R v Todd
[2024] NZHC 897
•22 April 2024
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2022-20-2675
[2024] NZHC 897
THE KING v
ALIZAYE KIREKA WHINDZAR TODD
Hearing: 22 April 2024 Appearances:
S B Manning for Crown
N M Graham for Defendant
Judgment:
22 April 2024
JUDGMENT OF CHURCHMAN J
[1] Darcy Strickland was 29 years old. He is described as having been kind, generous, loving and respectful. He was a talented athlete and artist. He was also someone who made a significant contribution to the community of Flaxmere. He had returned to teach at the local school and he was a role model and mentor for local rangatahi.
[2] V is 24 years old, she lives in Flaxmere. She was in employment and was completing a trade qualification. On the night of 13 October she was walking home with Mr Strickland and two other friends after attending a birthday party.
R v TODD [2024] NZHC 897 [22 April 2024]
[3] Alizaye Todd, I have today to sentence you for murdering1 Darcy Strickland and for injuring V with intent to cause her grievous bodily harm.2 The purpose of today’s hearing is to impose a sentence on you and also to explain the reasons why I have determined what your sentence should be.
[4] I start, as I must, by setting out the facts of the offending. You have entered pleas of guilty to the two charges. I must accept all the facts, either expressed or implied, that are essential to those pleas of guilty. At 11.45 pm on 13 October 2022, you and your co-offender Keontay Chadwick approached Mr Strickland and V as they were walking along Flaxmere Avenue. Earlier that night there been a verbal altercation between Mr Chadwick and V.
[5] You began to assault Mr Strickland causing him to fall to the ground. As he lay on the ground you stomped on him multiple times targeting his head and neck. Mr Chadwick joined in the attack. A witness saw the two of you punching and kicking Mr Strickland as he lay on the ground. You were described as appearing to enjoy what you were doing and laughing. You were angry, and making sure that each stomp was making contact with Mr Strickland and sweating profusely as you did so.
[6] V tried to intervene and pleaded with you and Mr Chadwick to stop. You then punched V repeatedly causing her to collapse to the ground. Once she was lying prone on the ground you then stomped on her face and head approximately five times rendering her unconscious.
[7] After having assaulted Mr Strickland, you then approached members of the public who had seen what happened and asked one of them for a knife so you could “finish it”.
[8] You then turned your attention to one of the bystanders who, fearing for his safety, fled on foot. You followed him for a short distance. Both you and Mr Chadwick then walked away and you were heard swearing and saying “seig fucken heil”.
1 Crimes Act 1961, s 172 — maximum sentence of life imprisonment.
2 Sentencing Act 2002, s 24(1)(b).
[9] Mr Strickland suffered unsurvivable head injuries and died at the scene. V suffered serious facial injuries and head trauma that have had a lasting impact on her.
[10] I now turn to summarise the submissions of counsel. They have provided me with detailed written submissions which I have read. Those submissions address the legal provisions relevant to sentencing someone for murder and for the offence of injuring with intent to cause grievous bodily harm. They have supplemented their written submissions with oral submissions this morning.
[11]Mr Manning, counsel for the Crown submits:
(a)That you must be sentenced to life imprisonment, that being the presumptive mandatory sentence for murder.
(b)A life sentence would not be manifestly unjust, having regard to the circumstances of the offending and to your circumstances.
(c)Despite the brutality and callousness of your offending the Crown acknowledges that it did not reach the “high level” required to engage s 104(1)(e) of the Sentencing Act 2002 (the Act), which would require a minimum period of imprisonment of 17 years.
(d)Mr Manning submits that the starting point for the minimum period of imprisonment that satisfies s 103 is in range of 14 years imprisonment.
(e)He submits an uplift in the range of 9–12 months is justified to reflect the additional offending arising out of your assault on V.
(f)Further uplift in the range of three to six months is justified to reflect your previous convictions for violent offending.
(g)A reduction for your guilty pleas, in the range of 18 months to two years, he says, is justified.
(h)A further reduction, in the range of one to two years, is required to reflect your personal circumstances.
[12] The Crown consequently submit that an end sentence of life imprisonment with a minimum period of imprisonment in the range of 11–12 years is appropriate.
[13] I turn now to the submissions of your counsel Ms Graham. She concedes that the presumption of life imprisonment is not displaced in this case, despite your personal circumstances making for what is described as “tragic reading” and you having been diagnosed with ADHD and PTSD. Your counsel also submits s 104 does not apply in this case, and notes the Crown’s agreement with this.
[14] On the critical issue of what your minimum period of imprisonment should be, Ms Graham submits that a starting point of 12–13 years’ is appropriate with an uplift of no more than 12 months to reflect the related but separate assault on V.
In respect of your personal circumstances your counsel emphasises that:
(a)You were a youth at the time of all of your previous convictions.
(b)A plea discount in the range of 18 months to two years would be appropriate.
(c)A reduction of two years for your personal circumstances would also be appropriate.
[16] Your counsel consequently submits that a final minimum period of imprisonment of 10–11 years is appropriate in this case.
[17] I now turn to the approach I must take to sentencing. Since the present case involves sentences of imprisonment for more than one offence, I am required to have regard to the totality principle, under which the total sentence must be proportionate
to the gravity of the overall offending.3 The most serious offending receives a penalty that is appropriate for the totality of the offending.4
[18] In relation to the murder charge, you must be sentenced to imprisonment for life, unless the circumstances of the offence and your circumstances, mean that a lesser sentence of imprisonment for life would be manifestly unjust.5 Where the nature of the offending may suggest a term of life imprisonment was appropriate, but your circumstances may not, your circumstances must be overwhelmingly mitigatory for the presumption of life imprisonment to be displaced.6
[19] If a sentence of life imprisonment is imposed, I must determine your minimum period of imprisonment. It is the period that is needed to satisfy various sentencing purposes. The minimum period of imprisonment needs to be no less than 10 years.7 The relevant sentencing purposes are:8
(a)Holding you accountable for the harm done to the victim and the community by the offending;
(b)denouncing the conduct that was involved;
(c)deterring you and other people from committing the same or a similar offence; and
(d)protecting the community from you.
[20] If I am satisfied that the murder was committed with a high level of brutality, cruelty, depravity or callousness, I must impose a minimum period of imprisonment of at least 17 years.
3 Sentencing Act, s 85.
4 Section 85(4)(a).
5 Section 102.
6 Van Hemert v R [2023] NZSC 116, [2023] 1 NZLR 412 at [59].
7 Sentencing Act, s 103.
8 Section 103(2).
[21] Applying the totality principle, an uplift to the minimum period of imprisonment will be given for the second charge of injuring with intent to cause grievous bodily harm. Such uplifts require a starting point for the charge to be identified in line with any guideline case, which in this case is R v Taueki9. The sentence is then adjusted to ensure it is proportional to the totality of the offending.
[22] In determining what, if any, further uplifts and discounts may also be given for personal aggravating and mitigating factors, I must consider matters such as your previous convictions, the guilty pleas, any remorse and your personal circumstances.
[23] Both counsel agree that the presumption of life imprisonment is not displaced in this case. This is undoubtedly correct.
[24] I turn now to the question of what minimum period of imprisonment should be imposed. Section 104 of the Act provides that where the offending has certain specified features the minimum period of imprisonment should be 17 years. Both counsel have submitted that section does not apply in the present case. I have carefully compared the facts of the cases which are similar to yours. I have ultimately concluded that although your offending was brutal it did not cross the threshold required for s 104 (1)(e). That provision sets a very high threshold. Similar offending in cases such as R v Sullivan10 and R v Houma11 and the more serious offending in the cases of R v McCallum12 and R v Taoho13 were found not to cross that threshold.
[25] Your youth and personal circumstances, as I will shortly explain, mean that imposing a minimum period of imprisonment of 17 years on you would be manifestly unjust. Consequently, the grounds for a minimum period of imprisonment of at least 17 years are not present in this case.
[26] However, there are clearly a number of aggravating elements of the offending which do impact on what the minimum period of imprisonment should be. You sought
9 R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769.
10 R v Sullivan HC Wellington CRI-2009-485-000086, 10 February 2010.
11 R v Houma [2008] NZCA 512.
12 R v McCallum HC Whanganui CRI-2008-083-2794, 12 February 2010.
13 R v Taoho HC Rotorua CRI-2009-263-163, 12 December 2011.
out the confrontation with V and Mr Strickland, heading out with Mr Chadwick to find them following an earlier altercation between Mr Chadwick and V. You inflicted extreme violence on Mr Strickland, including targeting his head and carried that out for several minutes. You continued to assault Mr Strickland even after he had been rendered unconscious. He did not put up a defence and did nothing to justify the original attack or its continuation. He did not pose a threat to you. You appeared to have enjoyed attacking Mr Strickland as evidenced by the witnesses who said they said you were laughing during the assault. You also failed to seek assistance but leaving the scene while both the victims lay unconscious on the street. You expressed an intention to kill Mr Strickland when you asked onlookers for a knife so that you could finish it. Those are all serious aggravating factors.
[27] The effects of your actions have been devastating. The victim impact statements that were read to the Court this morning, and the other statements which have been filed and which I have read, record the enormous pain, loss and suffering that Mr Strickland’s murder has caused. I acknowledge the courage of the four people who made those statements to come forward and read them out in Court. That is not an easy thing to do. I hope you listened carefully to them. There was a lot of compassion and common-sense in what was said this morning. I acknowledge to the whanau of Mr Strickland that nothing that I can say in the sentencing process can provide solace for the loss of such a loved and valued family member.
[28] I also note the significant consequences for V of your assault on her. The serious injuries that she sustained meant that she could no longer to continue in her employment, she has become unemployed. She needs ongoing counselling. They are also serious matters.
[29] Your counsel has submitted that a starting point between 12-13 years’ minimum period of imprisonment is appropriate, whereas the Crown has suggested 14 years. I have reviewed the case law that your counsel14 and Mr Manning have referred to me and I have concluded that the Crown’s submissions are more
14 Houma, above n 12; R v Piilua HC Christchurch CRI-2005-009-011878, 1 September 2006; R v Shaheem [2019] NZHC 1200; Sullivan, above n 11, McCallum, above n Error! Bookmark not defined.; R v Rangiwhaiao [2012] NZHC 1751.
representative of the law, particularly given the similarity of your offending to that of the case in R v Houma.15 I therefore set the starting point at 14 years minimum period of imprisonment.
[30] A substantial uplift to that is warranted for the separate offending against V. A number of aggravating factors identified in the case of R v Taueki are engaged for this offending. Extreme violence occurred with several blows being dealt to V. Although she was fortunate to not suffer horrific injuries like those of Mr Strickland, the facial and head trauma she suffered were serious. Her head was attacked, and she was particularly vulnerable, being alone once Mr Strickland was incapacitated and in bending down to try to help him.
[31] There was also clear callousness on your part as your attack against her appeared motivated simply by her attempt to help Mr Strickland. This results in this aspect of your offending falling within band 2 in the case of Taueki,16 when adjusted by the findings in Kiri v R17 results in a starting point for the offending against V in the range of 3.5-7 years.
[32] Mr Manning for the Crown counsel submits that, on a totality basis, an uplift of 9-12 months is warranted, whilst your counsel submits the uplift should be no more than 12 months. Given the circumstances of the assault, an uplift of 12 months is the very least required to give proper recognition to the seriousness of this offending.
[33] I now turn to consider any uplifts for personal aggravating factors. You have had a clear pattern of violent offending over the years. Although you are only 21 years old you have already been convicted of wounding with intent to cause grievous bodily harm twice and assault with intent to injure three times including two incidents while you were in the Te Maioha Youth Justice facility.
[34] The frenzied and unprovoked violence which is a feature of your earlier offending has strong similarities with the facts of the present case. I agree with the Crown that your prior convictions show an entrenched attitude to violence which
15 R v Houma above n 12.
16 Taueki, above n 10, at [34] and [39].
17 Kiri v R [2021] NZCA 155 at [42].
suggests that you have reduced prospects for rehabilitation. Ms Graham, your counsel, emphasises your youth at the time of the prior offending and I accept that your youth is relevant. I consider that an uplift of six months is required to give proper recognition to this past offending, even taking into consideration of your age at the time.
[35] I turn now to set out the discounts that are available to you as a result of your personal circumstances. I have had the benefit in preparing for this sentencing in reading comprehensive cultural and psychological reports as well as the pre-sentence report prepared by the Department of Corrections. They make bleak reading. From your earliest years you were exposed to family violence. The fact that your father was in the Mongrel Mob meant that gratuitous violence was normalised for you. Both of your parents were incarcerated for most of your life.
[36] You were moved around many family homes reportedly because of your difficult behaviour. You were subjected to violent discipline in the various homes you were placed in. You began to commit crimes to obtain the things you didn’t have and to provide for yourself and began using alcohol and drugs at a young age.
[37] You were placed in state care from the age of 13, and in adult prisons from the age of 16. After coming into state care, you were diagnosed with PSTD and ADHD, and given medication to treat your ADHD. However, as your counsel has noted, upon release you were unable to obtain further medication as you didn’t know how to go about doing so. In the lead up to this offending, you were abusing substances: cannabis, alcohol, methamphetamine and MDMA.
[38] You have become completely disconnected from your hapū and iwi and have no connection with Te Ao Māori. The section 27 report writer says that as a result of your father being a patched Mongrel Mob member, the norms and values of gang culture have superseded any influence of tikanga māori.
[39] You refused to disclose to the section 27 report writer, what your current gang status is. It seems you’re either still a prospect for the Mongrel Mob or may now be patched member.
[40] The reports provide a basis upon which to draw a contributory link between your background and this offending. That is something I am obliged to have regard to. I am also obliged to have specific regard to your youth. You were 19 at the age of the offending and are 21 now.
[41] The factors that require a discount for youth were set out by the Court of Appeal in Churchward v R.18 One of those factors is the greater prospect young people have for rehabilitation. The section 27 report writer identifies you as being at the “preparation stage” of readiness for change. I’m not sure what exactly that means but I take it that you are at least open to changing your life. The psychological report writer says that you are intelligent enough to benefit from the programmes that will be available to you in prison. There would therefore seem to be some, albeit limited, prospect for optimism as to your ability to rehabilitate yourself. However, I suspect the greatest influence on that possibility of you overcoming the factors which have contributed to your propensity for extreme violence, is whether you appreciate the need to sever your contact with the Mongrel Mob if you are genuine about wanting to break the cycle of violence and incarceration that will inevitably follow if you do not do that.
[42] I was not addressed by your counsel about whether there should be a separate discount for remorse and in all the material I have read I do not see that there is any basis for such a discount.
[43] A consideration of all of the personal factors that I have discussed warrants a reduction in the minimum period of imprisonment. As a result, I find a discount of two years for your personal circumstances is appropriate.
[44] Your guilty plea was entered 13 months after you were charged. The Crown case against you was very strong, particularly given the number of witnesses and the other circumstances. Although you have saved the criminal justice system the time and resources that would have been taken up had you proceeded to trial,19 there was
18 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [76]–[92].
19 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45] and [57].
still a significant amount of time before you entered your guilty plea. I therefore consider the proper discount for your guilty plea to be 18 months.
Conclusion
[45] Please stand Mr Todd. For the crimes of murdering Darcy Strickland, and injuring V with intent to cause grievous bodily harm, I sentence you to life imprisonment. You are to serve a minimum period of imprisonment of 12 years before being eligible for parole.
[46]Please stand down.
Churchman J
Solicitors:
Crown Solicitor, Napier for Crown N M Graham, Napier for Defendant
4
0
0