R v Smith
[2016] NZHC 2581
•28 October 2016
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2016-087-304 [2016] NZHC 2581
THE QUEEN
v
WYJUANA SMITH
Charge:
Plea:
Murder
Guilty
Counsel:
G C Hollister-Jones for Crown
G R Tomlinson for PrisonerSentenced:
28 October 2016
SENTENCING NOTES OF BREWER J
Solicitors: Hollister-Jones Lellman (Tauranga) for Crown
Gowing & Co (Whakatane) for Prisoner
R v SMITH [2016] NZHC 2581 [28 October 2016]
Introduction
[1] Mr Wyjuana Smith, you appear for sentence having pleaded guilty to the murder of Todd Branch.
Background
[2] When you pleaded guilty, you accepted that on 1 March 2016 you went into Mr Branch’s house during the night and killed Mr Branch with a hammer which you brought to the house with you. You also accepted that you struck Mr Branch many times with the hammer, mostly while Mr Branch was helpless on the floor. But what you told the Police about why you were at the house and what led to the attack was not accepted by the Crown. That disagreement led to a disputed facts hearing which I presided over. I will summarise the relevant facts as I found them to be.
[3] In late 2015, you, Mr Branch and others were living as flatmates at 36 Hall
Street in Rotorua. The house belonged to Mr Branch’s mother. On 21 February
2016, Mrs Branch evicted you and the other flatmates. She was upset with the way her house was being treated. There were holes in the interior walls, for example, some of which you caused. It seems you were prone to fits of anger and you would strike surfaces such as walls.
[4] You went to live at 15 Whittaker Street which is about 1.6 km from 36 Hall Street. Mr Branch remained living at 36 Hall Street by himself. You and Mr Branch were not on good terms at the time of eviction. There had been conflict between you, including one incident where Mr Branch pushed you while in the passage of the house. On the night following the evictions, you and one of the other evictees returned to the house and stole two cannabis plants belonging to Mr Branch. Mr Branch was angry and you were told that he had threatened to kill you.
[5] Then, on the evening of 1 March 2016, you were in the garage at
15 Whittaker Street with some of the other evictees. You noticed a red hoodie which you associated with Mr Branch and which was in the possession of one of the others. The sight of that hoodie made you angry at Mr Branch. One cause of your anger, perhaps the principal cause of your anger, was your belief that Mr Branch was
spreading rumours about you. You asked the others whether you could do something to Mr Branch. You were told it was not worth it. You seemed to calm down.
[6] But at around 10:30 pm that night, you said you were going for a walk. You
said you were going to Mr Branch’s. You took a hammer with you. You arrived at
36 Hall Street and entered the house. Mr Branch was watching television. He did not invite you into the house and he did not know you were there. You waited for him in the kitchen. You waited for about an hour while Mr Branch continued to watch television. Eventually he came to the kitchen. You confronted him and hit him in the head with the hammer knocking him to the ground. Mr Branch stayed down for a bit and then tried to get up. That is when your tendency to sudden rage asserted itself. You rained blows on his head and body. The total number of strikes identifiable from the pathology was 24 blows to the face, head and body, some of which left circular indentations in Mr Branch’s skull and face.
[7] I found that when you left 15 Whittaker Street, and while you were waiting in the kitchen, you intended to attack Mr Branch with the hammer. You acquired the murderous intent necessary for the crime of murder once you attacked with the hammer.
Victim impact statements
[8] You have just heard the victim impact statements. They tell of the great loss the Branch family has suffered and the very serious effects your killing of Mr Branch has had on them. I hope you listened carefully, and I hope you are able to understand just what you have caused. What you have heard is the anguish of a family that has lost one of its members. I know you never had such a family, Mr Smith. But it has strength, even in loss, as you have just seen.
Personal circumstances
[9] I turn now to your personal circumstances. Mr Smith, you are still 18 years old and you are of Maori and Rarotongan descent, although you do not have a cultural connection with that descent. You have had a difficult past which is described in the psychiatric report prepared by Dr Dean. You and your twin sister
were removed from your mother’s care when you were 11 years old. Before that you were raised predominantly by your mother in an environment of substance abuse, physical, sexual and emotional abuse and general neglect. You were taken into the care of CYFS and lived in a number of foster homes and whanau and institutional placements. You have had an ongoing lack of stability in your life and have never had a secure figure to whom you could attach yourself. You have had issues with alcohol and drugs and you have self-harmed in the past. In 2012 you were assessed by Psychiatric Services. You were diagnosed as having persistent mild depression and social anxiety, and abusing alcohol and cannabis. You did not take medication and did not engage in psychological treatment from mental health services at that time. Dr Dean’s opinion is that you now have features consistent with antisocial personality disorder.
[10] Your criminal record starts when you were 15 years old. You have eight convictions for burglary and when you were 16 you injured someone with intention to injure them. Worryingly, you seem to like carrying weapons. You have three convictions related to that.
Pre-sentence report
[11] I have read the pre-sentence report. The only positive aspects are that the report writer assesses you as being “clearly remorseful” and noted that you had indicated a willingness to participate in a Restorative Justice Conference if this was an option.
Discussion
[12] Those are the facts and the circumstances, Mr Smith. I must now apply the law. I make it clear that in sentencing you for murder I am not trying to make up for the loss of Mr Branch. No sentence could ever do that. But neither is sentencing you about revenge. I must sentence you in accordance with the law. In your case, both the Crown and your lawyer, Mr Tomlinson, acknowledge that the only sentence I can impose on you is the maximum sentence prescribed by the law. It is a sentence of life imprisonment. What I have to decide today is the length of time you must
serve before the Parole Board can consider you for parole. That is what I and the lawyers refer to today as “the minimum period of imprisonment”.
[13] The minimum period of imprisonment must be at least 10 years.1 The law also says that in some cases of murder, the minimum period must be at least 17 years unless that would be manifestly unjust. That includes cases where the murder involves unlawful entry into a dwelling place2 or is committed with a high level of brutality.3
[14] I have found that you unlawfully entered 36 Hall Street on the night of the murder. That means I must impose a minimum period of 17 years’ imprisonment unless that would be manifestly unjust. Mr Tomlinson accepts this. However, he does not accept the Crown’s argument that the murder was committed with the level of brutality that would, in general, also require a minimum period of 17 years’ imprisonment.
[15] The lawyers have referred me to a number of cases. I will list them in the written record of this sentencing.4 However, the question of whether the brutality involved in your offending is of a “high level” requires me to make an evaluative judgment.5 In my judgment, and having regard to the cases, your offending was at the “high level” of brutality and meets the threshold for the 17-year minimum term. I consider that your attack with a hammer on an unsuspecting victim, begun and then continued, does reach the level of brutality for which Parliament generally intends a
17-year minimum term to be appropriate. By your own account, you first struck Mr Branch in the head with the hammer, knocking him to the ground. After a while, he tried to get up. That is when you struck him about 23 times to the face, head and body, with very great force, even though he was helpless on the ground.
[16] I turn now to consider whether a minimum period of 17 years would be manifestly unjust in your case. The Court of Appeal has said I should follow a two-
1 Sentencing Act 2002, s 103.
2 Sentencing Act, s 104(1)(c).
3 Sentencing Act, s 104(1)(e).
4 R v Morris [2012] NZHC 616; Lavemai v R [2016] NZCA 363; R v Schofield [2015] NZHC
2109.
5 R v Gottermeyer [2014] NZCA 205 at [77].
step process.6 First I should consider how your case relates to those where the
10 year minimum period of imprisonment would usually be imposed. That means I should consider all the factors that make your offending more or less serious. I should consider the circumstances of your offending and your personal circumstances. I should bear in mind that Parliament has intended that murders involving a high level of brutality or unlawful entry should attract minimum periods of at least 17 years.
[17] In terms of the offending itself, I find that it is aggravated by the following factors:
(a) The offence was committed while you were subject to a sentence of supervision.7
(b)There was an element of premeditation in your offending in that you went to 36 Hall Street with a hammer with the intention of harming Mr Branch and waited an hour for the opportunity to do so.8 You wanted him to suffer.
(c) The offending involved unlawful entry into a dwelling house.
(d)The offending involved the use of a weapon and a high level of brutality.
[18] In those circumstances, I am satisfied that a minimum period of 17 years or possibly higher would be justified in the absence of mitigating factors.
[19] But against this, there is a number of factors which reduces your culpability. First, and principally, there is your youth. You were only 18 years and six weeks of age at the time of your offending. Then, there is your dreadful upbringing and the
psychological difficulties described by Dr Dean. Finally, there is your guilty plea
6 R v Williams [2005] 2 NZLR 506 (CA) at [52]-[54].
7 Sentencing Act, s 9(1)(c).
8 Sentencing Act, s 9(1)(i).
which was entered at the earliest opportunity, although the evidence against you was
overwhelming.
[20] It follows that I agree with your lawyer and the Crown’s lawyer that a minimum period of 17 years would be manifestly unjust. There is a number of cases where young people have committed murder in similarly brutal circumstances and the Courts have consistently held that a minimum term of imprisonment of 17 years would be manifestly unjust. I will list them in the written record of this sentence.9
[21] The Crown says that your minimum period of imprisonment should be in the region of 14 years. Your lawyer says it should be 11 years.
[22] In making my decision I have to consider generally the cases which the lawyers have referred to me, the principles and purposes of sentencing laid down by Parliament, as well as the arguments made by the lawyers.
[23] This is what I find particularly relevant:
(a) Your youth. You are 18 years old. I must give that factor real weight.
The Parole Board should be given the opportunity to assess you at the earliest reasonable date. But what is the earliest reasonable date is influenced by my assessment of you. You are not an ordinary 18 year old. You have been very damaged by your childhood. You have psychological problems that increase your risk of uncontrolled violence. You already have a significant criminal record and a worrying habit of carrying weapons.
(b)I do not accept you are truly remorseful. Not in a meaningful way that I could give weight to. The disputed facts hearing was an attempt to minimise and explain your violence. Your psychology makes
remorse unlikely.
9 Churchward v R [2011] NZCA 531; R v Churchis [2014] NZHC 2257; R v Pomare [2016] NZHC 1346; R v Te Wini [2012] NZHC 1593.
(c) And, of course, the facts of your attack on Mr Branch, including the element of premeditation.
[24] Subject to adjustment for your plea of guilty, I adopt a minimum period of imprisonment of 14 years.
[25] You pleaded guilty at the first available opportunity. But the evidence against you was very strong and you then caused a mini-trial aimed at reducing your blameworthiness. I will reduce the minimum period of imprisonment by one year, making an end period of 13 years.
[26] Mr Smith, I want to be very clear about one thing. I am not sentencing you to
13 years’ imprisonment. I am sentencing you to life imprisonment. That means what it says. Unless you can persuade the Parole Board that it is safe to let you out, you will spend the rest of your life in prison.
[27] Now, in 13 years the Parole Board will make its first assessment of you. The sort of man it sees in you will depend on the effort you put in to engaging with the programmes that will be offered to you. The Parole Board will be concerned, as I am, that your history to this point shows an unwillingness to take responsibility and a psychological condition that means you are likely to be violent. Mr Smith, if that is still you in 13 years’ time, the Parole Board will not let you out.
[28] I appreciate that you are 18. I do not expect you to understand what I am trying to communicate to you until you are older. So, just remember what I have said. Whether you are ever released from prison will depend on the work that you do to deal with the effects of your past.
Sentence
[29] Mr Smith, would you please stand.
[30] I sentence you for the murder of Todd Branch to life imprisonment. I direct that you are to serve a minimum period of imprisonment of 13 years.
[31] You may stand down.
Brewer J
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