R v Savage
[2020] NZHC 2553
•29 September 2020
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2018-087-001127
[2020] NZHC 2553
THE QUEEN v
TEWI SAVAGE
Hearing: 29 September 2020 Counsel:
A J Pollett for Crown
S Tait & J M Hudson for Defendant
Sentence:
29 September 2020
SENTENCE OF PAUL DAVISON J
Solicitors:
Crown Solicitor, Tauranga
R v TEWI SAVAGE [2020] NZHC 2553 [29 September 2020]
Introduction
[1] Mr Tewi Savage, at 35 years of age, you appear today for sentencing having been found guilty of murdering your two year-old daughter, Arnica. On 1 July 2018, you took her out into the waters of the Rangitaiki River, let her go, and caused her to drown and die.
[2] In sentencing you, I will first summarise the background and circumstances of your offending and the contents of the victim impact statements, before turning to address your personal circumstances. I will then refer to the purposes and principles of sentencing and explain the approach I am required to take in sentencing you for the offence of murder. I will then summarise the submissions made by the Crown and by your counsel as regards the sentence that they submit should be imposed. Finally, I will outline the sentence I will impose. As part of this, I shall determine whether it would be manifestly unjust to impose a sentence of life imprisonment with a minimum period of imprisonment of at least 17 years without parole.
The whānau in Court
[3] However, before I proceed further it is appropriate that I acknowledge the presence in Court today of members of your whānau. Arnica was a loved and treasured member of your whānau, and her death has had a traumatic and indelible effect on their lives.
[4] I have carefully read each of the victim impact statements which have been written and submitted to the Court. Those who have prepared them, including Ms Moses, have endeavoured to express the deep sense of loss that they feel as a result of the death of a beautiful child whose young life, full of promise, lay ahead of her. As I am sure all you members of Mr Savage’s whānau present in Court well understand, the pain, sense of loss and sadness (te mamae, te pōuri,) that you are experiencing cannot and will never be allieviated by the process of the Court imposing sentence on Mr Savage today. It is clear that Arnica’s death is a loss not only for her immediate family, but also for the extended Savage whānau, and the Court extends its sincere sympathy to each of you for your loss.
[5] In the course of this sentencing, I will be reviewing and referring to the circumstances in which Arnica was murdered. While some of these details will be distressing, it is necessary that the circumstances surrounding the offence of murder and of Arnica’s death are described in open court as part of the process by which the reasons for the sentence imposed are set out and explained.
Facts of the offending
[6]Mr Savage, I now turn to the background and circumstances of your offending.
[7] Arnica Savage was just two years old in July 2018. She was the second youngest of the five children of you and your former partner, Santana Moses. You and Ms Moses had been in a relationship for some 15 years, until you had separated shortly prior to Arnica’s death.
[8] Following your separation, you lived at Te Mahoe Village, in a house adjacent to your parents’ house. At that time Ms Moses was residing approximately 30 kilometres away in Whakatāne. Despite your separation, you and Ms Moses had nevertheless maintained a cordial relationship and shared custody of your five children, with your mother assisting with the care of the children as required.
[9] Prior to your separation, Ms Moses had started a new relationship with a man which had been going for some time beforehand, and who had been a close friend of yours. Despite your separation you continued to hold out hope of a reconciliation.
[10] Around a fortnight before Arnica’s death, Ms Moses told your mother that she was not going to return to live with you, and a day or so before the weekend when Arnica died, you told your parents that Ms Moses had started a new relationship with somebody else.
[11] On Friday 29 June 2018, you stayed the night with Ms Moses in Whakatāne so that you could help care for the children, particularly with Arnica as she had recently been unwell and unsettled. During the evening of Friday 29 June, your friend with whom Ms Moses had recently commenced a relationship also arrived at her house. The three of you then sat and discussed the situation and discussed the relationship
which had been established between Ms Moses and your friend and you led them in a karakia, and gave their relationship your blessing.
[12] The following morning, you took two of your sons with you back to Te Mahoe to attend their kapahaka practise at the Te Mahoe marae. Ms Moses followed you in her car with Arnica and your youngest child. After the kapahaka practise had finished, there was a service with singing and a karakia. At the conclusion of the service, you stood up and addressed the gathering, saying that Ms Moses was the mother of your five children and that you had to take her back to her own people. After the service had concluded, Ms Moses went to your house to get some clothes for the children before returning to Whakatāne, taking Arnica and the two youngest boys with her. Before she departed for Whakatāne she arranged with you to bring the children back to you around lunch time the following day.
[13] That Saturday evening, you spoke to your mother and father about the separation. You told them that you were okay with the separation and that you had given Ms Moses your blessing for her new relationship. Your father remonstrated with you about your attitude to the separation saying, to use his words, that you were “fucked in the head” to be thinking like that at all. Shortly after your father’s comments, you left your parents’ house and returned back to your own home where two of your sons were staying with you. Your mother followed to help you get the boys settled for bed, and then stayed to sleep there the night. During the course of that night, you woke about five times, and your mother said you seemed very disturbed. When you woke you would loudly sing one of the waiata songs of the Ringatū faith you had learned as a child, and said “they are coming to get me”. When this happened, your mother would settle you down, and you would fall asleep again.
[14] The following morning, on Sunday 1 July 2018, you appeared bright and told your mother that you had slept well. Later in the day around lunchtime, and before 1.00pm, Ms Moses arrived with the other children, including Arnica. When your parents returned from their morning walk they joined you and Ms Moses in the lounge of your house. After a karakia, you talked with Ms Moses and your mother about the children, where they were going to live, and how co-parenting arrangements for the children would work. During this meeting you initially appeared to be calm and
composed. You spoke to the children, saying that both you and their mother loved them. However, while talking to the children your voice became increasingly stern, causing Ms Moses to become concerned, and she told you that she was worried about your mental health if you were going to have the care of the children. You said that you were okay, and the children were then told to go outside and play.
[15] After the children had left the house the four adults, you and Ms Moses and your parents, continued the discussion. You were seated beside Ms Moses and at one point you were holding her hand. Referring to this part of the meeting your mother said in her evidence that it appeared to her that there was a battle underway in your mind between the devil and God for your soul.
[16] When this discussion in the house was concluded, Ms Moses moved outside and was preparing to leave. The children were going to stay with you. You followed Ms Moses outside and told her that you were going to win her heart back. She replied that she did not want you to. During this conversation, Ms Moses said she wanted to leave New Zealand to go and live in Australia with your friend - her new partner. This was the first time that Ms Moses had told you that she was intending to go to live in Australia.
[17] You reacted to this news angrily and started to shout at her, saying “I’m not perfect, I can make mistakes and I’m not afraid to hurt you.” You repeated that statement to her several times.
[18] Your mother heard the shouting and went and told you to go for a walk to cool off. You replied, “OK I’ll go” and went and let your dog off its chain to take the dog with you. According to Ms Moses, Arnica then said that she wanted to go with you, and your mother suggested that you take her with you. Your mother also told Ms Moses that you would be alright once you got down to the river. You then went and got Arnica’s pushchair, and at one point you told Ms Moses to “get the fuck out of [your] way.” You were clearly agitated. Ms Moses put Arnica in her pram with her blanket because it was already getting on in the afternoon and getting cold. Then, after looking around for Arnica’s shoes and changing your jersey, you went off down the
driveway with Arnica in her pram. You took with you a book of religious writing, and headed towards the nearby Rangitaiki River.
[19] After you had gone, Ms Moses departed to drive back to Whakatāne. By then it was around 4.00pm. Your parents became concerned when you had not returned by the time it was starting to get dark, and they went to look for you and Arnica. They were joined by others from your village and neighbours. The search party started looking along beside the River where they thought you were going with Arnica for a walk.
[20] Your family and neighbours soon found your clothing, Arnica’s pram and her blanket left in a clearing next to the river. There was, however, no immediate sign of you or Arnica. Other family members and neighbours searching further down the river, then heard you calling out. They found you naked, standing in some thick blackberry bushes beside the river.
[21] When you were approached and asked where Arnica was, you said you had “fucked up” and that she was in the river, had drowned and was dead. The Police had already been alerted to the fact that Arnica and you were missing, and when they arrived at the riverside, one of the police officers spoke to you. You said you had taken Arnica into the water, held her under, and had just let her go.
[22] The Police search subsequently found Arnica’s body some 2.5 kilometres downstream from where you had taken her into the river. A pathologist, Dr Stables, who conducted the post-mortem examination of Arnica’s body, concluded that she had died of asphyxiation. Dr Stables suggested that there were three possible ways or mechanisms that this could have happened:
(a)drowning;
(b)suffocation possibly caused by a hand or something else over the mouth and nose and perhaps coupled with drowning; or
(c)gagging as a result of something obstructing her airway.
[23] In relation to drowning, Dr Stables noted that although some of the common post-mortem features which indicate drowning were not found, it nevertheless remained a possible cause of Arnica’s asphyxiation. However Dr Stables could not determine which of the three possible mechanisms of Arnica’s asphyxiation was the most likely.
[24] At your trial the jury rejected your defence of insanity. They found you guilty of Arnica’s murder. The Crown’s case was that you carried Arnica out into the river and once there, you deliberately held her under the water and then let her go. In doing so, you were either intending to drown her and that she would die, or you let her go knowing at the time that there was a risk that she would drown, and you were reckless as to whether or not she drowned and died.
[25] Whichever of those murderous intents was present in your mind when you took Arnica into the river and let her go, and despite any mental turmoil you were going through at the time, your actions had the tragic consequence of causing her death, the death of a particularly vulnerable little girl. It need not be said that all children in the care and custody of adults should at all times be kept safe and secure. The appalling tragedy here is that Arnica’s life was taken from her by the actions of her own father - someone who she loved and adored, and someone she completely trusted to always look after her and protect her. So in sentencing you today Mr Savage, the Court must hold you accountable for what you have done by taking Arnica’s life, and in doing so send a very clear message that our community has no tolerance whatsoever for the harming of children or the taking of lives of children.
Victim impact statements
[26] Mr Savage, I have read the victim impact statements. They all speak of the devastating loss of a much loved little girl, who during her short life had already shown herself to be strong-willed, determined, generous and loving. In their detailed victim impact statements they have described the profound impacts that Arnica’s death has had on the Savage family as a whole and upon them as individuals. They have each described the traumatic effects that Arnica‘s death has had on them. Your former partner, Santana, describes the pain she struggles with each day and of the difficulties
she now faces just keeping going. Both of your parents, through the victim impact statement prepared by your mother Te Reina, have spoken of how their lives have been changed, their memories changed, and their hopes for the future dashed by the traumatic consequences of Arnica’s death for the whole of your family. Your sister Mihikitekapua, (now caring for your youngest son), your sister-in-law Te Ata and your younger brother Hoani (now caring for your three other sons) have described how the directions of their lives has been affected and how they have made major readjustments to their own lives and commitments in order to take over guardianship and responsibility for caring for your four boys, now that Ms Moses has moved away and has ceased to have that responsibility herself. Your eldest sister Hine and indeed your eldest son have also presented victim impact statements describing the effects of Arnica’s death on them.
[27] In each case it is clear that the statements were prepared with considerable care and thought. They are detailed, articulate and insightful and speak of a proud and capable family whose lives have been devasted by the events of 1 July 2018 and by your actions that day. They also show that they have strength and resilience as a family to regroup and combine together to confront the challenges brought about by the devastating and far-reaching effects of Arnica’s death.
Mr Savage’s personal circumstances
Pre-sentence report
[28]I have read the pre-sentence report prepared by the Department of Corrections.
[29] The report says that you take full responsibility for Arnica’s death, but that you still feel “very jumbled” by being unable to remember what happened, and you are constantly trying to “figure out what happened”, to use your words. You explained to the author of the report that you did not intend to kill Arnica.
[30] The report describes your mental health history. It notes that you identified yourself as being manic depressive and bi-polar, which is a diagnosis that you received after your offending. The report describes you as having periods of mental unwellness every two or three years, going back to your late teenage years. During these periods,
you are described by a close family member as becoming detached, manic and depressed. You become increasingly grandiose, angry, and spiritual, and actively attempt to convert members of your family in a way that is described as “Bible Bashing”. The report also notes that despite your history of experiencing periods when you were mentally disturbed, you had never been prescribed any medication for your mental health condition.
[31] You told the pre-sentence report writer that with hindsight, you can see that your previously undiagnosed and unmanaged condition had deteriorated considerably over the period immediate preceding Arnica’s death. The report writer says that you expressed sincere and genuine remorse for your offending, and without prompting said that your thoughts are constantly about your family and the pain you have caused to so many people. You said that while you find your present situation incredibly difficult to comprehend, you nevertheless take “full responsibility” for Arnica’s death and express how sorry you are to everyone for what has happened and you have confirmed that this morning by your remarks to the Court.
Criminal history
[32] Mr Savage, you do have a criminal offending history which includes convictions for violent offending such as assault, injuring with intent to injure and male assaults female, for which you received community-based sentences. Your most recent conviction was for a male assaults female offence in 2014. You have no convictions for violence against children and the pre-sentence report states that the Police have confirmed that there had been no domestic violence callouts to the family in the 2014 – 2018 period. The pre-sentence report comments that this current offending is assessed as being a significant departure from your previous criminal offending. Having regard to the nature of the offending in your criminal history, I consider that to be of no significance to your sentencing for murder here today.
Pre-sentence cultural report
[33] I have also had the benefit of reading the comprehensive cultural report dated 30 July 2020, prepared by Ms Shelley Turner and submitted to the Court pursuant to s 27 of the Sentencing Act 2002. Ms Turner’s report was primarily based upon
information she obtained from interviewing you at Springhill Corrections Facility, and from meeting with members of your whānau in Whakatāne.
[34] Ms Turner says that you identify as Māori through both your maternal and paternal whakapapa, and that you are strongly connected to Te Ao Māori. Your whānau live with a strong sense of wairuatanga, with spirituality and spiritual values and beliefs, and are committed members and followers of the Ringatū faith.
[35] You are the fourth eldest of seven siblings. You were raised by your parents in a caring and supportive family environment, located primarily at Whakatāne. After attending your early schooling in Whakatāne, you gained a scholarship to go to St Peter’s School in Cambridge for years 10 and 11. There you excelled at sports and achieved certificates in six subjects. You left school aged 16, and after initially starting a boat building apprenticeship, you left and went working in orchards before spending around two years working as a deck hand on a commercial fishing boat in Australia. In 2004, you left that behind and returned to Whakatāne, and after a time commenced working again as crew on a commercial fishing boat, this time operating out of Tauranga.
[36] In 2004, you met Ms Moses and soon began a relationship that was to continue for nearly 15 years. In 2006, you and Ms Moses moved back to Whakatāne and your first child was born that year. You were 21 years old. Together you and Ms Moses have five children, including Arnica, who was, as I have said, your second to youngest. You have worked as an electrician for most of the past decade, having obtained the necessary trade qualification and establishing your own electrical contracting business.
[37] Your whānau is clearly very important to you and I repeat what I said earlier, that one of your close whānau has described Arnica as your heart; as someone who adored you, and a child and daughter whom you adored.
[38] However, your relationship with Ms Moses was rapidly deteriorating shortly before your offending and any hopes you may have had of reconciling with her were dashed when shortly before setting off on your walk to the river with Arnica, you
learned from Ms Moses that she was intending to move to Australia with your friend, the friend that she had recently commenced a relationship with. You have tried to rationalise your offending within this context, and attribute your subsequent mental troubles to “trying to figure it all out, trying to accept letting it all go and letting go of Santana”. The mental turmoil you went through during this period led you to experience a crisis of faith. Your mother has described you as wrestling with a mental battle between good and evil, at this time. Ms Turner suggests that your diminished sense of spirituality, or wairuatanga, had become severely distorted and you and members of your whānau have a firm belief, it appears, that your offending was brought about by something akin to a manic episode during which your mind was impaired.
[39] Ms Turner also notes, that you and your whānau will carry whakamā as a result of your offending, explained as being a deep sense of shame and self-abasement for which there is no directly equivalent English word. Ms Turner says that the punitive effects of whakamā and its effect on your mana and your whānau will be far greater than the effect of any custodial sentence that may be imposed on you.
Purposes and principles of sentencing
[40] In fixing your sentence, I must have regard to the relevant purposes and principles of sentencing. Mr Savage, the purposes for which I sentence you today are to hold you accountable for the harm you have caused by your offending, to promote in you a sense of responsibility for that harm, to denounce and deter your conduct, and to protect the community from you.1
[41] In sentencing you, I must bear in mind the general desirability of consistency with sentencing levels in similar cases and the need to take into account the gravity of the offending in this particular case, including the degree of your culpability and the general desire for consistency with sentences imposed on offenders committing the offence of murder in similar circumstances.2 I must also take into account any
1 Sentencing Act 2002, ss7(1)(a),(b),(e), (f) and (g).
2 Sections 8(a) and (e).
circumstances personal to you that would mean a sentence that is otherwise appropriate would be disproportionately severe for you.3
[42] While murder is necessarily offending of a very serious kind, I have to bear in mind that I should not impose a sentence upon you that is crushing, and that as far as possible within the limited discretion that I have, the Court is required to impose a sentence that will assist in your rehabilitation and eventual re-integration back into society.
Approach to sentencing in relation to murder
[43] Mr Savage, the law provides that a person convicted of murder must be sentenced to life imprisonment unless it would be manifestly unjust to do so.4 The presumption of a sentence of life imprisonment for murder recognises the sanctity accorded to human life in our society, and our community’s abhorrence of the crime of murder. 5
[44] Realistically, your counsel, Mr Tait, does not suggest that a sentence of life imprisonment would be manifestly unjust in this case. Indeed, this is not one of the exceptional type of cases where it would be manifestly unjust to impose the life sentence presumed for murder offending. Therefore, I am obliged to impose on you a sentence of life imprisonment.
[45] A sentence of life imprisonment means that you must remain in prison throughout your life, unless and until the Parole Board releases you into the community on parole. If you are granted parole and released into the community, you may only remain in the community so long as you comply with your parole conditions and do not re-offend. A sentence of life imprisonment means that you will always remain liable to be recalled to prison to complete your sentence.
3 Section 8(h).
4 Section 102.
5 R v Williams [2005] 2 NZLR 506 (CA) at [57].
[46] I must also decide what the minimum period of imprisonment should be. This is the minimum term you must serve before you become eligible to apply for parole.6 Ordinarily, the minimum term of imprisonment for murder must be not less than 10 years. But if the Court is satisfied that the specified circumstances of the murder are exceptional by reference to what Parliament has classified as the most serious kinds of murder, then I must impose a minimum non-parole period of 17 years or more, unless it would be manifestly unjust to do so.7 The specified circumstances which require a murder to be treated as being more serious and requiring the imposition of a 17 year non-parole period are set out in s 104 of the Sentencing Act 2002.
Submissions
For the Crown
[47] The Crown submits that a sentence of life imprisonment for the offence of murder would not be manifestly unjust in this case. The Crown further submits that s 104 of the Sentencing Act applies, and that it would be appropriate to impose a minimum term of imprisonment of 17 years.
[48]The Crown says that the following are all aggravating factors of the offending:
(a)the loss of Arnica’s young life and her vulnerability;
(b)the impact of her death upon her family and whānau;
(c)the gross breach of trust involved in Arnica being killed by you as her father; and
(d)the fact that she was a defenceless and particularly vulnerable two- year-old child.
[49] The Crown accordingly submits that by reason of Arnica’s age and vulnerability, coupled with the fact that she was in your sole care when she was killed,
6 Sentencing Act 2002, s 103.
7 Sentencing Act 2002, s 104.
s 104 is engaged, and requires the imposition of a minimum term of at least 17 years’ imprisonment.
[50] The Crown accepts that you were affected by distressing personal circumstances arising from your separation from Ms Moses at the time you killed Arnica, and that you were exhibiting signs of poor mental health apparently connected to or related to that separation. The Crown also accepts that you loved Arnica and that you are genuinely remorseful for your offending.
[51] In relation to the report prepared by Ms Turner, the Crown says that it confirms you were raised in a strong and supportive whānau and as a child you received a good education which you subsequently drew on to obtain your electrical trade qualifications and to establish your own business. The Crown says that Ms Turner’s report does not indicate that you had been adversely affected by systemic deprivation in the course of your upbringing and does not identify any background matters that may have caused you to offend in the manner that you did. If anything, the Crown says the report suggests that your offending was out of character and inconsistent with the family values with which you were raised. The Crown says that the whakamā flowing as a result of Arnica’s death and your conviction for her murder is not unlike that which would be the usual consequences for anyone found guilty of the murder of their own child.
[52] Ms Pollett, for the Crown, accepts that whakamā is a consequence that the Court nevertheless needs to take into account and she submits that in taking that into account, a relevant factor will be the length of time for which you are imprisoned. The Crown concludes by submitting that the personal factors identified by the defence, including your poor mental health at the time of Arnica’s death, do not justify a departure from the statutory minimum of 17 years’ imprisonment given Arnica’s significant vulnerability, and the gross breach of trust involved in her killing. The Crown says that it would not be manifestly unjust to impose a minimum term of 17 years’ imprisonment in your case.
For the defence
[53] Mr Tait on your behalf accepts that a sentence of life imprisonment is appropriate in your case. He also accepts that the provisions of s 104 of the Sentencing Act apply by reason of Arnica’s age and particular vulnerability. Mr Tait submits however, that the imposition of a minimum sentence of imprisonment of 17 years would be manifestly unjust in your case, and that the appropriate minimum period of imprisonment that should be imposed is that of 14 years’ imprisonment.
[54] In addressing the question of setting a minimum period of imprisonment in accordance with ordinary sentencing principles, Mr Tait acknowledges that the aggravating features of your offending are:
(a)The enormous loss caused by Arnica’s death which is exacerbated by her young age.
(b)The abuse of trust by you as Arnica’s father, and her particular vulnerability by reason of her being in sole your care at the time.
[55] Mr Tait further acknowledges that there are no mitigating features relating to your offending.
[56] While accepting that s 104 is engaged, requiring the imposition of the minimum period of imprisonment, Mr Tait submits that such a minimum period would be manifestly unjust because of your impaired mental state at the time of the offending, and because of whakamā resulting from Arnica’s murder by you as her father.
[57] Mr Tait has referred the Court to a number of previously decided murder sentencing cases including several where the victims were also children so as to provide a comparison and to inform the Court’s assessment of the appropriate minimum period of imprisonment to be applied in your case.8 Mr Tait says that in the Harrison -Taylor case the Court’s decision in finding that the imposition of a 17 year minimum period would be manifestly unjust was informed by evidence from a
8 R v Harrison-Taylor HC Auckland CRI-2004-092-1510, 12 September 2005; R v Ellery [2013] NZHC 2609; R v Marinovich [2020] NZHC 1160; DD (CA595/2014) v R [2015] NZCA 304.
psychiatrist, Dr David Chaplow, who also gave evidence in your case, who said in that case that the defendant suffered a border-line personality disorder which made her more vulnerable to stress and reduced her ability to cope in stressful situations. Mr Tait notes that the Court in that case imposed a sentence of life imprisonment with a minimum period of imprisonment of 12 years.
[58] Another case referred to by Mr Tait is that of R v Marinovich in which Dr Mhairi Duff, who also gave evidence in your case, gave evidence describing the defendant’s previously undiagnosed autism spectrum disorder, which she identified as being a factor that had contributed to his offending and was one which would make serving a sentence of imprisonment more difficult for the defendant. Justice Walker noted that although there was insufficient evidence to show that the defendant’s mental disorder had caused the offending, it was nevertheless a relevant mitigating factor that would reduce the moral culpability of his offending. The Judge imposed a sentence of life imprisonment with a minimum period of imprisonment of 14 years.
[59] Mr Tait distinguishes those cases where the Court has declined to find that a 17 year minimum period would be manifestly unjust, on the grounds that those cases did not involve defendants who were suffering from the sort of significant mental disabilities found to be present in cases where the Court found it to be manifestly unjust to impose the 17 year minimum period.9
[60] Mr Tait submits that here the evidence given by the three psychiatrists who gave evidence at your trial, namely Dr David Chaplow, Dr Peter Dean and Dr Mhairi Duff, shows that you were suffering from a bi-polar disorder causing you mental instability in the period leading to and including the time of your offending on 1 July 2018. Mr Tait submits that your impaired mental functioning is relevant in relation to sentencing as it reduces your moral culpability. He further submits that your bi-polar disorder is particularly relevant to the issue of whether specific or general deterrence should be moderated or eliminated. Your counsel notes that Drs Chaplow and Duff were both of the opinion that you suffered from a manic depressive episode at the time of the offending. Mr Tait submits that as in the case of Marinovich, although the
9 R v Filihia [2014] NZCA 401; Little v R [2007] NZCA 491; R v Solomon [2016] NZHC 1653.
evidence of the psychiatrists does not show that your mental illness caused the offending, it is nevertheless a relevant factor in terms of assessing your culpability and should be recognised in the sentence to be imposed on you.
[61] In relation to the s 27 report prepared by Ms Turner, Mr Tait acknowledges and accepts the Crown submission that the report does not demonstrate that you have suffered any effects of “systemic Maori deprivation”, and he notes that you do not claim to have suffered such deprivation. Mr Tait notes that the report confirms that your actions have had a destructive impact and have brought shame on you and your whānau and upon your personal standing within your whānau.
[62] Mr Tait submits that the existence of whakamā as a result of your offending is a factor that can be taken into account by the Court in deciding whether a 17 year minimum term of imprisonment would be manifestly unjust.
[63] Mr Tait concluded by submitting that taking your mental impairment and genuine remorse into account, as well as the matters identified in the s 27 cultural report, a sentence of life imprisonment with a minimum term of 14 years is appropriate in the circumstances of this case.
The appropriate sentence for this offence
[64] It is clear that s 104 of the Sentencing Act is engaged here. Section 104(g) of the Act requires that “if the deceased was particularly vulnerable because of his or her age”, the minimum term of imprisonment for murder must be at least 17 years unless the court is satisfied that it would be “manifestly unjust”.
[65] There is no question that Arnica was a particularly vulnerable victim both because of her age, and because of the strong sense of affection and trust she had for you as her father. You let her go and let her drown in a cold river in circumstances where she had no ability to survive. The extreme vulnerability of Arnica as the victim here, is a dominating and central feature of your offending.
[66] The question then is whether it would be manifestly unjust to impose a life sentence with a minimum period of imprisonment of at least 17 years. This question
will be informed by an assessment of the degree of culpability of the offending in the present case by comparison to the offending in the standard range of murders. It is a discretionary assessment that requires me to consider whether your case falls outside the legislative policy that in general, the presence of one or more of the s 104 factors means that the murder is so sufficiently serious that it warrants at least a minimum 17 year period of imprisonment.10
[67] In my view, your general mental instability and illness at the time of your offending is a mitigating factor which means a 17 year minimum period of imprisonment would be manifestly unjust for you.
[68] It is well-accepted that a defendant’s mental disorder may be a mitigating factor, as it reduces a person’s moral culpability.11 There was ample evidence at your trial given both by your whānau and Dr David Chaplow, the forensic psychiatrist, that shortly before Arnica’s death, you were behaving unusually and were making some bizarre statements.
[69] Dr Chaplow examined you, so that he could provide his opinion on whether there were grounds for a defence of insanity. Dr Chaplow noted in his evidence that you have a history of mental illness, going back to when you were a teenager. Further, he said that you had, on a number of occasions, experienced periods of elevated and abnormal moods which were often associated with disturbance and inter-personal disturbance. A number of times, Police had to be called because of your actions. Dr Chaplow said that in his opinion, you had a history of manic depression, an incurable mental illness that sometimes manifests as depression, a mania or hypomania.
[70]Referring to your mental state on 1 July 2018, Dr Chaplow said:
My opinion is that he, he clearly had the history of mental illness and there was also a pretty clear history I thought of instability leading up in the weeks, the weeks to the 1st of July that they all point to a mental illness and I think you can't get away from that. Clearly he was also stressed but, but the mental illness is quite clear.
10 Malik v R [2015] NZCA 597 at [32]; R v Williams [2005] 2 NZLR 506 (CA) at [67].
11 E (CA689/2010 v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [70]; R v Marinovich [2020] NZHC
1160 at [43].
…
He clearly had a latency of illness which I suspect exacerbated under tremendous pressure.
[71]He added:
With manic depression, and I had the feeling with, with Tewi Savage, that he had – certainly the leading up to the, the tragedy is that he had a really mixed affective picture so there was both depression and elation and patches of expansiveness and patches of anger. So it’s quite a mixed picture. Difficult to – certainly, certainly up to the walk I’d have to say that – I would normally not say there was mania there, I’d say there was hypomania. Which is a mood thing rather than a psychotic thing. Once he got to the end of the walk, we’re not quite sure what happened there and you know it’s very difficult to know.
Q:And you say that based on his self-report to you about a lack of memory?
The only person to report was him you know and so it wasn’t self-report. I felt that he was candid. I don’t think he was exaggerating or whatever, I think that his description was rather typical of a person in great distress quite frankly.
[72]And further:
Yes, well I think he’s very distraught. The tests that we’re asked to meet or the tests that he’s asked to meet in terms of insanity is did he know the nature and quality of what he was doing. Hard to say because we haven't got an eye witness account. What we have got earliest we can say is that he knew that he was holding Baby and she slipped from his grasp. So does that meet the test, I don’t know, and I leave that to the Court. Did he know that what he is involved in was morally wrong okay and it's pretty difficult, also we know that he loved his child and, and was a very grief stricken and I suspect a lot of when you read the transcript about how he cried and how he called out and right from the, right from when he was first, I think his first words were, “Mum, I f-ed up” or, “Dad, I stuffed up.” So in a sense there was awareness there of some tragedy which, which tends to or tend to moral awareness I think but again that’s for the Court to decide.
[73] Further expert psychiatric evidence was given by Dr Mhairi Duff who was called as a defence witness. In her report, Dr Duff expressed her opinion that at the time of the offending you were suffering from a relapse in your bipolar affective disorder. Dr Duff considered that you satisfied the criteria required to establish a defence of insanity, but also observed that should her opinion not be accepted, it was “likely at worst” that your “disorganisation and confused mental state contributed to negligent behaviour leading to [your] daughter’s death”.
[74] Having regard to that expert opinion evidence, I consider that the evidence at trial clearly shows that you have a history of mental illness, and that in the days and hours leading up to the offending, your mental state was significantly disordered and disturbed. While it did not reach the level required for the defence of insanity, it is certainly relevant to an assessment of your criminal culpability, and to the sentence that should be imposed on you.
[75] There are a number of examples of your behaviour in the hours leading up to the offending which support that conclusion.
[76] First, you told Dr Chaplow during your interview that you had taken your clothes off beside the river and danced naked in front of your daughter to express humility. The very fact that you took your clothes off before entering the river is itself an indication of the disordered nature of your mental state at the time. It was a cold afternoon in winter, and the river water was undoubtedly very cold. It appears to bear the hallmarks of some sort of religious cleansing and in no way can it be seen as consistent with rational thinking.
[77] Second, the evidence about you suggests that up until the tragic events of 1 July 2018, you were a loving and caring parent. There were no post-mortem findings of any injuries on Arnica’s body, or of any violence that had been inflicted upon her. Moreover, although you had spoken angrily to Ms Moses and had used threatening language towards her before you left for your walk with Arnica, there can be no doubt that you dearly loved your daughter, and that being the case your action of taking her out into the river and letting her go, and leaving her there to drown, stands in stark contradiction to the evidence of your genuine love and affection for her.
[78] There are other cases in which the Court has found that a 17 year minimum period of imprisonment would be manifestly unjust because of a defendant’s mental state at the time of offending. For example, in R v Harrison-Taylor already mentioned, where the Court found that the defendant who had reacted in a moment of rage, suffered from a dissocial personality disorder, exhaustion, insomnia, and chronic pain for which she was taking medication.12 The defendant in that case also possessed
12 R v Harrison-Taylor HC Auckland CRI 2004-092-001510, 12 September 2005.
personality characteristics that caused her to have limited ability to cope. Justice France found that there had been no premeditation and the combination of her personal characteristics diminished her culpability. The end sentence imposed in that case was life imprisonment with a minimum non parole period of 12 years.
[79] R v Ellery is a case in which the Court found that the defendant’s Attention Deficit Disorder impaired his personality functioning, which was a factor contributing to the offending.13 Justice Toogood found that the defendant’s youth at the time of the offending (he was then 21 years old), his psychological background including the way he had been treated during his upbringing, coupled with his genuine remorse, meant that the imposition of a 17 year minimum period of imprisonment would be manifestly unjust. Justice Toogood reduced the sentence by two years on account of the defendant’s psychological background, youth and remorse. He then reduced the sentence by a further 18 months to recognise the defendant’s guilty plea, leading to an end sentence of life imprisonment with a minimum period of imprisonment of 13 years, six months.
[80] Mr Savage, in my view, your disturbed mental state was clearly a significant contributing factor in your offending, and it significantly reduces your level of culpability. It is a factor that I consider would make the imposition of a minimum period of imprisonment of 17 years manifestly unjust, notwithstanding Arnica’s vulnerability. The circumstances in which the offending occurred here are an example of the powerful mitigating circumstances bearing on the offence referred to by the Court of Appeal in Williams, and therefore put this offending outside the legislative policy and intended scope of s 104 as regards the imposition of a minimum period of imprisonment of 17 years.14
[81] Mr Savage, I consider that a starting point of a 17 year minimum period of imprisonment, should be reduced by two years to allow appropriate recognition for the effect of your mental illness and the effect that it had on your thinking and decision making, and on your behaviour and actions that led to Arnica’s death.
13 R v Ellery [2013] NZHC 2609.
14 R v Williams [2005] 2 NZLR 506 (CA).
[82] I also accept that you are genuinely and profoundly remorseful, and that your remorse is accompanied by a deep sense of shame, whakamā, for what you have brought upon your whānau. However, I do agree with the Crown that the contents of the s 27 report do not show there to be any direct connection between your cultural background and your offending. Your family and cultural background as described by the s 27 report is characterised by strong family support and is based on a commitment to cultural and religious standards, practices and principles. However, that is not to say that your background has no relevance so far as your sentencing is concerned. It is evident that your mental turmoil prior to and at the time of Arnica’s death involved you wrestling with the conflict between your religious life and principles and the confronting reality of the disintegration of your long-term relationship with Ms Moses.
[83] As I see the issue of your profound remorse and sense of shame, the two are closely connected. You are shameful for what you have done and you are shameful for what you have done in terms of its effect upon your family. I see that as effectively encompassed by an allowance for remorse which I will make.
[84] The tragedy of Arnica’s death will be an ever-present burden you must now bear for the rest of your life, and the sentence imposed on you by this Court is only one part of that burden. In recognition of your deep and genuine remorse and the sense of shame that you bear, I shall further reduce the non-parole period by one year.
Result
[85] Mr Savage, please stand. On the charge of murder, I sentence you to life imprisonment with a minimum period of imprisonment of 14 years.
[86]You may now stand down.
Paul Davison J
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