R v M
[2022] NZHC 1867
•29 July 2022
INTERIM ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT
PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-227-1
[2022] NZHC 1867
THE QUEEN v
M
Counsel: M B Smith for Crown
R M Mansfield QC and T J Buckley for Defendant
Sentenced:
29 July 2022
Charge:
Murder
Plea:
Not Guilty
SENTENCING NOTES OF BREWER J
Solicitors/Counsel:
Marsden Woods Inskip Smith (Whangarei) for Crown Ron Mansfield QC (Auckland) for Defendant
R v M [2022] NZHC 1867 [29 July 2022]
Introduction
[1] Mr M, I have to sentence you for the murder of Bram Willems. This is going to take me some time because you are not the only audience I am talking to. I am talking to Mr Willems’s family, to your whānau, to the lawyers and, very likely, to other Judges.
[2] You have just heard victim impact statements from members of Mr Willems’s family. Their grief, anger and disbelief are completely understandable. They have lost a beloved son and brother because you killed him with the knife you carried when you went out, and with murderous intent. They will carry the loss of Mr Willems with them for the rest of their lives. This sentencing will focus on you, because it is about what will become of you. But we are here only because you murdered Bram Willems, and that is the context for all that follows.
[3] You have listened to the submissions on your behalf by Mr Mansfield QC. They are a brief summary of his 55 pages of written submissions which I have studied closely. Those submissions are backed up by reports on you, which I have also read carefully. There is the cultural report from Mr Mendes, the psychological report from Professor Ian Lambie, the psychiatric report from Dr Armstrong, and the pre-sentence report from the Department of Corrections. I have also read numerous letters from people who have known you for most of your life which all say great things about you. I have seen your Kingslea School Individual Learner Report. Finally, I have read your mother’s letter to me and your own letter.
[4] All the submissions, references and reports are to the effect that you are a kind and caring young man whose behaviour changed for the worse after your parents separated in 2019. You began to associate with undesirable company and adopted what have been called “gangsta” habits. I am told that any form of imprisonment would be unduly harsh on you and that a life sentence would be actively harmful.
[5] The Crown’s submission is that the law requires me to sentence you to life imprisonment with the statutory minimum period of imprisonment of 10 years.
[6] Mr Mansfield submits you should receive a prison sentence of five to six years so you will be released from the Youth Justice facility by the time you are 18 years old and so you will avoid the damage that can occur to a young offender who is put into the adult prison system.
[7] The point I make now to you and to everyone in the courtroom is that I will sentence you in accordance with my view of what the law requires. There is no emotion in that for me. I know that no sentence I can impose will somehow make up for Mr Willems’s death. That is impossible. Equally, I know that I cannot sentence you solely on what the experts think are your best interests. I have to follow the law, and the law puts your best interests as a factor to be considered in the overall sentencing exercise, but they are not the dominant factor when the crime is murder.
The facts
[8] First, I will outline the facts as I find them to be having presided over your trial. I must sentence you on my view of the facts so long as it is consistent with the jury’s verdict. Where I express a decision on the essential elements of the offence of murder, it is to the criminal standard of proof. That is to say, I have reached my decision on the basis of proof beyond reasonable doubt.
[9] Bram Willems was 22 years of age when you two met. From the evidence I heard, he was socially awkward and quite childish. He was comfortable “hanging out” with you who was six years younger. On the first occasion you met Mr Willems he supplied you with alcohol and cannabis.
[10] About two weeks later, following some texting between you, you took your younger cousin, “I”, to meet Mr Willems and see his new car. You took with you your knife. Apparently, at this time, you habitually took your knife with you when you were going out. “I” took his knuckle dusters.
[11] The three of you met up at about 12.45 pm on 7 January 2021. Mr Willems bought alcohol, quite a lot of it, and you and “I” began to share it with him. Mr Willems also bought cannabis and he shared that with you. Later, you were joined
by your young female cousin, “O”. There was a lot of driving around, in the course of which you picked up another cousin, “C”, at the Roadrunner Tavern.
[12] At a late point in the evening you were all at Opua Wharf. Security footage shows the four of you socialising on the wharf. There was no apparent animosity at that stage, although I did notice that whereas you and your cousins were obviously comfortable with each other, Mr Willems was a bit apart.
[13] The next significant moment is at about 10 pm when the car stopped in Kawakawa. You all got out. What happened was recorded on security footage and on an audio recording. Clearly, relations between you and Mr Willems had broken down. I am satisfied that Mr Willems had said something or acted inappropriately towards “O” which made you angry. I do not accept that you were frightened of Mr Willems. You knew he had a work knife on him but the security footage and audio recording of what happened at Kawakawa show you were very aggressive and angry and that Mr Willems was largely conciliatory. You threatened to kill Mr Willems with your knife. He told you he respected you and, in effect, he apologised for anything he had done. Your cousins were actively trying to calm you down. You all got back into the car when a bystander said the police had been called.
[14] At this point Mr Willems was supposed to drive you back to the Roadrunner Tavern. There was still hostility in the car between you and Mr Willems. The car stopped for a time at the local high school where there was a further bout of arguing. Mr Willems then drove the car towards the Roadrunner Tavern. He was acting stupidly. He drove too fast and “O”, in particular, was scared. When he was asked to slow down, he drove for a period at an exaggerated slow speed of, say, 10 kmh. However, (and this shows Mr Willems’s attitude at the time) at one point he stopped on request to let “C” get out to urinate, he waited for “C”, and once “C” got back into the car he continued to drive towards the Roadrunner Tavern.
[15] When you all arrived at the Roadrunner Tavern, “O” was clearly upset. She ran off and sat nearby. Everybody got out of the car and you, “C” and “I” confronted Mr Willems. He suggested that he should go over to “O” to apologise. It was made very clear to him that that was not wanted by you, and he should leave. However,
Mr Willems did not simply get in the car and drive off as any sensible person would have done in that circumstance. Further, the evidence is that he had his knife in his hand. He was not displaying it aggressively but, rather, had it in the raised palm of his hand. “I” said in evidence, and you agreed with him in evidence, that “I” urged you to take out your own knife, which you did. I am sure that you were very angry with the way Mr Willems had acted and in particular with the distress he had caused “O”.
[16] You gave evidence that Mr Willems appeared to lunge or move forward towards you and that, in fear and in self-defence, you lashed out with your knife. I do not accept that. I am sure that you got to the point in the argument where, intoxicated and very angry, you attacked Mr Willems.
[17] There is evidence from an adult female witness, Ms Richardson, who lived in a house up the hill behind the Roadrunner Tavern. She could not see what was happening but she could hear the tone of the voices and some of the words. She said that one of the voices she could hear was so angry and aggressive that it made her fearful even at that distance. The other voice seemed to be conciliatory. I have no doubt, from the incident at Kawakawa, that yours was the angry and aggressive voice and that Mr Willems’s voice was the conciliatory one.
[18] I also consider that the way you attacked Mr Willems showed your angry and aggressive intent. You stabbed Mr Willems seven times in the chest and abdomen area and cut him once in the chest. Mr Willems went down to the ground and you stabbed him six more times in the lower back and buttocks. One of those wounds was delivered with such force that your knife pierced his pelvic bone. One of the chest wounds was fatal. You received only a minor cut to your hand. I cannot say whether that was a slip by you on your knife or an injury from Mr Willems’s knife.
[19] I do not find that you attacked Mr Willems with the intention of killing him. I think you just exploded with anger and started stabbing. However, I am sure that you had a conscious appreciation that what you were doing might very well kill Mr Willems and you carried on anyway. Your threat to Mr Willems at Kawakawa is relevant to that. This was not a case of excessive self-defence.
The law
[20] The law is that you must be sentenced to imprisonment for life unless, given the circumstances of the offending and your circumstances, a sentence of imprisonment for life would be manifestly unjust.
[21] Mr Mansfield submits that because you were 14 years old at the time of the offending, that alone makes a sentence of life imprisonment manifestly unjust. But, of the 18 or so cases referred to me involving young persons, in only one was a life sentence not imposed. That was in respect of a 13 year old who shot a woman in circumstances very unlike your case.1 Mr Mansfield goes on to submit that your personal characteristics, including your upbringing, a possible diagnosis of PTSD and the likely effect on you of a lengthy term of imprisonment, add to the argument that a life sentence would be manifestly unjust.
[22] I have considered Mr Mansfield’s submissions and all of the reports. I have also thought about s 9 of the New Zealand Bill of Rights Act 1990 which provides that every person has the right not to be subjected to disproportionately severe treatment or punishment. The New Zealand Supreme Court2 has recently applied that provision to the consideration of cases where defendants are subject to the three strikes legislation. It might be, as Mr Mansfield predicts, that Judges in higher courts than mine will change the law and reinterpret Parliament’s intent on sentencing for murder. But that is not for me. The decision which I think sets out the principles currently applicable under New Zealand law, and which are binding on me, is the decision of the Court of Appeal in R v Rapira.3 These are the relevant principles I derive from that case:
(a)Youth is not an unusual feature of offences of serious violence. It can have little weight when balanced against the public interest in denunciation and responsibility for offending.4
1 R v Nelson [2012] NZHC 3570.
2 Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551, (2021) 12 HRNZ 739.
3 R v Rapira [2003] 3 NZLR 794 (CA).
4 At [121].
(b)The assessment of manifest injustice has to be undertaken against all of the sentencing purposes and principles identified in the Sentencing Act. It is a conclusion likely to be reached in exceptional cases only, as the legislative history of s 102 suggests was the expectation.5
(c)While youth is a factor properly to be taken into account in sentencing, it is part only of a wider public interest.
(d)There is no legislative restriction on a sentence of life imprisonment on a young person who is criminally responsible. The presumption expressed by s 102 is legislative identification of the public interest in maintaining life imprisonment as the standard response for murder unless such response is manifestly unjust. Youth of itself could not be a sufficient reason to make life imprisonment manifestly unjust if the offender had the necessary intent or knowledge of consequences to be guilty of murder, in the absence of a statutory direction to that effect.6
(e)The response of a young offender to a sentence of imprisonment and the changes brought about by his or her developing maturity can be considered at an earlier stage by the Parole Board. In the case of a young offender sentenced to life imprisonment, use of the power under s 25 of the Parole Act 2002 for early consideration of parole may be appropriate where, through developing maturity and positive response to correction, the 10 year non-parole period ought to be reconsidered in the interests of justice.
[23] Mr M, I accept that your murder of Mr Willems occurred without premeditation and while you were disinhibited through being intoxicated by the alcohol and cannabis supplied to you by Mr Willems. I accept also that your anger towards Mr Willems was caused by your perception of how he was acting over the course of the later part of your evening together, particularly towards “O”. I accept
5 At [121].
6 At [123].
also the evidence of the experts on the neurological aspects of adolescent brain development that lead to impulsive risk taking and lack of thought of consequences.
[24] I also take into account that you had a very good upbringing with loving and involved parents. Your troubles began when they separated and, at around the age of 12 years, you began to associate with negative peers and develop the symptoms of a troubled adolescent. That is what caused your father to put you with your aunt after an incident where you took your mother’s car and were absent for four days. There is no exceptional mental health condition or other impairment which can be said to be causative of your offending.
[25] Of course, your interests must be taken into account. But you also have to be held accountable for the harm done to your victims (which includes Mr Willems’s family) and the community by your offending. The interests of the victims have to be provided for. There is a need to denounce your conduct (which includes carrying a knife as a matter of routine) and to deter you and others from committing the same or similar offences.
[26] In short, having considered the circumstances of your offending and your personal circumstances, I do not find that the statutory presumption that a sentence of life imprisonment follows the crime of murder has been displaced. On the other hand, I have decided that your personal circumstances mean that the statutory minimum period of imprisonment should not be increased.
[27] A sentence of life imprisonment need not be a crushing one. If you show the Parole Board that you are not a threat to the community and that you have grown to understand your situation, then you will be released on parole. The sentence of life imprisonment would only be called upon in the future if you were to reoffend. It is a protective measure for the community in that regard. Further, although the statutory minimum non-parole period is 10 years, as the Court of Appeal said in Rapira, there is provision in exceptional cases (and yours might very well turn out to be one) where parole can be considered at an earlier time. That is an incentive for you.
Sentence
[28]Mr M, please stand.
[29] I sentence you to life imprisonment. The minimum statutory non-parole period of 10 years will apply.
[30]You may stand down.
Brewer J
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