R v Hetaraka [2015] NZHC 2631 (27 October 2015)

Last Updated: 27 October 2015

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-085-8441 [2015] NZHC 2631

THE QUEEN

v

_{HARIBOY HETARAKA}

Counsel:	S C Carter for Crown R B Squire QC and I D Hay for Defendant
Judgment:	27 October 2015

_{SENTENCING REMARKS OF ELLIS J}

[1] Mr Hetaraka, as you probably know, there are thing I need to say as part of sentencing you today. You can sit down while I am saying them and then I will get you the stand up at the end.

[2] Mr Hetaraka you are for sentence today after a jury found you guilty of the manslaughter of Clark McCulloch. The maximum penalty for manslaughter is life imprisonment, which reflects just how seriously the law views the taking of another person’s life.

[3] But the law also recognises that all manslaughter cases are not the same, and sometimes the circumstances of a case are such that imprisonment is not the appropriate sentence. So one of the main questions for me today is whether or not a non-custodial sentence is possible and appropriate in your case, whether home

_{detention is the least restrictive available sentencing outcome.}

R v HETARAKA [2015] NZHC 2631 [27 October 2015]

[4] As you probably know, there are a number of things I am required to consider and to say to you as part of the sentencing process. And I need to begin with the facts.

Facts

[5] At about 11 o’clock on the morning of 1 July 2014, Mr McCulloch and his sometime partner [Ms C] were walking up Brooklyn Road towards Central Park in Wellington. Ms C’s evidence was that Mr McCulloch had already consumed one and a half bottles of vodka that morning. She said that she had persuaded him to walk with her up the road to the park, in the first instance to dispose of the empty vodka bottle which she had put in a plastic bag. But Mr McCulloch and she were arguing quite loudly and there was a tussle between them after he dropped the bottle in the gutter and tried to stop her picking it up. One witness who was within earshot at the time said that he heard the sounds of bottles clinking and a woman in distress. There was evidence at the trial, which I accept, that Ms C was, at about this point, trying to get Mr McCulloch to leave her alone and to get away. One witness heard her shouting at him to “fuck off”’.

[6] As all this was occurring you were upstairs in your flat which was just across the road. You also heard what was going on. You went out onto the balcony of your flat and saw Mr McCulloch pushing and struggling with Ms C and you shouted out to him to stop it, to cut it out. Mr McCulloch’s response was to yell back that it was none of your business and to call you a “nigger”. After you threatened to call the police and shouted at him again to leave the woman alone Mr McCulloch said something like “Come down here and stop me, nigger”.

[7] So you went downstairs and out on to Brooklyn Rd. You crossed the street to where Mr McCulloch and Ms C were. You said in your statement to Police, and I accept, that your immediate goal was to “occupy” Mr McCulloch so that Ms C could get away from him. And that seems to be pretty much what happened. Some words were exchanged between you and Mr McCulloch, while to use your phrase, Ms C “gapped it” down the street.

[8] Ms C said that when Mr McCulloch was drunk he was very unpleasant, angry and aggressive. I accept entirely that he was all those things on the morning of

1 July. I need to mention that he was taller than you, but of a slighter build.

[9] What you later said to the Police happened next, after Ms C had moved away, was that Mr McCulloch stepped right in close towards you. He was telling you to stay out of his relationship. He was angry and aggressive and you thought he was going to hit you. So you punched him on the chin or jaw. He fell backwards and hit the right side of his head on the pavement, knocking him unconscious. Because he was drunk, Mr McCulloch was already unsteady on his feet and he made no attempt to break his fall, I suspect also because he was intoxicated.

[10] Because it is important, I record that, by itself, the punch you delivered – which was described during the trial as a “short jab” – did not by itself cause any discernible internal or external injury to Mr McCulloch and, similarly, as Mr Squire said this morning, did not cause any damage to your hand or knuckles.

[11] When Mr McCulloch fell over, you immediately went back across the street towards your apartment. Others who had witnessed what had happened tended to Mr McCulloch and called an ambulance. He was taken to hospital and he regained consciousness. But his condition fluctuated over the next few weeks, and he died on

16 September 2014. Although there was an issue at the trial about whether your hitting Mr McCulloch was a substantial and operating cause of Mr McCulloch’s death the jury clearly found that, based on the medical evidence, it was.

[12] Your principal defence at trial was that you were acting in self defence when you punched Mr McCulloch. The jury ultimately rejected that defence but I agree with the logic of the submissions made about that by Mr Squire today. He said that, based on the questions asked during the deliberations, and the order of the questions, the jury must have accepted that the punch was genuinely defensive, in the circumstances as you perceived them to be on that morning. So I also agree with Mr Squire that the jury must, in the end, have rejected the defence because they thought that, viewed objectively, the force used was excessive.

[13] So those are the facts. The facts about how you came to be responsible for

Mr McCulloch’s death. Now I need to say something about you personally.

Pre-sentence report

[14] Mr Hetaraka, you are 43 years old. You are of Ngapuhi descent. You have two teenage children with whom you do not live but for whom you pay child support. You had I think a difficult upbringing.

[15] Perhaps unfortunately, you were not particularly helpful to the pre-sentence report writer who recommends imprisonment as the appropriate sentence today. The report notes that violence has played a significant role in your criminal history, which includes, most significantly, a serious assault on your former partner for which you were sentenced to six years imprisonment in 2008. Due, I think, to your non-co- operation with the parole process you served all of that sentence. I also need to note that after you were released you breached your release conditions twice, although you were convicted and discharged for those. Other matters mentioned in the report suggest that your attitude to the Probation Service has not been particularly positive or constructive. As I have said, that is not helpful to you.

[16] But I do, however, tend to agree with Mr Squire that aspects of the pre- sentence report are not entirely fair. In particular, I accept what Mr Squire said about the report writer not really acknowledging the mitigating aspects of what you did on

1 July and, in particular, that you had gone to the aid of a woman you thought needed help; and (as I have said) that the jury accepted that you punched Mr McCulloch to defend yourself, rather than just as a means of conflict resolution. Nor am I able to accept that calling the Police, rather than attempting to intervene on Ms C’s behalf, was necessarily the obviously better option on that morning.

[17] In those circumstances I do not consider the fact that you continue to maintain that you acted in self defence is unreasonable or should count against you in terms of remorse. The jury accepted that, viewed subjectively, that was so.

[18] Although the report writer also talks about your historic “pattern” of violence

I also accept that in fact you have no convictions at all between 2002 and 2008,

which you have advised Mr Squire was the result of a conscious decision to turn your life around following the birth of your children. And while you did not want to talk to the report writer about your former gang affiliation you have told Mr Squire that you cut your ties with the gang a long time ago, before you moved to Wellington in 2001. Your criminal history, and in particular the gap between 2002 and 2008, generally supports what you have told him.

[19] Lastly I need to mention your current job and the very positive reference I have received from your employer. You have worked for him as a concrete driller for 13 months now and he is sufficiently impressed with you that he says he would offer you a job on your release from jail, if you are imprisoned today. That is very much to your credit.

Victim impact

[20] Ms C has filed a victim impact statement. She says that she was in an on- again off-again relationship with Mr McCulloch for about six years although she had known him for longer. She says that when he was not drinking he was a good companion to her. She loved him and misses him every day although she acknowledges that alcohol was his downfall, which it certainly was. Something that he could not beat.

[21] So it is important to remember and to record that although Mr McCulloch was a person who had perhaps made some bad choices and who obviously battled with his demons, he was a real person, a person who was loved and a person who did not deserve to die when he did.

Starting point

[22] The first step in deciding what sentence I should impose is to establish what is referred to as the starting point. The starting point must reflect the facts of the case, taking into account what we call the aggravating and mitigating features. That is, the bad and the good. I have already referred to some of these but will mention them again. None of them in your case are negative.

[23] In terms of the particular features of your case that have influenced the starting point I propose to adopt, there is firstly the fact that your encounter with Mr McCulloch was largely motivated by good intentions, your desire to intervene to help Ms C, a stranger who you saw was being badly treated by him in public and seemed to be at risk of real physical harm. Your actions (prior to the punch) did in fact mean that she was able to retreat and to get away from him.

[24] As you may know there has been a lot of publicity recently about single punches which cause someone’s death and there have been calls for higher sentences in those cases. But I do not consider that your case is similar to any of those. You had not been drinking, there was no bar-room brawl. You did not punch Mr McCulloch hard and did not intend him any real harm.¹ It was a matter of very bad luck – for him and for you – that he fell as he did. And as I have said I accept, as did the jury, that the punch was genuinely defensive. The very serious harm that actually resulted, Mr McCulloch’s death some weeks later, was far from being an

obvious, or even reasonably possible, outcome.

[25] And there is also an element of provocation which I take into account; no one should use the words that Mr McCulloch used to you that day. He may have been drunk but what he said to you was completely inexcusable.

[26] Although Ms Carter submitted that your failure to call an ambulance should count against you I regard that as a neutral factor. It would have been quite clear that there were others who were attending to that and Mr Beedles gave evidence that he encouraged you to come back to his flat for a cup of tea, to calm down.

[27] In setting the starting point it is important to recognise that what you did had the most serious of consequences and to hold you accountable for that. Although denunciation and deterrence will always be relevant in a case where someone has died as a result of an act of violence, those principles are necessarily tempered in

_{your case because of your positive motivation and the genuine self-defence aspect.}

1. For this reason I reject any suggestion that the Taueki principles and guidelines are useful in setting the starting point: Pokai v R [2014] NZCA 356.

[28] Taking all these things into account and the various similar and dissimilar cases to which Ms Carter and Mr Squire have referred me I consider that the appropriate starting point in your case is one of two years imprisonment. In my view that starting point is consistent with those cases which have the most similarity to yours and reflect as well the particular and unusual mitigating features of your case which I have just spoken about.

Personal factors

[29] Having arrived at the starting point I must next consider matters that relate to you personally and whether they mean that the starting point should move up or down. The main issue here is your previous convictions involving violence. Ms Carter says that the starting point should be increased by between three and six months for these.

[30] Your pre-2002 convictions I regard as historic and less serious. They play no real part in my analysis today. So the potential difficulty for you is your 2008 conviction for that serious assault.

[31] I begin by noting though that there is no real similarity between what you did to your ex-partner back then and what happened with Mr McCulloch. And it is, I think, relevant to note that you pleaded guilty to the two charges and so it might fairly be said that you took responsibility for what you did more or less from the start. I have already noted that you served your full sentence, although that is not something that necessarily counts in your favour.

[32] Mr Squire also submitted that the critical issue when deciding whether the starting point needs to be increased on this account is whether the starting point I have adopted is insufficient to recognise and reflect the applicable sentencing principles and, in particular the need for deterrence which, as I have already mentioned, has only quite limited application in the circumstances of your case.² So

_{in the end I agree with Mr Squire’s submission. There will be no uplift.}

² R v Arthur [2005] 3 NZLR 739 (CA) at [26].

[33] Obviously I am unable to reduce the starting point for a guilty plea because there was none. Equally, however, it cannot be said that this is a case where the evidence against you was so strong that going to trial was an exercise in futility that it has put the Crown to an unnecessary or avoidable expense. On the contrary, I consider that an acquittal on the grounds of self defence was always a genuine possibility and was properly run. I also accept that certain steps taken by Mr Squire on your instructions during the trial did shorten its duration and therefore the cost to the state.

[34] For the reasons I have already given I do not accept that the fact that you took this case to trial meant that you have no remorse; there is a Catch 22 element to that submission which I do not care for. And I have watched your DVD interview with Police (twice). From my perspective you did appear to be genuinely remorseful about what had happened, even before Mr McCulloch had died. I accept unreservedly that you did not intend to do Mr McCulloch any real harm and are very sorry for the unforeseen consequences of your actions. And, as I have said, Mr McCulloch was far from blameless himself.

[35] Looking at all these matters together I consider a reduction in the starting point of two months is warranted. That would take your end sentence to 22 months imprisonment.

Home detention?

[36] Now because I have concluded that the appropriate sentence is 22 months imprisonment that means that home detention is an option. Your current bail address, with your brother in law is deemed suitable although the pre-sentence report writer has expressed some reservations about it on a continuing basis. As I understand it, you have been bailed to that address for some months now, without any real incident.

[37] Mr Squire emphasised both the hierarchy of sentences contained in the Sentencing Act and the requirement that I impose upon you the least restrictive sentence that is consistent with the relevant sentencing purposes. Home detention comes immediately after imprisonment with good reason; it is a very real restriction

on a person’s liberty, it is far from an easy sentence to serve. There may be some who would even prefer to go to jail.

[38] Mr Squire also referred me to s 16 of the Act which stresses the desirability of keeping you in the community to the extent that it is possible and consistent with public safety. In this respect it is plainly important in my view – both to you and to the community – that you presently have a job which you are good at. For all these reasons I have formed the view that home detention is the least restrictive option here.

[39] Mr Hetaraka I hope you understand that the sentence I am going to impose on you today is intended to give you a chance to go on being a productive and useful member of society who has put the violence of his past behind him. I am expressing my faith in you and I hope you will not let me down. You need to co-operate with the Probation Service and comply with and complete your sentence. And you need to be very, very careful to stay away, or to walk away, from situations at home and in public that might lead you to respond with any kind of violence. Notwithstanding your good intentions on 1 July 2014 you need to keep right away from situations like that in the future.

[40] So, Mr Hetaraka, that is it. If you could stand now please. For the manslaughter of Clark McCulloch I sentence you to 11 months home detention, on the standard conditions. I think it is highly desirable that, if your probation officer approves, you be given approval to leave the address to go to work, but some appropriate safeguards will need to be built into that and you will need to comply with them. So 11 months home detention, Mr Hetaraka. Please stand down.

“Rebecca Ellis J”