R v UGT HC Rotorua CRI-2011-263-000073

[2011] NZHC 1872

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH S

438 OF THE CHILDREN, YOUNG PERSONS, AND THEIR FAMILIES ACT

1989. FOR FURTHER INFORMATION PLEASE SEE WWW2.JUSTICE.GOVT.NZ/FAMILY/LEGISLATION/RESTRICTIONS

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-263-000073

THE QUEEN

v

UGT

Hearing:         12 July 2011

Appearances: A F Pilditch and C H Macklin for Crown

A M M Schulze for Prisoner

Judgment:      12 July 2011

SENTENCE OF WHATA J

Solicitors:

Gordon Pilditch, Crown Solicitors, PO Box 740, Rotorua 3040

Lance Lawson, PO Box 2279, Rotorua

R V UGT HC ROT CRI-2011-263-000073 12 July 2011

[1]      UGT you are charged and have pleaded guilty to the offence of manslaughter. That offence carries a maximum penalty of life imprisonment.

Relevant facts

[2]      This  is  a  tragic  account  of  the  loss  of  a  life  caused  by  alcohol  fuelled violence.

[3]      UGT you stabbed TT in the groin area while fighting with him.  He died soon after on your front porch.  He was a close friend to you, and on some accounts, your closest friend.

[4]      On the night of 20 August 2010, you, TT, your girlfriend and other friends had been drinking alcohol and smoking cannabis at your home.  You obtained this alcohol from your mother, among others.   It was a potent mix, with various altercations occurring between yourself, your girlfriend and TT throughout the night.

[5]      The fatal fight between you and TT followed from a heated dispute between you and your girlfriend.  At the conclusion of that dispute you had indicated to your girlfriend that you intended to commit suicide.   It seems that you then retrieved a knife from the kitchen area.   TT intervened in the hallway and this intervention progressed to a fight that ended up in a bedroom.

[6]      Your girlfriend and a boarder who lived in the bedroom tried to intervene in your fight with TT.  When the fight concluded, in a particularly poignant moment, TT hugged the boarder and apologised to her for an earlier blow that had happened in the dark while they tried to intervene. You have said that TT said he loved you.

[7]      At the end of the fight no one realised how badly wounded TT was until he left the room and it became clear that he had lost a significant amount of blood.  TT then went outside onto the doorstep at the address where he slumped over and died within a few minutes.  By the time the ambulance staff arrived, shortly after 10.00 p.m., TT was beyond treatment and was declared dead almost immediately.

[8]      UGT, you were distraught when you realised that TT was badly hurt.  You were heard to exclaim the words to the effect that the deceased, TT, was your best friend and that if he was dead that you would kill yourself.  You were then joined by your girlfriend, and to onlookers you both appeared almost hysterical.   You again mentioned killing yourself.

[9]      The police then took you into custody for your own protection.  While there you  repeatedly denied  responsibility,  suggested  that  TT had  been  contemplating suicide and then denied being present when TT was stabbed.

Personal history

[10]     I now turn to your personal history.  You are now 16 and of Te Arawa and Päkehä descent.   Hamilton is your birthplace, but your family moved frequently. Your parents separated when you were 11 and you have lived with your mother for the most part since.   You have maintained contact with your father.   When the offending occurred you were living in Rotorua with your mother, cousin and younger brother.

[11]     Your family relationships are described by you as fairly close, and you say your mother spoilt you.   This comment is confirmed by CYF staff.   You have a girlfriend of three years and you describe your relationship as “up and down”.

[12]     TT is described by you as your “bro”.   The two of you grew up and did

everything together and you say that you are close with the victim‟s family.

[13]     Because your family moved regularly, you attended numerous schools.  You did not really enjoy school and maintain that you want to become a league player. You have also undertaken studies at Toromai at Te Waiariki Purea Trust, but were suspended in 2010 for fighting.  This course entailed life-skills learning in relation to employment and you were close to completing the course before your current offending.

[14]     You are described as an active sportsman, being involved with league, school rugby and touch. You are also a talented artist.

[15]     In 2010 you were employed part-time in the kiwifruit industry but currently you have no independent income.

Prior convictions

[16]     I understand that you have appeared in the Youth Court, but that you have no relevant convictions.

Pre Sentence report

[17]     I turn to your pre-sentence report.

[18]     At the time of your offending, the report confirms that you had consumed a considerable amount of alcohol – apparently you noted that it was the “most I„ve ever drunk” and this was combined with cannabis.   This mixture was one that apparently you were unaccustomed to.  You said that your substance abuse (alcohol and cannabis) began at 15.  As such you are fairly new to using these substances. You are adamant that you “don‟t wanna even go there anymore”.

[19]     The report observes that you have some insight into your offending behaviour and says that the last few months have been hard and that you wish you could go back.   The report says that you are yet to experience the true effects of the circumstances and that you speak of the victim as if he were still alive.  Although you expressed limited remorse, this is attributed to an inability to express  your feelings rather than a lack of remorse.   The report in fact considers you deeply remorseful,  with  this  supported  by  your  engagement  in  the  restorative  justice process.

[20]     The report saw your substance abuse, propensity to violence, relationship difficulties and unhelpful lifestyle as contributing factors to the current offending. You   agreed   to   participate   in   a   substance   abuse   programme   and   this   was

recommended.     Psychological  counselling  was  also  highly  recommended  to overcome the long-term emotional consequences of the offending.

[21]     You are assessed as being at medium risk of re-offending, with this able to be reduced through rehabilitative interventions and family/friend support.

[22]     The report-writer‟s recommendation is one of imprisonment.  If this is to be less than two years, release conditions are recommended.  If the Court proposes to show leniency, the report recommends intensive supervision, saying that this would adequately address rehabilitative needs and that 400 hours of community work are available as a punitive component.

Home detention assessment

[23]     The proposed residence (with your koru, JT), is unavailable as gang affiliated members are currently living there.

Victim impact statements

[24]     I have two victim impact statements before me.

[25]     TT‟s mother, J, is clearly heartbroken at the loss of her son.  She described her loss in the following way:

My son‟s death has broken my soul as he was the centre.

[26]     She says:

I am not whole and will never be.   I look for him and glimpse him everywhere.  I wait for him to come home.

[27]     She says:

Heartache has left me physically impaired and I am almost unable to stop crying.  When not at work I sleep, because I forget he‟s dead.  But when I awake it begins again, hammering in my brain; son… son… son…

[28]     While in such deep pain, J nevertheless seeks, in her words:

Clemency for this child, U, who still lives.  He feels my pain and cries my tears and aches as I do.  I see no gain in sending this boy to jail for a large chunk of his life.   This restores nothing for me.   I see no future for him inside a correctional facility. …

[29]     J also observes that UGT:

Is my sons‟ closest and dearest friend.

[30]     In this deep spirit of forgiveness, she describes TT‟s death as an accident.

[31]     J is “aghast” that alcohol and drugs are so freely available to our youth.  She

says that UGT “is not a bad boy, he just had a bad life with bad role models”.

[32]     She  is  also  grateful  for  the  support  that  she  has  had  from  the  agencies involved in this case, but laments the lack of support for U from CYFS as he has had five different case officers.

[33]     The second victim impact statement I have is from TT‟s father, John. [34]           Understandably he is in deep pain as a consequence of his son‟s death.

[35]     He says:

I dream of him every night, in my dreams he is alive and with me, then I wake up and find he is not there – that‟s the worst.  Rather than a dream it‟s more like a nightmare, one I live through every single day.

[36]     He says also:

I break down a lot where-ever I am, I can‟t be in the room with my mates for too long.  Everything reminds me of him, I grew up with that boy, we had gone through a lot together.

[37]     JT talks about “my beautiful boy”.  He has started drinking a lot whenever he can afford it to try and stop the dreams and the pain.  JT is plainly crestfallen that he is never going to see his grandchildren from TT.   He says that he cannot forgive UGT. He will always mourn the loss of and cry for his son.

[38]     I set out the full context to my sentence.

Purposes and principles of sentencing

[39]     I am now going to describe the principles that guide sentencing.

[40]     I have to take into account the purposes and principles of sentencing outlined in  ss 7  and  8  of the Sentencing Act  2002.   There is  a need  to  denounce  your offending and to hold you accountable for the harm you have done.  The sentence is intended to promote a sense of responsibility in you for that harm.  There must be deterrence, both against future offending by you and against others who might act similarly and I have to consider the protection of the public.

[41]     The sentence I impose on you must be consistent in kind and in length with those imposed on others who have offended in a similar way.  I must consider the gravity of your offending and your culpability.   I must also take into account any circumstances that might otherwise make an appropriate sentence disproportionately severe and any effects that the offending has had upon you.

Manslaughter

[42]     In assessing the appropriate sentence I turn first to the submissions for the

Crown and then the submissions for you.

[43]     The Crown submits that a starting point in the range of seven to eight years is appropriate.  The key aggravating factor for the offending, the Crown says, in setting this starting point is the use of a weapon.  While there is no tariff for manslaughter, the Crown points to three cases involving young people using knives in volatile situations.  I summarise these briefly because it is important when reaching a final sentence to seek to achieve consistency in sentencing with similar cases.  In addition, where there are clear points of difference, they must be taken into account also.

[44]     The Crown refers to R v Raivaru.1   This involved a 15 year old offender who stabbed  his  stepfather  in  the  chest.    It  involved  alcohol.   Aggravating  features

included premeditation and the use of a knife.  The starting point imposed was seven

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

years.  Mitigating factors included the guilty plea, age, previous good character and

remorse.  Ultimately a final sentence of four years‟ imprisonment was imposed.

[45]     In R v Edwardson,2  the offender was 16 years old and stabbed a victim at a party.  Again alcohol had been consumed.  Aggravating factors included violence, the use of a weapon, the age of the victim and pre-meditation (though this was a lesser consideration in that case).  The starting point was seven years and the final sentence was four years and nine months.

[46]     In R v Ames,3 the offender was 14 years old. Again there was stabbing with a knife, and alcohol and cannabis had been consumed.  The starting point was eight years.   Mitigating factors included age, remorse, aand acceptance of responsibility through a guilty plea. The final sentence was five years.

[47]     Returning to your case UGT, the Crown identifies no aggravating factors relevant to you.  It accepts that your youth, remorse and willingness to participate in restorative justice are mitigating factors.  The Crown does not suggest a discount. The Crown does accept that in relation to the guilty plea a significant discount is appropriate, but not necessarily the full 25 per cent.

Offender’s submissions

[48]    Your counsel submits that an appropriate sentence would be two years‟ imprisonment.  Your counsel has referred to the case of R v Te Moana-Takao.4    As your counsel points out, the offender in that case was 15 years old and the Court observed that he would not have a “properly developed sense of responsibility”.  The Judge in that case also referred to the offender‟s background and particular reference was made to the unsettled care arrangements and the dysfunctional nature of his

family environment.

2 R v Edwardson HC Rotorua CRI 2006-069-1101, 27 April 2007.

3 R v Ames HC Rotorua CRI 2008-263-000019, 30 October 2009.

4 R v Te Moana-Takao HC Rotorua CRI 2006-287-83, 13 June 2007.

[49]     A key feature, he said, in this case also was that the family environment was dysfunctional at the time leading up to the offence.   The prisoner‟s  mother was a poor role model.

[50]     Harrison J  adopted  a  starting  point  of  four  years  with  a  final  term  of imprisonment of two years.

[51]     Mr Schulze also suggested that by analogy this case falls somewhere between

Band 1 and Band 2 applying Taueki.

Analysis

[52]     In approaching sentencing I first consider the culpability of the offending itself without considering matters personal to  you, and  I fix a starting point in relation to that offending.5    I then later consider mitigating factors relevant to you personally.

[53]     A special feature of this case  however is  your  youth.   The Courts have developed a clear methodology for taking that factor into account.  The methodology was restated by the Court of Appeal in the context of youth sentencing in R v E.6

[18]      As this Court made clear in R v Taueki [2005] 3 NZLR 372 at [8] and [43]-[44], the first step in the sentencing process is to identify a starting point that reflects the culpability inherent in the offending. That should identify the sentence considered appropriate for an adult offender after a defended hearing. Once that has been done, the aggravating or mitigating circumstances in relation to the offender‟s particular personal circumstances must be considered in order to determine whether the sentence imposed should be higher or lower than the starting point.

[19]    In a case such as the present, this methodology means that circumstances personal to the offender, such as youth and immaturity, should be put to one side at the first stage when the starting point is fixed, and should be brought into consideration at the second stage. This was what happened in Castles and is the effect of what the Judge did in the present case. There was no error of principle in this approach.

[54]     It is also recognised that for youth sentencing there is the overlay of the UN Convention on the Rights of the Child (UNCROC) that needs to be considered.  As the Court of Appeal summarised in Pouwhare v R: 7

When sentencing a young person, therefore, a judge should, to the extent that this is consistent with the letter of the Sentencing Act, act in accordance with the  Convention  and, in particular, should treat the young person‟s “best interests” as a “primary consideration” [pursuant to article 3.1].

[55]     The same Court however emphasised that there can be no warrant for saying that youth, of itself, must always prevail as the paramount value on sentence, or that youth alone can justify radically reducing the sentence which would otherwise be proper.8

[56]     Finally, the Court must always balance the offender‟s youth and prospects of rehabilitation against other factors like deterrence and protection of the community to the extent that those factors arise in each case.

[57]     As I have said, the Crown seeks a starting point of seven to eight years. Your counsel refers to a starting point of six years, though as I have said, encourages me to follow the approach taken by Harrison J in R v Te Moana-Takao.

[58]     This case has many of the features of the cases that the Crown relied upon. The offending occurred in the context of consumption of alcohol, violence and the use of a knife.  But there are also distinguishing features in respect of two of those cases, namely R v Ames and R v Raivaru.  In those cases there were clear elements of premeditation.    I am  satisfied  that  there  is  no  such  premeditation  in  this  case. Indeed, based on the summary of facts provided to me, you were in the process of doing yourself harm with no thought for doing harm to others.

[59]     Accordingly, your facts bring you more closely into line with the facts in R v Te Moana-Takao and R v Edwardson.  But unlike here, in Edwardson, the offender carried a small knife with a retractable blade, concealed on her person.   That is

hardly comparable to this case.  The nature of the stabbing and the wider context of the conflict are also different.

[60]     Turning then to the R v Te Moana-Takao case, there are striking similarities with this case, including the manner of the violence and the personal circumstances of the offender.

[61]     I also consider the following factors to be unusual:

(a)       You retrieved the knife not for the purpose of harming others, but harming yourself.

(b)      TT intervened, and then the violent act occurred.

(c)       It is not clear how the stabbing occurred, but it is relevant that it was a stab to the leg.

[62]     I accept therefore that while your stabbing was deliberate (and therefore not an accident), it was not by any measure gratuitous violence.

[63]     In light of that review, I am satisfied that a starting point at the lower end of the scale presented to me is appropriate.  I consider a starting point of six years is appropriate and commensurate.   I depart slightly from the starting point taken by Harrison J as I do not consider, with respect to his careful approach, that lack of intention is a mitigating factor as it is inherent to the charge and nor do I consider intoxication or youth as a mitigating factor relating to the offending for the purpose of setting the starting point.

Aggravating and mitigating factors relating to your personal circumstances

[64]     I now turn to examine any aggravating or mitigating factors relating to you personally.

[65]     I accept that there are no aggravating factors personal to you.   I regard as significant mitigating factors the following:

(a)       You were only 15 at the time of the manslaughter.

(b)You were not given the proper parental guidance, in fact you were afforded the wrong parental guidance when you needed it most.

(c)      You are clearly full of remorse, and I think appreciate the full harm that you have caused.

(d)You have participated in a restorative justice meeting with the victim‟s mother and she has made a plea on your behalf for leniency.  This in my view supports the inference that you are genuine in your feelings and commitment to do the right thing from here.   (I balance this against the victim‟s father‟s comments.)

Guilty plea

[66]     You gave an early guilty plea (entered as soon as the Crown reduced the charge from murder to manslaughter) and therefore avoided any further harm to the victim‟s family in prolonging this matter.  I note that Mr Pilditch accepted that the circumstances of the stabbing were grey. Your admission therefore was of real value. I consider a full 25 per cent discount is warranted.

[67]     Having regard to all of those matters, while ensuring that any reduction in sentence is proportionate to the reductions employed in other contexts, I propose a discount of three years (or 50 per cent) overall with a final sentence of three years‟ imprisonment.

[68]     Please stand UGT.   Your sentence is three years‟ imprisonment.   You may stand down.

Addendum

[69]     I also extend name suppression pending submissions from counsel for the prisoner seeking name permanent suppression and mention of this matter at a call-

over at 9.00 a.m. on Thursday 14 July 2011.

Whata J