R v Duff HC Wellington CRI 2008-091-98

[2008] NZHC 2608

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2008-091-98

THE QUEEN

v

QUENTIN MAIHI DUFF

Hearing:         3 October 2008

Counsel:         C J Boshier for the Crown

G King for the Accused

Judgment:      3 October 2008

SENTENCING REMARKS OF SIMON FRANCE J

[1]      Mr Duff appears for sentencing on a single charge of murder.  The sole issue to be determined is the length of any minimum non-parole period.  At the start of the proceedings  I explained  to  those  present  the  statutory context  applicable  to  the sentencing, and the key issue.  I do not repeat that now.

Facts

[2]      On the late evening of 7 January 2008, or in early hours of the following morning,  Mr Duff  murdered  Bronwyn  Aroha  Whakaneke.    Ms  Whakaneke  and

Mr Duff  had  been  in  a  de facto  relationship  for  8 years.  They had  no  children

R V QUENTIN MAIHI DUFF HC WN CRI 2008-091-98  3 October 2008

together, but Ms Whakaneke has two daughters from a previous relationship.  They live with her parents.

[3]      Mr Duff is a patched member of the Porirua Mongrel Mob.  I mention that because the killing occurred at the Mongrel Mob residence in Porirua.  Apart from providing the background context as to where the couple were prior to the killing, the gang context has no relevance.

[4]      On the day on which Ms Whakaneke died, Mr Duff was required to spend the day at the gang residence to look after matters.   That would include spending the night there.  Ms Whakaneke accompanied him.  It appears that they drank during the day.  Sometime around 9.30 in the evening a fight between them began, and it ended in her death.  Throughout this period from 9.30 p.m. onwards, there was only one other person present.    He was  asleep for  most  of  it  but  recalls  waking around

3.00 a.m. by which time Mr Duff was asleep.   If that is accepted, then the killing occurred between 9.30 p.m. and the time when the other person awoke.  At one point in an interview, Mr Duff said “before midnight”.

[5]      The only description of what started the events is that of Mr Duff.  He says that the victim punched him on the nose, but does not say why.  It is then said that the victim went to the bathroom and when she emerged she was attacked from behind by Mr Duff.   Before moving on to detail the assault to the extent that is necessary, I observe that there is evidence of texting between the couple shortly before this time which indicates that an argument had already started.

[6]      The details of the assault stem primarily from forensic examination.  Mr Duff says he has little recollection of events but the Summary of Facts is not contested.

[7]      By way of general description, the assault that led to Ms Whakaneke’s death involved being hit in the head with a metal pipe similar to that used in scaffolding, being hit about the body with a blunt instrument probably that pipe, and being kicked and stomped.  The official cause of death are the blows to the head with the pipe.

[8]      It is estimated that there were blows to the head, and then a number of what are described as medium blunt trauma injuries, and heavy blunt trauma injuries.

[9]      The Summary of Facts records that the forensic examination indicates that there were at least 8 blows to the head.  The photos I have seen support that several of those blows were to the forehead and the most forceful blow was just above the ear.  The victim has then been hit about the body with the pipe and has also been punched and kicked.

[10]     The pattern of blood splatter and other items found in the room where the assault occurred indicate that the deceased attempted during the assault to avoid her attacker.  It appears she has hit a table at one point, and the blood pattern around the tables suggests that she might have been running around it to avoid Mr Duff.  There are clumps of her hair with blood on it in the room.  Eventually it appears that Ms Whakaneke collapsed from her injuries.

[11]     There is then, distressingly, a second phase to the assault.   It appears that from where she collapsed within the room, the deceased has been dragged outside by Mr Duff  whilst  still  conscious.    There  was  a  bus  parked  in  the  grounds  and Ms Whakaneke was dragged along the ground and positioned on the steps of the bus. The forensic evidence indicates that she was alive during this process.  There was, for example, grass clutched in one of her hands. The dragging process resulted in gravel injuries to her face. Once positioned on the step of the bus, Mr Duff has again assaulted the deceased.  Exactly what has occurred cannot be known, but the Crown contention is that what followed was an attempt by Mr Duff to make it appear as if an outside party had sexually assaulted and killed Ms Whakaneke.

[12]     I consider the inference that that is what motivated this phase of the assault is irresistible.  However, I observe that if there is some other explanation it does not assist Mr Duff or place him in any better light.   Essentially, the lower part of Ms Whakaneke’s clothing was removed, and she was apparently kicked in the genital and anal area.  The purpose of this was, as noted, to make it seem as if there had been a sexual assault.

[13]     It is apparent from the evidence of the other person who was at the residence that eventually Mr Duff went back inside and went to sleep.  In the interim, at some point, Ms Whakaneke passed away whilst outside lying on the step of the bus.

[14]     The next morning around 5.15 a.m. Mr Duff must have awoken, and also awoken the other person who was still asleep.  He told that person that he had found his partner dead outside.  Other members of the gang were contacted, and when they arrived they rang the Police.

Victim impact statement

[15]     Today  at  sentencing  Bronwyn’s  father  has  read  out  his  victim  impact statement.  Bronwyn was an only daughter, and she had one brother.  She herself had two  daughters  who  have  lived  most  of  their  lives  with  their  grandparents. Mr Whakaneke’s statement of the impact of the killing on him reflects the tragic pattern in these cases of someone who has not only lost a daughter, but who has lost a daughter in such horrific circumstances.  It must be the case that these events stay with  family  members  forever.    Mr Whakaneke  expresses  his  sympathy  for  the mother of Mr Duff and understands that the events will also have had an impact on her.

[16]     Victim impact reports have also been filed from Bronwyn’s mother and her two daughters.  I indicate that I have read them all and taken them into account, and acknowledge the hurt that the events being discussed today have caused to you all.

Personal circumstances

[17]     Mr Duff is 35 years old.  He was previously married when 21 years old, but I apprehend that marriage did not last long.  As noted, he was in a relationship with the deceased for 8 years.   The bulk of the information about him comes from his mother who provides a full account of his life growing up.   It seems that it was a difficult upbringing at times, but it is not suggested on Mr Duff’s behalf that those events  can  have  any  significance  on  what  happens  today.    It  appears  he  has

maintained a close relationship with his mother who continues to offer support to him whilst plainly being shocked and distraught at what he has done.  For himself, Mr Duff can offer no real explanation.  He appears also shocked about what he did and recognises the hurt he has caused to others by that action.  He makes no attempt to excuse or minimise his conduct.

[18]     Mr Duff has several previous convictions but only three of those relate to violence, and are limited to common assault charges.

Submissions

[19]     The  focus  of  the  submissions  before  me  has  been  on  the  length  of  the minimum non-parole term that should accompany the sentence of life imprisonment. The Crown contends that the offending comes within section 104 of the Sentencing Act 2006.  It also submits that the appropriate starting point means a 17 year term is not manifestly unjust notwithstanding a guilty plea.

[20]     By contrast, Mr King submits that the circumstances do not reflect the type of conduct that has been required in other cases to bring the case within that section. He submits that the proper course is for there to be no minimum non-parole term beyond the default period of 10 years.  It is in his submission better for the Parole Board to be able to assess matters at that time and take whatever steps are required. He emphasises that 10 years is the minimum and does not in any way mean that that is all the time in jail that Mr Duff would necessarily serve.  He reminds the Court that the essential sentence has always been, and remains, life imprisonment.

[21]     The specific focus of the submissions was on the concept of “high level of brutality”  as  appears  in  paragraph  (e)  of  section 104.    The  Crown  had  made  a supplementary submission that the circumstances also fell within the “particularly vulnerable victim” paragraph of that section.  This was based on an allegation that, although there were no convictions, Mr Duff had regularly been violent towards Ms Whakaneke during the course of their relationship.   Further that she had not formally laid charges because Mr Duff had threatened retribution would follow from his associates.  There is a history of Ms Whakaneke seeking medical treatment.  I do

not consider that aspect further.   Leaving  aside  the  issue  that  it  may require a disputed facts hearing, I do not consider that the claimed circumstances, even if true, would bring it within the section.  In my view, section 104 is much more aimed at situations that, on their face, plainly fall within it.  If one has to work to get there then my instinct is that it is not a section 104 case.  Section 104 is not the only route by which an extended period of non-parole is fixed.  I cannot see any need to strain its language when the Court has anyway a general power to fix minimum non-parole terms to suit the circumstances.

[22]     I  do  not   detail   further   the   competing  submissions   on   brutality  and callousness.  They are inevitably reflected in my decision on the point.  I also record that I have considered the cases to which I have been referred, but do not comment on them orally now.   The written version will contain a brief explanation of my assessment.

[23]     Mr King has referred to Tiumalu, Clifford J.  There a 14 year starting point was taken.  I saw the assault here as comparable to what happened there in the gang pad, but of a shorter duration.  The subsequent conduct by Mr Duff put it in another category.   Rajamani, which I had involvement as a trial Judge, lacked any of the sustained factors that one has here.  In that case there was serious aggravating post death activity, but I did not see the case as engaging the same issues as here.

[24]     I consider there are similarities to Fenton where 17 years was imposed.  The differences are so obvious I do not need to list them, but in the background domestic context, the loss of all control and the sustained beating there are broad parallels.

[25]     Finally,  I note Mr King made focussed submissions on the need for real credit for a plea.   In homicide there is usually a defence of some sort that can be properly run.  Counsel must be able to advise clients that pleas will get a meaningful credit.

Decision

[26]     In broad recognition of the approach suggested in Williams, I indicate that my assessment of the circumstances are that the case would attract a starting sentence somewhere in the range captured by section 104.  There are aspects to the events of that night that take it beyond the inevitable baseline of bad conduct involved in any killing.

[27]     If one took the events within the clubhouse standing alone, then I consider there would be a genuine debate as to whether section 104 was engaged.  The length and nature of the assault would certainly require a marking out and an increased term, and in ordinary language the events are rightly described as brutal, but whether alone they would put the case within that category for which section 104 is designed is less clear.  The length of the assault is not known but would inevitably have been sustained given the forensic evidence from the room.  However, when one adds the conduct involved in moving Ms Whakaneke from the clubhouse to the bus, what happened at the bus, and the fact that Mr Duff then left his victim, probably still alive,  to  go  back  into  the  clubhouse  and  sleep,  I  have  no  doubt  at  all  that section 104(e), in its totality, is properly engaged.

[28]     That therefore leaves the sole issue as to whether a sentence of 17 years would be manifestly unjust.

[29]     The  Crown  position  is  that  the  appropriate  starting  point  is  higher  than

17 years, so that a term of 17 years would adequately reflect the guilty plea discount. I do not take it to be submitting that if I were of the view that 17 years was the highest starting point there could be, some recognition of the guilty plea would be inappropriate.   As regards that recognition, the Crown submits that the plea came after depositions, that it was a recognition of inevitability, and that Mr Duff’s actions in initially denying the killing count against expressions of remorse.

[30]     I see the matter somewhat differently from that.   Whilst it is plain that the prosecution had a strong case against Mr Duff, it is acknowledged that part of the

strength comes from the evidence of fellow gang members.   The difficulties in getting such witnesses ultimately to the witness box are well known.

[31]     Further, one can never underestimate the heartache that a defended hearing causes to the victim’s families.  As terrible as the description of events today may seem, they are nothing compared with the detail that inevitably is required in a contested trial.

[32]     Concerning remorse, it is always the case that an offender in these situations has a real incentive to proclaim remorse and to apparently accept responsibility when not truly doing so.  However, although it did not come as early as people might have wished, Mr Duff has pleaded guilty.  What he did was inexplicable, and so it does not seem surprising or untrue to me when he says that he cannot really explain it.  He has not sought to make excuses or justify his actions and accepts the consequences that will today follow from his conduct.

[33]     In those circumstances I consider it continues to be in everyone’s interest for the Court to continue to give genuine recognition to a guilty plea and what it means. I consider there are many aspects to that, but if the only benefit were to provide an incentive to others in similar circumstances to also acknowledge their offending and to save families the trauma of a trial, then that in itself would seem to me to be sufficient.  The test is manifestly unjust.  I have no doubt that failing to give credit for the guilty plea would make the sentence manifestly unjust.  The quantum of any deduction does not appear to be constrained by the same test, and so I fix the quantum by reference to normal principles.  From a 17 year starting point of actual time to be served, 2½ years is about 15%.   That is much less than the normal discount and is the least that I consider should be given.

[34]     I  accordingly  intend  to  give  Mr Duff  a  reduction  of  2½  years  from  the minimum term of imprisonment to reflect his guilty plea.

Formal sentence

[35]     Mr Duff, on the charge of murdering Bronwyn Whakaneke, I sentence you to life imprisonment and order that you serve a minimum of 14½  years in jail before you are eligible to be considered for release on parole.

Please stand down.

Simon France J

Solicitors:

Luke, Cunningham & Clere, PO Box 10 357, Wellington, email: [email protected]

G King, Barrister, PO Box 24 086, Manners Street, Wellington, email: greg[email protected]