R v Pomare [2016] NZHC 1346 (17 June 2016)

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R v Pomare [2016] NZHC 1346 (17 June 2016)

Last Updated: 21 June 2016

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2014-088-002781 [2016] NZHC 1346

THE QUEEN

v

ELIAS POMARE

_{SHAYDEN KENNA RUA PERKINSON}

Hearing:	17 June 2016
Appearances:	M Smith and J P Scott for the Crown L Postlewaight and T Donald for Mr Pomare C Cull and A Dooney for Mr Perkinson
Sentence:	17 June 2016

_{SENTENCING NOTES OF WYLIE J}

Solicitors:

Crown Solicitor, Whangarei

C Cull, Kaikohe

L Postlewaight, Whangarei

R v POMARE & ANOR [2016] NZHC 1346 [17 June 2016]

Introduction

[1] Mr Pomare and Mr Perkinson, you may remain seated until I ask you to stand.

[2] Mr Pomare, you have pleaded guilty to a charge of murdering Michael

Griffin at Whangarei on or about 5 October 2014.

[3] Mr Perkinson, you have pleaded guilty to the manslaughter of Mr Griffin.

[4] Mr Pomare, you entered your plea after I gave you a sentence indication on

13 April 2016. You accepted a summary of facts, which had been prepared by the Crown, and I gave you the sentence indication by reference to that summary of facts. You have not sought to resile from it and both your counsel, Ms Postlewaight, and Mr Smith, for the Crown, have asked me to sentence you by reference to it.

[5] Mr Perkinson, you did not request a sentence indication. Rather you entered your plea after Mr Pomare had pleaded guilty to Mr Griffin’s murder. You did not sign a copy of the summary of facts at the time. As a result, you have been able to negotiate a slightly different summary of facts with the Crown. Ms Cull requests, and Mr Smith accepts, that I must sentence you by reference to this negotiated summary of facts. Mr Smith has not sought a disputed facts hearing, and there is no point in me directing such a hearing. The only persons who can now say what happened on 4/5 October 2014 are you and Mr Pomare and I do not anticipate that either of you would assist.

[6] This puts me in the unusual position of having to sentence each of you, as co- offenders involved in the same offending, by reference to different summaries of facts. That is unfortunate. Nevertheless, I am required by law to do so.

Mr Pomare

[7] Mr Pomare, I will sentence you first.

The Charge - Murder

[8] You have pleaded guilty to murder. Everyone who commits murder is liable to imprisonment for life, unless, given the circumstances of the offence and the offender, a sentence of life imprisonment would be manifestly unjust. The minimum term of imprisonment ordered may not be less than 10 years, and must be the minimum term of imprisonment that the Court considers necessary to satisfy all or any of the following purposes:

(a) to hold you accountable for the harm done to the victim and to the community by your offending;

(b) to denounce the conduct in which you were involved;

(c) to deter you or others from committing the same or a similar offence;

and

(d) to protect the community from you.

[9] Although the Court can in certain circumstances order that an offender serve his or her sentence without parole, it cannot make such an order unless the offender was 18 years or over at the time the offender committed the murder.

[10] You were just 17 years of age at the time of the offending. Given your age, a sentence without parole is not open to me. I do not in any event consider that it would be appropriate to order that you serve a sentence of life imprisonment without parole.

[11] Significantly, s 104 of the Sentencing Act 2002 provides that I must make an order imposing a minimum period of imprisonment of at least 17 years in various defined circumstances, unless I am satisfied that it would be manifestly unjust to do so. Some of those circumstances apply to your offending, namely:

(a) the murder involved the unlawful entry into, or unlawful presence in, a dwelling place;

(b) the murder was committed with a high level of brutality, cruelty, depravity, or callousness; and

(c) the deceased Mr Griffin was particularly vulnerable because of his age and health.

I will say more about this shortly.

The Summary of Facts (Mr Pomare)

[12] The victim, Mr Griffin, was a 56 year old male, and the father of two adult sons. He lived alone at a residential address in Whangarei. He was restricted in his movements. He had a paralysed left arm and he could not bend his left leg.

[13] You did not directly know Mr Griffin.

[14] On 4 October 2014, Mr Griffin was alone at his home address. He was last seen alive at approximately 2.20pm that afternoon. He was working on the exterior of his property between the garage/sleep-out and the house.

[15] At some stage, you and Mr Perkinson arrived at Mr Griffin’s address. You

went onto his property.

[16] For some reason, which is not set out in your summary of facts, you struck Mr Griffin a number of times to his head with a weapon. The blows fractured Mr Griffin’s skull and left an indent in his head. The injuries were not survivable.

[17] You and Mr Perkinson then used orange spray paint to paint slogans on the exterior and interior walls of Mr Griffin’s house. You ransacked and damaged property at the house, leaving the inside of the house in a dishevelled state. You tried to take a TV and Mr Griffin’s car.

[18] You and Mr Perkinson left the house a short time thereafter. You took two pushbikes and a laptop computer – all belonging to Mr Griffin. You travelled along the road in a northerly direction, before discarding the bikes.

[19] At about 1.54am on 5 October 2014 a blank text message was sent from Mr

Griffin’s cellphone to a friend’s phone. This was Mr Griffin’s last communication.

[20] On 5 October 2014 at 7.48am, the police communications centre was notified by the ambulance communications centre that an unresponsive male (Mr Griffin) had been found at the rear of his property. Witnesses described Mr Griffin as having serious head injuries and as lying groaning on the ground. Mr Griffin was taken to Whangarei base hospital. He died at approximately 8.37pm that evening.

[21] A post mortem examination was conducted on Mr Griffin’s body. He had three main skull fractures. The trauma to the right side of his skull had caused his brain to swell and that swelling had blocked his blood vessels. As a result, Mr Griffin had died. Swelling was also observed down into his spinal column. The swelling was a direct result of blunt force trauma applied to Mr Griffin’s head. There was also bruising around the side and front of his head, which could have been caused by punching or hitting, or as a result of an assault with a weapon. There were no defensive or other wounds to Mr Griffin’s arms or body.

[22] The police endeavoured to speak to you on 7 October 2014. When you saw the police coming to your house, you ran out of the back door. The police only located you some time later. You offered no explanation when these matters were put to you.

Provision of Advice to Courts Report

[23] I turn to the Provision of Advice to Courts report which I have received. You were born and raised in Whangarei, but you were unable to elaborate in any great detail on your childhood. You confirmed to the officer that you were exposed to violence in the family home, and that you were uplifted at a young age by CYF. You attribute your previous offending as a youth to boredom. You reported that you regularly use drugs – cannabis and methamphetamine. You said that at the time of the offending you were coming down off methamphetamine and attempting to secure money to purchase illicit drugs.

[24] You did not identify yourself as a violent or angry person. You did acknowledge that, at the time of the offending, you felt threatened by the victim and reacted violently. You acknowledged that your lack of control had an impact on your decision making. Custodial records confirm that whilst you were on remand, you were subject to non association orders against other prisoners, because you fought with them and used stand over tactics against them. You were assessed as posing a high risk of harm and of reoffending.

[25] The probation officer noted that you have expressed remorse, but the officer was of the view that you have not yet demonstrated full comprehension of the gravity of your offending and the wider impact it has had on the victim’s family and the community as a whole.

Criminal Record

[26] For a person of your age, you have an unenviable record. You have 24 notations in the Youth Court. You started offending in October 2012 when you were only 15 years old. You have been a regular offender ever since. Most of your offending has been dishonesty related. You have only one notation for assault which was committed in October 2013. You were sentenced to six months’ supervision by the Youth Court in relation to that offence, as well as in relation to two other offences, behaving in a threatening manner and resisting police.

[27] The present offending was committed while you were subject to sentence. You had appeared in the Youth Court only three days earlier for sentence on various charges for offending which occurred between October 2012 and April 2014. A review had been triggered as a result of an offence of shoplifting which you committed on 8 April 2014.

Victim Impact Statements

[28] I have received four victim impact statements – one is from Mr Griffin’s brother, and one from his sister. There are two further statements, one from each of his sons.

[29] Mr Griffin’s brother is distressed by the fact that Mr Griffin was defenceless against your attack because of his disability. He says that Mr Griffin would have been helpless. He is also concerned that Mr Griffin was left to die by you, and that he was not found for some hours after your attack. He is distressed that Mr Griffin was left lying on the ground suffering.

[30] Mr Griffin’s sister was close to him. She detailed the effect that his death has had on her life. She considers that he did not stand a chance against you, and that, with his disabilities, he would not have been able to defend himself. She also feels degraded because she had to clean up the graffiti which was left in Mr Griffin’s house. She also says that your behaviour in Court to date indicates that you have no remorse.

[31] Mr Griffin’s two sons each detail the effect their father’s death has had on

them.

[32] One son is distraught at his father’s death, and says that his life has, to a significant extent, changed as a result of the emotional turmoil he has been through. Things that he used to process easily, he now finds difficult. His father’s death has taken a toll on his own family. He explains that the circumstances of his father’s passing are just too painful and emotional for him to process at this stage.

[33] The other son also notes that his father’s death has caused a lot of grief to his family. He comments that his father did not deserve to die a violent death, and that he felt helpless when he saw his father in hospital, because he could not do anything to help him. He also finds it hard to find the words to explain the impact that his father’s death has had on him emotionally.

Submissions

[34] Mr Smith for the Crown submitted that a mandatory sentence of life imprisonment is not manifestly unjust, and that it ought to be imposed. He argued that your offending falls within s 104 of the Sentencing Act, but accepted that it would be manifestly unjust to impose a minimum period of imprisonment of 17 years, due to your youth and due to your guilty plea. He suggested that a starting

point minimum period of imprisonment should be in the range of 15 to 16 years, and that thereafter mitigating factors should be taken into account. He accepted that your youth and guilty plea are mitigating factors, even though the guilty plea was entered very late in the day. He suggested that the discount for mitigating factors could be in the range of two to four years’ imprisonment.

[35] Ms Postlewaight on your behalf says that you were walking to a nearby address to exchange a tablet for alcohol and/or drugs, and that on the spur of the moment the decision was made to call in at Mr Griffin’s home. She told me that you did not know Mr Griffin, but rather knew of him. You told Ms Postlewaight that you hit the victim twice because you believed he was going to hit you with a shovel. You also told Ms Postlewaight that you did not know that the victim had a weakened left arm and that he could not bend his left leg. She emphasised that you did not take a weapon with you to the scene.

[36] Ms Postlewaight put it to me that you did not unlawfully enter Mr Griffin’s property, and that you had a common law implied licence to go onto the property to speak with Mr Griffin. She accepted however that that licence was revoked by the assault. She emphasised that there is no evidence linking you to the taking of the laptop, and that there is nothing to suggest that you entered the address with the intention to rob. She accepted that the blows to the head were sufficient to kill, and that they exhibited a degree of brutality, but queried whether or not they were at the high level of brutality envisaged by s 104. She also accepted that the fact that Mr Griffin was left lying on the ground after the assault showed a degree of callousness, but put it to me that it was reflective of your immaturity. She emphasised that on your version of events, the assault was over in a matter of moments, and that it was an impulsive act. She also argued that the offending was not premeditated.

[37] Ms Postlewaight, in supplementary submissions, emphasised your youth and referred to reports which have been prepared which diagnose you as suffering from foetal alcohol syndrome disorder. She submitted that this condition reduced your culpability. She also submitted that, in as much as your neurological condition allows, you are remorseful for what happened. She put it to me that a lengthy term of imprisonment would be unduly hard for you.

[38] Ms Postlewaight submitted that a starting point for any minimum period of imprisonment should be around 13 years, but that given your age and mental impairment, a minimum non-parole period of around 10 years is available to the Court.

Analysis

[39] As I have explained to you, I am required to sentence you to imprisonment for life, unless, given the circumstances of the offence and your circumstances, a sentence of life imprisonment would be manifestly unjust.

[40] In my judgment there is nothing in your offending which would make a sentence of life imprisonment manifestly unjust. This was accepted by Ms Postlewaight on your behalf. This was a brutal murder. A man in late middle age, suffering from significant physical disabilities, was beaten to death with a weapon on his own property. There were repeated and obviously severe blows to his head. The blows were strong enough to fracture his skull in three places. One mitigating personal circumstance is your age – you were a few days short of your 17th birthday at the time of the offending. Youth is a factor that can be taken into account, but it is not of itself sufficient to result in a finding of manifest injustice, particularly where the offender has the necessary murderous intent or requisite knowledge of

consequences to be guilty of murder.¹ You have pleaded guilty to murder. Your age

cannot weigh against the savagery of your attack on Mr Griffin. Another mitigating factor is your psychological condition. I turn to this shortly. While it reduces your culpability, it does not excuse you. The appropriate sentence is one of life imprisonment.

[41] I now turn to consider the minimum period of imprisonment. The first issue I have to consider is whether there were circumstances which support a minimum period of imprisonment of 17 years.

_{[42] There were three such features:}

¹ R v Rapira [2003] NZCA 217; [2003] 3 NZLR 794 (CA) at [123].

(a) First, the murder involved your unlawful entry into, and unlawful presence in, Mr Griffin’s property. You may have initially gone onto Mr Griffin’s property with his permission, but any permission you had was revoked once the assault started. There was in effect a home invasion.

(b) Secondly, the murder was committed with a high degree of brutality and callousness. There was not one act of violence; rather you meted out a sustained beating to Mr Griffin. You were using a weapon. You struck Mr Griffin repeatedly with it. The blows were to the head. You used sufficient force to fracture Mr Griffin’s skull in three places. Your blows left indentations on his head. You were callous in the extreme. Mr Griffin was still alive after the attack. You left him for dead. Rather than summon assistance, you ransacked his house, spray painted graffiti on it, and stole his bikes and laptop. Mr Griffin was not found until sometime later and he did not die until the following evening.

(c) Thirdly, Mr Griffin was vulnerable because of his age and his physical disabilities. He was 56 years old. He was restricted in his movements. As I have noted he had a paralysed left arm and he could not bend his left leg. There were no injuries on his body or his arms which suggested that he had tried to defend himself, and indeed his brother and sister both say that he would not have been able to do so.

[43] On the summary of facts applicable to your offending, I accept that the offending was not premeditated. There is nothing to suggest that you took a weapon to the address. I also accept that there is nothing to suggest that you went to Mr Griffin’s address with the intention to rob.

[44] Given the features I have identified, s 104 of the Sentencing Act directs me to impose a minimum period of imprisonment of 17 years, unless it would be manifestly unjust to do so.

[45] The question of whether or not a minimum period of imprisonment of 17 years would be manifestly unjust must be determined having regard to all the purposes and principles of sentencing that are set out in ss 7 to 9 of the Sentencing Act. While mitigating factors directly bearing on the offence will often carry greater weight than those relating to the offender, each is capable of influencing the outcome

of the inquiry.² A minimum period of 17 years’ imprisonment, where otherwise

appropriate, is not to be departed from lightly. It will however be manifestly unjust where the sentencing Judge decides:³

... as a matter of overall impression that the case falls outside the scope of the legislative policy that murders with specified features are sufficiently serious to justify at least that term. That conclusion can be reached only if the circumstances of the offence and the offender are such that the case does not fall within the band of culpability of a qualifying murder. In that sense they will be exceptional but such cases need not be rare. As well, the conclusion may be reached only on the basis of clearly demonstrable factors that withstand objective scrutiny. Judges must guard against allowing discounts based on favourable subjective views of the case. The sentencing discretion of Judges is limited in that respect.

[46] Sections 7 to 9 of the Sentencing Act require me to hold you accountable for the harm you have done, not only to Mr Griffin and his family, but also to the community by your offending. Here you have inflicted considerable harm. You have killed a man. The community is rightly affronted by the circumstances of your attack on Mr Griffin. I must seek to promote in you a sense of responsibility for that offending, and denounce the appalling conduct in which you were involved. I must also seek to deter others from committing the same or a similar offence and protect the community from you. I have to bear in mind your rehabilitation and your reintegration into society.

[47] I am required to take into account the gravity of your offending – here a brutal murder. Even judged by reference to other murders, it was serious offending. I must take into account the general desirability of consistency with appropriate sentences imposed in other cases, and also take into account any particular circumstances personal to you that mean that a sentence that would otherwise be

_{appropriate would be disproportionately severe for you. I am required to take into}

² _{R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA) at [71].}

³ At [67].

account the fact that your offending involved violence and the use of a weapon. It involved unlawful entry onto a property. It resulted in the death of a man, and involved particular cruelty.

[48] I have considered the various cases referred to me by counsel.⁴ I do not consider some of the cases particularly helpful. Some did not involve s 104 offending and in others, the offending was even more or less brutal or there were more or less mitigating features. To my mind your actions were most similar to the murders considered by the Courts in Te Wini v R⁵ and Churchward v R.⁶

_{[49] I have also considered other decided cases not referred to me by counsel.}⁷

⁴ Te Wini v R [2013] NZCA 201 – murder, offender 14 years old, starting MPI of imprisonment of

12-13 years; discount for youth and guilty plea. No previous convictions, remorse, rehabilitative prospects, psychiatric problems, sexual abuse during upbringing, history of drug abuse. MPI of

10 years’ imprisonment; Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 – murder (same murder as Te Wini), offender had been in abusive relationships, was a drug abuser, had anorexia and was depressed with symptoms of PTSD. She had a borderline personality disorder. Prison would allow her to get back on track if proper controls were instituted. A 17 year MPI would be as long as she had lived, and would be crushing for her. MPI of 13 years adopted; R v Rewha Te-Wara HC Hamilton CRI-2010-019-005681, 30 September 2011 – three offenders, victim 74 years old – one offender 14 years old. Another 15 and a third 17. 14 year old principal offender. Victim killed after a blow to the head. Other blows also delivered. 17 year MPI considered manifestly unjust because of youth and a relatively late guilty plea. MPI adopted of 11 years for 14 year old; R v Churchis [2014] NZHC 2257 – defendant 17 year old homeless youth. Attacked the victim with physical impairment. Martial arts kick to the head, repeated punches and stomping. Offender returned six hours later to find the victim had barely moved. Offender did not call an ambulance. Defendant on bail and had previous convictions. Discount for youth, lack of pre-meditation, personal circumstances and the factors relevant to the offending included possible excessive self defence. A 17 year MPI unjust. MPI of 11 and a half years adopted; R v Derrick-Hardie [2012] NZHC 2833 – murder, very late guilty plea. Defendant had been carrying knives in months leading up to murder. Had made comments on Facebook about killing and stabbing someone. Offending occurred at a party. Offender stabbed victim four times in the head, chest and abdomen. Defendant was 17 years old. After allowances for youth and guilty plea, 11 year MPI imposed; R v Te Tomo [2015] NZHC 2671, murder, s 104 not engaged. Offender 17 years old. MPI of 12 years, with 1.5 years discount for youth; R v Smith HC Timaru CRI-2010-045-000249, 17 June 2011. Murder, s 104 not engaged. Offender 16 years old. MPI of 10 years; R v Langley [2014] NZHC 3230. Murder, s 104 not engaged. 10 years MPI. Offender 19 years of age.

⁵ _{Te Wini v R, above n 4.}

⁶ _{Churchward v R, above n 4.}

⁷ R v Trevithick HC Auckland CRI-2007-244-000009, 19 June 2007, murder, offender 15 years old. Victim 77 years old. A home invasion. Use of knife – victim stabbed 25 times. Early guilty plea for remorse, limited emotional maturity. MPI of 17 years unjust. MPI of 14 years imposed; R v Kelekolio [2014] NZHC 1791 – offender 16 years old. Victim stabbed with a knife

– 14 stab wounds. Unlawful sexual connection. Guilty pleas, difficult upbringing, significant

learning difficulties and depressive state after arrest. MPI of 14 years and six months’ imposed; R v Job HC Whangarei CRI-2009-029-001324, 7 October 2010. Victim 70 years old. Home invation with intention of committing burglary. Offender 17 years old. Early guilty plea. Offender had been physically and mentally abused during his childhood and had a psychiatric illness. There was remorse. MPI of 15 years imposed.

[50] I have considered your personal circumstances.

[51] I do not consider that your history of offending which has been dealt with by the Youth Court is relevant. It does not require an uplift.

[52] One mitigating factor which has been put to me by Ms Postlewaight is your age.

[53] The age of an offender can be a mitigating factor. It falls for consideration under the broadly worded test of manifestly unjust contained in s 104.⁸ There has been comprehensive research which suggests that young people have age related neurological differences from adults, and that they can be more susceptible to negative influences and outside pressures, and that they can be more impulsive than adults.⁹ The effect of a long term of imprisonment on young people can be crushing.¹⁰ Young people can also have a greater capacity for rehabilitation, particularly where their character is not as well formed as that of an adult.¹¹

[54] Your young age and your relative immaturity do not excuse your actions, but I accept that they do mean that your culpability is lower than it would have been if you had been a mature adult. I also accept that, if you are motivated to engage, a period of imprisonment with appropriate treatment and rehabilitation may allow you to get your life back on track. A 17 year minimum period of imprisonment would be almost as long as you have now lived, and I acknowledge that there is a risk that a sentence of imprisonment of that minimum length could have a crushing effect on you. While you have a significant number of Youth Court notations, it is noteworthy that you have only one notation involving violence. It seems to me that there must be a prospect that you will be able to rehabilitate, and put your criminal history behind you if you receive appropriate assistance while you are in prison.

[55] I have considered a recent psychological report which I directed be obtained. That report is from a Dr Sakdalan and a Dr Easden. Both are registered clinical

⁸ _{Churchward v R, above n 4, at [76].}

⁹ _{At [77] and [79]-[84].}

¹⁰ _{At [85]-[87].}

¹¹ At [88]-[92].

psychologists. They interviewed you at length, and spoke to your mother. It is clear that your mother drank alcohol in a binge pattern throughout her pregnancy. She also smoked cigarettes and cannabis during her pregnancy. As a result you have been diagnosed as suffering from foetal alcohol spectrum disorder. It seems that your disorder was misdiagnosed until relatively recently. You were exposed to drugs and alcohol from an early age in the family home. You have used cannabis and more recently methamphetamine from about the age of 14 years onwards. At the time of the offending, you reported that you were using methamphetamine on a daily basis. You said that your memory of the offending is only partial, due to the effects of methamphetamine and alcohol, and that you cannot remember much of what took place. The psychologists consider that you manifest features of impulsivity, poor problem solving abilities and an inability to learn from prior mistakes. Nevertheless, they were of the opinion that you offer a low to moderate risk of reoffending, and note that you are eager to attend groups to further address issues relating to substance abuse. While there was nothing in the report to directly link your offending to your psychological condition, the doctors expressed the view that you manifest symptoms of foetal alcohol syndrome disorder, and that this disorder increases your vulnerability to impulsive criminal behaviour, and increases your sensitivity to drugs and alcohol, and your propensity to misuse those substances. It is also noteworthy that there was nothing in the report suggesting that a lengthy term of imprisonment would be unduly harsh for you.

[56] Nevertheless I accept that the various factors identified in the report, and in earlier reports obtained by your counsel from Dr McGinn (which I have read), do suggest that your culpability is reduced. They do not excuse your actions, but suggest that your ability to control your impulsivity is compromised.

[57] I do not accept that you have shown any real remorse. Although Drs Sakdalan and Easden thought that you were remorseful, their observations in that regard seem to me, with respect, to be relatively superficial. There is the letter that you have sent to me today and which Ms Postlewaight has read in Court. There is little else to suggest that you have expressed any great remorse. It is concerning that each time you have spoken to somebody about your offending, you have offered a different explanation for it. Even now it is not clear why the events of 4/5 October

2014 occurred. I prefer the opinion of the probation officer I have already referred to. I do not consider that even now you really appreciate the consequences of your actions or that you are genuinely remorseful.

[58] Given your particular circumstances it would, in my judgment, be manifestly unjust for you to serve a minimum period of imprisonment of 17 years. In my view, the appropriate minimum period of imprisonment, taking into account your age and your psychological condition, is 13 years. This is one year less than I considered appropriate when I gave you the sentence indication. I am making an additional one year deduction because I have taken into account the recent report into your mental health. I accept that you have limited ability to control your impulses and that this reduces your culpability.

[59] I am also prepared to allow you a discount for your guilty plea. The plea was made at the very last moment, and in the face of a strong Crown case. Nevertheless, I accept Ms Postlewaight’s submission that there were factors, in particular the late receipt of relevant expert reports, which accounted, in part, for the delay. I also accept that, late though it is, a guilty plea is an important acknowledgement of responsibility as well as a benefit to the community. I am prepared to allow you a further discount of one year to acknowledge that plea.

Sentence

[60] Mr Pomare, will you please stand.

[61] Mr Pomare, in respect of the offence of murdering Michael Griffin on or about 5 October 2014, I sentence you to life imprisonment. I direct that you are to serve a minimum period of imprisonment of 12 years.

[62] You have expressed a willingness to attend appropriate courses while in custody, to address your substance abuse and to help you to form healthy relationships. I trust that you will follow through in this regard, and that ultimately you will return to the community, and will be able to make a contribution to it.

[63] You may stand down.

Mr Perkinson

[64] Mr Perkinson, I now turn to you. As I noted, you have pleaded guilty to the manslaughter of Michael Griffin. Manslaughter carries a maximum sentence of life imprisonment.

Summary of facts – Perkinson

[65] The summary of facts which you have accepted is similar to the summary of facts for Mr Pomare, but there are some important differences. It records that you decided to go to Mr Griffin’s house on the night of 4 October 2014, because Mr Pomare wanted to see Mr Griffin about something. What that something was is not explained. You accept that you knew that some violence was likely to occur at the address as a result of Mr Pomare meeting Mr Griffin. Once you were at the address, there was an argument between Mr Pomare and Mr Griffin but you did not hear what the argument was about. Mr Pomare struck Mr Griffin a number of times to the head area with a weapon. You were standing approximately three metres away. Once Mr Pomare ceased the attack, he went inside. You joined him inside the house, where the two of you used orange spray paint and painted the walls of the house on the exterior and interior. You ransacked and damaged property at the house, leaving the inside of the house in a dishevelled state. You tried to take Mr Griffin’s television and car, and, when you did leave, you took two pushbikes belonging to Mr Griffin and a laptop computer. You left Mr Griffin lying on the ground outside.

[66] When you were spoken to by the police, you initially said that you had been

at Mr Pomare’s address overnight on 4 October 2015.

Provision of Advice to Courts Report

[67] I have received a Provision of Advice to Courts report. You are 18 years old. Your mother died recently. Your father resides in Auckland but your relationship with him has become closer recently. You have been in employment. You are reported as regretting your offending, the consequences for Mr Griffin, and the effects on his family. A sentence of imprisonment was recommended.

Victim Impact Statements

[68] I will not repeat what I have said about the victim impact statements. What I

have said is applicable to you as well.

Submissions

[69] Mr Smith accepted that you should be sentenced on the basis that you played no physical role in the assault which resulted in Mr Griffin’s death. He also accepted that there is no suggestion that you had a weapon, or that a weapon was taken to the scene. He referred to the relevant provisions contained in the Sentencing Act, and to case law which he argued was applicable. He put it to me that you accompanied Mr Pomare to Mr Griffin’s address, knowing that violence was likely to be inflicted by Mr Pomare on Mr Griffin. He submitted that I should adopt an initial starting point of eight to nine years’ imprisonment, but that your youth and guilty plea were mitigating factors. He also advised that the Crown is not seeking a minimum period of imprisonment under s 86 of the Sentencing Act 2002.

[70] Ms Cull, on your behalf, submitted that you stand to be sentenced on the basis of your limited culpability – namely that you played no physical role in the assault. Rather, she said you were present and you did nothing to assist Mr Griffin after the attack. She emphasised that at the time of the offending you were 17 years and five months of age, and that, while you have Youth Court notations, you have no previous convictions. She noted that your Youth Court notations did not involve violence, and that all matters in the Youth Court were dealt with at one disposition hearing in June 2013, for offending which occurred in 2012. She noted that there was no reoffending since the imposition of orders by the Youth Court in June 2013. Ms Cull referred me to a number of decisions, and suggested that a starting point in the range of four to six years would be appropriate. She argued that you are entitled to a discount for your guilty plea in the vicinity of 15 to 20 per cent, and that you are also entitled to a discount for youth.

Analysis

[71] There is no tariff case for manslaughter. The Court of Appeal has noted that in cases involving serious violence, guidance can be obtained from other authorities which deal with such offending.¹²

[72] Your offending did not involve serious violence – at least by you. There is nothing to suggest that you joined in the attack on Mr Griffin. However you chose to go to Mr Griffin’s address, knowing that Mr Pomare was likely to assault Mr Griffin. There was a degree of premeditation by you. Your presence was relevant. Mr Griffin was elderly – 56 years’ old – and he was partially disabled. It must have been distressing to him to be confronted by two young and seemingly fit youths. You went onto his property, and certainly once the assault by Mr Pomare started any licence you may have had to enter the property was revoked. Your behaviour, while not violent, was callous. You left Mr Griffin lying on the ground after he had been savagely beaten by Mr Pomare. In effect, you, and Mr Pomare, left him to die. You followed up on Mr Pomare’s attack by spray painting Mr Griffin’s house, ransacking it, and stealing items of his property.

[73] I accept that there is a significant difference between your actions and those of Mr Pomare. The difference is reflected in the charge to which you have pleaded

_{guilty. It also needs to be reflected in the sentence which should be imposed on you.}

¹² R v Tai [2010] NZCA 598 at [11] referring to R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

[74] I have considered various broadly comparable cases.¹³

[75] Considering all of the applicable circumstances in the round, in my judgment the appropriate starting point in your case is one of four years’ imprisonment.

[76] I now turn to consider factors personal to you.

[77] I note that you have a number of notations for youth offending. None of that offending involved violence. I do not consider that an uplift is required. There is however no scope for a good character discount.

[78] I accept that you are entitled to a small discount for youth. As I have noted, you were 17 years and five months of age at the time of the offending. As I noted

¹³ R v McNaughton [2012] NZHC 815. There was a pre-arranged fight between two large groups. Both groups participated fully and each group brought weapons to the fight. Mr Perry was the driver for one group. He brought a jemmy bar in the vehicle to the fight, but only for self defence. H e had not been involved in earlier incidents between the two groups. He took no part in the fighting, and for the most part stayed in the car. One of the men in the other group was shot at point blank range by one of Mr Perry’s associates, and he died. A three year starting point was adopted for Mr Perry; R v Clarke HC Rotorua CRI-2009-270-73, 29 May 2009 – four offenders. Three offenders attacked the victim and left him to die on the footpath. One of the offenders, who had interacted with the victim, was not involved in the assault, although she did encourage it. A four year starting point adopted; R v Carruthers [2012] NZHC 1662. Appellant and his father met the victim at a beach. They attacked the victim. Appellant was involved in kicking and punching, but then withdrew. His father continued the assault with a steel bar, and the victim died. Appellant did not know that his father intended to murder the victim. A starting point of four years was adopted; R v Innes [2016] NZHC 1195. Appellant and co-offender went to victim’s house to obtain drugs. Co-offender was carrying a knife which appellant knew he had. Co-offender inflicted fatal wound to victim. Appellant had no involvement in the struggle. He did not return to the property, and he did not witness the events. He did not meet up again with the co-offender. A starting point of four and a half years’ imprisonment was adopted; R v Matautia HC Auckland CRI-2006-092-013486, 29 November 2007. Aggravated robbery. Victim tried to resist and co-offender struck him. Both offenders then rifled through victim’s pockets, before leaving. No discussion about a possible robbery. A starting point of five years adopted; R v Ahsin [2015] NZHC 1884. Appellant and two associates members of gang. Confrontation with rival gang members. Later in the day they saw victim who was wearing gang colours, although he was not in fact a gang member. Appellant was driver of motor vehicle and executed a u-turn. Two other offenders got out of the car and launched an unprovoked attack on victim. Ms Ahsin made some attempt to stop the attack before it escalated. A starting point of five years’ imprisonment adopted; R v Gilbertson HC Wanganui T 963/98, 30 October 1998. Victim had been aggressive to two offenders. He was hit in the head and kicked. The offender who attacked the victim intended to do so. The appellant also intended the assault, but not the fatal blows. A starting point of five years adopted; R v Rewha-Te Wara HC Hamilton CRI-2010-019-5681, 30 September

2011 – three offenders killed 74 year old victim and stole his car. Victim punched to the ground and kicked. One offender sentenced for murder. Other two sentenced on the basis they were complicit because they participated in the aggravated robbery, knowing that violence was to be inflicted. They were not involved in the actual assault, and they did not anticipate how violent it would be. No efforts made to assist. An eight year starting point adopted.

when sentencing Mr Pomare, youths can have age related neurological differences from adults, and the effect of imprisonment on them can be crushing.

[79] In your case however there is limited scope for a youth discount. You did not act impulsively. On your version of events contained in the summary of facts you have accepted, you were swept along by the events that occurred, albeit with knowledge that violence might well ensue. Your actions in leaving Mr Griffin for dead and in ransacking his house were not however spur of the moment reactions. Nor are you facing a lengthy term of imprisonment. Youth plays a lesser role in your case than it did in Mr Pomare’s case. I am nevertheless prepared to allow you a discount of six months to recognise your youth.

[80] You have expressed some remorse – albeit limited. I am not prepared to allow you a discount for this. I am not persuaded that the remorse is genuine. The difficulties over the summary of facts and its sparse narrative, suggest to me that there is no genuine remorse by you.

[81] Finally, I allow you a discount of four months, to recognise your guilty plea. I note that your defence up until the week of trial was that you were not present at the time of the attack. You were charged with murder but I do not consider the fact that the Crown accepted a guilty plea to manslaughter is a concession limiting the need for a discount. Your proposed defence indicates that you were not willing to plead guilty to manslaughter at an earlier time. Your plea came very late in the week in which the trial was due to commence. I accept that the guilty plea does however represent an acknowledgement of the offending, and that it saved the need for a trial.

Sentence

[82] Mr Perkinson, will you please stand.

[83] In respect of the manslaughter of Michael Griffin, I sentence you to a term of imprisonment of three years and two months.

[84] I do not impose a minimum term of imprisonment. The Crown has not asked me to do so, and in any event I do not consider that any of the factors identified in s

86 of the Sentencing Act are engaged.

_{[85] You may stand down.}

Wylie J