The Queen v Michael Westley Kumeroa
[2001] NZCA 153
•16 May 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA64/01 |
THE QUEEN
V
MICHAEL WESTLEY KUMEROA
| Hearing: | 16 May 2001 |
| Coram: | Blanchard J Doogue J Randerson J |
| Appearances: | S P France and M F Laracy for Crown P Brosnahan for Respondent |
| Judgment: | 16 May 2001 |
| JUDGMENT OF THE COURT DELIVERED BY RANDERSON J |
Introduction
This is an appeal by the Solicitor‑General against a sentence imposed on the respondent, Michael Kumeroa, in the High Court at Wanganui on 22 February 2001. The respondent and his brother, Kelvin Martin Kumeroa, both pleaded guilty to a charge of manslaughter arising from the death of a man on 24 June 2000. Kelvin was sentenced to six years imprisonment and the respondent to three and a half years imprisonment.
The facts
The incident occurred in Wanganui. Both Michael and Kelvin had been drinking that evening at a private party. Michael continued drinking in various bars in the central business area. It is evident that he was in an aggressive mood because he had become involved in various altercations including an attack on the driver of a motor vehicle. Kelvin came to his aid during this incident. Both of them then went into Victoria Ave where Michael began to chase some people he had been fighting with earlier in the evening. The victim and some of his friends were walking in the opposite direction but one of their group saw the chase and foot‑tripped Michael as he ran past, causing him to fall to the ground. Michael got to his feet and hit the victim in the face with his fist causing him to fall to the footpath. Kelvin then became involved and kicked the victim in the head. While he was doing that, Michael also kicked the victim in the head and the body a number of times. We were told from the Bar that the kicking was initiated by Kelvin but both were clearly involved. A police car arrived at that point but the victim was already unconscious. He died in hospital the following evening.
The number of kicks was not large and death arose from a relatively unusual cause, namely a kick or blow to the carotid artery. Otherwise, there were no significant injuries. While a person kicking the head of a victim may be expected to anticipate the risk of death in some circumstances, that prospect may have been a relatively unexpected result in this case. In fact, both accused were discharged on murder counts under s 347. Michael indicated he would plead guilty to manslaughter prior to depositions.
Initially Michael denied any involvement when spoken to by the police but later admitted the facts.
The sentence in the High Court
After referring to the facts, the Judge referred to the victim impact reports from the victim’s family. It was noted that those most closely affected were his widow and two small children. As well, the victim had four adult children, his sister and her family, and his mother and father, all of whom were seriously affected by his death. As the Judge said, a feature of the case was that the victim was an innocent by‑stander and was a non‑violent man. The Judge was sufficiently concerned about the effects on the family to suggest that Kelvin and Michael should read the victim impact reports again and expressed the hope that, with the assistance of the probation officer, they might write a letter of apology to the family. The Judge accepted that both Kelvin and Michael were genuinely remorseful.
The Judge observed that both men were substantially affected by alcohol and probably by cannabis as well. He considered that Michael had no excuse for fighting that evening and that there was nothing said or done by way of provocation that could have justified what he did. He concluded that the reason for the assault was “uncontrolled anger with inhibitions dulled by alcohol and drugs, vented on an innocent by‑stander”.
The Judge then considered the personal circumstances of each man. He noted that Kelvin was 20 and that Michael was 16 at the time of the offending. In fact, Michael was only a few weeks short of his 17th birthday at the time. The Judge referred to the fact that each was brought up in a violent and abusive family. Although Kelvin had what the Judge described as a formidable list of prior offending (eight for assault and violence, seven driving offences, four cannabis related, and six for dishonesty), Michael had no record of criminal offending apart from some minor matters for which there were outstanding fines.
The Judge referred to two significant features of Kelvin’s position from the sentencing viewpoint. The first was that in 1996 he was convicted of a very similar assault involving punching and kicking a victim on the ground and had for a long time exhibited both aggressive and depressive behaviour. The Judge noted a psychiatric report prepared in 1998 which stated Kelvin suffered from serious problems, not of his own making, which could trigger loss of control. He had improved considerably since 1996.
The Judge then turned to consider the sentencing range, noting that there were no guidelines for sentencing for manslaughter because the facts of each case differed so widely. The Judge referred in particular to R v Ralm (CA.32/93, 5 October 1993) where a nine year sentence was imposed on an offender aged only 16. The Judge considered that Ralm was more serious than the case before him. We agree. The Judge also referred to other cases where sentences ranging from two to seven years imprisonment had been imposed.
The Judge then concluded:
In this case there is plainly a need for a sentence which will protect the public from such uncontrolled anger. On the other hand the age of each offender requires a chance of rehabilitation and that is not to be put out of the offenders’ reach. Again the need for deterrence is to be balanced against the natural compassion due to two young men who themselves suffered much as innocent children. I think the appropriate starting point for sentencing is a term of 7 years’ imprisonment. A proper deduction should be made to recognise the guilty pleas albeit later in the piece. I bear in mind that the challenge to the statements and the absence of an earlier plea owe something to the fact that each was initially charged with murder.
After declining to impose an indeterminate sentence or a non‑parole period for Kelvin, the Judge's concluding paragraph was:
I bear in mind therefore the mitigating and aggravating features I have referred to especially the abuse each has suffered as a child and of course Michael’s youth. Taking all factors into account Kelvin is sentenced to 6 years’ imprisonment and Michael is sentenced to half the start point, 3½ years’ imprisonment.
Grounds for appeal
The Solicitor‑General submits that the sentence of three and a half years imprisonment for Michael Kumeroa was inadequate in that:
[a]It failed to reflect his leading role in the offending.
[b]It failed to adequately reflect the loss of an innocent life and the loss to the victim’s wife, his two young children, and his older children.
[c]It was inadequate to reflect society’s condemnation of street violence of this kind.
[d]It gave too much weight to the appellant’s age and issues of rehabilitation.
It was submitted that while some differentiation between the two was appropriate, the disparity was too large and Michael’s sentence should be increased from three and a half years to five years. It was submitted that this would leave a sufficient difference between the two, would not ultimately impact on any rehabilitation prospects, and would better reflect the seriousness of the offending.
For the Crown, Mr France accepted that the sentencing Judge took into account all relevant factors. The submission however was that the resulting sentence was manifestly inadequate in the circumstances. There was no specific challenge to the Judge's starting point of seven years. Rather, the submission was that the discount to three and a half years was substantially too great to reflect the mitigating circumstances.
Analysis
The first matter raised by the Crown was that the sentence failed to reflect Michael’s leading role in the offending. While it is true that Michael was the aggressor and was responsible for the initial striking down of the victim, Kelvin as the older brother took no steps to restrain Michael and indeed, seems to have initiated the kicking of the victim on the ground which both brothers then indulged in. The actual degree of violence, while serious, was not prolonged or aggravated by other circumstances such as the use of a weapon. We also note the relatively unusual cause of death and the lower level of culpability which that necessarily entails.
As to the loss of life and the effect on the victim’s family, the Judge was very alert to that issue and a substantial portion of his sentencing remarks deals with his concerns in that respect. Plainly, the loss of life and the serious impact that clearly had on the victim’s family is not to be underestimated. However, it must be balanced with other factors.
We accept that any sentence for manslaughter must reflect society’s condemnation of this type of street violence. However, the sentence of six years imposed on Kelvin, having regard to his relative maturity and prior convictions, adequately addresses society’s proper concerns in that respect.
We do not consider the Judge gave too much weight to Michael’s youth and issues of rehabilitation. At the age of just under 17 at the time of the incident, he was not fully mature. The Judge was entitled to take into account the serious family history of violence and abuse, and the lack of any prior convictions of any significance. We also note the salutary effect on Michael of being placed in custody prior to his sentence. The probation officer observed that during this period, Michael was taking positive actions in a number of areas and had recognised his need for anger management.
Mr Brosnahan for the respondent submitted that the sentence was well within the available range in the circumstances and emphasised that the sentencing Judge was very familiar with all aspects of the case, having viewed the lengthy videotaped interviews which the police conducted with each of the accused. The Judge had also fully reviewed the evidence during the course of the s 347 application. Mr Brosnahan also submitted that the Judge was entitled to take into account the influence which Michael’s older brother had on him and the obviously poor example which had been set for him both by his brother and by his family. He also drew attention to the relatively low level of violence compared with some cases of manslaughter and the unusual cause of death. He was also entitled to credit for his remorse which the Judge accepted as genuine.
Mr Brosnahan submitted that Michael was entitled to some credit for his guilty plea. We agree some credit was warranted on that account but not to a substantial extent given the virtual inevitability of a conviction for manslaughter in the circumstances of the case. However, Mr Brosnahan is on firmer ground in submitting that it was open for the Judge to make a substantial allowance for the youth of the offender, his lack of previous convictions, and his prospects for rehabilitation.
Relevant authorities
It is common ground that there are no firm sentencing guidelines in manslaughter cases because culpability varies from case to case. As Gault J observed in R v O’Sullivan (CA.340/93, 15 December 1993) at 4, manslaughter may involve:
... conduct which, at one end of the scale, results in death from little more than an accident or mischance to the other end where death is inflicted in circumstances which can barely be distinguished from murder.
We also note the decision of this Court in Solicitor‑General v Kane (CA.154/98, 23 September 1998) in which an application by the Solicitor‑General for leave to appeal against a sentence of four years for manslaughter was refused. There, the respondent was a man of 26 years of age and had stabbed the deceased during the course of a fight. There was evidence that the respondent had been set upon by the deceased and another person. As a result, the respondent received a severe blow to his neck. In the course of the attack, the respondent had picked up a knife which the Judge accepted was a tool relating to his work. He stabbed the deceased twice, once in the chest with considerable force, and the second time in the leg. The respondent had no previous convictions, was regarded as a model worker, and a number of testimonials had been produced testifying to his good character. Like the present case, it was one where the effect on the deceased’s family had been devastating.
In his sentencing remarks, the Judge in Kane accepted the respondent had acted in self defence although the force he used was clearly excessive. It was also accepted that the respondent was not the instigator of the fight and that the use of the knife was not pre‑meditated. The respondent had acted on the spur of the moment while being attacked by the victim and the other person.
This Court indicated that it would adhere to the views expressed in O’Sullivan and rejected any attempt to introduce into manslaughter cases firm sentencing guidelines based on categories.
With regard to the issue of loss of life, this Court said at 9:
The loss of a life is invariably serious. As indicated many times over in the judgments of this Court, the sanctity of life is a fundamental value and society demands that the taking of a life be met with the appropriate condemnation. But, again, what is appropriate by way of sentence must be related to the circumstances of the particular offence and the particular offender. Recognition of the sanctity of life and the expression of society’s condemnation at the taking of life is not necessarily reduced if the particular circumstances warrant a more lenient sentence than might otherwise be thought appropriate.
Having concluded that the sentencing Judge had proper regard to the relevant factors, the Court concluded that the sentence was not inadequate.
Conclusion
We have reached the same view on the particular facts of the present case. While it may be that the sentence could be regarded as lenient, it was not unduly so and it was one which we regard as open to the Judge on the facts as presented. We accept the submission that the Judge was very familiar with the relevant facts and we consider he had proper regard to the aggravating and mitigating circumstances.
We are not satisfied that the sentence is manifestly excessive and the Solicitor‑General’s application for leave to appeal is refused.
Solicitors:
Crown Law Office, Wellington
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