R v Paton

[2013] NZHC 21

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2012-016-409 [2013] NZHC 21

THE QUEEN

v

PATRICIA ERICA PATON

Sentence:       21 January 2013

Counsel:         C R Walker for Crown

D J Sharp for Prisoner

Date:              28 January 2013

SENTENCING NOTES OF DOBSON J

[1]      I have to sentence you this morning on your conviction for manslaughter.

[2]      On 14 February 2012, a party developed at your house in suburban Gisborne. There was a good deal of drinking.   You and your long-term partner, Lawrence Moon, had argued during the afternoon.  In the early evening, you left the property with some of the other women for a short period.   On your return, you wrongly accused your partner of attacking your own brother, who had been at the party but had  left  thinking  that  he  had  been  abused  by  Mr Moon.    More  pointedly,  you renewed criticism of your partner for wanting to have sex with another of the women at the party.  That was also a criticism that you accepted at trial was not justified. Your partner attacked you in or around the hallway of your house.  You attempted to

defend yourself and hit back.  I note that the day after the attack, you had facial and

R v PATON HC GIS CRI-2012-016-409 [28 January 2013]

other injuries consistent with having been beaten.  But that was nothing new.  You lived long-term within a violent relationship, and beatings were sadly a routine part of that relationship.

[3]      In any event, on the day in question your partner followed you into the kitchen.  You grabbed two large kitchen knives and, you say, he challenged you to use one of them.  Having dropped one, you stabbed him in the neck with the other. He died quickly from the massive loss of blood.  The jury, correctly on the view I take of the evidence, rejected your claim that your partner had seized the hand in which you were holding the knife and pushed it into his own neck.  The jury also rejected the claim that you acted with a proportionate response in self-defence.

[4]      You fled the scene and hitchhiked to Opotiki, where you presented yourself at the Police station the following day.

[5]      The  lasting  image  I  am  left  with  from  the  trial  is  the  entirely  casual acceptance by all your friends who gave evidence at the trial, and from your own evidence, of the serious level of violence that occurred apparently throughout most of the long-term relationship you had with your partner.   One woman recalled occasions on which she saw you “all bruised up” as if that was a natural alternative to your being, for instance, “all dressed up”.  Another witness spoke of the number of times that she saw or heard from others about you having had “the bash”, again as if injuries from the domestic assaults were an entirely normal part of life.   You thought that a life of violence with your partner was preferable to life for you and your children without him.  Mr Sharp has said this morning that there were times when it was a very happy relationship and you obviously had passionate feelings for him.

[6]      You have never made a complaint or, it seems, sought any intervention to stop the violence in the relationship.  Instead, you hit back as best you could.  I am bound to say those attitudes are seriously wrong and, beyond the death and very serious criminal conviction that has now occurred, the even more serious and longer term  harm  those  attitudes  cause is  the  impact  on  the children  exposed  to  such domestic violence.  Until women in relationships like yours, and those of both sexes

able to support women in your position, unconditionally reject domestic violence, sadly such situations will contribute to the continuation of utterly needless crime and to depriving your children of the more positive environment they are entitled to.

[7]      And I say that, first, readily acknowledging how very much more difficult it is to speak up and complain, than it is to take the line of less resistance in accepting violent relationships.  Secondly, acknowledging the different perspective conveyed by Mrs Moon (that is, the mother of Mr Moon) in her victim impact statement, which complains that you were often the aggressor and that her son was wrongly maligned at trial.

[8]      Some might say, on the evidence at trial, that a cowardly wife-beater who exploited his physical superiority in inflicting injuries got what he deserved.   But that  is  not  the  answer  either.    We  have  laws  and  they  are  to  be  enforced  and respected. There can be no case for taking the law into your own hands.

[9]      So all of that is the context in which I have to assess your offending.   In sentencing you, I am guided by the purposes and principles of the Sentencing Act

2002.  I am mindful of the need to denounce your offending and to deter others.  I have to achieve comparability with similar cases, and in the end I have to impose the least restrictive outcome that is consistent with all of those considerations.

[10]     Here,  as  you  appreciate,  a  term  of  imprisonment  is  inevitable,  and  the question is how long is long enough?  The maximum penalty could be a sentence of life imprisonment.

[11]     The jury rejected your claim that you acted in self-defence, but found that you did not have murderous intent.  Now murderous intent can be present where you do not actually intend to kill, but intend to cause injuries of a type that are likely to kill, and where you are reckless as to whether death does occur. A stab wound to the neck with a large kitchen knife is likely to kill the victim.   You may recall the evidence from the pathologist that the injury was effectively “unsurvivable”.  I treat the jury analysis as recognising that the view as to the risk of death from a stab wound of this kind, by a woman in your position, would not be analysed as it would

be by most of us.  The prolonged history of beatings conditioned you to downplay the risks and consequences of violent attacks, so that a woman in your position would not appreciate the risk of causing death when others, who had not experienced the sad domestic history you had, could reasonably be expected to recognise that risk.

[12]     I accept the jury’s analysis but see the level of violence used in a stab to the neck with a large knife as being at the most serious end of any scale of attacks that might not involve murderous intent.  That means, Ms Paton, that a stabbing of this type, in these circumstances, is only a very short way from murder.

[13]     I have read the victim impact statement from Mr Moon’s mother.  It refers to the real and understandable feelings of loss felt by his family.  They appear to have loved him unconditionally. As part of facing the consequences of your action, I have been told by Mr Sharp that you have read that victim impact statement this morning, but it will remain available to you and I urge that you re-read it and reflect on the loss that you have suffered.

[14]     The first form of comparison is with sentences in similar manslaughter cases. At the end of my notes of this sentencing, I will add an appendix of the six cases I have  considered,  in  all  but  one  of  which  women  who  have  been  subjected  to on-going violence by their domestic partners resorted to stabbing them with knives, in every case with fatal consequences.   Those sentences, some of which were confirmed by the Court of Appeal, involve starting points between four years and six years’ imprisonment.

[15] Your offending is more serious than all but one of those other cases. In two of them, the stab wounds were to the legs of the victim, which would usually not be fatal,[1] and one involved a stabbing to the shoulder.[2]  A further case in this very Court involved two stab wounds to the chest with a smaller knife than you used.[3]   In a fifth

case,  a  small  knife  was  used,  with  the  intention  of  stabbing  the  victim  in  the

shoulder, but penetrating the neck by accident.[4]   The woundings in those five cases, where the starting points were between four years and four years and nine months, were all either readily survivable, or at least there was a real prospect that they would not kill the victim.  Here, thrusting a large knife into the neck was markedly more serious and, as I have said, it would be a murderous attack but for the conditioning to violence and dulled appreciation of its consequences caused in your case by the prolonged exposure to violence.

[1] R v Stone HC Wellington CRI-2005-078-1802, 9 December 2005; R v Tamati HC Tauranga

CRI-2009-087-1868, 27 October 2009.

[2] R v Mahari HC Rotorua CRI-2006-070-8179, 14 November 2007.

[3] R v Woods HC Gisborne CRI-2011-016-000048, 10 June 2011 (sentence upheld by the Court of

Appeal – [2011] NZCA 573).

[4] R v Hu [2012] NZHC 54.

[16]     Because of those distinctions, I cannot accept Mr Sharp’s submission that your case falls within the range of seriousness reflected in those cases, which he argued could lead to a starting point in your case of four years and three months.

[17]     The sixth case, most relied on by the Crown, was one in which the defendant and the deceased had been in a relationship for a year.   There was apparently a pattern of arguing but no history of abuse of the defendant by the victim.   She stabbed him in the chest and it appears he died shortly thereafter.  A guilty plea was entered on the first day of trial.  The Judge’s sentencing notes make no reference to the size of the knife used, and whether there was a prospect that the injury was survivable, or whether the size of the knife and point in the chest at which the victim

was stabbed meant that the injury was inevitably fatal.[5]

[5] R v Brown CRI-2008-020-3130, 24 November 2009

[18]     Now the Judge in that case set a starting point of six years’ imprisonment. That case is worse in the sense that there was no history of physical abuse, and therefore no conditioning of fear on the part of the defendant.  It is perhaps not quite so serious because a stab wound to the chest might have been survivable whereas stabbing with a large kitchen knife in the neck as occurred  here was not.   By comparison with that, and the other cases, the Crown suggests that the starting point should be not less than four years and nine months’ imprisonment.

[19]     In some of those cases, the accused stayed at the scene to do what they could for the victim, whereas you fled the scene immediately after the attack.  That makes

the offending worse in that respect, but I accept it is explicable to an extent.  I treat it

.

as a minor aggravating feature.   In all, I consider by comparison with those other sentences that a term of imprisonment of five and a half years is the appropriate starting point.

[20]     Where manslaughter involves a serious level of violence, it is appropriate to check a starting point that reflects comparable manslaughter sentencings against the range of sentences for grievous bodily harm where the offender intended to cause such harm.[6]   As the Court of Appeal has observed, you ought not to get off with a lighter sentence where your victim died, than if he had  survived an intentional stabbing.[7]   Sentences for inflicting grievous bodily harm are guided by the Court of Appeal’s judgment in R v Taueki.[8]    The analysis there used three bands of relative seriousness for grievous bodily harm offending, the least serious attracting prison

terms between three and six years, band two between five and 10 years, and band three between nine and 14 years. The Court of Appeal listed a variety of aggravating features of such offending, suggesting that the band any particular case fell into should be determined by analysing how many of the potentially relevant aggravating features were present, and also weighing up factors that made the offending less serious.

[6] R v Tai [2010] NZCA 598 at [12].

[7] R v Tai at [20].

[8] R v Taueki [2005] 3 NZLR 372 (CA).

[21]     The aggravating features from Taueki that were present here are the relatively serious level of violence involved, the fact that the attack used a weapon, and that the attack was effectively to the head of the victim in the sense that the neck is, together with the head, the most vulnerable part of a victim’s body.

[22]     As against that, features suggested by the Court of Appeal as potentially lessening the seriousness of the offending that are present here were what could be called “excessive self-defence”, where you have acted in self-defence to an extent that went too far.  There is also an extent to which provocation can be recognised as

a mitigating factor.[9]

[9] On mitigating features of the offending, see R v Taueki at [32].

[23]     The features of the offending place you in the lower end of band two, so that if Mr Moon had survived, the starting point would have been between five and seven years’ imprisonment.  Given the ultimate seriousness of the impact of the injury on the victim, the starting point would have to have been above the bottom of that range and, by analogy with the analysis in Taueki, I would settle at five and a half years’ imprisonment.

[24]     In doing that, I would give substantial weight to the circumstances of the “excessive self-defence”, and that also accords with the credit given to you for failing to appreciate the seriousness of the likely consequences of the type of attack you committed.

[25]     So, on both measures, Ms Paton, the starting point is five and a half years’ imprisonment, recognising that it would have been substantially more but for the sad history of domestic violence you had suffered in the course of the relationship, and which conditioned your attitude to the seriousness of what you were doing

[26]     Next, I turn from the analysis of the appropriate sentence for the offending to any alterations needed to reflect your position as the offender.   In this regard, the pre-sentence report is not encouraging.  You appear to have had issues with alcohol from an early age, and that is reflected in the small number of your previous convictions, which are minor and do not warrant any uplift.   You are assessed as being at risk of re-offending, and the pre-sentence report writer considers you pose a risk of harm to others unless you change your ways.  You are assessed as having a propensity to undertake a further violent relationship of the type ended with your present  offending.   The  report  writer makes  very sensible recommendations  for courses and treatment that would assist you, and I can only commend that they all be offered to you and that you commit to them when that becomes appropriate.

[27]     Mr Sharp argues that you should get credit for being remorseful.  On the view I take of your video recorded interview the day after the killing, and from your evidence in Court, I consider that a large part of your regret for what happened is because  of  the  predicament  you  have  put  yourself  in  by  killing  Mr Moon,  not remorse for the criminality in stabbing him as you did.  So a significant component

is not remorse in the relevant sense for the Sentencing Act – that is, it is not about genuinely facing up to, and accepting responsibility for, your crime.

[28]     Mr Sharp also argued that you can be given credit for the likelihood that you would have pleaded guilty to manslaughter, if that had been offered by the Crown.  I do not accept that any credit can be given for that possibility in your case.  It was open to you to indicate that you would plead guilty to manslaughter, and you never committed to that position.  I agree with Mr Walker that given the requirement from the Court of Appeal in Hessell v R that credit can only be given where there is a formal commitment to plead, it will be unfair to other accused persons prepared to make that commitment in anticipation of receiving a discount, whereas you wanted

to keep your options open to go for an acquittal.[10]

[10] Hessell v R [2010] 2 NZLR 298 (CA).

[29]     You have received a very substantial credit on account of your being a victim of domestic violence, in reducing what would otherwise be the more serious criminality of the offending.  The last aspect of my analysis is whether there is any separate respect  in  which  that  circumstance should  be treated  as  mitigating the sentence for you as the offender.  Apart from a component of your remorse, there is nothing else in your personal circumstances that warrants either an increase or reduction from the starting point.

[30]     Mr Walker has cautioned me against double-counting - that is, recognising in the circumstances of the offending the background of domestic violence and then giving credit for essentially the same matter again.   On the other hand, Mr Sharp invites me to infer that it was counted again in the case of Tamati, one of those to which I have been referred.

[31]     In the end, I am satisfied that there is scope for recognising your status as a victim of prolonged violence from a stronger and bigger person within your relationship over many years, as a separate factor in assessing you as the offender. But it cannot be significant.  I will allow a total of three months’ deduction for the

relevant component of your remorse, and for your own status as a victim of violence,

producing an end sentence of five years and three months’ imprisonment, which I

now impose.

[32]   I can only urge the Corrections authorities to have regard to the recommendations made in the pre-sentence report as to the courses and treatment that would assist you in due course.

[33]     Now, I convicted you at the conclusion of the trial on 6 December 2012 of manslaughter which, in terms of s 86A of the Sentencing Act, constitutes a serious violent offence.   Because of that I have to give you a first warning of the consequences of your being convicted of any serious violent offence committed after I give you this first warning.

[34]     The consequences of this warning are that if you are convicted of any serious violent offence, except murder, committed after you receive this first warning you will receive a final warning.   In addition, if the Judge imposes a sentence of imprisonment for that offence, other than life imprisonment for manslaughter or preventive  detention,  then  you  will  serve  that  sentence  without  parole  or  early release.

[35]     If  you  are  convicted  of  murder,  committed  after  you  receive  this  first warning, you will be sentenced to imprisonment for life.  You must serve the life sentence without parole unless the sentencing Judge considers it would be manifestly unjust to do so.

[36]     If you receive a life sentence without parole you will not be released from prison.  If serving the sentence without parole would be manifestly unjust then the Judge will have to specify the minimum term of imprisonment you will serve.

[37]     The authorities will provide you with a written version of that warning I have been obliged to give you. You may stand down.

Solicitors:

Crown Solicitor, Gisborne

Dobson J

Appendix

Comparable manslaughter sentencings

1.        R v Stone HC Wellington CRI-2005-078-1802, 9 December 2005

The defendant had been in a highly volatile relationship with the victim. They argued after a night of heavy drinking and drug-taking, with the victim verbally and physically abusing the defendant, punching her and pulling her hair.  The defendant ordered the victim to leave the house and threatened to call the Police, but the victim refused.   The defendant took a knife with a

15 centimetre blade,  intending to  scare him  into  leaving,  and  jabbed  the victim in the leg with the knife.   The wound severed an artery and vein, which caused the victim to bleed to death.  The sentencing Judge accepted that, but for severing the artery, it would have been a relatively minor wound and that the chances of cutting the artery were small.  Death was therefore “unlooked for and unexpected”.   The defendant remained at the scene and tried  to  help  the  victim  once  she  realised  the  seriousness  of  the  injury inflicted. The starting point was four and a half years’ imprisonment.

2.        R v Mahari HC Rotorua CRI-2006-070-8179, 14 November 2007

The defendant and her partner had been in a de facto relationship for five years,  characterised  by violence following consumption  of alcohol.   The couple had argued, the victim had punched the defendant in the head whilst holding her in a headlock, then dragged her out of a car and continued to assault her on the ground outside.  In retaliation for that attack, the defendant had smashed some of the windows of the victim’s car.   Later on the same evening, the couple again argued and the victim assaulted the defendant.  She locked herself in a cabin but the victim, after a period, was able to break the door open and the defendant stabbed him in the shoulder with a knife with a

20 centimetre blade, which she had taken from a kitchen drawer.  The stab wound severed an artery and a vein, causing the victim to bleed to death. The sentencing Judge treated the attack as more impulsive than in R v Stone, but the nature of the blow was more deadly.   The Judge considered the

background of abuse that had occurred on the day of the attack, and the misplaced self-defence that led the defendant to taking up the knife, fixing a starting point of four and a half years’ imprisonment.

3.        R v Tamati HC Tauranga CRI-2009-087-1868, 27 October 2009

The defendant and the victim had a de facto relationship of some 17 years, characterised by verbal and physical abuse and numerous recorded family violence reports from the Police.  On the day of the offending, an argument between the couple caused the defendant to call the Police, but the victim pulled the phone cord out of the wall socket.  The defendant armed herself with a knife from the kitchen at the premises, telling the victim she would stab him if he tried to prevent her from phoning the Police, and she then confronted the victim with the knife with the intention of scaring him into leaving the house.  After a brief altercation, the defendant stabbed the victim in the back of his left knee, with the wound severing an artery that caused him to bleed profusely.   The defendant immediately went to get help and attempted to rush the victim to hospital, but the victim died later from the effects of the injury.  The sentencing Judge adopted a starting point of four years’ imprisonment, taking into account the fact that the defendant had only intended to scare the victim with the knife and had no intention to hurt him. Again,  it  was  recognised  that  the  end  result  was  unlooked  for  and unexpected, in that a stab wound of that type could have been a surface cut but, by tragic chance, an artery had been severed.

4.        R v Woods HC Gisborne CRI-2011-016-000048, 10 June 2011

The defendant and the victim had been in a relationship for 10 years, characterised by violence towards the defendant.  The couple argued whilst driving home from a social occasion early one morning, with the victim punching the defendant several times in the face, causing a bloody nose and a swollen lip.  The argument continued when they got back to their home with the victim threatening to leave the defendant, and to return to Auckland.  The defendant grabbed a knife from the kitchen and stabbed the victim twice in his upper chest.  Her explanation, apparently accepted, was that she thought the weapon was a screwdriver at the time she picked it up, and that she was

scared and backed into a corner, believing she would be assaulted again. After the assault, the defendant tried to assist the victim.   The sentencing Judge set  a starting point of four  years and nine months’ imprisonment, treating the case as more serious than Tamati, Mahari and Stone because the stabbing was into the chest of the victim.   The sentence was upheld on appeal.

5.        R v Hu [2012] NZHC 54

The defendant and the victim had been in a relationship for two years, characterised by the victim’s violence towards the defendant extending to Police involvement and a protection order being made against him.  During an argument, the defendant took a small paring knife from the kitchen and used it to stab the victim.  She claimed to have been aiming for the victim’s shoulder but the blade of the knife penetrated his neck, severing the carotid artery which was ultimately fatal.  The sentencing Judge adopted a starting point of four years and nine months’ imprisonment.

6.        R v Brown CRI-2008-020-3130, 24 November 2009

Sufficiently described in [17] above.