R v Timoti

[2025] NZHC 869

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-087-000681 [2025] NZHC 869

THE KING

v

ITI TIMOTI

Hearing:10 April 2025 (Heard at Hamilton)

Appearances:           A J Pollett for the Crown

C A Gentleman and C A Harold for the Defendant

Judgment:                10 April 2025

SENTENCING NOTES OF VAN BOHEMEN J

Counsel/Solicitors: Crown Solicitor, Tauranga C A Gentleman, Tauranga C A Harold, Tauranga

R v TIMOTI [2025] NZHC 869 [10 April 2025]

[1]                 Iti Timoti, you appear today for sentencing having been found guilty by a jury on 20 August 20241 of the manslaughter of George Maaka.2 The maximum sentence for manslaughter is life imprisonment.3

[2]                 As I have already acknowledged, I welcome the presence today of Mr Maaka’s family and thank you very much for being here. I have read the victim impact statements and I pay tribute to the courage of the writers and acknowledge the pain and loss they and other whānau have experienced.

[3]                 I also acknowledge the presence by VMR of Mr Timoti’s whānau if they have been able to join us. Mr Timoti, the rest of my remarks are addressed to you.

[4]For your information, this is the process I will follow:

(a)First, I will outline the circumstances of your offending.

(b)Secondly, I will consider your relevant personal circumstances as they have been put before the Court.

(c)Thirdly, I will explain the approach to setting the sentence and discuss the requirements of the Sentencing Act 2002 as they apply in this case and in accordance with decisions of the Court of Appeal and High Court.

(d)Finally, I will determine and impose the sentence I consider appropriate.

The offending

[5]                 Mr Timoti, you have been found guilty and convicted in relation to events that occurred at Tuhoe Avenue, Whakatāne in the late evening of 17 May 2023. Those events resulted in injuries to Mr Maaka which, in turn, led to Mr Maaka’s admission

1      R v Timoti  HC  Rotorua  CRI-2023-087-000681,  20  August  2024  (Bench  Note  No  7  of  van Bohemen J).

2      Crimes Act 1961, ss 160(2)(a) and 171.

3      Crimes Act, s 177(1).

into the Whakatāne Hospital in the early hours of 18 May 2023 and to his death a few days later.

[6]                 As both Crown and defence counsel acknowledged in their closing addresses to the jury, and as we have discussed today, the evidence  of  what happened at Tuhoe Avenue was not clear in every respect. We know Mr Maaka had been drinking before he came to the house, that he sat down in the kitchen area with some of the other persons resident at or visiting the house, and that more drink and cannabis were consumed. But the evidence as to what exactly happened between you and Mr Maaka was a little unclear. Witnesses gave differing accounts of what went on: there were differences between the various witnesses and differences between the evidence that individual witnesses gave at trial and what they said in their statements to the

police.

[7]                 In particular, there was differing accounts about how and why the altercation between you and Mr Maaka began, whether Mr Maaka hit or threatened to hit you with his tokotoko before you took it off him and threw it across the room, whether another person was involved in the fight and hit or kicked Mr Maaka in the back of his legs, and whether you continued to hit Mr Maaka after he had fallen to the floor.

[8]                 However, what was not in doubt is that you had hit Mr Maaka in the head with your fists and that Mr Maaka died as a result of injuries to his head. You yourself admitted to hitting him at least twice in the head with your fists, your fists were bruised and swollen when the police took you into custody and the medical evidence as to the cause of death was plain.

[9]                 Mr Maaka died as a result of a subdural haematoma, a blood clot inside his skull, caused by bleeding from veins ruptured inside his skull after he had been hit in the head. The medical evidence established that Mr Maaka had been hit in the head at least four times, possibly five, although it was not possible to isolate which blow caused the fatal injury. The medical evidence also established that Mr Maaka’s condition may have contributed to the formation of the haematoma. Mr Maaka’s brain had started to shrink, what is called cerebral atrophy. The pathologist said that slightly shrunken brains make people prone to having subdural hematomas.

[10]             Neither you nor anyone else in the house knew at the time the seriousness of the injuries that Mr Maaka had suffered. Nor do I consider you had an intention to cause Mr Maaka serious injury.

[11]             After the hitting had ended, Mr Maaka took himself out of the house, up the driveway where a neighbour heard him “cuckooing” to himself, along Tuhoe Avenue and then onto the pathway leading to Garaway Street. He stopped along the pathway, where he was seen by a young woman biking towards her  cousin’s  house  on  Tuhoe Avenue. Mr Maaka said, “Kia ora” and “Be safe” to her and the young woman continued on her way, as did Mr Maaka. He continued along the pathway and onto Garaway Street, heading towards the Whakatāne Hospital.

[12]             However, Mr Maaka collapsed in the carpark outside the hospital entrance. Ambulance and security staff alerted a doctor working in the emergency department. The doctor found Mr Maaka on his back making groaning noises and spontaneously opening his eyes. However, the doctor recorded that Mr Maaka did not really have motor responses.

[13]             Mr Maaka was admitted to hospital. Doctors quickly assessed that he had a brain bleed and was unlikely to survive his injuries, as sadly proved to be the case.

[14]             In finding you guilty the jury must have concluded that you had not acted in self-defence or, if you had, that the force you used was not reasonable in the circumstances. They also rejected any suggestion or invitation to believe that someone else might have inflicted the injuries or that Mr Maaka’s death might have been caused by his fall outside the hospital or elsewhere. In my view, there could be no reasonable doubt on any of these points.

[15]             You exercised your right not to give evidence at the trial. You told the Corrections pre-sentence report writer that you regret that decision and wish you had given your version of events. I do not think you need to have any such regret. The evidence on the essential facts was unequivocal — you hit Mr Maaka in the head with your fists and so caused his death.

[16]             As you heard me say to counsel, I do not accept that it was established at trial that Mr Maaka was especially vulnerable or that you continued to hit him when he was on the ground. However, as I also said, I do not accept that it was established at trial that Mr Maaka provoked the confrontation with you or that the confrontation began with or involved Mr Maaka hitting you with his tokotoko, or that this was a case of excessive self-defence.

[17]             To the contrary, the only evidence of Mr Maaka hitting you with his tokotoko was what you told the police on one occasion after your arrest and what one witness said, confusingly, when being cross-examined. However, that witness then retracted that evidence and confirmed directly to me that he had not seen Mr Maaka hit you with his tokotoko. So, lest there be any doubt, I am not sentencing you on the basis that the altercation began after Mr Maaka hit you with his tokotoko or that you were acting in self-defence.

[18]             Rather, the basis on which I am sentencing you is that you hit Mr Maaka in the head with your fists, which caused the build-up of blood inside his skull that killed him. I am also taking into consideration the likelihood that Mr Maaka was more prone than others to this fatal result, which you could not know, and the likelihood that you did not intend to cause Mr Maaka serious injury. However, I am putting aside considerations of other vulnerability, of provocation and of excessive self-defence.

Personal circumstances

[19]             You are 66 years of age and of Ngāi Tūhoe descent. You were aged 64 at the time of the offending. You have over 100 previous convictions. The rest of what follows is based largely on what you told the Corrections report writer, what you told Ms Nath, a psychologist who spoke to you by AVL for three hours in March this year, and what you have said in the affidavit your counsel filed earlier this week. In other words, this is largely your account of your upbringing and circumstances.

[20]             You are the oldest of ten siblings. You were born in Whakatāne and spent your childhood living on farms with your parents and grandparents. You were raised speaking te reo as your first language.

[21]             You say your childhood was characterised by exposure to domestic violence and parental substance abuse. You took an active role in raising your siblings and tried to protect them from the violence in your family. You say you were the subject of significant violence and bullying growing up.

[22]             You joined a local gang when you were young in an attempt to find ways to defend yourself. As you got into more trouble, you were sent to Hamilton Boys’ Home at the age of 12 where you witnessed and experienced serious emotional and other physical abuse. Your say your connection to your cultural heritage was severed when you were disciplined for speaking te reo and that you were robbed of your right to be Māori.

[23]             Following release from state care, you joined Black Power in what you say was an effort to seek protection and belonging. You say your involvement in gangs resulted from being persecuted by the system. You say violence and substance abuse were your ways of coping with your traumatic experiences. You have since reported that you have reduced your involvement with the gang and were intending to hand over your patch.

[24]             You have been with your present partner for 21 years. You have together an 11-year-old daughter.

[25]             Ms Nath assesses that you have complex post-traumatic stress disorder and that your repeated experiences of abuse likely contributed to your overall interpersonal and emotional dysregulation. Ms Nath also notes that you have experienced several head injuries, which have manifested in physical symptoms such as sensory problems, headaches and mood swings.

[26]             You have been in and out of state institutions, including prison, for much of your life. But you report that you received little by way of rehabilitative programmes while in prison.

[27]             The Corrections report writer considers you to be at a high risk of reoffending and a high risk of causing harm to others. Ms Nath considers that if you were to

violently offend again, it would likely be against someone you know in response to feeling threatened or attacked. Ms Nath says you would benefit from a tikanga-based, trauma-informed violence programme.

Purposes and Principles of Sentencing

[28]             In sentencing you I am required to take into account the purposes and principles of sentencing as outlined in the Sentencing Act. The relevant purposes include those of accountability, denunciation, responsibility and deterrence.4 I also must hold you accountable for the harm caused by your offending to Mr Maaka and the community.5

[29]             I must also take into account the gravity of the offending, including both your culpability and the seriousness of your offending,6 and the effect of the offending on Mr Maaka’s family.7 They have suffered as a result of his death. One life was lost but many more were damaged.

[30]             It is important that I denounce your behaviour. That Mr Maaka may have been noisy and intoxicated and annoying in no way justifies your response. You knew Mr Maaka. Even if he was not allowed into a local bar because of his tokotoko, the evidence established that he was a gentle and inoffensive man; a threat to no one. You would have known that. However, as I have already said, you were not to know that Mr Maaka may have been more vulnerable than others to blows to the head and I accept that you did not intend to cause him serious injury.

[31]             The sentence I impose should also be consistent with sentences imposed in similar factual circumstances.8 As you have heard, Crown counsel and your counsel have provided the Court with a number of authorities that have each been considered. I will discuss them shortly.

4      Sentencing Act 2002, ss 7(1)(a), (b) (e) and (f).

5      Sentencing Act, s 7(1)(a).

6      Sentencing Act, ss 8(a) and (b).

7      Sentencing Act, s 8(f).

8      Sentencing Act 2002, s 8(e).

[32]             I must also impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in section 10A of the Sentencing Act.9

Submissions

[33]             As, you have heard, the Crown submits that I should set a starting point of eight years’ imprisonment and that there are no personal mitigating factors that would warrant a discount. The Crown also submits that I should impose an uplift of nine to

12 months’ imprisonment to reflect your lengthy history of violent offending, extending over four decades. That would result in an end sentence of up to nine years’ imprisonment.

[34]             Your counsel, Ms Gentleman submits that I should adopt a starting point of four and a half years’ imprisonment, discount that by 25 per cent to reflect what are said to be unique background factors that affect the extent of your agency and reduced culpability and because of your remorse and rehabilitative prospects. Your counsel also submits that your previous convictions are historical and irrelevant, so no uplift is warranted. That would result in an end sentence of three years and four months’ imprisonment.

[35]             In other words, there is a gap of over five years between the respective advocated sentences. While it is not uncommon for there to be a gap in the sentences advocated by Crown and defence counsel, a gap of that magnitude is unusual. I consider it is the result of both the Crown and defence counsel presuming factual positions that are not supported by the evidence.

Starting point

[36]             There is no Court of Appeal decision that sets a standard sentence or tariff for manslaughter. That is because manslaughter can entail very wide-ranging circumstances with varying degrees of culpability. However, it is well-established that, in setting a starting point for manslaughter, the Court may draw on R v Taueki,

9      Sentencing Act 2002, s 8(g)

the guideline judgment for sentencing for offences involving serious grievous bodily harm, with an appropriate adjustment where there has been loss of life.10 The Court may also have regard to sentences for manslaughter in similar cases. It is recommended that both approaches be used, each as a check on the other. As your counsel notes, some caution is warranted when applying the Taueki approach.

[37]             In Taueki, the starting point is arrived at after identifying the number and nature of aggravating factors present in the offending and, on that basis, identifying in which sentencing band the offending sits, and where in that band the offending sits.

Aggravating Factors of the Offending

[38]             I consider there are three aggravating factors present in your offending. They are: violence; the attack to the head; and the seriousness of the injury. For the reasons I have given, I do not accept that Mr Maaka was particularly vulnerable.

[39]             The degree of violence involved was substantial, but I don’t accept that there was extreme or that if the evidence established that the assault continued for over an hour. While the argument may have continued for some time, the actual assault may have been over quite quickly. Whether or not it was unprovoked is not entirely clear on the evidence. However, it is apparent that Mr Maaka did not try to defend himself after you had thrown his tokotoko across the room and that he was hit four or five times. It follows that the later blows at least were gratuitous.

[40]             The attack to the head is plain. At least four and possibly five blows to the head, with your fists but not involving kicking or a weapon. So too is the seriousness of the injury — death. But death was not expected by you, Mr Maaka or those who witnessed what happened. It may have been partly the consequence of Mr Maaka’s unknown physical condition.

[41]             Three aggravating factors bring the offending within the second sentencing band of Taueki, for which a starting point of between five and 10 years is recommended. However, because it was not established that the violence was

10     R v Taueki [2005] 2 NZLR 372 (CA); R v Tai [2010] NZCA 598.

extreme, because the attack was only with fists and because Mr Maaka’s unknown physical condition may have been a contributing factor, I consider the starting point should be towards the lower end of that range.

Comparable cases

[42]             I do not consider the cases referred to by the Crown to be closely comparable to your circumstances.

[43]             R v Felise, in which I was the sentencing judge, there was a much greater level violence that was gratuitous and unprovoked. The victim was also much more vulnerable. He was strapped into his seat in a car and he was a youth who was attacked by a physically much bigger man.11 While the attack in R v Tepana is more similar to your attack on Mr Maaka, it was clearly established that the attack was unprovoked on a person who was seated and unable to defend themselves.12 The Judge also set the starting point by reference to levels of violence in Northland.13 That is not a consideration here. In R v Poata, the violence and the injuries, not including death, were much more substantial than in your case.14

[44]             For these reasons, I do not accept that a starting point of seven or eight years is appropriate.

[45]             On the other hand, I do not consider the cases referred to by your counsel assist either. What happened in R v Hakopa and in R v Cooper is not comparable to what happened between you and Mr Maaka.15 The attacks there were in response to clear provocations. And, in Cooper, it was accepted that the defendant acted in self-defence. So, I do not accept that a starting point of four and half years is appropriate either.

[46]             The case I have found to be broadly comparable to what happened between you and Mr Maaka is Blackler v R, in which the Court of Appeal held that a six year

11     R v Felise [2020] NZCA 60

12     R v Tepana [2013] NZHC 1592.

13 At [42].

14     R v Poata [2014] NZHC 1028.

15     R v Hakopa [2020] NZHC 2763; R v Cooper [[2014] NZCA 275.

starting point was within range in the context of that case.16 In Blackler, a man died after a fight erupted between friends and flatmates who had been drinking. The defendant was the aggressor but was responding to disparaging comments by the victim about the defendant’s terminally ill sister. The violence was probably more extreme than in your case; the judgment records that the injuries were such that the victim’s face was said to be almost unrecognisable.17 However, it also records that injuries were not in themselves fatal and would not have resulted in the death of a healthy person. The victim had a pre-existing heart condition and the attack in combination with his ill-health caused his death.18 A distinguishing factor was that victim was 19 years older than the defendant, and smaller.19

[47]             Overall, therefore, the attack and injuries in Blackler were probably more serious than what you inflicted on Mr Maaka and the victim was more vulnerable. But the victim’s heart condition clearly played a much greater part in the death than was established with respect to Mr Maaka’s brain condition. On the other hand, while that heart condition was not known to the defendant, it was accepted that the defendant must have known the victim had health issues.20 It was not established that you had comparable knowledge about Mr Maaka’s health condition.

[48]             Nonetheless, despite these differences, I consider a starting point of six years’ imprisonment is appropriate given that the offending is clearly within the second band of Taueki and a man has died. I am reinforced in that conclusion by the Court of Appeal’s observation in Blackler that one-punch manslaughter cases typically attract starting points of five to six years’ imprisonment.21

[49]Accordingly, I adopt a starting point of six years’ imprisonment.

16     Blackler v R [2019] NZCA 232 at

17 At [5].

18 At [6].

19 At [12].

20 At [25].

21 At [27].

Adjustment to starting point for personal factors

[50]             The next question is whether that starting point should be adjusted upwards to take into account your previous offending or downwards to take account of mitigating factors such as your upbringing and previous life experiences and your professed remorse and potential for rehabilitation.

Previous offending

[51]             In considering whether to apply an uplift for previous convictions, I must determine the extent of their relevance with regard to their type, frequency and seriousness. An uplift may not be warranted unless the prior offending shows a tendency to commit the offence which brought you here today.22

[52]             Your past offending is both extensive and serious. As the Crown notes, it includes convictions from threatening to kill, male assaults female, assault with intent to injure, assaulting the police, resisting the police and a plethora of other offending. However, you have not committed any offence involving serious violence since July 2013. Your most recent offending — in March 2023 — bears no relationship to the offending for which you are being sentenced.

[53]             In these circumstances, I am satisfied that no uplift is warranted to take account of your previous offending. In so concluding, I have also taken into consideration the likelihood that your age upon release from prison will make you less likely to reoffend than your previous record might suggest. In that respect, I do not agree with the Corrections report writer that you are established as a high risk of reoffending.

Background factors

[54]             I accept at face value your account of your upbringing and the tribulations you endured, even if they are mostly self-reported. I do so because, regrettably, such experiences are not unique. I do not accept, however that the abuse you suffered was as serious as Ms Gentleman invites me to accept or that it has a causative relationship with your offending or that it affected your agency or reduced your culpability.

22     Jones v R [2021] NZCA 402 at [33]; Beckham v R [2012] NZCA 290 at [85].

[55]             Ms Nath says that your assault on Mr Maaka was likely enabled by your tendency to react to potential threat and to defend yourself rather than an intention to seriously harm Mr Maaka. However, that assessment was premised on her accepting your account of what happened – that you were reacting to an attack by Mr Maaka with his tokotoko.

[56]             As I have made clear, I do not accept that this was established. So, the causal connection between your background and your asserted lack of agency is not established either. In addition, over 50 years have passed since you left State care. As the Supreme Court said in Berkland v R, there is a point at which background factors can no longer assist in explaining the offending.23

[57]             Accordingly, I do not accept that there should be any discount based on your background.

Remorse and rehabilitative prospects

[58]             I accept that you regret what happened and that you regret that Mr Maaka died and that you regret that you have been found responsible for his death. But, I am not satisfied that you accept that you are responsible for his death or are genuinely remorseful for that. That is underlined by the fact you continue to assert that you were responding to an attack by Mr Maaka — an account that was not supported by any of those who gave evidence openly about what happened. Nor is it consistent with what others reported of what you said to them after Mr Maaka was hospitalised.

[59]             Accordingly, I see no basis for making a discount for remorse. Given your previous record, I also see no basis for making a separate discount for your rehabilitative prospects, even if I accept that you have not previously had genuine opportunities for rehabilitation and you have not previously disclosed these factors in your background, which have more recently come to light. However, as I have noted, your age on release is more likely to be relevant to your risk of reoffending rather than any rehabilitation that you engage in.

23     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509, [109]–[110].

[60]             My overall conclusion, therefore, is that there should be no uplift to the starting point of six years’ imprisonment and no discount either.

Minimum period of imprisonment

[61]             The Crown submits that a minimum period of imprisonment of 50 per cent is appropriate to deter and denounce this type of violence and to protect the community.

[62]             I do not accept that this is required in your circumstances. For a man of your age, I consider that it is better to allow the Parole Board to decide when it is appropriate and safe to release you back into the community

Imposition of sentence

[63]Mr Timoti, please stand.

[64]             For the manslaughter of George Maaka, I sentence you to a term of imprisonment of six years.

[65]You may stand down, Mr Timoti.

G J van Bohemen J