R v Reihana HC Rotorua CRI 2005-070-7328

[2007] NZHC 1941

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2005-070-7328

QUEEN

v

JASON AUGUST REIHANA

Hearing:         29 June 2007 (Heard at Rotorua)

Appearances: RG Ronayne and SJ Bridges for Crown

P Mabey QC for Prisoner

Judgment:      29 June 2007

Sentence imposed:     Murder (x2)

Life imprisonment on each charge – minimum non-parole

period of 21 years
Wounding with intent to cause grievous bodily harm (x1)

8 years’ imprisonment
Sentences to be served concurrently

SENTENCING NOTES OF ASHER J

Solicitors:

Ronayne Hollister-Jones Lellman PO Box 13063 Tauranga

PG Mabey QC, PO Box 13199 Tauranga

R V REIHANA HC ROT CRI 2005-070-7328  29 June 2007

[1]      Mr Reihana you have been found guilty by a jury of murdering Teresa Gunn and George Grabner.   Your defence of provocation was not accepted.   You have pleaded guilty to wounding Wiki Ngarimu with intent to cause grievous bodily harm. I first want to set out the facts relating to the two murders.

[2]      You  commenced  your  relationship  with  Ms Gunn  in  1999.    During  that relationship you had two boys who  are now six and three  years old.   You and Ms Gunn obtained a Housing Corporation home in Mansels Road in Tauranga.  By late 2001 there were some difficulties in your relationship.   The Police attended seven  incidents  at  your  home  from  November 2001  onwards.    None  of  them involved any serious degree of physical violence and it is by no means clear that you were the instigator of the incidents or of any of the physical exchanges that took place.  There was a matter that involved the Police and the children where you were not at fault.  However, there is no doubt that by the later stages in your relationship you  were  adopting  an  attitude  towards  Ms Gunn  that  was  at  times  extremely threatening and abusive.  It focused on your suspicions of her having a relationship with another man, and your inability to accept the concept that she might live her life without you.

[3]      In June 2005 you moved out of the Mansels Road property and went to live in Te Kawa near Otorohonga with the two boys.  Ms Gunn kept in close contact with the boys and with you.  She would visit you at Te Kawa and on occasions you and the boys would go to Tauranga.

[4]      By November 2005 Ms Gunn had decided that the relationship between you and her was finally over.   She told of you this.   It was something you could not accept.   The final deterioration of your relationship with her is graphically documented by the text exchanges that took place in the last weeks of Ms Gunn’s life.  Those exchanges from 3 December 2005, the last week and a half before the murders, despite the shorthand used, show great hostility and anger towards her on your part.  They are abusive.  You refer to her as a slut and a bitch at times.  You use swear words. In the text of 5 December 2005, six days before Ms Gunn’s death, you sent her perhaps the most graphic of all those texts calling her a slut and telling her

that she had better watch her back, and what goes around comes around.  There is no doubt from this text and the other texts that surround it that you were threatening her. I have no doubt that those texts reflect what was said in any verbal exchanges you were having.  Those texts do show moments of tenderness and love, and I have no doubt you did have a great love for her.  But the abuse and threats far outweigh those moments of tenderness.

[5]      There was an  incident  on  a  Friday in  December 2005  when  you  became angry with Ms Gunn because she was not home when you wanted her to be.  By the week before her death there is no doubt that she was very concerned about  her safety.  On Thursday 8 December 2005 she sought a temporary protection order from the Tauranga District Court.   It is a sad task to read her affidavit.   She says in it prophetically “I am fearful that if he saw me with another man that he would kill me and the person I was with.”  She says in the affidavit that she honestly believes that one day you would try and kill her.   She quotes things that you said to her like “watch your back bitch because you’ll never know when I’m behind you”.   These remarks accurately reflect the anger and the threats you were showing towards her at the time.

[6]      You defended this case on the basis that you never intended to kill Ms Gunn or anyone she was with, and that what happened was a spur of the moment loss of self control.  The jury rejected that provocation defence.  There is no doubt that, at least from the time of the text of 5 December 2005 and in the days that followed, you were having definite thoughts about  killing Ms Gunn and anyone she was with. These developed into a plan to go to Mansels Road and kill her and yourself.

[7]      On the Sunday of the murders, you arranged for your sons to be looked after. You arranged for the dog to be looked after.   You borrowed some money from a neighbour to pay for petrol so you could get to Tauranga, and you got out your best set of clothes and laid them out on your bed in a body position.  You may well have carried a knife with you at most times and have had one in the car, but you also armed yourself further with two large kitchen knives, which you took with you.

[8]      At  approximately  8:30  pm  on  the  Sunday  night  you  left  for  Tauranga, stopping en route to buy a bottle of whisky.  You drank some of it, although not a great deal.  When you arrived in Tauranga you deliberately and neatly parked your car about 700 metres away so that the occupants of Mansels Road would not hear its distinctive noise if you parked outside.   You did not want to alert them to your presence.

[9]      Ms Gunn in the meantime was having a Sunday night without incident with Mr Grabner.  He was her boyfriend and they had developed in a short time a close relationship.  They had watched a video and they were lying clothed on the bed.  I have no doubt that as you approached the front door you were intending to murder her and that determination may well have been further fuelled by the sight of a newish and unknown utility parked at the home.   You are a strong man and you effortlessly smashed the door down, bursting it with force from the door jam.  You went straight into Ms Gunn’s bedroom.

[10]     We do not know exactly what happened but there is no doubt that the first person to be attacked was Mr Grabner.   We are left to speculate as to whether he leapt to get in the way between you and Ms Gunn, but in any event you stabbed him a number of times with great ferocity.   His wounds show that he tried to protect himself with his hands and arms from powerful blows with a large knife and was cut to the bone as he endeavoured to do so.  The stab wound which ultimately killed him was a thrust of the knife administered with great strength to his inner thigh.   The force of the blow was such that the knife blade went right through the flesh and the main  artery  in  the  leg,  and  became  embedded  in  the  bone.    The  knife  broke. Mr Grabner, terribly wounded and bleeding profusely from the severed artery in his leg in desperation seems to have been able to throw himself out through the window, dropping four metres on to the ground.  It seems likely that in smashing through the window to escape he also severely cut his ear.   He managed to walk a short way before he collapsed and died through loss of blood.

[11]     Ms Gunn had managed to escape while you were stabbing Mr Grabner.   She ran outside and hid.  You went hunting for her.  Your first thought was that she was in a nearby bedroom occupied by her sister and flatmate, Miriama Kohu, and her

partner Wiki Ngarimu and their infant child.  Mr Ngarimu bravely tried to hold the door shut as you sought to force your way in.  You managed to get your arm inside the door and stabbed him deeply and with great force twice to the right side of his neck and upper chest area.  When you realised that Ms Gunn was not in the room you went searching for her outside the house.

[12]     You went to a neighbour’s house and asked if she had seen Ms Gunn.  The neighbour reports that you were calm, although you were grinding your teeth, and as you walked down the driveway you were hitting your knife against the side of the fence and making growling noises.   Eventually it seems that you identified where Ms Gunn was hiding.  A neighbour heard her say ‘you don’t want to do this’.  You stabbed her to death with two powerful blows with a large knife to her chest, and she died immediately through blood loss into her lungs.

[13]     You then lay down beside her and stabbed yourself deeply in the chest.   I have no doubt that you genuinely were trying to kill yourself.   One of the stab wounds penetrated your lung, and that  is how the Police  found  you.  While  not attacking the Police or actively resisting them, you were abusive to them, and indeed you remained in a murderous and abusive rage until subdued by very substantial doses of drugs.  Elements of that murderous and abusive rage continued the next day when you were interviewed in the hospital.

[14]     This was a terrible sequence of events with two bright lives brutally snuffed out, and another life, that of Mr Ngarimu, gravely affected.

[15]     I need to speak of the victims.   Ms Gunn had had three children.   She had held  good jobs.    She was at  the time  of her  death  attending  a  local course  in transportation and logistics.   She appears to have been a successful and popular student at that course.  She undoubtedly had a bright future ahead of her and a lot to contribute to her family and to the community.

[16]     Mr Grabner was a self employed plasterer.  He was a popular and successful person.  He did not know you at all.  The relationship that had developed between

him and Ms Gunn was clearly strong.   The death of two such good people is a terrible thing.

[17]     There was also  a third victim,  Mr Ngarimu.    He ultimately  survived  the injuries you inflicted on him.  The victim impact report that he has provided shows him to have been, as could be expected, very severely affected by what you did.  He feels guilt because he could not have done more to protect his sister in law, (as he regarded Ms Gunn), and Mr Grabner.  What has happened has affected his work, his relationships, and he says his life is still not the same and I have no doubt that that is so.  He has severe physical scarring.

[18]     The other victims, of course, are those in the families of the people who have died.  I have 12 victim impact reports.  I have read them all.  Each one of them is marked by grief and absolute sincerity.   I hope I will be forgiven for not going through them one by one in the way they deserve to be, but I just say generally that the death of Ms Gunn has left her grandparents and her parents most severely and permanently affected.  Their lives will never be the same.  Ms Gunn’s sisters have given  statements  as  has  Ms Gunn’s  niece.     I  do  make  particular  mention  of Ms Gunn’s sister, friend and flatmate’s statement, Miriama Kohu.   She was in the house when you attacked and killed her sister, and then gravely wounded her partner. Nothing will be the same for her again.

[19]     The Grabner family is equally affected.  I have a very moving report from his sister-in-law and statements from his brothers and parents.  Mr Grabner came from a very close family.   A family with, it seems, fortunately strong values and beliefs. They have now lost of their most treasured and important members, whether it is as a brother or a son.  Clearly his family, as with Ms Gunn’s, will never be the same.

[20]     So, I turn from the facts and their immediate impact, to the considerations that I must take into account in the sentencing process.  I have the benefit of careful and   full   submissions   from  both   the   Crown   and   your   counsel,   Mr Mabey. Mr Ronayne   for  the   Crown   ultimately   submits   that   a   minimum   period   of imprisonment should be imposed of 21-23 years.  Mr Mabey submits that 23 years

would be too high.  He submits that the right minimum period of imprisonment is

21 years.

[21]     I turn to the approach that I must adopt in sentencing you.  The Sentencing Act 2002 now sets out at ss 102-104 the considerations that a Court must apply. There is a presumption of life imprisonment for murder and a Court in sentencing a person convicted of murder to imprisonment for life must order that the offender serve a minimum term of imprisonment under that sentence.  Section 103 of the Act says that the minimum term of imprisonment ordered may not be less than 10 years. And that is what is sometimes called the statutory datum point, which applies to the ordinary range of murders.

[22]     Section 104 of the Act states that a Court must make an order of a higher minimum period of 17 years imprisonment in certain specific circumstances, unless it is satisfied that it would be manifestly unjust to do so.   It sets out ten particular circumstances.  In this case both the Crown and defence accept and agree that at least two of those ten factors mentioned in s 104 apply.  It is therefore not in issue that the minimum period of imprisonment  must  be 17 years or more.   In my view,  that position taken by counsel was entirely correct.  It enables me while recognising that there must be a minimum term of 17 years or more, to put s 104 to one side and go back to the general approach to sentencing.  That approach must be to consider the statutory datum point of ten years that applies to the ordinary range of murders, and then  consider  what  additional  culpability  arises  in  relation  to  these  particular murders.

[23]     So, I turn to consider the particular features of what happened.  In doing so I will consider the sentencing purposes and principles of ss 7 and 8 of the Sentencing Act, and in particular the aggravating and mitigating factors that must be taken into account under s 9 of that Act.  I will consider these factors against the backdrop of the  statutory  datum  point  as  part  of  the  process  of  deciding  what  additional culpability is displayed by your offending.

[24]     First, although it is not a matter that specifically arises in terms of s 9, or indeed s 104, I wish to refer to Mr Ronayne’s submission that the murders were

unprovoked.  This is a relevant submission, and it raises the issue of provocation in a more general sense than when it is raised as a defence before a jury to a murder count.  The conduct of the victim is a matter that can be taken into account under s 9(2)(c) as a mitigating circumstance.  Here, (and Mr Mabey has not suggested the contrary), there was nothing in the conduct of the victims that deserved any sort of violent  reaction on your part.   It  needs to be recorded that  these  murders were unprovoked.   Ms Gunn had done nothing that  in any ordinary moral framework could be seen as remotely deserving an angry or violent response on your part.  The break-up of treasured relationships is just a fact of life, a fact that people in our society live with.  And so your attacks on her and on Mr Grabner who had never met you, were entirely unprovoked and unjustified.

[25]     There was an unlawful entry, a home invasion in this case.   Ms Gunn and Mr Grabner were relaxing and the others in the house were going about their family business.    It  is  hard  to  imagine a  more violent  invasion of a home  than  being approached by stealth and then the sudden smashing down of the door.  So, this is an aggravating factor.

[26]     The attacks were brutal.   All knife attacks involve a substantial element of brutality by their nature.   But here the attack by you was rightly characterised by Mr Ronayne  as  a  frenzied  attack.    It  did  not  contain  any  particular  aspect  of deliberate cruelty or callousness, and might well not have met the requirement in s 104(e) of the Sentencing Act.  I do not categories this as a particular aggravating factor, and it also cannot be characterised as cruelty in terms of s 9(1)(e) of the Sentencing Act.

[27]     There was a definite element of premeditation in what you did.  I have set out the facts.  I consider that you were thinking about murdering Ms Gunn for some days before you did it.  Because you had made remarks to this end, I think that you were contemplating that if she was with another man that you would kill him too.   You planned the matter sufficiently to arm yourself, giving yourself backup weapons in the sense of having more than one knife.   You were careful to catch those in the house by surprise.  I do not have to decide whether this premeditation would have met  the  requirement  calculated  or  lengthy  planning  of  s 104(b),  although  I  am

inclined to think it would not have gone that far.  But as an aggravating factor under s 9(1), I take it into account.

[28]     There was an element of vulnerability of the victims in that they were relaxed in their home and in no position to defend themselves, although I would hesitate to call this a particular aggravating feature.

[29]     The matter that I particularly have to emphasise, and this goes beyond the orthodox aggravating factors in s 9, is that you took two lives and not one, and you almost took a third, although I accept that you did not intend to kill Mr Ngarimu and that you attacked him because he was in your way.

[30]     I am bound to consider the harm resulting from the offence.  I have already set  this out  when I  discussed  what  happened  to  specific  victims  and  the  wider families.   I should also record that I have not mentioned two other major victims, which are your two children.  They now have no mother.  It is a cruel aspect of this case that they will also have no father available to them on a daily basis as they grow up.  They have to live with the fact now that their father murdered their mother.

[31]     Taking into account the various factors it is clear that the impact of what you did and the aggravating factors make this murder at least twice as serious as that which might be seen as within the ordinary range of murders.   That  is without considering Mr Ngarimu’s position.   If you had been charged with the attack on Mr Ngarimu alone the starting point penalty is likely to have been in the 8-10 year imprisonment range.  The sentence in relation to Mr Ngarimu will be concurrent and I ultimately, in reaching the right sentence, have to apply what is known as the totality principle.   I look at the offending in the round in deciding the appropriate sentence.   But I must make an allowance for the attack on Mr Ngarimu and his suffering when I reach the ultimate starting point for sentence.

[32]     Putting  all  these  factors  together  the  starting  point  I  reach  is  one  of  a minimum term of 22 years’ imprisonment.

[33]     I  now, as it  is recommended  in  R  v  Howse  [2003] 3 NZLR 767 (CA), compare such a possible starting point with other comparable recent cases.   I have been very much assisted by Mr Mabey’s analysis of all recent comparable cases, and I agree with his submission that three recent sentence decisions are of particular relevance: R v Cui HC, Auckland CRI 2003-44-6006, 17 September 2004, Potter J, R v Ying (2004) 20 CRNZ 1078 Potter J and R v Doyle HC Rotorua, CRI-2005-070-

6451, 13 October 2006, Frater J.

[34]     In R v Cui there was a double murder.   The first person murdered was the object of Mr Cui’s affections, and the second an innocent friend.   There was an attempt to murder a third innocent friend.  The minimum sentence there was fixed by Potter J at 19 years.  I should note that the Court of Appeal and Frater J in R v Doyle have referred to that sentence as lenient.

[35]     In R v Ying, Mr Ying attacked two persons, one the object of his affections and the other that person’s partner.  He killed the partner in the bed, and later that day and with great cruelty killed the person he knew.  There, with two persons killed, the minimum period imposed was 20 years.  In that decision Potter J commented on the need in carrying out an exercise involving s 104, not to double count the features in s 104.  I have been conscious of that in my sentencing remarks.

[36]   In R v Doyle there were again two murders.    They arose out of methamphetamine transactions.   Although guns were used there there was some similarity in the degree of violence shown.  There a 21 year starting point was fixed.

[37]     I consider your case in its totality to be slightly more serious than R v Ying and R v Doyle.  That is because of the particular aggravating factors of the planning and the home invasion, and because of the very serious injury inflicted on a third person.  I do not consider it to be more serious than R v Cui, and I do regard that sentence as somewhat  lenient.   Thus,  I  consider  fixing  a  starting  point  here  of

22 years of imprisonment would be in parity with other recent sentences.

[38]     I now turn, consistent with the modern approach in sentencing, to consider whether  there  are  matters  relating  to  you  personally  that  are  to  regarded  as aggravating or mitigating.

[39]     There are no  aggravating matters relating to  you personally.    Turning to mitigating factors, I do not consider the plea of guilty to the grievous bodily harm charge to be relevant as that charge and the sentence for it has been subsumed into the overall sentencing process consistent with the application of the totality principle.

[40]     I do recognise as a mitigating factor that you feel some remorse for what you did.  I have no doubt that you regret it.  I have no doubt that you appreciate that you have taken an entirely innocent life in that of Mr Grabner.  Ms Gunn too, of course, was innocent, and I think  you do regret  her death.   However, I  agree  with the Crown’s description of your remorse as measured.   The pre-sentence report and indeed your comments in the witness box indicate a fatalistic acceptance by you of what you have done, as if there was a certain inevitability about your acts, arising from Ms Gunn’s decision to end you relationship.  I do not consider that you have fully grasped the moral implications of what you have done, and the damage you have done to those who knew and loved the people who have died.  I do not consider that you have shown appropriate remorse for what you did to Mr Ngarimu.   So, while recognising some remorse, the credit I can give you in respect to it is limited.

[41]     I do recognise that you have essentially a good record in terms of previous convictions.  Those convictions that you do have are entirely unrelated and are not connected to violence, and so I do give you some credit for that.

[42]     Taking all these matters into  account I consider that only a very modest reduction on the 22 year minimum term is warranted.

[43]     I consider Mr Reihana that the sentence that must be imposed on you on each count of murder is life imprisonment with a minimum non-parole period of 21 years.

[44]     So I impose a sentence on you of life imprisonment on each count with a minimum non-parole period of 21 years in respect of each count.   They are to be

concurrent sentences.  In respect of the grievous bodily harm count I sentence you to imprisonment for a term of eight years.  That term is also to be concurrent.

[45]     Stand down.

…………………………..

Asher J