R v Mahia
[2014] NZHC 1396
•19 June 2014
THIS IS A REDACTED VERSION OF THE JUDGMENT. PORTIONS RELATING TO THE SEXUAL VIOLATION HAVE BEEN REMOVED.
ORDER PROHIBITING PUBLICATION OF DETAILS OR NARRATIVE AS THEY RELATE TO THE SEXUAL VIOLATION IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI 2013-025-333 [2014] NZHC 1396
THE QUEEN
v
DAVID JACKSON MAHIA
Hearing: 19 June 2014 Appearances:
M J Thomas for Crown
R M Lithgow QC and F Guy Kidd for AccusedJudgment:
19 June 2014
JUDGMENT OF MANDER J
Introduction
[1] David Jackson Mahia, you pleaded guilty on arraignment following a sentence indication to the murder and sexual violation of Nicola Fleming. Murder, as you know, carries a maximum penalty of life imprisonment and there is a presumption that such a sentence will be imposed. There is no dispute that a life sentence is appropriate in your case and in due course that will be the sentence I will impose. The issue, as counsel have referred to this morning, is to the length of time you must serve before you become eligible for parole and that remains for my
determination today.
R v MAHIA [2014] NZHC 1396 [19 June 2014]
Factual background
[2] The circumstances of your murder and sexual violation of Ms Fleming is primarily based on the account you gave to Police of your attack on Ms Fleming and the undisputed pathologist’s findings of the injuries you inflicted on her which your counsel at the sentencing indication hearing responsibly accepted the Court can properly have regard to.
[3] You and Ms Fleming had for some time been in a volatile intermittent relationship. On the afternoon of 8 February last year the two of you had spent some time together at Ms Fleming’s residence in the company of a mutual friend. Later that evening, you went out drinking before, in the early hours of the following morning, going to the mutual friend’s address where you engaged in sexual relations with her. This person informed you that Ms Fleming was in a relationship with another man. As a result of this perceived infidelity, you immediately left the friend’s address and contacted Ms Fleming, arranging to meet her outside the shared accommodation block where she lived.
[4] Upon meeting Ms Fleming outside, you commenced assaulting her. You grabbed her by the hair and pulled her down some steps, where she fell and hit her head on the concrete. You then pulled Ms Fleming to a car park area, where you hit her in the face a number of times, causing her to fall down. At that point you removed the victim’s denture and crushed it on the ground. You also pulled a large amount of hair from her head.
[5] From there, you went with Ms Fleming to the Otepuni Gardens, where you pushed her into the river. Upon removing herself from the river, you then went to an area by a band rotunda, where you punched and kicked Ms Fleming. You ripped her clothes off, leaving her naked. ………………… …………………………………......
……………….. On your account to the Police, you said you then went to leave, however Ms Fleming was unable to walk and she asked for assistance. You carried Ms Fleming back to her accommodation and left her on the floor of her room in a blanket.
[6] Later that morning, you returned to Ms Fleming’s accommodation. Upon obtaining access to her residence, you found her in her room, deceased. Later that day, you handed yourself into Police and gave a lengthy interview in which you stated that you intended, or had intended to give Ms Fleming a “hiding” but had no intention of killing her.
[7] A subsequent post-mortem revealed injuries over most of Ms Fleming’s body. These included a broken bone near her eye socket. She sustained a broken pelvis, seven fractured ribs and a fracture to her upper sternum. There were multiple injuries, including abrasions and bruising to her scalp, head, body and extremities. Her face was swollen and marked by abrasions and contusions. The cause of death was ascertained as blunt trauma injury. Ms Fleming’s death resulted from an intensive and sustained manual attack which went beyond what you were able to describe in your own account to Police. It is apparent this beating was administered while you were in a vengeful rage.
Impact on victims
[8] Nicola Fleming’s father, brother and cousin have shown great courage in addressing this Court this morning and have directly communicated in front of you the devastation you have caused to those who loved Nicola Fleming. I have also had the benefit of reading victim impact statements from Ms Fleming’s mother, sister, and from wider family members. These show the tragic and profound ongoing consequences of your offending. Little girls have lost their mother as a result of your senseless violence. Parents have lost their beloved daughter, siblings their sister, and you have left a family shattered.
[9] There is little I can add to what Ms Fleming’s family have said. Mr Lithgow QC has informed the Court that the victim impact statements have been read to you. It is clear that for this family to lose Nicola to such senseless violence has left them bewildered and wrecked. I acknowledge the depth of their grief, the suffering that has been caused to them and which they must continue to endure. I acknowledge the fears they have of the effect Nicola’s death will have on her children. Mr Mahia,
these are the terrible results of what you have done and you will have to live with them.
[10] There is no sentence I can pass which will ever begin to redress the loss caused by Nicola Fleming’s death. What I am required to do is to sentence you in accordance with the law in reponse to your offending.
Life imprisonment
[11] Mr Mahia, you will be sentenced to life imprisonment. That means, as Mr Lithgow has referred, you will spend the rest of your life in prison unless at some time in the distant future you can satisfy the parole board that keeping you in prison is no longer necessary to protect the community. If you are released on parole it does not mean that the sentence of life imprisonment has been served. It will always apply to you. Some prisoners are never able to satisfy the parole board that they should be paroled. For the rest of your life, if you ever give cause for concern again, you will be recalled to prison to continue to serve your sentence of life imprisonment.
Minimum period of imprisonment
[12] The law requires me to set a minimum period of imprisonment. What that means is that I have to set a period before it will become the responsibility of the parole board to assess your suitability for parole.
[13] When a person commits murder the standard minimum period of imprisonment is 10 years. As you are aware, Mr Mahia, from the sentencing indication that I gave you last month, I am not of the view that 10 years is sufficient. I gave very close consideration to whether s 104 of the Sentencing Act had application to this case. Of concern to me was the level of violence that you inflicted on Ms Fleming and the sexual assault you committed upon her.
[14] In determining whether s 104(d) of the Sentencing Act had application, the murder must be committed with a high level of brutality, cruelty, depravity or callousness. It is difficult making comparisons between the respective levels of
violence and the associated circumstances of that violence in the context of a murder charge. As I commented before you last month, the words “brutal”, “cruel”, “depraved” and “callous” are all apt descriptions of your conduct, particularly when regard is had to the injuries that you inflicted on Ms Fleming during the course of your attack upon her. All murders by their nature however involve a degree of brutality and callousness, and the Crown has accepted in the circumstances that s 104 does not have application.
[15] During the course of your attack on Ms Fleming, you sexually violated her. As you will be aware from the comments that I have already made to you in the course of indicating the level of sentence, that act must be reflected as a component part of the minimum period of imprisonment that I will impose. I concluded in providing my sentencing indication to you that while the commission of the sexual violation was a further episode of violence which you inflicted on Ms Fleming during the course of your ongoing assault, Ms Fleming’s death was not a consequence of any intent by you, at least at the commencement of the attack, to commit such a crime, and that the section does not have application. I note that in
reaching that conclusion, the recent Court of Appeal decision of R v Kinghorn1
fortifies me in that conclusion.
[16] In imposing a minimum term of imprisonment, I must consider the minimum term necessary in order to hold you to account for the harm done to the victim and to the community, to denounce your conduct, to deter you and others from committing the same or similar offence, and to protect the community.
[17] I also take into account the general purposes and principles set out in ss 7 and
8 of the sentencing legislation, and in particular the effect of your offending on
Ms Fleming’s family.
Aggravating features
[18] In identifying the relevant aggravating features of your murder of
Ms Fleming, I have cautioned myself in not taking into account that which is
1 R v Kinghorn [2014] NZCA 168.
inherent in the offence of murder itself. There are a number of aggravating features however which must be recognised.
[19] Firstly, there is the nature and level of the violence that you employed. The attack was prolonged; it occurred at different locations and resulted in multiple fractures and injuries sustained by Ms Fleming over almost her entire person. In that regard, your stated intent to administer a “hiding” is to be considered in the light of the medical evidence of the physical damage you inflicted. That evidence is indicative of the level of the violence you used and the many blows you must have struck.
[20] Secondly, Ms Fleming was a light, small framed woman who was attacked when isolated and alone. It was a cowardly attack. It is apparent that, if not at the beginning of the attack, at some stage during the course of events, and at the very least by the time of the sexual violation, she must have been injured and defenceless. You would have been aware of that, yet the sustained and ongoing nature of your attack which continued at different locations appears to have been relentless.
[21] Thirdly, premeditation. I acknowledged at the time of the sentence indication that, despite your anger and apparent need for vengeance, you did not set out to kill Ms Fleming. You however travelled from a different location for the specific purpose of administering a beating. You deliberately arranged to meet Ms Fleming outside the hostel so you would have ready access to her in order to inflict the violence and to take her away from where other people might be in a position to intervene and come to her aid. You clearly gave forethought to what you were about to do.
[22] Fourthly, the sexual violation is a significant aggravating feature of the violence you administered on your victim. …………………………………………..
…………………………………………………………………………………………
…………………………………. is a violation which falls at the higher end of what is called Band 2 for offences of unlawful sexual connection set out in the guideline
Court of Appeal judgment of R v AM.2 …… ……………………………………
…………………………………….
[23] This violation was a continuation of the indignities you had already inflicted on Ms Fleming. You had removed her denture and crushed it on the ground of the car park, ripped large chunks of Ms Fleming’s hair from her head, thrown her in a river, and stripped her of her clothes. You did this, as you accepted at interview with the Police, to humiliate, degrade and dehumanise her. That Ms Fleming experienced this, and in particular the indignity and violence of being sexually violated, shortly before she died requires to be recognised in the minimum term imposed.
Personal circumstances
[24] Mr Mahia, at the age of 31, you have a long list of previous convictions. You do not however have previous convictions for serious violence, nor for sexual offending, yet, as acknowledged through counsel in written submissions, there is a history of an “irrational resort to violence” which you struggle to understand.
[25] You have little family support, although your counsel has advised that your mother endeavours to maintain a relationship and that you are making efforts to re- establish contact with your family. The pre-sentence report notes that your father was killed in an industrial accident when you were just 2 years of age, and you describe a childhood punctuated by physical abuse and violence. You frequently ran away from home, and your youth was marked by crime and placement in secure units, before entering prison at the age of 17. You report a longstanding addiction to cannabis and a pattern of binge drinking.
Remorse
[26] The pre-sentence report can only be described as negative. You demonstrated little, if any, remorse for your victim to the attending probation officer. You have written a letter seeking to explain the attitude you displayed towards the pre-sentence writer, effectively as one of bravado. Whatever difficulties you may have had,
Mr Mahia, with the probation officer and whatever the perceived provocation, that
2 R v AM [2010] NZCA 114, [2010] NZLR 750, (2010) 24 CRNZ 540.
you could speak of Ms Fleming in such callous terms to him, raises concern about the genuineness of your representations of regret and remorse. Your counsel in written submissions has referred to your attitude of belligerence and defiance when you feel threatened or not respected and the need to address those behaviours, but submits that you do have feelings of genuine remorse, demonstrated by your actions after you discovered what you had done and went to the Police. Mr Lithgow has urged upon me that you are determined whilst in prison to commit yourself to becoming a better person.
Guilty plea and restorative justice
[27] Mr Mahia, you pleaded guilty shortly before you were due to stand trial, after receiving a sentence indication. The delay in the entry of the guilty pleas is said to arise out of you only gaining an understanding of the medical mechanism or cause of Ms Fleming’s death, after you had had the assistance of a pathologist instructed by your counsel. It is said on your behalf that it was only after that intervention that you were in a position to give an “informed” plea. I have taken that explanation into consideration and accept it should be given weight when assessing the timing of your guilty plea.
[28] You have indicated a willingness to participate in some form of restorative justice process. That is unrealistic having regard to the attitude that you apparently continue to display when challenged by others, regrettably even in the context of the subject of Ms Fleming’s death. I accept this may be a false front to your true feelings, however a restorative justice initiative is not something that can appropriately be pursued at this time. I do however take into account what you have offered and the letter you have written which was filed with counsel’s submissions.
Sentence
[29] In setting the starting point of the minimum term of imprisonment, I have had regard to a number of sentencing decisions.3 They can however only provide broad
3 R v Williams [2005] 2 NZLR 506, (2004) 21 CRNZ 352 at [30] – [34], [45] – [54], [75] – [94]; Pukeroa v R [2013] NZCA 305 at [38] – [48]; R v Knight [2012] NZHC 2866 at [8] – [9], [13]; R v Neketai [2013] NZHC 2711 at [15] – [22]; R v Robinson [2013] NZHC 961; R v Gleeson [2012] NZHC 705; R v Gleeson [2012] NZHC 705 at [27] – [42]; R v McDonald [2013] NZHC
guidance because each case is invariably unique, and the weight to be afforded the various factors both in terms of the circumstances of the offence and the offender will inevitably be different. I have been assisted in the question of the appropriate discount for your guilty plea by the cases provided by your counsel, in addition to other authorities.4 Ultimately, the credit to be afforded is one of assessment in the individual case.
[30] As I indicated to you in providing my sentence indication, the appropriate starting point for the minimum term of imprisonment is one of 14 years. Your guilty pleas have saved the necessity of a trial and further consequential trauma to Ms Fleming’s family. It is an acknowledgment by you of what you have done, and while I have some doubt as to the depth of your remorse, the entry of the plea is consistent with your conduct after discovering Ms Fleming’s body and going to the Police to whom in a distressed state you told them what you had done. Taking into account the various matters that I have reviewed, I reduce the minimum term by 18 months.
[31] The sentence I impose on you, Mr Mahia, is one of life imprisonment for the charge of murder with a minimum term of imprisonment of 12½ years. In relation to the sexual violation charge, I sentence you to a concurrent term of 8 years imprisonment.
[32] You may stand down.
Solicitors:
Preston Russell Law, Invercargill
Robert Lithgow Queens Counsel, Wellington
1540 at [8] – [16]; R v Prole [2013] NZHC 1267 at [2], [20] – [33]; R v Rangiwhaiao [2012] NZHC 1751 at [17] – [21]; R v Bunt [2012] NZHC 1288 at [16] – [40]; R v Mohamed [2013] NZHC 1761 at [23] – [31]; R v Callaghan [2012] NZHC 596 at [14] – [28].
4 R v Williams [2005] 2 NZLR 506, (2004) 21 CRNZ 352 at [69] – [74]; R v Knight [2012] NZHC
2866 at [9]; R v Gleeson [2012] NZHC 705 at [41] – [42]; R v Prole [2013] NZHC 1267 at [31]; R v Rangiwhaiao [2012] NZHC 1751 at [20]; R v Callaghan [2012] NZHC 596 at [28]; R v Mohamed [2013] NZHC 1761 at [30] – [31]; R v Bunt [2012] NZHC 1288 at [33] – [35].
Solicitors:
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