R v Te Hiko

[2017] NZHC 1260

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2016-063-001304 [2017] NZHC 1260

THE QUEEN

v

JAMES WILLIAM MANUOA TE HIKO

Hearing:	9 June 2017
Appearances:	A Gordon and S Casey for Crown F C K Wood for Prisoner
Judgment:	9 June 2017

SENTENCING NOTES OF GILBERT J

Solicitors:

Gordon Pilditch, Rotorua

Tompkins Wake, Rotorua

R v TE HIKO [2017] NZHC 1260 [9 June 2017]

Introduction

[1]      James Te Hiko, you appear for sentence today having been found guilty by a jury of murdering Nina Thompson.

Facts

[2]      It is necessary to start by relating the facts of your offending because they are critical to the outcome.  You and Ms Thompson had been in a relationship for some time but there had been a history of domestic violence, contributed to by your own violent upbringing and alcohol and drug abuse.  To your credit, you had recognised that you needed help and had taken constructive steps to address your addiction and other issues.   You were receiving counselling but clearly needed more intensive treatment in a residential programme.  Unfortunately, there is a serious shortage of such programmes and you were waiting for a placement for such treatment at the time of the murder.

[3]      Late in the afternoon of 19 April 2016, two of Ms Thompson’s friends arrived at your house with some alcohol.  You were working outside while Ms Thompson was inside doing housework.   You were not happy about these friends bringing alcohol to your home because of the addiction issues you were suffering from.  You had been receiving counselling through the Raukawa Trust and had been attending Alcoholics Anonymous meetings over the past six months.   You knew that you needed to stay away from alcohol and other drugs but you had not succeeded in doing so.

[4]      You and Ms Thompson enjoyed the company of these friends and you drank a few stubbies of beer with them.   It seems that it was a pleasant and convivial evening and everyone seemed happy at the time the two women left, which would have been sometime between 9 and 10 pm.

[5]      You would not have been significantly affected by alcohol at that stage.   A total of 18 stubbies of beer had been consumed by five people over this four to five hour period. You claim that you also smoked methamphetamine during the course of the evening although no one witnessed this and there was no independent evidence

to support your claim. The meth pipes you said you used were not located during the thorough police search of the property over the following days.   You sent a text message  at  7.25 pm  that  evening  to  a  friend  asking  if  he  could  get  you  some methamphetamine.   This indicates that you did not have any methamphetamine at that stage.   Your friend replied that none was available.   You also claim that you smoked some cannabis.  Again, there is no independent evidence that this occurred although a quantity of cannabis was found in the boot of your car.

[6]      I gained the impression during the trial that you sought to minimise your culpability and awareness of what you were doing by claiming that you were significantly affected by alcohol and drugs.  I do not accept that you were.  The jury was clearly satisfied that you knew what you were doing and I agree with that assessment.

[7]      We have only your account of the events that led to your brutal assault on Ms Thompson.   You claim to have become angry about Ms Thompson allowing alcohol to be brought into the home and told her that you intended to leave her if she had not changed by the time you got out of rehab.  You claim that Ms Thompson responded by saying “how do you know I haven’t replaced you already?” You say that you asked her what she meant by this but she would not reply.

[8]      Thinking that she may have been unfaithful, you flew into a rage.  Your own evidence was that you hit Ms Thompson while she was seated at the table in the kitchen area with such force that she ended up in the next room.   You said you screamed at her, lifted her up off the floor by her hair and punched her again.  You then threw her back out into the kitchen.   You picked her up off the floor and punched  her  again  before  grabbing  her  phone  and  attempting  to  read  the  text messages on it.  According to your evidence, Ms Thompson went into the bathroom, bleeding from her head. You could not read the messages on her phone.  This further angered you.  You stormed into the bathroom and punched her again, knocking her off the toilet where she was sitting.  You said that you then threw her onto the bed in the main part of the house.  You say that throughout this attack Ms Thompson never said a word.

[9]      Again, according to your evidence, Ms Thompson went into the bedroom. You followed her in and in your own words you “upper cutted” her into the far side of the room by the dresser.  You say that you then kicked her “in the guts” while she was lying on the floor.  As she tried to get up, you say you kicked her again leaving her lying in the foetal position facing towards the dresser.  You say that you picked her up again by her hair and threw her onto the bed.  A little later, you say you lifted her up off the bed by her hair and punched her and left her lying on the floor.

[10]     When asked by your counsel how many times you hit Ms Thompson, you replied only four or five but acknowledged that you were throwing her around as well.   When asked about the pathologist’s evidence that Ms Thompson had been struck no less than 70 times, you said “nowhere near 70, a little white man might have to hit somebody 70 times but not me”.  You are a powerfully built man and Ms Thompson was slight, weighing only 63 kilograms.

[11]     I have no doubt that  you significantly downplayed in  your evidence  the prolonged and brutal nature of your attack on Ms Thompson that night.  It is clear that you completely lost control and beat her to death in a prolonged, extraordinarily violent and frenzied attack.   The evidence of this was overwhelming and it is not surprising that the jury returned so promptly with their guilty verdict.

[12]     The pathologist’s evidence was that you struck Ms Thompson no fewer than

70 times including at least ten blows to her head and face.  This evidence was not challenged.  Blood spatter was found on every surface in the bedroom, including the ceiling.  Not only did you strike Ms Thompson repeatedly and with tremendous force using a closed fist and by kicking her, I have no doubt, despite your denial, that you also struck her several times on her head and body with the heavy iron pole that was produced in evidence.  Ms Thompson’s blood was found on both ends of this pole. These were contact bloodstains meaning that the pole had come into contact with Ms Thompson’s   bloodied   head   or   body,   very   likely   both.      A   strand   of Ms Thompson’s bloodstained hair was found on the pole.  The pathologist found a number of injuries on Ms Thompson’s head and body that were consistent with her having been struck with the metal pole.

[13]     It is clear from the pattern of blood spatter that you inflicted many of the blows while Ms Thompson was lying on the floor or after you had lifted her up off the floor by her hair.  Large clumps of Ms Thompson’s hair were found around the house and on the ground outside the bedroom window where you had thrown them. Ms Thompson’s entire body was covered in injuries, many of which were defensive injuries to her arms and legs as she tried to protect herself.

[14]     At some stage during the attack you struck Ms Thompson on the head with such force that her head rotated rapidly around its central axis.   This would have caused her to become rapidly and permanently unconscious within one minute.   The pathologist considers that Ms Thompson would have survived for at least 35 minutes and possibly up to about two hours after this but her injuries were such that she would never have been able to recover.  Because she was unconscious, she would not have been able to protect her airways and ultimately would have died from the inhalation of blood and vomit.

[15]     Your attack did not end until it was obvious that Ms Thompson was deeply unconscious.  You chose not to seek medical attention or help for her.   You changed her clothes, put her in the bed and left her to die.  You went to sleep yourself.  In the morning, you called your mother before contacting authorities, and then showered to prepare yourself for your arrest.

Victim impact statements

[16]     I   have   read   the   powerful   and   heartfelt   victim   impact   statements. Ms Thompson was only 41 years old at the time of her death.  She was a mother of four children and a grandmother of one.  Today, we have heard the moving victim impact statements read to the Court.  All spoke of Ms Thompson’s love of life, her beauty, her distinctive and contagious laugh, and her fun nature.   She was a loved and cherished mother, grandmother, and family member.  Clearly, her loss in these horrific circumstances will have been heartbreaking for all of those close to her.

[17]     To Ms Thompon’s whānau and friends here today, I offer you the Court’s

condolences.  I have no doubt that hearing the evidence given at this trial, including

from Mr Te Hiko, must have been a harrowing experience for you.   You have conducted yourselves throughout with remarkable dignity.

Pre-sentence report

[18]     Mr Te Hiko, I have read your pre-sentence report.  You are 45 years of age. You have five children and two grandchildren.  You are supported by your parents, sister and children who continue to visit you in prison.

[19]     You report that you came from a home where there was intergenerational violence.  You say that you witnessed violence on a daily basis in your formative years and were also the victim of abuse yourself.  This upbringing conditioned you to viewing violence as a normal feature of a relationship.

[20]     Despite your hard upbringing and limited schooling, you have demonstrated that you have intelligence, ability and a good work ethic.  You write well and can express yourself clearly.  You worked as a bushman for 17 years after leaving school at the age of 14.  During this period, you obtained numerous certificates qualifying you as a bushman and logger.  You then commenced work as a rigger and scaffolder, qualifying in 2011 with a National Certificate in Advanced Scaffolding (level 4). You have succeeded in both of these fields and have had no difficulty obtaining well- paid employment.   It is clear that  you are a man with considerable ability and potential.

[21]     Your downfall has been your drug and alcohol abuse which has fuelled your propensity to commit violence.  You have numerous previous convictions spanning the past 30 years.   However, many of these are for driving offences and are not relevant today.  Of particular concern for present purposes are your five convictions for male assaults female.  These offences, which were committed in August 1992, September 1999, December 1999, April 2008 and July 2008, reveal a long-standing and disturbing pattern of violence against women. You also have two convictions for assault, assault on a police officer in May 1993 and assault with a blunt instrument in April 2010.

[22]     The  probation  officer  assesses  you  as  having  a  very  harmful  pattern  of alcohol and drug use.   You told the probation officer that you used to consume alcohol almost daily and this created an intense urge to use methamphetamine, which you were also using on a daily basis.

[23]     The probation officer reports that you showed no remorse for what you did and attempted to minimise your behaviour and place blame on the victim to justify your attack.   You continued to suggest that Ms Thompson somehow brought the attack on herself.  I have read your letter expressing remorse and complaining that the probation  officer was  biased  against  you.    However,  the probation  officer’s account is entirely consistent with your plea of not guilty and the evidence you gave at the trial.  You clearly have not yet accepted full responsibility for your actions and I do not accept that you have demonstrated genuine remorse.

[24]     The probation officer assesses you as having a high risk of causing harm to others and a similarly high risk of reoffending.

Life imprisonment

[25]     Anyone convicted of murder must be sentenced to life imprisonment unless this would be manifestly unjust given the circumstances of the offence and the offender.  There is no suggestion that your sentence should be anything other than life imprisonment and that is the sentence that I will impose on you.

Minimum period of imprisonment

[26]     I also need to decide how long you should spend in prison before you can be considered for parole.  Section 104 of the Sentencing Act 2002 states that the Court must  make  an  order  imposing  a  minimum  period  of  imprisonment  of  at  least

17 years in  certain  circumstances,  unless  this  would  be manifestly unjust.   The defined circumstances include where the murder was committed with a high level of brutality, cruelty, depravity, or callousness.   The Crown submits that this was the case here and that the minimum period of imprisonment should be 17 to 18 years. Your counsel, Mr Wood, disagrees and contends that s 104 is not engaged in your

case.  Your counsel submits that the appropriate minimum period of imprisonment should be between 11 and 13 years.

[27]     The divergent views of Crown and defence on whether s 104 is engaged are explained by differing views about the relevant facts.  Your counsel, acting on your instructions, submits that the offending was comparatively brief with only a few punches and kicks being administered and you maintain that the pole was not used. He notes your suggestion that Ms Thompson was suffering from emphysema and this may have contributed to her death.  Your counsel submits that you are genuinely remorseful for what you did.  I simply do not accept those submissions.  They are based on a misconception of what actually happened.  I am satisfied that this murder was committed with a high level of brutality and callousness and that s 104 of the Sentencing Act is squarely engaged.

[28]     You punched and kicked Ms Thompson at least 70 times with tremendous force.  You lifted her off the ground by her hair on several occasions and continued to attack her while she was unconscious and completely defenceless. You also struck her several times with the heavy iron pole including on her head and body.  It would have been clear to you that Ms Thompson was unconscious and fighting for her life, yet you chose not to seek medical attention for her.

[29]     For those reasons, I consider that s 104 of the Sentencing Act applies.  This means that I am obliged to impose a minimum period of imprisonment of at least

17 years  unless  it  would  be  manifestly  unjust  to  do  so.     In  my  view,  the circumstances here fall squarely within what Parliament must have had in contemplation  when  enacting s 104(e) and  it  would  not  be manifestly unjust  to impose that minimum period of 17 years’ imprisonment on you.

[30]     However, I consider that the minimum period of imprisonment need not be more than 17 years.  In my view, that is sufficient to hold you accountable for the harm you have caused, to denounce your conduct, and protect the community.   I hope that you will take advantage of the rehabilitative programmes that will be available to you in prison and that you are able to realise the considerable potential which you undoubtedly have, when you are ultimately released.

[31]     Mr Te Hiko, please stand.

[32]     On the charge of murder I sentence you to life imprisonment. [33]     You are to serve a minimum period of 17 years’ imprisonment.

[34]     Please stand down.

M A Gilbert J