The King v Lyndon Paul Sheed

[2022] NZHC 3304

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-009-13

[2022] NZHC 3304

THE KING

v

LYNDON PAUL SHEED

Hearing:	8 December 2022
Appearances:	M N Zarifeh and J E Lancaster for Crown E Huda for Defendant
Judgment:	8 December 2022

SENTENCING REMARKS OF MANDER J

[1]    Lyndon Sheed, you are for sentence this morning for the manslaughter of Kane Wayman following your conviction by a jury on that charge. Manslaughter carries a maximum sentence of life imprisonment. It is necessary that I set out the factual basis upon which I proceed to impose sentence.

Facts

[2]    Mr Wayman died on the morning of New Year’s Day 2021 after attending New Year’s Eve celebrations at the premises of the Mongols gang at Burnham. He had travelled there the previous evening in the company of [A], and your daughter. Nothing particularly out of the ordinary or untoward occurred during the night. While

R v SHEED [2022] NZHC 3304 [8 December 2022]

there was some evidence that Mr Wayman may have at times made a nuisance of himself or engaged in annoying behaviour, it is not apparent there was any violence.

[3]    You spent much of the night with [A]. At around 7.30 am on the morning of 1 January 2021 you and [A] were woken by a commotion outside. Mr Wayman could be seen retreating from a man who was aggressively pursuing him around a vehicle in the yard. Mr Wayman had a bleeding nose and the male following Mr Wayman was seen to punch him.

[4]    You followed [A] outside. However, you did not try to stop what was going on or break the fight up. To the contrary, you approached Mr Wayman and proceeded to deliver what is described as a “king hit” to Mr Wayman which immediately caused him to fall to the ground. You, together with the original protagonist, and another man then proceeded to kick and punch Mr Wayman, who was lying prone on the ground after being knocked unconscious as a result of your initial blow.

[5]    I sentence you today on the basis the jury concluded the “king hit” you administered to Mr Wayman was a substantive and operative cause of his death. This forceful blow knocked Mr Wayman out. It rendered him defenceless during the group assault that subsequently took place while Mr Wayman was on the ground.

[6]    Your co-defendant at the trial, Mr Carston, who the Crown alleged joined in the assault after you struck Mr Wayman, was acquitted. Leaving aside issues relating to the timing of his involvement, which may have had some bearing on the jury’s assessment of the causative effect of the subsequent group assault compared to your direct punch to the head that rendered Mr Wayman unconscious, there were issues relating to the accuracy of [A]’s identification of him. Similarly, your daughter was acquitted of inciting Mr Wayman’s death, likely because the jury were not satisfied as to the timing of her involvement and whether what she said occurred after the assault had been completed.

[7]    During the course of this attack [A] attempted to intervene but was told to stay out of it. After the assault, and while Mr Wayman lay unconscious on the ground, she sought to enlist you and your associates’ assistance to get medical aid. Eventually, on

[A]’s insistence you, together with another person, placed Mr Wayman (who was a large man) in the back of his vehicle and [A] drove him to Christchurch Hospital. The post-mortem concluded that Mr Wayman was either dead on arrival or very close to death by the time he reached hospital.

[8]    I consider it apparent from the jury’s verdict they found Mr Wayman’s death to have been caused by a combination of the effect of the assault and his own pre-existing vulnerabilities. In particular,  that  the  blow  you  struck  that  caused Mr Wayman to fall to the ground in an apparent unconscious state was a substantial contributing factor in Mr Wayman’s death. The jury must have rejected the unrealistic contention that Mr Wayman’s death was unrelated to the trauma he suffered as a result of the assault or that his death was solely caused by his underlying heart condition and/or his use of methamphetamine that coincidentally occurred when he was being physically attacked.

Victim impact statements

[9]    I have received victim impact statements from Mr Wayman’s mother, his ex-partner, who is the mother of his ten-year-old daughter, and the child’s grandmother. The effect of her father’s death has had a profound effect on the child. As Ms Hague observed in her victim impact statement, Mr Wayman did not deserve to die as he did. She describes not having him in her life as scary. Mr Wayman’s mother, Ms Stokes, has informed me of the many difficulties Mr Wayman had to overcome during his life. She described him as a kind, loving and much-loved son, brother and father who did not deserve to be taken in the manner he was. The Court acknowledges the grief and personal loss that has been caused to them by what is an act of senseless violence.

Personal circumstances and pre-sentence report

[10]   Mr Sheed, you are a 43-year-old man who, while a butcher and knife hand by trade, is reported to have usually supported yourself from a job seekers benefit. You have two daughters and are said to be close to your brother, who is currently in custody for unrelated offending. You were raised in Southland where you enjoyed a relatively

settled home life, free of violence, albeit marred by your father’s alcoholism. You struggled at school and left with no formal qualifications.

[11]   I am informed your youth was marked by delinquency, such as stealing cars and experimenting with drugs and alcohol which resulted in you being placed with a foster family for a year, although you report that to have been a good experience. Following your father’s death there was a period of some 14 years when you reported that you did not consume alcohol, although you did use cannabis. By the time of the present offending you had resumed drinking alcohol.

[12]   While it is suggested your lifestyle as a youth normalised gang activity, your first formal association with a gang did not occur until around 2012. Involvement in the Hells Angels subsequently led to you joining the Mongols, with whom you are a patched member. You are said to experience a sense of family and brotherhood in the gang environment, and you report having started to drink again when setting up the bar for the new Mongols’ clubhouse, which is where this offence occurred.

Starting point

[13]   There is no tariff sentence for manslaughter. The range of sentence available for this crime reflects the wide spectrum of circumstances in which manslaughter can be committed.1

[14]   In sentencing you today I am required to determine a starting point for your sentence, taking into account the aggravating features of your conduct before examining possible mitigating factors that may require adjustment to that starting point.

[15]   There are several aggravating features of your offending which were present to varying degrees:

1      R v Wickliffe [1987] 1 NZLR 55 (CA); R v O’Sullivan CA 340/93, 15 December 1993; Solicitor- General v Kane CA 154/98, 23 September 1998.

(a)Attacking the head:

It is recognised that an assault directed at the head is an aggravating factor. Your primary culpability derives from the king hit you delivered to Mr Wayman’s head. The evidence of the eye witness, which I accept, was that you, together with others,  punched,  kicked  and  stomped Mr Wayman in the head and body while he was unconscious on the ground.

(b)Vulnerability of victim/multiple attackers:

Mr Wayman was already confronted by another person at the time you intervened. You stood there with two others and suddenly, without warning, punched Mr Wayman in the head. That had the instant effect of causing him to fall to the ground. Once on the ground, unconscious, he was effectively defenceless.

(c)The ongoing nature of the beating:

The ongoing nature of the attack on Mr Wayman to a significant extent overlaps with the previously identified aggravating feature. The effect of the continuation of the assault once Mr Wayman was on the ground, in terms of contributing to his death, is not entirely clear. The physical injuries Mr Wayman sustained were limited, but the fact you were prepared to go on with the attack when Mr Wayman presented as being unconscious exhibits an intent to cause him harm and a complete disregard for his safety at the time.

[16]   The Crown has submitted that a further aggravating feature is your involvement with other gang members or associates in the attack on Mr Wayman. There is a gang context to your offending because the attack took place at the Mongols’ gang pad. You claimed to the s 27 report writer that you were – to use your words – “on watch” this particular night and there was an expectation, in your capacity as a

patched member, that you would put a stop to difficulties caused by partygoers, and that violence was the culturally accepted response to such a situation.

[17]   Whether that was the case or not, there was evidence that Mr Wayman may have been antagonising other people present that night, including other gang members and associates. What is clear, however, is that you decided to resolve the situation by attacking Mr Wayman, who clearly was not the aggressor at the time you intervened. He was backing away from another person who was advancing on him. You immediately involved yourself, but it is unclear whether that can be construed as an act of gang violence, or whether you simply saw Mr Wayman as a source of trouble.

[18]   I accept there was no real pre-meditation, given the fact you woke to the fracas that was occurring in the yard, although there can be no question as to the deliberateness of your actions. The punch that knocked Mr Wayman out was no reflex action. Your lack of action to assist Mr Wayman, who was clearly in a very bad state, and your reluctance initially to respond to [A]’s appeals that he needed medical assistance, do you no credit.

The assessment

[19]   As I have already noted, manslaughter covers a wide variety of circumstances. The Crown has submitted that the nature of your assault on Mr Wayman reveals an intention to cause him serious injury and that a starting point should be set by reference to the methodology set out by the Court of Appeal in R v Taueki2 and analogous cases.3 Ms Lancaster submitted if the charge were to be dealt with in accordance with that appellate guidance, then your offending would fall into the second band of offence categories which would justify a starting point between five and 10 years’ imprisonment, with an adjustment for the fact your victim died. Alternatively, the Crown argued the starting point for this offending was likely to fall within the range of sentences available for single punch manslaughter cases and those where people have died as a result of the infliction of group violence.

2      R v Taueki [2005] 3 NZLR 372 (CA).

3      R v Tai [2010] NZCA 598.

[20]   Mr Huda on your behalf submitted the violence you used was neither extreme nor prolonged. He sought to classify your offending as being less serious than those sentencing authorities upon which the Crown relies.4 He referred to two cases that have a notable feature common to this case.

[21]   Blackler v R involved a physical attack on a victim who was struck multiple times in the head. Very serious facial injuries were caused but none would have been fatal to a healthy person. Because of the victim’s pre-existing heart condition the attack resulted in his death. Similarly, in R v Tafutu,5 a joint assault by three offenders on a victim who suffered from diabetes and heart disease was recognised as not the sole or indeed the primary cause of his death.6 The victim suffered a heart attack after the assault. While the injuries that were inflicted in those cases were not themselves fatal and would not have resulted in death in a healthy person, the victims’ pre-existing heart conditions caused them to die. Similarly, in legal terms your physical attack on Mr Wayman, although not the sole cause of his death, was a substantial and operative cause. In both those cases significant terms of imprisonment were imposed, or at least were adopted as starting points.

[22]   The king hit punch you administered to Mr Wayman has some parallels to the so-called “one punch” manslaughter cases, but I cannot ignore the fact that such was your aggression towards Mr Wayman, who at no point was offering violence back, that you continued to assault him after administering that punch, and were one of a group of three men who gratuitously kicked and punched him while he was on the ground. This continuation of the assault appears to have only resulted in moderate or largely superficial injuries, the damage having already been caused by your blow which knocked Mr Wayman unconscious.

[23]   Having reviewed a range of cases, I consider a starting point of five years and eight months’ imprisonment is appropriate.7

4      For example, Blackler v R [2019] NZCA 232; and R v Tavita [2022] NZHC 2841.

5      R v Tafutu [2014] NZHC 657.

6      Blackler v R, above n 4.

7      R v Williams [2022] NZHC 2206; R v Hughes HC Whangarei CRI-2005-088-4349, 11 May 2007; R v Kumeroa  CA 64/01, 16 May 2001;  R v Tafutu,  above n 5, Blackler v R, above n 4; and     R v Tavita, above n 4.

Personal factors

[24]   You have a range of previous convictions that include contravening protection orders, threatening behaviour, breath-alcohol offences and convictions for non-compliance, together with dishonesty offending. Your risk of harm to others is assessed as high, although your risk of re-offending is viewed by the pre-sentence report writer as being moderate. Given the nature of your criminal history, no uplift is warranted, nor is any sought by the Crown.

[25]   Mr Huda submitted a modest reduction could be made for features in your personal background which he submitted predisposed you to involving yourself with a gang. However, the information contained in the s 27 report does not disclose social, economic or cultural deprivation of a type that suggests any causal link to your offending or that realistically mitigates your moral culpability.8 You yourself have acknowledged much of your childhood was settled and the report does not relate a credible account of social and cultural dislocation or of poverty, unemployment or early exposure to violence, which are so often a feature of offenders appearing for sentence.9 It is evident that you experienced educational difficulties, but you have demonstrated an ability to make your way in the world.

[26]   Your explanation for the offending that is disclosed to the report writer relates to your use of alcohol and involvement with a gang. I have discounted your participation in the gang as a factor that aggravates your offending when setting the appropriate starting point. It is likely that personal antagonism felt by other partygoers, including yourself, towards Mr Wayman as a result of some of his behaviour over the course of the night was more likely the driver of your attack, rather than simply your involvement with the Mongols. It follows that whatever element of your past may have predisposed you to join a gang, I do not consider it has any material relevance to what occurred.

[27]   Nor do I consider your use of alcohol played a significant part in your violent offending given the timing of your intervention long after the revelry of the early hours

8      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

9      Carr v R [2020] NZCA 357 at [60].

had finished. In any event, to the extent voluntary consumption of alcohol may have had on your decision-making at the time, I am not permitted to take that into account as a mitigating factor as a matter of law.10

[28]   You have not expressed any particular sentiments of regret for Mr Wayman’s death or feelings of remorse.

[29]   I do not therefore consider there are any identifiable personal mitigating factors that bear on the sentence.

[30]   You have spent four months on electronically monitored bail while awaiting trial and it is accepted some discount is required to reflect that. I allow two months’ discount.

[31]   It follows therefore that the end  sentence  will  be  one  of  five  years  and six months’ imprisonment.

Result

[32]   Mr Sheed, on the charge of manslaughter, I sentence you to a term of five years and six months’ imprisonment. You may stand down.

Solicitors/Counsel:

Crown Solicitor, Christchurch E Huda, Christchurch

10     Sentencing Act 2002, s 9(3).