Waipuka v R
[2013] NZCA 661
•17 December 2013 at 10:00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA123/2013 [2013] NZCA 661 |
| BETWEEN | NICHO ALAN TAMATI WAIPUKA |
| AND | THE QUEEN |
| Hearing: | 18 November 2013 |
Court: | Randerson, Heath and Asher JJ |
Counsel: | P V Paino and S M Bolland for Appellant |
Judgment: | 17 December 2013 at 10:00 am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Introduction
The appellant and an associate were tried by a jury in the High Court for the murder of Phillip Cottrell on 10 December 2011. The appellant was acquitted of murder but convicted of manslaughter. He was later sentenced by the trial Judge, Miller J, to imprisonment for 12 years and 10 months with a minimum period of imprisonment of eight years six months.[1] The associate was acquitted.
[1]R v Waipuka [2013] NZHC 221.
The appellant now appeals against his sentence on three bases:
(a)The 15 year starting point for his sentence was excessive.
(b)The uplift of 12 months adopted by the Judge to recognise the appellant’s previous convictions was excessive.
(c)The minimum period of imprisonment should have been no more than 50 per cent of the finite sentence.
At trial, the appellant admitted causing the death of the victim but denied murder. He accepted he had punched the victim once and contended that his death arose from the victim hitting the pavement or kerb in the street where the assault took place. The Crown’s case was that the victim’s death resulted from a punch followed by kicking or stomping to the head and arms.
A complicating factor was that the victim suffered from a rare condition known as osteogenesis imperfecta. This is a defect in collagen which has the effect of making bones brittle. There was conflicting evidence from medical witnesses called for the Crown and, at sentence, it was necessary for the Judge to make findings of fact for sentencing purposes. Mr Paino submitted that the way in which the Crown’s evidence on this subject was led and the sentencing process was unfair.
Background
On Friday 9 December 2011, the appellant and his co-accused, Mr Robinson, travelled into Wellington city from the Hutt Valley at about 10.00 pm. The Judge found that the appellant was intoxicated and was looking for fights. He boasted to friends that he was keen to knock someone out. Referring to an incident earlier in the evening, the Judge found that the appellant’s boast was no idle statement. Later, the appellant went to an apartment on The Terrace spending some time with two young women. He left the apartment in the early hours of the morning and walked downtown. He made three failed attempts to withdraw money from his bank account.
The appellant then began walking back towards the apartment on The Terrace, his route taking him up the western side of Boulcott Street. The appellant encountered a passerby and challenged him. As the Judge found, the appellant was seeking a pretext to attack him. That did not occur but a few seconds later the appellant and Mr Robinson encountered Mr Cottrell, a journalist who was making his way home from work at about 5.30 am down the opposite side of Boulcott Street. He was carrying two wallets, one of which contained $80. The appellant challenged Mr Cottrell who, the Judge found, did nothing to provoke the appellant. Despite that, the appellant crossed the street and attacked Mr Cottrell. Mr Robinson probably remained on the other side of the street. As a result of serious head injuries, Mr Cottrell later died in hospital despite emergency surgery.
Much of Boulcott St is covered by CCTV cameras but none of these captured the attack itself. The Judge found that the footage indicated that the appellant and Mr Cottrell may have been in the same place for as little as eight seconds. He acknowledged, however, that this rested on the questionable assumption that everyone moved at all times at the same pace as they did when they passed through the CCTV fields of view. The Judge described the attack as swift and brutal. He said Mr Cottrell suffered “terrible injuries”. His skull was shattered into many pieces and his wrist and upper arm were badly broken.
The facts found at sentencing
Prior to sentencing, the Judge issued a minute in which he said he was provisionally disposed to sentence on the basis that the appellant not only punched Mr Cottrell but also kicked or stomped him twice (once to the head and once to the arm). The Judge said that this view of the facts was available because it was consistent with the jury verdict. The conviction for manslaughter rather than murder was, the Judge considered, most likely explicable on the basis that the jury was not sure that the appellant subjectively appreciated his actions might result in Mr Cottrell’s death. The Judge also signalled that the Court would need assistance about how, and to what extent, it was proper to take into account the appellant’s motives of robbery and his propensity for violence. These issues related to the extent to which a protective sentence was appropriate.
The need to resolve factual issues arose because the Crown pathologist, Dr Feeney, expressed the view during her evidence-in-chief that the injuries sustained by Mr Cottrell were possibly explained by his being hit on the chin or the chest and then falling down and impacting with the footpath. Dr Feeney had not expressed any view in her written report provided to the Crown and defence about how the injuries were sustained. We were informed by Crown counsel that the prosecutor did not become aware until after the trial had commenced that Dr Feeney was prepared to express a view on how the injuries were sustained.
The Judge did not find Dr Feeney’s opinion persuasive. He preferred the evidence of Mr Hunn (the neurosurgeon who performed an emergency operation soon after Mr Cottrell’s injuries) and the evidence of Mr Willis (an orthopaedic surgeon who provided an expert opinion as to the probable causes of the arm fractures Mr Cottrell sustained). The Judge was satisfied to the criminal standard that the appellant inflicted not only the single punch he admitted, but also one kick or stomp, which shattered Mr Cottrell’s skull as he lay on the ground and one kick that broke his arm. The Judge considered there may have been other blows as well.
The reasons the Judge gave for preferring the evidence of Mr Hunn and Mr Willis may be summarised:
·He accepted Mr Hunn’s view that the fracture and associated injury to the skin and scalp were caused by an object such as a shoe, not the near-flat and smooth surface onto which Mr Cottrell fell.
·This was consistent with the evidence of Mr Willis that the badly broken upper arm was not consistent with a fall, although the shattering of the victim’s wrist was consistent with that.
·Both Mr Hunn and Mr Willis were very familiar with the type of gross trauma suffered by Mr Cottrell. Both considered that real force would have been required to cause such injuries notwithstanding Mr Cottrell’s medical condition.
·Although none of the expert witnesses had previously dealt with a patient with this condition, Mr Hunn’s evidence was that the skull thickness at the point of impact was up to one centimetre and that, when he operated on Mr Cottrell, the bone felt normal: that is, strong and tough.
·Although Dr Feeney’s opinion commanded respect, the Judge did not find it persuasive since it appeared to have been formed at a late stage.
The Judge concluded that Mr Cottrell had been punched in the face which caused him to fall to the ground. He fractured his wrist as he broke his fall. Only then, was the fatal injury inflicted by the kick or stomp to Mr Cottrell’s head as he lay on the ground.
The Judge said his conclusions were supported by three other parts of the evidence:
·The appellant had admitted kicking Mr Cottrell in the head. He had made this admission to the young women at the apartment after the attack and had demonstrated to them using a kicking action with a lot of force. He had also admitted to his partner that the attack had involved kicking although he told her that it was Mr Robinson who had done it.
·The appellant had claimed earlier in the evening that he wanted to knock someone out.
·By the time the appellant delivered the fatal blow, he intended not merely to beat Mr Cottrell but to rob him. That required Mr Cottrell to be disabled so he could not resist. It was utterly implausible that the appellant had suddenly formed the intention to rob him after delivering the fatal blow.
Having reviewed the evidence of the expert witnesses and having regard to the appellant’s admissions to others, we are satisfied that the Judge’s conclusions on the facts were not only available but were justified. We note that Mr Hunn accepted that Mr Cottrell’s medical condition may have played a role in the extent to which the skull fractured but he maintained the view that significant force would nevertheless have been required to result in the degree of fracturing encountered.[2]
[2]Notes of Evidence at [401] and [402].
The nature and extent of Mr Cottrell’s injuries also support the Judge’s conclusion. Mr Cottrell was a slightly-built man. The fatal injury was a significant impact to the left side of his head that resulted in a four centimetre laceration of his scalp. Underneath this laceration, his skull had essentially shattered into 21 fragments with additional multiple fractures radiating across the skull in different directions. The fractures were associated with substantial brain injury and bleeding, which meant that the injuries were unsurvivable. Mr Cottrell had also suffered fractures of the upper spine, a bruise and associated laceration to the underside of his chin; bruising in the mouth indicating impact to the teeth and lips; injury to the collarbone indicating possible hyper-extension of the neck, possibly related to the impact to the chin; bruising of the left forehead above the eye with associated swelling; fragmented fractures of the left upper arm, elbow and forearm; and two areas of bruising to the chest.
We also note that Mr Hunn was clear in his evidence that the proposition that Mr Cottrell’s injuries were caused when he hit the pavement or kerb after a single punch was “a highly implausible scenario”.[3]
[3]Notes of Evidence at [405] and [406].
We do not see any unfairness to the appellant in the way the Judge dealt with the factual findings at sentencing. The fact that Dr Feeney’s view on the cause of death was not notified to either counsel prior to the trial was less than ideal. As Mr Paino pointed out, by the time her evidence was given, Mr Hunn had given his evidence and, we understand, had left the country. It was not therefore possible to recall him and no attempt was made to do so. However, if there had been any unfairness, the Judge gave counsel the opportunity to remedy this at the time of sentencing. By that stage, counsel could have sought an opportunity to have Mr Hunn and Mr Willis called for cross-examination. Mr Paino candidly acknowledged that his decision not to do so was for tactical reasons. He believed that the difference of medical opinion was sufficient to establish reasonable doubt as to how the injuries occurred. He now accepts, however, that it was open for the Judge to resolve the factual differences in this respect.
We also note that Mr Paino sought and obtained an adjournment of this appeal on 30 July 2013 on the basis that he wished to have the opportunity to confer with Dr Feeney. Having done so, Mr Paino acknowledged he did not seek to have her called for cross‑examination in this Court.
The Judge’s approach to sentencing
After resolving the factual issues relevant to sentencing, Miller J noted that the appellant had done nothing to obtain help for the victim; boasted to the young women at the apartment about what he had done; in an attempt to cover his tracks, he had asked his partner to give an alibi; and he appeared to have evaded the police until his arrest several days later. He had given no indication of remorse or acceptance of responsibility. Rather, when interviewed by the probation officer, he had sought to minimise his culpability.
The Judge considered the appellant’s culpability was very high. He found there were a series of aggravating features:
[16] … There are the dual motives of recreational violence and robbery, the associated element of premeditation, the vulnerability of the victim, in which I include not only his helpless state when you kicked him on the ground but also his medical condition, and the callousness that you exhibited immediately afterward.
The Judge did not consider that the appellant’s culpability was in any way reduced having regard to Mr Cottrell’s medical condition. While he accepted that the appellant did not know of this condition and that it could not be known whether Mr Cottrell might have survived the attack but for his condition, the Judge noted that the appellant had intended to knock Mr Cottrell out and rob him. He had deliberately kicked him in the head with that objective in mind and ought to have known that injuries of the type inflicted could kill or maim. In the Judge’s view, those who choose to offer violence of this kind should not be permitted to excuse themselves by claiming ignorance of the risk they are taking with someone else’s life or by pointing to some unexpected vulnerability of the victim.
The Judge noted that Mr Cottrell was 43 years of age at the time of his death. He was highly regarded by work colleagues and friends. The impact of his death on his family had been immense.
Addressing the appellant’s personal circumstances, Miller J observed that the appellant was 19 at the time of the crime. Pre-sentence reports painted a picture of a young man with no prospects and no interest in rehabilitation. There were gang connections; a problematic pattern of alcohol and drug abuse; and a substantial conviction history for a man of the appellant’s age. An earlier probation report had described the appellant as having “totally entrenched offending-supportive thought processes”. As well, his background showed that he had serious issues with anger and violence. The Judge considered this extended to the appellant’s enjoyment of violence, expressing the view that he used violence casually or to get what he wanted. The Judge could see nothing in the appellant’s background, attitudes or character to suggest he wanted to reform. He did not regard youth as a mitigating factor.
The appellant had 24 previous convictions since July 2009. They included three for offences of violence, two for resisting police and five for dishonesty. A significant factor was that the appellant was on intensive supervision at the time of the offence, having been sentenced in November 2011 in the District Court for a number of offences including assault and threatening to kill. In that earlier assault, the appellant had punched a victim in the head in a Lower Hutt street. In imposing a sentence of intensive supervision rather than imprisonment, Judge Mill warned the appellant that it was his last chance to avoid a prison sentence.[4]
[4]New Zealand Police v Waipuka CRI-2011-00-834, 1283, 22 November 2011.
The summary of facts for earlier offending in 2009 shows that the appellant, accompanied by two other males, had attempted to rob an Auckland hotel. The receptionist was threatened in circumstances where one of the group was holding a machete.
Miller J then embarked on a lengthy and considered discussion of sentencing in manslaughter cases and the possibility of imposing a sentence of life imprisonment. He observed:
[28] The few cases in which life imprisonment has been used for manslaughter exhibit two qualities: the crime was very close to murder,[5] or a protective sentence was needed because the offender presented a high risk of committing further serious offences of violence on the expiry of a fixed term sentence.[6]
[5]R v Wickliffe [1987] 1 NZLR 55 (CA).I note that in R v Witika [1993] 2 NZLR 424 (CA) the Court indicated that life would have been appropriate had it been clear which offender was the principal.
[6]R v Lory [2005] 1 NZLR 462 (CA).
On the other hand, the Judge noted that these sentences were old and that the Court had not imposed life imprisonment for manslaughter since the Sentencing Act was passed.
After discussion of more recent authority, the Judge said:
[35] This analysis leads me to the conclusion that while it would be a most exceptional thing to do, I might properly pass a sentence of life imprisonment upon you in this case. It might be warranted for several reasons. First, this case is very close indeed to murder. On the evidence the jury might well have drawn the inference that you did appreciate that what you did might kill. To say that is not to reject their verdict. Second, I have found that you deliberately did very serious harm to Mr Cottrell for the purposes of robbery and recreational violence. He was a mere passerby who, as Mr Burston said today, did nothing at all to put himself in harm’s way. The crime deserves special condemnation. Third, I think that you present a high risk of violent reoffending.
Miller J concluded, however, that it was not appropriate to impose a sentence of life imprisonment for three reasons. These were the fact that the appellant was 19 at the time of the offence; he could not be sufficiently sure that the appellant would still present a high risk of reoffending when he reached the expiry of a lengthy finite sentence; and the appellant had offered to plead guilty to manslaughter before committal which warranted a significant allowance.
After considering a range of authorities, the Judge concluded that the appropriate starting point was 15 years imprisonment. One year was added to the starting point for the appellant’s previous history and the fact that he was on intensive supervision at the time of the killing. A discount of 20 per cent was allowed for the offer to plead guilty resulting in a final sentence of 12 years and 10 months imprisonment. The Judge considered it beyond doubt that the case called for a minimum period longer than that which the appellant would otherwise serve before becoming eligible for parole. That was required for community protection and because the need for accountability and denunciation was exceptionally high. The minimum period required was two thirds of the sentence imposed, resulting in a minimum period of imprisonment of eight and a half years.
The starting point
In submitting that the starting point of 15 years imprisonment was too high, Mr Paino contended that there were no comparable manslaughter sentences where a starting point of that level had been adopted. By analogy with the bands of culpability in R v Taueki,[7] the offending fell within band two which would have attracted a sentence of between five and ten years imprisonment. Mr Paino submitted that no direct fracture was caused as a result of the punch to the victim’s chin; less force would have been required given the victim’s medical condition; the kick or stomp to the head was inflicted with lightweight shoes and the kick to the arm was not life threatening. He also submitted that the attack was not prolonged and premeditation was low. No group attack was established; there was no use of a weapon or other aggravating circumstances such as a home invasion. The starting point should have been around eight to nine years imprisonment.
[7]R v Taueki [2005] 3 NZLR 372 (CA).
This Court has repeatedly emphasised that there is no tariff for sentencing in manslaughter cases. It is a matter of assessing the culpability of the offending in the particular circumstances of the case. In R v Tai, this Court suggested that in manslaughter cases where R v Taueki is relevant, the sentencing judge effectively has a choice.[8] The offender’s culpability may be assessed by reference to comparable manslaughter sentencing or the case may be approached by considering it in Taueki terms, making an appropriate adjustment for the fact that death has ensued. A counsel of perfection might be to use both approaches, each providing a check on the other.
[8]R v Tai [2010] NZCA 598 at [12].
In this case, Miller J preferred to rely on comparable sentencings for manslaughter although he observed that a close comparison of cases was often unrewarding. Historically, starting points of around 15 years imprisonment have been adopted in more serious cases: R v Crutchley[9] and R v Leonard.[10] We accept that in each of those cases a weapon was involved but the key focus remains to consider the culpability of the offender in context. The use of extreme violence can be as serious as the use of a weapon.
[9]R v Crutchley (1989) 4 CRNZ 487 (CA).
[10]R v Leonard CA269/95, 6 September 1995.
In the present case, we find it helpful to consider the assessment of culpability in Taueki terms. We are satisfied that this case would plainly fit within band three in Taueki attracting a sentence in the nine to 14 year range. Band three would normally encompass serious offending which has three or more of the aggravating features identified in that case.[11] We accept Ms Markham’s submission for the Crown that this case reflected five and possibly six of the aggravating factors: unprovoked and gratuitous violence; serious injury; attacking the head; offending with a view to facilitating a robbery; the victim’s vulnerability (attacking him while on the ground); and at least a degree of premeditation.
[11]At [31] and [40].
In Taueki terms, we are satisfied that a sentence at the top end of band three would be appropriate. On that footing, and adjusting for the death that ensued, a starting point of 15 years imprisonment was available to the Judge. This Court will not lightly interfere with the sentence of an experienced judge who has had the distinct advantage of hearing all the evidence at trial. This is a case where the Judge has very carefully analysed all the surrounding circumstances and has concluded that the appellant’s level of culpability was very close to that attaching to a murder conviction. As the Judge noted, that would have resulted in life imprisonment with a minimum period of imprisonment in the 12–14 year range.
This case is a reminder that the maximum sentence for manslaughter is life imprisonment and that random acts of senseless and extreme violence resulting in death are likely to result in stern sentences in appropriate cases. This was such a case. On the Judge’s findings, it was far removed from the single punch manslaughter cases. Rather, as the Judge found, this was a brutal attack on a vulnerable victim by an offender who was looking for a fight. His conduct earlier in the evening clearly showed that he was looking to rob someone and he carried out his attack on Mr Cottrell with that objective clearly in mind. The victim’s family and friends and the community generally are rightly concerned that the courts should respond appropriately to conduct of this kind.
It may be that some High Court sentences in similar cases have been lower as Mr Paino submitted, but that should not necessarily deter a judge from sentencing at a higher level when his or her assessment of culpability is such that a serious sentence is warranted in the particular case. A comparison with the sentencing levels in Taueki may also lead to higher sentences than hitherto in some manslaughter cases.
The uplift for previous offending
Mr Paino submitted that no more than six months imprisonment was required to reflect the appellant’s previous offending. We have no difficulty in finding that the uplift of 12 months imprisonment for the appellant’s previous offending was entirely appropriate. His history shows that he has significant difficulties with anger and with the abuse of alcohol and drugs. Not surprisingly, this has led to a history of serious violence. While he had not previously been imprisoned, it could not go without notice that he was under final warning from the Court and was still serving a sentence of intensive supervision at the time of the offending.
The minimum period of imprisonment
Mr Paino submitted that the minimum period of imprisonment should not have exceeded 50 per cent. He emphasised that the appellant was 19 years of age at the time and was facing a lengthy sentence in any event. He submitted that the appellant had not previously committed serious violent offences. While his previous offending had been anti-social, his personal circumstances showed that he needed rehabilitative assistance. There was no evidence that he would not take advantage of such opportunities while in prison. The lengthy sentence imposed had provided sufficiently for the protection of the community and the need for accountability and denunciation, particularly when combined with a 50 per cent minimum period of imprisonment.
We are not disposed to interfere with the assessment made by the Judge. As this Court stated in Taueki,[12] where denunciation and deterrence are both important sentencing values and where protection of the community is relevant, it can be expected that minimum periods of imprisonment will not be rare or even uncommon.
[12]At [57].
Here, the Judge rightly discerned there was a need to protect the community from the appellant given his previous offending, his positive enjoyment of what the Judge described as recreational violence, and his failure to accept responsibility for the offending or to express any genuine remorse for his actions. As well, as the Judge noted, the need for accountability and denunciation was exceptionally high in the circumstances of the case.
The Judge took into account the appellant’s youth in not imposing life imprisonment. There was no basis to make any further allowance for this factor given the appellant’s history, the deliberate nature of the attack and the explicit warning he had been given.
Result
Overall, the offending in this case was particularly serious and called for a sentence that gave full weight to the statutory purposes of denunciation, deterrence and holding the offender accountable. The protection of the community was also an important factor. As the Judge himself recognised, this was a stern sentence but we have not been persuaded that it was manifestly excessive.
The appeal against sentence is dismissed.
Solicitors:
Paino & Robinson, Upper Hutt for Appellant
Crown Law Office, Wellington for Respondent
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