R v Olley

[2012] NZHC 40

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-004-16484 [2012] NZHC 40

THE QUEEN

v

MARTIN DENNIS OLLEY

Hearing:         3 February 2012

Counsel:         K Glubb for the Crown

I Tucker for the prisoner

Judgment:      3 February 2012

SENTENCE OF WOODHOUSE J

Charge:  Murder

Plea:  Not guilty

Verdict:  Guilty of manslaughter

Sentence:  Starting point:  9 years imprisonment

End sentence:  8 years 6 months imprisonment
Minimum period of imprisonment:  4 years 3 months

Solicitors / Counsel:

Mr K Glubb, Meredith Connell, Office of the Crown Solicitor, Auckland

Mr I Tucker, Tucker & Co., Solicitors, Takapuna

Mr I Wotherspoon, Barrister, Auckland

R V OLLEY HC AK CRI-2010-004-16484 3 February 2012

[1]      Mr Olley, you may remain seated until I come to impose the formal sentence.

[2]      As  you  will  be  well  aware  there  needs  to  be  a  lengthy  sentence  of imprisonment  for  manslaughter  of  this  nature.    And  my  task  is  to  explain  the sentence I am going to impose, not just to you but to the family of John Chambers – all of the family – and to the wider community because you offended against all of these people as well, of course, fatally against John Chambers.

[3]     You appear for sentence for manslaughter.   You were found guilty of manslaughter  by a  jury  following  trial  on  a  charge  of  murder.    The  maximum sentence for manslaughter is life imprisonment.   However – and as I have just discussed with counsel – sentences that are imposed for manslaughter cover a wide range.  This is because every case must be determined on its particular facts, and the facts from case to case vary greatly.

The facts

[4]      The facts are critical.   The charge of murder arose from the death of John Chambers at a boarding house in Mt Eden at about 3:30 am on 11 September 2010. Mr Chambers died from a single knife wound which penetrated his heart.   You admitted that you were holding the knife when the fatal injury was inflicted.  You gave evidence in your defence and claimed that it was an accident.

[5]      You and Mr Chambers were in the kitchen of the boarding house at about

3:15 am, having been out together. A dispute arose.  Other occupants of the boarding house, in bedrooms nearby, heard noise from the kitchen.   Your evidence, which could not be challenged because there was no-one else in the kitchen at the time other than Mr Chambers, was that the argument arose over demands by him for methamphetamine which he wanted to consume.  Both of you had consumed alcohol and  cannabis  that  evening.    There  is  evidence  that  Mr  Chambers  had  earlier consumed methamphetamine.  And I accept there is no evidence that you had consumed methamphetamine.

[6]      The noise in the kitchen led to another resident, Peter Tupuola, coming out of his room into the kitchen.   He found Mr Chambers seated in a chair with you standing about one to two metres away holding a bottle.  You told Mr Tupuola that John Chambers had just pulled a knife on you.  And there is no dispute about that. Mr Tupuola said he saw the knife being held by Mr Chambers in his right hand beside his leg.  Mr Tupuola took it from him without any difficulty.  He put it on a bench top more or less across the room from where Mr Chambers was seated, with you standing between the knife and Mr Chambers.  Mr Chambers was still seated.  It is also relevant that he was, in build, a fairly slight young man. And I saw a video of him in respect of an earlier incident.  And his vital statistics, of course, have been described in evidence.  You are physically bigger and, I infer, considerably stronger than John Chambers was.

[7]      After putting the knife on the bench Mr Tupuola went to leave the kitchen believing the altercation was over.  Mr Tupuola said that he had gone about three to four metres towards the door out of the kitchen when he looked back.  He said he saw you standing over Mr Chambers armed with the same knife.  He said he saw you raise your right arm to shoulder height over Mr Chambers, who was still seated.  He said he saw you stab downwards in one quick movement with the knife.

[8]      Mr  Tupuola  said  that  from  the  point  that  he  took  the  knife  from  John Chambers to the point when he saw you stabbing Mr Chambers while he was seated, he  had  not  heard  you  or  Mr  Chambers  say  anything.    He  had  not  seen  John Chambers move but also he had not seen you get the knife from the bench which you obviously had done, and as you acknowledged.

[9]      Mr Tupuola said that immediately after John Chambers had been stabbed that John Chambers got up, went about 10 metres down a corridor, collapsed and died where he lay.

[10]     Aaron Woodhams was another Crown witness.   He had a room along the corridor.  He opened his door as Mr Chambers was coming down the corridor before collapsing.  Mr Woodhams said that you followed Mr Chambers out of the kitchen, that your manner was, and I quote, “quite aggressive”.  Mr Woodhams said that you

were yelling at John Chambers and that you said, and again I quote Mr Woodhams, “fuck you, do you want some more”.   In your evidence, when asked whether you said this, you said, and I quote your evidence:

… no I said, “Head for the fucking door.”   Meaning get the fuck out the

door.

[11]     The point from the evidence that is relevant for sentence, and on which I am satisfied beyond reasonable doubt, including on the basis of your own evidence, is that when you came out of the kitchen door following Mr Chambers you were in a very aggressive mood.  And this conclusion is consistent with the jury‟s verdict, and defences that were rejected, which I will discuss in a moment.

[12]     The knife was a kitchen knife, with a blade approximately 21 centimetres long.   Death occurred from a single knife wound which entered John Chambers‟ body on the left side of his chest and penetrated approximately 11 to 12 centimetres into his heart.   The angle of the wound, in relation to an upright body, was approximately horizontal from the point of entry to the penetration of the heart.

[13]     You admitted that you were holding the knife when the fatal injury occurred. You claimed in your evidence that it was an accident.  The essence of your evidence was that, after Mr Tupuola had put the knife on the kitchen bench, with you then between the knife and Mr Chambers, you put the bottle down, picked up a chair defensively and then put that down, and then picked up the knife as a defensive measure. You said that Mr Chambers then propelled himself out of the chair towards you, that you raised both of your forearms backwards in a defensive move holding the knife in your right hand, and, in effect, Mr Chambers impaled himself on the knife.

[14]     The Crown case was that you were guilty of murder either because you intended to kill, or because you intended to cause bodily harm – bodily injury – that you knew was likely to cause death and you were reckless whether or not death occurred.  Because the jury found you not guilty of murder the jury was unsure, at the least, that you had murderous intent.  But the manslaughter verdict means that the jury rejected your defence that it was an accident, and self-defence which I had

put to the jury.  And this was a matter for the jury – not for me – but I am satisfied that they were plainly correct.   The verdict also means that the jury positively concluded beyond reasonable doubt that death resulted from intentional assault by you with a knife.  In coming to these important conclusions, the jury plainly rejected your essential contentions.  I am satisfied that the jury accepted the evidence of Mr Tupuola, which I also considered to be reliable in all relevant respects.  From this, and other evidence – and in particular the evidence of the pathologist – I am satisfied that the fatal blow was inflicted while John Chambers was seated, with the trajectory of the wound indicating that he was probably leaning over defensively when you stabbed him.   On the essential points this is consistent with the evidence of Mr Tupuola, the only other live witness to what occurred in the kitchen at the critical time.

[15]     There was the following submission from the Crown, and I quote:

On that basis the Court is invited to find that the victim was seated, offering no threat at the time, and that he was simply stabbed in the chest by the prisoner in anger and in a totally excessive response to their earlier disagreement, but equally for no readily apparent reason.

Mr Tucker‟s submissions on your behalf responded directly to relevant paragraphs in the Crown‟s submissions.  There is no challenge to this proposition.  I am satisfied that the Crown‟s proposition is correct.

Documents and other material considered

[16]     I have received a number of documents and other material for the purposes of sentencing, as follows – and I will simply summarise it in large measure:

Written  submissions  from  your  counsel  and  the  Crown,  and  further  oral

submissions I heard briefly this morning.

Victim impact statements from John Chambers‟ mother, his sister Lisa, and his  brother John.   Of equal importance there is a victim impact statement from Mary Anne and Mark Owens and their daughter Alice.  And this was read, of course, by Mr and Mrs Owens this morning.   Mr and Mrs Owens

became John Chamber‟s foster parents when he was just five years old.  He was 23 when he died.  As may be expected, the impact on all of them – the entire family – from the death of John Chambers has been profound.  And it

will be permanent.

There is your letter to me together with supporting documents and certificates which I have, of course, read.  And there was the draft of the letter to the family – foster family and the natural family – which you read with my

permission to them today.

There is all of the relevant evidence from the trial which I take into account

in the manner consistent with the jury‟s verdict.

Anumber of cases have been referred to me for the purposes of determining the length of an appropriate sentence of imprisonment.  I do not intend to go into the details of these cases and I simply note the names: Tai;[1]  Ames;[2]

[1] R v Tai [2010] NZCA 598; CA410/10, 8 December 2010.

[2] R v Ames HC Rotorua, CRI-2008-263-19, 30 October 2009, Venning J.

Edwardson;[3] Herewini;[4] Baryluk[5] and Edmonds.[6]   Tai, a decision of the Court

[3] R v Edwardson HC Rotorua, CRI-2006-069-1101, 27 April 2007, Stevens J.

[4] R v Herewini HC Hamilton, CRI-2007-019-10174, 14 May 2009, Andrews J.

[5] R v Baryluk HC Nelson, T10/02, 25 August 2003, France J.

[6] R v Edmonds HC Christchurch, CRI-2009-009-13108, 15 December 2010, Panckhurst J.

of Appeal on a manslaughter sentence, refers to another Court of Appeal decision called Taueki.[7]   Taueki provides guidelines for sentences for serious violent offending and Tai discusses the way in which those guidelines may be applicable in sentencing for manslaughter in some cases.  And this is such a

[7] R v Taueki [2005] 3 NZLR 371; (2005) 21 CRNZ 769 (CA); CA384/04, CA417/04, CA434/04, 30 June 2005.

case. And I have had regard to Taueki as I will indicate.

Finally, there is evidence relating to  earlier offences  of violence by you

which I heard and read although it did not go to the jury.

[17]     As I say, I do not intend to summarise all of the content of the various documents and other material received and considered.  I have taken into account the

relevant matters, together with the relevant provisions of the Sentencing Act.

Personal circumstances

[18]     At the date of this offence, Mr Olley, you were aged 30.  At that time you were subject to parole with special conditions following release from prison on 29

July 2010 for two serious offences of violence, one committed in May 2008 and the other in October 2009.   At the time of this offence you were also subject to a sentence of intensive supervision of one year for assaulting a female, with that offence committed two months before the manslaughter.

[19]     You have a total of 55 previous convictions following a first conviction in

1997.  There are 11 convictions for offences of violence with two further convictions for possession of an offensive weapon.  There have been no previous convictions for violent offences involving the use of a weapon.

[20]     There are some other matters in your favour and I will refer to these in a moment.

Sentence

[21]     I need to fix a starting point.   A starting point is a sentence calculated by reference to the gravity of your offending – the offence itself – before taking account of any personal factors justifying an increase or decrease in the starting point.

[22]     The significant aggravating features of the offence are the following:

(a)       You used a knife.  It was a lethal weapon when used in the way that you did use it.

(b)      Your act was one of extreme violence.  There are two elements to this.

One is the assault with a lethal weapon in the circumstances that I have described.  The other is the fact that you killed the person who you deliberately assaulted with a knife.

(c)      For the Crown – this is the third point – for the Crown, Mr Glubb submitted that, although there was no planning on your part, your action was premeditated in the sense that you made a deliberate decision   to   grab   the   knife   and   immediately   attack   when   the opportunity arose.   Mr Tucker submitted that your decision making was, in essence, contemporaneous with your attack and any premeditation on your part was a matter of seconds before the attack. I consider that the use of the word „premeditation‟ is unhelpful.  The most relevant facts in this regard, in relation to an aggravating factor, is that you picked up the knife and used it in circumstances where I am satisfied, beyond reasonable doubt, that there was no  material threat to you of any relevance. You did this in a violent rage.

(d)A  further  aggravating  factor  is  that  Mr  Chambers,  having  been disarmed and because he was seated, and bearing in mind his slight build compared with yours, and bearing in mind that Mr Tupuola was still in the room – and you said that John Chambers was scared of him

–  having  regard  to  all  of  these  matters,  John  Chambers  was  a vulnerable victim.

[23]     Against  this,  Mr  Tucker  has  submitted  that  there  is  some  mitigation  in relation to the offence itself because of what might be described as provocative conduct by Mr Chambers.  I accept that, before Mr Tupuola came into the kitchen, there had been a degree of provocative conduct by Mr Chambers in that he had pulled a knife on you, as you said, spontaneously to Mr Tupuola.  I do not attach any significant weight to this because of what occurred from the point that Mr Tupuola came into the room and disarmed Mr Chambers, and disarmed him without any difficulty.

[24]     The Crown submits that the starting point should be between eight to ten years imprisonment.  Mr Tucker submits that the starting point should be between six to eight years imprisonment.  So at the top end of one and the bottom of the other there is no difference.

[25]     Using  the  Taueki  guidelines,  and  allowing  for  the  fact  that  your  violent offence caused death, I am satisfied that the Crown‟s submission is justified.  Eight to ten years puts your offending at the top of band 2 of Taueki, or the bottom of band

3.   Arguably, Mr Olley, it could be more.   But I have also referred to other manslaughter decisions – Taueki was not one of manslaughter – and on the basis of those I am satisfied that the starting point should be nine years imprisonment.

[26]     This is to be increased  by one year because of your criminal history of violence and, in particular, offending while on parole for two violent offences and while under a sentence of supervision for the further assault two months before this offence.

[27]     Against this I am satisfied that you do have genuine remorse, even though this  is  mixed  up  with  regret  for  what  you  have  done  to  yourself  and  the circumstances you are now in.  I accept that you recognise a pressing need to deal with your intense anger problem.  And as best as I can judge this, this is at the heart of it.  This will require a lot more effort on your part than what you have put in so far.  I acknowledge steps you are taking in prison to make something better of your life than you  have done so far,  and that is to say in respects other than anger management which is crucial.

[28]     I also allow for the fact that after you stabbed Mr Chambers and before leaving the boarding house you phoned for an ambulance. And that says a great deal in relation to what lay behind this offending, and comes back to this anger problem and also comes back to the question of remorse.

[29]     These  positive  factors  outweigh  the  negative  personal  factors  in  my judgment. The result is an end sentence of eight years six months imprisonment.

Minimum period of imprisonment

[30]     There is a question of a minimum period of imprisonment.   The Crown submits that there should be a minimum period of imprisonment of two-thirds of the sentence.  Mr Tucker does not advance any argument against a minimum period of

imprisonment.   He submits that, if there is to be one, it should be half the full sentence imposed.

[31]     There is need for a minimum period to better hold you accountable for the grave harm that you have done, to seek to deter you for the future, and for protection of the community until you have got this very serious problem completely under control.  But this does not require two-thirds of the sentence, which is the maximum. There are other ways of addressing these matters through the Parole Authority.   And I  consider  that  two-thirds  of  the  sentence  would  be  counter-productive.    The minimum period of imprisonment will be half.  It will then be for the Parole Board to decide whether you should be released and obviously an important consideration, as I say, will be the extent of progress you have made in prison to deal with your personal problems which led to this tragedy.

Formal sentence

[32]     You should now stand.

[33]     Mr Olley, you are sentenced to imprisonment for eight years six months with a minimum period of imprisonment under s 86 of the Sentencing Act of four years and three months imprisonment.

[34]     Stand down.

Woodhouse J