R v Larson
[2020] NZHC 237
•21 February 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-004-3883
[2020] NZHC 237
THE QUEEN v
JOSEPH LARSON
Hearing: 21 February 2020 Appearances:
D Johnstone and L Deane for the Crown E Priest for the Defendant
Sentence:
21 February 2020
SENTENCING NOTES OF GORDON J
Solicitors: Crown Law, Auckland Counsel: E Priest, Auckland
R v LARSON [2020] NZHC 237 [21 February 2020]
Introduction
[1] Joseph Antonio Halaholo Larson, you appear for sentencing at the age of 21 having pleaded guilty to a charge of manslaughter.1 The maximum penalty is life imprisonment.2
[1]This follows a sentencing indication given by me on 6 November 2019.
Facts
[2] I have already addressed the facts of your offending and a starting point for the offending in detail in my earlier sentencing indication. I will not repeat that detail here. My sentence indication will be attached to these remarks and will form part of them.
[3] It is sufficient to say, for present purposes, that after some hours spent drinking and socialising in central Auckland, you stopped the vehicle driven by Reuben Telea by walking out onto Queen Street. You attempted to punch Jerico Telea, Reuben’s brother who had been travelling as a passenger in the car. He then attempted to punch you but missed. You then punched Jerico twice in the face. The force of the second punch rendered him unconscious immediately and he fell backwards hitting his head on the concrete. Efforts to assist Jerico caused him to hit his head on the concrete a second time. Jerico suffered fatal head and brain injuries and did not regain consciousness. On 22 April 2019, he was declared brain dead and his life support was turned off.
Approach to sentencing
[4] Mr Larson, sentencing involves three steps. First, I must set a starting point which reflects the gravity of your offending. Secondly, adjustments are made for personal aggravating and mitigating factors. Finally, there is a discount for your guilty plea.
1 Crimes Act 1961, s 171.
2 Section 177.
[5] In sentencing you today, I must take into account the purposes and principles of sentencing as contained in ss 7 and 8 of the Sentencing Act 2002. There are several principles I consider particularly relevant to your offending. They are to denounce your conduct, to deter you and others from using violence and to hold you accountable for the harm done to Jerico and his family. Your offending is serious, as the maximum penalty demonstrates. Jerico has tragically lost his life in circumstances that were entirely avoidable and through your conduct. You have heard the words of Jerico’s eldest sister, Anita, read out in Court this morning. You have heard the loss his family has suffered, the effect on his elderly parents, especially his mother, and the financial and emotional toll this has had on their family.
[6] Your family has experienced their grief at the ifoga, from which you were absent, but I also know from the restorative justice conference report that you met with Anita and that you have experienced not just her grief – her family’s grief – but also the graciousness of their forgiveness. I acknowledge their presence here today. I also acknowledge your family, especially your parents, who have done so much to reach out to Jerico’s family on your behalf, the delicate negotiations which led to the ifoga and their steadfast support of you.
[7] I accept that you have taken responsibility for your actions and the harm you have caused. For this reason, the Court must also consider your rehabilitation and reintegration while imposing the least restrictive outcome appropriate in the circumstances.
Starting point
[8] In my sentence indication, I applied the Taueki approach to assessing an appropriate starting point but found this did not satisfactorily reflect sentences imposed in comparable manslaughter cases. I therefore compared the circumstances of your offending with other manslaughter cases and, for the reasons set out in my sentence indication which do not need to be repeated here, I settled on a starting point of four years’ imprisonment.
[9]There are no mitigating factors relevant to your offending.
Personal circumstances
[10] I have received the Provision of Advice to the Court (the PAC report), which was not available to me at the sentence indication.
[11]The Crown accepts that, on balance, the PAC report is favourable.
[12]Ms Priest, on your behalf, submits you are entitled to discounts for:
(a)Youth;
(b)Previous good character;
(c)Remorse and restorative justice.
[13] I will consider each in turn by reference to what I said in my sentence indication. I will also review any discount for time spent on restrictive bail conditions.
Youth
[14] In my earlier sentencing indication, I said I would be prepared to give you a discount of up to 20 per cent for your youth. That was dependent on a favourable PAC report.
[15] The Crown accepts your offending can be characterised as impulsive and considers a discount of 15 per cent appropriate. Ms Priest agrees with the Crown that the PAC report is favourable. However, the Crown submits the PAC report does not thoroughly address the link between the offending and your youth.
[16] The Court of Appeal has stated that an offender’s youth may be relevant in assessing offending in three ways:3
(a)Scientific research on adolescent brain development has shown that young people are more vulnerable to negative influences and outside
3 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77]-[79].
pressures, including peer pressure, and decision-making may be more impulsive;
(b)The effect of imprisonment on young people is disproportionately harsh;
(c)Young people may have greater capacity for rehabilitation.
[17] The PAC report indicates that you had been drinking with a friend at several night clubs in central Auckland on the night of the offending. You recall that your intoxication level was high and that you were having difficulty walking when you left the last establishment. There is a suggestion that the victim’s car had to stop suddenly because you stepped onto the road. The offending occurred shortly afterwards. The report writer considers your lack of consequential thinking, arising from this level of intoxication, contributed to your offending. The report is silent on the extent to which you were subject to other outside pressures. I accept, however, that your level of intoxication contributed to your impulsive decision-making.
[18] The PAC report also provides further information on your family life and upbringing and your work ethic. The information suggests a sheltered upbringing and that you are a dedicated worker. Your employer’s remarks and the letters of support from former employers reflects this. In these circumstances, a night spent drinking at central Auckland establishments is the type of risk-taking identified by the Court of Appeal which can lead to inappropriate conduct. I am also concerned that imprisonment may have a disproportionately harsh effect on you.
[19] Finally, the PAC report provides information which indicates you have greater capacity for rehabilitation. Your offending is connected with alcohol, which must be addressed. The report writer assesses your risk of causing harm to others as high but suggests this will decrease once you undertake appropriate rehabilitation programmes. Your risk of reoffending is, in contrast, assessed as low. Your compliance with your bail conditions is noted. As I have said, you are a hard worker. You completed your secondary education to Year 13, went on to complete a bartending course and have been employed in various places since. You are well supported by your family,
especially your mother. I understand you are participating in a CADS treatment programme, which you have partially completed, and have indicated a willingness to complete an anti-violence programme. I am satisfied that your capacity for rehabilitation is high. However, I note your employment in the hospitality industry brings you into close contact with alcohol. While the cultural report refers to the importance of your work in your relationship with your father, an alternative occupation which does not involve alcohol might be desirable given the role of intoxication in your offending.
[20] After taking all of these factors into account, I will allow a discount of 20 per cent for your youth.
Good character
[21] You have two previous convictions. Both are driving offences, one for driving while suspended and one for excess breath alcohol. You were convicted of these offences in 2016. They are of a different character to the current offending.
[22] The Crown accepts that you are entitled to receive a discount for good character. Ms Priest has provided the Court with a large number of very helpful character references from your family and from present and former employers. They speak generously of your work ethic and your commitment to and care of your family together with their shock at the situation you now find yourself in.
[23] You are entitled to a discount for previous good character. I will include that as part of a global discount with remorse and restorative justice.
Remorse and restorative justice
[24] The PAC report records that you were invited to offer any other remarks during the course of the interview but you did not express any remorse. The report writer suggests this lack of insight into your offending might be attributed to your youth.
[25] In the written submissions the Crown relied on the PAC report to submit that no discount is available to you because you did not show any remorse. However, the
Crown written submissions in relation to lack of remorse were made before the report of the restorative justice process was available. Having regard to that report, Ms Deane accepts that some discount is available for remorse.
[26] Ms Priest submits your remorse is evident from your participation in the restorative justice conference and your guilty plea. She also points to the ifoga undertaken by your family with the Telea family.4 This was significant because your Tongan family followed the Samoan process (Jerico being Samoan).
[27] I acknowledge that expressions of remorse are better made directly to Jerico’s family and that you may not have considered the interview with the writer of the PAC report to be the appropriate place for you to express your remorse. Your participation in the restorative justice conference is therefore a more compelling indicator of your remorse. I have read your letter to the Telea family, which you read to Jerico’s older sister, Anita, and I accept you recognise the harm your actions have caused, the effect it has had on the Telea family and what you have learned since your offending. I accept this is a genuine expression of remorse. Equally important, with the support and encouragement of your parents and your family you are taking steps to address your use of violence and your relationship with alcohol. Words are important but actions are necessary to prove the words have meaning. You are taking the right steps to address your offending.
[28] In my earlier sentencing indication, I told you I would be prepared to give you a discount of up to 15 per cent for your remorse and participation in a restorative justice process and for your previous good character if there was satisfactory information put before me at sentencing. I am satisfied that the information provided supports a 15 per cent discount for these factors.
Section 27 cultural background report
[29] Ms Priest has filed a report addressing your cultural background pursuant to s 27 of the Sentencing Act 2002. Ms Priest highlights several points in the report:
4 R v Talataina (1991) 7 CRNZ 33 (CA).
(a) The effect of the misconception among young Tongan males that not backing down in conflict is a feature of Tongan culture (this is the key conclusion reached by the report writers on the connection between your cultural background and your offending);
(b)Events that occurred in relation to your mother;
(c)The importance of restorative justice processes in Tongan and Samoan culture and the importance of family participation in them;
(d)That the offending was out of character; and
(e)That you have the full support of you family, which will be important for your rehabilitation, particularly given your youth.
[30] Ms Priest submits that discounts are available for social, cultural and economic deprivation in appropriate cases and that discounts of 20 to 30 per cent have been applied.5
[31] I have carefully considered the s 27 report. However, I will not give a separate discount in relation to that report in your case. And, indeed, Ms Priest did not submit that a further and separate discount should be given. Many of the matters raised in the s 27 report arise out of or are connected with your youth. The key findings of the report, that there is a connection between your misconception of Tongan culture in responding to conflict and the possibility of unresolved in relation to the matter connected to your mother, both reflect your youth. That your offending is said to be out of character, only emphasises the impulsive nature of it. I consider the discount for youth I have already settled on adequately takes into account the matters raised in the s 27 report.
5 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241; Zhang v R [2019] NZHC 507, [2019] 3 NZLR 648 at [158]-[162]; R v Rakuraku [2014] NZHC 3270 (12-month discount on minimum period of imprisonment of 18 years); Keil v R [2018] NZCA 56 (discount of 20 per cent); Solicitor-General v Heta [2018] NZHC 2453 (discount of 30 per cent).
Time spent on bail
[32] The time you have spent on electronically-monitored bail is a relevant mitigating factor in terms of s 9(2)(h) of the Sentencing Act. You were initially subject to a 24-hour curfew after a week in custody following your arrest. This restriction on your liberty was progressively eased to allow you to return to attend a gym and return to work. A sentencing discount is usually only available where the bail conditions are “very restrictive”.6 As an alternative, I can take into account your time spent on bail when considering whether to impose a non-custodial sentence such as home detention.7
[33] In my earlier sentencing indication, I told you a discount of one month was sufficient to recognise the time you have served on electronically-monitored bail in light of the restrictions on your liberty. Despite the passage of time since my sentencing indication, I remain satisfied that this is an appropriate recognition of the limited restrictions on your liberty.
Guilty plea
[34]A reduction of up to 25 per cent is available for a guilty plea.8
[35] On 20 April 2019, you were charged with wounding with intent to cause grievous bodily harm. The charge was replaced with the current charge of manslaughter on 29 April 2019. You sought a sentence indication at trial callover on 11 September 2019.
[36] Ms Priest explains it was necessary for the defence to obtain an independent pathologist’s report, particularly on the issue of causation, and that took some time.
[37] As in my sentencing indication, while I acknowledge that submission, I do not consider the full 25 per cent discount should be applied. I consider a discount of 20 per cent is appropriate.
6 Winkelmann v R [2010] NZCA 215 at [21], and BB (CA732/12) v R [2013] NZCA 139 at [16].
7 See, for example, R v Edwards [2008] NZCA 205 at [15].
8 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
Final sentence
[38] I have set a starting point of four years’ imprisonment. I have allowed discounts of 20 per cent for your youth, 15 per cent for remorse and previous good character and one month for time spent on bail. Applying these discounts to the starting point gives a sentence of two years, six months’ imprisonment. The further discount of 20 per cent for your guilty plea renders a final sentence of two years’ imprisonment.
Home detention
[39] Since the final sentence I have settled on is two years’ imprisonment, a sentence of home detention may be available.9 However, a short-term sentence should not always be substituted with a sentence of home detention. This is a matter of discretion to be exercised in a considered and principled way, particularly to give effect to the principles of denunciation and deterrence. I must decide whether imprisonment or home detention will be the least restrictive sentence to impose given the purposes of sentencing.
[40] The Crown accepts that an electronically monitored sentence is an appropriate sentence.
[41] Ms Priest agrees. She cites a number of helpful cases where defendants whose offending is similar to yours were sentenced to a period of home detention.10 She submits the matters addressed in the cultural report also favour a sentence of home detention. Ms Priest draws attention to your compliance with your bail conditions as evidence of your ability to comply with the conditions of a community-based sentence. She says you will be able to access treatment programmes while serving a sentence of home detention and, as already noted, you are participating in CADS sessions.
[42] The PAC report recommends a sentence of imprisonment. You are being sentenced on a violence offence so, even though this is the first time you appear for
9 Section 15A(1)(b), Sentencing Act 2002. A short-term sentence is a determinate sentence of imprisonment of 24 months or less.
10 R v Tarawa [2018] NZHC 3205, R v Timu HC Auckland T031152, 2 September 2003, R v Hetaraka [2015] NZHC 2631, R v Feleti [2019] NZHC 94.
sentence before a Court, you are assessed as having a high risk of causing harm to others. However, your risk of reoffending has been assessed as low. You clearly have substantial family support and, as earlier noted, there is the support your employer has expressed. There are no difficulties with the proposed address and the necessary consents have been obtained. While alcohol has evidently contributed to your offending on this occasion, the screening test indicates low level alcohol use. However, with the support of your family you are taking steps to address this issue and the propensity to violence demonstrated by your offending.
[43] I consider a sentence of home detention is appropriate to your circumstances. You have excellent family support and I am satisfied that, surrounded by your family, you will have the opportunity to address your offending and the role of violence and alcohol. It is the most effective sentence, and the least restrictive, for holding you accountable for your actions whilst also providing for your rehabilitation. The appropriate term is 12 months.
Conditions
[44]Your sentence will be subject to the following conditions:
(a)To travel directly to [address] and await the arrival of a supervising probation officer and/or electronic monitoring company;
(b)To reside at [address] for the duration of home detention;
(c)To attend an assessment for alcohol and drugs. To attend and complete an appropriate alcohol and drugs programme (including residential) as recommended by the assessment to the satisfaction of the probation officer and programme provider. Details of the appropriate programme to be determined by a probation officer;
(d)To undertake and complete any appropriate treatment/counselling, (including employment/training and education) to the satisfaction of the probation officer and treatment provider. Details to be determined by a probation officer;
(e)To abstain from the consumption of alcohol and/or illicit drugs throughout the duration of your sentence.
Sentence
[45]Mr Larson would you please stand.
[46] I sentence you to 12 months’ home detention subject to the conditions I have already mentioned.
[47]Stand down please.
Gordon J
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE
THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KOTI MAT UA O AOTEAROA TAMAKI MAKAURAU ROHE
CRI-2019-004-3883 [2019] NZHC 2894
THE QUEEN
JOSEPH LARSON
Hearing: 6 November 2019
Appearances: B Northwood and L Deane for the Crown
E Priest for the Defendant
Judgment:
6 November 2019
SENTENCE INDICATION OF GORDON J
Solicitors: Crown Law, Auckland Counsel: E Priest, Auckland
R v LARSON [2019] NZHC 2894 [6 November 2019]
Introduction
[1] Joseph Larson, you appear for a sentence indication on one charge of manslaughter pursuant to s 160(2)(a) and s 171 of the Crimes Act 1961. The maximum penalty is life imprisonment.'
Factual background
[2] For the purposes of this sentence indication, there is an agreed summary of facts. On Saturday 20 April 2019, you and your associates drove to Auckland City to attend a night club. At the club, you all consumed alcohol and socialised. At another bar, the deceased, Jerico Telea, and his brother, Reuben Telea, were also consuming alcohol and socialising.
[3] In the early hours of that day, around 4.15 am, you and your associates walked down Vulcan Lane and on to Queen Street. At this time, Reuben Telea was driving on Queen Street with his brother Jerico Telea as a passenger. Mr Larson, you walked out onto the road with complete disregard for oncoming traffic, directly in the path of Reuben Telea’s vehicle. From the vehicle, Jerico Telea yelled to you, “What are you doing, get off the road”. You responded, “Jump out then”.
[4] Jerico Telea exited the vehicle and approached you with his hands down by his side. You attempted to punch him; he narrowly avoided the punch. He then attempted to punch you; you avoided the punch. Your associate pushed Jerico Telea backwards and gestured for him to stop and get back into the vehicle. Jerico Telea walked towards you and stood still with his hands down by his side. You were in a fighting stance with your fists clenched. You threw a left-jab which connected with Mr Telea’s face. You instantly followed with a right-hook style punch also to Mr Telea’s face. The force of that punch rendered him unconscious instantly. He fell backwards and, unable to break his fall, he hit the back of his head on the concrete.
[5] You then walked away without checking on Mr Telea’s condition. You hugged and shook hands with several members of the public as you walked away. Your
' Crimes Act 1961, s 177.
associate stayed at the scene. Reuben Telea exited the vehicle and put Jerico Telea in a seated position to check his condition. Reuben Telea became distracted when your associate said something to him, and he let go of Jerico Telea. As a result, Jerico Telea, who was still unconscious, fell backwards, again hitting his head on the concrete.
[6] Reuben Telea and other members of the public then put Jerico Telea in the back of the vehicle. He was still unconscious and in an unsafe position in the back of the vehicle. Reuben Telea, assisted by a member of the public, removed Jerico Telea from the vehicle and placed him in the recovery position on the footpath while waiting for the Police to arrive.
[7] Jerico Telea sustained fatal head and brain injuries and was transported to the Auckland Hospital. He never regained consciousness. On 22 April 2019, he was declared medically and legally brain dead; life support was turned off that same day.
Approach to sentence indication
[8] A sentence indication is not the same as a sentencing. A sentence indication indicates the type, range and*or quantum of the sentence the Court would likely impose if you were to plead guilty.' A three-stage approach is taken to sentencing. First, the Court identifies a starting point which reflects the gravity of the offending. Secondly, adjustments are made for any personal aggravating and mitigating factors. Finally, there is a discount for a guilty plea.
[9] In a sentence indication, a Court may have no or limited information on personal aggravating and mitigating factors. In this case, I have some information in relation to your personal mitigating factors. I will refer to those in due course.
[10]In determining an appropriate sentence indication, there are a number of
purposes and principles which Parliament has said I must take into account.3 I regard the requirement to denounce your conduct, to deter you and others from resorting to violence, and to hold you accountable for the harm done to Jerico Telea and his family as particularly relevant. The seriousness of the offending, indicated by the maximum' Criminal Procedure Act 2011, s 60. ' Sentencing Act 2002, ss 7-8.
penalty as compared to other offences, is also relevant. A man has lost his life in circumstances that were entirely avoidable and through conduct that is rightly regarded as unacceptable. On the other hand, the courts must bear in mind the purpose of assisting an offender’s rehabilitation and reintegration and to take account of the need to impose the least restrictive outcome that is appropriate in the circumstances.
Starting point
Approach to manslaughter sentencing
[11] The maximum penalty for manslaughter is life imprisonment.‘ Manslaughter covers a wide range of circumstances which have led to a person’s death; at times, these may come close to inadvertence; at others, they may fall just short of wilful murder. 5 For this reason, there is no guideline judgment for manslaughter cases.
[12] There are two available approaches to manslaughter sentencing. 6 The first is to sentence on the basis of fi v Taueki, which is the Court of Appeal’s guideline decision for serious violent offending, with adjustments for the fact that the consequence was death. The second approach is to assess culpability by reference to comparable manslaughter cases.
[13] The Court of Appeal has previously held that “counsel of perfection” would utilise both approaches, each providing a check on the other. That is the approach adopted by Mr Northwood, for the Crown. However, Ms Priest, on your behalf, submits that the proper approach in your case is to assess your culpability by reference to other manslaughter cases.
[14] As to the starting point, Mr Northwood submits that between five to five and a half years’ imprisonment is the appropriate starting point, whereas Ms Priest, on your behalf, submits it should be three to three and a half years.
4 Crimes Act 1961, s 177.
R v Wickl rife [1987] 1 NZLR 55 (CA); and fi v Feleti [2019] NZHC 94 at [19].
Blacker v R [2019] NZCA 232 at [11]; and Everett v R [2019] NZCA 68 at [24]—[28].
R v Taueln [2005] 3 NZLR 372 (CA).
R v Tai [2010] NZCA 598 at [12].
The Taueki factors
[15] The Crown submits that the alleged offending involves four aggravating features, two of which are present to a high degree. Those factors, identified both in s 9 of the Sentencing Act 2002 (the Act) and in fi v Taueki, are (the Crown submits):
(a) A moderate degree of violence. While the violence may not have been extreme, its gratuitous nature is aggravating.
(b) The most serious form of injury, death, resulted. This factor is therefore present to a high degree.
(c) Your punches which connected with Mr Telea did so on his face. This factor is therefore present to a high degree.
(d) The effect on Mr Telea’s family, given his death.
[16] The Crown therefore submits that your alleged offending would fall within the mid to lower end of band 2 of Taueki (a five to 10 year starting point), with a further uplift required to account for the fact that death occurred.
[17] On the other hand, Ms Priest submits that the Taueki approach should not be adopted because it is not correct to say that serious injury was both caused and intended by you. As to causation, Ms Priest refers to the fact that after Mr Telea fell to the ground he was then lifted to a sitting position by those assisting him and was accidentally dropped causing a second impact to the back of his head. However, the pathologist’s report, which Ms Priest refers to, states:
It is impossible for me to comment how much, if any, the short fall contributed to the total injuries. I can say with a reasonable degree of medical certainty, that the short fall alone did not cause all these injuries.
[18] And, as Ms Priest accepts, your actions cannot be excluded as a contributing factor in Mr Telea’s death. The injuries resulting from your actions, in terms of the legal test, were a substantial and operative cause of Mr Telea’s death.
fi v Taueln [2005] 3 NZLR 372 (CA).
[19] As to Ms Priest’s submission that it is erroneous to say that you intended to cause really serious injury, I consider that such an intention can be inferred from the summary of facts which you have agreed to. I accept that this was not a case of extreme violence but you nevertheless punched Mr Telea twice in the face. The second punch was delivered with sufficient force to render him unconscious.
[20] I therefore consider that the Taueki approach is available for the purposes of assessing the appropriate starting point. I consider there are two aggravating factors in your alleged offending: attacking the head (or the face) and Mr Telea’s resulting death. That would put your alleged offending at the bottom of band 2, resulting in a starting point of five years.
[21] Having said all of that, when I undertake a cross-check by considering sentences imposed in like manslaughter cases, I consider that a five year starting point in your case would be too high. For that reason, I will follow the approach of assessing culpability by reference to comparable manslaughter cases. I am grateful to both counsel for their assistance in providing the Court with references to and discussion of a large number of cases. I do not repeat those discussions in this decision, but I refer to the cases in footnotes, first those mentioned by the Crown' 0 and then those relied on by Ms Priest.''
[22] For the purposes of setting a starting point I set out what I consider are the relevant factors in your case:
(a) Your punches were directed at, and landed on, Mr Telea’s face. That therefore increased the risk of injury which ultimately did occur.
(b) The attack on Mr Telea involved a moderate degree of violence.
io Blackle r v R [2019] NZCA 232; fi v Felise [2019] NZHC 341; Murray v R [2013] NZCA 177;
R v Palmer [2016] NZHC 1962; and fi v Tai [2010] NZCA 598.
11 R v Breynton HC Auckland CRI-2009-004-3080, 7 April 2009; fi v Cassidy HC New Plymouth T2/03, 10 July 2003; fi v Efeso HC Auckland CRI-2008-092-7925, 24 October 2008; fi v Feleti [2019] NZHC 94; fi v Hetaraka [2015] NZHC 2631; fi v King [2012] NZHC 3072; fi v Larson HC Dunedin CRI-2011-012-1013, 6 July 2011; fi v McFarland [2014] NZHC 1106; fi v Nepia [2019] NZHC 1932; fi v Sagatea HC Auckland CRI-2009-092-17953, 20 May 2010; fi v Steen HC Hamilton TO33048, 29 June 2004; fi v Tarawa [2018] NZHC 3205; and fi v Timu TO31152, 2 September 2003.
(c) You punched Mr Telea twice. This is therefore not what is commonly referred to as a “one punch” case. However, I accept that the two punches were thrown in quick succession and could arguably be said to be part of the one act.
(d) After Mr Telea fell to the ground you walked off without rendering any assistance to him. But I accept that there were others present, including your associate, who were able to, and did, provide assistance to Mr Telea.
(e) Then there is your behaviour which followed. You hugged and shook hands with several members of the public as you walked off. As you continued to walk away you were heard to say to your associate while laughing, “Did you see how I knocked the guy out?”. You then said, “This is how the guy dropped when I knocked him out”, demonstrating by dropping to the ground and shaking as if you were having a seizure. However, I am prepared to give you the benefit of the doubt and accept that your responses were stupid, thoughtless and drunken youthful behaviour rather than indicating anything more sinister on your part.
[23] As to whether there are any mitigating factors of your offending, Ms Priest submits that Mr Telea was an equal participant in the aggression and that there was an element of provocation by Mr Telea.
[24] However, the Court of Appeal has held that simply claiming to have been “incensed” by actions of another is insufficient; there must be “serious provocation which was an operative cause of the violence”." Mr Larson, you walked onto the road in front of the vehicle Jerico Telea was in. You threw the first punch which missed. He did retaliate by attempting to punch you. He also did not get back into the car when your associate gestured for him to do so. But when you threw your jab-hook combination, Mr Telea’s hands were down by his side. In those circumstances, I do not consider there is provocation which mitigates your offending. You were the initial
" fi v Taueln [2005] 3 NZLR 372 (CA) at [32](a).
aggressor and when you delivered your combination punches, as I have said, Mr Telea had his hands by his side.
[25] The starting points in the cases referred to by the Crown range from four to eight years. The higher starting points adopted in those cases involved multiple brutal attacks: attacks to the extent that the victim’s face was almost unrecognisable, a “brutal attack” involving multiple hits, and kicking a vulnerable, unconscious victim in the head.
[26] Ms Priest refers to the statement by the Court of Appeal in Murray v fi that a common starting point for one punch manslaughter cases is between three and four
years.'3 However, the Court then noted that the starting point for manslaughter may
need to be increased where culpability was higher. As to other cases cited by Ms Priest, many of them involved elements of provocation.
[27] Mr Larson, I consider that your case falls within the lower end of the range of cases referred to by the Crown. Taking into account all of the relevant factors I have identified and by reference to like cases, I consider the appropriate starting point is four years’ imprisonment.
Personal circumstances
[28] I now consider adjustment for your personal circumstances. I note that, at this stage, I do not have the benefit of the Provision of Advice to the Court which is a report prepared for sentencing.
[29]The Crown submits it is not aware of any aggravating factors personal to you.
[30] As to mitigating factors, Ms Priest submits that you are entitled to discounts for:
(a) Youth;
" Murray v R [2013] NZCA 177 at [21].
(b) Previous good character;
(c) Remorse and restorative justice; and
(d) Time spent on restrictive bail conditions.
Youth
[31] Ms Priest submits that you are entitled to a 20 per cent discount for your youth and rehabilitative prospects. You were 20 years old at the time of the alleged offending. I accept that this qualifies as youth." The Court of Appeal has commented that an offender’s youth may be relevant to assessing their offending in three ways:' 5
(a) First, scientific research into adolescent brain development has shown that young people are more vulnerable to negative influences and peer- pressure, and their decision-making is also more impulsive.
(b) Secondly, the effect of imprisonment is disproportionately harsh on young people. Adolescents in prison suffer from higher rates of depression, self-harm, suicidal ideation or thoughts, and victimisation by other inmates.' 6
(c) Thirdly, young people have a greater capacity for rehabilitation.
[32] The Crown accepts that a discount for youth may be appropriate. It accepts that, to an extent, your alleged offending can be characterised as impulsive. However, Mr Northwood submits that this needs to be balanced against the seriousness of the offending and whether you demonstrate a real prospect of rehabilitation. Accordingly, the Crown reserves its submissions on the percentage discount appropriate until the Provision of Advice to the Court is made available.
'4 See fi v Tarawa [2018] NZHC 3205, where the defendant was 21 years old. " Churchward v R [2011] NZCA 531 at [77]—[79].
" At [85].
[33] In the absence of a Provision of Advice to the Court, I am not able to express a final view on a discount for youth. What I can say is that if the Provision of Advice to the Court is favourable, then I would be prepared to give you a discount of up to 20 per cent for your youth.
Previous good character
[34] Ms Priest further submits that a discount for your previous good character should be given. At this stage no character references have been filed, but I am told they would be available at sentence. The Crown accepts that you may be entitled to such a discount. You have two previous convictions, one for driving while suspended in 2016 and one for excess breath alcohol, which occurred when you were stopped shortly after the alleged offending. I accept that those convictions are of a different nature and I would be prepared to give you a discount for previous good character. I will include that as part of a global discount with the next two factors.
Remorse and restorative justice
[35] Ms Priest submits that you are entitled to a further discount for the restorative justice process undertaken between your family and the Telea family. Your two families participated in a traditional ifoga before Mr Telea’s burial. The Crown makes no submissions on this particular point, but generally accepts that the Court may take your personal circumstances into account.
[36] The Court of Appeal, in fi v Talataina, considered expert evidence regarding the principles of an ifoga:"
Affidavit evidence, which we agreed to accept, shows that within the villages of Samoa the custom of ifoga often operates in place of a formal criminal justice system and spans all manner of offences from minor dishonesty to serious sexual offences. Where, as here, the wrong is done to the family of a Matai, the amends must be offered by a Matai, who proffers gifts of value, including fine mats which are many years in the making and are regarded as of the highest value. The offer is almost always accepted and reconciliation thus affected (sic).
" fi v Talataina (1991) 7 CRNZ 33 (CA) at 35.
[37] The Court also referred to the role of a traditional ifoga in the criminal justice system as follows:"
An offender’s willing participation in it may be indicative of genuine contrition and remorse on his part. It may also show the strength of the support he will have from his family in his rehabilitation. With certain kinds of offence, the amends made may be enough largely to satisfy the needs of justice.
[38] Ms Priest advises the Court that, as is custom, your family attended with Mr Telea’s family, offering their apologies both verbally and through the exchange of gifts of their finest woven mats and money. Gifts were offered in return. Ms Priest understands that the apology was accepted.
[39]You were unable to participate as you were remanded in custody at the time.
[40] At this stage, I do not have enough information to reach a concluded view on a discount for any remorse and the process of restorative justice. Ms Priest submits you are dedicated to your family and their customs. She contrasts this with the position in Talataina where the Court considered the defendant had distanced himself from family and accordingly the Court could not have confidence in the rehabilitative prospects of this custom. Ms Priest goes on to submit that you have been profoundly impacted by the actions of your family and the family of Mr Telea taken because of your offending. I note that there are many members of your family in court today, and in fact there is not sufficient seating to accommodate them all. You clearly have their support.
[41] What I can say is that if there is satisfactory information put before me at the time of sentencing to support the submissions that Ms Priest makes today, then I would be prepared to give you a discount of 15 per cent for remorse, restorative justice and your previous good character.
" At 36.
Time spent on restrictive bail
[42] Ms Priest seeks a discount for the time you spent on restrictive bail. She says you have been on 24-hour curfew since being released after approximately one week in custody following your arrest. The Crown makes no submissions on this point.
[43] It is apparent from the court file that the 24-hour curfew has been progressively relaxed. The final variation made on 16 August 2019 enabled you to return to work between 9 am to 6 pm on Tuesdays to Saturdays. You were also able to attend a gym for an hour in the evening on Tuesdays and Thursdays. An earlier variation on 22 May 2019 had also enabled you to attend a gym on other days and at other times.
[44] I recognise that the time a defendant spends on electronically-monitored (EM) bail is a relevant mitigating factor pursuant to s 9(2)(h) of the Act. In this case, I consider that a discount of one month would be warranted, having regard to the relaxation of the conditions attached to your bail. I do not consider it could be said that your liberty was severely restricted.
The discounts applied to the starting point
[45] I repeat that the 20 per cent discount for your youth and the 15 per cent global discount for your previous good character, remorse and restorative justice process may be subject to change depending on the contents of a Provision of Advice to the Court.
[46] Applying a 35 per cent discount (that is a combination of 20 per cent and 15 per cent) to a starting point of four years imprisonment results in two years and seven months’ imprisonment. From that, I deduct one month for time spent on bail, resulting in a sentence of two years and six months before considering a discount for a guilty plea, to which I now turn.
Guilty plea
[47] A reduction of up to 25 per cent is available for a guilty plea." The Crown submits that a reduction of 15 to 20 per cent is appropriate in your case. On 20 April
" Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74]—[75].
2019, you were charged with wounding with intent to cause grievous bodily harm. That charge was replaced with the current charge of manslaughter on 29 April 2019. You sought a sentence indication at trial callover on 11 September 2019. Ms Priest submits that you are entitled to the full 25 per cent discount. She explains it was necessary for the defence to obtain an independent pathologist’s report, particularly on the issue of causation and that has taken some time.
[48] I do not overlook that submission but, nevertheless, consider that the full 25 per cent discount should not be applied. I consider a 20 per cent discount is appropriate.
Home detention
[49] Mr Larson, a 20 per cent discount on a sentence of two years and six months imprisonment would leave an end sentence in the vicinity of two years’ imprisonment. Although such a sentence means an electronically-monitored sentence may be available, I make it clear that the Court, at this stage, is not in a position to address the suitability or otherwise of home detention.
[50] In the absence of the Provision of Advice to the Court, the Court is not in a position to decide whether your particular circumstances would mean that a sentence of home detention is appropriate. However, in that regard I note that the Crown takes the position that, subject to the contents of the Provision of Advice, the Court may consider, that, in the circumstances, a sentence of home detention is appropriate.
CODCluSiOn
[51] My indication to you at this stage, Mr Larson, is that I would sentence you to a period of imprisonment in the vicinity of two years with the possibility of home detention, depending on the contents of the Provision of Advice to the Court and any other personal matters raised at your sentencing.
[52] This sentence indication will remain open until 5 pm on Wednesday, 13 November 2019.
Gordon J
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