R v Ko

[2024] NZHC 3311

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2022-019-004036

[2024] NZHC 3311

THE KING

v

CHITKO KO

Defendant

Hearing:	14 November 2024
Appearances:	J Hamilton for Crown T C Tran for Defendant
Sentencing:	14 November 2024

SENTENCING OF WHATA J

Solicitors/Counsel:

Hamilton Legal (Office of the Crown Solicitor), Hamilton T C Tran, Barrister, Hamilton

R v CHITKO KO [2024] NZHC 3311 [14 November 2024]

[1]                 Mr Chit ko Ko you have pleaded guilty to one charge of manslaughter.1 I will now sentence you.

[2]                 Before I do so I wish to acknowledge the family and friends of your victim, Mr Thompson.

[3]                 Ngā mihi nui ki a koutou, ka tino nui te aroha kia koutou, nga whanau pani o te tangata kua mate. Ahakoa, kāore au e whakaeaea o koutou mamae, kua rongo au i o koutou tangi. Nāreira tēnā koutou, tēnā koutou, tēnā koutou.

[4]                 I also wish to acknowledge that I have heard today from his daughter Mereana, his grandchild Hazel, his sisters Raewyn and Tanya, his brother Tongia, and his niece Lulu.2

[5]                 You have told me something of your and therefore his whakapapa, of Aorangi, Hautapu, Tautahi, and of Hinemanu and of the chief Te Whaaro. And I am grateful for that.

[6]                 You each speak of a very special koro, papa, and tuakana. A gentle giant who cared deeply for his family, and whose family cared deeply for him. A man of mana, mana whenua, mana reo, mana tangata and mana aotūroa.

[7]                 You have spoken of trauma caused at his loss, alongside several losses you suffered shortly before his passing. Some of you speak of trying to reach a place of forgiveness. But the wound is still too raw, and may never heal.

[8]                 I hope you understand that the sentence I impose is one that I am bound to impose by law, and I know nothing I say will bring you peace. But please know that both your loss and your words have been woven into the sentence I must now hand down.

[9]Returning then to you Mr Chit ko Ko, my sentencing will be in five parts:

1      Crimes Act 1961, s 171. Maximum penalty: life imprisonment.

2      In the oral sentencing I incorrectly referred to Lulu as the granddaughter.

(a)First, I will set out the facts of your offending.

(b)Second, I will set out your personal circumstances that are relevant to your sentence.

(c)Third, I will set out the framework for my sentence and apply it to you.

(d)Fourth, I will hand down my sentence.

Facts

[10]Mr Chit ko Ko you pleaded guilty to the following facts.

[11]             Mr  Chit  ko  Ko  your   home  was  situated   next  to  a  long  driveway.    Mr Thompson’s home was one of the properties accessed by that driveway. On the morning of 17 September 2022, you were seen outside your house acting aggressively, yelling, and swearing. Later that morning, three of Mr Thompson’s grandchildren were in a vehicle being reversed down the driveway. You threw the contents of a bottle at the car. The fluid splashed onto the driver’s hand through an open window. It smelt like urine. They initially drove away but soon returned, driving up over the curb and onto the grass verge just outside your property. As they did so you threw another bottle at the car. They drove off again. The driver then rang Mr Thompson and told him what had happened.

[12]             Mr Thompson got into his own vehicle, reversed down the driveway and stopped adjacent to your property. He got out of his vehicle, walked through a gap in the fence and approached you. You were still outside your house yelling at this time. As Mr Thompson approached you, you retreated into your house. Mr Thompson yelled at you and followed you inside. You were both heard yelling at each other.

[13]             While in the entrance of the  house  there  was  a  fight  between  you  and  Mr Thompson, during which Mr Thompson put you in a headlock and slapped you at least twice in the face with an open palm. You  then exchanged body punches and  Mr Thompson was observed holding your hands to stop you punching him. The fight then moved into the house. As the altercation continued, you retrieved a homemade

weapon, a combination of a slingshot and a knife. The blade measures at about 140 millimetres long and 50 millimetres wide.

[14]             At some point you both ended up on the floor of the kitchen/dining area.     Mr Thompson was on top  of you,  and  it  appears around this  time you  stabbed  Mr Thompson a total of four times to the right forearm, right thigh, left thigh and left leg. These injuries proved fatal.

[15]             You were later examined and found to have a loosened front tooth as a result of a punch during the fight. While in custody your behaviour was erratic, throwing urine at prison officers and requiring management in the Intensive Support Unit.  You also presented with delusions and erratic behaviour when assessed by a forensic psychiatrist in December 2022. You have been diagnosed with schizophrenia complicated by neuropsychiatric effects of HIV infection. It is agreed that your psychotic illness, involving persecutory thoughts and delusions, was active at the time of the offending.

Personal circumstances

[16]             Mr Chit ko Ko I now refer to your personal circumstances. Mr Chit ko Ko you are 50 years old. You were born in Burma, now known as Myanmar. You experienced childhood adversity, began using drugs recreationally at a young age and spent a significant period of your life in refugee camps. You have been infected with HIV for many years and suffered from pulmonary tuberculosis and hepatitis C while in a refugee camp. In 2011, you were granted entry into New Zealand under the refugee quota. This presented significant challenges for you, particularly given the different cultural context, language barriers, limited social support networks and difficulties accessing mental health care. You have found it very difficult to socially integrate, you have few friends, and this has exacerbated your mental health challenges.

[17]Turning to those challenges, Mr Lascelles observes:

(a)        Your delusions and disinhibition due to psychosis resulted in grossly impaired judgment and capacity to regulate your behaviour, contributing to the

acts of throwing the stored urine that brought the victim to your front door in an agitated and aggressive state.

(b)        You  were in a highly agitated and paranoid state at the point that     Mr Thompson entered the home and Mr Thompson’s actions would have confirmed your paranoid fears for your own safety.

(c)        You are unlikely to perceive the situation rationally in terms of appreciating reasons for Mr Thompson’s agitation. He says you would have failed to appreciate the wrongfulness of your prior actions in throwing the urine.

(d)        Your decision to stab the victim was clearly driven by your perception of being at risk of serious harm or death at the hands of the victim.

(e)        You had a weapon at close proximity and were primed to access it due to your history of persecutory delusions and paranoid fears.

[12]   Dr Dean says that you were assessed as having both grandiose and persecutory delusional beliefs. These beliefs have persisted despite treatment, although they attenuated in intensity when you were on psychiatric medication. Given the persistence and length of your symptoms despite abstinence from illicit substances, Dr Dean says you are most appropriately diagnosed with schizophrenia that is complicated by the neuro-psychiatric effects of HIV infection.

[13]   Dr Dean also says that your judgment at the time of offending was markedly impaired. He says you were preoccupied by delusional beliefs that a variety of agencies and individuals had been involved in defrauding you in a large lottery win. He also says that the intensity of your delusions and your language difficulties contributed to you making poor choices and impaired your ability to make reasoned choices. He says you would not have been in a conflict with your neighbour but for your delusional state. He also notes that you are respectful and appropriate when your condition is well managed. However, when unwell you become irritable, unable to listen to reason and act impulsively.

[18]               Finally, I note for completeness that you have convictions for assaulting your elderly father that resulted in a short term of imprisonment.

Sentencing framework

[19]             I am now going to describe the legal frame, principles and purposes that must guide my assessment of your sentence.

[20]             I must take into account the purposes and principles of sentencing outlined in ss 7 and 8 of the Sentencing Act 2002. There is a need to denounce the offending and to hold you accountable for the harm that you have caused. The sentence I will impose is intended to promote a sense of responsibility in you for that harm. There must be deterrence, both against future offending by you and against others who might act similarly. I must consider the protection of the public, together with your rehabilitation.

[21]             The sentence I impose on you must be consistent in kind and in length with those imposed on others who have offended in a similar way. I must consider the gravity of your offending and your culpability. I must also take into account any circumstances that might make an otherwise appropriate sentence disproportionately severe.

[22]There are two stages to the sentencing process:

(a)First, I must determine the most appropriate starting point for a sentence of imprisonment — this is based on the facts of your offending.

(b)Second, I must adjust that starting point for any personal factors that mean a higher or lower sentence is appropriate.

Starting point

[23]             So, Mr Chit ko Ko I turn now to set the starting point. It must be similar to the starting points adopted for offending similar to yours.

[24]             Counsel for the Crown, Ms Hamilton, and your counsel, Mr Tran and Ms Gilbert, have referred me to a number of cases they say are similar. The starting points in those cases range from four and a half years to eight and a half years.3 Of these, I consider the case of Champion to be most helpful. In that case, like the present, the victim went to Mr  Champion’s  home  to  confront  him  about  a  prior  incident.  Mr Champion went inside and grabbed a knife. The victim and his son, who was also present, told him to put down the knife. Mr Champion backed away waving the knife in front of himself.   The victim pursued him, grabbed a broom and swung it at     Mr Champion. The victim’s  son  also  threw  a  terracotta  pot  at  Mr  Champion. Mr Champion retreated further into the property  until  he  ended  up  in  a  corner. He swung the knife wildly at the victim, one of the lunges struck him in the stomach and killed him. The starting point in that case was five and a half years.

[25]Like the present case, the following features of the offending were present:

(a)serious violence;

(b)presentation and then use of a lethal weapon; and

(c)elements of (mutual) provocation and self-defence.

[26]             I consider however that the number of stab wounds makes your offending worse, as does the fact that Mr Thompson, while a much larger man, was not armed at any point during the altercation. While you did not strike a vital organ, there was always a risk of lethal wounding with so many stabbing motions. In addition, the use of a homemade weapon suggests a level of pre-planning or preparedness for confrontation (though as I will later explain this was tied to your delusional paranoia). This emphasises the need for protection of the public. These factors support a higher starting point of six and a half years.4

3      Wang v R [2014] NZCA 251; R v Wirihana [2022] NZHC 863; R v Smith [2014] NZHC 2091; R v Capper [2022] NZHC 3437; Hohua v R [2022] NZCA 550; R v Pene [2021] NZHC 3327; R v Ecclestone [2024] NZHC 1400; R v Chen [2023] NZHC 1947; and Champion v R [2024] NZCA 65.

4      For a similar starting point see R v Ecclestone, above n 3.

Personal factors

[27]             Mr Chit ko Ko I now turn to my assessment of your personal factors that might mean a higher or lower starting point is justified.

[28]             First, it is clear, on the expert evidence available to me, that but for your mental health frailties you would not have stabbed and killed Mr Thompson. In short you were suffering under an intense episode of paranoid delusion. As the Court of Appeal has made clear, this must attract a discount to reflect your lower moral culpability.5    I am satisfied that a discount of 20 per cent is appropriate to reflect this.

[29]             Second, it is equally clear that you had a challenging upbringing and settling in New Zealand has been most difficult for you, no doubt exacerbated by your mental health struggles. This warrants a further discount of 10 per cent.

[30]             Third, I must acknowledge your prior violent offending toward your vulnerable father. This suggests that you have a propensity for violence that is a concern and this should be reflected in your sentence even though your mental health challenges undoubtedly are causally connected to this. A modest uplift of five per cent for prior offending is therefore appropriate.

[31]             Third, I consider that your guilty plea was reasonably made after you had completed the relevant psychiatric assessments, and your counsel was in a proper position to advise you as to how to proceed. But I still do not think it was made at the first opportunity (with fitness to plead confirmed in March 2023 and no offer to plea until after the Crown suggested manslaughter in July 2024). In those circumstances, a discount of 15 per cent for guilty pleas is appropriate.

[32]This results in an end sentence of imprisonment of three years 11 months.

MPI

[33]             The final issue to resolve is whether you must serve a minimum period of imprisonment. In forming a view about this I must consider the following matters:

5      See E(ca689/2010) v R [2011] NZCA 13 at [68]–[70].

accountability for harm done; denouncing your conduct; deterring you and others; and protecting the community. Given I have found that your mental health frailties were clearly causative of the offending, accountability, denunciation and deterrence have less relevance. As the Court of Appeal said in Hohua:6

In cases where culpability is reduced as a result of a mental health condition it may be that the purpose of denunciation and holding the offender accountable will not be achieved through an MPI. However, community protection was a legitimate concern that warranted an MPI…

[34]             Accordingly, protecting the community remains squarely in focus. As noted by Dr Dean when you are well, you behave appropriately. But when you are unwell, you do not. Having said that, we can assume the Parole Board will carefully review your condition when you come up for parole. On that basis I am satisfied that an MPI is not necessary.

[35]             Mr Chit ko Ko please stand. On the charge of manslaughter, I sentence you to three years and 11 months imprisonment. Please stand down.

Whata J

6      Hohua v R, above n 3, at [55].