R v Sloane
[2013] NZHC 53
•4 February 2013
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI 2012-063-4539 [2013] NZHC 53
THE QUEEN
v
GWENDA LEIGH SLOANE
Hearing: 4 February 2013
Counsel: A F Pilditch for Crown
H S Edward for Prisoner
Sentence: 4 February 2013
SENTENCE OF KEANE J
Solicitors:
Crown Solicitor, Rotorua
H S Edward, Rotorua
R V GWENDA LEIGH SLOANE HC ROT CRI 2012-063-4539 [4 February 2013]
[1] Gwenda Sloane, you appear for sentence, as a result of your plea, for the murder of Michelle Hoffman-Tamm on Wednesday 7 November 2012 here in Rotorua. In the course of that Wednesday night you subjected Ms Hoffman-Tamm to a sustained and unusually ferocious assault during which she died. You also mutilated her.
[2] The Crown contends, and you yourself accept, that you must be sentenced to life imprisonment, and to a minimum term of imprisonment of at least 17 years, unless such a minimum term is manifestly unjust. In that latter respect you rely principally on your guilty plea.
[3] I agree that you are to be sentenced on that basis. I must now say why I consider that to be so. But before I do so, I must first acknowledge the incalculable loss suffered by Ms Hoffman-Tamm's partner and family.
[4] Ms Hoffman-Tamm's partner of 15 years, her two children, her two brothers and her sister, have all completed victim impact statements and her son has read out his statement this afternoon. Each says how much they loved her and how devastated they are by the fact of her death and by the way in which she came to die. That loss, they say, was compounded considerably by the anxiety they felt in the weeks following her death when her fate was unknown, before you admitted your offence.
[5] You, yourself, in your two letters, one to the Court and one to me, and in your pre-sentence report, regret the enormity of your offence and its devastating effect on Ms Hoffman-Tamm's partner and family. You struggle still, you say, to understand why you offended as you did. You were affected by alcohol, you say, and only remember what you did, and why, very generally. You have never offended violently before.
[6] In now sentencing you for your offence, I rely as I must on the statement of facts prepared by the police with which you agree, which relies in part on your admissions as to what happened and in part as to the state of your flat and, more especially, that of Ms Hoffman-Tamm's body when examined forensically.
[7] Shortly after 8pm on Wednesday 7 November 2012, according to the statement agreed, you sent to Ms Hoffman-Tamm, with whom you had an occasional sexual relationship, a text message inviting her to your flat, which is attached to your parents' house. Your parents were overseas at the time. She arrived shortly after and, together, you went to a local liquor store and bought three dozen stubbies of beer. You, certainly, became very intoxicated.
[8] You became enraged, you told the police, when you found, as you believed, that Ms Hoffman-Tamm had taken $20 from your wallet. Or, as you later told the probation officer who assessed you, when you found she had a set of your house keys or a money card you thought you had lost. You say that you hate being lied to. You cannot stand thieves. You say you 'just lost it'.
[9] You attacked Ms Hoffman-Tamm, as you accept, using at least two knives. You stabbed her in the chest with the larger knife, some seven times, causing her death. You continued to assault her after she must have died. You continued to stab her. You punched her to the head and body and hit her with a wooden drawer and timber. You mutilated her by cuts to her throat and face, and by cutting off both her ears, one of which you put in her mouth before gagging her. At some point you tied her hands behind her back and tied fabric over her face.
[10] On the following morning, Thursday 8 November, you say, you woke to discover Ms Hoffman-Tamm's body bound and gagged and half naked in the kitchen. You realised you were responsible. You could not, you say, come to terms with the enormity of what you had done. You called work to say you were unwell. You did nothing that day, you say, because you felt overwhelmed. You finished off the beer from the night before. You dragged Ms Hoffman-Tamm's body outside.
[11] On the following day, Friday 9 November 2012, you set about avoiding any responsibility for your offence. You wrapped Ms Hoffman-Tamm's body in plastic bags, cut into sheets and secured by duct tape. You lifted her body into the back of your parents' station wagon. You put in there also bags of bloodied bedding, towels
[12] One hundred and twenty kilometres from Rotorua on the outskirts of Murupara, down a small secluded forestry road, you found a 1.5 metre empty ditch surrounded by discarded household waste. You put Ms Hoffman-Tamm's body and the bags into the ditch. You covered them with discarded timber, clear light roofing and two old ovens and dirt, concealing them completely.
[13] On your return to Rotorua you cleaned your flat as thoroughly as you could. You cleaned the carpet using a hired carpet cleaner, and you used a variety of other cleaning agents. You repainted the parts of your flat most affected, especially in the kitchen, and items like the wooden drawer used in the assault. You replaced the shower curtain.
[14] Over the next few days, you returned the carpet cleaning machine. You disposed of your cleaning materials, in Council bags, in a nearby street. You disposed of your shoes in a clothing bin. You took Ms Hoffman-Tamm's bicycle to another suburb, where you left it in a bike rack.
[15] After Ms Hoffman-Tamm was reported missing by her family on 9
November 2012, the police spoke to you twice. You denied any part in her disappearance. But, once they discovered your 7 November text message, on 22
November they interviewed you again. You then admitted your offence.
[16] In your account to the police you described why and how you offended as you did, very generally. You were more precise as to what you did afterwards and you took the police to the place where you had disposed of Ms Hoffman-Tamm's body. They would not have discovered it otherwise. Once charged, you pleaded at the first practicable opportunity.
Sentencing principles
[17] Under our law, as you know, you must for your offence be imprisoned for life unless the circumstances of your offence or your own circumstances make that
manifestly unjust.[1] You accept the justice of a sentence of life imprisonment.
[1] Sentencing Act 2002, s 102.
[18] The offence of murder, as you know also, attracts a minimum period of imprisonment usually of not less than ten years.[2] But as you know and accept, and as I find, your offence was, as the Crown contends, marked by 'a high degree of brutality ... depravity, or callousness.[3] You must serve a minimum period of imprisonment of at least 17 years, unless that would be manifestly unjust.
[2] Section 103(2).
[3] Section s 104(1)(e).
[19] In R v Williams,[4] a decision concerning two appeals, the Williams and Olson appeals, the Court of Appeal held that whether a minimum term of at least 17 years must be imposed is to be assessed in two stages.
[4] R v Williams [2005] 2 NZLR 506 (CA); (2004) 21 CRNZ 352 (CA), at [52] - [54].
[20] At the first stage, I must compare your offence with offences of murder generally, regardless of whether the minimum term imposed was above or below 17 years, conscious always of the statutory presumption that where a murder is highly brutal or callous a minimum of at least 17 years will almost always be called for. To make that comparison, I will use the two murders in the Williams decision as comparators.
[21] Then, at the second stage, I must stand back and consider whether there is some factor relating to your offence or to you, which might nevertheless make such a minimum term manifestly unjust. As to that, you rely wholly or principally on your early guilty plea and distinctly, though to a lesser extent, on the remorse you have felt increasingly since your offence.
[22] In principle, a discount from a minimum starting point does not differ from a discount from a starting point for a finite sentence.[5] But in Williams the Court of Appeal held that in deciding whether to grant a discount and how much, the presumptive minimum is only to be departed from exceptionally where the interests
of justice plainly require.
[5] R v Walsh (2005) 21 CRNZ 946 (CA) at [46].
[23] Depending on how early a guilty plea is entered, and the extent to which it amounts to a free and frank admission, and is not simply dictated by the strength of the Crown case, a discount for plea can be as much as 25 per cent, and remorse can warrant a separate discount.[6]
[6] Hessell v R [2011] 1 NZLR 607; (2010) 24 CRNZ 966 (SCNZ).
[24] In Williams, the Court of Appeal held that the appellant Williams was entitled to a discount for his early guilty plea of three years, from a starting point of 20 years to 17 years, and the appellant Olson to a two year discount from 17 to 15 years. Other cases are broadly consistent.[7] Everything depends on the case.
[7] R v Smith HC Dunedin S03/1402, 15 May 2003; R v Aporo HC Palmerston North CRI 2005-054-2872, 20 October 2006, R v Namana [2001] 2 NZLR 448 (HC); (2000) 18 CRNZ (HC), R vWilliams, supra.
[25] For completeness I should also mention that provocation can be a reason why a minimum term of 17 years or more could be manifestly unjust.[8] But for that to be so the loss of control would have to be established. It would have to be sudden. It would have to be justifiable. You do not advance that as a basis for a less than presumptive minimum term.
Brutality, depravity and callousness
[8] R v Hamidzadeh [2012] NZCA 550.
[26] Your offence, I am satisfied, did involve a high level of brutality and callousness when compared with other murders, including those in which a heightened minimum term has been imposed, most especially the two Williams comparators.
[27] In your sustained attack on Ms Hoffman-Tamm in at least three areas of your small flat, you used two knives. Using the larger of the two knives, you brought about her death by stabbing her seven times to the chest. You then stabbed her 20 more times. Still using the knives, it seems, you scraped her back and neck, causing abrasions. You assaulted her even more extensively. You caused her significant injuries, by punching her to the face and head and by hitting her head with a wooden
drawer and timber. And at some point you bound her hands behind her back.
[28] What distinguishes your offence from others, I consider, is that you went still further. You made the cuts across her throat and across her face near the corner of her mouth and towards her ear. More extremely still, you severed her ears and placed one in her mouth before gagging her. Your intent can only have been to mutilate her. That, the Crown says, was not simply brutal and callous, it was depraved. It was certainly unusually brutal and callous to a high degree.
[29] The two offences, the subject of the Williams decision, were I consider less brutal and callous than your offence by a significant measure and in each the Court of Appeal held that at least a 17 year minimum term was required. In the case of the appellant Williams, it held that it should stand at 20 years because his victim was a young child.
[30] That independent statutory factor does not arise in your case. But the ferocity of your assault on Ms Hoffman-Tamm, the extent to which you mutilated her and the way in which you dealt with her afterwards, I consider, does warrant a 20 year starting point also, subject to any discount for your guilty plea and for remorse.
Guilty plea and remorse
[31] I do not consider you are entitled to any discount for remorse. You showed no tangible remorse in the days following your offence. Instead, you set out as thoroughly as you could to conceal your offence and only gave that up when confronted with your compromising text message. That heightened the suffering of Ms Hoffman-Tamm's family. I accept that you feel remorse now, and increasingly so. But that cannot justify any discount, especially given the seriousness of your offence.
[32] You are entitled to a discount for your guilty plea, which you made at the earliest opportunity, eight days after your first appearance, and you seek a full discount, 25 per cent potentially. That, however, would be a discount just short of five years, well beyond any discount thus far allowed, and that is the first reason for pause. The highest discount given thus far has been three years, that allowed the appellant Williams. A three year discount is, I think, what you too are entitled to.
[33] There are also two other reasons why I consider no greater discount is warranted. One is that, once you accepted how compromised you were by your text message to Ms Hoffman-Tamm on the day she died, your plea was largely dictated by the strength of the Crown's case against you. The other is that, as in the case of the appellant Williams, your offence is so serious that as a matter of policy the 17 year minimum ought to apply.
Conclusion
[34] Ms Sloane, in sentencing you, I do accept that your offence was entirely out of character. I accept that you have never offended violently before. I accept, as is said in your pre-sentence report, that those close to you regard you as a person not given to violence, quite the contrary; and a person of real worth.
[35] But as they also say, and you accept, alcohol is an issue for you. When you are affected by alcohol you can, as you did on this occasion, act in a way which is entirely out of character. That said, you committed this offence and it is for this offence that I must now sentence you.
[36] You will be sentenced to imprisonment for life, subject to a minimum term of imprisonment of 17 years. You have already been warned as to the consequences on sentence of any further serious violent offence or murder. I need not repeat that
warning.
P.J. Keane J
7