R v Graham
[2022] NZHC 2947
•10 November 2022
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2020-025-001129
[2022] NZHC 2947
THE KING v
SANDY MAREE GRAHAM GEORGE IVOR HYDE
Hearing: 8 November 2022 Counsel:
R W Donnelly and M B Brownlie for the Crown
S A Saunderson-Warner for the Defendant Graham
F E Guy Kidd KC and R R Smith for the Defendant HydeJudgment:
10 November 2022
SENTENCING REMARKS OF NATION J
[1] You have heard the submissions that have been made for you. You know that they were presented in writing and backed up with a lot of material which I had to read and have read very carefully.
[2] For everyone that is in Court, I want you to know that I need to go through how I have reached my decision very carefully and it is important that there be a record of the basis on which I have arrived at a sentence. You have heard submissions that have been made by both the Crown and for both these people. They have been very detailed submissions presented in writing. I have to consider those carefully. But, ultimately it is my judgment as to the sentence that has got to be appropriate and necessary for what happened.
R v GRAHAM & HYDE [2022] NZHC 2947 [10 November 2022]
[3] When he was killed, Dale Watene had just turned 40. And, I am going to say something more about him. And, I do that because of the way the defence at trial referred to various incidents that had occurred in a previous relationship and ways he had acted in Ms Graham’s home on two occasions when the Police had served Police safety orders on him before the events of 16 April 2020 when he was shot. They have referred to the same matters in suggesting that they mitigate the seriousness of this particular murder.
[4] During the trial I heard evidence from the Police officer who served those last two Police safety orders on Mr Watene. I also had the summaries of facts and other documents as to charges he had faced and pleaded guilty to in connection with incidents in an earlier relationship. I also had medical records referring to the engagement he had with mental health services following those incidents and his engagement with his local medical centre in 2019.
[5] Dale Watene was someone who, at least at times, felt insecure in the relationships he had. He was presented as someone who was jealous of a partner having contact with other men. I do not consider jealousy is the appropriate way to describe it. However, he perceived certain behaviour by his partner as being a threat to his relationship even though he later acknowledged it had not been. Mr Watene also had times when he would binge-drink and become grossly intoxicated. On several occasions, that coincided with times when his feelings of insecurity were intense. That led to his behaving in a way which was distressing to his former partner and their children, and to his being charged with certain offences, but he did not physically hurt them. Ms Graham’s counsel acknowledge this in their submissions.
[6] On each occasion, the documents showed he was sorry for what he had done, did not blame his partner and accepted responsibility through prompt guilty pleas to the charges he faced. On each occasion, the Police and the courts recognised that his mental health at the time was a factor in what had happened. The records as to that showed, in speaking to nurses and so on, he was frank in telling them what he had done. He nevertheless assured those who were assessing him that he was at no risk of causing physical harm to himself or to others. With all I learnt about him, that was also my assessment.
[7] Mr Watene was a good worker and he was deeply attached to his step-children and his son from his last relationship. One reason why Dale Watene’s friends knew he would not have committed suicide when he was reported missing was that he had not left behind his pounamu pendant, a taonga he would have wanted his son to have if he knew he was going to take his own life.
[8] Despite his difficulties, it is obvious from what I have read and the victim impact report I heard that Dale Watene was much loved by his mother with whom he was in regular contact, by his son and step-children. As a father and a step-father, he was also valued and respected by his former partner.
[9] Medical records showed that, after the last occasion on which he had pleaded guilty to breaching a protection order with her, he had been prescribed medication and was having contact with both mental health services and his local medical centre. In 2019, Dale Watene recognised that the way he used alcohol was destructive for himself and for others.
[10] A note from the medical centre of 18 June 2019 referred to contact Mr Watene had made with the Salvation Army regarding alcohol to help him stop, his belief that alcohol was a significant contributor to his issues and his feeling guilty as to the effect of alcohol on his behaviour.
[11] A note of 1 July 2019 from the medical centre referred to contact with Mr Watene and recorded that he had stopped drinking and had stated that things were going well.
[12] It was a tragedy for Mr Watene that, around September 2019, he began a relationship with you Ms Graham.
[13] What Mr Watene probably did not know but what the Court now knows as a result of all the evidence in the trial and a psychologists report produced for you is that Ms Graham you are an alcoholic, a person prone to irrational violence, someone who could be brazenly dishonest even with those closest to you, and promiscuous. In their
submissions for you, counsel acknowledge that a high degree of conflict would appear to be typical of your intimate relationship style.
[14] Mr Watene’s relationship with you Ms Graham turned out to be a tragedy for him because it ultimately led to him being killed. It has also been a tragedy for those who lost him as a son and a father. It has had tragic consequences for your children who will be deprived of the care of a mother while they are growing up. It has also been a tragedy for Mr Hyde who got caught up in your offending.
[15] Ms Graham, your relationship with Dale Watene had its ups and downs but, from his messaging and from all the evidence, I consider he was someone who wanted to have a genuine relationship with you. He was not involved with you simply for sexual gratification in contrast to the way you described the nature of your relationship to others. At times when he had contact with his son, he brought him into your family.
[16] In your evidence you said there was a time when you thought he was depressed about the end of his previous relationship, his not having contact with his children and the ending of his employment. You said you offered to marry him, gave him a ring and that had lifted his spirits, but that he was despondent when, a short time later, you took the ring back after, as you said in evidence, you had sobered up. It was not a case of him proposing to you, as it was put in submissions for this sentencing.
[17] In late 2019, before Christmas, a friend lent you a .22 Ruger rifle. You told him you were going possum shooting with Mr Braven. Mr Braven had a gun licence. You were not licenced to have a firearm. On Boxing Day 2019, Mr Braven went to your home, found the rifle behind a mirror in your bedroom. The safety catch was off. There was ammunition in the magazine. He was angry with you having a rifle in that state where it was. Then you went camping with Mr Braven and others. You took the rifle. Mr Hyde was there. You were thrown off a four-wheeler and broke your collar bone. That was when you needed the rifle for possum shooting. At the end of that trip, Mr Braven took the .22 back to his place and kept it in his gun safe.
[18] In January 2020, you and others, including Mr Braven, went to the jet sprints at Wanaka. After that trip, you and Mr Braven had a falling out. On 27 January 2020,
you texted him and said “can you drop my gun off or I come grab it”. He dropped the gun off. That was how you came to have the rifle, which was used to shoot Mr Watene.
[19] In your evidence, you said you confronted Dale Watene with a rifle. You said, in response to that confrontation, he had put the barrel of the rifle in his mouth and said shoot me. The Crown accepts there was an incident, witnessed by at least one of your children, when the barrel ended up in his mouth. Just how that happened is not clear. On that occasion, Mr Watene had obviously not expected that you would shoot him and you did not do so. But, this is not what happened on the night Mr Watene was killed.
[20] There were two occasions when Mr Watene was at your home, intoxicated. On one occasion, he came in the early hours of the morning. There was probably verbal abuse between the two of you. Your children did not like it. On each occasion you contacted the Otautau Police officer you knew. Constable Watkinson came to your home. Mr Watene was compliant with him. A Police safety order was served on him. After each occasion, you got back together.
[21] Despite those two occasions, your relationship with Dale Watene resumed after the second Police safety order expired and he had demonstrated his kindness towards one of your children. You were apparently back on good terms with him on 15 April 2019 when you and your children went to Longwood Forest.
[22] On 16 April 2019, you Ms Graham, and Mr Watene and your two children again went to Longwood Forest to collect pinecones. Dale Watene’s vehicle became stuck in a creek. You contacted a friend to obtain help to tow you out. Two men came. They were able to pull out the vehicle. You invited them back to your place in Otautau. The four adults and your children ended up there. The adults were drinking outside, but not for long. While they were there, Mr Watene cooked a meal for all of you. Neither of the other men observed any hostility between you and Mr Watene.
[23] Later in the evening, around dusk, Dale Watene said he was going to buy more beer. The two men left.
[24] With the evidence from the children, I find that, after that, you and Mr Watene were watching TV in the living area. You probably both fell asleep.
[25] Later, there was a heated altercation between you and Mr Watene in the kitchen/living room area of the house. I accept there would have been intense verbal abuse, but it is not clear that this was necessarily from Mr Watene. It is likely the argument started over Mr Watene wanting to look at your cell phone. There had been an earlier occasion when there had been an argument over cell phones. You had thrown Mr Watene’s cell phone into the fire. He was upset because it had photos of his children on it.
[26] In your evidence, you said you settled the children down in their beds. You said, after this, you got into Mr Watene’s vehicle which had been in the garage. You said you drove it out of the garage with Mr Watene putting his arm into the vehicle and trying to remove the key. You said that you drove the vehicle several blocks to a nearby park/sportsground and left the vehicle there, and then ran back to your house. You said in evidence that you did this in the hope that Mr Watene would follow you and the vehicle and so be away from your children.
[27] The Crown argued in closing that the vehicle had been left near the sportsground as part of the attempted cover-up and Ms Graham’s lie that on 16 April 2019 Mr Watene had simply failed to return after going off to buy some beer and had gone missing. The Police suggested it was part of a cover-up because it had been found without a battery in it. The battery would have been removed from the vehicle for use in another of Mr Watene’s vehicles which had been at your place but which was driven back to Mr Watene’s home and left there in the days after he was killed.
[28] It is not necessary for me to decide whether the Crown was correct in its submission as to this. I reject as dishonest your evidence that you drove the vehicle away from the home in the hope that Mr Watene would follow you and so be away from the children.
[29] You said in evidence that you had settled the children. There was nothing in the accounts of earlier incidents to suggest that, even if angry with you, Mr Watene
would have threatened the children with physical violence. If he had been threatening the children, you would not have left him in the house with the children.
[30] If indeed you did drive off in his vehicle at that point, I consider it more likely this would have been because you were extremely angry with him, in part because, in the earlier verbal altercation, he had taken your phone off you. This would have been a way of getting back at him.
[31] In your evidence you said that, having left Mr Watene’s vehicle at the sportsground, you ran back to your home, heard him screaming at the children and grabbed the rifle from your bedroom where you kept it behind the mirror. I do not accept your evidence that he was screaming at your children. That is not consistent with the evidence that I read and heard from others in relation to that. I find that, when you grabbed your rifle and confronted Mr Watene, you were in an irrational rage over what had happened. In your evidence you said you pointed the rifle at him while pushing him towards the door to the house, and that as you were doing this he took hold of the barrel and put it in his mouth, that there was then a struggle as you were both pulling on the rifle. You said, after putting the barrel in his mouth, Mr Watene kept calling you a slut and abusing you, something which would have been most difficult for him to do with the barrel in his mouth. You said you pushed him out the door but, while you were doing this, the rifle had gone off. You did not say anything as to how that had happened.
[32] I consider your account of using the rifle to force Mr Watene towards the outside of the home and of a struggle and the rifle going off in the course of that struggle, was a fabrication, dishonest. So too, I consider you have been dishonest in saying to the probation officer that you still do not know whether you pulled the trigger. The pathologist Dr Sage considered that, from all he observed, the muzzle of the firearm was at least 0.4 of a metre from Mr Watene’s face when the fatal shot was fired. The ESR firearm forensics expert, Mr Newton, considered the muzzle would have been no closer than 0.8 of a metre away.
[33] I am sure, as the jury must have been, that you were physically apart from Mr Watene when he was fatally shot, that at that point Mr Watene would not have had his hands on any part of the rifle and it was you who pulled the trigger and fired the rifle.
[34] Because I consider your evidence as to how the rifle came to be fired was a fabrication, there is no evidence as to the precise positions you were in relative to each other before you fired the fatal shot but you were close enough to be able to shoot Mr Watene through his open mouth with a bullet that travelled through to the back of his mouth and throat with the only damage to the interior of his mouth being a gouge across his tongue. Given the evidence he was shot through his open mouth, I do not discount the possibility that, with you confronting him with a rifle, he responded not by struggling to get a hold of the rifle or by attacking you. He may well have demonstrated his vulnerability by standing or even lying down before you with his mouth open. But, if he did do that, it would not have been with the expectation you would actually shoot him.
[35] It was made clear to me during the trial that it was not being suggested by the defence that Mr Watene intended to commit suicide or that what you did was in self- defence.
[36] The rifle was loaded with a bullet when you fired it. I am sure, as was the jury, that when you fired the rifle you intended to deliberately shoot Dale Watene from a short distance, knowing the rifle was loaded so that, at that moment, you either intended to kill him or had the reckless murderous intent required to be guilty of murder.
[37] That was why, to try to avoid the consequences of what you had done, you obtained the help of George Hyde, you did not tell the Police or any emergency service what had happened and then, in the days and weeks afterwards, lied and lied, pretending you did not know where he was, when you knew all that time that you had shot him and had ended up burying him where you hoped nobody would find him.
[38] At 8.45 pm on 16 April, you sent a text to Constable Watkinson saying “are you on duty”. At 8.55 pm, he responded to you “whats up”.
[39] At around 9.00 pm, you rang George Hyde, who was at his home in Tuatapere and asked him to come to your house. In his first interview, Mr Hyde said you asked him to come to your house for a drink.
[40] At 9.45 pm, you texted Constable Watkinson and said “don’t worry we in bed all tucked up. Was someone pissed looking for Troy. They gone now. Sorry to waste you’re [sic] time.”
[41] Your lies began when the children saw Mr Watene lying on his back in the hall, bleeding and with a hat over his face. You told that child Mr Watene was pretending to be dead.
[42] Mr Hyde came to your house. You and he wrapped Dale Watene’s body in a tarpaulin and put it in his BMW car which was in the garage at your home. Late that night, Mr Hyde, you drove back to your home at Tuatapere.
[43] The following morning, Mr Hyde, you drove back to Otautau. You and Ms Graham and her two children then went to Longwood Forest. You both dug a hole there deep in the forest. Later that day, Mr Hyde, with Ms Graham’s help, you took Mr Watene’s body from the BMW, where you had put it the previous night. Mr Hyde, you took him to Longwood Forest and buried him in the hole you had both dug.
[44] Neither of you had told anyone of what had happened to Mr Watene. After a few days, concerns were raised with the Police that Mr Watene was missing. His friends began looking for him. Ms Graham, you continued with the big lie, telling the Police and others that you had not seen Mr Watene after you said he left your home early in the evening on 16 April to go and buy some more alcohol.
[45] You were callous enough to have some of your friends, including Mr Hyde, at your place for a drinking session on 18 April 2020.
[46] On 20 April 2020, you sent an SMS message to Mr Watene’s phone telling him to let someone know he was ok, as if he could. You messaged a local Police officer
offering to ring Mr Watene and told Constable Cowie it had been Mr Watene’s birthday and he was probably on a bender.
[47] On 23 April 2020, on your initiative, you Facebook messaged Mr Watene’s mother as if you shared her concerns and wanted to know where he was and what had happened to him.
[48] You lied to close friends, pretending you knew nothing about Mr Watene’s disappearance.
[49] Ms Graham, you were first interviewed by the Police on 24 April 2020. You told them you did not know what had happened to Mr Watene, only that he had left your house on the evening of 16 April and you had not seen him since.
[50] On 27 April 2020, Mr Hyde, you took some bricks and other material that had been demolished from your home in Tuatapere, drove to Longwood Forest and dumped the material on Mr Watene’s burial site in an attempt to prevent it being discovered.
[51] Mr Hyde, you were first interviewed by the Police on 6 May 2022. In that interview, you initially denied going to Otautau on the night Dale Watene was killed. When you were confronted with the information the Police had about vehicle movements and phone calls with Ms Graham, you eventually admitted going to her home. You said it had been just to have a few drinks and you had then returned to Tuatapere. You claimed to know nothing about what had happened to him.
[52] You told the Police you went to Otautau the next day and you went to Longwood Forest to take Ms Graham’s dog for a walk there and to get a load of firewood.
[53]On 18 May 2020, Mr Watene’s body was discovered.
[54] On 4 August 2020, Mr Hyde you were interviewed again. As you were entitled to, you exercised your right to silence. You were arrested on a charge of being an accessory after the fact to murder.
[55] Ms Graham, you were interviewed again also on 4 August 2020. You continued with your lie and denied any knowledge of what had happened to Mr Watene and any involvement in his death. You were charged with his murder.
Ms Graham
[56] I deal with you first Ms Graham. The jury found you guilty of deliberately shooting Dale Watene with murderous intent. As with every murder, the harm you caused cannot be measured. Perhaps you will think about how a little boy will never have his father. As you accept, your sentence will be life imprisonment, and this will be a life sentence. You will only be released from prison if the Parole Board considers it will be safe for you to be in the community.
[57] Your history and conduct leading up to this murder and afterwards will show to the Parole Board that there are aspects of your personality and history that, at present, mean you were at risk of causing serious harm to any man you are in a relationship with. There was recognition of this in your counsel’s submissions when they referred to the high degree of conflict being typical of your intimate relationship style. Your counsel said it was perhaps no exaggeration to say that the way in which you had lived your life up to that point was likely to have a tragic result, whether for you or for someone else. Your counsel said that was due to factors from your background. Whether that is because background matters you referred to may well require considerable further investigation, but what is clear is that, at present, you are someone who is at risk of causing serious harm to someone with whom you are in a relationship.
[58] Because you are receiving a life sentence, if you are ever released into the community, if you reoffend or Corrections find out that others are at risk because of what is happening in your life, you could be recalled to prison to continue serving your prison sentence.
[59] What I must decide is the minimum period of imprisonment you must serve before the Parole Board can even consider a release on parole.
[60] It may not be less than 10 years and must be the minimum term of imprisonment to:1
(a) hold you accountable for the harm you did to Mr Watene and the community by your offending;
(b) denounce the conduct in which you were involved;
(c) deter you or others from committing the same or similar offence; and
(d) to protect the community from you.
[61] As the Court of Appeal observed in Webber v R, it is for that reason that discounts for personal mitigating factors have played a lesser role in such cases.2
[62] Section 104 of the Sentencing Act 2002 says the minimum period of imprisonment will be at least 17 years where a murder has been committed with “a high level of brutality, cruelty, depravity or callousness”. Of course, every murder is callous. So, the callousness has to be something in addition to that. Here, there was real callousness in the way you arranged for Mr Watene’s body to be hidden deep in Longwood Forest, buried without any respect or dignity, buried with the hope and intention that his body would never be discovered so that those close to him would never have had the opportunity to show their respect and love for him in the way he deserved.
[63] There was also real heartlessness in the way you pretended to people close to Mr Watene that you did not know what had happened and pretended he might still be alive over all the weeks that he was missing. There was maliciousness in your lies in the way you suggested certain other people might have been responsible for his death.
[64] The Crown however properly accept that this sort of callousness is, on its own, not enough to meet the s 104 threshold. That is consistent with the approach taken by courts in other cases.3
1 Sentencing Act, s 103(1) and (2).
2 Webber v R [2021] NZCA 133.
3 R v Lingman [2021] NZHC 1394; R v Lambert [2020] NZHC 2475; K v R [2020] NZCA 656; R v Joyce [2022] NZHC 1083.
[65] The way in which you organised and helped in the burial of Mr Watene’s body remains however a significantly aggravating feature of the murder.
[66] So too, it is a seriously aggravating factor that this murder was committed with a rifle. You did not have a licence to be in possession of a firearm. The rifle was not safely locked away as rifles had to be. You had kept it in your bedroom in a place where you could quickly find it and use it. Because of that, you were able to obtain it and confront Mr Watene with it and then shoot him. But for that firearm being available to you, this killing would probably never have happened. I do not accept the submission that, on 16 April 2020, you had the rifle in your possession for shooting possums. I am sure you had it so you could confront someone with it if you wanted to.
[67] Mr Watene was vulnerable. Despite the difference in size, you were the only one armed with a lethal weapon and he was in your home, a place where he would have expected he could be safe.
[68] The way in which you killed Mr Watene has to be the focus of my consideration as it also was in considering s 104.
[69] I do treat the shooting as an irrational act of violence while you were in a rage. There was nevertheless a degree of premeditation in that you had gone to your bedroom, collected the rifle, knew it was loaded and you confronted Mr Watene with it. I cannot however be sure that, when you did that, you knew and planned that you were going to shoot him. The actual shooting may have been a choice you made in the midst of the confrontation which you started. But, the jury was obviously sure that the shooting was deliberate.
[70] I do not accept Mr Watene’s conduct is a mitigating factor. I do not accept that, on this occasion, he put the firearm in his mouth. I do not accept that he had threatened to assault you or your children. I do accept that your children have been distressed at times when there had been verbal abuse between the two of you. With all I have read and heard, such abuse is just as likely to have started with you. What one child said about an incident when they were scared when he came into your bedroom and they
were in bed with you, did not relate to the night of 16 April 2020. Instead, the child was likely referring to what happened at one of the earlier times the Police issued a Police safety order.
[71] On my view of all the evidence, the defence have grossly mischaracterised the nature of this case as being one “where conflict had built up in the context of a volatile relationship, where the deceased had been acting badly, where a .22 was pulled out (which was usually at the address) in the context of that volatile dispute, where the deceased put the barrel of the rifle in his mouth and where a single shot then follows”.
[72] The Crown refers to minimum periods of imprisonment in other somewhat similar cases.4 It suggests the minimum period should be 15 years’ imprisonment. Your counsel referred to other similar cases and suggests a minimum period of 12 to 13 years.5
[73] The minimum period of imprisonment I adopt as a starting point for your offending is 14 years.
[74]I turn to consider aggravating or mitigating matters relating to you personally.
[75] You have a number of convictions for serious driving offences, mostly alcohol related. But, you also have convictions for threatening to kill and common assault in the context of family violence in 2011 and a conviction for unlawfully discharging a firearm in 2009. Nevertheless, there is to be no uplift in the minimum period on account of those matters.
[76] Credit is also given on occasions for steps that have been taken towards rehabilitation, and for tangible remorse for admitted offending which an offender takes responsibility for.
4 R v Lingman, above n 3; K v R, above n 3.
5 R v Fennell HC Wellington CRI-2007-085-238; R v Meads HC Hamilton CRI-2009-019-8828; R v Hall [2017] NZHC 410; R v Wallace [2018] NZHC 3289; R v Tai [2018] NZHC 1602; R v Brown HC Wellington CRI-2010-032-1028; R v Callaghan [2012] NZHC 596; R v Jefferies [2018] NZHC 2363.
[77] You have not shown remorse for the killing of Mr Watene as distinct from what you did afterwards. You were not willing to discuss the circumstances of the offending with the probation officer and you still assert that you do not know how it happened.
[78] This offending arose out of the relationship you were in at the time. The psychologist’s report suggests that the way in which you involve yourself with men puts you and them at the risk of further offending. There is nothing before me to suggest you are addressing that important aspect of your potential for offending. You would not permit the probation officer to contact the person with whom you say you are still in relationship with to see if he had any information which might have assisted the probation officer to address the extent to which there is a risk of future offending in other relationships and how tha6t risk might have been reduced while you have been on remand.
[79] Your counsel seeks some further discount on account of what happened to you and what you say happened to you as a child and a teenager. I have to be sceptical about some of that, given what I saw as your willingness to lie in connection with this case. It has however been confirmed to me that you were the victim of some abuse as a teenager and I do take that into account.
[80] Your counsel provided me with a report from Associate Professor Simon Adamson, a clinical psychologist. He says you provided him with information about your childhood in which you say you were poorly treated by your mother. The psychologist says you meet the diagnostic criteria for post-traumatic stress disorder and for cannabis use disorder. The psychologist says that, whatever the full extent of your experiences when you were younger, “it is clear this has had a profound effect on her personality formation, including her ability to maintain healthy relationships”. There is however information in the report which indicates that, as a teenager and later, you made conscious and independent choices as to what sort of relationships you would seek with men and also as to the use of alcohol and drugs. The psychologist said, despite your history of sustained heavy drinking, you considered your drinking to be quite normal and functional.
[81] In that report there were allegations that were made as to things that had happened when you were a child. Those matters had not been referred to in a psychologist report prepared for counsel. There was a report by Mr Craig Prince dated 15 February 2021. They were not referred to in a supported psychological assessment for ACC. I have not been provided with a copy of Mr Prince’s report.
[82] Your counsel and the psychologist said you made a disclosure of those matters in 2019, pre-dating this offending but I do note that, in 2019, you were due to be sentenced for serious alcohol driving offending where, because of previous such offending, you were facing the prospect of imprisonment.
[83] I do acknowledge the steps you have taken to assist in your rehabilitation while on remand. You have made some progress in accepting that you are an alcoholic and thus you need to deal with that addiction. I am nevertheless concerned that you have shown that commitment at a time when the incentive to do so was there because of you facing prosecution for murder and now sentence. The challenge for you will be to remain committed to be alcohol and drug free when you are not under the threat of a further prison sentence.
[84] I note that the psychologist has said that you gained some insight into the unhealthy nature of your substance abuse but this insight remains limited and you are at high risk of relapse when presented with the opportunity.
[85] Others assisting you at the two places where you were on remand have spoken highly of your commitment, but I do remain concerned about your potential for deception, as far as those people are concerned. They spoke of such a commitment when you were on remand with Anglican Action in Hamilton but you breached the conditions of your bail and had to leave that centre after you were found to have been using cannabis while there.
[86] While appearing to be committed to the drug rehabilitation at Anglican Action, you were using cannabis, according to the psychiatrist’s report, on a daily basis. I note also that, while seeking credit for the efforts you have made in dealing with drug addictions, you were not willing to tell the psychologist whether or not you were using
cannabis while now on remand in prison. The report also informed me that, while attending an addiction treatment programme in 2019, you told those running the programme that you had stopped drinking, thinking this was what they wanted to hear when in fact your alcohol use had continued.
[87] The latest psychological report does not identify how the way you were brought up led you to think it was permissible for you to have a firearm unlawfully, use it to threaten a man you were in a relationship with and then to deliberately shoot him with it.
[88] Whatever start you had in life, your offending history indicates that you have been given every opportunity to appreciate that you needed to make changes to avoid being at risk of serious offending which would put others in danger.
[89] I must take into account as a mitigating factor that you spent time on EM bail. You were EM bail for nine months and three days.6 As to this issue, I must consider, when considering any reduction for this, is your compliance with bail conditions during that period. And I have discussed and referred to the way you conducted yourself during that period.
[90] Your counsel suggested there should be credits for a total of 18 months on the starting minimum period. The Crown initially submitted there should no such credits but today accepted that, because of information in the psychologist’s report, there could be some allowance for that.
[91] I will recognise the nine months you spent on EM bail with a credit of four months and there will be a credit of eight months to recognise the PTSD (post- traumatic stress disorder) which you have been diagnosed as suffering from, and the way your personality has been affected by certain events in your teenage years which may well have affected your personality. I also recognise there has been some effort to deal with your addictions issues while on remand and in custody. That will result in a lessening of the minimum period from 14 years to 13 years imprisonment. I
6 Sentencing Act, s 92(h).
consider this is the minimum that must be imposed for the purposes of s 103(a) of the Sentencing Act.
[92] But, Ms Graham, you will realise this does not mean you will necessarily be released from prison after [13] years. That will be only the time at which the Parole Board can consider whether or not you should be released on parole.
Mr Hyde
[93] I now come to you Mr Hyde. At the time you became involved with Ms Graham in connection with this offending you were 22. Ms Graham was 31. You had left school at 15. You owned your own home. You were in stable employment. You had good mechanical skills. You made a bit of money on the side through buying vehicles with problems, fixing them up and selling them again. You did not have a lot of friends. You had known Ms Graham since you were about 16 when you both lived in Tuatapere.
[94] On an assessment by a psychologist, your intelligence was within a normal range, albeit the lower end of that range. Having listened to you and observed you in two lengthy Police interviews, I have no doubt that you would have understood the seriousness of the situation where you saw Dale Watene in Ms Graham’s home having been shot through the head. You would have understood the seriousness of what you were doing in cooperating with what she wanted and not immediately telling the Police or making her tell the Police what had happened on the night of 16 April 2019. You knew and understood what you were doing in:
(a) putting Dale Watene’s body in his BMW car in the garage at Ms Graham’s home on the night he was killed;
(b) the following day, going to Longwood Forest with her and digging the hole deep in the forest where it would be difficult to discover;
(c) later that day, on your own, taking Mr Watene’s body to that hole and burying him there; and
(d) in further trying to conceal the burial site with demolition material on 27 April 2019.
[95]That is the offending for which you are being sentenced.
[96] I accept that you helped her as you did because of the influence she had over you, but it is significant that it was you alone who took Dale Watene’s body to Longwood Forest and buried him there. It was you alone who dumped the material on the site a few days later. You continued to conceal information from the Police in your interview on 6 May 2020. Because of that, the harm to Mr Watene’s family and friends, through prolonging the time they did not know what had happened to him, was longer than it needed to be. The burden on the Police in trying to find Mr Watene increased.
[97] The way you lied to the Police in that interview is also important when I have to consider to what extent you had chosen, on your own, to help Ms Graham as you did.
[98] On all I heard and observed in this trial, I do not consider that Ms Graham sought your help because you were her best friend. I am satisfied she got you to come to your home because, of all the men she knew, it would be you that she would most likely be able to manipulate into helping her in the way she needed. I am satisfied this is what she did on the night of 16 April 2019 and in the days and weeks that followed, ultimately reaching a point in that manipulation where you had a sexual relationship with her.
[99] I am satisfied, but for the way Ms Graham used you, you would never have done what you did. Your basic decency was apparent in your first interview. Initially, you denied leaving your home that night. Faced with information as to how the Police knew you had gone to Otautau on the night of 16 April 2019, you ultimately acknowledged you had done so, but, as I said, you told the Police it had been just to have a few drinks and you then returned to your home. You denied knowing anything about what might have happened to Dale Watene at that address on that night.
[100] At the end of that interview, the detective put it to you quite squarely that you did know something, that the Police were investigating a murder and that, in your own interests, you needed to tell the Police what you knew. It was obvious from the long delay in a response and your physical response to those questions that you were in anguish about how you should respond.
[101] With their verdict, the jury were sure that, when you were helping to try to hide Dale Watene’s body, you did not believe he had committed suicide. I have no difficulty in accepting the jury’s decision as to that.
[102] The jury’s verdict was consistent with their not being sure that you knew Ms Graham had deliberately shot Mr Watene with murderous intent so as to be guilty of murder. Their verdict in that regard was a rational one. With what they had learnt of Ms Graham during the trial and the particular way she lied to close friends, people who it would seem had some sympathy for her, the jury must have accepted, as I do, that Ms Graham probably never told you outright that she had deliberately shot Mr Watene. What she likely told you might reasonably have allowed you to believe that the actual shooting could have been accidental, although you must have known that her use of the rifle was unlawful. So, the jury did not accept that you helped Ms Graham, in all the ways you did, believing it was suicide. In telling probation this is what you still believe, you are not taking responsibility for your offence.
[103] You knew that you were assisting Ms Graham in trying to conceal from the Police evidence that Dale Watene was dead and that he had been shot through her unlawful use of a firearm. You must have seen that he had been shot in the head in her home. In hiding the body, you were trying to conceal what is usually the most important evidence in a homicide investigation, the body of the deceased. With their verdict, the jury found you did that for the purpose of assisting Ms Graham to avoid a charge or conviction for killing him. What you did was intended to interfere with the investigation and thus the course of justice in the most serious way. A particular aggravating feature of your offending was that you interfered with the evidence in a manner that was deeply distressing for Dale Watene’s family and friends. In burying him as you did, you treated his body with disrespect. You intended, with what you were doing, that Dale Watene would never have the dignity of a proper funeral and
that his friends and family would never have the opportunity to show the respect and the love they had for him.
[104] I note the probation officer has said their report has come at the end of a protracted process with you and your mother being involved in a number of court- ordered and defence-initiated interviews. For the probation officer, it has been difficult to assess the factors that may have contributed to your offending. The psychologist, Dr Nuth, assessed you to have borderline range scores in both working memory and verbal comprehension. Probation says that was evident during their interview with you.
[105] I too am concerned that those providing reports about you have not been able to engage with you on your own enough to find out what really led you to help Ms Graham as you did.
[106] In Dr Nuth’s report of 5 November 2020, he said you presented as a man who was trusting, accommodating and lacked assertiveness, with the note “he frequently deferred to his mother when asked questions”.
[107] Your counsel has referred to the fact that the psychologist, Dr Nuth, referred to the fact you were rated as very compliant, in the highest five per cent of the normative population. Dr Nuth did say this, but it was based on ratings completed by your mother. She was present for some of the extended assessment. Dr Nuth referred to both you and your mother being administered a self-report and other report measure of compliance. Because of your struggle with reading and understanding the items, you did not complete the questions. He noted your mother’s scores put you in the highest five per cent of the normative population, not dissimilar to scores provided by known false-confessors in the standardisation/validation study.
[108] Through your first interview with the Police, I saw for myself how you could withstand intense questioning in refusing to reveal what you knew about what happened on the night of 16 April 2020 and the days afterwards, when it was your choice to be dishonest about that.
[109] I note that elsewhere in his report Dr Nuth said that your performance and testing indicated you were not likely to change answers to questions as a result of social pressure.
[110] I note also that Dr Nuth said the potential for compliance, although very influenced by personality traits, is also affected by contextual and interpersonal factors such as the people involved, their relationship and type of interactions, level of perceived coercion and other situational factors.
[111] From what I have been told, I am not satisfied that either Dr Nuth or the probation officer have been able to assess to what extent it was those factors that caused you to help Ms Graham as you did, at such a cost to yourself but, more importantly, Mr Watene’s family, the community, the Police and justice. I acknowledge that Dr Nuth was not asked to make such an assessment.
[112] The probation officer tells me that you were sorry you did not take a different action when asked to help dispose of Mr Watene’s body. You say it is “just the way I have been. I always just go with the flow.” I do not think you have been completely honest in talking to probation about why you acted as you did or that it was just a matter of going with the flow. You decided you wanted to help her as you did. At the end of your first interview, the detective squarely put it to you that they thought you knew something important about what had happened to Mr Watene. They said you should not be hiding something out of loyalty to someone else, you had to look after yourself. You said “I always look after myself”. So, why is it you could have thought you were looking after yourself in doing what you did with Mr Watene’s body on the night of 16 April 2020 and the days afterwards?
[113] What you must understand Mr Hyde is then, when you are asked to do something that is seriously wrong, you cannot just go with the flow. You have to decide, as you did here, which path you are going to choose and, if you take the wrong one, it will have consequences. Now I have to decide what those consequences are going to be.
[114]First, I must consider the seriousness of your offending.
[115] You were attempting to conceal from the Police crucial evidence about a homicide. Your offending was not just under the stress of the situation that you saw when you went to Ms Graham’s home and saw his body. You did what you did on that night but there were also the subsequent actions the next day and then on 27 April.
[116] Ultimately, the Police did discover Dale Watene’s body and so the Police obtained evidence about what had happened. But their search had been difficult. With the place and manner you had buried him, his body might well never have been discovered. There was serious harm to his family and friends in the way your actions left them, for weeks, not knowing exactly what had happened to him. There is also the grief and anger they must have felt knowing how his body had been treated with such callousness and disrespect.
[117] The Crown refer to a number of cases and suggest a starting point two years and eight months’ imprisonment.7
[118] Your counsel refer to other cases.8 They suggested a starting point of no more than two years and four months’ imprisonment. That was on the basis that Ms Graham’s manipulation and your cognitive impairments would then reduce the starting point for the offending by 17.8 per cent to 23 months’ imprisonment.
[119] I acknowledge what Dr Nuth said about your level of intelligence, but you are not suffering from an intellectual disability. You have not suffered traumatic brain injuries, as did Mr Martin in the case which your counsel referred me to.9 Dr Nuth said in his report of 5 November 2020 that you did not appear to be beset with overt mental health difficulties. He said particular testing demonstrated you had no apparent susceptibility to suggestive questions, but did show you had a tendency to embellish answers in an effort to provide details. Your dyslexia has made reading and writing much more difficult for you but you did not need to be able to read well to understand what had happened when you were confronted with what had happened to Mr Watene
7 Piao v R [2020] NZCA 607; Betteridge v R [2019] NZCA 513; R v Wilkie-Morris [2016] NZHC 259.
8 R v Te Moana [2018] NZHC 1480; R v Haywood-Dodd [2019] NZHC 1612; R v Jefferies-Smith [2019] NZHC 2067; R v Green [2019] NZHC 1481; R v Leach HC Wellington CRI-2006-085- 4461.
9 Martin v R [2022] NZHC 145.
and were asked to help Ms Graham to try and prevent anyone finding out what had happened to him.
[120]I consider the distinctive and most important aspects of your offending were:
(a) the extended period and number of occasions on which you took steps to try and prevent the Police finding Mr Watene’s body;
(b) the harm you did to his family and the community with what you did;
(c) the difficulties you intended to create for the Police in the investigation of potentially a most serious crime, a homicide, whether it be murder or manslaughter.
[121] I accept the extent to which you were used and manipulated by Ms Graham was a mitigating factor as to the culpability of your offending. This offending did not however happen because of your gullibility in the way that happened in the case of Martin. Mr Martin had a gullible belief in a scam where he thought he could earn US$10.5 million through bringing a suitcase into New Zealand from overseas. There was methamphetamine in the suitcase. Mr Martin did not want to be bringing drugs into New Zealand. He hoped he would not be. He tried to make sure, but inadequately, that he was not doing so. But, he was guilty because he had recklessly taken the risk that he might be bringing in drugs.
[122] Unlike Mr Martin, you were not hoping that what you were doing was lawful. You knew it was wrong. You knew and intended that, with what you were doing, you would be preventing the Police from finding out what had happened to him. You chose to help Ms Graham as you did.
[123] As Jagose J noted in R v Green and as Thomas J had also noted, cases involving the disposal of a body often attract a starting point of around two and half to three years’ imprisonment.10
10 R v Green, above n 8, at [13].
[124] The way in which, over a period of time, you assisted in attempting to make it impossible for the Police to find Dale Watene’s body makes your offending particularly serious. I do have regard to what counsel has referred to as your cognitive impairment, to the extent that that’s been referred to in Dr Nuth’s report. I have regard to the way in which you were manipulated by Ms Graham and your particular vulnerability to such manipulation because of cognitive impairment. The starting point accordingly is not as high as the Crown suggested and submitted would be appropriate. But, the starting point I adopt for your offending is two years and six months, that is 30 months’ imprisonment.
[125]I turn now to the aggravating or mitigating factors relating to you personally.
[126] There are no aggravating factors. You have only one previous conviction, and the Crown accepts there is to be no uplift on account of that offence, and I do not take it into account in considering your entitlement to a credit for previous good character.
[127] You have been able to support yourself independently through your work and have not been in trouble before. And, I particularly acknowledge that with the way counsel referred to the fact you had to live basically independently since you were 16. I consider you are entitled to credit for previous good character. I have regard to your comparative youth when this offending occurred and to the way in which your intellectual abilities would have impaired your ability to exercise good judgement in the decisions which you had to make when Ms Graham wanted you to help her to hide evidence in the ways you did. You still knew and understood that what you were doing was wrong.
[128] The discount I allow for all those matters is 20 per cent, six months on that starting point of 30 months.
[129] I will give you some recognition for remorse, but it has to be limited. What I take from the pre-sentence report is that you are primarily sorry for the predicament that you now find yourself in. That is what, as the probation officer said, would have caused you to lament what you did. You have not however taken responsibility for your offending because you continue to say that you acted as you did because you
believed Dale Watene had been killed by suicide. I also consider you have minimised the extent to which you chose to do what you did because you wanted to help Ms Graham more than doing what you knew was the right thing, at least refusing to help her.
[130] You have offered to pay reparation. Initially that was through selling two vehicles that the Police have possession of. Today I have been told that you have
$1,000 in savings and your family have been willing to lend you, and have lent you,
$4,000 so you would have been able to pay $5,000 by way of reparation in acknowledgement of what you did. Understandably, there would be little comfort for Dale Watene’s mother or step-children in obtaining $5,000 from you and they have said they would not accept such reparation from you.
[131] Mr Hyde, I am not going to tell you to pay $5,000 to a charity. Ms Guy Kidd said you would be willing to do that and perhaps there may be an opportunity for Ms Guy Kidd to again, through the Crown, ask the family if they want to nominate a charity, so you have the opportunity to show that that gesture is genuine. But, I just leave that to you and your counsel.
[132] Ms Guy Kidd made the point that you have been penalised already for your involvement through the fact you have had to leave Southland, the place where you grew up, the place where you had regular work. You have had to sell your home in Tuatapere. I am told that, as a result of that, you are going to have to pay legal costs that might otherwise have simply been met by Legal Aid.
[133] Despite my concerns about you not having remorse, given the recognition that I must give to your willingness and ability to pay reparation, the credit I give you for those matters is three months off the starting point sentence.
[134] I am not giving you a discount for the fact, as arranged by your counsel, you had a further interview with the Police on 16 September 2020 and then told the Police how you were involved on 16 April 2020 and in the days afterwards. You had not been helpful to the Police when you lied to them on 6 May 2020. That is not part of the offending for which you are to be sentenced but it does mean that you should not
receive a credit for the fact you eventually told the Police what you had done. By then, the Police had allocated all the resources they needed to, to eventually find where you had buried Mr Watene. Independently of you, they had obtained all the evidence they needed to establish how and when you had been involved so as to be able to arrest and charge you as an accessory after the fact and to charge Ms Graham with murder. Nor do I consider that you told the Police what you had done just to assist them either in their investigation or with the evidence they would have to produce at trial.
[135] I consider it highly likely that you attended that interview and told them what you did because, by then, you had to face up to how you had been involved. You knew the information the Police would likely have as to your communications with Ms Graham, the movements of your vehicles going backwards and forwards to Longwood Forest, and you would have known there was demolition material from your home on the burial site. I consider you offered to be interviewed again so you could go on record saying that you believed Mr Watene had committed suicide, a statement you could make without being cross-examined about it in Court.
[136] Your assistance in the interview did not enable the Police to reduce the scope of any investigation or the evidence they had to present at trial to prove Ms Graham guilty. What you said in your interview with the Police was not admissible as evidence against her. For that reason, it is also entirely speculative to suggest that your admissions led her at trial to stop denying what had happened in her home and to try to suggest that what happened was an accident. It is much more likely that she dropped the denial because she knew, without your evidence, there was other evidence which proved beyond any doubt that Mr Watene was killed in her home on the night of 16 April 2020 and he had not simply disappeared after supposedly going off to buy alcohol earlier in the evening.
[137] The statement you made, as to believing at the relevant times that Mr Watene had committed suicide, was a statement the truth of which was rejected by the jury with the jury’s verdict.
[138] I also do not consider you are entitled to credit for offering, after that interview, to plead guilty to a charge pursuant to s 150 of the Crimes Act 1961 of misconduct in
respect of human remains. Such a charge, with a maximum penalty of two years’ imprisonment, compared to seven years for accessory after the fact to manslaughter, would not have reflected the true nature or seriousness of the offending which the jury found you guilty of.
[139] You were not on bail but, for about five and half months, you were subject to a 24-hour curfew. After that, for about four months, you were subject to a night-time curfew. For seven months, while on bail, you were able to work full-time. But, you complied with all conditions of bail. There will be a discount on a nominal prison sentence of four months.
[140] With credits for six months in relation to your youth, some cognitive impairment and good character, three months for some remorse and reparation, and four months for time spent on bail, the start point sentence of 30 months would be reduced to 17 months.
[141] The most difficult issue for me has been to decide whether or not you should be sentenced to home detention.
[142] Ms Guy Kidd began by saying that sending you to prison would not do you any good, and I accept that. But, the reason for imposing a sentence of imprisonment and not imposing home detention is because it is necessary for the purposes for which a court may sentence or otherwise deal with an offender. One of those is denunciation. And, that means a penalty which is a symbolic statement about your offence and the way it is regarded by the community. And, denunciation is particularly important in relation to attempts to pervert the course of justice, which is what your offending was.
[143] I also need to consider whether imprisonment is necessary for the purpose of deterrence. Imprisonment is not necessary to deter you from further offending. I accept, with everything that has happened to you as a result of what you did, you are never likely to offend like this again. But, imprisonment is also necessary as a deterrent to deter others from thinking that this sort of offending might be something that would be tolerated.
[144] I have also had to consider whether imprisonment is necessary as a way of providing for the interests of those who are victims of your offending, the family and friends of Dale Watene, who have to live with the reality as to how Mr Watene’s body was treated after his death.
[145] I could very easily, Mr Hyde, have decided you needed to be sentenced to imprisonment but, and it is again as happens in some other cases, by a fine margin, I am going to sentence you to home detention. And, obviously that requires a degree of understanding from the family, from [Dale Watene’s son’s mother].
[146] So, your ultimately sentence is going to be one of home detention. It is normally for half of an appropriate sentence of imprisonment. With the credits I have given you, half of 17 months would be eight and a half months, but I reduce that by a further half month to recognise the time you were in custody after your arrest. So, your sentence is going to be one of home detention for eight months.
[147]Ms Graham and Mr Hyde, can you both stand.
[148] Ms Graham, on conviction for the murder of Dale Watene, you are sentenced to imprisonment for life with a minimum period of imprisonment of 13 years.
[149] Mr Hyde, on conviction as an accessory after the fact to manslaughter, you are sentenced to home detention for a period of eight months.
[150] I direct that a copy of the psychological report obtained from Associate Professor Adamson for Ms Graham be sent to the Department of Corrections.
[151]You can both now stand down.
Addendum
[152] I will direct that the sentence I imposed on Mr Hyde is on condition that he is to be at the address to which he is to serve that sentence, which is the address in Geraldine where he has previously been on bail, and he is to be there by 2.00 pm on 9
November 2022. It is also a condition of that sentence that he be subject to the normal post-release conditions for six months after the end of that period of home detention.
Solicitors:
Crown Solicitor, Invercargill
P J Shamy, Barrister, ChristchurchS A Saunderson-Warner, Barrister, Dunedin F E Guy Kidd KC, Invercargill
R W Donnelly, PR Law, Invercargill R R Smith, Barrister, Invercargill.
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