R v McKee
[2017] NZHC 2286
•21 September 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2016-092-11043 [2017] NZHC 2286
THE QUEEN
v
BODI MCKEE
Hearing: 21 September 2017 Appearances:
Y V Yelavich and S R Norrie for the Crown
AMM Ives and H B Leabourn for the DefendantJudgment:
21 September 2017
SENTENCING NOTES OF MUIR J
Counsel/Solicitors:
Y V Yelavich, Kayes, Fletcher, Walker, Manukau
S R Norrie, Kayes, Fletcher, Walker, Manukau
AMM Ives, Barrister, AucklandH B Leabourn, Barrister, Auckland
R v MCKEE [2017] NZHC 2286 [21 September 2017]
[1] Bodi McKee appears for sentence today having been found guilty of the charge of manslaughter following trial by jury. The victim of the offending was Mr Leslie Putt.
The offending
[2] The following summarises the facts against which I sentence Mr McKee. As trial judge I was able to make my own assessment of the witnesses and this summary reflects that assessment, subject always to consistency with the jury’s verdict.
[3] Mr McKee arrived at the address at 3 Winsford Street, Manurewa at around
7.00 am on Saturday 24 September 2016.
[4] He was in the words of one of the occupants of that house, Ms Monkley, “amped”. The unusual time of his unannounced arrival and the fact that Ms Monkley described him as having a can in his hand and believed he had been drinking, coupled with his demeanour, satisfy me that although not seriously intoxicated, he was under the influence of alcohol and/or on drugs at the time.
[5] I accept that he did not come to the property with any premeditated intention of having an altercation with the deceased, whose presence at the address was unexpected. Nor as he approached the property, where the deceased was sleeping in his car in the driveway, did it at first register with Mr McKee that Mr Putt was there. I accept in that respect the evidence of Ms Monkley and Mr Angus (supported by the witness Epsilon Lauvi) that, when the defendant first arrived, his intention was simply to make a social call on his friend Cody Shelford and/or play with Mr Shelford and Ms Monkley’s son, and that consistent with that intention he entered the house and spent time with them. I reject Mr Shelford’s evidence to the contrary. His defensiveness in respect of the drug dealing activities, which I am satisfied were being conducted from that property, permeated, in my view, much of his evidence
[6] I accept Ms Monkley’s evidence that Mr McKee and the deceased were known to each other and I am satisfied that there was some bad blood between them. The reasons were never explained in the evidence.
[7] At all times Mr McKee was carrying a shoulder bag in which there was a loaded 0.22 calibre pistol for which he had no firearms licence. Whether it was being carried for personal protection or, as Mr McKee now says in a letter to the Court, because he was in the process of delivering it to another friend, was never explained in the evidence. I accept however that the gun was not brought to the property with the specific purpose of being used against the deceased.
[8] I accept Ms Monkley’s evidence that while Mr McKee was in the dining annex of the house and in her presence, he looked out the window and that it spontaneously registered with him that the vehicle in the driveway belonged to Mr Putt and that Mr Putt was in it. I accept also that, having recognised it was Mr Putt’s car he immediately ran outside and engaged the deceased by opening the passenger’s door. I accept Ms Monkley’s evidence that he was yelling at the deceased and was, by that stage at least, holding the gun in his hand.
[9] As a result the deceased was woken and exited the driver’s door. He walked around the front of the car and the two faced off against each other in the paved area adjacent to the back door. Mr Putt adopted a fighting stance and challenged Mr McKee to a one-on-one fist fight. Each, I am satisfied, traded escalating insults and threats. I am also satisfied that the deceased made repeated demands that Mr McKee drop the gun which Mr McKee was at that stage holding by his side. As the altercation developed and the environment became more threatening Mr McKee on two occasions sought permission from Mr Shelford, who was at that stage standing in the back porch of the house, for what was effectively safe passage through the house and out the front door. Mr Shelford denied him this and Mr McKee then backed along the wall of the house towards the driveway still with the gun to his side.
[10] At that point Mr Putt advanced on Mr McKee swinging at him but in a manner and at a distance unlikely to connect in what the Crown described in closing as a “fake”. At or about the same time he made a homophobic slur calling Mr McKee “a
little faggot” and said words to the effect that Mr McKee would never use the gun in any event.
[11] Mr McKee drew the weapon up reflexively as Mr Putt swung at him and then discharged it. This resulted in a single gunshot wound to Mr Putt’s lower abdomen which, having passed through the iliac artery, caused immediate blood loss into the abdominal cavity and shortly afterwards unconsciousness and death.
[12] I do not accept the Crown submission that Mr McKee deliberately discharged the weapon with the intention of shooting Mr Putt in the chest or abdomen. I consider that inconsistent with the jury verdict. Had the Jury accepted that was his intention a conviction for murder under s 167(b) of the Crimes Act would in my view have been almost inevitable at the point self-defence was rejected.
[13] Rather I consider the most reliable inference from the verdict to be that
Mr McKee intended to inflict a non-fatal injury, possibly to the leg area, or intended to fire a warning shot to the deceased’s side, but as he lifted the gun and reflexively pulled the trigger the aim was inaccurate. Had there been an intention to kill or an intention to inflict bodily injury known to be likely to cause death, the gun would in my view have been trained at or discharged at Mr Putt’s mid torso area.
[14] I accept the defence submission that this is a case of excessive self-defence but subject to three important qualifications.
(a) I find that Mr McKee was the instigator of the altercation and that his aggressive engagement was in part alcohol or drug-fuelled.
(b)When challenged to a fist fight Mr McKee chose to maintain the advantage which his weapon afforded him despite the deceased not having any particular physical superiority.
(c) In the location from which he discharged the gun there was a ready means by which he could have turned and run from the property, and I accept, given his youth and build, he could have readily outrun Mr Putt.
He did not do so in my view because, having initiated the confrontation and in the face of Mr Putt’s taunts, he was not going to be seen to disengage by turning and running.
[15] After discharging the fatal shot Mr McKee ran to his car and drove directly from the property. He did not render any assistance to the deceased but as he was pursued down the driveway by Mr Shelford, he said “sorry”. I find that that comment was primarily directed towards his friend Mr Shelford rather than an expression of contrition for the offence he had just committed. I accept the Crown’s position that for the next two and a half days he actively evaded police and that he disposed of the weapon in order to further frustrate the Police’ inquiries. Albeit seemingly on legal advice, he chose not to assist the Police in any way.
Victim impact statements
[16] In their victim impact statements Mr Putt’s father, mother and aunt eloquently and emotionally express their grief and shock at his death. The circumstances in which this occurred have clearly had a profound effect on Mr Putt’s family, causing, in the case of his mother post-traumatic stress disorder and the break-up of her relationship. There is the additional and significant feature that Mr Putt’s children will now grow up without a father.
Mr McKee’s personal circumstances
[17] Mr McKee is 24 years old. He has a lengthy criminal history for a person of his age, having first appeared in the Youth Court in 2010 and having amassed 46 convictions in the intervening period. Most are relatively minor in nature, such as burglaries, thefts and multiple breaches of court orders, but I note significantly that he has a conviction for aggravated robbery in 2010, possession of an offensive weapon in 2011, and injury with intent to injure in 2012.
[18] I accept that Mr McKee had an extremely troubled childhood. He says that he was taken into the care of Child, Youth and Family Services from the age of four, and that excessive alcohol consumption, illicit drug use and gang involvement were an everyday part of his life growing up.
[19] The Provision of Advice to the Courts (PAC) report describes Mr McKee as presenting a high risk of re-offending due to his previous history, a propensity for violence, and minimal insight into his offending.
[20] However, the author of the report considers that Mr McKee displays a degree of remorse for his actions, although this may be more directed to his desire to maintain a relationship with his young son. The writer says that Mr McKee expresses a strong motivation to address his offending: he feels it is time he made an effort to alter the direction of his life. Mr McKee has also written a letter to the Court in which he says he is deeply remorseful about what occurred and the loss that the victim’s family have suffered. He states that his time in custody has given him a changed perspective on life, and that he wishes to participate fully in rehabilitative programmes while in prison so that he can be a better father and role model to his son on his release.
[21] The defence has provided a number of letters from members of Mr McKee’s family in which they state how much they love and support him. Other letters from the Department of Corrections and prison programme providers indicate that Mr McKee is currently enrolled and making good progress in an intensive literacy and numeracy course, an anger management course, and a course identified as “Breaking the Power of the Past”.
Crown submissions on sentence
[22] The Crown seeks a starting point of nine years’ imprisonment. It says that this starting point is warranted by reference to R v Christie (a starting point of eight years);1
R v Flavell (a starting point of seven years and six months);2 and R v Pira (a starting
point of six years),3 each cases of manslaughter by unlawful discharge of a firearm. The Crown says these cases are all less serious than the present case. It relies on what it says are a number of aggravating features of the offending:
(a) unlawful possession of a firearm;
1 R v Christie HC Gisborne CRI-2003-016-6522, 28 October 2004.
2 R v Flavell [2014] NZHC 3373.
3 R v Pira HC Rotorua CRI-2006-063-329, 13 December 2006.
(b)premeditation in that Mr McKee was in possession of a loaded firearm when he arrived at the address;
(c) provoking the altercation with the deceased;
(d)deliberately using a lethal weapon in a confrontational dispute where the deceased was unarmed and repeatedly asked him to put the gun down;
(e) extreme recklessness in allowing the gun to be ready to be discharged when engaged in that confrontation;
(f) an additional element of recklessness by wielding the gun while under the influence of alcohol;
(g)deliberately intending to discharge the weapon into the deceased’s torso;
(h) failing to use options available to de-escalate the confrontation;
(i) failing to assist the victim immediately after the shooting;
(j) actively avoiding police apprehension for two days afterwards; and
(k) the effect on the family of the deceased’s death.
[23] The Crown then seeks an uplift of three to four months because at the time of the offending Mr McKee had failed to appear in the Papakura District Court on a charge of breaching the conditions of his community work and was thus subject to an arrest warrant.
[24] The Crown seeks a further uplift of four to six months to account for
Mr McKee’s previous violent convictions.
[25] It submits that no discount should be given for remorse and also suggests that any discount for Mr McKee’s offer to plead guilty to manslaughter should be reduced given that he then advanced the exculpatory defence of self-defence at trial.
[26] Finally, the Crown seeks a minimum period of imprisonment (MPI) of 50 per cent. It emphasises the need for deterrence and the observations in the PAC report as to Mr McKee’s propensity for violence and risk to others.
Defence submissions on sentence
[27] Ms Ives for Mr McKee says a starting point in the range of four and a half to five years’ imprisonment is appropriate, citing a number of sentencing decisions for manslaughter by unlawful discharge of a firearm. She takes issue with a number of the aggravating features advanced in the Crown’s submissions, contending that they are not supported by the evidence or the jury’s verdict. She also submits that the following mitigating features are present: excessive self-defence; conduct of the victim; and attempts to disengage from the confrontation.
[28] Ms Ives also disputes that there are any factors relating to Mr McKee that would warrant an uplift; or alternatively that any uplift for personal aggravating factors should be no more than one to two months. She submits that a discount in the range of 15 to 20 per cent for Mr McKee’s offer to plead guilty to manslaughter is appropriate, as well as a further discrete discount of five per cent for remorse and rehabilitation.
[29] Finally, Ms Ives submits that no MPI is warranted in this case, relying on what she says is Mr McKee’s lack of relevant convictions for serious violence and the fact that she says no such minimum period of imprisonment has been imposed in an equivalent case.
Analysis
Purposes and principles of sentencing
[30] The purposes of sentencing that I consider particularly relevant in the case of
Mr McKee are the need to hold him accountable for harm done to the victim and to
the community, to promote a sense of responsibility in him for the harm he has caused, and to denounce his conduct and deter similar offending.4 In sentencing Mr McKee I must also take into account the principles in s 8 of the Sentencing Act 2002, including in particular the gravity of the offending in this case and Mr McKee’s degree of culpability, and the general desirability of consistency with similar sentencing decisions.5
Starting point
[31] Everyone who commits manslaughter is liable to life imprisonment,6 but the Court has the discretion to impose a lesser term of imprisonment.7 There is no tariff sentencing case for manslaughter. However, the Court of Appeal in R v Tai recommended that a sentencing Court:8
(a) consider the matter in terms of R v Taueki (the tariff sentencing decision for grievous bodily harm),9 where that decision is relevant, and adjusting for the fact that the consequence of the serious violence has been not just serious injury but death; and then
(b)cross-check by reference to comparable manslaughter sentencing decisions.
[32] The Court subsequently noted in Murray v R that an analysis of comparable cases will often be the best guide.10
[33] I begin by reviewing the aggravating and mitigating features of the offending and then turn to the comparable sentencing decisions.
4 Sentencing Act 2002, ss 7(1)(a), 7(1)(b), 7(1)(e) and 7(1)(f).
5 Sentencing Act, ss 8(a) and 8(e).
6 Crimes Act 1961, s 177.
7 Sentencing Act, s 81.
8 R v Tai [2010] NZCA 598 at [12].
9 R v Taueki [2005] 3 NZLR 372 (CA).
10 Murray v R [2013] NZCA 177 at [27]. Indeed, further Court of Appeal authority indicates that caution is needed in using Taueki in a manslaughter sentencing where the offending does not disclose serious violence of the type where serious injury was foreseeable; see Turi v R [2014] NZCA 254 at [17]–[18]; Murray v R [2013] NZCA 177 at [20] and [27]; Ioata v R [2013] NZCA
235 at [25]–[27]. I consider that, given the nature of the violence in the present case, it is appropriate to draw some guidance from Taueki.
[34] I consider that the main aggravating features of Mr McKee’s offending are the fact that he brought with him to the address a loaded firearm, for which he had no license, and the fact that he deliberately discharged the firearm while pointing it at the deceased, albeit I accept not pointing it at his chest at any time. That was a recklessly dangerous act. An additional aggravating factor is Mr McKee’s failure to render assistance to the deceased after the shooting. Instead he chose to run away.11 Other aggravating factors relied on by the Crown are in my view relevant but of lesser significance. I place in that category the fact that while carrying a loaded firearm he was or had been drinking. I do not consider Mr McKee’s evasion of police after the shooting an aggravating factor – rather it is the absence of a mitigating factor. I place in the same category the fact that he instigated the altercation. That fact is relevant but, as I will indicate, more especially so in the assessment of mitigating features.
[35] I do not accept Ms Ives’ submission that the discharge of the firearm was an unintentional reaction to the deceased’s attempted punch, if by that she means that no conscious thought was brought to it. However as I have indicated I accept that it was reflexive in the context of Mr Putt advancing on him and attempting, however unsuccessfully, to strike him.
[36] As to the concept of “excessive self-defence”, Taueki describes this as a mitigating factor where “a party has acted out of self-defence but has gone too far”.12
Excessive self-defence is to some extent present as a mitigating feature of this case. Mr McKee faced verbal and physical threats and the evidence was that he looked scared and defensive, particularly as he was backed up against the wall of the house. But his response was overwhelmingly disproportionate in circumstances where Mr Putt was calling for a one-on-one fist fight, the gun could have been given to
Mr Shelford without fear of it being turned on Mr McKee and Mr Putt had no particular physical advantage over Mr McKee. And the fact that Mr McKee instigated
the altercation and could in my view have de-escalated it by turning and running also
11 This is cited as an aggravating factor in R v Flavell, above n 2, at [41], although I note that in that case Mr Flavell left the scene after shooting the deceased in a playground car park in the early hours of the morning when few others would have been around. By the time help eventually arrived, the deceased had already died. Here, multiple others were present at the scene and able to provide assistance.
limits the extent to which I am prepared to consider this a mitigating feature. Some credit should however be given for his earlier attempts to exit through the house.
[37] I turn now to the comparable cases. The Crown relies on R v Christie, R v Flavell and R v Pira. The exact facts of Christie are unclear from the sentencing notes. However, it seems that Mr Christie shot and killed his brother in the family home, having acquired the shotgun used in the incident two to three days earlier and having stored it in the family home along with ammunition. On Mr Christie’s own evidence, he deliberately discharged the weapon into the ground to “freak out” his brother. After the shooting, he fled the house without any attempt to assist him. Potter J adopted a starting point of eight years, noting that this was “perhaps at the lower end of the range”.13 The element of premeditation in Christie, and the absence of any circumstances of self-defence, make it more serious than the present case.
[38] In R v Flavell, Mr Flavell had a pump action shotgun stored behind the rear passenger seat of his vehicle. It was there for the purpose of going turkey shooting. Mr Flavell was out with his girlfriend when the deceased approached his car and punched him twice in the head through the open driver’s window, causing him to bleed. Mr Flavell retrieved the shotgun and loaded it. He got out of the car and pointed the gun at the deceased. The deceased said something to challenge him, at which point Mr Flavell discharged the gun. The deceased was shot in the upper chest. Thomas J adopted a starting point of seven years and six months. It is unclear from the sentencing notes what Mr Flavell’s intentions were in firing the shotgun at the victim’s torso, but Thomas J deliberately rejected the argument of excessive self-defence: rather, in his own words, Mr Flavell was “not gonna let [the deceased] get away with” what he had done. Flavell has certain parallels to the present case, in that the defendant in each case intentionally discharged a firearm as an unpremeditated response to a perceived insult, threat or challenge rather than simply walking or running away from the conflict.
[39] In R v Pira, Mr Pira had a sawn-off .22 rifle between his knees as he sat in his vehicle. The rifle was there because of ongoing antagonism between Mr Pira and the
deceased. The deceased approached the vehicle in an aggressive way, and he and
Mr Pira exchanged mutually abusive comments and physical blows through the window of the vehicle. The deceased saw the gun, and there was a struggle between the two men. During that struggle, Mr Pira presented the gun and pointed it at the deceased. In the course of the struggle it went off. The deceased was fatally wounded. Venning J adopted a starting point of six years. I agree with the Crown that the present case is more serious than Pira, given the fact that in that case the firearm was discharged in the course of a physical struggle between the defendant and deceased with both grappling for control of the weapon.
[40] Ms Ives cites several manslaughter sentencing decisions involving the accidental discharge of a firearm at a family member:
(a) In R v Sanft,14 Mr Sanft pointed a shotgun towards his young daughter and discharged it. Venning J described his actions as negligent in the extreme, and adopted a starting point of five years.
(b)In R v Williams,15 Mr Williams pointed an air rifle at a can placed on a tree stamp, close to where his friend was standing, and pulled the trigger. His friend was shot, and later died in hospital. Mr Williams immediately dropped the air rifle and ran towards him saying “I’m sorry, I’m sorry, I didn’t mean to”. The Crown accepted that he did not deliberately aim the air rifle at his friend. Lang J adopted a starting point of four years.
(c) In Gideon v R,16 Mr Gideon was posing for a photo, aiming a shotgun at his brother with his fingers inside the trigger guard. While in this position, the right-hand hammer was activated and Mr Gideon’s brother was shot in the torso and killed. The Court of Appeal upheld the
starting point of four and a half years imprisonment.
14 R v Sanft [2017] NZHC 2164.
15 R v Williams [2013] NZHC 3173.
16 Gideon v R [2016] NZCA 16.
(d)In R v Goldstone,17 Mr Goldstone had obtained a double-barrelled shotgun without a license, ostensibly for the purpose of protecting himself and his partner. While his partner took photographs of him presenting the loaded shotgun in the lounge of their home, he pulled the trigger, killing his partner. Miller J accepted the discharge was unintentional and adopted a starting point of five years’ imprisonment.
[41] Each of these cases involved an extremely foolish act with tragic consequences, but none of the defendants intended to cause any harm to the deceased. That places those cases in a very different category from the present. Given my conclusion that Mr McKee intentionally discharged the firearm, in the context of an altercation with the deceased, I derive little assistance from these cases.
[42] Ms Ives also relies on R v Kirk as being similar to the present case.18 In that case, the victim was Mr Kirk’s mother’s partner. On the night in question the victim had become verbally abusive and violent towards Mr Kirk’s mother and others in the house, arming himself with a large meat cleaver. Mr Kirk ran into his bedroom to retrieve his partner’s gun, and the victim followed him swinging the meat cleaver. Mr Kirk screamed for help and pointed the gun at the victim to scare him. He fired six shots in rapid succession, two of which hit the victim directly. Clark J adopted an adjusted starting point of four years imprisonment, noting that this reflected the reduced culpability of victims of family violence who kill their abusers. I see little similarity between Kirk and the present case, where there is no context of domestic violence. The facts supporting an argument of self-defence were also very considerably stronger in Kirk than in this case.
[43] In my view, R v Christie, R v Flavell and R v Pira are closer to the present case. Ultimately I consider that a starting point of seven years and six months’ imprisonment appropriately reflects Mr McKee’s culpability, balancing the fact that his actions were not premeditated and the element of (excessive) self-defence against the fact that he
brought a loaded firearm to a domestic dwelling and deliberately discharged it when
17 R v Goldstone HC Auckland CRI-2009-044-10031, 28 May 2010.
18 R v Kirk [2016] NZHC 1249.
he could have turned and run in the face of the threat which he perceived (and for which he was ultimately responsible).
Features personal to the offender
[44] The Crown seeks an uplift for the fact that the offending took place after
Mr McKee had failed to appear in the District Court on a charge of breaching his conditions of community work and when a warrant for his arrest had been issued. Ms Ives points out that this charge was later withdrawn and that it is unclear what his bail conditions were at the time. She disputes that Mr McKee was “actively avoiding” the police at the time of the offending, and I agree that there is no evidence to that effect. In the circumstances I do not consider it appropriate to impose an uplift for this.
[45] The Crown also seeks an uplift to reflect Mr McKee’s previous convictions for violent offending. A sentence uplift is sometimes imposed where the offender has similar previous convictions on the basis that the index offending is made worse by the fact that the defendant has not learnt from his previous sentences.19 Care must be taken, however, to avoid double punishment for the same offending.20 Mr McKee does have some history of serious violent offending. Although I put to one side the conviction for aggravated robbery in the Youth Court in 2010, when he was a very young man, he has subsequently been convicted of possession of an offensive weapon, injuring with intent to injure, fighting in a public place and possession of a knife in a public place. He has a history therefore of engaging violently with others and of possessing offensive weapons. The present offending represents a severe escalation of that history. In my view a modest uplift of two months’ imprisonment is warranted on account of his previous history of violent offending.
[46] Ms Ives seeks a discount for remorse and rehabilitation. Genuine remorse can warrant a sentencing discount separate from a guilty plea.21 What is required is a “proper and robust evaluation of all the circumstances” that may demonstrate a
defendant’s remorse.22 The Crown opposes any such discount, pointing to
19 See R v Ormsby [2016] NZHC 2220 at [26].
20 See Brook v R [2010] NZCA 13 at [14].
21 See Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64]; Sentencing Act, s 9(2)(f).
22 Hessell, above n 21, at [64].
Mr McKee’s behaviour during trial, including his response following the not guilty verdict on the charge of murder. However, Mr McKee has since written a letter to the Court stating how “truly sorry” he is for his actions, and how his time in custody has given him the opportunity to reflect on what he has done. The author of the PAC report, who interviewed Mr McKee in prison, assesses him as showing a degree of remorse. He offered to attend a restorative justice conference with the deceased’s family, although that offer was rejected.23 He has also participated in and demonstrated a responsible attitude to rehabilitative courses in prison, including anger management. In my view these actions do show a level of remorse and an approach to rehabilitation which should be reflected in a modest discount. Although Mr McKee’s reaction on receipt of the Jury’s verdict was both immature and insensitive to the victim’s family, I take into account that he had just been acquitted of the most serious charge a defendant can face, in circumstances where he had prior offered to plead guilty to the charge for which he was convicted. Some sense of relief is probably therefore understandable although if he had given greater consideration to the deceased’s family members he would have contained himself until after he had left the dock. I allow a three month discount for remorse and rehabilitation, equating to approximately 3.5 per cent.
[47] I also consider that Mr McKee is entitled to a discount for his offer to plead guilty to manslaughter approximately two months before trial, given that that is the offence for which he was ultimately convicted. However, this offer did not come at the first available and reasonable opportunity, given that Mr McKee was first charged on 26 September 2016. This reflects on the quantum of the discount available.24
[48] The Crown further submits that any guilty plea discount should be tempered by the fact that Mr McKee then ran the argument of self-defence at trial. I do not consider that appropriate; the Crown declined to accept Mr McKee’s offer to plead guilty to manslaughter and Mr McKee was entitled to defend the charge of murder in
any way he chose.25 In my view a discount of 15 percent is appropriate in this respect.
23 I must take this into account under s 10 of the Sentencing Act.
24 Hessell, above n 21, at [75].
25 Mr McKee had the right to present a defence under s 25(e) of the New Zealand Bill of Rights Act
1990. I also note that in both R v Hepi [2015] NZHC 1449 and R v Smith [2014] NZHC 2091, a discount was given for the defendant’s earlier offer to plead guilty to manslaughter, despite the
Conclusions as to sentence
[49] Applying the various uplifts and discounts identified the end sentence I impose is one of six years and three months’ imprisonment.
Minimum period of imprisonment
[50] Finally, I am required to decide whether a minimum period of imprisonment should be imposed. If I do not do so, Mr McKee will be eligible to be considered for parole after serving one-third of his sentence,26 I consider that period insufficient to denounce Mr McKee’s conduct and to hold him accountable for the harm done to his victim and to the community.27 He took a life in circumstances where he was the instigator of the ultimately fatal confrontation. He was carrying a loaded firearm in a domestic setting and while using intoxicants. He was a time bomb in respect of which Mr Putt ultimately lit the fuse with his attempt to strike him. I take into account also the PAC report to the Court describing him as presenting a high risk of re-offending, given his previous history, propensity for violence and limited insight into his offending. In my view only by imposing a minimum sentence in excess of his parole eligibility date is some sense of reality given to offending which has had devastating consequences to those Mr Putt leaves behind.
[51] I note Ms Ive’s submission that a MPI will delay Mr McKee’s ability to undertake courses to address his offending, notwithstanding a strong motivation to do so. It is unfortunate if that is the case. However, that is ultimately a resourcing decision for the Department of Corrections. The requirement to denounce Mr McKee’s conduct and hold him accountable are, in my view, considerations of greater weight in this case.
[52] I impose a minimum period of imprisonment of three years being slightly less than 50 percent of the sentence I have identified.
fact that he then ran self-defence at trial.
26 Parole Act 2002, s 84(1).
27 Sentencing Act 2002, ss 86(2)(a) and 86(2)(b).
Result
[53] The sentence I impose on you, Mr McKee, is one of six years and three months’
imprisonment, with a minimum period of imprisonment of three years.
Muir J
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