R v Ham HC Rotorua CRI 2009-069-1181

[2010] NZHC 1846

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CR1 2009-069-1181

THE QUEEN

V

DOUGLAS KOTAHI HAM

Hearing:         20 October 2010

Appearances: A J Gordon & L L Owen for Crown

J P Temm for Prisoner

Judgment:      20 October 2010

SENTENCE OF KEANE J

Solicitors:

Crown  Solicitor,  Rotorua

R V DOUGLAS KOTAI-11 HAM HC ROT CR1 2009-069-1181 [20 October2010]

[1]      Douglas Ham, you appear for sentence, after trial, for murdering your stepson James Galloway, near Lake Rotoaira at the canal, by stabbing him once to the chest with a boning knife in the early hours of Saturday, 23 May 2009.

[2]     The day before you and your wife, James’s  mother, Christine, had come to stay with James and his partner Venus and their three children at Turangi. You and your wife, who then lived in Wanganui, had just been laid off for the season at the freezing works. That was of real concern to you because you had debts to meet. Your own parents happened to be with you at the time visiting Wanganui. Your father suggested that you return with them    to Turangi, an issue about which you and your wife disagreed.

[3]      On the Friday you arrived at Turangi at the house of James and Venus and their children in the early afternoon. Your wife, Christine, and Venus shared a can of Bourbon mix. At perhaps 5.45 pm you went to a liquor outlet. You bought 24 small bottles of beer for yourself and 24 cans of Bourbon mixes for Venus and Christine. These, in contrast to the can they had earlier, had a much higher alcohol content. You and they then drank together and you shared the Bourbon mixes, to which you were not accustomed. You very much regret that. You believe that had some part to play in what happened later.

[4]     At about 7.30 pm you and Venus’s brother, who lived at the house, went to the local pub to watch a Super 14 game. You had more to drink. You returned with him at the end of the game. By then James, who had been at work but had had a few drinks afterwards and shared two joints with a friend, had arrived home. He was not feeling especially well and was lying on a couch in the lounge. There appears to have been more drinking. Then you and Christine dropped off Venus and her brother at a party.

[5]     Venus got a ride back later. Her brother remained at the party. By midnight, after apparently more drinking, you all settled for the night. Venus went to the bedroom she shared with James. James remained where he was on the couch. In the first instance he had a child with him. Another was with you and Christine, sharing a

double bed backed up against the couch. Christine’s head must have been close to

James’s head. Your head must have been close to his midriff.

[6]     At about 1 am, as you recall, you woke to find yourself with your head pressed to James’s groin. His fly was open. You had your hand on his penis. You had the impression you were having, or attempting to have, oral sex with him. You attribute this to the fact that, as some defence witnesses confirmed, when you are highly intoxicated you can leave your bed and end in the bed of others. This, to your mind, as I understood you, was a more extreme instance.

[7]     In any event, just as you woke, as you recall, James also woke. He had been unaware of what you were doing until  then. You both were shocked, you say. Neither of you said anything. He appears to have gone, then or soon after, to the bedroom he shared with Venus. You remained where you were. That something like this happened appears clear. Christine recalls she woke to find you sitting by the fire. You said you were cold and that something horrible had happened, but you were not sure. Then you returned to bed.

[8]     Towards 5.30 am you woke Christine. You told her that your father had sent you a text message. He, you said, was out fishing at Lake Rotoaira and he had become stuck. He had asked you to go out to help him. Christine offered to go with you. You said, ‘no’, you would take James. You went to James and woke him. He agreed to go with you. By then you had taken from the kitchen the boning knife.

[9]     Together you travelled perhaps 20 kilometres to Lake Rotoaira. That was where James suffered on the road, at the side of the canal, the five centimetre stab wound to his chest that was the irreversible cause of Ins death. The issue at trial was how he came to suffer that injury. The Crown’s case was that  you inflicted it intending to kill him, or at the least, intending him bodily injury and being reckless as to death. You contended he had died accidentally by his own hand and that you had played no part in it.

[10]    What  was  then  and  remains  clear,  on  the  Crown’s evidence,  is  that immediately James suffered that injury you placed him in the front passenger seat

facing backwards with his chest  over the lower  seat1 in an effort to stop any further flow of blood. You drove back to Turangi and went straight to your parents house. You admitted to one, or both, that you had stabbed him. By that stage, when your father went to the car with you, it was clear that James was dead.

[11]   Your father told you to go to the police station. You went there immediately. Your mother rang an ambulance. The ambulance passed the police station on its way to your parents house. It was flagged down. You told the ambulance officer you had stabbed James at Lake Rotoaira perhaps 15 minutes before. You said you had not meant to. You wanted to bring him back. Family members on both sides began to gather before the police arrived and you made similar admissions to one or more. All acted with great restraint and compassion to you as well as to James and his family. Your wife Christine, however, was very greatly affected. She confronted you very directly.

[12]    You made admissions to the two police constables first to arrive. In a video interview that morning you spoke of the incident at the house. You spoke of going to the lake. You spoke of a struggle. You spoke of James having the knife at some point and of James falling over. However, you were very vague. You said many times you could not remember; you could not  be more specific. You could not explain how James had died.

[13]    After that  you took police officers to the road  by the canal where they discovered the knife and later extensive forensic examination of the scene revealed that there were blood stains right across the road.

[14]    The Crowns case was, against that evidence, that you had lured James to the lake by inventing the text from your father, who had been home all night. You must have intended to harm James, the Crown said, because you took the knife. It was plainly capable of being lethal. That you stabbed James, the Crown said, was clearly established by your own admissions when you returned to Turangi. The stabbing could not have been accidental. It had to be either intentional, or reckless as to death.

[15]     When you gave evidence you agreed immediately that the text was invented You said you had wanted to get James out of the house to apologise to him. That proved to be worthwhile. You and he reconciled soon after you left Turangi. You did not take the knife to harm him. You were very deeply depressed. You were intent on suicide. You were going to kill yourself after you had reconciled with James. At the lake, you said, you only stopped because there was fog and it became so dense you did not know where you were. You did not even know whether you could turn round. You had to stop and get out.

[16]     All the while, you said, you had the knife in a pocket across the front waist of your hoody and it fell out. James, with whom you had been discussing your instinct to suicide, thought you were going to use it. He grabbed it and moved backwards. Then he fell back, holding the knife, near to his upper chest. It must have entered his chest the five centimetres that it did as a result of his fall. You explained your admissions as expressions of guilt about what had happened.

[17]    The jury clearly rejected your account. It clearly found by its verdict that you either stabbed James intending to kill him or you were intent on causing him injury and reckless as to Ins death. Consequently you are now for sentence for the offence with which you are charged.

Victim impact statements

[18]  I have very detailed victim impact statements from James’s partner Venus, from her sisters, from wider members of her family. I have victim impact statements from James’s father, which he read out today, from his stepmother, his brothers and others. They make harrowing reading. These statements reveal that James’s death has caused incalculable loss.

[19]    The loss Venus has suffered especially is made infinitely worse by the fact that James’s death has deprived their children of a father. His death, and her grief, have had a profound effect on them. James was clearly deeply loved and admired. He was at the centre of his family and on the threshold of life. That he died so

unexpectedly and so unnecessarily is something the family cannot come to terms

with.

Pre-sentence  report

[20]     Your pre-sentence report says that whatever grief you may feel about James’s death yoursel you deny that he died at your hands. You continue to say that  his death was the result of an accident, in the circumstances you described at trial but which the jury  rejected. To that extent you do not display any remorse for this offending. Remorse, on your account, does not begin to come into play.

[21]    Your pre-sentence report is also flank about the issue that became prominent at your trial, your sexual orientation, Before you formed your relationship of some seven years with James’s mother you were in settled homosexual relationships. Your relationship with her was a very marked departure. In your pre-sentence report you are recorded as saying that this issue has been the most significant of your life. You have spent your life ‘trying to find yourself.

[22]    Though this was a prominent issue at trial, and though clearly in your mind, and it appears objectively, there was the incident at the house in which you sexually assaulted James when he was asleep, that does not explain why, once that happened, you lured James away with a lie about the text. Or why you took the knife. Or why you were intent, as the jury found, on inflicting harm on James.

[23]    James accepted you when you became his mother’s partner. You and he became friends. Pie was your best man at your wedding. But clearly your feelings towards him were not  straightforward. You yourself said, when interviewed the morning after these incidents, that your relationship with James that night had been

‘too close’.  That still does not begin to explain why you might have wished him harm.

Purposes, principles  and issues

[24]    It is not my task on sentence to attempt to resolve that enigma. My task is to impose on you the sentence the law requires for your offence. To do that I must hold you accountable for the harm you have done. I must promote in you, if I can, some sense of responsibility. I must denounce what you have done and impose a sentence that deters you and others. In that I must take account of the sentences that are imposed in other cases of this seriousness.

[25]    The gravity of your offence and the loss that has resulted is such that I cannot begin to assist you in your rehabilitation and reintegration. Nor, more especially, can I begin to redress the harm you have done, not merely in taking James’s life, as the jury found you did, but the resultant harm to the family, Venus and the children especially. Their loss, very sadly, like the loss of James’ life, is irreversible. It is something with which they will have to live for the rest of their lives.

[26]    On sentence I must focus on what the law requires of me and I begin with this. The taking of a person’s life is the most serious offence in our criminal code. But, even then, the law requires each case to be looked at individually and two issues arise. The first is whether life imprisonment, the presumptive sentence, ought to be imposed or whether that would be manifestly unjust. The second is whether the minimum term that this sentence carries, if it is imposed, ought to be ten years, as the law normally requires, or something greater.

Life imprisonment

[27]     The  Crown  contends  that  your  offence  calls   for  a  sentence of  life imprisonment. Or, to put it the other way, that to impose that sentence would not be manifestly unjust. Your counsel accepts that it is only in the exceptional case, once a life has been taken, that anything less than a life term can be imposed. He does not contend that this is such a case. That concession is well made. I am in no doubt that you must be sentenced to life imprisonment. The evidence as a whole, and your own admissions, make that very clear.

[28]     For this offence to have come about at all, you had first to lie to     James,  as

you did to Christine, about the text from your father. That involved an abuse of the trust of both. There had to be also the knife. You had to choose to take that with you. That too shows some element of calculation. You then drove James 20 kilometres or so from the house, a considerable distance. You must that night have been intent on causing James serious harm, if not his death, and when you returned to Turangi you admitted you had stabbed him.

[29]    You may have used the knife once only, You may not have stabbed James as deeply as you might have stabbed him. You may have repented immediately what you did. You may have attempted to save James’s life. You may have accepted that with that went the possibility that you would be apprehended. None of that, however, can be equated with remorse for James’s death because, of course, you deny that remorse has any part to play. James, you say, suffered an accident.

[30]     Nothing less than a sentence of life imprisonment, therefore, will serve to hold you accountable for this offence and to answer the other statutory purposes. The question then becomes whether in excess of the normal minimum term the law requires, ten  years, is called for  to hold  you  accountable for your  offence, to denounce it, to deter and to protect the public. Also, whether there are any especially aggravating features that make a higher minimum term mandatory, like exceptional brutality or calculation or exceptional vulnerability.

[31]     The Crown contends, having considered all of those issues, that a minimum term in excess of ten years cannot be justified in your case as a matter of law and

your counsel makes the same submission. That is my own conclusion.

[32]    You must be sentenced to life imprisonment for taking James’s life. But the fact that there was one stab wound and not more, some level of calculation but not more, the absence of any other aggravating crime, and the fact that you did what you could to redress what you had done, all come into play. None excuse your offence, or reduce its seriousness.  They do place you in that category of offender for whom the statutory minimum term of ten years is appropriate and nothing higher could be justified.

[33]  Douglas Ham, for the offence for which you appear, you are sentenced to life

imprisonment with a statutory minimum term of ten years.

P.J.Keane  J