R v Knight

[2012] NZHC 2866

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-083-425 [2012] NZHC 2866

THE QUEEN

v

MORGAN WAYNE KNIGHT

Hearing:         31 October 2012

Counsel:         F Pilditch for Crown

I Farquhar for Offender

Judgment:      31 October 2012

SENTENCING NOTES OF TOOGOOD J

Solicitors:

F Pilditch, Gordon Pilditch, Rotorua:  [email protected]

I Farquhar, Taupo:  [email protected]

R V KNIGHT HC ROT CRI-2012-083-425 [31 October 2012]

[1]      Morgan Wayne Knight, you appear for sentence having pleaded guilty to murder.  Unless there are exceptional circumstances, convictions for murder result in a sentence of life imprisonment with a minimum period of imprisonment of at least ten years.[1]    It is not suggested in this case that life imprisonment should not be imposed, so the only question I am left to determine is whether or not a period of imprisonment of greater than ten years is appropriate.

[1] Sentencing Act 2002, ss 102, 103.

[2]      The circumstances which have brought you here are these.  On 13 April 2012, you were hitch-hiking on your own just south of Taupo. You were picked up by your victim, Mr Tunnicliffe, who was a 64-year-old man, an ACC beneficiary who lived alone.  You were unemployed and had no money and you asked Mr Tunnicliffe if he had any spare cash he could give you.   He said you could earn some money by trimming some trees and he invited you back to his home, where he lived alone, for lunch. You arrived at Mr Tunnicliffe’s home in the late afternoon.  He said he would provide you with some food and that you were welcome to spend the night and do the work the following day.

[3]      Mr Tunnicliffe and you sat around the fire in the evening watching TV and chatting.  You told the Police that at approximately 1:00 am you overreacted when your victim reached out and touched your penis through your clothing.   You acknowledge your violent reaction in which you punched Mr Tunniclifffe’s head before flipping him over the couch and onto the floor.  You punched him again and then, when he was probably unconscious, you kicked him about six times in the stomach  and  then kicked  and  stomped  on  his  head  about  five times.   You  left Mr Tunnicliffe unconscious and seriously injured on the floor while you stole a number of items including a laptop computer, a camera case, headphones, car keys and wallet, a cellphone and four bottles of alcohol.

[4]      Neighbours heard the commotion and saw you leaving the house.  You were picked up a short time later by a Police patrol while still in possession of the stolen property and wearing a pair of your victim’s shoes which were covered in his blood.

Your  immediate  admissions  to  the  Police  were  that  you  stole  Mr Tunnicliffe’s

alcohol and that he got angry so you kicked his head in.  You acknowledged that he was probably dead.

[5]      Despite  treatment,  Mr Tunnicliffe  never  regained  consciousness  from  the massive head injuries from which, ultimately he died.

[6]      In a later statement to the Police you said that you had lost it because your victim “grabbed your dick” and you said that you only took stuff after the incident because it seemed like a good idea as you had nothing.  You said that your initial comments to the Police officer who apprehended you were made because you were “off your face and didn’t know what you were saying”.  You appeared to the Police to show some remorse for your victim’s fate.   I accept the proposition from the Crown  Solicitor  that  there  is,  or  may be,  a  basis  for  your  suggestion  that  you overreacted to a sexual overture by the deceased and that is the basis on which I approach this sentence.

[7]     But even if your victim acted towards you in the way you claim, the circumstances did not call for any kind of violent reaction let alone a sustained serious  attack  on  the  defenceless  victim.    In  the  circumstances,  as  your  plea indicates, you were, at the very least, thoroughly reckless as to the consequences in circumstances in which you knew that your attack could result in Mr Tunnicliffe’s death.

[8]      The brutality of your attack, then leaving Mr Tunnicliffe unconscious on the floor and stealing his property, take you very close, in my view, to the level of brutality or callousness which would result in an automatic minimum period of imprisonment of 17 years or more.  Counsel for the Crown does not consider that minimum to be justified here and I agree with him.  Nevertheless, the circumstances are such, in my view, by reference to the brutality and callousness of your actions alone, that would justify a minimum period of 15 years’ imprisonment.

[9]      Mr Pilditch is right, however, that your early guilty plea and the fact that you are only 21 would entitle you to substantial discounts from that minimum term which would probably take it back to around the ten year minimum.

[10]     You had a difficult childhood.  Your father was sexually abusive, although you were not apparently the subject of any unlawful attention from him.  However, you have had tragedy in your life through your father’s suicide when you were aged five; and what appears to be the related suicide of an older sister.  Also, you have experienced the tragedy of the suicide of a half-brother, and a close family friend. The information provided to me suggests you are a loner and a drifter.  At the age of nearly 22, you are estranged from your mother and other members of the family with the result that you have no moral or social compass and apparently few social skills.

[11]     Mr Farquhar has submitted that a term of life imprisonment with a statutory minimum period of ten years’ imprisonment would be sufficient to meet the relevant purposes of holding you accountable for the harm you have done; denouncing your conduct; deterring you and others from offending of this kind; and protecting the community from you.[2]   I am satisfied that he is right.  You have no history of violent offending; this was, it seems, a spontaneous overreaction and I take into account that serving at least ten years’ imprisonment is a harsh penalty to be imposed on someone of your age and relative immaturity.  You are said to be profoundly remorseful and I

accept that; you have never denied your involvement in Mr Tunnicliffe’s tragic death

and those matters are to your credit.

[2] Sentencing Act 2002, s 103.

[12]     In my view, the Parole Board will be best placed to determine when, after you have served ten years’ imprisonment, it is appropriate to release you into the community.

[13]     Mr Knight please stand.   You are sentenced to life imprisonment with a minimum period of imprisonment of 10 years.  Stand down.

...........................................

Toogood J