R v Ikamanu

[2012] NZHC 2755

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-044-002097 [2012] NZHC 2755

THE QUEEN

v

KEFU IKAMANU

Charges:         Manslaughter x1

Causing grievous bodily harm with intent to do such harm x1

Plea:               Not Guilty

Appearances: P Hamlin for Crown

S Lance for Prisoner

Sentenced:     19 October 2012

Manslaughter – 6 years, 9 months’ imprisonment;
Grievous bodily harm – 1 year, 6 months’ imprisonment (concurrent)

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            S Lance, Auckland

R V IKAMANU HC AK CRI-2010-044-002097 [19 October 2012]

[1]      Kefu Ikamanu, you are for sentence having been found guilty by a jury following trial on one count of manslaughter and one count of causing grievous bodily harm  with  intent  to  do  such  harm.    Manslaughter  carries  the  maximum penalty of life imprisonment.  The victim was your daughter Seini.  She was almost three years old at the time.

[2]      As you have been convicted of serious violent offences you are now subject to the three strikes law.  I am required to give you a warning of the consequences of another serious violence conviction.  You will also be given a written warning.  I ask the interpreter to assist you with that written warning as well.

[3]      The formal warning is this.  If you are convicted of any one or more serious violent offences 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.

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

Facts

[5]      The facts as I find them to be are important for the purposes of assessing your culpability and the appropriate sentence in this case.  In April 2007 Seini was born in New Zealand to you and your wife Sela.  In September that year when she was five months old Seini went to live in Tonga with her extended family.   You and Sela remained in New Zealand.  On 29 January 2010 Seini returned to New Zealand to live with you.  You were the primary caregiver for both Seini and her 18 month old brother while Sela worked extended hours at a home for the disabled.

[6]      On 24 March 2010 Sela left for work just before 3 o’clock in the afternoon. Later, in the early evening, Seini and her brother were playing noisily and running around.  You asked them to stop.  Seini ignored your request and just looked at you.

She continued to run around.  You became angry with her.  You were sitting in a chair in front of the television.   You reached out to your right from that chair, grabbed Seini’s arm, pulled her towards you and then swung her across in front of you before letting her go.  She was propelled into the wall.  As a result of this she sustained a fracture to her right shoulder but more significantly, she suffered serious head injuries.  As part of the incident and while still angry with her you went across to where she was lying on her back on the floor and stamped on her pelvic area. That caused the pelvic fractures.

[7]      Very shortly after that Seini began fitting and having seizures.   You called your wife at work.  She arranged to come home. You tried in your own way to assist Seini while you waited for Sela to come home.  You gave her water, took her to the shower and tried CPR.   Given her serious injuries your efforts to help her were ineffectual.  When Sela arrived home she called an ambulance.  Seini was taken to hospital in a critical condition with life threatening head injuries.

[8]      On 26 March, two days after the  incident,  you were interviewed by the police. You admitted you had caused the injuries to Seini’s head. When it was put to you  some  weeks  later  that  you  had  caused  other  injuries,  including  the  pelvic injuries, you denied that.

[9]      Seini died just over eight months later, on 6 December 2010 as a result of complications arising from the head injuries that you had caused.

[10]     I deal with the other injuries observed on Seini when she was admitted to hospital as they formed an important part of the Crown case that you were guilty of murder as opposed to manslaughter.

[11]     Sela’s evidence was she noticed a bruise on Seini’s forehead on the Monday of 22 March.  She was told Seini had been running with her brother, had stumbled and fallen and hit her head against a drawer.  Seini told her mother that was what had happened to her.  The next day Sela was away again from the home and when she returned she noticed a bruise near Seini’s eye.  You explained the children had been playing with a ball outside.   Seini had been on the deck and her brother had run

towards her and pushed her.  She had fallen down the steps.  Again Seini told Sela that is what happened.  She said her brother had pushed her and she had fallen down. The Crown invited the jury to infer you had caused those injuries and had assaulted Seini over a number of days before 24 March.   Having heard the evidence I am satisfied that the injuries Seini sustained on the Monday and Tuesday were as a result of accidents and were not part of any sustained abuse of her by you.  The incident on

24 March which led to her death was a one-off incident caused by your frustration at that time, which you almost immediately regretted after causing the injuries to her and in your own way, tried to do something about them.

[12]     You are 29 years old.  You had a good upbringing in Tonga.  You worked for the family for a short time before serving in the Tongan army.  When you arrived in New Zealand in 2007 you had some short-term jobs but after 2008 stayed home and looked after the children.  You have other children.  Sela is no longer working and is caring for  them.    She remains  supportive  of  you  and  describes  you  as  a  good husband, a good father and a good person.  She says, as she gave evidence at the trial, that you have never been violent towards her or children in the past.

[13]    The probation officer records that you were emotional and tearful when expressing your remorse and regret for the loss of Seini.  You are considered to be at a low risk of re-offending. A matter of concern is that you still suggest the offending was accidental.   Despite that, however, the probation officer reports you have expressed a willingness to address your offending and have completed a parenting course.

[14]     In her victim impact statement Sela recalls how beautiful Seini was and the hopes she had for her which have now been lost but she also reaffirms her support for you and says your offending was out of character.

[15]     As you have heard the Crown submits an overall starting point in the region of 10 to 13 years is appropriate for the totality of the offending.   It submits no significant discounts are available.   The Crown also seeks a minimum period of imprisonment.

Defence

[16]     Mr Lance submits this was one-off, out of character offending.  He submits the starting point for manslaughter should be less than seven years, perhaps five to six.  He accepts a modest uplift could apply for the other charge but argues for a full reduction for your offer to plead guilty to manslaughter.

Purposes and principles

[17]     In sentencing you I am required:

to hold you accountable for the harm done to Seini and the community for

such offending;

to promote in you a sense of responsibility for and acknowledgement of that

harm;

to provide for the interests of Seini and your family who are affected by your

actions;  and

of particular relevance is the need to denounce conduct such as this and to

deter others from committing the same or similar offences.

[18]     There is undoubtedly widespread and well-founded public concern about the unacceptable high level of physical violence against children in New Zealand.  The courts have consistently emphasised that adults in New Zealand who inflict violence and  force  upon  children  who  depend  upon  them  for  care  and  support  must understand such behaviour will be met with stern penalties.   Parliament has given practical effect to that and emphasised it by the enactment of the amendment to s 9A of the Sentencing Act  2002.   That  requires  the Court  in  this  case to  take into

particular account:

Seini’s defencelessness;

her death;  and

the breach of trust that you, her father, caused those injuries to her.

[19]     In terms of the relevant principles I am required to consider the gravity of your offending and your culpability.  The seriousness of the offending is reflected by the maximum term of life imprisonment.   I am also required to take into account your personal circumstances.

[20]     In assessing your culpability, which is central to your sentence Mr Ikamanu, I make it clear that I consider these offences to have been part of a one-off incident of violence towards Seini that arose out of your frustration at her misbehaviour on the evening of 24 March.  I accept the evidence of Sela, who gave evidence in this Court in difficult circumstances, that you were otherwise a good and caring husband and father and that you did not act violently towards her or the other children.  You have no history of violence of any kind.

[21]     When you grabbed Seini and propelled her into the wall I consider that you must have known what you were doing could cause serious injury to her but you simply did not understand the consequences of your actions could include death.  As Mr Lance submitted you simply do not know your own strength or did not appreciate it and you did not foresee the risk of death.  In the heat of the moment you carried on and then stamped on her.

[22]     There is no tariff case for offending of this nature.  I am conscious that these notes are being interpreted and I do not propose to discuss or record each separate case that I have considered but I confirm that I have had regard to the cases referred

to by counsel which I will note in the formal record of my sentencing notes.1

1      In fixing the appropriate starting point I have had regard to the cases of the English Court of Appeal decision of R v Horscroft (1985) 7 CR App R (S) 254 and the New Zealand cases of R v Leuta [2002] 1 NZLR 215 (CA); R v Woodcock [2010] NZCA 489; R v Broadhurst [2008] NZCA 454; R v Robinson HC Rotorua CRI-2007-063-2028, 27 November 2009;  R v Kershaw HC Palmerston North CRI-2003-54-2237, 29 October 2003;   R v Tahuri HC Wanganui CRI-

2009-83-677, 18 June 2010;  R v Donnelly [2011] NZCA 433; R v Hapuku [2012] NZHC 1314;
R v Ratana [2012] NZHC 811; R v Pene [2010] NZCA 387; R v Iorangi CA533/99 & 534/99,

30 March 2000;  R v Tai [2010] NZCA 598; and R v Taueki [2005] 3 NZLR 372 (CA). I note that R v Kershaw and R v Leuta were decided prior to the s 9A amendment.

[23]     It  is  obvious  that  the  circumstances  of  each  case  are  different  and  the culpability of each prisoner is to be assessed in the particular circumstances of the case before the Court.  The Court of Appeal has confirmed a trial Judge is in the best position to assess that overall culpability.

[24]     For example I consider your culpability in respect of the manslaughter charge to be less than the offenders in Donnelly, Hapuku and Ratana.  It did not have the same element of calculated harm as in Donnelly where the prisoner picked the child up and swung the child around by the ankles.   That action was also preceded by several assaults and further, Mr Donnelly failed to seek medical attention for the child.

[25]     I also consider your culpability to be less than that in Hapuku and Ratana.  In Hapuku the offender took no steps to seek assistance for the five month old child. He also never accepted responsibility for causing the fatal injuries, whereas you responded in the best way you could by ringing your wife and also accepted responsibility at an early stage.   The Crown submits little credit can be given for your attempts to assist Seini as you did not immediately call for medical help or an ambulance but I accept that is explained by your difficulties with the English language.  You called Sela instead and in your own way tried to help Seini.  In my assessment it is also important that at an early stage, at the family meeting at the hospital, you accepted responsibility for the injuries and apologised to Seini and to your family.

[26]     Mr Lance has relied on the case of Iorangi.  The father in that case lost his temper and threw his 17 month old son across a room.  Mr Iorangi was found guilty of manslaughter and later cases have calculated the starting point must have been between six and seven years.  That case was, however, before the Court of Appeal decision in Leuta which indicated an upward movement was required in sentences in this area and was also before the enactment of s 9A that I have referred to.

[27]     I consider in terms of the manslaughter alone a starting point of eight years’ imprisonment to be appropriate in this case.   There must also be an uplift for the related offending.   In Woodcock a two and a half year uplift was maintained for

assaults suffered by the victim prior to the fatal injuries.  However in that case there was a sustained pattern of abuse.   I consider an uplift of one year, six months to appropriately reflect the further conviction taking account of the totality principle. That takes the starting point for both offences to nine years, six months’ imprisonment.

[28]   I then turn to your personal circumstances.   There are no aggravating circumstances.  There are a number of positive features.  One is, as I have referred to, your early acknowledgement that you caused the fatal injuries.  You accepted that before your extended family and also in your dealing with the police, two days later, even at a time when it was made clear to you that if Seini died you would be charged with murder.   Although you find it difficult to accept responsibility for the other incident I accept  your actions show  you are remorseful and have motivation to change.  You are entitled to a credit for those positive features which I fix at one year.

[29]     In my judgment you are also entitled to a significant discount for your offer to plead guilty to manslaughter.   From an early stage that offer was made to the Crown on the most serious charge and it was confirmed in writing.  Mr Hamlin has submitted that the manslaughter was not accepted because it did not reflect the seriousness of the other offending and refers to the other charge on which you were convicted.   However, while you were convicted on that additional charge, I am satisfied this matter could also have been resolved if the Crown had been prepared to accept manslaughter on the principal charge.  Given your early admission and offer to plead guilty to manslaughter I consider a reduction in the region of 20 per cent is appropriate in relation to that charge. That leads to an end sentence of six years, nine months’ imprisonment.

[30]     The last  issue is  whether a minimum  period  of  imprisonment  should be imposed as sought by the Crown.  The Crown rely on the decision of R v Donnelly.2

In that case the Court of Appeal considered the Judge had failed to take into account denunciation and deterrence at the stage of considering whether a minimum period

of imprisonment was necessary.

2      R v Donnelly [2011] NZCA 433.

[31]     I  have  regard  to  s 86.     That  section  provides  the  Court  may  impose  a minimum period if satisfied the standard parole period is insufficient for any of the

following purposes:

holding you accountable for the harm;

denouncing your conduct;

deterring you;  and protecting the community.

[32]     The assessment of whether such a minimum non-parole period is called for must be informed by the relevant purposes and principles of the Sentencing Act and the circumstances of the particular case.  Conduct both before and after the event is relevant.  In your case, given the matters I have referred to above I am satisfied the standard  non-parole  period  is  sufficient  to  address  the  relevant  purposes  and principles of the Act, and the factors referred to in s 86.  In particular I note this was a one-off, out of character incident for which you accepted responsibility at an early stage at least in relation to Seini’s fatal head injuries.

[33]     The sentence I have imposed is sufficient to hold you accountable and to denounce your conduct.   As for deterrence, the starting point addresses that.   No issue arises about community protection.

[34]     Mr Ikamanu please stand.  On the count of manslaughter you are sentenced to six years, nine months’ imprisonment.  On the count of grievous bodily harm you are sentenced to one year, six months’ imprisonment.   The sentences are concurrent.

The effective sentence is six years, nine months’ imprisonment.

Venning J