R v Woods HC Gisborne CRI-2011-016-000048 [2011] NZHC 548 (10 June 2011)

Last Updated: 19 June 2011

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

_{CRI-2011-016-000048}

THE QUEEN

v

STACEY NANCY WOODS

Hearing: 10 June 2011

Counsel: C R Walker for the Crown

R Fairbrother and Ms .... for the Prisoner

Judgment: 10 June 2011

_{SENTENCE OF POTTER J}

_{Solicitors: Crown Solicitor, Gisborne –} [e-mail]

_{Copy to: R Fairbrother –} [e-mail]

R V STACEY NANCY WOODS HC GIS CRI-2011-016-000048 10 June 2011

[1] Stacey Woods is before the Court for sentence, having pleaded guilty on 28

March 2011, on the first day of trial, to manslaughter. The maximum penalty is life imprisonment. The original indictment charged murder.

Factual background

[2] This is a tragic case. Ms Woods, aged 28, had been in a relationship with the deceased, Douglas Tupaea, aged 29, for approximately 10 years. They had two children together aged nine and seven, now aged ten and eight. The family had moved from Auckland to Gisborne in early 2010 to get away from negative influences that had led to the deceased going to prison. There had been previous violence in the relationship.

[3] On the night of 21 May 2010 Ms Woods and the deceased went to Ms Woods’ brother’s address to socialise. Both consumed a large amount of alcohol over the course of the evening. At one point Ms Woods became upset with the deceased and arguments ensued, but nothing eventful occurred and they eventually left the address at about 4.30 to 5.00am.

[4] Ms Woods and the deceased drove home with the deceased driving. Both were intoxicated. Arguments resumed and the deceased punched Ms Woods in the face a number of times, from which Ms Woods received a bloody nose and a swollen upper lip. When they arrived home they continued to argue. Ms Woods initially stayed in the vehicle while the deceased went inside. Ms Woods then went through the back of the house and hid at the back of the property.

[5] After a short while Ms Woods went back inside to the bathroom to wash the blood off her face. The deceased came in and made some derogatory comments about the injuries to Ms Woods’ face, denying being responsible. They continued to argue, and at some point they both ended up in the kitchen area. There Ms Woods grabbed a knife from the top kitchen drawer and stabbed the deceased twice in the upper chest. One of the wounds was shallow and did not penetrate the chest wall but

the other had a depth of seven centimetres and penetrated the heart. The pathologist later described this as a fatal injury, from which death resulted.

[6] Ms Woods and her sister, fourteen years old at the time, immediately tried to help the deceased but could not revive him. Ms Woods was hysterical. Her sister ran to a neighbour, who called an ambulance, but the deceased has already passed away by the time help arrived.

[7] When spoken to by police, Ms Woods acknowledged that she had stabbed the deceased. She said they had been drinking, had had no sleep, and that it had all happened very fast. She said that she did not mean to hurt the deceased. She acknowledged that she had been angry with the deceased at the time of the stabbing but she also told police that she believed he was going to further assault her.

Victim Impact Statements

[8] The deceased’s brother, Michael Tupaea, writes of the impact of his brother’s death on himself and especially his niece and nephew, the children of the deceased and the prisoner who have “lost a caring and loving Dad, but have also lost their Mum”. He says that he and his wife have chosen the path of forgiveness and will miss the deceased.

[9] The deceased’s mother, Mrs Norma Wilson, speaks of the shock and disbelief she felt when she heard the news of her son’s death. She also mentions her sadness that her son will never see his children grow and expresses concern for her grandchildren. She says that as a result of her grief she was advised to seek emotional help. She states that she now feels calmer, less angry and wants to be involved in her grandchildren’s futures.

[10] Of course the effect on the children of the prisoner and the deceased cannot be overstated, as Mr Walker for the Crown acknowledged in submissions. There is a further victim referred to by Mr Fairbrother, the prisoner’s sister, aged fourteen years at the time of the event, who witnessed it. The generosity of the deceased’s family towards the prisoner was acknowledged by Mr Fairbrother in submissions.

Pre-sentence report

[11] Ms Woods is 29 years old. Her two children are currently living with her brother-in-law (Mike Tupaea). She grew up in Whangarei, moved to Auckland at age 16 and remained there until moving to Gisborne just before the incident. She has ten siblings, and although she claims a good upbringing, there was frequent domestic violence by her father against her mother.

[12] Ms Woods was in a relationship with the deceased for approximately 11 years. She describes her relationship with the deceased as violent, saying he first hit her after the birth of their second child and thereafter a number of times each year. The deceased served a sentence of supervision for male assaults female against Ms Woods in 2004. Police report attending 18 family violence incidents involving Ms Woods between August 2001 and May 2010 - on two occasions Ms Woods was identified as the offender while in a further incident there was a dispute between her and her brother.

[13] The report writer states that there is a consistent narrative of a “drunken dysfunctional relationship”, and that Ms Woods’ exposure to domestic violence may mean she lacks an appropriate frame of reference with which to assess a healthy relationship.

[14] Ms Woods describes herself as a “stay at home Mum” with occasional part time and seasonal work. She is assessed as having a harmful pattern of alcohol use at the time of offending. Ms Woods reported that she suffers occasional memory loss from a car accident some years ago.

[15] Dr Chaplow, who prepared a psychiatric report on 26 March 2011 in support of a bail application by Ms Woods, concluded that Ms Woods presented with a “mild depression” which he considered should resolve once the uncertainties of the trial were over. He considered her of “low average intelligence” and “somewhat a victim herself”.

[16] Ms Woods has 11 previous convictions between 2000 and 2004, consisting of dishonesty, property, and non-compliance offences. Sentences imposed ranged from fines to supervision and community work. I regard none of those offences as relevant to the sentencing for the current offending.

Offending and Motivation to Change

[17] Ms Woods described her offending to the report writer as impulsive with no thought involved, recalling feeling “scared, sad and angry” at the time. She was unable, she said, to recall the actual offending despite having detailed recollection of events immediately preceding and following the stabbing.

[18] During the interview with the report writer Ms Woods was demonstrably distressed and overcome, maintaining that despite the abuse the deceased “meant the world” to her; that she and the deceased “loved each other” and they had been “moving on”. In response to family views that she should have claimed self defence, she explained that she would “never be able to live with myself” if she were acquitted. The report writer formed the impression that she felt the need to be punished for her actions, and considered her remorse and guilt genuine. Mr Fairbrother has emphasised the sincerity and integrity of Ms Woods’ remorse and I accept that unreservedly.

[19] The report writer identified relationship difficulties, use of violence and alcohol abuse as causal factors. Ms Woods maintained her desire to reunite with her children and expressed herself as willing to address her issues through psychological assessment, counselling and alcohol abuse programmes. Although Ms Woods does not see herself as violent and considers the offending isolated and exceptional, the report writer challenges this because of family violence reports and anecdotal evidence from family members.

[20] The report writer states that although Ms Woods is clearly motivated to be reunited with her children, it is unclear if she understands what is necessary. She is assessed at medium risk of reoffending.

Aggravating and Mitigating Factors (s 9 Sentencing Act 2002)

_{Aggravating Factors of the Offending}

Violence and use of weapons (s 9(1)(a)). A weapon (an 11cm kitchen knife with a serrated blade) was used to stab the deceased twice. I note the submission of Mr Fairbrother that this should not be an aggravating factor because selection of the weapon was unintentional (Ms Woods cannot remember picking it up), but in my view that does not detract from the fact

_{that a weapon was used.}

Extent of loss, damage, or harm (s 9(1)(d)). One of the stab wounds was

_{fatal from which death would have resulted rapidly.}

_{Mitigating Factors of the Offending}

The summary of facts records an alcohol fuelled argument between Ms

Woods and her partner during which he assaulted her prior to their returning to their home address.

_{Aggravating Factors relating to the Offender}

Previous convictions (s 9(1)(j)). I have already referred to these. They

_{require no uplift on sentencing.}

_{Mitigating Factors relating to the Offender}

Guilty plea (s 9(2)(b)). Ms Woods’ willingness to offer a guilty plea to

manslaughter was notified to the Crown the day before trial was to

commence. The fact that the indictment originally contained a murder charge can be taken into account in assessing the guilty plea discount, but the Court of Appeal in Hessell said that in a murder charge, it is when the willingness

_{to plead guilty to manslaughter was communicated that is significant.}[1]

Remorse (s 9(2)(f)). I have already said that I accept unreservedly the

_{sincerity and integrity of the remorse expressed by Ms Woods.}

Purposes and principles of sentencing

[21] Counsel have helpfully referred to the purposes and principles in ss 7 and 8 of the Sentencing Act. Ms Woods must be held accountable for the harm done to the deceased and the community. The sentence must seek to promote in her responsibility for and acknowledgment of the harm she has done, to provide for the interests of the deceased as far as that is possible, to denounce and deter the offending and to provide for her rehabilitation and reintegration into the community.

[22] The sentence must take account of the gravity of the offending including the degree of culpability, the seriousness of the offence of manslaughter, consistency with other sentencing decisions and should seek to impose the least restrictive outcome that is appropriate in the circumstances.

Submissions

[23] Mr Walker for the Crown submits that an appropriate starting point for sentencing is between five to five and a half years imprisonment and that a limited discount could be given for the guilty plea which came at the eleventh hour and for remorse, which the Crown accepts.

[24] For Ms Woods, Mr Fairbrother submits that a sentence of home detention is appropriate in the circumstances of this case, this being the least restrictive outcome that is appropriate. Counsel describes this as “involuntary” manslaughter. He

_{emphasises that death was an unintended consequence, resulting from the unintended}

selection of a knife, he submits in self defence, the prisoner having suffered violence from the deceased prior to her stabbing him. It is submitted that Ms Woods is a victim of “intergenerational domestic violence” and that her culpability is low

[25] Counsel submits that the authorities referred to by the Crown can be distinguished because in those cases the taking and use of the knife was intended, whereas, it is submitted, in this case it was not.

Approach to sentencing

[26] The Court of Appeal has affirmed that there is no tariff case for manslaughter because of the wide range of conduct and circumstances coming within the manslaughter umbrella.[2] It is necessary for the sentencing Judge to carefully analyse the case and then with some caution, compare the case with analogous cases. The Crown referred to three analogous cases: R v Brown[3], R v Mahari[4] and R v Stone.[5]

Counsel for the defence also referred to R v Tamati.[6]

[27] I do not propose to traverse the facts of each of these cases. They all bear a striking similarity with one another and with the facts of this case in that the offender is female, had been in a volatile relationship with the deceased, had been involved in a domestic dispute immediately preceding the stabbing, was under the influence of alcohol, had been the subject of abuse from the deceased immediately prior to the stabbing (except perhaps in the case of Brown), and had used a kitchen knife to stab the deceased with death being an unintended result. In all these cases the women involved had difficult childhoods, had children, and in most cases had only minor previous convictions.

[28] The starting points adopted in these cases range from four to six years imprisonment. (The six years starting point taken in Brown took into account a

_{previous conviction for assault which is not applicable here). In Stone and Tamati}

the offender stabbed the deceased once in the leg and death was an unexpected and unfortunate consequence when an artery was severed, rather than a comparatively minor injury being inflicted. In this case, as in the case of Brown, the stab was to the chest and here there were two stabs, one of which proved fatal. However, in Brown the offender did not try to assist the victim immediately after the stabbing as did Ms Woods, but instead continued hysterically to kick at him.

[29] The Crown seeks to make something of the point that Ms Woods had previously shown violence in the relationship but that also is a feature that is common to the cases referred to. Nor do I accept the submission of counsel for the defence that the other cases can be distinguished because the use of the knife in this case was “unintentional”. Counsel seeks to draw a distinction, for example, with the case of Tamati where the offender deliberately selected a knife as a weapon to scare. The action of Ms Woods in taking the knife from the kitchen drawer may have been reactive to the situation in which she found herself rather than being selected as a weapon to scare the deceased, but I do not consider the difference significant. In all the cases referred to, including this case, a kitchen knife was a weapon readily accessed by the offender and used in a way that proved fatal.

[30] The circumstances of this case I consider to be more serious than those in Tamati, Mahari and Stone where the stabs were not to the chest. As in the case of Brown the stabs here were to the chest which is more likely to prove fatal.

[31] I take a starting point of four years nine months imprisonment.

[32] The very late manslaughter plea to a murder charge does not qualify as a plea at the first opportunity to an amended indictment.[7] This issue was considered by France J in the case of Brown. I agree with his analysis. I regret I cannot accept the submissions of Mr Fairbrother on this point. The circumstances in which the guilty plea was entered are that on the Sunday prior to trial the Crown was advised of the offer of a plea to manslaughter. On the Monday morning when the trial was due to commence the jury was empanelled and the trial was adjourned while the Crown

_{completed consultation with the Solicitor-General and a summary of facts was}

agreed by counsel for the Crown and the defence. The guilty plea was then entered on the afternoon of the first day of trial. The plea spared the prisoner’s ten year old son and her fifteen year old sister from giving evidence but that was a prospect they had been obliged to contemplate right up to the eleventh hour. The plea also saved the State the cost of the trial. Accordingly the prisoner is entitled to a limited discount for the late guilty plea. I set that discount at six months.

[33] I allow a further three months discount for her genuine remorse and to reflect her personal circumstances. The end sentence will be therefore four years imprisonment.

[34] Before concluding I wish to refer to the home detention address offered by Mrs Margaret Rickard in Gisborne and the letter of strong support provided by Mrs Rickard. This offending is too serious for a sentence of home detention to be considered. Nevertheless I acknowledge the very genuine support for Ms Woods provided and offered by Mrs Rickard.

[35] Ms Woods please stand.

[36] Ms Woods you are sentenced to four years imprisonment on the charge of manslaughter.

[37] Please stand down.

---

[1] R v Hessell [2010] 2 NZLR 298 (CA) at [41]; Hessell v R [2010] NZSC 135 at [62].
[2] R v Edwards [2005] 2 NZLR 709 (CA) at [41].
[3] R v Brown HC Napier CRI-2008-020-3130, 24 November 2009.
[4] R v Mahari HC Rotorua CRI-2006-070-8179, 14 November 2007.
[5] R v Stone HC Wellington CRI-2005-078-1802, 9 December 2005.
[6] R v Tamati HC Tauranga CRI-2009-087-1868, 27 October 2009.

[7] Hessell v R at [22]-[23].