R v SM

Case [2018] NZHC 3345 17 December 2018

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ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-219-209

[2018] NZHC 3345

THE QUEEN

v

SM

Counsel: P J Morgan QC and S F Gilbert for Crown R M Mansfield and S R Lack for Defendant

Sentencing:

17 December 2018

Charge:

Manslaughter

Plea:

Not Guilty

SENTENCING NOTES OF BREWER J

Solicitors:
Almao Douch (Hamilton) for Crown

R v SM [2018] NZHC 3345 [17 December 2018]

Introduction

[1] SM, I have to now sentence you for the manslaughter of Mr Kingi. I cannot do that quickly and simply. I will have to tell you a number of things which you will not understand because they are legal matters, but the reason I will be doing this is that what I am saying now is not just for you. It will be read by other lawyers and if either of the lawyers who have been speaking today decide they do not like what I have sentenced you to, then other Courts might have to read what I am saying. So, I will be explaining in more detail than I would if I were just talking to you.

Facts

[2] On the evening of 28 July 2017, you and your young cousin, DC, and ME were out on the streets of Hamilton breaking into cars. You wanted to find things to steal and, if you could, you wanted to actually take one of the cars.

[3] When you broke into one of the cars, there was a large knife found there. That knife ended up with you.

[4] Eventually you came to Ranui Street in Dinsdale, where you broke into Mr Kingi’s and Ms Reihana’s car. But then Mr Kingi and Ms Reihana came along the road. They had been to a social function and they were walking back home. They saw what was going on and they shouted and they came running up. You and ME ran off up the hill. DC was too slow and she was caught by Ms Reihana who held onto her. You and ME realised that DC had been caught and you were not prepared to accept that. You and ME decided to go back and rescue DC. Both of you were armed. ME had a screwdriver and you had the knife. You went back to where DC was being held and you demanded that they release DC. They would not.

[5] I accept that at this stage there was a lot of noise – a lot of swearing on both sides. Mr Kingi had been drinking and, in any event, he was not the sort of man who was going to back down when confronted by you and ME. You were being staunch. You knew that Ms Reihana and Mr Kingi were calling the Police, that they were going to hand DC over to the Police,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v SM

Details

AGLC: R v SM [2018] NZHC 3345
Case: [2018] NZHC 3345
Decision Date: 17 December 2018

CaseChat Overview and Summary

The case before the High Court was R v SM, where the defendant, SM, was charged with manslaughter following the death of Mr Kingi. The legal issue was to determine the appropriate sentence for the defendant considering the nature of the offence and the defendant's personal circumstances. The court was required to balance the severity of the crime against the defendant's youth and potential for rehabilitation. The court considered the circumstances of the incident, where the defendant and others were involved in breaking into cars, and how the confrontation with Mr Kingi led to the fatal stabbing. The court noted the defendant's lack of premeditation and impulsiveness, as well as the mitigating factors of youth, lack of prior criminal history, and expressions of remorse. The court also considered the victim impact statements, emphasizing the profound loss experienced by Mr Kingi's family and community.

The court decided to adopt a starting point of six years' imprisonment, acknowledging the seriousness of the violent act but also the mitigating factors. The sentence was reduced by 35% for the defendant's youth, 15% for the early offer to plead guilty, and five months for the time spent on electronically monitored bail, resulting in a final sentence of two years and eleven months' imprisonment. The court also granted permanent name suppression for the defendant to protect their rehabilitation and prevent further stigmatization. This decision reflects the court's approach to balancing the need for punishment with the potential for rehabilitation, especially in cases involving young offenders.

Orders