R v MacDonald
[2021] NZHC 224
•15 February 2021
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2019-054-002951
[2021] NZHC 224
THE QUEEN v
TIMOTHY MACDONALD
Counsel: B Vanderkolk and E Pairman for Crown E Killeen for Defendant Sentence:
15 February 2021
SENTENCING NOTES OF GRICE J
Overview
[1] Mr MacDonald, you have pleaded guilty to a charge of manslaughter. You have been remanded in custody since 12 November 2020,1 when I gave you a first strike warning.
[2] Since then a pre-sentence report, a s 38 psychological report (Psychological Report)2 and a s 27 cultural report (Cultural Report)3 have been prepared and I have those before me today.4
1 R v Macdonald HC Palmerston North CRI-2019-054-002951, 12 November 2020.
2 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 38.
3 Sentencing Act 2002, s 27.
4 This sentencing was delivered orally on 15 February 2021. The written form has been edited for grammar and flow, and has been footnoted before distribution, but the substance of the decision remains unchanged.
R v TIMOTHY MACDONALD [2021] NZHC 224 [15 February 2021]
Background
[3] The victim was your first cousin, Mr Joeora Te Rupe. Mr Te Rupe had been in a ten-year relationship with your friend Ms Tindall, which ended in October 2018. They both stayed in touch.
[4] Mr Te Rupe introduced you to Ms Tindall, you got to know her and the two of you began a relationship.
[5] Mr Te Rupe became aware of this relationship after you told him about it, and was not very happy about it. This caused tension between the three of you.
[6] On the evening of 13 October 2019, Mr Te Rupe sent a number of hostile messages to Ms Tindall. He sent more angry messages the next morning. The final message he sent was at 11.15 am and he stated he would see you soon. Ms Tindall said to the police that she did not see these messages. There is no indication you saw them either.
Offending
[7] At 11.21am, on 14 October Mr Te Rupe arrived at the house where you and Ms Tindall were residing.
[8] When Mr Te Rupe knocked on the door, you said you would go the door and on the way to the door you armed yourself with a loaded 12-gauge sawn-off pump-action shotgun that was loaded with six live shotgun shells. You had stored this in the hallway.
[9] A next-door neighbour heard Mr Te Rupe yelling “let me in”, before you opened the door. Mr Te Rupe then entered and there was an altercation described by Ms Killeen as a tussle between the two of you.
[10] In the course of that, a single shot was discharged at close range.5 Mr Te Rupe was struck in the upper right thigh/groin area. His right femoral artery was damaged and that caused major blood loss.
[11] Ms Tindall administered first aid and rang 111 for an ambulance. You told her not to ring the police but you told her to tourniquet Mr Te Rupe’s leg. Ms Tindall also used a towel to try and stem the blood flow. Ambulance and police staff arrived and transported Mr Te Rupe to hospital. Unfortunately he died the following morning.
Subsequent conduct of Mr MacDonald
[12] While Ms Tindall was tending to Mr Te Rupe, you went back into the bedroom, put on your gang patch, and left the property. This was less than four minutes after Mr Te Rupe walked up the stairs. You left with the shotgun concealed in your bag. You took Mr Te Rupe’s phone and put it in a gutter in the street.
[13] You then went to a nearby associate’s address, where you tried to conceal the shotgun, and the ammunition and some of your clothing. You were found the next day.
Comments to police
[14] You told the police that it was unfortunate that Mr Te Rupe had died. In your police interview, you admitted shooting Mr Te Rupe, initially maintaining it was an unfortunate accident. Later, you said you may have intentionally pulled the trigger out of fear or panic. The summary of facts notes the firearm was functional and average pressure on the trigger was required to fire it.
[15] You told police that Mr Te Rupe came to the house with bad intentions, and that he probably could not get over the fact Ms Tindall had moved on. You said you picked up the gun before answering the door as “[you] knew it wasn’t a friend, just by the way the person had banged the door”. You said you had no intention to kill your cousin, but he was trying to pull the gun off you.
5 A scientist from the Institute of Environmental Science and Research estimates the distance was unlikely to be closer than 250mm and no further than 750mm.
Principles and purposes of sentencing
[16] That is what brings us here today. I have to take into account the purposes and principles of sentencing. The Sentencing Act 2002 sets out those principles and purposes.
[17] The relevant purposes here are accountability, denunciation, making you responsible for your actions and deterrence.6 You must be held accountable for the harm you have caused by your offending to the victim who is of course no longer here, to his whānau and to the community.
[18] However, any sentence imposed today must be consistent with sentences imposed in other similar cases.7
[19] I have to impose the least restrictive outcome that is appropriate in the circumstances.8
Approaches to manslaughter sentencing
[20] Manslaughter is a charge that applies to a variety of different fact situations and different levels of blame attach to a defendant. For that reason, there is no standard guidance available in sentencing. Sentences widely vary and the Courts have referred to a number of cases, as has Ms Killeen, that have some elements which are similar to yours, but none are exactly the same.9
[21] In cases where serious injury was foreseeable, the courts will refer to similar cases and to guidelines for the serious violence offences set out in R v Taueki.10 The Court of Appeal in Taueki listed a number of factors that tended to increase the seriousness of offending.11 Of those, four are relevant here: the extreme violence, premeditation, serious injury and use of a weapon.
6 Sentencing Act 2002, ss 7(1)(a), (b), (e) and (f).
7 Section 8(e).
8 Section 8(g).
9 R v Edwards [2005] 2 NZLR 709 (CA) at [14]; citing R v Leuta [2002] 1 NZLR 215 (CA) at [49]- [59].
10 R v Tai [2010] NZCA 598; and R v Taueki [2005] 3 NZLR 372 (CA).
11 R v Taueki, above n 10, at [32].
[22] The Court in that case also noted that provocation and excessive self-defence were matters to be considered in reducing the seriousness of the offending. The Court said:
…where a party has acted out of self defence but has gone too far, the fact that the attack initially commenced as an effort to defend himself or herself (or another) may be seen as reducing the seriousness of the offending.
[23] The first step is to set a starting point based on the comparison with those similar cases which take into account the aggravating and mitigating factors of this offending. I then cross-check against the three bands of offences which are set out in the Court of Appeal decision in Taueki.12
[24] Secondly, I move on to consider the aggravating and mitigating factors that are personal to you, and any uplifts or discounts that should follow. Included in that step is a discount which I will allow for your guilty plea.
Summary of submissions
[25] I am going to summarise the submissions I have heard both from your counsel and the Crown in some detail because it is there that the essence of the cases which I compare with your case come from. The Crown suggests that I should start at a point of no less than seven years’ imprisonment, which places the offending in band two of the Taueki offending bands. Ms Pearson for the Crown points to the use of the weapon and the serious injury as two aggravating factors that were present to a high degree here. Extreme violence and premeditation are present, she says, to some extent but to a lower degree. Another aggravating factor Ms Pearson points to include the fact that you did not offer assistance to Mr Te Rupe after discharging the firearm.13 The Crown also says excessive self-defence is not a mitigating factor.
[26] Ms Pearson also notes that it is appropriate to factor in a discount of 25 per cent for a relatively early guilty plea.14
12 R v Taueki, above n 10, at [34]: band one is three to six years’ imprisonment; band two is five to 10 years’ imprisonment; and band three is nine to 14 years’ imprisonment.
13 R v Christie HC Gisborne CRI-2003-016-6522, 28 October 2004; and R v Flavell [2014] NZHC 3373.
14 This was confirmed in their memorandum of counsel filed in addition to their submissions.
[27] Ms Killeen, for you, on the other hand, says a starting point of six years’ imprisonment is appropriate. She submits that excessive self-defence is relevant here while she accepts that use of a firearm and serious injury leading to death were significant aggravating factors. She emphasises that there was no extreme violence nor premeditation.
[28] As for personal factors, Ms Killeen says a 30 per cent discount should be given for the factors mainly set out in the cultural report, for remorse and for your willingness to be involved in restorative justice.
Starting point
[29]I now look at some comparable cases. The Crown cited:
(a)Jefferies-Smith v R:15 Mr Jefferies-Smith went to the deceased’s home to retrieve his car after the deceased had taken it as a “tax” for a drug debt and had refused to give it back. When the deceased returned home, Mr Jefferies-Smith asked for his car keys back. The deceased refused, and as the deceased began walking away, Mr Jefferies-Smith shot the deceased twice in the back. The jury convicted Mr Jefferies-Smith of manslaughter. The Court of Appeal upheld there a 10-year starting point. It considered comparable cases. The Crown, however while putting forward that case says your case is not as serious as the Jefferies-Smith case.
(b)Another case the Crown refers to is R v Christie.16 In that case there had been an argument between brothers. Mr Christie produced a gun and shot his brother causing death. The witnesses who had been with the brothers said they had not heard the argument – exactly why Mr Christie shot his brother was not clear. There was a suggestion he had been intending to shoot at the ground but had accidentally shot his brother. Regardless, the Judge held there was premeditation.
15 Jeffries-Smith v R [2020] NZCA 315.
16 R v Christie, above n 13.
Mr Christie had deliberately obtained the firearm and been extremely reckless in taking the weapon to deliberately scare his brother, if that was what he was doing. Mr Christie also failed to assist his brother and the Judge there set a starting point of eight years’ imprisonment.
(c)In R v Flavell,17 the victim approached the car in which Mr Flavell and his girlfriend were sitting. The victim was upset about the relationship between Mr Flavell and his girlfriend and the victim punched Mr Flavell twice in the head through an open window before attempting to speak to Mr Flavell’s girlfriend. As the victim walked away, Mr Flavell removed a pump action shotgun from behind the seat, exited the car and shot the victim in the chest at close range, resulting in death. The Judge there set a starting point of seven years and six months.
[30]Ms Killeen, however, says the following cases are more comparable:
(a)R v Pira:18 Mr Pira took a sawn-off rifle to confront the victim after a dispute with Mr Pira’s girlfriend who alleged the victim had assaulted her. During the altercation, the victim punched Mr Pira; there was a struggle over the firearm before it discharged. Mr Pira drove away after the victim took control of the firearm, but Mr Pira was unaware that the victim was fatally wounded. The Court held Mr Pira could not have realised the seriousness of the injury and it took a starting point of six years.
(b)R v Kirk:19 Mr Kirk had lived with his mother and partner, who was the victim. Mr Kirk had been pursued earlier by members of a gang so he had rifle in the house for protection. After an argument between Mr Kirk’s mother and partner (the victim), the victim began verbally abusing Mr Kirk’s mother. The argument escalated, involving everybody in the household. The victim had a large meat cleaver and
17 R v Flavell [2014] NZHC 3373.
18 R v Pira HC Rotorua CRI-2006-063-329, 13 December 2006.
19 R v Kirk [2016] NZHC 1249.
swung it at the members of the house. All the parties ran outside and Mr Kirk then returned and went to his bedroom with the victim following. Mr Kirk pointed the gun at the victim and fired six shots: two hit the victim directly. Mr Kirk fled; the victim came outside and died on the driveway. The Judge took into account the use of the weapon but found that it was used impulsively and “motivated by fear rather than premeditation”.20 The Judge found Mr Kirk was acting in self-defence and also referred to the aggressive conduct of the victim. The Judge finally arrived at a starting point of four years in that case.
(c)Wang v R:21 In Wang, the two victims visited Mr Wang to deliver a trespass notice. “There was bad blood between the men”,22 and a violent struggle ensued. During that fight, Mr Wang picked up a hunting knife, and he claimed it was for self-defence. The two victims died as a result of the wounds inflicted by Mr Wang. Mr Wang was acquitted of murder but found guilty of manslaughter in relation to one victim. He was acquitted entirely for the other due to self-defence. A starting point there was taken of four and a half years’ imprisonment. That took account both the provocative situation, which confronted Mr Wang, and the fact that he was acting in self-defence.23
[31] So as I have said earlier, from the summary of comparison with all those cases, the Crown suggests a starting point of no less than seven years. That would be consistent with band two of the Taueki offending band.
[32] Ms Killeen, however, emphasises you did not intend to inflict a fatal injury, that pulling the trigger was a reflex reaction during an altercation over the firearm and that you were acting in self-defence.
[33] The Crown has made submissions on the inconsistency of those submissions, however, I understand the intention behind the submissions that it was a spontaneous
20 R v Kirk, above n 19, at [64].
21 Wang v R [2014] NZCA 251.
22 At [1].
23 Wang v R [2014] NZCA 251, above n 21, at [35].
event where you did not have the gun with the intention of shooting Mr Te Rupe. I did not find Jefferies-Smith v R particularly relevant here as the Crown acknowledged the offending was more serious. That was particularly given the home invasion aspect (which is a separate factor specifically mentioned in Taueki).24 It also involved a high degree of premeditation, and two shots were fired into the back of a retreating victim. The case of R v Christie is closer, but while it has some similarities, in my view, there was a higher level of premeditation, even if the weapon, as the defendant said, was for the purposes of scaring the victim only. However, in that case, the exact escalation of the conflict is not clear. In this case, the firearm was at hand, but the intention was that the firearm was not to be used other than for defence or intimidation. And that is the point that Ms Killeen made.
[34] R v Flavell, to which I have referred, is also relevant and there are some similarities. However, in that case, the escalation of violence was much more rapid and it lacked the close proximity of the struggle that occurred in this case. The victim in that case had stopped attacking Mr Flavell and was actually walking away when he was shot.
[35] In R v Kirk, the victim was “extremely violent” and “behaving unpredictably”. He was in the defendant’s bedroom with a large meat cleaver. The immediate threat was greater than is present in this case. But there are some similar factors to a much lesser extent.
[36] There was a vigilante element in R v Pira, as Ms Killeen points out, which underscores the premeditation. In contrast, Mr Te Rupe was the aggressor and came to you. There was a similar tussle over the firearm. It also seems the injury Mr Te Rupe sustained was more obvious, than the victim’s injury in R v Pira to Mr Pira.
[37] In Wang v R, a more violent struggle occurred, and the weapon, which was a knife rather than a shotgun, was only used after the struggle ensued. Mr Wang was also found to have exercised reasonable self-defence for one of the killings.
24 R v Taueki, above n 10, at [31](m).
The offending here in my view is much more serious in nature. A starting point should reflect that.
[38] Standing back and looking at the comparable cases it leaves me to conclude that the offending in this case is more serious than Wang v R and R v Kirk. However, it is less serious than that involving the premeditation of Jefferies-Smith and R v Christie, or the type of vigilante actions that were present in R v Pira. Nor was the fast escalation and extremely excessive reaction shown by R v Flavell present here. In my view, the appropriate starting point here is in the range of six to six and a half years’ imprisonment.
Cross-check with R v Taueki
[39] I turn now to do a cross-check with the bands of offending in Taueki. The use of a firearm and the serious injury leading to death are aggravating factors.
[40] The Crown suggests that extreme violence and premeditation are also present to a “low degree”. However, the incident was not prolonged, unprovoked or gratuitous, which was the way the Court of Appeal in Taueki described extreme violence.25 Serious violence is where there is impulsive behaviour or a reaction to unexpected events. That will generally be seen as less culpable than premeditated violence”.26
[41] The Crown disagrees. It says excessive self-defence was not present as Mr Te Rupe was unarmed, he did not pose a serious threat despite his apparent aggressiveness and anger, which were evidenced by his text messages. The Crown says these messages merely demonstrated his frustration at your relationship with Ms Tindall. Therefore, the Crown says the shooting was not self-defence whether excessive or reasonable.
[42] While Ms Killeen on your behalf accepts there is no excuse for your having a firearm, she says you had no intention of using it on Mr Te Rupe, but had it for
25 R v Taueki, above n 10.
26 At [31](b).
protection from a rival gang and there was only one way out of that house and that was the entrance through which Mr Te Rupe entered.
[43] Ms Killeen submits your gang involvement explained why you perceived the high threat. She also points to the fact that at the moment you are vulnerable to attack as you have little ability to flee due to your hip problems. She submits you are presently awaiting a bilateral hip replacement; you are in pain and use crutches, which I note you are using today. 27
[44] I accept, and it is according to the agreed summary of facts, based on the text messages that Mr Te Rupe was angry and the initial aggressor. It also notes methamphetamine was detected in his system. In my view here, excessive self- defence has lowered the seriousness of the offending in accordance with Taueki v R.
[45] The presence of the two aggravating factors and the mitigating factor of excessive self-defence places this offending in the lower end of band two, which has a range of five to 10 years’ imprisonment.28
Conclusions
[46] Standing back and in the round, based on a review of the relevant cases I conclude as I have said a starting point of six to six and a half years should be adopted. As I will conclude when I finally sentence you, six and a half years’ imprisonment is an appropriate starting point. This falls within the second band of Taueki, especially with the use of a weapon and the serious injury which caused Mr Te Rupe’s death. You did not assist Mr Te Rupe after the offending. The seriousness of the offending must be looked at as a whole alongside the excessive self-defence.
Personal Factors
[47]I now consider the personal factors that have been put before me.
27 See below at [70], regarding personal factors and the Cultural and Psychological Reports.
28 R v Taueki, above n 10, at [34] and [38].
Uplift for previous convictions
[48] You have an extensive list of previous convictions. They relate to a range of offending from assaults and burglaries to drugs and transport and firearms offences. You have been in and out of jail since you were 20 years of age. There was some concern expressed in the pre-sentence report that the nature of this offending might signal an escalation in offending. However, I have accepted this offence involved excessive self-defence. It is different in quality to your previous offending.29 Ms Pearson submitted on the basis that many of the convictions were quite old now, they may not have much weight in considering their effect on the sentence today. However she did point out the firearm offending. However, in this case, given the different nature and quality of this offence, the history of your offending gives me some insight into your life to date and in my view coloured your excessive reaction to the threat that that night led you to taking the life of your cousin. You must be held responsible for that tragedy but in the round I do not think an uplift from the starting point is appropriate here for previous convictions.
Cultural report
[49] I now turn to the matters raised in the cultural report. In Solicitor-General v Heta,30 Whata J noted that cultural issues in particular as they relate to systemic Māori deprivation where they can be linked to the offender and the offending should be taken into account in sentencing as they have a causative effect.31 Ms Pearson accepted in her submission some allowance needed to be factored in for your life experience and for the cultural factors that play here.
[50] According to the report writers, your upbringing was, for at least most of it, “undeniably terrible” and this background “has played a significant role in your history of offending”. In the reporters’ opinion, the following factors likely contributed to
29 Sentencing Act 2002, s 9(1)(j).
30 Solicitor-General v Heta [2018] NZHC 2453.
31 At [65]. Whata J observes that distinct and larger discounts tend to rely on robust evidence of intergenerational systemic deprivation that is causally connected to the offending. In absence of this, if reports are put before the Court that refer to the effects of colonisation on Māori communities, that can provide further justification for a cumulative discount that reflects a defendant’s diminished relative culpability.
your offending: your uprooting as a child and instability, the experience of violence during your youth, the loss of your mother, normalisation of problematic alcohol and drug abuse, intergenerational substance abuse, experience of sexual and other abuse, institutionalisation and gang membership.
[51] At one point, you were placed in Epuni Boys’ Homes where you were sexually abused by both staff and other boys. The report writers note that Epuni Boys’ Home was notorious for horrific abuses that occurred there. You were also physically abused in other boys’ homes and at 17 years of age, you were placed in Corrective Training.
[52] The report writer says there are a number of elements in your background “that have a direct link to [your] current offending”.
[53] The uprooting and instability in family and state care have had long-term negative effects on you. The experience of violence during your youth, both from your adoptive father and in state care, the abuse that you suffered in state homes; all of those are connected with increased aggression and likelihood of criminal activity. That has led to ongoing attempts to look for ways to deal with this background: poor management of emotions and extreme anger fits, which has in turn led to the exacerbation of offending.
[54] Your mother’s passing was part of your childhood trauma. Loss of a parent has negative effects such as issues with “trust, relationships, self-esteem, feelings of self-worth, loneliness and isolation and the ability to express feelings”.32
[55] The absence of a supportive family in your youth led you to seeking alternatives, which you found in gang membership. You left one gang because you considered they had excessive antisocial behaviour. But you have been with another gang for over 20 years. The report writers indicate that gang membership supplies those “fictive family relationships and a place to fit in”. Gangs substitute for family relationships and create some sort of “brotherhood”. The drivers that brought you here and to your gang membership include your family instability, failure at school,
32 The Cultural Report cited Jackie Ellis, Chris Dowrick and Mari Lloyd-Williams “The long-term impact of early parental death: lessons from a narrative study” (2013) J R Soc Med 57.
poverty, and poor employment prospects. For you, the abuse in state care according to the report writers were a very strong driver to where you are today.
[56] In addition, your family use drugs. You were introduced to cannabis at four years of age. The use of drugs seems to be intergenerational, and set the scene for the extreme likelihood that you would use drugs and you would “migrate from cannabis to methamphetamine”.
[57] The abuse you suffered had contributed to your substance abuse, and offending and anger issues. Counsel tells me you tried counselling, but reported being unable to manage the feelings that the sessions brought up. In the report writer’s opinion, you have not yet acknowledged the trauma, which has been a significant contributor to your behavioural issues, and that remains a severe burden for you.
[58] In general terms the cultural report, which is very detailed, addresses the fact that colonisation has played a role in the normalisation of problematic alcohol and drug use. The urban drift in the 1960s disrupted traditional ways of life, while colonisation more broadly, introduced alcoholic beverages, deprived people of land and access to natural resources. These gave rise to a risk of alcohol and drug abuse, which has been referred to in many cases.33 The Courts are becoming increasingly aware of the current and ongoing impact of colonisation and the effect on offenders, as a matter of “institutional knowledge”.34
[59] Colonisation, institutionalisation and substance abuse create a complex web of cause and effect.
33 R v Ngatai [2020] NZHC 2106 at [86]; citing Solicitor-General v Heta, above n 30, at [50]. See also Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 for discussion of the relevance of addiction to the sentencing process and moral culpability of the offender.
34 Benson v New Zealand Police [2020] NZHC 1946 at [23]; citing Moana Jackson He Whaipaanga Hou: The Māori and the Criminal Justice System: A New Perspective (Department of Justice, February 1987) at 40; and R v Royal [2020] NZHC 1321 at [35]; citing He Waka Roimata: Transforming Our Criminal Justice System (9 June 2019, Te Uepū Hāpai I te Ora Safe and Effective Justice Advisory Group). For the ongoing effect of colonisation, see Moana Jackson “Where to next? Decolonisation and the stories in the land” Imagining Decolonisation (Bridget Williams Books, Wellington, 2020) 55.
[60] The cultural report also notes substance abuse is a product of colonisation that is also prevalent in other settler-colonial states, affecting the indigenous populations. In your case, substance abuse has been a significant contributor to your offending.
[61] In addition, you have been institutionalised, put into corrective training and entered the prison system at 20. You felt that your early institutionalisation prepared you for gang membership. The report writers indicate that institutionalisation leads to “maladaptive behaviours”, which make it difficult for anyone to adapt to life outside prison and breaking the cycle of reoffending and imprisonment, which apparently is the case for you unfortunately, according to the report writers.
[62] As to rehabilitation prospects, the report says your sister is the only whānau you really have, but she supports you wholeheartedly.
Psychological Report
[63] The psychological report is rather a mirror of the matters raised in the cultural report. However it says that the offending occurred within “the context of attitudes supportive of putting your own needs before the rights and needs of others, impulsivity and negative peer influences”. It also reports that you do not have a mental disorder within the meaning of the Mental Health Act 1992.
[64] In fact, the report writer noted that you were pleasant, cooperative, and responsive to questions and forthcoming with information. Your thought processes were reported to be logical, coherent and no disturbances in perception. It also noted your hip problems were apparent and caused you significant pain and disability.
[65] The psychological report, as I have said, repeats much of what was in the cultural report but from a different focus. It refers to your unstable childhood, exposure to domestic violence and drug and alcohol use at home. That resulted in a pattern of persistent substance abuse and violence that led you to the Youth Justice system, exposing you to the abuse and physical trauma that you experienced there. You suppressed your thoughts and feeling with substance abuse. The report writer says that you now view this as justification for lack of concern for the rights and needs of others.
[66] It notes that you had disrupted and insecure attachments to primary caregivers, negative reactions from teachers, and developed an anti-authority attitude. Drugs and alcohol are your primary coping mechanisms. The report writer says:
[Your] anger toward the perpetrators who sexually assaulted [you], and the lack of accountability for their behaviour has led [you] to feeling a sense of injustice and as a result [you] do not respond to any attempts by authority or the criminal justice system to hold [you] accountable for [your] behaviour.
[67] You have not engaged in any trauma focused intervention or counselling. It is unclear what your response would be. However you said you are willing to consider such treatment. Your entrenched antisocial attitudes are “unlikely to shift”, according to the report. So any intervention will need to be very intensive in nature.
[68] The report writer does recommend further treatment to address the offence- based needs, and further psychological intervention into your sexual abuse trauma and mood management difficulties, as well as a referral to alcohol and drug treatment providers. As I said, you started smoking cannabis at four, and continue to smoke regularly and have no intention of giving this up. You do not see how it affects you. You take drugs as you “like it” and you will never change.
[69] However, you recounted that you were “stone dead sober” during the offending and you did not wake up deliberately to shoot the victim. When the victim was outside kicking the door, you thought it was the sound of gun shots and thought “who is shooting as us?”. It is reported that you took your gun with the intention of defending yourself and denied any intention to kill the victim.
[70] You have never held a gun licence but have had possession of guns, it seems, for some time due to the threat of other gang members in the Foxton area. You told the report writer you carry a knife with you when you go out, as your deterioration in physical health over the last decade, which now requires a double-hip replacement, makes you feel vulnerable as a target to other gang members.
[71] You acknowledge you have been institutionalised; if you choose to break the law, you know the consequences and, having spent time in boys’ homes, you were not and are not afraid of going to prison. Your attitude is you will do what you want, “it
is what it is”, you say. In fact, in prison it is a place where you do not have to watch your back.
[72] You also made some comments to the report writer that the social welfare system treated young males like you as a “business”. You had a “light bulb” moment 10 years ago, realising you had been “groomed” for a lifetime of prison by the abuse. It took you 15 years to talk about this abuse. You told the report writer had the abuse not occurred, you “would likely have made different choices”.
Letter from Mr MacDonald
[73] Mr MacDonald, I have also had a letter put before me that you wrote to the Court, which I am going to read:
I, Tim MacDonald, would like to say my cousin and I and other family members were brought up together as brothers and sisters. I deeply regret what has happened and do not know what else I can say to my family to let them know just how sorry I am. I miss my cousin and always will, now I have to live with this and try to find a way to deal with it but to be honest I don’t think I will ever get over this on the outside I might look OK and fine but on the inside I am pretty messed up I do not ever want to be in this position again. I don’t know what else I can do or say other than I am deeply sorry to all my family.
Letter from Mr MacDonald’s sister
[74] Your sister, who you refer to really as your only whānau, notes that you and her were adopted together. You lived in Hawkes Bay, before moving to Foxton to follow your adoptive parents as they changed jobs. When your parents worked, your grandparents would look after you, with your cousins including Mr Te Rupe. She described it as a “great upbringing. We were brought up together as brothers and sisters”. You then were both taken back to Hawkes Bay due to your parents’ work, your mother became ill and passed away. Your grandparents helped but they moved back to Foxton and due to a lack of support from your father, you and your sister were separated. You were put in foster care and boys’ homes. You only reunited with your sister when you were old enough to leave the homes. Since then, you have both supported each other. Your sister says both your hearts continue to ache for the Te Rupe whānau.
Analysis of personal factors
[75] I now turn to consider those personal factors that I have recounted. I accept that colonisation has and continues to affect your life and that of your whānau.35 Contributing factors to the offending, according to the cultural report, include your uprooting as a child, instability, experience of violence, loss of a parent, normalisation of alcohol and drug use, intergenerational substance abuse, abuse in institutions, institutionalisation, and gang membership. As I noted, these findings are reported with a different focus on the psychological report. It notes how your anti-social and anti- authority attitudes were formed from your childhood and your time in boys’ homes.
[76] These factors are all relevant and can be linked as required in the case of Solicitor-General v Heta. There are differences here to the Heta case, for instance in that case Ms Heta had made “significant strides” toward rehabilitation and had strong whānau support.36 However, there are some similarities, including alcohol abuse and in your case, drug abuse as a learned behaviour which was a key contributor to the offending and to your past offending. As Whata J noted, while alcohol consumption is not a mitigating factor, reference to alcohol abuse as an environmental factor impaired Ms Heta’s life choices generally and indirectly bore on her moral culpability.37 This logic applies to a certain extent here and extends also to the abuse you suffered by those who were meant to raise and protect you: your father and carers at the boys’ homes.
[77] The linkages here as I have said are clear – deprivation that in turn led you to be taken from your family and put in state care where you were abused meant you were not nurtured as you deserved. You were neglected by social services and institutionalised leading to gang membership and the belief that you needed to protect yourself because no one else would. The cultural report points to the difficulties that you now will face in leaving gang life and the cycle of reoffending.
35 See above at [58] and fn 34.
36 Solicitor-General v Heta, above n 30, at [64].
37 At fn 46.
[78] In Solicitor-General v Heta, Whata J held that a 40 percent discount for personal mitigating factors was not excessive. There, 30 per cent for matters in the cultural report and 10 per cent for participation in restorative justice.38
[79] Here you were not able to participate in restorative justice, although you indicated you were willing. I refer to that below.
[80] When comparing Solicitor-General v Heta, and taking into account the reports I have before me, as well as your willingness to be involved in restorative justice, in my view a global discount in the region of 25 per cent is appropriate.
Remorse
[81] In relation to remorse, the Supreme Court has held that separate discounts are available for both remorse and a guilty plea.39 A discount for remorse is to recognise genuine remorse ascertained by a “proper and robust evaluation of all the circumstances”.40
[82] You have certainly expressed regret and a degree of personal remorse in your letter to the Court. Your heartbrokenness at the loss of your cousin and what you have done to the whānau is mentioned by your sister. The report writers thought that a restorative justice process would be valuable but you understand why the whānau do not want that.
[83] On this basis, I do not think there is a robust basis for a separate discount for remorse. I have no doubt you harbour regret for what happened but cannot find the tangible sign of remorse beyond your letter. I do note however your willingness to engage in restorative justice. I have taken your willingness into account as part of the global discount that I have already indicated.
38 At [67].
39 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
40 At [64].
Guilty Plea
[84] I also consider the maximum discount that is available generally for a guilty plea of 25 percent is appropriate and the Crown has acknowledged that in this case that would be an appropriate discount for the early plea.41
Conclusions on personal factors
Mr MacDonald, I must hold you to account for your actions. You made choices on the day of that offending which have had terrible repercussions. It has caused harm to Mr Te Rupe’s whānau, who are your own whānau, and your community. However, as you have heard, I have carefully considered the linkages raised in the cultural reports and I accept that they are directly related to your offending. That is why I concluded global discount of 25 per cent for all personal factors including remorse and cultural issues together with a further guilty plea discount of 25 per cent are appropriate in this case.
Minimum period of imprisonment
[85] I must also now consider a minimum period of imprisonment (MPI). An MPI can be ordered for a longer period than one-third of the length of the sentence but not exceed two-thirds of the full term (if the full term is a sentence of imprisonment of more than two years).42 MPIs should not be imposed as a matter of routine nor in any mechanistic way.43 MPIs are imposed if the one-third default minimum is insufficient to hold the offender to account for the harm done, to denounce the conduct, to deter the offender or others, or protect the community.44 The central consideration here is your level of culpability, that includes whether there was any unusual callousness, extreme violence, vulnerability or multiple victims and serious actual or intended consequences.45
41 Sentencing Act 2002, s 9(2)(b); and Hessell v R [2010] NZSC 135.
42 Parole Act 2002, ss 84 and 86(4)(a); and Sentencing Act 2002, s 86.
43 Zhang v R, above n 33, at [10](n) and [169].
44 Sentencing Act 2002, s 86(2).
45 R v Brown [2002] 3 NZLR 670 (CA) at [32].
[86] Personal mitigating factors that often weigh against imposing an MPI include remorse, low risk of reoffending, likely response to rehabilitation and lack of previous convictions.46 None of those apply here.
[87] Ms Killeen submitted that no MPI beyond the default one-third is required to meet the purposes of s 86(2) of the Sentencing Act and I accept that submission.
[88] Given my conclusion that the seriousness of the offending was tempered by the excessive self-defence and personal factors discussed above, ordering an MPI beyond the default one-third of the sentence is not warranted in those circumstances and I do not do so.
Result
[89] Mr MacDonald, I now turn to the result. I have taken a six and a half year starting point (which is 72 months’ imprisonment),47 applied a 25 per cent global discount for personal factors and a 25 per cent discount for the guilty plea. That puts the sentence in the vicinity of 37 months’ imprisonment. I therefore impose a term of imprisonment of 37 months on you on the charge of manslaughter.
[90]Order for destruction of the gun and ammunition.
[91] With your consent indicated, I direct that the s 27 and s 38 reports should be made available for assessment and treatment purposes to the Department of Corrections and the Parole Board.
Grice J
Solicitors:
Crown Solicitor, Palmerston North.
Esmé Killeen – Barrister & Solicitor, Palmerston North.
46 Shaw v R [2016] NZCA 110; Fleming v R [2011] NZCA 646 at [22]; and B v R [2019] NZCA 18.
47 Error correction: The figure in the oral judgment was 72 months it should have been 78 months The error does not alter the final sentence.
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