R v Tarapata
[2015] NZHC 1594
•9 July 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-055-001496 [2015] NZHC 1594
THE QUEEN
v
ZARN TARAPATA
Hearing: 9 July 2015 Appearances:
J L S Shaw and K C Chang for Crown
B Hesketh and E Te Whata for DefendantJudgment:
9 July 2015
SENTENCING NOTES OF ANDREWS J
Solicitors:
Crown Solicitor, Auckland
Counsel:
B Hesketh, Hamilton
R v TARAPATA [2015] NZHC 1594 [9 July 2015]
Introduction
[1] Mr Tarapata I am addressing you now at this stage. You may stay seated for the moment. I will ask you to stand at a later stage but bear in mind Mr Tarapata I am talking to you.
[2] You appear for sentencing today having been convicted after a jury trial of the murders of Paul Fanning and Paul Matthews. As you will know, the law provides that unless special circumstances exist, and they do not exist here, the law is that you must be sentenced to life imprisonment, and you must be ordered to serve a specified minimum period of imprisonment before you may be considered for parole. The issue for your sentencing today is how long the minimum period of imprisonment should be.
Relevant Facts
[3] As at 19 July 2014 your partner, Tamara Cassie, was a part time employee of Mr Fanning’s Ezycash business in South Auckland. Mr Matthews was also employed there. On that day Ms Cassie had made an appointment to meet a customer at the store in relation to a cellphone which had been given as collateral for a loan.
[4] Ms Cassie went to Ezycash at about midday. You were with her in the car, as were your two children. Ms Cassie went inside to see the customer, leaving you and the children in the car.
[5] A few minutes after Ms Cassie went into the store you also went in there. You had armed yourself with at least one knife. You made your way through the front part of the store, without being noticed by Ms Cassie, who was busy with the customer. Mr Fanning and Mr Matthews were in the lunch room at the rear of the store at the time. They were both known to you.
[6] On the evidence, it appears that you slit Mr Matthews’ throat as he was sitting at the table eating lunch. In all, Mr Matthews was stabbed 15 times but he attempted to call for help. On the evidence, I find that you attacked Mr Matthews in two
stages, one of which was after he tried to resist. Very shortly after that you stabbed Mr Fanning six times. Both men were found lying on the floor of the lunch room. Both had died very quickly.
[7] After this you went back to the front of the store, collected Ms Cassie (who was not aware of what had happened) and returned to the car. The whole incident in the store took less than three minutes. You and Ms Cassie then drove through various parts of Auckland over the course of the afternoon before you returned home. On the evidence, I conclude that you took steps to dispose of a knife you had used, and attempted to clean blood off a car mat. Later that evening, when news that Mr Fanning and Mr Matthews had been killed was on the television news, you drove to your family’s home in Huntly. You were arrested by the Police in Huntly.
Victim impact statements
[8] I have heard, as have you, the victim impact statements that were read out in Court this morning. I have also read the statements by the partners of Mr Fanning and Mr Matthews and by Mr Fanning’s son, which were not read out. Mr Tarapata, the tragedy caused by your actions is plain, and it is enormous. Members of two families have been left without the partner, father, the grandfather, the uncle and the brother. The loss and grief to both families is absolutely unimaginable.
Your letters
[9] I have read letters that you have written to the families of Mr Fanning and Mr Matthews. I understand that they have been made aware of these letters and I hope that one day they will feel able to read them. You ask to say that you are sorry, and you ask that one day they may be able to forgive you, you wish that you could turn back time, so that you did not go to the store. You say that each of Mr Fanning and Mr Matthews was a good, kind, man, who had helped others, including your own family. I accept that you wrote those letters meaning them sincerely, and that you did intend to express your regret.
Pre-sentence report
[10] I turn now to the pre-sentence report. You are 26 years old. While you have been previously employed, at the time of your offending you were a sickness beneficiary.
[11] You have a supportive family, and you described your childhood as normal, but you also said you started using drugs and alcohol from a fairly young age. You left school at 15 with no qualifications. You have been with, Ms Cassie, who is your partner, for about seven years, and you have three young children together.
[12] You have some previous convictions, only one of which may be relevant at your sentencing today, and that is a conviction for assault with intent to injure, which was committed in 2011.
[13] I have read letters from Ms Cassie, and from her brother, Che. Ms Cassie stresses that you were always thinking about your family and how to make things better for them – they were your first priority, and she says that you were the best father a child could ask for. She also says that you were a real rock for her, when she was going through difficult times. You never turned your back on her. She talks about the tragic impact that there has been on her own family, and for your family, as a result of what has happened. Ms Cassie’s brother Che says that you were always there for him and he feels lost without you. He got into drugs and drinking after the events of July last year. He says that he is now the man of the family, and he does not know what to do.
Psychiatric report
[14] I have also read the psychiatric report prepared by Dr Skipworth at my direction. This was prepared pursuant to an order I made at the time you were convicted, and it is to assist me in determining your sentence, and whether any specific conditions should be placed on the sentence. Dr Skipworth’s focus was on your current diagnosis, not your condition at the time of your offending.
[15] Dr Skipworth’s opinion is that you satisfy the diagnostic criteria for schizophrenia, but he also notes that with treatment with antipsychotics, and with no drug use, your delusions have largely reduced or been resolved. Dr Skipworth expresses the view that it is likely that your mental illness will require treatment over many years.
[16] Dr Skipworth discussed the possibility of what he referred to as a “hybrid order”,1 by which I could order that you spend a period of time in hospital under the Mental Health Act at the beginning your sentence, and then return to prison at a time when it is considered that you are no longer mentally disordered and fit to be returned to the prison. However, he also notes that you are not currently on the waiting list for admission to the Mason Clinic, which suggests that you are not currently in acute need of inpatient treatment. For that reason, Dr Skipworth does not recommend a hybrid order, although he does note that you could be transferred to
hospital if you needed hospital-level care.
[17] Finally, Dr Skipworth notes that your rehabilitative needs will fall into at least three areas: these are mental health, your drug use, including alcohol, and your propensity for violence. He notes that your mental health issues will be addressed by the Forensic Mental Health Service, either in hospital or in prison.
Sentencing process
[18] As I said earlier, I must impose a sentence of life imprisonment, and I must fix the minimum period of imprisonment you must serve before you can be considered for release on parole. Under the Sentencing Act, the majority of sentencing for murder falls into two classes of cases: the first are those where the minimum period of imprisonment must be not less than 10 years,2 and the second is those where, under s 104 of the Sentencing Act, certain factors of the offending require there to be a minimum period of imprisonment of at least 17 years, unless that would be manifestly unjust.3 As you know from the submissions made to me by
counsel today, s 104 is of particular significance for your sentencing. It sets out ten
1 Under s 34(1)(a)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003.
2 Sentencing Act 2002, s 103.
3 Sentencing Act 2002, s 104.
features of offending, and if any one of them is present, a 17 year minimum period of imprisonment will apply, unless that would be manifestly unjust.
[19] I am given guidance as to how s 104 is to be applied by the Court of Appeal’s judgment in Williams v R.4 For your sentencing, I first have to decide whether s 104 applies – that is, if any of the ten features are present, leading to a presumption that the minimum period of imprisonment will be at least 17 years. If s 104 applies, then I must determine the sentence which ought to apply, without considering s 104. If the sentence reached is less than 17 years, I have to assess whether it would be
manifestly unjust to impose a minimum period of imprisonment of 17 years.
[20] Generally, a 17-year period will be manifestly unjust if it is clearly too long when considered against normal sentencing principles. Cases of that sort are exceptional. If I have concluded that a minimum period of imprisonment of at least
17 years is not manifestly unjust, I then decide what minimum period of imprisonment is justified in all of the circumstances of the case.
[21] When I sentence you I have to take into account the purposes and principles of sentencing. As to the purposes, I have to hold you accountable for having killed two men, and to make you responsible for your offending and to acknowledge the harm that you have done to them, their families, and to the community. To the extent possible, your sentence must deter others from similar offending, and it must protect the community from you. I also have to denounce your actions – this means to tell you and the community that what you have done simply will not be tolerated.
[22] In your case the relevant principles of sentencing are the gravity of your offending, your own culpability, and the seriousness of your offending in comparison with other similar offending. Also, I must take into account the information provided to me about the effect of the offending on the victims.
[23] Under the Sentencing Act I am directed to impose the least restrictive outcome that is appropriate in the circumstances. I must take into account any
particular circumstances relating to you that mean that any particular sentence would
4 Williams v R [2005] 2 NZLR 506 (CA) at [52]–[54].
be disproportionately severe. Finally, as it is generally desirable to be consistent in sentencing, I consider the sentences in cases where there have been similar circumstances.
Minimum period of imprisonment
[24] Mr Shaw submitted for the Crown that this case is clearly within s 104, because there were two victims, so I am required to impose a minimum period of imprisonment of at least 17 years. He submitted that it would not be manifestly unjust to impose a minimum period of imprisonment of at least 17 years. He submitted to me that the starting point for the minimum period of imprisonment, before considering any factors that might justify reducing it, should be at least
19 years.
[25] Mr Hesketh, on your behalf, properly accepted that there were two victims, so s 104 applies, but he submitted that it would be manifestly unjust to impose a minimum period of imprisonment of 17 years. This was principally on the basis of the evidence Dr Cavney and Dr Barry Wilson gave at your trial concerning your mental illness. Mr Hesketh submitted that the appropriate starting point for the minimum period of imprisonment was around 15 years.
[26] In a brief reply in that respect Mr Shaw submitted that I could not properly conclude that such a sentence would be appropriate.
[27] As is accepted by both lawyers, because you killed two men, s 104 applies. The fact of there being two victims is, on its own, sufficient to make s 104 apply. I say straight away that while I will take your mental illness into account at a later stage, I cannot conclude that that illness makes it manifestly unjust to impose a minimum period of imprisonment of less than 17 years.
[28] There are a number of cases where mental health has been a factor in making a 17 year minimum period manifestly unjust. However, in these cases mental illness has typically been one of a number of factors which has made such a sentence
unjust.5 Furthermore, in most of those cases the offending has also been less serious than in your case.6 I also note in passing that of 16 sentences given for double homicide since s 104 came into force, none of them has received a minimum period of imprisonment of less than 17 years, despite the fact that several of those cases involved defendants with serious psychiatric problems. 7
[29] I must now look at the aggravating and mitigating features of your offending, that is, the things that make it more and less serious. One of the factors that makes your offending particularly serious is of course the fact that you killed two men. But other factors I take into account are the level of violence involved – that is, the multiple stab wounds to both victims, and the fact that there were two stages to your attack on Mr Matthews. I accept that nothing that Mr Fanning and Mr Matthews did in any way gave you any reason to do these terrible acts. Your actions were completely unprovoked. The offending, as is abundantly clear, has had an immense impact on the families of Mr Fanning and Mr Matthews. I note, however, that as the Crown submitted I do not take into account that previous conviction as an aggravating factor.
[30] I have reviewed the minimum periods of imprisonment imposed for double homicides, where s 104 applied. As I said earlier, in each case a minimum period of imprisonment of at least 17 years was imposed. Of the cases I have reviewed, the cases of Konia and Malik are the most relevant. Both involved particularly brutal double stabbings. In Konia, a starting point of 22 years was adopted, and the final minimum period of imprisonment was reduced to 20 years to account for Mr Konia’s
mental illness. In Malik, the starting point was 21 years, and that was reduced to a
5 See for example Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446; R v Turner [2015] NZHC 189; R v Ellery [2013] NZHC 2609;
6 See for example Gottermeyer v R [2014] NZCA 205; R v Mareikura [2014] NZHC 3244.
7 Sila v R [2009] NZCA 233 (17 years); McKenzie v R [2009] NZCA 169 (21 years); Gardener v R [2009] NZCA 113 (17 years); Cui v R [CA 333/05, 28 September 2006 (19 years); R v Malik [2015] NZHC 466 (18.5 years); R v Maheno [2014] NZHC 2430 (18 years); R v Liaste
HC Auckland CRI-2009-04402878, 16 December 2011 (18 years); R v Frost HC Greymouth
CRI 2010-018-244, 3 October 2011 (17 years); R v Ogle HC Wellington CRI-2009-091-2763,
16 October 2009 (19 years); R v Reihana HC Rotorua CRI 2005-070-7328, 29 June 2007 (21 years); R v Doyle HC Rotorua CRI 2005-070-6451, 13 October 2006 (19 years), R v Konia (HC Palmerston North CRI 2005-054-2095, 30 June 2006 (20 years); R v Taylor HC Auckland CRI-2004-047-7, 15 February 2005 (17 years); R v Ying (2004) 20 CRNZ 1078 (HC) (20 years).
final minimum period of imprisonment of 18½ years, to account for Mr Malik’s
mental illness and the fact that he pleaded guilty.
[31] You case bears many similarities to both of those cases, but it is a little less serious because in those cases the victims were more vulnerable, and there was a higher level of brutality. Taking all of the matters that I have referred to into account, I have concluded that the starting point for the minimum period of imprisonment, before I consider personal factors which may justify reducing it, is
20 years.
[32] The first of the personal matters I consider is the reduction to be applied because of your mental illness. Mr Hesketh submitted that I should apply a significant discount for your mental health issues. The jury by its verdict rejected your defence of insanity under the provisions of the Crimes Act. Nonetheless, the psychiatrists who gave evidence at the trial all agreed that at the time of the offending, you were experiencing a psychotic illness, although they disagreed as to the cause of the illness and whether it fitted within the provisions of the Crimes Act defence. Furthermore, Dr Skipworth’s report indicated that you still suffer from a mental illness.
[33] I accept that notwithstanding that the legal defence of insanity was not available to you, your mental condition reduced your culpability at the time you killed the two men. I am also satisfied that a lengthy prison sentence is likely to take a greater toll on you than it would another person. For these reasons, it is appropriate to apply a reduction for your mental illness.
[34] Mr Hesketh submitted that the reduction should be such as to result in a final minimum period of imprisonment well below 17 years. Such a reduction would not, however, be appropriate in your case. The cases referred to in Mr Hesketh’s submissions all involve less serious offending, and also involve situations where
youth and other mitigating factors were also present.8 I agree that a discount for
8 R v Aporo HC Palmerston North CRI-2005-054-2872, 20 October 2006; R v Gottermeyer [2014] NZCA 205; R v Ellery [2013] NZHC 2609; R v Holl [2013] NZHC 2932, Te Wini v R [2013] NZCA 201; R v Harrison-Taylor HC Auckland CRI-2004-092-1510, 12 September 2005.
your mental illness is appropriate, as was accepted in both Konia and Malik, but it will not lead to a sentence below 17 years.
[35] The second matter I take into account as a mitigating factor is the remorse you have shown in the letters I referred to earlier. I accept that this is sincere, and it does justify some reduction. I do not accept that any reduction is required on account of your age but I do accept, as the final mitigating factor, is that you accepted having caused the deaths of Mr Fanning and Mr Matthews. Your defence at trial was that you had a legal defence of insanity. But, to some extent your acknowledgement of having caused the deaths, reduced the issues that had to be dealt with at the trial.
Sentence
[36] Mr Tarapara, on each of the charges of murder you are sentenced to life imprisonment. These are to be served concurrently. In each case, I order that you serve a minimum period of imprisonment of 17 years. As I have said earlier, I am satisfied that it is not manifestly unjust to impose that minimum period of imprisonment. I record that I have accepted Dr Skipworth’s recommendation that a hybrid order under s 34(1)(a)(i) of the criminal Procedure (Mentally Impaired Persons) Act is not appropriate.
[37] Please stand down.
Andrews J
7
9
0