R v Maa
[2021] NZHC 1855
•22 July 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-004-3127
[2021] NZHC 1855
THE QUEEN v
JIANN-HWA MAA
Hearing: 10 June 2021 Appearances:
R McCoubrey and S Murphy for the Crown K-A Stoikoff and R Smith for the Defendant
Judgment:
22 July 2021
JUDGMENT OF GAULT J
This judgment was delivered by me on 22 July 2021at 3:00 pm Registrar/Deputy Registrar
……………………………………
Solicitors:
Mr R McCoubrey and Ms S Murphy, Meredith Connell, Office of the Crown Solicitor, Auckland Ms K-A Stoikoff and Ms R Smith, Public Defence Service, Auckland
R v MAA [2021] NZHC 1855 [22 July 2021]
[1] On 2 June 2021, Mr Maa pleaded guilty to a charge of murder of Mr Zion Gutnik at Epsom on 9 March 2020.
[2] Mr Maa accepted a summary of facts but maintains that he did not intend to kill Mr Gutnik, but rather meant to cause him bodily injury that he knew was likely to cause death, and was reckless as to whether death ensued. That is, Mr Maa was pleading guilty to murder on the basis of s 167(b) of the Crimes Act 1961, rather than s 167(a). While Mr McCoubrey for the Crown suggested the issue may be more a matter of inference and submission than true disputed fact, Ms Stoikoff for Mr Maa sought a disputed facts hearing on the basis that intention is a disputed fact. Mr McCoubrey did not oppose and I accepted that one should take place.
Agreed facts
[3] 574 Manukau Road, Epsom is well-established as a club used by sex workers to meet and entertain their clients. Several managers organise the daily business on behalf of the proprietor, Ms Li. Those managers work a daytime shift from 10:00 am to 7:00 pm or an evening shift from 7:00 pm, typically ending around 3:00 am the following morning. Mr Maa and Mr Gutnik were two of the managers. Mr Maa resided onsite in a sleep-out adjacent to the main building one or two nights a week, while Mr Gutnik travelled to work his shifts from his apartment in central Auckland. Mr Maa typically worked during the daytime while Mr Gutnik worked during the evenings. The relationship between Mr Maa and Mr Gutnik was a strained one and on at least one occasion in December 2019 deteriorated to a physical altercation between the pair.
[4] At 12:30 am on 10 March 2020, Police were called to 574 Manukau Road. A quantity of blood had been located on a wall in the lounge area and Mr Maa and Mr Gutnik, who were rostered to work the shifts that day, were both missing. Mr Maa was working the day shift and Mr Gutnik was working the night shift.
[5] During a subsequent Police search looking for the missing managers, entry was forced to the sleep-out. The door was jammed, but not locked. Upon entering the sleep-out, Mr Gutnik’s body was discovered. His head and upper torso had been concealed inside a black plastic rubbish bag. When Police opened the plastic bag, they
discovered he had sustained significant head and facial injuries which made a visual identification impossible.
[6] During the following days the detectives and other experts conducted a detailed scene examination. Surveillance camera footage was also obtained and revealed that Mr Maa arrived at 574 Manukau Road at 6:09 pm on 9 March 2020. Mr Gutnik arrived at 7:13 pm.
[7] The main seat of activity was confirmed to be the lounge where the blood had been observed and reported to Police. The evidence indicates that Mr Maa struck Mr Gutnik from behind shortly after his arrival at the premises. The scene examination revealed a sustained attack had occurred in the lounge with Mr Gutnik having been struck numerous times with a weapon about his face and head. Mr Gutnik’s injuries included defensive wounds but ultimately the massive head injuries he sustained were not survivable. He died at the scene over a period of about 35 minutes. There were 29 separate and distinct injuries to the head, eight to the neck and two to the torso. His body was then moved to the kitchen whilst Mr Maa commenced a clean-up. Mr Maa finished cleaning the significant amount of blood that was on the floor and then moved Mr Gutnik to the sleep-out.
[8] Inside the sleep-out Mr Gutnik’s body was lying in the middle of the room near the foot of a bed. His bloodstained personal belongings, including a grey bag with a shoulder strap, a bent umbrella, his wallet, including cash and other contents, and a number of his teeth had been bundled into another black plastic bag which had been placed close to where his body lay. Also located by the bedside was a wooden pole, approximately 1.2 metres in length. The pole had evidence of bloodstaining and when examined more closely by ESR they extracted a blood profile that matched Mr Gutnik’s. The pole also had a distinctive number imprinted into its surface which included the digits 0800.
[9] A post-mortem examination of Mr Gutnik confirmed that he had been struck repeatedly about the head and face. The cause of death was determined to be significant blunt force trauma to those areas. Defensive injuries to Mr Gutnik’s hand and forearms were also evident. It was noted during the examination that the numbers
0800 were impressed into his scalp. This corresponded to engravings on the wooden pole. Mr Gutnik’s jaw had been broken and he was missing a large number of teeth. He was subsequently identified from his dental records. A DNA profile extracted from material collected from underneath the left fingernails of Mr Gutnik are a match to the DNA profile of Mr Maa.
[10] On 11 March 2020 Mr Maa visited Ms Li. At some later point, he admitted killing Mr Gutnik.
[11] During the investigation Police released to the media details of a vehicle Mr Maa was believed to be driving and this led to a sighting of Mr Maa by a member of the public on 11 March 2020. When approached by Police for a statement Mr Maa exercised his right to silence.
[12] On 15 March 2020 Mr Maa was located preparing to hang himself in a local park close to where he was residing. Whilst being spoken to by Police in relation to this matter, he disclosed that “something was playing over and over in his head”. He was taken to Te Whetu Tawera and treated there until 22 April 2020. When spoken to by Police on a third occasion on 22 April 2020, Mr Maa stated that Mr Gutnik presented a stick and advanced upon him. Mr Maa claims to have torn the stick from Mr Gutnik’s grasp and used it to strike him to the head. Mr Maa states that he continued to strike Mr Gutnik with the stick multiple times to the face and head area. While Mr Gutnik was on the floor, he observed Mr Gutnik’s body begin to spasm on the floor and further observed blood streaming from Mr Gutnik’s head. When asked why he did not help or seek help for Mr Gutnik, he stated that he thought somebody else would find him. He was unable to provide an explanation as to why he continued to attack Mr Gutnik when he was rendered defenceless.
[13] The agreed facts also included photographs of the areas of interest within the club prepared for treatment with luminol, photographs of Mr Gutnik’s autopsy and of the forensic dental examination.
[14] The interior of the club was covered by CCTV. The system is accessible in an office room at the club. Officers attempted to review the CCTV on 10 March 2020.
They were informed by Ms Li and her son that the CCTV was inaccessible, and that they believed that Mr Maa had changed the password.
[15] Later, an officer watched the footage until it stopped at 11:53 am. From about 9:30 am to 11:53 am Mr Maa was the only one in the club. The last recorded movement shows Mr Maa walking upstairs about 11 minutes before the footage stopped.
[16] A digital forensic technician reviewed Mr Maa’s phone which contained an application designed to work the CCTV. This was last accessed on 9 March 2020 at 2:10 pm and on 11 March 2020 at 3:20 pm. A member of the Police photography team reviewed the hard drive device. She advised it was not possible to tell whether it had been manually turned off or whether there had been some kind of mechanical/electrical fault. The utility company confirmed that there were no power cuts to the Epsom area on that day.
[17] On 11 March 2020 at 6:10 pm Sergeant Cao approached a vehicle and observed a man sitting in the driver’s seat. That man identified himself as Mr Maa. In the car Police located keys to the sleep-out.
Disputed facts
[18] The issue to be determined is whether Mr Maa intended to kill Mr Gutnik or meant to cause him bodily injury that he knew was likely to cause death, and was reckless as to whether death ensued.
[19]In the event, the following key subsidiary issues arose in evidence:
(a)whether Mr Maa initiated the attack by striking Mr Gutnik from behind;
(b)how many blows Mr Maa inflicted to Mr Gutnik’s head;
(c)the severity of the blows; and
(d)Mr Maa’s actions after the assault.
Legal principles
[20] Section 9 of the Sentencing Act 2002 (the Act) requires the Court in sentencing to take into account specified aggravating and mitigating factors. For example, the Court must consider, where applicable, use of a weapon as an aggravating factor.1
[21] Moreover, in cases of murder, s 104 of the Act provides for a minimum period of imprisonment of at least 17 years in certain circumstances, unless that would be manifestly unjust. One such circumstance, in s 104(1)(e), is if the murder was committed with a high level of brutality, cruelty, depravity, or callousness. Mr McCoubrey indicated that the Crown will submit at sentencing that s 104(1)(e) is engaged whether Mr Maa is sentenced on the basis of s 167(a) or (b) of the Crimes Act 1961.
[22] Where a defendant has pleaded guilty but there are disputed facts affecting aggravating or mitigating factors relevant to sentencing, those aggravating or mitigating facts must be proved in accordance with s 24 of the Act. Section 24 provides:
24 Proof of facts
(1)In determining a sentence or other disposition of the case, a court—
(a)may accept as proved any fact that was disclosed by evidence at the … trial and any facts agreed on by the prosecutor and the offender; and
(b)must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.
(2)If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—
(a)the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:
(b)if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the … trial:
1 Section 9(1)(a).
(c)the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate [beyond a reasonable doubt] any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:
(d)the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender's part in the offence:
(e)either party may cross-examine any witness called by the other party.
(3)For the purposes of this section,—
aggravating fact means any fact that—
(a)the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and
(b)the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case
mitigating fact means any fact that—
(a)the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and
(b)the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.
[23]In Archer v R, the Court of Appeal stated:2
[10] It will be seen that the sentencing court must accept as proved all facts essential to a guilty plea or verdict and may accept as proved any fact that was disclosed by evidence at the trial or agreed by the parties, and the prosecutor must prove, or negative as the case may be, beyond reasonable doubt the existence of (a) any disputed aggravating fact or (b) any disputed mitigating fact that (i) relates to the offence or the defendant’s role in it and (ii) is not wholly implausible or manifestly false. A fact qualifies as an aggravating or mitigating fact when the court accepts that it may, if proved, affect the sentence.
[11] Accordingly, the legislation distinguishes between material facts already proved by trial evidence or implicit in the finding of guilt, on the one hand, and material facts the parties may agree or prove for sentencing purposes, on the other. It also distinguishes mitigating facts about the offence or the defendant’s part in it, which the prosecutor must negative beyond
2 Archer v R [2017] NZCA 52.
reasonable doubt, from other mitigating facts, which the defendant must prove on the balance of probabilities.
[12] Proof of disputed facts requires a sentencing hearing, which is triggered through a process beginning when one party asserts a fact and the other disputes it. The disagreement having been identified and drawn to the court’s attention, the judge indicates whether, if proved, it may affect sentence and in what way. For a mitigating fact about the offence or the defendant’s role in it, the court also decides whether the fact is wholly implausible or manifestly false, a threshold that must be crossed before the prosecutor may be called upon to negative it. If the fact qualifies as an aggravating fact or as a mitigating fact necessitating proof and the party wanting to rely on it persists, both parties may adduce evidence as to its existence “unless the court is satisfied that sufficient evidence was adduced at the trial”.
[24] The weight to be attached to any proved aggravating or mitigating facts is to be assessed at sentencing.
The disputed facts hearing
[25] At the hearing, the Crown called Dr Tse, an experienced forensic pathologist. Mr Maa also gave evidence.
Pathology evidence
[26] Dr Tse’s evidence confirmed his opinion that the direct cause of death was blunt force head and neck injury. He explained the more serious of the 29 head injuries, including a depressed skull fracture on the back of the head, slightly to the right, and other fractures to the nose, mid-face and jawbone. The head injuries involved substantial force. In the neck, there was also a traumatic axonal injury – stretching and breaking the cell structure in the brain stem. Dr Tse explained that such an injury would occur in one of three ways: either the blow is so hard that the head moves vigorously despite a conscious person bracing; or the person is unconscious; or the person is conscious but not expecting the blow.
[27] Dr Tse also said the plastic bag, if it did cause some sort of asphyxiation, would at most have hastened death. The head and neck injury was so severe that any other assault would not have changed the outcome. It is possible that the head and neck injuries could independently cause death. The axonal injury was irreversible.
[28] Dr Tse estimated that the fewest number of blows that could have inflicted the 29 head injuries was 10. He said that was a very conservative number.
[29] In cross-examination, Dr Tse acknowledged that the injuries on Mr Gutnik’s hands could have been caused by a punch. He also acknowledged that the blow on the back of the head could have been a blow from the side rather than from directly behind.
Mr Maa’s evidence
[30] Mr Maa gave evidence with an interpreter. He said Mr Gutnik came to take over for the night shift. He said that Mr Gutnik was more than 10 minutes late for work; the normal start time was 7pm. Mr Maa said he was working the day shift but there were no girls working so he did not go until around 6pm.
[31] Mr Maa said the CCTV did not have a password. He said there was no new technology application on his phone.
[32] Mr Maa said that when Mr Gutnik arrived late, Mr Maa asked why Mr Gutnik was late every time. Mr Maa said Mr Guntik did not say anything but came and hit him on the jaw and they started fighting for two or three minutes. Mr Maa said he was defending himself. He said then Mr Gutnik ran to the toilet and brought out a stick and they had another fight for two minutes. He took the stick from Mr Gutnik and hit Mr Gutnik a few times. Mr Gutnik fell down and Mr Maa was scared because he saw blood. He dropped the stick and went towards the kitchen. Then he came back and cleaned up. He was afraid blood would drop so he put the black plastic bag on Mr Gutnik to move to the sleep-out. He left the plastic bag open because Mr Gutnik was breathing. He put Mr Gutnik’s things in a bag. Mr Maa also said that during the fight there were knocks on the door. He thought someone was coming so he didn’t have time to think of plans. After he had taken Mr Gutnik to the sleep-out, he ran away.
[33] In cross-examination, Mr Maa did not agree that he must have known that Mr Gutnik was in a very bad state. He said he thought he was alright. When it was suggested that putting Mr Gutnik behind a closed door made it more difficult to find
him, Mr Maa said he didn’t think that much at the time. He denied he hid Mr Gutnik because he wanted Mr Gutnik to die.
[34] When it was put to him that he hit Mr Gutnik from behind shortly after Mr Gutnik arrived at the club, Mr Maa said he didn’t know why it [the statement in the agreed facts] was written that way, he didn’t say it that way.
[35] It was also put to Mr Maa that Mr Gutnik had a broken arm because Mr Maa beat him with the stick even as Mr Gutnik tried to defend himself. Mr Maa said he didn’t know whether Mr Gutnik was defending himself. Mr Maa said he just wanted to protect himself. He said he didn’t hit Mr Gutnik from behind.
[36] When asked about the doctor’s three possibilities for the neck injury, Mr Maa said Mr Gutnik was conscious; when he wasn’t conscious Mr Maa dropped the stick.
[37] Mr Maa denied turning off the CCTV earlier in the day because he knew he was going to do something horrendous.
[38] He also denied losing face to Mr Gutnik in their previous fight. He denied hating Mr Gutnik.
[39] As to the number of blows, Mr Maa said he “could remember it was four or five or three to four. Very short.” When it was put to him that it was nothing like three or four blows and that he lost it that night and struck Mr Gutnik brutally, he said it was reflex. He denied intending to kill Mr Gutnik.
Analysis
[40] Dealing first with events before the altercation, I accept Ms Stoikoff’s submission that the statement in the agreed facts that Mr Maa’s phone contained an application designed to work the CCTV cannot be used to conclude that Mr Maa planned the attack. Although Mr Maa’s evidence was inconsistent with that statement in the agreed facts, Mr McCoubrey did not seek a finding that Mr Maa turned off the CCTV earlier in the day and I could not be sure of that.
[41] As to the altercation itself, Ms Stoikoff acknowledged the inconsistency between the statement in the agreed facts that “the evidence indicates that Mr Maa struck Mr Gutnik from behind shortly after his arrival at the premises” and Mr Maa’s evidence that Mr Gutnik hit him first and after an initial fight Mr Gutnik returned with the stick. Ms Stoikoff submitted that statement in the agreed facts was not determinative of intent and could be cured by Dr Tse’s acknowledgement that the blow may not have come from behind.
[42] As indicated, Mr Maa said in evidence that he didn’t know why that statement was written that way, he didn’t say it that way. Given that, and the possibility that statement was based on the pathology evidence of a blow from behind, which Dr Tse acknowledged could have been a blow from the side, I do not consider the statement in the agreed facts is determinative in relation to the sequence of events or the direction of the blow. Mr McCoubrey acknowledged that the pathology evidence concerning the 0800 imprint did not go so far as to indicate the direction from which that blow came. I am not sure that Mr Maa initiated the altercation by striking Mr Gutnik from behind.
[43] There was a further inconsistency as to the number of blows to the head. Dr Tse said the fewest number of blows that could have inflicted the 29 head injuries was 10. Mr Maa said there were four or five or three to four. Ms Stoikoff accepted the pathology evidence. So do I. I have no doubt that Mr Maa struck Mr Gutnik’s head at least 10 times. Ms Stoikoff also accepted that it was not Mr Maa’s evidence that he did not recall the number of blows. I agree the inconsistency cannot be reconciled on that basis. I do not accept Mr Maa’s evidence about the number of blows.
[44] I put Mr Maa’s evidence about the number of blows to one side, reminding myself that by electing to give evidence Mr Maa assumed no responsibility to prove anything at all, and consider the other evidence including the admitted agreed facts.
[45] Mr McCoubrey submitted the pathology evidence was only really consistent with an intention to kill given the brutality, the number of blows and their severity. He also submitted Mr Maa’s conduct after the assault demonstrated an intention to
kill. Mr Maa covered Mr Gutnik up, moved him and, importantly, hid him. Mr McCoubrey submitted Mr Maa must have known he had gravely injured Mr Gutnik.
[46] Ms Stoikoff submitted it was clear that Mr Maa did not intend to kill Mr Gutnik. Mr Gutnik was still breathing when Mr Maa took him to the sleep-out. The plastic bag was just to prevent blood spill. Mr Maa did not hide Mr Gutnik; the sleep-out door was not locked. She submitted that if Mr Maa had intended to kill Mr Gutnik there was enough time to do so. No one else was around.
[47] As well as the number of blows, Dr Tse considered that the head injuries involved substantial force, which I accept. I also accept Dr Tse’s evidence that the traumatic axonal injury occurred in one of three ways: either the blow is so hard that the head moves vigorously despite a conscious person bracing; or the person is unconscious; or the person is conscious but not expecting the blow. If Mr Maa’s evidence that he did not hit Mr Gutnik from behind or when he was unconscious is accepted, the only remaining possibility is that the blow was so hard that his head moved vigorously despite bracing.
[48] In relation to Mr Maa’s actions after the assault, Mr Maa put a plastic bag over Mr Gutnik’s head and upper body. I accept he left the plastic bag open and his reason for using it was to prevent blood spilling. He then dragged Mr Gutnik out into the sleep-out and left him there with the door closed but not locked. Whether or not Mr Maa heard a knock on the door, he went to the trouble of using the plastic bag and removing Mr Gutnik from the main house. I acknowledge that Mr Maa’s actions after the assault do not necessarily indicate his intention at the time of the assault.
[49] Accepting that Mr Gutnik was still breathing, I reject Mr Maa’s evidence that he thought Mr Gutnik was alright. Given the number of blows, the substantial force used, the severity of the blow causing the traumatic axonal injury and the fact that Mr Maa had seen Mr Gutnik spasm on the ground, when he left Mr Gutnik in the sleep-out he must have known that Mr Gutnik was badly injured.
[50] As Ms Stoikoff acknowledged, it is implicit in the guilty plea that Mr Maa meant to cause Mr Gutnik bodily injury that was known to Mr Maa to be likely to
cause death (and was reckless as to whether death ensued). Considering the number and force of the blows, particularly the blow causing the traumatic axonal injury, Mr Maa may well have intended to kill Mr Gutnik. But considering together all my findings as to the circumstances before, during and after the assault, I cannot be sure. Intention to kill is not proved beyond reasonable doubt.
Conclusion
[51] The Crown has not proved beyond reasonable doubt that Mr Maa intended to kill Mr Gutnik.
Gault J