R v Kingi
[2016] NZHC 139
•11 February 2016
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2015-019-004475 [2016] NZHC 139
THE QUEEN
v
TUREI RAWIRI KINGI
Hearing: 11 February 2016 Appearances:
T Sutcliffe for the Defendant
R D Douch for the CrownJudgment:
11 February 2016
SENTENCING NOTES OF WYLIE J
[1] Mr Kingi, you appear for sentence today having entered a guilty plea to a charge of murder pursuant to ss 172 and 168 of the Crimes Act 1961. The maximum penalty for this offence is one of life imprisonment.
[2] A conviction was entered against you following your plea. That occurred on
1 September 2015. Two other more minor charges were then withdrawn.
[3] Your sentencing triggers s 86E of the Sentencing Act 2002. That section is
part of the “three strikes” regime introduced into the Sentencing Act as from 1 June
2010.
[4] The statutory three strikes regime applies because, on 11 April 2014, you were convicted and sentenced on a charge of robbery in the District Court at Palmerston North. You were given a first strike warning pursuant to s 86B of the
Act.
R v KINGI [2016] NZHC 139 [11 February 2016]
[5] Your conviction for murder is a stage 2 offence, with the consequence that s
86E of the Sentencing Act applies. That section requires that you must now be sentenced to life imprisonment without parole, unless it would be manifestly unjust to do so. If I find that it is manifestly unjust to impose on you a sentence of life imprisonment without parole, s 86E(4)(b) requires me to impose a sentence with a minimum non-parole period of at least 10 years in accordance with s 103 of the Sentencing Act. That section in turn requires me to take into account s 104 of the Act.
Relevant Facts
[6] You do not dispute the summary of facts.
[7] On Monday 10 August 2015 you had been consuming alcohol, cannabis and synthetic cannabis. In the evening you travelled to a liquor store on Peachgrove Road in Hamilton, where a one litre bottle of Jim Beam was purchased and given to you. You then returned to Victoria Street in the central city. You proceeded to walk around the CBD in the company of two female associates. As you were walking along Victoria Street, you were confrontational and aggressive to members of the public.
[8] By about 8.40pm, you had progressed to London Street. You parked your motor vehicle in that street. At this stage you saw the victim, a 71 year old male. He had parked his car outside a public toilet. The victim was not known to you. You said to your female associates that you were going to “gank” the victim. The term “gank” apparently means to rob.
[9] You and your two associates approached the victim while he was sitting in his vehicle. You asked him for money and food. He told you that he had no food. You walked away, but you were agitated at his response.
[10] The victim then got out of his car and went into the toilet. You also went into the toilet. The victim had gone into a cubicle and you started kicking the cubicle door while yelling abuse at the victim. When the victim opened the cubicle door a short time later, you demanded that he hand over his car keys. When he refused you
punched him in the face with a closed fist. This caused him to fall to the ground. You then took the Jim Beam bottle, which by this stage was half full, and, using an over-arm motion, struck the victim to the left side of his head. This blow caused the bottle to smash. Your actions left the victim unconscious on the ground. You then took his car keys. You went out of the toilet and got into the driver’s seat of the victim’s motor vehicle and started it. Your two associates also got into the motor vehicle. You then drove off heading in a northerly direction.
[11] A short time later one of your associates got out of the car and ran towards her residence. You initially tried to entice her back into the vehicle. You told her that you and your other associate were going to Auckland and asked her to come with you. She refused to accompany you any further. Rather she went inside and told her caregiver what had happened.
[12] The police were promptly informed about the assault and the theft of the motor vehicle. They started looking for the vehicle. They soon located it. You were by this stage driving the car in a northerly direction on State Highway 1 towards Auckland. A police patrol vehicle followed you between Taupiri and Huntly. Near the entrance to the Meremere Dragway, the police activated their red and blue flashing lights and siren, directing you to pull over. You did not do so. A short pursuit followed at speeds of up to 120 kilometres an hour. The vehicle you were driving was spiked by the police very shortly thereafter. You then slowed, but continued driving for approximately five minutes before pulling over at the foot of the Bombay Hills. You were then arrested and brought back to Hamilton.
[13] In the interim, the victim had been attended to by the St John Ambulance Service. When the ambulance officers got to the victim, they found him in the toilet cubicle. He was dead. He had a wound in the left side of his head and the label of the alcohol bottle was stuck to the side of his face. A post mortem determined that he had died as a direct result of blunt force trauma to his head. The injuries which he had sustained were not survivable.
[14] When you were spoken to by the police you admitted these various facts. In
explanation you said that you considered that the victim’s response when you asked
him for food and money was disrespectful to you. You admitted that you had become angry and stated that you had returned to the toilet block where you waited for the victim to finish using the toilet. You acknowledged punching the victim in the face and striking him with the bottle. You also stated that you acted with the intention of “ganking” or robbing the victim of his car keys, in order to take and then sell his car.
[15] It is noteworthy that the charge of murder was laid pursuant to ss 172 and 168 of the Crimes Act. It was the Crown’s case that you meant to cause grievous bodily harm for the purpose of facilitating a serious offence – namely robbery. The Crown did not therefore have to allege a specific or reckless intent as defined in s 167 of the Crimes Act.
Victim Impact Statements
[16] I have received victim impact statements from the deceased’s sisters. They have been read in Court this morning. The deceased’s sisters are both understandably distressed at the circumstances in which their brother died. The deceased was a kind and generous man. He was close to his various nieces and nephews, who are deeply traumatised by his death.
[17] One sister expressed the view that she would like to think that you can be rehabilitated, but she doubts whether that can occur. She seeks that the Court should impose a very long non-parole period.
[18] The other sister says that she feels for you. She is a Christian, and she states that she does not hold a grudge against or feel any anger towards you. She says that in her view people deserve another chance. It is noteworthy that she states that for you to potentially face a long term of imprisonment, at just 26 years of age, is a matter of concern.
[19] She also records her concern at the family’s dealings with the media. She says that the media hounded her family, and that they rang her on two or three occasions wanting a comment. She says that media representatives turned up at the deceased’s front door. This is a matter of concern to the Court. I do not know who
those media representatives were working for, but I trust that those media representatives present today will take note of the concerns which have been expressed and afford the victim’s sisters some privacy at the conclusion of this sentencing.
Provision of Advice to Court Report
[20] The report writer noted that you appear to have some insight into your offending. You accept that intoxication and difficulties with mental health were major offending related factors. You advised the report writer that you had been consuming alcohol and cannabis prior to the offending, and that you “couldn’t handle the buzz”. The report writer also noted that while you acknowledge that you have an issue with violence, you cannot explain what was behind your offending.
[21] There is a reference to records held by the Waikato District Health Board. They record that you have been diagnosed with a schizoaffective disorder, bipolar subtype, and that you have presented with catatonia and mania symptoms in recent times. They also note that your recent level of compliance with your prescriptions has been poor and that you have avoided taking medication.
[22] You are assessed as being at a medium risk of reoffending and of posing a high risk of harm to others.
[23] The recommended sentence is of course a sentence of imprisonment.
Submissions
[24] Mr Douch on behalf of the Crown filed comprehensive and helpful submissions. He also made available to me copies of various statutes, parliamentary materials, and the numerous cases referred to in the Crown’s submissions.
[25] In brief it is his submission that s 86E(2)(b) of the Sentencing Act applies, and that there is nothing in the circumstances of the offence or of you as the offender which would make life imprisonment without parole manifestly unjust. He noted that the words “manifestly unjust” are not defined in the Act, but submitted that the
threshold is likely to be reached only in exceptional cases. In making this submission he referred to the legislative history of the “three strikes” legislation, to the text of s 86E, and to an analogy which he submitted can be drawn with the use of the same words in ss 102 and 104 of the Act. He argued that the statutory presumption is that there should be a higher level of punishment, through the mechanism of life imprisonment without parole, for repeat violent offenders.
[26] Mr Douch took me carefully through the two cases decided under s 86E – namely R v Harrison1 and R v Turner.2 He noted that both are subject to appeal to the Court of Appeal, and that those appeals had not yet been heard. He submitted that there were various aggravating features to your offending, and observed that you are responsible for the death of an elderly man because of a gratuitous act of violence. He accepted that you pleaded guilty at the first available opportunity. He also acknowledged that you have a history of mental health problems, but observed
that at no time have you offered any potential psychotic motivation as an explanation for your offending. He submitted that there is no evidence suggesting a link between your mental illness and the offending, and argued that your mental illness cannot be said to be a mitigating factor.
[27] Mr Douch went on and pointed out that, if I conclude that it would be manifestly unjust to sentence you to life imprisonment without parole, then a minimum period of imprisonment needs to be fixed pursuant to s 103 of the Sentencing Act. He argued that s 104 is engaged, and that this should result in a minimum period of imprisonment of 17 years – perhaps tempered by making an allowance for various mitigating factors, in particular your guilty plea. In the event that I disagree and hold that a minimum period of imprisonment of 17 years – or perhaps a little less – would be manifestly unjust, then he argued that the minimum period of imprisonment should be 15 years.
[28] Mr Sutcliffe, on your behalf, submitted that when assessing whether or not a sentence of life imprisonment without parole would be manifestly unjust, I am
required to take account of ss 7 to 9 of the Sentencing Act, the circumstances of the
1 R v Harrison [2014] NZHC 2705.
2 R v Turner [2015] NZHC 189.
offending and, separately, your circumstances. He acknowledged that a number of the aggravating features set out in s 9 of the Act apply, but submitted that there are also mitigating factors – such as your guilty plea, the fact that you have expressed remorse, and your mental condition which he suggested diminishes your responsibility. He put it to me that you have a well documented history of mental illness and that you had not been taking your medication immediately prior to the offending. He pointed out that it is the opinion of the health assessors who have considered your case that your offending generally has coincided with the development of your serious psychiatric condition and that your offending has occurred during periods of instability in your mental state.
[29] Mr Sutcliffe referred me to various letters which have been made available to me from close family members, including your mother, your stepfather, your grandmother, your sister, your uncle and your ex-wife. He submitted that these give a clear and consistent description of you succumbing to the ravages of mental illness. He said that I should conclude that there is a clear link between your offending and your underlying mental illness, and find that you do not fall into the worst category of offender for whom there is scant hope of rehabilitation.
[30] Mr Sutcliffe submitted that it would be manifestly unjust to impose a sentence of life imprisonment without parole on you, and that instead I should consider what is the appropriate minimum period of imprisonment in accordance with ss 103 and 104. He conceded that this is a case where life imprisonment rather than a determinate sentence is appropriate. Further, he conceded that two of the s
104 factors are engaged and that the section is triggered. He took me through a number of cases and suggested that nevertheless a minimum period of imprisonment of 17 years would be inappropriate in your case. He argued that a minimum period of imprisonment in the vicinity of 12 years would be more appropriate.
Analysis
[31] As I have noted, there have been only two cases decided under s 86E of the Sentencing Act – R v Harrison and R v Turner. Both are subject to appeal. As I understand it, those appeals were initially due to be heard in October 2015. The
hearing of the appeals has been put back to May of this year. Clearly it would have been desirable if counsel and I had had the guidance of the Court of Appeal. Nevertheless, following discussions with counsel, I decided that it was in the best interests of all, and in particular the deceased’s family, for the sentencing to proceed today. I made that decision in the knowledge that a ruling from the Court of Appeal on the matters raised by s 86E will soon be available.
[32] I called for and have checked the Court file in relation to your first strike. As I have noted it records that on 11 April 2014 you were convicted of a robbery pursuant to s 234 of the Crimes Act. That is a serious violent offence as those words are defined in s 86A of the Sentencing Act. Judge Ross, who entered the conviction for that offence, signed a Notice of Consequences of First Warning, recording that he gave you a first warning, and recording the warning which was given to you. You were expressly warned that, if you were convicted of murder after receiving the warning, you would be sentenced to imprisonment for life. It went on to advise that you would serve the life sentence without parole, unless it would be manifestly unjust for you to do so. It noted that if you received a life sentence without parole, you would not be released from prison. It further noted that, if serving a sentence without parole was found to be manifestly unjust, a Judge would specify the minimum period of imprisonment you would serve.
[33] It is not disputed by Mr Sutcliffe that a first strike warning was given to you in these terms.
[34] Relevantly, s 86E(2)(b) provides that where an offender is convicted of murder, and the murder is a stage 2 or a stage 3 offence, the Court must sentence the offender to imprisonment for life for that murder, and order that the offender serve that sentence of imprisonment for life without parole, unless the Court is satisfied that, given the circumstances of the offence and offender, it would be manifestly unjust to do so. If the Court does not make an order under this subsection, it must give written reasons for not doing so. Further, if the Court does not make an order for life imprisonment without parole it must, if the murder is a stage 2 offence, order that the offender serve a minimum period of imprisonment in accordance with s 103 of the Act.
[35] The words “manifestly unjust” used in s 86E(2)(b) are not defined in the
Sentencing Act.
[36] In my judgment the word “manifestly” carries its ordinary meaning. It means clearly, obvious to the mind or eye, or demonstrably. In context, the use of the words manifestly unjust in s 86E denotes an injustice that is clear or obvious.
[37] The meaning of the words was considered in both the Harrison and Turner sentencing decisions. In Harrison Mallon J touched relatively briefly on the meaning of the words. She considered that the threshold for the exercise of the discretion conferred by the words has been set very high.3 In Turner, Woolford J analysed the meaning of the words in some detail, by reference to existing case law and the use of the same words in ss 102(l) and 104(l) of the Sentencing Act, and also by reference to the Sentencing and Parole Reform Act 2010 which introduced the three strikes regime. He referred to its legislative history, and concluded that
“manifestly unjust” should be a rare test. He considered that the intent of the legislation, as well as to be disproportionately punitive, was to target the worst types of murderers and violent offenders.4
[38] In my judgment, the following matters should inform a sentencing Court’s
application of s 86E:
(a) If the statutory consequence of life imprisonment without parole is to be avoided, any injustice must be patently clear. That is evident from the phrase “manifestly unjust”. It is reinforced by the requirement to give written reasons if a sentence of life imprisonment without parole is not imposed;
(b)Any conclusion of manifest injustice must be reached on the basis of both the circumstances of the offence and those of the offender. The
test is conjunctive.
3 R v Harrison, above n 1, at [28] and n 17.
4 R v Turner, above n 2, at [42]-[71].
(c) The manifestly unjust assessment must be undertaken in light of ss 7,
8 and 9 of the Sentencing Act. Those sections set out the purposes and principles of sentencing and they go to the heart of the sentencing process.
[39] I have considered the various materials made available to me and the submissions of counsel. In my judgment, it would be manifestly unjust to sentence you to life imprisonment without parole given the circumstances of your case. I have reached this conclusion by reference to the following:
(a) Your age and the likely consequences of a sentence of life imprisonment without parole for you;
(b)The circumstances of your offending – both the first strike offence and the murder;
(c) Your circumstances – in particular your mental health; (d) Your guilty plea;
(e) Your expressed remorse;
(f) Your prospects of rehabilitation;
(g) The purposes and principles of the Sentencing Act; and
(h) The views expressed by the victims.
[40] I have considered all of these matters in the round. I do not suggest that any one of them is of itself determinative. In my judgment, taken collectively, they compel the conclusion that a sentence of life imprisonment without parole would be manifestly unjust given your offending and given your circumstances. I now turn to consider each matter in turn.
[41] You are 26 years of age, having been born in May 1989. If you were to be sentenced to life imprisonment without parole, it is likely that you would serve a term of imprisonment of some 50 to 60 years. As I understand it, at birth the average life expectancy for European males is 79.5 years, and for Māori males, 73 years. One’s life expectancy rises as one gets older. A table and calculator available on the internet from Statistics New Zealand suggests that, at age 26, a person born in New Zealand in 1989 can expect to live to 90.5 years assuming a low death rate, 88.5 years assuming a medium death rate and 86.4 years assuming a high death rate. This table does not distinguish between European and Māori males. Another table specifically applicable to Māori males suggests that a 25 year old Māori male in
2012 – 2014 will live a further 49.3 years.
[42] It is of course impossible to say how long any particular individual will live. Assuming for present purposes that you enjoy average life expectancy, it is likely that you would serve a term of imprisonment of some 50 – 60 years before you die. That would be an extremely long term of imprisonment; insofar as I am aware it is well in excess of that served or being served by any other prisoner in New Zealand. It is considerably in excess of the sentences imposed for New Zealand’s worst murder cases involving, for example, psychopathic behaviours, multiple cold
blooded killings and behaviours indicating a total lack of remorse.5 Such cases,
considered prior to the introduction of the three strikes legislation, have attracted sentences of life imprisonment, with minimum periods of imprisonment of 20 to 30 years. Some offenders sentenced to life imprisonment have served very long sentences but not without the necessity of their incarceration being considered on an ongoing basis once they have served the minimum periods of imprisonment imposed on them. In your case a sentence of life imprisonment without parole would be to
throw away the key.
5 See e.g. R v Bell CA80/03, 7 August 2003; R v Frost [2008] NZCA 406 at [35]; R v Howse
[2003] 3 NZLR 767 (CA); See also R v McLaughlin [2013] NZHC 2625 at [31]-[32].
[43] I start with your first strike offence. The Crown has made available to me a summary of the facts in relation to the robbery for which you received the first strike warning. As the Crown concedes the robbery was not particularly serious. You were in Garden Place in Hamilton, together with the victim. You did not know the victim, but you approached him and offered him a cone of synthetic cannabis. The victim declined. He was on his cellphone at the time and you commented on his phone. You then punched him and knocked him to the ground. You demanded his phone. When he refused to hand it over you took his hat and sunglasses and made off. The police were called and you were located a short time later. The victim received a cut above his right eye but he did not require any medical attention. When you were spoken to by the police you admitted the facts, and you could offer no explanation for your actions.
[44] I consider that the relatively minor nature of your first strike offence is a relevant factor. I note the approach taken to this issue by Mallon J in R v Harrison.6
Under the legislation offending of a minor kind can trigger a sentence of life imprisonment without parole. If it was not for your first strike offending, you would be eligible to apply for parole after a set number of years. While that is the legislative consequence, the discretion retained by the Court permits it to consider whether that consequence is a proportionate response. In my judgment, in your case, life imprisonment without parole is not a proportionate response given the relatively minor nature of your first strike offence. The consequence would be manifestly unjust.
[45] I have also considered the offending which has brought you before the Court today. Your offending must of course be condemned, and in strong terms. It was gratuitous violence against an elderly man. Your offending involved actual and significant violence and the use of a weapon. That is an aggravating feature in terms of s 9(1)(a) of the Sentencing Act. The harm resulting from your offending – the death of the victim – is at the highest level – s 9(1)(d). The victim was vulnerable
because of his age and health. He was not a large man; he weighed only 48.6 kgs.
6 R v Harrison, above n 1.
He was in a frail physical condition. This must have been obvious to you – s 9(1)(g). There was a degree, albeit limited, of premeditation. You set out to “gank” or rob the victim – s 9(1)(i). You have a number of previous relevant convictions. There is the robbery which I have mentioned. Further you have a conviction for assault with intent to injure in April 2014, two convictions for possession of an offensive weapon in 2010 and 2012, a conviction for male assaults female in 2010, a conviction for common assault in 2009 and a conviction for fighting in a public place in 2008. Your previous criminal history is an aggravating factor in terms of s 9(1)(j).
[46] Nevertheless, I do not consider that the murder which you have committed was the worst type of murder. While there were the aggravating features I have mentioned, they were not in my judgment severely aggravating given the seriousness with which the offence of murder is always treated by the Courts. There is nothing to suggest significant premeditation by you. The victim was not identified as a potential victim until shortly before his death. The materials before me suggest that your assault on the victim was in large part impulsive. The violence, while significant, was not extreme. But for the fact that the assault which resulted in the victim’s death occurred in the course of a robbery, it may be that you would have been charged with manslaughter rather than murder.
[47] The materials before me suggest that you did not intend to kill the victim. There was a recording device in the victim’s motor vehicle. It continued operating after you left the scene in his car. You were recorded telling your associates that you had wasted the victim and smashed the whole bottle on him. You said that he would be there for ages, but that he would come to. You said that you had struck the blow to his jaw and not to his head, and that you did not want to kill him.
[48] This is consistent with statements you made to the various health assessors who interviewed you.
[49] In my judgment, your offending, tragic in its consequence, was not egregious, or anywhere near the worst types of murder with which the Courts regrettably must deal from time to time.
Your circumstances
[50] There are three reports from health assessors before the Court.
[51] The first report was prepared by a Dr Majeed, who is a consultant forensic psychiatrist. He saw you soon after the offending and again a few days later. He noted that you have a strong family history of mental illness and that you have an uncle and an aunt who have been diagnosed as suffering from schizophrenia or bipolar affective disorder, and that four of your aunt’s children have been diagnosed as suffering from mental illness. He observed that you have received psychiatric treatment over a number of years, and he noted that you have been diagnosed as suffering from schizoaffective disorder. He considered that you suffer from that disorder, but that you were in remission at the time he saw you, because you were then on anti-psychotic and mood stabilising medication. He noted that you present with an abnormal state of mind of an intermittent nature, characterised by disorder of mood, and that it is of such a degree that you pose a serious risk to the safety of others.
[52] There was a much fuller report from a Dr Peter Dean, who is also a consultant psychiatrist, and the Associate Clinical Director and Director of Area Mental Health Services for the Waikato District Health Board. Dr Dean considered your psychiatric history at some length. It appears when you were in the army, in
2009, you developed “hypo manic symptoms, low mood and angry behaviours”. By June 2009 you had developed persecutory delusions. You were initially put into military prison but were then referred to the Palmerston North Mental Health Crisis Treatment Team. You were then reported to have symptoms of auditory hallucinations and delusions, and were started on risperidone, an anti-psychotic medication. You were subsequently discharged from the army and referred to the Hauora Waikato Maori Mental Health Services Intervention Service. Sometime later you disengaged from mental health care, and discontinued your psychiatric medication. Shortly thereafter you presented to hospital services in Auckland and you were admitted to the Henry Rongomau Bennett Centre at Waikato Hospital. You were there declared to be subject to the provisions of the Mental Health (Compulsory
Assessment and Treatment) Act 1992, and you were diagnosed with schizoaffective disorder.
[53] You responded well to medication, but you absconded from the ward on a number of occasions, abused substances, and failed to take your medication. You went through periods of admission and then discharge in mid-2010, again in mid-
2011 and then later in December 2011. You were re-admitted to Mental Health Services in early 2012, and in February 2012 discharged with provision for a follow up by Community Health Services in Palmerston North. You were admitted to Palmerston North Hospital in May 2012 due to your deteriorating mental health. You were subsequently discharged in August, but soon stopped taking your medication and you were returned to Hamilton and re-admitted to psychiatric care some 14 days later. You absconded and following periods in Palmerston North Hospital and in Dannevirke Community Mental Health Services, you re-commenced anti-psychotic medication when you were serving a period of imprisonment in late
2012.
[54] Concerns were expressed by your probation officer over your mental health in mid-2013. You were then admitted to Palmerston North Mental Health Services and treated with lithium. You were discharged in May 2013, but re-admitted in August 2013, after a warrant was issued in that regard by a Family Court Judge. At that stage you were diagnosed as having a depressive episode of schizoaffective disorder. In January 2014 you were seen by the Prison Liaison Service at the Waikato District Health Board, and you were later transferred to Hawkes Bay Prison where you received follow up by Forensic Health Services. When you were released from prison you were referred to the Dannevirke Community Health Mental Services.
[55] Your next admission was to the Henry Rongomau Bennett Centre again in May 2015. You presented with depressive symptoms. You had stopped using your medication and you had missed your fortnightly injection appointments. You were discharged in May 2015, and you then absconded. You presented a few days later exhibiting disorganised behaviour and in a labile mood. You were transferred to Dannevirke Community Health Mental Services in May 2015 and in June 2015 you
were re-admitted to Palmerston North Hospital Psychiatric Unit. You were discharged in mid-June informally. You planned to move in with your girlfriend but within three days you were admitted, once again, to the Henry Rongomau Bennett Centre. You were discharged on 15 July 2015, but you were made subject to the provisions of the Mental Health (Compulsory Assessment and Treatment) Act. You were referred to the Assertive Community Treatment Team for follow up, and you remained under the care of that team until you were arrested in relation to the present offending.
[56] Dr Dean summarised your psychiatric history as one of erratic compliance with treatment, continued abuse of substances and in need of ongoing psychiatric management. He considered that you experience frequent manic and occasional depressive relapses of your schizoaffective disorder. He noted that you have had a consistent diagnosis of bipolar affective disorder or schizoaffective disorder, that you have been treated with various mood stabilising medications and long term injections, and that you have been prescribed with oral anti-psychotic medication. He noted that you have been poorly compliant with these prescriptions. He observed that you have required treatment on various occasions under the Mental Health (Compulsory Assessment and Treatment) Act and that you were subject to that Act at the time of your offending. He discussed your account of the offending and noted that you described yourself as becoming increasingly very angry and disoriented in your thinking at the time of the offence.
[57] Dr Dean reviewed your medical and offending histories, and observed that your offending appears to have coincided with the development of your psychiatric condition. He observed that your offending appears to have occurred during periods of instability in your mental state. He noted that at the time of the offending, you had just been discharged from psychiatric hospital, having had a period of instability of mood and behaviour. He noted that you required four admissions to hospital over a two month period and that at the last psychiatric review prior to your offending, you exhibited features of elevated and irritable mood, consistent with active affective symptoms. While he noted that your account of the events leading up to your arrest was not consistent with a psychotic drive caused by mental illness, he expressed the view that your behaviour was influenced by your mental state. He noted that you
have a history of irritability and disorganised and impulsive behaviour when unwell, and that you described racing thoughts and difficulty in thinking clearly. He observed that your plans appear to have been only partially formed and that they were ill considered.
[58] There was also a comprehensive assessment from a Dr Ian Goodwin, who is a consultant liaison and forensic psychiatrist. He also reviewed your psychiatric history, and noted that your records indicate that when you are unwell, you present as grandiose, irritable and at times paranoid. He also noted that the majority of your offending has occurred subsequent to the diagnosis of your serious mental illness. Like Dr Dean, he noted that, in explaining your offending, you did not offer any potentially psychotic motivations for your actions. In assessing the risk you pose, Dr Goodwin expressed the view that your offending has broadly coincided with the onset of your mental illness, and that it was not preceded by a long history of anti- sociality, or conduct disorder as a child. He considered that you clearly have a history of major mental illness, but no history of early maladjustment or personality disorder. He suggested that there is ample historical evidence that, when unwell and also when intoxicated, you can display considerable impulsivity. He considered that your serious mental illness is compatible with the concept of mental impairment, and that your current offending appears to have been largely impulsive and influenced by substance abuse.
[59] All three health professionals strongly recommended that you should continue to receive treatment for your mental illness, and that you would benefit from treatment for drug and alcohol abuse. Dr Goodwin strongly recommended that you should abstain from drugs of abuse for the rest of your life.
[60] I have also considered the letters from your close family members which were made available to me by Mr Sutcliffe. I agree with him that the letters give lay support for the view that you have gradually succumbed to the ravages of mental illness over the years, and in particular since you served in the army in 2009.
[61] On the evidence, there is a clear link between your offending and your underlying mental illness. While you had been abusing alcohol and cannabis on the
day of the offending, and while that of itself is no excuse for your actions, I nevertheless consider that you can claim a degree of diminished responsibility for the offending. I accept the view of the medical professionals that your offending was influenced by your mental state at the time.
Guilty plea
[62] I note your guilty plea and your general cooperation with the police. You accepted responsibility for the offending from the outset. Your guilty plea was entered promptly at the first available opportunity.
Remorse
[63] I note that you expressed remorse to each of the health assessors who interviewed you. You have written a brief letter to me saying that you are deeply sorry for your actions and that you are truly remorseful towards your victim and his family. There is nothing to suggest that the remorse you have expressed is not genuine.
Rehabilitative prospects
[64] It is clear that you have struggled to overcome your mental health problems, and that that struggle has been exacerbated by your ready resort to illicit substances. Nevertheless the reports made available to the Court suggest that there is hope for your rehabilitation.
[65] Since you have been in custody, your mental health has improved significantly, because you have been compliant with your medication regime and you have not been able to resort to substance abuse. The health professionals consider that your potential for future violent offending is dependent upon your compliance with medication and your abstinence from alcohol and illicit substances. They agree that the potential risk you pose can be reduced if your psychiatric illness is addressed and you abstain from such substances. Additional risk factors, such as your anti-
social attitudes, can be addressed with psychological intervention, which should assist you to identify and manage your dysfunctional cognitions.
[66] It is common ground that you should remain under the care of Regional Forensic Psychiatric Services while you are in prison, and that you should benefit from drug and alcohol treatment to promote abstinence and to assist you to avoid the use of illicit substances in the future. You do not fall into the worse category of offender for whom there is little or no hope of rehabilitation.
Purposes and principles of sentencing
[67] I have considered the purposes and principles of the Sentencing Act. In my view, there is nothing in s 7 of the Act which supports the conclusion that justice requires that you should be sentenced to life imprisonment without parole. Nor do s 8(a), (b) or (c) suggest that justice requires that you be sentenced to life imprisonment without parole. I am required pursuant to s 8(e) to take into account the general desirability of consistency with appropriate sentencing levels imposed on other offenders committing similar offences. As I have already observed, a sentence of imprisonment for life without parole would be far in excess of the sentences imposed on much more serious offenders. They were not subject to the three strikes regime but issues of proportionality remain. It is also noteworthy that s 8(g) requires me to impose the least restrictive outcome that is appropriate in the circumstances. Given s 86E, the least restrictive outcome appropriate where murder is the stage 2 or stage 3 offence, is life without parole, but not if that sentence would be manifestly unjust. If life without parole is manifestly unjust, then the least restrictive outcome is a sentence of life imprisonment with parole. That is the case here.
Views of victims
[68] Finally, I have considered the views expressed by the victims in their victim impact statements. Neither suggests that you should be imprisoned without parole. One seeks a long or very long non-parole period. The other considers that you deserve another chance, and that you are too young to face a long term of imprisonment.
Conclusion
[69] For all of these various reasons I conclude that it would be manifestly unjust to sentence you to life imprisonment without parole.
Minimum Period of Imprisonment
[70] I am required to sentence you to life imprisonment – s 86E(2)(a).
[71] As required by s 86E(4)(b) I now consider the minimum period of imprisonment appropriate in your case.
[72] Pursuant to s 103, the minimum period of imprisonment ordered may not be less than 10 years, and must be the minimum term of imprisonment that the Court considers necessary to satisfy all or any of the following purposes – to hold you accountable for the harm done to the victim and the community by your offending, to denounce the conduct in which you were involved, to deter you and others from committing the same or similar offences, and to protect the community from you.
[73] These provisions are subject to s 104. It provides that the Court must make an order imposing a minimum period of imprisonment of at least 17 years where various identified circumstances exist, unless it is satisfied that it would be manifestly unjust to do so.
[74] Here at least two of these defined circumstances apply. First, the murder committed by you was committed in the course of another serious offence – namely robbery. Secondly, the deceased was particularly vulnerable, because of his age and frailty. While Mr Douch sought to persuade me that a third factor applied – namely that the murder was committed with a high level of brutality, cruelty, depravity or callousness, I do not accept that submission. The victim’s death was caused by a single blow to the head with a bottle. This blow inflicted the fatal injury. The blow was unquestionably brutal and callous, but I do not consider that it was brutality or callousness of a high degree as required by s 104(1)(e).
[75] In my judgment, the murder committed by you was a qualifying murder in terms of s 104, and I must impose a minimum period of imprisonment of 17 years, unless I am satisfied that it would be manifestly unjust to do so.
[76] The Court of Appeal has suggested that in such circumstances, a sentencing Judge should first consider what minimum period of imprisonment would apply in the absence of s 104, and then, if that period is less than 17 years, consider whether the imposition of a minimum period of imprisonment of 17 years would be manifestly unjust.7
[77] Both counsel referred me to a number of authorities. I have considered them.8 None of the cases referred to me is markedly similar to your offending. Most involved murders which were more brutal than the murder which you committed. Some involved offenders who sought to avoid culpability or who showed little or no remorse. You are not in that category. I have also considered a number of other cases not referred to by counsel where there was gratuitous violence, in some cases against strangers and for no apparent reason.9 In these cases minimum periods of imprisonment in the range of 11 – 13 years have been imposed.
[78] Your offending was brutal, callous and gratuitous. The murder was committed to facilitate a robbery. You also have a number of relevant prior convictions. As against this, the brutality and callousness exhibited by you was not extreme when compared to the brutality and callousness of many like offenders. I have accepted that you acted impulsively, and that your mental state at the time was such that your responsibility and culpability for your actions was diminished. You accepted responsibility for your offending from the outset. You entered a guilty plea. There is also your remorse. Were I considering your case in the absence of s 104, I would take as a starting point a minimum period of imprisonment of 14 years, and
then reduce it to 13 years to recognise the mitigating factors.
7 R v Williams [2005] 2 NZLR 506 (CA) at [52]-[54].
8 R v Williams, above n 7; R v Watene HC Wellington CRI-2007-485-127, 11 December 2011; R v
Nichols [2015] NZHC 2185; R v Gottermeyer [2014] NZCA 205; R v Turner, above n 2.
9 R v Davis [2013] NZHC 2716; Key v R [2010] NZCA 115; R v Piilua HC Christchurch CRI-
2005-009-011878, 1 September 2006; R v Sauaki HC Auckland CRI-2006-092-9497, 31 October
2007; R v Kinghorn [2013] NZHC 3216; R v Brown HC Wellington CRI-2010-032-1028, 9 May
2011; Fraser v R [2010] NZCA 313; R v Fahey [2015] NZHC 78.
[79] That period is less than the minimum period of imprisonment specified by s
104. The questions arises – is it “manifestly unjust” to impose a minimum period of
imprisonment of 17 years?
[80] In my judgment, the answer to that question is yes. I have reached that conclusion, first, because of the mental health problems you suffer from. They operate to reduce your culpability. Secondly, you entered a guilty plea at a very early stage. You are entitled to have some weight given to that fact.10 Thirdly there is the remorse which you have expressed.
[81] In my judgment, it would be manifestly unjust to impose a 17 year minimum period of imprisonment on you. I am of the view that a minimum period of imprisonment of 13 years is appropriate in your case.
Sentencing
[82] Mr Kingi, will you please stand.
[83] On the charge of murder to which you have pleaded guilty, I sentence you to life imprisonment, with a minimum period of imprisonment of 13 years.
Final Warning
[84] Given your conviction for murder, and your earlier conviction for robbery, you remain subject to the three strikes law. I now give you your final warning. It explains the consequences of another serious violent conviction. You will also be given a written notice outlining these consequences which lists the serious violent offences.
[85] If you are convicted of any serious violent offence, other than murder or manslaughter, then you will be sentenced to the maximum term of imprisonment for that offence. That will be served without parole or early release unless it would be
manifestly unjust.
10 R v Williams, above n 7, at [72]-[73].
[86] If you are convicted of manslaughter committed after this warning, then you will be sentenced to imprisonment for life. The Judge must order you to serve at least 20 years’ imprisonment unless the Judge considers that it would be manifestly unjust to do so, in which case the Judge must order you to serve a minimum of at least 10 years’ imprisonment.
[87] If you are convicted of murder after this warning, then you must be sentenced to imprisonment for life. The Judge must order you to serve this sentence without parole, unless it would be manifestly unjust to do so. If the Judge finds that it is manifestly unjust to do so, then the Judge must impose a minimum period of imprisonment of at least 20 years, unless that would be manifestly unjust, in which case the Judge must sentence you to a different minimum period of imprisonment.
[88] If you are sentenced to preventive detention, you must serve the maximum term of imprisonment of the most serious offence you are convicted of, unless a Judge considers that would be manifestly unjust.
[89] Mr Kingi you may stand down.
[90] I order that the names and addresses of the victims whose victim impact statements have been read in Court today are not to be published.
Solicitors/counsel:
Crown Solicitor, Hamilton
T Sutcliffe, Hamilton
Wylie J
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