R v Kelekolio
[2014] NZHC 1791
•31 July 2014
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
CRI-2012-209-000476 [2014] NZHC 1791
THE QUEEN
v
ALE BRONSON KELEKOLIO
Hearing: 31 July 2014
(Heard at Christchurch)
Appearances:
A R McRae for the Crown
J R Rapley for the DefendantJudgment:
31 July 2014
SENTENCING REMARKS OF PANCKHURST J
Introduction
[1] Sadly, at 17 and a half years of age, I must sentence you to in relation to offences of murder and unlawful sexual connection by digital penetration. Your victim, Sina Solomona, was only 22 years of age when she died. Like you, she resided in Ashburton. She was a mother of a young daughter and she was employed at a local meat processing plant. She was well known to you. Your father and her mother lived together in an extended family. You were a frequent visitor to that home. You lived nearby with your aunt and sister, but a few hundred metres away from Sina’s home.
The factual background
[2] On the relevant day Sina Solomona worked a late shift. She finished work at about 1.00 am on Saturday morning, 15 December 2012. She was driven to a
R v KELEKOLIO [2014] NZHC 1791 [31 July 2014]
friend’s house by a workmate. Later she contacted a family member and asked that person to pick her and another woman up from the address where they were. When the car arrived, you were a passenger in it. In the course of the journey there was conversation, as a result of which it became clear that Sina was about to return to a home where there was nobody present. Her extended family were elsewhere making preparations for a celebration which was to occur later that day.
[3] You were dropped home first, followed by Sina. She, therefore, found herself alone in that house. She sent a text to her partner; he responded. The last text message was one he sent at 2.26 am. She did not reply. Meanwhile, you had gone into your home and had been seen by both your aunt and your sister. You consumed a quantity of alcohol, but after 10 minutes or so you went out again. We now know that you returned to Sina’s house. The exact sequence of events is necessarily a matter of reconstruction from what you have told the police and from the silent evidence that has been unearthed as a result of the police investigation.
[4] It is plain that Sina was attacked with a knife. She was stabbed repeatedly with a pointed kitchen knife. Likely following that attack, her throat was cut with a serrated breadknife. The two knives came from a kitchen drawer in the house. The pointed knife was broken in the course of the attack. That attack occurred in the back porch area of the house. Sina’s body was later located there. Needless to say, there was extensive blood staining, including splatters on adjacent walls in the general vicinity.
[5] A forensic scientist readily concluded that these were consistent with impact blows to Sina’s body. Subsequently, a post-mortem was conducted. The pathologist found evidence of 14 stab wounds and a similar number of what he termed incised cuts to Sina’s body. Her throat was, of course, cut as well, but she also had some blunt force injuries and abrasions consistent with blows with something other than a knife.
[6] When located, it was evident that Sina’s underclothing had been disturbed.
There were also bloody finger marks in the area of her thighs and vagina. Swabs
were taken from her vagina and from her underwear and DNA material matching your profile was located on those swabs.
[7] Returning to the scene itself, at 2.42 am a 111 call was made. That call was made by your sister with whom you lived. Before then you had run back to your home. You told your aunt and your sister that you had just discovered Sina and that she had been attacked. With your sister you ran back to the address. Your sister made the phone call and then commenced CPR.
[8] Both of you remained at the scene until ambulance staff and the police arrived at about 2.50 am, only minutes after the call to the authorities. Sina was pronounced dead at the scene. You were noticed, and photographed, by police officers, in particular your bloodied hands and blood stains on your clothing.
[9] You were formally interviewed on Sunday 16 December. You told the police that you had found Sina wounded, but still alive. You said you detected a noise in the house, as if someone was in there. You were frightened and therefore ran back to your home to get help.
[10] You were re-interviewed a few days later on 19 December. As that interview proceeded a search warrant was being executed at your home address. On the house section beneath an abandoned motor vehicle two knives wrapped in your bloodied shirt were located. Needless to say, you were confronted with this in the course of the interview.
[11] This development prompted you to provide a different account. You then said that when you arrived at the scene the attacker was still present. You identified another local man from your community; obviously someone who was known to you. You said that he had threatened you at knifepoint and forced you to remove your shirt and wrap the knives in it. You claimed you had only escaped from his control and run home at a moment when he was distracted. Questioned as to why you had not revealed this earlier, why you had not told your sister, your aunt or the police, you claimed that you were frightened.
[12] Naturally enough, the police made enquiries. They concluded that the supposed attacker had an alibi. Forensic testing was undertaken; nothing turned up to implicate him.
Sentence indication/pleas of guilty
[13] In October of last year your then-counsel, on your instructions, requested a sentence indication. I provided that indication in the District Court at Ashburton on
13 October in the presence of your family and Sina’s family. I told you that the life sentence I will shortly impose was inevitable. The only contentious issue was the minimum period of imprisonment to be fixed; the period you would have to serve before the Parole Board would consider you for release from prison. I indicated that the starting point in fixing that minimum period would be 17 years, but that there would be some reduction from it to recognise a plea of guilty, should you enter one, and your age and immaturity. I could not be precise, because as I explained to you, so much would depend upon the expert reports to be provided and considered at your sentencing; and also the timing of your plea and any indications of remorse would be highly relevant.
[14] A few days later on 18 October in this room, in this Court, you entered pleas of guilty to the two charges. As Mr Rapley has noted, a month or two later you had a change of heart. An application was filed to withdraw the pleas which you had previously entered. This required evidence to be heard at a hearing, which did not occur until May. Subsequently, I gave a decision declining your application to withdraw your pleas, for reasons that I need not go into. I mention this dimension, however, because it in part explains the delay until now and it is also relevant to my evaluation of the weight to be given to your pleas of guilty.
Victim impact statements
[15] Bronson, I hope you have listened to the victim impact statements that were read by Mr McRae at the start of this hearing. It is obvious that your actions have had a profound effect upon Sina’s immediate and extended family. You leave a grieving mother, a grieving twin sister and a child without her natural mother. Their
loss is heightened by the fact that you were regarded essentially as a “brother” by the
extended family.
Personal factors
[16] You were born on 24 December 1996. Hence, on the relevant day you were
15 years of age – to be precise nine or 10 days short of your 16th birthday. Obviously, that is very young indeed to be involved in crimes of this enormity.
[17] As counsel have noted, I have the benefit of two psychological reports from an experienced psychologist, Mr Craig Prince. These contain a wealth of information concerning your background, your upbringing and your emotional and psychological functioning. Curiously, I do not have a pre-sentence report, that being the result of an administrative oversight, but nonetheless it is entirely appropriate to proceed with your sentencing because the psychological reports contain so much information about you. I shall return to some aspects of your background in a moment.
The relevant principles
[18] You have heard the submissions made by the lawyers this morning. There is no dispute as to the applicable principles, including that it is inevitable a sentence of life imprisonment must be imposed in this case. Nor do I detect any difference between counsel concerning the required approach in fixing a minimum period of imprisonment. The only point of difference is as to its duration.
[19] I can, therefore, refer to the principles I must apply quite briefly. Life imprisonment is the presumptive sentence. It means, as I mentioned a little earlier, that you will be detained for life or until such point as the Parole Board concludes that you no longer represent an undue risk to the community. Once you are released, you may be recalled to prison if your behaviour in the community warrants it.
[20] The minimum period that I must fix is at least 10 years. The period must be fixed to reflect the needs of accountability, denouncing what you have done, deterring you and others, and providing protection to the community. But as
Mr Rapley rightly acknowledged, another provision in our Sentencing Act 20021 requires me to fix a minimum period of 17 years in certain defined circumstances. Three of these are whether your crime involved a high level of brutality. Clearly, it did. The facts I have outlined speak for themselves.
[21] A second circumstance is whether there was unlawful entry into Sina’s home, and I again consider that there was. A third aggravating circumstance relevant to this question is whether the murder was committed in the course of another offence. I consider that to be the case as well. The only possible motivation I can see for what you did is a sexual one and unlawful sexual connection is a serious offence. That means, Bronson, that I must adopt a starting point of 17 years or even more as the minimum period, before I consider factors personal to you.
[22] Counsel have referred me to a number of other cases of murder. I have considered these, in particular two local decisions decided in 20102 and an Auckland sentencing in 2007,3 which seem to me to be of most relevance. In all of them a minimum period of 17 years was the required starting point or potentially more, but then adjustment was made on account of personal factors, in some instances age.
Minimum non-parole period
[23] And so it remains for me to determine the duration of the minimum period. I am well satisfied you qualify for 17 years as a minimum period. Indeed, were it not for the matters I am about to mention, it could have been fixed at an even higher figure than that.
[24] But I must also determine whether, on account of your age and the fact that you have entered pleas of guilty, it would be manifestly unjust to fix the term at 17 years or more. Age and immaturity are undoubtedly matters which I must seriously
consider. The Sentencing Act requires as much;4 indeed, the New Zealand Bill of
1 Sentencing Act 2002, s 104.
2 R v Lamont HC Greymouth CRI-2009-018-702, 16 December 2010 and R v Boyes-Warren HC Christchurch CRI-2008-009-19959, 10 March 2010.
3 R v Trevithick HC Auckland CRI-2007-244-9, 19 June 2007.
4 Sentencing Act 2002, s 9(2)(a).
Rights reinforces this by stating that children have the right to be dealt with in a manner that takes account of their age.5
[25] A leading Court of Appeal case provides guidance.6 It recognises at least three dimensions relevant to age and immaturity which require consideration. The first is that the brain development of young people is ongoing, often into early adulthood. As a result of immature brain development, adolescents may be impulsive, display immature judgement and lack insight and restraint; traits which are likely to be compounded by the use of alcohol and drugs. It is also recognised that persons of your age do have a greater capacity for rehabilitation, because of the maturing process.
[26] The third matter is that long sentences for young people can be crushing. They simply cannot cope with them, particularly a sentence which matches or even exceeds their present lifetime. And you, on account of your age, are certainly in that category. I have no doubt that these considerations are all relevant in your case. The psychological reports confirm as much. I will mention certain features from them.
[27] Firstly, you have no mental health history or impairment. But as Mr Rapley noted, you had a difficult upbringing. Your parents parted when you were seven years of age. For the main part you have been in the care of your father, although you were not at the time in December 2012. It is still evident, however, that you are beholden to his influence.
[28] You were expelled from school some time before these events. You were leading an anti-social lifestyle. You were involved in binge drinking. You had come to the notice of the police on a number of occasions, but you had been dealt with at family group conferences and the like. One positive, Bronson, is that you excelled at sport, particularly at rugby.
[29] Mr Prince also conducted psychological tests, in which I note you co-operated. He found that you do not have a formal intellectual disability as such,
5 New Zealand Bill of Rights Act 1990, s 25(i).
6 Churchward v R [2011] NZCA 531.
but you do have significant learning difficulties and I have no doubt you are a vulnerable adolescent, lacking in judgement, self-disciple and indeed the ability to think straight.
[30] The reports also confirm the existent of some quite disturbing evidence of a depressive state that set in when you were in a secure youth facility following your arrest for murder. You have made some progress since then, since you have been in a youth prison. I am in no doubt that your age, immaturity and development deficits require significant recognition.
[31] I turn to the guilty pleas. A guilty plea has two main consequences. It saves a victim’s family from the trauma of a trial and it saves the costs and inconvenience of a trial as well. Secondly, as I told you in Ashburton, pleas may be accepted as evidence of acceptance of responsibility. I am afraid that is no longer available in your case. You are now back in a state of denial, a product I suspect of the enormity of what you did. Nonetheless, you entered pleas of guilty about a month out from trial. That was late, but the pleas did save the need for a jury trial and I must give you some recognition for that.
[32] My overall assessment and impression is that a minimum period of 17 years would be manifestly unjust in your case. I consider that the appropriate minimum period is one of 14 years and six months’ imprisonment.
The sentence and related orders
[33] Would you stand up please? Ale Bronson Kelekolio, you are sentenced to life imprisonment for murder. In relation to the further crime of unlawful sexual connection, you are sentenced to four years’ imprisonment. I direct that you are to serve a minimum period of imprisonment of 14 and a half years before you will be considered for parole.
[34] You are now subject to the three strike legislation. I must therefore warn you that if you are convicted again of a serious violent offence, you will serve a sentence of imprisonment without parole or early release. Were you to be convicted of
murder, it is most likely you would be sentenced to life imprisonment without parole. That warning will be provided to you in writing so you will be able to digest it.
[35] The interim suppression order in relation to your name is hereby lifted. The suppression order which applies in relation to a decision I gave on 6 June is amended to prohibit publication until any appeal is resolved, or until further order of this Court or the Court of Appeal.
[36] [Mr McRae points out that the three strike legislation does not apply to offenders under 18 years of age]7 I have erred; I apologise. The warning does not apply and is withdrawn. There will be no need for the written notice.
Solicitors:
Gresson Dorman & Co, Timaru
J R Rapley, Barrister, Christchurch
7 Sentencing Act 2002, s86A, the definition of a stage-1 offence.