The Queen v Erstich
[2002] NZCA 122
•6 June 2002
| THE COURT OF APPEAL OF NEW ZEALAND | CA93/02 |
THE QUEEN
V
TIKIAHI MARANGAI AWARU ERSTICH
| Hearing: | 27 May 2002 |
| Coram: | Elias CJ Gault P John Hansen J |
| Appearances: | J C Pike for Crown P J O’Driscoll, K Bailey and C Armstrong for Respondent |
| Judgment: | 6 June 2002 |
| JUDGMENT OF THE COURT DELIVERED BY ELIAS CJ |
The Solicitor-General applies for leave to appeal against a sentence of 2 years supervision with special conditions imposed upon the respondent upon his conviction on a charge of the manslaughter of his father, Walter Erstich. The sentence is sought to be appealed pursuant to s383(2) Crimes Act 1961 on the basis that it was manifestly inadequate.
The respondent was charged with the murder of his father. At the date of his father’s death he was 14 years old. At trial, the respondent was found not guilty of murder but guilty of manslaughter. The verdict may have reflected acceptance of lack of intent to murder, but was more likely on the facts of the case to have entailed the jury’s acceptance of the partial defence of provocation.
As put at trial, provocation was based on the physical abuse inflicted upon the respondent by his father from a very young age. The abuse was acknowledged on behalf of the Crown to have amounted to something not much short of a reign of terror. Expert evidence at the trial indicated that the respondent was suffering from post traumatic stress disorder in which he was unable to escape from flashbacks of the violence he had suffered.
The Crown acknowledges that the tragic background provides some explanation for the offence. It maintains, however, that the question for the Court is one of principle and policy. The killing was deliberate and planned. The Crown accepts that the culpability of the respondent is affected by his diminished capacity to exercise appropriate self control, by reason of the effect of the abuse. The sentence imposed is, however, said to go beyond proper recognition of any diminished responsibility and to have effectively resulted in no punitive sanction at all. Mr Pike submits that in circumstances where a human life has been lost and where the death occurred as the result of a rational plan by the respondent, not immediately connected with any provocative act, the sentence failed to recognise the inherent value society places on life. The circumstances were insufficient to justify a non-custodial sentence response.
Background
The facts are not in dispute. Since about the age of 4, the respondent and other members of his family were subjected to physical and psychological abuse by the deceased.
At the hearing of the appeal, counsel for the respondent produced a schedule of abuse suffered by him. It was accepted by counsel for the Crown. It describes regular beatings from the time the respondent was aged 3 or 4. The respondent was punched and beaten with pipes and sticks. He was thrown against walls and his head was battered against hard surfaces. The respondent observed other violence in the family towards his mother and brothers. As he grew older, the violence increased in severity.
The respondent ran away from home on three occasions. He contemplated suicide. Before he was 10, the respondent had tried to commit suicide by drinking methylated spirits and by hanging himself. The respondent felt anger towards his mother because she had not been able to stop the violence. He was socially isolated.
In 2000 after running away from home and living on the streets in Auckland, the respondent was returned to the care of his paternal grandparents. Although at the time the Children Youth and Family Services expressed concerns about the respondent’s home environment, his welfare was not further followed up.
The respondent’s grandparents lived close to his parents. From the time he left his parents the respondent’s interaction with them was limited but the parents visited the grandparents’ house regularly about twice a week and on such visits the respondent felt threatened by his father.
In January 2001 the father chased the respondent’s younger brother to the grandparents’ house. The respondent intervened. The father chased him and grabbed him by the throat, pushing him against the wall. The respondent broke free and struck his father. It appears that was the first time he had fought back.
The respondent was frightened by a particular look of hatred which his father would give him. The look is confirmed by his paternal grandmother. While living with his grandparents, the respondent continued to be frightened of his father. He kept a hammer in his room in case “anything happened”.
The evidence given at trial indicated that intrusive thoughts of the violence he had suffered entered the respondent’s head whenever he was not occupied. The experts described a degree of obsessive thinking triggered by a range of events. The respondent appears to have been subject to chronic anxiety, fear and anger. It appears from the evidence that from a very young age he had thoughts of killing his father to “get him out of my head”. The respondent continued to be socially isolated. He appears not to have been able to develop any coping mechanism beyond his thoughts of removing his father to escape the thoughts of the violence he had suffered and his fear.
On the day before the death, the respondent’s father visited the grandparents’ house. The respondent’s evidence was that he gave him the look which the son associated with violence and the threat of violence.
The next day the respondent obtained the key to his grandfather’s gun cabinet and checked that he had access to a shotgun. After dark he took the shotgun and walked to his parents’ home, through farmland. The walk is estimated to have taken about 20 minutes. On the way, he checked that he understood the mechanism of the gun and loaded it. When he reached his parents’ house, the respondent waited outside for approximately an hour and a half. While the respondent waited, he dwelt upon the violence he had been subjected to. He later told the psychologist who gave evidence on his behalf that on the day of the killing he felt he had got to the stage where he did not care any more and felt he had nothing to lose any longer.
After waiting outside and thinking about the violence he had suffered and in particular one of the worst beatings he had been given, he reported “it came back to me where I was standing outside and I just said ‘fuck it’ – do it”. He told the report writer that he then walked into the house. He entered his parents’ room. As his father got out of bed asking what he was doing, the respondent replied “I am going to fucking kill you”. He then fired the shotgun at close range into his father’s chest. The wound was fatal.
After shooting his father the respondent left the house and discharged the shotgun several times into the air. His mother and brother in the meantime barricaded themselves in the bedroom. The respondent returned, threatening to shoot the place up if he was not given the keys to the car. He attempted to kick his way into the bedroom but left after the keys to his father’s vehicle were slid under the door. He left in the vehicle and was captured soon afterwards by the police at a roadblock.
The respondent frankly acknowledged the events which led to the death of his father in a video interview which took place immediately after he was taken to the police station.
The sentence in the High Court
The trial Judge accepted the evidence at trial from Dr Gail Ratcliffe, a clinical psychologist that the respondent was suffering from post traumatic stress disorder at the time of the homicide:
I am of the view that at the time you were in fact deprived of the power of self control and induced to commit the act of homicide within the meaning of the law. That finding by me is reflected in the findings which the jury reached in finding you not guilty of murder, but guilty of manslaughter.
The Judge referred to the references which attested to the respondent’s positive features. A teacher described him as having great talent and as being “a fantastic young man”. That comment was mirrored by the probation officer’s report which quoted staff at the residential unit in which the respondent had been living since charged with the offence. A psychiatric report assessed the respondent being as of low risk of harm to others in the future. The Judge appears also to have been influenced by the probation officer’s assessment that the respondent might be at risk if sent to a mainstream prison.
The Judge took into account the fact that the commission of the offence involved a home invasion, while indicating that such factor should not have the weight required in cases of invasion by a stranger or outsider into the sanctity of the home of another. He accepted that the offence was one of serious violence to which the provisions of s5 Criminal Justice Act 1985 applied. He took the view, however, that there were special circumstances which made it inappropriate for a full time custodial sentence to be imposed:
[24] In this case I find that there were special circumstances relating to the offence and the offender. I have already described the circumstances of the homicide and the background circumstances and the evidence of Dr Ratcliffe as to your mental disorder and to what triggered, as it were, and caused your actions. They were special circumstances. Do they outweigh the other factors so as to make custodial sentence of imprisonment inappropriate? The main other factor is the nature of the offence, a homicide, the killing of one person by another. The court upholds the sanctity of life, the preciousness of life, the protection of life. The community rightly condemns violence. The community wishes sentences to be imposed that will prevent violence by deterring it. I take those factors into account.
[25] However, I consider the underlying circumstances of this case was as said by your counsel to the jury in opening the case, that you were driven to kill. You were otherwise a person of excellent character. There has never been any disorderly behaviour in your life, nor any other manifestation of violence except that one episode in which you stood up to your father. Weighing all the factors up I consider that the special circumstances of the offence and offender are such as to outweigh the other factors and I do not consider that a sentence of imprisonment is appropriate.
Supervision had been recommended by the probation officer as an alternative to imprisonment. The Judge accepted that the interests of “the community, you and your family” were best served by that sentence. He imposed the maximum period of supervision permitted and imposed special conditions “to ensure that those who wish to help you are able to help you and that you know the parameters in which you are to put your life together over the next two years”. The special conditions imposed were:
1.You are to reside with [a social worker connected with the family] or at a address as directed by your supervising Probation Officer and you are not to move from that address unless directed or given permission to do so by your supervising Probation Officer.
2.You are to undertake psychological assessment and counselling or any other appropriate counselling as directed by your supervising Probation Officer.
3.You are to continue with home schooling as directed by the supervising Probation officer or to attend a school with permission sought in advance from the supervising Probation Officer.
4.You are to have no direct or indirect access to firearms.
5.You are to abstain from all forms of drugs and alcohol.
The psychiatrist who reported to the Court on sentencing, Dr Bird, remarked upon the respondent’s continued maintenance that his actions were justified. He did not express any regret for what had happened, rather expressing and surprise that he had managed to accomplish his father’s death. Such thinking, the psychiatrist believed to show limitations in the respondent’s “capacity to consider alternative strategies to resolve conflict”.
Mr Pike suggested that the true culpability of the respondent, on the expert evidence, fell somewhere between the picture of a young man, badly abused, who decided on murder to remove the memories of abuse and who worked himself up to the necessary resolve to accomplish it and a person driven by the inability to drive out thoughts of his father’s violence and to suppress his anger.
The appeal
The Crown submission on the appeal is that the sentence constitutes insufficient recognition of the need for accountability where there is resort to lethal violence and the intentional taking of life. It was submitted that the sentencing Judge over-emphasised the factors personal to the respondent, which went to explain the killing, “at the expense of other social values protected by law”. The principal objective of the law of culpable homicide was said to be deterrence, in the protection of the sanctity of human life. It was accepted by Mr Pike that the authorities, Rongonui [2000] 2 NZLR 385, Wang [1990] 2 NZLR 529, Albury-Thomson (1998) 16 CRNZ 79 and Campbell [1997] 1 NZLR 16, indicate a range of approaches available to the sentencing Judge. It was submitted however that the sentence should not overlook the social values of accountability and protection of the public. In the circumstances, it was submitted that a non-custodial sentence was inadequate response to a planned and intentional killing without immediate trigger from the victim, even if undertaken as a coping or survival mechanism. It was submitted that a custodial sentence of at least 2 years would have been appropriate and merciful.
Counsel for the respondent submitted that in the case of post traumatic stress disorder, there is often no isolating trigger for violence. The evidence indicated that the respondent could see no way out of the thoughts which overwhelmed him. They had a life of their own. The trial Judge had the advantage of having heard the evidence and his assessment that the respondent was “driven” to kill should be accepted. Counsel for the respondent referred to a number of decisions of this Court which emphasise its reluctance to interfere with the exercise of sentencing discretion on Solicitor-Generals appeals, particularly where a community based sentence has been imposed (see R v Donaldson (1997) 14 CRNZ 537, 550; R v Fate (1986) 16 CRNZ 88).
Decision
This Court has declined to adopt a sentencing register for manslaughter (see R v Leuta and Rauf [2002] 1 NZLR 215. Such approach reflects the wide variety of circumstances in which a verdict of manslaughter may be made. No two cases are entirely alike. R v McCarthy (High Court, Auckland, T981197, 25 November 1998, Nicholson J) has some parallels. It too concerned the manslaughter by shooting of a bullying father by a 14 year old son. The sentence imposed was 18 months imprisonment, suspended, with two years supervision. In that case, however, the discharge of the firearm was not deliberate and the son had insight into the enormity of what he had done and was deeply remorseful. In the present case, the respondent planned the killing of his father and carried it through deliberately. He has expressed no particular remorse for his actions and seems to be at this stage unable to comprehend or take responsibility for his culpability. His actions resulted in the loss of a life in horrific circumstances and to the suffering of his mother and family.
We accept the submission of the Crown that the sentence of 2 years supervision was inadequate to reflect the culpability of the appellant and the need to denounce and deter similar actions. It sends out a wrong message about the value of life and the obligations of restraint society imposes through law. A sentence of imprisonment was the only adequate response on the facts of the offence. We consider that a merciful sentence, which properly recognised the diminished culpability of the respondent and the mitigating features could well have been in the range of 3-4 years imprisonment. Because this is a Solicitor-General’s appeal and because the Judge, who had the advantage of hearing the evidence, clearly thought that an exceptional approach was warranted, we accept the submission advanced on behalf of the Crown that a sentence of 2 years imprisonment would meet the case.
At 2 years, the sentence is within the range at which suspension is available. We are of the view that the personal circumstances of the respondent identified by the sentencing Judge make it appropriate to suspend the term of imprisonment and impose a sentence of supervision with the special conditions imposed in the High Court. The circumstances which influence us in coming to that determination are
the psychological assessment that the respondent did not have the normal coping mechanisms to be expected respondent because of the violence he had suffered and his social isolation.
the respondent’s youth and qualities, which suggest that he can be assisted to rehabilitate himself into the community.
the support of the respondent’s family and wider whanau and the need to avoid further distress to them.
the assessment that the respondent is a low risk of further offending.
the likelihood that the respondent will gain insight into his conduct and develop the skills he needs to be fully reconciled with his family only through the assistance and contact available to him in the community.
the concern that serving a term of imprisonment could be harmful to the respondent.
the reluctance identified in R v Donaldson to overset expectations by the substitution of a custodial sentence for a community-based sentence. In particular, we are concerned at the impact upon this young man if he is required to adjust to a custodial sentence having gained the understanding at the end of what must have been a very stressful trial, that he was to be returned to the community.
For these reasons, leave to appeal is granted and the sentence of 2 years supervision is quashed. In substitution, the respondent is sentenced to 2 years imprisonment, suspended for 2 years and to supervision for 2 years with the special conditions that the respondent:
1. live where directed by the supervising probation officer.
2.undertake such psychological assessment and counselling or other appropriate counselling as directed by the supervising probation officer.
3.continue with such schooling as directed by the supervising probation officer.
4. have no access to firearms.
5. abstain from all forms of drug and alcohol.
Solicitors:
Crown Law Office, Wellington