R v N HC Gisborne T021803

[2002] NZHC 1155

IN THE HIGH COURT OF NEW ZEALAND
GISBORNE REGISTRY T021803

THE QUEEN

v

N

Sentence: 18 October 2002

Counsel:
D W R Barry for Crown
A P Dreifuss for Prisoner

SENTENCE OF SALMON J

Solicitors: Woodward Iles & Co, PO Box 347, Gisborne

Rishworth, Wall & Mathieson, PO Box 55, Gisborne

[1] Mr N, you are now 16 years of age. After trial by a jury for murder, you were found guilty of manslaughter. The maximum sentence for manslaughter is life imprisonment. Although everyone in this Court is well aware of the factual background of the matter, it is necessary for me to repeat it again for the record.

[2] Your sister was in a relationship which had some element perhaps a considerable element, of violence involved in it. She was much older than you and because your parents had separated she was a mother figure to you. The attitude of your father, and I do not for a moment condemn this, was that given her age she was the one that would need to take the necessary steps to deal with the relationship she was in. You, however, and understandably, were very upset at the way your sister was treated and that frame of mind on your part continued for a number of years.

[3] At the time of the offence you had just returned from a year living with your mother, to resume living with your father and you had started a farming course, and the indications are that you were beginning to feel rather more in control of your life than perhaps had been the case up until then.

[4] You were dropped off at your father’s home on 30 January after attending your course. Your sister and the victim were there helping your father clear out the garage. In the early afternoon the victim and your sister were about to leave in their car. You were offered a drink by the victim. You told him in a very rude manner, what he could do with his drink. He responded to you in what I accept was an unpleasant and hurtful manner. You went inside, you took a sharp butcher’s knife from the kitchen. You walked back outside with the knife hidden, the victim had just got into the car, you stabbed him and ran off. The knife in fact went through the victim’s lung, into his pulmonary artery and he bled to death.

[5] You were found quite soon afterwards and voluntarily gave yourself up to the police and co-operated fully with them.

[6] This event has been a tragedy for you and for your family and has been a dreadful tragedy too for the family of the victim. I have read the victim impact reports. As a result of what you did the victim’s mother has lost her son and this has, very naturally, had a dreadful affect on her The children and grandchildren of the victim by his earlier relationship and marriage, have been deprived of their father and grandfather and obviously, and understandably, this has had serious effects on the emotional well-being of the children. All of them and other family members, are suffering from this act.

[7] I want, just because it provides some balance in this situation so far as the victim’s family is concerned, to read a short passage from the victim impact statement of the former wife. She said:

“The problem is, that we know the good side of P and what has come out in the trial is not how we remember P. I am not saying there was never any incidents, but any incidents were few and far between.”

I think it is important that that perspective of the victim be recorded for the sake of his family.

[8] I appreciate that that is not how you saw the deceased and I accept that your dislike of him had, from your perspective, a good cause. You were, as I indicated, earlier, charged with murder. The jury brought in a verdict of manslaughter. Assessing the facts as well as I am able to do so, it is my conclusion that the more likely reason for that verdict was the conclusion that at the time of the incident you lacked murderous intent rather than provocation. That in fact what you intended as you said yourself, was to hurt the victim, to show him what it was like just as he had hurt your sister. That conclusion too I think, is supported by the psychologist’s report. He gives his opinion after speaking to you, that there was no clear intent by you to kill the deceased.

[9] There are aggravating features of this event. The use of the weapon, some degree of premeditation in that you took the deliberate step of going inside and taking this knife and coming back out with it again. I accept that you did not intend to cause the loss to the family of the victim, but only wished to hurt him.

[10] As to mitigating factors, there is your age, the fact that you were always prepared to plead guilty to manslaughter, your remorse, the background of the treatment of your sister as you perceived it, the co-operation with the police and the fact that you have no previous convictions for violence.

[11] Counsel have referred me to a number of decisions and in particular the recent decision of the Court of Appeal in R v Rauf (CA79,96 and 99/01, 19 September 2001) a decision of a five person Court last year. That Court confirmed what has long been held, that in cases of manslaughter there can be no fixed tariff because the circumstances differ so widely from case to case. But some assistance was provided in references made, particularly in paragraphs [60] and [70] to the appropriateness of using as a guide the sentence that would have been imposed had death not ensued. Of course, that can only be a guide because the fact that death did ensue is a feature of the charge that has been brought and a matter that is relevant.

[12] If this had been a case that did not have the mitigating factors that are present here such as your willingness to plead guilty, your youth and so on, then in my view a term of imprisonment of something in the order of between seven and nine years would be perfectly appropriate. However, taking into account all the matters that I have mentioned I conclude that the appropriate sentence to impose in this case is five years imprisonment.

[13] I do not consider this an appropriate case to impose a minimum term of imprisonment.