R v Roper

[2013] NZHC 1687

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-009-001709 [2013] NZHC 1687

THE QUEEN

v

NIKKI DAVID ROPER

Hearing:                   3 July 2013

Counsel:                  P A Currie and M Zintl for Crown

S J Shamy for Prisoner

Sentencing:              3 July 2013

SENTENCING NOTES OF MILLER J

[1]    Mr Roper, you murdered Alexsis Tovizi on the night of 5 December 2010. After killing her you converted her car,  you stole her laptop, and  you used her bankcard on five occasions to empty her bank account.  These are crimes against her, her family and the community of which, like it or not, you form a part.  The day of reckoning has been a long time coming.  It was delayed by the earthquakes and by your own attempts to have evidence excluded.  But it has finally arrived.

The facts

[2]    I begin with the facts.  You had been in a relationship of sorts with Ms Tovizi. It  was  a  very  unhealthy  relationship,  characterised  by  violence,  jealousy  and

obsession on your part.

R v ROPER [2013] NZHC 1687 [3 July 2013]

[3]    The  sequence  of  events  matters  because  it  highlights  some  important aggravating features of your crime.  On 13 May 2009 you assaulted her.  For this you were sent to prison, from which you were released on 7 December 2009.   In preparation for that she obtained a temporary protection order against you, and that was made final on the 2nd of March 2010.

[4]    In October of that year, you saw her with her partner, Daniel Edwards, who is known as Razak, and became so enraged that you tried to strangle her.  This led to another short term of imprisonment.   You were released on 1 December 2010. Shortly before your release you boasted to another prisoner that you would be back in prison for “the big one” because you were going to kill her.

[5]    While  you  were in  prison  on  that  occasion, Ms  Tovizi  moved house and changed her phone number.  She planned to have Mr Edwards move in.  I want to record at this point the efforts to which her mother Cheryl went to keep Alexsis safe. Alexsis was an adult, but like many abused women she found it very difficult to bring a decisive end to the relationship.  Cheryl insisted on the change of address and phone numbers and she supported the relationship with Mr Edwards.  She even went so far as to threaten to have Tyson, Alexsis’s three year old son, removed should Alexsis see you.   I hope it will be some small consolation to you, Mrs Tovizi, to learn that in my opinion no mother could have done more than you did to keep your daughter safe.

[6]    Despite all of these precautions, Mr Roper, you made contact with Alexsis soon after your arrest.  She went along with it, thinking she was able to handle you. You met her on 3 December at her new address, and I accept that she let you into the house.

[7]    About 9.00 am the next day, 4 December, you had an argument with her there. You took her car keys as you left and dodged a cup that she threw at you.

[8]    That night Alexsis and her son Tyson stayed at her mother’s home.   On the same evening you waited outside her house for several hours, pacing up and down and consuming alcohol.

[9]    On the morning of 5 December Ms Tovizi and Tyson returned to the address. During the day she spoke on several occasions to family members and Mr Edwards. The last such call was made at 11.00 pm.  At some point in the day she let you in. At 11.02 pm you texted Mr Edwards boasting that you were with her.  But at some point  during  the  evening  you  seem  to  have  quarrelled.    There  was  evidence suggesting that she had told you that the relationship was over, and I think that is the mostly likely explanation for the murder.

[10]  You probably killed her in the lounge.  Despite the threats that you had made from prison, I am not sure that this was a premeditated act.  It is plausible that had all gone as you wished, you would not have harmed her.  But it was inevitable that you would attack her when she tried to end the relationship.   The killing itself was clinically done, and you went about it in a manner calculated to escape detection. You used a sleeper hold, which is capable of leaving no marks when  skilfully applied, then you placed her in Tyson’s bed, as if she had gone to sleep there and succumbed to some natural cause.  In fact you did leave a small mark on her neck from a necklace which you had pressed into the skin.  Seeing it, you removed the necklace in the hope that the significance of the mark would be missed.

[11]  At about 8.00 am on the morning of 6 December you left the house with Tyson, for whom you packed a bag of clothes.  You took Ms Tovizi’s EFTPOS card, cell phone, laptop and car, and you locked the doors to the house.

[12]  Later that morning you ran out of petrol and called a friend to tow you.  You promptly arranged to sell the laptop to this friend.   You dropped Tyson off at his great grandmother’s home, explaining this action by claiming that Ms Tovizi had “done a runner.”  Over the next four days you emptied her bank account using her EFTPOS card, taking a total of $543.  You did that for your own purposes, although you later claimed you had her authority and were buying things for Tyson.  You also returned the car to her family, an act which I think is itself attributable to a desire to assuage their suspicions.

[13]  Throughout this time you continued to lie assiduously to her family, variously telling them that she had gone to Auckland or to the West Coast and did not want to

be contacted.  You lied when they asked for keys to the house.  You sustained this deception for some time, clearly quite deliberately.  You obviously knew she would be discovered eventually.   I think that you hoped that any traces of what you had done to her would disappear with time.

[14]  In that you were very nearly successful.  Decomposition processes were well advanced by the time she was found on 9 December, after her mother arranged for the police to break in.  The three pathologists who gave evidence could not establish why she died.   They agreed that the immediate cause of death was pulmonary oedema, but not what caused that condition.  Strangulation is one possible cause and the obvious alternatives, heart disease or alcoholism, were ruled out.  There was a dispute among the pathologists about the mark on her neck, one of them suggesting it could be due to contact with woven fabric during decomposition.  The evidence which ties that mark to your actions is found in the necklace, which you took care to remove.  You were seen with it on 10 December, but it later vanished.  There was also evidence of bruising on her arm, suggesting some other violence.

[15]  In interview with the police you eventually claimed that you had held her head in a bucket of water at her request, to assist her to kill herself by drowning.  You did not advance that frankly absurd account at trial.  You did go to some effort to try to procure witnesses to perjure themselves, without success.

Victim impact statements

[16]  A number of victims have spoken today of Alexsis’s personal qualities and the impact of your crimes upon them.   I will not repeat what they have so eloquently said.  They spoke not only of their loss but also of how you made it worse by your callous attempts to hide your crime, your thefts after killing her, and what they understandably see as your attempts to blacken her character at trial.  Among other things, you tried to show that she might have died from chronic alcohol abuse.

[17]  I note in particular that Tyson exhibits signs of trauma.   For example, he experiences abnormal anxiety when separated from his grandmother, and suffers from  nightmares.    His  emotional  development  seems  to  have  been  somewhat

delayed.  One of the victim impact statements is a psychiatric report which details his behaviour.  Clearly he has witnessed the distress of the family both at the time of his mother’s death and in the long period leading up to the trial.  Some of the impact on him may be indirect, but I want to stress that it is nonetheless a consequence of what you did, and it is plainly severe.

[18]  I note too that at trial you advanced a claim that you would not have killed Alexsis because the two of you were in a committed relationship and planned to marry.  You may have believed that, but the evidence showed otherwise.  It was an abusive relationship that she was trying to end in the face of insistent manipulation on your part.  It leads me to make two observations.  The first is that it was a notable feature of the trial that you continue to harbour animosity toward her family.  You will need to deal with that, if you hope to ever be released.  The second is that your attitude obviously made the trial even more difficult for the family.

Presentence report

[19]  Now I will turn to the presentence report.  You declined to co-operate with the probation officer, inviting her to rely on your existing records, which are substantial. You are now 24.  You say that you were on the street at the age of eight, and in care by 12, and that you have no family support.   This succinct account appears to be accurate.  You were raised in a home in which violence was normal, and you were taken into care at the age of 12 in Australia, where your mother, a sex worker, had taken you.  You were later returned to New Zealand only to be separated from your brother.

[20]  You have what the probation officer describes as a vast offending history which began in Youth Court at the age of 14.  You have some 60 convictions as an adult, mostly for offences of dishonesty, and  you have been subjected to every available sentencing.  However, your history of violence is not extensive.  You have four convictions for assault, including two of male assaults female.

[21]  So far as Ms Tovizi’s death is concerned, you continue to deny guilt, saying that you were convicted on hearsay evidence and without a cause of death.  You are entitled to your perspective.  From mine, the prosecution case was overwhelming.

[22]  The probation officer notes that a psychological assessment in 2007 recorded that you had thoughts about killing a police officer and claimed to have stabbed a mate.  I do not know how much truth there is in that, but there is reliable evidence that  you  have  some  expertise  in  the  sleeper  hold,  which  you  were  taught  and practised in prison, and a propensity to use it or some other form of strangulation.  I have referred to the earlier offence against Ms Tovizi.  There was also evidence at trial that you have twice attacked others using the hold, and once sought permission to use it on a third person.

[23]  The probation officer considers your reoffending risk very high.  I agree with that assessment.  In particular, I think you are at risk of violent reoffending against women.   Your crimes against Ms Tovizi show that, but in addition your correspondence from prison, and your texts, demonstrated that you persistently try to manipulate the loyalties of any woman with whom you come into contact.

Your behaviour at and since trial

[24]  I want to record at this point that you exhibited some disturbing behaviour at trial, and since.  When the verdicts were delivered you attempted to leave the dock to attack someone associated with the Tovizi family.   Before sentencing the prison authorities found that you had written to a woman from prison, boasting that today you would attack the “pigs”, as you put it.   For that reason you are in restraints today.

[25]  Your behaviour in court will not lead to a longer sentence.  I do not mention it to criticise you for being upset about the trial and the sentence.  You are not required to be stoic about these things.  I mention it because it tends to confirm my opinion that you are at high risk of violent reoffending, and I want the Parole Board to know that.  What I have to say in these sentencing remarks will be reduced to writing, and it will follow you throughout your prison career and beyond.   It will affect the

intensity with which the Parole Board scrutinises you when you eventually seek parole, and should you ever be released, it may influence the supervision to which you will be subjected for the remainder of your life.

Sentencing principles

[26]  I  turn  to  the  sentence.    Murder  attracts  a  mandatory  life  sentence  and  a minimum period of imprisonment of not less than 10 years.  The minimum period must reflect the aggravating features of the overall offending, since no other sentence can be cumulative on life.   It must also reflect the need for accountability, denunciation, deterrence and community protection.   When setting the minimum period I must consider comparable cases, which suggest starting points of about 14

years before credit for mitigating factors.[1]   The Crown has suggested 13 to 14 and a

half years in total.  Mr Shamy asks for not more than 12.

[1] R v  Blackburn HC Christchurch CRI-2005-009-010441, 6 April 2006;        R v  B I  E M  HC Christchurch,CRI-2006-009-000065, 7 September 2006;   R v Rajamani HC Auckland CRI-

2005-004-001002, 28 March 2006;  R v Ryan HC Hamilton CRI-2005-019-9389, 26 July 2007 and R v Callaghan [2012] NZHC 596.

[27]  I think this case requires a minimum period of 14 and a half years, the top of that range.  I accept that the killing itself was not brutal or cruel, when compared to other murders.  However, the crime overall exhibits some very serious aggravating features which call for a sentence that emphasises denunciation and accountability. The main features are the history of abuse, the immediate breach of the protection order in resuming contact with Ms Tovizi as soon as you left the prison, your callous and sustained attempts to escape detection, the thefts of her property, and the impact of your behaviour on the surviving victims.   I reject Mr Shamy’s submission that

there should be no increase for your attempts to evade detection.[2]

[2] I note too that Callaghan, on which Mr Shamy particularly relied, involved a first offender with no prior history of violence against the victim.

[28]  Although I have mentioned that I find you a high risk of reoffending, I will not add to the minimum period on account of that.[3]   It is a long time already.  You will be a mature man by the time you first face the Parole Board, and you may have done

something to address your reoffending risk by that time.  The media often choose to

report  sentences  as  if  the  minimum  period  is  all  that  the  prisoner  must  serve. Prisoners themselves know that a life sentence is indefinite, and they understand the meaning of it.  You will come to understand, if you do not already, what it means for parole.  The Parole Board need not release you, ever.  To earn release, you will have to show you do not present a risk of reoffending.  So that will require you to confront the things that so far you have not been willing to do – your responsibility for Ms Tovizi’s death, the impact on the family.

[3] R v Bracken [2012] NZHC 3158.

[29]  There are no mitigating factors.  In the cases to which I have been referred the offender typically pleaded guilty and got a substantial discount for it.  You exercised your right to go to trial, so you get no discount.   I have referred to your very unfortunate upbringing, but I will not extend leniency on account of that.  The time for leniency has passed.   You were an adult.   You had been given plenty of opportunity and encouragement to modify your behaviour toward Ms Tovizi.  You killed her despite a protection order and despite previous imprisonment.

Sentence

[30] Mr Roper, for the murder of Alexsis Tovizi you are sentenced to life imprisonment;  your minimum period is 14 and a half years.

[31]  On the other charges  you  will  serve concurrent  sentences  of nine months imprisonment.

[32]  You may stand down.

Miller J

Solicitors:

Crown Solicitor’s Office, Christchurch for Crown