R v Alexander

[2018] NZHC 1584

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-Ō-MARU ROHE

CRI-2016-009-009101

[2018] NZHC 1584

THE QUEEN

v

JAYDEN SHANE ALEXANDER

Hearing:	29 June 2018
Appearances:	A R McRae and H V Bennett for the Crown J R Rapley for the Defendant
Date:	29 June 2018

SENTENCING REMARKS OF NICHOLAS DAVIDSON J

A.INTRODUCTION

[1]Mr Alexander, you may remain seated until the end of my Sentencing Remarks.

[2]    Ms Tuuta, I gather you are in court? Would you mind coming forward please, I would like to ask you something before I commence the sentencing. Would you like to come to the front bench here? Thank you Ms Tuuta. I am not wanting to put you on the spot and first of all I want to thank you for the report which counsel have recognised, and I want to acknowledge, is very helpful to the Court in many ways.

R v ALEXANDER [2018] NZHC 1584 [29 June 2018]

[3]    There was one aspect I wanted to understand a little better, and you have heard it mentioned in the submissions today, that from the Crown’s perspective, a report such as this does not, as it were, count to discount, but it counts to understanding the offender, their cultural background or lack of it, and very much where they figure in their Maori centre of life, in this case in Mr Alexander’s life he has not had that, and that is what I take from your report. But I wanted to understand if you were suggesting more when you talked about the incidents of offenders who were placed in what is now of course Oranga Tamariki, but previously CYFS, compared with those who were not, because I am so conscious of the number of children of all ethnicities who have ended up in the same position going through that and I could not understand quite what you were suggesting about that comparison, because Pakeha, Pacifica children and those or other children in those placements from an early age, often are those that statistically reflect in a higher level of offending later. Did you intend to go beyond that?

[MS TUUTA]

[4]    Sir, you have put me a bit on the spot, but it is ok. In relation to meeting obviously with Mr Alexander and hearing his story of really his whole life has been with Pakeha family and really there is, as much as he knows he is Maori, he does not know what that means. He does not know where his grandparents come from.  I had a little analogy when I talked to Mr Alexander in an interview and I said to him, he saw a lot of his Maori culture obviously coming from his mother, but nothing beyond that, and I said what happens if you found out that in generations ago there was a leader, a tribal leader, a male figure that you actually connect to, you possibly could know that. He was not in a position to do that and in my view, because the focus of obviously with Oranga Tamariki is to take the children out of harm’s way, whatever that may be, there has not been a focus to obviously in the first instant, look at whanau, hapu or iwi, to take that who could impart that knowledge. Whakapapa comes from your whanau, it comes from the people, the people hold the knowledge. Quite directly when you are born you do not know where you are from, many iwi do not hold whakapapa databases. Some of them do, like Ngai Tahu, that is done through your birth certificates and registration, but to find out who you are and that connection and

your sense of being rests within your whanau to share that knowledge with you when it is ready.

[5]    My view on this in terms of children being uplifted and taken away is that they have lost their opportunity to do that. Lost that opportunity to find out who they are. Lost the opportunity to find their sense of place, and move to a place where they feel comfortable about their purpose.

[6]    I hope that answers your question, it is probably in a roundabout way. [HIS HONOUR]

[7]    Well no, it has thank you and I do not intend to ask you any more questions really. You will know that the Cultural Report under s 27 of the Act is seldom obtained. In fact it is the first time I have come across it in over three years, and many Judges have never come across it, and there is some, not debate, at least analysis of quite how it fits in, and I am going to say to you now that I found it very enlightening and helpful to me.

[8]    I do not know whether you can answer this question, but is Mr Alexander’s removal from Tikanga Maori knowledge and experience typical of people who were placed in care from an early age?

[MS TUUTA]

[9]    I believe, yes, and that is mainly because there has been an absolute disconnect that cannot be achieved in any other way, other than being with your whanau.

[HIS HONOUR]

[10]   With your whanau. But he has been with Pakeha family hasn’t he? [MS TUUTA]

[11]That is correct. Yes, but that is from my knowledge.

[HIS HONOUR]

[12]   Thank you very much Ms Tuuta. You are very welcome to sit over here if you like in the jury box, which it usually is, and I am going to refer to your report.

[13]   Mr Alexander I am going to speak for a little time here, both so you understand the way in which I reach the sentence I have to impose, but also because I have to set out the facts of your offending in the context of other cases and compare them, as your counsel and Mr McRae have said. So, I ask you to bear with me. I am going to keep you here for some time while I do this.

[14]   You  appear  for  sentence  for  the  murder  of   your  brother,  Tainui,  on   13 September 2016 at Ashburton.

[15]   The conviction for murder, which I now formally enter, is a second strike under what is called the “three strikes” legislation, more correctly a Stage 2 offence, and the Court is directed to follow a stepped process to reach the end sentence.

[16]   Under s 86E of the Sentencing Act 2002 (which I will refer to as “the Act”), where a “Stage 2” or “second strike” offence is murder, the Court must sentence the offender to imprisonment for life and order that he or she serve that sentence without parole unless the Court is satisfied that given the circumstances of the offence and the offender, it would be manifestly unjust to do so, in which case a minimum period of imprisonment must be imposed. The steps in the sentencing process are described in the case of the Queen v Harrison,1 to which I will return.

B.         THE OFFENDING

[17]I turn to the offending itself.

[18]   A striking feature of this case is that your brother Tainui died by your hand. Yet this is not unique in New Zealand and I will refer to other such cases, as have already been mentioned by Mr McRae. On the evidence, and your own statements

1      R v Harrison [2016] NZCA 381; [2016] 3 NZLR 602 at paras [109] – [110].

reported to the Court and which I have now read and the statement you wrote in your own hand, you were as close to your brother as to anyone, along with your sister, Ariana.   You  said in the reports that were made that  you  were “tight” with him.     I understand that.

[19]   You have had a very troubled and severely unstructured life outside of prison which has left you, in my view damaged, and as it happens, dangerous to others when you face challenges even in a minor way, particularly associated with your abuse of alcohol.

[20]   The evidence is that when you drink you become aggressive and threatening and you resort to violence as part of what you have become and how you deal with others. The week before Tainui died you had a knife in your hand and threatened the mother of your unborn baby. She stood up to you and defended herself and the baby and you did not use the knife, and what is called propensity evidence at the trial before the jury, did not include your use of the knife, it was not part of the Crown case against you. However, your propensity to hold or flourish or play with a knife was part of the evidence. However, the offence which gave rise to the first strike warning, which you received from Her Honour Judge Maze in this Court, was an occasion when you went further, and you were violent to the victim, as the sentencing notes of the Judge demonstrate, and to which I will refer.

[21]   Tainui was described in evidence as a “sloppy drunk”, and not aggressive. Exactly what happened in the lead up before he died was contested at trial, but what is clear is that you were drinking and aggressive that evening, and you were highly aggravating to others in the house, including Tainui. You and Tainui were both intoxicated and so were others. He had asked you to quieten down as the evening went on. Emitana Aranui, his girlfriend, described this evening. You became louder and you were “banging and yelling and screaming…”. Tainui told you “Bro cut it out” and “Go home. Don’t do that sort of stuff here”.

[22]   He went back to bed and there was more noise and then you yelled out the power had gone out. You continued “banging everything like the walls and stuff”, as was said in the evidence, and Tainui got up again and told you to cut it out or go home.

[23]   You were “just mumbling” and Emitana could not really understand anything you were saying, but you were speaking in an angry manner. It was after that, that you came to the bedroom door and put your hand through. The light was on. It was clear that Tainui had had enough of you by this time. Her evidence was of your hand coming through the bedroom door, at which point Tainui got up and confronted you and said, “You wanna hold a knife to me nigger?” and you said, “Do you think I won’t do it” and a tussle began. Emitana said Tainui was ready to scrap as there had been a lot of aggravation during the evening. Whatever happened, it was quick and Tainui lay dying. Emitana rang 111 and told the operator he had been stabbed and you had done it, but she did not know what weapon was involved. The evidence was limited as to what happened in that small and narrow hallway where the fatal wound occurred, but there was pushing and banging.

[24]   She described the intensity of what happened there, that it was “angry”, “they were pushing, banging”. Emitana said that while you had your moments, in her words, “Tai loved his brother” and she thought you may have resented her relationship with him.

[25]   There was evidence that the sound of a knife was heard on the door to the lounge. The Police evidence was that there was a door knob there so a knife was not needed. There was also evidence the knob did not work and there was other evidence that a knife was used from time to time to open the door. In the end, I do not think this is important, as you clearly had a knife when you came to the bedroom door where Tainui and Emitana were in bed. You had no good reason to be there. You put your arm through the door and you plainly had the knife with you. They had gone to bed. In simple terms, when confronted by Tainui, you were drunk and you over reacted violently with the knife.

[26]   Evidence was given by neighbours who heard the confrontation, and a challenge was made by your counsel as to where you were when they heard the noises and the sounds from the house. I do not intend to sanitise the language that was used because it makes the evidence of what occurred unreal. The neighbours heard different things, either from inside or outside the house. One heard a male voice saying “Going to fucken kill you”, then “No fighting” from a female voice, “You fucken cunt, I’m

going to kill you”, “I’m going to fucken kill you. I’ll stab you in the throat”, and “Fuck, fuck fuck you’s and fuck them and fucken stab you in the fucken throat and all that”. This last remark came after a slamming door, so may well have been from outside the house, and after Tainui was stabbed in the hallway.

[27]   It is equally clear that you then went nowhere, and were heard to say “Fuck Fuck”, “What have I done?”, amongst other things. You sat on the step and did not flee. When the Police arrived, you told the police officer that your brother had fallen over and hit his head and gone to bed. But when you were told that your brother had died you were visibly upset and swore.

[28]   In deciding that you were guilty of murder, the jury will have placed weight on the evidence of the pathologist, Dr Martin Sage. He described the injuries, including a cut under your brother’s chin, and Mr McRae relates that to the evidence of a neighbour who heard “I’ll fucken stab you in the throat”. That may be the case or it could have been part of the blow or a glancing off his chin. Dr Sage described a single stab wound to the upper central left chest which passed centrally and slightly downwards through the space between the second and third ribs, cutting into the upper surface of the third rib, for half its width, then into the left chest cavity before it penetrated the membrane surrounding the heart. It perforated the great artery and blood was lost into the chest in catastrophic volumes, and the evidence is of two diverging thrusts, not of two separate entries. Not of two stabs. A single stab. This was not a repeated stabbing but one fatal wound. The jury found the stabbing was intentional and I think of most influence in that and the verdict was Dr Sage’s evidence that to cut through half the thickness of a rib requires “a very forceful blow to produce that cut through bone”.

[29]   These are very spare facts, not of a build-up to the use of the knife through violent confrontation but a seemingly messy background of aggravation, drunkenness and tension in the house, between you and Tainui. There was nothing to suggest escalation to murder, or even violent assault with a weapon. In that sense, it came out of the blue.

[30]   But it is very clear on the evidence and the reports before the Court, that it did come from somewhere and that is in your makeup, and your predisposition to violence, particularly when drunk.

[31]   Mr McRae, I agree, rightly urges caution about your account and refers to the psychologist’s report when you describe the events of the night, and in the darkness you could not see when your brother came up behind you and started pushing you, but when you spoke to the psychiatrist you said the offending occurred because you were disrespected by Tainui, having been locked out of the house, and you lost it over something seemingly minor. You told the psychiatrist that your use of the knife was unintentional, so the accounts you have given were different. I proceed on the basis of the jury having found you intended to stab Tainui, to cause him at the least serious injury, what is sometimes called reckless murder.

C.        YOUR PERSONAL CIRCUMSTANCES

[32]   I am now going to spend a few minutes on your personal circumstances which are of significant influence on the sentence that I will impose.

[33]   I will address the three reports before the Court, four reports including that by Ms Tuuta, the Cultural Report, because they reflect in the sentencing submissions made by Mr McRae with Ms Bennett, and Mr Rapley.

The PAC Report

[34]First of all, what is called the PAC Report made by the Probation Officer.

[35]   As I understand it, you turned 25 years of age the day the jury brought in its verdict of guilty. You say you affiliate to Ngati Tuwharetoa, but you have no contact with your home marae, runanga, hapu or iwi or any aspect of Maori culture, and at the time you were interviewed, you expressed no interest in Tikanga Maori. This attitude has changed as reflected in the Cultural Report made by Ms Tuuta, for which I think you should be grateful.

[36]   You have appeared regularly since your first appearance in the Youth Court at the age of 14, and the Probation Officer attributes your repeated offending to your abuse of alcohol and your very limited social skills. You are truly institutionalised at the age of 25 years of age and it is my view, you cannot function in the community for any length of time, although you function well in your assigned tasks in prison.

[37]   For many years, you have led an unstructured lifestyle and you have a strong predilection towards violence. Your risk of such offending is high, given your extensive offence history and your statistically high risk factors. The risk of your harming others is evident in the convictions you have already amassed in your still young life. This Report recommends intervention by a departmental psychologist if you are ever to achieve any meaningful rehabilitation.

[38]   At the time, you were living rough on the streets of Ashburton. You had no idea where your children were. You have been in your own words “in and out of prison” all your life, you have no community skills and in your own words you have become “too used to jail”. You said you have “no mates”, and denied gang affiliation, although Corrections records you as having been associated with a youth gang in 2015. You gave no explanation for your offending other than the rather chilling explanation that “It just is what it is”. You have spent most of your life on the street. You were fostered at 18 months, and you were said to have been abused, but I am careful not to attribute that to any particular carers as I do not know.

[39]   It will be hard for the community who try to comprehend this crime and you, that you just accept the way your life is and has always been, but that is, in my view, the product of your being raised without the effective nurturing all persons need. You are so much resigned to your life as it has turned out that you exhibit no sense of self-pity and no sense of entitlement. You just treat it as it is what it is in your own words.

[40]   You told a Police Officer you had no memory of the incident because of extreme alcohol use, yet there is a reason to question that, as I have said. You expressed no interest in counselling for alcohol and drug use, as you thought that was your problem which you can sort out yourself. I commend you for having taken the

courses that you have already, and you have achieved, which must be a signal to you that you have the ability to do things you have not previously been concerned about. They are achievements.

[41]   And when you said previously that you had no interest in counselling for alcohol and drug use as you think this is your problem and you can sort it out yourself, you have been proved tragically wrong, as you now know, and until you accept that and open your mind to the need for change, and another way of life with respect for others, you will undoubtedly remain in prison. For a start, you admit the ongoing temptation to use alcohol and drugs, which you cannot control. But, maybe now, you are on the way to learning that control. You are assessed as being very inward looking and that psychological treatment is essential, as Mr Rapley has submitted and I agree. One thing stands out from this Report, which will be important to Ms Reader for Tainui’s whanau, and that is your expression of extreme remorse for what happened, and that you will have to carry that for the rest of your life. It will be a beginning for them to read what you have written in a fine hand to express your remorse and distress at what has happened. They need to hear that from you. And the reason I say that is because the Victim Impact Statement comes from Ms Reader who has brought Tainui up and I want to refer to her and what she has told the Court.

Victim Impact Statement

[42]   Tainui lived with one family since birth and he has two sisters in that family. Ms Reader has committed her adult life to saving children from abuse and keeping them safe and she feels Tainui’s death means she has failed. She is unable to express the sheer loss and waste she feels by his early death. Tainui shared his deepest thoughts and feelings with her. She says he suffered abuse when young, but I want to say to Ms Reader she did not fail. He grew up to be a gentle, forgiving and caring man, a father figure to nieces and nephews, he loved them and he was loved in return.

[43]   You must know that when she wrote that report to the Court, she said she did not believe you will reform because since Tainui’s death you have not explained what happened or shown remorse to her and the whanau. Now, she will read what you have said, she will hear what you have said, and I hope you understand the importance of

that regret, remorse, towards that family, towards that whanau must be felt and anything you can do to make sure they understand that will help them get through this as well.

[44]   She says that Tainui tried to support you and his death “ripped the guts out of this large whanau”. For Tainui, Ms Reader was his Mum and she says as much a son as if he had come from her own body. She knew he had his issues, drinking and smoking “weed”, but he was a victim at the hand of someone he should have been able to trust. Now that was written before you wrote your regret and apology to the Court and to that family, to the whanau.

[45]   I now want to turn to the other reports because they each look at you in a different way.

Report from psychiatrist

Dr McLeavey

[46]   The first from the psychiatrist Dr McLeavey. This Report describes you as affiliated to Ngati Porou and Ngati Puhi. Whereas, I understand from your own account that is not the case, but you may affiliate to more than one iwi. It may well be in addition to Ngati Tuwharetoa to which you say you affiliate.

[47]   The Report says you declined to attend a screening assessment for mental health needs in 2016, and have had no medication for mental health during your remand in custody. You have not had enduring specialist mental health service follow-up in your lifetime, as you have no enduring mental illness, major mental illness at all.

[48]   You told the psychiatrist that you may have been affected by foetal alcohol syndrome and you described a dysfunctional upbringing with extreme deprivation from your earliest childhood, with neglect and abuse, and extreme inconsistency in parenting. There were some gang associations in your immediate family and you were exposed to violence, crime and substance abuse from a young age, so with limited parental guidance, your involvement with adults was with school, the Police, and

Child Youth and Family. Your longest foster placement was eight years. You grew up independently of your blood siblings for most of your childhood and adolescence.

[49]   You were diagnosed with ADHD at school. You displayed violence from your early primary school years and using the use of weapons, animal cruelty, truancy, conflict with teachers and peers, and use of drugs, and left school at 15. Most of the time since you have spent on the streets with links to a street youth gang. You have few enduring friendships or intimate relationships, but three children.

[50]   In the past, you were thought to meet the threshold criteria for diagnoses of oppositional defiant disorder, attention deficit, hyperactivity disorder, conduct disorder, but you have no feature of autistic spectrum disorder. Your own account is of mood shifts from low to anger without much provocation, and there is a history of frequent conflict with others.

[51]   You used cannabis and alcohol from late childhood and you choose alcohol. You have used petrol, butane, fly spray and air freshener. You do not take drugs intravenously. Long periods in custody have not rid you of these abusive habits and you have struggled to remain abstinent when inside, and revert to substance abuse within days of release, because of peer pressure. It must be tackled and you are now, it seems, prepared to do so.

[52]   It seems you first tried alcohol when you were seven years old, and you developed a habit of drinking until there is none left or you passed out, first feeling good, then becoming angry and wanting to fight, and you do not care with whom. You used to commit crimes when you were drunk, but this has been replaced with fighting, which you say you do not remember afterwards.

[53]   I conclude you have some recollection as you say you offended because you were disrespected by Tainui after being locked out of his home because of your behaviour, but I also conclude your actions were otherwise completely unplanned. You wanted to carry on partying, but after a verbal stoush with Tainui you ‘lost it”. It is revealing that you told the psychiatrist you felt powerless to reign in your anger due to your level of intoxication. You say you, as Mr Rapley submits today, that you

picked up the knife to pick a door lock, not to assault your brother. You thought wounding your brother was accidental through pushing and shoving, but the jury found otherwise, on strong evidence.

[54]   You said that your whanau have “disowned” you and “there’s no going back” and you have a heightened sensitivity to what you think is provocation, “a lifelong trait” in terms of a distrust and suspicion of others because you tend to read demeaning or threatening meanings into benign or innocent remarks or events.

[55]   Yet, you told the psychiatrist you are determined to make better choices if you find yourself in a similar position. You were contemplating abstinence from substance abuse, including alcohol, as you know what it does to your mental wellbeing. You have self-referred to the Drug and Alcohol Service and completed the two courses for which you are now certificated.

[56]   I note you interviewed well, you were comfortable, not distressed, and not hostile. You conveyed your thoughts to the psychiatrist, logically and coherently. You are not aggressive in prison.

[57]   Your combination of risk factors means you have posed, and right now pose a real risk of violence to others and you have limited support.

[58]I come to the psychologist’s report.

Psychologist’s report

[59]   This provides further insight into your personality, and deepens the Court’s concern about your propensity for violence, which you have used from an early age in your words to “keep yourself safe”, so that you did not have to follow anyone else’s rules.

[60]   You were involved with gangs from about 13 to 14 years of age, where you could make up your own rules. In foster homes, you learned to take care of yourself and not to turn to others if you were having difficulties, seeing family and friends only intermittently. One good relationship was with Tainui, but also with Ariana. You do

not tolerate those you think are trying to control you, which helps explain the failure of your personal relationships.

[61]   To the psychologist, you said you required medical attention for intoxication at 14, and by 16 you were drinking three days a week, until passing out or there was no alcohol left.   You  used cannabis from seven  years of age, twice a week since   16 years. You have tried other drugs. You describe numerous head injuries, for most of which you have not sought medical attention, nor do you consider you suffer any complications from those, but you lost consciousness on one occasion when you were hit on the head with a hammer when drinking.

[62]   You describe yourself as anti-social and worried about what others think of you, not liking it when people look at you. Of most concern, far in the way the most concern to the Court is that you acknowledge having what you call “outrageous thoughts” of physically harming and killing people who have done something to you, and you do not have these thoughts about people you do not know or who have not offended you. You say your use of violence is justified to resolve conflict with others, and you know you have a short fuse. You feel better when you have used violence and it is what is called instrumental and impulsive, but you say there is a time and a place for it, and you take revenge. Sometime it is not successful for you, but you say “It is what it is and I have never tried to do anything different”. Thus, by your own words, you are set in your ways, which include planned and unplanned violence. Your violence is learned behaviour, instrumental to get others to do things for you and you plan when to use violence against someone who has threatened or offended you. Your impulsive violence comes when you are caught off guard, and you think others are threatening, or disrespectful to you.

[63]   Accurately, I think, the Report describes you as a victim and perpetrator of violence from a young age and you have an extreme reliance on violence to resolve conflict with others and to regulate your emotions. Add to this your use of alcohol and drugs and this is a toxic mix, for the Court and Corrections to address.

[64]   You exhibit all the risk factors associated with re-offending, and you are strongly at risk of further violent offending should the many factors identified not be addressed.

[65]   So, I am encouraged to this extent, that despite all this, you say you want to engage with treatment and are motivated by the thought of being able to step back into the community one day. Your risk of re-offending is not likely to be reduced without treatment which addresses all these elements but it is cautionary for the Court and the public to understand that some of the programmes you need, specific to your offending, are only offered near the end of sentence, when you clearly have long term rehabilitation needs right now and rehabilitation will only be effective over time, to turn you away from the precipitating factors of violence and substance abuse.

Cultural Report

[66]   I have found the Cultural Report made under s 27 of the Act, by Ms Tuuta, extremely helpful, indeed enlightening.

[67]   Under s 27, an offer may request the Court to hear a person on personal, family, whanau, community, and cultural background of the offender and anyone can speak in this regard, on your behalf, this has come through Ms Tuuta who was asked by the Court to make the Report and has done so with commendable thoroughness.

[68]Under s 27:

27 Offender may request court to hear person on personal, family, whanau, community, and cultural background of offender

(1)If an offender appears before a court for sentencing, the offender may request the court to hear any person or persons called by the offender to speak on—

(a)the personal, family, whanau, community, and cultural background of the offender:

(b)the way in which that background may have related to the commission of the offence:

(c)any processes that have been tried to resolve, or that are available to resolve, issues relating to the offence, involving

the offender and his or her family, whanau, or community and the victim or victims of the offence:

(d)how support from the family, whanau, or community may be available to help prevent further offending by the offender:

(e)how the offender’s background, or family, whanau, or community support may be relevant in respect of possible sentences.

…

[69]   I will refer to the Report in the context of submissions, but I want to mention its reference to early life environmental influence, and that Maori children placed in what is now Oranga Tamariki care are more likely to enter the justice system than those who are not. This may, for all I know, apply to Pakeha and other ethnicities so  I do not take much from that of itself. Mr McRae is right that the Report does not provide for a basis of discounting of a sentence, although any such report may identify personal factors which are mitigating personal to an offender. But it may mitigate culpability in some cases, and an example is given where someone has strong identification as Maori and thus for example protects an elder in the context of an assault, or something that constitutes an offence. But here, the Report is relevant to understanding you and directing a rehabilitative pathway. I agree with Mr McRae and I agree with Mr Rapley, this is the light in front of you if you choose to follow it.

[70]   As you were placed in what is now, Oranga Tamariki at 18 months, those who cared for you had no background knowledge of you, your whanau, your whakapapa, or your culture, but rather they were several Pakeha families. You have had no real life experience within your whanau, and contact with your parents was occasional.

[71]   You do not know why you and Tainui have different names when born of the same parents. When you met him for the first time, you felt an “instant connection” and knew something was there, stronger than with anyone, along with Ariana. You are unaware of your whakapapa, your marae or your tipuna and have not been exposed to Tikanga Maori.

[72]   You have thus lived a life of very limited personal relationships, with few boundaries and I conclude you do not really know what a whanau is or means as you

have not experienced it. You have kept to yourself, looked after yourself, because you believe no one else would.

[73]   Within Te Ao Maori there are four sides representing the health of your whanau, and your spiritual, physical and mental health, and if one side is missing, or with those dimensions not in balance, you are in Maori terms “unwell”. Without connection to your whanau, hapu or iwi, you are a “non-person” in Maori epistemology.

[74]   From this Report, I conclude there has been no cultural reference point to ground you at all, and Ms Tuuta says that given your lack of knowledge of Maori culture, and being Maori, there may be benefit in a programme to resolve issues within your whanau. You are, like so many others, unsure of your position as a young Maori, and that affects the way you view yourself and relate to others, and you heard Ms Tuuta this morning talking about looking back in your heritage, in your whakapapa, to identify the people you should be looking up to, back to and up to. You now say you would like to learn from how and from whom you have come. I conclude from what I have read that the fostering of your Maori identity, to acknowledge your whakapapa and your tipuna, would benefit you greatly. That support is recommended, alongside psychological trauma support counselling and rehabilitation, and it is suggested you might engage with a kaumatua from your iwi, to explore and learn your whakapapa, and I hope you are are truly willing and interested to do so. And I think it is telling that you said to Ms Tuuta that you want a relationship with your children and you want to share your whakapapa with them. I commend you.

[75]I take this from the Report:

Facilitating an offender’s knowledge of and connection with pro social Maori identity can be a powerful motivation for change, and a sense of direction, importance, belonging and worth.

[76]   I think the connection would be highly beneficial to you and thus society. There is a void in your life, as you have been deprived of what all children should know and feel, the embrace and guidance of whanau and iwi, in Maori and other societies.

[77]   So, cultural information must be considered by the Court when sentencing, and s 8(i) of the Act is to ameliorate the over representation of Maori in prison, and to encourage judges to adopt a restorative approach in sentencing. This Report is significant. It has been said by His Honour Judge O’Driscoll in the District Court that s 27 of the Act is one of the most under-utilised and unknown provisions of the Sentencing Act, and in  my view,  it squarely bears on the sentence in  your case.      I incorporate this material in the application of the three strikes regime.

D.        APPLICATION OF THE THREE STRIKES REGIME The first strike warning

[78]   The “first strike” warning, Stage 1 offence, was the result of your being convicted and on 17 August 2015, being given a “first strike”, or Stage 1, warning after you pleaded guilty to a charge of wounding with intent to injure your partner when you were intoxicated. You struck and lacerated her head with a metal broom handle and personal aggravating factors meant an uplift of six months and a guilty plea credit resulted in a sentence of one year and 11 months imprisonment. The Judge gave you the “first strike” warning, that if you were convicted of a serious violence offence, other than murder, and imprisonment was imposed, you would serve that sentence without parole or early release, but if of murder, you must be sentenced to life imprisonment without parole unless it would be manifestly unjust, in which case a minimum term of imprisonment has to be imposed. A life sentence without parole is often described as a “whole of life sentence”.

[79]   For a Stage 2, “second strike” offence of murder, which is what you face, the Court of Appeal in R v Harrison,2 has directed these steps:

(1)The first step, the starting point is life imprisonment without parole, a whole of life sentence.

(2)Next, the appropriate sentence is first determined by the standard application of the Sentencing Act 2002, under ss 102

2      R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [109] – [110].

to 104. It may include a sentence of life imprisonment without parole but it involves comparison with other sentences for murder.

(3)Once the appropriate sentence is decided under Step 2, the Court steps back and in the third and final step, Step 3 is to recognise the statutory presumption of a whole of life sentence, and decide whether it would be manifestly unjust and grossly disproportionate to the sentence reached under the second step, given your circumstances and the circumstances of your offending. So, this comes at the end of the sentencing exercise.

[80]   Let me acknowledge now that  as Mr Rapley submits and  Mr McRae and  Ms Bennett for the Crown concede, with reference to the facts of this case and your circumstances and other cases, a whole of life sentence would be manifestly unjust for two reasons. The first is your degree of culpability, and your relative youth. Your counsel made that submission. If it would be manifestly unjust, as I so find, a life sentence with a minimum non-parole period of at least 10 years applies. No one in New Zealand has been sentenced to a whole of life sentence under s 86E of the Act, which applies in your case.

[81]   The death of your brother seemingly came out of nothing, as I have said, but is now shown to derive from your reaction when drunk, your state of aggravation, and your pre-disposition then to use violence when you think you are being confronted or challenged in some way, even by someone you love. This case has none of the characteristics of a prolonged attack or deliberate and calculated killing. This was a single knife wound, in an incident which lasted less than a minute.

[82]   Here, a minimum period of imprisonment of at least 10 years must apply, and on some occasions a minimum of 17 years may apply where the murder was committed with a high degree of brutality, cruelty, depravity or callousness, or the victim was particularly vulnerable because of age, health or any other factor.  I do  not consider this is a case where a 17 year minimum term must be imposed and I am grateful, as you should be, for the reasoned stance of the Crown taken through

Mr McRae and Ms Bennett, and the submissions of Mr Rapley who agree on this. None of the distinct features which warrant a sentence of a minimum term of 17 years apply in your case.

Step 2

[83]   So the task under Step 2, is to fix the minimum term, and whether more than the 10 years minimum is required to achieve the purposes of s 103(2) of the Act which reads:

[(2) The minimum term of imprisonment ordered may not be less than 10 years, and must be the minimum term of imprisonment that the court considers necessary to satisfy all or any of the following purposes:

(a)holding the offender accountable for the harm done to the victim and the community by the offending:

(b)denouncing the conduct in which the offender was involved:

(c)deterring the offender or other persons from committing the same or a similar offence:

(d)protecting the community from the offender.]

[84]   It must be the minimum of imprisonment the Court considers necessary to satisfy all or any of the following purposes. They are, holding you accountable for the harm to the victim and the community, denouncing your conduct, deterring you or other persons from committing the same offence, or something similar, and lastly and most importantly, protecting the community from the offender in this case, you.

[85]   Mr Rapley submits that 10 years is sufficient for reasons you heard expressed in Court. The Crown submits, and I agree, that while you must be held to account, and there must be denunciation and deterrence, the most relevant purpose in fixing the minimum term is the protection of the community under s 103(2)(d). that is why the Crown seeks a sentence of life imprisonment with a minimum non-parole period of between 11 and 12 years, thus more than the minimum of 10.

[86]   Mr McRae says when the neighbour heard the words “I’m gonna fucken kill you” spoken loudly or angrily and then the other voices, you were threatening your brother. I conclude that after you were pushed out of the house, you continued to

speak violently and loudly about stabbing someone, in this case your brother, in the throat. You were highly agitated and Mr Witehira heard the words “I’ll fucking stab you in the fucking neck you fucking cunt”. You were highly agitated and you had in your mind stabbing in the throat, whether before or after the fatal wound, or both. So, the aggravating features of the offending are the threat of and the degree of violence in the use of a knife by a single and forceful stab wound to the chest, with its fatal consequence.

[87]   Your personal aggravating features which Mr McRae has referred to, include some convictions in the District Court, including that which resulted in the “first strike”, Stage 1 warning. You have other offences which involve violence including assault in various degrees, but nothing as serious as that which led to the first strike warning or of course this case. There are a lot of other convictions for non-compliance with directions of the Court, and these are relevant to the prospect of rehabilitation, particularly as you were released from the first strike sentence and you offended five times [months] later while you will still subject to the release conditions when you left prison.

[88]   As the Court of Appeal explained in the case of Robertson v R,3 the Court must compare  your culpability with other cases of murder that attract  the minimum  of  10 years, which is the benchmark, and the Court then decides whether an additional period is needed to satisfy the purposes I have referred to. The Court refers to other sentencings to achieve consistency. The minimum term is fixed primarily by the circumstances of the offence, but the principles in s 8 of the Act, and aggravating and mitigating factors should be taken into account.

[89]   I agree with the Crown, that the amendments to the Sentencing Act mean that a higher minimum term must be imposed if the Court considers it necessary to protect the community, and that was not a purpose of former sections, so that principle will now apply to more cases. When considering other sentencing, this this must be recognised in order to achieve consistency of approach.

3      Robertson v R [2016] NZCA 99.

[90]   Mr McRae and Mr Rapley both referred to the case of R v Walsh,4 where the appellant pleaded guilty to murder after stabbing a dinner guest from behind, stamping on his head, and dragging him across the road, all in the presence of the victim’s son. A minimum period of imprisonment of 13 years was imposed, and on appeal 11 and a half years. The Court there recognised the amendment to the Act indicated a higher minimum term will be imposed if the Court considers that necessary to protect the community from the offender and this has application here.

[91]   The Crown refers to R v Hei Hei,5 where the defendant pleaded guilty to the murder of his younger brother after drinking alcohol, bickering about their mother, then fighting in the kitchen and the defendant picked up a large knife and stabbed his brother six times in the back. This was a second strike murder, and reflecting the spirit of this legislation, the first strike was an indecent assault for which he received home detention. The fight was spontaneous, as in your case. There was nothing to suggest the defendant would act in this in the future, which plainly does not apply to you given the extreme risks that you clearly pose. His criminal history was that of a burglar who offended against female victims under the influence of alcohol, and if a whole of life sentence was imposed at 31 years of age, that in that case, as the Court held, would have been longer than any sentencing under the standard sentencing regime. A life sentence with a minimum non-parole period of 10 years was imposed.

[92]   In R v Daken,6 the appellant was sentenced to life imprisonment with a minimum non-parole period of 10 years for the murder of his brother. They were living at a family farm and had an up and down relationship, often arguing and abusing each other, sometimes scrapping. So, there are shades or echoes of the relationship that you had with Tainui. The victim began striking the appellant with a poker and threatened to kill him and he got his knife out of his pocket and stabbed his brother multiple times. There was an element of self-defence, unlike your case. The minimum non-parole period of 10 years was upheld.

4      R v Walsh (2005) 21 CRNZ 946 (CA).

5      Crown v Hei Hei [2017] NZHC 2243.

6      R v Daken [2010] NZCA 212.

[93]   You were 23 years at the time of this offence when Tainui died. You were not a youth, but you were still a relatively young man and as Justice Cull has recently commented in the case pf R v Puna, a very lengthy term of imprisonment such as life without parole on someone of your age would have a crushing effect. Your regret and remorse relayed to the Court will help Tainui’s whanau and perhaps help them and the community understand where this familial whanau setting has all come from. But as Tainui loved you, and you had a real connection with him, as close to him as anyone in your life, I accept his death will undoubtedly impact on you throughout your life and I am heartened to read in your handwritten letter to the Court that you know his death will undoubtedly impact on you throughout your life and you also know that you owe it to him and his whanau to honour him by making a decision to change your life.

[94]   Mr Rapley is therefore, I am certain, right that there is a light in your future for you and society. It will be because you get significant professional help and that you are prepared to take it. I think it is entirely possible a door may now open to you, to know and value your culture and heritage, to give you the sense of identity and place which will be critical for you to function in prison and in the community, should you be you paroled.

[95]   As Mr Rapley said, it must be emphasised that when deciding the minimum term that the sentence of life imprisonment means you will be subject to recall if you are paroled, for further infractions great or small for the rest of your life. For you, and for the public, a minimum period of imprisonment is just that, and you will not be eligible for parole until the minimum term is reached and you will not likely be paroled unless there has been a reversal over these years to come of your substance abuse and propensity to violence. There are current examples of those who have remained in custody for many years after eligibility for parole under the sentence imposed on them. So, getting to the end of minimum term of imprisonment is the point at which you are eligible to make application for parole, but it does not mean you will get it. That now is largely in your hands and in the hands of those who will work with you, I hope, from the time you commence your sentence.

[96]   I have reached the view that, having regard to authority, and the circumstances of your case, I should adopt a minimum non-parole period beyond 10 years, in this case 11 years, as you were violent here, to an unprotected and drunk Tainui, and there is such a flash point in your use of violence that it must be at that higher end, according to the Crown’s submission, for the protection of the public.

[97]   That is in fact the sentence I will be imposing, but I now have to say why under Step 3 I will not be imposing a sentence of life imprisonment without parole.

Step 3

[98]   I decided it will be manifestly unjust and grossly disproportionate to impose a whole of life sentence, relative to the sentence of 11 years. This step involves my thinking and considering the circumstances of the offending and your circumstances.

[99]   The Court of Appeal has said this is an intensely factual enquiry.7 First to recognise it is a Stage 2 as opposed to a Stage 3 murder, reflecting a single warning at the first strike for a lesser, but still serious offence.

[100]   Harrison was a Stage 2 murder in the middle range of culpability and the qualifying offence was at the lower end of the scale of seriousness. The offender was not subject to the deterrent effect of a first strike warning in that case, and his other offending was not treated as the basis for an imposition of life sentence without parole. He was becoming more pro social and at 44 his re-offending may have been in decline, as he aged, so the minimum term of 13 years was upheld on appeal.

[101]   In R v Turner,8 the offender was 29 years and a whole of life sentence meant he would spend 50 years in prison, assuming standard life expectancy as Mr McRae explained, and he had a range of physical and mental health disabilities. It was held manifestly unjust to impose life imprisonment without parole. Therefore, I accept the Crown’s analysis of this:

(a)This was a Stage 2 murder rather than a Stage 3.

7      R v Harrison , above n 2.

8      R v Turner [2015] NZHC 189.

(b)You are 25, now 25, but 23 at the time Tainui died, and you would likely serve over 56 years in prison and the longest minimum non-parole period in New Zealand ever imposed is 30 years in the case of R v Bell.9

(c)You would otherwise be subject to a minimum non-parole period of between 11 years as I have found, were it not for the “three strikes” regime.

(d)You have no relevant mental health condition. Your age is not of much relevance in my view, except looking forward to the length of the sentence, and there was no guilty plea, but I accept you were warranted in going before a jury, as there were available verdicts of murder and manslaughter depending on the jury’s factual conclusions.

(e)As I have said, there is no evidence to suggest you did not understand the implications of the “first strike” warning. However, I question whether the strike warning registered and had any effect at all, given your propensity for violence when drunk and when you feel challenged. The warning you get today Mr Alexander must register with you.

(f)I conclude that the murder is at the lower end of the culpability spectrum for this crime and as I have said, it would result in a likely minimum of 11 years minimum non-parole period.

(g)The consequences of the “first strike” are recognised as serious in the wounding of your partner.

[102]   I have regard to your regret and remorse, now expressed and I recognise that Tainui, as you say, with Ariana, was the most important member of your whanau.

[103]   I think there is something in what Mr Rapley has said that there is some faint sign of insight into your predicament by you and there is some very frank self-awareness. You have been open in your discussion with the reporters to the Court

9      R v Bell (CA80/03, 7 August 2003).

in explaining why you erupt, how you use violence and why you are violent, and it gives the people who are experts something to work on.

[104]   While you have written yourself off in a real sense, if you engage with counselling and with your Maori culture, I think there is a different pathway for you. If you take it, you will avoid the likely other path which is to spend the rest of your life in prison. I rely on others for my observation that finding your cultural identity is your pathway to a different world than crime, alcohol, drugs and prison, in which you have lived for so long.

[105]I have concluded therefore a whole of life sentence would be manifestly unjust.

[106]   I want to repeat, you show no signs of mental disorder, no mental disability, but rather, your tragic upbringing has resulted in an anti-social personality disorder. Your isolation, your lack of knowledge of tikanga, emerge from the Report and I think that Mr Rapley is quite right that it is “insightful and makes for sad reading”. It is the lack of your Maori culture and heritage which is a standout feature which I bring to account.

[107]   This is not to allow a discrete discount for your deprivation because of the Cultural Report references, but it points the way forward.

[108]   So, I conclude in this way. My caution  to  you  is  not  just  to  you  as  Jayden Alexander, but to you for the community. You have to understand that that which is inside you, your predisposition to violence in such unthreatening settings and your use of violence just to get by, must be recognised by you and it must be addressed by you to avoid spending the rest of your life in prison. I know that depends on the rehabilitation available to you, your interest in that, and your follow up, and the support of people who believe in you. You have to believe in yourself, and to do that you must find yourself, and the path lies before you.

[109]   So, I hope this sentencing is of relevance and a reference point for Corrections and the Parole Board in due course because they will see that the risk of re-offending

is so high unless the issues addressed in this Court today, and in the sentencing, are addressed in the time of your imprisonment.

[110]   I agree with Mr McRae that these reports will be of considerable assistance to the prison authorities managing you and I do help the urgings of this Court, supported by the Cultural Report, are addressed in the same way by Corrections. Here is the possible and powerful motivator for change to give you direction, importance and self-worth.

[111]   So, before I come to the actual imposition of sentence, I am now bound, on having entered the conviction, to give you a final warning for a Stage 2 offence as follows.

Final warning pursuant to s 86E(6) Sentencing Act 2002

[112]   This is your final warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences, which lists the “serious violence” offences.

[113]   First, if you are convicted of any serious violent offence except murder or manslaughter, you will be sentenced to the maximum term of imprisonment for that offence, to be served without parole unless that would be manifestly unjust.

[114]   Second, if you are convicted of manslaughter, you will be sentenced to imprisonment for life. The Judge must order you to serve at least 20 years imprisonment unless the Court considers it would be manifestly unjust to do so, in which case there must be a minimum term of at least ten years imprisonment.

[115]   Thirdly, if you are convicted of murder again after this warning then you must be sentenced to imprisonment for life. The Judge must also order you to serve the sentence without parole unless it would be manifestly unjust to do so, and if the Judge does find it manifestly unjust, the Judge must impose a minimum period of imprisonment of 20 years at least, unless that would be manifestly unjust in which case the Judge must sentence you to a different minimum period of imprisonment.

[116]   Finally, if you are sentenced to preventive detention, you must serve at least the maximum term of imprisonment of the most serious offence of which you are convicted unless a Judge considers that would be manifestly unjust and the Judge must then specify the minimum term of imprisonment.

[117]A written will be given about this warning when you leave the Court today.

E.         SENTENCE

[118]Mr Alexander would you please stand.

[119]   On your conviction for murder, you are sentenced to life imprisonment and to a minimum period of imprisonment of 11 years. You may stand down.

[120]   I would like you to remain in the Court while I make some concluding remarks to other people involved in your case.

F.         CONCLUDING REMARKS

[121]I want to these remarks to counsel and to those in court.

[122]   The Police had to investigate and with the Crown adduce a good deal of evidence in a very difficult evidential setting where there was little direct evidence of the allegation of murder. In my view, they did so in a thorough and, if anything, an understated way. It was not a case where the prosecution pressed for a conviction but simply put the matter before the jury in a very even-handed way and I commend the Police and  the prosecution for the investigation  and  presentation of the  case and    I address that to the officers in the investigation and Crown counsel, Mr McRae and Ms Bennett.

[123]   Secondly, Mr Rapley you with Mr Bradford represented Mr Alexander with a degree of sensitivity for the tragedy of this case which underlies it, and you left no stone unturned in your examination of the evidence and in the economy and cogency of your submissions on Mr Alexander’s behalf.  You  did  a  fine  job  and  I  hope Mr Alexander recognises that.

[124]   This trial in its brotherly and whanau setting has engendered strong emotions and great grief. I want to commend those broadly of the whanau, some of whom are in court today, for your restraint in court during the conduct of the trial. I am conscious of the quiet influence and the hands of the security officers who have assisted in this, and I want to acknowledge you for the behaviour in this very difficult setting.

[125]   This is another example of a jury painstakingly and attentively going about its work and disruptions in the trial process which could not be helped, were tolerated by the jury in an undemonstrative way.

[126]   These acknowledgments are intended to reflect my appreciation of the way in which the Court’s business has been dealt with, assisted here by the experience, the competence and the restraint of the officers of the Timaru Court.

[127]I ask you to stand down Mr Alexander.

[128]Thank you. I will retire.

……………………………………

Nicholas Davidson J

Solicitors:

Gresson Dorman & Co., Timaru Paul Bradford, Barrister, Ashburton

James Rapley, Barrister, Christchurch