A tourist who killed a man with a banjo after he received unwanted sexual advances has been sentenced to 12 years imprisonment, with a minimum non-parole period of eight years.
Ferdinand Ambach, a Hungarian tourist, will be deported from New Zealand following the conclusion of his sentence.
Ambach was drinking with Ronald James Brown, on December 7, 2007, at a suburban Auckland bar before they went to Mr Brown's Onehunga flat.
A violent argument erupted and Mr Brown, 69, was bashed repeatedly with a banjo before the neck of the instrument was rammed down his throat.
He died in hospital three days later after his life support system was switched off.
Ambach was sentenced today at the Auckland High Court after being found guilty of the manslaughter of Ronald James Brown in July.
At the sentencing today, members of Mr Brown's family gave emotional victim impact statements.
Brown's sister Colleen Wise said that nothing could have prepared the family for his "bruised and battered" body when they saw him in hospital.
"We gathered around his bedside holding his hand as his life support was turned off," Miss Wise said.
She said Ambach took a dearly beloved uncle from her daughters' lives.
"You not only battered Ron's body but trashed his house," Ms Wise said.
She said Mr Brown's name had been slandered in public during the trial and he had no means to defend himself.
A niece of Mr Brown, Helen Whiting, described seeing her uncle in hospital shortly before he died.
"We had to see the damage you inflicted on my uncle and he was barely recognisable," she said, reading a victim impact statement.
Another niece, Tracey Evans, told Ambach: "You have no idea of the devastation you have bought to our family, and the heartbreak into our lives."
She told Ambach that his attack was "vicious and cowardly" on a man twice his age.
"We talk about Uncle Ron every day, you can never take that away from us.
"Our family, as I'm sure you have seen, is close-knit and very tight. It was only through this that we got through the last years of hell," Ms Evans said.
She called Ambach a "disgrace" to his country.
"I hope you live with the shame and the guilt for the rest of your life."
Ambach wiped tears from his eyes once the statements had been read.
Crown Prosecutor Deborah Marshall said the provocation defence had been used but was at the bottom end of the scale.
Mrs Marshall said Mr Brown may had touched Ambach on the thigh and briefly in his groin area, but there was no evidence to suggest an attempted rape.
She said Ambach had not expressed any remorse and a sentencing report from Probation said he was likely to reoffend.
Mrs Marshall said the beating was "savage" and the sentence should have a starting point of 10 years.
Ambach's lawyer Peter Kaye said his client had no previous convictions. He said unlike New Zealand prisoners, Ambach will not receive visits from family members because he has none in the country.
Mr Kaye said "he has assured me that he felt extremely sorry for everything that occurred."
In her sentencing, Justice Helen Winkelmann said the show of remorse had come late and was likely to be "self-serving".
She described the killing "as close to murder as you could possibly get while still obtaining the benefit of manslaughter."
Justice Winkelmann said the degree of provocation was extremely low and the attack was aggravated by the use of weapons, which included shoving a banjo neck down Mr Brown's throat and striking him with a dumbbell.
She said that during the attack Mr Brown was unconscious on the stairs of his flat while Ambach threw personal items at his body, which ended up blocking the stairwell.
During the trial, the defence case was that the 31-year-old accused was provoked by two unwanted sexual advances by Mr Brown, who was gay, and that attention, and the effects his drink being spiked, caused him to act in an involuntary way where he wasn't in control of his actions.
The Crown said Mr Brown was struck five times before Ambach rammed the broken-off neck of the banjo down his throat.
When police arrived at the scene, they found Mr Brown badly injured and Ambach throwing furniture through an upstairs window and on to the lawn, while yelling in Hungarian.
Ambach told police that he could only remember parts of what happened that night.
Summing up the case, Judge Helen Winkelmann said they should put aside any prejudices they may have about homosexuality.
"Mr Brown was a homosexual but he kept his sexuality separate from his friends and family. That doesn't make it blameworthy.
"You have to reach your verdicts based on what you've heard," she said.
The jury was told they had to agree on three areas - that there had been a homicide, that it was a culpable homicide and that the accused had murderous intent.
Judge Winkelmann added that the jury had to consider how Ambach reacted before and after the attack, and whether he was provoked by sexual advances from Mr Brown.
They were also told to consider whether these advances caused Ambach to lose the power of self control.
Brown's family is calling for the repeal of the provocation defence.
Ms Evans said they were appalled that Ambach was convicted of manslaughter rather than murder.
"I think they have to look at its imminent repeal. We've seen it's an archaic partial defence.
"The judge can certainly take into account if there's special circumstances outside in sentencing. There's no need for it in our judicial system any longer."
But Mr Kaye says the provocation defence should stay.
"I think provocation should remain. I there are some compelling situations that just cry out for the defence of provocation. It's already very carefully policed by judges and there's no doubt in my mind it should remain."
The Government has already announced plans to get rid of the provocation defence. A bill to abolish it is before a select committee.
- NZ HERALD STAFF, NZPA, NEWSTALK ZB