R v Marinovich
[2020] NZHC 1160
•29 May 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-090-630
[2020] NZHC 1160
THE QUEEN v
MARTIN MARINOVICH
Hearing: 29 May 2020 Appearances:
RMA McCoubrey and EAM Mok for Crown S Tait and MW Ryan for Defendant
Sentence:
29 May 2020
SENTENCING NOTES OF WALKER J
R v MARINOVICH [2020] NZHC 1160 [29 May 2020]
Introduction
[1] Martin Marinovich, you were found guilty of murder after a trial before a jury between 17 and 25 February 2020. The victim was your mother, Noeleen Marinovich.
[2] Before I begin my sentencing remarks, I wish to acknowledge again the presence today of Mr Mate Marinovich and Ms Janet Daniel. We have heard their moving statements. It is clear that family and friends are grieving and they will continue to suffer deep grief. I extend to them the heartfelt sympathy of this Court.
[3] As Mr Tait has properly acknowledged on your behalf, the only sentence I can impose on you is one of life imprisonment.1 Such a sentence is the default sentence for murder unless manifestly unjust. It is impossible to displace that presumption in your case.2
[4] The issue I must decide today is the number of years you must serve before you may receive parole. This is the minimum term of imprisonment. The Crown says that yours is a case which requires a minimum term of at least 17 years. Mr Tait on your behalf submits that I should consider significant aspects of your recent diagnosis of Autism Spectrum Disorder (ASD) which mean that the facts and circumstances fall short of requiring a minimum term of 17 years.
[5] Your defence at trial was lack of murderous intent. You asserted that you did not intend to kill your mother when you put her hands around her neck, and that you believed she was dead when you struck her with a hammer. Your counsel argued that this was properly a case of manslaughter. That was rejected by the jury, who determined that all the ingredients of murder were proven beyond reasonable doubt. In particular, it can reasonably be concluded that the jury accepted that the operating cause of your mother’s death was the blows to her head because of the evidence of defensive wounds to your mother’s arms.
1 Sentencing Act 2002, s 102.
2 It is only in exceptional and rare cases that a sentence of life imprisonment for murder would be found to be unjust. R v Rapira [2003] 3 NZLR 794 (CA).
Your Offending
[6] First, I must turn to the facts of your offending. I appreciate that these are well known to you. I also recognise that it will be painful for everyone to be reminded yet again of these events. However, sentencing is a public function – carried out for and on behalf of the public. Therefore, it is necessary to set these matters out.
[7] You and your mother lived together in a small unit on the family homestead in Oratia. You were an only child. The circumstances in your life, particularly your young life, were tragically sad. You both lived off your mother’s sickness benefit. You have never worked. Your mother was very dependent on you and you had a close and loving relationship. You had started University some years ago but dropped out without telling your mother or family. She believed you were still pursuing studies in law and was immensely proud of you. You were her world and I suspect that you feared disappointing her. This led to some background anxiety on your part that your deceit might be discovered by your family. The lie became embedded in the fabric of your life and you struggled to find a way to reveal the truth.
[8] Your mother suffered from many physical and mental health issues following personal tragedy in her life. In the lead up to the offending your mother was particularly unsteady on her feet, she experienced falls, shortness of breath and incontinence. A week before her death she had been admitted to hospital. She was diagnosed with a lower respiratory tract infection, influenza and mild lithium toxicity. She was discharged the day before the offending. At the hospital when visiting, you were observed to be acting strangely and “very agitated”. You indicated to a close friend of your mother’s that you could not cope anymore.
[9] In the months leading to your offending you had visited your own doctor because you were feeling depressed and you were prescribed an antidepressant medication. There was no further follow-up. You too had been physically unwell with the same virus your mother had been hospitalised for. You reported that you slept only 4-5 hours per night in the weeks leading up to your offending. These factors no doubt added to the long-term stress and strain you were experiencing.
[10] At the time of her discharge your mother’s care needs were very high – far higher than someone of your relative youth and inexperience should ever have had to deal with. You were having to assist her to go to the toilet. You were temporarily using a chemical toilet because the main toilet in the house was broken. These were acute additional stresses in your life. The fact you were not coping is supported by the state of your shared living environment – it was cluttered and it was dirty. In contrast, your room in the house was generally organised.
[11] On the evening in question you and your mother argued at home in the lounge. During the argument, you placed your hands around your mother’s neck in an attempt to strangle her. You then picked up a hammer from a nearby bookshelf and struck her at least ten times to the head. The evidence of the pathologist, Dr Charles Glenn, was that Noeleen had defensive wounds to her arms and hands, suggesting that she was still alive when you struck her. The blunt force injuries were not survivable.
[12] After the attack you left your mother lying on the floor of the lounge. You removed your clothes, showered, and changed into fresh clothing. You then drove and ended up at the train station, where you called 111 and told the call operator that you thought you had killed your mother. You said, “we got into an argument…I got so angry…I just snapped…I think I tried to strangle her and then I hit her in the head with a hammer”. Police arrested you at the train station in the early hours of the morning where you repeated the account.
Victim Impact Statements
[13] I have had the benefit of reading and hearing two victim impact statements from your uncle and from a very close friend of your mothers. I have also read a statement from your mother’s sister.
[14] Your uncle describes how close he was to your mother and how lonely he has been since her death. He says it is impossible to describe the emotional harm caused by her death – the sense of betrayal, the hell of the Court process, all of which has changed him irreparably.
[15] Ms Daniel too speaks eloquently of the true tragedy of what has happened – that there are two people – you and your mother – who were devoted to each other and have now essentially lost their lives because of these events.
[16] Your aunt expresses her concern about you and the hope that you will have help to adjust. All continue to support you which is testament to their strength of character.
Summary of Crown Submissions
[17] The Crown contends there were aggravating features of your offending. They say that s 104 of the Sentencing Act 2002 (the Act) applies. This means, if that is correct, that the minimum period of imprisonment must be set by law at 17 years. That is because of the high level of brutality and callousness involved given its sustained nature, involving strangulation and the use of a hammer to inflict multiple blows, consistent with an intention, the Crown says, to inflict grave harm. The Crown also places weight on your mother’s particular vulnerability given her age, poor health, and the fact that she was so reliant on you.
[18] The Crown says this is not a case where it would be manifestly unjust to impose a minimum period of 17 years. To the extent they say your ASD and other personal circumstances are mitigating factors, they contend that they are not sufficiently powerful to reach the threshold of manifest injustice, and do not mitigate your offending because your ASD was not causative of the offending. This, it is said, distinguishes your case from other similar cases.3
[19] In the event the Court concludes that s 104 is not engaged, the Crown submits that the appropriate minimum period is in the range of 15-16 years’ imprisonment.
Summary of Defence Submissions
[20] Your counsel, Mr Tait, properly acknowledges that a sentence of life imprisonment is appropriate.
3 R v Merritt [2017] NZHC 232; R v Tu [2016] NZHC 1780.
[21] He submits that s 104 of the Act is not engaged for two reasons. First, the murder was not committed with a high level of brutality in the legal sense; and your mother was not particularly vulnerable because of her poor health. In particular, drawing on a number of other cases involving the same or similar manner of death, Mr Tait submits that this case does not involve the high level of violence and brutality required to cross the s 104 threshold.
[22] In the event that s 104 is engaged, Mr Tait submits that a minimum period of 17 years would be manifestly unjust. He says that your undiagnosed ASD should be considered as it sheds light on the relevance of deterrence, your overall moral culpability, and will play a role in the impact of a sentence of imprisonment on you. He submits that the appropriate minimum period would be around 14 years’ imprisonment.
Personal Circumstances
[23] At the time of offending, you were 28 years old. You were unemployed, although your family believed you were studying law at the University of Auckland. You have no criminal history, you have no history of violence. On the contrary, you appeared to have a loving relationship with your mother for whom you deeply cared.
Provisional Advice to the Court Report
[24] I have received a pre-sentence report. The report writer described your expressions of remorse at that time as superficial, and that you exhibited an apparent lack of insight into your offending such that she considered you to be at a high risk of reoffending. But in my view, these comments need to be considered alongside the comprehensive reports from Dr Duff. Dr Duff is a registered doctor with vocational registration in psychiatry. She has long experience in forensic psychiatry and is employed as a Deputy Clinical Director in a local DHB in a forensic mental health service.
[25] Dr Duff’s reports set out in comprehensive detail her diagnosis of your moderate-severity Autism Spectrum Disorder. She explains it this way:
Autistic Spectrum Disorder is a multifactorial disorder with many potential causes including a genetic predisposition and exposure to medication prior to [your] birth are likely to be the causative factors in this case. Autistic spectrum disorder arises from before birth and is not a consequence of lifestyle choices but rather a pervasive and intrinsic difference in the way an individual brain is ‘hardwired’ to interpret and interact with the World.
[26] ASD had not previously been picked up by anyone around you possibly because you are at the high functioning end of the spectrum. Although you have good intellectual functioning, you have been described as a quiet man whose thinking is rigid and linear, without cognitive flexibility. Dr Duff also considers that you have “significant deficits” in your social communication skills, a “narrowed repertoire of interests, and have a limited range of coping strategies”. You led a routine-driven life, repeating patterns of activities such as chores, shopping and making meals with a self- imposed timetable. You also led an insular life. You reported to her that you have no friends or social life outside your home, yet do not consider yourself lonely. It appears most of your social interactions were with your mother and your uncle.
[27]Dr Duff explains the relationship between ASD and your offending in this way:
[Your] life has been blighted by [your] moderately severe impairment that has rendered [you] unable to adapt when a culmination of stressors occurred in February 2019…creat[ing] a perfect storm that exceeded [your] capacity to cope.
Sentencing Approach - Principles of Sentencing
[28] I turn now to the sentencing approach I must follow. First, I must impose a life sentence. The absolute minimum period must be 10 years unless it would be manifestly unjust to do so.4 No one contends it would.
[29] If I consider the Crown is correct that the murder was committed with a high level of brutality or that your mother was particularly vulnerable, I must by law impose a minimum period of imprisonment of 17 years, unless that would be manifestly unjust.5
4 Sentencing Act 2002, s 102(1).
5 Section 104(1).
[30] In fixing a minimum period I must have regard to the principles and purposes of sentencing: namely, the need to hold you accountable for what you have done, to denounce your conduct and deter you and others from committing the same or similar offences and protection of the community. I must also consider the effect on Noeleen’s wider family and friends who are clearly also victims of your offending. This is very serious offending, yet I must not impose a sentence that is crushing; as far as possible, the Court is required by law to assist in your rehabilitation. The first step in that assessment is to determine culpability in relation to what the law calls the “standard range of murders” and this takes into account aggravating factors set out in s 104 of the Act and any mitigation.
[31] Mr Marinovich, I have reached the view that a minimum sentence of 17 years would be manifestly unjust in your case, and I now explain why.
Is section 104 of the Act engaged?
[32] I consider the answer is yes. Your offending includes several aggravating features. There are no mitigating features relating to your offending, a point which is accepted.
[33] All murders in some sense are brutal, cruel, depraved, or callous. But to meet the threshold under the Act those factors must be present to a high degree. Indeed, for a s 104 factor to apply it should be exceptional. The Court of Appeal has said that “brutality” is “savage violence”, “cruelty” or “callous indifference”, and “callousness” is “insensitive and cruel disregard for others”.6 Callousness involves a lack of feeling, empathy and sensibility; a “numbness of the soul”.7
[34] While there is no exact parallel in the numerous authorities referred to me by both defence and the Crown, what is clear is that this threshold is set very high – a sad reflection on the extent of violence in our society. The “high level” requirement means there will be distinctions drawn between different murders depending on the extent of brutality, cruelty or callousness.
6 R v Gottermeyer [2014] NZCA 205 at [78].
7 R v Beazley [2019] NZHC 672 at [36].
[35] I have concluded that both ss 104 (1)(e) and (1)(g) are engaged in this case. In my assessment, your offending was brutal in both the legal and ordinary sense because it was a frenzied attack over a sustained period, involving both strangulation and violent hammer blows to your mother’s head. I am satisfied that it reached the degree of savage violence which the appellate Courts have required before the section is engaged.8
[36] I am also satisfied that your mother was particularly vulnerable. She had been discharged from hospital just one day before, having been diagnosed with a lower respiratory tract infection and flu. She was dependent on you, she trusted you. There was no reason for her to be guarded. She was 59, but her physical ailments meant that she was frail; unsteady on her feet, she had trouble walking. She was unable to take care of her own basic needs. She was in all respects defenceless. In my view, your mother’s vulnerability meets the threshold.
Is an MPI of 17 years manifestly unjust?
[37] Whether or not an minimum period of 17 years is manifestly unjust requires me to consider all the factors that make your offending more or less serious, including your own personal circumstances. It is a discretionary assessment that requires me to consider whether your case falls outside the legislative policy that certain murders are so sufficiently serious to warrant at least a 17-year minimum period.9
[38] There are four personal mitigating factors in my assessment of your offending which make a 17 year minimum period manifestly unjust.
[39] First, this is your first offence. You have a clean criminal record with no previous convictions. You have no history of violence. This was out of character.
[40]Secondly, there was no premeditation nor planning in your offending.
8 R v Merritt [2017] NZHC 232; R v Morris [2012] NZHC 616; R v Smith [2016] NZHC 2581; R v Schofield [2015] NZHC 2109; R v McIsaac [2016] NZHC 1544; R v Tait HC Tauranga CRI-2010- 070-5571, 16 September 2011; R v Rukuata HC Auckland CRI 2005-092-013891, 29 May 2007; R v Seau HC Auckland CRI 2006-092-018372, 17 April 2008; DD (CA595/2014) v R [2015] NZCA 304; R v Findlay [2017] NZHC 2551.
9 Malik v R [2015] NZCA 597 at [32].
[41] Third, I am satisfied that you are remorseful. I am cognisant that the expression of remorse may be communicated less emotionally than ordinarily expected because of the characteristics of your autism. Your “upbeat presentation” towards the PAC Report writer (as interpreted by the writer) is not necessarily inconsistent with your remorse, but heavily informed by your ASD.
[42] You informed the report writer that you feel “overwhelming feelings or remorse daily, usually at night”. You also called the police shortly after the offending in a distressed state where you admitted killing your mother. You have written to the Court stating that you loved your “Mum” with all your heart, and that you struggle daily with deep regret at the unimaginable pain and suffering you inflicted; that you take full responsibility and wish you could turn back time. While those expressions of remorse are late in the day, I accept Dr Duff’s view that your denial of aspects of your offending which you find impossible to understand – in other words murderous intent, stems from the rigidity of thinking which is also characteristic of your autism.
[43] It is well accepted that a defendant’s mental disorder may be a relevant mitigating factor in that it may reduce moral culpability.10 Although there is not enough evidence to show that your ASD ‘caused’ the offending, I am prepared to recognise that the particular characteristics played a significant role and that this should be reflected in your sentence.
[44] Clearly, you have grave difficulty managing emotions and handling situations. Your lack of capacity to respond appropriately to the stress of your living situation became acute in the days or even weeks leading up your offending. Even before then, you were in an intolerable situation for a young man, with a heavy responsibility. You had socially isolated yourself; this explains why no one else was able to pick up the signs of your disorder. You were unable to reach out for assistance as a consequence.
[45] Your counsel points to a number of cases where the Court has considered the effect of isolation resulting from undiagnosed and untreated ASD.11 He submits that this factor is relevant for two reasons; first it diminishes the importance of deterrence
10 E (CA689/2010 v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [70].
11 Nixon v R [2016] NZCA 589; R v Merritt [2017] NZHC 232; R v Tu [2016] NZHC 1780.
(and I would add to that denunciation in this particular case); and secondly, it means that a lengthy sentence of imprisonment will weigh more heavily on you.
[46] As Dr Duff noted, people with ASD may often have difficulties with both verbal and non-verbal social communication, difficulties in interpreting others’ emotions, and are more likely to live in a rigid, repetitive and very structured way. Courts recognise that ASD may reduce the moral culpability, as distinct from an offender’s legal responsibility, provided there is some causative link between the illness or condition and the offending. It will not fully exculpate a defendant. But I accept that it provides important context and sheds light on the appropriate sentence.12
[47] There are two particularly relevant cases in New Zealand that have considered the impact of ASD on sentences for murder. In one, the Court reduced the minimum period by 20 per cent to reflect the defendant’s young age, previously clear record, and his ASD condition “as part of [the offender’s] overall psychology”.13
[48] In the second, the mental disorders were decisive factors militating against the full application of s 104 because he was not acting with the usual even-handed understanding and foresight of a mentally well person.14 Rather, in that case the offending occurred at a time when the offender was cut adrift from his normal support structures and susceptible to his underlying mental frailties.15 The offender in that case also struck the victim with a hammer but had planned his attack.
[49] I mention these cases because although my task is to assess the appropriate sentencing response on the specific facts of your case, it is helpful to cross-check my assessment of culpability with other cases. This is because broad consistency in sentencing is important. Ultimately, however, fixing the minimum period of imprisonment is not an exact science, it requires me to exercise my own judgment.
[50] I therefore conclude that there must be allowance for your record and for your condition. I am also minded to include consideration of your age. While you are in
12 Nixon v R [2016] NZCA 589 at [42]. Also cited in R v Merritt [2017] NZHC 232 at [89].
13 R v Merritt [2017] NZHC 232 at [97].
14 R v Tu [2016] NZHC 1780.
15 At [29].
your late 20’s, my reading and understanding of Dr Duffy’s report and the PAC Report would suggest that your lack of life experience and social connection is likely to mean that you lack maturity. I am satisfied that together these mitigating factors support a minimum period of imprisonment of 14 years and that it would be manifestly unjust to uplift this to 17 years on the basis of s104.
[51] For completeness, I add that I am not satisfied that the expert evidence supports the submission that a sentence of imprisonment would be particularly hard on you. While your ASD may make it more difficult to manage social interactions in prison, the reports indicate that you are coping well having settled into the routines of prison. I direct that Dr Duff’s assessment be provided to Corrections to assist in your custodial care.
Sentence
[52]I now hand down my sentence. Martin Marinovich, please stand.
[53] For the murder of Noelene Marinovich, I sentence you to life imprisonment with a minimum non-parole period of 14 years. That is not a finite sentence. The effective sentence is life. Fourteen years must pass before you can even be considered for release. Whether and if so you are released after that period is a decision for the Parole Board.
Three Strikes
[54] You were provided with a first strike warning on your conviction, it is unnecessary to repeat that now.
[55]Please stand down.
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Walker J
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