R v Hohua

[2021] NZHC 1242

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-087-1528

[2021] NZHC 1242

THE QUEEN

v

DALLAS HOHUA

Hearing:

17 December 2021

Appearances:

B R Smith and J Sutton for the Crown

J D Munro and J N Olsen for the Defendant

Judgment:

17 December 2021

SENTENCING REMARKS OF MUIR J

Counsel/Solicitors:

Pollett Legal, Crown Solicitors, Tauranga J D Munro, Barrister, Auckland

R v HOHUA [2021] NZHC 1242 [17 December 2021]

Introduction

[1]    Dallas Hohua you appear today for sentence having been found not guilty of murder but guilty of the manslaughter of Lani Paul at Whakatāne on 23 October 2020. The maximum penalty for manslaughter is life imprisonment. However, I can indicate at the outset that you will not be receiving a sentence of life imprisonment  today,  Mr Hohua. Such a sentence would not be appropriate for your offending. I will instead impose a determinate sentence, in other words, one with a fixed end date, and also consider whether to impose a minimum period of imprisonment.

Background

[2]    It is necessary first to describe the factual basis upon which I propose to sentence you today. I am required to accept as proved all facts that are essential to your guilt.1 I may also reach my own view, based on the evidence, of those facts relevant to the sentencing so long as they are consistent with the jury’s verdict.2 What follows is a combination of the Crown summary of facts, with which I essentially agree, and my own findings where required.

[3]    You were charged with murder to which the jury returned a verdict of not guilty, but guilty to manslaughter. Your primary defence was self-defence. I must proceed therefore on the basis that the jury either considered you did not act in self- defence at all, or considered that your response was unreasonable in relation to the threat posed. Likewise however, I must proceed on the basis that when you stabbed the victim you neither intended to kill him nor intended to cause bodily injury known to you to carry a real risk of death.

[4]The victim was 29 year old Lani Paul. You knew one another. At about

5.00 pm on 23 October 2020, Mr Paul, his partner and several of their associates all went to your address. Many of the group had been consuming alcohol throughout the day. You arrived home a short while later having already consumed significant amounts of alcohol yourself.

1      Sentencing Act 2002, s 24(1)(b).

2      Edwardson v R [2017] NZCA 618 at [105]–[107].

[5]    At about 11.00 pm, Mr Paul and his partner began to argue. The argument became physical. You and your then partner, Ms Hikitea Delamare, decided to close the party down. You told everyone to get off your property, including Mr Paul and his associate known as “Stretch”.

[6]    Mr Paul and his friends did not want to leave. You were determined that they do so and began pushing them out onto the driveway adjacent to the shed in which the party had occurred. A fight then broke out between you and Mr Paul during which you punched him in the face several times. You also took punches from Mr Paul resulting in swelling/bruising to your own face and a laceration.

[7]    Throughout this period Ms Delamare vocally supported you and endeavoured to arm herself, including with a golf club which Mr Hohua removed from her..

[8]    In due course, as a result of the intervention of others, you and Mr Paul disengaged.

[9]    Mr Paul went out into the street, or the lane adjacent to your house, removed his shirt,3 and then walked back towards your property. You had at this stage gone around to the front of your house. You went inside for a short period before returning and taking up a position on the front law, brandishing a golf club. At about this point you were joined by your grandson who had retrieved a baseball bat from his car.

[10]   Mr Paul then made an attempt to jump over a side fence into your property before returning to the street where you and Mr Paul yelled abuse at each other culminating in you leaving your front yard and advancing on him. As you did so, you discarded the golf club. But while inside the house I conclude, based on my assessment of all the facts, you had armed yourself with a knife.

[11]   Mr Paul then retreated back up the street towards his own home. Stretch was with him. Either at that point or a little earlier they had removed a paling from the neighbour’s fence. As you closed the gap on Mr Paul he grabbed the paling. Your grandson was doing his best to get you to disengage but you weren’t listening. Mr Paul

3      A likely indicator of his desire to re-engage Mr Hohua in a fight.

then swung the paling but your grandson blocked the blow. At that point you stabbed Mr Paul deeply in the mid chest.

[12]   Mr Paul lost his step, then regained his balance, before running to his own driveway, where he collapsed. His associate managed to get him into the back of a car and the pair drove to Whakatāne Hospital.

[13]   Mr Paul was pronounced dead a short time later. He suffered a single puncture wound to his sternum approximately 7.5 centimetres deep which severed his heart. The medical evidence was that there was nothing that could be done to save him.

[14]   These facts do not fit neatly within a standard legal construct because, although in one (I consider artificial) sense you may be considered to have stabbed Mr Paul in response to his intended assault of you, and accordingly acted self-defensively, that was in the context of you being the aggressor having jumped the fence and advanced on Mr Paul. A leading commentary, Simester and Brookbanks’ Principles of Criminal Law, says that in such cases the determinative questions are likely to be whether:4

… [the defendant] has foreseeably and wrongfully created the circumstances in which he or she is endangered by [the victim], and whether the danger is being posed by [the victim’s] justified response to those wrongfully-created circumstances.

[15]The same authors state:5

Public policy, too, would seem to demand that an unjust aggressor not be entitled to plead self-defence. To not enforce such a limitation on the defence would imply that the state is willing to offer impunity to any unjust aggressor simply because his or her victim used force in self-defence.

Victim impact statement

[16]   I received a victim impact statement from Ms Kameta, the deceased’s partner which was read in Court by a representative of Victim Support. She speaks of the shock and grief caused by Lani’s passing. However, while she can never forget what you have done, she also speaks of forgiveness. I have found her words moving and

4      AP Simester and WJ Brookbanks Principles of Criminal Law (5th ed, Thomson Reuters, Wellington, 2019) at 684 (emphasis in original and footnote omitted).

5      At 683.

generous and thank her for them. I extend to her and Lani’s whānau the sympathy of this Court. There is nothing I can say today which can adequately address the sadness you feel for his passing, or right the wrong he suffered, but I hope that it at least begins the process of closure.

Approach to sentencing

[17]   The process I plan to adopt in sentencing you today is relatively straightforward. I will first set a starting point that reflects the seriousness of your offending. This involves considering the circumstances of the offending, including any aggravating or mitigating factors. I will then consider your personal circumstances as they relate to the offending, in order to assess whether that starting point should be adjusted upwards or downwards. Finally, I will consider whether to impose a minimum period of imprisonment over and above the default non-parole period of one-third the length of your sentence.6

[18]   Throughout this process I am required to have regard to the statutory principles and purposes of sentencing.7 These include the need to hold you accountable for your offending and for the harm you have caused both to Mr Paul and to the wider community; the need to promote in you a sense of responsibility for, and an acknowledgment of, that harm; the need to denounce your conduct; to deter you and others from similar offending; to protect the community; and to assist in your rehabilitation. I must also impose a sentence that is consistent with the sentences that have been imposed in other cases in respect of similar offending.8

Starting point

[19]   There is no guideline case to assist manslaughter sentencings.9 This is due to the wide variety of circumstances in which a charge of manslaughter can arise and because, although the maximum penalty for the offence is life imprisonment, many cases warrant significantly less severe penalties. Yours is in this category. The accepted practice is therefore to consider the aggravating and mitigating features of

6      Sentencing Act, s 86. See also the Parole Act 2002, s 84(1).

7      Sentencing Act, ss 7 and 8.

8      Section 8(e).

9      See Everett v R [2019] NZCA 68 at [24]–[27].

the offending by reference to the Court of Appeal’s decision in R v Taueki before comparing the offending to other analogous cases.10 That is the approach both counsel propose and which I intend to adopt.

[20]The following aggravating features are present in your offending.

[21]   First, the extreme level of violence associated with your attack. You stabbed Mr Paul through the sternum, to a depth of 7.5 centimetres, piercing his heart and causing his death.11 On your behalf Mr Munro disputes that there was extreme violence. He says the attack was not prolonged, unprovoked or gratuitous. However, it is not necessary for the violence to be prolonged for it to be categorised as extreme and therefore to qualify as an aggravating feature of the offending.

[22]   That said, there was also bruising to Mr Paul’s face which the Crown submits, supported by expert evidence, was caused by you punching him to the face at least three times prior to the fatal stabbing. I reject the suggestion that this was caused by Mr Paul rolling around in the footwell of the vehicle that transported him the short distance to the hospital. Dr Stables thought that proposition highly unlikely. So the stabbing was in some senses the finale to what was a longer period of violence in any event.

[23]   I also reject Mr Munro’s submission that your use of the knife was not gratuitous. The jury’s verdict necessarily implies that it rejected your claim of self- defence. Production and use of a knife was, at a minimum, a totally disproportionate response to the threat faced and in circumstances where the threat itself had defensive origins.

[24]   I therefore consider the level of violence administered by you a significantly aggravating feature.

10     See R v Taueki [2005] 3 NZLR 372 (CA); R v Tai [2010] NZCA 598 at [12]; Ioata v R [2013] NZCA 235 at [25]–[28]; and Everett, above n 9, at [27].

11     Taueki, above n 10, at [31(a)].

[25]   Secondly, I must take into account the seriousness of the injury inflicted—a mortal wound which resulted in proximate death.12 Again, this is a significantly aggravating feature.

[26]   Thirdly, your use of a weapon must also feature in the calculus.13 The Court of Appeal in Taueki observed that:14

The use of a lethal weapon such as a firearm or a knife will be a serious aggravating factor. In short, the more lethal the weapon that is used, the greater the aggravating factor will be. Where the use of a weapon is premeditated,

the criminality will be worse. In particular, if the offender brings a weapon to the scene with the intent of its being used, that will be severely aggravating. Similar considerations arise if the weapon is brought to the scene for use as intimidation, because it can be anticipated that a weapon brought to the scene in such circumstances will, in fact, be used by the offender.

[27]   I am prepared to accept that when you armed yourself with a knife you did not do so with the intention of necessarily stabbing Mr Paul. Had the jury thought this was the case, a murder verdict may well have been appropriate. But you nevertheless introduced a lethal weapon into what was already a very volatile situation. Your use of that weapon is also a significant aggravating feature of the offending.

[28]   Implicitly in what I have just said, I reject the Crown proposition that use of the knife was in any material sense premeditated. The fact that you remained on the front lawn remonstrating with Mr Paul for a period after uplifting it, belies that proposition. My assessment is closer to that of Mr Munro. He suggests that your use of the knife was not premeditated but an impulsive act—that you did not brandish it but produced it in the heat of the moment.

[29]   With respect to mitigating features of the offending, the Crown submits that there are none. It contends that while you and Mr Paul had been fighting prior to the final altercation, there was a gap when you separated and took up positions respectively on the front lawn and the street. Mr Smith submits that although Mr Paul may have continued to taunt you this cannot be considered sufficient provocation to mitigate your offending. The earlier fight had ended. You had armed yourself with a

12     At [31(c)]; and Sentencing Act, s 9(1)(d).

13     At [31(d)]; and Sentencing Act, s 9(1)(a).

14     At [31(d)].

golf club and were inside the boundary of your property in a strongly defensive position. Others were attempting to calm the situation on each side. The deceased was moving away towards his house. He submits that your decisions to obtain the knife, pursue the deceased, and then stab him were not provoked.

[30]   Mr Munro submits to the contrary that you were coaxed out of your front yard by Mr Paul, that he encouraged you to come out and to fight him. He says that provocation was substantive and operative at the time of Mr Paul’s death.

[31]   Although I do not consider that provocation significantly reduces your culpability, I do think some recognition for this factor is appropriate.15 Had Mr Paul simply gone home after the initial altercation and removal from the property, this tragedy would have been avoided. Instead, he continued goading and taunting you into a fight. He would not leave you alone. He pressed all the wrong buttons by referring to your age, implicitly elevating his own superior physicality. He did so in front of your female partner who was egging you on and, despite the mature attempts of your grandson to de-escalate the situation, you rose to the bait. Mr Paul then attempted to jump the side fence back into your property. This was apparently the final straw; you then abandoned your defensive position and pursued him down the footpath. The fatal stabbing occurred shortly after. Some modest recognition of these provocations is appropriate. That said, the response was still disproportionate and extreme. Any reasonable person would have left Mr Paul to it, disengaged, gone inside and if Mr Paul persisted, called the Police. That such a response may not sit well within gang culture cannot excuse your actions or mean that any greater allowance should be made for provocation.

[32]   In a similar vein, the Crown submits that self-defence is not a mitigating feature of your offending. Mr Munro disagrees. He says that if the jury accepted that the Crown had proven beyond reasonable doubt that you were not acting in self-defence, then your motivation for stabbing Mr Paul would have been in anger or retaliation. He therefore submits that if the jury found you were not acting in self-defence, then they would have found you guilty of murder.

15     Sentencing Act, s 9(2)(c). See Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369 at [62] as cited in Wairau v R [2015] NZCA 215 at [29(c)].

[33]   I do not accept that submission. It is possible that the jury considered you were not acting in self-defence but nevertheless considered that you failed to appreciate, in the heat of the moment, that your action may well lead to Mr Paul’s death. It would of course have been conscious of the standard of proof on the murder charge. It is not a necessary corollary of the jury’s verdict that they thought you were acting in self- defence.

[34]   However, in the context of this offending rarefied discussions about whether you acted self-defensively at all or whether you did so but in a way which was disproportionate, tend to the arcane and have little bearing on sentencing outcome. That is because whether the issue is analysed in the way I have previously quoted from Principles of Criminal Law or whether, as Adams on Criminal Law puts it, the actions of a nominally defensive aggressor “cannot be seen as reasonable”,16 the same end point is ultimately reached—even though Mr Paul attempted to strike you or your grandson with a fence paling as you, the aggressor, advanced on him, this cannot be seen as mitigating your offending in any material sense. As you pursued Mr Paul and as you saw him grab the paling to defend himself against your inevitable attack, you chose, against all of your grandson’s pleading, to advance further, driven by aggression and frustration, your emotions fuelled by alcohol, knowing that you had by far the more lethal weapon at your disposal.

[35]   I do not therefore accept that purported self-defence or excessive self-defence reduces your culpability for Mr Paul’s death.

[36]   The Crown submits that your offending falls within band two of Taueki and attracts a starting point in the region of eight to nine years’ imprisonment. By contrast, Mr Munro submits that your offending falls squarely within band one and attracts a starting point of four years’ imprisonment. I do not accept Mr Munro’s submission. The Court of Appeal in Taueki describes band one as being appropriate:17

… for offending involving violence at the lower end of the spectrum of GBH offences. It is not an appropriate band for offences of extreme violence or violence which is actually life threatening.

16     Simon France (ed) Adams on Criminal Law (online looseleaf ed, Thompson Reuters) at [CA48.06].

17 At [36].

[37]   Your offending involved stabbing Mr Paul through the sternum, piercing his heart with a knife and causing his death. This goes far beyond the reach of band one. Given my conclusions above that there were three aggravating features of your offending—extreme violence, serious injury and the use of a weapon—I consider that your offending appropriately falls towards the upper end of band two.

[38]   I have tested that assessment by reference to other analogous cases. The Crown refers to three such cases involving single stab wounds causing death.18 Each attracted starting points of between eight and nine years’ imprisonment.

[39]   I accept that in all three cases there was an element of victim vulnerability which is not an aggravating feature of your offending. Otherwise, however and as  Mr Munro acknowledges, the cases are broadly similar, albeit he emphasises what he says are the distinguishing features of this case—self-defence and provocation. I have already rejected the former as having any material influence on my sentence. The latter is, as I have acknowledged, a modestly relevant consideration. Overall therefore I find the cases cited by the Crown as helpful in assessing a starting point.

[40]   I have also considered the cases cited by Mr Munro. He refers to R v Patangata in which the defendant was involved in a physical fight with her partner, blows were exchanged on either side, she subsequently uplifted a knife and stabbed him in the neck.19 Downs J did not accept that the facts gave rise to a legitimate claim of excessive self-defence. However, the deceased’s actions in kicking and briefly choking the defendant was said to modestly temper the starting point.20 A starting point of six years’ imprisonment was adopted.21 Likewise, in R v Rose, the defendant stabbed her abusive partner in the back with a knife following an argument.22 Thomas J adopted a starting point of three years and nine months’ imprisonment.23

18     See R v Olley [2012] NZHC 40; R v Kaihau [2013] NZHC 3192; and R v Scollay [2014] NZHC 465.

19     R v Patangata [2019] NZHC 744.

20 At [31].

21 At [32].

22     R v Rose [2017] NZHC 1488.

23 At [40].

[41]   Mr Munro also refers to the decision in R v Rakete where the victim was acting aggressively towards the defendant in the course of a domestic argument.24 He had a history of violence towards her.25 The defendant struck the victim over the head with a large wooden pepper grinder in response, causing the victim to fall and hit his head on the kitchen bench and then the floor. He died as a result. Whata J considered that the victim was the primary aggressor, and the defendant was fearful that she might be assaulted. He adopted a starting point of three years’ imprisonment.26

[42]   Finally, Mr Munro refers to R v Kirk in which the victim was armed with a meat clever.27 He began to advance on the defendant brandishing the cleaver. The defendant screamed at him before shooting him six times in quick succession. Clark J found that excessive self-defence was a mitigating feature of the offending. She considered that a starting point of four years’ imprisonment was appropriate.28

[43]   I do not regard these cases as especially helpful. Patangata, Rose and Rakete all arose in domestic environments characterised by a history of abusive behaviour on the part of the deceased and serious proximate offending against the defendant.29

[44]   By contrast, in the final altercation between you and Mr Paul, you were the aggressor. You chose to pursue him knowing you had a knife in your possession. He was backing away from you as you approached. His swing of the paling was, I find, an attempt to forestall your advance and an attack on him.

24     R v Rakete [2013] NZHC 1230.

25     At [34(a)].

26 At [36].

27   R v Kirk [2016] NZHC 1249 which I did not find of great assistance given the defendant’s use of a gun and the fact that the shooting occurred when the victim was advancing on the defendant with a meat cleaver in hand.

28 At [66].

29 For example, in Patangata, the deceased and the defendant had been hitting one another. The deceased twice kicked the defendant’s legs and grabbed her throat, choking her. They continued to exchange blows before the defendant, grabbing a knife from the wall above a barbeque, stabbed the deceased in the neck. In Rose, a case of excessive self-defence, the deceased became violent following an argument with the defendant and punched her around the head and body, causing bruising to her ribs, small cuts around her eye and a black eye. The defendant sent a text message to an associate in which she threatened to stab the deceased if he touched her again. The pair continued arguing. The deceased sat down but continued verbally abusing the defendant, saying things such as “you're gonna die bitch”. The defendant then stabbed him in the back with a small pocket knife. He later died due to complications from the stab wound, after initially refusing to be taken to the hospital. I consider that even though the defendant in Rose was not engaged in a physical fight at the time she stabbed the victim, the physical abuse was nevertheless far more proximate to the stabbing than Mr Paul’s conduct was in this case.

[45]   The cases therefore confirm me in my assessment that the starting point should be towards the upper end of band two. I adopt a starting point of eight years’ imprisonment. From that however I deduct six months (or 6.25 per cent) on account of provocation. The result is an adjusted starting point of seven years, six months’ imprisonment.

Personal circumstances

[46]   The Crown submits that an uplift of six months’ imprisonment is appropriate to reflect your significant criminal history which relevantly includes convictions for serious family violence offending (including charges of injuring with intent to injure and wounding with intent to injure) and four convictions for assaulting police officers. Mr Munro submits that your previous convictions are not relevant to the present offending and do not bear on your culpability, the need for deterrence or your risk of reoffending.30 I do not agree. The purpose of an uplift is to underscore that a continuation of broadly equivalent offending (in this case crimes of violence against the person) will invite a sentencing response. I consider an uplift of three months appropriate (3.33 per cent).

[47]   I turn now to your personal circumstances and the extent to which they mitigate your culpability in respect of the present offending. You are a 58 year old Māori man of Tuhoe, Tuhorangi, Ngāti Rangiwewehi descent. Your upbringing, like so many that appear before the Court, was married by hardship and trauma. One consequence of that upbringing is that you are described by clinical psychologist, Dr Loshni Rogers, as having an “entrenched internalised belief of being unsafe”. You need to maintain a sense of safety and control over your environment, have difficulties managing distress, have a quick temper, and are “in constant survival mode”. I consider these and other factors were directly relevant to your perception of the threat posed by Mr Paul and others on the night in question—in this way, they had a direct causative bearing on the decision-making that led to your offending.

[48]   While your background in no way excuses what you did to Mr Paul, it does go some way towards explaining it, in turn impacting on your culpability. Some discount

30     See Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [39].

is therefore appropriate to reflect these factors albeit that in the case of very serious offending such as this there is an emphasis on proportionality. It is important not to lose sight of the fact that at the centre of this whole process is a young man, antisocial although some of his conduct was, whose life was cut short as a result of your actions. I consider that in all the circumstances a discount of 15 per cent is warranted for personal circumstances.

[49]   I also consider that a discrete discount for remorse should be recognised. The author of the Provision of Advice to the Court report describes you as genuinely remorseful in respect of your offending. You said, “there’s no amount of words I can give to the victim’s family, no amount of words can bring him back”. Similarly, the writer of your psychological report considered your remorse genuine. I agree but note that there was at no time any offer to plead to a charge of manslaughter. I allow a discount of five per cent.

[50]   I therefore allow total discounts of 20 per cent which netted off against the uplift produces an end sentence of six years, three months’ imprisonment.

Minimum period of imprisonment

[51]   The only remaining question is whether I should impose on you a minimum period of imprisonment under s 86 of the Sentencing Act 2002. Under s 86(2) a court may do so if it is satisfied that the default non-parole period of one-third prescribed by the Parole Act 2002 is insufficient to hold an offender accountable, to denounce his conduct, deter him and others from committing the same or a similar offence, or to protect the community.31

[52]   The Crown submits that a minimum period of imprisonment of 50 per cent should be imposed given the aggravating features referred to above, the fatal consequences of your offending and the need for additional denunciation and deterrence. I note that this was the approach adopted in both the Olley32 and Kaihau33 decisions referred to in the Crown submissions. Mr Munro submits that no such

31     Parole Act 2002, s 84(1).

32     At n 18.

33     At n 18.

minimum period is appropriate by reference to the decisions in Patangata, Rose, Rakete, Kirk. As I have already indicated, I do not regard those cases as particularly helpful.

[53]   This is a case where, having rejected your defence under s 48 of the Crimes Act 1961, the jury’s verdict must be considered benign in the context of s 167(b). However, it would be inappropriate to ‘bulk up’ the non-parole period on this account. Nevertheless, as your psychologist reports, you are a person quick to anger and a “fighter” by natural disposition. Not even the intervention and wise counsel of your grandson was sufficient to stop you re-engaging with Mr Paul. You did so knowing you had a knife. It was entirely foreseeable how this could all end up. There is a particular premium on accountability, deterrence and denunciation in this context.

[54]   I therefore impose a minimum period of imprisonment of three years (48 per cent). I note that given your extensive history of violence parole may not, even at that point, be a realistic expectation unless you use the available time in prison to address the root causes of such offending, many of which may lie in your early upbringing, and to seek the assistance available to chart a better course on release.

Result

[55]Mr Hohua would you please stand.

[56]   On the charge of manslaughter, I sentence you to six years and three months’ imprisonment with a minimum period of imprisonment of three years.

[57]Stand down please.

Muir J