R v McDonald HC Auckland CRI-2010-092-10476

[2011] NZHC 2108

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-092-10476

THE QUEEN

v

GLENN MICHAEL MCDONALD

Hearing:         13 December 2011

Counsel:         J Dixon and N A Speir for the Crown

M A Edgar for the Prisoner

Judgment:      13 December 2011

SENTENCING NOTES OF ELLIS J

Solicitors:      Crown Solicitors, PO Box 2213, Auckland 1140

Counsel:       M A Edgar, PO Box 6462, Auckland 1141

R V MCDONALD HC AK CRI-2010-092-10476 [13 December 2011]

[1]      Mr McDonald on 5 October 2011 a jury found you  guilty of murdering Keith Kahi and it is for that crime that you appear for sentence today.   Because you killed Mr Kahi after 1 June 2010 (on 4 July 2010) you are now subject to the three strikes law and so, before I get to your sentence, I must warn you that:

(a)      If you are in future convicted of any other serious violent offence other than murder committed after this warning then you will serve any sentence of imprisonment imposed on you upon that conviction without parole or early release.

(b)If you are in future convicted of murder committed after this warning then you will be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so.  In that event the Judge must sentence you to a minimum term of imprisonment.

[2]      You will also be given a written warning about those things.

[3]      But turning now to the question of sentence.  Murder, as you know, carries the mandatory penalty of life imprisonment, other than in very exceptional circumstances. You will be aware that counsel are agreed that such circumstances do not exist in your case.   So the issue today is the length of the minimum term of imprisonment I should impose.   That will in large part depend on the facts of the matter and I deal with those first.

The facts

[4]      In 2010 you were living in a ‘flatting’ situation with Mr Kahi at 5 Tullis Place, East Tamaki.   I accept what you have said about how that came to arise, namely that at some earlier point you had given Mr Kahi a place to stay.  Mr Kahi was  a  longstanding  friend  of  yours  but  during  2010  your  relationship  had deteriorated.  The evidence at your trial made it clear, I think, that that deterioration was caused in very large part, if not exclusively, by your increasing paranoia about his  relationship  with Annalie Dobson  coupled  with  your obsessive mistrust  and suspicion that he, she (and others) were “using” you and were possibly planning to

rob and harm you.   Those thoughts were largely the result of your longstanding methamphetamine use although I accept that you had other, more objective, concerns that compounded your feelings of mistrust.

[5]      In any event you had asked Mr Kahi to move out and on 4 July 2010 he was in the process of doing so.   Early on that day he had begun shifting his personal belongings out of the house.  In the course of the afternoon you and he argued and a picture was thrown.   Both you and he left the house.   You returned first.   When Mr Kahi came back in the early evening he found himself locked out and was angry. He removed a pane of glass from the bedroom window and climbed into the house.

[6]      I am prepared to accept that his entry into the house in this manner may have surprised you.  As I have said, I think the evidence at the trial clearly showed that your mental state at this time was very bleak, angry and paranoid.  Nonetheless there was no suggestion that you did not quickly become aware that it was Mr Kahi who was in the house and you and he again argued.  At some point you both moved into the lounge where you picked up your high-powered air-rifle, which was nearby, and began shooting.   While I do not sentence you today on the basis that you were aiming or intending to kill Mr Kahi, you knew full well that the gun was potentially lethal, and by deliberately firing it at him and in an enclosed space, you must have intended to cause him serious injury. At best you were grossly reckless as to whether you did in fact kill him.

[7]      Mr Kahi ran out of the room and away from the house towards his car that was parked in the driveway.  Although you denied this I consider that you shot at Mr Kahi as he was running away and followed him outside.   In total you shot Mr Kahi seven times; he had pellet shots to both the front and back of his body.  Two of the pellets and the resulting blood loss ultimately caused his death.

[8]      Mr Kahi managed to walk down the driveway towards the road.  He phoned the police and told the operator that he had been shot but he then collapsed onto the footpath. A neighbour returning from work saw him on the ground.  He also phoned

111.  An ambulance arrived a short time later.  Mr Kahi was taken to Middlemore

Hospital by ambulance, where he was pronounced dead within a few minutes of arriving.

[9]      Once you stopped firing you went back into the house and placed the rifle in your bedroom.  You then ran away on foot to your car that was parked around the corner.  You remained on the run for several days although I accept that you eventually made a decision to turn yourself in to the Police.

[10]     At your trial you raised the defence of self-defence but it is clear that the jury had no difficulty in concluding that the Crown had excluded that possibility beyond reasonable doubt.  Even accepting that, principally because of your highly paranoid state, you were feeling generally fearful that evening, I do not accept that Mr Kahi posed any real threat to you and, even if you thought he did, your response was out of all proportion to any danger that you might have perceived yourself to be in.  It is difficult, I think, to reconcile shooting someone while they are running away with self-defence.

Pre-sentence report

[11]     I turn now to say something about your personal circumstances.  You are 44 years old.  Your probation report says that you have described your upbringing as difficult, although it is perhaps not so when compared with that of many who come before this Court.  Nonetheless your parents separated when you were 13 and, for various reasons that had a negative impact on you.   You left school with no qualifications.

[12]     You have some 80 previous convictions, mostly for low level offending, although in 1999 you were convicted, and sentenced to a short term of imprisonment for, one charge of kidnapping and one charge of injuring with intent to injure.  I have heard what Mr Edgar has said about that today and it is not something I intend to give particular weight to.  You have said that much of your earlier offending resulted from your propensity for helping others although you do not really explain that.  In fairness to you, however, I record that a number of witnesses during your trial did speak of your kindness, your generosity and your willingness to help other people.

[13]     But you also told the Probation Officer, and this was also clear from the evidence you gave at your trial, that you got a kick out of offending of this fairly low level kind and were perversely proud of it.

[14]     In any event you worked in various jobs until you discovered your aptitude for computers and in 1999 this resulted in your qualifying as a Microsoft service engineer.  You were largely self-taught and you are plainly talented in that area.   As a result you obtained employment with EDS (an arm of Telecom) between 2000 and

2003.

[15]     Unfortunately this coincided with the beginning of your methamphetamine use.  You eventually resigned your job at EDS.  Your thinking, I think was that you could use your computer skills to support yourself while at the same time indulging your one gram a day habit.  You have said that you feel that methamphetamine was initially good for you and that your use of the drug “gave you a conscience”.  Again you don’t really explain this although you have said that the rush you got from methamphetamine replaced the adrenalin kick you had previously got from your offending.  And it seems evident from your criminal history that your offending did markedly decrease from 2000 onwards.

[16]     In terms of your explanation for Mr Kahi’s murder, you have said and I accept that you purchased the air rifle following a home invasion in which you had been injured and property of yours taken.   You have described your deteriorating relationship with Mr Kahi as “confusing” and I am sure it was, given that it appears that much of it was in your head – there certainly appears to have been no rational basis for the deterioration.

[17]     You said to the Probation Officer, as you said during the trial, that on the day of  the  murder  you  had  been  contemplating  suicide  and  that  Mr  Kahi  had unexpectedly returned to your house whereupon there was an argument which resulted in the shooting.  You have said that the shooting was an impulsive act for which you now take full responsibility.  But you have said you still believe there was a degree of self-defence and deny having a murderous intent.  I have already spoken about the jury’s and my assessment of those matters.

[18]     It seems that you have begun to speak about feelings of remorse with the Probation Officer but as I have just said it appears that you may still think that there was  an  element  of  justification  in  what  you  did.     But  make  no  mistake, Mr McDonald, there was not.

[19]     Unsurprisingly  you  have  been  assessed  as  having  a  methamphetamine addiction which has  contributed, over time, to  your deteriorating mental health. Having presided over your trial, I have no doubt that that is the case.  I have already noted that, prior to your addiction you had a level of pride associated with your other offending and that it gave you an adrenalin rush that you say you need.  These things are also reflected in your statement to the probation officer that you have only ever been caught for one per cent of your prior offending.

[20]     So the pre-sentence report says that you need to take steps to address your paranoia and to resolve your need for high risk, illegal, behaviour - otherwise there will be at least a moderate risk of your reoffending in the future.   That is plainly correct.

[21]     Lastly, and on a more positive note, I record that you are fortunate in the support that you continue to have from your parents who were a dignified presence throughout  your trial and I acknowledge their presence here again today.   Your mother has said that she will support you come what may and, as I have said, you are lucky to have such love and support.

Victim Impact

[22]     I turn now to the victim impact statements.   The Crown has produced six statements from members of Mr Kahi’s family – from his mother, his brothers and two of his sisters in law.   I have read them all and acknowledge the presence of Mr Kahi’s family here today and again you were also a dignified presence during the trial.  Clinton Kahi spoke of his family’s terrible grief and loss this morning and I hope that you have listened to what he has said.  He said Keith was a man with a huge heart and great kindness.  Keith’s family cannot understand or forgive you for

what you have done.  So you can be in no doubt that as well as causing the death of

Mr Kahi your actions have caused great pain, anguish, and sadness for many people.

[23]     And in Mr Kahi’s case his family’s pain is particularly acute because those who loved him most had not seen him for some time before his death and now will have no opportunity to remedy that.

Sentence/Minimum Term

[24]     So now I turn to explain the sentencing decision which I am required by law to make today.  In deciding what is the appropriate sentence I must take account of a number of provisions in the Sentencing Act. These include what are called the general principles and purposes of sentencing, as well as a number of specific provisions that relate specifically to sentencing for murder.  I must also have regard to sentences that have been imposed by other Judges in other similar cases and you will have heard counsel refer to some of those today.

[25]     First, and as I have said, where a person is convicted of murder the Court must  impose a sentence  of life  imprisonment  unless  such  a sentence  would  be manifestly  unjust.  In  your  case  it  would  not  be  manifestly  unjust  to  impose  a sentence of life imprisonment and you will therefore be sentenced to life imprisonment.

[26]     Secondly, under New Zealand law, even though a person has received a life sentence they may, nevertheless, apply for parole.   But Parliament has said that where the Court imposes a life sentence for murder it must also, at the same time, decide on the minimum period of imprisonment that can be served before an application for parole can be made. This is commonly called the minimum non- parole period.

[27]     Generally speaking, the minimum non-parole period must not be less than 10 years or whatever longer period the Court thinks necessary to meet four purposes, which is holding you accountable, expressing society's condemnation of what you

have done, deterring you and others from doing that kind of thing in future and protecting the community.

[28]     There is also a special category of murders where Parliament has held that the minimum non-parole period is to be 17 years.  However, I agree with both counsel that yours is not one of those cases.

[29]     It follows from all of that that the key issue I have to decide is whether the minimum non-parole period should be more than 10 years and, if so, how much more.   Mr Dixon, in his submissions today, has urged a minimum term of imprisonment of up to 12 years.  Mr Edgar has said that there should be no increase beyond  10  years.   As  Mr  Dixon  said,  however,  there  is  no  in  fact  very much difference between counsel on that issue.

[30]     In fixing the term, I must identify the aggravating and mitigating factors relating to the offending and to you personally in so far as they bear on the four purposes I have mentioned.  In your case I identify the aggravating features of your offending as being:

(a)       the use of a weapon that you knew full well was potentially lethal; and

(b)      the number of shots fired and the fact that a number of them hit

Mr Kahi in the back while he was trying to get away.

[31]     I agree with Mr Dixon that the second factor is the most significant.

[32]     Mr Edgar submitted that there is also potentially a mitigating factor, namely that this was a case of excessive self defence.   On the evidence, however, I am unable to give that submission much weight for the reasons I have already given. The most that can be said is that it seems that Mr Kahi broke into the house and may have initially surprised you.  But I put it no higher than that.

[33]     So turning now to the four purposes themselves.  The very great harm you have done is obvious and enduring although I acknowledge Mr Edgar’s submission that such harm is implicit in any act of murder.  But the aggravating matters I have

mentioned add somewhat to the more specific need to denounce what it is that you did.  In terms of individual deterrence and community protection I have little doubt that you will not reoffend in such a way again, provided you are able to stay clear of methamphetamine on your release.  I do not think you are a violent person by nature. Nonetheless there appears to me to be a worrying underlying aspect of your personality which  involves a  willingness  to disregard  the law and the rights of others.  Those attitudes were perhaps the beginning of the slippery downward slope for you and as you must by now appreciate the law is not a game that can be fought and  won.    So  unless  your  apparent  need  to  prove  yourself  cleverer  than  the authorities is addressed it may yet prove to be the source of further difficulties for you.

[34]     In the end, after considering the cases referred to by counsel and taking account of the matters I have already mentioned I am of the view that a small uplift from the 10 year starting point is required in your case.

[35]     So if you could stand up now please Mr McDonald.  I sentence you to life imprisonment for the murder of Keith Kahi.  I fix a minimum term of imprisonment that you must serve of 11 years.

[36]     So that is it Mr McDonald.  You are sentenced to life imprisonment and will not be eligible for parole until you have served 11 years. Take him down please.

Rebecca Ellis J