R v Ford

[2020] NZHC 2579

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

2019-063-2735

[2020] NZHC 2579

THE QUEEN

v

WIRELESS FORD

Hearing:	1 October 2020
Counsel:	A J Gordon for Crown W Lawson for Defendant
Sentence:	1 October 2020

SENTENCE OF PAUL DAVISON J

Solicitors:

Crown Solicitor, Rotorua

R v FORD [2020] NZHC 2579 [1 October 2020]

[1]                 Mr Ford, you appear today for sentence having previously pleaded guilty to one charge of murder.

[2]                 On 22 August 2019 with a murderous intent you attacked and killed your father-in-law, Mr Korekore Putai, with a series of at least 11 violent blows to his head with a detached chainsaw bar. These repeated and brutal blows were inflicted with considerable force and caused scalp lacerations and extensive fracturing to Mr Putai’s skull and the base of his skull. The fractured bone lacerated the underlying brain including vital areas of his mid-brain and brain stem. These non-survivable brain injuries resulted in Mr Putai’s rapid death.

[3]                 In sentencing you, I will first summarise the background and circumstances of your offending and the contents of the victim impact statements, before turning to address your personal circumstances. I will then refer to the purposes and principles of sentencing and explain the approach I am required to take in sentencing you for the offence of murder. I will then summarise the submissions made by the Crown and by your counsel as regards the sentence they submit should be imposed. Finally, I will outline the sentence I will impose. As part of this, I shall determine whether it would be manifestly unjust to impose a sentence of life imprisonment with a minimum period of imprisonment of at least 17 years without parole.

Facts

[4]                 In  the period prior to Mr  Putai’s death you were living in Tokoroa  with    Mr Putai and his partner, Ms Winikerei. You had previously been in a long-term, somewhat on-and-off relationship with Mr Putai’s daughter Cheval Tautari, and together with her you have five children, aged between 12 months and eight years. Although you were separated from Ms Tautari in August last year you continued to reside at Mr Putai’s house. You were also working for Mr Putai as one of his employees doing spraying and fencing work for a number of farms in the area.

[5]                 On 22 August 2019,  it  was  raining  heavily.  The  usual  routine  was  for Mr Putai’s workers to be picked up and to assemble at his place around 5.00am to discuss and plan the day’s work. Because of the heavy rain, it was decided that there

not going to be any work that day, but nevertheless a number of the work crew still gathered at Mr Putai’s address.

[6]                 When one of the worker’s arrived, they noticed that you were already drinking beer. Later in the morning, Ms Tautari also arrived at her father’s house. She assisted her father by preparing his business invoices and delivering them to the various farms, and that morning having prepared the invoices, she then left to deliver them. Other workers who had earlier assembled at the house also departed leaving only Mr Putai, his partner Ms Winikerei, and you present at the address.

[7]                 Around 1.15pm, Ms Winikerei left the house to go and get lunch for the three of you from a local takeaway shop. When she returned, the three of you started eating lunch together in the lounge.

[8]                 While eating your lunch, you received a telephone call from Ms Tautari. During the phone call you asked her where your cigarettes were. During this conversation you became angry with her, started to swear and called her a bitch and a liar. Mr Putai and Ms Winikerei tried to calm you down, but to no avail. While still on the phone to Ms Tautari, you walked out of the lounge into the kitchen and smashed a window. You then returned to the lounge and kicked one of the takeaway food boxes that was sitting on the floor. Although your kick was directed towards the takeaway box, your kick also hit Mr Putai’s arm.

[9]                 Ms Winikerei became increasingly concerned about your violent behaviour and at 1.55pm she used her cell phone to make a 111 call to the Police. Seeing this you grabbed her phone away from her and walked away with it. The 111 operator on the line could hear a male voice yelling and swearing, but no one spoke to her.

[10]              Ms Winikerei followed after you asking you for her phone back. Then without warning, you turned and punched her on the side of her head. It was a single punch, and not  very hard.  Ms Winikerei immediately  returned to the  lounge to  re-join  Mr Putai. By the time she returned to the lounge, Mr Putai had already used his phone to make a 111 call to the police himself, and when she entered the lounge, he handed

his phone to her. Ms Winikerei then took the phone and went into their bedroom, closed the door and spoke to the 111 operator.

[11]              After Ms Winikerei had left the lounge, you then turned your attention back to Mr Putai who was still seated on the couch, where he had been seated eating his lunch, and you started to shout at him. From the bedroom Ms Winikerei who was still on the phone to the police, could hear Mr Putai trying to calm you down. Ms Winikerei was relaying what she could hear to the 111 operator, and the operator herself could hear you swearing and yelling.

[12]              After several minutes, you picked up a detached chainsaw bar and began repeatedly hitting Mr Putai with it.  From the bedroom, Ms Winikerei could hear   Mr Putai screaming loudly. The 111 operator asked her to go out into the lounge and get Mr Putai and get him back into the bedroom with her. After Mr Putai had started screaming, 11 distinct blows were heard by the 111 operator.

[13]              Ms Winikerei went back into the lounge and saw Mr Putai seated on the couch with his head slumped on the arm of the couch. When she went over to him, she immediately saw that there was a lot of blood in front of him, some of which contained body tissue. She put her arms around him briefly, and she knew straight away that he was no longer alive.

[14]              When Ms Winikerei stood up she saw you quickly approaching her from the kitchen doorway. You then struck her with a very hard blow to the left side of her head. Fortunately, at that point, a police officer arrived and you were arrested.

Victim Impact Statement

[15]              Victim impact statements have been  provided  by  Ms  Winikerei  and  by  Ms Jamie Tautari.

[16]              In her victim impact statement Ms Winikerei says that she felt scared, and that there is “no doubt in [her] mind” that she would have been killed, and the children she shared with Mr Putai could also have been killed if they had been at the house at that time. She says that what happened is still in her head, and it affects her at night. She

says she struggles to sleep. She said that it haunts her, particularly having seen “all the blood, the skull tissues and fragments”. Ms Winikerei is now trying to rebuild her life, and provide the best support she can for her and Mr Putai’s children.

[17]              Ms Jamie Tautari has explained her sense of loss and regret that she was unable to protect her father. She describes her father as being someone who was proud of his family and always supported them through ups and downs and always made sure that everyone was looked after before himself. She says without her father, everything is hard now, and every day she has flash backs to the day of his death and the circumstances. She says that you took her father away from her and she does not understand how you could take an innocent person away from her and her family.

Pre-sentence report & Dr Barry-Walsh (Forensic Psychiatrist) report

[18]              The pre-sentence report provides a summary of your background. You are now 30 years old. You were born and spent your early years in the Cook Islands. You moved to New Zealand from the Cook Islands with your mother and two sisters when you were around 12 or 13 years old. English is a second language for you, and you say that you do not have a good understanding of English. You nevertheless remained in the New Zealand schooling system until Year 13 and you gained several level I and level 2 credits. You told the author of the pre-sentence report and also Dr Barry-Walsh, a forensic psychiatrist who has interviewed you and provided a report, that as a child in the Cook Islands you were frequently punished and beaten by adults including by some of your teachers. You told the pre-sentence report writer that you do not consider yourself to be a violent person, but I note that you also told Dr Barry-Walsh that you have been in a lot of fights over the years.

[19]              You had several different connections with Mr Putai. As I have said you worked full time for him doing farm fencing and spraying. You had also been in a relationship with his daughter for almost ten years, and you have with her five children, ranging from just now one year and eight years old. Although you were separated at the time of offending, the report writer notes that you nevertheless maintained a good relationship, and as I have also said you were living with Mr Putai and Ms Winikerei in their house at the time of the offending.

[20]              The pre-sentence report writer and your counsel both note that you do not dispute the Crown Summary of Facts. Although you presented to Dr Barry-Walsh as being remorseful for Mr Putai’s death, to the author of the pre-sentence report it appeared that you displayed no emotion about the impact of your offending on      Mr Putai’s partner, or your children. Although you say that you feel bad about what happened, you do not appear to show any insightful remorse for your offending. I do of course acknowledge that you have prepared a letter which has been handed to me this afternoon and which I have read carefully in which you have expressed your remorse and explained that your time on remand has given you an opportunity to think about what you have done and the impact of it and you have said in your letter that you make a commitment to improve yourself and to try and do what you can for your family and that you are truly sorry for what you have done and it is appropriate that that be properly acknowledged.

[21]              You told the pre-sentence report writer that on the day of the murder you were heavily intoxicated and became angry at Mr Putai. Referring to Mr Putai you said: “he was the one that started it, if he had just kept his mouth shut, I wouldn’t have attacked him”. You said that you were both in different gangs, and that Mr Putai used to say that he was going to kill you when he was drunk.

[22]              It is apparent that you have a fairly long-standing problem with substance abuse. You say that you frequently consume alcohol, and that this was one of the substances that you had been using at the time of your offending. According to assessments undertaken by the Department of Corrections, you also exhibit a high-risk pattern of drug abuse. Your report refers to you consuming synthetic drugs, and you report consuming such drugs, on a daily basis, and using methamphetamine up to three or four times a week at various stages. You say that you have been doing this since around 2017.

[23]              You also have a tendency to use violence. When asked by the pre-sentence report writer about why you did not step back and stop attacking the victim, you said that you “just couldn’t control my anger, it wasn’t till my missus came running in screaming, that’s when I stopped”. You have a criminal offence history that includes convictions for family violence and threatening to kill.

Section 27 Report

[24]              A section 27 cultural report examining your cultural and family background has been prepared by Ms Ke’ala Campton Baker and has been provided to the Court by your counsel Mr Lawson. This report identifies aspects of your life and background experiences that have had a significant impact on your life and social disconnection, and which are said to have a causal connection to your offending.

[25]              The s 27 report begins by reviewing your childhood and upbringing. It notes that you were born in the Cook Islands and moved to New Zealand when you were 12 - 13 years old. It notes that you report having been sexually abused and physically abused as a child. You never got to know your father, but when you moved to New Zealand, you lived with your mother who was at the time on an Invalid/Disability Benefit and unable to work. Home life was unstable; you say you lived in a household with eight others, and you remember hearing your mother being beaten at home by her older brother. Ms Baker notes that you are now not connected to your family in the Cook Islands.

[26]              When you moved to New Zealand, you could not understand English at all well, and this meant it was difficult for you to engage fully at school. But you nevertheless persisted, stayed at high school, and left in Year 13 after completing NCEA levels 1 and 2 in some subjects.

[27]              As you got older, you started abusing substances. This mainly began after you had left high school and when you started working in forestry. The author of the s 27 report suggests investigating whether you have cognitive or mental issues, given that you report hearing voices and seeing ghosts, although no definitive finding was made by that author. You report experiencing some paranoia when you get high, and say that at the time of the offending you had taken alcohol, some synthetic cannabis, and “P” (methamphetamine).

Purposes and principles of sentencing

[28]              Mr Ford, in fixing a minimum period of imprisonment, and imposing sentence upon you today, I must have regard to the relevant purposes and principles of

sentencing. The purposes for which I sentence you today, Mr Ford, are to hold you accountable for the harm you have caused by your offending, to promote in you a sense of responsibility for that harm, to denounce and to deter your conduct, and to protect the community from you.1

[29]              In sentencing you, I must also have regard to sentencing levels in similar cases, and the need to take account of the gravity of the offending in this particular case, including the degree of your culpability and the general desirability of imposing a sentence that is consistent with sentences imposed on offenders committing the offence of murder in similar circumstances.2 I must also take into account any circumstances personal to you that would mean a sentence that is otherwise appropriate is disproportionately severe in your case.3

[30]              While murder is offending of a very serious kind, I have to bear in mind that I should not impose a sentence upon you that is crushing, and that as far as possible within the limited discretion that I have, the Court is required to impose a sentence that will assist in your rehabilitation and eventual re-integration into society.

Sentencing Approach

[31]I turn now to the sentencing approach I must follow.

[32]              The law provides that a person convicted of murder must be sentenced to life imprisonment unless it would be manifestly unjust to do so.4 The presumption of a sentence of life imprisonment for murder reflects the sanctity accorded to human life by our society, and our community’s abhorrence of the crime of murder. 5

[33]           Realistically, your counsel does not suggest that a sentence of life imprisonment would be manifestly unjust in this case. Indeed, this is not one of the exceptional cases where it would be manifestly unjust to impose the life sentence

1      Sentencing Act 2002, ss7(1)(a),(b),(e), (f) and (g).

2      Sections 8(a) and (e).

3      Section 8(h).

4      Section 102.

5      R v Williams [2005] 2 NZLR 506 (CA) at [57].

presumed for murder offending. I am accordingly obliged to impose on you a sentence of life imprisonment.

[34]              A sentence of life imprisonment means you must remain in prison throughout the remainder of your life, unless and until the Parole Board releases you into the community on parole. If you are granted parole, you may only remain in the community so long as you comply with your parole conditions and do not re-offend. You will always remain liable to be recalled to prison to complete your sentence.

[35]              The next question then is what the minimum period of imprisonment should be. This is the minimum term you must serve before you become eligible to apply for parole.6 Ordinarily, the minimum term of imprisonment for murder must be not less than 10 years. But if the Court is satisfied that the specified circumstances of the murder are exceptional by reference to what Parliament has classified as the most serious kinds of murder, then I must impose a minimum non-parole period of 17 years or more, unless it would be manifestly unjust to do so.7 The specified circumstances which require a murder to be treated as being more serious and requiring the imposition of a 17 year non-parole period are set out in s 104 of the Sentencing Act.

Summary of Submissions for the Crown

[36]              Ms Gordon, for the Crown, submits that s 104(1)(e) of the Sentencing Act applies, and a Minimum Period of Imprisonment (MPI) of 17 years should be adopted. She submits that this was a particularly brutal, cruel, depraved or callous murder. That is because this was a frenzied and savage attack, involving the use of a weapon and multiple blows to Mr Putai’s head without warning and without provocation, involving the use of a weapon that was capable of causing significant injury. In the event that the Court is not satisfied that the s 140 threshold is met, Ms Gordon submits that an MPI of at least 16 years would be appropriate.

[37]              The Crown nevertheless further submits that the imposition of an MPI of 17 years would be manifestly unjust in your case. That is because of the combination of

6      Sentencing Act 2002, s 103.

7      Sentencing Act 2002, s 104.

personal factors outlined in the reports before the Court, namely the pre-sentence report,  the  s  27  report  prepared  by  Ms  Baker,  Dr  Barry-Walsh’s  report  and  Dr Eggleston’s report and because of the entry of a guilty plea. The Crown submits that on account of those personal factors and your guilty plea the 17 year MPI should be reduced by a discount of around two years.

Submissions for counsel for Defence

[38]              Your counsel Mr Lawson submits that the s 104 threshold is not met in your case because the only aggravating feature of your offending is the actual violence and use of a weapon. Mr Lawson says that all murders involve a degree of brutality, cruelty, depravity or callousness, but in this case s 104(1)(e) is not engaged as the offending does not reach the “high level” of brutality, cruelty, depravity, or callousness necessary to engage s 104.

[39]              Mr Lawson says that the nature of the attack should be seen as involving four blows to the head of Mr Putai and he submits that that is the reliable evidence that the Court should proceed on and apply in determining whether s 104 is to apply.

[40]              Mr Lawson further submits that the level of violence in this case is similar to that seen in the cases of Pomare and Finlay, which were also cases involving multiple blows to the head with a weapon. Mr Lawson points to the very low degree of premeditation, and the fact that the offending can best be described as being a sudden and intense fit of rage, and upon that basis he founds his submission that the appropriate MPI to be imposed here should be around 12 to 13 years’ imprisonment.

[41]              Mr Lawson further submits that a substantial discount is appropriate to reflect factors personal to you, which he says contributed to the occurrence of the offending. These aspects of your background and the disadvantages you have experienced throughout your life referred to in the s 27 report, which the author highlights, he says disconnect you with your Cook Islands heritage, the fact you do not know your father, or never knew your father, the physical abuse you suffered as a child, and the fact that you moved to New Zealand at between 12 and 13 years of age with no English and limited education.

[42]              Applying those factors, and your remorse, Mr Lawson submits that an MPI of 11 years ought to be the final figure that would be appropriately imposed in your case.

Is the s 104 threshold met?

[43]              All murders involve brutality, cruelty, depravity or callousness to a certain degree. However, to reach the s 104(1)(e) threshold, those factors must be found to be present to a high level.

[44]              There is no suggestion here that the attack on Mr Putai was premeditated to any extent and, I agree with the Crown however, that once commenced it became a frenzied and brutal attack. You used a chainsaw bar as a weapon and delivered at least 11 blows to Mr Putai’s head. The substantial and violent force of the blows you struck and which hit him fractured his victim’s skull and lacerated his brain tissue.

[45]              The force of the impacts caused one side of his skull to effectively cave in, and Ms Winikerei says that when she went into the lounge and saw him on the couch she saw his blood, skull tissue and fragments splattered across the sofa, such was the force of the blows you inflicted upon him.

[46]              What makes this attack especially brutal, in my view, was the fact it involved repeated blows to the head of a defenceless victim. When initially attacked Mr Putai was still sitting on the sofa, having just eaten lunch, and he had just used his phone to phone the Police after you started acting violently towards Ms Winikerei. What then followed was an unprovoked and extremely violent and sustained attack that was maintained until he was killed. The injuries to his body suggested he initially tried to defend himself, but was unable to prevent being struck on the head. After being struck with one or two violent blows he would thereafter have been unable to defend himself further and despite being rendered defenceless by your attack, you continued to strike him with violent blow after violent blow with such force as to cause extensive fracturing to the left side and base of his skull. The sharp edges of the chainsaw bar also caused lacerations to his scalp and profuse bleeding. The injuries were extensive.

[47]              In my view an attack of that nature and duration means the murder was committed with a high level of brutality. The attack was clearly extremely violent, savage, and exceptionally brutal. I accordingly find that the s 104(1)(e) criteria are met, with the consequence that the presumptive sentence is a life sentence with a minimum period of imprisonment of at least 17 years.

[48]              I consider the offending here to be similar in terms of the level of brutality to the offending in Pomare, Marinovich, and also Findlay8 in which the Court found that s 104 was engaged.

Would a s 17 year MPI be manifestly unjust?

[49]              The next issue is whether it would be manifestly unjust to impose a life sentence with a minimum period of imprisonment of at least 17 years upon you. This question will be informed by an assessment of the degree of culpability of the offending in the present case by comparison to the offending in the standard range of murders. It is a discretionary assessment that requires me to consider whether your case falls outside the legislative policy that in general, the presence of one or more of the s 104 factors means that the murder is so sufficiently serious that it warrants at least a 17 year minimum period of imprisonment.9

[50]              A minimum period of 17 years’ imprisonment, where otherwise appropriate, is not to be departed from lightly. The proper approach to this question was explained by McGrath J in Williams in these terms:10

We conclude that a minimum term of 17 years will be manifestly unjust where the Judge decides as a matter of overall impression that the case falls outside the scope of the legislative policy that murders with specified features are sufficiently serious to justify at least that term. That conclusion cab be reached only if the circumstances of the offence and the offender are such that the case does not fall within the band of culpability of a qualifying murder. In that sense they will be exceptional but such cases need not be rare. As well, the conclusion may be reached only on the basis of clearly demonstrable factors that withstand objective scrutiny. Judges must guard against allowing discounts based on favourable subjective views of the case. The sentencing discretion of Judges is limited in that respect.

8      R v Pomare [2016] NZHC 1346 at [41] –[44]; R v Marinovich [2020] NZHC 1160 at [32]- [36];

R v Findlay [2017] NZHC 2551 at [35].

9      Malik v R [2015] NZCA 597 at [32]; R v Williams [2005] 2 NZLR 506 (CA) at [67].

10     R v Williams at [67]

[51]              There is some agreement between the Crown and defence in this case in respect of this point. They both say that an MPI of 17 years in your case would be manifestly unjust, and both also agree that your previous convictions, which are for comparatively minor offending, do not justify any uplift being imposed or applied. However they disagree on the degree to which your overall culpability and personal circumstances should reduce the MPI that should otherwise be imposed. The Crown submit that an MPI of 15 years should be imposed; your counsel suggests that an MPI of 11 - 12 years should be imposed.

[52]              The first question concerns your personal circumstances. These were detailed in the reports that I have already referred to including the s 27 report prepared  by  Ms Baker, the report by Dr Barry-Walsh, the Psychiatrist, the report by Clinical Psychologist Dr Erin Eggleston, who is also a Neuropsychologist, and also the pre-sentence report. There are clearly consistent themes expressed throughout these reports.

[53]              They all note you report experiencing a troubled upbringing. They say that you experienced physical, and sexual abuse as a child in the Cook Islands, before moving to New Zealand when you were 12 - 13. They all talk about the fact that you arrived here with little English and that you went to school and struggled at school as a result. The s 27 report goes into details about life when you came to New Zealand, about how you lived in a crowded four bedroom home, saw your mother get beaten up, and initially found learning in New Zealand schools very difficult. Your poor English comprehension is a theme that is set out and referred to throughout the reports, with Dr Eggleston’s observing that although you could communicate with her easily and had clear speech, your verbal comprehension was in the “very low to extremely low range”. Dr Eggleston concluded that it is your poor level of verbal functioning and limited language that is most likely due to an underlying cognitive weakness, and is possibly compounded by English not being your first language, but not caused by that.

[54]              Another clear theme in the reports is your history of substance abuse, including methamphetamine, synthetic cannabinoids and alcohol. This substance abuse has had a significant effect on you, and is linked with your mental health. Dr Eggleston’s

report, for example, goes into detail over the effects of these drugs on your decision-making. Your partner said that when you took drugs, you would “do stuff [you] didn’t know [you] were doing”. You have told her you believe in ghosts and sometimes hear voices. She also says that once your father died, you started increasing your drug-intake. Dr Barry-Walsh says that he considers that your belief in ghosts is most likely due to your substance abuse. However, he does say that your offending was likely linked to the fact you were, at the time, heavily intoxicated with a combination of alcohol and synthetic cannabinoids, and sleep deprived. He also commented in his report that he could find no evidence of active psychiatric illness when he interviewed you, nor of any psychiatric illness active at the time of the offending.

[55]              Another theme that arises from the reports is the impact of the assaults you have suffered on your decision-making and mental stability. As a child, you say you were given “a lot of hidings”, although mostly not to your head. Dr Barry-Walsh, however, goes into some detail around assaults from 2018 where you were the victim. From these two assaults, where in the first one you were punched and kicked to the ground and received head injuries, Dr Eggleston goes into some detail and concludes that you do suffer from a “mild traumatic brain injury”. After carrying out a number of tests, Dr Eggleston concluded that you have an “unusual cognitive profile that does not fit well with brain injury as a primary causation”.

[56]              Your counsel submits that a discount should be given for your mental health. It is well-established that a defendant’s mental health may reduce their moral culpability.11 That has been applied, for example, in cases where a defendant has Autism Spectrum Disorder which affects their decision-making,

[57]              However, I do not think there is sufficient evidence of mental illness such as would have played a part in your offending. The reports are in some disagreement about whether you suffer from mental illness. Dr Eggleston says she had no concerns about your mental health, and she found no evidence of disturbance of thought content

11     R v Gottermeyer [2014] NZSC 115 at [86].

perception, mood or anxiety. The main agreement is it seems in relation to your substance abuse, and your complex cognitive profile.

[58]              In terms of your substance abuse, while this forms the background for your offending, it also cannot be a mitigating feature, although the reports are in some agreement that it was probably a main driver of your offending. It is clear you were heavily intoxicated on the day of the offending, and are a heavy user of alcohol, cannabis and more generally at times methamphetamine. This would undoubtedly have impacted your decision-making when you offended. And the fact that you abuse substances is clearly related to your troubled upbringing and the challenges you have faced since your family moved from the Cook Islands to New Zealand. However, although it might explain your offending, I do not consider that it reduces your level of culpability. Substance abuse cannot be a mitigating factor itself, and the evidence does not, in my view, indicate that you suffer from the sort of mental illnesses or impairments which have led to reductions in MPIs in other cases. The main driver of your offending was substance abuse, not your mental state or any mental impairment.

[59]              However, I accept that there are still some mitigating factors which indicate a 17 year MPI would be manifestly unjust in your case. This conclusion is also driven by reference to cases where the offending is similar, although all cases must be considered on a fact-specific basis.

[60]              First, while I do not accept your counsel’s submission that your mental illness reduces your culpability, there is evidence that your personal circumstances do reduce your culpability somewhat. The report writers conclude you have a complex cognitive profile. Your education, limited grasp of English, the challenges you faced growing up, and your chronic poly-substance abuse all likely had significant impacts on your intellectual and social development. This has impacted upon your decision-making, particularly your ability to control outbursts of anger and your general comprehension abilities and that does justify some discount being allowed.

[61]                  Second, you pleaded guilty once the issue of a possible insanity defence had been excluded. In addition, there is some evidence of your remorse, and it may be an increasing and developing sense of remorse as evidenced by the letter presented to the

Court by your counsel this afternoon. Certainly you expressed remorse in your interview with Dr Barry-Walsh and the s 27 report recognises that there was some remorse being expressed then too.

[62]              Overall, based on these factors and, particularly your background, I agree with both counsel that an MPI of 17 years would be manifestly unjust in your case. Furthermore under a “normal sentencing” exercise, these are matters that would usually justify a lower MPI being imposed. This conclusion is supported by comparison to other cases where an MPI of 17 years has been upheld. In general terms the offending in those cases was more serious than I find your offending to be. For example:

(a)Vea:12 there was premeditation; the victim was ambushed and attacked with a machete – a much more serious weapon than a chainsaw. The offender watched and the blood pool around the victim expanded, and he did nothing to help, and remained calm following the attack. In that case an MPI of 17 years was upheld.

(b)Carroll:13 This involved  a  pre-meditated  attack  with  a  weapon.  Mr Carrol travelled to the victim’s address intending to assault him. He did so by what the trial Judge described as a determined attack to the back of the victim’s head, striking blows in a grouping which demonstrated a succession of blows – up to six times. The offender then took the body of the deceased and tried to hide it. In that case the offender used a tyre iron as his weapon. An MPI of 17 years was imposed, and upheld on appeal. That murder was more callous and of course involved pre-meditation in distinction to yours.

[63]              Taking those matters into account I find that the imposition of a 17 year minimum period of imprisonment would be manifestly unjust in your case Mr Ford. I consider that the appropriate minimum period of imprisonment in your case Mr Ford, is 15 years. A 15 year minimum period of imprisonment means that you will not

12     R v Vea [2019] NZHC 1587

13     R v Carroll [2017] NZHC 2691.

become eligible for parole until you have served 15 years in prison. However, whether or not you are released on parole at that time is a matter to be determined by the Parole Board.

[64]Mr Ford please stand.

[65]              For the murder of Korekore Putai on 22 August 2019, I sentence you to life imprisonment. You are to serve a minimum term of imprisonment of 15 years before being eligible to apply for parole.

[66]You may stand down.

Paul Davison J