R v Turipa-Wano

[2017] NZHC 1803

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2016-082-241 [2017] NZHC 1803

THE QUEEN

v

PUKEHORE PENEHIO TURIPA-WANO

Counsel:

C R Walker for Crown

E R Fairbrother QC for Defendant

Date:

28 July 2017

SENTENCING REMARKS OF CLARK J

[1]      Mr Turipa-Wano you may remain seated until I come to impose sentence.

[2]      I  am  to  sentence  you  today  for  manslaughter,  wounding  with  reckless disregard and unlawful possession of a firearm.   You were found guilty of manslaughter following a jury trial on a charge of murder.  The jury found you guilty of wounding with reckless disregard and you pleaded guilty at the close of the Crown case to the charge of unlawful possession of a firearm.

[3]      You have not appeared in the courts before. You may not be familiar with the sentencing process.   It is a public process and one that requires me to go through certain steps.

(a)       first, I will set out the background to your offending;

(b)      then I will discuss the impact of your offending on Tawari Mita’s

family;

R v TURIPA-WANO [2017] NZHC 1803 [28 July 2017]

(c)       I  will  then  assess  what  is  an  appropriate  starting  point  for  your sentence; and

(d)whether  there  should  be  any  adjustments  up  or  down  from  that starting point; and

(e)       finally I will impose sentence in respect of all offences.

Background

[4]      On 1 July 2016 you and Mr Mita had been working together.  You finished around mid-afternoon.  In the early evening you gathered with others to socialise at Waimako Pa where you living.

[5]    You  were  drinking  alcohol.  You  also  consumed  cannabis  and methamphetamine.    As  the  evening  wore  on  and  you  had  more  alcohol  your behaviour changed.   You became intimidating and aggressive.   For example, you said to the group, but not to anyone in particular, “I’ll fucking kill a person if he fucks with me”.  And you said “I may be slow, that’s why I use weapons”.  You became increasingly aggressive.  You smashed bottles and you flipped the kitchen table.

[6]      You picked up a large bread knife and threatened Whitiaua Spooner with it. Mahaki Beattie attempted to disarm you.  In the skuffle you pulled your arm back and the knife ran across Mr Beattie’s forearm cutting him.  The wound left a scar about 10 cm long.  You didn’t stop there.  You charged at Mr Spooner and punched him.  Eventually you were persuaded to leave and you went to your home very close by.

[7]      You locked yourself in the house and went into your parents’ bedroom to get a gun.  It was locked in a cupboard. You smashed a hole in the cupboard and you got the gun out.  You rummaged around looking for the bolt.  Your father wanted you to let him into the house but you had jammed the doors locked and he could not enter. The police were called but they were some 40 minutes away.

[8]      Meanwhile you picked up a knife and a large wrench and you stormed back into the gathering in apparent rage.   You smashed the wrench against walls and cupboards.  You threatened and intimidated and taunted.  You said: “which one of you wants to die?”

[9]      Tawari Mita told you to stop.  He said you were scaring your nieces.  He said you were putting on an act and called you a “pussy”.  You held up the wrench in a threatening gesture towards Mr Mita who tried to get it off you.     You stabbed Mr Mita just under his collar bone.  The two of you tussled and you stabbed Mr Mita again.  Mr Mita punched you and restrained you from behind and told you to get out. You did so.  Mr Mita died from internal bleeding.  Both stab wounds had penetrated his left lung.

[10]     Meanwhile the police had arrived.  They were directed to your house.  You were inside and when you saw one of the officers you pointed the gun at him.  Then you opened the door and stepped out.  The officer challenged you with a taser and you immediately dropped the rifle and placed your hands behind your back for handcuffing.

[11]     You were told you had killed Tawari.  You could not believe you had killed your best friend.  You said you deserved to die and throughout the three-hour police interview you continued to express your sorrow.

Victim impact statements

[12]     Three  victim  impact  statements  have  been  read  today.    They  are  from Mr Mita’s sisters.  They speak of their devastation in losing their cherished brother. One sister still has not told her daughter why her uncle is not there anymore.  It is too painful to explain to a five year-old, she says, how her uncle died.   The sisters describe a life of pain and heartache and grief that has no timeframe and of having to witness the pain and hurt of watching the heartbreak of their parents. They are restrained  and  thoughtful  in  their  expressions  of  grief.    Their  statements  and reactions are kind to you Mr Turipa-Wano because despite the pain and hurt you have caused, one of the sisters specifically says she does not hate you but she is disappointed that you had such a lack of self-control and could not get the help you

needed to deal with your issues.  Another says, you have a chance to have a future even if, as I noticed you did, you shook your head at that.

Manslaughter: starting point

[13]     In sentencing you I am to be guided by the purposes and principles of the

Sentencing Act 2002.  The maximum penalty for manslaughter is life imprisonment.1

Because you have taken a life the purposes of sentencing at the forefront of my mind are the need to hold you accountable for the harm you have done, and to denounce your behaviour and to protect the community.

[14]     In considering the sentence to be imposed I will have regard to all the factors relevant to your offending including what has been said in the reports that I have received. As well, your sentence must be broadly consistent with the sentences other offenders have received in similar circumstances.

[15]     The New Zealand Court of Appeal has said on many occasions that there is no tariff for sentencing in manslaughter cases.2   That is because of the wide range of circumstances  in  which  a  person  may be  killed  through  an  unlawful  act.    The approach the Court must take — that I must take — is to look at similar cases.  The Crown suggests that a guideline decision of the Court of Appeal called R v Taueki3 is helpful.  I will bear that decision in mind but I will be cautious in applying it. I can and will assess an appropriate starting point by reference to cases involving facts that are comparable to the circumstances of your offending.

[16]     Both counsel have put before me a number of cases they say have features similar to your case.  I have had regard to those cases which are summarised in an appendix to my sentencing remarks.

[17]     There are particular features of your offending that make it more serious.

(a)       It  was  unprovoked.    Although  your  counsel  suggested  in  closing

1      Crimes Act 1961, s 177.

2      See for example Murray v R [2013] NZCA 177 at [20].

3      R v Taueki [2005] 3 NZLR 372 (CA).

argument to the jury that everybody knew that when you were in such a state they should just leave you alone and if Mr Mita had done so and not referred to you as a “pussy” he may be alive today.   Your counsel was free to make such a submission before the jury but it is not a factor I take into account as leading to a lower starting point.  It is not enough to have been incensed or angered by the actions of the

victim or another. The provocation, if there is any, has to be serious.4

(b)The stabbings occurred in the context of a prolonged violent episode during which  people were threatened.   That’s  another aggravating factor.

(c)       The use of a lethal weapon such as a knife is an aggravating factor.

(d)You stabbed Mr Mita not once but twice.  In doing so you must have appreciated that what you were doing was likely to cause his death.

[18]     Your counsel suggests a starting point of six to seven years is appropriate. The  Crown  submits  nine  years  is  the  appropriate  starting  point.    Your  counsel submits there are similarities between your situation and the facts in a case called the R v UGT.5   There the Judge adopted a starting point of six years.  In that case, as a result of an alcohol and drug fuelled altercation, the defendant stabbed his good friend in the groin.  The victim died.  While there are some similarities between your case and that there are important differences:

(a)      In UGT the defendant retrieved the knife for the purpose of harming himself not others.

(b)      Secondly, the stab was to the leg.  It’s recognised as a less vulnerable

part of the body.

(c)      The Judge also accepted that while the stabbing was deliberate it was not gratuitous violence.  There was no element of premeditation in the

4      R v Taueki, above n 3, at [32].

5      R v UGT HC Rotorua CRI-2011-263-073, 21 July 2011.

case.  The defendant was in the process of harming himself.  He had no thought for doing harm to others at the time his friend intervened.

[19]     In another case Mr Fairbrother relied on called R v Raivaru6 the 15 year-old defendant pleaded guilty to a single charge of manslaughter.  Again consumption of alcohol loomed large.  The Judge did not go into the detail of what he described as the difficult circumstances that arose that evening but it was clear the defendant confronted serious provocation.  And the Crown accepted that in that case.   Even after reducing the starting point to take into account the provocation involved, the Judge assessed the appropriate starting point at seven years.

[20]     In another case relied on by Mr Fairbrother the Judge adopted a starting point of  eight  years.    But  the  defendant  was  14  when  he  killed  the  victim  and  so intoxicated he did not understand what he was doing.   That case was called R v Ames.7

[21]     I find two cases relied upon by the Crown are more relevant comparators.8   In both cases the Judge adopted a starting point of nine years for offences involving unprovoked stabbing, no intention to kill and alcohol and drug fuelled irrational behaviour.

[22]     In the first of those cases, R v Day,9  the defendant had been drinking and smoking cannabis  and  became  angry at  someone lighting  a  cigarette  inside the house.  He jumped on the smoker and in the altercation the defendant’s guitar was broken.  He then attacked the deceased with a knife.  In R v Olly10 both the defendant and the deceased had consumed alcohol and cannabis.  Following an argument the deceased initially threatened the defendant with a knife.  This knife was taken from the defendant but he later grabbed it and stabbed the deceased who was still seated,

once in the chest.

6      R v Raivaru HC Rotorua CRI-2004-077-1667, 5 August 2005.

7      R v Ames HC Rotorua CRI-2008-263-19, 30 October 2009.

8      R v Day [2014] NZHC 3412 and R v Olley [2012] NZHC 40.

9      R v Day [2014] NZHC 3412.

10     R v Olley [2012] NZHC 40.

[23]     Similarly  to  those  cases  a  nine  year  starting  point  reflects  the  overall seriousness of your offending.  Mr Mita was unarmed.  He was only trying to calm the situation and yet he was stabbed twice in the chest which is a vulnerable part of his body.

[24]     That starting point of nine years is reached without taking into account any aggravating or mitigating factors that are personal to you.   I now turn to those matters.

Personal factors

Character

[25]     The Crown submits that when considering your character there should be no adjustment from the starting point either up or down.  On the one hand you have no previous convictions and the evidence was that when sober you are peaceful and good company.   A good man.   On the other hand the Crown says you know that when you become intoxicated you behave aggressively and you need to be responsible for that.

[26]     You left school at the age of 17 years.   You began voluntary work with Te Uru Taumatua, associated with the iwi of Tūhoe in respect of conservation of kiwi.  Just prior to your offending at age 20, you had been given a permanent, paid position with the Department of Conservation for doing the same type of work.  You are a New Zealand Māori of Tūhoe descent, you are fluent in Te Reo Māori and case notes indicate a passion for tikanga.   Your mother has confirmed that the family would continue to support you and would continue to visit and remain in contact with you during your sentence.  You have no previous convictions.  I consider your good character apart from this serious offending is to be recognised by a deduction of six months from the starting point.

Remorse

[27]     The Department of Corrections has  prepared  a pre-sentence report.   The author writes of your genuine remorse for the offending and that you will struggle

with the emotional turmoil for many years to come.  You have spent a considerable amount  of  time  housed  in  the At  Risk  Unit  within  the  prison  and  have  been monitored closely.  You have spoken with staff about your feelings of guilt at the outcome of the trial in that the conviction was likely to bring about quite a different sentencing outcome to that of murder.

[28]     I have seen  your letter to the Police —  I received that this morning — apologising for your behaviour and I understand you have written to Mr Mita’s family.  It was apparent to Corrections staff that you gave serious consideration to what you would write and whether your words would be enough to articulate how you felt.

[29]     I accept that your remorse is real.  As Mr Fairbrother submitted your distress during the video interview was palpable.  That was in his written submissions.   It seems your remorse continues to overwhelm you.   I propose to allow a further reduction of six months in recognition of this.

Offer to plea

[30]     You have never denied your responsibility for the death of someone you describe as your best friend.   In fact you offered to plead guilty at the outset to manslaughter.   Although  you  still  went  to  trial  because  you  were charged  with murder your offer to plead guilty to manslaughter at the outset is significant.  As Williams J noted in the case of R v Day11 that offer represented early acceptance of responsibility at least to that extent.  Some recognition of your early acceptance is warranted.   I discount the starting point by six months for your offer of an early guilty plea.

[31]     These discounts totalling 18 months reduce the initial starting point of nine years to a starting point of seven years and six months.

11     R v Day, above n 8, at [28].

Section 27 Cultural Report

[32]     I turn now to the s 27 Cultural Report that I received late yesterday.  It is a report prepared by Denis O’Rielly and Laurie O’Rielly.  The purpose of the cultural report is expressed to be to provide context to your offending.  The 15-page report draws on numerous sources as well as the trial material.  The report highlights sexual abuse by older boys when you were young.  The historic sexual abuse was a matter that Mr Fairbrother emphasised at trial although it had not been mentioned to the psychiatrists who you had seen, one of whom was called to give expert evidence on your behalf.

[33]     The cultural report emphasises also issues with cannabis and alcohol.   The report suggests that with your fluency in Te Reo Māori you would be an excellent candidate for the Te Tirohanga programme in the Māori Focus Unit.

[34]     I have found the report helpful to this extent.  It strengthens the advice in the pre-sentence report that you are motivated to undertake any intervention to address your substance abuse.  That is relevant and important because, due to the nature of your offending, you were assessed as presenting a high likelihood of causing harm to others until such time as you have addressed the underlying offending behaviours. During  your  time  on  remand  you  have  engaged  in  self-directed  study  and  I understand you are currently undertaking courses of legal studies and accounting and intend to take any counselling and education programmes made available to you while serving your sentence.  You have indicated you will be willing to undertake psychological intervention available to address your problems.  You have spent time with the Prison Chaplain in your early remand.

[35]    Your rehabilitative potential, your deep desire to make amends for your offending and your commitment to addressing the underlying causes of your behaviour and substance abuse is relevant to sentencing.   I consider a further reduction of six months appropriately recognises the seriousness of your offending but also your commitment to and potential for rehabilitation.   This means an end sentence of seven years for manslaughter.

[36]     I turn now to the other two offences.

Wounding with reckless disregard

[37]     The maximum penalty for a charge of wounding with reckless disregard is seven years imprisonment.12    In your case the level of violence was relatively low but that said, Mr Beattie was unarmed and has been permanently scarred.  I consider a sentence of one and half years in light of all the circumstances which I have discussed is appropriate.

[38]     The   wounding   was   connected   in   time   and   place   to   the   stabbing. Consequently, that sentence is to be served concurrently with the sentence of seven years imprisonment for manslaughter.

Unlawful possession of a firearm

[39]     Likewise  the  unlawful  possession  of  a  firearm  for  which  the  maximum penalty is four years.13   It was part of a connected series of events.  That you pointed it at a police officer, was as the Crown submits, particularly serious. A twelve month sentence of imprisonment is appropriate and is to be served concurrently with your sentences for manslaughter and wounding with reckless disregard.

Minimum period of imprisonment

[40]     The Crown submits that a minimum period of imprisonment of at least one- half is appropriate because eligibility for release after serving one-third would be insufficient in light of the seriousness of the violence and harm.  I am satisfied that the sentences of imprisonment to which you are to be imposed hold you properly accountable for the harm you have done.  The sentences are sufficient to protect the community while you undertake the rehabilitation you are committed to and which it seems not only your family but Mr Mita’s family support.

Sentence

[41]     Mr Turipa-Wano  you  are  sentenced  to  seven  years  imprisonment  on  the charge of manslaughter.

12     Crimes Act, s 188(2).

13     Arms Act 1983, s 45(1)(b).

[42]     On the charge of wounding with reckless disregard you are sentenced to one and a half years imprisonment.

[43]     On the charge of unlawful possession of a firearm  you are sentenced to twelve months imprisonment.

[44]     The sentences are to be served concurrently.  This means you will serve them all at the same time.

[45]     Please stand down.

Karen Clark J

APPENDIX

R v Ormsby [2016] NZHC 2220

The defendant went to an address with a metal bar and attacked the head of his victim. The victim was subsequently strangled by another individual, and died.   The Judge adopted a starting point of 11 years and six months imprisonment to take into account the premeditation, use of a weapon and blows to the head along with two other factors, serious injury and use of serious violence.  The Judge considered that if the victim had died of wounds inflicted by the defendant, the starting point would have been 13 years.

R v Day [2014] NZHC 3412

The defendant had been drinking and smoking cannabis and became angry at someone lighting a cigarette inside the house.   The deceased pushed the defendant off that person, causing the defendant to roll onto and break his own electric guitar.   The defendant grabbed a knife, confronted the deceased, tried to remove him from the house and stabbed him several times in the stomach, chest and arm.  The defendant claimed that the stabbing occurred during a panic attack in which he was not aware of his actions.

R v Olley [2012] NZHC 40

Both the defendant and the deceased had consumed alcohol and cannabis.  Following an argument the deceased initially threatened the defendant with a knife.  This knife was taken from the defendant, but he later grabbed it and stabbed the deceased, who was still seated, once in the chest.  By reference to other manslaughter cases and also to R v Taueki the Judge adopted a starting point of nine years imprisonment.

R v UGT HC Rotorua CRI-2011-263-073, 21 July 2011

A 15 year-old UGT was drinking and smoking cannabis at home with his friends. During the night, various altercations had occurred between UGT, his girlfriend and a friend TT.   In one of these arguments UGT indicated that he intended to commit suicide.  He retrieved a knife from the kitchen area.  TT attempted to intervene and the two became involved in a physical altercation.  TT died following the fight.  TT was UGT’s closest friend; the two grew up and did everything together.  The Judge adopted a starting point of six years, noting that the weapon was intended for self harm and TT had intervened.

R v Raivaru HC Rotorua CRI-2004-077-1667, 1 August 2005

A 15-year old defendant got into a fight with his step father.  The defendant left the altercation and armed himself with a large carving knife.  He returned to his step-father and fatally stabbed him in the upper part of his chest.  The Judge held that a starting point of seven years was appropriate to account for the particular nature of the attack which involved a degree of premeditation, reduced by what was accepted as significant provocation.

R v Ames HC Rotorua CRI-2008-263-19, 30 October 2009

A group of young people were drinking a garage.  The defendant stabbed the deceased while he was helpless.  He left the deceased to die.  The Judge adopted a starting point of eight years imprisonment.