R v AJN HC Hamilton CRI 2010-019-9786

[2010] NZHC 1822

ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF AJN

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2009-019-9786

THE QUEEN

v

AJN

MOANA HEREMAIA IVAN LESLIE MANUKAU

Hearing:         30 September 2010

Counsel:         R G Douch and L Dunn for Crown

C B Cato and R Barnsdale for AJN
R Laybourn and J Buckle for Ms Heremaia
K Burroughs and A M Jones for Mr Manukau

Sentence imposed:     Murder (x1)

AJN:  Life imprisonment, with minimum non-parole period of
10 years imprisonment

Mr Manukau:  Life imprisonment with minimum non-parole period of 12 years imprisonment

Manslaughter (x1)

Ms Heremaia: Three years nine months imprisonment

Judgment:      30 September 2010

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, PO Box 19173, Hamilton
Counsel:

M J Robb, PO Box 58, Hamilton

R Laybourn, PO Box 936, Hamilton
K Burroughs, PO Box 19307, Hamilton

C B Cato, PO Box 941, Shortland Street, Auckland

R V AJN AND ORS HC HAM CRI 2009-019-9786  30 September 2010

Introduction

[1]      AJN, Ivan Leslie Manukau and Moana Heremaia, each of you appear for sentence today on charges arising out of the death of Piki Maunga Kingi.  Mr Kingi was killed on 10 June 2009 but his body was not located until 14 June 2009.

[2]      AJN pleaded guilty to a charge of murder on 11 August 2010.  You, AJN, are aged 21 years.

[3]      Mr  Manukau,  you  entered  a  plea  of  guilty to  a  charge  of  murder  on  3

September 2010.  You are aged 43 years.

[4]      Ms Heremaia, you entered a plea of guilty to a charge of manslaughter, also on 3 September 2010.  You are aged 46 years.

[5]      A fourth person is alleged by the Crown to have been involved in the killing of Mr Kingi.  He now disputes the facts on which you have agreed you should be sentenced.  I intend to mention what he is alleged to have done, as you have accepted for the purposes of your sentencing.   For the purposes, however, of any report, it must be clear that these are allegations so far as he is concerned.

[6]      The   maximum   penalty   for   both   murder   and   manslaughter   is   life imprisonment.   There is no reason in this case to reduce the sentence of life imprisonment for murder.

[7]      When I go on later to consider the minimum period to be imposed, you must bear in mind that the sentence is actually life imprisonment.   It is for the Parole Board to determine, when you become eligible to apply, whether you should be released from prison after that minimum period has expired.  But the sentences I will be  passing  on  you,  AJN,  and  you,  Mr  Manukau,  today,  are  ones  of  life imprisonment.

[8]      So  far  as  the  manslaughter  charge  is  concerned,  Ms  Heremaia,  life imprisonment is the maximum penalty available and it is my job to determine what actual sentence you should receive for your role in this offending.

The facts

[9]      Mr Kingi’s body was found in a motor vehicle parked on Mansel Avenue in Hillcrest on 14 June 2009.  At the time of his death, he was living near Cambridge with his partner and five children.

[10]     Mr Kingi was believed to be involved with the Class A controlled drug, methamphetamine.  Police intelligence indicated that he was often in possession of large quantities of that drug and cash.   The intelligence also suggested that those items would be stored within the engine bay of motor vehicles that he was driving at a particular time.

[11]     In the beginning of June 2009, Ms Heremaia and Mr Marteley were partners. They moved to a house on Cobham Drive, in Hamilton.  Mr Manukau you were a sickness beneficiary who resided in Piako Road, in Claudelands.   AJN, you were part of Mr Manukau’s whanau and you spent much of your time at his home address.

[12]     Shortly before Mr Kingi’s death, Mr Marteley and Mr Kingi hatched a plan to steal a chemical from a local agricultural industry supplier.   It was a chemical commonly used in the manufacture of methamphetamine.   Mr Marteley, however, considered he had been double-crossed by Mr Kingi and deprived of his rightful share of the proceeds of the venture.

[13]     Mr  Kingi  had  also  been  supplying  methamphetamine  to  Mr  Manukau. Mr Manukau  had  become  disillusioned  with  the  quality  of  the  product  he  was receiving.

[14]     In early June, these grievances were discussed at Mr Manukau’s home.   A decision was made to seek retribution.  The agreement reached was for Mr Kingi to be lured to the Cobham Drive address where he was to be attacked and robbed of

drugs and money.  Mr Marteley and AJN were to carry out the actual assault.  Mr Manukau and Ms Heremaia were to act as look-outs.   During the course of this enterprise, the four of you were in communication through mobile telephones.

[15]     For  sentencing  purposes,  I  work  on  the  basis  that  Mr  Marteley  and Mr Manukau   were   the   moving   forces   behind   this   plan,   though   AJN   and Ms Heremaia were willing participants.

[16]     On 7 June 2009, Mr Marteley sent a text to Mr Kingi advising that he was in possession of a large sum of money, following the sale of a powerboat.  He indicated that he wanted to buy a quantity of methamphetamine and expected to complete the transaction on 10 June 2009.  He suggested the transaction be completed at his home address.

[17]     Once Mr Kingi agreed, Mr Marteley informed both Mr Manukau and AJN of the arrangements.  A series of text communications followed involving Mr Marteley, Mr Manukau and Mr Kingi.

[18]     On 10 June 2009, Mr Kingi came to the house at Cobham Drive.  Previously, Mr Marteley had taken a cricket bat from Mr Manukau’s home to that address.  In addition, a tomahawk was sharpened by Mr Marteley, as and he awaited Mr Kingi’s arrival.

[19]     Mr Marteley went outside and greeted Mr Kingi.  The two of them entered the hallway area of the house.  AJN stepped out from behind a curtain, striking Mr Kingi in the head with the cricket bat.  Subsequently, Mr Kingi was struck again, but with the cricket bat and tomahawk.  He died of his injuries in an adjacent bedroom that day.

[20]     The post-mortem report indicates that Mr Kingi died as a result of head injuries which were consistent with blunt force trauma.   Death was likely to have occurred quickly.

[21]     The autopsy report also suggests that Mr Kingi suffered a sustained attack. There were cuts and stab wounds consistent with injuries that would have been inflicted by a tomahawk.   There were wounds to the head, neck, back and limbs. Mr Kingi’s skull was fractured, with the fracture extending from the left side of the skull around to the right side.   Some defence wounds were identified, but it is unlikely that he had any real opportunity to defend himself.

[22]     After his death, Mr Kingi was bundled up in bedclothes and put in the rear of his motor vehicle.   AJN and Mr Marteley drove the vehicle to Mansel Avenue, where it was abandoned.  About 30 minutes elapsed from the arrival of Mr Kingi at the Cobham Drive address until his body was abandoned in Mansel Avenue.

Purposes of sentencing

[23]    In a case like this, the primary sentencing goals must be denunciation, accountability, deterrence and the protection of the public from those who are prepared to engaged in conduct of this type.  Those purposes are relevant both to the finite sentence to be imposed on the manslaughter charge and to any minimum period of imprisonment to be imposed on the murder charge.[1]

[1] Sentencing Act 2002, ss 8, 86 and 106(2).

[24]     You will have heard this morning the victim impact statements read.  Those statements reveal the depth of despair that has been reached by those who were associated with Mr Kingi.  As you would expect, the death of a person affects their loved ones deeply.  It is your actions that have caused those feelings.  You, between the three of you, have caused the loss of this life and the penalty I impose today must reflect that.

(a)   The murder convictions

[25]     I deal first with AJN and Mr Manukau on the basis of their pleas of guilty to the charge of murder.  As I have, said the sentence will be life imprisonment.  The issue is what minimum non-parole period should be imposed.

[26]     The  aggravating  features  of  this  offending  mean  a  starting  point  for considering a minimum term of imprisonment is one of 17 years.[2]    In determining the length of the minimum term, I must impose one that is necessary to satisfy one or more of the purposes to which I have referred.[3]

[2] Ibid, ss 103(2) and 104(1).

[3] Ibid, s 103(2).

[27]     The factors that are instrumental in fixing the starting point for consideration are these:[4]

[4] Ibid, s 104(1)(a), (b) and (e).

a)       The killing resulted from a calculated plan in which you were both involved.  It was premeditated, in the sense that you agreed to a plan that involved a vicious assault on Mr Kingi that you both knew could have caused death.

b)The murder was committed with a high level of brutality, cruelty and callousness.

c)       Attempts  were  made  to  subvert  the  course  of  justice,  by  hiding Mr Kingi’s body in the vehicle and abandoning it at a location some distance from where the crime occurred.  In doing that, you afforded no dignity to Mr Kingi in death.  Not only did you attack him in the way you did in life, you then thought little of his body as you disposed of it for your own ends.

[28]     Although, Mr Manukau, you were not one of the assailants, it is inherent in your plea of guilty that you knew that death might well occur from what happened. While some allowance can be made for the more passive role you played, you must still be regarded as an active participant in the overall enterprise.

[29]     In  determining  whether  it  is  “manifestly  unjust”  to  impose  a  minimum sentence of imprisonment of less than 17 years,[5]  I must address the features of the offending individually.

[5] Ibid, s 104.

[30]     AJN, you entered your plea of guilty at a time that would ordinarily have attracted a credit for a guilty plea of about 20%.[6]    That credit would incorporate remorse.   That remorse is evident from the statement made through your counsel today, that you wrote down for him to read.

[6] Hessell v R [2010] 2 NZLR 298 (CA) at para [15].

[31]     There are other factors that have been made known to me.  It is fair to say you have been frank.  There is information before me to suggest that a significant credit should be given.

[32]     Taking into account all relevant factors, including the guilty plea, I propose to allow an overall credit which will have the effect of reducing the minimum period of imprisonment to one of 10 years.

[33]     Let me put it briefly: I consider it would be manifestly unjust to impose a minimum period of imprisonment of 17 years and I am not persuaded it is necessary for a period in excess of 10 years be imposed.  So, AJN, you will be sentenced to life imprisonment with a minimum term of 10 years.

[34]     Mr Manukau, your role is serious in that you appear to have had a degree of influence over AJN leading him to participate in the way he did.  You entered your plea of guilty at a much later stage, though I consider you are entitled to some credit for that.  I would consider the credit should be somewhere in the region of 10%.[7]

[7] Ibid, at para [15].

[35]     Your counsel has drawn my attention to your poor state of health at the time of your offending and your lesser role in the infliction of harm on Mr Kingi.

[36]     The medical evidence before me suggests that you may not survive a period of imprisonment.  Though as Mr Douch indicated, your state seems better now than when you were first arrested.  You present as a man who has had significant medical problems.  You have chronic Hepatitis C and a history of depression.

[37]     As the Courts have said on many occasions, health issues are to be regarded as ones to be addressed primarily within the prison system.[8]   However, some account can be taken when the imposition of a sentence is likely to be disproportionately severe for a particular offender.[9]

[8] R v Verschaffelt [2002] 3 NZLR 772 (CA) and R v KJB(CA41/07) [2007] NZCA 292 at paras [53]- [64]..

[9] Sentencing Act 2002, s 8(h).

[38]    There are provisions in the Corrections Act 2004[10] which enable prison authorities to release prisoners from custody or remove them from prison on compassionate grounds or ones relating to the humane treatment of a prisoner.

[10] Corrections Act 2004, s 62.

[39]     I am prepared to allow some reduction in conjunction with the guilty plea to allow for your health considerations.  I conclude that a minimum non-parole period to 12 years will suffice.

[40]     Again, to put the matter in the same way as I did with AJN: I am satisfied it would be manifestly unjust to impose a minimum term of 17 years but I am not satisfied that one in excess of 12 years is required.

(b) Manslaughter

[41]     Ms Heremaia, you have pleaded guilty to manslaughter.  You were prepared to enter a plea of guilty to manslaughter after committal, though the Crown indicated in  August  a  willingness  to  accept  that  plea.    I  consider  you  should  receive  a significant credit for the entry of that plea, even though it did not occur until 3

September 2010.

[42]     I accept you were under the influence of Mr Marteley.  Your role was limited to that of a look-out.  I accept that you did not believe that death was likely to result from the attack on Mr Kingi and that is the basis upon which your plea of guilty to manslaughter has been accepted.

[43]     I have read the psychiatrist’s report and other reports made available to me. They disclose a confusing and unsettled life, peppered with abuse of drugs and alcohol.   While you are not diagnosed as having any psychiatric illness, you have previously suffered auditory hallucinations and have been at risk of self-harm.

[44]     I agree with Mr Douch that the appropriate approach to your sentencing is to regard it as akin to that of aggravated robbery.  In doing so, however, I must bear in mind that the analogy must not be taken too far.   Ultimately, I must exercise a judgment as to the appropriate sentence to be imposed, having regard to the fact that death resulted from what occurred.

[45]     This was an attack involving pre-meditation.  You were party to the planning. You were aware of the different roles of the participants.   You were aware that weapons would be used.

[46]     In  my  view,  the  combination  of  circumstances  to  which  I  have  already referred, coupled with the fact that death resulted, justifies a starting point for sentence in the range of six to eight years imprisonment.  I choose a starting point of six years six months.[11]

[11] R v Mako [2000] 2 NZLR 170 (CA) at paras [46] and [58].

[47]     From that starting point, I deduct six months to take account of your lack of previous convictions and a further 12 months to reflect your medical condition and the subservient role played by you under the influence of Mr Marteley.

[48]     In addition, I provide a credit of 25% to reflect the timing of your willingness to plead guilty to manslaughter.   The expressions of remorse, which I accept and have been put to the Kingi whanau today through Mr Laybourn, are taken into account with the credit given for the guilty plea.

[49]     The adjusted starting point, after taking account of mitigating factors other than the guilty plea is five years imprisonment.  Rounding the credit for the guilty plea to  a further  15  months,  the end  sentence  will  be three  years  nine months

imprisonment.  I agree with the Crown that no minimum period of imprisonment is required.

Result

[50]     In summary:

a)        AJN,  you  are  sentenced  to  a  term  of  life  imprisonment  with  a minimum non-parole period of 10 years

b)Mr Manukau, you are sentenced to life imprisonment with a minimum non-parole period of 12 years

c)        Ms Heremaia you are sentenced to a term of imprisonment of three years nine months.

[51]     Stand down.

Addendum

[52]     Through the Registrar, Mr Laybourn, for Ms Heremaia, has inquired whether

I intended to address s 100 of the Sentencing Act 2002.

[53]     I had reached the view that, notwithstanding time served on remand, it was appropriate for Ms Heremaia to serve a period of imprisonment prior to any parole hearing.  For that reason, I did not exercise a discretion to defer the commencement

of her sentence of imprisonment.

P R Heath J