R v Hekkenberg HC Nelson CRI 2005 004 4128
[2007] NZHC 1729
•10 May 2007
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI 2005 004 4128
REGINA
v
BERNARD JOHANNES HEKKENBERG
Hearing: 10 May 2007
(Heard at Christchurch)
Appearances: R G Marshall for the Crown
H W Riddoch for the Prisoner
Judgment: 10 May 2007
REMARKS ON SENTENCE OF CHISHOLM J
[1] Bernard Hekkenberg, on 2 March this year you pleaded guilty to murdering Damian Nicholson on 19 December 2005. It has been explained to me that that plea was entered on the Friday before your trial was due to commence but that the Crown was aware for some time before that that the guilty plea was going to be entered. Mr Riddoch explained that there were “hand up” depositions and that the guilty plea was only entered after a psychiatric report had been obtained from Professor Brinded. Counsel submitted that the guilty plea was entered at the first available opportunity. I will come back to that aspect.
[2] The circumstances surrounding the killing were these. For about six months you had been living in a caravan at a property belonging to your daughter and
HEKKENBERG HC NEL CRI 2005 004 4128 10 May 2007
Damian Nicholson, her partner of some five years. Also living at the property was your daughter’s son, who was aged nine years. Originally the property had been owned by you. You transferred it to them at what you regarded as a very favourable price.
[3] On the morning of 18 December the victim, Damian, asked you to find alternative accommodation in the New Year. It seems that there had been a similar request on previous occasions. In any event, there was an argument between yourself and Damian. At around 11am you went to the home of another daughter and said words to the effect “I want to kill him”. After about half a hour you left that daughter’s home and later met another daughter at around 5pm. Again, you said words to the effect “I am going to fucking kill him”. Your daughter told you to calm down. At around 7.20pm you joined a friend. You took alcohol with you and consumed it. You told your friend that Damian wanted you to leave and at around
11.30pm you told your friend that you were going to confront Damian.
[4] Obviously concerned about the situation your friend took your car keys and invited you to stay. It seems that at around 1.30am on 19 December you did agree to stay at your friend’s place. Unfortunately, however, at around 2am you left your friend’s place and walked to the home of the deceased. You went into your caravan and picked up a mallet and kitchen knife. Then you smashed the front door of the house occupied by your daughter, her son and the victim with the mallet. That noise caused Damian to get out of bed to see what was happening and in the end result you stabbed him 18 times. After that you left the property on foot and within a short time had contacted the police and given yourself up. You told the police that Damian had been winding you up and humiliating you.
[5] I am not sure whether you have read the numerous victim impact statements that have been placed before me, Mr Hekkenberg. They make extraordinarily sad reading, as all victim impact statements do. They reflect the grief, pain, shock and confusion arising within the family as a result of this senseless killing. Damian is described in various ways: fabulous person, cheerful teddy bear with an inexhaustible smile and sense of humour, hard working, always willing to help. There is reference to a shattering of the dreams of your daughter and her son. The
turmoil and torture that the whole family have gone through is self evident. On the other hand, as Mr Riddoch pointed out this morning, there are glimpses of the past where you were capable of being a loving father. Unfortunately your actions have destroyed that past.
[6] You are 49 years of age. You have 15 previous convictions, although the last ten years have been free of convictions. In 1996 you were sentenced to three years imprisonment for threatening to kill and wounding with intent; in 1993 you got six months supervision for threatening to kill; and in 1989 you were fined for assault. So violence features in your past and that does not help you at this time.
[7] The probation officer’s report describes your childhood, which in your words to him was “not the best”. There is also reference to your failed marriage. As the probation officer sees the matter, there are underlying problems relating to alcohol, a propensity for violence and an inability to control the resentment that you had bottled up. I presume that resentment refers to Damian. The probation officer also reports that you are remorseful for what you have done. Unfortunately when it comes to the killing of someone remorse after the event cannot reverse the irreparable harm that has been done.
[8] Professor Brinded has provided a psychiatric report. As usual, his report is thorough and helpful. He traces a history of depression since 1987 through to the present time. He notes that in 1995 Dr Gordon identified personality disorders with paranoid traits. In Professor Brinded’s view you were suffering from a low grade depressive condition at the time of the offending. The information before me is supplemented by a letter from your twin brother which, of course, I have read. I also note that that letter is effectively written on behalf of your mother as well.
[9] Section 102 of the Sentencing Act requires me to sentence you to life imprisonment unless that sentence would be manifestly unjust. In his extremely helpful submissions Mr Riddoch has realistically accepted that life imprisonment is inevitable. You are therefore sentenced to life imprisonment.
[10] Having passed that sentence, s103 of the Sentencing Act requires me to impose a minimum non parole period for the purpose of satisfying all or any of the following purposes: holding you accountable for the harm that you have done; denouncing your conduct; deterring you or others from the same or a similar offence; and protecting the community from you.
[11] If s104 of the Sentencing Act applies I am obliged to impose a minimum non parole period of 17 years unless I am satisfied that it would be manifestly unjust to do so. I am satisfied that s104(c) applies in this case. That paragraph applies if the murder involved the unlawful entry into, or unlawful presence in, a dwellingplace. Your entry into the house was plainly unlawful. You found it necessary to smash the front door to gain entry. It was around 2am. This is the very situation that the legislation is aimed at.
[12] Mr Riddoch suggested that the home invasion was at the lower end of the scale envisaged by the legislation. His point is that the house had previously belonged to you and that you were living in the caravan on the property which in the normal course of events would include access to the house. Where exactly the invasion lies on the scale is not critical. Had it been necessary to determine that issue I would have been disinclined to categorise it towards the lower end of the scale.
[13] The Crown suggests that two other paragraphs apply. It alleges that in terms of (e) the murder was committed with a high level of brutality, cruelty, depravity and callousness. The Crown also alleges that in terms of paragraph (g) that the deceased was particularly vulnerable. It is not strictly necessary for me to decide whether these other two paragraphs apply. Arguably they do. Possibly 18 stabbing wounds reflects an attack that is callous and brutal. And a home invasion at 2am is likely to find the victim or victims in a vulnerable condition. However, as I have said, I am perfectly satisfied that s104 applies and under those circumstances the Court of Appeal decision in R v Williams [2005] 2 NZLR 506 requires me to take two steps.
[14] The first step is to determine the degree of culpability (or blameworthiness, if you like) and whether a minimum term of 17 years or more would be justified. To
determine the culpability in this case it is necessary to look at what we call aggravating and mitigating features.
[15] As to aggravating features, I have no doubt that there was an element of premeditation in your offending. There was a considerable time delay between the incident that obviously triggered your anger and the ultimate killing. During that time you made statements to your daughters that were consistent with an intent to kill Damian. And you armed yourself with a knife before you gained entry to the house. You say that the knife was for defensive purposes. I find that hard to believe.
[16] The second aggravating feature is that there was forced entry. The third aggravating feature is that this occurred in the early hours of the morning when your victim was obviously extremely vulnerable. Fourth, this was clearly a frenzied attack involving, as I have previously mentioned, 18 stabs. Fifth, in the house was your daughter and her son, aged nine years. The next point is that the impact on those close to Damian has been incalculable, that being perfectly obvious from the impact statements. Finally, there is your previous history of violence. I note, however, that during the last 10 years there have been no convictions.
[17] On the mitigating side. First, there is your guilty plea. When I started these sentencing remarks I explained the circumstances surrounding that guilty plea. From the point of view of the family it came extremely late in the piece. It is perfectly obvious from their statements that they were extremely apprehensive about the prospect of giving evidence. On the other hand, as Mr Riddoch has explained, it was necessary for a psychiatric report to be obtained so that possible defences could be considered. I also note that Mr Riddoch was only engaged as counsel shortly before the depositions. So some credit needs to be given for the guilty plea but the fact that it was so late in the piece, regardless of the reasons, needs to be taken into account. To my mind that limits the credit that can be given.
[18] The second mitigating factor can be described as your personal circumstances. It is clear that you have had a depressive illness extending over a lengthy period. As Mr Riddoch mentioned, there have also been alcohol problems which are probably tied up with your depressive illness. I have already mentioned
Professor Brinded’s report and I take into account all the matters that he has mentioned. I need to observe, however, that there is no suggestion in any of the material that you were suffering from what might be described as a major psychiatric illness.
[19] So in terms of culpability I see this offending as well away from what might be described as the usual murder. In particular there was the home invasion during the early hours of the morning. It is difficult to be specific as to the precise sentence that I would have arrived at without the direction in s104. Even taking into account the policy of the legislation, I doubt that I would have arrived at 17 years. But I would have arrived at a point very close to that, probably in the range of 15 to 16 years.
[20] This means that I have to take the next step of considering whether a sentence of 17 years would be manifestly unjust. Mr Riddoch has argued on your behalf that it would be. On the other hand, the Crown suggests that 17 years would not be manifestly unjust. In effect, Mr Riddoch has submitted that there is very little that places this murder out of the ordinary. I am afraid that I have to disagree for the reasons that I have already given. Mr Riddoch says that once your guilty plea and personal circumstances are taken into account it would be manifestly unjust to impose a minimum non parole period of 17 years.
[21] I have considered all the arguments, both oral and written, that have been advanced. In the end result I have decided that it would not be manifestly unjust if you were required to serve a minimum of 17 years. To a large extent this reflects the home invasion and the hour of the morning at which this occurred, your past propensity for violence and the limited credit that I am prepared to give for your guilty plea. It also takes into account that while there are underlying psychiatric issues, there is no indication that you were suffering from any major psychiatric illness at the time of the killing.
[22] Therefore you are to serve a minimum non parole period of 17 years.
Solicitors: Crown Solicitor, Nelson
H W Riddoch, Nelson
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