R v Boyes-Warren HC Christchurch CRI 2008-009-19959
[2010] NZHC 428
•10 March 2010
IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
CRI-2008-009-019959
REGINA
v
SHANNON DAVID BOYES-WARREN
RANDELL LEGION WIREMU BROWN
Hearing: 10 March 2010
Appearances: M N Zarifeh & A M Toohey for Crown E C Bulger for Boyes-Warren
PHB Hall & K H Cook for Brown
Judgment: 10 March 2010
ORAL JUDGMENT OF HON. JUSTICE FRENCH
[ 1 ] Shannon David Boyes-Warren and Randell Legion Wiremu Brown,
following pleas of guilty you appear for sentence today on charges arising out of the death of Mr Abdulrahman Ikhtiari, a Christchurch taxi driver.
Mr Boyes-Warren, you appear for sentence on a charge of murder and assault
with intent to rob. Mr Brown, you appear for sentence on a charge of manslaughter and assault with intent to rob.
R V BOYES-WARREN AND ANOR HC CHCH CRI-2008-009-019959 10 March 2010
Facts of the offending
On the night of 5 December 2008 the two of you were in the Christchurch central city. You had both been drinking heavily for several hours. At about 12.45 a.m. you caught a taxi to go back to Mr Boyes-Warren’s home address to get some money. The taxi was being driven by Mr Ikhtiari, who was 39 years of age.
He drove you to Mr Boyes-Warren’s address, waited outside while Mr Boyes-Warren got some money, and then drove you back to town. The two of you were in the back seat.
At about 1 a.m., as Mr Ikhtiari was driving along Worcester Street you, Mr Boyes-Warren, told him to stop. You got out, opened the driver’s door and produced a knife, demanding money. A struggle ensued, with you, Mr Brown, still in the back seat, reaching forward and grabbing Mr Ikhtiari around the neck or head area, pinning him to the driver’s seat.
Mr Brown, you say that when you did that, you were unaware Mr BoyesWarren had produced a knife. However, you accept that at some point you did see the knife and yet continued to restrain Mr Ikhtiari.
During the struggle Mr Boyes-Warren held the knife to Mr Ikhtiari’s throat. He inflicted two superficial wounds to his throat, as well as three stab wounds to his lower left leg and a cutting wound to the middle and ring fingers of his right hand. Mr Ikhtiari also received cuts to his eye and nose where his glasses had been knocked from his head.
The struggle continued until at one point you, Mr Boyes-Warren, stabbed Mr Ikhtiari in the left side of his chest. The injury was fatal.
The Crown cannot be certain of the order in which the injuries were inflicted. It does however say it is likely this fatal wound was inflicted while Mr Ikhtiari was still in the taxi and that the two of you then ran away in different directions.
[ 10] Mr Ikhtiari got out of his car, but then in the middle of the road collapsed
and died.
[ 11 ] A post-mortem concluded that he had died from one fatal stab wound to his chest which penetrated his heart.
He sustained 12 separate injuries to various parts of his body, the pathologist describing the defensive wounds as “likely indicating an ongoing and determined assault”.
You, Mr Boyes-Warren, ran to a family member’s address, where you disposed of the knife.
[ 14] The two of you later met up again and walked back into the central city, where you continued to visit licensed premises.
[15] At around 3 a.m. the two of you got into another taxi. When you reached your destination and the driver asked for his fare, you Mr Boyes-Warren hit that driver in the face with your hand, and the two of you then ran away without paying.
[ 16] You were spoken to by the police on the Monday, and subsequently arrested. Initially you were both charged with murder and pleaded not guilty.
[ 17] The trial was set down for hearing on 22 February this year. In early February, Mr Boyes-Warren, you accepted for the first time that you were the principal offender and would plead guilty to murder. Previously, as I understand it, you had alleged it was Mr Brown who had inflicted the fatal wound.
[ 18] That admission enabled Mr Brown’s lawyer to consider the possibility of Mr Brown accepting responsibility for his more limited role and putting forward a proposal to plead to manslaughter.
Victim impact reports
[ 19] The material before me includes victim impact reports from Mr Ikhtiari’s widow and his former employer.
[20] These reports make for very sad reading indeed.
[21 ] The man killed in this cowardly and senseless attack was a man who had sought refuge in New Zealand in the hope that he and his family could live a safer life. From what I have read of him, he was a man of courage and honour; a much loved husband and father, and a highly respected and well-liked employee, friend and colleague. Those who knew him describe him as gentle, kind and caring. He had been forced to flee his home land for trying to help educate children, endured many hardships and was separated from his family for four years before being reunited in 2004.
In just a few short years, the joy of being reunited has turned to unimaginable sorrow and pain. As is only to be expected, Mr Ikhtiari’s death has deeply affected his widow and their five children in every possible way. Mrs Ikhtiari writes of her despair. She says her life has been destroyed, and her anger towards you is beyond words.
In addition to the victim impact reports, I have also read the two probation reports.
Probation report – Boyes-Warren
In relation to you, Mr Boyes-Warren, the pre-sentence report tells me you are now 17 years of age and that prior to your arrest you were working as a scaffolder, earning on average $700 a week.
You had an unhappy childhood, raised in an environment where there were drugs, violence and parents absent for long periods of time in prison. It seems, too, that you have had limited formal education, leaving school at a very early age.
Despite being only 16 at the time of this murder, you already had a disturbing history of offending with numerous convictions in the Youth Court, some of which are for offences involving violence.
When asked by the report writer about the murder, you said you were very drunk, did not remember all of what had happened and could not understand why you had done it. You had around $380 in your pocket. It was not about money. You expressed remorse to the report writer, and showed some insight into the causes of your offending, which you say you are resolved to address.
The sentiments expressed to the probation officer are echoed in a letter which you have written to the Ikhtiari family. I have read that letter and was most impressed by it. The fact you are capable of writing such a letter shows me that there is hope.
Probation report – Brown
The report relating to you, Mr Brown, tells me that you are 20 years of age, and before committing these offences you were one year into a plumbing apprenticeship. You appear to have a good work record and indeed are highly regarded by previous employers.
You also enjoy strong support from your family. They have written of you in heartfelt and moving terms, especially your mother.
As regards previous offending, you have one previous conviction. That was on a charge of assault with intent to injure that occurred in October 2008, ie only two months before the homicide. On that occasion you assaulted a stranger by hitting him on the head with a bottle.
You told the probation officer that you only vaguely remember what happened on the night of 5 December 2008 because you were too drunk. It seems too from what Mr Hall has told me in written submissions that you were also stressed and upset as the result of a relationship break-up.
When you discovered the seriousness of what had happened you felt sick and unable to eat, walk or sleep.
A common theme in the two reports is that both of you are at a complete loss to understand why you did this, and both of you fervently wish you could turn the clock back. You acknowledge the enormity of what you have done and the harm it has caused to so many people, including, of course, to yourselves and your own lives. Both of you have also expressed a wish to attend a restorative justice conference.
Sentencing analysis
I turn to explain the sentencing decisions which I am required by law to make today.
First and foremost, in sentencing you I am directed to take account of the principles and purposes of the Sentencing Act 2002.
In this case, the sentencing purposes of particular relevance are:
·The need to hold you both accountable for the harm done to the victim and the community by your offending.
·To promote in you a sense of responsibility and acknowledgement of that harm.
·To provide for the interests of the victims.
·The need to denounce your conduct – by that I mean the need to express the community’s condemnation of what you have done.
·The need to protect the community from you.
·The need to deter you from ever doing anything like this again, and the need to deter others who might be like-minded. There is widespread
community concern about the frequency of attacks on taxi drivers, as well as widespread concern about young people carrying knives.
As regards the principles of sentencing, the principles of particular relevance are the seriousness of this offending, sentencing consistency and consideration of the effect of the offending on the victim. I am also required to be mindful of my obligation to impose the least restrictive outcome appropriate in the circumstances.
Those, then, are the key principles and purposes of sentencing.
In applying those principles and purposes, I am required to follow what can be loosely called a two-stage approach. That involves me identifying the aggravating and mitigating features relating to the offending, as well as any aggravating and mitigating factors relating to each of you personally.
[41 ] I identify the following aggravating features of this offending, bearing in mind of course the need to differentiate between the culpability of the two of you, a point strongly emphasised by Mr Hall, and rightly so:
i)The use of an inherently dangerous weapon. Mr BoyesWarren, you carried the knife with a 13-centimetre blade on your body during the night in the central city, and then produced it and used it in a violent and fatal manner. There is no evidence that you, Mr Brown, knew the knife was being carried, but once it was produced you saw it and yet still joined in by restraining or continuing to restrain the victim. Your actions prevented Mr Ikhtiari from being able to defend himself against the knife attack.
ii)The vulnerability of the deceased. Taxi drivers driving alone at night are vulnerable. Furthermore, this was an attack by two strong young men against an older person who was seated and then pinned from behind, and his spectacles broken.
iii)The fact the victim was killed during an attempted robbery – a very significant aggravating factor.
iv)The extent of the harm done.
v)Events after the offending. Immediately after the offending you both fled the scene without attempting to render or obtain assistance. Within a short space of time you had returned to the central city and resumed drinking. There is also some evidence that when speaking to associates later about the incident, you both displayed a lack of remorse bordering on callousness in your recounting of “shanking” a taxi driver. The incident involving the second taxi driver further illustrates the callousness of you in particular, Mr Boyes-Warren.
vi)While there is no evidence the robbery was planned, there was still in my view an element of pre-meditation on the part of you, Mr Boyes-Warren:
· You were armed with a knife from some time earlier in the night and immediately presented it when you demanded money.
· You directed Mr Ikhtiari to stop before you reached the central city, and in an area where there would likely be fewer passersby.
· That area was close to where your father resided. Mr Boyes-Warren
[42] The lead offence is obviously the murder count.
[43] First, under the Sentencing Act, where a person is convicted of murder the Court must impose a sentence of life imprisonment unless such a sentence would be manifestly unjust.
[44] Counsel accept that a sentence of life imprisonment is the correct sentence. I agree. You are therefore sentenced to life imprisonment.
[45] Secondly, under New Zealand law, even although a person has received a life sentence they may nevertheless while serving the sentence apply for parole. Parliament has therefore required that where a Judge imposes a life sentence for murder, the Court must also decide on the minimum period of imprisonment the offender must serve before being eligible to apply for parole. This is commonly called the minimum non-parole period.
[46] The minimum non-parole period generally must not be less than ten years. However, because you committed this murder in the course of another serious offence (assault with intent to rob) that brings your case into a category of murders where Parliament has said the minimum term is to be 17 years unless that is manifestly unjust. That is the effect of s 104.
[47] Counsel agree the minimum term should not be more than 17 years. The key issues are:
i)Would 17 years be manifestly unjust, having regard to the fact there is no youth exception to minimum periods of imprisonment?
ii)If it would be manifestly unjust, what is the appropriate lesser period?
[48] Ms Bulger submits that the combination of your guilty plea, your age, your
lack of emotional maturity and your remorse means that 17 years would be
manifestly unjust. She has referred me to another case involving a 15 year old where those same factors in combination persuaded the Judge to come to that conclusion: R v Trevithick HC Auckland CRI-2007-244-000009, 19 June 2007, Venning J.
There are several points to be made about that case. The first is that the guilty plea in that case came at a very early stage, whereas yours was at the eleventh hour, entitling you at most to a ten per cent discount. The second point is that since the case was decided, the Court of Appeal has said that generally speaking there should not be an additional discount for remorse on top of a discount for a guilty plea, unless the remorse is exceptional: R v Hessell CA170/09, 2 October 2009. The third point is that the lack of emotional and intellectual maturity mentioned by the Judge in that case was based on medical reports about that particular offender. It was a not a reference to the inherent emotional immaturity of young people generally.
In considering this issue, the law requires me to ask two questions.
The first is, what is your degree of culpability compared to that involved in the standard range of murders?
In my view, a sentence of 17 years as a starting point does appropriately reflect the aggravating features of your offending which I have already identified. However, while there are no factors relating to the offending in mitigation, there are personal mitigating factors, in particular the combination of your guilty plea and your age. In my view, they mean that but for s 104, a lesser minimum term than 17 years would be justified.
The second question I have to ask is, given those circumstances, would imposing 17 years be manifestly unjust?
After careful consideration, I have decided that 17 years would be manifestly unjust on the basis of a combination of the guilty plea and your age, and that the most principled approach as advocated by the Crown is to give you the benefit of a discount in the vicinity of 20 per cent of the discretionary component of the minimum period of imprisonment.
I have therefore decided that in all the circumstances the just minimum non-parole period is 15 and a half years.
There will be a concurrent sentence of a term of imprisonment of six years in relation to the offence of assault with intent to rob.
Mr Brown
In your case the lead offence is obviously manslaughter.
The approach I must take is first to determine what is called the starting point sentence. That is the sentence based on the seriousness of your offending, having regard to the aggravating and mitigating factors of the offending and other cases. I then must determine whether that starting point should be adjusted upwards or downwards on account of any factors relating to you personally as distinct from the offending.
Turning then to the first stage: determining the starting point.
It is common ground that there is no set tariff for manslaughter because the facts of manslaughter cases vary so differently. The sentence must be tailored to the particular facts, having close regard to any other cases that involve similar situations. This often makes it difficult to determine starting points, and as you will have heard, the lawyers disagree about what the appropriate starting point should be in your case.
The Crown say the appropriate starting point is 10 to 12 years, whereas Mr Hall says it should be at the lower end of the scale, somewhere in the vicinity of eight years or less.
In support of that submission, Mr Hall emphasised that your culpability must be assessed against your actions, your intentions and your knowledge about what was occurring between Mr Boyes-Warren and the victim. He pointed to the following factors as providing crucial distinguishing points between the cases cited by the Crown and your case:
i)There is no evidence of any discussions about a robbery. Mr Boyes-Warren, without warning, suddenly attacked the driver.
ii)You did not instigate the attack.
iii)You were not armed with any weapon yourself, and your view of what was happening in the front seat would have been limited.
iv)You joined the attack before you knew Mr Boyes-Warren was carrying a knife and therefore at the time you joined the attack death, or very serious injury, was not in your contemplation.
v)You did not see the actual stabbing, and did not realise the victim had been stabbed as opposed to cut.
vi)It is a reasonable possibility the fatal injury was inflicted after you had released Mr Ikhtiari.
vii)You never had any intention to kill Mr Ikhtiari.
viii)The attack was of short duration.
I accept the points made by Mr Hall, and I have taken them into account in my assessment of culpability. There is absolutely no doubt that yours was the lesser role. Nevertheless, you still played a very active role in restraining Mr Ikhtiari and preventing him from defending himself. You saw the knife and yet you continued to restrain him, knowing he was being attacked by someone wielding a knife.
I accept there is not the element of pre-determination as there is in the other cases, but on the other hand in this case there is a very crucial aggravating factor, and that is the fact of the weapon.
[65] In my view, having regard to all the comparator cases and the aggravating features of your offending, a starting point of nine years’ imprisonment is appropriate.
[66] I turn now to mitigating factors relating to you personally, having noted that there are no aggravating factors.
[67] Mr Hall identified the following as mitigating factors:
i) The guilty plea.
ii) Remorse.
iii) Your age at the time of the offending (19 years).
iv) Your relative lack of previous offending.
[68] Of these, by far the most important is the guilty plea, and I accept that in the unusual circumstances you are entitled to receive the full one-third discount, despite the lateness of the plea.
[69] I also accept there should be some limited discount on account of your age. I do not, however, accept that there should be a discount for your relative lack of previous offending. I do not regard the previous conviction as an aggravating feature, but equally I do not consider it appropriate you should receive credit for only having the one conviction, especially given its nature.
[70] As regards remorse, I consider that appropriate allowance has already been made for that in the guilty plea discount. I do not regard your remorse as exceptional.
[71] After adjusting the starting point of nine years downwards to take account of these two mitigating factors, I arrive at an end sentence of a term of imprisonment of five and a half years.
The assault with intent to rob charge in my view warrants a sentence of four years’ imprisonment. It has already been taken into account by me as an aggravating feature of the manslaughter, and therefore that sentence should be concurrent. That is to say, it is not added to the sentence of five and a half years.
The effective sentence, therefore, is one of five and a half years’ imprisonment.
The Crown submits that yours is a case where the normal parole eligibility date would be too soon, and seeks a minimum term of imprisonment.
Mr Hall opposes this. He points to the lack of aggravating factors such as any motive to harm the deceased, and the absence of convictions for very serious violence, as well as the mitigating factors I have already discussed. In Mr Hall’s submission, at age 19 any term of imprisonment will be sufficient to meet the purposes of accountability, denunciation, deterrence and protection of the community. A crushingly long sentence, he says, is more likely to stamp out your chances of rehabilitation.
I am mindful of my obligation to impose the least restrictive outcome that is appropriate. However, in my view this was very serious offending, notwithstanding your lesser role. In the circumstances of this case, the purposes of accountability, denunciation and deterrence must be to the forefront, and in my view they would not be adequately satisfied by the statutory one-third period. I also accept the further Crown submission that for that reason, and having regard to the factors in ss 8 and 9 of the Sentencing Act, a minimum period of imprisonment of two-thirds of the full term of the sentence is appropriate. That results in a minimum period of imprisonment of three years and eight months.
Sentence
Shannon David Boyes-Warren, on the charge of murder you are convicted and sentenced to life imprisonment with a minimum non-parole period of 15 and a half years.
On the charge of assault with intent to rob, you are convicted and sentenced to a concurrent term of imprisonment of six years.
Randell Legion Wiremu Brown, you are convicted on the charge of manslaughter and sentenced to a term of imprisonment of five and a half years.
On the charge of assault with intent to rob, you are convicted and sentenced to a concurrent term of imprisonment of four years.
In your case there will be a minimum period of imprisonment of three years and eight months.
Solicitors:
Crown Solicitor’s Office, Christchurch E C Bulger, Christchurch
PHB Hall, Christchurch
0
0
0