R v Marsh

[2021] NZHC 2804

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-009-002165

[2021] NZHC 2804

THE QUEEN

v

JUAN ISSACS MARSH CURTIS TAILA WEALLEANS

Hearing:

19 October 2021

Appearances:

K White for the Crown

P B McMenamin for the Defendant Marsh C M Ruane for the Defendant Wealleans

Date:

19 October 2021

SENTENCING REMARKS OF NATION J

[1]                 I will begin my remarks by thanking those who have provided victim impact reports, especially those who were able to read the reports in Court. It is important for me, as the Judge, just to be reminded how a crime like this has affected people. But it is also very important that both these defendants heard what you had to say about how your family has suffered.

[2]                 In this case, both Mr Wealleans and Mr Marsh have obtained reports referring to their background, their family background, the way that they each suffered through various things that happened in the past. They are asking for the Court to take those matters into account in the sentence that I have to impose. Well, Mr Marsh and Mr Wealleans, you have heard how your actions have impacted on Brendon Ross’s family

R v MARSH & WEALLEANS [2021] NZHC 2804 [19 October 2021]

in ways that they are going to have to carry with them for the rest of their lives. They won’t be asking for a credit from a Judge because of those matters. You are able to ask for a credit in the situation you are in. But, just bear in mind that your asking for consideration of the way you suffered in various respects at the early stages of your life, just think how this family have suffered as a result of your actions.

[3]                 I want to say to you and especially to the family that you need to understand that the lawyers have provided me with a considerable amount of written material that I have already considered and have had time to think about. A probation officer has spoken to each of these men and has provided me with information about that. You have heard that special reports have been obtained for each of them. So, I have had time to carefully consider what I must do but obviously I am assisted also by having my attention drawn to the matters that you heard referred to me today.

[4]                 Brendon Ross had, for at least a year, lived in a third floor unit of a Kāinga Ora housing complex in Christchurch. A close friend of his, Mr Parker, lived in a second floor unit. Over months, there was some sort of ongoing feud between Mr Ross, Mr Parker and a Ms Kim Fisher who lived in a unit on the ground floor. Not long before the events of 4 March 2020, Ms Fisher made a complaint to the Police that Mr Ross and Mr Parker had been threatening her with a firearm. The Police found there was no evidence to support the firearm aspect of the complaint. But, from what I heard, there certainly were occasions when Brendon Ross and Mr Parker were abusive of Ms Fisher.

[5]                 Mr Marsh, you did not live at that housing complex. You had your own accommodation several kilometres away.

[6]                 You were friends with Ms Fisher. You often visited her and would park your Nissan X-Trail vehicle not far from her unit.

[7]                 A few days before 4 March 2020, you found someone had made a scratch almost the full side of your vehicle while it had been parked at the complex. You were extremely angry at this. You blamed Mr Ross and Mr Parker for what happened and decided you would punish them for what you thought they had done. You enlisted help to do this. You contacted a senior member of the Mongrel Mob who you obviously knew.

[8]                 On 3 March 2020, you and Ms Fisher exchanged text messages about the scratching of your Nissan X-Trail. In one of those texts you said “kama is coming around with bark and bite”. You were referring to your having help with what you planned to do from someone from the Mongrel Mob.

[9]                 On the evening of 4 March 2020, you took Ms Fisher out of Christchurch to Spencer Park to stay with a friend of yours. You had earlier exchanged a text message with Ms Fisher where you had queried her as to the numbers of the units in which Mr Parker and Mr Ross live, 17 and 10. She responded and confirmed those were the units, with an emoji indicating that she knew you needed those numbers.

[10]             At around 8.23 pm on 4 March 2020, you drove to Bromley. You collected Mr Wealleans from where he was staying in a sleepout at a Mongrel Mob pad where the senior member of the Mongrel Mob, who you have been in contact with over what you were going to do, lived. You and Mr Wealleans stopped at a bottle store. You, Mr Marsh, were armed with a knife. Mr Wealleans, you had a hammer.

[11]             When you arrived at the complex on Riccarton Road, you parked around the corner, some distance from where you normally park when visiting that address. You both walked up the stairs of the block. On the first floor you tried the door to Mr Parker’s unit but it was locked. You then went up a further floor to Mr Ross’s unit. Inside that unit, you attacked Mr Ross. You, Mr Wealleans, hit Mr Ross on the head with the hammer. You, Mr Marsh, stabbed Mr Ross. One of the stab wounds was to Mr Ross’s carotid artery, causing massive and fatal bleeding. Mr Parker, from his unit on the first floor, heard Mr Ross’s screams for help and went up to help his mate but the door was locked.

[12]             Mr Ross suffered two substantial wounds to his body. One of these penetrated his body just under his rib cage and punctured his liver. It was 11 to 13 cm deep. There were at least 25 cuts on his face, neck, torso, arms and hands. He suffered blunt force trauma to his head and back. These were consistent with the blows from a hammer. The blow to the back resulted in two broken ribs. Mr Ross had 11 cuts to his hand, consistent with his having tried to protect himself in some way while being attacked with a knife.

[13]             On finding Mr Ross’s door locked, Mr Parker went back to his unit to collect his key for Mr Ross’s unit. As you both went downstairs and out of the building from Mr Ross’s unit, Mr Parker came towards you but, faced with the two of you, retreated back into his unit and managed to close the door.

[14]             After you left, Mr Parker went to Mr Ross’s unit, let himself in and found Mr Ross dead. There were extensive blood stains near the entranceway to the unit, consistent with Mr Ross having been stabbed almost as soon as you both entered his unit. Mr Parker called an ambulance at 10.45 pm.

[15]             You both then left that area. Mr Marsh, you dropped Mr Wealleans off somewhere near the Mongrel Mob pad. You then drove up to Evans Pass and the Summit Road and discarded the knife and some other items in that area including clothing covered in blood.

[16]             In the early hours of the next morning, at 1.14 am, you sent a Facebook message to the Mongrel Mob friend “seig, cuzzy. Done. Hail Curtis R Dog”. This was Mongrel Mob language. You Mr Marsh were recognising the assistance you had from Curtis Wealleans.

[17]             You Mr Marsh were located by the Police and interviewed on 5 March 2020. During that interview, you admitted using a knife and said you “did the business”.

[18]             Mr Wealleans, you were interviewed by the Police some two weeks later. Initially, in a video interview, you denied having been involved in the attack but you ultimately made a written statement through questions and answers. You admitted going to the address with another person, locking the door and using a hammer to hit Mr Ross in the head. You said you did that because you had been asked to help with something.

[19]             Mr Marsh, you are 59. Mr Wealleans, you are 25. You both now face a maximum sentence of life imprisonment.

[20]             This case well illustrates just how destructive involvement with a gang like the Mongrel Mob can be. It is a calamity, firstly, for someone who becomes the victim of extreme violence as Mr Ross was but also for those who perpetrate violence.

[21]             Mr Marsh, at the time of this offending, you were aged 58. You had no convictions for any offence of violence since you were convicted for assault in 1981 and 1982. Your last conviction had been in 2011 for careless driving. You had a good job and the respect of your employer. You had the support of your daughter. She did not want you to do anything like this. For about five years you had been employment as a truck driver and, as I said, you were valued as an employee.

[22]             You were not caught up in any gang conflict. You were understandably angry that someone had scratched your car and you believed it was Mr Ross. But, anyone with any sense and concern for you would have known that, if you were to stab someone because of what they had done, you would be one of the biggest losers. They would have told you not to do anything stupid. The senior member of the Mongrel Mob you had contact with gave you no such advice. Instead, he obviously arranged for you to have the support of Mr Wealleans in what it was that you planned to do.

[23]             Mr Wealleans, at the time of this offending you were aged 23. You had a number of convictions for dishonesty but your only convictions for any form of violence as an adult were on two charges of male assaults female for offences committed on 5 November 2015. You had no previous association with Mr Marsh before this night. You had not been involved in any way in whatever dispute Ms Fisher had with Mr Ross and Mr Parker. It was only through your involvement with the Mongrel Mob that you agreed to go with Mr Marsh in support of this. Perhaps your involvement in that has earnt you respect and standing with the Mongrel Mob but I suspect that you recognise it is not something you can be proud of and that what you did was senseless. And, I say that having heard the comments that were made by a member of Mr Ross’s family where they talked of what they thought was the way, in a sense, you sort of showed off to people in the gallery at the end of the trial. I have seen evidence of that sort of thing happening with gang members before. It is an aspect of the way gang members can try and play to the audience but I do not accept

that, in your case, it necessarily reflects the true way you have thought about your involvement in what you did.

[24]             In dealing with the argument over the admissibility of your written statement to the Police, I heard you talking to one of the detectives after your DVD interview. You were torn as to whether and what you should say to the Police. You did not know what the right thing was to do.

[25]             In that conversation you told the Police that you had gone in with a hammer but you did not have the knife that the Police told you had been used. The Police wanted you to make a statement and you said:

Look I don’t know. I don’t know what to f…ing say. I’m a f…ing, I’m a gang member. Meant to be. F…ing hell. I’m a father, I shouldn’t even be here. I should have just f…ing moved back up north.

[26]You wanted to make a phone call to your kids.

[27]             The pre-sentence report tells me that you presented as a young man who, despite your current situation, has dreams, hopes, goals and aspirations for the future, that you know you have let your children, your family and yourself down with your actions. You would not be here if a more senior person with the gang had recognised how you would be one of the big losers. The senior Mongrel Mob member, at whose place you were living, should have cared enough about you to have made sure you did not get involved in someone else’s argument that had nothing to do with you, even as a gang member. You did not have the benefit of that support.

[28]             So, Mr Marsh and Mr Wealleans, your association with the Mongrel Mob has had tragic consequences for each of you.

[29]             But, I need to recognise that the most tragic consequences have been for Brendon Ross, a father of four children, a partner, a brother, cousin and a friend. Brendon Ross was killed as a result of a senseless act of violence out of all proportion to any sense of grievance you, Mr Marsh, had over the scratching of your vehicle.

Mr Marsh

[30]             Mr Marsh, I begin by considering the sentence for you. And I need to say for the family that I recognise that no sentence I can impose will compensate for the loss you have suffered. No sentence I impose can reflect the feelings and recognise all the feelings you have about what happened.

[31]             In sentencing you Mr Marsh, I have to do that according to the provisions of the Sentencing Act 2002 and with guidance from previous judgments of the Court of Appeal.

[32]             You have to be sentenced to life imprisonment. And, that means what it says. Even if, at some time, you are released from prison, you will always be on parole. And, if you are released on parole and you offend or in any way are seen as being a risk to the public, you can be recalled to prison. It will be for the Parole Board, if and when you are eligible for parole, to decide if the community can be safe with you out on parole.

[33]             First, I must consider the degree of culpability in your case to determine the minimum term of imprisonment that would be imposed with due regard to sentences imposed in other cases. The Crown submits that s 104 of the Sentencing Act applies and, because of that, the starting point is 17 years or more. Your counsel has submitted that s 104 does not require a minimum sentence of 17 years and that the minimum period of imprisonment would be somewhere in the range of 13 to 15 years. And, all those in Court will understand that we are talking about a minimum period of imprisonment before you can ask for parole. It is not necessarily when you will get parole.

[34]             In arguing for a reduced level of culpability, your counsel suggested some credit should be given for what Mr McMenamin submitted was extreme abuse of Ms Fisher, her fears of Mr Ross and Mr Parker, and the way you were motivated by sympathy for her. I do not consider those matters reduce your culpability. In a number of respects, I was concerned with the credibility of Kim Fisher as a witness. I do not proceed on the basis that either Mr Ross or Mr Parker caused any physical injuries to her. I do not accept that she was taken to the address of your friend on the night of the

murder through fears for her safety at that time. I consider she was taken to that address because you knew what you were going to do and you did not want her to be associated with what you were going to do.

[35]             This murder occurred as a result of a premeditated attack. Whether it was premeditation for that to be an element relevant to s 104, I will comment on later. But, this was not a homicide that resulted from a spur of the moment reaction to a situation you were in. Aggravating features of the murder included that it was committed with the support of your co-offender Mr Wealleans. It involved home invasion. Mr Ross was vulnerable because he was attacked by surprise at night at a time when he had no warning and no real ability to defend himself. Every killing that amounts to murder has to be callous and brutal. This was. You inflicted two deep stab wounds with a knife. The stab wound to Mr Ross’s carotid artery quickly caused him to bleed to death. You were callous in leaving him to die without, in any way, seeking help for him.

[36]There are no mitigating factors as to the offending.

[37]             I consider the appropriate minimum term of imprisonment commensurate with the culpability of your offending, having due regard to sentences imposed in other cases, would be 16 years.

[38]             I must then consider whether there should be any uplift or discount having regard to aggravating and mitigating circumstances as to you personally.

[39]             You have previous convictions for offences of dishonesty and some offences of violence, including offences of possessing a knife in a public place. But, those offences could all now be considered historic. Your last conviction for possessing an offensive weapon was in 1991. Apart from that offence of careless operation of a motor vehicle in 2011, your last relevant criminal offending was in 1991.

[40]             A s 27 report has been provided through your counsel. It was authored by Dr Gilbert and provides information as to your particular family background and the association with the Mongrel Mob which began in your teens. This report is based

largely on what you have told the report writer. The report says you were placed for adoption with an aunt and uncle for the first 10 years of your life and that this was an unhappy placement. At the time, you were treated badly, you misbehaved, were disciplined physically for things like not going to school and running away from home. You suffered particular abuse from older siblings and ended up at a boys homes in your teens where you got into more trouble and suffered some abuse until, when you were about 15, you began associating with the Mongrel Mob in Napier.

[41]             The s 27 report said that, at age 12, you were told the truth about your parents and chose to move back with them, but this did not go well and you were made to feel unwelcome in your family. The pre-sentence report provided by the probation officer says that, at age 12, you returned to the care of your biological parents but you did not fit in. You described your parents as having structure and stability and your siblings as being “goodies”. You confirmed to the probation officer that you and other siblings were raised in a loving a protective home.

[42]             The report suggests that the factors contributing to your offending were instability of care, poor attachment, experiences of violence during childhood, particular abuse, alcohol and drug use, and subsequent gang connections.

[43]             The pre-sentence report however tells me that, after being sentenced to imprisonment in your mid 20s, you realised you needed to leave the gang and the family who had been a factor in your offending up to that point, and you then came to Christchurch from the North Island and have stayed here ever since. The report says you entered into a relationship, took on a father role with her two children, found work as a truck driver and said you never returned to the Mongrel Mob. That report tells me you had made the break from the Mongrel Mob and the associations that had been a significant factor in your earlier offending.

[44]             Your personal circumstances are significantly different from a number of people who have grown up in a difficult and damaging family situation, found refuge in becoming part of a gang and then, under the influence of gang culture, have committed serious offences. You were able many years ago to break away from that culture, even if you did retain some contact with people in the Mongrel Mob. You

realised that the gang environment was damaging for you. But, in March 2020, you decided to use such gang contacts as you did have to assist in brutally attacking Mr Ross. It was your choice to do that. You had the experience, maturity and knowledge to know it was the wrong thing to do. No one was compelling you to make the choices you did, which led to you killing someone.

[45]             The pre-sentence report assesses the likelihood of your reoffending to be low and the risk of you causing harm to others in the near to medium future to be low. Consistent with that, prison records reveal that your behaviour in custody has been without incident.

[46]             However, I accept that the experiences you had in the first 12 years of your life would have been a factor in the choices and decisions you made in deciding how you would respond to someone scratching your car.

[47]             In the case of Waikato-Tuhega v R, the Court of Appeal recently considered whether a discount of 10 per cent on account of s 27 matters had been adequate to reflect the offender’s youth and factors identified in the s 27 report.1 The Court of Appeal considered that the appellant should have received a 15 per cent discount for cultural and personal background matters, and a further 15 per cent discount for youth. So that, with a full 25 per cent discount for a guilty plea, the total discount should have been 55 per cent.

[48]             The cultural matters which the Court identified as being causative of the offending were:

(a)        whānau dysfunction and violence;

(b)       care and protection and youth justice issues arising out of State intervention in the offender’s care beginning at 13 years of age;

(c)        limited education with the offender having been alienated from mainstream education at the age of 13;

1      Waikato-Tuhega v R [2021] NZCA 503.

(d)       alcohol and drug abuse beginning when he was 14; and

(e)        cultural disconnectedness from te ao Māori and his Niuean heritage.

[49]             In contrast to your situation Mr Marsh, the offender there was being sentenced for offences committed when he was 17, 18 and 19 years old.

[50]             As your counsel put it, you have successfully struggled against the negative influences dictated by your upbringing. Mr McMenamin nevertheless sought support from Dr Gilbert’s report for the submission that those problems had not entirely gone away and could be linked to provide the impetus towards your present offending.

[51]             The Court of Appeal’s judgment in Waikato-Tuhega illustrates the degree to which the Court of Appeal is now directing sentencing Judges to discount the starting point sentence for serious offences based on culpability by 15 per cent where Māori have had a difficult start in life which has, in any circumstances, been a factor in the judgements and choices they have made connected to the offending for which they are to be sentenced.

[52]             Relevant to you Mr Marsh is the fact that you are now aged 59. It is likely you will be in prison for a substantial portion of the remainder of your life. Your lack of criminal offending since 1992 also suggests that the risk of your offending, in the way you did with Brendon Ross, is not likely to be repeated. You have not spoken of any real remorse for what you did. As Mr McMenamin said, I appreciate that you are probably a man of few words and it is not easy to put into words just what you feel over everything that happened. I accept also that you have had many months before the trial and before today to come to terms with what you have done and with what the consequences were likely to be. And, it was probably because of that you were just impassive and showed no emotion during the trial. I don’t see that as necessarily reflecting the fact that you were totally uncaring about what happened. You have done your best with the brief letter which was made available to the Court in which you expressed your condolences for the family. And, I accept that you were convicted of the murder on the basis of the recklessness that was involved in what you did and that

you hadn’t necessarily started that night with the intention of killing Brendon Ross. It is a tragedy for him and his family that that is nevertheless what happened.

[53]             Taking all those matters into account and putting aside s 104, I consider the starting point sentence I adopted of 16 years could be reduced by 15 per cent for matters relating to you personally. That would accordingly require me to impose a minimum period of imprisonment of approximately 13 and a half years. But, I must consider s 104 as Parliament has required me to do.

[54]             And, the first issue I must consider is whether this murder was committed with brutality and callousness to a high level.

[55]             I want to acknowledge for the victims of Mr Marsh’s offending how difficult it must be for you to hear me discuss the ways in which Brendon Ross was killed and the assessments I have to make as to, for instance, the degree of brutality or callousness in his murder as if, somehow, the killing of Brendon Ross could be less serious than some other murder which the Court has had to deal with. I acknowledge that, for you, no murder could be more serious and more culpable than the one that has killed the person you have lost. But, I am required by the Sentencing Act and the guidance of the Court of Appeal to sentence Mr Marsh on a much more detailed consideration of this particular case, and to consider other similar cases Judges have had to deal with.

[56]             The stabbing here occurred suddenly, probably immediately upon your entering Mr Ross’s unit. It is likely it was the first stab which severed the carotid artery. Although the stab was likely aimed at the upper part of the body and towards the neck and head area, this was not a situation where a victim was completely prone or helpless and you could carefully aim for the artery and inflict an obviously fatal wound. Had the stab wound missed the carotid artery, it might well not have been fatal. There was another further stab wound but the pathologist said, on its own, it would likely not have been fatal. The numerous cuts to the body were probably inflicted in the course of a brief ongoing struggle. The pathologist accepted that a number of the cuts were of a defensive nature. The stab wound to the carotid artery caused massive bleeding and killed Mr Ross very quickly. You did not inflict further injuries or attack him simply to cause him indignities or to demonstrate the power you

had over him. The killing was consistent with your deciding, out of anger, to bash him and knife him in ways that could kill him without caring whether you did so. Like all murders with a knife, it was callous and brutal but I do not consider that, on that account, the callousness or brutality was of a degree for that to require s 104 to be applied and for a minimum term of 17 years to be imposed.

[57]             In the case of R v Webber, Mr Webber had stabbed a fellow gang member in a brief and intense struggle, inflicting approximately 14 stab wounds to the victim’s chest and arms, a cluster of three wounds to the left side of the victim’s chest, posed a significant and imminent threat to the victim’s life.2 One wound, 10 to 12 cm long, would have likely caused a torrential bleed and was the major operating cause of blood loss. The stabbing occurred in a pre-emptive strike by multiple offenders. The Crown accepted this was not a murder which, by reason of its particular callousness or other circumstances, required a minimum period of imprisonment of 17 years.

[58]             The stabbing which killed Brendon Ross did not have the particular features of a sustained attack or gratuitous acts exhibiting a callous intention to mutilate and disfigure, as was present in cases such as Blake v R, Malik v R and Akash v R.3

[59]             The attack on Mr Ross was definitely premeditated but, for that premeditation to require a minimum period of imprisonment of 17 years, on this basis, I would have to find that it involved calculated or lengthy planning. I consider that what was premeditated and planned was a bashing of Mr Ross and in fact also Mr Parker but I do not consider this was a calculated and lengthy planned killing.

[60]             So, in my assessment, there is one factor, the fact this murder involved the unlawful entry into Mr Ross’s home, that, in terms of s 104(1), requires me to impose a minimum period of imprisonment of at least 17 years unless I am satisfied that it would be manifestly unjust to do so.4

2      R v Webber [2020] NZHC 2328 at [9].

3      Blake v R [2016] NZCA 82; Malik v R [2015] NZCA 597; and Akash v R [2017] NZCA 122.

4      R v Parrish CA 295/03, 12 December 2003.

[61]             I have had regard to the Court of Appeal’s statement in R v Williams as to how I must consider whether a minimum term of 17 years would be manifestly unjust.5 In this case, if s 104 is to be applied, the minimum term of imprisonment will be 17 years. If it does not apply, the minimum term of imprisonment would be 13 and a half years.

[62]I have regard to the Court of Appeal’s statement in Malik v R:6

A lesser minimum period would be warranted where the judge decides as a matter of overall impression that the case falls outside the legislative policy that certain murders are sufficiently serious to warrant at least that minimum period. The full range of sentencing criteria in ss 7 to 9 of the Sentencing Act may inform that overall impression, but because the legislative policy in s 104 must be respected, powerful mitigating factors may be needed to displace the 17 year presumption.

[63]             Approaching matters in the way that the Court of Appeal required me to do and taking into account all the aggravating circumstances of the offending I have identified, the mitigating factors relating to you personally, the need to hold you accountable for what you did, but also recognising the lesser need for deterrence for you personally, I have decided that it would be a manifest injustice for you to be sentenced to a minimum period of imprisonment of 17 years. This means that the minimum period of imprisonment for you will be 13 and a half years. But I stress, for those that are listening, that that is the minimum period that you will serve before you can be even considered for parole. You are going to be subject to a life sentence.

Mr Wealleans

[64]             Mr Wealleans, I turn now to consider the appropriate sentence for you. And, I must first consider the culpability of your offending.

[65]             The Crown suggest that, with the aggravating features of this offending, it is at the upper end of band 3 in the Court of Appeal’s guideline judgment in R v Taueki, that is at the upper end of a range of nine to 14 years’ imprisonment.7 They referred to starting points of 10 years for manslaughter adopted in what they suggested were

5      R v Williams [2005] 2 NZLR 506 (CA).

6      Malik v R, above n 3, at [32].

7      R v Taueki [2005] 3 NZLR 372 (CA).

comparative cases,8 the starting point of 12 years adopted in Griffin v R,9 and the 12 years’ finite sentence referred to in Neketai v R.10

[66]             The Crown submitted your offending was more serious than in those cases, given the way you took part in the actual physical attack on Mr Ross and the high number of aggravating features involved. The Crown suggested a starting point of 13 years’ imprisonment. It suggested a modest uplift would be appropriate given your convictions for male assaults female in 2016, assault and injuring with intent to injure in 2000, and convictions for common assault, injuring with intent to injure and one for aggravated robbery in 2013. The Crown suggest a minimum period of imprisonment of 50 per cent should be imposed for the purposes of s 86 of the Sentencing Act.

[67]             Mr Wealleans, your counsel accepted that the aggravating features of your offending included:

(a)        your actual violence and the use of a weapon;

(b)       unlawful entry into a dwelling place; and

(c)        premeditation in that there was a plan for you to be there to support Mr Marsh, although he suggests your role was to be a bodyguard.

[68]             Mr Ruane asks for a discount on account of matters referred to in the s 27 report obtained for you and your apparent youth at 25 years. Referring to the guideline judgment of Taueki, Mr Ruane suggests your offending could be put at the top of band 2 which is five to 10 years, or the lower end of band 3. Mr Ruane suggests this is not a case where a minimum period of imprisonment is required for the purposes of s 86 of the Sentencing Act and the issue of release before you serve your full sentence is a matter which can be safely left to the Parole Board. He submitted, having regard to the secondary role you played in the actual attack, the lack of evidence of any involvement in the planning of the attack or knowledge of the extent of violence proposed by Mr Marsh, a starting point of something between six and eight years

8      R v Rapira [2003] 3 NZLR 794 (CA); Pahau v R [2011] NZCA 147.

9      Griffin v R [2019] NZCA 422.

10     Neketai v R [2016] NZCA 174.

might be more appropriate, but with a discount of 15 to 20 per cent for s 27 matters and what he suggested was your comparative youth.

[69]             The relevant aggravating features, as identified in Taueki, relevant to your offending are as set out by the Crown. You assisted in an attack of extreme violence. Brendon Ross was stabbed multiple times and suffered deep stab wounds, one of which was almost immediately fatal. In the course of the attack, you hit Brendon Ross hard on the head with a hammer. The blow would not have been fatal but it was a violent blow to the head that must have further rendered him incapable of defending himself against Mr Marsh’s attack.

[70]             There was premeditation, not to the same extent as with Mr Marsh, but you agreed to be taken from Bromley to Riccarton to assist Mr Marsh in bashing Brendon Ross. You armed yourself with the hammer. I do not accept you did so for protection. You used the hammer in the attack on Mr Ross when he was incapable of defending himself and was certainly not attacking either you or Mr Marsh. You told the Police that, as you were going down the stairs, a person, Mr Parker, came out of the door to his unit. You brandished the hammer at him, causing him to retreat back into his unit and shut the door for his own safety.

[71]             Your use of the hammer caused a serious injury to Brendon Ross but you also assisted in an attack which killed him. You assisted in an attack using weapons. I do not accept that you did not know Mr Marsh was armed with a knife as you travelled to Riccarton. You certainly must have known he was armed with a knife and was either using it or had used it at the time you hit Mr Ross on the head with the hammer.

[72]             This was an attack involving multiple attackers. Your offending involved an unlawful home invasion.

[73]             You were not just a bystander in the killing of Brendon Ross, you were there by way of support or encouragement. And, you were an active participant. You entered Brendon Ross’s unit immediately behind Mr Marsh. You shut and locked the door so no one could come to Brendon Ross’s aid. You told the Police you locked the door because someone might come running in. The man was screaming for help. You assisted in rendering Brendon Ross defenceless through hitting him on the head with the hammer.

[74]             As with Mr Marsh, there was callousness in the way you assisted with the attack as you heard Mr Ross screaming and then departed, leaving him to bleed profusely and die.

[75]             In applying the Taueki guidelines and taking into account that death has resulted from this offending, I consider an appropriate starting point for your offending would be 11 years’ imprisonment.

[76]             As the Court of Appeal has said in R v Tai and Everett v R, it is also an appropriate approach to manslaughter sentencing to consider comparable manslaughter cases.11 In R v Madams, the High Court Judge there was concerned with a case where a person had been killed in a group attack. The court had to consider the relative culpability of party offenders.12 Mallon J conducted an extensive review of other cases. She found that:13

Those cases suggest a range of up to eight years for non-physical participants and those whose physical involvement in the attack are minor, lower starting points are available for those whose physical involvement in the attack are minor and can be considerably lower for those with peripheral roles.

[77]             You were however physically involved in this attack. In no way was your involvement minor. I have considered the starting point sentences for manslaughter adopted by the court in cases referred to by the Crown.14 Those starting points ranged from 10 years to 13 years for a member of a gang who had organised a gang attack that led to the fatal stabbing of the victim. I consider a starting point sentence of 11 years’ imprisonment for manslaughter is consistent with the starting point sentences adopted in those cases.

[78]So, I adopt a starting point for your offending of 11 years’ imprisonment.

[79]             Your counsel has acknowledged there could be a modest uplift on account of your previous offending. I have already referred to previous offences and the sentences you received. But, you do not have a significant history of violent offending. In the circumstances, I do not impose any uplift on account of your prior offending.

11     R v Tai [2010] NZCA 598; and Everett v R [2019] NZCA 68.

12     R v Madams [2017] NZHC 81.

13     At [38] (footnotes omitted).

14     Pahau v R, above n 8; Griffin v R, above n 9; and Neketai v R, above n 10.

[80]             I now consider what discount might be applied on account of matters relating to you personally.

[81]             As already referred to, when the Police were speaking to you about your involvement in what happened, you made statements consistent with your feeling bad about what had happened and realising that you had been stupid in becoming involved. In your questions, and question and answer written interview with the Police, your said your mum told you to hand yourself in. You said “I hated the guilt”. You were not proud of what you had done. Consistent with that, you ultimately acknowledged in a written statement the way you had been involved and the way you had used the hammer. I observed you during the trial. And, contrary perhaps to the perception which members of Brendon Ross’s family have, it did not seem to me that you displayed any arrogance about what you had done. You made statements to the Police that indicated that you realised, through being in the gang, you were not leading a life as you wanted to.

[82]             The pre-sentence report said you had expressed remorse for your offending and had displayed insight as to the impact your actions had on Mr Ross’s family and friends. You also knew you had let your children and your family down.

[83]             The s 27 report tells me that you had a troubled start to your life. When at primary school, you and your brother suffered at the hands of a whānau friend. Connected with that, you and your brother witnessed an uncle hitting this person on the head with a hammer by way of retribution. Through this experience, a criminal and destructive way for someone to exact retribution or revenge was demonstrated to you, just as you ended up helping Mr Marsh inflict injuries on Mr Ross. You struggled at primary school with numerous changes of school because you were kicked out for bad behaviour. You left your high school at the end of year nine because of the way you got into fights and violence at school. As a teenager, you began using drugs and alcohol. You told the report writer that you do not know much about your culture or whakapapa.

[84]             Sentencing Judges now recognise the ways in which that sort of background can lead to someone offending criminally. As I have said, the Court of Appeal has

made it clear that there should often be discounts to recognise the way that sort of background has contributed to the offending.

[85]             But, the report also provides me with information which suggests that you must also bear responsibility for choices you have made in your life. You acknowledged to the probation officer that you have made choices that put you on a rocky road.

[86]             You had good examples to follow. You told the probation officer that you were raised by your grandmother and she is disappointed in you. You said she had told you she did not raise you to be the person you have turned out to be.

[87]             You were cared for by your grandmother from when you were six months old. You know how hard she and your koru tried to care for all their whānau and mokopuna. She supported you when you were the victim of serious offending by someone else in the whānau. Your nan and koru arranged for you to go to a full-immersion Te Reo Māori school. After you had to leave your high school, your koru took you home and attempted to home-school you, although you found this hard. The s 27 report tells me your grandmother had gifted you a tā moko after a birthday a few years ago. That tā moko signified your whānau and whakapapa.

[88]             It was your choice to do what someone in the Mongrel Mob asked you to do that led to your offending and to your being actively involved in killing someone, even if that was not what you had intended or wanted. At the time you became involved, you knew what you were doing. You had the maturity to make the proper choice. You did not do so. I do not consider you are entitled to any discount for what your counsel described as comparative youth.

[89]             But, I do recognise the way in which the choices you have made were associated with aspects of your background, for which you were not fully responsible. Consistent with the approach taken by the Court of Appeal in similar circumstances with other offenders, that would lead to a discount on the starting point of 15 per cent. That would lead to an end sentence of around nine and a half years’ imprisonment.

[90]             There is another way I am going to recognise how your background, particularly your gang involvement, led to this offending.

[91]             The Crown has said you should be sentenced to a minimum period of imprisonment of 50 per cent of that sentence on the basis that your eligibility for parole after one-third of the sentence would not adequately:

(a)        hold you accountable for the harm you did to Brendon Ross and the community by your offending;

(b)       denounce the conduct in which you were involved;

(c)        deter you or other persons from committing the same or a similar offence; and

(d)       protect the community from you.

[92]             The Court of Appeal has said that, in considering whether an increased minimum period of imprisonment should be imposed, the Court’s emphasis has to be on the circumstances of the offending, rather than the offender’s personal circumstances.

[93]             In R v Brown, the Court of Appeal said there may be some characteristics of the offender which constitute circumstances of the offence.15 I consider that is so with you. It was your gang association and your loyalty to the values of the Mongrel Mob that was ultimately the reason for your involvement in the offending.

[94]             You know how your involvement with the Mongrel Mob has left you responsible for the death of a man and the suffering caused to his family and friends, and to you being in prison for a number of years when you will not be available to support your children. The circumstances of this offending and the information in the pre-sentence report tells me that, if you remain subject to the pressures and influence of the Mongrel Mob, your risk of causing harm to others is high. Your offending here

15     R v Brown [2002] 3 NZLR 670 (CA).

shows that such harm could be really serious harm. That will be something which the Parole Board will consider carefully at such time as you become eligible for parole.

[95]             Past events might suggest the prospects of you making the changes you need to are, in a sense, bleak. The s 27 report told me that several years ago a gang patch had been tattooed over your tā moko. Mr Tuuta, the Māori lawyer with a double major in psychology in Māori and Indigenous Studies at the University of Canterbury, who wrote the s 27 report, said he was taken aback by the horrific image of what he saw, and that he had never seen such a thing. You told him that you did not know the cultural and spiritual impact that having a gang patch tattooed over your tā moko had.

[96]             Within days of your being found guilty of manslaughter, at prison, you had the word “Aotearoa” tattooed in large lettering across your face. You told Mr Tuuta that you were forced to submit to this because you wanted to leave the Mongrel Mob. I am somewhat sceptical that you were forced to submit to this tattooing. Prior to the trial, I saw a transcript of a conversation which took place while you were in prison where you told someone that you were contemplating having a gang tattoo put on your face. The person you talked to urged you earnestly not to do that because of the way that would impact on you for the rest of your life. But, you are now, at present, forced to live with what you have done.

[97]             The probation report says that you present as someone who had dreams, hopes, goals and aspirations for the future to be a better person, a person with a desire to make a better future for yourself and your children.

[98]             I am going to give you an incentive to do that through not imposing a minimum period of imprisonment. However, that is with the expectation that, if you do not now work to make all the changes that are necessary, it is unlikely you will be granted parole after serving just one-third of your sentence.

[99]Can you both now please stand.

[100]         Mr Marsh, on your conviction for murder you are sentenced to life imprisonment with a minimum period of imprisonment of 13 and a half years.

[101]         Mr Wealleans, on your conviction for manslaughter you are sentenced to nine years and four months imprisonment.

[102]Those are the sentences of the Court.

Solicitors:

Raymond Donnelly & Co., Christchurch KJ McMenamin & Sons, Christchurch C M Ruane, Barrister, Christchurch.