R v Jones
[2014] NZHC 1207
•30 May 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2013-035-53 [2014] NZHC 1207
THE QUEEN
v
TARIANA HINETEANAURANGI JONES TONI MAREE MILLER
MATTHEW JOHN MCKINNEY KRISTOFER LEE JONES HAYDEN RANSON
Counsel: G J Burston and A C Whittaker for the Crown
J K W Blathwayt and P M Sullivan for T Jones
C L Elder and J L Avery for Miller
I M Antunovic and C L Parkin for McKinney
P V Paino and S M M Bolland for K Jones
O S Winter for RansonSentence:
30 May 2014
SENTENCING REMARKS OF MACKENZIE J
[1] Tariana Jones, Matthew McKinney, Kristofer Jones and Hayden Ranson, you appear for sentence having been found guilty at trial of the murder of Glen Jones. You are also to be sentenced for an associated count of aggravated burglary. Toni Miller, you appear for sentence having been found guilty of that aggravated burglary.
[2] On Friday, 11 January 2013, the five of you were gathered with others at Tariana Jones’ house in Masterton. A plan was developed to drive to Featherston to exact retribution from the victim Glen Jones for what you perceived to be an
allegation that he had raped a woman who was close to some of you. I need to say
R v JONES [2014] NZHC 1207 [30 May 2014]
something about that allegation. In the course of the events of 11 January you took Mr Jones’ life. In the course of the trial, because that allegation necessarily featured in it, you took his reputation also. It is appropriate that I should address the damage to his reputation, for the sake of his family, and for the sake of his memory. My comments are based on reliable evidence not called at your trial, because it was not relevant. It described the allegations and the investigation into them. A thorough and timely investigation of the complainant’s allegations was made. The inquiry could not be finalised because of Mr Jones’ death. The results of the investigation described did not support the allegation which had been made. Any slur on Mr Jones’ reputation as a result of the complaint is not justified, and it is to the credit of you Mr Jones, and you Mr McKinney that you have both now acknowledged that.
[3] I say also that the complainant in that complaint bears no responsibility for what you did. She told some of you about her allegation, but she specifically asked that you not do anything and that you leave it to the police. She did not encourage any action by you. You took it upon yourselves to take vigilante action. That is never acceptable. It would not have diminished your culpability if there had been substance to the allegation. But there was not.
[4] The prime instigators of the decision to go and take retribution against Mr Jones were you Tariana Jones and you Toni Miller. It was the two of you who, on that Friday evening and earlier, initiated a plan to go to Featherston. All five of you intended before you left Masterton that Mr Jones would be beaten. You took weapons, two axe handles and a wooden bat, with you from Masterton for this purpose. You five, with three others, proceeded in two cars to Featherston. Six of that group then went towards Mr Jones’ flat. You Toni Miller and one other did not go in. You stayed on the street outside. The other four of you went into the flat and demanded entry. You had taken two of the weapons from the cars with you.
[5] You subjected Mr Jones to a savage and brutal beating by hitting him with the weapons, and kicking him. The pathologist identified over 30 separate injuries, some quite minor but many of them very severe. These included the fatal injuries which fractured Mr Jones’ skull and caused bruising and swelling of the brain, and a large loss of circulating blood volume, resulting in his death.
[6] After your horrific and frenzied attack you left the flat and ran off. Mr Jones’ injuries were so severe that when ambulance officers arrived, very shortly after you had left, Mr Jones was already clinically dead. Resuscitation efforts were unsuccessful.
[7] The effect on Mr Jones’ family has been profound. His mother, Mrs Jones, gave evidence at your trial. She displayed courage in doing so. The depth of her grief was very apparent in the witness box. The victim impact statements from other family members paint a picture of a loving and caring family whose love for Mr Jones reflected the struggles and challenges which he had faced throughout his life. His death has left a deep sense of loss in the family. His brother, Mr Jones, has read his statement today. That again is an act of considerable courage on his part. No one who heard that could fail to be deeply moved by the statement and the impact which it has had on the family. The number of Mr Jones’ family who are present in Court today is a fine and fitting tribute to his memory. His workmates also feel the loss of a well-liked workmate. They are struggling to come to terms with the manner of his death.
[8] The law requires that on the count of murder I impose a sentence of life imprisonment unless it would be manifestly unjust to do so. A sentence of life imprisonment would not be manifestly unjust for any of the four of you who face that charge. It is not possible to say on the evidence at trial which of you four inflicted the fatal injuries. The severity of those injuries fully supports the jury’s finding that whoever inflicted those injuries had murderous intent. Each of you was a party to the infliction of the fatal injuries, by your actions in all entering the flat together, with the weapons, intending to cause serious injury. I am satisfied that each of you knew that the injuries which you as a group intended to cause were likely to result in death. You all carried on with that knowledge and in deliberate disregard of that risk of death. You all aided and encouraged each other in the infliction of those injuries, with that knowledge and disregard of the risk of death. Each of you four is responsible for the murder of Mr Jones.
[9] I must fix a minimum period of imprisonment. The law prescribes that in some cases the minimum period of imprisonment must be at least 17 years, unless
that period would be manifestly unjust. This is one of those cases. That is so because the murder involved your unlawful entry into a dwelling place. There are other factors which also trigger that 17 year minimum, which I take into account.
[10] I first fix a notional minimum period for the offending, having regard to all of the aggravating and mitigating features of the offending.
[11] There are a number of aggravating factors in the offending. The murder involved the unlawful entry into Mr Jones’ flat. That unlawful entry is reflected in the aggravated burglary charge. This home invasion is a significantly aggravating feature. It was a very serious intrusion. Four of you burst into Mr Jones’ flat in the middle of the night and immediately set upon him with weapons when he was completely defenceless and taken by surprise. The shock and trauma which he must have suffered in the brief period he remained alive after your entry must have been extreme.
[12] The murder was committed with a high degree of brutality. This was a savage attack, which displayed a complete insensitivity to the victim. There were two weapons taken to the scene and used. The post mortem photographs show very graphically the brutality of the attack. You left Mr Jones dying and made no attempt to obtain assistance for him.
[13] Mr Jones was smaller than most of you. He had a degree of a disability from a childhood illness that had left him very weak in the right side of his body and he was uncoordinated and almost totally blind in his right eye. This, together with the fact that he was taken by surprise and not able to defend himself, meant that he was a vulnerable victim.
[14] The attack was premeditated and planned. You had formulated a plan to travel to Featherston in two cars. Some of you had gone to collect weapons to take with you. I accept that you did not in your planning form a premeditated intent to kill Mr Jones. But the escalation of the attack to a stage where you all had murderous intent was a consequence of a planned and premeditated attack.
[15] This was a vigilante attack in which you took the law into your own hands for what you understood the victim had done to a person close to you. As I have described, you were wrong in that understanding. But, even if you had not been, this is a seriously aggravating feature of the offending.
[16] Some of the aggravating features are matters which are prescribed as requiring a minimum period of not less than 17 years. I take that statutory policy into account in fixing the notional minimum period. There are no mitigating features of the offending to be taken into account. Having regard to the circumstances of the offending itself, and before taking into account your individual culpability and any personal factors, I regard the offending as requiring for the offender who actually inflicted the fatal injuries a notional minimum period of 20 years.
[17] The next stage is to consider the respective culpability of each of you in the offending, and any personal aggravating or mitigating circumstances, to decide the minimum period appropriate for each of you. In doing that, I consider whether the imposition of a minimum term of 17 years would be manifestly unjust for all or any of you.
[18] The actual extent to which each of you was involved cannot be precisely determined either from the jury’s verdict or from my assessment of the evidence at trial. Each of you has sought through your counsel to play down your participation in the infliction of the fatal injuries. In assessing your individual culpability for the offence, I bear in mind that it is not generally appropriate in a group attack such as this to make fine distinctions as to culpability based on the degree of actual participation. Those who provide assistance in a group attack may be equally culpable with those who actually inflict the blows. This was a frenzied attack, fuelled by alcohol and a mob mentality. None of you has a record of serious violence and I think that none of you, acting alone, would have been likely to have inflicted such serious injuries. But collectively, a mindless mob mentality took hold of you and led you to commit this murderous attack. In those circumstances, fine distinctions as to the level of your involvement in the planning, or speculation as to which of you may have used the two weapons, are not appropriate.
[19] I consider that some reduction from the starting point, which I have identified as appropriate for any participant who had actually inflicted the fatal injuries, is required to reflect the fact that I am unable to identify which of you did inflict those blows. That would potentially take the appropriate starting point, assessing your culpability as secondary parties, down towards the 17 year minimum prescribed. The required reduction is not so great that a 17 year minimum would be manifestly unjust, for the reasons I have given.
[20] I now turn to apply that assessment to each of you, based on your involvement, so far as I can make findings about that, and having regard to aggravating and mitigating personal circumstances.
[21] Tariana Jones, your counsel acknowledges that you were one of those who decided to go to Featherston to confront Mr Jones, and that a weapon belonging to you was used. He submits that you entered the flat only to bring the attack to an end. He submits that if I was to accept that you did not yourself inflict any of the blows which caused death, this might make a sentence of life imprisonment manifestly unjust. As I have already said, this is not so. The level of culpability which you bear, as a secondary participant, is much greater than that. You were one of the instigators of the plan to travel to Featherston, and you must bear responsibility for what followed. You participated in the attack itself. It is implicit in the jury’s verdict that, when the fatal blows were struck, you knew that death was a likely outcome. You took no steps to obtain help for your victim afterwards. I accept that your level of culpability requires some reduction from the notional starting point I have identified. Your personal circumstances might also justify some reduction. In particular, you have only one relatively minor previous conviction for common assault in 2003. You have young children and responsibility for them, and prison will bear hardly on you and on them. None of those factors require a reduction below the minimum period of 17 years. I fix a minimum period for you of 17 years. That period is not manifestly unjust.
[22] Counsel for the Crown also seeks an order for the confiscation of your car. I may make that order if I am satisfied that the car was used to facilitate the commission of the offences. This requirement is met, in that the car was one of two
in which the group travelled to Featherston. However, that connection with the offending is not one which I consider justifies the making of an order. That would be an additional penalty for you which would lead to an unjustified distinction between you and your co-offenders. I decline to make that order.
[23] Matthew McKinney, your counsel submits that the jury verdict for you is most likely on the basis of secondary participation rather than on the basis that you actually caused the fatal injuries. I have reservations about that analysis, but I cannot, on the evidence, exclude that possibility. That means that some downwards adjustment to the notional starting point is required. Your personal circumstances as described in your pre-sentence report do not justify any deduction. You have
10 previous convictions, eight of which are for breaching court orders. There are no previous convictions for violence, and no uplift is justified. One factor which I consider does deserve some recognition is your plea of guilty at the start of the trial to the aggravated burglary count, and your acceptance of guilt for a culpable homicide. Consideration of all those factors could result in a potential minimum term slightly greater than 17 years. However, because it is not appropriate to make fine distinctions, I fix a minimum term for you also of 17 years. That period is not manifestly unjust.
[24] Kristofer Jones, your counsel too submits that the jury verdict is likely based on liability as a secondary participant. In your case, too, I have reservations about that analysis but I cannot exclude it as a possibility. I also accept your counsel’s submission that you were not one of those principally involved in planning to go and confront Mr Jones. Some downwards adjustment to the notional starting point is required to reflect those factors. There is nothing in your personal circumstances which justifies any reduction. You have 23 previous convictions and Youth Court notations. The most relevant for present purposes are notations for burglary, assault and wounding with intent to injure. These do not require an uplift. In your case, too, the need to avoid fine distinctions leads me to the view that a minimum period of
17 years is appropriate in your case also. That term is not manifestly unjust.
[25] Hayden Ranson, your counsel recognises that it is likely that all four who entered the flat will share equal culpability for events in the flat. That is a realistic
recognition, and your counsel responsibly accepts that this applies to you. He submits that you had a lesser role in the lead up to the attack. I accept that submission. You became involved with this group only on the day of the attack and did not know most of them. I take into account that you did not take with you to the flat the axe handle which was in the car you travelled in. I also take into account your plea of guilty to the aggravated burglary and your acceptance of liability for a culpable homicide. Balanced against those factors is your bad previous record, with a total of 62 previous convictions. These include two violence convictions. You have served a number of sentences of imprisonment. Weighing those factors, I have reached the view that in your case too a distinction should not be made between you and the other offenders, so that a 17 year minimum term is appropriate. Again, that is not manifestly unjust.
[26] I turn to the aggravated burglary charge. For the four of you convicted of murder, this does not increase the level of your culpability as I have taken this factor into account in fixing the minimum period of imprisonment on the murder count and the term which I fix will be imposed concurrently. But I must make the assessment.
[27] The circumstances are analogous to those described in R v Mako of forced entry to a dwelling house at night by a number of offenders seeking violence, where weapons are brandished.1 That is described as requiring a starting point of around
10 years, even if no serious injuries are inflicted. Here, serious injuries were inflicted, but these are properly taken into account in the murder charge. I treat the intended crime, for the purposes of the aggravated burglary charge, as a serious assault, not a homicide. I adopt a starting point of 10 years for those who participated to the extent of entering the premises. There are no factors requiring a reduction, and that is the sentence I will impose concurrently with the murder sentences.
[28] For you, Toni Miller, I must make a separate assessment of the appropriate starting point for you, having regard to your role in that offending.
1 R v Mako [2000] 2 NZLR 170 (CA).
[29] The charge of aggravated burglary encompasses the conduct involved in entering Mr Jones’ flat with intent to assault him, armed with the two weapons. You are culpable, along with the other four, for all of that conduct. They bear responsibility, under the murder charge, for the extent of the assault. You do not share that responsibility. But your level of culpability on the aggravated burglary charge is not significantly less than theirs. While you did not enter Mr Jones’ flat, you aided and encouraged the others to do so. You were one of those who initially promoted the idea of going to deal to Mr Jones. You had discussed it on several occasions over a period of some weeks. You were an instigator of the trip to Featherston that night. You knew that the group was armed with weapons. You drove to your and Matthew McKinney’s home where two of the weapons were collected. You drove the car in which three of your four co-offenders travelled to Featherston. You knew of their intention to commit a serious assault on Mr Jones. Your actions in aiding and encouraging the others were a major contributor to the offending.
[30] Your counsel submits that there are some aspects of your involvement which distinguish your degree of culpability from the others. The principal distinction between you and your four co-offenders is that you did not go up to the flat itself, but stayed on the road outside. That does reduce your level of culpability. On the other hand, I find from the evidence at trial that you were one of the main instigators of the plan to take retribution against Mr Jones. I do not accept your counsel’s submission that your role in the planning and premeditation of the attack was not established on the evidence. I accept that the attack went further than you probably contemplated, but you initiated the idea over a period of time. You were the one sober person among the five of you and you ought to have tried to dissuade the others so that these tragic events would not have occurred. I am satisfied that you did not do so, but actively encouraged and facilitated the plan to go to Featherston and assault Mr Jones. I do not accept the submission that you were not aware that the weapons were taken. On the evidence, I am satisfied that you were aware that weapons were being taken. That is inherent in the jury’s verdict.
[31] Your counsel seeks to compare your position to that of two others who were not charged. One of those went with you to the roadside. The other drove the other
vehicle. But their situation is quite different from yours. They were not instigators of the offending as you were. Your culpability, as I have said, is more closely equated with that of your four co-offenders.
[32] In those circumstances, the reduction from the notional starting point to reflect your culpability in the offending must be limited. I fix a starting point for you for that offending of nine years.
[33] I must take into account personal factors, both aggravating and mitigating. There are no aggravating factors. A mitigating factor is that you have no previous convictions. You have been identified as being motivated to change, and as willing to participate in intervention to address the factors which have contributed to your offending. Your likelihood of reoffending is assessed as low to medium. You are described as failing to accept your guilt, though you accept a measure of personal responsibility for allowing your co-offenders to commit the murder. I consider that a discount to reflect your previous good record is justified. Also, you have two young children. Prison will bear hardly on you, and on them. I give some recognition to that, but that cannot be high. I allow a discount to reflect these factors of one year. That leads to an end sentence of eight years.
[34] I now come to impose these sentences on each of you.
[35] Tariana Jones, on the count of murder, you are sentenced to imprisonment for life. You must serve a minimum period of 17 years. On the count of aggravated burglary, you are sentenced to a concurrent term of 10 years imprisonment.
[36] Matthew McKinney, on the count of murder, you are sentenced to imprisonment for life. You must serve a minimum period of 17 years. On the count of aggravated burglary, you are sentenced to a concurrent term of 10 years imprisonment.
[37] Kristofer Jones, on the count of murder, you are sentenced to imprisonment for life. You must serve a minimum period of 17 years. On the count of aggravated burglary, you are sentenced to a concurrent term of 10 years imprisonment.
[38] Hayden Ranson, on the count of murder, you are sentenced to imprisonment for life. You must serve a minimum period of 17 years. On the count of aggravated burglary, you are sentenced to a concurrent term of 10 years imprisonment.
[39] Toni Miller, on the count of aggravated burglary, you are sentenced to eight years imprisonment.
[40] There will be an order for destruction of the two axe handles and the bat as the Crown seeks.
[41] That is all. You may stand down.
“A D MacKenzie J”
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