R v Maheno

[2013] NZHC 2430

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2013-029-000492 [2013] NZHC 2430

THE QUEEN

v

EDWIN HARVEY MAHENO

Charges:

Plea:

Murder x2

Guilty

Appearances:           M B Smith and D B Stevens for Crown

K C Bailey and A M Dooney for Prisoner

Sentenced:               17 September 2013

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Whangarei

Copy to:            K C Bailey, Whangarei

A M Dooney, Whangarei

R v MAHENO [2013] NZHC 2430 [17 September 2013]

[1]      Edwin  Harvey  Maheno,  at  the  age  of  39,  you  are  before  the  Court  for sentence having pleaded guilty to two counts of murder.

[2]      I formally enter convictions in relation to those two counts.   Given those convictions for murder you are now subject to the three strikes law.  I am giving you now a warning of the consequences of another serious violence conviction.  You will also be given a written notice outlining those consequences which list the serious violent offences.   If you are convicted of any serious violent offence, other than murder, committed after this warning, and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release.  If you  are  convicted  of  murder  committed  after  this  warning  then  you  must  be sentenced to life imprisonment.  That will be served without parole unless it would be manifestly unjust.  In that event the Judge must sentence you to a minimum term of imprisonment.

[3]      I turn to the circumstances of your offending.  You lived with the victims at a property known as the Maheno Whanau Homestead.  You had lived at the address since you were a baby.   You were raised there by your grandmother.   One of the victims was your Uncle Ivan, who you regarded as a brother, the other was his wife Carmen.  When your grandmother passed away in 2009 the house was left to Ivan. You continued living in the house as had been your grandmother’s wish.

[4]      The relationship between you and Ivan and Carmen became strained.  On the night of 18 May 2013 there had been a party at the address. As on a number of other occasions you did not join in, but kept to yourself.  The following morning, Sunday

19 May 2013, you awoke early, had your breakfast and then was watching TV. While you were watching TV in the lounge you heard the victims talking in the kitchen.   Carmen was apparently annoyed at a used teaspoon being returned and used again in the sugar bowl.   Ivan approached you and an argument followed. Carmen also came into the lounge.  There were verbal exchanges between you and her.  You challenged Ivan to a fight but he declined.  He then walked away to his bedroom and Carmen returned to the kitchen.

[5]      You went to your room and took up a .22 rifle you kept there. You loaded the magazine with between five and seven rounds and chambered a round.   You then walked to Ivan’s bedroom and shot him once in the face as he pleaded for his life. You then looked for Carmen as you intended to shoot her too.   You attempted to chamber another round but the gun jammed.  On hearing the first shot Carmen had run from the kitchen to the bedroom area.  She saw you holding the gun and Ivan lying there  injured.   While  you  were trying  to  chamber another  round  Carmen struggled with you over the top of Ivan, who was lying on the floor.  You punched her with a closed fist to her head and thrust the barrel into her stomach causing her to fall backwards.

[6]      You then struck her in the head with the butt of the rifle.  You ran out on the deck trying to reload it.  Carmen and you then struggled further with the gun.  She tried to take it off you.  You pushed her away and backed away from her.  You then cleared the chamber and reloaded the rifle.  She ran across the driveway towards a neighbouring farm fence to get away from you.  You chased her.  She climbed over the wire fence and kept running.  You stayed your side of the fence, raised the rifle, took aim and shot her once in the back of the head.  She fell to the ground.  You could see she was still breathing. You shot her a second time in the buttocks.

[7]      You then returned to the house and went back inside.  Ivan had crawled out of the bedroom into the hallway.  He was still alive and was trying to push himself off the floor.  He begged you for his life. You shot him again in the head.

[8]      You then put together some of your belongings, left the house and drove off down the driveway.   On the way you spoke to a relative, another uncle, who was checking stock in the front paddock.  You told him what you had done.  You then went to your aunt’s house where you also told her what you had done.

[9]      You then returned to the property and looked for Carmen.  She was not where you had last seen her.  You assumed that your uncle had found her and taken her to hospital.   In fact she had managed to crawl into some flax bushes where she was hiding.  You then went back into the house and, using the butt of your rifle, smashed

the television with such force the wooden butt broke off.  You were still angry and you stomped on Ivan’s dead body while you passed him.

[10]     You then drove to the police station and turned yourself in.   You made a complete and full and frank statement to the police.  You told them exactly and in detail what you had done.  The police went to the property and found Ivan dead in a pool of blood in the house.  They also found Carmen seriously injured in the flax bushes.  She was taken to hospital but died from her injuries later that evening.  You told the police you had killed Ivan so the property would go to other members of your family.

[11]     Mr Maheno you are a single 39 year old male of Ngapuhi descent.  You have no  children.    You  were  brought  up  by  your  maternal  grandmother.    You  were troubled at school, and had difficulty with reading and writing.   You have since improved your reading skills and have completed some horticulture courses.  You have gained some certificates in house painting. You use cannabis regularly.

[12]     In your past you only have relatively minor convictions although two relate to firearms. You told the probation officer you were guilty of what you had done and recognised the consequences of your actions.  Your biological mother considers your offending to be out of character and describes you as quiet.  You told the probation officer, consistent with your interview with the police immediately following events, that tension had built up in the house caused by financial issues and personality differences, particularly with Carmen.   You also told the probation officer, again consistent with what you had told the police in interview that at the end of the argument and before you had gone to your room, you had threatened to kill Carmen and she dared you to do it before going back to the kitchen.   You said that you thought about killing yourself but felt the family would be better off without the victims rather than you, so you decided to kill them.

[13]     Your probation officer notes the risk of you harming others is high and your risk of reoffending is also considered medium to high.

[14]     Given the circumstances of the killing you were assessed by two forensic psychiatrists.  Both confirmed your fitness to plead and that you were not insane at the time of this offending.   One of them, Dr Caveny, considers you  may have underreported symptoms of anxiety, depression and hyper-vigilance, which could be interpreted as a disease of the mind.  However, both were satisfied you were aware of your actions and the consequences of them at the time of your offending.  You knew that what you were doing was morally wrong, having regard to commonly accepted standards, but nevertheless went ahead and deliberately did it.

[15]     Mr Maheno, the sentence for murder in this country is life imprisonment. That is the sentence you will receive for the two murders.  That sentence is society’s response through the judicial system to your actions.

[16]     The only remaining issue for the Court is the minimum term of imprisonment to fix that you must serve before parole is considered.  The Crown submits a minimum term of imprisonment starting somewhere between 19 and 21 years is appropriate.  Mr Bailey has submitted that a minimum period of imprisonment of 17 years would be manifestly unjust and argues that a minimum non-parole period closer to 10 years would be more appropriate.

[17]     The sentence of life imprisonment is imposed on you to hold you accountable for the two murders.  It is also to promote in you a sense of responsibility for and acknowledgement of that harm.   To the extent possible the sentence should also provide for the interests of victims of the offence and the effect of the offending on victims, which include both deceased’s wider families.  You have heard the effect on the victims from the victim impact statements read in Court.  I have also read and considered a number of other statements which have not been read, which will have been available to your counsel to discuss with you.

[18]     The sentence must denounce your actions, and deter others to the extent it is possible.   The sentence should also protect the community from you.   You are a dangerous man, prepared as you were to deliberately inflict fatal violence.   The gravity of the offending and your culpability is clear from the circumstances I have described.  The seriousness of the offence is reflected by life imprisonment as the

sentence for murder.   The above considerations are also all relevant to fixing the minimum term of imprisonment before parole is considered.

[19]     Section 104 of the Sentencing Act applies in this case.  Despite Mr Bailey’s submissions I consider these murders were committed with a high level of cruelty and callousness and also, obviously, you have killed two people.1    Section 104 is engaged on both aspects.

[20]     I consider you were callous when you returned and shot Ivan a second time to the head while he pleaded for his life.   You were also callous in the way you followed and shot Carmen twice, and then left her to die.  It is impossible to imagine the pain and fear the victims suffered at your hands – Ivan when begging you for his life and Carmen while she lay fatally injured and dying in the flax bushes.

[21]     I have regard to the cases counsel have referred to particularly:  R v Samoa, R v Ying, R v Howse, R v Lundy, R v Ogle and R v Reihana.2

[22]     In support of his submissions that a minimum term of imprisonment of 17 years would be manifestly unjust, Mr Bailey submits you were effectively provoked and in a rage in this case.  He says the provocation was caused by the general tension in the household and then the tipping point was the argument over the trivial matter on the Sunday morning and Carmen’s response to you when you threatened to kill her.

[23]     In Hamidzadeh v R the Court of Appeal considered the effect of the repeal of the partial defence of provocation on sentencing for murder.3    As the Court recognised, the broad question is whether the relevant words or conduct in issue should be treated in all circumstances as reducing your culpability for the offending. At [62] of that decision the Court noted:

The approach to provocation sentencing will be very much fact-dependent. However, relevant factors may include the nature, duration and gravity of the

1      Sentencing Act 2002, s 104(1)(e) and (h).

2      R v Samoa CA 85/04, 4 August 2004;  R v Ying (2004) 20 CRNZ 1078;  R v Howse [2003] 3

NZLR 767;  R v Lundy (2002) 19 CRNZ 574 (CA);  R v Ogle HC Wellington CRI-2009-091-

2763, 16 October 2009; R v Reihana HC Rotorua CRI-2005-070-7328, 29 June 2007;

3      Hamidzadeh v R [2013] 1 NZLR 369.

alleged provocative conduct; the timing of any response by the offender; whether the response was proportionate to the nature, duration and gravity of the provocation; whether the provocation was (or remained) an operative cause of the offender's response; and whether the provocative conduct was such as to reduce the offender's culpability in all the circumstances. ... The requirement to demonstrate manifest injustice must be kept firmly in mind. Where a death has resulted, a high level of provocation will ordinarily be required   to   warrant   the   conclusion   that   something   less   than   life imprisonment is permissible in terms of s 102.

[24]     Where s 104 is engaged, as it is in this case the Court of Appeal went on to state:4

... The approach to s 102 will be influenced by the sentencing judge's conclusion as to whether s 104 applies. Where one or more of the factors identified in s 104(1) is engaged, a minimum period of imprisonment of 17 years must be imposed unless it would be manifestly unjust to do so.

I also note the further comments of the Court of Appeal.5

[25]     In relation to the present case, in my assessment, the incident itself which led to your killing the deceased was itself minor.  However, I accept that that has to be seen against the background of a longer stressed relationship between you, Ivan and Carmen,  and  the  disagreement  that  morning.     It  is  significant  and  does  not particularly help you that you challenged Ivan to a fight which he was responsible enough to decline.   You then went away and stewed on events.   As you told the probation officer, you thought about killing yourself but then made the decision your family would be better off if you killed them, Ivan and Carmen.  While there may have been what could be described as provocation or an element of provocation arising from the difficulties between you and the deceased, which contributed to your response, I consider it to be relatively minor and your response was clearly not proportionate.  You were able to calmly decide that, rather than killing yourself you would kill them, with the objective of ensuring, in killing Ivan at least, the house passed to your family.

[26]     Further, you had sufficient time during the course of the incident to stop on a number of occasions.  Despite that you intentionally returned and shot Ivan a second

time.   You followed Carmen and shot her in the back of the head while she was

4      Hamidzadeh v R, at [69].

5 At [70].

running away from you.  It is not going too far to describe your actions as amounting to execution type killings.

[27]     So while I take the background to the strained relationship between you and the victims into account there must be a limit to the effect that can have on the appropriate sentence, in terms of the minimum non-parole period.

[28]     As the Court of Appeal noted it is not for the Court on sentencing to reduce the sentence to whatever level it considers appropriate.   There is no warrant to interpret s 104 merely as a guide to judicial discretion.  In this case I consider the appropriate approach to sentencing in fixing the minimum non-parole period is that

suggested by McGrath J in R v Williams.6

[29]     Having regard to the circumstances of the offending I consider a starting point before taking account of mitigating factors is a minimum term of imprisonment of 21 years.  I then take into account counsel’s submissions as to provocation in light of the above discussion of it.   I also take into account the medical reports I have before the Court, which as I have said, disclose symptoms of anxiety, depression and hyper-vigilance.   While relevant to culpability, none of those matters, nor the fact that you have pleaded guilty in my judgment lead the Court to the stage where it could be said your culpability is reduced to the extent where it could be said to be manifestly unjust for you to be sentenced to a minimum term of at least 17 years.

[30]     Mr Bailey has submitted you are remorseful and refers to the notes in your Bible in which you express regret.  On the material before the Court taken as a whole I do not consider you to be remorseful or not sufficiently remorseful to impact on the appropriate sentence.  Nothing in what you said to the police, the doctors who have assessed you, the probation officer or your attitude in Court supports any allowance for remorse.  The comments in your Bible are directed at your own position.  You still seem to retain this rather perverse idea that you acted for the benefit of your family and that in some way justifies what you have done.  That is apparent from the probation officer’s notes that while you say you regret what you have done to Ivan,

you do not regret what you did in relation to Carmen.

6      R v Williams, above n 5.

[31]     The Court must also take account of your guilty plea but in doing so I note that the prosecution case, the Crown case against you would have been overwhelming.   Given the domestic situation in the house, your apprehension and ultimate conviction on these charges was inevitable.  The real advantage of the plea is that it avoids the trial and may provide closure or at least the start of closure for the victims’ families.  I take those factors into account when considering the impact of your guilty plea.

[32]     So  from  the  starting  point  of  a  minimum  period  of  21  years  I  apply  a reduction for the, in my assessment, limited provocation and your mental conditions which affect your culpability.   That reduces the minimum term by one year, six months.  I then apply a further reduction of one year, six months for your guilty plea.

[33]     I  consider  that  the  appropriate  minimum  non-parole  period  required  to address the purposes and principles of the Sentencing Act in this case remains at 18 years.

[34]     I am satisfied that in no way can that be described as manifestly unjust given the circumstances of this offending.

[35]     Mr Maheno please stand.  On both counts of murder you are sentenced to life imprisonment.  You are to serve a minimum non-parole period of at least 18 years.

Stand down.

Venning J