R v Langley
[2016] NZHC 2791
•18 November 2016
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2014-019-000611 [2016] NZHC 2791
THE QUEEN
v
PAORA CRAIG LANGLEY
Hearing: 18 November 2016 Appearances:
D McWilliam for the Crown
P J Morgan QC and M Jepson for the DefendantSentence:
18 November 2016
SENTENCING NOTES OF HINTON J
Counsel/Solicitors: Almao Douch, Hamilton Philip Morgan QC, Hamilton
R v PAORA CRAIG LANGLEY [2016] NZHC 2791 [18 November 2016]
[1] Paora Langley, you appear for sentencing after having been found guilty of manslaughter at a re-trial for murder.
[2] The victim, Mr Tiatia, was your partner’s step-father.
Facts
[3] You were aged 19. You and your partner had just welcomed the birth of your first child. Together, you were living with your mother-in-law and your partner’s three siblings. The two younger siblings were the biological children of Mr Tiatia.
[4] You saw yourself as the provider and protector of your family, and your
partner’s family.
[5] You were always respectful to Mr Tiatia. He had been violent towards your mother-in-law. You and your partner helped him to see the younger children, which led to Mr Tiatia being permitted by your mother-in-law to come to the house, though that was in breach of a Court order.
[6] Mr Tiatia largely ignored you. He called you a “nark” and a “sissy” and talked down to you. You were still upset about him taking birthday money which you had given to your partner on her 16th birthday, two years prior.
[7] On the day of the offending, 4 February 2014, you had been talking about adopting the neighbour’s dog and Mr Tiatia scoffed at you for that. The issue of the birthday money had come up again. You were riled about this and angry that your partner said nothing to support you.
[8] You went to the bedroom upstairs and told your partner you were going to stab Mr Tiatia. She did not believe you. You then got your diving knife and went downstairs, calling out Mr Tiatia’s first name twice. He was still in the lounge, where you had been talking just beforehand.
[9] You stabbed him twice in the chest area. Mr Tiatia’s step-daughter, who was aged 12 at the time, returned from the bathroom to see him holding onto the couch
with one hand and trying to cover a wound with the other. He then fell to the floor, landing on top of a vacuum cleaner.
[10] One of the wounds was 9-11 centimetres deep. Mr Tiatia bled profusely, and died at the scene.
[11] You fled the scene, going first to the house where your partner’s mother was visiting her sister, and telling her what had happened. You rang your partner and had a conversation with her, which was recorded, as the Police had her phone under surveillance. You surrendered to the Police the following day.
Pre-sentence report
[12] Before me is a pre-sentence report, which states you are genuinely remorseful. You describe a sense of disbelief at your own violent behaviour, saying you grabbed the knife to appear “more menacing” so Mr Tiatia would stop taunting you.
[13] The probation officer spoke to your partner and mother-in-law. Despite their own loss, they continue to support you. They say you have a big heart. Your mother-in-law sees you as her own son, saying you have done so much for her and her family. It is clear, Mr Langley, that you took pride in caring for your extended family.
[14] Your partner and child, who is now almost three years’ old, now live with your parents in Auckland. They visit you regularly.
[15] The probation officer spoke to the Department of Corrections in respect of your time in prison. You have been described as having “an excellent attitude”, with “nil incidents and nil negative file notes”. You told the probation officer that you were upset to learn from other inmates that you have been reported by the media as a gang member. You adamantly deny any gang association, saying your father, a retired gang member, sternly warned against your becoming part of any gang. There was no evidence that you were a gang member, during the trial.
[16] Overall, the probation officer assesses you at a low risk of re-offending.
Victim impact statements
[17] I also have before me victim impact statements from Mr Tiatia’s parents, siblings, and ex-partner, and we have heard some of those statements read out.
[18] They are seriously grieving. Mr Tiatia’s father says he is not the same person, and life has been very difficult for him. He could not attend the second trial because it would have been too difficult for him to hear the evidence for the second time. But he says he has forgiven you. Hating you will not benefit him, or bring his son back, he says.
[19] Mr Tiatia’s siblings describe the grief, stress and illness they have had to endure since losing their brother; how they have put their lives on-hold to attend both trials. The family has fallen apart, as a consequence. The retrial has brought “new stress and anger”, with the introduction of new witness statements. Mr Tiatia’s brother says, despite all of this, he hopes in the future that both families will be able to find some peace and move on.
[20] Other victims describe how they have suffered.
[21] They are all grieving differently. Some have forgiven you, and some won’t. But, as one victim says, “Life for us will never be the same”.
Principles and purposes of sentencing
[22] In sentencing you today, I have regard to the need to hold you accountable for the harm you have done to the community by your offending; to promote in you a sense of responsibility for, and acknowledgement of, that harm; to have regard to the interests of the victims; to denounce and deter your conduct; to protect the community; and to assist in your rehabilitation.
[23] I am required to take into account, and I do take into account, the gravity of the offending; the seriousness of the type of offence; consistency with comparable
cases and the need to impose the least restrictive outcome appropriate in the circumstances.
Sentencing approach
[24] I will begin by setting a starting point which you have heard counsel talking about, by reference to the nature and extent of your offending. You will hear me speak of a decision called Taueki v R, and other decisions which are comparatively relevant.1
[25] After setting the starting point, I will then make an adjustment to reflect the aggravating and mitigating factors that are personal to you.
[26] Then (at the Crown’s request), I will consider whether to impose a minimum period of imprisonment.
Setting the starting point
[27] Mr Langley, as you have heard, the Crown says I should adopt a starting point of 10 years’ imprisonment. They say your offending falls within band three of Taueki, pointing to extreme violence; premeditation; serious injury; use of a weapon and vulnerability of the victim. Band three carries a sentencing range of 9 to
14 years’ imprisonment.
[28] There is no dispute that use of a weapon and serious injury are aggravating features in this case.
[29] I agree with your counsel that there was no premeditation. There is nothing to suggest this was something you had planned. Although the knife you used was taken from the bedroom, it was a relatively short distance away from the living room, which is where you returned in under a minute. I do not think you could say
there was any separation in space or time.
1 Taueki v R [2005] 3 NZLR 372 (CA).
[30] I agree also that the violence was not “extreme” in the sense it is used in the cases. It was serious violence, but the seriousness of your actions in stabbing Mr Tiatia twice in the chest area, a vulnerable part of the body, using a knife that went 9-11 centimetres deep, is sufficiently captured by the two features I have already mentioned – that is, “use of a weapon” and “serious injury”.
[31] Mr Tiatia was unarmed, but he was not vulnerable in the sense that usually applies on sentencing, that is, there was no disparity in size or strength. The fact he was unarmed and you were armed is already captured in the aggravating feature I have taken into account (use of a weapon).
[32] Your counsel is not suggesting there was any provocation or self-defence that would justify a lower starting point, and I agree.
[33] Overall, I consider your offending falls by analogy within band two of
Taueki, where a starting point of five to nine years is appropriate.
[34] I have considered a number of manslaughter cases to make sure that the starting point I adopt today is in line with others by comparison.
[35] I consider your offending is less serious than cases cited by the Crown like R v Raivaru,2 where the defendant had called out “Die, Die, Die!” during the attack or R v Ames, where the attack was described as “cowardly” in circumstances where the defendant stabbed his victim out of jealousy and calmly cleaned his knife before going to sleep.3 Starting points of seven and eight years’ imprisonment were adopted respectively in those cases. The Crown also cites cases where there was “gratuitous violence”, also capturing a starting point of seven to eight years.4 Your offending was not gratuitous. Although Mr Tiatia did not provoke you, his treatment of you leading up to the offending, while in no way justifying what you did, did have some
small part to play.
2 R v Raivaru HC Rotorua CRI-2004-077-1667, 5 August 2005.
3 R v Ames HC Rotorua CRI-2008-263-000019, 30 October 2009.
4 For example, R v Tai [2010] NZCA 598.
[36] I also consider R v Olley and Te Pana v R to be cases involving a higher level of culpability.5 There were more aggravating features involved in those cases, than in this one.
[37] I have considered the cases cited by your counsel. I consider that R v Hepi is most relevant.6 There was a gang-related disturbance in the defendant’s residential street. Although the defendant’s house was not targeted, the defendant went inside the house and armed himself with a large knife, 15-25 centimetres in length, and was seen brandishing the knife as he walked around, meaning it to be intimidating so people would stay away from his house. The defendant confronted the victim, and was “tensed up”. The victim was not carrying anything. There was an exchange of punches, following which the defendant fatally stabbed the victim using his knife.
The defendant fled the scene and then voluntarily handed himself in the next day.
[38] Andrews J accepted that the defendant was acting in the heat of the moment, even though he brought the knife with him from his house. There were two main factors which she said pointed to the gravity of the offence and his culpability: that the defendant was “ready for a fight”, and that the victim was unarmed. She adopted a starting point of six years’ imprisonment in that case.
[39] All in all, I have decided that a starting point of seven years’ imprisonment is
appropriate in this case.
Adjusting the starting point
[40] I now turn to consider the aggravating and mitigating features that are personal to you.
[41] You have four previous convictions, all in 2013. They were burglary;
intentional damage; and two counts of theft.
[42] The Crown submitted that I should uplift the starting point by six months to account for your previous convictions and the fact that this offending occurred while
5 R v Olley [2012] NZHC 40; Te Pana v R [2014] NZCA 55; and R v Te Pana [2013] NZHC 1592.
6 R v Hepi [2015] NZHC 1449.
on bail, although that has been modified by the Crown accepting today, that there was no evidence that you were on bail.
[43] In my view, your previous convictions do not justify an uplift. Although they are fairly serious, they are non-violent and fall into an altogether different category to the crime for which you are being sentenced today.
[44] I note that you have spent time in remand and on EM bail after being charged for this offending. You were in custody from 5 February 2014 until 28 March 2014, when you were granted EM bail, right through to your first trial in early November
2014. You were sentenced to life imprisonment on 16 December 2014, and on
15 March 2016, your appeal against conviction was successful at the Court of
Appeal, where your conviction was quashed and a retrial ordered.7 On 17 May
2016, you were again put on EM bail. After your second breach of the EM bail conditions, you were remanded in custody on 26 July 2016. That is where you remain, since you were convicted of manslaughter at your re-trial on 5 September
2016.
[45] Your counsel explained the circumstances of your breaches of EM bail. The first occurred when you were being taken by your father to an approved WINZ appointment, but your father had deviated from the most direct line of travel to visit a friend. The deviation was about 20 minutes. That resulted in your being arrested and put in 24 hours’ custody. The second breach followed an argument you had with your partner, where you cut off the EM bracelet and “sulked”, as your counsel puts it, in the garden of your EM bail address while waiting for the Police to arrive for your arrest. I accept you did not have an intention to abscond, as the Crown suggested in their written submissions.
[46] I agree with your counsel that the consequences of these breaches have already been accounted for, and it is not my job to take them into account today.
[47] The Crown says I should not give you any discount for time spent on
EM bail, saying your experience was less restrictive or serious than generally
7 Langley v R [2016] NZCA 71.
because you had family support available to you for the majority of the time. I do not agree. While you were of course lucky to have the support of your family, in circumstances where others might not, this does not count against you. You spent
10 months on 24-hour EM bail, with limited exceptions to attend certain appointments. You were generally compliant. In these circumstances, I consider an allowance of eight months against the sentence is appropriate.8
[48] Next, Mr Langley, I am told that you have participated in restorative justice with Mr Tiatia’s father, and you appear to have achieved some success with him. I think also your partner and your mother-in-law may have participated in that as well. However, the other members of the whānau have made it very clear that Mr Tiatia’s father does not speak for them. I have decided not to give credit for the restorative justice process in those circumstances.
[49] However, I do accept that your remorse is genuine, based on all of the evidence I heard at the trial, including the intercepted phone call you had with your partner. I also rely on the strong pre-sentence report in this regard. For those reasons, I give you a discount of three months.
[50] I also take into account your age at the time of offending, and that you are genuinely motivated to reform. I give a discount of seven months for those factors.9
[51] The last point is this. You defended the charge of murder at both trials. Your counsel says that you offered to plead guilty to a charge of manslaughter at your retrial, but the Crown was not prepared to drop the charge of murder for one of manslaughter. Your counsel now says you should be given credit for having offered to plead guilty to manslaughter, given that was the offence for which you were convicted.
[52] The Crown says I should not give you any discount for offering to give a guilty plea, given your version of events at your first trial was conflicting and
inconsistent with the evidence you gave at your re-trial. In the first trial, you said the
8 Sentencing Act 2002, s 9(2)(h); and Hohipa v R [2015] NZCA 485.
9 Churchward v R [2011] NZCA 531.
knife was taken from the bench in the kitchen and that you grabbed it to use in response to an attack by Mr Tiatia with the vacuum cleaner pipe. At your re-trial, you accepted that the knife was kept in the bedroom and that you did not use it in self-defence.
[53] The Crown says your appeal against conviction succeeded on the basis that your trial counsel did not properly cross-examine the Crown’s witness, whose evidence was that the knife was kept in the bedroom. But at your re-trial, you accepted the bedroom was where it was. What the Crown is saying is that you lied at your first trial, and you should not be able to reap the benefits of telling lies, through the allegation of having incompetent counsel at your first trial.
[54] Normally, a defendant will get a significant discount for a clear offer to plead guilty to manslaughter, in circumstances such as you did. However, I can take account of all of the circumstances, including the fact that you did not offer to plead guilty to manslaughter at anything like the first reasonable opportunity. To the contrary, you put all of the witnesses and victims through the first trial where you falsely argued self-defence. I know your counsel says you relied on your then-lawyer’s advice, but that cannot completely excuse you. Taking all of the circumstances into account, I am not prepared to allow any discount for the offer to plead guilty to manslaughter. I also note that, although they had to endure a second trial, all of Mr Tiatia’s family and supporters had the satisfaction of hearing the true version of what happened.
Conclusion
[55] So, Mr Langley, your final sentence comes to five years, six months’
imprisonment.
[56] I do not impose a minimum period of imprisonment, given your age and your attitude, and as I said earlier, I do not consider this was a premeditated act.
[57] Stand down please.
---------------------------------------------------- Hinton J
5
0