R v Tepana

[2013] NZHC 1592

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-092-016749 [2013] NZHC 1592

THE QUEEN

v

PATRICK KOTI TEPANA

Hearing:                   27 June 2013

Appearances:           A L Patterson for the Crown

C Muston for the Prisoner

Sentence:                 27 June 2013

SENTENCING NOTES OF WOOLFORD J

Counsel:

C Muston, Barrister, Whangarei

A L Patterson, Crown Solicitor, Whangarei

R v TEPANA [2013] NZHC 1592 [27 June 2013]

Introduction

[1]      Patrick  Tepana,  you  appear  for  sentence  today  having  been  convicted following a jury trial on one charge of manslaughter.  You are liable to a maximum sentence of life imprisonment.

Factual background

[2]      At  the time of  your  offending  you  were  a sheet  metal  worker  living  in Dargaville.  Your victim was Christopher Edwards who was 61 years of age at the time of his death.  He was your stepfather, having been your mother’s partner for 30 years. You knew him well.

[3]      The events giving rise to the charge of manslaughter occurred on 10 January

2012.  On this day you were at the home of your mother and stepfather.  At the time you were bailed to their address with a curfew because you were facing charges of assault against your own partner to which you later pleaded guilty.  That evening, a number of family members were also at the address.  You were all seated around a table in the kitchen/dining room area.  Mr Edwards was present and socialising with you all.

[4]      You were all consuming alcohol.   At some stage during the course of the evening you became angry at Mr Edwards.  As Mr Edwards remained seated you stood up and punched him several times to the head and face with your fists.  He had no opportunity to defend himself against your blows and he did not retaliate.  Other family  members  intervened  to  prevent  you  from  inflicting  further  blows.    Mr Edwards sustained bruising to his face, including a black eye and a small cut above his lip.  It seems everyone continued drinking before eventually going to bed.

[5]      You say that it was an accident because all you wanted to do was to stop Mr Edwards from choking you around the neck following his accusation that you had stolen his mag wheels.  I reject that explanation, having heard all the evidence.  You did not say that to Detective Crawford or Constable Curnow instead admitting that you punched Mr Edwards or gave him three smacks.  You also told the presentence report writer that you have no memory of the assault.

[6]      I prefer the evidence of the other witnesses who say you were intensely but misguidedly jealous of your partner.  In that regard I accept her evidence when she said that some days earlier you had threatened to kill her and Mr Edwards if anything did happen between them.  That to my mind is the explanation for the assault.  It was no accident Mr Tepana.

[7]      In any event Mr Edwards got up reasonably early next morning but obviously feeling  unwell  later  went  back  to  bed.    Several  hours  later  family  members discovered him in an unconscious and unresponsive state in his bed.  He had vomited blood and bile throughout his bed.   Family members called an ambulance.   The ambulance staff considered him to be in  a critical condition and  an  emergency helicopter transported him to Whangarei Hospital.  Hospital staff gave Mr Edwards a CT scan and he was found to have a significant bleed in his brain.

[8]      He was flown by emergency helicopter to Auckland Central Hospital.   He underwent surgery there but died at 4.00am on 13 January 2012.   A post mortem indicated that the cause of death was a subdural brain haemorrhage consistent with one or more blows to the head.

[9]      On 13 January 2012 you were advised by police that Mr Edwards had died. You stated that you had only given the victim “three smacks”.  You said that they weren’t major punches and can’t have been that bad.

Personal circumstances

[10]     I turn now to your personal circumstances.  You are 44 years of age and are of Ngapuhi descent.  You have eight children and consider your partner to be your main source of support.

[11]     You grew up in a large family where you were a victim of violence and sexual abuse.   Your family were also heavy drinkers.   You spent some time in a Department of Child Youth and Family training centre as a teenage boy to escape your home life.

Prior convictions

[12]     You have a criminal record dating back to 1986.   You have a very large number of prior convictions most relevantly for domestic violence related offences. You have in particular nine convictions for assault and have been sentenced to seven separate sentences of imprisonment for assault, ranging from three months to 18 months.

Pre-sentence report

[13]     I have received a pre-sentence report prepared  by the Probation Service. Your willingness to use alcohol and violence were assessed as contributing factors to the manslaughter.   The report writer states that you have now finally made a link between your alcohol use and violence and that the death of Mr Edwards has influenced you to make a decision to not drink in future.  You have been assessed as having medium motivation to address the causes of your offending.  You completed a Violence Prevention Programme in March 2003 but you have continued to commit violent offences. The report writer recommends further intensive intervention.

[14]     The report writer notes his or her concern that you have a history of violent offending and your current conviction illustrates an escalation in your willingness to use violence which in this instance has resulted in death.  He or she notes that you appear to be remorseful for your offending and do show some insight as to the underlying issues that may have impacted upon your cycle of violence.

[15]     The report writer assesses you as being at a medium risk of re-offending. However   without   attendance   at   drug   and   alcohol   and   anger   management programmes your risk of re-offending and harming others is considered high.  The report writer quite realistically recommends a long term of imprisonment.

Victim impact statement

[16]     I have received a victim impact statement from your aunt.  Your mother was unable to provide me with one because she died two weeks after you killed her

partner.  Your aunt believes she died from a broken heart after her partner’s violent

death.

[17]     Your aunt was a witness to the assault on your stepfather.  She tells me that seeing it all happen in front of her eyes was shocking.  She says the level of your violence was unbelievable.   She never knew you had that sort of violence in you. She always thought you were a lovely man and a good dad.  She never thought you could do such a thing or be so intimidating.  She didn’t think there is a word strong enough to describe the level of violence she saw that night.

[18]     Your aunt tells me that your stepfather’s death has had a huge effect on her life and on her health and that nothing will ever be the same for her again.   Her health has deteriorated tremendously, so much so that she can no longer work.  She has had to shift away from Dargaville to Whangarei to escape the memories.  She says that your stepfather was a lovely man – kind hearted, generous, and helpful to everyone.  He would cook for his mokopunas and every other child that would be at their place.  They all loved him and thought that the moon and stars shone from him. They followed him around like little blowflies.  Your aunt can still hear them calling him “Pa, Pa”.

[19]     Your aunt rightly concludes that your stepfather’s death was a direct result of the alcohol fuelled beating he was given at your hands.  This has shown your aunt just what alcohol can do to people.  It is shameful, she says.  She says she has seen other beatings before that have been the result of too much drinking but nothing like this beating.  She is really missing both your mother and step-father.  They were a huge part of her life and now her life has changed forever.

[20]     I have also received a victim impact statement from your sister.  She too says that the incident has had a huge impact on her and her family.  They lost their dad and then a week later their mum.  She asks, “How do you ever get over that?” and says they had no time to properly grieve for their father when their mother died.  She has a range of emotions but most of all a lot of anger.  It is always on her mind and she can never shake it.  She cannot think straight and life has changed for her in so many ways.  She stays at home most days and does not socialise.  She will go north

occasionally to see her mother’s house but no one wants to live there now because of what you did and all the memories that are still there.   She has become very depressed.   She cannot sleep well.   She has also lost her appetite.   Her mother’s funeral has not been paid for yet.  She finds that very distressing.

Purposes and principles of sentencing

[21]     I am required to consider a number of sentencing purposes and principles as set out in the Sentencing Act 2002.  The relevant purposes I have particularly taken into account are:

(a)       holding you accountable for the harm done to your family by your repeated acts of violence;

(b)promoting in you a sense of responsibility for, and acknowledgement of, that harm;

(c)       denouncing your conduct; and

(d)      deterring you and other persons from such offending.

[22]      I have had regard to the purpose of assisting you in your rehabilitation and reintegration.  I have also taken into account the principles of sentencing set out in s 8 of the Sentencing Act, particularly s 8(a) relating to the gravity of the offending and your culpability.

Sentencing approach

[23]     I now come to fixing the sentence.  The approach I intend to follow1 involves considering the circumstances and seriousness of the offending you committed and setting what is known as the starting point with the aid of any guideline decisions or comparable  cases.     I  then  need  to  consider  whether  there  are  any  relevant aggravating or mitigating features personal to you which might increase or reduce

the sentence from that starting point.

1      R v Taueki [2005] 3 NZLR 372 (CA); R v Clifford [2012] 1 NZLR 23 (CA).

Submissions

Crown submissions

[24]     The Crown points to the following aggravating features of the offending.

The offence involved actual violence by punching Mr Edwards forcefully

with fists to his head causing his head to swing from side to side.

Theoffence was committed while you were on bail.  You had assaulted your partner on 2 and 26 February 2011 and were not sentenced on those matters

until February this year when you received one year’s imprisonment.

The extent of loss, damage, or harm resulting from the offence as evidenced

by the victim impact statements completed by your aunt and your sister.

Thevictim was vulnerable by virtue of the disparity in age between him and yourself.   Mr Edwards had little chance of defending himself against your

forceful assault, given the difference in age and the fact it was so unexpected.

While  the  death  of  Mr  Edwards  was  not  intended  the  assault  was premeditated because there had been a verbal altercation leading up to the assault and your jealousy over your partner had been building up over a

number of weeks.

[25]     The Crown does not identify any mitigating features of the offending.

[26]     The Crown acknowledges that there is no tariff decision for sentencing in manslaughter as the circumstances of such offending can vary widely.  A number of decisions do, however, discuss the appropriate range for manslaughter where the death has resulted from an assault.  The Crown then refers to a number of different cases and submits they establish a range of between three and a half years imprisonment through to seven or eight years imprisonment.

[27]     I note, however, that of the seven cases attached to the Crown’s sentencing submissions only one is a Court of Appeal decision and that is R v Tai.2   It was the Court of Appeal in Tai who stated that a starting point of seven to eight years could not  have  been  challenged  in  that  case.   All  the  remaining  cases  of  sentencing decisions at first instance, some of which are of limited value since Tai.

[28]     The Crown submits the salient features of the present offending are that the assault was not just a “one punch” situation but was a series of forceful punches to the head.  The victim was vulnerable.  The blows were directed to the victim’s head. The assault was not provoked and Mr Edwards died as a result of the punches and not from falling over and hitting his head after being punched.

[29]     In its written submissions the Crown submits that having regard to those factors and the case law the appropriate starting range for the recognised aggravating factors of this offending is five to six years imprisonment.

Defence submissions

[30]     Defence counsel acknowledges that this was a case of a number of blows being administered quickly but not such as to cause family members to seek immediate medical attention.  It would appear that Mr Edwards was unaffected for a number of hours  after the assault  before the effects  of the brain  bleed  became apparent.  Counsel submits that it is unfortunate that neither Mr Edwards nor family members sought prompt medical attention at the time.

[31]     Defence counsel submits that this was not a case of a prolonged beating of a defenceless man.  There was one quick violent transaction while all involved were intoxicated.   There  was  no  kicking  to  the head.   There was  no  instant  loss  of consciousness by Mr Edwards causing him to fall on his head.

[32]     In terms of the comparative exercise required to establish a starting point counsel submits that the offending in this case bears a reasonably close resemblance

to the case of R v Orupe.3    The starting point in Orupe was three and a half years

2      R v Tai [2010] NZCA 598.

3      R v Orupe HC Wellington CRI-2009-035-1365, 3 December 2009.

imprisonment.  Counsel therefore submits that a reasonable starting point in this case is between three and a half and four years imprisonment.   Ourpe was, however, a sentencing decision at first instance before the Court of Appeal decision in Tai.  I see it as of limited assistance in this case.

[33]     Counsel concludes by submitting this is a case in which you have caused the death of your mother’s long term partner who you referred to as “Pa”.  You have lost your mother while in prison.  Prison has not been easy for you.  You have struggled with understanding that your actions, while intoxicated, caused the death of a man you cared for.   Counsel says you are deeply sorry for what you have done and concludes by submitting that, as with your relatives you also are a victim of your own offending.

[34]     I have  today also  received  a letter from  you  in  which  you  say  you  are remorseful for the situation you have put upon yourself, your family, your partner, and your children. You say you never meant to hurt Pa in a way of killing him.

Setting the starting point

[35]     I come now to fix a starting point.

[36]     There   is   no   tariff   decision   for   manslaughter.      This   is   because   the circumstances of manslaughter offending vary so greatly the courts have considered it unwise to create a tariff decision.4     I have, however, taken into account other

comparable decisions, which I will cite in a footnote to my sentencing notes,5  and

aggravating factors which I consider to increase your culpability.

[37]     In setting a starting point for manslaughter I need to take recognition of the fact that a life has been taken.  Manslaughter is one of the most serious crimes in our

criminal justice system which is why it has a maximum penalty of life imprisonment.

4      R v Wikita [1993] 2 NZLR 424 at [36].

5      R v Ruru CA371/01, 12 February 2002,  R v Tuaimalo HC Auckland CRI-2006-092-011901, 12

December 2007,   R v Uerata HC Hamilton T020253, 4 February 2003,   R v Kengike [2008] NZCA 32, R v Hetherington CA/2802, 20 June 2002,  R v Kaika HC Gisborne CRI-2006-016-

3323, 17 March 2008,  R v Townley HC Wellington CRI-2009-085-7527, 6 May 2011, and R v
Tai [2010] NZCA 598.

[38]     Furthermore  I  wish  to  make  comment  on  the  repeated  cycle  of  violent offending caused by the abuse of alcohol.  The Court of Appeal in Taueki6 affirmed that the consumption of alcohol does not lessen an offender’s culpability in any way. It is a repeated pattern that individuals are abusing alcohol for long periods and then committing violent offences.  You and your family had long drinking sessions very frequently and it seems there were often violent arguments during those drinking

sessions.  To my mind, Mr Edward’s death was almost inevitable.  You had got into alcohol fuelled punch ups a number of times before and it was just a matter of time before one of them ended tragically.

[39]     The Court of Appeal in R v Tai7  has said that ideally a trial judge will set a starting point for manslaughter both by reference to comparative cases and by using the aggravating factors of R v Taueki and then adjusting the sentence to reflect that the offending resulted in death.  Each method will act as a check upon the other.

[40]     I consider your case particularly similar to R v Tai where after a bout of heavy drinking the offender punched the victim once in the head and then kicked him once in the head when he was on the ground.  The kick did not, however, kill him.  It was either the initial blow or the fall to the ground.  On appeal the Court of Appeal said such offending should attract a starting point of seven or eight years imprisonment.8

[41]     With reference to the factors in R v Taueki three aggravating factors are present.9    These are the seriousness of the injury you inflicted upon Mr Edwards which ultimately ended in his death, your attacking of his head and the fact that you attacked him when he was vulnerable.  The attack was unprovoked and you attacked him when he was sitting down before he was able to defend himself in any way. Three aggravating factors places you in band two of R v Taueki which attract starting

points of between five and ten years imprisonment.

6      Above n 1.

7      R v Tai, above n 3, at [12].

8 At [24].

9      R v Taueki , above n 1, at [31]-[38].

[42]     Having considered both comparable case law and the factors in Taueki10  I consider a starting point of eight years imprisonment is appropriate.  In setting the starting point at eight years imprisonment I have taken into account that sentencing levels can be adjusted where there is a regional problem which requires specific deterrence.11    In  that  regard  I  am  concerned  about  the  levels  of  violence  in Northland.  Northland has the highest recorded rate in the country for homicide and related offences and the second highest recorded rate for acts intended to cause injury.  For homicides and related offences it was 0.3 per 10,000 persons in 2012. For acts intended to cause injury it was 141 per 10,000 persons in 2012, second only to Eastern Districts.

[43]     I accept that the number of homicides and related offences were quite small (only 68 nationally) and can therefore vary markedly from year to year, but acts intended to cause injury increased in 2012 in Northland from 1,916 to 2,198, by far the largest increase nationally.   The Northland community needs to take action to address the problem of violence within it.  The courts will support the community by denouncing and deterring such violence.

Adjusting the starting point

[44]     I must now adjust this starting point to take account of any aggravating and mitigating factors which are relevant to you personally.

Aggravating factors

[45]     You have a long criminal history dating back to 1986.  Most relevantly within that criminal history you have numerous convictions for domestic violence related offending.  You are 44 years old with many previous convictions for violence.  You should know better and yet you continue to perpetrate violence on those around you. I consider your previous convictions for violent offending to be an aggravating factor and  therefore  uplift  your  sentence  by  six  months,  to  eight  years  six  months

imprisonment, to reflect this.

10     Above n 1.

11     Christofides v R [2011] NZCA 126.

Mitigating factors

[46]     There are no mitigating features.  You have shown no real remorse for your actions.  You told Police that you only smacked Mr Edwards around a few times and that it can’t have been bad enough to kill him.  Any time you punch someone in the head there is a very real risk that you will gravely injure or kill that person. You, as a

44 year old man, should have known that.

[47]     You were also convicted on the manslaughter charge following a jury trial and therefore are not entitled to any discount for a guilty plea.

Minimum period of imprisonment.

[48]     Finally I do not consider that it would be appropriate for you to come up for parole after serving only one third of your sentence.    I wish to denounce your conduct and to send a message about the huge harm that alcohol fuelled violence can cause. Accordingly I impose a minimum term of imprisonment of five years.

Result

[49]     Mr Tepana, would you please stand.

[50]     On the count of manslaughter, you are sentenced to eight years six months imprisonment.  You will not be eligible for parole until you have served five years of that sentence.

[51]     Please stand down.

……………………………….

Woolford J