R v Hohua
[2017] NZHC 3169
•13 December 2017
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2016-087-001867
[2017] NZHC 3169
THE QUEEN v
ROBERT ROUPERE HOHUA
Hearing: 13 December 2017 Appearances:
R Jenson for the Crown
G Tomlinson for the Defendant
Sentence:
13 December 2017
SENTENCING NOTES OF HINTON J
Counsel/Solicitors:
A J F Perkins QC, Auckland Crown Solicitors, Tauranga
Gowing & Co Lawyers Limited, Whakatane
R v ROBERT ROUPERE HOHUA [2017] NZHC 3169 [13 December 2017]
Introduction
[1]Mr Hohua, you may remain seated until I ask you to stand at the end.
[2] You have been found guilty of murdering Ms Marie Harlick. You now appear for sentence.
[3] Before I begin with the formal sentencing process, I would like to acknowledge the presence of the members of Ms Harlick’s whānau and her friends who are here today. You have lost a dear mother, daughter, sister, friend and relative. “E nga whānau e hui nei ki roto I tēnei kooti.
Tēnā koutou.
Ka nui te aroha ki a koutou katoa. Kua paangia ki tēnei aituaa kino. Nāreira haere ngā mate.
Nau mai e te hunga ora.
To the families gathered in this court, greetings.
I have great aroha for all who have been touched by this terrible tragedy. And so farewell to the dead; and
Welcome to the living.”
Facts
[4] I must first refer to the facts of the case. I understand it will be difficult for those present to hear this yet again, but it is unfortunately unavoidable. I need to do it in my sentencing.
[5] Mr Hohua, you were in a relationship with Ms Harlick for approximately two years. You both moved to Wellington Street, Opotiki, approximately two months before Ms Harlick’s death. Ms Harlick’s 19-month-old daughter lived with you.
[6] At the time of the offending, you were bailed to a nearby address in Opotiki. This was because of your having assaulted Ms Harlick with intent to injure. Your bail conditions required you to not associate with or contact Ms Harlick. You were also subject to a curfew and residential requirements.
[7] On 22 November 2016, you were at Wellington Street with several others, including Ms Harlick. You all consumed alcohol heavily from the afternoon into the evening.
[8] Just before 7.00 pm, you realised you needed to return to your bail address to comply with your curfew conditions. You left with the other men who were at Wellington Street, and with Ms Harlick’s 19-month-old daughter. The women, including Ms Harlick, remained at Wellington Street and continued to consume alcohol.
[9] Later that night you became fixated on the idea that Ms Harlick was being unfaithful to you. You returned to Wellington Street with the 19-month-old, arriving sometime before 10.00 pm. You were angry to find the front door locked. You knocked on it, but no-one answered.
[10] You then smashed the front door pane, opened the door, and entered the house. You searched for Ms Harlick. Shortly after, she came through the back door. She was heavily intoxicated. You asked her where she had been. She did not answer. That made you even angrier.
[11] You then punched Ms Harlick several times in the head, causing her to fall over and lose consciousness, or at least become semi-conscious. You then used either your fists or feet, or both to attack her. You stomped on her. The attack was, at least in substantial part, to Ms Harlick’s head. There were 19 injuries to her face and 17 injuries to various parts of her body. You delivered a minimum of eight to 10 blows to her face. She suffered fractures to her jaw bone, nasal bones and facial bones. Some of the blows, particularly to Ms Harlick’s jaw, were of severe force.
[12] You repeatedly shouted at Ms Harlick while assaulting her, and yelled words to the effect of “Get up or I’ll kill you”.
[13] Ms Harlick started to audibly choke on her own blood. You attempted to provide CPR, and then dragged her to the bathroom. You placed her in the bath and attempted to wash blood from her face and head. You left her so you could tend to the 19-month-old, who was strapped to her stroller in the lounge. You then returned to the bathroom. You thought Ms Harlick was falling asleep, and the pathologist’s evidence was that she would have appeared that way because of the blood loss in her abdomen area. You moved her to a mattress in her daughter’s room and placed a blanket over her. You left her there with her daughter.
[14] A young man visiting the neighbouring property, called the police at 9.58 pm after hearing loud banging or stomping noises. He called the Police a second time at
10.06 pm because it was getting worse and he heard a man’s voice threatening to kill someone. The police arrived at around 10.20 pm. You attempted to flee, but you were tasered and detained. You told them no one else was at the house.
[15]The assault lasted for about 20 minutes.
[16] Ambulance staff pronounced Ms Harlick dead at around 10.40 pm. The pathologist determined the cause of death as multiple blunt force trauma and said Ms Harlick most likely bled to death from a blow to her midsection, which had caused her mesentery to rupture and caused her to bleed out.
Victim impact statements
[17] Mr Hohua, when you murdered Ms Harlick, you also caused great harm to a number of other people.
[18] There are a number of victim impact statements before the Court, from some of Ms Harlick’s daughters, her sisters, brother, mother, aunt, ex-partner and a family friend. I have read them carefully, and some you have heard read in Court today.
[19] Hapuiti Allen, Ms Harlick’s mother, thinks of Ms Harlick every day. She only has photos to remember her by.
[20] Sidney Ranapia, a family friend whom Ms Harlick lived with for 2 to 3 years while growing up, wrote that Ms Harlick’s death was a kick in the guts. He will never get to see her again. He hopes this never happens to any other family, because it hurts a lot.
[21] Judd Allen, Ms Harlick’s brother, wrote that Ms Harlick’s death has broken him. Never will he be able to see Ms Harlick again, and she will never meet his fiancée or any of his future children.
[22] Vicky Harlick, Ms Harlick’s older sister, wrote that Ms Harlick’s death causes her daily pain. She refers to Ms Harlick’s four daughters, who she says are all suffering because of what you did. She states that you have taken away a mother, sister, daughter, niece, cousin and aunty. She hopes you receive a life sentence, like the one they have been given.
[23] Heni Allen, Ms Harlick’s youngest sister, wrote of her struggle to comprehend Ms Harlick’s death, and that it was only during the trial process she knew Ms Harlick was really gone. She wrote that justice has been served, but that will not bring Ms Harlick back.
[24] Ms Harlick’s aunt, also named Marie, talked about Ms Harlick’s daughter, who was present during the attack. The little girl has had trouble sleeping and cried a lot when she first moved in with her Aunt Marie. She couldn’t be in the same room as males, and was shy and frightened. She is making progress, but Aunt Marie wrote of the loss of the mother/daughter relationship, and that while she can love and care for the child, she cannot replace the arms of her mother.
[25] Ms Harlick’s oldest daughter wrote that her mother was her rock and the best, brightest lady, and you have taken that away from them. She loved her mother, and feels guilty that she could not protect her when she was needed.
[26] Another of Ms Harlick’s daughters notes the anger she feels. She thinks about her mother most days, and the fact that she cannot hear from her anymore. She says Ms Harlick will no longer be around for birthdays and Christmas.
[27] Edward Taitai, Ms Harlick’s ex-partner and the father of four of Ms Harlick’s daughters, spoke of the pain you have caused him and their children. He says that even though he and Ms Harlick were not together, she was still part of his world, and you destroyed that forever. You also destroyed her children’s worlds. He says that what kills him inside is knowing that his babies never got to see her to say goodbye.
[28] These statements are moving, and show the extent of the harm you have caused, emotionally, physically and financially. They also show the ongoing pain and suffering Ms Harlick’s loved ones continue to experience as a result of your actions.
[29] I would like to thank all of you who have provided and read those statements. It is a difficult process to go through in all crimes, let alone in situations such as this where the crime is horrific and the loss profound.
Pre-sentence report
[30] Mr Hohua, you are 36 years old. You are of Tuhoe descent and Ngati Kaurikino hapu. You have seven children with whom you have had little contact. You were raised by your grandparents until you were 12, when they both passed away. Your parents had already separated when you were ten years old. Your father used to be a member of the Nomads gang, but later became a Jehovah’s Witness. There was limited contact between you and your father before his death last year, and there has been little contact between you and your mother, who now resides up north. You told the report-writer that you were unsure if your mother would know of your current circumstances unless she had read the papers. That is very sad.
[31] You were raised in Tikanga Maori with Te Reo Maori as your first language. When your grandparents passed away, you were moved around various family members. You told the pre-sentence report-writer that you lived with an uncle who was physically abusive towards you, and a cousin sexually abused you. Other family
members did not believe you when you told them of the sexual abuse, and they were abusive to you as well.
[32] You attended Ruatoki School until Year 11, and worked in forestry when you first left school. You were later convicted of a serious physical and sexual assault and were sentenced to three years and six months’ imprisonment at the age of 17. You told the report-writer that you were sickened by your criminal history, and that your life could have been different if you had been treated normally yourself. I accept, as is unfortunately very common, this background will have been a real contributor to your offending.
[33] The pre-sentence report-writer identified your upbringing and lifestyle as being relevant to your offending-related behaviour. Further factors contributing to your offending were identified as your propensity for violence, your relationship issues, alcohol and drug use, friends and associates, and your lifestyle and attitudes.
[34] As mentioned earlier, you murdered Ms Harlick while you were on bail for a prior assault on her. You were later convicted of that assault. You have a large number of previous convictions, with three convictions in total for assault.
[35] The report-writer noted that your current conviction for murder is a significant escalation in your offending behaviour. Given your history, you were assessed as being at a high risk of reoffending. You were also assessed as being at a high risk of harm to others.
[36] You have been assessed as being at a moderate level of harm from alcohol, and at medium risk of harm from your pattern of drug use.
[37] You indicated to the report-writer that you intend to appeal your conviction, and that you “couldn’t know that kicking someone would actually make someone die.” You did not express any emotion when discussing Ms Harlick’s death, but the report- writer noted that might be due to you still feeling like you have something to guard against, given your intention to appeal the murder conviction. You presented as matter of fact, almost staunch at times, and well-rehearsed in your version of the story. The
report-writer found it difficult to gauge any kind of real remorse, emotive or reflective thinking processes that you may have experienced over the year you have been in custody. You told her you do not suffer flashbacks, you sleep well at night and you try not to think about it.
[38] You appeared to be upset that you had to wait “for over an hour-and-a-half” before the Police told you that Ms Harlick had died. You also emphasised in your interview with the report-writer that you had brought the child back to Wellington Street for comfort that night. The writer noted previous assessments of you had referred to your attempts to “impression manage” during your interactions with others, and that the comments you had made were consistent with that assessment.
Principles of sentencing
[39]I turn now to the principles and purposes of sentencing.
[40] In sentencing you today, I must have regard to ss 7 and 8 of the Sentencing Act 2002 which set out the principles and purposes of sentencing.
[41] In respect of the purposes, I have had particular regard to the need to hold you accountable for what you have done, to denounce the conduct in which you were involved and deter you and others from committing the same or similar offences. I have also considered the need to protect the community.
[42] In respect of the principles of sentencing, I consider it is of particular relevance to take into account the gravity of your offending, including your level of culpability. I have also taken into account the general desirability of consistency of sentencing levels with similar offenders. I must also consider the effect on the victims of your offending, particularly the effect on Ms Harlick’s family.
Life imprisonment
[43] Under s 102 of the Sentencing Act, the presumption for a sentence of murder is life imprisonment, unless that would be manifestly unjust. In this case, a sentence of life imprisonment is clearly appropriate. That is the sentence I am imposing on you.
[44] What remains to be determined is the minimum period of imprisonment that you must serve before you are eligible for parole.
[45] A “minimum period of imprisonment” refers to the minimum period for which you must remain in prison before you can apply for parole. Whether you are in fact then released is a decision for the Parole Board, which must determine at the relevant time whether you still remain a risk to the community. There is no guarantee, even after the minimum period of imprisonment, that you will be granted parole. If and when you are, you will be subject to parole conditions for the rest of your life, as Mr Tomlinson said. If you were to breach them or reoffend, you would return to prison and continue to serve a sentence of life imprisonment.
Minimum period of imprisonment – section 104 of the Sentencing Act
[46] Section 103(2) of the Sentencing Act provides that, where an offender is sentenced to life imprisonment, the Court must impose a minimum term of imprisonment of not less than 10 years, and it must be the minimum term the Court considers necessary to satisfy the purposes set out in that section.
[47] Section 104 of the Act provides the Court must impose a minimum period of imprisonment of at least 17 years in some circumstances, unless it would be manifestly unjust to do so.
Is s 104 engaged?
[48] The Crown says that two of the circumstances listed under s 104 are engaged. These are that your offending involved:
(a)the unlawful entry to, or unlawful presence in, a dwelling house; and
(b)a high level of brutality, cruelty, depravity or callousness.
[49] Mr Tomlinson, on behalf of you, Mr Hohua, disputes these submissions and says that s 104 does not apply.
[50] In relation to the submission that your offending involved unlawful entry into, or unlawful presence, in a dwelling place, the Crown says this arose because you breached your curfew, and other bail conditions not to go to the Wellington Street address, or associate with Ms Harlick, when you killed her.
[51]I accept the Crown’s submission.
[52] There is no definition in the Sentencing Act of the word “unlawful”. Mr Tomlinson points out that you were the lessee or tenant of the property. He relies on the definition of “an unlawful act” in the Crimes Act 1961 and says it is not an offence to breach any bail condition. But s 104 requires “unlawful entry into”, or “unlawful presence in” a dwelling place. It does not require an “unlawful act” in the sense of the Crimes Act. I do not consider that the definition of “unlawful” in s 104 is limited to the meaning given in the Crimes Act.
[53] You were subject to Court-imposed prohibitions by way of the conditions of your bail. Your bail conditions included conditions that you were not to go to the Wellington Street address or associate with Ms Harlick, and you were subject to a curfew from 7.00 pm to 6.00 am. You breached these conditions by going to Wellington Street after your curfew had begun, smashing a glass pane in the door to gain entry into the house, and remaining there until Ms Harlick arrived. While you had resided at the property previously; had been there earlier in the day, and on a number of other occasions during your bail, this did not give you lawful authority to be there. Your bail conditions were clear, and the Wellington Street property was not your home at the time. Your failure to comply with the terms of your bail by entering and remaining in the house on the Wellington Street property was unlawful.
[54] While Ms Harlick did not have a protection order against you, and in fact allowed you to come to the house in breach of your bail, your bail conditions were designed to assist in protecting her against you. Someone who breaches bail with the consent of a person who the bail conditions are designed to protect, nonetheless acts
unlawfully. Ms Harlick had no power to waive the conditions and it is important that this matter not be approached in that way.
[55] In any event, even if consent were relevant, it could hardly be said that Ms Harlick was consenting to your entry at the time, given you broke the glass of the front door and forcibly entered the house.
[56] In relation to the submission that your offending involved a high level of brutality, cruelty, depravity or callousness, the Crown relies on the fact that the assault was prolonged, and that it was brutal in nature, occurring almost entirely while Ms Harlick was on the ground and incapacitated. They say it involved repeated stomping about her body and head, continuing after Ms Harlick became at least semi- unconscious. The Crown say the violence was accompanied by threats to kill, such that Ms Harlick would have been aware her life was in peril, and her 19-month-old daughter was present at the time of the murder. Ms Harlick was then left in a bedroom with the 19-month-old child, without medical attention.
[57] Mr Tomlinson submits that punching, kicking and stomping are all brutal actions, but he says they did not occur to the high level required by s 104 in this case. He also submits that while a child was present, this is not a determining factor and the circumstances here are not sufficient to say the murder was brutal or callous. He also notes, Mr Hohua, that you immediately rendered assistance to Ms Harlick after your attack.
[58] There is no such thing as a murder which is not, in some sense, brutal, cruel, depraved or callous.1 Your offending here was no exception. While I doubt that Ms Harlick heard your threats, given her likely being semi-conscious at best, that does not detract from the fact that you brutally attacked her, hitting and kicking her, and stomping on her. The attack lasted for about 20 minutes. The presence of the child in the vicinity during the attack, who you later laid down beside or near her mother as she died, certainly increases the callousness of your offending.2 While you did attempt
1 R v Slade [2005] 2 NZLR 526 (CA) at [40].
2 See R v Gottermeyer [2014] NZCA 205 at [90] where the presence of a child was relevant.
CPR, you then stopped and after attempting to bathe Ms Harlick, you left her on a bed, and did not seek any medical assistance.
[59] The Crown relies on Lavemai v R as being analogous, because the defendant punched the victim many times while they were unconscious. That case involved a greater level of callousness. In that case, the defendant had expressed pleasure in attacking his victim and said that he could not stop himself.3 The defendant in Lavemai ignored the victim, and in fact systematically robbed him while he lay on the couch, struggling for breath. You were angry, rather than taking pleasure and I accept you tried to assist Ms Harlick after your attack. However, the brutality of your offending is at least as great, if not greater than in Lavemai.
[60] The Crown also relies on R v Namana, where the defendant stomped on the head of a police officer.4 I also note other cases where the victim was kicked or stomped on, some where it was not held that the attacks exhibited a high degree of brutality, cruelty, depravity or callousness,5 and two cases where it was.6 These cases are R v Rangiwhaiao; R v Berry; R v Ranapia; R v Sullivan; R v Churchis; R v Baker; and R v Ah You.
[61] Taking into account the circumstances of your offending and the cases I have noted, I do consider that your murder of Ms Harlick was committed with the high degree of brutality, cruelty, depravity or callousness that s 104 requires. In particular, I consider the murder involved a high degree of brutality, for the following reasons:
(a)The attack involved multiple assaults to the head, the most vulnerable part of the body, and also to the body.
(b)It was prolonged, lasting for about 20 minutes.
3 Lavemai v R [2016] NZCA 363. For the sentencing at first instance, see R v Lavemai [2014] NZHC 797.
4 R v Namana [2001] 2 NZLR 448 (CA).
5 R v Rangiwhaiao [2012] NZHC 1751; R v Berry HC Auckland CRI-2010-092-2165, 7 December 2010; R v Ranapia HC Whangarei CRI-2008-088-4443, 23 October 2009; R v Sullivan HC Wellington CRI-2009-485-86, 10 February 2010; R v Churchis [2014] NZHC 2257.
6 R v Baker [2007] NZCA 277; R v Ah You [2012] NZHC 42.
(c)For most of the assault, the victim was unconscious or semi-conscious and on the ground, and thus totally disabled.
(d)The assault included punching, kicking and stomping, and stomping on multiple occasions.
(e)At least some of the blows, kicks and stomps were of severe force.
(f)The victim was for some time choking on her own blood.
(g)The victim suffered multiple injuries, totalling approximately 36, some of them minor and some of them severe.
(h)The victim probably lived for about 20 minutes after the attack.
What is the appropriate minimum period of imprisonment?
[62] Given the application of s 104 of the Sentencing Act for the two reasons I have discussed, a minimum term of 17 years ought to be imposed, unless it would be manifestly unjust to do so.
[63] I need to consider what minimum period of imprisonment I would apply if the presumption in s 104 were not engaged. That could be higher or lower than 17 years.
[64] The Crown submits that a minimum period of imprisonment between 18 to 19 years is appropriate. This is on the basis that your offending was premeditated, the unlawful entry and presence in a dwelling place, the extent of the loss and harm, use of a weapon and extent of the violence, and the fact the offence was committed while you were on bail.
[65] Mr Tomlinson submits that the features of premeditation, and use of a weapon are not features that were present in your offending. He accepts that the extent of the loss will always be high in murder, and accepts that the fact your offending occurred while you were on bail is an aggravating factor. He submits the starting point
minimum period of imprisonment should be 13 years, reduced to 12 years for mitigating factors.
[66] I agree with Mr Tomlinson that your offending was not premeditated. You intended to confront Ms Harlick about your suspicions of infidelity, but I do not consider that you had formed an intention to assault her prior to your attack.
[67] There is no evidence that you used a weapon, and so this does not constitute an aggravating factor in your offending. However, I obviously agree that the extent of the violence is an aggravating factor, which incorporates Ms Harlick’s vulnerability, being at most semi-conscious and on the floor. It also involves the 19-month-old child being present in the vicinity.
[68] While your actions have resulted in the death of Ms Harlick, which as her family have shown has also caused them devastating loss, the extent of the loss and harm in this situation is unfortunately no more than that which normally arises when someone is murdered. I have already taken into account the presence of Ms Harlick’s child when I have considered the violence.
[69] I also consider that treating the fact you offended while on bail as a separate matter from the unlawful entry and presence in the house on Wellington Street would constitute double counting, and so I do not take that into account as a separate factor.
[70] Mr Tomlinson submits that your genuine remorse and acceptance of responsibility are mitigating factors of your offending. I agree that your evidence in the DVD interview clearly indicated remorse. However, as the Crown says, there are counterbalancing factors. In particular, there is your prior offending against Ms Harlick, which is somewhat inconsistent with genuine remorse. There are the factors I referred to earlier, such as your attempt to cover up your offending when the Police arrived, and I am concerned by the assessment of the pre-sentence report-writer, who said they found it difficult to gauge any kind of real remorse, and noted your attempts to “impression manage” during your interactions with others. While you have accepted that your actions led to Ms Harlick’s death, I do not consider that you have
shown insight into your actions such that you have truly accepted responsibility for it. I therefore do not consider remorse merits a discount.
[71] Ignoring the application of s 104 and just considering the circumstances of your offending, the cases the Crown referred me to7 and the other cases that I have located, which I have referred to already,8 I consider that the appropriate minimum period of imprisonment would be 17 years.
[72] It necessarily follows that it would not be manifestly unjust to impose a minimum period of 17 years’ imprisonment under s 104 of the Sentencing Act.9
[73] In particular, I repeat that I do not consider the submission that you are genuinely remorseful and take responsibility for your offending is borne out in the pre- sentence report, nor would it justify finding a minimum period of imprisonment of 17 years manifestly unjust.
Sentence
[74]Mr Hohua, will you please stand. I will now impose your sentence.
[75] For the murder of Marie Harlick, you are sentenced to life imprisonment. You will serve a minimum of 17 years’ imprisonment.
[76]Mr Hohua, stand down please.
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Hinton J
7 Lavemai v R [2016] NZCA 363; R v Namana [2001] 2 NZLR 448 (CA).
8 R v Rangiwhaiao [2012] NZHC 1751; R v Berry HC Auckland CRI-2010-092-2165, 7 December 2010; R v Ranapia HC Whangarei CRI-2008-088-4443, 23 October 2009; R v Sullivan HC Wellington CRI-2009-485-86, 10 February 2010; R v Churchis [2014] NZHC 2257; R v Baker [2007] NZCA 277; R v Ah You [2012] NZHC 42.
9 R v Williams [2005] 2 NZLR 506 (CA).
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