R v Carroll
[2017] NZHC 2691
•2 November 2017
SUPPRESSION ORDERS IN RESPECT OF PERSONS NAMED IN SENTENCING REMARKS IN PARA [1]
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2016-009-004274 [2017] NZHC 2691
THE QUEEN
v
PETER JOHN CARROLL
Appearances: B Hawes and C J Boshier for the Crown
T W Fournier and S G Bailey for the Defendant
Sentencing:
2 November 2017
SENTENCING REMARKS OF NICHOLAS DAVIDSON J
[JUDGE HAS DISCUSSION WITH COUNSEL REGARDING SUPPRESSION]
[1] Before we bring Mr Carroll in, I just want to remind the media that there have been suppression orders made in this case, and there are two further orders to be made, the names of these people will be mentioned in the course of the submissions and the sentencing. The suppression orders apply to the evidence of [XXXX]. So those names are suppressed from any form of publication.
[MR CARROLL IS BROUGHT BEFORE THE COURT]
A. INTRODUCTION
[1] You may be seated Mr Carroll.
R v CARROLL [2017] NZHC 2691 [2 November 2017]
[2] Proceed with the Victim Impact Statements.
[VICTIM IMPACT STATEMENTS ARE READ IN COURT]
[3] Mr Carroll you may be seated until sentence is pronounced. [4] You appear for sentence for the murder of Marcus Tucker.
Mr Tucker’s family
[5] I first acknowledge Mr Tucker’s family in court this morning. Your grief and the profound effect on your lives will be reflected in the sentencing. I express the sympathy of the court and of the community to you.
[6] Your statements made to the Court need little elaboration, but they are relevant to the sentencing process. These few points stand out to me amongst many made this morning, to reflect the grief and impact on your lives.
[7] Mr Tucker had taken a path which caused you, his family, distress. But you loved him. I have listened to them Mr Carroll, and hope that you have too, to understand the profound consequences of what you regard as coming with the world in which you lived, a world of drug use, dealing, and violence, which has extended
by your actions to devastate the lives of Mr Tucker and his family and friends.
[8] He was the father to three children, the oldest 18 when he died. [XXX’s] mother has had her family and work life turned upside down and [XXX] has been stopped in his tracks, and his education, and [XXX] properly puts it for the families of all who suffer a murder of one of their members when she says “How do you deal with the issue of a family member being murdered and all that surrounds that?”. So many of her and other thoughts of the family have been focused around “Marcus and his horrific death”. There are no illusions held within the family about Marcus’ (Mr Tucker’s) lifestyle and his associations. [XXX] left him to provide a better future for her and her son. But the family expected Mr Tucker would pull himself together at some stage, because he was a man who, in his own way, loved his
children, and she and others felt contact would eventually be opened between
Mr Tucker and his son, so important for any child.
[9] Little tangible has been left of Mr Tucker, a few letters, but a lot of memories and a lot of thoughts. The view of all the family of Mr Tucker, is that after a while you will slip back into your normal life, but you have left the family facing the real “life sentence”.
[10] The evidence of Mr and Mrs Tucker, Marcus’ parents, is poignant and telling. He was Mrs Tucker’s first born and you took him away, in her words, from his Mum and Dad, brother and sister, and his three children, his nieces and in the words you heard today, their “dreams, hopes, family times have been smashed, ripped away from us, as a family forever”.
[11] Mr Tucker’s father has lost the chance of being able to mend a fractured relationship. There will never be another meal, a hug, another bed for him to lie in.
[12] [XXX] refers to the pain and hurt inflicted on the whole family. There is telling evidence of what it meant for each member of the family to see Mr Tucker after his body had been recovered. What they were allowed to see. What they were allowed to touch. This is the consequence of his murder.
[13] His young son expresses his bewilderment and his whole life will be confounded by what happened to his father.
[14] There is a clear sense in the Victim Impact Statements that the family has also had to contend with the reporting of Mr Tucker’s lifestyle, but he was not, and is not, on trial.
B. LIFE IMPRISONMENT
[15] A sentence of life imprisonment for murder must be imposed unless the court considers that would be manifestly unjust.1 And your counsel accept that you must be sentenced to life imprisonment.
[16] I am required by law to determine the minimum period you will spend in prison before you become eligible for release on parole and the absolute minimum is
10 years. The Crown submits that s 104 of the Sentencing Act, which I will call “the Act”, applies given the high level of brutality and callousness, and callousness, and the minimum period of imprisonment should be 17 years. If not, it seeks a sentence of 14-15 years. Mr Fournier with Ms Bailey submits that s 104 does not apply at all and a minimum sentence of 12 years is within the range of other sentencing.
C. CORE FACTS
[17] I come to some core facts in considering the submissions of counsel.
[18] Your defence was mounted, in my view, with economy and skill by Mr Fournier with Ms Bailey. You gave evidence to say that this was an assault on Mr Tucker which simply went wrong, and you did not mean to kill him.
[19] The Crown alleged that you murdered Mr Tucker in any one of three ways. First, that you intended to kill him. Secondly, that you caused Mr Tucker very serious injury and was reckless as to whether he died or not, when you could foresee that possible consequence. Thirdly, it was alleged that you caused him grievous bodily injury, which is serious injury, from which he died, while kidnapping him. There was a factual foundation for all these forms of murder.
[20] I agree with the Crown’s submission that the incontrovertible evidence demonstrates a vicious and brutal assault to Mr Tucker, concentrated on the back of his head, which caused his death. The assault as such was pre-meditated. You took the wheel-lock to Ruskin Street for that purpose, and I so find. These core facts are
securely made out on the evidence. Your explanation in evidence was that you were
1 Sentencing Ac 2002, s 102(1).
not aiming for the head, as you told the jury, but that was simply not credible given the number of wounds visible to the head, their size, their length and depth, and their “grouping”. This is consistent only with a determined attack to the head. The attack was unprovoked and one sided. Mr Tucker did not know you were coming to the house. While he resisted, most of his injuries were to the back of the head and in a grouping which demonstrates repeated strikes, on the evidence of Professor Duflou, up to six times, as Mr Fournier has said.
[21] There were two reasons or motives the Crown put to the jury as to why you did this, either to “sort out” the man you thought was known as “Ruckus”, because you were asked to do so after Ruckus’ assumed involvement in an armed robbery at Rolleston. This is consistent with your taking Mr Tucker’s body to [XXX] to show him after Mr Tucker died and referring to him as a present. Alternatively, the Crown submitted that on your own version of events Mr Tucker was involved with badly faked one hundred dollar or “Rutherford” notes as they were described, which were in circulation at this time, which [XXX] and you gave diametrically opposed evidence about. Whatever your motive, you went to Ruskin Street with a weapon, to assault him.
[22] There is evidence that you said to a witness later that night, that you must have hit him too hard and there were other written statements to that effect. This is more consistent with your causing Mr Tucker grievous bodily harm being reckless as to his death, or for the purpose of kidnapping than intending to kill him and I tend to agree with Mr Fournier’s submission in that regard.
[23] There is evidence of your callousness in the way you carried out the assault and when you took Mr Tucker’s body away in the boot of the car before setting his body alight in a futile attempt to destroy evidence. You then simply dumped him by the side of the road. You disposed of the murder weapon and you made remarks that Mr Tucker had deserved what he got.
[24] Sentencing requires further evaluation of the level of callousness and I have been much helped by counsel’s submissions, to which I will shortly refer.
Your background
[25] I want to say something about you. An unusual feature of your committing the crime of murder, is that you have no record of violence. Your criminal record is long, but not as long as this Court is used to seeing in serious cases such as this. You have committed offences in Australia and New Zealand, but primarily that involves drugs and dishonesty, and I suspect the two are linked.
[26] You were sentenced to imprisonment in 2010 in the Hastings District Court, for possession of utensils associated with drug use, possession and use of utensils associated with cannabis and methamphetamine use, burglary, other drugs, receiving other property, theft, unlawful interference with a motor vehicle and taking unlawful pecuniary advantage. In 2000 you were sentenced for the production of cannabis oil and cultivating cannabis. You have other convictions for theft, possession of cannabis, possession of instruments, manufacturing cannabis, receiving, burglary and theft. You have earlier convictions associated with methamphetamine and cannabis, and in Australia for the administration and supply of a prohibited drug, of methamphetamine, theft, administering a prohibited drug, and possessing house breaking instruments.
[27] Yet, you are at the same time, a man who is able, intelligent, and qualified to hold down a building job and to gain qualifications. Yet you lived in another world where the use of methamphetamine by you and your associates, and of other drugs including synthetic cannabis, influenced your everyday living and that other world is very clearly why you are for sentence today.
D. THE CROWN’S SUBMISSIONS
[28] Mr Hawes has referred with Ms Boshier to the purposes and principles of sentencing reflected in the Act, and they all apply, and some have specific application to the sentence.
Aggravating features
[29] First of all, the Crown submits that these aggravating features are present, the first being that of extreme violence.
(i) Extreme violence
[30] The Crown characterises this as an unprovoked, violent and senseless killing. Mr Tucker was heard begging for mercy while you coldly and clinically beat him. The attack was concentrated, but not confined, to the back of his head and significant injuries were inflicted. You brought a heavy steering wheel lock with you, and you plainly intended to use it, I so find. Given the weapon and the beating, it was no surprise to Professor Duflou, that Mr Tucker died, although the force was “moderate” on the scale he used, as with more severe force given your strength and rage the skull would have been fractured.
(ii) Loss, damage or harm
[31] Secondly, loss, damage or harm, to which I relate the statements made by the family today. Mr Tucker has lost his life. He will experience none of the things that he might have expected to have enjoyed, in particular his family. The legacy of his death falls on his family who have suffered and will suffer immensely as the result for all of their lives.
(iii) Particular cruelty in the commission of the offence
[32] The Crown submits there was particular cruelty. You were heard clinically instructing Mr Tucker to “lie down, get on your stomach” while he begged for his life. After he died, or while he was dying, you tied him up and put him in the boot of the car which you had backed into the driveway. I believe you thought how you might use his death to your advantage, but you found that things had gone wrong. Mr Tucker was not “Ruckus”. You sought to distance yourself by disposing of Mr Tucker’s body by fire, to remove all DNA or other traces which might lead to you.
(iv) Premeditation
[33] I consider it is clear that this assault was premeditated and I agree with Mr Fournier that you went there, probably not to kill him, but to hurt him badly and from which his death has ensued. I think it probable that the true version of events is associated with [XXX] who said he informed you and [XXX] about the robbery at Rolleston, and that he would like to “take Ruckus’ head off”. The response from [XXX] and you was that you would “rough him up and take photos”. The evidence was that the person who had caused grief, one way or another, was at P-line, [XXX’s] house, and you were told to “sort it”. You took a weapon, and you commenced the attack soon after entering the house.
Mitigating features of the offending
[34] The Crown submits there are no mitigating features to the offending.
Aggravating features personal to the offender
[35] As to aggravating features personal to you, you have no offences for violence in Australia or New Zealand, I think the Crown is quite correct to seek no uplift on the sentence that would otherwise be imposed in that regard. Your previous convictions are essentially for dug offending and dishonesty, I repeat, I consider they are probably linked.
Mitigating features personal to the offender
[36] There are no personal mitigating features, but there is an indication that you would like to apologise to the Tucker family, but you do not expect to have that opportunity. The Crown submits there is no genuine remorse for taking Mr Tucker’s life.
Sentencing regime for murder
[37] The sentencing regime for murder reflects the usual purposes and principles of sentencing, but as counsel have correctly identified, ss 102-104 of the Act provide a special regime. You must be sentenced to life imprisonment unless that would
be manifestly unjust. There are no such circumstances here, and you must then be ordered to serve a minimum period of imprisonment which may not be less than
10 years, but the Crown submits s 104 of the Act applies and a minimum sentence of
17 years imprisonment should be imposed as the murder was committed with a high level of callousness under s 104(1)(e) of the Act.
[38] The Court of Appeal has addressed the correct approach in two steps.
[39] The first is to consider your degree of culpability in relation to a “standard range” of murder, and to decide whether a s 104(1)(e) factor is established, to decide if that characteristic is sufficiently serious, at such a level, as to justify a minimum term of imprisonment of not less than 17 years. If that is so, with an exception, the minimum term must reflect that.
[40] The exception comes in the second step when the imposition of a 17 year minimum term is thought to be manifestly unjust. That is where the Court decides as a matter of overall impression that the case falls outside the scope of the legislative policy that murders with the specified features, here the high level of callousness, are sufficiently serious to justify a 17 year minimum term.
Section 104(1)(e)
[41] The Crown’s position is that s 104(1)(e) applies because of the high level of callousness in this murder. Now all murders, as other courts have said, involve a degree of brutality, cruelty, depravity or callousness, but this must be to a “high level” and the “high level” assessment has to be approached in a way which addresses the purpose of this section, which is to mark out more extreme or exceptional cases.
[42] The Crown does point to the “brutality” of the attack, numerous strikes, at least six, to the back of the head with a heavy wheel lock, and other strikes. The location of the injuries shows the attack was inflicted from behind, with only one blow to the front of the face. It was a concentrated attack to the head, with a heavy weapon.
[43] “Callousness” has been mentioned by counsel. It has been defined as a
“hardened state of mind”, “without feeling”, and a “numbness of the soul”.2
[44] The Crown submits there is a high level of this feature, because of the cool and detached way in which Mr Tucker was killed, indignities to him which included his being presented in the boot as a “prize” or “present”, burning his body, and then
dumping it in a location where he would obviously be found.
[45] Mr Tucker was vulnerable, last seen asleep by [XXX]. You say in evidence you saw him lying down but then next time he was sitting up on the bed, but whether that is true or not, he had no ability to defend himself from a sudden, unexpected attack, but he did the best he could. This was not a frenzied attack, but calculated and determined. You first struck him to the face. Your evidence of the attack is submitted to be cold and clinical when you told the jury how Mr Tucker fought for his life, just as[XXX], known as “[XXX]”, described in his evidence.
[46] Your callous attitude is also submitted by the Crown to be evident in your comments to [XXX] that he “deserved it” and to the Police that he was a “rip off artist” and a “scumbag” and you and others would like to shake the hand of whoever had killed him.
[47] The Crown also refers to the indignities visited to his body, in the disposal by burning it and dumping it. The indignities to him, to his family and friends, and the disposal of items from the crime scene, including the murder weapon.
[48] Put together, the Crown says this brutal murder, was committed in cold blood to a defenceless man, with a high level of callousness, to sort out a dispute of some sort, to teach him a lesson, with a lethal weapon. Mr Hawes submits your conduct after the murder should be brought to account in assessing callousness. The deliberate and gross mutilation of Mr Tucker’s body is a relevant factor. There are
several cases cited by the Crown which bring to account the conduct after murder, in
2 R v Mason [2012] NZHC 1849 at [44] and R v Christison [213] at [38].
disposing of the deceased’s body. In a number of cases that treatment of the victim’s body after death elevated callousness into or beyond the “high level” required.3
“Manifestly unjust”
[49] If so, and a high level of callousness is established the Crown says that s 104(1)(e) is engaged and that takes the Court to the next question whether a
17 year minimum term would be manifestly unjust. The Court of Appeal in R v Harrison,4 emphasised that the enquiry is factual, so the injustice must be clearly demonstrated for the discretion to go below the 17 years minimum.
[50] That statutory minimum may not be departed from lightly. The Court of Appeal in Malik v R explained that and the citation will appear in the sentencing notes:5
A lesser minimum period would be warranted where the court decides as a matter of overall impression that the case falls outside the legislative policy that certain murders are sufficiently serious to warrant at least that minimum period. The full range of sentencing criteria in ss 7 to 9 of the Sentencing Act may inform that overall impression, but because the legislative policy in s 104 must be respected, powerful mitigating factors may be needed to displace the 17 year presumption.
[51] If s 104 is not engaged, the Crown submits a minimum period of 14-15 years is justified, and it cites the sentencing in R v Reekers.6
E. SUBMISSIONS ON YOUR BEHALF
[52] I turn to submissions on your behalf. Mr Fournier’s submission is that the court should not be satisfied beyond reasonable doubt of the “high level” of brutality or callousness. The Crown’s submission has focused in sentencing on callousness. His submission is that given Professor Duflou’s evidence of six strikes to the head with moderate force that puts the level of brutality falls within the “standard range”
of murders and “more blows, longer duration of assault or different types of injuries”
3 R v Gosnell [2013] NZHC 1313; R v Korewha {2015] NZHC 308; R v Roigard [2016] NZHC
166; R v Moore (HC Wellington, CRI-2006-085-4361, 11 April 2008); Akash v R [2017] NZCA
122; and R v Davies [2017] NZHC 729.
4 R v Harrison [2016] NZCA 381.
5 Malik v R [2015] NZCA 597 at [32].
6 R v Reekers [2011] NZCA 383.
would be required, and I agree with that and that the Crown has not advanced its position today in sentencing on the basis of a high level of brutality.
[53] The point is that there has to be something beyond the level of callousness which is present to some degree in all murders, to make the offending “especially serious” or exceptional in one of these respects, here callousness.
[54] Mr Fournier also submits that the wording of the section makes it clear that the murder itself must be committed with a high degree of callousness, but he accepts that the court may look at conduct before and after the killing. He submits that callousness to a high level in burning Mr Tucker’s body after death, does not of itself warrant a finding of a high level of callousness overall. I consider a high level of callousness may be reflected in conduct before, during and after the act which causes death. Callousness is to do with the state of mind, and attitude of the person who commits the murder, reflected in what they say and do, and all relevant evidence must be brought to account. In my view, not to do so would risk error in the assessment of callousness.
[55] Nevertheless, Mr Fournier says that the idea to burn Mr Tucker’s body was only formed after he died, in response to what he called in his written submissions as an “unanticipated event” and it was not part of your mindset at the time of the actual assault which caused his death. He refers to [XXX] making contact with [XXX] after Mr Tucker’s death, when the plan for disposal of the body was first considered. Mr Fournier’s submission is that burning Mr Tucker’s body was indeed callous but
does not elevate the murder itself to a high degree of callousness.
[56] He also submits with Ms Bailey that the collective evidence of [XXX], [XXX] and [XXX] is that you apologised in the sense that you said you were sorry and said that you had hit Mr Tucker “a bit hard”, and this too goes to callousness. I have said that I tend to agree with Mr Fournier that the jury verdict is consistent with reckless killing rather than an intentional killing and in that regard your comments to [XXX], whose evidence was credible in this regard I find, supports that, when you said to her that you had hit him perhaps a “bit hard”.
[57] Mr Fournier challenges the submission for the Crown regarding your “sorting out” Ruckus, given by [XXX] and submits that I need to be satisfied, beyond reasonable doubt, that this was the motivation for murder. I do not agree that I need to do that. I have to look at the conduct, your conduct, your attitude in assessing callousness. I also do not accept that your comment that Mr Tucker “got what he deserved” was your trying to rationalise an unintended death. You undoubtedly went to Ruskin Street with real malice directed towards the man you thought was Ruckus. Added to that is your desecration of Mr Tucker’s body by setting him alight.
[58] The sentencing in the case of R v Merritt is cited by Mr Fournier, a case with which I was involved. Callous indifference was shown by Mr Merritt to his victim after her death but there were other mitigating personal factors associated with the offender in that case, not present here, and the Crown did not seek the application of s 104 of the Act.
[59] In short, Mr Fournier submits that there was a level of callousness, perhaps, but not to the exceptional standard required under s 104 so s 103 of the Act is engaged to decide or evaluate whether a 10 year minimum is insufficient to meet the four purposes of sentencing which apply. The sentence may be increased beyond
10 years to hold the offender person accountable for harm done, denounce the conduct or for deterrence and to protect the community.
[60] You have heard the Crown submit that if s 103 of the Act applies, the sentence should be 14-15 years citing the case of R v Reekers, where a prisoner was stabbed, and the offender had a record of violent offending against women. Mr Fournier submits that case does not offer any real help and cites the case of R v Fa, which involved an attack to the head with a hammer and the use of a knife, and s 104 was found not to be engaged, because the level of brutality, cruelty, depravity or callousness was not reached under the threshold required by law.
[61] Mr Fournier also refers to R v Callaghan which he says is similar, an assault with blunt force to the head and face, and attempts to conceal what had happened where Justice Venning accepted that that section was not engaged. In the cases of Tait and Rajamani, sentences of 11 and 12 years minimum were imposed and
Mr Fouriner’s submission with Ms Bailey was that a minimum term of 12-13 years is sufficient to reflect the principles and purposes of sentencing and to impose the least restrictive outcome. In Fa a 14 year minimum was imposed, with aggravating features, including intrusion into the victim’s home, presence of children, and threatened attacks to police officers.
[62] Mr Fournier points out that if a minimum period of 12 years is imposed, as he submits, you would not be eligible for parole until you are 65 years of age and even though, would not necessarily be paroled. That is for the Parole Board.
F. PAC REPORT
[63] Before I turn to my conclusion I want to address what is called the PAC Report, the advice to court given through Probation, Department of Corrections.
[64] This recognises that you have no prior convictions for violence, but I think it is helpful both for sentencing purposes and for the family of Mr Tucker, and for the public, to understand what it means when the report writer says that you conceded that use of violence is inevitable in the culture of drug dealing. It was clear throughout interview that you, like most involved in the drug world, regard a high level of violence against others as normal, and acceptable, as a way of punishing and intimidating debtors. The report writer correctly says the conviction for murder increases the risk you pose to others, although your age and lack of offending since
2010, and the intermittent nature of your convictions before that, suggest the likelihood of any re-offending is low. The fact is that the risk factors for you are drug use and the associated lifestyle, with criminal associates, attitudes of entitlement, and a propensity for violence.
[65] You are quite open that you have sold drugs for a living for much of your life, but there have been periods when you have earned a legitimate income. You were accepted for a building apprenticeship when you moved to Christchurch 2012 and were awarded a builder’s licence in December 2015, soon after you reconnected with an associate. In early 2016 you began your work, but your attendance declined because of your increasing substance use, and you lost your job. You “spiralled
down in a big way”, a quotation from the report, living off drug dealing, and you attribute Mr Tucker’s death to a drug deal that went wrong.
[66] You are estranged from your partner and your two children. However, you have had the support of a Christian family for three and a half years in Christchurch, before your lifestyle changed for the worse.
[67] You have expressed regret and remorse for the impact that your offending has had on that family, which put itself out to help you.
[68] It is clear from all this and the way you gave evidence that you are a man with ability, and you have had good jobs over the years. It seems your progress towards a law abiding lifestyle, and employment, has always faltered when you increased your substance abuse, and took the easy road dealing in drugs to make a living.
[69] Your said to the probation officer is that you did not intend to kill Mr Tucker, but you were going to “teach him a lesson” and intimidate him for his dishonesty relating to a drug debt, but the assault got out of hand when he fought back instead of simply, in your words, “taking it”. You attribute the strikes to the head, rather than the shoulder or back, because of the steering wheel lock design, and you say you would apologise to Mr Tucker’s family if you could.
[70] At the time, you say that you were using methamphetamine to harmful levels, and using cannabis and synthetic drugs to “fit in” with your associates, but they were for social use, rather than an addiction. You say you can use, or have used, methamphetamine as a mood elevator, and you thought you had it under control so you were only a social user, but when things went wrong in your life, that led to your offending. The sequence of rehabilitation, then drug use, then involvement in the drug trade, then more serious drug use, and then violence, is stark.
G. SENTENCING
[71] I come now to sentencing.
[72] The first issue is whether s 104(1)(e) is engaged. I must be satisfied of that and I must be sure of any disputed aggravating factor.
[73] This was indeed a brutal attack, a severe beating with a heavy weapon to the head. The Crown puts its case as to an extreme level of callousness.
[74] When all facts are brought to account, I find beyond any doubt that the ruthless way this murder was carried out, in a brutal and unpitying assault, the reason for it, and your conduct and attitude to Mr Tucker’s death afterwards, puts your callousness at the extreme end of the spectrum.
[75] I conclude that you had no involvement with “Ruckus” that you knew of, to warrant the actions which you plainly intended. I consider it is highly probable that you went to Ruskin Street in the mistaken belief that “Ruckus” was there, responding to [XXX’s] and [XXX’s] expressed concerns about him in connection with the Rolleston robbery. The evidence of [XXX] is, I consider, important that he had a desire for some retribution towards “Ruckus”. He did not know Mr Tucker. The robbery at Rolleston was about five weeks before, and he told [XXX] and you. Together you told him that you would “rough him up” for you. [XXX] said that he
said he would “like to take his head off”.
[76] After Mr Tucker died, [XXX] received messages and a telephone call from you where he said that there was a prize for him, which [XXX] thought was a shotgun. You referred to a “pressie”. You told [XXX] that you had hit Mr Tucker too hard, or “smashed him too hard”, and you had “caved his head in”. You say to the contrary, that you went to Ruskin Street because you thought the man there was part of the scam involving the $100 notes. When it was put to [XXX] that this was your case, she denied the $1,800 drug transaction you described in evidence. When she understood what Mr Fournier was putting to you about that she said in a telling piece of evidence, as I find: “Are you for real? Really? Now I know that definitely didn’t happen”.
[77] Whichever of these two accounts of why you went to Ruskin Street that day is correct, and I think the first is probable. I am sure that you went to Ruskin Street to sort out the man who was there, and you severely assaulted him. I find you did phone [XXX] before you went to the house to make sure the person who you were going to sort out, whoever he was, was there. You had a wheel lock with you, and you backed your vehicle in which makes it plain that you intended to take someone away. [XXX] said that you asked her to keep Mr Carroll there and said “we need to talk to him”. She was puzzled you rang from where you were “parked down the road”. You say it was to make sure there was no one there you did not want to see,
but I find you were readying yourself for what was to come.
[78] The evidence is that you spoke to [XXX] and then went into the bedroom and confronted an unsuspecting man. You were certainly there to “sort him out”, and you struck him across the face first, to intimidate him, and then commenced to strike him with the wheel lock. He struggled but you kept beating him and inflicted up to six serious wounds to the back of his head, and other injuries, before he finally subsided. You then wrapped and tied him, but him in the boot, and took him to where you met [XXX] eventually.
[79] I do not find that the question of callousness is diluted by your not intending to kill Mr Tucker. You were concerned with your own position and with a callous disregard for the fact that you had taken someone’s life, you set fire to Mr Tucker and left him in a spot which, while remote, meant he would be found.
[80] And then you returned to where you were living, and there you said that you must have hit him too hard. You said he got what he deserved and you said similar things to fellow prisoners.
[81] I consider that all the circumstances surrounding the murder are to be brought to account in assessing the level of callousness. This includes your going to Ruskin Street, armed, taking advantage of a man who was not on guard, that you assaulted him in a calm and efficient manner, dealing with his fighting back, and eventually overcame him. All this was done not in a frenzy but in an emotionally
detached, calm way. Having overcome him, whether Mr Tucker was dead or not, he
was then wrapped and put in the boot of the car ready at hand, before you set off.
[82] The next day on the evidence I find you and [XXX] went to the house and you called [XXX] a “gangsta bitch” and said that she was “cool”. You were cleaning up the devastation that had been left there, and she said you were “grinning”.
[83] This was not a fight in any sense, but a cold-blooded and calculated attack on someone which you planned and carried out with ruthless efficiency. The description of noises coming from the bedroom, of Mr Tucker crying out while you cooly told him to stop resisting, while you beat him, is chilling and relevant to your callousness.
[84] Having considered other sentencings put before me, I find this is at the very high level, of extreme callousness. I conclude that it is part and parcel of the attitude you expressed to the report writer, of violence going hand-in-hand with the drug culture. The fact of such violence, and Mr Tucker’s death, has had very little impact on you, and your interview with the detective which the jury saw, demonstrated a very casual indifference to a man’s death, indeed to a degree of satisfaction, although you were at the time shielding your own involvement.
[85] In the circumstances, I find s 104(1)(e) is engaged, and that section directs a minimum term of 17 years imprisonment and it would not be manifestly unjust to impose such a sentence as there are none of the factors referred to by Mr Hawes such as youth, mental health or any other reason peculiar to you as the offender. The court should not, and will not here depart from the statutory minimum lightly.
[86] Had it not been for this conclusion, I would have imposed a sentence of
14 years, six months imprisonment, akin to that in R v Reekers. I would have placed considerable emphasis on all the factors set out in s 103(2) of the Act, to hold you accountable, to denounce your conduct in the context of a murder associated with methamphetamine use and dealing, and to deter others.
H. THREE STRIKES WARNING
[87] The law requires I now give you one of the “three strikes” warnings.
[88] Given your conviction for murder, I give you a warning of the consequences of another serious violence conviction. You will be given a written notice which contains a list of what are called “serious violent crimes” to which I now refer.
(1)If you are convicted of any one or more serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment, you will serve that sentence without parole or early release.
(2)If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event the Judge must sentence you to a minimum term of imprisonment.
I. SENTENCE
[89] Would you stand please Mr Carroll.
[90] For the murder of Marcus Tucker, I sentence you to life imprisonment, and order that you serve a minimum period of imprisonment of 17 years.
[91] Please stand down.
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Nicholas Davidson J
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