R v Rogers HC Auckland CRI 2006-092-0004995

[2008] NZHC 2259

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-092-0004995

THE QUEEN

v

COLIN WILLIAM ROGERS

Appearances: J Shaw for the Crown

S Tait for the Prisoner

Sentence:       8 April 2008

SENTENCING NOTES OF PRIESTLEY J

Solicitors:

J Shaw, Meredith Connell & Co, P O Box 2213, Auckland

S Tait,P O Box 76538, Manukau City

R V ROGERS HC AK CRI 2006-092-0004995  8 April 2008

Offences, Trial, General Introduction

[1]      On 16 November 2007 a jury found you guilty of the murder of Angela Tahana.  Murder, as you know, carries the mandatory penalty of life imprisonment. The major issue today is the length of the minimum term of imprisonment I should impose.

[2]      Just  before  the  trial  began  you  pleaded  guilty to  two  charges  of  assault against  two  special  needs  adults,  Mr  Schutt  and  Mr  Moetara,  who  both  gave evidence for the Crown at the trial.  The maximum penalty for those assaults is one of one year’s imprisonment.

[3]      The homicide occurred in Ms Tahana’s house at Mangere.   She and Mr Schutt had been drinking there in the garage for some time.   You arrived.   Other family members were also present, as was Mr Moetara.   It is clear a considerable volume of alcohol had been consumed by both the deceased and by Mr Schutt.  You too had alcohol in your blood when you were arrested some time later but it is unclear what it would have been at the time of the offence.

[4]      Your victim was aged 34.  You had been living with her for approximately three weeks.  One of the witnesses observed that you had a knife in your sock.  There had been a degree of verbal and physical conflict from her towards you.   Your behaviour  became  threatening.    Your  assaults  on  Mr  Schutt  and  Mr  Moetara occurred.  You were, on the evidence, the last person seen at the victim’s home while she was alive, chasing her up the stairs in the garage into the house.  Her body was found lying prone across the hallway with 10 stab wounds in her neck, upper back, and scalp.   The knife was left sticking into her back.  You left the house and tried to evade detection.  You were eventually run to earth some kilometres away by a police dog team.  The Crown case against you relied on circumstantial evidence which was strong.  There were no direct witnesses of the stabbing.  The pathological evidence suggests that some of the stab wounds were inflicted whilst your victim was lying on the ground.  In all probability it was the second of the 10 stabs which proved fatal, and in a matter of seconds.

[5]      You did not give evidence at your trial.  The defence, as I made clear to the jury, was that the evidence was not sufficiently strong to prove murder beyond reasonable doubt.  In particular your counsel cross-examined both Mr Schutt and Mr Moetara along the lines that the killer was Mr Schutt, a special needs person who was in the habit of drinking regularly with your victim, his possible motive being resentment of your relationship with her.  These allegations were denied by both Mr Schutt and Mr Moetara.   A further plank of your defence was their general unreliability, given their somewhat limited intellectual capacity.

[6]      There have been some difficulties in the preparation of your probation report, there obviously being some history between you and the probation officer.  You first declined to be interviewed.  Subsequently you were interviewed but in a somewhat guarded way maintained that you were not guilty.  It is with some relief that I hear from your counsel today that you now accept responsibility for your behaviour and accept your responsibility for your victim’s death.  According to Mr Tait you now accept that you were her killer although you point out that alcohol was a factor at the time.  I think this was a sensible concession on your part, Mr Rogers, because the suggestion that you are not responsible for the homicide and have been wrongly convicted was, as you well know, fanciful.  Were you not the perpetrator you would clearly, despite any intoxication, have remained in the house either to defend Angela Tahana or to get help for her.  You would not have absented yourself from the scene, nor would you have conducted the police interview in the somewhat defensive and fencing manner that you did.

Victim Impact

[7]      I turn now to the victim impact statements.   The Crown has produced six victim impact statements; from the deceased’s sister, Ms Rawiri, who gave forceful evidence  at  your  trial;  from  the  deceased’s  teenaged  daughter Violet  who  gave evidence from behind a screen; from another daughter; from Messrs Schutt and Moetara; and finally today from the eldest sister Claire Tahana.  Those I have read and I thank the members of the deceased’s whanau for the time they have put into preparing those statements which I appreciate would have been difficult for some of

you to do.  The four family members speak of the gap which has been left in their family and the ongoing effects of Angela’s death on them.   There is mention of hatred towards you.  In Violet’s case her life has changed considerably.  Counselling did not help.   Her school performance has deteriorated because of her inability to concentrate.  She feels sad.  Mr Schutt, who is aged 39 and is on an invalid’s benefit, described the deceased as his best friend. The assault on him required the removal of two teeth.   He found the trial a particularly upsetting experience, unsurprisingly given the questions put to him in cross-examination.  As is inevitably the case, for all this murder has caused pain, anguish, and sadness.

[8]      I need to say something briefly about your personal circumstances.  You are aged 35.   At the time of your arrest you were on a sickness benefit.   You are of Maori descent.  You have a 19 year old daughter from a previous relationship.  You left school in the third form.   There are, so you say and I accept this, no past problems you have had with either alcohol or with drug addiction.

[9]      At the time of the offending you had been back in the community for about six weeks having served approximately 18 months imprisonment for sexual intercourse with a female between the ages of 12 and 16.  You had, as I have already said, been living with the victim and her family for approximately three weeks.

[10]     I need for various reasons to refer to your previous convictions.  These, as I am sure you will agree Mr Rogers, are nothing to be proud of.   You have approximately 90 convictions incurred over the course of your teenaged and adult life.  Twenty-six of those were for breaching various conditions of bail, or parole, or escaping.  Some 22 are driving related.  Twenty-two are violence related, of which approximately 11 are involving male assaulting female.

[11]     Section 103 requires me to give some consideration, in the imposition of a minimum term, to aggravating and mitigating factors.  So far as your offending was concerned there was of course the use of lethal violence.  There has been the harm which has flowed, not only to your victim who lost her life, but also to her whanau. There  was  to  some  extent  her  vulnerability.     There  is  also,  of  course,  the vulnerability of the two disabled men whom you assaulted.  It is also a significant

aggravating factor, in my judgment, that you committed this crime whilst you were subject to release conditions and there are also you previous convictions to which I have referred.

[12]     The Crown accepts, sensibly, that this is not a s 104 situation.  Mr Shaw, in his submissions today, has urged a minimum term of imprisonment of 13 years.  He accepts, when asked by the Bench, that a band of 11 to 13 years would be a band which the Crown would not contest.  Mr Tait, who has done a good job for you Mr Rogers at all stages of this trial and the sentencing process, accepts that there should be some modest uplift beyond 10 years but not too much in his particular view.  He was not in a position to give me a finite figure, understandably so perhaps.

The Sentence

[13]     The only issue here is the appropriate minimum term of imprisonment to impose and in particular whether this should be more than the 10 years stipulated in s 103(2).   The Crown does not contend, and rightly so as I have said, that s 104 applies to this particular murder.

[14]     A term of life imprisonment is mandated by s 102(1).  There is no suggestion by anyone that such a sentence would be manifestly unjust, so the proviso does not apply.

[15]     In terms of s 103(2) the minimum term must be not less than 10 years.   It must be a figure necessary to satisfy the four stipulated s 103(2) purposes of holding you accountable for the harm done to your victim and to the community, denunciation, deterrence of you and others, and protecting the community from you.

[16]     Some  alertness  is  required  when  considering  judgments  prior  to  the amendment to s 103.   Nonetheless there is no radical divergence between the two categories.  The s 103(2)(d) purpose of protecting the community is the significantly new factor to which I must give some weight here, given both your criminal record and the fact that you committed this murder whilst subject to imposed release conditions.

[17]     In R v Howse [2003] 3 NZLR 767 the Court of Appeal noted that the purpose of the minimum term, if increased, was to achieve greater punishment, denunciation and deterrence than would be achieved by the normal 10 year period (at [58]). A suggested first step (at [64]) was to compare the offence and the datum (10 years) and then turn to individual comparators as a check to ensure consistency with other cases ([63]).

[18]     In  Walsh  v  R  (CA  281/04,  19  May  2005),  where  the  sentencing  judge, although limited to the jurisdiction under the unamended s 103 nonetheless applied the criteria of the amendment, the Court of Appeal in helpful obiter stressed that the s 103(2) purposes (four in number) must be the focus of the Court ([25]).  Sections 8 and 9 aggravating and mitigating factors are applicable to the extent that they are relevant to the specified purposes ([26]).   The Court rightly pointed out that the protection of the community purpose might in some cases limit otherwise relevant mitigating factors ([28]).

[19]     Matters relevant in this assessment today,  proved  at  your trial,  were the selection of a knife and its apparent secretion in your sock and the fact that you stabbed the deceased 10 times, some of the knife wounds penetrating to a considerable depth.   That it was in all probability the second inflicted stab which killed the deceased, does not in my judgment detract from the number of wounds inflicted.   There was also the fact that this murder occurred within the deceased’s home where she had an entitlement to sanctuary, you living there with her.  There is also a degree of mild violence by you prior to the murder against Messrs Schutt and Moetara.

[20]    Although the Crown, in its written submissions, describes your previous offending involving assaults and violence as being “comparatively minor and not involving violence to anything more than a moderate degree” the fact remains you have a number of previous assault convictions.  Indeed your convictions, as I have stated, include 11 of male assaulting female.

[21]     I give some slight weight to the fact that your victim was drunk and was being verbally abusive to you.  It was sensible of your counsel not even to raise at

trial provocation (impossible so to do in a situation where the apparent defence was the homicide was possibly committed by somebody else).   But the days are long past, Mr Rogers, where verbal abuse by a female can be given serious weight as a mitigating factor in a violent assault by a male.  It has but slight weight here and I agree with Mr Shaw’s submissions in that regard.  You were, however, all drunk.

[22]     Looking at comparable cases, which I have discussed with counsel, I consider the facts of your case place it midway between R v Rukuata (HC AK CRI 2005-092-

013891 29 May 2007 Cooper J) and R v Rajamani (HC AK CRI 2005-004-001002,

28 March 2006, Venning J).   In the former case a 10 year minimum term was imposed.   In the latter, 12 years.   The former involved an argument with stabs inflicted by the prisoner to the victim’s head and back of neck.  That case, as Mr Tait has observed, is very similar to the facts in this case, although not totally similar. Two young children were present in the house but did not witness the attack.  There was a previous assault on the deceased approximately five months before her death. The latter case involved the murder of the prisoner’s wife.  There was an assault with bricks and then, when the deceased tried to get help, the prisoner slit her throat.

[23]     Focusing on the 10 year datum, s 103(2) factors, and comparable cases which have been cited to me by counsel (including the two to which I have just referred) there must be a degree of accountability for the harm done to your victim.  I do not consider that denunciation and deterrence require, in this case, any additional uplift although there is some force in Mr Shaw’s observation that there must be a degree of denunciation and deterrence in homicides flowing from domestic violence.  But your violent record, and in particular the fact that this crime was committed whilst you were on release conditions, bring, to a modest extent, s 103(2)(d) into play.

[24]     At this stage Mr Rogers I will ask you to stand up please.

[25]     In my judgment the appropriate minimum term to impose on you is one of 11 years imprisonment.  Accordingly on the charge of murder you are sentenced to life imprisonment and are ordered to serve a minimum term of imprisonment of 11 years.

[26]     On the two assaults, these are relatively low on the scale in respect of which there is a one year maximum.  On the summary of facts your violence against Mr Schutt involved the infliction of more punches than against Mr Moetara and dental damage.  However, in respect of both you not only punched them but then kicked them when they were down.  As Mr Tait rightly points out you have pleaded guilty and are entitled to a modest discount for what that is worth.   The assault on Mr Schutt would normally attract a four to five month sentence.  That on Mr Moetara possibly three months, given your previous record.   On the count relating to Mr Schutt I sentence you to three months imprisonment.  On the count relating to Mr Moetara I sentence you to two months imprisonment.  Those terms are to be served concurrently with each other and with the life term I have imposed.

[27]     So that is it Mr Rogers.  You are sentenced to life imprisonment and will not be eligible for parole until you have served 11 years.  Thank you.  Take him down.

...................................… Priestley J