R v Churchis
[2014] NZHC 2257
•17 September 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-004-009214 [2014] NZHC 2257
THE QUEEN
v
STEVEN RAY CHURCHIS
Charges:
Plea:
Murder x1
Wounding with intent to injure x1
Murder - Not Guilty
Wounding with intent to injure - GuiltyAppearances:
J Dixon and L Clancy for Crown
P J B Winter and R McCausland for PrisonerSentenced:
17 September 2014
SENTENCING NOTES OF VENNING J
Solicitors: Crown Solicitor, Auckland
Copy to: P J B Winter, Auckland
R McCausland, Auckland
R v CHURCHIS [2014] NZHC 2257 [17 September 2014]
[1] Firstly I acknowledge the presence in Court of members of the victim, Mr Linder’s family and the supporters of Mr Churchis. Nothing the Court can say or do today can obviously affect what happened last year when Mr Linder was killed but members of Mr Linder’s family have the Court’s sympathy.
[2] Steven Ray Churchis you are for sentence having pleaded guilty to one charge of wounding with intent to injure and having been found guilty by a jury of the murder of Edwin Linder. The penalty for murder in the circumstances of this case is life imprisonment. That is the sentence the Court will impose on you. The issue for today is the length of time you must serve before you are eligible for consideration of parole. I make it clear, however, that even when ultimately you are considered for and granted parole you will still be subject to the sentence of life imprisonment.
[3] On the evening of 30 July 2013 you were in Auckland city with a group of associates, three other youths and two young women. The complainant to the wounding with intent charge, Mr Walker joined your group in Albert Park. He had a
15 bottle box of Steinlager and offered that and cannabis to your group. You drank a number of bottles of beer. The others drank the beer and smoked synthetic cannabis. At about 9.30 pm, after you had been socialising for some time, you deliberately threw a partially consumed bottle of beer at Mr Walker’s head. It struck him on the back of his head. It hit him hard enough to make him fall to the ground. As he got up you attacked him. You punched him numerous times in the face with a closed fist. You also attempted to choke him. He struggled free and ran out of Albert Park towards Queen Street. A member of the public saw his face was covered in blood. He reported your assault on him to a police officer. Mr Walker was taken to hospital. He had bruising to his right eye, extensive facial bruising and tenderness to his mid face, swelling and tenderness to the right of the jaw, swelling and tenderness to his nose, a cut to the lip, and bi-lateral nasal bone fractures. When you were spoken to by the police about that assault you said that Mr Walker was paying too much attention to your girlfriend. You warned him that she was a bit freaked out and to move away. When Mr Walker did not do so you assaulted him.
[4] After that assault you and other members of your group continued to roam aimlessly about the inner city. At the time you and two of them, Alex Spiers and Savoy Dalton were living on the streets. Through CCTV coverage much of your movements were monitored. That footage showed that around 12.42 am in the morning of 31 July, you and a female associate entered Mills Lane off Swanson Street. Mr Spiers and Mr Dalton had gone down Mills Lane a few minutes before you. They had been sleeping down the end of Mills Lane off and on. Shortly after they arrived at the end of Mills Lane they noticed Mr Linder was already there. Apparently he was defecating in an area close to where their gear was and where they slept. They asked him to do it somewhere else. Mr Linder either couldn’t or wouldn’t move on. That annoyed them. Mr Linder told them to leave him alone. At about this time you arrived down the lane. You recognised Mr Linder as a person who had some time before taken a bag of yours. You had confronted him at that time. You told him to pick up what he had done and to move on. You became angry. You assaulted him. You launched a martial arts style kick to his head and then delivered several punches to his head. On your own statement you punched him repeatedly even after he was on the ground. On the evidence of Mr Dalton and Mr Spiers you stomped on his head. In addition to lacerations and bruising to his face, as a result of your assault on him Mr Linder suffered severe traumatic brain injury, a subdural haematoma, cerebral contusion and a fractured eye socket.
[5] After your assault on Mr Linder you and your associates left him lying unconscious in Mills Lane. You then went off to a park and slept for some time.
[6] You returned to Mills Lane the next morning at about 6.40 am. Mr Linder was breathing but was still unconscious. He had moved only slightly from where you had left him. None of you called an ambulance. Mr Linder was subsequently found by a member of the public at about 8.45 am and taken to hospital where, on 3
August 2013, he subsequently died of pneumonia. The pneumonia was a direct complication of the head injuries you had inflicted on Mr Linder.
[7] When you were spoken to by the police you initially denied doing anything more than punching Mr Linder once. But after some time and a break in the interview you disclosed to Detective Ekins that you had kicked Mr Linder to the
head and punched him to the ground and that you had continued punching his head while he was on the ground.
[8] At trial you raised a number of defences, causation, which was not open on the law, self-defence and lack of murderous intent. The jury rightly rejected self- defence. I accept that Mr Linder had been involved in scuffles and confrontations with others in the past and recently before this incident. But even accepting that, and taking the most favourable view of the facts from your point of view, namely that you thought Mr Linder was about to attack one or both of your friends, so that you acted in a pre-emptive strike to defend them, the force you used was entirely unreasonable. The force you used in your attack on Mr Linder was extreme and excessive.
[9] It is also apparent from their questions during the course of their deliberations that the jury accepted you did not directly mean to kill Mr Linder but their verdict confirms that they were satisfied you meant to cause Mr Linder bodily injury that you knew was likely to cause death and you were reckless whether death ensued or not. That conclusion was clearly open to the jury on the evidence. You told the detective yourself that you knew the head kick alone could kill. Despite that you used it against Mr Linder. As I have said, you continued to attack his head while he was on the ground. I also accept the evidence of Mr Dalton and Mr Spiers that you stomped on Mr Linder’s head while he was on the ground. Mr Winter submitted that one of them had said the lane was pitch black and the Court could not be sure of that but the CCTV coverage shows the circumstances of the lane and I accept the evidence of Mr Dalton and Mr Spiers that you did attack Mr Linder’s head in that way.
[10] I turn to your personal circumstances. You are now 18. At the time you killed Mr Linder you were 17. Your parents had separated when you were about eight or nine years old. You initially lived with your mother. You started hanging around with the wrong people. You befriended older school students, began to smoke cigarettes and drink alcohol with them. When you were about 12 years old you were taken to live on the Gold Coast by your mother and stepfather. After they separated you came back to Auckland. You moved in with your father and stayed
with him and his partner for a period of time. But because of your behaviour your father asked you to leave. Through all of this you achieved national educational achievement levels 1, 2, 3 and 4 in business studies and you have been in employment and able to obtain employment in a variety of industries including in a pack house and as a scaffolder.
[11] Although you have had a very disruptive background Mr Churchis it is apparent from what you have been able to achieve despite that and also from the letter that you have written to the Court you are an intelligent young man and you have insight. You say now you still have the support of your biological father and your mother. You will need that continued support.
[12] As I have noted at the time of these offences you were on bail for other unrelated offending. You have appeared before the Court previously on other occasions, but obviously never for anything as serious as this.
[13] You clearly have an issue with anger management. Mr Winter obtained a psychiatric report from Dr Wyness, a consultant psychiatrist in July 2014. You told the psychiatrist you had flashbacks to violence involving your mother. You were affected by her partner’s assaults on her, which you witnessed. Eleven days before the offending in this case you witnessed another such assault. However, in the doctor’s opinion you did not suffer from any post-traumatic stress disorder or anything of that kind.
[14] You have been assessed by the probation officer as being motivated to address your offending behaviour. As I have said the most concerning feature for the Court at this time remains your capacity for violence. That is evidenced by the fact that even after leaving Mr Linder for the second time, just after 6.40 am or so on the morning of 31 July, you threatened your friend Alex Spiers. In the context of him saying anything to the police you admit you said something to the effect of: “I’ll beat you to a pulp, twice as worse as the other two”.
[15] In sentencing you the Court is required to have regard to the purposes and principles of the Sentencing Act 2002. In this case the particularly relevant factors under s 103 are:
(a) to hold you accountable for the harm done to the victim and the community by serious violence;
(b)to provide for the interests of the victims of the offence, the family of the deceased;
(c) to denounce your conduct and to deter you and others from committing similar offending; and
(d) to protect the community from you.
[16] In fixing the minimum non-parole period the Court must also take into account your culpability and the seriousness of the offence as reflected by the maximum penalty of life imprisonment. The sentence must also be consistent with other sentences for similar offending. In that regard I have considered the cases referred to by counsel.1 I am also directed to take into account any information concerning the effect of the offending on victims.
[17] The statements from Mr Linder’s family express the loss they have suffered as a result of your actions. They will be affected for years, perhaps for the rest of their lives. As Mr Linder’s mother said, no-one deserves to die as he did. His death and the manner of it will continue to haunt them.
[18] As I indicated at the outset Mr Winter has realistically accepted that a sentence of life imprisonment is appropriate. The issue is the minimum non-parole period you must serve. The Crown submit 12 to 14 years is appropriate and Mr Winter argues that 10 years is sufficient. The first consideration is whether s 104 of
the Act is engaged. The Crown submit it is because Mr Linder suffered significant
1 R v Accused [1998] 1 NZLR 422; R v Nelson [2012] NZHC 3570; R v Williams [2005] 2 NZLR
506; R v Broughton HC Rotorua CRI-2008-269-62, 26 March 2009; R v Taueki [2005] 3 NZLR
372 (CA); R v Piilua HC Christchurch CRI-2005-009-011878, 1 September 2006; R v Thomas
CA138/05, 6 July 2005; Fraser v R; Selby v R [2010] NZCA 313; R v Berry HC Auckland CRI-
2010-092-2165, 7 December 2010; R v Fa’avae HC Auckland CRI-2006-204-748, 10 July
2008; and R v Edwards HC Invercargill CRI-2003-025-007292, 9 August 2004.
physical impairment so that he can be said to have been particularly vulnerable to your assault on him.
[19] For that to be taken into account it must in my view have been or should have been known or obvious to you. In each case the Court needs to consider whether that is so. Obviously in cases involving the killing of a baby or an elderly person it will be self-evident. In the present case Mr Winter submits there is no evidence you were aware of the particular physical disability Mr Linder suffered from. The evidence confirms that Mr Linder was known to you but Mr Winter submits that when you described your interactions with him you did not describe any reference to his physical disabilities, also that when you had seen him on previous occasions and had given him money for instance he had been sitting down.
[20] Against that Mr Dixon referred to a number of factors. This was not the first time you had had dealings with Mr Linder. You had not only just passed him in the street and given him money, he was homeless like you, and you had a previous dealing with him in which he had taken something of yours and you had assaulted him at that time. While obviously you would not have been aware of his underlying and existing brain injury, I am satisfied you were or should have been aware of his apparent physical injuries, his limp, his inability to raise his arm fully and his inability to communicate effectively, all of which contributed to and satisfy the requirement that he had a particular vulnerability you were aware of.
[21] However, even accepting that s 104 is thus engaged, I am satisfied that this is a case where it can properly be said it would be manifestly unjust to impose the minimum period required by that section. The relevant factors which lead me to that conclusion are as follows:
· your youth;
· your lack of premeditation in this case;
· your personal circumstances;
· your remorse as evidenced in the interview;
·it cannot be ruled out that while you had used excessive force in self- defence you did act in the mistaken self-defence of others;
·the vulnerability that Mr Linder did suffer from has to be balanced that he had been involved in confrontations with others in the past and had been able to act to defend himself in those situations;
·the pre-existing brain injury he suffered from was not known to you and it may have been a factor in the decisions the medical personnel made in relation to his treatment and his ultimate death;
·it is also relevant the jury found you guilty under s 167(1)(b) rather than s 167(1)(a).
[22] For all those reasons I consider it will be manifestly unjust to apply the minimum period prescribed by s 104. In fixing the appropriate minimum non-parole period I take into account the following factors:
(a) the purposes that I have referred to previously;
(b)the aggravating features of the offending. This was committed while you were on bail, albeit for unrelated charges;
(c) the attack was a serious and bad attack. It was a sustained attack to
Mr Linder’s head. You used your feet against his head; (d) you left him without help, to die.
[23] Those factors are all relevant to fixing the minimum term of imprisonment for the murder. It must be an appropriate term to satisfy the purposes I referred to.
[24] Having regard to those purposes and the considerations I am required to take into account, the factors I have identified previously, and the cases of R v Houma,
R v Rangiwhaiao and R v Sullivan, Kupa-Caudwell and Walker in particular,2 I take a minimum non-parole period of 12 years as appropriate for the murder before taking into account your other offending and your personal mitigating circumstances.
[25] In sentencing you I am not only sentencing you on the charge of murder. I am also sentencing you on the charge of wounding Mr Walker with intent to injure. Having regard to the Court of Appeal decision in Nuku v R3 in the circumstances of this case there are at least two aggravating features to that assault. I take a two year, nine month starting point for that offending. Allowing a discount for your youth, expressed remorse and late guilty plea, the sentence will be reduced to two years,
three months.
[26] The Court cannot obviously make that sentence cumulative on the sentence of life imprisonment.4 The issue is whether a further non-parole term is required for that offending.
[27] Counsel for the Crown has suggested that having regard to the case of R v Hoko, the Court could impose an uplifted minimum non-parole period on the charge of murder to reflect that other offending.5 In Hoko the Court had no difficulty with associated offending being taken into account. In that case the associated offending was directly related to and arose out of the same incident. The two incidents in this case, although one occurred earlier in the evening, were otherwise
unrelated.
[28] However, I am satisfied that justice requires the minimum term to be adjusted given the separate offending involving your earlier attack on Mr Walker. Mr Winter submitted that the earlier offending could simply be dealt with by a concurrent sentence with no addition to the minimum non-parole period. But I consider that would be wrong in principle as there would be no effective sanction or penalty for that separate offending, which was serious in itself. In the words of the Act, such an
outcome would fail to hold you accountable for that offending. It would also fail to
2 R v Houma [2008] NZCA 512; R v Rangiwhaiao [2012] NZHC 1751; and R v Sullivan, Kupa- Caudwell and Walker HC Wellington CRI-2009-485-000086, 10 February 2010.
3 Nuku v R [2012] NZCA 584; [2013] 2 NZLR 39.
4 Sentencing Act 2002, s 83(4).
5 R v Hoko (2003) 20 CNRZ 464 (CA).
act as a deterrent to others and, importantly, given the issues you have involving violence it would not address the proper consideration of the ongoing protection of the community.
[29] For those reasons I consider an additional minimum non-parole period of one year should apply to reflect that earlier offending. That leads to a minimum non- parole period, before taking account of your personal mitigating factors, of 13 years.
[30] It was apparent during the course of your interview with Detective Ekins that you became upset and expressed your remorse for your actions. You are entitled to a reduction for your remorse which I accept is genuine. You have repeated it to the probation officer and it is expressed in your letter which as I have said shows some insight. However, I repeat that the concern to this Court is the escalation of your violence and resort to violence in any situation of confrontation. While your remorse perhaps shows you regret your actions afterwards, for you to change and not to repeat such violence in the future, you will need counselling so that you gain a full understanding of the reasons why you acted in the way you have and act to address those issues. That will not be straightforward. Unless and until you do so you will remain a risk to the community.
[31] I also take into account in your favour your youth and to a degree your background as much as I can. The Court of Appeal in Churchward confirmed that youth has been held to be relevant to sentencing in the following ways:6
(a) there are age related neurological differences between young people and adults. A 17 year old is not as mature and does not respond in the same way that a more mature adult will;
(b)the effect of imprisonment on young people, including the fact that long sentences can be crushing; and
(c) young people have the potential and greater capacity for rehabilitation with appropriate direction.
6 Churchward v R [2011] NZCA 531 at [77].
[32] Having regard to those mitigating factors I accept that a reduction of one and a half years in the minimum non-parole period is required. I propose to impose the minimum non-parole period on the sentence of murder consistent with the Court of Appeal’s decision in Hoko.
[33] Mr Churchis please stand. On the charge of the murder of Edwin Linder you are sentenced to life imprisonment. You are to serve a minimum non-parole period of 11½ years. On the charge of wounding with intent to injure you are sentenced to imprisonment for two years, three months. That is concurrent on the sentence of life
imprisonment. Stand down.
Venning J
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