R v Tait HC Tauranga CRI 2010-070-005571

[2011] NZHC 975

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2010-070-005571

THE QUEEN

v

MURRAY DAVID TAIT

Hearing:         16 September 2011

Appearances: G C Hollister-Jones for Crown

J Bergseng for Prisoner

Sentence:       16 September 2011

SENTENCING REMARKS OF PRIESTLEY J

Counsel:

G Hollister-Jones, Crown Solicitor, Tauranga. Email: [email protected]

John Bergseng, Barrister, Tauranga. Email: [email protected]

R V TAIT HC TAU CRI 2010-070-005571 [16 September 2011]

Introduction

[1]      Murray David Tait, I am sentencing you today on the charge of murder.  You were tried in the High Court at Hamilton.  You faced but one count, murder.  On 4

July 2011 the jury returned a unanimous verdict of guilty.

[2]      The only defence which you were able to run (provocation no longer being an available defence as a result of its repeal), was to rely on a reasonable doubt on the issue of murderous intent.  The jury were clearly of the view that all the ingredients of murder had been proved beyond reasonable doubt.  I agree with that assessment. Given the nature of the assaults on your victim – hitting his skull and other parts of his body a number of times with a hammer – it is difficult to see how there could be much doubt over s 167(b) intent. Your personality disorder, to which I shall shortly refer, would not in my judgment have prevented you from knowing that your assault on your father was likely to cause his death.  Nor would your illness have exonerated you from recklessness.

[3]      A term of life imprisonment, as I will shortly mention, is inevitable here.  The important sentencing issue confronting me is what minimum term of imprisonment I should impose, to be served as part of your life sentence.

The offending

[4]      I say something to you about the offending.  You had been living, on and off, with your elderly parents at their unit in 15th Avenue, Tauranga for some 16 years. At the time of the murder you were 45. Your father, the victim, was 76.

[5]      At approximately 9.38am on 22 June 2010 your mother left the house, as was her custom, to take the dog for a walk.  An argument developed between you and your father in the bathroom area, it would appear over responsibility for doing the laundry.  You armed yourself with a hammer, taken almost certainly from the garage down the hallway of the unit, and returned to the bathroom.  There was pushing and shoving between you and your victim.  He fell into the bath.  Splatter marks suggest you struck him a number of times around his body and the head with the hammer. Defensive wounds were seen on your victim’s arms.  Unsurvivable and massive head

injuries – five in number – were inflicted by you.  Four of the five blows were in the same area at the top of the skull.  In all probability at least two of those blows were inflicted whilst your victim was wedged into the corner of the bath.  These blows caused irregular depressed skull fractures.

[6]      The evidence was (the movements of you and your mother being captured on street CCTV cameras), that you left the house having closed and locked it approximately eight minutes after your mother had left it.  You drove off in your car. Your mother returned to the house later, and observed her husband lying in the bath and also observed blood on the bathroom walls.  The police were called as was an ambulance.  Entry into the house had to be forced.  Your father died the next day, his brain injuries being irreversible.  His life support apparatus was turned off.

[7]      You  drove  somewhat  aimlessly  around  the  Tauranga  region  and  were eventually apprehended by the Police having first left your car and waded into a tidal estuary.

[8]      In short, this was a ferocious attack on your father to whom you owed a duty of respect both as your father and an elderly man.  The blows were clearly inflicted by you with a degree of rage.  An elderly man was robbed of his life.  Your mother, your siblings and your nephews and nieces have been robbed of a husband, father and grandparent.

Victim impact statements and restorative justice conference

[9]      I say something now about the victim impact statements and the restorative justice conference. At the request of both counsel, when convicting you of murder, I directed that there was to be a restorative justice conference.  This was held in the Tauranga District Court earlier this month. Your mother and your three siblings were there, as were you.

[10]     The conference was well prepared.   I compliment the Moana Restorative Justice Trust and in particular the two facilitators, Messrs Clarke and Delaney on what was a highly productive process, and also on their 14 page report.

[11]     There is no need for me to give details of the report. You, to your credit, took full responsibility for causing your father’s death and apologised for the pain and suffering you caused your family.   Your family understandably expressed concern and regret that your mental illness had not been earlier diagnosed and treated.  They all expressed a strong desire that  you engage in treatment, taking medication if necessary.  All attendees want to continue contact with you and regard you as being an ongoing member of the Tait family.  They also expressed the hope that you would make the most of your time in prison so that, on release, and after engaging in programmes, you could lead a useful life.

[12]     The victim impact statements from your mother and your two sisters are consistent with the conference outcome.  They, of course, regret that they and their children no longer have a father and grandfather and that your victim will miss out on  seeing  his  grandchildren  growing  up.    As  is  so  often  the  case,  there  are suggestions  that  the  victim’s  relationship  with  his  grandchildren  was  somewhat easier than father/child relationships can sometimes be.

[13]     Your mother’s victim impact statement was short but her views are clearly set out in the restorative justice report.  Your mother has been robbed of a life partner of over 50 years.  She knew that her husband, given the normal course of events, was more likely to die first.   His death was nonetheless premature.   I must say I was hugely impressed by the clear and   dignified, and unemotional way in which Mrs Tait gave evidence at your trial.   She is the matriarch of the family which has experienced a dreadful and unnecessary tragedy.   That she has been able to analyse so clearly what went wrong and to continue to love you and regard you as her son is commendable.

Personality disorder

[14]     I turn now to your personality disorder.  Before trial your counsel had you assessed by a highly-regarded Waikato forensic psychiatrist, Dr Kumar.   It is unnecessary to detail in full his initial reports which are on the Court file.  I note too that Dr Kumar has provided a supplementary report dated 9 September 2011.   Dr Kumar was able to supply the missing piece of the jigsaw, so far as your family was

concerned, to complete the picture of this tragedy.  For many years it would appear that you have suffered from deteriorating and untreated Obsessive Compulsive Personality Disorder of the parsimonious compulsive type which from now I will just call OCPD.   That diagnosis is reconfirmed in the 9 September report.   This disorder accounts for your tendencies to hoard, to be reclusive, to be somewhat suspicious, and to resent what you saw as intrusions into your life and space.

[15]     Understandably, given your age, your parents were concerned about what might happen to you if they died or became too old to cope by themselves.  They tried, over a number of years, unsuccessfully, to engage assistance from mental health facilities.  Their dilemma, in my view, exemplifies the weakness of a mental health system where treatment is unavailable on any compulsory basis unless a clear pointer to danger to self or others can be established.   For reasons I do not really understand, your parents were referred to Tough Love. The strategies which Tough Love advised your parents to adopt, which included attempts to get you to shoulder more domestic responsibility and to cut down on the availability in the kitchen of your favourite foods, far from assisting your OCPD, led to a marked decline as was apparent from the evidence in your trial of you becoming more angry and jostling your parents.   Your father, who clearly was growing tired of the limitations and expense of your continued occupation of his home, was the primary target of your irritation.

[16]     Whether or not you are currently being treated for OCPD is unclear to me. Mr Bergseng informs me that you are not.  For sentencing purposes, however, there can be no dispute that OCPD was an important driver of your offending.  Without that disorder, or indeed if the disorder had been treated, it is improbable in my view that you would have reacted with the violence which you did towards your father when you saw him as crossing you.  Section 9(2)(e) stipulates as a mitigating factor a diminished intellectual capacity or understanding at the time of an offence.  It is both a mitigating factor and a feature which must diminish slightly your overall culpability.  I intend to factor it in.  In fairness I note that Mr Hollister-Jones does not accept that the disorder I have mentioned is necessarily covered by s 9(2)(e).  I note however, that courts have always regarded personality disorders and other forms of mental illness as being a significant mitigating feature, and even if technically, which

I doubt,  your disorder  is not  covered  by s 9(2)(e), it  is  clearly covered,  as  Mr

Hollister-Jones accepts, by s 9(4)(a).

Personal circumstances

[17]     I now turn to your personal circumstances.  You are childless and a single man. You have not been gainfully employed for a number of years.  Unbeknowns to your parents you were in receipt of a sickness benefit having found, it would seem, general practitioners who were prepared to certify that you were eligible without necessarily turning their minds to the root causes of your unemployment.  However, I do not criticise them because you were probably less than frank with them in the same way that you did not reveal to your parents that you were already drawing the WINZ benefit which they hoped you would apply for.

[18]     You have no previous history of extreme violence or indeed any violence. The pre-sentence report has grappled as best it might with the risk of your re- offending.  Standard assessment tools assess you, and in my view correctly so, as a low risk of re-offending, although such a low risk is outwardly inconsistent with the high risk which might normally attach to the extremely violent offence of murder. Proper  risk  assessment  must  lie  ahead,  being  left  in  the  hands  of  the  prison authorities and ultimately the Parole Board.   Much, Mr Tait, will depend on the extent to which you co-operate with treatment.  Your only previous conviction was for careless driving 30 years ago which is immaterial.

[19]     Returning to the issue of the risk assessment.   I have been helped with the comments I have just made, by Dr Kumar’s supplementary report of 9 September

2011.    Dr  Kumar  had  administered  to  you  the  risk  assessment  tests  which  are attached to his report as an appendix.  It is Dr Kumar’s considered opinion that, with appropriate treatment, your personality traits may be modified and even the low risk of violence that you currently pose, can be further reduced.  I accept that you do have a low risk of violence but the hinge to that will be whether you are prepared to accept medical treatment for your disorder.

Mitigating factors

[20]     Mitigating factors must be your OCPD, your good record, the absence of any previous propensity for violence, and the outcomes of the restorative justice conference and your acceptance there for  responsibility and your apology.  I intend, as I told counsel, to add to these as a factor not to be given great weight but some, the fact that your father, that fatal day, must have said or done something which triggered you.   This would not have amounted to provocation in its former legal sense as a partial defence.  But there must nonetheless, it being a safe inference to draw, have been something which provoked you in the colloquial sense.

Sentencing

[21]     I now turn to the issue of sentencing you.   The statutory provisions which govern sentencing for murder are contained in ss 102–104 of the Sentencing Act

2002. There is but limited room for the exercise of judicial discretion.

[22]     Section 102(1) mandates a sentence of life imprisonment for murder unless such a sentence would be manifestly unjust.  There is nothing here about either the circumstances of you or the murder which would make it manifestly unjust to sentence you to life imprisonment.   I note your counsel’s submissions, which I repeat, that this homicide was triggered solely by your personality disorder and that the risk assessment of you repeating violence is low.  Your counsel referred me to a

recent judgment of Wild J, R v Wihongi.[1]    In that case, unlike here, his Honour had

before him a number of medical reports all of which in, a determinative fashion, stated that the prisoner there did not currently represent a serious risk to other people.  His Honour also held, as a very important point [45] that there was no need to protect the public from the prisoner in the future.  I see your case as being clearly distinguishable and in any event I note that the Wihongi sentence is subject, I am told from the Bar, to a Solicitor-General appeal to the Court of Appeal.

[1] R v Wihongi, CRI 2009-041-002096 30 August 2010.

[23]     Having rejected your counsel’s submission that I should impose a sentence on you of at least of life imprisonment, I then turn (unless the three strikes legislation

and s 86E applies, which they do not) to ss 103 and 104.  Section 103(2) stipulates a minimum term of imprisonment of not less than ten years, such minimum term being what the Court considers necessary to satisfy the purposes of accountability, denunciation, deterrence and protection of the community from the offender.   Mr Hollister-Jones reminds me that a murder of this type, involving an attack with a hammer on an elderly man, and also possible repetition of violent offending by you in the future, are factors I need to weigh. Section 104 stipulates the minimum period of imprisonment of at least 17 years for the most serious types of murder unless again the Court is satisfied that it would be manifestly unjust to impose that term.

[24]     The Crown, properly in its submissions, points to the possibility of s 104 being engaged.  It points to s 104(1)(e) which relates to murders committed “with a high level of brutality, cruelty, depravity, or callousness”.  The Crown’s submission is that this murder, involving the use of a hammer against the skull of an elderly man, might  well  be  caught  by subsection  (e).      Secondly the Crown  points  to subsection (g) which refers to a deceased being “particularly vulnerable because of his age, health, or … any other factor”.  The Crown here points to your father’s age of 76 and his health problems which are said to be a severe chronic vascular and lung disease (as a result of many years of smoking).  The deceased was also said to be vulnerable, this being in part a reference to evidence of a previous incident when you had shouted at or pushed him.  His wife found him sitting on a couch white, and shaking.  To that Mr Hollister-Jones has referred to the vulnerability of anyone in a confined space, such as the bathroom of the unit that morning.

[25]     Mr  Hollister-Jones  has  had  the  opportunity,  since  filing  his  original submissions, to reflect.  His current position is that although he does not resile at all from s 104 being engaged, he accepts, given the evidence there has been of your mental health and the more recent Kumar report, that it would be manifestly unjust to sentence  you to a minimum term of 17  years imprisonment.   On that basis, submits Mr Hollister-Jones, s 103 applies.  The real issue is what uplift should there be, if any from ten years.  Mr Hollister-Jones’ submission is that there should be an uplift of one year, with an end sentence of life imprisonment with a minimum term of eleven years.

[26]     I think it would nonetheless be helpful for me to mention something more about s 104, I have no intention of going through the jurisprudence of that section and trying to compare your case with other cases. Although as I have said the Crown was proper to draw the two relevant provisions of s 104 to my attention, I note Mr Hollister-Jones’ submissions, in addition to the ones I have just outlined, which is the central issue for me is whether this brutal and callous killing of your elderly and vulnerable  father  is  mitigated  by  the  effects  of  your  personality  disorder  thus bringing the element of manifest injustice into play.   Mr Hollister-Jones accepts that this is a factor in respect of s 104 but rejects it, for obvious reasons, in respect of s 102.

[27]     Mr  Hollister-Jones  also  submitted  that  “most  murderers  will  have  an untreated personality disorder”.  I am not totally sure of the basis of that submission. Many murderers have violent personalities and indeed a history of violence, none of which you have.  Many murderers labour under the sequellae of childhood abuse or drug and alcohol abuse.   You do not.   I consider, as do your family, that your untreated OCPD was the root cause of your offending.

[28]     But I do record that despite the Crown submissions, I do not consider that s 104 is centrally engaged.  All murders are ipso facto callous and brutal.  What is essential here is whether there was a high degree of brutality or callousness.   It is sickening to think of an elderly man’s skull being stoved in by hammer blows.  But sickening too is the thought of people being stabbed repeatedly with knives.

[29]     As I mentioned in my dialogue with both counsel, I have looked at two recent High Court decisions, not challenged by the Crown on appeal, being R v Rukuata[2] where a minimum ten year term was imposed on a victim who murdered his partner after a domestic argument, where there were elements of provocation by repeatedly stabbing her on the neck and the head with a large carving knife and leaving his victim lying at the scene where two young girls aged three and four would find her alone. Then there was the sentence of Courtney J, R v Seau[3] where again a minimum

term of ten years was imposed in another knife attack on the prisoner ’s wife, where

11 wounds with a large kitchen knife including fatal severance of the carotid artery and jugular vein by a 15cm neck wound were a cause of death.  The deceased there showered and left the house knowing that one of the children would inevitably discover their mother’s body.  Given those sentences in what I regard as comparable cases, and the nature of the knife attacks, I decline to find that this particular murder was committed with a high degree of brutality or callousness.

[2] R v Rukuatua CRI 2005-092-013891 29 May 2007 (Cooper J).

[3] R v Seau CRI 2006-092-018372 17 April 2008.

[30]     Turning to the 104(1)(g) issue, the focus here must be whether the deceased was “particularly” vulnerable because of his health or age, or his confinement in the unit.  Certainly compared with you, in age and physique your father was elderly and frail and to that extent your attack on him was disgraceful.  I hope you accept that. The subsections frequently engaged in situations where the victims are defenceless children  or  babies  or  people  confined  in  wheelchairs.    Yes  your  father  was vulnerable.    But  I  do  not  consider  that  he  could  be  regarded  as  particularly vulnerable.   Many homicides take place inside homes and I do not accept, in the circumstances of this particular case, Mr Hollister-Jones’ submission that all these aspects of your father’s vulnerability made him particularly vulnerable.

[31]     So, by a different route from Mr Hollister-Jones, I do not consider that s 104 is engaged to the extent that I am obliged to impose a minimum 17 year term and have to turn my mind to the issue of whether imposing that term would be manifestly unjust. The Crown helpfully accepts it would have been.

[32]     Returning then to s 103, I must impose a minimum term of at least ten years. But the sentence must also reflect your overall culpability.  I do not, at the end of the day, think it matters very much whether I consider the factors I have identified, which must include your conduct and stance, which I accept as genuine, at the restorative justice conference, your mental illness, your good record, and possibly a mild degree of provocation on the part of your father as either mitigating factors, or instead factors which feed into assessing your overall culpability.

[33]     If I were to adopt the normal Taueki[4]  methodology of giving you credit for mitigating factors to be taken off the start point, then I would probably assess a

minimum term of 12 years imprisonment as an appropriate start point, with two years being deducted for the mitigating factors I have outlined. Alternatively, I could just reach, in the exercise of my discretion as sentencing Judge, a figure which I thought reflected your overall culpability, which includes the mitigating factors to which I have referred.

[4] R v Taueki [2005] 3 NZLR 372 (CA)

[34]     My  considered  view,  weighing  all  these  matters  as  I  have,  is  that  an appropriate and just minimum term for you would be the prescribed minimum under s 103(2) of ten years imprisonment.

[35]     I ask you to stand up at this stage please.  Thus, on the count of murder, on which you have been convicted, I sentence you to a term of life imprisonment and order a minimum term of ten years imprisonment.

[36]     Whether or not you are released, Mr Tait, after you have served ten years will be a matter entirely for the Parole Board.  I indicate to both the future Parole Board and to the current prison authorities that a matter of primary importance is managing your OCPD so that it never again results in an outburst of violence.  You are not by nature a violent man.   But  your mental disorder made  you so and the residual concern which Mr Hollister-Jones has rightly pointed out, and which your counsel accepts, is of community safety, largely depends on the extent to which you are prepared to accept treatment.

[37]     I strongly recommend to the prison authorities that you again be clinically assessed and that a treatment regime of the type set out at the end of page 4 of Dr S Kumar’s 9 September 2011 report, should be offered to you.  The degree with which you co-operate with that will, to a large extent Mr Tait, determine the date of your release and also the type of prison in which you are to be held.

[38]   I also recommend that you be given the opportunity to participate in programmes suitable for a man of your background and intelligence with a view to gaining further skills so that your re-integration into the community, probably in your mid to late fifties, will be smooth rather than difficult.

[39]     Thank you. Take him down.

..........................................

Priestley J