R v Hetaraka - [2015] NZHC 2631

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-085-8441 [2015] NZHC 2631

THE QUEEN

v

HARIBOY HETARAKA

Counsel:
S C Carter for Crown

R B Squire QC and I D Hay for Defendant

Judgment:

27 October 2015

SENTENCING REMARKS OF ELLIS J

[1] Mr Hetaraka, as you probably know, there are thing I need to say as part of sentencing you today. You can sit down while I am saying them and then I will get you the stand up at the end.

[2] Mr Hetaraka you are for sentence today after a jury found you guilty of the manslaughter of Clark McCulloch. The maximum penalty for manslaughter is life imprisonment, which reflects just how seriously the law views the taking of another person’s life.

[3] But the law also recognises that all manslaughter cases are not the same, and sometimes the circumstances of a case are such that imprisonment is not the appropriate sentence. So one of the main questions for me today is whether or not a non-custodial sentence is possible and appropriate in your case, whether home
detention is the least restrictive available sentencing outcome.

R v HETARAKA [2015] NZHC 2631 [27 October 2015]

[4] As you probably know, there are a number of things I am required to consider and to say to you as part of the sentencing process. And I need to begin with the facts.

Facts

[5] At about 11 o’clock on the morning of 1 July 2014, Mr McCulloch and his sometime partner [Ms C] were walking up Brooklyn Road towards Central Park in Wellington. Ms C’s evidence was that Mr McCulloch had already consumed one and a half bottles of vodka that morning. She said that she had persuaded him to walk with her up the road to the park, in the first instance to dispose of the empty vodka bottle which she had put in a plastic bag. But Mr McCulloch and she were arguing quite loudly and there was a tussle between them after he dropped the bottle in the gutter and tried to stop her picking it up. One witness who was within earshot at the time said that he heard the sounds of bottles clinking and a woman in distress. There was evidence at the trial, which I accept, that Ms C was, at about this point, trying to get Mr McCulloch to leave her alone and to get away. One witness heard her shouting at him to “fuck off”’.

[6] As all this was occurring you were upstairs in your flat which was just across the road. You also heard what was going on. You went out onto the balcony of your flat and saw Mr McCulloch pushing and struggling with Ms C and you shouted out to him to stop it, to cut it out. Mr McCulloch’s response was to yell back that it was none of your business and to call you a “nigger”. After you threatened to call the police and shouted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hetaraka

Details

AGLC: R v Hetaraka [2015] NZHC 2631
Case: [2015] NZHC 2631
Decision Date: 27 October 2015

CaseChat Overview and Summary

The case of R v Hetaraka involved the sentencing of Hariboy Hetaraka for the manslaughter of Clark McCulloch. Hetaraka was found guilty by a jury and faced a maximum penalty of life imprisonment. The court considered whether a non-custodial sentence, specifically home detention, was appropriate given the circumstances of the case. The key facts of the case involved Hetaraka intervening in a public altercation between McCulloch and his former partner. Hetaraka punched McCulloch, who subsequently fell and hit his head, leading to his death several weeks later. The court accepted Hetaraka's defence of acting in self-defence, though the jury concluded that the force used was excessive.

The court's reasoning focused on the mitigating factors of Hetaraka's actions, including his intention to help the woman being assaulted and the genuine nature of his self-defence claim. Despite Hetaraka's history of violence, the court noted a significant gap in his criminal record following the birth of his children, suggesting a change in his lifestyle. Additionally, Hetaraka's current employment and positive reference supported his potential for rehabilitation. The court also took into account the impact on McCulloch's family and the lack of intent to cause serious harm.

Ultimately, the court determined that the appropriate starting point for sentencing was two years imprisonment but reduced this to 22 months considering Hetaraka's remorse and the mitigating factors. The court concluded that home detention was the least restrictive sentencing option that balanced the need for punishment with the potential for Hetaraka's rehabilitation. The final order was for Hetaraka to serve 11 months of home detention, with conditions to be approved by his probation officer, allowing him to go to work under certain safeguards.

Orders