R v Job HC Whangarei CRI 2009-029-1324
[2010] NZHC 1757
•7 October 2010
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2009-029-001324
THE QUEEN
v
JAMEEL JOB
Hearing: 7 October 2010
Appearances: M Smith for Crown
D J Blaikie for Prisoner
Judgment: 7 October 2010
SENTENCING NOTES OF ANDREWS J
Solicitors: Marsden Woods, Inskip & Smith, P O Box 146, Whangarei 0110
Douglas J Blaikie, P O Box 382, Kaikohe 0440
R V JOB HC WHA CRI 2009-029-001324 [7 October 2010]
Charges
[1] Jameel Job you appear for sentencing today having pleaded guilty to the murder of Mrs Barbara Julian in Kaitaia on 4 November 2009. You were charged with a second offence, but the Crown does not offer any evidence on that and in due course I will discharge you on that matter.
[2] Under s 102 of our Sentencing Act 2002, I must sentence you to imprisonment for life unless, given your own circumstances, and the circumstances of the offence, a sentence of life imprisonment would be manifestly unjust. As Mr Blaikie has made it quite clear, it is not contended on your behalf that your sentence should not be one of life imprisonment. The sentence that will be imposed on you will be imprisonment for life. What I have had to determine today, and indeed what has been the focus of the submissions made to me, is what should be the minimum period of imprisonment you must serve before you are eligible to apply for release on parole. Whether you are released on parole is not a matter for me or the Court, it is a matter for the Parole Board. I would add that if you are released on parole, you will be subject to parole conditions for the rest of your life. That is what imprisonment for life means.
Relevant facts
[3] I must begin by setting out the facts of your offending. Your victim, Mrs Julian, was a 70 year old widow living alone in Kaitaia. She was semi-retired in that, having been a teacher for some 50 years, she was still active in part time teaching and remedial teaching, and still actively involved with her family and with her local community.
[4] From early afternoon on the 4th of November 2009 Kaitaia Police responded to a number of calls of a man – identified as being you – behaving in an aggressive and disorderly manner in the general area around Mrs Julian’s home. For example, you were flagging down motorists and beating the bonnets and doors of their cars, and you confronted a man in his home, demanding cigarettes, alcohol, drugs, and
money. You were last seen walking northwards up Mrs Julian’s street, towards her
house.
[5] At about 4.30 that afternoon, friends of Mrs Julian went to her house. They had a regular Wednesday afternoon get-together. They were concerned to see that all the curtains had been pulled shut, and that was out of character for her at that time of day, they were not able to raise her. One of the friends than noticed men’s clothing outside of the house and became concerned for Mrs Julian’s welfare. They asked the next-door neighbour, to help them get into the house. As the neighbour was coming across to Mrs Julian’s property he saw a man wearing a white bathrobe (he later identified that person as you) leaving the front porch of Mrs Julian’s house and walking up the street. You were also seen by a motorist driving along the street, and then later by another resident in the street. The bathrobe was found in a rubbish bin behind this house, it had the name of Mrs Julian’s deceased husband on it.
[6] The neighbour and Mrs Julian’s friends later went into Mrs Julian’s house at about 5.30 pm. They found Mrs Julian lying on her back in the lounge. The police were called immediately.
[7] You were then seen again at about 7.00 pm, in the back yard of a house in the same street. The Police were alerted. You went into yet another property, and you were found there. You had blood smears on your left ear, and blood stains on your jeans.
[8] Mrs Julian was lying on her back in the area between the kitchen and lounge. She had her clothes removed from the waist down, and some of her upper clothing had been removed. A thick substance had been poured over her face, hands, and upper chest area. She had extensive injuries. The pathologists’ evidence, in summary, was that she suffered multiple blunt trauma injuries, including fractures to several ribs, lacerations (caused by a bottle) to her face, lacerations to the fingers of both hands and a fractured middle finger, and a fractured arm. There was also evidence of haemorrhages on the left side of her face, suggesting that she had been held in a neck hold.
[9] Mr Blaikie has, on the basis of his instructions from you, given some indication of what occurred in Mrs Julian’s home. You went into the house with the intention of committing a burglary. Mrs Julian was there preparing food for her friends for the Wednesday afternoon get-together. She came towards you, demanding that you leave the house. She had every right to do that. She was holding a harmless butter knife. You then picked up a glass cordial bottle and struck her to her head, her arm, and her hands, as she tried to defend herself. A struggle developed and you placed Mrs Julian in a head lock and punched her a number of times. It appears that she lost consciousness because of the restriction to her blood supply. You then lowered her to the ground.
[10] You have said that you attempted resuscitation of Mrs Julian when you saw that she was not breathing, and that that may have caused the rib fractures. The Crown pathologists were of the view that the rib fractures were consistent with Mrs Julian having been kicked. I do not have to decide whether the rib fractures were from kicks or attempts at resuscitation. What is clear is that Mrs Julian suffered a number of very serious injuries, and you caused those injuries. Mrs Julian’s death resulted from the injuries she suffered at your hands.
[11] You were charged with causing Mrs Julian’s death in the course of committing a burglary at her home. You subsequently entered a plea of guilty to that charge. I note that you have two previous convictions, one of which was the burglary.
Victim impact statements
[12] I turn now to the victim impact statements. I have received and I have read carefully Victim Impact Statements from a large number of people: from her son (who spoke also for his sister, Mrs Julian’s daughter) and his wife, four of Mrs Julian’s six siblings – her sister and brothers, her sister in law, three of her nieces, and one of Mrs Julian’s neighbours.
[13] I am not going to go through what they have said, individually, in detail, but I
want to summarise something of what they have said so that you can understand, to
some extent, what sort of a person Mrs Julian was, and what was the effect of what you did to her on the members of her family, and the local community.
[14] The next-door neighbour, was one of the ones who had the dreadful experience of finding Mrs Julian. The trauma of that experience will live with her forever, and I was relieved to read that from the community she has been much assisted by marvellous support from people around her.
[15] I am going to quote, a little, from some of the Victim Statements.
[16] Mrs Julian’s brother, described her in this way:
She was the matriarch of the family after my mother’s death in 1981 and had a remarkable memory about the details of our lives while growing up and the various things that had happened to us and we used to consult her for those details of the past. She was in effect the family archive. Additionally she was in good health and a warm and wonderful person who showed affection and got along well with all of us, someone we had come to take for granted as she was always there and welcoming any time we visited.
[17] One of her sisters said the following:
While the newspaper reports described her as ―elderly‖, she certainly did not have an elderly mind. She had a memory like a trap and could always remember everything from ancient family history to what was happening in world affairs. She had been teaching for 50 years and was still doing the occasional relieving day and some regular coaching for a local Kaitaia boy. We used to joke that she was probably onto her fourth generation of kids by now. Her work as a teacher and with the Rural Education Activities Programme meant that she made a difference in the lives of thousands of children in the Far North.
She goes on to say:
One thing which really strikes me is just how many people have been affected by Barbara’s murder. Not only her close family and friends, but all the people she had taught over 50 years, their families, people she knew all over Northland and further afield. Those people alone would number in the thousands.
[18] Mrs Julian’s daughter in law said the following:
At the time of her funeral it was very obvious how well known and respected
Barbara was; people came from all over the place, both nationally and
internationally, from all walks of life. The numbers of people that came that day exceeded 900 plus, easily.
[19] One of Mrs Julian’s nieces talked about, what she called, the ―Far North Way‖ by which many people who are not family by blood are often thought of as whanaunga. She said that Mrs Julian’s death has changed the easy relationship that she and her family had with your own wider whanau.
[20] As another of Mrs Julian’s brothers said, Mrs Julian is no longer there to reach out and help and assist children in need of the skills she offered, to comfort and encourage fellow cancer victims and survivors through her compassion, empathy, and fundraising skills, to co-ordinate the community around her to encourage and support each other through social interaction, or to continue to love and care for her children and grandchildren.
[21] I turn now to summarise, to the extent that I can, the impact of her death on her family. All speak of the trauma of the sudden loss of a much loved mother, grandmother, and sister, and of children who will not have her with them, and grandchildren who will not have their Nana to watch them grow and develop, to arrange birthdays and Christmas. Mrs Julian’s son says that one of the hardest things to deal with has been the violence of her death. His mother was, he said, a passive person who hated violence and aggression in any form, and to have to face the facts of the particular manner of her death – the violence and cruelty – has been an enormous trauma for him, his wife, his sister, and his children to come to terms with.
[22] Members of Mrs Julian’s family are haunted by the terror and helplessness she must have felt when confronted by you, and the brutal assault you inflicted. Mrs Julian was physically frail and could not in any way have been a threat to you but nonetheless you attacked her with a bottle and hit or kicked her violently. All of the family every day feel the shock, the anger, the revulsion, the loss, and the sadness. Some have required counselling, and that is a position they never would have thought they would be in.
[23] It is in my view particularly significant that many of the people who have suffered the full impact of your offending are themselves elderly, some are to some
extent frail, so the impact on them has been particularly severe, as they may not have the strength and resilience that a younger person might have.
Pre-sentence report
[24] I turn now to consider the pre-sentence report. You are 18 years old now and were 17 at the time of this offending. You are the eldest of seven siblings, and between you and your siblings there are four different fathers. You had little contact with your mother while you were younger, although I am told that you now have a cellphone number for her and understand that she lives somewhere in Auckland. From the age of three you were raised by different family members due to your mother’s inability to take care of you. You were taken in by a number of different members of your whanau in Auckland, Whangarei, and Kaitaia, and physical and mental abuse was commonplace throughout your childhood. When talking to the probation officer you gave examples of being beaten with a spade, and having bruising over most of your body. You remember being locked in a room while the residents of whichever house you were living in were drinking, and that the occupants would regularly forget about your being there.
[25] You left school at 17 without any qualifications, and without gaining much (if any) benefit from what you were taught. The probation officer reported that you had struggled with understanding oral and written directions. However, at the time of your offending you had been able to secure a job.
[26] An assessment showed that you have harmful patterns of alcohol and drug abuse, and with gambling. You told the probation officer that at the time of your offending you were intoxicated, and had taken a cocktail of drugs that included cannabis, solvents, tranquillisers, and methamphetamine.
[27] You have become aware of the diagnosis made by the psychiatrists – I will refer to these separately – and you told the probation officer that there is no way that you could have done what you did had you not been having what you think (now) was a schizophrenic attack, and were drunk and influenced by the other drugs. I note that you are not trying to hide behind the diagnosis of a mental illness, and you said
that you (yourself) are against violence, because you have had a lifetime of it being directed at you.
[28] You gave the probation officer a letter of apology addressed to Mrs Julian’s family. I have read the letter, and perhaps, when Mrs Julian’s family is ready, they may wish to read it too. I hope that they will. You say that you are sincerely and truly sorry, from deep down inside your heart.
Psychiatrists’ reports
[29] I have also read a number of reports prepared by psychiatrists. You were assessed in late August this year for the purposes of sentencing, and you were also assessed a number of times after your arrest. The most recent report records that you have a history of conduct disorder in childhood, substance abuse throughout adolescence and a history of threats and violence towards others. This report also recorded that you come from an unstable family background, with few regulating or stabilising influences in your immediate circle.
[30] You presented to the Psychiatrists with a number of self-reports of psychotic phenomena and you were provisionally diagnosed with schizophrenia, paranoid subtype, and for polysubstance abuse, and alcohol abuse. I note that when you are serving your term of imprisonment you will be monitored by the Regional Forensic Psychiatry Services team, with appropriate medication.
[31] To some extent there are some conflicting views in the Psychiatrists’ reports but I have read all of the reports and I take them into account. I note that you were not defined, in the legal sense, as insane at the time of your offending. You were assessed as being fit to stand trial and to plead, and you were found not to have been insane at the time of your offending. For the purposes of sentencing today I accept that you have a psychiatric illness.
Sentencing process
[32] Having referred to the statements and the reports I have received, I turn now to the sentencing process.
[33] First I must refer to what are the purposes and principles of sentencing. First the purposes of sentencing. The first purpose is to hold you accountable – to make you responsible for your offending. Secondly, to denounce your offending. That means to tell you that your offending is not acceptable. Thirdly, I have to consider deterrence, in particular of others and fourthly, I have to consider protection of the community. At the same time, under our Sentencing Act, the purpose of any sentencing of any offender is to help you with getting back into the community to be a useful member of it.
[34] As to the principles of sentencing, I consider the gravity of your offending, including your own culpability for it; I consider the seriousness of your offending in comparison with other types of offences, and the general desirability of maintaining consistency in sentencing levels.
[35] I must take into account the information I have been provided about the effect of the offending on the victims of your offending, and I am directed to impose the least restrictive outcome that is appropriate in the circumstances and to take into account any particular circumstances relating to you that mean that any particular sentence would be disproportionately severe.
[36] I must also take into account the fact that you were 17 at the time this occurred, and that you entered a guilty plea soon after it was determined that you were fit to stand trial.
[37] As I said at the start, a sentence of life imprisonment must be imposed in your case. In sentencing you today I have to decide what should be set as the minimum period you are required to serve before you could apply for release on parole. Under s 104 of the Sentencing Act, there are certain specified circumstances
in which I must impose a minimum period of imprisonment of at least 17 years, unless I am satisfied that it would be manifestly unjust to do so.
[38] When s 104 is raised, I must assess the presence or absence of the circumstances listed in that section, and I must have regard to the policy of s 104 which is that, in general, the presence of one or more of the factors establishes that the murder is sufficiently serious to justify a minimum period of imprisonment of at least 17 years.
[39] Then, if any of the s 104 circumstances are present, I must consider whether it would be manifestly unjust to impose a minimum term to the extent that I have decided would be appropriate. It has been made clear, in the judgment of the Court of Appeal in R v Williams,[1] that the Court may not approach sentencing in cases where s 104 applies, on the basis that the minimum can be reduced whenever the Court considers it appropriate. It must be considered in a principled way.
[1] R v Williams [2005] 2 NZLR 506 (CA) at [54].
[40] I turn first to consider the s 104 factors.
[41] Mr Smith, on behalf of the Crown, submitted that five of the specified circumstances apply in your case.
a) First, he submitted, you entered Mrs Julian’s home and, being confronted by her, attacked her and incapacitated (that is, killed) her in order to avoid detection.
b)Second, he submitted that the murder involved your unlawful entry into Mrs Julian’s home.
c) Third, he submitted that the murder was committed in the course of another serious offence – that is, in the course of the burglary of Mrs
Julian’s home.
d)Fourth, Mr Smith submitted that the murder was committed with a high level of brutality, cruelty, depravity, or callousness. Mr Smith referred to the serious injuries you inflicted on Mrs Julian, the removal of her clothing, and the substance poured over her – it seems in an attempt to disguise what you had done.
e) Fifth, he submitted that Mrs Julian was particularly vulnerable because of her age and frailty, and the fact that she was living alone.
[42] In the light of those circumstances, Mr Smith submitted, a minimum period of imprisonment of at least 17 years should be imposed and he submitted that the minimum period should in fact be rather more than 17 years.
[43] Mr Blaikie, on your behalf, acknowledged that some of those factors applied. He accepted that the murder involved your unlawful entry, that it was committed in the course of another serious offence, and that Mrs Julian was particularly vulnerable because of her age and frailty.
[44] Mr Blaikie did not accept, on your behalf, that you killed Mrs Julian in an attempt to escape detection. I am not required to decide that point. But it appears that you did remove clothes and cover her with a substance for some purpose, perhaps to remove or disguise evidence of what had occurred. I am in no doubt that the murder involved an unlawful entry into Mr Julian’s home, and that Mrs Julian was murdered in the course of your committing a burglary there. I am also in no doubt that Mrs Julian was particularly vulnerable because of her age, her frail physical condition, and that fact that she lived alone.
[45] Finally, I accept that there was brutality in the injuries you inflicted. Even if it were accepted, and again I do not have to decide this, that you were trying to resuscitate Mrs Julian, what you did caused her to suffer several broken ribs. Further, at some stage you had her in a neck hold that would also have caused serious injury, and indeed you struck at her with all bottle.
[46] I conclude that s 104 applies, and that given the nature of your offending, and your overall culpability, I have concluded that a minimum period of imprisonment of
19 years should be imposed, unless I am satisfied that it is manifestly unjust to do so. I do not accept Mr Blaikie’s submissions on your behalf I should not exceed 17 years. I have concluded that the circumstances of Mrs Julian’s death simply do not permit that. So I turn to consider whether it would be unjust to impose a minimum period of more than 17 years.
[47] First, I will refer again to the judgment of the Court of Appeal in
R v Williams which I referred to before. At [67] of its judgment the Court said this:[2]
... a minimum term of 17 years will be manifestly unjust where the Judge decides as a matter of overall impression that the case falls outside the scope of the legislative policy that murders with specified features are sufficiently serious to justify at least that term. That conclusion 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 objective 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.
[2] At [67].
[48] It was made clear by the Court of Appeal in R v Williams,[3] and in another judgment of the Court of Appeal in R v Rapira,[4] that the meaning of ―manifestly unjust‖ is to be ascertained by reference to the purposes and principles of sentencing as they are set out in sections 7, 8, and 9 of the Sentencing Act.
[3] At [56].
[4] R v Rapira [2003] 3 NZLR 794 (CA) at [121].
[49] Your age at the time of offending, the psychiatric reports as to your mental condition, your guilty plea, and other matters relating to you, personally, will all play some part in considering whether it would be manifestly unjust to impose a minimum term of more than 17 years imprisonment. I also bear in mind the observation of the Court of Appeal in R v Parrish[5] that manifest injustice is more likely to come from the circumstances of the offending, rather than the
circumstances of the offender.
[5] R v Parrish (2003) 21 CRNZ 571(CA) at [21].
[50] To assist me in considering whether it would be manifestly unjust to order that you serve a minimum period of 19 years imprisonment before being eligible to be considered for parole, I have referred to cases where the issue has been considered and the circumstances have some similarity to yours. To those who are listening to this sentencing judgment you will have observed from the references of counsel that there has been a wide variety both in the circumstances of offending and in the assessment of those circumstances in individual cases. What Mr Smith said in his submissions is absolutely correct — to some extent what one is trying to do is to compare what simply cannot be compared.
[51] But I will refer to a number of cases, most of which have already been referred to by counsel:
[52] First, was the case of R v Tumahai.[6] In that case the offender entered a guilty plea and that resulted in a reduction of three years from a minimum period of 17 years.
[6] R v Tumahai CA 262/04 26 October 2004.
[53] I next refer to the sentencing of R v Slade.[7] In that case there were two offenders, both of whom were 16 years old. In the High Court a 17 year minimum period of imprisonment was imposed. On appeal, the Court of Appeal maintained that term for one of the offenders, described as being the more violent, with little appreciation of what he had done. The other offender had a more peripheral role, was not the principal perpetrator. For that offender the minimum term was reduced to ten years. Significantly in that case the Court of Appeal noted that Parliament had not created any specific age or youth exemption to the s 104 minimum term.
[7] R v Slade [2005] 2 NZLR 526 (CA).
[54] Next the case of R v Trevithick,[8] in 2007. The offender there was 15, and had killed a 77 year-old widow. A guilty plea was entered. Because of the offender’s age, guilty plea, and what was described as limited emotional maturity, a minimum
period of imprisonment before parole of 14 years was imposed.
[8] R v Trevithick HC Auckland CRI-2007-244-9, 19 June 2007.
[55] Next, the case of R v Goodman.[9] That involved an adult offender, so of course in that respect it is not similar to your case. The elderly victim, who was at home alone, was killed in the course of a burglary. There was no guilty plea and in that case a 19 year minimum period of imprisonment was applied.
[9] R v Goodman [2008[ NZCA 384, 23 September 2008.
[56] In the case of R v Churchward & Te Wini.[10] The two offenders were 14 and
17 at the time of their offending. They did not enter guilty pleas but were found guilty at trial. The victim was 78, and in ill health, and he was killed in the course of a burglary at his house. He was killed by some 20 blows to his body with a solid wooden staff. A minimum period of imprisonment before parole was imposed of 17 years for each offender, notwithstanding their young ages.
[10] R v Churchward & Te Wini HC Tauranga CRI-2008-270-361, 18 December 2009.
[57] The last case that I will refer to is that of R v Ah You,[11] in June this year. The offender there was 30 and killed his 80-year old victim, who was home alone, in the course of a robbery or burglary. He had tried to strangle his victim, knocked her to the floor, kicked or stomped on her chest. The offender had what the Judge described as an ―appalling record‖. He was found guilty at trial. A minimum period of imprisonment before eligibility for parole of 20 years was imposed.
[11] R v Ah You HC Auckland CRI-2008-092-019108, 4 June 2010.
[58] Having reviewed those factors I turn to your own case. I consider first the factors other than your guilty plea. I accept that the factors of your very disadvantaged (I could describe it as horrific) upbringing and your psychiatric problems would make it manifestly unjust to impose a minimum period of imprisonment before parole exceeding 17 years. So, too, and in my view more significantly, does your guilty plea. I accept that you pleaded guilty to the charge as soon as practicable after it was determined that you were fit to plead and stand trial.
[59] I take into account the psychiatric reports concerning your mental illness, the circumstances of your upbringing, what Mr Blaikie described as a lack of emotional nourishment, and your remorse and insight for what occurred. Mr Blaikie submitted that I should set a minimum period of imprisonment of 11 to 12 years. I do not accept that that is appropriate. But nor do I accept the Crown’s submission that the
minimum period, even considering your guilty plea, should be higher than 17 years.
[60] I consider that there should be a recognition of your guilty plea, and that not to do so would be manifestly unjust. I would like to refer in this respect to the judgment of the Court of Appeal in R v Hessell,[12] when at [73] of that judgment the Court of Appeal quoted from the Law Commission’ recommendations with respect to guilty pleas. What the Court of Appeal there quoted was the following:
It is desirable to recognise a guilty plea when setting a minimum period of imprisonment in conjunction with all life sentence for murder ... Where murder is concerned, for example, a policy of not recognising a plea provides little incentive for offenders to plead guilty and may therefore result in delays in disposing of murder cases and an increase in trauma, stress and inconvenience of the families of murder victims. While [the] guideline may help to determine the appropriate reduction as applied to a minimum period of imprisonment the amount of reduction is at the Judge’s discretion.
[12] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.
[61] On that basis I accept that there must be recognition for your guilty plea and your acceptance of your own responsibility for your offending. I accept that, in the words of the Law Commission, it has assisted in reducing the ―trauma, stress and inconvenience‖ for the family of your victim.
[62] In the end, I have had to consider all of the factors, and decide what the appropriate term is that you must serve before you are eligible for consideration for parole. I have concluded that the appropriate period is 15 years.
[63] Would you please stand.
Sentence
[64] Mr Job, on the charge of murder, you are convicted and sentenced to life imprisonment.
[65] I direct that you are to serve a minimum term of 15 years before being eligible for consideration for release on parole.
[66] On count 2 in the indictment, you are discharged.
[67] I want to make it quite clear, both to you and to Mrs Julian’s family and friends, that you are not being sentenced to imprisonment for 15 years. You are being sentenced to life imprisonment. The period of 15 years I have just referred to is the minimum period you must serve before you will be eligible to apply to be considered for release on parole. Whether or not you are released then, or at any later time, will be a matter for the Parole Board, and if you are released you will be subject to conditions of parole for the rest of your life.
[68] Would you please stand down.
Andrews J
0
2
0