R v Witehira
[2021] NZHC 678
•30 March 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-092-9267
[2021] NZHC 678
THE QUEEN v
FREDA ELLEN WITEHIRA
Hearing: 30 March 2021 Appearances:
A R Burns for Crown Q Duff for Defendant
Sentence:
30 March 2021
SENTENCING REMARKS OF PETERS J
Solicitors: Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau Counsel: Q Duff, Auckland
I M Stewart, Auckland
R v WITEHIRA [2021] NZHC 678 [30 March 2021]
[1]Tēnā koutou, tēnā koutou, tēnā koutou katoa.
[2] Ms Witehira, you are for sentence for the manslaughter of Colin Anderson on 24 August 2019.1 The maximum sentence for manslaughter is life imprisonment.2
[3] A jury found you guilty of manslaughter following a trial in November 2020 at which I presided. When the jury found you guilty, I entered a conviction for manslaughter and gave you what we refer to as the “first strike” warning.
[4] Before I go any further, I wish to acknowledge the devastating effect these events have had on Mr Anderson’s whānau. No one in the courtroom will be in any doubt about what Mr Anderson’s death has meant for those close to him. This morning I have heard the statements from Mr Anderson’s father, Fred, his brother also named Fred, and his cousins, Kate and Tania. I have also had the benefit, before this morning, of reading the statement provided by Anna Anderson, Mr Anderson’s sister. From the information that I have read and heard, it is also apparent that Mr Anderson was a loving father, and soon to be a grandfather.
[5] All in all, Mr Anderson was a dearly loved son, brother, father, and cousin, and of course, Ms Witehira, he was also your sister’s, Kuini’s, longstanding partner.
[6] As I said when I summed up to the jury, this case is a tragedy. Mr Anderson has lost his life. Your sister has lost her partner. Mr Anderson’s whānau have lost someone very dear to them. You have been in custody since shortly after Mr Anderson’s death and your three youngest children, who were living with you at the time, are now in someone else’s care. And now you have a conviction for manslaughter.
Process
[7] In so far as concerns the process this morning, it is necessary for me first to summarise the facts of the offending. Then I can turn to the sentencing process itself, which comprises two stages. Please everyone bear with me. The process does take
1 Crimes Act 1961, s 171.
2 Section 177.
some time but I need to explain the reasons for what I have decided to the Crown, to Mr Anderson’s family, and to you. So, it does take me some time and you will not know the sentence until I get to the very end, so just bear with me until then.
Facts
[8] Turning to the facts. On the afternoon of 24 August 2019, Mr Anderson and Kuini were at a local bar. At the same time, you and your mother, Mini Witehira, were drinking at Mr Anderson and Kuini’s unit in Ōtāhuhu, where Mini was also staying.
[9] In the early evening you went for a walk with your son, called in at the pub where Mr Anderson and Kuini were, and then you all returned to the unit. You all continued to drink.
[10] An argument then broke out about an incident for which Mr Anderson believed you were responsible and which had involved his brother. The mood soured and things became heated.
[11] At that point, Kuini tried to persuade Mr Anderson to go to bed. He appears to have been intending to do so, but something he said, or you said or did, caused a further flare up. One of the children gave evidence that Mr Anderson was threatening to “smash” your partner at the time. The outcome of all of this arguing was a physical fight between you, Mr Anderson, and your mother, Mini, in the bedroom, with Kuini trying to break things up and restore order.
[12] At that point, Kuini decided she would leave, and she did so, taking the two children with her. You called your sister, Whae, and said that you and Mr Anderson were arguing and you needed help. Whae was asleep and showed little interest. You said to her that if Mr Anderson did not shut up you would stab him. You explained that at trial as an attempt to get him to stop threatening you. Regardless, the arguing and aggression continued.
[13] The situation continued to deteriorate. At some point Mr Anderson came out of the bedroom and I am satisfied he attacked and strangled Mini. There was never any dispute at trial that Mr Anderson attacked Mini in the living area after Kuini had
left the unit. Mini’s evidence about that was that she was struggling to breath and struggling to get Mr Anderson’s hands off her neck.
[14] Your evidence was that, on seeing this, you picked up Mr Anderson’s crutch, which was in the living area, and hit him with it to the back of his leg to make him stop attacking your mother. That did make him stop. However, your evidence was that he then grabbed the crutch from you, got to his feet and started coming towards you. Your evidence was you were scared he was going to attack you. By this stage, you were close to the dining table and you reached down, picked up the first thing that came to hand, and stabbed Mr Anderson with it, he being right in front of you. Your evidence was that you thought you had picked up a pencil, but in fact you had picked up one of several knives on the table.
[15] The wound you caused led to Mr Anderson’s death, and although the emergency services were called and arrived, they could not resuscitate Mr Anderson.
[16] The Crown charged you with murder. You defended the charge. You always acknowledged you had caused Mr Anderson’s death by inflicting the fatal wound, but you said you were acting to defend yourself and Mini when you did so.
[17] Self-defence, which is a complete answer to any criminal charge, has two parts to it. The first is that the defendant — you — were acting to defend yourself or someone else, in this case, Mini. And the other is that the force used to respond to the threat must be proportionate.
[18] The jury did not accept your defence of self-defence. On my view of the evidence, the jury must have accepted you were trying to defend yourself and Mini at the time you stabbed Mr Anderson, but considered that the force you used was excessive. The Crown submitted to the jury you had other options. One was to run away and another was to call the Police. I think the jury must have accepted that those were realistic alternatives in the circumstances.
[19] Having rejected self-defence, the jury would have arrived at the next issue, which was whether you were guilty of Mr Anderson’s murder. That turned on whether
the jury was satisfied you had what we lawyers refer to as “murderous intent” at the time you stabbed him. Obviously the jury were not persuaded of this and that is why they found you not guilty of murder. That left manslaughter as the only possible verdict.
[20] So I am approaching this sentence as a case of excessive force used in self- defence, but without murderous intent.
[21]Several other points are relevant.
[22] The first is that the Crown submitted to the jury, and has now submitted to me in its written submissions, that your account of how events unfolded cannot be correct, because Mr Anderson had other injuries to his body which your account does not explain.
[23] Mr Anderson did have other injuries, some of which must have been caused by something sharp, and I agree your account does not explain them. On the other hand, as defence counsel have submitted, there is no evidence that you were the person that inflicted them. I cannot rule out that they were inflicted either during the fight in the bedroom, or when Mr Anderson and Mini were on the living room floor. So, for that reason I intend to put them to one side.
[24] Secondly, I am satisfied that Mr Anderson did have his hands around Mini’s neck, and that you acted to protect her. I expect most people in your position would have done the same. Most people would not stand by and watch their mother being strangled.
[25] Thirdly, things then happened quickly. I am satisfied your act in picking up the knife and stabbing Mr Anderson was impulsive and not planned, whatever you may have said to Whae.
[26] Fourthly, you, Mini, and Mr Anderson had all had too much to drink. I consider that alcohol played a significant part in how people behaved that evening. I do not know whether you and Mini were intoxicated but you had been drinking since early
afternoon. Toxicology tests showed that, at the time of his death, Mr Anderson’s blood alcohol level was five times the legal limit for driving. The events which occurred were out of character for you, and they were out of character for Mr Anderson, and it is reasonable to assume matters would have ended very differently if you had all had less to drink.
Information
[27]I have received a great deal of information to assist me today.
[28] First, I have three important reports. One is from Corrections, another has been prepared by Mr Oliver Carlé, and the third by Dr James Gardiner, a psychiatrist, and I am going to come back to them shortly.
[29] Secondly, I have a report from a counsellor at the prison who says that you have attended more than 25 counselling sessions with her, and she has been impressed by your determination to carve out a different life for you and your children on your release from prison. The counsellor says you are focused on becoming a dependable and pro-social role model for your children and the overall tone of her letter is very positive.
[30] Thirdly, I have your recent letter to me and I have heard you speaking this morning. I am satisfied the remorse conveyed in your letter and which you spoke of this morning is heartfelt and genuine. Mr Anderson was a longstanding member of your whānau and your evidence at trial was that he was like a brother to you. That is of course exactly what he was. A brother-in-law. I am satisfied that you would undo the events of that night if you could, not so much for your own sake but because it would bring him back.
[31] Fourthly, at my request, you swore an affidavit saying your three youngest children, who were living with you at the time of these events, are now staying with a relative, pending further consideration by the Family Court. You also say you hope the children will return to live with you on release, and you wish to take every opportunity available to you now to be the best mother you can.
[32] The last point I want to mention is that you have a modest criminal history. This offending is quite out of character.
PAC report and reports of Mr Carlé and Dr Gardiner
[33]Coming back to the reports from Corrections, from Mr Carlé and Dr Gardiner.
[34] The Corrections report is very helpful. Understandably, it is not as detailed as the other two but it is remarkably consistent with them. The Corrections report confirms my view that excessive consumption of alcohol played a substantial part in what occurred that evening and the report also refers to your very difficult upbringing. The writer of the report said you appeared motivated to engage in any rehabilitative programmes to make a change for the sake of your children.
[35] The other two reports provide more detailed information regarding your background and other cultural matters and how they might be relevant to the manner in which events unfolded that evening and their relevance to sentencing.
[36] What appears from Mr Carlé’s report is that your life has been marked by violence. When you were a child this was from your father and, when he died, from others. The report also details neglect by those responsible for your care, and physical and sexual abuse. You were pregnant as a teenager, spent a period living on the streets, and have several children.
[37] Your adult relationships have been marked by violence. You have had three relationships — or you had at the time of trial — all with violent men. To take just one example, one of those partners was Mr Phillip Edwards, himself convicted of the manslaughter of the well-known interior decorator, David McNee. Mr Carlé’s report states that you were the subject of a violent assault by Mr Edwards who at one point took you and one of your children hostage. I was able to locate Mr Edwards’ sentencing note for that offending.3 Mr Edwards was sentenced for one charge of abduction of your child and two charges of male assault female, you being that female.
3 R v Edwards [2015] NZDC 5261.
[38] Another of your partners is said to have slashed your throat with a broken bottle.
[39] Your life has also been marked by personal tragedy. One of your brothers, who was a very caring and responsible figure after your father died, himself died suddenly, as did one of your own children recently.
[40] Not surprisingly, these events have taken a considerable toll on you, as they would on anyone. It is also not surprising that you have had periods of alcohol and drug abuse.
[41] In summary, Mr Carlé’s assessment was that you have never enjoyed a life that is free of domestic violence and that you accept this as a normal part of family life and, unfortunately, that you are presently alienated — hopefully that will change — from Te Ao Māori. Despite this, Mr Carlé’s assessment is that you are caring and kind natured, and have considerable potential.
[42] Dr Gardiner’s professional view is that you meet the diagnostic criteria for post-traumatic stress disorder, as a result of the combined effect of the events in your life, and that domestic violence particularly triggers an “adrenaline rush” in you, and that is what happened when you saw your mother being strangled. The sight of Mr Anderson attacking your mother would have been intolerable to you. Dr Gardiner also says your background meant that when you perceived Mr Anderson was going to attack you, you opted for the “fight” rather than “flight” response.
[43] So, those are the reports I have received and they have been informative, and helpful.
Sentencing process
[44] Having laid out all of that important information, I turn now to the sentencing process.
[45] The first step in the process is to establish what we refer to as the starting point. The starting point is the sentence which reflects the culpability inherent in the offending.
[46] Then step two, once we have set the starting point, is to adjust it upwards or downwards by taking into account matters that relate to you personally. It is in that way that I arrive at the end sentence.
Starting point
[47] Turning to the starting point, manslaughter is always very serious offending, because inevitably someone — in this case Mr Anderson — has lost their life.
[48] In a case such as this, the sentence imposed must be sufficient to hold you accountable for the loss that you have caused — to Mr Anderson, to Mr Anderson’s whānau, and to the community generally. It must also be sufficient to denounce your behaviour, and deter you, and others, from similar offending in the future. I also must treat you consistently with others, and impose the least restrictive outcome appropriate in the circumstances.
[49] Because manslaughter occurs in a great variety of circumstances, there is guidance to be had from considering the starting point in similar cases.
[50] Crown and defence counsel have each referred me to several cases they contend are similar.4 In all except one, the defendant and the victim had been in a domestic relationship in which the victim, the man, had been violent to the defendant, the female, to a greater or lesser extent, and the defendant had been convicted of manslaughter, having stabbed the victim and killed him as a result. These cases concerned sentencings between 2005 and 2020, and the starting points in them range from a low of three years, six months’ to a high of five years, six months’ imprisonment.
4 R v Stone HC Wellington CRI-2005-078-1802, 9 December 2005; Woods v R [2011] NZCA 573; R v Hu [2012] NZHC 54; R v Paton [2013] NZHC 21; Wharerau v R [2015] NZCA 299; R v Waa [2018] NZHC 1028; R v Balkind [2019] NZHC 2095; R v Beattie [2019] NZHC 3108; R v Iraia [2020] NZHC 1084; and R v Ruddelle [2020] NZHC 1983.
[51] The lowest starting point was adopted in R v Ruddelle.5 In that case, the couple had been in a relationship for more than three years. There had been serious domestic violence. The defendant, believing she was about to be the victim of more of the same, picked up a large knife and stabbed the deceased twice. The starting point in that case was three years, six months.
[52] More in the middle range is Woods v R, where the couple had been in a relationship for approximately 10 years and had two children.6 There had been a history of violence and, on the evening concerned, the couple had been drinking and arguing, and the victim had punched the defendant several times in the face. The defendant grabbed the knife and stabbed the victim twice. The starting point adopted in that case was four years, nine months.
[53] In R v Paton, one of the earlier cases, the defendant had also been the victim of considerable, serious, domestic violence. The deceased beat Ms Paton on the night in question, she grabbed two knives and the victim challenged her to use one. She dropped one but stabbed the victim in the neck with the other and he died shortly thereafter.
[54] The sentencing Judge in that case regarded the level of violence used in the stab to the neck, with a large knife, as being at the very serious end of the scale and adopted a starting point of five years and a half years’ imprisonment.
[55] The Crown says your offending warrants a higher starting point than in Paton.7 That is because there is no history of domestic violence between you and Mr Anderson, and you stabbed him in a vulnerable part of his body, with force. The evidence at trial was that moderate force at least would have been required to penetrate the chest wall, to go through the ribs and into the sac containing the heart. The Crown submits I should adopt a starting point of six years’ imprisonment.
5 R v Ruddelle, above n 4.
6 Woods v R, above n 4.
7 R v Paton, above n 4.
[56] Defence counsel say that I should adopt a starting point of four years, given that death was caused by an impulsive, “heat of the moment” action and, because of Dr Gardiner’s report, defence counsel submits your culpability is less.
[57] Having regard to these authorities, I am satisfied the starting point should be five years’ imprisonment. In my view, the culpability inherent in the offending is similar to Woods in that there had been drinking, arguing, and physical violence between Mr Anderson and you. The defendant in Woods acted impulsively and so did you.
[58] For the avoidance of doubt, I am not persuaded by Mr Duff’s submission that Dr Gardiner’s report is relevant to the setting of the starting point in this particular case, given the view I take of the facts of the offending.
Aggravating and mitigating factors personal to you
[59] This brings me to the second stage which is to take account of factors personal to you which might lead to an increase or a reduction to that starting point.
[60] There is no basis for any increase but Crown and defence counsel are agreed that there must be reductions for other matters.
[61] The first arises from the matters referred to in Mr Carlé and Dr Gardiner’s reports.
[62] The Crown proposes a reduction of 15 per cent. Defence counsel submit 20 per cent.
[63] I am satisfied that a discount of 20 per cent is required to reflect the matters referred to by Corrections, Mr Carlé and Dr Gardiner. There are two compelling reasons as far as I am concerned. The first, as I have said several times now, is that alcohol contributed to what occurred that evening. Alcohol consumption is not usually a mitigating factor in sentencing but your excessive use of alcohol is a consequence of events that have gone before in your life. So I cannot disregard it.
[64] Secondly, I accept that your own experiences, and your observation of your mother being strangled, did lead to a fight rather than flight response. Experience has taught you that domestic violence is normal, is to be expected, and it should be met with a like response.
[65] It is also agreed that a modest discount is required for remorse which will have been apparent to anyone who saw you give evidence and, as I have said, is clear from the letter you wrote and your statement this morning. An additional five per cent is warranted for that.
[66] Lastly, I wish to encourage you to continue to take advantage of the counselling and other programmes available to you in prison, or on release, which could help you and your children in the future. When you are released from prison your priority will be to regain custody of your children, if that is possible, and to be the best parent you can. Having observed you in Court and having heard you give evidence I am confident you have the ability and determination to achieve what you set your mind to. You are young and you struck me as intelligent. To give you that encouragement, I propose to reduce the sentence by a further five per cent for your rehabilitative potential.
[67] These discounts total 30 per cent and they reduce the starting point to an end sentence of three years, six months’ imprisonment.
Sentence
[68] Ms Witehira, please stand. For the manslaughter of Mr Colin Anderson, I sentence you to three years, six months’ imprisonment.
[69]Please stand down.
Peters J