IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA356/2018
 [2019] NZCA 232

	
BETWEEN	
JASON KARL BLACKLER
Appellant	
	
AND	
THE QUEEN
Respondent	

Hearing:	
28 May 2019	

Court:	
French, Miller and Lang JJ	

Counsel:	
J R Rapley QC for Appellant
R K Thomson for Respondent	

Judgment:	
18 June 2019 at 3 pm	

JUDGMENT OF THE COURT

A	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 with a minimum period of imprisonment of three and a half years.
[2]	Mr Blackler filed a notice of appeal against both his conviction and sentence.  He subsequently abandoned his conviction appeal.  The appeal therefore proceeded as an appeal against sentence only.
[3]	The appeal was filed 20 days out of time.  The delay was short, and the Crown did 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 the day in question the two men had been drinking together and consumed a significant amount of alcohol.  At some point, Mr Fahey angered Mr Blackler by making disparaging comments with a sexual overtone regarding the latter’s sister who was terminally ill.  Mr Blackler responded by attacking Mr Fahey, striking him multiple times to the head and neck area with his fists.
[5]	Mr Fahey suffered serious facial injuries as a result of the attack: a fractured hyoid bone, a lip split from his mouth to his nose, a broken nose, a torn eyelid, as well as extensive bruising on the inner of both eye sockets, cheeks and throat.  The injuries were such that his face was said to be almost unrecognisable.
[6]	The injuries inflicted were not in themselves fatal and would not have resulted in the death of a healthy person.  However, Mr Fahey had a pre-existing heart condition and 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 then rang his fiancée to say he thought he may have killed his best friend.  He suggested burning down the house to cover his tracks.  He then left and went to his fiancee’s house.
[8]	The following morning, his fiancée and an associate went to Mr Fahey’s house and found him lying face down on the ground dead.  They reported this back to Mr 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 with intent to injure.  His defence was to deny committing any violence at all, any intent to injure and to deny that any injuries were the cause of death.  It was suggested to the jury that Mr Fahey’s injuries may have been caused by his drunkenly stumbling about his flat after Mr Blackler had left and further that Mr Fahey’s underlying heart condition meant it was in any event impossible to rule out natural causes.
[10]	The jury rejected those contentions and found Mr Blackler guilty of manslaughter. 
Sentencing in the High Court
[11]	In sentencing Mr Blackler for manslaughter, the Judge noted there were two available approaches.  The first was to sentence on the basis of R v Taueki (this Court’s guideline decision for serious violent offending) with an adjustment for the fact the consequence was death.  The second approach was to assess culpability by reference to comparator manslaughter cases.  The Judge said she was wary of the first approach in circumstances where the injuries inflicted were not in themselves fatal but accepted it could be used as a useful cross-check.
[12]	The Judge identified five features of the offending which she considered placed it in band two of Taueki meaning a starting point of between five to ten years’ imprisonment.  Those factors were:
(a)	extreme violence to a moderate degree with numerous blows and at least 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 and substantial cause of death;
(d)	vulnerability to a moderate degree.  The victim was 19 years older than Mr Blackler, and smaller (being only 1.60 metres or five feet, three inches in height); and
(e)	abuse of trust as the attack took place in his own home by a friend and flatmate.
[13]	The Judge then turned to comparable manslaughter cases.  She considered that cases which involved a single punch or push were all less serious than Mr Blackler’s case involving as it did multiple blows causing severe disfigurement to the victim’s face.  On the other hand, she said it was less serious than cases involving violence in the context of past domestic abuse. 
[14]	In the Judge’s view, the most directly relevant case was probably the decision of this Court in Turi v R.  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 themselves fatal.  In Turi, this Court held that the appropriate starting point was five and a half years’ imprisonment.  That was fixed by reference to the alternative charge of injuring with intent to injure in respect of which the Court found a starting point of four years’ imprisonment would have been appropriate and which it uplifted by 18 months on account of the unintended death.   
[15]	The Judge acknowledged that the motivation in this case was less blameworthy than in Turi which involved a stand over to obtain drugs.  However, she said she did not diminish the seriousness of the beating inflicted on Mr Fahey, his relative vulnerability, the fact that — unlike the victim in Turi — he was knocked to the ground and the fact that Mr Blackler left the house, abandoning Mr Fahey.
[16]	Justice Dunningham said that if death had not resulted, a starting point of four and a half years for the alternative change of wounding with intent to injure would have been appropriate.  She uplifted that by 18 months to reflect the fact the victim died, arriving at a starting point of six years’ imprisonment.
[17]	Turning to personal factors, the Judge considered Mr Blackler’s “prior violent history” and the fact his offending occurred while subject to release conditions justified a further uplift of 12 months.  As for personal mitigating factors, the Judge did not consider Mr Blackler was entitled to any discount for remorse or for an offer to attend restorative justice.
[18]	The end sentence was thus seven years’ imprisonment, the minimum period of imprisonment imposed being 50 per cent of that sentence.
Grounds of appeal
[19]	In contending the sentence was manifestly excessive, Mr Rapley QC submitted on behalf of Mr Blackler, that the starting point was too high, the uplift for previous convictions was excessive and the imposition of a minimum period of imprisonment unwarranted.
Analysis
Was a starting point of six years’ imprisonment too high?
[20]	In this case, Mr Rapley took issue with several aspects of the Judge’s assessment of the seriousness of the offending.
[21]	First, he challenged the Judge’s finding that at least one of the blows had been struck after Mr Fahey had been knocked to the ground.  That was an aggravating fact which had to be proved beyond reasonable doubt and in Mr Rapley’s submission what evidence there was on the point came nowhere near satisfying that threshold.
[22]	The Judge’s finding was based on evidence of blood spatter found on a carton box by Mr Fahey’s head.  The forensic expert Ms Janes explained that spatter stain is blood that has been broken up into smaller droplets by an external force applied to the liquid blood.  She testified that the direction of disposition of the spatter stains indicated that stains were likely part of an impact to a bloodied object close to the ground.
[23]	It is correct, as Mr Rapley pointed out, that Ms Janes also stated she could not exclude cast off (blood being cast off a moving object) or expiration (expelling blood through the nose or mouth) as other possible mechanisms of disposition.  However, it is clear from her evidence that she considered impact the most likely cause.  When this is combined with the evidence that there were six impact blows to the face and no blood drips on Mr Fahey’s shirt which would be expected if he had been upright, no evidence of his having swallowed any blood which one would have expected if he was expiring blood, and no evidence of a moving object that could have been responsible for cast off, we consider the Judge was entitled to make the finding she did and to rely on it.
[24]	The second argument raised by Mr Rapley was that on the established facts the Judge had overstated the seriousness of the offending.  In particular, Mr Rapley was critical of the Judge failing to take into account that unlike the premeditated offending in Turi, Mr Blackler’s offending was impulsive and the result of provocation and intoxication.  In his submission, Mr Blackler’s culpability was significantly less than 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 violence and the severity of the injuries.  We also accept there was an element of premeditation in 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 totally disproportionate and does not materially reduce his culpability.  In addition, Mr Fahey was a more vulnerable victim than the victim in Turi, because of the disparity of age and his size.  We note too that while there is no evidence of Mr Blackler knowing of Mr Fahey’s heart condition, he must have known, as Mr Rapley conceded, that he had health issues.
[26]	 Contrary to a submission made by Mr Rapley, we also consider it relevant to take into account Mr Blackler’s callous conduct after the beating.  There is no suggestion that the offender in Turi had any inkling that death was a likely result of his assault.  As the High Court sentencing notes reveal, Mr Turi was also aware that a visitor had arrived and would soon enter the house and aware too that his associate had stayed behind.  The latter cleaned up the victim.  In contrast, Mr Blackler fully appreciated after the attack that death was a distinct possibility.  He also knew there was no one else in the house who would be able to assist Mr Fahey.  Mr Blackler could not be certain that Mr Fahey was already beyond assistance.  
[27]	When we take those factors into account and consider that one punch manslaughter cases typically attract starting points of five to six years’ imprisonment, and that starting points of seven to eight years’ imprisonment have been imposed for sustained assaults to the head causing an unintended death, we are satisfied that a six year starting point in the context of this case was within range. For completeness, we record that whether blows were struck while Mr Fahey was on the ground is not material to this conclusion. The savagery of the beating to the head and 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 — not Mr Rapley – accepted there had to be an uplift for Mr Blackler’s criminal record and that an uplift of 12 months could be justified.  The concession does not of course prevent Mr Blackler from challenging the uplift on appeal.
[29]	Mr Blackler has an extensive criminal history comprising approximately 150 convictions.  However, the majority of the convictions are for theft and property crimes with the only conviction for aggravated assault dating back to 1987 when Mr Blackler was a teenager.  That being the case, Mr Rapley says there should not have 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 with hedge clippers), common assault (2013 — family violence), common assault (2012), two convictions for threatening to kill (2007), male assaults female (2007) speaking threateningly (2006) and possession of an offensive weapon (2006). 
[31]	In our view, not only does the steady number of violent interactions demonstrate that Mr Blackler’s offending has persisted long into his adult years but it also, as the Crown submits, indicates a concerning behavioural pattern which escalated in 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 account of Mr Blackler’s criminal record but also because of the fact that the index offending took place while he was on post release conditions, something a sentencing judge is entitled to view seriously.
[33]	In all those circumstances, we consider that a 12 month uplift was open to the Judge.  Another judge might have imposed less but that does not of itself warrant appellate intervention.
Was the imposition of a minimum period of imprisonment justified?
[34]	Minimum periods of imprisonment are regulated by s 86 of the Sentencing Act 2002.  Section 86 provides:
86 	Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment
(1) 	If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.
(2) 	The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:
(a) 	holding the offender accountable for the harm done to the 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 committing the same or a similar offence:
(d) 	protecting the community from the offender.
(3) 	[Repealed]
(4) 	A minimum period of imprisonment imposed under this section must not 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 this case, Dunningham J referred to the Crown submission that one should be imposed because of Mr Blackler’s multiple previous convictions for violence and because he had carried out a violent assault on a man many years his senior.  The Judge then went on to say:
[38] 	I agree that in order to meet the purposes of sentencing which I outlined at the start, that is, deterrence, denunciation, holding you accountable for the harm done and protecting the community, a minimum period of imprisonment should be imposed and I consider a minimum period which represents half of your sentence, would be appropriate.
[36]	On appeal, Mr Rapley submits the Judge’s reasoning was perfunctory and that on a proper analysis of s 86, there were no factors justifying the imposition of a minimum period of imprisonment.  In particular, Mr Rapley contended there was nothing in the circumstances of the offence or the offender which took the case out of the ordinary for its kind.  It was a case of a man who did not have a prior history of serious violence punching a close friend after provocation during a heavy drinking session and regrettably, given the victim’s ill health, an elderly man dying.  
[37]	Those being the circumstances, requiring Mr Blackler to serve an additional period of time in prison beyond his release date would not in Mr Rapley’s submission satisfy any of the purposes of sentencing.
[38]	We accept that the Judge ought to have provided reasons for the conclusory statement quoted above.  As this Court has emphasised in other cases, minimum periods of imprisonment should not be imposed as a matter of routine or in a mechanistic way.  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 be considered for release after serving two years and four months of his sentence.  We accept that a minimum period of imprisonment beyond that period cannot be justified in this case for reasons of public protection nor for deterrence.  However, we consider that two years and four months is insufficient for the purposes of denouncing Mr Blackler’s conduct and holding him accountable, because it is insufficient recognition of the enormity of the consequences of his offending and the degree of callousness involved.  We would not however impose a two thirds minimum period of imprisonment in light of the mitigating factors identified by Mr Rapley but like the 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.

Solicitors: 
Davidson Legal Limited, Christchurch for Appellant
Crown Law Office, Wellington for Respondent