R v Sullivan HC Wellington CRI 2009-485-86

[2010] NZHC 257

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CRI 2009-485-000086

THE QUEEN

v

SHAUN MIHAKA SULLIVAN ANDREW DEAN KUPA-CAUDWELL RANGITERA SPENCER WALKER

Counsel:         T Gilbert and V Brewer for the Crown

C Stevenson and L Hall for Sullivan
P V Paino and M Lillico for Kupa-Caudwell
G King and L Elder for Walker

Date:              10 February 2010

SENTENCES OF WILD J

Introduction

[1]      The three of  you appear this afternoon for sentence following a three week trial before a jury in this Court last November.

[2]      The jury found you Mr Sullivan, and you Mr Walker, guilty of murdering Mr

Paul Irons.

[3]      Mr Sullivan and Mr Walker, the two of you should know at the outset that the minimum sentence for murder is 10 years imprisonment.

R V SULLIVAN AND ORS HC WN CRI 2009-485-000086  10 February 2010

[4]      The jury found you, Mr Kupa-Caudwell, guilty of manslaughter.  There is no minimum sentence for manslaughter.  But you are liable to life imprisonment.

What happened

[5]      On the night of 8 October 2008 the three of you were at a party at a house in Featherston. All  three  of  you  were  drinking,  and  two  of  you  had  been  drinking before going to the party.

[6]           You, Mr Sullivan, were very drunk. You acted aggressively toward people at the  party, which was a birthday party for  two  young  men. One  of  them  was  Mr Wirihana  Wright. You  punched Mr Wright in  the  nose  with  a  closed  fist  after accusing him of stealing your beer.  You were seen to stand over some of the young women at the party in a way that they told the jury scared them, and you were seen to rummage through their handbags looking for cigarettes.

[7]      Mr Walker, you were also very drunk at the party.  At one stage the man you murdered,  Mr  Irons,  arrived  at  the  party.  It  seemed  to  be  generally  known  in Featherston that Mr Irons had a drug problem, and at one stage he offered you some pills.   It seems he had syringes and perhaps other drug paraphernalia in the bag he was carrying.   Mr Walker, you were overheard to threaten Mr Irons:   “Don’t bring that shit here – I’ll smash your fucking face in”.

[8]      At about 12.30 in the morning the three of you and two other young men left the party in a group.   The five of you walked through Featherston, heading toward the centre, which is on Fitzherbert Street.

[9]      As the group approached Fitzherbert St you, Mr Kupa-Caudwell, were out in front. As you were walking through the Cherry Tree Gardens, you heard someone shouting and yelling and a man came running across Fitzherbert St and ran  up  to you.  This was Mr Irons.  He came right up to you and it seems he may have grabbed at  your  arms.   Mr  Kupa-Caudwell,  you  responded  by taking  a  swing  at  Mr  Irons, possibly two swings.  You told the Police you did that because you felt intimidated.

It is not clear whether your swing or swings at Mr Irons connected.  Mr Irons reacted

by stepping or staggering backwards.  He then ran off across Lyon St.

[10]     You, Mr Sullivan, chased after Mr Irons and tackled him to the ground on or near the  footpath of  Fitzherbert St outside the  Fell Museum.   As  you did this  you were heard to yell at Mr Irons “Come here motherfucker, I got you”.

[11]     Mr Walker, you also ran after Mr Irons and, with Mr Sullivan, you punched

or kicked Mr Irons after he was tackled to the ground.

[12]     Mr Irons was able to get up and get away from  the two of you and he ran across Fitzherbert St toward the Triangle Gardens. Mr Irons’ blood was found on the footpath and on the road, indicating the blows you struck at him on the footpath outside the Fell Museum did some damage – possibly caused a bleeding nose.

[13]     It seems that Mr Irons tripped as he crossed the kerb and fell sprawling onto the grassed area of the Triangle Gardens.

[14]     Both you Mr Sullivan and you Mr Walker ran after him again, and you set upon him, kicking him, as he lay sprawled on the ground on the grassed area of the Triangle Gardens.

[15]     You, Mr Kupa-Caudwell, followed more slowly, perhaps because of your weak right leg, but you joined Mr Sullivan and Mr Walker and together the three of you kicked Mr Irons on the ground. You were kicking at his body and at his head. One of the two eye witnesses, Mr Poutu, described seeing all three of  you around and near Mr Irons as he lay on the ground, and seeing at least two of you kicking Mr Irons. I am in no doubt that you, Mr Kupa-Caudwell, helped in this part of the attack

on Mr Irons, because you admitted that to Mr Poutu and his girlfriend Ms Churcher

in Featherston the following morning. You told them you just wanted to forget about it. You said Shaun (Sullivan) had done most of it but that you “helped and putin some hits”.

[16]     Mr Kupa-Caudwell, the jury’s verdict of guilty of manslaughter indicates that they were not sure that you joined in this kicking with murderous intent.  That is, the jury were not sure that  you joined  in knowing the kicks might result in Mr  Irons’ death, and not caring whether or not they did.

[17]     Mr Kupa-Caudwell, the evidence was that you left the Triangle Gardens one

or two minutes before Mr Sullivan and Mr Walker, and came back across the road to join your friend Mr Poutu near the flax bush shrubbery outside the Fell Museum.  Mr Murray may also have been at the flax bushes, or he may have stayed over on the corner of the Cherry Tree Gardens.

[18]     After Mr Kupa-Caudwell had left the Triangle Gardens, you, Mr  Sullivan, and you Mr Walker, continued to assault Mr Irons. At some stage you dragged him into the shrubbery area of the Gardens.  Mr Sullivan, in addition to kicking Mr Irons

in the head and body, I find that you did what you later admitted to a fellow prisoner

in Rimutaka Prison you had done.   You told him you had put in two big stomps on Mr Irons’ face while he was lying on the ground gurgling blood – two big stomps to put him out of his misery – to finish him off (Notes of Evidence 926, 983):

[19]     I find that you, Mr Walker, kicked at Mr  Irons’  body  and  head,  and  also stomped on his head a number of times. You admitted to friends the following day that  you  had done that. One of those  friends, a particularly impressive  witness in terms of the clarity of her evidence, said that you told her you had:

...done a lot of head damage. (Notes of evidence 622/2)

... stomped on his head a lot. (Notes of evidence 630/5)

[20]     One of the two eye witnesses, Mr Murray, identified you, Mr Walker, as the person he saw stomping on something in the Triangle Gardens – stomping as if you were trying to squash something on the ground. Although he could not see Mr Irons’  body lying on the  ground,  I  am  in  no  doubt  that  what  he  saw  was  you

stomping on Mr Irons as he lay in the shrubbery area, his body obscured from Mr

Murray’s view by the low azalea bushes.

[21]     In summary, all three of you  were  involved  in  killing  Mr  Irons.   You  Mr

Sullivan and you Mr Walker each inflicted a number of the kicks to Mr Irons’ head

or the stomps on his head that did the bulk of the fatal damage. Each of you, in a drunken state, kicked and  stomped  on  a  defenceless  man  lying  on  the  ground  and killed  him. It  was  vicious,  gratuitous  and  cowardly  violence. There  is  little  if anything  worse  than  the  cowardice  of  two  or  more  men  setting  upon  one  man, particularly when that one man is defenceless, as Mr Irons was.

[22]     Mr Kupa-Caudwell, I have already said that I agree with the jury’s verdict. You were involved in killing Mr Irons, but without a murderous intent.  And I have found that your role was a lesser one:  you did some kicking but you left the Triangle Gardens before the kicks and stomps that did the real damage were inflicted.

[23]     I turn now to consider each of you individually.

Mr Sullivan

[24]     Mr Sullivan, you are 26.  So you are 10 years older than Mr Walker.  I accept you had a disadvantaged upbringing.  Those entrusted with your care when you were

a child and young person  were  violent  and  abusive  towards  you. Probably as a result, your life has been marked by anger and aggression by you toward  others. That is demonstrated by your 29 previous convictions, 12 of them for violent offences. You were sentenced to imprisonment for aggravated robbery in 2001 and again in 2003, and then again imprisoned in early 2006  for injuring with intent to injure on two quite separate occasions. On the night  you murdered Mr Irons,  you again demonstrated your anger and aggression at the birthday party in the way I have mentioned. And you were the one who  precipitated  this  murder  by  pursuing  Mr

Irons,  threatening  him,  tackling  him  to  the  ground,  and  then  attacking  him  with punches and kicks.

[25]     You have a drinking problem.   I have already mentioned that you were very drunk on the night you murdered Mr Irons.

[26]     Your  lifestyle  at  the  time  was  transient. You had been travelling between Featherston, Upper Hutt, Porirua, Hawera and Hawkes Bay. I note your explanation that you did not like staying in one town because too many people knew you.

[27]     You claim you were shattered when you realised you had killed Mr Irons.   I

do not accept that.  Your actions over the following days do not suggest remorse, but rather deliberate steps to destroy the evidence of  your own involvement and to try and disassociate yourself.

[28]     I  said  at  the  outset  that  the  minimum  sentence  I  can  impose  on  you  is  10 years  imprisonment. I  reiterate,  minimum. That  is  because  yours  is  not  a  case where  10  years  imprisonment  would  be  manifestly  unjust  –  the  only  situation  in which I could impose a lesser sentence on you.

[29]     But nor do I consider s 104 Sentencing Act 2002 applies to you.  That is my decision after looking at the cases[1] on clauses (e) and (g) of s 104, which are the only two clauses that could arguably apply to what you did.

[1] R v Slade [2005] 2 NZLR 526; R v Houma [2008] NZCA 512; R v Namana [2001] 2 NZLR 448; R v

MacLaughlin HC AK CRI 2004-92-4430 11 October 2005; R v Ranapia HC WHA CRI 2008-088-

4443 23 October 2009; R v Barlow HC AK CRI 2003-019-01 27 April 2007; R v Craig HC CHCH CRI 2007-009-695 30 August 2007; R v Smail [2007] 1 NZLR 411; R v Baker [2007] NZCA 277 and

R v Key HC AK CRI 2006-092-12705 14 May 2009.

[30]     My task is to impose on you a sentence which does four things. First and perhaps foremost, a sentence which holds you accountable for murdering Mr Irons and for the loss and harm that has inflicted, particularly on his family and friends, and on the Featherston community. I hope you have read all the victim impact statements. It is clear from them, particularly those two that were read out in Court this afternoon, the sadness and loss –  and unfortunately the bitterness – Mr  Irons’

murder has caused.   Secondly, a sentence which denounces, on behalf of all right-

1  

thinking  New  Zealanders,  this  murder. Thirdly,  a  sentence  which  is  a  deterrent. Lastly,  a  sentence  which  protects  the  community,  particularly  the  Featherston community  in  which  you  were  living,  from  you. Relevant  to  deterrence,  and protection  of  the  community,  is  the  fact  that  this  is  your  thirteenth  and  fourteenth convictions  for  violent  offending,  the  seriousness  of  which   I  think  has  been increasing.  The report I have assesses you as being at a high risk of reoffending.

[31]     The sentence that achieves those four aims and is in line with what I consider

are sentences in comparable  cases[2], is one  of  life  imprisonment  with  a  minimum term of 12 years imprisonment. In other words you will not be eligible for release

[2] R v  Sauaki  HC  AK  CRI  2006-092-9497  31  October  2007;  R v Piilua HC CHCH CRI 2005-09-

11878 1 September 2006 and R v Fa’Avae HC AK CRI 2006-204-748 10 July 2008

on parole for 12 years.  That is the sentence I impose on you Mr Sullivan.

[32]     You are also for sentence on the charge of assaulting Mr Wright at the party earlier on the night of 8 October 2008.   You pleaded guilty to that on 15 June last year. On  that  charge,  I  sentence  you  to  a  concurrent  term  of  one  month’s imprisonment.

Mr Walker

[33]     Mr Walker, you are 16.  You were just 15 years and 4 months old when you murdered Mr Irons.

[34]     You have had a good upbringing. However, for at least several months before  you  murdered  Mr  Irons  –  and  possibly  well  before  that  –  you  were  out  of control, and  you know that.   You had been suspended from school.   At  times you were living away from home.  You were drinking excessively and smoking cannabis daily.  The psychologist’s report that I have indicates that you have serious problems with drink and drugs that you will need to overcome.

[35]     You  appear  this  afternoon  as  a  first  offender. Or,  at  least,  you  have  no previous convictions, although the psychologist reports you telling him that you got

money for cannabis from burglaries.

.

[36]     You were so drunk and stoned when  you murdered Mr Irons that  you have had to accept that you cannot really remember what happened.

[37]     I accept that you were very sorry for what you did, and are motivated to try and get your life in order, and achieve something worthwhile for yourself.

[38]     You are assessed as being at low risk of reoffending.

[39]     What I said to Mr Sullivan when sentencing him applies to you also, but with three qualifications. The first  is  your  age  –  just  over  15  when  you  murdered  Mr Irons.  You are now 16.  I agree with the report writer’s assessment that you were – and I think really still are - more a boy than a man. You are entitled to have your youth and susceptibility taken into account. I judge that you were swept up in what happened. You were certainly not the  instigator, although  I  have  not  overlooked your threat of violence to Mr Irons, at the party earlier that night.

[40]     Secondly,  you  have  no  previous  convictions.   On  the  basis  of  everything  I have read about you, I accept that what you did was out of character, or at least was violence of a sort you have not been involved in before.

[41]     Thirdly,  I  accept  that  you  are  truly  remorseful. Listening to the  evidence during the trial, it seemed to me that the horror of what  you had done hit  you the following  day. I  think   you  were  overcome  with   guilt  and   remorse,  though unfortunately  not  sufficiently  to  follow  the  advice  of  your  friends,  and  go  to  the Police  straight  away  and  confess  fully  what  you  had  done.   I  think  you  were  too overcome by fear and confusion to do that.

[42]     Although I am unable, on the basis of the evidence  at  trial,  to  differentiate between your role and Mr Sullivan’s in killing Mr Irons in terms of blameworthiness, I make allowance for the three matters relating to you personally by sentencing you to life imprisonment with a minimum term of 11 years imprisonment.

Mr Kupa-Caudwell

[43]     Mr  Kupa-Caudwell,  you  are  now  18.   You  were  17  when  you  took  part  in killing Mr Irons.

[44]     You come from a very supportive family.   You were doing well at school –

academically, but particularly in sport – until you contracted a life threatening cancer

in your right leg in 2003.   You had chemotherapy and then an operation to replace your right knee joint.

[45]     Following that, although not immediately, you went downhill.  By 2007-2008

your academic performance at school was – to quote your own words – “real crap”.

By then you were at school in Featherston.  You had brushes with the law, although none that resulted in a  conviction.   You were drinking and behaving aggressively, including becoming involved in fights.  I accept the opinion of Dr Barry-Walsh that your  cancer  and  its  aftermath  were  a  significant  cause  of  or  contributor  to  those problems.

[46]     Following Mr Irons’ death, your family left Featherston.   All the material I have read, and there is a lot of it, points to a major turnaround in your performance and attitude at college and at home, and demonstrates that you are now again doing well.

[47]     Your counsel and family, supported by Dr Barry-Walsh, make a strong plea

to me to sentence you to home detention, preferably in your own family home.  They contend that nothing would be achieved by sentencing you to imprisonment.

[48]     As far as you are concerned, Mr Kupa-Caudwell, I accept that.   Sentencing you to imprisonment is not likely to achieve anything for you, and unfortunately may well considerably harm you.

[49]     But, unfortunately, it is not just  your interests – your rehabilitation – that  I

must consider.

[50]     When sentencing Mr Sullivan and Mr Walker, I referred to the need to hold each of you accountable for your part in killing Mr Irons, and to denounce publicly what each of  you did.   In the plain language  I prefer, “hold accountable” means  I must punish you.

[51]     The jury found you did not intend to kill Mr Irons, because you left the scene before the really serious injuries were inflicted. Nevertheless, I have found that you joined in kicking Mr Irons in the body and head while he was lying defenceless on the grass in the Triangle Gardens. That was intentional and gratuitous violence on your part. If you were justified in lashing out at Mr Irons when he first came running

up  to  you  in  the  Cherry  Tree  Gardens,  then  you  were  certainly  not  justified  in participating in what followed, after Mr Irons was twice chased and twice attacked lying on the ground.

[52]     I regret – and I do regret – that your involvement in killing Mr Irons is just too serious to permit a sentence of home detention, which cannot be for longer than

12   months. Such   a   sentence   would   rightly   be   seen   as   an   inadequate   and inappropriate response for the serious crime of manslaughter of which the jury found you guilty.

[53]     And, Mr Kupa-Caudwell, I think the Crown is justified in submitting that you still have not grasped the seriousness of your involvement in this offending. Although you claim to accept responsibility in terms of the law, I do not think you accept that you were physically involved in killing Mr Irons – in kicking him in the body and the head while he was lying on the ground. But may I remind you of two

of the texts you sent your girlfriend that night.  Before the incident there was the text

in which you said:

... we gonna see if anyone wants to fight later at this party down the road.

And after the incident there was the text which read:

I just got a crack and murdered someone.

Your girlfriend Ms McKenna told the jury she interpreted that as meaning that you’d got in a fight and murdered someone.

[54]     Having considered sentences imposed for comparable crimes of manslaughter – and there are lots of them[3]  – I take a sentencing starting point of 7 years imprisonment for you.

[3] R v Ralm CA32/93 5 October 1993; R v Maihi HC WHA T030025 28 May 2004; R v Kulitapa and

Lanivia HC AK CRI 2006-024-0487 21 February 2008; R v Vi HC AK CRI 2007-404-0362 7 October

2008; R v Tukaki HC AK CRI 2003-019-01 27 April 2007; R v Clarke HC ROT CRI 2009-270-073

29 May 2009; R v Kumeroa CA64/01 16 May 2001; R v Tuaimalo HC AK CRI 2006-092-11901 12

December 2007 and R v Jamieson HC TIM CRI 2008-076-0328 12 February 2009.

[55]     To reflect your young age, the impact Dr Barry-Walsh considers your cancer had on your behaviour at the time, the fact that you have no previous convictions, and  the  12  months  approximately  you  have  been  on  electronically  monitored  bail with somewhat restrictive terms – and I deliberately put that factor last –  I reduce that 7 year starting point by one year – or approximately 15% - to a sentence of 6 years imprisonment.

[56]     I consider that a minimum period of imprisonment of 3 years is required to reflect the seriousness of your offending.

[57]     Thus,  Mr  Kupa-Caudwell,  I  sentence  you  to  6  years  imprisonment  with  a minimum period of imprisonment of 3 years.

[58]     All three of you can now stand down.