R v Tamaka

[2014] NZHC 182

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-032-2851 [2014] NZHC 182

THE QUEEN

v

KHARN TAMAKA

Hearing:                   18 February 2014

Counsel:                  E M Light for Crown

K F Preston for Accused

Sentence:                 18 February 2014

SENTENCE OF RONALD YOUNG J

[1]      Mr Tamaka you have pleaded guilty to murder.   Your plea of guilty came after a sentence indication given by me.   I note I have already given a first strike warning to you.

[2]      Firstly, the facts.   The victim, Ms Donnelly, resided in Upper Hutt.   She suffered from an intellectual disability and relied on a support worker who would take her shopping and check on her each week.  But beyond that she lived her life unsupported.  You had lived in an adjoining property to her in 2011 and it seems that the two of you may have known each other then although the extent is uncertain.

[3]      On 29 August 2012 Ms Donnelly was walking from home to catch a bus at the Upper Hutt train station.  Close circuit television pictures show you apparently following her for a period during this time.  Eventually she caught a bus to the Hutt

Valley Disabled Resource Centre.

R v TAMAKA [2014] NZHC 182 [18 February 2014]

[4]      Then  mid  afternoon  she  left  and  travelled  back  to  the  Upper  Hutt  train station.  Mr Tamaka you were again seen in her vicinity when she boarded the bus. Ms Donnelly was last seen alive at about 5.30 that day and about that time you were seen inside her flat and you were heard to say that you would return later.

[5]      At about 11 o’clock that night Ms Donnelly’s neighbour heard a knock on her door and she recognised your voice at the door but she did not open it.  It seems that shortly after you entered Ms Donnelly’s house.   It is not now possible to know precisely what happened but it seems clear that you put your hand or forearm across her throat and  applied  significant  pressure.   That pressure  fractured her thyroid cartilage and ultimately caused her death.  There were other injuries to her right hand including a fingernail which had been bent back and broken and a number of other scratches which would have caused her significant pain.

[6]      At the scene it seems clear that some effort was made to try and disguise the fact that this was a killing or at least a killing by you.  There was also some sexual contact between you and Ms Donnelly.  A few days later you were arrested and you have now pleaded guilty.

[7]      You have a significant past history of criminal offending.   You have been convicted on a number of occasions of violent offending dating back to 2006 as well as some dishonesty offences.   More recently,  you were convicted of indecently assaulting a woman and injuring with intent to injure.

[8]      I want to acknowledge the victim impact statements that I have read and heard read today.  They are statements mostly from members of the family.  They are, Mr Tamaka, angry and heartbroken that Ms Donnelly has been taken from them. They say that the offending has destroyed their family and that their family’s life will never be the same again. All describe Ms Donnelly as a kind, sweet, happy innocent person.  They are devastated by the killing and I want to acknowledge their presence here today and their grief.

[9]      There is now available a psychiatric report on you.  The report describes a miserable childhood.  You suffered oxygen deprivation at birth which has resulted it seems in some degree of intellectual impairment.  You were subject to violence as a child as well as emotional and sexual abuse and exposed to gang violence.  It is clear from the interview you had with the psychiatrist that at the time of the killing you were grossly intoxicated.

[10]     The psychiatric report identifies a series of problems with your intellectual impairment and the effects of your childhood and the fact that you have a history of aggressive sexual behaviour beginning as early as eight years of age.   In addition, you have a history of substance abuse.

[11]     More recent testing indicates that your IQ may not be in the intellectually disabled category but you will always need support to develop.

[12]     The Crown say in their submissions that an appropriate start sentence should be influenced by these factors.  Firstly, the offending occurred in Ms Donnelly’s own home; she suffered a number of additional injuries; you attempted to conceal what you had done; and that there was a sexual dimension to the offending and the victim impact.  Other than your plea of guilty they say there are no mitigating factors.

[13]     In addition, as to your personal circumstances, they stress your past violent convictions.  They say a proper sentence is one of life imprisonment with a starting point of 14 to 14½ years minimum period of imprisonment before consideration of your guilty plea.

[14]     I have read and take into account your counsel submissions.  He stresses the material contained in the psychiatrist’s report relating to your level of responsibility. He says that a final minimum period of imprisonment taking account your guilty plea, should be in a range of 11½ to 12 years’ imprisonment.

[15]     There is no exaggeration to say that this was a shocking murder.  It is hard to understand why you killed this young woman.  You can offer no explanation as to why these events occurred.   Disturbingly your most recent previous convictions

involve some similarity to the current offending.  The worrying aspect of course is that your offending is getting progressively worse.  I am sure the probation officer correctly identifies you as currently being at high risk of reoffending.  And this will likely remain if untreated and I specifically draw this to the attention of the Parole Board.

[16]     The aggravating features here are:

(a)       because  of  her  intellectual  impairment  the  victim  was  especially vulnerable;

(b)the killing occurred in her own home although I accept there was no evidence to say that you were there without permission;

(c)       there was a sexual element to the killing and the killing appears to have occurred in association with some sexual contact;

(d)you attempted to disguise the events or dispose of evidence.  The only mitigating feature is your plea of guilty.

[17]     I sentence you, therefore, to life imprisonment.  As to the minimum period of imprisonment the appropriate starting point is 13 years with a small increase of six months for your previous violent offending.   I deduct from that 18 months for your plea of guilty so that the minimum period of imprisonment is one of 12 years. Whether, however, you will be released at that time will be up to the Parole Board.

[18]     I, therefore, formally sentence you to life imprisonment with a minimum period of imprisonment of 12 years.

Stand down.

Solicitors:

Ronald Young J

Luke, Cunningham & Clere, Wellington

Public Defence Service, Wellington