R v Kriel HC Whangarei CRI 2008-027-2728

[2010] NZHC 598

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2008-027-2728

QUEEN

v

HERMANUS THEODORUS KRIEL

Hearing:         23 March 2010

Appearances: MB Smith and N Dore for Crown

C Cull and L Langridge for Offender

Judgment:      23 March 2010

SENTENCING NOTES OF ASHER J

Sentence imposed:     Murder

11 and-a-half-years’ imprisonment

Indecent assault

Six months’ imprisonment (concurrent)

Solicitors:

MB Smith/N Dore, Marsden Woods Inskip & Smith, PO Box 146 Whangarei ([email protected] [email protected] )

C Cull, Barrister, 212 Waipapa Road, RD2 Kerikeri 0295 Northland ([email protected]z ) L Langridge, Barrister, Auckland (leigh[email protected] )

R V KRIEL HC WHA CRI-2008-027-2728  23 March 2010

[1]      Theodore Kriel, you have been convicted after a trial of the murder and indecent assault of Liberty Templeman, and you now appear before this Court for sentence.

Facts

[2]      I begin with the facts, which it is necessary to summarise.   This is not a straightforward task, and will take a little time as the crucial facts have to be reconstructed.

[3]      At  the  time  of  her  death  Liberty  Templeman,  whom  I  will  refer  to  as “Liberty”, was aged 15.  She resided in Auckland with her parents, but had only been there for a short time.   Previously the Templeman family had lived in Kerikeri. Liberty had gone to the local High School where she was a popular student.   In recent years she had excelled in drama.  In the time since she had left Kerikeri for Auckland, she had maintained close contact with her friends in Kerikeri, including her boyfriend.

[4]      With the approval of her parents she had arranged to come to Kerikeri for the weekend of 1 and 2 November 2008.   She got a ride up with one of her parents’ friends, arriving on the Friday evening.  She spent the Friday night with her friends and boyfriend, who had a part-time job working in the New World Supermarket. The next day, while her boyfriend worked at the supermarket, she linked up with some other friends for the late morning and early afternoon.   In the middle of Saturday afternoon she met up with another group of friends, who included you, Mr Kriel.  That meeting was coincidental and unplanned.

[5]      In the group that Liberty met at that time there were other friends, some of whom I perceive may have been closer to Liberty than you were.  You had had some association with Liberty at school and you knew each other well enough to occasionally text each other, but you were not close friends.

[6]      After meeting with the group that you were part of Liberty left her other friends, whom she had been with through the early afternoon, and joined your group. Together you all walked and biked to the New World Supermarket, which was a few kilometres away from where you had initially met Liberty.  You and another of the boys in your group had bikes, and you carried girls in the group on your handlebars. Some of the group went into the New World Supermarket, and your presence there was recorded by the video cameras.  The video footage shows Liberty and her friend, and it also shows you on occasions.  I do not take the view that the video footage shows any sinister behaviour on your part and, indeed, the Crown has not suggested that that is so.   You may appear a little withdrawn from the others, but there is nothing to show that you were stalking Liberty.

[7]      You then, again together as a group, returned back to where you had come from.  A group of you gathered at that place, which was outside a home in which some parents of children in the group were attending a party.   It was now about

6:00 pm.

[8]      Liberty was to meet her boyfriend who finished at New World at 9:00 pm that evening.  There was still some time to spare and she had no plans.  Although we do not know exactly what was said or done, clearly she decided she would walk back and visit her boyfriend again while he still worked.  At about 6:30 pm, she left her group of friends to go back to the New World Supermarket.  You accompanied her. You had to be home by 7:00 pm and had a bit of time.

[9]      I have no doubt, having heard the evidence, that it was a chance circumstance that led to you and Liberty being on that road together in the group at about 6:30 pm, her then deciding to go back to New World, and it then being decided that you would accompany her.  It was spur of the moment, and there is nothing to indicate that you had any particular plan in mind when you went with her.

[10]     It is clear that on the way into town you came to the bridge you had already crossed several times earlier in the day, across the Wairoa Stream.   The precise details of what happened after that are unclear, as you are the only living witness, and you have given four different versions of the facts, none of which, on the basis

of the jury’s verdict, can be treated as entirely accurate.  Having heard the evidence the closest version of what you said you did to the truth was what you said to the police in the course of your third and final interview on the Friday following your arrest, but there are question marks over aspects of what you said then as well.

[11]     Reconstructing as best as possible from what we know, it is clear that you both made your way down a rough track or old drive to the side of the stream about

50 metres away from the bridge, to an area largely out of the sight to passers-by on the road.  You say you went down to the water’s edge at her suggestion because she had seen a cone in the stream that she wanted to look at or get.    It is possible that that story is true as Liberty was clearly an inquisitive and energetic person, and your explanation as to why you both went down is slightly supported by the fact that there was evidence that a cone had been observed in the stream on the day in question. But I cannot be certain that it is true.

[12]     But this I am satisfied of.  Whatever reason led Liberty to go to the stream, she went down there of her own free will.  I do not think it is conceivable that you forced her to go down there.  If you had there would have been signs of a struggle in the thick high grass trail leading down to the stream edge rather than the signs that were there just by the stream.  And, what is more, large as you were, I doubt that you could have forced or dragged an unwilling Liberty all that distance from the road without her, at the very least, attracting attention.  So for some reason she willingly went with you (or you went with her) down to the stream edge.

[13]     You say that you then both took off your shoes in the grass above the stream, and then went to walk up the stream to get the cone.   You say you slipped and accidentally fell into her causing her to fall over, smashing her face against a rock. You say she then stormed out of the stream, put on her shoes and got up to go back up to the road, and was angry with you.  You say that when you tried to stop her and remonstrate with her that she hit at you and that you then hit her back, knocking her unconscious.

[14]     Your defence has relied on the evidence of the pathologist, Dr Koelmeyer, to support your story.  He conceded when he was being cross-examined that the injuries

to Liberty’s face, as distinct to the two sides of her head, could have been caused by a fall on the rocks (although the damage to her face was equally consistent with her having been punched in the face).   I add that it is quite clear that the injuries that concussed her, the injuries to either side of her head, were clearly caused by fists on Dr Koelmeyer’s evidence.   In any event, Dr Koelmeyer’s assessment of the facial injuries are not inconsistent with your story.   The evidence of the crushed grass where the struggle occurred is also not inconsistent with your story.   The defence also relied on some blood that was on a rock in the stream to indicate that that could be where she fell on her face, but that could also be consistent with her bloodied back being dragged over that rock.

[15]     The inherent problem with your version of events, which is that the slip caused her anger and your fear of the police, is that it seems a slim premise on which to base an allegation that Liberty was so angry with you that a fight ensued, and that you felt obliged to punch her so that she did not go to the police.  It seems unlikely that she would have reacted in such an angry way, even given the defence contention that Liberty could dramatise.  It is even more unlikely that you could have thought you were threatened with police action in this way, if all that had happened was that you had accidentally pushed her.  I have to say that what seems more likely is that you did something to gravely offend Liberty, possibly a sexual advance.  When she reacted strongly to this, possibly punching you in the chest, (and we know there was a red mark on your chest), you then attacked her in retaliation, knocking her unconscious.   However, that is speculation and we will never know exactly what happened.

[16]     And I have to make it clear that although I cannot accept your version of events, I do not assess your culpability on the basis that you did make an advance, because that is not proven, or that prior to you punching her you had been guilty of culpable behaviour.  The evidence is not there for me to reach a conclusion to the criminal standard on such a matter.  I am, however, entirely satisfied that your attack on her was unprovoked.

[17]     So, what is clear is that for some reason  you  attacked  Liberty, and  you knocked her unconscious with at least two blows to either side of her head.  Despite

the qualified medical language used by the pathologist, the blows you struck her with were fairly hard blows, administered with the force you could bring to bear as a young man of approximately 6 feet 4 inches in height.  They hit her with sufficient force to make her fall to the ground unconscious.

[18]     I am satisfied from the marks on her neck shown in the photos and discussed with Dr Koelmeyer, that you made an effort to strangle her.  The marks do not show a very serious attempt as the bruises are shallow, and there is no damage to any of the neck structure or neck organs.

[19]     I am satisfied that at some stage, possibly before you inflicted the punches - but most likely immediately after you had inflicted the punches and knocked her unconscious, you formed the view that you needed to kill Liberty to ensure that you were not blamed for what had happened.  You said in evidence that you hit her to stop her going to the police.  I will return to this issue later in the sentencing.  But what arises from the jury’s verdict is that you formed a murderous intent.  Your story was that you never intended to kill Liberty and that when you thought your punches had been fatal and thought her already dead as the accidental consequence of your punches, you then tried to dispose of her body.  That defence was clearly rejected by the jury.    If they had  accepted that they would have found  you  guilty only of manslaughter.

[20]     After your attempt to strangle her, realising that it had been unsuccessful, you dragged Liberty to the stream and left her there face down in the water.  You wanted to kill Liberty, and leave her face down in the water to ensure that she would not be telling the police of your wrongdoing.   Her death was the inevitable and intended result of your actions.  I do not accept your explanation that she ended up face down in the water accidentally.   You asked the jury to defy reasonable belief when you suggested you accidentally turned her body over because it caught on a rock as you pushed her into the bank.  Considerable force would have been required to flip her over, and this indicates a deliberate intent to do so.

[21]     Prior to dragging her to the stream, you pulled the clothes off her body, exposing her.   I consider that this happened at the area of flattened grass by the

stream rather than in the stream itself as you have suggested in at least one of your statements.  That is because bits of her clothing that would have come off in your ripping it off her body were found in the grass.

[22]     I do not necessarily accept your claim that you did this to make the attack appear to be rape by a third party.   However, there is no evidence of any sexual assault on her.   And, again, bearing in mind that I can only act on aggravating matters that are proven to the criminal standard, I will treat that aspect of your conduct, and the conviction for indecent assault, as being a non-sexual act on your part.  Clearly, however, even on that basis your act can only be viewed as a gross indignity.

[23]     Thus, to summarise I am satisfied to the criminal standard, based on the jury verdict and my own observations: first, that you punched Liberty and knocked her unconscious; secondly, that either before or after punching Liberty – probably after - you formed an intention to kill her so that she would not go to the police; and, thirdly, that you proceeded to attempt to ensure that she was dead, first by strangling her, and then by placing her face down in the water.  And we know now that she was alive when she was placed in the water, and she died by drowning.

[24]     You then went home and proceeded to outwardly behave through the evening and the next day as if nothing had happened that involved you.  When contacted by anxious people about Liberty’s disappearance, including her mother, you glibly lied about what had happened that night.  You maintained these lies through the police interview on Sunday night, asserting that you had gone with Liberty as far as the school grounds, and then left her there to walk up to the New World alone, while you returned home.

[25]     Then  as  the  police  officers  involved  carefully  collected  evidence  which started to point more and more to incriminating you, you changed your story.   In your lengthy second statement on the Wednesday, you said that Liberty had developed a blood nose in the school grounds to explain possible blood on your shoes.  However, the police continued their work.  On the Friday you came into the police station with your parents.   You were spoken to by Detective Hayes, who

throughout was fair and patient in his dealings with you.  You spoke with your father in Detective Haye’s absence, and when he came back your father said that you wanted to confess, and in that third statement you confessed to killing Liberty.  You said that after you hit her she was still breathing, and that you thought she might go to the police so you strangled her and pulled her into the stream.  Then when you gave evidence you, effectively, retracted your earlier assertion that you were aware that she was breathing when you pulled her into the stream, and in your evidence you asserted that you thought she was dead after you had punched her and dead when you put her in the water.  As I have said, the jury clearly did not accept that.

[26]     It is necessary for me to say something more general about the facts in the light of the decisions that I must make about the level of brutality and callousness that you displayed, and Liberty’s vulnerability.  I repeat, I can express no final view as to what happened leading up to your attack.   But in terms of that attack your action  can  be  seen  as  a  continuous  sequence  starting  with  at  least  two  savage punches to her which knocked her out.  And then, immediately following, a process governed  by fear  of  apprehension  and  panic  where  you  realised  you  had  done something that was very seriously wrong, something that was a crime, and in that panic tried to ensure that she would tell no one by killing her, first trying to strangle her and then dragging her down to the stream and pushing her in face down.  I do see it as a continuous sequence of events, starting with the punches and ending with her being placed in the water.   I see the drivers as being anger at the start when you punched her, driven by we know not what, and then panic and the desire to avoid being caught.

Victim impact

[27]     I want to turn to the impact of what you did.

[28]     I   have   the   victim   impact   reports   of   Rebecca   Templeman,   Andrew Templeman, Billy Templeman, Monica Hempstead and Gillian Templeman.   I acknowledge  again,  as  I have already,  the  presence  in  court  today of  Liberty’s parents, Mr and Mrs Templeman, and Liberty’s brother, Billy.  I acknowledge on the

part of our community the terrible suffering that they have been through, what is called by Mrs Gillian Templeman as the ‘ripples of consequence’.

[29]     Liberty’s delightful personality has been a constant presence through this trial.  She had an extraordinary creativity and tenderness, as the poem that you have read, Mrs Templeman, shows.   She was a very special and a very talented young woman with an exciting future in acting or the arts more generally.   Who knows what she could have achieved?  Her joyous and affectionate personality was clearly shown in the video footage of her skipping hand-in-hand with her friend through the New  World  Supermarket  as,  initially  startled  but  then  undoubtedly  delighted shoppers looked on.   She had a great ability to make other people feel happy and special.

[30]     The murder of Liberty, such a person with so much to offer, your loved daughter and sister, changes their lives forever irrevocably.   In Mr Templeman’s graphic phrase “you are left with a tarnished life”.   And the damage is not just limited to the Templemans.   It extends to Liberty’s very close group of friends, I have no doubt, who will live their lives seriously affected by the loss of such a dear and loved friend.  The wider Kerikeri community, clearly a functioning and trusting community, has been left bewildered and shocked by this brutal and inexplicable killing, and there is no doubt that it will bear the scars for many years hence.  All are left with inconsolable grief following Liberty’s murder.

[31]     As an aside, I record that the Kerikeri Police and the police who were brought in from other centres, showed a high degree of intelligence, diligence and sensitivity throughout this difficult investigation.

Life imprisonment

[32]     It is against this background of fact and impact that I turn to the question of what sentence should be imposed.   The starting point is straightforward.   Under s 102  of  our  Crimes  Act 1961  there  is  a  presumption  of  a  sentence  of  life imprisonment for murder.  There are no reasons not to impose this sentence on you, as your counsel accepts.  You are sentenced, therefore, to life imprisonment.  Life

imprisonment means just that.  Unless you otherwise satisfy the Parole Board and get parole, you will be in prison for the rest of your life.  Interested parties may make submissions on the issue of parole at any time it arises.  And if you are released, you will  be  on  parole  for  the  rest  of  your  life.    So,  that  is  the  sentence.    Life imprisonment.

[33]     The task that I have to address and the task that counsel have focused on in their helpful submissions, is the minimum term that should be imposed in which you cannot  get  parole.    Because murder is our most serious crime and  because the sentence is life, our legislature has imposed a minimum term of at least ten years’ imprisonment in respect of any life term for murder, unless it would be manifestly unjust to impose such a minimum term of ten years.  Your counsel has correctly, in my view, not suggested that any consideration of manifest injustice would arise in relation  to  that  ten  year  minimum.    Our  legislature  has  also  in  s 104  of  the Sentencing Act 2002, set out certain circumstances where the minimum term must be 17 years’ imprisonment, unless the court is satisfied that it would be manifestly unjust to impose such a 17 year minimum term.

Submissions

[34]     I turn to the submissions I have received.

[35]     Mr Smith for the Crown has invited me to consider treating your offending as falling  within  s 104  and,  therefore,  to  impose  a  minimum  term  of  17 years’ imprisonment.  He has also made submissions on the basis that s 104 may not apply. As an alternative submission, he has submitted that if s 104 does not apply that the usual minimum of ten years’ imprisonment that I mentioned earlier would not be sufficient, and that there are aggravating factors which warrant a starting point of a

12 to 14 years minimum term, with an uplift of at least a further year because of the indecent assault conviction.  Mr Smith accepted that there should be a discount for your youth, and that it should be limited to one to two years’ imprisonment.  And, so, if s 104 is not applied the Crown submitted that the minimum term that I should impose upon you, taking into account all factors, should be between 11 and 14 years.

[36]     Your counsel, Ms Cull, submits that s 104 should not apply.  She submits that it would be manifestly unjust for a 17 year minimum term to be imposed on you. She  submits  that  if  s 104  does  not  apply,  that  in  terms  of  ordinary sentencing principles the minimum term imposed should be ten years’ imprisonment for you, and no more.

Approach to sentencing

[37]     I need to say something about the approach to sentencing.

[38]     It is clear from the Court of Appeal decision of R v Howse,[1] that s 103, which mandates a ten year minimum term, creates that ten year minimum period of imprisonment for ‘standard’ cases of murder.  It was stated in a decision to which both Mr Smith and Ms Cull have referred to at some length, R v Williams,[2]  that when, as here, s 104 is raised, the court must consider the degree of culpability involved in the sentencing before it, in relation to that involved in the standard range of murders[3] warranting only a ten year term.  The court must assess the presence or otherwise of s 104 factors.  The sentencing judge should have regard to the policy of s 104,  which  is  that  in  general  the  presence  of  one  or  more  of  those  factors establishes that the murder is sufficiently serious to justify a minimum term of imprisonment of not less than 17 years.  It was stated that a court should, if any of those four factors is proven:[4]

… consider whether to impose a minimum term of 17 years’ imprisonment would be manifestly unjust. If it is, the minimum term must be reassessed to what the Court considers to be justified. The Court may not, however, approach sentencing in s 104 cases on the basis that the 17-year minimum can be reduced whenever the Court considers that is appropriate. There is no warrant to interpret the provision merely as a guide to judicial discretion. The question of whether the outcome of the assessment would make a 17- year  minimum  term  manifestly  unjust  must  also  be  approached  in  a principled way.

[1] R v Howse [2003] 3 NZLR 767.

[2] R v Williams [2005] 2 NZLR 506 (CA).

[3] At para [52].

[4] At para [54].

[39]     In approaching your sentence and the issue of s 104 and the aggravating features, I propose to adopt the following process.  I will consider, first, whether any

of the s 104 factors arise.   If they do, I will then consider whether it would be manifestly  unjust  to  impose  a  17 year  minimum  term.    If  no  s 104  factors  are established, or if they are and I am satisfied that it would be manifestly unjust to apply s 104, I will go on to consider whether taking into account aggravating and mitigating factors, a minimum term of more than ten years is warranted.  I will then proceed to fix the appropriate minimum term under s 103.

Have s 104 factors been proven?

[40]     So I turn first to the question – have s 104 factors been proven?

[41]     Mr Smith  for  the  Crown  relied  on  three:    First,  that  the  murder  was committed in an attempt to avoid detection, prosecution or conviction for an offence, or in some other way to attempt to pervert the course of justice; second, that the murder  was  committed  with  a  high  level  of  brutality,  cruelty,  depravity  or callousness; and, third, that Liberty was particularly vulnerable due to her age and other factors.

[42]     I consider that the first aggravating feature, namely committing the murder to attempt to avoid detection and prosecution, has been proven.

[43]     On your own say-so in your third statement and in parts of your evidence, although you said different things in other parts, you were attacking her to stop her going to the police.  Although you did not go so far as to say this in your evidence in this court, it is clear that the only way in which you could have stopped her going to the police was to kill her.  If she was not dead she was going to end up talking to the police and that would have led to your detection.

[44]     While not quarrelling with the fact that you killed Liberty to stop her going to the police, the point that Ms Cull makes on your behalf is that it has not been proven that you had actually committed an offence before you formed that view and went to kill her.  She says that your evidence about the accidental push establishes at least another possible explanation, which is a fear that Liberty would go to the police and tell on you because you had pushed her.  And certainly if you murdered her because

you were afraid of the consequences of an entirely accidental push, it might well be that the s 104 factor did not apply.

[45]     However, I cannot accept Ms Cull’s submission.  I have already indicated my view about what you did earlier in my summary of the facts.  In your third and final statement to the police you said that after you punched her she was lying on the ground breathing.  You then thought she might go to the police and so you strangled her and pulled her into the stream.  This account is also consistent with at least one part of your evidence at trial, although at other places in your evidence you said you were afraid she would go to the police before you punched her and that is why you punched her.   As I have already said, I am not able to finally determine what the sequence was and what you did prior to the punching.   But I am satisfied to the criminal standard that you had done something that was an offence of sufficient seriousness to create a situation where Liberty would go to the police and get you into serious trouble.  I have no doubt that it was some criminal offence on your part, either before you punched Liberty but most likely the punching itself, which led to your fear that she would go to the police.  I, therefore, find that s 104 aggravating feature proven.

[46]     Mr Smith in this context also mentioned s 104(d), which is “committing a murder in the course of another serious offence”.  He said the other serious offence was the indecent assault.  I do not accept that submission.  It has not been proven that the indecent assault was anything more than something you did after Liberty was unconscious, and incidental to the murder.  Although you have been convicted of the indecent assault, I am not able to find it proven that there was a sexual or more sinister aspect to what you did.

[47]     I now turn to the other two factors that were put forward by Mr Smith in support of the application of s 104.   The first was that, there was a high level of brutality, cruelty, depravity or callousness.

[48]     There is no doubt that what you did to Liberty was brutal, cruel and callous. In particular, you dragged her down to the river and placed her there face down.  By any reasoning that was a wicked and callous act.  However, sadly as was observed in

R v Slade,[5] most murders involve elements of brutality, cruelty and callousness.  And indeed cruelty is in itself an aggravating feature taken into account in the sentencing process outside of the s 104 context.  That cruelty must be taken into account in your sentencing, but the question is, was it to such a degree that warrants the application of s 104?  The word used in s 104 is ‘high’ level of brutality, cruelty, depravity or callousness.

[5] R v Slade [2005] 2 NZLR 526, at para [40].

[49]     As I said earlier, I see your attack on Liberty and your dragging her to the stream and placing of her face down in the water, as one part of a continuous attack, begun in anger and finished in a panic and fear of detection.

[50]     I compare this case to R v Shepherd,[6] where the victim was tied up and taken conscious to a bridge and then thrown into the water, knowing she was going to die. That case involved a far greater degree of cruelty over a much longer period, and in that sort of case it is undoubtedly appropriate to apply s 104 on the basis of s 104(e). I also compare your case to that of R v Cameron,[7]  where the offender targeted the young friend of his niece, raped her, rendered her deeply unconscious, wrapped her body in a sheet and then took her down to a river and put her in.  Again, that was a much lengthier and more cruel and brutal chain of brutal conduct.

[6] R v Shepherd HC Auckland CRI-2004-092-13121, 12 November 2006.

[7] R v Cameron HC Christchurch CRI-2008-009-6389, 24 August 2009

[51]     I conclude that your brutality and callousness, while it will be taken into account in sentence, does not reach the level envisaged by the section.

[52]     Turning to vulnerability, the third ground relied on by Mr Smith.   I accept that Liberty was vulnerable.  However, the case cannot be compared to cases such as R v Little,[8] where s 104 was invoked because the victim was a baby.  Liberty was not vulnerable in that sense.   She was an able-bodied young woman coming into the prime of life.  I have considered whether your taking advantage of her unconscious state, qualifies her as a person who was in terms of s 104 “particularly vulnerable”.

Given my assessment that the events were part of a continuous sequence on your part, starting as an assault and ending with a deliberate intention to kill her arising

from panic and a desire not to be caught for what you had done at the start, I do not find this element of particular vulnerability established.   It is not uncommon for a victim in the process of being attacked, to go from a position where they are able- bodied to where they become unconscious or incapable of defending themselves, and for the attack then to continue taking advantage of that state with them ultimately being killed.  Thus, I do not find that particular aspect of vulnerability established.

[8] R v Little [2007] NZCA 491

[53]     However, I have found the first ground to be proven.  That means that s 104 applies on its face, and I will have to impose a minimum term on you on that basis unless I consider it would be manifestly unjust to do so.  I now turn to that issue, whether the minimum term of 17 years would be manifestly unjust.

Am I satisfied that a 17 year term is manifestly unjust?

[54]     The approach to manifest injustice was referred to in R v Williams.   The

Court concluded:[9]

… 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 based on favourable subjective views of the case.  The sentencing discretion of Judges is limited in that respect.

It was also observed in the case of R v Parish,[10]  that where manifest injustice is established it is more likely to arise from circumstances of the offending, rather than the circumstances of the offender.

[9] At para [67].

[10] R v Parrish (2003) 21 CRNZ 571 (CA), at [21].

[55]     I also note Mr Smith’s submission that on the basis of the decision of R v Rapira,[11]  which did not relate to manifest injustice in a s 104 context but a s 102 context, that youth alone is not enough.  He submitted that the court in considering

s 104 must look at all the circumstances and, indeed, ultimately so did your counsel, Ms Cull.   In assessing whether manifest injustice should apply, I quote what was said in R v Williams:[12]

The Courts’ observations in Rapira concerning the need for the injustice to be clear in its indication that the meaning of manifestly unjust was to be ascertained by reference to the sentencing purposes and principles set out in ss 7, 8 and 9 of the Act has equal application in the context of s 104.

[11] R v Rapira [2003] 3 NZLR 794 (CA), at para [122].

[12] At para [56].

[56]     I have already dealt with some of the aggravating factors that were part of your offending: the brutality; the callousness; Liberty’s vulnerability; the enormous impact on the victims; and the one qualifying s 104 factor.   I must consider your youth at the time.   I note in doing so that a minimum term of 17 years has been imposed on people of a young age in a number of New Zealand cases, in particular R v O’Brien[13]  and R v Luff.[14]   The ages involved there were 17 and 16 respectively. You were 14 years old, younger than those offenders.  It is a terrible thing to have to compare young offenders with other young offenders.  But it has to be said that the

younger the offender the more relevant age will be in terms of an assessment of manifest injustice.

[13] R v O’Brien (2005) 20 CRNZ 572 (CA).

[14] R v Luff HC Palmerston North S4/02, 19 September 2002

[57]     I have already said that on my assessment, the drivers of your murderous actions were, first, anger and then panic and a desire to hide your wrongdoing.  It is my assessment that your actions when you murdered Liberty showed, in parts, marks of considerable immaturity.  The panicky reaction of trying to hide your wrongdoing, despite the inevitability of your actions being discovered, in itself had a childish quality.  There was no hope that Liberty’s death, or the general circumstances of it, could ever be disguised.

[58]     While   in   your   dealings   with   people   about   the   murder   you   showed considerable cunning and guile.  In other respects you behaved naively, and like a child.  In particular, after the murder you had blood on your shoes and your shirt was covered in blood.  You tried to splash water from the stream on your shirt to get the blood off, but it was clear that there was still a considerable amount of blood on your

shirt when you got home.   Rather than put the shirt in the washing machine or destroy it or effectively hide it, you put it in a plastic bag with some other rubbish in your room and threw it out the window of your room and into the outside foliage.  It sat there for some days while you were still living in the room, until it was easily discovered by an alert policeman who was walking down the boundary line of your house.  You had left it there for days, when it was very obvious that the shirt was a most incriminating piece of evidence, and that the police knew that you had been wearing it that night.  Indeed, you had told them in your first interview that you had worn it, and there was video footage that you were aware of showing you wearing the shirt.  The fact that you impulsively threw it out the window in a plastic bag and then left it there demonstrates to me that there was an aspect to your conduct of childish denial, although you did not outwardly present in this way.

[59]    I will say more about your character later on.   But this, and my other observations of you in the witness box, confirmed by comments in the probation report  and  other  reports,  persuade me  that  at  the  time  of  the  murder,  although possessed of considerable height and strength, you were immature.   You were, if anything, young for your age in terms of your social skills and ability to deal with situations.  The very attempt to hide your wrongdoing by attacking Liberty had the mark of childish panic and then denial.  Your calmness in the days that followed is a source of concern.  But it has to be said it was almost a blankness.

[60]     I bear in mind observations that have been made by expert professionals about you that you have a tendency to withdraw.  You appeared to remove yourself from the emotional reality of what you had done.  So, although aspects of what you did show considerable cunning when you have changed your story and told lies on many occasions, I consider your youth, the fact that you were a 14 year-old and not a very mature 14-year-old, as being a significant factor in your actions.  I will also be saying a bit more about your character shortly.  What you did was out of character. You had no apparent propensity towards violence, no reputation for it, and none has been perceived in the period that has followed while you have been in custody.

[61]     In assessing manifest injustice the judge does, in the end, have to stand back. I am satisfied that because of your youth, the fact that what you did was so out of

character, and the features of your offending and your subsequent actions which show  you to have been  acting,  at least at times, like a child, that  it  would be manifestly unjust to impose a minimum term of 17 years.  In doing so I also take into account other features, such as the lack of any long period of premeditation, the absence of a weapon and, after you had confessed, your acceptance at least of the fact that you had wrongly killed Liberty, although you did still continue to lie about aspects of your behaviour.   In reaching this conclusion, I take into account other cases involving facts not greatly dissimilar to yours where no minimum term under s 104 was applied, or like term.   In particular, I have in mind the cases of R v

Broughton[15],  and,  although  it  was  a  pre-section  104  case,  the  end  sentence  of

13 years in R v Abraham.[16]

More than a ten year minimum term?

[15] R v Broughton HC Rotorua CRI-2008-269-62, 26 March 2009. 

[16] R v Abraham CA139/03, 28 October 2003.

[62]     So I now turn to the next question which is whether, contrary to Ms Cull’s submissions, a minimum term of more than ten years should be imposed in relation to your offending.  As I have said before, I take into account the terrible damage you have done to those who love Liberty and the wider community.

[63]     I have already referred to this difficult concept of the “standard” murder, and the ten year minimum sentence that goes with it.   I consider that there were aggravating features in your actions which place your culpability above the standard murder datum point of ten years.  I have already referred to you being motivated to hide your wrongful actions from the police.   Although this is not specifically mentioned in s 9(1) of the Sentencing Act as an aggravating feature, it is, in my view, just the sort of feature that I should properly take into account.

[64]     I also consider that the level of brutality you showed was more than would be regarded as standard in relation to a murder, in that you committed a number of deliberate  actions  in,  first,  punching  Liberty,  then  trying  to  strangle  her,  then dragging her to the water, and then placing her in the water face down.  There was a particular callousness in those last actions, and I note that cruelty in itself is an

aggravating feature under s 9(1)(e) of the Sentencing Act.  I consider that your action in pulling off Liberty’s clothes to expose her added further to your culpability.   I treat it as a further aggravating factor, rather than as a separate issue for sentence as suggested by the Crown.

[65]     It is necessary, then, in the light of these aggravating factors, to consider what uplift from the ten years minimum term is appropriate.  I have been assisted by the case  of  Broughton,  where  the  facts  had  some  similarities  to  the  present.    The offender there was, as in your case, 14 years-old.  He attacked a tourist in a darkened street as she returned home.  He struck her once with a baseball bat on the left side of the face, and then when she was lying on the ground he struck her again on the front of her face.  The blows killed her.  And in an aspect that has some real similarity to your offending, he re-arranged and tore at her clothes to expose her.  He then left the scene taking her handbag.  That case also involved an entirely unprovoked attack on a defenceless and innocent person, with the aggravating features of a decision to rob the victim.   The judge in that case found that there was a sexual element in the deliberate interference with the clothing.  In that case the minimum term was fixed at

13 years.  Your attack on Liberty was more prolonged than that in Broughton, but there was, in your case, no element of burglary or sexual intent, and not the element of lying-in-wait premeditation that could be seen as features in that case.

[66]     So, I turn to my overall assessment.  I have concluded that a significant uplift on that ten year minimum term is required to reflect the intention to avoid a crime, the callousness of your actions, and Liberty’s vulnerability.  I take into account the extensive harm your actions have caused so many people.

[67]     I conclude that in relation to your culpability for the actual offending, the appropriate starting point is 13 years’ imprisonment.

[68]     I turn now to assess the aggravating and mitigating factors that relate to you personally.  The first issue is remorse.  Any expressions of remorse on your part now must  be  viewed  in  the  light  of  the  fact  that  you  defended  these  charges unsuccessfully, and that you gave different stories to the police and then, the jury has found, lied when you gave your evidence.

[69]     However, I do note that you were always prepared to plead guilty to a charge of manslaughter.  In your probation report this statement by you is recorded by an experienced probation officer:

I know it was wrong.   I feel scared and sad.   I did not think I could do something like that.  I am very sorry to her family and her friends for what I have caused them.   I am very sorry to my family and everybody else for what they are going through.  I did not mean to do it, but it is done.  I just have to do my time.  Nothing like this will ever happen again.  I am sad and sorry I did that.  I am scared of what is going to happen to me.  I still have nightmares about what I did.  I sometimes pray for her and her family and that she is alright in heaven.  I am sorry for the grief I caused her family.

The probation officer was impressed that you were genuinely remorseful.

[70]     Judges are faced all the time with last minute expressions of remorse just prior to sentencing, which often involve no more than regret that the offender is now facing a term of imprisonment or worse, feigning remorse.  However, I accept what the probation officer says, that your statement shows at least some sincere remorse.  I note that it has been explained that the apologies you and your family wished to give to the Templeman family were not sent on the advice of your lawyer who was concerned that they might damage your defence.

[71]     In all the circumstances, I conclude that you do feel some genuine remorse for having killed Liberty, although you have not faced the fact that your actions were deliberate and that you had a murderous intent to kill Liberty.  In the end I can give little weight to your expressions of remorse, given your vigorous defence and what you have said to exculpate yourself.  But I do not discount it entirely.

[72]     Before I leave this topic, as an aside, I record that your parents co-operated with the police investigation.  While showing total support for you, as they still do and as they have to, they have acted with honesty throughout.   They have shown integrity and dignity when faced with your terrible action, and the ordeal that has followed.  There are further ordeals ahead of them.

[73]     I also  note  that  the  probation  officer  reports  that  you  had  no  history of violence at school or otherwise, and that you were, if anything, rather shy and had some difficulty in relating to people.  Clearly you have shown no tendency towards

violence.   It seems that when faced with a situation of confrontation you have a tendency, if anything, to withdraw.  So, I am obliged to weigh your character in the assessment process.  In doing so this is tempered by the fact that you were only 14 at the time and have hardly had time to display a developed character.  Nevertheless, insofar as it goes, I accept that your terrible action was out of character.   This is confirmed, as I have already indicated, by the professional reports that have been prepared in the 18 months in which you have been in custody, which indicate that you are, in their assessment, a person who shows no tendency towards violence and, if anything, has a tendency to withdraw from the reality of what is happening around you.

[74]     The primary factor that I have got to take into account in assessing you as an offender  is  your  youth.    Of  course,  it  has  been  said  that  in relation  to  murder convictions the weight that can be given to youth must, in terms of the percentage deduction of the minimum term, generally be less than deductions given to the end sentence in other offending.   The gravity of the offending when there has been a murder, and the existence of the minimum term means that different considerations apply to an assessment of discount for youth.

[75]     In most sentencing decisions the amount of the discount for youth is not stated in a specific figure.  In Broughton, the case I have already referred to, a one year discount for youth was allowed.  Here in addition to youth there are the features I have referred to.   In particular, your actions being out of character.   It is also relevant that, as I have said, an overview of all the material shows that you were if anything young for your age in terms of maturity, and remain so.

[76]     Taking all these factors into account I propose applying a discount of a-year- and-a-half to the 13 years.  This means that you are left with an end sentence of 11 and-a-half years’ imprisonment as a minimum term.  As I have said, I have already taken into account the indecent assault and do not propose adding any extra sentence for that.

[77]     Could you stand up please Mr Kriel.  I sentence you to life imprisonment for the murder of Liberty Templeman.  I fix a minimum term of imprisonment that you

must serve of 11 and-a-half years.  For the reasons I have already set out I am of the view that you are quite young for your age, and that is a factor I mention in terms of where it may be decided you should serve your period of imprisonment while you remain a young person.

[78]     In relation to the indecent assault count, you are sentenced to a term of six months’ imprisonment, that term to be concurrent.

[79]     I thank those in the public gallery for the dignity and restraint they have shown while sitting through these court proceedings and hearing about these terrible events.

[80]     Stand down please Mr Kriel.

…………………………… Asher J