R v Collins

[2021] NZHC 1029

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2019-063-000629

[2021] NZHC 1029

THE QUEEN

v

JOHN KENNETH COLLINS

Hearing:

22 to 27 February 2021

1 to 2 March 2021

Appearances:

R D Smith and P A Norman for Crown

L A Andersen QC and J A Westgate for Mr Collins

Judgment:

7 May 2021

SENTENCING NOTES OF DOOGUE J

Introduction

[1]    John Kenneth Collins, you appear for sentence for the murder of Brent Bacon following the verdict of the jury on 2 March, earlier this year.1 You also appear for sentence on one charge of interfering with human remains and one charge of unlawfully taking a motor vehicle, offences that you had earlier pleaded guilty to.2

[2]    I begin by saying that I will be imposing a sentence of life imprisonment today. That means you will remain in prison for the rest of your life unless you can satisfy

1      Crimes Act 1961, s 172; maximum penalty life imprisonment.

2      Crimes Act, s 150; maximum penalty two years’ imprisonment; and Crimes Act s 226; maximum penalty seven years imprisonment.

R v COLLINS [2021] NZHC 1029 [7 May 2021]

the Parole Board you are no longer a risk to others. No one suggests that life imprisonment in this case would be unjust. The question I must turn my mind to is the minimum period of imprisonment (MPI) that will accompany that life sentence, that is the time you must spend in prison before the Parole Board can consider your release.

[3]    I will first set out the circumstances of the murder, then I will discuss the impact of the murder on the lives of others. I will discuss the pre-sentence report and I will traverse relevant previous sentences. Finally, having regard to all those matters, I will settle the minimum period of imprisonment for you.

Background

[4]    At about 11 pm on Monday, 4 February 2019 you murdered Brent Bacon by hitting him on or around the head multiple times with a cricket bat at your wife’s,  Ms Dawson, address at 47 Lock Street, Dunedin. You kept hitting Mr Bacon until the cricket bat broke.

[5]    After killing him you made a futile attempt to clean his blood from the scene. You also placed the cricket bat into a bag, a rubbish bag.

[6]    You covered Mr Bacon’s body with a sleeping bag and put him in his own car. You forgot to bring the rubbish bag containing the cricket bat. You took his car and drove 30 kilometres north of Dunedin. Ms Dawson accompanied you. Together, in a secluded area at Steep Hill Road, you disposed of his body at the roadside. You attempted to conceal it under a large tree and ground vegetation.

[7]    After disposing of Mr Bacon’s body, you drove north where you attempted to use Mr Bacon’s EFTPOS card at an ATM in Ashburton. That was at about 4.56 am on 5 February 2019. You kept driving north until you reached Picton. Again you attempted to use Mr Bacon’s EFTPOS card at an ATM.

[8]    On 6 February 2019 you spoke to a staff member at Atlantis Backpackers in Picton. You impersonated Mr Bacon, using his temporary licence, and sold his vehicle

for $250. You and Ms Dawson then took the ferry to Wellington. After arriving in Wellington, you then travelled north to Rotorua.

[9]    On 17 February 2019 a significant amount of blood was found at the Lock Street address. Police conducted a forensic examination assisted by ESR staff. Blood, scalp flesh and skull fragments were found at the scene.   On 18 February 2019     Mr Bacon’s body was found at Steep Hill Road by a member of the public. It was in an advanced state of decomposition and only identifiable by forensic testing.

[10]   The post-mortem examination revealed Mr Bacon had died from blunt force injuries to the head. A large part of his skull was dislodged and fractured. Fingers on both his hands were also fractured.

Disputed facts

[11]I now turn to the disputed facts.

[12]   I may rely on any fact that was disclosed by evidence at trial and is consistent with the jury’s verdict. However, I must be satisfied that any disputed aggravating fact was necessary to the jury’s verdict or proved beyond reasonable doubt by the evidence adduced at trial.3 I will now rule on the disputed facts and I keep the onus firmly in mind.

[13]   You gave three separate accounts of what happened at Lock Street. First, you told the Detective who interviewed you that Mr Bacon came at you with clenched fists and you feared for your life. Secondly, at trial and for the very first time, you said  Mr Bacon had scissors in his hand, his right hand, and you thought he was going to stab you. Also, for the very first time you said he made an express threat to kill you. Third, under cross-examination by Mr Smith, you admitted you “lost the plot”.

[14]   Mr Andersen QC has said that these inconsistencies do not necessarily make your account untrue, he says the effect of memory can explain all this. I did not have the benefit of any expert evidence on that. What I can rely on is that your account has

3      Sentencing Act 2002, s 24; and Robertson v R [2016] NZCA 99 at [75].

changed over time and that means you have not given a consistent account of the very core elements of your narration of the events.

[15]   Sadly today, through your counsel, you say that you now have no explanation for what happened. In light of the evidence, that speaks volumes about this tragedy, volumes about you and volumes about the extent of the rehabilitation that you will have to undergo in order to gain the insight to understand an explanation for what happened. I digress and I will deal with that matter later in my sentencing.

[16]   The Crown invite me to sentence you on the basis that the jury rejected your evidence on the material aspects and found you were not defending yourself at all when you killed Mr Bacon. They say you were the aggressor throughout. Their case was that you attacked Mr Bacon while he sat on a two-seater couch and then continued to attack him as he fell to the floor and raised his hands to defend himself. In advancing that theory, the Crown rely heavily on the expert evidence of Dr Glenn, the pathologist; Dr Gilkinson, the radiologist; and Ms Rough, the ESR scientist.

Mr Bacon’s location

[17]I will deal first with Mr Bacon’s location.

[18]   The Crown submits the evidence proved beyond reasonable doubt that the first strike to Mr Bacon with the cricket bat was while he was sitting on that couch.

[19]   Ms Rough gave evidence that Mr Bacon was first hit when he was on or near the couch. She noted there was an absence of blood on the couch seat cushions. She also referred to the blood droplets on the table next to the couch around the head area of the couch, and then the spray of droplets above the couch on the wall. She said that would be consistent with someone sitting on the couch at the time of the first impact.

[20]   Mr Andersen, in cross-examination, put it to her that your wife had been sitting on the couch at the time of the first impact, and that explained the absence of blood on the cushions. Ms Rough reasserted her evidence that Mr Bacon had been sitting on the couch. But then, in answer to Smith’s re-examination, she said:

I’m not sure if its someone sitting on the couch or someone near the couch, there’s some uncertainty here anyway.

[21]   There is support for the Crown’s theory in Dr Glenn’s  evidence.  He said   Mr Bacon’s head would have been tilted back when you first hit it to create the laceration on his forehead. That would be entirely consistent with Mr Bacon sitting on the couch when he was first struck and not moving towards you as you claimed. You also acknowledged Mr Bacon had been seated on the couch for much of the evening.

[22]   However, while the Crown’s theory as to location is evidently more likely,  Mr Andersen’s theory remains possible and it raises a doubt. Specifically, Ms Rough was not willing to give evidence that the first impact occurred on the couch. She restrained her evidence to “on or near”. Therefore, the evidence does not prove beyond reasonable doubt he was sitting on the couch when the assault began. It does, however, prove beyond reasonable doubt that he was in the vicinity of the couch.

The level of force used

[23]I turn now to the level of force used.

[24]   The Crown submits that the evidence establishes an ongoing assault involving many blows and extreme force targeting Mr Bacon’s head.

[25]   Ms Rough’s evidence indicates three specific impact sites within the scene, indicating you moved around the room as you delivered blows with the bat. She said the cast-off bloodstains indicate you hit Mr Bacon multiple times after the bat was already covered in blood. I also note that the force used was enough to cause bloodstains on the ceiling of the flat.

[26]   There was also extreme blood saturation of the couch and carpet at the scene and, as I have said, fragments of scalp, hair and bone found in the lounge that indicate the level of force involved.

[27]   Dr Glenn opined that the damage to Mr Bacon’s skull was like that he had seen in cases of plane crashes, railroad accidents, high-powered gunshot wounds or many

forceful blows from a baseball bat or a hammer. He said that whilst it was “possible” that the victim’s injuries were the result of three blows, it was much more likely they were the result of many blows, dozens of blows in fact. I note that a large reason why Dr Glenn was unable to precisely assess the number of blows was that you had delayed the autopsy by moving and dumping Mr Bacon’s body.

[28]   Dr Gilkinson agreed with Dr Glenn that the force used to inflict Mr Bacon’s injuries must have been “extreme”. Even you admitted that you had hit Mr Bacon “as hard as you could”.

[29]   There is, therefore, overwhelming evidence that you killed Mr Bacon with at least three extremely forceful blows to the head.

Excessive self-defence

[30]I talk now about excessive self-defence.

[31]   The jury necessarily rejected self-defence involving reasonable force in reaching their guilty verdict. However, they did not necessarily reject excessive self-defence. Your counsel would have me sentence you on the basis that Mr Bacon was initially the aggressor, or at least threatened you, and then you reacted with aggressive force. The Crown would have me sentence you on the basis that you were the aggressor throughout. They submit the evidence demonstrates an ongoing assault that Mr Bacon unsuccessfully endeavoured to evade and protect himself from.

[32]   Mr Bacon sustained injuries to the back of his head and thyroid bone. On your account these injuries must have occurred while he was stumbling to get up from his hands and knees. That is wholly implausible, and, in any event, these injuries are not consistent with self-defence. Dr Glenn opined that the neck is particularly hard to damage as it is protected by the jawbone.

[33]   There are also the defensive injuries. Mr Bacon suffered fractures to the metacarpal bones in both hands and a dislocated thumb. Dr Glenn and Dr Gilkinson agreed that the fractures were consistent with Mr Bacon having raised his hands to

protect his head as you attacked him. Both acknowledged, however, that the dislocated thumb could have been caused by his body decomposing.

[34]   You gave evidence that the fractures to his hands may have been caused by you standing on his hands as you moved Mr Bacon’s body. This was not put to the experts and I reject it as implausible. It does not raise a reasonable doubt. I find that at a point Mr Bacon had his hands raised, attempting to block the blows you were meting out to him.

[35]   At various times you admitted you “flipped out”, “lost the plot” or “followed through” after the first swing of the cricket bat. I find the evidence establishes beyond reasonable doubt that after the first blow, or at any point when Mr Bacon was on the ground, on his hands and knees, or raising his arms to defend himself, you were very clearly not acting in self-defence, excessive or otherwise.

[36]   Having settled those matters, I turn now to the impact on the victims and the pre-sentence report.

Impact on victims

[37]   The primary victim here is Brent Bacon. You stole the rest of his life from him. He had much still to share with his family and his children. He had much to offer fellow drug addicts with his compassion and practical assistance. Although he is gone, he is not ever going to be forgotten by his strong and loving family. They love him and they will miss him forever.

[38]   All the evidence suggests that Brent and his family truly saw the best in you, looked out for you in your time of need and endeavoured to help you. You betrayed them in the worst possible way.

[39]   We have heard from Ms Bezett, Brent’s sister today. Her statement was lucid and compelling. I cannot state the harm caused to her and her family any better than she did. However, I do want to re-emphasise several particularly poignant parts of what she shared with the Court.

[40]   First, the words she used to describe her life now; torment, sleepless, fearful. The torment that her husband endures with the flashbacks of what he saw that night at Ms Dawson’s house. Finally, and possibly the most moving of all, the torment of never being able to say goodbye to her brother.

[41]   She wants you to remember the next time that you are lucky enough to hold your children that you took that from Brent and his children. She wants you to remember that you have destroyed his children’s innocent perspective of the world. They have learnt about murder, betrayal and the loss of an uncle at a very early age.

[42]   Most importantly, she wants you to remember that Brent gave you his trust, and you took it and you left his bludgeoned body under a tree on the side of the road.

[43]   You should reflect on the observations and experiences Ms Bezett made for the rest of your life, Mr Collins. You killed your friend, a man who was good to you. You irrevocably damaged a family that gave you work and compassionately tried to restore your capacity to contribute to society.

[44]   In summary, the harm you have caused Mr Bacon and his family is irreparable. They all have holes in their heart that will never be mended.

[45]   Your counsel has said that having read Ms Bezett’s statement, and no doubt having heard her deliver it today, you are starting to gain some insight into the consequences of this tragedy.

Approach to sentencing

[46]   Having dealt with those matters, I now must deal with the approach that I will bring to quantifying your sentence.

[47]   Your situation is complicated by the fact that this is your second strike. In 2016, when you were convicted of indecent assault, you were warned that if you committed murder the Judge would be obliged to sentence you to life imprisonment

without the prospect of parole unless that would be manifestly unjust in the circumstances.4

[48]I follow the approach set out by the Court of Appeal in Davis v R.5

[49]   I will determine a notional MPI using ss 102 to 104 of the Sentencing Act 2002. I will then use that MPI to gauge whether life imprisonment without parole, a whole-of-life sentence, would be grossly disproportionate and therefore manifestly unjust. The other offences you have pleaded guilty to will be subsumed by this notional MPI as all the offending relates to the murder.

Notional MPI

[50]   Section 104(1)(e) of the Sentencing Act 2002 provides I must sentence you to life imprisonment with an MPI of at least 17 years if, among other things, I find “the murder was committed with a high level of brutality, cruelty, depravity or callousness”, unless that would be manifestly unjust. If I find it would be manifestly unjust, I must sentence you to life imprisonment with an MPI of at least 10 years.6

[51]   The point of contention at this stage is whether your murder of Mr Bacon involved a high level of “brutality, cruelty, depravity or callousness”.

Crown submissions

[52]   The Crown submit you did murder Mr Bacon with all those features. They point to the fact that you attacked Mr Bacon’s head with multiple, extremely forceful and brutal blows and took callous steps to conceal the murder and destroy evidence of it.

[53]The Crown submit the following aggravating factors are present:

(a)the breach of trust, not only because Mr Bacon trusted you but because the Bezett family trusted you;

4      Sentencing Act 2002, s 86E(2).

5      Davis v R [2019] NZCA 40, [2019] 3 NZLR 43 at [21]-[36].

6      Sentencing Act, s 103.

(b)the use of a weapon, the cricket bat;

(c)the extreme violence having regard to the medical evidence, which went beyond incapacitation and resulted in a significant  wedge  of  Mr Bacon’s skull being dislodged;

(d)attempts to avoid detection, the most callous of which was dumping the body with the effect that the family could not even have a funeral; and

(e)the theft of Mr Bacon’s vehicle and EFTPOS card.

[54]   The Crown also pointed to the unemotional detached demeanour in your video statement. Mr Andersen is right, in my view, to submit that there is so much science around a lack of affect that I do not rely on that aspect of the Crown’s submissions.

[55]   The Crown rightly submit that the law allows me to consider your conduct after the killing when determining callousness.7 They very helpfully provided case authorities which I refer to in my analysis.

[56]   The Crown submit there are no mitigating factors of the offending or personal to you. They submit your methamphetamine use did not impair your ability to think and act rationally when you killed Mr Bacon. They say your conduct after the murder

- attempting to clean the blood at the scene, dumping Mr Bacon’s body, buying a new SIM card for your phone and selling Mr Bacon’s car - is evidence of your ability to make rational, conscious and callous decisions.

[57]   The Crown, therefore, submit you should be sentenced to life imprisonment with an MPI of at least 17 years.

Defence submissions

[58]   Your counsel, Mr Andersen QC, submits your conduct was not sufficiently brutal, cruel, depraved or callous to meet the threshold.

7      Marong v R [2020] NZCA 179 at [33].

[59]   He distinguished other cases involving post-mortem actions because he says they involved a continuing pattern of callous conduct.

[60]   He submits the killing was not premeditated; that you have faced difficulties with alcohol and drug addiction; that you have acknowledged, as indeed I believe you have, the need to address these problems; and that you have a positive pre-sentence report. Mr Andersen also draws my attention to the fact you have completed a Positive Lifestyle Programme run by the Salvation Army.

[61]   In consideration of these factors, Mr Andersen submits an MPI of 12 years’ imprisonment is appropriate.

Analysis

[62]I turn now to my analysis of the cases.

[63]   It is important to recognise that there is no such thing as a murder that “is not, in some sense, brutal, cruel, depraved or callous”.8 I must therefore be satisfied that your murder of Mr Bacon contained a high level of these features.

[64]I consider the following cases are relevant:

[65]   Carroll v R:9 Mr Carroll armed himself with a steering wheel lock and undertook to confront and assault a person. However, the victim was mistakenly identified and attacked. Mr Carroll struck them on the face and back of the head with the wheel lock up to six times. He then wrapped the body and transported it in the boot of his vehicle. He later attempted to burn the body but eventually left it on the side of the road. The Court of Appeal found Mr Carroll’s actions were “calculated, cool and devoid of feeling” and justified an MPI of 17 years.

[66]   R v Frost:10 Mr Frost came up behind his female friend while she was cooking and slit her throat with a hunting knife. He then stabbed her through the back. She

8      R v Slade [2005] 2 NZLR 526 at [40].

9      Carroll v R [2018] NZCA 320.

10     R v Frost [2008] NZCA 406.

was found a few days later lying in a pool of blood on the kitchen floor. Mr Frost took food from her fridge and drove off in her car. He boasted about having killed the victim and how much he enjoyed it. The Court of Appeal found that while the murder was not a prolonged and cruel assault, it was nevertheless highly callous. They upheld an MPI of 17 years’ imprisonment.

[67]   R v Smith:11 Mr Smith went to the victim’s home and hit him in the head with a hammer. When the victim tried to get up Mr Smith rained blows down on the victim’s face, head and body. The pathologist recorded 24 blows. Brewer J found the offending involved a high level of brutality and met the threshold for an MPI of     17 years’ imprisonment. However, he found that the MPI was manifestly unjust considering Mr Smith’s personal circumstances.

[68]   R v Korewha:12 Mr Korewha beat his partner to death in a paddock, causing a basal skull fracture. The pathologist said this sort of fracture is often seen in high-speed motor-vehicle collisions or falls from great heights. Mr Korewha concealed her body in a bush and told a false story to explain her disappearance for the next 17 days. Brown J found these circumstances took the callousness “well beyond the threshold” and he imposed an MPI of 17 years’ imprisonment.

[69]   R v Ngatai:13 In this case there was no use of a weapon or trying to hide the body. It can be distinguished on that basis. It was also, as Mr Andersen submitted, a far longer and more prolonged attack. Grice J nonetheless imposed a minimum period of imprisonment of 16 years.

[70]   I pause now to consider your offending, in light of the assistance I have gained from the cases I have just listed.

[71]   I note Mr Andersen’s submission that there is no evidence of premeditation. However, I agree with the Crown about the aggravating factors. This murder involved a breach of trust, as Mr Bacon was a friend to you and was regularly invited into your

11     Wyjuana Smith v R

12     R v Korewha [2015] NZHC 308.

13     R v Ngatai [2020] NZHC 2016.

home where he was ultimately killed. I consider that breach of trust adds to the callousness of the killing.

[72]   You used a weapon to mount an attack focused on Mr Bacon’s head. You went beyond simply causing death, Mr Collins. You attacked his head until nearly a third of his skull had collapsed and your weapon was broken. Such was the force of your blows that Mr Bacon’s blood hit the ceiling. You struck at least one blow while he had his hands raised, attempting to protect his head or parry blows. He was on the ground then and posed no threat to you at that time.

[73]   Whether it took three extremely forceful blows or dozens, it was a brutal murder. I assess it as more brutal than Frost, and at least as brutal as Korewha and Carroll. It was, however, less brutal than Smith.

[74]   It is your subsequent conduct that causes this murder to reach the threshold of highly brutal, cruel, callous or depraved. Your immediate reaction was not to render assistance to Mr Bacon or even to contact the authorities, it was to clean up the scene of the crime. You hid the murder weapon and left the house locked with curtains drawn to prevent anyone entering or viewing the bloody scene inside the property. You placed Mr Bacon’s body into a sleeping bag, you stole his car, you stole his wallet and you left him lying beside the road on a remote stretch in a rural area. You spent his money on drugs. You repeatedly tried to use his EFTPOS card, until it was locked due to incorrect pin entry. You even impersonated the man you had killed, to sell his car that you had stolen.

[75]   I reject Mr Andersen’s submission that this was anything other than a continuing course of callous conduct, centred around covering up the fact you had murdered Mr Bacon.

[76]   The level of callousness here is like that in Carroll and Korewha, and far greater than that in Smith.

[77]   This murder is therefore appropriately categorised as involving a high level of brutality and callousness. Section 104(1)(e) is engaged and the appropriate MPI is at least 17 years’ imprisonment.

[78]   There are no mitigating factors that would make this manifestly unjust. While you were addicted to methamphetamine and you consumed it two nights before the murder, that does not reduce your culpability enough to make 17 years manifestly unjust. As the Crown submitted, you took conscious and rational, if unsophisticated, actions to conceal the fact that you had murdered Mr Bacon.

[79]   The pre-sentence report writer notes your versatile conviction history and assessed you as at high risk of harm to others. Considering your addiction to methamphetamine, you were also assessed as being at a high risk of reoffending. The report says you demonstrate a clear propensity for violence. In fairness to you, you do seem to have come to terms with what you have done and that you must serve a lengthy term of imprisonment to repay your debt.

[80]   Your counsel raised the fact that you have completed the Positive Lifestyle Programme run by the Salvation Army. The programme was for a total of six hours across six days. They did say that they are not sure whether you gained any benefit from participation in the programme, so you have a long road to hoe, Mr Collins, towards your rehabilitation.

A whole-of-life sentence?

[81]   I turn, as I must, to determine whether I should impose a whole-of-life sentence.

[82]   Under the Davis approach, I must now compare the MPI with a whole-of-life sentence to determine whether a whole-of-life sentence would be grossly disproportionate and, therefore, manifestly unjust.14

14     Davis v R, above n 5.

[83]   You are 39 years old. The current life expectancy for a New Zealand male is 81 years. That means if I imposed a whole of life sentence you may serve 42 years in prison without the prospect of parole.

[84]   Your counsel has persuasively submitted that would be grossly disproportionate and, on this, the Crown conceded that point. To this date, the only person ever to have been sentenced without parole was the Christchurch mosque terrorist.15 Your offending, while grave, is nowhere near that category. Your counsel’s submissions for a finding of manifest injustice is clear and convincing.16

[85]   I find that a sentence of life imprisonment without the prospect of parole would be manifestly unjust and will instead sentence you to the notional MPI I reached earlier.

Conclusion

[86]I come to the final part of the sentence, Mr Collins.

[87]   For the murder of Brent Bacon, you are sentenced to life imprisonment with a minimum period of imprisonment of 17 years.

[88]Please stand down.

Doogue J

Solicitors:

RPB Law, Dunedin CC:

L Andersen, Dunedin

15     R v Tarrant [2020] NZHC 2192.

16     R v Harrison; R v Turner [2016] NZCA 381 at [108].