R v Dunn [2016] NZHC 2552 (26 October 2016)

Last Updated: 26 October 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-004-012282 [2016] NZHC 2552

THE QUEEN

v

_{DARRELL DUNN}

Hearing:	26 October 2016
Appearances:	P J L Arnold for Crown P J Kaye for Prisoner
Judgment:	26 October 2016

_{SENTENCING REMARKS OF PALMER J}

Solicitor/Counsel:

Meredith Connell, Auckland

P J Kaye, Barrister, Auckland

R v DUNN [2016] NZHC 2552 [26 October 2016]

Introduction

[1] Mr Darrell Dunn, on 9 September 2016 you were convicted of manslaughter by a unanimous jury, under ss 171, 160(2)(a) of the Crimes Act 1961.

[2] On 10 November 2015 you caused the death of Mr Teina Wharawhara by intentionally doing an unlawful act that carried the risk of more than trivial harm. This was manslaughter. The seriousness with which this is viewed in New Zealand is reflected in the maximum sentence which may be imposed: life imprisonment. I now have to decide what sentence should be imposed for your conviction.

Facts

[3] You knew Mr Teina Wharawhara. He was 42, an alcoholic and smaller than you. You were both streeties – members of the homeless community in Auckland. You met up with him during the afternoon of 10 November 2015. You and he, and another homeless man, walked to Outhwaite Park in Grafton, by the Auckland Domain, arriving about 8 pm. There, you and he and three others sat at a picnic table talking, drinking alcohol and listening to music on Mr Wharawhara’s phone – having a good time, until it wasn’t.

[4] You and Mr Wharawhara argued – perhaps over the use of his phone or him not being passed drinks. He was irritating you. You hit him and he fell off the bench to the ground. He got back up. You said at trial that Mr Wharawhara said he was going to fuck you up. You said he lunged at you with a knife but no knife was found and no other witness saw a knife. One other witness did say he saw Mr Wharawhara come towards you and you put your hands up. He heard you yell out “Fuck, did you stab me?”

[5] You hit Mr Wharawhara again several times. You kicked something – the Crown says you kicked him in the head. You say you kicked the knife away. No one else saw what you kicked.

[6] The medical evidence is that Mr Wharawhara suffered multiple bruises to his face and head, bruising, lacerations to the internal and external surfaces of his lips,

and some quite serious internal bruising to the neck. There was microscopic bleeding and swelling to Mr Wharawhara’s brain. His back was bruised, and so was the top of his head. The cause of his death was blunt force head trauma. The pathologists agreed that the combination of your punches and/or kicks, combined with Mr Wharawhara’s brain being small due to being an alcoholic, caused his death. He died soon after the attack.

[7] Afterwards, you left Outhwaite Park almost immediately after the attack. You wandered into town with others. You returned to the Park around 4.30 am. You were arrested at the Grandstand of the Auckland Domain around 4.45 am. You told the Police you didn’t know Mr Wharawhara and you’d never been to Outhwaite Park. These were lies, as you admitted at trial.

[8] The jury found that you caused Mr Wharawhara’s head injuries, from punching and/or kicking him. The jury was sure that you intended to punch and/or kick him and there was a risk that doing so would cause more than trivial harm to Mr Wharawhara. The jury found that if you did act in self-defence, you used more force than was reasonable in the circumstances as you believed them to be.

[9] On your conviction I gave you a first strike warning.

Victim Impact Statement

[10] Mr Teddy Wharawhara, on behalf of Mr Teina Wharawhara’s whānau, has provided a Victim Impact Statement which he read to the Court today. He is the deceased’s brother. He described the sadness and regret that Mr Wharawhara’s life was taken so abruptly by someone he was acquainted with, associated with regularly, and who was a distant whānau member through whakapapa. He acknowledges Mr Wharawhara was not an angel. His whānau says Mr Wharawhara chose a lifestyle his whānau did not support, regardless of their numerous attempts to settle him back into a different life.

[11] Considering the common bond between you and the deceased as fellow streeties, Mr Teddy Wharawhara says it is inconceivable to the whānau that you

could have contemplated doing what you did, then pleaded not guilty. The whānau does not seek retribution. But they would take comfort in an apology, to those who tried to save Mr Wharawhara’s life, especially Mr Martin Topia, who raised the alarm and carried Wharawhara’s body to the emergency department. They also hope that you engage in rehabilitative programmes while serving your sentence, to enable you to be worthy contributor to our society. I echo that.

Approach to sentencing

[12] Under New Zealand law there are three parts to the process of imposing a sentence:¹

(a) First, I set a starting point based on the offending here compared with previous similar cases.

(b) Second, I consider your personal circumstances and adjust the starting point based on any aggravating or mitigating factors derived from them.

(c) Third, where an offender has pleaded guilty, there would usually be a discount. That does not apply in your case.

[13] Sentencing is conducted for the purposes set out in the Sentencing Act 2002. In particular I have regard to the purposes of:

(a) holding you accountable for the harm done to Mr Wharawhara and the community;

(b) promoting in you a sense of responsibility for, and acknowledgement of that harm;

(c) denouncing your conduct and deterring you and others from committing similar offences; and

¹ R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

(d) protecting the community from you.

[14] I take into account the gravity, culpability and seriousness of the offending and the general desirability of consistency in dealing with similar offenders committing similar offences in similar circumstances. I take into account the effect of the offending on Mr Wharawhara’s whānau, the requirement to impose the least restrictive outcome in the circumstances and your personal background.

Starting point

[15] The Crown submits that the starting point for your sentence should be seven to eight years’ imprisonment. That submission is based on you not acting in self- defence. Your counsel, Mr Kaye, accepts that that range of starting points is correct.

[16] As the Court of Appeal has stated,² a sentencing judge’s approach to the starting point in sentencing violent manslaughter offending may proceed by assessing comparable sentences or by considering the factors identified in the guideline judgment of R v Taueki regarding grievous bodily harm,³ with an appropriate adjustment. I use both approaches to cross-check each other. This is a case of manslaughter involving intentional harm. It is not murder.

[17] In terms of the Taueki bands, there was no pre-meditation or weapon. But you were bigger than Mr Wharawhara and you attacked him while he was drunk and defenceless on the ground. There was, obviously, serious injury; as is inherent in the offence of manslaughter. The medical evidence, and your own evidence, indicates there was an attack to Mr Wharawhara’s head and it was that which caused his death.

[18] Mr Kaye, on your behalf, submits that you have not taken a completely cold and callous approach to your offending, but I do not consider your expressions of regret justify a discount for remorse.

[19] I consider the Crown has proved beyond reasonable doubt that you did more than punch Mr Wharawhara twice and that you kicked him. Your own evidence in

² R v Tai [2010] NZCA 598.

³ R v Taueki, above n 1.

court was that you “just starting swinging with my hand, I just threw everything as fast as I could and as hard as I could”. The medical evidence demonstrates that Mr Wharawhara was hit a number of times. And, in particular, the injury to the top of his head suggests that when you kicked at something on the ground you kicked him in the head. That is supported by the DNA evidence on your trousers and shoes though I do not regard that as determinative. Relative to other cases, however, I do not consider the extent of violence was extreme.

[20] I also must consider whether the Crown has proved beyond reasonable doubt that you did not act in self-defence. As the Crown submits, the Court of Appeal has said, in a case similar to this one, that a sentencing judge who has heard the evidence in a jury trial is entitled, where the evidence supports it, to reach his or her own view of the facts relevant to sentencing, provided that view is not inconsistent with the verdict.⁴ In that case, the judge rejected the hypothesis that the complainant had a knife and that the defendant acted in self-defence. Here, Mr Kaye submits I cannot be certain that that is so.

[21] I heard all the evidence at trial. As the Crown emphasises, no knife was found. The medical evidence about the nature of injury to your hand is not determinative. But I note there was support from the primary witness to the offending, Mr Manu, for you spontaneously exclaiming that you may have been stabbed at the time. I consider the Crown has not proved beyond reasonable doubt that you did not act in self-defence. But even if you did, as the jury found, the force you used went beyond what was reasonable in the circumstances as you believed them to be.

[22] Taking that into account, I consider your offending falls into the lower middle of band two identified in Taueki – so a starting point would be around six to seven years’ imprisonment.

[23] That accords with my cross-check against comparable cases. I have considered all the cases cited to me by counsel. In particular, if it were not for my

⁴ R v Heti (1992) 8 CRNZ 554 (CA).

view that the Crown has not proved you did not act in self-defence, I would consider this case to be comparable with the following cases:

(a) Tepana v R where, while drinking, the defendant punched the victim several times to the head and face when he had no chance of defending himself.⁵ The Court of Appeal upheld a starting point of eight years but also said seven years would have been within range.

(b) R v Tai⁶ where the Court of Appeal upheld the same range, between seven and eight years. After drinking, the defendant there punched the victim in the head who fell to the ground hitting his head and becoming unconscious. The defendant kicked the victim in the head.

[24] The possibility you were acting in self-defence, even though you used more force than was reasonable, is a mitigating factor. In my view, that takes the appropriate starting point based on those cases to between six to seven years.

[25] It is also consistent with the approach of Whata J in R v Holman who identified an appropriate range of six to seven years and adopted a starting point of six years three months’ imprisonment.⁷ There, the defendant head-butted and punched the victim in the head. When he fell to the ground the defendant kicked him twice in the head. Whata J accepted an initial movement by the victim in the defendant’s direction was interpreted as potentially aggressive but found that the

defendant was intent on giving the victim a hiding. There was some pre-meditation but the defendant there did eventually call an ambulance. The victim died. Some of those factors are worse than here; some are better. I consider the situation overall is comparable to that here.

_{[26] I adopt the same starting point – six years and three months.}

⁵ Te Pana v R [2014] NZCA 55; R v Tepana [2013] NZHC 1592

⁶ R v Tai HC Rotorua CRI-2009-087-2468, 2 June 2010; R v Tai (CA), above n 2,

⁷ R v Holman [2014] NZHC 438.

Personal circumstances and aggravating or mitigating factors

[27] I now consider your personal circumstances and whether they disclose aggravating or mitigating factors.

[28] You are of Ngapuhi descent. I understand you have two teenage children. I am not clear how long you have been living on the streets but it appears to have been for some time.

[29] You first offended as an adult in 1987. Since then you have amassed 158 convictions. Many of those are for relatively petty offences. A great number are for breaching court orders and restrictions. 18 of them directly involve violence and others are for threatened violence. You have served sentences of imprisonment on several occasions, according to my records, in 1990, 1994, 1995, 1997, 1998, 2002,

2003, 2008, 2009 and 2013.

[30] The Crown says your prior offending, especially for violence, is an aggravating factor warranting an uplift to your sentence of six months. Your counsel does not argue with that. I agree.

[31] Furthermore, in August 2014, you were sentenced to two years imprisonment. The leading offence was assault, with intent to injure, of a woman with whom you were in a domestic relationship, by striking her about the face numerous times in April 2014. Another offence was male assaults female by kicking the same woman in the head on another occasion and for your previous criminal history. One week later you were also sentenced for theft of alcohol from a liquor store. The Parole Board declined your application for parole in December 2014. But you were released on parole on 29 September 2015. You were still on parole and subject to restrictive conditions, when you killed Mr Wharawhara on 10 November 2015. This has been suppressed until now, in the interests of you having a fair trial. That suppression is now lifted.

[32] Surprisingly, this factor was not initially identified by either your counsel or by the Crown. I asked counsel for submissions on whether your offending occurring while on parole is a potentially aggravating factor. The Crown now submits it is and

warrants an uplift of one year. Mr Arnold points to statements by the Court of Appeal that offending while on parole evidences the failure of both deterrence and supervision. He acknowledges the uplift must be proportionate to the starting point.⁸

Mr Kaye, on your behalf, acknowledges this is something I can take into account but cautions that it be proportionate. He suggests six months for previous convictions and six months for offending on parole would be more appropriate.

[33] One of the conditions of your parole was that you not take drugs or alcohol. That was clearly breached. And your offending is similar in nature to the offending for which you were on parole. Having regard to that, and to other cases of manslaughter committed while subject to release conditions,⁹ I consider your offending while on parole warrants an additional uplift of nine months imprisonment.

[34] I have received advice from the Department of Corrections that you feel remorseful that Mr Wharawhara died. Mr Kaye repeats that. But you maintain you were not guilty. I consider you have a fair amount of work to do before you gain true insight into your behaviour when offending. You have told Corrections you are not a violent man. Your criminal history suggests otherwise. You say you do not have alcohol issues and you drink because there’s nothing else to do. Your lifestyle clearly does not help with that.

[35] Corrections consider you are at high risk of re-offending and have a high risk of harm to others. You apparently do not like your criminal history and have said you want to change your life, as you are getting older. If so, you will get that chance by taking rehabilitative programmes while you are in prison, as Mr Wharawhara’s whānau urge.

Minimum period of imprisonment

[36] The Crown has not requested a minimum term of imprisonment and I do not impose one. The Parole Board will be best placed to determine when you are ready

⁸ _{Robertson v R [2016] NZCA 99 at [79]; Taylor v R [2012] NZCA 332 at [46].}

9. R v Evans-Whatarangi HC Hamilton, CRI-2008-068-609 3 December 2009; R v Pokoati HC Wellington, CRI 2009-085-7527, 6 May 2011; R v Larson HC Dunedin, CRI-2011-012-1013, 6

July 2011; R v Tafutu and Liatoa [2014] NZHC 657.

for release. No doubt your serious offending while on parole last time will bear on that.

Sentence

[37] Mr Dunn, please stand.

[38] I order that you be imprisoned for seven years and six months. [39] Please stand down.

Palmer J