R v Poata

[2014] NZHC 1028

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2013-019-000931 [2014] NZHC 1028

THE QUEEN

v

MALCOLM FRASER POATA

Hearing:	16 May 2014
Appearances:	R G Douch for the Crown D L Bates for the Defendant
Judgment:	16 May 2014

SENTENCING NOTES OF GILBERT J

R v POATA [2014] NZHC 1028 [16 May 2014]

Introduction

[1]      Mr Poata, you appear for sentence today having been found guilty by a jury of manslaughter. The maximum sentence for manslaughter is life imprisonment.

Facts

[2]      On the night of 16/17 February 2013, you and a number of others were celebrating the birthday of a prominent member of the Taupiri Motorcycle Club, which was taking place on a property owned by the club.   You are, or were, a patched member of that club.

[3]      In the early hours of the morning the victim, Mr Moana, a club prospect, got into a dispute with Mr Wade, a fellow club prospect.  Mr Wade, who is slightly built, punched Mr Moana a couple of times but did not knock him to the ground.  At this point you came over and punched Mr Moana repeatedly on the head and chest. After knocking him to the ground, you picked him up so that he was in a half-standing position before punching him again.   You knocked Mr Moana back down to the ground. You left him there and made no attempt to assist him.

[4]      Mr Moana died as a result of the injuries he sustained.  These included a 5-6 centimetre bilateral haematoma, a 7 by 5 centimetre bruise on the left side of the chest, an 8 by 1 centimetre bruise on his back between his shoulder blades, deep bruising in the mid to upper back, and fractures of the T3 and T6 vertebrae.  The pathologist’s  evidence  was  that  the  fractures  suffered  by  Mr  Moana  are  those typically caused by car accidents, motor cycle accidents or where people have fallen from a great height.  He said that a very significant amount of force is required to cause these fractures.  The pathologist described the bruising to the left side of Mr Moana’s chest as “very, very heavy”.

[5]      It is implicit in the jury’s verdict, and it is also my conclusion having heard the evidence, that you were responsible for inflicting the majority of these injuries which required multiple punches and resulted in Mr Moana being knocked to the ground twice.  You continued to punch him even after you had initially knocked him down.   You lifted him off the ground to do so.   There can be no doubt that in

punching Mr Moana repeatedly, as you did, you intended to cause him really serious injury.

[6]      I  have  read  and  considered  the  heart-rending  victim  impact  statements prepared by the members of Mr Moana’s family.  You have heard these read to the Court this morning.  Mr Moana is described as a man who, despite all the difficulties he faced in life, cared deeply about his family  and was always kind to others. Understandably, his family continue to struggle in coming to terms with the fact that Mr Moana was so senselessly taken from them in such a violent manner.  They feel his loss acutely, every day.

Approach to Sentencing

[7]      In sentencing you today I am required to have regard to the purposes and principles of sentencing set out in the Sentencing Act 2002.    So far as possible I must  impose a sentence  that  is  consistent  with the sentences  imposed  on  other offenders for similar offending.   In a case such as this, I must impose a sentence that adequately reflects the serious harm that you have caused and denounces serious violent offending of this nature.    I am obliged, nevertheless, to impose the least restrictive outcome appropriate in the circumstances.

[8]      In determining the appropriate sentence, I commence by setting a starting point with reference to other similar cases and taking into account any aggravating or mitigating features of your offending.   From this starting point, I must take into account any factors personal to you which might require an uplift or a discount.

Starting Point

[9]      There is no tariff case for manslaughter because of the range of circumstances in  which  this offence  may be committed.     However,  the Court  of Appeal  has indicated  that  it  is  appropriate  in  cases  where  serious  injury  was  intended,  to compare the offending to the guideline which it has given for serious violence and then to consider other similar cases of manslaughter.

[10]     The Court of Appeal guideline for serious violence sets out three bands of offending  which  attract  different  ranges  of  sentences.      In  order  to  place  the offending  within  a  particular  band,  it  is  necessary  to  consider  any  aggravating features of the offending.

[11]     I consider that your offending involved the following aggravating features:

(a)      First, the severity of the injuries.   Mr Moana died as a result of his injuries.

(b)Second, there was a high level of violence involved.  However, these factors are closely allied in this case I will therefore treat them effectively as one.

(c)       Third, your attack involved punches to the head.

(d)Fourth, I take into account that you were not the sole attacker.  You attacked Mr Moana immediately after he was attacked by Mr Wade. However, I consider that this factor has limited significance in your case.

[12]     Taking these factors into account, I consider that your offending falls into the second band of the Court of Appeal’s decision in Taueki.   This indicates that a sentence of the order of seven years’ imprisonment would be appropriate in this case.

[13]     I  have  considered  other  similar  cases  of  manslaughter,  including  those referred to by Counsel.  These cases also indicate that the appropriate starting point in your case is a term of seven years’ imprisonment.  Both counsel accept that this is the appropriate starting point in your case.

Personal Factors

[14]     I turn now to consider personal factors.  You have four previous convictions for violence including a conviction for wounding with intent, although that is now historical given that it occurred in 1997.  You committed the present offence while

you  were  subject  to  a  sentence  of  intensive  supervision  that  was  imposed  on

15 November 2012.  I consider that an uplift of 12 months is required to reflect these matters.

[15]     You have accepted responsibility for what you have done.   You have also expressed remorse to Mr Moana’s family.   The Crown accepts, as do I, that your remorse is genuine.  I therefore allow a five per cent discount to your sentence to take into account that factor.

[16]     Mr Bates argues that I should reduce your sentence to take into account that you spent nine months on bail in a residential treatment facility.  You were subject to a 24 hour curfew at all times and were not able to leave the facility without direct and constant supervision.   The Court of Appeal has confirmed that in appropriate cases an allowance should be made for time spent under restrictive bail conditions and I consider that this is such a case.  I consider that the appropriate reduction for this is five months.

[17]     This gives an end sentence of seven years and two months’ imprisonment.

Minimum Period of Imprisonment

[18]     Finally,  I  need  to  consider  whether  a  minimum  period  of  imprisonment should be imposed.   Because you are to be sentenced for a term of imprisonment greater than two years the Court may impose a minimum period of imprisonment longer than the period that would otherwise be applicable under the Parole Act 2002. However, this can only be imposed if the Court is satisfied that the normal parole period is insufficient for any of the purposes set out in s 86 of the Sentencing Act.  A minimum period of imprisonment is generally imposed in cases involving serious violence, such as this.

[19]     The Crown submits that a minimum period of imprisonment, being two- thirds of the full term of your sentence, should be imposed.  Mr Bates, on the other hand submits there should be no minimum period of imprisonment or, if one is imposed, it should not exceed half of the end sentence.

[20]     Having regard to all of the factors I have already discussed in setting the sentence, and in particular having regard to the degree of violence involved, your indifference to Mr Moana’s plight at the time and your history of violent offending, I consider that the normal release period applicable under the Parole Act is insufficient to hold you accountable for the harm you have caused, to denounce your conduct and  to  deter  you  and  others  from  this  type  of  very  serious  violent  offending. However, I consider that these purposes of sentencing can be met by the imposition of a minimum period of imprisonment of 50 per cent of your end term namely, three years and seven months’ imprisonment.

Sentence

[21]    Mr Poata, would you please now stand.   Following your conviction for manslaughter I sentence you to seven years and two months’ imprisonment.  You are to serve a minimum of three years and seven months’ imprisonment.

[22]     You may stand down.

M A Gilbert J