R v Holman [2014] NZHC 438 (7 March 2014)

Last Updated: 12 April 2014

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2012-076-000589 [2014] NZHC 438

REGINA

v

JOHNNY GRANT HOLMAN

Hearing: 7 March 2014

Counsel: A R McRae and N Willcocks for Crown

JHM Eaton QC for Accused

Judgment: 7 March 2014

_{SENTENCING REMARKS OF WHATA J}

[1] Mr Holman you face sentence for one count of manslaughter. The maximum sentence of penalty is life imprisonment.

Facts

[2] I will now record the facts of the offending for the purposes of your sentencing. I have had the benefit of reviewing your interview helpfully provided by your counsel. I have also had the evidence of Mr Simpson, who was present when you attacked Mr Braddick.

[3] In the early hours of 11 May 2012 you met the victim, Mr Braddick, at Malbas Bar. Mr Braddick wanted to buy cannabis and you knew where to get some. You then travelled together to a York St address. You were joined there by three associates, including Mr Simpson. You and Mr Braddick went into the address and

_{obtained a cannabis tinnie. Mr Braddick then said he could not pay for it.}

R v HOLMAN [2014] NZHC 438 [7 March 2014]

[4] You returned to the house to give the tinnie to the vendor. You said to the vendor that you were going to give Mr Braddick a “hiding”. You then rejoined the others on the street and without warning head butted Mr Braddick. You also punched him, in your words, with three uppercuts to the head. He then fell to the ground at which point, again in your words, you kicked him twice to the head.

[5] Mr Simpson gave evidence that you kicked him three times to the head region “like real real hard, like... you’d kick a rugby ball or something, real hard”.

[6] You deny this and there were obvious problems with Mr Simpson’s evidence. He appeared to concede under cross-examination that he did not in fact see the kicks to the head. In any event, Mr Braddick was left bleeding and unconscious by your very serious acts of violence. I am prepared to accept that you initially interpreted a movement by Mr Braddick in your direction as potentially aggressive. But you were also intent, as you stated, on giving him a hiding. I will proceed to sentence you on that basis.

[7] By this time you realised that Mr Braddick was in a bad way and you left with your associates, without it appears providing medical assistance although Mr Braddick was found in a recovery position. You did however stop at a phone booth and called an ambulance. You said on that call that Mr Braddick was “out cold”.

[8] Mr Braddick died later that morning.

[9] Mr Sage, an expert pathologist, described the nature of the injuries in this way:

Shane William BRADDICK died at Timaru on 11 May 2012 between 03:00 and 4:00 in the context of a blunt force assault in which he sustained only relatively minor injuries including a broken nose and bruises and abrasions to central face. None of the injuries seen would be expected to cause his death. They are congruent with the account of his being struck forcibly in the central face. He was concurrently intoxicated with alcohol.

The only evidence of pre-existing disease found was the presence of an abnormally large heart and mild to moderate coronary artery disease.

[10] Mr Sage then explains that there were the following potential causes of death:

First is sudden cardiac death due to his pre-existing heart disease occurring in the context of the assault. He does show the pattern of cardiac enlargement associated with previous use of recreational drugs such as BZP, methamphetamine and its allied compounds. The extent of heart disease was not such that I would expect him to die unexpectedly but naturally at this time.

Secondly, there are published descriptions in the medical literature of an entity in which intoxicated young men collapse and die if struck in the central face even though they show no anatomical evidence of brain injury. The mechanism is not always apparent, though that listed above is often proposed.

He has no family history of natural premature sudden cardiac death and this would therefore be a very unlikely entirely coincidental event. Judging by the toxicology results he was not currently taking prescribed anticonvulsants or anti-psychotic medications so any potential role for them in causing sudden cardiac death can be disregarded.

Personal circumstances

[11] I turn now to your personal circumstances.

[12] Mr Holman you are 27 years of age. Your pre-sentencing report says that you were born into a dysfunctional setting and exposed to violence and drug taking at an early age. You have a close relationship with your mother and good relationships with your older sister and younger brothers. Your family supports you and have acknowledged your willingness to take full responsibility for your offending.

[13] The pre-sentencing report also records that alcohol has played a significant part in your life and that you are a frequent user of cannabis.

[14] The report also says that acting impulsively has always been a problem for you and that you did attend an appointment at the Community Mental Health Service Kensington Centre Timaru about your behaviour on 20 April 2012. It appears that at a relatively young age you gravitated towards gang involvement and that you came close to becoming a patched member of the Black Power while living in Palmerston North some years ago.

[15] You have never worked for any long period at a job between jail terms. It is noted, however, that since your last release you have signed up to complete a course at Washdyke Training Farm operated by Aoraki Polytechnic approximately two weeks prior to your arrest.

[16] The report also notes that you have a considerable offending history that dates back to 2003, predominantly of a dishonesty nature, but also comprising breaches, driving matters, drug offending and disorder.

[17] The report notes that you are highly motivated to address your offending needs and notes that the most relevant programme would appear to be the High Intensity Special Treatment Unit Rehabilitation Programme (STURP) for violent offenders. The report notes that you meet the criteria for entry into STURP.

[18] Your risk of offending is assessed as high, as is your likelihood of causing harm, based on your previous offending history and the nature of the current charge. Your ability to comply with a community based sentence is assessed as low, based on poor performance in the past and your self-assessment of needing considerable help with reintegration prior to release.

[19] The report also notes that you accept full responsibility for the charge of manslaughter and that you have expressed remorse. It is also observed that you had only recently come out of prison and that you had soon reverted to heavy drinking and daily cannabis use. The report notes that substance abuse on the night of 10/11

May 2012 has contributed to an aggressive and violent outburst aided by a lack of ability to control impulsive behaviour. A term of imprisonment is recommended. I note for completeness that you have used your time while incarcerated productively.

Victim impact statements

[20] I turn now to the victim impact statements.

[21] I have read the victim impact statements of John Arthur Braddick, Heather

Braddick, Hoi Ho George Wong, Lorna Thomas, Zara Cunniffe and Julie McIntosh.

[22] John Braddick is the victim’s father. It seems that John and the victim were estranged for a large part of the victim’s life but in recent months they had started to get on well. Mr John Braddick feels that he has been robbed of an opportunity to reconnect to his son, suffers from depression and has had to seek treatment.

[23] Heather Braddick is the victim’s mother and I acknowledge the courage to speak in Court today. She has become very angry as a result of your actions. She does not feel safe anywhere and has also fears for the safety of other family members. She had to terminate her employment because she could not cope and has trouble sleeping. She speaks of how Jacob, the victim’s son, misses and indeed yearns for his father.

[24] Mr Wong is a good friend of the victim. They studied together. He recalls how the victim died in May last year shortly before his exams and he ended up failing three of them. He says that the victim’s loss has left a hole in his life.

[25] Mrs Thomas is the victim’s grandmother. She describes how the victim’s death has taken a toll on her health, that she is finding it very difficult to sleep, suffers from headaches and neck pain due to the stress. She is bitter and angry about what has happened and she is also concerned about her daughter.

[26] Ms Cunniffe is the victim’s ex-partner. Jacob is their child. She has trouble coming to terms with the victim’s death and has become risk averse, especially in relation to Jacob. She speaks of the cost to her family both financially and emotionally. The thought of coming across you, Mr Holman, terrifies her.

[27] Mrs McIntosh is the victim’s older sister and she has only come into contact with the victim since he was a teenager. She describes his death as a huge loss to her and the family. She too now is much more protective of her family. She describes how this incident has sucked the life out of her. She says that the victim’s death has had a huge impact on her life.

Statutory framework

[28] In sentencing you Mr Holman I am guided by purposes and principles of the Sentencing Act 2002. I consider that in respect of your offending, it is particularly important to denounce your conduct, to deter others, but also to recognise that your rehabilitation is equally important. I also consider in cases such as this I must focus carefully on the gravity of the offending and the degree of your culpability. I must also seek to maintain consistency with appropriate sentencing levels and the requirement to impose the least restrictive sentence possible.

Submissions

[29] I have been assisted by the submissions presented by Mr McRae for the Crown and by your counsel Mr Eaton QC. I will not repeat them here. Where relevant I will touch upon them below.

My assessment

[30] Mr Holman, I am going to commence my assessment by identifying what is called a starting point for sentence.

[31] There is no fixed guideline for sentencing for manslaughter. But the guideline decision dealing with grievous bodily harm R v Taueki,¹ has been employed to provide assistance in this context, though some caution is needed.²

[32] In Taueki the Court provided three sentencing bands that might be used depending on the nature and context of the violence.

[33] I will not repeat descriptions of the bands here. Rather I prefer simply to observe that your offending falls by analogy within Band 2 given the presence of the following aggravating factors relevant to your sentence, namely:

(a) An attack with an intent to cause serious harm to the victim – this is not a case of a sudden impulse to act violently. You returned the

¹ _{R v Taueki [2005] 3 NZLR 372 (CA).}

² Murray v R [2013] NZCA 177.

tinnie to the York Street house, told the vendor that you would give Mr Braddick a “hiding,” went back outside and then head butted Mr Braddick. You therefore had the time to reflect on what you might do and you chose to strike Mr Braddick to the head with the heaviest and hardest part of your body. You must have known this would cause serious injury – even if you did not intend to kill him.

(b) The nature of the violence was ongoing – this is not a single punch manslaughter. You continued to strike him further at least five times, including when he was unable to properly defend himself.

(c) You did not stay to render substantial medical assistance even though it was plain to you that you had knocked him unconscious or in your own words he was bleeding and “out cold”. I temper this observation by acknowledging that it appears that you put Mr Braddick in the recovery position, and had the presence of mind to call an ambulance.

(d) The final relevant factor is that death ensued or resulted. I accept that Mr Braddick did not in fact die solely from the physical injuries he suffered. It was the combination of the violence and a pre-existing vulnerability that caused the death. But when violence of this nature is employed, there is always a risk that an underlying vulnerability might then elevate the risk of serious harm or death. In short, your acts of violence precipitated Mr Braddick’s death.

[34] Balanced against these aggravating factors, Dr Sage has noted that the physical injuries were not severe and this tends to suggest that your actions were not egregiously violent. And leaving Mr Braddick in the recovery position and the call for an ambulance showed a genuine degree of empathy.

[35] I have taken into account the submissions by Mr Eaton that “the evidence proves conclusively that all blows that landed must have impacted in the central face,” and that “Mr Braddick died from a cardiac event triggered by the confrontation/assault.” Mr Eaton goes on to suggest that this cardiac event could

have been suffered had Mr Braddick been ejected from the Malbas nightclub. There is then reference to Dr Sage’s report and the conclusion that none of the injuries could have been expected to cause death and these are points that distinguish this case from assaults that directly cause death.

[36] But Mr Holman, when you intended to mete out your violence on Mr Braddick, with the clear aim to harm him, and with the result that he was, in your words, “out cold”, I do not accept that it is available to you to claim an act of impulsivity or moderate violence.

[37] When I take these matters into account I consider that a starting point at the lower end of Band 2 of Taueki namely 6-7 years would, as the Crown suggests, appear to be appropriate.

[38] I have also tested this assessment by analogy to other manslaughter sentences. As I have said this case is worse than what have been described as single punch cases where starting points of five years were approved by the Court of Appeal (refer R v Ioata³ and Murray v R⁴). It has some similarity to R v Evans- Whatarangi⁵ and R v Tai,⁶ though I consider the latter case to be more serious, with

a vicious punch and a kicking blow to the head while the victim was on the ground unconscious and without rendering any aid whatsoever. Furthermore, in that case there was evidence that the physical violence caused a subdural haematoma leading to the death. The starting point adopted by the Court of Appeal for Mr Tai in those

_{circumstances was seven years.}

[39] In Evans-Whatarangi, the starting point adopted was five years six months. There was evidence of multiple blows to the head, causing significant physical injury. On its face the offending there was comparable if not worse than the present offending. But the sentence in Evans-Whatarangi must now be seen in light of the Court of Appeal decision in Tai and as between the two, I am obliged to take greater

_{guidance from the latter.}

³ _{R v Ioata [2013] NZCA 235.}

⁴ _{Murray v R [2013] NZCA 177.}

⁵ _{R v Evans-Whatarangi HC Hamilton CRI 2008-068-000609 3 December 2009, Potter J.}

⁶ R v Tai [2010] NZCA 598.

[40] Similarly, I consider the sentence in Neho v R⁷

_{direction now given to me in Tai.}

to be out of line with the

[41] I am therefore satisfied that a starting point of six years and three months or

_{75 months is commensurate with your violent offending.}

[42] Turning then to any aggravating or mitigating factors for you personally.

[43] Unfortunately you have a history of violent offending with a conviction for common assault, fighting in a public place, and assault with intent to rob. While those convictions by themselves could provide a basis for uplift, I think the better response is to impose a minimum sentence which I will address below.

[44] You have multiple convictions for other types of offending, but they are not relevant to this sentence.

[45] I consider however that there are three clear mitigating features relevant to you personally.

[46] First, you are clearly remorseful for what you have done. That is confirmed in your presentencing report, but is also evidenced by your actions on the day of the fatal attack. You went to the police to openly confess. I have seen the DVD of your interview. Your remorse and sadness at what you have done is palpable, and given your candour about the offending, plainly genuine.

[47] Second, you have participated in a restorative justice process. It affirms that you are remorseful. It also illustrates, in my view, a commitment to taking responsibility for your actions which is an important factor contributing to your rehabilitation.

[48] Third, you in effect agreed to plead guilty to manslaughter from a very early stage.

⁷ Neho v R [2010] NZCA 8.

[49] The first and second factors, remorse and your participation in a restorative justice process and rehabilitation factors, entitle you to a discount of 15%. You are also entitled to a maximum 25% discount for the early indication that you were prepared to plead guilty.

[50] Accordingly, in those circumstances, a sentence of 45 months or three years 9 months is warranted.

[51] As to a minimum term of imprisonment, I am satisfied that sentence alone is insufficient for the purposes of holding you accountable, deterring you and others from such violence and, in light of your prior history of offending, for the purpose of protecting the public from you. Indeed it appears that you have historically resorted to violence when it suited you to do so. That has had drastic consequences in this case. In addition, as the Crown noted, this offending occurred while you were subject to release conditions and you have 39 previous District Court convictions since 2004. There is therefore a pattern of conduct that must be reversed. So, even though you are remorseful Mr Holman, I am compelled to do what I can to deter that pattern of violence and other offending and to protect the public and to impress upon you that this type of offending must not be repeated.

[52] Mr McRae referred me to the fact that you have served 20 months in remand. I understand him to be suggesting that in light of this remand period, any minimum sentence should be tailored to ensure that you complete the STURP programme. But I think that this contrives an outcome rather than properly reflects a considered application of sentencing principles. While participation in the STURP programme is highly recommended, the end sentence must be commensurate with the offending. For completeness, nothing I say here is intended to influence the parole process. But it has to be said that you Mr Holman would plainly benefit from the STURP process.

[53] Accordingly, there shall be a minimum period of imprisonment of 50% of the sentence.

[54] Please stand Mr Holman. You are convicted on one count of manslaughter and I sentence you to three years and 9 months imprisonment. A minimum sentence of 22½ months must be served.

Three strikes warning

[55] I must also deliver a three strikes warning. [Confirms with counsel]

First warning

[56] Mr Holman given your conviction for manslaughter you are now subject to the three strikes law. I am going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice which contains a list of these ‘serious violent offences’.

1. If you are convicted of any one or more serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.

2. If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event the Judge must sentence you to a minimum term of imprisonment.

Solicitors:

Gresson Dorman & Co, Timaru, for Crown

JHM Eaton QC, Christchurch, for Accused