Te Pana v R [2014] NZCA 55 (7 March 2014)

Last Updated: 13 March 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA487/2013 [2014] NZCA 55
BETWEEN	PATRICK KOTI TE PANA Appellant
AND	THE QUEEN Respondent

Hearing:	3 March 2014
Court:	Randerson, Venning and Cooper JJ
Counsel:	C Muston for Appellant M D Downs and Z R Hamill for Respondent
Judgment:	7 March 2014 at 12:30pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1] Following a jury trial in the High Court, Patrick Te Pana was convicted of manslaughter. Woolford J sentenced Mr Te Pana to eight years, six months imprisonment and imposed a minimum non-parole period of five years.^[1] Mr Te Pana appeals against the sentence on the grounds it is manifestly excessive and the minimum non-parole period was not justified.

Background

[2] Mr Te Pana killed his stepfather, Christopher Edwards. Mr Edwards had been Mr Te Pana’s mother’s partner for 30 years. At the time of the offending Mr Te Pana was 41 years old. Mr Edwards was 61 years old.
[3] On 10 January 2012, Mr Te Pana was at his mother and stepfather’s home. He was bailed to their address with a curfew because he was facing charges of assault (to which he later pleaded guilty) against his own partner. A number of family members gathered at the address that evening. All were consuming alcohol in the kitchen/dining room area. Mr Te Pana became angry at Mr Edwards. He was jealous of Mr Edward’s friendship with his partner. While Mr Edwards was sitting in a chair, Mr Te Pana stood up and punched him several times to the head and face with his fists. Mr Edwards had no opportunity to defend himself and did not retaliate. Other family members had to intervene to stop the assault. Mr Edwards was left with a black eye and a cut above his lip.
[4] The next day family members discovered Mr Edwards in an unconscious and unresponsive state in his bed. He had vomited blood and bile throughout his bed. An ambulance was called. Mr Edwards was assessed to be in a critical condition. An emergency helicopter transported him to Whangarei Hospital. At the hospital he was found to have a significant bleed in his brain. Despite emergency surgery at Auckland Hospital Mr Edwards died in the early hours of 13 January 2012. The cause of death was a subdural brain haemorrhage consistent with blunt force trauma as a result of an assault.
[5] When spoken to by the police Mr Te Pana sought to minimise his actions. He said that he had only given the victim “three smacks”.

Sentence

[6] In sentencing Mr Te Pana, Woolford J took a starting point of eight years imprisonment for the offending. In doing so the Judge referred to this Court’s decisions in R v Tai and R v Taueki in particular.^[2] The Judge also said that he was concerned about the levels of violence in Northland. Woolford J then uplifted the starting point by six months to take account of Mr Te Pana’s previous convictions for violent offending. He considered there were no mitigating factors.
[7] Finally the Judge considered that, in order to denounce Mr Te Pana’s conduct and to send a message about the huge harm that alcohol-fuelled violence causes, a minimum period of imprisonment was required. He imposed the minimum period of five years.

Appeal

[8] Mr Muston raised two principal grounds in support of the appeal:

• (a) the sentence of eight years, six months was manifestly excessive; and
• (b) there was no need in this case for the imposition of a minimum nonparole period. The Crown had not sought one.

Discussion – the sentence

[9] Mr Muston first sought to distinguish R v Tai from the present case on the basis that Mr Tai had kicked the victim’s head while he was on the ground. He also referred to a number of other cases, including those raised by the Crown before the Judge: Kepu v R; R v Grafton and R v Orupe.^[3] During the hearing, reference was also made to the case of Murray v R.^[4] Mr Muston argued that an appropriate starting point was in the range of four years imprisonment.
[10] As Woolford J observed, there is no tariff for manslaughter offending. The appropriate sentence in each case is to be determined by consideration of the particular features of the case before it. We consider the present case to be quite different to cases of manslaughter where death results from a single blow, the “king hit” cases. Woolford J as trial Judge was best placed to assess the seriousness of Mr Te Pana’s assault on the victim. We accept his assessment of it as an unprovoked attack on a vulnerable older man and that the attack involved a number of serious blows to the head, serious enough to have caused the brain haemorrhage which ultimately led to his death. We note that Mr Te Pana’s aunt who gave evidence at trial said in her victim impact statement that she did not think there was a word strong enough to describe the level of violence Mr Te Pana inflicted on the victim that night. She described it as a beating.
[11] We do not consider Mr Muston’s attempt to distinguish Tai on the basis that Mr Tai had kicked the victim in the head to be helpful. In that case there was a suggestion the kick had not in fact caused death. More importantly in that case, this Court considered that a starting point of seven to eight years would have been justified by the aggravating features of the most serious injury (death), attacks to the head and (arguably) a vulnerable victim.^[5] All three features are present in Mr Te Pana’s case.
[12] The fact the violence occurred in a domestic situation should not be seen as reducing its seriousness.^[6]
[13] While another Judge may have adopted a starting point towards seven years as opposed to the eight taken by Woolford J, an uplift was required for the aggravating features personal to Mr Te Pana. Mr Te Pana has nine previous convictions for assault, seven of them being male assaults female. He has served time in prison for his previous offending. Mr Te Pana’s previous history discloses a propensity for violence. That, taken with the fact the offending occurred whilst he was on bail for another charge of violence, would have supported an uplift of between 12 and 18 months.
[14] It follows that we are satisfied the end sentence of eight years, six months was within the range available to Woolford J having regard to the circumstances of the offending in this case and the aggravating features personal to Mr Te Pana.
[15] Mr Muston also criticised the Judge for referring to the problem of violence in Northland and suggested that may have influenced the starting point. As this Court accepted in Christofides v R, there can be no objection to judges in particular localities or regions adopting higher sentencing levels to meet particular concerns in that area so long as this is done on a principled basis.^[7] But as this Court went on to say:^[8]

... it should generally be for the Crown to indicate that it considers a prescribed sentencing level to be too low having regard to circumstances that have arisen in a particular locality. The Crown has access to national statistics, and will be able to provide the court with data justifying its stance. It will then be for the court to determine whether the submission has merit.

[16] The Crown did not seek to raise the issue at sentencing in this case. In the circumstances, Mr Te Pana’s counsel did not have the opportunity to respond to the statistical information cited by the Judge. However, as we read the Judge’s sentencing notes we do not consider that his reference to the problem of alcohol fuelled violence in Northland and the underlying statistics led to an increase in his starting point for Mr Te Pana’s sentence as such. Rather it was a feature which confirmed the Judge’s assessment that the starting point of eight years was appropriate in this case.

Discussion – the minimum non-parole period

[17] When, as was the case here, the Crown does not seek a minimum period of imprisonment and the Court is considering imposing one, the sentencing Judge should raise the matter with counsel to provide them with an opportunity to address submissions on the issue. However the Judge’s failure to do so in this case can be addressed on appeal.
[18] We are satisfied that the standard minimum period of imprisonment would have been insufficient to hold Mr Te Pana accountable for the harm he caused, to denounce his conduct and to deter him and others from committing similar offending. Given Mr Te Pana’s past history of violence the need to protect the community was also a proper consideration. There were no relevant mitigating features that would affect that assessment.

Result

[19] The appeal against sentence is dismissed.

Solicitors:
C Muston, Whangarei for Appellant
Crown Law Office, Wellington for Respondent

---

^[1] R v Tepana [2013] NZHC 1592.

^[2] R v Tai [2010] NZCA 598 and R v Taueki [2005] 3 NZLR 372 (CA).

^[3] Kepu v R [2011] NZCA 104; R v Grafton HC Christchurch CRI-2010-009-16104, 23 November 2011; and R v Orupe HC Wellington CRI-2009-035-1365, 3 December 2009.

^[4] Murray v R [2013] NZCA 177.

^[5] R v Tai, above n 2, at [22]–[24].

^[6] R v Taueki, above n 2, at [33].

^[7] Christofides v R [2011] NZCA 126 at [13]; and R v Rota [2012] NZCA 49 at [28].

^[8] At [15].