R v Kengike

[2008] NZCA 32

IN THE COURT OF APPEAL OF NEW ZEALAND

CA437/07
[2008] NZCA 32

THE QUEEN

v

JOSEPH KENGIKE

Hearing:18 February 2008

Court:Robertson, Randerson and Ronald Young JJ

Counsel:S D Cassidy for Appellant

J M Jelas for Crown

Judgment:27 February 2008 at 2.30 pm

JUDGMENT OF THE COURT

A        The appeal against sentence is allowed.

BThe sentence of ten years’ imprisonment with a minimum period of imprisonment of five years is quashed.

CA sentence of eight years’ imprisonment with a minimum period of imprisonment of four years is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

[1]       On 3 May 2007, the appellant was convicted of manslaughter after trial by jury in the High Court for murder.  The trial judge was Priestley J who sentenced the appellant on 6 July 2007 to ten years’ imprisonment with a minimum period of five years’ imprisonment.

[2]       This appeal against sentence is advanced on the basis that the starting point adopted by the sentencing Judge was too high.

Background

[3]       At the time of sentencing, the appellant was 29 years of age.  The victim was his partner in a relationship of at least ten years standing which had resulted in the birth of six children.  The youngest children were twins aged about six months at the time of the offending.  On 14 November 2005, the appellant appeared in the District Court on charges of assault and breach of a protection order in relation to the victim.  He was bailed on strict conditions including that he was not to drink alcohol and not to make contact directly or indirectly with the victim. 

[4]       Just three days later, on 17 November 2005, the victim, her brother and the appellant began drinking early in the day.  The Judge found there was a high level of alcohol consumption and that, during the evening at a tavern in Tokoroa, the appellant was in a “bad and possessive mood”.  He found that the victim was also behaving aggressively on that evening including hitting the appellant on one occasion and kicking his motor vehicle.  At one stage of the evening, the appellant was seen to have his hands around the victim’s neck and told her at one point “yours is coming”.

[5]       In circumstances that are not entirely clear, the victim returned to her home in the early hours of 18 November and was followed by the appellant.  Neighbours heard voices and banging noises.  Some 30 hours later, on 19 November, the victim was discovered, lying in her bed in a deeply unconscious state.  In the meantime, the appellant had returned to Auckland on the morning of the day the injuries were inflicted.  He did not seek assistance for the victim but left after telling an acquaintance that the victim and her children were well.

[6]       When the victim was discovered, she was found to have bruising on her face, lips, jaw, neck and head.  Her deeply unconscious state was the result of two subdural haemorrhages inflicted by an impact to her head.  Her injuries also included a boot print on her abdomen, a fractured eye socket and soft tissue injuries around her neck.  She died in Auckland Hospital on 22 November. 

[7]       When spoken to by the police, the appellant accepted responsibility for the victim’s death.  He stated he had returned home around 3 am and had become enraged with her.  He recalled pushing her around the house and ripping her clothing.  He also admitted cleaning the house later in the morning before leaving.

High Court sentencing

[8]       The Judge noted that the post-mortem evidence suggested there had been a prior subdural haemorrhage, of some weeks duration, which had healed.  There was no evidence to link the appellant with the prior injury but further trauma in the site of the earlier haemorrhage made bleeding more likely.  The Judge did not accept that the appellant’s case was one where a single blow or shove had led to an unexpected fatal consequence.  Rather, he found that the victim had been subjected to a sustained assault which had also involved the appellant kicking the victim.

[9]       The Judge concluded that the death resulted from the appellant’s uncontrolled and drunken anger.  He accepted, however, that the appellant lacked murderous intent and said specifically that he did not intend to treat the appellant as “a murderer who was lucky”.

[10]     The appellant had a lengthy list of previous convictions including a number for violence.  In 2006, he was convicted and sentenced to one months’ imprisonment on charges of breaching a protection order and male assaults female.  In 2002 he received a sentence of 12 months on another charge of male assaults female and, in 2000, he was sentenced to a suspended term of 18 months’ imprisonment on a charge of injuring with intent to injure.   Finally, there were two further convictions on charges of male assaults female on separate occasions in 1995.

[11]     The Judge considered the aggravating features to be the prior convictions for violence; the high degree of sustained violence involved in the assault which resulted in the victim’s death; the victim’s physical vulnerability in terms of her size relative to that of the appellant; the fact that, only three days before the homicide, the appellant had appeared on the two charges already mentioned and had been bailed on strict conditions which had been ignored; and his failure to render assistance to the victim despite the serious nature of the beating he had administered to her.

[12]     The Judge then turned his attention to the issue of domestic violence stating:

[24]     The New Zealand Police domestic violence website contains information that one woman in New Zealand is killed by her partner or ex-partner every five weeks.  The New Zealand fifth periodic report to the United Nations Committee CEDAW in 2002 reported that 50% of all homicides of New Zealand women are committed by the woman’s partner or ex-partner.

[25]     Those are grim figures which in my view justify a significant loading of your sentence to reflect the purposes of denunciation and deterrence.

[26]     Manslaughter can arise in an infinite variety of factual scenarios.  So too can a homicide in a domestic context when one partner kills the other.  Was the violence isolated?  No in your case.  Was the violence brief or sustained?  Sustained in your case on the pathological evidence.  Was a weapon used?  No for you.  Was the victim a protected person?  She was.  Those and other permutations make tariffs, as the Court of Appeal has recognised across the manslaughter board, and indeed “sentencing guidelines” an arid and largely futile exercise.

[27]     Given the unacceptable levels of domestic violence towards women to which I have referred, I consider a case such as this has a strong public interest element.  Women should be protected not abused.  Those men who kill their female partners must expect and should receive condign punishment from courts.  The seriousness and prevalence of this type of offending requires such a judicial response.

[13]     After referring to various decisions of this Court, the Judge returned to this subject:

[32]     In terms of R v Taueki [2005] 3 NZLR 372 I consider a start point which adequately reflects the aggravating features of your offending, being a sustained beating of your former partner, the use of your feet, and your violence on earlier occasions during the day, including your threat that your victim “had it coming”, justify a start point of ten years. I believe this start point is justified to reflect the seriousness of homicides in a domestic violence context and the denunciation and deterrence aspects to which I have referred. I believe the problem of domestic violence in New Zealand leading to the death of a vulnerable or protected partner now requires a stern start point. It would be surprising if the Court of Appeal disagreed.

[33]     A further uplift is required to reflect aggravating features of you, the offender.  These include your previous history of violence and convictions, the fact that this offence took place whilst on bail and in breach of bail conditions, and your failure to do anything to assist your victim when you could not rouse her.  Instead you chose to leave town.  Those aggravating features, the last being the least important, I consider, justify an uplift of two and a half years which would bring me to a 12 ½ year sentence.

[14]     In relation to mitigating factors, the Judge took into account that the appellant had indicated at an early stage that he would plead guilty to manslaughter, his expressions of remorse and the need to avoid a sentence which could preclude the appellant’s rehabilitation.  The Judge applied a discount of 20 per cent for these factors which he described as “somewhat generous”.  The application of the discount resulted in the final sentence imposed of ten years.

[15]     In summary, the Judge adopted a starting point of ten years’ imprisonment, applied an uplift factor of two and a half years for the aggravating circumstances relating to the offender and then deducted two and a half years for mitigating factors to return to the initial starting point of ten years.  He then imposed the minimum period of imprisonment of five years.

Submissions

[16]     Mr Cassidy for the appellant did not challenge in principle the imposition of a minimum period of imprisonment but he submitted that the sentence of ten years’ imprisonment was manifestly excessive and that a final sentence of seven or eight years’ imprisonment would have been appropriate.  By reference to a decision of this Court in R v Ruru, CA371/01 12 February 2002, R v Maru CA449/00 26 July 2001, and R v Hetherington CA28/02 20 June 2002, he submitted that the starting point of ten years was too high.  He did not challenge the deduction of 20 per cent for mitigating features.

[17]     Mr Cassidy submitted that the case had strong similarities to the facts in Ruru where this Court adopted a starting point of eight years upon conviction of the appellant for manslaughter.  This Court described the starting point in Ruru as stern.  A final sentence of seven years was imposed after a reduction of one year for a guilty plea entered soon after commencement of the trial.

[18]     Ms Jelas for the Crown submitted that the violence involved in the present case was greater than that in Ruru and Hetherington in both the degree of force used and the type of blows struck.  She emphasised the appellant’s previous convictions for violence which, she submitted, justified a higher starting point than those adopted in Ruru and Hetherington.

Discussion

[19]     There is little to distinguish the present case from the decisions of this Court in Ruru and Hetherington.  Both those cases involved serious violence in domestic relationships resulting in the death of the female partner of the offenders.  In Ruru, death had resulted from a violent and sustained assault on the victim including a series of slaps and punches.  Death resulted from subdural bleeding.  There was an accepted history of violence within the relationship contributed to by heavy drinking on the part of both the offender and victim.

[20]     In Ruru, this Court accepted that the penalty imposed had to include a deterrent aspect and reflect the degree of seriousness of the crime and that the sentence should reflect the Court’s denunciation for what was described as “a prevalent pattern of domestic violence, associated with excessive alcohol consumption …”.  The conclusion of this Court was:

In the present case we have no doubt that death was caused by a blow in the course of a sustained severe assault on the deceased having at least two phases during the evening concerned.  Overall we regard an eight year starting point as stern but, having regard to the need for a deterrent sentence, within the range that was open to the Judge.  We would add that we do not regard eight years as at the top of the range of sentences for manslaughter involving domestic violence in the context of repetitive conduct. 

[21]     As earlier indicated, a final sentence of seven years’ imprisonment was upheld, there being a deduction of one year for a guilty plea.

[22]     Approximately four months after the decision of this Court in Ruru, the decision in Hetherington was issued.  A sentence of nine years was upheld following the conviction of the appellant after trial on a charge of manslaughter arising from the death of his de facto partner.  The deceased died as a result of a number of blows to her head after she had returned home intoxicated from a party.  The Court accepted there was a sustained assault with a number of blows.  This Court considered that the level of violence involved was marginally less than in Ruru but took into account as a serious aggravating factor the appellant’s conviction for a similar serious assault on this partner for which he had been sentenced to nine months’ imprisonment.  The appellant had been released from prison on parole only 19 days before the fatal assault occurred.  This Court considered that the violence involved a high degree of culpability and that having regard to the previous history of domestic violence, a starting point of nine years’ imprisonment was warranted.  There were no mitigating factors warranting any deduction.

Conclusion

[23]     We are not unsympathetic to the Judge’s view that domestic violence is a serious problem in New Zealand society and that a firm response is required from the Courts in cases such as the present where a sustained violent attack results in loss of life.  The sentence must take into account deterrence and denunciation of the offender’s conduct.  The protection of the community is also important.  These factors, amongst others, are emphasised in the purposes of sentencing defined in s 7 of the Sentencing Act 2002. 

[24]     But consistency of sentencing for similar offending is also an important principle.  Section 8(e) of the Sentencing Act provides that the Court 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 …

[25]     While there is no tariff for manslaughter cases and the ability to mould a sentence to the particular circumstances of the case should not be unnecessarily constrained, no justification was demonstrated in the present case for any substantial departure from the sentencing levels upheld in Ruru and Hetherington.

[26]     It is useful to compare the composition of the sentences in Ruru and Hetherington with the approach adopted by the Judge in the present case.  In Ruru, the sentencing Judge adopted a starting point, including aggravating factors relating both to the offence and the offender, of eight years.  In Hetherington, the comparable level was nine years.  In the present case, the sentencing Judge adopted a starting point, including aggravating factors related to the offence and the offender, of twelve and a half years.  This represented an uplift of between 38 and 56 per cent on the starting points in relatively recent decisions of this Court which are, in our view, difficult to distinguish in terms of overall seriousness. 

[27]     We are satisfied that an uplift of this magnitude was not justified and that the sentence imposed is manifestly excessive.  Making due allowance for the Judge’s assessment of the evidence he heard, the appropriate starting point including aggravating factors relating to the offence and the offender was ten years’ imprisonment from which the 20 per cent (two years) reduction for mitigating factors is not challenged.  Chief amongst these was the indication at an early stage of a willingness to plead guilty to manslaughter.  This results in a final sentence of eight years’ imprisonment.  There should be a corresponding reduction of the minimum period of imprisonment to four years, adopting the same proportion as found by the Judge to be appropriate.

[28]     We were informed from the Bar that the statistics cited by the Judge were obtained on his own initiative.  We note they do not contain any comparative data which might have indicated whether there had been a deteriorating trend in offending of this type and that they were not subjected to any informed analysis by the Crown or defence.  While not seeking to inappropriately restrain the exercise of judicial discretion, Judges at first instance should be cautious before promoting sentencing levels which are substantially at variance with sentencing precedents established at appellate level in comparable cases.  That is particularly the case where the Crown, as it is entitled to do, has not sought to promote a significant increase in sentencing levels for the crime at issue.

[29]     We do not diminish in any way the seriousness of the consequences of domestic violence cases which properly give rise to much public concern.  The Court’s response must be tailored to the facts of each case in a way which meets the purposes and principles of sentencing laid down by Parliament in the Sentencing Act but the importance of consistency in like cases must not be lost sight of.

Result

[30]     The sentence of ten years’ imprisonment with a minimum period of imprisonment of five years is quashed.  A sentence of eight years’ imprisonment with a minimum period of imprisonment of four years is substituted.

Solicitors:
Crown Law Office, Wellington