R v Cable
[2021] NZHC 3129
•19 November 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-069-000365
[2021] NZHC 3129
THE QUEEN v
DARKIE THOMAS CABLE
Hearing: 19 November 2021 Appearances:
A Gordon and S Bird for the Crown K Burroughs for the Defendant
Judgment:
19 November 2021
SENTENCING NOTES OF MUIR J
Solicitors/Counsel:
Gordon Pilditch, Crown Solicitors, Rotorua K W Burroughs, Barrister, Hamilton
R v CABLE [2021] NZHC 3129 [19 November 2021]
Introduction
[1] Darkie Thomas Cable, you appear for sentence on two charges of injuring with intent to cause grievous bodily harm1 and one charge of murder,2 following your guilty plea of 2 August 2021.
[2] This case triggers s 86E of the Sentencing Act 2002 (“the Act”) because your offending has been subject to a second strike warning under the “Three Strikes” regime, introduced in the Sentencing and Parole Amendment Act 2010.
[3] In terms of s 86E(2), you must on the murder charge be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so.
[4] If this Court does find it manifestly unjust to impose life imprisonment without parole, s 86E(4)(b) requires it to impose a sentence with a minimum non-parole period of at least 10 years in accordance with s 103 of the Act but taking into account also s 104 of the Act, which prescribes a minimum parole period of 17 years for murders of the most serious kind, including those involving a high degree of brutality, cruelty, depravity or callousness.3
[5] In the event s 104 is engaged, the identified minimum non-parole period applies unless such would be “manifestly unjust”.
[6]In this case the Crown says:
(a)you must be sentenced to life imprisonment;
(b)at issue is whether it would be manifestly unjust to impose that sentence without the possibility of parole;
1 Crimes Act 1961, s 189(1). Maximum penalty: 10 years’ imprisonment.
2 Sections 160(2)(a) and 167(b). Maximum penalty: life imprisonment.
3 Sentencing Act 2002, s 104(1)(e).
(c)if it would be manifestly unjust to impose a sentence of life imprisonment without the possibility of parole, the remaining issue is the appropriate minimum period of imprisonment (“MPI”);
(d)an appropriate MPI for the murder alone would be around 12 years. That MPI should be uplifted by two–three years to account for the other charges on which you are being sentenced today, and by six months to a year for your previous violence convictions;
(e)section 104 of the Act is not engaged and an appropriate MPI would, before considering s 86E, therefore be between 14.5 years and 15.5 years; and
(f)you are 37 years old and could serve 40 years in prison if not eligible for parole. The Crown will abide the Court’s decision whether to engage the manifest injustice exception in s 86E(2)(b).
[7] The defence substantially accepts the Crown’s propositions, but says any uplift for your injuring with intent convictions should be in the range of one year’s imprisonment only. An appropriate uplift for your previous convictions would, in Mr Burrough’s submission, be approximately six months’ imprisonment.
Factual basis for sentencing
[8] I am now going to address the factual basis on which I sentence you. At this point I will not address you personally but will refer to you as Mr Cable in my notes on sentencing.
[9] The summary of facts to which Mr Cable pleaded guilty records that he and Sam Reid were in a relationship of approximately 13 years duration. They have two young children. Police have recorded five family harm incidents between Mr Cable and Ms Reid between 2008 and 2020.
[10] At around 6.00 pm on 26 December 2019, Mr Cable and Ms Reid were at Ms Reid’s parents’ address. They were celebrating Boxing Day with family. All present were consuming alcohol.
[11] An argument between Mr Cable and Ms Reid ensued and quickly escalated. The apparent catalyst was some minor perceived error in the way Ms Reid had parked her car. Mr Cable dragged Ms Reid outside by her hair and assaulted her in front of their family and friends. He rained punches down on her, causing her to fall to the ground. There, Mr Cable kicked her multiple times about her head and torso. He then dragged her by her hair to an isolated area around the side of the address.
[12] Attempted interventions by various relatives were unsuccessful, with Mr Cable threatening that they should “stand there and watch or I’ll smash you”. He continued his assault on Ms Reid, punching and kicking her until confronted by a neighbouring resident.
[13] Ms Reid then fled the address and sought refuge at a relative’s home. Mr Cable returned to the Boxing Day celebrations. These events gave rise to Mr Cable’s first charge of injuring with intent to cause grievous bodily harm.
[14] At around 10.00 pm, Mr Cable announced his intention to “go and fucking find” Ms Reid. He left the address to search for her.
[15] Ms Reid returned to the address around 15 minutes later. Mr Cable himself returned shortly afterwards.
[16] Mr Cable approached Ms Reid, saying “fuck you bitch”. He punched her in the head with enough force to send her head through the cladding of the wall next to where she was standing. He again grabbed Ms Reid by her hair, then threw her down a flight of stairs and forced her into a nearby vehicle.
[17] Mr Cable then announced he would “smash” Ms Reid in front of her cousin and that he would “smash all these cunts”. He proceeded to drag her by her hair to an
isolated area around the side of the address. He again kicked and punched her in the head several times. He continued to issue threats.
[18] Ms Reid eventually got up from the ground and asked her cousin to phone the Police. She went to the bathroom to clean herself up. Mr Cable followed.
[19] When Police arrived at the address, Mr Cable met them in the hallway. He refused to accompany them outside, instead jumping out of a bedroom window and fleeing. These events gave rise to Mr Cable’s second charge of injuring with intent to cause grievous bodily harm.
[20] As a result of this ordeal, Ms Reid suffered extensive bruising to her head, face and torso. She also suffered a conjunctival haemorrhage around her right eye.
[21] Sometime after the events of Boxing Day 2019, Mr Cable, Ms Reid and their two children relocated to a rural property in Taupo. The property consists of a Portacom building and a nearby dilapidated house. It adjoins neighbouring land occupied by Mr Cable’s half-brother, Mr Mita, and Mr Mita’s partner, Shannon Ohlson.
[22] At around 10.00 am on 25 January 2020, Mr Cable, Ms Reid and their two children were at the Taupo address. Mr Cable told Ms Reid to retrieve some of his personal items from his car. She did so, but did not retrieve everything he wanted, in particular his Mongrel Mob gang patch.
[23] Mr Cable became enraged. He assaulted Ms Reid on a grassy area between the Portacom building and the house. He punched her, causing her to fall to the ground. When she attempted to stand back up, he continued to punch her to the ground. Her children could hear her screams from inside the Portacom building where they were located. One witnessed the attack, describing Mr Cable as having used what may have been a wooden post to hit Ms Reid.
[24] There is some uncertainty about whether Mr Cable did, in fact, use a weapon to strike Ms Reid. In any event, the violence was forceful enough to knock her unconscious.
[25] Mr Cable left Ms Reid lying on the ground. He then drove to Mr Mita and Ms Ohlson’s neighbouring address. He instructed Ms Ohlson to come with him. The two returned to where Ms Reid was lying. They lifted Ms Reid, carried her into the Portacom building and placed her on a mattress. Ms Ohlson then went back to her house and sought Mr Mita’s help.
[26] Mr Cable instructed Ms Ohlson, Mr Mita and his children to tell emergency services that he was not there, and that Ms Reid had sustained her injuries by falling off the deck of the dilapidated house. He then left the Portacom building and hid at Mr Mita and Ms Ohlson’s neighbouring address.
[27] Emergency services later arrived at the Taupo address. Mr Cable lay low. He did not make himself known to paramedics, nor did he give any aid.
[28] Ms Reid was taken by ambulance to a nearby location to await an airlift to Waikato Hospital. Mr Cable drove to where the ambulance was stopped, telling paramedics that he was Ms Reid’s partner and that someone had phoned him to tell him she had been taken away by ambulance. He told paramedics Ms Reid had been renovating the house and that she had been drinking heavily recently and taking marijuana. He did not give any information that could assist paramedics in treating her injuries.
[29] Ms Reid was then airlifted to Waikato Hospital, where she was placed on life support. Her injuries were non-survivable, and her life support was turned off the next day.
[30] On speaking with Police, Mr Cable denied he had been at the property when Ms Reid sustained her injuries. He said he had driven to attend his cannabis plants near the State Highway 5 and Ohaaki Road area. He claimed that when he had
returned home, Mr Mita had told him that Ms Reid had been taken away by ambulance. All these claims were of course false.
Mr Cable’s background
[31] Mr Cable, you are a 37-year-old Māori with iwi affiliations to Ngāi Tuhoe, Ngāti Awa, Ngāti Tahu and Ngāti Whaoa. You were born in Taupo and raised in Kawerau. You are one of 10 siblings and half siblings. Your childhood was traumatic. You were repeatedly abused, both physically and sexually. You gravitated to the Mongrel Mob, of which you became a patched member. Drug and alcohol abuse have been ongoing features of your life.
[32] You have a reasonably extensive criminal history, including receiving stolen property, possession of cannabis, burglary and various traffic offences. Of particular relevance to today’s sentencing, however, are your seven previous violence convictions comprising:
(a)four convictions for male assaults female;
(b)a conviction for wounding with intent to cause grievous bodily harm;
(c)a conviction for common assault; and
(d)a conviction for speaking threateningly.
[33] Two of the male assaults female convictions, and the conviction for speaking threateningly, are said to relate to offending against Ms Reid.
[34] I have received a report on your personal and cultural background, prepared pursuant to s 27 of the Act. It identifies several factors as contributing causally to your offending, particularly the normalisation of violence by your childhood exposure to physical abuse and intimate partner violence, intergenerational gang affiliations, a possible undiagnosed traumatic brain injury and drug and alcohol impairment.
[35] I have also received a significant number of letters written in your support. Your older sister, Maggie Mita, who successfully put behind her the deprivations of your childhood to establish herself as a Senior Sports Administrator, speaks of her deep affection for you, your dedication to family and friends and what she sees as your light-hearted nature. She attests to your abusive childhood and the violence your father meted out on you. She worries for your mental health and confirms that your family is dedicated to supporting you on your path to rehabilitation.
[36] Ms Mita’s children, Isaac and Savanna Walker, both studying for Bachelor of Science degrees at the University of Auckland, similarly speak to the consistent support you have provided to the wider family. They describe you as a cheeky and cheerful man who can be relied upon to care for and protect his family. Evidently that did not apply to Ms Reid. They ask for this Court’s assistance in your process of growth and rehabilitation.
[37] Your brother-in-law, Rodney Walker, also references your support for family. He says he has faith in your prospects of rehabilitation and that he will continue to stand by you, as your friends and family do.
[38] Your eldest sister, Mona Cable, is confident that you are remorseful for what you have done and that you can move forward with your family’s love and support.
[39] Finally, your younger sister, Kata Woods, says that you are a kind and caring man. She believes that with proper care and support you will be able to turn your life around.
[40] Common to the various letters of support are sentiments that you suffered significant abuse and trauma in your childhood, that you keenly felt the losses of both of your parents (but, in particular, your mother), and that you have prospects of meaningful rehabilitation and redemption.
Victim impact statements
[41] I have received victim impact statements from Robyn Lose, Ms Reid’s aunt, Ms Paere Huruhuru, her sister, Krishla, Ms Reid’s cousin, Dallas Huruhuru and Murray Trainer, a local kaumatua and long-term resident of Maketu.
[42] From these, I gain a strong sense of Ms Reid’s unwavering love and support for her children, of her essential goodness and of the emptiness, loss and hurt that her senseless and violent death has caused to so many in her whanau. Krishla’s account of the anguish that overwhelmed family members as Ms Reid’s life support was turned off, is one I am likely to carry for the rest of my judicial days. I thank all of those who have provided statements for their valuable insight into both Ms Reid as a person and the way in which this tragedy has touched their lives.
Crown submissions
[43] The Crown submits that murder sentencing is a narrowly circumscribed exercise. Where an offender is convicted of murder and that murder is a second or third strike offence, the Act mandates a sentence of life imprisonment without parole,4 unless the Court is satisfied such requirement would be manifestly unjust.5
[44] The Crown submits that in deciding whether a life sentence without the possibility of parole would be manifestly unjust, the Court must first determine what the notional MPI would be but for s 86E’s operation.6 To do so, it must examine the circumstances of the offence and the offender.
[45] The Crown further submits that the full spectrum of purposes and principles of sentencing in ss 7 and 8 of the Act apply to your sentence on the lead charge. In particular, it says this Court should consider the purposes of denunciation, deterrence, community protection and the need to sheet home to you a sense of responsibility for what you have done. As well, it says that your offending’s impact on your victims is a foremost consideration.
4 Section 86E(2)(a).
5 Section 86E(2)(b).
6 The Crown cites in support Davis v R [2019] NZCA 40, [2019] 3 NZLR 43 at [32]; and R v Harrison [2016] NZCA 381, [2016] 3 NZLR 603 at [103].
[46] As already noted, the Crown does not contend that s 104 of the Act applies. It therefore says that a notional MPI in respect of your offending falls to be determined under s 103. That section provides that where the Court sentences an offender convicted of murder to life imprisonment, it must order an MPI of not less than 10 years. The Crown submits that the Court must have regard to the purposes set out in subs (2) to determine whether a higher MPI than 10 years is required in your case.
[47] As to the aggravating features of your offending, the Crown says that I should take into account the severe abuse of trust involved in your January 2020 attack on Ms Reid, the fact of her vulnerability, and the fact that you forced your children to watch their mother’s murder. The last of these it identifies as placing a particularly cruel and harmful complexion on your offending. It submits there are no mitigating features in respect of it.
[48] The Crown cites a selection of broadly comparable cases which it says are useful guides in imposition of the relevant MPI. Each shares the defining characteristic of an offender committing murder in a relationship setting. One relevantly involved precursor episodes of intimate partner violence. The minimum periods in those cases ranged from 11 years’ imprisonment to 14 years’ imprisonment.7
[49] The Crown submits that in none of the comparator cases were vulnerable third parties like children made to witness the murders. It submits that you displayed particular callousness in doing so.
[50] While your offending did not involve a breach of bail or breach of a protection order, as in Marsters, for example, the Crown submits this is of no moment. It says the only reason that you were not on bail or subject to a protection order at the time you murdered Ms Reid is that you had deliberately evaded authorities after the events on Boxing Day 2019.
[51] Having regard to all those considerations the Crown submits that a notional MPI starting point of 12 years is appropriate.
7 The relevant cases are R v Marsters [2021] NZHC 1268; R v Singh [2015] NZHC 2369; R v Callaghan [2012] NZHC 596; R v Ngeru HC Wellington CRI-2008-085-5996, 11 December 2009; and R v Ryan HC Hamilton CRI-2005-019-9389, 26 July 2007.
[52] However, it submits this should be uplifted by two to three years to capture the criminality of your earlier assaults on Ms Reid. In support of that submission, it states that the two charges of injuring with intent to cause grievous bodily harm would, taken alone, attract a starting point of around five years’ imprisonment.8
[53] In the Crown’s submission, there are also aggravating features personal to you that warrant a discrete uplift to the notional MPI — principally, your previous convictions for violent offending, including against Ms Reid. These are said to reflect your predilection for violence, particularly in a domestic setting. That your punishments for those convictions have evidently not deterred you from further violent offending suggests a need for a sterner response. The Crown submits an uplift of six months’ imprisonment to one year’s imprisonment could achieve that end.
[54] The Crown accepts that you have faced general hardship in your life, including struggles with alcohol abuse and a delinquent father. It also accepts that some discount in your sentence is available for your entry of a guilty plea before your family, and in particular your children, were retraumatised by having to give evidence. Notwithstanding that, it submits that because your plea was entered the morning of trial, a discount of no more than six months’ imprisonment is available.
[55] The Crown’s final position is therefore that you should be sentenced to life imprisonment with an MPI of 14 and a half to 15 and a half years’ imprisonment, less any discounts for personal mitigating features. It abides this Court’s decision on whether life imprisonment without parole would be manifestly unjust for the purposes of s 86E of the Act. But it notes that this is only a stage-2 murder. It also states that its case is that you recklessly, not wilfully, murdered Ms Reid. It says there is a significant discrepancy between the possible sentencing outcomes under ss 103 and 86E and that the fact that you could live for another 40 or more years brings the latter section’s manifest injustice proviso into sharp relief. That is the Crown case.
8 The Crown here relies on R v Taueki [2005] 3 NZLR 372 (CA).
Defence submissions
[56] Mr Burroughs accepts that you must be sentenced to life imprisonment. He also accepts that the Crown’s suggested starting point is appropriate and agrees that all the purposes and principles in ss 7 and 8 of the Act are engaged.
[57] The only real point of difference Mr Burroughs raises is as to the extent of uplifts to be applied to your notional MPI. He submits that an uplift of one year’s imprisonment would properly reflect the criminality of your Boxing Day 2019 offending. A further uplift of six months’ imprisonment could be imposed, he says, for your previous criminal convictions.
[58] As to your personal mitigating features, Mr Burroughs highlights that you have had a traumatic upbringing and that you pleaded guilty to the charges on the morning of trial, sparing your children from giving evidence.
[59] Mr Burroughs acknowledges that any discount for remorse is at the Court’s discretion, but says you have mourned Ms Reid and that you have always accepted responsibility for her death. He submits the appropriate sentence is life imprisonment with a specified non-parole period.
[60]I will now outline the structure of the sentencing exercise that I intend to adopt.
Sentencing framework
[61] I record at the outset my requirement to consider the principles and purposes of sentencing under ss 7 and 8 of the Act. This relevantly includes the need to hold you accountable for the harm done to Ms Reid and her whānau, denounce your conduct, deter you and others from committing similar offences and protect the community. The sentence I impose must also take into account the gravity of your offending and achieve consistency with the sentences imposed in other, similar cases of murder.
[62] Under s 102(1) of the Act, there is a presumption in favour of life imprisonment where an offender has been convicted of murder unless such sentence would be
manifestly unjust. That section is subject to s 86E which, as I have indicated, provides that if a murder is a second or third strike offence, the Court must sentence the offender to life imprisonment without parole unless it would be manifestly unjust to do so.
[63]The process I am therefore required to adopt is as follows:
(a)first, I must determine whether any of the factors outlined in s 104(1) of the Act are present;
(b)second, I will need to identify an appropriate notional MPI in accordance with ordinary sentencing principles. This involves considering the circumstances of the offending, including any aggravating or mitigating factors, and also your personal circumstances as they relate to that offending;
(c)third, if I determine s 104 is engaged and the MPI I identify is less than 17 years, I must determine whether it would be manifestly unjust to impose an MPI of 17 years under s 104; and
(d)finally, I must determine whether it would be manifestly unjust to impose a sentence of life imprisonment without parole under s 86E.9
Analysis
Is s 104 of the Act engaged?
[64] Section 104 of the Act provides that in certain circumstances the Court must impose an MPI of at least 17 years, provided it will not be manifestly unjust to do so. Neither the Crown nor the defence submit that this section applies. I ultimately agree.
[65] Although all murders involve an element of brutality, cruelty and callousness, your offending did not, in my view, demonstrate any of these characteristics to the extent necessary for s 104(1)(e) to be engaged, albeit that the fact the fatal assault
9 Section 86E(2)(b).
occurred in view of your children took the offending, in my view, close to the statutory threshold.10
[66] In terms of s 104(1)(g), I accept that your partner, Ms Reid, was vulnerable by virtue of your superior size and physicality. I agree with the Crown, however, that s 104(1)(g) is likewise not engaged. That subsection requires a finding that the victim was “particularly vulnerable”. As I said in R v Tai:11
The particularly vulnerable threshold is a high one. It is most often restricted to cases involving the murder of infants, the elderly, people with disabilities, or people who were physically unable to defend themselves, for example by reason of unconsciousness at the time of the fatal assault. In his discussion in an article entitled “Murder Most Foul: an Analysis of the Court’s Approach to s 104 of the Sentencing Act 2002”, Mr Tim Conder notes that, despite being expressed in substantially identical terms, the standard under s 104 is stricter than that under s 9(g) of the Act in that the cases establish that a victim should have an identifiable impediment, either by virtue of age or disability that makes him or her unable to defend the attack.
[67] In Tai I found that a 22-year-old victim could be regarded as “particularly vulnerable” by virtue of long-term serial abuse. Relevant also was how she died — defenceless against a 12 gauge shotgun.
[68] I agree with the Crown that this case can be distinguished from Tai on the grounds:
(a)there is not the same evidence of long term physical abuse at the level indicated in Tai, albeit there was such abuse;
(b)Ms Reid was significantly older than the victim in that case (33 at the time of her death);
(c)the victim in Tai had no capacity to mount any form of defence against the weapon employed.
10 The cases in respect of s 104(1)(e) appear to focus on the brutality/callousness of the offending, but in my view the wording of the subsection potentially applies to all circumstances surrounding a murder.
11 R v Tai [2018] NZHC 1602 at [40].
[69] I agree with the Crown therefore that s 104(1)(g) of the Act is not engaged either.
What is an appropriate notional MPI?
[70] I turn now to the second stage of my analysis. I must identify an appropriate MPI in accordance with ordinary sentencing principles.
[71] Although murder is one of the most serious, if not the most serious type of offending, the law says I must not impose a sentence that is crushing. As far as possible, the Court is required by law to assist in your rehabilitation.12 The first step in that assessment is to determine your culpability, having regard to any aggravating or mitigating features of the offending.
[72] In relation to your murder of Ms Reid, the following aggravating features are present.13
[73] First, the offending involved a significant breach of trust and was perpetrated against a vulnerable person.14 Ms Reid was your partner and was entitled to the safety and protection that came with that. Where a victim of violence is a family member and dependent on the offender for emotional and physical support, the “aggravating factor of vulnerability almost inevitably will be triggered”.15 So it is here.
[74] Second, your failure to assist Ms Reid.16 You took active steps to conceal yourself from the paramedics who attended the scene. You fabricated an explanation for Ms Reid’s injuries. You sought your children, your half-brother and his partner’s complicity in that fabrication. You disclaimed responsibility for Ms Reid’s injuries and her eventual death.
12 Sentencing Act, s 7(1)(h).
13 The aggravating and mitigating features set out in s 9 of the Sentencing Act are relevant to the starting point assessment to the extent they go to the purposes in s 103(2).
14 Sentencing Act, s 9(1)(f) and (g). Although both ss 9(1)(g) and 104(g) use the same phraseology “particularly vulnerable”, the latter is routinely given a stricter meaning (refer [66] above).
15 Solicitor-General v Hutchinson [2018] NZCA 162, [2018] 3 NZLR 420 at [27].
16 Sentencing Act, s 9(4).
[75] Third, the extent of loss arising from your offending.17 I refer here to the loss of Ms Reid’s life — the greatest loss that can ever occur in the context of violent offending.
[76] Fourth, I accept the Crown’s submission that it is an aggravating feature of your murder of Ms Reid that you did so in front of your children. That factor gives your offending a distinctly cruel character.18
[77] Finally, I consider the Boxing Day offending to be a significantly aggravating feature.19 That offending is sufficiently proximate in time and similar in nature to your murder of Ms Reid (being offending involving your sustained infliction of violence to the head) to warrant consideration in setting a starting point for the lead charge of murder. It is open to this Court to have regard to associated offending as part of the surrounding circumstances. The sentencing purposes set out in s 103(2) do not simply contemplate the harm done by the index offending. Instead, the subsection “connotes accountability for the offender’s total criminality”. To fix a minimum term with reference to such considerations is not to impose a cumulative sentence.20
[78] There is some uncertainty whether your murder of Ms Reid involved the use of a weapon. Given that uncertainty, I am not prepared to treat the use of a weapon as an aggravating feature in this case.21
[79] The Crown submits, and the defence accepts, that there are no mitigating features of the offending. I agree.
[80] In determining an appropriate starting point, it is necessary to consider comparable sentences handed down in other cases with broadly similar features. I discuss those cases referred to me by counsel.
17 Section 9(1)(d).
18 Section 9(1)(e).
19 Section 9(1)(j).
20 Simon France (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at [SA103.03], relevantly citing R v Hoko (2003) 20 CRNZ 464 (CA); R v Houma [2008] NZCA 512 at [35]; R v Alder CA430/01, 25 June 2002; and Pukeroa v R [2013] NZCA 305 at [42].
21 Sentencing Act, s 9(1)(a).
[81] First, R v Marsters. There, the offender murdered the victim, with whom he was in a relationship, by stabbing her in the chest multiple times. Relevantly, there was a precursor incident of intimate partner violence. An MPI of 14 years was set, taking into account of aggravating features of the offending including that it was while the offender was on bail, the use of a weapon, the victim’s vulnerability and the great hardship inflicted on the victim’s family.22
[82] R v Singh concerned an offender who fatally stabbed his wife and non-fatally stabbed the man with whom he suspected she was cheating. The Judge set an MPI of 12 years and 6 months, having regard to factors of premeditation, the use of a weapon and the risk to bystanders.23
[83] In R v Callaghan, the offender struck the victim, with whom he was in a relationship and shared a child, multiple times with a child’s baseball bat. The victim died of her wounds. The Judge there set an MPI of 11 years, taking into account that the attack had happened in the victim’s home, that a weapon was used and that the victim’s head was attacked.24
[84] R v Ngeru involved a drunk offender severely beating his partner. He kicked and stomped on her chest, he kicked her head with enough force to fracture her skull.
She died of her injuries. The Court set an MPI of 12 years.25
[85] Lastly, in R v Ryan, the offender strangled the victim, with whom he had previously been in a relationship, to death. He described himself as having flown into a “blind rage”. The Court again set an MPI of 12 years.26
[86] The cases are all factually similar to the instant case in that they concern murders in a relationship context, but none is on all fours with it. To that extent, direct comparison is not available.. Of the cases referred to me, however, I regard Marsters as the most relevant comparator. I see your offending as marginally less serious than
22 R v Marsters, above n 7, at [32].
23 R v Singh, above n 7, at [43].
24 R v Callaghan, above n 7, at [24].
25 R v Ngeru, above n 7, at [33].
26 R v Ryan, above n 7, at [14].
the offending in that case. As I have already said, I am not prepared to conclude that you used a weapon in murdering Ms Reid. Those points aside however, I consider your offending broadly similar such that the MPI that I set today should be only slightly less than the MPI set in that case.
[87] The comparator cases establish a range of MPIs of between 11 years and 14 years for murders in a relationship context. There are at least two distinguishing features of your offending that, in my view, place it nearer the top of that range. First is the fact that it occurred in sight of your children. Second, it was the denouement in an ongoing campaign of violence against her — represented here by your historical convictions and the two charges of injuring with intent to cause grievous bodily harm for which you are also being sentenced today. I have already signalled my intention to capture your overall criminality during the December/January period in fixing the starting point for your MPI.
[88] Having regard to those relativities and the statutory datum point,27 I consider an MPI of more than 10 years is required to satisfy the purposes of accountability, denunciation, deterrence and community protection.28 Both the Crown and the defence say a starting point of 12 years’ imprisonment is appropriate. Given the additional aggravating features I have identified,29 the lack of any mitigating features, the relative seriousness of your offending and the fact that I intend to build the December offending into the starting point, whereas the Crown contended for a discrete uplift, I intend to adopt an MPI of 13 years and six months’ imprisonment.
[89] I turn now to consider any adjustments that would be appropriate to that notional MPI in light of your personal circumstances.
Uplifts for personal circumstances
[90] I have already accounted for your Boxing Day 2019 offending in setting the starting point for your murder sentence. Accordingly, I will not here impose a further
27 Robertson v R [2016] NZCA 99 at [80].
28 Sentencing Act, s 103(2).
29 Principally being the immediate relevance of Mr Cable’s Boxing Day 2019 offending to the assessment of his overall culpability for Ms Reid’s murder.
discrete uplift for that offending. For reasons I will shortly explain, neither will I impose a discrete uplift for your previous convictions.
Discounts for personal circumstances
[91] I consider discounts are warranted from the notional MPI in respect of both your family background and your guilty plea.
[92] As to the background — social, cultural or economic deprivation with some causal relationship to the offending may diminish an offender’s moral culpability.
[93] The s 27 report I have received refers to your alienation from your whakapapa and heritage, your unfamiliarity with te reo Māori and your lack of understanding of tikanga and other Māori cultural practices. It suggests that this may explain your attraction to gang culture where you became predisposed to committing acts of violence against women. It suggests a clear nexus between your cultural deprivation and the offending for which you are being sentenced today.
[94] I prefer to see your deprivation in simpler terms. I accept your father was an incompetent, violent and abusive parent who provided no role model for you whatsoever in your formative years. His gang affiliations became your own. He violently assaulted your mother on multiple occasions, many of which involved hospital attendances. It is in that context unsurprising that you emerged with similarly abusive attitudes towards women. There was also very significant material deprivation and instability in your childhood, including a move to Australia in early adolescent years after your mother could take the abuse no longer, and then a return to New Zealand where, once again, you were exposed to your father’s excesses. You were also sexually abused contributing to your unresolved anger. All of these features weigh in the man Darkie Cable ultimately became and I accept manifested in the index offending. By the same token, however, the criminal law is built on the foundations of agency and choice. No-one compelled you to follow the path that you did. There were many who tried to steer you in a different direction. Your mother, a devout
Christian, did her best. Despite also being exposed to your father’s influence, you have siblings who have excelled in life.
[95] The cases emphasise that one size does not fit all in respect of discounts for deprivation. As this Court observed in Solicitor-General v Heta.30
Nor is there a clear unifying principle for applying discounts for deprivation. Rather, personal circumstances discounts tend to be informed by a multiplicity of overlapping factors, including deprivation, trauma, youth, drug and alcohol abuse, and mental health issues. “Deprivation” is in many cases difficult to separate from these other factors because it is associated with and explanatory of them. What is tolerably clear, is that larger discounts tend to rely on identifying linkages between personal circumstances and the offending and thus the moral culpability of the offender. Mercy is another apparent reason.
[96] The cases also emphasise that only limited deprivation discounts are available in respect of very serious violent offending and, in particular, murder.31 That is not to say no discount should be given. But the seriousness of your offending will influence the extent of what discount is available.
[97] I am also conscious that the Court must be careful not to conflate correlation and causation: “many people with disadvantaged backgrounds do not commit criminal offences, and many law abiding people remain so despite difficult lives”.32 And offenders’ own purposive decision-making remains salient:33
Raupatu (referring to the Māori history of confiscation) and resulting social deprivation may lead to gang membership and on to index offending. But for sentencing purposes other causes, chief among them the decisions made by the offender, may weaken that linkage between background and index offence, and ongoing gang involvement engages other sentencing considerations which may preclude a discount.
[98] Additionally, although I have not imposed an uplift to your MPI for your previous convictions for violence, and in particular violence against women, I do see these as a counterweight against the credit that might otherwise be given for deprivation. As I have already mentioned, you have seven such previous violence convictions, including one for wounding with intent to cause grievous bodily harm.
30 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [63].
31 See, for example, Davidson v R [2020] NZCA 230 at [33]; Carr v R [2020] NZCA 357 at [67];
Keil v R [2017] NZCA 563 at [58]; and R v Duff [2018] NZHC 2690 at [23].
32 R v Patangata [2019] NZHC 744 at [45].
33 Purua-King v R [2020] NZCA 61 at [9].
Had I applied an uplift for those convictions, it would have been in the vicinity of six months’ imprisonment.
[99] Balancing all these considerations, I allow a discount of five per cent for deprivation. Rounding down, that represents a reduction in the non-parole period of eight months from the starting point of 13 years and six months previously identified.
[100] Turning then to your guilty plea, as I have indicated, this came on the morning of trial. Significantly however, it spared your children having to give evidence about their mother’s murder.
[101] Various decisions of the Court of Appeal assist my assessment of what discount is appropriately given. That Court has observed that a “guilty plea on the first day of trial is treated as late and usually deserving of only a very modest discount, if any”.34 It has also been said that the effect of guilty plea discounts is significantly constrained in the context of MPIs.35 Nevertheless, an early guilty plea in a murder case to which s 104 applies can attract a discount of between 12 months and two years.36
[102] I intend to allow nine months (or approximately 5.5 per cent) on a starting point of 13 years and 6 months’ imprisonment. I do so primarily on the basis of the social utility of sparing witnesses participating in the trial.
[103] In total, therefore, I would recognise discounts of one year and five months from the MPI previously identified.
Conclusion on MPI (apart from s 86E)
[104] On the basis of the preceding analysis I would, apart from the operation of s 86E, sentence you to a non-parole period (rounded down by one month) of 12 years’ imprisonment for the murder of Ms Reid.
34 Huata v R [2013] NZCA 470 at [42].
35 See, for example, Momoisea v R [2019] NZCA 528 at [35]–[36]; and Malik v R [2015] NZCA 597 at [35]–[37]. Both, however, were cases to which s 104 of the Sentencing Act applied.
36 Vea v R [2020] NZCA 68 at [21].
Would an end sentence of life imprisonment without parole be manifestly unjust?
[105] On 2 August 2021 I administered a second strike warning at your arraignment. This followed a first strike warning given in the Tauranga District Court on 31 May 2013, after conviction for wounding with intent to cause grievous bodily harm.
[106] As such, you are subject to s 86E of the Act, which requires that I sentence you to life imprisonment without parole on the murder charge, unless satisfied that it would be manifestly unjust to do so. In the event of a finding of manifest injustice I am required to order that you serve an MPI in accordance with s 103 of the Act.
[107] The Crown abides the Court’s decision as to whether the manifest injustice exception in s 86E(2)(b) is engaged. The defence likewise submits that it is “a matter for the Court”.
[108] The approach to manifest injustice under s 86E is different from that taken under ss 102 and 104 because of the “fundamentally different statutory purposes, context and consequences”.37
[109] There has not yet been any case where a Court has found that it would not be manifestly unjust to impose a sentence of life imprisonment without parole on a second strike (or even a third strike) murder offence.38
[110] In Harrison, the Court identified that the relevant inquiry should take place against the background of a presumption in favour of life imprisonment without parole and involves assessment of whether this would be “grossly disproportionate”. The inquiry is to be made having regard to all the circumstances of the offending and of the offender, the circumstances of the first strike offending and by reference to the public’s right to protection and the case law. I discuss each of these below.
37 R v Harrison, above n 6, at [107].
38 See, for example, R v Winter [2020] NZHC 1115; R v Tai, above n 11; R v Harrison, above n 6; R v Kingi [2016] NZHC 139; R v Herkt [2016] NZHC 284; R v Eruera [2016] NZHC 532; R v Heihei [2017] NZHC 2243; R v Puna [2018] NZHC 79; R v Davis [2018] NZHC 1162; and R v Oti [2021] NZHC 1800.
Circumstances of the offending
[111]Without detracting from the severity of the offending, I note:
(a)it was not among the most serious of murders, as identified in s 104 of the Act;
(b)the offending was unplanned and relatively impulsive; and
(c)the charge was brought under s 167(b) of the Crimes Act 1961 on the premise that you did not mean to cause the death of your partner, but were reckless as to the consequences of an assault that you knew was likely to cause death. I agree with that assessment of the facts.
Circumstances of Mr Cable
[112] Mr Cable, you are 37 years old. The average life expectancy identified by Statistics New Zealand for Māori males is 73.4 years. Therefore, if the statutory presumption is applied it could result in you spending in excess of 36 years in prison. Although the disparity between the length of a potential sentence without parole and the sentence that would otherwise be imposed by this Court is not as great as in respect of other younger offenders who have been sentenced on second-strike murder offences,39 it is nevertheless a significant one given my assessment that an appropriate MPI, absent s 86E, is 12 years’ imprisonment. In approximate terms you would be spending three times the sentence that would otherwise be imposed. This of itself is a strong pointer to gross disproportion.
Circumstances of first strike offending
[113] I have reviewed the District Court sentencing notes in respect of your 31 May 2013 conviction for wounding with intent to cause grievous bodily harm and male assaults female.40 The former attracted a first strike warning. The Judge referred to the fact that “for no obvious reason, you assaulted an older man. You dragged him
39 For example, the defendant in R v Tai, above n 11, who was only 23.
40 R v Cable DC Tauranga CRI 2012-070-001146, 31 May 2013.
out of his car; you inflicted plenty of damage on him, including a broken eye socket”. Later he described your explanation for the offending as “effectively non-existent”. He said that you claimed, “not to remember anything about it”.
[114] This was serious offending for which a commensurate sentence of five years and three months’ imprisonment (including a 20 per cent discount for guilty plea) was imposed. Likewise, however, it was not among the most serious offence of its kind. I note the maximum penalty for offences under s 188 of the Crimes Act is 14 years’ imprisonment.
Public protection
The Provision of Advice to the Courts (PAC Report) records:Mr Cable’s risk of harm is assessed as very high due to his continued use of serious violence. His risk of reoffending, particularly by way of violence, is considered high. This takes into account his ongoing use and escalation of violence despite him completing intensive rehabilitative intervention. Offending related factors are identified as a propensity for violence, relationships and offending supportive attitudes with substance abuse exacerbating these factors.
[115]This factor weighs in favour of applying the presumption in s 86E.
Comparison with the cases
[116] I have considered a range of other cases under s 86E.41 Each points to the conclusion that the imposition of life imprisonment without parole would, in your case, be manifestly unjust. I base that conclusion on the following considerations:
(a)This case did not involve the very worst type of offending in its class. As indicated, I accept that you did not intend to kill Ms Reid. Nor is s 104 animated.
(b)Although, given your age, a sentence of life imprisonment without parole would be less disproportionate than in respect of other younger offenders, the additional time you are likely to spend in custody over that prescribed by ss 102 and 103 of the Act would nevertheless be very significant.
41 Including those identified at above n 38.
(c)Although the PAC Report suggests a high risk of future violent offending and unresponsiveness to previous interventions, I am not, on the basis of what I have been told by your sisters Maggie and Kata, niece Savanna and nephew Isaac (all of whom present as intelligent, competent and pro-social people), inclined to the view that your position is irredeemable.
Each, in fact, speaks of a strong thread of kindness and good humour in your disposition and of your considerable support for your family over the years. Whether these qualities can be nurtured and developed to the exclusion of the violent aspects of your disposition is a matter which the Parole Board will be particularly well qualified to assess in due course. However, at least some opportunity should be given for you to prove your potential.
(d)Your particularly troubled childhood involving, as I have said, a violent, gang-affiliated and alcohol-abusing father, which must ultimately be considered at least partly responsible for your life outcomes.
Conclusion on s 86E
[117] I therefore conclude that it would be manifestly unjust to impose a sentence of life imprisonment without parole for your murder of Ms Reid.
Sentences for Boxing Day 2019 offending
[118] I earlier adopted the approach of building allowance for the Boxing Day offending into my identification of starting point on the murder charge. It is, however, still necessary for me to fix sentences for the earlier offending. This will be on a concurrent basis, meaning you will receive no effective extra penalty for the offending.
[119] There is substantial similarity between the two discrete episodes of your Boxing Day offending. Accordingly, I consider they should attract the same starting point. The same aggravating features are present in both. The same discounts apply to both. Both should attract identical end sentences.
[120] Strictly, there is no applicable tariff decision. However, R v Taueki offers some guidance. I accept the Crown’s submission that your offending “falls squarely” within band two of Taueki, which attracts a starting point of between five and 10 years’ imprisonment.42 Appropriate adjustment needs be made to reflect that injuring with intent is a less grave offence than wounding with intent, the latter offence being that specifically referenced in the Taueki sentencing bands.
[121] I have had regard to comparator cases on injuring with intent.43 They indicate that the available sentencing range is between three and a half years’ imprisonment and seven years’ imprisonment. It is unnecessary to embark on a granular comparison of your offending with that of the offenders in those cases. Shortly stated, I regard a starting point of four years’ imprisonment as appropriate, having regard to the aggravating factors of prolonged violence, attacks to the head and the vulnerability of the victim but taking into account also the fact that I have built the circumstances of your December 2019 offending into the sentence on your lead charge.
[122] I allow deprivation and guilty plea discounts from that starting point of six months, noting that guilty plea discounts outside the MPI regime are not subject to the same constraints.
[123] In the result, I determine that for each of the two convictions of injuring with intent, you are to be sentenced to a period of three years and six months’ imprisonment.
[124] I note that under s 86C(4) of the Act that you are to serve the full term of such sentence, but such is academic in the context of your sentence on the lead charge.
Result
[125]Mr Cable, would you please stand.
[126] On the lead charge of murder, I sentence you to a period of life imprisonment with a non-parole period of 12 years.
42 R v Taueki, above n 8, at [34].
43 Kiri v R [2021] NZCA 155; Kulimoenga v R [2016] NZCA 129; and Morgan v R [2009] NZCA 341.
[127] On each of the two charges of injuring with intent to cause grievous bodily harm, I sentence you to a period of three years and six months’ imprisonment, both such sentences to be served concurrently with your sentence on the lead charge of murder.
[128]Stand down please.
Muir J
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