R v King HC Blenheim CRI-2009-009-17816

[2011] NZHC 29

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2009-009-17816

THE QUEEN

v

KEVIN ROBERT KING

Trial:               22 November-2 December 2010 (Heard at Wellington)

Counsel:         Mr Webber and Ms O'Donoghue for the Crown

Mr Turner and Ms Miller for the Accused

Sentence:       9 February 2011

SENTENCING REMARKS OF MALLON J

[1]      Mr King, you appear for sentence having been convicted, following jury trial, of manslaughter.[1]   The nature of the manslaughter here, was the killing of a person by an  unlawful  act.   That  unlawful  act  was  an  assault  by  you  on  Mr  Mathew Heagney which caused his death.

Circumstances of offending

[1] Section 160(2)(a) of the Crimes Act 1961. 

[2]      At the time you were a part-owner of a bar in Blenheim.  You were working on the night of 22 August  2009.  Mr Heagney had come to the bar in the early hours of 23 August 2009 after a party which he had hosted at his house.  His girlfriend, amongst others, was already there.  He caught up with his girlfriend,  stayed for a

short while and then left to go home.  Having exited the bar he changed his mind

R v KING HC BLE CRI-2009-009-17816 [9 February 2011]

about going home, but by this time the doors were closed and the door staff were no longer allowing customers into the bar.  Mr Heagney managed to slip into the bar past the door staff and to head up to the upstairs bar.

[3]      A short time later he came back down the stairs so as to leave the Bar where he  was  approached  in  the  foyer  by  one  of  the  door  staff,  Mr  Wright-Munro. Mr Wright-Munro was annoyed that Mr Heagney had slipped past him to gain entry. He confronted Mr  Heagney, as he intended to tell him that he was trespassed from the bar.  This turned into a physical altercation between the two.   You were standing nearby on the inside of the downstairs bar where you could see the confrontation occurring.   Mr Wright-Munro was young and inexperienced and you decided you should intervene.

[4]      At this point Mr Wright-Munro’s back was to the wall and Mr Heagney was facing him.  You approached Mr Heagney from behind, putting your arm around his neck area pulling Mr Heagney away from Mr Wright-Munro.  As you did this, you landed with your back against the opposite wall or the stairs against that wall and hurt your back.   As this was happening Ms Zeudima, who was the other person employed to work on the doors with Mr Wright-Munro, arrived back in the foyer area, she having been to the bathroom.

[5]      From  this  point  the  evidence  of  the  witnesses  varied  as  to  whether Mr Heagney was or was not continuing to struggle and was or was not fighting back. The evidence was clear, however, that you, together with Mr Wright-Munro and Ms Zeudimia, lifted Mr Heagney off the ground to remove him from the premises.

[6]      It is unclear at what point Mr Wright-Munro let go of Mr Heagney, but as Mr Heagney was moved through the door Ms Zeudima was walking backwards through the door holding Mr Heagney’s legs and you were holding Mr Heagney at the other end. Ms Zeudima tripped and let go of Mr Heagney’s legs.  You also let go of Mr Heagney.  It is unclear whether you let go before or after Ms Zeudima lost her grip.

[7]      Mr Heagney landed on the footpath, on his back, with his feet towards the bar and his head towards the road.  The back of Mr Heagney’s head hit the back of the concrete.  A number of witnesses described hearing the crack as this occurred.  The resulting  injury  to  Mr  Heagney  from  his  head  hitting  the  concrete  caused Mr Heagney’s death.

[8]      The events from the time of the initial confrontation through to Mr Heagney’s fall to the ground happened very quickly.  There were a good number of people – mainly those standing outside the bar - who saw Mr Heagney being removed.  Some of them recalled being angry at the way that Mr Heagney had been removed from the Bar.

[9]      The Crown accepted that Mr Heagney was a trespasser and you were able to remove him from the bar.  Its case was that you had used excessive force in doing so. The Crown submitted to the jury that the arm around Mr Heagney’s neck was a headlock, a potentially dangerous hold which you had used on others on previous occasions, and which in this case reduced Mr Heagney’s consciousness and thereby rendered him unable to protect himself, and that you then deliberately threw or dropped Mr Heagney on the ground.   The defence submitted to the jury that you had not rendered Mr Heagney unconscious or semi-conscious with a headlock and that it was  reasonably  possible  that  you  had  accidentally  let  go  off  Mr  Heagney  as Ms Zeudima stumbled and let go of him.

[10]     The evidence was clear that you had initially restrained Mr Heagney with your arm around his neck, a hold you had used on other occasions.  After that you, with the help of your staff, had completely lifted him off the ground to take him out the doors.   In sentencing you today it is not necessary that I form any view on whether the headlock rendered Mr Heagney unconscious or semi-conscious.  I do not regard that as affecting your culpability.   The jury’s verdict means that they were sure that you had deliberately dropped or thrown Mr Heagney to the ground or that your hold around his neck had rendered him unable to protect himself when he was released to the ground or both of those things.

[11]     The jury’s verdict also means that it was sure that the defence of property justification did not apply because your actions caused bodily harm to Mr Heagney. The jury’s verdict also means that they were sure that you were not acting in self- defence or defence of  Mr Wright-Munro or, if you were, then  you did not use reasonable force in defending yourself or Mr Wright-Munro.   Accordingly, your actions in removing Mr Heagney from the Bar constituted an assault of a dangerous kind and that assault caused Mr Heagney’s death.

[12]     All  of that  is  perhaps  best  summarised  as the  use of excessive force  in ejecting a patron from the Bar.   It was the excessive force that made your actions unlawful.  Mr Heagney died as a result of that excessive force and was aged just 24 years at the time.

Personal circumstances

[13]     Turning to your personal circumstances.  You are 51 years of age.   You have no previous convictions.  Not surprisingly, given those facts, the pre-sentence report writer assesses your risk or re-offending as low.

[14]     You have family: a daughter; three grandchildren; your parents; and your two brothers.   You have their support.   I have read the letters from people who have known you for a long time and who speak of your good character and other qualities and your contributions in their lives.

[15]     You have essentially been in gainful employment since leaving school many years  ago.   After  the  events  in August  2009  there  was  some  animosity  in  the community towards you which led to you shifting out of Blenheim and selling your interest in the bar.  After some difficulties, you have since found new employment and there is a letter from your current employer which describes you as a valued staff member and which attests to your qualities as an employee.

[16]     The pre-sentence report describes you as sad about what has happened.  Your counsel refers to the impacts upon  you and the emotional difficulties  you have experienced as a result of what has happened and medication that you have been

prescribed for that.  He also refers to you having approached the police soon after the events with an offer to meet the family.   You also expressed to the pre-sentence report writer a willingness to enter the Restorative Justice Process.

[17]     The pre-sentence report writer records that you struggle to understand what you have been found guilty of.  That and your stated intention to appeal could be taken  as  a  lack  of  remorse  and  a  refusal  to  accept  responsibility for  what  has occurred.   But when read with other things – in particular that you did not do “anything to intentionally hurt” Mr Heagney and your stated sadness and the impacts on you as described by your counsel - I am not sure that is the case.   Manslaughter can be difficult to understand given that the person’s death is an unintended outcome and that, as you say, you did not intend to hurt Mr Heagney.

Victim impact

[18]     Which brings me to the impact of that unintended outcome.   Mr Patrick Heagney, the father of Mr Matthew Heagney, has spoken today.  I acknowledge his courage in coming to Court today and reading out, on behalf of the Heagney family, their victim impact statement.  I have read too Ms Arnold’s victim impact statement and thank her for putting into words the impact of Mr Heagney’s death on her. Nothing I say can do justice to any of you at your sadness at losing Matthew, who was clearly a lovely young man in the prime of his life, with so much more to give and to experience and enjoy had events been otherwise.   I do acknowledge the dignity with which the family and friends sat through the High Court trial, the severity of the loss and the devastating impact and lifetime effect it will have on the Heagney family and all those who loved him.

Starting point

[19]     Sentencing for manslaughter is difficult.   No sentence I impose can bring back Mr Heagney or make up for his death.  The sentence must hold you, Mr King, accountable for your actions, but reflecting that those actions did not involve you deliberately causing Mr Heagney’s death, and that a conviction for manslaughter in and of itself involves holding a person accountable to some extent.  I must take into

account the desirability of consistency with sentences in other similar cases and impose  the  least  restrictive  outcome  in  the  circumstances.     There  are  other sentencing purposes and principles that I must take into account which I am not going to go through in these remarks but which have been commented upon in the written submissions and this morning.

[20]     The  first  step  is  to  assess  an  appropriate  starting  point  in  light  of  the culpability of your offending. After that, the starting point is adjusted in light of any aggravating or mitigating factors personal to you.

[21]     The Crown submits that the appropriate starting point is in the range of three to four years imprisonment.  In submitting that, the Crown has referred to other cases where  a  death  has  been  caused  by  one  punch,  typically  by  intoxicated  young offenders involved in some sort of street fight.  Those have often had starting points in  that  range,[2]  though  on  occasion  in  light  of  the  varying  circumstances  lower

starting points have also been adopted.[3]     The Crown suggests that in some respects

the offending here was more culpable than in those sorts of cases.

[2] See for example: R v Efeso HC Auckland CRI-2008-092-7925, 24 October 2008; R v Paku HC Hamilton CRI-2005-019-6408, 7 September 2006; R v Finau HC Auckland CRI-2005-044-8378, 4 July 2006; R v Roker CA358/92, 18 February 1993; R v Tuiletufuga HC Auckland CRI-2005-092-013476, 17 February 2006; R v Bryenton HC Auckland CRI-2009-004-3080, 7 April 2009; R v Schimanski HC Hamilton CRI-2006-068-215, 12 December 2006; and R v Savage HC Wanganui T982142, 12 March 1999.

[3] See for example: R v Timu HC Auckland T031152, 2 September 2003;

[22]     Your counsel submits that it is open to the Court to adopt a starting point in the range of two to two and half years.  Your counsel has also referred to the “one punch” cases[4] (as they are often called), but, by way of further comparison has also

referred to manslaughter cases involving serious assault or the use of a weapon,[5]

manslaughter where the person was known to the offender,[6] manslaughter where the victim is a young child[7] and gross negligence cases.[8]   Your counsel submits that the

case here is  more akin  to  someone acting negligently in  the execution  of their employment because you could use force, but you went too far.

[4] As well as some of those cited above, defence counsel cited R v Iusitini CA 221/98, 25 August 1998 and R v Teina HC Napier T 1/2002, 13 June 2003. 

[5] R  v  Tuaimalo  HC  Auckland  CRI  2006-092-11901,  12  December  2007;  R  v  Orupe  HC Wellington CRI-2009-035-1365, 2 September 2003; and R v Fukushima HC Auckland CRI 2003-090-10566. 

[6] R v Rawiri HC Wellington CRI 2007-032-5294, 14 August 2009.

[7] R v Pene [2010] NZCA 387.

[8] R v Ramstead CA 428.96, 12 May 1997; and R v McWhannell HC Palmerston North CRI 2009-054-1094, 29 July 2010.

[23]     There are also examples of excessive self-defence manslaughter but they have involved the use of lethal weapons.[9]

[9] See for example R v Kane CA 154/98, 23 September 1998 and R v Dwight [1990] 1 NZLR 160.

[24]     I have found all these comparisons helpful in assessing where the culpability of this case sits.  I consider that the culpability is slightly lower here than in many of the “one punch” cases.  On the one hand you used a hold around Mr Heagney’s neck area  which  was  potentially dangerous  and  which  others  had  warned  you  about previously, and you lifted Mr Heagney off the ground to remove him and your actions caused him to land with impact upon the footpath.  This was excessive.  On the other hand  you were not a protagonist.   You were entitled to and probably obliged to assist your young and inexperienced doorman who had involved himself in a physical confrontation with a patron you did not know, and you were entitled to remove Mr Heagney from the premises.  Your intention was to remove him rather than to harm him.   The arm hold you used had not caused harm before.   Events unfolded very quickly.  Ms Zeudima, faced with what she saw, made the decision to lift Mr Heagney’s legs off the ground.   That was not on your instruction.   Your actions were more dangerous than violent.  Excessive self-defence is viewed by the

Courts as reducing the seriousness of violent offending[10] and that must also apply to

excessive defence of another and excessive defence of property in the case here.

[10] See R v Taueki [2005] 3 NZLR 372 (CA) at [32].

[25]     I consider that an appropriate starting point is between two and two and a half

years’ imprisonment.

Personal Aggravating and Mitigating Factors

[26]     There are no personal aggravating factors which require any increase to this starting  point.           There  is  however  the  mitigating  factor  of  your  previous  good

character.

[27]     You have reached the age of 51 years with an unblemished record and have been  a  contributing  member  to  this  community  through   your  family,   your employment and your friendship to others, such as those who have written in on your behalf.  Because of this I would reduce the starting point by something in the range of four to six months, which a comparison with some other cases indicates to me is

appropriate.[11]   That is a reasonably significant reduction and I do not think any other

mitigating factors warrant a further reduction from there.

Sentence

[11] See for example: R v Howe [1982] 1 NZLR 618 (CA) where a four months discount was given; R v Proude HC Auckland CRI-2008-092-001926, 25 May 2010 where a 15 month discount off a sentence of 13 years was given; R v Field HC Auckland CRI 2007-092-18132, 6 October 2009 where  a  discount  of  18  months  was  given  for  good  character  and  contributions  to  the community;  R  v  Emery  HC  Auckland  CRI-2008-092-001285, 13  February  2009  where  a discount of 15 to 21 months was given off a sentence of five and a half to six years; R v Paku where a discount of eight months was given for good character, remorse, youth and provocation; R v Mears HC Rotorua CRI 2010-069-2211, 2 February 2011 where a discount of 19 per cent was given for good character, remorse and an offer of reparation; and R v Sagatea HC Auckland CRI  2009-092-17953, 20  May 2010,  which  was  a  one  punch  manslaughter case  where  a discount of six months for good character was given.

[28]     So, were I sentencing you to imprisonment, it would be a sentence in the range of two years, or possibly a few months less than that.   An imprisonment sentence of two years or less puts you in the range where home detention is available for consideration. The Crown submits that imprisonment is the appropriate sentence. Your counsel submits that home detention is appropriate.

[29]     Despite the loss of a person’s life, it is not the case that all manslaughter cases require imprisonment.  In many cases that is the appropriate sentence.  But in other cases it is not.[12]    I have decided that the circumstances of the offending and your  personal  circumstances  are  such  that  home  detention  is  the  appropriate sentence.  You are not someone for whom prison is necessary as a deterrent.  The restriction on your liberty from home detention together with your manslaughter

conviction and the consequences of that for you are sufficient in terms of accountability,   promoting   responsibility   and   denunciation,   and   for   general deterrence.  It would permit you to continue working and thereby continue to be a

productive  member  of  society.    The  period  will  be  twelve  months.    Standard

conditions will apply.    Special conditions will be as per the pre-sentence report appendix.

[12] For examples see: R v Iusitini; R v Sagatea; R v McWhannell; and R v Rawiri.

[30]     Stand down.

Mallon J