R v Bax - [2018] NZHC 411

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2016-029-000890

[2018] NZHC 411

THE QUEEN

v

MARCUS BAX

Hearing: 13 March 2018

Appearances:

M B Smith and W McNeil for Crown

A B Fairley and A Harvey for Defendant

Sentence:

13 March 2018

SENTENCING NOTES OF WYLIE J

Solicitors/counsel:
Crown Solicitors, Whangarei Thomson Wilson, Whangarei

R v BAX [2018] NZHC 411 [13 March 2018]

Introduction

[1] Mr Bax, you appear for sentence today, having pleaded guilty to the murder of Peter Nilsson at Te Kao on 4 August 2016.

[2] A conviction has been entered and the Sentencing Act 2002 requires that you must be sentenced to imprisonment for life, unless it would be manifestly unjust to do so.1 If I impose a sentence for life, then the legislation, in most circumstances, requires me to impose a minimum term of imprisonment of not less than 10 years.2 However, s 104(1) of the Sentencing Act outlines a number of circumstances which, if made out, require a minimum period of imprisonment of 17 years or more, unless such a sentence would be manifestly unjust.

Relevant facts

[3] You lived at a rural address in Te Kao with the adult daughter and son of the deceased. The daughter’s partner also lived at the address.

[4] The deceased was 77 years old. He lived a few kilometres away from you and other family members.

[5] At about 9.30 pm on 4 August 2016, you left home. You had been at home during the evening hours and you had shared a meal with the others present. You drank some beer before leaving the address.

[6] You returned a short time later. You were covered in blood and you were holding a butcher’s knife. You told the deceased’s daughter and son that you had just slit their father’s throat. You asked for their help in destroying the evidence. For example, you asked them to use bleach to clean blood from you and to help you burn your clothing. Fearing for their own safety, the deceased’s daughter and son agreed to assist.

1 Sentencing Act 2002, s 102(1).
2 Section 103(2).

[7] The daughter asked her partner to go to the deceased’s house and see what had happened. The partner drove to the deceased’s house. He found the lights on and the front ranchslider door open. He entered the house and looked in the deceased’s bedroom. He saw the deceased lying on his back in his bed. The deceased was unresponsive. The covers were pulled up to his chest and his face was white. There was blood on the blankets close to his face.

[8] The partner returned to the house and told the deceased’s daughter what he had seen. She then called the police.

[9] While waiting for the police to arrive, you made various admissions to the deceased’s daughter and son. You said that you had killed their father because you thought he had been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bax

Details

AGLC: R v Bax [2018] NZHC 411
Case: [2018] NZHC 411
Decision Date: 13 March 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Marcus Bax was sentenced for the murder of Peter Nilsson, committed on 4 August 2016. The central legal issues involved determining the appropriate minimum term of imprisonment, considering the circumstances outlined in Section 104 of the Sentencing Act 2002. Specifically, the court had to decide if Bax's actions involved unlawful presence in a dwelling, high levels of brutality and callousness, and if the victim was particularly vulnerable.

The court concluded that Bax's actions involved unlawful presence in the victim's dwelling, as his presence became unlawful upon initiating the attack. The murder was also deemed highly brutal and callous, involving significant premeditation and a degree of vigilantism. The elderly victim, found unarmed in bed, was considered particularly vulnerable, which further supported the severity of the crime. Given these factors, the court found that a minimum term of imprisonment of 17 years was warranted, but decided against it due to Bax's genuine remorse, his guilty plea entered at an early stage, and his lack of prior violent offending. Consequently, the court imposed a sentence of life imprisonment with a minimum term of 15 years.

Orders