BLACKLER v R [2019] NZCA 232

BLACKLER v R [2019] NZCA 232 [18 June 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA356/2018[2019] NZCA 232BETWEEN JASON KARL BLACKLERAppellantAND THE QUEENRespondentHearing: 28 May 2019Court: French, Miller and Lang JJCounsel: J R Rapley QC for AppellantR K Thomson for RespondentJudgment: 18 June 2019 at 3 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by French J)[1] Mr Blackler was convicted of manslaughter following trial by jury.The presiding Judge, Dunningham J, sentenced him to seven years' imprisonment witha minimum period of imprisonment of three and a half years.11 R v Blackler [2018] NZHC 830.[2] Mr Blackler filed a notice of appeal against both his conviction and sentence.He subsequently abandoned his conviction appeal. The appeal therefore proceeded asan appeal against sentence only.[3] The appeal was filed 20 days out of time. The delay was short, and the Crowndid not oppose an extension of time, which is accordingly granted.The facts of the offending[4] The person killed by Mr Blackler was his friend and flatmate Mr Fahey. On theday in question the two men had been drinking together and consumed a significantamount of alcohol. At some point, Mr Fahey angered Mr Blackler by makingdisparaging comments with a sexual overtone regarding the latter's sister who wasterminally ill. Mr Blackler responded by attacking Mr Fahey, striking him multipletimes to the head and neck area with his fists.[5] Mr Fahey suffered serious facial injuries as a result of the attack: a fracturedhyoid bone, a lip split from his mouth to his nose, a broken nose, a torn eyelid, as wellas extensive bruising on the inner of both eye sockets, cheeks and throat. The injurieswere such that his face was said to be almost unrecognisable.[6] The injuries inflicted were not in themselves fatal and would not have resultedin the death of a healthy person. However, Mr Fahey had a pre-existing heart conditionand the attack in combination with his ill-health caused his death. In legal terms,the attack, although not the sole cause of death, was a substantial and operative cause.[7] After the attack, Mr Blackler attempted to clean the blood off himself and thenrang his fiancée to say he thought he may have killed his best friend. He suggestedburning down the house to cover his tracks. He then left and went to his fiancee'shouse.[8] The following morning, his fiancée and an associate went to Mr Fahey's houseand found him lying face down on the ground dead. They reported this back toMr Blackler and suggested he hand himself in to police which he later did.[9] Mr Blackler stood trial for manslaughter or in the alternative wounding withintent to injure. His defence was to deny committing any violence at all, any intent toinjure and to deny that any injuries were the cause of death. It was suggested tothe jury that Mr Fahey's injuries may have been caused by his drunkenly stumblingabout his flat after Mr Blackler had left and further that Mr Fahey's underlying heartcondition meant it was in any event impossible to rule out natural causes.[10] The jury rejected those contentions and found Mr Blackler guilty ofmanslaughter.Sentencing in the High Court[11] In sentencing Mr Blackler for manslaughter, the Judge noted there were twoavailable approaches. The first was to sentence on the basis of R v Taueki (this Court'sguideline decision for serious violent offending) with an adjustment for the factthe consequence was death.2 The second approach was to assess culpability byreference to comparator manslaughter cases.3 The Judge said she was wary of the firstapproach in circumstances where the injuries inflicted were not in themselves fatal butaccepted it could be used as a useful cross-check.4[12] The Judge identified five features of the offending which she considered placedit in band two of Taueki meaning a starting point of between five to ten years'imprisonment. Those factors were:5(a) extreme violence to a moderate degree with numerous blows and atleast one delivered while Mr Fahey was on the ground;(b) attacks to the head to a high degree;(c) serious injury to a high degree, the assault being an operative andsubstantial cause of death;2 R v Taueki [2005] 3 NZLR 372 (CA); and R v Blackler, above n 1, at [21].3 At [21].4 At [21] and [27].5 At [22] and [26].(d) vulnerability to a moderate degree. The victim was 19 years older thanMr Blackler, and smaller (being only 1.60 metres or five feet, threeinches in height); and(e) abuse of trust as the attack took place in his own home by a friend andflatmate.[13] The Judge then turned to comparable manslaughter cases. She considered thatcases which involved a single punch or push were all less serious than Mr Blackler'scase involving as it did multiple blows causing severe disfigurement to the victim'sface.6 On the other hand, she said it was less serious than cases involving violence inthe context of past domestic abuse.7[14] In the Judge's view, the most directly relevant case was probably the decisionof this Court in Turi v R.8 It too concerned a victim with a pre-existing heart condition,and a number of blows to the head and neck and injuries that were not in themselvesfatal.9 In Turi, this Court held that the appropriate starting point was five and a halfyears' imprisonment.10 That was fixed by reference to the alternative charge ofinjuring with intent to injure in respect of which the Court found a starting point offour years' imprisonment would have been appropriate and which it uplifted by18 months on account of the unintended death.11[15] The Judge acknowledged that the motivation in this case was less blameworthythan in Turi which involved a stand over to obtain drugs.12 However, she said she didnot diminish the seriousness of the beating inflicted on Mr Fahey, his relativevulnerability, the fact that — unlike the victim in Turi — he was knocked to the groundand the fact that Mr Blackler left the house, abandoning Mr Fahey.136 R v Blackler, above n 1, at [30], referring to R v Ruru CA371/01, 12 February 2002; and R vKengike [2008] NZCA 32.7 At [30], referring to R v Paku HC Hamilton CRI-2005-019-6408, 7 September 2006; R v TutahiHC Wellington T4724/01, 26 April 2002; and R v Faletolu [2014] NZHC 2218.8 At [31], citing Turi v R [2014] NZCA 254.9 Turi v R, above n 8, at [3].10 At [21].11 At [20].12 R v Blackler, above n 1, at [33].13 At [33].[16] Justice Dunningham said that if death had not resulted, a starting point of fourand a half years for the alternative change of wounding with intent to injure wouldhave been appropriate.14 She uplifted that by 18 months to reflect the fact the victimdied, arriving at a starting point of six years' imprisonment.15[17] Turning to personal factors, the Judge considered Mr Blackler's "prior violenthistory" and the fact his offending occurred while subject to release conditionsjustified a further uplift of 12 months.16 As for personal mitigating factors, the Judgedid not consider Mr Blackler was entitled to any discount for remorse or for an offerto attend restorative justice.17[18] The end sentence was thus seven years' imprisonment, the minimum period ofimprisonment imposed being 50 per cent of that sentence.18Grounds of appeal[19] In contending the sentence was manifestly excessive, Mr Rapley QC submittedon behalf of Mr Blackler, that the starting point was too high, the uplift for previousconvictions was excessive and the imposition of a minimum period of imprisonmentunwarranted.AnalysisWas a starting point of six years' imprisonment too high?[20] In this case, Mr Rapley took issue with several aspects of the Judge'sassessment of the seriousness of the offending.[21] First, he challenged the Judge's finding that at least one of the blows had beenstruck after Mr Fahey had been knocked to the ground. That was an aggravating factwhich had to be proved beyond reasonable doubt and in Mr Rapley's submission whatevidence there was on the point came nowhere near satisfying that threshold.14 R v Blackler, above n 1, at [33].15 At [33].16 At [34].17 At [35].18 At [40].[22] The Judge's finding was based on evidence of blood spatter found on a cartonbox by Mr Fahey's head.19 The forensic expert Ms Janes explained that spatter stainis blood that has been broken up into smaller droplets by an external force applied tothe liquid blood. She testified that the direction of disposition of the spatter stainsindicated that stains were likely part of an impact to a bloodied object close tothe ground.[23] It is correct, as Mr Rapley pointed out, that Ms Janes also stated she could notexclude cast off (blood being cast off a moving object) or expiration (expelling bloodthrough the nose or mouth) as other possible mechanisms of disposition. However, itis clear from her evidence that she considered impact the most likely cause. Whenthis is combined with the evidence that there were six impact blows to the face and noblood drips on Mr Fahey's shirt which would be expected if he had been upright, noevidence of his having swallowed any blood which one would have expected if he wasexpiring blood, and no evidence of a moving object that could have been responsiblefor cast off, we consider the Judge was entitled to make the finding she did and to relyon it.[24] The second argument raised by Mr Rapley was that on the established factsthe Judge had overstated the seriousness of the offending. In particular, Mr Rapleywas critical of the Judge failing to take into account that unlike the premeditatedoffending in Turi, Mr Blackler's offending was impulsive and the result of provocationand intoxication. In his submission, Mr Blackler's culpability was significantly lessthan Turi and accordingly the starting point should have been less, not more.[25] We accept that the two cases are comparable in terms of the degree of violenceand the severity of the injuries. We also accept there was an element of premeditationin Turi that was not present in this case. On the other hand, in our assessment,Mr Blackler's response to the comments made about his sister was totallydisproportionate and does not materially reduce his culpability. In addition, Mr Faheywas a more vulnerable victim than the victim in Turi, because of the disparity of ageand his size. We note too that while there is no evidence of Mr Blackler knowing of19 R v Blackler, above n 1, at [5].Mr Fahey's heart condition, he must have known, as Mr Rapley conceded, that he hadhealth issues.[26] Contrary to a submission made by Mr Rapley, we also consider it relevant totake into account Mr Blackler's callous conduct after the beating. There is nosuggestion that the offender in Turi had any inkling that death was a likely result ofhis assault. As the High Court sentencing notes reveal, Mr Turi was also aware that avisitor had arrived and would soon enter the house and aware too that his associatehad stayed behind.20 The latter cleaned up the victim.21 In contrast, Mr Blackler fullyappreciated after the attack that death was a distinct possibility. He also knew therewas no one else in the house who would be able to assist Mr Fahey. Mr Blackler couldnot be certain that Mr Fahey was already beyond assistance.[27] When we take those factors into account and consider that one punchmanslaughter cases typically attract starting points of five to six years'imprisonment,22 and that starting points of seven to eight years' imprisonment havebeen imposed for sustained assaults to the head causing an unintended death,23 we aresatisfied that a six year starting point in the context of this case was within range. Forcompleteness, we record that whether blows were struck while Mr Fahey was onthe ground is not material to this conclusion. The savagery of the beating to the headand the callous behaviour afterwards in themselves justified a six year starting point.Was the 12 month uplift excessive?[28] It appears that counsel who represented Mr Blackler at sentencing — notMr Rapley – accepted there had to be an uplift for Mr Blackler's criminal record andthat an uplift of 12 months could be justified. The concession does not of courseprevent Mr Blackler from challenging the uplift on appeal.20 Turi v R [2013] NZHC 2411 at [10]–[11].21 At [11].22 Everett v R [2019] NZCA 68 at [21], citing R v Pene [2010] NZCA 387; and Murray v R [2013]NZCA 177.23 Te Pana v R [2014] NZCA 55; R v Rangi [2015] NZHC 1879; and R v Hetherington CA28/02,20 June 2002.[29] Mr Blackler has an extensive criminal history comprising approximately150 convictions. However, the majority of the convictions are for theft and propertycrimes with the only conviction for aggravated assault dating back to 1987 whenMr Blackler was a teenager. That being the case, Mr Rapley says there should nothave been any uplift or if there was to be one, it should only have been very modest.[30] We accept that the majority of the convictions are dishonesty type offences.However there are also a significant number of more recent convictions for violence,including threatening to kill (2014), cruelty to animals (2014 — stabbing dog withhedge clippers), common assault (2013 — family violence), common assault (2012),two convictions for threatening to kill (2007), male assaults female (2007) speakingthreateningly (2006) and possession of an offensive weapon (2006).[31] In our view, not only does the steady number of violent interactionsdemonstrate that Mr Blackler's offending has persisted long into his adult years but italso, as the Crown submits, indicates a concerning behavioural pattern which escalatedin the sustained attack on Mr Fahey. That took place in October 2016.[32] Criticism of the uplift also overlooks that it was imposed not only on accountof Mr Blackler's criminal record but also because of the fact that the index offendingtook place while he was on post release conditions, something a sentencing judge isentitled to view seriously.[33] In all those circumstances, we consider that a 12 month uplift was open tothe Judge. Another judge might have imposed less but that does not of itself warrantappellate intervention.Was the imposition of a minimum period of imprisonment justified?[34] Minimum periods of imprisonment are regulated by s 86 of the Sentencing Act2002. Section 86 provides:86 Imposition of minimum period of imprisonment in relation todeterminate sentence of imprisonment(1) If a court sentences an offender to a determinate sentence ofimprisonment of more than 2 years for a particular offence, it may, atthe same time as it sentences the offender, order that the offender servea minimum period of imprisonment in relation to that particularsentence.(2) The court may impose a minimum period of imprisonment that islonger than the period otherwise applicable under section 84(1) ofthe Parole Act 2002 if it is satisfied that that period is insufficient forall or any of the following purposes:(a) holding the offender accountable for the harm done tothe victim and the community by the offending:(b) denouncing the conduct in which the offender was involved:(c) deterring the offender or other persons from committingthe same or a similar offence:(d) protecting the community from the offender.(3) [Repealed](4) A minimum period of imprisonment imposed under this section mustnot exceed the lesser of—(a) two-thirds of the full term of the sentence; or(b) 10 years.[35] In imposing a three and a half year minimum period of imprisonment in thiscase, Dunningham J referred to the Crown submission that one should be imposedbecause of Mr Blackler's multiple previous convictions for violence and because hehad carried out a violent assault on a man many years his senior.24 The Judge thenwent on to say:[38] I agree that in order to meet the purposes of sentencing whichI outlined at the start, that is, deterrence, denunciation, holding youaccountable for the harm done and protecting the community, a minimumperiod of imprisonment should be imposed and I consider a minimum periodwhich represents half of your sentence, would be appropriate.[36] On appeal, Mr Rapley submits the Judge's reasoning was perfunctory and thaton a proper analysis of s 86, there were no factors justifying the imposition ofa minimum period of imprisonment. In particular, Mr Rapley contended there wasnothing in the circumstances of the offence or the offender which took the case out of24 R v Blackler, above n 1, at [37].the ordinary for its kind. It was a case of a man who did not have a prior history ofserious violence punching a close friend after provocation during a heavy drinkingsession and regrettably, given the victim's ill health, an elderly man dying.[37] Those being the circumstances, requiring Mr Blackler to serve an additionalperiod of time in prison beyond his release date would not in Mr Rapley's submissionsatisfy any of the purposes of sentencing.[38] We accept that the Judge ought to have provided reasons for the conclusorystatement quoted above. As this Court has emphasised in other cases, minimumperiods of imprisonment should not be imposed as a matter of routine or ina mechanistic way.25 It is not sufficient to simply recite the statutory provisions.A reasoned analysis is required.[39] In the absence of an order under s 86, Mr Blackler would be eligible to beconsidered for release after serving two years and four months of his sentence. Weaccept that a minimum period of imprisonment beyond that period cannot be justifiedin this case for reasons of public protection nor for deterrence. However, we considerthat two years and four months is insufficient for the purposes of denouncingMr Blackler's conduct and holding him accountable, because it is insufficientrecognition of the enormity of the consequences of his offending and the degree ofcallousness involved.26 We would not however impose a two thirds minimum periodof imprisonment in light of the mitigating factors identified by Mr Rapley but likethe Judge would limit it to 50 per cent or three years and six months.[40] We therefore uphold the Judge's decision on that basis.Outcome[41] The application for an extension of time to appeal is granted.[42] The appeal against sentence is dismissed.25 Tamati v R [2018] NZCA 463 at [15]; R v Parker CA179/03, 21 August 2003; and R v Gordon[2009] NZCA 145.26 Sentencing Act 2002, s 86(a) and (b).Solicitors:Davidson Legal Limited, Christchurch for AppellantCrown Law Office, Wellington for Respondent