R v Skeen

[2016] NZHC 1904

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-204-344 [2016] NZHC 1904

THE QUEEN

v

VINCENT ANGENE SKEEN

Hearing:	16 August 2016
Appearances:	B H Dickey and H D Steele for Crown L O Smith for Defendant
Sentence:	16 August 2016

SENTENCING NOTES OF PETERS J

Solicitors:           Meredith Connell, Crown Solicitor, Auckland

Counsel:            L O Smith, Auckland

M M Wilkinson-Smith, Auckland

R v SKEEN [2016] NZHC 1904 [16 August 2016]

[1]      Mr Skeen.  Today I am sentencing you for the manslaughter of Luke Tipene on 31 October 2014.1

[2]      The maximum penalty for manslaughter is life imprisonment.2

[3]      I shall start by setting out the events that led to Luke’s death.

[4]      Then I shall turn to the first step in the sentencing process which is to set a

“starting point” that reflects the wrongdoing in your offending.

[5]      The second step is to take account of matters that relate to you personally and which may require me to increase or reduce the period of imprisonment established by the starting point.

[6]      What this means Mr Skeen is that you will not know your sentence until I get to the very end.

[7]      But before I start, I wish to assure the Tipene and Skeen families that the lawyers on each side, as well as Corrections, have done the work required of them to prepare  for  today.    Corrections  have  given  me  a  report,  and  the  Crown  and Mrs Smith have given me careful written submissions.  I have read every case that they have referred me to, and lots more besides.

[8]      I say this because you should not think – and I know you wouldn’t anyway – that Judges just pluck sentences out of thin air.   We apply the law, and we take everything into account to get to a result that does justice to the community, to the victims and to the defendant.

[9]      Quite aside from the reports and submissions, I have had had the benefit of a written statement from Luke’s mother and a teacher at his kura.

1      Crimes Act 1961, s 171; you were convicted of manslaughter on 18 July 2016 following a jury trial on a charge of murder.

2      Crimes Act 1961, s 177.

[10]     It  was  obvious  to  everyone  at  the  trial  that  Luke  was  much  loved  and cherished by his family.

[11]     Luke was robbed of his life at 17.   He was Ms Wilson’s only son and she describes his loss as “intense and paralysing”.  Ms Wilson raised Luke and his four sisters single handedly and Luke’s death is devastating.   In fact, one of those four sisters was Luke’s twin and she must feel his loss very keenly also.

[12]     Neither Ms Wilson, nor Luke’s sisters, will ever get over his death and nor will his wider whānau.

[13]     Luke was also a good friend to many, and an excellent sportsman with an exciting future ahead of him.  Exciting for him and exciting for his family.  He was also achieving academically, so his options were wide open.   One of his teachers, Ms Vause, says Luke was a wonderful student and role model and that he was determined to accomplish much and make his whānau proud.

[14]     It  will  be no  comfort  to  the Tipene  family that  this  case  is  yet  another example – and we are not short of them – of what can happen when someone throws the first punch.

[15]     It is anyone’s guess where things will end up after a fight and they can end up

tragically, as they have in this case.

Facts

[16]     The events that led to Luke’s death are as follows.

[17]     Late on 31 October 2014, you were in Grey Lynn to pick up your girlfriend from a party.

[18]     As it turned out, two boys at the party, T and K, were planning to have a fight.  T had told his friends, Taine and Luke Tipene, about the fight and they arrived just as it was about to start.

[19]     At the very least Taine and Luke were there to provide back-up for T. [20]    You had been drinking and so had Luke.

[21]     After the fight started, you saw T hit K.  You then hit T and Luke joined in. Luke punched you in the head, knocking you to the ground.

[22]     Taine became involved in the fight between T and K, and that moved down

Great North Road towards the Grey Lynn shops.

[23]     Meanwhile you and Luke started fighting again, this time near the corner of

Coleridge Street and Great North Road.

[24]     Luke punched you and you fell to the ground.   At some point you either broke a bottle or you picked one up that was already broken.  You were holding it by the neck and it had a large protruding shard, so it was a bit like the blade of a knife.

[25]     You then swung the broken bottle at Luke several times and on the last swing

the broken bottle connected with Luke’s neck and cut his jugular vein.

[26]     Luke died in the early hours of the morning, having suffered massive blood loss and despite the doctors and nurses doing everything they possibly could to save him.

[27]     You left the scene and, on learning of what you had done, tried to hide from the Police.  That did not last long and eventually your mother took you to the Police Station.

[28]     You were three days short of 17 at the time and are now 18.

[29]     Your mother and wider family have supported you over the last two years and they will be doing that for years to come.  The report from Corrections which I have mentioned says that, at most, you are at medium risk of reoffending, that you have no history of violent offending and you present a low risk of future harm to others.

[30]     Your father died when you were very young and so your mother has had to bring you up on her own.

[31]     There is nothing in your background which would explain your actions that night – your behaviour seems completely out of character.

[32]     You are now working on your NCEA levels and members of your family are standing by, ready to help you when you get out of prison.  Many people are not so fortunate Mr Skeen, so you must not squander the opportunities that you will get.

Purposes and principles

[33]     When I started today, I said that the first step in the sentencing process was to establish what we refer to as the starting point.   That serves as a bench mark for offending of the type you committed.  It looks purely at the offending and takes no account of your personal circumstances. Those have an effect at the second stage.

[34]     In setting the starting point I am looking to set a bench mark that would apply to anyone – of whatever age, wherever they are in the country – who swings a broken bottle several times, at the very least aiming at another person’s upper body, and, without intending it, causes death.

[35]     In setting the starting point, I first remind myself that this is a case where a

street fight has led to a person’s death. The sentence I give you must be sufficient to: (a)     hold you accountable;

(b)bring home to you and others that the community will not tolerate such offending; and

(c)       deter you and others from such behaviour.

[36]     The starting point must also be consistent with those adopted for others who have behaved in a similar way, so that everyone is treated the same.

[37]     And  it  must  be  the  least  restrictive  possible  –  frankly,  that  means  the minimum – in the circumstances.

[38]     All of these purposes are set by the Sentencing Act 2002.

Starting point

[39]     Although people usually intend the consequences of their actions, that is not the case with manslaughter.3

[40]     In manslaughter, the act – in this case the swinging of the broken bottle – is intentional, but by definition the consequence – the death – is unintentional.

[41]     And for this reason the critical issue in setting the starting point for your sentence is the level of wrongdoing in you swinging that bottle and striking Luke’s neck.4

[42]     Your offending was serious and violent and in such a case the Court will often fix the starting point by reference to guidelines for such offending set by the Court of Appeal in a case called Taueki.5

[43]     Alternatively, or as a cross check, the Court can fix the starting point by reference to other manslaughter cases.

Crown submissions

[44]     For the Crown, Mr Dickey submits that your actions constituted extreme violence.

[45]     The broken bottle was at the very least was likely to result in serious injury and, in fact, the worst possible injury resulted.

3      R v Leuta [2002] 1 NZLR 215 (CA) at [62].

4      At [63]; R v Edwards [2005] 2 NZLR 709 (CA) at 713; and Waipuka v R [2013] NZCA 661.

5      Taueki v R [2005] 3 NZLR 372 (CA).

[46]     The Crown also says that you deliberately targeted Luke Tipene’s head and

neck and that there was a degree in premeditation in your actions.

[47]     For that reason, the Crown submits that your offending requires a starting point in the upper half of Band Two of Taueki.

[48]     Mr  Dickey submits  that  a  starting  point  of  eight  years’ imprisonment  is

required.6

[49]     In   support   of  this   submission,   Mr  Dickey  has   referred   me  to   two manslaughter cases in which the Court fixed the starting point by reference to the Taueki approach.7

[50]     Neither is exactly the same as your case but in each of them the cause of death was a single stab wound with a knife.  In R v Harris, the starting point was six years and nine months, and in R v Ariki it was eight years.

[51]     As  a  cross  check,  the  Crown  has  also  referred  me  to  a  case  called R v Edwardson.8    The facts of this case are very similar to your own, and so it is highly relevant.  Two young women traded blows at a party and then Ms Edwardson got a small knife out of her pocket and stabbed the victim in the neck.  The victim died shortly afterwards. The starting point was seven years.

Defence submissions

[52]     Now I turn to Mrs Smith’s submissions.

[53]     Mrs Smith acknowledges the extreme violence in your actions, again the use of the broken bottle and the fact that your actions have resulted in Luke Tipene’s death.  She also acknowledges that, at the very least, you were attacking the upper

part of Luke Tipene’s body.

6      Paragraphs [49] to [51] not read at sentencing.

7      R v Ariki [2015] NZHC 3240; and R v Harris [2016] NZHC 1687.

8      R v Edwardson HC Rotorua CRI-2006-069-1101, 27 April 2007.

[54]     Mrs Smith has also referred me to cases in which the Court has sentenced a person for manslaughter when the weapon used has been a knife.9

[55]     The starting points in those cases range from four and a half years to seven years, three months.

[56]     Mrs Smith submits that the correct starting point in your case is seven years’

imprisonment.

Decision on starting point

[57]     Mr Skeen, I am satisfied you swung that broken bottle several times, that it was an extremely dangerous weapon and that, at the very least, serious injury was likely to result.  I do not think you were aiming for Luke Tipene’s neck but you were aiming for his chest. You are squarely within band two of Taueki.

[58]     Whether I fix the starting point by reference to Taueki (allowing for Luke’s death) or by reference to comparable cases, I am satisfied that seven and a half years is appropriate.10

[59]     I now turn to the next part of the process which is whether I should increase or reduce the starting point for matters that relate to you personally.

[60] – [62] inclusive: Publication prohibited by Children, Young Persons, and Their

Families Act 1989.

[63]     I am going to reduce the sentence from the starting point for two reasons and both counsel accept that these reductions are appropriate and fair.

9      R v Herewini HC Rotorua CRI-2006-063-3151, 5 October 2007; R v Emery HC Auckland CRI-

2008-092-1285, 13 February 2009; and Wharerau v R [2015] NZCA 299.

10     R v Ahsee HC Auckland CRI-2010-055-2018, 15 December 2011; R v Kaihau [2013] NZHC

3192; R v Smith [2014] NZHC 2091; R v Ariki, above n 7; R v Hepi [2015] NZHC 1449; R v

Tekao [2015] NZHC 1657; R v Harris, above n 7; cf R v Raivaru HC Rotorua CRI-2004-077-

1667, 5 August 2005; R v Herewini, above n 9; R v Edwardson, above n 8; R v Emery, above n 9; R v UGT  HC Rotorua CRI-2011-263-73, 21 July 2011; R v Eastham [2013] NZHC 2792; and Wharerau v R above n 9.

[64]     The first is your age at the time of the offending.  17 year old boys are not adults.  They are impulsive, and they lack judgement and foresight, particularly after they have been punched in the head twice, with enough force to knock them to the ground.

[65]     In addition, a long sentence may be crushing for a young person, and have a more severe impact on them than the same sentence would have on an adult.11

[66]     I am going to reduce the starting point by one year because of your age.  So that brings the starting point down to six years, six months.

[67]     The   second   reduction   is   required   because   you   acknowledged   your responsibility for what had happened and offered to plead guilty to manslaughter in February 2015, so three months after the offending.

[68]     The Crown was entitled to pursue a conviction for murder as it did.

[69]     But had your offer to plead guilty been accepted, the Tipene family would have been spared the gruelling experience of two trials, and the Police, all of the witnesses and the State likewise.

[70]     It is for such reasons that an offer to plead guilty generally leads to a lesser penalty.

[71]     Mrs Smith has asked me to reduce your sentence by the maximum of 25 per cent because of your offer and your considerable remorse.  Having observed you at trial Mr Skeen, I accept that your remorse is genuine.

[72]     However, the Crown’s case for manslaughter was overwhelming and there

was never any prospect of you defending it.  In my view, 20 per cent is the most that is available in the circumstances.

11     Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.

[73]     That 20 per cent reduction brings the sentence down to five years and two months imprisonment.

[74]     Please stand.

[75]     Vincent Skeen for the manslaughter of Luke Tipene I sentence you to five

years and two months’ imprisonment.

[76]     Stand down.

..................................................................

Peters J