R v Epiha
[2019] NZHC 1075
•16 May 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2017-009-007163 [2019] NZHC 1075
THE QUEEN v
KATRINA ROMA EPIHA
Hearing: 16 May 2019 Appearances:
M McClenaghan for the Crown S J Shamy for the Defendant
Judgment:
16 May 2019
SENTENCING REMARKS OF NATION J
[1] I will just begin by thanking those who read their reports and all those who provided written victim impact statements. It must have been very difficult to have to, again, think about everything that you wanted to say, things were very important for you to be able to say but also things that were very important for Ms Epiha to hear. It is right that you have had the opportunity to say those things. It is right that Ms Epiha heard them and it is right that I, as the sentencing Judge, heard them. So, thank you for those statements.
[2] Ms Epiha, on 5 August 2017, you were just short of 19 years of age. At a party, you became angry with Alicia Nathan. With that anger, you obtained a large kitchen knife. You went back to Alicia and confronted her, swinging the knife at her neck.
R v EPIHA [2019] NZHC 1075 [16 May 2019]
You stabbed her twice, once in the upper left arm and once in the left side of her neck. You stabbed her so hard, the blade went into her chest cavity. You killed her.
[3] You know that, as a result of the way you acted when angry, now coming towards the age of 21, you face a life sentence for murder. That will be your penalty but that cannot compare, as no sentence can, to the harm that you did to Alicia and the loss that her family, her whānau have suffered and will always suffer. You have heard the victim impact reports and your counsel has assured me he will also show them to you so that you can read them.
[4] Alicia Nathan was just 32 years old when she died. She should have had a whole life ahead of her, a life in which she could be the mother she wanted to be to her son, who was then just three years old. What you did took away that life. You know you deprived her little boy of the love and care he could expect to have had from a mother. The victim impact reports tell me, and they must have told you, that he was the centre of Alicia’s life.
[5] The victim impact reports must also have told you, as they have told me, how Alicia Nathan was loved by her family. The reports detail just how Alicia’s death has affected them, both physically and emotionally, of the hours of tears, depression and anxiety that your actions have caused them and the way it has made it difficult for them to carry on with the lives they were leading. Because of your actions, they suffer a life sentence.
[6] However, unlike Alicia, you will have the chance to make something of your life. The least you can do to try and make up for what you did is to make the most of that opportunity.
[7] The way you acted when angry on that night was brutal. It was not entirely spur of the moment. You became angry when Alicia, who you did not know, and a friend came to the house you were at where there was a party, and they turned up the music. After a confrontation with Alicia when you were upstairs in the house, you went downstairs to the kitchen to obtain the knife. When you went to the lounge with the knife, you held it in a concealed position with the blade along your arm. You ignored other party-goers telling you to put the knife down. After you stabbed Alicia
and she collapsed, you stood with the knife, telling other party-goers not to go near her.
[8] After you had been disarmed by someone at the house, you ran from the house. You saw Alicia’s friend trying to flee and you chased her. That person managed to position herself behind a car. You tried to catch the friend but were unable to do so and, while you were doing this, you were threatening to kill that person. As well as pleading guilty to the charge of murder, you have pleaded guilty and been convicted of threatening to kill this person.
[9] The sentence for murder has to be life imprisonment. This means that you will be released from prison but still subject to that sentence only if the Parole Board decides that it will be safe for you to be in the community.
[10] The pre-sentence report tells me that, because of your limited previous criminal offending, their assessment as to the risk of your reoffending is put at low-medium. But your risk of doing harm to others is currently assessed as high. This is based on the murder and the threatening to kill offences you have committed, your current tendency to resort to violence when angry and your attitudes.
[11] Whenever the Parole Board has to consider whether you can be released from prison on parole, it will have very good information as to whether, in the years from now on, you have managed to change the way you deal with your anger, whether you have shown that you no longer resort to violence towards other people when you become angry or stressed and whether your attitudes have change so that there is not a high risk of you doing harm to others. Unless you make those changes, you are likely to spend a very long time in prison.
[12] When in Court before me on a number of earlier occasions, you conducted yourself with respect for where you were and what was happening, in ways that suggested to me that you have the potential to be different and to deal with those aspects of your personality which do make you such a risk to others. I understand that you were willing and ready to attend a restorative justice meeting with Alicia’s mother and, although that did not happen, there was value in your being willing to do that.
[13] You told the report writer that, despite all the problems you had growing up, you had dreams of a positive life, particularly around sport at which you excelled. In the letter you wrote to the Court, which I have read, you say that you wish to take advantage of the programmes that will be available to you in prison to deal with your issues. You must do so. But, for you to have the opportunity to do that, you will have to demonstrate, while in prison, that it will be safe for you to be involved in such programmes. It is important that you do this. It is what you owe to all those who have suffered and will continue to suffer as a result of what you are being sentenced for.
[14] The aggravating features of your offending are readily apparent from my brief description of what occurred, the seriousness of the violence with the way you attacked Alicia, the use of a weapon and the way Alicia was vulnerable when she was taken by surprise. The extent of the harm you did is self-evident and obvious from the victim impact reports.
[15] There are no mitigating features of the offending itself but, to the extent there was premeditation, this was limited. The murder resulted from the way you acted suddenly after becoming intensely angry. As to you personally, the Crown accepted that, while you have a limited history of earlier offending, it was not the sort of history that should result in an increase in the minimum term of imprisonment the Court has to impose. Before this conviction, you had only two convictions for any form of violence, just two convictions for assault committed when you were 17, for which the Court suspended sentence.
[16] I have taken into account mitigating circumstances relating to you personally. The most important of these is your youth at the time of the offending. Courts and Parliament, through legislation, have recognised that 18 year olds do not have psychologically or neurologically the same maturity and ability to make responsible and rational decisions as older people, and this has to be borne in mind when assessing the seriousness of the offending and also the greater potential for rehabilitation. Because of your youth, there is the potential for you to show, while you are in prison, that you can reduce the way you put others at risk if and when you become angry.
[17] Your counsel provided to the Court a detailed report from a psychiatrist, Dr Monasterio. I direct now that a copy of that report be provided to the Department of
Corrections with these sentencing remarks. That report describes how you were born and raised initially in a gang environment, where you suffered from extensive and repeated violence and neglect. He says you were in CYPFs care by the age of seven. You were using drugs and alcohol by the age of six. A report prepared while you were in youth detention in 2012 documented that, by the age of 13, you had a well- established history of physical, psychological and other trauma and neglect, beginning from early childhood. It noted that, by then, you had a pattern of violent responses to minor provocation. That is what you have to try and turn around now. It will not be easy. Perhaps having heard the victim impact reports will remind you, when it is difficult, how hard you must try to achieve this. I also understand from the pre- sentence report that, while in prison, you have had the benefit of almost daily contact from a mother and sister, and perhaps that support in the future can be positive and helpful to you in trying to achieve that change.
[18] A psychological report when you were 12 identified you suffered from a number of psychiatric disorders but you told Dr Monasterio you have had no previous contact with specialist mental health services. I would hope that, while you are in prison, you might be able to benefit from that sort of specialist assistance if it can be made available to you.
[19] Dr Monasterio’s report and the same matters referred to in a pre-sentence report explain why and how there came to be this pattern of serious violence when you were angry, but they cannot excuse the way in which you were violent and killed Alicia Nathan. Unfortunately, there are other people who have grown up in environments such as you did, many of whom, like you, were taken into CYPFs care, or Oranga Tamariki care, by an early age. Not all such people become involved in committing the sort of violence that you have committed. It was you who decided to go and get a knife when you were angry. It was you who decided to use it to stab Alicia Nathan when others were trying to stop you doing this.
[20] You told the Probation Officer who prepared a pre-sentence report that you had one positive role model in your life, your Uncle, who had been in a gang for many years but left that gang and turned his life around. You are going to have to follow his example.
[21] In the letter you wrote to me, you say that you are remorseful for what happened. The pre-sentence report suggests that you are not yet taking full responsibility for what you did but that report does indicate that you are aware of the suffering you have caused others. I think you showed that today while you were listening to what you had to hear. From the way you showed that you were aware of the suffering you have caused others, I accept, as you indicated to the Probation Officer, that you showed you were ashamed and sorry. In that respect, I do give you some credit for remorse.
[22] You did eventually, and before trial, plead guilty to these two charges. This was on the basis you understood that, when you stabbed Alicia with a knife, you knew that she might be killed but did it anyway. You pleaded guilty on the basis you were consciously reckless as to whether you killed her or not. It is on that basis you admitted being guilty to murder. You need to acknowledge that.
[23] However, your pleas of guilty did avoid the need for a trial and the further anxiety and trauma a trial would have caused all the victims of your offending, particularly the whānau of Alicia Nathan.
[24] You were first given an indication of the sentence that would be imposed on the charge of murder in July 2018. You did not accept that indication as you could have and there were then all the costs and consequences associated with continuing Court proceedings, including an appeal to the Court of Appeal over a pre-trial ruling and an application for EM bail.
[25] Despite that, when you sought a further sentence indication in March 2019, the Crown did not seek any uplift on the indication I gave in July 2018 and I did not require such an uplift. You are fortunate there has been no such uplift. In that, I make no criticism of your current counsel. He has obviously done everything he could for you in light of the instructions you have given him. But, given the way you did ultimately plead guilty to these charges, I need to say that you were obviously well served by the lawyers who were representing you in 2018. I infer from what happened in 2018 they must have advised you of the way you would benefit from accepting my then sentence indication and a plea of guilty to the murder charge.
[26] Given that you ultimately did plead guilty, the earlier you did this, the better was your chance of receiving the lowest possible minimum term of imprisonment.
[27] At the time you first asked for a sentence indication, the Crown suggested a starting point of 11 years’ imprisonment would be appropriate. Having regard to matters relating to you personally, particularly your youth and credit for guilty pleas, both the Crown and your counsel suggested an end minimum term of 10 years’ imprisonment would be appropriate. I adopted a starting point of a minimum term of
12 years’ imprisonment but indicated a minimum term of 10 years would be appropriate for mitigating factors relating to you personally and credit for guilty pleas. Ultimately, this year, this was the indication you accepted with your guilty pleas.
[28] I emphasise however that, with a conviction for murder and credit for your guilty pleas, you are still sentenced to life imprisonment. If you are ever released from prison on parole, you will always be subject to the oversight of the Department of Corrections and ultimately the Parole Board. You will only be released from prison if the Parole Board considers it will be safe for you to be in the community. The challenge for you now, over the next 10 years, is to show this can be the case.
[29]Ms Epiha please stand.
[30] On the charge of murder, you are sentenced to life imprisonment with a minimum term of imprisonment of 10 years.
[31] On the charge of threatening to kill, you are sentenced to imprisonment for six months. That sentence is concurrent with your sentence on the murder charge.
[32] I will have to give you a three-strikes warning. This warning is of particular importance Ms Epiha given what I understand have been the number of occasions on which there has been violence or potential violence while you have been in prison. The warning is this. [Judge reads first warning.] Ms Epiha, you can now stand down.
Solicitors:
Raymond Donnelly & Co.,
S J Shamy, Barrister, Christchurch.
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