R v Tihema
[2020] NZHC 2135
•21 August 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2017-009-002687
CRI-2018-209-000234 [2020] NZHC 2135
THE QUEEN v
DEBRA JEAN TIHEMA CYLE ROBERT JETSON MYLESHA TIHEMA
Hearing: 21 August 2020 Appearances:
D L Elsmore for Crown
N R and M E Rout for Defendant Debra Tihema
B Ayrey, K Gray and K Bucher for Defendant Cyle Jetson M I Sewell, K J Basire and SMH McManus for Defendant Mylesha Tihema
Judgment:
21 August 2020
SENTENCING NOTES OF DUNNINGHAM J
[1] Debra Tihema, Cyle Jetson and Mylesha Tihema, you appear today for sentence for the murder of Pierclaudio Raviola. You were all convicted of murder following a jury trial in February and March 2020. Mr Jetson you are also here for sentence on a burglary charge having pleaded guilty to prior to trial.
[2] I am sorry that there has been a long gap between the trial and the sentencing. As you will all understand, that has been caused by the COVID-19 restrictions and the difficulty in getting the reports that I needed for the sentencing.
R v TIHEMA [2020] NZHC 2135 [21 August 2020]
[3] I want to start by telling you how I am going to proceed today. First, I am going to outline the facts of the offending as I have found them after hearing the evidence at trial.
[4] Second, I am going to tell you about what the law requires me to take into account when I sentence you for murder.
[5] Third, I am going to discuss your individual responsibility in the offending, and your personal circumstances, and then I will determine the appropriate sentence and minimum period of imprisonment. When I do that, I will deal with you in the order we have been going in all the time, first, Debra, then Cyle, and then Mylesha.
The offending
[6] The victim, Mr Raviola, first came into contact with the Tihema family when he was staying at the motel where you, Ms Tihema, and your daughter Mylesha were temporarily housed. You struck up a relationship with Mr Raviola which was prompted, on his side, by a desire for adult company and physical affection. It is clear these feelings were not reciprocated by you. However, you quickly came to view Mr Raviola as a source of benefits, such as money and food, and even a cell-phone. You took advantage of his loneliness and good nature and you offered him physical affection in return for those benefits.
[7] You said to others in your text messages that you did not find him attractive. You also said to them that you were “jst using [him] 4 al I cn get”, and “Im goin to eventualy bleed him dry”. In February of that year, when pressure was put on you by gang-affiliated family member to pay a debt, you hatched a plan to take Mr Raviola’s Toyota Vitz car from him.
[8] You persuaded Mr Raviola to lend his car to you for a short term purpose and he was expecting it back later that day. You then repeatedly lied to him about why you could not return the car. In the meantime, you organised for the car to be reregistered in Cyle Jetson’s name and to be sold. Mr Raviola then went to the police and reported the car stolen. When you learnt that he had done this, you begged Mr Raviola to drop the charges, and you lied to him saying you loved him, were loyal to him, and wanted
his forgiveness. The car was returned but you had not given up on your aim of getting the car.
[9] A month later when pressure came on you again to pay the debt, you sent texts to your relative, Shannon Tauariki, saying “I’ll get that car today cuz str8”, and “That my mission cuz get tha ka bk lol”.
[10] As soon as you had promised Shannon Tauariki that you would get the car, you began a series of texts to Mr Raviola with the intention of luring him to your home. You said “can we restart again i do want to c you so plz txt me bk”. You asked him if he would like to see you that night and you made plans for him to come around to your house at about 8 pm saying you would be home at 7.30 pm but that you wanted to “freshen up” for him. You then engaged in texts which gave Mr Raviola the impression the relationship was back on.
[11] All of this was part of a plan to make a more forceful attempt to gain the car in order to stop Mr Raviola from going to the police as he had done before. This is reflected in the email you sent to Shannon Tauariki on the day of the assault in which you said the plan was to involve a “kidnap, gank and taking”. In other words, you were to take the car by using stand-over tactics and force.
[12] Your plan involved your nephew Moses Hurrell, who has already been sentenced, your daughter Mylesha and her, then, boyfriend, Cyle Jetson. You asked them all to be there that evening to assist you. You discussed what was to happen. Mr Hurrell’s role was to get the car, Mylesha’s role was to back them up in taking the car keys, and Mr Jetson was clearly part of the plan as well.
[13] When Mr Raviola came to your house on the evening of Thursday, 23 March 2017 you were in your dressing gown. You had an initial discussion with him in the lounge, and then you went with him to your bedroom. Once in the bedroom, you commenced the assault and then Mr Hurrell, Mr Jetson and finally, your daughter, Mylesha, all came into the bedroom and played a part in that assault. Mr Hurrell punched the victim and kicked Mr Raviola who tried to fight back. He also tried to grab Mr Raviola’s car keys from him. Mr Jetson you then entered the room and
pushed the victim over causing him to fall into the wardrobe and on to the ground. You proceeded to assault Mr Raviola to ensure he was knocked out.
[14] During the assault, Ms Tihema, you grabbed a shotgun stock from the bedroom wardrobe and struck Mr Raviola a number of times on the head. Mr Hurrell, you, Mr Jetson and finally you, Miss Tihema, were in the bedroom at the time when the shotgun stock was being used to assault Mr Raviola, whether you used it or were simply aiding and abetting its use by someone else. I accept that Mylesha, you were involved in the last stage of the assault and hit Mr Raviola with the shotgun stock after the others had left the room. You then came out with Mr Raviola’s car keys. It is clear from the forensic evidence that most of the blows were administered while Mr Raviola was lying on the floor unable to respond.
[15] You were then all involved in carrying the victim from the house and placing him into the rear of the Toyota Vitz car. Before he was placed in the car, his hands were taped together. You, Mr Jetson, went with Mr Hurrell to Sumner where the two of you dumped Mr Raviola in a carpark. Ms Tihema, you and your daughter Mylesha remained at home and started cleaning up the scene.
[16] After dumping the victim, Mr Jetson, you returned to the Tihema home with Mr Hurrell. You then drove to the victim’s address with Miss Tihema and Mr Hurrell and using the victim’s keys, you entered his home address and proceeded to take items of value, including jewellery and electronic devices.
[17] Mr Raviola was taken to hospital in a critical condition. He remained in a coma with significant head injuries which included several fractures to his skull and a swollen brain. He underwent several surgical procedures but remained in a coma until he died on 26 March 2017.
[18] The post-mortem identified there were at least six blows to the head, but likely many more, which were consistent with him being hit on the head with a weapon such as the shotgun stock. His death was caused by the combination of the blows to the head.
Victim impact statements
[19] I have read the victim impact statements from Mr Raviola’s former partner, and two of her children. They are clearly private people and they have not enjoyed the spotlight that Mr Raviola’s murder has put on them. However, his death has had a significant impact on them. Ms Hore took a year off work because of the stress it had caused and the need to deal with people.
[20] Reading these victim impact statements also gave me more of an insight into the man Mr Raviola was. One of Ms Hore’s sons says “Pier was always interested in what I was up to, what I was thinking. He was just a warm, inviting kind of guy. Pier was actually one of the nicest guys I ever met”. He really misses the conversations and phone calls with Pier and knowing that he was there if he needed him.
[21] That description of Mr Raviola is consistent with the picture I got of him through the numerous texts he sent during the relationship. I consider that his fundamental decency and good nature was exploited by all of you in committing this crime.
The Sentencing Act
[22] I now turn to the law regarding sentencing for murder. Under the Sentencing Act I must impose a life sentence unless that sentence would be manifestly unjust.1 It has not been suggested, nor do I consider, that a life sentence would be manifestly unjust for you Debra Tihema. However, Mr Jetson and Miss Tihema your lawyers submit that it would be manifestly unjust to impose life sentences on you and I will deal with those submissions in due course.
[23] The Sentencing Act also says that at least 10 years minimum period of imprisonment must be imposed on someone convicted of murder.2 That does not mean, of course, that a person will be released at 10 years, but simply that the
1 Section 102.
2 Section 103(2).
Parole Board will consider release if they are satisfied that the offender no longer poses an undue risk to the community.
Section 104
[24] However, if the circumstances of the murder fall within any of the circumstances in s 104 of the Sentencing Act, then I must impose a minimum period of imprisonment of 17 years, unless it would be manifestly unjust to do so.
[25] Some of the circumstances which require me to impose a minimum non-parole period of 17 years are:
(a)where the murder was committed in the course of another serious offence;3
(b)where the murder was committed with a high level of brutality, cruelty, depravity or callousness;4 and
(c)where the deceased was particularly vulnerable because of his age, health, or because of any other factor.5
[26] The Crown, you heard, submits that all three circumstances apply here. That means a 17 year minimum period of imprisonment will apply unless I am satisfied that it would be manifestly unjust. The Crown accepts that that may be the case for Mr Jetson and you, Miss Tihema.
[27] In sentencing you on the charges, there are also certain purposes and principles of sentencing that I have to have regard to. In this case, the most important purpose is to hold you accountable for the harm you have done, but also to denounce your conduct, to deter others from doing this, and I also need to promote in all of you, a sense of responsibility and acknowledgement for your actions. I have also had regard,
3 Section 104(1)(d).
4 Section 104(1)(e).
5 Section 104(1)(g).
to the extent that I can, the purpose of assisting your rehabilitation and reintegration in society.
Aggravating features of the offending
[28] In sentencing you today, I have to take into account the aggravating and mitigating features of the offending.6 That is, the things that make it worse or not so bad. These will guide me in setting the minimum period of imprisonment and determining whether it would be manifestly unjust to impose a sentence under s 104.
[29] First, the murder involved the actual use of violence and weapons. Mr Raviola was repeatedly punched and beaten on the head with the shotgun stock which caused catastrophic head injuries. Indeed, Dr Sage gave evidence that, ironically, the skull damage was so bad it accommodated brain swelling and allowed Mr Raviola to survive for longer than he would have otherwise.
[30] Now, as in all cases of murder, the loss, damage and harm resulting from the offending is profound. The victim impact statements make it clear that Mr Raviola’s death was a traumatic and stressful event for his former partner and her children.
[31] Next, I consider Mr Raviola was vulnerable. He was a 65 year old man who had recently separated and had undergone treatment for cancer. He came into your home, Ms Tihema, on that night, at your invitation, and as your guest. Then he was confronted by you and, the three other defendants, and he had no chance of successfully defending himself.
[32] I also consider there was a high level of premeditation, particularly on your part Ms Tihema. This was the second attempt you had made to get Mr Raviola’s car to meet that debt. As you know, the first time was a month beforehand, but eventually the car was returned. This time you had a plan which involved deceiving him into coming to your place on the pretext of a romantic invitation, when in fact you had ensured there would be four of you there to use what force was necessary to rob him of the car.
6 Under s 9 Sentencing Act.
[33] The fact that this was a group attack and an attack on his head are also aggravating features.
[34] I will address the issue of whether there are any mitigating features of the offending when that is raised in any individual case.
Section 104
[35] I now have to decide, does s 104 apply? This is important because it will also affect whether it could ever be considered a case where a life sentence should not be imposed because as, all the lawyers accept, it is only in exceptional cases that this Court would not impose a life sentence.7
[36] One factor is whether the murder was committed in the course of another serious offence. I am satisfied that this circumstance applies to all defendants. Ms Tihema you clearly had a plan to rob Mr Raviola of the car. Mr Jetson has acknowledged that he knew the plan was to take the car and he helped knock Mr Raviola out, in my view, to help achieve that. Mylesha Tihema also knew that was the plan and was there to assist.
[37] The question of whether there was a high level of brutality is more subtle. As it is often said, all murders are in some sense brutal, cruel or depraved, but this section requires those factors to be present in a high degree. As Ms Gray pointed out in her written submissions, the Court suggests this requires a “hardened state of mind”, or a “numbness of the soul”.8
[38] A complicating factor in this case is that while I am satisfied that all of you were present at some stage when Mr Raviola was being beaten with the shotgun stock, I cannot attribute the entire beating to one person, and I cannot carve out with precision the exact degree of involvement of each of you. There is also evidence to suggest that, although you all played your part, each of you at some point was shocked, and upset at what had occurred. Ms Tihema, you were crying in the bathroom afterwards, Mr Jetson you at least thought an ambulance should be called, although you did not
7 R v Rapira [2003] 3 NZLR 794 (CA).
8 R v Beazley [2019] NZHC 672 at [36].
follow through, and Mylesha, too, you have been affected by what you did that night. For all these reasons, I am not prepared to say that, individually, your role in the offending reached that threshold of brutality and callousness that triggers s 104(1)(e).
[39] In terms of the vulnerability of the victim, I have already explained that Mr Raviola was vulnerable in a number of ways. He was an older man and not in good health, although I acknowledge this did not make him physically frail. More importantly though, the circumstances in which the offending occurred made him vulnerable. He was lured into the bedroom by and then unexpectedly set upon by all four of you. You were all younger and stronger than him, so although he tried to fight back, he was no match for you.
[40] However, I am not satisfied that the circumstances show that he was “particularly vulnerable” such as would engage s 104, although it is nevertheless an aggravating feature of the offending.
[41] As I have found that s 104 is engaged that means, in each case, I have to consider whether a life sentence with a 17 year minimum term would be manifestly unjust.
[42]So I first turn to consider you, Debra Tihema.
Debra Tihema
[43] Ms Tihema, I accept entirely the Crown’s submission that you were the driving force behind what happened that night. I have already explained your role in terms of needing to pay the debt, rekindling your relationship with Mr Raviola in order to get the car to meet that debt, and persuading the three young people to assist you in that offending.
[44] The starting point is therefore, that a life sentence with a minimum period of imprisonment of at least 17 years should apply. The only issue is whether it would be manifestly unjust to do so.
[45] Your lawyers have pointed to a number of factors in mitigation. Many of these are outlined in a very full and helpful psychological report prepared by Dr Fran Vertue. I accept that report makes sad reading. There has been significant deprivation and abuse in your life. You have suffered both sexual abuse and physical abuse from an early age. You have had multiple caregivers, a gang-affiliated family, limited education and led a transient lifestyle. You are diagnosed as having a longstanding depressive disorder and post-traumatic stress disorder and you have used drugs and alcohol as an avoidance or coping strategy.
[46] The pre-sentence report repeats those themes and says the causative factors of your offending are alcohol and drugs, relationship difficulties, your friends and associates and violence. Similarly, the cultural report prepared under s 27 of the Sentencing Act says the culmination of disconnection from your whanau and cultural identity, and your adverse childhood experiences, have likely contributed to your poor decision-making and that has put you at risk of offending.
[47] I accept that your upbringing has contributed to the set of beliefs that Dr Vertue outlined in her report. These are that you see yourself as helpless and shameful, and others as unreliable and threatening. You believe violence is a legitimate way to resolve conflict or to punish a wrongdoer. You believe blood ties are more important than anything else and that you are obliged to protect your children under all circumstances and at whatever cost. You also believe that all problems should be dealt with within the family or the gang, and this belief system has clearly contributed to your involvement in this crime. It also prompted you to initially take all the blame for all the offending in the hope that the others would not be implicated.
[48] Your lawyers also suggest that a mitigating factor was that there was an element of provocation in this offending. I reject that entirely. It is clear from your text messages to Mr Raviola, that you offered him sexual gratification whenever it was advantageous to you, although to others, you made it clear you found him physically unattractive.
[49] The explanation that you gave to Dr Vertue that Mr Raviola presented “unexpectedly, as demanding sexual favours of you” on that night is simply not true
in my view. It is completely inconsistent with the text messages that you sent him in advance of him coming to your place that evening. There could be no doubt that you were offering to resume the sexual contact that there had been in the past between you. Also, it is clear from Mr Raviola’s texts that he never presumed he could have such contact. There were frequent messages in them to the effect of “I don’t want to see you if you don’t want to see me”, and “I don’t want to force you in any way”.
[50] He was taken to your bedroom on that night on the expectation of resuming the physical relationship and then you turned on him and commenced the planned attack to obtain his car keys. He retaliated in shock and anger and that confrontation brought Mr Hurrell and the rest of you in. I do not see Mr Hurrell’s evidence as inconsistent with that in any way at all. So, I do not accept that provocation can be raised as a mitigating factor.
Remorse
[51] Your lawyers also say that you deeply regret the events of that night . I accept that you deeply regret the position that your nephew, your daughter, and Mr Jetson are in. I also accept that you feel Mr Raviola’s death is a “constant burden on [your] shoulders”. I do not accept, however, that your primary regret is what you did to Mr Raviola. I believe your primary regret is what it has done to your family. That is, of course, a form of remorse, because you have realised how you have ruined the lives of these three young people. However, I do not accept that there is deep or genuine remorse for killing Mr Raviola. I do not sense that you have ever fully considered things from his perspective at any stage in the relationship.
Prospects of rehabilitation
[52] Despite that, I do not think you are beyond redemption. You were 39 years old at the time of the offending and did not have a significant offending history before that. I agree that your use of drugs and alcohol contributed to your lifestyle and to the events that triggered this offending, and this is something you are addressing while in prison. If you can address that, that would contribute significantly to your rehabilitation.
[53] However, the other driving force behind your offending is your loyalty to whanau and your affiliation to gangs. This offending was triggered by a debt owed to gang-affiliated family members, and your desire not to let the family down. This completely overrode your sense of what was decent or right. That, I believe, will be a harder issue for you to address and Dr Vertue recognises that your extensive gang affiliations and the anti-social associates you have, do put you at risk of further offending.
[54] That said, I believe that you have got strengths that can be cultivated. These include your commitment to relationships with your children, your social skills and your strong work ethic. You are an intelligent woman and that came through in the trial, and I think you have skills that you could cultivate.
[55] Overall, therefore, I consider you have some prospects of rehabilitation if you take this opportunity to reassess your life and work out how you can develop those strengths and manage the demons from your past.
[56] I will first consider what sentence I would impose if I was not constrained by s 104. I would have little difficulty setting a minimum period of imprisonment of at least 17 years, if not more, taking account of your central role in the offending, including introducing the weapon, the fact the offending was committed to facilitate a robbery, the brutality of the offending, the level of deceit and planning which you engaged in, and the fact you included young people who should have been taken care of by you, not brought into this plan.
[57] “Manifestly unjust” means more than just a severe or a harsh sentence. While your personal history of deprivation and abuse, and the resultant diagnosis of PTSD and depressive disorder would usually warrant a material discount to the starting point for the minimum period of imprisonment, as well a modest discount for a combination of remorse and rehabilitative potential, I still cannot get to the point where I can say it would be manifestly unjust to impose a 17 year minimum period of imprisonment on you.
[58] In reaching that conclusion, I note that the statutory minimum should not be departed from lightly,9 and the purposes of holding you accountable for the harm done, denouncing and deterring your conduct, point towards the statutory minimum period of imprisonment applying. So, as I have said, I cannot reach the conclusion that a MPI of 17 years would be manifestly unjust.
Cyle Jetson
[59]Mr Jetson, I now turn to discuss your sentence.
[60] The starting point is your role in the offending. Your lawyers suggest there is no cogent evidence upon which the jury could have concluded that you inflicted any of the fatal blows with the shotgun stock. They say that the key Crown witness, Mr Hurrell, did not implicate you in the use of the shotgun stock and the evidence of your fingerprint on the shotgun stock was not consistent with the use of it as a weapon. The only evidence which supports this, is your admission to Mr Samson-Arps that you hit Mr Raviola on the head with the butt of a shotgun several times and you thought that is what actually killed him.
[61] In my view, Mr Samson-Arps’ evidence was compelling, and I do not reject it on any of the grounds raised by your lawyer. He had no reason or incentive to lie and he knew things that only you could have told him. However, I treat all your statements with caution. Just as you attempted to deny your offending in the initial part of your first interview, and then to diminish your responsibility for it in your second interview to the police, I also see you as someone who was capable of overstating your role to someone, like a fellow prisoner, whom you wanted to impress.
[62] Thus, I have to weigh the account you gave to Mr Samson-Arps, with Mr Hurrell’s evidence, and your own admission in the second part of your first interview, which I think come closest to the truth, in deciding what your role was.
[63] On balance, while I think it highly likely you used the shotgun stock at some stage, I am not sufficiently confident that the jury came to the same conclusion that I
9 R v Harrison [2016] NZCA 381.
sentence you on that basis. However, I do not think that materially alters your culpability. I am sure that you were present in the room while Mr Raviola was being struck on the head by the shotgun stock. You admitted that the intention was to knock Mr Raviola out and you said your role was to do that when the others had not succeeded. Incapacitating Mr Raviola was a critical step in taking his car and you assisted in doing that by knocking him to the ground. While your role in the planning of this offending was much more limited, you were aware of a plan to take the victim’s vehicle to repay an outstanding debt, and you assisted the others to achieve that. For these reasons, I do not consider that the distinction between your role as a principal offender or as a party materially affects your culpability in the way your lawyers suggest.
[64] I also consider your role in dumping Mr Raviola at Sumner then burgling his home exacerbates your culpability.
[65] However, in sentencing I also have to take into account your personal circumstances. You were only 20 at the time of the offending, and as the Crown points out, it is important to impose a sentence if that is possible, which is not crushing, and which can encourage you to turn your life around.10
[66] I have had the benefit of a cultural report,11 and a pre-sentence report prepared for you. I also have the benefit of the earlier reports by Dr Nuth and Associate Professor Adamson on your cognitive functioning.
[67] The cultural report talks about your lack of positive role models in your upbringing and the trauma of having your father die suddenly when you were seven years old. It explains you have Maori whakapapa, and you have been disconnected from that part of your heritage, particularly by your maternal grandfather whom you understandably describe as “racist” and “an old school skinhead”. You experimented with alcohol and drugs from the age of eight, moving to harder drugs including methamphetamine as you got older. Inevitably, you dropped out of school early. It seems likely that your drug and alcohol abuse contributed to your cognitive
10 Churchward v R [2011] NZCA 531.
11 Prepared under s 27 Sentencing Act.
impairment which was identified by Dr Nuth. You are assessed as having borderline to low average intellectual ability, but with a particular weakness in the area of verbal comprehension. As Ms Lei says, this combination of factors may have triggered your detrimental coping strategies, leading you to poor decision-making, including getting involved in this offending.
[68] I note, though, that you have managed to hold down jobs and complete courses in the past. You successfully acquired qualifications in traffic control which led to you working in traffic management and it was only your diagnosis of epilepsy that prevented you from continuing in that. You have expressed an interest in learning about your whakapapa and culture and to develop positive relationships with your three children, with whom you still have contact. That suggests you do have real rehabilitative potential. I accept, too, that you have expressed some regret about what has happened on that night.
[69] So, with those observations in mind, I turn to your sentence. As I have already said, s 104 applies, so the starting point is life imprisonment with a 17 year minimum period of imprisonment, unless that would be manifestly unjust.
[70] If I were sentencing you without being constrained by s 104, I would impose a starting point of 15 years. I would discount that minimum period of imprisonment by four years to recognise the range of personal mitigating factors which have been identified, including your youth and rehabilitative prospects, your traumatic family background, including the loss of your father and your disconnection from your Maori whakapapa, which led to your substance abuse and poor decision-making. I consider these factors all contributed to your offending behaviour. The discount would also take into account, in a modest way, the time you have spent on EM bail.
[71] That would bring the minimum period of imprisonment down to 11 years. Given that, in my view, it would be manifestly unjust to impose a minimum period of imprisonment of 17 years and I would not do so. However, it goes without saying that I do not think your culpability is so reduced that it would be appropriate to impose a finite sentence.
Mylesha Tihema
[72] I turn now to you, Mylesha Tihema. For the benefit of the press, there has been no application to make name suppression permanent, and it is now lifted.
[73] I have already discussed in general terms your role in the offending. As for Mr Jetson, your lawyers say that I cannot assume that you were involved in hitting Mr Raviola with the shotgun stock and that affects your level of culpability. Your only direct admission is that you sat on the victim and twisted his arm while the others were assaulting him.
[74] However, I consider that Mr Hurrell’s evidence was critical in this regard and, in compelling terms, he gave evidence from which the only reasonable inference to draw was that you were hitting Mr Raviola with the shotgun stock once the others had left the room. Even though Mr Hurrell tried to backtrack from his earlier statements implicating you, he did not resile from the important parts of that evidence. His account is reinforced by your text messages after the offending, where you said “we only used the butt off (sic) the gun” and “my mum and bf (boyfriend) are going up for muder (sic) when I was the one who did it”. I am therefore confident that you did use the weapon during the assault on Mr Raviola.
[75] You also assisted with the clean up and accompanied Mr Hurrell and Mr Jetson to Mr Raviola’s home to burgle it. That is a further aggravating feature of your offending.
[76] Your lawyers then raise a number of factors which they say I should take into account in sentencing you. They are elaborated on in the reports I received prior to trial from Dr McGinn and others. They are also outlined in the s 27 report prepared by Ms Turner.
[77] The first is, of course, your age. You were only 15 years at the time of the offending. That brings into play the factors outlined in a case called Churchward, and the need not to impose a crushing sentence on you if that is possible.12
12 Churchward v R, above n 10.
[78] The next is that you have been diagnosed with foetal alcohol spectrum disorder (FASD), and this was not known at the time of the offending. That diagnosis explains your difficult behaviour and that has not been helped by your chaotic upbringing. You were removed from your mother’s care at six years old. You lived with your paternal grandmother until you were about 12 or 13. Your behaviour became worse when your mother reappeared in your life, and you have been alternately in CYF’s care or in the care of your mother since then.
[79] You desperately wanted a relationship with your mother and I accept that, at least in part, your role in your offending was motivated by your desire to support and side with your mother. It was your mother’s plan to lure the victim to the address and to introduce the weapon into the assault, and but for that, you would not have been involved in the offending.
[80] The cultural report also echoes those themes. It talks about your mother’s neglect and abandonment and your father’s absence and how you were raised in an environment which normalised negative behaviour. Like the other co-defendants, you were using synthetic cannabis at the time of the offending, and what is worse, you were supplied this drug by your mother. Abuse of alcohol and drugs also led to you committing a subsequent offence to this offending of assault with attempt to rob.
[81] I have no doubt that the combination of these factors robbed you of any ability to see a route other than the offending behaviour. Until recently, you have had no structure, no role models and have been hampered by the FASD you were born with, and the drug and alcohol abuse you were led into. This has limited your ability to achieve academically and your ability to manage your emotions and behave in appropriate ways. It is promising though, that while residing at the Youth Justice Facility, Te Au Rere, you were able to settle with the benefit of medication and a structured environment and you completed a number of courses there. I was also impressed by the way you were able to manage yourself in the Courtroom for what was a long trial. This gives me some hope that with a structured environment you could make something of your life. These positive sides to you were also reinforced in the letter I got from your grandmother, Sue Anderson.
[82] In my view, there is no doubt it would be manifestly unjust to sentence you to life imprisonment with a minimum period of imprisonment of 17 years. The real issue is whether I should impose a finite sentence.
[83] In that regard, your lawyer relies particularly on a case, R v Nelson, where a 13 year old with FASD pleaded guilty to a charge of murder when he shot the partner of the man he was living with and whom he regarded as a father figure. In that case, the Court imposed a finite sentence of 18 years’ imprisonment.13 There are, though, other examples, covered in the lawyers’ submissions where young people have been sentenced to life imprisonment, notwithstanding many mitigating features including disabilities such as FASD.14
[84] I have been referred to lots of cases in the submissions and I have considered them all. However, I think this case is particularly like the case of R v Pomare, where Mr Pomare, who was 16, was identified as suffering from FASD. He committed murder by hitting the 56 year old victim on the head with a weapon on at least two occasions and stole from him, and the murder involved aggravating features under s 104. In that case, while the High Court considered significant discounts could be given for mental health and the diagnosis of FASD, it also held that the objective seriousness of the offending had to be considered. The Judge said an initial start point for the MPI for that kind of offending could have as high as 19 years, but in the circumstances a life sentence and MPI of 12 years was imposed and that was upheld by the Court of Appeal.
[85] Similarly, in a case called Te Wini v R, the Court of Appeal upheld a sentence of life imprisonment with 10 years MPI where a 14 year old defendant and her co-defendant planned to rob an elderly school teacher and struck him on the head killing him. The Court of Appeal in Pomare said in cases where s 104 is engaged, the specified minimum sentence is not to be departed from lightly, and in my view, this makes a finite sentence untenable. That means, I cannot reasonably impose one.
13 R v Nelson [2012] NZHC 3570.
14 For example, R v Pomare [2017] NZCA 155 where a life sentence and 12 year MPI was imposed on a 16 year old, R v O’Brien (2003) 20 CRNZ 572, where a life sentence with a 10 year MPI was imposed on a 14 year old, and R v Trevithick HC Auckland CRI-2007-244-9, 19 June 2007 where a 15 year old pleaded guilty to stabbing the 77 year old victim and was sentenced to a life sentence with a 14 year MPI.
[86] While I accept that your culpability is reduced because of your FASD and your youth, and disadvantaged upbringing, I consider that a life sentence with a MPI of 10 years is the appropriate sentence in light of the objective seriousness of the offending and the statutory policy of s 104.
Sentences
[87]Debra Tihema, Cyle Jetson and Mylesha Tihema, would you please all stand.
[88] Debra Tihema, on the charge of murder, I sentence you to life imprisonment with a 17 year minimum period of imprisonment.
[89] Cyle Jetson, on the charge of murder, I sentence you to life imprisonment with a minimum period of imprisonment of 11 years. On the charge of burglary, I sentence you to six months’ imprisonment to be served concurrently.
[90] Mylesha Tihema, on the charge of murder, I sentence you to life imprisonment with a minimum period of imprisonment of 10 years.
[91]You may stand down.
Solicitors:
Raymond Donnelly & Co., Christchurch Prime Legal Ltd, Christchurch
Public Defence Service, Christchurch M I Sewell, Barrister, Christchurch
K J Basire, Barrister, Christchurch
S M H McManus, Barrister, Christchurch
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