R v Kapea HC Hamilton CRI-2009-019-10579

[2011] NZHC 163

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2009-019-10579

THE QUEEN

v

BRYCE TAMATI KAPEA TAUIRA KAPEA

TERENCE JOSEPH TEUAKI BEAZLEY

v

CRI 2009-019-10579

v

Hearing:         22 February 2011

Appearances: R G Douch for Crown

R J Laybourn and L S Caley for B Kapea
K W Burroughs and A M Jones for T Kapea
B J Hesketh for Beazley

Judgment:      22 February 2011

R V KAPEA HC HAM CRI-2009-019-10579 22 February 2011

SENTENCING NOTES  OF DUFFY J

Solicitors:             Almao Douch, PO Box 19173, Hamilton 3244

K Burroughs, PO Box 19307, Hamilton 3244

Counsel:               R J Laybourn, PO Box 936, Hamilton 3240

B J Hesketh, PO Box 19328, Hamilton 3244

[1]      Bryce Kapea, Tauira Kapea, and Terence Beazley you appear for sentence today, having each pleaded guilty to and being convicted of one count of the manslaughter of Jaycee Dallas Van Der Drift.

Facts

[2]      On the night of the offending, Mr Van Der Drift, the deceased, was drinking at a gathering at his house while the three of you were drinking at a gathering in the neighbouring house. Over the course of the evening the majority of people at each gathering became intoxicated.  It seems that persons attending the house where you were gathered often parked in the driveway of Mr Van Der Drift’s home.   He objected to this and made that clear to those whom he thought were responsible.

[3]      At approximately 1.30 am Tauira Kapea and Terence Beazley returned to the property  and  joined  Bryce  Kapea.  All  three  of  you  gathered  at  the  end  of Mr Van Der Drift’s driveway. Mr Van Der Drift, who was armed with a hockey stick, and his brother-in-law also went to the end of this driveway.   There was a verbal confrontation during which Mr Van Der Drift drew an imaginary line with the hockey stick and told the three of you not to cross it.

[4]      When Tauira Kapea crossed this line he was kicked by Mr Van Der Drift. Tauira Kapea responded in kind before collecting a claw hammer from the vehicle he had arrived in, while Mr Beazley collected a tyre iron.  One or more of you then issued invitations to fight, at which point Tauira Kapea and Mr Beazley dropped and threw away their weapons, respectively.  Bryce Kapea stepped forward to engage in fighting with Mr Van Der Drift, who then struck Mr Kapea’s head with the hockey stick, the force of the blow breaking the stick.

[5]      Then,  in  some  way  unknown,  Bryce  Kapea  gained  possession  of  the previously discarded hammer.  It is unclear whether Bryce Kapea picked up the hammer  or  was  handed  it  by  another  offender.    Nothing  much  turns  on  that. Bryce Kapea then struck one blow to Mr Van Der Drift’s head with the hammer. The blow landed in front of his left ear, killing him immediately.  Mr Van Der Drift fell to the ground whereupon he was further kicked and hit with the hammer.  When others intervened, the three of you fled.

[6]      I have taken those facts from the police summary of facts, to which you have pleaded guilty.  Given there has been no contest to those facts, this is how I see the circumstances that night for the purposes of sentencing.

Victim impact statements

[7]      It is clear from the victim impact reports and what we have heard today that the death of Mr Van Der Drift has severely impacted on his family.   The victim impact report from his partner reveals the emotional pain and suffering which she has undergone since his death.   That death, as you heard today, put an end to the plans which she and Mr Van Der Drift had made to spend their lives together, buy a home and have children.  The usual goals that many young couples in this country have.  Goals which have been destroyed by your needless and thoughtless criminal conduct.  She says that every day is now simply a battle to keep living.

[8]      Mr Van Der Drift’s mother describes in her victim impact report “the pain, the hurt, the emptiness, the anger” which she has felt since Mr Van Der Drift’s death.  She was present when he suffered the fatal injury.  She has been left with

images in her head of her son lying on the ground dying in a pool of blood.  She too finds it hard to get through the empty days that now face her.

[9]      Mr Van Der Drift’s siblings have each provided a victim impact report.  His sister Aleanna arrived at the scene of Mr Van Der Drift’s death and so she too saw his lifeless body.   She describes the loss of the close relationship she had with Mr Van Der Drift and the emotional pain, suffering and anger which she has felt since his death.  His other sister Jaya was living in Australia and so the last time she saw Mr Van Der Drift was one month before his death when he visited her in Australia.  The impact of his death has been significant on her as well.

[10]     The victim impact report of Mr Van Der Drift’s father reveals the pain and suffering which he now endures as a result of his son’s death.   In the report he describes the loss of his son as being like the loss of a limb or some other part of his body.  He says that he will never function in the same way again.  He describes it as like losing a piece of his heart, and says he will not be whole until he meets up with his son again.

[11]     I now turn to consider the position of each offender individually

Bryce Kapea

Personal circumstances

[12]     You are 27  years old.   You left  school at  13  years of age and became involved with a gang known as the West Side Outlaws.   You say that you are no longer involved with this gang but you remain in good standing with it.  You are the father of seven children with whom you maintain regular contact.  You have never been employed and rely on benefits from Work and Income.  You display a harmful pattern of drug and alcohol abuse.  That has led you to where you are today.  You have 21 convictions over 10 years, seven of which are for violent offending.

[13]     You were intoxicated at the time of the offending and you say that you are unable to remember any events that occurred after Mr Van Der Drift struck you on the head with the hockey stick.

[14]     You have expressed regret and remorse, but you maintain that Mr Van Der Drift played a part in the event which led to his death.  You have said that you are willing to make amends by attending rehabilitative programmes.  However, you have done so in the past, but still you continue to offend.   The probation officer who prepared your pre-sentence report says that you pose a high risk of re-offending, especially when intoxicated.

Tauira Kapua

[15]     You are 18 years old and were 17 at the time of the offending.   You left school at 15 years of age.  You are described in the pre-sentence report as someone who is reserved and cautious when dealing with strangers.   You have a close relationship with your mother, who has supported you since you left school.  Like your  elder  brother  Bryce  Kapea,  you  have  been  involved  with  the  West  Side Outlaws.   You state that since you have been in custody you have ended this association.  The probation officer who prepared your pre-sentence report describes you as appearing to be oblivious to what was occurring around you, that you have shown little insight into the offending, though you have expressed remorse for what occurred.  You are said to accept some responsibility for the offending, but you also see Mr Van Der Drift as bearing some responsibility for what occurred.   You too were intoxicated at the time of the offending.  The probation officer who interviewed you formed the impression that you were willing to make amends by complying with the sentence imposed on you.   However, he found it difficult to assess your motivation to change.   He considers that you pose a high risk of re-offending and harm to others.

[16]     You have six previous convictions following appearances in the Youth Court one of which was for aggravated assault with a weapon.

Terence Beazley

[17]     You are 21 years old.  You left school at 14 years of age.  You were on bail when you committed this offence.   You have previously been employed in short term labouring jobs.  Your partner of three years is pregnant.  You maintain a close relationship with your family.  You were a member of the West Side Outlaws, but you say you no longer wish to belong to this gang.  You have no harmful pattern of alcohol or drug abuse, but you do indulge in binge drinking.   You accept responsibility for being involved in the assault on Mr Van Der Drift, but not for his death.  You have said to the probation officer who prepared the pre-sentence report that you believe that Mr Van Der Drift did not deserve to die and that he was a good man.  Those comments are consistent with the letter you have read in court today. You became involved in the incident as a result of returning from a bike ride and finding Bryce and Tauira Kapea in a confrontation with Mr Van Der Drift.

[18]     The probation officer reports that you have demonstrated remorse, insight into the offending and are willing to make amends and accept your sentence.  You are said to be “moderately” motivated to attend programmes in prison.   You have acknowledged the role that alcohol, your lifestyle and the gang ethos played in the events that led to the offending.  You are assessed by the probation officer as posing a medium risk of re-offending, and a high to medium risk of harm to others.

Submissions

[19]     When I come to consider the submissions I have heard today I find there is much common ground between the submissions the Crown makes on the appropriate sentences to impose on you and the submissions of your counsel.

[20]     All counsel are agreed that the offending features the following aggravating circumstances: multiple attackers, violence and use of lethal weapons resulting in death; a high level of harm, indicated by victim impact statements; previous convictions; and there is a separate issue of unlawful entry into a dwelling place, which the Crown relies on.  I note your counsel did not accept that.  This issue must be at the very lower margins of relevance, if at all, given that it was on the driveway.

[21]     All counsel also agree that the following mitigating factors are present: guilty pleas, remorse and more limited involvement for Tauira Kapea and Terence Beazley as  well  as  youth  in  the  case  of  Tauira  Kapea.    Defence  counsel  also  point  to Mr Van Der Drift’s conduct as a factor to be taken into account.

[22]     All counsel accept the aggravating and mitigating factors of the Sentencing Act 2002 listed above, though they disagree as to their general significance and their significance regarding particular offenders. All counsel accepts that imprisonment is appropriate.

Crown Submissions

[23]     The Crown submits that Bryce Kapea, as the eldest and the one who struck the fatal blow, must take the most responsibility.  However, the Crown describes this as a “joint enterprise.”  Tauira Kapea and Terence Beazley were also associated with the West Side Outlaw gang and the Crown says each lent support and endorsed the actions of the other. Though Bryce Kapea delivered the final blow, it could have been any of them.  Further, the Crown says, assaulting Mr Van Der Drift after he had fallen from the fatal blow to his head, indicates that each of you were committed to the violent enterprise.   To some extent this is a realistic assessment of your culpability.   Nonetheless, I see Tauira Kapea and Terence Beazley being present more as a result of their conduct following a train of events which seem to have gained a momentum of their own.  I see each of you as being there in the role of persons supporting, helping and encouraging Bryce Kapea in his actions against Mr Van Der Drift.

[24]     The Crown says that the primary focus in sentencing Bryce Kapea is the need to denounce and deter gang-associated street violence and protect the public, which is achieved by a lengthy period of incarceration.

[25]     The Crown has approached the sentencing analysis using the sentence tariff bands in R v Taueki [2005] NZCA 372, [2005] 3 NZLR 372 as a guideline. The Crown says that the aggravating features of the offending place the offending within band two, which yields a spectrum of sentences between five and 10 years

imprisonment.  The Crown considers that offending of the type we are dealing with attracts a starting point within the range of approximately eight years and it proposes the following starting points for each of you:

a)        Bryce Kapea: eight to nine years b)     Tauira Kapea: six to seven years

c)        Terence Beazley: the Crown has not suggested a starting point in your case.

[26]     The Crown asks that I impose a minimum term of imprisonment on each of you.  For you Bryce Kapea and Terence Beazley the Crown seeks a minimum term of two thirds of the sentence of imprisonment that  I impose on  you.   For you Tauira Kapea,  the  Crown,  in  recognition  of  your  youth,  asks  that  I  impose  a minimum term of one half.

Defence Submissions

Bryce Kapea

[27]     Bryce Kapea, your counsel accepts that your offending comes within band two of Taueki, but he submits that it is at the lower end of the five to 10 year band. Your counsel proposes a starting point of five to seven years imprisonment, which is then to be significantly reduced by the mitigating features arising from the offence, and those relating to you.

[28]     Your counsel says that the blow to your head that occurred immediately before  you  committed  the  offence  is  a  significant  personal  mitigating  factor. Medical examinations confirm that you suffered a small subdural haematoma and brain injury as a result of the blow administered by Mr Van Der Drift.  According to the medical doctor, this “would have been sufficient to cause cerebral irritation and significantly influence your behaviour at the material time” and may have caused “confused and disorientated information processing”.  The doctor concludes that it is possible that you reacted to a hammer being placed in your hand in an instinctive

manner, and explored but eventually rejected the defence of non-insane automatism. You maintain that you cannot recall the events that transpired following this blow.

Tauira Kapea

[29]     Your counsel submits that you should receive a significantly lower sentence because of your youth; and because your actions were not “linked directly to the death of the Mr Van Der Drift”, as you had discarded your weapon and none of the blows you administered were likely to cause serious injury.

[30]     Your counsel submits that a starting point of between three and five years imprisonment is appropriate and that you should not incur an uplift for your one previous offence; but be given a reduction to approximately two years for your guilty plea, remorse, age, and lesser role in the events.

Terence Beazley

[31]     Your counsel submits that you have “expressed deep remorse and empathy for Mr Van Der Drift’s family”, and in that regard I note the apology you have given today.  You also appreciate, and said in court today, that Mr Van Der Drift’s family may be “less than forgiving towards you.”  Your counsel also refers to the insight and motivation to change which you have demonstrated since the offending and the support from your family.

[32]     I have received supporting references  which  I have carefully considered. Two are from whanau, and one is from Ms Biddle, a Victoria University Lecturer in Maori Studies. Ms Biddle notes the impact of gang life, drug and alcohol use, and oppression on your conduct. Ms Biddle, Ms Te Ata Tuhoro, and Ms Ropiha who have known you for many years, indicate that your maturity has increased since your time on bail in the East Cape.

[33]   Your counsel proposes a starting point of between five and six years. Considering  the  mitigating  factors  and  lesser  role  played  by  you  your  counsel submits that an end sentence of between three and four years is appropriate.

Sentencing principles

[34]     In forming a view on the appropriate sentences to impose on you I must have regard to the Sentencing Act.   The relevant parts of the Sentencing Act for this purpose are: s 7, which sets out the purposes of the Sentencing Act; s 8, which sets out the principles; s 9 relating to aggravating and mitigating factors; s 10 relating to any offer to make amends; and ss 16 and 17, which deal with imprisonment factors.

Purposes

[35]     I consider, in terms of s 7 and the purposes of sentencing, that the purposes potentially applicable here are:

a)       to hold each of you accountable for harm done to the community by your offending (s 7(1)(a));

b)to promote in each of you a sense of responsibility for, and an acknowledgement of, that harm (s 7(1)(b));

c)        to provide for the interests of the victim of the offence (s 7(1)(c));

d)       to denounce the conduct in which you were each involved (s 7(1)(e));

e)       to deter each of you or other persons from committing the same or a similar offence (s 7(1)(f));

f)        to protect the community from each of you (s 7(1)(g)); and

g)        to assist in your rehabilitation and reintegration into the community (s

7 (1)(h)).

Principles

[36]     Section 8 sets out the general principles of sentencing that I must consider. Those that I consider potentially applicable are that:

a)       I must take into account the gravity of the offending in the particular case, including the degree of culpability of each of you (s 8(a));

b)I must take into account the seriousness of the type of offence, in comparison  with  other  types  of  offences,  as  indicated  by  the maximum penalties prescribed for the offences (s 8(b));

c)       I must impose a penalty near to the maximum penalty prescribed for the offence, if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate (s 8(d));

d)I must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances (s 8(e));

e)       I  must  take  into  account  any  information  provided  to  the  Court concerning  the  effect  of  the  offending  on  the  victim  –  here  the victim’s family (s 8(f));

f)        I must also impose the least restrictive outcome that is appropriate in the circumstances (s 8(g)); and

g)       I must take into account your personal, family, whanau, community, and cultural background in imposing a sentence (s 8(i)).

[37]     In this case, given the seriousness of the offending ss 16 and 17 of the Sentencing Act are not applicable.  I also emphasise that I certainly take into account everything I have heard today and everything I have read in the written submissions that have been made available to me.

Sentencing approach

[38]     I want to explain to you, Messrs Kapea and Beazley, and to your whanau and friends, and to the whanau and friends of Mr Van Der Drift in this courtroom, that as I work through the sentencing process I have to adopt a starting point for a term of imprisonment.   Everyone here recognises a term of imprisonment is inevitable.   I must then take into account aggravating factors, which can result in that starting point being increased.   I then take into account mitigating factors and reduce that figure.  So the terms of imprisonment I will be referring to in respect of each of you will vary until I work my way through to the final outcome when I get to the sentence end point.  You will have to be patient and listen to that process.  You will not know the outcome until I reach the sentence end point.

[39]     The deadly blow which caused Mr Van Der Drift’s death was wielded by Bryce Kapea, and so I will treat him as the principal offender.  Tauira Kapea and Terence Beazley were present at the time the blow was struck.  Their presence and conduct towards Mr Van Der Drift throughout the heated scene and altercation, which   led   to   Mr   Van   Der   Drift’s   death,   shows   that   Tauira   Kapea   and Terence Beazley were there in the role of accomplices to assist and lend support in what they all must have recognised was likely to be a violent incident involving them against Mr Van Der Drift and his brother-in-law.   I accept the Crown’s submission that in principle it might have been any one of you who actually struck the fatal blow.   I consider the circumstances to resemble those in R v Jamieson [2009] NZCA 555, where the Court of Appeal found that where there are a group of offenders involved in a crime of violence against the person and the crime is unplanned and spontaneous there is only limited scope to differentiate between the roles of the principal offender and the accomplices. I consider, therefore, that the culpability of the accomplices warrants a starting point that is close to that of the principal offender.

[40]     I consider that this is one of those cases where, in sentencing for the offence of manslaughter, it is appropriate to apply the sentencing tariff bands from, and to adopt the approach set out in Taueki.   Having done so, I will then consider the sentences imposed for manslaughter in comparable cases as a cross check.   I acknowledge that there is no tariff for manslaughter sentences, and that the court has a broad sentencing discretion.  It has been noted before that sentences for grievous bodily harm that follow the Taueki principles can result in higher sentences than those that are imposed in some manslaughter cases.  I consider that but for the death of Mr Van Der Drift, the circumstances would have come within those to which the Taueki principles are regularly applied.   I consider that this is a case, therefore, where it is proper for me to apply the Taueki principles in the way the principles are usually applied in grievous bodily harm cases.

[41]     I will deal first with the sentence for Bryce Kapea

[42]     I consider that the upper limit of band two in Taueki provides an appropriate starting  point.     Taueki  band  two,  which  ranges  between  five  to  10  years

imprisonment, applies to grievous bodily harm offences that feature multiple aggravating features.  Here the qualifying aggravating features are present: violence, an attack to the head, a life threatening injury, use of a lethal weapon and multiple attackers.  When I take these features into account I am satisfied that an appropriate starting point is eight years imprisonment.  I am not going to add to that aggravating features of the offending because I consider these are inherent in the starting point which I have chosen from the range of starting points in band two of Taueki. To do otherwise would be to double count those factors.

[43]     I next turn to consider if there should be any discount for the circumstances of the offending.   I have considered the Crown’s submissions on this topic.   The Crown submits that there should be no such discount.   The Crown submits that I should pay no regard to the conduct of Mr Van Der Drift.  The Crown accepts that Bryce Kapea struck Mr Van Der Drift in response to his use of the hockey stick. Nonetheless, the Crown submits that the response from Bryce Kapea was neither defensive nor in response to provocation and, therefore, the use of the hockey stick has little relevance to determining the sentence to be imposed.   I accept that the striking of Mr Van Der Drift cannot be justified as defensive.  Nor do I consider it can be seen as a response to provocation.  Any provocation inherent in Mr Van Der Drift’s actions has already been acknowledged by the Crown’s willingness to accept guilty pleas to manslaughter and to abandon the murder charges.  Had you stood trial for murder and the jury accepted you were provoked, the outcome would have been a guilty verdict on manslaughter.

[44]     Bryce Kapea, your counsel submits that Mr Van Der Drift’s application of the hockey stick, with force, to your head is a relevant consideration when it comes to considering if there should be any discount for the injury you suffered following that blow.   I consider that this factor is relevant under s 9(2)(c) of the Sentencing Act, which requires me to consider the conduct of the victim when assessing the mitigating factors to take into account regarding the offending.

[45]     I consider the blow to Bryce Kapea’s head, and the injury it caused, is a relevant mitigating factor under s 9(2)(c), which should influence whether or not a discount is given.  The blow occurred at a time when Messrs Kapea and Beazley had

discarded their weapons and where those involved in the incident had agreed to resolve  their conflict  through  the use of physical force.    They were  on  private property.   In this circumstance the extreme force with which Mr Van Der Drift applied the hockey stick to Bryce Kapea’s head and Mr Van Der Drift’s decision to maintain using a weapon in the confrontation seems to me to warrant some consideration.  Had this blow not occurred there may have been no response in kind. I understand Mr Van Der Drift was a large, armed man supported by his brother-in- law. The victim group was outnumbered by only one attacker.   Further, Messrs Kapea and Beazley did not appear to attack as a group.  I consider the circumstances of the offending are complicated by the mutual violence that occurred that night.

[46]     I accept the Crown’s submission that the background to the offending was Mr Van Der Drift protecting his property.   He was standing at the entrance to his driveway. His drawing an imaginary line in the sand with his earlier use of the hockey stick could be taken as a warning to Messrs Kapea and Beazley not to come any further.   Nonetheless, I consider that what transpired after that changed the circumstances and overtook any probable view that Mr Van Der Drift was simply protecting himself and his property when he stuck Bryce Kapea on the head with the hockey stick with the force with which that blow was applied.

[47]     I propose,  therefore,  to  give  some  limited  recognition  to  the  conduct  of Mr Van Der Drift that night as a mitigating factor relating to the offending.   This reduces the starting point to seven and a half years imprisonment.

[48]     Before I proceed further through the sentencing process I propose to consider the starting points adopted in comparable manslaughter sentencings.

[49]     In R v Tai [2010] NZCA 598 (a Solicitor-General’s appeal to the Court of Appeal against a sentence imposed in the High Court): Mr Tai punched and kicked the victim in the head with considerable force. The victim died due to either the initial punch or his fall to the ground. Mr Tai pleaded guilty to manslaughter. The Court of Appeal found that the offending properly fell within band 2 of Taueki, involving the aggravating factors of death, attacks to the head and a vulnerable

victim (when lying on the ground).  The Court of Appeal imposed a starting point of seven years due to it being a Solicitor-General’s appeal.

[50]     In R v Jamieson the appellants were found not guilty of murder, but guilty of manslaughter for a group attack in which they punched, kicked and stomped the victim to death. The three principal offenders received a starting point of nine years imprisonment. The Court found that there was only limited scope within which to differentiate the roles played by individuals where the crime was unplanned and somewhat spontaneous. Aggravating features included: group attack, attacking the head, vulnerability of the victim, fatal outcome, kicking and stomping the victim which the Court found was “little removed from the use of a weapon” (at [35]).

[51]     R v Selby & Fraser HC Auckland CRI-2007-092-20293, 4 February 2010: two offenders were charged with murder and manslaughter after one of them stabbed and killed the victim following an inter-group verbal and physical altercation.  The aggravating factors were: willing participation in the use of knives, some pre- meditation, threatening behaviour, and that the offending occurred while they were facing other serious charges, though the latter was not given significant weight. Mitigating  factors  were:  the  offenders  did  not  actually  participate  in  the  fatal stabbing, there was no clear intention to administer lethal force.  A starting point of eight years imprisonment was imposed (at [48]).

[52]     R v Edwardson HC Rotorua CRI-2006-069-1101, 27 April 2007: following an argument, the victim and the offender began fighting when the offender took out a small blade from her jacket pocket and stabbed the victim in the neck.  Aggravating factors were: use of a weapon, intent to wound, serious damage, youth of the victim, intoxication.  A starting point of seven years imprisonment was imposed.

[53]     My consideration of these cases satisfies me that  the conclusions I have reached regarding the choice of starting point and consideration of the impact of the aggravating and mitigating features of the offending are appropriate.

[54]     I now turn to consider if there are any aggravating features relating to the offender.   I consider there are aggravating features.   Bryce Kapea, you have an

extensive criminal history including seven convictions for violent offending over the last 10 years.  I consider that I must give an uplift of one year to recognise this.  That takes the term of imprisonment to eight and a half years imprisonment.

[55]     I now turn to consider the mitigating factors relating to Bryce Kapea.

[56]     There is the entry of a guilty plea to manslaughter once the Crown indicated it would accept a guilty plea to that offence and not proceed with the charge of murder.  This is not a case where Bryce Kapea formally offered to plead guilty to manslaughter and the Crown refused the offer.   Ultimately, the guilty plea was entered on 2 November 2010 in circumstances where the trial was to proceed on

8 November 2010.  I consider it can be looked at as a plea entered at a late stage. Mr Kapea, your counsel has explained the background and said the Crown would not initially accept  guilty pleas  to  manslaughter.    I understand  that  earlier  on  your counsel was responsibly making enquiries as to whether or not there was a proper defence to automatism.  This delayed the early entry of a guilty plea.  Nonetheless, I consider the process set out by Asher J in Selby and Fraser is applicable.   This process provides that if an offender is to receive a discount for an early plea, the offer to plead guilty should be formally put in writing and made available to the Crown.   I realise the difficulties, strategically and  tactically that may cause for defence counsel and the advice defence counsel give to their clients.  Nonetheless, it seems to me the process described in Selby and Fraser has become well established and I do not propose to depart from it.  However, I consider that some recognition should be given to the entry of a guilty plea since it has avoided the need for a criminal trial, which in turn has saved Mr Van Der Drift’s family the agony of sitting through  a  trial  and  it  has  saved  the  community  the  cost  of  a  trial.    It  also demonstrates some recognition on your part of your culpability for this offence.  I propose, therefore, to give a discount of five per cent for the guilty plea.

[57]     Bryce Kapea, you have also expressed remorse for what has occurred.   I accept that is a genuine expression of remorse.  Taking that into account, as well as the impact of the head injury you have suffered I propose to allow a 10 per cent discount.

[58]     I do not consider there are any other mitigating features in relation to you. That brings the total discount to 15 per cent which results in an end sentence of seven years and three months imprisonment.  This is the least restrictive sentence I can impose.

[59]     I now turn to Tauira Kapea

[60]     Your involvement in the death of Mr Van Der Drift is as a party.  The point I reached  with  the sentence for the principal  offender  before  I took  into  account factors relevant to Bryce Kapea was seven and a half years imprisonment.  I consider that there needs to be some recognition of the fact that you were involved as a party to the offending.  But, for the reasons I have already given, I do not consider that there is room for any significant differentiation between the accomplices to the offending and the principal offender.   I propose, therefore, to reduce the sentence point that I reached for Bryce Kapea (before taking account of factors relevant to him) from seven and a half years to one of six and a half years to reflect your role as a party.  I consider that a 12 month reduction is all that is warranted, given that your role as a party was as a participant who was there to support and encourage Bryce Kapea. Further, you have admitted to assaulting Mr Van Der Drift after he had fallen to the ground.  Whilst he was already mortally wounded then, you did not know that at the time and you were prepared to keep attacking him even though you witnessed him suffer a serious blow to the head.   I also accept that you had witnessed your brother’s  serious  head  injury  and  that  this  may  have  prompted  a  more  violent response from you than might otherwise have been the case.

[61]     I now turn to consider aggravating factors that relate to you.  You also have a criminal history but I note that you have only one previous conviction for serious violence.  I propose an uplift of three months to reflect your criminal history.  This brings the sentence up to six years and nine months imprisonment.

[62]     I  now  turn  to  consider  the  mitigating  factors.     There  is  your  youth, particularly at the time of the offending. There is the remorse you have expressed, which  the  probation  officer  considers,  given  your  reserved  personality,  may be deeper and more extensive than is apparent. There is also the guilty plea, which I

consider warrants some recognition.  You should receive the same recognition for a guilty plea as  was  given  to  your brother  Bryce Kapea.    Therefore  I propose a discount of five per cent for the guilty plea.   I propose to give you a 10 per cent discount for remorse and in addition I propose to give you five per cent discount to take into account your age.  This brings the total discounts to 20 per cent.  The result is an approximate end sentence of five years and five months imprisonment. However, having heard from your counsel today, I consider that further adjustment is required to take into account the mitigating factors  I have just outlined and, therefore, I propose a further reduction of two months, which brings the end sentence down to five years three months imprisonment.  That is the least restrictive sentence I can impose.

[63]     I now turn to Terence Beazley.  Mr Beazley, you are involved in the death of Mr Van Der Drift as a party to Bryce Kapea’s offending.  I propose to start with a term of six and a half years imprisonment as I did with Tauira Kapea.  I consider that your involvement as a party to the offending warrants the same starting point as I adopted for Tauira Kapea.

[64]     You do not have any relevant offences which would lead me to uplift that starting point.  From the material I have read I have seen you have had a difficult life and it is to your credit that, given that life, you have nonetheless managed to avoid getting into serious trouble before.

[65]     I now turn to consider the mitigating factors.  I propose to give you a five per cent discount for the guilty plea you entered for the same reasons as I have given the other offenders that discount.  I am also going to give you a discount of 10 per cent to reflect the remorse you have expressed.   That would have given you a total discount of 15 per cent bringing the sentence to five years and six months imprisonment.  However, given the expression of remorse you have made today, and the submissions I have heard from your counsel, I consider some further recognition of mitigating factors is required and I propose therefore to reduce the sentence to five years three months imprisonment.

Minimum non-parole period

[66]     I now turn to consider if I should impose a minimum period of imprisonment on any of the sentences.

[67]     The court may impose a minimum period of imprisonment if it is satisfied that the one-third default minimum which is usually served is insufficient to either

a)       hold the offender accountable for the harm done;

b)       denounce the conduct;

c)       deter the offender or others; or

d)       protect the community (s 86(2)).

[68]     Parole after one-third of the sentence is served is the statutory norm.   The circumstances of the offence must be more serious than those of offences of that kind normally encountered for a minimum period of imprisonment to be imposed.

[69]     The purpose of the imposition of minimum periods of imprisonment   has been stated in R v Brown [2002] 3 NZLR 670 at [35] as follows:

[Section] 86 provides the mechanism to constrain that outcome where the 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. It enables the courts to give a degree of reality to the sentence and the outcome.

[70]    The central consideration is the offender’s level of culpability, which is increased by unusual callousness, extreme violence, vulnerable or multiple victims and serious actual or intended consequences:   see R v Brown at [32], R v Nguyen [2009] NZCA 239; R v Gordon [2009] NZCA 145; R v Walsh (2005) 21 CRNZ 946. The sentencing considerations in ss 7, 8, and 9, including the circumstances of the offender, are relevant in fixing a minimum period of imprisonment (see R v Brown at [27]).

[71]     In  R  v  Gordon,  the  Court  of  Appeal  considered  that  the  length  of  the minimum period imposed will usually fall short of the maximum two-thirds of the finite sentence, although there is no presumption against the imposition of this maximum (R v Gordon at [48]). See also R v Wang [2009] NZCA 118 at [14].

[72]     I consider that the relevant factors to take into account are: denunciation, deterrence, and protection of the community.   Regarding denunciation, I consider that the aggravating factors of the offence are properly reflected in the choice of starting point taken from the Taueki tariff bands.   Those bands are calibrated to reflect factors such as the level of callousness and the intention to cause serious harm which  are  also  are  relevant  to  denunciation  when  it  comes  to  considering  the question of a minimum period of imprisonment.

[73]     Regarding  deterrence,  I  consider  that  the  previous  convictions  of  Bryce Kapea are relevant, as his recidivist tendencies demonstrate a heightened need for deterrence.  This factor is heightened to the point of warranting the imposition of a minimum period of imprisonment.

[74]     Regarding protection of the community, the previous convictions of Bryce Kapea are relevant to the protection of the community as well as deterrence. This demonstrates the overlapping considerations of s 86, highlighting the contextual nature of the overall enquiry.

[75]     I consider, therefore, that in regard to Bryce Kapea a minimum period of imprisonment is warranted.   The period I impose should be the least restrictive. I consider the least proper minimum period I can impose here is three years seven months imprisonment.

[76]     Regarding Tauira Kapea, I consider that your role as an accomplice, your age and the fact your other convictions were entered in the Youth Court count against the imposition of a minimum term of imprisonment. I consider that the need for denunciation of your conduct, deterrence and protection of the public is achieved through  the  sentence  I  have  already  imposed.    The  application  of  the  Taueki principles has led me to an end sentence which I consider properly reflects the

seriousness of your level of offending. For someone so young the sentence I have arrived at will be sufficient punishment for the offending.

[77]     Regarding Terence Beazley, I consider that your role as an accomplice and the absence of any relevant criminal history to justify an uplift in your sentence point to there being no need to impose a minimum term of imprisonment.  Your criminal history shows that you are not a criminal recidivist, nor do you pose such a risk to the community that a minimum period of imprisonment is warranted.  The nature of your previous offending is less serious than the crime for which you are now being sentenced.   It is likely that you will mend your ways as a result of this offending.

[78]     The three of you now seem to have some insight into where your lifestyle and excessive consumption of alcohol have led you.   It appears to me that you have realised this has caused you to take the life of someone with whom, in the past, you had  socialised  including  drinking  alcohol  with  him.    What  happened  has  cost Mr Van Der Drift his life, cost his family much grief and sorrow, and cost you your liberty.   Hopefully,   you   will   take  the  time  while  serving  the  sentences   of imprisonment which I am to impose on you to reflect on the need for change and how to bring about that change.

[79]     As I am now to impose the sentences I have reached upon you I ask you to stand.

[80]     Bryce Kapea you are sentenced to 7 years and 3 months imprisonment with a minimum period of imprisonment of 3 years and 7 months imprisonment.

[81]     Tauira Kapea you are sentenced to 5 years and 3 months imprisonment. [82] Terence Beazley you are sentenced to 5 years and 3 months imprisonment. [83]          Stand down please.

Duffy J