R v Turi

[2013] NZHC 2411

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-032-002988 [2013] NZHC 2411

THE QUEEN

v

HARLEM RAWIRI TURI

Hearing:                   13 September 2013

Counsel:                   A J Ewing for Crown

C W J Stevenson for Accused

Sentence:                 13 September 2013

SENTENCING NOTES OF DOBSON J

[1]      Mr Turi, I now have to sentence you on your conviction for the manslaughter of Mr Michael Mulholland.

[2]      First, I will review the facts relevant to the offending because that has a bearing on how seriously your offending is to be treated in terms of the length of the prison sentence you must serve.  The view I take of the facts has to be consistent with the jury’s verdict, and is otherwise to reflect the view that I take of all the evidence as I observed it at the trial.  On some points, Mr Stevenson has argued that I take a view of the facts more favourable to you than Ms Ewing urged for the Crown, and I have had regard to that in reviewing all the relevant evidence.

[3]      For much of the day on 20 September 2012, you had been drinking with associates in the vicinity of Farmer Crescent in Lower Hutt.  At about 9.50 pm that evening, you accompanied Desmond Leaf to the house occupied by Mr Michael

Mulholland. You and Mr Leaf were both wearing Mongrel Mob regalia.

R v TURI [2013] NZHC 2411 [13 September 2013]

[4]      Mr Mulholland was known in the area as a drug dealer, and you went there intending  to  obtain  methamphetamine,  although  for  your  own  part  you  had  no money.

[5]      Mr Leaf knew Mr Mulholland, but you had not previously met him.   You both entered his house, and either or both of you asked that he supply you with methamphetamine.    When  Mr Mulholland  told  you  that  he  did  not  have  any methamphetamine, you challenged him, apparently not believing him.  On Mr Leaf ’s version  of  events,  which,  consistently  with  the  jury’s  verdicts,  I  accept,  he  hit Mr Mulholland first, probably only once, giving him a jab that was most likely a signal challenging Mr Mulholland to tell the truth about whether he had drugs or not, rather than being intended to inflict any serious harm.

[6]      You then followed suit, inflicting a number of blows to Mr Mulholland’s head and neck.  Your assault caused significant injuries including fractures to nasal bones and to the orbital socket around one of Mr Mulholland’s eyes, together with abrasions  elsewhere  on  his  face  and  a  break  to  thyroid  cartilage  in  his  neck. Mr Mulholland bled quite profusely, with blood in both the kitchen and bathroom of his house.

[7]      Mr Stevenson urged that the evidence did not establish that you had landed any more than, say, two punches, whereas the Crown characterise it as a more sustained  beating.    Mr Stevenson  has  referred  to  witnesses  acknowledging  the possibility that some of the injuries identified in the post-mortem were caused after your assault when Mr Mulholland collapsed on the driveway of a property down the road.  He has referred to the evidence of Mr Taurima, who observed Mr Mulholland when he arrived at that other address, and before he collapsed.  The effect of that evidence was that Mr Mulholland appeared not to have serious injuries, although there was bruising consistent with a fresh black eye.   I do not find Mr Taurima’s evidence reliable on this aspect, and cannot rely on it to find that Mr Mulholland’s face did not have substantial damage when he left his own house.

[8]      I note that some days after the assault, you showed a neighbour of your

partner’s back in Paraparaumu your knuckles, which were apparently not grazed at

that stage, suggesting that you could not have assaulted anyone repeatedly or hit them hard, given the expectation that a thorough assault would have left you with grazed  knuckles.    I do  not  find  this  point  persuasive,  but  I cannot  dismiss  the prospect  that  some  of  the  injuries  to  Mr Mulholland’s  face  were  caused  or contributed to by his later collapse.   However, in the end, I am satisfied that you were responsible for a reasonably substantial beating to the face of Mr Mulholland.

[9]      Your   assault   on   Mr Mulholland   did   not   force   him   to   produce   any methamphetamine and you left the house shortly after inflicting the beating.   The injuries you inflicted were not, in themselves, fatal.

[10]     On your way down Mr Mulholland’s driveway, you confronted Ms Moss, snatching $100 out of her hand, and proceeded on to another address on Farmer Crescent.

[11]     For her part, Ms Moss went into Mr Mulholland’s house and observed him with a badly beaten face and in an apparently distressed state.   Mr Leaf stayed behind to help clean Mr Mulholland up and shortly after that Mr Mulholland was able to drive himself a short distance down Farmer Crescent to another address. There he got out of his car and began a conversation with Mr Taurima, but shortly after  that  collapsed  and  died.    It  transpired  that  Mr Mulholland  had  a  severely weakened heart and I am satisfied that the shock of your assault on him was a substantial and contributing cause of the heart attack from which he died.

[12]     I have read the significant number of victim impact statements from members of Mr Mulholland’s family and friends.   They make very sad  reading,  giving  a different impression of him as a caring, generous person concerned for his family, who will be greatly missed.  They provide an insight into a character somewhat at odds with the small-time drug dealer living amongst Mongrel Mob members that was suggested by much of the evidence at the trial.  If you have not read those victim impact statements, Mr Turi, I urge you to do so once the dust has settled on this sentencing as part of reflecting on the consequences of your conduct.  You appear, at least  for  the  pre-sentence  report,   to  make  light  of   your  responsibility  for Mr Mulholland’s death on the basis that your assault was only a roughing up that a

normal  man  would  have  survived,  and  that  you  had  no  way  of  knowing  that Mr Mulholland had a weak heart that would transform the assault into one that killed him.

[13]     The law does not see it that way: we all have to be responsible for the consequences of our actions and when you intentionally assault someone and they die as a result, then you are up for manslaughter, however unexpected that tragic outcome is.

[14]     In setting a starting point for the appropriate sentence, two approaches can be used, with each providing a cross-check on the appropriateness of the starting point suggested by the other.  First, I can assess relatively how serious the circumstances of this offending were relative to other manslaughter sentencings, in order to fit this conviction into the scale of relative seriousness and the relative length of prison sentences imposed.   I have done that and compared the relevant circumstances of your offending with the circumstances of nine other manslaughter sentencings.   I will annex to my sentencing notes a summary of those cases and the points of comparison that I have used in ranking your offending against those others.

[15]     On this approach, the Crown urged a starting point of between nine and

10 years.  On your behalf, Mr Stevenson has argued for a starting point of between four and four and a half years.

[16]     The Crown focused particularly on two comparative cases.  The first, R v Tai, is a Court of Appeal judgment where the Solicitor-General had appealed from a sentence that was found by the Court of Appeal to be manifestly inadequate.1   In that case, the defendant and the victim exchanged words outside a bar after it closed. The defendant punched the victim once in the head, causing him to fall to the ground where he lay unconscious.  The defendant then bent over him and kicked him in the

head, with the impact of the kick being audible to witnesses at the scene.  The victim died soon after from a brain haemorrhage.   The Court of Appeal suggested that a starting point for that offending was between seven and eight years’ imprisonment. The Crown has urged that your offending is more serious than that.

[17]     The other case particularly relied on by the Crown is R v Waipuka.2    The defendant in that case committed an early morning assault on a journalist making his way home from work.   The victim was punched and fell to the ground and the defendant then forcefully stomped or kicked the victim in the head and his upper arms before stealing his wallet.  Sadly, the victim had unusually brittle bones and in those circumstances the assault was sufficient to kill him.   The sentencing Judge adopted a starting point of 15 years.

[18]     The Crown argues in the present case that the seriousness of your offending is somewhat closer to that in Waipuka than the offending in Tai.

[19]     Now the Judge in Waipuka treated it as a manslaughter that was near to murder, but that is not the case here.   I consider your offending is materially less serious than Waipuka.  Mr Mulholland was not knocked unconscious and there was no  kicking  or  stomping  whilst  he  was  on  the  ground,  which  is  significant  in measuring the relative seriousness. Any stomping of the victim’s head while he is on the ground generally introduces the risk of injury sufficiently serious to include the risk of killing the victim.   The level of violence in your case was materially less. Stomping also featured in Tai.   In Tai, there was a closer connection between the beating and the causes of death.  I am not persuaded that this case is materially more serious than Tai.

[20]     Mr Stevenson invites analogy, although he does not say it is the same in your case, with offenders in single punch manslaughter cases, and he emphasises that the similarity is that you had no intention to cause serious harm.   He submits that if Mr Mulholland had not died, you would be facing, at the most, a charge of injuring with intent to injure.  Mr Stevenson submits that such cases generally attract starting points  of  between  three  and  a  half  and  four  years’ imprisonment  and,  as  your culpability is not much beyond that, her arrives at the starting point of four to four and a half years.

[21]     Now the “single punch” manslaughter cases that Mr Stevenson has referred me to involve the victim being struck with some force, sufficient to cause them to

fall backwards generally and hit their head on a hard surface, usually the ground. The force of the impact on the victim’s head causes their death, hence the manslaughter charges.  I have included some of those cases in the appendix of the comparators.  However, I am satisfied that the injuries suffered by Mr Mulholland, even taking into account his falls following the cardiac arrest, are inconsistent with there only being one or two punches.  I am not prepared to treat this as akin to a one punch case, as I am satisfied the violence went beyond that, and there are a number of other aggravating features.

[22]     It is relevant that you were the second attacker to lay into Mr Mulholland, and you focused on his head, which is the most vulnerable part of the body.  You were attacking him in his own home where New Zealanders are generally entitled to treat themselves as safe, and you and Mr Leaf were both wearing gang patches, which would increase the level of fear and intimidation in this violent standing-over. In addition, the attack was to pressure Mr Mulholland into supplying you with drugs when, for your part, you had no money to pay for them.

[23]     On the basis of all the comparisons, I would adopt a starting point of seven

years’ imprisonment.

[24]     The second way of setting a starting point is to use the bands provided by the Court of Appeal in its guideline judgment for sentences for grievous bodily harm in R v Taueki,3 making allowance for the greater seriousness of the consequences in that your victim did not just suffer grievous bodily harm, but died.

[25]     Now, Mr Stevenson has submitted that this approach is reserved for the most serious violent offending, and should not be applied in this case, which is not at a serious enough level.   He points to the Crown proposing an alternative charge of injuring with intent to injure under s 189(2) of the Crimes Act 1961, which would have carried a maximum sentence of five years’ imprisonment.  I do not accept that that assessment of the level of violence should dictate whether I use Taueki as a cross-check, and I have to be guided by my own findings as to the level of violence that was involved.

[26]     I acknowledge that in Tai, the Court of Appeal said that the Taueki bands would not be relevant when the violence was not serious, and the assault involved only moderate or minor personal culpability on an offender’s part.4   However, I am satisfied that you used sufficiently serious violence with an intention of causing serious harm to Mr Mulholland, and so the threshold for applying Taueki as a cross- check is met.

[27]     Turning then to the sentencing bands outlined in Taueki, the Court of Appeal set the following:

(a)      first, band one for violence at the lower end, with starting points of between three and six years’ imprisonment;

(b)band two for offending which features two or three of the aggravating factors identified by the Court, attracting starting points between five and 10 years, and

(c)      band  three  for  the  most  serious  offending,  with  three  or  more aggravating   features,   having   starting   points   between   nine   and

14 years.5

[28]     Some of the aggravating features from a longer list in Taueki, which the

Crown says were present here, were:

the    substantial     injuries,     irrespective     of    their     causative     link     to

Mr Mulholland’s death

and that the attack:

was to the most vulnerable part of his body;

was to facilitate a crime, so the Crown say;

4      R v Tai, above n 1, at [11].

5      See R v Taueki, above n 3, at [34].

was in the victim’s home;

had gang involvement; and involved two attackers.

[29]     Of those, I do not place great weight on the attack being to facilitate a crime. If the attack had pressured Mr Mulholland into acknowledging he did in fact have drugs, then you may well have forced him to give them to you without any commitment to pay later, but I am not satisfied to the requisite standard that that is so.  As to the violence occurring in his home, this cannot have the same connotation of home invasion as is present in true “home invasions”.  Mr Mulholland was a drug dealer, allowing apparently diverse visitors to enter his house for the purpose of buying drugs, and those visitors obviously included gang members. Accordingly, the violation of his home does not have the same weight in this case as in the case of a true home invasion in the narrow sense.

[30]     In terms of Taueki ranking, the Crown submits that the number and extent of these aggravating features puts it towards the upper level of band two, meaning a starting point between nine and 10 years.  Given the range of seriousness intended to be covered by band two, I consider the Crown overstates the relative seriousness in its reference to the Taueki criteria.  I put this offending around the half-way point in band two, meaning a starting point  between seven and seven and  a half  years’ imprisonment.

[31]     Cross-checking  those  suggested  starting  points  using  the  two  methods suggests a range between seven and seven and a half years.   I would settle on a starting point of seven years and three months’ imprisonment.

[32]     I then have to consider aggravating and mitigating factors that are personal to you as the offender.  You have an extensive criminal history, having been sentenced to 13 terms of imprisonment since 1998, all for crimes of violence.   The Crown contends that this justifies an uplift of between one and two years’ imprisonment.

[33]     In terms of your personal circumstances, the pre-sentence report makes sad reading. You had a troubled childhood and an early introduction to crime.  It appears that you lack the motivation to change and you are uncomfortable when released from prison on parole conditions to an extent that you have previously re-offended to avoid being on supervised parole.   You are assessed as being at a high risk  of re-offending.   This time, at the age of, I think, 32, you are going to prison for a substantially longer term than any of your previous 13 sentences of imprisonment, and I urge you to take part positively in the programmes that should be offered to you, to change your attitudes which have been persistently in favour of offending.

[34]     The pre-sentence report does not  offer any mitigating  circumstances that would justify a reduction in the sentence.

[35]     Accordingly,  you  will  be  sentenced  to  eight  years  and  three  months’

imprisonment.

[36]     A final aspect is to address the Crown application for the imposition of a minimum period of imprisonment.  The Crown argues that parole after the usual one third  would  be  inadequate  to  address  the  denunciation  of  your  conduct  and protection of the community.  Mr Stevenson submits that a period of imprisonment, particularly if I do not follow his urging to make it shorter, served on a usual basis is severe enough and that I should leave your release date to the Parole Board, particularly having regard to a sentence that may be crushingly severe if you know that there is a minimum period.

[37]     However,  I  am  persuaded  that  additional  signals  of  denunciation  and protection of the community are required.  Those are criteria I have to have regard to and, as the Crown has pointed out, this offending occurred shortly after your release from  the  last  sentence  of  imprisonment  for  violent  offending.    There  was  a callousness about the way you assaulted Mr Mulholland that has continued since then in your attitude towards it.   The final signal has to send a message of an

[38]     The Crown has pressed for reparation of the sum taken from Ms Moss of

$100.  As you will have heard, it has to be ordered unless there are special reasons not to do so under s 12 of the Sentencing Act 2002.  I consider here that there are special reasons.   The amount is small but it is beyond your present means.   The person entitled to have reparation would have to wait realistically until your release, and it would then represent a millstone around your neck and an impediment to your rehabilitation.  For those reasons, I am not going to order reparation.

[39]     Mr Turi, your conviction triggered the need for a first strike warning, and that was given to you orally at the time I entered the conviction in accordance with the jury’s verdict.

[40]     I accordingly sentence you on the conviction for manslaughter to eight years and three months’ imprisonment.  Of that, you are to serve a minimum of four years and three months.  On the conviction for theft, I sentence you to a concurrent term of one year’s imprisonment.

[41]     Stand down.

Addendum:

[42]     After sentencing Mr Turi, it was drawn to my attention that the sentence imposed on his conviction for theft was in excess of the maximum penalty for that conviction.  Although the indictment was filed before the coming into effect of the relevant provisions in the Criminal Procedure Act 2011, s 180 of that Act allows a sentencing judge to impose a new sentence of his or her own motion, where the

sentence imposed was one that could not be imposed by law.6

6      Transitional provisions in s 404 of the Criminal Procedure Act 2011.

for that which I purported to impose on the conviction for theft at the sentencing hearing.

Dobson J

Solicitors:

Crown Solicitor, Wellington

APPENDIX A SENTENCINGS FOR MANSLAUGHTER

R v Larson HC Dunedin CRI-2011-012-001013, 6 July 2011

One punch manslaughter, the defendant punched the victim in the side of the head in a manner which “blind-sided” him.   Victim fell to the ground and struck his head on the floor, the impact causing a fatal head injury.

No serious violence and an application of the Taueki bands deemed to be inappropriate.

Starting point of three years and six months’ imprisonment.

Thepresent case is more serious as it involved more than one punch to the head, more than one assailant, and a more personal context in which the assault occurred.

R v Grafton HC Christchurch CRI-2010-009-016104, 23 November 2011

Onepunch manslaughter, defendant striking the victim forcefully, causing him to fall and hit his head on the ground, causing a fatal head injury.

Starting point of three years and nine months’ imprisonment.

The present case is more serious for similar reasons to those in Larson.

R v Iota [2012] NZHC 3389

Defendant hit victim forcefully in the side of the head from behind, fracturing his skull. Victim knocked to the ground instantly hitting his head on the road. Death caused by either the force of the punch or the impact of his head hitting the road.

Assessed according to the Taueki sentencing bands.  Not considered to be a

true “one punch” manslaughter case as serious injury was intended.

Starting point of five years’ imprisonment.

Thepresent case is more serious.   More than one punch was inflicted and there were two attackers.  The intention to cause serious injury was similar, and the attack had the same level of gratuitous and unprovoked violence

which takes it out of the typical “one punch” manslaughter sentencing range.

R v Matautia and Langi HC Auckland CRI-2006-092-013486, 29 November 2007

First  defendant  struck  two  blows  to  the  victim’s  head,  the  second  blow caused him to fall backwards and hit his head on the pavement, causing a fatal head injury.  Both defendants then robbed the victim and drove away.

Starting point of six years and three months’ imprisonment.

Thepresent case is slightly more serious due to the more sustained nature of the assault (involving more than two punches to the head of the victim). However, a settled intention to rob the victim through the use of violence is not present in this case.

R v Tai [2010] NZCA 598

Defendant punched victim in the head, he fell to the ground and was kicked in the head, causing a fatal brain haemorrhage.

Starting point of seven years’ imprisonment.

Thepresent case involves similar levels of violence in attacking the victim’s head, however the same intention to cause serious harm by a kick to the head while the victim was on the ground cannot be inferred here.

R v Sullivan HC Wellington CRI-2009-485-00086, 10 February 2010

Agroup of defendants chased the victim and knocked him to the ground, and punched and kicked the victim while he was on the ground.

Aseven year starting point was adopted for Mr Kupa-Caudwell on the basis that he had a role in kicking the victim while he lay on the ground, but departed before the two co-accused inflicted the “real damage”.

The present  case involves similar levels of violence in the attacking the

victim’s head, but does not involve a pursuit of the victim, or any kicks to his head while the victim was on the ground.

R v Hughes and Shortland HC Whangarei CRI-2005-088-4349, 11 May 2007

Two defendants attacked a single victim by punching him once in the face, causing him to fall and hit his head on the pavement.   They checked his pockets for items to steal, and then lifted him and punched him again with similar force, and kicked him twice in the shoulder while he was on the ground.

Starting point of seven years’ imprisonment.

Theviolence in the present case was more sustained, involving more than two punches, but there was no evidence of it continuing after the victim had been knocked to the ground.   Violence involved in the present case was similarly unprovoked  and predatory, involving two assailants against  one victim, although there was no clear intention to rob the victim.

R v Clarke HC Rotorua CRI-2009-270-000073, 29 May 2009

Three defendants set upon victim, with one punch felling the victim, and while he was on the ground he was kicked and stomped in the head.   The victim managed to return to his feet, but was punched again to the head which caused him to stagger backwards and strike his head on the footpath.

Starting point of seven years and six months’ imprisonment for all three

defendants.

Nature of the violence in the present case is less serious, as there were no kicks or stomps to the head, and there was only one additional assailant who played a secondary role in the assault.

R v Stewart [2013] NZHC 126

Defendant and an associate chased the victim over a distance, pushed him to the ground and placed a knee on his sternum, and punched him twice while he was on the ground. The defendant then stood up and stomped on his abdomen, then stood on his abdomen with a substantial amount of his body weight.

Starting point of seven and a half years’ imprisonment.

The present case is a little less serious as the assaults were inflicted while the victim  was  still  standing,  there  was  no  pressure  or  force  applied  to  the victim’s abdomen, and there was no pursuit of the victim.  However, attacks to the head are more serious because they are to the most vulnerable part of a victim’s body.