R v Martin
[2021] NZHC 1012
•7 May 2021
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2019-019-1654
[2021] NZHC 1012
THE QUEEN v
RYDELL TUAUPIKI MARTIN
Hearing: 7 May 2021 Appearances:
R L Mann and A S C Alcock for Crown
P J Morgan QC and M L Jepson for Defendant
Sentence:
7 May 2021
SENTENCING REMARKS OF PETERS J
Solicitors: Hamilton Legal, Crown Solicitor, Hamilton
Counsel:P J Morgan QC, Hamilton M L Jepson, Hamilton
R v MARTIN [2021] NZHC 1012 [7 May 2021]
[1]Tēnā koutou, tēnā koutou, tēnā koutou katoa.
[2] Mr Martin, you are for sentence today for the manslaughter of Phillip MacPherson in Pukemiro on 1 March 2019.1 The maximum sentence for manslaughter is life imprisonment.2
[3] A jury found you not guilty of assault with a weapon, and not guilty of murder, but guilty of manslaughter following a trial in March 2021 at which I presided. That trial was almost two years after Mr MacPherson’s death. The trial is recent so I have a clear recollection of the evidence.
[4] Following the jury’s verdict, I entered a conviction for manslaughter and gave you what we refer to as a “first strike” warning.
[5] Before I go any further, I wish to acknowledge Mr MacPherson’s whānau. The trial, and much of the evidence, must have been very difficult for you. This morning I have heard the statement from Ms Veronica MacPherson and I have also read the victim impact statement of Ms Sonia Wilson. It is clear from those, and indeed from the evidence I heard at trial, that Mr MacPherson was a much loved son, nephew, brother, father, and friend. That he will not be able to see and help his children grow up is a particular tragedy. His loss is permanent, and the burden his children and his whānau suffer as a result is also permanent. The MacPherson family behaved with considerable dignity throughout the trial and that has continued this morning.
Process
[6] In so far as concerns the process to be followed this morning, it is necessary for me first to summarise the facts of the offending. Then I can turn to the sentencing process itself, which comprises two stages. The process does take some time but I need to explain the reasons for what I have decided. Mr Martin, you will not know the sentence until I get to the very end, so please bear with me until then.
1 Crimes Act 1961, s 171.
2 Section 177.
Facts
[7] Turning to the facts, as I have said, the offending occurred at Pukemiro, which you and your uncle, Te Poro Kingi, happened to be in on the day in question. As you were leaving Pukemiro that afternoon, you came across your much younger cousin, Alazay Fisher-Williams.
[8] You and Alazay started partying and drinking on the corner of Joseph and James Streets whilst Te Poro stayed in the car.
[9] Whilst you and Alazay were partying, Mr MacPherson and his friends, Jonathan Shand and Shane Matangi, came past in Mr MacPherson’s ute. They stopped and, although there was a friendly enough discussion, at the end of it Mr MacPherson said to Alazay that his chainsaw had been stolen and there would be trouble if Alazay was the thief, which was something Alazay denied.
[10] After that, Mr MacPherson, Mr Shand and Mr Matangi had a few drinks at Mr MacPherson’s house. At some point, Mr Shand and Mr Matangi realised that Mr MacPherson was no longer with them.
[11] Knowing that there had been some trouble previously between Mr MacPherson and the Fisher-Williams family, and hearing shouting, Mr Shand and Mr Matangi assumed Mr MacPherson was down the road involved in some kind of argument with Alazay. So they went down the road, Mr Shand being armed with a vacuum cleaner pipe and the axe which turned out to be the fatal weapon. When he gave evidence, Mr Shand said that taking that axe down the road was the worst decision he had ever made in his life, and I would have to agree with him.
[12] Seeing that Mr MacPherson was actually not there with you and Alazay, Mr Shand and Mr Matangi turned to return home. But this was not before you and Alazay had seen them and asked them what they thought they were doing coming down the road armed with weapons. You and Alazay followed them up the road and at some point there was a tussle between you and Mr Shand. You got hold of the axe but apparently gave it to Mr Shand. That could have been the end of it.
[13] By this time, Sonia Wilson, Mr MacPherson’s sister, had driven down the road with her aunt, also looking for Mr MacPherson, who was still nowhere to be seen. Sonia too turned around.
[14] Mr Shand and Mr Matangi were about to get into her car, with the axe, when Mr MacPherson came running down the road towards them. Mr Shand got out of the car, with the axe.
[15] By this stage Hanuere Fisher-Williams had also come down the road, having been told, wrongly it seems, that Alazay was being beaten up.
[16] It seems then to have been agreed that there would be a one-on-one fight between Hanuere and Mr MacPherson, and it was always intended that would stay a one-on-one. However, Mr MacPherson quickly got the better of Hanuere, and then of Alazay, when he joined in.
[17] Your evidence, which I accept, was that it looked as if Mr Shand was going to enter the fight too, as it had ceased to be one-on-one, and Mr Shand of course still had the axe in his hands.
[18] It was at this point that you became involved. You took the axe from Mr Shand, you asked Mr MacPherson why he was fighting with your cousins, and then you swung that axe. You said this was to defend yourself. I do not believe that. Mr MacPherson did not have a weapon and I doubt that he would have come towards you when you had that axe in your hands.
[19]You hit Mr MacPherson at least three times with that axe.
[20] One blow hit Mr MacPherson in the lower back. That was struck with such force that it indented Mr MacPherson’s pelvic bone by one and a half centimetres.
[21]Another blow hit Mr MacPherson around his buttock.
[22]Those two blows appear to have been delivered with the blunt end of the axe.
[23] Then, I am satisfied there was the fatal blow, and that can only have been struck with the sharp end of the axe. You struck Mr MacPherson on the back of his knee, pierced the skin and severed a critical artery, and that is why Mr MacPherson bled to death. That blow likewise must have been struck with force. It took a two centimetre by one centimetre chip out of a nearby bone, and the artery itself is well below the surface of the skin. That you chipped that bone and severed that artery speaks volumes about how hard you hit Mr MacPherson.
[24] Whilst Mr MacPherson was on the ground bleeding, to death as it turned out, you lifted the axe up above your head and twice went to — but did not to be fair — bring it down. Tanaea Fisher’s evidence was that she had got between you and Mr MacPherson by this point, and other people said he was asking you not to hit him again as he had children. And, as I have said, to be fair, you did not hit him again.
[25] Ultimately, Alazay ripped the axe out of your hands and then Tanaea Fisher took the axe and threw it over the fence into an empty paddock.
[26] You then took off, and Mr Shand came down the road in Sonia Wilson’s car, bundled Mr MacPherson into it and took him home. Mr MacPherson was already dead by the time the ambulance arrived.
[27] That these events must have been shocking to anyone who saw them was confirmed by Tanaea Fisher. She was so shocked by what she saw that she could hardly get her evidence out.
[28] I accept that you were late to enter the fray, and that you only became involved when it seemed like Mr Shand was about to do so. Also, he, not you, took that axe to the fight, and this axe was the very one you had taken from him and given back to him earlier that evening. You had no gripe with Mr MacPherson, you had never met him before in your life, and if you were looking for trouble generally, you certainly could have had it with Mr Shand earlier in the evening. Those are all points in your favour.
[29] But what is not in your favour is that you hit Mr MacPherson at least three times, and with force. There was absolutely no need for you to hit Mr MacPherson at
all, let alone three times. You could have just threatened him with that axe. If you were going to hit him, once would have been plenty. The second and third blows were entirely unnecessary. Worst of all to my mind, is the evidence of Mike Chubb who said that he saw Mr MacPherson trying to stagger away, obviously severely hurt, and that you chased after Mr MacPherson, swinging the axe.
[30] Ultimately the Police caught up with you and charged you with murder. You were remanded in custody for the best part of two years, and but for the COVID lockdowns you would have gone to trial in May 2020. So you have been languishing in custody for a considerably longer period than is desirable or usual.
[31] As it turns out, you offered to resolve this matter in March 2020 by pleading guilty to manslaughter, an offer which the Solicitor-General, as is her prerogative, did not accept.
[32] But had that offer been accepted, the MacPherson family would have been spared a trial, you and your family would have been spared the trial, you would have been sentenced many months ago, and there would have been a substantial saving in time and resources to the criminal justice system. That is a matter I am going to come back to shortly.
[33]So, those are the facts.
Information
[34]I have considerable information to help me today.
[35] First, I have the report from the Department of Corrections dated 4 May 2021, so that is very recent.
[36] The report writer thinks that this offending, and your criminal history, puts you at a high risk of reoffending and that the very serious nature of this offending means you have a high risk of harming others. On the other hand, the report writer believes you showed a genuine interest in addressing your tendency to violence. The report
writer also thinks that alcohol played a significant part in your offending and I agree with that.
[37] Secondly, I have a report from Ms Shelley Turner which provides detailed information regarding your background and how it is relevant to the violent nature of this offending. I will say more about that shortly too.
[38] In addition to those reports, I have the submissions of both counsel which have been of great assistance to me.
Sentencing process
[39] Having set out the facts and that information, I turn now to the sentencing process.
[40] The first step is to establish what we refer to as the starting point. This is the sentence that would be imposed having regard to the nature of the offending, but without regard to any personal factors relevant to you.
[41] Once I have set the starting point, I come to step two which is to adjust that starting point upwards or downwards by taking into account those personal matters. It is in that way that I arrive at the end sentence.
Starting point
[42] Turning to the starting point, manslaughter is always very serious offending, because inevitably someone, in this case Mr MacPherson, has lost their life.
[43] In a case such as this, the sentence imposed must be sufficient to hold you accountable for the loss that you have caused — to Mr MacPherson, to his family, and to the community generally. It must also be sufficient to denounce your behaviour, and deter you and others from behaving in a similar way in the future. I also must treat you consistently with others, and impose the least restrictive outcome appropriate in the circumstances.
[44] There is no guideline Court of Appeal judgment for cases involving manslaughter because it occurs in such vastly different circumstances. Some manslaughter cases are what we call “one punch” cases where a person’s death is caused by or results from a single punch. Manslaughter might result from shooting someone unintentionally, or as an overreaction to a threat. So there are very different levels of culpability, and because of that the best guidance is from the starting point in similar cases and in a case of this nature, a Court of Appeal guideline case called R v Taueki.3
[45] For the Crown, Ms Mann says the important features of your offending are the extreme violence of what you did, the use of a heavy and lethal weapon, and Mr MacPherson’s obvious vulnerability at the time you struck the fatal blow. I have already referred to Mr Chubb’s evidence.
[46] Mr Morgan QC says you did not go for Mr MacPherson’s head and that is a point in your favour. I have already mentioned the several other points that are in your favour.
[47] The Crown says that what happened on this occasion puts the offending squarely within what we lawyers call band two of Taueki and that the starting point should be seven to eight years’ imprisonment. Mr Morgan says, at the most, your offending is in the bottom of band two and the starting point should be four and a half to six years’ imprisonment. Both lawyers have referred me to cases that support their respective arguments.4
[48] I am satisfied that Ms Mann’s cases are the closest to this one. The starting point must be eight years’ imprisonment — there was a weapon, extreme violence, an unarmed victim and one who was vulnerable by the time you delivered the fatal blow. So, eight years is the starting point I adopt.
3 R v Taueki [2005] 3 NZLR 372 (CA).
4 Crown cases: R v Hunt [2016] NZHC 881 and R v Skeen [2016] NZHC 1904. Defence cases: R v Stone HC Wellington CRI-2005-078-1802, 9 December 2005; R v Mahari HC Rotorua CRI-2006-070-8179, 14 November 2007; v Tamati HC Tauranga CRI-2009-087-1868, 27 October 2009; R v Kapea HC Hamilton CRI-2009-019-10579, 22 February 2011; R v Nepia [2019] NZHC 1932; and R v Grey [2019] NZHC 2364.
Aggravating and mitigating factors personal to you
[49] This brings me to the second stage which is to take account of factors personal to you which might lead to an increase or a reduction in that starting point.
Criminal history
[50] You have several convictions for violent offending. There was a common assault in 2015. In 2017, you were convicted of four charges of male assaults female, one of assault with a weapon, one of assault with intent to injure, and one of possession of an offensive weapon. As I understand it, all of those were committed against your partner with whom you have two children. Then, in 2018, there was another male assaults female, which had been committed the previous year. Then there was this offending in 2019 and then, in May 2020 when you must have been in prison, you committed another assault.
[51] The Crown says there should be an uplift of nine to 12 months for your record of violent offending committed before this offence. On one view of it, an uplift is justified. On the other hand, that offending was committed in a very different context and I am not persuaded that the principles on which the Court imposes an uplift are engaged. So I am not going to increase the sentence for your prior convictions.
Personal and cultural factors
[52] I want to come on now to Ms Turner’s report which tells me that violence has been a part of your life since you were a child. You saw and heard your father being violent towards your mother, and he was violent to you. Your description of a “standard” hiding was punches, kicks and a jug cord.
[53] Ms Turner states that not only was your family violent, your community was also. Your mother told Ms Turner that you were, and still are, on the constant lookout for trouble.
[54] You were introduced to gangs at an early age, describing yourself as “born with a red rag in my mouth”.
[55] To make a bad situation worse, you told Ms Turner you began smoking cannabis at 12, and that you started drinking early in life also. The cannabis was given to you by your uncles.
[56] Your evidence at trial was that, between you, you and Alazay had three bottles of gin that night. Even assuming that Alazay consumed half, which I think is highly unlikely given the size of him, a bottle and a half is a huge amount in anyone’s book.
[57] Ms Turner’s report indicates to me that violence has been a natural way of life for you. So whilst others might have driven away, as Mr Morgan said, or walked away or just grabbed the axe and threatened Mr MacPherson with it, that you went on to deliver three blows, one of which was fatal, is perhaps not a surprise given the contents of the report.
[58] Ms Turner also tells me that you are remorseful, that you never intended this fight to get out of hand the way it did, and that you now fully understand the impact of what you have done, not only for Mr MacPherson and Mr MacPherson’s family, but also for your own family.
[59] You will not be around for your partner and your own children — to whom you have clear responsibilities — for the next few years, and your own mother has had to go through this with you.
[60] Ms Turner, who wrote this report, is highly respected in this area. If Ms Turner says you are remorseful and wish to do a lot better in the future, then I am willing to take her word for it. She is not someone who has the wool pulled over her eyes very easily.
[61] I am going to give you a 12 month discount to the starting point for the factors in this report. Eight years’ imprisonment is a fair reflection of the culpability of a person who did not have to contend with your upbringing and the features I have mentioned. It is not a fair reflection for someone like you who has had to deal with those matters, all of which are reflected in this offending, so that reduction brings the sentence down to seven years’ imprisonment.
Offer to plead and other matters
[62] As I have already mentioned, you have had two years on remand so you have been delayed in getting on with some of the courses that might teach you another way and with doing other things like getting a job in the prison. You have also had this trial hanging over your head for at least a year longer than we would like.
[63] You offered to plead guilty to manslaughter a year before the trial. And then, I accept there was co-operation throughout the trial which meant a lot of witnesses did not actually have to be called.
[64] For those factors, and this is very generous, I am going to give you a discount of another 12 months. That brings the end sentence to six years’ imprisonment.
Minimum period of imprisonment
[65] The Crown does not seek the imposition of a minimum period of imprisonment and I do not consider it necessary to impose one. The date of your release will be a matter between you and the Parole Board.
Sentence
[66] Mr Martin, please stand. For the manslaughter of Mr Phillip MacPherson, I sentence you to six years’ imprisonment.
[67]Please stand down.
Peters J