R v P

[2022] NZHC 2197

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-019-006696

[2022] NZHC 2197

THE QUEEN

v

P

Hearing:	31 August 2022
Appearances:	Jacinda Hamilton and Kaleb Whyte for the Crown Kerry Burroughs for the Defendant
Sentencing Notes:	31 August 2022

SENTENCING NOTES OF MOORE J

R v P [2022] NZHC 2197 [31 August 2022]

Introduction

[1]    P,1 at the age of 34, you appear for sentence on a single charge of murder. On 16 June this year, you pleaded guilty to the murder of H.2 The maximum penalty for murder is life imprisonment.

The offending

[2]    It is first necessary for me to set out the facts of your offending. Of course, no one will know them better than you. But because sentencing is a judicial function which must be undertaken in public it is necessary for me to describe them, particularly those which will inform the sentence I shall impose.

[3]    The facts are contained in a summary which you accepted when you pleaded guilty. There is no dispute about them.

[4]    H was your long-term partner. The two of you began your relationship some 15 years ago. You were teenagers at the time. When she was 16, H moved into your home with your parents. Approximately two years into your relationship, you and H had your first child together. You went on to have another four more children together although one died shortly after he was born. At the time you killed H your surviving children were aged 13, 10, 4 and four months.

[5]    Your relationship was a volatile one. You commonly abused H both verbally and physically. You hit her and you gave her “hidings”. You were controlling, often preventing her from leaving the home or requiring her to return on those occasions when she did venture out.

[6]    On 16 December 2020, you were at home with H and your children. Sometime during the day, you badly beat her. You broke her nose and you caused bruising to her scalp and face.

1      P has interim name suppression. The matter is listed for mention on 13 September 2022 at which time it is expected timetabling orders will be made and the application for permanent name suppression will be set down for hearing.

2      Crimes Act 1961, ss 167(a) and 172. Maximum penalty of life imprisonment.

[7]    Later that evening, your eldest son contacted your mother asking her to come over. He feared you would have another “fight”. Your mother video-called H. H signalled that she needed help. Plainly she was terrified you might find out that she was talking with your mother. She was forced to communicate in a non-verbal way so you wouldn’t hear and subject her to more violence.

[8]    At around 9:15 pm, your mother arrived at your home. She attempted to mediate. Because of your behaviour, she arranged for your father to pick up the two older children.

[9]    H went into one of the bedrooms with the two youngest children, while your mother attempted to distract you by keeping you in the kitchen. H took this opportunity to dial 111 and request immediate assistance. She told the operator that if she hung up it was because you were coming.

[10]   At this point you realised that you were being distracted by your mother. You charged past her and entered the bedroom. H could hear you coming. She told the operator “here he comes” and hung up. You grabbed the phone from H and saw that the 111 call had been made. Without saying anything, you left the bedroom and went back to the kitchen. There you picked up a large boning knife. You pushed your mother out of the way. You walked back to the bedroom.

[11]   H was lying on the bed. Your four-month-old baby was asleep between her legs. Your four-year-old child was awake in the room, presumably watching what was going on.

[12]   You leapt on top of H and began a frenzied attack using the boning knife. You repeatedly stabbed her upper body.

[13]   You inflicted a total of 17 stab wounds to H’s neck, chest, abdomen and limbs. These included:

(a)four stab wounds to her neck. These injured her right internal jugular vein, went through her trachea, cut through the fourth cervical vertebra and almost completely divided the cervical spinal cord;

(b)nine stab wounds to her chest and abdomen. These injured multiple internal organs and caused extensive internal bleeding; and

(c)four stab wounds to other parts of her upper body, including her left arm, right shoulder and right middle finger.

[14]   Your mother bravely tried to intervene to stop the attack. As she did you sliced her hand.

[15]   You then left the property. You went to your parents’ house. You told your father that you had “done bad” and that you were “going away for a long time”.

[16]   In the meantime, back at your home, neighbours arrived in a frantic but ultimately futile, attempt to save H’s life. They gave her first aid. Emergency services were called. Despite everyone’s best efforts, H died of her injuries and was pronounced dead at the scene.

Victim impact statements

[17]   I have received five victim impact statements. They are from H’s mother, D; three of her sisters, N, C and N; and her cousin K. All but C read their statements to me in open Court. That was a very courageous effort.

[18]   The contents of the statements are heart-rending. It is very obvious that H’s whānau love her deeply and miss her dreadfully. It is not appropriate for me to quote from them extensively, but I shall summarise some key aspects. Among other endearing characteristics, they describe H as having a “heart of gold” and speak of her “pure” and “loving soul”.

[19]   Put bluntly P, the harm you have caused H’s whānau is incalculable. They are utterly grief-stricken. Each day is a battle in which they must deal with the emotional pain you have caused. It will be with them for the rest of their lives.

[20]   The whānau describe their grief being compounded by the loss of their brother and son, S, only 10 months after H died.

Approach to sentencing

[21]   Everyone who commits murder is liable to life imprisonment unless such a sentence would be manifestly unjust, given the circumstances of the offence and the offender.3 It is common ground that there are no such circumstances in your case. I must and will sentence you to life imprisonment. But that is not the end of this sentencing exercise. I shall now explain why.

[22]   The real issue in your case is the length of the minimum period of imprisonment (“MPI”) that I must impose. Let me explain. If a person is sentenced to life imprisonment for murder, the  Court  must impose an  MPI of not less  than  10 years.4 If, however, the murder involves one or more of the aggravating factors listed in s 104 of the Sentencing Act 2002, then the Court must impose an MPI of at least 17 years unless it would be manifestly unjust to do so.5

[23]This approach involves three steps:6

(a)first to consider the appropriate notional MPI;

(b)secondly, to consider whether any of the aggravating factors listed in  s 104 are engaged; and

(c)thirdly, if one or more of those factors is engaged but the notional MPI is less than 17 years, to then consider whether an MPI of that length would be manifestly unjust.

3      Sentencing Act 2002, s 102.

4      Section 103(2).

5      Section 104.

6      Davis v R [2019] NZCA 40, [2019] 3 NZLR 43 at [25].

[24]And so, I now turn to consider each of those three questions.

What is the appropriate notional minimum period of imprisonment?

[25]I therefore begin with, what is the appropriate notional starting point?

Aggravating factors of the offending

[26]   This involves a consideration of the aggravating and mitigating factors of your offending. There are no mitigating factors. That is agreed. The aggravating factors are five:

(a)The vulnerability of H: Prior to her murder, you subjected your partner to years of abuse and violence. At the time of the attack she was seeking refuge from you in her bedroom. You had badly beaten her, breaking her nose and causing bruising to her face. She was plainly and rightly terrified of you and what you were capable of doing. Relevantly, at the time she was also attempting to care for your two youngest children. Your four-month old was asleep between her legs and your other child was in the room, no doubt watching what was happening to their mother. That H was lying on the bed cradling your baby in this way as you attacked her made her particularly vulnerable and unable to defend herself. I consider this element is present to a high degree.

(b)Breach of trust: Plainly this element is present. What you did was done in the home you shared with H and your children. It was committed in a family context. I regard this element as present to a moderately high degree.

(c)Degree of premeditation: There was some degree of pre-meditation involved in the retrieval and use of the knife as a weapon. While I accept yours was not a pre-conceived or planned attack, you left the bedroom for the purpose of retrieving a weapon from the kitchen. It follows the attack cannot be characterised as spontaneous. I regard this element as present to a low to moderate degree.

(d)The use of a dangerous weapon to inflict lethal injuries: You used the large boning knife forcefully and repeatedly. The 17 wounds inflicted caused H’s death. I consider this element to be present to a high degree.

(e)Targeting the neck: You repeatedly attacked H’s neck with the knife. The anatomy of the neck, containing as it does large arteries, the spinal cord and other vulnerabilities makes it a vulnerable and lethal part of the body to attack. Your actions were deadly. I consider this element present to a high degree although I accept it does cross-reference to the previous factor to some extent.

What is the appropriate starting point?

[27]   Taking these factors into account, Ms Hamilton, for the Crown, submits that the appropriate starting point is  between  17-and-a-half  years’ imprisonment  and 18 years’ imprisonment. Your counsel, Mr Burroughs, on the other hand, submits that it should be less than 17 years’ imprisonment.

[28]   Ms Hamilton refers to R v Beazley.7 There the defendant murdered his estranged wife.8 He ruminated over the breakdown of their brief relationship and plotted to kill her.9 This culminated in Mr Beazley driving from Rotorua to her address in Auckland armed with a hunting knife.10 He knocked on the front door.11 When the deceased answered the door she was holding the couple’s two-and-a-half year old son. As she did, he attacked her with the knife.12 Mr Beazley stabbed her 18 times.13 I adopted a starting point of 18 years and six months’ imprisonment in that case.

[29]   Ms Hamilton submits that your offending is comparable, but slightly less serious because it did not involve a preconceived plot to kill. I agree with that analysis, although your case also did not involve unlawful entry onto property. However, both involved the use of a knife, a similar degree of brutality and the presence of children.

7      R v Beazley [2019] NZHC 672.

8      At [1] and [5].

9      At [10]–[11].

10     At [6] and [13]–[14].

11 At [18].

12 At [19].

13 At [23].

It follows that a starting point lower than 18 years and six months’ imprisonment is called for. The question is how much lower it should be.

[30]   Ms Hamilton also refers to R v Mete.14 Mr Mete began arguing with his partner at their address.15 The argument turned physical and he repeatedly struck her in the face until she was dead.16 Such was the level of violence that her face was left unrecognisable.17 Cooke J considered a starting point of 16 years’ imprisonment appropriate.18

[31]   I agree with Ms Hamilton that your offending is more serious than Mete. It was less spontaneous and involved the use of a lethal weapon, which you intentionally retrieved for that purpose. Your children were also present during the attack. A starting point greater than 16 years’ imprisonment is warranted.

[32]   Ms Hamilton also refers to R v Peeni.19 The defendant lived with his former partner and their six children.20 There was a history of violence in the relationship.21 One day the children heard their father say he was going to kill their mother.22 She alerted the Police.23 In response, Mr Peeni punched her to the head at least five times,24 before striking her with a six or seven kilogram paving brick at least 13 times.25 Three of the children witnessed the incident.26 The remaining three heard it.27 Lang J adopted a starting point of 17 years’ imprisonment.28

[33]   I consider your offending broadly comparable to this case. Both involved relationships with a history of violence; an assault in the victim’s home precipitated

14     R v Mete [2020] NZHC 1573.

15     At [1]–[2].

16 At [2].

17 At [13]. The assault was so violent in this regard that Cooke J considered it involved a high degree of brutality for the purpose of s 104(e).

18 At [34].

19     R v Peeni [2020] NZHC 1352.

20 At [2].

21 At [5].

22 At [8].

23 At [9].

24 At [9].

25 At [10].

26 At [12].

27 At [12].

28 At [23].

by the victim contacting Police; a brutal attack in which weapons were used; and the presence of children to witness it.

[34]   The distinguishing factor rendering your offending slightly more serious is the degree of premeditation involved. Lang J found that Mr Peeni’s offending was not planned or premeditated.29 The weapon used appears to have been one of opportunity. You, however, specifically retrieved a large knife to kill H. A slightly higher starting point is justified.

[35]   I have reviewed the other cases cited by Ms Hamilton.30 Mr Burroughs also referred to some of those cases. The others he referred to, which I will footnote for the record, involved dissimilar offending which was less serious than yours.31

[36]   Taking the caselaw into account, I consider the appropriate notional starting point to be a minimum period of 17 years and six months’ imprisonment.

Adjustments to the starting point for personal circumstances

[37]   I must now consider adjusting that starting point for your personal circumstances.

[38]   Mr Burroughs submitted that you should receive credit for both your guilty plea and your personal background circumstances. I shall deal with each in turn.

29 At [22].

30 Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369 is of limited similarity as it involved the stabbing of a man suspected to be having an affair with the offender’s wife. R v Singh [2019] NZHC 148 bears similarities to Beazley but involved a higher starting point. Momoisea v R [2019] NZCA 528 is somewhat similar to the present case but involved the murder of a former partner in their home. Vea v R [2020] NZCA 68 involved the killing of a man who the offender suspected was having an inappropriate relationship with his wife with a machete. R v Li [2020] NZHC 3419 also involved the offender fatally stabbing his former partner but a higher starting point than that in Beazley. R v Edwards [2021] NZHC 1612 involved a beating that Lang J considered to be less serious than Mete, with a commensurately lower starting point.

31 R v Marsters [2021] NZHC 1268 involved the offender fatally stabbing his girlfriend three times while she was in his car. Walker J considered a starting point of 14 years’ imprisonment appropriate. R v Singh [2015] NZHC 2369 the offender murdered his wife by stabbing her three times at her international school (in addition to attempting to murder her friend). Woolford J adopted a starting point of 12 years and six months’ imprisonment. R v Callaghan [2012] NZHC 596 involved the offender striking and murdering his former partner in an entirely unpremeditated and totally out of character attack. R v Ngeru HC Wellington CRI-2008-085-5996, 11 December 2009 involved the offender beating his partner to death while in such a drunken state that he could not recall what occurred. There was limited evidence of what occurred.

[39]   First, your guilty plea. A guilty plea in cases such as this can attract a discount of between one and two years.32 The plea entered late operates against a discount at the upper end of this range.33 You pleaded guilty some 18 months after H’s killing. This calls for a discount at the lower end of the available range. I consider one year appropriate. This is not a case where you acknowledged your guilt from the beginning and pleaded guilty at the earliest practical opportunity. The 18 months between H’s death and you pleading guilty included a number of adjournments of trial dates pending an expert report to examine whether the defence of insanity was available to you, three changes of legal representation, refusals to participate or even engage in interviews addressing your fitness to plead and a plea of guilty entered just 10 days before the scheduled trial date. It is that combination which has led me to conclude that you are entitled to a discount only at the lower end.

[40]   Next are your personal circumstances. On this point Mr Burroughs has provided the Court with a cultural  report authored by Ms Shelley Turner,  dated     22 August 2022,  and  a  report  of  consultant  psychiatrist  Dr  Peter  Dean  dated  28 May 2022.

[41]   Ms Turner, who is well known to and respected by this Court, details your background circumstances. Much of this is very personal. I shall not repeat it in great detail.

[42]   The first aspect of your background which is said to have a nexus with your offending is your long-term substance abuse and mental health issues. In your early teenage years, you associated with anti-social peers. Regular alcohol and drug use was the norm. At the time of your offending you were in a significant relapse. This  is said to be compounded by your mental health issues. You told Ms Turner that at the time of your offending you believed that there were evil spirits present in H which you needed to get rid of.

32     Vea v R [2020] NZCA 68 at [21].

33     See for example Akash v R [2017] NZCA 122 at [26].

[43]   The second aspect of your background is childhood sexual abuse. You described two incidents to Ms Turner. Both are self-reported and uncorroborated by independent evidence.

[44]   Lastly, the report mentions that violence against women was normalised in your social circles. When you were in your late teenage years you associated with gang members. They often meted out violence to their partners in front of you and others. You did note, however, that you never experienced or witnessed violence at home during your own childhood. Further, that your mother came to “sort [you] out” when you acted violently towards H.

[45]   Mr Burroughs says that your background circumstances explain why you have not flourished in the community. While that may be true, it is difficult to draw any material nexus between those circumstances and your offending.

[46]   Dr Dean’s report indicates that I ought to treat information self-reported by you with some caution. He reviewed your mental health records. Various mental health professionals have expressed the view that your behaviour may be the result of malingering, or in other words feigning or pretending symptoms of mental illness.  Dr Dean’s view was that it would be problematic to attribute all of your symptoms to malingering but commented that you were “undoubtedly deceitful and unco-operative” in a manner “unrelated to a mental health condition”.

[47]   The comprehensive pre-sentence report introduces some insights which are worthy of mention. There are certain themes present which are reflected in other material I have considered, including your own letter of remorse. You blame methamphetamine withdrawal for what you did. You are recorded as saying you had become irrational to the point where you claim you attacked H with the intention of removing a demon’s spirit from her but, as the report writer recorded, you demonstrated little insight into how or why you attacked H in the way you did. In fact, the report writer said that your repeated reference to drug use being the cause of your violent behaviour demonstrated an intent on your part to justify your actions and shift blame. It is notable that the report writer states that at no time did you express

any concern for your children, the loss of their mother and the horrific long-term consequences this will have on them and their futures.

[48]   It follows I cannot uncritically accept that your offending was in part caused by psychotic symptoms. Nor that you were sexually abused as a child and that the abuse precipitated a decline in your mental health and consequent drug use. Put simply I cannot give these matters as much weight as might otherwise be the case.

[49]   This is compounded by the fact that the Court’s discretion to give credit for personal factors such as these is restricted in murder cases.34 General disadvantage in your upbringing relating to mental health issues and drug use carries less weight.

[50]   In any event, much of your background has a limited nexus with your offending. On any measure, this was a particularly brutal and callous murder. It does not seem that you were exposed to family violence as a child. Later exposure to your peers engaging in family violence is of a different order of seriousness. It is also notable that what you report took place in your late teens, at a time when you were old enough to know better. You continued meting out violence to H despite your mother’s efforts to stop you behaving in that way.

[51]   It follows that the aspects of your background described above do not materially mitigate your moral culpability for what you did.

Conclusion

[52]   It is therefore my view that the appropriate notional MPI is one of 16 years and six months’ imprisonment.

34     Hohua v R [2019] NZCA 533 at [44].

Do any of the aggravating factors in s 104 of the Sentencing Act apply?

[53]Ms Hamilton submits that two of the s 104 factors are engaged:

(a)that the murder was committed with a high level of brutality, cruelty, depravity, or callousness;35 and

(b)that the deceased was particularly vulnerable by reason of her age, health, or because of any other factor.36

Was the murder committed with a high level of brutality, cruelty, depravity or callousness?

[54]   These characteristics must be present to a high level.37 I have already touched on aspects of this when discussing the notional MPI.

[55]   Sadly, there are many cases where the murder of a wife or partner by knife stabbing has met this threshold.38 Yours is no exception. You stabbed  H 17 times. The stabs to her neck almost completely divided her spinal cord. Those to her chest and abdomen injured various internal organs. Plainly your attack was frenzied and vicious.

[56]   This factor is exacerbated by the fact two of your children and your mother were present. This did not deter you. It is difficult to see how anyone could subject their own children and mother to seeing and hearing what you did in that room.

[57]   The combination of these factors renders your offending brutal, cruel, depraved and callous to the high standard necessary.

Conclusion

[58]   It follows I consider that the s 104(1)(e) aggravating factor is engaged. It is not strictly necessary for me to determine whether H was also vulnerable to the

35     Section 104(1)(e).

36     Section 104(1)(g).

37     R v Gottermeyer [2014] NZCA 205 at [79(d)].

38     At [80]–[81] the Court of Appeal sets out several of these cases.

requisite standard that engages s 104(1)(g). I have, however, previously explained how and why she was particularly vulnerable.

Would it be manifestly unjust to impose a minimum period of imprisonment of at least 17 years?

[59]   The final issue is whether it would be manifestly unjust to impose an MPI of at least 17 years.

[60]   The standard for a finding of manifest injustice is set at a high level.39 As a matter of overall impression the case must fall outside the scope of the legislative policy that murders with specified features are sufficiently serious to justify at least that term.40 That conclusion can be reached only if the circumstances of the offence and the offender are such that the case does not fall within the band of culpability of a qualifying murder.41 This requires reference to clearly demonstrable factors that withstand objective scrutiny.42

[61]   A guilty plea will not always be entitled to significant weight in this assessment.43 If a minimum term of 17 years would include a real element of discount for a guilty plea, it would normally be appropriate to impose that term.44

[62]   A minimum term of 17 years’ imprisonment in your case will still provide a real element of discount for your guilty plea. The discount may be diminished by six months, but that is the consequence of offending which is so serious as to fall within the legislative policy of s 104.

[63]   It follows I am satisfied it would not be manifestly unjust if a 17-year MPI was imposed. That is the minimum term you will serve.

39 At [76].

40     R v Williams [2005] 2 NZLR 506 (CA) at [67].

41 At [67].

42 At [67].

43 At [72].

44 At [73]. The Court of Appeal contrasted this by pointing out “that it would be manifestly unjust if two persons with equal culpability sentenced for the same offending, received an identical minimum term of imprisonment despite one only of them having pleaded guilty.”

P whānau letter of remorse

[64]   Before I formally impose sentence on you, I want to say a few words about your family circumstances. Your P whānau has written me a letter of remorse. So have you. Plainly they adored H for being the kind and caring person she was. They speak of what a proud and loving mother she was. It cannot be overlooked that it was to your mother that H turned when she was so scared of what you might do to her. They acknowledge the great loss H’s whānau have suffered; how your four children have not only been robbed of a mother but also a father. They describe how, despite what you did, your two oldest boys have the grace to want you to get better and get the help you need. Your parents and your sister told Ms Turner about how they believe that drugs lie at the centre of your behaviour and I have explained the limits to how much I can take that into account. What all this shows is that despite the enormity of what you did and the lifetime consequences you have wrought on your four children, H’s grieving whānau and your own grieving whānau, your own whānau still have it in their hearts to support you. You should count yourself lucky indeed because all too often in very serious cases like this, defendants have absolutely no support systems to call on. You will need that support in the years which lie ahead.

End sentence

[65]P, please stand.

[66]On the charge of murder you are sentenced to life imprisonment.

[67]    Additionally, I order an MPI of 17 years which means that you must remain in prison until at least that time and whether you are ever released or when will depend on the Parole Board at that time.

[68]Stand down.

Moore J

Solicitors:

Crown Solicitor, Hamilton Mr Burroughs, Hamilton