R v Palmer

[2016] NZHC 1962

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2016-225-23 [2016] NZHC 1962

THE QUEEN

v

TYRONE JOHN PALMER

Appearances:

R W Donnelly for Crown

H T Young and S Williamson for Defendant

Sentencing:

22 August 2016

SENTENCING AND REMARKS OF NICHOLAS DAVIDSON J

Sentence today

[1]      Mr  Tyrone  Palmer,  you  appear  for  sentence  today  on  one  charge  of manslaughter,  that  you  assaulted  Matthew  Coley  and  thereby  caused  his  death. You may remain seated, until I ask you to stand.

[2]      I do not want to leave you in unnecessary doubt, so I will tell you now that a custodial sentence will be imposed. But the term of that has been affected and influenced  by  what  I  have  heard  in  court  today,  hence  the  adjournment  before I returned a few minutes ago.

[3]      I want to say that I have been much assisted by the submissions for the

Crown by Mr Donnelly, and for you by Mr Young and Mr Williamson.  They are measured and appropriate, and have been helpful to the Court, and considerably so.

R v PALMER [2016] NZHC 1962 [22 August 2016]

[4]      I also want to acknowledge the statements by Mr and Mrs Coley and by Matthew sister, and for his brother.  They are important parts of sentencing, as they disclose a sense of profound loss, but a hope that something will come of this for you and for other young people in particular.

[5]      The Summary of Facts is not in dispute.  On Friday 8 April this year, you and some companions were socialising in Invercargill.  You consumed alcohol, together with a half tab of LSD or Lysergide and a small amount of Cannabis.

[6]      Later, you went into town with some young people.   In the early hours of

Saturday morning, you saw another man speaking with Mr Coley.

[7]      You and your group approached this man and one of the young women in your  group  had  an  altercation  with  him.    He  walked away but  you  and  others followed and confronted him, and you took off your sweatshirt and ran after him. This man was spoken with later and said you acted very aggressively.

[8]      Sometime later you became involved in a discussion with Mr Coley, who it is accepted was intoxicated, but at all times was neither aggressive nor threatening.

[9]      The discussion went on for about 10 minutes before he walked off down

Dee Street.

[10]     At about 1.45am, Mr Coley was walking away from the Barluca Night Club in Dee Street and became involved in an argument with some of the young women.

[11]     He then left the area and walked south on Dee Street.  He was followed by the young women from your group who again confronted him outside the Esk Street Night n Day Store.

[12]     You were outside the Store and became involved in the argument.  You went into the entranceway of the Store and continued to argue with him.

[13]     Mr Coley did not appear to be confrontational at all and it seems he was trying to get out of the situation he was in.  But inside the Store, one of the young

women attempted to push him, and then another pushed him outside onto the footpath.

[14]     You, with the group, followed him and stood around him outside the Store and verbally abused him.

[15]     A young woman from your group then punched him or pushed him in the chest. You and the group stood around him and he was not able to get away.

The punch

[16]     There then followed the incident which has led to your appearing before the

Court for sentence today.

[17]     You punched him once to the head and he fell back onto the Night n Day

Store window, and then went straight to ground.

[18]     He had his hands by his sides when you hit him.   To repeat, he was not confrontational in any way.

[19]     The punch is described and accepted as being delivered with considerable force and it “clearly blindsided the victim” as the Summary records.

[20]     He remained on the ground until ambulance staff arrived and took him to

Southland Hospital.

[21]     You  ran  from  the  scene  and  you  told  someone  you  know  you  had  just “king hit” someone, although I bring to account what Mr Young has just said to me with regard to your attitude and understanding at that time.

[22]     You were stopped by police and security staff in Don Street.  You admitted hitting Mr Coley when first spoken with but said you acted in self-defence. You later changed the story and said the victim, Mr Coley, did not come at you, but you thought he was going to punch you, so you punched him in the head first. That is not an explanation which washes.

[23]     You  refused  a  formal  interview  and  would  not  consent  to  a  medical examination.

Death

[24]     Mr  Coley  died  as  a  result  of  blunt  force  head  injury  resulting  in  acute subdural  haemorrhage  complicated  by  brain  swelling.    The  Summary  of  Facts records starkly “His injuries were unsurvivable”.

[25]     A post-mortem revealed he had no pre-existing medical complaints and his death came from the one punch you delivered.

[26]     This  stark  summary  does  not  allow  really  for  much  elaboration  by  me. It ends with an equally stark statement that you are aged 16 years and you are a student.    You  previously  appeared  before  the  Youth  Court  but  you  have  no convictions as such. There is tragedy on all sides.

Purposes and principles of sentencing

[27]     I am required to apply the purposes and principles of sentencing set out in sections 7 and 8 of the Sentencing Act 2002.

[28]     These are:

(a)       first, the need to hold you accountable for the harm caused by your actions to Mr Coley and to the community as a whole;

(b)secondly, the need to promote in you a sense of responsibility for your offending and acknowledgment of the harm you have caused;

(c)       thirdly, the need to denounce your conduct, and deter both you and others from committing similar offending.

[29]     In my view, this last is the most important part of the sentencing process in this case.

[30]     I must:

(a)      take into account the gravity of your offending, and the degree of your culpability;

(b)I must take into account the need for consistency in sentencing, and how other offenders have been dealt with in committing a similar offences;

(c)      I must take into account the effect of the offending on Mr Coley, and in this case, on those closest to him;

(d)I must impose the least restrictive outcome appropriate in the circumstances.   Your counsel, Mr Young, has pressed that  you be sentenced to home detention and I will explain why that is not an option I consider I finally can adopt.

Two stages

[31]     I will sentence you in two stages, as required by the law.  First, I will set the starting point for this kind of violent offending, having regard to the particular features of this case, every case being different, and then adjusting that starting point to reflect factors relevant to you, including age and your guilty plea.

The starting point

[32]     First, the starting  point.   You  face  a  very serious  charge,  for  which  the maximum penalty is life imprisonment.  There is no single tariff or guideline case for manslaughter, which reflects the very many different circumstances which may bring about such a charge.   It is easy to adopt the expression which is used publicly, in conversation, that your offending falls into the class of case often called “one-punch” and sometimes “king hit” manslaughter cases. Because that is easy to understand, it is the product of one hit which has such, in this case, fatal circumstances.  But even within those definitions, there are variations.

[33]     There is the one punch that results in a confrontation, which you might call a fight,  where  people  are  screwing  up,  and  then  there  is  this  case  where  the “one-punch” comes out of the blue, not seen, not anticipated, and therefore there is no method of protection for the person who receives it.

[34]     There are two approaches taken to determine the starting point in these cases.

[35]     The first involves the application of the principles in a case of R v Taueki,1 which is the guideline judgment for offending involving grievous bodily harm.   This approach  is  open  to  the  Court  if  I am  satisfied  your  offending  was  “serious violence”.2      I  am  satisfied  that  it  was.    The  second  approach  is  to  consider comparable  cases,  and  the  starting  points  reached  by  those  sentencing  courts. The two approaches may be used together to reach the appropriate starting point and the overall context and your level of culpability are crucial considerations.3

Features of the offending

[36]     Your offending exhibits a number of aggravating factors identified in the Sentencing Act  2002  and  in  Taueki.    Mr  Donnelly has  referred  to  these. They include:

(a)       an attack to the head;

(b)      a serious level of violence;

(c)       serious harm (in this case, the most serious extreme harm);

(d)an unprovoked attack, and that the victim could not see or anticipate the blow coming;

(e)       a   vulnerable   victim   (Mr   Coley  was   intoxicated,   outnumbered, surrounded by you and your group, unable to get away);

1      R v Taueki [2005] NZLR 372 (CA).

2      R v Tai [2010] NZCA 598.

3      R v Davis [2015] NZHC 3267 at [33].

(f)      Mr Donnelly says if this is not pre-mediation, there is a build-up which is aggravating.   I do not think for a moment that there was any pre-meditation that you would strike Mr Coley in this way.  But there was aggression evident in your conduct that night.  You were spoiling for some sort of confrontation.  I accept, however, it was not in your mind that it would come to this.

[37]     There are no mitigating factors relevant to the offending itself.   Mr Coley did not provoke you, nor were you acting in defence of yourself or anyone else, despite what has been said.   Intoxication and influence of a drug are not mitigating factors,4 and are said not to have application or be relevant in this case.  I will turn to this as I have instinctive reservations about your consumption of various agents that night, when attached to your inherent vulnerability yourself in a social setting and the way you compulsively behaved that night.

[38]     Some care should be taken with the Taueki approach, mainly because the relevant bands of offending presume that grievous bodily harm is the maximum harm caused.  However, were I to apply the Taueki methodology, without attaching undue weight to the fact that Mr Coley’s injuries were fatal, I would have considered your offending to fall about the middle of Band one and attract a starting point of about four to five years.

[39]     Mr Young has made careful and thorough submissions.  He emphasises that your actions were impulsive, those of a 16 year old youth with little or no thought to the  potentially  dangerous,  here  fatal  consequences,  and  that  goes  some  way to understand what really is inexplicable, that you should pick on Mr Coley and for no reason, blindside him with what turned out to be a fatal punch.  I consider these are factors more particular to you, and better addressed in the context of your youth, which I will come to in the second stage of sentencing.

[40]     Mr Young has submitted that this case properly belongs to the “middle of the road” cases, to which a starting point of between three and four years attaches.5   The

4      Sentencing Act 2002, s 9(3).

5      Kepu v R [2011] NZCA 104 at [9].

Crown, through Mr Donnelly suggests a higher starting point.  The answer, I think lies somewhere between these two positions.    They were both principled submissions.

[41]     I bring  to  bear  that  Mr  Coley  gave  you  ample  opportunity to  stop  your collective antagonising  of him.   You  were not  provoked  and  he  remained non- confrontational despite being pursued, and cornered.  He had no chance to react or to brace himself for such a strike.

[42]     You felled him, but did not attempt to help him and you tried to get away.

[43]     Having reviewed the case law, I consider the cases most like yours carries a starting point in the range of four to four and a half years,6     and I consider the cases of Murray v R,7 and Ioata v R,8 where starting points of five years were reached, is a level of offending beyond yours as more serious in all the circumstances.

Effects on the victim

[44]     The effect on the victim of course was fatal.   Mr Coley died.   But it goes beyond the loss of his life.  He had family and friends, and they have been deeply and  permanently affected  and  have spoken  so  eloquently.   Their  statements  are inevitably distressing in the extreme, and their voice is heard, and you should hear their voices.  He was a well-loved man with much of his life still to lead. And that has been lost.

Conclusion on starting point

[45]     So  when  Mr Young  asks  for  a  starting  point  of  three  and  a  half  years imprisonment and the Crown suggests a range of four to four and a half years,

I come to this.

6      R v McFarland [2014] NZHC 1106; R v Bryenton HC Auckland CRI-2009-004-3080, 7 April

2009; R v Harrison [2014] NZHC 3115.

7      Murray v R [2013] NZCA 177.

8      Ioata v R [2013] NZCA 235.

[46]     In summary, your offending was the confrontation of a man who simply sought to go on his way before he was cornered, and defenceless to your sudden unprovoked and powerful punch, and having regard to the starting points reached in comparable cases, the appropriate starting point here is four years imprisonment.

Adjustment to the starting point

[47]     Mr Young then properly submits there are factors relevant to you personally which warrant a reduction in the starting point.   I refer to some of this material because it is relevant to sentencing but it is also relevant to Mr Coley’s family.  They need to understand what has happened in your life.

Your support

[48]     You completed community work to a high standard recently, as Mr Young says. Your mother and your grandparents express the sadness of bringing you up and having to watch what your mother calls a lonely world to walk in at the moment. Your mother sees the changes in you. She is concerned about the affect of imprisonment and that the nature you have normally disclosed to friends and family of openness and caring about people, would result in your putting your guard up as she says.  She indeed is right that this is a risk of imprisonment.  And she worries about the influences on you.

[49]     But I am struck by the fact that your mother and your grandparents primarily recognise the effect on Mr Coley’s family, and on him.

[50]     Your friends regard you as kind-hearted, caring and protective.   The exact opposite of your conduct this night.

[51]     I have said that am influenced by the report from a Youth Court liaison nurse, who has made it clear that as you have come to know her and trust her, there is genuine remorse, and you have expressed feelings of intense guilt.  I regard that as a very important report.

Psychiatric Report

[52]     You admitted to a psychiatrist that you had smoked about, and this is your words as recorded by the psychiatrist; “six bungs of weed and had taken half a tablet of LSD…” before you came into the city.  You also drank.  You told the psychiatrist that “weed” as you describe it, makes you feel chilled and slows down your thoughts and does not make you aggressive, paranoid or have unusual experiences.  You said you were not in an aggressive mood.  Again, and troubling to me as the sentencing judge, this is inconsistent with the Summary of Facts and your behaviour this night.

[53]     You struggled at school from an early stage because of your ADHD.   You have been disruptive.  You also have been popular.    Your interest in sport in very recent years has simply fallen away, and your ability at sport, I might add.  A report made by a doctor three years ago indicated you may have a significant substance abuse problem.

[54]     You have been bullied in primary and secondary school and your mother has advised the Court that you moved school because of this.

[55]     This  report  says  your  history  is  one  of  hyper  activity,  inattention  and impulsivity and probably most relevant, impulsivity from an early age.  Your ADHD has been evident for much of your life.

[56]     The psychiatrist also observes, and troubling to the Court and I suggest to you and your family, that your tendency to resort to physical aggression quickly and to  enter  into  personal  conflict  makes  you  risky  towards  others,  and  I think  to yourself.  You are seen at risk in a full custodial setting for these reasons and there are  other  risks  which  mean  you  require  close  mental  health  service  assistance. I think Mr Young is quite right in pointing to drug and alcohol assessment and that the mental health services, while you are in custody, should give you all the attention and courses that are available.

Reduction for youth

[57]     I come now to the discounts that are available.

[58]     You were 16 at the time.  At 17, you are still a young man, and your counsel has submitted the sentence should be reduced to reflect your age and the Crown agrees.

[59]     I am assisted by the judgment of the Court in Churchward v R,9  which has been referred to.  This goes to the effect of youth on the relative culpability of an offender, and the appropriateness of the sentence, especially where a sentence of imprisonment is on the table, as it must be in a case like this.

[60]     The prospect of your rehabilitation is greater because of your youth.   But I also bear in mind the effect of imprisonment and the prison system on young people, particularly in your case as you have no convictions as such, and you have never been in custody.

[61]     Again, Mr Young is quite right to point out that the Court has recognised that the reasoning and understanding of people your age must be recognised as relatively less developed. It is not an excuse, but it is something to understand.

[62]     The pre-sentence report does indicate you do remain a moderate risk of harm to others.

[63]     Mr Young submits that your age should attract a reduction of 20 per cent from the starting point, and because Mr Donnelly accepts that, as do I, that is the discount that applies in the first instance.

Disproportionately severe consequences of imprisonment

[64]     Mr Young has sought an additional discount of five per cent on the basis that imprisonment will be disproportionately severe on you given your personal characteristics and your youth.  I accept it will be harder because of your age.  But this is already in part reflected in a discount for your youth.  So I intend to approach the submission in another way.   I will come to that at the conclusion of these

sentencing remarks.

9      Churchward v R [2011] NZCA 531.

[65]     I do accept, to repeat, that with your ADHD and your coping skills and overall psyche and mental state will mean that you will struggle to cope with a prison sentence.

[66]     So, strictly speaking a discount for this would be double-counting but I return to this in sentencing you in the totality.

Previous good character

[67]     Mr Young also seeks a discount for your previous good character and I am influenced by the fact that you have finally responded in the report on your community work  where  you  have  done  well,  aside.   And  there  is  a  bundle  of correspondence from your friends and family which attest to your character.   You have strong support.

[68]     Mr Donnelly says I should bring to account that prior to the fatal assault, you were involved in an unrelated assault which resulted in a Youth Court charge.   Your previous good character is partly a function of your youth, which I have already taken into account.  But I do think a discount of five per cent or thereabouts should apply in your case.  I think the other incident reflects the point of your life you have come to where things were going wrong in a major way.  This is the most major way, but it was happening beforehand.

Remorse

[69]     I accept that a discount for remorse is appropriate, although it has troubled me.  But I have concluded that you do not express yourself well, but the seeds of remorse  to  Mr  Coley’s  family are  properly expressed  in  the  letter,  and  I think Mr Young has made more out of all the facts around this, particularly with the nurse’s letter to which I have referred, to conclude that there should be a recognition by me that there is more than an unsubstantiated claim of remorse, but true remorse, and I do hope that is the case Mr Palmer.  Nothing you can do now, for this family would go further than that.

[70]     You have accepted the Summary of Facts, and this sentencing has proceeded on  that  basis,  but  it  seems  you  have  found  it  very hard  to  grasp  your  part  in Mr Coley’s death.

[71]     I hope restorative justice is a true option.  You are prepared to undertake it, and it really depends of course on Mr Coley’s family, whether they are prepared to undertake it.  Sometimes families of people who are victims do so because they want to know more about the person who took the life or severely injured one of their family members.  Sometimes it is to gain an understanding.  Sometimes it is to have the face-to-face which is so necessary to resolve most conflicts we have in life.  But that is for the family.

[72]     So,  I  will  allow  a  degree  of  remorse  discount  which  would  come  to five per cent.  It is common ground you should then, after these deductions, get the benefit of the full 25 per cent discount available for your guilty plea, which although was not entered at the first opportunity, was entered reasonably promptly.   It is a generous discount, given the apparent strength of the case against you.   But because the Crown acknowledges that it is appropriate, I will proceed on that basis and I think there is justice and warrant to do so.

Reaching an end point

[73]     In summary, I consider that from the starting point of four years, a 20 per cent discount is warranted to reflect your age at the time of the offending and now.  I have allowed  five  per cent  for  your  remorse  and  for  your  good  character  and  those discounts apply before a 25 per cent discount applies for a guilty plea.

[74]     This sounds arithmetical and my final sentence will not be based on such mathematical precision.

[75]     I come to this, in an instant, the lives of Mr Coley, his family and friends changed forever.

[76]     In that instant, your life changed too from a somewhat troubled young man, but not a criminal.  You now carry a conviction for manslaughter by your irrational

violence to a defenceless man.  You have had this profound effect on him and his family.

[77]     This was not a fight that went wrong.  As simply as I can put it, this was a wanton act of violence to a defenceless man and this conduct must be deterred and denounced.

[78]     Taken together, that means that by the calculations I have described, the end sentence would come to two years imprisonment.  But I am entitled to address this matter in the totality and I return to the effect on you of imprisonment while staying as true as I can to the principle consideration for sentence which is deterrence.

[79]     I have concluded the sentence of imprisonment should be 22 months.

Home Detention

[80]     I have indicated at the beginning of this sentencing that home detention will not be imposed or granted.  Mr Young has advocated for that and I need to say why I do not accede to that submission.

[81]     Having reached the sentence that I have, it would be available.  But I do not consider home detention is appropriate.

[82]     I accept that the factors in Churchward v R relevant to an adjustment to the starting point, are relevant to the question whether a short sentence of imprisonment should be commuted to one of home detention, and I am directed to impose the least restrictive outcome appropriate and that is why, in the first place I have reduced my calculations to 22 months and not the higher figure that the Crown sought.

[83]     The Crown correctly emphasises denunciation and deterrence are significant and  must  prevail.    The  sentence  must  demonstrate  that  and  be  a  deterrent  in particular to other young people. The message must go out to young people and to all who are involved in the street or situations such as this, that a strike to the head can cause death, and imprisonment is a likely outcome.

[84]     Such dire consequences for the victim carry serious consequences for the offender.

[85]     I am mindful of the need to promote in you a sense of responsibility for the harm you have caused, I have identified my reservations as to you accepting responsibility for your actions.

[86]     I  do  not  consider  the  purposes  and  principles  of  sentencing  would  be sufficiently met by home detention.

[87]     There is also the record of non-compliance by you.  It is a secondary matter, but I refer to it.

[88]     On  three  occasions  you  breached  bail  conditions  leading  up  to  this sentencing.   You were fortunate not to be remanded into custody on your second appearance for a breach of bail on the 12th  of July.    It appears the only reason you were not remanded in custody was because there was no space for you in the custody of the Chief Executive of the Department of Corrections.   You were warned that continued  breaches  would  not  be  looked  upon  favourably  by  the  Court  when

considering a sentence of home detention.   But they do have some bearing, these breaches, but they are lesser than the primary need, in my view, for deterrence and denunciation.

[89]     So while I consider the appropriate sentence is one of imprisonment, and home detention would not suffice, I recognise the inherent risks of imprisonment to you, and in a comparatively short time you will return to society.  You have family support. You have work available to you.  You have a place to go.  You have a life ahead of you.  You must now respond to prepare for that.  That is largely in your hands.

[90]     I want to conclude before formal sentence is passed by recording again that I am intensely troubled by the reference in the narrative to the use of Lysergide, Cannabis and alcohol by someone of your age, 16 at the time, in the group setting, in the middle of town in the early hours of the morning, and the fact that the Summary

of Facts does not include any conclusion that you were affected in any real way by the consumption of such agents.  I cannot find a factual finding contrary to experts and the facts as they stand.  But I think it must be recognised that the young people, so many of whom are troubled like you, that the consumption of multiple agents such as this must add to the risk of harm to others and indirectly harm to themselves.

[91]     I hope the restorative justice programme will be entered for the sake of

Mr Coley’s family.

FORMAL REMARKS Sentence

[92]     Mr Palmer, would you please stand. [Mr Palmer stands]

[93]     On the charge of manslaughter, I sentence you to 22 months imprisonment. Stand down please.

……………………………….

Nicholas Davidson J

Solicitors:

Preston Russell (Crown Solicitors), Invercargill

Hugh Thomas Young, Invercargill