R v Te Wini

[2012] NZHC 1593

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2008-270-000361 [2012] NZHC 1593

THE QUEEN

v

LORI LEA WAIROA TE WINI

Hearing:         6 July 2012

Counsel:         GC Hollister-Jones for the Crown

E Hall for Prisoner

Judgment:      6 July 2012

SENTENCING NOTES OF WOOLFORD J

Solicitors/Counsel:

Ronayne Hollister-Jones Lellman, Barristers & Solicitors, Tauranga. C Stevenson, Barrister, Wellington.

R V TE WINI HC ROT CRI-2008-270-000361 [6 July 2012]

Introduction

[1]      Ms Te Wini is for sentence on a single charge of murder under s 168 of the

Crimes Act 1961 for which the maximum penalty is life imprisonment.

Facts

[2]      As to the facts which Ms Te Wini is to be sentenced, sometime late on the evening of 24 November 2008 or early in the morning of 25  November 2008, Ms Te Wini and her co-offender, Ms Churchward, entered the home of the victim, Mr John Rowe, in Windsor Street, Opotiki.

[3]      Mr Rowe was retired, having taught at Opotiki College for many years prior to his retirement in 1990.  He lived alone in his home, having been widowed shortly before his retirement.  The home at which Ms Te Wini was living at the time of the offending backed onto the victim’s property.

[4]      On the evening in question Ms Churchward came to Ms Te Wini’s home and the two of them agreed to go out and find cannabis.  They first entered a house bus because they thought they would find cannabis there.   When that effort proved fruitless they decided to rob someone instead. They settled on robbing Mr Rowe.

[5]      In order to do so they equipped themselves with a knife, a screwdriver and other items in order to effect entry.  It is not suggested that these implements were taken in order to effect violence.   They climbed over the fence between the two properties and forced their way into the house through a bathroom window.

[6]      Both  Ms Te Wini  and Ms  Churchward entered  the sitting room.   While searching through the sitting room Ms Te Wini inadvertently caused a noise by opening a small container.  Fearing the consequences of discovery the two offenders armed  themselves  with  items  they found  in  the  sitting  room.    Ms  Churchward handed a long, solid piece of wood, which the victim apparently used as a walking stick, to Ms Te Wini but Ms Te Wini handed this back and instead picked up a

thinner piece of wood, more akin to a broom handle. The plan seems to have been to knock the victim out.

[7]      The  offenders  went  into  the  victim’s  bedroom  with  their  weapons  but hesitated.  They returned to the sitting room where they encouraged themselves to proceed with their plan. They then re-entered the victim’s darkened bedroom.

[8]      Ms Churchward struck a number of blows to the victim’s head, chest and arms.    After  that  Ms  Te  Wini  joined  in  and  struck  the  victim  several  times. Ms Te Wini’s weapon was broken during the assault, although it is unclear whether it was due to the force employed or through contact with the weapon wielded by Ms Churchward.

[9]      Exactly how long the attack took or how many blows were struck is not clear but after a short time it seems that the victim, who had tried at one point to raise himself up, fell back onto the pillows and became still.  The offenders then dropped their weapons and left the victim in his bed.

[10]     They then searched the house and found the victim’s wallet and his car keys. They also ransacked the house in a way that they hoped would cause people to believe the events were a burglary gone wrong.   Ms Te Wini and Ms Churchward attempted to start the victim’s car but were unsuccessful.  They ultimately climbed back over the fence to Ms Te Wini’s residence.

[11]     The offenders took some steps to conceal what happened by throwing away items of clothing worn during the events. They also spent some of the money taken.

[12]     The  victim  was  discovered  by  another  neighbour  on  the  morning  of

25 November 2008.   Mr Rowe was found in his bed with a significant amount of blood surrounding him.  He showed no signs of having moved since the attack.

[13]     A medical examination disclosed that the victim had suffered a number of injuries.  Blows to the head and the face had caused severe facial injuries including broken cheek bones, a number of fractures of the skull and a broken nose.  The head

injuries were the most probable cause of death which might have taken a number of hours to eventuate.  There were also injuries to the hands, fingers and arms showing attempts by the victim to defend himself.

Victim Impact Statement

[14]     There have been a number of statements from members of Mr Rowe’s family regarding their loss and the feelings that his death has provoked in them.  Despite the passage of time since his death and the fact that this legal process has ended with Ms Te  Wini  admitting  full  responsibility  for  her  part  in  the  events  leading  to Mr Rowe’s death by pleading guilty, there is still a great and lasting pain for them.  It is important for the Court to acknowledge the pain and the difficulty that this legal process has caused them over a number of years, especially to Mr Rowe’s two children, Mr Patrick Rowe and Ms Wendy Rowe.  There has also been considerable trauma to the residents of Opotiki, including neighbours such as Mr Gibson.   I acknowledge your grief.

Personal circumstances

[15]     As to Ms Te Wini’s personal circumstances, she was just short of 15 years of age at the time of the offending and was living with her mother in Opotiki.   She appears to have moved between the care of a number of family members in her short life  and  had,  consequentially,  a  highly disrupted  upbringing.    Ms Te Wini  also suffered serious physical and sexual abuse whilst growing up allegedly at the hands of persons who should have offered her care and protection.   Two men are to be brought to trial in relation to these incidents but that, of course, cannot undo the damage that has been done.

[16]     Ms Te Wini has also been exposed to a number of illicit substances.  Glue or solvent abuse is mentioned but her use of cannabis seems to have been a far more dominant concern.  Ms Te Wini reports using cannabis from an early age and it is clear that little was done by her caregivers to discourage her use of drugs.

[17]     The concerns that Venning J raised in sentencing Ms Te Wini at the first trial are clearly still relevant.  Ms Te Wini has been failed by many of those people in her life who were responsible for her upbringing and safety.  Needless to say these facts have had a considerable impact upon Ms Te Wini, a matter which is further explored in the psychiatric reports available to the Court.

[18]     While this history cannot excuse Ms Te Wini’s actions, her difficulties and her youth provide some background to her mental and emotional development prior to and at the time of the offending.

[19]     Ms Te Wini has spent the majority of the time since her arrest in late 2008 in custody.  As a young person she was initially held in youth justice facilities.  Given her age she will now serve any sentence in the adult prison population.

Prior Convictions

[20]     Ms Te Wini has no previous convictions.

Pre-Sentence Report

[21]     A probation officer has spoken with Ms Te Wini and prepared a report for the Court.   The report writer found Ms Te Wini pleasant and co-operative and she appears to have no disciplinary issues in the prison environment.

[22]     One finding that is difficult to understand in the context of the report as a whole  is  the  assessment,  on  the  basis  of  a  Corrections’  screening  tool,  of Ms Te Wini’s risk of reoffending as high.  But the report also notes that this may be a function of the offending and her current age.

[23]     The  tone  of  the  interview  with  the  Probation  Officer  demonstrates  that Ms Te Wini has insight into her offending.  One matter that is also mentioned in all of the reports is a sense of remorse and a willingness to speak with and engage in any  restorative  justice  process  with  which  the  victims  might  feel  comfortable.

However, Ms Te Wini realistically acknowledges that they may well not be prepared to and understands why that is so.

[24]     In terms of Ms Te Wini’s rehabilitative prospects, the report writer notes that she is currently studying a number of subjects by correspondence and would like to work in the future, although she is unsure as yet what she would like to do.  She has also formed a strong relationship with a Bible counsellor who visits her in prison.  A letter from that person has been provided to the Court.   Ms Te Wini has not used illicit substances while in custody, reports feeling better now that she no longer takes them and seems to have no desire to do so in the future.

[25]     There are a number of beneficial steps that Ms Te Wini can take within the prison environment in order to improve her prospects on release including drug counselling and sexual abuse counselling.

Psychiatric Reports

[26]     There are two psychiatric reports available to the Court in this case.  The first is from Dr Myers, a consultant psychiatrist specialising in child and adolescent psychiatry.   The second is from Dr Skipworth, the Clinical Director of Auckland Regional Psychiatric Services.

[27]     Dr Myers has had contact with Ms Te Wini throughout much of the period since the offending and records the long-term disturbances in her mental state.   In notes relating to the period 2008 to 2009 Dr Myers records that the traumatic experiences that Ms Te Wini suffered growing up have left her with a significant case of post-traumatic stress disorder evidenced by nightmares, flashbacks and emotional instability.  There are also symptoms of a pre-existing, underlying mood disorder which appears to have manifested itself in major depression throughout the earlier part of her time in custody.

[28]     The notes of a later interview conducted by Dr Myers in late 2011 record that while Ms Te Wini is still taking medication in relation to her mental state, she appears calmer and more focused.

[29]     Dr Myers makes a number of observations about the distinctive function of child or adolescent brains but the general thrust of Dr Myers’ report is to note the effect that childhood trauma, depression and substance abuse would have had on Ms Te  Wini’s  brain  development  and  the  executive  functioning  of  her  mind. Dr Myers  believes  that  these  features  of  Ms  Te  Wini’s  life  would  have  had  a considerable impact on her decision-making, risk perception, appreciation of the consequences of her behaviour and her ability to make decisions when under conditions of strong emotion.

[30]     Dr  Skipworth’s  report  was  prepared  in  order  to  assist  the  Court;1   he interviewed Ms Te Wini in June of this year.

[31]     Much of the same material is covered but there are some distinct points to note.  Dr Skipworth records that Ms Te Wini told him she had an abortion at aged 13 due to sexual abuse.  There is also mention of her mood disturbances prior to the offending extending to incidents of self-harm including suicide attempts.

[32]     Dr Skipworth records that since 2010 there have been some indications of schizophrenia, which may explain her psychotic episodes.   With appropriate medication she now appears to be performing reasonably well.   Dr Skipworth’s conclusions on her mental state record that she behaves and interacts normally.  The longer-term risk of schizophrenia is something that will require careful treatment and Ms Te Wini needs to develop strategies for coping with that.  Further psychological intervention in relation to violence and substance abuse prior to release may also be

beneficial to her.

1 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 38.

Purposes and Principles of Sentencing

Relevant Purposes of Sentencing (s 7 Sentencing Act 2002)

[33]     Turning now to the purposes and principles of sentencing, the following purposes set out in s 7 of the Sentencing Act 2002 are, for the reasons outlined, particularly important in this sentencing:

(a)      promoting in Ms Te Wini a sense of responsibility for, and an acknowledgment of, the harm that has been caused to the family of Mr Rowe and to the community both in Opotiki and at large;

(b)denouncing  the  shocking  behaviour  in  which  Ms  Te  Wini  was involved;

(c)      deterring both Ms Te Wini and any others who might contemplate offending in this way from committing the same or a similar offence;

(d)taking  into  account  what  the  victims  of  Ms  Te Wini’s  offending, Mr Rowe’s family, have said about their loss and the brutal way in which he died; and

(e)      Assisting, in so far as possible, in allowing Ms Te Wini to come to terms with what she has done and prepare herself for a life free of offending upon release.

Relevant Principles of Sentencing (s 8 Sentencing Act 2002)

[34]     The following principles set out in s 8 of the Sentencing Act 2002 are, for the reasons outlined, particularly important in this case:

(a)      taking into account the seriousness of the offending in this particular case, including the role and degree of culpability of Ms Te Wini;

(b)recognising that  murder  is  seen  as  the  most  serious  of peacetime crimes by New Zealand society and attracts its own particular system of sentencing including a presumption of life imprisonment to reflect that;

(c)      considering  the  sentencing  levels  in  other  cases  of  murder  and recognising that a degree of consistency as between Ms Te Wini and other offenders is desirable;

(d)      taking into account the degree of harm done to the victims; and

(e)      recognising  that  aspects  of  Ms  Te  Wini’s  family  and  personal background may have had an influence on her development and her moral culpability, and may influence her going forward.

Submissions

Crown Submissions

[35]     I  have  received  comprehensive  submissions  from  both  the  Crown  and counsel for Ms Te Wini.  Mr Hollister-Jones, for the Crown, submitted that this is a case in which a sentence of less than life imprisonment is not appropriate given the authorities2 and the fact that while Ms Te Wini has had a troubled life, the circumstances of the offending do not suggest that this is a particularly exceptional case in which that penalty would be unsuited.

[36]     The Crown accepts, however, that there are factors that would make a 17 year minimum period of imprisonment manifestly unjust.   Mr Hollister-Jones submits, looking to Ms Te Wini’s co-offender, that an otherwise appropriate minimum period of 13 years might be reduced to 12 years to take into account Ms Te Wini’s guilty

plea and remorse.

2 R v Rapira [2003] 3 NZLR 794 (CA); Churchaward v R [2011] NZCA 531,(2011) 25 CRNZ 446;

and R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775.

Prisoner’s Submissions

[37]     Ms Hall, counsel for Ms Te Wini, opened by suggesting that the imposition of a sentence of life imprisonment would be manifestly unjust in this case.   Ms Hall made this submission on a number of grounds.  The first was that Ms Te Wini had pleaded guilty to murder under s 168 rather than any of the bases in s 167.  It was submitted in written submissions that contradictions exist in convicting someone for

murder under s 168 without the presence of any mens rea related to killing,3  this

being said to reduce her moral though not her legal culpability, something that ought to be recognised in sentencing.   The second is what is said to be her distinct role from that of her co-offender.   Then there is the considerable mental trauma and victimhood  to  which  Ms Te Wini  has  been  subject  which  is  said  to  affect  her responsibility.  Lastly, there is her youth which is said to have had an impact on both her decision-making capacity and her judgment and to provide compelling potential

for rehabilitation.4

[38]     In order to fully recognise all these factors and Ms Te Wini’s guilty plea, it is submitted that to not depart from the statutory presumption of life imprisonment (and a minimum non-parole period of 10 years) would result in manifest injustice.5

Ms Hall also placed considerable emphasis on Ms Te Wini’s remorse and prospects

for rehabilitation.

Sentencing approach

Sentencing for murder

[39]     I turn next to the proper sentencing approach in this case.   Sentencing an offender for murder has its own specific regime under the Sentencing Act 2002. Within that regime there is an assumption that the seriousness of the crime means

that a life sentence is nearly always the appropriate penalty.6   The task then is usually

3 See: R v Vaillancourt [1987] 2 SCR 636 (SCC); and R v Martineau [1990] 2 SCR 633.

4 See: Miller v Alabama 567 US --- (2012) (USSC).
5 R v McNaughton [2012] NZHC 815 at [69].

6 Sentencing Act 2002, s 102.

to set the appropriate minimum period of imprisonment.7    That task may, in some cases, be restricted and a high minimum period mandated where factors that Parliament considers particularly serious are present.8

Life imprisonment

[40]     The first matter to consider is whether the Court should impose a sentence of life imprisonment.  Under s 102 of the Act the Court must do so unless it is satisfied that to impose such a sentence (with the consequence that the offender will spend at least 10 years in prison) is manifestly unjust.

[41]     Decided in September 2002, R v Rawiri9  was one of the first sentencing decisions to apply the provisions of the current Act to sentencing for murder.  In it, Fisher J identified four principles bearing upon the application of s 102:10

Section 102 of the Sentencing Act provides that having been convicted of murder you must both be sentenced to life imprisonment unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust. Counsel have helpfully referred me to a number  of  sources  in  interpreting  that  provision. They include  the  Law Commission report, the remarks of the Minister for Justice when introducing the Bill and at its second reading in the House, the commentary by the Justice and Electoral Committee of 14 August 2001 and the two cases of R v Law (unreported, HC Hamilton, 29 August 2002, T 021094) and R v Mikaele (unreported, HC Auckland, 30 August 2002, T 013638). From the Act and those sources I have drawn four principles affecting the exercise of the discretion under s 102.

[27] The first is that it is for the offender to show why it would be manifestly unjust to impose life imprisonment.

[28] The second is that the test must be satisfied with respect to the circumstances of both the offence and the offender. There may be cases where  the  circumstances of  the  offender  are  strongly  mitigating but  the circumstances of the offence still preclude departure from the presumption.

[29] The third principle is that in applying the manifestly unjust test both aggravating and mitigating circumstances must be taken into account. So a case with very powerful mitigating circumstances may still fail to escape the presumption in the light of aggravating factors.

7 Sentencing Act 2002, s 103.

8 Sentencing Act 2002, s 104.
9 HC Auckland T014047, 16 September 2002.

10 At [26]-[30].

[30] The fourth principle is that the threshold for departure from life imprisonment is the relatively high one. That is inherent in the words "manifestly unjust". The case for departing from life imprisonment must be clear and obvious. Potentially qualifying examples include failed suicide pacts, battered defendants, and mercy killings, but there will never be any closed set of categories. The ultimate test will always be whether life imprisonment would be manifestly unjust, no more and no less.

[42]     There were appeals of both sentence and conviction in that case which were ultimately heard sub nomine R v Rapira.11  Those appeals were all dismissed.

[43]     The  meaning  of  manifest  injustice  in  this  case  has  been  the  subject  of comment on a number of occasions.   There are a number of important Court of Appeal authorities: R v Rapira,12 R v O’Brien,13 R v Williams,14 R v Smail,15 and R v Wihongi.16     Sentences other than life imprisonment appear to have been imposed

under s 102 in only four cases.17

[44]     The most recent of the Court of Appeal decisions and one in which a sentence other than life imprisonment was upheld is the case which has been referred to by counsel, R v Wihongi in which the Court observed:

[70] The approach to be taken for the purpose of determining whether it would be “manifestly unjust” to impose a sentence of life imprisonment for the purposes of s 102 was articulated by this Court in R v Rapira in the following terms:

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.

[71] The legislative intention is reflected in the speech of the responsible Minister, Hon Phil Goff, at the first reading of the Sentencing and Parole Reform Bill. He said:

11 [2003] 3 NZLR 794.

12 [2003] 3 NZLR 794.
13 (2003) 20 CRNZ 572.

14 [2005] 2 NZLR 506.
15 [2007] 1 NZLR 411.
16 [2011] NZCA 592, [2012] 1 NZLR 775.

17 R v Law (2002) 19 CRNZ 500 (HC); R v Reid HC Auckland CRI-2008-090-2203, 4 February 2011;

R v Wihongi; and R v McNuaghton [2012] NZHC 815.

A more flexible regime is applied to murder, requiring the Court to take into account mitigating and aggravating factors. The bill retains 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.

[72] The report of the Justice and Electoral Committee on the Bill confirmed the position taken by the Minister. In its report, it said:

A very small number [of those convicted of murder] will receive a sentence less than life imprisonment. These may include “mercy killings”, failed suicide pacts and situations in which the accused is termed a “battered defendant”. There is a very strong presumption in favour of life imprisonment for murder in the Bill.

[45]     The recent decision of Miller J in R v McNaughton is also worth mentioning. The Judge in that case considered that the responsibility of one of the prisoners, limited as it was to being a minor party to the murder, his remorse and engagement through restorative justice, and the minimum term of imprisonment of 10 years imposed on the principal meant that to impose a sentence of life imprisonment with a minimum period of 10 years would be manifestly unjust due to the disproportionate

severity of the sentence.18

Minimum period of imprisonment ( s 104)

[46]     Section  104  of the Act  provides  that  in  cases  where certain  aggravating features are present in the crime then the Court must consider imposing a minimum period of imprisonment of 17 years or more unless the Court is satisfied that to do that would be manifestly unjust.  That standard is a different one to the one found in s 102 and allows the Court to take into account a fuller set of circumstances in deciding whether 17 years is too long a minimum period of imprisonment.19

[47]     Section 104 makes no distinction between s 167 and s 168 murders.   In

Kee v R20 the Court of Appeal stated:

Section  104(d)  does  not differentiate  between  the  various  grounds  upon which murder might be established.  It applies equally to all of the possible grounds under ss 167 and 168 of the Crimes Act.  It is no answer, therefore,

18 At [69].

19 R v Williams [2005] 2 NZLR 506 (CA).

20 Kee v R [2011] NZCA 229 at [21].

to submit that the killing was reckless rather than intentional or that only grievous bodily harm was intended and that the offending only amounted to murder because it was committed in the course of [an]other serious offence.

[48]     There are a number of cases considering whether an offender’s youth as well as their guilty plea can singly, or in combination, result in a manifest injustice in imposing a minimum period of 17 years21 although it will not always be so.22

Minimum period of imprisonment

[49]     Where  the  Court  considers  a  life  sentence  is  appropriate,  then  it  must consider what minimum term of imprisonment to impose given all the circumstances of the offending and the offender. A minimum period of imprisonment of 10 years is the statutory minimum and the Court will need to consider the seriousness of the facts of the murder and the character in deciding whether to impose a longer term

than this and, if so, the precise length of that term.23

Application – presumption of life imprisonment

[50]     Given that the consideration of whether the presumption in favour of life imprisonment has been rebutted involves looking at all the circumstances of the offending and the offender in light of the matters mentioned in ss 7-9 of the Act24 it seems most sensible to consider what aggravating and mitigating features are present in this case.  These factors will also influence the setting of a minimum non-parole period or a finite sentence should a sentence of less than life imprisonment be imposed.

Aggravating features

[51]     I consider that the following are aggravating features of the offending:

21 R v Slade [2005] 2 NZLR 526 (CA); and R v Rewha-Te Wara HC Hamilton CRI-2010-019-005681,

30 September 2011.

22 R v Green CA461/04, 2 June 2005.

23 R v Howse [2003] 3 NZLR 767 (CA) at [57] onwards.

24 R v Rapira at [70].

(a)      Entry into a home: the attack took place in the course of an unlawful intrusion into Mr Rowe’s house at night which violated his privacy and the security of that place and ultimately lead to his death therein.

(b)Use of a weapon: it seems clear that the initial implements that the offenders were carrying when they left the property where Ms Te Wini was staying were to be used for the entry and were not brought to the scene for the purpose of causing harm.  Nonetheless there was the use of improvised weapons to repeatedly beat the victim.  Those weapons had the potential to do much more harm than hands and fists alone.

(c)      The seriousness of the violence and its brutality: the attack leading to Mr Rowe’s death was not a limited or momentary one.  While it does not appear to have gone on for more than a few minutes, in the time that it took, the offenders were able to inflict a considerable number of blows to the victim causing serious trauma.  This was not the case of an unfortunate death caused by a single quick blow.

(d)Attacking the victim’s head: a large number of the blows involved in the attack appear to have been delivered to the victim’s head causing the injuries that the pathologist indentified.

(e)      The injuries caused: the injuries caused were grave and would have left the victim, if conscious, in a great deal of pain in the hours before his death.  These injuries would also have left Mr Rowe’s body in a badly marked state causing greater upset to his family.

(f)      The vulnerability of the victim: the victim in this case was vulnerable because of his age, his physical frailty and the isolation of his home at night.   In addition, he appears to have been taken largely unawares while lying down in his bed in the dark and to have been attacked by two much younger offenders from whom he had little chance of defending himself, particularly once the attack started.

(g)Impact on victims: the messages from the members of the Mr Rowe’s family are one and probably the most important of the impacts this death has caused.   They are unlikely to be the only ones however. Mr Rowe’s  death  would  have  been  a  great  shock  to  his  other neighbours, his former colleagues and students and to the sense of security that the wider community felt.

Mitigating features of the offending

[52]     As to any mitigating features of the offending, the issue as to Ms Te Wini’s reduced culpability as a result of her guilty plea to the charge under s 168 of the Crimes Act  is  a  difficult  one.    Criminal  responsibility  under  s  168  appears  at common law to have been called “felony murder” and has a complicated and not untroubled history.25     The Canadian Supreme Court cases mentioned in the submissions by counsel for Ms Te Wini, concerned the validity of a provision of the Canadian Criminal Code which is similar but not identical to criminal responsibility for murder under s 168.  In those cases the Canadian Supreme Court held that parts of that provision, were incompatible with the Charter of Rights and Freedoms,26  in

particular with the fundamental rights to justice and of criminal liability.27   This was

because the section of the Criminal Code imposed an objective standard of forseeability of harm contrary to what the Supreme Court saw as:28

“the fundamental principle of justice that a conviction for murder cannot rest on anything less than proof beyond reasonable doubt of subjective foresight of death.”

[53]     While the context of that case and this stand completely apart; the Court in this case has none of the powers given to the Supreme Court of Canada by the Charter and this case concerns culpability at sentencing rather than guilt.  It should also be noted that the wording of the Canadian provision in issue and our own are different in that s 168 requires “grievous bodily injury” rather than mere “bodily

injury”  bringing  our  provision  closer  to  murder  under  s  167(1)(b).     While

25 R v Vaillancourt at [15]-[23].

26 Constitution Act 1982 (Canada), Part 1.
27 Constitution Act 1982 (Canada), ss 7 & 11(d).

28 R v Martineau at page 644.

academically challenging, there is little additional weight, in my opinion, in this point as the Court in assessing the circumstances of the case will already consider the differences in culpability where offenders are convicted for different levels of involvement and perhaps with different levels of foresight as to the consequences of the offending.

[54]     Also of note is that the Court of Appeal in R v Rapira did not appear to regard the fact that the offenders were convicted under s 168 rather than s 167 as a primary or particularly notable mitigating factor for the purposes of sentencing.

[55]     While not a mitigating feature of the offending per se, Ms Te Wini’s reduced role in comparison to her co-offender was a matter that was put in issue.  It seems reasonably  clear  from  the  material  before  the  Court  that,  at  the  very  least, Ms Te Wini wielded a lighter weapon and dealt fewer blows to the victim.

[56]     Ultimately, the more limited role of Ms Te Wini can only be of limited importance given her participation in the all stages of the offending and her acting substantially in concert with Ms Churchward.  The two of them agreed on a course of criminal conduct and were each sources of encouragement for the other.   Little recognition can be given on the basis that she played a somewhat different role in the offending.  Only in a situation where an offender’s behaviour stands quite apart from that of the principal, such as in R v McNaughton should prime recognition be given to the difference.

Aggravating features of the offender

[57]     There are no aggravating features in relation to Ms Te Wini personally.

Mitigating features of the offender

[58]     There are, however, a number of relevant mitigating factors in Ms Te Wini’s

case.

(a)      The first is age: the Courts have noted on a number of occasions that the age of an offender is no bar in itself to the imposition of a sentence of life imprisonment (with a minimum non-parole period of less than

17 years)29  or to the imposition of a 17 year period under s 104.30

Nonetheless  it  is  recognised  that  age  can  be  important  to  the sentencing of an offender.   The Court of Appeal’s judgment in Churchward v R comprehensively lists the reasons that a discount for youth might be allowed in cases and include considerations that will influence the recognition of a discount in any particular case.   The

five reasons that the Court identified were:31

(i)Evidence of neurological differences between  young people and adults that may make young people more impressionable and impulsive;

(ii)The negative effects of long terms of confinement on young people including a tendency of longer sentences to bear more heavily upon them;

(iii)A   greater   ability   to   be   successfully   rehabilitated   and reintegrated into the community;

(iv)The fact that youthful offending is often a short lived compunction with offender “growing out” of a tendency to offend; and

(v)      The  fact  that  criminal  convictions  at  a  younger  stage  in  a

person’s life may have a disproportionate and telling effect on

their future prospects.

29 R v O’Brien; and Churchward v R.

30 R v Green CA461/04, 2 June 2005; and R v Slade [2005] 2 NZLR 526 (CA).

31 Churchward v R at [76] – [92].

The important impact of some of these reasons is widely recognised as   counsel   for   Ms   Te   Wini   has   pointed   out   in   his   written submissions.32

(b)Lack of previous convictions: while Ms Te Wini has no convictions she has admitted committing a number of small number of acts prior to this offending.    However the magnitude of this crime is considerably greater than any of those and in all respects she is to be regarded as a first-offender for the purposes of sentencing.

(c)      Remorse: Ms Te Wini shows what is accepted to be genuine remorse for what she has done and the harm she has caused to Mr Rowe’s family.  Her willingness to engage in some kind of restorative justice, while understandably not possible, is a positive sign as well.

(d)Rehabilitation: the reports received suggest that Ms Te Wini has a good insight into her emotional and medical needs in the future and is motivated to come up with ways to cope with them.  She also seems recently to  have had  a  positive record  in  the prison  environment. Importantly she has also set herself learning goals and has motivation to change and hopes for the future.  All of these things suggest that Ms Te Wini has taken substantial steps to rehabilitate herself and that these steps will yield positive results if continued with.

(e)      Personal  background:  Some  recognition  has  to  be  given  to  the difficulty of the circumstances in which Ms Te Wini was raised but this is perhaps best considered in terms of the effect it has had on her psychological development.

(f)      Psychological impairment: It is clear that Ms Te Wini has a range of pre-existing psychiatric difficulties some of which were operative at

the time of her offending.  In addition, the trauma of childhood abuse

32 Miller v Alabama (USSC).

and the abuse of substances had strong affects on Ms Te Wini’s ability

to make decisions and her appreciation of risks and consequences.

(g)Guilty  plea:  a  guilty  plea  is  normally  the  last  consideration  in sentencing   but   in   the   circumstances   of   this   case   it   assumes importance, first, in determining whether to impose a sentence of life imprisonment.    A guilty plea is an important expression of responsibility as well as a benefit to the community.33    In this case it has come after an initial trial in which Ms Te Wini was convicted of murder and a subsequent appeal.34    It is clear, however, that she has acknowledged her role in the events of that evening from the start and has refrained from pleading guilty until after her appeal succeeded on the basis that while guilty of attacking Mr Rowe she did not have the requisite murderous intent.   The guilty plea, therefore, still has considerable weight.

[59]     With all those circumstances in mind it is necessary to consider whether a sentence of life imprisonment should be imposed on Ms Te Wini for this murder.

Life imprisonment

[60]     Counsel for Ms Te Wini has argued that something less than a sentence of life imprisonment may be appropriate in her case. The Crown strongly opposes this.

[61]     In R v Rapira a number of offenders had taken part in the premeditated robbery of a pizza delivery man.   In the High Court those who were convicted of murder were sentenced to life imprisonment with minimum terms of imprisonment of 10 years, the Judge having concluded that manifest injustice had not been shown. One of the offenders in that case, Ms Rawiri had strong, and somewhat analogous, mitigating circumstances:

[110] Whatarangi Rawiri was sentenced to life imprisonment on the charge of murder but without imposition of a minimum non-parole period greater

33 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

34 The full facts timeline is considered below.

than the statutory ten years. The Judge considered that Whatarangi’s case was the saddest. She had expressed real remorse, as early as her interviews with the police immediately after her arrest, and had made what reparation she and her family could. She had been the victim of offending some months before which had exacerbated her own behavioural problems and drug and alcohol abuse and made her emotionally dependent on Phillip Kaukasi. Whatarangi Rawiri’s statement to the police had demonstrated that she knew that Michael Choy would be knocked unconscious for the purpose of the aggravated robbery and that he would be seriously hurt. She had continued with the plan despite that insight. On the other hand, the Judge accepted that Whatarangi Rawiri had voiced concerns about the danger to the driver in the plan,  and  would  not  have  participated  but  for  the  influence  of  Phillip Kaukasi. The Judge expressed regret that s 102 left him with no option but to impose a sentence of life imprisonment.

[62]     However, on appeal the Court felt itself similarly bound to impose a sentence of life imprisonment, noting:35

But  for  the  age  of  all  offenders,  imposition  of  minimum  non-parole sentences would have been inevitable given the aggravating features of the offending, measured against the criteria in s 9 of the Sentencing Act. None of the purposes and principles of sentencing identified in ss 7 and 8 of the Sentencing Act 2002 when applied to the case suggested that the sentence of life  imprisonment  was  manifestly  unjust.  Youth  is  not,  regrettably,  an unusual feature of offences of serious violence. It can have little weight when balanced against the public interest in denunciation and ensuring responsibility for offending... The additional factors in favour of Whatarangi Rawiri (her remorse, the reparation, her own experience as a victim) did not justify  departure  from  the  presumption. There  was  no  link  between  the earlier abuse suffered by Rawiri and the crime. Rawiri was a full participant whose greater insight does not overcome the grave circumstances of the offending to make the imposition of a sentence of life imprisonment for murder manifestly unjust.

[63]     The other notable case in this area is R v O’Brien in which the appellant, who was 14 years 9 months old at the time of the offending, murdered a man in order to take his car.  The appellant who suffered from a level of intellectual disability and had problems of substance abuse was found guilty at trial.  On appeal the Court of Appeal remarked:36

In our view, low intellectual capacity unrelated to the mental elements of criminal responsibility, is seldom likely to justify a departure from the statutory presumption. It is to be remembered that the fact of conviction for murder will have excluded mitigating features such as provocation, and disease of the mind amounting in law to insanity. There may be cases where the circumstances of a murder may not be so warranting denunciation and

35 R v Rapira at [120]

36 R v O’Brien at [36].

the mental or intellectual impairment of the offender may be so mitigating of moral culpability that, absent issues of future risk to public safety, it would be manifestly unjust to impose a sentence of life imprisonment. This is not such a case, particularly when the circumstances of the offence, which must be considered along with the circumstances of the offender, demonstrate premeditated brutality... The only relevance of youth and intellectual state, in this case, is that they may have caused a reduced sense of responsibility for planning and carrying out a brutally murderous attack in order to steal a car for a joyride.

[64]     Churchward v R is of special importance as well in that the Court of Appeal considered that a sentence of less than life imprisonment was reasonably an available outcome for Ms Te Wini’s cousin and co-offender.  The Court should not ignore the difference  between  the  two  offenders  but  it  is  also  worth  acknowledging  that Ms Churchward’s personal history is not without trauma and contains some of the

same features as Ms Te Wini’s.37

[65]     Some of the matters in the recent case of R v Wihongi are also worth pointing out.  In that case it was submitted that the offender’s severe cognitive impairment, her status as a battered defendant and her disturbed psychological state due to post- traumatic stress from a number of tremendously difficult events were sufficient to make life imprisonment a manifest injustice.  Ms Wihongi was a grown adult who had been found guilty at trial.  However in that case there was a clear link between the offender’s status as a battered partner and the object of her offending; there may also have been a weaker link between her mental condition and the offending due to

her repeated victimisation and the apparent sexual context of the offending.38    The

Court’s conclusion on appeal was:

[94] Overall, we see this as a case of a battered defendant who has reacted in an extreme way to her, abuser in circumstances where both the history of abuse and the offenders cognitive deficits have played a significant role in that extreme reaction arising. We see this as a case falling within the class of cases that Parliament contemplated would justify the displacement of the presumption. While we have some concerns about the risks which may arise in the future, we do not see those as sufficiently strong to deflect us from displacing the presumption in the circumstances of the case.

[66]     This case is a particularly sad one for all involved.  Ms Te Wini has suffered a great deal as a child and now demonstrates some hope for the future.  However, it is

37 Churchward v R at [31]-[38].

38 R v Wihongi at [87]-[88].

hard to get away from those matters addressed in the cases  I have cited.   The offending is of a similar level of seriousness as Rapira and O’Brien and the Court of Appeal has made it clear that, in such circumstances, exceptional matters both in the circumstances of the offending and the offender will be necessary to displace the presumption.  There are also similarities to R v Wihongi in respect of the offender’s traumatic history of victimisation.  But in that case there was a tangible link between the offender’s personal difficulties and the result of the offending.   No such close link can be shown in this case and the Court of Appeal has made it clear that lesser connections or impairments of function which do not directly relate will be unlikely to affect the presumption.   The offender’s age and remorse can only have limited

effect as well.39  The sentence must be one of life imprisonment.

Application – Minimum period of imprisonment

Minimum period of imprisonment (s 104)

[67]     Having determined that the sentence must be one of life imprisonment, I turn now to  consider  whether a minimum  period  of imprisonment  is  warranted.    In Ms Te Wini’s case several of the criteria in s 104 are engaged.40   However the Crown accepts and it is clear on the facts of the case that there are a compelling set of mitigating factors that quickly lead the Court to the conclusion that to follow the dictates of that section would be a manifest injustice.41

Minimum period of imprisonment

[68]     Given the features of the offending addressed above the decision as to the minimum period to be imposed is a relatively brief one.  The submissions of counsel as to the relative starting point of the sentence seem on point.   Given the circumstances of the murder, an initial minimum period of imprisonment of 12 – 13

years seems appropriate solely on the facts of the offending.

39 R v Rapira at [122].

40 Sentencing Act 2002, s 104(1)(c),(d),(e) & (g).

41 Churchward v R at [100]-[103].

[69]     However due to the significant mitigating factors identified above, the Court should be prepared to make reductions from this point.   Given the extensive discussion of those factors already, I will only lightly touch on these here.  A little more,  however,  needs  to  be  said  about  the  guilty plea.    The  events  leading  to Ms Te Wini’s guilty plea can be briefly summed up:

(a)       The offending occurred in November 2008; (b)           The first trial occurred in November 2009;

(c)       Ms  Te  Wini  was  sentenced  to  imprisonment  by  Venning  J  on

18 December 2009;

(d)      The Court of Appeal heard Ms Te Wini’s appeal against conviction in

June 2011 and allowed it.  It issued its decision on 25 August 2011; (e)         Ms Te Wini was remanded in custody preceding the retrial;

(f)       That was originally set for February of this year;

(g)      That had to be vacated due to counsel’s other commitments and a

May 21 date was set; and

(h)Ms  Te  Wini  pleaded  guilty  on  17  May  2012  when  an  amended indictment altering the basis of the charge from s 167 to 168 was filed.

[70]     Given what has been said about Ms Te Wini’s acceptance of responsibility and the fact that she pleaded guilty following the amendment, a significant degree of recognition should still be given to her guilty plea.

[71]     When all these matters are considered, starting from somewhere in the range of 12 to 13 years, the mitigating factors in this case serve to reduce the minimum period of imprisonment to that mandated by law, 10 years imprisonment.  After that

time Ms Te Wini will be eligible for parole although she will be subject to the life sentence for the rest of her life.

Result

[72]     Ms Te Wini, on the charge of murder of John Rowe to which you have pleaded guilty, you are sentenced to life imprisonment with the statutory minimum non-parole period of 10 years.  In other words, you will be eligible for parole after

10 years.  If you are released by the Parole Board, you will, however, continue to be subject to the sentence of life imprisonment and you can be recalled to continue to

serve that sentence if you reoffend in any way while in the community.

Woolford J