Ioata v R [2013] NZCA 235 (17 June 2013)

Last Updated: 26 June 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA38/2013 [2013] NZCA 235
BETWEEN	JOHNATHAN IOATA Appellant
AND	THE QUEEN Respondent

Hearing:	22 May 2013
Court:	French, Goddard and Lang JJ
Counsel:	J Murdoch and L S Collins for Appellant P K Feltham and Z R Hamill for Respondent
Judgment:	17 June 2013 at 12.00 pm

JUDGMENT OF THE COURT

Appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

[1] The appellant was convicted on one count of manslaughter following trial by a High Court jury. He was sentenced by Collins J to four years nine months’ imprisonment from a starting point of five years’ imprisonment.^[1]
[2] He appeals his sentence on the grounds that the five year starting point adopted by the trial Judge was too high and the Judge erred by adopting the sentencing methodology established in R v Tai without cross-reference to other sentencing cases for manslaughter.^[2] Certain factual findings relied on by the Judge, which led him to adopt the starting point of five years’ imprisonment, were also disputed.

Background facts

[3] The evidence at trial occupied some six days.
[4] The incident resulting in the unfortunate death occurred late in the evening on 13 September 2011. The appellant and a group of associates were walking along High Street in Lower Hutt when the victim, Mr Filipo Sipaia, and two associates approached them by car. Mr Sipaia and his friends were apparently in the area in response to text messages asking them to resolve an issue involving the appellant.
[5] After the vehicle pulled up, one of the appellant’s group approached it and slapped Mr Sipaia in the face. Mr Sipaia then got out of the car and a fight started between the two men. The Judge described this as “mainly a one-on-one tussle”.^[3] The two ended up on the ground fighting with each other and it is possible that one or more of the appellant’s party may also have hit Mr Sipaia while they were fighting, one possibly with a bottle. However, the two soon got back onto their feet and neither appeared to have been adversely affected by the fight. The Judge recorded that Mr Sipaia continued to “mouth off” at his assailant and at others in the appellant’s group after he had gotten to his feet.^[4]
[6] The Judge set out the appellant’s actions from that point, as described in the evidence at the trial:^[5]

[12] It is at this stage that you entered the scene. I need to carefully explain what I believe you did. In my assessment you approached Mr Sipaia in a way that meant that he did not see the punch you threw. You punched him very deliberately and very forcefully in the right side of his head. Various descriptions have been given of the punch you threw. Mr Fono said it was a “big swing”. Mr Tauvao, an independent witness said that it was a “king hit” and a “haymaker”. Mr Walker and Ms Tutahione [also independent witnesses] described it as being a “cheap shot”.

[13] In my assessment your punch knocked Mr Sipaia to the ground almost instantly. He was not able to break his fall. He was probably unconscious from the effects of the punch. Mr Fono described Mr Sipaia falling straight down without bending his knees. Mr Walker described Mr Sipaia as falling straight to the ground after he was hit by you. He said he even heard the sound of Mr Sipaia’s head hitting the road. Ms Tutahione described Mr Sipaia’s fall as being “just like a tree being cut down, that’s how he fell back”.

[7] When Mr Sipaia fell to the ground, the appellant and his associates immediately departed the scene. Mr Sipaia was lifted from the road unconscious and put into the back seat of his vehicle and driven home to Stokes Valley. He was still unconscious on arrival and an ambulance was called. He was taken to the Wellington Intensive Care Unit where he was medically assessed as suffering from a serious brain injury from which he was unlikely to recover. He died the following day.
[8] The post-mortem results established that death had occurred as the result of a punch to the right side of Mr Sipaia’s head, which had caused him to collapse to the ground unconscious, resulting in a heavy impact to his skull. Separate fractures to the front of his skull from the fall had caused the fatal brain injuries.
[9] The Judge found the description given by the witnesses of the blow struck by the appellant to Mr Sipaia to be entirely consistent with the pathology. The pathologist who gave evidence told the Court that, in her assessment, a fracture to the right side of Mr Sipaia’s skull was consistent with a punch delivered to the right side of his head. This scenario, of a punch to the right side of Mr Sipaia’s head knocking him to the ground and thereby causing his brain to bounce forward, was consistent with the injuries sustained to the front poles of Mr Sipaia’s brain. Although the pathologist said she could not discount the possibility of the injuries to the right side of Mr Sipaia’s head having been caused by a bottle or boot, these scenarios did not comfortably fit with the brain injuries that she had observed in the front portion of the brain.
[10] On the basis of that evidence, the Judge deduced that the punch delivered by the appellant had been deliberate and powerful and had probably knocked Mr Sipaia out. In any event, death had been caused either by the appellant’s punch or by Mr Sipaia falling to the ground and striking his head, or by a combination of both. The Judge further found that Mr Sipaia had not seen the punch coming and therefore had not been in a position to defend himself: thus the punch was unnecessary and gratuitous. He concluded that the appellant had intended to inflict serious harm when he threw the punch but had not intended to kill Mr Sipaia.

The sentence

[11] In approaching the sentencing exercise the Judge referred to, and placed reliance on, the decision of this Court in Tai and outlined the methodology he intended to apply in identifying an appropriate starting point by application of the sentencing levels provided in R v Taueki, observing:^[6]

[19] ... In that case the Court of Appeal held that in manslaughter cases, where the offender clearly intended to inflict serious injury, then sentencing Judges may apply the methodology set out by the Court of Appeal in R v Taueki. That judgment relates to sentencing levels inflicting grievous bodily harm. The Court of Appeal in Tai said that referring to the Taueki methodology was an appropriate reference point before cross-checking the starting point against sentences imposed in similar manslaughter cases. The Court of Appeal also observed that when applying Taueki, a sentencing Judge should be mindful that in manslaughter cases a death has resulted and “appropriate adjustment” must be made to reflect that. This uplift, however, should be considered with “some care” to ensure that the starting point is not disproportionate to the offender’s overall culpability.

[20] This approach is to be contrasted with that to be applied in so-called “single punch” manslaughter cases or cases involving “moderate” or less culpability and where serious injury was not intended. In those cases careful analogy with similar cases is required.

[21] I appreciate that in Tai the Court of Appeal distinguished Mr Tai’s behaviour from what it referred to as the less culpable “single punch manslaughter” cases. The term “single punch manslaughter” can be a little misleading. The real focus of inquiry must be on the level of culpability of the defendant which can only be assessed from all the surrounding circumstances. ...

[12] Turning then to a consideration of the evidence, the Judge found the particularly aggravating features of the appellant’s behaviour to be: the gratuitous nature of the assault and the vulnerability of Mr Sipaia; the fact that the appellant struck Mr Sipaia in the head; and the fact the punch caused Mr Sipaia’s death.
[13] The Judge thought a starting point of five years’ imprisonment was consistent with the higher starting point identified as appropriate in Tai, based on an analogy between Mr Tai’s initial punch to the victim in that case and the appellant’s single, intentional, and forceful punch to Mr Sipaia’s head.
[14] After allowing a small discount of three months to reflect the genuine remorse expressed by the appellant, his high level of motivation to attend intervention treatment for alcohol abuse and his relatively young age, the Judge settled on the end sentence of four years and nine months. He did not refer by way of cross-check to any other single punch manslaughter sentences.

The appeal

Disputed factual findings

[15] The appellant disputes certain factual findings were open to the Judge in assessing culpability. The first of these was the finding that Mr Sipaia had not seen the punch coming and was not in a position to defend himself, which the Judge had characterised as his vulnerability. The second was the finding that the punch was unnecessary and gratuitous. The Judge saw these aspects as “intertwined”.^[7] The third was the finding of an intention to inflict serious harm when the punch was thrown, albeit without an intention to kill Mr Sipaia.
[16] Ms Murdoch pointed to the variance of evidence at trial about the relative position of the appellant to Mr Sipaia when the punch was thrown. In particular, Ms Murdoch highlighted excerpts of the evidence at trial which indicated the appellant was standing in front of the deceased at the time he threw the punch.
[17] It is clear there was a variation in the evidence as to this aspect. Some witnesses said the appellant was in front of Mr Sipaia when he hit him. Another said he was behind Mr Sipaia, and yet another said the appellant was behind and to the right of Mr Sipaia. All of these witnesses were unanimous however, that, at the time the punch was thrown, Mr Sipaia was “eye-balling” the man with whom he had been fighting and was not focused on the appellant. Thus, from wherever the blow was struck, it seems irrefutable that it caught Mr Sipaia unawares and was rightly to be described as a “cheap shot” or as gratuitous.
[18] There was also clear evidence that the punch connected with the right-hand side of Mr Sipaia’s head and the pathology indicates it was delivered with sufficient force to fracture his skull in that area.
[19] The evidence of the other man, with whom Mr Sipaia had been fighting and who still had him in his sights when the punch was thrown by the appellant, is significant in these respects. He said:

PH: And what was [Mr Sipaia] doing right before he got knocked out?

KM: I dunno. He was sta, he was standing up. He was just on his way up, just tryna get back up and then he got back up and then (click sound) went straight back down.

PH: And whereabouts was Pin [the appellant] when he got knocked out?

KM: At the back, to the right, on the, on the right of the oh behind him, Buck.

[...]

PH: So it was a hook from behind?

KM: Yes. It was a hook from behind. Nah it’s actually from the side. Yes there’s the side (moves hands on the table and moves left hand right fist into left fist) he stood close to the side. Behind him’s over here, see side (hits left fist with right fist) (tapping metal pole).

PH: Mmhm. And where was the victim looking right before he was punched?

KM: He was still looking at me. I don’t know where he was looking, can’t see his eyes.

PH: Mm.

KM: All I know he could still be looking down or he could be looking up. He could have just did the old Mm.

PH: Do you think he saw the punch coming?

KM: I dunno. Do you think he saw the punch coming? He got knocked out, pretty sweet if you see it coming, you’d be able to dodge it (moves to the side), No. All I know is he went straight down, never got back up.

[20] Ms Murdoch argued that the evidence did not however support the Judge’s finding that the appellant intended to inflict serious harm when he threw the punch.
[21] The outcome of a fracture to the right side of Mr Sipaia’s skull at the point at which the blow connected, speaks for itself, however. It was clearly a powerful and deliberate blow delivered to a very vulnerable part of the head. The various descriptions of it by the witnesses as a “big swing”, a “king hit” and a “haymaker” are testimony to its forcefulness.
[22] Part of the defence position was that this whole tragic episode occurred in the context of a physical competition which lacked intent to cause really serious harm. This description was a reference to the explanation for the events of the evening as a one-on-one fair fight that often happened between the two groups of young men. However, that context cannot detract from the deliberate, powerful and gratuitous nature of the punch in question, aimed as it was with deadly force and essentially delivered “from right field”.
[23] The trial Judge had the advantage of seeing and hearing all of the witnesses and was best placed to make an assessment of the evidence regarding the circumstances in which the blow was delivered. This Court on appeal will not lightly depart from a trial Judge’s findings on an issue of this nature. The findings made were clearly open to him and we accordingly reject this ground of appeal.

The sentencing approach

[24] We turn next to the criticism of the sentencing approach. This was directed to the Judge’s application of the approach set out in Tai without cross-checking the starting point reached by way of the Taueki guidelines with other single punch manslaughter cases.
[25] Ms Murdoch submitted that, on conducting such an analysis, a number of “single punch” authorities indicated that the appellant’s case did not meet the requisite standard for serious violence. In this regard, we have already dealt with the facts in dispute and are satisfied that it was open to the Judge to find the appellant’s offending did constitute serious violence. It cannot therefore be said that the Judge was wrong to take into account the guidelines laid down in Taueki in determining sentence. Although this Court has warned that a cautious approach is always required in deciding the applicability of Taueki in any given case, the situation here is one in which reference to the Taueki guidelines was justified. The Judge in fact placed the appellant’s culpability at the lower end of Band 2, thereby setting the lowest available starting point on that analysis.
[26] Although, as was said in R v Jamieson, the approach in Taueki will not always be appropriate in manslaughter sentencing,^[8] in cases such as this, where manslaughter involves serious violence, a Taueki approach may be appropriate.
[27] Given the criticism of the Judge’s approach in this case, it is perhaps helpful to repeat the observations in Tai about appropriate approaches for sentencing in manslaughter cases where serious violence has been found. Essentially, the Court thought it a matter for the sentencing Judge’s discretion as to whether or not culpability was to be assessed by reference to, among other things, comparable manslaughter sentencings; or by considering the matter in Taueki terms, making an appropriate adjustment for the fact that the consequence of the serious violence has been “not just serious injury but death itself”. Relevantly, the Court observed that a “counsel of perfection perhaps would be to utilise both approaches, each providing a check on the other”.
[28] Although, as observed in Tai, a cross-check with comparable cases is not compulsory where Taueki is relevant and utilising both approaches may amount to a “counsel of perfection”, we nevertheless considered it appropriate to conduct our own cross-check of comparable cases in this instance, as did the Court in Tai.
[29] The exercise we conducted identified two recent cases to be of most comparative relevance. The first was the relatively recent decision of the High Court in R v Larson.^[9] In that case the sentencing Judge did not find the situation to be one of serious violence and therefore did not apply the guidelines in Taueki. However the Judge accepted that the circumstances of the offending and, in particular, that it was a blind side punch delivered to the side of the victim’s head and entirely unexpected by the victim, were relevant to the assessment of overall culpability. There was similarly no provocation. From a starting point of three and a half years’ imprisonment the Judge imposed an end sentence of three years’ imprisonment, allowing for the fact that Mr Larson had pleaded guilty and was extremely remorseful. There were also significant stress factors which had contributed to his compulsive action and alcohol had played its part. In addition, Mr Larson was a hard worker and highly regarded by his employer.
[30] The most recent case with similar features to the present was the decision of this Court in Murray v R, delivered earlier this month.^[10] After an altercation between the victim in that case and Mr Murray, Mr Murray suddenly punched the victim with considerable force, with his right hand, to the left side of the victim’s face. The victim fell straight backwards, striking the back of his head with a loud impact on the pavement. In all likelihood the victim was rendered immediately unconscious by the punch. The matter similarly went to trial and Mr Murray denied punching the victim and claimed he had simply pushed him in the face in self-defence. As in the subject appeal, eye witnesses gave evidence that the victim had in fact been punched with considerable force. The pathology revealed a split between the victim’s nose and top lip at the point of impact and beneath that a fracture of the underlying bone. There was also propensity evidence of a previous occasion in which Mr Murray had knocked out a bar patron.
[31] The sentencing approach in Murray was to adopt the guidelines in Taueki as relevant and a starting point of five years’ imprisonment was similarly identified. The sentence was upheld by this Court as not manifestly excessive. Amongst the factors the sentencing Judge was correct to take into account were his conclusions that, although a single punch, the blow struck was clearly very powerful, deliberately aimed at the head and sufficiently forceful to result in a fracture of the underlying bone. Those factors reflected the acceptance in Tai that the starting point for manslaughter may need to be increased in cases where culpability is higher as the result of an intention to cause really serious harm to the victim and death has resulted. This Court in Murray was satisfied that the circumstances of the Larson case were not as serious as Mr Murray’s case, because the Judge in Larson did not find the single blow struck to be unusually forceful. Nor did the Judge find in that case that Mr Larson must have intended to cause serious injury and ought to have appreciated that further injury could result if the victim fell as a result of his punch. The Court noted also that Mr Larson had pleaded guilty whereas, in contrast, the Judge in Murray had the advantage of having heard all of the evidence at trial. As the result of our cross-check of recent comparable decisions we find Larson and Murray to be the most relevant, although each obviously turned on its own facts. Of the two cases, Murray is the more analogous, both as to its underlying facts and because the assessment of culpability was made after having seen and heard all of the evidence at trial. We are satisfied that, as in Murray, the circumstances of the offending in this case amounted to serious violence and the starting point adopted properly reflected this.
[32] In conclusion, we find no error of approach or misapplication of principle by the Judge. The starting point was appropriate and the methodology sound.

Result

[33] The appeal is dismissed.

Solicitors:
Crown Solicitor, Wellington for Respondent

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^[1] R v Ioata [2012] NZHC 3389.

^[2] R v Tai [2010] NZCA 598.

^[3] At [10].

^[4] At [11].

^[5] R v Ioata, above n 1.

^[6] R v Ioata, above n 1 (footnotes omitted), referring to R v Taueki [2005] 3 NZLR 372 (CA).

^[7] At [23].

^[8] R v Jamieson [2009] NZCA 555.

^[9] R v Larson HC Dunedin CRI-2011-012-1013, 6 July 2011.

^[10] Murray v R [2013] NZCA 177.