R v Madams
[2017] NZHC 81
•3 February 2017
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF DEFENDANTS T AND L PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011.
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESS AT [69] PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
CRI 2015-283-57 [2017] NZHC 81
THE QUEEN
v
TYRONE PETER MADAMS KEVIN ROY MADAMS MATHEW THOMAS MADAMS L
Date: 3 February 2017 Appearances:
H Mallalieu for the Crown
P Brosnahan for Tyrone Madams
P Surridge for Kevin Madams
L Scott for Mathew Madams
R Crowley for LSentencing:
3 February 2017
SENTENCING NOTES OF MALLON J
Introduction
[1] There is quite a lot I need to cover this afternoon. Therefore each of the defendants are to remain seated. You will stand when I formally pass sentence on
you.
R v MADAMS [2017] NZHC 81 [3 February 2017]
[2] Before I start I remind the courtroom that there are suppression orders in place in relation to [L], who is here for sentencing, and a further member of the wider family who was discharged during the trial before me. The suppression is of their names and ages and their precise relationship to the other defendants. It can be reported that they were members of the wider Madams family. Those suppression orders are to continue.
[3] Tyrone Peter Madams, Kevin Madams, Mathew Madams and [L] you each appear today for sentencing for your involvement in the events that led to the death of Craig Rippon. He was killed on a Sunday afternoon in a violent confrontation on his property, outside his house, where he lived with his wife and extended family.
[4] None of you were the principal offender. The principal offender was Tyrone William Madams. He inflicted the fatal blows to Mr Rippon. He accepted this from the beginning and entered an early guilty plea to the charge of murder. He was sentenced in June to life imprisonment with a minimum non-parole period of 12 years.1 The starting point for that minimum non-parole period was 14 years but was reduced to 12 years for his demonstrable remorse [and his guilty plea].
[5] Tyrone Peter, Kevin and [L], you were each charged with murder as a principal or party. Mathew, you were charged with murder as a party only. You were also all charged with participation in a criminal group. You each pleaded not guilty to the charges and the matter proceeded to a jury trial before me in November last year.
[6] Part way through the trial [L] and Mathew pleaded guilty to manslaughter on a s 66(2) basis. The trial continued against Tyrone Peter and Kevin, but in light of the evidence the murder charges were put to the jury on a party only basis. The jury returned guilty verdicts [of manslaughter] for Tyrone Peter and murder for Kevin and you were both found guilty of participation in a criminal group. Convictions were
entered accordingly.
1 R v Madams [2016] NZHC 1322, Clark J.
[7] Another young member of your wider family, who I will refer to as T, was also charged with murder and participation in a criminal group. He was discharged during the trial.
Circumstances of offending
[8] There was a long and close association between the Rippon and Madams families and there were also links between the two families through their association with the Black Power gang.
[9] The catalyst for the events that led to the violent killing of Mr Rippon was the return of a lost puppy. The puppy had escaped from its owner’s residence and the owner asked Mr Rippon to assist in its return. [L] and T had found the puppy and were looking after it at Tyrone Peter’s address. Mr Rippon went to this address and, with the consent of [T and L], returned the puppy to its owner. [T and L] later visited the owner at her home and gave her dog food that they had purchased for the puppy.
[10] At around 4pm on Sunday 8 November 2015 Tyrone Peter was at home with his brother, Kevin. Mathew, [L] and T were also there. Tyrone Peter and Kevin had been drinking alcohol. Tyrone Peter, an alcoholic, was heavily intoxicated. Tyrone Peter and Kevin were unhappy about Mr Rippon’s actions in retrieving the puppy and erroneously believed he had received a reward for its return. They decided to confront Mr Rippon about it.
[11] Mathew drove the group to Mr Rippon’s home. Kevin went into the house and asked Mr Rippon to come outside. Mr Rippon’s son, Billie, joined the group outside in the right of way beside the house where the Madams car was parked. A heated exchange about the puppy took place in the course of which Tyrone Peter was knocked to the ground, possibly by Billie. He sustained an injury to his eye, causing blood loss, and he also lost consciousness for a short period of time. There was evidence that one of the younger Madams, [L] or T, had a bar with him at this time. There was also evidence that one of [L or T] was upset that Tyrone Peter had been injured.
[12] The level of Tyrone Peter’s intoxication and/or concussion was such that he needed help to get back into the car. The Madams group left, with the Rippons believing they were taking Tyrone Peter to the hospital to receive medical assistance. Instead they drove to another address where they picked up Tyrone William (who is one of Tyrone Peter’s sons). The group, which now included Tyrone William, returned to the Rippon address. Mathew was the driver. Kevin was in the front passenger seat. Tyrone William, Tyrone Peter, [L] and T were in the back seat. In the vehicle they had a number of weapons: crowbars, a metal bar and a metal pole.
[13] They arrived at the Rippon house at around 5.15 pm. The car was parked on the opposite side of the road of the Rippon house. Tyrone William, [L] and T ran from the car, each carrying one of the weapons. [L] and T were wearing clothing with Black Power insignia. T was wearing a bandana to conceal his face. Tyrone Peter and Kevin also left the parked car and went over to the house. A contested issue at trial was whether they entered the property and were directly involved in inflicting any violence. It was not in dispute that Mathew Madams did not enter the property and that he remained in or near the car throughout.
[14] As the first three went on to the property, [L] or T was hitting the fence with his weapon and yelling. The front gate was kicked open and Tyrone William advanced to the outside sun-porch door. He smashed the glass in this door with the steel bar he was holding. He then entered the front portion of the house and smashed a glass section in the front door. T went around the side of the house where he smashed a window with a steel bar. Even these events would have been frightening for those inside the house. However matters were to get worse.
[15] Mr Rippon, who was inside with his family, realised there was an attack on his house. He went out the back door and walked along the side of the house towards the front, arming himself with a spade that had been left in the garden next to the house. He struck Tyrone William with the spade, but he was then disarmed. He was held against the front wall of the house and struck in the head a number of times with a steel bar. He was wounded and fell to the ground.
[16] Tyrone William was responsible for delivering one or more blows with the steel bar he was initially swinging. [L] also delivered one of the blows. It was an issue at trial as to whether Tyrone Peter inflicted any of the blows. None of the witnesses saw Kevin inflicting any of the blows.2 Tyrone William had Mr Rippon’s spade and delivered at least one further full force blow with the spade to Mr Rippon’s head. He was lying on the ground at this time.
[17] The pathologist was unable to say how many blows were struck but the injuries were consistent with impacts at four separate points.3
[18] Other members of the Rippon family came out of the house during the attack on Mr Rippon. Those who came out of the house were confronted by a line, described by some witnesses as a semi circle or V shaped formation, of [the Madams group] brandishing weapons. Kate Rippon, Craig’s wife, who like the other Rippons knew Tyrone Peter and the others very well, yelled at Tyrone Peter “what are you doing?”. The [Madams group] retreated. As they left Tyrone Peter said he hoped Craig Rippon would be alright, or words to that effect. This whole incident took just over four minutes.
[19] As they were leaving a neighbour on the side of the road where the car was parked yelled at the group. [L] challenged the neighbour to a fight but then dropped his weapon. Kevin advanced towards the neighbour holding a crowbar. T told Kevin to get in the car because the police would be coming.
[20] The group then departed in the vehicle again driven by Mathew Madams. They drove to Kevin’s house where they were apprehended a short time later by the police. At this time another occupant of the house was attending to Tyrone William’s wound to his hand or lower arm, which was bleeding profusely, from where he had been struck by the spade. Tyrone Peter was also inside with his bloodied eye wound.
Kevin, [L] and T were at the front gate. I accept the police officers’ evidence that
2 This led to the Crown accepting that there was no evidence on which Kevin could be convicted as a principal.
3 There was no dispute that Tyrone William had inflicted the final blow to the head with the spade and the pathologist did not specifically identify any of the blows which preceded that one as being causative of Mr Rippon’s death. This ultimately led to the murder charge against Tyrone Peter being put to the jury on a s 66(2) basis only.
Kevin told the police that “we smashed them” or “we smashed the pres” (referring to Mr Rippon as the president of a chapter of the Black Power gang) or words to that effect.
[21] As the Crown described it, this was a planned attack seeking revenge for the earlier incident. The participants were armed with weapons and they picked up Tyrone William to bolster their numbers and add real strength to the planned attack. It is not appropriately characterised as “gang warfare” in the usual sense. Members of the families were associated with the gang but that was background only. This was a violent confrontation amongst family members and friends.
[22] Mr Rippon received extensive head injuries and died a short time later at
Whanganui Hospital. He was 57 years old.
Victim impact reports
[23] There are a number of victim impact statements before me which I have read. They include statements from Mr Rippon’s sister, Mr Rippon’s wife, two of his young granddaughters, the youngest one who witnessed the violence, and other members of the Rippon family and wider network. I cannot do justice to the grief and loss they describe and the impact Mr Rippon’s violent killing has had on them.
[24] As is inevitably the case, the trial was a gruelling process for them which they found bewildering to say the least. No sentence I pass can do anything to assuage their grief and loss and it is not the purpose of sentencing that it do so. I endorse wholeheartedly what the Crown said at the outset of their submissions this morning, including your silent dignity throughout this trial and the way those of you who had to give evidence at the trial did so in such difficult circumstances.
[25] It is clear that Mr Rippon was a much loved and respected man who had worked hard in his later years to improve the community in which he lived. He and his wife Kate made the Rippon family home open to all his wider family where they were much loved. It is a terrible part of this awful event that he was killed on that property in front of members of that family and on a day when the family had had a celebratory barbecue for one of their family members.
[L]
[26] I am going to start with you, [L]. You are to be sentenced for your conviction for manslaughter.4
[27] The part you played in the offending is not in dispute in essence. You were a participant in the plan to return to the Rippon property with Tyrone William to assault Mr Rippon or Billie using the weapons in the vehicle. The Crown submitted that your group had tooled up with these weapons in between the two visits to the Rippon property that afternoon. That submission was largely based on opportunity. In my view there is insufficient evidence to safely draw this conclusion and in any event I do not regard it as especially material to your culpability. I consider you all knew there were weapons available in the car when you returned to the Rippon house and you intended to be part of the plan that carried out the assault with weapons on Mr Rippon and/or Billie.
[28] In written submissions your counsel contended that you were not carrying a weapon at the time you advanced on the property. I do not accept that submission on all the evidence which I heard. The witnesses consistently gave evidence that all of you had weapons and the evidence of the neighbour who you confronted was not consistent with you having the spade as the only weapon used by you. I acknowledge the submission from your counsel that the weapon you took on to the property was not the one you used to hit Mr Rippon. That appears to have been the spade once it was dislodged from Mr Rippon. I also acknowledge the submission that when you inflicted the blow on Mr Rippon you were doing so out of a sense of loyalty to [the Madams group].
Starting point
[29] The aggravating features of your role in the offending are therefore that you joined the plan to carry out a group assault on Mr Rippon using weapons; you went on to Mr Rippon’s family property as part of the group assault; you had a weapon;
and you inflicted one of the blows.
4 Crimes Act 1961, ss 66(2), 158, 160(2)(a) and 171 (maximum penalty life imprisonment).
[30] The Crown’s acceptance of a plea to manslaughter was an acknowledgement that you did not foresee the murder of someone as a probable consequence of the planned group attack.
Personal circumstances
[31] You were [age suppressed] at the time of the offending. You are now [age suppressed].
[32] The pre-sentence report writer describes you as speaking with high regard for [Tyrone Peter]. You described him as a “good man” and “protective” and influential. You were proud about his status as a president of a criminal gang. You said you felt excited prior to the assault and wanted to prove yourself to [Tyrone Peter]. You wanted to see what it was like being in a gang and you dressed yourself in gang attire. However you also became scared with the repeated force which Tyrone William used on Mr Rippon. The report writer says you briefly stated to her that you felt remorse.
[33] You had no previous offending. Once your parents separated you lived for a short period with your mother. You had trouble maintaining her rules and you ended up, much to her upset, leaving school and living with [Tyrone Peter].
[34] Since your arrest you have been in custody at a Youth Justice Residence. At the time of your remand into custody you presented as angry, upset and confused. You have since had time to reflect and are reported to have made commendable progress in your education and as a person. You have achieved NCEA level 1, hold a low level scaffolding certificate, a barista certificate and a forklift licence. You participate in all sports offered and have learned to play the guitar, among other things.
[35] You have the loving support of your mother who is prepared to do what it takes to successfully reintegrate you back into the community. You also have the support of other siblings who are law-abiding people.
[36] This morning I received a four page letter from you describing how you now feel about the events with which you involved yourself and the thought processes that you had and which you no longer adhere to. I note, amongst other things, you state that you truly regret what had happened and, if you could, you would go back and fix everything up. You describe the background to why you liked being with [Tyrone Peter][reasons suppressed] and you enjoyed spending time with him. You acknowledge that you became influenced by him and others involved in gangs and thought that was something that you might aspire to. These events and the time and assistance you have received in custody you describe having changed what you want or realising that what you thought you wanted, wasn’t really what you wanted at all. You also describe that your mother is the person who was really looking after you and will be trying to assist you and keep you safe. You are grateful for the opportunities you have had to improve your situation whilst you have been in residence. You would like to make things right but realise that you cannot do so and you hope to make sure your future remains in a positive direction when you are released. There is nothing in your letter that seeks to minimise your involvement and the manner in which you have fully expressed yourself is consistent with the progress that you have made and your acknowledgement of responsibility and need to change.
Starting point
[37] There is no tariff or guideline judgment for manslaughter because the circumstances can vary so widely. The Crown submits that the appropriate starting point is 10 years imprisonment. That is the same starting point it proposes for Tyrone [Peter]. Your counsel submits that I should take a starting point of seven years imprisonment. The Crown and your counsel have referred me to various cases in support of their submission.5
[38] I consider the cases that are most helpful are those involving a group attack where a person is killed and the Court has had to consider the relative culpability of
the party offenders. Those cases suggest a range of up to eight years for non-
5 Especially P (CA479/2015) v R [2016] NZCA 128; R v McNaughton [2012] NZHC 815; and R v
Brider HC Wellington CRI-2004-241-116, 3 September 2009.
physical participants and those whose physical involvement in the attack are minor,6 lower starting points are available for those whose physical involvement in the attack are minor and can be considerably lower for those with peripheral roles.7
[39] You were a physical participant in that you struck one blow. However this occurred after Mr Rippon was coming towards members of your group with the spade and there is nothing in the evidence to suggest that this blow was particularly significant. Tyrone William, the much larger, stronger, more violent and older member of the initial group on the property, thereafter inflicted multiple forceful blows ultimately causing Mr Rippon’s death. In those circumstances your role was rather peripheral to that of Tyrone William.
[40] I therefore accept your counsel’s submission that a starting point of seven years is appropriate for you. I have cross-checked that against what I call the aggravating features and bands, [in light] of your involvement, as set in the case of Taueki and I consider that that seven year starting point remains appropriate on that basis.8
Personal aggravating factors
[41] There are no personal factors that warrant any uplift to the starting point.
Personal mitigating factors
[42] There are some personal mitigating factors that warrant discounts. It is long established now by appellate authority that youth can be a substantial mitigating factor. That reflects impulsivity, the lack of ability to think through the consequences of actions, and the crushing impact prison can have on a young person and their prospects of rehabilitation. I have no doubt in your case that youth is a substantial mitigating factor. Your involvement in the offending was very much a result of your immaturity and a resulting warped view of gang life and wanting to prove yourself to [Tyrone Peter]. I have no doubt that the seriousness of what
unfolded frightened you and that this was a real wakeup call to you.
6 R v Brider above n 5.
7 Especially R v McNaughton above n 5.
8 R v Taueki [2005] 3 NZLR 372 (CA) (band two (five to 10 years)).
[43] You have shown that you can rehabilitate by taking every opportunity made available to you while you have been in custody. I have no doubt you are remorseful for the part you played and your limited expression of that to the pre-sentence report writer is likely to be because of your age and immaturity. The letter you have written to which I have referred is an indication of your real remorse and acceptance of responsibility and the progress that you are making.
[44] The Crown submits a total discount of 50 per cent is appropriate for both your youth and your offer to plead guilty to a charge of manslaughter soon after the charges were brought against you. Your counsel submits I should allow a discount of
50 per cent for youth, your previous good character and positive steps towards rehabilitation, and a further 25 per cent for your guilty plea.
[45] I agree that these discounts submitted by your counsel are appropriate. Your very young age at the time, the influence of [Tyrone Peter], and your positive rehabilitative steps might have led me to consider a sentence of intensive supervision notwithstanding the seriousness of your actions. However it was not necessary for
me to have considered this in any detail for reasons which I will come to.9 You are
to be commended for your positive progress and not discouraged from continuing with it. On that basis, this means an end sentence of two years and seven months imprisonment.
Minimum period of imprisonment
[46] No minimum period of imprisonment is sought and it is not warranted.
[47] Because you have spent 15 months in custody at the youth unit you will now be eligible for parole. Whether and when you are released by the Parole Board is a matter for them but it is the ideal setting for appropriate conditions of release to be imposed to seek to ensure the positive steps you have taken are continued and that you do not return to the bad influences and your ways and warped and immature
thinking which led to your involvement in the violent killing of a close family friend.
9 Refer to [47]
Sentence
[48] Therefore, [L] please stand while I formally pass sentence on you for manslaughter to two years and seven months imprisonment. Be seated.
Mathew Thomas Madams
[49] Mathew, I now turn to you.10
Your role
[50] There is no dispute about your role in the offending. You were the driver on the first trip to the Rippon house, on the trip to pick up Tyrone William and on the return trip to the Rippon house and when the group fled from that address having killed Mr Rippon.
[51] You did not involve yourself in the heated exchange on the first trip. You stood by the car. On the second trip you stood close by the parked car and were described by neighbours as being anxious, upset and apologetic. You were not involved in the amped up behaviour after the assault described by those attending the address to which the group fled, or by the ambulance staff who transported Tyrone William and Tyrone Peter to the hospital. The Crown accepts you drove the vehicle under the instructions of [Tyrone Peter] and/or [Kevin]. You were the reluctant driver acting under those instructions. Your culpability arose from involving yourself in a situation which you knew would involve violence with weapons on Mr Rippon or Billie Rippon. Before your arrest you wrote in your diary expressing upset and remorse at what had happened.
Personal circumstances
[52] You are 37 years old. You have a relatively limited criminal history. It is mostly for cannabis. You have no convictions for violence except an historic offence for fighting in a public place (1998) and for disorderly behaviour likely to cause
violence (2002). Prior to the present matter your last offence was four years earlier.
10 Manslaughter: Crimes Act 1961, ss 66(2), 158, 160(2)(a) and 171 (maximum penalty life imprisonment).
You have a history of psychosis dating back to 2003. You have been diagnosed with schizophrenia, from which you still suffer and for which you take daily medication.
[53] Your pre-sentence report notes that you are a low risk of reoffending, but a high risk of harm if you do offend based on your tendency to be manipulated by others and willingness to participate in anti-social undertakings. You accept you were wrong to be involved in the offending. You acknowledge the seriousness and finality of your actions and have expressed repentance for your actions and for the family of the deceased.
[54] You were assessed by Dr Barry-Walsh, a forensic psychiatrist, in preparation for your trial. He describes your diagnosis of schizophrenia. You have been very unwell since 2003. You have hallucinations and delusions and, as I have said, take medication. He says this has significantly impacted on your functioning socially and psychologically. This has led to you being unemployed when, before your diagnosis, you had a history of employment, and with a limited ability to maintain independence. Your father has looked after you since 2006. As a result of this the psychiatrist has said you have a strong sense of loyalty to your father and you love him. This is also the view of your regular treating physician. You explained to the psychiatrist, and this was consistent with the evidence at trial, that you had always driven your father around since he lost his driver’s licence. You always did what your father asked you to do.
Starting point
[55] The Crown submits a starting point of eight years imprisonment is appropriate for you. The defence submits the Crown has overstated your culpability. It submits that your role was limited to being the reluctant driver and that a starting point of three to four years imprisonment is appropriate.
[56] Given your role in the offending I consider it is appropriate to assess the starting point with reference to comparable cases as counsel have done. I agree with your counsel that the main case relied on by the Crown is different and a lower
starting point than eight years is appropriate.11 I agree with your counsel on the basis of the cases she refers to that it is also less than six years.12 The cases, which I shall footnote, suggest a range of between three and five years.13 I consider four years to be the appropriate starting point bearing in mind your knowledge of the
weapons in contrast with the case which counsel referred to which is at the bottom of the range.14
Personal aggravating factors
[57] There is nothing in your personal history which warrants any uplift to the starting point.
Personal mitigating factors
[58] The Crown submits a discount of 12.5 per cent would be appropriate in light of your personal issues. Your counsel submits a discount of 15 per cent is appropriate in light of your mental health and prospects of rehabilitation, with a further 10 per cent for your remorse. This is a discount of 25 per cent.
[59] I consider a 25 per cent discount is appropriate. Your illness and limited ability to live independently made you somewhat dependant on your father and loyal to him. As you described it, he had a hold over you. Your reluctance and anxiousness at the time of the offence, your immediate and ongoing remorse are consistent with this and the expert medical evidence also supports this.
[60] This would reduce your sentence but there is also a further discount needed to take account of your guilty plea. The Crown and your counsel agree a discount of
20 per cent is appropriate because you offered to plead guilty to manslaughter several months out from the trial. I agree that discount is appropriate.
[61] That reduces your sentence 28 months imprisonment. That is a sentence of two years and four months imprisonment.
11 R v Brider above n 5.
12 Raifee v R [2010] NZCA 180.
13 R v Ahsin [2015] NZHC 1884, R v Innes [2016] NZHC 1195, and R v McNaughton above n 5.
14 Mr Perry in R v McNaughton above n 5.
Minimum period of imprisonment
[62] The Crown does not seek a minimum period of imprisonment and I agree it is not required. You have spent 15 months in custody since your arrest which is relevant to your eligibility for parole.
Sentence
[63] Mathew Madams, please stand. In summary, for your conviction for manslaughter you are sentenced to two years and four months imprisonment.
First strike warning
[64] Because of your conviction I am also required to give you a first strike warning as to the consequences if you are convicted of any serious violent offence committed after this warning. If you are convicted of any serious violent offence, except murder, committed after you receive the first warning, you will receive a final warning. In addition, if the Judge imposes a sentence of imprisonment for that offence, other than life imprisonment for manslaughter or preventive detention, then you will serve that sentence without parole or early release. If you are convicted of murder committed after you receive the first warning, you will be sentenced to imprisonment for life. You must then serve the life sentence without parole unless it would be manifestly unjust to do so. If you receive a life sentence without parole you will not be released from prison unless serving the sentence without parole would be manifestly unjust. The Judge must then specify a minimum term of imprisonment you will serve. You will receive a written document outlining the first strike warning which I have just given to you. Be seated.
Tyrone Peter Madams
[65] I now turn to you Tyrone Peter Madams. You are to be sentenced for manslaughter on a party s 66(2) basis15 and participation in an organised criminal
group.16
15 Crimes Act 1961, ss 171, 177 and 66(2) (maximum penalty life imprisonment).
16 Section 98A(1) (maximum penalty 10 years imprisonment).
Role in offending
[66] There is some dispute as to the level of your involvement in the killing of Mr Rippon and therefore the basis on which the jury found you guilty of manslaughter. It is for the Crown to prove beyond reasonable doubt the existence of any disputed aggravating factors.17
[67] There is also a dispute about whether your group armed itself with weapons during the return trip to the Rippon house. As I have mentioned earlier I do not see this as material to your culpability. You knew the weapons were in the car and you were part of the plan to use them in the assault on Mr Rippon and/or Billie Rippon on the return trip.
[68] Your counsel submits that the verdicts are consistent with you [not] having gone on to the property and that you did not appreciate there would be an assault that would cause the killing of someone with murderous intent. This was your defence to the murder charge at trial.
[69] I do not accept that you did not go on to the property. My assessment of the evidence is that you were on the property with a weapon but this was after the initial assault on Craig Rippon was carried out by, principally, Tyrone William. This is consistent with the evidence from members of the Rippon family who saw you on the property. I do not consider Kate Rippon, whose evidence about this was consistent with other evidence, to be mistaken or untruthful in her evidence that she saw you on her property shortly after the attack and yelled at you and that the group retreated. On the evidence I cannot be sure that you inflicted any blows on Mr Rippon. I sentence you on the basis that you did not. I consider it is reasonably possible that [name suppressed] or Natasha Kuru were mistaken in their evidence on this particular aspect. Other evidence was consistent with the person they saw as in fact being Tyrone William (whose appearance has some similarities to Tyrone Peter) when Tyrone William was inflicting the fatal blows. There was no forensic evidence
supporting your involvement in inflicting any of the blows. You were highly
17 Sentencing Act 2002, s 24(2)(c).
intoxicated and only a short time earlier had needed substantial assistance to get into the car.
[70] Therefore I am sentencing you on the basis that you were not one of the three that initially went on to the property, but that you came over with a weapon once the altercation was underway but that you did not inflict any blows. The jury’s verdict is consistent with you being involved in the decision to return to the property after the initial altercation. I consider your role within the [wider Madams family] and your status and influence over others in the car, and your upset over your injury and the puppy incident, all support you being the instigator of that decision. Your manslaughter verdict is explicable on the basis that the jury accepted the level of your intoxication and any ongoing effects of concussion meant you did not foresee murder as a probable consequence. That was consistent not only with your observed state at the first incident, but also your actions and comments after the event when you were under arrest and when you were in hospital.
Personal circumstances
[71] You are 58 years old. You have a lengthy history of offending beginning in the youth court in 1973. There have been a number of substantial gaps in your offending, including a gap of at least three years prior to the present matter. You have a number of historic convictions for what appear to be low level assaults, the last one being in 1995 and before that in 1990. Your most recent convictions are for cannabis and before that most of your list is mostly for alcohol and driving and cannabis offending. This reflects your lifestyle which has been dominated by alcohol and drugs.
[72] You acknowledge that you had a part to play in Mr Rippon’s death but you said to the pre-sentence report writer that you do not feel responsible. Mr Rippon was a very good friend for 40 odd years and you wish the day never happened. You consider you took, to use your words, “your eye and mind off the situation”. Your expression of remorse is considered by the pre-sentence report writer to be genuine.
[73] You are considered to be a moderate risk of reoffending.
Starting point
[74] The Crown submits the starting point for you offending should be between 10 to 12 years. Your counsel submits it should be between seven to eight years imprisonment.
[75] I agree with your counsel that in light of the basis for your liability your starting point is best assessed with reference to comparative cases. Your offending can be distinguished from the gang warfare cases relied on by the Crown18 which indicates that your sentence should be less than the 10 years imprisonment. That is indicated by those cases. Your role as instigator and your influence over the others was pivotal however in the events that unfolded. I consider this takes you slightly above the cases relied on by your counsel as indicating a starting point of seven to eight years starting point.19
[76] I therefore consider the starting point should be nine years imprisonment.
Personal aggravating factors
[77] No uplift is sought in respect of any personal aggravating factors and I agree that that is not necessary.
Personal mitigating factors
[78] In terms of mitigating factors there are two matters. First is your remorse and second is your very early offer of a guilty plea to a murder charge on a party only basis. That offer was rejected but it follows from that offer that, had you been offered a plea to a charge of manslaughter, it would have been entered immediately. Bearing in mind the allowance for remorse that was allowed by the sentencing Judge in respect of Tyrone William Madams, and taking into account your guilty plea, I consider that there should be a 35 per cent, so 10 per cent plus [25] per cent reduction from your starting point. That gives rise to a sentence of, in round terms,
to five years and 10 months imprisonment.
18 R v Taoho HC Rotorua CRI-2009-263-163, 12 December 2011, and R v Challis [2008] NZCA
470.
19 R v Brider above n 5; and R v Jamieson [2009] NZCA 555.
[79] A minimum period of imprisonment is appropriate, particularly in light of accountability needs and your role as instigator, but not being involved in inflicting the violence and your remorse, I consider a minimum period of 50 per cent of your sentence is appropriate.
[80] Please stand. You are sentenced to imprisonment for five years and 10 months with a 50 per cent minimum period of imprisonment. You may now be seated.
Kevin Madams
[81] I now turn to you Kevin.
[82] None of the sentencing for any of the defendants is an easy task but yours is the more difficult of all the defendants before this court. You are to be sentenced for your convictions for murder20 and participation in an organised criminal group.21
[83] And before I forget I should have said in relation to Tyrone Peter that I did not consider it appropriate to add anything to the sentence for that charge, given that it was the same conduct as supported the manslaughter conviction but with a different knowledge ingredient. And just to record that Tyrone Peter Madams and Kevin Madams received their first strike warning at the conclusion of the trial.
Role in the offending
[84] The murder conviction was on the basis that you formed a shared understanding with Tyrone William, and others, to assault Mr Rippon or his son using weapons and to assist each other with that, that Tyrone William killed Mr Rippon in the course of pursuing that shared purpose, and that you knew the murder of someone was a probable consequence of carrying out the shared purpose. As I have just mentioned, the participation in an organised criminal group involved the same conduct but it did not require that you have foresight of a murderous killing.
[85] Your defence was that you were not involved in any plan to return to the property to inflict an assault with weapons. It was not your idea and you thought everyone should go home. You contended you did not go on to the property at all and you did not inflict any of the violence on the property and to those on the property at all. It was put to the jury that you had withdrawn from the common purpose but the jury’s verdict means they were sure you did not.
[86] It is for the Crown to prove beyond reasonable doubt the existence of the disputed aggravating factors.22 And as I was the trial Judge I am able to make a decision about those matters. I am sentencing you on the basis that you were not involved in inflicting any of the blows to Mr Rippon and, if you entered the property at all, this was following the initial group of three that began the violent assault on Mr Rippon’s property. Once the violent assault was underway you did leave the vehicle and you had a crowbar with you. If you did not enter the property you were
certainly close by it and brandishing [the crowbar] when Mr Rippon was already lying prone on the ground and the Rippons came out and saw the group of you, in what looked like a V formation, with your weapons. A number of the Rippon witnesses identified you as being part of that group. Consistent with the jury’s verdict I find you were one of those involved in the decision to pick up Tyrone William and return to the property, though I am prepared to accept you were not the chief instigator of that decision. You knew there were weapons in the vehicle when you did so. While you may not have been the chief instigator of the decision, you did not withdraw from it and you assisted by your presence, thereby adding to the numbers, in the front passenger seat. You also assisted in the departure from the scene by coming over towards the property, and possibly being on the property, but if so very briefly, with the weapon. Your threatening behaviour to the neighbour with the crowbar and your amped up state when the police attended at your house immediately after the event are consistent with this.
Personal circumstances
[87] You are 43 years old. You have one daughter for whom you were the primary caregiver before your remand in custody for this offending. You have a fairly limited
22 Sentencing Act 2002, s 24(2)(c).
conviction history, which is mostly for cannabis and drink driving offending. You have three convictions for low level violence-related offending. You have no convictions for anything similar or approaching anything as serious as the present offending.
[88] The pre-sentence report refers to some health difficulties from which you suffer, including debilitating anxiety and I comment that I saw some of that in the police video interview of you on your arrest. You have had a long struggle with cannabis and alcohol abuse. You continue to maintain that you were not as involved in the offending as the Crown portrayed at trial and that you do not accept the jury’s verdict. You are remorseful for your part in the offending and would like an opportunity to apologise to Mr Rippon’s wife. You are considered to be a low risk of reoffending and a low risk of harm to others.
[89] A letter from a long-time neighbour and friend has been submitted on your behalf. She emphasises the important role you have played in your daughter’s upbringing, your other good qualities and your remorse.
Life imprisonment
[90] With a conviction for murder the sentence is life imprisonment unless such a sentence would be manifestly unjust.23 If a sentence of life imprisonment is imposed, the minimum period of imprisonment cannot be less than ten years imprisonment.
[91] I am going to refer to the decision of the Court of Appeal in R v Cunnard as to the appropriate approach to whether a sentence less than life imprisonment can be imposed, which is as follows:24
… Parliament has mandated that life imprisonment should be the standard sentencing response to a conviction for murder, reflecting society’s recognition of the sanctity of human life and its condemnation of anybody who wrongfully takes another life. Life imprisonment is the ultimate penal sanction available, reinforcing the purposes of deterrence, denunciation, protection of society and accountability.
However, Parliament has deliberately empowered High Court judges to impose a lesser sentence according to the all-encompassing criterion of manifest injustice. Its terms authorise a sentencing judge to take into account other relevant sentencing purposes, in particular aggravating and mitigating factors relating to the offence and offender. Of relevance to [the Court in the appeal under consideration were] the gravity of the offending and the degree of the offender’s culpability; the general desirability of consistency with appropriate sentencing levels; an offender’s limited involvement in the offending; and assistance with an offender’s rehabilitation and reintegration.
[92] Those factors have relevance to your case.
[93] It is submitted on your behalf that a sentence of life imprisonment would be manifestly unjust. This submission relies on a case which has some similarities with yours.25 In that case, a key feature of the reasoning was the disparity that would result in the sentences of the person convicted of murder on a similar basis to that on which you were convicted, and the sentence for the principal offender.
[94] There is not the same disparity here in that the starting point for the minimum period of imprisonment for Tyrone William, the principal offender, was 14 years. That was, as I mentioned earlier, adjusted downwards to 12 years for remorse and guilty plea. If a sentence of life imprisonment was imposed, you could receive a minimum period of 10 years which does provide some gap between the principal offender and you.
[95] There is another case similar to the present when a life sentence was not imposed on the person found guilty of manslaughter as a s 66(2) party to the murder committed by someone else which was the basis also of your conviction.26 However not too much store can be placed in that because the sentence was appealed by the Solicitor General as manifestly inadequate and the Court of Appeal indicated the sentence would have needed careful consideration.27 The Court of Appeal did not, however, need to give that consideration because the conviction was quashed and a
retrial ordered.
25 R v Cunnard above n 24.
26 R v Innes [2014] NZHC 2780.
[96] I bear in mind that Parliament has said that a conviction for murder leads to a sentence of life imprisonment and that can only be defeated if it is manifestly unjust. In setting that test Parliament makes no distinction between principals and parties, and no distinction when the conviction is on a s 66(2) basis. If the situation is to be regarded as manifestly unjust, it can only do so with a focus on the particular circumstances that arise in your case. Those circumstances relate both to the offence and the offender. I also bear in mind that the appellate authority is that the threshold to displace the presumption of life imprisonment is a high one and is likely to be met only in exceptional cases. Very few cases have been considered to meet this high
threshold.28
[97] On the other hand, there is no doubt that Tyrone William was the principal offender and he went much further with his violence than any of the rest of you intended or wanted. It is to be remembered that the sentence for murder is life imprisonment and the minimum period of imprisonment is not to be equated with the sentence. A sentence of life imprisonment for your role as compared with Tyrone William’s role is a harsh outcome.
[98] I accept that this can be taken into account in determining when you could be eligible for parole and whether you will be granted parole at that time. I also accept that if I impose life imprisonment your minimum period of imprisonment could be ten years, but not less than that, and that that does provide some difference from Tyrone William. I also bear in mind that there are a number of cases where secondary participants convicted of murder on a s 66(2) basis have received life imprisonment sentences. However in some of those, and I am referring here to two of the offenders in Ahsin, their convictions were subsequently overturned because of inadequate directions to the jury about their involvement and the basis on which they
could be convicted.29 Their original life sentences were therefore imposed when the
basis for their convictions was confused and did not ultimately ensue following the events after the appeal.
28 Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [SA102.02].
29 R v McCallum HC Wanganui CRI-2008-083-2794, 12 February 2010, the convictions were overturned in Ahsin v R [2014] NZSC 153 [2015] 1 NZLR 493.
[99] I also consider it is appropriate to consider your sentence as compared with that for Tyrone Peter. I note also your immediate reaction at the gate after the offence when you were apprehended is, I think, somewhat reflective of the adrenaline you had as a result of what had occurred, and that you are a relatively simple person who is not particularly articulate. The main differences between Tyrone Peter and yourself are that I consider Tyrone Peter was the chief instigator and influencer in the plan to return to the Rippon address, and your respective level of foresight about what was to ensue. The former makes Tyrone Peter more culpable and the latter less culpable. However neither of you wanted anyone to be killed or intended for that to happen. I consider the disparity between your sentence and both the starting point for Tyrone Peter and the end sentence he receives because of his offer to plead guilty to murder, is just too great on the facts and it makes your case an exceptional one for which a life sentence is manifestly unjust. I note also that you are genuinely remorseful, you are not ordinarily violent and were not directly involved in any violence in inflicting any of the violence which led to Mr Rippon’s death. And also you are considered to be a low risk of reoffending.
[100] I therefore need to set a finite sentence for your offending. The starting point does, however, need to be set higher than that for Tyrone Peter because the law does distinguish between those with foresight of the probable consequences, and those who are found not to have had the same foresight albeit that that was because of self induced intoxication and/or the effects of concussion. I consider it is appropriate to set your starting point at 11 years imprisonment.
Personal aggravating factors
[101] There are no personal aggravating factors warranting an uplift and none is sought.
Personal mitigating factors
[102] I accept you are remorseful and that it is genuine. I have to some extent taken this into account in deciding not to impose a sentence of life imprisonment. I reduce the starting point of 11 years imprisonment to nine years and 10 months for the mitigating factors.
Minimum period of imprisonment
[103] I consider, for the purposes of accountability and denunciation, it is appropriate to set a minimum term of imprisonment and that 50 per cent of your sentence is the appropriate minimum term.
[104] Kevin Madams, please stand. You are formally sentenced to nine years and
10 months imprisonment with a minimum non-parole period of 50 per cent of that sentence. You may be seated.
Mallon J
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