R v Orupe HC WN CRI 2009-035-1365

[2009] NZHC 2415

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CRI 2009-035-1365

QUEEN

v

DIAMOND ORUPE

Hearing:         3 December 2009

Counsel:         G Burston and M Ferrier for the Crown

C L Elder for the Prisoner

Sentencing:     3 December 2009

SENTENCING NOTES OF MILLER J

[1]      Ms  Orupe,  you  appear  for  sentence,  at  the  age  of  21   years,   for   the

manslaughter of Koria Matiaha.  I know that you have a hearing difficulty.  I’ll speak

as clearly as I can.   What I say will be written down and you will be given a copy after the sentencing.

[2]      You killed Mr Matiaha in a fight which occurred at his home on 4 June 2009.

A group of people  had  been  drinking  at  the house for  much of  the day. They included Mr Matiaha and his partner Hine Biddle. Hine’s daughter, Te Whairangi Biddle, is your own partner. Accordingly, you knew Mr Matiaha reasonably well.

[3]      The summary of facts records that he and Hine Biddle had been together for a number of years, and their relationship  had  been  characterised  by  a  number  of

R V DIAMOND ORUPE HC WN CRI 2009-035-1365  3 December 2009

violent  incidents  involving  alcohol. In  her  victim  impact  statement  Hine  Biddle acknowledges that both were at fault in these incidents.

[4]      At about 5.20pm on 4 June, a number of people decided to leave the address and drive to a friend’s house to continue partying.   You were one of those people. Hine Biddle was going to join you.

[5]      However, she was restrained by Mr Matiaha, who did not want her to leave.

He  attempted  to  restrain  her,  and  the  struggle  led to him falling on the floor  with

Ms Biddle landing on top of him.  He held her by her hair, refusing to let her go.

[6]      Te  Whairangi  Biddle  intervened,  telling  him  not  to  hit  her  mother. He released her and stood up, and took a swing at Te Whairangi.  He missed. However, the attack on your partner led you to intervene. And I observe at this point that you are an unusually strong woman, and Mr Matiaha was a small man.

[7]      You punched him once in the face in the hall. A struggle ensued, in which the two of you moved down the hallway and outside onto the front lawn, swinging punches at one another as you went. On the lawn you punched him heavily in the face, knocking him unconscious. You maintain that until that point you were acting in defence of another. But as he lay defenceless on the ground, you straddled him and punched him several times in the head.  There is a dispute about whether you did so two times or three times, but nothing turns on that.  What does matter is that you did not content yourself with stopping him.  You attacked him, and you administered a severe beating.

[8]      You then left the address with Te Whairangi, Hine Biddle and others.

[9]      The  police  were  called  during the  struggle  and  they arrived  soon  after  you had left.  They tended to Mr Matiaha, who was swiftly taken to Wellington Hospital where he was diagnosed as suffering from a subdural brain haemorrhage.   He died several days later, having never regained consciousness.

[10]     When  you  learned  that  the  police  wanted  to  speak  to  you,  you  went  to  the station. There  you  admitted  punching  him  as  outlined,  you  said  that  he  did  so because “he killed our buzz”, meaning the the party spirit.  I do not propose to treat that as an aggravating factor, although I do note that you did not claim to be acting in defence of another.  I accept that you were immediately remorseful and remain so.

[11]     You pleaded guilty on 15 October, the manslaughter charge having been laid

at the end of July.

[12]     I have read all the victim impact statements from family members, including Hine Biddle.   They all speak warmly of Mr Matiaha as a genuine and funny person who was very loyal to his family.

Personal circumstances

[13]     The pre-sentence report records that you are of Maori and Samoan descent, and one of ten children in your  family of origin. It appears that  your  family was characterised by violence and drug and alcohol abuse. An alcohol and drug assessment indicates that you yourself have a significant alcohol problem. As I have said, you also suffer from a significant hearing difficulty.

[14]     In  interview  with  the  probation  officer  you  denied  punching  Mr  Matiaha while he lay unconscious on the ground.  But you have admitted that today.

[15]     You left high school at the age of 17 with no formal qualifications, and your employment since then seems to have been occasional.   But you are an outstanding sportswoman  who  with  consistent  application  might  have  achieved  the  highest honours.   I  have  considered  references  from  rugby team-mates,  including  a  police constable, and coaches.   They speak highly of  your talent,  your honesty,  and  your sportsmanship.

[16]     You  admit  to  having had  boxing training,  but  maintain  that  you  gave  it  up after  leaving  intermediate  school  and  have  not  boxed  since.     I  am  not  going  to sentence you on the basis that you are a professional boxer.

[17]     You  have  11  previous  convictions  involving  alcohol,  driving  and  non- compliance.  One of those is a conviction for fighting in a public place in 2007.  You are currently serving a sentence of community work, and you have outstanding fines of $800.  You have not previously served a custodial sentence.

[18]     Your risk of reoffending is assessed as low to moderate.   Clearly there is an issue with alcohol that needs to be addressed.

[19]     The probation officer was asked to prepare a home detention assessment, but was  unable  to  do  that  because  you  did  not  respond  at  that  time  to  a  request  to  an alternative address to that of your grandfather, in Mt Roskill, where you proposed to live with your partner.  Because she was a co-offender in this case, that address was not considered suitable.

Sentencing principles

[20]     There is no guideline judgment, but the  Court  of  Appeal  has  generally approved of sentencing bands that were proposed in the United Kingdom.[1]  In the same case, the Court noted that killings in a domestic or family setting, as this was, or which followed provocation, as this did, attract lower sentences.

[1] R v Edwards [2005] 2 NZLR 709

[21]     It is necessary to consider comparable cases. I have done that, and will list them  in  my sentencing  notes,[2] identifying those  that  I think  most  relevant.[3]    They emphasise  that  I must  pay close  attention  must  be  culpability,  or  blameworthiness which includes any element of provocation or self-defence, the number and severity of blows struck, and the specific cause of death.

[2] R v Paku HC HAM CRI 2005-19-6408 7 September 2006, R v Heemi CA 174/81 30 October 1981, R v Iusitini CA 221/98 25 August 1998, Solicitor General v Kane CA 154/98 23 September 1998, R v Matautia  & Langi HC AK CRI 2006-092-13486 29 November 2007, R v Tuiletufuga HC AK CRI 2005-092-013476 17 February 2006, R v Kumeroa CA64/01 16 May 2001

[3] R  v  Clapperton  HC  WHA  TO20216  9  May  2003,  R  v  Roker  CA  358/92  18  February  1993,  R  v Savage HC WANG T 982142 12 March 1999

[22]     In this case there was a substantial degree of provocation, and you intervened when he had swung at your partner.  I accept that someone needed to restrain him to

protect others, but  I do  not accept that  you needed to punch him for that purpose. Your reaction to his behaviour was excessive.  Your punch caused him to fight you. While fists only were used, you did strike him one very heavy blow. You also hit him  on  the  ground  when  he  was  apparently  unconscious. As I  have  said,  you administered  a  severe beating. Given  that  you  hit  him  very hard  and  he  fell  onto grass, it seems  likely that  the  punch  was the  immediate  cause  of  death. I do  not regard it as an aggravating factor that you left the scene, because I accept that you had no idea that he had been badly hurt.

[23]     In these circumstances, I will adopt a starting point of three and a half years imprisonment.

Aggravating and mitigating factors

[24]     There are no aggravating factors that have not already been taken into account and I will not treat your previous convictions as an aggravating factor in the circumstances. I  accept   Ms   Elder’s   submission   that   they do not   disclose   a substantial propensity for violence, although you are clearly capable of it.

[25]     In mitigation, you pleaded guilty at an early opportunity.  This is one of those cases  where  the  defence  of  another  might  have  seen  an  available  defence,  and  I accept that in the circumstances your guilty plea should be treated as a genuine and a full acceptance of responsibility.  You will receive a discount of approximately one- third   for   that.           I   accept   too   that   you   are   genuinely   remorseful,   but   that   is accommodated by the guilty plea discount.

Decision

[26]     Your sentence is two years and four months imprisonment.

[27]     Ms Elder has asked me to grant you leave under s 86I of the Sentencing Act

to  apply for  cancellation  of  this  sentence,  on  the basis  that I would have imposed home  detention  had  a  suitable  address  been  available. I am unable to do  that,

because I would not have imposed home detention.  Notwithstanding the mitigating factors which are important, this offence demands a sentence of imprisonment.

[28]     Stand down.

Miller J

Solicitors:

Crown Solicitor’s Office, Wellington