R v McHugh
[2015] NZHC 2389
•1 October 2015
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI-2014-016-0008 [2015] NZHC 2389
THE QUEEN
v
TROY VINCENT MCHUGH
Hearing: 1 October 2015 Appearances:
C R Walker for Crown
N Sainsbury for DefendantSentence:
1 October 2015
SENTENCING REMARKS OF LANG J
R v MCHUGH [2015] NZHC 2389 [1 October 2015]
[1] Mr McHugh, you appear for sentence today after having been found guilty by a jury of several charges. They are charges of murder, aggravated robbery, recklessly discharging a firearm, conspiring to pervert the course of justice, wounding with intent to injure and dishonest use of a document.
[2] The maximum sentences on those offences range from life imprisonment on the charge of murder down to seven years on all of the remaining charges other than that of aggravated robbery. The maximum sentence of 14 years is available on the charge of aggravated robbery.
The facts
[3] The facts that give rise to the charges were fully canvassed at trial and, as trial Judge, I have a good appreciation of them. The charges fall into three groups.
The events that occurred on 20 April 2014
[4] The first group of charges comprises those of murder, aggravated robbery and recklessly discharging a firearm. All of those charges arose out of an incident that occurred in the early hours of 20 April 2014. That was Easter weekend.
[5] The evidence established that during the days leading up to Easter you had been in Auckland selling cannabis. You returned to Gisborne on or about the Friday. You had received information from your then partner, Ms Dalrymple, that drugs were being sold from an address in Gisborne occupied by Mr Whatuira. On Saturday 19 April, you went to that address on at least two occasions in order to purchase drugs. You therefore knew that drugs and money were being held at the address.
[6] It is clear that you then formulated a plan to rob Mr Whatuira of drugs and money. In the early hours of the Sunday morning, you went to an associate’s address some distance out of Gisborne. You had been storing firearms and ammunition at this address. You had also been obtaining cannabis from him to sell. You uplifted a
.22 rifle and a quantity of ammunition. You then drove back into Gisborne. The
jury’s verdict makes it clear that the driver of the vehicle was Ms Dalrymple.
[7] You then went to Mr Whatuira’s address wearing a partial disguise. You obtained entry to the address through an insecure window at the rear of the property. You then walked through into a bedroom area where Mr Whatuira was sitting on a couch. Unknown to you, he had a visitor at that time. Mr Douglas Din Witere had arrived some time earlier to visit Mr Whatuira, and the two men were sitting in the lounge conversing when you walked in.
[8] As soon as you walked in, you pointed the firearm in the direction of Mr Whatuira. You then discharged a shot, and the bullet travelled through the top of the couch on which he was sitting, through the wall of the home and through a boundary fence. The bullet was later found in the driveway of a neighbouring address. You then demanded drugs and money from Mr Whatuira.
[9] At that point Mr Witere said words to the effect of “Are you really going to point that gun at us Troy?” You then turned to face Mr Witere. You mimicked what he had said, and you pulled the trigger. That caused a bullet from the .22 rifle to enter Mr Witere’s forehead between his eyes. Although he lived for a short time after that, the wound was unsurvivable.
[10] Rather than leave the address or seek help for Mr Witere, you turned your attention back to Mr Whatuira. You again demanded drugs and money. Not surprisingly, he was incredibly shocked and distressed by what he had just witnessed. He turned the couch over and pulled out a container of drugs. He then threw the container and some money towards you. As you bent down to pick it up, he took the opportunity to depart from the address through a window. He then climbed fences and sought refuge in a neighbouring address. The police were called at that point.
[11] You did not stay to give aid to Mr Witere. You did not call the emergency services to say that a man was critically injured at Mr Whatuira’s address. Instead, you went back out onto the street where your partner was waiting in the motor vehicle. At or about that point, you got out of your clothing and into fresh clothing. You then had your partner drive you to an associate’s address. There you took the firearm down to the back fence of the property and threw it over the fence. You then knocked on the door of your associate’s address and asked to speak to another person
at the address. You were arrested a short time later, but denied any involvement in the incident that led to Mr Witere’s death.
[12] The charges that were laid as a result of this incident arise out of the robbery, or attempted robbery, of Mr Whatuira, the fact that you fired a rifle in close proximity to him, and the fact that you killed Mr Witere whilst you were carrying out the armed robbery.
Conspiring to pervert the course of justice and dishonest use of a document
[13] The second charge that needs to be considered is that of conspiring to pervert the course of justice. This arose after you were sent to Rimutaka Prison whilst on remand awaiting trial. From about September 2014 until February 2015 you were in a cell adjacent to that occupied by a Mr Wickliffe. Mr Wickliffe is a person who has spent a great deal of his adult life in prison.
[14] The evidence at trial relating to this charge was based largely on evidence given by another inmate in the unit at that time, Mr Nathan Taal. He came forward because he was concerned about the way in which you were dealing with Mr Wickliffe. In short, his evidence was that at some stage around Christmas 2014, you talked to him (Mr Taal) about the charges you faced. You said words to the effect that you had no defence to the charges relating to the death of Mr Witere because there was an eye witness. He then heard you on one occasion at a meal time say to the inmates in the unit that there was $100,000 available to anyone who was prepared to put themselves in Gisborne at the time of the incident giving rise to that charge. The inference obviously to be taken from this is that you were prepared to pay somebody to say that they were the person who had shot Mr Witere.
[15] Mr Taal said that everybody else laughed, but Mr Wickliffe appeared to take the offer seriously. Mr Taal then became concerned when he saw deliveries of groceries to Mr Wickliffe taking place in circumstances where he knew that Mr Wickliffe did not have the means to pay for them himself. He also saw Mr Wickliffe reading the disclosure documents that related to your trial.
[16] On 2 February 2015, Mr Wickliffe gave an oral statement to his lawyer. His lawyer then prepared a transcript of what Mr Wickliffe had said, and provided it to the Crown and the police. In this statement, Mr Wickliffe gave a detailed account of how he had travelled to Taupo on the weekend of 20 April and had there obtained a car in which he had driven to Gisborne late on the night of 19 April. He said that he had gone to your address in the early hours of the morning to ask for a firearm. He said that he told you that he wanted the firearm to go and shoot some mutton. He said that you told him that you did not have a firearm at your address, but that you would take him to an address where he could get a firearm. The two of you then drove to this address where you uplifted the firearm. The statement went on to say that Mr Wickliffe had gone to Mr Whatuira’s address, and then gave a description of events that had occurred within the address. Mr Wickliffe gave as his motive for the attack his understanding that associates of his in Wellington had been ripped off in some way in drug dealings with Mr Whatuira.
[17] The statement was carefully crafted so as to provide a defence to Mr Wickliffe in the event that he was later charged as a result of the incident. It described Mr Whatuira lunging for the firearm and the firearm being discharged accidentally in the skirmish that followed. In short, Mr Wickliffe took responsibility on your behalf for the shooting of Mr Witere.
[18] That series of events led to the police investigating the claim. They attempted to interview Mr Wickliffe a short time after they obtained the statement from his lawyer. He began talking to the police, but when it came to important features about the incident he withdrew from the interview saying that he felt uncomfortable that he could not provide matters of detail. The trial which was at that stage scheduled to commence on 9 February 2015 had to be adjourned. That was at great inconvenience not only to the Crown and defence, but also to victims and witnesses who were gearing up to attend the hearing on 9 February.
[19] The police interviewed people who had been with Mr Wickliffe in Taupo over the Easter weekend. This evidence demonstrated that he had been left at a camp ground in Taupo at about 9 pm on the evening of 19 April. At that time he had no access to a vehicle. He was then back at the camp ground when his then partner
arrived to pick him up at or about 8 am the next day. Theoretically, of course, it may have been possible for Mr Wickliffe to somehow have obtained a vehicle and driven to Gisborne and back between 9 pm and 8 am. The reality, however, is that that version of events is highly improbable and was never going to be accepted by a jury.
[20] Thankfully, Mr Wickliffe resiled from the statement that he had made to his lawyer and to the police, and pleaded guilty to the charge of conspiring to pervert the course of justice. You, however, maintained your innocence and indeed relied on Mr Wickliffe’s version of events when giving evidence at the trial. Clearly the jury rejected the evidence completely, as do I. As the Crown points out, you committed perjury when giving your version of events under oath before the jury. So that series of events has led to the charge of conspiring to pervert the course of justice.
[21] Another charge that arises out of this series of events is that of dishonestly using a document. On Mr Taal’s evidence, you told other inmates that $100,000 would be available to anyone who was prepared to assist you to defend the charge. Mr Taal was of the understanding from his discussions with you that you had arranged a false insurance claim relating to a burglary of the garage at your address in Gisborne. You said that you would use the proceeds of this claim to pay Mr Wickliffe. When the police investigated this aspect of the matter, they found that you had indeed lodged a claim with an insurance company. You had done so on the basis that the garage of your address had been burgled on the day that you were arrested. You said that a considerable amount of property had been stolen in the burglary. The insurance company had approved the claim and were about to forward a cheque for the sum of approximately $31,000 to you shortly after the police made contact with them. Thankfully, the police stopped that particular aspect of your plan from proceeding any further. So in addition to having Mr Wickliffe take false responsibility for your acts, you were prepared to defraud an insurance company in order to carry out that purpose as well.
Wounding with intent to injure
[22] The final charge arises out of an incident that occurred in August 2013. It involved another victim, a Mr Joseph Davies. On the evening of 28 August 2013,
you and Mr Davies had gone with others to a bar in central Gisborne. There, you were playing pool for money. You beat Mr Davies in several games of pool, and this meant that he owed you a total of $200. It transpired that he did not have money on him to pay the debt. You went with him to an ATM machine, but this failed to produce the money. You then told him that he owed you $200 and that he was to come back to your address.
[23] You and Mr Davies went back to your address accompanied by others. When you got there, you again reminded Mr Davies that he owed you $200 and you told him that you were going to shoot him in the leg in order to square the debt. You then left the room before returning a short time later with a .22 rifle. You made Mr Davies stand in such a position that his leg was exposed. You discharged the firearm at close range, causing a bullet wound to his leg. It appears that the bullet passed right through his thigh, although thankfully it did not sever any major organs.
[24] The bizarre aspect to this particular incident is that Mr Davies appears to have cooperated to a large extent in your efforts to shoot him. In addition, he remained at your address until the morning playing cards and drinking alcohol. He remained there until he complained of pain in his leg, at which time you dropped him at the hospital. When the police and doctors endeavoured to question him at the hospital as to how he had received his injury, he refused to say anything. It appears that it was not until the police were investigating the murder of Mr Witere that they became aware of this earlier incident involving Mr Davies. The Crown led the evidence at trial to demonstrate your propensity to use firearms to shoot people at the slightest provocation.
Sentencing Act 2002
[25] Against that background, I am required to have regard in imposing sentence to the purposes and principles of sentencing contained in the Sentencing Act 2002 (the Act). In any case involving offending of this magnitude, issues of deterrence and denunciation must be to the forefront. The courts must impose sentences that are designed to deter you and others who might act like you in the future from acting in this particular way.
Life imprisonment
[26] There is really little dispute about the main sentence to be imposed in this case. In any case where an offender has been convicted of murder the courts are required to impose a sentence of life imprisonment, unless it would be manifestly unjust not to do so.1 There is nothing about your personal circumstances or this offending to suggest that a sentence of life imprisonment would be manifestly unjust. Indeed, your counsel candidly accepts that a sentence of life imprisonment must be
imposed.
Minimum term of imprisonment
[27] The real issue in the present case is the minimum term of imprisonment that the Court must impose as an adjunct to the sentence of life imprisonment.
[28] A minimum term of imprisonment is not the sentence that the offender will serve. Rather, it is simply the period of time that the offender must wait before being allowed to apply for parole. It is always the Parole Board’s decision as to when an offender serving a sentence of life imprisonment is released on parole. The Parole Board can decide that an offender will never be released. The Parole Board can decide that an offender must wait 30 years before being released. To the forefront of the Board’s considerations will be the question of the risk that an offender poses to society in the future. It is therefore important that those in Court understand that the minimum term does not reflect the sentence you will serve.
[29] In practice, you will also be subject to the sentence of life imprisonment for the balance of your life. This means that, even you are released, you can be recalled to prison to continue serving the sentence of life imprisonment at any stage in the event that you commit offences in the future.
[30] Two aspects of your offending mean that s 104 of the Sentencing Act 2002 is engaged. They are the fact that the offending took place within the sanctity of the victim’s home. The second is that the offending occurred whilst in the course of
other serious offending. In your case the offending occurred after you entered Mr
1 Sentencing Act 2002, s 102(1).
Whatuira’s home. You were there to commit the serious offence of armed robbery. As a result, s 104(1) of the Act requires the Court to impose a minimum term of imprisonment of not less than 17 years unless to do so would be manifestly unjust.
[31] In the present case, both counsel acknowledge that there is nothing about your offending, or your personal circumstances, that would render imposition of that minimum term unjust. So the minimum term that the Court must impose on you is one of at least 17 years.
[32] I have to say that, even apart from the existence of s 104, the minimum term of imprisonment that I would have imposed on you would be one of, or very close to, 17 years having regard to the aggravating factors relating to your offending. These include the premeditation, the use of a disguise, the entry into the home in the dead of night, the discharge of two shots, one of them fatal, and then your departure from the scene taking money and drugs. Looking at the matter in the round, this is clearly the type of case that Parliament had in mind when it passed s 104. There can really be no dispute but that a sentence of at least 17 years must be imposed.
Should an uplift to the minimum term be imposed?
[33] The issue that counsel have addressed me on this morning is whether or not I
should go beyond the minimum term of 17 years imprisonment.
[34] The Crown says that the minimum term of 17 years imprisonment would be manifestly inadequate to recognise the magnitude of your other offending. It says that that offending must be given concrete recognition by an uplift in the minimum term of imprisonment that I should impose. It submits that the offending against Mr Davies warrants an uplift of at least two years imprisonment. It then says that the charges relating to your use of Mr Wickliffe to provide a false defence should attract another two years imprisonment.
[35] In considering this issue, I have had regard to a number of other cases. These include R v Holl, Thorgood v R and R v Curran.2 In R v Holl, the offender had
2 R v Holl [2013] NZHC 2932; Thorgood v R [2012] NZCA 23; R v Curran HC Tauranga CRI-
2005-070-6292, 1 February 2008.
brutally murdered his mother with an axe. This brought into play the provisions of s 104, meaning that a minimum term of imprisonment of 17 years was appropriate.
[36] In a separate incident, the offender had attacked another person with a rock, causing him to fall to the ground. Although the injuries to that person were relatively minor, the offender said later that his purpose in attacking that person had been to paralyse someone or to put them into a coma. This resulted in the sentencing Judge increasing the minimum term of imprisonment by one and a half years.
[37] In Thurgood v R, the offender had brutally killed his estranged partner by stabbing her on numerous occasions. The brutality of the attack led the sentencing Judge to say that a minimum term of imprisonment of 18 and a half years was required. He then added six months to that minimum term to reflect the fact that the offender had tried to place the blame on his son. This had led to a charge of perverting the course of justice, so an increase of six months was applied to reflect that factor.
[38] Your counsel submits that a minimum term of 17 years is sufficient to address all of the sentencing principles that the Court is required to take into account. He also points out that it will be for the parole authorities ultimately to determine the point at which you should be granted parole. Furthermore, he points to the fact that your past gives no hint as to the type of offending for which you appear for sentence today. You have a reasonable number of previous convictions, most of which are for driving with excess breath alcohol. You have no previous convictions, however, in respect of any criminal offending that approaches the magnitude of the charges on which the jury found you guilty.
[39] You have also provided a large number of testimonials from friends and family, who say that, up until recently, you have been a loving member of the family. Your counsel submits that this can give the Court hope that you can be rehabilitated.
[40] When I read those testimonials, it brought to mind the grieving of Mr Witere’s family and friends. I have addressed them separately before my sentencing remarks, but now do so formally. You must be aware in advancing your own
attributes that your victim also had many. Mr Witere was an innocent victim who had not provided any form of provocation to you. The Crown suggests that this was an execution in cold blood. I am not sure I would go so far as to say “execution”, because the killing of Mr Witere was not pre-planned. Nevertheless, it was certainly cold blooded murder.
[41] I accept your counsel’s submissions as far as they go, but the difficulty I have is that at present you show no remorse whatsoever for your actions. Indeed, you do not accept responsibility for them. You continue to deny that you were involved in any way in the events that led to Mr Witere’s death. As matters presently stand, therefore, issues of rehabilitation are a long way in the distance.
[42] I have been driven to the conclusion that discrete recognition needs to be given to the other offending. The attempt to pervert the course of justice was particularly serious. It had wide-ranging effects from the adjournment of the trial to the further police investigations and, now, the inevitable imprisonment of Mr Wickliffe as well as yourself. It would ordinarily attract a sentence of about four and a half years imprisonment, because it falls just above the mid-range in terms of seriousness of offending of its type. I consider that it would be wrong in principle for the Court to ignore this aspect of your offending. I consider that the minimum term should be increased by one year three months to reflect that fact.
[43] The offending in relation to Mr Davies should also be marked by a discrete uplift. As I have already indicated, this had some bizarre characteristics, but it involved the deliberate shooting of another human being at close range for little or no real purpose. It caused significant pain to the victim and caused him to be off work for some time.
[44] Ordinarily, I consider that this offending would attract a starting point in the vicinity of around three years imprisonment. I propose to increase the minimum term of imprisonment by nine months to reflect that offending.
[45] This means that a minimum term of imprisonment of 19 years is produced. I consider that to be an appropriate outcome. The Crown’s submission that a minimum term of imprisonment of 21 years imprisonment is justified is misplaced in my view. It means that it would be in the same category of offending as that in R v Curran.3 In that case, the offender had brutally killed a two and a half year old girl by bashing her head against a hard object such as a floor. He did so when entrusted with the care of the child whilst her mother was away from the home. This offending attracted a starting point minimum of 18 and a half to 19 years. The
minimum term was increased to reflect the fact that, at the time of the offending, the offender was subject to a 24 hour curfew on another charge of murder. This meant that a minimum term of imprisonment of 21 years was appropriate. I consider that the facts of that case are more serious than those in your case, although in saying that I do not in any way minimise the seriousness of your offending.
Sentence
[46] On the charge of murder, you are sentenced to life imprisonment and you are ordered to serve a minimum term of 19 years imprisonment. On the charge of aggravated robbery, you are ordered to serve a sentence of seven years imprisonment. On the charge of recklessly discharging a firearm, you are sentenced to three years imprisonment. On the charge of conspiring to pervert the course of justice, you are sentenced to four and a half years imprisonment. On the charge of dishonestly using a document, you are sentenced to two years imprisonment. On the charge of wounding with intent to injure, you are sentenced to three years imprisonment. All of those sentences are to be served concurrently.
[47] Stand down.
Lang J
Solicitors:
Crown Solicitor, Napier
Counsel:
N Sainsbury
3 R v Curran, above n 1.
5
0
0