R v Rangi

[2015] NZHC 1879

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2015-041-000051 [2015] NZHC 1879

THE QUEEN

v

ANNIE RANGI AKA

ANNIE SAVAGE

Counsel:

S B Manning for Crown

E R Fairbrother QC and L P F Lafferty for Prisoner

Sentence:

11 August 2015

NOTES ON SENTENCE OF COLLINS J

Introduction

[1]      Ms Rangi, this morning I am sentencing you in relation to one charge of manslaughter.1  You pleaded guilty to that charge on 9 June 2015.

[2]      In sentencing you I shall:

(1)       Explain your offending.

(2)       Discuss the impact of your offending on members of your whānau.

(3)       Examine your personal circumstances.

(4)       Set out the starting point of your sentence.

(5)       Examine possible adjustments to the starting point.

1      Crimes Act 1961, s 177(1). Maximum penalty is life imprisonment.

R v RANGI  [2015] NZHC 1879 [11 August 2015]

(6)       Explain your sentence.

(7)       I shall also give you a “three strikes” warning, which I am required by law

to give you.

Your offending

[3]      Your victim was your mother, Ms Aileen MacDonald.  She was 70 years old at the time she died.

[4]      On 28 December 2014 you were at your mother’s house in Napier.  The two of you were drinking wine together.  You began discussing family issues, including you expressing your anger at having been abandoned by your mother when you were a child and not being properly protected by her.

[5]      At some time before 8.45 pm the argument escalated to the point where you punched Ms MacDonald to the head with your fist.   Your mother was rendered unconscious.   There is a factual dispute about whether you punched your mother once she fell to the floor and how many times you punched your mother.   The pathologist’s report was not able to determine whether your mother was rendered unconscious from the first punch, or the combination of punches, which caused her to lose consciousness.  What the pathology evidence clearly establishes is that your mother was punched approximately five times to the head and that those blows rendered your mother unconscious.  This pathology evidence is entirely consistent with the statement you made to your brother, John, soon after the incident.  This is not a “one-punch” case in which the victim was rendered unconscious by striking his or her head on the ground or other object.  For the purposes of sentencing you, I am prepared to accept your assurance that you did not punch your mother whilst she was on the ground.  Frankly, however, it makes very little difference if you punched your mother when she was on the ground or on the couch.

[6]      What is clear from the pathology evidence is that you restrained your mother, forcibly, by her wrists and by pressing against her chest and punched her approximately five times to the head when she was in a very vulnerable position.  I accept you then placed your mother in a comfortable position on the couch before

you left her home.  You did not, however, call for medical assistance.  You spent the rest of the night in your car, during which you communicated with whānau members via text messaging and phone conversations on your cell phone.

[7]      At 8.45 pm you sent your niece a text message, saying that you had had a “bad time with Nana and hit her”. You said she was “comatosed”, that “she had a fat lip, black eye, but that she, your mother, had to take ownership”.  You said she was asleep and that you would check in with her tomorrow.

[8]      At about 9.40 pm your niece rang an ambulance.   Ambulance staff found your mother unconscious lying on the couch.  They placed her in an induced coma and took her to hospital.

[9]      The following morning at 7.30 am , you presented yourself at the counter of the  Napier  Police  Station  after  being  persuaded  to  do  so  by  members  of  your whānau.

[10]     Your mother died on 31 December 2014 as a result of blunt force injury to her head.  The autopsy report noted bruising of the neck, upper chest and right and left arms.   There was also facial bruising, bruising under the scalp and subdural haemorrhaging.   The photographs taken before the autopsy show your mother received multiple blows to the head and upper body.  There was also brain swelling and raised intracranial pressure which ultimately led to your mother’s death.

The impact of your offending

[11]     Ms Rangi, I appreciate you continue to have support from members of your whānau, and I acknowledge that many of your family members have consistently attended court hearings.

[12]     You should now appreciate, however, that not all of your whānau have come to terms with your mother’s death, or the circumstances under which she died.  That is understandable as is their feelings of sorrow, betrayal, confusion, anger and resentment at what you have done.  Further, many of them had to endure the intense suffering of watching your mother deteriorate in the intensive care unit of the Napier

Hospital and experience the feelings of guilt and hopelessness when she was taken off of life support.  They have had to come to terms with her untimely death.  I am particularly grateful for the dignified manner in which your sister, Ria Anderson, presented her victim impact statement.

Your personal circumstances

[13]     You are now 52 years old.  You have a significant history of alcohol abuse. You have been involved with the 12 steps program and you were abstinent for a number of years before lapsing back into alcohol use shortly prior to the night of your offending.  You also have a history of childhood sexual abuse and physical and emotional abuse. You have undergone therapy for your sexual abuse.

[14]     In a report provided by Dr Barry-Walsh, he records the complex and volatile relationship between you and your mother.  I will return to this aspect of his report later, but for now I do note that you were subject to neglect and emotional abuse from your mother from a young age, which was most likely linked to your mother’s alcohol dependence.  It also appears that you believe your mother failed to protect you from sexual abuse from a member of your family.

[15]     You have four children, the youngest of whom is just seven years old.  He is in the full time care of your ex-husband, but you have maintained supervised visitation rights with him on a weekly basis while you have been on bail.  You also take pride in your Māori heritage and spiritual beliefs and you draw great support from your culture.

Starting point

[16]     There is no tariff sentence for manslaughter.   Sentences for manslaughter have ranged from conviction and discharge through to life imprisonment.  This range of sentence reflects the wide spectrum of circumstances that can  give rise to a conviction for manslaughter.  What they all have in common is that death has been

an unintended consequence of an unlawful act.2    The extent of the harm resulting

2      R v Efeso HC Auckland CRI-2008-092-7925, 24 October 2008 at [25].

from the offence must be taken into account.3    The challenge of setting a starting point for offending of this kind is illustrated by the fact the Crown initially suggested a starting point of five years’ imprisonment but on further reflection Mr Manning has suggested  a  starting  point  of  eight  years’  imprisonment.    Mr  Fairbrother  has suggested a starting point of three years’ imprisonment.

Taueki methodology

[17]     The Court of Appeal has said that referring to the methodology in R v Taueki4 may be an appropriate reference point when assessing a starting point in some types of manslaughter cases.5

[18]     Although the Court of Appeal has warned that a cautious approach is always required in deciding the applicability of Taueki in any given case, the situation here is one in which reference to the Taueki guidelines may be justified because you struck  your  mother  approximately five  times  in  the  head.6      I  am  satisfied  you intended to cause her serious harm when you repeatedly punched your mother.  Your actions therefore can be classified as involving serious violence.

[19]     In your case I consider the following Taueki aggravating factors are highly relevant when determining your sentence.

Serious injury

[20]     You  intended  to  cause  serious  harm  to  your  mother  when  you  hit  her repeatedly.7    You rendered her unconscious with your punches and she died as a

result of the injuries she sustained which you deliberately inflicted.

3      Sentencing Act 2002, s 9(d).

4      R v Taueki [2005] 3 NZLR 372.

5      R v Tai [2010] NZCA 598 at [11].

6      R v Ioata [2013] NZCA 235 at [25].

7      R v Taueki, above n 4, at [31](c).

Attacking the head

[21]     When you hit your mother, on approximately five occasions you struck her head.  It was the trauma you inflicted to your mother’s head that was the cause of her death.

Vulnerability of your mother

[22]     In  my assessment,  your  mother’s  vulnerability is  a seriously aggravating feature in your offending.   Your mother was obviously vulnerable and this is the most disturbing aspect of your case.

[23]     Your  mother  was  described  as  a  small,  frail  woman,  who  weighed approximately 60 kg.   You were well aware of her vulnerability as she used a mobility scooter and you knew that she had a catheter.  Your mother was on various medications including warfarin, which is a blood-thinning medication and this I accept would have predisposed her to the  development of subdural haematoma, which occurred from the blunt force trauma you inflicted to her head.  She was also intoxicated at the time of the offending, which would also have contributed to the extent of the haemorrhaging.

Domestic situation

[24]     The Court of Appeal in Taueki noted the fact that the violence has occurred in a domestic situation does not reduce the seriousness of conduct.   Although the reference to domestic relationships is generally to relationships between partners, I am satisfied it may also apply to relationships between family members.   I accept that some sort of argument developed between you and your mother, but I must take into account that you attacked your mother in her home, and that as a result of the injuries you inflicted upon her, she died.

Comparable cases

[25]     In R v Rapira the Court of Appeal said:8

… [W]here the death is due to deliberate violence combined with other seriously aggravating factors, the starting point has often been in a range of between six to 12 years.

[26]     In assessing the appropriate starting point for your sentence, I have examined “one-punch” manslaughter cases to see if they provide a comparable guide in setting a starting point for your offending.  “One-punch” cases are those where the punch itself can be identified as the single cause of death.9   The appropriate starting point for “one-punch” cases is usually between three and a half to four years’ imprisonment.10

[27]     However the Court of Appeal has held that a starting point may need to be increased where culpability is higher as a result of an intention to cause really serious harm, the nature of the serious harm actually used and the fact that death resulted.11

[28]     I find your offending to be more serious than the “one-punch” cases for the

following reasons:

(1)The force  applied  exceeded  that  of one  punch.    You  struck  your mother to the head approximately five times.

(2)      Your punches were very powerful.   You knocked your mother out.

The post-mortem identifies blunt force injury to the head as the cause of death.

(3)You appreciated you had rendered your mother unconscious because you placed her body on the couch, placed pillows underneath her

8      R v Rapira [2003] 3 NZLR 794 (CA) at [130] and [132].

9      R v Cooper [2014] NZCA 275.

10     R v Carmichael HC Tauranga CRI-2007-070-2603, 6 September 2007 at [34].

11     R v Cooper, above n 9, at [13]; citing R v Murray [2013] NZCA 177 at [21], referring to R v Tai, above n 5, at [14]-[15].

head and legs, informed your niece in a text message you had had “a bad time with Nana and hit her”, and had left her “comatose”.

(4)You must have intended Ms MacDonald would be significantly incapacitated because you punched her to the head as I have said approximately five times.

(5)       You left your mother on the couch and proceeded to leave the address.

You made no attempt to ascertain the extent of your mother’s injuries. In fact, it was your niece who called the emergency services after you informed her that you had left your mother at the house with a “fat lip, black eye” and “asleep”.

[29]     I have also considered the eight year starting point adopted by Woolford J in R v Tepana.12    In that case Mr Tepana assaulted his stepfather, who he had had a relationship  with  for  over  30  years  and  was  well  known  to  him.    I  find  the aggravating features of that offending are similar to but not identical to your offending.13

[30]     Ultimately, after very careful reflection, I have adopted a starting point of seven years’ imprisonment.   I believe that this starting point is consistent with the Taueki methodology.   It is also a starting point that is comparable with other manslaughter cases, such as Tepana.

Adjustments

Personal aggravating factors

[31]     There are no personal aggravating factors to your offending.  I will deal with your previous convictions with regard to the mitigating factors that are available to

you.

12     R v Tepana [2013] NZHC 1592.

13     At [42]; Woolford J referred to the regional problem of the level of violence in Northland and took that into account when reaching an appropriate starting point for Mr Tepana.

Mitigating factors

Guilty plea

[32]     Although you did not plead guilty until eight months after your arrest, you pleaded guilty after the second pathologist’s report was obtained regarding the post- mortem.  In my assessment, you are entitled to a significant discount for the early guilty plea as you have spared your whānau the pain and anxiety of a trial.   I am prepared to give you a discount of 18 months from the prison sentence to reflect your guilty plea.

Family history and provocation

[33]     Your history of domestic violence and sexual abuse is well set out in the report  provided  by  Dr  Barry-Walsh.     That  reveals  a  volatile  history  in  the relationship between you and your late mother.  Among the other elements of the relationship with your mother, has been the impact of her leaving you and your siblings for four years when you were a child.  That was clearly traumatic and was the subject of the argument when you attacked your mother on the night that led to her death.  Dr Barry-Walsh has determined:

In summary Ms Rangi does not suffer from a psychiatric illness nor was there evidence of a mental illness operative at the time of the alleged offending.    Rather her actions at the time seem psychologically comprehensible in the context of the nature of her relationship with her mother.

[34]     In R v Paton, the Court of Appeal accepted that where an offender has been the subject of sustained domestic physical and emotional violence at the hands of the victim, his or her reaction falls to be assessed by reference to both his or her anger at that violence and the complexity of the background factors that underlie why he or

she has acted as he or she has done.14

[35]     You told Dr Barry-Walsh that when you were striking your mother, you were

thinking “I just wanted my mother to love me as much as the other kids”.  That is wholly indicative of the nature of the very tragic relationship between you and your

14     R v Paton [2009] NZCA 155; see also R v Whiu [2007] NZCA 591 and Tuau v R [2012] NZCA

146.

late mother.  I am very satisfied that your unresolved feelings of anger and betrayal at your mother were the catalyst for your offending.

[36]     I consider that as a result of the abusive history you suffered from an early age you were less culpable than you would have been if you had not been set off by the argument with your mother.15     I also accept that to some extent your mother spoke to you in a way which contributed to you losing control and provoked your behaviour.  In my assessment, a discount of 12 months is appropriate to reflect both the provocative nature of your mother’s behaviour and the deep and unresolved factors in your relationship with your mother that contributed to you losing control.

Remorse and family circumstances

[37]     You  have  offered  to  make  amends  to  your  whānau  by  undertaking  a restorative justice conference.  You describe yourself as having a close bond with your family.  I appreciate that you have a young son, and although he is not under your care, you maintain very regular contact with him.

[38]     I accept that you are genuinely remorseful.  Taking into account your remorse and your family circumstances with the purpose of trying to achieve a rehabilitative outcome to your offending, and in the hope that your whānau will be able to heal and move on from your offending, I am prepared to give you a further discount to reflect these factors and that discount will be a further six months.

Previous good character

[39]     You have three previous convictions which pre-date 2002.  These include a drink  driving  conviction  and  operating  a  vehicle  carelessly  from  2001,  and possession of cannabis in 1985.   I do not consider it would be appropriate to use those three historical blemishes on your record to prevent you from receiving a discount for otherwise a crime-free life.

[40]     This  is  also  supported  by  the  fact  that  you  have  maintained  very  good behaviour while on bail, to the point at which the curfew condition was lifted, and

15     Tuau v R, above n 14, at [48]-[49].

you have maintained employment throughout the time you were on bail.  The fact that in all other respects you have developed into a caring and honest member of society is clearly reflected in the eight testimonials  I have had the privilege of reading about you.  I am therefore satisfied that a further discount of six months to reflect your good character is in the circumstances of this case justified.

[41]     This  brings  the  end  sentence  to  one  of  three  years  and  six  months’

imprisonment.

Overall assessment

[42]     Before  reaching  my final  decision  on  your  sentence  I have  reflected  on whether or not a sentence of three years and six months’ imprisonment reflects the purposes and principles of the Sentencing Act 2002.

[43]     In my assessment, the purposes and principles of the Sentencing Act 2002 set out in ss 7 and 8 of that Act are achieved by the sentence I am about to impose.  In particular, it takes into account your personal background with a partially or wholly rehabilitative purpose.16

[44]     In my assessment, a sentence of three years and six months’ imprisonment

will:

(1)       hold you accountable for the harm you did to your mother, to your

whānau and to the community;17

(2)       promote a sense of responsibility for your offending;18

(3)       denounce your conduct;19

(4)       deter you and others from similar offending;20

16     Sentencing Act 2002, s 8(i).

17     Section 7(1)(a).

18     Section 7(1)(b).

19     Section 7(1)(e).

20     Section 7(1)(f).

(5)       assist in your rehabilitation;21

(6)       take into account the gravity of your offending and your culpability;22

and

(7)be    the   least    restrictive    outcome    that    is    appropriate    in    the circumstances.23

Conclusion

[45]     Ms Rangi, could you please stand now.

[46]     On the charge of manslaughter I am sentencing you to three years and six

months’ imprisonment.

[47]     Before  you  go  I am  required  to  give  you  the  first  of  the  “three  strikes warnings”.  A copy of what I am about to say will be made available to you later today.   Your conviction today constitutes the stage 1 offence for the purposes of s 86B of the Sentencing Act 2002.  From this point if you commit another serious violent offence except murder, you will receive a final warning.  Furthermore, if you receive a sentence of imprisonment for that offence other than a sentence of life imprisonment for manslaughter or preventive detention generally, you will serve that sentence without parole.  If you are convicted of murder you will be sentenced to life imprisonment, which you will have to serve without parole unless this would be manifestly unjust.   If serving that sentence would be manifestly unjust the Judge must specify what minimum period of imprisonment you would serve.   Now you will receive that warning in writing as I have said, later today.

[48]     Stand down.

21     Sentencing Act 2002, s 7(1)(h).

22     Section 8(a).

23     Section 8(g).

D B Collins J

Solicitors:

Crown Solicitor, Napier
Leo Lafferty, Napier for Defendant