R v Smith

[2013] NZHC 2782

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-091-3576 [2013] NZHC 2782

THE QUEEN

v

ERNEST SMITH

Hearing:                   23 October 2013

Counsel:                  G J Burston for Crown

B Hunt and C J Stevenson for Defendant

Sentence:                 23 October 2013

SENTENCE OF RONALD YOUNG J

[1]      Mr Smith you have pleaded guilty to murder and I now have to sentence you. You murdered Ms Taufale with whom you had been in a relationship.  You and she have a nine month old child.  In 2012 the two of you separated.  The arrangements were that you could only visit her and your son by prior arrangement with another family member present.  When you and she separated she continued to live in the house in Sunrise Boulevard, Tawa.  She asked you to return your key to the house but you did not do so.

[2]      Shortly after mid-day on 14 November 2012 you left your work and went to your home in Karori.  There you fashioned a make shift hood.  You left your house with the hood which required some effort to make, you had gloves, and a blue

handled gib knife. You took a battery operated drill and some screws.

R v SMITH [2013] NZHC 2782 [23 October 2013]

[3]      You drove to the Railway Station in Tawa and parked your car there.  You then walked to the Sunrise Boulevard house.   There was no one at home.   You entered the house using your key.  You then used a ceiling hatch in the hallway and climbed into the roof space.  You tied strapping to a rafter so you could climb in and out of the ceiling space undetected.  You then drilled two screws into the back of the ceiling hatch so you could use them to open the hatch from the inside of the roof cavity once you were concealed inside.

[4]      You then stayed in the roof space waiting for Ms Taufale to return home. Later she did so with your child and with her 15 year old son from a previous relationship.  Eventually the two boys and Ms Taufale went to bed and fell asleep.

[5]      You then opened the ceiling hatch and lowered yourself to the hallway.  You were wearing gloves, the hood and took the gib knife with you.  You made your way to Ms Taufale’s bedroom.  There, there was a violent struggle.  You stabbed and cut Ms Taufale a number of times to her body and ultimately dragged the knife across her throat causing a deep and jaggered cut to her neck.  Her jugular vein and carotid artery were severed and eventually she bled to death.  During the struggle it seems your hood was removed and it was later found in the bedroom.

[6]      You then went to a neighbouring spare bedroom and created a false point of entry to make it look as though someone had unlawfully entered the house and committed the murder.   You left that window ajar and dabbed Ms Taufale’s blood around the scene.

[7]      You then returned to your car drove to an isolated area where there was a stream  and  threw  your  knife  into  the  stream.  When  you  returned  to  your  car, however, you could not locate your car keys.   And so you then went back to the address where you had killed Ms Taufale and took her car.  You drove it to Karori and abandoned it in a remote area.

[8]      Ms Taufale  was  found  lying  on  the  floor  in  the  master  bedroom  by her

15 year old son the next morning.  She was dead.

[9]      This  sentencing  has  occurred  after  you  pleaded  guilty  to  murder  on

17 September 2013 after a sentence indication.

[10]     The presentence report records that you were brought up in a dysfunctional family with a physically abusive father in Jamaica.   Your mother apparently abandoned you at age 12.   You have little formal education and have  you have difficulty reading and writing.   You subsequently met Ms Taufale in the Cayman Islands and then came to New Zealand.

[11]     Your explanation to the probation service that you had come to the house to commit suicide, in my view, does not match the facts.  You were in the ceiling space for many hours and only came down after Ms Taufale had gone to sleep.   It is difficult to understand why you would need a knife if you wished to commit suicide and it is even more difficult to understand why you undertook to disguise your crime by creating a false entry to the house including the use of oil which was designed to disguise the presence of your fingerprints.

[12]     The Crown say that s 104 of the Sentencing Act 2002 which mandates a minimum period of imprisonment of not less than 17 years applies here.   That is because of the calculated planning; unlawful entry into a dwelling place; a high level of  brutality,  cruelty  and  callousness;  and  the  vulnerability  of  the  deceased, Ms Taufale.

[13]     In particular they say there was significant planning with the making of a hood, taking the hood, gloves and knife to the scene of the murder, the effort you undertook to hide yourself in the ceiling including bringing with you a drill and screws and then afterward attempting to create a false trail.  They also point to the fact that your unlawful entry meant that you entered your ex partner’s residence when it had been made clear to you that you were not entitled to do so.  And finally they stress the brutality of the murder involving multiple stab wounds.

[14]     They say, therefore, a proper starting point is in a range of 19 to 21 years and a reduction only for your plea of guilty is justified from that.

[15]     I have read and take into account your counsel’s submissions at the sentence indication  hearing and  at  this  hearing.   Your  counsel  suggested  at  the sentence indication hearing that there were not sufficient factors here to justify a minimum sentence of imprisonment of 17 years.  The planning was said to be for your suicide but even if rejected she submitted that there was not significant detailed planning. Secondly, she stressed that it was not unusual for you to be at the deceased’s home so the unlawful entry factor was not one of significance.  And finally, the brutality of the killing was not such as to elevate it to one requiring a minimum  period of

17 years.

[16]     This was, in my view, a carefully planned murder.  The planning and patience involved was sustained over many hours.  The attack was planned to coincide with Ms Taufale’s vulnerability when she slept.  It was planned to try and disguise who had  committed  the  murder.     The  murder  involved  the  unlawful  entry  into Ms Taufale’s house.  You knew you were not entitled to be there without invitation and you were certainly not entitled to be hiding in the roof space of the house till the family slept.

[17]     I am also satisfied the brutality of the murder was high.   You attacked a sleeping woman.   You stabbed and slashed her at least 17 times.   She suffered significant injuries and then you cut her throat.  This was a killing without mercy.  A killing of a woman who had born you a child.  You left Ms Taufale to bleed to death knowing that she would be likely discovered by her 15 year old son in the morning. One can only imagine the trauma that he must have suffered.

[18]     I accept that you have been struggling to cope in New Zealand and there were no doubt factors which contributed to this killing in your personality.  It seems you did have a particularly rough childhood.  You have limited intellectual functioning and poor literacy.  There is evidence of long term depression.  No doubt these factors all played a part in your offending.   But in the end it seems to me that you were angry and frustrated at Ms Taufale’s decision to limit her seeing you and limit you seeing her son and that you reacted aggressively and violently.

[19]     I want to acknowledge now the victims present here today, family and friends of Ms Taufale.  I want to acknowledge the courage and dignity of the victim impact reports which I have read and which have influenced me.

[20]     The victim impact of this murder is particularly cruel.  Your son has lost his mother and effectively his father through your actions.  Ms Taufale’s 15 year old son has lost his mother and suffered, as I have said, the trauma of discovering his mother having bled to death at your hands.

[21]     I have read particularly Ms Taufale’s mother’s victim impact report.  She has recounted the terrible loss the family feel, it has changed and will change their lives forever.

[22]     I acknowledge also the victim impact reports from Ms Taufale’s father and sisters.  They illustrate the great kindness this family showed you and your reward was to kill their daughter and their sister.

[23]     I am satisfied that at least three of the factors are present here satisfies me that the minimum period of 17 years’ imprisonment is triggered in your case.  The calculated planning, the unlawful entry and the brutality and  callousness of the killing.   These three factors convince me that the minimum non parole period is appropriately in the region of 18 to 19 years before I consider the only mitigation, in my view, your guilty plea.

[24]     This plea came about 11 months after you were charged.   Only a modest deduction could, therefore, be allowed.   Neither your guilty plea nor any other personal circumstances convince me that it would be manifestly unjust to reduce your minimum period of imprisonment to below 17 years.  But the main sentence I impose on you today for murder is one of life imprisonment.

[25]     I order  you  to  serve  at  least  17  years’ imprisonment  before  you  can  be

considered for parole.

[26]     Please stand down.

Ronald Young J

Solicitors:

Luke Cunningham & Clere, Wellington

B Hunt, Barrister & Solicitor, Wellington