R v Hunt

[2016] NZHC 881

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2015-087-885 [2016] NZHC 881

THE QUEEN

v

CAMERON HUNT

Hearing:

4 May 2016

(Heard at ROTORUA)

Appearances:

G Hollister-Jones and S Davison for Crown
G Tomlinson for Defendant

Judgment:

4 May 2016

SENTENCING REMARKS OF LANG J

R v HUNT [2016] NZHC 881 [4 May 2016]

[1]      Mr Hunt, you appear for sentence today having pleaded guilty to a charge of manslaughter. That charge carries a maximum sentence of life imprisonment.

Background

[2]      I take the facts of your offending from a summary of facts that the Crown has prepared. You, through your counsel, acknowledge the correctness of that summary.

[3]      The incident that led to the charge occurred on 2 July 2015.  On that day, you and your whangai brother, Barry, and two others began drinking at your address in Kawerau.  You began drinking at about 12 noon and carried on drinking throughout the afternoon.   By 5 pm you were drinking spirits.   The alcohol ran out and you made a trip to the liquor store to purchase more boxes of alcohol.  By this stage all members of your group were intoxicated.  You continued drinking throughout the evening until you decided that you wanted to go to bed.  Your brother Barry did not want you to go to bed, and an argument ensued.  This led to physical blows being struck, at first in the kitchen area of the house, and then outside.   Your cousin intervened in an effort to stop the fight.   Barry then turned his attention to your cousin and began punching him.

[4]      At this point you went over to the garage and picked up a large axe.  This weighed 2.28 kilograms.  You approached Barry and struck him once on the side of the head with the axe.   This caused him to drop immediately to the ground in an unconscious state.  When your cousin asked you why you had done this, you went around the side of the house where you dropped the axe and burst into tears.

[5]      The ambulance was called and immediately transported Barry to hospital. Unfortunately, however, his injuries were unsurvivable.  He died in the early hours of  the  next  morning  after  never  having  regained  consciousness.    Fortunately, members of your family were able to be at Barry’s side when he died.

[6]      You did not initially know that Barry had died.  You were taken to the police station, where you were questioned.   I accept  your counsel’s description of the

interview and the frankness with which you answered the questions put to you by the police. You freely acknowledged your responsibility for the incident from the outset. When you were told that Barry had died, you immediately broke down and demonstrated the deepest possible grief.

[7]      You told the police that Barry had first been fighting with you, and that he had then begun fighting with your cousin.  At the time that you hit him with the axe, Barry was on top of your cousin punching him.  When you were asked how hard you had hit Barry on a scale of one to ten, with ten being the hardest, you said that you had hit him with force at a scale of ten. You later said, however, that you had hit him with a scale of around five or six but thought it must have been ten because you had killed him.   You said that your motivation in striking Barry with the axe was to knock him out so that the fight with your cousin would finish and everybody could go to bed.

[8]      A pathologist subsequently carried out a post-mortem examination on Barry. This revealed that he had sustained an impact wound to the right side of the skull behind the ear.  His skull was shattered, with a fracture running across the top of his skull and another across the bottom of the skull behind the eye socket.  There was also bleeding on the right side of the brain at the impact site, and further bruising to the brain where the skull was fractured.

Sentencing Act 2002

[9]      In any case of offending as serious as this, the Court must take into account principles of deterrence, denunciation and the need to hold the offender accountable. It is simply not acceptable to grab an axe and strike another person in the head, notwithstanding the fact that they may be punching another person at the time.  On the other hand, it is important that the Court imposes a sentence that is broadly consistent with those imposed in other cases.  I say “broadly” advisedly, because as the arguments of counsel demonstrate, the facts of no two cases are ever the same.

[10]     One of the factors the Court is required to take into account is the effect that the offending has had on victims.  In this case, of course, the prime victim was Barry. He has paid the ultimate price, because at 31 years of age he has lost his life.  He will

never be able to enjoy the future that he had with his family and friends.  He will never be able to see his children grow up and to participate in family activities.

[11]     The other victims, of course, are Barry’s family and friends.  They have lost a loved son, brother and companion.   He will never return.   Today I have heard a deeply moving victim impact statement read to the Court by your sister.  She puts in eloquent, yet measured, terms the effect that this offending has had on the family. You, of course, are part of that family.   You, too, have suffered the loss of your whangai brother.

Starting point

[12]     The first step that I must take in the sentencing process is to fix a starting point for the sentence to be imposed on you.  This means the sentence to be imposed having regard to the nature of the offence, but putting to one side any characteristics or factors that are personal to you.

[13]     There is no guideline, or tariff, judgment of the Court of Appeal in cases involving  manslaughter.     That  is  because  the  crime  of  manslaughter  can  be committed in a wide variety of ways.  The approach that the Court must take is to look at other comparable cases.   The Court is also entitled to have regard to the sentencing principles contained in a case called R v Taueki.1   This is used as a cross- check against the starting point indicated in other cases.

[14]     Both counsel have proceeded on the basis that the offending in your case has some similarities to those cases in which death has been caused by a single blow by a knife.   They have provided me with a wide range of authorities showing that a starting point in such cases is between six and nine years imprisonment.2     The comparison of the use of a knife to cause death by a single blow is apt in some respects.  The consequences caused by a single blow by a knife to the abdomen are,

however, very much a matter of chance.  The blow may strike a vital organ or it may

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

2      R v Olley [2012] NZHC 40; R v Kaihau [2013] NZHC 3192; R v Scollay [2014] NZHC 465; R v

Eastham [2013] NZHC 2792; R v Emery HC Auckland CRI-2008-092-001285, 13 February
2009; R v Edwardson HC Rotorua CRI-2006-069-1101, 27 April 2007; R v Raivaru HC Rotorua
CRI-2004-077-1667, 5 August 2005.

not.    In  your  case,  however,  you  swung  the  blunt  end  of  a  heavy  axe  with considerable force at the side of your brother’s head.  On any view of events, that type of action was going to cause extremely serious consequences.

[15]     Originally you were charged with murder.  That charge would have required the Crown to prove that you either intended to kill your brother, or that you intended to cause him bodily harm that you actually appreciated was likely to cause his death. After consultation with the Solicitor-General, the Crown agreed to accept a guilty plea to a charge of manslaughter.  In taking that step, the Crown must be taken to acknowledge that it would have difficulty proving either of the intents necessary to found a charge of murder.

[16]     Even though you may not have had any intention to kill your brother or any appreciation that what you were doing was likely to cause his death, nevertheless you must have known that your actions were going to cause your  brother very serious harm.  Even an intention to knock somebody out by striking an axe against the side of their head must carry with it appreciation that very serious consequences are likely to follow.  Having regard to Taueki factors, the important factors here are that you used a weapon to strike a blow to the head.  This had the consequence of causing your brother’s death.

[17]     When I take into account all those factors, I am satisfied that an appropriate initial starting point is one of eight and a half years imprisonment.

[18]     Section 9(2)(c) of the Sentencing Act 2002 also requires the Court to take into account the conduct of the victim.  In Taueki, the Court of Appeal explained that in cases where the victim had been guilty of provocative acts towards the offender, this may be taken into account in fixing the starting point.3   The Court emphasised, however, that the acts in question must have been serious, and that they must have been the operative cause of the crime committed.  I am satisfied that Barry was the

aggressor on that night.  He initially began punching you because you wanted to go to bed.  He then turned his attention to your cousin and began punching him whilst

he was on the ground.  I am satisfied that those actions were what caused you to grab

3      R v Taueki, above n 1, at [32].

the axe in a misguided effort to knock him out and thereby bring an end to the incident.   I consider that Barry’s actions were provocative in terms of Taueki, and that a discount from the starting point is warranted.  I propose to reduce the starting point of eight and a half years imprisonment by one year to reflect this factor.

Aggravating factors

[19]     There  are  no  aggravating  factors  personal  to  you  that  would  operate  to increase the starting point I have selected.

Mitigating factors

[20]     I now need to consider whether, and to what extent, the starting point should be reduced to reflect mitigating factors that are personal to you.

Remorse

[21]     Your counsel submits that the Court should provide a discrete discount to reflect the very deep remorse you have shown throughout.   Sentencing judges are regularly asked to provide discounts in respect of remorse shown by an offender.  In some cases the remorse is based only on the fact that the offender feels sorry for himself or herself and the predicament in which he or she has been placed.   I am satisfied that that is not the case here.  From the very outset you have demonstrated deep remorse and willingness to take responsibility for your actions.  I know that the consequences of your acts are going to resound with you throughout your life, as they will with your whanau.

[22]     This is an appropriate case in which to exercise my discretion to provide a discount in respect of remorse.  I propose to reduce the starting point by nine months to reflect that factor.

Guilty plea

[23]     You are also entitled to a further discount in respect of your guilty plea.  This came at the earliest opportunity once the Crown offered to reduce the charge to one of manslaughter.  You had indicated from the outset that you would be prepared to

plead guilty to that charge.  In doing so, you have spared your family the ordeal of reliving this tragic event through a criminal trial.  Your sister spoke today of the fact that the family is extremely grateful that they did not need to go through the ordeal of a defended criminal trial.

[24]     I propose to give you a discount of one year eight months, or 25 per cent, to reflect that fact.

Sentence

[25]     On the charge of manslaughter to which you have pleaded guilty you are sentenced to five years one month imprisonment.

Lang J

Solicitors:

Crown Solicitor, Tauranga