R v Proude HC Auckland CRI 2008-092-1926

[2010] NZHC 1293

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-092-001926

THE QUEEN

v

JOSEPH PROUDE HERE TEINAKIRAI

Hearing:         25 May 2010

Appearances: J C Gordon SC and N R Webby for Crown

M Edgar for Prisoner Joseph Proude
S Tait for Prisoner Here Teinakirai

Judgment:      25 May 2010

SENTENCING NOTES OF ANDREWS J

Solicitors:           Meredith Connell, PO Box 2213, Shortland Street, Auckland 1140

Counsel:            M A Edgar, PO Box 6462, Wellesley Street, Auckland 1141

S Tait, PO Box 76538, Manukau City, Manukau 2241

R V PROUDE & TEINAKIRAI HC AK CRI 2008-092-001926  25 May 2010

[1]      Mr Proude and Ms Teinakirai, I will not ask you to stand at the moment, please stay seated until I ask you to stand.

[2]      I will try to make my comments to you at a speed at which our interpreter can translate for Mr Proude.   If I am going too fast Madam Interpreter, please let me know.

[3]      Madam Interpreter, before we begin would you please ask Mr Proude and tell me if he wishes me to pause at every sentence, for you to translate, or will it be sufficient if you can keep up as I am going.

[4]      Mr Proude, you appear for sentencing today having been convicted on two charges of manslaughter, one charge of misconduct in respect of human remains, five charges of being a male assaulting a female, and one charge of assault with a weapon.  You pleaded guilty to one of the charges of manslaughter and to the charge of misconduct with human remains on the first day of your trial on the other charges. You were found guilty by the jury on the remaining charges.

[5]      Ms Teinakirai, you were found guilty and convicted on two charges of manslaughter, one charge of misconduct with human remains, six charges of assault

— one of which was a representative charge, three charges of assault with intent to injure – one of those was representative, and two charges of assault with a weapon.

[6]      The maximum penalty for manslaughter is life imprisonment.  The maximum penalties for the other charges range from one year to five years imprisonment.   By any standard this offending is serious and the potential penalties include the most serious one that this Court can impose.

Relevant facts

[7]      I will deal only very briefly with the relevant facts.  The deceased Patricia Joseph was a 35 year old intellectually impaiared woman who was living with you and dependent on you as her caregivers.  Ms Teinakirai received the sickness benefit

that Patricia was entitled to.  You both subjected Patricia to assaults while she was living with you.

[8]      Mr Proude, you hit her on the face, set your two dogs on her and you kicked her.  Ms Teinakirai you hit Patricia in the face, you beat her on several occasions, you punched her in the head and chest and pushed her against the wall, you dragged her down steps in the house by her hair, kicked her in the stomach and hit her with a stick and a hose.

[9]      In January 2008 Patricia was assaulted in the bathroom of your house by either one or both of you.  That left her unable to walk or to eat.  Her death probably resulted from the fact that because of the assault she fell over, suffered a head injury and her airways became obstructed while she was unconscious.  She was unable to move, unable to do anything for herself, unable to eat any solid food, and eventually would have had a seizure and died.  Her deterioration up to her death would have occurred over a period of some days.

[10]     When you found Patricia in this state (that is, lying in the bathroom, unable to move, unable to eat, unable to do anything for herself), neither of you attempted to seek any help or assistance for her.

[11]     When you found her dead you disposed of her body at night.  You wrapped her body in  sheets,  tied  a rock  to  it,  and  dumped  it  in  the Wairoa River  near Clevedon.   Ms Teinakirai you acted as lookout at the house, you helped to load Patricia’s body into the car, and you went with Mr Proude in the car to dispose of the body.  Mr Proude, you drove the car to the parking place near to the river and you carried Patricia’s body over some paddocks to the river where you dumped Patricia’s

body.   The body was found on 20th  January 2008.   By that time it was badly

decomposed.

Victim impact statements

[12]     I have read the victim impact statements from Patricia’s older sister, and mother.   Patricia’s sister, Ngametua, had cared for Patricia for some years.   She

speaks of Patricia’s loving nature and endearing traits of character such as collecting things and putting them in her handbag, making daisy chains, and she speaks of the shock that she and her family experienced when they learned of what Patricia had had to endure.  She has had to have counselling after Patricia’s death, and said she will never forgive or forget what happened.

[13]     Teinakore Joseph is Patricia’s mother.   She describes her anger at you and how much she misses Patricia.  She is learning to deal with this but she, too, will never forgive or forget what you did.

Pre-sentence reports

[14]     I turn first to consider the pre-sentence reports.

[15]     First, Mr Proude.  You are 48 years old, the son of Rarotongan parents and one of five children.  You speak little English and are not able to read or write.  You moved to New Zealand in 1980 and worked in the fishing trade and on commercial charter and passenger ships around the Pacific Islands before you decided to settle in New Zealand.  You worked in a steel supply franchise but from 2006 you had casual labouring jobs.

[16]     The pre-sentence report records that you presented at interview as an angry and embittered man.  You described your relationship with Ms Teinakirai as being sometimes  good  and  sometimes  bad.    You  said  you  were  often  violent  and aggressive towards each other. You described yourself as being a heavy drinker up until the time of Patricia’s death.  You denied any responsibility for Patricia’s death or the injury she suffered.   You said you had acted as a protective guardian of Patricia and you said that her family and neighbours had fabricated the majority of the charges before the Court, and had exaggerated other incidents.  You did not show or express any remorse for Patricia’s death, or the injuries she suffered.

[17]     You were assessed as being at a low risk of offending given the particular circumstances of what occurred.  You are interested in addressing your anger issues and would like to undertake literacy classes.  You asked during your interview, to be

given an opportunity to meet your accusers so that you can explain what you see as your innocence.

[18]     Ms Teinakirai, you are 53 and identify as Cook Island Maori.  You moved to New Zealand when you were 20.  You returned to Rarotonga in 1981.  You met Mr Proude  in  1988  and  you  came  back  to  New  Zealand  with  him  in  2001.    You described Mr Proude as having a bad temper and violent, but nonetheless you said you loved him.  You are partially sighted only, and live on an invalid’s benefit.  You are said to have no dependents.

[19]     The  pre-sentence  report  records  that  you  showed  no  remorse.    You  are assessed as being at a low risk of reoffending, again in the light of the particular circumstances of this offending.  You minimised your involvement in the offending, saying that Mr Proude was more responsible.

[20]     Ms Teinakirai, at my direction and at the request of your counsel, a report was prepared by Dr Sakdalan a clinical psychologist.  The report is in great detail. Dr Sakdalan records that you maintained that you are not guilty of the offences on which you have been convicted, and you consider that a terrible injustice has been done to you.  He records that you accept little responsibility for your offending and you tend to take the stance that you are a victim and you blame Mr Proude.  Again, you did not express any empathy towards the victim of your offending (that is, Patricia), or any remorse.

[21]     Dr  Sakdalan  concluded  that  you  have  developed  attitudes  that  condone violence towards others, you have developed low self-esteem and self-confidence, and you find it difficult to escape abuse.   You portrayed yourself as helpless and powerless.  Dr Sakdalan recommended that you be assessed to attend a programme to address your propensity for violence.  Mr Tait submitted that I should take from Dr  Sakdalan’s  description  of  your  being  tearful  at  the  interview  as  showing  a glimmer of remorse.

Process of sentencing

[22]     I now turn to the process of sentencing.   First, I will talk to you about the general law relating to sentencing; that is, about the purposes and principles of sentencing.   Then I have to decide what sentence is appropriate for each of you, taking those purposes and principles into account.

[23]     Deciding what is the appropriate sentence is a two-step process.   The first step is to establish what we refer to as the starting point.  The starting point is the sentence to be imposed for conviction on the most serious of the charges on which you have been convicted.  In your case, that is the charges of manslaughter.  For the purposes of your sentencing I am taking the two manslaughter charges as what I am calling the “lead offence”.  That is to ensure that there is no sense in which there is any double-counting by considering first one, and then the second manslaughter charge.

[24]     The  second  step  is  to  take  that  starting  point  and  decide  what  is  the appropriate sentence for you, for your offending.  I do this by considering, for each of you, whether there is anything about your offending which makes it more or less serious.  We refer to these as aggravating or mitigating factors and they will lead me to impose a sentence that is greater or less than the starting point.

[25]     I also have to take into account the totality of your offending.  You have both been convicted on a number of charges as well as the manslaughter charges. Your sentence must reflect that.

[26]     I also consider matters that relate to you personally because these may also lead me to adjust your final sentence either upwards or downwards.

[27]     In sentencing you I have to take into account what the law has set out as the purposes of sentencing.  In particular, I have to hold you both accountable, to make you responsible for what you have done.   I have to consider deterrence, that is deterring not just you but others as well, and protection of the community.   I also

have to denounce your offending.  What that means is to tell you that your offending is unacceptable, cannot be accepted, in New Zealand society.  At the same time, one of the purposes of sentencing is to help you both with getting back into the community as useful members of it.

[28]     There are also some general principles of sentencing that must be considered. In your case the most apposite of these are the gravity of your offending, including your own responsibility or culpability), the seriousness of your offending in comparison with other types of offences, and the general desirability of maintaining consistency in sentencing levels.

[29]     I must take into account the information I have from the victim impact statements  and  I  am  directed  to  impose  the  least  restrictive  outcome  that  is appropriate in all of the circumstances.   It is desirable to keep offenders in the community as far as that is practicable with regard to the safety of the community. However, the Court can impose a sentence of imprisonment in order to achieve the purposes of sentencing that are relevant in your case.

[30]     In this case I am satisfied that a sentence of imprisonment is appropriate and that nothing short of a sentence of imprisonment would meet the purposes and principles of sentencing.  Indeed, it has not been submitted to me that any sentence other than imprisonment is appropriate.

Starting point

[31]     Now I come to the starting point.  As I said earlier, I set the starting point by reference to the convictions for manslaughter.

[32]     I have been referred to and considered the sentences imposed in cases where the facts of those cases and their circumstances have some similarity to yours.  It is of course the case that no two sets of facts or circumstances are ever exactly the same.  I will refer to three cases which are, in my view, the more helpful ones in deciding what the starting point should be.

[33]     The first is the case of  R v Filimoehala[1]  which all of the lawyers have referred to.   In that case, five members of a family were all found guilty of manslaughter by an unlawful act, and manslaughter by failing to provide medical care.  They were also found guilty of injuring with intent to cause grievous bodily harm.  They had taken in a mentally ill relative and resorted to violence to correct her behaviour and to take out their general frustrations with the situation over a long period of time.     There is no indication of the starting point adopted but the end sentence of 13 years imprisonment was upheld in the Court of Appeal.  That case was considered by the sentencing Judge as being within the most serious category.

[1] R v Filimoehala CA367/99, 16 December 1999.

[34]     Counsel have also referred to the sentence imposed in R v Witika[2].  There, the accused were found guilty of manslaughter by an unlawful act, manslaughter by failing to provide medical care, and wilful ill-treatment.  They had violently beaten, sexually abused, and generally neglected Ms Witika’s young child over a long period of time ultimately causing her death.   The effective end sentence was 16 years imprisonment.  This case was described as being the most serious case of its kind.

[2] R v Witika [1993] 2 NZLR 424 (CA).

[35]     Then in R v Ngati[3] the two accused were found guilty of manslaughter, guilty of wilful treatment of a child, and guilty of failing to provide the necessaries of life. They had beaten a three-year old child over a two day period.  A starting point of 11 years imprisonment was adopted and the final sentence was eight years and six months imprisonment.

[3] R v Ngati HC Auckland CRI-2006-092-1919 15 June 2007, Lang J.

[36]     So, I turn to look at the circumstances of your offending.  As I said earlier, the  law  requires  me  to  look  at  the  aggravating and  mitigating features  of  your offending.   That is, the things that make it more or less serious.   In your case, I accept that many of the aggravating features put forward in Ms Gordons’s submissions for the Crown are inherent in the charges on which you were convicted. For example, the use of violence and of weapons, the extent of the assaults and the attempt to conceal your offending.  Having said that, those matters will be relevant in considering the totality of your offending.

[37]     There has been a reference to your lack of remorse and the fact that both of you continue to deny your offending, notwithstanding the verdicts of the jury.   I accept that those are not aggravating factors, but nor by the same token can you be given any credit for remorse.

[38]     However, a significant aggravating factor here is the fact that Patricia was completely vulnerable because of her special needs, and she was dependent on you for her care,  and  she trusted  you  to  give her the care that she  required.   That vulnerability existed from the day she came to live with you but it increased hugely after she was immobilised after the last assault.

[39]     I cannot identify any mitigating feature of your offending.  The difficulties of caring for Patricia, with her particular issues, do not excuse or mitigate your offending.  Your own inability to handle Patricia or to cope with her problems does not excuse or mitigate your offending.

[40]     On behalf of the Crown Ms Gordon submitted that I should adopt a starting point of 10 to 12 years imprisonment for each of you on the manslaughter charges. She submitted that you are equally culpable on those charges.

[41]     Mr Edgar on behalf of you, Mr Proude, submitted that the starting point should be eight to 10 years imprisonment.  He submitted that this case is not within the category of the most serious of its kind.  He submitted that rather, it is within a general category of ill-treatment.  He said it is not a case of wanton cruelty, which he said was present in the Filimoehala and Witika cases.  He also submitted, Mr Proude, that  you  were  much  less  violent  that  Ms  Teinakirai.    He  urged  me to  proceed cautiously and to consider the particular facts of this case.

[42]     Mr Tait on behalf of you, Ms Teinakirai, submitted that the starting point should be 13 years imprisonment but I note that that starting point, and that was in his written submissions, included an uplift for your other convictions.   In his submissions today Mr Tait submitted that the starting point should in fact be much lower, starting at eight years, and then uplifted considering factors such as violence and disposing of Patricia’s body.   In his written submissions Mr Tait accepted that

this case was one of prolonged abuse but he pointed, as indeed did Mr Edgar, to the differences between this case and the circumstances existing in other cases.

[43]     Mr Tait also referred me to the case of R v Hokai[4]  where a sentence that is lower than was put forward for this case by the Crown, was imposed.  I do not find that case to be of great assistance to me as the circumstances are somewhat different. The Court there was concerned with a single instance of an assault and there was an early guilty plea.

[4] R v Hokai HC Auckland S4/03 2 May 2003, Priestley J.

[44]     As I have said, I consider that the sentences in Filimoehala and Witika are the most helpful to me as authority.  In both of those cases the abuse of the vulnerable victim extended over a long period and both included two counts of manslaughter. That is what I am confronted with here.  I have abuse of a vulnerable victim, over a long period, and I have two counts of manslaughter.  There is clearly a distinction to be drawn against Witika because in that case the victim was a young child, and there was sexual abuse.    But I do find similarities with the Filimoehala circumstances. This was not a run-of-the-mill case of a person being hit and dying, and that being the manslaughter.  I cannot ignore the particular circumstances of what occurred.

[45]     I have concluded that the appropriate starting point for each of you on the charge of manslaughter is 11 years imprisonment.  In reaching that conclusion I bear in mind that at trial the Crown was not able to identify which of  you was the principal offender (that is, who actually assaulted Patricia causing her to fall over, be unconscious, and be unable to move) and which of you was party to that.  I cannot find  any basis  on  which  to  distinguish  your culpability.    You  both  knew  what happened, I regard you as being equally culpable.  For that reason the starting point is the same of both of you.

[46]     Then, as I said earlier, I also have to take into account the totality of your offending.  It covers a long period of time.  You have both been found guilty on a number of individual, and in Ms Teinakirai’s case representative charges, of violence towards Patricia.

[47]     It is necessary to adjust the starting point to reflect all of the offending.  That means that an uplift (that is, an increase) to the starting point is required.

[48]     For Mr Proude, I have concluded that the starting point must be uplifted to 12 years and six months imprisonment and for Ms Teinakirai, in light of the greater number of offences the starting point must be uplifted to 13 years imprisonment.

Personal matters

[49]     I turn now to consider matters that relate to you personally.

[50]     Ms Teinakirai, you have no previous convictions and you are entitled to some discount for your previous good character.   Mr Tait submitted this morning that you always intended to plead guilty to some charges against you, but in fact you did not and you have continued to deny any offending.   I have concluded that a discount should be applied, in addition to a discount for your previous good character, on the basis of the psychiatric report.  I find support in that report for concluding that your actions may be explained by your own violent family history, a lack of family support, and an inability to escape abuse.

[51]     However, the discount cannot be substantial.  To take account of the absence of previous convictions and the matters I have referred to I have concluded that a discount of 15 months is appropriate, leading to an end sentence of 11 years and nine months imprisonment.

[52]     Mr Proude, you pleaded guilty to the charge of manslaughter by failing to provide medical care, and the charge of misconduct with human remains, at the start of the trial.  On the authority of the Court of Appeal’s judgment in R v Hessell[5]  a guilty plea at that stage may warrant a discount of up to 10 per cent.   Mr Edgar submitted that you had indicated that guilty plea at an earlier stage, and I do recall it being noted in a pre-trial telephone conference in early December 2009.   You are

entitled to a discount for that guilty plea, which I accept did have some impact on the trial.

[5] R v Hessell [2009] NZCA 450 at [18].

[53]     I have concluded that the appropriate discount is 15 months, which is 10 per cent for the guilty plea, leading to an adjusted final sentence of 11 years and three months imprisonment.

[54]     Would you please both stand.

Sentences

[55]     Mr  Proude  on  the  charge  of  manslaughter  by  an  unlawful  act,  you  are sentenced to imprisonment for 11 years and three months.

[56]     On the charge of manslaughter by failing to provide medical care, you are sentenced to 10 years imprisonment.

[57]     On the charge of misconduct in respect of human remains, you are sentenced to one years imprisonment.

[58]     On each of the charges of being a male assaulting a female, you are sentenced to six months imprisonment.

[59]     On the charge of assault with a weapon, you are sentenced to three years imprisonment.

[60]     All sentences are to be served concurrently.   Your effective sentence is 11 years and three months imprisonment.

[61]     Ms Teinakirai on the charge of manslaughter by an unlawful act, you are sentenced to imprisonment for 11 years and nine months.

[62]     On the charge of manslaughter by failing to provide medical care, you are sentenced to 10 years imprisonment.

[63]     On the charge of misconduct in respect of human remains, you are sentenced to one years imprisonment.

[64]     On each of the charges of common assault, you are sentenced to six months imprisonment.

[65]     On each of the charges of assault with intent to injure, you are sentenced to

18 months imprisonment.

[66]     On each of the charges of assault with a weapon, you are sentenced to three years imprisonment.

[67]     All sentences are to be served concurrently.   Your effective sentence is 11 years and nine months imprisonment.

[68]     On behalf of the Crown it was submitted that I should specify a minimum period of imprisonment, that is, a period in which you will not be eligible for parole, and the Crown submitted that that should be two-thirds of the final sentence.

[69]   Under the Sentencing Act 2002 I may impose a minimum period of imprisonment for the purpose of holding you accountable for the harm done to the victim and to the community, to denounce the conduct in which you were involved, to deter you or other persons from committing this type of offence, and to protect the community from you.  Under the law the minimum period imposed may not be more than two-thirds of the full term.

[70]     Our Court of Appeal has said that a minimum period may be imposed where the offending is so serious that release after one-third of the sentence would plainly be an insufficient response in the eyes of the community.  The central consideration must be your level of culpability and whether it has been increased by matters such as unusual callousness, extreme violence, vulnerable or multiple victims, and serious actual consequences.[6]

[6] R v Brown [2002] 3 NZLR 670 (CA); R v Gordon [2009] NZCA 145.

[71]     I have considered what would be, for each of you, the standard non-parole period of  one-third  of  your  sentence  against  the  assessment  in  the  pre-sentence reports  for  each  of  you,  that  you  are  at  a  low  risk  of  re-offending  given  the

circumstances  of  your  offending.    After  extremely  careful  consideration  I have concluded that it is not necessary to specify a minimum period of imprisonment in order to meet the purposes of accountability, denunciation, and deterrence.

[72]     I trust that each of you will be offered, and will undertake, any programmes or treatment that will assist in your rehabilitation.

[73]     Would you please stand down.

Andrews  J