R v Pay
[2020] NZHC 99
•7 February 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2018-096-003083
[2020] NZHC 99
THE QUEEN v
WARREN LEONARD PAY
Date: 7 February 2020 Counsel:
P K Feltham and J M O’Sullivan for Crown C J Tennet and G R Fulton for Defendant
Sentencing:
7 February 2020
SENTENCING NOTES OF CULL J
[1] Mr Pay, while I read my sentencing notes to you, you may stay seated, I will ask you to stand again at the end when I formally sentence you.
[2] Mr Pay, you appear for sentence today having been found guilty by a jury of murder,1 carrying an imitation firearm,2 and possession of an offensive weapon.3 You also pleaded guilty to one charge of possession of ammunition.4 The maximum penalty for murder is life imprisonment and that is the sentence I intend to impose upon you because, as both the Crown and your counsel agree, there is no basis to do otherwise.
1 Crimes Act 1961, ss 167(1)(a), 167(1)(b) and 172(1).
2 Arms Act 1982, s 46(1); maximum penalty two years’ imprisonment of a $4000 fine.
3 Crimes Act 1961, s 202A(4)(a); maximum penalty three years’ imprisonment.
4 Arms Act 1982, s 45(1)(b); maximum penalty four years’ imprisonment or a $5000 fine.
R v PAY [2020] NZHC 99 [7 February 2020]
[3] What remains to be determined today is the minimum period of imprisonment that you must serve before you are eligible for parole (and this is called the MPI).
[4]In sentencing you, I shall explain:
(a)your offending;
(b)your personal circumstances;
(c)the sentencing regime for murder;
(d)the appropriate minimum non-parole period;
(e)your sentence; and
(f)the application of the three strikes regime to your case.
[5] I start then with your offending. On Friday 14 September 2018 at around 7 pm, you were walking down High Street in Taita. You were wearing a metal chain-linked vest and had a mouth guard, you had a large butcher’s knife and a home-made gun, together with 12-gauge ammunition. At just after 7 pm, you came across the victim, Mr Fonoilaepa, and his friend Mr Nanai. They had been drinking with friends at Mr Fonoilaepa’s home that evening. They left the home at around 6.45 pm and encountered you.
[6] You said words to them and that was taken as a challenge and you pulled out the home-made gun, pointed it at Mr Fonoilaepa and pulled the trigger. It did not work.
[7] At this point, Mr Pay objected strongly, protesting his innocence and saying that he could not remain in court. I stood Mr Pay down and after discussion with Counsel, and required Mr Pay to return to court to be sentenced, with reasons given later. Mr Pay reappeared, and I proceeded to sentence him.
[8] Mr Pay would you please stand. I am now going to sentence you and I will deliver my reasons for doing so once you have stood down.
[9] On the charge of murder, you are sentenced to life imprisonment. You must serve a minimum period of imprisonment of 10 years before you are eligible to apply for parole.
[10] On the remaining charges of carrying an imitation firearm, possession of an offensive weapon and possession of ammunition, you are sentenced to three months’ imprisonment for carrying the imitation firearm, and six months’ each for possession of an offensive weapon and possession of ammunition, all to be served concurrently.
[11] As a first strike warning was not given at the time that your conviction was entered, I am now required to give you that warning.
[12] Given your conviction for murder, you are now subject to the “three strikes” law. This is your first warning which will explain the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences which lists the “serious violence” offences.
[13] First, if you are convicted of any serious violent offence other than murder committed after this warning and if a judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.
[14] Secondly, if you are convicted of murder committed after this warning then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event, the judge must sentence you to a minimum term of imprisonment.
[15] A written notice setting out those consequences will be given to you before you leave today.
[16]Mr Pay please stand down.
[17] I will now proceed to deal with the facts of the offending and give the reasons for the imposition of the sentence.
[18] At the time that I was interrupted, I will simply recall that I was saying that Mr Pay challenged Mr Fonoilaepa and Mr Nanai, pulling out the home-made gun, pointing it at Mr Fonoilaepa and pulled the trigger. It did not work.
[19] Mr Fonoilaepa advanced towards Mr Pay and punched him, causing him to fall to the ground where he continued to punch Mr Pay around the head. Mr Pay then stood up and crossed the road, with Mr Fonoilaepa and Mr Nanai crossing the road, after him, following him. Mr Fonoilaepa punched him again, causing him to fall to the ground again, with further punching to Mr Pay’s head. Mr Nanai kicked Mr Pay around your torso, and stomped on him. His metal vest was removed while he was on the ground.
[20] From the CCTV footage, Mr Pay stood up and yelled at Mr Fonoilaepa and Mr Nanai as they were leaving, when the fight appeared to have stopped briefly and Mr Fonoilaepa crossed back over the road to continue the fight.
[21] It is unclear what precisely occurred in the next sequence, but this is when Mr Pay used the knife and stabbed Mr Fonoilaepa in the chest, through the heart, with the knife, killing him. The jury found him guilty of murder.
[22] I record that those sequence of events took place over a short period of two minutes 10 seconds from the time this sequence began.
[23] Mr Pay then left the scene but returned a short while later to retrieve some personal items. When a police officer asked him to remain, he left the scene and did not return.
[24] A victim impact statement has been provided by Ms Naisali, Mr Fonoilaepa’s partner. It describes in detail, how traumatic his death has been for her and her daughter. Mr Fonoilaepa’s young daughter has lost her father too early.
[25]I turn then to consider Mr Pay’s personal circumstances.
[26] He is 52 years old and was 50 years old at the time of this offending. He identifies as European/Māori and his hapū is Ngāti Kahungunu. He is a current member of the Mongrel Mob.
[27] He had lived a transient lifestyle. He grew up from the age of six in various care facilities, ranging from boys’ homes and state care to orphanages and foster care. As a child, he was frequently moved around the country until the age of 15, when he began employment. He has reported that when he was nine he was involved in a car accident as a passenger which led to a brain injury, and this he finds exacerbates his feelings of fear and anger.
[28] Mr Pay has 25 previous convictions, not including his failures to answer bail. Most of these convictions are drug-related and occurred prior to 2000. His only violence related convictions are over 20 years ago, for assaults in 1999 and 1987, and a male assaults female in 1999. His most recent convictions were in 2016 for two counts of unlawfully carrying or possessing a firearm, for which he received nine months’ imprisonment on each charge, served concurrently. Between 2016 and 1999, he has only been convicted of one count of possession of cocaine and one of possession of cannabis. His offending prior to 2000 is more serious, but is also now a very long time ago. The offence of murder is a significant escalation in severity.
[29] I have received three reports prior to sentencing today: a pre-sentence report from Corrections, a psychiatric report and an addendum completed by Dr Barry-Walsh last year, and a cultural report from Te Huarahi Services.
[30] The pre-sentence report states Mr Pay is at a low risk of reoffending. However, without assistance in addressing Mr Pay’s underlying criminogenic driving factors, his dynamic risk of reoffending may be higher. The report also identifies that he has a modest criminal history, and the offence of murder is a significant escalation in severity.
[31] The report identifies violence, a lifestyle of emotional turbulence and uncertainty, fear, a lack of impulse control, and a self-reported head injury sustained at a young age, as factors related to Mr Pay’s offending.
[32] Prior to trial, Dr Barry-Walsh completed a psychiatric report. He did not detect that Mr Pay had a mental illness, although he identified his past use of methamphetamine and the correlation between drug-use and his state of mind. On interview, Dr Barry-Walsh found no signs of psychosis. To the extent that Mr Pay had persecutory delusions with hallucinations prior to this offending, Dr Barry-Walsh expressed his view that these would seem to be attributable to drug use.
[33] Dr Barry-Walsh concluded that his presentation was consistent with a combination of difficulties including dysfunction in his personality with dissocial traits, which may be understandable in the context of Mr Pay’s upbringing and exposure to adversity. He also noted that Mr Pay has sequela, meaning a condition which is a consequence of a head injury in 1992, but found the difficulties resulting from this to be mild and not impacting on his day-to-day functioning.
[34] In relation to this offending, Dr Barry-Walsh confirms that Mr Pay was not suffering from “a mental disorder” at the time and there was no causal link between the offending and his state of mind.
[35] I turn then to the cultural report. A cultural report was also prepared, as I have said, which provides an in-depth insight into the social and cultural factors influencing Mr Pay and his offending.
[36] The report identifies a number of factors that have impacted on his development and personality. He was taken away from his mother at a young age, brought up by his grandparents until they were too ill to do so. He was placed in the care of a person, whom Mr Pay described as “very mean” and “very restrictive” and who treated him essentially as a slave, requiring him to look after younger siblings. He was at the age of six at the time. Mr Pay was then uplifted by Child, Youth & Family Services, now known as Oranga Tamariki, separating him from his younger brothers and sisters and he was placed into various family and care homes, where he describes being bullied. The report states that the life of constant unpredictability, insecurity and trauma that he led throughout his growing years could well have resulted in his feeling unsafe, insecure and constantly in a state of anxiety. The report
suggests that when in this heightened state of anxiety, it can be hard for him to access the rational centre of his brain, which can result in poor and incorrect decision making.
[37] The report refers to a number of factors and social dynamics that have played a role in alienating, criminalising and institutionalising Māori generally, which have also impacted on Mr Pay. These factors include intergenerational trauma, a disconnect with whakapapa, tikanga and te reo Māori, inconsistent parenting, lack of stability, and alcohol and drug abuse. The report writer describes this as “a legacy of colonisation”, and that he lacks a strong sense of identity.
[38]The report however, records Mr Pay’s strengths, that:
·he wanted to care for his family,
·he had an ability to learn,
·he was resilient and
·that he wanted to be independent and self-supporting.
[39] The report recommended strongly that Mr Pay reclaims his rangatiratanga, to reclaim his identity and control over his life. It makes a number of other recommendations to enable him to get his life back on track, including to learn te reo Māori and tikanga Māori to develop balance in his life; to attend individual counselling to build an understanding of his early developmental trauma suffered and to begin to address it; to join a men’s support group to find solidarity and non-judgmental acceptance by other men, to create a structured support plan for himself, and to get medical advice and support around his head injuries.
[40] These are all positive actions, which I encourage Mr Pay to pursue while he serves his sentence, if such courses and groups are available to him. I urge Corrections to have regard to the positive and rehabilitative effects of such courses and groups and to offer such options to Mr Pay.
[41] Turning to Mr Pay’s sentence, the issue in this case, as Counsel have already recognised, centres around what is an appropriate minimum period of imprisonment under s 103 of the Sentencing Act. I consider, and both counsel agree, that s 104 is not engaged. An imposition of a life sentence without parole under s 103(2A) would be inappropriate here.
[42] Under s 103, the minimum period of imprisonment cannot be less than 10 years. It must be set at the level that I consider is reasonably necessary to satisfy all or any one of the following purposes:5 to hold Mr Pay accountable for the harm done to Mr Fonoilaepa and the community by his offending, to denounce the conduct in which he were involved, to deter Mr Pay and others from committing the same or a similar offence, and to protect the community from him.
[43] The positions taken by the Crown and Counsel for the Defence on the appropriate minimum period of imprisonment are very close. The Crown advocates for a MPI of 11 or 11 and a half years and Mr Pay’s Counsel advocates for 10 years.
[44] Crown Counsel have referred to three cases in their written submissions that they submit are appropriate benchmarks, and which they submit also support setting the minimum term of imprisonment as 11 to 11 and a half years.6 I have read each of thos cases to which the Crown has referred. I consider that the defendants’ exercise of violence against the victims in each of the cases referred to, is in some various way more serious than the present circumstances.
[45] In one case,7 the 18 year old defendant had been engaged in a scuffle with other teenagers. He left the fight, went home and returned with several knives, looking specifically for the victim, whom he eventually found and fatally stabbed multiple times in the back. I consider the aggravating features of the defendant arming himself with a particular victim in mind, the premeditated nature of the offending and that the stabbing itself was not spontaneous, is more serious than Mr Pay’s offending here. In that case, an 11 year MPI was considered appropriate.
5 Section 103(2).
6 Fraser v R [2010] NZCA 313; R v Fa’avae HC Auckland CRI-2006-204-748, 10 July 2008; and
R v Sauaki HC Auckland CRI-2006-09-9497, 31 October 2007.
7 Fraser v R, above n 6.
[46] Similarly, I consider the aggravating factors in another case,8 such as the unprovoked nature of the attack and the fact that the murderous assault was only one of a number of violent attacks by the defendant on that night, make that offending more serious than Mr Pay’s. In that case, an MPI of 11 was also imposed.
[47] All of the cases referred to me set an MPI of between 11 and 12 years, taking into account mitigating and aggravating factors. I consider these cases support the view I have taken here that a starting point of less than 11 years is appropriate, given that the offending in those cases, in my view, was more serious.
[48] The key aggravating features of Mr Pay’s offending are the use of the weapons, and the extent of the resulting loss and the harm that has caused Mr Fonoilaepa’s family. There is no reasonable excuse for carrying a butcher’s knife and a hand-made firearm while walking down the street, for whatever reason, and then using the knife in a fight. The extent of the loss that occurred as a result, is extremely serious. Mr Fonoilaepa lost his life. The severe ongoing impact on his family of that loss is evident from the victim impact statement I have received from Ms Naisali. Nothing that happens in this Court today can bring back her much beloved partner and father to their daughter.
[49] I note Mr Pay’s case bears some similarities to the case of another,9 which involved the use of a hunting knife in a fist fight between family members at a birthday party. Both Mr Pay’s case and that case involved a fight that escalated, in which the offender brought the weapon into the fight deliberately. In both cases, there were elements of provocation. In that case the defendant’s wife had been punched in the head by the victim. A minimum period of imprisonment of 10 years six months was imposed.
[50] I consider similar factors of provocation are relevant to setting the minimum term of imprisonment here. In Mr Pay’s case, the incident was extremely short, two minutes 10 seconds. He was punched hard around the head on numerous occasions and it was accepted that he was kicked and stomped on by Mr Nanai. There was no
8 R v Fa’avae above n 6.
9 R v Rapana [2015] NZHC 3331.
specific plan or premeditation on Mr Pay’s part towards the victim, as the Crown acknowledges, although as the Crown points out, Mr Pay was prepared for a confrontation if that arose that night.
[51] I accept Mr Pay’s Counsel’s submission that he used the knife after he had been punched and kicked by Mr Fonoilaepa and Mr Nanai. He sustained swelling to the head, and significant contusions and bruising to his body. These injuries were not minor.
[52] Despite the repeal of the partial defence of provocation, the Court of Appeal has confirmed that provocation is still a factor to be taken into account at sentencing.10 I want to state clearly, however, that nothing that occurred that night justified Mr Pay’s extreme, excessive response. The jury so held in finding him guilty of murder.
[53] Taking into account all of the matters I have outlined, including those from the cultural report, it is my view that an appropriate starting point for the MPI is 10 years.
[54] The Crown does not consider that Mr Pay’s previous conviction history merits an uplift for previous convictions. I agree. There are no other factors that would justify an uplift. No additional period is therefore required to satisfy the sentencing purposes of accountability, denunciation, deterrence and community protection.11 Having considered the aggravating features of Mr Pay’s offending and reviewed the case law Counsel have referred me to, I have determined that a minimum period of 10 years is appropriately reflective of Mr Pay’s culpability.
[55] Now I have given this sentence to Mr Pay and I have also given the First Strike warning. I will deal with Mr Tennet’s request by Minute and I will grant that. In respect of Ms Feltham’s requests for orders, I make an order for destruction of the firearm, the ammunition and the chain-link vest.
[56] Now, prior to sentencing, Mr Tennet, I had received a letter which Mr Pay had written. There are parts of this letter, that I consider to be important and that the family
10 Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369 at [55].
11 Robertson v R [2016] NZCA 99 at [80].
should have regard to them. In particular, Mr Pay’s indication that he had worked hard to change his lifestyle from gang life to family life. He is devastated about the whole incident and never intended to cause serious harm to this person. He wishes that he could take the place of his victim, and he is sorry for his actions and the pain and suffering that he has caused the victim’s family. He also notes the burden that he has placed on his own whanau and he accepts that this was an incident that got out of control. His remorse is contained in that letter and unless Counsel has any exception to this course, I propose that a copy of this letter be made available to the family.
Cull J
Solicitors:
G J Thurston, Crown Solicitor, Wellington C J Tennet, Justice Chambers, Petone
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