R v McRae

[2017] NZHC 1881

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-292-000363 [2017] NZHC 1881

THE QUEEN

v

MICHAEL MCRAE

Hearing:	8 August 2017
Appearances:	M K Regan and S R Norrie for Crown C Bennett for Prisoner
Judgment:	8 August 2017

SENTENCING BY PALMER J

Solicitors:

Kayes Fletcher Walker, Limited, Manukau

C H Bennett, Barrister, Manukau

R v MCRAE [2017] NZHC 1881 [8 August 2017]

Introduction

[1]      Mr  Michael  McRae,  you  have  pleaded  guilty  to,  and  been  convicted  of attempted murder, under s 173 of the Crimes Act 1961.

[2]      On 5 August 2016 you stabbed your step-mother 15 times: from behind while she was sitting in a chair and when she turned round after putting her 14 month old daughter, your half-sister, on the floor.  This was attempted murder.  It is a serious offence as reflected in the maximum sentence which may be imposed: 14 years’ imprisonment.   I now have to decide what sentence should be imposed for your offending.

Facts

[3]      On 5 August 2016 you were 16 and a half years old and living with your father and his partner, your step-mother, in Papakura.  That morning you looked after your 14-month-old half-sister briefly while your step-mother took her four-year old- son to day-care.  After she returned, you followed her around the house until you returned to your sleep out.

[4]      Around midday your step-mother sat down with her daughter in a reclining chair in the lounge.  She fell asleep but was woken by the kitchen door closing.  You approached her from behind and stabbed her multiple times with a 15 cm kitchen knife on her head, neck and shoulder.   She leaned forward to protect her daughter and you stabbed her in the back, puncturing her lung.  She put her daughter on the floor and turned to face you. You continued to stab her on her head, neck and hands. She resisted but you overcame that.  She said the expression on your face was not angry or happy but blank and expressionless.  You only stopped when you cut your own thumb and dropped to the floor and said “so sorry, so sorry”.  Your step-mother picked up her daughter and ran outside screaming for help before she collapsed in the street.  You made a 111 call to St John Ambulance.  When the Police arrived you were co-operative.

[5]      The Police found that a cell phone box in your sleep-out had been stabbed a number of times with the same knife that you used.  In texts on your cell phone to

your girlfriend on 10 July 2016 you said you had imagined killing your whole family and that when you saw a girl on the street one part of you wanted to be nice and sweet to her and the other part thought about what her head would look like on a stick.  On 11 July 2016 you had searched on your computer for “best place to stab and kill”.  The previous day to the offending, on 4 August 2016, you had made a number of searches on the computer including for “best serial killer movies” and “stabbing and raping porn” among other things.  At 11.14 pm, in response to your father wishing you goodnight, you texted “tomorrow’s definitely going to be different”.  That morning you liked a comment your father made on Face book about how happy he and your step-mother were in their relationship.

[6]      Since the offending you have participated in family group conferences.  You pleaded guilty relatively early in the Youth Court.   You have the support of your parents.

Reports

Victim

[7]      I have seen a victim impact report.  Your step-mother is from Thailand where she met your father four years ago.  She moved to New Zealand in November 2013 and she says they were engaged to be married.

[8]      Your step-mother sustained a punctured lung, fractured rib, cuts to her jaw and neck and face and hands and scalp and back.  Since then she has suffered from panic attacks, flashbacks, nightmares and cannot sleep.   She cannot bend over or pick up her children.  She takes pain medication five days a week.  She has returned to Thailand and may not return to New Zealand.  If she does not, she says she and your father will separate.  She said in her Victim Impact Statement that she doesn’t think she will ever be the same again, she doesn’t think her family will ever be the same.

Pre-sentence report

[9]      The   Department   of   Corrections   prepared   a   pre-sentence   report   after interviewing you.  The Department considers you as at high risk of harming others and high risk of re-offending.  They suggest you have shown some remorse and that you understand you lost the trust of your family.  The Department says you want to write a book or books, which would be a good thing to do, depending on what they are about.  The Department also says you have an interest in psychopathic characters and have fantasised about hurting others.  They say you reported trying to attack one of your closest female friends with a knife two to three weeks prior to your attack on your step-mother, but you didn’t go through with it.  The Department says that you have advised the attack was pre-meditated but the selection of victim was impulsive. There is no suggestion of alcohol or drug problems.  The Department recommends a custodial sentence.

Psychologist reports

[10]     I also received some psychological reports.

[11]     You were first referred to Whirinaki Child and Adolescent Mental Health Services in 2012 and 2013.   Most recently, in June 2016, you were referred to Whirinaki due to concerns about depression and suicidal intent.  Two days later you overdosed on iron tablets.   You were prescribed an anti-depressant and an anti- psychotic.  You have said on various occasions you did not take your medication and stockpiled them for an overdose.  The day before the attack you were interviewed by a psychiatrist who considered you displayed no signs of mental illness.

[12]     I have seen three reports about your mental health, all done for different purposes.    A forensic  psychiatrist  and  a  clinical  psychiatrist,  Dr  Gardiner  and Dr Billing,  reported  in  September  2016  on  your  fitness  to  stand  trial.    They concluded you were fit to stand trial.  A consultant psychiatrist, Dr Duff, reported in December 2016 on whether a defence of insanity was available.    She concluded it was not.  In March 2017 another forensic psychologist, Dr Lascelles, assessed your

risk of further serious violent offending.   He considered that risk as high over the next year, with the potential for grievous bodily harm or death for future victims.

[13]     There is  little certainty in  these reports  in diagnosing  your mental  state. There is some reason to think you suffer from depression.  There is concern that you may be in an early stage of psychosis which will only be confirmed by ongoing monitoring. And your youth means that your mental state is likely to change.

[14]     I note, in particular, the March 2017 report of Dr Lascelles.  He reported you first thinking about killing others in October 2015, along with extensive grievances against  family  members.    Eventually,  he  said,  you  had  hundreds  of  homicidal thoughts a day.  Since being in custody he noted that you had self-reported thoughts of killing a staff member in January 2017.  Dr Lascelles considered the risk you pose could alter over relatively short periods of time.  He noted encouraging signs in your response  to   medication   and   considered   your   risk   of  violence  may  decline significantly in future but that would depend on changes in your pre-occupation with violence, your homicidal thoughts, your perception of mistreatment by others and your  development  of  coping  strategies.     He  considered  it  possible  a  further assessment could support reduced risk with some confidence but he also noted that as you mature, your potential for concealing ongoing homicidal thoughts will increase.  He considers your condition is complex and requires ongoing intervention through psychiatric oversight with medication and psychological therapy.

[15]     Dr  Lascelles  was  concerned  about  your  ability  to  adjust  to  a  prison environment and considered it critical that there be close collaboration  between mental health services and the Department of Corrections’ Psychologists Office to ensure the Department is adequately informed of your risk and needs and can treat you as early as possible.

Approach to sentencing

[16]     Mr McRae, in sentencing you, I must first set a starting point based on the offending here compared with other previous similar cases.1   Second, I must consider

your personal circumstances and adjust the starting point based on any aggravating or mitigating factors. Third, I must consider a discount for pleading guilty.

[17]     Sentencing is conducted for the purposes, and according to the principles, set out in ss 7 and 8 of the Sentencing Act 2002.   In particular I have regard to the purposes of:

(a)       holding you accountable for the harm you have done to your step- mother and the community;

(b)promoting in you a sense of responsibility, and acknowledgement for that harm;

(c)       denouncing   your   conduct   and   deterring   you   and   others   from committing similar offences;

(d)      protecting the community from you; and

(e)       assisting in your rehabilitation and reintegration into the community. [18]     I take into account the gravity, culpability and seriousness of the offending

and the general desirability of consistency in dealing with similar offenders committing similar offences in similar circumstances.   In addition to the other required factors, I take into account the effect of the offending on your family and the community, the requirement to impose the least restrictive outcome in the circumstances, your personal background and your particular circumstances which affect the severity of sentence for you.

Starting point

[19]     The Crown submits the offending is analogous to what is called a third band of grievous bodily harm offending as set out in the guideline judgment of R v Taueki, which is nine to 14 years imprisonment.2   The Crown submits having regard to the aggravating factors here, a starting point of 11 to 12 years would be appropriate. The

Crown submits your offending was more serious than that in a similar case of R v Walker.3   There, the offender grabbed his ex-partner and stabbed her with a kitchen knife at least 15 times, stopping only when the knife broke.  The starting point there was ten years due to the frenzied nature of the attack, the degree of premeditation, the vulnerability of the victim and the level of determination of the offender.

[20]     Your counsel, Ms Bennett, accepts that the facts in Walker are analogous to your offending but she submits the offender in Walker was motivated by feelings of antipathy, which are absent here.  She submits the starting point should be around nine years.

[21]     I agree it is lawful and desirable to use the Taueki bands and aggravating factors as a guide to establishing the starting point.  Attempted murder and grievous bodily harm have the same maximum penalty of 14 years’ imprisonment.  In general, slightly longer sentences are imposed for attempted murder given the murderous intent required.

[22]     I also agree with the Crown that your offending is more serious than that in Walker.  Your level of violence was extreme, unprovoked, prolonged, and gratuitous. You attacked your step-mother from behind.  You aimed at her head.  You used a weapon.   She was particularly vulnerable sitting down, with her 14-month-old daughter in her arms. You had premeditated an attack, as illustrated by your searches and your texts.  The injuries suffered by your step-mother are clearly serious.  Your lack of antipathy to her does not, in my view, help your case.

[23]     I set a starting point of 11 years’ imprisonment.

Personal circumstances and aggravating or mitigating factors

[24]     I now consider your personal circumstances and then whether they disclose aggravating or mitigating factors.

[25]     The Crown submits a discount of up to ten per cent may be available to account for your psychological state at the time of the offending.  That is similar to

the discount in Walker for what the psychologist there described as context. You had been similarly diagnosed with depression and  were not taking  your medication. Ms Bennett does not take issue with the proposed discount.

[26]     You were seen by a psychiatrist the day before the offending who saw no overt evidence of you having a serious mental health condition. You are said to have struggled with whether to attack, while following around your step-mother.  On the other hand, the frequency with which you had homicidal thoughts, the nature of the offending itself, and  your subsequent self-reported risk while in custody clearly indicates there were, and are, issues with your mental health.   The psychological reports suggest you may be in the early stages of psychosis.   Those reports also suggest you have every chance of dealing with that, with help and treatment, if you wish to do so. The Court of Appeal has said mental disorder may mitigate a sentence if it caused the offending, moderates the culpability or renders less appropriate or

more punitive a sentence of imprisonment.4     I do not consider the psychological

reports sustain any of those conditions.  And your mental state is clearly going to be subject to change over the next few years, which effectively would be reflected in a discount for your youth.

[27]     The Court of Appeal has also said mental impairment may affect the risk of a repetition of offending.5     I doubt prison will be the best environment for you, as Dr Lascelles’ report suggested specifically.  But I am concerned about the risk you pose to the public on an ongoing basis.   And I consider being in prison, if you receive treatment, or on parole and subject to conditions regarding mental health treatment, may be better for you than being out in the community.   I consider the need to ensure you receive rehabilitative treatment means your sentence should not be reduced for mental health issues in the unusual circumstances here.

[28]     As your counsel said, the Court of Appeal in Churchward v R has said youth is relevant to sentencing because there are age-related neurological differences between young people and adults, the effect on young people of long sentences may

be greater, and young people have greater capacity for rehabilitation.6    The Crown agrees there is no presumption, or upper limit, on a discount for youth.  It submits any discount should be tempered by the seriousness of the offending and the risk of ongoing violence. The Crown suggests a 15 per cent discount may be appropriate, as it was in R v Marino.7   Ms Bennett does not take issue with that.  She submits your age and lack of emotional maturity will impact on the effect imprisonment will have on you and she cites the last psychological report.

[29]     Your offending was serious, the harm caused was serious and your risk of further offending is concerning. You were 16 years and seven months old at the time of the offending.   At that age your mental state can change rapidly as the psychological  reports  suggest.    You  are  a  first  time  offender  and  your  counsel submits you have been of good character.  You have a greater prospect of getting your life back on track than an adult offender does.  I consider this complex mix of factors is best reflected by reducing your sentence by around 20 per cent – by 26 months.

[30]     In addition, it is usual for a guilty plea to be recognised by a discount of

25 per cent.  You pleaded guilty at an early stage.  At least, in that, you have saved your step-mother and family further anguish and you have saved the taxpayers the expense of a trial.  I reduce your sentence by around 25 per cent or 27 months.

[31]     Mr McRae, I do not know enough about you or about your psychological demons to offer you advice about how to deal with them.  Professional advice can help with that.  But the most important thing will be whether you decide you want to deal with them.  It is not a matter of other people paying attention to you or treating you rightly or wrongly.  It is a matter of what sort of a life you want. You can choose to treat this experience as a wakeup call, to seek help to try to get on with your life, and your state of mind and to get them back on track to live a happy and productive life with your family and your friends.  I suggest you would be happier if you did that. There is no glory or future the other way.

[32]     There is one more legal matter I must deal with.

Minimum period of imprisonment

[33]     The Crown proposes I impose a minimum period of imprisonment on you of

60  per  cent  of  your  end  sentence,  under  the  Sentencing Act  2002.    That Act empowers me to impose a minimum period if I am satisfied the period otherwise applying is insufficient for certain purposes.  The Crown submits the need to protect the community from you is paramount.   It suggests the Walker case, again, is analogous where there was premeditation, a lack of genuine remorse and a high level of danger, particularly to any female with whom you are in a relationship.  It also

refers to two cases: R v DP;8 and R v Taipari.9

[34]     Ms Bennett submits, on your behalf, a minimum period of imprisonment is not justified, given your age and maturity.   She notes Dr Lascelles’ assessment in March 2017 that you were at high risk for a year and that the risk can alter over short periods of time.   She submits you will require ongoing intervention, as the psychological reports suggest.  She suggests the Parole Board will be best placed to assess your suitability for release, on the basis of updated reports and risk assessments.

[35]     I do take this moment to acknowledge the inadequacy of sentencing a 17- year-old with mental health concerns to a substantial term of imprisonment in an adult prison.  Ms Bennett tells me the psychological assistance you were receiving in the Youth Justice Facility in which you were located has ceased and been transferred to an adult facility.  I will request Corrections to assist you and provide you with the support  you  need,  and  which  your  parents  so  wish  you  to  have,  to  help  you understand and overcome what has led you to this point.

[36]     The issue of a minimum period of imprisonment is difficult.  I am balancing the risk to public safety in the short term, of your early release if judged appropriate by the Parole Board, with the risk to the public safety in the longer term, of your

later release after being in prison longer and having less time subject to parole conditions.

[37]     In the end I consider the Parole Board is in a better position to assess whether and when you will be ready for release, on the basis of reports of your progress, than I am now, before seeing any such reports.  The Parole Board will, no doubt, bear in mind  the  reports  I  have  received  about  your  risk  of  further  violent  offending alongside whatever future reports they receive about your rehabilitation and treatment.  I do not impose a minimum period of imprisonment.

Name suppression

[38]     Finally, I note that Ms Bennett had, on your behalf, applied for permanent name suppression but on instructions has abandoned that application.

Sentence

[39]     Mr McRae, please stand.   You will be imprisoned for six years and seven months, subject to parole when that is appropriate.  Your name suppression has now ended.

[40]     I draw formally to the attention of the Department of Corrections that it is critical  there  is  close  collaboration  between  mental  health  services  and  the Department of Corrections’ Psychologists Office to ensure the Department is adequately informed of Mr McRae’s risks and needs and treats him as early and as effectively as possible.   Mr Regan, as the legal representative of the Crown I ask you, personally, to draw that to the attention of the Department.

[41]     Please stand down.

Palmer J