R v Ray

[2014] NZHC 599

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-087-000175 [2014] NZHC 599

THE QUEEN

v

THOMAS EDWARD RAY

Hearing:                   28 March 2014

Appearances:

Charge: Plea:

H A Wrigley for Crown

W Lawson for Defendant

Murder

Guilty

Sentenced:               28 March 2014

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Rotorua

W Lawson, Rotorua

R v RAY [2014] NZHC 599 [28 March 2014]

[1]      Thomas Edward Ray, at the age of 32 you are for sentence in this Court having pleaded guilty to one count of murder.   The sentence for murder is life imprisonment.  That is the sentence the Court must impose on you.  The only issue for today is the length of the minimum term that you must serve before you are eligible to apply for parole.

[2]      As a preliminary matter I want to acknowledge the presence of the family of the victim who are here in Court.  I also acknowledge members of your family who are here today. A number of them have travelled some distance to be here today. All of them have been affected by your actions.

[3]      Mr Ray, I hope that seeing all these people in Court will make you realise the impact and effect your actions have had and will continue to have on the lives of these people.

[4]      I acknowledge that you have written to the Court.   In the letter you have expressed your apologies and deepest remorse to the whanau of your victim and also to your own whanau. You have said that if you could retract your actions you would. Unfortunately Mr Ray that is impossible and you and those affected by your actions will have to live with the consequences of that for some time, in some cases for the rest of their lives.

[5]      The facts can be stated shortly.  You and the deceased, Gareth Kaipara, who was 23 years old, both lived in Kawerau.  You were well known to each other.  You were related through your adopted mother.  You and he often socialised and drank together.

[6]      In the middle of the afternoon on 10 January 2013 the deceased came to your home.  Your mother and your young nephew, who at the time was nine years old, were also there.  Shortly after he arrived, you and the deceased began drinking beer together in a shed at the rear of the property.  At about 4 in the afternoon more beer was purchased.  When you got home you, your mother and the deceased carried on drinking in the shed at the property.  After a while your mother went back inside leaving you and the deceased together. You began play fighting in the back yard.  By

about half past six this had developed into a serious fight with the two of you going at each other, punching and wrestling.  You were temporarily knocked out as a result of the fighting and your counsel says your leg was broken.   After you regained consciousness you and the deceased shook hands.  You then carried on drinking and arguing about family issues and the injuries each of you had caused the other during the fighting but there was no indication of what was to follow.

[7]      About 8 o’clock that evening you and the deceased went inside to have something to eat. After getting some food both of you sat down at the dining table in the kitchen.  The deceased was at the head of the table and you were on the side nearest the kitchen bench.  Your young nephew was at the table as well and your mother was on a couch near the table.

[8]      While you and the deceased were eating, you got up, went over to a wooden knife block on the kitchen bench.  You took from the block a large stainless steel carving knife, measuring about 32 cm in total, with a 19 cm blade, out of the block. To put that in practical terms Mr Ray the knife was about the length of this ruler and the blade was about two-thirds of it, about that much.   You sharpened that knife while looking at the deceased.  He just carried on eating.

[9]      You were standing to his right hand side. You then threw the sharpening steel on the ground, placed your left hand on the back of his shoulders and, using your right hand, put the point of the knife halfway up the right hand side of his neck and pushed the blade completely through his neck until the hilt of the handle hit his neck. The end of the blade poked out through the other side of his neck.  The blade cut his voice box and his left internal jugular vein.  He fell off his chair onto the floor.  You stood over him and yelled at him, saying it was his fault and that he should not have come over that day.

[10]     Your mother jumped up and tried to help the deceased immediately.   You pushed her away and continued to yell abuse at the deceased.  Your young nephew ran out of the house.  Your mother called 111 and tried to stem the bleeding while waiting for the ambulance. All resuscitation attempts were unsuccessful.

[11]     Later that night you were interviewed by the police.  You admitted stabbing the  deceased  but  were  reluctant  to  speak  about  it  in  any  detail.    You  initially suggested he had lunged at you and had been abusive towards you but that was not true.

[12]     Mr Ray you are the second oldest of seven children.  You were adopted at birth.  Your parents separated while you were young.  You have had issues from an early age.  You started using alcohol and marijuana at a very young age.  You have used methamphetamine on rare occasions.  The probation officer considers there is a link between substance abuse and your prior offending (which is largely nuisance and driving offending), although as Ms Wrigley submitted you have two convictions for aggravated robbery dating back to 1998.

[13]     You were diagnosed with depression in 2010 and schizophrenia in 2011.  You are on medication for those conditions.  You find it difficult to relate to people.  You have been subjected to assaults in prison. You have attempted suicide in the past.

[14]     You told the probation officer you entered a guilty plea because you wanted to accept responsibility for what had taken place.  You verbalised regret and remorse on more than one occasion.  It seems that apart from the earlier assaults and fighting between you and the deceased you were also angry that he had damaged one of your boots.  However there can be no excuse or explanation for what occurred Mr Ray. You said you never intended to cause his death.  But you must have known that to stab someone in the neck as you did was likely to cause him to die.

[15]     You  are  assessed  by  the  probation  officer  as  being  at  a  high  risk  of reoffending.  That will remain as long as the underlying issues that have contributed to your offending are not addressed.   The fact you have undertaken rehabilitative programmes in the past but still offended in these circumstances and in this particularly vicious and violent manner supports that assessment and is of concern. There is a need for your underlying issues to be addressed before there can be any prospect of you being considered for parole.   As the probation officer notes the psychological assessment undertaken by a Department psychologist will determine the most appropriate interventions for you and when they will be implemented.

These are all matters the Parole Board will have to consider in due course very carefully.

[16]     Mr Ray, as I have said, and I hope the members of the public today and representatives   of   the   media   understand,   the   sentence   for   murder   is   life imprisonment.  The minimum term of imprisonment is not the sentence.  As you are to be sentenced to life imprisonment you will be subject to recall to prison for the rest of your life, even if granted parole at some stage in the future.

[17]     In the present case the Crown submit the minimum non-parole period before taking account of mitigating factors would be in the region of 11 years.  Mr Lawson submits the Court should fix a minimum non-parole period of 10 to 10½ years.

[18]     Having regard to the cases that counsel have referred to in their submissions,1 the purposes and principles of the Sentencing Act and the circumstances of this offending  I  consider  that  the  starting  point  for  the  minimum  non-parole  period should be 12 years.   However, taking account of your medical condition, which I accept affects your culpability and your acceptance of responsibility by your guilty plea, I conclude that a minimum term of 10½ years is appropriate.   In fixing that period, I draw the remarks of the probation officer to the attention of the Parole Board.

[19]     Mr Ray please stand.  For the murder of Gareth Kaipara you are sentenced to life imprisonment.  You are to serve a minimum term of imprisonment of 10½ years

before being eligible to apply for parole.  Stand down.

Venning J

1      R v Gottermeyer [2013] NZHC 2599; R v Middleton [2012] NZHC 3261; R v Mahuki HC Hamilton CRI-2009-019-008099, 3 September 2010;  R v Millar HC Auckland CRI-2010-090-

5044, 21 June 2011.