Just days before Nicho Waipuka punched and stomped a Wellington journalist to death, he narrowly avoided being jailed for a similarly unprovoked assault.
The family of Phillip Cottrell said it was like "an earthquake" when they learned yesterday that the chance to lock up Waipuka had been missed.
A District Court judge decided on November 22, 2011, not to follow a probation officer's recommendation that Waipuka be given a prison sentence on charges including assault and threatening to kill.
Seventeen days later, on December 10, Waipuka killed Mr Cottrell, 43, as he walked home from a nightshift at Radio New Zealand and robbed him of $80.
Even though Judge Ian Mill had said Waipuka, then 19, "quite clearly" should be sent to prison, he allowed the Killer Beez gang associate to walk free from Lower Hutt District Court with an intensive supervision sentence.
Waipuka was to have alcohol and drug abuse treatment, and attend a tikanga Maori programme, with the possibility of other treatment or counselling intended to improve him.
Judge Mill endorsed Waipuka's file with a formal "final warning" and said he would personally review his progress in three months.
By then, Mr Cottrell was dead, after Waipuka unleashed what a High Court judge yesterday called swift and brutal "recreational violence" on him.
The fact that he killed Mr Cottrell while still under the supervision sentence, and had 24 previous convictions that included three for violence, yesterday became the grounds for his manslaughter sentence of 12 years and 10 months.
Justice Forrie Miller said he had considered life imprisonment for the attack, which was "very close indeed to murder". Waipuka must serve at least 8 years before he can be considered for parole.
Mr Cottrell had described himself as having "old lady bones" as a result of a rare medical condition but Justice Miller said it was no excuse for Waipuka to say that Mr Cottrell was unexpectedly vulnerable.
Waipuka maintained at his trial that he had punched Mr Cottrell only once, but other evidence satisfied Justice Miller that he shattered Mr Cottrell's skull with a kick or stomp as he lay on the ground, and that another kick broke his arm.
The judge left open the possibility that there had been other blows as well.
The jury at this trial in December acquitted Waipuka of murder but found him guilty of manslaughter.
Manuel Renera Robinson, 18, who was with him at the time of the attack, was acquitted of both murder and manslaughter.
At Waipuka's District Court sentencing before the attack, Judge Mill said he had punched someone in the head in a Lower Hutt street in September 2011 and walked off, leaving the victim to be assaulted by other people.
In August the same year, he had threatened to kill a female friend when she refused to collect him from Wellington Hospital. He was so angry that, after getting a ride from someone else, he punched a window and smashed a door off its hinges.
The other charges he was sentenced for at that time were two breaches of a community work sentence, refusing to undergo a driver's impairment test when he was stopped by police, driving while suspended, three shoplifting-type thefts, two wilful damage offences, disorderly behaviour, resisting arrest and breaching bail.
Sensible Sentencing Trust spokeswoman Ruth Money yesterday said: "The justice system has once again failed abysmally. It had the opportunity to intervene in a meaningful way to stop Waipuka's contempt for the rules of society at least 24 times before killing Phillip Cottrell. All before he was even 20 years old.
"We thank Justice Forrest Miller for the nearly 13-year sentence he handed down to Waipuka, but remain disgusted the system allowed this to happen . . ."
APPEAL LIKELY AGAINST SENTENCE
An appeal seems likely against what legal commentators agree is an unusually hefty sentence on a manslaughter charge.
Criminal lawyer John Miller said Nicho Waipuka's sentence of 12 years and 10 months reflected the "straight-out brutal attack" on Phillip Cottrell.
"It's a lengthy sentence, but there were a lot of aggravating features here, and very few mitigating features from the outside whatsoever. No provocation . . . It's street thuggery.
"It may be appealed, that's the next hurdle they've got to go through, but c'est la vie."
Jonathan Krebs, convener of the Law Society's criminal law committee, said the sentence was "one of the higher" handed down for manslaughter, and reflected Justice Miller's view of Waipuka's culpability.
Garth McVicar, of the Sensible Sentencing Trust, was "pleasantly surprised" by the sentence.
"It is very good for manslaughter.
"This has got to be one at the top end - judges can go to 20 years for manslaughter, but they very rarely do."
SISTER 'GRATEFUL' TO JUDGE FOR LENGTHY JAIL SENTENCE
Phillip Cottrell fought death for an hour and 40 minutes after his life support was turned off.
"I will never forget how tightly he gripped my hand in his last moments," his sister, Sue Hollows, said in the High Court at Wellington yesterday.
"I told him to be brave and he'd feel better soon."
No sentence would ever be enough but she said she was grateful that Justice Forrie Miller sentenced Nicho Allan Waipuka to 12 years and 10 months in jail for her brother's manslaughter.
The judge had done the best for the family that he possibly could, she said.
"We were prepared for the worst and it's actually way better than we were expecting with regards to the sentence."
"I think Judge Miller just nailed it," her husband, Heath Hollows, said.
Only about half an hour before entering court, the couple learned that Waipuka had received a "last chance" sentence 17 days before he killed Mr Cottrell in December 2011, and had narrowly avoided going to prison.
The news felt like an earthquake, Mr Hollows said.
"He shouldn't even have been out on the street," his wife said.
The couple had been so despairing when Waipuka was acquitted of murder, and his co-accused was acquitted of both murder and manslaughter, that Mrs Hollows initially decided not to attend the sentencing.
She felt the jury had given "two angry thugs" the benefit of the doubt. But she changed her mind about attending court, and was glad she did.
Mr Cottrell had planned to return to England in five years to look after his ageing parents.
Instead, she and her husband took his ashes to them.
Sue Hollows said her mother was still inconsolable, drowning in depression and would not leave her home.
Sue Hollows' own grief is so severe that she gets stabbing pains in her stomach.
Her brother was a remarkable and gentle man who had visited 73 countries from the list of 100 that he aimed to see before his 50th birthday, she said.
His friends and family are continuing his quest and have ticked off another 17 countries since his death.
- © Fairfax NZ News
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