R v Everett [2018] NZHC 468 (20 March 2018)

Last Updated: 20 March 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-044-000576 [2018] NZHC 468

THE QUEEN

v

KEVIN LESLIE EVERETT

Hearing: 20 March 2018

Appearances: S L McColgan and E L Woolley for Crown

K-A Stoikoff and P J Syddall for Prisoner

Judgment: 20 March 2018

_{SENTENCING NOTES OF JAGOSE J}

Solicitors:

Meredith Connell, Auckland

Public Defence Service, North Shore City

Public Defence Service, Waitakere

R v EVERETT [2018] NZHC 468 [20 March 2018]

[1] Mr Everett, on 21 February 2018, a jury found you guilty of the manslaughter of your partner, Leeanne Hart, by your assault of her.¹ I gave you a first strike warning at the time of your conviction. I am now going to sentence you on the jury’s manslaughter verdict.

[2] I have listened to what counsel had to say, both for you and for the Crown. There is little disagreement between them. The Crown recommends you be sentenced to seven to eight years’ imprisonment. Your counsel has recommended the marginally lower sentence of seven years.

[3] However, I am not bound by counsel’s recommendations. I must satisfy myself of the appropriate sentence for the gravity – or seriousness – of your offending, including your culpability – or responsibility – for it.

The facts of your offending

[4] Mr Everett, I first outline the facts of your offending.

[5] You had been in a relationship with Ms Hart for about three years. You were living together when the assault took place. Since about March 2016, you rented a small one-bedroom flat on a semi-rural property in Redvale, just north of Auckland. The flat adjoins the principal dwelling on the property, occupied by your landlords, Kenneth Rush and Louise Travis, and Ms Travis’ daughter. You and Ms Hart both had regular contact with Mr Rush and Ms Travis.

[6] At least by the time of your offending, your relationship with Ms Hart was not a happy one. You were both drinkers. Ms Hart rarely left home, and was often intoxicated and incapacitated. Although she had access to funds, which she provided you, she was reliant on you to bring food and alcohol home, and to prepare meals. You returned home after work from the pub most days, also intoxicated. Increasingly, your return heralded heated arguments with Ms Hart, clearly audible to your neighbours and others near your flat. Ms Travis’ daughter rode horses with friends outside your

_{flat, and they heard the arguments between you also.}

¹ Crimes Act 1961, ss 160(2)(a) and 171.

[7] Tensions between you and Ms Hart observably heightened in the days and weeks leading up to your assault on her on or about Saturday, 11 February 2017. At times that abuse became physical. In your police interview, leaning over the interviewing police officer, you demonstrated using both hands to slap Ms Hart’s head. You admitted disciplining her in that way, but said it was “not [a] full on bash session”. The pathologist called by the Crown identified evidence of an earlier episode of trauma to Ms Hart’s head ten to fourteen days before her death.

[8] In the days and weeks leading up to Ms Hart’s death, you described her to

Mr Rush as “worthless”. You said you hoped “she’d drop dead”; she was “a waste of space”. An indication of the state of your relationship can be seen in your police interview, where you said you found the relationship “extremely frustrating”; you described it “like basically living with a dog that continues to bark”; you found

Ms Hart “annoying”.

[9] Mr Rush said, by the weeks preceding Ms Hart’s death, the arguments had become more abusive – “fights”, “rather than just yelling and screaming”. In the late afternoon or early evening of Friday, 10 February 2017, one of the children horse- riding with your landlord’s daughter heard and saw you fighting with Ms Hart. The child said Ms Hart yelled “Leave me alone”. You were standing, bending over Ms Hart sitting on the couch, and thrusting your open hand towards her head. The child told Ms Travis what she had heard and seen.

[10] Ms Travis developed a habit of checking in on Ms Hart after your more volatile recent arguments. She saw and spoke to Ms Hart around midday on Saturday,

11 February 2017. Ms Travis told Ms Hart she “looked absolutely terrible” and asked if she was okay. Ms Hart said she was not. Ms Travis described Ms Hart as having “really red” eyes, and her face “looked puffed up more than normal”. Ms Hart reported having a “really bad headache”.

[11] Around 7:00pm that evening, Ms Travis visited Ms Hart at the flat. Ms Hart

“looked like she was in agony”, and said she was “feeling completely awful”.

Ms Travis invited Ms Hart back to her house. Once there, in tearful conversation,

Ms Hart said she had lumps on her head from where you had hit her. Despite

Ms Travis’ wish Ms Hart stay at the house overnight, to visit a doctor in the morning, Ms Hart returned to the flat around 10:30pm that evening.

[12] Mr Rush walked her slowly back to the flat, Ms Hart frequently stopping to rest on the short 10m-15m walk between the access doors to the adjoining properties. You were at home in the bedroom with the lights turned off. Mr Rush sat Ms Hart on the couch, turned on the light in the lounge, and left to return home. On his return home, he noticed the flat’s lights had been turned off.

[13] The next day, Sunday, you left the flat early in the morning to spend the day fishing with friends. The flat stayed closed up all day, its curtains drawn over the windows. Ms Travis grew increasingly concerned by the absence of signs of movement in the flat, and called the Are You OK? family violence support service for advice.

[14] One of your friends brought you home mid-afternoon. You opened up the doors and windows and curtains, and had a beer with your friend. Once the windows were opened, Ms Travis heard loud ‘gurgling’ coming from Ms Hart’s bedroom, which she was relieved to think was Ms Hart snoring. Your friend also heard those noises, which he described as “very loud”. You accepted those noises were strange; you told police you’d “never [heard] her sound like that before”.

[15] Once your friend left, you closed the windows and curtains again. Ms Travis heard you swearing, “yelling and screaming at [Ms Hart] to shut up”. She thought

Ms Hart’s lack of any response was uncharacteristic; Ms Hart would normally scream back at you not to speak to her like that. Ms Travis’ daughter told Ms Travis you were acting “really weird[ly]”, “peeping [out] through small gaps in the curtains”. Ms Travis called Mr Rush to discuss these developments. Mr Rush told her to call the police.

[16] Instead, on the pretext of returning a bracelet Ms Hart had left at the house the previous evening, Ms Travis knocked on the door, and asked you if she could give the bracelet to Ms Hart. You told Ms Travis she could but Ms Hart was non-responsive; you said she was “comatose”. Ms Travis went into the bedroom to see Ms Hart. She

said in evidence, “I’ve never really ever seen anyone look like that and breathe like that before... it just looked like the whole person was already gone”.

[17] Ms Travis came out of the bedroom and said to you “We need to get an ambulance right now”. You said to give it an hour or so; that Ms Hart would be okay. Ms Travis said she did not think Ms Hart even had five minutes. You repeatedly said, “If she dies, she dies”. You tried to delay Ms Travis’ departure from the flat.

[18] All that is Ms Travis’ evidence. It is very credible. I cannot be sure of the exact words you used, but I am satisfied you showed little to no regard for Ms Hart’s condition, and did nothing to seek medical assistance.

[19] When Ms Travis left your flat, she called an ambulance. The emergency service personnel in attendance assessed Ms Hart from their observations to be in a critical condition; status 1, the lowest physical categorisation before death. Ms Hart was taken to hospital, and emergency brain surgery was undertaken in an unsuccessful attempt to save her life.

[20] Police and ambulance personnel who spoke to you at the property described you as being “very calm”, and appearing “not too bothered about what was happening in the house”. You never enquired for Ms Hart’s well-being, even after being told her condition could be life-threatening. Throughout your police interview, your primary concern was to explain how you were affected by your relationship with Ms Hart.

[21] As both counsel have said, we know little about your assault of Ms Hart itself. As trial judge, it is my task to flesh out the factual particulars of the charge in a manner not inconsistent with the jury’s verdict.² Implicit in that verdict is you intentionally punched or hit Ms Hart’s head.

[22] The assault took place in the privacy of your own home, without any witnesses. The nature of the assault, and the immediate circumstances in which it took place, are not matters on which I can make clear factual findings. I cannot be sure, for instance,

_{of exactly when the assault occurred; over what period it was delivered; the level of}

² Edwardson v R [2017] NZCA 618 at [105]- [107].

violence you employed; the degree to which your actions were either premeditated or provoked; or your awareness of the seriousness of Ms Hart’s condition until the police told you it could be life-threatening.

[23] We do know this, however: on or about Sunday, 12 February 2017, Ms Hart died from head injuries resulting from your assault on her. The blunt force trauma evident to her skull and brain may have been caused by you hitting her head, or by your hitting her causing her to fall and also hit her head against some other surface, or perhaps by a combination of the two. The pathologist called by the Crown described Ms Hart’s death as “inevitable”, from the damage sustained to those parts of her brain controlling her heart and lungs.

Victim impact statements

[24] As you have heard, Ms Hart’s daughters, Hannah Hart and Amber Roper, have given victim impact statements, describing the emotional distress (including nightmares and panic attacks) they have experienced in the aftermath of their mother’s death. Both daughters emphasise those devastating effects not only for themselves, and the guilt they feel for not intervening earlier, but also for the next generation of their families, who will be without their grandmother. The daughters describe their mother, before her alcoholism, as “a happy good humoured little lady with a fantastic sense of humour”, and “fastidious, hard working, stubborn and proud”. They describe you as having isolated Ms Hart from them.

[25] Ms Hart’s mother and stepfather, Beverley and Len, and her brother and her niece, Brendon and Arabella, jointly report their anger at your assault on Ms Hart, and their grief for her consequent death. They explain their assistance, a year before

Ms Hart’s death, with her recovery from malnourishment and alcohol abuse, only to have her return, over their protests, to you. And they outline their anxiety in anticipation of and from your trial, necessitated by your ‘not guilty’ plea.

Approach to sentencing

[26] Mr Everett, I approach your sentencing in two steps.³ With reference to relevant cases, I first set a starting point for your sentence to take account of the facts of your offending. Then I consider whether to adjust it up or down in light of your personal circumstances.

[27] Throughout this process, I have regard to all the purposes and principles of sentencing contained in ss 7 and 8 of the Sentencing Act 2002.

[28] I must impose a sentence to hold you accountable for your offending and to encourage you to feel a sense of responsibility for the harm you have caused. The sentence should denounce your conduct, and deter others from committing the same or similar offences. I should protect the community from you.

[29] I must also take account of the gravity and seriousness of your offending, the effect of your offending on your victims, the need for consistency with appropriate sentencing levels, and the need to impose the least restrictive sentence that is appropriate in the circumstances.

Starting point

[30] As I said earlier, the Crown submits a starting point of seven to eight years’ imprisonment is appropriate. Your counsel has recommended no more than seven years.

[31] The preliminary issue to resolve is the proper methodology for setting the starting point.

[32] There is no specific tariff case for manslaughter. That is because the circumstances are so variable and the appropriate sentence will vary considerably

_{between different manslaughter cases.}⁴ _{In R v Leuta, the Court of Appeal said:}⁵

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

4. R v Edwards [2005] NZCA 70; [2005] 2 NZLR 709 (CA) at [14] citing R v Leuta [2001] NZCA 283; [2002] 1 NZLR 215 (CA) at [49]- [59].

⁵ R v Leuta, above n 4, at [62].

It does not follow that where death results from a violent act the culpability of the offender is set higher than that of an offender who intentionally inflicts grievous bodily harm. In manslaughter, the unlawful act, even if violence, may be comparatively minor.

_{—the Taueki methodology}

[33] Nonetheless, the Court of Appeal cautiously endorses judges looking to Taueki

– the tariff case for wounding with intent to cause grievous bodily harm⁶ – for guidance in some circumstances.⁷ This methodology involves the Court locating the offending within the prescribed Taueki bands, and then applying an uplift to recognise, in manslaughter cases, a life has been taken. Where applied, best practice is to use the Taueki methodology as a means of cross-checking the sentence reached through a comparative analysis of relevant cases.⁸

[34] The Taueki methodology is only considered appropriate for cases of manslaughter involving serious violence: that is, where the offender clearly intended to inflict serious injury, or where serious injury (if not death) was a foreseeable consequence. It is not appropriate where manslaughter “involved moderate or even minor personal culpability on the offender’s part”.⁹ This reluctance to apply Taueki more broadly reflects an awareness that an assault causing death will not invariably involve a level of culpability greater than the offence of wounding with intent to cause grievous bodily harm (for which the maximum sentence is 14 years imprisonment).¹⁰

[35] The Crown submits your offending does not involve “extreme violence”, so an evaluation against Taueki is inappropriate. Your counsel has the same concern, although she applies Taueki in reaching the recommended starting point.

[36] The Crown is right not to rely on Taueki, although ‘extreme’ violence is not the legal threshold. Without better evidence of the precise nature of your assault on

Ms Hart, your assault in this case is not “serious violence”, as that phrase is defined

_{by law. “Single punch” cases tend not to meet that threshold (unless the assault is}

⁶ Crimes Act, s 188.

⁷ R v Taueki, above n 3.

⁸ R v Tai [2010] NZCA 598 at [12]; R v Ioata [2012] NZHC 3389 at [19].

⁹ R v Jamieson [2009] NZCA 598 at [34]; R v Ioata (HC), above n 8, at [19].

¹⁰ Turi v R [2014] NZCA 254 at [17].

“unusually forceful”).¹¹ While you were forcefully violent against Ms Hart, it was likely less ‘serious’ than the violence in Turi v R, where the offender inflicted repeated blows to the victim’s head and neck. And in Turi, the Court of Appeal considered use of the Taueki methodology inappropriate.¹²

[37] I turn, therefore, to the conventional method of determining the appropriate starting point by reference to comparable cases.

—aggravating factors of your offending

[38] Although the Taueki methodology is inappropriate, the case nonetheless is helpful in identifying aggravating factors, as your counsel recognises.

[39] There are three aggravating features of your offending, Mr Everett, expressly mentioned in the Taueki decision:¹³

(a) first, the seriousness of the injury. You took Ms Hart’s life.

Manslaughter is one of the most serious crimes in our criminal justice system, which is why it has a maximum penalty of life imprisonment;

(b) second, you attacked Ms Hart’s head. Attacks to the head are recognised as especially serious and troubling, the risks to the victim being considerably graver. That said, the Crown goes too far in suggesting that your attack to the head is equivalent to offending involving the use of a weapon. The text from Taueki on which the Crown relies for that submission explicitly restricts this observation to attacks constituting “severe beating[s]”; and

(c) third, you attacked Ms Hart while she was defenceless and vulnerable.

Ms Hart was in a position of some vulnerability in your relationship with her. You verbally and physically abused Ms Hart, who responded

_{at least to the verbal abuse in kind. Ms Hart was physically smaller and}

¹¹ Iota v R [2013] NZCA 235 at [25], and [30]-[32].

¹² Turi v R, above n 10, at [18].

¹³ R v Taueki, above n 3, at [31](c), (e), and (i).

weaker than you. She was often incapacitated because of her alcoholism, and reliant on you for food supplies, meals and other care.

[40] I also take as an aggravating factor your callous indifference to both the harm you caused Ms Hart, and the risk of her dying because of the injuries you inflicted on her.¹⁴ Those injuries, and the effect it had on her, should have been obvious to you.

Ms Travis immediately saw Ms Hart was in a desperate position. You showed no interest in responding to her perilous health condition at that time, and sought to delay Ms Travis from obtaining it. Ms Hart’s condition was likely obvious to you at least when you arrived home from fishing, or possibly when you left that morning, or perhaps even the previous evening when Ms Hart went to bed.

[41] I see no mitigating factors of your offending. I repeat two of the Court’s observations in Taueki. The fact the violence occurred in a domestic context does not in any way reduce the seriousness of your offending. Nor does your habitual consumption of alcohol lessen your culpability.¹⁵ I am going to return to the issue of violence in a domestic context, later.

—comparable cases

[42] The Crown has referred me to three cases;¹⁶ your counsel to another four.¹⁷

There is some difficulty in comparing your offending with these cases, because we do not know the exact nature of your offending.

[43] Two of the cases can be set to one side. Both R v Sami and R v Proude involve abuses of power in the context of very vulnerable victims — assaults on a one year old child by their babysitter, and on an intellectually impaired woman by her caregiver. The level of vulnerability in these cases is in no way comparable to Ms Hart’s

_{vulnerability to you.}

¹⁴ Ferris-Bromley v R [2017] NZCA 115 at [11]; R v Kereopa [2016] NZHC 1664 at [15]; and R v

Taylor [2016] NZHC 649 at [54].

¹⁵ R v Taueki, above n 3, at [33](a) and (c).

¹⁶ R v Maposua CA131/04, 3 September 2004; R v Proude HC Auckland CRI-2008-092-001926, 25

May 2010; Te Pana v R [2014] NZCA 55.

17. Ioata v R¸ above n 11; R v Sami [2017] NZHC 3159; Turi v R, above n 10; R v Wright [2013] NZHC 863.

[44] Several of the cases refer to ‘one punch’ manslaughter cases. These are cases where the victim dies from a single ‘king hit’, whether from the immediate impact of the assault or from falling and hitting their head on the ground subsequently. A consistent line of authorities indicates such cases attract starting points of three and a half to four years’ imprisonment.¹⁸ But no two single punch manslaughter cases are the same; the focus of the inquiry is always the culpability of the defendant as assessed from the surrounding circumstances.¹⁹

[45] There is then a category of cases where the offender’s culpability is judged slightly higher than the ‘one punch’ manslaughter offenders. The remaining defence cases fall into this category, attracting starting points of five or five and a half years’ imprisonment:

(a) Katz J adopted a starting point of five years’ imprisonment in R v Wright for what she described as a “brutal assault”. The offender drove to the victim’s farm to physically confront the victim, kicking down the victim’s door on arrival. Mr Wright assaulted the victim for approximately 20 seconds, dragged him outside, then proceeded to punch him three or four times to the head while the victim was on his knees attempting to block the blows with his hands;

(b) the Court of Appeal upheld a starting point of five years’ imprisonment in Iota v R for a “king hit” punch to the head in circumstances where the offender had approached the victim unseen. The assault was described as unusually forceful and the victim vulnerable in that he had no opportunity to defend himself; and

(c) the marginally higher starting point of five and a half years’ imprisonment was adopted by the Court of Appeal in Turi v R. Mr Turi, visited a drug dealer with a fellow gang member, but their request for

_{methamphetamine was denied. After Mr Turi’s associate had already}

¹⁸ R v Wright, above n 17, at [23] citing R v O’Brien HC Auckland CRI-2009-004-11941, 29

September 2009 per Potter J at [23]; R v Bryenton HC Auckland CRI-2009-004-3080, 7 April

2009 per Miller J at [13]; R v Carmichael HC Tauranga CRI-2007-070-2603, 6 September 2007 per Heath J at [34]; R v Efeso HC Auckland CRI-2008-092-7972, 24 October 2008 per Rodney Hansen J at [28].

¹⁹ R v Ioata, above n 8, at [21].

punched the victim, Mr Turi proceeded to inflict numerous blows to the head and neck. The resulting injuries were not in themselves fatal, but the shock of the assault was a substantial and contributing cause of the ensuing heart attack from which the victim died.

[46] Your level of culpability for the assault in itself, at its highest, is similar to those found in these three cases put forward by your counsel. The level of violence in those cases is likely more serious than your violence resulting in Ms Hart’s death. Without better evidence, it is unsafe to establish your violence much higher than the single punch manslaughter cases.

[47] An analysis of the Crown cases strengthens this assessment of your culpability.

[48] In R v Maposua, the Court of Appeal substituted a starting point of five years’ imprisonment. The Court noted six years’ imprisonment or even higher could have been justified but for the fact the Court was constrained by the principles governing appeals by the Solicitor-General. A higher starting point would have been appropriate given the distinguishing additional feature of the use of the weapon in that case.

Mr Maposua, the victim’s supervisor at work, grew frustrated at the victim’s behaviour one day. He picked up a heavy broom, swung it above his head, and struck a blow to the top of the victim’s head with such force that the head of the broom came off on impact, and the victim immediately fell unconscious to the ground. He was taken to hospital and underwent emergency surgery but died two days later.

[49] The Crown also referred me to R v Te Pana, in which the Court of Appeal upheld a starting point of eight years. Mr Te Pana’s victim was his 61-year-old stepfather. While bailed to his mother and stepfather’s home, Mr Te Pana became angry at the victim during a family gathering involving heavy drinking. He stood up and punched the victim several times to the head and face with his fists, until the wider family intervened to stop the fight. The victim was left with a black eye and cut lip, but the following day family members discovered him unconscious on his bed, with vomit and bile throughout it. He was taken to hospital by ambulance and received emergency surgery. But he soon died of a significant bleed in his brain consistent with blunt force trauma from an assault. The violence in that case was markedly more

serious than that of the assault causing Ms Hart’s death. The Court of Appeal was at pains to distinguish the level of violence in that case, from “single punch cases”, and favourably quoted Mr Te Pana’s aunt’s evidence that the assault amounted to a “beating”.²⁰

[50] Again, the higher starting point in that case is, in my view, attributable to the following:

(a) the Court of Appeal indicated eight years at the upper end of the available range, noting that “another judge may have adopted a starting point towards seven years”. In fact, eight years was only in range because, where Woolford J had applied an uplift of six months for personal aggravating features, the Court held that a 12-18 months uplift would have been appropriate;²¹ and

(b) Woolford J’s starting point was higher than it otherwise would have been because His Honour expressly adjusted the starting point to send a deterrent message in response to growing levels of violence in the Northland region.²²

[51] In summary, with those qualifications in mind, I do not think an analogy with Te Pana justifies pushing up your starting point any higher. In light of those authorities, the appropriate starting point could not be more than five and a half years’ imprisonment.

[52] However, your culpability is heightened by Ms Hart’s reliance on you in her domestic situation, her greater vulnerability given her state of health and well-being, and your callous indifference to her perilous condition. I note in particular the domestic violence context for your offending. The Court of Appeal accepts deterrence, denunciation, and protection of the community are among the purposes of sentencing served by a firm response to the serious problem of domestic violence in New

_Zealand.²³ _{Eight and nine year starting points were warranted by serious violence in}

²⁰ Te Pana v R, above n 16, at [10].

²¹ At [13]-[14].

²² R v Tepana [2013] NZHC 1592 at [42].

²³ R v Kengike [2008] NZCA 32 at [23] and [29].

domestic relationships resulting in the death of the offenders’ partners. In those cases, the particular violent incident giving rise to the victim’s death was a “sustained” attack.

[53] Although your pre-sentence report records your advice to the probation officer of only two police call-outs for domestic violence, the police opposition to your bail identifies eight previous domestic violence incidents between you and Ms Hart. Most of those call outs were initiated by third parties concerned for Ms Hart’s well-being, Ms Hart – on some occasions, despite observable injury – refusing to co-operate with police, or to make a complaint against you. On the last recorded incident, Ms Hart acknowledged you were repeatedly violent to her. She said she loved you and thought it was her fault you assaulted her. On an earlier occasion, when Ms Hart had herself called the police to report your assault of her, on the police’s arrival, she said she had lied about the assault, but said you got nasty when you got drunk.

[54] These records illustrate a clear pattern, fuelled by alcohol, of your infliction of violence on your domestic partner, Ms Hart, culminating in her death by your assault. While the particular violent incident resulting in Ms Hart’s death was singular rather than sustained, that distinction should not be overstated. The distinction does not warrant a material reduction in starting point from those established in the ‘sustained violence’ cases, in the context of domestic violence. The Law Commission recently observed:²⁴

Essential to contemporary understandings of the dynamics of family violence, and especially intimate partner violence, is an understanding of family violence as a pattern of ongoing harmful behaviour, with a cumulative and compounding effect on the victim. Viewed in isolation, incidents of family violence may appear “low-level”, however viewed as a part of a pattern of behaviour they may well identify an escalating spiral of violence, which can leave victims entrapped. It is often difficult for victims to seek help, as the use of coercive and controlling tactics by the abuser can leave them in social and financial isolation.

[55] For those aggravating reasons, I uplift the starting point for your offending to seven and a half years’ imprisonment.

²⁴ Law Commission Understanding Family Violence: Reforming the Criminal Law relating to

Homicide (NZLC R139, 2016) at [18] (internal citation omitted).

Personal circumstances

[56] Mr Everett, I now turn to consider your personal circumstances to see whether I should adjust that starting point up or down. Neither the Crown nor your counsel recommends any adjustment, and I accept that to be correct.

[57] There are no personal mitigating factors. Your probation officer provided the Court with advice for your sentencing. Her report observes you do not accept responsibility for your offending; neither do you display any remorse. Consistently with your police interview, your principal concern was yourself.

[58] The probation officer’s pre-sentence report identifies your offending-related factors to be your poor relationship and dispute resolution skills, along with your propensity for violence and alcohol abuse. It recommends you participate in a Medium Intensity Rehabilitation Programme in a custodial environment. The programme seeks to alter thoughts, attitudes, and behaviours that led to the offending, and assist offenders to develop strategies for maintaining positive change. You are not eligible for such rehabilitation programmes unless you accept responsibility for your offending.

[59] As to personal aggravating factors, you have ten previous convictions, nine for driving offences, either with excess breath alcohol or while subsequently disqualified (and with excess blood alcohol), and one charge of wilful damage. And you have been subject to community work for this offending on three occasions, most recently in

2015. This record disqualifies you from any credit for good character. Although it is a close-run thing, given the common factor of alcohol consumption, I also do not treat your record as an aggravating factor.

Minimum period of imprisonment

[60] Because I will be sentencing you to more than two years’ imprisonment for manslaughter, I am entitled under s 86 of the Sentencing Act 2002 to consider whether to order you to serve a minimum period of imprisonment before you are eligible for release on parole. I may order that you serve a minimum period longer than the one third period which normally applies but no more than two thirds. In your case, a

minimum period would be longer than two years and six months’, but no longer than five years’, imprisonment.

[61] A minimum period may be imposed if I am satisfied that it is necessary for all or any of the following purposes: for holding you accountable; denouncing your conduct; deterring you or others from similar offending; and protecting the community from you. The purpose of s 86 is to confer a degree of reality on the sentence and the outcome, where the offending is so serious that release after one-third of the sentence will plainly constitute an insufficient response in the eyes of the community.²⁵ Where the offending for which the offender is being sentenced is part of a pattern of sustained offending, minimum periods of imprisonment exceeding half the sentence are not uncommon.²⁶

[62] For these reasons, minimum periods of imprisonment may appropriately be deployed in sentencing on individual violent offending, to recognise the incident’s place in a longer and often escalating pattern of domestic violence. But, unless the pattern is itself of established offending, the higher end of any minimum period may not be accessible.

[63] I am satisfied here, your release after two years and six months’ imprisonment would be insufficient to punish, denounce, deter, and protect in the domestic violence context of your offending. I view the unusual callousness of your offending against a vulnerable victim, and your denial of responsibility, also to render such early release insufficient for those purposes.²⁷

[64] I have decided you should remain in prison until you have served at least half the sentence I intend to impose – in other words, at least three years and nine months in prison.

Orders

_{[65] Mr Everett, please stand.}

²⁵ R v Gordon [2009] NZCA 145 at [15].

²⁶ R v Pomare [2015] NZCA 191 at [15].

²⁷ R v Taylor [2016] NZHC 649 at [81]- [82].

[66] For the manslaughter of Leeanne Hart, I sentence you to a term of imprisonment of seven years and six months, with a minimum period of imprisonment of three years and nine months.

[67] Mr Everett, please stand down.

—Jagose J