R v Korewha

[2015] NZHC 308

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI  REGISTRY

CRI 2013-027-1137 [2015] NZHC 308

THE QUEEN

v

MATHEW WILSON KOREWHA

Hearing:	27 February 2015
Counsel:	M B Smith for Crown C S Cull and A M Dooney for Defendant
Sentence:	27 February 2015

SENTENCE OF BROWN J

[1]      Mr Korewha  you  are  for  sentence  today  having  been  found  guilty  on

2 December 2014  by a  jury of murdering  Barbara Moka.    In  addition  you  have pleaded guilty to a charge of injuring with intent to injure.

[2]     The sentence for murder, unless it would be manifestly unjust, is life imprisonment.   In your case there is no suggestion that a sentence of life imprisonment would be unjust so that is the sentence that I will be imposing on you.

[3]      But the question I must decide, and to which counsel’s submissions have been directed, is what minimum period of imprisonment should be imposed as a condition of that sentence.  The minimum term of imprisonment is the term that you must serve before you can be eligible for consideration for parole.  It does not fix the

term of your sentence which, as I have said, will be one of life imprisonment.

R v KOREWHA [2015] NZHC 308 [27 February 2015]

[4]      Before turning to address counsels’ submissions I first want to acknowledge today the victims who are present here, the family and friends of Barbara.  I want to acknowledge the courage and the dignity of the victim impact reports which I have received from Isobel Moka, Moengaroa Moka, Lady Jane Moka, Iris Fahy and the statement that I have read of Heremaia Moka.  They paint the picture of Barbara as a vibrant personality who was full of life.  She was described as an awesome mother and sister.  Four children have lost a mother.

[5]      Parliament has provided that for some killings, the minimum period must be at least 17 years unless the Court is satisfied it would be manifestly unjust to do so. Section 104(1) of the Sentencing Act 2002 sets out 10 circumstances in which the Court must impose such a minimum period.   One of these situations is when the murder  was  committed  with  a  high  level  of  brutality,  cruelty,  depravity  or callousness.  Another is where the deceased was particularly vulnerable because of her age, health or because of any other factor.   The Crown contends that the circumstances of this case meet both those criteria.   Your counsel argues to the contrary.  It is necessary for me to review those circumstances.

The facts

[6]      You and Barbara were in a relationship which you told the probation officer had deteriorated in the six months prior to Barbara’s death.  You say that this was due to financial stress and the stress which Barbara was under dealing with counselling requirements requested by Child Youth and Family regarding her four children.

[7]      In  the  January 2013  incident  the  two  of  you  argued  in  your  car  while returning from  work  in  Omapere  to  Rawene  and  you  both  became very angry. Barbara threatened to jump from the vehicle and tried to grab the wheel.   You punched her a number of times in the face.  Barbara received a cut lip and two deep black eyes that lasted for several weeks. As a consequence she called in sick to work for a two week period.

[8]      On the evening of 8 June 2013 you were together at a function at a Marae in Omanaia following the tangi for your sister.   During the course of that evening it appears that there was something of an argument between you.   The two of you subsequently left the Marae by car but less than a kilometre away the car skidded off the road and into a ditch. The reasons for that are unknown.

[9]      A local passerby picked you up and gave you a ride back to the Marae.  At that time Barbara was clearly very upset and was making statements to the effect: help me, he is trying to kill me.  You tried to remove her forcibly from the passenger seat of the vehicle of the person who stopped to assist you.

[10]     Upon your return to the Marae Barbara went off on her own. You spent some time trying to find her, apparently getting angry, or hoha, in the process.  Eventually you found her, hiding in a paddock some 200 metres along the road from the Marae. It was in that paddock that she died.   You inflicted a violent attack on her.   As Shane Lloyd stated in evidence, you told him that you lost it and you beat her.

[11]     The attack resulted in very severe injuries.  Barbara sustained a basal skull fracture which the pathologist described as running through the base of the skull from ear to ear.  The pathologist classified this injury as a severe force injury often seen in high speed motorcycle collisions or falls from great heights. Apparently such a fracture, which is not survivable, would have caused Barbara to become unconscious almost immediately.

[12]     Although the pathologist’s analysis of her injuries were hampered due to the severe decomposition of Barbara’s body, the pathologist was able to describe several other injuries including a nasal fracture, four rib fractures and multiple bruises to her torso,  upper limbs  and  lower limbs.   While the precise  mechanism  of  death  is unknown it is clear that it involved extreme violence.

[13]     According to the probation officer report you accept that you lost control but that you say you had not realised that Barbara was seriously hurt at the time.  I find that  very  difficult  to  accept.     It  is  not  consistent  with  your  statement  to Mr Shane Lloyd to the effect:  I hit her and I beat her and I beat her.

[14]     It also sits uncomfortably with your description of Barbara’s slight frame in the context of the January incident.  You said “there’s not a lot to her she’s pretty tiny.  I didn’t have to hit her much cause she’s only a little girl”.

[15]     Having inflicted these injuries in this way you did not then seek assistance for Barbara.  The pathologist gave evidence that the infliction of the basal skull fracture would   have   rendered   Barbara   immediately  unconscious   but   death   was   not necessarily immediate.   Mr Shane Lloyd stated in evidence that you told him that Barbara did not die straight away and that you lay with her in the paddock as she died. Yet assistance was only a short distance away along the road at the Marae.

[16]     The Crown submits, and I accept, that the callous nature of your treatment of Barbara is evidenced in your subsequent actions.   You wrapped her body in her purple blanket and you took it into the bush where you concealed it in foliage.  You then proceeded to create a false story to explain her disappearance.   This charade commenced as early as 3.30 a.m. on the morning of Barbara’s death when you texted her sister asking her if she had seen Barbara.

[17]     You maintained this pretence for the next 17 days during which you engaged in several interviews with the police and provided false information about sightings of Barbara.   When you finally told the police where Barbara could be found, her body was in a severe state of decomposition.  The suffering of Barbara’s family was plainly exacerbated by your behaviour following Barbara’s death.

Section 104

[18]     The Crown submits that that combination of events triggers the application of both s 104(1)(e) and 104(1)(g), that is both a high level of brutality in the murder and the victim being particularly vulnerable.

[19]     Ms Cull submits that neither the deceased’s physical size nor her relationship with you are factors which warrant the application of the latter test.  While I consider that Barbara was a vulnerable person in a number of respects, I agree with Ms Cull that  she  was  not  “particularly  vulnerable”  within  the  sense  of  that  phrase  in s 104(1)(g).

[20]     Turning to s 104(1)(e), I note the authority cited by Ms Cull, R v Slade which recognises that there is no such thing as a murder which is not, in some sense, brutal, cruel,  depraved  or  callous.1    What  is  required  to  satisfy  the  requirement  in s 104(1)(e) is what is described as a “high level” of the requisite conduct.  The Court of Appeal there said that the provision has to be approached purposively rather than mechanically.

[21]     Ms Cull then argues that the murder of Barbara was not committed with brutality, cruelty, depravity or callousness of such a “high level” as to qualify under s 104(1)(e).  I do not agree.

[22]     You clearly intimidated Barbara at the site of the car accident.   You then tracked her down when she endeavoured to escape from you.  And when you finally found her you inflicted severe life-threatening injuries on her.   In my view the murder of Barbara by what one can properly infer was a sustained attack involved a high level of brutality.  Then having injured her so seriously, it was cruel and callous to fail to take any steps to assist her when help was reasonably proximate.

[23]     In my opinion that course of conduct which I have just described satisfies the requirement of a “high level” of brutality, cruelty and callousness, albeit by a reasonably fine margin.

[24]     I turn then to consider your subsequent conduct.  Ms Cull further argues that your subsequent conduct after Barbara had died did not qualify for consideration under s 104(1)(e).   She refers to the recent judgment of the Court of Appeal in R v Gottermeyer for the proposition that s 104(1)(e) relates to the physical acts of the murder itself and not to the actions following.2   The Court of Appeal there said that the four expressions describe the nature of the murder in objective terms.  It is then said that “the focus” is on the manner in which the murder was actually committed. That is undoubtedly so but I do not construe the reference to “focus” as excluding all

consideration of conduct past the point of death.  That would be inconsistent with earlier authority such as R v Frost where the Court of Appeal rejected a submission

that an appellant’s conduct following the murder could not be used in assessing

whether the murder came within s 104(1)(e).3

[25]     The significance of your conduct in first hiding Barbara’s body in the bush and then leading others to believe that she was still alive is to elevate my assessment, earlier reached solely by reference to the events up till the point of Barbara’s death, well beyond the threshold of a “high level” of callousness.

[26]     Consequently I accept the Crown submission that s 104(1)(e) is engaged. Accordingly a minimum term of 17 years in jail is required unless such an outcome would be manifestly unjust.

[27]     Ms Cull contends it would be manifestly unjust to impose a 17 year minimum term  of imprisonment.   She refers to  R  v  Williams  where the Court  of Appeal recognised that such a term will be manifestly unjust where the sentencing Judge decides as a matter of overall impression that the case falls outside the legislative policy that murders with specified features are sufficiently serious to justify at least that term.4   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.  The Court of Appeal there noted that the conclusion may be

reached only on the basis of clearly demonstrable factors that withstand objective scrutiny and it warned that Judges must guard against allowing discounts based on favourable subjective views of the case.   The sentencing discretion of Judges is limited in that respect.

[28]     I note Ms Cull’s submission that you have no prior convictions (although the events  of  the  other  charge  pre-dated  your  killing  Barbara).    I  also  note  your expression of regret to the probation officer although, as already mentioned, I am dubious about your statement that you did not realise at the time that Barbara was seriously hurt.  You did ultimately assist the police in locating her body.  But I agree with Mr Smith that limited credit should be given for that in the total context of this case.  However none of these matters lead me to the view that the sentence which

s 104 requires would be manifestly unjust.  I consider that that term is appropriate to satisfy the four sentencing purposes set out in s 103(2) of the Act which I will not repeat this morning.

[29]     On the charge of injuring with intent to injure an appropriate starting point is two years, six months imprisonment.

[30]     You entered a plea of guilty to that charge after your conviction of the charge of murder.  The evidence in respect of the charge was overwhelming and included your own admissions to the police.  I consider that an appropriate discount for your plea is four months.   Accordingly on that charge you are sentenced to a term of imprisonment of two years and two months to be served concurrently with your sentence on the murder charge.

[31]     So Mr Korewha would you please stand.

[32]     On the charge of assault of injuring with intent to injure you are sentenced to a term of imprisonment of two years and two months to be served concurrently with your sentence on the murder charge.  On the charge of murdering Barbara Moka I sentence you to life imprisonment and I direct that you must serve at least 17 years in prison.

Please stand down.

Brown J

Solicitors:

Crown Solicitor, Whangarei
C S Cull, Kerikeri

A M Dooney, Whangarei