R v Middleton

[2012] NZHC 3261

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2011-020-003980 [2012] NZHC 3261

THE QUEEN

v

JOHNATHON WALTER MIDDLETON

Counsel:         N M Graham for Crown

A Malik for Prisoner

Sentence:       5 December 2012

SENTENCING NOTES OF COLLINS J

Introduction

[1]      Mr   Middleton,   you   have   pleaded   guilty   to   murdering   your   father, Walter Middleton at Havelock North on 9 November 2011.

[2]      The Crown and your counsel accept that in the circumstances of this case you must be sentenced to life imprisonment.  The sole issue that I must determine is the minimum period of imprisonment that must be imposed.   There is little disparity between the Crown’s submissions on what the minimum period of imprisonment should be, and the submissions which your counsel has made in relation to this issue. Your counsel urges me to impose a minimum period of imprisonment of ten years.

The Crown suggests a minimum period of between 11 to 12 years.

R V MIDDLETON HC NAP CRI-2011-020-003980 [5 December 2012]

(1)       explain your offending;

(2)       analyse your personal circumstances;  and

(3)       compare your case to others of a similar nature.

Your offending

[4]      On the night of 9 November 2011 you were at home drinking.  Your father arrived  home.    For  no  apparent  reason  you  took  a  steak  knife  and  stabbed Mr Middleton twice.   One wound was in the neck.   Your father died from this wound.

[5]      When the police arrived you immediately surrendered yourself.  You told the police to arrest you, saying that you had just killed your father.   You said to the police that you wanted a “break from the shit” and that you said to your girlfriend you were going to do something to someone in order to go to jail.  You could offer no further explanation to the police.

[6]      The impact of your offending on your family and the friends of your father has been enormous.  Your family are heartbroken and they are struggling to come to terms with the loss of a man who was dearly loved.  Your family cannot understand your actions and they will never understand your behaviour.

[7]      I am very grateful to Ms Kelly for the words that she has conveyed to me on behalf of the Middleton family.  She understandably asks why you did this to a man who did all he could to help you.

[8]      I have had the benefit of a pre-sentence report and a report prepared by Dr Barry-Walsh, a psychiatrist, who examined you to assess your state of mind at the time of the offending.

[9]      You left school at the age of 14 and became an intravenous drug user from this time until you were about 25 years old.  You abused alcohol and regularly drank large amounts.   This impacted on your abilities in the past to attend courses, job interviews  and  to  get  work  experience.    You  have  been  taking  medication  for Hepatitis C and anti-depressants.

[10]     You are now 32 years old.   You were raised by your mother and the late Mr Middleton.    You  have  described  yourself  as  having  a  good  upbringing  and described your relationship with Mr Middleton in very positive terms.

[11]     Dr Barry-Walsh details your heavy use of drugs and alcohol.  He points out that past interventions have been ineffective.   There are no signs of active mental illness.  But in his report Dr Barry-Walsh concludes that you have:

a long history of poly substance dependence and major dysfunction in personality.  A worsening in [your] mental state with increasing disturbance of  mood  preceded  the  offending.    [You]  had  difficulty  in  articulating thoughts  and  feelings  and  considerable  uncertainty  remains  following [Dr Barry-Walsh’s] assessment about [your] motivations and [your] mental state at the time of the offending.

[12]     You have 50 previous convictions dating back to 1997.  Many of these are dishonesty and driving related matters.  You have convictions for fighting in a public place, male assaulting a female (x5), threatening to kill (x3) and assault (x2).

Comparison with similar cases

[13]     I have had the benefit of a number of cases referred to me.  I will refer to some of them:

(1)       In Brown v R,[1]  Mr Brown was intimidating Ms Nonu in a car park.

[1] Brown v R [2011] NZCA 95.

The victim came out of the building and tried to assist Ms Nonu.  In the course of doing so Mr Brown pulled a 20 centimetre knife and stabbed  the  victim  in  the  chest.    A 16  year  minimum  period  of imprisonment was imposed.  Aggravating features were identified as being the taking of a knife into a public place with the intention of using it and the deliberate attack of an innocent bystander to a vulnerable part of the body.

(2)In R v Pepene,[2] Mr Pepene got into a fight with a purchaser during the course of a methamphetamine deal at which point Mr Pepene used a knife to inflict three stab wounds, including a fatal one to the victim’s chest.  Aggravating features were the use of a weapon, the extent of the harm, the fact the offending took place in the context of a drug deal, efforts to avoid prosecution and the bringing of the knife.   A minimum period of imprisonment of 11 years was imposed. An uplift for  previous  convictions  and  a  discount  for  remorse  kept  the minimum period of imprisonment at 11 years.

[2] R v Pepene HC Auckland CRI-2009-044-7883, 13 December 2010.

(3)In R v Simi,[3] Mr Simi became angry with the victim and asked him to leave his house.  He then took a knife and drove off in search of him. Once he found him he stabbed him in the heart and around his body. A ten year minimum period of imprisonment was imposed.

[3] R v Simi HC Auckland CRI-2009-092-5011, 16 July 2010.

(4)In  R  v  Callaghan,[4]   Mr  Callaghan  pleaded  guilty  to  murder  and attempting to pervert the course of justice.   The murder arose in a domestic setting.  Mr Callaghan hit his former partner several times around   the   face   and   head.      One   of   those   blows   was   fatal. Mr Callaghan then tried to conceal his offending.  Venning J imposed a minimum non-parole period of 11 years for the murder which was

[4] R v Callaghan [2012] NZHC 596.

increased to take account of the charge of attempting to pervert the

course of justice.  The final non-parole period was 13 years and eight

months’ imprisonment.

(5)In  R  v  Millar,[5]   a  minimum  non-parole  period  of  ten  years  was imposed.   In that case Mr Millar was at a social event.   Something was said which annoyed him.  He took a knife from the kitchen.  A scuffle developed.  Mr Millar stabbed the victim in the neck.  Lang J started off with a minimum non-parole period of 11 years which he reduced by one year to take account of Mr Millar’s guilty plea and the fact he suffered Asperger’s Syndrome.

(6)In R v Mahuki,[6] Andrews J imposed a minimum period of ten years’ imprisonment.   In that case an argument broke out between people who had been drinking.  Mr Mahuki got a knife and inflicted a fatal stab into the victim’s chest.

[5] R v Millar HC Auckland CRI-2010-090-5044, 21 June 2011.

[6] R v Mahuki HC Hamilton CRI-2009-019-8099, 3 September 2010.

[14]     In R v Bunt,[7] Asher J noted that murder sentencing, because of its gravity and the open nature of the life sentence is a special sentencing category.   His Honour pointed out that there is no set formula for applying a discount for a guilty plea in a case of murder.   Each case is fact specific.   My task is to try and ensure your sentence is comparable to those imposed in similar circumstances to yours.

Analysis

[7] R v Bunt [2012] NZHC 1288.

[15]     The circumstances of your offending involve a little, but not a great deal of premeditation.  You appear to have killed your father because you were angry and frustrated with yourself and not because you bore any animosity to him.

[16]     Your previous  convictions are a source of concern.   However,  you have accepted your responsibilities and pleaded guilty in circumstances which, in other

types of sentencing would probably result in a discount of something in the vicinity

of  20  per  cent  to  the  sentence  that  would  be  imposed.    In  addition,  you  have displayed remorse and expressed regret for your actions.

[17]     Taking all of the factors that are relevant into account, including the nature of your offending, your previous convictions, your guilty plea, and your expressions of remorse, I believe that an appropriate sentence is life imprisonment with a minimum period of imprisonment of 11 years.

Conclusion

[18]     Mr Middleton, can you please stand.  You are sentenced to life imprisonment for murder.

[19]     You must serve a minimum period of 11 years’ imprisonment.

D B Collins J

Solicitors:

Crown Solicitor, Napier
Public Defender’s Office, Hawke’s Bay for Prisoner