R v Fenton HC Whangarei CRI 2006-088-3599

[2007] NZHC 1686

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2006-088-3599

THE QUEEN

v

NATHAN CHARLES FENTON

Hearing:         28 February 2007

Appearances: A B Fairley and N S Leader for Prisoner

M B Smith and B M O’Connor for Crown

Sentencing:     28 February 2007

Assault with intent to injure:  concurrent term of imprisonment of 12 months.

Presenting a firearm (3 charges): concurrent term of imprisonment of two months on each charge.

Conversion of a motor vehicle:  concurrent term of imprisonment of
12 months.
Theft:  concurrent term of imprisonment of 12 months.

SENTENCING NOTES OF RANDERSON J

Solicitors:  Thomson Wilson, PO Box 1042, Whangarei

Crown Solicitor, PO Box 146, Whangarei

R V FENTON HC WHA CRI 2006-088-3599  28 February 2007

Introduction

[1]      Mr Fenton you appear for sentence on one count of murder; one count of assault with intent to injure; three counts of presenting a firearm; one count of unlawfully taking a motor vehicle; and one count of theft from a motor vehicle.  The count of murder is obviously the most serious of these charges.   The maximum penalty for that offence is life imprisonment.

[2]      You pleaded guilty to all these charges at depositions in January 2007.

The Facts

[3]      The victim of the murder was your partner with whom you had formed a relationship shortly before.  You were 31 years of age and she was 17.  You formed your relationship in early August 2006 and just a few weeks later you battered her to death in the home in which the two of you were living in the early hours of the morning of 27 August 2006.   According to the summary of facts that you have admitted, you dominated the victim during this short relationship.   About a week prior to her death, you punched her in the head a number of times claiming she was not listening to you.

[4]      On the night of Saturday 26 August 2006 you went to a Black Power party in an adjoining property.  The victim stayed at home along with four other adults and three very young children.   The other adults in the house were a male and three young women (who were all sisters to each other).

[5]      You returned from the party next door in the early hours of the morning and immediately confronted the  other  male  occupant  of  the  house,  accusing him  of having a relationship with the murder victim.  When this allegation was denied, you proceeded to punch him in the head a number of times with a closed fist resulting in bruising to his face and head.   He managed to escape but, in doing so, ran over broken glass causing a number of deep lacerations to the soles of his feet.

[6]      You then confronted the murder victim, dragging her out of bed and taking her to another area of the house.  You accused her of having a relationship with the other male, an allegation she strongly denied.   Thereafter you subjected her to a prolonged and brutal assault which ultimately led to her death.   You obtained a sawn-off  shotgun  from  inside  the  house  and  struck  the  victim  numerous  blows mainly to her head and shoulders but also to other parts of her body.   During the course of this sustained attack, you dragged her from room to room, sometimes by the hair.

[7]      The three women in the house and their young children were awoken by the incident but you continued to assault the victim in their presence making comments to them which showed clearly you knew exactly what you were doing.   You told them not to leave the house otherwise they would come to harm themselves.

[8]      The beating continued for some 90 minutes with countless numbers of blows being struck to the victim’s body.  The victim was unable to get away and pleaded with you to stop the attack.  Despite that, you continued beating her using not only the barrel but also, it seems, the butt of the sawn-off shotgun.  As well, you punched her, kneed her and kicked her in the head and upper body.  There is some evidence that you used some sort of knife or other sharp instrument on her as well.  That is not accepted by you and is not material to my decision.  At the end of the attack, you left the victim lying on her bed to die.  This was a particularly callous feature of your behaviour that evening.  The pathologist’s opinion is that the victim survived for at least four hours after the attack, probably in a concussed state.  The principal cause of death were fractures to her skull but she also sustained a collapsed lung.

[9]      During the course of this vicious assault, blood was spattered on the walls and surfaces of the house in a number of rooms and on the outside balcony. Afterwards you tried to clean up the blood and changed the clothing worn by both yourself and the victim.

[10]     You then returned to speak to the three young women in the presence of the children.  You presented the sawn off shotgun at each of them individually, telling

them they saw nothing.  These threats were repeated on a number of occasions.  Two of the young women then made their escape but one remained.

[11]     You then contacted your sister who came to the address.   You showed her what you had done to the victim and then forced your sister to help you in cleaning up the scene.  You continued to maintain control over your sister and the third young woman throughout the day until the third young woman managed to escape about the middle of the afternoon and contacted the police.   When the police arrived, they established that the victim was dead.  Her body was found lying on the bed in the bedroom where you had left her.  For reasons not clearly explained, you had placed a bone carving around her neck as well as a ring on her finger.

[12]     Over the next ten days you went on the run managing to evade the police with assistance from friends and family in the Northland and Auckland regions. You went to Auckland where you converted a BMW motor vehicle and on 3rd September (a week after the murder) you met up with your former partner Ms Everitt in the Auckland area.  She accompanied you over the ensuing days during a crime spree which commenced in the Warkworth area and continued into the Northland region.

During  the  course  of  your  exploits  together,  you  broke  into  a  vehicle  near

Warkworth stealing camping equipment, cash and other items to a total value of

$4000.  You travelled north eventually reaching Russell where you stayed at Long Beach on the nights of 3rd  and 4th  September.   The following day the two of you went to a service station at Russell in the BMW vehicle.  Ms Everitt entered the shop to pay for petrol but was recognised by a member of the public who reported the matter to the police.  The vehicle was then driven off at high speed, there was a short vehicle chase by the police but you managed to avoid capture at that stage.  Shortly afterwards the BMW crashed into heavy bush.  You escaped and tramped through bush to the coast at Taupiri Bay.  There, you broke into a bach taking various items.

Using a stolen dingy you took to the water but ran aground near Whananaki and were finally captured after an intensive police search at Otamuri Bay in the early hours of the morning of 7 September.

[13]     When you were spoken to by the police you admitted the facts outlined, you said you had been using methamphetamine and alcohol and had blacked out.  You

said you could recall very little of what had happened  past the initial stages of the assault.

Pre-sentence Report

[14]     The pre-sentence report makes depressing reading.   You and  your father before you have been long time members of the Black Power gang.  You were raised in a family environment of violence as well as drug and alcohol abuse.  You have two children from a previous relationship but have little or no contact with them. Your abuse of alcohol and cannabis over a lengthy period has been well documented and you told the probation officer that about five years ago you began using methamphetamine daily.   You also told the probation officer that on the night in question you had been drinking beer and whisky, sniffing glue as well as indulging in the consumption of cannabis and methamphetamine.  Although you claim to have blacked out and recall little of what happened on the evening in question, the summary of facts makes it clear that you were conscious of what you were doing throughout the lengthy assault on the victim.

[15]     You have an extensive criminal history spanning some 14 years.  You have a number of convictions for dishonesty, escaping custody and a number for relatively low levels of violence including common assault, male assaults female, fighting in a public place and possession of weapons.  As you admitted to the probation officer, you have an obvious propensity for violence.

[16]     Of particular concern to the probation officer was your belief that you earn the respect of others through fear and intimidation.  You dispute this part of the pre- sentence report and in particular the use of the word “power”.   As the probation officer observed, you not only exercised power over the victim on the night in question but also over the captive audience of the other adults in the house and the children present.  The probation officer considers you presented as being remorseful for the effects of your offending but also noted you appear to have only limited insight into your own use of violence.   You have written to the Court and have apologised to the victim’s whanau for what you did.   The probation officer nevertheless concluded that you have a high risk of reoffending.

Victim Impact Statements

[17]     I have read  and carefully considered  all of the victim impact statements which have been provided.  The victim’s mother has been completely devastated by her loss.  She speaks of pride in her daughter’s successful completion of a course at the Burnham Military Camp in April last year and her deep concerns when she found that her daughter had formed a relationship with you.  She spoke to you and warned you not to hurt her daughter.  Plainly, you took no notice of her.  She also speaks with sadness that the victim’s younger sister no longer has an older sister to look up to. She has undergone counselling and continues to struggle with her grief.

[18]     The victim’s grandmother describes the victim as “a very bubbly cheeky kid” and her shock and horror on learning of her granddaughter’s death and on seeing the extent of the injuries you caused to her face and head.  Other family members have also spoken of their grief.

[19]     The three women also present in the house speak of the terror they felt while witnessing what went on in the house on the night of the murder.   The two with children feared for their lives and speak of the trauma they and their children have suffered as a result of these events.  One of the children has been acting out and both he, at the age of 4, and his mother are having to have counselling.  They continue to be fearful of you and are likely to be affected indefinitely by the ghastly events they were forced by you to witness and by the threats you made to them at the point of a gun.

Submissions

[20]     It  was  submitted  for  the  Crown  that  the  Court,  when  assessing  your culpability overall, should treat the offending which took place at the house and the subsequent offending while you were on the run from the police, as part of one overall incident.   That submission was made because a determinate sentence of imprisonment may not be imposed cumulatively on the indeterminate sentence of life imprisonment which is inevitable for the murder charge:  s 83(4) Sentencing Act.

[21]     The  Crown  submitted  this  was  a  case  where  the  Court  should  consider invoking s 104 Sentencing Act under which, in certain circumstances, the Court must impose a minimum period of imprisonment of at least 17 years unless satisfied it would be manifestly unjust to do so.  The Crown relies particularly on s 104(e) which applies where the murder is committed with a high level of brutality, cruelty, depravity or callousness.  The Crown also relies on s 104(g) which applies where the victim is particularly vulnerable because of her age, health or any other factor.

[22]     The  Crown  relies  on  the  following  circumstances:    the  duration  of  the beating;  the severity of the attack; the fact that at least one weapon was used; the extreme suffering of the victim prior to her death; the fact that much of the attack was carried out in the presence of three young women and their young children; the callous comments you made during the course of the incident; the assault on the other male occupant of the house; and your intimidation of the three young women with the sawn off shotgun.

[23]     The Crown also submitted that any reduction in sentence for your confession to the police and early guilty plea should be minimal given the case against you was very  strong.    In  particular,  you  carried  out  this  murder  in  front  of  four  adult witnesses.  On that basis, the Crown says a conviction was inevitable.

[24]     Mr Fairley has said on your behalf everything that could properly be said.  He accepts of course that a term of life imprisonment must be imposed and that the only question is the length of your minimum term of imprisonment.  In that respect, Mr Fairley accepts that a minimum term of imprisonment in excess of 10 years should be imposed under s 103 of the Act and he also accepts that s 104(e) of the Act is applicable.  He does not however accept that s 104(g) is applicable.

[25]     But  Mr  Fairly  submits  that  it  would  be  manifestly  unjust  to  impose  a minimum period of imprisonment of 17 years or more having regard to the range of sentences for this type of murder.  He has submitted that the level of brutality is the only  factor  which  would  justify  s  104  being  invoked  and  stresses  your  full confession to the police and your early guilty plea which he said was signalled to the Crown at a very early stage prior to your actual plea at depositions.  He submitted

that these factors were signposts of your remorse.  As to your previous convictions, Mr Fairley pointed out there are relatively few for violent offending and that none of them were at a particularly high level of seriousness.

Assessment

[26]     In approaching your sentencing Mr Fenton, the starting point is to consider the purposes of sentencing:  s 7 Sentencing Act.  The relevant purposes in your case include holding you accountable for the harm done to the victim and the community by your offending, promoting a sense of responsibility in you for the harm you have caused, denouncing your conduct, deterring you and others from committing the same or a similar offence and finally, protecting the community.  Assistance in your rehabilitation becomes secondary for a crime as serious as this.   Undoubtedly however, you will have an opportunity while you are in prison to take advantage of whatever courses may be offered to you to try to turn your life around as you say you want to do.

[27]     I am also required to have regard to the principles of sentencing and all relevant aggravating and mitigating factors:   ss 8 and 9 of the Act.   For murder sentences, particular provisions apply.   Both counsel have properly accepted that s 104 Sentencing Act applies to your case.  I agree with the assessment of counsel that there was, in this case, a high level of brutality.  As well, I accept that there was also a high level of cruelty and callousness on your part.   Fuelled by alcohol and drugs, you engaged in a brutal and sustained attack on the victim over a period of some 90 minutes involving at least one weapon.   I have viewed the photographs which graphically indicate the extent of your violence on the victim aimed not only at her face and head but also at many other parts of her body.  She was a defenceless and innocent 17 year old who was pleading with you to spare her life.  You took no notice of her pleas but continued  your attack.   The fact that you did so in the presence of four other adults in the household and that at least some of the events were  witnessed  by  young  children  is  a  seriously  aggravating  factor.     Your callousness is demonstrated not only by the remarks you made during the course of

the attack but also by your leaving the victim to die over a four hour period in a state of concussion.

[28]     Reviewing these acts on your part, I am satisfied that s 104(e) applies in this case.   The facts also come close, but not quite, to satisfying s 104(g).  The case is one which involves a level of culpability significantly in excess of what might be considered the standard range of murders and s 104 is properly invoked in your case. A sentence of not less than 17 years is prima facie justifiable.  The consequence is that I must impose  a period of imprisonment of 17 years or more unless it would be manifestly unjust to do so.

[29]     In making this assessment, I have had regard to the leading Court of Appeal authority in R v Williams [2005] 2 NZLR 506 and a number of comparable cases to which counsel have referred. In approaching the issue of manifest injustice, I am entitled to have regard to your other offending which I have not taken into account in the first stage of the assessment. If I had taken those other offences into account at the first stage, a minimum period of imprisonment of more than 17 years would be justified. In addition to the murder, you committed a serious assault with intent to injure on the male adult in the house causing significant bruising and further injury as he ran away fearing a further attack. And, you intimidated the three adult females in the house thereafter; and you were on the run from the police for some 10 days during the course of which you converted the BMW motor vehicle and stole other property. You also caused the police to commit substantial resources to your capture and you were undoubtedly a threat to public safety during that period. These factors suggest some uplift on the 17 years but any mitigating factors must also be considered.

[30]     There are no mitigating factors relating to the offending itself but you are entitled to some credit for your plea of guilty which was offered at an early stage. However, I accept the Crown’s submission that you were merely bowing to the inevitable and any credit for your confession to the police and your guilty plea must be seen in that light.  It is not a case where you can legitimately expect a substantial credit for your guilty plea.  I accept that you are indicating some level of remorse but that must be tempered with the probation officer’s observation that you have little

insight into your use of violence and the effects of that.  The effects on the family of the murder victim are severe and their grief will never be overcome.  Serious trauma has also been caused to the others in the house including very young children.

[31]     Sentencing in cases where a death has occurred is always difficult because no sentence the Court can impose will ever restore the victim to life.   You have senselessly taken the life of an innocent young woman and the community expects you to be punished for that.   I must also take into account that there is in New Zealand an unfortunate climate of serious domestic violence in a number areas of the country.   The community is entitled to expect that a deterrent sentence will be imposed which reflects the severity of your offending and will give adequate protection from violent offending.  However, I am also required to give some weight to your ultimate rehabilitation and not to impose a sentence which will quash all hope in that respect.

[32]     In the circumstances of this case, I do not consider it would be manifestly unjust to impose a minimum sentence of 17  years  or  more.    Balancing  all  the aggravating and mitigating factors, you will be sentenced to life imprisonment for the murder charge with a minimum period of imprisonment of 17  years.    It  is important both for you and the public to understand that this does not mean you will be automatically released after a period of 17 years.  It means only that you will be eligible for release at that time.  Whether you will be released then or detained for a further period will depend on the decision of the Parole Board to be made in due course and on your progress in rehabilitation during this lengthy period in custody.

[33]   On the remaining charges you are sentenced to concurrent terms of imprisonment as follows:

a)        Assault with intent to injure – 12 months.

b)       Presenting a firearm (3 charges) – two months each. c)           Conversion of a motor vehicle – 12 months.

d)       Theft – 12 months.

A P Randerson, J Chief High Court Judge