R v N HC Wellington CRI-2008-085-5996

[2009] NZHC 2292

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2008-085-5996

THE QUEEN

v

N

Hearing:         11 December 2009

Appearances: I R Murray and K Salmond for the Crown

V Nisbet and B Crowley for the accused

Sentence:       11 December 2009

SENTENCING NOTES OF CLIFFORD J

Introduction

[1]      Mr N  , you appear for sentence having been found guilty, after a jury trial before me in the High Court here in Wellington, of the murder – in 2008 – of your partner at that time, Mihi Tuhoro.

[2]      I  first  acknowledge  the  presence  in  Court  today  of  the  members  of  the immediate whanau and the friends of the victim Mihi Tuhoro.  I also acknowledge any members of Mr N  ’s family who may be present.

[3]      I want to explain to  you Mr N  ,  and all present in Court today, the decisions that I must make today to decide on sentence.

R V N HC WN CRI-2008-085-5996  11 December 2009

[4]      When a person is convicted of murder, our law requires the Court to impose a life sentence, unless such a sentence would be manifestly unjust.  Such a sentence is clearly not manifestly unjust here.   Mr N  , you are therefore sentenced to life imprisonment.

[5]      When a Court imposes a life sentence for murder, the Court must also decide on the minimum period of imprisonment the convicted person must serve.  This is because, even though a person receives a sentence of life, they may still during that period apply for parole.   Eligibility for parole does not mean that the convicted person will necessarily be released.   The Parole Board is required to consider the safety of the community and whether the convicted person would pose an undue risk to the community upon release.  Even when released on parole, a person sentenced to life imprisonment remains subject to that sentence for the rest of their life, and may be recalled to prison if, having been paroled, they are perceived as a risk to the safety of the community or they breach their release conditions, or, for example, they commit an offence punishable by imprisonment.  So a life sentence is a life sentence.

[6]      The minimum period of imprisonment is the time that must elapse before a person convicted of murder is eligible for parole.  That period must be at least ten years.  The Court may impose a minimum non-parole period that is longer than ten years if that is necessary to hold a person accountable for the harm they have done to their victim and the community, to denounce their conduct, to deter them and others from committing similar offending in the future and to protect the community.

[7]      What I must determine this morning, therefore, is the minimum non-parole period which is required to achieve those purposes.  The Crown has submitted that that minimum non-parole period should be in the vicinity of 12 years.   On your behalf, Mr N  , Mr Crowley says that the standard 10 year minimum should apply.

Facts

[8]      As part of my consideration of your minimum term, I need to record the essential facts of this murder.   I know, and we all know, from hearing the victim

impact statements this morning, and I know from my observations during the trial, how hard it can be for those affected to have to listen to some of these details yet again.  It is, however, necessary for me to do this.

[9]      At  the  time  of  these  sad  events,  you  were  living  with  your  victim,  the deceased Mihi Tuhoro, in flats at Farmers Crescent in Pomare, Lower Hutt.  You had been in a relationship with her for some 9 months.

[10]     Both you and Mihi Tuhoro were beneficiaries.  Most if not all of the other residents in those flats were beneficiaries, as were many others in the local area.

[11]     As became clear from the many witnesses who gave evidence at your trial, your and Mihi’s lifestyle, and the lifestyle of your neighbours and friends, was centred on almost daily drinking sessions that took place in various of your flats in the block.  The pattern would appear to have been that the person who received their benefit on a particular day paid for and hosted the drinking session on that day.  In addition to regular and heavy consumption of alcohol, Mr N   you also sniffed glue from time to time, had occasionally drunk methylated spirits, and cannabis would also appear to have featured.

[12]     The evidence at your trial also showed, as you acknowledged when speaking to the Probation Officer, that you and Mihi had a relationship that was affected much for the worse by your drinking.  The general pattern of the evidence was that when you were sober, you appeared to enjoy a reasonably good relationship.  When one or both of you were intoxicated, that ceased to be the case.  You would argue, and there would be violence between you.  In particular, witnesses spoke of you assaulting Ms Tuhoro on previous occasions.  There appears to have been a pattern of you asking or suggesting that Mihi move out of your flat, and Mihi resisting that suggestion.

[13]     On the day preceding Mihi’s death, you and Mihi had been drinking with friends in an upstairs flat.  That day you had dragged Mihi across the floor of that flat and threatened and tried to throw her from the balcony.  You only desisted from this action when reminded that you were not in your flat on the ground floor.   You appear to have left your friends at that point, whilst Mihi stayed behind.   You subsequently  returned  and  more  alcohol  was  consumed.     The  evidence  was,

however, that tensions between you and Mihi remained.   Witnesses spoke of her telling you she loved you, whilst you ignored her.

[14]     Later that evening you left and returned to your downstairs flat.   You said you were angry.  Evidence from neighbours was that they had told Mihi to stay with them until you calmed down.

[15]     Sometime later that evening Mihi returned to your flat.  It would appear to have  been  then  that  the  violence  between  you  occurred.    You,  apparently very intoxicated at the time, have no recollection of those events.  At your trial, however, and again this morning through Mr Crowley, you have acknowledged that you must have been responsible for the injuries she suffered, as you remember waking up with Mihi in your bed the next morning and subsequently realising that she was dead.

[16]     Forensic  investigation  showed  that  Mihi  had  been  severely  beaten  and, although she had survived that beating for some small time, died as a result of her injuries thereafter.  That investigation, and in particular patterns of blood stains and the analysis of the blood found on the walls and floor of the flat where you were living, indicated that the beating occurred in the kitchen of the flat, and Mihi was then dragged over the floor in the direction of the cupboard where her body was ultimately found.

[17]     The evidence of the pathologist was that the blows inflicted on Ms Tuhoro were extremely violent, and caused similar damage to her as would be caused in a high speed motor accident.  It would appear that you kicked or stomped Ms Tuhoro in the chest and ribs and in the head with sufficient force to cause a fracture of her skull from one side to the other.   Her ribs were broken and her sternum was also fractured.

[18]     The next day you returned to your neighbours’ flat, telling them that Mihi was not well.  You subsequently moved out of the flat, and would appear to have lived on the streets in Wellington for approximately one month.

[19]     Mihi’s death was not discovered for some time.  In fact, her death was only discovered when you were arrested by the Police in Wellington on 19 July.  After

your arrest, and after you had spoken to your lawyer, you told the Police that they would find a body in your flat.  They did, and that body turned out to be the body of Mihi Tuhoro.

[20]     The issue at your trial for the jury was whether they were satisfied that in inflicting the injuries you acknowledge you had caused to Mihi, you did so with murderous intent.  By their verdict, the jury found that you did.

Pre-sentence report

[21]     Your pre-sentence report shows that you moved to Wellington from Taranaki approximately five years ago.   In Wellington you at first led a transient lifestyle during which you picked up the habit of methylated spirits consumption and glue sniffing.   You then moved into the flats at Farmers Crescent with the help of a church group in Petone.  You would appear to have little or no connection with your own family.   Your life has, in reality, been blighted by your drug and alcohol dependency issues.

[22]     You have a reasonably significant criminal history, dating back to 1981. That history includes a number of assault and aggravated assault charges.  You have served numerous, largely short-term, sentences of imprisonment, most recently in the first part of 2008.   You also have shoplifting, offensive and disorderly behaviour, theft and trespass convictions.

[23]     You have expressed remorse for your offending, and acceptance of the fact that you will be imprisoned for a lengthy period.

Victim impact statements

[24]     The victim impact statements you have heard this morning, and that we have heard, each in their own way express how Mihi’s death, and in particular the brutal way in which she died and the fact that her body was not discovered for some time, has affected those close to her.  Mihi Tuhoro was a loved member of her whanau. Your actions have hurt that whanau, and taken away an important part of it.

Discussion

[25]     I must now consider the question of the appropriate minimum period of imprisonment that you, Mr N  .  This decision inevitably involves an analysis of aspects of your offending, and, in particular, the degree of brutality associated with your killing of Mihi Tuhoro and a comparison of that with other offending.   I am very aware that to do so can be disturbing and upsetting, particularly from the perspective of Mihi’s whanau.  There is no such thing as a murder which is not, in a very real sense, brutal, violent and callous. Having said that, and in terms of relevant legal authority, I do need to focus again on various aspects of your behaviour.

[26]     The beating that Mihi Tuhoro suffered was severe and forceful enough to fracture her skull, as I have said, from one side to the other.  In my view, the level of brutality involved in Mihi’s death does call for some additional denunciation and deterrence beyond that reflected by the 10 year minimum term.

[27]     As submitted by the Crown, I think that conclusion is reinforced by the domestic nature of this offending.  Mihi was your partner, and she was killed in the place where she lived with you.   I accept there was evidence of violence between you, and the possibility that Mihi may have, at least verbally, abused you when you both had been drinking.  It is clear, however, that you were responsible for physical violence to her in a domestic situation.   This aspect of Mihi’s death also needs additional denunciation and deterrence.

[28]     I also accept the Crown’s submission as to the callousness of your behaviour after the murder.   You hid Mihi’s body in your flat and effectively, through the stories you told, covered up her death.  You did also try to take money from her bank account.   Although you subsequently confessed to a friend, and arranged for that friend to help you clean up the blood in the flat, you told no one else.  This showed disregard for both Ms Tuhoro and her family.  At the same time, I acknowledge that those actions, at least initially, and your inability to take responsibility for your actions, do reflect unfortunate aspects of your own upbringing and the dysfunctional life that you have led.

[29]     I note finally that you do have a lengthy history of previous convictions, including at least eight in the last 10 years for assaults of various kinds.

[30]     I have considered the submissions made on your behalf by Mr Crowley, both this morning and in writing.  I acknowledge that these events are, in many ways, the product of the awful effect alcohol and drugs have had on your life.  At the same time, I do not think that that acknowledgement takes away from my conclusion that a minimum period of imprisonment in excess of 10 years is called for.

[31]     I comment finally, to those of Mihi’s family here in Court today, that no sentence for murder can cure the sadness and suffering that a murder causes, or bring any great sense of peace to those who grieve for the victim.  The sentence for murder is rather the response of our justice system which here, as in all areas, tries to do the best  it  can  to  cope  with  very complex  human  tragedies  and  difficult  events  in people’s lives.

[32]     Mr N  , please stand.

[33]     By my assessment, and having regard to the matters I have discussed, I conclude that a minimum period of 12 years is called for.   Mr N  , you are therefore sentenced to life imprisonment and I order that you serve a minimum period of imprisonment of 12 years.

[34]     Mr N  , you may stand down.

“Clifford J”

Solicitors:   The Crown Solicitor, Wellington for the Crown ([email protected]) V Nisbet, Wellington for the accused ([email protected])