R v Rapana
[2015] NZHC 3331
•18 December 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-092-014382 [2015] NZHC 3331
THE QUEEN
v
ROBERT TIMOTHY RAPANA
Hearing: 18 December 2015 Counsel:
A Perkins for Crown
K Trotter for defendantSentencing:
18 December 2015
SENTENCING NOTES OF KATZ J
Solicitors: Kayes Fletcher Walker Ltd, Manukau
Counsel: K Trotter, Barrister, Auckland
R v RAPANA [2015] NZHC 3331 [18 December 2015]
Introduction
[1] Mr Rapana, you appear for sentence today having pleaded guilty to one count of murder1 and one count of wounding with intent to cause grievous bodily harm.2
[2] When a person is convicted of murder, both the Crimes Act and the Sentencing Act require that they be sentenced to life imprisonment, unless there are special circumstances which mean that a sentence of life imprisonment would be manifestly unjust.3 The maximum penalty for wounding with intent, on the other hand, is 14 years imprisonment.4
Facts
[3] For sentencing purposes I rely on the summary of facts that has been agreed between you and the Crown.
[4] At about 12:30am on Sunday 21 December 2014, you and your wife were at a 21st birthday party at the home address of Rio Davis, in Otara. His cousin, Chevy Davis, was also at the address.
[5] Your wife was standing by a stereo at the rear of the address where most of the people at the party were congregating. She kept changing the music, which annoyed some other people at the party, including Rio and Chevy Davis. Chevy Davis walked up to your wife and confronted her about changing the music. A heated argument ensued. You saw the confrontation and approached Chevy Davis to try and calm the situation down. At that point Rio Davis grabbed you from behind in a headlock and the two of you struggled.
[6] The altercation between you and Rio Davis escalated, with other party goers becoming involved. The confrontation between your wife and Chevy Davis also turned physical, with Chevy Davis punching her in the head several times, which
you saw. Chevy Davis was clearly angry towards your wife and was therefore
1 Pursuant to s 167 of the Crimes Act 1961.
2 Pursuant to s 188(1) of the Crimes Act 1961.
3 Crimes Act, s 172 and Sentencing Act 2002, s 102.
4 Section 188(1).
restrained by other party goers and taken to the front of the property, away from your wife.
[7] The altercation at the rear of the property continued. You stabbed Rio Davis several times with a hunting knife that you had brought to the property. Those at the front of the property became aware that Rio Davis had been stabbed. On hearing this, they let go of Chevy Davis who ran towards the rear of the property. He encountered you and, after a confrontation, you fatally stabbed him. Witnesses observed you to be in an angry state at the time.
[8] After stabbing both Rio Davis and Chevy Davis, you, your wife and another person ran to your vehicle and drove away. You stopped the vehicle to hide the knife, before continuing to drive to an associate’s address. Once at that address you and your wife changed your clothing and washed the clothes you had been wearing. You then drove to your home address, where you were located by police shortly afterwards.
[9] Chevy Davis’s knife wounds were fatal and he died at the scene. Rio Davis was taken to hospital and received medical attention for his stab wounds.
[10] When spoken to by police, you initially denied any knowledge of the stabbings. Ultimately, however, you took the police to show them where you had hidden the knife. You stated during the course of your police interview that you had acted in self-defence because you were scared for your life and that of your wife.
Victim impact statements
[11] I have carefully read the victim impact statements that have been provided to me by Chevy Davis’ parents and also by Rio Davis. They make extremely sad reading.
[12] Mrs Davis describes the huge toll that your actions have had on their family, including on Chevy’s ten siblings who were very close to him and who have been deeply impacted by the loss of their brother. She says that receiving the phone call from family members the night Chevy’s life was taken was the most devastating and
traumatising experience of her life. She feels that the pain the family feels will never subside, because Chevy is no longer with them.
[13] Chevy’s father, Robert Davis’, has also provided me with a victim impact statement. The loss of his son has clearly been devastating for him and the whole family. Grief is now his constant companion.
[14] Rio Davis says that he cannot believe such serious consequences arose from a little argument over something as silly as the music. He says that he will never get over what happened that night, physically or emotionally. He has lasting physical scars and injuries from your attack on him, and he also deeply misses his cousin Chevy, who he was close to. He cannot understand why someone would bring a knife to a family birthday party.
Purposes and principles of sentencing
[15] In sentencing you, I must have regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and an acknowledgement of that offending, and importantly the need to denounce the conduct in which you were involved. I also keep in mind the need to deter others from committing the same or similar offences. I take into account the gravity of the offending which you were involved in, including your level of culpability. I have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels between similar offenders committing similar offences. I am also mindful that I must impose the least restrictive outcome that is appropriate in all the circumstances.
Would a sentence of life imprisonment be manifestly unjust?
[16] In this case, the “lead charge” for sentencing purposes is the murder charge.
[17] As I have already noted, where an offender is convicted of murder, the law requires that they be sentenced to life imprisonment, unless there are special
circumstances which mean that such a sentence would be manifestly unjust.5
5 Crimes Act, s 172 and Sentencing Act, s 102.
[18] Your counsel argues that life imprisonment would be manifestly unjust because your actions were the result of substantial provocation from Chevy and Rio Davis, who physically attacked both you and your wife. Your counsel submits that there were reasonable grounds for you to fear for both your wife and your own life. You were in a highly stressful environment which impaired your thinking. He has referred me to a report from a psychologist which indicates that you were in a state of panic at the relevant time, with stress likely impairing your judgment. Your counsel also points to your record of good behaviour and your genuine remorse as factors adding to the exceptional circumstances necessary to support a finding that life imprisonment would be manifestly unjust. Taking these matters into account, your counsel submits that a finite end sentence of about 11 years imprisonment would be appropriate.
[19] The Crown submits, on the other hand, that there are no exceptional circumstances that would render a sentence of life imprisonment manifestly unjust. It says that the circumstances of your offending were in no way remarkable or exceptional. This was a family function with little prospect of anyone being seriously injured. Indeed, apart from your victims, no one else was seriously injured. On any assessment, the Crown says that the force used was out of all proportion to the actual threat posed to you or your partner.
[20] The Court of Appeal has held that there is a strong presumption in favour of life imprisonment for murder. The standard of manifestly unjust is accordingly a high one, likely to be met only in exceptional cases.6
[21] There appear to have only ever been seven cases in New Zealand where the threshold of manifest injustice has been met:
(a) a case that involved a “mercy killing” where an elderly man killed his wife who was suffering from dementia;7
6 R v Rapira [2003] 3 NZLR 794 (CA) at [121].
7 R v Law (2002) 19 CRNZ 500 (HC).
(b)a case involving a man suffering from a major psychiatric illness, accompanied by psychotic delusions, who killed his elderly neighbour whom he believed was spying on him;8
(c) a case where a mentally impaired woman killed her partner, following a history of being abused by him and others;9
(d)a case where a woman who suffered from various personality disorders killed her husband;10
(e) a case where the offender was a 13 year old boy;11
(f) a case where the offender was a secondary party with a peripheral role in the killing;12 and
(g)a case where the offender was a secondary party who was significantly less culpable than his co-offender.13
[22] The facts of your case are far removed from these types of cases. Although provocation may be taken into account when determining whether a life sentence of murder would be manifestly unjust, a high degree of provocation will be required for that threshold to be met.14 Similarly, excessive self-defence may also be relevant to an assessment of whether life imprisonment would be manifestly unjust, but the circumstances would need to be unusual or extreme.15 I note that there do not appear to have yet been any cases in New Zealand where a finding of manifest
injustice has been based on provocation and/or self-defence.16
8 R v Reid HC Auckland CRI 2008-090-2203, 4 February 2011.
9 R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775.
10 R v Rihia [2012] NZHC 2720.
11 R v Nelson [2012] NZHC 3570.
12 R v McNaughton [2012] NZHC 815; upheld in R v Cunnard [2014] NZCA 138.
13 R v Innes [2014] NZHC 2780 (conviction later overturned on appeal in Baker v R [2015] NZCA
306).
14 Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369 at [55].
15 R v Murray [2015] NZHC 2179; Daken v R [2010] NZCA 212.
16 Daken v R, above n 15; Hamidzadeh v R, above n 14, both suggesting the concepts as possibilities only.
[23] The summary of facts discloses that your wife was punched to her face several times and you were placed in a headlock, from which a struggle ensued. I therefore accept that there was some degree of provocation. There was also at least some element of self-defence, although I accept the Crown submission that self-defence was more relevant to the offending against Rio Davis than Chevy Davis.
[24] You did not initiate the violence which erupted in the house that night and it was clearly a very confronting environment. You may well have been fearful, but you were also clearly angry at the assaults on both you and your wife. In addition you had drunk 13 beers over the course of the evening, which likely impaired your judgment. Your brutal over reaction was probably caused by a combination of these factors.
[25] Up until the point when you pulled out a knife, there was nothing particularly unusual or exceptional about the fight that broke out that night. Unfortunately fights regularly break out at parties and on social occasions, particularly where alcohol is involved. People are provoked. They or their family members may be assaulted. This was a brawl and a fist fight, however. You were put in a headlock and your wife was punched in the head. While that is not irrelevant for sentencing purposes, I note that the only person to introduce a weapon into the fight was you. As I have already noted, other than your victims, no one else, including you or your wife, sustained serious injuries that night. Your response was grossly disproportionate in all the circumstances. As a result of your brutal and impulsive actions a man lost his life that night and another was very seriously wounded.
[26] Taking all of these matters into account, I have not been persuaded that the circumstances were sufficiently unusual or exceptional to warrant a finding that it would be manifestly unjust to impose a sentence of life imprisonment on you.
Minimum Period of Imprisonment
[27] I therefore now turn to consider the appropriate minimum period of imprisonment.
[28] As I have already noted, the minimum period of imprisonment cannot be less than 10 years. It must be set at the level that I consider is reasonably necessary to satisfy all or any one of the following purposes – to hold you accountable for the harm done to the victim and the community by your offending, to denounce the conduct in which you were involved, to deter you and others from committing the same or a similar offence, and to protect the community from you.
[29] Both counsel have referred in their written submissions to a number of cases that they see as appropriate benchmarks. The reality, however, is that the positions taken by the Crown and your counsel on the appropriate minimum period of imprisonment are very close. The Crown advocates for a minimum period of imprisonment of 11 years and your counsel for ten years.
[30] The key aggravating feature is clearly the use of a weapon. There can be no justification for bringing a knife to a party, for whatever reason, and then using it in a fight in which no other weapons were being used. The extent of resulting loss, damage, or harm that occurred is also extremely serious. Chevy Davis lost his life. The severe ongoing impact on his family of that loss is evident from their victim impact statements. Nothing that happens in this Court today can bring back their much beloved son and brother.
[31] Your case bears some similarities to the recent case of R v Murray, which involved the use of a sickle in a fist fight between two groups that had gotten out of control.17 The sentencing judge took the view that a murder conviction had been on the basis of excessive self-defence. Both your case and that case involved a fistfight that escalated, in the context of men who had been drinking, in which the offender brought the weapon into the fight deliberately. In both cases a family member of the offender was under attack, although in your case the attack on your wife had finished by the time of the fatal assault. A minimum period of imprisonment of ten years was
imposed in R v Murray.
[32] I have already held that some elements of provocation and self-defence were present. Although I have found that these factors did not render a life sentence
manifestly unjust, they are nevertheless relevant to setting the minimum term of imprisonment. Despite the repeal of the partial defence of provocation, the Court of Appeal has confirmed that provocation is still a factor to be taken into account at sentencing.18 I reiterate, however, that nothing that occurred at the party justified your extreme response. You obviously also accept that, as you have pleaded guilty to murder rather than defend the charge at trial.
[33] Taking into account all of the matters I have outlined, it is my view that a minimum period of ten years six months’ imprisonment appropriately reflects your culpability.
Uplift for offending against Rio Davis
[34] I now turn to consider whether there should be any uplifts to the ten year starting point.
[35] You are 37 years old. You have only one previous conviction, which dates back to when you were 18 years old. I consider that to be irrelevant for present purposes.
[36] An uplift is appropriate, however, in respect of your attack on Rio Davis. The Crown submits that your minimum period of imprisonment should be uplifted by 18 months to two years to reflect the charge of wounding with intent to commit grievous bodily harm, committed against Rio Davis. Your counsel conceded that some uplift was appropriate in respect of that charge, although he submitted that it should be a small one.
[37] I consider that on a stand alone basis, a starting point of seven years imprisonment would have been justified for your offending against Rio Davis. It was extremely serious offending, involving multiple stab wounds. I must take into account, however, that that offending occurred as part of the same overall incident in which Chevy Davis was murdered.
[38] Taking into account the totality of your offending on that evening, it is my view that an uplift of 18 months for your offending against Rio Davis is appropriate.
Mitigating factors
[39] I now turn to consider what discounts, if any, should be applied to your sentence.
[40] Your pre-sentence report records that you have a close relationship with your siblings, and you are a loving father and husband. You have worked full-time for the past 6 years as a steel worker, and you were the sole provider for your family. Your employer has written a letter in which he speaks very highly of you.
[41] You have taken full responsibility for your actions. The pre-sentence report writer says that you are genuinely remorseful. You have acknowledged the effects of your offending on the victim’s family. You have offered to engage in restorative justice and have acknowledged the very grievous harm that you have caused.
[42] I accept that you are genuinely remorseful and that was likely a factor in your decision to plead guilty at the outset of the trial. As a result of your brutal and impulsive actions that night the Davis family have lost a beloved family member. Your own family will lose the presence of a husband and father in their lives for many years to come. You are no doubt deeply aware of that reality. You will have to live with the consequences of your impulsive actions that night for the rest of your life. In my view a discount of six months is appropriate to reflect your remorse.
[43] You are also entitled to a discount for your guilty plea. Your proposed defence at trial was presumably self-defence and/or that you lacked murderous intent. You pleaded guilty, however, at the outset of the trial. You are entitled to some credit for sparing Rio Davis, the Davis family, and the various other witnesses from having to re-live the tragic events of that night. In my view a one year discount is appropriate for your guilty plea.
Sentence
[44] Mr Rapana, please stand. You are sentenced to imprisonment for life for the murder of Chevy Davis. I impose a minimum term of imprisonment of 10 years six months.
[45] On the charge of wounding Rio Davis with intent to cause him grievous bodily harm, you are sentenced to six years imprisonment. That sentence is to be served concurrently, so the end result is that your minimum term of imprisonment is
10 years six months.
Katz J
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