R v King [2012] NZHC 3072 (19 November 2012)

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R v King [2012] NZHC 3072 (19 November 2012)

Last Updated: 23 November 2012

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI 2009-009-17816 [2012] NZHC 3072

THE QUEEN

v

KEVIN ROBERT KING

Hearing: 19 November 2012

Counsel: M A O'Donoghue for Crown

S L Baigent with K F Preston and B J Millar for Accused

Sentence: 19 November 2012

_{REVISED SENTENCING NOTES OF THE HON JUSTICE KÓS}

[1] Mr King, you appear for sentence following conviction for manslaughter. You pleaded guilty to that charge during the course of retrial. The nature of the manslaughter here was the omission of a lawful duty to use reasonable care when doing a lawful act.[1]

Details of offending

[2] Three years ago you were the part-owner of Shapeshifters, a Blenheim bar. You also worked there as a bouncer. In the early hours of 23 August 2009 the deceased, Mr Matthew Heagney, a young man aged 24 years, arrived at your bar. He

_{went there to meet his girlfriend. After a short while, just 20 minutes, he left the bar.}

R v KING HC BLE CRI 2009-009-17816 [19 November 2012]

It seems reasonably clear that Mr Heagney had had some sort of disagreement with his girlfriend, either at your bar or more probably earlier, and was in a state of upset. Within just three minutes he thought better of leaving. He tried to re-enter. That was at 2.43 am. But lock-out at your bar was 2.30 am. The doors were closed and he was refused entry. Somehow he managed to slip past door staff and regained entry.

[3] This time he stayed only about five minutes. He decided to again leave. As he came down the stairs into the foyer he could not open the left hand door. Would for everyone’s sake that he had been able to do so. None of us would be here now.

[4] Mr Wright-Munro was the doorman that Mr Heagney had slipped past. As Mr Heagney tried to exit, Mr Wright-Munro recognised him. He tapped Mr Heagney on the shoulder. He simply intended to trespass him. Mr Heagney reacted and took hold of Mr Wright-Munro. The latter thought he was about to be punched, although no punch was thrown. Confrontation turned into physical altercation. You witnessed that. Knowing Mr Wright-Munro was young and inexperienced, you intervened.

[5] You approached Mr Heagney from behind. He was facing Mr Wright-Munro, who had his back to the wall. You put your arm around Mr Heagney’s neck pulling him away. There was a brief struggle. You restrained Mr Heagney with what is called a “sleeper hold”. Another bouncer, Ms Zuidema, arrived to assist. The evidence of witnesses vary as to whether Mr Heagney was or was not continuing to struggle. Ms Zuidema’s evidence, in my view, was more reliable than Mr Wright-

Munro’s.[2] Her evidence was that Mr Heagney had ceased to struggle. His face was

pale, he looked dazed and as if he was having difficulty breathing. Together you, Mr Wright-Munro and Ms Zuidema lifted Mr Heagney off the ground to remove him from the premises. Ms Zuidema walked backwards holding Mr Heagney’s feet. You held his upper body. Mr Wright-Munro continued to manage the door, as there was a

_{crowd milling about outside.}

[6] The foyer of the bar was a few inches higher than the footpath. There was a single step. As Ms Zuidema walked out the door backwards she stumbled slightly at the step. But the jury and I watched the CCTV footage repeatedly and it is clear that you and Ms Zuidema retained control of Mr Heagney. The evidence was that he was not struggling, was limp and at most semi-conscious. The CCTV footage then becomes unclear: the milling crowd obscures the scene. Ms Zuidema seems then to have released Mr Heagney’s legs. It is not clear exactly how you came to release Mr Heagney. But release him you did. He ended up on the footpath, on his back, with his feet towards the bar and his head towards the road. The back of his head hit the concrete, causing his death.

[7] At trial the Crown accepted that you were entitled to remove Mr Heagney from the bar. Doing so was lawful. However, in doing so you had used excessive force. The Crown position was that the headlock, or sleeper hold, used on Mr Heagney was a dangerous hold, which you had previously used and had known to be dangerous. It reduced Mr Heagney’s consciousness and it reduced his ability to protect himself when – the Crown said - you deliberately dropped him on the ground.

[8] Your defence was that you had not rendered Mr Heagney semi-conscious at all. And that you had dropped him, not deliberately but accidentally. Partly because Ms Zuidema had stumbled, and partly because a pre-existing weakness in one of your arms.

[9] On day three of the trial, the indictment was amended by the Crown from manslaughter by an unlawful act, namely assault, to manslaughter by an omission to do a lawful duty to use reasonable care. You pleaded guilty on that amendment.

Impact of your offending

[10] Mr Patrick Heagney, Mr Heagney’s father, has spoken today on behalf of his family. I have also read a statement from Mr Heagney’s girlfriend, with whom he lived. It is plain that Matthew Heagney was a very fine, decent young man. He was a fine sportsman, a member of the Marlborough Boys College 1st XV for three years,

and its captain in his final year at school. He was a devoted son, brother and partner. He showed a remarkably high level of responsibility for a young man. Any parent would have been proud to have had him as their son. He was very popular, and

1,000 people attended his funeral. He is memorialised in two sports events. It is just an utter tragedy that a young life as promising as this has been lost through an act of terrible carelessness.

[11] It is clear that Mr Heagney’s death deeply saddened and affected an exceptionally wide number of people. Mr Heagney’s parents have had to experience the loss of a son, a son who they were extremely close to and rightly proud of. Mr Heagney’s brother and sister both experienced not only the same anguish, but have also had difficulties in their studies as a result of his death. Mr Heagney’s girlfriend has had to experience the loss of a partner at a young age, and her statement is eloquent as to the anguish that she has suffered. The re-trial of this matter has added additional difficulties and pain for all of them. I say that Mr Heagney’s victim impact statement was one of the most moving that I have had occasion to read and today to hear.

[12] I simply cannot in these short remarks do justice to the loss suffered by this decent but now deeply unhappy family. Nor to the depth of feeling displayed and demonstrated so eloquently by the presence throughout the retrial (and the one that preceded it) of the Heagney family, as loyal sentinels to the memory of their son and brother.

Personal Circumstances and pre-sentence report

[13] You are now 53 years of age. You have no prior convictions.

[14] You have worked all your life in and around the hospitality industry. However, after these events you experienced animosity within the community which led you to sell your share in the bar and to move to Christchurch. You now receive a small grant from WINZ. You have been trying to establish a computer technician business.

[15] The pre-sentence report details that you deeply regret and will regret for the rest of your life the fact you did not assist Mr Heagney. You attempted in January

2011 to apologise to Mr Heagney’s family through a restorative justice initiative. They did not want to meet with you then. They considered the offer too late to be genuine remorse. You have stressed to the probation officer that you did not intentionally mean to harm Mr Heagney and you are distraught at what happened. You will carry the guilt of the death of this fine young man for the rest of your life.

[16] The pre-sentence report says that you are willing to redress your wrongdoing by whatever avenue is open to you.

[17] I cannot make you and the Heagney family come together. But I noted the words added by Mr Heagney to his original victim impact statement. I want to say this to all of you. There will never be peace for you without both contrition and forgiveness.

Purposes and principles of sentencing

[18] I am required by the Sentencing Act 2002 to keep in mind a number of purposes and principles of sentencing. Section 7 requires me to have regard to the need to hold you accountable for the harm done to the victims of your offending, and the need to promote a sense of responsibility for, and acknowledgement of, that harm. I need to denounce your conduct and I need to deter you and others like you from committing the same or similar offences in the future. I am also required to take into account the need to assist in your respective rehabilitation and reintegration into society in due course.

[19] In terms of s 8 principles, I must take into account the gravity of your offending, including your degree of culpability. I must have regard to the seriousness of the type of offences committed by comparison to other types of offending, indicated by the maximum penalty prescribed. I must also consider the general desirability and consistency of sentences available. And then I am required by the Act to impose the least restrictive outcome that is appropriate to your circumstances, including your personal circumstances.

Starting point

[20] Sentencing for manslaughter is always difficult. Deliberate criminality is easier to condemn. There is no tariff judgment for manslaughter.[3] Although the maximum penalty imposable is life imprisonment,[4] the circumstances of manslaughter cases and culpability vary greatly, as do the resulting sentences. Each case must be considered on its own facts. Finding a just sentence is difficult. On the

one hand manslaughter involves the loss of a human life. In these circumstances, the senseless loss of a young man with all his life ahead of him. No sentence I impose today will ever bring Mr Heagney back, nor make up for his death. On the other hand, manslaughter entails no murderous intent. In this case, there was no intention to harm Mr Heagney.

[21] The Crown submits that your omission to exercise reasonable care extended to releasing Mr Heagney when you knew he was semi-conscious and unable to protect himself. The Crown submits that a starting point between two and half to three and half years’ imprisonment is appropriate. It submits the following aggravating features apply:

(a) you were already aware the sleeper headhold could reduce the level of consciousness of Mr Heagney and you had been warned of the potential life-threatening dangers of using that hold;

(b) you dropped a semi-conscious person onto a footpath, which constituted gross neglect of your duty to exercise reasonable care;

(c) you were acting excessively in terms of self-defence, for any struggle with Mr Heagney has ceased and so the degree of force employed was

_{disproportionate to the situation you faced.}

[22] The Crown in its written submissions referred me to three cases it sees as comparable.[5] They are all what are termed “one punch” manslaughter cases. In R v Carmichael the events occurred in the early hours of the morning after drinking. Mr Carmichael punched the victim once in the head which rendered him unconscious. He then lifted him off the ground, asked if he was ok, but then again dropped him backwards on the concrete where he struck his head a second time,

resulting in his death. A three and half year start point was taken. In R v Efeso after an argument about a blocked in vehicle outside the TAB, Mr Efeso punched the victim in the face, causing him to fall the ground and lose consciousness. A start point of three and half years was taken in that case also. Finally, in R v Paku, again after drinking, a confrontation occurred in the early hours of the morning. A push to the ground caused the victim’s death. In that case a three year start point was taken.

[23] I have however real doubts as to the relevance of these cases, which all began with unlawful acts. Your case began with a lawful act, removal and then progressed to an unlawful act through want of care in its completion.

[24] For the defence your counsel, Mr Preston, characterises this case as one of gross negligence, a tragic case where the consequences outweighed your conduct. It is submitted for the defence that any aggravating features of the offence are covered within the nature of the offence itself. The defence submits a starting point of two years can be adopted, but that a sentence of home detention is ultimately appropriate and available.

[25] Mr Preston directs me to three cases seen by the defence as comparable.[6] In R v Steen, Mr Steen reacted violently to words of the victim and punched the victim twice, resulting in him banging his head on the ground. It was accepted he had reacted out of all proportion in striking the victim and a start point of two and half

_{years’ imprisonment was taken. In R v Timu both the victim and Mr Timu were}

drinking. Mr Timu punched the victim after he had made derogatory remarks to him. The starting point in that case is unclear but a final sentence of 18 months’ imprisonment was imposed after discount. In R v McWhannell Mr McWhannell was convicted of manslaughter in an incident whereby a young woman fell to her death as a consequence of Mr McWhannell’s failure to properly tie off a bridge rope swing. Justice Ronald Young did not set a start point for imprisonment. He considered an appropriate sentence in that case to be 400 hours community work and

$10,000 reparation. Again, all but the last of those three cases involve cases that begin with unlawful acts.

[26] Although the “one punch” cases entail some similarities to this case, including accidental killing and unnecessary confrontation, I do consider your culpability to be lower. You did not deliberately punch anyone. In fact you display no propensity for violence whatsoever. I also take into account that you were entitled to remove Mr Heagney, and I accept that your intention was removal rather than harm. I take into account that the charge of manslaughter is no longer one based upon unlawful assault. Your actions Mr King were not violent, but they were dangerous.

[27] In assessing the gravity of your offending I take into account that you used a hold which you knew was potentially dangerous. You knew it could reduce one’s consciousness, and the evidence establishes that it did so. You were entitled to remove Mr Heagney, but you failed to exercise reasonable care in doing so.

[28] On that basis I adopt in your case a starting point of two years’

imprisonment.

Personal aggravating and mitigating features

[29] There are no personal aggravating factors which require any increase to that sentence.

[30] There are three mitigating factors.

[31] First, your previous good character. You have no prior convictions whatever. You are entitled to a discount of 10 per cent - two and a half months.

[32] Secondly, remorse. I have already noted your pre-sentence report states you are extremely remorseful and I note your attempts to engage with the Heagney family. I have read the letter you wrote to Mr and Mrs Heagney. I do not doubt your remorse. It might have been volunteered more readily on the night of Matthew’s death, and thereafter. Nonetheless the plea of guilty entered on 10 October 2012 is itself an expression of remorse. It was conveyed on those terms at the time it was entered. It was received by the Court and the Heagney family on those terms at the time. I will allow you a further credit of 10 percent or two and a half months for remorse.

[33] Together those reduce your starting point to nineteen months’

imprisonment.

[34] Thirdly, you are also entitled to some credit for your guilty plea on the amended indictment. The Crown submit that the defence offer was only after extensive cross-examination of Ms Zuidema and Mr Wright-Munro and that you were therefore not entitled to full credit. It also appeared to me it followed the repeated playing of the CCTV footage which showed no loss of control of Mr Heagney as Ms Zuidema stumbled slightly on the bar step. Meaning that that did not contribute to Mr Heagney’s death. On the other hand I accept that the amendment to the indictment was a substantial change in position by the Crown, in that it meant that the Crown no longer alleged a deliberate throwing to the ground by you. I accept that that was a line you were entitled to draw and to defend, and that you are entitled to the full discount available once the Crown revised its stance. You will therefore receive a discount of 25 per cent against the nineteen month sentence that otherwise would have been imposed. It is a further discount of five months, taking you to fourteen months’ imprisonment.

An unnecessary, but repeated tragedy

[35] Before passing sentence on your formally I want to say something of broader import. This case is an unnecessary but repeated tragedy. The Courts are constantly seeing cases like this where the lives of families – both of victim and accused – have been torn apart by a momentary and thoughtless, and seemingly minor, assault or carelessness where the consequence proves fatal. They are sometimes called “one punch manslaughter” cases, but this case shows it can happen without a punch.

[36] Too many people seem to think that we live in a cartoon world where we can hit someone, or drop them to the ground, and they just get up, dust themselves off and carry on. But all too often they don’t get up, and never do again. The human skull is a remarkably fragile instrument. It is high time that that fact is more widely appreciated than it is.

[37] The expression for your calling Mr King – “bouncer” – is a misnomer. People do not bounce. The sooner all “crowd controllers” as they are called in the new legislation[7] – and the general public – come to appreciate this, the better. It can only be hoped that the legacy of young Matthew Heagney will extend to others who are aware of this case acting with greater prudence in the future.

Sentence

[38] Having reached a sentence under two years’ imprisonment this puts you in the range for consideration of home detention. In many manslaughter cases only a sentence of imprisonment will suffice. But in other cases that is not so. This is one such a case, one where home detention is appropriate. Such a sentence was also

_{imposed after your original conviction.}

[39] In terms of statutory sentencing requirements, it is the least restrictive outcome that I can impose in terms of the circumstances of both the offending and the offender. You have no previous convictions and you have a low risk of reoffending. It is appropriate therefore that you serve your sentence in the community. This will enable you to work and contribute to society, albeit with all the loss of liberty associated with that punishment.

[40] I do not consider that imprisonment is required to satisfy the sentencing purposes of deterrence, denunciation, and accountability. You, Mr King, will carry the loss of a young man and the very real stigma of a manslaughter conviction for all the rest of your life.

[41] You will therefore serve a sentence of home detention of twelve months, that being the maximum term permissible by law.

[42] I note that you served 39 days of home detention until it was suspended pending your appeal and subsequent retrial. I direct that that time be taken off the twelve month period.

[43] I record, and correct the position taken at the sentencing hearing itself, that the “Three Strikes” warning requirement under the legislation does not apply in your case, given the date of your offending.

Stephen Kós J

Solicitors:

Crown Solicitor, Blenheim

Public Defender’s Office, Southern Region

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[1] _{Crimes Act 1961, ss 155, 160(2)(b), s 177.}

[2] Her account was consistent with the CCTV footage; Mr Wright-Munro’s was not always so.

[3] The Court of Appeal have declined to do so: R v Leuta [2002] 1 NZLR 215.

[4] Crimes Act 1961, s 177.

[5] R v Carmichael HC Tauranga CRI 2007-070-2603, 6 September 2007; R v Efeso HC Auckland

CRI-2008-092-7925 24 October 2008; R v Paku HC Hamilton CRI-2005-019-6408,

7 September 2006.

[6] R v Steen HC Hamilton T033048 29 June 2004; R v Timu TO31152, 2 September 2003; R v

McWhannel HC Palmerston North CRI-2009-054-1094 29 July 2010; R v Ramstead CA 428/96

12 May 1997.

[7] Private Security Personnel and Private Investigators Act 2010.