Wharerau v R [2015] NZCA 299 (10 July 2015)

Last Updated: 21 July 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA658/2014 [2015] NZCA 299
BETWEEN	SHAYLENE WHARERAU Appellant
AND	THE QUEEN Respondent

Hearing:	30 June 2015
Court:	Winkelmann, Lang and Wylie JJ
Counsel:	A B Fairley for Appellant M A Corlett for Respondent
Judgment:	10 July 2015 at 10.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.
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REASONS OF THE COURT

(Given by Winkelmann J)

[1] The appellant, Ms Wharerau, was convicted following trial before Faire J and a jury on a charge of manslaughter. She was sentenced by Faire J to three years and two months’ imprisonment, and now appeals that sentence on the ground that it is manifestly excessive.

The circumstances of the offending

[2] Ms Wharerau had been in a relationship with the victim for about six months at the time of the offending. It was a relationship in which there was some low-level violence. On 30 October 2012 Ms Wharerau and the victim were together at home when an argument broke out over the use of her phone. In the course of the argument the victim slapped Ms Wharerau across the face, and in return she punched him on the back. She then tried to use her phone to contact her cousin, but the victim broke it. He followed Ms Wharerau into her bedroom, throwing the phone on the floor multiple times.
[3] Ms Wharerau picked up the phone and went to the kitchen and again the victim followed her. The kitchen was a confined space, and the victim was, in Ms Wharerau’s words, “really angry” with her. She grabbed a knife off the kitchen bench and swung it in the victim’s direction. She said she was trying to scare him away, but the knife stabbed the victim in the chest, puncturing his lung and his heart sac. Ms Wharerau then rinsed the knife, and went to the neighbour’s to call for help. After that she returned home and supported the victim until an ambulance arrived.
[4] The victim received medical treatment for a collapsed lung, air in the chest cavity, blood in the chest cavity and blood in the pericardial sac. It is an unusual feature of this case that he died some time after receiving treatment, and after leaving hospital. Nevertheless, a post-mortem indicated that he had died as a result of the injuries sustained on 30 October.
[5] The victim was 17 years old at the time of his death. Ms Wharerau was 20 years old at the time of her offending.

The sentence

[6] The Judge proceeded to sentence Ms Wharerau on the basis of her account that she acted recklessly rather than deliberately when she stabbed the victim. He referred to cases he regarded as factually similar to this offending to assist him in selecting a starting point. These were cases involving defendants convicted of manslaughter who had stabbed their partners in the context of a domestic dispute. He referred in particular to the cases of R v Paton, R v Hu, R v Woods, R v Tamati and R v Stone.^[1]
[7] Having reviewed the detailed facts of those authorities, the Judge commented that the offending in Paton was more serious than the present offending, because it involved two knives and stabbing to the neck, rather than the swinging of the knife in the victim’s direction. He said he also considered Hu to be more serious because the defendant in that case left the scene of the argument to get a knife and brought it back to use on the victim. However, he characterised Ms Wharerau’s offending as more serious than the offending in Tamati and Stone. He said the offending in Woods was similar, but more serious because the offending involved two stabs.
[8] Having undertaken that exercise, the Judge adopted a starting point of four years and six months’ imprisonment. He then allowed a 15 per cent discount to reflect her youth, and a further 15 per cent for her genuine remorse.

Grounds of appeal

[9] It is argued for Ms Wharerau that the Judge misdirected himself in treating the cases he referred to as factually similar. Those cases involved a deliberate stabbing and some element of premeditation. The Judge failed to give sufficient weight to the absence of any premeditation on Ms Wharerau’s part, and to the fact that the fatal injury was caused by a reckless rather than intentional act. Ms Wharerau argues that a reckless act is generally treated by the law as less culpable than an intentional act, and points to the lesser maximum sentence for causing grievous bodily harm with reckless disregard for the safety of others (a maximum sentence of imprisonment of seven years) than for the intentional infliction of grievous bodily harm (a maximum sentence of 14 years’ imprisonment).^[2]
[10] As to the cases relied upon by the Judge in fixing a starting point, while he acknowledged the offending in Paton as more serious than Miss Wharerau’s, he is said to have failed to sufficiently consider the element of premeditation present in that case.^[3] The offender in Paton left the argument and went into the kitchen, where she picked up two knives. The victim, having followed her into the kitchen challenged her to use the knives, at which point the offender stabbed the victim in the neck with one of the knives. The offender fled the scene, another point of distinction to which the Judge is said to have failed to give adequate weight.
[11] The Judge also saw the offending in Hu as more serious than Ms Wharerau’s because of the premeditation involved in the offending.^[4] In Hu, following an argument with the victim the offender went to the kitchen for the sole purpose of obtaining a knife. She grabbed a small paring knife and returned to try and stab the victim in the shoulder. She missed, stabbing his neck and penetrating his carotid artery. Although Ms Hu tried to assist the victim, he died. The Judge in Hu adopted a starting point of four years and nine months.
[12] Ms Wharerau argues that a greater reduction in starting point from that employed in Hu was necessary to reflect that she acted recklessly rather than deliberately, and without premeditation.
[13] The offending in Woods occurred in the context of a drunken argument.^[5] The offender stabbed the victim twice in the chest with a knife, killing him. The Judge in Woods adopted a starting point of four years and nine months. Although Faire J acknowledged the offending in Woods was more serious because it involved two stabs to the chest area of the victim, he is criticised for failing to mention the additional aggravating feature in that case of the use of alcohol, and for having adopted a starting point only three months less than that in Woods.
[14] Ms Wharerau also takes issue with the Judge’s characterisation of the offending in Tamati and Stone as less serious than that of Ms Wharerau.^[6] In Tamati, the offender and victim had been in a violent relationship for 17 years. Following an argument, the offender armed herself with a knife, forced her way into the room and stabbed the victim behind the knee, inflicting an injury which caused his death. A starting point of four years’ imprisonment was adopted.
[15] Stone was also a case involving a single stab to the leg of the victim causing death. Again the offender and victim’s relationship was characterised by violence. The offender and victim had consumed alcohol and methamphetamine prior to the incident. A starting point of four years and six months’ imprisonment was adopted.
[16] Ms Wharerau argues that the offending in both these cases was more, rather than less, serious than her offending. Both cases involved an intentional stabbing by an offender who moved away from the scene of the argument to arm herself with a knife and then returned to stab the victim.
[17] Ms Wharerau says that she also referred the Judge to the case of R v Mahari.^[7] In that case, after a prolonged night of drinking and domestic violence, the offender, Miss Mahari, locked herself in the residence she shared with the victim, and armed herself with a knife. When the victim forced his way in, she stabbed him in the shoulder and he died a short time later. In that case the Judge adopted a starting point of four years and six months. It is argued for Ms Wharerau that the offending in that case was more serious because of the premeditation involved.
[18] It is conceded for Ms Wharerau that there was no comparable case to assist the sentencing Judge, although ‘one punch’ manslaughter cases are argued to be a closer comparator. Faire J was referred to the case of R v Rakete where the victim died some days later following a single blow from a large wooden pepper grinder.^[8] In that case the Judge likened the offending to a one punch manslaughter case, and adopted a starting point of between three years and six months, and four years’ imprisonment.
[19] Ms Wharerau argues that on the basis of these authorities a more appropriate starting point was between three years and six months, and four years’ imprisonment. Since the reductions on account of remorse and youth were appropriately made, the end sentence should have been substantially less than that imposed by the Judge.
[20] The Crown concedes that lack of intent is a factor that distinguished this case from those referred to by the Judge, but submits that the Judge clearly took that into account and that the starting point he settled upon was appropriate when regard was had to all of the circumstances of Ms Wharerau’s offending. It also argues that even if the starting point was too high, the final sentence reached is lenient, and cannot be described as manifestly excessive.

Analysis

[21] The issue for this Court is whether the final sentence imposed was manifestly excessive. We do not adopt the Crown’s suggestion of proceeding on the basis that if there was any error in the starting point, it was corrected by overly generous discounts. The Crown did not identify any error in approach in the setting of discounts. It was open to the Judge to allow a discount for youth as Ms Wharerau remained within the age group where the law recognises that the fact of youth is relevant to the assessment of culpability. As to the discount for remorse, Ms Wharerau’s remorse found a real and practical expression, assisting the victim immediately following the attack, and attending his tangi. These actions suggest both attempts to atone for her wrongdoing, and a full understanding of its implications. The Judge had no difficulty accepting that her remorse was real and had found practical expression.
[22] The appeal must therefore be determined by reference to the appropriateness of the starting point. We accept that the starting point had to reflect that the victim’s death flowed from a reckless rather than intentional stabbing and that Ms Wharerau did not intend to cause the victim serious injury. We also proceed on the basis that, as accepted by the Crown, all the cases referred to by the Judge involved an intentional stabbing.
[23] Having reviewed the authorities referred to by the Judge we agree with where he places Ms Wharerau’s offending amongst that constellation of cases. The Judge treated the offending as less serious than offending where the intentional stabbing was to the most vulnerable part of the body, the torso, (Paton, Hu and Woods) and more serious than the two cases in which the intentional stabbing was to the leg (Stone and Tamati).^[9] He thought that it bore similarity to a case in which there was an almost instinctual grabbing of a weapon, a knife, by the offender in circumstances where she felt threatened (Woods).
[24] The fact that Ms Wharerau did not intend to cause the victim serious injury but was rather reckless as to whether serious injury resulted was only one factor to be weighed where her action resulted in the death of another. Although the stabbing was a reckless rather than intentional stabbing, it was the result of extremely reckless conduct. It involved the use of a knife, a potentially lethal weapon, with a swinging motion toward the torso of the victim in a confined space.
[25] We do not consider that Mahari cast any different light on the sentencing exercise for the Judge.^[10] In that case the stab was aimed at the shoulder. The Judge was not required to refer to every authority counsel relied upon. We also do not consider the Judge erred in failing to find assistance in the one punch manslaughter cases or from the case of Rakete.^[11] The one punch manslaughter cases do not involve the use of a weapon, and although a weapon was used in Rakete, it was not an inherently lethal weapon.
[26] For these reasons we are satisfied that the starting point adopted by the Judge was within the appropriate range having regard to the nature and circumstances of the act that led to the victim’s death. It follows that the sentence was not manifestly excessive.

Result

[27] The appeal is dismissed.

Solicitors:
Thomson Wilson Law, Whangarei for Appellant
Crown Law Office, Wellington for Respondent

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^[1] R v Paton [2013] NZHC 21; R v Hu [2012] NZHC 54; R v Woods HC Gisborne CRI201101648, 10 June 2011; R v Tamati HC Tauranga CRI-2009-087-1868, 27 October 2009; R v Stone HC Wellington CRI-2005-078-1802, 9 December 2005.

^[2] Crimes Act 1961, s 188(2) and (1), respectively.

^[3] R v Paton, above n 1.

^[4] R v Hu, above n 1.

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

^[6] R v Tamati; R v Stone, above n 1.

^[7] R v Mahari HC Rotorua CRI-2006-070-8179, 14 November 2007.

^[8] R v Rakete [2013] NZHC 1230.

^[9] R v Paton; R v Hu; R v Woods; R v Stone; R v Tamati, above n 1.

^[10] R v Mahari, above n 7.

^[11] R v Rakete, above n 8.