R v Peeni

[2020] NZHC 1352

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2019-019-7257

[2020] NZHC 1352

THE QUEEN

v

RUEBEN PAUL PEENI

Hearing:

16 June 2020

Appearances:

R L Mann for Crown

A M Beveridge for Defendant

Judgment:

16 June 2020

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Hamilton

R v PEENI [2020] NZHC 1352 [16 June 2020]

[1]    Mr Peeni, you appear for sentence having pleaded guilty to a charge of murdering your former partner, Crystal Selwyn. The maximum sentence for that offence is life imprisonment together with a minimum non-parole period.

Factual background

[2]    The basis on which you are to be sentenced is an agreed summary of facts. This records that you and your former partner were in a relationship for approximately 18 years and have six children together. At the time of the incident giving rise to the charge all the children were less than 12 years of age and resided at your former partner’s address with her.

[3]    By this stage your relationship was at an end and she had entered into a new relationship. Notwithstanding the separation you had remained living at her address.

[4]    The incident giving rise to the charge needs to be considered against a background involving numerous attendances by the police at the property since April 2008 to investigate instances of family harm involving you and your former partner. These calls to the police were made either by her or by friends and neighbours who heard what was going on in the house and were concerned for her welfare.

[5]    The summary records that these incidents related to a variety of forms of conduct on your part including damage to property and violence directed towards your former partner. This included the infliction of physical blows along with threats to kill. Her response when confronted with this type of conduct was to telephone the police. This usually resulted in you being asked or told by the police to leave the address. On some occasions you were arrested. You have several previous convictions going back to 2008 for assaulting your former partner and threatening to kill her. On two occasions during 2017 you were sentenced to imprisonment on these charges.

[6]    The events leading to the present charge began with an incident that occurred in the early hours of Friday 22 November 2019. This caused your former partner to contact the police but by the time they arrived at the address you had already left.

[7]    On the evening of Saturday 23 November 2019, you, your former partner and five of your six children were at the address. Three children from a neighbouring address were also present. They were aged between seven and 14 years.

[8]    You had been consuming alcohol there over the course of the day. After returning from purchasing more alcohol you began walking around the address behaving in an aggressive manner. During this, you were heard within earshot of the children to say you were going to kill their mother.

[9]    At 6.27 pm Crystal telephoned the police and requested their assistance. This prompted you to punch her in the head, causing her to fall to the ground on a concrete area next to the house. You then grabbed her hair with one hand whilst you continued punching her in the head at least four more times as she tried to protect her head with her hands. This assault occurred in front of both your children and the children visiting the address. A 14 year old child, who was visiting the address, intervened in an attempt to pull you away as the assault continued but was unable to do so. Your six year old child also tried to pull you off his mother by grabbing at your singlet and biting you but you pushed him away.

[10]   You then picked up a paving brick that was lying nearby. This weighed between six and seven kilograms. As Crystal lay on the ground on her back you struck her on and about the head with the brick on six occasions, telling her to die and calling her a despicable name. After briefly putting the brick down on the ground you lifted it up again and struck her between seven and ten more times to the head, saying “die you fucking asshole”.

[11]   The attack lasted for approximately 90 seconds and left Crystal unconscious on the ground. You then got into your vehicle and left the address, leaving the bloodied paving brick near where she lay. The whole of the assault was recorded electronically on the 111 call that Crystal had made to the police as the assault began. The abusive comments you made during the incident were also recorded.

[12]   Three of the children who were present witnessed the incident involving the infliction of blows with the brick. The remaining children at the address heard screaming but did not witness the actions that were causing this.

[13]   You then travelled to your sister’s address, where your sister told you that you needed to do the right thing and take responsibility for what you had done. She and her husband then drove you back to your former partner’s address, where the police were already in attendance. You were arrested at that time.

[14]   Crystal was taken to hospital, but her injuries were unsurvivable and she died on the afternoon of Tuesday 26 November 2019. A post mortem examination revealed the cause of her death to be blunt force trauma to the skull resulting in significant brain injury. The examination revealed numerous blunt force injuries to her head and neck region, with the majority of injuries being to the head. There were multiple bruises, abrasions, lacerations and skull and nasal fractures to all planes of the head, including the face. The pattern of injuries was in keeping with multiple impacts to the head and neck by a blunt object with considerable force. Other bruises and abrasions were visible on Crystal’s limbs and torso. In particular, her left arm had multiple bruises and abrasions.

[15]   When the police interviewed you, you admitted assaulting Crystal and you said you “just lost it”. You admitted punching her in the head and hitting her with the paving brick, but said you believed you had only struck her twice with the brick.

[16]   You entered your guilty plea at a very early stage. You appeared in this Court for the first time on 19 November 2019. On that occasion the Court ordered a report from a psychiatrist to be obtained. You then entered a guilty plea at your next appearance on 25 February 2020.

Victim impact statements

[17]   I have received victim impact statements from Crystal’s mother and her aunt. One of these was read to the Court today and you have heard it. Although the statements are in measured terms they give some insight into the degree of harm and grief your offending has caused. It will be many years, if ever, before the family are

able to come to terms with the grief they are suffering as a result of Crystal’s death. As her aunt said, when Crystal died a part of her died as well. Her mother made remarks to similar effect. The extent to which your offending has caused psychological harm to the children who witnessed and heard the incident are also likely to be incalculable and long-lasting.

Approach

[18]   There is no dispute that the sentence to be imposed on you must be one of life imprisonment. The main issue to be determined today is the length of the minimum term of imprisonment you will be required to serve before being eligible to apply for parole.

[19]   The Crown contends that several aggravating features of your offending engage s 104 of the Sentencing Act 2002 so that the Court must impose a minimum term of not less than 17 years imprisonment unless it would be manifestly unjust for that to be done.

[20]   In cases such as this the Court must first consider the sentences imposed in other broadly similar cases in order to ascertain what minimum term of imprisonment would ordinarily be imposed without taking into account s 104. Next, the Court must determine whether s 104 is engaged. If it is, the Court must decide whether the imposition of the 17 year minimum period of imprisonment required by s 104 would be manifestly unjust.1 In large part this requires the Court to stand back and determine whether your offending falls into that category of offending to which s 104 was designed to apply.

What minimum term would be appropriate leaving aside s 104?

[21]   Your offending involves numerous aggravating factors. First, it involved a sustained attack to the head with a very hard object that you were using as a weapon. It involved numerous blows to both the head and torso of a person who was effectively defenceless. The infliction of violence was also accompanied by degrading and

1      R v Williams [2005] 2 NZLR 506 (CA) at [52]–[54].

derisive taunts. I do not accept your counsel’s submission that these merely showed your intention to kill Crystal. They also demonstrate the fact that you held her in total contempt and considered she deserved to die in this way. Then there is the fact that your offending occurred within the sight of three of the children and within earshot of five others. The effects of your offending on everyone who was present that day will, as I have said, be catastrophic. Finally, you did not stay to seek medical help when the attack finished. Instead, you left the scene and left others to deal with the aftermath. I accept, however, that you returned to the scene voluntarily a short time later.

[22]   The Crown has provided me with cases involving offending that it says could be regarded as broadly similar to those in your case.2 It says those cases demonstrate that a starting point for the minimum term of at least 18 to 20 years imprisonment will be warranted even leaving aside s 104. I consider that starting point to be too high in your case. The cases to which the Crown has referred contain aggravating factors in the form of planning and premeditation that are simply not present in your case. On the other hand, your counsel submits a starting point of around 14 to 16 years imprisonment is appropriate. I consider that to be too low having regard to the aggravating features of your offending.

[23]   Given the aggravating features of your offending I am satisfied that, putting aside the effect of s 104, a minimum term of imprisonment of 17 years would be required. From that, however, a discount must be applied to reflect the fact that you pleaded guilty to the charge at a very early stage. In doing so you saved your family and Crystal’s family from the traumatic experience of being required to relive her death through the ordeal of a trial by a jury. The guilty plea also reflects your acceptance of responsibility and remorse for your actions.

[24]   The discount to be applied for guilty pleas in the present context is different to that taken in imposing a conventional sentence, when a discount of up to 25 per cent may be available. In the present context discounts of no more than one to two years are generally applied. Given the inevitability of conviction if you had defended the

2      Christian v R [2017] NZCA 168; Singh v R [2019] NZCA 436.

charge, I consider your guilty plea warrants a discount of 18 months, thereby bringing the minimum term of imprisonment down to 15 and a half years.

[25]   I would not reduce the minimum term further to reflect matters contained in a report your counsel has provided under s 27 of the Sentencing Act 2002. This reveals you were brought up by your grandparents whom you believed were your parents. It came as a shock to you to discover when you were nine years of age that they were in fact your grandparents. Then at 10 or 11 years of age you were removed from the Māori immersion school you had been attending and placed in a mainstream school. This was a further shock to you and you failed to adapt to it, leaving school at the age of 15 years. The report says you were also subjected to violence on occasions at the hands of your grandfather. All of these factors are said to have invoked in you feelings of abandonment, insecurity and confusion as to your upbringing. These factors also led to you becoming involved with drugs at an early age and you also began to associate with a gang.

[26]   In cases of serious offending such as murder the Court’s ability to exercise its discretion to give credit for factors such as this is more constrained than it might be in other contexts.3 I also see little in the way of any nexus between the factors raised in the report and the present offending. The present offending appears to have been the culmination of many years of abuse of your former partner in one form or another. Although the relationship was not as violent as many the Court sadly encounters, there is no escaping the fact that you had been abusive towards Crystal for many years before the final incident that led to her death. You were 36 years of age when you killed her. You have had ample opportunities to change your approach to your relationship with her. I do not consider any further credit should be given for the issues identified in the s 27 report.

Is s 104 engaged?

[27]   I now need to consider whether s 104 applies to your offending. The Crown contends your offending was committed with a high degree of brutality, cruelty,

3      Hohua v R [2019] NZCA 533 at [45].

depravity and callousness.4 It also says the section is engaged because Crystal was particularly vulnerable due to her slight physical build and the fact that she was lying defenceless on the ground at the time of the attack.5

[28]   The authorities make it clear that the factors set out in s 104 need to be present to a high level before the section is engaged.6 I do not consider the factors relied on by the Crown establish vulnerability on Crystal’s part to the extent required to engage s 104.

[29]   Virtually all murders involve, to some degree, elements of brutality, callousness and cruelty. Again, however, those factors must be present to a high level before the section is engaged. I accept without hesitation that the attack with the paving brick involved elements of brutality and cruelty. Standing alone, however, I consider those aspects of your offending may not have been sufficient to elevate the gravity of the offending to the point where s 104 was engaged. When the taunts you made to Crystal and the presence of the children are added to the mix, however, I consider the position to be different. The taunts to Crystal as you beat her with the brick added a further element of depravity and callousness to the brutality already inherent in the physical act. Furthermore, the children were not only present when you attacked Crystal, but two of them also tried to no avail to stop you. The fact that you carried out this attack in the presence of, and in the face of opposition by, the children takes the callousness and cruelty of your offending to another level. It is difficult to see how any father could subject his young children and their friends to seeing and hearing conduct such as this. I therefore consider s 104 is engaged on this basis.

[30]   The next issue to determine is whether it would be manifestly unjust to impose a minimum term of imprisonment of 17 years when the minimum term would otherwise be 15 and a half years. This requires the Court to stand back and determine whether your offending falls within the type of offending for which s 104 is designed. I have concluded that it does but for one factor. If I was to impose a sentence of 17

4      Sentencing Act 2002, s 104(1)(e).

5      Section 104(1)(g).

6      R v Slade [2005] 2 NZLR 526 (CA) at [40].

years imprisonment you would receive no credit at all for your guilty plea. I consider that outcome would be manifestly unjust in this case because your plea has had the very real benefit of sparing your family the need to go through the ordeal of a jury trial in which several of them may have been required to give evidence against you.

[31]   I also consider the factual situation in the present case is similar to that in the recent judgment of the Court of Appeal in Vea v R.7 In that case the appellant had pleaded guilty at an early stage to a charge of murder. Section 104 was engaged because the offence had been committed after the appellant had broken into the victim’s home and lain in wait to confront him with a machete. The sentencing Judge had selected a starting point for the minimum term of 17 and a half years imprisonment. He then allowed a discount of 12 months to reflect the guilty plea. This produced a minimum term of imprisonment of 16 and a half years. The Judge found that it was not manifestly unjust to impose the minimum term of 17 years imprisonment required by s 104 rather than the 16 and a half years he would otherwise have imposed.

[32]   The Court of Appeal upheld the starting point but held that an effective discount of just six months would give the appellant very little credit for the early guilty plea. It considered the plea, coupled with credit for remorse and efforts to atone for the offending, should have been marked by a reduction of two years.8 The Court then held that it would be manifestly unjust to impose a minimum term of 17 years imprisonment when a minimum term of 15 and a half years imprisonment would otherwise have been appropriate.9

[33]   I find myself in exactly the same position in this case. You entered your guilty plea at the very earliest stage. You have also expressed your remorse. I consider it would be manifestly unjust for you to be required to serve a minimum term of imprisonment of 17 years when ordinarily you would be required to serve a minimum term of 15 and a half years before being eligible to apply for parole.

7      Vea v R [2020] NZCA 68.

8 At [23].

9 At [24].

Sentence

[34]   Mr Peeni, on the charge of murder to which you have entered a guilty plea, you are sentenced to life imprisonment and you are ordered to serve a minimum term of 15 and a half years before being eligible to apply for parole.

[35]Stand down.

Lang J