[1] At a jury trial before Panckhurst J the appellant and a co-accused, Mr Rehu, faced two counts, one of manslaughter and one of indecent assault. The appellant was convicted on both counts while Mr Rehu was acquitted. Panckhurst J sentenced the appellant to a term of imprisonment of six years, with a minimum period of imprisonment (MPI) of three years, six months.[1] He appealed initially against both conviction and sentence but has abandoned the conviction appeal.
[2] There are two aspects to the sentence appeal. The first is that the sentence is manifestly excessive. Mr Glover submitted that the end sentence ought to have been four rather than six years’ imprisonment, relying particularly on the sentence imposed by Panckhurst J in R v Neho.[2] The second is that no MPI should have been imposed. Mr Glover submitted that Panckhurst J failed to consider sufficiently the requirements in s 86(2) of the Sentencing Act 2002.

Factual background

[3] The appellant, who was 25 at the relevant time, lived on the streets and was a heavy user of alcohol. Mr Rehu was an associate. The victim, a 16 year old male who suffered from attention-deficit hyperactivity disorder, was also living on the streets having run away from his aunt who was acting as his caregiver. The appellant, Mr Rehu and the victim were part of a group of people who spent the day drinking and socialising together in various public spaces. The appellant was regarded as their leader. It appears that some members of the group assaulted the victim in the course of the day, although not seriously. There was an incident at a liquor store around 9 pm, when the appellant procured the victim to take a bottle of liquor from the store without paying for it. This was observed, and two patrons of the store gave chase, catching the victim and retrieving the bottle of liquor from him. The victim may have suffered some injuries in the process.
[4] By late evening/early morning, only the appellant, Mr Rehu and the victim were left. They went to a park, where they were joined for a period by a pedestrian who was walking home after his car had run out of petrol. The appellant directed the victim to find some petrol for him, which predictably enough proved to be a lost cause as the victim had neither money nor a container. After the victim returned empty-handed, the pedestrian saw the appellant give him “a backhander, straight across the nose”. The victim’s nose was broken and bled profusely. The pedestrian left at that point.
[5] Later, around 6 am, the appellant telephoned St John’s Ambulance saying that he was a jogger and had come across a boy lying in the park. The appellant said that the boy was seriously injured but still alive, and had told him that he had been assaulted by Mr Rehu. When the ambulance officers arrived at the scene shortly after they found the victim, alone and dead. He had been dead for some time. His lower clothing had been removed, so that he was naked from the waist down except for an item of clothing which had been placed over the middle of his body.
[6] A post-mortem examination revealed bruising to the right forehead, the right eye and the area of the lips, as well as the injury to the nose. There were two areas of subcutaneous haematoma to the scalp and a diffuse traumatic axonal injury. Such an injury results from violent acceleration which causes movement of the brain within the head and, when that movement stops, there is stretching which causes damage to nerve fibres. The victim’s blood alcohol level was 267 micrograms per 100 millilitres of blood. The range of injuries suggested that after the pedestrian had left, the victim had been assaulted over a period of time. This was supported by blood found at various locations within the park, in particular at a picnic table and near a park bench.
[7] The immediate cause of death was positional asphyxiation. The combination of the injuries to the head and intoxication caused the victim to lose consciousness. While unconscious, the victim’s head fell or rested in a way that led to his asphyxiation. By its verdict, the jury accepted that the appellant had assaulted the victim and caused the axonal injuries. While those injuries were not themselves life threatening, they were a substantial and contributing cause of the victim’s death.

Discussion

[8] As we have said, the appellant was sentenced to a term of six years’ imprisonment with a MPI of three years, six months. Both aspects are challenged on appeal. We deal with each in turn.

End sentence manifestly excessive?

[9] At sentencing, Panckhurst J noted that the appellant:

(a) had attempted to place the blame on Mr Rehu in his police interviews;[3]

(b) had numerous convictions, most of which were for offences of disorder and minor dishonesty but three of which were for robbery and one for assault;[4] and

[10] The Judge then identified and discussed three aggravating features of the offending, namely the degree of violence involved, the victim’s vulnerability and the abuse of the dominant position which the appellant held in the group.[6] The Judge did not accept that the appellant was remorseful, although he did accept that the appellant regretted what had happened.[7]
[11] Panckhurst J then noted the difficulties that arise when sentencing for manslaughter given the wide variety of factual circumstances in which the offence occurs. He referred to a number of decisions which involved somewhat similar features to the present case, including Neho and noted that the sentences imposed in those cases fell within the range of four to eight years.[8] The Crown had suggested a starting point of between six and eight years, defence counsel a starting point of four years. The Judge adopted a starting point of five years, which he increased to six years in light of the appellant’s personal background and previous involvement in violence. A concurrent sentence of one year was imposed in relation to the indecent assault.
[12] Mr Glover submitted that the sentence was manifestly excessive by comparison with the four year sentence which Panckhurst J imposed in Neho. He noted that the Judge had accepted that the level of violence, although serious, was not life-threatening. He submitted that the Judge should not have treated the impact on others as an aggravating factor as that was an inherent feature of this type of offending. Finally, Mr Glover argued that the Judge, having accepted that the appellant showed regret, should have allowed some discount. He submitted that the end sentence should have been four years’ imprisonment.
[13] In R v Leuta[9] a full bench of this Court considered whether it would provide a limited guideline in relation to sentencing in specific classes of manslaughter cases. The Court declined to do so, saying:[10]

We are satisfied that the best guidance for sentences in these manslaughter cases is to be found in earlier sentencing decisions in similar cases rather than in a guideline starting point for offences involving one or a limited number of identified features.

[14] Turning to the Neho case on which Mr Glover relied, Mr Neho was charged with murder. The intoxicated victim had an argument with a prostitute, whom he thought had ripped him off, and apparently assaulted her and took her jacket. Mr Neho observed this as he was sitting on a park bench drinking a can of beer. He intervened, probably to assist generally, but the victim took a swing at him. Mr Neho then punched the victim, who fell to the ground. As he was attempting to get up, Mr Neho gave him two powerful kicks to the head which rendered him unconscious. Mr Neho removed the victim’s watch and then returned to the park bench. However, he asked some associates to check on the victim. He was making sounds which the associates interpreted as snoring but were probably sounds indicating that he was struggling to breathe. In any event, the victim subsequently died as a result of positional asphyxia.
[15] At Mr Neho’s trial on the murder charge, the jury were unable to agree a verdict. Before the re-trial, however, the Crown agreed to accept Mr Neho’s plea of guilty to manslaughter. Panckhurst J sentenced him to four years’ imprisonment.
[16] The Judge allowed Mr Neho some credit for his guilty plea. He noted that Mr Neho had a previous record involving violence, but had achieved something of a turnaround in recent years, including being in a long term relationship. The Judge expressed some concern that, although he had initially seemed genuinely remorseful, Mr Neho attempted to suggest that he was acting in self-defence or that his associates had really caused the death. Moreover, the Judge noted that there were no victim impact statements as the victim was an immigrant to New Zealand, effectively a refugee, and was on his own. The Judge imposed a sentence of four years’ imprisonment, finding support for this in this Court’s decision in R v McLeod[11] in which a sentence of six years’ imprisonment was quashed and replaced by a sentence of four years’ imprisonment.
[17] We accept that there are similarities between Neho and the present case. For example, in neither case was the violence used life-threatening. In both cases the perpetrator showed a degree of callousness, Mr Neho by stealing his victim’s watch, the appellant by removing the victim’s lower-body clothing thereby committing an indecent assault.
[18] However, we do not accept that Neho is on all fours with the present case:

(a) Mr Neho pleaded guilty, the appellant did not.

(b) Mr Neho showed some remorse, the appellant has not (like the Judge, we consider that the regret felt by the appellant is not the same as genuine remorse).[12]

(d) Mr Neho showed some concern for his victim by having his associates check on him, the appellant showed none for his.

(e) Mr Neho had been trouble-free, working and was in a stable relationship for some years prior to the offending, whereas the appellant’s offending had been escalating. In particular, in the three years prior to the present offending the appellant had committed a number of offences of robbery and assault, the last a week before the present offending.

(f) The victim in the present case was particularly vulnerable, the victim in Neho less so.

(g) While there were no victim impact statements in Neho, there were eight in the present case, showing the significant impact that the victim’s death had upon others.[13]

These differences are, in our view, sufficient to justify the difference in end sentences in the two cases.

[19] In his submissions, Mr Glover expressed some concern about the following passage from the Pre-Sentence Report:

That alcohol and violence flowed freely on that fateful night is not in doubt, but sadly the milk of human kindness was not evident in any way, shape or form. Compassion, pity and human decency were even rarer commodities as far as the unfortunate victim was concerned. The result was that a young life was brutally cut short before it could reach its full potential, in whatever direction that may have followed into the future.

Mr Glover submitted that this language was unnecessarily emotive. Moreover, the report as a whole was inadequate. Mr Glover said that the Judge may have been unduly influenced by this.

[20] The pre-sentence report is brief. But that seems to be because the appellant refused to supply contact details for others (for example, former partners) who might have been able to supply further information. The report writer was left to rely on what he could glean from the appellant in his interview with him and from Community Probation and Psychological Service records. As the Judge commented, the appellant was not forthcoming.[14] As to the emotive language, we agree that it was unnecessary, but we do not think that there is any risk that Panckhurst J was wrongly influenced by it.
[21] In the result, we consider that the Judge was entitled to impose a sentence of six years’ imprisonment for this offending.

MPI unjustified?

[22] The Judge dealt with the imposition of an MPI relatively briefly:[15]

The Crown maintains that this is a crime which calls for the imposition of a minimum period of imprisonment in order to denounce your conduct, primarily. I am satisfied that a minimum term is required. In the leading case of R v Taueki [2005] 3 NZLR 372, it was indicated that minimum terms are required where violence is involved at a serious level and the more so, of course, if a death should result. So I direct that you are to serve a minimum period of 3½ years’ imprisonment before you will even be eligible to be considered for parole.

[23] Mr Glover submitted that, as in Neho, a MPI was not required in the present case. He argued that the Judge had failed to pay sufficient regard to s 86(2) of the Sentencing Act, which provides:

The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under s 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:

(a) holding the offender accountable for the harm done to the victim and the community by the offending:

(b) denouncing the conduct in which the offender was involved:

(d) protecting the community from the offender.

[24] As this Court said in Taueki, the question for the Judge is whether serving one third of the nominal sentence is insufficient for all or any of the four purposes in s 86(2).[16] The Judge said that he considered it was, principally it appears for the purpose of denunciation. In Taueki, this Court said:[17]

In cases of serious violence, where denunciation and deterrence are both important sentencing values, and where protection of the community from the offender may well be a relevant factor, it can be expected that minimum periods of imprisonment will not be rare or even uncommon.

Accordingly, while it is not right to say that Taueki requires the imposition of a MPI in a case where serious violence is involved, a MPI will generally be imposed in such cases. We have no doubt that one was required for the purpose of denunciation in this case given the degree and duration of the violence, the victim’s vulnerability and the appellant’s callous indifference to his plight.

[25] As to the term, this Court said in Taueki that the factors relevant to the fixing of the finite sentence are also relevant to the fixing of the term of the MPI: “The setting of the [MPI] requires similar analysis to that required for setting the nominal sentence”.[18] The Judge did not repeat the analysis that he had gone through in fixing the end sentence when fixing the term of the MPI at three years, six months. Nor did he adopt an automatic “two thirds of the finite term” approach, which the Court in Taueki cautioned against.[19] That said, we accept that the sentencing notes do not reveal exactly why the Judge chose three years, six months as opposed to some other period for the MPI. However, like the Judge we are satisfied that the term is appropriate in the circumstances of this case.

Decision

[26] Accordingly, the appeal is dismissed.

Solicitors:
Raymond Donnelly & Co, Christchurch for Respondent

[1] R v Christie HC Christchurch CRI-2008-009-3597, 4 December 2009.
[2] R v Neho HC Christchurch T51/02, 20 June 2003.
[3] At [19].
[4] At [20].
[5] At [21].
[6] At [22]–[26].
[7] At [27].
[8] At [29].
[9] R v Leuta [2002] 1 NZLR 215.
[10] At [59].
[11] R v McLeod CA112/94, 27 May 1994.

[12] Regret at one’s predicament or even that the victim has died does not amount to the deep sense of guilt that underlies genuine remorse.
[13] See Sentencing Act, s 9(d).
[14] At [19].
[15] At [33].
[16] At [55].
[17] At [57].
[18] At [56].
[19] At [58].

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