R v Jury
[2020] NZHC 2618
•2 October 2020
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2019-063-471
[2020] NZHC 2618
THE QUEEN v
RAYMOND IVEAGH JURY
Hearing: 2 October 2020 Appearances:
M S Jenkins for Crown
W T Nabney for Defendant
Sentence:
2 October 2020
SENTENCE OF PAUL DAVISON J
Solicitors:
Crown Solicitor, Rotorua
R v JURY [2020] NZHC 2618 [2 October 2020]
Introduction
[1] Raymond Jury, at 58 years of age, you appear today for sentencing having been found guilty of murdering Trevor Rikihana on 30 January 2019.
[2] In sentencing you, I will first summarise the background and circumstances of your offending before turning to address your personal circumstances. I will then refer to the purposes and principles of sentencing and explain the approach I am required to take in sentencing you for the offence of murder. I will then summarise the submissions made by the Crown and your counsel as regards the sentence they submit should be imposed. Finally, I will outline the sentence I will impose. As part of this, I shall determine whether it would be manifestly unjust to impose a sentence of life imprisonment with a minimum period of imprisonment of at least 17 years without parole.
Facts of the offending
[3] In the early hours of that morning you drove to a semi-rural address on Te Ngae Road in Rotorua where Mr Rikihana was living with his niece, Ms Lauren Eketone and her seven year old son. Mr Rikihana was 69 years old in January 2019. He was a man of slight stature, being 168 centimetres tall and weighing 49 kilograms.
[4] You and Mr Rikihana were both longstanding members of the Mongrel Mob gang and you and he knew each other well. You had stayed overnight at his place previously and no doubt regarded each other as friends, as well as fellow members of the Mongrel Mob. Upon your arrival Mr Rikihana, who was in his sleepout at the rear of the house, got up and the two of you went to the kitchen inside the main house to have something to eat and to talk.
[5] However, before long an argument developed between you which could be overheard by Ms Eketone. The argument was over money and repayment of a debt. The two of you then moved outside where you then attacked Mr Rikihana in what was a sustained and ferocious assault. The brutal and sustained nature of this assault is evident from the extent of the injuries you inflicted on Mr Rikihana and from which he died. Although the assault was not witnessed, it appears that it involved you using
a hammer to strike Mr Rikihana’s head and when Mr Rikihana was on the ground you then kicked and stomped on him repeatedly, stomping on his head. Ms Eketone, who was hiding nearby, could hear this taking place although she did not see it.
[6] Having rendered Mr Rikihana unable to resist you further, you then dragged him out to your car and put him in it across the back seat. You then drove to the nearby address of another Mongrel Mob member, Mr Rex Maney, where you asked him for some rope. Mr Rex Maney, who has since died, said in a letter that he wrote that he heard Mr Rikihana pleading with you saying “No more Mongrel” as you were giving him “heaps of kickings”. At that time Mr Rikihana was tied up in the back of your car. You then then drove to the Rotorua address of Mr Nicholas Te Aonui who is another Mongrel Mob member, and dumped the then unconscious Mr Rikihana in the driveway of that address. Mr Te Aonui was woken by sounds outside his house and when he went out to see what was happening he found Mr Rikihana lying apparently lifeless on his driveway. He took him from the driveway and then got him into his car and drove to the Rotorua Hospital where it was soon determined that Mr Rikihana was dead. You, having dumped Mr Rikihana’s body at Mr Te Aonui’s driveway, then drove back to Mr Rikihana’s address in Te Ngae Road and after a brief visit there, you drove away via Taupo across to Napier where you stayed with your daughter. The car you were driving subsequently found by Police abandoned and burned out thereby destroying anything of evidential value in it that would link you to Mr Rikihana and the circumstances of his killing.
[7] The nature and extent of your ferocious assault on Mr Rikihana is evident from the number and type of injuries you inflicted. The pathologist who conducted the post-mortem determined that he had suffered 79 identifiable injuries, including 23 injuries to his head and face and 18 injuries to his neck. The cause of death was found to be due to the combined effects of blunt force head injuries and neck compression. Examination of enzymes in his brain, enabled the pathologist to determine that Mr Rikihana had survived for at least 35 minutes after receiving the fatal brain injuries.
[8] The use of a weapon in the attack, such as the hammer found at the scene by Police, is evident from a 40mm laceration to the victim’s head with underlying scalp and skull injury consistent with a high energy impact having been inflicted to his head.
Mr Rikihana’s blood was detected on the handle of the hammer that was found at the scene. Mr Rikihana also suffered deep bruising to his neck with a carpet burn type of injury across the front of his neck, with a fracture of the cartilage of the thyroid bones and bruising around the hyoid bone consistent with something being placed around his neck and pressure applied such as garrotting. The pathologist said that these injuries were consistent with Mr Rikihana being garrotted by the use of a fabric item having been tightened around his neck. A towel with Mr Rikihana’a blood on it was found at the scene of the attack and was likely to be the item used to apply pressure around his neck. These injuries were themselves sufficient to cause Mr Rikihana’s death.
[9] Other injuries to his wrists were consistent with Mr Rikiahana’s hands and wrists being bound at some stage.
[10] Although, as I have said, there was no eye witness to the attack, Ms Eketone, who had fled the house with her young son with her when the attack was underway, because she feared for herself and her son, heard the sounds of the assault taking place. She said that she could hear Mr Rikihana being kicked and she heard him screaming and pleading for his life.
[11] From that evidence it is abundantly clear that this was an extremely violent and sustained attack causing multiple and serious injuries to Mr Rikihana. The attack was sustained and Mr Rikihana’s pleas to you to spare his life were ignored. Instead, you subjected him to what was a lengthy ordeal during which he was repeatedly kicked, struck, and stomped on, bound and chocked. He was dragged from the initial scene of the attack into your car, and then taken in the car and eventually dumped close to death, or dead, on the driveway of the Rotorua address of Mr Te Aonui.
[12] This attack involved, as I have said, the use of extreme and sustained violence and brutality. It was carried out in a cruel and heartless fashion and with Mr Rikihana’s desperate pleas for his life being spared being totally ignored. He was a vulnerable much older man and smaller man than you who was completely unable to defend himself against your superior physical size and strength.
[13] In his submissions on your behalf Mr Nabney has accepted the evidence of the forensic pathologist Dr Tse which detailed the extensive number of injuries sustained by Mr Rikihana as being both consistent with a weapon being used to inflict some of the injuries, and there being a significant injury across the front of Mr Rikihana’s neck consistent with him being garrotted. Mr Nabney also accepts that Mr Rikihana was significantly smaller in stature than you and that he was unable to defend himself once on the ground and later tied up in the back of your car.
[14] This murderous attack involved a high level of brutality, cruelty, depravity and callousness. That is acknowledged and accepted on your behalf by your counsel Mr Nabney, and so there is no dispute that the circumstances and features of your offending satisfy the criteria in s 104(1)(e) and 104(1)(g) of the Sentencing Act 2002, which require the Court to impose a minimum period of imprisonment of 17 years or more, unless I find that it would be manifestly unjust to do so.
Victim impact statements
[15] I have read the victim impact statement that has been read aloud in Court this morning by Ms Oriwa Rikihana-Crook. So have you, and you will have heard the effect of her brother’s death upon her and her family. She frankly acknowledged that he was no angel, but despite that he was loved by the family and that he is missed and she made the point that, whilst you might have called him your brother, it is his family who are his whānau and it is they who miss him immensely. She bravely described your conduct as cowardice and says that her whānau will continue to love one another and support each other and help each other get through the difficulties that they are now confronting.
Mr Jury’s personal circumstances
Provision of Advice to Courts (PAC) report
[16] I have of course read the Pre-Sentence report prepared by the Department of Corrections largely on the basis of your file and on the basis of your interview with the report writer on 20 August 2020. When interviewed I note that you declined to speak about the offending and said that you denied all of it.
[17] The pre-sentence report notes that you were also reluctant to talk at length about your childhood and your upbringing but you did explain that you are the thirteenth of 20 siblings and that you are disconnected with other members of your immediate and extended family apart from several of them who are members of the Mongrel Mob. You say that you grew up among gang members, and were exposed to the gang lifestyle from a young age. Indeed, you have described the Mongrel Mob as your “whānau, hapu and iwi” and have said that you would always choose the Mob lifestyle. In relation to your attitudes, the author of the pre-sentence report observes that you show little insight into your offending and propensities; you have described your emotional and mental health as “psychological trauma” yet refused to take the opportunity of engaging in psychological intervention at prison, and that you deny having any issues with substance abuse and have not expressed any remorse for the suffering you have inflicted on others, namely the Rikihana family.
Criminal history
[18] Mr Jury, you have a criminal offending history which discloses 21 convictions for violent offending. These include one conviction for assault on a child, one conviction for rape, five convictions for assault on a female, one conviction for assaulting a female with intent to rape, three convictions for abducting a female for sex, one conviction for attempting to rape a girl under the age of 16 years, and one conviction for indecent assault, together with four convictions for assaults on Police.
[19] Your conviction for assault on a child was for your assault on your 13 year old daughter in 2011. The Judge who sentenced you for that offence on 14 October 2011, noted that upon learning that your daughter had made the symbol or sign of another gang, you were provoked to choke her, and punched her head and body and, when she fell to the ground, you stomped on her throat with your bare feet.1
[20]You have served 12 sentences of imprisonment between 1978 – 2014.
1 Police v Jury DC Whakatane CRI-2011-041-001826, 14 October 2011.
Pre-sentence cultural report
[21] I have had the benefit of reading the comprehensive cultural report, dated 25 September 2020, prepared by Vanessa Moodie and submitted to the Court under s 27 of the Sentencing Act 2002. Ms Moodie’s report was detailed and thoughtful and well informed but it was primarily and necessarily based upon information she obtained from her three interviews with you. She also spoke with your daughter Ataahua and with Ms Lillian Shorter, who has known your family since 1982. Ms Shorter previously worked as a programme developer at the Mauri Ora Health Centre and worked with you and members of your family during a period when five other members of your whānau were in prison on remand or serving sentences.
[22] She knows your family background well through that association. In her report Ms Moodie identifies six features of your life and background which she says have led to you becoming marginalised and without the ability to participate in normal life. The six features are: family violence; family dysfunction; detachment from your culture, identity and Te Ao Maori; sexual violence; early gang association; grief and loss.
[23]Ms Moodie comments in her report:
The combination and culmination of factors, including poverty, extreme physical, emotional and sexual abuse, loss of family members, and a prison sentence that spanned most of his twenties, have left Raymond marginalised and without the ability to participate in normal life.
Raymond’s parents let him down at every turn. His father broke him physically and emotionally and his mother was completely inept at loving or caring for him. The significant trauma that Raymond carries is inter- generational, and, this trauma has resulted in Raymond having less ability to make rational choices, and therefore more susceptible to pro-criminal behaviour.
Raymond is a man who, at fifty-eight years of age, has had a life so deprived that it is almost beyond comprehension. From when he was ‘knee high to a mongrel’ his path was fixed and he has never deviated from his loyalty to the Mongrel Mob.
[24] More specifically, Ms Moodie records that you were viciously beaten by your father, from a young age until you left home at 14. You describe being “brought up with the cold bath syndrome”, by which you meant that you were routinely put into a
cold bath after your father had beaten you, to aid your swelling to go down. Ms Shorter corroborates this account. She describes your whanau as “very, very violent”, observing that “[you] got the worst of it” and how “[your] mother would fill a bath for you with ice”. You were also affected by the level of violence that your father directed towards your mother.
[25] Ms Moodie also records that you experienced sustained sexual abuse during your teenage years while at Epuni Boys’ Home during your first sentence, served at Borstal.
[26] You experienced additional trauma in the loss of four of your brothers. Two of your brothers were killed in a car accident when you were 15 years old. Then at age 18, your brother Brian hung himself in his cell at Paremoremo Prison. You were escorted from Napier Hill Prison to attend his tangi, during which Police arrested another one of your brothers, Luke. Luke hung himself the next day in his cell at Wairoa Police Station.
[27] Ms Moodie aptly concludes, “Raymond’s story is a very sad reflection of the disadvantage, depravity and disparity that exists in the communities of Aotearoa. It also highlights the systems that exist and the way these systems have contributed to, and maintained, unfair outcomes for Maori over time.”
Purposes and principles of sentencing
[28] In fixing your sentence, I must have regard to the relevant purposes and principles of sentencing. Mr Jury, the purposes for which I sentence you today are to hold you accountable for the harm you have caused by your offending, to promote in you a sense of responsibility for that harm, to denounce and deter your conduct, and to protect the community from you.2
[29] In sentencing you, I must bear in mind the general desirability of consistency with sentencing levels in similar cases and the need to take into account the gravity of the offending in this particular case, including the degree of your culpability and the
2 Sentencing Act 2002, ss7(1)(a),(b),(e), (f) and (g).
general desire for consistency with sentences imposed on offenders committing the offence of murder in similar circumstances.3 I must also take into account any circumstances personal to you that would mean a sentence that is otherwise appropriate would be disproportionately severe for you in your case.4
[30] While murder is necessarily offending of a very serious kind, I have to bear in mind that I should not impose a sentence upon you that is crushing, and that as far as possible within the limited discretion I have, the Court is required to impose a sentence that will assist in your rehabilitation and eventual re-integration into society.
Approach to sentencing in relation to murder
[31] Mr Jury, the law provides that a person convicted of murder must be sentenced to life imprisonment unless it would be manifestly unjust to do so.5 The presumption of a sentence of life imprisonment for murder recognises the sanctity accorded to human life in our society, and our community’s abhorrence of the crime of murder.6
[32] Realistically, your counsel, Mr Nabney, does not suggest that a sentence of life imprisonment would be manifestly unjust in this case. Indeed, this is not one of the exceptional type of cases where it would be manifestly unjust to impose the life sentence presumed for murder offending. Therefore, I am obliged to impose on you a sentence of life imprisonment.
[33] A sentence of life imprisonment means that you must remain in prison throughout the remainder of your life, unless and until the Parole Board releases you into the community on parole. If you are granted parole and released into the community, you may only remain in the community so long as you comply with your parole conditions and do not re-offend. A sentence of life imprisonment means that you will always remain liable to be recalled to prison to complete your sentence.
3 Section 8(a) and (e).
4 Section 8(h).
5 Sentencing Act 2002, s 102.
6 R v Williams [2005] 2 NZLR 506 (CA) at [57].
[34] I must also decide what the minimum period of imprisonment should be. This is the minimum term you must serve before you become eligible to apply for parole.7 Ordinarily, the minimum term of imprisonment for murder must be not less than 10 years. But if the Court is satisfied that the specified circumstances of the murder are exceptional by reference to what Parliament has classified as the most serious kinds of murder, then I must impose a minimum non-parole period of 17 years or more, unless it would be manifestly unjust to do so.8 The specified circumstances which require a murder to be treated as being more serious and requiring the imposition of a 17 year non-parole period as a minimum are set out in s 104 of the Sentencing Act.
Submissions
For the Crown
[35] The Crown submit that in terms of s 9(1) of the Sentencing Act, your offending was characterised by the following aggravating factors:
(a)Extreme violence. Dr Tse’s evidence illustrating that this was a brutal and sustained attack involving some 79 identifiable injuries.
(b)Use of a weapon. Dr Tse’s evidence is consistent with you having struck the deceased to the head with a hammer at least once, and having used a towel to garrott him, applying pressure on his neck which was itself fatal.
(c)Vulnerability of the deceased. The deceased was a person who was comparatively slight in stature, and a significant portion of the duration of the assault occurred when he was on the ground and at one stage with his hands tied.
The Crown says those are all aggravating features of your offending.
7 Sentencing Act 2002, s 103.
8 Sentencing Act 2002, s 104.
[36] The Crown submits there are no mitigating features of your offending that it is aware of.
[37] The Crown submits that pursuant to ss 102 and 103 of the Sentencing Act, this Court must impose a sentence of life imprisonment, with an MPI of at least 10 years. It submits that there are no features which would render a sentence of life imprisonment manifestly unjust in this case.
[38] The Crown further submits that the MPI should be at least 17 years, pursuant to s 104(1)(e) and (g), because the murder was committed with a high level of brutality and callousness and the deceased was particularly vulnerable.
[39] In relation to the brutality of the murder, the Crown accepts that all murders involve a degree of brutality, cruelty, depravity, or callousness, but it cites the Court of Appeal definition of brutality in this context as “savage violence” and the definition of callousness as being an “insensitive and cruel disregard for others”.9 To satisfy s 104(1)(e), the level of brutality must be high, and as such the provision is only engaged in extreme or exceptional cases.
[40]The Crown has highlighted the following authorities:
(a)R v Findlay [2017] NZHC 2551. Dunningham J accepted that s 104(1)(e) was engaged in this murder because the defendant had inflicted 12 full thickness scalp injuries to the deceased, predominantly while the deceased was already on the ground, with such severity that the pathologist described the scalp as suffering from “severe deformation”.10 However, Dunningham J found that it would be manifestly unjust to impose an MPI of 17 years’ imprisonment due to the defendant’s expression of remorse, guilty plea, lifelong mental and physical consequences that the defendant would suffer as a result of attempting suicide after the murder, and the level of provocation
9 R v Gottermeyer [2014] NZCA 205 at [78].
10 At [35].
involved.11 That case, apart from the level of injuries, was quite different from yours.
(b)R v Carroll [2017] NZHC 2691. Justice Davidson found that s 104(1)(e) was engaged in that murder because of the “ruthless way this murder was carried out, in a brutal and unpitying assault, the reason for it, and [the defendant’s] conduct and attitude towards [the victim’s] death afterwards.”12 The defendant had struck the deceased with a wheel lock, inflicting up to six serious wounds to the back of his head. He had then displayed callous disregard for the taking of the deceased’s life in setting fire to the deceased and making comments to other prisoners that the deceased had got what he deserved.13 The Judge’s imposition of a 17 year MPI was upheld on appeal.14
(c)R v Puna [2018] NZHC 79. Justice Cull found that s 104(1)(e) and (g) were engaged in this murder because of the defendant’s repeated application of extreme violence to the victim over a prolonged period (40 – 60 minutes) while the victim lay on the ground unable to defend himself and because the defendant told members of the public the victim did not need assistance, then leaving the victim alone and unconscious.15 However, because of the defendant’s age (20), remorse, cooperation with Police and prospects of rehabilitation, the Judge found, by a narrow margin, that it would be manifestly unjust to impose an MPI of 17 years.16
(d)R v Marinovich [2020] NZHC 1160. Justice Walker found that the murder was such as engaged s 104(1)(e) because the defendant’s offending was “a frenzied attack over a sustained period, involving both strangulation and violent hammer blows to [the victim’s] head”.17 The
11 At [50].
12 At [74].
13 At [79] – [80].
14 Carroll v R [2018] NZCA 320.
15 At [38].
16 At [51].
17 At [35].
Judge found that the offending also engaged s 104(1)(g), regarding a vulnerable victim, because the victim was frail, being some 59 years old and having been discharged from hospital just one day before the assault, and because that victim was trusting of and entirely dependent on the defendant.18 However, Walker J found that the imposition of a 17 year MPI would be manifestly unjust due to the defendant’s age, his remorse, his otherwise clean criminal record, and because the attack was not premeditated.19 He also suffered from a mental condition which the Judge placed weight on.
[41] The Crown here submits that the aggravating features of your offending in terms of s 9(1) of the Sentencing Act demonstrate that both subsections (e) and (g) of s 104(1)(e) are engaged. The Crown submits therefore that an MPI of 17 years would be appropriate, with higher MPIs being reserved for cases where several s 104 factors are engaged.
[42] The Crown submits that the statutory minimum, 17 years, should not be departed from, because this case does not fall outside the scope of the legislative policy that murders with specified features are sufficiently serious as to justify at least that term. It observes that a finding of manifest injustice must be made on the basis of clearly demonstrable factors which withstand objective scrutiny. The Crown submits that there are no such factors here. The Crown is not aware of factors personal to you which mitigate your offending. It notes that you continue to deny your offending, display no remorse or insight and intend to stay entrenched in the gang lifestyle insofar as that remains possible. The Crown rejects any suggestion that there was an element of provocation to the offending; if the deceased did strike you with a hammer, the Crown says that this would have been in a defensive context, rather than a provocative action, and the Crown notes that Ms Eketone testified that it appeared that you had initiated the assault. Further, the Crown submits that the factors outlined in the s 27 cultural report do not shift the s 104 presumption of the imposition of a 17 year MPI,
18 At [36].
19 At [37] – [51].
and the Crown relies on and refers me to the observations of Dunningham J in R v Tihema:20
[57] “Manifestly unjust” means more than just a severe or a harsh sentence. While your personal history of deprivation and abuse, and the resultant diagnosis of PTSD and depressive disorder would usually warrant a material discount to the starting point for the minimum period of imprisonment, as well as a modest discount for a combination of remorse and rehabilitative potential, I still cannot get to the point where I can say it would be manifestly unjust to impose a 17 year minimum period of imprisonment.
[58] In reaching that conclusion, I note the statutory minimum should not be departed from lightly, and the purposes of holding you accountable for the harm done, denouncing and deterring your conduct, point towards the statutory minimum period of imprisonment applying. So, as I have said, I cannot reach the conclusion that a MPI of 17 years would be manifestly unjust.
For the defence
[43] On your behalf, Mr Nabney accepts that the presumption in favour of life imprisonment applies, as I have said, as there is nothing in the circumstances that would render a sentence of life imprisonment manifestly unjust.
[44] And as I have already noted, he also accepts on your behalf that this murder involved a high level of brutality and that the deceased was vulnerable, engaging the s 104(1) thresholds and the presumptive provisions of an MPI of 17 years. However, Mr Nabney submits that it would be manifestly unjust to impose that minimum period of imprisonment of 17 years upon you, relying on two factors. The proposition that you acted under provocation and that it was Mr Rikihana who had provoked you by striking you with a hammer or striking you in some other way. And due to your upbringing as is detailed in the s 27 cultural report.
[45] In relation to the submission that you were provoked, he submits that there is sufficient evidence for this Court to be satisfied that you were struck once in the face by the deceased with a hammer. In support he refers to your evidence given at your trial that Mr Rikihana hit you in the face with a hammer, and he refers to you going to the Hawke’s Bay Hospital the day after Mr Rikihana’s death when you received treatment for a facial injury.
20 R v Tihema [2020] NZCA 2135.
[46] In relation to the submission that there is an inferential nexus between your upbringing and the traumatic events of your childhood and youth and that your offending should be the subject of a discount by reason of those factors, Mr Nabney submits that the report makes it clear that as one of 22 children, not the 20 mentioned in the pre-sentence report, in a dysfunctional family under a violent father your life was affected in a way where you were traumatised and that traumatic experience is inextricably linked to your development into a person who is yourself violent and led to you having that reaction where you inflicted the injuries that you did upon the deceased. Mr Nabney accepts that limited credit can be given to the report, given your continued denial of responsibility for the murder, however he submits that this Court should have regard to what the report writer described as your “… ability to disassociate from [your] physical being”. Mr Nabney submits that this may be considered an operative factor in the manner in which you committed this murder and he refers me to the observations of the Court of Appeal in Carr v R, a case albeit not in the context of offending engaging s 104 of the Sentencing Act. In that case the Court of Appeal said:21
We consider that this means that where a cultural report provided under s 27 of the Sentencing Act contains a credible account of social and cultural dislocation, poverty, alcohol and drug abuse including by whānau members, unemployment, educational underachievement and violence as features of the offender’s upbringing such matters ought to be taken into account in sentencing. The reference to Rakuraku embraces what Williams J referred to as the “magnifying effect” where young men gather in the “brutalised and traumatised company” of other young Māori men in gangs.22
[47] Mr Nabney submits that you are the “archetypal” person who has grown up in a brutalised and traumatised situation and context, and he submits that this Court should reduce the MPI that would otherwise by imposed of 17 years, by 20 per cent to reflect your background and where you have come from.
The appropriate sentence for this offence
[48] As I have noted it is clear that s 104 of the Sentencing Act is engaged here in two respects. Section 104(1)(e) of the Act requires that “if the murder was committed with a high level of brutality, cruelty, depravity, or callousness”, the minimum term of
21 Carr v R [2020] NZCA 357 at [60].
22 R v Rakuraku [2014] NZHC 3270 at [56] – [58].
imprisonment for murder must be at least 17 years unless the court is satisfied that it would be “manifestly unjust”. Section 104(1)(g) of the Act requires the same where “the deceased was particularly vulnerable because of his or her age”.
[49] You have accepted through your counsel that this was the murder of a vulnerable person and a murder involving a high level of brutality. This means that two of the s104(1) criteria are present. Mr Rikihana was 69 years old at the time of the attack, and he was small in stature by comparison with you - considerably smaller. Having fallen to the ground with his hands bound, he was unable to defend himself from your assaults. And as I have already detailed, he sustained numerous injuries of significance, and fatal significance, to his head and other parts of his body, some of which were caused by blunt force trauma with the use of a weapon and by garrotting around the neck.
[50] The question then is whether it would be manifestly unjust to impose a life sentence with a minimum period of imprisonment of at least 17 years. This question will be informed by an assessment of the degree of culpability of the offending of your case compared to the offending in the standard range of murder cases. It is a discretionary assessment that requires me to consider whether your case falls outside the legislative policy that in general, the presence of one or more of the s 104(1) factors means that the murder is so sufficiently serious that it warrants at least a 17 year minimum period of imprisonment.23
[51] A minimum period of 17 years’ imprisonment, where otherwise appropriate, is not to be lightly departed from. The proper approach to this question was explained by the Court of Appeal in Williams. The Court of Appeal said:24
… that 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
23 Malik v R [2015] NZCA 597 at [32]; R v Williams [2005] 2 NZLR 506 (CA) at [67].
24 R v Williams at [67].
based on favourable subjective views of the case. The sentencing discretion of Judges is limited in that respect.
[52] I agree with the Crown that there should be no discount to reflect the possibility that the deceased struck you with a hammer during the course of the assault. While it is evident that you did suffer a facial injury in the course of attacking and subduing Mr Rikihana, there is no reliable evidence that he struck you with a hammer before you attacked him. Mr Rikihana was found to have injuries which were consistent with being defence injuries, and it appears that he must have endeavoured to defend himself initially at least. You receiving a blow to the face in the course of your struggle with Mr Rikihana is in my view the more likely explanation for your injury and I note that in an affidavit that you filed with this Court prior to your trial you stated that Mr Rikihana had not struck you.
[53] The remaining question therefore, is whether in the light of the inferential nexus between your upbringing and the extremely brutal, cruel and callous murder, it would be manifestly unjust to impose the 17 year MPI.
[54] Mr Jury, I am satisfied that the s 17 report does contain a credible account of your social and cultural dislocation, poverty, and of suffering significantly traumatic physical and sexual abuse as a child and young person. Ms Moodie explains in her report your initial reluctance to disclose information to her but says that you did so over the course of her two interviews with you. Ms Moodie says that the narrative she has set out in her report provides an insight into your brutal background commencing with you being born into an extremely dysfunctional family and has led to social, economic, and cultural disadvantage.
[55] The report contains a description of the cruel and grossly abusive treatment that you were subjected to as a child and within your family, and of physical and sexual abuse while an inmate of an institution to which you were sent. You fled from your family and took up an association with the gang became, as you have explained, you made it in effect your substitute family. And it appears, as Ms Moodie has said, that your loyalty to the gang “reaches [your] innermost being..”.
[56] While the Court recognises the damaging and enduring effects of your traumatic childhood and the appalling abuses you have suffered, as having a significant effect upon your life choices and your gang membership, there is however no close causal connection between that background and your offending. Your victim, Trevor Rikihana, was a friend and another member of your own gang and as such, in your terms at least, a member of your own family, your own whānau. As you attacked him he was pleading for his life and you pitilessly ignored him and continued to inflict fatal injuries upon him, before taking him from the scene and dumping his body in a driveway in Rotorua and leaving him there to die. You have not acknowledged responsibility for the murder and you do not appear to have shown any remorse.
[57] In these circumstances where your murder offending clearly falls well within the most serious category of murders as prescribed in s 104(1), your personal background, while justifying a sentence discount in the case of a usual sentencing, does not take your offending outside the scope of the legislative policy that murders with specified features are sufficiently serious to justify at least a 17 year minimum term of imprisonment. I consider that your offending falls well within the band of culpability of a qualifying murder as provided for in s 104(1)(e). That being the case I am required to impose a minimum period of imprisonment of at least 17 years.
[58] Mr Jury, for the murder of Trevor Akuira Rikihana on 30 January 2019, I sentence you to life imprisonment. You are to serve a minimum term of imprisonment of 17 years before being eligible to apply for parole.
[59]You may stand down.
Paul Davison J
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