R v Betham [2016] NZHC 2107 (6 September 2016)

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[2] Mr Tihi, you appear for sentencing for the murder of Mr Benton Parata. Mr Betham and Mr Reuben, you appear for sentencing having been found guilty of manslaughter of Mr Parata.

[3] I have read all submissions. You have probably had a copy of them and know your position, through your counsel, and that of the Crown. My sentencing notes will record the names of cases that I have considered but will not necessarily refer to

[4] I have carefully read and this morning listened to the victim impact reports provided to me so eloquently by members of Mr Parata’s whānau. Mr Parata was obviously part of a large family who loved him, respected him and who depended on him. They had the pain of being with him over the days when he was in hospital, desperately wanting him to come back to them, but ultimately having to accept that he never could. Their on-going grief and the devastating impact Benton Parata’s death has had on them are best left as they described them. But I do recognise and want to thank you for what you have told me and also what you have told these men.

[5] I will say now that you are all going to be serving sentences of imprisonment. All three of you have real struggles ahead of you if you are going to make a real change in your life and avoid spending much more of it in prison. When you have those struggles, I urge you to think about what you heard today and the effect that your offending had on people, in some ways, at some stage, they could have been families like yours. Think of that and use it as a way of obtaining strength to ensure that you can make real changes in your lives.

[6] At the time of his death, Mr Parata was serving a short sentence of imprisonment for driving offences. He had the potential to be released on home detention. Perhaps there is some solace for you as his family to know that, in that time, he conducted himself with mana. He was his own man, not beholden to anyone else. He showed consideration towards other older prisoners who were fearful for their own safety. Some days prior to the fatal attack, he came to the aid of an older prisoner who had been assaulted because he would not give some lozenges to another prisoner. He did not “nark” on another prisoner in the sense of get another prisoner into trouble. He did assist a prison officer to recover another prisoner’s TV from Mr Tihi’s cell but he did it in a way, in conjunction with the prison officer, which did not lead to you Mr Tihi facing any disciplinary charge through having the TV. With the agreement of the prisoner officer, he spoke to you to tell you you should leave other prisoners alone but he did not do that in a way which was likely to get you into trouble. The prison officer said that, because he recognised improvements in the way you, Mr Tihi, were conducting yourself in prison, he did

not make any official report as to what had happened. The whole incident was dealt with in a low-key way, partly for your benefit Mr Tihi.

[7] Given what Mr Parata said to a prison officer, I am also sure that he would have told you Mr Tihi that he did not like the way you and some of the younger prisoners in Rawhiti treated older men who were there. The younger men in Rawhiti included both you and Mr Reuben.

[8] I also acknowledge the impact this offending would have had on the prison officers and nurses who, as Corrections staff, had to attend on Mr Parata when he was discovered in his cell with the terrible injuries that caused his death. During the trial, much was made of a suggested level of violence which exists within a prison environment such as the Rawhiti Wing in Paparua. As this trial showed, for various obvious reasons, there is the potential for violence within prisons. There are demands on Corrections officers who have to be constantly on guard to ensure prisoners are safe, while at the same time respecting them as people. They must maintain order, security and calmness within the prison environment, when there is always the potential for trouble. The prison officer who first saw Mr Parata injured in his cell, when he was on his bed, with his cell somewhat cleaned up, did not appreciate how serious his injuries were. I do not however accept that any of these prison officers, once they knew the full extent of the injuries, regarded them as normal within the prison environment. I accept that all the prison officers involved would have been profoundly distressed that Mr Parata suffered these injuries when they were on duty.

[9] This attack occurred when you three men and Mr Parata were serving sentences of imprisonment. You all participated in a planned and premeditated serious assault on Mr Parata. I am not convinced the attack was intended just as retribution because Mr Parata had told a prison officer that Mr Tihi had someone else’s TV in his cell. I think it just as likely that the attack was orchestrated because Mr Parata had mana within the Rawhiti Wing and demonstrated authority over other prisoners, which was resented and not just by you Mr Tihi. Having carefully watched the actions of other prisoners in the wing, as shown on the CCTV footage at the time you went into Mr Parata’s cell and after you came out, I am satisfied that

others in the Rawhiti Wing knew what was going to happen when the two of you and then ultimately Mr Betham entered Mr Parata’s cell and positively acknowledged what had happened when it was over. The hand signal which Mr Betham gave to others below the landing on exiting the cell was also consistent with this. But I don’t in any way treat what I have just said as being an aggravating factor in relation to this offending. I say also that it is important that that observation is not used by anyone as some sort of excuse or creating some need for anyone to try and do something which they obviously shouldn’t, that would be a terrible legacy for Benton Parata.

[10] I also have to sentence all three of you on the basis that you agreed to assist each other in a premeditated, serious assault on Mr Parata which was likely to cause him serious bodily injury. He was known to be someone who could look after himself physically. I am satisfied it was always intended Mr Parata would be attacked in a way which would give him no opportunity to properly defend himself. That aim would be achieved only if he was physically assaulted in a way that meant he would be unable to retaliate. For that to be achieved, he would have to be seriously injured, probably with a blow to the head.

[11] Consistent with that, there was no evidence of any defensive injuries to Mr

[12] Given the jury’s verdicts of manslaughter in respect of Mr Reuben and Mr Betham, I must sentence both of you on the basis that, although you agreed to assist in an attack which was going to cause Mr Parata a serious injury, you did not know that the injuries to be inflicted would be so serious as to cause his death.

[13] With the jury’s verdict in respect of you Mr Tihi, the jury were obviously sure that it was you who inflicted the fatal injuries and that, when you did so, you must have either consciously intended to kill him or were reckless as to whether death would result. I am sentencing you on the basis that you were reckless as to whether death would result. The injuries inflicted to Mr Parata’s head were horrendous. An experienced ambulance officer, who attended on Mr Parata when he was in the ambulance, said they were the most serious head injuries he had seen.

[14] The post-mortem showed that Mr Parata had suffered extensive blunt-force injuries to the head, face and neck. He had sustained at least seven forceful head impacts, a figure the examining pathologist described as “almost certainly an under- estimate”, because it was likely there were impact injuries to the left side of his head which had been obscured by the skull haemorrhage. Furthermore, it was also likely that the intended impact points represented more than one blow in that vicinity.

[15] Mr Parata’s nose was broken and there were complex fractures of his upper jaw which extended to the lower edge of both eye sockets. The pathologist explained that one possible mechanism which could have caused those injuries was a stomp on the back of the head while his face was a few centimetres from the floor. There was a bruise on the back of Mr Parata’s head consistent with that possibility.

[16] I cannot be sure on the evidence that the injuries inflicted on Mr Parata resulted from Mr Tihi stomping on his head, although this was probable. I am however sure that Mr Parata’s head was slammed forcefully into a solid object, probably the floor, so as to cause the severe facial injuries which I have just described and the subdural haemorrhage which ultimately caused his death. I am also satisfied that all three of you left Mr Parata on the floor in his cell with those severe head injuries and bleeding profusely. Given the force which had to be used to injure Mr Parata in the way that occurred, I consider it makes little difference whether those injuries were caused by Mr Tihi stomping on his head or by forcing his head into a solid object using his hand or a fist.

[17] I must sentence all three of you on the basis that Mr Parata continued to be seriously assaulted in a way that caused him serious injury after he had been rendered defenceless and that this was what all three of you had planned and had known was likely to happen.

[18] I accept there was no evidence at trial that Mr Parata was unconscious after the attack or when first observed by the prison officer who discovered him injured. I accept also that it took time for the subdural haemorrhage to develop to the point where Mr Parata went from being conscious to near death. The fact that he went to the effort of cleaning up his cell and acknowledged the presence of the other prisoner

who looked in on him says much of his toughness and determination to maintain his mana within the prison environment. It does not change the fact that you all must have known that he had been severely injured through the way he had been attacked and that you left him alone in that state.

[19] On the morning of 25 March 2015, CCTV footage of the unit immediately before the attack showed Mr Tihi and Mr Reuben outside a cell two doors along from Mr Parata’s. You appeared to be talking to someone in that cell or looking in on them, but you were obviously awaiting Mr Parata’s return to his cell. You, Mr Betham, at this time were on the opposite landing. With the way Mr Parata climbed the stairs and walked back to his cell, it is clear he had no idea of what was going to happen to him.

[20] At 9.22 am, Mr Parata entered his cell and was followed seconds later by Mr Tihi, who had bound his hands as he walked towards it. Four seconds later, Mr Reuben also entered Mr Parata’s cell, in what I accept was “a launching movement”. After you had both entered the cell, Mr Betham, who had surreptitiously been watching what happened, walked over from where he had been standing, in a manner that did not draw attention to himself and then stood outside Mr Parata’s cell, keeping watch. Just after 9.23 am, Mr Betham also entered Mr Parata’s cell, closing the door behind him. Twenty-six seconds later, Mr Betham exited the cell, followed about six seconds later by Mr Tihi and Mr Reuben.

[21] Mr Tihi and Mr Reuben had been in Mr Parata’s cell for about one minute 20

[22] Mr Parata was discovered by a prison guard at 9.50 am. The guard realised Mr Parata was injured but did not immediately appreciate the extent of his injuries. The guard nevertheless sought assistance for him. As soon as the prison nurses saw Mr Parata’s injuries, they appreciated they were potentially life-threatening. An ambulance was summoned and the whole situation was treated as one of extreme urgency. Mr Parata was admitted to Christchurch Hospital but his condition had deteriorated rapidly. Notwithstanding surgical intervention to relieve the effect of a

subdural haemorrhage, he suffered irreversible brain damage and died without recovering consciousness on 31 March 2015.

[23] I turn to the purposes and principles of sentencing. Although the process is slightly different for the offences of murder and manslaughter, in sentencing each of you today, I must have regard to the purposes and principles as set out in the Sentencing Act 2002. I must hold you accountable for the harm you have caused and I must promote in you a sense of responsibility for that harm. I must denounce your conduct and deter you and others from committing this type of offending. I must also consider the need to protect the community and to provide for the interests of the victims of your offending.

[24] In this case, the most relevant principles of sentencing are the gravity of your offending, including your individual levels of culpability, and the seriousness of your offending in comparison with other types of offences. So far as possible, I must impose a sentence that is consistent with sentences imposed in other similar cases. I have been provided with and have considered a significant number of sentencing decisions which all counsel have provided to me.

[25] I must also take into account the aggravating and mitigating features of your offending, and of each of you personally.

[26] I deal now with you Mr Tihi. Under s 102 of the Sentencing Act 2002 you must be sentenced to life imprisonment unless, given the circumstances of your offending and your own circumstances, that would be manifestly unjust. Mr Tihi, there is, and can be, no suggestion that exception might apply in this case. You will be sentenced to life imprisonment.

[27] I turn to consider your personal circumstances and you heard Mr Shamy tell me about those. I am grateful also for the report that he made available to me recently. I refer first to the pre-sentence report prepared for this hearing. You declined to participate in the interview with the report writer, merely making disparaging comments about the outcome of the trial, denying murderous intent and indicating your intent to appeal.

[28] You are 23 years old with previous convictions for violence. At the time of this offending, you were serving a considerable sentence of imprisonment for one such conviction. Based on your criminal history, the report writer has assessed that you have a high likelihood of reoffending and that you pose a high risk of harm to others. Aggressive behaviour has been a recurring theme in your life. As a child, you were the victim of such behaviour as if it was a normal part of family life.

[29] A psychological report obtained in 2010, in respect of previous offending, noted that you have a borderline level of intellectual functioning, and a history of symptoms of ADHD and oppositional defiance disorder developing into conduct disorder.

[30] As to the offending, in letters you wrote to your family members, you demonstrated that you regarded yourself as responsible for Mr Parata’s death. Despite this, you have never openly shown any feeling or remorse for Mr Parata or his bereaved family.

[31] While not of a degree to bring your offending within s 104, your offending did have these aggravating features:

ability to defend himself and you must have appreciated and, as the jury found, did appreciate the risk of death;

(c) unlawful intrusion into Mr Parata’s cell: although not a dwelling place, this was the victim’s own private place in the prison. Prisoners refer to their cells as their house. Consistent with the premeditated nature of the attack, it was a place where what happened would not be recorded on CCTV. It was also a place where Mr Parata would be especially vulnerable because it would not have been easy for him to get away from you, especially so when you had two other associates ready and close-by to support you in what you were doing;

(e) another aggravating feature was that this offence was committed while you were subject to sentences of imprisonment for similar violent offending; and

[32] There are no mitigating factors for your offending, or relating to you personally. There are significant aggravating features relating to you personally, given your previous convictions for violent offending. On 4 July 2011, when you were 17 years old, you attacked an older man who was walking home after midnight, having been at a friend’s house. You and two associates attacked the victim. You thumped him, kicked him and jumped off a car onto his head. He suffered serious life-threatening injuries which included an intracranial bleed, severe swelling about the head and face, including multiple facial fractures, multiple jaw fractures, broken teeth and unconsciousness. You pleaded guilty to a charge of wounding with intent to cause grievous bodily harm. On two separate occasions, the Judge spelt out for you how serious the injuries were that you had inflicted and how they were life- threatening. You were told how the injuries you had inflicted had affected that victim’s life.

[33] In March 2011, while you were on remand awaiting sentence on that charge, you assaulted a fellow inmate. Without warning, you kicked the victim in the face

and knocked him out. As a result, the victim’s nose was broken in three places, his cheek-bone was broken in two places and he had bruising and a fractured jaw. In relation to that, you pleaded guilty to a charge of wounding with intent to injure.

[34] You were sentenced on 4 July 2011 to imprisonment for a term of 5 years and

3 months, with a non-parole period of 3 years and 6 months and a further sentence of

[35] With that history, the need to protect the community, including other prisoners, and to deter you from further offending must be given priority.

[36] The issue for me is what period I should specify as the minimum period of imprisonment you must serve before you can be considered for release on parole.

[37] When a life sentence is imposed, it must be accompanied by a minimum term of imprisonment of not less than ten years.¹In certain circumstances, however, s 104 of the Sentencing Act requires a minimum period of at least 17 years, unless such a sentence would be “manifestly unjust”. Because s 103 is subject to s 104, I have to consider whether s 104 applies in the circumstances of this case.

[38] The Crown tentatively submitted that four factors of s 104 might have had application in your case. This is what could have applied:²

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

(d) that the deceased was particularly vulnerable because of his or her age, health, or because of any other factor.

[39] Ultimately, however, as you heard, the Crown submitted that your offending does not fall within s 104 of the Act. In determining whether any of the circumstances listed in s 104 are present in your case, I must be satisfied that the circumstance is sufficiently “exceptional” to trigger the 17 year minimum term.³

This assessment requires me to compare the circumstances of different murders, considering the degree of your culpability in relation to that involved in what is discussed as the standard range of murders.⁴In doing so, I take into account the relevant aggravating factors set out in s 104, to the extent they were present, along with any other applicable aggravating factors. As I have said, there are none in mitigation. As well, I have regard to the policy of s 104 that, in general, the presence of one or more s 104 factors establishes that the murder is sufficiently serious so as to justify a minimum term of imprisonment of not less than 17 years.

[40] Having considered the factors which the Crown suggested might have justified the application of s 104, and other cases where such factors have been relevantly considered, I accept the submission made by the Crown.⁵I am not required and I am not going to impose a minimum term of 17 years’ imprisonment.

[41] Having concluded that s 104 does not apply, I must now impose a minimum period of imprisonment of at least 10 years. The length of the minimum period of imprisonment must be that which I consider is necessary to satisfy all or any of the following purposes:⁶

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

[42] The Crown has suggested a minimum period of imprisonment of 15 years. Your counsel, Mr Shamy, suggested a starting minimum period of imprisonment of

[43] In my view, a minimum period longer than 10 years is needed to satisfy the sentencing purposes of accountability, denunciation, deterrence and community protection. You have inflicted great harm on Mr Parata’s surviving family members, as their victim impact statements made clear. Their grief is apparently of no concern to you and in this offending, as on previous occasions, you have failed to take responsibility for the devastating consequences of your actions.

[44] Denunciation is also an important aspect of sentencing in murder cases, particularly when homicide has resulted from a series of escalating violent offences. Beyond the general need to deter other inmates from homicidal violence, there is a special need to deter you specifically from an established pattern of extreme violence targeted at the heads of your victims. The previous imposition of a stern sentence for serious violent offending has not had the desired deterrent effect.

[45] Given your demonstrated propensity for extreme violence against those you think have offended against you, there is a strong need for community protection, which the statutory benchmark of ten years cannot achieve.

[46] To ensure reasonable consistency of outcome, I have compared sentencing decisions in similar cases. I have considered particularly R v Lisiate, a case involving the meticulous planning and implementation of a murder in a maximum security prison: the sole co-offender convicted only of murder was sentenced to life imprisonment with a minimum non-parole period of 17 years.⁷Although it bore some similarities with your case, in terms of the prison setting and situational vulnerability of the victim, Lisiate was markedly more serious. It engaged several of

_{the “exceptional circumstances” outlined in s 104. Had s
104 not been engaged, the}

sentencing Judge would have adopted a starting point for the minimum period in the range of 12 to 14 years, with an uplift of two years because of the aggravating features of the offending having occurred while subject to sentence and the prisoner’s previous convictions for serious violent offending, including murder. The starting point in that range would thus have been a minimum period of imprisonment in the range of 14 to 16 years.

[48] I have seen the detailed psychological report prepared for the Parole Board in July 2015 when you were awaiting trial. That report concluded that you were at a very high risk of future violent reoffending and that, without treatment, your risk of violence would be considered imminent. The psychologist however reported that you had engaged well in the interview process. You had asked for help with anger problems and said that, despite your history, your motivation to engage in treatment was good. Without treatment and your responding to it, it is difficult to see how you could be released into the community, even after a minimum term of imprisonment has expired. You, and others who must have encouraged and supported you in what you did that has led to you being here today, should be mindful that, as a result of my having to impose a life-sentence for murder, at the age of 23, you face the prospect of having to stay in prison for a very long time. You will not be granted parole unless the Parole Board is satisfied this can happen without risk to the public. Mr Tihi, I hope you remember that when you work out just where your loyalties are going to lie in the years ahead.

[49] Given the protection that will be available to the community through your being subject to a life sentence, I do consider that the Crown submission is pitched too high but that a minimum period of 13 years’ imprisonment is necessary to satisfy

[51] In sentencing you today, the process is different from that which applies to Mr Tihi’s murder charge. I will set a starting point for your offending having regard to the seriousness of the offending itself. I will then adjust your sentence to account for mitigating or aggravating features that are personal to you. There will then be a final discount to reflect your offers to plead guilty.

[52] Having been found guilty of manslaughter, you are both liable to imprisonment for life.⁹Section 81 of the Sentencing Act provides that, where an offender is liable to life imprisonment, the Court may, in accordance with that Act, impose a sentence of imprisonment for life or any lesser term.

[53] The Crown submits that this offending falls into the category of manslaughter where culpability is high and the need for deterrence is great. It is submitted that the offending falls within the middle of band three of R v Taueki, warranting a starting point between 12 and 14 years.¹⁰

[54] Mr Rapley submits that analysis of other manslaughter cases shows this is not one of the most serious cases of its type. He refers to the fact that Mr Parata was up washing his face and cleaning his cell two minutes after you left his cell and that he was able to converse with others some 43 minutes afterwards, as evidence that this is not among the most serious of cases involving manslaughter.

[55] Mr Rapley submitted, with support from Mr Cook, that Taueki guidance is inapplicable in this case, as the Court cannot determine that Mr Reuben (and, by

_{extension, Mr Betham) inflicted any injury with intent to cause very
serious harm.}

Mr Rapley relies heavily on the context of the prison environment, where he says assaults and punch-ups are the norm. Mr Rapley suggested it had to be proved that you foresaw serious injury even though death was not intended or foreseeable.

[56] I do not accept this rejection of the Taueki approach. The present case, as in R v Jamieson, involved serious violence where serious injury, if not death, was a foreseeable outcome and I am sure an intended outcome.¹¹It would be both artificial and unacceptable to find that the prison setting somehow lessened the foreseeability of serious injury from a beating which all three of you understood was to be meted out on Mr Parata.

[57] The level of culpability and gravity in manslaughter cases can vary greatly. Accordingly, there is no guideline case for manslaughter; culpability is to be assessed in light of the circumstances of each case and, importantly, with special consideration to the role of each defendant.¹²However, the guideline judgment of R v Taueki can provide assistance in cases of manslaughter involving serious violence where serious injury was a foreseeable outcome.¹³

[58] I therefore consider your sentence in Taueki terms, making an appropriate adjustment for the fact that the consequence of the serious violence has been not just serious injury, but death. I also assess your individual culpability by reference to, among other things, comparable manslaughter sentences.¹⁴

[59] In terms of Taueki, the following features contribute to the seriousness of this offending:¹⁵

(a) Extreme violence: despite its brevity, the assault on Mr Parata was unrelenting and very violent. There were at least seven blows

¹²_{See R v Wickliffe [1987] 1 NZLR 55 (CA) at 62; R
v Edwards [2005] NZCA 70; [2005] 2 NZLR 709 (CA).}

¹⁴This two-pronged approach was described as “a counsel of perfection” in R v Tai, above n 13, at

		inflicted to Mr Parata’s head and face, which could not be distinguished as individual impacts due to the effects of subsequent
		surgery and the likelihood of one injury obscuring the impact of
		others. The violence of the later blows was the more serious because
		Mr Parata must have been rendered defenceless when that force was
		used.
	(b)	There was premeditation: the attack was planned and the three of you
		operated as a team before and during the fatal assault.
	(c)	There was serious injury: the jury were not satisfied that you, Mr
		Reuben or Mr Betham, intended to kill Mr Parata or were consciously
		reckless as to that possibility. Nevertheless, you must have known,
		and I find did know, that it was likely Mr Parata would be seriously
		injured. The actual consequence of what happened makes your
		offending more serious. The injuries inflicted on Mr Parata were
		fatal.
	(d)	Attacking the head: the attack on Mr Parata was directed at his head.
		You must have both anticipated this would be the case. Taueki
		suggests that an attack to the head should be treated similarly to offending involving the use of a weapon.¹⁶
	(e)	There were multiple offenders/attackers: with all three of you acting
		in concert in this incident.
	(f)	There was something in the nature of a home invasion: with the way
		this all took place in Mr Parata’s cell.
	(g)	This was in the nature of vigilante action: the attack was meted out
		for the purpose of punishing Mr Parata because, in some way, he had
		not behaved in the way others regarded as appropriate.
[60]	This	combination of aggravating features is particularly grave and is

comparable to offending within band three of Taueki. On that basis, as the victim

_{died as a result of this serious concerted prison attack, in terms of
Taueki, a starting}

point of around nine to 11 years could be called for, but I need to consider carefully the involvement of each of you Mr Reuben and Mr Betham individually.¹⁷

[61] Mr Reuben, the Crown has submitted a suitable starting point for your offending is 12 to 14 years. Mr Rapley submits it would be in the range of five to seven years.

[62] Mr Reuben, you were present throughout the attack on Mr Parata. I do not accept that the original intention was for you to be just a lookout. You were right beside Mr Tihi as you both waited at the door to a nearby cell for Mr Parata to return to his cell. You were right with Mr Tihi as he walked towards Mr Parata’s cell wrapping cloth around one hand as he did so. The door to Mr Parata’s cell was left open after Mr Tihi went in. Within seconds, you launched yourself into the cell in a way that showed you were there to support Mr Tihi in what was meant to be a pre- emptive strike against him which would leave him defenceless.

[63] The jury must have thought it reasonably possible that you did not know the attack would be as violent as it turned out to be, but I am satisfied you knew there was going to be an assault that would seriously injure Mr Parata. There is no evidence that you attempted to restrain Mr Tihi in what he was doing and I do not accept that you did so. I have no regard to the statement which was report that you had made in the pre-sentence report. Had you intervened in that way, it is unlikely Mr Parata would have suffered the number of injuries which were inflicted. Such intervention is also inconsistent with the way the three of you acted on leaving Mr Parata’s cell. Through remaining in the cell throughout the attack and close-by, you continued to support and assist Mr Tihi, even if you did not actually deliver any blows yourself.

[64] I am satisfied that you were, as planned, directly involved in Mr Tihi’s attack on Mr Parata, even if it was only by way of providing support, encouragement and back-up if needed. Your mere presence in the cell would have made it more difficult

for Mr Parata to defend himself or to escape. This was not a situation where your involvement can be treated as less serious just because there is no evidence that you actually struck Mr Parata.

[65] Unlike the prison officer who first saw Mr Parata with his injuries and did not appreciate how serious they were, you saw just how his head must have been slammed into a solid object. You must have seen the damage done to his face and the way he bled. You were close-by as all that happened. In that way, you were involved as a party to the most serious of violence. I do not accept that the violence is any less serious because it occurred in the prison environment.

[67] In McNaughton, Miller J observed that, in cases where there was planned group violence, including cases having a gang connection or involving a single victim, the secondary party might receive a starting point of six to eight years.¹⁹

[68] In R v Tafutu, Venning J adopted starting points of eight years and three months, and seven years and six months for two prisoners who had been involved in punching someone in a house where they had gone to get cannabis, the punches contributing to a heart attack and his death.²⁰

[69] In Pokai and Black v R, the Court of Appeal upheld a starting point of eight years for two women who had assaulted a vulnerable man on a beach.²¹It was not possible to say just how the victim had been assaulted but the starting point was appropriate because of a level of premeditation leading up to the assaults and the prisoners’ callousness in leaving the deceased seriously injured at the beach. His body was not discovered until much later. In that judgment, the Court of Appeal referred to their judgment in Tepana v R where they had upheld a starting point of

_{eight years’ imprisonment for a man who, after drinking in the
family home, attacked}

¹⁸R v Jamieson, above n 11; R v Tafutu [2014] NZHC 657; R v Clarke HC Rotorua CRI-2009-270-

000073, 29 May 2009; Pokai v R [2014] NZCA 356; R v Taoho HC Rotorua CRI-2009-263-

000163, 12 December 2011; Galloway v R, above n 13; R v Connelly HC Whangarei CRI-2008-

his stepfather, punched him several times to the head and face with his fists. He was left with a black eye and a cut above the lip but overnight his condition deteriorated and he was found unconscious in his bed the next day. Just as with Mr Parata, he subsequently died as a result of a subdural brain haemorrhage. In both these cases, there was not the collection of aggravating features that, in terms of Taueki, made the assault on Mr Parata so serious.

[70] In light of the flexibility of the Taueki guidance and keeping in mind the need to establish a starting point which properly reflects the culpability inherent in the offending and is consistent with comparable cases, I adopt a starting point of 9 years’ imprisonment.²²

[71] The Crown has accepted that, although you have a criminal history, it is for offences of a different sort to this. You do not have any convictions for serious violent offending except for a Youth Court assault. At the time of this offending you were 20 years of age. I cannot however give you a discount for youth given this offence was committed while you were serving a prison sentence and represents, as stated by the probation officer in the pre-sentence report, a continuing escalation in terms of the seriousness of your offending. Overall, you are assessed as posing a very high likelihood of reoffending and a high risk of harm.

[72] I acknowledge Mr Reuben that you did offer to participate in a restorative justice meeting with Mr Parata’s family. I would give you some credit for that if there had been some demonstration of real empathy on your part for what they had suffered and remorse for your involvement. There is no suggestion of that in the pre- sentence report. To the probation officer, you declined to make any comment regarding remorse and said that you were not sure what you thought.

[73] You first appeared in Court on a charge of murder in April 2015. Mr Reuben, you have been found guilty of manslaughter. You offered to plead guilty to that charge once the pathology evidence was provided in full and the ESR evidence was presented. I am told this was in approximately February 2016. For understandable

reasons in the circumstances of this case, the Crown was not willing to accept that offer and drop the charge of murder. Nevertheless, you are entitled to a credit for the offer of a guilty plea given this was what you were ultimately convicted of. The Court of Appeal has also said that you are entitled to that credit even though at trial you denied you were guilty of both manslaughter and murder.²³

[74] As with Mr Betham, the Crown has suggested that the discount should be 10 to 15 per cent. Your counsel has suggested the discount should be 25 per cent.

[75] I do not however consider that you made that offer to plead guilty at the first available opportunity. You knew without waiting for ESR evidence or the pathologist’s report that you had been a party to a planned serious assault on Mr Parata, that he had suffered serious injuries in that assault and that he had died. On that basis, you knew you were guilty of manslaughter from the time you were first charged. The evidence as to your guilt, at least as to manslaughter, was strong given the CCTV footage which showed that you were in Mr Parata’s cell throughout the time he was attacked.

[76] If your plea of guilty was offered on the same basis as submissions have been presented for you now, it would have had to be accepted by the Crown that the basis of your guilty pleas was merely that you had accepted that you had been party to a simple assault in the nature of a prison fight that had, contrary to your expectations, resulted in serious injury and ultimately death. That was not the basis on which I consider you have been found guilty of manslaughter. You were a party to an assault that you knew would involve serious violence and injury to Mr Parata.

[77] I consider an appropriate discount for you for the offer of a plea of guilty to a manslaughter charge is 15 per cent.

[78] With a starting point of imprisonment of nine years and a discount for that amount, your end sentence would be reduced to seven years and eight months’ imprisonment.

[79] The Crown has submitted a minimum of term of imprisonment should be imposed in respect of both you Mr Reuben and you Mr Betham. They have not suggested what those minimums should be.

[80] I do not accept that the brutal assault which Mr Parata was subjected to can be considered normal within the prison environment. In this case, the purposes of deterrence, denunciation and protection of the community, including prisoners, require a minimum period of imprisonment for you Mr Reuben which I will fix at four years.

[81] Mr Betham, for you, Mr Cook adopted many of the submissions that Mr Rapley made for Mr Reuben. He stressed the need to focus on your individual culpability. He argues that your involvement was only as a lookout. In my view, Mr Cook however, in his submissions, understated your involvement in what happened. He says you were not involved in the assault within the cell. I accept the evidence does not establish that you administered any blows yourself or that, for instance, you helped hold Mr Parata down while someone else attacked him.

[82] You were, however, involved because you encouraged and assisted in what happened through acting as a look-out. You were in the cell for approximately 25 seconds towards the end of the attack. Either Mr Parata was being subjected to more violence during that time or he had already been subjected to all the violence which occurred and was severely injured. When you came out of the cell you signalled to someone else in a particular way which I am sure was intended to associate you with what had happened in the cell. For reasons which I have discussed in relation to all of you, I am satisfied you knew there was going to be a serious assault on Mr Parata and that it was likely, as a result of this, Mr Parata would be seriously injured. Given that you went into the cell, it cannot be said the plan was for you to always stay away from what happened within the cell. What happened in the cell was not something unexpected or unforeseen which you had not intended to be a party to in the way that

was true of the defendant, Mr Perry, in the case which Mr Cook referred to.²⁴Given

your actions on leaving the cell, I do not accept that your reason for going into the cell was to pull the main protagonist off the victim, as you told the probation officer. As with Mr Reuben, I don’t have any regard to that statement.

[83] In the case of R v Heremaia, which was a case Mr Cook referred to me, the starting point for a defendant who was to be a lookout in a situation where there was to be a serious attack on another person, an attack which actually led to the death of that person, the Judge adopted a starting point for someone who was to act just as a lookout in the range six to eight years.²⁵

[84] The attack on Mr Parata was not what Mr Cook described in his submissions as a “regular run of the mill prison assault”, if there is any such thing. It was not an assault “of the ordinary course of events in prison”. Three people were to be involved in the attack, even if one of them was primarily to act as a lookout. In that sense and given what was intended, what was planned was different from the case of McNaughton which Mr Cook referred me to. In particular, your situation was different from that of Mr Perry.

[85] Given, Mr Betham, you were in the cell for only 26 seconds at the end of the attack, I cannot sentence you on the basis you were physically in the cell, close to Mr Tihi and Mr Parata as Mr Parata’s head was forced into a solid object in the way that caused the fatal injuries. In that way, your involvement is different from that of Mr Reuben. There is also no evidence or information to suggest that you had been involved in any incidents of violence while you were in prison on the sentence you were serving at the time of this incident. You were serving a sentence of three months’ imprisonment, imposed on 17 March 2015. But for this incident, you would have been eligible for parole within weeks. I do accept that in your time in prison you had only spoken to Mr Parata on very few occasions and that you had nothing against him personally.

[86] Despite all of that, at the age of 36, you agreed to get involved in a serious assault on a prisoner because you were asked to. Your statements to the probation officer indicate you were asked to get involved in a planned attack by one of your

co-offenders. The way you acted, with the signal you made after coming out of the cell, indicates to me that you may well have become involved because of influences which were brought to bear on you, not just by your co-offenders but by others. You told the probation officer you could not provide information as to your own involvement because you did not want to comment on the movements of any of the other offenders.

[87] It is also significant that, unlike Mr Reuben, you were not close-by when Mr Tihi entered the cell. You were on the landing on the other side of the prison, so not in a position where you could immediately provide physical assistance to Mr Tihi if it was needed. When you did move over to the other side, it was initially to take up a position very much as a look-out. Mr Parata must have already been severely injured and disabled when you went into the cell.

[88] Having regard to what the evidence proved happened, I accept your involvement was less culpable than that of Mr Reuben. I adopt a starting point for your offending of seven years. I acknowledge that you have offered to participate in a restorative justice meeting. Like Mr Reuben, you were however not willing to make any expression of remorse to the probation officer. You nevertheless accepted that your actions had contributed to the death of Mr Parata.

[89] You have some 66 previous criminal convictions, including a number for assaults for which you have received sentences of imprisonment. On 1 July 2009, you were sentenced to imprisonment for two years and nine months on charges including common assault, possession of an offensive weapon and an aggravated assault. At the time of your involvement in this offence, you were serving a sentence of three months’ imprisonment for assault. There has to be an uplift in the starting point because of your criminal record and what that demonstrates as to the risk of further offending. The pre-sentence report has described you as a high risk offender with extensive reintegrative and rehabilitative needs. In the circumstances, an appropriate uplift, given your criminal record, is six months leading to an adjusted starting point of seven years and six months.

[90] You also offered to plead guilty to a charge of manslaughter in substitution for murder. That offer was made on 2 February 2016 after ESR evidence and Dr Sage’s updated brief had been supplied. You offered to plead guilty on the basis you were a lookout. Primarily, you were. You were not involved in the same way as Mr Reuben was. Given the limited time you were in the cell, it was not going to be possible for you to accept or for any of your co-offenders to try and put the blame on you for what was ultimately done to Mr Parata. I listened carefully to Mr Cook’s submissions today and his explanation as to the difficulties he faced in communicating with you in the months before February 2016. I am going to give you a discount of 20 per cent, that would reduce your sentence to six years. In respect of you, as with Mr Reuben, there was an opportunity and a basis on which you could have pleaded guilty earlier than you offered to.

[91] While you did choose not to make any statement of remorse to the probation officer, your acceptance of responsibility for your involvement in what happened and the fact that it contributed to Mr Parata’s death is of some significance. Coupled with that was your statement, which I accept, that you had no personal animosity towards Mr Parata. Having watched you during the trial and today as you listened to the statements that were made by Mr Parata’s family, I suspect that it is because of the associations which led to your involvement in this offending and your being in the prison environment that you have been inhibited from demonstrating the remorse which your counsel says you have for what happened. I have taken that into account in the ultimate sentence which I fixed for you.

[92] Mr Betham, I am not going to fix a minimum term of imprisonment on your sentence.

[93] That completes the explanation which I needed to give to you and to the family, but also to the community so that all three of you, and everyone else, understands the basis on which your sentences were to be set.

[95] Mr Tihi, I am now required to give you a first strike warning for serious violent offending. Listen to this carefully but your counsel will no doubt also discuss it with you afterwards. [The Judge gives the first strike warning.]

[96] Mr Tihi, on the charge of murder, you are sentenced to life imprisonment. I direct that you serve a minimum period of imprisonment of 13 years before you become eligible for consideration for release on parole.

[97] Mr Reuben, I am now required to give you a first strike warning for serious violent offending. Again, listen carefully. [The Judge gives the first strike warning.]

[98] Mr Reuben, on the charge of manslaughter, you are sentenced to imprisonment for a period of seven years and eight months. On that, there is to be a minimum term of imprisonment of four years.

[99] Mr Betham, I am now required to give you a first strike warning for serious violent offending. [The Judge gives the first strike warning.]

[100] Mr Betham, on the charge of manslaughter, you are sentenced to imprisonment for a period of six years.

Hearing:	2 September 2016
Counsel:	D J Orchard for the Crown P J Shamy and A McCormick for the Defendant Tihi J R Rapley for the Defendant Reuben K H Cook for the Defendant Betham
_Date:	_{6 September 2016}

High Court of New Zealand Decisions

R v Betham [2016] NZHC 2107 (6 September 2016)