R v Haerewa HC Wellington CRI-2010-085-4794

[2011] NZHC 1246

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-085-4794

THE QUEEN

v

JOHN HONE HAEREWA

Hearing:         6 September 2011

Counsel:         M Snape for Crown

J Miller and C Hollingsworth for Accused

Judgment:      6 September 2011

SENTENCE OF SIMON FRANCE J

[1]      Mr Haerewa, you appear for sentence having been convicted of the murder of

Ms Alison McPhee.

[2]      You and Ms McPhee were friends, and probably more than that.  You were together in her flat on July 22 last year, when for reasons not really known, you fatally assaulted her.

[3]      Ms McPhee was 42 years old.  She is the mother of two children.  The Court has today heard from her parents and from her sister who all understandably not only feel a great sense of loss, but also anger towards you.  The loss of a loved one is always hard to bear but it must be so much more so when it comes about in the

terrible circumstances revealed by the evidence in this case.

R V JOHN HONE HAEREWA HC WN CRI-2010-085-4794 6 September 2011

[4]      The mandatory sentence for murder is life imprisonment and I now formally impose that sentence.

[5]      The other issue is the length of time that you must serve in prison before you can be considered for release.  It does not mean that you will be released at that time; that will depend upon the Parole Board assessment, at a time well distant from now, of the risk you still pose.

[6] Parliament has provided that for some killings, the minimum period must be at least 17 years, unless there is reason to say otherwise. Counsel are agreed that this is one of those cases,[1] and for reasons that can be briefly stated, I agree.

[1] The focus of the written defence submissions was to dissuade the Court from going above

17 years.

[7]      One of the 17 year situations is when the:

Murder was committed with a high level of brutality, cruelty, depravity or callousness.

[8]      This case involves brutality at that level.   Ms McPhee was beaten to death with a wooden stool.  The medical evidence is that she could have died either from the assault on her body or the assault to her head.  It must have been a prolonged and sustained beating.  I do not wish to increase the family’s pain by entering into more detail than required.   Suffice to say that the injuries to Ms McPhee’s back, arms, shoulders and hands show she was trying to protect her head, but failed.  There were

14 separate lacerations to the head, each representing at least one blow.  There were blows to her body that left marks consistent with the ferocity of the attack. The assault plainly occurred both in the lounge and hall.  Ms McPhee tried to dial 111 for help, but was stopped.  The phone that made that interrupted call was found in the pocket of your blood soaked trousers.

[9]      In my view it is a killing of high brutality and accordingly a minimum period of 17 years in jail is required unless such an outcome would be manifestly unjust.

[10]      For many reasons it would not be.

[11]     First, the offending itself.  I have mentioned the interrupted call.  You also took steps to delay the discovery of her body.  You wrote a message on the wall, probably in an effort to direct blame elsewhere. You put a note in the window saying she had gone away.  You then locked the door from the inside and went out the back window. You told many lies thereafter.

[12]     An issue which arises is whether your culpability was lessened by the clear substance abuse issues from which you suffer. You were undoubtedly affected by alcohol and drugs on the night but to what extent is not clear. Although at 6.15pm you had to be helped to the flat, the firemen said you were able to tell them where and get there largely unaided. You are plainly used to functioning whilst intoxicated. The man in the upstairs flat heard you saying, during the assault, that you were going to kill Ms McPhee.

[13]     Several factors lead me to the assessment your culpability is not reduced. First the law says intoxication is no excuse. Second, although you say you have no recall and  maybe now  you  don’t  –  I don’t  know  –  you  clearly had  a level  of functioning at the time of the offending. You did the acts I have already described such as writing the note. Further, the lies you later told were purposeful; for example, you knew enough to try and change the date when you took Ms McPhee’s backpack. Having twice seen your police interview, I was left quite sceptical as to your claims of no memory. In all the circumstances I do not assess you as having any reduced culpability such as to support departing from the 17 year point.

[14]     Next, violently assaulting someone with whom you were in a relationship or close is not new to you. In 2006 you were sentenced to 28 months in prison for an assault on a woman where you intended to injure her. Earlier, in 1996 you were likewise sentenced to two years’ imprison for assault with a weapon and intending to injure.  It too was in a domestic context.  The reality is that you have acted before in a similar way (only without such tragic consequences) to that which you say you have no recollection of on this occasion.  You have shown yourself, not only by this crime  but  by  earlier  conduct,  to  be  a  significant  danger  to  the  public  and  any sentence would have to recognise that.

[15]     Finally,  you  have  shown  no  remorse.    You  declined  to  participate  in  a pre-sentence report.  Through your lawyer you say that you feel sad about how Ms McPhee died, but you disassociate yourself from that by the claim of no memory. It is a convenient claim that allows you to defend the charge, as is your right, in the face of overwhelming evidence, and then today to still distance yourself.

[16]     In  short,  I  see  no  reason  to  say  that  a  sentence  of  17 years  would  be manifestly unjust. On the other hand, when looking at other cases, I see no basis to go above 17 years either so that will be the term.

[17]     Accordingly, on the charge of murdering Ms McPhee: (a)      I sentence you to life imprisonment;

(b)      I direct that you must serve at least 17 years in jail.

Please stand down.

Simon France J

Solicitors:

M Snape, Luke, Cunningham & Clere, Wellington, email:  [email protected]

J Miller, Barrister, John Miller Law, Wellington, email:  [email protected]