R v Sikuvea HC WN CRI-2007-032-1449

[2008] NZHC 2421

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2007-032-1449

THE QUEEN

v

MANU SIKUVEA

Hearing:         25 July 2008

Counsel:         R Stevens for Prisoner

G J Burston and C Boshier for Crown

Judgment:      25 July 2008

SENTENCING NOTES OF GENDALL J

[1]      Manu Sikuvea you appear for sentence having pleaded guilty on 16 April

2008 to the crime of murder and two charges of sexual violation of your victim.  The facts upon which I sentence you, ascertained from the depositions, other material and contained in the summary of facts, I now set out.

[2]      You are aged 37 and for approximately 15 years you had a relationship with a woman, who you married, and who was the mother of your three children.  Within your family unit there were two other children.  So you and she had five children who are now aged between four and 13 years.  They needed you both.

[3]      It is not recorded in the agreed statement of facts but your previous criminal record discloses that in 2000 you were convicted of assaulting a female.  She was

R V SIKUVEA HC WN CRI-2007-032-1449  25 July 2008

your wife.  You had a violent nature and disposition, but you failed to complete a stop violence programme which you should have completed.

[4]      The ultimate tragedy for your family developed over Easter in 2007.  You, your wife and your children travelled from the Waikato to the Hutt Valley for a wedding.  What was meant to be, and initially was, a joyous occasion turned into unmitigated horror for your wife and children.  She lost her life, and they lost their mother.

[5]      You had been taking drugs during the day.  You told the Probation Officer they included methamphetamine although you denied this to the police.  You and the deceased  consumed  alcohol  during the  afternoon  and  evening  which  was  to  be expected given the occasion.   But you were intoxicated by reason of a significant quantity of alcohol, cannabis, and other drugs (probably methamphetamine) taken during the day.  There was a jealous and nasty streak in your nature.

[6]      After  the  wedding  reception  finished  you  went  to  an  informal  family gathering, your children having been left in the care of relatives.  You took umbrage at  an  innocuous  event  when  your  wife  was  talking  to  another  woman  at  the gathering.   It is well known to Judges that irrational paranoia may arise from the taking of methamphetamine.   In your case it was inherent in your nature that you were violent.  You became angry and abusive.  In the early hours of the morning, you and your wife left in the family van.  Her departure with you was to be her death knell.  Over the next two hours somewhere in the Hutt Valley, you brutally battered her to death whilst she was trapped in the family van.   It started when you were driving but because you could not get enough shots in you stopped the van and attacked her in a vicious, prolonged and depraved way.

[7]      In the course of the attack, and before she died, you sexually violated her. There are some forensic evidence that suggests rape.   But the dreadful attack was apart from strikes to the head, she had severe injuries to her anus and vagina.  There were multiple tears and internal lacerations caused by a large hard sharp object being repeatedly forced in and out of her body.  It was a grab handle taken from the van.  It had screws protruding from it.   The shocking injuries to these parts of her body

could have been capable of causing her death, although the actual cause of death was the multiple beatings and attack to the head.  Whether you remember it or not, you were later to throw that weapon away at an address to which you drove after killing your  victim.    The  photographs  of  her  body  illustrate  the  horrific  injuries  you inflicted.

[8]      After killing your wife, you returned to the family address in Lower Hutt. You said that you wanted help and said that you had killed her.  No mention was made of the sexual attack, and as I have said, you threw away the weapon.  What you did was because of rage through jealous vengeance and because, as you said to the police, she was “lippy” to you.  When interviewed by the police you did not mention the  sexual  violation  but  admitted  killing  your  wife.    It  is  possible  that  a  self- protective amnesia existed.

[9]      This was an attack of severe brutality.   It was not just a beating about the head, but of such severity and intent so as to be murder.  It was gravely aggravated by the depraved sexual violation.   It illustrates a degree of depravity, callous, and extreme cruelty.  It was a brutal attack upon a vulnerable woman who you were in the process of beating into submission.

[10]     Sentencing for murder usually involves life imprisonment.  That is mandatory unless the circumstances of the offence (or the offender) are such that it would be “manifestly unjust”.  There is no possible basis to conclude that anything less than a life sentence is appropriate for this crime, and your counsel does not suggest otherwise.

[11]     The Crown sought a minimum period of imprisonment in respect of this sentence.  The Crown says that is because your culpability is at the highest end of the spectrum.  It says it is because of:

a)        The long history of domestic violence perpetrated on your victim;

c)        She was vulnerable;

d)       The attack was unprovoked;

e)        The offending was committed over some 2½ hours;

f)        The severity of the attack;

g)        The brutal sexual attack involving the use of an object with screws protruding from one end; and

h)        There were three separate possible causes of death.

[12]     The Crown seeks a minimum period of imprisonment (that is the minimum non-parole period) of 21-22 years.  It says that is appropriate in this case.

[13]     Under s 103 of the Sentencing Act the minimum period of imprisonment or non-parole period for murder must be not less than 10 years.   The length is to be determined by what is necessary to hold you accountable for the harm you have done, denounce your conduct, deter you and others from committing the same or similar  offences,  and  to  protect  the  community.     But,  under  s 104,  in  some circumstances the Court must impose a minimum period of not less than 17 years, unless it is manifestly unjust to do so.   Your counsel properly accepts that that section applies to you.  At least three of the circumstances contained in the section exist.  They overlap but they are:

a)        Whether the murder was committed in the course of another serious offence; or

b)Whether the murder was committed with a high level of brutality, cruelty, depravity, or callousness; and

[14]     I have  no  doubt  those  criteria  are  met  in  your  case.    This  murder  was committed in the course of, or aligned with, two very serious crimes of sexual violation, using an instrument upon the genitalia and body of your wife.   It was committed with a high level of depravity, brutality and cruelty.   Cruelty as being indifferent to in others’ pain, and brutality involves behaviour that is savage.   It seems to me that anyone who attacks a woman in this way, not only by a frenzied attack to the head and body, but by the vicious dreadful use of the weapon upon her fits squarely into that category.   She was a vulnerable woman trapped in the van, helpless to deflect a wicked attack.

[15]     Of course there is no such thing as a murder which is not in some sense brutal, cruel or callous.  What is required is a high level of brutality, and that is a question of degree.  I am satisfied that it existed in this case.  By a large margin you qualify for a minimum non-parole period under s 104.  As I have said, the Crown says it should be 21-22 years.  It has referred me to a number of cases such as:

R v Te Hiko (HC Rotorua, CRI-2006-077-000921, 18 May 2007) – where the murder had a sexual dimension – minimum non-parole period 18 years after a starting range of 20-21 years;

R v Randle (HC Wanganui, CRI-2005-083-380, 11 May 2007) – life imprisonment for murder with a minimum term of 19 years because of sexual violation;

R v Waihape (HC Christchurch, CRI-2005-009-14252, 17 August 2006) – Waihape pleaded guilty to the abduction and sexual violation of a 17 year old girl.  He raped and murdered her.  A minimum non-parole period of 18 years. The Judge taking a starting point however of 22 years;

R v Alder (CA430/01, 25 June 2002) – trial over which I presided where he received a minimum non-parole period of 18 years with a discount of one year for the guilty plea.

[16]     I consider the Crown’s starting point of 21-22 years too high because it is not consistent with other authorities.  Unquestionably your actions were dreadful crimes but, viewed as against sentences imposed in other comparable circumstances, I think a starting point of 19 years is necessary.

[17]     Murder in the course of sexual violation with an instrument reaches the level of depravity that requires that minimum period of non-parole for at least 19 years. Credit or allowance for a guilty plea may be a mitigating factor and I will come to later.

Mitigating features

[18]     As to the mitigating features, there are none except your guilty plea but I accept  your  counsel’s  submissions  that  you  are  remorseful.    Such  may  be  a mitigating feature when it comes to criminal sentencing.   But where someone has been brutally murdered, remorse and feeling sorry does not remedy the effects of the crime.  Nor does it bring back the deceased.  Nor does it provide comfort or solace for the remaining family.  So, it is sometimes said that, in such a context, remorse is a “useless emotion”, where it gives no measure of comfort or understanding to those left behind.

[19]     The Victim Impact reports make distressing reading.   Your wife, and the mother of five children, has been deprived of about 50 years of her life, and your children are being left without a mother forever.  They are being cared for by good close relatives overseas.   Your children had to witness a history of drug taking, alcohol and other abuse, and now will have to come to terms with the fact that what was to be a happy trip to Wellington ended up in their mother losing her life at your hands.  You too have that knowledge but despite what you have done, your children will be well cared for, although their emotional scars will remain for the rest of their lives.

[20]     Any sentence must recognise the interests of your victims and denounce the conduct in which you engaged.

Aggravating features

[21]     I turn to the aggravating features which are obvious from what I have already said.   Your actions on that night reached a level of vicious depravity so as to be gravely aggravating.    Use of methamphetamine, speed, or drugs of the methamphetamine type, are yet another dreadful illustration of the terrible dangers those drugs pose to society, especially when they are consumed by persons who have an angry, violent and maladjusted personality problems.

[22]    You have an extensive list of previous convictions.   They are personal aggravating features.  They total 51 and range from burglary and aggravated robbery (for which you were sentenced to three years’ imprisonment in 1994), excess breath blood alcohol, theft, possession of cannabis, driving whilst disqualified, and significantly four convictions for assault.

[23]     Those previous convictions and your violent proclivity might well be said to balance out any mitigating factors through your guilty pleas.  The truth is that any defence would have been futile, and you were well advised to plead guilty because conviction for murder and sexual violation was inevitable.   But your decision to plead guilty was responsible and you were wise to accept the advice of counsel.

[24]     The Courts have said that in some cases a discount should be made for a guilty plea despite the mandatory requirement of s 104.  But as it was said by the Court of Appeal in R v Williams [2005] 2 NZLR 506 at [73]:

The discount required for a guilty plea in those situations may often be less than in an ordinary case.

[25]     The appropriate discount to be given in such circumstances, the Court of

Appeal reviewed recent cases in R v McSweeney CA 488/06 and simply said:

[10]     The Crown observed, allowances for pleas of guilty in the region of one to two years in cases involving s 104 have commonly been given.

[26]     In the sentencing notes I simply record those cases that the Court of Appeal referred to (see R v King HC Christchurch CRI-2004-009-001635 8 March 2005;

R v L HC AK CRI-2004-44-8643 13 June 2006; R v Baker HC AK CRI-2006-044-

5276  15 December  2006;  R  v  Aporo  HC  PMN  CRI-2005-054-2872  20  October

2006; R v Shepherd HC AK CRI-2004-092-013121 2 November 2006; R v Fenton

HC WHA CRI-2006-088-3599 28 February 2007).

[27]     The only basis upon which allowance is given for a guilty plea in situations such as this is that otherwise no credit would end up being given for the fact that an early guilty plea has avoided the need for a trial and provided some degree of closure to the victim’s family.

[28]     Accordingly, I allow you a discount of one year from the 19 years figure.  I fix the minimum non-parole period at 18 years.  But, let it be quite clear Mr Sikuvea, that your life sentences is a life sentence, and there is no release date.  You will be subject to that sentence for the rest of your life and you will not be released unless the Parole Board, if and when it comes at any time to consider an application for parole, which cannot be until 18 years has expired, that the Parole Board is satisfied that you no longer pose a risk to the community.

Preventive detention

[29]     I turn to the question of preventive detention.   That too, is an indefinite sentence similar to a life sentence.  The Crown has sought a concurrent sentence of preventive detention in respect of your two crimes of sexual violation.   It may be imposed alongside a mandatory life sentence for murder, an example is R v Mackrell (1998) 16 CRNZ 1, and I have had the sad task of having to impose it in some other cases.

[30]     There are certain elements which must be satisfied before such a sentence of preventive detention can be imposed.   You qualify, having been convicted of a sexual and violent offence, and being over the age of 18 years.  I must be careful not to involve “double counting” in the sentencing process, but I observe the preventive detention’s purpose is to protect rather than being aimed at punishment.  Of course it can be seen and felt as punishment, but its purpose is protective of the community.

[31]     Under s 87 of the Sentencing Act 2002, when considering whether to impose preventive detention, the Court must consider several factors.  It has to be satisfied that you would be likely to commit another qualifying sexual or violent offence if released at the sentence expiry date that is of a finite sentence, or the date of any other sentence that the Court is able to impose.

[32]     Examples  of  preventive  detention  being  imposed  on  charges  of  sexual violation alongside a life sentence for a murder are in R v Randle (HC Wanganui, CRI-2005-083-380, 11 May 2007, Ronald Young J) to which I have referred, and R v Waihape (HC, Christchurch, CRI-2005-009-14252 17 August 2006).  Both those cases illustrate that one needs to consider relevant factors such as the pattern of offending.  In your case you do not have a pattern of sexual offending but you do have a pattern of violent offending.  In R v Hotene (HC Auckland S.23/00 9 October

2000) Paterson J said:

[10]     … there is no reason why the Court cannot impose a concurrent sentence of preventive detention with a sentence of life imprisonment for murder.   It is my view that the Court should impose such a concurrent sentence if the circumstances warrant the imposition.   There are several reasons for this but two are particularly appropriate in this case.   First, by doing  so  [the]  Court  would  reflect  the  totality  of  the  offending.    If  an offender   commits   two   crimes,   both   of   which   qualify   him   for   an indeterminate sentence, then such sentences should be imposed.  Secondly, the fact that an indefinite term of imprisonment has been imposed for two different offences may well be relevant to the Parole Board’s subsequent consideration if you come up for parole.

[33]     Secondly, the Court has to also consider the seriousness of the harm to the community caused by the offending, and of course your violent and sexual offending place this harm in the high range.

[34]     Thirdly, the Court must consider psychological and psychiatric reports.  They regard you to be at a risk of future offending if you do not take such treatment and assistance as to rehabilitate you and remove those factors in your personality which have led to  your offending.   Rehabilitation is always  possible  but  it  requires  a considerable period of treatment.

[35]     Lastly, the Court has to consider whether a finite (that is fixed) sentence, including the possibility of a later extended supervision order would adequately

protect the public with regard to sexual offending charges.  The Court has to have two reports from appropriate health assessors as to the likelihood of your committing a further qualifying offence, and those reports have been received.

[36]     A sentence of preventive detention is not a sentence of last resort and the

Court has a discretion whether to impose it in order to protect the community.

[37]     Patterns  of  serious  offending  disclosed  by  your  history  arise  from  your multiple convictions over 20 years, some for violent crimes.   As I have said you were sentenced to three years’ imprisonment for aggravated robbery and had been convicted of assault.    The  clinical  psychologist  expresses  the  opinion  that  your behaviour since youth is a continuation of violent offending, and despite sanctions of periodic detention, supervision and imprisonment, you take refuge in claims of loss of memory when asked about earlier crimes.

[38]     The seriousness of harm to the community is obvious.   The Victim Impact Statements illustrate the suffering of your wife’s family which has been immeasurable.

[39]     The psychiatrist assesses you at high risk of further violent offending.  This is not just from statistical and historical factors but because of your maladjustment and violence from a young age with relationship and substance abuse problems and there has been a lack of insight into your difficulties.   The psychologist applied a well- known  statistical  tests  for  assessing  your  risk  and  concluded  that  you  were  at medium to high risk of serious sexual reoffending, and a high risk of general offending with medium high risk of further violent offending.

[40]     I have considered the absence of, or failure by you in efforts to address the causes of your offending and note that you failed to complete previous rehabilitative options including counselling for drug and alcohol problems and failing to complete a stop violence programme.   You have limited insight into your reasons for your offending.  Whilst a stance of not remembering any details of the offending (not just this, but of the past offending), is seen by the health professionals as a barrier to successful treatments.

[41]     Lastly, I have to consider whether a finite sentence would be adequate to protect the public, bearing in mind the reality of course is that you will be serving a term of life imprisonment on the charge of murder.  There are a number of examples (as I have said) where preventive detention has been imposed concurrently with a life sentence and include R v Johansen (HC Auckland, CRI-2005-83-1849, 2 June

2005) where the Judge was satisfied the imposition of a term of preventive detention, served concurrently with a life imprisonment for murder said:

Will be of more influence or relevance to the Parole Board or its successor than imposition of a finite term which will simply be swallowed up by your term of life imprisonment.

[42]     The same sentiment was expressed by Chisholm J in R v Waihape where he said:

… the answer is simple.  The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk of the safety of members.   Whilst it is very difficult for health professionals to predict 18 years out, I do not think that even the most lengthy finite sentence that I could impose for rape provides the protection that the community needs.  The sentence of preventive detention will provide a screening, if and when, you ever enter the community again.

[43]     Because this was the first sexual offence for which you have been convicted, my initial impression was that a finite term of something in the region of 14 years’ imprisonment could have been imposed.   But the reports of the psychiatrist and psychologist have influenced me to reach the conclusion that the proper sentence for the protection of the community is one of preventive detention, which will of course run concurrently with your sentence of life imprisonment.

[44]     It has a statutory minimum non-parole period of five years.  Whatever length is fixed is entirely academic given the minimum term imposed in respect of the life imprisonment for the murder conviction.  So, I fix it at eight years.

[45]     You should clearly understand that the reality is that you will be serving a life term of imprisonment for murder and an indefinite (that is life) term for preventive detention with no final release date.  You have life sentences, but you have your life, something which you denied your wife and mother of your children.

Conclusion

[46]     On the count of murder you are sentenced to life imprisonment.    I fix a minimum non-parole period, pursuant to s 104 of the Sentencing Act, at 18 years.

[47]     On the counts of sexual violation you are sentenced to preventive detention with a minimum non-parole period of eight years.  The sentences are, naturally,

concurrent.  Stand down.

Solicitors:

R Stevens, Fanselows, Wellington

Luke Cunningham & Clere, Wellington

“J W Gendall J”