R v Mareikura

[2014] NZHC 3244

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-043-1754 [2014] NZHC 3244

THE QUEEN

v

SHILOH MAREIKURA

Hearing:	16 December 2014
Appearances:	J Marinovich for the Crown P Mooney for the Defendant
Judgment:	16 December 2014

SENTENCING REMARKS OF THOMAS J

Solicitors:

C&M Legal, Auckland.

Mooney & Webb, New Plymouth.

R v MAREIKURA [2014] NZHC 3244 [16 December 2014]

[1]      Shiloh Mareikura, you appear today for sentencing having pleaded guilty to one charge of murder.

[2]      The sentence for murder is life imprisonment, unless it would be manifestly unjust.1    In your case there is no suggestion that a sentence of life imprisonment would be unjust so that is the sentence that I will impose on you.  The question I must decide is what minimum period of imprisonment should be imposed.  That is the term that you must serve before you can be eligible for parole.

Facts of the offending

[3]      On 21 November 2012, you were convicted in the Hawera District Court for contravening a protection order, threatening to kill and breaching court release conditions.   You were sentenced to 10 months’ imprisonment on the charge of threatening to kill and eight months concurrently on each of the other two charges.

[4]      On 10 April 2013 you were released from prison on conditions. Those were:

(a)	not to enter the township of Opunake without the express consent of a probation officer;
(b)	to attend an assessment for substance abuse, alcohol and drugs as recommended; and
(c)	to  attend  an  assessment  for  domestic violence counselling and  to attend and complete any treatment programme.
[5]	You	were given written approval on 4 September 2013 to return to Opunake

and attend the tangi of Ms Lellmann, a friend of your mother’s.  You were to stay with your mother in Opunake for one night only, being 4 September, and to leave

Opunake by 5 pm on 5 September 2013.

1      Sentencing Act 2002, s 102(1).

[6]      You did not, in fact, attend the tangi at the marae.   You arrived at your mother’s address at around 6 pm on Wednesday 4 September.  You showered, then went to the Surf Inn to socialise.  When the Inn closed at around 11 pm, you continued socialising at an address on Domett Street.  At around 3 am you returned to your mother’s address.

[7]      When you got to your mother’s house, you woke family members and your mother twice told you to quieten down.   She describes you as being under the influence of alcohol and/or drugs.  You told your younger brother and nephew, who were woken up, that you were looking for a screwdriver and/or a knife. A short time later you left your mother’s address.

[8]      At around 5 am you knocked on the door of the victim, Mr Desroe Bishop. Mr Bishop answered the door.  Hone, Mr Bishop’s son, heard a male voice say “Where are the drugs?”.  There was a brief argument between you and Mr Bishop. He told you to leave.  There was a scuffle and you then pulled a knife from your back pocket and began to stab Mr Bishop multiple times.   Hone grabbed a glass object and struck you over the head in an attempt to stop you.  You turned around and told Hone that he would be next.

[9]      Mr Bishop told Hone to run.  Hone ran to several addresses in an attempt to get some assistance, including a neighbouring property, the fire station and the Police station.  He finally ran to the address of his grandmother, on Domett Street. He told her that his father had been stabbed by a male he knew as “Shiloh”.  She made an emergency call to Police at 5.51 am.

[10]     When Constable Fraser McKenzie arrived at the scene, he noticed there was a smearing of blood on the back wall of the house.  On entering the address, he saw a large amount of blood on the floor and walls, and Mr Bishop’s body lying face-down in a large pool of blood just inside the back door.  Mr Bishop was declared dead by a paramedic at 6.50 am.

[11]     In the meantime you returned to your mother’s address.  Family members say you came home at around 6 am and woke them by having a shower.  They heard the

washing machine turn on.   They later found in the washing machine some towels from the bathroom, and some clothing that you had arrived with, including your backpack and vest with the “Nomad” gang patch on it.

[12]     You were arrested on the morning of 5 September. You had a 3 cm laceration between your left thumb and first finger which required eight stitches.

[13]     Police subsequently found various items in a local stream.   Along with a blue-handled boning knife, they found your watch, clothes and Westpac cashflow card.   Your  family members have said  they believe the  knife came from  their address.

[14]     Mr Bishop’s body was found to have suffered five stab wounds, 19 incised wounds, and four abrasions to the head, neck, back, shoulder and upper arms.  The cause of death was two stab wounds to the neck which injured two major blood vessels.   These injuries would have caused Mr Bishop to die approximately 30 seconds after they were inflicted.

[15]     You declined to make a formal statement to the Police.  You said that you knew nothing about the assault on Mr Bishop, you had not been to his address, you did not do anything and you were innocent.  In relation to the injury to your hand, you said you had slipped while buttering bread.

Victim impact statements

[16]     Mr  Bishop’s  mother,  sister,  and  cousin  have  read  their  victim  impact statements to the Court today.  They have spoken bravely of the impact on them and Hone.  I hope as a family they can work together to support him.  I have also read victim impact statements of Mr Bishop’s father, son Hone, former partner, and another cousin.  Understandably, your murder of Mr Bishop has had a devastating impact on their lives.  He was by all accounts a wonderful, caring man and a loving and attentive father.

[17]     Hone, Mr Bishop’s son who is now 12 years old, says he has been in a state of shock since the murder.  He describes the horror of the night he ran around the

neighbourhood seeking help for his Dad.  For the first eight months he had memory recall, reliving that terrible night in his mind every day.  He feels like he could have done more to save his Dad, although of course, he could not have done anything more.   He suffers from post-traumatic stress disorder, depression, anxiety and adjustment disorder.

[18]     He is only able to cry when he gets angry.  For the first six months after the murder he wrecked his bedroom every day to try and make himself feel better.  He missed his Dad so much he wanted to die to be with his him, and thought of different ways to kill himself.   For a time he could not leave the house and always had to make sure the doors and windows were locked in case someone came in and tried to kill his family.   Hone struggled to concentrate.  He had a bad experience with an educational psychologist which caused him to miss school for the rest of 2013.  At his new school he was cruelly bullied about his Dad’s death, and had to change schools again.

[19]     Now he cannot sleep without Mr Bishop’s pillow and jersey.   He is still scared that his Mum will be killed.  He cannot do things like rugby and surfing because it reminds him too much of his father.   He cannot relate to his friends because they have not been through what he has.  He worries that when he grows up and gets a girlfriend he will not be able to protect her from bad people.

[20]    The clinical psychologist who saw Hone confirms the huge psychological impact Mr Bishop’s murder has had on him.   Hone has displayed remarkable resilience. He recently went on a school camp and is now able to trust people more.

[21]     Mr Bishop’s mother, Lynne, says the loss of her son has left her permanently traumatised.  Some days she cannot get out of bed and wishes her life would end to take away the intense feelings of sadness and anxiety she is left with.   She takes medication to  tolerate these feelings.    She feels detached from herself and  has wanted to be alone.

[22]     Mr Bishop’s father, says he struggles to explain how he feels, but he misses Mr Bishop greatly.  He also misses the contact he used to have with Hone.  He has become more reserved and his temper has shortened.

[23]     Lisa is Mr Bishop’s younger sister.   She and her partner were due to give birth to their first child 10 days after you killed Mr Bishop.   She was put on antidepressants a week before her son was due.  She says she had no happiness when her son was born.  She is deeply saddened that Mr Bishop is not here to be an uncle to her son.  She describes her feelings of helplessness as she watched her mum suffer through depression.   She experiences post-traumatic stress disorder, panic attacks, anxiety, and has undergone counselling sessions.

[24]     Ma-te-wai Brightwell is Hone’s mother.  She suffers from vicarious trauma, having  stayed  up  every  night  for  the  first  six  months  after  Mr  Bishop’s  death listening to Hone re-live his murder.   She felt like she failed as a parent for not saving Hone from this trauma.  She has been unable to grieve and has had to hold herself  together  for  her  children,  giving  up  her  career  she  can  give  them  the emotional support they need.  Her 17 year old son knew Mr Bishop as a father and has tried to take his own life.  He has got into trouble as he was not coping with the death. She has also suffered financially.

[25]     Finally, Linda and Maria, Mr Bishop’s cousins, have spoken of the grief,

trauma and fear they have suffered since his death. They miss Mr Bishop terribly.

Personal circumstances

[26]     You are 34 years old and of Maori descent. Your parents separated when you were two years old and you lived with your mother in Opunake for most of your life, however she died of cancer in 2008.  For a short period from the age of 13 to 15 you lived in Ohakune with your father.   You left school without attaining any qualifications.

[27]     You  have  mainly  worked  on  farms  and  in  the  rural  sector.    Your  last employment was in 2008 and you have been in receipt of benefits since then, mainly the  sickness  benefit  due  to  a  chronic  back  injury.    You  also  have  chronic  ear

problems and are partially deaf.   You are on medication for long-standing asthma issues and suffer a pain syndrome following from surgery.

[28]     Around 18 years ago you formed a domestic relationship and your first son was born in 2000.  You separated from your former partner nine years ago.  She has obtained a protection order which you have breached on a number of occasions. The two of you have, however, had a second child together.

[29]     You have 48 previous convictions, including four convictions for threatening to kill or do grievous bodily harm and one injuring with intent to injure in 2010.  The rest consist mainly of theft and burglary charges, drug charges and breaches of court orders and conditions.

[30]     The  probation  officer  notes  that  the  seriousness  of  your  offending  has escalated rather than diminished with age.  You reported that your offending began with some regularity after separating from your partner about nine years ago and has since “spiralled out of control”.  You attributed that lack of control mainly to your abuse of alcohol and drugs.

[31]     With regards to the victim, Mr Bishop, you said that you grew up together and used to be mates.  However, you had a falling out a few years ago, fought and Police became involved.   You said you had no contact with Mr Bishop after this event, but you are adamant that you did not harbour any ill will towards him.

[32]     You became a member of the Nomad criminal gang around four years ago. You acknowledged the gang condones, if not encourages, the abuse of alcohol and drugs.  However you gave the Probation Officer no indication that you are motivated to address your alcohol and drug abuse issues or to rescind your gang membership, stating that you enjoy the gang lifestyle of “cruising, drinking, mixing with a good bunch of blokes”.

[33]     You told the Probation Officer that you have no recollection of anything that you did from when you started drinking with family and friends on the night of the offending, through until you were woken by Police the next day.  You were unable to

provide any explanation for  your  behaviour, but  alluded to  mental illness  as  a possible cause.  You have suffered from some type of mental illness since at least

2006 and describe various types of hallucination, as I will discuss in more detail later.  Whilst on remand for this offending your condition deteriorated and you spent around nine months as an inpatient at a mental health facility in Hamilton.  The Probation Officer notes that your ongoing compliance with a mental health treatment regime must be seen as critical to your ongoing wellbeing.

[34]     You expressed remorse for what you did and the consequences of it.  You regret the impact those actions have had on Mr Bishop’s family, your own family, and the wider Opunake community.

[35]     The Probation Officer assessed you as being at high risk of re-offending and of causing harm to others.  This high risk automatically qualifies you for a referral to the department’s psychologists.

Minimum term

[36]     I turn now to the issue of the appropriate minimum term.  The minimum term must:2

(a)       hold  you  accountable  for  the  harm  done  to  the  victim  and  the community by your offending;

(b)      denounce your conduct;

(c)       deter you and others from engaging in conduct like that in the future;

and

(d)      protect the community from you.

Submissions

[37]     The Crown submits that the minimum period of imprisonment should be at least 17 years on the basis that one or more of the factors identified in s 104 of the Sentencing Act 2002 apply.  The Crown says that the murder was committed with a high level of brutality, cruelty, depravity or callousness, and involved calculated or lengthy planning and unlawful entry into or unlawful presence in, a dwelling place.3

[38]     The Crown says that other aggravating factors are also present, including the extent of the harm resulting from the offence, Mr Bishop’s vulnerability in the early hours of the morning and his inability to protect himself, and the fact the murder was committed while you were subject to release conditions.  On that basis the Crown submits that a minimum term of 19 years’ imprisonment would be appropriate. However, the Crown acknowledges that your guilty plea and mental health issues must be taken into account, and accept these two factors can properly result in the Court finding that such a minimum non-parole period would be manifestly unjust in all the circumstances.  On that basis the Crown advocates a minimum term of 16 years’ imprisonment.

[39]     In defence your counsel submits that s 104 does not apply.  With regard to the level of brutality, cruelty and callousness, Mr Mooney says that murder by use of a knife is not uncommon, and that the evidence suggests that you did not know that Hone was present when you attacked Mr Bishop.   Mr Mooney also submits that there is no evidence that the murder involved calculated or lengthy planning.   He notes that it is not clear when you armed yourself and says the fact that there was animosity between you and Mr Bishop and you walked to his house on foot does not imply the murder was calculated.  He suggests it could have initially been an inquiry for drugs.

[40]     Even if s 104 does apply, defence counsel submits that it would be manifestly unjust to impose a minimum term of 17 years, due to your guilty plea and your mental health issues.  Defence counsel says that a minimum term of imprisonment of between 10 and 11 years is appropriate.

Analysis

[41]    Murders almost always involve elements of brutality, cruelty, depravity or callousness, but only those which involve one or more of those elements to “a high level” will fall within s 104 and lead to a minimum term of at least 17 years.  I am satisfied that s 104(1)(e) applies in this case.  Not only did the attack involve five stab wounds and 23 incised wounds and abrasions (including to the neck and head); it also took place in front of Mr Bishop’s young son, Hone, who was only 11 years old at the time.   The submissions of defence counsel that you were not aware of Hone’s presence are clearly not sustainable.  You continued your attack despite Hone’s attempt to stop you.  You looked at him and told him he would “be next”. The photographs from the scene suggest a vicious and frenzied attack.  I am satisfied that the use of the knife and the number and nature of total wounds inflicted, in combination with the presence of and your interaction with Hone, means that this

murder did involve a high level of brutality and callousness.4

[42]     I do not consider, though, that the other s 104 factors relied on by the Crown apply.    The  idea  of  lengthy or  calculated planning under  s  104(1)(b)  involves working out detail in advance to a level which did not appear to exist in your case.5

Furthermore, as Mr Bishop let you into the house after you knocked on the door, this does not qualify as a case of unlawful entry or presence in a dwelling place, even though the attack occurred after Mr Bishop told you to leave.6

[43]     In my view, the 17 year minimum period required by s 104(1)(e) must be uplifted by an additional year to account for the aggravating facts that this offending

occurred while you were subject to release conditions imposed on charges including

4      In reaching this conclusion I have considered analogous cases.   See R v Gottermeyer [2014] NZCA 205 where the victim suffered 12 different knife wounds to her head, chest, back, hands and throat. The victim and defendant’s daughter was present in the flat. The daughter did not see the attack but heard the mother scream and saw her mother lying on the floor bleeding after. The Court of Appeal held that the use of a knife, the number and nature of the wounds inflicted, the fact that the victim took some time to bleed to death, and the fact that the couple’s child was in the house at the time meant that a high level of brutality, cruelty and callousness was involved. In R v Fraser HC Christchurch CRI-2009-061-244, 9 July 2009, the fact the defendant and victims’ children aged four and six were present in the house when the murder took place, and that the victim’s body could well have been discovered by the children, was a factor contributing towards a finding that s 104(1)(e) applied (at [28]).

5      See Desai v R [2012] NZCA 534 at [53]-[62] and R v Christison [2013] NZHC 2813 at [31].

6      R v Rickard HC Dunedin CRI-2007-012-4086, 27 June 2008 at [22].

one of threatening to kill; you were given permission to go to Opunake for the purpose only of attending a tangi - you did not attend; you have four convictions for threatening to kill dating back to 2008; in December 2008 you assaulted Mr Bishop and threatened to kill him; and you were convicted for injuring with intent to injure in 2011.7

[44]     Once this point is reached, the question is whether a minimum term of 18

years’ imprisonment would be manifestly unjust.

Manifestly unjust?

[45]     The question of injustice is an overall assessment, taking into account your personal circumstances, the circumstances of the offending, and the sentencing purposes  and  principles  set  out  in  the Act.8      The  injustice  must  be  clear  and

demonstrable, but not to the extent of being rare or exceptional.9

[46]     The most relevant factor here is your mental illness.  The case law indicates that mental health may justify a reduced sentence in two ways.   It can be a factor which reduces culpability and it can also mean that a sentence of imprisonment will be disproportionately severe for the particular offender.10

[47]     Prior to your offending you had no contact with mental health services.  From the period spanning November 2013 to August 2014, you were assessed by seven different psychiatrists for the purposes of assessing whether you were fit to stand trial  and  whether  you  were  criminally insane.11      In  two  reports  written  on  10

February 2014 and 18 March 2014, Dr Tracey Heads opined that you were unfit to

stand trial.  However, three other psychiatrists, in reports dated 4 June and 5 June

2014, considered that you were fit to stand trial.  And in reports dated 6 August and

7      I do not consider it is appropriate to take into account some of the factors referred to as additionally aggravating by the Crown, such as the fact that the offence involved actual violence and use of a weapon, and took place in front of Mr Bishop’s son, because they are inherent in the finding that the offending was committed with a high level of brutality and callousness under s

104(1)(e).

8      R v Williams [2005] 2 NZLR 506, (2004) 21 CRNZ 352 (CA) at [55].

9      At [63] and [67].

10     E (CA6890/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411 at [68] and R v D [2014] NZHC

2272 at [43].

11     That is, “insane” within the meaning of s 23 of the Crimes Act 1961.

10 September 2014, Dr Peter Dean and Dr David Street found that you would be unlikely to sustain a defence of insanity at trial.

[48]    Despite the specific purposes for which these reports were compiled, they contain information on the state of your mental health which is relevant to the sentencing process.

[49]     Six of the psychiatrists considered that you suffer from a psychotic illness, most likely schizophrenia, which is characterised by auditory hallucinations, some visual and taste hallucinations, and an extensive, bizarre paranoid belief system.  In particular, you believe in a group of people called the “snake people”, who are like demons and are related to the snake from the Bible story of Adam and Eve.

[50]     You began to hear the voices of the snake people in your head on a daily basis around eight years ago.  You report that these snake people live in Opunake, they infect people with “goo” and rape and pillage.   You say these voices would blame you for things and tell you to do things, such as engage in fights.  You believe you can tell who in the Opunake community is a snake person. You believed that Mr Bishop was a snake person.  However you were unable to explain how those ideas lead to his murder. You said that homicide is wrong, you did not want to harm others and you did not believe that being a snake person was sufficient reason to kill them. You said you did not believe Mr Bishop deserved to die.  You implied that alcohol was causally related to the offending, telling the psychiatrists that it would not have happened if you had been using methamphetamine rather than drinking.

[51]     Several psychiatrists spoke to family members and Opunake residents, and reported that there was a consistent story of a change in your demeanour over the past five to six years.  Those people said you displayed strange behaviour as though you were responding to hallucinations; you would talk to yourself and told them you could see things.

[52]     Since receiving antipsychotic medication, your symptoms have improved. As well as schizophrenia, other diagnoses made by the psychiatrists were paranoid personality disorder and extensive polysubstance abuse.  These disorders reflected a

disrupted and socially disadvantaged childhood with impaired attachment to your caregivers.  You began smoking cannabis at age 12 and drinking alcohol at age 13, getting drunk several times a week.   You first began using methamphetamine in

2001.  You have taken many different drugs over the course of your life.  Several psychiatrists noted a possible link between your methamphetamine abuse and your psychosis.  Dr Dean also noted, however, that there is a family history of psychosis (your father requiring long term psychiatric care) which would make you more vulnerable to psychotic illness.

[53]     Dr Street, reporting in September, considered that there were a number of inconsistencies in your account of events and experiences (as recounted to the different psychiatrists), whereas those experiencing hallucinations rarely confuse the details. He said there were also inconsistencies in your memories or lack thereof.  In his view, those issues strongly suggested malingering; in other words, that you were fabricating symptoms.  However, the other psychiatrists did not report any signs of malingering.   Dr Dean, reporting in August, said that because you presented a complex delusional system which was not intuitively simple to malinger and did not involve symptoms a lay person might attribute to schizophrenia, he considered that malingering was unlikely. He opined that you were “labouring under a disease of the mind” at the material time of the offence.

[54]    Six of the reporting psychiatrists recommended continued comprehensive psychiatric treatment.

[55]    I do not consider it possible, based on these reports, to draw any firm conclusions as to how your mental illness can properly be said to have affected your culpability for the murder of Mr Bishop.  However, taking into account your mental and  physical  health  issues,  I  am  satisfied  that  imprisonment  is  likely  to  be

disproportionately severe for  you.12     I must also acknowledge your guilty plea,

which saved the witnesses the trauma of  testifying at  trial, and  the Crown  the expense of a defended trial.13     In your case your guilty plea is accompanied by

12     Sentencing Act 2002, s 8(h).

13     See R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 at [67]-[68] where the Court of Appeal discusses the importance of recognising a guilty plea when setting the minimum term of a life sentence for murder.

remorse for your actions and the effect of them on your victims and community. Lastly, I take into account that one of the purposes of sentencing is to assist in rehabilitation and reintegration.14

[56]     Considering those factors, I am satisfied that to impose a minimum term of

17  years’  imprisonment  would  be  manifestly  unjust.     I  accept  the  Crown’s submission that a discount of one year to recognise your guilty plea and two years in respect of your mental health issues is appropriate.  I consider that a minimum period of 15 years’ imprisonment is appropriate in all the circumstances.

[57]     Mr Mareikura, please stand.   On the charge of murder to which you have pleaded guilty you are sentenced to life imprisonment.  You are to serve a minimum

period of 15 years’ imprisonment.  Stand down.

Thomas J

14     Sentencing Act 2002, s 7(1)(h).