R v Kriel HC Whangarei CRI 2008-027-2728

[2010] NZHC 345

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] )

L Langridge, Barrister, Auckland ([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

[1] R v Howse [2003] 3 NZLR 767

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

of murders[3] warranting only a ten year term.   The court must assess the presence or

[3] At para [52].

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.

[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).

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

I also compare your case to that of R v Cameron,[7]  where the offender targeted the

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

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.

[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

[8] R v Little [2007] NZCA 491

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.

[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]

[9] At para [67].

… 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.

[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

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

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]

[12] At para [56].

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.

[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.

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

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

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.

[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]

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

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

More than a ten year minimum term?

[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