R v Pou
[2023] NZHC 2681
•26 September 2023
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2020-088-001445
[2023] NZHC 2681
THE KING v
SAMUEL HEMUERA POU
Hearing: 26 September 2023 Appearances:
B O’Connor for the Crown
A Fairley and J Young for the Defendant
Judgment:
26 September 2023
(ORAL) SENTENCING NOTES OF WALKER J
R v POU [2023] NZHC 2681 [26 September 2023]
[1] Samuel Pou, you appear for sentence following a jury’s finding of guilt for the murder of Bridget Simmonds between 23 February 2019 and 16 March 2019.
[2] Before going any further, I first acknowledge members of Bridget’s family, both those who are present in court today and those who are not.
[3] Victims must not be lost sight of in the sentencing process. I have been provided with victim impact statements from and on behalf of members of Bridget’s family, namely from:
(a)Caroline Callen, Bridget’s mother, who recorded her statement before her death;
(b)Rachel Simmonds, Bridget’s sister read by Bridget’s cousin Marcus Callen;
(c)The Callen Family - being the five siblings of Bridget’s mother – read by Irene Callen.
[4] I have read those statements with care. They are a window into the lasting impact of not just Bridget’s death but the manner in which she died. The glimpse I have of Bridget is of a loving and much loved daughter, mother of two, sister, cousin, niece and friend to many. She has been described as a free spirit, an artist, an adventurer, and a genuinely good “old soul”.
[5] Mr Pou, it may be a forlorn hope, but I nonetheless do hope that the voices of Bridget’s family have left you with some sense of the depth of harm, grief and suffering caused by you—the uncertainty they had to endure over the period when Bridget was missing and the devastation when she was found in a makeshift, unmarked grave.
[6] I acknowledge the family’s dignity and courage shown this morning and thank them for the measured way in which they presented their statements.
Facts
[7] Although you are well aware of your offending, sentencing is conducted for and on behalf of the community and so I must set out the facts again. I begin with the lead up to the events on which you are to be sentenced today though these are matters for which you have already been sentenced following your guilty pleas.
[8] You and Bridget commenced a relationship towards the end of 2018. On 17 January 2019 you had an argument with her. You punched Bridget to the side of the head. As a result, she received a through and through laceration to her outer right ear. She sought medical attention that day.
[9] On 14 February 2019, you and Bridget had been socialising with friends. She wanted to stay. You wanted to leave. You considered Bridget ought to leave with you. When you both arrived back at the cabin you pushed Bridget onto the bed. You then placed two thumbs into her eyes and pushed down to try and gouge her eyes out, while you straddled her. You then punched her with a closed fist with alternating hands to her face and head. Bridget tried to fight back. She then curled up and rolled off the bed. You rolled off with her. She tried to protect her face but you gouged her left eye with your left thumb.
[10] You started to punch Bridget in the ribs to stop her screaming. She then got up and made her way to the other side of the bed. You followed her to prevent her from leaving. You struck her in the back and in the head, saying “If I see you hugging another man, I’ll take you out and waste ya”. Bridget fell to the floor as a result of your blow. She attempted to crawl towards the door. You continued to punch her body and head. You told her to “Get up or I’ll waste you even more. Now sit on the bed”.
[11] You made more accusations of cheating. Bridget tried to protect her head. You told her to fight back, getting increasingly angrier as she lay on the bed finding it difficult to breathe.
[12] You then began to calm down and pace the room. You fell asleep at 6 am. Bridget then left the cabin and went to her friend’s cabin. She tried to rest but could
not because of the pain in her ribs and eye. When she was standing on the deck outside her friend’s cabin you yelled at her. Fearing that others would find out what was happening, Bridget returned to you. You were aggressive and blamed her for everything. You prevented her from leaving the cabin. Bridget tried to get a drink of water and her phone charger at different times during the day but you prevented her from doing so. She informed you that she had a doctor’s appointment at 3.30 pm, which you let her attend.
[13] Bridget left Whangārei after that incident and took refuge with her mother in Kerikeri.
[14] On 23 February 2019, Bridget’s mother dropped her daughter at Countdown, Regent in Whangārei. From there, after buying some groceries, Bridget took a taxi to the Wilson Road property. Mrs Callen did not see or hear from her daughter again.
[15] There were extensive police inquiries over the course of 15 months to try and locate Bridget. The family also made their own searches and inquiries. They were all unsuccessful. The police spoke to you on 9 June 2020. You denied that you assaulted Bridget. You denied that you had been at the Wilson Road property at the time of her disappearance. You claimed you were staying at a campsite in Raumanga between 14 February and 24 April 2019.
[16] Two days later, on 11 June 2020, you returned to the police station and admitted in a DVD interview that Bridget was at the Wilson Road property with you between 23 February and 16 March 2019 and that she stayed with you in your tent by the river. You admitted beating her.
[17] You told the police that one evening when the two of you were in your tent you beat her because she kept spilling her wine and was singing a song about hating you. You claimed you only hit her legs because you did not want to kill her. You said you alternated between hitting her with a tree branch and punching her for over an hour and a half, while you said she was “playing up”. You said you hit her about 100 times. You said she went quiet at a point during the beating. You checked to see if she was breathing. She was not. You claimed you tried to resuscitate her, without success.
[18] You said you then dragged her body in a blanket to a nearby ditch on the Wilson Road property and covered her body with leaves and debris.
[19] After you killed Bridget, you used her bank card in Tikipunga to check her bank balance. She did not have any money in her account. You admitted that you would have taken money from her account if there had been any.
[20] In the 15 months that followed Bridget’s disappearance, despite requests through the media for information and enquiries by the police, you hid the fact of her death.
[21] On 11 June 2020, after your police interview you went with police officers to the Wilson Road property and showed the police where you had buried Bridget. Only her skeletal remains were to be found.
[22] In his post-mortem examination the pathologist, Dr Tse, found perimortem, or possible perimortem fractures in one case on her right wrist, right-hand – two fractures
– outside right ankle, right fibula at the knee end, outside left ankle, right foot, left foot and the anterior end of the zygomatic arch. (This is the bone extending from the temporal bone at the side of the head to the upper jawbone.) So, nine fractures in all, including one possible.
[23]In relation to the fracture to the right wrist, Dr Tse’s evidence was:
It was (inaudible 11:27:35) – it would call like a defence fracture or a nightstick fracture, so would typically describe where the person is out at night and a person attacks, he’s been attacked and he would ward off the object, so he would put – him or her would put an arm up to ward off an object coming into contact with him, so that’s typically described as a nightstick fracture”.
[24]Dr Tse could not however rule out that it may not be a defensive wound.
[25] In respect of the fractures to Bridget’s ankles and feet, Dr Tse said that a person could stand on the unfractured leg but could not bear weight, put force or stand on the fractured leg.
[26] In respect of the fractured right fibula at the knee end, Dr Tse, commenting on the degree of force, said there are two mechanisms. One is a direct impact onto the knee region causing the fracture or it can be related to fracture number three where a significant rotational force has occurred. He considered the degree of force to be significant. In his words “if it was a direct blow to the knee, again it would be significant force. Not a punch, probably a kick, a stomp or an object”.
[27] Regarding the fractured outside left ankle, Dr Tse said “So, again, the mechanism could be a direct impact, again, not by a punch, probably a kick or a stomp or an object, the degree of force will be significant, it has broken the bone itself, or it could be a forceful rotation of the ankles or rolling of the ankle in lay terms”.
[28] While the cause of death was not able to be determined because of the level of decomposition this does not prevent the Court from making factual findings about your conduct on the basis of all the other evidence in the trial. In other words, the Court does not focus only on the injuries apparent on examination of Bridget’s skeletal remains.
[29] At trial, the Crown put its case for murderous intent on either of two alternative bases. The primary submission to the jury was that you intended to kill Ms Simmonds. Alternatively, the Crown said at the very least, you intended to cause her bodily injury knowing that it was likely to cause death and you were reckless as to whether death occurred or not.
[30] I sentence you today on the basis of that alternative submission for murderous intent.
Approach to sentencing
[31] Your lawyer, Mr Fairley, this morning conveyed to the Court that you accept that a mandatory life sentence is called for and further that it is hard to resist the Crown’s position that s 104 of the Sentencing Act 2002 is engaged. You have instructed your lawyer not to advance submissions in opposition to the Crown’s position.
[32] Despite this, as the sentencing Judge, I must go through the exercise of sentencing according to law.
[33] 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.1 Whether a life sentence for murder would be manifestly unjust is likely reached only in an exceptional case.2
[34] There are no such circumstances, either in relation to you or your offending justifying departure from that presumption. Nor does your lawyer dispute that a minimum period of imprisonment is to be imposed. That is the only position available on the facts. The question for me in sentencing you is the minimum term of imprisonment, or MPI, which you must serve. The MPI is not the sentence. It is the period you must spend in prison before you can apply to be released on parole to hold you accountable for the harm done to the victim and the community by your offending, to denounce your conduct, to deter you and others from committing the same or similar offences, and to protect the community from you.
[35] I emphasise that the sentence for murder is life. If you are released on parole, you will be subject to recall to prison at any time for the rest of your life if it is believed you have since become a threat to the community again.
[36] Of course, no minimum term can possibly achieve accountability for or be equal to Bridget’s life and the loss suffered by her family.
[37] If a person is sentenced to life imprisonment for murder, the Court must impose an MPI of not less than 10 years.3 If 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.
1 Sentencing Act 2002, s 102.
2 R v Rapira [2003] 3 NZLR 794 (CA) at [121].
3 Sentencing Act, s 103(2).
[38] The Court of Appeal recently suggested a three step approach to the assessment of a determinate MPI where s 104 is engaged: 4
(a)First, what notional MPI is called for under s 103(2)?
(b)Second, does a s 104 category apply?
(c)Third, if s 104 applies, but the notional MPI called for by the s 103 methodology is less than 17 years, would the imposition of a 17-year MPI be manifestly unjust?
[39] I note that comparing other cases can answer both what is the appropriate MPI and the question of whether s 104 applies provided that the relevant sentencing principles are kept in mind.5
[40]So, what is the appropriate notional starting point in this case?
[41] It involves a consideration of the aggravating and mitigating factors of your offending. There are no mitigating factors in my assessment. There are three or four aggravating features:
(a)The brutality of the violence inflicted: You said in the DVD interview with Police that you didn’t count the number of punches. But when asked to guess the number, you said “about a hundred, hundred times maybe.” Then, when asked how many times you hit Ms Simmonds with a piece of wood, you said “Would have been about, a dozen, maybe a few more”. Your uncertainty about the actual number does not change the inevitable conclusion that the offending was prolonged and brutal. Bridget’s injuries were severe. I do not accept your statement that you attacked her legs only. This was not a carefully calibrated attack focused on Bridget’ legs. I put to one side the fracture to the zygomatic arch which could have occurred when you dragged Bridget’s
4 Frost v R [2023] NZCA 294 at [34]; and Davis v R [2019] NZCA 40; [2019] 3 NZLR 43 at [25].
5 Frost, above n 4, at [36]; and Davis, above n 4, at [27].
body to the ditch. My view is informed by the fact that you had hit Bridget in the head on previous occasions. You agreed that when you get angry you become blind with rage. In my assessment, it is not conceivable that you could control yourself when in a rage. There is also the fracture to the right wrist suggesting that Bridget tried to protect her head.
(b)The use of a weapon: You say that you used a tree branch to inflict the blows as well as your fist.
(c)Abuse of a position of trust: The violence was committed in the context of an intimate relationship. This element is present to a moderately high degree but just as easily informs the factor of vulnerability as a standalone factor.
(d)Bridget’s vulnerability through circumstance and location: I accept that Bridget was particularly vulnerable. You were in a relationship with her that was marked by intimate partner violence. You betrayed her trust. The remote location in the tent at Wilson Road was akin to Bridget’s home, even if temporary. The remoteness and lack of cell phone coverage meant that she was helpless. Once you inflicted the fractures she was even more vulnerable and unable to escape.
[42] There is also the aggravating matter of the earlier and historic violent offending. In my assessment, and by reference to other cases of similar violence in a relationship context, the prolonged and fierce nature of your offending would, even absent s 104 factors, attract an MPI of 16 years and six months’ imprisonment.6
[43]I turn to your personal circumstances.
[44] There are two reports before the Court. One is a Provision of Advice to Court (PAC report). You did not engage with Corrections to update the first PAC report. No reason was recorded. The report writer therefore compiled his report from the first
6 R v Mete [2020] NZHC 1573; R v Peeni [2020] NZHC 135; R v Korewha [2015] NZHC 308.
PAC report. Even then, the content of the report is largely based on information held by Corrections including notes made whilst you were on release conditions in 2008 and 2009.
[45] I have gleaned what I can about your background from those reports. You are now 61 and of Ngāpuhi descent. You reported to Probation Officers in 2008 or thereabouts that you and [REDACTED] were victims of long-term abuse by a relative.
[46] The report writer describes you as a troubled man likely battling post-traumatic stress disorder from that abuse. Your risk to the community is assessed as very high.
[47] You have an extensive criminal history dating back to 1977 when you were 15 years old. You appeared before the court on charges of burglary, theft and unlawfully interfering with motor vehicles. From that time through to 2007 you were convicted of a number of escalating violent offences. It does appear however that you remained outside the criminal justice system for about 10 years until June 2020. More recent offending includes serious intimate partner violence, including as against Bridget to which you pleaded guilty before your first trial. The report writer of the PAC report links your anger arising from your past as a child and your violent offending.
[48] The second report is a report dated 2021. It aims to provide cultural and social context to your offending. It was prepared after two interviews with you in 2021 and an interview with your sister.
[49] You were raised in Otaika. You had eight siblings. Both your parents were employed as you were growing up. You say that your father would drink alcohol on weekends but your mother was not a big drinker. You did not report any violence perpetrated by your father against your mother.
[50] Your life was seriously impacted by abuse by an uncle when you were about 11 years old. You were courageous enough to report the abuse. You report that he was
found guilty and sentenced to imprisonment. You considered that the sentence imposed was nowhere near adequate to address the harm to you and family members.
[51] You had learning difficulties which must have made school painful. You got into trouble and were expelled at an early age. You say you only learnt to read in prison.
[52] You spoke to the report writer about your early difficulties with anger. You said that things that make you angry are incompetence and stupidity. You make reference to your father being incompetent because you told him what your uncle was doing, and he told you to stop lying and gave you a hiding. You say you felt alone as a child, you were put into state care and you say you suffered further abuse while you were in state care. You report you have spent 28 to 30 years of your life in prison.
[53] The report writer suggests there is a linkage between your offending giving rise to the murder charge and your experience of systemic deprivation; in-home and state care abuse; disordered attachment; neurodisability; alcohol; and your poor mental wellbeing. She says your offending can be considered as a response to perceived threat or fear-based behaviour.
[54] Mr Pou, your childhood clearly had many tragic elements. It appears to have left you simmering with resentment and explosively volatile. The tragedy is that you took this resentment out on others not able to protect themselves. All things considered, it is difficult to draw any material nexus between that background and this offending. I am not satisfied that the report writer’s conclusion accounts for your conduct. It follows that the aspects of your background described do not materially mitigate your moral responsibility for what you have done.
[55] I am also conscious that there was evidence at trial that you told someone that you had “wasted” Bridget because she was going to nark you off.
[56] In sum, there are no sufficient personal mitigating factors to reduce the notional MPI.
Are any s 104 circumstances engaged?
[57]The Crown contend that two s 104 factors are engaged in this case:
(a)First, the length of the beating you inflicted, the number of blows and the deliberate disabling of Bridget along with the callous concealment of her body for 15 months shows that the murder was committed with a high level of brutality, cruelty, or callousness; and
(b)Secondly, that Bridget was particularly vulnerable because of the isolated rural location and fact she was disabled by fractures to her ankles and feet.
[58] Both the Crown and your lawyer have referred cases to me for assistance when identifying the appropriate nominal MPI and which feature s 104 circumstances. I have considered those cases along with others.7 Those cases will be listed in a footnote to my sentencing notes.
[59] There is no murder that is not in some sense brutal, cruel, depraved or callous but the threshold for engagement of s 104(1)(e) is that the brutality, cruelty, depravity or callousness must be present at a high level. The Court of Appeal has identified callousness as “insensitive and cruel disregard for others”.8 It involves a lack of feeling, empathy and sensibility, or a “numbness of the soul”.9
[60] I accept that the threshold for s 104(1)(e) is engaged. In other words, that there was the requisite level of brutality because the beating was vicious and prolonged. It was also cruel that the force of the beating was such that Bridget could not escape due to her fractured legs and ankles. Even if your assessment of the duration and number of blows is unreliable, I am satisfied that it was still a sustained and brutal beating. She was at your mercy, and you showed none.
7 R v Korewha [2015] NZHC 308; R v Uluakiola CA 123/06, 6 December 2006; R v Te Hiko [2019] NZCA 41; R v Singh [2023] NZHC 2040; R v Gu [2023] NZHC 2109; R v Gossett [2019] NZHC 1366; R v Ford [2020] NZHC 2579; Uhrle v R [2015] NZCA 412; Carroll v R [2018] NZCA 320; Marong v R [2020] NZCA 179; R v K [2020] NZHC 233 and Akash v R [2017] NZCA 122.
8 R v Gottermeyer [2014] NZCA 205 at [79(a)].
9 R v K [2020] NZHC 233 at [47].
[61] In addition, I am satisfied that you were callously indifferent to Bridget’s suffering. You did not seek medical assistance when she was unresponsive. You dragged her to a shallow grave under leaves and debris. You took her debit card and tried to use it after her death.10 Each of those three factors on their own demonstrates such a numbness of the soul that, in my assessment, the s 104 test is met.
[62] Although not strictly necessary to decide the point given my finding above, I am also satisfied that s 104(g) is also met. Bridget was particularly vulnerable in light of the circumstances already discussed. She was disabled by the beating in a remote place with no one to help her.
[63] Having considered those factors, and after comparing them to other s104 cases and while acknowledging that each case must be determined on its own facts, I am satisfied that the threshold in each of s 104 (1)(e) and s 104 (1)(g) is met.
[64] I am therefore required to make an order imposing an MPI of 17 years’ imprisonment unless that would be manifestly unjust.
Is a 17-year MPI manifestly unjust?
[65] It is necessary to give effect to the legislative policy mandated by the statutory MPI for particularly callous or brutal murders.11 Once s 104 is triggered, this Court is constrained. There would need to be powerful mitigating features to displace the MPI presumption.12 The minimum 17-years period is not departed from lightly.13
[66] I am not satisfied that the content of these reports entitles me to find it would be manifestly unjust for the Court to impose a 17 year MPI or that there are other aspects of your background which materially mitigate your moral responsibility for what you have done. I am not satisfied that there are any factors rendering it manifestly unjust if a 17 year MPI is imposed. That is the minimum period you must serve.
10 Post-death conduct can be relevant to the s 104(1) inquiry: K v R [2020] NZCA 656 at [164].
11 Hohua v R [2019] NZCA 533 at [44]; R v Rakuraku [2014] NZHC 3270 at [61].
12 Malik v R [2015] NZCA 597 at [32].
13 R v Williams [2005] 2 NZLR 506 (CA) at [66].
Sentence
[67]Samuel Pou, I sentence you to life imprisonment.
[68] In addition, I order a minimum period of imprisonment of 17 years on your conviction for the murder of Bridget Simmonds. This means that you must remain in prison until at least that time. Whether you are released and when you are released will depend on the Parole Board at that time.
[69]That concludes my sentencing, please stand down.
............................................................
Walker J