R v Stewart

[2013] NZHC 126

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-091-3033 [2013] NZHC 126

THE QUEEN

v

MANAWANUI REREWHAITARANGI STEWART

Hearing:         8 February 2013

Counsel:         K Feltham for Crown

C W J Stevenson for Accused

Sentence:       8 February 2013

SENTENCE OF RONALD YOUNG J

[1]      Mr Stewart, before I sentence you I need to give you a warning relating to what is called the three strikes law.  Given your conviction for manslaughter, you are now subject to the three strikes law. And I am now going to give you that warning of the consequences of another serious violent conviction.   You will also be given a written warning.

[2]      If you are convicted of any one or more serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.

[3]      If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to

R V MANAWANUI REREWHAITARANGI STEWART HC WN CRI 2012-091-3033 [8 February 2013]

do so.   In that event the Judge must sentence you to a minimum term of imprisonment.

[4]      I want to say to those in the back of the Court that no sentence I can impose today is meant to say that this is what Izak’s life is worth.  No Judge and no sentence in a Court can ever do this.

[5]      Mr Stewart, you are for sentence having pleaded guilty to manslaughter.  The events   that   give   rise   to   Izak   Millanta’s   death   began   on   the   morning   of

11 August 2012 but there is, however, some background to the events.

[6]      It seems that Izak and his brother, Tane, whom you have also pleaded guilty to assaulting that night, had been involved in a confrontation with an associate of yours.  And so by the night of 11 August there was considerable tension between the two Millanta brothers and you and your associates.

[7]      You and another man arrived at the Kapiti Lights Complex just after midnight on 11 August.  You stayed in the other man’s car, drinking and talking with other friends who were nearby.  At about 1.00 a.m. you entered the Retro Bar but returned shortly afterwards for more alcohol.   You saw Tane Millanta walking towards the Retro Bar and you went over and punched him two or three times in the face, knocking him to the ground before going back to the bar.  Later you apologised to Tane.

[8]      You  have  also  pleaded  guilty to  assault  with  intent  to  injure  that  night. Earlier in the evening a scuffle broke out between the victim and another person who was known to you.  You stepped in and punched Mr Strongman-Linter in the face once knocking him unconscious to the ground.  You then dragged him toward State Highway 1.  Bystanders pleaded with you to leave the victim alone and so he was dragged back onto the footpath.

[9]      By 2.00 a.m. you were asked to leave the bar and you walked to the car park to find that a fight had broken out between your associates and another group.  The other man with you confronted Izak Millanta and a friend, Mr Wawatai.  Mr Wawatai

was punched to the ground. You then approached Izak and told him to leave the area and stay away.   Mr Millanta was about 10 to 15 metres away from you, backing away toward the car park.  You then claimed that Mr Millanta began being cheeky towards you and laughing as he went away.

[10]     It seems that you then became offended by his attitude.  You thought you had been helping Izak Millanta avoid a potential assault and in response he had laughed at you. And so you ran after him with another person.  Izak tried to get away yelling at you that he was sorry and to leave him alone.

[11]     You ran after him for over 280 metres and when you finally caught up with him outside the ANZ Bank.  You pushed him from side to side causing him to fall to the ground.  You then put your right knee on his sternum and held his right hand above his head and you punched him in the face, more than once.  The other person present urged you to stop but you then got off Mr Millanta and stomped on his abdomen causing him to moan in pain.  You kept your foot on his abdomen, digging your heel in and leaning forward to place a substantial part of your body weight on his chest.  You told him that he had got what he deserved because of the way he had behaved.  You then put him in the recovery position, he was touching his abdomen and moaning, and you left him.

[12]     The Police discovered Izak Millanta unconscious and unresponsive a short time later.   Emergency services arrived and conducted CPR on him and he was transported to Wellington Hospital for surgery but he died 24 hours later after the assault of severe internal injuries caused by your violence to him.

[13]     The fact that the Crown accepted your plead of manslaughter indicates that you unlawfully caused the death of Izak Millanta but when you did so you did not intend to kill him.

[14]     As to the pre-sentence report, it tells me that you are 26 years of age, that you had a difficult upbringing witnessing verbal and physical abuse and that you left your home early and spent a period living a transient lifestyle on the streets.

[15]     You said on the day of the offending that you had consumed a considerable amount  of  alcohol  but  you  claimed  that  you  were  sincerely remorseful  for  the offending and the grief that you have caused Izak’s family.

[16]     While you do not have a long history of convictions, you do have two serious convictions for violence particularly assaulting a female and wounding with intent to injure.

[17]     I  have  read  your  counsel  submissions  and  I  take  into  account  those submissions together with the oral submissions he made today.   He says that the important  factor  when  considering  what  happened  that  evening  is  to  take  into account that you neither intended to cause serious harm nor thought your actions could cause serious harm.   He says you should be sentenced on that basis.   He stresses your disbelief that Izak died on account of your assault of him.

[18]     He says the proper starting point, based on other cases, is four to four and a half years’ imprisonment but he says that you’re offending, while more serious than those who are sentenced for single punch manslaughter, is only slightly more so.  He stresses no weapons were used, there were not multiple attackers and Izak’s head was not targeted with sustained and serious violence.

[19]     Your  counsel  says  that  you  pleaded  guilty  at  the  earliest  reasonable opportunity and that you have acknowledged wrong doing and have unwavering remorse and that credit is due to that.  You have offered and are prepared to front up to the deceased’s family and attend a restorative justice conference and apologise to them in person.

[20]     The Crown submissions are that in sentencing I should take into account that there were three assaults that night all with a common theme of aggression fuelled by alcohol.  They stress the immediate instigation of your attack on Izak was a minor verbal altercation.  They say that the assault occurred when he posed no danger to you or to the other men and it was done solely to teach him a lesson.

[21]     The Crown submit that as to personal aggravating and mitigating features, your previous convictions justify an uplift.  You should have a credit for your guilty plea and they acknowledge remorse.

[22]     They say a proper starting point is in the region of six to eight years.

[23]     I have read the victim impact statements and listened carefully to what the victim’s have had to say.   They illustrate, Mr Stewart, once again the horrendous affect that you have had on this family.  It will last for their life. As Ms Wikaira said, Izak’s mother, she has watched her family struggle through another day.   She has seen and felt the anger of that senseless act of violence that took her son.  Her heart is broken and every day is another day without her son.   And I want to publicly acknowledge the terrible effect that the loss of this young man’s life has had on his friends and his family and will continue to have.

[24]     This was a brutal attack on a young man for the most trivial of reasons.  But it is no more than an illustration of your conduct that evening and in the past.   It seems clear that you get intoxicated and this turns you into an aggressive bully.  The most minor slight seems to justify your aggression.  You had a chance to address these problems in your release conditions in 2008, 2009 and 2010, all of which were no doubt designed to help you deal with your drinking problems and aggression.  But these conditions had no effect on your aggressive bullying or your drinking.

[25]     The tragedy is that on two other occasions that night you punched people in the  face  knocking  them  to  the  ground,  and  they  could  easily  themselves  have resulted in the death of these people.  You and other young men violently attacking others seem to have no appreciation or do not care that knocking another human being to the ground can easily result in their death and is the kind of situation the Courts see week in and week out.

[26]     I accept that you may now regret causing the death of this young man.  But you decided that evening, even though you had convictions for serious violence, even though it would have been clear that society would not accept this behaviour,

that you would continue to drink and that you would continue to deal with the most trivial matters by your violence. This was a choice you made.

[27]     As to your culpability there is no doubt in my mind that this was a serious violent persistent attack.  You were with another although they did not participate directly in the assault.  As I have said, you had already acted violently to two others that night.  I accept that you did not target Izak’s head for the extreme violence but the way in which you targeted Izak’s body, it would have been clear to you beyond doubt that he would suffer serious injury as a result of your actions.

[28]     You began the assault by chasing him, not for just a few metres, but for over

280 metres.  You were persistent in your desire for some form of revenge for the trivial slight he offered you.  Even after he was rendered defenceless and others told you to stop, you carried on.

[29]     I am satisfied that the proper starting point for this offending relating to the killing itself is seven and a half years’ imprisonment.   The two other assaults are separate events and justify an additional sentence.   By themselves without a manslaughter they could easily have justified an 18 month prison sentence.   But overall I propose to add a further six months to that start sentence making a starting sentence of eight years’ imprisonment.

[30]     There  could  be  a  justification  for  uplifting  your  start  sentence  for  your previous violent offending.  But I have decided not to do so.

[31]     But  in  my  view  the  only  real  mitigating  feature  is  your  guilty  plea. Conviction was inevitable but the plea came very quickly.   I am not, in the circumstances, prepared to deduct anything further for remorse.  I accept you regret the death of this young man.  But what must be seen and understood is the context of your offending and the many opportunities you have had to deal with your violence and drunkenness.  As I have said you offended in similar ways in the past and you were violent and aggressive on at least two other occasions this evening.

[32]     From the eight year starting point, therefore, I deduct 25 per cent for your plea of guilty.  That reduces the sentence to six years’ imprisonment.  The Crown do not seek a minimum period of imprisonment.

[33]     On manslaughter charge, therefore, you are convicted and sentenced to five years, eight months’ imprisonment.   On the two other charges, four months’ imprisonment, concurrent with each other but cumulative on the five year, eight month, making a total sentence of six years’ imprisonment.

Stand down.

Ronald Young J

Solicitors:

K Feltham, Luke Cunningham & Clere, Wellington, email:  [email protected]

C W J Stevenson, Barrister, Wellington, email:  [email protected]