R v Gleeson

[2012] NZHC 705

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2012-009-001663 [2012] NZHC 705

REGINA

v

CHRISTOPHER GLENN GLEESON

Hearing:         17 April 2012

Counsel:         C J Lange and A Raj for Crown

C M Ruane for Prisoner

Judgment:      17 April 2012

SENTENCING REMARKS OF WHATA J

[1]      Christopher Glenn Gleeson you have pleaded guilty to one count of murder. [2]       The penalty for murder is life imprisonment.

Facts of offending

[3]      In sentencing you I regret that I must retell the events, but it is my duty to do so.

[4]      You do not dispute the police summary of facts.   On 6 January 2012 you visited the home of Kenneth  John  Moore,  the victim.   Around  lunch  time  you became involved in a disagreement with Mr Moore and as a result you left in order

to cool off. You walked to your home address about 8.4 kilometres away.

R V GLEESON HC CHCH CRI 2012-009-001663 [17 April 2012]

[5]      Later that day you decided to return to the address to hurt the victim and make him suffer, like you say he had made you suffer in the last year.  You planned to hit him around the head using a cricket bat.   You carried out your plan. You walked back to Mr Moore’s home carrying your cricket bat and arrived there about

9 pm.   After a short heated discussion you lifted the cricket bat and forcibly hit Mr Moore to the rear side of his head three times.  As a result he fell face forward onto the carpet where you hit him once more to the head.

[6]      Mr  Moore  was  seriously  injured,  bleeding  from  his  ear  and  mouth  and breathing heavily.  You then sat on the chair in the lounge for approximately half an hour before taking Mr Moore’s car and house keys and leaving the address in his vehicle.

[7]      You tried to use Mr Moore’s EFTPOS card and then returned to Mr Moore’s home where you accessed the internet using Mr Moore’s computer.   During the evening you then removed his 50 inch plasma television and the phone handset from the cordless phone, placing both in Mr Moore’s car. You drove to your home address where you removed the television and placed it in the lounge and then went to bed.

[8]      On the following morning you returned to Mr Moore’s address.  You went inside the house and found Mr Moore deceased in the same position he had been left in the night before.   You made a number of telephone calls, including to an auto business, looking for a car battery for a second vehicle at the address.   Later that morning you left in Mr Moore’s car and went to the Howzat Sports Centre.  You dumped the bloodied cricket bat, two car seat covers and the victim’s wallet, minus his EFTPOS card, in a rubbish skip.  You tried to use the EFTPOS card again and failed.  You then returned to your home address and you were picked up by a team member and you spent the afternoon playing cricket.  During the afternoon you told a number of team mates that your father was ill and was unlikely to survive the weekend.

[9]      After the cricket you drove to Mr Moore’s address and accessed the internet

again for about 14 minutes.

[10]     Later you went to the Pak and Save fuel on Moorhouse Avenue where you put petrol into Mr Moore’s car.  On Sunday morning you made a series of calls on Mr Moore’s cellphone attempting again to source a car battery.  You then drove to Wilsons Road where you parked Mr Moore’s car on the roadside and locked it.  You removed the battery and walked to Mr Moore’s address where you placed the battery in a second vehicle and drove this to another address and left it locked on the roadside.  You returned to Mr Moore’s address and ensured the house was secure then at about 11.43 am you phoned St John’s Ambulance claiming you had arrived at the address and could see your stepfather inside on the ground with blood around his head.

[11]     Mr Moore died from the multiple violent blunt force blows to the back and right side of his head. The injuries were not survivable.

[12]     When spoken to by the police you admitted killing Mr Moore.  You said that you had become so angry with the way he had been treating you over the last year or so, that you wanted to hurt him and make him suffer in the way that he had made you suffer.

Victim impact statements

[13]     I firstly want to acknowledge the brave way in which the victims have made their statements today.

[14]     Mr Moore was plainly a much loved sibling, father, grandfather, and recently great grandfather, and he was also an uncle in, by modern standards, a large family. Fourteen victim impact statements have been provided by various family members detailing their love for Mr Moore and the tremendous hurt that they have suffered as a consequence of his violent death.  Several of those statements were read in Court today.   I will not repeat in detail the statements that have been made.   They are testament, however, to the central role that Mr Moore played in the lives of his family, including his brothers and sisters, nieces and nephews, children and grandchildren, and as I say most recently a great grandchild.  It is no surprise at all that  his  family are deeply saddened  and  shocked  at  Mr Moore’s  death  and  the

circumstances of it.  There is much pain and anger, understandably directed towards you.  The pain and hurt is exacerbated by the fact that Mr Moore took you under his wing and nurtured you in your youth.   There is a great sense of loss not only of Mr Moore but of their relationship with you, illustrated by the confusion of one young grandchild who is struggling with the loss of Mr Moore and your betrayal.

[15]     There is, of course, great sadness expressed by children who have lost their father and by siblings who have lost a brother.

Your personal circumstances

[16]     I have had the benefit of a detailed pre-sentence report. You are a 25 year old European male.  Your initial connection to Mr Moore was through your mother, who had a long term relationship with Mr Moore.   Based on your account, and your mother’s account, your relationship with Mr Moore was a complex one.  It appears that as a child you got caught up in the relationship difficulties between Mr Moore and your mother.  This inevitably resulted in strain being placed on you in terms of your relationship with both of them.  You say that Mr Moore played “mind games” with both you and your mother and continued to do so until his death.  However, you acknowledge that Mr Moore fully supported you in your sporting pursuits referring to the fact that he gave you your “first cricket bat” at the age of two.  With this type of support you achieved significant success in the sporting arena.  You say that you played for the under 19 Canterbury cricket team at the age of 14, you played rugby for Canterbury at the age of 12, and soccer for Canterbury at the age of 13.  You also say that you played for the New Zealand under 19 cricket team and until remanded continued to play competitive cricket.

[17]     A manager of your cricket and soccer team speaks very highly of you.  She has known you for the past three years and describes you as “highly respectful, calm, kind and a brilliant sportsman”.  She was “absolutely shocked” at your offending and she states that her family and your sporting colleagues will stand by you irrespective of the outcome. You left Shirley Boys’ High School at the age of 17 having achieved NCEA level 2.  You were involved in the wholesale business for approximately nine years until you were dismissed from your then employment following charges of

theft being alleged against you.   Since then you have been on the unemployment benefit.   I have also read a letter from a member of your community expressing support for you.

[18]     You were also involved in a relationship for some seven and a half years until it dissolved completely in around July last year.

[19]     In terms of prior offending, you owe outstanding fines of about $1,000 of which about half are enforcement fees.

[20]     In terms of your current offending, you explained that Mr Moore accused you of stealing his EFTPOS card and asked you to leave.  This caused you to snap.  You remember walking back to your residence.  You claim that you just zoned out.  You say that all that you remember is the sound of the bat hitting Mr Moore.  You do not recall what you were doing. You just remember starting to shake.

[21]     You claim some interest in the TV, but admit that you should not have taken the car.

[22]     The report notes that in terms of the offending itself you presented with extreme victim empathy incorporating Mr Moore’s own children, the family and the community.  There has been no attempt to minimise or justify your offending and you take full responsibility for it.   I have also read your letter.  You express deep remorse at what you have done to Mr Moore, who was you say a father to you.

[23]     You have minor, and essentially irrelevant, convictions to date.

[24]     Your risk of reoffending has been assessed as moderate and risk of harm to the  community is  assessed  as  being  high,  in  view  of  the  nature  of  the  current conviction.  It appears that your offending has occurred in the context of a number of historical family and current family stressors, namely your mother’s rejection, the passing of your grandmother, the breakdown of the relationship with your partner and most recently the dispute with Mr Moore.  The report recommends a sentence of imprisonment.

Sentencing framework

[25]     Murder is a most serious, if not the most serious of crimes.  Various purposes and principles of sentencing under the Sentencing Act 2002 must be recognised.  In this case, the following are particularly relevant to my assessment:

(a)       Holding you accountable for the harm that you have done;

(b)       Promoting a sense of responsibility in you for your offending; (c)     I must denounce your conduct;

(d)      I must seek to deter you and others from committing similar offences.

[26]     I must also have regard to the gravity of your offending and your culpability, the seriousness of the offence in comparison to other offences, and the desirability of consistency in sentencing.  I must also have regard to any particular circumstances relevant  to  you  that  might  make  an  otherwise  appropriate  sentence disproportionately severe.

[27]     There are also special provisions under the Sentencing Act 2002 for murder. It begins with a presumption of life imprisonment.  That presumption is likely to be displaced only in exceptional cases.[1]   I think your defence counsel concedes that this is not one of those exceptional cases.

[1] R v Rapira [2003] 3 NZLR 794 (CA) at [121].

[28]     The next step is to ask whether the murder is sufficiently serious to trigger s 104 which requires a 17 year minimum term of imprisonment.  The Crown does not seek this.   I agree.   This is not one of those cases which attracts a 17 year minimum period of imprisonment. While all murder is brutal, and without doubt this was a brutal murder, it is not in that category of exceptional case that qualifies for a

17 year minimum sentence.[2]   Nevertheless, as I have said, this was a brutal murder,

and a ten year minimum period of imprisonment is required.

[2] R v McKee HC Christchurch CRI 2007-009-017060, 7 August 2008 at [12].

[29]     I must also consider whether a sentence of more than ten years is required to achieve the purposes of the Sentencing Act.[3]     My primary focus will be on the circumstances of your offending.[4]   I will take ss 8 and 9 into account as they relate to s 103(2).[5]

Submissions for the Crown

[3] R v Howse [2003] 3 NZLR 767 (CA).

[4] R v Brown [2002] 3 NZLR 670 (CA).

[5] R v Walsh (2005) 21 CRNZ 946 (CA) at [26].

[30]     The Crown seeks a starting point of 12 to 13 years imprisonment.  Relying on R v Hessell,[6] the Crown submits that the discount should apply only to the discretionary element (ie the additional period of two to three years).

[6] R v Hessell [2010] 2 NZLR 298 (CA) at [71]-[73]

[31]     The Crown lists what it says are aggravating features including:  the use of a weapon, attacking the head, the extent of harm (including to the victim’s family), vulnerability of the victim, premeditation, and subsequent callous behaviour.   The Crown says there are no mitigating factors or features relevant to you and refers to your prior offending (mainly driving offences).

[32]     In terms of mitigating factors, the Crown accepts that a discount of 20-25%

for your early guilty plea would be appropriate.

[33]     The Crown submits that there are similarities to the facts in R v Tait[7]  and

R v Brown[8] where starting points of 12 to 13 years were used.

Defence submissions

[7] R v Tait HC Tauranga CRI 2010-070-5571, 16 September 2011.

[8] R v Brown HC Wellington CRI 2010-032-1028, 9 May 2011.

[34]     Your counsel responds that:

(a)       The use of a weapon and attack to the head were parts of the elements of the offending and are not aggravating factors;

(b)He says that  you  were in a “fugue”  state rather than acting in a preplanned way;

(c)       Your failure to intervene was not an aggravating feature;

(d)Your  prior  offending  was  minor  and  not  relevant  to  the  current offending;

(e)      Mitigating features include your guilty plea and the context including difficulties between yourself, your mother, and Mr Moore, and more recently your difficult personal circumstances, including loss of employment and collapsing of a long term relationship.

[35]     In all of those circumstances, the offending, it is said by your counsel, does not trigger more than the ten year minimum sentence.

My assessment

[36]     As I have said the minimum starting point is ten years.  I consider that there are two key factors that take the starting point for sentence for  your offending beyond that minimum.

[37]     First, the degree of premeditation and your determination to carry out the murder was substantial.  This is not a case of a sudden burst of anger or violence. You walked for 8.4 kilometres back to your address.  You grabbed a cricket bat and then walked a further 8.4 kilometres back to Mr Moore’s home.  Whatever the cause of your anger, it fuelled a plan of action that you executed over the span of hours. As a skilled and accomplished cricketer I have no doubt that you knew exactly how to use a cricket bat with telling and shocking effect.  Given the level of cricket that you were playing at the time of the murder, I can also fairly assume that you were using a bat of significant weight and composition.  The fact that you struck Mr Moore four times shows a high degree of determination to carry out a violent act with obvious and horrible consequences for Mr Moore.

[38]     The  second  factor  I  take  into  account  is  the  callous  way  you  treated Mr Moore during and following his murder.   Your counsel says that you were in some type of “fugue” state.  You say you do not recall exactly what happened.  No medical evidence has been produced as to exactly what type of state you were in or could have been in.  But the facts are plainly demonstrative of a callous disregard for Mr Moore and his well being well into the day following the murder.  Indeed, even if you were in a “fugue” state at the time you struck Mr Moore, it does not in my view reasonably explain your conduct through to Sunday morning.

[39]     In forming the view that these are aggravating features, I have considered the cases cited to me by counsel, including Tait and Brown.   I have also considered R v Tuwhangai[9]  and R v Hamiora.[10]    In Tuwhangai a stabbing immediately after a prior physical confrontation was not sufficient to result in a term longer than ten years.    By  comparison  in  Hamiora  an  attack  with  a  baseball  bat  and  a  knife committed with an associate against the victim was deemed to warrant a 13.5 year minimum starting point.   I have also referred to the case of R v Brown where the Court imposed a minimum of 13 years for a murder of a victim while asleep, then

dumping of the body and hiding the killing for several years. The offender there also had a history of violence.

[9] R v Tuwhangai HC Hamilton CRI 2007-019-19, 24 September 2007.

[10] R v Hamiora HC Rotorua CRI 2005-063-3367,  CRI 2005-063-3368, 24 November 2006.

[40]     Overall, I consider that the circumstances here are worse than Tuwhangai  but comparable to Brown.   Therefore, in my view, an appropriate starting point is 12 years.

[41]     There are no aggravating or mitigating features personal to you, except that you have expressed considerable remorse.   I do not consider that your prior relationship with Mr Moore and your mother is a mitigating factor.   There is no evidence of abuse of a kind that might provide an explanation for your conduct.  I

consider, however, that your unqualified remorse attracts a discount of 5%.[11]     I

accept that you feel great hurt at what you have done and that you are prepared to take part in a restorative justice process.   I also consider that you should have the

benefit of a full 25% discount for an early guilty plea.  It appears that you were open about your offending from the outset and your early guilty plea followed logically from that.  On that basis, I commence with a starting point of 12 years but apply a discount of 30% on the discretionary uplift of eight months.

[11] Fleming v R [2011] NZCA 646 at [11]; Hessell v R [2011] NZSC 135 at [64]

[42]     Mr Gleeson you are convicted on one count of murder and I sentence you to a minimum sentence of 11 years and four months imprisonment.  I would endorse an opportunity for you to participate in a restorative justice process to assist in the healing process. Your outstanding fines are remitted.

First warning

[43]     Given your conviction for murder you are now subject to the three strikes law.   I am going to give you a warning of the consequences of another serious violence conviction.  You will also be given a written notice which contains a list of these “serious violent offences”.

1.If you are convicted of any one or more serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.

2.If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so.  In that event the Judge must sentence you to a minimum term of imprisonment.

Mr Gleeson, please stand down.

Solicitors:

Raymond Donnelly & Co, Christchurch, for Crown

C M Ruane, Christchurch, for Prisoner