R v Sanders HC Wellington CRI 2009-078-824

[2010] NZHC 2222

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-078-824

THE QUEEN

v

PHILLIP CHRISTOPHER SANDERS DAVID SHAUN GALLOWAY

Hearing:         10 December 2010

Counsel:         S K Barr for Crown

P V Paino and I Hard for Prisoner Sanders
D Stevens QC and R J Stevens for Prisoner Galloway

Judgment:      10 December 2010

SENTENCING NOTES OF DOBSON J

[1]      Mr Sanders and Mr Galloway, I have to sentence each of you this morning for your convictions for manslaughter that were entered at the conclusion of the  jury trial held in this Court and concluding on 5 November 2010.  The maximum penalty for manslaughter is life imprisonment.

[2]      As  to  what  occurred,  I  proceed  on  the  basis  of  the  evidence  as  I  have analysed it with the advantage of sitting through the trial, ensuring that the view I take is consistent with the verdicts of the jury.[1]

[1] Sentencing Act 2002, s 24.

[3]      The victim was Mr Richard Jones.  He was living as a transvestite, dressed in

women’s clothes and preferred to be called Diksy.  He was a 64 year old beneficiary

R V SANDERS HC WN CRI-2009-078-824 10 December 2010

who weighed  a  mere 50  kilograms  and  was  an  occasional  small-time dealer in cannabis.

[4]      On the afternoon of the attack, you each arrived separately at Mr Jones’ flat in Upper Hutt.  Mr Sanders, you arrived first.  You had had relatively regular contact with Mr Jones, usually to buy cannabis, but in the weeks before the attack you had argued with Mr Jones, and threatened him.  You also commented to others that you were threatening to do violence to him.  Your threats to him and about him were to an extent that a relatively low-level oral non-association order had been conveyed to you by your Probation Officer.  One Crown witness, Donna Mason, gave evidence to the effect that you had said, the day before the attack, that you wanted to take Mr Jones’ drugs  and  money.    After  the  attack,  you  were  found  with  some  of Mr Jones’ property on you.  The day of the attack was your birthday and you were affected by alcohol, and possibly potentially also by drugs.

[5]      Mr Galloway,  you arrived some minutes after Mr Sanders.   You had met Mr Jones on a small number of previous occasions, when acquiring cannabis from him.  In the videoed interviews of you undertaken at the Police Station later that day, you repeatedly claimed that you went to the address to beat up a transvestite.  You made comments that Mr Jones did not deserve to live on the basis that he was a transvestite and a cannabis seller.  Although these comments became a little more measured after you learned that Mr Jones had died, you returned to the theme that he had deserved it.  What you must know is that we are all absolutely equal in the eyes of the law, with every person in New Zealand being equally entitled to the protection of the law, irrespective of race, creed, colour or sexual orientation.   It is utterly abhorrent for any participant in a crime to suggest in any way that your culpability should be reduced because the value of the victim’s life was less on account of his sexuality or lifestyle.

[6]      On the basis of the evidence from a neighbour of Mr Jones, I am satisfied that after  you  both  arrived,  that  neighbour  observed  Mr Jones  through  his  bedroom window to be in an unharmed condition, at least as far as his face was concerned. At trial,  your counsel,  Mr Galloway,  argued  that  the neighbour’s  view of  Mr Jones unharmed must have been before you arrived, with Mr Sanders inflicting harm on

Mr Jones before you got there.  My own view of the evidence is that she correctly

recalled the sequence, and the jury’s verdicts are consistent with that.

[7]      Neighbours heard loud noises, consistent with an argument and a fight, and were sufficiently concerned to call the Police.  Minutes later when the Police arrived, you  were  both  still  in  the  flat.    Mr Jones  had  been  subjected  to  a  savage  and sustained attack that was simply not survivable.  The pathologist’s report analysed at least 13 or 14 separate impacts on his head.  The cause of death was most likely a hinge fracture of the skull that ran right across the victim’s head, from ear to ear. There were in addition substantial injuries on Mr Jones’ body, consistent again with a sustained attack on him.

[8]      Mr Sanders, Mr Paino has argued on your behalf that I should treat your involvement as being limited to what you admitted doing when you gave evidence here in Court.  Mr Paino’s argument is that the jury may have found you guilty of being a party to the manslaughter by accepting everything you said.  I cannot accept that argument in that form.  The jury’s finding involved at least a partial rejection of the way in which you downplayed your involvement, and I am satisfied you should be sentenced on the basis that your involvement was greater than you were prepared to acknowledge in your evidence.  Statements to the Probation Officer and in your letter to me suggest regret that you did not do more to prevent the attack that you blame otherwise on Mr Galloway.  However, I do not accept that the participation in the attack  on  Mr Jones  was  as  one-sidedly Mr Galloway’s  responsibility as  you claim.

[9]      A number of the Police officers observed you to be panting from physical exertion when they arrived at the premises, and it is difficult to accept that you spent most of your time at Mr Jones’ address searching for drugs when the Police fairly readily found cannabis in the room in which Mr Jones had been beaten.

[10]     The  Crown  submissions  invite  me  to  treat  the  offending  as  a  “home invasion”.   The Sentencing Act 2002 (the Act) stipulates that it is an aggravating factor when an offence involved unlawful entry into, or unlawful presence in, a

dwelling place.[2]   Even on your account, Mr Sanders, although Mr Jones opened the door to you, he was immediately apprehensive, to the extent that he armed himself with a knife.  If you went there to threaten or rough him up a bit or, as you had said to Ms Mason the day before, to take his drugs and money, you would have been there for an unlawful purpose.   You then let Mr Galloway into the premises and certainly from that point, to the extent that a savage beating that would inevitably kill Mr Jones occurred, this was what the law used separately to identify as a home invasion and that must be an aggravating factor.

[2] Sentencing Act 2002, s9(1)(b).

[11]     The jury’s finding means that they were not satisfied that either of you acted with murderous intent.   I respect that outcome, and it governs my sentencing considerations.

[12]     I have had regard to victim impact statements from two sisters of Mr Jones, and we have heard Mr Jones’ daughter read her victim impact statement to the Court this morning.  It is apparent from those that Mr Jones’ family loved him for what he was, and the cruel and unexpected manner of his death has left an enormous hole for all of them.   I am particularly moved by the references to his gentle and caring nature.   He was obviously a person who avoided any impulse to threaten or use violence and that makes the manner of his brutal death all the more tragic for those that loved him.

[13]     There are two sources of guidance or direction on the appropriate sentence for your offending.   The first is the Sentencing Act and, without detailed cross- references, I have had regard to all of ss 7, 8 and 9 of that Act.  The second source is earlier sentencing decisions and appeal court commentary on them.

[14]     Unlike many serious crimes, the Court of Appeal has recognised that the circumstances of manslaughter convictions vary so widely that it is inappropriate to

provide a guideline for sentencing.   One suggestion has been that the sentencing

Judge must carefully analyse the case before him or her and then proceed, with caution, to compare the case with others.[3]

[3] R v Edwards [2005] 2 NZLR 709 at [14], and see also R v Leuta [2002] 1 NZLR 215 (CA) at [59].

[15]     Even although there is no guideline judgment from the Court of Appeal, it has recently confirmed that it can be appropriate to rank the relative seriousness of the circumstances of manslaughter offending by reference to a list of what will be aggravating features in  grievous bodily harm offending, for which the Court of Appeal has provided guidelines in the judgment in R v Taueki which you have heard

counsel refer to this morning.[4]   Most recently, on Wednesday this week, the Court of

Appeal has endorsed using both approaches, with cautious reference to other manslaughter  sentences  being cross-checked  against  an  analogy with  the  Taueki factors applied in cases of violent offending that have not resulted in death.[5]

[4] R v Taueki [2005] 3 NZLR 372 (CA) at 31. Appropriateness of the analogy in manslaughter sentencing recognised in R v Jamieson [2009] NZCA 555.

[5] R v Tai [2010] NZCA 598, 8 December 2010.

[16]     For sentencing on grievous bodily harm offences, in Taueki the Court of Appeal recognised 14 features that can be acknowledged by a sentencing Judge as making the offending more serious.   In the context of grievous bodily harm, the Court of Appeal suggested three bands, with the most serious, band 3, being where the offending had three or more of the aggravating factors and where their combination made it particularly grave offending.  The guideline starting point for band 3 grievous bodily harm is nine to 14 years’ imprisonment.

[17]     Although some of those 14 factors are not relevant here, a number of them are and the Crown has submitted that I should have regard to nine.   Features of offending which potentially make it more serious are:

(a)       First, the use of extreme violence.  Well, this was a savage, sustained and, in all practical senses, an unsurvivable attack.

(b)The secondly is pre-meditation.   The Crown submits that there was pre-meditation because, Mr Sanders, you had repeatedly threatened to

harm Mr Jones, and had said the day before that you wanted to take his drugs and his money.  Further, Mr Galloway’s attitude afterwards reflected that he had gone to the flat, in your own words, “to beat up a transvestite”.  I am not satisfied that pre-meditation was present in the sense the Court of Appeal contemplated in Taueki.   Attributing to either of you an element of planning to commit anything like the level of violence that occurred would be inconsistent with the jury’s finding of lack of murderous intent.  To the extent the evidence supports the inference the Crown invites that Mr Sanders’ conduct in the weeks and days before the attack suggest he had in  mind standing over Mr Jones or roughing him up for his drugs and money, I do not see that as pre-meditation for the seriousness of attack that ensued.

(c)      The third of the Taueki that could be relevant is the seriousness of injury.   Obviously here it could hardly have been more serious. Although having said that I am mindful of Mr Paino’s caution on this factor  that  I should  not  double  count  with  the  first  factor  of  the relative level of violence.

(d)Fourthly, the use of a weapon.  Now, none was used or taken to the scene, but, as observed in another Court of Appeal decision, the use of shoes or boots to kick a victim is “little removed” from the use of a weapon.[6]

[6] R v Jamieson [2009] NZCA 555 at [35].

(e)      Fifthly, attacking the head of the victim.   The Court of Appeal in Taueki saw attacks to the head having particularly serious consequences which, again in the context of grievous bodily harm, are to  be  treated  similarly  to  offending  which  uses  a  weapon.    Its relevance in grievous bodily harm offending where death does not result may often be the enhanced risk that death could have occurred. Here, death did ensue so again I am not inclined to give it the same

weight it would have in grievous bodily harm.

(f)      Sixthly, whether there were multiple attackers.  That is a feature here, given that two of you lessened any prospect of effective self-defence or escape.

(g)Seventh is the vulnerability of the victim.   Again, this is a serious aggravating feature given the disparity in size and age between both of you and the utterly defenceless target that Mr Jones represented.

(h)Eighth, home invasion.  This occurred at Mr Jones’ home and the law treats the invasion of the privacy he is entitled to expect as making the offending materially worse.

(i)Ninth, whether the offending constituted a hate crime.  I am satisfied that this was, so far as you Mr Galloway is concerned, a hate crime.  I have considered the explanation in your recent letter to me that your hateful comments in the Police interviews that day were just those of a “stupid young intoxicated boy” who had no idea of the seriousness of  your  actions.    However,  it  is  clear  to  me  from  the  numerous viewings of those videoed interviews that your hateful comments that transvestites did not deserve to live reflect the frame of mind you were in when this attack took place.  Because this hate crime factor is not attributable to both of you, I put it to one side in determining a starting point,  and  will  come back  to  it  when  considering factors specific to you, Mr Galloway.

[18]     Accordingly, had Mr Jones by some miracle survived your attack on him, some aspect of at least seven of the 14 aggravating features in Taueki is present. Remembering that three such features  could be sufficient to put serious violent offending into band 3, this analysis would readily justify your offending coming somewhere between the bottom and the middle of the band 3 guideline of between nine and 14 years.

[19]     In light of that comparison, I turn next to manslaughter convictions that can be compared to the present case.  A number of them involve participation by two or

more offenders in the intentional infliction of serious violence on a victim, in circumstances where, as here, the Crown could not satisfy the jury of the presence of any murderous intent on the part of the assailants or some of them.

[20]     One recent comparable case is that of R v Jamieson.[7]   There, six young men were convicted of manslaughter.  The offending occurred when a number of young people were milling around on a suburban street after a party had been closed down. The victim had formed a relationship with the former girlfriend of one of the offenders.  That offender attacked the victim at the scene but the victim ran away, being pursued by all six of the offenders.   His attempts to defend himself were hopeless in a six-on-one situation.  He was punched and kicked to the ground and then further kicked and stomped on, and he died some four days after the assault.

[7] R v Jamieson [2009] NZCA 555.

[21]     On sentencing, the Judge was able to distinguish the participation of three of the six offenders as principals, with the remaining three taking a lesser role.  They were all relatively young, but given the seriousness of the intentional violence committed against the victim, the Court adopted a starting point of nine years.  In some cases, mitigating circumstances reduced the final sentence to seven and a half years.  In an appeal, the Court of Appeal accepted that the starting point of nine years had been open to the sentencing Judge.

[22]     More recently, there has been another case called R v Pahau.[8]   In that case, the four offenders were members or associates of the Black Power gang.  A violent attack was proposed on a group who worked as scaffolders, and some of whom were thought to be linked with the Mongrel Mob.  On the night in question, one of the group that had included the victim had been wearing a red tee-shirt, consistent with an association with the Mongrel Mob.  To varying degrees, the attackers chased the victim onto private property, and the principal offender fatally stabbed the victim as he tried to climb through a window into a house to escape the attackers.   The principal offender was convicted of murder but those with him were convicted of manslaughter.  One of them stood with a firearm at the entrance to the property in

which the attack occurred.  All were also charged with participating in an organised

criminal group and with commission of a crime with a firearm.  The analysis by the Judge of the starting points  does  not,  however,  make much of those  additional convictions.  The Judge there observed if there had not been gang involvement or weapons, and the other aggravating factors he identified, then a starting point in the vicinity of eight years would have been appropriate.[9]     Without those aggravating factors, I consider this case is more serious than those of the supporting offenders in Pahau, given the completely defenceless nature of the victim, the fact that the fatal attack  was  inflicted  in  his  own  flat,  and  the  sustained  brutality  of  the  injuries

inflicted on him.

[8] R v Pahau HC New Plymouth CRI-2008-043-4555, 16 August 2010.

[9] At [65].

[23]     In the case of R v Laungaue, one offender was convicted of manslaughter together  with  two  co-accused  who  were  sentenced  for  causing  grievous  bodily harm.[10]  The three offenders had been asked to leave a residential property and whilst on the road outside a fight occurred among two of them causing substantial noise. A neighbour of the house in which they had been drinking tried to give the young men a telling off, sadly taking a sword with him.   The victim made derogatory racial

comments towards the youths and at one point poked the sword at Mr Laungaue’s legs, resulting in a small cut.   He was then assaulted and Mr Laungaue took the sword off him.  The victim was punched and kicked and struck with the sword.  He was tackled in the course of attempting to flee, was then punched and kicked again and  the  sword  was  used  again.    On  sentencing,  the  Judge  was  satisfied  that Mr Laungaue had stabbed the victim with the sword.  The Judge identified a starting point on the manslaughter conviction of nine years’ imprisonment.

[10] R v Laungaue HC Auckland CRI-2004-092-11142, 15 December 2005.

[24]     The present case is somewhat worse because here the victim was entirely defenceless, and rather than seeking contact with his attackers, was attacked in his own home.  In Laungaue, the offender’s youth and the need for some rehabilitative purpose saw the end point reduced to eight and a half years’ imprisonment.

[25]     Mr Galloway, your counsel has invited comparison with the sentencing in

Kupa-Caudwell v R.[11]   In that case, two co-accused had been found guilty of murder and this third co-accused was found guilty of manslaughter.  The three accused had

assaulted the victim who was chased and tackled to the ground by another of the co-accused.  After the victim initially escaped, he was chased again, brought to the ground and all three of the accused kicked the victim to the head repeatedly.  The Court of Appeal approved the starting point on the manslaughter conviction of seven years’ imprisonment as being within an appropriate range.  Again, I treat this case as more  serious  than  that  one  in  that  the  victim  initially  invited  contact  with  his attackers, and although there was cowardly ganging up on him and sustained kicking to the head, it occurred in open spaces with the victim not being nearly as vulnerable as  Mr Jones  was  here.    Further,  as  the Crown  reply memorandum  pointed  out, Kupa-Caudwell had played a lesser role in the attack, with the other two getting longer sentences for their murder convictions.

[11] Kupa-Caudwell v R [2010] NZCA 357.

[26]     Consistently with your cases at trial, and your statements to the Probation Officers who prepared the pre-sentence reports, submissions for each of you have urged that I treat the other offender as playing the major part in inflicting the fatal injuries.  I will not make a finite ruling of that type.   Mr Stevens has urged that I have to fix on a definitive extent of involvement of each of you, but I do not accept that that is a burden I have to discharge before properly deciding on sentence.

[27]     Mr Sanders, you gave evidence, accepting that you were the first to strike Mr Jones, but claiming that thereafter the further and fatal damage was done by Mr Galloway.  Mr Galloway, you did not give evidence but your defence relied upon parts of statements you had made to the Police on the evening of the attack, which was argued were consistent with the fatal injuries having been inflicted before you arrived.

[28]     I am satisfied from a careful review of all the evidence that you were both present in the flat when the fatal injuries were inflicted, and that both of you made a material contribution to them.  In Kupa-Caudwell, the Court of Appeal repeated the observation it had made in Jamieson to the effect that participants in a group attack take on the culpability of the actions of the group as a whole.  Now yours may not be the classic group attack situation, particularly as you arrived separately, but you were both present in Mr Jones’ tiny flat from the period in which the neighbour saw him

with his head at least being unharmed, through to the time the Police found you there, and I am satisfied that that same approach is justified.

[29]     I  therefore  approach  your  sentencing  on  the  basis  that  you  were  both principals  in  a  killing  that  involved  brutal  and  sustained  violence  against  a defenceless victim. That means that I will not differentiate the starting point used for each of you as reflecting your mutual involvement in the offending, but leaving the hate crime factor to one side.  The Crown has submitted that a starting point in the range of 11 to 13 years would be appropriate before considering features personal to each  of  you.   Mr Paino  has  criticised that  as too high,  but did not propose an alternative starting point in the case of Mr Sanders.  For Mr Galloway, Mr Stevens has urged that the starting point ought to be seven to eight years.   I am satisfied, having  reflected on  all  the  considerations  I have reviewed,  that  the  appropriate starting point for this offending is 10 years’ imprisonment.

[30]     I next consider individual circumstances of each of you as offenders that might be relevant as either aggravating or mitigating factors to shift the starting point.  Mr Sanders, in your case you are some 42 years old.  You have a history of violent offending in Australia that is now decades old, and I do not give that any real weight as an aggravating factor, given how long ago that it was.

[31]     The majority of the potentially aggravating features relate to the offending in your case, rather than to you as an offender.  The one matter that troubles me, and which I am required to have regard to under the Sentencing Act, is that the offending occurred  whilst  you  were  still  subject  to  a  sentence  of  community  detention. Mr Paino downgrades the importance of that by suggesting that you were near the end of your sentence and that it was for completely unrelated and relatively trivial offending.  However, the reason it is an aggravating factor in the statute is that the law on sentencing expects a person subject to a sentence to abide by its terms, and re-offending whilst still subject to a sentence is appropriately treated as an aggravating feature.  It would warrant a five per cent uplift.

[32]     There  was  apparently some  prospect  of  your  offering  to  plead  guilty  to manslaughter if the Crown was prepared to reduce the charge.  I am not comfortable,

in line with the submissions I have heard from  Mr Barr this morning, that that initiative went far enough to give you any credit for that suggestion as a mitigating factor.   In your letter to me, you have expressed remorse and you raised with the Probation Officer that you are upset that death has resulted from the fateful visit to Mr Jones’ flat.  In your case, reflecting on your evidence at trial and all that I now know, I do accept that you are genuinely remorseful.  I am mindful of the structured way in which  remorse  is to be measured in light of the recent Supreme Court

decision in R v Hessell[12] and Mr Barr denies that there is requisite remorse because it

has not been shown relative to offending on which I must sentence you.  However, I am satisfied that in your case there is qualifying remorse and, on all that I have observed and read, I treat you as having a real problem with a very aggressive temper,  rather  than  being  a  maliciously violent  man.    Uncontrollable  temper  is something you can learn to change, and I hope that you will.

[12] R v Hessell [2010] NZSC 135.

[33]     You certainly had an unhappy childhood and appear to have a relatively long- standing problem with hard drugs.  You have apparently been drug free since your arrest in April 2009, with the exception of prescribed medication, and are committed to  participating  positively  in   whatever  drug   treatment   might   be  considered appropriate  for  you  whilst  in  custody.    Given  the  length  of  the  sentence  you inevitably face, the form of such treatment is not a matter for me today.  I have read the HALT report on you of 14 November 2010, and commend the proposals in it to those who will be in charge of you.

[34]     These  factors  do  give  some  cause  for  optimism  in  respect  of  your rehabilitation, and I am conscious of Mr Paino’s submission that you should not be sentenced to so long a period in jail as to stifle the prospects for your rehabilitation. Cumulatively,  these  mitigating  factors  cannot  justify  more  than  a  10  per cent discount from the starting point and most of that credit is given for what I identify as appropriate remorse.

[35]     The outcome is that, from a starting point of 10 years, there is a net deduction of five per cent, meaning a reduction of six months, making a final sentence in your

case of nine and a half years’ imprisonment.

[36]     Mr Galloway, so far as you are concerned, the starting point for both of you to reflect a material contribution to the cause of Mr Jones’ death would be 10 years. In reaching that point as I treat it as applying to both of you, I have so far put to one side the fact that your participation was a form of hate crime.  I am bound to treat that as a serious aggravating factor.  It justifies an uplift of 10 per cent.

[37]     The other aggravating factor personal to you is that this offending occurred whilst you were on bail and when you were in breach of a condition of bail that you not drink alcohol.  Section 9 of the Sentencing Act recognises that as an aggravating factor and I treat it as justifying a small further uplift of, say, two and a half per cent.

[38]     Your previous criminal record is trivial by comparison with this conviction, and there is no history of violence.  However, it is one part of the sad commentary on what appears to have been a very troubled childhood.  I have read the letter written by your grandparents, and appreciate the concerns that they have for you.  Hopefully you appreciate their support and can subsequently justify it.

[39]     In cases of murder and manslaughter, the law is not prepared to make the same extent of concessions on account of the youth of an offender, as can be recognised in less serious offending.  This is in part because the high importance of deterrence in these serious cases can be diluted by any acknowledgement that young offenders will be treated materially more leniently than mature ones.  On your behalf Mr Stevens has urged that your youth would justify a discount of 18 months.  The Crown has referred to discounts of five and seven and a half per cent given in Jamieson to two of the principal offenders who were 19 and 17 at the time of the offending.   I agree with that range, and it conforms with other considerations for young offenders convicted of manslaughter.  I will give you a six per cent discount on account of your relative youth.

[40]     In your letter to me, you now claim to be very sorry for your contribution to Mr Jones’ death.  A letter has also been provided by another prisoner who appears to have observed your conduct being consistent with remorse for your offending.  The pre-sentence report also acknowledges that you have expressed remorse, and that

you now claim that you have no hate towards transgender people.  That also appears to be borne out by the letter from the second prisoner written on your behalf.

[41]     Mr Galloway, I remain sceptical.  A virtually constant theme in your videoed interviews was your long-standing hate of transvestites and homosexuals.  You repeated a mantra that you were brought up to believe in Adam and Eve, not Adam and Steve.  In reflecting on your predicament since the trial, it is easy to rationalise feeling sorry for yourself as newly found sorrow and remorse for the victim and the victim’s family.   I do not discount your show of remorse entirely, but these reservations mean that I am not prepared to give you the full measure of credit I would, if I accepted that it was really genuine.   I hope that you will work on that remorse and that it will in time become genuine.  When added to a modest allowance for your harsh childhood, I give you credit of a further five per cent on account of the qualified remorse and your difficult background.

[42]     These factors mean I have identified aggravating circumstances warranting a

12.5 per cent increase from 10 years, and mitigating factors that would reduce it by

11 per cent, leading to an increase from the starting point of 10 years of one and a half per cent.  Of course, sentencing is not a mathematical exercise.  One and a half per cent  of  120  months  would  be  nearly  two  months.    Taking  a  more  robust approach, the aggravating and mitigating circumstances more or less cancel each other out, so my inclination is to settle on the starting point of 10 years as the end sentence in your case.

[43]     Before settling on these final sentences, it is appropriate to consider whether nine and a half years for Mr Sanders and 10 years for Mr Galloway is an appropriate extent of difference for the overall comparative culpability of each of you.   My analysis has resulted in Mr Galloway attracting a sentence six months longer than Mr Sanders,  essentially  because  of  the  important  aggravating  factor  that  his involvement constituted a hate crime where there was no scope for attributing that to Mr Sanders, and Mr Galloway’s relative youth cannot attract a big enough discount to cancel that out.

[44]     I readily accept that there would be other equally valid approaches, applying ss 7, 8 and 9 of the Sentencing Act and the cases that provide guidance for me, to arrive at appropriate sentences for each of you.  In standing back, I remain satisfied that the factors leading to the sentences I have suggested are appropriate, and that a disparity  of  six  months  between  you  is  warranted.     On  the  basis  of  equal responsibility for the acts leading to death, an interested observer might expect that Mr Galloway’s youth would see him treated more leniently.  The reality is that that would be inconsistent with the repeated concern that serious violent offending not be treated materially more lightly because of the youth of an offender.

[45]     The Crown has pressed for longer sentences for both of you and other Judges might accede to that.   I consider there are realistic prospects for rehabilitation for both of you and I hope that that will be borne out in time.  I am concerned that any longer sentences would have too crushing an effect on the prospects for your rehabilitation.   Returning to the disparity, I am mindful of the Court of Appeal’s guidance in a case called R v Kohey where the Court of Appeal said:[13]

Whilst it is vital for a sentencing Court to strive for parity in sentencing co- offenders….parity will not be achieved by a simple measurement against a co-offender’s culpability.  Parity means treating like cases alike and others with due regard for relative differences.   It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender.

[13] R v Kohey (2003) 20 CRNZ 62 at [20].

[46]     On that approach and standing back from  all the specific factors  I have reviewed, I remain comfortable that a disparity of six months is justified and accordingly the final sentences imposed are for you, Mr Sanders, imprisonment for nine years and six months, and for you, Mr Galloway, imprisonment for 10 years.

[47]     The   final   consideration   is   whether   I  impose   a   minimum   period   of imprisonment, as sought on behalf of the Crown.   For you, Mr Sanders, Mr Paino has argued that given the likely length of sentence, a minimum non-parole period is unnecessary and would be counterproductive as further deadening the rehabilitative

prospects he has identified.

[48]     For Mr Galloway, Mr Stevens has submitted that a minimum sentence of imprisonment is not warranted because of the absence of any history of violent offending and that the community is arguably not in need of protection from you. Given your youth and positive attitude demonstrated since the conclusion of the trial, Mr Stevens argues that a minimum period of imprisonment is not warranted and suggests that these factors persuaded the Court of Appeal in the case of  Kupa- Caudwell to quash a minimum period that had been imposed by the sentencing Judge.

[49]     I note the observation from the case of Jamieson that a minimum period of imprisonment may often be required in relation to sentences in cases such as that one and this, with the Court of Appeal in that case referring back to its own observation in Taueki that minimum periods of imprisonment will not be rare or even uncommon.[14]

[14] R v Jamieson [2009] NZCA 555 at [61].

[50]     The issue is whether parole at the normal minimum of one third of the sentence ordered would mean that the period served is insufficient to achieve the purposes of sentencing which I have had regard to throughout.   How effective a deterrent signal is sent if parole is a prospect for you after three years and two months, and three years and four months?  I am sorry, but after much soul-searching my decision is that that would dilute the deterrent signal too much.

[51]     I am guided by the imposition of minimum periods of imprisonment in cases that I treat to be relevantly similar.[15]     I consider that a minimum period of imprisonment ought to be imposed in respect of both of you under s 86 of the Sentencing Act.  In accordance with the cases I am following in this regard, I impose a minimum period of imprisonment of one half of the term.  Counted in months, nine years and six months is 114 months, so that the minimum period of imprisonment for Mr Sanders will be 57 months.  For Mr Galloway, it is 60 months or five years.  I am satisfied that that is warranted to mark the seriousness of this brutal and tragic

manslaughter.

[15] R v Jamieson, R v Laungaue and R v Sullivan HC Gisborne CRI-2005-016-2100, 25 August 2006.

[52]     You may stand down.

Dobson J

Solicitors:

Crown Solicitor, Wellington
Paino & Robinson, Upper Hutt for Prisoner Sanders

Fanselows, Wellington for Prisoner Galloway