R v Southon HC Hamilton CRI 2004-019-7442

[2007] NZHC 2012

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2004-019-007442

THE QUEEN

v

DUANE KURU SOUTHON

Charges:         Manslaughter Plea:       Not Guilty Appearances: J Foster for Crown

C Tennet for Prisoner

Sentenced:     17 August 2007

12 years’ imprisonment – minimum non parole period of 8 years

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Hamilton

C Tennet, Wellington

R V SOUTHON HC HAM CRI 2004-019-007442  17 August 2007

[1]      Duane Kuru Southon, you are for sentence because a jury found you guilty of the manslaughter of Karl Hanson.  The maximum sentence for manslaughter is life imprisonment.

[2]      In the very early hours of 6 October 2004 you went to your former de facto partner’s home in Ngaruawahia to visit your baby daughter.  Although this was after midnight, apparently it was not an uncommon practice.  You sometimes would go to the address late at night, knock on the bedroom window and your former partner would let you in to see the child.

[3]      On  this  night  when  you  arrived  you  saw  a  ute  in  the  driveway.    You recognised  it  as  belonging  to  the  deceased  Mr  Hanson.    Mr Hanson  had  also previously had a relationship with your former partner.  Although you had never met Mr Hanson you knew about their relationship and you knew the ute was his.

[4]      Mr Hanson had written to you while you were in the relationship with your partner.  He said that he was still having a relationship with her despite the fact that you were with her.  That caused problems between you and your partner.  In your view the letter in fact caused the breakdown in your relationship with her.   You spoke to Mr Hanson on the telephone about that and from your point of view you thought matters had been resolved.   So when you saw Mr Hanson’s utility in the driveway in the early hours you became angry because you thought he was playing you for the fool.

[5]      You went up to the house and knocked repeatedly at the doors and windows. You went round the house knocking on the windows trying to get attention.  There was no immediate reply.  You picked up a rock from the garden and you took it to the door.  In your own evidence you confirmed that you intended to use it to get into the house if necessary.

[6]      Mr Hanson’s presence at the house was quite innocent and at the invitation of your former partner and her flatmate.  They had asked him over the evening before

for a drink and as he had been drinking he stayed over.   Your knocking on the windows and doors awoke Mr Hanson and the others.  Mr Hanson called out words to the effect of “You had better leave or I’ll call the police”.  You then went back to your  car  and  took  a  9  centimetre  bladed  flick  knife  from  the  glovebox.    You punctured all four tyres on Mr Hanson’s ute, then went back up to the house and continued to bang on the door and demand entry.  Mr Hanson came to the door and opened it.  As soon as he did, you stabbed him repeatedly in the chest, abdomen, face, neck and arms with the knife.  You struck at least six blows to his torso, one of which killed him.  He stumbled back through the house and crashed through a glass sliding door before escaping through a  ranchslider but then almost immediately collapsing on the front lawn where he died.   You didn’t follow him through the house but went back to Hamilton and arranged to hide your car at a friend’s address.

[7]      The police spoke to you the next morning at your work.  They found the flick knife, covered in blood, in your workbag on top of the locker.   When you were spoken to you admitted stabbing Mr Hanson but expressed some shock when you learnt during the course of the interview that he had died.

[8]      At trial the defences were wide ranging.  There was a faint suggestion that the fatal injury might have been caused by the deceased crashing through the sliding glass door rather than the stab wounds that you had inflicted with the knife.  Counsel also raised the issues of self-defence, lack of intention because of the quantity of alcohol you had drunk that night, and provocation.

[9]      In finding you guilty of manslaughter the jury, quite properly in my view, rejected the suggestion that your actions had not caused the death and also the self- defence theory.

[10]     In terms of the Court of Appeal decision of R v Edwards [2005] 2 NZLR 709 and the decision of R v Byrne [2003] 1 Cr App R (S) 338, I am required to consider whether the verdict was on the basis of provocation or lack of murderous intent.  In my judgment the jury’s verdict, coming when it did, reflects a finding of lack of murderous intent, rather than provocation.

[11]     The jury were apparently troubled by the issue of your murderous intent. They asked questions on that topic during their retirement.   The questions were answered at about 8.15 p.m.   Shortly after the jury returned with verdicts of not guilty of murder but guilty of manslaughter.  Given the sequence that I suggested to the jury that they consider the issues, in my view it is likely they found you not guilty on the basis of a lack of murderous intent because of the alcohol you had consumed.  Also the amount of alcohol you had consumed was a major focus of your defence.

[12]     Both you and your associate Mr Heperi gave evidence that over the course of about eight hours before going to the property you had drunk somewhere between 15 and 22 double bourbon and cokes and a jug of beer.  There was a real contest on the evidence as to whether you would have understood or appreciated the risk your stabbing the deceased in the way you did posed to him as a consequence of the alcohol you had consumed.   Having presided at trial, heard the evidence and the emphasis on that issue and having considered the jury verdict I consider that in this case the jury must have accepted, given the nature and number of the stab wounds, that you intended to cause serious injury to the deceased when you attacked him in the way you did but that you were so affected by alcohol that you were unable to or did not appreciate that death would ensue.  That is the reason for their verdict.

[13]     Mr Southon you are 37 years old.  You are the father of a young child.  The pre-sentence report shows that you had a disrupted childhood.   Your father was apparently entrenched  in  gang  culture  and  was  violent  towards  his  partner  and towards his children.  From the age of 15 you have effectively been on your own. You now have the support of your mother.  At an early age you got into using drugs and solvents.  But more recently and to your credit you obtained employment and were a specialist operator with Higgins Contractors for four years or so.  You also engaged in sport.   You have also completed a three year civil engineering course through the Waikato Institute of Technology, and since you have been in custody you  have  completed  a  small  business  management  course.    Those  steps  might suggest a growing maturity.

[14]     The probation officer also notes that you say you have not used drugs or alcohol since being in custody.  You have also expressed remorse and say that you regret stabbing Mr Hanson and killing him.  But the probation officer also notes that you have a sense of entitlement with interpersonal relationships and you use aggression and violence to satisfy your own needs and agendas.  You yourself accept that you react violently when under stress.  Put colloquially it means that if you don’t get your own way when you are dealing with people you can resort to violence.  That is what is dangerous about your behaviour.

[15]     You have a long list of previous convictions, in total 50, without taking account of your appearances in the Youth Court.  The convictions date back to 1985. The most relevant and serious one is injuring with intent to commit grievous bodily harm in 1991.   The victim in that case was a solicitor who had represented your brother at sentencing.  You considered he had not done a good enough job and you set out to cause him mental and spiritual pain by stabbing him.   They were your words at the time.  You stabbed the victim twice.  In sentencing you to four years seven months’ imprisonment the Judge at the time noted the callous indifference with which you had left the victim to his fate and your disturbing pattern at that time of violent offending.   He noted that you seemed to consider you were justified in seeking revenge and did not appreciate the enormity and irrationality of what you had done.

[16]     You  have  a  number  of  other  convictions  for  violent  offending  including assault on police, aggravated robbery in 1986 and injuring with intent to injure and aggravated assaults in 1985.   To your credit I note that the last offence involving violence, for which you have a conviction, was the one I have just referred to which related to offending in 1991.  And on release from prison you did take the steps that I have referred to, to get a permanent job and to stay out of prison at least until this last and serious incident.

[17]     In  sentencing  you  I  am  required  to  take  into  account  the  purposes  and principles of the Sentencing Act.  In this case the purposes of particular relevance are:

•   to hold you accountable for the harm done to the deceased, his family and the community by your violent offending.   It is apparent from the victim impact reports that your offending has had significant impact on the victim’s family.  All the reports speak of a sense of loss, and understandably so;

•   to promote in you a sense of responsibility and acknowledgement of the harm that your actions have caused other people;

•   to denounce your conduct, taking the life of another;

•   to deter you and others from committing offences of violence with weapons;

•   and to protect the community from you.

[18]     In terms of the principles I take into account:

•   the gravity of the offending including the degree of your culpability which is reflected by the jury verdict;

•   the seriousness of the offence as indicated by the maximum penalty.  As I have said the maximum penalty is life imprisonment;

•   the general desirability of consistency amongst sentencing.  Although there is no tariff for manslaughter cases, the most helpful guide is the sentences imposed by this Court and by the Court of Appeal in similar cases.

[19]     I am also required to consider aggravating factors relating to the offending. The use of the knife is an aggravating factor.  Manslaughter may occur in a number of situations.  It might simply follow a push with the victim falling and hitting his head on the kerb.  Clearly the manslaughter in this case is much more serious.  You brought a knife to the property and you stabbed the victim, the deceased, repeatedly.

[20]     The next aggravating factor is that the offence occurred in the course of your attempts to gain entry into a dwelling house, someone else’s home, after you had been told to leave.  Because of your relationship with your former partner you might

have had the right to be there, in the first place, but once you were told to leave you should have left.  It was your determined efforts and intention to get into the house that led ultimately to Mr Hanson’s death.

[21]     The  first  issue  which  the  Court  has  to  consider  is  whether  a  term  of preventive detention should be imposed as is sought by the Crown or whether a finite term of imprisonment for a term of years would be sufficient.

[22]     Mr  Tennet  has  submitted  the  Court  should  not  consider  a  sentence  of preventive detention given that your conviction for manslaughter followed a retrial. At the first trial you were convicted of murder and sentenced to life imprisonment with a minimum non parole period of 10 years.   You successfully appealed that conviction on the ground that inadmissible evidence had been allowed to be led before the jury.   Mr Tennet submits that preventive detention is a more severe sentence than life imprisonment and in light of the Court of Appeal’s decision in R v Stoves CA457/04 24 May 2005 and R v Miers (1994) 11 CRNZ 307 that to impose a sentence of preventive detention would have the appearance of punishing you more for the second trial.  In my judgment that submission is misconceived.  A sentence of preventive   detention   is   not   to   be   considered   a   graver   sentence   than   life imprisonment.   Preventive detention and life imprisonment are both indeterminate sentences.  I refer to the definitions in s 4 of the Sentencing Act 2002 and s 4 of the Parole Act 2002.   Offenders subject to either preventive detention or life imprisonment have no release date (by reference to s 86(3) of the Parole Act 2002) but may nevertheless be eligible for parole provided they have served any minimum non parole period to which they are subject.

[23]     As in my view preventive detention is not to be considered a graver sentence than life imprisonment no issue arises over the imposition of a different sentence imposed  after  a  lesser  conviction  on  a  retrial  so  long  as  the  imposition  of  the sentence itself is justified:  R v Stoves at paras [25] – [26].

[24]     On the basis that there is jurisdiction for a Court to consider a sentence of preventive detention I turn to consider whether such a sentence should be imposed in your case.  Before the Court can impose a sentence the Court must be satisfied as to

three pre-conditions.  Manslaughter is a qualifying offence.  You were over the age of 18 at the time of the offending.  The only remaining pre-condition is for the Court to be satisfied that you are likely to commit another qualifying offence if released at the expiry date of the finite sentence.   That last consideration is to be determined having regard to the criteria in s 87(4) of the Act including:

•   Any pattern of serious offending – as I have said you have a list of violence related convictions but, also as I have noted, your last offence before this current offending was in 1991.   The writer of the psychological report considers the current offence represents a reconfirmation of  your continued use of serious violence into your thirties.   However, on the other hand the break in your offending between 1991 and 2004, even taking account of the time spent in prison, is not supportive of a recent pattern of such offending.

•   Seriousness of harm to the community caused by the offending.  Serious violence especially violence that has resulted in death clearly has serious consequences for the community.

•   Next, information indicating a tendency to commit serious offences in the future.

As is required reports were obtained from a psychiatrist and a psychologist for the sentencing.  In addition there are earlier reports from 2005 that were prepared for your sentencing at that time.   In his most recent report Dr Dean, the psychiatrist, concludes that you have in fact a number of positive features that reduce your risk of further re-offending, namely your desire to gain and maintain employment, your reduction in anger discontrol and a more positive attitude towards life.  On the other hand the psychologist Ms Williams has assessed you as being at high risk for further serious violent offending, mainly on the basis that you have continued to re-offend despite previous sanctions.  In her report Ms Williams relied on a number of assessments carried out by Mr Kilgour in the earlier report.   Ms Williams considered the RoC*Rol risk measure and the Psychopathy Checklist:   Screening Version (PCL:SV) test.   She considers that you are in need of and suitable for intensive intervention for violent recidivism. Ms Williams was called for cross-examination on her report.   In the course of that  cross-examination  she  expressed  some  reservation  as  to  whether  such

intervention would ultimately be successful.  But she noted that that is perhaps speculative.  Ms Williams also noted in her report that there are some positive aspects of your presentation, namely your willingness to discuss the offence and your recognition that you have interpersonal difficulties in your relationships. She suggested that supported the view you might be capable of engaging in the intensive treatment programming for your offending.

•   The absence of or failure of efforts by you to address the cause or causes of your offending.  You now apparently admit and accept you have a violence problem and the strategies that you have learnt so far have only had limited effect.  You did reject an invitation to attend an offending related programme in 1992 but you have attended programmes related to anger management and addictions.   As noted on your release from the sentence from the 1991 offending you obtained stable, focused employment and evidently reduced your substance abuse.  You have also abstained from alcohol since the current offence.

•   Finally,  a  lengthy determinate  sentence  is  preferable  if  it  provides  adequate protection for society.  In my researches I have not found a case where a sentence of preventive detention has been imposed in respect of a single count of manslaughter although it has been imposed on offenders with previous manslaughter convictions.  I refer to the case  R v Akarana CA40/06 2 October

2006.  This does not mean that manslaughter is not serious enough to warrant a sentence of preventive detention, but it may reflect that the use of preventive detention has generally been imposed where there are more regular patterns of less violent offending given that the maximum penalty for manslaughter is life imprisonment.

[25]     I bear in mind the observations of the Court of Appeal in R v C [2003] 1

NZLR 30 that:

•   the purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members;

•   establishing the three pre-conditions to the imposition of a sentence of preventive detention does not mandate a sentence of preventive detention.   It remains a matter of discretion;  and

•   the sentence is not one of last resort although its imposition must be carefully considered.

[26]     Mr  Southon  in  the  present  case,  on  balance,  I  consider  that  as  the psychologist was prepared to accept, your risk of re-offending can be addressed, at least in part, by an intensive and focussed programme whilst you are in custody.  The Crown submit the value of any such intervention may be lost if you are in prison for a lengthy term.   But it is for the authorities to ensure that appropriate courses are available to you and for the Parole Board to ensure that you have the necessary support and have attended appropriate courses before you are released on parole. While the results of any such courses may be speculative I am influenced by and take into account the steps you took to rehabilitate yourself between your last offending in 1991 and your current offending and the length of time that you have remained conviction free during that period.  More than that that you have gained useful employment and taken steps to improve yourself by the courses you attended. There has been reference in the materials that you accept you used violence in your domestic relationship during that period but I note that there are no convictions for that.  Given that you volunteered that information yourself I consider that that is also to be seen as a sign of your acceptance of the problems that you must face up to.  In my judgment a lengthy finite term of imprisonment together with an appropriate minimum  term  will  meet  the need  for  the protection  of  society.    I decline  the application for preventive detention.

[27]     Mr Southon I then turn to consider the appropriate finite sentence for you. The Crown submit a start point of about 12 years might be appropriate.  That was on the basis of provocation being the jury finding.   Alternatively taking R v Taueki [2005] 3 NZLR 372 as a guideline the Crown says that the factors in this case clearly would put your offending in the third band and towards the top of that band. Mr Tennet submits that a start point of 10 years might be appropriate.

[28]     In fixing the start point I have regard to the purposes and principles of the Act that  I have  referred  to.    I also  take  into  account  the  features  of this  particular offending that I have identified.  I have also had regard to a number of authorities including R v Clarke [2000] 3 NZLR 354; R v Blackmore (CA29/05 18 May 2005); R v Laungaue (CA32/06 1 September 2006);  R v Edwards [2005] 2 NZLR 709; R v Leuta [2002] 1 NZLR 215; R  v  Leonard  (CA269/95  6  September  1995);  R  v Rongonui (CA321/00 9 May 2001); R v Kohai (CA65/90 25 June 1990);  and R v Crutchley (1989) 4 CRNZ 487.   This offending has some similarities with that of Leonard and Blackmore.   In Leonard the prisoner had spent the day drinking and fuming over the relationship difficulty he had with his de facto partner.  He argued with her when she returned home.  He took a filleting knife from the kitchen, broke down the locked door of the toilet that she was hiding in and stabbed her three times and killed her.  He was charged with murder.  He argued that he was in such a state he did not know that death was likely to ensue.   The jury returned a verdict of manslaughter.  The Court of Appeal acknowledged that while the offending could not be described as carefully planned or deliberate, that explained why the offence was not murder rather than mitigating the seriousness of the offence of the manslaughter.  The Court of Appeal upheld a sentence of 15 years in that case.

[29]     Blackmore also killed his former de facto partner.  He found out where she was staying, went to the address and intended to discuss matters with her but he took a knife.  He pinned her against the door when she answered it and he stabbed her. Again the jury returned a verdict of manslaughter, in that case on the basis of provocation.  A start point of 13 to 14 years’ imprisonment was taken by the Court. A final sentence of 11 years, taking account of mitigating factors, was imposed.

[30]     Each case must, however, be determined on its own facts.  Mr Southon this case, in which you have killed Mr Hanson, was a violent and repeated attack with a weapon on a defenceless man.  It is a bad case of manslaughter.

[31]     I take as a start point a sentence of 12 years’ imprisonment.  I consider it is necessary to increase that start point for the personal aggravating features in this case, namely your previous history and particularly the serious offending in 1991.  In doing so I have regard to s 9(1)(j) of the Sentencing Act 2002.

[32]     However, I accept that given the length of time that has passed since that offending the increase will not be as great as it would have been if the offending was closer in time.  An increase of one year is required.

[33]     I turn then to consider mitigating factors.  The only mitigating factor that I can properly take into account in this case Mr Southon is your remorse that you have expressed.  I accept the remorse that you have expressed to the probation officer is genuine and an acceptance of the enormity of what you have done in this case.  For that remorse and acceptance of your responsibility for Mr Hanson’s death I propose to reduce the sentence by one year.

[34]   Mr Southon please stand.   The end result is that you are convicted of manslaughter and sentenced to imprisonment for a period of 12 years.

[35]     The Crown seek a minimum term of imprisonment.  The Court may impose a minimum period if a minimum term is required because the period otherwise applicable under the Parole Act would be insufficient for the purposes of:

•   holding you accountable for the harm done to the victim and community;

•   denouncing your conduct;

•   deterring you;  and

•   protecting the community.

[36]     Mr Southon in your case, given your previous record and the nature of this offending, the minimum period otherwise applicable under the Parole Act would not satisfy the requirements of holding you accountable, deterring you from committing the same or similar offending in the future and, importantly, protecting the community.  A minimum non parole period of two-thirds is required.   You are to

serve a minimum non parole period of eight years.  Stand down.

Venning J