Manslaughter – sentencing – Crimes Act 1961 ss 158 and 171 – fright-response – youth discount – Dickey v R [2023] NZCA 2 – s 27 cultural report – remorse

The King v Joniero Joe Irving [2023] NZHC 946

Joniero Irving was found guilty of the manslaughter of James Jenkins.

Irving and Jenkins engaged in a brief conversation in a bar on the Auckland Viaduct. It became apparent that there was history between the pair and that Jenkins was wary of Irving. Out of Irving’s sight, Jenkins removed his Rolex watch and gold necklace and slipped them into his partner’s handbag. The court was satisfied that Jenkins thought Irving may try and make him hand over the jewellery he was wearing.

Upon leaving the bar, Irving appeared to act aggressively toward Jenkins and began chasing him along the viaduct. Jenkins dove into the water and began to swim along the harbour with Irving and his friend shadowing him from land.

With the assistance of a ferry employee, Jenkins swam to a ladder on the pier and climbed onto a ferry. Irving attempted to board the ferry but was stopped by the staff member. He then continued to make demands from the pier, insisting Jenkins had over his gold rings.

Jenkins complied and handed over the rings but Irving demanded the gold necklace Jenkins had handed to his partner earlier in the evening. Jenkins once again jumped into the harbour and swam toward the bow of the ferry. Irving observed Jenkins in the water before leaving. Jenkins drowned.

The court said the case fell into the “fright-response” manslaughter category. A starting point of five years and six months imprisonment was adopted.

No discount was allowed for good character as Irving had 16 notations in the youth court, 14 of which were for burglary. The court acknowledged the decision of Dickey v R which reaffirmed the availability of youth discounts for defendants up to the age of 25 but noted that this was to reflect the incomplete neurological development associated with youthful impulsivity.

No youth discount was given to Irving as the court found his conduct was deliberate and not associated with the hallmarks of impulsivity associated with young people.

A 15% discount was applied to reflect Irving’s tumultuous and violent upbringing. Despite letters of remorse, no discount for remorse was allowed. The court referred to text messages sent by Irving the morning of the incident which did not indicate he was remorseful. Nor had Irving disclosed the whereabouts of the rings obtained from Jenkins.

Held: Irving was sentenced to four years and eight months imprisonment.

Jasmine Jackson is an Auckland criminal defence barrister and a member of the ADLS Parole Law committee

Irving