A High Court judge says a man jailed for killing a Radio New Zealand journalist was lucky to escape becoming the first person in a decade to get life imprisonment for manslaughter.
Instead, Nicho Waipuka has been jailed for 12 years and 10 months, with a minimum non-parole period of eight-and-a half years.
Phillip Cottrell was on his way home just after 5.30am after finishing an overnight shift when he was attacked on Boulcott Street in central Wellington on 10 December 2011.
The 43-year-old had a condition which made his bones brittle. He suffered severe head injuries and died the following day in hospital after being taken off life support.
Waipuka, 20, was cleared of murder by a jury in December 2012, but convicted of manslaughter. Co-accused Manuel Robinson was found not guilty.
It has emerged that Waipuka was on the brink of going to jail for other offences and was under intensive supervision at the time of the offence.
At the High Court in Wellington on Friday, Justice Miller told Waipuka that he had seriously considered a sentence of life imprisonment, even though it has not been applied to manslaughter for at least 10 years.
The judge said Waipuka enjoyed inflicting violence and deliberately kicked Phillip Cottrell in the head to achieve his goal of robbery. He said Waipuka's manslaughter was very close to murder.
24 previous convictions
The court was told that Nicho Waipuka had 24 previous convictions, of which three were for violence.
Seventeen days before he killed Phillip Cottrell, he was sentenced at a Lower Hutt court to 18 months' intensive supervision for an assault and was warned he would be jailed if he reoffended.
Justice Miller told Waipuka his culpability was very high and said the killing was characterised by a series of aggravating features.
"There are the dual motives of recreational violence and robbery, the associated element of premeditation, the vulnerability of the victim - in which I include not only his helpless state when you kicked him on the ground, but also his medical condition - and the callousness that you exhibited immediately afterwards."
Waipuka had admitted punching Phillip Cottrell, but the judge rejected the suggestion that Mr Cottrell had received his fatal injuries by falling on concrete after he was hit and said they were caused by two kicks as he lay on the ground.
The judge said this case of manslaughter strongly resembled murder for three reasons, so a life sentence might be appropriate.
"The jury might well have drawn the inference that you did appreciate that what you did might kill. Second, you deliberately did very serious harm to Mr Cottrell for the purposes of robbery and recreational violence. Third, I think that you present a high risk of violent reoffending."
However, Justice Miller decided against a life sentence because Waipuka was only 19 at the time, because he offered to plead guilty to manslaughter earlier in the case, and because the judge could not be sure the defendant's high probability of reoffending would persist after a long term of imprisonment.
Phillip Cottrell's sister Sue Hollows and her husband Heath read out victim impact statements and gave a harrowing account of the effect the death has had on their family. Mr Hollows told the court the grief caused by the loss does not get better with time.
"Phil had every right to life as any two people walking towards him on an inner-city Wellington street. And what gives these people in society who commit these kinds of crimes the right to take that right away from others, I have no idea."
Jail term more than family expected
Phillip Cottrell's sister says the jail term imposed on Nicho Waipuka has restored some of her faith in the justice system.
Sue Hollows told Radio New Zealand's Checkpoint programme on Friday she was crushed when the jury last year acquitted him of murder.
However, she said the fact Justice Miller told Waipuka he had considered a life sentence and jailed him for 12 years was more than the family had expected.
"It's given us a bit of hope back in the justice system. We just felt so let down after that verdict and we were expecting to come here again today and feel let down again."
Ms Hollows said it was shocking to hear that Waipuka had previously attacked other people before her brother and wishes he had been put in jail then.
"It was very difficult to hear that he had also attacked two other people previously a couple of months (before) attacking Phillip and he was given a second chance then. And so 17 days later, he did the same thing to Phillip which ended up in Phil's death.
"He should have been inside anyway - he shouldn't have been walking the streets again."