R v Marsters
[2021] NZHC 2117
•13 August 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-092-010824
[2021] NZHC 2117
THE QUEEN v
PALMER EDWARD MARSTERS
Hearing: 13 August 2021 Appearances:
K Li for the Crown
P Hamlin for the Defendant
Judgment:
13 August 2021
(ORAL) SENTENCING REMARKS OF WALKER J
R v PALMER EDWARD MARSTERS [2021] NZHC 2117 [13 August 2021]
Introduction
[1] Before I begin my remarks, I acknowledge the whānau of Ms Chontel Wiki- O’Brien present in court today. I acknowledge your grief and your pain. Today is yet another difficult day for you all. Nothing I say or do can help to heal that pain but I express to you the Court’s deepest sympathy for your loss.
[2] Palmer Edwards Marsters, you appear today for sentencing having pleaded guilty to charges of murder;1 injuring with intent to injure,2 and male assaults female.3 All of the charges relate to the same victim, Chontel Wiki-O’Brien.
[3] On 28 May 2021, I delivered a sentencing indication which you subsequently accepted.4 In that indication I adopted a starting point of life imprisonment with a minimum period of imprisonment (“MPI”) of 14 years for the murder charge. I increased that by six months to reflect the other charges. From the notional MPI of 14 and a half years, a reduction of two years was given to reflect the guilty plea. A further reduction of six months was made in respect of factors set out in a psychiatrist’s report and a s 27 report. The end indication was life imprisonment with an MPI of 12 years’ imprisonment.
[4] As is usual after a sentencing indication, I have now been provided with more reports: an updating report from Dr Duggal, and a pre-sentence report from the Department of Corrections. The core issue today is whether there is anything in those further reports which leads me to conclude that further reductions from your indicated sentence are to be made. However, because sentencing is carried out for and on behalf of the public, I must explain in these remarks how I reached the indicated sentence of 12 years’ imprisonment.
1 Crimes Act 1967, ss 167 and 172. Maximum sentence life imprisonment, which is to presumptively be imposed (Sentencing Act 2002, s 102), together with a minimum period of imprisonment of no less than ten (s 103) or, pursuant to s 104, no less than seventeen, years.
2 Section 189(2). Maximum penalty five years’ imprisonment.
3 Section 194(b). Maximum penalty two years’ imprisonment.
4 R v Marsters [2021] NZHC 1268.
Victim impact statements
[5] I start with the victim impact statements read today. You have heard powerful statements of impact from Ms Wiki-O’Brien’s whānau. They are raw and emotional but also relatively measured. They have spoken with great courage this morning. They tell of their ongoing pain, their loving memories of their daughter, sister, cousin and niece. The grief and impact of your offending continues to be deeply felt by them. This is something that they and you will have to live with for the rest of your lives.
[6] I acknowledge also the cultural grief which has compounded the loss borne by Ms Wiki-O’Brien’s family because of your actions after her death. There was no open casket, no laying in state at the marae, because your conduct after this offending stole this important ritual from them.
Overall Approach
[7] Sentencing in cases of murder is highly constrained. The Sentencing Act 2002 (“the Act”) provides that, where a person is convicted of or pleads guilty to murder, they are presumptively to be sentenced to life imprisonment, unless that would be manifestly unjust, having regard to the circumstances of the offence and offender.5 That high threshold is met only in the most exceptional cases.6
[8] It is common ground that nothing in the circumstances of this offending, or your personal circumstances, suggests that exception applies here. Based on all the material before the Court, I agree. So, the presumptive sentence is life imprisonment, with a minimum period of imprisonment of no less than 10 years.7
[9] The focus for this Court is how much more than the 10 year minimum is required to achieve the purposes of holding you accountable, denouncing your conduct, deterring you or other persons and protecting the community.8
5 Sentencing Act 2002, s 102(1).
6 R v Rapira [2003] 3 NZLR 794 (CA) at 828.
7 Sentencing Act, s 103(2).
8 Section 103(2).
[10] Section 104(1) of the Act provides that the Court must impose a minimum period of at least 17 years if one of the factors set out in that section applies, unless it would be manifestly unjust to do so. The Crown contended that one of these circumstances does exist in this case—namely s 104(1)(e) because this murder was “committed with a high level of brutality, cruelty, depravity, or callousness”.
[11] For you, Mr Marsters, it was argued by your counsel that s 104(1)(e) is not engaged. As a fall-back, it was argued alternatively that it would be manifestly unjust to impose an MPI of 17 years. Your lawyer, at the sentencing indication, submitted that the appropriate MPI is not more than between 11–12 years having regard to your personal circumstances.
The approach in principle
[12] In cases where the Crown submits that s 104 is engaged, there are three steps the Court must work through.9 First, it must determine a minimum term, taking into account aggravating and mitigating factors of the offending and any such factors personal to you. Previous cases are used as a cross check. If the Court settles on a minimum term of 17 years or more, that will be the minimum term. However, if it is less than 17 years, the Court goes on to consider s 104.
Agreed Summary of Facts
[13] The indication I gave, and this sentence, is based on the summary of facts agreed by the Crown and you. These are the facts to which you pleaded guilty. I have noted in the pre-sentence report that you appear now to disagree with some of those facts. That does not alter the basis on which I now impose the Court’s sentence on you.
[14] Your relationship with Ms Wiki-O’Brien, although relatively short, was characterised by violence. The Police attended family harm incidents in September
9 Davis v R [2019] NZCA 40 at [25]–[26], referring to R v Williams [2005] 2 NZLR 506 (CA). The Williams methodology has been applied by other judges of this Court in sentencing for murder, such as in R v Peeni [2020] NZHC 1352; and R v Simeon [2020] NZHC 1421, as referred to by Mr Hamlin.
and October 2020 at your home. The second of these, on 22 October 2020, is the basis of the charges of male assaults female and injuring with intent to injure.
[15] You and Ms Wiki-O’Brien had got into a heated argument apparently over the fact she did not want to move in with you. In anger, you grabbed an extension cord, wrapped it around her neck, and told her to get out of the house.
[16] As she was walking to the front gate, cord still wrapped around her neck, you walked in front of her, grabbed the cord by the ends, and used it to throw her to the ground. Holding the cord with one hand, you punched her four times in the face.
[17] Ms Wiki-O’Brien managed to unwrap the cord and walk down the road. You pursued her in a vehicle, catching up with her and yelling at her to get in. When she did, you began to drive off, only to then push her from the moving vehicle.
[18] As a result of this incident, which left Ms Wiki-O’Brien bruised, grazed, and sore, you were arrested. You appeared in the Manukau District Court on 23 October 2020. You were admitted to bail, on the condition you did not associate with or contact Ms Wiki-O’Brien.
[19] In flagrant disregard of the condition, on 3 November 2020, you contacted Ms Wiki-O’Brien, attempting to persuade her to drop the charges. You agreed to meet a short distance from her home. You picked her up from her address in Weymouth. You drove around Auckland together.
[20] At some point between that time and three o’clock the next morning, you stabbed Ms Wiki-O’Brien at least three times in the chest. The wounds were inflicted with considerable force, the blade being driven between nine and 11 centimetres into her chest, perforating her heart. This caused her death.
[21] At about 3.00 am on the morning of 4 November 2020, you parked your vehicle on the side of the road, with Ms Wiki-O’Brien’s body in the front passenger’s seat. You then set the vehicle ablaze. It was alight for about 20 minutes, burning
Ms Wiki-O’Brien’s remains beyond recognition. Medical records and DNA profiling was required for identification purposes.
[22] The Police arrived at the scene not long after 3.00 am, having been alerted to the blaze. You approached the officers at the cordon and said words to the effect of “I am not running away”. Thereafter, you declined to comment or be interviewed, which was your legal right.
Minimum Period of Imprisonment – Offending
[23] I start with determining a minimum period which is consistent with achieving any or all of the purposes set out in s 103(2).
[24] There is also the question of related offending.10 The parties agree here that an uplift of six months’ imprisonment to the MPI appropriately reflects the other charges addressed. I accept that.
[25] This broadly orthodox approach includes the need to achieve consistency in sentencing,11 necessarily inviting comparison with the outcomes that have resulted in other cases within the “ordinary range”12 of murder offending—those where s 104 did not apply, or the appropriate MPI but for 104 was considered.
[26] I agree with the Crown that there are four aggravating features of this offending:
(a)actual violence through the use of a weapon;13
(b)offending while on bail;14
(c)vulnerability;15 and
10 See Pukeroa v R [2013] NZCA 305.
11 Sentencing Act, s 8(e).
12 Brown v R [2011] NZCA 95 at [76], approving R v Howse [2003] 3 NZLR 767 (CA) at [62]–[64].
13 Sentencing Act, s 9(1)(e).
14 Section 9(1)(c).
15 Section 9(1)(g).
(d)extent of loss, damage or harm resulting.16
Aggravating and mitigating circumstances of the offending
[27] This attack was clearly one made with considerable force and was brutal in its own way. I do not accept that there was any conduct of the victim to be taken into account.17 The cigarette burns located on your neck do not support a finding on the balance of probabilities that she assaulted you prior to the fatal assault, provoking you, or leading you to excessive self-defence, as would be required to materially mitigate your culpability.18 In my assessment, there are no such mitigating factors.
[28] The fact that you were on bail with a condition not to associate with Ms Wiki-O’Brien following your assault on her a short time earlier significantly aggravates the offending. The deliberate flouting of a court order designed to protect Ms Wiki-O’Brien calls for a particular need for a strong message of denunciation and deterrence.19
[29] Ms Wiki-O’Brien was vulnerable by virtue of the fact that she was in the car alone with you, but the degree of vulnerability does not reach the level envisaged by s 104(1)(g). But my sense in reading the material is that you were controlling and coercive towards Ms Wiki-O’Brien, which likely led to her getting in the car with you. Overall, this is a moderately aggravating factor.
Comparable cases
[30] I have read the cases which counsel submit are comparably serious in terms of the facts of the offending. I will not recount their facts here. I will reference these in a written record of my remarks.20 I note that each of the comparator cases referred to
16 Section 9(1)(d).
17 Section 9(2)(c).
18 See, by way of analogy, R v Taueki [2005] 3 NZLR 372 (CA) at [32].
19 Singh v R [2016] NZCA 582 at [24].
20 R v Callaghan [2012] NZHC 596: Mr Callaghan murdered his ex-partner by striking her on the head with a baseball bat a number of times before then dismembering and burying her corpse to attempt to evade detection, having also enlisted associates to assist in a concerted effort at avoiding detection. Once eventually apprehended, Mr Callaghan evinced tremendous and genuine remorse for the murder. Section 104 not engaged. Notional MPI of 11 years adopted on murder, uplifted by 4 years for elaborate attempt at concealment.
by the Crown—Singh,21 Fungavaka,22 and Marong23—are cases in which s 104 was found to be engaged.
[31] I also undertook my own research. I have identified another case named R v Singh.24 Mr Singh killed his wife, whom he suspected of infidelity, having lain in wait for her at a training institute where she studied. He stabbed her fatally in the chest, then twice in the face, and, less seriously, the man he suspected she was cheating with. Woolford J [accepted] as aggravating the moderate degree of premeditation, the use of a knife in actual violence resulting in death, and the risk to bystanders involved in the brazen method of attack. He adopted as a starting point in respect of the murder alone, 12 years and six months’ imprisonment.25
[32] Having regard to all these cases, I sentence you on the basis that you perpetrated a short, vicious, and lethal assault on a defenceless woman, with a weapon but without proof of premeditation or ulterior motive, while on bail for related
R v Frost [2008] NZCA 406: Mr Frost was a house guest of the victim. He approached her from behind, slit her throat, then stabbed her through the back. He took food from her kitchen before fleeing in the car, leaving her lying in the kitchen. He told an associate that he liked “watching all the blood come out” and had been “quite good at it”. The Court of Appeal agreed her quick death was neither brutal nor cruel, but these comments disclosed great callousness, engaging s 104.
R v Simeon [2020] NZHC 1421: Mr Simeon used two knives to stab the victim four times, then stomped on his head with steel-capped boots. Attack found not to display the requisite level of brutality to engage s 104(1)(e). Notional MPI of 13 years adopted.
R v Kinghorn [2013] NZHC 3216: Mr Kinghorn, having determined to engage in sexual activity with a woman, drove around Christchurch before, apparently at random, deciding to drive at speed into a woman he passed on the street, killing her instantly. Section 104 not engaged. Notional MPI of 15 years adopted.
R v Gottermeyer [2014] NZCA 205: Mr Gottermeyer stabbed his estranged wife 12 times, resulting in a lingering death while their daughter was in the house. Section 104(1)(e) engaged by brutality and cruelty, victim’s slight build resulting in vulnerability, and high level of premeditation. On facts alone, 17 years MPI held to be appropriate.
21 Singh v R [2016] NZCA 582: Appellant murdered his estranged wife while on bail, smashing his way into her bedroom then stabbing her to death. Evidence of lengthy planning and premeditation, together with the victim’s high level of vulnerability, engaged s 104. Breaches of protection order and bail found to be separately aggravating. 18 year MPI adopted.
22 R v Fungavaka [2015] NZHC 2761: Partner run down with car during a domestic altercation, then driven back over at speed in a ‘U-turn’, causing multiple blunt force trauma injuries, while defendant on bail. Section 104 engaged by high level of brutality involved in second attack.
23 Marong v R [2020] NZCA 179, leave to appeal refused [2020] NZSC 133: Sex worker strangled to death in the back of a car and her body burned at the side of the road the following day. Appellant told prison officers that killing the victim had been like “hunting in the wild”. That comment, together with the post-mortem conduct (researched beforehand) engaged s 104, together with vulnerability of victim with unusually small physical stature and significant premeditation.
24 R v Singh [2015] NZHC 2369.
25 At [43].
offending (a factor not present in Singh). I conclude that imposing an MPI of 14 years in respect of the facts of the murder itself is appropriate.
[33] That figure includes recognition of the callousness disclosed by the manner in which you treated Ms Wiki-O’Brien’s body as part of your ill-conceived and short- lived attempt to conceal your offending. As stated, I have no doubt this heightened the impact and sense of loss for her family,26 and was in itself cold-hearted.27
[34] As already stated, the parties agree that an uplift of six months should be imposed in respect of the other charges.
Minimum Period of Imprisonment – Offender
[35] This notional MPI of 14 years and six months must now be adjusted in respect of the discounts available on your guilty plea.
Previous convictions and (absence of) prior good character
[36] I note that it is common ground between counsel that no uplifts in respect of personal factors would be required. The Crown accepts that your only previous conviction—a 2010 conviction for the armed robbery of a liquor store with a knife—does not require an uplift, given the age of the conviction. But the corresponding effect is that there is no discount in respect of previous good character.
Guilty plea
[37] It is also common ground that you are entitled to the maximum possible discount in respect of any guilty plea.
[38] I agree that is appropriate. As the Crown noted, your first appearance in relation to this matter was on 4 November 2020. Your guilty plea was entered before trial callover. It has produced significant savings to the justice system and community.
26 Sentencing Act, s 9(1)(d).
27 Section 9(1)(e).
It most importantly avoids further distress to Ms Wiki-O’Brien’s family associated with a trial.28
[39] The greatest guilty plea discount available in sentencing for murder is more limited than the maximum 25 per cent discount available in respect of other offending. It cannot exceed two years.29 I agree that a guilty plea discount of two years is appropriate.
Personal, family, community, and cultural background
[40] The Court had available at the sentencing indication hearing two reports addressing your personal circumstances. It now also has a pre-sentence report. One of those previous reports has been updated or supplemented since the sentencing indication.
[41] The first report is a psychiatric report dated 29 March 2021 by Dr Rishi Duggal, a consultant forensic psychiatrist. While primarily assessing (positively) your fitness to plead or stand trial, Dr Duggal makes some broader comments about your life history and mental health status. The biographic details recorded in that report are consistent with the s 27 report also produced for the Court.
[42] Dr Duggal recorded, on the basis of self-reporting, but also supported by clinical records created since you first sought treatment in 2018, that you suffer from clinical depression of mild to moderate severity with occasional suicidal thoughts. Overall however, Dr Duggal was satisfied that you responded positively, if incompletely, to medication since that time, and while in custody. Dr Duggal suggested that your admitted ongoing use of alcohol, cannabis, and methamphetamine prior to your arrest has likely aggravated your underlying depression, but that this, and any underlying substance abuse disorder, is improving while you have been in custody. The inference to be drawn from that, then, is that your mental health has improved on balance, not worsened, while on remand, as compared to in the community, where
28 See Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [53]–[60].
29 See R v Peeni [2020] NZHC 1352 at [24]; and R v Garson [2020] NZHC 3259 at [60].
your compliance with community-based mental health care and taking medication appears to have been poor.
[43] Based on your previous conviction and self-reporting of aggressive behaviour during adolescence, Dr Duggal also referred to traits of antisocial personality disorder, though little is said about this in the report.
[44] The second report is a s 27 cultural report prepared by Ms Tara Oakley. This report provides a window into your personal, family, community, and cultural background. As is typical with such reports, it is based largely on self-reporting, but with some further material gathered from an interview with your mother.
[45] Mr Hamlin submitted at the indication hearing that, in combination, a discount of about 10 per cent be allowed based on those two reports. After the updating material from Dr Duggal, he submits that a further modest discount of six months is appropriate to recognise your mental health issues and nexus between your cultural background and your offending. I will return to that in these remarks.
[46] As noted in the report, you are about 32 years old, of Cook Islands Māori descent on your mother’s side. You had limited engagement with, and reported feeling significantly disconnected from that aspect of your heritage. Your mother moved to New Zealand in 1969 as a young child. Your grandfather declined to teach you Cook Island Māori, seeing it as of no advantage to you in New Zealand. You had maintained a reasonably close relationship with your grandfather. You were living with him when arrested; your grandfather is described as the only positive male role model who has consistently played a part in your life.
[47] Ms Oakley identified broader themes of disconnectedness in your life; you did not meet your father until you were 12 years old. Your mother raised you as a single mother until later childhood. She then formed a longstanding relationship with another man, to whom she later had two children. Overall, you assessed your earlier childhood as settled, but said the family dynamic changed markedly when your mother’s partner started living with you. The Police came to the house many times, apparently called out in relation to domestic violence incidents or for drug searches.
[48] You say your stepfather was a methamphetamine addict and affiliated with gang members. You say that you have smoked methamphetamine with your stepfather on a number of occasions. This compounded your earlier use of substances, which you reported began with alcohol and drug use as a form of self-medication for anxiety and depression from early adolescence. Your substance abuse, you say, became worse in 2017, when a long-term relationship ended, leaving you feeling isolated. You said that you had stopped using illicit drugs, but also stopped your psychiatric medications, in the months leading up to the offending.
[49] The relationship between your mother and stepfather, according to your mother, was tumultuous. When you reached adolescence you attempted, unsuccessfully, to intervene in episodes of violence. It seems that you found it difficult to adjust to having new siblings, or your stepfather in the household.
[50] More broadly, you said, you were exposed to street violence repeatedly in and around your community growing up and had started a “fight club” with your school mates while still in formal education. You referred to the experience of a friend dying in your arms when you were 16 or 17 years old. Ms Oakley suggests this indicates that violence is normalised in your mind. She points to evidence that “suggests that youth who have had more chronic and direct exposure to community violence are more likely to remain involved in violent criminal behaviour”. There are reports, primarily by you, which your mother was unable to corroborate, of you having been referred to child mental health services for violent and disruptive behaviour as a child. More recently, you self-report as having been the victim of a kidnapping, during which you were beaten severely and “poisoned” by cut methamphetamine.
[51]There is a faint suggestion of post-traumatic stress disorder in the s 27 report.
[52] It is now clear that, even in cases of serious violence,30 that a discount is available in respect of evidence of social, cultural, and economic deprivation in an offender’s background where a “demonstrative nexus with the offending”,31 is shown.
30 See Carr v R [2020] NZCA 357 at [65]–[67], a case of serious non-fatal violent offending; and R v Jury [2020] NZHC 2618 at [53], a case of murder.
31 Zhang v R [2019] NZCA 507 at [161]–[162].
While the sentencing Court can rely on drawing a reasonable inference to decide if a necessary nexus does exist,32 it is also clear the offender must establish the necessary circumstances to the balance of probabilities for a discount to be available.33
[53] The rationale is that the demonstrative presence of such factors renders less appropriate emphasis placed on accountability, denunciation, and specific and general deterrence, and more appropriate an emphasis on rehabilitation.34 The Court has to be satisfied the offender is less morally culpable for their offending than would be an offender who has not suffered such privations.35 Where offending is particularly grave however, these matters may be of lesser importance, so as to constrain the appropriate discount.36
[54] The extent of any discount where appropriate is “very much fact-specific in each case”.37 The Court of Appeal has declined to offer guidelines as to the appropriate range. Given the general desirability of consistency in sentencing however,38 and the underlying rationale for the discount, it would follow—at a high level of generality—that the more adverse an offender’s circumstances, and the greater the nexus, the less their culpability, and the greater the appropriate discount. That is consistent with the approach adopted by the Court of Appeal in recent cases.39
[55] For the same reason, it is clear that mental illness can be relevant to sentencing.40 Also as with the previous category, for a discount in respect of mental
32 Arona v R [2018] NZCA 427 at [59], approving Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [50].
33 See Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [148] applying Sentencing Act, s 24(2)(d).
34 Poi v R [2020] NZCA 312 at [24]–[27].
35 See also Poi v R [2020] NZCA 312 at [32]–[39] and [40]–[51]; and Solicitor-General v Heta [2018] NZHC 2453 at [40]–[41]. This can be seen to give expression to ss 8(a) and 8(i) of the Sentencing Act.
36 Carr v R [2020] NZCA 357 at [67].
37 Whittaker v R [2020] NZCA at [51]; and Carr v R [2020] NZCA 357 at [63].
38 Sentencing Act, s 8(e), which can be understood as an expression of rule of law principles requiring the law to be applied rationally, and therefore consistently: see Michael Hill Finance (NZ) Ltd v Commissioner on Inland Revenue [2015] NZH 3144, [2016] 2 NZLR 665 at [23] per Toogood J, adopting Philip A Joseph Constitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters, Wellington, 2014) at 956.
39 See Carr v R [2020] NZCA 357 at [69]–[71]; and Poi v R [2020] NZCA 312 at [32]–[39] and
[40]–[51].
40 E(CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [70(c)].
illness, or mental health issues, to be appropriate, there must be cogent evidence demonstrating how that caused or more generally contributed to the circumstances of the offending.41
[56] Mr Hamlin relies on these strands of authority. He submitted at the sentencing indication that a discount of 10 per cent reflects a demonstrated connection between your mental health as identified by the report writers and the normalisation of and exposure to violence, and childhood and adolescent trauma, documented particularly in the s 27 report.
[57] One difficulty is the paucity of evidence as to what exactly transpired on the day of Ms Wiki-O’Brien’s death based on the agreed summary of facts. It is said only that you picked her up from her home, apparently with her agreement, with the apparent intention of asking her to withdraw her complaints of earlier domestic violence. Then, so far as the agreed summary goes, 16 hours later her body was located in a burning vehicle, she having been stabbed by you in the chest three times with significant force. Your statement to Ms Oakley that you killed Ms Wiki-O’Brien in a moment of uncontrollable rage offers little insight.
[58] Without more details, it is difficult to be satisfied about the nature and extent of [the] link between your personal and family background, or mental illness, and the offending, or the extent to which this mitigates your culpability. Even tracing a link between the suggestion of antisocial personality disorder and experience of street violence and the obviously violent circumstances of Ms Wiki-O’Brien’s death, lacks strong cogency. The specific episodes of violence referred to in the reports simply do not, taken together, suggest an explosive temper resulting from deep-seated psychological issues recognisable as mental illness. All that is left then is your own self-reporting to Ms Oakley.
[59] I have already rejected as speculative the submission that the apparent cigarette burns on your neck must be attributed to an assault instigated by Ms Wiki-O’Brien that enraged you. But, even if there was satisfactory proof, given the gravity of the
41 See Roberts v R [2020] NZCA 441 at [47].
offending, and the entirely disproportionate response, that would do little to displace considerations of denunciation and deterrence.
[60] While I accept that your background speaks of deprivation and disadvantage, things that may predispose you to violent behaviour in general, I find that connection insufficiently causative of this particular horrendous offending against this young woman, to provide anything more than a modest six month discount.
[61] Dr Duggal conducted a second interview with you on 22 July 2021. He noted that further information was now available to him including the cultural report, the pre-sentence report, clinical records relating to you in respect of a health provider and a letter from Counties Manukau District Health Board, dated 27 October 2009, relating to Ms Wiki-O’Brien.
[62] This updated report contains more detail about episodes of depression and anxiety you have suffered, the medications you have been variously prescribed and your use of methamphetamine and cannabis. The updated reports also refer to your own efforts to engage in counselling and the stresses in your life which have clearly aggravated episodes of depression and anxiety.
[63] The new report notes that while on remand you have engaged positively in the Te Pikinga programme, which focusses on mental wellbeing, emotional regulation and family issues. That is positive and I urge you to continue those efforts.
[64] The core question however is whether Dr Duggal’s access to further information and updated report provides any basis on which I should now consider additional discounts to reflect your personal circumstances. Mr Hamlin submits that this additional material supports a further modest discount of six months from the term of [the] minimum period of imprisonment in my sentencing indication. After careful reflection, I have concluded that the matters in the updated report have already been taken into consideration. The most significant difference is that Dr Duggal now concludes that you meet the criteria for major depressive disorder whereas the earlier report referred to meeting the criteria for major depressive episodes of mild-moderate severity that was in partial remission. I apprehend that this revision is based on the
additional material from health providers which detailed various medical interventions. The other conclusions in the updated report are however materially the same as the earlier report, namely meeting the criteria for substance abuse disorder and the traits of antisocial personality disorder.
[65] It follows that the sentencing indication I gave you on 28 May 2021 remains the sentence I will now hand down without any further discounts on account of your personal circumstances.
Remorse and rehabilitation
[66] Finally, Mr Hamlin contended at the sentencing indication hearing for a further discount in respect of remorse and rehabilitation. He relies on the statements of remorse reported to Ms Oakley, and your desire to address your substance use and mental health issues while incarcerated.
[67] While it is clear that remorse need not be “exceptional”42 to warrant a discrete discount, I said then that I would need to see a cogent basis for accepting that you already feel accountable for your conduct,43 and, as a result, are not likely to offend again in future, or are seeking atonement in a manner lessening the harm to the victim’s family. There must be something more than the bare acceptance of responsibility inherent in a plea of guilty.44
[68] I have noted your continued denial, separate from any question of plea, of the earlier offending. This suggests to me a current lack of insight. There is certainly nothing unambiguously evincing contrition.45 The pre-sentence report is also a mixed bag in that you continue to attribute some blame to the victim for the circumstances in which you found yourself. I have concluded that it does not support any additional discount for remorse, beyond that included as part of the guilty plea discount.
42 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [63]–[64].
43 At [64]. See also Brown v R [2011] NZCA 95 at [16].
44 Moses v R [2020] NZCA 296 at [24]–[26].
45 See R v Rapira [2003] 3 NZLR 794 (CA).
[69] You told the pre-sentence report writer that, “[i]f I could take it back, I wouldn’t have done it,” but I feel unable to afford any credit for your stated desire to address those parts of your background that are said to contribute to this offending. Your comments about a desire for self-improvement are just that, self-directed, and demonstrate little insight into the wrongdoing.
Do the facts set out in the agreed summary of facts disclose a murder “committed with a high level of brutality, cruelty, depravity, or callousness”?
[70] I now briefly explain how I determined the application of s 104 in my sentencing indication.
[71] In one sense, all murders necessarily involve a degree of brutality, cruelty, depravity, and callousness, such is the nature of the offence.46 But the Court of Appeal says that s 104 is reserved for the “most serious of cases”.47 The section requires the sentencing judge to determine where, on the broad spectrum of murder offending, the particular case sits—an unenviable task. But that is what is required.
[72] The case law says that whether each of those descriptors can properly be applied to the facts of a particular murder needs to be assessed separately, though cruelty and callousness may overlap in particular circumstances.48 The requisite conspicuous degree of brutality or cruelty is unlikely, all things being equal, to arise where a victim was spared prolonged suffering by perishing almost instantly, but callousness, or depravity, may well still arise.49
[73] Having compared the circumstances in cases referred to me by counsel at the sentencing indication, particularly the cases of Marong v R50 and R v Gottermeyer,51 I concluded that s 104 does not apply on the facts before the Court. I now explain why.
46 See R v Slade [2005] 2 NZLR 526 (CA). See, similarly, R v Simeon [2020] NZHC 1421 at [35], referred to by Mr Hamlin.
47 R v Williams [2005] 2 NZLR 506, (2004) 21 CRNZ 352 (CA) at [34].
48 R v Frost [2008] NZCA 406.
49 At [38]–[40].
50 Marong v R [2020] NZCA 179, leave to appeal refused [2020] NZSC 133.
51 R v Gottermeyer [2014] NZCA 205.
[74] The Crown submitted that the Court cannot be sure the murder was not brutal or cruel just because there is evidence of only three stab wounds. The Crown says this is because Ms Wiki-O’Brien’s body was so badly burned after death that more injuries cannot be ruled out and the Court should infer a more prolonged, vicious assault from the force of the stabbing itself. There is merit in that submission. However, the Act makes it clear that an aggravating fact can be relied on in sentencing only if established beyond a reasonable doubt by the Crown.52 While an inference is available, it does not meet the threshold.
[75] What you did after killing Ms Wiki-O’Brien has to be assessed for what it demonstrates about your degree of moral turpitude at the time of killing. Although in the eyes of right thinking members of the public it alone would be described as callous, it does not in isolation meet the test of callousness in the eyes of the law.53 The focus is on the manner in which the murder was actually committed and post-mortem conduct such as actions undertaken to avoid detection are not independently enough to engage s 104(1)(e).54
[76] You surrendered yourself and made a tacit admission of your involvement, within an hour of the Police investigation beginning. You then refused to make any further statement (as was your right). The Crown submitted that cannot be taken as evidence of acceptance of responsibility negating the existence of a callously numbed soul. On the other hand, Mr Hamlin submitted that your actions after murdering Ms Wiki-O’Brien evidence panicked, impulsive, unsophisticated, and unplanned attempts to conceal evidence of your offending rather than demonstrating callousness. By remaining near the scene and tacitly accepting responsibility once the attempt to destroy evidence failed; combined with evidence of cigarette burns on your neck at the time of your arrest, said to be from the victim, supported he said, an inference of an impulsive assault followed by panicked attempts at concealment.
52 Sentencing Act, s 24(1), (2)(c) and (3) definition of “aggravating fact”.
53 See R v Simeon [2020] NZHC 1421; R v Gottermeyer [2014] NZCA 205 [79(c)]; and Kempson v R [2020] NZCA 656.
54 R v Kempson [2020] NZHC 233 at [66]–[68] approved in Kempson v R [2020] NZCA 656 at [164]–[165].
[77] Again, I am hampered in my assessment by the paucity of the facts on which I am required to sentence you. A defendant must establish mitigating facts relied on to the balance of probabilities.55 I reiterate that it is not enough in this case. I am not prepared to take into account those submissions as mitigating facts. Even without that however, in the eyes of the law, your conduct after stabbing Ms Wiki-O’Brien does not engage s 104.
Conclusion as to Minimum Period of Imprisonment
[78] For these reasons I consider that the appropriate MPI in this case remains 12 years as in my sentence indication. Having regard to the above matters touching on the gravity of the offence and [your] culpability, I consider that this minimum period meets the purposes, in the eyes of the law, of holding you accountable for the harm done to Ms Wiki-O’Brien, her family, and the community; denouncing your conduct; deterring and protecting the community from you; and general deterrence, in terms of s 103(2) of the Sentencing Act 2002. It cannot of course hope to address in any respect the whānau’s grief and despair.
[79] For completeness, I record my assessment that, even if I was wrong to find that that s 104(1)(e) of the Sentencing Act 2002 is not engaged, the fact that an MPI of 12 years results from the application of s 103(2) also demonstrates that an MPI of 17 years would be manifestly unjust in the present case.56 The offending set out in the agreed summary is without doubt grave. But it does not take this case outside “the standard range of murders”57 into that category of offending at which s 104 is directed.58
Sentence
[80]I now formally hand down my sentence. Mr Marsters, please stand.
55 Sentencing Act, s 24(2)(d), and (3) definition of “mitigating fact”.
56 See Vea v R [2020] NZCA 68 at [23]; and R v Garson [2020] NZHC 3259, referred to by Mr Hamlin.
57 R v Paul CA495/06, 1 August 2005.
58 R v Williams [2005] 2 NZLR 506 at [67]; and Malik v R [2015] NZCA 597 at [32].
[81] Palmer Edwards Marsters, I sentence you to life imprisonment with an MPI of 12 years for the murder of Ms Wiki-O’Brien.
[82] I sentence you to concurrent (meaning served at the same time) sentences of 16 months’ imprisonment on the charge of injuring with intent to injure and four months’ imprisonment on the charge of male assaults female. As they are to be served at the same time, they do not impact on your effective period of imprisonment.
[83]A first strike warning has already been given to you.
[84] I direct that the reports of Dr Duggal be made available to the medical team of the Department of Corrections to assist in your therapeutic support.
[85]Please stand down.
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Walker J
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