R v Rawhiti

[2023] NZHC 2068

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2020-092-11035

[2023] NZHC 2068

THE KING

v

HAMUERA RAWHITI

Hearing:

4 August 2023

Appearances:

G Kayes and A Al-Janabi for the Crown

J Kincade KC and T Braithwaite for the defendant

Judgment:

4 August 2023

SENTENCING NOTES OF CAMPBELL J

R v RAWHITI [2023] NZHC 2068 [4 August 2023]

Introduction

[1]    Mr Rawhiti, you pleaded guilty to the manslaughter of your infant son Clarity.1 After a trial in this Court, a jury acquitted you of a charge of murdering Clarity. You also pleaded guilty, in a separate District Court proceeding, to a representative charge of male assaults female,2 and a representative charge of injuring with intent to injure.3 That offending was against Lani Turu, the mother of Clarity.

[2]    My job today, on behalf of the community, is to sentence you for your offending.

[3]    Before I do so, I acknowledge Ms Turu and her and Clarity’s whānau, many of whom are here in court. I will say more about how your offending has affected Ms Turu and her whānau once I have described your offending. I also acknowledge your whānau and supporters who are here with you this morning.

Facts

[4]    I am going to start by describing your offending. Although your offending against Ms Turu was less serious than your offending against Clarity, I am going to start with your offending against Ms Turu because that happened first. I am sorry to you and to others here for the pain that you may feel in hearing what I am about to say about your offending. Sentencing is a public process and it is therefore something that I have to do.

[5]    In June 2019, you began a relationship with Ms Turu. Not long after this, Ms Turu moved to Auckland and began living with you.

The offending against Lani Turu

[6]    In relation to your offending against Ms Turu, you pleaded guilty on the basis of agreed facts. I will now summarise those facts.

1      Crimes Act 1961, ss 171 and 177. Maximum penalty: life imprisonment.

2      Crimes Act 1961, s 194. Maximum penalty: two years’ imprisonment.

3      Crimes Act 1961, s 189(2). Maximum penalty: five years’ imprisonment.

[7]    About a month after you and Ms Turu began living together, you had an argument with Ms Turu in which you accused her of sleeping with someone else. You punched Ms Turu in the head, yelled at her to pick up bottles you had smashed during the argument and threatened to beat her up if she did not do as you said.

[8]    From that point on, you and Ms Turu argued regularly. In October or November 2019, one of those arguments became physical. You pushed and pulled Ms Turu around the house. You rammed her head into a wardrobe door in the lounge. You stomped on her head when she was on the floor. Ms Turu covered her head with her arms until you stopped the attack.

[9]    In January 2020, you again accused Ms Turu of sleeping with someone else. You yelled at her and punched her in the face. Ms Turu was unable to count how many punches followed. She fell backwards onto a bed and held up her hands to deflect your blows. You grabbed Ms Turu by the hair and dragged her down the hallway.

[10]   In the hallway, Ms Turu (who was about four or five months pregnant with Clarity) curled into a ball to protect her head and stomach. As she lay on the floor, you kicked and stomped on her head about three times. You then dragged Ms Turu to the bathroom where you kicked her, using full force, a further two times in the head. The attack left Ms Turu with a swollen face, bruised eyes and sustained bruising on her arms and legs.

[11]   About a week before Ms Turu gave birth to Clarity, you again accused her of infidelity. After arguing, Ms Turu told you she was going to leave. You grabbed her and dragged her from the bedroom into the lounge. You then kicked Ms Turu once in the face, striking the bridge of her nose and across her eye. Her nose began to bleed and her eye later bruised.

[12]   Clarity was born in May 2020. Your violence against Ms Turu stopped at that point.

The offending against Clarity Turu

[13]   I now turn to your offending against Clarity. As the trial judge, I can make factual findings based on the evidence at trial, if not inconsistent with the jury’s verdict.4

[14]   On 20 October 2020, Ms Turu left Clarity in your care when she travelled to Hamilton to visit her family. Clarity was five-and-a-half months old.

[15]   Sometime on the morning of 22 October 2020, you violently and fatally assaulted Clarity. In the course of that assault, you wrapped cello tape around Clarity’s head, shook Clarity, and punched Clarity’s head with a closed fist. You gave that evidence yourself. You also “snapped” Clarity’s arm. That was your evidence, and you said you heard his arm click when you broke it. You also grabbed Clarity by both legs, lifted him up, and then smacked his head down hard on a couch with a solid wooden frame underneath upholstery. Again, that was your own evidence.

[16]   The Crown in its written submissions also refers to evidence that you may have strangled Clarity. There was such evidence, but it went no further than showing that you may have strangled Clarity. I am not satisfied, beyond reasonable doubt, that you did so, and I put that matter to one side.

[17]   At 8.57 am, you accessed a YouTube video entitled “What to do if your baby stops breathing – resuscitation video”. I have no doubt that by this time you had finished your assault on Clarity.

[18]   A few minutes later, at about 9.03 am, you asked to borrow a neighbour’s phone. She told you she had no credit, and you ran back home. You did not at that point seek another neighbour’s help. At the trial, you accepted that you were afraid you would get into trouble and wanted to help Clarity without anyone knowing you had hurt him.

4      Sentencing Act 2002, s 24(1)(a); and Edwardson v R [2017] NZCA 618 at [105]–[107].

[19]   Between 9.04 am and 9.41 am you accessed three more YouTube videos about bronchiolitis in infants and symptoms of infant respiratory distress. You also searched “baby no heart and cold”. I have no doubt that by this time you knew that your attempts to help Clarity or to resuscitate him had been unsuccessful.

[20]   Shortly before 10 am you asked to borrow another neighbour’s phone. In due course, he suggested you call 111. You did so at 10 am and asked for an ambulance. During this call you said that Clarity was awake but not breathing properly and later suggested that his condition had deteriorated during the call.

[21]   The first ambulance arrived at 10.10 am. Clarity was cold and blue in colour. He had no heartbeat.

[22]   A post-mortem examination and additional medical examinations confirmed that the cause of Clarity’s death was blunt force trauma to his head. Clarity suffered bleeding to the brain and spinal cord, bleeding in cavities of his brain and damage to nerves connecting the two hemispheres of his brain. Clarity also suffered multiple bruises on his head, neck, right shoulder, right arm and abdominal wall and diaphragm, and a fracture to his right upper arm.

[23]   The examinations also showed that Clarity had suffered fractures to his left forearm and to his collarbone. There is a dispute as to whether these were caused by your assault. I do not need to resolve that dispute. Given the extent of the violence that you inflicted upon Clarity and the undisputed injuries that resulted, the dispute about the other fractures is irrelevant to sentencing.

The victims

[24]   This morning Mr Kayes read Ms Turu’s statement explaining how your killing of Clarity has affected her. It is clear that the effects have been profound and are ongoing. Her life for a time spiralled out of control, and that was a direct result of your offending. This has affected her wider whānau. Her strength in coming here today is extraordinary.

[25]   William Turu, Clarity’s great grandfather, also provided a statement which I read before this morning. He spoke of the impact of your offending on him. He says that Clarity’s death has taken a huge toll on his whānau. After hearing of the facts from the trial, he is trying to find a way to forgive you.

Starting point

[26]   Mr Rawhiti, determining your sentence involves two steps. First, I will determine what is called the “starting point” for your sentence. This will be based on the seriousness of your offending – basically, it will be based on what you did to Clarity and to Ms Turu.5 Secondly, I will consider whether any adjustments need to be made to that starting point, such as for your prior convictions and for your guilty pleas. This will produce your end sentence.

Starting point: manslaughter of Clarity

[27]   I will begin with your manslaughter of Clarity. There is no guideline judgment for manslaughter. That is because the circumstances of manslaughter can be so varied. The Court of Appeal has said that the seriousness of manslaughter offending can be assessed in two ways.6 One is by reference to other comparable manslaughter cases. The other is by reference to a Court of Appeal judgment in a case called R v Taueki.7

[28]   There were several aggravating factors to the manslaughter. First, your assault of Clarity was sustained. As I said, you wrapped cello tape over his mouth and around his head, punched his head, broke his arm, and slammed his head onto a couch after lifting him up by his legs. This was not a momentary loss of control, and it can only be described as extreme violence. Secondly, you attacked Clarity’s head. Thirdly, Clarity was extremely vulnerable. He was only five and a half months old. He could not roll over by himself or sit unsupported. He was completely dependent on you on that day. Fourthly, Clarity’s injuries were very serious and ultimately fatal. Finally, although you made some effort to assist Clarity once you had finished assaulting him, you waited almost an hour after your first approach to a neighbour before seeking

5      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [45]–[47].

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

7      R v Taueki [2005] NZCA 769, [2005] 3 NZLR 372.

medical assistance. You accepted that you wanted to help Clarity without anyone knowing you had hurt him.

[29]   The Crown’s lawyer and your lawyer referred me to many cases that they said provided useful comparisons to your case.8 I have found the following to be the most relevant. In R v Huata,9 the victim was two and a half years old. He died from a head injury caused by blunt force trauma. The force used by the defendant was severe. The defendant had also delivered other blows that caused bruising to the victim and had bitten the victim in three places. The defendant had called for help relatively quickly. The Judge adopted a starting point of ten years’ imprisonment.

[30]   In R v Mehrok,10 the defendant killed a 14-week-old baby with a severe blow to the head. The Judge adopted a starting point of ten years’ imprisonment.

[31]   In R v Kereopa,11 the defendant was found guilty of manslaughter of a six- month-old baby. The defendant’s actions were unknown, but the cause of death was severe blunt force trauma to the side of the head. The Judge adopted a starting point of ten years’ imprisonment.

[32]   In Woodcock v R,12 the victim was the defendant’s three-month-old daughter. Her death was the result of a skull fracture, caused by sudden impact with a board or padded area. She had other injuries, including eight rib fractures. She also had a range of older injuries. The Judge adopted a starting point of 11 years’ imprisonment for the manslaughter and uplifted that by 18 months for the balance of the offending, and so an overall starting point of 12.5 years’ imprisonment.

[33]   I consider your offending was more serious than that in Huata. Clarity was much younger than the victim in that case, and the range of injuries you inflicted on

8      The Crown relied on R v Roberts [2021] NZHC 146, R v Huata [2017] NZHC 704 and Woodcock v R [2010] NZCA 489. Ms Kincade KC relied on R v Mehrok [2020] NZHC 2722, R v Kereopa [2016] NZHC 1664, R v Welsh [2020] NZHC 2850, R v Archer [2019] NZHC 3146 and R v Paea [2016] NZHC 822.

9      R v Huata [2017] NZHC 704.

10     R v Mehrok [2020] NZHC 2722.

11     R v Kereopa [2016] NZHC 1664.

12     Woodcock v R [2010] NZCA 489.

Clarity  were more serious.    Also, I do not consider that you called for medical assistance relatively quickly.

[34]   Your offending was also more serious than in Mehrok or Kereopa. In those cases, the victims were also defenceless infants, but the defendants do not appear to have inflicted the wide range of serious injuries that you inflicted on Clarity.

[35]   On the other hand, your offending was not as serious as the defendant’s in Woodcock. There the victim’s injuries were even more severe than Clarity’s. The victim also had earlier injuries, which Clarity did not.

[36]   These comparisons indicate that an appropriate starting point for your manslaughter of Clarity is 11 years’ imprisonment. I have also checked this against the Taueki case. The aggravating features of your offending put you in what is called band three of Taueki. In Taueki, band three means a starting point from nine to 14 years’ imprisonment. But Taueki deals with cases of grievous bodily harm, so when it is applied to manslaughter cases it is necessary to make an appropriate adjustment for the fact that the victim died.13 After making that adjustment, band three would start at 11 years’ imprisonment.

[37]I therefore adopt 11 years as a starting point for the manslaughter.

Starting point: offending against Ms Turu

[38]   Nuku v R14 is the guideline sentencing judgment for injuring with intent to injure. It sets out three sentencing bands. The bands depend on how many aggravating features there are to the offending.

[39]   The lawyers, in their written submissions to me, disagreed about how many aggravating features there were in your offending against Ms Turu. In relation to the injuring with intent to injure charge, I find there were three. First, your violence was extreme. You struck Ms Turu many times, including kicking or stomping on her head.

13     R v Tai [2010] NZCA 598 at [12]; Waipuka v R [2013] NZCA 661 at [32]..

14     Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

Your attacks were prolonged and unprovoked.15 Secondly, on each occasion, you attacked Ms Turu’s head. Thirdly, Ms Turu was plainly vulnerable, being pregnant.

[40]   These aggravating factors put your offending in band three of Nuku v R. This indicates a starting point from two to five years’ imprisonment for the injuring with intent to injure charge. I also find assistance in the two cases to which the lawyers referred me. In the first, Clark v R,16 Mr Clark received an overall starting point of four and a half years’ imprisonment for serious and wide-ranging offending against his partner, including three charges of injuring with intent to injure, a representative charge of male assaults female, and a charge of threatening to kill. His offending was more serious than yours. In the other case, Maihi v R,17 Mr Maihi received starting points of between two and two and a half years for each of three charges of injuring with intent to injure. Each incident was similar to your attacks on Ms Turu, but his victim’s injuries were more serious than Ms Turu’s.

[41]   These three cases indicate that, just for one of your attacks on Ms Turu that led to the injuring with intent to injure charge, a starting point of two years’ imprisonment would be appropriate. When I take account of the other attack and of the attacks that gave rise to the male assaults female charge, I consider an appropriate starting point for all your offending against Ms Turu is four years’ imprisonment.

Starting point: totality

[42]   To reach an overall starting point, it is not a simple matter of adding 11 years and four years. I have to stand back and assess the overall culpability of all your offending. When I do so, I consider the overall starting point should be 13 years’ imprisonment. Effectively, this is 11 years for the manslaughter and an uplift of two years for your offending against Ms Turu.

[43]   I now turn to consider what adjustments might need to be made to that overall starting point.

15     In assessing whether violence is extreme, it is relevant that the violence is prolonged or unprovoked: R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372 at [31].

16     Clark v R [2013] NZCA 63.

17     Maihi v R [2016] NZCA 205.

Prior convictions

[44]   You have 19 previous convictions, from 2010 to 2020. Most of these are for dishonesty and property offending. You do have convictions for robbery, although these are quite dated.

[45]   The Crown submitted that an uplift of two to three months is appropriate for your previous convictions. I disagree. The have little relevance to the much more serious offending on which I am sentencing you this morning.  They do not require   a greater deterrent response and they do not indicate much at all about your likelihood of reoffending. I decline to make an uplift.

Guilty pleas

[46]You are entitled to allowances for your guilty pleas.

[47]   In respect of Clarity, you offered to plead guilty to manslaughter in August 2021, but the Crown declined the offer. You then pleaded guilty to manslaughter at the start of the trial. A defendant who is convicted of an offence for which they earlier offered to plead guilty should receive the maximum allowance available at the stage of the proceeding at which the offer was made,18 in this case August 2021. Mr Kayes says that when you made that offer, a trial was then scheduled for October 2021, a trial that eventually had to be re-scheduled for COVID-19 reasons. Nonetheless, I accept Ms Kincade KC’s submission that your offer was still relatively early in the proceeding, given that first you were charged in December 2020, there was extensive disclosure that had to be assessed, and I also take into account in considering how early I should treat that offer, the communication difficulties that I am well aware you experience. For those reasons, I consider that the appropriate allowance for your guilty plea is a 20 per cent discount on the starting point that I allowed for the manslaughter offending.

[48]   For the offending against Ms Turu, you pleaded guilty on 7 July 2022, about four weeks before your scheduled trial. Your plea was entered as part of a resolution

18     Hessell v R [2010] NZCA 450, [2010] 2 NZLR 298 at [41]. The Supreme Court did not comment on this point on appeal: Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

in which other charges were withdrawn. I consider that the Crown is correct that the allowance for your guilty plea for this offending should be no more than 10 per cent calculated against the two-year uplift for that offending.

Remorse

[49]   Your lawyers submit that you should also be given credit for the remorse you have shown for your offending against Clarity.

[50]   It is quite common in manslaughter cases of this sort, involving a parent killing their child, for the defendant to try to minimise their responsibility. You did that in the very early stages of the Police investigation and indeed I consider you did that during the 111 call itself. You lied to Police about what you had done to Clarity and you accepted that during the trial. But I accept that even at those early stages that you never suggested that any other person was at fault.

[51]   Moreover, you most certainly did not try to minimise your responsibility at trial. It was your evidence that gave the court many of the details of what you had done to Clarity. I saw you give that evidence, Mr Rawhiti. I do not consider that you were trying to hide anything. It was also clear to me from your evidence that even during the trial you were very remorseful. Although you have also written me a letter expressing remorse, and others have confirmed that you are remorseful, it is what happened at trial that speaks most to me.

[52]   The Sentencing Act 2002 requires that I take account of your remorse in addition to your guilty plea.19 In the circumstances I have described, a further allowance of five per cent is appropriate in respect of your offending against Clarity.

Personal background

[53]   Mr Rawhiti, I have been given a detailed report from Ms Turner about your background, particularly your childhood. As is so often the case in this court, the report makes for harrowing reading. Your first few years were shaped by frequent and brutal violence by and between your mother and stepfather. You both saw and

19     See also Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

received that violence yourself. You were also neglected by your parents, who at that time were more interested in drinking with their fellow Black Power members than raising their children.

[54]   It is frankly unsurprising that the state uplifted you from that environment when you were five or six, as well as uplifting your sister, and I think many of your other siblings. Nonetheless, that uplifting was an experience that still haunts you. Moreover, over the next ten years, you were shifted around from home to home. In some of these you suffered further abuse. You report that you felt unwanted by almost every foster carer.

[55]   You were discharged from state care when you were 15 or 16. You returned to your mother’s home. She was selling drugs. You were soon taking drugs on a daily basis, first cannabis and then methamphetamine. I just want to acknowledge that your mother is here this morning, and I gather from what Ms Kincade has said that she is doing her best to turn her life around.

[56]   Mr Rawhiti, an important part of the sentencing process is to adjust the starting point so that the end sentence takes into account the sorts of circumstances that I have just been discussing. Those personal circumstances can mean, for example, that your moral culpability or responsibility for your offending is different from others who may be sentenced. The Sentencing Act requires judges to make adjustments for those sorts of matters.

[57]   In your case, your personal circumstances justify some decrease to the starting point. You had a seriously dysfunctional upbringing. Violence was normalised, as was substance abuse. None of these matters excuse what you did. But I am satisfied that these matters contributed to your offending. Your violence, although prolonged and extreme, was not premeditated. Your violence showed an inability to regulate your emotions and behaviour. I consider your background contributed to this.

[58]   It is impossible to assess the extent of this contribution. Many people with your backgrounds lead lives without any of the violence you exhibited. Keeping in

mind the seriousness of your offending, I consider any allowance for that background must be modest.

[59]   The report from Ms Turner, and other letters that I have received in advance of the hearing this morning, show that you are doing your best to lead a better life, Mr Rawhiti. There was also some evidence of that at the trial in March this year. I acknowledge the steps you are taking in that regard. Once again, the Sentencing Act requires me to consider your prospects for rehabilitation. I do consider that the evidence that has been put before me shows that you do have good prospects for continuing on the path that you have charted for yourself over the last 18 months or so.

[60]   Taking both your background circumstances, and the prospects for rehabilitation into account, I consider those warrant an allowance of ten per cent against the starting point that I assessed.

Credit for time spent on EM bail

[61]   You are also entitled to credit for the time that you spent on electronically monitored bail.20 That’s because that time, although not the same as being in custody prior to trial, had some serious restrictions on your liberty and if I do not take it into account in this process then it will not be taken into account in the corrections or parole process.

[62]   There is no fixed formula to be applied. Much turns on the relative restrictiveness of the bail conditions and your compliance with them.21

[63]   You were on EM bail for 19 months. For much of that time, you had exceptions allowing you to attend church twice a week and the gym Monday to Friday.22 You also breached your bail conditions six times, on three occasions being absent from your address.

20     Sentencing Act, ss 9(2)(h) and (3A).

21     Section 9(3A).

22     There were several other exceptions, but they were generally for matters such as attending tangi. I consider these should be put to one side.

[64]   Given that you had only moderately restrictive conditions, and your compliance was only average, an allowance of nine months is appropriate.

End sentence

[65]This brings me to the end sentence.

[66]   I take an overall starting point of 13 years’ imprisonment. I make the following allowances:

(a)For your guilty plea to manslaughter, 20 per cent of the 11-year starting point I adopted for that charge.

(b)For your guilty plea to the charges in respect of Ms Turu, 10 per cent

of the two-year uplift for that offending.

(c)For your remorse for the manslaughter of Clarity, five per cent of the 11-year starting point I adopted for that charge.

(d)For your background, ten per cent of the overall starting point.

(e)For your time spent on EM bail, nine months.

[67]This produces an end sentence of eight years’ imprisonment.

Result

[68]Mr Rawhiti, please stand.

[69]   For your conviction for the manslaughter of Clarity Turu, I sentence you to eight years’ imprisonment. For your conviction on the charge of injuring with intent to injure, I sentence you to three years’ imprisonment. For your conviction on the charge of male assaults female, I sentence you to one year’s imprisonment. These sentences are to be served concurrently, which means that your total sentence is eight years’ imprisonment.

[70]Mr Rawhiti, please stand down.

Campbell J