R v Beerens
[2018] NZHC 2669
•16 October 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2018-009-720
[2018] NZHC 2669
THE QUEEN v
VIRGINIA MARIA BEERENS
Hearing: 16 October 2018 Appearances:
C Lange for Crown
J Lucas for Defendant
Judgment:
16 October 2018
SENTENCING REMARKS OF MANDER J
Introduction
[1] Ms Beerens, you are for sentence today on a charge of attempted murder. You pleaded guilty after I provided a sentence indication on 8 August this year.1 I now need to formally record that you are convicted on that charge.
Three strikes warning
[2] Because you have been convicted on a charge of attempted murder you are now subject to the ‘three strikes’ law. The Sentencing Act requires me to give you a warning of what the consequences will be should you commit another serious violent
1 R v Beerens [2018] NZHC 2014.
R v BEERENS [2018] NZHC 2669 [16 October 2018]
offence. You will also be provided with the warning in writing, along with a list of these serious violent offences.
[3] The warning is this: If you are convicted of any one or more serious violent offence, other than murder, committed after this warning and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event, the Judge must sentence you to a minimum term of imprisonment.
The offending
[4] I turn now to the circumstances of your offending for which you are for sentence this morning. Prior to the offending you were in a relationship with the victim, Mr Han. You separated in mid-2017, and at the time of the offending he had a new partner. On the morning of 22 January of this year, you were intoxicated and formed an intention to kill him.
[5] You went to his place of work to make sure he was not home, and when you saw his car there you drove to his house. When you arrived, you were let in by his flatmate who knew who you were from the previous relationship with Mr Han. You went into Mr Han’s room, selected a number of items of his property that had special meaning to him, such as notes and gifts from his new partner, and set them alight on his bed with a cigarette lighter you found in the room. Before leaving the address and after watching the fire in Mr Han’s room take hold, you took a knife which you knew Mr Han regularly sharpened.
[6] Later in the day you again went to Mr Han’s place of work, hoping that he had been alerted to the fire and gone home. After establishing that he had left work for home, you returned to his address. Members of the Fire Service were extinguishing the fire you had started. You approached Mr Han, and after a short verbal exchange flicked open the blade of the knife. In one motion you struck him in the chest, driving the blade in as far as it would go. You withdrew the blade, and dropped the knife, before being restrained by members of the Fire Service.
[7] The wound narrowly missed Mr Han’s heart. When struck he instantly dropped to the ground, clutching his chest, bleeding profusely. He was admitted to hospital in a critical condition and underwent surgery.
[8] You expressed to police your frustration that your attempt to kill Mr Han had been unsuccessful, but refused to tell them why you wanted to bring about that result.
Victim impact statement
[9] Mr Han sustained a most serious wound, and came very close to death. The blade of the knife came within five millimetres of Mr Han’s heart and would undoubtedly have been fatal had it struck his heart. As a result of the emergency surgery, he has been left with a 20 centimetre scar running the length of his abdomen. You have also heard about the significant and understandable emotional harm he has suffered from being the subject of your attack, as set out in his victim impact statement.
[10] I am grateful to Mr Han for the insightful and balanced statement he has provided in his victim impact statement. If you truly wish to make some amends for the harm that you have caused, you will, as Mr Han urges in his statement, take up the opportunities to address the issues that lie behind your offending while serving your sentence and seek to rehabilitate yourself. In the letter you have provided to me through your counsel, you have committed yourself to such a course. I can only today impress upon you the importance of following that path, as you say, “to fix yourself”.
Pre-sentence and psychological report
[11] From your actions and the intent to kill which you vocalised at the time of the offending, the pre-sentence report writer presently assesses you as presenting a high risk of harm. You are assessed as a moderate risk of reoffending largely because you are yet to engage in treatment or address the traumatic experiences from your past which are likely to be at the root of your difficulties.
[12] During the interview with the report writer you acted out much of the offending step by step and were able to articulate what you were thinking and feeling at the time, this suggests you were conscious and coherent despite the amount of alcohol in your
system, and your statement that you ‘blacked out’ for much of the day. The report writer noted that it was hard to assess the depth of your insight into the effect your offending has had, and your level of remorse. You said you regretted ‘picking up the first drink’, but it is reported that you deflected further discussion of the topic. After some prompting, you acknowledged that Mr Han may have feared you as a result of your actions.
[13] You maintained your actions were not motivated by jealousy but instead by a combination of anger and a feeling of betrayal. You claim you were concerned for the wellbeing of other women who had formed relationships with your victim. The report writer concludes that in fact you were fixated on his relationships and unable to regulate your own emotional response to the breakup.
[14] The letter you have provided to me attests to you having achieved some insight into the effects of your offending and the harm you have done. I sincerely hope that is the case.
[15] Dr Monasterio, a consultant psychiatrist, has prepared a report at the instigation of your counsel to assist with the sentencing process. He attests to your long history of severe alcohol dependence, which I accept was a significant factor in your offending. Since your early twenties you have been in the habit of drinking large amounts of alcohol over sustained periods which are interspersed with periods of abstinence lasting up to six months. You have been admitted to rehabilitation programmes four times, and have attended Alcoholics Anonymous intermittently since 1999.
[16] The report also records your abusive upbringing. You were ‘kicked out’ of home at age 15 without any formal qualifications. Letters from family and friends which are also before me have provided me with much detail about your difficult background. Your older sister tells of how the family was “always on edge” as you were growing up because of your physically and emotionally abusive father. Your brother died prematurely from his alcoholism which your sister says was similarly triggered by the abusive home situation you experienced.
[17] In 2017, you admitted yourself to Hillmorton Hospital following an overdose of paracetamol in the context of heavy alcohol use and a relationship break up. You admitted yourself there on one other occasion when you were suicidal following relationship difficulties and heavy alcohol use.
[18] You told Dr Monasterio that leading up to the offending you had been drinking 2-3 litres of wine per day for 11 days. You had not slept at all that night before the offending, and at 4:00 am you took antipsychotic medication prescribed for insomnia. You told him that your recollection of events was “patchy”, though you accept the summary of facts is correct. You say you are “very surprised” at your behaviour as you have no history of violence, use of weapons, or setting fires.
Starting point
[19] In providing you with a sentence indication I took a starting point of eight years’ imprisonment. It is necessary for me to say something more about how I arrived at that figure which I again intend to adopt today.
[20] There is no guideline judgment for attempted murder. The starting point for such offending is usually set by reference to the Court of Appeal’s decision in a case called R v Taueki, with the rider that the charge of attempted murder involves the more serious state of mind of an intention to take a person’s life.2
[21] Three of the aggravating features listed in Taueki are present in your offending. Namely, the use of a weapon, the infliction of a near fatal injury, and premeditation. I acknowledge Mr Lucas’s submission that the infliction of a serious injury is very often the result of an attempt to murder and that Mr Han has made a full recovery. Nevertheless, the injury you inflicted was very nearly fatal, and lasting physical scarring, if not emotional damage, has been suffered by him.
[22] You did not act in the spur of the moment. The sequence of events involved you moving between Mr Han’s home and workplace as you sought your victim out. The effect of alcohol on you provides some explanation for your behaviour but you
2 R v Taueki [2005] 3 NZLR 372 (CA).
had formed an intention to kill Mr Han earlier that day and not simply at the pivotal moment you inflicted the wound. As a matter of law, the voluntary consumption of alcohol cannot mitigate your actions.3
[23] The Crown has submitted that your attack constitutes, or leastwise did submit that your attack constituted an act of extreme violence and that this is a further aggravating feature. However, at the sentence indication, I accepted Mr Lucas’s submission that cases where that has been recognised as an aggravating feature tend to involve what are described as “frenzied attacks”, where there has been multiple wounds inflicted or there has been a prolonged ongoing assault. Although aimed at the heart, in my view, a single blow with a knife, which demonstrates your deliberate intent to fatally wound your victim, is not of itself sufficient to engage that particular aggravating feature.
[24] The Crown also submitted that the attack was akin to a home invasion given that it happened outside Mr Han’s house on his property. However, in the circumstances, particularly with other persons present in the front yard, I do not consider the offending gives rise to the particular concerns which result in it falling into that category of case.4
[25] Counsel have helpfully referred me, or did refer me to a number of sentencing decisions to which I have had regard in setting your sentence. In particular, I note the cases of R v Wyant and R v Yu5 which, in my view, most closely match your culpability.6
[26]As I say, I consider an eight year starting point is appropriate.
3 Sentencing Act 2002, s 29(3).
4 R v Wyant [2015] NZHC 3076.
5 Police v Kendall [2012] NZHC 2908; R v Hemopo [2014] NZHC 2950; R v Wyant [2015] NZHC 3076; R v Yu [2015] NZHC 89; R v Shim [2016] NZHC 1912; R v Masoe HC Wellington CRI- 2006-091-352, 15 September 2006; R v Fotuaika HC Whanganui CRI-2008-083-73, 22 October 2008; R v Ae [2016] NZHC 965.
6 In Wyant, the offender had been drinking and using ecstasy. She loaded a gun, got into her car, and drove to the house of the victim. She fired a single shot at the victim, which struck him in the chest. She then attempted a second shot but the firearm malfunctioned and the victim was able to wrestle it off her. In R v Yu, the offender posted on social media the day before the offending that she wanted to kill her daughter in law. She went to a property where the daughter in law was and inflicted a single stab wound to her chest. The victim fled, and the offender gave chase and stabbed her once more. In both cases an eight-year starting point was adopted.
Personal factors
[27] I turn now to other factors which may potentially bear on the sentence that should be imposed.
[28] The Crown realistically does not seek any uplift for your previous criminal record, which is limited.
[29] Mr Lucas submitted a discount should be applied to recognise your personal circumstances, including your alcohol dependency, mental health issues, and difficult background. The Crown acknowledges your difficult personal circumstances and I accepted that a five per cent discount should be applied to reflect those factors personal to you which are traversed in Dr Monasterio’s report and in the other material filed in support of you. Restorative justice has not at this stage been able to be pursued but I acknowledge your willingness to engage. I also acknowledge the letter that you have provided to me in which you express your remorse, but I have taken into account the pre-sentence report writer’s comments in the formal report he has provided to the Court and I do not consider I can make any further reduction for the issue of remorse.
[30] As to the guilty plea, Mr Lucas submitted at the sentencing indication hearing the full 25 per cent should be awarded. But, as I have previously explained to you, I consider 20 per cent is an appropriate discount. I accept that it was reasonable for your counsel to delay the entry of plea until a psychiatric report could be obtained to explore whether an insanity defence would be available. However, the report became available in late March. It was unequivocal that insanity was not available. Over three months have elapsed between its completion and your requesting a sentence indication, and during that time preparations for trial were progressed.
[31] Applying these discounts results in a final sentence of six years’ imprisonment, which is the sentence I indicated to you a few months ago.
Minimum period of imprisonment
[32] Because I am sentencing you to a period of imprisonment of more than two years, I may order you to serve a minimum period of imprisonment if I consider the
ordinary statutory minimum period would be inadequate to meet the purposes of sentencing.7
[33] The Crown has not sought a minimum period, and I accept that in the circumstances it is not necessary to impose such a term. The sentence of six years’ imprisonment without a judicially imposed minimum period is adequate to meet the sentencing purposes of holding you to account, deterrence and the protection of the community.
Result
[34]Ms Beerens, would you now please stand.
[35] On the charge of attempted murder, I sentence you to a term of six years’ imprisonment.
[36]You may stand down.
Solicitors:
Raymond Donnelly & Co, Christchurch Public Defence Service, Christchurch
7 Sentencing Act 2002, s 86(2).
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