R v Taylor HC Auckland CRI 2004 047 7

[2005] NZHC 1241

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2004 047 7

REGINA

v

BERNARD TAYLOR

Hearing:         15 February 2005

Appearances: Steve Haszard and Steve Symon for Crown

Roger Chambers (sentence) and Hugh Leabourn for Mr Taylor Sentence:     15 February 2005

SENTENCE OF WILLIAMS J.

Solicitors:

Crown Solicitor, Auckland

Copy for:

Roger P Chambers/Hugh B Leabourn, P O Box 941 Auckland

R V BERNARD TAYLOR HC AK CRI 2004 047 7 [15 February 2005]

[Mr Taylor, it is customary to ask those being sentenced and their escorts to  stand but these days, particularly in cases such as yours, there are so many matters which a Judge must cover that I invite you and the escort to remain seated until I actually impose sentence on you.]

[1]    Mr Taylor: You appear here for sentence today having been convicted by  the jury on two counts of murder and two of wounding with intent to cause grievous bodily harm. As you know, you are facing the imposition of a lengthy term of imprisonment and the only major decision remaining today is just how long that term will be.

[2]    Your appearance here today is pretty much the last chapter in a series of sad and unfortunate choices made by a number of people including yourself.

[3]    As at New Year’s Day last year you had every reason, according to your lights, to be reasonably contented with your life. You had, as you told the  Police,  got your kids back – it seems though that you had had them for about four years according to the Probation report - you had your relationship with Suzanna Simpson for perhaps about seven years – and that seemed to be as intimate and friendly as you both wanted. Your kids and her kids got on well together. You had your  house, albeit rented, at Port Waikato, and the use of the nextdoor section on which you had  a productive vegie garden. Your life must have seemed reasonably good from your point of view.

[4]    Then, on the night of 2nd-3rd January, it all fell apart. Two young men lost their lives, two others were seriously stabbed, you were taken into custody and charged with the offences for which you have now been convicted, you have been in gaol since and you are going to be in gaol for a long time to come.

[5]    Having presided over the trial, it seems to me the first of those sad and unfortunate choices was your insistence in continuing to wear your favourite item of clothing, your red jersey, even though you knew it infuriated the “Black Power” people in Tuakau and/or Port Waikato. And that led, probably about a year  before the incident which led to your coming in to Court, to the fight down at Sunset Beach in which you, your brother Charlie and Wayne and Lee Boisen were involved. You were one of those who were quite seriously injured. Your assailants may have been

“Black Power” members or supporters but I reject the strenuous efforts made  on your behalf at trial to connect the young men involved in the fight on the night of 2nd-3rd January with those who assaulted you and the others a year or so beforehand. Though the beach group that night may have included young people  who were aping or mimicking “Mongrel Mob” members, their gestures and calls, there was really no link established between them. None of those  who  gave evidence admitted being “Mongrel Mob” members or even supporters and, given their youth, when the confrontation arose, you should have known that.

[6]    The next series of unfortunate choices were those of “Black Power” members or their supporters at Port Waikato who, I accept, regularly threatened you and your property, driving by, shouting threatening words and generally harassing you despite your efforts to explain you were not a “Mob” member or even an adherent. And the people who did that bear a share of the responsibility for what happened on the night of 2nd-3rd January.

[7]    The next sad choice was whatever happened earlier that evening between Lee Boisen on the one hand and Tahiwi Herangi, Henare Teao and Jake Heteraka on the other. We can no longer know what Tahiwi Herangi’s version was but according to Henare Teao, Lee Boisen told him that when he told Lee “Maraekaiti Teao-Taupo was fucking your sister”, according to Jake Heteraka/Rapana Lee Boisen challenged him to a “one out” meaning a fight. Lee Boisen’s version on the other hand was that he heard the three of them yelling out “Black Power” slogans and he asked them if they wanted to “step”. He said he would take on all three but they refused. At all events, the evidence suggested that that incident ended reasonably amicably by Lee taking the three of them over to the fire and they all shook hands and wished each other Happy New Year.

[8]    But whether that matter ended amicably or not, it is clear that Henare Teao in particular took exception and when the three of them rejoined the 20 or more, mostly drunk, young people down at Sunset Beach, it was to rally them to go with him back to 147 Maunsell Road for a fight. That was one of the major sad decisions taken that night, particularly since about 15 or more of the young people at Sunset Beach made the decision to go with the main trio for that purpose.

[9]    So, in the early hours of the morning, at least 15, possibly more,  young people arrived outside your house shouting, swearing, yelling out gang slogans, calling for Lee Boisen to come out and fight and then, a little later, throwing bottles. The evidence made it clear that a number of those present were on the opposite side of the road and did not want to participate in what occurred, or at least not in any physical sense. And the evidence was equally clear that although the confrontation first started with probably no more than three of the youths, most of the rest joined  in.

[10]   Then, in another sad decision, this time made by the Maunsell Road people, Mrs Trish Teiri decided to answer the beach group’s challenge.

[11]   I accept that you and some of the others herded the children at your property into the house to safeguard them from harm. But why Trish Teiri, your brother Charlie, Lee Boisen and later you responded to the challenge is, even now, something of a mystery. You have had ample time to reflect on it so I will not belabour the point. But why, when you had herded the children into the house, you and the others simply did not follow them and let the challenge peter out is one of  the worst decisions you have ever made in your life.

[12]   As I said, Trish Teiri responded to the challenge, not just responded but in a way which returned the taunts, the swearing and the challenge to the beach group in ways designed to inflame even further their drunken determination to fight.

[13]   However, had neither you nor the others responded to the challenge, even then it may have gone no further since there was evidence that, however menacing they were to her, the beach group were reluctant to fight a woman.

[14]   But the next bad decision was that of your brother Charlie to go down to the front of the property to answer the challenge coupled with Lee Boisen picking up a baseball bat and also going down to the front of the property. He may or may not have used the bat but that clearly answered the challenge and the answer was heightened when a number of the younger members of the Maunsell Road group threw bottles back at the beach group. Unsurprisingly in those circumstances, a fight

erupted probably with the beach group outnumbering the Maunsell Road group but while your brother Charlie came off second best, the beach group showed little stomach for a fight with people such as Ope Tupou.

[15]   Then, in what was undoubtedly the worst decision you have ever made in your life, you decided not just to join in but to take one of the knives you had been using when barbecuing the pig’s head and join in the fight with it. Again, even now, it is difficult to be certain as to why you joined the fight with a deadly weapon. You were probably deeply drunk after partying for two or three days continuously and that may have contributed. Your wish to protect the house and the many people, including children, staying there may also have played a part. Perhaps your frustration at what you saw as the unfair treatment meted out to you by “Black Power” supporters over the years, including the earlier assault down at Sunset Beach coupled with your drunkenness just overcame you. There was some evidence that you walked calmly down the property holding the knife saying “This will not happen again”. True, the accuracy of that evidence was questioned but, even if it was not said, it seemed to reflect your attitude.

[16]   It seems reasonably clear the beach group were expecting only to fight with fists and bottles. There was no evidence of any of them being armed with weapons beyond the bottles from which they were drinking, and several witnesses said during and after the fight they heard beach group members say “What’s with the weapons?”. So I think it  is clear they were not  expecting weapons to be used, there is no suggestion Charlie or Trish ever contemplated using a weapon and though Lee Boisen armed himself with the bat, I think it likely he did not use it and put it down when, as he said, he realised how much damage it could do.

[17]   But you joined the fight with the knife. Although we have no idea of the sequence in which you inflicted the injuries or the number of efforts you made to stab people, it is clear you struck home on five occasions on four  separate young men. You said to the interviewing officer that you were trying to stab them in the buttocks or the legs to get them to go away. But, unless at least two were crouching, that cannot have been the case. The stab wounds were inflicted with force up to the handle of the knife. Indeed, the wound to Mr Herangi’s abdomen through his liver

and back to the ribs was 13cm deep by comparison with a blade length of 10.5cm. The two young men who died did so quickly at the scene from wounds which would have been life-threatening even if expert help had been immediately available. Fortunately, the other two were not stabbed through vital organs and were able to be saved with the valiant efforts on the part of the Fire Service, a nurse who lived in  Port Waikato, and the police and ambulance services.

[18]   But the upshot of all of that is: two young men are dead and two others were seriously injured.

[19]   You are 39 years of age. You have I think about 19  previous  convictions over the years from 1979 to 1999. There is not much of a pattern to them. Most are dishonesty, nuisance or minor drug offences. But there are a number where  you  have been convicted of using a weapon or something like that, including burglary with a weapon in 1989, possession of a knife in a public place in 1996, possession of a shotgun coupled with a manufacturing cannabis oil offence in 1998, and other offences somewhat similar. But they have no great part to play in sentencing today.

[20]   In a helpful Probation report I am told of your deprived upbringing, the fact that you are dyslexic so you have had little in the way of education and, perhaps unsurprisingly in those circumstances, a patchy employment history. But you have had custody of your children for about four years. They were 10 and 12 at the time but now, of course, you have lost custody of them and are unlikely to have much of a relationship with them for a lengthy period to come.

[21]   The Probation Service, however makes the point, as does Mr Chambers on your behalf, that you are deeply remorseful for everything that occurred on the night in question and the Crown accepts that you are remorseful.

[22]   The Victim Impact statements make sad reading. Mr and Mrs Hikutai, the parents of Hiko Clark-Hikutai said that their “world has been turned upside down” as a result of what you did that night and they say what happened to their son “didn’t have to happen, it was just so out of control and there was no need for a knife to be

used. We hope that this person realises the pain he  has caused to our family.  We  feel sorry for his family but not for him”.

[23]   Mrs Herangi and Mr Cooper, the parents of Tahiwi Herangi give graphic evidence as to the effect on them as a result of the loss of their son including the necessity for counselling and psychiatric assistance, and they say it is “particularly hard around the family when you see all Tahiwi’s relatives about the same age as him and think he should be with them doing that. We can just only watch and think about what could have been”.

[24]   As you will have been told, the real question in this sentencing is whether I should sentence you to a minimum period of 17 years imprisonment or more or less. Tahiwi Herangi was 17 years old when he died. The period you are going to spend  in gaol is about as long as he lived.

[25]   And Waka Cooper talks of the injuries that he sustained including, he said, that “nobody had the right to use the knife that night”. He realises how close he  came to being killed and the mother of Maraekaiti Teao-Taupo also speaks of the effect on her family of what occurred that night.

[26]   In full and helpful submissions for the Crown, Mr Haszard makes the point that the aggravating features in this case - those that make the offence worse than it might otherwise have been - of course include the fact that there are two deaths and two serious injuries, the use of a weapon, the contents of the victim impact statements and your previous convictions although I accept there is not much of relevance there.

[27]   As to mitigating features, the Crown accepts that there were threats and taunts that night from the beach group who were intent on fighting, and the Crown, as I said, accepts that you are remorseful.

[28]   However having regard to the fact of the wounding convictions a well as the murder convictions arising out of the same incident, the Crown submits that the minimum term of imprisonment to be imposed on you should not be the statutory

minimum of 17 years but should be 19 years and they draw my attention to a number of cases which indicate some support for that view. There is R v Luff  (HC Palmerston North, 18 September 2002) - where a minimum of 20 years was imposed for murder of a police officer in association with the injuring of another police officer; Mackness (HC Hamilton, T023921, 14 April 2003) – 17 years imposed; R v Parrish (CA295/03 12 December 2003) – 13 years on a Solicitor-General appeal;    R v Ying (HC  Hamilton  T032171,  7  April  2004)  –  20  years  for  two  murders;  R v Hamilton (HC Whangarei,  T030025,  28 May 2004) – 17 years  imposed,  and   R v Tumuhai (HC Auckland CRI.2004-092-4001, 4 June 2004) - where 14 years was imposed reduced from 17 because of a guilty plea. And they drew my attention to a number of offences prior to the Sentencing Act 2002 coming into force – R v Watson (CA384/99 8 May 2000), R v Lundy (CA 137/02, 13 August 2002), R v Howse [2003] 3 NZLR 767 and R v Bell (CA80/03, 7 August 2003).

[29]   Mr Chambers, who with Mr Leabourn defended you very expertly at trial, is realistic enough to accept on your behalf that life imprisonment is the appropriate sentence to be imposed for the murders and that 17 years is the appropriate minimum term to be served before you become eligible for parole, and he acknowledges the aggravating features - the two deaths, the serious injuries and the weapons – but again emphasises your remorse, the degree of provocation to which you were subject that night and he adds the unlawful entry by at least some of the beach group onto your property.

[30]   In sentencing you I need to take account of the need to try and instil a sense of accountability for the harm done to the victims and the community and promote a sense of responsibility in you for that harm, denounce the conduct and deter others and of course protect the community from you.

[31]   There was in this case the use of a weapon on four young men, causing enormous loss and harm both to them and to their families. The victims were vulnerable in the sense of being unarmed and you should have realised that. There was a degree of premeditation, as Mr Chambers acknowledged: you went from the house where you had herded the children to safety to the fire, picked up the knife,

then down to  the  front  of the  property to  join  in   the affray.    Though of limited relevance there is your previous offending.

[32]   The mitigating factors do include the conduct of the victims and all the members of the beach group and what they did that night and the mitigating factors of course include remorse. This was grave offending. You recognise that. Murder is the most serious offence known to our criminal calendar and there must be some consistency in the sentencing levels.

[33]Sections 103 and 104 of the Sentencing Act 2002 read :

103Imposition   of   minimum   period   of   imprisonment   if    life imprisonment imposed for murder

(1)If the court does not impose a minimum period of imprisonment under this section, an offender sentenced to imprisonment for life for murder will serve a minimum period of imprisonment of 10 years as provided in section 84(3) of the Parole Act 2002.

(2)If a court sentences an offender convicted of murder to imprisonment for life, it may, within 28 days of the imposition of the sentence, on the application of the prosecutor or on its own motion, also order that the offender serve a minimum period of imprisonment of more than 10 years.

(3)The court may impose a minimum period of imprisonment of more than 10 years if it is satisfied that the circumstances of the offence are sufficiently serious to justify doing so.

(4)The duration of the minimum period of imprisonment imposed under this section must be the minimum period of imprisonment that the court considers to be justified having regard to the circumstances of the case, including those of the offender.

(5)For the purposes of this section, the circumstances of an offence may be regarded as sufficiently serious if the court is satisfied that the circumstances take the offence out of the ordinary range of offending of the particular kind.

(6)If the court makes an order under this section, it must give written reasons for doing so.”

(7)This section is subject to section 104.

104Imposition of minimum period of imprisonment of 17 years or more

The court must make an order under section 103 imposing a minimum period of imprisonment of at least 17 years in the following circumstances, unless it is satisfied that it would be manifestly unjust to do so:

…

(d)if the murder was committed in the course of another serious offence; or

(h)if the offender has been convicted of 2 or more counts of murder, whether or not arising from the same circumstances

…

[34]   Your offending qualifies under s 104 because the murders were committed in the course of another serious offence, the woundings, and because you have been convicted of the two counts of murder. Section 103 has been changed with effect from 1 July last year and now reflects some of the sentencing purposes set out earlier in the Act. There is a question as to whether you should be sentenced under the section as it now is or as it was at the time of the offending. I do not need to resolve that in this sentencing, given Mr Chambers’ acceptance that life imprisonment with a 17 year minimum is at least appropriate. Probably you would be entitled to be sentenced on the section as it was having regard to the New Zealand Bill of Rights Act 1990 s 25(g). In any event the result would be the same.

[35]   As regards the two counts of wounding with intent to cause grievous bodily harm – and I need to ask you and the escort to stand at this point - in my view you are in the second category of R v Hereora [1986] 2 NZLR 164, 170, which indicates that against a maximum penalty of 14 years imprisonment on those offences the appropriate penalty is 4 years imprisonment on the charge relating to Mr Maraekaiti Teau-Taupo who was only stabbed once, but 5 years imprisonment on the count relating to Mr Waka Cooper given that he was stabbed twice and in a more dangerous location. Those terms will be concurrent.

[36]   As far as the two murders are concerned, I agree with counsel’s approach. The appropriate sentence to be imposed on you for those two murders is life

imprisonment and you will be sentenced to life imprisonment on each of them. All the terms that I impose will be concurrent, that is to say, they run together.

[37]   I cannot find that the sentences of life imprisonment for the  murders would be manifestly unjust. These were both young men who - whatever their failings generally or on the night may have been - did not expect nor did they deserve to be attacked with a deadly weapon. They undoubtedly wanted to fight but equally  clearly did not expect their opponent to be armed with a knife. And, as I said, as a result of so many unfortunate decisions that night and earlier, two young men have been scarred for life, two young men have died, your children have effectively been deprived of a father for many years to come, others have been deprived of your friendship, and your bad decisions have wrecked your life.

[38]   I next come to the question of the minimum term of imprisonment that you must serve before becoming eligible for parole.

[39]   In R v Williams (CA64/04, 20 December 2004) the latest judgment dealing with this issue the Court of Appeal (paras [45]–[58], [65]-[68]) said :

[45]      The appeal against sentence by the Solicitor-General in each case concerns whether the sentencing Judge’s approach departed from the requirements laid down in ss 103 and 104 of the 2002 Act. It is common ground that those principles applied, in the case of Mr Williams’ offending, because his victim was particularly vulnerable on account of her age and in the case of Mr Olson’s victim because of the additional factor of the high level of brutality, cruelty and callousness in the offending (ss 104(e) and (g)).

[46]      In those circumstances each sentencing Judge was required by s 104(1) to impose a minimum term of imprisonment under s 103 that was in accordance with the requirements of s 104, which established that the respective offences were sufficiently serious to justify a minimum term of imprisonment of not less than 17 years, unless the Court  were satisfied that to impose such a minimum term would be manifestly unjust. Subject to that direction the duration of the minimum term had to be the minimum period of imprisonment that the Court considered to be justified having regard to the circumstances of the case, including those of the offender (s 103(4)).

[47]      These appeals do not require us to consider in detail the language expressing the qualifying circumstances in s 104. Its purpose however is to require a very substantial minimum term of imprisonment for the most serious murders, and the words expressing the qualifying  circumstances must be construed in that light. That must be borne in mind especially when

considering whether the crime was marked by a high level of brutality or if the victim was particularly vulnerable.

[48]      The first question is how this Court should approach assessing culpability when determining the justified minimum term under s 104. It is convenient to start with this Court’s decision in R v Howse [2003] 3 NZLR 767 where this Court was required to decide the appeal against sentence on the basis that s 103 applied to the sentencing but without any modification from s 104. That was because, although the offending was of a kind covered by s 104, it had taken place before the 2002 Act came into force (even though Howse was to be sentenced thereafter). …

[49]      This Court decided in Howse that, when applied on its own terms, s 103 required that the Court compare the culpability of the offending in the case before it with the standard cases of murder that would attract the statutory norm of a minimum period of imprisonment of ten years. The sentencing Court then had to decide what additional minimum period above ten years was required to achieve the necessary additional punishment, denunciation and deterrence. As well, the Court should look at sentencing decisions in other cases to ensure there was reasonable consistency of outcomes.

[50]      The need to apply s 104 in the sentencing of Mr Williams and Mr Olson required reconsideration of the datum point against which the culpability of their offending was to be assessed in order to decide the minimum term. Wild J decided to compare the culpability of Mr Williams' offending with cases within the range covered by s 104, that attracted the presumption of a 17 year minimum term. He recognised that in doing so he had to take care not to bring into consideration aggravating features which had already been taken into account in bringing the offending within s 104.

[51]      On that approach, the problem of how to avoid double counting, without compromising the statutory purpose, emerges. The difficulties of comparison faced in Howse when comparing instant offending with the range of murders that exhibit no aggravating features are compounded. This is because not only do the relative culpability of the s 104 factors vary hugely, both inherently and in any particular case, but the mere presence of a s 104 factor will not automatically give rise to a 17 year minimum term in every case. In some such cases to impose a 17 year minimum term would make the sentence manifestly unjust. These difficulties in comparing actual offending with that specified in s 104 were acknowledged by Wild J and have also been recognised in other High Court sentencing decisions such as R v Ying HC Ham T.032171 7 April 2004 Potter J.

[52]      An alternative way of proceeding, which often will be more straightforward, would be for the sentencing court in s 104 cases to approach the justified minimum period of imprisonment in two steps. First the Court would consider the degree of culpability of the instant case in relation to that involved in the standard range of murders – that is, apply the Howse approach. In the course of doing so the Court would take into account in the normal way the pertinent aggravating factors set out in s 104 to the extent they were present, any other applicable aggravating factors, and all those in mitigation. As well, the sentencing Judge would have regard to the policy of s 104 that, in general, the presence of one or more s 104 factors establishes that the murder is sufficiently serious as to justify a minimum term of

imprisonment of not less than 17 years. This element is necessary to ensure that effect is given to the legislative policy underlying s 104, which requires courts at times to impose higher minimum terms of imprisonment than they might have done had s 104 not been enacted.

[53]      The sentencing judge would then decide what minimum term of imprisonment was justified in all the circumstances of the case including those of the offender. As with cases determined solely under s 103, over  time comparisons with other relevant sentences for murder will assist in determination of the appropriate minimum term in s 104 cases.

[54]      Where the first step indicates that  the appropriate minimum period of imprisonment is 17 years or more the minimum term must reflect that assessment. In cases where the first step points to a lesser minimum term being justified, the Court would go on to the second step and consider whether to impose a minimum term of 17 years imprisonment would be manifestly unjust. If it is, the minimum term must be reassessed to what the Court considers to be justified. The Court may not, however, approach sentencing in s 104 cases on the basis that the 17 year minimum can be reduced whenever the Court considers that is appropriate. There is no warrant to interpret the provision merely as a guide to judicial discretion. The question of whether the outcome of the assessment would make a 17 year minimum term manifestly unjust must also be approached in a principled way.

“Manifestly unjust”

[55]      This brings us to the meaning of “manifestly unjust”. We start with the meaning given in the context of s 102 of the 2002 Act. In R v Rapira [2003] 3 NZLR 794, in a judgment delivered by the Chief Justice, this Court said at [121]:

The test is that the sentence of life imprisonment is manifestly unjust. That conclusion has to be made on the basis of the circumstances of the offence and the offender. It is an overall assessment. The injustice must be clear, as the use of “manifestly” requires. The assessment of manifest injustice falls to be undertaken against the register of sentencing purposes and principles identified in the Sentencing Act 2002 and in particular in the light of ss 7, 8  and 9. It is a conclusion likely to be reached in exceptional cases only, as the legislative history of s 102 suggests was the expectation. Thus, on introduction of the Sentencing and Parole Reform Bill, the Minister of Justice (at 594 New Zealand Parliamentary Debates, p 10910) referred to its retention of “a strong presumption in favour of life imprisonment for murder”:

However, in a small number of cases, such as those involving mercy killing, or where there is evidence of prolonged and severe abuse, a mandatory life sentence is not appropriate. Under this  legislation, the court will be able to consider a lesser sentence.

[56]      The Court's observations in Rapira concerning the need for the injustice to be clear and its indication that the meaning of “manifestly  unjust” was to be ascertained by reference to the sentencing purposes and

principles set out in ss 7, 8 and 9 of the Act has equal application in the context of s 104.

[57]      It does not follow, however, that the meaning conveyed by the term in the context of s104 is the same in all other respects  (cf R  v Offen [2001] 2 All ER 154). In particular, the comment that the threshold was likely to be reached in very exceptional circumstances only, such as mercy killings, reflects the particular context and history of s102. In s 102, “manifestly unjust” is the criterion for displacement of the presumption that on conviction for murder an offender should be sentenced to life imprisonment. That presumption is a long-standing and strong one, reflecting the sanctity accorded to human life in our society and its associated abhorrence of the crime of murder. This context indicates that it will rarely be clearly unjust to impose life imprisonment for the purposes of the residual discretion conferred by s 102. This Court's judgment in Rapira observed that the criterion was likely to be satisfied only in a small number of cases which would usually involve special features, giving as examples mercy killings and cases of prolonged and severe abuse of the offender by the victim.

[58]      in the context of s 104 the statutory presumption which the “manifestly unjust” test displaces is that there should be a higher level of punishment, through the mechanism of a longer minimum term of imprisonment, if specified aggravating circumstances were present in a particular murder. The purpose of the legislature here was to create a benchmark in those circumstances for the minimum period of imprisonment to be imposed as part of a sentence of life imprisonment, in a way which did not create a mandatory sentencing regime.

…

[65]      The basic principle underlying successive sentencing regimes has been the exercise of judicial discretion to determine an appropriate sentence having regard to the principles now largely codified in ss 7, 8 and 9 of the Sentencing Act. That reflects the important principle that the punishment should fit the crime, which is fundamental to the administration of justice. There is no indication that Parliament intended a more radical restriction on the sentencing discretion of Judges that excluded consideration of those important principles.

[66]      However, the specified minimum period may not be departed from lightly, as the Court is bound to give effect to the legislative policy of ensuring a 17 year minimum for the most serious murder cases. The reasons must withstand scrutiny. Marginal differences in personal circumstances or degrees of participation by co-offenders would not normally qualify. In Parrish at [21] this Court indicated that the presence of mitigating factors under s 9(2) which related to the personal circumstances of an offender would rarely displace the presumption. Powerful mitigating circumstances bearing on the offence are more likely to do so.

[67]      We conclude that a minimum term of 17 years will be manifestly unjust where the Judge decides as a matter of overall impression that  the case falls outside the scope of the legislative policy that murders with specified features are sufficiently serious to justify at least that term. That conclusion can be reached only if the circumstances of the offence and the offender are such that the case does not fall within the band of culpability of

a qualifying murder. In that sense they will be exceptional but such cases need not be rare. As well, the conclusion may be reached  only on the basis of clearly demonstrable factors that withstand objective scrutiny. Judges must guard against allowing discounts based on favourable subjective views of the case. The sentencing discretion of Judges is limited in that respect.

[68]      Beyond that, what level of disparity amounts to manifest injustice remains a matter of sound sentencing judgement that is not capable of  precise determination. It may be helpful, however, to indicate that when the qualifying factor has only peripheral significance in the case the statutory minimum term may be manifestly unjust. Otherwise, where the culpability attaching to the offence is relatively low having regard to the range of cases caught by s 104, the circumstances of the offender may make the sentence manifestly unjust.

[40]In Parrish decided a year earlier the Court said (at paras [19] and [20]) :

[19]      A determination of manifest injustice requires an assessment of an offender’s personal circumstances alongside the circumstances of the offending and in light of the sentencing purposes and principles. The sentencer must be able to reach a clear view of demonstrable injustice, because this is what the description “manifestly” requires. Therefore, once one or more of the prescribed circumstances in s104 has been identified, it is only in exceptional circumstances that the starting point of 17 years can be departed from. This was made clear in R v Rapira & ors [2003] 3 NZLR 794. In that case the Court addressed the use of the same phrase “unless … the sentence … would be manifestly unjust”, as it appears in s102. Plainly it carries the same meaning in both sections. Specifically, at para 121, this Court said:

The assessment of manifest injustice falls to be undertaken against the register of sentencing purposes and principles identified in the Sentencing Act 2002 and in particular in the light of ss7, 8 and 9. It is a conclusion likely to be reached in exceptional cases only, as the legislative history of s102 suggests was the expectation. Thus, on introduction of the Sentencing and Parole Reform Bill, the Minister of Justice (at 594 NZPD 10910) referred to its retention of “a strong presumption in favour of life imprisonment for murder”:

However, in a small number of cases, such as those involving mercy killing, or where there is evidence of prolonged and severe abuse, a mandatory life sentence is not appropriate. Under this legislation, the court will be able to consider a lesser sentence.

While youth is a factor properly to be taken into account in sentencing, it is part only of a wider public interest (R v Fatu [1989] 3 NZLR 419, 431; R v Mahoni (1998) 15 CRNZ 428, 436). Where

the offending is grave, the scope to take account of youth may be greatly circumscribed. …

[20]      In the appellant's case, although there was some duplication in the aggravating factors identified by the Crown, at least four of the prescribed circumstances in s104 were present: calculated planning; unlawful entry into

the victim’s unit; a high level of brutality and callousness; and the vulnerability of the victim. The Judge considered however only the appellant’s personal circumstances when he made his assessment as to where the interests of justice lay. There were in fact no circumstances of the offending that could have justified a departure from the mandatory minimum term in s104. The mitigating factors identified of old age, poor health and previous good record had no real or direct bearing on the appellant’s offending: rather, his premeditated act was vindictive and motivated by jealousy.

[41]   The difficulty in imposing a minimum term is that the Court of Appeal makes it clear that one must guard against double-counting in the sense of what qualifies a person such as yourself to be sentenced under s 104 also being regarded as an aggravating feature. In your case the qualification aspect is probably clearer given that the section specifically refers to conviction for two or more murders and you, of course, have been convicted of two murders even though they arise out of the same incident.

[42]   I need to look, first, at your overall culpability and the standard sentences for murders. I hope it does not sound callous if I say that the murders in this case were relatively straightforward as far as murders go. Of the offences which come before this Court where the charge is murder, they all too often involve stabbing with a knife where death results.

[43]   One also needs to take the policy into account under s 104 and it is clear that Parliament intended that Judges should impose at least a 17 year minimum for conviction for murder unless it would be manifestly unjust.

[44]   In that regard the decision in Williams explains what “manifestly unjust” amounts to. In my view, I could not find that it  would be  manifestly unjust for you  to be sentenced to a minimum period of 17 years before becoming eligible  for parole. A reduction from that term would not be justified in your circumstances or those of the offences. The real question is whether I should increase the minimum term above 17 years as the Crown seeks as a result of what happened that night.

[45]   Even though there were two murders, even though there were two young men seriously injured, in my view this is not a case to  exceed the statutory minimum of 17 years. This was an incident which, as I have explained, resulted from a number

of unfortunate situations but it was one incident, brief, from which unfortunately two deaths resulted and there were two serious injuries, but in my view it would be appropriate in those circumstances not to increase the statutory minimum term.

[46]   The result, therefore, is that you are sentenced to 4 and 5 years imprisonment for the wounding with intent to cause grievous bodily harm on the two young men mentioned and life imprisonment on the two murders – all those terms will be concurrent. You will serve the statutory minimum of 17 years in prison before becoming eligible for parole on the murders.

[47]   As I have said, it is an unfortunate coincidence that the term you will spend  in gaol is as long as Tahiwi Herangi lived. Stand down.

………………………………..

WILLIAMS J

15 February 2005