R v Whaanga

[2020] NZHC 1318

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-096-4156

[2020] NZHC 1318

THE QUEEN

v

TANIRAU WHAANGA

Appearances:

G Burston for the Crown

C J Nicholls for Mr Whaanga

Sentencing:

8 June 2020

SENTENCING REMARKS OF GRICE J

Overview

[1]                   Mr Whaanga you have pleaded guilty to one charge of manslaughter by causing death by an unlawful act.¹ I am now going to sentence you on that charge.

[2]                   This will be transcribed as I go and you will receive a copy of the sentencing notes which will be edited but otherwise substantially the same.

1      Crimes Act 1961, ss 160(2)(a), 171 and 177. Category 4 offence carrying a maximum penalty of life imprisonment. These sentencing remarks were delivered orally on 8 June 2020. The written form has been edited and footnoted before distribution.

R v WHAANGA [2020] NZHC 1318 [8 June 2020]

[3]                   Importantly before I go any further I acknowledge the presence at this hearing of the victim’s family including his wife, his son, daughter and son-in-law and his sister and his mother. I refer to the victim as I go through the sentencing notes and that is out of deference to the privacy of the family and respect for their significant loss. I grant a final order of name suppression of the victim’s name.

[4]                   Mr Whaanga you accepted your guilt on the charge and the facts as outlined. I also viewed the CCTV footage this morning. You have been issued with a first strike warning under s 86B of Sentencing Act 2002 on 3 February 2020. That underscores the very serious nature of the charge that you have pleaded guilty to and the fact that a person’s life was lost through this offending.

[5]                   The law requires me to consider a number of factors before I determine a final sentence. I first consider what happened that day in the carpark, and the facts and the charges that were laid based on those facts.

[6]                   I look at the surrounding circumstances and consider whether those circumstances add to or aggravate the offending or diminish or mitigate the seriousness of the offending. This allows me to fix this offending and the sentence compared to other cases. But no case is ever the same. On the basis of those considerations I then fix a sentence starting point. I then go on to consider matters that are personal to you Mr Whaanga. I have heard a great deal of those matters from your counsel, Mr Nicholls, this morning. These matters are put forward to mitigate the sentence or lessen it and sometimes personal factors will aggravate the sentence. I take those into account to reach a final sentence.

[7]                   And as you know I have received submissions both in writing and orally from Mr Burston for the Crown and from Mr Nicholls on your behalf. I have also received a report from the Department of Corrections (a PAC or Corrections report) with relevant material, as well as reports on mental health issues by Dr Barry-Walsh called a s 38 report and a report on cultural issues provided under s 27 of the Sentencing Act (a s 27 report).

[8]                   In addition, as I have noted, I saw the CCTV footage, so I have actually seen what happened.

[9]I now consider what did happen.

Facts

[10]The events played out in a carpark in Lower Hutt on 3 December 2019.

[11]               About 11.30 am on that date the victim drove into the Countdown carpark in Lower Hutt. He had taken the day off to take his elderly mother to several appointments in the day. She was seated in the passenger seat and she requires a wheelchair so a mobility parking permit was displayed on the vehicle’s front window.

[12]               As the victim drove in, you came in one vehicle behind. You were with your partner and your one-year-old child. Mr Whaanga, you had intended to purchase nappies. You tried to do so unsuccessfully at another supermarket which was closer to home for you but it had been out of stock.

[13]               The victim and you drove around the carpark looking each for a vacant carpark. The victim had apparently intended to park in the mobility carparks which are situated near the entrance of the store but both were occupied. So he drove on and saw a vacant “parent’s” park to the right-hand side of the store entrance. He was entitled to park there due to his having the mobility sticker. So he pulled in.

[14]               You came up behind him and stopped briefly behind the victim’s parked car. You leaned forward in your seat to look at the victim’s vehicle as was visible on the CCTV. You then saw a vacant park next to the mobility parks which required a further loop around the carpark to reach. You then parked reasonably quickly after you had seen the victim go into the parent’s carpark.

[15]               You and the victim left your respective cars about the same time. The victim got in and out of his car several times. It is not apparent why but he walked to the supermarket entrance and you followed. It seemed that you yelled at him because he turned around.

[16]               The victim waited for the you to approach. You approached with your arm raised and pointing at the victim’s vehicle. Then we see you talking to the victim and the victim using hand gestures. He was pointing toward the mobility parks and was apparently explaining why he had parked in that carpark. The evidence suggests that the victim was trying to calm you down and explain why he had used the carpark. A witness overheard him mention his mother.

[17]               You closed the space between you and the victim. The victim stepped back and went to turn away. You talked for a few more seconds before you stepped back and you headbutted him, thrusting the weight of your body behind it because he immediately dropped to the floor. The back of his skull hit the ground with great force. While it is difficult to see clearly, your head made contact. It appeared the victim was knocked unconscious and was unable to brace himself for the fall. He fell on the concrete floor.

[18]               You just walked in to the supermarket. You briefly turned to see him lying on the floor but did not remain to help him. There was some suggestion that you had asked a staff member about first aid but that does not appear to be borne out by the evidence.

[19]               Members of the public and an off-duty emergency department doctor performed first aid on the victim until the ambulance arrived. He was unresponsive and suffered seizures.

[20]               You walked out of the supermarket about two minutes after headbutting the victim. You went to your car, started your vehicle and backed out but a taxi blocked your path. The taxi driver said that you told him you were going to go to the police station and to your credit you took no further steps to leave the scene. You stayed there and after some time you went and knelt beside the victim.

[21]               Some of the witnesses confirm that you immediately took the blame and said it was your fault. You seemed rather dazed and concerned about your wife and child in the car. I do accept that you stayed around but there was no evidence of your immediate assistance. You left him on the ground and walked straight into the store.

[22]               The victim never regained consciousness. He sustained fractures to his skull and was taken to hospital. At 11 pm the following day his life support was terminated and he died due to the injuries sustained in the assault.

[23]               You pleaded guilty at the first opportunity on 3 February 2020 when you were convicted and given the first strike warning.

Defence submissions on facts

[24]               Mr Nicholls, for you, suggested there were additional matters relevant to the offending. However I have seen the CCTV footage and it is clear that while, there was some confusion surrounding the incident, the victim did nothing to provoke that attack. You gave various explanations for your response particularly after the attack. You indicated there had been a heated exchange between you and the victim. This is mentioned in particular in the report of Dr Barry-Walsh. You also said that had told someone to get some first aid when you went into the store and that you knelt to apologise and talked to the victim saying that it was all “on you.”

[25]               That is partly true but by the time you started to show any sort of concern for the victim minutes had passed. You did not offer any assistance at the time.

[26]               There is no evidence to show that the victim was responsible for the heated exchange. It is apparent there was no provocation or fault by the victim.

Principles and purposes of sentencing

[27]               The Sentencing Act requires me to take into account the purposes and principles of sentencing which are set out in the Act.

[28]               The relevant purposes include accountability, denunciation, responsibility and deterrence.2 You must be held responsible for or accountable for the harm caused by your offending to the victim and to the community.

2      Sentencing Act 2002, ss 7(1)(a), (b), (e) and (f).

[29]               However, any sentence imposed must be consistent with sentences imposed in similar factual circumstances.3

[30]               I must also impose the least restrictive outcome that is appropriate in the circumstances in accordance with the hierarchy of sentences as is set out in the Sentencing Act.4

Approaches to manslaughter sentencing

[31]               There are a wide variety of circumstances which apply to manslaughter cases. Vastly different levels of blame can be put on a defendant in these sorts of cases. There is no standard guidance or stepping stones which apply to sentencing in a manslaughter case. Sentences widely vary and the Courts have referred to this in a number of cases such as Edwards and Leuta.5

[32]               In this case there was no preceding altercation or fight with the victim. It was down to just one blow delivered by you in anger. I must compare as far as possible cases which may have similarities in order to reach a fair sentence. And, as I said, no case is exactly the same. Counsel for the Crown and Mr Nicholls for you, have referred me to a number of cases. I note that the maximum penalty possible is life imprisonment.

Starting point

[33]               The Crown submitted that the range of starting points for a case such as this was from five and a half years’ imprisonment to six years’ and suggested that this case was the upper end of that range.6 Mr Nicholls suggested a starting point of somewhere around four and a half to five years’ imprisonment.

3      Section 8(e).

4      Section 8(g).

5      R v Edwards [2005] 2 NZLR 709 (CA) at [14] citing R v Leuta [2002] 1 NZLR 215 (CA) at [49]- [59].

6 Defence submissions at [22].

[34]               Mr Burston for the Crown pointed out that so called “one punch manslaughter” cases generally attract starting points of between five to six years’ imprisonment.7 He referred in particular to the case of Everett v R8 where the Court of Appeal noted that starting points in such cases are typically five to six years depending on the circumstances. The Crown contrasted that with cases where there was little blame attributable to the defendant where sentences were in the range of three to four years’.

Mr Burston submitted that this is not such a case.9

[35]               Four comparable cases were advanced by the Crown each involving a single charge of manslaughter:

(a)Murray v R:10 there was a verbal altercation or fight between the victim and the defendant and they both participated in that before a fatal blow ended with the defendant delivering a single punch to the victim who was left unconscious and fell back, hitting his head on the pavement which led to his death. The defendant and his associates left the scene. The Court in that case adopted a starting point of five years.

(b)Palmer v R:11 the defendant was young and intoxicated on drugs including LSD and cannabis. The defendant there saw an altercation between the victim and one of the defendant’s associates. The victim left to go a nearby store and the defendant and his associates followed the victim. The associate punched the victim. Then the defendant punched the victim again with considerable force. The victim fell backwards and struck his head and the defendant and his associates left. The victim later died from his injuries. The Court there adopted a starting point of four years which was not challenged on appeal.

7      Everett v R [2019] NZCA 68 at [21]. I note this case is in the context of domestic violence. The Court of Appeal held that a starting point of six to seven years’ imprisonment was not manifestly excessive. The Crown referred also to R v Pene [2010] NZCA 387 at [11] and Murray v R [2013] NZCA 177 at [15] and [22]-[23].

8      Everett v R above n 7.

9      R v Gray [2019] NZHC 2364 at [8] and [9].

10 Murray v R, above n 7, at [15] and [22].

11 Palmer v R [2016] NZCA 541.

(c)R v Faletolu:12 a fight occurred outside a function that involved the victim. The defendant saw and ran toward the fight, jumped on the bonnet of a car and either kneed or kicked the victim in the head. The victim fell to the footpath unconscious and later died from a blunt force to the head. The defendant attempted to leave but was detained. The Court there adopted five and a half years’ imprisonment as a starting point, with the seriousness of the running and jumping highlighted as taking it beyond a single punch and as an aggravating factor.13 That case also involved a fight earlier which had involved the victim.

(d)Ioata v R:14 after a “tussle” between the victim, the defendant and his associates as the victim walked away, the defendant came up behind the victim and punched the victim in the side of the head. He fell, likely unconscious and did not brace for the fall, struck his head on the road and the defendant and his associates fled. The victim was unconscious and died later in hospital. A five-year starting point was adopted and upheld on appeal in that case.

[36]I now turn to consider the circumstances of this case.

Aggravating factors

Unprovoked

[37]               The Crown submits that this was an unprovoked attack, launched without warning, that the blow was to the victim’s head which is a vulnerable part of the body and force was used that rendered the victim probably unconscious. He was unable to brace his fall. He took no evasive action.

[38]               Mr Whaanga you had pursued the victim. The Crown submits the injury was intended and you must have intended the defendant to suffer a serious injury to the

12     R v Faletolu [2014] NZHC 2218.

13     At [27] and [34].

14     Ioata v R [2013] NZCA 235.

face. That seems apparent from the force of that headbutt and what it did to the defendant.

[39]               In response Mr Nicholls says “well the foreseeable consequences of a headbutt are not always clear” and in written submissions refers to common significant overreaction in the form of road rage - which this might be viewed as.

[40]               It may well be that this might have been some sort of response akin to road rage or righteous indignation. But it was totally misplaced and is no excuse. The victim had done nothing wrong. Nothing to provoke you. You were driven by what seems to be a haze of anger that did not dissipate over the period of time that it took for you to find a park, park your car and approach the victim. As I said, road rage is no excuse or mitigation at all. Nor is it any excuse, as was submitted on your behalf, that the victim was in the wrong place at the wrong time. That does nothing to mitigate this offending.

[41]               Also on your behalf it was said there was “no evidence” that you intended to cause serious or life threatening injury because there was minimal movement. But it is very clear it was a well-directed blow and the only consequence of that could have been serious injury. It was probably more serious than you had ever anticipated but it was not out of the realms of possibility. You approached the victim in a determined manner to have it out with him and you would not let it go even though he was trying to placate you in turning away from you. You delivered the fatal blow just as he was doing that.

[42]               I accept the Crown’s submission that you must have or should have appreciated the risk that the blow might render the victim unconscious and the victim would be unable to break his fall so inevitably would hit the pavement with the full force of his weight. This would cause serious injuries. Sadly many “one-punch” cases that come before the Courts do have that consequence. Justice Kós in a High Court decision noted that:15

[36]     Too many people seem to think that we live in a cartoon world where we can hit someone, or drop them to the ground, and they just get up, dust

15     R v King [2012] NZHC 3072.

themselves off and carry on. But all too often they don’t get up, and never do again. The human skull is a remarkably fragile instrument. It is high time that that fact is more widely appreciated than it is.

[43]               Your actions following the blow do not lend you any credit. You did not help the victim. You knew he had dropped to the ground. You had an opportunity to stop when you walked out of the store two minutes later.

[44]               Mr Nicholls on your behalf notes that the lack of assistance is, of itself, not an aggravating factor under s 9(1) of the Sentencing Act, although it is a mitigating factor for someone to offer assistance. In this case no assistance was offered. I do accept that you did stay at the scene. Whether you were forced to remain at the scene or not is not entirely clear. However, you did and were seen to, go up and express your concern for the victim finally.

Victim impact

[45]               As Mr Burston submitted there is considerable, inevitable and never ending harm to the family of the victim. You heard the victim impact statements from the victim’s mother and wife read out. I cannot possibly go anywhere near expressing the impact of the loss of a loved husband, father, brother and son. The victim impact statements spoke for themselves.

[46]               The victim’s mother said he was a good man, a good husband, a good father, a great son and it is so sad he died this way. She expresses her regret that it was not her that died rather than him.

[47]               The victim’s wife notes they had been together for nearly 40 years, that she is totally empty and lonely and that the victim’s parents have a lost a son, his sister a brother, his niece and nephews an uncle, his children a father and herself a husband and soul mate. So many lives have been affected by this one act. I think that says it all.

Seriousness

[48]               In relation to the seriousness of this offending I have compared it to the relevant cases that have been referred to me by the Crown and Mr Nicholls. The Crown said the offending was more serious than in Murray and Ioata to which I have referred – including in those, the nature of the blow, the lack of assistance, the attempt to leave the scene and the unpredictable but significant escalation from what was a verbal disagreement. The Crown also points to the lack of provocation which was an important point in the present offending.

[49]               Both Mr Nicholls and the Crown refer to R v Faletolu. The Crown submits the offending was more serious here than in that case. Mr Nicholls disagrees and noted in that case the premeditation and exaggerated violence of jumping onto a car bonnet increased the elevation and force of the blow making it more serious. As I said earlier it is impossible to make an exact comparison with a case.

[50]               In considering the starting point I take into account the aggravating factors: the attack was totally unprovoked; occurred in the middle of the day in a busy carpark and while the victim was trying to tell you why he had parked in that carpark. It seemed that just increased your rage. As I have said, there is no excuse particularly when you had made it your business to have it out with the victim. This was not part of an altercation such as in the earlier cases mentioned. It was not part of an ongoing series of circumstances. This was totally out of the blue. The single blow was forceful. It was unanticipated attack to the head.

[51]               Finally, there was no assistance rendered by you. You just left the victim on the ground and walked into the store.

[52]               In my view this is more serious than the cases which involve blows delivered following altercations in which the victim has been involved. This was mere rage triggered by your view that the victim had wrongly taken a carpark that you should have had and despite the fact that you managed to get a carpark seconds later. The confrontation was unprovoked and serious. I do not accept there was any blame to be laid at the feet of the victim. Nor is it justified by giving it the epithet of road rage or saying the victim was in the wrong place. It was entirely unprovoked.

[53]               I consider Mr Nicholl’s suggestion of a starting point of four and a half to five years is too low. That does not reflect the seriousness of this offending.

[54]I fix a starting point of five and a half years’ imprisonment in this case.

[55]I now turn to other factors personal to you.

Age and rehabilitation

[56]               The first factor is your age and the prospect of rehabilitation. You were 23 years old at the time of this offending.

[57]               In R v Maka,16 a 10 per cent discount was given for age (in that case the defendant was 23 at the time of the offending) and the prospect of rehabilitation, noting in that case that the defendant had “significant family support”. The offending was not impulsive nor was it due to “adolescent excess”. The Judge noted that those features were generally associated with youth discounts but nevertheless he considered a 10 per cent discount was appropriate. Also in that case the Corrections report noted the defendant posed a high risk of re-offending but the Judge nevertheless allowed the discount. The defendant faced four charges: assault with a weapon; assault with intent to injure; common assault; and manslaughter.

[58]               On the prospects of rehabilitation Mr Nicholls went to some length to tell me what help had been sought and the failures of the system. You had sought assistance through your general practitioner and had received some referrals. It appears you did not meet the criteria for some of the counselling offered and the referrals were therefore unsuccessful. There are conflicting views as to why other interventions did not occur. You were also referred to the Te Ihu Waka Tikanga Māori programme while in intensive supervision which you were serving at the time of this offence. You were declined entry however due to threats of violence to a probation officer. The report states the you showed a disinclination to engage with that programme in general.

16     R v Maka [2020] NZHC 1161.

[59]               Mr Nicholls blamed the system for allowing you to fall through the cracks. He went into some detail going through your GP records and underscoring, he said, your need for help for anger management problems. He also pointed to the problems you had engaging with mental health service providers and considered that an investigation was called for. Mr Nicholls says that you were a walking time bomb just ready to go off.

[60]               I have taken note of those comments and I have considered the comments of the psychiatrist, Dr Barry-Walsh which I will go into more detail later. While they may explain why you have not had treatment, they do not take away from the seriousness of this offending.

[61]               To your credit you did, of your own volition, abstain from alcohol following a serious incident earlier in 2019. Alcohol was not a factor here. The self-imposition  of abstinence from alcohol indicates some hope for your determination to engage in rehabilitation to try and avoid this sort of behaviour in the future. The Corrections report says you are at low risk for substance abuse.

[62]               Dr Barry-Walsh, in his report, also notes that you say you are committed to engage in whatever intervention is necessary to ensure you do not act in the same way again. In Dr Barry-Walsh’s opinion, that commitment may suggest you could do well with assessment and engagement with the appropriate psychological interventions.

[63]               Like the defendant in R v Maka, you have a wide support network. In particular this includes support from your parents, your partner, your partner’s family and your extended whānau.

[64]               You are in a three-year relationship with your partner. You have an 18-month old son and you are also expecting your second child later this year. Your partner noted that the time you have spent in remand in custody has been “really hard” for her and that you recognises the practical, emotional and financial hardships that you alone have caused your family due to your offending and imprisonment. But I accept that the family support network is positive and in a position to be responsive and assist in your rehabilitation.

[65]               Therefore, I conclude that while I do not take Mr Nicholls’ wide-ranging submissions on the faults and failures of the system to assist by diminishing the seriousness of this offending, there do seem to be strong prospects for rehabilitation which I will take into account. I also take into account your age. For both of those factors I consider a discount of 10 per cent is appropriate.

Personal criminal history

[66]               You have limited criminal history. The most significant record is a conviction for injuring with intent to injure in December 2017. You were sentenced to six months’ community detention and one year’s intensive supervision with special conditions. This was imposed in February 2019. You were still serving that sentence when this occurred. The Crown seeks no uplift in your sentence but says this is a reflection of your violent nature and could be taken into account. I accept no good character credit is possible.

[67]               The facts of that offending do give rise for some concern. Mr Nicholls submitted that it was due to your father’s influence that you became involved to mete out some punishment to local P dealers. It seems that the offending occurred as part of a home invasion in a vigilante type strategy to rid the neighbourhood of P dealers driven by the fact that your brother had been addicted to P.

[68]               I do not consider it appropriate to factor in those circumstances or that offence in my sentencing today. But it does show some inclination for you to think you have right on your side and can take the law into your own hands. In any event you are not entitled to a discount for good character.

Remorse

[69]               The Supreme Court has held that separate discounts are available for both remorse and a guilty plea.17 A discount for remorse is to recognise genuine remorse ascertained by a “proper and robust evaluation of all the circumstances”.18

17     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

18 At [64].

[70]               In the both s 27 report and the report by Dr Barry-Walsh, you are reported as saying that you feel genuinely sorry for what has happened and for your actions.

[71]               In the s 27 report you said you were “just disgraced by that… it hurts [you]...[you don’t want to] do bad things to good people… that it’s just [not you]”. And today you had prepared and read to the family a letter of remorse and apology for their loss.

[72]               The Corrections report also reflects that you make your “deepest apologies” to the family and that is backed up by an offer to participate in a Restorative Justice Conference. That has not been taken up in the circumstances, the family are not ready to face that. As I also noted you are alive to the fact that your incarceration will have significant effects on your own family. You will not be there to provide the practical, emotional and financial support to your partner and importantly your children.

[73]               I do accept that you are showing some remorse albeit very late and I also take note of the offer to engage in a restorative justice conference and the letter you read out today.

[74]               Although the Corrections report says that your attitude to violence is such that it is unclear if, while you express this remorse, it is really genuine or merely a studied response to the situation in which you find yourself. I have to take it at face value and I do accept there is some remorse but late in the piece.

[75]               I also note that the Corrections report hints that you have tried to shift the blame to not getting the help you needed earlier. It is difficult to know but I have given you some credit for rehabilitation and time will tell whether you do embrace that.

[76]               Therefore, I consider a small discount is appropriate for remorse and a discount of five per cent would appropriately recognise this including your willingness to participate in restorative justice. I now turn to the cultural factors and the s 38 report by Dr Barry-Walsh.

Cultural factors and the s 38 report

[77]               Your counsel has emphasised that you have less resilience than the ordinary person so have been totally unable to manage stress which caused the out of proportion response in the carpark. Mr Nicholls says this is caused by mental health difficulties particularly by childhood experiences with severe bullying.

[78]               The second report by Dr Barry-Walsh prepared for the purposes of this sentencing deals extensively with psychological factors in relation to your past experiences. The s 27 report also covers your experience of bullying which was exacerbated by your inability to participate in strenuous activity due to your serious illness as a child. The reports to some extent overlap so I do discuss them jointly.

[79]               You are Ngāti Rongomaiwahine, affiliated with Mahia. While you did not know your iwi your family has taken the trouble to try and make you alive to your Māori community. Your immediate family is involved with the community, it was involved both back in Mahia and then in Wainuiomata. You also attended Kōhanga Reo. You have had a good upbringing with supportive parents.

[80]               There is some suggestion that you are disconnected from your culture and social norms.

[81]               The s 27 report covers your past, present and future. It does emphasise you being bullied at an early age.

[82]               In Solicitor-General v Heta19 Whata J considered whether such issues, such as the systemic Māori deprivation could be overtly linked to the offender and taken into account in sentencing. Mr Nicholls strongly submitted that I should take into account the general disadvantages you had as a young Māori boy. However linkages must be pointed to as having some causative affect to give any high levels of discounting for cultural affects.20

19 [2018] NZHC 2453.

20 At [65]. Whata J observes that distinct and larger discounts tend to rely on robust evidence of intergenerational systemic deprivation that is causally connected to the offending. In absence of this, if reports are put before the court that refer to the effects of colonisation on Māori communities, that can provide further justification for a cumulative discount that reflects a

[83]               The s 27 report notes the imbalance of your physical, spiritual, family and mental health. It also notes alienation from your whānau home in Mahia and that you are less connected with your ancestral lands, having been raised in a different Māori community. It notes that your family has lost their land back in Mahia.

[84]               It also points out that your emotional and physical well-being was undermined by bullying both verbal and physical in nature. And, as I have said, this overlaps with the s 38 report which repeats how bullying from a young age led to compensatory aggression by you.

[85]               There were high levels of concern from your general practitioner. Dr Barry- Walsh is of the opinion that the difficulties that you faced as a child have some direct relevance to offending. He advanced a diagnosis of post-traumatic stress disorder (PTSD) with symptoms including ruminations and intrusive memories from past incidents. He also indicated there were suggestions of a mood disorder. Nevertheless, the report does not put it any higher than that. It makes no diagnosis of any significant psychological or mental illness. Instead, Dr Barry-Walsh suggests that it is best to conceptualise your difficulties with anger as arising from childhood experiences.

[86]               The conclusion that Mr Nicholls on your behalf seeks I draw from that material is that the defendant suffers from “diminished mental capacity, as a result of having post-traumatic stress disorder and possible mood disorder but is prepared to undertake treatment” but that you are prepared to undertake treatment and this is put forward as a mitigating factor under s 9(2)(e).

[87]               I accept that there is a background of bullying and ill-health and this may have triggered your over compensation by resorting to aggression quickly and rage which you cannot self-manage. However you cannot be excused by that. You point to the stress caused by events leading up to the delivery of the fatal blow. You say there had been no nappies at the previous supermarket, you had to drive from Wainuiomata to Lower Hutt and there were no carparks. The stress was growing fuelled by indignation when your carpark was taken. However, you have to bear responsibility for that. You

defendant’s diminished relative culpability.

cannot blame it on everybody else nor can the responsibility be placed on an adverse mental health condition.

[88]               However, I do accept that there are some factors that I can take into account. The reports suggest a lower than usual tolerance for stress and ability to control yourself – it is not however a disabling mental condition. In this case the triggering action – the loss of the carpark – was minor. You had time to manage your anger but instead made a studied approach to the victim.

[89]               Therefore, some small discount for your past difficulties and lack of resilience should be allowed as well as some general allowance in relation to your cultural alienation. But these are only very minor. Together I consider a five per cent discount is appropriate and that of course is in the context of the discount I have allowed for the prospects of rehabilitation, your youth and your keenness to fix your problems.

Guilty Plea

[90]               The maximum  discount  available  for  an  early  guilty  plea  is  generally  25 percent.21 I accept, as does the Crown, that you did enter a guilty plea at the first available opportunity and therefore you should be given the full credit of a 25 per cent discount.

[91]I turn to my final determination.

Result

[92]               Nothing will ever go anywhere toward compensating this family for the loss of the victim. I arrived at a starting point of five and half year’s imprisonment. I now stand back and consider what the final sentence should be from a holistic point of view.

[93]               I have indicated that I would apply a 10 per cent discount for your age and prospects of rehabilitation. I applied a further five per cent discount for remorse and five per cent to cover both your cultural background and the mental health issues and

21     Sentencing Act 2002, s 9(2)(b) and Hessell v R [2010] NZSC 135.

difficulties which as I noted were overlapping. Before accounting for a guilty plea this would result in a sentence in the vicinity of four and a half years’ imprisonment.

[94]               Factoring in the guilty plea of 25 per cent discount and standing back and looking at it as a whole I conclude that a sentence of three years and three months’ imprisonment is an appropriate end sentence in the circumstances.

[95]               Mr Whaanga please stand. I sentence you to three years’ and three months’ imprisonment on the charge of manslaughter.

[96]I make an order for final permanent name suppression of the victim.

Grice J

Solicitors:
Crown Law Office, Wellington