IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY CRI [2017] NZHC 1488 THE QUEEN HELEN JOYCE ROSE SENTENCING NOTES OF THOMAS J

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY CRI [2017] NZHC 1488 THE QUEEN v HELEN JOYCE ROSE Hearing: 30 June 2017 Counsel: J M Marinovich for Crown P M Keegan for Defendant Sentence: 30 June 2017 SENTENCING NOTES OF THOMAS J Introduction [1] Ms Rose, you appear for sentence today having pleaded guilty on 26 May to the manslaughter of Rex Karaitiana. The maximum penalty is life imprisonment. 1 [2] In sentencing you I will first outline the summary of facts to which you pleaded guilty. I will then turn to the victim impact statements, your personal circumstances and the pre-sentence report. I will set a starting point for the sentence I am going to impose before making adjustments for your personal circumstances and guilty plea. 1 Crimes Act 1961, ss 158, 160(2)(a), 171 and 177. R v ROSE [2017] NZHC 1488 [30 June 2017]

2 Facts [3] The deceased is your ex partner and was a patched member of Black Power. You had been in a relationship for approximately four years and resided together in Eltham. [4] At about 5.00 pm on Wednesday 1 June 2016 you and Mr Karaitiana were at your home. You had both been consuming alcohol. [5] An argument developed between the two of you over allowing Mr Karaitiana s son, also a member of Black Power, to be paroled to your address. [6] During the argument Mr Karaitiana became violent and punched you around your head and body causing bruising to your ribs, small cuts around your eye and a black eye. After he assaulted you, you sent a text message to an associate which read R U home if I need to come round. OMG I hate him so much. I swear if he touches me again I ll stab the cunt, I m ok he is just being a dick again. [7] The verbal argument continued. Mr Karaitiana sat down at a table but continued his verbal abuse and made statements to you such as you re gonna die bitch. You swore at him. [8] As Mr Karaitiana was sitting at the table and was turned away, you took out a small multifunction pocket knife from your pocket. He saw this and began laughing and said bring it on bitch. As Mr Karaitiana turned towards you and began to get up, you stabbed him with the knife in his upper back on his left side. [9] After you did this Mr Karaitiana stood up and again punched you about the head and face. He continued to threaten you. He said oh you are really gonna die you bitch before walking out of the room. [10] You fled the address and drove to Kaponga. You travelled to a friend s place and told her you had stabbed the victim. You also travelled to other friends and told them what you had done. You gave the knife to one of your friends and told him he

3 should take it as the police would want it. While with your friend you contacted Women s Refuge. [11] At about 7.15 pm Mr Karaitiana was found lying on the footpath near your address by a member of the public. The police located him at about 7.20 pm. He was observed to be intoxicated, holding his wrist and had grazes to his face. When questioned by the police he said he had fallen over. He declined an ambulance which had been called and asked to be taken to an associate s address. [12] The police took Mr Karaitiana to an address in Eltham. He was tended by an associate who placed a band-aid on what appeared to be a cut on his back. He also had a small cut on his wrist. Neither wound was bleeding. Mr Karaitiana said he did not want to go to hospital. Later that evening, his associate heard a commotion in the room he was sleeping in. He found Mr Karaitiana distressed and struggling to breathe. At that stage, he mumbled something about a stab. [13] An ambulance was called at pm. The first ambulance arrived and provided interim care. The second ambulance, crewed with an intensive care paramedic, did not arrive till one minute past 11 and left the address at pm. [14] During the transportation, Mr Karaitiana deteriorated. The intensive care paramedic did not recognise the deterioration. At about pm Mr Karaitiana went into cardiac arrest. A second intensive care paramedic met the ambulance and realised the seriousness of Mr Karaitiana s condition and tried to resuscitate him. [15] Mr Karaitiana arrived at the New Plymouth hospital at am on 2 June He was found to have a stab wound at the back of his left chest wall. That morning he was placed on life support. On 3 June 2016 Mr Karaitiana s life support was turned off. He died due to complications from the stab wound. [16] On 2 June 2016 you were located by the police and admitted stabbing Mr Karaitiana. In a subsequent interview with police, you admitted stabbing him using a pocket knife. You said he had punched you just below your left eye two

4 weeks prior. In explanation for the stabbing, you told the police you stabbed Mr Karaitiana because you wanted him to stop hitting and taunting you. Victim impact statements [17] I acknowledge Mr Karaitiana s family and friends at Court today. They are suffering as a result of Mr Karaitiana s death. The law does its best to respond to tragedies such as these but, as we all know, cannot do so in a way which adequately addresses the emotional impact on those involved. [18] I have received five victim impact statements and we have heard today from some members of Mr Karaitiana s family. Louise Grant, Mr Karaitiana s sister, describes his legacy and says his priority in life was his family who meant everything to him. She says it is the deepest hurt to be bestowed on any family when a loved one s life is taken so suddenly and unnecessarily, at the young age of 50. Johnny Karaitiana, the eldest son, says, when he went to visit his father in hospital, his heart and soul were devastated. He was shocked, hurt and angry and still feels this today. Mr Karaitiana s eldest daughter, Josaphina, describes her father as a kind, charming and humble man whom many people respected. She says they did not have a violent upbringing. She still finds it hard to cope and suffers from nightmares and panic attacks. [19] Mr Karaitiana s son, Harlem Karaitiana, has spoken of the helplessness the family has felt since his father s death. He says his father was a lovable person, an entertainer and a warm hearted man. [20] The final victim impact statement is from Mr Karaitiana s sister, Christine Grant. She says saying her last goodbye was indescribable. She says no one has the right to take anyone else s life. [21] The family is understandably devastated at the loss. They are angry and hurt. I need to make it clear, however, that the facts of this case would not support a charge of murder. Furthermore, while Mr Karaitiana was not a violent parent, it is not in dispute he was violent to Ms Rose, both on the night and previously.

5 Personal circumstances [22] Ms Rose, you are 47 years old. You have no prior convictions. [23] I have read a number of character references on your behalf. You are described as caring, considerate and trustworthy. The references speak of the grieving process you have been through and the mental health issues you have suffered. Pre-sentence report [24] I have read your pre-sentence report. Although your current offending is serious, the likelihood of your offending in a similar manner is assessed as low. Your support persons say you are not a violent person. [25] You have described your four year relationship with Mr Karaitiana as unstable but clarified it was not always violent. You had reunited as a couple and moved in together on the condition, you say, that Mr Karaitiana did not resume drug use or drink bourbon. Given his mood and behaviour in the weeks leading up to the day in question, you believed he had returned to methamphetamine use. You had made a decision to leave and you think someone might have told him that. [26] You expressed fear toward Mr Karaitiana s son, who had come to the house that day. In an attempt to make yourself feel secure, you had a pocket knife with you. [27] You said at the time of the stabbing you feared for your life following the assault and you only wanted [the victim] to stop. [28] The report writer views mental health issues, including significant anxiety, as a contributing factor in the offending. Taking into account your circumstances, expressed remorse and pro-social support in the community, the report-writer recommends home detention. The recommended address is considered suitable.

6 Starting point [29] There is no tariff case for manslaughter. However the law places great significance on the sanctity of human life. 2 As manslaughter covers a wide range of circumstances and criminal culpability, I am to set the starting point of your sentence by reference to similar types of offending. It is also well established that any nominated start point can be analysed and compared to the sentencing bands in R v Taueki, 3 which gives the Court guidance in relation to serious violent offences. 4 [30] On that basis, I have been referred by the Crown in their written submissions to a range of cases where a weapon has been used to assault a partner or family member and death has ensued. 5 The fact you have been charged with manslaughter in the end, rather than murder, makes it clear the Crown accepts you had no intention to kill Mr Karaitiana. This can be considered a case of excessive self defence. Whilst these other cases provide a good foundation, the specific facts of your offending are most relevant. [31] The two accepted aggravating features to your offending are: (a) Use of a weapon, the pocket knife; and (b) Impact on the victim s family. We have heard the family speak today of their love for Mr Karaitiana and the devastating impact your offending has had. This must be taken into account. [32] The Crown submits an additional aggravating feature is a degree of premeditation with respect to the use of the pocket knife. The Crown says premeditation is evident from the text message you sent to your associate and that use of a pocket knife involves the deliberate act of exposing the blade. Your counsel, R v Cunnard [2014] NZCA 138 at [16] and R v Nagle [2013] NZHC 2532 at [22]. R v Taueki [2005] 3 NZLR 372 (CA). R v Tai [2010] NZCA 598 at [11] citing R v Jamieson [2009] NZCA 555. R v Beazley [2016] NZHC 811; R v Tagatauli [2016] NZHC 757; Wharerau v R [2015] NZCA 299; R v Paton [2013] NZHC 21; R v Rakete [2013] NZHC 1230; R v Hu [2012] NZHC 54; Woods v R [2011] NZCA 573; R v Tamati HC Tauranga CRI , 27 October 2009; R v Mahari HC Rotorua CRI , 14 November 2007; R v Stone HC Wellington CRI , 9 December 2005.

7 Mr Keegan, submits the pocket knife was taken from your pocket somewhat impulsively and was not retrieved purposefully. [33] The victim s conduct is another relevant matter to consider. The Crown accepts the offending was in response to a violent situation, albeit the stabbing being an excessive response to that situation. A previous incident of violence where you had bruising to your face and reported to an associate you had been hit by Mr Karaitiana is also accepted. [34] In evaluating the extent to which I am to take these matters into account, I have found it helpful to refer to the cases of R v Tamati, 6 R v Rakete 7 and R v Tagatauli. 8 In all cases a weapon was used in the context of domestic violence. In Rakete, the defendant had reported incidents of domestic violence with the victim. The Judge accepted the victim had been acting in a threatening way prior to the offending. The defendant grabbed a large pepper shaker and struck the victim, resulting in his death. It was accepted in that case the victim was the primary aggressor and the use of the weapon was largely impulsive, motivated by fear rather than a plan to use it. A starting point of three years imprisonment was adopted. [35] Your offending is more serious than Rakete. In particular, there was a lesser level of impulsivity and the weapon was more lethal. On the other hand, your offending is less serious than Tamati. In Tamati, the offending occurred in the context of a physically violent 17 year relationship. During the course of a verbal argument which turned physical, the defendant had tried to call the police but had been prevented by the victim from doing so. She went to the kitchen and got a knife. The victim went to a bedroom and shut the door. The defendant forced her way into the victim s room holding the knife. She said her intention was to scare the victim, however, there was an altercation. She stabbed the victim once behind his left knee, causing a severed artery and death. In that case a starting point of four years imprisonment was taken R v Tamati, above n 5. R v Rakete, above n 5. R v Tagatauli, above n 5.

8 [36] The circumstances in Tagatauli were against a background of known domestic violence, including the victim being on electronic bail for charges of assaulting the defendant. The victim and the defendant had argued. The defendant obtained two knives and followed the victim upstairs. She stabbed him once in the chest and once in the right shoulder and then again in his left thigh, severing his femoral vein. A starting point of three years and nine months imprisonment was adopted with an end sentence of home detention. [37] While there is no evidence of an extensive history of prolonged domestic violence as there was in Tamati, the conduct of Mr Karaitiana immediately preceding your offending appears to be more serious. The assault against you, which resulted in your injury, the death threat, and the further threat just prior to the stabbing, as Mr Karaitiana was turning towards you and beginning to stand, are highly relevant factors. While the Crown submits your text message to your friend demonstrated other options which were available to you, the Crown accepts the text message shows a degree of desperation, anger and fear in relation to Mr Karaitiana. This was also in the context of a previous domestic violence episode, only two weeks earlier. I consider your response was not premeditated and was a somewhat impulsive response to the situation you were in. In saying that, the reference to stabbing in your text message and the fact you took out the knife while Mr Karaitiana was turned away increases your culpability, and your offending was not entirely impulsive. [38] You stabbed Mr Karaitiana in his upper back on the left side. I accept that, although this area is more vulnerable than say the legs, the stab was not directed at a particularly vulnerable area such as the chest or neck as in other cases. 9 The stab wound did, however, result in the devastating loss of life. [39] Mr Keegan submits I should take into account Mr Karaitiana denied medical assistance and the initial attending paramedic failed to appreciate Mr Karaitiana had gone into cardiac arrest. I do not accept that submission. It is simply an unfortunate part of the circumstances. The Crown submits I should take into account the fact you did not contact authorities about the stabbing. However, the Crown concedes, 9 R v Hu, above n 5 and Woods v R, above n 5.

9 given the nature of the stab wound, there would have been nothing externally to indicate the wound was significant. You also fled the property once Mr Karaitiana left the room, he having punched you around the head and face after the stabbing and threatened that you were going to die. I note only that this was a case where, like many cited by the Crown, the consequence of the stabbing being death was unexpected. 10 [40] Taking all of these considerations into account, I consider a starting point of three years and nine months imprisonment is appropriate. Personal mitigating factors Remorse [41] I have read your letter of apology to the family. I have also referred to your pre-sentence report which describes you having expressed remorse for the offending, saying Mr Karaitiana did not deserve to die and you had no intention to hurt him. Your friends have spoken of your deep remorse, tears and terrible emotional turmoil. [42] I consider your remorse to be genuine and allow a reduction of three months. Good character [43] You have no previous convictions and previous good character is a mitigating factor to be taken into account. 11 I have referred to your positive character references and take note of the pro-social support referred to in the pre-sentence report. [44] I consider a further discount of five months is warranted. EM bail [45] You were arrested on 2 June 2016 and initially remanded in custody for four months. I will come back to the relevance of those four months later. You were then R v Stone, above n 5, at [11] and R v Tamati, above n 5, at [26]. Sentencing Act 2002, s 9(2)(g).

10 granted bail by electronic monitoring (EM bail) on 7 October 2016 and served eight months. 12 Time spent on EM bail is a mitigating feature which must be taken into account. 13 The Court must consider the period of time spent on EM bail, the relative restrictiveness of EM bail and any other relevant matter. 14 [46] You were fully compliant with your bail conditions. These were restrictive and you were confined to your address 24 hours a day, seven days a week. You could only attend approved appointments with government agencies, your lawyer or health professionals. Your counsel submits the conditions were akin to home detention and says a discount of no less than eight months is warranted for the time you spent on EM bail. I consider a discount of six months is appropriate. Guilty plea [47] When your charge was reduced from murder to manslaughter you pleaded guilty. The Crown accepts a credit at the top end, if not the maximum, for your guilty plea. I give a discount of 25 per cent. [48] This results in a provisional sentence of 23 months imprisonment. Home detention [49] As this length of sentence falls within the definition of a short term sentence, I turn to consider home detention. Whether to impose home detention is an evaluative exercise for the sentencing judge, considering whether home detention is an adequate response to the seriousness of the offending. 15 [50] There is no presumption of imprisonment for manslaughter and home detention has, albeit on rare occasions, been granted in manslaughter cases with similar factual considerations, namely R v Tagatauli and R v Kirk Rose v R [2016] NZHC Sentencing Act 2002, s 9(2)(h). Section 9(3A). James v R [2010] NZCA 206 at [17]. R v Tagatauli, above n 5 and R v Kirk [2016] NZHC 1249.

11 [51] The Crown submits home detention should not be imposed, saying it would not be sufficient to mark the excessive use of force which resulted in the death. The Crown submits home detention would neither appropriately recognise the harm done to the victim s whanau, nor hold you accountable for your actions. Mr Keegan disagrees and submits home detention is appropriate in your unique circumstances. [52] Your personal mitigating factors, to which I have already referred, such as remorse, good character and your compliance with EM bail, are important considerations. Your pre-sentence report recommends home detention. [53] A particular concern is the issue of your protection in custody and the disproportionately severe nature a term of imprisonment would have for you. Detective Sergeant Bouterey has confirmed you were in protective custody during the four month period when you were remanded in prison prior to EM bail. This was suggested to you by the authorities. The issues you faced while on remand are set out in an affidavit you filed in support of bail. You were locked in a small cell, with a bed, plastic chair and toilet, 24 hours a day except when you could have a shower. You had extremely limited human contact. The at risk unit is used to hold prisoners who have misbehaved and is often occupied by angry prisoners and those who are mentally unwell. You said at times it was impossible to sleep because of the yelling and crying of other prisoners. In the words of the residential manager of Arohata Prison, this is not a good environment full time. [54] This is of real concern given your mental health issues. In his medical report dated 8 June 2017, Dr Smith describes you as having significant symptoms of depression and anxiety. [55] I also take into account the four months when you were remanded in custody on this charge as part of the evaluative approach in determining the question of home detention. These four months, when you were remanded in custody in very difficult conditions, are relevant in two ways. First, as to whether you should be sentenced to home detention and secondly as to the period of home detention.

12 [56] Where an offender is serving a short term sentence of imprisonment, meaning a sentence of 24 months or less, he or she is automatically released after having served half of the sentence. 17 This means you have already served effectively a sentence of eight months imprisonment. Furthermore, were I to sentence you to prison today, you would have already served almost one-third of the provisional sentence of 23 months imprisonment. This is because the four months in custody would be deemed time served in respect of the sentence and would be deducted from the period you would need to serve from the date of sentencing. 18 [57] In light of all these factors, I am satisfied a sentence of home detention is in accordance with the purposes and principles of sentencing and is appropriate in the circumstances. [58] The four months remand in custody is also relevant to the calculation of the period of home detention. 19 Section 82 of the Sentencing Act 2002 provides that, in determining the length of a sentence of imprisonment, pre-sentence detention must not be taken into account. This is because it will be deemed time served. There is no similar legislative provision when a sentence of home detention is to be imposed. 20 It is necessary therefore, when calculating the period of home detention, to make an allowance to reflect the time spent on remand in custody. For this reason, I reach a final sentence of eight months home detention. Result [59] Ms Rose, I sentence you to eight months home detention at the address specified in the report. There will be one special condition, which is that you are to attend an assessment for any counselling, treatment or programme as directed by a Parole Act 2002, s 86. Parole Act 2002, s 90. Nicholson v Police [2016] NZHC 300 and Laloni v R [2015] NZCA 55 at [9]. Nicholson v Police, above n 19, at [23].

13 probation officer and you are to attend and complete any recommended counselling, treatment or programme to the satisfaction of a probation officer. Standard post-detention conditions will apply. Thomas J Solicitors: Crown Solicitors Office, New Plymouth