R v Hemara HC Wanganui CRI 2009-083-540
[2010] NZHC 432
•12 March 2010
IN THE HIGH COURT OF NEW ZEALAND
WANGANUI REGISTRY
CRI-2009-083-540
THE QUEEN
v
ANA ANDREA HEMARA
(At Wellington)
Counsel: L C Rowe for Crown
S J Ross for Prisoner
Sentence: 12 March 2010
SENTENCING NOTES OF DOBSON J
[ 1 ] Ms Hemara, you appear for sentencing this morning on your conviction for
murder and a further conviction for obstructing the course of justice. These charges arose as a result of your conduct on 14 February 2009. You pleaded guilty promptly to the charge of obstructing the course of justice and you were found guilty of murder by a jury in the Wanganui High Court on 5 February this year.
On 14 February 2009, you were living with Michael Christison, a partner you
had recently moved in with, at Titoki Street in Wanganui. During the day, you invited a new neighbour, Heather Simons, to come over for drinks that evening, and she duly arrived at about 6pm. Ms Simons’ daughter confirms that Ms Simons was still fine at your place at about 9pm that evening, but sometime thereafter you savagely beat her to death.
R V HEMARA HC WANG CRI-2009-083-540 12 March 2010
A post mortem determined that Ms Simons died from multiple areas of blunt force trauma to her head. The pathologist identified more than 60 separate sites of injury, without being able to express an opinion on how many actual blows were inflicted. A later explanation you gave to the Police confirmed that you kicked, punched and stomped on your victim. You acknowledged that you went “hard out” at her, and that you were aware of the sort of injuries your attack was causing. Police photographs of the scene produced at your trial showed that substantial volumes of Ms Simons’ hair had been pulled out in the course of your attack, consistent with you savagely attacking a person who was unable to adequately defend herself.
I accept what Mr Rowe has said about the reconstruction this morning, that a good part of the attack must have occurred whilst Ms Simons was at least face down on the floor, and possibly already unconscious.
The Crown’s reconstruction of the events does not establish the period of time between the end of this savage attack on Ms Simons, and you and your partner calling an ambulance to obtain medical assistance for her. I was left with the impression that that delay was more likely to be a matter of hours rather than a matter of minutes, and who knows what different outcome may have been achieved, had there been an immediate medical intervention.
By the time the ambulance officers arrived, it is apparent that bleeding within the brain had caused substantial swelling. Ambulance officers were unable to force Ms Simons’ eyes open to check her medical condition, because of the extent of the swelling around her eyes caused by your attack on her. Ms Simons was flown from Wanganui to Wellington Hospital, where her injuries were assessed as so serious that life support was terminated and she died three days after your attack on her.
Between the attack and calling the ambulance, you and Mr Christison had changed Ms Simons’ clothes in an attempt to disguise the origins of the attack, and threw her original clothes into a reserve at the rear of the property. When the Police and ambulance officers arrived, you were attempting to mop up the very substantial blood staining in the lounge of the house. You and Mr Christison initially told the
Police that you had found Ms Simons outside in a badly beaten condition, and had brought her into your house. Relatively soon after initial contact with the Police, you admitted that you had attacked her.
You and Mr Christison were both charged with obstructing the course of justice in relation to the misinformation given after your attack on Ms Simons, and to that charge you entered an early guilty plea. That is a conviction in respect of which the maximum penalty is seven years’ imprisonment. Mr Christison has been sentenced to 12 months’ imprisonment on his conviction on that charge.
You were also charged with the murder of Ms Simons. In relation to that charge, you indicated at the outset of your trial that you were prepared to plead guilty to manslaughter, but denied that your offending amounted to murder. At the end of the trial, the jury found you guilty of murder.
[ 10] In all sentencings, the Court is directed by sentencing purposes and principles that are contained in ss 7 and 8 of the Sentencing Act 2002. As is generally the case, those purposes require me to provide for a sentence that will deter you and others from committing similar offences in the future, to hold you accountable for your actions and to protect the community. Even for the lengthy term involved when sentencing on murder, the Court is directed by those sections to impose the least restrictive outcome that is appropriate in the circumstances considering consistency between this case and sentences imposed in cases that can be treated as similar to yours.
[ 11 ] As you have hopefully followed from the course of submissions made this morning, when sentencing for murder there are a series of further, specific considerations I am obliged to undertake under ss 102, 103 and 104 of the Sentencing Act, as to the length of the non-parole period that should be imposed.
[ 12] Section 102 creates the basic presumption that a conviction for murder is to result in a sentence of life imprisonment unless the circumstances of the offence and the offender would render such a sentence manifestly unjust. That exception creates a high hurdle. Mr Ross has not contended that it applies in your case, and I am
satisfied certainly that no case could be made out for a sentence of life imprisonment being manifestly unjust given the circumstances of your offending.
[13] Next, s 103 provides that when imposing life imprisonment, the Court must stipulate a minimum non-parole period, which may not be less than 10 years, and then the section goes on in these terms:
...must be the minimum term of imprisonment that the Court considers necessary to satisfy all or any of the following purposes:
(a)holding the offender accountable for the harm done to the victim and community by the offending;
(b)denouncing the conduct in which the offender was involved;
(c)deterring the offender or other persons from committing the same or a similar offence;
(d)protecting the community from the offender.
[ 14] Before applying those criteria to a consideration of the appropriate non-parole period in your case, it is useful to go on to s 104, which provides the sentencing directions for the most serious convictions for murder.
[15] Section 104 provides:
104 Imposition of minimum period of imprisonment of 17 years or more
The court must make an order under section 103 imposing a minimum period of imprisonment of at least 17 years in the following circumstances, unless it is satisfied that it would be manifestly unjust to do so:
(a)if the murder was committed in an attempt to avoid the detection, prosecution, or conviction of any person for any offence or in any other way to attempt to subvert the course of justice; or
(b)if the murder involved calculated or lengthy planning, including making an arrangement under which money or anything of value passes (or is intended to pass) from one person to another; or
(c)if the murder involved the unlawful entry into, or unlawful presence in, a dwelling place; or
(d)if the murder was committed in the course of another serious offence; or
(e)if the murder was committed with a high level of brutality, cruelty, depravity, or callousness; or
(ea) if the murder was committed as part of a terrorist act (as defined in
section 5(1) of the Terrorism Suppression Act 2002); or
(f)if the deceased was a [constable] or a prison officer acting in the course of his or her duty; or
(g)if the deceased was particularly vulnerable because of his or her age, health, or because of any other factor; or
(h)if the offender has been convicted of 2 or more counts of murder, whether or not arising from the same circumstances; or
(i)in any other exceptional circumstances.
[ 16] The argument this morning has focused on two of these circumstances of murder that I consider to be appropriate. And those are, first if the murder was committed with a high level of brutality, cruelty, depravity or callousness, or if the deceased was particularly vulnerable because of his or her age, or because of any other factor.
[ 17] I have carefully considered the elements of your offending, as emphasised on behalf of the Crown, that are said to reflect a high level of brutality, cruelty, depravity or callousness, and secondly that Ms Simons was a victim who was particularly vulnerable because of her physical impairment with cerebral palsy and the unexpected nature of the attack on her.
[18] In this assessment, I have the advantage of numerous decisions evaluating just how serious or outrageous the murderous conduct has to be before being treated as coming within these criteria for the purposes of s 104.
[ 19] In a case called R v Frost, the sentencing Judge considered the meaning of brutality and callousness and said: [1]
The dictionary definitions of the term “brutality” refer to an unreasoning or senseless behaviour by a human being. Callousness is defined as a “hardened state of mind, a want of feeling and insensibility”. The underlying concept captured by the dictionary definition in relation to “callousness” is a “numbness of the soul”.
[1] R v Frost HC New Plymouth CRI-2007-043-471, 9 April 2008 at [30].
As to the relative vulnerability of a victim, I am conscious of what the Court of Appeal has said in a case called R v Williams:[2]
Something more is required to make a victim “particularly vulnerable” in terms of s 104(g) than an unexpected attack by a person whom the victim trusted, in circumstances where the victim could not defend himself.
[2] R v Williams [2005] 2 NZLR 506 at [89].
In reflecting these two aspects of the relative seriousness of your murderous conduct, I am mindful of the huge loss that Ms Simons’ death has caused to her daughter and her family, as starkly expressed in the three victim impact statements that I have received from her two sisters and her daughter, and which I have read carefully.
This was utterly mindless violence of the most serious kind. You extended hospitality to a new neighbour so that she entered your house with her guard down. You then saw her, perhaps through a fog of alcohol, as a threat to your relatively new relationship with Mr Christison. Thinking that a neighbour is “coming on” to your partner is absolutely no excuse for embarking upon a murderous attack on her. It is not even the beginnings of a rational explanation. This was a very serious, mindless form of violence that New Zealand society should and must condemn in the strongest terms. To carry on the attack when she was vulnerable on the floor, and knowing the sort of damage your blows could cause, must have involved a “numbness of the soul” on your part.
I am inclined to accept, as Mr Rowe has submitted this morning, that this was not a frenzied attack because, as you explained to the Police, you were able to stop half way through, take rings off your victim’s fingers, put them on your own and then resume the attack. However, you were bare foot and no weapon was used. I consider that is material in distinguishing this case from the case of R v Zhou that has been put to me this morning.[3] There is some evidence, and Mr Rowe is right that it is equivocal, that Ms Simons made attempts to defend herself. But you started the attack without warning and it seems that very soon she was defenceless on the
ground. Certainly, with the limited movement and less strength down her right side, to an objective bystander Ms Simons was vulnerable by virtue of that impairment. However, the concept of particular vulnerability in s 104(g) is reserved for that even more sickening category of case in which a cowardly attacker exploits a victim with a more demonstrable disability, such as the old or infirm, the blind or the wheelchair-bound, or the very young. And I will make reference to the analysis in R v Weatherston on the scope of vulnerability.[4]
[3] R v Zhou HC Auckland CRI-2005-092-10395, 13 October 2006.
[4] cf R v Weatherston HC Christchurch CRI-2009-012-137, 15 September 2009 at [37].
Ms Hemara, after careful consideration, I am satisfied that you do not come within s 104. I do accept it was valid for the Crown to submit s 104 did apply, and you have only avoided that provision by a small margin. I intend no disrespect to the memory of Ms Simons, or to the hurt and sense of loss for her family and friends, when I determine that the features of your callous and brutal attack on her are not, in my view, sufficiently serious to bring you within those two paragraphs of s 104.
But I am next obliged to consider a minimum non-parole period in the range between 10 and 17 years.
Mr Ross has submitted on your behalf that a minimum non-parole period in a range between 13 and 14 years would be appropriate. The Crown has contended for a period of at least 15 years.
Although the relative level of brutality and callousness of the circumstances in which the murder was committed, and the level of vulnerability of Ms Simons, keep you just below the extent of those features that would bring s 104 into play, they are still serious aggravating features of your offending and clearly justify a minimum non-parole period well longer than 10 years.
The Crown urged a comparison with the case called R v Houma.[5] There, the victim was punched and kicked in the head without warning, and was struck again after he had regained consciousness. The attacker demonstrated a high degree of brutality and callousness, falling short of s 104 by a narrow margin and was also
callous in simply leaving the victim for dead. A minimum term of 15 years was imposed by the trial Judge in that case. That was reduced by the Court of Appeal by one year, largely to address disparity between the principal offender and others who had been convicted in the same case.
[5] R v Houma [2008] NZCA 512.
The Crown has also invited analogy with another recent Wanganui murder conviction in which I set a starting point of 14 years non-parole period for the principal offender, increasing it because of his previous convictions.[6] In that case, what started as an unprovoked attack by two males on a third with just their fists and their feet, was finished by the use of a short tomahawk. Although the circumstances are different, I consider your culpability is in the same range, if just a little less serious. I therefore settle on a starting point for the murder, at 13 years and six months.
[6] R v McCallum HC Wanganui CRI-2008-083-2794, 12 February 2010
However, before deciding on a finite sentence, I will also reflect on the appropriate outcome on the conviction for obstructing the course of justice. The circumstances of both offences are closely linked, both in time and in the context in which they arose. I am satisfied that a concurrent sentence should be imposed on this lesser conviction. I have noted that the maximum penalty for obstructing the course of justice is seven years, and you will be aware that Mr Christison was sentenced to 12 months.
The circumstances of what you did in changing the victim’s clothes, disposing of them, telling an untrue account in the course of the 111 call to the ambulance service, and when the Police initially arrived at the address, are relatively serious examples of obstructing the course of justice. As I raised with Mr Rowe, there are suggestions in the recording of the 111 call that Mr Christison perhaps took the lead in misleading the Police. That says nothing about his non-involvement in the attack on Ms Simons.
On any concurrent sentencing, I must be mindful of the totality principle. Because the non-parole period for your murder conviction is relatively so serious, I am satisfied that a relatively shorter addition to the total sentence would have been.
appropriate than might have been the case if the conviction for obstructing the course of justice was to be dealt with on its own. In the end, I consider that an addition of six months to the 13 year, six month starting point I have reached for the murder conviction would be adequate to mark the seriousness of the total offending, making a total of 14 years.
Having dealt with all the aggravating features, I lastly analyse whether there are any personal aspects mitigating, in your favour, what the final sentence should be.
Your only possible explanation of alcohol-fuelled jealousy is not any form of explanation at all. Nor can it be a justification. Your conduct is to be condemned in the strongest possible terms. As to your personal circumstances, at the age of 44 you have no previous convictions. The thorough pre-sentence report suggests both a history of violence in the context of domestic relationships, and the prospect of further violent offending in terms of the risk you present of re-offending.
The pre-sentence report acknowledges an extent of depressive illness, and Mr Ross advises this morning that the current analysis is that there is a bipolar disorder. Again, that cannot be a matter of excuse, Ms Hemara. However, an illness of that type does reflect on the ability of a prisoner to cope with a lengthy sentence and can be an influence at the margins as to how long it ultimately should be.
Having heard the tape of the 111 call played at your trial, I consider there was an element of immediate remorse, although that has to be countered by the lack of any later remorse when reflecting on the seriousness of what you have done. I find that any remorse after the event focuses on your being sorry at the predicament you find yourself in, rather than having any compassion for the life you have taken and the hurt for those left behind.
A complicating factor is the initial attempts by you and Mr Christison to avoid responsibility for the offending, but once you are separately sentenced for the conduct reflected in the conviction for obstructing the course of justice, some account can be taken in your favour of what you did thereafter. Quite quickly, you
were relatively co-operative with the Police, and have been prepared at all stages since then to accept your part in the physical conduct, contesting only the existence of murderous intent. Though it might not seem so to Ms Simons’ family, this meant that the trial was not as traumatic, or as long, as it might have been.
These circumstances cannot justify anything in the nature of a discount for a guilty plea, but in one sense some credit should be given for your relatively full co-operation with the Police. Such credit is not inconsistent with recognising your criminality in deceiving the Police initially, for which you are to be separately sentenced. So, a modest credit for eventual co-operation, for your previous lack of convictions, and for the depressive illness with which you will have to struggle, is appropriate. I consider that those features warrant reducing the starting point of 14 years by six months.
I accordingly sentence you to life imprisonment, subject to a minimum non-parole period of 13 years and six months on the murder conviction, with a sentence of six months’ imprisonment on the conviction for obstructing the course of justice, with that to be served concurrently with the longer sentence for murder.
You may stand down.
Dobson J
Solicitors:
Armstrong Barton, Wanganui for Crown
Stephen Ross & Associates, Wanganui for Prisoner
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