R v Lewis

[2018] NZHC 1877

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2017-020-003874

[2018] NZHC 1877

THE QUEEN

v

ROSIE PAIGE LEWIS

Counsel:	S B Manning for Crown M J Phelps for Defendant
Sentence:	27 July 2018

NOTES ON SENTENCE OF COLLINS J

Introduction

[1]Ms Lewis, you appear for sentence on the following charges:

(1)murder;1 and

(2)aggravated robbery.2

[2]You pleaded guilty to these charges on 29 June 2018.

1      Crimes Act 1961, ss 167(a) and (b) and 66(1) and (2); maximum penalty life imprisonment.

2      Sections 235(a) and 66(1); maximum penalty 14 years’ imprisonment.

R v LEWIS [2018] NZHC 1877 [27 July 2018]

[3]This afternoon I will:

(1)set out your offending;

(2)discuss the victim impact statements;

(3)explain why a sentence of life imprisonment would not be manifestly unjust;

(4)determine the appropriate minimum period of imprisonment (MPI); and

(5)give you your final sentence.

Your offending

[4]        The deceased, Mr Dhiman, was a 30-year-old Indian man, whom you met through Tinder.

[5]        On 16 December 2017, you told a female friend that you and your “cousin” were planning to take an Indian for a drive and kill him.   You  were referring to     Mr Karauria, the co-defendant, as your cousin.

[6]        On 17 December 2017, Mr Karauria sent a text message asking if you were going to take Mr Dhiman’s vehicle. You replied that you were.

[7]        Later, at about 3.30 pm on 17 December 2017, Mr Dhiman picked you and your female friend up and drove you to a liquor store in Napier. When he went into the store you and Mr Karauria continued to discuss through text messages, your plans. Mr Dhiman then drove to another store. While he was inside, you told your female friend that you wanted Mr Dhiman’s vehicle and that you were going to use him and kill him with Mr Karauria.

[8]        At about 4.00 pm, Mr Dhiman then drove you both to his address and cooked you a meal. You also drank alcohol. During this time, you continued to exchange

texts with Mr Karauria. He messaged asking if you were serious about this, and you replied that you were. You then sent a further message to Mr Karauria confirming that you were keen to proceed and encouraging him to get Mr Dhiman’s phone and wallet. Mr Karauria then proposed that you would get Mr Dhiman to drive out to Tūtira and then you would go for a walk.

[9]        At this stage, your text messages escalated in terms of gravity and intent. You messaged that you should run Mr Dhiman over, or Mr Karauria should smash him up, then ditch him. Mr Karauria agreed to the latter course and indicated that he would bring a pole with him. You then suggested stabbing Mr Dhiman to make sure he could not get back. Mr Karauria agreed and said that he would bring a butcher’s knife with him. You then emphasised the need to ensure that Mr Dhiman would not be able to get up, then you double checked to make sure Mr Karauria was up for it.

[10]      At about 5.30 pm, Mr Dhiman drove you home. On the way, you picked up Mr Karauria. You also picked up another male associate. Mr Dhiman then dropped you all off at your female friend’s address, where you continued to plan your offending.

[11]      At about 7.30 pm, you messaged Mr Dhiman and asked for a ride for your “nephew”. He agreed. At about 8.00 pm, Mr Karauria sent a text message asking if you were “still doing it”. You replied saying you were.

[12]      At about 8.30 pm, Mr Dhiman picked you and Mr Karauria up along with the other male associate.   During the ride,  you continued to send text messages to     Mr Karauria.   At one point, he sent a message saying that he was going to stab     Mr Dhiman for touching you. You replied that Mr Dhiman had tried to kiss you. You instructed Mr Karauria to tell Mr Dhiman to go for a walk. Mr Karauria then said he was going to stop at the gorge, stab Mr Dhiman and throw him over the cliff. You replied saying “not until you get the keys”.

[13]      You managed to convince Mr Dhiman to drive to Tūtira, which is approximately 40 minutes from Napier. You arrived at a secluded location on Matahorua Road sometime after 9.00 pm. Mr Karauria left the vehicle and walked up

an unsealed driveway to a disused stock building, out of sight of the vehicle. You told Mr Dhiman to go talk with Mr Karauria. Mr Dhiman then followed Mr Karauria and you remained in the vehicle with the other male associate.

[14]      Mr Karauria stabbed Mr Dhiman’s back, throat, heart and chest. He stabbed with such force that the knife broke off its handle and fell onto the ground. Mr Dhiman was stabbed a total of nine times. Mr Karauria threw the handle of the knife onto the ground several metres away from the  road  and  returned  to  the vehicle, leaving  Mr Dhiman behind.

[15]      Mr Dhiman managed to stagger back to the road where he was met with the other male associate. Mr Dhiman cried for help before collapsing on a grass verge near the vehicle. Mr Karauria approached Mr Dhiman and kicked him in the head and stomped on his face  and  head  multiple  times.  He  continued  until  he  thought  Mr Dhiman was dead. Then he instructed the male associate to search Mr Dhiman’s pockets.

[16]      As Mr Karauria was about to drive off, you noticed that Mr Dhiman was not dead and said words to that effect to Mr Karauria. He reversed the vehicle and returned to stomp on Mr Dhiman’s head again.

Victim impact statements

[17]      Mr Dhiman’s mother is dismayed with your crime. She has found it difficult to come to terms with the fact her son died for so little gain, and for your selfish desires. She was heartbroken reading through your text messages, knowing that you planned to kill her son and that it was not just some random act of violence. She finds it particularly difficult to understand how you could so mercilessly point out that her son was still alive, so that Mr Karauria could finish him off. She experiences self-blame because of what you did. She says that her son was a cheerful and happy person, who left a positive impact on everyone around him and who loved life. She had the awful experience of finding out about her son’s death on what would have been his birthday. She is devastated, and says that she can no longer live an ordinary life, as her son’s death will haunt her every day. She has not been able to sleep and avoids talking to people.

[18]      Mr Dhiman’s father cannot express in words the shock he felt when he found out his son was dead. He says that the pain is unbearable and that you have robbed him of his life as well as of his son’s. He says they were a close family and that his son’s death has left a hole in their lives. He describes how he has retreated from social life and how his family can no longer bear celebrating the Indian festival of Diwali, without his son. He says that at least 3,000 people attended his son’s funeral, and many people he spoke to had a story about how his son helped them at some stage of his life. He talks about how he has worked and saved his whole life to give a better life to his children, and now that is for nothing because his son is gone.

[19]      Mr Dhiman’s brother talks about how he has lost his friend from childhood. He does not understand why anyone would want to kill his brother, who had no enemies and had never done anything bad to anyone. He recounts how he had to identify his brother’s body, and how his brother’s face was not peaceful, but covered in blood and bruises. He could imagine the pain that his brother went through. That image has stayed with him to this day. He then recounts how he had to tell his parents that their son was dead. He prays that no one should ever have to do such a thing. He struggles to understand how someone could be so cold and he is angry at you for what you did.

Life imprisonment is not manifestly unjust

[20]      Ms Lewis, there is a presumption in favour of life imprisonment for offenders convicted of murder.3 A sentence other than life imprisonment will only be given where a sentence of life imprisonment would be manifestly unjust given the circumstances of the offence and the offender. This exception will only apply in very rare circumstances.4

[21]      Your case clearly does not fit into that category. I note that Simon France J reached the same conclusion in relation to your co-offender, Mr Karauria.5 Accordingly, you will be sentenced to life imprisonment.

3      Sentencing Act 2002, s 102.

4      R v Mayes [2003] 1 NZLR 71 (CA); R v Rapira [2002] 3 NZLR 794 (CA); and R v Smail [2007] 1 NZLR 411 (CA).

5      R v Karauria [2018] NZHC 1184 at [8].

[22]      The main question is the appropriate minimum period of imprisonment that you should serve.

Minimum period of imprisonment (MPI)

[23]      The minimum period must be at least 10 years in all circumstances.6 In certain circumstances, an MPI of 17 years or more must be imposed unless it would be manifestly unjust to do so.7 The following three of those circumstances apply in your case:

(1)Murder involving calculated lengthy planning8 – The murder was not spontaneous, it was the result of an afternoon and evening of detailed and prolonged planning. You also discussed your intention with a friend the previous day.

(2)Murder committed in the course of another serious offence9 – The murder occurred in the course of an aggravated robbery. In fact, your primary purpose was to obtain Mr Dhiman’s vehicle.

(3)Murder committed with a high level of brutality, cruelty, or callousness10 – The murder involved nine stabbings, with significant force. Mr Dhiman was left to die, but managed to stagger back to the vehicle where he called out for help. His head was then stomped on, on two separate occasions. Not only did you stand by, fully aware, and do nothing, you actively alerted Mr Karauria that Mr Dhiman was still alive so he could return to inflict further violence. Mr Dhiman experienced a slow, violent and painful death. Your actions displayed complete contempt for his life and a total lack of humanity, that is to say, you displayed callousness.11

6      Sentencing Act 2002, s 103(2).

7      Section 104(1).

8      Section 104(1)(b).

9      Section 104(1)(d).

10     Section 104(1)(e).

11     See R v Frost [2008] NZCA 406 at [36].

[24]      The Court of Appeal has explained the proper approach for determining the MPI for murder in cases such as yours.12 I am to begin by assessing your degree of culpability by taking into account the factors I have mentioned alongside your personal circumstances. If I conclude that an MPI of less than 17 years is appropriate despite that, then I must consider whether it would be manifestly unjust to impose an MPI of 17 years.

Starting point for MPI

[25]      The Court of Appeal in Baker v R recognised that an MPI higher than 17 years would be appropriate where three distinct factors outlined in s 104 of the Act applied.13 That is the case for your offending.

[26]      The Crown submits that a starting point around 17 or even 18 years would be appropriate for the MPI. To ensure consistency in sentencing,14 I observe that 17 years was considered appropriate as a starting point for Mr Karauria.15 That starting point is also consistent with other cases.16

[27]      The Crown submits that you should be held equally culpable with Mr Karauria because you instigated the offending, were heavily involved in its planning, instructed Mr Karauria on several occasions and because it would not have happened without you. The Crown relies on two Court of Appeal decisions:

(1)In R v Cuthers, two co-offenders were given the same MPI for murder on appeal.17 One offender was referred to as the “brawn”, while the other was referred to as the “brains”. They entered the victim’s house together, intending to steal property. The brawn delivered a severe beating to the victim, which resulted in his death. The Court of Appeal found that there was no justification for distinguishing the two offenders because the brains was the “driving force in respect of all the

12     R v Williams [2005] 2 NZLR 506 (CA) at [52]-[54].

13     Baker v R [2007] NZCA 277 at [23].

14     Sentencing Act 2002, s 8(e).

15     R v Karauria, above n 5, at [10].

16     R v Rewha-Te Wara HC Hamilton CRI-2010-019-5681, 30 September 2011; and R v Lavemai

[2014] NZHC 797.

17     R v Cuthers [2015] NZCA 366.

events of that day” and he “intentionally encouraged [the brawn] to inflict the blows”.18

(2)In Uhrle v R, a female offender rounded up three male co-offenders, knowing they were armed, and drove them to the victim.19 The three male offenders attacked the victim, while the female offender left the scene and was not present when the fatal wounds were inflicted. The Court of Appeal upheld a two-year distinction between the female offender and her male co-offenders, although it noted that this was a generous allowance.

[28]      While both of these cases are analogous to your role in some respects, neither adequately captures your particular level of culpability. You were not the party who actually committed the physical acts of killing Mr Dhiman. This should be reflected in your sentence. It is also fair to recognise that many of the gratuitous acts of brutality carried out by Mr Karauria probably went beyond your plan. This distinguishes you from R v Cuthers, where the “brains” appears to have been complicit in both the planning of the offence and the extent of the brutality (through his encouragement).

[29]      However, this does not detract significantly from your culpability, as you could fairly be described as the driving force, much like in R v Cuthers. While I would not go so far as to say you manipulated Mr Karauria, it is clear that you were providing him with direction. Having said that, Mr Karauria also contributed to the planning, and appears to have acted of his own accord on several occasions, so it would be too far from the mark to call you the “brains” of the operation.

[30]      Equally, however, your relative culpability is greater than that of the female offender in Uhrle v R. Although you were out of sight during the initial attack, you remained a party to the murder throughout and continued to provide encouragement and even incited further violence after the offending had escalated in brutality.

18     R v Cuthers, above n 17, at [73]-[74].

19     Uhrle v R [2015] NZCA 412.

[31]      Nevertheless, all of this provides a point  of  distinction  between  you  and Mr Karauria. I am satisfied that 16 years is an appropriate starting point for your MPI.

Adjustments for personal circumstances

[32]You have no previous convictions.

[33]      The sentencing report identifies you as being at a low-risk of reoffending, but that your risk might increase if you fail to address your rehabilitative needs. The violent nature of your present offending indicates a high-risk of harm to others.

[34]      The report identifies the key factors contributing to your offending as your substance use, your anti-social associates, and your lack of consequential thinking. You were unable to explain the text messages you sent and it is apparent that you acted without considering the consequences of what you were doing. You said that you did not care about anything at the time. There are indications you might regret your offending, having said that you were “traumatised about this stuff”.

[35]      You were raised by your great grandmother and grandfather as part of a Māori tradition. They died in 2013 and 2014 respectively.  Their deaths appear to have had a huge impact on you. In 2014, around the age of 14, you began consuming alcohol, methamphetamine, synthetic cannabis and marijuana. You also appear to have been diagnosed with ADHD as a child.

[36]      These observations are now confirmed by psychological and psychiatric reports, as well as hospital admission notes that were compiled in 2013.

[37]      The information in the medical reports and file shows that you have encountered a number of difficulties in your life, including attempts at self-harm. You have been diagnosed as having a low range of intellectual functioning and, in 2013, you were found to have an IQ of just 69, which is just below the statutory level for a diagnosis of intellectual disability.20

20     Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, s 7(3)(a).

[38]      To compound matters, not long prior to your offending you were living with a much older man, a gang member in Hamilton. He was violent towards you. You had to escape and on 4 December 2017, prior to the murder of Mr Dhiman, you were seeking protection in a women’s refuge.

[39]The following personal mitigating factors apply in your circumstances:

(1)Age21 – you are now only just 18 years old, and were 17 years old at the time of this offending.

(2)Guilty plea22 – you pleaded guilty six months before the set trial date.

(3)Psychological and intellectual challenges – your upbringing appears to have been difficult and the death of your caregivers has obviously instigated your substance abuse. You also appear to lack mature reasoning capabilities, which likely played a role in your offending, a conclusion which is consistent with your low IQ.

[40]      In the circumstances, I would be prepared to give discounts similar to those given by Simon France J to Mr Karauria. Those were two years to recognise your youth, and three years to recognise your psychological health issues and intellectual challenges. That results in an appropriate MPI of 11 years.

Manifestly unjust exception

[41]      Given the conclusion I have just reached, it is necessary for me to consider whether it would be manifestly unjust to impose the 17-year MPI required by s 104 of the Act. The Court of Appeal has explained that powerful mitigating factors will be necessary to displace the 17-year presumption, and a guilty plea by itself will not ordinarily be enough.23

21     Sentencing Act 2002, s 9(2)(a).

22     Section 9(2)(b).

23     Malik v R [2015] NZCA 597 at [32].

[42]      Nevertheless, the Crown acknowledges that your particular combination of personal mitigating factors is sufficient to displace the presumption. I agree with that conclusion, in particular because you are now only 18 years old. Accordingly, you will be given the MPI I have just indicated.

Result

[43]Ms Lewis, please stand.

[44]I am sentencing you to life imprisonment for murder with an MPI of 11 years.

[45]      I am also sentencing you to three years’ imprisonment for aggravated robbery. That sentence is to be served concurrently.

Stand down.

D B Collins J

Solicitors:

Crown Solicitor, Napier