R v Heihei

[2017] NZHC 2243

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2016-029-829 [2017] NZHC 2243

THE QUEEN

v

JASON JAKE HEIHEI

Hearing:	15 September 2017
Appearances:	J P R Scott for Crown K Ellis for Defendant
Sentence:	15 September 2017

SENTENCING REMARKS OF LANG J

R v HEIHEI [2017] NZHC 2243 [15 September 2017]

[1]      Mr Heihei, you appear for sentence today having pleaded guilty to the murder of your younger brother, Cory.  He was two years younger than you at the time of his death.  I sentence you on the basis of a summary of facts that has been prepared for the purpose of your guilty plea.  The facts stated in the summary are agreed by you to be correct.

Background

[2]      The charge was laid as a result of an incident that occurred on the evening of

22 July 2016.  You and Cory and others had been drinking at a private address and then a tavern during the course of the night.  At about 1 am you went back to your parents’ address  where,  with  your  mother’s  permission,  you  continued  drinking alcohol on the condition that you would not make a lot of noise because there were young children in the house.

[3]      The two of you carried on drinking, and then issues arose between you.  This seems to have had its genesis in the fact that you went outside and started up a go- cart engine. This caused your mother to become angry because the noise could wake the children up.  Cory told you to stop the engine. You and he then became involved in  a  verbal  dispute  that  developed  into  a  physical  fight  outside  the  house.    A neighbour who looked over the fence saw the two of you rolling around and fighting on the lawn.

[4]      You then went inside and there was some further discussion and bickering between you.  Cory then went outside with your mother to smoke a cigarette on the porch.  When they tried to come back into the house, you held the door closed and refused to let them come in until your mother swore at you and told you to open the door.  She then entered and went to check on the children.  Cory was at that stage in the kitchen area with you.

[5]      You then began berating your mother about Cory being her favourite son. Cory took exception to this and confronted you in the kitchen.  Initially the two of you bickered, but then matters developed into a fight.  Others in the house told you to go outside and sort your differences out, but another fight occurred near the kitchen bench.

[6]      Whilst the two of you were grappling with each other, you picked up a large knife with a blade that measured about 18 centimetres in length and two to three centimetres in width.  You plunged the knife into Cory’s back on six occasions.  The force used to inflict these injuries was so significant that the tip of the knife on one occasion entered Cory’s chest and this caused severe internal injuries.

[7]      Cory fell to the floor and began choking on his blood as he bled to death.  He rapidly became unconscious and unresponsive.  Despite medical intervention at the scene, he died as a result of the injuries he had sustained.

[8]      The most significant stab injury was found to be 16.7 centimetres deep.   It had entered through the uppermost part of Cory’s back and angled downwards to a point where it entered his right lung and cut a main artery.   That injury was not survivable.  Another stab wound had entered Cory’s back and pierced his liver and chest area.  The remaining stab wounds were significant, but did not penetrate any vital organs.

[9]      When  you  were  spoken  to  by  the  police,  you  were  upset  and  seriously distressed.  The summary records that you said Cory had been “running at me all night”, and was “at me all night”. You also told the police that Cory had a knife, and that he had attacked you first and cut your hand.  When you were examined by a police doctor, you were found to have two minor cuts to your fingers on your right hand.  The first was a small cut to the inside of your right index finger.  The second was a small cut on the first joint of your middle finger.

[10]     You say you accept responsibility for Cory’s death and murder on the basis that you were defending yourself, but used excessive force in doing so.   There is nothing in the body of the summary to reflect that fact, because the summary simply refers to you picking up a knife.  There are, however, your comments to the police that Cory had used the knife first and cut you.  These are supported to some extent by the injuries to your hand.  No witnesses appear to have seen the incident that led to Cory’s death, so your version of events cannot really be disputed.  On any view of the matter, however, the force that you used was grossly disproportionate to any threat Cory may have posed to your safety.

Victim impact statements

[11]     I have heard today three victim impact statements.  Two of these were from your parents, and the third was from Cory’s partner.  All three of the statements are in measured terms, but they speak graphically of the loss that all members of Cory’s family have suffered as a result of his death.  Cory’s partner suffered the loss of the person whom she was about to marry and had been with for several years.  Cory was the father of two young children.  She has been left with the very difficult task of bringing these children up on her own.   Whereas before she had a home and her partner had a stable job, she is now homeless and living in emergency accommodation.  Her circumstances are very difficult indeed.

[12]     Your parents also speak of the loss they have suffered.  They wish they could have been on the scene to stop what happened.  They have suffered the loss of one son through death, and now suffer the prospect of effectively losing access to another son because you will be in prison for many years.  This is a devastating result for all members of your family.

The issue in the present case

[13]     I accept your counsel’s submission that in the ordinary course of events this offending would attract a life sentence, together with a minimum term of around ten years imprisonment.   The circumstances of the offending do not carry any of the aggravating factors that are commonly seen when the crime of murder is committed. There is no suggestion, for example, that it carried any of the aggravating factors that would  warrant  the  Court  ordering  a  minimum  term  of  imprisonment  greatly in excess of ten years.

[14]     Your situation is complicated, however, because you are now subject to what is known as the “three strikes” legislation.   This prescribes the consequences that occur if a person commits more than one offence involving serious violence.  You are subject to that regime because on 24 June 2014 you were sentenced to four months home detention on a charge of indecent assault.  As a result, you have now committed what is known as the Stage 2 offence of murder.  This requires the Court

to order you to serve a life sentence without parole, unless to do so would be manifestly unjust.1

Approach

[15]     As both counsel have pointed out, the approach to the taken in this area is governed by the decision of the Full Court of the Court of Appeal in R v Harrison.2

In that case the Court said that the overall question to be determined is whether it would be grossly disproportionate, given the circumstance of the offending and the offender, for the offender to be the subject of a whole of life sentence.3

[16]     The approach that the Court is required to take in this situation is therefore to acknowledge that the starting point for your sentence must be a sentence of life imprisonment without parole.4    The Court can only draw back from imposing that sentence  if  it  is  satisfied,  having  regard  to  all  of  the  circumstances,  that  the imposition of that sentence would be manifestly unjust.

Analysis

[17]     In considering whether that is the case here, I have regard to several factors. The first of these is the circumstances of the offending for which you appear for sentence today.  As I have already indicated, the offending arose spontaneously out of a fight between you and your brother.  The fight undoubtedly had its genesis in long-held convictions by you about the favour in which you perceived Cory was held by other members of the family.   Nevertheless there is nothing about the circumstances of the murder to suggest that you are at risk in any way of acting in a similar way in the future.

[18]     That  fact  is  confirmed  by  your  previous  convictions.    These  are  also  a relevant factor in the present context.  You have a number of previous convictions

dating back from 2000.   Between 2000 and 2003 you were convicted on eight

1      Sentencing Act 2002, s 86E.

2      R v Harrison; R v Turner [2016] NZCA 381.

3 At [110].

4 At [109].

charges of burglary.  This tends to mark you out as a recidivist burglar in those early days.

[19]     Then, in 2004, you were sentenced on a charge of indecent assault.   That charge did not bring you within the three strikes legislation because the offending occurred prior to that legislation coming into force.  Nevertheless, I am required to take into account the circumstances of that offending as part of my overall consideration of whether a whole of life sentence in the present case would be totally disproportionate.

[20]     That offending has some worrying characteristics, because it occurred when you were once again in a state of intoxication.  You were at a party at an address and had become inebriated.  During the course of the evening you and another person went across the road with the intention of burgling a house to steal property from it. You entered the house and found a female occupant asleep on a couch downstairs. You and your associate took that opportunity to indecently assault her by touching her inappropriately while she slept.   Your associate then left the address and it appears that you went to sleep.

[21]     When you woke up, you discovered that the female occupant of the address had left the room and had gone up to her bedroom.  You went up to the bedroom and got into bed with her.  You began touching her under her underwear in the genital region.  She believed that you were her partner who had only just got home and she pushed  you away.   When there was knocking at the door,  you left the address through a rear door.  The complainant only discovered that another person had been in bed with her when she went to the front door and found her partner there.  They then went over the road to the party and identified you as being the person who had been in bed with the complainant.   That offending led to you being sentenced to three years imprisonment.

[22]     The indecent assault that brought you within the purview of the three strikes legislation occurred on 1 March 2013.   The offending in that case was much less serious.  Again, however, you were intoxicated.  The 14 year old complainant had come to the address where you had been socialising.  She went to bed on a mattress

and you also went to sleep at the same address.   You then crossed to where the complainant was sleeping and got under the blanket.  You began touching her in the genital area above her clothing.  She then woke up and discovered what you were doing.      You   immediately   left   the   scene   and   acknowledged   responsibility subsequently for what had happened.  On that occasion you received a sentence of four months home detention.

[23]     Looking at your criminal history, therefore, I would take you as a recidivist burglar who opportunistically offends against female victims when under the influence of alcohol.  Nobody would have suspected or predicted that you would one day be before the Court on a charge of murder.  Certainly there is nothing in your criminal history to suggest that you are likely to be again.

[24]     Nevertheless, all three of the serious offences that you have committed have arisen whilst you were under the influence of alcohol.  Clearly you have a real issue with alcohol, and the prison and parole authorities will need to ensure you address this before you are released.  Overall, however, I do not take your criminal history to be supportive of a whole of life sentence.

[25]     The next issue is that you are 31 years of age.  You are therefore a relatively young man and are likely to live for another 40 to 50 years.  If you were required to serve a life sentence without parole, it would effectively mean a sentence of that duration.   That is far longer than would be the case under the usual sentencing regime.

[26]     Next, I am entitled to take into account  your guilty plea.   Your counsel explains that you initially endeavoured to persuade the Crown to accept a guilty plea to a charge of manslaughter.  The offer was referred to the Solicitor-General, who apparently indicated it was not acceptable.   You then entered your plea of guilty, albeit at a relatively late stage.   I take the plea as being an acknowledgement of responsibility for what you have done.   That, too, is a factor pointing against the imposition of a sentence of life imprisonment without parole.

[27]     I then take into account the views of the victims.  One of the issues that arises in this area is that, when an offender is eligible for parole, victims are notified.  They then have the opportunity to attend parole hearings and/or to make submissions to the parole authorities.   That can be a very distressing experience for victims of serious offending, and one of the objectives of the three strikes legislation is to ensure that in appropriate cases victims are not placed in that position.  Your case is somewhat different, because your victims are essentially members of your wider family.  They comprise your brother, who has been robbed of his life at a young age, together with his partner, who has many years of difficulties ahead of her as a result of your actions. They also comprise your parents and siblings.

[28]     Your parents have both said they still support you.  They have lost one son and do not want to lose another completely.  Your brother’s partner, not surprisingly, is not so charitable.  She says she will not forgive you, and she wants to see justice for Cory.  Overall, however, I consider that the views expressed by your victim are also not consistent with the imposition of a whole of life sentence.

[29]     Taking all of those factors into account, I have no doubt as to the outcome. The Crown agrees.  This is a case in which it would be completely disproportionate to impose a life sentence without the prospect of parole having regard to all of the factors that I have mentioned.

Sentence

[30]     On the charge of murder to which you pleaded guilty, you are sentenced to life imprisonment.  I make an order under s 103 of the Sentencing Act 2002 that you are to serve ten years before being eligible to apply for parole.

[31]     Unfortunately,  a second  strike warning was  not  given at  the time that  a conviction was entered.   I am therefore now required to give you that warning. Given your conviction for murder, you are subject to the “three strikes” law.  This is now your final warning which will explain the consequences of another serious violence conviction.   You will also be given a written notice outlining these consequences which lists the “serious violence” offences.

[32]     First, if you are convicted of any serious violent offence other than murder or manslaughter, you will be sentenced to the maximum term of imprisonment for each offence.  That will be served without parole or early release unless to do so would be manifestly unjust.

[33]     Secondly, if you are convicted of manslaughter committed after this warning, you will be sentenced to imprisonment for life.  The Judge must order you to serve at least 20 years imprisonment unless the Judge considers it would be manifestly unjust to do so, in which case the Judge must order you to serve a minimum term of at least ten years imprisonment.

[34]     If you are convicted of murder after this warning then, firstly, you must be sentence to imprisonment for life.   The Judge must also order you to serve the sentence without parole unless it would be manifestly unjust to do so.  Secondly, if the Judge finds it is manifestly unjust to do so, the Judge must impose a minimum period of imprisonment of at least 20 years unless that would be manifestly unjust in which case the Judge must sentence you to a different minimum period of imprisonment.

[35]     Fourthly, if you are sentenced to preventive detention, you must serve the maximum term of imprisonment of the most serious offence of which you are convicted unless a Judge considers that would be manifestly unjust.

[36]     A written notice setting out those consequences will be given to you before you leave today.

[37]     Stand down.

Lang J

Solicitors:

Crown Solicitor, Whangarei

K Ellis, Whangarei