R v Trevithick HC Auckland CRI 2007-244-000009

[2007] NZHC 1868

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-244-000009

THE QUEEN

v

KORI BRIAN TE MOANANUI TREVITHICK

Charge:          Murder Plea:     Guilty Appearances: R Burns for Crown

P Williams QC/H Phillips for Prisoner

Sentenced:     19 June 2007

Life imprisonment - minimum non parole period of 14 years

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Auckland P Williams QC, Auckland H Phillips, Auckland

R V TREVITHICK HC AK CRI 2007-244-000009  19 June 2007

[1]      Kori Brian Te Moananui Trevithick at the age of 15 you are for sentence in this Court having pleaded guilty to one count of murder.   Murder carries the maximum penalty of life imprisonment.  The victim was Doreen Eva Dorothy Reed, a 77 year old widow.

[2]      I take the facts from the police summary to which you have pleaded guilty. At about 2.00 a.m. on 13 January this year, you left your girlfriend’s address after an argument.  It seems you had also been drinking.  You biked about a kilometre to the victim’s address.  When you got there you switched the power off to her home.  You then went up internal stairs to an upper level.  You broke into that upper level by putting your hand through a cat door, unlocking it and gaining entry.  Once inside you went to the kitchen and took a knife from the kitchen door.  You then searched through the home.   You searched through two bedrooms.   They were unoccupied. You then went into the victim’s bedroom.   She was in her bed asleep.   You approached her bed.  She awoke and tried to sit up.  You then stabbed her about 25 times to the head, chest, face, neck, back and hands.  After killing her you then went through the rest of the house.  You removed a medical link alarm system from the wall.  You deactivated it.  You took $50 from her handbag and also took her car. You cleaned your hands and the knife while you were at the house and placed the knife behind the stove in the kitchen in an apparent attempt to conceal it.

[3]      The victim’s body was not discovered until some concerned friends visited just after midday on the day after.  The scene they encountered was horrific.  The victim was lying on her bed in her own blood.  The pathologist described the wounds in graphic detail.  The most serious were a wound to the victim’s cranial cavity, just in front of her left ear, which would have been almost immediately fatal.  There was one stab wound that went right through her heart.  Still another penetrated her right lung.  There were six stab wounds to the face.

[4]      You were spoken to by the police on 16 January after the victim’s car was located near your home.  You admitted the offence.  After initially denying it you

made a full admission.  On 21 March this year you pleaded guilty to the murder and were remanded to this Court for sentence.

[5]      The pre-sentence report discloses the following.  You are 15 years old.  You are the youngest of four sons.   You have a girlfriend.   You have a strong and demanding relationship with that girlfriend.  Your parents describe your actions as totally out of character but admit that for approximately a year prior to this murder you had engaged in drinking, you were using drugs, were stealing and skipping school.  You say that you do not consider yourself to be violent in any way and you denied being heavily intoxicated at the time.  You admit you did not know the victim and you said that you simply went to her house as a purely random choice.  Your main intention, you say, was to locate her car keys and steal her car.  You turned the power off to open the garage door.  You say you picked the knife up because you were scared that someone would awaken.  You say you blacked out and do not have a recollection of the attack.

[6]      It is of concern that the probation officer observes that  you  appeared to demonstrate no empathy or sympathy for the victim and sought to minimise and justify your actions.  Further, a case worker at the Youth Justice North facility where you have been since January, described you as manipulative at times and totally committed to getting your own way.  She perceives you as being unsympathetic and unrepentant, adding that you persistently look at matters from an egocentric perspective.  While you are usually quiet and demonstrate self control, one incident has  been  recorded  of  intense  anger  on  your  part,  which  has  resulted  in  your temporary isolation.

[7]      The key factors assessed as contributing to the offence were the consumption of  alcohol.    The  probation  officer  considers  that  there  are  issues  as  to  your motivation to change.

[8]      In light of those matters the Court has to be cautious in considering counsel’s submission that your circumstances are such that it is improbable you will ever offend again, particularly in relation to violence.

[9]      Further insight has been provided by a number of forensic reports that have been obtained.  Counsel has referred to those and I do not propose to refer to them in detail.

[10]     A psychiatric report  was  prepared  on  20  March  2007.    Information  was obtained from you, your mother and staff at the Youth Justice North facility.

[11]     Amongst other things the report notes that since you were 12 or 13 you have regularly consumed cannabis and over the last year had increased that consumption along with alcohol.   You stole money for the cannabis.   You have a supportive family.  You have no history of childhood behaviour or emotional difficulties and your academic and social functioning at school appeared good until you reached intermediate and high school.  You do not have a history of violence.  This is your first violent offence.

[12]     The report notes that you exhibit some symptoms of post traumatic stress disorder but did not meet the full diagnostic criteria for that disorder.   While you have some depressive symptoms you are not suffering from a diagnostic depressive disorder.  It was confirmed that you were fit to stand trial and to plead.

[13]     At defence counsel’s request a second psychiatric report was prepared.   It describes a generally happy childhood, with some difficulties later.    You perceived yourself as a good student until about 13 years old when your behaviour as well as your grades began to deteriorate.  The report notes a high degree of emotional and intellectual immaturity on your part and suggests you do not fully understand the consequences of your actions.

[14]     A progress report was prepared by your case worker on 21 May this year. That details your behaviour and general demeanour whilst in residence at the Youth Justice Criminal Justice Unit.  That notes you have been quite settled during the last six weeks and your current assessment is that there is low potential for self harm.  It also notes that while you participate in both educational and extracurricular programmes you often demonstrate an attitude of superiority towards others.  You appear to perceive privileges as your right.  You do not like to be challenged in any

way or told no.  You have a tendency to close down emotionally and not deal with your problems.

[15]     Mr Trevithick the reports I have been referring to focus on you.  I have also, however, had relevant victim impact reports that set out the effect of your actions on others close to the victim.  You may not fully appreciate it, but your actions impact on a number of people.   It cannot be overlooked that your offending has had a terrible effect on a number of people including those close to you.   That includes your family and I acknowledge your family and their support in Court today.

[16]    In sentencing you I must take into account the purposes and principles underlying the approach to sentencing under the Act.  In this case given the nature of the offending the purpose of the sentence is:

•    to hold you accountable for the harm done to the victim, the deceased, and the community by the crime of murder;

•    to promote in you a sense of responsibility for and acknowledgement of the harm caused by your actions;

•   to denounce your conduct;  and

•   to deter you and others from committing such seroius offending;

•   Also insofar as it is possible, to have in mind and assist your rehabilitation.

[17]     The relevant principles to consider  are  the  seriousness  of the  offence  of murder and the desirability of achieving consistency in sentencing in respect of similar offending.

[18]     I also take into account the need to consider whether your circumstances are such that an otherwise appropriate sentence would be disproportionately severe.

[19]     Section 102 of the Sentencing Act provides a presumption in favour of life imprisonment for murder, unless a sentence of imprisonment would be manifestly

unjust.  In his written submissions Mr Williams has submitted that your emotional immaturity and lack of other previous violent behaviour favour a finding that life imprisonment would not be appropriate.   I am, however, not able to accept that submission.

[20]     The Court of Appeal has on a number of occasions considered the application of s 102.   A conclusion as to whether a sentence of life imprisonment would be manifestly unjust has to be made on the basis of the circumstances of both the offence and the offender.  It is an overall assessment.  The injustice must be clear as the use of manifestly requires.  I refer to the decisions of R v Rapira [2003] 3 NZLR

793 and R v Williams [2005] 2 NZLR 506. I also refer to the case of R v Mayes [2004] 1 NZLR 71 where the Court of Appeal considered the position of an offender who was intellectually or psychologically impaired. The sentencing Judge in the High Court had determined that a sentence of life imprisonment was manifestly unjust. On appeal the Court of Appeal referred to an earlier decision of R v O’Brien CA107/03  16  October  2003  involving the  case  of  a  15  year  old  offender  with intellectual impairment.  In that case the Court observed:

… low intellectual capacity unrelated to the mental elements of criminal responsibility,  is  seldom likely  to  justify  a  departure  from  the  statutory presumption.

[21]     In this case, in my judgment it cannot be said that life imprisonment would be manifestly unjust.

[22]     I am then required to have regard to the minimum period of imprisonment. Section 104 of the Sentencing Act provides for a minimum period of 17 years in certain circumstances.  Normally a sentence of life imprisonment is accompanied by an order the minimum term be 10 years but Parliament has provided for a minimum non parole period of at least 17 years if the offending is so serious it fulfils one or more of the criteria in s 104 and that it would not be manifestly unjust to impose a minimum non parole sentence of 17 years.

[23]     In this case the Crown submits that s 104 is triggered in one of four ways.

•   First, this was a murder in the course of the unlawful entry by you into the victim’s home.

• Second, that it involved a high degree of brutality and cruelty.   While acknowledging by definition all murders involve a brutal act, the frenzied nature of this attack puts it among the more brutal.

•   Next, the Crown say the murder was committed in the course of another serious offence, that of burglary.

•   Finally the victim was undoubtedly vulnerable given her age.

[24]     I accept that s 104 of the Sentencing Act applies to your case.  The issue is whether it would be manifestly unjust to impose a minimum non parole sentence of

17 years.  Mr Williams submits that it would be, given your age, your remorse and your early guilty pleas.  He notes that you are effectively a first offender, certainly a first offender for violence.  He refers to and relies on the decision of R v Tumahai (HC Auckland CRI 2004-092-004001, 4 June 2004, Harrison J).  He submits that a minimum sentence of 10 years’ imprisonment  would be the appropriate and correct result in this case.

[25]     The Court of Appeal have addressed the issue of the effect of a guilty plea and other mitigating factors in the case where a minimum non parole period of 17 years would otherwise be required under s 104.  In the case of R v Williams (supra) the Court of Appeal effectively proposed a two stage approach at [52] – [54]. The Court is required to consider the degree of culpability of a case before it by taking into account the qualifying factors from s 104 together with other aggravating and mitigating factors. The Court must have regard to the policy of s 104 that in general the presence of one of the factors establishes the murder is sufficiently serious to justify a minimum term of not less than 17 years.

[26]     Mr Trevithick, as I have said, s 104 applies to your case on a number of grounds.   The grounds, that I have identified and referred to are effectively aggravating features recognised by Parliament in the statute.

[27]     I then take into account the mitigating factors that counsel has referred to and that appear from the facts, first, your early acceptance of guilt confirmed by your guilty plea at a very early stage.  I also note your limited emotional and intellectual maturity, your remorse and your age.

[28]     Counsel for the Crown accepts that the Court can properly have regard to the remorse that you have expressed.  I have read the letters that you have written.  Your letter to the court in particular is quite a mature letter for a 15 year old.  You say you are sorry for the terrible, terrible thing that you have done.  I am prepared to accept that remorse is a factor I can take into account.

[29]     I also have regard to the relevant authorities that have grappled with this issue, including R v Uluakiola (HC Auckland, CRI 2005-952-002580, 17 March

2006, Keane J);  R v Zhou (HC Auckland, CRI 2005-092-010395, 13 October 2006, Potter J);  R v King (HC Christchurch, CRI 2004-009-001635, 8 March 2005, John Hansen J);  R v Falaniko (CRI 2005-092-001194, 16 February 2007, Priestley J);  R v L (HC Auckland , CRI 2004-44-008643, 13 June 2006, Rodney Hansen J);  R v McSweeney [2007] NZCA 147; and R v Tumahi (HC Auckland, CRI 2004-092-

004001, 4 June 2004, Harrison J).   I also have regard to the Court of Appeal’s decision in R v Slade [2005] 21 NZLR 526 where the Court noted that Parliament has not chosen to make a specific exception for youth.

[30]     That process leads me to conclude that were it not for s 104 a lesser minimum term than 17 years as an end sentence would be justified in the circumstances of this case.

[31]     I am, however, still required to consider whether to impose a minimum term of  17  years  would  be  manifestly  unjust.    In  that  context  I have  regard  to  the observations of the Court of Appeal in Williams (supra) that a minimum term of 17 years would be manifestly unjust where the Judge decides as a matter of overall impression the case falls outside the scope of the legislative policy that murders with specified  features  are  sufficiently  serious  to  justify  at  least  that  term.     That conclusion can be reached only if the circumstances of the offence and offender are such that the case does not fall within the band of culpability of quantifying murder.

[32]     Applying that test to this case, while your offending is such that a start point of 17 years or frankly even more would be justified, bearing in mind the personal mitigating factors of your very early guilty plea, your age, your limited emotional maturity and giving you credit for remorse, I am satisfied that the minimum term would, but for s 104, have been less than 17 years, so that to impose 17 years would be manifestly unjust.

[33]     Mr Trevithick, please stand.  On the count of murder you are convicted and sentenced to life imprisonment.  You are to serve a minimum non parole period of 14

years.  Stand down.

Venning J