R v Black
[2013] NZHC 3434
•16 December 2013
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI 2013-016-000597 [2013] NZHC 3434
THE QUEEN
v
CRYSTAL LOUISE BLACK KRYSTEL THERESE POKAI
Appearances: S B Manning and K Laurenson for the Crown
A Simperingham for Ms Black
J C Mathieson for Ms PokaiDate:
16 December 2013
SENTENCING REMARKS OF GILBERT J
R v BLACK AND POKAI [2013] NZHC 3434 [16 December 2013]
[1] Ms Black and Ms Pokai, you appear for sentencing having pleaded guilty to the following offences:
(a) manslaughter; (b) theft;
(c) conversion of a motor vehicle;
(d) attempting to use a document to obtain money; and
(e) attempting to pervert the course of justice.
[2] Manslaughter carries a maximum penalty of life imprisonment. The other offences carry maximum penalties of seven years’ imprisonment apart from theft which has a maximum penalty of 12 months’ imprisonment.
[3] Although you have pleaded guilty to these offences, convictions have not yet been entered, nor has any warning been given to you under the three strikes legislation. Accordingly, I enter convictions against each of you on these offences, to which you have pleaded guilty. I will also now give you the warning that I am obliged to give you under the three strikes law. This warning is required because manslaughter is a serious violence offence for the purposes of the three strikes legislation.
[4] Given your conviction for manslaughter, you are now subject to the three strikes law. If you are convicted of any serious violence 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. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment. You will be given a written notice outlining these consequences which lists the other serious violence offences.
The facts
[5] On the evening of 28 December 2012, the two of you, who were then living together in a relationship, attended a concert with friends. You had a dispute as a result of which Ms Pokai left. She accepted a ride from the victim, Mr Singh, who was driving past and offered to drive her home. Ms Pokai exchanged cellphone numbers with him, but actually gave Ms Black’s number.
[6] On the morning of 29 December 2012, Mr Singh sent a text to Ms Pokai and a large number of texts were exchanged that day during which arrangements were made for Ms Pokai to meet Mr Singh at his home at 3.00 pm. Mr Singh wanted to have sex with Ms Pokai but she refused and returned home.
[7] The two of you later formed a plan to lure Mr Singh to your house by leading him to believe that Ms Pokai wanted to have sex with him. At 5.48 pm that afternoon you sent Mr Singh a text unambiguously conveying that impression. Mr Singh duly arrived and you created the impression that you were not in a relationship and that Ms Pokai was interested in Mr Singh.
[8] Sometime after midnight, the two of you left with Mr Singh in his car and drove to Kaiti Beach. While at the beach, the two of you assaulted Mr Singh causing injuries that led to his death. After assaulting him, you dragged his body up the beach and hid it behind some bushes.
[9] Rather than checking on his condition or seeking assistance for him, you took his car and his wallet. You drove to an ATM machine at Kaiti Mall where you attempted to obtain money from Mr Singh’s account using his Eftpos card. You then drove to another address where you enlisted another person’s help to clean fingerprints from the car using disinfectant and window cleaner. Property was also removed from the car including a bloodstained cardigan which was later burnt. After removing the incriminating evidence from the car, you drove it a short distance and left it on an empty section.
[10] Although you knew that you may well have inflicted fatal injuries on
Mr Singh, at no stage did you check on him or seek help for him. It was not until
24 January 2013 that his badly decomposed body was found hidden beneath the bushes on Kaiti Beach where you had left him. The pathologist who undertook a post-mortem examination was unable to identify a specific cause of death because of the degree of decomposition.
[11] We are left in the position where we do not know exactly how you caused Mr Singh’s death. However, I sentence you on the basis that you are equally culpable having both participated in the attack which was of such severity that it caused the injuries that led to Mr Singh’s death. You are also equally culpable for what happened after the assault.
[12] When spoken to by the police, Ms Pokai said that she “thumped him a few times until he fell to the ground”. She said that she “wasted him”, “hit him as hard as [she] could” and “kicked him once”. Ms Black demonstrated to the police how she had jumped on Mr Singh’s back while holding him down with her hands around his neck and shoulders. She said that he was “jabbering and breathing” until he “went still”.
Starting point for manslaughter
[13] There is no guideline judgment for manslaughter because it can arise in such a wide range of circumstances. Despite the submissions of Mr Mathieson, I consider that it is appropriate to consider the guidance given by the Court of Appeal in R v Taueki1 with an adjustment for the fact that a death has occurred. This case does involve serious violence.
[14] There are a number of aggravating features in this case.
[15] First, there was a degree of premeditation. You lured Mr Singh to your home with a false promise of sex. You then went with him to an isolated part of
1 R v Taueki [2005] 3 NZLR 372 (CA).
Waiti Beach. You knew that he was vulnerable and the only reasonable conclusion on the facts is that you intended to cause him harm.
[16] Second, despite the submissions of your counsel, your attack on Mr Singh must have involved extreme violence. This is apparent from the accounts that you gave to the police of what occurred and the fact that Mr Singh sustained fatal injuries.
[17] Third, the injuries were of course clearly serious and resulted in Mr Singh’s
death but I keep in mind that it is important not to double count this factor.
[18] Fourth, it is accepted that there were multiple attackers in that you both assaulted him. As I mentioned before, Mr Singh was vulnerable. He was very much smaller than you, weighing only 52 kilograms.
[19] Although not a factor specifically referred to in the Taueki case, I agree with the Crown submission that you displayed a level of callousness and this is a further factor that needs to be taken into account. You knew that you had inflicted severe injuries on Mr Singh. You knew that you may well have killed him but you were not sure whether he was dead. Rather than checking on him or seeking assistance for him, you dragged him up the beach and hid him under bushes knowing that he would be unable to get help and was unlikely to be found for some time.
[20] Having regard to these factors, I consider that your offending falls at the higher end of Band 2 of Taueki, for which a sentence of five to 10 years is appropriate. An uplift for Mr Singh’s death would also be required.
[21] I have also considered and reviewed the sentencing decisions in other broadly comparable cases that I have been referred to by counsel.2 Having regard to those decisions and the band indicated by the Taueki analysis, I consider that the
appropriate starting point in this case is a term of eight years’ imprisonment.
2 R v Jamieson [2009] NZCA 555; R v Clarke & Ors HC Rotorua, CRI-2009-270-000073; R v De Wes
HC Gisborne CRI-2006-016-003323; R v Sanders & Anor HC Wellington CRI-2009-078-824.
Attempting to pervert the course of justice
[22] I agree with counsel that the appropriate starting point for attempting to pervert the course of justice is three years’ imprisonment in the circumstances of this case. This was a serious case of its kind including the attempt that you both made on a concerted basis to implicate an innocent third party.
Should the sentences be cumulative or concurrent?
[23] Section 84 of the Sentencing Act 2002 provides that cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of sentences. Attempting to pervert the course of justice is different in kind to manslaughter. A cumulative sentence should therefore be imposed.
Aggravating factors
[24] There are no personal aggravating factors that would justify an uplift in the starting point.
Remorse
[25] In all the circumstances, I am not prepared to accept as genuine your claim of remorse as set out in the letters you have recently provided. A discount for remorse cannot appropriately be given unless it is shown to be genuine following critical analysis.
Guilty plea
[26] The only other relevant further factor is your guilty plea. I note that the murder charge was dismissed following a successful application under s 347 of the Crimes Act 1961. You both pleaded guilty to manslaughter at that stage. You did not offer to plead guilty to manslaughter prior to that, nor did the Crown suggest that the matter was capable of being resolved on that basis. In the circumstances, I consider that a discount of 20 per cent should be allowed for your guilty pleas.
[27] Applying a discount of 20 per cent to allow for your guilty pleas results in a provisional end sentence of eight years and eight months’ imprisonment. I do not consider that this sentence is wholly out of proportion to the gravity of the overall offending. I therefore make no adjustment in terms of s 85 of the Sentencing Act.
Final sentence
[28] Ms Pokai and Ms Black, would you please stand. On the charge of manslaughter, I sentence you each to a term of imprisonment of six years and four months. On the charge of attempting to pervert the course of justice, I sentence you to a term of imprisonment of two years and four months. Those two sentences are to be served cumulatively. That means that your effective end sentence will be one of eight years and eight months’ imprisonment.
[29] On the charge of conversion of a motor vehicle I sentence you to a term of
12 months’ imprisonment. On the charge of attempting to use a document to obtain money, I sentence you to a term of 12 months’ imprisonment. On the charge of theft I sentence you to a term of three months’ imprisonment. These latter three sentences, conversion of a motor vehicle, attempting to use a document and theft, are to be served concurrently with the other two sentences.
[30] This means that your effective end sentence is eight years and eight months’
imprisonment.
M A Gilbert J