R v Hussein

[2022] NZHC 3034

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-009-4280

CRI-2022-009-4327 [2022] NZHC 3034

THE KING

v

ZAKARIYE MAOHAMED HUSSEIN

Hearing:

18 November 2022

Appearances:

B Hawes for Crown

J D Lucas and J M Campbell for Defendant

Judgment:

18 November 2022

SENTENCING REMARKS OF MANDER J

[1]        Mr Hussein, you can remain seated while I deliver my sentencing remarks. I will get you to stand at the end when I pass sentence.

[2]        Mr Hussein, you are for sentence this morning for the murder of Laisa Waka while an inpatient at Hillmorton Hospital.

[3]        On the afternoon of Saturday 25 June of this year you absconded from the hospital grounds and travelled by bus to Sockburn. There, you walked to your family’s address. While doing so, you became angry. You observed a man mowing his lawns who you decided to stab. You went into the family address and obtained a steak knife from a kitchen drawer which you concealed in your jacket pocket. After leaving the address, you walked towards your initial intended victim. While doing so, you

R v HUSSEIN [2022] NZHC 3034 [18 November 2022]

observed two other men washing a vehicle who you also considered stabbing but decided not to do so because it was too close to your family’s address.

[4]        You walked further on before approaching Ms Waka, who was coming from the opposite direction. You attacked her with the knife. She received a stab wound to her arm after trying to defend herself by putting her hand up, but you continued to stab her. You inflicted seven wounds to her upper chest and shoulder area that were fatal. You then threw the knife away and walked from the scene.

[5]        You are also for sentence on a charge of injuring with reckless disregard. That charge arises out of your attack on a psychiatric nurse that occurred while you were an inpatient at Hillmorton Hospital on 16 December 2021. You became angry at being denied leave from the hospital. After being approached by a team of nurses led by the victim, you armed yourself with a pen, around which you had wrapped paper for a better grip. You swung the pen at the nurse’s neck and, while missing that part of her body, you struck her in the arm before then being restrained. You inflicted a gash to the nurse’s upper left arm and significant bruising.

Victim impact statements

[6]        I have received victim impact statements  from  Mrs  Waka’s  family  and  Mrs Raleqe a member of the local Fijian community. I am grateful to them for letting me know a little bit about Mrs Waka, who was a devoted wife and mother. She has been described to me as a kind, caring and compassionate woman who worked hard to look after her family and to serve her community. Mrs Waka’s death has left a vast hole in the lives of Mrs Waka’s husband and children whose grief is compounded no doubt by the senseless circumstances of her murder, and they have been left bereft. I want to acknowledge this morning the dignified presence of Mrs Waka’s family and of the local Fijian community. They have suffered a terrible loss.

Personal background

[7]        Mr Hussein, you are a 37-year-old man who arrived in this country in 1999 as a refugee, together with your parents and siblings. You are reported as having been exposed to violence and war as a child in Somalia before your family fled to Kenya

when you were 10 years old, before coming to this country seven years later. You were not successful at school in New Zealand, and it is apparent that work opportunities and further study were curtailed as a result of growing mental health issues.

[8]        Following an episode of manic depression and an attempt to commit suicide, you were diagnosed with a bipolar affective disorder in 2006. Thereafter, you have struggled with your mental health and are described as having a complex history of psychiatric difficulties against a background of criminal offending. Your family was unable to cope and after your eviction from home you were left unemployed and homeless. The years following have been characterised by periods of inpatient admission, incarceration, and relatively brief periods in the community. Over the course of this time you committed a number of violent offences that often involved the use of weapons.

[9]        Between 2012 and the date of this offending you were admitted to Hillmorton Hospital no fewer than five times for periods ranging between four days and many months. Your last admission was to the medium secure unit on 25 August 2021, where you were still being treated as an inpatient at the time this offending occurred. Throughout your involvement with forensic services you have had a range of diagnoses, although delusional beliefs and fluctuating behaviour and moods have been a constant. At the time this offending occurred the diagnosis was one of Schizoaffective Disorder Bipolar Type with significant underlying personality dysfunction that included antisocial, paranoid and psychotic phenomena. This remains your current diagnosis.

Psychiatric reports

[10]      Three psychiatric reports were prepared for the purpose of these criminal proceedings by two psychiatrists. They provide considerable information about your psychiatric background which is marked by lengthy periods of clinical care since 2006 from specialist mental health services. As noted, you have essentially been in either a medium/secure setting or custody since 2012 after being involved in serious offending.

[11]      Dr Norris notes that your diagnosis of Schizoaffective Disorder Bipolar Type means you experience both mood symptoms and psychotic phenomena and that when acutely unwell you experience an abnormal state of mind characterised by paranoid, persecutory, religious and grandiose delusions, disorder of mood and both elevated and depressed symptoms. There is also associated hostility and disorganised thoughts and behaviour. Dr Norris describes you as having a history of both psychotic and non- psychotic violence and that notwithstanding your psychiatric condition you are capable of being involved in incidents of violence when not acutely unwell.

[12]      In terms of the present offending, Dr Norris observed that you held intense grandiose and religious beliefs that had been present for many months. You are said to have believed at the time of this offending that God was going to give you money so you could buy houses and marry staff. Clinical staff have confirmed you engaged in endless discussions about these beliefs. Although it was not considered these preoccupations affected your daily functioning, you demonstrated a pattern of holding grudges, frustration with your hospitalisation, anger and despondency. Dr Norris characterises your dysfunction as impaired personality development in the context of trauma and a persistent and severe paranoid illness.

[13]      In the course of your engagement with the psychiatrists, you disclosed that on the day of the offending you were increasingly frustrated and angry with hospital staff, in particular as a result of them removing staples from a newspaper supplement advertising real estate. You would examine the supplement and circle properties you were going to purchase. On the day of Ms Waka’s murder, you decided to leave the hospital grounds and tell your family you were not going back to the hospital. You say you recall thinking God had given you a “hell of a sad life” and bursting into tears.

[14]      You stopped at the library on the way and obtained the property section of the newspaper that was still secured by staples. You reported to Dr Norris that you then checked your bank account. When you saw that God had not deposited the “millions and billions” to enable you to buy all these properties, you felt disappointed and considered God was torturing you. By the time you entered your family’s home you described yourself as feeling “in a rage”. You disclosed to Dr Barry-Walsh various matters that caused you to  want to  lash out,  including  what you believed was  your

illegal detention as an inpatient and that your parents would not have you back with them. You became very angry. You said you then began to have thoughts about wanting to hurt someone, although you had no specific person in mind. While at that time you were suffering chronic delusional beliefs, they were not of a degree that affected your ability to understand the nature and quality of the actions you subsequently took, nor that your killing of Ms Waka would be morally wrong.

[15]      Dr Barry-Walsh reported that at the time of this offending you faced “an upwelling in delusional beliefs” and that you suffered from a severe psychotic illness. He described your presentation as reflecting an interaction between ongoing psychosis with sustained persecutory and grandiose delusional beliefs, and a personality structure influenced by both illness and pre-existing trauma. He opined that at the time of this offending there was evidence of psychosis influencing your behaviour, including your disappointment God had not left you money when you checked your bank balance. This was consistent with your well-established and longstanding “delusional system”. He has assessed your account of what occurred as one of rage triggered by a trivial but symbolic incident at the hospital in the context of psychosis. However, the doctor considered that on balance there was insufficient evidence to establish you were incapable of knowing the moral wrongfulness of your actions. Notwithstanding that conclusion, he considers there is a considerable nexus between your illness and the offending.

2012 offending

[16]      Both psychiatrists refer in their reports to your 2012 offending. In March of that year you forced a woman at knifepoint to drive around Christchurch for approximately an hour before she eventually managed to escape. You were armed with two knives and terrified a number of people while behaving in a bizarre way. You climbed into a man’s vehicle and ordered him to drive away. When he attempted to escape you pursued him and stabbed him several times, causing life threatening injuries. Police were unable to subdue you with pepper spray or tasers and ultimately you had to be shot in the arm, such was your highly disturbed state.

[17]      That offending is described by Dr Norris as having been the result of a prolonged paranoid episode at a time when you were not taking anti-psychotic medication and had refused [mental] health care and support. Both psychiatrists have remarked on your capacity to mask symptoms of illness and, as observed by Dr Barry Walsh, it is striking that this previous offending, although likely driven by psychotic symptoms, was not appreciated as such until you were admitted to hospital in 2015 following the imposition of a term of six years and six months’ imprisonment.1

Sentence for murder

Life imprisonment

[18]      I turn now to the sentencing exercise. A person convicted of murder must be sentenced to life imprisonment unless, given the circumstances of the offence and the offender, to do so would be manifestly unjust.2

[19]      Where murders have been committed by offenders suffering from serious psychiatric conditions, the sentencing court will assess whether it would be manifestly unjust to impose a sentence of life imprisonment because the offender’s mental health may have a considerable bearing on that person’s culpability. However, a key consideration will be the level of risk that offender presents to the community and whether, set against the background of the person’s psychiatric difficulties, the homicide can be viewed as an aberrant episode or is consistent with past conduct that could potentially be repeated.3

[20]      On your behalf, Mr Lucas does not contend that a sentence of life imprisonment is not warranted in your case, or would be manifestly unjust. I consider that is a responsible and realistic concession in the circumstances of your case. From your history and the information available to me, I consider you pose a high ongoing risk to the community as a result of your proclivity for violent offending, which is obviously aggravated by your persistent psychiatric condition. An indeterminant sentence of life imprisonment will ensure you are not released back into the

1      R v Hussein DC Christchurch CRI-2012-009-003073, 20 September 2012.

2      Sentencing Act 2002, s 102.

3      R v Van Hemert [2021] NZCA 261 at [41] and [52].

community unless the Parole Board is satisfied the risk you present is significantly reduced and can be adequately managed.

[21]      Life imprisonment is the sentence I will be imposing on you today. In large measure, the balance of my sentencing remarks address the secondary issue of the length of the minimum period of imprisonment that you should serve before being eligible to be considered for parole which must not be less than 10 years.4 Before doing so, however, I need to emphasise that life imprisonment means just that. You will spend the rest of your life in prison until the Parole Board is satisfied you no longer pose a risk to the community. Even then, should that occur, you will remain subject to recall on account of any conduct indicating an emergence of risk.

[22]      In undertaking the task of setting a minimum term of imprisonment, I am required to compare your culpability with cases of murder that attract the normal statutory minimum of 10 years and which serve as a benchmark for the sentencing exercise. Taking into account aggravating and mitigating factors, I am then required to decide whether an additional minimum period is required to satisfy the sentencing purposes of accountability, denunciation, deterrence and community protection.5 In some situations, because of the circumstances in which a murder is committed, a court will be obliged to impose a minimum period of imprisonment of at least 17 years unless it would be manifestly unjust to do so.6

Sentencing Act, s 104

[23]      The Crown has argued this is such a case and that s 104 of the Sentencing Act is engaged on the basis this murder was committed with a high level of brutality, cruelty or callousness — which are the words of the section — or was otherwise committed in exceptional circumstances.7 As your counsel, Mr Lucas, has observed, all murders are in some sense brutal, cruel and callous. It is an invidious task to have to make comparisons between what are all terrible crimes, but the fact a homicide involves repeated serious stabbings or beatings with weapons will not necessarily by

4      Sentencing Act 2002, s 103.

5      Sentencing Act 2002, s 103(2), R v Williams [2005] 2 NZLR 506 (CA) at [49]; and Robertson v R

[2016] NZCA 99 at [80].

6      Sentencing Act, s 104.

7      Sentencing Act, s 104(1)(e) and (i).

itself bring the offending within the statutory provision. A high level of brutality is required.8 Your murder of Mrs Waka can only accurately be described as a brutal act but, as I think the Crown has tacitly acknowledged in its written submissions, it does not meet the required statutory threshold to trigger s 104.

[24]      The Crown’s real argument on this issue is centred on the utter randomness of your attack and that, as a consequence, your murder of Ms Waka would fall into the exceptional category of case which the legislative policy of s 104 of the Act was intended to apply. In making that submission the Crown has emphasised that your attack was a response to a minor grievance engendered in you from an incident earlier in the day while at Hillmorton Hospital, over which you continued to ruminate, and resulted in the arbitrary and indiscriminate killing of an innocent member of the public. Mrs Waka was walking along a suburban street having recently alighted from her bus on her way home from work as part of her normal routine. She did nothing to provoke the attack, nor was there anything she could have done to prevent it. As the Crown has accurately observed, she simply had the misfortune of being in the wrong place at the wrong time. That anyone could be the victim of such lethal violence in such circumstances is appalling.

[25]      The Court of Appeal has observed that the “exceptional circumstances” threshold is likely to be reached in a case involving offending “so horrendous or repugnant as to justify additional denunciation” by the imposition of a minimum sentence of at least 17 years’ imprisonment.9 Various examples of that have been provided in subsequent cases.10 Without question, the random, gratuitous and unprovoked nature of your lethal actions are aggravating features of your attack, but in the present case your psychiatric condition and the extent to which it influenced your actions must be taken into account when assessing the question of your culpability and the need for additional denunciation.

8      R v Slade [2005] 2 NZLR 526 (CA). Illustrative examples include Fraser v R [2010] NZCA 313; and Price v R [2021] NZCA 568 referred to in Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [SA104.01(e)].

9      R v Parsons [1996] 3 NZLR 129 (CA) at 131.

10 R v Gosnell [2013] NZHC 1313 – desecration of a victim’s body; R v Kumar [2015] NZHC 954 – the burning to death of a victim who was unconscious following a serious assault; R v Tapaevalu [2019] NZHC 1867 – the gunning down of an innocent bystander who witnessed a killing.

[26]      When the important consideration of your psychiatric state is factored into the circumstances of your fatal attack on Mrs Waka, I am unable to conclude s 104 applies to this particular situation notwithstanding the terrible consequences for your victim and the awful tragedy for Mrs Waka’s family. In any event, that aspect of the circumstances of your offending I consider would render the imposition of a minimum period of imprisonment of at 17 years to be manifestly unjust, as has been found to be the case in other cases where psychiatrically impaired offenders have committed murder.11

Appropriate minimum period of imprisonment

[27]      I turn now to the assessment of the minimum period of imprisonment. The aggravating features of your offending are readily apparent:

(a)There is the use of a weapon in the form of a knife that rendered your attack lethal and demonstrated your specific intent to kill.

(b)What you did was, to a material degree, premeditated. You deliberately armed yourself with the knife for the specific purpose of attacking an innocent victim. You initially intended to stab others but made the deliberate decision not to do so because they were too close to your family’s home, so there was an element of calculation in setting out to do what you did in order to vent your anger.

(c)As I have already noted, all murders by their nature involve an element of brutality but, here, you deliberately stabbed Mrs Waka some eight times. Seven blows were directed to her chest area, such was your intention to kill.

(d)The vulnerability of your victim. Mrs Waka was alone in a public street and completely unknown to you. She would have been completely unsuspecting of any danger to her and could never have anticipated what was about to occur.

11     R v Yad-Elohim [2018] NZHC 2494; and R v Morris [2012] NZHC 616.

(e)Finally, there is the harm caused to Ms Waka’s family from having to come to terms with the random and unfathomable sudden death of their loved one in circumstances that they understandably find difficult to comprehend.

[28]      The other factor that I must traverse in assessing the minimum period of imprisonment, however, is your mental health at the time you murdered Mrs Waka. Mental illness can be taken into account in sentencing an offender in various ways. A person’s psychiatric condition may reduce their moral culpability for their offending. Mental health disorders falling short of a defence of insanity may be taken into account in the sentencing process and affect the starting point of a sentencing exercise.12 The need for general or specific deterrence may need to be moderated or eliminated as a sentencing consideration because of the nature and severity of an offender’s condition and the effect on their mental capacity, whether at the time of the offending or at the date of sentence or both.13 However, aside from how an offender’s mental health may influence the question of culpability and the application of relevant sentencing principles, an individual’s psychiatric condition may also need be taken into account as a personal circumstance.14

[29]      Dr Barry-Walsh has opined that there was a clear nexus between your condition and your offending. Dr Norris was not as definitive, but both psychiatrists concluded you suffered from a significant mental illness which qualified as a disease of the mind under the Mental Health Act. Despite the link between your mental illness and your actions, as I have already observed, you were not deprived of the ability to understand the nature and quality of your actions, nor the capacity to appreciate the moral wrongfulness of what you were doing.

[30]      The Crown has acknowledged your mental impairment likely had a role in your offending, which I consider is an inevitable conclusion. Mr Lucas submitted that, because of the linkage between your actions and your mental unwellness, while a defence of insanity was not available to you, this aspect of your offending must reduce

12     E(CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411; Shailer v R [2017] NZCA 38, [2017]

2 NZLR 629.

13     E(CA689/10) v R, above n 12 at [70].

14     Hall v R [2021] NZCA 314 at [29].

your level of culpability. I consider that must be right.15 However, as the Crown has noted in its submissions, an offender’s psychiatric makeup can in some circumstances be a neutral or even aggravating factor because the offender’s mental health disorder may bear on a heightened risk of reoffending and the need to protect the public.16 There are therefore two competing considerations which the Court must weigh. Your reduced moral culpability needs to be recognised but that must be balanced against the vert high risk of harm you present to the community as a result of your propensity for violence and the present high risk of you reoffending.

[31]      Significant discounts have been extended when sentencing offenders for murder where there is a diminished level of culpability because of serious mental illness or impairment.17 To the extent considerations relating to the protection of the public should serve to counter any such recognition in the sentence imposed, that need has to some substantial degree been met by the imposition of the indeterminate sentence of life imprisonment and the uplift I intend to impose for your previous offending, notwithstanding that may likely also have been a manifestation of your psychiatric condition. I have taken into account the fact you were suffering from a disease of the mind at the time of this offending and have reduced the minimum period of imprisonment that would otherwise have been imposed.

[32]      The extent of that deduction is, however, tempered by the recognition I have already afforded to you for your psychiatric condition in my assessment of whether  s 104 of the Sentencing Act applies to the circumstances of this murder. But for your psychiatric disorder, the random, gratuitous and otherwise inexplicable nature of your murder of Mrs Waka likely would have qualified for inclusion in the residual category of exceptional circumstances provided by s 104, as was contended by the Crown. However, the fact your actions were influenced to a material degree by your psychiatric disorder has led me to conclude this provision does not have application in the circumstances of your case.

15     R v Brackenridge [2019] NZHC 1627; and R v Van Hemert [2021] NZHC 2877.

16     Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [47].

17     See for example R v Van Hemert, above n 15.

[33]      I have reviewed a number of sentencing decisions that have involved murders involving random gratuitous violence or unprovoked attacks.18 The circumstances of individual cases will invariably vary and care is required when making comparisons, particularly where such serious offending as this is involved. However, the need for consistency in sentencing requires me to have regard to how the Court has approached sentencing in broadly similar cases.

[34]      In setting the starting point for the minimum period of imprisonment I must also take into account your attack on the nurse in December 2021 that is marked by the charge of injuring with reckless disregard. The significance of that offence largely lies in it being a further example of your proclivity to resort to violence and to use a weapon. Your counsel accepts that that offending warrants an uplift to the starting point for the minimum period of imprisonment as it represents discrete offending.

[35]      Having taken into account your psychiatric condition at the time you murdered Mrs Waka, I arrive at an overall starting point for the minimum term of imprisonment as being one of 13 years.

Personal aggravating and mitigating factors

[36]I turn now to personal aggravating and mitigating factors.

Previous offending

[37]      I have already detailed your offending in 2012 which resulted in you being convicted of possessing a knife, wounding with intent to cause grievous bodily harm, two charges of kidnapping, injuring with intent to cause grievous bodily harm, and behaving threateningly.19 Prior to that, over an eight month period between July 2009 and March 2010, you were convicted of a number of offences that included assaulting a person with a blunt instrument, assault and possession of an offensive weapon. In

18 R v Piilua HC Christchurch CRI-2005-009-11878, 1 September 2006; R v Fa’avae HC Auckland CRI-2006-204-748, 10 July 2008;  R v Key HC Auckland CRI-2006-092-12705, 15 May 2009;  R v Broughton HC Rotorua CRI-2008-269-62, 26 March 2009; R v Peach HC Christchurch CRI- 2008-009-13852, 3 December 2009; R v Millar HC Auckland CRI-2010-090-5044, 21 June 2011; R v Manihera CA40/98, 22 June 1998; R v Kinghorn [2013] NZHC 3216; R v Abraham CA139/03, 28 October 2003; R v Abraham HC Wellington T1942/02, 4 April 2003; Brown v R [2011] NZCA 95; and R v Brown. HC Auckland CRI-2008-004-22829, 10 December 2010.

19 R v Hussein, above n 1.

2019, you were convicted of injuring a nurse at Hillmorton Hospital. This previous violent offending is indicative of the ongoing danger you present and the need to protect the community. It is not suggested a two-year uplift is other than warranted.20

Personal background

[38]      In addition to the psychiatric reports, I have also received a pre-sentence report and a further report prepared pursuant to s 27 of the Sentencing Act. I have already referred to your early childhood, growing up in the midst of a civil war in Somalia, and the threat of violence and fear to which you were exposed in that environment. It is also recorded you suffered physical abuse at the hands of your father. The psychiatric reports suggest your childhood experiences are potentially relevant to and/or causative of your ongoing intense and emotive reactions to events, including those leading up to this offending.

[39]      The seriousness of this offending and the apparent pervasiveness of your psychiatric condition on your conduct are the predominant considerations in this case. However, while perhaps of secondary relevance compared to your psychiatric difficulties, I accept there is on the available material some connection between your deleterious experiences as a child and as a youth and your poor mental health and tendency to involve yourself in violent conduct. I allow a six month deduction for this aspect of your personal background. For completeness, I record that, insofar as your psychiatric condition also amounts to a personal circumstance, on the information before me it is not apparent your mental health needs cannot properly be addressed in prison or that your incarceration will cause you particular hardship.

Guilty plea

[40]      You entered a plea of guilty at the earliest opportunity after reports were received that confirmed your fitness to stand trial and excluded a viable defence of insanity. The Crown notes the strength of the case against you but the fact remains that you have accepted responsibility for what you have done, you have expressed insight into the effects of your offending on Mrs Waka’s whānau and the wider

20     R v Fahey [2015] NZHC 78 at [30].

community, and you have spoken of your remorse. You have also saved the need for a trial, all of which must be recognised with an appropriate reduction in accordance with the level set by prior cases. Accordingly, I apply an 18 month deduction in respect of the minimum period of imprisonment.

Result

[41]Mr Hussein, will you please now stand.

[42]      On the charge of murdering Mrs Laisa Waka you are sentenced to life imprisonment. You will not be released until the Parole Board considers it is safe for you to be released. That consideration cannot occur until the elapse of 13 years and that is the minimum term of imprisonment that I impose upon you.

[43]      On the charge of injuring with reckless disregard you are sentenced to a concurrent finite term of 18 months’ imprisonment.

[44]Will you please stand down.

Solicitors:
Crown Solicitor, Christchurch