R v Richards

[2023] NZHC 3625

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2022-075-000367

[2023] NZHC 3625

THE KING

v

JOEY MATARONGIA RICHARDS

Hearing:

11 December 2023

Appearances:

R Guthrie for the Crown

C W J Stevenson & E I Haronga for the Defendant

Sentencing:

11 December 2023

SENTENCING NOTES OF TAHANA J

This judgment was delivered by me on 11 December 2023

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor Hamilton Legal, Hamilton Pipitea Chambers, Wellington

R v RICHARDS (Sentencing notes) [2023] NZHC 3625 [11 December 2023]

Introduction

[1]    Mr Joey Richards you appear for sentencing today having been found guilty by a jury of the murder of your brother, Guy Richards. You will also be sentenced for one charge of dangerous driving,12 you pleaded guilty to that charge at the start of the trial.

[2]    Before I start, ka huri ahau ki te reo rangatira. Ki a rātou ki a wehe atu ki te po, ki tāu teina, a, Guy, moe mai, moe mai, moe mai rā. Hoki atu rā ki Hawaiki nui, Hawaiki roa, Hawaiki pamamao. Ki te whānau pani, ka nui te aroha ki a koutou i tēnei wā pouri. Ma te korowai aroha e manaaki e tiaki i a koutou. Tēnā rā koutou.

[3]    I acknowledge, in our language, the passing of your younger brother Guy. May he return to Hawaiki with his ancestors. To the grieving whānau, may you be embraced in aroha to enable you to navigate the grief of the passing of a loved one. I acknowledge you all here today.

[4]    I also acknowledge the victim impact statements from Guy’s former partner and two of his siblings. They describe the effect of Guy’s passing on his tamariki (children), who are struggling. They are now fatherless. Your siblings have also indicated that they forgive you.

[5]    Before I determine an appropriate sentence, I will outline what happened based on the evidence that I heard at the trial.

What happened?

[6]    Your mother passed away in March 2022. Your whānau gathered in Manaia at your marae for her tangihanga. On the day of her nehu (burial), after leaving the marae, some of your whānau and friends gathered at your whare (home) further up the hill above the marae and had some drinks. Some, including you, stayed up all night drinking.

1      The maximum penalty for dangerous driving is three months’ imprisonment or a $4,500 fine. It also carries a mandatory disqualification from driving for at least six months under the Land Transport Act 1998, s 35(1)(b).

[7]    While your brother Guy had been there in the evening, he had gone home. He returned the next morning. You and a few others were still there drinking and were very intoxicated. Guy went to the marae for breakfast and then returned to your whare. You were angry with Guy because you did not think he had helped out enough during the tangi. You were verbally abusing him and then started pushing him. A fight broke out. You moved throughout the house over about a five minute period while you were fighting with each other. Guy had the upper hand and gave you a hiding. The fight ended when the sliding door broke.

[8]    Guy and two others left your whare (house) in Guy’s car and drove down the hill to Guy’s place. You got in your car and followed them. You were driving erratically. You drove up the driveway and stopped behind Guy’s car. Guy got out of his car and walked towards you. You and Guy were then seen fighting for about a minute. Guy was punching you around the head and chest area. You were seen punching in an upper cut. You had a knife in your hand and the knife struck Guy in the upper abdomen/lower chest area. Guy put his hands on his stomach and saw the blood and turned around to walk back to his house. He fell down. The other two ran to the marae to get help. You held onto Guy and yelled, “get up my bro, get up.” Your brother died at the scene.

[9]    The pathologist explained that the knife had entered and injured the heart and the left lung. Guy would have died very shortly after.

[10]   Your car was seen speeding away from Manaia. You drove it off the side of the state highway and it rolled down a very steep hill, throwing you out of the car. You survived the accident but suffered severe spinal injury. You say that you were trying to end your life.

[11]   The jury found you guilty of murder. I consider that you had reckless intent in that when you stabbed Guy you intended to cause him bodily injury that was more than minor in nature, you knew that your actions were likely to cause his death and you consciously ran the risk that Guy could die as a result of the stab wound.

Approach to sentencing

[12]   I will now outline the approach I am required to take to sentencing. The maximum penalty for murder is life imprisonment.3 The Sentencing Act 2002 (the Act) governs sentencing and provides that I must impose a life sentence with a minimum period of imprisonment (MPI) of no less than 10 years unless it would be manifestly unjust to do so.4 Both counsel accept that this is not a case that engages any of the circumstances in s 104(1) of the Act so that a minimum sentence of 17 years’ imprisonment is not applicable. I therefore turn to consider whether a sentence of life imprisonment with an MPI of ten years would be manifestly unjust and if so, whether a finite period of imprisonment should be imposed with a minimum period of imprisonment.

Is life imprisonment manifestly unjust?

[13]   The Supreme Court has held it is not necessary that both the circumstances relating to the offender and those relating to the offending support a conclusion of manifest injustice before the presumption is displaced.5 Manifest injustice is to be determined by an overall weighing of all of the circumstances relating to the offending and the offender, and neither has the power to veto the other, but one might outweigh the other.6 The Supreme Court said, for example, “it remains possible that the circumstances of the offending may tend towards life imprisonment but be outweighed by overwhelmingly mitigatory circumstances of the offender.”7 This position is consistent with comments from the Court of Appeal in Dickey v R, where the Court said, “manifest injustice is most likely to be found where the offender can point to both mitigating circumstances of the offending and a combination of substantial personal mitigating factors.”8 Suggesting that while manifest injustice is less likely to be established if the circumstances of the offender and offending pull in different directions, it is not impossible.

3      Crimes Act 1961, s 172; and Sentencing Act 2002, ss 102–104.

4      Sentencing Act 2002, s 102(1).

5      Van Hemert v R [2023] NZSC 116 at [56].

6      Van Hemert v R [2023] NZSC 116 at [57].

7      Van Hemert v R [2023] NZSC 116 at [59].

8      Dickey v R [2023] NZCA 2 at [195].

[14]   The threshold of manifest injustice is a high one. In order to reach it, the case must be “exceptional”9 and the injustice must be manifest, that is, clear.10 However, each case turns on its unique circumstances and is to be viewed in light of the purposes, principles, and factors in the Sentencing Act.11 Although qualifying cases must be exceptional, they need not be rare.12

[15]   Counsel for the Crown submits that your case is not one in which it would be manifestly unjust to sentence you to life imprisonment and they submit that the appropriate MPI is one in the range of 10 to 11 years.

[16]   Your counsel submits that yours is a case in which it would be manifestly unjust to sentence you to life imprisonment because of the circumstances of the offending and your own personal circumstances.

[17]   I have reviewed the cases that counsel have referred to me and which I will include in a footnote to these sentencing notes.13 I do not propose discussing all the cases today.

[18]   I have to make an overall assessment of the circumstances of the offending and of you as the offender. Comparisons with other cases can assist, but each case is fact dependent.

[19]I now consider the circumstances of the offending.

9      R v Rapira [2003] 3 NZLR 794, (2003) 20 CRNZ 396 (CA).

10     Dickey v R [2023] NZCA 2 at [167].

11     Sentencing Act 2002, ss 7, 8 and 9.

12     Dickey v R [2023] NZCA 2 at [167].

13 Dickey v R [2023] NZCA 2; R v Reid HC Auckland CRI-2008-090-2203, 4 February 2011; R v  Cole [2017] NZHC 517; R v Simeon [2020] NZHC 1421; R v Simeon [2021] NZHC 1371; R v Te Maru [2020] NZHC 2084; R v Alexander [2018] NZHC 1584; R v Heihei [2017] NZHC 2243; R v Cunnard [2014] NZCA 138; R v McNaughton [2012] NZHC 815; R v Wihongi CA641/10, 28 November 2011; Thompson v R [2020] NZCA 355; R v Smith [2021] NZCA 318; R v Hamidzadeh [2012] NZCA 550; Berkland v R [2022] NZSC 143; Zhang v R [2019] NZCA 507; R v Rapira [2003] 3 NZLR 794, (2003) 20 CRNZ 396 (CA); Tu v R [2023] NZCA 53; Van Hemert v R [2023] NZSC 116; Daken v R [2010] NZCA 212; R v Rihia [2012] NZHC 2720; Orchard v R [2019] NZCA 529; E (CA689/2010) v R [2011] NZCA 13, (2011) 25 CRNZ 411; R v Garson [2020] NZHC 3259; R v Taumata [2023] NZHC 2099; R v Law (2002) 19 CRNZ 500 (HC); R v Knox [2016] NZHC 3136; R v Nelson [2012] NZHC 3570; and Malik v R [2015] NZCA 597.

Circumstances of the offending

[20]   The offending took place in the context of a grieving whānau, on the day after your mother was buried. After the emotions of the tangi you then drank all night and into the next morning. You say that you were also a user of methamphetamine. While I cannot take intoxication into account as a mitigating feature of your offending, I note that it is relevant to the context of the offending.

[21]   You were frustrated with your brother because you thought he should have done more to help out at the tangi. That led to a fight where you were beaten up at your home. It could have ended there but it did not. The Crown says the stabbing was premeditated because you then followed Guy in your car and armed yourself with a knife. Your counsel say that you were provoked and there was excessive self-defence.

[22]   While I accept that you deliberately got in your car and followed Guy to his house and that you must have grabbed a knife either from your car or your house (we do not know where), I also accept what you told the pre-sentence report writer that you cannot remember anything and that you were not in your right mind. You also said you had stayed awake at night when everyone else was sleeping, indicating that you also lacked sleep.

[23]   Your counsel says you were acting with excessive self-defence, [and] that your offending must be seen in the context of the previous fight that morning where you had been given a hiding. Further, when you arrived at Guy’s place and saw him walking towards you, you were again provoked, and fighting started. Your counsel say that grabbing the knife must have been instinctive, otherwise you would have stabbed Guy straight away.

[24]   The fact of the previous fight and that you were fighting at the time of the stab wound does indicate that there was a minor element of provocation. It distinguishes your case from cases where the victim was passive. I accept that you chose to drive down to Guy’s place and to arm yourself with a knife, but that needs to be considered in the context of overnight drinking, you not sleeping and being in an emotional state, and the fact that your mother had only just been buried. I also accept that you only had reckless intent. That your mental state was fragile is further indicated by the fact

you drove your car off the State Highway and tried to kill yourself. I do not consider that those circumstances, taken all together, support the Crown’s submission that the murder was premeditated.

[25]   While you have some previous minor convictions the Crown acknowledges that these are not an aggravating feature of your offending.

[26]Turning to your personal circumstances.

Personal circumstances

[27]   I have been referred to a pre-sentence report, a s 27 report and reports regarding the three restorative justice sessions on 13 October, 20 October and 18 November 2023.

[28]   Both counsel agree that you have shown deep remorse. The pre-sentence report writer observes that you “continually cried for approximately three quarters of the time.” I also observed that you cried throughout the trial. Your remorse is deep and genuine.

[29]   Both counsel also acknowledge your personal  background.  You  are now   46 years old. While you have had the privilege of living close to your marae since age 11, you have also experienced poverty, deprivation and alcohol and substance abuse. You experienced parental substance abuse and neglect, deprivation, and violence. There has been abuse within the whānau which has caused deep mamae (pain) to members of your whānau. You have suffered alcohol and substance abuse.

[30]   You are also part of a whānau, hapū and iwi who have been subject to social, cultural and economic poverty. The current statistics referred to by your counsel speak for themselves.

[31]   Both counsel accept the causal connection between your background and the present offending.

[32]   You have been involved in a restorative justice process that has provided a platform for you to directly apologise to members of your whānau, hapū and iwi. It has also provided a platform for your whānau to share their mamae (pain) and their aroha (love) with you so that you may understand each other’s suffering and can move through to a place of forgiveness and healing. That process has enabled you to know that it is possible to turn mamae (pain) into aroha (love) and awhi (support). That is a long and ongoing journey and you have fully embraced that journey.

[33]   You do have strong rehabilitation prospects. The pre-sentence report writer notes that you are motivated to undertake any interventions that are recommended to address your offending behaviour. Your attitude is to be commended.

[34]   I consider that taking all the circumstances together and considering the context of the offending and your clear willingness to do all that is required to rehabilitate yourself, I am satisfied that a sentence of life imprisonment would be manifestly unjust. You had a childhood of poverty and deprivation. You suffered substance abuse and you were all grieving the loss of your mother at the time of Guy’s death. You had been beaten up by your brother not long before and you were fighting at the time when you stabbed your brother. This is a whānau tragedy. Your whānau do not ask for life imprisonment. They have forgiven you. They too are part of these circumstances and are the community that has been hurt and the community to which you will return.

[35]   Your willingness to engage in rehabilitation will assist in reducing any risk of reoffending and I urge you to take advantage of all that is offered while you are in prison. This will assist you when you return to your whānau.

Finite sentence

[36]   Although I will not be imposing a life sentence, I will be imposing a finite sentence and an MPI.

[37]   In sentencing you, I must take into account the gravity of your offending; the general desirability of consistency with appropriate sentencing levels; the effect of the

offending on the victims; your personal, family, whānau, community and cultural background; and the outcomes of the restorative justice process.14

[38]   Your offending is serious. You stabbed your brother the day after your mother was buried after a night of drinking and then fighting with your brother that morning. Your nieces and nephew are now without a father and they are struggling. Your whānau have forgiven you and want you to forgive yourself and move on. You have a mere (taonga) for your nieces and nephew, Guy’s tamariki (children), which will be passed to them when the time is right.

[39]   After considering the cases counsel have referred to, I consider your offending is less serious than in Simeon15 where the deceased was stabbed in the neck and more similar to Wihongi16 where the deceased was stabbed in the chest. There are elements of provocation given the fighting. Both parties accept there is a causal connection between your background of deprivation and substance abuse, which would justify a discount. I therefore consider that a sentence of 12 years’ imprisonment is appropriate. I turn to consider whether an MPI is also appropriate.

Minimum term of imprisonment

[40]   I may impose an MPI that is longer than the period otherwise applicable under s 84(1) of the Parole Act 2022 (being a third of your sentence) if I am satisfied that that period is insufficient to hold you accountable, to denounce and deter, and to protect the community from you.17

[41]   Again, your offending was serious. You stabbed your brother and his children are now without a father. You must be held accountable for those actions and protection of the community requires that you have sufficient time to engage in the rehabilitative programmes available to you before you are eligible for parole.

14     Sentencing Act 2002, s 8.

15     R v Simeon [2021] NZHC 1371.

16     R v Wihongi [2011] NZCA 592.

17     Sentencing Act 2002, s 86(2).

[42]   I therefore order that you serve a minimum period of seven years’ imprisonment.

Result

[43]Mr Richards, on the charge of murder:

(a)I sentence you to 12 years’ imprisonment.

(b)You are ordered to serve a minimum of seven years of that sentence.

[44]On the charge of dangerous driving:

(a)I sentence you to two months’ imprisonment to be served concurrently.

(b)You  are disqualified from holding or obtaining a driver licence for     6 months.

[45]I also dismiss all outstanding fines.

[46]Please stand down.

Tahana J