R v Roling

[2020] NZHC 2725

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-063-2075

[2020] NZHC 2725

THE QUEEN

v

NICHOLAS MARTIN ROLING

Counsel:	A L McConachy and G Banuelos for Crown A M M Schulze for Defendant
Sentenced:	16 October 2020
Charge:	Murder
Plea:	Guilty

SENTENCING NOTES OF BREWER J

Solicitors:

Gordon Pilditch (Rotorua) for Crown

R v ROLING [2020] NZHC 2725 [16 October 2020]

Introduction

[1]    Mr Roling, at the age of 54, you appear today for sentencing having pleaded guilty to the murder of Mr Ngatai. You shot Mr Ngatai in the back, after hiding near his house, waiting for him to return home.

[2]    Your crime has had a devastating effect on Mr Ngatai’s whanau and friends. I have read statements from 16 of the whanau expressing their grief and loss. Mr Ngatai was a much-loved and much-needed son, partner, father, brother, nephew, cousin and friend.

[3]    In sentencing you today, I cannot give back to the whanau what you have taken from them. That would be impossible. Instead, my job is to respond to your offending as the law requires.

[4]    The sentence for murder is life imprisonment. Life imprisonment means what it says. You will spend the rest of your life in prison unless you can satisfy the Parole Board, after many years, that you are safe to be released back into the community. Even if that happens, you will still be subject to your sentence of life imprisonment. If, at some time in the future, you are released on parole, any further offending or breach of the terms of your parole would see you brought back to prison to continue serving your life sentence.

[5]    The only question I have to decide today is your minimum period of imprisonment. The law requires a Judge, in a case of murder, to set a minimum period of imprisonment. That is not the sentence. The sentence is life imprisonment. The minimum period of imprisonment is simply the period during which the Parole Board does not have to assess you for possible release on parole.

[6]    In your case, the starting point is 10 years’ minimum non parole. The Crown submits that this should be increased a little to 12 years. Your  lawyer submits that  11 years would be more appropriate. It probably does not matter much because ultimately it will be for the Parole Board to decide when, if ever, you should be released on parole. However, that is the decision I now need to consider.

The offending

[7]    I will start by going briefly through the facts as they are set out in the summary of facts to which you pleaded guilty.

[8]    You were in an on-again, off-again relationship with Ms Brown for around three years. The two of you separated in 2017 and Ms Brown started a new relationship with Mr Ngatai.

[9]    You resented Ms Brown for ending your relationship and as a result you did not like Mr Ngatai.

[10]   After the separation, you lived a transient lifestyle, moving from town to town. Over this time, you maintained some contact with Ms Brown and her son, Mr Walsh.

[11]   From about 16 June 2019, you had returned to Rotorua and you were staying at Mr Walsh’s house. Mr Ngatai and Ms Brown lived nearby.

[12]   On 26 June 2019, you left Mr Walsh’s house and walked to where Mr Ngatai and Ms Brown were living. In your letter to me, you say that that was prompted by an encounter you had had with Mr Ngatai. But you went to where they were and you took with you a sawn off, side by side, 12 gauge shotgun. When you came to the address, you walked down the side of the neighbouring property and lay in wait behind a large hedged fence. You waited there for between one hour and one-and-a-half hours, with the shotgun.

[13]At some stage you loaded two rounds into the shotgun.

[14]   At about 7.40 pm that evening, Mr Ngatai and Ms Brown arrived home having done their grocery shopping. Ms Brown went into the house first to get some keys so she could move another vehicle which was parked outside. When she walked back with the car keys, she passed Mr Ngatai by the front door as he was about to go inside with the groceries.

[15]   Suddenly, you stepped out from the fence, raised the shotgun, and fired one round into Mr Ngatai’s back.

[16]   Ms Brown spun around and saw Mr Ngatai start to stagger. She looked to where the gunshot had come from and saw you standing on the other side of the hedged fence. Ms Brown says she heard you say, “that’ll teach him”.

[17]   Ms Brown did her best for Mr Ngatai, but he died at the scene as a result of the gunshot wound.

[18]   You hid the shotgun in the hedge near where you had been waiting. It still had a live round in one of the barrels. You returned to Mr Walsh’s house.

[19]   Ms Brown anticipated you would return to Mr Walsh’s address and she had the presence of mind to telephone Mr Walsh to warn him. When you returned, Mr Walsh asked you what you had done and you replied that you had shot Mr Ngatai. You tried to push past Mr Walsh to get into the house and the two of you struggled. Mr Walsh got you down on the ground and he held you until the police arrived.

Minimum period of imprisonment

[20]   Mr Roling, a murder always involves the intentional or reckless killing of a human being. Very often weapons are used. Sometimes the murder occurs on the spur of the moment. Sometimes the murder is planned. In your case, Mr Roling, I consider the main aggravating feature to be that you planned the killing of Mr Ngatai. That is to say, you went to his house intending to shoot him. The other factor is that he was very vulnerable. He was unarmed. You ambushed him and shot him in the back.

[21]   Against that, you eventually pleaded guilty, you have expressed remorse and you have been diagnosed with a psychiatric disorder. However, I do not place much weight on those factors. The evidence against you was very strong and it is easy to state remorse. The letter you gave me today seems sincere and shows you have some limited insight into what you have done. Your psychiatric disorder is not said by the psychiatrist to be causative of your offending, or even partly causative of your offending. Nevertheless, I will give you some small credit for these factors and for

the fact that you do not have a history of serious violence having reached the age of 54 years.

[22]   The lawyers have referred me to a number of cases where minimum periods of imprisonment have been set by the courts. I will not discuss them with you but I will list them in the written record of these sentencing notes.1 Without the mitigating features I would set a minimum period of imprisonment for you of 11 years and six months. I reduce that to 11 years.

Sentence

[23]   Mr Roling, for the murder of Jeremy Russel Ngatai, I sentence you to life imprisonment. I order that you serve a minimum period of imprisonment of 11 years.

[24]You may stand down.

Brewer J

1      R v Paewhenua [2018] NZHC 301; R v Douthett [2019] NZHC 2214; R v Meads HC Hamilton CRI-2019-019-8828, 31 March 2011; R v Singh [2015] NZHC 2369; R v Herkt [2016] NZHC 284; R v Te Poono [2020] NZHC 1188.