R v Innes

[2014] NZHC 2780

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-009-008919 [2014] NZHC 2780

THE QUEEN

v

SHAUN ROBERT MURRAY INNES JASON WILLIAM BAKER

Hearing:	7 November 2014
Appearances:	P A Currie for Crown M J Knowles and AND Garrett for Mr Innes G H Nation for Mr Baker
Judgment:	7 November 2014

SENTENCING NOTES OF DUNNINGHAM J

[1]      Mr Baker and Mr Innes, I enter convictions against both of you on charges of murder and aggravated wounding after having been found guilty by a jury on those charges.  It is now my task to sentence you.

[2]      Murder, as you will know, carries a maximum sentence of life imprisonment and the key consideration is normally what minimum term of imprisonment should be imposed before someone convicted of murder should be eligible to apply for parole.  However, counsel for you, Mr Innes, has also argued that this is one of those rare cases where it would be manifestly unjust and that is a matter which I must also consider in this case today.

[3]      The  maximum  sentence  for  the  other  charge  of  aggravated  wounding  is

14 years  imprisonment,  but  as  the  sentence  on  that  charge  will  be  served concurrently with the sentence on the murder charge, I will not dwell much on that.

R v INNES & BAKER [2014] NZHC 2780 [7 November 2014]

Background facts

[4]      The  events  which  gave  rise  to  these  charges  took  place  on  Friday

13 September 2013.  Now at the time you were both regular drug users, and you took drugs on that day.  Early in the evening of that day you decided to travel to Rangiora where your two victims resided at a flat in White Street, Rangiora, and you went there for the purpose of robbing them of at least drugs and cash.

[5]      Mr Baker, you were armed with a hunting knife, and you had shown that to Mr Innes while you were en route to the address.  The victims were known to you Mr Baker, but as you had a falling out with one of them, it seems to have been the plan that Mr Innes would knock on the victim’s door while you, Mr Baker, hid in the bushes.   I accept the Crown’s contention that it was for Mr Innes to entice the victims out of the flat onto the driveway where Mr Baker, armed with the knife, you would confront them.

[6]      The occupants of the flat were, Mr Tony Lochhead, who was 51 years old and his brother Peter Lochhead, who was 54 years old.  They were at home cooking a meal and watching television when you arrived a little after 9.00 pm.  As per the plan,  Mr  Innes,  knocked  on  the  victim’s  lounge  door  and  it  was  answered  by Tony Lochhead.  Mr Innes, you were invited inside and you entered the lounge.  On hearing you in the lounge, Mr Peter Lochhead, who had been in his bedroom walked out into the lounge and at that point you exited the lounge.   You were speaking unintelligibly as you proceeded down the driveway towards the road.   Both the Lochhead brothers followed you out, with Mr Tony Lochhead going part way down the drive after you.  It was that point he became aware of you, Mr Baker, who had been hiding in bushes on the side of the drive.

[7]      As Tony Lochhead retreated back to his flat, Mr Baker you followed him with your knife and repeatedly said you wanted drugs.   The brothers tried to shut their lounge sliding door, but you put your leg through the door so that it could not be shut.  While standing at the lounge door, Mr Baker, you were thrusting the knife through the partially open door repeatedly attempting to strike the victims.   You yelled “I’m going to stab you all over” and “I’m going to fill you full of holes”.  You

were controlling the sliding door, you were opening it to lunge and stab at your victims, and then closing it and using it as a shield.

[8]      Mr Peter Lochhead grabbed a walking stick and went to the door to assist his brother,  to  prevent  you,  Mr  Baker,  from  getting  inside.     During  the  attack Mr Tony Lochhead   received   a   fatal   knife   wound   to   his   upper   chest   and Mr Peter Lochhead received a knife wound which completely pierced his cheek, as well as more superficial cuts to his ear, shoulder, wrist, and chest.

[9]      Eventually Mr Peter Lochhead was able to swing the walking stick at your arm through the partially opened door, where he struck you on the hand and caused you to drop the knife.

[10]     It was at this point that you ran from the scene back to where you had parked the Subaru station wagon you had arrived in.  You then drove along White Street looking for and calling for Mr Innes, who had left the scene.  You were unable to locate Mr Innes and you started to drive back towards Christchurch.

[11]     I accept that, Mr Innes, you were filmed on the CCTV camera of a nearby Rangiora garage at around 9.13 pm which was shortly before the time the ambulance was called to attend to Mr Tony Lochhead.  I am satisfied that you were not present at the property at the time the fatal stabbing occurred and had run away when Mr Baker confronted the Lochheads on the drive.   However, the jury was clearly satisfied that you both went there with the common intention to rob the Lochheads and that you had played your part by enticing the Lochheads out of the flat so they could be confronted by Mr Baker.

[12]     After  leaving  the  scene,  Mr  Baker,  your  vehicle  was  seen  driving  from Rangiora towards Christchurch in an erratic manner and you struck a concrete curb when turning onto the motorway causing a flat tyre.  You eventually abandoned your vehicle  on  the  grass  verge  of  the  motorway  and  made  your  way  back  to Christchurch.  Mr Innes, you hitchhiked back to Christchurch separately.

[13]     Although   emergency   services   were   called   promptly   to   attend   to Mr Tony Lochhead, attempts to revive him were unsuccessful and he was declared dead a short time later.  Mr Peter Lochhead was treated for his injuries.

The victims

[14]     The Court has received three victim impact statements. The first was from Mr Peter Lochhead, who was the victim of the aggravated wounding, and who is the deceased’s older brother.  He says that the loss of his brother hurt more than the stab wounds and that his life will never be the same again.  He says he does not feel safe in his home and does not trust anyone.  He became more anxious as the trial neared. He misses hunting and fishing with his brother, and he notes that they were close enough that they did not have to talk to communicate.   He does not feel he can forgive you and he hopes that the law will bring justice for his brother.

[15]     The next statement was from the deceased’s sister-in-law, Tracey Ross.  Her husband was also a brother to the victims but he died in a motor biking accident. She says that Tony Lochhead’s death brought back the grief from the loss of her husband.   She ended up assuming a heavy role in the aftermath of the offending, organising Peter Lochhead’s medicine, keeping in contact with their sister Leeann, organising Tony Lochhead’s funeral, and speaking to the media.  She described it as the most stressful time she had ever been through.  She feels disgusted that you have not shown remorse or tried to apologise to the family for what you have done.

[16]     Jasmine  Lochhead  is  the  deceased’s  niece.    She  was  left  physically and emotionally drained, as she tried to help Peter Lochhead, her uncle through his grieving.  Tony Lochhead’s death has reinitiated the nightmares she had when her father died.   She feels she has had to put her life on hold while she struggles to rebuild her life.  She says she hopes you can see where your lives have led you, and that you can seriously commit to making changes, and in that regard she holds more confidence and hope for you, Mr Innes, than you, Mr Baker.

Personal circumstances

[17]     I now need to say something about the personal circumstances of each of you and this is largely drawn from the pre-sentence reports, although also from counsels’ submissions.

[18]     Mr Baker you are 40 years old.  Your pre-sentence report describes you as someone with heavy and persistent drug addictions which you have battled since childhood, having grown up in a household where drugs were normalised.   You moved to Australia with your family when you were young but were deported back to New Zealand in 1995.  Between 1995 and 2005, you were variously employed or on the benefit but you did not become before the Courts at all.  It is unclear why you were able to remain offence-free during that period but not subsequently.  You have amassed 14 convictions since 2005, although the report-writer notes he did not have access to your criminal record or history while in Australia.

[19]   You apparently recall little of your offending for which you are facing sentencing.   You recall that you consumed alcohol, morphine, Clonazepam, and approximately 50 Benzylpiperazine pills on that day.  You have said that you could not explain why a knife was taken to the property and you say you can’t get it into your head that you were going to rob them, although you do acknowledge that you went to “score” from the victims.   You said you knew the victims, although you variously reported knowing them from a few months, to up to more than three years.

[20]     You maintain it was not in your nature to hurt someone in this manner, and you have expressed remorse towards the victims and their families saying “I am just so sorry it all happened ...  I have never cried so much in my life for how I had hurt someone so much ... the victims helped me out a lot ... , they’re always pretty nice to me”.  I have also received and read your letter to this Court which expresses much the same thoughts.  I accept you are remorseful to a degree, but I note that this has not been demonstrated in a meaningful way to the family of your victims.

[21]     However, the report writer concluded that your risk of re-offending and harm was high in light of your offending history which has escalated in severity since

2005.   Indeed, even since your remand in custody you have faced six misconduct

charges.   The issues you need to address are your propensity for violence, your alcohol and drug abuse, the attitude and a sense of entitlement you have which support your offending, your unhelpful lifestyle balance and having associates who support your offending.

Mr Innes

[22]     Mr Innes you too, are 40 years old.  Your pre-sentence report says that you suffered a brain injury following a severe car accident in 1994 and you were in receipt of ACC payments for many years subsequently.   The accident caused a frontal lobe injury resulting in short term memory loss, impulsivity, and poor concentration.  Your drug use appears to have commenced following this accident, with you relying mostly on morphine.   In 2007 you were placed on a methadone programme and you then managed to live productively and offence free for several years.   However, your dose was subsequently lowered and it seems drug use and offending resumed.   You have the support of a partner of 22 years and of your mother, and you are described as a great father to your three children, but you have a serious drug issue.    At the time of this offending, you were injecting methamphetamine, morphine or home bake on a daily basis.

[23]     The  report-writer  notes   that   you   did   not   attempt   to   minimise   your involvement in the offending, accepting that you went to the property with Mr Baker, but are adamant that once you became aware of the intention, you left the scene. You expressed sympathy for the victim’s family and state you take responsibility for being “dumb” and allowing yourself to relapse back into drug use.  I also note your willingness to participate in restorative justice which I have recently been made aware of.

Sentencing Act purposes and principles

[24]     I need to address at this stage briefly the relevant purposes and principles in the Sentencing Act.

[25]     In sentencing you, I must have regard to the purposes of s 7 which relevantly include:   holding you accountable for the harm you have done to your victims,

promoting in you a sense of accountability and responsibility for that harm, denunciation of your conduct, community protection, and deterrence.   The s 8 principles of particular relevance in this case, I must take into account are the gravity of the offending,  the culpability of  your actions, the seriousness of the offence relative to other types of offences, sentencing consistency, consideration of the effect of your offending on the victim’s family, but imposing the least restrictive outcome that is appropriate in the circumstances.

[26]   However, in relation to the murder charge, much of my discretion is circumscribed by the provisions of s 102 to 104 of the Sentencing Act.  Section 102 of the Act says that an offender who is convicted of murder must be sentenced to life imprisonment unless it is manifestly unjust to do so.  Section 103 of the Act says that when  a  life  sentence  is  imposed  the  Court  must  order  the  offender  to  serve  a minimum period of imprisonment of 10 years.

[27]     Finally, under the provisions of s 104, there are a range of circumstances where I must impose a minimum period of imprisonment of 17 years or more, again unless I am satisfied it is manifestly unjust to do so.

Aggravating and mitigating factors

[28]     I now turn to the aggravating and mitigating factors of the offending.  The Crown  notes  that  the aggravating features  of the offending are that  it  involved targeted violence using a knife, the victim impact statements show significant loss resulted from the offending, and there was a degree of premeditation involved in that you left Christchurch with the intention of obtaining money and/or drugs from this particular address in Rangiora, and it could be reasonably have been inferred from the evidence that you Mr Baker would have been unlikely to obtain access to the victims which is why Mr Innes played the role of knocking on the door.

[29]     While  it  is  accepted  by  your  counsel,  Mr  Baker  that  those  features  are present, he submits they should not weigh significantly in the sentencing exercise. While a weapon was used, the charge of murder inevitably involves the use of lethal force in one way or another, and he says the death resulted from a single stab wound which unfortunately was fatal because of just precisely where it went in. A wound of

equal  force  inflicted  on  most  other parts  of  the body would  not  have  had  this outcome.

[30]     Similarly, your counsel’s submissions minimise the role of premeditation. While there was premeditation in relation to obtaining drugs, the attack itself was not obviously premeditated, rather your lawyer says it occurred because of the circumstances which arose when the Lochheads confronted you.   He also submits that the lack of premeditation is also consistent with your comments subsequently that your previous offending is not generally violence related, and you do not understand how you came to be violent in the way that it occurred.

[31]     In terms of aggravating or mitigating features relating to you as offenders, it is accepted by the Crown that the list of previous convictions that you Mr Baker have, includes only one for a violent offence in 2001, and is unlikely to aggravate the position on sentence.   There is nothing, except perhaps your recently expressed remorse, which is a mitigating factor relating to you.

[32]     In relation to you Mr Innes, you do have a lengthy criminal history, but it would appear that much of it is explained by the personal circumstances that I have already mentioned.  Furthermore, as your counsel points out, there is an absence of violence in your offending history and he says that you have an aversion to force being used on  others.    He also suggests that  you were under some duress and pressure from Mr Baker to participate in this offending.    I accept that  you are genuinely upset that death and injury has occurred in this case.

Starting Points - Murder

Section 104

[33]     In relation to the charge of murder, the Crown says that the circumstances of the offending are within s 104.  They say that section is satisfied in two ways.  First, the murder involved your unlawful presence in a dwelling place, and second the murder was committed in the course of committing another serious offence.

[34]   So the Crown submits that a starting point of around 17 to 18 years imprisonment should be imposed against you Mr Baker, and relies on comparisons with the offending in decisions of R v Nicholson & Cuthers,1  R v Watene,2  and R v Williams,3    where  s  104  applied,  and  where  in  similar  circumstances,  before mitigating features were taken into account, sentences of around 17  years were

considered appropriate by the sentencing judge.

[35]     I am satisfied that the evidence shows the murder was committed in the course of another serious offence, being an aggravated robbery, as you were demanding drugs from the Lochheads, while using a knife to threaten them.  Equally, while the attack took place in the doorway of the Lochheads’ home, which might seem to barely meet the threshold of being within a dwelling place, it was an attack

that was comparable with the one in a case of Pahau v R,4  because you Mr Baker,

were reaching towards someone who was trying to avail himself of the sanctuary of the home.

[36]     So as your counsel responsibly accepts, the elements of s 104(c) and (d) are therefore sufficiently involved to engage s 104.

[37]     Now as you have heard from submissions today, that does not mandate that a life sentence with a minimum period of imprisonment of 17 years must be imposed. Rather, as the Court of Appeal said in R v Williams, a two step approach should be adopted.  I must first assess the seriousness of the murder in the usual way, taking into account the aggravating and mitigating factors.   Where that suggests a lesser minimum non-parole period than 17 years, I must then consider whether it would be manifestly unjust to impose it despite meeting the s 104 criteria.  Now as Venning J

said, in the decision of R v Mackness,5

It is for the prisoner to show why that would be manifestly unjust and those words clearly impose a high threshold, not easily or lightly crossed.

1      R v Nicholson [2014] NZHC 334.

2      R v Watene HC Wellington CRI-2007-485-127, 11 December 2007.

3      R v Williams HC Auckland CRI-2008-092-13286, 13 May 2010.

4      Pahau v R [2011] NZCA 147 at [74].

5      R v Mackness HC Hamilton T023921, 14 April 2003 at [14].

[38]     Submissions from your counsel are that, having regard to the sentences in Watene, Nicholson & Cuthers and Williams, a minimum term of 14 years imprisonment would be appropriate and he argues that, on an overall assessment of the circumstances of the offence and the offender, there would be a clear injustice if a sentence of 17 years were to be imposed.   In support of that your lawyer says I should have regard to the lack of premeditation for a killing.   He says that it was likely that you were found guilty of murder on the basis of s 168 applying, that means that you intended to cause bodily injury in the course of a crime and that resulted in death.   You did not intend to cause death nor were you reckless as to whether death ensued in the sense of s 167.  He also says I should take into account that you are not by nature a violent person and that you are remorseful.  All these lead to a conclusion, say your lawyer, that a minimum term of 14 years would be appropriate.   He submits having regard to the factors I have discussed, that this murder overall lacks the sort of features which characterise the cases where Courts have considered that s 104 requires a minimum term of imprisonment of 17 years and it would be unjust if I did that.

[39]     Well I start by comparing this offending with that in R v Watene.  In that case two men went to an address with the intention of stealing drugs that they believed would be at that address.  They had earlier sent an accomplice who was to pretend to be playing no part in the robbery.  When they arrived, they produced a weapon and when the victim did not appear to be taking the attack seriously, the offender stabbed the victim in the knee with a knife.   He did so, in circumstances that were unprovoked.  The offender then stabbed the victim in the chest area.  Before leaving the offender placed a tourniquet on the victim’s leg but did not apply any similar treatment to the chest wound and the victim ultimately died from the chest wound. The offender subsequently pleaded guilty.   In that case, Mallon J held that these factors put the case above a 10 year period, but would not have led her to more than

17 years before the guilty plea was taken into account.

[40]     However,  considering  whether  it  would  be  manifestly  unjust  to  impose

17 years, Mallon J held that it was the fact of the guilty plea, that meant a minimum non-parole  period  of 17  years  would  be manifestly unjust  and  that  is  why she selected a minimum non-parole period of 15 years.

[41]     In  many  ways,  your  offending  is  comparable.     It  does  not  have  the aggravating feature of occurring while you were on parole for another offence, but it does not have the mitigating feature of leaving an accomplice to attend to the victim which was present in Watene.  However, importantly it does not have the mitigating feature of a guilty plea which reduced the 17 year starting point in that case.

[42]     Similarly,  in  Nicholson  &  Cuthers,  Lang  J  considered  that  but  for  the operation of s 104, a minimum term of 15 years imprisonment would be appropriate in circumstances where Mr Nicholson and another visited and killed their victim at night following a failed drug deal earlier in the day, and where Mr Nicholson was the one who delivered the fatal blows.

[43]     In R v Williams & Tumata, the defendants planned to do a stand-over robbery at a house where they believed they would find cannabis and money.  They armed themselves with a hammer and an unloaded pistol.  They grabbed one occupant from the house, demanding money and cannabis from him and striking him with the hammer and it was on hearing this noise that the second victim came out.  He was hit twice on the head with the hammer and died.  In that case despite s 104 applying, the sentencing judge took the view that overall, a 14 year minimum period of imprisonment was appropriate.

[44]     Having regard to these cases, and the aggravating and mitigating features I have referred to above, I am of the view that, but for the direction in s 104, life imprisonment with a minimum non-parole period of 14 years would be appropriate, but that is not the end of the issue. As the Court of Appeal said in R v Williams,6 the specified minimum period is not to be departed from lightly, a decision that the minimum term of 17 years is manifestly unjust:

can be reached only if the circumstances of the offence and the offender are such that the case does not fall within the band of culpability of a qualifying murder.  In that sense they will be exceptional but such cases need not be rare.  As well, the conclusion may be reached only on the basis of clearly demonstrable factors that withstand scrutiny.   Judges must guard against allowing discounts based on favourable subjective views of the case.  The sentencing discretion of judges is limited in that respect.

In that case a minimum non-parole of 15 years imposed by the sentencing judge was increased to 17 years.

[45]     The submission that the finding of murder was likely to be pursuant to s 168 does not, in my view, change that.  In the case of Kee v R,7 the Court of Appeal held that s 104 applies equally to murder under s 167 and s 168, and it is no answer to submit that the offending only amounted to murder because it was committed in the course of another serious offence.

[46]     I also observe that generally, although not exclusively, the mitigating factors which are relied upon to justify a departure from s 104 involve factors such as youth, a guilty plea, mental illness or other such circumstances.   I do not consider it is sufficient that the sentence is simply sterner than might otherwise apply if s 104 was not engaged.

[47]     In the present circumstances, I consider a minimum period of imprisonment of 17 years being imposed in this case would be stern, but not so objectionable that I consider it would be manifestly unjust.

Shaun Innes

[48]     I turn to you Mr Innes.  While the starting point for sentencing you Mr Innes, is, of course, s 104, I note that even the Crown, in their submissions, accept that this is a case where your culpability flows from the provisions of s 66(2) of the Crimes Act, and you did not take part in the altercation at the door, but left the address.  The Crown therefore accepts that, despite you being a party to murder, given your more limited involvement, it is open to me to decide that it would be manifestly unjust to impose a minimum of 17 years imprisonment and accept that I can therefore come down below that level.  The Crown proposes a starting point for you in the vicinity of 13 years.

[49]     Your lawyer, however, urges me to go further, because the next constraint on my sentencing is s 102.   It requires me to impose a life sentence, and then s 103

requires a minimum period of imprisonment of 10 years, unless a sentence of imprisonment for life would be manifestly unjust.

[50]     Your lawyer relies on the case of R v Cunnard,8 where, for the first time, the

Court of Appeal confirmed the trial judge’s decision to impose a finite sentence of

10 years on the basis that the offender was a secondary party and his degree of culpability was held to be significantly less from that of the principal, who received the mandatory life sentence with a minimum period of imprisonment of 10 years.

[51]     In that case, the trial judge observed of Mr Cunnard that:

Your culpability is very much less than [your co-offenders]. Section 66(2) casts  a  wide  net.  Your  status  as  a  party  to  murder  rests  on  your foreknowledge  of  the  likely  consequences  of  your  participation  in  the criminal purpose of engaging in a fight. However, you were not the leader, and it was not you who decided how the gun would be used.  ... you played a peripheral   role   in   the   actual   killing.   ...   you   did   not   encourage Mr McNaughton to [use the gun], nor did you want to see the gun used.

[52]     However, against that, the Judge accepted that the killing would not have happened without Mr Cunnard’s input because he brought the gun to the fight and the jury’s verdict meant that he knew there was a real or substantial possibility that someone from his group might use it with murderous intent.

[53]   The Court of Appeal in upholding the sentence imposed of 10 years imprisonment upheld the decision on the basis that the Judge’s factual findings that Mr Cunnard’s involvement in the offending was relatively limited was correct, if he was given the same sentence as his co-offender, that would be manifestly unjust to him as the less culpable offender, and his personal circumstances meant that, in combination, a sentence of life imprisonment would be manifestly unjust.

[54]     However,  the  Court  of Appeal  also  expressly  said  “as  in  all  cases,  the sentence is fact specific and the result is not intended to have precedential effect”. The Court of Appeal has also said in the decision Te Wini v R,9  that the manifestly unjust test for departing from the s 102 presumption in favour of life imprisonment

for murder is a stringent one.  In that case, even though counsel cited the High Court

8      R v Cunnard [2014] NZCA 138.

9      Te Wini v R [2013] NZCA 201.

decision in relation to the sentencing of Mr Cunnard,10 the Court of Appeal held the jurisprudence relating to s 102 “is now fairly settled”.  And indeed I could only find six cases where s 102 has been departed from, and they generally related to circumstances where the offender was very young, or where there had been abuse or mental  health  issues  which  meant  the  offender  was  less  culpable  than  might otherwise be.11

[55]     I accept that, for policy reasons enacted by Parliament, Mr Innes you are deemed to have committed murder under s 66(2) because of your common intention with Mr Baker to rob the Lochheads, with the knowledge that, at the very least, grievous bodily harm might be caused in the process.  You did not bring the knife, you did not wield the knife, and in fact you were gone by the time the knife was actually used.  While, but for playing your part, by knocking on the victim’s door, and attracting them to come outside, it may well be that the fatal assault might never have occurred, but that is I accept, the extent of your participation in the crime.

[56]     In  addition, despite  your extensive criminal record, it is not a record  of violence, and your periods of drug abuse do appear to be connected to the injury you suffered when you were younger.  The fact that you have been able to lead a normal family life, free of offending, when on the methadone programme, suggests to me that you have a greater ability to avoid reoffending with proper support and rehabilitation, than many others facing a charge of this severity.

[57]     I have no hesitation in saying that it would be unjust to apply the minimum period of imprisonment under s 104.  The far more difficult issue is whether this is a case where I should go further and invoke the exception in s 102.  This would be on the basis, not to differentiate your sentence from that from Mr Baker, (which I have already acknowledged must occur), but because of your significantly lower culpability, and your personal circumstances, where your drug abuse and impulsive

behaviour has a cause which is not of entirely of your own making, and where, with

10     R v McNaughton [2012] NZHC 815.

11     R  v  Law  (2002)  19  CRNZ  500  (HC);  R  v  Nelson  [2012]  NZHC  3570;  R  v  Rihia

[2012] NZHC 2720; R v McNaughton, above n 10; R v Reid HC Auckland CRI-2008-090-2203,
4 February 2011; R v Wihongi HC Napier CRI-2009-041-2096, 30 August 2010.

support, you have demonstrated that you can live a normal and productive life.   I

have decided that this is a case where I can depart from s 102.

Aggravating wounding

[58]     I   am   going   to   deal   briefly   with   the   aggravated   wounding   charge. Understandably as the sentence for aggravated wounding will be served concurrently with the sentence for murder, counsel’s sentencing submissions did not focus on this, although Mr Baker, your lawyer proposed a sentence of five years as appropriate.

[59]     Sentencing for that offence is encompassed by the guideline judgment of the Court of Appeal in R v Taueki.12    In that case, the Court outlined sentencing bands, depending on the number of aggravating factors identified in the offending.

[60]     In this case, the relevant aggravating factors are that there was a degree of premeditation, the use of a knife as a weapon, and the element of home invasion already discussed. The offending in this case therefore falls into band 2 of the Taueki guidelines which provides that a sentence between five to 10 years is appropriate. However, I consider that a starting point in the lower level of the band is appropriate, because, although the factors of premeditation and unlawful presence in the home were there, they were not present in their most serious form.  The Court also noted that where there are multiple offenders with different levels of involvement the actual culpability of each offender must be assessed.

[61]     For you Mr Baker, a starting point in the lower end of this band such as is proposed by your lawyer, is appropriate, and I do not consider there are further aggravating or mitigating factors that warrant an adjustment to such a starting point.

[62]     Mr Innes you were undoubtedly less involved in the aggravated wounding offending than Mr Baker, in much the same way that you were less culpable than Mr Baker with respect to the murder offending.   In my view, your culpability is diminished enough to warrant adopting a starting point at the lower end of band 1,

which takes into account, as a mitigating factor, that there was limited involvement in the offence on your part.13

Sentence

[Invite prisoners to stand].

[63]     In summary, Mr Baker and Mr Innes the sentences I have decided on are as follows:

[64]     Mr Baker

(a)      you are sentenced to life imprisonment on the charge of murder with a minimum period of imprisonment of 17 years, as mandated by s 104;

(b)you are a sentenced to a term of five  years imprisonment on the aggravated robbery charge, to be served concurrently.

[65]     Mr Innes

(a)      I am satisfied that this is one of those rare cases where it would be unjust to sentence you to life imprisonment, even with a minimum non-parole period of 10 years.  Instead I sentence you to a fixed term sentence of 10 years.

(b)You are sentenced to a term of three years imprisonment on the aggravated robbery charge to be served concurrently.

(c)       I am not going to impose a minimum period of imprisonment.

[66]     I am also required at this stage to give you what is commonly known as, or called a three strikes warning.  This will also be given to you in writing later this morning.   The warning is that if you are convicted of any serious violent offence except murder committed after you receive this warning, you will receive a final

warning.  In addition, if a Judge imposes a sentence of imprisonment for that offence (other than life imprisonment for murder, or preventive detention) then you will serve that sentence without parole or early release.

[67]     If you are convicted of a murder committed after you have received this warning  you  will  be  sentenced  to  life  imprisonment.    You  must  serve  the  life sentence without parole unless it would be manifestly unjust to do so.  If you receive a life sentence without parole, you will not be released from prison.  If serving that sentence without parole would be manifestly unjust, the Judge must specify the minimum term of imprisonment you will serve.

[Stand prisoners down].

Solicitors:

Raymond Donnelly and Co. Christchurch

M J Knowles, Barrister, Christchurch

AND Garrett, Barrister, Christchurch

G H Nation, Wynn Williams & Co., Christchurch