R v Namana
[2021] NZHC 3160
•5 November 2021
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2018-012-000260
[2021] NZHC 3160
THE QUEEN v
WIREMU PAUL NAMANA
Hearing: 5 November 2021 Appearances:
R P Bates and C E R Power for the Crown
J M Ablett-Kerr QC and J A Westgate for the Defendant
Date:
5 November 2021
SENTENCING REMARKS OF NATION J
[1] Mr Namana, I must now sentence you for the murder of David Clark and Anastasia Neve on 21 January 2018, and for arson in setting fire to their home at 66B Wesley Street with reckless disregard for the safety of that property.
[2] I begin by acknowledging the friends and family of the victims who are here in Court, the family of Dave and Stacey as you referred to them. I appreciate the way you have been able to describe the ways you valued them as individuals despite the difficulties they faced in their lives. I appreciate the way in which you have been able to describe what you miss in not having them in your lives, as a son and daughter, as a sister, a brother or as a parent. You have described the shock that you experienced at hearing of their deaths and then the greater shock of finding out they had been murdered. In a number of the victim impact reports, you describe your grief and
R v NAMANA [2021] NZHC 3160 [5 November 2021]
sadness at not being able to view them after they had died because of the injuries they had suffered. I also acknowledge the particular ordeal you have faced through the time it has taken to get to this point where Mr Namana has admitted his guilt and is to be sentenced.
[3] My remarks now are about what sentence the law requires me to impose on Mr Namana. So, inevitably, a lot of my remarks have to be about him. Your victim impact statements have been important in reminding me that he has to be sentenced for the needless murder of two people whose lives ended in horrible circumstances, and the intense shock, grief and lingering sorrow that has been caused to those close to both of them.
[4] Mr Namana, you and all those who are in Court need to know that, before today, I have been provided with information about your background and the matters I must consider when arriving at the appropriate sentence for you, including the thorough submissions from your counsel Mrs Ablett-Kerr and from the Crown.
[5] I also observed and listened to you in the 14 hours of Police interviews which you participated in early in the Police investigation, and I heard evidence from psychiatrists with information as to your use of illicit drugs around that time.
[6]I begin by giving a brief summary of the offending.
[7] It is accepted that you suffered an intravenous drug addiction which worsened up until January 2018. You abused several different types of drugs but in particular morphine which you injected intravenously. In January 2018, you were finding it difficult to obtain drugs because of the debts you had with your usual suppliers. Your victims were also intravenous drug users and low-level drug dealers. From time to time, they supplied you with drugs if they had them.
[8] On 21 January 2018, you were trying to obtain drugs. At about 7.00 pm that day, you and Mr Clark went to an address where you unsuccessfully attempted to obtain drugs. At about 9.15 pm, you took Mr Clark to a different address where Mr Clark obtained two 60 mg morphine tablets. You were not allowed at that address so
waited nearby. Mr Clark left the address but did not tell you. At 9.45 pm and 10.16 pm you telephoned Ms Neve’s cell phone, a cell phone Mr Clark also used. Then, at
10.19 pm, you telephoned an associate. You were breathing heavily and sounded annoyed. You asked the associate where the victims were and said they were not answering knocks on their door. You told the associate you felt like kicking the door in.
[9] At some point after that, you entered their home, flew into a rage and attacked them using a knife, cricket bat and mini sledgehammer as weapons. You killed both of them.
[10] You left their address shortly after, taking the murder weapons and clothing with you. You disposed of the weapons. You left your boots at a neighbouring address and washed your clothing in the washing machine where you lived.
[11] Police later located a pair of motorcycle pants that belonged to you in the backyard of the flat. Sitting on top of the pants was a piece of Ms Neve’s flesh. Clothing and two cell phones belonging to you were also found in the backyard. Your boots were found at the neighbouring address that you had taken them to.
[12] At a point after Ms Neve and Mr Clark had been killed, you were in the company of a woman you knew. You told her you had killed the victims and were going to set fire to their flat to destroy evidence.
[13] In the early hours of Monday, 22 January 2018, you returned to the victims’ flat. You poured petrol from a five litre container around the bedroom, set the petrol alight and left the address. The fire quickly took hold of the flat. At about 5.14 am, the fire service received multiple calls regarding the fire. The occupant of the adjoining front flat was asleep. He awoke to smoke entering his flat and had to be assisted from his home by a neighbour. As a result of the arson, the victims’ home and the adjoining neighbour’s flat were damaged and had to be demolished.
[14] You were spoken to by the Police on four different days. You gave different accounts of your actions on the night, initially denying being at the victims’ home at
any time after 8.30 pm on the Sunday night. In a third interview, you said you had gone to the victims’ address at about 11.30 pm and accepted that your motorbike had been heard leaving the address at about 1.30 am. In a fourth interview, you said you went into the victims’ house and saw Ms Neve’s head smashed in. You said an unknown person had attacked the victims in a frenzied attack. You told the detective you were worried you would go to jail for murder and you were worried about forensic evidence that might implicate you. You said you later went back to the victims’ address on your bike and “torched the place”.
[15] In an interview of 28 January 2018, you described, in some detail, the killing and how it occurred with a mini sledgehammer and knife, how Ms Neve was hit and stabbed and how a cricket bat had blood on it. You said you had seen someone else doing this.
[16] You were arrested and charged with arson on 29 January 2018. You were charged with the murders on 20 February 2018. You pleaded guilty to all charges on 11 June 2021.
[17] In sentencing you, I must apply the law which Parliament has set out in the Sentencing Act 2002. I must also have regard to sentences imposed in other cases and statements from the Court of Appeal as to how I must approach sentencing.
[18] Through your counsel, you accept that s 102(1) of the Sentencing Act requires that you must be sentenced to imprisonment for life. This means you will only ever be released on parole from prison if the Parole Board considers it is safe for you to be living within the community. If you are ever released from prison, you could be recalled to serve your life prison sentence if, at any time, it is brought to the attention of the Parole Board that you are again assessed as being a risk to the community.
[19] What I must decide is the length of time you must spend in prison before the Parole Board can consider whether you should be admitted to parole, the minimum period of imprisonment.
[20] Through your counsel, as you heard confirmed today, you accept firstly that, pursuant to s 103(2), that period must be at least 10 years. The minimum period of imprisonment must be the minimum that I consider is necessary to:
(a) hold you accountable for the harm you did to the victims and the community with your offending;
(b) denounce your conduct;
(c) deter you or others from committing the same or similar offending; and
(d) protect the community from you.
[21] The obligation I have as to those matters is important when I have to sentence you for the killing of two people and, on all the information before me, I am told there is a high risk of your being involved in further serious violent offending.
[22] Section 104 of the Sentencing Act says that I must impose a minimum period of imprisonment of at least 17 years in certain specified circumstances unless I am satisfied it would be manifestly unjust to do so.
[23] In R v Williams, the Court of Appeal said, when considering minimum periods under s 104 of the Sentencing Act, the first step is to consider the culpability of the instant case against the standard range of murders, deciding what additional minimum period above 10 years was needed to meet the objectives of accountability, denunciation and deterrence, and the legislative policy that certain features of an offence warrant a 17 year minimum.1
[24] Your counsel accepts that this section applies because these murders were committed with a high level of brutality2 and because you have been convicted of two counts of murder. The Crown says the murders were also committed with a high level of callousness.
1 R v Williams [2005] 2 NZLR 506 (CA).
2 Sentencing Act 2002, s 104(1)(e).
[25] As courts and counsel have often acknowledged, every murder involves brutality and callousness, but I am well satisfied they were a feature of these murders to a high degree so as to come within s 104.
[26] The actual injuries you inflicted on both Mr Clark and Ms Neve are detailed in the summary of facts. Through the summary of facts, you accept that, through your use of multiple weapons, you inflicted sustained blunt force injuries to their heads causing skull fractures. Both suffered multiple stab wounds to their torso and to the head.
[27] There were 14 stab wounds to Ms Neve’s body, including wounds that penetrated her chest cavity through to the lung, stab wounds to the lower neck and chest cavity which severed arteries, and stab wounds to the eyes. Her jaw was fractured in several places.
[28] Mr Clark suffered fractures of the skull and facial bones which would have been sufficient on their own to cause his death. Those injuries were consistent with several violent blows with a baton-like instrument. He suffered stab wounds to the face and a wound to the neck, cutting his carotid artery and causing torrential bleeding, which was potentially fatal of its own right. He suffered a fracture of the bony components of the voicebox (larynx) and other fractures consistent with impact from a baton-like instrument to the left side of his neck.
[29] Your counsel suggests it would not be appropriate to classify the offending as involving a high level of callousness. It suggested, for there to be callousness, there would have to have been an intention to inflict cruelty, rather than a loss of control fuelled either by intoxication or withdrawal from intoxication.
[30] There is ample information in the psychological and psychiatric reports available to the Court to indicate that you are prone to times of intense anger and violence. Through the summary of facts, you accept you flew into a rage and attacked the victims. The summary suggests you could well have become intensely angry because you did not have access to the drugs you wanted. However, there is no
evidence to suggest that, in some way, your drug addiction meant you did not know what you were doing.
[31] I consider there was also callousness in that both these people were friends of yours, people who would have understood your drug addiction and who would have been sympathetic to that. In your anger, you completely lost sight of that. There was also callousness in the way you returned to their home and poured petrol around their bodies, setting fire to them and their home. Because of that, the victims’ bodies were extensively burnt, one of the reasons why family members could not view their bodies as part of the grieving process.
[32] Because one or more of the factors referred to in s 104 applies, the minimum period has to be 17 years unless that would result in a manifest injustice. Your counsel suggests that, given the circumstances of the offending, putting s 104 to one side, the starting point would be 16 to 17 years minimum term of imprisonment. The Crown suggests a starting point of 20 years’ imprisonment would be appropriate, given the approach taken in other cases and particularly the range of 20 to 21 years adopted or referred to in other cases involving double murders.
[33] Having decided that s 104 applies, I must assess the culpability of your offending with regard to any relevant aggravating or mitigating factors referred to in s 9 and the purposes and principles of sentencing in ss 7 and 8.
[34]The aggravating features of these murders include:
(a) the use of multiple weapons;
(b) the particular vulnerability of both victims through the way you were significantly bigger and stronger than both of them. Ms Neve weighed only 39 kg and was about 1.57 metres tall. Mr Clark was approximately
1.7 metres tall and weighed only 62.5 kg. They were also vulnerable in that they would not have expected to be attacked so violently in their own home. As the Crown noted, there was no evidence that they had suffered any defensive wounds so were obviously not able to resist the attack which they were subject to;
(c) there was particular harm and cruelty in the stabbing and cutting of the victims around the head and face and to their eyes; and
(d) these murders involved the abuse of a position of trust in that the two victims were associates and, as you have said, friends of yours.
[35] I am mindful that the Crown accepts that these murders were the result of a sudden rage and there was not the premeditation evident in certain other cases I was referred to. I have nevertheless had regard to the sentencing approach adopted in Marong v R where a woman was killed and the offender subsequently burnt her body.3 I have also had regard to the sentencing of Mr Gibson-Park in R v Patuwai where the victim had been killed in a violent assault by two men without weapons and Mr Gibson-Park returned to the victim’s home and set fire to it in an attempt to destroy evidence.4
[36]I have also considered the sentences imposed in R v Uluakiola, Wallace v R
and R v Smith.5
[37] Had your offending involved just one murder, I am satisfied that, in putting s 104 to the side, the culpability of your offending would have justified a starting point minimum period of imprisonment of 18 years.
[38] But, the most significant aggravating feature of your offending is that you murdered two people.
[39] I have read the judgments involved in the sentencing for double murders in the cases of R v Doyle, R v Ogle, R v Reddy, R v Ying, R v Reihana and Malik v R.6 In R v Reddy, the High Court Judge referred to these last three cases, noting that the appropriate starting point minimum terms of imprisonment in those cases ranged from 20 to 22 years.
3 Marong v R [2020] NZCA 179.
4 R v Patuwai [2021] NZHC 675.
5 R v Uluakiola CA123/06; Wallace v R [2010] NZCA 46; R v Smith [2016] NZHC 2581.
6 R v Doyle HC Rotorua CRI-2005-070-6451, 13 October 2006; R v Ogle HC Wellington, CRI- 2009-091-2763, 16 October 2009; R v Reddy [2016] NZHC 1367; R v Ying (2004) 20 CRNZ 1078 (HC); R v Reihana HC Rotorua CRI-2005-070-7328, 19 June 2007; Malik v R [2015] NZCA 597.
[40] There does need to be an uplift for the arson. I took into account the way you set fire to your victims’ bodies in deciding that these murders had been committed with a high level of callousness. But, you also set fire to the building in a way that led to its complete destruction and significantly put the person in the adjoining property in a situation of extreme danger. There was premeditation in your deciding to return to the property and commit that offence.
[41] I consider that an appropriate starting point minimum period of imprisonment for the double murder and the arson is 20 years. This accords with the submission made by the Crown. But, I consider that, if the starting point had been slightly higher than that, perhaps 21 years, it would not be possible to argue that that was completely outside an appropriate range.
[42] I am then required to consider aggravating or mitigating factors relating to you personally.
[43] The Crown accepts no uplift is needed on account of your previous criminal offending. You do have an extensive list of previous criminal convictions, including four convictions for male assaults female, two for breaching protection orders and one for aggravated robbery with a firearm from May 1993. However, the Crown accepts that this offending is now largely historical. Your last criminal conviction was for two offences of male assaults female (family violence) committed in 2009 for which you were sentenced to community work and supervision.
[44] There are a number of matters relating to you personally which I have been urged to take into account to reduce the starting point minimum period of imprisonment I have arrived at.
[45]The first of these is your guilty plea.
[46]In Malik v R, the Court of Appeal said:7
7 Malik v R, above n 6, at [37], referring to Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 [Hessell (SC)]; and R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 [Hessell (CA)].
Hessell (CA) and Williams recognise that the legislative policy in s 104 limits the credit that may be given for mitigating factors, including guilty pleas, when calculating the minimum period and applying the manifest injustice test. The discount lies in the discretion of sentencing judges, who have been using the Williams methodology. If an appellate court were to insist that the full Hessell (SC) discount be allowed for minimum terms, respect for the legislative policy in s 104 would require that starting points for minimum terms for murder be revisited and perhaps increased. In the meantime, it is not appropriate to treat the starting point used when calculating a minimum period under s 104 as the direct analytical equivalent of the starting point used when setting a determinate sentence.
[47] Courts have frequently discounted the starting point minimum term for guilty pleas in murder cases by one to two years. The extent of a discount for guilty pleas is at the discretion of the sentencing Judge. Mr Namana, your guilty pleas were entered some three years after the murder charges were laid. Mrs Ablett-Kerr points out that the delay has enabled you to free yourself from the long-term effects of drug intoxication, clarify your thoughts and to begin the process of addressing the pathway to your mental health wellbeing. It will be of benefit to you and the community that you have been able to do that. However, the credit for guilty pleas is primarily to recognise the way in which the victims of offending are spared the ordeal of continuing Court proceedings, the uncertainty and stresses of a trial, the considerable saving in terms of the use of Court and Police resources, and the demands on witnesses, all of which are inevitably associated with a trial.
[48] Your guilty pleas were entered only after the prosecution case had been fully prepared for trial and after a fully argued two to three weeks hearing over the admissibility of your interviews and certain proposed propensity and hearsay evidence.
[49] Nevertheless, I recognise that, although in your extensive interviews with the Police you admitted to the arson, you had denied any involvement in the actual killing of Ms Neve and Mr Clark. With your guilty pleas, you took responsibility for what you had done and accepted the sentencing consequence of life imprisonment that would inevitably flow from that. You did spare the State, witnesses and victims the ordeal and costs of what would have been a long trial.
[50] I am told you have considerable respect for a former partner, the mother of a son. With the information I have as to her in the s 38 report,8 I have regard to views she expressed to the psychologist, Dr Du Plooy. She said that, while she had been angry at your offending, she was proud that you had acknowledged that offending and was proud of you for taking responsibility for your actions in this way. She felt this was not something you had done during your marriage to her.
[51] I consider your guilty pleas could appropriately be recognised by a discount of 18 months on the minimum period of imprisonment.
[52] I am next asked to reduce the starting point minimum period of imprisonment on account of the way it is said your offending stems from you being a victim of serious abuse as a child and young person, matters referred to in a s 27 report provided to the Court, your mental health issues and your drug addiction.
[53] It was submitted for you that, but for s 104, the appropriate starting point would fall in the range of 16 to 17 years and that a discount of two years for accumulated credits would be appropriate, so that an adjusted minimum period of imprisonment in the range of 14 to 15 years would be just. Your counsel thus sought a reduction in the starting point minimum period of imprisonment of two years. Referring to the judgment in Webber v R, the Crown suggested the discount could be just six months.9
[54] As well as having the s 27 report, the Court obtained a psychologist report from Dr Du Plooy, which I have and will refer to as the s 38 report. Your counsel obtained a psychiatric report from Dr Barry-Walsh.
[55] I acknowledge the efforts and the value that your counsel has provided through putting before the Court documents and information, independent of you, as to the neglect and abuse I have been told of. I am not being asked to rely on just what you have said about such matters.
8 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 38.
9 Webber v R [2021] NZCA 133.
[56] I have also benefitted from information provided to me from Ms Sonja Cooper, the lawyer you have engaged with regard to the abuse you suffered while in State care as a young child and while at another children’s home when you were about 10 or 11. […] That lawyer I have just referred to, Ms Cooper, was able to explain that the information you provided to her is consistent with other information she has reviewed as to how children or young people were abused, either through other young people in care at those particular places she referred to or indeed from certain staff.
[57] I am not going to detail how you suffered through all of that. But I accept you did. You also suffered from neglect and abuse in your home situations when you were younger. Your mother was an alcoholic and also suffered from other mental health illnesses. Your father was in the navy and often at sea, until he left the navy to take responsibility for your care.
[58] I note that you told Dr Du Plooy that you do not resent your father for the abuse you and your sister suffered as children and said that, as of now, he remains a great source of support and inspiration to you.
[59] I have read a report of 22 January 1980 from a psychologist at Wakari Hospital where you were referred when you were 9. This was after you and others had started a fire at a primary school. She said, from the point of view of stability, both you and your younger sister had had “a disastrous life”. The report referred to your father having returned from sea some five years earlier when you were four and being appalled, as he put it, at the conditions you and your sister were living in.
[60] A report prepared in 1985, when you were 14, said you liked living at the particular residence you were then at, and noted you were “mostly a soft sensitive boy but can get into ‘black’ moods when he is against authority and it is extremely difficult to motivate him at these times”. At that point, your absconding and offending behaviour had however reached a point where it was considered it was no longer viable to have you in the community. It was following this that you went into State care. The report noted that you had been identified as someone clearly with academic ability but your early childhood with your mother had been quite disturbing for you.
[61] Dr Barry-Walsh says you are “a man who has been profoundly damaged by an aversive childhood”.
[62] The information in the reports suggests your memories of past abuse can be the trigger for you to be consumed by extreme anger and to be violent in particular situations that confront you.
[63] The s 38 report from Dr Du Plooy indicated that you had been to Porirua Hospital during the 1990s and had three brief psychiatric admissions at Wakari Hospital in 2015 and 2016, it seems primarily relating to depression, including suicidal ideation. Hospital notes revealed numerous past psychiatric diagnoses, including bipolar disorder type 2, emotionally unstable dependent personality traits, anti-social personality traits and a history of polysubstance abuse.
[64]Dr Du Plooy said:
Mr Namana appears to display signs and symptoms and meets the criteria of a mental disorder diagnosis of post-traumatic stress disorder. Furthermore, he also appears to meet the criteria for alcohol and polysubstance use disorder currently in remission in a controlled environment [he was referring to prison]. Mr. Namana has also displayed signs and symptoms of bipolar disorder, anxiety and depression in the past, however, his history of substance misuse and emotional dysregulation combined with his current strong levels of support, improved mood and mental state means that a definitive diagnosis of these conditions cannot be made at present. As such, there was no evidence of a major mood disorder or psychotic disorder presented during this assessment.
[65] The s 27 report tells me how your health and wellbeing has been damaged in Māori terms but the information suggests this has resulted from damage in the various ways that have been referred to in greater detail in other reports and other information put before me, rather than cultural deprivation of itself.
[66] A report from Presbyterian Support Services of 11 November 1985 identified that you then had “little or no awareness of Māori taonga”. It said:
Wiremu has little or no awareness of Māori taonga. His mother is from the Ngati Kahungunu (Wairarapa Regional), therefore, Wiremu is at least half Māori. This untapped area has great potential in giving Wiremu a greater sense of self-worth and self-confidence.
[67] The s 27 report nevertheless referred to you identifying as being Māori, being aware of your whakapapa and your connection to your mother’s iwi and hapu, although your mother’s generation and generations before that had become disconnected from the traditional ways of life through moves to cities and towns for employment. The report said you had sought out this connection, returning to your mother’s land when you were 30, and recognised this through obtaining your tā moko when you were 30. The report also referred to your passion for pūtōrino (a Māori musical instrument). Dr Barry-Walsh said you have developed a sense of identity and identification with tikanga Māori and this would seem to represent a strength for you.
[68] The s 27 report referred to you, at the age of 30, being employed as a youth social worker for the organisation of REAP based in Winton, Southland, and your working with children and youth that were in the care of Child, Youth and Family. The report writer said this was the most settled time in your life.
[69] So, the report tells me that, as an adult, you recognised the way in which you could benefit from building on your Māori connections and the ways that could be positive for you and the community. This is in contrast to those the Court often sees who have joined gangs and put obligations to those gangs ahead of seeking any real connection with hapu or iwi.
[70] There is much information in the reports before me which refers to you being intelligent and articulate. Dr Barry-Walsh said, throughout his interview with you, you were calm, often introspective and articulate. He said you displayed insight into your circumstances. He said:
Mr Namana does seem to have strengths. He presented as insightful. He identified a commitment to address the issues that drove the offending and that had blighted his life. He expressed remorse for his actions.
[71] Your counsel has also referred to the insight you have. I do not consider this insight is something that has just emerged since this offending. With all that I have been told about your information and with what I have learnt about your background, I am satisfied that you would have had that insight a number of years ago.
[72] Dr Du Plooy said, during his interview with you, you displayed significant personal insight into your mental health and past offending behaviour.
[73] As to drug addiction, Dr Du Plooy referred to your history of alcohol and polysubstance abuse, the neglect and abuse you suffered in the past and a background of early exposure to violence. He said, as a result, you developed difficulties with managing your emotions, particularly anger, along with opposition to authority from an early age and that you have used violence instrumentally throughout your life, culminating in these murders. He said that, despite the fact that “the mood fluctuations and associated anger [you] displayed in the past can be described as being consistent with an anti-social personality structure, [your] history of addiction could also account for this”.
[74] Your drug abuse and addictions have obviously been damaging in terms of your relationships and your work history. Through your need for illicit drugs, you associated with people who were not able to provide you with the pro-social support that might have helped you to deal with the various ways you had been damaged through your upbringing.
[75]I have considered what was said recently by the Court of Appeal in Clarke v
R. Mrs Ablett-Kerr said that her attention had been drawn to this judgment only a couple of hours before this hearing. I note that it has been available to the Court and counsel since the time of that judgment. I do have regard to what was said in it. I do not consider that it completely displaces what has been said in Williams or in Zhang as to how addiction might be relevant.10 But, nevertheless, I do consider it and give weight to it in considering to what extent I should be influenced by your drug addictions in my ultimate determination.
10 R v Williams, above n 1; Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648
[76]In Clarke, the Court of Appeal said:11
[39] We do not consider the observation in Williams, that the personal circumstances of an offender will only displace the 17-year minimum term in exceptional cases, has been modified by Zhang. Zhang was a guideline judgment setting sentencing bands with regard to a list of factors, but noting the ability to move outside those bands when the individual circumstances require it. It has little relevance to a charge of murder where both the sentence and the minimum MPI is prescribed by the Sentencing Act except where manifest injustice arises.
[77] Dr Barry-Walsh said you had not previously engaged adequately in professional therapeutic activities to address either substance abuse or your problems with anger or indeed the effects of the abuse you experienced. You have indicated you are now willing to do this. That nevertheless was a course that was open to you in years past and certainly before this offending.
[78] The information before me as to your attributes, your intelligence and your insights indicates that you had the ability and understanding to do that many years ago but did not do so.
[79] Despite your use of illicit drugs, you had the ability to manage your life in ways that would have avoided you coming before the courts for any sort of criminal offending after 2009.
[80] I know from information in the s 38 report and also from the evidence I heard from your former partner that, for sustained periods, you have been in a relationship with women who did provide you with pro-social support, who obviously cared for you and wanted to support you with both a drug and offence-free life. You made choices in the context of those relationships which meant you lost that support. Although you suffered from abuse and neglect in your early life, you have the example of your father who you say was not responsible for that abuse and who is someone you respect.
[81] The reports indicate to me that the most likely aspect of your personality that led to this offending was the way you have prone to times of extreme anger and,
11 Clarke v R [2021] NZCA 151, citing.Zhang v R, above n 10.
associated with that, at the very least, the potential for serious violence. I saw evidence as to that when having to consider whether certain propensity evidence should be admitted at your trial. And, I note that, in that regard, I had the opportunity to hear evidence from […] and to assess her reliability as a witness as to the matters that she was giving evidence as to then.
[82] You told Dr Du Plooy that, in the past, you would have easily resorted to violence when feeling angry.
[83] Dr Barry-Walsh said in his report that you have major difficulties managing your anger and that you have a life-long problem with anger.
[84] There is nothing in the reports to suggest that incidents of anger with violence were always associated with either the use of drugs or withdrawal from intoxication.
[85] Dr Barry-Walsh said you told him you had limited memory of your actions around the time of your offending. I accept you may now want to block out what you did but I do not accept that you would have no memory of that in any way or that, in any way, you would not have known what you were doing at the time. Soon after killing Mr Clark and Ms Neve, you were aware enough of what you had done to go to considerable lengths to try and destroy evidence through the arson. You also took from the scene the weapon or weapons that had been used in the attack. During the various interviews with the Police, you gave various detailed accounts of your movements both before and after the victims were killed. I also bear in mind the determinations I made as to your credibility, both as to your honesty and reliability in the evidence you gave before me over the admissibility of certain evidence.
[86] I cannot conclude on the evidence before me that your brutal killing of Ms Neve and Mr Clark was because of your drug addiction. You have not explained why you attacked them as you did. I cannot infer this was because they had refused to supply you with drugs. Had that been the reason, your murders of them would have been even more culpable than I have already assessed them to be. There is no information to suggest that, through your use of drugs, you were delusional and did not know what you were doing. Your drug addiction might explain why you wanted
to obtain drugs. It does not explain why you attacked and killed these two people in a frenzied rage.
[87] I thus do not have the information that would enable me to accept the submission that your violence could be attributed to “a loss of control fuelled either by intoxication or withdrawal from intoxication” as submitted by your counsel.
[88] Your circumstances as at February 2018 might explain how you came to commit these murders, but I am satisfied that those circumstances were also the consequence of choices you have made at various stages of your life, choices which you had the maturity, insight, intelligence and the mana to have made differently.
[89] I am nevertheless prepared to give you a discount of some two years with reference to the way you have been affected by abuse and neglect in the early years of your life, such mental health issues that you do have and the difficulties that you have faced because of drug addiction. With the credit for your guilty pleas, on a starting point of 20 years minimum period of imprisonment, that would lead to an end sentence of 16 and a half years, only a little less than the minimum required under s 104 of the Sentencing Act.
[90] In R v Williams, the Court of Appeal said the second step is to consider whether a 17 year minimum would be manifestly unjust.
[91] On the assessment I have just made, there is no basis for me to find that requiring you to serve the minimum period of 17 years would cause a manifest injustice. However, even if I had considered that you were entitled to greater discounts on account of the matters referred to me in detail by your counsel, I am satisfied that they would not have been to an extent that would have required me to find that, in the circumstances of this case, there would have been a manifest injustice in requiring you to serve a minimum period of imprisonment of 17 years, as mandated by s 104 of the Sentencing Act.
[92]In Malik v R, Miller J for the Court of Appeal said:12
12 Malik v R, above n 6, referring to R v Williams, above n 1, at [67] and [72]-[73].
[32] Having decided what minimum period was justified in all the circumstances, the judge would go on to consider the second step: whether a 17 year minimum would be manifestly unjust. A lesser minimum period would be warranted where the judge decides as a matter of overall impression that the case falls outside the legislative policy that certain murders are sufficiently serious to warrant at least that minimum period. The full range of sentencing criteria in ss 7 to 9 of the Sentencing Act may inform that overall impression, but because the legislative policy in s 104 must be respected, powerful mitigating factors may be needed to displace the 17 year presumption. A guilty plea is not always entitled to significant weight, and the discount required for the plea may be less than it would have been but for s 104, which requires something more than the fact that a particular discount would have been given had the presumption not applied.
[93] I am not satisfied that, with recognition for both your guilty plea and the matters I have referred to, in the circumstances of this case, there would be a manifest injustice in requiring you to serve a minimum period of imprisonment of 17 years, mandated by s 104 of the Sentencing Act.
[94] As the Court of Appeal said in Malik, “a lesser minimum period would be warranted where the judge decides as a matter of overall impression that the case falls outside the legislative policy that certain murders are sufficiently serious to warrant at least that minimum period”.13
[95] Mr Namana, at the end of the day, I cannot lose sight of the fact that you have shown a history of using violence and aggression, and of being prone to extreme anger. The s 38 report informs me that your risk of reoffending, without treatment, appears to be high and your risk of violent recidivism as being very high. The way you committed these murders indicates that, if you do reoffend, the harm you could cause could well be very serious. You killed two people in an extremely brutal attack. Callously, you set fire to their bodies. In doing so, you set fire to their home in a way that put an immediate neighbour in extreme danger. You did that to try and cover up what you had done.
[96] You will be subject to a life sentence but you are now 50. You have already served more than three and a half years of your sentence. If you continue to remain drug-free and if you offer and accept the therapy you need to deal with the consequences of your early abuse, your risk of reoffending should be significantly
13 Malik v R, above n 6, at [32], citing R v Williams, above n 1, at [67].
reduced. There is much information in the reports to indicate that you have the intelligence and the personality to be able to contribute positively to society if and when you are released on parole. If you do that, if you can do that, perhaps you will one day have the opportunity to try to atone, in some way, for what you did to Anastasia Neve and Dave Clark, and all the harm that has caused.
[97]Mr Namana, please stand.
[98] Following your conviction on each charge of murder, you are sentenced to life imprisonment with a minimum period of imprisonment of 17 years. Those minimum periods of imprisonment are concurrent. On conviction for arson, you are sentenced to imprisonment for two years, that sentence to be served concurrently with the sentences for murder.
[99]Please stand down.
[100] […]
[101] […]
[102] […]
[103] All reports that have been made available to me, including the s 27 report and the report from Dr Barry Walsh, and obviously the s 38 report, are to be forwarded to the Department of Corrections. I make that direction with the expectation that the Department of Corrections will be ensuring that Mr Namana has the opportunity to benefit from the sort of programmes that are indicated as being potential of great value to him.
Solicitors:
RPB Law, Dunedin
JM Ablett Kerr QC, Barrister, Dunedin JA Westgate, Barrister, Dunedin.
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