IN THE HIGH COURT OF NEW ZEALAND
WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA
WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2018-088-200
[2018] NZHC 3205
THE QUEEN

v

PATRICK DENNIS TARAWA

Hearing:

6 December 2018

Appearances:

RB Annandale and K McNeil for Crown
W McKean and J Tulloch for Defendant

Sentence:

6 December 2018

SENTENCING NOTES OF TOOGOOD J

R v TARAWA [2018] NZHC 3205 [6 December 2018]

 Introduction
[1]

Patrick Dennis Tarawa: you appear for sentence on one charge of

manslaughter, 1 having pleaded guilty following acceptance of a sentence indication
given on 26 October 2018.
[2]

I acknowledge, first, the presence of Mr Vujcich’s family and I thank them, as

Mr McKean has done, for their contribution to this sentencing process. I understand
how difficult this is for them. I understand how difficult it has been and how difficult
it will be to come to terms with what happened to a much-loved family member; but I
am grateful to them for the contribution they have made, and particularly, David, I
thank you for your expressions of hope for Mr Tarawa and his rehabilitation. I am
grateful to you for that.
[3]

I did indicate at the sentence indication hearing what I considered to be the

value of restorative justice.

I, too respect the Vujcich family’s decision not to

participate in that process; that was entirely a matter for you and I understand the
reasons why you may have felt that was not possible for you. I do commend you for
your attitude throughout this very difficult time.
[4]

I acknowledge also the presence of Mr Tarawa’s whānau and I thank you,

Evelyn, for your contribution as well. It has been particularly helpful to me to
understand something of Patrick’s background and his family life. I acknowledge and
take into account what you have said about the sacrifices that he has made on behalf
of other family members, and I can see why you tell me that what happened on this
terrible day was out of character and not consistent with the young man that you know.
The background facts
[5]

You are 22 years old, Mr Tarawa. On the 19th of January this year, you were

at a petrol station in Kaikohe in your car with your pregnant partner, Tui Rihari, who
was a passenger. As you began to turn onto the road, a white van cut across your lane,
nearly hitting your vehicle. You had to brake to avoid a collision. You then followed

1

Crimes Act 1961, ss 171 and 177, maximum penalty life imprisonment.

 the van, which was driven by the victim, Mr Chris Vujcich, who was 58 years’ old.
Mr Vujcich turned into his driveway some way down the road. Also in the van was
Mr Vujcich’s 24-year-old son, Matthew.
[6]

You parked your car a short distance away. Mr Vujcich approached your

vehicle. You got out and argued with him about the near miss. Mr Vujcich told
Matthew to move the van up the driveway, which he did, and then apparently went
inside the house. The argument between Mr Vujcich and you escalated. At some
point, Ms Rihari got out of the car and tried to stop the exchange, suggesting to both
of you that you should go your separate ways. This tragedy could have been avoided
if either of you had followed her sound advice. The argument escalated, with
Mr Vujcich pushing you in the chest. You responded by aiming a blow at Mr Vujcich;
just a glancing blow, but you punched him a second time, in the head, knocking him
backwards.

His head struck the concrete footpath, making him immediately

unconscious. Despite noticing that Mr Vujcich was “snoring” on the ground, you left
the scene without checking his condition. Matthew arrived at the scene to find his
father lying unconscious.
[7]

Mr Vujcich was taken to hospital, and assessed to be in a life-threatening

condition. He deteriorated quickly, and died the next day. A post-mortem examination
found that the cause of death was a blunt force head injury, causing bleeding at the
base of the brain stem and large skull fractures. The injuries were not survivable. The
fatal blow was not the second punch, but the force of Mr Vujcich’s head striking the
concrete.
[8]

Ms Rihari and you say that, after leaving the scene, you had a brief discussion

about what you should do and agreed you should go to the Police. You went back past
Mr Vujcich’s house and saw police cars and an ambulance there. You did not stop but
you say you were intending at that point to go to the Police, but were apprehended
while driving a short time later.
The impact on the victims
[9]

I have given careful consideration to the five victim impact statements from

members of Mr Vujcich’s family: one each from two of his sisters, one from his brother

 and his brother’s wife; and one from each of his sons. They have been read to the
Court and, as I have said, I have found them not only moving but helpful.
[10]

I cannot adequately summarise everything they have said nor do their

statements justice; but it is clear that their grief is profound and that the impact of the
offending on a family of a much-loved man has been devastating. They all speak of
Mr Vujcich’s life as a family man: a solo father to his two sons, and then a loved
grandfather to his grandchildren, some of whom lived with him at times; one in
particular. They lament the loss of his company, and of his contribution to the family’s
well-being.

The family members have also commented on how Chris’s death

coincided with a loss of health for his mother, and her eventual passing only months
later. Matthew and his brother Anthony have been out of work because they have had
to take time off to deal with their father’s affairs and the consequences of his tragic
death. As the law requires, and because it is right, I bear these factors in mind in
reaching a sentence for you, Mr Tarawa. 2
[11]

I want to say something about the bail hearing and Mr Tarawa’s behaviour. A

number of family members have mentioned, and the Crown Prosecutor mentioned,
that after the bail hearing when Judge Davis remanded Mr Tarawa on terms which
prevented him from having any contact with Ms Rihari, he punched a hole in the wall
outside the courtroom. That was not, as I understand it, an expression of contempt for
the Court or for the position he was in. It was an expression of surprise and shock and
frustration at being told that he could not have anything to do with Ms Rihari during
what was inevitably going to be a lengthy period of remand. As it happens, I saw
Judge Davis this morning and he mentioned to me that he accepts some responsibility
for what occurred. The Judge said he believed it was because he had not warned
Mr Tarawa that that was likely to occur, nor explained the reasons why. Of course,
the reason was that Ms Rihari would have been a Crown witness at any trial and it
would have been inappropriate for Mr Tarawa to have any contact with her until then.
So I give that explanation; it does not excuse the behaviour, and Mr Tarawa knows
that, but I do give that explanation so that you might have a better understanding of
what motivated it.

2

Sentencing Act 2002, s 8(f).

 [12]

I hope that as victims you will use part of this process, at least, to come to terms

with the tragedy. I do recommend that you read the material that has been provided to
the Court by Mr Tarawa and members of his family and those who support him, so
that you will at least have a better understanding of the factors that I have to take into
account in considering the appropriate sentence for him.
Purposes and principles of sentencing
[13]

The Sentencing Act requires me to take into account some general purposes

and principles. 3 I regard the requirements to denounce or show disapproval of your
conduct, Mr Tarawa, and to hold you accountable for the harm done to Mr Vujcich
and his family as particularly relevant.

A man died well before his time in

circumstances that were entirely avoidable and through conduct that the courts and the
community rightly regard as unacceptable. Unless the courts recognise these matters
in imposing sentences, respect for the criminal justice system will be undermined and
there is a risk that members of the community will be motivated to take the law into
their own hands.
[14]

I said at the time of giving the sentence indication that the statutory purpose of

deterring you and others from resorting to violence is also relevant to the sentence to
be imposed, but I have reflected on that proposition and I do not now rely on it.
Deterrent sentences are those that are imposed to discourage offenders and others from
similar offending – such sentences are harsher than would otherwise be appropriate if
they were confined to addressing other sentencing purposes. But I do not see how
spontaneous, impetuous offending of this kind – completely lacking in any element of
planning or premeditation – could be influenced, let alone deterred, by a stern sentence
of imprisonment imposed in a similar prior case. And there are other, more realistic,
sentencing options available to reduce any likelihood that you would re-offend in this
way. I do not see in your character – what I know of it – and in your past, any prospect
that you would behave violently in this way or in any other way in the future.

3

Sentencing Act 2002, ss 7-8.

 [15]

Parliament has said that the courts must bear in mind the purpose of assisting

an offender’s rehabilitation and reintegration and to take account of the need to impose
the least restrictive outcome that is appropriate in the circumstances. 4
Approach to assessment of appropriate sentence
[16]

In determining what is an appropriate sentence for you, I will follow the

standard three-stage approach that I used during the sentence indication. 5 That means
I first find a starting point that reflects the circumstances of your offending, including
its gravity and any aggravating or mitigating factors; and prominent amongst those
must be the fact that a man died as a result of what you did. I will then make any
necessary adjustments for personal factors and, finally, apply a discount recognising
your guilty plea and any particular remorse.
Starting point
[17]

In setting a starting point, I pay particular regard to two aggravating factors:
(a)

First, the degree of violence with which the offence was committed.
You struck Mr Vujcich twice. The amount of force is not entirely clear
but the second blow was sufficient to knock Mr Vujcich to the ground,
and actual violence to the head is always a serious aggravating factor. 6
This case is a classic example of why that is so.

(b)

Second, I take into account the extent of harm caused. The violence
caused death, albeit unintentionally, but there can be no more serious
consequence of any offending.

[18]

I also take into account that you had several opportunities to reflect on what

was happening and to calm down – including taking Ms Rihari’s advice to get back in
the car – and that you did not assist Mr Vujcich after he fell.

4
5
6

Sentencing Act 2002, s 7(1)(h).
R v Taueki [2005] 3 NZLR 372 (CA) and Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
R v Taueki [2005] 3 NZLR 327 (CA) at [31].

 [19]

The Court of Appeal has noted that provocation can be a mitigating factor in

violent offending, 7 and it is often a mitigating factor in manslaughter cases such as
this in which death has been caused by a punch. 8 Mr Vujcich contributed to the tension
of the situation by pushing you but his actions were not the cause of the offending.
The cause of the offending was your impetuous and unreasonable response to what
may well have been poor driving by Mr Vujcich. Momentary alarm and even anger at
an incident that could have involved a collision and injury is understandable; and I
understand that your instincts were to react to the risk to Ms Rihari and your unborn
child which existed at that moment. But the confrontation that led to Mr Vujcich’s
death and to your present predicament was caused by your over-reaction, your poor
judgment and your inability to control your temper, resulting in two blows at
Mr Vujcich, the second of which had dreadful fatal consequences.
[20]

There is no tariff case for sentencing in manslaughter cases due to the wide

range of circumstances in which that crime can be committed. The comparison with
similar cases is instructive. Taking the cases discussed at the sentence indication 9
hearing and other cases into account, and bearing in mind the factors to which I have
referred, I consider a starting point of three years and nine months’ imprisonment to
be appropriate.
Personal circumstances
[21]

In attempting to understand who you are and how you have come to be in this

position, I have been greatly assisted by a heartfelt letter from Ms Evelyn Tarawa –
your aunt – and Ms Rihari, your partner, whose views are supported by other referees.
[22]

Addressing the Court under s 27 of the Sentencing Act, Ms Tarawa has

described your childhood in Kaikohe, and the responsibility you took on within your

7
8

9

R v Taueki [2005] 3 NZLR 327 (CA) at [32].
See for example R v Needham HC Wellington CRI-2010-085-5780, 14 December 2010; R Ovaleni
[2018] NZHC 2034; and R v Efeso HC Auckland CRI-2008-92-7925, 24 October 2008.
R v Bryenton HC Auckland CRI-2009-4-3080, 7 April 2009; R v Efeso HC Auckland CRI-200892-7925, 24 October 2008; R v Carmichael HC Tauranga, CRI-2007-70-2603, 6 September 2007;
R v Larson HC Dunedin CRI-2011-012-1013, 6 July 2011; Murray v R [2013] NZCA 177; R v
Ovaleni [2018] NZHC 2034; R v Needham HC Wellington CRI-2010-085-5780, 14 December
2010; R v O’Brien HC Auckland CRI-2009-4-11941, 29 September 2009; R v MacFarlane [2014]
NZHC 1106; Palmer v R [2016] NZCA 541

 whānau for the welfare of your younger siblings. She says you are a kind, wellmannered young man who wanted to be different and do better than your “rebellious”
older siblings who were “going off the rails”. You were an avid sports fan and
a devoted and capable rugby league player at school. You moved to South Auckland
to attend that fine school Wesley College, and thrived there until you had to move back
to Kaikohe due to the breakup of your parents’ relationship. It was from then that you
became a “third parent” to your younger siblings and a “support beam” for both of
your parents; roles which, Ms Tarawa acknowledges, you were too young to take on.
She goes on to describe your deep attachment to Ms Rihari and your anxiety about
becoming a father. Mr Tarawa, you are said to be highly respected by your wider
whānau and they are fully supportive of you.
[23]

Your partner, Tui, describes you as a hard-working, kind-hearted and loving

young man who strives for success and who gives his all to be a good role model. She
says you are “remorseful for your actions and willing to do what it takes to pay for the
consequences”. She has told the Court that she has observed your sincere regret and
how you struggle every day to forgive yourself for your mistakes. She talks about the
close bond you have formed with your three-month old son, and is fearful of the longterm effect on him if you were to be taken away. She confirms that you are well-loved
and supported by your family.
[24]

The character references you have provided lead me to conclude that you are

universally liked and respected by those who know you. You are described as loving
and humble; a selfless young man who put his own life – sporting, schooling and social
– on hold to protect and provide for his younger siblings. Despite being well aware of
what has brought you here, the people who took time to provide references for you
remain supportive. I trust that you will be able to take up the opportunities for
employment which appear to be available to you and that in particular, you commit
yourself to some form of apprenticeship to build on for the rest of your life.
Aggravating factors
[25]

You have several previous convictions, but, as Mr McKean explains, they are

minor: for petty theft and driving offences. They are symptomatic, regrettably, of

 problems which young people – particularly in this part of the country – suffer through
deprivation. I do not regard them as relevant to my assessment of an appropriate
sentence, but your history means that you are not entitled to call on your good
behaviour and a clean record in the past as a mitigating factor worthy of a discount.
Mitigating factors
[26]

As Mr McKean has submitted, the mitigating factors which I must – or should,

at least – take into account are the time you spent on electronically monitored bail;
remorse; your capacity for rehabilitation, and your youth, particularly relative to the
circumstances of the offending.
EM bail
[27]

The terms of your bail confined you, after you were released from an initial

period in custody, on a 24-hour curfew which is equivalent to home detention. You
were either in custody or under that serious constraint for more than ten months and it
kept you apart from your family, Ms Rihari and your new-born son in Kaikohe while
you were in South Auckland. About two weeks ago, after you pleaded guilty, your
bail terms were modified and you have been on EM bail back with your family. The
circumstances of your bail have imposed a serious burden on you; moreover, you have
fully complied with the very strict terms of it. I consider that those terms justify a
discount of six months’ imprisonment. Applying that discount would reduce the
starting sentence to three years and three months’ imprisonment.
Youth factors
[28]

The Sentencing Act recognises that the age of the offender can be a mitigating

factor, 10 and in a leading case the Court of Appeal has said that youth can be relevant
to sentencing in three ways, being: 11
(a)

10
11

age-related neurological differences between young people and adults;

Sentencing Act 2002, s 9(2)(a).
Churchward v R [2012] NZCA 531, (2011) 25 CRNZ 446.

 (b)

the effect of imprisonment on young people; and

(c)

the fact that young people have a greater capacity for rehabilitation than
adults.

[29]

Mr Annandale submits that your previous convictions, although not seen as an

aggravating factor, are relevant to the Court’s assessment of whether reduction for
your youth is appropriate and, if so, to what extent. I understand that submission. It
is argued that although discounts are applied on the basis that young people have a
greater capacity for rehabilitation, you have been assessed as being at medium risk of
harm and reoffending. The Crown submits that your previous convictions demonstrate
that you continue to offend notwithstanding previous sentences by the Court.
[30]

The reliance on neurological differences between youths and adults is not just

a device to justify treating young people more leniently than adults who offend. It is
based on neurological science which has established that those parts of the human
brain which control impulses and reasoning and the assessment of risk are the last to
become fully formed. In males, it is acknowledged that adolescence – that is, the
process of becoming a fully functioning adult – is usually not completed until the midor, in some cases, later-20s. That means that, although you were not a young person,
being aged 21 at the time of this offending, you were and remain of an age when young
men can be guilty of impulsive or impetuous behaviour without fully comprehending
the possible consequences of their actions. Therefore, to a degree, the impulsive,
reckless response which caused Mr Vujcich’s death can be attributed partly to your
youth. What occurred in this case has all of the hallmarks of youthful offending in:
(a)

your gross overreaction to what, at least, you perceived to be
Mr Vujcich’s poor driving;

(b)

your failure to pause and reflect on your actions when prompted to back
off by your partner; and

(c)

your impulsive response when the argument with Mr Vujcich became
physical.

 [31]

Taking all matters into account, I consider a 20 per cent discount for your youth

is appropriate. That would produce a reduced sentence of two years and seven months’
imprisonment.
Remorse
[32]

Following your sentence indication, it was confirmed to Mr McKean that, if a

guilty plea was entered, an adjournment of the sentencing would be granted, if
necessary, to enable a restorative justice process to occur. You indicated a willingness
to participate in a restorative justice conference, but you respected the wishes of
Mr Vujcich’s family, in a letter addressed to them, when that was declined. You
acknowledge that restorative justice would have been difficult for them, and I, too,
accept that the family members should not be criticised in any way for declining your
offer.

Nothing can compensate them for the loss of their much-loved father,

grandfather, brother and friend, and they see you as being responsible for that.
[33]

In your letter to Mr Vujcich’s family you apologise profusely but acknowledge

that your words can never replace what your actions have taken from them. You are
ashamed of what you did, and you accept full responsibility for it. I consider you have
made genuine efforts to accept – and to demonstrate that you accept – responsibility
for your offending. Importantly, I accept that you will carry the heavy burden of that
responsibility for the rest of your life.
[34]

The law requires the Court to take into account any offer of amends when

imposing a sentence. In your letter, you expressed your “deepest sympathy” to the
Vujcich family and described the “unbearable regret” you live with. You now work
hard “every day to be a better person”. I accept these sentiments as genuine, and I
hope that the Vujcich family, and Mr David Vujcich in particular who referred to this
aspect, will understand that this event, though tragic, may make you a fine adult; a fine
father.
[35]

Where there is tangible evidence of genuine remorse a discount of around five

to eight per cent has been considered appropriate. 12 In my assessment, a discount of
12

McArthur v R [2013] NZCA 600 at [13]-[14]; Rowles v R [2016] NZCA 208 at [18]; Clark v R

 two months would be an appropriate reduction in the circumstances, and this brings
the sentence down to two years and five months’ imprisonment.
Guilty plea discount
[36]

Through counsel, you pursued a request for a sentence indication as soon as

substantial agreement on material matters of fact had been reached. This means that
a significant discount for your guilty plea is available and, as I noted in the sentence
indication, I consider that the particular circumstances warrant a discount of 25 per
cent. Rounding down, that results in an end sentence of one year and nine months’
imprisonment.
Home detention and community detention
[37]

As that sentence would be a short sentence of under two years, you are eligible

for home detention. 13 That is in itself serious punishment and it is regarded as meeting
the need for a deterrent sentence in an appropriate case. 14 The restrictions that home
detention impose on your freedom of movement will be particularly difficult for a
young man with a family. Given that a man died, I have to decide whether a sentence
less than imprisonment would adequately address the applicable purposes and
principles of sentencing I have referred to, particularly the purposes of denunciation
and accountability, and those words really mean "punishment".
[38]

The Crown submits that, while there is no presumption in favour of imposing

a sentence of imprisonment for manslaughter, the sentencing purposes of deterrence
and denunciation, and the principle of consistency, are all in favour of a sentence of
imprisonment being imposed. It usually is in manslaughter cases. The proposal for
home detention is that you would continue to reside at your family’s address [

]

which would give you support and potentially assist in your rehabilitation.
Mr Annandale questions the degree of support available to you, and the Crown
submits that the purposes and principles of sentencing can only be achieved by a

13
14

[2013] NZCA 63; Watene v R [2014] NZCA 381; Poi v R [2015] NZCA 300 and Kavenga v Police
[2015] NZHC 2599.
Sentencing Act 2002, s 15A(1)(b).
R v Iosefa [2008] NZCA 453 at [41].

 sentence of imprisonment to adequately reflect the impact and effect of your
offending.
[39]

The probation officer who provided written pre-sentence advice to the Court

recognises the gravity of your offending but considers that home detention is an
available alternative to imprisonment in this case. The high degree of family support
you receive, your remorse, your adherence to strict bail terms and your rehabilitation
prospects are referred to.
[40]

When considering whether to impose a sentence of home detention instead of

imprisonment, in what is by no means an easy case, I am mindful that I must have
regard to the desirability of keeping offenders in the community as far as that is
practicable and consonant with the safety of the community. 15 A balancing exercise is
required.
[41]

I consider that the factors weighing against imprisonment are:
(a)

your age;

(b)

your educational qualifications and work history and the potential to be
a productive contributor to society;

(c)

the degree of family support you receive and which remains available
to you;

(d)

your relationship with Ms Rihari and your child and your ability to
contribute to their care and wellbeing;

15

(e)

the absence of evidence of alcohol or drug abuse;

(f)

the absence of negative emotional health or wellbeing issues;

Sentencing Act 2002, s 16(1).

 (g)

your faithful adherence to the stringent terms of EM bail over a lengthy
period;

(h)

your willingness to address anger issues through any recommended
programmes, and the assessment that your motivation and ability to
comply with such programmes are high;

(i)

I take into account the absence of any prior rehabilitative communitybased sentence; and finally

(j)

the negative implications for your rehabilitation and, therefore, the
interests of the community, if you were required to serve a first sentence
of imprisonment.

[42]

Standing back, I am not persuaded that the prospect of creating an opportunity

for you to redeem yourself through a tailored sentence must yield to what would be,
in the circumstances, a purely punitive term of imprisonment. I am satisfied that a
sentence of home detention, combined with a substantial period of community work,
would meet the sentencing purposes and principles which apply to this case by
balancing deterrence, condemnation and accountability against rehabilitation and
reintegration.
Sentence
[43]

If you were sentenced to a term of imprisonment of around one year and nine

months, which is what I have considered would be appropriate, you would be entitled
to early release after having served only half of that period; so around about ten
months. Early release does not apply to home detention, the maximum period of
which is 12 months. Taking that into account, I consider that a period of ten months’
home detention is appropriate. In addition, I impose on you a sentence of 400 hours’
community work, which is the maximum available.
[44]

The conditions of your home detention sentence are those set out in the

Probation officer’s recommendation:

 (a)

You are to travel directly to the address of [

] immediately

following sentencing, and there await the arrival of the electronic
monitoring company representative. If that is to occur, given that you
have been on EM bail.
(b)

You are to remain at the address of [

], for the duration

of the sentence of home detention unless otherwise authorised by the
Probation Officer, and that will mean that you will be released under
supervision to carry out your sentence of community work, and I trust
that you will be in a position to apply for work leave at an appropriate
time during your sentence.
(c)

You are not to purchase, possess or consume alcohol or illicit drugs for
the duration of your sentence.

(d)

You are to attend and complete a suitable violence prevention or anger
management programme to the satisfaction of a Probation Officer and
the programme provider, and the details of the appropriate programme
are to be determined by your Probation Officer.

(e)

You are to undertake and complete any other counselling or treatment,
if deemed suitable, to the satisfaction of the Probation Officer and
counsellor, the details of that course to be determined by your Probation
Officer.

(f)

The usual post-detention conditions will apply and those special
conditions I have mentioned will also apply post-detention.

[45]

Please stand down, Mr Tarawa.

.....................................................
Toogood J