R v Somerville HC CHCH CRI 2009 009 14005

[2010] NZHC 2

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CRI 2009 009 14005

REGINA

v

JASON PAUL SOMERVILLE

Hearing:         29 January 2010

Appearances:  B M Stanaway for Crown

D C Ruth for Prisoner

Judgment:      29 January 2010

SENTENCING REMARKS OF CHISHOLM J

[1]      Jason Somerville you have pleaded guilty to two counts of murder.  The first

count arises from the murder of your neighbour, Tisha Lowry, aged 28 years, on 25

September 2008.   The second, to the murder of your wife, Rebecca Somerville, aged

25, on 30 August 2009.   Both murders were committed at your home. Tisha’s body was buried under the house for around a year and Rebecca’s body was buried under your house for around a month.

[2]      Before summarising the facts I should record that it has been agreed by your counsel that I may sentence on the basis of the police summary. That police summary  reflects  the  three  statements  that  you  made  to  the  police  in  September 2009.   More recently, when speaking with the probation officer and the psychologist and psychiatrist, you provided different versions of events.

R V SOMERVILLE HC CHCH CRI 2009 009 14005  29 January 2010

[3]      There  has been  a suggestion that Rebecca’s death was  an accident.   But  in terms  of  s24(1)(b)  of  the  Sentencing  Act  2002,  murderous  intent  is  an  essential ingredient of murder.  Given your guilty pleas I am accordingly obliged to sentence on  the  basis  that  you  had  the  necessary  murderous  intent. In  any  event,  as Mr Stanaway noted in his submissions, there is nothing to suggest that the summary based on your earlier statements is not reliable and accurate. I have checked again this morning with Mr Ruth to make sure that I can sentence on the basis that there are no disputed facts in terms of s24.

[4]      The facts are these.   On 25 September 2008 Tisha went to your home.   She lived two doors away, and it seems that she had been to your home previously.  You strangled her and stuffed underpants into her mouth.  You then had sex. Later that day you put her body under the floor of your house.  The following day there was a further sexual violation before you buried her.

[5]      On 30 August 2009 you strangled your wife after  she  refused  sex. Again, underpants were stuffed into her mouth and there was sexual violation. You buried your wife  under  the  house and  sent  the  police on a false trail  by  reporting  her as missing. On 3 September you admitted killing both women. Your explanation was that you were angry with Tisha and as far as I can gather this was because she would not leave, and you were angry with Rebecca because she refused sex.

[6]      You are 33 years of age.   Your only previous conviction is one for a traffic offence in 2002 which is obviously irrelevant to the present sentencing.

[7]      According  to  the  probation  officer  you  displayed  no  remorse  of  victim empathy.           Mr  Prince,  the  psychologist,  reported  that  the  murders,  including  the sexual component on both occasions, indicates the beginning of a very  serious and disturbing pattern.  He considers that you are prone to further violence and there is at least a moderate risk of reoffending sexually.

[8]      Dr Earthrowl, the psychiatrist, found no signs or symptoms of any major mental illness. But he did report significant symptoms relating to brain trauma and personality  difficulties (Mr Ruth has mentioned the various  accidents  that  are

reported in detail in the psychiatrist’s and psychologist’s reports). According to Dr

Earthrowl, but looking at this over the short term because of the difficulties of doing

so  over  a  long  term,  there  is  a  substantial  likelihood  of  further  sexual  or  violent offences.

[9]      The victim impact statements. There are 13 statements and most of the victims have expressed their views today either in person or through someone else. Nothing that I can say will reduce the understandable anger and grief they feel. The murders that you have committed have left the Lowry and Chamberlain families with

an irreplaceable loss.   They have also left children without mothers.   It seems that despite  the  devastation  and  loss  you  have  caused  you  cannot  bring  yourself  to express  remorse  and  indications  are  that  you  have  not  got  any  empathy  with  the victims. For  my  part,  Mr  Somerville,  I  find  this  absolutely  incomprehensible. Perhaps more significantly, it provides an ominous indication in terms of future risk.

[10]     Originally the Crown was going to seek preventive detention.  It now accepts that I have no jurisdiction, given that the only counts before the Court are counts of murder. I agree. As Mr Stanaway explained, there are two reasons:  one, murder is not a qualifying  offence  under  s87(5); two, in terms of  s87(2)(c)  preventive detention is based on the likelihood of the offender committing a sexual or violent offence  if  the  person  is  released  at  the  sentence  expiry  date. In  the  case  of  life imprisonment there is no sentence expiry date.

[11]     So  I  have  to  perform  two  functions  today: first,  to  sentence  you  to  life imprisonment and I do so;  second, to determine the minimum non-parole period.  In other words, the minimum that you must serve in prison.  As Mr Stanaway said, the fact  that  I arrive  at  a  minimum  period  does  not mean  that  you  will  necessarily be released at that time or, indeed, ever.

[12]     Under s103(2) I must impose the minimum  term necessary to satisfy all or any of the following purposes. First, to hold you accountable for the harm you have done, and that’s really immeasurable. Secondly, to denounce your conduct which has been despicable. Thirdly, to protect the community. You might have heard Mr Stanaway and I discussing protection of the community. In his written submissions

Mr   Stanaway  expressed   the   view   that   the   protection   of   the   community  was fundamental.  I agree.

[13]     If s104 of the Act is triggered I must impose a minimum non-parole period of

at least 17 years  unless  it  would  be  manifestly  unjust to do so. There is  no suggestion that s104 is not triggered in this case or that a sentence of at least 17 years would be manifestly unjust.  In terms of paragraph (h) of s104 the two murders are enough to bring the section into play. But in addition the high level of depravity by virtue of the sexual dimension brings paragraph (e) into play as well. The fact that,

as  I  understand  it,  this depravity  occurred  after  death  does  not  prevent  me from taking the sexual dimension into account: R v Weatherson   (High   Court, Christchurch Registry,  CRI 2008 012 137, 15 September 2009) at [31].

[14]     Arriving at a starting point in cases like this is extremely difficult. Comparisons with other cases are also difficult but inevitable because there has to be some consistency in sentencing. Your offending must be towards the most serious end of the available spectrum. I agree with Mr Stanaway that the aggravating features  can be summarised in this way: two murders  on separate occasions  with strong  similarities in terms of the strangulation the use of panties, the sexual violation  and  the  burying  of  the  bodies.  I also  agree  with  Mr  Stanaway  that  the sexual dimension is callous and depraved. And in the case of Rebecca there is also the domestic dimension which to my mind adds to the gravity of the offending.

[15]     In his written submissions Mr Stanaway analysed 12 cases involving double murder.   In  nine  of  those  cases  the  two  deaths  arose  out  of  the  same  sequence  of events and the starting point adopted by the sentencing Judges for the minimum non- parole period ranged from 18 and a half years to 25 years.  However, these murders were almost a year apart and to my mind the cases that provide greater assistance on this  occasion  are  those  where  there  have  been  two  murders  on  entirely  separate occasions.

[16]     In R v Burton (High Court, Wellington Registry, CRI 2007 085 736, 3 April

2007) the starting point adopted by the sentencing Judge was 26 years.   And in R v

McKenzie [2009] NZCA 169 the effective starting point was 25 years, that sentence

having been endorsed by the Court of Appeal.  The third case involving murders on separate occasions was R v Samoa and Johansson (CA 85/04, CA138/04, 4 August

2004).   In  that  case  the  starting  points  were  22  and  23  years  but  neither  of  those prisoners actually pulled the trigger.

[17]         The starting point advanced by Mr Stanaway is 26 years. Mr Ruth, understandably, has not attempted to advance any figure on your behalf. I agree with the starting point proposed by the Crown. To my mind R v McKenzie has the closest parallels and is particularly helpful especially where that sentence was endorsed by the Court of Appeal. The effective starting point there, as I have already mentioned, was 25 years. But I need to take account of the sexual dimension in this case and the domestic nature of the offending in Rebecca’s case.

[18]     Once  one  takes  into  account  the  sexual  dimension,  which  is  really  sick beyond description, a starting point of 26 years can be justified and I adopt it.

[19]     The discount that should be allowed   for   your   guilty   plea   presents considerable  difficulty. Counsel  have  grappled  with  those  difficulties  and  have assisted  me  considerably  with  their  submissions. In  broad  terms  the  Crown’s position is that, given the starting point of 26 years, you ought to receive a credit of between 10% and 20% of the difference between the 10 years, which is the statutory minimum, and the 26 years i.e. 10% to 20% of 16 years. Mr Ruth questions whether the discount proposed by the Crown is sufficient.

[20]     The case that provides the greatest assistance is the relatively recent decision

of the Court of Appeal in R v Hessell [2009] NZCA 450 .  In broad terms I draw the following  conclusions  from  that  decision.   First,  the  discount  is  very  much  at  the discretion of the sentencing Judge but there can, of course, be no suggestion that that discretion  is  entirely  unfettered. Secondly, the  approach  that  Mr  Stanaway  has adopted might be of assistance to sentencing Judges.  Thirdly, as far as the Court of Appeal is concerned this is unfinished business.   And, fourthly, discounts of one to two years that have been allowed in the past might have been too light.

[21]     Having  weighed  all  the  considerations  I  have  decided  that  the  appropriate discount for the guilty pleas is three years.   That represents just a little under 20%. The fact that there is not a full 33 1/3% discount reflects a number of factors.  First, despite Mr   Ruth’s submissions, I do not believe that it could be properly said that you  entered  your  guilty  plea  at  the  first  available  opportunity. Second,  there  is strength in Mr Stanaway’s submission that a finding of guilt was almost inevitable. Third, there is the absence of remorse or victim empathy.  And, fourth, while I agree with all that Mr Ruth said, and indeed Mr Stanaway said, about the importance of encouraging guilty pleas and the benefits to families where there are guilty pleas, it seems to me that there is a distinction, perhaps not great, between a situation where a victim is spared the ordeal of giving evidence at trial, and the murder situation where no victims are able to do so.

[22]     At one stage I wondered whether the discount should be less than three years. But,  bearing  in  mind  the  observations  of  the  Court  of  Appeal  in  Hessell,  I  have concluded that the appropriate discount is in fact three years.   This means that you will have to serve a minimum of 23 years in prison.

[23]     I want to add this.  There is, of course, no additional protection of preventive detention in this case.  At this time, and on the information available to me, I am of the view that the following factors indicate a considerable risk to the community if you are released in the future. First, two separate murders. Second, the horrifying similarities between them. Third, indications that both were fuelled by anger of a spontaneous nature. Fourth, the bizarre and disgusting conduct after each murder. Fifth, the absence of any remorse or victim empathy. Finally, other matters that have been traversed in detail in the psychologist’s and psychiatrist’s reports and, in particular, the references to earlier episodes of strangulation.

[24]     So to summarise, you are sentenced to life imprisonment.     You must serve a minimum of 23 years.

Solicitors:

Crown Solicitor, Christchurch

D C Ruth, Christchurch