R v Unasa

[2020] NZHC 3139

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-292-1741

[2020] NZHC 3139

THE QUEEN

v

EMANUEL UNASA

Hearing:	27 November 2020
Appearances:	A J F Perkins QC for the Crown C J A Leys for the Defendant
Judgment:	27 November 2020

SENTENCING NOTES OF POWELL J

R v UNASA [2020] NZHC 3139 [27 November 2020]

[1]        Emanuel Unasa, you appear for sentence this morning after pleading guilty to the manslaughter of Phillip Goffe.

[2]        You are here today because of what happened earlier this year, on 13 February 2020.

[3]        In the early morning of that day you were drinking with three friends in Laurie Gibbons Park in Weymouth. Your group was making quite a bit of noise.

[4]        As it happened Mr Goffe, his wife and their two sons lived close by the park. The noise that you and your friends were making upset one of Mr Goffe’s sons who was trying to sleep. Mr Goffe’s son went out to the front of the house and yelled at you and your associates over the fence.

[5]        Instead of quieting down the four of you reacted aggressively. Together you all went up to the front gate of Mr Goffe’s property and tried to encourage Mr Goffe’s son to come out and fight.

[6]         Mr Goffe and the rest of his family went out to attempt to defuse the situation. They knew that the son who had been woken up had mental health issues which could cause him to be confrontational and aggressive. They told you and your friends that he was unwell and did not mean what he was saying, and Mrs Goffe took her son back into the house. Mr Goffe and his other son told you and your friends to leave.

[7]        You did not do so. Instead, your group shook the gate, threw punches in the air, and gestured for a fight. At some point you and one of your friends jumped over the fence and walked towards Mr Goffe and his family. This led to Mr Goffe’s son came back out of the house to confront you and meant that the rest of the Goffe family had to put themselves between you and your friends, and their son and brother

[8]        At that point, your other two friends, who showed a little bit more common sense, jumped the fence and tried to remove you and your associate from the property. They succeeded in persuading you both to leave, and the four of you jumped back over the front gate and onto the footpath.

[9]        As you left, Mrs Goffe took her son back into the house. Mr Goffe followed your group and confronted you all about coming onto his property without permission.

[10]      You responded by punching him in the head. Mr Goffe fell backwards onto his concrete driveway. He struck his head and lost consciousness briefly.

[11]      As the emergency services were called you and your friends walked off towards the park.  You  were arrested very shortly afterwards, still within sight of   Mr Goffe’s home. When spoken to, you told Police “I knocked him out”, pointing to Mr Goffe, who was by then being led awy to the ambulance. You were arrested for assault.

[12]      Although Mr Goffe regained consciousness, he was confused and was admitted to hospital. Once there he was placed on life support. A CT scan showed what is called a large acute subdural haematoma, that is a collection of blood between the brain and its outermost covering. The blow that Mr Goffe had received had caused what is described as a “left midline shift” which means that Mr Goffe’s brain was pushed past its centre-line. The scan also revealed Mr Goffe was suffering from hydrocephalus which is an accumulation of brain/spinal fluid within the brain, and duret haemorrhages, which are areas of bleeding in the midbrain and upper pons of the brainstem.

[13]      As a result of these injuries, five days after you punched Mr Goffe, he died. He was only 60 years old. There is no doubt that the cause of Mr Goffe’s death was blunt force trauma from his head hitting the ground when he fell after you punched him.

[14]      As you have heard this morning from Jared Goffe, your actions have devastated the Goffe family. The hurt is understandably very, very raw. The whānau have suffered a loss that simply cannot be replaced or made right, regardless of the outcome of this sentencing today. The simple reality is that you, by your action that night, have taken away their beloved husband, father, and friend. As Mr Perkins pointed out today it’s not just the whānau that has suffered loss, it is the whole community that Mr Goffe cared for. The sudden and tragic nature of his death meant his family did not get a chance to properly say goodbye to Mr Goffe, while the fact that it happened at home, where Mr Goffe should have been safe, keeps the pain and the hurt tangible, raw and ongoing. I acknowledge you, Jared, for sharing your thoughts and pain with us today. To your mother who has not been able to stay in the courtroom I acknowledge her as well for his loss, and to your whole extended whanau I acknowledge all of your loss as I undertake my role today.

Approach to Sentencing

[15]      I begin the formal part of my task today by explaining what I have to do and how I am approaching it. The Sentencing Act 2002 sets out what are described as the purposes and principles of sentencing. The primary purposes of sentencing in this case are to hold you accountable for the harm that you have done;1 to promote in you a sense of responsibility for, and acknowledgement of, that harm;2 to denounce your conduct;3 and to deter you and others from engaging in such conduct in the future.4

[16]      In this case, the principles of sentencing that are particularly relevant are: the need to take into account the gravity of your offending, including the degree to which you are responsible;5 the seriousness of the offending for which you are before the Court;6 and the impact, as I have just been describing, of that offending.7 It is also necessary and important that I consider consistency with the levels of sentencing that

1      Sentencing Act 2002, s 7(1)(a).

2      Section 7(1)(b).

3      Section 7(1)(e).

4      Section 7(1)(f).

5      Section 8(a).

6      Section 8(b).

7      Section 8(f).

the Court has applied in other cases.8 I note this Court is required to impose the least restrictive outcome appropriate in the circumstances.9

[17]      Determining an appropriate sentence for you involves two steps.10 First, as you have heard counsel discuss, I must determine what is referred to as the “starting point”. The starting point is a term of imprisonment that reflects the seriousness of the offending to which you have pleaded guilty. Once I have calculated the starting point, I must then take into account your personal circumstances that are relevant, both positive and negative, including any deduction that you are entitled to for your guilty plea. This will result in your end sentence and then, depending on the outcome of that exercise, I will decide how that sentence is to be served and that is where consideration of home detention and its appropriateness will come in.

Setting the Starting Point

[18]      In calculating the starting point I begin from the position that the maximum penalty for manslaughter is life imprisonment.11 This is because the charge involves the taking of a life. But as manslaughter covers a very wide range of circumstances there is no guideline judgment for manslaughter sentencing, unlike with other types of offences.12 Instead, as it is important to ensure that the sentence imposed reflects both the degree to which an offender is responsible for the offending and the offender’s circumstances, the types of sentences imposed can vary widely.

[19]      For this reason, sentencing in manslaughter cases proceeds on the basis of comparison with other comparable cases, and you have heard both counsel discuss those today in their submissions.13

8      Section 8(e).

9      Section 8(g).

10     Moses v R [2020] NZCA 296.

11     Crimes Act 1961, s 177(1).

12 R v Edwards [2005] 2 NZLR 709 (CA) at [14].

13 Murray v R [2013] NZCA 177 at [20]-[21]. In manslaughter cases involving serious violence, the Court of Appeal has cautiously approved sentencing judges looking to the guidelines for sentencing for serious violent offending set out in R v Taueki for guidance (Taueki v R [2005] 3 NZLR 372 (CA)). That is of limited assistance where the manslaughter involves only minor or moderate violence. The Crown accepts reference to the Taueki principles is inapt in this case, noting the Court of Appeal has previously accepted as much (Iota v R [2013] NZCA 235).

[20]      Given this, it will be necessary to determine a starting point for sentencing in this case having regard to the approach adopted in other similar cases of manslaughter. There is no shortage of “one punch” or “single-punch” manslaughter cases, with starting points ranging from between three and six years’ imprisonment.14

[21]      Given that position  I  need  to  consider  the  particular  circumstances  of  Mr Goffe’s death, and what these disclose about the level of your culpability, or responsibility, for that death.15 It is important to acknowledge at the outset that while the extent of the harm could not have been higher given it resulted in Mr Goffe’s death, I accept you had no intention of killing Mr Goffe, notwithstanding your actions caused his death. As a result my primary focus is on the intentional element of your conduct that night.16 Justice Gault, passing sentence in another recent case of this type, reviewed the case law and identified the following factors as being particularly relevant in this respect, namely:17

(a)the amount of force that was intended to be inflicted, where it was aimed, and where it landed;

(b)the conduct of the victim, in terms of whether there was provocation and, if so, how serious it was and the distance in time from any provocation to the fatal blow; and

(c)what the defendant did after landing the punch and, most importantly, whether they stayed to offer assistance.

14     Blacker v R [2019] NZCA 232 at [27], citing Everett v R [2019] NZCA 68 at [21], citing in turn

R v Pene [2010] NZCA 387 and Murray v R [2013] NZCA 177.

15     R v Wickliffe [1987] 1 NZLR 55 (CA) at 62; Cooper v R [2014] NZCA 275 at [9]. See also R v Waipuka [2013] NZHC 221 at [37].

16     R v Leuta [2002] 1 NZLR 215 at [62]-[63].

17     R v Nepia [2019] NZHC 1932 at [21].

[22]Applying these matters:

(a)As to the extent of force intended to be used, it can fairly be inferred from your comment to Police that you were not surprised the blow had knocked out Mr Goffe. That suggests you intended to use at least a moderate degree of force that was sufficient to cause Mr Goffe to fall to the ground. There is also no suggestion you intended to do other than hit Mr Goffe in the head. As Mr Perkins noted, assaults to the head are recognised as more serious than assaults to other parts of the body, given the additional risk of grave harm.

(b)As to the second matter, I agree with the Crown’s submissions that there was no provocation to speak of on the part of Mr Goffe. You and your friends had unlawfully entered his property. You were the instigators and the prime aggressors. Mr Goffe and his family had sought to diffuse the situation, and Mr Goffe then, quite reasonably, sought to take you to task about coming onto his property. Nothing in Mr Goffe’s conduct in any way reduces your culpability, as Mr Goffe did not do anything that a reasonable person could not have endured without responding with violence.18

(c)As to your conduct after you hit Mr Goffe, while you did not offer assistance it is clear that you did not go far away and did not attempt to flee the scene. It is perhaps fair to say, as recorded in the Crown submissions, that you were seemed somewhat indifferent to Mr Goffe’s plight, but I accept that your presence may very well have not been welcome had you attempted to offer assistance.

[23]      In addition to these factors, it is also very relevant that immediately before the offending, you had been trespassing in the yard outside Mr Goffe’s dwelling house,19 and you were plainly under the influence of alcohol at the time of the offending.20

18     Taueki v R [2005] 3 NZLR 372 at [32(a)].

19     Section 9(1)(d).

20     Sentencing Act 2002, s 9(3).

[24]      I have considered these various factors against the cases that have been referred to me by counsel, specifically R v Kokiri,21 R v Needham,22 R v Palmer,23 R v Larson24 and R v Nepia.25 A summary of these cases is included in the footnotes to the written version of these sentencing notes.

[25]      Having considered these cases against what has happened in this case, it is clear the level of force used here is most like that in Palmer, Nepia, and Kokiri, having involved a single blow to the head that caused the victim to fall back and strike his head, rather than there having been multiple blows struck by the offender, as in Needham or Larson. This case is more serious than Kokiri, Needham and Nepia, in the sense that there was no element of provocation on the part of the deceased. As

21     R v Kokiri [2019] NZHC 501. The 17-year-old offender went into a supermarket with three others and committed theft. A store guard, the victim, confronted him. An altercation ensued, the offender throwing the first punch. Having broken free from the guard’s grasp, Mr Kokiri tried to walk away, but the guard followed. Mr Kokiri turned back and punched the guard in the side of the head. The victim fell and hit his head on the pavement, dying. Justice Jagose, noting Mr Kokiri had run away, changed clothes, then boasted about his actions, adopted a starting point of 3 years’ 9 months’ imprisonment.

22     R v Needham HC Wellington CRI-2010-085-5780, 14 December 2010. Mr Needham’s associates

became involved in an argument with the deceased at a house party. Mr Needham reignited the argument outside the house once it had subsided, beginning to taunt the deceased. Mr Needham was bigger, stronger, fitter, and younger than the deceased. After the deceased swung at Mr Needham, he hit him with a straight jab to the mouth and then a left hook, knocking out three of the deceased’s teeth and rendering the deceased unconscious. Despite Mr Needham’s attempts to offer assistance, the deceased later died. Justice Williams adopted a starting point of 3 years’ 6 months’ imprisonment, noting Mr Needham’s attempts to help, but also that there were two blows and the comparative vulnerability of the deceased.

23     Palmer v R [2016] NZCA 541. A starting point of four years’ imprisonment was not challenged

on appeal. Mr Palmer, aged 16, was intoxicated at a party when he encountered the deceased, who had entered into an altercation with one of his associates. The deceased tried to calm the situation, but Mr Palmer and his associates continued to act aggressively. Mr Palmer, after one of his associates had already punched the deceased, hit the deceased in the head with considerable force, causing him to fall back and hit his head. He died some days later from head injuries similar to Mr Goffe’s.

24 R v Larson [2020] NZHC 327. The offender, aged 20, walked onto the road in front of the victim’s vehicle. The victim exited the vehicle and approached the offender with his arms by his side. Mr Larson attempted to punch the deceased but missed, causing the deceased to attempt to punch back. One of Mr Larson’s associates attempted to intervene, but the deceased continued to walk towards Mr Larson, the deceased’s hands remaining at his sides. Mr Larson punched the deceased twice in the face, causing him to immediately lose consciousness, fall backwards, and hit his head. Justice Gordon highlighted that Mr Larson was the original aggressor, that the deceased had not sought to escalate matters, the fact the violence was moderate in degree, and that Mr Larson had not sought to help the victim but had boasted about his actions to bystanders. Her Honour arrived at a starting point of four years’ imprisonment

25 R v Nepia [2019] NZHC 1932. Mr Nepia and the deceased were both out walking their dogs. When they encountered each other, their dogs got into a fight. The deceased kicked Mr Nepia’s dogs. Mr Nepia became furious and punched the deceased in the face, causing him to fall and hit his head on the pavement. Mr Nepia walked away and the deceased later died in hospital. Mr Nepia accepted a sentence indication with a starting point of three years’ six months’ imprisonment.

with the victim in Palmer, Mr Goffe had sought to de-escalate the situation and presented no threat to you whatsoever. The case is also more serious than Needham because of your failure to offer any assistance to the deceased, albeit as I have noted, your actions were less callow than those of the offenders in Kokiri or Larson.

[26]      Overall, I agree with the Crown that having regard to these, what we call comparator cases, the most similar case is Palmer, in terms of the amount of force used, the extent of harm done, the lack of provocation, and the fact that you were the prime aggressor. There are differences, and I observe is that you were ultimately the only participant in the assault against Mr Goffe, while in Palmer there were at least two assailants. But as in Palmer you  were  considerably  younger  and fitter than  Mr Goffe as well.

[27]      Considering all of these various factors, I agree with the Crown that a starting point of four year’s imprisonment is appropriate.

Personal factors

[28]      I now turn to consider the personal factors relevant to you, that increase or reduce your responsibility.

[29]      It is common ground that there are no aggravating features personal to you that require any uplift.

[30]      As to potential discounts, I have had the chance to consider a number of reports that have been provided to me to which counsel have referred in their submissions this morning, and in the written submissions that they have presented.   These include a   s 27 cultural report (which has given me a lot of information about your background), reports regarding various programmes that you have attended, and two psychiatric reports. I have also had the benefit of hearing you read your letter that you addressed to the Goffe family this morning, and hearing from your mum today as well.

[31]      From these different sources counsel have identified your youth, efforts that you have made to rehabilitate yourself already and further rehabilitative potential, the extent of your remorse and your guilty plea as matters that I should take into account

when assessing what discounts should be given. Counsel are also in agreement that it is necessary to make some allowance for the time that you have spent on restrictive conditions of electronically monitored (“EM”) bail pending your sentence today.26

[32]I address each of these points in turn.

Youth, rehabilitative potential, rehabilitative efforts to date and remorse

[33]      As the Crown accepts, a significant reduction from the starting point is necessary to reflect the fact that you were 17 at the time of the offending. The Court of Appeal has recognised that an offender’s youth is relevant to sentencing in that young people have not completed their neurological development, and so are more susceptible to peer pressure, exercise comparatively poorer judgment than adults, and are more likely to act impulsively.27 Your behaviour on the night of Mr Goffe’s death was plainly impacted by your youth in each of these ways. This offending can truly be described, as Toogood J said of similar offending in case called Feleti, as having been “a single, spontaneous, wanton act illustrating the impulsivity of youth”.28 In these ways, as the Court of Appeal has recognised, your actions are less culpable than would have been the case if you had been an adult offender, remembering always the devastating consequences of those actions.29

[34]      The Crown submissions noted that in other cases of one-punch and similarly impulsive manslaughters by offenders aged between 16 and 20, discrete discounts of 20 per cent for youth have been allowed,30 and youth has been stated to be a factor recognised in overall discounts of 25 per cent acknowledging youth, previous good character, rehabilitative potential, remorse, and other similar factors.31

26 In addition to these matters I note that counsel are agreed that Mr Unasa’s weak language abilities, and issues with communication, memory, and attention do not of themselves justify a discrete discount but are more appropriately considered in evaluating the significance of Mr Unasa’s background circumstances. I agree that is the most appropriate approach.

27     Churchward v R [2011] NZCA 531 at [76]-[92]. See also Sentencing Act 9(2)(a).

28     R v Feleti [2019] NZHC 94 at [50].

29     Powhare v R [2016] NZCA 268 at [96].

30     R v Larson [2020] NZHC 237; R v Feleti [2019] NZHC 94.

31     R v Faletolu [2014] NZHC 2218; R v Kokiri [2019] NZHC 501; and Palmer v R [2016] NZCA 541.

[35]      As this “bundling” of discounts recognises, youth is also recognised as relevant to sentencing because where imprisonment is likely a young person’s incomplete brain development will impact more severely on them than on other offenders, and to compromise what is generally a greater capacity for rehabilitation and going on to lead otherwise good lives.32 This is especially relevant where, as here, an offender has no significant criminal record.33

[36]      It is also important to recognise that you have already taken some steps to address your drinking problem which clearly played a significant role in the events of 13 February 2020.

[37]      I accept Ms Ley’s submission that you agree alcohol use was a key factor underlying the offending, as was your difficulty managing your anger that night, and that you have undertaken and completed a drug and alcohol counselling program, as well as attending anger management and resilience training.

[38]      More broadly, I note that you have engaged in and completed a cultural programme to reconnect you to your Samoan heritage, which you appear to have fully engaged and have found to be a useful resource to assist you as you move forward with your life. You have also taken the opportunity to acquire some life skills, you have obtained a driver’s licence and undertaken some budgeting training. These are also encouraging and important steps towards rehabilitation. More importantly it is evidence that you have accepted that there is a need to change your approach to life.

[39]      I also note that, while restorative justice has not been able to proceed in this case, you were still willing to meet with Mr Goffe’s family to give them the opportunity to convey directly the loss your actions have caused. While that conference did not proceed, and I can certainly understand why this might be so given the rawness of the loss the Goffe family has suffered, your willingness to engage is a credit to you, as was your willingness to address the Goffe family this morning in

32 Churchward v R [2011] NZCA 531 at [76]-[92].

33 The Crown submissions note that Mr Unasa has previously been before the Youth Court, but appears to accept, properly, that as he was discharged under s 282 of the Oranga Tamariki Act 1989, that charge is to be deemed to never have been filed, such that it cannot be properly taken into account in sentencing.

Court. Notwithstanding the understandable anger that Mrs Goffe still feels, which  Mr Perkins expressed this morning, I accept that what you said today, coupled with your earlier willingness to go to restorative justice, does corroborate and support the remorse that you have previously expressed and referred to in the reports before me. I accept Ms Leys submission that overall you are genuinely remorseful, but have struggled to articulate this given your acknowledged difficulties with communication.

[40]      Taking these various matters into account I consider a total discount of 25 per cent from the starting point is appropriate for youth, rehabilitative efforts to date and further potential, and remorse.

Guilty plea

[41]      In addition to these matters, there is no dispute that you pleaded guilty at a very early stage and I agree with counsel that you are entitled to the maximum guilty plea discount of 25 per cent. 34

Time spent on restrictive EM bail conditions

[42]      There is likewise no dispute it is necessary to make some allowance for the time you have spent on restrictive EM bail, including a 24-hour curfew,  between    29 April 2020 and today, during which 7-month period there have been no breaches of bail.35 Having regard to the authorities I agree with counsel that in this case a discrete discount of three months is consistent with those earlier cases although it is difficult to see the justification for not otherwise recognising the two months’ spent in custody and the actual time spend on EM bail which after all is no different in conception from home detention. This three-month reduction is to be applied after the discounts already awarded.36

34     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45]-[47].

35     See Rangi v R [2014] NZCA 524 at [10].

36     Moses v R [2020] NZCA 296 at [48].

Home Detention

[43]      That produces a final sentence of 21 months’ imprisonment. As this is a short- term sentence of imprisonment37 a sentence of home detention can be considered.38

[44]      When considering whether to impose a sentence of home detention instead of imprisonment, I am required to impose the least restrictive sentence that is appropriate39 and must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.40 You are assessed as having a low risk of reoffending and there is therefore no suggestion that imprisonment is required so as to further protect the community.41

[45]      Likewise, the cases confirm that a sentence of home detention is in itself a serious punishment, with a significant element of deterrence.

[46]      In this case as you have heard, the Crown is not opposed in principle to the imposition of home detention for reasons that were detailed in the written submissions that were filed. As Mr Perkins noted, ultimately the decision is for me to make. For reasons that I have already set out in some detail, I agree that given your age, your lack of previous offending, your compliance with the conditions of bail, the steps you have taken to rehabilitate yourself and my acceptance that you are genuinely remorseful, a sentence of home detention would meet the sentencing purposes and principles which apply to this case, and I also accept that it is likely any term of imprisonment imposed would serve no rehabilitative purpose and indeed is more likely to make things worse.42

37     Sentencing Act 2002, s 4 definition of “short-term sentence”; Parole Act 2002, s 4 definition of “short-term sentence”.

38     Sentencing Act 2002, s 15A(1)(b).

39     Section 8(g).

40     Section 16(1).

41     As was said in R v D CA 221/95, 5 September 1995 at 5.

42 Although there has been a split in the approach to home detention in the cases to which I have previously referred, I do not find comparison to said cases particularly useful as the appropriateness of home detention is a factual matter that will turn on the circumstances of the offending and the offender. For completeness I note that in general these cases where home detention was refused were considerably older than when it was granted, noting Needham was decided in 2011 and Palmer prior to 2016. In Larson and Kokiri, home detention was imposed rather than imprisonment. Gordon and Jagose JJ respectively being encouraged by those offenders’ demonstrated desire to rehabilitate. Conversely, in Palmer, and Needham, home detention was

[47]      If imprisonment had been imposed for a period of twenty-one months you would have automatically been released on parole after 10 and a half months. As home detention does not provide for an early release date it is therefore customary to halve the period to be spent on home detention to reflect that. Although this is not a hard and fast rule, it is a factor I am to consider, together with the ability of the sentence to meet the principles and purposes I identified earlier. In this case, and noting my earlier comments about the total time that you have spent in custody and on EM bail, in addition to the period that I have given a discrete discount for, I am of the view that a final sentence of 10 and a half months’ home detention is appropriate.

Sentence

[48]This brings me to the end of the sentencing exercise. Mr Unasa, please stand.

[49]      For the manslaughter of Phillip Goffe you are sentenced to ten and a half months’ home detention at the address and on the conditions set out in the Community Corrections Services addendum to the Provision of Advice to the Courts Report dated 24 November 2020.

[50]You may now stand down.

Powell J

not imposed. This, in Needham, was because of Williams J’s concern to hold Mr Needham responsible for his attack on a comparatively vulnerable victim and recognise the harm caused by the loss of the victim’s life. In Palmer, this was because Mr Palmer’s offending was seen to be a result of his substance use issues, his not having taken steps towards rehabilitation, and the alternative sentence not being so long that it would irreversibly harm his rehabilitation.