisonment under s 86(1) of the Sentencing Act.  This is a term that is longer than one-third of your sentence.  A sentencing court may impose a minimum term if it is satisfied that the one-third default minimum after which you would normally be eligible for parole is insufficient, amongst other things, to hold you accountable for the harm done, denounce the conduct, or deter you and others from such offending.

[49]     The minimum term is considered necessary where offending is so serious that release after one-third of the sentence would plainly constitute an insufficient response in the eyes of the community even though there may be no on-going safety risk.

[50]     Your offending was very serious and you need to be held accountable for it. However, having regard to your age, health and your brain injury, I have decided that it is not necessary to impose a minimum term of imprisonment to denounce your conduct or to deter others from similar offending.

End sentence

[51]     Mr Harwood, would you please stand.  For the manslaughter of Stewart Paul Kingi, I sentence you to a term of three years and seven months’ imprisonment.  On the count of assault on Stewart Paul Kingi I sentence you to six months’ imprisonment.    These  sentences  are  to  be  served  concurrently.    The  effective

sentence is therefore three years and seven months’ imprisonment.

M A Gilbert J