R v Scott [2016] NZHC 1918 (18 August 2016)

Last Updated: 17 October 2016

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2016-019-1257 [2016] NZHC 1918

THE QUEEN

v

_{BRENDON SCOTT}

Hearing:	18 August 2016
Appearances:	R G Douch for the Crown K L Tustin for the Defendant
Sentence:	18 August 2016

_{SENTENCING NOTES OF MUIR J}

Counsel/Solicitors:

R G Douch, Almao Douch, Hamilton

K L Tustin, Barrister, Hamilton

R v SCOTT [2016] NZHC 1918 [18 August 2016]

[1] Mr Scott, you appear today to be sentenced on one charge of manslaughter to which you pleaded guilty at the earliest practical opportunity.

Factual background

[2] You and the victim, Ms Raewyn Green, had been in a relationship for approximately one year. You are 52 years old and Ms Green was 50. From time to time Ms Green would live with you in your one bedroom accommodation, although co-habitation was sporadic because the relationship was volatile. The agreed summary of facts records numerous instances of domestic violence perpetrated on the victim. A frequent theme of your arguments was your obsession with Ms Green’s monogamy or otherwise.

[3] On the day of Ms Green’s death you both went to a liquor store early in the morning and purchased two dozen beers. In that act was probably the genesis of everything that later happened that day. You returned to your house and started drinking. You invited your neighbour over, and she joined you at your address. By the early afternoon you had finished that quantity of beer, and made a second trip to the liquor store. All three of you then went to the neighbour’s house to continue drinking.

[4] You confirmed that you had been using methamphetamine that afternoon or

early evening, smoking “one point”.

[5] Over the course of the afternoon you became, not unexpectedly given the volume of alcohol that had been consumed, aggressive and argumentative, and accused Ms Green of being unfaithful with another local man. After a number of heated arguments at the neighbour’s property you and Ms Green returned to your own address.

[6] Sometime later the neighbour came over to check on Ms Green, and was invited to stay and continue drinking which she did. However, you continued verbally abusing Ms Green and making allegations about her alleged unfaithfulness. At one point you followed Ms Green into the bedroom and were there for a short period before returning to the lounge.

[7] The neighbour went into the bedroom herself and noticed that Ms Green was crying and that one side of her face was swollen. She left at nightfall, at which point she says you were still directing a torrent of verbal abuse at Ms Green.

[8] Sometime later, you again hit Ms Green on what, from the medical evidence, appears to have been multiple occasions, causing her in consequence of either one or the cumulative blows to become unresponsive. You tried to revive her but were unable to do so, and dragged her outside. Another neighbour saw this, and called the ambulance for assistance. Meanwhile, you went over to the house of the neighbour with whom you had been drinking and told her that Ms Green had collapsed and that she needed to come and assist.

[9] When the ambulance arrived you told the attending officers that you had had an argument inside the house and that Ms Green had collapsed.

[10] Ms Green died in hospital as a result of head injuries. An autopsy revealed that she had multiple serious injuries to her head including large areas of bruising on the right temple, the left temple and the left top of the head. There was also facial bruising in a number of areas including her lower cheek, her lower left jaw, her lower lip and her neck. As a result of the head trauma there was bleeding over the surface of the brain which resulted in swelling, ultimately causing death. There were also scrapes and bruises on her back consistent with being dragged outside.

[11] When you were spoken to you said you had not been arguing and that the victim had collapsed in another room and that you had tried to revive her by slapping her but were unable to do so. This explanation is self-evidently inconsistent with the autopsy reports, which reveal injuries that could not have been the result of a single fall due to the number of discrete head injuries as well as their presence over virtually all of her skull and face. I am satisfied that there were a number of blows struck with a closed fist over the course of the evening culminating in a violent final attack against Ms Green which led to her collapse.

Victim impact statements

[12] These have been filed by the victim’s siblings including Roy Green, Aroha Martin and Te Whini Morgan and by the victim’s daughter Kylie Green. Mr Green and Ms Kylie Green have, at considerable inconvenience to themselves, travelled from Christchurch and Australia respectively to read their statements which I found very compelling. All these statements reflect the family’s grief at the loss of their sister and mother. The brutal way she died is something which they say they will all not be able to forget.

[13] The statements also paint a picture of a woman who, in the words of Roy Green, had much to live for. She was positive and upbeat and a mother to Kylie, who has since given birth to Ms Green’s first grandchild who will now never know her grandmother. It is said that Ms Green was also a kind woman who gave a lot to others and always saw the best in people. Aroha feels frustrated that her sister was taken advantage of by a person like you, due to her naive and trusting personality. Te Whini remembers Ms Green’s smile and states that nothing will ever be able to bring back her younger sister. Kylie was distraught at news of her mother’s death and particularly aggrieved that because of medical complications surrounding her own pregnancy she was unable to travel to New Zealand to attend the funeral.

Personal circumstances

[14] I will now say something about you before moving to the formal part of my sentencing remarks. You are a 52 year old male. You have told the writer of the pre- sentence report that you mostly keep to yourself, although you do have relationships with your elderly parents, your daughter and her son. You confirmed you had a tumultuous relationship with Ms Green, fuelled by alcohol.

[15] You have apparently always been unemployed, having left school at around

14 years of age. You have no skills. You have no structure to your life, and report that, other than gardening and going to the library, you mostly keep to yourself. You live in a one bedroom flat provided by Housing New Zealand.

[16] Your life has been marked by drug abuse. You are currently on the methadone programme, receiving that three times a week. You have Hepatitis C. You have used cannabis, home-bake heroin, methamphetamine and obviously alcohol. Indeed it appears you continue to suffer alcohol addiction issues and use methamphetamine when available.

[17] You say that you are still coming to terms with the death of Ms Green, and you feel guilty and remorseful. I have read the correspondence dated 1 July 2016 from you.

Principles and purposes of sentencing

[18] Sections 7 and 8 of the Sentencing Act 2002 require me to have regard to a number of purposes and principles of sentencing. In this case, I consider that the primary purpose of sentencing is to hold you accountable for the death of Ms Green, and to denounce your conduct. Domestic violence, in all its forms, is a scourge on our communities and our society. As the television advertisements say, “it is not okay”.

[19] The continuous verbal and physical abuse directed towards Ms Green and your pre-occupation with her faithfulness are, unfortunately, characteristic of the underlying attitudes and behaviours that result in serious harm and death to hundreds of women in New Zealand annually. It is appropriate that this Court strongly denounce all such conduct.

[20] The most relevant principles of sentencing are the need to take into account the gravity of the offending, and your level of culpability. On the other hand, I must bear in mind the need to achieve consistency taking into account sentencing levels imposed in analogous cases and to impose the least restrictive outcome that is appropriate in the circumstances.

Methodology of sentencing

[21] When deciding on an appropriate sentence, I must first consider your offending in isolation removed from any features personal to you. That will lead to

what is called a starting point for your sentence. Secondly, I must make any necessary adjustments for features that are personal to you. Finally, I need to turn my mind to what, if any, is the appropriate discount to afford for your guilty plea and any other mitigating circumstances of a personal nature.

Setting the starting point

Crown Submissions

[22] The Crown submits that applying the Court of Appeal decision in R v Taueki

the following aggravating features are present:¹

(a) Extreme violence. The pathologist found that there were multiple blows to the head and face which caused bleeding over the surface of the brain;

(b) Serious injury. Indeed the most serious, in that death resulted; (c) Attacking Ms Green’s head; and

(d) The vulnerability of the victim in that Ms Green was only 41 kgs and

158 cm tall – diminutive by comparison with you.

[23] On that basis the Crown contends for a starting point of between eight and

nine years’ imprisonment, being at the upper end of Band 2 in Taueki.

[24] The Crown also refers to a number of what it says are broadly comparable domestic manslaughter cases where starting points of between eight and 10 years have been identified and which I will discuss in greater detail later in these

_{sentencing remarks.}

¹ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372.

Defence submissions

[25] Your counsel contends for a lower starting point, in the region of five to six

years’ imprisonment. In doing so she submits that:

(a) This was effectively a one off violent outburst, following the consumption of methamphetamine and alcohol;

(b) There was only a moderate amount of force used in comparison to other cases, highlighted by the lack of broken bones and the limited number of blows;

(c) There is no known history of domestic violence against Ms Green; (d) Immediately following Ms Green’s collapse you sought assistance.

[26] She further submits that Taueki is not helpful in this case as it is not one involving serious violence and there was no foreseeable outcome of serious injury from your actions.²

Analysis

[27] There is no tariff or guideline case for manslaughter. This is because the circumstances of manslaughter offending vary greatly.³ Instead, the appropriate starting point is to be found by reference to similar cases.

[28] In cases where there is serious violence involved it is appropriate to consider the sentencing bands set out in Taueki for causing grievous bodily harm (GBH). However, care must be taken in applying them where intention to cause GBH is neither admitted nor proved.⁴ A counsel of perfection is to consider both Taueki and

_{comparable manslaughter cases, each acting as a check on the other.}⁵

² _{Citing R v Tai [2010] NZCA 598.}

³ _{See R v Leuta [2001] NZCA 283; [2002] 1 NZLR 215 (CA).}

⁴ _{R v Taueki, above n 1.}

⁵ R v Tai, above n 2.

[29] In this case I am satisfied that the level of violence is such that consideration of the Taueki factors is useful.⁶ The autopsy revealed an 11 x 3 cm area of bruising extending towards the occipital region at the back of the skull, a 4 cm area of bruising to the right temple, a 7 x 4 cm area of bruising over the left temple, a 3 x 4 cm area of bruising over the left top of the head and a 4 x 3 cm bruise in the muscle on the left temple. In addition there was substantial facial bruising. The level of

head trauma was such as to cause bleeding over the surface of the brain which became severely swollen. On any analysis Ms Green was the victim of serious violence as that term is intended in Taueki. Category 1 in that case extends in its terms to situations where the bodily harm does not in fact have lasting effects. Clearly this is a very much more serious case in terms of the level of violence involved and that is envisaged in Category 1.

[30] In Taueki the Court of Appeal set out the following bands for sentencing in relation to charges of causing grievous bodily harm:

(a) Band 1: 3 – 6 years; (b) Band 2: 5 – 10 years; (c) Band 3: 9 – 14 years.

[31] Band 1 was stated to be appropriate for offending involving violence at the lower end of the spectrum of GBH offences for example an impulsive attack not involving weapons or having a lasting effect.

[32] Band 2 was said to be appropriate for offending featuring two or three of the aggravating factors enumerated in that decision.

[33] Turning then to what aggravating factors are present in this case and addressing the respective submissions of counsel:

⁶ R v Taueki, above n 1, at [31] – [33].

(a) The violence was serious, but I do not consider it properly described as “extreme”. There were, for example, no broken bones. However, as Taueki itself recognises⁷ where any violent conduct is prolonged, as in this case, that will be relevant.

(b) Nor do I regard there as being a significant degree of premeditation or planning. This was effectively impulsive offending for which the catalyst was alcohol induced loss of control.

(c) There was, however, very serious injury to the victim, resulting in her death.

(d) The injuries were directed to the victim’s face and head, the most

vulnerable part of her body.

(e) And, most significantly in this case, Ms Green was particularly vulnerable as a result of the disparities in your respective sizes and strengths. She was an unusually small and fragile individual, almost sparrow-like in proportions, whereas, as I have said, you are of average to solid build. She would have had no realistic prospect of defending herself against the multiple blows you inflicted on her. Moreover, I am satisfied that you had throughout the duration of your relationship controlled and dominated her in a way which increased

her vulnerability.⁸

[34] There are, accordingly, at least three aggravating Taueki factors present in this case.

[35] Factors that should not reduce the seriousness of the offending according to Taueki include the domestic setting of the violence and the fact that the offender is under the influence of alcohol or drugs at the time of the offending.⁹ The Court

_{stated that domestic violence is a major problem in New Zealand society, and by its}

⁷ _{R v Taueki, above n 1, at [31(a)].}

⁸ _{R v Ferris-Bromley [2016] NZHC 772.}

⁹ R v Taueki, above n 1, at [33].

nature, one that is difficult to detect and is often perpetrated against vulnerable victims.¹⁰ Those comments are as apt today (if not even more so) than when Taueki was decided in 2005.

[36] Considering all those factors, a starting point towards the upper end of Band 2 in Taueki is, in my view, appropriate in the circumstances of the offending. The relevant range on Taueki principles would in my view be between 7½ and 8½ years imprisonment.

[37] I turn then to consider the broadly comparable manslaughter cases.

[38] In Te Pana v R the Court of Appeal upheld a starting point of between seven and eight years imprisonment for a manslaughter involving several punches to the face.¹¹ In that case, Mr Te Pana was bailed to his mother and stepfather’s home. A number of family members were present at the home on the night of the incident, all consuming alcohol, which is of course almost invariably a factor in this offending. Mr Te Pana became angry at his stepfather, as he was jealous of the relationship between him and Mr Te Pana’s partner. While the stepfather was seated in a chair, Mr Te Pana stood up and punched him several times to head and face. Other

members of the household were required to intervene. The stepfather was left with a black eye and a cut above his lip. The next day the step-father was found unconscious in his bed, he was transferred to hospital but later died of a subdural brain haemorrhage consistent with blunt force trauma.

[39] In R v Tai, the Court of Appeal held that had a starting point of between seven and eight years been fixed it would not have been capable of challenge.¹² Because it was a Solicitor-General’s appeal, the lowest point in that range was adopted. The case arose out of a fight outside a bar during which Mr Tai had punched the victim in the head causing him to hit the ground and then bent over him and kicked him in the

_{head with considerable force. The victim died shortly afterwards from bleeding to}

¹⁰ _{At [33(a)].}

¹¹ _{Te Pana v R [2014] NZCA 55.}

¹² R v Tai, above n 2.

the brain, caused either by the punch or the fall. The offending was deemed to be in

Band 2 of Taueki.¹³ The Court said:

The present case was squarely a band 2 case in Taueki terms and the starting point should have reflected that. It involved two, arguably three, aggravating factors, the most serious injury (death), attacks to the head, and (arguably) a vulnerable victim, once he was lying defenceless on the ground.

[40] In R v Ruru a starting point of eight years was imposed for a manslaughter caused by sustained physical attacks throughout the evening, resulting in a subdural haemorrhage to the head. The aggravating factors were the sustained violence and the previous history of such.¹⁴

[41] In R v Kengike the Court of Appeal reduced the starting point from 12½ years to ten years. The aggravating features were the victim’s vulnerability in terms of size, the high degree of violence including two subdural haemorrhages to the head, a boot print on the abdomen and a fractured eye socket, a lengthy list of prior convictions including violence and assault against the victim and a failure to render assistance to the victim.¹⁵

[42] R v Ferris-Bromley a nine year starting point was adopted (prior to uplift for earlier offending) for a very violent attack causing unconsciousness and death.¹⁶ The offender was in a relationship with the victim, with whom he attended university in Palmerston North. He was controlling and dominating. On the night of her death the offender beat the victim around the head and back as well as in the abdomen with great force. She was bleeding from the eyes and nose and was unconscious, but nothing was done to help her. When she stopped breathing about 45 minutes later the offender called an ambulance. She was dead at the time the ambulance officers

arrived. A post-mortem revealed that she had suffered violence on three separate recent occasions. The cause of her death was a rupture to the abdomen, a traumatic tear in her kidney and an acute subdural haemorrhage to the brain. The pathologist report noted that the rupture to her abdomen was uncommon and usually seen only

_{in road accident victims because of the force required to produce such an injury.}

¹³ _{At [22].}

¹⁴ _{R v Ruru CA 371/01, 12 February 2002.}

¹⁵ _{R v Kengike [2008] NZCA 32.}

¹⁶ R v Ferris-Bromley, above n 8.

[43] In this case the violence to which you subjected Ms Green was not as extreme as that in either Ferris-Bromley or Ruru. There was no significant delay in seeking assistance as there was in Ferris-Bromley. However, the lethal assault occurred within the context of an acknowledged history of domestic violence confirmed by you in your pre-sentence interview. Moreover, the victim’s high level of vulnerability and the fact that there were multiple individual assaults over an extended period and on the most vulnerable part of her body – her head – are significant aggravating factors in your offending.

[44] Taking into account both the Taueki guidelines and the cases I have referred

to, I consider a starting point of eight years’ imprisonment is appropriate.¹⁷

Factors personal to the offender

[45] Your counsel submits that you are remorseful. The Supreme Court has confirmed that if, on a robust evaluation of all the circumstances, genuine remorse has been shown by a defendant, credit should be given in addition to that for the defendant’s guilty plea.¹⁸

[46] I have read your statement of remorse and the letter also written to the Court by your mother, Mr Scott. I have considered also the pre-sentence report which states that, although you say you are remorseful, many of your statements focussed on the impact Ms Green’s death had had on you with little or no insight into the impact your actions had on Ms Green’s family. You also denigrate the victim’s character in a number of respects in the context of that report. I do not consider your demonstrations of remorse sufficiently compelling to warrant a discount additional to that implicit in your guilty plea.

Guilty plea discount

[47] I accept, however, that your guilty plea was at the earliest possible time, immediately following Crown disclosure and that in line with the decision in Hessell

¹⁷ _{R v Taueki, above n 1.}

¹⁸ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [63]- [64].

a full 25 per cent discount is warranted to reflect that. That takes your sentence to

one of six years’ imprisonment.

Minimum Period of Imprisonment (MPI)

[48] The Crown seeks a minimum period of imprisonment or MPI of 50 per cent of the sentence on the basis that this is necessary to denounce the conduct which is involved, to deter others and to protect the community from you. It cites the often and I quote “disastrous and unintended consequences” of domestic violence and says that denunciation and deterrence feature particularly prominently in that context. Your counsel accepts that an MPI is appropriate. That is a very responsible concession.

[49] It is a regrettable commentary on New Zealand society that manslaughter in the domestic context often exhibits many of the features of this case. It is an unexceptional case in that sense but the authorities establish that an MPI may be imposed even in a case which does not disclose any unusual or abnormal feature for offending of the kind in question. The focus is on the context of the offending both before and after the offence. Relevant also may be a history of previous offending of the same character which necessitates additional accountability, deterrence, denunciation or protection.

[50] In many of the broadly analogous cases cited to me and referred to in this sentencing MPI’s of 50 per cent or, in one case, slightly less have been imposed. That reflects the fact that in cases of serious violence the demands of denunciation and deterrence are necessarily at the forefront of the Court’s mind. Because all of the purposes and principles of sentencing under ss 7 and 8 and the aggravating and mitigating circumstances under s 9 are relevant to the assessment I may, however, take into account the fact of your guilty plea in assessing the extent to which it is necessary to promote in you a sense of responsibility and acknowledgment of the harm done.

[51] I have come to the conclusion that an MPI of two years and nine months is appropriate for the principal reasons of the victim’s particular vulnerability, the extended nature of the assault on her, the history of domestic violence in the

relationship and the necessity that such violence in all its forms, but particularly at the level administered on this diminutive and defenceless victim, be strongly denounced and that others, in a similar position to you, be strongly deterred. Were it not for the assistance rendered to the victim after she became unconscious, the acceptance of responsibility inherent in your plea and your long term addiction problems I would have been minded to make that MPI higher and probably in the order of three years.

Result

[52] Mr Scott would you please now stand.

[53] Mr Scott, the final sentence I impose on you is one of six years’ imprisonment. You are to serve a minimum period of imprisonment of two years and nine months before being eligible for parole.

_{[54] Thank you Mr Scott. Please stand down.}

Muir J