R v Ioata [2012] NZHC 3389 (14 December 2012)

Last Updated: 20 December 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2011-032-002799 [2012] NZHC 3389

THE QUEEN

v

JOHNATHAN IOATA

Counsel: P K Feltham for Crown

K F Preston and L S Collins for Prisoner

Sentence: 14 December 2012

_{NOTES ON SENTENCING OF COLLINS J}

Introduction

[1] Mr Ioata, you have been found guilty of manslaughter. It is my task to sentence you.

[2] This is a tragic case. Mr Sipaia’s death was totally unnecessary and it could easily have been avoided.

[3] Mrs Sipaia has described the hurt and the pain that she and her family feel each day over the loss of their husband, father and son. I am deeply impressed by Mrs Sipaia’s willingness to forgive you and her and her mother-in-law’s lack of animosity towards you. Mrs Sipaia and her mother-in-law are obviously very

_{remarkable and very Christian women.}

R V IOATA HC WN CRI-2011-032-002799 [14 December 2012]

[4] You appreciate that I must sentence you to a term of imprisonment. The only issue is the length of that term.

[5] I accept Mr Preston and Mr Collins’ submission that in sentencing you I must strive to:

(1) hold you accountable for the harm that you have done;1

(2) promote in you a sense of responsibility for the harm that you have done;2

(3) denounce your conduct;3

(4) deter others from committing the same or similar offences;4

(5) assist you in your rehabilitation and eventual return to society;5 and

(6) impose the least restrictive sentence that is appropriate in the circumstances.6

[6] In sentencing you I will start by setting a starting point. This is the length of the term of imprisonment which generally reflects the seriousness of your offending. I will then explain what adjustments can be made to the starting point to reflect the factors that are personal to you.

Your offending

[7] I need to explain the events that took place. I accept that a number of people who were there that night have different recollections of what they saw. One person

_{even claimed he was responsible for killing Mr Sipaia. He later acknowledged that}

1 _{Sentencing Act 2002, s 7(1)(a).}

2 _{Section 7(1)(b).}

3 _{Section 7(1)(e).}

4 _{Section 7(1)(f).}

5 _{Section 7(1)(h).}

6 Section 8(g).

his admission was false. The fact that there are various understandings of the facts reflects the unfortunate reality that:

(1) many of the people involved were affected by alcohol and possibly other substances;

(2) the punch that you threw occurred in the context of a gathering that involved a number of young people;

(3) the events in question occurred very quickly.

[8] On 13 September 2011 at about 9.15pm you and a group of associates were walking along High Street in the vicinity of Farmer Crescent.

[9] Mr Sipaia and two associates pulled up in a car near you and your group. I believe that Mr Sipaia and his two friends were in the area in response to a text message asking them to sort out an issue involving you.

[10] When Mr Sipaia’s car stopped one of your friends, Mr Maake, approached Mr Sipaia. A discussion took place. Mr Sipaia was slapped in the face. Mr Sipaia got out of the car. A fight started between Mr Sipaia and Mr Maake. It was mainly a one-on-one tussle. They ended up on the ground throwing punches at each other. Others in your group may also have hit Mr Sipaia. It is possible that a person by the name of Santana Ryland even hit Mr Sipaia with a bottle. Mr Walker and Ms Tutahione, two independent witnesses were certain they had seen one of your group hit Mr Sipaia with a bottle when he was on the ground.

[11] Mr Sipaia and Mr Maake got up. Neither appeared to have been adversely affected from their fight. There was evidence that Mr Sipaia was continuing to “mouth off” at Mr Maake and others in your group at this point.

[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 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”.

[14] This description of what occurred is entirely consistent with the pathology evidence given by Dr White who told the Court that in her assessment a fracture to the right side of Mr Sipaia’s skull was consistent with a punch being delivered to the right side of his head. Dr White said that the scenario of a punch hitting Mr Sipaia in the right of his head, knocking him to the ground, thereby causing his brain to bounce forward was consistent with the injuries she saw to the front poles of Mr Sipaia’s brain. Dr White said that although she could not discount the possibility of the injuries to the right side of Mr Sipaia’s head being caused by a bottle or boot, those scenarios did not comfortably fit with the brain injuries that she observed in the front portion of Mr Sipaia’s brain.

[15] From this evidence I deduce:

(1) Your punch was deliberate. (2) Your punch was powerful.

(3) Your punch probably knocked Mr Sipaia out. In any event he fell to the ground striking his head on the ground. His death was caused either by your punch, hitting the ground or a combination of those two events.

(4) Mr Sipaia did not see the punch coming and was not in a position to defend himself.

(5) Your punch was unnecessary and gratuitous.

(6) You intended to inflict serious harm when you threw this punch but you did not intend to kill Mr Sipaia.

Your circumstances

[16] The pre-sentence report reveals that you have had a very poor start to life. Your father appears to have been a man who was prone to violence. You left Taita College at the end of the fourth form with no qualifications. You have issues with alcohol abuse.

[17] In my assessment, your upbringing and environment when you were younger contributed to the events which unfolded on 13 September 2011.

[18] Sadly, you are typical of many young men in New Zealand. Your circumstances reflect a combination of poor upbringing, limited education, drug and alcohol abuse and a testosterone fuelled belief that you and your colleagues are bullet-proof.

The starting point

[19] I believe that I am justified in placing reliance upon the Court of Appeal’s judgment in R v Tai.7 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.8

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

7 _{R v Tai [2010] NZCA 598.}

8 R v Taueki [2005] 3 NZLR 372 (CA).

imposed in similar manslaughter cases.9 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.10 This uplift, however, should be considered with “some care” to ensure that the starting point is not disproportionate to the offender’s overall culpability.11

[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.12 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. That is best explained by considering two scenarios:

Scenario 1

In Scenario 1 the defendant deliberately punches the victim in the back of the head with a single powerful punch that kills the victim.

Scenario 2

In Scenario 2 the defendant punches the victim in the chest with a moderate punch. The victim stumbles backwards, falls to the ground striking their head

_{and dies.}

9 _{At [12].}

10 _{At [12].}

11 _{At [20].}

12 R v Tai [2010] NZCA 598 at [11].

Both are instances of single punch manslaughter. However, the defendant in scenario 1 is far more culpable and deserving of greater punishment than the defendant in scenario 2.

[22] After careful consideration I am satisfied yours is a case where serious injury was intended and that accordingly your case is closer to the first scenario rather than the second scenario I have just referred to. I have explained my reasons for reaching this conclusion earlier.

[23] The particularly aggravating features of your behaviour were:

(1) the gratuitous nature of the assault and the vulnerability of Mr Sipaia

(which I see as being intertwined);

(2) the fact that you struck Mr Sipaia in the head; and

(3) the fact that the punch caused Mr Sipaia’s death.

[24] In this context I set a starting point of five years’ imprisonment. This is at the

bottom end of band two of Taueki.

[25] This outcome is also consistent with the Tai case in which the Court of Appeal found a starting point of seven to eight years would be justified. In that case Mr Tai had swung a powerful punch at Mr Vercoe, the victim. This caused Mr Vercoe to fall face forward onto the ground where he hit his head on concrete. Mr Tai then went and kicked Mr Vercoe with some force in the head.

[26] I instantly accept that your circumstances are such that there was no subsequent assault or kick. However, your intentional forceful punch to Mr Sipaia is analogous with Mr Tai’s initial punch to Mr Vercoe.

Adjustments

[27] I have considered carefully whether I can reduce the sentence by any amount to reflect factors that are personal to you. I have read the pre-sentence report very

closely which attests to what I believe to be both genuine remorse on your part and a high level of motivation to attend intervention treatments for your alcohol abuse. I have also considered your relatively young age at the time of your offending.

[28] I have decided to allow a small discount of three months to reflect these factors.

[29] I can find no other factors that would affect the sentence that should be imposed. In particular your previous convictions are not relevant to the sentence that I am imposing.

Overall assessment

[30] Before reaching any final sentence I have reflected on whether or not a sentence of four years nine months’ imprisonment is a fair and proportionate response to your offending and whether it reflects the principles that I must strive to achieve set out in the Sentencing Act 2002. In my assessment a final sentence of four years nine months’ imprisonment is appropriate.

Conclusion

[31] Mr Ioata, could you now please stand.

[32] You are sentenced to four years nine months’ imprisonment.

_{[33] You may now please stand down.}

Solicitors:

Crown Solicitor, Wellington

Public Defence Service, Wellington for Prisoner

D B Collins J