R v Puna [2018] NZHC 79 (8 February 2018)

Last Updated: 21 February 2018

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2017-020-572 [2018] NZHC 79

THE QUEEN

v

_{JOHNNIE PUNA}

Appearances:	S B Manning and M M Mitchell for the Crown E J Forster for the Defendant
Sentencing:	8 February 2018

_{SENTENCING OF CULL J}

[1] Mr Puna, you appear for sentence today having been found guilty by a jury of murder, I now enter the conviction.¹ At the same time, I must give you a final three- strikes warning, which I do at the conclusion of this sentencing. While I read my sentencing notes Mr Puna you may sit down and I will ask you to stand again at the end when I formally sentence you.

[2] I should also add that you have pleaded guilty to two charges of theft under

$500, those convictions too are entered.² The maximum penalty for murder is life imprisonment and that is the sentence I intend to impose upon you because, as all agree

_{here, there is no basis to do otherwise in our legislation.}

¹ Crimes Act 1961, ss 167(1)(a), 167(1)(b) and 172(1).

2. Sections 219(1)(a) and 223(d). Maximum penalty is three months’ imprisonment where the value of the property stolen does not exceed $500.

R v PUNA [2018] NZHC 79 [8 February 2018]

[3] However, your case is complicated as you are subject to what is known as the “three strikes” legislation. This legislation outlines the consequences that occur if a person commits more than one offence involving serious violence. You are subject to this regime because in 2016 you were convicted of aggravated robbery and given a first-strike warning. The facts there as Mr Manning quite properly acknowledged are a far cry from these, but I will return to those facts later in my sentencing notes. You were sentenced to nine months’ community supervision and six months’ community detention.

[4] You now face a conviction for murder. The effect of the three strikes legislation is that you must now be sentenced to life imprisonment without parole unless I am satisfied it would be manifestly unjust to impose this.³ After careful consideration, I have decided it would be manifestly unjust to impose a whole-of-life sentence on you. Both the Crown and your counsel agree with this course and I will deal with the reasons shortly.

[5] Instead, I will impose a sentence of life imprisonment with a long minimum non-parole period. The legislation requires me to impose a sentence with a minimum non-parole period of at least 10 years.⁴

[6] In sentencing you, I shall explain:

(a) your offending;

(b) your personal circumstances;

(c) the application of the three strikes regime to your case;

(d) what the appropriate sentence for you would be under the standard legislation for murder sentences; and

³ Sentencing Act 2002, s 86E.

⁴ Sections 86E(4)(b) and 103.

(e) why it would be manifestly unjust to impose life imprisonment without parole on you.

Your offending

[7] On 5 February 2017, you travelled to Haumoana with several friends. You spent the afternoon in and around the beach with this group. Between 6 pm and 7 pm that evening, your group came into contact with the victim, Mr Beale. You began drinking together.

[8] Later that evening, and after you left the beach to pick up another friend and more alcohol, the victim came into contact again with your group. The victim told you about his “home brew”, which he called vodka. This was methylated spirits distilled through a carbon filter several times. You went with him to his house to get this and while at the victim’s house, you consumed some of this home brew and took his cellphone, valued at approximately $120.

[9] Between 10 pm and midnight, you and the victim left the house and began walking back to the beach. As you were walking, one or both of you tripped, causing him to fall on you. As a result, you sustained a cut or graze to your face. You both continued walking to the site, but you were agitated by the fall and began arguing with him.

[10] Upon arriving at the site with your friends, you started to attack Mr Beale, knocking him to the ground. As he tried to get to his feet, you kicked him in the head. Over the next 40 minutes to an hour,⁵ you kicked him a number of times. Each time the kick was delivered as he tried to get up. Mr Beale was knocked out several times. He grew steadily weaker and his injuries more severe. You also punched him multiple times to the head. He was left motionless and unconscious on the ground, with a bloodied and swollen face. You also acknowledged that you urinated on Mr Beale while he was unconscious.

[11] You and your friends remained in the area, continuing to listen to music and drink. At about midnight, a member of the public walked close to the site where your group were. The person asked you what was wrong with the victim and you told him the victim was drunk. When the witness went to check on the victim, you said to leave him alone as he was drunk. You made similar comments to three other individuals later that evening.

[12] Sometime around 3 am, your group left the victim and the area. At this time, you also took the victim’s vape. At about 6 am on 6 February 2017, the victim was found in the same position by members of the public and emergency services were called. The victim later died as a result of the injuries he sustained.

[13] The victim impact statements have been provided by Mr Beale’s mother and his sister. They both describe how traumatic Mr Beale’s death has been for their family. They found the details of the attack disturbing, as it was unprovoked and involved Mr Beale being assaulted numerous times, as he tried to defend himself.

Mr Beale’s two teenage sons have lost their father too early.

Your personal circumstances

[14] Mr Puna you are now 20 years old and were 19 at the time you committed this offending. You affiliate to Takitimu Waka and your iwi are Ngati Taane ki Rarotonga and Ngati Kahungunu.

[15] You have six previous convictions, including three violent related offences, but have never been sentenced to a term of home detention or imprisonment before. One of these convictions is, as we know, for aggravated robbery, which is the first strike warning you received in 2016, to which I referred earlier. Prior to the present convictions, your offending to date has been relatively minor.

[16] You have previously completed the START programme in Taranaki. One of the Senior Practitioners from that programme described you as a natural, positive caring leader in your group, who consciously improved your behaviour throughout your time on the programme. The practitioner observes that you would benefit from

further alcohol and counselling support services to address your anger issues and identify coping mechanisms for you.

[17] I have received three reports prior to sentencing today: a pre-sentence report from Corrections, a psychiatric report completed by Dr Justin Barry-Walsh last year and a cultural report from Matau Cultural Annotators.⁶

Pre-sentence report

[18] Your pre-sentence report states that you are at high risk of reoffending and at an extremely high risk of causing harm to others. The report identifies that there is no doubt there has been an escalation in the seriousness of your offending. Those close to you all agreed that they would not have anticipated your committing such a crime, although there were signs of concern.

[19] Alcohol use is identified as a factor in your offending, and there is a correlation between alcohol and your use of violence. You told the report writer that because you had been drinking you were not aware that your behaviour towards the victim had got so out of control. The report recommends you should complete an intensive drug and alcohol treatment programme in prison and it would be beneficial for you to receive treatment through a culturally appropriate provider to support your rehabilitation.

Psychiatric report

[20] Prior to trial, Dr Barry-Walsh completed a psychiatric report. He did not detect you had any signs of mental illness, although he identified your significant use of alcohol and the correlation between your alcohol consumption and violence.

[21] He also confirmed your exposure to violence as a child and the bullying you faced at school. You have had on-going problems with fighting and anger, particularly if others provoke you. You were excluded from high school for fighting and left without qualifications. Dr Barry-Walsh observed that you display a tendency to avoid discussing highly emotive material, which was seen as a reflection of the way you deal with trauma and adverse events.

[22] In terms of previous rehabilitative efforts, Dr Barry-Walsh also recorded that you engaged well in a START programme, which you completed in May 2015. You also benefited from six counselling sessions at this time and received positive reports from the three businesses where you had work experience. Dr Barry-Walsh considered these were indicators that you have a capacity to engage in programmatic activity.

[23] Dr Barry-Walsh also reported that you appeared remorseful about the current offending and did not think you had hurt the victim that badly. When you learnt of

Mr Beale’s death, you felt very bad and were tearful. You told Dr Barry-Walsh that you try to focus on the positives, namely your ability to cease using drugs and alcohol and work on your anger. You stated you are willing to have further assessment and input to deal with these issues. He considered you display some insight into your difficulties and that you accept the need to work on your difficulties. Further, he considered it is possible the extent of your remorse may be underestimated because of your tendency to avoid uncomfortable and emotive material.

[24] He considered that as you are young, you would benefit from intervention to address your personality-related difficulties which contributed to this offending. These include further assessment and intensive treatment to assist you to deal with your anger, violence and substance use. Because of your youth and your limited interventions to date, he observed, that with input, you may do well.

Cultural report

[25] Mr Puna, a cultural report was also prepared. It provides an in-depth insight into the social and cultural factors influencing you and your offending.

[26] The report identifies a number of factors that have impacted on your development and inhibited your normal developmental stages, including your mother’s pre-natal use of alcohol and drugs, low socio-economic status, poor nutrition, minimal family structures, domestic violence, neglect, a lack of behavioural and social boundaries, amongst others. The report suggests that your alcohol use has lowered your brain maturity and behavioural control, as akin to someone four or five years younger than you.

[27] The report refers to a number of factors and social dynamics that have played a role in alienating, criminalising and institutionalising Māori generally, which have also impacted on you. These factors include Māori urbanisation, the emergence of the urban Māori gang, systemic unconscious bias, structural reform and high unemployment.

[28] The report identifies that your life can be broadly contextualised in a social construct that often positions young Māori from low socio-economic areas as criminal by definition. Beyond this social construct, however, the report considers it is clear you have been exposed to a “rugged lifestyle”, a generally dysfunctional family experience and that you lack a strong coherent sense of positive Māori identity that is characteristic of your situation.

[29] This report describes the regret and remorse you have expressed about the consequences of your actions. It is also observed that you are ready to accept help and would benefit from rehabilitation and intervention, including programmes in a Māori Culture Unit.

The application of the three strikes regime

[30] Mr Puna, as I have said, you are now subject to the three strikes legislation. Given its significance, I want to first explain how this legislation applies in your case.

[31] Where an offender commits murder as a stage-two offence, as you have, the court must impose life imprisonment and this is the sentence that must be imposed in your case.⁷ This is to be served without parole unless this is manifestly unjust.⁸ If this is manifestly unjust, as I have determined it is in your case, the legislation requires me to impose a sentence of life imprisonment with a minimum non-parole period of at

_{least 10 years.}⁹

⁷ Sentencing Act 2002, ss 102(3) and 86E.

⁸ Section 86E(2).

⁹ Sections 86E(4)(b) and 103.

[32] The Court of Appeal has outlined the appropriate methodology for me to take in sentencing you:¹⁰

(a) I must, first, recognise that the starting point for a sentence of a stage- two murder is presumed to be life imprisonment without parole;

(b) second, I must determine what the appropriate sentence would be in terms of the standard application of the sections in the Sentencing Act

2002 to which both counsel have referred and that is ss 102–104; and

(c) finally, I must determine whether it would be manifestly unjust and grossly disproportionate, given your circumstances and the circumstances of your offending, for you to face a whole-of-life sentence. This is done as an overall assessment at the end.

[33] I will now apply this approach to your situation. The starting point, as I have said, is a sentence of life imprisonment without parole.

Appropriate sentence under ss 102–104

[34] However, second, I must determine what the appropriate sentence for you would be if I applied the standard provisions of the Sentencing Act.¹¹

[35] I must impose a sentence of life imprisonment,¹² with a minimum period of imprisonment of at least 10 years, that is provided in the statute.¹³ This is so unless the case is one where the law says the minimum period of imprisonment must be at least 17 years.¹⁴ The central issue, as both counsel have addressed, is what is the length of any minimum term of imprisonment you must serve.

[36] The cases which attract a 17-year minimum term of imprisonment include those where:¹⁵

¹⁰ R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [109]–[110].

¹¹ Sentencing Act 2002, ss 102–104.

¹² Sections 102(3) and 86E(2).

¹³ Sections 103 and 86E(4)(b).

¹⁴ Section 104.

¹⁵ Section 104(e) and (g).

(a) the murder was committed with a high degree of brutality, cruelty, depravity or callousness, as you have heard both your counsel and

Mr Manning refer to; or

(b) secondly, the victim was particularly vulnerable because of their age, health or because of any other factor.

[37] In these types of cases, the law requires a 17-year minimum term must be imposed unless it would be manifestly unjust to do so.

[38] In my assessment, these two factors were clearly present in your case:

(a) The murder of Mr Beale involved a high level of brutality and callousness and I have listened carefully to your counsel who stresses that this was never an intention of yours at the outset and nor was there any preparation for such a crime. However, you repeatedly struck

Mr Beale as he tried to get up over a prolonged period of between 40 minutes and an hour. You used extreme violence, including punching and kicking the victim in the head. You prevented members of the public from helping the victim, by saying he had just drunk too much and he would be fine. You gave the impression your group were looking after the victim. You then left the victim alone despite his unconscious state, demonstrating serious callousness.

(b) Secondly, Mr Beale was particularly vulnerable because once you had first struck him, he was lying on the ground in a semi-conscious state and was unable to defend himself. I cannot accept your counsel’s submission that the victim could defend himself or extricate himself from the situation by just lying on the ground.

[39] I must therefore start on the basis that I am required to impose at least a 17- year minimum period of imprisonment on you, unless it would be manifestly unjust to do so. As you have heard, the Crown submits a 17-year minimum term is appropriate in this case. Your counsel disagrees and submits 12 years is more than sufficient.

[40] After careful consideration, I have determined it would be manifestly unjust to impose a 17-year minimum term on you. I have compared your situation to other offenders in a number of cases.¹⁶ Those cases have been referred to by your counsel and the counsel for the prosecution, both in their written submissions and touched on today. Those cases form part of my consideration. I have decided it would be manifestly unjust to impose a minimum term of 17 years on you because of the following reasons.

Your age

[41] Firstly, your age, you are 20 years old. You were 19 at the time of the offending. The Court of Appeal has confirmed that youth is relevant to sentencing in the following ways:¹⁷

(a) there are age related neurological differences between young people and adults. Young people are not as mature and do not respond in the same way that a more mature adult will;

(b) secondly, the effect, as your counsel has said, of imprisonment on young people, including the fact that long sentences can be crushing; and

(c) thirdly, young people have the potential and greater capacity for rehabilitation with appropriate direction.

[42] In your case, the reports provided to the Court indicate you have suffered developmental delays as a result of your upbringing and you lack the maturity of your age. Any long sentence of imprisonment, in my view, will negatively affect your life

_{at this young age.}

¹⁶ R v Gosnell [2013] NZHC 1313; R v Lavemai [2014] NZHC 797; R v Rakuraku [2014] NZHC

3270; R v Korewha [2015] NZHC 308; R v Rewha-Te Wara HC Hamilton CRI-2010-019-5681,

30 September 2011; R v Lo [2014] NZHC 1117; R v Houma [2008] NZCA 512; R v Slade [2005]

2 NZLR 526 (CA); R v Holl [2013] NZHC 2932; R v Ellery [2013] NZHC 2609; and R v Churchis

[2014] NZHC 2257.

¹⁷ Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].

Your regret and remorse

[43] In stating that, you will have heard my asking Mr Manning for his response to that and he immediately referred of course, to the pre-sentence report. It differs from the other reports that are before the Court. You have demonstrated, in my view, your regret and remorse about your actions in a number of ways:

(a) most importantly for me was the way you conducted yourself during your police interview and your acknowledgement about your actions so soon after the event;

(b) secondly, the way you acted at trial – you were not “staunch” but were remorseful about what you had done and appeared so;

(c) thirdly, I also observed that you showed shame and remorse, instead of any camaraderie or bravado; and

(d) lastly, you have expressed your remorse to your family, particularly your grandmother who has made this known to the Court.

[44] It was clear not only to Dr Barry-Walsh but to those of us who watched the video that this did affect you deeply. Dr Barry-Walsh has confirmed how bad you have felt about Mr Beale’s death and how tearful you were after the event. As I have said, he considered it is possible the extent of your remorse may be underestimated because of your tendency to avoid uncomfortable and emotive material.

Your intoxication

[45] The third matter that I consider is one of those factors to be taken into account is your intoxication. It is never an excuse but as I have already pointed out, it is clear you have problems with alcohol-fuelled violence. On the night you offended, you had consumed a considerable number of RTDs before consuming the victim’s barely filtered methylated spirits. It was clear you were affected by alcohol and were heavily intoxicated. While this was no excuse for your offending, this gives an indication that alcohol clearly played a role in your reactions that night and is relevant to the

circumstances of your offending. I must also acknowledge that Mr Beale was equally intoxicated. This offending grew out of alcohol-fuelled socialising, albeit escalating to a seriousness, which none of your group predicted.

[46] Your history of alcohol-induced violence is evident. You have acknowledged this and on the reports I have are open to addressing these issues while you are in prison. It is positive that you have insight into this aspect of your offending and view your enforced abstinence as an opportunity.

Your cooperation with police

[47] I do understand what occurred prior to your speaking with the police and the circumstances surrounding that but I want to specifically recognise your cooperation with police after you committed the offence. You did not have to give a police interview. After speaking with your mother, you agreed to speak to the police and disclosed your actions, without any legal representation. You spoke openly, not in detail, but acknowledged your part in the offending and you did this before seeking any legal advice. I believe the way you dealt with this, is a credit to you and should be acknowledged in this sentencing.

[48] I want to turn then to the plea of not guilty. Although you did not plead guilty, I recognise you accepted your culpability from your actions at an early stage during that interview. Your case went to trial on the question of whether you had the necessary murderous intent, not on whether you committed acts of violence. The jury found you did have murderous intent but in the circumstances, I do not believe your lack of guilty plea should be taken as an adverse criticism of you, as you were entitled to have that tested.

Your prospects for rehabilitation

[49] You have positive prospects for rehabilitation. This has been commented on in all of the reports I have received and by the Senior Practitioner from the START programme you have previously participated in. You acknowledge that you need to address your anger, violence and alcohol use and you have demonstrated your willingness to do so. As you are young and have had limited interventions to date,

Dr Barry-Walsh observed that with input, you may do well. He also recorded that if you are provided with intensive treatment, it is likely you will decrease your prospects of reoffending.

[50] One of the purposes of sentencing is to assist in an offender’s rehabilitation and reintegration.¹⁸ I am stressing today, that you have an opportunity to rectify your shortcomings, you are young enough to acknowledge that and to do something about it. You have an opportunity to improve your chances of a successful reintegration into society when you are released. While you serve your sentence, I encourage you to access ongoing treatment to support you in your rehabilitation.

Overall assessment

[51] My overall impression and assessment is that the combination of these factors make it manifestly unjust for me to impose a minimum period of imprisonment of 17 years. The cases caution that personal circumstances of an offender would rarely displace the 17-year term.¹⁹ However, I consider the combined weight of the circumstances of your offending and the factors I have identified would make a 17- year non-parole period disproportionately severe for a person of your age.²⁰ Yours is a case that narrowly falls outside the scope of the legislative policy that the most serious murders are worthy of a lengthy term of imprisonment.

[52] In my assessment, the appropriate minimum period of imprisonment in your case is 14 years. I consider it would be manifestly unjust to impose 17.

Life imprisonment without parole is manifestly unjust

[53] I come lastly to my assessment of life imprisonment without parole and whether that is unjust. The cases require me to complete an overall assessment of the consequences of a life sentence without parole, the circumstances of this offending and the first-strike offending, your circumstances and the principles of sentencing.²¹ I

_{will now deal briefly with each.}

¹⁸ Sentencing Act 2002, s 7(1)(h).

¹⁹ R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA) at [66]; and Malik v R [2015] NZCA 597 at [32].

²⁰ Having regard to the principle identified in s 8(h) of the Sentencing Act 2002.

²¹ Harrison, above n 10, at [107]–[108] and [110].

[54] The final step is to consider whether it would be grossly disproportionate, given your personal circumstances and the criminality of your offending, to be subject to a whole-of-life sentence to be served without parole.

[55] As I have said earlier, Mr Puna, it is my assessment that a whole-of-life sentence is manifestly unjust in your case. The Crown conceded this point for the reasons Mr Manning set out to the Court and your counsel also agrees.

The consequences of a life sentence without parole for you

[56] Based on available statistical information as your counsel has made clear, you would serve a sentence of 53 years, if a life sentence without parole were imposed and that is based on the life expectancy tables that have been done for people in your category. That is well in excess of sentences for the worst offending of any kind and more than two to three times the usual sentence applicable to your current offending. There is no question that your offending was horrific and deserves a lengthy sentence. However, a life sentence without parole would be a grossly disproportionate outcome. A minimum period of imprisonment of 14 years in my view, will more than adequately hold you to account for the harm done to the victim, Mr Beale, denounce your conduct and promote in you a sense of responsibility for the harm you have caused.²²

The circumstances of this offending and the first-strike offending

[57] One further factor I must now consider, is the circumstances in each of the first and second strike offences.²³

[58] I have already described the circumstances of your current offending, I now turn to the offending for which you received a first strike warning.

[59] Mr Manning has acknowledged very properly from the Crown that the minor nature of your first strike offence could well have had a different outcome. It is also a relevant factor in my assessment, which I consider makes a whole-of-life sentence

disproportionately excessive.²⁴ Although your first strike offence was a charge of aggravated robbery, the summary of facts from that conviction demonstrate that it was minor: you stole a speaker box and when challenged by the victim you kicked him in the back. You received a sentence of community supervision and community detention, which reflected the relatively minor nature of the offending.

[60] Further, your criminal history more generally is not supportive of a whole of life sentence. You have six previous convictions, three of which are for violence, yet, you have received relatively minor sentences for each of those. However, these are minor offences that pale in comparison to your current offending and that is what I have had to assess and balance.

Your circumstances

[61] As I have discussed, you have demonstrated a positive capacity to engage in rehabilitation. Your violence is a learned behaviour from your upbringing and it is capable of remedy. You have the support of your grandmother, who has written to the Court indicating that you have demonstrated you are willing to make the changes needed and there must still be a prospect for you to do so. There is no sound reason why, with the appropriate support, you would not rehabilitate and re-integrate safely back into the community.

Purposes and principles of sentencing

[62] The purpose and principles of sentencing clearly suggest a whole-of-life sentence would be manifestly unjust in your case.²⁵ A whole-of-life sentence, in my view, is not required to hold you accountable, denounce your offending and deter others from committing the same offending in these circumstances. As I have said, a lengthy minimum period of imprisonment, which you are receiving today, is sufficient to meet those purposes and to acknowledge the gravity of your offending. From the information I have received, your rehabilitation and reintegration will be greatly advanced if you are provided with the prospect of release. Otherwise there is no incentive for you to address the causes of your offending.

[63] Thus, imposing a whole-of-life sentence would not only be disproportionately severe, but I consider would be directly contrary to the principle of imposing the least restrictive outcome that is appropriate in the circumstances.

Sentence

[64] Mr Puna please stand.

[65] On the charge of murder, you are sentenced to life imprisonment. You must serve a minimum period of imprisonment of 14 years before you are eligible to apply for parole.

[66] On the two charges of theft, you are sentenced to one month imprisonment each, to be served concurrently.

Third strike warning

[67] As a final warning was not given at the time of the return of the jury verdict, now that your conviction is entered, I am required to give you that warning.

[68] Given your conviction for murder, you are subject to the “three strikes” law. This is now your final warning which will explain the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences which lists the “serious violence” offences.

[69] First, if you are convicted of any serious violent offence other than murder or manslaughter, you will be sentenced to the maximum term of imprisonment for each offence. That will be served without parole or early release unless to do so would be manifestly unjust.

[70] Secondly, if you are convicted of manslaughter committed after this warning, you will be sentenced to imprisonment for life. The Judge must order you to serve at least 20 years imprisonment unless the Judge considers it would be manifestly unjust to do so, in which case the Judge must order you to serve a minimum term of at least ten years imprisonment.

[71] Thirdly, if you are convicted of murder again after this warning then you must be sentenced to imprisonment for life. The Judge must also order you to serve the sentence without parole unless it would be manifestly unjust to do so. If the Judge finds it is manifestly unjust to do so, the Judge must impose a minimum period of imprisonment of at least 20 years unless that would be manifestly unjust in which case the Judge must sentence you to a different minimum period of imprisonment.

[72] Fourthly, if you are sentenced to preventive detention, you must serve the maximum term of imprisonment of the most serious offence of which you are convicted unless a Judge considers that would be manifestly unjust.

[73] A written notice setting out those consequences will be given to you before you leave today.

[74] You may stand down.

Cull J

Solicitors:

Elvidge & Partners

Crown Solicitor, Napier