R v Robertson

[2015] NZHC 1849

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-044-2080 [2015] NZHC 1849

THE QUEEN

v

TONY DOUGLAS ROBERTSON

Charges:

Plea:

Murder; Sexual violation by rape

Not Guilty

Counsel:

B H Dickey, M R Walker and M J Hammer for Crown
C B Wilkinson-Smith and K P Brosnahan for Prisoner

Sentenced:

6 August 2015

SENTENCING NOTES OF BREWER J

Solicitors/Counsel:          Meredith Connell (Auckland) for Crown

Chris Wilkinson-Smith and Kevin Brosnahan (Auckland) for Prisoner

R v ROBERTSON [2015] NZHC 1849 [6 August 2015]

Introduction

[1]      Mr Robertson, I have to sentence you on your convictions for raping and murdering Mrs Gotingco.  The maximum penalty for murder is life imprisonment. The maximum finite sentence for rape is 20 years’ imprisonment, and in your case I have to consider preventive detention.

[2]      It is important to realise that the sentences I will impose on you are not intended to somehow compensate Mrs Gotingco’s family for what you did to her. Nothing  that  I  can  do  could  achieve  that.   You  have  heard  this  morning  from members of Mrs Gotingco’s family through their victim impact statements.   Only time and their love for each other will achieve any healing for the family.

[3]      My task in sentencing you is to respond as the law requires and on behalf of the community to what the jury found you to have done.  As a Judge, I will do that clinically and without emotion.

Background facts

[4]      The facts of your case were established in evidence at the trial.  I will refer to them only briefly.

[5]      On the evening of 24 May 2014, Mrs Gotingco was walking home, having taken a bus from work.  You were driving in the area at that time.  The Crown’s case was that you were looking for a female to abduct, rape and murder. You came across Mrs Gotingco, a small, slightly built woman who was crossing the road.  You took advantage of the opportunity and deliberately ran her down.

[6]      Mr Wilkinson-Smith has just made it clear that you do not accept that there was  anything  premeditated  about  what  happened.    The  running  down  was  an accident.    Mr Wilkinson-Smith,  both  today  and  in  his  written  submissions,  has repeated the points which go to accident and which he put to the jury.  By themselves they are persuasive.   But, having heard all of the evidence, I accept the Crown’s theory on these points.  Without going into detail, my reason for doing so is that the

way you acted after running down Mrs Gotingco is entirely consistent with the

Crown’s theory and the reliable evidence, and inconsistent with mere accident.

[7]      Mrs  Gotingco  was  badly  hurt,  to  the  extent  that,  without  treatment,  her injuries were barely survivable.  You did not seek treatment.  You put her in your car and drove to your garage. You raped her in the back of your car, despite her injuries. You strangled her with  your hand, I infer to subdue her.   After  you had raped Mrs Gotingco you killed her with a knife.  This was so she could not identify you. You stabbed her many times before cutting her throat.  Mrs Gotingco was still alive at that time, but, as the pathologist said, she soon died from the bleeding.

[8]      The next morning, after your curfew was over, you took Mrs Gotingco’s body to a nearby cemetery and hid it in the bush.

Murder

[9]     Mr Robertson, on the charge of murder the sentence can only be life imprisonment.  The issue is how long should your minimum period of imprisonment be.  I emphasise that life imprisonment means just that.  You will spend the rest of your life in prison unless and until the Parole Board concludes that you can be released safely into the community.   All that a minimum period of imprisonment does is delay the start of the Parole Board’s consideration of your case.

[10]     Your minimum period of imprisonment must be at least 17 years.   This is because the murder was especially brutal and callous; it was committed in the course of another serious offence, the rape, and it was committed, at least in part, to avoid detection.

[11]     The Crown seeks a minimum period of imprisonment in the range of 21 to

23 years’  imprisonment.     Your  lawyer  submits  that  the  minimum  period  of

imprisonment, if there is to be one, should be 18 years.

[12]     I have looked at a number of cases involving rape and murder where the levels of violence and brutality were similar to yours.   I will not go through them

with you but I will record them in the written notes of this sentencing.1   I will adopt a starting point of 23 years for your minimum period of imprisonment.  This takes into account the rape as well as the murder since the two are part of the same incident.  In adopting this starting point, I place particular weight on the fact that the rape was of a severely injured woman who must have been suffering greatly.   It was a bestial action and it was committed with the intention that your victim would not survive.

[13]     I must now look at your personal circumstances to see whether the minimum period of imprisonment should be adjusted up or down.  There is nothing personal to you which would reduce the period.  I accept that you have mental health problems which make you impulsive and quick to anger.  You find it much more difficult to control your actions than would a normal person.   But that is insignificant beside your actions and goes also to the ongoing danger you present.  I accept also that you were using drugs in the period when you raped and murdered Mrs Gotingco.  But, on the evidence  I heard that  was  mostly the use of marijuana,  although  I think  it reasonably possible on your evidence that there was some use of methamphetamine also.  No matter, it cannot excuse what you did.

[14]     The real question for me is whether your history of criminal offending should increase the minimum period of imprisonment.  You have a number of convictions for violence commencing in 2003.

[15]     In 2006 you were sentenced to seven years six months’ imprisonment for abducting a young girl for sex and indecently assaulting her.  There are significant similarities with the present offending. You chose a vulnerable victim at random, got her into your car and at once drove to a secluded place where you sexually assaulted

her.   It can be inferred that it was only the inspired hunch of a police officer who

1      Bell  v  R  CA80/03,  7  August  2003;  Howse  v  R  [2003] 3 NZLR 767 (CA); R  v  Burton HC Wellington CRI-2007-085-736, 3 April 2007; Reid v R [2009] NZCA 281; R v McLaughlin [2013] NZHC 2625; Wallace v  R  [2010] NZCA 46; R  v  McDonald [2014]  NZHC  2054; R v Cameron HC Christchurch CRI-2008-009-6389, 24 August 2009; Cameron v  R  [2010] NZCA 411; R v Waihape HC Christchurch CRI-2005-009-14252, 17 August 2006; R v Ellis HC Auckland CRI-2010-044-4912, 7 December 2011; R v Hotene HC Auckland S23/00, 9 October

2000; R v Weatherston HC Christchurch CRI-2008-012-137, 15 September 2009; R v C [2003] 1

NZLR 30 (CA); R v Vincent [2007] NZCA 238; Stoneham v R [2012] NZCA 404; Jenkins v R [2015] NZCA 131; R v Alder CA430/01, 25 June 2002 (Mr Wilkinson-Smith put particular emphasis on this case because of the factual similarities. But, it was decided before s 104 was enacted, it was a Solicitor-General’s appeal, the prisoner had no previous convictions and he pleaded guilty to the murder and sexual assaults on the first day of trial).

interrupted you that nothing more serious happened.   At the time, you were only

18 years old and the reports of the mental health experts were divided as to your risk of further offending.   You were sentenced to a total of eight years’ imprisonment (you attacked a guard while in prison) and the Parole Board required you to serve the entire length of that sentence.  That was because you were assessed as having a real risk of reoffending.

[16]     You were released when you could no longer be detained, but subject to strict conditions including the wearing of a GPS monitor.  The Department of Corrections sought, and obtained, an extended supervision order to enable you to be kept under some form of control for the maximum period of 10 years.   This offending took place within months of you being released.

[17]     I have decided that this background requires an uplift to the minimum period of imprisonment of one year.  It is not a big uplift, but one of the principles which binds me is the totality principle.  That is to say, I have to stand back and look at your case as a whole and against other cases.   A total minimum period of imprisonment of 24 years is, I think, as high as the law justifies me in going.

Rape

[18]     I have to impose a sentence on the rape conviction, even though the sentence cannot add to the sentence of life imprisonment on the murder conviction.   I am required to impose a sentence of preventive detention if I am satisfied that you would be likely to commit another qualifying offence if you were released at the expiry date of any finite sentence I might impose.  Your history, and the reports I have  received,  make  it  very plain  that  you  would  be  likely to  commit  another qualifying offence no matter how long any finite sentence might be.

[19]     The rape itself is at the highest end of the spectrum given the running down of Mrs Gotingco, her abduction and the terrible injuries she had at the time of the rape.

[20]     I am satisfied that a sentence of preventive detention is appropriate and I

intend to impose a minimum period of imprisonment of 10 years for this charge.

Sentence

[21]     Mr Robertson, will you stand please.

[22]     On the charge of murder, you are sentenced to life imprisonment with a minimum period of imprisonment of 24 years.

[23]     On the charge of rape,  you are sentenced to preventive detention with a minimum period of imprisonment of 10 years.

[24]     You may stand down.

Brewer J