R v Berry HC Auckland CRI-2010-092-2165

[2010] NZHC 2373

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-092-2165

THE QUEEN

v

JOSEPH WAYNE JOHN BERRY

Hearing:         7 December 2010

Appearances: A Perkins and L S MacDonald for the Crown

M Gibson for the Prisoner

Judgment:      7 December 2010

SENTENCING NOTES OF ELLIS J

Solicitors:      Crown Solicitors, PO Box 2213, Auckland 1140

M S Gibson, 34 London Street, Auckland 1011

R V BERRY HC AK CRI-2010-092-2165  7 December 2010

[1]      Mr Berry, you appear for sentence this morning having pleaded guilty to murder.

Facts

[2]      In summary, the facts are that on 11 February 2010, just eight days after you were released from prison, you were drinking at the house where you had been staying in Otahuhu with some others.  The victim, Daisy Toto, and two of her friends joined you that afternoon.  You have said that you and Ms Toto had sex there.

[3]      Sometime after 2 am the following morning, you and Ms Toto and several other people left the house to look for cigarette butts in nearby streets.   You and Ms Toto became separated from the remainder of the group, and were last seen walking together along Atkinson Avenue, Otahuhu.

[4]      At about 4 am you were seen walking away from the toilet block situated at Murphy Park by two passing girls.  They had first of all seen you standing next to the toilet block putting on your pants and then pulling them up.  You followed these girls for a while and barked at them like a dog.

[5]      Some hours later at about 6.30 am Ms Toto’s body was discovered lying face down on the ground near the toilet block at Murphy Park.  She had injuries to her face including black eyes and a wound to her head.  Her trousers had been pulled off her waist and left leg and wrapped around her right leg.  Her jacket had ridden up her body and her lower back and waist area were exposed.   Her footwear was found nearby.

[6]      You were found later that day at about 4 pm. When interviewed by the police, you initially said that you and Ms Toto had had consensual sex at your address and that after searching for cigarette butts you had returned to your address after which Ms Toto left on foot alone.  But after being told that your blood stained shoes had been found, you claimed that you and Ms Toto were about to have sex again at Murphy Park, but that you became angry, and that you kicked Ms Toto four

times in the head while she lay on the ground.  You then left Ms Toto there as you believed she was unconscious.

[7]      Later a post mortem showed that the cause of Ms Toto’s death was brain injuries,  consistent  with  her  being kicked to  death.   Blunt  force trauma caused multiple facial injuries and brain injuries, and severe force was also found to have been applied to Ms Toto’s mid brain and brain stem.  Ms Toto was also found to have multiple areas of bruising on her arms and legs.

[8]      It was some time before the results of the post mortem became available. You had the opportunity to seek legal advice and to instruct a lawyer.  You pleaded guilty to the charge of murdering Ms Toto on 5 November 2010.

Personal Circumstances and Pre-Sentence Report

[9]      The pre-sentence report says that you are 26 years old and of Ngati Ruanui descent. Your childhood was characterised by sexual, physical and psychological abuse, and you grew up in an environment where drugs and alcohol were a constant. You were expelled from Hawera High School after supplying drugs to a pupil who fatally overdosed.  You have no history of employment.  You have been receiving an invalid’s benefit as you have been diagnosed with a personality disorder.  You have an extensive history of poly-substance and alcohol abuse.  In the past you have been involved with the Mongrel Mob. You have a long criminal history totalling 100 convictions, including 18 convictions involving some level of violence.

[10]     You have previously said that you are “bummed out” about what happened, but the pre-sentence report writer was doubtful as to whether you were truly sorry for what you have done.  He said that you appeared to be more concerned with your own personal safety while in jail, and while you were aware that you have an alcohol problem, you were not motivated to address this.   You have said “how can they expect me to go through the rest of my life without a drink?”

[11]     That said, I have also heard what you have said today to the Court and to

Daisy Toto’s family.   I accept that although you are still at a loss to explain why

what happened, happened, you are beginning to understand the consequences of what you have done and that you are sorry and I hope that one day you will find the forgiveness that you have asked for today.

Victim Impact Statements

[12]     Now you have heard Daniel Toto, Richard Popata and Brown Vui speak for his wife Martha.  They told the Court this morning how what you did to Daisy Toto has affected them and their families.  I have also received and read statements from other members of her family.  She had nine children.  You can see their sorrow here today.  You have taken away the life of a very loving and much loved sister, mother and grandmother.  Daisy Toto should have had many years of life left to enjoy with her family and for her family to enjoy with her.  What you have done has profoundly hurt all the members of her family emotionally, physically and financially.   They can’t understand why you did what you did.   None of their lives will ever be the same.

Submissions

[13]     There is a presumption in favour of life imprisonment for murder.1    Your lawyer, Mr Gibson, accepts that this presumption applies in your case, but says that a minimum period of imprisonment over 10 years is not called for.

[14]     The  Crown  submits  that  a  starting  point  of  life  imprisonment  with  a minimum  term  of  10  to  12  years  imprisonment  should  be  adopted,  with  an appropriate discount for your guilty plea. The Crown accepts that your guilty plea was entered as soon as you had the opportunity to take advice and instruct counsel after the post mortem report was released, and that there were no eyewitnesses to your offending, which might have made the prosecution more difficult.

1 Section 102 Sentencing Act 2002.

Analysis

Purposes and Principles of Sentencing

[15]     In sentencing you for this offence I must hold you accountable for the harm you have done, try to promote in  you a sense of responsibility, denounce  your conduct, deter you and others from acting in this way, to protect the community, and provide for the interests of your victims.  Subject to the special considerations that sometimes apply in sentencing for murder, I must take into account the gravity of your offending, the seriousness of the offence and the need for consistency in sentencing levels.

[16]     Having considered the events surrounding Ms Toto’s death and your own circumstances, there is nothing to suggest that a sentence of life imprisonment would be manifestly unjust.  You will therefore be sentenced to life imprisonment.

[17]     I   am   then   required   however   to   consider   what   minimum   period   of imprisonment is required in your case.  There is no debate that it must be at least

10 years.    The  question  is  what  period  is  the  minimum  necessary  to  hold  you accountable for the harm you have done, to denounce your conduct, to deter you and others from committing similar offences, and to protect the community from you.2

[18]     In some cases, a minimum term of at least 17 years is required,3  but the Crown has not suggested that that would be appropriate in your case.4   While there was a degree of brutality involved in your attack on the victim Ms Toto, I accept that it was not at such “a high level” so as to put your offending in that category.  In my

view the appropriate minimum period of imprisonment is therefore somewhere between 10 and 17 years.

2 Section 103 Sentencing Act 2002.

3 Section 204 Sentencing Act 2002.

4 Section 104(e) Sentencing Act 2002.

[19]     I have considered the cases referred to by the Crown and Mr Gibson and the matters I am required by law to take into account.  I think the following factors  are particularly important in your case –

a)       Firstly, although what you did was not premeditated, your offence involved a brutal attack on Ms Toto, which included kicks to her head and face.

b)Secondly, you must have known that you had badly injured her but you did not call an ambulance.  You effectively left her for dead, lying on the ground outside a public toilet.

c)       The violent nature of your attack was confirmed by the autopsy report which showed that Ms Toto suffered multiple injuries as a result of multiple blows.

d)You had been drinking and I think lost control.   Although it seems you may have been having an argument with Ms Toto there is nothing to suggest that Ms Toto provoked the attack.

e)        Ms Toto was a vulnerable victim.  She was more than twice your age and she was smaller than you.  She was attacked by someone that she had been kind to and someone that presumably she trusted.

f)        The impact on members of Ms Toto’s family has understandably been devastating.

[20]     As I have said, I am prepared to accept that your remorse may be greater now than the pre-sentence report records.   At the same time you do not quite seem to really understand the seriousness of what you have done or the terrible effect your actions have had on others.   Although as I said before, Mr Berry, what you said today made me think that perhaps you are beginning to have that kind of understanding.  As your prior convictions show, you have a record of violence.  You plainly have a serious problem with alcohol.  I hope and trust you will get help to

address those matters while you are in jail and as Mr Gibson said this morning that steps are taken by the State to provide better facilities for people such as you on release from jail.

[21]     Taking into account all of these various factors relating to your culpability as well as the comparable cases, I have concluded that the appropriate starting point is a minimum term of 13 years.

[22]     I accept that it is then appropriate to make a deduction for your guilty plea. In doing that you have saved Ms Toto’s family the heartache of a defended hearing and you have saved the state the cost of a trial.   I also take minor but separate account of the remorse you have expressed today.  The Crown has not sought any uplift for your previous convictions.

[23]     Without being mathematically precise, an appropriate discount for your early guilty plea and remorse in my view results in a minimum period of imprisonment of

10 years.

[24]     Mr Berry, if you could stand up now please.  On the charge of murder, you must be sentenced to life imprisonment.  I order that you serve a minimum period of imprisonment of 10 years.

[25]     Lastly,  I  wish  to  say  this  for  the  benefit  of  Ms  Toto’s  family  because sometimes there is a misunderstanding about sentencing in a case like this.   You have been sentenced to life imprisonment.  The period of 10 years is the minimum period that you must serve before you may apply for parole.  Whether or not you are granted parole after 10 years will be a matter for the Parole Board then.  So your sentence is not, as seems to be understood by some, a sentence of 10 years imprisonment.  That is the minimum non-parole period, not your sentence, which is life imprisonment.

[26]     You may stand down.

Rebecca Ellis J