R v Young

[2012] NZHC 1460

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-092-001800

CRI-2011-092-001799 [2012] NZHC 1460

THE QUEEN

v

PATRICK FRANCIS YOUNG

Hearing:         7 June 2012

Counsel:         S J Gray and M R Galler for the Crown

D S Wallwork for the Prisoner

Judgment:      7 June 2012

SENTENCE OF DUFFY J

Counsel:     D S Wallwork P O Box 76500 Manukau City Manukau 2241 for the Prisoner

Solicitors:    Meredith   Connell   P   O    Box   2213   Shortland   Street   (DX   CP24063) Auckland 1140 for the Crown

Copy To:     S D Cassidy P O Box 26172 Epsom Auckland 1344

R v YOUNG HC AK CRI-2011-092-001800 [7 June 2012]

[1]      Patrick Francis Young, you are for sentence today, having been found guilty of the manslaughter of Aran Jenkanying by a jury and having pleaded guilty to causing grievous bodily harm to Arunee Jenkanying.

[2]      You were charged with the murder of Mr Jenkanying.  Your defence before the jury was that you had assaulted Mr Jenkanying in self defence.  The jury finding you guilty of manslaughter is not inconsistent with how your defence portrayed what occurred on the day of the incident.  Their verdict is consistent with them accepting that you acted to defend yourself, but with an extreme and unreasonable use of force. The assault of Mr Jenkanying can be seen that way, or it can be seen in terms of the account of events that Ms Jenkanying gave at the trial.

[3]      At the trial,  your evidence was that Mr Jenkanying came at  you with a tokotoko, made out of wooden Dowling such as is used for broomsticks.  You said that you took the tokotoko off Mr Jenkanying and struck him three times on the head.

[4]      The evidence showed that Mr Jenkanying was more than 10 years older than you.   The photographs show that he was not a large or heavily built man.   He received injuries that led to his death. You received almost no injuries at all.

[5]      The incident occurred in a suburban setting with neighbouring houses that were occupied.  So you could have retreated from Mr Jenkanying, either into your parents’ home, or a neighbouring property.  There was no evidence from neighbours of hearing you calling out for help, or for someone to call the police. You could have used the tokotoko to fend off Mr Jenkanying by striking him on other parts of the body that are less vulnerable than the head.

[6]      Given the setting in which the assault occurred, Mr Jenkanying’s age and the extent of his injuries, the jury’s rejection of your defence of self defence can be readily  understood.    However,  their  verdict  does  not  necessarily  establish  that Ms Jenkanying’s account of events is true and correct.  Indeed, I consider that had the jury been sure that her account of events was true and correct, they would have found you guilty of murder.  This is because, on her account, your conduct would at

the least have amounted to what I would call a reckless killing, which fits with s 167(b) of the Crimes Act 1961.

[7]      I consider, therefore, that when it comes to sentencing you, I should form a view of the circumstances of the offending that fits with the jury’s verdict, but which also gives you the benefit of the doubt where there is more than one explanation for what  occurred.     For  this  reason,  I  propose  to  view  your  offending  against Mr Jenkanying as involving a response to his assault at you, a response that went well beyond the reasonable force that you could have properly used in the circumstances to defend yourself.

[8]      Mr and Ms Jenkanying had gone to the property that day to prepare it for viewing by a real estate agent.  The property was your former family home.  On your father’s death, it passed to Ms Jenkanying; although there was evidence that if it was sold, the proceeds were to be split in equal shares between her on the one hand and you and your siblings on the other. You and your siblings were upset at the fact your family  home  was  to  be  sold.    Before  your  father  married  Ms  Jenkanying,  the property was mortgage-free.  Loans secured by mortgages against the property were used to fund her business ventures.  To what extent your father benefited from those ventures was not explored at the trial.   Although your siblings were keen to buy Ms Jenkanying’s share of the property, the presence of the mortgages on the title and the indebtedness involved made the purchase impossible.

[9]      There   was   also   the   fact   that   you   and   your  family  were   upset   by Ms Jenkanying’s actions after your father’s death.  She had not attended the tangi up north, and when your family returned from the north, they found the house had been emptied of its contents, so that you could not have the house blessed in the usual way.  I accept that this would have been provoking and very upsetting for you and for other members of your family.

[10]     It is understandable, therefore, that when Ms Jenkanying and her brother arrived on the day of the incident, neither they, nor you, would have been happy to see  each  other.    Given  the  real  estate  agent  was  expected  at  10.00  am,  I  can

understand that Ms Jenkanying would have wanted you off the property quickly and that her brother would have done what he could to ensure you left it.

[11]     The medical evidence was that Mr Jenkanying was struck at least three times to the head.  Although that might suggest he was struck more than three times, I propose to sentence you on the basis that there was simply a minimum of three blows to the head.  I will not assume there were additional blows to the head, as I cannot be sure that there were.  Clearly though, the blows you struck were serious, as they caused injuries which led to Mr Jenkanying’s death.

[12]     I now turn to deal with the assault on Ms Jenkanying.   At the trial, she described the assault on herself as involving being hit with the tokotoko, as well as you kicking her when she was on the ground.  You say that you only hit her with your fists.  The medical evidence shows that she received serious injuries from the assault that are consistent with the commission of the offence of causing grievous bodily harm. You admitted in your evidence that you punched her and that when she fell to the ground, you kicked her.  I consider that when it comes to her injuries, the medical evidence speaks for itself.   It reveals that she had the following injuries: mild bleeding in the brain, with bruising to the right side of the brain; fracture of the right  side  of  the  skull;  fracture  of  the  right  cheek;  fracture  of  what  Dr Young described in his evidence as a central part of the brain.  Other facial bones were also fractured. Whether you used a tokotoko or your fists, you caused her serious injury.

Victim impact statement

[13]     In terms of the victim impact statement, Ms Jenkanying laments the loss of her brother.  She says she still remembers the day of the attack and cries every time she thinks of it.  She feels that she is now living by herself with no friends, no place to stay and no family, except her three sons.

[14]     I have also today seen the victim impact statement from Mr Jenkanying’s younger daughter.   It is not clear to me how old his younger daughter is, but it is clear that she is at an age when she could have expected to have more time with her

father, more time to get to know him, to express her love and feelings for him.  She has lost this opportunity, as a result of your actions.

Personal circumstances

[15]     Looking at your personal history, you have 53 prior convictions.  Of these, there are 12 violence-related offences dating between 1987 to 2009:

(a)       One fighting in a public place; (b)        Four of common assault;

(c)       Four of male assaults female;

(d)      One of assaulting a Police Officer; (e)  One of rape; and

(f)       One of unlawful sexual connection, which occurred at the same time as the rape.

[16]     Also, you were convicted of breaching court release conditions two days before the present offending.   It is unclear whether you were still under those conditions at the time of the offence, although the Crown contends that you were.

Pre-sentence report

[17]     You are now 43 years old.   You are the youngest of five siblings.   You describe yourself as having a good and supportive upbringing, with a close relationship to your family, and that seems to me to have been borne out by the support you received both at the trial and today.  I note that today your whanau is here for you.  It must be horrible for them to have had to live through your criminal history; this will not be the first time that they have been here in Court, waiting for sentence to be passed upon you as a result of your conduct.  There are many victims resulting from your offending, Mr Young.

[18]     You have a significant list of criminal convictions.   You attribute these to alcohol use and dysfunctional relationships, but you do not otherwise understand why you behave the way you do, and in the present case, there was no evidence of substance abuse, or alcohol misuse.   It really seems to have been a matter where confronted with a situation, which many people would have found angry and upsetting, you exploded in a very violent way.

[19]     You have had eight previous imprisonment sentences.  While in prison, you have undertaken many treatment programmes, including psychological treatment, alcohol and drug programmes and Māori specific spiritual healing.  You told the pre- sentence report writer that you are highly motivated to undertake further violence prevention programmes in prison.

[20]     The writer of the pre-sentence report notes that you do not seem to have insight into your offending.  The writer notes that, to her, you continued to maintain your  innocence,  saying  that   you  were  merely  using  the  tokotoko  to  keep Mr Jenkanying away during the property dispute.  You said you only went up north after the assault because you were scared and did not realise the full extent of Mr Jenkanying’s injuries.

[21]     Overall,  the  report  writer  assesses  your  risk  of  re-offending  as  high, especially since you have already been through rehabilitation programmes that do not seem to have helped you gain insight into your offending.

[22]     I take the point your counsel has made today about the briefness of the report, and it may be that the report writer did not spend as much time as could have been spent canvassing why you are repetitively offending.  But at the same time, your past conduct speaks for itself, and I consider the inferences she has drawn from your conduct to be reasonable ones.

[23]     I now turn to the purposes and principles of sentencing.

Purposes and principles of sentencing

Relevant purposes of sentencing (s 7, Sentencing Act 2002)

[24]     In terms of the relevant purposes of sentencing, it is my duty to ensure that the sentence achieves the goals of:

(a)       Accountability  for  harm  done  to  the  victim  and  the  community

(s 7(1)(a));

(b)      Responsibility for, and acknowledgement of, that harm (s 7(1)(b)); (c)           Provision for victims’ interests (s 7(1)(c));

(d)      Denunciation (s 7(1)(e)) and deterrence (s 7(1)(f)); (e)           Protection of the community (s 7(1)(g)); and

(f)       Rehabilitation and reintegration into the community (s 7(1)(h)).

Relevant principles of sentencing (s 8, Sentencing Act)

[25]     In terms of the relevant principles of sentencing here, there is:

(a)       The  gravity  of  the  offending,  including  the  degree  of  culpability

(s 8(a))

(b)      The seriousness of the type of offence (s 8(b));

(c)       Consistency with appropriate sentencing levels (s 8(e)); (d)    The effect of the offending on the victim (s 8(f));

(e)       I  must  impose  the  least  restrictive  outcome  appropriate  in  the circumstances (s 8(g));

(f)       I should also consider your personal, family, whanau, community, and cultural background where rehabilitation is a purpose (s 8(i)).

Aggravating and mitigating factors (s 9, Sentencing Act)

Aggravating factors of the offending

[26]     I  should  also  consider  the  aggravating  and  mitigating  features  of  the offending and aggravating and mitigating features relating to yourself.

Crown submissions

[27]     The Crown accepts that the sentences for the two counts should be served concurrently, with the starting point for manslaughter adjusted to take into account the totality of the offending.  The Crown says this would result in a starting point of eight to 10 years’ imprisonment.

[28]     On the basis of your prior convictions and the fact that you were subject to standard  and  special  release  conditions  when  the offending was  committed, the Crown submits that a 12 to 24 month uplift would be appropriate.   The Crown submits that no discount is appropriate, given that you continue to deny your offending and that you have had ample opportunity for rehabilitation.

[29]     The  Crown  further  submits  that  a  minimum  period  of  imprisonment  of between half and two-thirds of the sentence is warranted and justified.

[30]     Therefore, the Crown submits the total sentence should be between nine to 12 years’ imprisonment, with a minimum period of imprisonment between half and two- thirds of the final sentence.

Prisoner’s submissions

[31]     Your  counsel  submits  that  a  starting  point  for  the  manslaughter  offence should be six years’ imprisonment, and further submits that a six month uplift for

your previous convictions is warranted, but that a six month discount should be

given for the victim’s part in the offence and for your genuine remorse.

[32]     Your counsel  submits  that  a  concurrent  term  of imprisonment  should  be imposed for the grievous bodily harm count.

[33]     Your counsel submits that an appropriate final sentence would be six years’

imprisonment.

Sentencing approach

Tariff case

[34]     In terms of sentencing approach, there are no tariff cases for manslaughter sentences.    This  is  simply  because  deaths  result  in  many  different  ways  from unlawful action.  Instead, as stated in R v Edwards [2005] 2 NZLR 709 at [14], the culpability of an offender must be assessed according to the individual circumstances of the case. The best guidance is from considering similar cases. However, I consider that R v Taueki [2005] 3 NZLR 372 (CA) (which is a tariff decision relating to grievous bodily harm cases), at [31], provides some guidance as to what factors might be specifically relevant in an offence, which, if death had not resulted, would have amounted to the offence of causing grievous bodily harm. As I noted in R v Kapea HC Hamilton CRI-2009-019-10579, 22 February 2011, but for the victim’s death in that case, the Taueki principles would have applied.   I consider the same applies here and, therefore, I consider the Taueki bands provide relevant guidelines.

[35]     Here, the relevant factors of extreme violence, serious injury, use of a weapon and attacking the head place the offending at the bottom end of band 3 of Taueki (nine to 14 years).

Crown’s cases

[36]     In  terms  of  the  Crown’s  relevant  cases,  in  R  v  Maposua  CA131/04,

3 September 2004, where Mr Maposua became angry but was otherwise unprovoked

by the victim, he picked up a heavy broom that had a 30 millimetre thick handle and struck a blow on the top of the victim’s head with such force that the head of the broom came off on impact.  The victim fell unconscious to the ground, suffering a severe laceration to the left side of his head.  He suffered irreversible brain damage and died two days later.

[37]     Rodney Hansen J imposed a starting point of four or five years, which the Solicitor-General appealed as manifestly inadequate.  The Court of Appeal noted that there was “much force” in the submission that the minimum starting point that could have  been  adopted  was  six  years’ imprisonment.    Ultimately,  in  line  with  the principle that in a Solicitor-General appeal, the sentence must be adjusted no more than the minimum necessary to remove the element of manifest inadequacy.  So, the Court of Appeal adopted a starting point of five years’ imprisonment, but said “an even higher starting point could well have been justified”.

[38]     I note the Crown’s reliance on R v Ambach [2011] NZCA 93. In that case, there was a starting point of 13 years’ imprisonment. The offending was described as a particularly cruel and brutal attack on a vulnerable victim. I do not consider the circumstances in Ambach to be comparable to the circumstances here and I do not find that case of great assistance.

Defence’s cases (selected)

[39]     The defence has provided many cases involving manslaughter and grievous bodily harm, but few that show a similar fact pattern to the present offending.  I have only relied on those that I think are particularly relevant for the present sentencing.

[40]     In R v Manukau CA207/04, 15 November 2004, Mr Manukau, who was affiliated with a gang, became involved in a gang brawl with his brother while he was intoxicated.  A security guard endeavoured to remove either him or his brother from the premises.  Mr Manukau ended up stabbing two men, one of whom died and the  other  of  whom  was  seriously  injured.    There  was  no  evidence  that  either Mr Manukau  or  his  brother  were  at  risk  of  serious  harm.    After  the  stabbing, Mr Manukau continued to behave in a violent way.  Mr Manukau’s defence of self-

defence was rejected by the jury.  He was found guilty of and wounding with intent to cause grievous bodily harm.

[41]   In sentencing Mr Manukau, the sentencing Judge found that concurrent sentences for the two charges should be imposed, that the lead charge must be manslaughter, which must be somewhat increased to reflect the totality of the offending and the fact that there were two victims, as opposed to one.  The Judge found that a starting point of eight to nine years’ imprisonment would be appropriate, but  ended  up  imposing  only  seven  years’ imprisonment  for  the  totality  of  the offending.  The starting point was not appealed, but the Court of Appeal found it was “very light”, and must have taken into account excessive self defence.  The case was appealed on the ground that the sentencing Judge refused to grant a minimum period of imprisonment.  This was successful and a minimum period of imprisonment of three and a half years’ imprisonment was imposed.

[42]     In  R  v  Kulitapa  HC  Auckland  CRI-2006-024-487,  21  February  2008, Mr Kulitapa and others punched a local man to the ground at a park, knocking him unconscious.  The victim was kicked in the head more than once. At some stage, the victim regained consciousness and tried to stand up.  He was punched again, which sent him straight to the concrete path.  He was then left injured in the park.  He died. For the deliberate and provoked attack, targeting the victim’s head, Courtney J took a starting point of nine years’ imprisonment.  For the injuring with intent on another victim, Courtney J imposed a seven year sentence, to be served concurrently with the manslaughter sentence.  She did not uplift the manslaughter sentence to account for the totality of the offending, despite the violence on the security guard.

[43]     In R v Tuaimalo HC Auckland CRI-2006-092-11901, 12 December 2007, Mr Tuaimalo was attending a church fundraiser with his brother and his nephew, when his brother took exception to something that the victim had said and punched him in the head.  Mr Tuaimalo continued the assault by punching the victim as he lay on the ground and kicking and stomping him on the chest.   While he was being dragged away, Mr Tuaimalo smashed a bottle over the head of another person, then broke away to stomp the victim on his face. The first victim died from chest injuries.

[44]     At  sentencing,  Venning  J  found  that  Mr  Tuaimalo  intended  to  hurt  the deceased, but death could have been avoided if there had been an earlier diagnosis of the deceased’s condition.  This lessened his culpability slightly.  But given that the victim was defenceless on the ground and the attack was deliberate, a starting point of six years’ imprisonment, taking into account the other charge, was imposed.

Researched cases

[45]     In  R  v  Kapea  HC  Hamilton  CRI-2009-019-10579,  22  February  2011, Mr Kapea and two others gathered, intoxicated, at the end of the driveway where the victim had a gathering.  There was a verbal confrontation.  The victim was armed with a hockey stick with which he drew an imaginary line that he told Mr Kapea and the others not to cross.  When they crossed the line, a fight ensued, during which the victim struck Mr Kapea’s head with the hockey stick, breaking the stick in the process.  Mr Kapea then somehow gained possession of a hammer and struck one blow to the victim’s head with it, killing the victim immediately.

[46]     In sentencing Mr Kapea, his offending was found to warrant a starting point of eight years’ imprisonment, taking into account the violence involved, the attack to the head, a life-threatening injury, the use of a weapon and multiple attackers.

[47]     In R v Matlobyaygazwini HC Auckland CRI-2008-004-6716, 18 November

2009, the principal offender, Mr Fuimaono, the victim and other men had assaulted Mr Fuimaono’s associate, Mr Matlobyaygazwini, earlier in the week, stealing drugs and money in the process.  Later that week, Mr Matlobyaygazwini and Mr Fuimaono confronted the victim, who had tried to escape in fear.  There was a confrontation that ended with Mr Fuimaono striking the victim multiple times on the head with a stick.  Mr Fuimaono then left the scene.  Those who were taking care of the victim did not seek medical help quickly enough, so that by the time the victim was taken to hospital, the injuries were too severe to be treated and the victim died.

[48]     Lang J found that it was no answer that the victim may not have died if treated promptly.  In sentencing Mr Fuimaono, the one found to have struck the fatal blows, Lang J found that although short of premeditation, Mr Fuimaono’s actions

showed that he did deliberately get himself involved in a situation that would certainly involve violence.  Even if the victim was the one who was armed with the stick and brandished it, that did not remove much culpability because in the circumstances, the victim had already been attacked by Mr Fuimaono’s associate, so to brandish the stick against further attackers was seen as a normal response.  As for the blows themselves, they were struck with a weapon, causing significant fractures to the victim’s skull, a vulnerable part of the victim’s anatomy.  As a result, Lang J imposed a starting point of eight years’ imprisonment.

Analysis

Setting a starting point

[49]     As stated above, it is appropriate to treat this offending as being at the low end of band 3 of Taueki.

[50]     Save for Maposua, the present offending is comparable with the other cases to which I have referred.   It involved infliction of serious harm.   I distinguish it, however, from Ambach.

[51]     To the extent that it is accepted that the jury considered that this was a case of excessive self defence, rather than a reckless killing, this is similar to Kapea, where Mr  Kapea  was  clearly  provoked  into  acting  excessively after  having  first  been attacked.

[52]     Mr Young, whilst your offending does not have the same aggravating feature of group violence, all the other features are present: violence in the form of multiple blows; attack to the head; life threatening injury; and the use of a weapon.  However, it must be noted that here, the weapon was a wooden tokotoko, as opposed to a hammer.  Also in your case, I am prepared to approach the sentencing on the basis that  it  was  Mr  Jenkanying  who  first  assaulted  you  and  that  there  was  no premeditation on your part.   Rather, there was an excessive over-reaction on your part.

[53]   Ultimately, I consider that a starting point of seven and a half years’ imprisonment  would  be  appropriate  to  reflect  all  the  relevant  circumstances, excluding the related offence.

Related offences and totality

[54]     The charge for causing grievous bodily harm to Ms Jenkanying arose out of the same sequence of events, so the sentence for that should be served concurrently. Having regard to the totality principle, I agree with the Crown that there should be an uplift to the sentence for manslaughter to reflect this charge.  Taking into account the serious injuries that Ms Jenkanying suffered, an uplift of 12 months would be appropriate to reflect the totality of the offending.

[55]     That brings the total starting point to one of eight years and six months’

imprisonment.  I need to make further adjustments to reflect your criminal history.

Adjusting the starting point

Personal aggravating factors

[56]     You have 12 previous violence related convictions, some of which are recent, although several seem to be domestic violence related, and I refer there to the male assaults female convictions.  None are similar to the present situation, but I consider, in view of your criminal history, and particularly the 12 violent convictions, that an uplift is warranted and I consider it should be one of 12 months.  That brings the sentence at this point to nine years and six months’ imprisonment.

Personal mitigating factors

[57]     You pleaded guilty to the grievous bodily harm count at the beginning of the trial.   The leading charge still went to trial.   However, you were acquitted of the murder charge.

[58]     I  have  been  told  today  that   you  were  prepared  to  plead  guilty  to manslaughter, but that the Crown would not have accepted a guilty plea to manslaughter.

[59]     I consider that you should be given some discount to reflect the late guilty plea to the grievous bodily harm count and the fact that you were prepared to accept and plead guilty to manslaughter.

[60]     I do not accept the Crown’s submission today that the fact that you ran a

defence of self defence negates any discount.

[61]     I propose to give a discount of approximately five per cent.  This brings the sentence to nine years’ imprisonment on the lead offence.   As stated in the pre- sentence report, your continued denial of any culpability and shifting blame on to Mr and Ms Jenkanying shows little remorse.

[62]     I have read the letter today that you have written to Ms Jenkanying.  I accept the expressions of remorse in the letter, but I am somewhat sceptical of them because they have come so late.  I do not think this is a case where I should give a discount for remorse.  I see you perhaps more as feeling sorry for the situation you now find yourself in and what you have done to your own family, rather than being truly remorseful for the harm you caused to the victims.

[63]     That  leaves   me,  therefore,   with   an   end   sentence  on   the  charge   of manslaughter of nine years’ imprisonment.

Concurrent sentence

[64]     In terms of the concurrent sentence for the wounding with intent charge, I consider that that offending would fall squarely within band 2 of  Taueki, and I consider that on the charge of grievous bodily harm, an appropriate sentence to be served concurrently is one of six and a half years.

[65]     I now turn to the question of a minimum period of imprisonment.   Under s 86(2)  of  the  Sentencing  Act,  the  Court  may  impose  a  minimum  period  of imprisonment if it is satisfied that the circumstances of the offence are sufficiently serious  that  the  one-third  default  minimum  that  is  usually  served  would  be insufficient to:

(a)       Hold the offender accountable for the harm done; (b)  Denounce the conduct;

(c)       Deter the offender or others; or

(d)      Protect the community.

[66]     In the present case, denunciation has been reflected in choosing the lower end of band 3 of Taueki.  But I consider that deterrence remains a relevant consideration. Although  you have been willing to attend violence-prevention programmes, you have already done so in the past, and the fact that you are here today shows that rehabilitation has not been successful. Your lack of insight into your offending – and I do say you must lack insight, because it is really the only way to account for your continued presence in court – shows to me that you still are at high risk of re- offending.   Therefore, I consider that there should be a minimum period of imprisonment.  But I consider I should impose no more than the bare minimum.  I intend, therefore, to impose a minimum period of half the sentence, which makes that one of four years and six months’ imprisonment.

[67]     Mr Young, you have put yourself and your whanau through a lot of trouble, and you have hurt two other people, whom you had no reason at all to hurt.  As you have recognised in the letter that you wrote to Ms Jenkanying, your father, if alive today, would be devastated to know what has happened.  I just hope that you will finally, now at 43 years, learn from this event and do your utmost to ensure that this is the last time that you do appear in Court.

[69]     On   the   charge   of   manslaughter,   you   are   sentenced   to   nine   years’ imprisonment, with a minimum period of four years and six months’ imprisonment. On the charge of causing grievous bodily harm, you are sentenced to six and a half years’ imprisonment, to be served concurrently with the other sentence.

[70]     Stand down please.

Duffy J