R v Larson HC Dunedin CRI-2011-012-001013

[2011] NZHC 764

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2011-012-001013

THE QUEEN

v

MATTHEW BRYCE LARSON

Appearances: R P Bates and R D Smith for Crown

S A Saunderson-Warner and A Dawson for Prisoner

Judgment:      6 July 2011

REMARKS ON SENTENCE OF CHISHOLM J

[1]      Matthew Larson, you have pleaded guilty to a charge of manslaughter.  The victim was a 51 year old man.   The charge arose from alcohol fuelled stupidity which is all too typical of cases of this kind.

Background

[2]      At 4:30 a.m. on 12 March 2011your victim and a friend went into a fast food outlet.   As it happened, you were there with friends, having travelled from Christchurch to Dunedin to be present at the birth of your baby.  You did not know the victim or indeed his friend.  There was a verbal altercation.  Security intervened and it seems that the matter was settled by the shaking of hands.   And there the matter should have ended.  Sadly, however, without warning, you hit the victim on the side of the head.  He fell, struck his head on the floor, suffered a haemorrhage

and later died.

R V LARSON HC DUN CRI-2011-012-001013 6 July 2011

[3]      You told the police that you had punched the victim in response to what he said  and  it  seems  that  what  he  said  was  that  he  would  see  you  outside.    As Ms Saunderson-Warner  accepted,  there  is  no  suggestion  that  this  amounted  to provocation on the part of the victim.

[4]      As is inevitable in cases of this kind the victim impact statements make very sad reading.  The deceased and his partner of 17 years were planning to marry.  Her dreams have been shattered.  To her life is now without a future.  Sisters have lost a brother, a mother has lost a son and children have lost an uncle.

[5]      Over recent times there has been a good deal of publicity about the drinking habits of young people.  You have heard Ms Saunderson-Warner refer to a previous case in which Rodney Hansen J noted that a good deal of the blame for offending of this nature lies in alcohol abuse.  Indeed it does, and one must wonder when the time will come that young people will understand the dangers in alcohol abuse coupled with arrogance. After events like this happen - which have effectively destroyed two families - it is too late to take the actions back.

The offender

[6]      You are 23 years of age.  Although you have a list of previous convictions, the only convictions relating to violence were resisting the police in 2010 (in relation to which you were convicted and discharged) and male assaults female in 2009 (in relation to which you received a sentence of supervision).  In November 2010 you were released from prison, having served your sentence in relation to drink driving and driving whilst disqualified.  At the time of the offending you were subject to a sentence of community work and you were also subject to post release conditions.

[7]      The probation officer has noted that you expressed remorse; you have not tried to minimise the use of violence on this occasion; you appear to have insight into your own culpability, in other words blameworthiness, for this offending; and alcohol is the underlying problem, as is so often the case.

[8]      Numerous letters in support have been made available, Mr Larson.   This morning I have read your letter to the Court and also a copy of the letter that you wrote to the victim’s family.  You are highly regarded by those who have written in your support. You are also highly regarded by your employer.  It is apparent from all the material  that  has  been  provided  that  there  has  been  stress  arising  from  the Christchurch earthquakes and also from your exceedingly long hours of work as a result of the earthquakes. But, of course, that is no excuse for what happened here.

[9]      I accept without question that you are remorseful.  That is reflected in just about all the letters that I have read.  Ms Saunderson-Warner has also mentioned the offer to participate in restorative justice.   It is understandable, of course, that the family cannot face that type of meeting.   I take into account, however, that this is another indication of your genuine remorse about the matter.

Categorisation of offending and offender

[10]     Your offending falls within the category of what have been described as the “single punch” cases.  It was impulsive, it was fuelled by alcohol and, as so often is the case, there was an element of propensity for violence.  It is another example of young people resorting to violence without even sparing a second of thought before they do so.

[11]     It was not a premeditated act.  The blow to the side of the deceased’s head was entirely unexpected by him.  As Mr Bates put it, he was “blindsided”.  He was an older man than you and to that extent there might have been an element of vulnerability.

[12]     As far as your personal aggravating factors are concerned, these are that you:

(a)       Were subject to a sentence of community work at the time of the offending.

(b)      Were also subject to release conditions; and

(c)      Have previous convictions for violence, albeit at a low level.

Approach to sentencing

[13]     According to the Crown, I should approach the sentencing on a two-fold basis.   First, I ought to compare the starting point with the starting point that has been applied in other “single punch” cases.  In addition, I should also approach the matter on the basis of analogy with a case called R v Taueki.1   The Crown relies on R v Tai2  to support that second approach and also suggests that R v Tai gives some

guidance to the starting point that should be applied on this occasion.

[14]     I am not persuaded that this is a case where it is either feasible or right to endeavour to apply Taueki.  In Tai the Court of Appeal said at [11] that Taueki might apply where there was serious violence, and in that type of situation a Judge has a choice.  I do not categorise this as a case of serious violence within the concept of Taueki.  Nor do I think that Tai is relevant to this sentencing.  At [16] the Court of Appeal recorded:

...This was a case where the offender had used serious violence with the intention of causing serious harm.   This differentiates this case from the “single punch” manslaughter decisions...

[15]     Having said that, I accept that the circumstances of this offending, and in particular that it was a blindsided punch, can be relevant to assessing your overall culpability.

[16]     According to the Crown, the starting point that I should adopt in your case is within the range of four to four and a half years.  Then, the Crown submits, there should be what we call an uplift, an increase, of three to six months to reflect your personal aggravating circumstances.   On your behalf Ms Saunderson-Warner submitted that the Crown’s starting point is too high and that the starting point should be in the range of three to three and a half years, at the highest.

[17]     There is no tariff for manslaughter cases.  I have read a good number of cases that have been cited by counsel.  In Kepu v R3 the Court of Appeal indicated that the usual starting point for “normal” single punch cases is within the range of three to four years.  To my mind your case is in the range of three and a half to four years, but closer to the three and a half years.  Provocation has been present in some of the cases where there has been a lower starting point.  There is no provocation in this

case.

[18]     There has to be some uplift for the aggravating features; that is the fact that you were subject to a sentence, subject to release conditions and have a prior conviction for violence.  I think the Crown is right in saying that the uplift should be in the range of three to six months, and I would put it closer to the six months.   So, my adjusted starting point is four years, or a little above.

[19]     On  the  mitigating  side  there  are  two  factors  that  need  to  be  taken  into account; first, your guilty plea, second, remorse.   As far as the guilty plea is concerned, the Crown is adopting the stance that this was effectively an open and shut case and that in terms of a decision called R v Hessell4 the discount should be in the range of 10 to 15%.  On the other hand, your counsel have argued that you have, by your early guilty plea, saved the family of the deceased from going through

further trauma of a trial.

[20]     In my view, the appropriate discount for the guilty plea is within the range of

20 to 25%.  As for remorse, there is no question that you are remorseful.  There will be an added discount within the range of five to 10% to reflect remorse.

Sentence

[21]     When I factor all those matters into a sentence I arrive at a sentence of three years imprisonment.

[22]     Mr Larson, given your conviction for manslaughter, you are now subject to the three strikes law.  I am now going to give you a warning of the consequences of another  serious  violence  conviction.    You  will  also  be  given  a  written  notice outlining these consequences which lists the serious violence offences.   If you are convicted of any serious violent offences, other than murder, committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.  If you are convicted of murder, committed after this warning, then you must be sentenced to life imprisonment.  That will be served without parole unless it would be manifestly unjust.  In that event the Judge must sentence you to a minimum term of imprisonment.   That completes the sentencing process.

Solicitors:

R P Bates, P O Box 803, Dunedin

Aspinall Joel, P O Box 1384, Dunedin