R v McFarland [2014] NZHC 1106 (23 May 2014)

Last Updated: 23 May 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-004-012244 [2014] NZHC 1106

THE QUEEN

v

_{GRENVILLE DAVID McFARLAND}

Hearing:	23 May 2014
Appearances:	W Cathcart for Crown RM Mansfield and H Stuart for Defendant
Judgment:	23 May 2014

_{SENTENCING NOTES OF ANDREWS J}

R v McFARLAND [2014] NZHC 1106 [23 May 2014]

Charges

[1] Mr McFarland you appear for sentencing today having pleaded guilty to a charge of manslaughter. You will have been advised that the maximum penalty provided by law on conviction for manslaughter is life imprisonment.

Relevant Facts

[2] In the early hours of 2 November 2013, following a night out drinking with a friend, you went to a takeaway restaurant with a group of people whom you had just met. While you were waiting for your meal the victim, Mr Asthana and his flatmate, arrived at the restaurant and also ordered. They, too, had been out drinking for the night.

[3] Shortly after you had ordered, one of the people in your group dropped a drink. Mr Asthana began slow clapping, but then came over to you and shook hands with you. Mr Asthana then blew a piece of a drink straw wrapping into the face of one of your female companions. He said to her that she was just, in his words, “standing there looking good ... if it had been anybody else I wouldn’t have done it.” Later, while you were eating, Mr Asthana came and talked to the same woman, and complained about the service at the restaurant. Your female companion and her friend responded that they had only just ordered, and they then ignored Mr Asthana.

[4] You then went outside to wait for a bus. Your female companion also came outside, to smoke. While she was standing there Mr Asthana walked out of the restaurant heading for a taxi and, on his way past this woman, slapped her hard on her buttocks causing her to swear at him and tell him not to touch her. Mr Asthana, however, simply continued towards his taxi.

[5] At this point you placed your food on the ground and approached Mr Asthana. Then, although Mr Asthana had not taken any action towards you, you punched him once in the face with your right hand. The punch was delivered with significant force. Mr Asthana fell backwards without attempting to break his own fall. His head struck the ground heavily.

[6] You and your associate then left together. You made no attempt to help Mr Asthana or to get anybody else to take care of him. Mr Asthana was bleeding from his nose and mouth and fell unconscious. He was taken to Auckland Hospital by ambulance where he was placed on life support. Sadly he was pronounced brain dead and his life support was turned off some three days later.

[7] You pleaded guilty in this Court on 19 February 2014. Your sentencing has been adjourned awaiting the outcome of two restorative justice conferences. Those conferences were attended by you and your parents, and Mr Asthana’s mother and sister. I have read the report of each of the conferences. I accept, and I appreciate, the involvement of all of you. That is you and your family Mr McFarland, and Mrs Asthana and your daughter in the restorative justice process.

Victim impact statements

[8] Two victim impact statements have been filed. You have heard Mrs Asthana’s read this morning. As she said, she came to New Zealand eight years ago to give her two children a better life. Her son loved the outdoors and had a real affinity with children which is why he went into teaching. Her son was intelligent, well spoken, well read, generous and helpful to his friends. She was wary of his drinking and would often imagine the worst happening to him. And that happened, she says, on the morning of 2 November 2013 when all her dreams, plan and hopes for her son were taken away. Naturally she was devastated.

[9] Mrs Ashtana’s faith in God and her spirituality have kept her from losing herself. She has slowly been able to look at her son’s death as part of the bigger picture and in a more positive way. She has been overwhelmed by the number of hearts he had touched. But she goes on to say that she believes that you never thought that your blow would kill her son, and she hopes in time that you will realise there is a better way of dealing with a situation than with a fist.

[10] Next I refer to the statement from Mr Asthana’s flatmate. She has struggled to come to terms with the loss of her close friend. She has suffered ongoing stress and anxiety; she has felt anger and blame towards you. She has become fearful of going into the centre of the city and bars since the incident, and she has flashbacks of

Mr Asthana in a coma. She feels guilt that she could do nothing to change the situation of his death. She has difficulty believing that he died so suddenly at the hands of someone who, she says, should have known better. She misses Mr Asthana every day.

Pre-sentence report

[11] I turn now to consider the pre-sentence report. You are 27 years old. The pre-sentence report writer records that you were a Combat Weapons Specialist for the Navy prior to this offending. The report writer records that you said that you did not intend to cause significant harm to Mr Asthana. You reacted impulsively, in a protective manner towards to the female who was upset. The report writer considers that you have insight into your offending and you have taken full responsibility. You are remorseful and at that time you had been attempting to apologise to Mr Asthana’s family, and we knowledge that you have subsequently done that.

[12] Although you have three previous convictions, you are assessed as being at a low risk of re-offending and causing harm to others. You are not considered to have any rehabilitative needs.

[13] I have read the character references submitted on your behalf. Your sister, Nicola, talks of your remorse; the fact that you are a dedicated father; and your attempts to pursue a military career. She says you have never taken action with the intention of causing harm and you have never been known as a troublemaker. You have traditional values and you respect others’ time and viewpoints.

[14] Another friend, Ms Clearwater, also provided a reference. You have a friendly and loyal nature and she has never feared you or had concern for anyone in your presence.

[15] Your father has said that you are dedicated and hardworking, you are willing to help others and you have expressed deep remorse. Other family members speak of you as an upstanding young man with good moral character, an honest person, and they say that your actions were unexpected but done with the aim of protection.

[16] I have read a letter from you to Mr Asthana’s family, written very recently. You expressed your appreciation that they had allowed you the opportunity to meet. You realise that if you had handled the situation on the night differently, life would have been very different for all or you. You grieve for the fact that you cannot reverse what happened. You now want to try to prevent situations like this from happening to anyone else, by educating others. You said you never intended to cause Mr Asthana any injury, but you reacted without thinking, and you didn’t take the time to consider things from his point of view. You accept that there is no excuse or justification for your response, and you will never quite understand why you reacted as you did.

[17] Finally, I have read a psychologist’s report that was provided to me this morning. The psychologist reports that you have immense feelings of guilt, shame, remorse and sorrow, and that the guilt and shame are overwhelming. You have spoken in a respectful and honest manner about the incident and those involved. The psychologist considers that your action on the night may have been the result of a very intense and deep-seated protective instinct towards women. You have been working through the emotional triggers and unconscious processes that occurred. The psychologist recommends that you continue with long-term psychotherapy.

Sentencing process

[18] The first step in sentencing you Mr McFarland, is to establish what is referred to as the starting point. The starting point is the sentence that would have been imposed if you had been convicted after a trial in court. The second step is to take that starting point and decide what the appropriate sentence is for you, for this offending. I do this by considering whether there are any aggravating or mitigating factors that make the offending more or less serious. I also consider matters that relate to you, personally, because these may lead me to increase or decrease your final sentence.

[19] When I sentence you I have to take into account the purposes and principles of sentencing. With respect to the purposes of sentencing, I have to hold you accountable, that is, to make you responsible for your offending, and to acknowledge

the harm that has been caused. I have to consider deterrence – of you and others – and the protection of the community. I also have to denounce your offending, which means to tell you that your offending cannot be tolerated. At the same time, the purpose of sentencing you is to help you to get back into the community and to be a useful member of it.

[20] In your case the relevant principles of sentencing are the gravity of the offending, including the degree of your culpability, the seriousness of your offending compared with other types of offences, and the general desirability of maintaining consistency in appropriate sentencing levels. I must take into account any information provided about the effect of your offending on the victims. I must take into account the outcomes of the restorative justice process that has occurred. Finally, I am directed to impose the least restrictive outcome that is appropriate in the circumstances.

Starting point

[21] For the Crown, Mr Cathcart submitted that this is what can be characterised as a “single punch” manslaughter case. He referred me to two Court of Appeal judgments in which the Court held that the appropriate starting point in a “single punch” case is around three to four years’ imprisonment.¹ The starting point will be higher where culpability is higher depending on the offender’s intention and the nature of the violence actually used.

[22] Mr Cathcart submitted that your offending was made more serious by the fact that you attacked Mr Asthana’s head with force, and by your conduct immediately after punching him. You did not provide assistance to Mr Asthana, but you left the area. Mr Cathcart submitted that there are no factors which make the offending less serious.

[23] Mr Cathcart submitted that the starting point should be four years’

_{imprisonment, and he referred me to previous sentencing decisions in support of}

¹ See Kepu v R [2011] NZCA 104 and R v Tai [2010] NZCA 598.

that.² Mr Cathcart stressed, in particular, the importance of the factors of denouncing the taking of another person’s life; of holding you accountable; and the need to deter others. That is, other people need to know that similar actions will be met with a strong reaction.

[24] Mr Mansfield strongly submitted to me that a sentence of imprisonment is not required to meet the purposes and principles of sentencing, the circumstances of the case and your own circumstances. Mr Mansfield submitted that a starting point of no more than three years six months is appropriate, taking into account Mr Asthana’s behaviour before the incident; the nature of the violence; and your actions following the incident. He submitted that this was a case where the injury was serious but the violence itself was not. He described it as an unintended tragedy. Further, Mr Mansfield submitted that the fact that you did not provide assistance after the punch should not be regarded as a factor making your offending more serious. He submitted that it was possible that if you had stayed given that other people, he said, were attending to Mr Asthana, that may have exacerbated the situation.

[25] Mr Mansfield also referred me to the starting points in other cases and in particular he referred me to cases where starting points of three and a half years or three years nine months were imposed.³ He submitted that in your case the actual conduct was a single impulsive punch which in itself may not have caused Mr Asthana’s death. Although he accepted that there was force in the punch, he submitted that the violence was not inherently serious in that it was not a blindside punch and he went on to submit that had the consequences been different, this might have been a charge of common assault

[26] When the Court sentences on a manslaughter conviction, the Court cannot refer to a tariff case such as we can in cases of other types of offending. This is

_{because the circumstances in which a manslaughter occurs vary so greatly that the}

² Murray v R [2013] NZCA 177, R v Ioata [2013] NZCA 235 and R v Bryenton HC Auckland CRI

_{2009-004-3080, 7 April 2009.}

³ R v Larson HC Dunedin CRI 2011-012-1013, 6 July 2011; R v Grafton HC Christchurch CRI

2010-009-16104, 23 November 2011; R v Needham HC Wellington CRI 2010-085-5780, 14

December 2010; and R v Esefo HC Auckland CRI 2008-092-7295, 24 October 2008.

courts have considered it not wise to create a tariff decision.⁴ In the case of Murray v R, the Court of Appeal noted that an analysis of comparable cases may often be the best guide.⁵ I accept that advice and therefore turn to look at starting points adopted in the cases that have been referred to me.

[27] In the case of Murray, Mr Murray punched the victim outside a bar and the victim died. The victim had knocked into the group of four people that Mr Murray was with and some of the group had assaulted him before a doorman intervened. Mr Murray pushed the victim away. The victim verbally abused Mr Murray and his companions. Mr Murray then went up to the victim and punched the victim with his right hand (with as much force as he could manage) to the left side of the victim’s face. The victim fell back, hitting his head on the concrete. The Court of Appeal upheld a starting point of five years’ imprisonment

[28] The next case I refer to is Ioata. Mr Ioata had been walking late in the evening with associates when they were approached by the victim. One of Mr Ioata’s group slapped the victim in the face and a fight started between those two men. Mr Ioata then approached the victim in a way that meant that the victim did not see the punch that he threw. He punched him deliberately and forcefully in the side of his head and the punch knocked the victim to the ground. Death occurred as a result of the punch which had caused him to collapse, resulting in a heavy impact to the skull. The starting point there of five years’ imprisonment was upheld on appeal.

[29] In the case of Bryenton, Mr Bryenton and his associate were walking home after they had been drinking heavily. They got into an argument. The victim, a

61 year old man, was walking home at the time and accidentally knocked over Mr Bryenton’s can of drink, which he had put on the ground. Mr Bryenton punched him in the face, causing him to fall to the ground and his head hit the road. Mr Bryenton then fled. The punch was of at least moderate force and a starting point

_{of four years’ imprisonment was adopted.}

⁴ _{See R v Witika [1993] 2 NZLR 424 (CA) at 459.}

⁵ Above, n 2, at [27].

[30] In the case of Larson, Mr Larson got into a verbal altercation with the victim (after drinking) which ended with shaking hands once security intervened. Then without warning, Mr Larson then hit the victim on the side of the head. The victim fell, struck his head on the floor, and later died. The sentencing Judge found that the punch was not premeditated and adopted a starting point of three and a half years’ imprisonment.

[31] In the case of Efeso, Mr Efeso blocked the victim’s car while he went inside the TAB. Mr Efeso and the victim argued about this and Mr Efeso then punched the victim in the face. The victim fell to the ground and lost consciousness. Mr Efeso provided assistance once he realised how badly the victim was hurt. With reference to that fact and the fact that there had been an element of provocation; a starting point of three and a half years’ imprisonment was adopted.

[32] In the case of Grafton, Mr Grafton had been shouting and screaming when he was approached by the victim. He and the victim had some discussion and Mr Grafton punched the victim with a closed fist. The victim fell, hit his head and later died. There the starting point was three years and nine months imprisonment.

[33] In the case of Needham, Mr Needham and the victim in that case were engaged in a fight and had been taunting each other to throw the first punch. Mr Needham hit the victim with a straight right jab to the mouth, and then with a left hook that knocked out three of the victim’s teeth. The victim fell backwards and the back of his head hit the tarseal with force. He died in hospital four days later. The Judge there adopted a starting point of three and a half years’ imprisonment.

[34] Having considered the cases I have just referred to I have concluded that Ioata is clearly a more serious case than yours, because Mr Ioata had intended to cause serious injury, and he punched his victim in such a way that the victim could not see the punch coming. That was what Mr Mansfield was describing as a blindside punch. The case of Murray is also more serious than yours because it was found there had been no provocative conduct in that case. I accept that there was an element of provocative conduct in your case..

[35] There are real similarities between your case and those of Larson, Bryenton, and Grafton. You hit Mr Asthana to the head with force, albeit after some provocative behaviour, but you did not check to see if he was injured, you did not provide any assistance, and you immediately left the area. I do not consider that any possibility of exacerbating the situation excuses your not having even checked to see what had occurred.

[36] Having taken all of the circumstances of your offending into account, I have concluded that the starting point must be four years’ imprisonment.

Personal factors

[37] I now turn to consider matters that relate to you personally. Mr Mansfield submitted that I should take into account as mitigating factors the lack of any relevant convictions; the support of your family, the Navy and in the community; the punitive effect on you of your having resigning your position in the Navy; the fact that you have been on bail for six months without any issues having arisen; your full engagement in the restorative justice process; your extreme remorse; your willingness to become involved in programmes to educate others about the consequences of incidents like this one; and your willingness to donate to a charity of the Mr Asthana’s family’s choice. In respect of those matters which Mr Mansfield described as truly remarkable, Mr Mansfield submitted a discount of 18 months should be allowed.

[38] Mr Mansfield also submitted that you should receive a further discount of

25 percent on account of your guilty plea. He submitted that you should be eligible to be considered for a sentence of home detention, and, as I have said already, he submitted that such a sentence is appropriate.

[39] Mr Cathcart accepted that your previous convictions are not relevant for the purposes of your sentencing today, and should not be considered as an aggravating factor. He also accepted that a discount may be applied for the mitigating factors that have been set out. Mr Cathcart also accepted that your guilty plea was entered at the earliest realistic opportunity and that you are entitled to the maximum available discount for that. As to the restorative justice processes Mr Cathcart

accepted that your involvement can be taken into account. He accepted that you have expressed genuine remorse, and that you have apologised sincerely and genuinely to Mr Asthana’s family. You will recall Mr Cathcart speaking very warmly of Mrs Asthana’s acceptance of your apology.

[40] On the question of home detention, Mr Cathcart submitted that a non- custodial sentence would not be a sufficient denunciation of your conduct or a sufficient deterrent to others. He accepted that no deterrence was required for yourself.

[41] I accept that your deep and genuine remorse is well demonstrated by your participation in the restorative justice conferences, and in what you have written in the affidavit that has been filed, and in your letters that have been referred to me. That justifies a deduction from the starting point. So, too do the matters such as the effect on your engagement with the Navy which has said to have been a long-term ambition of yours; your willingness to be involved in programmes to educate others; and to make a donation to a charity. In terms of the relevant section of the Sentencing Act, which is s 10(2), I accept that your wishes are genuine and that they are capable of fulfilment. They can be regarded as a mitigating factor but as the

Court of Appeal said in the case of Buttar⁶ to which Mr Cathcart referred, violence

does require a firm response.

[42] I have concluded that a deduction of ten months (which is approximately

20 percent) is appropriate for those factors, taken together. That adjusts the starting point then to three years two months’ imprisonment.

[43] I also accept that you entered your guilty plea at an early opportunity, and in fact at the earliest realistic opportunity. In recognition of your guilty plea, the sentence will be reduced by a further ten months to two years four months’ imprisonment.

[44] Mr McFarland, in the circumstances of that conclusion the question of whether a sentence of home detention should be imposed rather than imprisonment

⁶ R v Buttar [2008] NZCA 28 at [25]- [27].

cannot arise. However, I indicate to you that even if I had concluded that a sentence of less than two years’ imprisonment was appropriate, I could not have concluded that home detention was the appropriate sentence for the offending. You punched a man with sufficient force that he fell backwards onto the ground and he was unable to break his fall. You did not check to see if he were injured, and you did nothing to assist him. I have concluded that a sentence of imprisonment is necessary to recognise these facts, and the loss of Mr Asthana’s life.

Sentence

[45] Would you please stand. Mr McFarland, on the charge of manslaughter you are sentenced to two years and four months’ imprisonment. I recommend that a copy of the psychologist’s report I have referred to is provided to the Prison authorities so that the recommended psychotherapy can be continued.

_{Would you please stand down.}

Andrews J