R v Te Maru

[2020] NZHC 2084

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-044-541

[2020] NZHC 2084

THE QUEEN

v

PETER JAMES TE MARU

Hearing:	18 August 2020
Counsel:	AM McClintock and AD Luck for Crown RM Mansfield and SR Lack for Mr Te Maru
Sentenced:	18 August 2020

SENTENCING NOTES OF FITZGERALD J

Solicitors:           Meredith Connell, Auckland To:       R Mansfield, Auckland

S Lack, Auckland

R v Te Maru [2020] NZHC 2084 [18 August 2020]

Introduction

[1]    Mr Te Maru, you appear for sentencing today having been found guilty by a jury of the murder of Marino Te Maru, your brother. Given the present COVID-19 alert level three restrictions, this sentencing is taking place with you appearing by AVL, which is obviously not the ideal scenario given the nature of today’s hearing. But this sentencing has been delayed for some time now, for a number of reasons, and it is important that sentencing proceeds without further delay, to give you, and your whānau, certainty going forward.

[2]    Before saying anything further, I first want to formally acknowledge your parents and other members of your whānau who have joined by AVL. Tēnā koutou and I am very happy we have been able to make those arrangements for you this morning, as I said earlier. I also acknowledge that many of your broader whānau were present at your trial earlier this year. It is clear that Marino’s death has had a tremendous impact on them all, as I know it has on you as well. But it is equally clear that, despite the terrible tragedy that occurred, your parents and your whānau continue to unconditionally love and support you. I have no doubt that will be of great comfort to you at this time.

[3]    Your mother has read her victim impact statement today, which takes real courage. She speaks of the hardship Marino’s death has caused and how her mokopuna have been left without fathers. Your own father is also now unwell. But your mother also speaks of the interconnectedness of your whānau and how they have made peace with what has occurred. Your mother notes the role alcohol played on the night Marino died. She says whatever sentence is imposed on you today, it will also be theirs – they have lost two sons. She knows that your mamae (pain) will always remain with you but so will the love that your whānau has for you. I also formally acknowledge the grief and pain your whānau must be experiencing and I extend to them the Court’s sincerest sympathy.

[4]    There is another point I want to address at the outset, which I flagged with counsel. I have read the various reports prepared for today’s sentencing and it is clear you remain of the view that you did not intend to kill Marino. I saw and heard all the

evidence at your trial, and am satisfied that the evidence did not establish that you actually intended to kill Marino. But as you are aware, and as we have discussed this morning, the law says that another form of mental state is sufficient for the offence of murder, being what we commonly refer to as “reckless intent”. That is, the offender meant to cause the victim harm known to be likely to cause death, and was reckless whether death ensued or not. From the questions the jury asked during their deliberations, I think it is clear they reached their verdict on the basis of this reckless form of intent. That is the basis upon which I will sentence you today. I also accept without hesitation that you are devastated by what happened that night and are truly remorseful for Marino’s death.

[5]    As your lawyers have no doubt explained to you, the statute which governs sentencing says that I must impose a life sentence, with a minimum period of imprisonment of at least 10 years, unless it would be manifestly unjust to do so.1 I will come back to this later in these sentencing notes. What I propose to do next is to summarise the facts of the offending. These will be well known to you and others participating in this hearing today, but despite the form in which today’s hearing is proceeding, sentencing is a public process and it is important that the broader public is aware of the basis upon which I am sentencing you today.

Facts of the offending

[6]    Marino was roughly two years older than you. Generally, and despite there being some “history” between you, you got on well and you characterise your relationship with him as being tight. Prior to the events which led to his death, you had recently started living with him and other family members, and you were also working together.

[7]    On the evening of Sunday 10 February 2019, you and Marino had finished work and were at your home with family and friends. Fish caught earlier in the day were being prepared for a meal. Alcohol was also being consumed. You had some beer and then some homebrew gin. Later in the evening, you, Marino and two other relatives left the address by car to go to Warkworth to collect some more alcohol and

1      Sentencing Act 2002, s 102(1).

buy cigarettes. By all accounts, tensions between you and Marino, over personal matters between you dating back many years, began to escalate, leading to a physical scuffle between the two of you in the car. Things settled down enough to continue the drive home, but once there, the fighting began again and escalated. As one witness described it, “it got more intense”, with punches being thrown by both of you on the grass verge outside the property. Family members tried to separate the two of you.

[8]    At that point, you went inside the house. But things escalated again when Marino began smashing the windows of your car with a concrete block. The car was important to you. You realised what he was doing and “saw red”. You went back outside with a metal knife sharpener which you used to hit Marino, a witness saw you do that two or three times, causing lacerations on Marino’s head and on his back. It seems that Marino still smashed your car with the block at this time. You then returned inside and grabbed a butcher’s knife. It is not known from where you got it, and you later said you did not actually recall getting it. You went back outside. It is not entirely clear what Marino was doing at this point, but one witness who was there at the time said Marino was saying that he was sorry and seemed to be trying to calm things down. You stabbed Marino in the chest with the knife.

[9]    In your DVD interview with Police early the following morning, you said you couldn’t recall this precise moment and had only intended to use the knife to scare Marino. But given the jury’s verdict, they must have rejected that notion. You also said in the DVD interview at one point that you had wanted to hurt Marino. The single stab wound (which was 11 centimetres deep) was the cause of his death. The blow pierced his heart. You immediately threw the knife onto the grass at the front of the house. Evidence suggested that you initially tried to revive Marino while others attempted to administer first aid.

[10]   You then walked out of the address and down the street. A family member found you and waited with you until Police arrived. On all accounts, you were fully compliant with the Police and their investigation. A blood test – which occurred some hours after the stabbing – recorded an alcohol level of 13 milligrams of alcohol per 100 millilitres of blood. That is quite a bit lower than the threshold for legally driving

in New Zealand.2 While it is likely your alcohol level was higher than this at the time of the stabbing, there was no suggestion that you were so intoxicated to the point you could not act of your own volition. As I have discussed with Mr Mansfield earlier, I have seen references in Dr Duff’s report to “severe intoxication”. I am not satisfied the evidence at trial established a “severe” degree of intoxication. No witness suggested that. The jury’s verdict also means that, regardless of how much alcohol you had consumed, it was of the view that you were still able to form the intent to perform the physical act of stabbing Marino. And the law is clear that I cannot take intoxication into account as a mitigating factor of the offending in any event.3

[11]   In the Department of Corrections pre-sentence report, you are recorded as describing your offending as a “moment of rage”.  A similar theme emerges from   Dr Duff’s report. Having seen and heard all the evidence, I think that is a fair description of events.

Personal circumstances of Mr Te Maru

[12]   I turn now to your personal circumstances. You are now 34 years old and a father of three. You are of Ngāpuhi descent and have good involvement in and connections with your culture. Your grandparents raised you in South Auckland and while then you may have preferred to be with your immediate family, you now believe it was the best thing for you. What is clear to me from all the materials before the Court is that irrespective of who you were living with at any given point in time, you were and remain close with your whole whānau.

Pre-sentence report

[13]   The Department of Corrections pre-sentence report-writer records that you have always had a constant stream of employment. You also reported having a structured lifestyle and a good social circle within your area. However, you advised the report-writer that your alcohol consumption had “increased markedly” since you

2      The legal blood alcohol limit for a New Zealand driver over 20 years of age is 50 milligrams per 100 millilitres of blood; see s 11(b) of the Land Transport Act 1998.

3      Sentencing Act 2002, s 9(3).

returned home (you had recently been in the Hawkes Bay). You recognised that your alcohol consumption at the time of the offending impacted on what occurred.

[14]   You acknowledged to the report writer that you have some anger management issues but you are willing to address these. The report-writer notes this is your first New Zealand conviction though you have domestic violence related convictions in Australia which resulted in your deportation.

[15]   You accept the details of the events of 10 February last year and have come to terms with what happened. However, as I noted earlier, you maintain you are not guilty of murder, but rather of manslaughter. As I have also said earlier, however, I do not believe this detracts from your remorse or lessens its genuineness. And you are clearly aware that the consequences of what happened are felt by not only you, but also your family. The insight you show into the factors which contributed to your offending is encouraging, as is your obvious willingness to address them.

Psychiatric report

[16]   I also have had the benefit of the detailed psychiatric report prepared on your behalf by Dr Duff, a consultant psychiatrist. What I say now is just a brief overview of some of the key points from the report, but I have studied it carefully and have found it very helpful.

[17]   Dr Duff interviewed you on 3 July for over three hours. Your earlier years were discussed in some detail. You told Dr Duff that your nana and koro were good parents, but that you felt  somewhat  excluded  from  your  immediate  family unit. Dr Duff notes the “highly complex relationship” you had with Marino.

[18]   In 1998, after the death of your grandmother, your family moved to Australia while you moved to the Hokianga area in Northland. You enjoyed hunting and fishing, and excelled at rugby. You later played representative rugby for Northland. At 18, you joined your family in Queensland. You played rugby there, with the hope of making a career in rugby league, but recurring injuries meant this was not to be. You then worked with Marino and your father in their arboreal business.

[19]   Your family returned to New Zealand in around 2014 to support your sick grandfather. You remained in Australia and reported to Dr Duff that you developed a substance abuse problem which ultimately led to your convictions. In 2017, you were deported as a result. When back in New Zealand, you reported being clean from drugs and held various jobs. You moved in with Marino and other family members about a week prior to the events in question.

[20]   Dr Duff discusses the issue of provocation in some detail: Marino skipping a favourite song of your daughter’s in the car, raising past resentments in relation to your relationship with his former partner; telling you to leave the property when you returned home and then damaging your car. Dr Duff considers it clear that if Marino had not started damaging your car then the serious escalation of events would not have occurred. Dr Duff considers your loss of recall about the details of the offending is likely attributable to the rage you felt at the time.

[21]   Dr Duff considers that you do not meet diagnostic criteria for any specific psychiatric illness or severe mental illness, either now or prior to these events. There is no evidence of cognitive impairment, traumatic brain injuries or the like. Dr Duff notes you have experienced symptoms such as depression and post-traumatic stress disorder but these symptoms have improved in the past 17 months.

The parties’ submissions

[22]   You have heard the lawyers speaking this morning, and may also have read their detailed written submissions. The Crown identifies what it says are two aggravating features of your offending: first, your decision to seek out a weapon, which led to a physical fight between two brothers escalating to a murder; and second, the use of increasingly dangerous weapons. The Crown emphasises that there was a clear break in the fighting but you still chose to re-engage.

[23]   The Crown submits there are no mitigating features of your offending. It says that Marino’s conduct in damaging your car cannot be characterised as provocation, given that at the point when you returned with the knife, he was apologising to you and attempting to calm the situation down. Ms McClintock has made detailed submissions this morning in response to the defence submission that life imprisonment

would be manifestly unjust. In short, the overall thrust of Ms McClintock’s submissions is that the threshold for concluding that life imprisonment would be manifestly unjust is very high indeed, and this case does not meet the threshold, there being, sadly, nothing particularly exceptional about the offending, or the offender, in this case.

[24]   The Crown refers to several other cases which it says involved offending which is similar to yours,4 and says those cases indicate a minimum period of imprisonment in comparable circumstances have ranged between 10 to 12 years. It therefore says that in your circumstances, a life sentence with a minimum period of imprisonment of at least 10 years is appropriate. While the Crown recognises you have previous convictions in Australia, it quite responsibly does not seek an uplift in relation to them.

[25]   Ms Dyhrberg QC, and more recently Mr Mansfield, on your behalf, say that a sentence of life imprisonment would be manifestly unjust given your personal circumstances and the nature of the offending itself. Mr Mansfield says a finite sentence of 10 years’ imprisonment is appropriate, with a minimum period of imprisonment of five years.

[26]   Your lawyers have referred to several previous decisions of this Court which have departed from the presumption of life imprisonment in favour of a finite sentence, and says the same result should follow in this case for the following reasons, which Mr Mansfield emphasises operate in combination.

[27]   First, it is highly probable the jury’s verdict reflects a finding that you had reckless intent, as opposed to actual intent, when you stabbed Marino. As I have said, I agree with that assessment. Mr Mansfield says that even recklessness must be qualified, given you were intoxicated and acting in a fast-moving situation. While intoxication itself cannot be a mitigating factor, Mr Mansfield submits it bears on the extent to which you consciously contemplated the consequences of your actions. Accordingly, he says your culpability is lower.

4      Referring to R v Millar HC Auckland CRI-2010-090-5044, 21 June 2011; R v Ray [2014] NZHC 599; R v Mahuki HC Hamilton CRI-2009-019-8099, 3 September 2010; and R v Browne [2017] NZHC 2389.

[28]   Second, Mr Mansfield refers to Marino repeatedly smashing your vehicle with a concrete block. He submits that provocation – while it may not be sufficient on its own – is a factor which reduces your culpability and makes life imprisonment inappropriate, particularly when viewed in the broader context of the history and background of the two brothers and their relationship.

[29]   Third, Mr Mansfield submits there is an absence of strong indicators that life imprisonment is appropriate. He says that there are no serious concerns about community protection and your offending must be regarded as circumstantial. Accordingly, there is less of a need for specific deterrence, despite general deterrence remaining relevant.

[30]   Fourth, Mr Mansfield points to the impact of your offending on your family. He says that your whānau have lost two sons, brothers, nephews and fathers and that a determinate sentence would avoid perpetuating this tragedy in the family.

[31]   Mr Mansfield points to the broader need for mercy and makes additional submissions which address the report of Dr Duff. He says the report of Dr Duff is relevant in two ways. First, it identifies how the fact you caused Marino’s death had an ongoing mental impact on you. Second, you lost control because of Marino’s provocative actions, against the complex relationship which existed since your childhood.

Presumption of life imprisonment

[32]   As I have said earlier, the default position is that in the case of murder, whether on the basis of actual intent or reckless intent, the sentence is one of life imprisonment (with a minimum period of imprisonment of at least 10 years). The Court of Appeal has said:5

Parliament has mandated that life imprisonment should be the standard sentencing response to a conviction for murder, reflecting society’s recognition of the sanctity of human life and its condemnation of anybody who wrongfully takes another life.

5      R v Cunnard [2014] NZCA 138 at [16] (footnote omitted).

[33]   In more recent years, it has been possible for Judges to impose something lesser than a life sentence where it would be manifestly unjust to do so. But the law is also clear that the threshold for departing from a sentence of life imprisonment is a very high one. The Court of Appeal has said this will be in “exceptional cases only”.6

[34]   As I have said earlier, your lawyers have referred me to a large number of cases in this regard. The Court of Appeal has emphasised that the class of cases for which life imprisonment will be manifestly unjust is not closed and there must be an overall assessment made by reference to the circumstances of both the offending and the offender.7 But having read all of the cases to which I have been referred, there are at least some themes or patterns that can be derived from them. To date, cases in which life imprisonment has been found to be manifestly unjust involve offenders with significant mental impairments which have been causative, in whole or in part, of their offending;8 what have been referred to as mercy killings – for example, a mother killing her severely disabled child,9 or a husband killing his wife with severe dementia;10 offenders who have killed their partner or other loved one after a sustained period of physical and/or mental abuse;11 a young offender of only 13 years old;12 or offenders guilty of the offence of murder but only indirectly involved in the offending itself.13 I again acknowledge that the categories are not closed, but the cases I have just referred to give a flavour of the sort of circumstances needed before departing from the mandated sentence of life imprisonment.

[35]   Mr Te Maru, Ms Dyhrberg and Mr Mansfield have each said everything that can be said on your behalf in support of a sentence less than life imprisonment. And it is correct that this case is a real tragedy; as is often the case, sadly, in the offence of murder. But having regard to all the circumstances relating to your offending and your

6      R v Rapira [2003] 3 NZLR 794 (CA) at [121].

7      R v Cunnard, above n 5, at [19].

8      For example, R v Mikaele HC Auckland T013638, 30 August 2002; R v Reid HC Auckland CRI- 2008-090-2203, 4 February 2011; R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775; R v Rihia [2012] NZHC 2720; and R v Cole [2017] NZHC 517.

9      R v Knox [2016] NZHC 3136.

10 R v Law (2002) 19 CRNZ 500 (HC).

11     R v Rihia [2012] NZHC 2720.

12     R v Nelson [2012] NZHC 3570.

13     R v Cunnard, above n 5.

own personal circumstances, I am clear in my view that, on a principled approach, life imprisonment would not be manifestly unjust.

[36]   First, I accept the Crown’s submission that there were some aggravating factors to the offending, and in particular, the escalation to the use of a knife. I do not say that you went to get the knife intending at that point to stab Marino. Nevertheless, you made a decision to go and get a knife. You had time on the way to and from the house to get the knife to take a different course. But you got the knife and returned outside to Marino. That left you in the position where, if things got out of control in any way from your perspective, you were at risk of using the knife, which is precisely what occurred.

[37]   Second, I accept that but for Marino smashing your car, events may well have been different. Provocation can mitigate a sentence to the extent it bears upon culpability.14 I accept that Marino’s actions in smashing your car angered you and his actions contextualise your offending, particularly given the complexities of your relationship with him. But Marino’s conduct does not diminish your culpability in a way which would displace the presumption of life imprisonment. The Court of Appeal has made clear that “[p]rovocation will not be such as to warrant a sentence of less than life imprisonment… other than in exceptional circumstances.”15 Marino’s actions in smashing your car did not give rise to any risk to you personally. Getting and then using the knife to stab Marino was wholly disproportionate to the provocation of his actions, including the damage to your car and the earlier fight between you.

[38]   I have also accepted that you did not have actual intent to kill Marino, and you instead had reckless intent. But as noted, while providing context, both these forms of intent are sufficient to found a conviction for murder.16 And while your alcohol consumption may well have affected the choices you made that evening, the evidence does not suggest you were significantly intoxicated, and your voluntary alcohol consumption is not something I can take into account as a mitigating factor in any event.

14     Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369 at [71].

15 At [72].

16     Crimes Act 1961, s 167(b).

[39]   You were not suffering any of the mental impairments often seen in cases such as this. I also agree that the events of the night in question appear to be somewhat “aberrant” or abnormal behaviour for you, but that in and of itself does not meet the manifestly unjust threshold.17 I also accept that while you have some underlying anger management issues, you do not appear, at this time, to present a real risk to the public going forward. But in the case of murder, and reflecting the sanctity of life, sentencing purposes particularly engaged in a case like this are to hold you accountable for the harm to the victim, to denounce the conduct giving rise to the offending and to deter others from similar offending. In addition, the trauma and guilt which I accept you are now experiencing are unfortunately a very real consequence of your actions.

[40]   I am also mindful of the need for consistency in sentencing (though it is not in and of itself determinative). In cases similar to yours, the presumption in favour of life imprisonment has not been displaced.18

[41]   Finally, in certain circumstances, where an otherwise appropriate sentence would be disproportionately severe, the principle of mercy may act to ameliorate a sentence.19 However, I do not consider life imprisonment to be disproportionately severe in your case. The presumption in favour of life imprisonment is long-standing and while the Sentencing Act 2002 confers a discretion not to impose it in broadly framed terms, the authorities which are binding on me are clear that it is to be exercised in exceptional cases only.20 For the reasons I have explained, I do not consider there to be a principled basis upon which to exercise that discretion.

Minimum period of imprisonment

[42]   On the basis a sentence of life imprisonment is the appropriate sentencing outcome in this case, this leaves the question of what the minimum period of imprisonment should be. I must order a minimum period of at least 10 years, and it must be the minimum term necessary to hold you accountable, denounce your conduct and deter both you and others from committing the same or a similar offence, and to

17     See, for example, R v Lyttle [2019] NZHC 3454 at [42].

18     See, for example, R v Mahuki, above n 4; and R v Borell [2018] NZHC 3281.

19     Sentencing Act 2002, s 8(h). See also R v Luce [2007] NZCA 476 at [22].

20     R v Smail [2007] 1 NZLR 411 (CA) at [14]. See also R v Williams [2005] 2 NZLR 506 (CA) at [57]; and R v Rapira [2003] 3 NZLR 794 (CA) at [121].

protect the community.21 In certain cases, a minimum period of at least 17 years must be imposed.22 As the Crown agrees, this is clearly not such a case.

[43]   All the reasons your lawyers have advanced to support a sentence of something less than life imprisonment persuade me that there is no need for a minimum period of imprisonment of more than 10 years. Your culpability, in the context of the offence of murder, is at the lower end of the scale. There are mitigating factors personal to you, including your genuine remorse. The materials before the Court suggest your prospects of rehabilitation are very good. No uplift for your previous convictions, which were entered in Australia, is warranted.

[44]   Counsel have also referred me to sentencing decisions which are broadly comparable to yours. I have also found some others, including cases of a brother stabbing a brother. I do not intend to go through each of these, as no case is truly the same as another. However, those decisions also suggest a minimum period of 10 years’ imprisonment would be appropriate.23 That is therefore the minimum period of imprisonment I propose to order today.

[45]   It will of course be a matter for the Parole Board to determine your actual release date. But at least on the materials before me, and assuming the position does not deteriorate in the interim, it may well be that, after service of the minimum period of imprisonment, the Parole Board will release you back into the community. In those circumstances, you will still be a relatively young man and able to make a valuable contribution to society.

Sentence

[46]   Mr Te Maru, I therefore impose a sentence of life imprisonment with a minimum period of imprisonment of 10 years.

Fitzgerald

21     Sentencing Act 2002, s 103(2).

22     Section 104.

23     R v Heihei [2017] NZHC 2243; R v Mahuki, above n 4; R v Alexander [2018] NZHC 1584; and

R v Te Poono [2020] NZHC 1188. See also R v Ray, above n 4; and R v Millar, above n 4.