R v Cornelius

[2013] NZHC 3435

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2013-016-002624 [2013] NZHC 3435

THE QUEEN

v

SELWYN DAVID CORNELIUS

Appearances:           S B Manning and K Laurenson for the Crown

A Simperingham for Mr Cornelius

Date:  16 December 2013

SENTENCING REMARKS OF GILBERT J

R v SELWYN DAVID CORNELIUS [2013] NZHC 3435 [16 December 2013]

Introduction

[1]      Mr Cornelius, you appear for sentence having pleaded guilty to the murder of

Mark Anthony Paaka.

[2]      I  am  obliged  to  sentence  you  to  life  imprisonment  unless  it  would  be manifestly unjust to do so.  There is no suggestion that it would be manifestly unjust to sentence you to life imprisonment for what you have done.  So that is the sentence that I will impose on you, life imprisonment.  The issue I need to determine today is what minimum period of imprisonment should be imposed as a condition of that sentence.

Three strikes warning

[3]      There is one preliminary matter that I have to deal with. When you pleaded guilty in the District Court and a conviction was entered against you, the three strikes warning that should have been given was not given so it is necessary for me to give that warning now.  This is a warning of the consequences of another serious violence conviction.  If you are convicted of any serious violence offence other than murder committed after this warning and if a judge imposes a sentence of imprisonment, then  you  will  serve  that  sentence  without  parole  or  early  release.    If  you  are convicted of murder committed after this warning, then you must be sentenced to life imprisonment and that sentence will be served without parole unless it would be manifestly unjust.  In that event, the judge must sentence you to a minimum term of imprisonment.  A written copy of this warning will be given to you to explain these consequences for you under the three strikes law.

The facts

[4]      I will summarise the facts.  I will do this briefly because the summary of facts has been read to the court and extensive submissions have been made in relation to the facts.

[5]      In the week prior to the murder, you had a dispute with Mr Paaka, who was your  neighbour,  over  his  puppy  coming  onto  your  property,  digging  up  your vegetable garden and otherwise creating a nuisance. You threatened Mr Paaka that if he did not do anything about the dog then you would.

[6]      On 30 October 2013, you spoke with Mr Paaka’s partner outside the house. You asked her to tell him that you were going to set traps in your garden so he had better make sure that the dog was tied up.

[7]      The next day, Thursday 31 October 2013, Mr Paaka started working on a kennel to keep the puppy in.  Sometime before lunch, Mr Paaka and his partner were inside their house when they heard the puppy scream out in pain after you had attacked it with a large piece of wood.  When Mr Paaka came out to see what had happened you threatened to kill the dog.  Mr Paaka responded that if you did that, he would kill you.

[8]      Later that morning, you described to your friend what had happened and as you drove off, you said you were “going to take Mark out”.  Later that day, you told the same friend that you were going to “hammer Mark”.

[9]      That evening, at about 8.00 pm, you left home in your car.  A short distance from your house you saw Mr Paaka and Mr Raroa, who was your daughter’s partner, walking along the grass verge on the side of the road.   You aimed your car at Mr Paaka and drove directly at him.   You were heard to yell out “I’m going to fucking kill you” as you accelerated towards him.  Mr Raroa managed to jump clear but you hit Mr Paaka with the front of your car.  He flew up into the air and landed on the bonnet and windscreen.  The windscreen smashed and Mr Paaka fell off the car and landed on the ground, about a metre off the road.

[10]     You turned your car around and accelerated back towards Mr Paaka, who was lying on the ground unable to move.  You drove straight over the top of him before turning your car around to face him again.

[11]     You then drove your car over Mr Paaka for a third time while he was still lying helpless on the ground.

[12]     You  reversed  off him  before  accelerating forward  yet  again.   This  time, Mr Paaka got stuck under the front of your car but you continued driving for a metre or two until you hit a concrete fence in front of one of the houses in the street.  You waited a short time with Mr Paaka trapped underneath your car before backing off him and driving back up the road.

[13]     The incident was witnessed by children who had been playing outside, as well as other residents in the street and, as we have heard, by Mr Raroa.   Mr Paaka sustained multiple horrific injuries including a broken pelvis, a broken right femur and tibia, a broken right arm and left shoulder, multiple rib fractures, a lacerated pulmonary artery as well as lung, liver and heart lacerations.   Had Mr Raroa not managed to get clear, it is likely that you would have killed him as well and be facing two counts of murder, not one.

Victim impact statements

[14]     I acknowledge the presence in Court today of many of Mr Paaka’s family and friends.  Mr Paaka leaves behind six children aged between three and 20 years, and his  partner,  Ellen,  to  whom  he  had  recently  proposed.    His  immediate  family includes his mother and nine brothers and sisters.

[15]     I have read all nine victim impact statements, not just the ones that were read out in Court today.  These victim impact reports are all heart-rending.  The victims speak of their disbelief that Mr Paaka was killed, and the manner in which he was killed, all over a dispute about a puppy.  Mr Raroa accurately states that what you did that night destroyed two families, Mr Paaka’s family and your own family.

Reports

[16]     I have read the pre-sentence report and the psychological report prepared for sentencing.    It  is  clear  from  these that  you  have a low  level  of anger control,

particularly when you feel picked on or threatened. You have a capacity for violence and a strong belief that violence is an acceptable way to solve interpersonal problems and  conflict.    Your  criminal  record  shows  a  history  of  violent  offending  with previous convictions for wounding with intent to injure, common assault, assault with intent to injure and possession of an offensive weapon. You served a significant term of imprisonment for violence in 2005.  Despite complying with 10 months of parole conditions and fully engaging in the counselling you have been unable to manage your anger and this has tragically led to Mr Paaka’s death.

[17]     It  appears  from  these  reports  that  you  accept  that  you  have  difficulty managing  your  anger  and  have  a tendency to  react  violently,  particularly when threatened.   It is clear from these reports however that you have shown genuine remorse.  Immediately after your attack on Mr Paaka you were overcome with panic and despair and attempted suicide.  I accept that you are genuinely remorseful for what you did and for the effect that this has had on Mr Paaka’s family, and indeed on your own family.

Does s 104 of the Sentencing Act 2002 apply?

[18]     Section 104 of the Sentencing Act 2002 requires the Court to impose a term of imprisonment of at least 17 years in any case to which that section applies. The Crown submits that s 104 applies in your case because:

(a)       the murder involved calculated or lengthy planning; and/or

(b)the  murder  was  committed  with  a  high  level  of  brutality  and callousness.

[19]     I am not satisfied that this case involved calculated or lengthy planning on your part.  Although the fatal attack occurred some 10 hours after you first talked about killing Mr Paaka, there does not appear to have been any calculated or lengthy planning.   For example, you talked about “hammering” Mr Paaka and ended up killing him by driving over him.   I regard these statements as angry outbursts on your part rather than being indicative of calculated or lengthy planning.  Although

the killing was clearly premeditated, I do not consider that it involved calculated or lengthy planning.

[20]     However, I accept the Crown’s submission that the murder was committed with  a high  level  of brutality and  callousness.   Your attack  was  deliberate  and sustained.   You  drove  directly  at  Mr  Paaka,  accelerating  as  you  did  so  having declared your intent to kill him.  There is no doubt that this was an intentional, not a reckless, killing.  You hit Mr Paaka with such force that he flew up in the air and smashed the front windscreen of your car.  He was then lying in the foetal position on the ground unable to move and obviously seriously injured.   Despite that, you turned your car around and drove directly over him repeatedly as he lay defenceless on the ground.   You then delayed for a short time before reversing off him and driving away.

Would a minimum period of 17 years’ imprisonment be manifestly unjust?

[21]     Because s 104 of the Act applies, I am required to impose a minimum period of imprisonment of at least 17 years unless it would be manifestly unjust to do so. Having regard to the other authorities to which counsel have referred,1 I consider that a minimum period of imprisonment of 17 years would be appropriate, were it not for your early guilty plea and genuine remorse.  The question is whether those factors would make it manifestly unjust in your case to impose that minimum period of

imprisonment of 17 years.

[22]     In  R v Williams2   the Court  of Appeal  made  it  clear  that  a  guilty plea  is relevant to the fixing of a minimum term under s 104 and might justify a term less than the presumptive 17 year minimum.   The result otherwise could be that two offenders with equal culpability for murder could receive an identical minimum

17 year term despite only one of them having pleaded guilty.  The Court concluded that this would be manifestly unjust and contrary to the public interest.  However, the

Court noted that the discount for a guilty plea is likely to be less than the norm in

1 R v Gardner HC Auckland CRI-2006-092-14165; R v Sila HC Christchurch CRI-2007-009-006120;

R v Worrell HC Auckland CRI-2008-092-009884; R v Shadrock HC Auckland CRI-2009-092-

3881; R v Pukeroa HC Rotorua CRI-2009-063-000697; R v Kinghorn [2013] NZHC 3216.

2 R v Williams [2005] 2 NZLR 506 (CA).

other cases since departures from the 17 year minimum are to be reserved for cases of clear injustice and can only be justified where an effective element of discount cannot be included in a 17 year term.

[23]     The Crown argues that no discount should be given because a conviction in your case was inevitable.  However, the Crown also accepts that by your very early guilty plea you have spared the victims and whanau the significant ordeal of a trial. The Crown accepts that there is a strong public interest in recognising your very early guilty plea.  The Crown also accepts that your remorse is genuine and this is another factor that should reflect in the sentence I impose.

[24]     I consider that it would be manifestly unjust not to recognise your very early guilty plea and your genuine remorse by imposing the same minimum period of imprisonment of 17 years that would have been appropriate without these factors.  In my view, a discount of 18 months should be applied.

Final sentence

[25]     Mr Cornelius, on the count of murder, you are sentenced to imprisonment for life.    You  are  to  serve  a  minimum  period  of  imprisonment  of  15  years  and

six months.

M A Gilbert J