R v Duff

[2025] NZHC 1657

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-092-011184

[2025] NZHC 1657

THE KING

v

DONOVAN MICHAEL DUFF

Hearing:

18 June 2025

Appearances:

C P Howard for the Crown

S Tait, J Hudson, and D A Bousfield for the Defendant

Judgment:

18 June 2025

SENTENCING NOTES OF POWELL J

R v DONOVAN MICHAEL DUFF [2025] NZHC 1657 [18 June 2025]

[1]    Donovan Duff, you appear for sentence today having pleaded guilty to the murder of Brian George at Kohuora Auckland South Corrections Facility in Wiri on 21 December 2023.1 You have also pleaded guilty to wounding with intent to cause grievous bodily harm to Po-Chen Chien in the same incident.2

The offending

[2]    I begin your sentencing by summarising the offending that has brought you before the Court today. I rely on the version of events recorded in the summary of facts, which you agreed with at the time you pleaded guilty.3

[3]    At the time of the offending you were working in the facility’s kitchen as a vegetarian cook. Mr Chien and Mr George worked as storemen.

[4]    Midmorning, on 21 December, you signed a large cook’s knife out of its secure storage cabinet. It had a blade of approximately 20cm.

[5]    At that time Mr Chien and Mr George were working in the loading bay, which is not visible from the kitchen. They were waiting for a door to be unlocked so they could move food to the external fridges. Mr Chien was standing up and leaning against a metal pole, while Mr George was sitting on a milk crate surrounded by other crates.

[6]    You made an initial approach into the loading bay area before walking back towards the kitchen.

[7]    About a minute later, you returned to the loading bay. This time you carried the knife in your right hand. You walked directly up to Mr Chien and stabbed him once in the abdomen. Mr Chien did not initially realise how serious the wound was and remained standing beside the pole he had been leaning on. You remained standing in front of Mr Chien, holding the knife, until Mr Chien first leaned against a wall for support before sliding down into a sitting position. Mr Chien could see his bowel

1      Crimes Act 1961, ss 167(a), (b) and 172. Maximum penalty: life imprisonment.

2      Crimes Act 1961, s 188(1). Maximum penalty: 14 years’ imprisonment.

3      Minute no 4 of Downs J.

spilling out from the wound in his abdomen. He was terrified and thought he may not survive.

[8]    You started to walk out of the loading bay, however you did not leave. Instead, you turned and walked up to Mr George, who was still sitting down, whereupon you stabbed him six times in his chest and abdomen.

[9]    The first stab wound was to his lower left abdomen. He put his arm around his stomach and attempted to move backwards to get away from you. Because of the stacks of crates behind him, he was not able to get away. You were blocking his only exit.

[10]   You then stabbed him again in the abdomen. He tried to block you by curling inwards and protecting his torso. Using your left hand, you pushed Mr George’s head back, and stabbed him a further four times, including in the chest, as he attempted to block your attack using his hands. One stab punctured his heart and the tip of his left lung causing a fatal wound.

[11]You then left the loading bay and walked back into the kitchen.

[12]   Mr George and Mr Chien sought assistance. Despite prompt attention from staff and nurses they were unable to save Mr George, and he passed away at the scene.

[13]   Mr Chien suffered life-threatening injuries, including the injuries to his bowel, a collapsed lung and internal bleeding.

[14]   You declined to speak to Police about what you did, however the following day you called your partner and told her you “lost it” and “snapped”. You said that no one gets to call you a “kid killer” and get away with it. You said you had heard people calling you this, but you couldn’t “pinpoint” who was saying it, however when you believed it was coming from Mr George or Mr Chien, you had “just [seen] red”.

Victim impact

[15]   The impact of your actions on that day cannot be understated. I acknowledge Mr George’s mother, Mrs Syddalls, who prepared the victim impact statement read by Ms Presnel this morning. I also acknowledge the other members of Mr George’s family and friends, and in particular his father Ken, and sister in court this morning. There is no doubt Mr George was a loved son, sibling, partner, and friend who was due to be released within three weeks had he not been murdered. Likewise, I acknowledge Mr Chien and note that while he survived the attack it can only have taken a heavy toll, both mentally and physically. I acknowledge both Mr George and Mr Chien were serving prisoners at the time that they were attacked. That does not, in any way, reduce the seriousness of what occurred, prisoners are still very much part of our wider community, and it is important for our community and its own wellbeing that all of our prisoners are able to serve their sentences safely.

Approach to sentencing

[16]   I now turn to the approach I must take in sentencing you today. The Sentencing Act 2002 sets out the purposes and principles of sentencing. The primary purposes of sentencing in this case are to:

(a)hold you accountable for the harm you have done to each of the victims, particularly Mr George and Mr Chien, and to all of their families and friends;4

(b)to promote in you a sense of responsibility, and an acknowledgement of the harm you have caused;5

(c)to protect the community from you, including those in the prison community;6

(d)to denounce your conduct;7 and

4      Sentencing Act 2002, ss 4 (definition of victim) and 7(1)(a).

5      Section 7(1)(b).

6      Section 7(1)(g).

7      Section 7(1)(e).

(e)to deter you and others from committing the same type of offences.8

[17]The relevant principles of sentencing in this case are:

(a)the seriousness of your offending and your responsibility for it;9

(b)the need for consistency with other similar sentences;10

(c)the need to take into account the information provided to the Court concerning the effect of the offending on Mr Chien and Mr George’s family and friends;11 and

(d)the need to impose the least restrictive sentence appropriate in the circumstances.12

Sentencing for murder

Life imprisonment

[18]   As you have been convicted of murder, s 102(1) of the Sentencing Act requires me to impose a sentence of life imprisonment unless that would be manifestly unjust. In this case, there has been no circumstances advanced on your behalf that would suggest that life imprisonment for the murder of Mr George is, in any way, unjust, let alone manifestly unjust, and I can see no basis on which it could be on the information that I have been given. I am, therefore, satisfied that imprisonment for life is appropriate.

[19]   Given that decision, the main issue in sentencing you today is to decide what minimum period of imprisonment should be imposed as part of your sentence. A minimum period of imprisonment, or MPI as I shall refer to it, is the shortest amount of time you will be imprisoned for before you can apply for parole.

8      Section 7(1)(f).

9      Section 8(a).

10     Section 8(e).

11     Section 8(f).

12     Section 8(g).

Calculation of MPI

[20]   As to what the appropriate MPI is in this case, there is no dispute that because this is your second conviction for murder, s 104 of the Sentencing Act is engaged as it was at your first sentencing for murder in 2018. 13 As Justice Downs’ noted at that time, when s 104 is engaged, it makes it an “especially bad murder”.14 The effect of  s 104 is that I must impose an MPI of at least 17 years, unless I determine that to do so would be manifestly unjust.

[21]   In this case there is no suggestion that a 17-year MPI would be manifestly unjust, and counsel have indeed submitted that it would not be in the circumstances of this case.

[22]   As you have heard, both counsel in their submissions have provided an analysis with reference to case law as to what an appropriate MPI would have been had s 104 not been engaged. Mr Howard submitted that the aggravating features of the murder justified an initial MPI of 14 years, uplifted by two years for the wounding of Mr Chien and two years to account for your previous criminal record, less a 10 per cent discount for your guilty plea, a total of some 16 years, two months. Mr Tait, on your behalf, did not accept all of the aggravating features advanced by the Crown but accepted that a 12-year starting point for the MPI was appropriate, again uplifted by two years for both the wounding and your criminal history,15 less an allowance for your guilty plea of 15 per cent, a total of 13 years, seven months.

[23]   Notwithstanding the difference in their calculations both counsel submitted that the imposition of a 17 year MPI would not be manifestly unjust in the circumstances.

[24]   As Mr Howard submitted, this is the second time you have murdered another person, and that sentences for double murderers often lead to an MPI in the range of 18 to 25 years’ imprisonment.16 In his submission, unless there are exceptional

13     Section 104(h).

14     R v Duff [2018] NZHC 2690 at [14].

15     This refers to two discrete uplifts, each of two years.

16     See Frost v R [2023] NZCA 294 at [64].

circumstances not present in this case, there is no basis to reduce the  MPI below    17 years.17 The Crown does, however, take the position that 17 years is sufficient, such that in the event that I was to fix the MPI at 17 years, no uplift is sought for the wounding of Mr Chien.

[25]   Likewise, Mr Tait accepted a 17-year MPI would not be unjust in the circumstances of your case and notes that no discount for a guilty plea is sought on the basis that there is no uplift above 17 years for the wounding of Mr Chien.

Discussion — MPI

[26]   I accept the overall analysis of both counsel. I agree with Mr Howard that the aggravating features of your offending contained:

(a)elements of premeditation given that after your initial entry into the loading bay you left, and then armed yourself with a knife before returning and attacking Mr George;

(b)the fact that you used a weapon in the attack, being the large kitchen knife that you used;

(c)that the attack featured elements of extreme violence evidenced by the number and severity of the blows; and

(d)there is certainly elements of victim vulnerability, in part because    Mr George was a serving prisoner, and partly because of the sudden and unprovoked nature of the attack.

[27]   I likewise consider that a number of the cases relied on by Mr Tait are not particularly comparable to the nature of your offending, being the cases which involved the killing of friends.18 I therefore conclude that had s 104 not applied, an MPI in the vicinity of 15 years would have been appropriate.

17     R v Lisiate Auckland HC CRI-2009-044-2878, 16 December 2011 at [123].

18     R v Heenan [2014] NZHC 553; and R v Ballantyne [2019] NZCA 596.

[28]   I likewise note it is clear from the PAC report that you have no remorse, and do not seek any allowance for such, nor is there anything else of an even remotely mitigating nature, apart from your guilty plea. Instead, the PAC report makes it clear that you are at a high risk of causing harm and a high risk of reoffending and at best are only at a “pre-contemplative stage in terms of changing your behaviour”, notwithstanding the large proportion of your life you have already spent in prison in the course of your lifetime as has been detailed by Mr Tait this morning. I am obliged to Mr Tait giving some details of your personal background to me, but as Mr Tait acknowledged, none of those matters can affect the sentence I am required to impose on you today.

[29]   Instead, in the circumstances I conclude that not only is a 17-year MPI not manifestly unjust in the circumstances of this case, it is both entirely appropriate and necessary to fulfil the relevant purposes and principles of sentencing I referred to earlier.19 I reach this conclusion, notwithstanding that as counsel noted in their written submissions, the imposition of a 17-year MPI means that you will have served a total of some 23 years, 8 months in prison before you are eligible for parole as a result of offending while serving an MPI for your first murder.20 Effectively, the result of the present offending is your MPI has reset back to 17 years, which means you will now not be able to seek parole until you are 65. Given this position, I do not, however, consider an MPI of above 17 years is required and instead I accept counsels’ submission that as you do not seek an allowance for your guilty plea it is not necessary to uplift the MPI for the wounding of Mr Chien.

[30]   Overall, I am satisfied that a 17-year MPI is appropriate for the murder  of  Mr George.

Wounding with intent to cause grievous bodily harm

[31]    For completeness, and although not impacting on the MPI, I am also required to sentence you for the wounding of Mr Chien. Having considered the submissions of

19 At above [16]–[17].

20     It is not unusual for two murder convictions to attract sentences in excess of 20 years.   In       R v Lisiate, above n 17, the defendant served a total MPI of 22 years and 5 months. The defendant in R v McKenzie [2009] NZCA 169 served a total MPI of 25 years.

counsel, on the charge of wounding with intent to cause grievous bodily harm I adopt a starting point of seven years’ imprisonment. I apply an uplift of two years in recognition of your 166 previous convictions, including the first murder in 2016. I give an allowance of one year for your guilty plea. As with the murder charge, I see no other mitigating factors. This results in an end sentence of eight years’ imprisonment which will be served concurrently with your other sentences.

Sentence

[32]Mr Duff please stand.

[33]   For the murder of Brian George you are sentenced to life imprisonment with a minimum period of imprisonment of 17 years.

[34]   For wounding Po-Chen Chien with intent to cause grievous bodily harm, you are sentenced to 8 years’ imprisonment to be served concurrently with your sentences for murder.

[35]   Finally, I should remind you that in both 2016 and 2018 you were given a first strike warning, for using a firearm against a law enforcement officer and your first murder respectively. Both warnings were reactivated yesterday. They have had no bearing on your sentence today but will almost certainly impact on any future offending you might commit.

[36]Mr Duff, you may stand down.

Powell J