R v Townley HC Wellington CRI 2009-085-7527

[2011] NZHC 339

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2009-085-7527

THE QUEEN

v

JARRAD CLARENCE TOWNLEY

Hearing:         6 May 2011

Counsel:         M Snape for Crown

V C Nisbet for Accused

Judgment:      6 May 2011

SENTENCE OF RONALD YOUNG J

[1]      Mr Townley, you appear for sentence having pleaded guilty to manslaughter. Originally  you  had  been  charged  with  murder;  however,  on  8 November  you indicated you would be prepared to plead guilty to manslaughter.   Eventually the Crown advised they would accept a plea and that plea was entered.

[2]      The facts were that on 3 October 2009 you and your co-accused, Mr Pokoati, arrived at  Mr Sipili’s  house.    Mr Sipili  was  at that  time looking  after  his  three younger children.   You arrived with some alcohol apparently wanting to stay and

watch a boxing match on television.

R V JARRAD CLARENCE TOWNLEY HC WN CRI 2009-085-7527 6 May 2011

[3]      The victim, Mr Sipili went off to get more alcohol for the three of you. When he returned all three of you began drinking and drank through until about midnight that evening.  During the course of the evening, initially a conversation and then an argument began between your co-accused, Mr Pokoati and Mr Sipili.   Mr Pokoati and  Mr Sipili  were  connected  by marriage.    The  argument  was  about  Mr Sipili hitting his wife.  Mr Sipili’s wife is Mr Pokoati’s aunt.

[4]      Eventually  the  argument  developed  to  the  stage  where  violence  began. Mr Pokoati stood up and began punching Mr Sipili with a closed fist.  Mr Sipili tried to get up but Mr Pokoati continued to punch him numerous times.  You then got up from  your  seat  and  began  punching  Mr Sipili  also  in  the  head  and  the  body. Mr Sipili was kneeling on the ground when you kicked him in the head.  He fell to the ground and you and Mr Pokoati continued to punch him as he laid there.  Later, blood splatter in the vicinity was found together with vomit containing blood.

[5]      Once  the  assault  was  finished  it  would  have  been  evident  to  you  that Mr Sipili was seriously injured.  He was certainly unconscious.  You and Mr Pokoati then simply went to sleep.   The following morning you woke up and would have seen the terrible injuries that Mr Sipili had suffered.  He was still lying where he had been the night before with shallow breathing.  Mr Pokoati rang his aunt and then the victim’s wife shortly afterwards.  But you made no effort to get medical treatment that was obviously needed.

[6]      I accept that Mr Pokoati began the assault.  However, you soon joined in.  I do not consider that there is a sensible basis to distinguish between you and him on the facts.  While he may have thrown more punches initially it was shortly after that you joined the assault and you kicked Mr Sipili in the head.   Further, Mr Pokoati claims for provocation relating to his aunt’s assault is not available to you.  In any event,  finally,  Mr Sipili’s  son  came  downstairs,  when  he  saw  the  injuries  and immediately rang for an ambulance.

[7]      Mr Sipili was taken by ambulance to the hospital.  He had suffered extensive bruising and swelling to his head, an acute subdural bruise on the left side of his brain and severe brain swelling.

[8]      Over a period of days, then months, Mr Sipili was initially treated in hospital and then with other care.  But it became clear he was in a vegetative state.  He was unconscious; he needed assistance to breathe and had to be fed by a tube.  He could not move.  Eventually in May 2010 he died.

[9]      The pre-sentence report describes your previous convictions.  You do have a number of convictions going back over the last years including a robbery and an assault on a woman.   But I accept none have resulted in substantial sentences of imprisonment.

[10]     The pre-sentence report records that you had a troubled early childhood with problems of alcohol as young as eleven years of age.

[11]     As far as the offending is concerned you told the probation officers you were grossly intoxicated that evening but you did not attempt to justify or minimise your offending or shift blame onto anyone else.  You do lack insight but that seems to be primarily because you cannot recall the detail of the incident.   But you illustrated that you do understand the severe effects that your actions have had on the Sipili family.

[12]     I accept that you are remorseful accepting your actions caused Mr Sipili’s death and not wanting to excuse your conduct.   Your alcohol consumption, your inability to control your anger and your impulsive violence all contributed to this offending. You now accept the consequences of your actions and accept a significant sentence of imprisonment will inevitably follow.   Your most recent letter to me underlines your remorse previously expressed.

Crown submissions

[13]     The Crown say a starting point of at least nine years’ imprisonment at least is appropriate before I take into account personal matters relating to you.  They say I should not distinguish between you and your co-offender.  They emphasise that two of  you  attacked  the victim;  you  targeted the victim’s  head  particularly after he became  incapacitated.     They  stress  the  extreme  violence  here  and  of  course

Mr Sipili’s death.  They also stress that you failed to obtain medical treatment for what must have been obviously serious injuries and that the offending occurred in Mr Sipili’s own home.

[14]     They suggest that a modest uplift from the starting point is appropriate for your previous convictions.   They urge the imposition of a minimum period of imprisonment.

Defence submissions

[15]     I take into account the written and oral submissions made by your lawyer.  He says that you accept you did once kick the victim and punched him a number of times.   Your lawyer stresses the deep regret you have for your involvement.   He points out that the pre-sentence report indicates clear and genuine remorse on your behalf.   He mentions also the early guilty plea, as well as the remorse as factors indicating a lesser finite sentence than Mr Pokoati.

[16]     He says there should be no uplift as a result of your previous offending which are not sufficiently serious.

Victim impact

[17]     Again I want to acknowledge Mr Sipili’s family.  I have read, as you know, the victim impact reports and I know the terrible effect the loss of such a loved man has had on all of you.

[18]     The  impact   reports   stress   and   asked  the  question   “how  could   you,

Mr Townley, so casually take the life of another man?”

[19]     You have heard their victim impact reports read today and again I wish to acknowledge the courage of those who stood and read those reports.   I want to particularly mention that your actions have caused six children to lose a father, a wife to lose a husband, a mother to lose a son and his siblings to have lost a cherished and loved man.

Discussion

[20]     This was a particularly brutal assault fuelled no doubt by alcohol.  You and the co-accused caused considerable further physical damage to Mr Sipili after it was clear he could not defend himself.   You kicked the victim in the head as well as punching him in the head.  This would all have contributed to the brain trauma and ultimately his death.

[21]     The claimed provocative act was not related to you and cannot mitigate your actions in this case.

[22]     The factors that influence me as to the appropriate start sentence are the fact that two of you were involved in the beating; the events occurred in the victim’s own home; the two of you rendered him unable to defend himself and you kicked and punched him in the head; this was a prolonged and vicious beating; you gave no help to Mr Sipili, indeed you ignored his condition.

[23]     Your obvious intoxication does not assist you at sentencing.  I accept, as the Crown urged me, that the starting point here is one of nine years’ imprisonment.  I do not distinguish, as I have said, for that start point between your involvement and Mr Pokoati’s.

[24]     You do have some previous convictions some with an element of violence. But I do not consider they are sufficiently serious or of such a number to justify an uplift from that start point.

[25]     I acknowledge  your  plea of  guilty.   You  offered  this  plea after the  first callover  in  the  High  Court  and  when  that  was  accepted  by  the  Crown  you immediately pleaded guilty.  However, I consider a conviction for manslaughter in the circumstances was virtually inevitable.   The evidence was overwhelming and there was a form of confession by you.

[26]     As I have observed I accept you are genuinely remorseful now.   You will carry on your conscience for the rest of your life the fact that you have played a part

in the death of this man.  These two factors, your guilty plea and remorse, in my view, justify a reduction of twenty five per cent from your start sentence of nine years’ imprisonment. That reduces the final sentence, therefore, to six years and nine months’ imprisonment.

[27]    I am also satisfied that this is a proper case for a minimum period of imprisonment for the reasons I have identified given the facts of the offending.  In this sentencing deterrence and denunciation are very important.

[28]     Further, as I have identified, you do have a past record of some violent offending and of course this was extreme violent offending.  I also consider I can, however, distinguish the level of the minimum period between the two of you.

[29]     I impose a minimum period of imprisonment of three years and two months’

imprisonment.

[30]     You are sentenced to six years nine months’ imprisonment with a minimum

period that I have identified.

Ronald Young J

Solicitors:

M Snape, Luke Cunningham & Clere, PO Box 10357, Wellington, email:  [email protected]
V C Nisbet, Principal, Wellington, email:  [email protected]