Turi v R
[2014] NZCA 254
•18 June 2014 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA690/2013 [2014] NZCA 254 |
| BETWEEN | HARLEM RAWIRI TURI |
| AND | THE QUEEN |
| Hearing: | 27 May 2014 |
Court: | Harrison, Ronald Young and Simon France JJ |
Counsel: | C W J Stevenson for Appellant |
Judgment: | 18 June 2014 at 12.30 pm |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe sentence imposed in the High Court of eight years and three months imprisonment with a minimum period of imprisonment of four years and three months is quashed.
CIn substitution a sentence of six and a half years imprisonment with a minimum period of three years and three months imprisonment is imposed.
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REASONS OF THE COURT
(Given by Harrison J)
Introduction
Harlem Turi was found guilty of the manslaughter of Michael Mulholland following a trial before Dobson J and a jury in the High Court at Wellington. He was convicted and sentenced to eight years and three months imprisonment with a minimum period of imprisonment of four years and three months.[1] He appeals only against his sentence.
High Court
[1]R v Turi [2013] NZHC 2411.
One evening in September 2012 Mr Turi and an associate, who had been drinking together earlier, visited Mr Mulholland in Lower Hutt. He was well-known locally as a drug dealer. Both visitors were affiliated to the Mongrel Mob gang. Mr Mulholland advised that he was unable to oblige their request for some methamphetamine. Mr Turi’s associate responded by punching Mr Mulholland, not for the purpose of causing harm but apparently to scare or intimidate him into supplying drugs.
When sentencing Mr Turi, Dobson J described what happened next as follows:
[6] You then followed suit, inflicting a number of blows to Mr Mulholland’s head and neck. Your assault caused significant injuries including fractures to nasal bones and to the orbital socket around one of Mr Mulholland’s eyes, together with abrasions elsewhere on his face and a break to thyroid cartilage in his neck. Mr Mulholland bled quite profusely, with blood in both the kitchen and bathroom of his house.
…
[9] Your assault on Mr Mulholland did not force him to produce any methamphetamine and you left the house shortly after inflicting the beating. The injuries you inflicted were not, in themselves, fatal.
[10] On your way down Mr Mulholland’s driveway, you confronted Ms Moss, snatching $100 out of her hand, and proceeded on to another address on Farmer Crescent.
[11] For her part, Ms Moss went into Mr Mulholland’s house and observed him with a badly beaten face and in an apparently distressed state. Mr Leaf stayed behind to help clean Mr Mulholland up and shortly after that Mr Mulholland was able to drive himself a short distance down Farmer Crescent to another address. There he got out of his car and began a conversation with Mr Taurima, but shortly after that collapsed and died. It transpired that Mr Mulholland had a severely weakened heart and I am satisfied that the shock of your assault on him was a substantial and contributing cause of the heart attack from which he died.
Dobson J adopted a starting point for Mr Turi’s sentence of seven years and three months imprisonment.[2] He applied an uplift of one year on account of Mr Turi’s previous record of violent offending for which, at the age of 32 years, he had already served 13 terms of imprisonment.[3] Mr Turi was not entitled to any discount. The appropriate end sentence was eight years and three months.
[2]At [31].
[3]At [32].
In setting the base starting point the Judge applied two complementary approaches. On one approach he compared the circumstances of Mr Turi’s offending with sentences imposed by the High Court in eight other manslaughter cases,[4] and by this Court in R v Tai.[5] As a result, he assessed seven years imprisonment as the appropriate starting point.
[4]R v Larson HC Dunedin CRI-2011-012-1013, 6 July 2011; R v Grafton HC Christchurch CRI-2010-009-16104, 23 November 2011; R v Ioata [2012] NZHC 3389; R v Matautia HC Auckland CRI-2006-092-13486, 29 November 2007; R v Sullivan HC Wellington CRI-2009-485-86, 10 February 2010; R v Hughes HC Whangarei CRI-2005-088-4349, 11 May 2007; R v Clarke HC Rotorua CRI-2009-270-73, 29 May 2009; R v Stewart [2013] NZHC 126.
[5]R v Tai [2010] NZCA 598.
On the other approach, which he described as a cross check, the Judge applied the sentencing bands formulated by this Court in its guideline judgment for grievous bodily harm offending in R v Taueki,[6] supplemented by an allowance for the more serious consequence of death.[7] He fixed the starting point within the median of what is known as band two in Taueki, at between seven and seven and a half years.[8] He settled on seven years and three months.
Appeal
(a) Factual findings
[6]R v Taueki [2005] 3 NZLR 372 (CA).
[7]R v Turi, above n 1, at [24]–[30].
[8]At [30].
Mr Stevenson challenged the Judge’s base starting point on two grounds. The first was to question the Judge’s factual findings on the injuries suffered by Mr Mulholland. The Judge found that Mr Turi was responsible for a reasonably substantial beating to Mr Mulholland’s face, inflicting a number of blows to his head and neck and causing serious injuries. In addition to breaking Mr Mulholland’s nose, which Mr Stevenson accepted, the Judge found also that he fractured Mr Mulholland’s orbital eye socket and thyroid cartilage in his neck.
In Mr Stevenson’s submission, the Judge was wrong to dismiss the reasonable possibility that Mr Mulholland suffered the orbital and thyroid injuries when falling on to the concrete driveway following his heart attack or while being attended afterwards. He said the Judge should only have sentenced on facts which he found proved beyond reasonable doubt, and wrongly rejected the evidence of an eye witness, Mr Taurima.
We are not satisfied that Dobson J erred in finding that Mr Turi’s assault on Mr Mulholland caused the orbital and thyroid cartilage fractures. The Judge enjoyed the special benefit of a full familiarity with the facts gained from the trial. Extensive expert evidence was led on the cause of Mr Mulholland’s death. The thrust of the conclusions of three pathologists was that it was highly unlikely Mr Mulholland suffered the orbital fracture when he fell on to the concrete driveway; or that medical or ambulance staff who attended Mr Mulholland were responsible for breaking his thyroid cartilage.
We agree with Mr Ebersohn’s submission that, while acknowledging Mr Mulholland may have suffered some minor injuries when falling, the experts were consistent in attributing his more serious injuries to a reasonably significant assault. The Judge had a proper evidential foundation for his factual findings and for rejecting Mr Taurima’s evidence to the contrary.
(b) Culpability
The question remains, however, whether Dobson J correctly assessed Mr Turi’s culpability for sentencing purposes. The crime of manslaughter presents a Judge with unique sentencing difficulties for two particular reasons. One is that death is the unintended consequence of an unlawful act. The other is because of the infinite variety of circumstances which may constitute the unlawfulness and combine to cause death. Some guidance is available from other cases. But ultimately the sentence is dictated by an evaluation of culpability within its particular context. In relation to this appeal it is apposite that the deterrent element of a manslaughter sentence must be directed towards the violence which created the risk of serious harm or death, not that unintended consequence.[9]
[9]R v Leuta [2002] 1 NZLR 215 (CA) at [63].
Dobson J compared Mr Turi’s offending with a range of “one punch” cases or those on a related spectrum of increased severity, where the victim died either from the force of a blow or blows to the head or from striking his head when falling onto a hard surface. Starting points in those cases ranged from between three and a half to seven and a half years.
In our judgment the one punch and related offending cases bear some but not decisive analogy with Mr Turi’s offending. It is true that Mr Turi’s assault was a substantial and contributing cause of Mr Mulholland’s death by triggering a chain of fatal events. But, unlike the one punch cases, it was relatively remote and indirect from Mr Mulholland’s death. To the extent that the one punch and related offending cases are analogous, Mr Stevenson correctly identified common starting points in the less serious cases of between three and a half and four years. He acknowledged that a moderate increase was appropriate in Mr Turi’s case to allow for the greater degree of violence.
We broadly agree with Mr Stevenson’s submission. Mr Turi’s offending had more in common with the sentences towards the bottom of the range surveyed by the Judge. We agree with the Judge that Mr Turi’s offending was more serious than in R v Larson and R v Grafton where starting points of three years and six months and three years and nine months respectively were adopted for one punch cases, albeit that the force applied in both was sufficiently powerful to knock the victim off his feet.
However, we disagree with the Judge that the increased severity of Mr Turi’s assault was sufficient to justify a starting point at the top of the range. Mr Turi’s offending is not of comparable severity to R v Clarke, for example, where a seven and a half year starting point was applied for what Venning J described as a “savage” assault inflicted on the victim by four young men.[10] One of them had knocked the victim to the ground, the others kicked and stomped him around the head and then, after he had returned to his feet, one knocked him to the ground again. While falling, the victim’s head struck the pavement, which proved fatal.
[10]R v Clarke, above n 4, at [2], [29].
Mr Turi’s culpability lay in punching Mr Mulholland around the head. Some of the punches were administered with sufficient force to cause three non-life threatening fractures. It was a serious beating but no weapons were used. In our judgment, taking into account the comparable High Court sentences, a starting point of five and a half years appropriately reflects Mr Turi’s culpability.
As noted, Dobson J cross-referenced the comparable manslaughter sentences to the Taueki guidelines. We doubt that that approach was available here. The Judge found that, because Mr Turi used sufficiently serious violence with an intention of causing serious harm to Mr Mulholland, the threshold for applying Taueki was met.[11] However, Taueki decided appeals against sentences on charges of wounding with intention to cause grievous bodily harm.[12] The tariff bands were set by reference to the maximum available sentence of 14 years imprisonment.
[11]R v Turi, above n 1, at [26].
[12]Crimes Act 1961, s 188.
Mr Turi’s offending did not fall into that category. And as this Court has previously observed, the Taueki guidelines must be used cautiously in manslaughter sentencing.[13] Mr Turi’s offending could not be classified as serious violence of the type where serious injury if not death was a foreseeable consequence.
[13]R v Jamieson [2009] NZCA 55 at [61].
Mr Stevenson properly emphasised that the Crown charged Mr Turi in the alternative with injuring with intent to injure.[14] As a consequence, Mr Turi would have been eligible to a maximum sentence of five years imprisonment if he had been acquitted of manslaughter. The jury’s guilty verdict on the more serious manslaughter charge is not attributable to the degree of violence used but solely to its finding that Mr Turi’s unlawful acts – on the Crown’s case, injuring with intent to injure – caused Mr Mulholland’s death. But a starting point well above five years cannot be justified by that factor, given its unintended nature.
[14]Crimes Act, s 189(2).
In our judgment, a starting point of about four years would have been appropriate if Mr Turi had been convicted of the lesser charge of injuring with intent to injure. The maximum possible allowance for the factor of death, even if unintended, would be an additional 18 months. By this methodology the starting point would also be five and a half years.
It follows we are satisfied that, with respect, Dobson J erred in adopting a base starting point of seven years and three months. In our judgment the appropriate starting point was five and a half years imprisonment. Mr Stevenson does not challenge the one year uplift applied by the Judge to recognise Mr Turi’s previous history of violence. The ultimate sentence which must then be imposed is one of six and a half years imprisonment.
It also follows that the minimum period of imprisonment of four years and three months must be set aside. An appropriate minimum period is three years and three months imprisonment, or 50 per cent of the original finite sentence.
In conclusion we acknowledge that Mr Turi’s offending presented a special challenge for sentencing purposes, which Dobson J addressed with particular care. Our difference from him is ultimately attributable to a value judgment about the degree of Mr Turi’s culpability arising from a unique, unforeseen and unfortunate set of circumstances.
Result
The appeal is allowed.
The sentence of eight years and three months imprisonment with a minimum period of four years and three months imprisonment is quashed. In substitution we impose a sentence of six and a half years imprisonment with a minimum period of three years and three months imprisonment.
Solicitors:
Crown Law Office, Wellington for Respondent
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