R v Simeon
[2021] NZHC 1371
•10 June 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2019-004-004597
[2021] NZHC 1371
THE QUEEN v
RIKKI-LEE TE MAURIORA SIMEON
Hearing: 10 June 2021 Appearances:
S O’Connor for the Crown
P L Borich QC for the Defendant
Sentencing:
10 June 2021
SENTENCING NOTES OF CAMPBELL J
Solicitors/Counsel:
Paul Borich QC, Auckland Meredith Connell, Auckland
R v SIMEON [2021] NZHC 1371 [10 June 2021]
Introduction
[1] Ms Simeon, a jury found you guilty of the murder of your partner Brendon Hamilton. My job today, on behalf of the community, is to impose a sentence on you for that murder, in accordance with law.
[2] The sentence I impose is not meant to make up for what you did. Ms Simeon, it never could.
[3] I acknowledge Brendon’s family in Court today, and I acknowledge that many of you were here through Ms Simeon’s trial as well in February. I have heard and had regard to what you have said. I saw your statements before today’s hearing. You have lost a beloved son, brother and uncle, someone who lit up the room, who made people laugh and smile even when they were down.
[4] You have also had to speak on behalf of Brendon’s and Ms Simeon’s daughter. Brendon was murdered on her first birthday. She will never know her loving father in the way that she should have been able to. I can say that at least she seems to me to be in good hands with you all. You all have my deepest sympathy, and none of you should feel that you failed Brendon in any way.
[5] I also want to acknowledge what a traumatic experience today has been and will be for you. You have had to relive those awful moments when you heard that Brendon had died. You are also going to hear me talk about the circumstances of Brendon’s death and about Ms Simeon’s circumstances. The law requires me to do that, and in particular to draw comparisons between what happened to Brendon with other cases of murder that have come before this Court.
[6] When I do that, nothing that I say in any way diminishes the loss that you have suffered, and that his daughter has suffered. Nor does it provide any excuse for what Ms Simeon has done. The jury’s job a few months ago was to decide whether, in part, there was any excuse for what Ms Simeon had done, and they found that there was none. So my job today is not to decide whether Ms Simeon is to be excused for her actions. It is simply to decide the appropriate sentence.
[7] Ms Simeon, Brendon’s family’s profound sense of loss, their grief, and their anger, will be obvious to you. The value of Brendon’s life – to his family, his friends, and to the wider community – was incalculable. No sentence that I can impose can make up for his death. What I have to do is give the community’s response to your actions, in accordance with the law that is binding on me.
The offending
[8] You and Brendon were in a relationship for about four years. You had one daughter together. She was living with Brendon’s mother at the time of Brendon’s death.
[9] On 17 May 2019, you and Brendon were at a party. Early the next morning you and Brendon returned home together. At some point the two of you argued in the kitchen. You stabbed Brendon once in the neck with a kitchen knife.
[10] You dropped the knife at the back door and left. The knife had severed an artery in Brendon’s neck. Brendon died from blood loss within minutes. About an hour later a friend discovered Brendon’s body. The Police were called.
[11] You returned home while the Police were there. You told an officer that you had stabbed Brendon. You later told another officer that Brendon had tried to stab you.
[12] You were interviewed by the Police. You said a number of different things to them. These included that you had stabbed Brendon by accident, that Brendon had tried to pull a knife on you, and that you had stabbed him “as a defence”.
[13] The Crown did not allege that you meant to kill Brendon. Rather, the Crown’s case was that you meant to stab Brendon, that you did so knowing that was likely to cause his death, and that you were reckless as to whether he died. The jury accepted all of that, and found that the stabbing was not in self-defence.
Life imprisonment
[14] Ms Simeon, a person convicted of murder must be sentenced to life imprisonment unless, given the circumstances of the offence and the offender, that sentence would be manifestly unjust.1 This is a very high threshold. It will only be in exceptional cases that someone convicted of murder is not sentenced to life imprisonment.2 The first issue I have to decide is whether you have crossed that threshold.
[15] The Crown and Mr Borich have spoken to me on this issue this morning. What they have said has only been a summary of the detailed and careful written submissions that they filed in advance of this hearing. They have also referred to various reports that were filed in advance, such as several reports from psychiatrists, and a report on your personal and whānau background.
[16] I have to make an overall assessment of the circumstances of the offence and of you as the offender.3 Comparisons with other cases can assist, but each case is fact dependent.
[17] I have concluded that, because of a combination of factors that I am going to come to, it would be manifestly unjust to sentence you to life imprisonment. Having said that, I want to immediately say that, as I will explain later, I will be imposing a sentence that will see you spend many years in prison.
[18] The first factors that I have taken into account concern the circumstances of the offence. I accept there was no premeditation. Indeed, the Crown’s case was that, essentially, on that night you snapped. In addition, and as I said earlier, the Crown’s case was not that you meant to kill Brendon, it was a case of essentially recklessness. The gravity of your offence was therefore lower than in the other cases to which counsel referred.
1 Sentencing Act 2002, s 102.
2 R v Rapira [2003] 3 NZLR 794 at [121].
3 R v Rapira [2003] 3 NZLR 794 at [121].
[19] The other factors concern your personal circumstances. I will summarise the relevant points. There is much more detail in the reports that have been provided to me.
[20] You were born in 2000. Your mother was only 14 at the time. She soon separated from your much older father, who was in and out of prison. Your mother then had further children. From a very young age you were often left by your mother to look after your younger siblings. And it seems from the reports that I have been given, that your mother has been largely absent from your life. She seems to have had no involvement that I can see with you in recent years.
[21] Your maternal grandfather was a prominent gang leader. You were raised within that gang’s culture. Drug abuse and family violence were part of your everyday experiences from a young age. A psychiatrist, Dr Duff, says that you have a sense of normalisation of violence, as violence has been so current throughout your life.
[22] There was no stability in your life. You were regularly moved from one home to another, and from one school to another. Unsurprisingly, there was regular state intervention in your care.
[23] You started using cannabis and alcohol when you were around 11. These were readily available at the gang pads you were taken to. By your early teens you were using methamphetamine. Use of such substances was a part of life in your family.
[24] You were 14 when you met Brendon; he was 18. You had a tumultuous relationship. The evidence at trial established that physical violence went both ways. But I do want to make clear, and I think Mr Borich has acknowledged this, that this was far from a violent relationship of the sort that is sometimes characterised as involving a battered woman. You were not that.
[25] You were 17 when you gave birth to your daughter. Custody of her soon passed to Brendon’s mother. Your disappointment at being unable to see your daughter on her first birthday formed part of the Crown case. It was a factor which the Crown said contributed to your anger with Brendon and you snapping that night.
[26] You were only 18 when you killed Brendon in May 2019. Not long after your arrest, you were seen by Dr Goodwin, a psychiatrist. He thought it likely that you were suffering from a primary psychotic disorder. Between June and September 2019, you were admitted to the Mason Clinic. Dr Goodwin says that during that admission you were diagnosed as most likely suffering from schizophrenia. You were prescribed antipsychotic medication.
[27] Another psychiatrist, Dr Cavney, assessed you in May, July and August 2019. He concluded that in the days and weeks leading up to the murder you were likely to have been experiencing significant psychotic symptoms that would be characterised as schizophrenia. Dr Cavney said your psychosis may have influenced your perception of the threat that Brendon posed to you. He was satisfied that you had a number of risk factors that would predispose you to developing a psychotic illness. Those risk factors included your childhood deprivation, neglect and abuse and your early use of cannabis.
[28] Dr Goodwin saw you again in December 2019. He reported that you had responded well to treatment. He asked you about psychotic symptoms that may have been present when you killed Brendon. You specifically denied any hallucinations telling you to harm Brendon.
[29] Another psychiatrist, Dr Duff, who I have already mentioned, saw you in November 2020. She has written a report in which she recounts your traumatic upbringing. She concludes that your normalisation of experiences that others would consider extremely traumatising likely contributed to a degree of disassociation which contributed to you killing Brendon.
[30] Taken individually, none of the factors I have referred to would justify displacing the presumption of life imprisonment. But when these factors are considered together, your case is an exceptional one where a sentence of life imprisonment would be manifestly unjust. You had a deeply flawed, violent and traumatic upbringing. It normalised violence and I think it rather understates things to say that your upbringing was merely deprived. I think depraved would be a more correct term. Your youth means that that upbringing was closely related in time to
your offending. As Mr Borich said, you didn’t have the opportunity to mature before these tragic events. In addition, you were suffering an undiagnosed mental illness. As Mr Borich said, that is not to say that a defence of insanity was open to you, it clearly was not. But it is nonetheless a factor that is relevant in this sentencing. Finally, your offending was impulsive, rather than planned.
[31] The Crown argued that your mental illness should be of little relevance as none of the psychiatrists say that it caused the offending. I agree that it was not a direct cause. But I am satisfied from the psychiatrists’ reports that the illness was a contributing factor. Moreover, I have to make an assessment of all the circumstances. As I have said, it is the combination of the factors that I have referred to that leads me to conclude that a sentence of life imprisonment would be manifestly unjust.
[32] In reaching that conclusion I have taken account of your risk of reoffending. Dr Duff assesses that there is a risk of reoffending. However, the pre-sentence report says you are willing to participate in counselling and treatment programmes which will address violence and alcohol abuse. You will have plenty of opportunity to do so during the term of imprisonment that I am about to impose, and Ms Simeon I implore you to take advantage of those opportunities.
Sentence
[33] Although I will not be imposing a life sentence, a lengthy finite sentence of imprisonment is necessary to satisfy the purposes and principles in the Sentencing Act. This will be a sentence which provides for denunciation, deterrence and community protection as well as addressing your rehabilitation.
[34] Counsel have referred to a range of sentences in their written submissions from similar cases where a finite sentence of imprisonment has been imposed. Mr Borich says the range is between ten and 14 years’ imprisonment. He submits a sentence at the lower end of that range is appropriate in your case. He points to four features of this case in support of that submission. First, he says the offending is less serious than in those cases. Secondly, you were younger than the defendants in those cases. Thirdly, you were suffering from an undiagnosed mental illness at the time of the
offending. Fourthly, a sentence at the lower end of the range will provide for your rehabilitation and you will be a much changed person on release.
[35] I have already taken those factors into account in displacing the presumption of life imprisonment. I accept that they remain relevant in determining the length of your sentence. I must still hold you accountable for what you have done, deter others, and look to the protection of the community. In my view a sentence that appropriately does so is one at the top of the range identified by Mr Borich. While your youth, traumatic upbringing and mental illness diminish your culpability, there are two features that distinguish your situation from the other cases to which I was referred. First, and as I have already said, your mental illness was merely a contributing factor, rather than being the direct cause of your offending. Secondly, there is a risk of reoffending, and community protection requires a sentence that reflects that risk.
[36]Accordingly, I sentence you to imprisonment for a term of 14 years.
Minimum period of imprisonment
[37] Finally, I must consider whether to order that you serve a minimum period of imprisonment.4 This means a period during which you are not eligible for parole.
[38] Ms Simeon, your offending was very serious. Brendon’s family lost a beloved son and brother. His daughter will never know her father. These are actions for which you must be held accountable. It is also necessary the community is properly protected while you have an opportunity to address longstanding and very challenging issues in your life.
[39] I consider a minimum period of imprisonment is necessary to properly hold you accountable for your offending and to protect the community. I will therefore order you serve a minimum period of seven years’ imprisonment before you will be eligible for parole. Once that period expires, it will be for the Parole Board to determine whether you should be released before you have served your full sentence.
4 Sentencing Act 2002, s 86.
Result
[40]Ms Simeon, I sentence you to 14 years’ imprisonment.
[41]You are ordered to serve a minimum of seven years of that sentence.
[42]Please stand down.
Campbell J
8
0
0