R v Edwards

[2021] NZHC 1612

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-019-7839

[2021] NZHC 1612

THE QUEEN

v

PARAKI EDWARDS

Hearing:

1 July 2021

Appearances:

R L Mann for Crown

P L Borich QC for Defendant

Judgment:

1 July 2021

SENTENCING REMARKS OF LANG J

Solicitors:

Hamilton Legal, Hamilton

R v EDWARDS [2021] NZHC 1612 [1 July 2021]

[1]    Mr Edwards, you appear for sentence having pleaded guilty to a charge of murdering your partner, Ms Michelle Hurunui. You have also entered a guilty plea to a charge of causing grievous bodily harm to your 11 month old son, Te Ariki, with reckless disregard for his safety. The maximum sentence for the offence of murder is life imprisonment, whilst the maximum sentence on the other charge is seven years imprisonment.

Factual background

[2]    You are to be sentenced on the basis of an agreed summary of facts. This records that you and Ms Hurunui were in a domestic relationship at the time of the offending. She was 32 years of age and had five children aged between 12 years and 11 months. You are the father of her youngest son, Te Ariki.

[3]    The relationship between the two of you was clearly turbulent and the present charges do not reflect the only occasion on which you have been before the courts for offending involving violence. From  time  to  time  issues  such  as  these  caused  Ms Hurunui to leave the relationship but, as is so often the case in this type of situation, she ended up returning to you.

[4]    In early December 2018, you began living in the home of Ms Hurunui’s brother and his partner. Ms Hurunui and Te Ariki were also living at that address. On the morning of 24 December 2018, Christmas Eve, Ms Hurunui’s brother left the address early to go to work. This left Ms Hurunui, Te Ariki and you as the sole occupants of the address.

[5]    The summary records that an argument developed about whether you could take Te Ariki to spend Christmas with your family. This developed into a physical altercation in which you administered a prolonged and severe beating to Ms Hurunui in the lounge of the address. You struck her multiple times about the head and body with both your fists and at least one sharp-edged object. You used a child’s toy bubble machine to strike Ms Hurunui repeatedly to the point where it disintegrated, leaving multiple plastic fragments around the room. In addition, glass panes of a ranch slider door were broken, as was a picture frame. The ferocity of the attack was such that the

wounds you inflicted on Ms Hurunui caused blood to spatter on walls and other items in the room.

[6]    Adding to the seriousness of the attack is that Ms Hurunui was holding Te Ariki in her arms for at least part of the time during which you were assaulting her. Although he was not your target, several of the blows you inflicted landed on your young son, causing him very serious injury.

[7]    You have told the writer of the pre-sentence report that the attack lasted for no longer than eight minutes. In my view that is a lengthy period for this kind of assault by any standard. When it finally came to an end Ms Hurunui was lying on the floor of the lounge and you placed a blanket over her body. You put your son in his car seat or baby capsule. You then made several calls on your cellphone attempting to make contact with various people close to you, including your adult son and niece. Remarkably, however, at no stage thereafter did you make a call to the emergency services to fetch help for either Ms Hurunui or for your son. Instead you remained at the address with the child and Ms Hurunui for several hours after the violence had concluded. During this period you changed the clothing you were wearing and hid one of your mobile phones under the house. You also washed blood stains from your person. In addition, you burned several items including another cellphone and pieces of the broken picture frame.

[8]    Ms Hurunui’s brother returned from work at about 1 pm. When he asked you what  was  going  on  you  said  “It’s  not  good.  I’ve  killed  her”.  When  he  saw Ms Hurunui’s body you told him “Your sister bashed my son, so I had to stop her”. At that point the emergency services were called. They found you sitting barefoot in the carport next to the baby capsule. Your son was lying in the capsule and was obviously very unwell. He was ashen in colour and his left eye and the left side of his face were blackened and swollen. He was urgently transported by rescue helicopter to Waikato Hospital. Ms Hurunui was pronounced dead when the emergency services arrived.

[9]    You told the police who initially attended the address about the argument that had occurred. You said you had told Ms Hurunui you would leave and that, as you were walking out the door, you heard a smacking noise. You said that when you

looked around you saw Ms Hurunui slapping your child and that is when you began striking her. When the police asked you if she had been holding the baby when you hit her, you said “Yeah but I don’t really know what happened after that. I think I hit her with something as well, but I don’t remember that”. You also told the police that these events had happened several hours earlier, and that you would have called for help, but you did not have a phone. This was obviously a lie given the fact that you appear to have had two cellphones that you could have used to call for help. You used at least one of these to call your friends and relatives but did not think to use it to call emergency services.

[10]   When the police asked you if you had used anything else to hit Ms Hurunui you confirmed that you had used something else and said “I think it was one of my son’s toys like a bubble toy, a bubble machine”. You said you did not know whether she was standing or lying down when you had been striking her. You were ambivalent or undecided as to whether you had actually struck your son.

[11]   A post-mortem examination was subsequently carried out on Ms Hurunui’s body. This revealed multiple bruises, abrasions, cuts and lacerations to every part of her neck and head. She also had a fracture of her nasal bone structure, her nose, as well as bleeding in the brain. Some of the cuts to her scalp were consistent with having been caused by glass. Some of the wounds to her face had a configuration consistent with being inflicted by a sharp-edged object, such as broken plastic. This had left parallel lines on her face.

[12]   The post-mortem examination revealed that Ms Hurunui had probably remained alive for a period of up to 20 minutes before injuries and bleeding to her brain resulted in a lack of oxygen that caused her death.

[13]   In addition, the pathologist found multiple bruises over her back and buttocks as well as two fractured ribs, one on each side. There was also extensive bruising to each of Ms Hurunui’s limbs along with multiple abrasions and cuts to her arms. Some of these had the same “tram track” appearance consistent with having been caused by the edge of a sharp object. The pattern of bruising to the limbs and backs of her hands was consistent with Ms Hurunui endeavouring to defend herself from the attack.

These were also consistent with her at one point holding your son whilst standing in an upright position during the attack. There were also substantial bruises to her legs, consistent with her having used her legs to defend herself by kicking out at you. Although the examination revealed the existence of a substantial number of injuries, it was not possible to identify the number of blows you struck with any precision.

[14]   Your son Te Ariki also suffered significant injuries. When he was admitted to hospital he was in a serious condition and required ongoing life support including airway intubation. Bruising was noticed to the left side of his face, head and body as well as to his right upper arm and shoulder area. His forehead was generally discoloured and swollen with bruising and abrasions across the left side into the centre of the forehead, along with bruising to both eyes, his left cheek and ear. The summary records that some of the bruising is consistent with your son being held by Ms Hurunui as you assaulted her as well as being dropped by her during the assault after he had received some blows to his body.

[15]   At least some of the impacts to your son’s head and left arm had been delivered with high or extreme force. In addition, the pathologist noted a fracture to your son’s forearm beneath a linear bruise that ran from his upper arm, suggesting an impact to the arm with extreme force using a linear and rigid object whilst the child’s elbow was bent. Internal scans of his skull revealed multiple fractures to the left parietal bone and underlying damage to the brain in this region.

[16]   The infliction of these injuries resulted in Te Ariki being subject to seizures and having decreased movement on his right side. A CT scan shows permanent loss of brain tissue in the front parietal region. This means your son has now been diagnosed as suffering from cerebral palsy. This is a neurological disability caused by brain injury sustained in the first two years of life and will have life-long consequences for him. The extent of his disability will only be known over time as he develops. Likely consequences include epilepsy, impaired mobility, learning difficulties, attention difficulties and language delay.

Victim impact statements

[17]   I have had the benefit of reading victim impact statements from three members of Ms Hurunui’s whanau. Two of these have also been read to the Court. These make it clear that your offending has had a devastating effect not only obviously for      Ms Hurunui and Te Ariki, but also for the wider members of the family. What should have been a joyous Christmas Day was for them a time of absolute tragedy. Rather than celebrating being in each other’s company they spent the day making funeral arrangements. The days after Christmas were spent accompanying Ms Hurunui’s body ultimately to her funeral and then to be buried. That is one of the most devastating Christmases that could be imagined for any family.

[18]   Nothing the Court can do today can repair the damage by your senseless attack on Ms Hurunui and Te Ariki. You must live for the rest of your life knowing that you have not only robbed Ms Hurunui of her life at a young age, but you have also robbed her four children of a mother. Parents have lost a child. Brothers and sisters have lost a sibling. Cousins have lost a cousin, and so on. The ripple goes on and on.

Approach

[19]   There is no dispute that the sentence to be imposed on you must be one of life imprisonment. The main issue to be determined today is the minimum term of imprisonment you will be required to serve before being eligible to apply for parole.

[20]   The Crown contends that several aggravating factors of your offending engage s 104 of the Sentencing Act 2002 so that the Court must impose a minimum term of not less than 17 years imprisonment unless it would be manifestly unjust for that to be done.

[21]   In cases such as this the Court must first consider the sentences imposed in other broadly similar cases in order to ascertain what minimum term of imprisonment would ordinarily be imposed without taking into account s 104. Next, the Court must determine whether s 104 is engaged. If it is, the Court must decide whether the imposition of the 17 year minimum period of imprisonment required by s 104 would

be manifestly unjust.1 In large part this requires the Court to stand back and determine whether your offending falls into that category of offending to which s 104 was designed to apply.

What minimum term would be appropriate leaving aside s 104?

[22]   Your offending involves numerous aggravating factors. First, it involved a lengthy and sustained attack to Ms Hurunui’s head and body using not only your fists but a sharp object. It also involved the infliction of serious violence on your young son that will have life-long consequences for him. The Crown has provided me with three cases involving offending that it says could be regarded as broadly similar to those in your case.2 Other cases are of course of limited assistance because the facts in every case are always different. These Crown says that the three cases to which it has referred justify a minimum term of imprisonment of 17 years putting aside the application of s 104.

[23]   On your behalf, Mr Borich disagrees. He points to cases that he says support a minimum term of no more than 11 to 12 years imprisonment as being appropriate.3 He accepts, however, that this may need to be increased to reflect the fact that you also seriously injured your young son and have previous convictions for offending involving violence.

[24]   Mr Borich relies in particular on R v Callaghan.4 That case involved broadly similar offending to that in the present case. It also involved an offender who did not seek help and who tried to cover up aspects of the offending. The sentencing Judge in that case adopted a minimum term of 11 years imprisonment and then increased that by four years to reflect a charge of perverting the course of justice.

[25]   Mr Borich also contends the seriousness of your offending is lessened because you have said from the outset that you saw Ms Hurunui striking your son as you were

1      R v Williams [2005] 2 NZLR 506 (CA) at [52]–[54].

2      R v Samson [2021] NZHC 1335; Te Hiko v R [2019] NZCA 41; R v Peeni [2020] NZHC 1352.

3      R v Berry HC Auckland CRI-2010-092-2165, 7 December 2010; R v Ngeru HC Wellington CRI- 2008-085-5996, 11 December 2009; R v Callaghan [2012] NZHC 596; R v Eddy [2014] NZHC 1543; R v Akuhata [2015] NZHC 1098; R v Davis [2019] NZCA 40, [2019] 3 NZLR 43; R v Vea [2020] NZCA 68.

4      R v Callaghan, above n 3.

about to leave the house. You rely on this as a form of provocation that lessens the overall seriousness of your offending. I do not accept this submission. The Crown obviously cannot contradict what you told others because neither Ms Hurunui nor your son can now contradict it. You have offered to give evidence today to say it again in Court and be cross-examined. Again, I see little purpose in that. Your assertion simply does not explain why Ms Hurunui would suddenly want to assault her young son as you say she did. I note also that you changed your story when you spoke to the person who prepared the pre-sentence report. On that occasion you said your partner threw your young son against the wall and you reacted violently when you saw it.

[26]   I regard both versions of events as fabrications you have created to explain and minimise the seriousness of your offending. In this context I note that the pre-sentence report prepared for sentencing today records that pre-sentence reports prepared in November 2017 and August 2018 show you also attempted to shift responsibility for your earlier offending involving violence to others. The report observes that this is now becoming a recurring theme. I acknowledge that you may have had difficulties in expressing your true feelings to the person who prepared the pre-sentence report. However, it does not remove the fact that you told her Ms Hurunui had thrown your young son against the wall when you had earlier told others that you saw Ms Hurunui striking him.

[27]   Another issue Mr Borich has raised in his submissions is an assertion that you attempted to administer CPR once you realised the damage you had done. You have again offered to give evidence today in support of this assertion. I consider this to be unlikely because if it occurred, I am satisfied you would have told those who attended the scene on the day that this took place. You would also have told the writer of the pre-sentence report. Instead, the assertion emerges for the first time in your counsel’s submissions.

[28]   Although the facts in the present case are obviously different in some respects, I consider your offending to be broadly analogous to that in the three cases identified by the Crown. In particular I consider it has some similarities to the case of R v Peeni.5

5      R v Peeni [2020] NZHC 1352.

In that case the offender pleaded guilty to a charge of murder after causing his former partner’s death by subjecting her to a sustained beating. This involved the repeated use of a paving brick to strike her in the head and in that sense is more serious than your offending. The beating was also accompanied by demeaning comments the offender made about his partner. That is not a feature of your offending either. Furthermore, the offending in Peeni occurred in front of the couple’s three young children who endeavoured to intervene. That is a further aggravating feature, not present in your offending.

[29]   I was the Judge who sentenced the offender in Peeni and, setting aside the operation of s 104, I said the offending would ordinarily justify a starting point for the minimum term of imprisonment of 17 years.6 Allowing for the features that make your offending less serious than that in Peeni I consider the appropriate minimum term of imprisonment on the charge of murder to be one of 15 years. This reflects the sustained nature of the attack, the nature and number of injuries inflicted against a defenceless victim, the use of a weapon to cause some of the injuries and your failure to seek any help once the attack ceased.

[30]   In determining the length of the minimum term the Court is entitled to take into account associated offending as part of the surrounding circumstances.7 I consider an uplift needs to be added to reflect the charge of causing grievous bodily injury to your young son. Although not deliberate, the extent of the harm you have inflicted on him is such that an uplift of at least three years is required. This means that, even putting to one side the operation of s 104, I consider a minimum term of at least 18 years imprisonment is justified on the charge of murder.

[31]   I would, however, ordinarily be required to give discrete recognition to mitigating factors. The first of these in the present case are your guilty pleas. The second mitigating factor your counsel relies upon are factors identified in a report your counsel has placed before the Court under s 27 of the Sentencing Act 2002. I will discuss these in greater detail shortly, but for present purposes it is sufficient to note that I would ordinarily allow a discount of two years to reflect these factors. This

6 At [23].

7      R v Hoko (2003) 20 CRNZ 464 (CA) at [65]-[66]; R v Houma [2008] NZCA 512 at [35].

means that, putting s 104 to one side, your offending would ordinarily attract a minimum term of 16 years imprisonment.

Is s 104 engaged?

[32]   Section 104 requires the Court to impose a minimum term of imprisonment of 17years or more in several specified circumstances. In this case the Crown contends s 104 is engaged because the offending was carried out with particular brutality and callousness. Your counsel submits it does not reach that level.

[33]   The ferocity and duration of the attack on your partner, its ultimate outcome for both victims and the callousness of your response in failing to seek assistance for them persuades me that s 104 is engaged. As I have said, in such a case the Court is generally required to stand back and determine whether this is the type of case to which Parliament intended s 104 to apply. That is generally an important consideration when the minimum term of imprisonment would ordinarily be less than 17 years. That is not the case here. However, had it been necessary to do so I would have had no hesitation in finding that your offending comes squarely within the type of offending for which s 104 was designed.

[34]   However, in considering whether it would be manifestly unjust to impose a minimum term of 17 years, I am required to have regard to the two mitigating factors to which I have already referred. The first of these is your guilty pleas. In entering these  you  have  both  accepted   responsibility  for   your  offending  and  saved   Ms Hurunui’s whānau the trauma of reliving Ms Hurunui’s death through the lens of a criminal jury trial. I also accept that discussions between your counsel and the Crown began at a relatively early stage. However, the discount also needs to be tempered by the fact that you had no prospect whatsoever of defending these charges. I would reduce the minimum term of imprisonment by 18 months to reflect this factor.

[35]   Secondly, Mr Borich has provided me with a s 27 report that contains a great deal of information about your background and upbringing. I am satisfied that factors identified in the report are likely to have played a causative role in your previous offending and also the offending that brings you before the Court today.

[36]   For reasons that remain unknown, you were whāngaied very shortly after your birth. You were raised by your mother’s cousin and her husband and they became parents in every respect to you. You only met your birth father on one occasion and that was when you were an adult. Unfortunately, however, your whāngai parents separated when you were eight years of age and you were then cared for by your mother alone.

[37]   This coincides with the point at which you began to use cannabis on a regular basis. By ten years of age you were using cannabis on a daily basis. Your mother apparently preferred to see you smoking cannabis rather than sniffing solvents. She therefore permitted you to use cannabis in her home and also helped you fund your acquisition of it. Your cannabis addiction then became a major part of your life. When you took on employment that involved regular drug testing you turned to synthetic cannabis provided by local gang members.

[38]    You also lived in an environment where violence was rife and was the accepted norm. You were subject to extensive violence at the hands of your mother and this coincided with the commencement of your criminal offending.

[39]   From the age of 12 years, you began to spend much of your time in state- operated boys’ homes.  Your  behaviour  began to  decline further when you were   15 years of age and your father died. You and your father had undergone a serious disagreement not long before his death because you had taken up a religion that he apparently did not agree with. During your early teenage years you were also cared for by other family members at times and this produced an obviously unsettled existence for you. It also led to inconsistent schooling experiences.

[40]   At 16 years of age you entered into a relationship with a partner and you remained in that relationship for approximately 20 years. The writer of the report has spoken to your former partner and she confirms the relationship was marked by violence inflicted by you. This meant it was always of an “on again off again” nature, and she eventually went to Australia in 2014 to get away from you.

[41]   You told the report writer that the present offending occurred after you and Ms Hurunui decided to sample methamphetamine and ecstasy. You say you obtained a substantial quantity of both drugs from two local gangs with the intention that you would sell methamphetamine as a money-making venture. You say that during the two week period leading up to the offending you were heavily intoxicated as a result of taking these drugs. It is likely that you were under their influence at the time of the present offending.

[42]   This is not the first time on which you have been before the courts for violent offending. On 21 February 2018 you received a sentence of seven months home detention on a charge of injuring with intent to injure. This related to an offence committed on 4 June 2017. Then on 21 August 2018 you were sentenced to 12 months imprisonment on two charges of assault with intent to injure committed in a family violence context. You committed those offences on 22 December 2017 whilst you were on bail on the earlier charges. Given that your former partner went to Australia in 2014 I infer that these charges related to assaults on Ms Hurunui or another person in your  family.  You  were  released  from  prison  after  serving  this  sentence  on 28 November 2018. Regardless of who the victim was, it is an obvious matter of concern that you committed the present offences less than a month after being released from prison after serving a sentence imposed for violent offending.

[43]   At the time of the present offending you were also subject to prison release conditions prohibiting you from consuming or being in possession of alcohol and drugs. You reported to your probation officer on four occasions following your release and you maintained you had not been taking any drugs. You now acknowledge you had been consuming drugs on a daily basis during this period.

[44]   The factors identified in the report suggest your readiness to resort to violence against your partners was an instance of history repeating itself given the disturbed circumstances in which you grew up. In many ways it is no surprise that you now find yourself being sentenced on a charge involving serious violence. I would reduce the minimum term of imprisonment by six months to reflect the factors identified in the s 27 report.

[45]   If I was to give effect to s 104 I could only reduce the minimum term of imprisonment by one year because any greater reduction would produce a minimum term of less than 17 years. Section 104 does not permit this unless the Court considers a minimum term of imprisonment of 17 years to be manifestly unjust. I consider it would be manifestly unjust not to recognise both the mitigating factors I have identified in a meaningful way. The Crown has acknowledged that this may be the end result once mitigating factors are taken into account. I therefore propose to reduce the minimum term of imprisonment by two years to reflect those factors. This results in the minimum term of imprisonment being reduced from 18 years to 16 years.

Sentence

[46]   On the charge of murder you are sentenced to life imprisonment and ordered to serve a minimum period of 16 years before being eligible to apply for parole.

[47]   On the charge of causing grievous bodily harm with reckless disregard for your son your son you are sentenced to four years imprisonment.

[48]Both sentences are to be served concurrently.

[49]Stand down.

Lang J