[1] Nicho Waipuka, you appear today for sentence for the manslaughter of Phillip Cottrell. You committed this crime on Boulcott Street not long after dawn on the morning of 10 December 2011.

[2] I will begin by spending some time on the facts. I need to make some findings which have an important bearing on your sentence.

[3] You lived in the Hutt at the time, and you had come to town with your co- accused, Manuel Robinson, about 10.00 pm the evening before. You were somewhat intoxicated and looking for fights. You boasted to friends that you were keen to knock someone out. I do not consider that that was an idle statement, as an incident with a couple at the James Cook Hotel evening demonstrates. You went to
an apartment on the Terrace and there spent some time with two girls before they

R v WAIPUKA HC WN CRI-2011-085-6023 [15 February 2013]

required you to leave the apartment while they went into town. That was about

4.40 am. You walked along Lambton Quay towards Courtenay Place. You tried three times to withdraw ever-decreasing sums of money from your own bank account at an ATM. All of these attempts failed. The last was for just $20.

[4] You then walked back towards The Terrace to meet up with the girls when they returned to the apartment. Your route took you up the western side of Boulcott Street.

[5] Mr Cottrell was a journalist with Radio New Zealand, whose premises are on The Terrace. He finished a night shift at about 5.30 am and began to walk home, down the eastern side of Boulcott Street. He carried two wallets. In one of them he had placed $80 that a workmate had just paid him for some duty free goods that he had purchased for her on a recent trip.

[6] As you walked up Boulcott Street you encountered Phillip Barton, who was going to work. He was crossing the street. Seeing him, you issued a challenge, shouting “what the fuck are you looking at”. You wanted a pretext to attack him. Fortunately for him, he was some distance behind you, further down the street, and he chose not to respond.

[7] It must have been only a matter of seconds later that you encountered Mr Cottrell as he passed you on the other side of the street. Unquestionably you challenged him. There are suggestions that he may have replied, although you conceded at trial that he did nothing to provoke you. You crossed the street and you attacked him.

[8] Much of Boulcott Street is covered by CCTV cameras associated with business premises. The scene of the attack is 33 metres from the field of view…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Waipuka

Details

AGLC: R v Waipuka [2013] NZHC 221
Case: [2013] NZHC 221
Decision Date: 15 February 2013

CaseChat Overview and Summary

Nicho Waipuka was convicted of manslaughter following a violent attack on Phillip Cottrell, who died from his injuries. The case involved significant legal issues concerning the nature of Waipuka's culpability, the severity of his actions, and appropriate sentencing. The court needed to determine the extent of Waipuka's intent and whether his actions were premeditated, as well as assessing the impact of his personal circumstances and the principles of sentencing for manslaughter.

The High Court of New Zealand, in its sentencing notes, thoroughly examined the facts of the case, including Waipuka's prior conduct, his state of mind during the attack, and the medical evidence regarding the cause of Mr Cottrell's death. The court concluded that Waipuka's attack was both premeditated and motivated by both recreational violence and robbery. Waipuka's high culpability was underscored by his lack of remorse, his efforts to evade capture, and his extensive criminal history. The court also considered the devastating impact on Mr Cottrell's family and the broader community.

In determining the appropriate sentence, the court explored the possibility of imposing life imprisonment, a rare sentence for manslaughter. However, after weighing factors such as Waipuka's age at the time of the offence, the possibility of rehabilitation, and his prior offer to plead guilty to manslaughter, the court decided on a fixed term of imprisonment. The court imposed a sentence of 12 years and 10 months, with a minimum non-parole period of eight and a half years, to ensure public protection and to adequately denounce the crime.

Orders