R v Sagatea HC Auckland CRI 2009-092-17953

[2010] NZHC 741

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-092-17953

THE QUEEN

v

TUPU SAGATEA

Charge:          Manslaughter

Plea:               Guilty

Appearances: Simon Mount for Crown

Jonathan Down for Prisoner

Sentenced:     20 May 2010

Home Detention (period to be fixed at hearing on 29 July 2010)

SENTENCING NOTES OF HARRISON J

SOLICITORS

Meredith Connell (Auckland) for Crown

Public Defence Service (Auckland) for Prisoner

R V SAGATEA HC AK CRI-2009-092-17953  20 May 2010

Introduction

[1]      You have pleaded guilty, Mr Sagatea, to one count of manslaughter.   You know that the maximum term of imprisonment which I can impose is life.   That maximum reflects society's view about the sanctity of a person's life.

[2]      Today, as Mr Mount has said, is one where we have to acknowledge the fact that you killed a man.   I must impose the sentence of the Court accordingly.  But today is also, as Mr Down has said, incredibly sad.  It is incredibly sad because we acknowledge the death of an innocent man; we acknowledge the presence in Court of his widow and members of her family; we acknowledge also in Court today the presence of your family and friends and supporters who have come for you today. Also we acknowledge the officers in charge of the case and those who have an interest here today.

[3]      Before embarking on the formal parts of the sentence, Mr Sagatea, I want to pay my tribute to Mr Mount for his very balanced argument and to Mr Down for what he has done on your behalf.  As I said to you before, you could not have had better representation.

Facts

[4]      I must deal firstly with the facts.  They fall within a very narrow compass.

[5]      On 1 November 2009 you were at a nightclub in Otara.  You had performed there as a drummer in a band.   You had been drinking that night.   Later you and others went to the car park at about 3-3.30 am.  There were a number of people there. Among them was Mr Peauvasa.   I do not know whether he was known to you; I assume he was not.  But, in any case, he approached you and asked for a ride home to West Auckland.

[6]      The CCTV evidence is that at some stage Mr Peauvasa walked away and he was followed by you. You then returned to your friends and Mr Peauvasa followed you.  With no warning, as Mr Mount has said, you turned and struck him one blow.

It caused him to fall.   While he did so, the fatal mechanism was implemented. Effectively a critical cord snapped.  He fell to the ground.  You, to your great credit, came immediately to his aid.  You were particularly concerned when you saw that he appeared to be unresponsive to assistance.   An ambulance was called and he was taken to hospital.  But he was already dead by that stage.

[7]      Your explanation to the police, and I accept it, was that when you refused Mr Peauvasa a ride home he began swearing at you in the Samoan language.  You felt insulted by what he said.  You became frustrated and you punched him.  Both of you paid the ultimate price - Mr Peauvasa with his life; you with the stain that will be with you forever of taking it.

Starting Point

[8]      Against those facts I must fix the starting point for your sentence.  Mr Down will have explained to you what the starting point means.  But for your benefit and others in the Court, it means the term of imprisonment that would be appropriate to reflect the circumstances of the crime before any favourable factors are taken into account.  It is a measure of your blameworthiness or culpability looking at the act in isolation.  I trust you understand that.

[9]      As  both  of  the  lawyers  have  said,  there  is  no  sentencing  tariff  for manslaughter.  Sentences in this Court have ranged, as I pointed out to both lawyers this  morning,  from  the  case  of  Boreham[1],  where  there  was  a  conviction  and discharge, right through to life imprisonment.   However, there is a degree of consensus that the starting point is in the range of three to four years.  I do not need to recite the facts of other cases to you.  I am familiar with them.

[1] R v Boreham HC Rotorua, T104/93, 20 April 1994.

[10]     Fixing the starting point will take into account the aggravating factors.  It is of  particular  relevance  here,  as  Mr Mount  says,  that  you  were  not  under  any immediate threat.  Mr Peauvasa was looking away.  You struck out in anger.  It was

not a case of true provocation.   I do accept, though, that it was a spontaneous reaction.

[11]     As  you  listened  to  the  lawyers  you  will  have  realised  that  your  crime reflected or brought to a head two features of your life which have led you into trouble in the past - one is your inability to deal with alcohol; the other is your inability to deal with anger.  Both of them caused this dreadful event.  I accept, of course, Mr Sagatea, that you had no intention of killing Mr Peauvasa.  I accept that you did not mean to harm him.  Those consequences were probably the furthest thing from your mind at the time.  Your reaction immediately afterwards shows that you did not mean him any physical ill-will.

[12]     Taking all those factors into account, and drawing on my own knowledge of other cases, I am satisfied that an appropriate starting point for your sentence is three years imprisonment.

Mitigation

[13]     Against that, Mr Sagatea, I must take into account in your favour what are called mitigating factors.  Those are features of the case that are personal to you.

[14]     First, there is your plea of guilty.  It was entered immediately.  It is a sign of your shame, your remorse and your sorrow.  As Mr Down said, you are devastated by what you have done.  His sentiments are confirmed by Mr Mike Hinton who is the Restorative Justice Manager with the Manukau Urban Mäori Authority.  He has written to me summarising his experiences with you and Mrs Peauvasa.  I am going to read out for the benefit of those in Court what he has to say:

Tënä koe Your Honour

I have been involved in Restorative Justice for more than eight years and this is the first time that I have been moved to write on behalf of both the victim and offender, whom did not participate in a Restorative Justice Conference.

I found the offender remorseful and genuine in his desire to apologise to the deceased's family.   When I interviewed him he was clearly upset and distraught over the incident, and the effects of his actions.  He was extremely

apologetic and wished to convey to the deceased's family his shame and sorrow over what he had done.

[15]     I am going to come back to the rest of the letter in a minute.  In any event, you are entitled to a substantial credit for that plea of guilty.

[16]     The second factor counting in your favour is your character.  Mr Mount has correctly pointed out that you have a previous conviction for assault, but at a minor level, and one for driving with excess breath alcohol.  As I have pointed out, they are reflections of the two vulnerable parts of your character.  But they do not stand in the way of recognising that you are a person of exemplary qualities.

[17]     You are 33 years of age.  You live with your partner and your mother.  You have never been a source of trouble for the authorities in the past.  To the contrary, you have left an extraordinary impression on those with whom you have worked and on  the  wider  community.    I have  been  moved  by the  letters  which  have  been submitted on your behalf.  I am further heartened by the fact that some of the authors are here in Court today.

[18]     Mr Down has read from the letter of Dr de Klerk who is a psychiatrist at Mason Clinic where you have worked with such distinction.  I want to briefly read from letters from others.  Dr Rudegeair, a consultant psychiatrist, has said:

In  all my interactions with this young man over the three years of our professionally  intimate  relationship,  I  have  seen  nothing  but  kindness, strength of character, and dedication to his work.

[19]     Your neighbour, Mrs Seve, has said that you saved her husband's life when he collapsed in 2007.  Another person from your street attests to the way that you have cared for youth in the neighbourhood and made sure that it is a safer place for everybody.   The Minister of your church has referred to your service to the congregation as a teacher.   You are the last man from the Samoan culture that I would expect to see standing before me today for sentence, Mr Sagatea.

[20]     All those words and what is written in the probation report justify what Mr Down has said.  You are a caring and peaceful individual.  All of this is so much out of character.

[21]     The third factor that weighs heavily with me is Mrs Peauvasa's attitude.  She has suffered a dreadful loss.  She is left with two young children.  It would be easy for her to be vengeful and bitter.  Instead she has forgiven you.  Mr Hinton writes this:

The victim's wife was a lovely lady whom whilst still grieving and unable to meet with the offender because of this, expressed to me that 'I forgave him for what he did', but she can't forget.   She explained that she is now the mother and father to her children and feels really sorry when her son goes to school, as this was an activity that her husband used to do regularly.

[22]     Mr Hinton has really summed up the sentiments of everybody.  He says:

This tragic event has shattered the lives of two families who appeared to be genuine in their concern for each other.

[23]     Mr Sagatea, you have heard from Mr Down that I must now make certain specific or, as Mr Mount said, arithmetical deductions for these favourable qualities. I allow a discount of six months for your exemplary character.   I allow a further discount of 12 months for your entry of an early plea of guilty.   That leaves an adjusted sentence of 18 months imprisonment; in other words, those favourable or mitigating features have effectively brought the starting point down from three years by 50% to 18 months imprisonment.

Home Detention

[24]     However, that is not the end of the exercise.  You are eligible for a sentence of home detention.  That was a sentence introduced by Parliament in 2007 as a real and effective alternative to imprisonment.  It is a severe restriction on an offender's liberty.  But its great benefit is that it enables somebody to remain in the community. Parliament has recognised that it can meet all the appropriate sentencing principles and  purposes.    In  particular,  it  makes  an  offender  accountable,  it  deters  and

denounces.[2]     It  is  a  sentence  available  to  the  sentencing  Judge  in  his  or  her

discretion.  There is no category of case which rules out this option; it is as open for manslaughter as it is for any other offence.

[2] R v Iosefa [2008] NZCA 453.

[25]     After  giving  this  issue  very  careful  consideration,  I  am  satisfied  that  a sentence of home detention should be imposed.  I will explain the reasons.

[26]     First,  it  ensures  that  you  will  be  retained  in  the  community.    That  is preferable for everybody.   In sentencing terms it is the least restrictive outcome. Second, as the Court of Appeal has emphasised, it is an appropriate sentence where there is a low risk of re-offending.   You fall into that category.   Third, and this weighs heavily with me, if you remain in the community, rehabilitative programmes are available to deal with those two features of your character that place you at risk - your alcohol consumption and your anger mismanagement.  Fourth, and again this weighs  heavily,  there  is  Mrs Peauvasa's  forgiveness.    Fifth,  and  I  accept  what Mr Down has said, there is your mother's reliance on you for her health and welfare. Sixth, and again this is important, your removal from the community will deprive it of someone who can make a substantial contribution in the workplace.  A sentence of home detention, while requiring you to live at home around the clock, allows for the exception of employment.  Seventh, Mr Sagatea, in times like this somebody like you is entitled to draw on your credit with your community.  Whatever punishment I impose today will never remove the stain or the shame of what you have done.  It is a time to atone.  I am satisfied that that result could be achieved by a sentence of home detention.

[27]     Accordingly, I am adjourning your sentence for a period suitable to enable a home detention appendix to be prepared.   You will be remanded on bail on your existing terms to enable the probation service to prepare a home detention appendix to determine whether the address at which you live is suitable.   You will appear again before me in this Court at 9 am on 29 July 2010 for sentence.  In the event that a suitable address is available, I will then fix the length of the sentence of home

detention.  It will be at least nine months or up to one year. Please stand down.

Rhys Harrison J