R v Walker
[2015] NZHC 3214
•15 December 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-004-1893 [2015] NZHC 3214
THE QUEEN
v
BENJAMIN WALKER
Hearing: 15 December 2015 Appearances:
S McColgan for the Crown
M Goodwin/R McAusland for the DefendantJudgment:
15 December 2015
ORAL SENTENCING NOTES OF THOMAS J
Solicitors:
Meredith Connell, Auckland.
Counsel:
M E Goodwin, Auckland.
R v WALKER [2015] NZHC 3214 [15 December 2015]
Background
[1] Mr Walker, you appear for sentence following a trial by jury where you were found guilty of a charge of attempted murder.1 The maximum penalty for this offence is 14 years’ imprisonment.
Facts
[2] The victim and you were in an on-again, off-again relationship for about three years but had separated about 12 months before the incident which occurred on
18 February 2015. You and the victim were still friends, occasionally seeing each other. It is fair to say it was a troubled relationship but still a close one.
[3] By the date of the offending, the victim was well advanced in her plans to travel to Spain, intending to leave in March 2015.
[4] You were concerned she would meet someone else when she went to Spain. On a previous occasion, after a telephone conversation between you and the victim when she went to Australia, you told your then girlfriend you wanted to stab the victim, calling her a whore. You said in evidence your core concern about the victim going to Australia was that she was going to see another man. You told the jury you were absolutely against the victim seeing other people.
[5] On the day of the offending, you sent a text message to the victim saying you were going to Otaki the next day. You accept you used that to get an immediate response from her and for her to come to your flat.
[6] When the victim and her friend arrived at your flat, you all sat outside, drinking and talking. You used the pretext of being cold to go inside and get a jumper but, instead, you took a knife (about 12 cm in length) and hid it in your jumper. You then set a test for the victim, asking if she would agree to spend the night with you. You agreed you would not have stabbed her if she had agreed to stay
with you.
1 Crimes Act 1961, s 173.
[7] You repeatedly asked the victim to go with you the next day to Otaki and for her to stay with you that night. She was adamant that she would not. The victim and her friend became uncomfortable and wanted to leave.
[8] You became agitated and said you had something to give her before she left. [9] You said to the victim, “you shouldn’t fuck with my heart”.
[10] You grabbed her and held her close around the waist so she could not get away.
[11] You then stabbed her in a frenzied attack, wherever you could in the upper part of her body. You repeatedly swore at her, saying “fuck you for playing me”, while you did this.
[12] You abused her, calling her a “lying fucken bitch”, “slut”. You said to her
“you fucking bitch look what you made me do”.
[13] The first stabs were when the victim was standing and they continued when she was lying on her side in the foetal position. You crouched over her, stabbing around her chest area and arms. The victim tried to protect herself with her arms, protecting her face and screaming “no, no”.
[14] You stabbed the victim repeatedly to her torso, arms and head, wounding her at least 15 times.
[15] The knife broke. You went back into the flat and got another one and a bottle of whiskey. You showed the knife to the victim, saying “see you in heaven”.
[16] You used the knife on yourself then searched through the victim’s handbag
and took her car keys, before driving away.
[17] You drove to the North Shore Hospital where you presented yourself at the emergency department in relation to your self-inflicted wounds.
Reports
Victim impact statement
[18] In the victim impact statement, the victim speaks of her experience of denial, sadness, frustration, confusion, anger and anxiety about the offending and the fact that you, someone she had loved for a long time, could hurt her in that kind of way.
[19] She speaks of the surgeries she underwent and the ones she will have to undergo in the new year. She remembers the panic of waking up from the first surgery and screaming because of the pain.
[20] The psychological trauma is exhausting, saying she has not slept a whole night since the offending. She is terrified of you.
[21] She also speaks of her struggle to accept the severity of the injuries you have caused. The damage caused to her left arm is likely to be permanent; although she has partial wrist function and can feel some tingling in her fingers, she speaks of the things she will never be able to do again; like playing an instrument, diving, catching a ball or clapping.
[22] Obviously, the victim’s travel plans fell apart but what is most distressing is the financial situation into which she has been forced. She is now unable to work in the hospitality industry, where she has worked in the last 17 years, and is unlikely to find employment in the media communications industry, a degree which she has recently obtained, saying her chances are slim to none as she cannot use a computer with both hands. Although she obtains support from ACC, the amount paid is by reference to her average wage over the past 52 weeks which is relatively minimal given she had been a student for the majority of that time. She is now on the waiting list for social housing.
[23] The victim speaks of the emotional impact this has had on her close family and friends. For a long time, she has thought she was somehow at fault. She now realises you are here today because of you, not her. Despite all of this, she hopes
you find the help and support you need so that something like this never happens again.
Pre sentence report
[24] The probation officer considered your views about the victim were distorted, deeply engrained and often conflicting. Despite your comments to the report writer that you were remorseful, the report writer considered you to be ambivalent and did not think you demonstrated acceptance of responsibility.
[25] You told the report writer that your explosive reactions, especially when under stress, came from having watched your father as a child.
[26] You spoke of your alcohol use in vague terms, stating “it’s not that bad, less than your average kiwi” but you were drinking every weekend and often to excess.
[27] You spoke of two prior self-harming incidents which occurred in 2005 while you were in custody but did not consider the self-inflicted stabbing which occurred in this offending to be a suicide attempt.
Psychologist report
[28] The clinical psychologist considered you present with features of Personality Disorder, showing aspects of narcissism, anti-sociality and, in particular, features of Borderline Personality Disorder (though the criteria for a specific personality disorder are not necessarily fully met). The traits you present include instability with self-image; emotional lability; interpersonal difficulties; anxiety; and difficulties with empathy. These features, the clinical psychologist said, explain (provide a context for), rather than necessarily absolve responsibility, for your offending.
[29] The report describes studies which have shown a link between BPD and homicidal behaviour where in the mind of the perpetrator, violence is considered the only conceivable resolution of his problems. The clinical psychologist considered this explains to some extent your self-reported experience, saying you became
increasingly obsessed with the victim, arguably seeing her as a source of your internal tension.
[30] In the clinical psychologist’s opinion, you do not so much present with any acute mental health needs but rather a personality style, with a propensity for emotional dysregulation. Whilst medication may play an important role in your recovery, the real solution involves your developing insight and coping skills.
Submissions
[31] Mr McColgan, for the Crown, says your offending squarely falls within band three of R v Taueki (a case which I will discuss in some detail later on) and I should adopt a starting point in the vicinity of 10 to 11 years’ imprisonment, although in oral submissions Mr McColgan referred to nine to 10 years.2
[32] Mr McColgan says the aggravating factors relevant to your offending are the extent of violence and use of a weapon; premeditation; the serious injury and extent of harm; and the level of your determination to kill the victim (evident from your statement, “see you in heaven”) which must be treated more seriously than an intention to cause grievous bodily harm.
[33] In Mr McColgan’s submission, I should uplift that starting point by 12 months to take into account your previous convictions, in order to mark what seems to be a complete failure on your part to rehabilitate.
[34] The Crown submits there are no mitigating factors personal to you, although having now seen the psychologist report, accepts a discount up to 10 per cent is appropriate.
[35] Mr McColgan asks that I impose a minimum period of imprisonment.
[36] Your counsel, Mr Goodwin, submits a starting point in the range of eight and
a half to nine years’ imprisonment is appropriate when looking at comparable cases.
In his submission, there was no extensive planning or sophistication in the offending.
2 R v Taueki [2005] 3 NZLR 372 (CA).
The extent of premeditation is limited to obtaining the kitchen knife after the victim arrived and hiding it in your jumper, he says. Whilst the victim sustained multiple wounds, there was no attack to head or neck area. There was no vulnerability attached to the victim, in Mr Goodwin’s submission. Finally, Mr Goodwin opposes the Crown’s submission on the level of determination on your part to kill the victim, saying any such intention must be inherent in the charge itself.
[37] In his submission, an uplift of six months, at most, is appropriate in respect of your previous convictions.
[38] In Mr Goodwin’s submission, the mitigating factors relating to you are your remorse; acceptance of responsibility for the attack; and your diminished level of culpability (supported by the matters raised in the psychological report which I consider below). Overall, he says a discount of 15 per cent is appropriate.
[39] A minimum period of imprisonment is not appropriate in light of the circumstances, which include an absence of a high degree of premeditation; the absence of a concerted attack to the head or neck area; the matters raised in the psychological report and your depression combined with your intoxication at the time of the offending, says Mr Goodwin.
Approach to sentencing
[40] In sentencing you today, Mr Walker, I must first establish the starting point. That requires me to look at the nature and extent of your offending. There is no guideline judgment for attempted murder but I will refer to R v Taueki, which sets out factors designed to assist Judges in sentencing offenders who have been charged with causing grievous bodily harm. That judgment has been commonly used in sentencing offenders who have been charged with attempted murder. I will also turn
to broadly similar3 cases to ensure my starting point is in line with what has been
adopted in similar cases. Secondly, I must adjust the starting point to reflect your personal circumstances.
3 I adopt Lang J’s comment in R v O’Kane HC Dunedin CRI-2009-002-190, 2 April 2009 at [14]: “I say “broadly similar” because no two cases are every exactly the same” – particularly so in attempted murder cases as crimes of attempted murder differ greatly in the circumstances in which they occur.
[41] The relevant purposes of sentencing include the need to hold you accountable for the harm you have done to the community by your offending; to promote in you a sense of responsibility for, and acknowledgement of, the harm; to have regard to the interests of the victim; to denounce your conduct and deter others; to protect the community; and to assist in your rehabilitation and reintegration.
[42] I must take into account the gravity of the offending; the seriousness of the type of offence; consistency with comparable cases and the need to impose the least restrictive outcome appropriate in the circumstances.
Setting the starting point
[43] The case of R v Taueki set out a list of aggravating features which contributes to the seriousness of the conduct and criminality involved in a GBH offence. The Court defined three separate bands of offending. Band three, which calls for a starting point of between nine and 14 years’ imprisonment, applies to the most serious cases. Cases in band three will involve three or more of a number of characteristics. Your case falls squarely within this band. The matters contributing to the seriousness of the offending are as follows.
[44] The attack was frenzied and the extent of violence was egregious. You used a sharp knife, about 12 cm in length, to stab the victim repeatedly. The depth of the knife went fully into the victim’s chest. As a result of the forced you applied on the victim, the knife broke into three pieces and the point of the knife was left lodged in her shoulder. When you realised the knife was broken, you went back into the flat to get another knife, 20 cm long. I accept you did not use this knife on the victim although you showed it to her.
[45] I do not accept the degree of premeditation is as limited as the defence contends. You accept that you deliberately lured the victim to your house and set a test for her. You said you would not have stabbed the victim if she had agreed to stay with you that night. Sixteen days before the offending, you had gone to the victim’s place of work with a knife. You also told your then girlfriend that you wanted to kill the victim. She found a knife under the seat in the car which was the
same knife used to stab the victim. All of these factors demonstrate that your offending was not spontaneous; it was both deliberate and planned.
[46] The injuries suffered by the victim were very serious. The wound to the back
of the victim’s chest was at a depth of between 10 to 12 cm. She sustained at least
15 stab wounds; eight of which were to her left arm, causing significant and ongoing nerve damage which has resulted in a loss of feeling in the arm. The physical and emotional impact on the victim is eloquently described in the victim impact statement to which I have referred.
[47] I reject the defence submission that the offending was less serious because there was no attack to the head, noting the comment in Taueki that attacks on the head of a victim can have particularly serious consequences.4 Just because there was no attack to the head does not mean the offending did not have particularly serious consequences. The knife went through the skin on the victim’s back and through the lung and into the heart. Dr Haydock’s evidence was that even half a centimetre further could have opened the pumping chamber to the heart and it could have been immediately fatal.
[48] I also reject the defence submission that the victim was not particularly vulnerable. You grabbed her close so she was unable to move and stabbed her in the back. She then went to the ground and was in the foetal position and you were crouched over her, the witnesses saying they could hear the thuds as you stabbed her, your arm going like a piston, one witness said. The victim was defenceless.
[49] I accept the Crown submission that your level of determination to kill the victim is an aggravating factor as it distinguishes the nature of your offending – being an attempt to kill – from Taueki, a tariff decision for cases concerning GBH offending. This point demonstrates why a cautious approach is required when applying Taueki by analogy. Care must be taken to account for the different mental
element (that is, murderous intent) in an attempted murder charge.
4 At [31(e)].
[50] I reject the defence submissions that any discount for your psychological condition should be made at the stage of setting the starting point. That is a matter that is personal to you and ought to therefore be considered as an adjustment to the starting point, made at the second stage in sentencing.5
[51] I have considered the cases of R v JRF,6 R v O’Kane 7 and R v Kahn,8 as well as those on which your counsel relies, R v Masoe and R v Pengelly,9 and R v Fotuaika.10
[52] Given the circumstances and my analysis of the cases, I consider a starting
point of 10 years’ imprisonment is appropriate.
5 This view is consistent with my reading of the Court of Appeal’s decision in Khan CA83/02, 4
December 2002 at [23].
6 In R v JRF HC Dunedin CRI-2011-012-2837, 30 September 2011, French J said a starting point of 11 to 12 years’ imprisonment would have ordinarily been appropriate though a discount for provocation had reduced the starting point to 10 years’ imprisonment. That case is more serious because there were two weapons used; the second of which was an axe used to strike the victim
multiple times around the head. The victim’s five year old son witnessed his mother’s attack and
believed she was dead. Nevertheless, there are similarities; including the fact that the offending was a prolonged attack and that Mr Walker left the scene without getting help (but instead drove himself to the hospital to seek help in relation to his own self-inflicted wounds).
7 R v O’Kane, above n 3, a starting point of 11.5 years’ imprisonment was adopted. Similar to the
circumstances of this case, the defendant lured the victim into seeing him under a false pretence. The defence says this case can be distinguished on the basis that there was a significant degree of premeditation involved, the defendant having selected the knife before entering the victim’s house. However, the element of selecting a weapon, if that is to be an aggravating feature, is equally relevant here. Mr Walker attacked the victim with the same knife as the one found in his then girlfriend’s car, having told his then girlfriend that he wanted to kill the victim.
8 R v Kahn, above n 6. A starting point of 10 years’ imprisonment was adopted and upheld on appeal. I accept Mr Goodwin’s submission that the circumstances of that case are grave given
the attack occurred in front of children but I am not convinced this necessarily makes the offending more serious. Unlike the victim in that case, Mr Walker’s victim was not able to escape and she was defenceless.
9 In R v Masoe HC Wellington CRI-2006-091-352, 15 September 2006 and R v Pengelly [2013]
NZHC 527, a starting point of nine years’ imprisonment and nine and a half years’ imprisonment respectively were adopted. However I consider this case to be more serious as the element of vulnerability was not present in those cases; there was no pretext or deception to lure the victim; and, in both cases, there was an element of spontaneity or emotional outrage which is distinct to the level of premeditation which I have concluded was present in this case.
10 I consider the case of R v Fotuaika HC Wanganui CRI-2008-083-73, 22 October 2008, where a
starting point of nine years’ imprisonment was adopted, is distinguishable given the Judge’s explicit comment that a markedly lower starting point was adopted because of elements of diminished responsibility; provocation and victim forgiveness. What is more, in that case, the defendant ran for help and sought to comfort the victim when she told him she was dying. Mr Walker, however, took the victim’s keys from her purse and drove away, leaving her lying on the ground.
Adjusting the starting point
[53] Turning to your personal circumstances, Mr Walker, I start with your previous convictions. Your counsel, correctly, submits I should be careful not to punish you twice for your previous offending. However, the list of your previous convictions is lengthy and, relevantly, it includes at least nine convictions for violent offending. These convictions demonstrate that your violent offending is not out of character and the violence has escalated. I uplift the starting point by six months.
[54] I reject the submission that you have demonstrated genuine remorse. Mr Goodwin submits on your behalf that you showed immediate remorse by screaming twice, “What have I done?” However, just prior to that, you told the victim you would see her in heaven. The psychological report speaks of your tendency to see yourself as the victim and this behaviour can be seen as reflective of that. Mr Goodwin also says you have demonstrated remorse since the offending given what is stated in the pre-sentence report. You have also written me a letter today, expressing the deepest regret and apologies. The essence of the report on this point, however, is that you appeared ambivalent in your attitude towards the offending, with no real acceptance of responsibility. The psychologist said he had “some affinity” with that opinion. More recently, in your interview this month with the psychologist, you continued to demonstrate some residual resentment towards the victim and said the prosecution misrepresented you as being manipulative when it was the victim, your ex-girlfriend, who was the manipulative one. I, therefore, attach limited weight to the letter you have written me today. Your failure to show insight and your willingness to blame others suggests you have not taken responsibility for the offending, which must be inherent in any discount for
remorse.11 My conclusion is that you are not entitled to any discount for remorse.
[55] Mr Goodwin says you took steps during the trial to shorten the proceedings by accepting responsibility for the assault on the victim, leaving the real issue to be the question of intent. I attach no weight to that, however, given the evidence
against you was so strong.
11 The Supreme Court in Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 has stated that genuine remorse must be demonstrated in a practical and material way.
[56] Turning to your psychological state, Mr Walker, I accept that you are entitled to some discount in that regard.
[57] However, the psychological report is not overwhelmingly supportive. In the report, the clinical psychologist makes clear that, in his opinion, your personality traits help explain the offending rather than prove a causative link between the lack of capacity or culpability and the offending.
[58] The more compelling evidence, in my view, is the evidence of your depression at the time and the fact that you reported to the St Lukes Community Mental Health Centre (CMHC) on the day of (and before) the offending stating that you needed hospitalisation. Two weeks earlier, you were referred to that clinic by the Police following a text message you sent to the victim stating you had suicidal tendencies. You were assessed by two nurses at the clinic; you said you were not coping because, among other anxieties, you still loved your ex-girlfriend and you were asked by your then girlfriend to move out. You said you had thoughts to use a knife but denied that you would have harmed her or yourself. The nurses discussed the options that were available to you, stating that hospitalisation was not one of them. You were encouraged to utilise the community active service, and some coping strategies were explained to you.
[59] I agree this is evidence12 of your psychological state at the time of the offending which moderates to a limited degree your culpability.13
[60] It is also relevant to consider whether your psychological condition will render a sentence of imprisonment more subjectively punitive.14 Although I am not convinced your personal circumstances would render the term of imprisonment
disproportionately severe, I do bear in mind the clinical psychologist’s comment that
12 In Nelson v R [2014] NZCA 121, the Court of Appeal stated there should be evidence before the sentencing Judge directed to the causative impact of the offender’s mental or psychological health on the offending to allow the assessment to be made.
13 The Court of Appeal in E (CA689/2010) v R [2010] NZCA 13 at [68] stated that a mental disorder falling short of exculpating insanity may be capable of mitigating a sentence either because: if causative of the offending, it moderates the culpability; it renders less appropriate or more subjectively punitive a sentence of imprisonment; or because of a combination of those reasons.
14 Sentencing Act 2002, s 8(h).
your psychological rehabilitation will involve a long-term path to recovery beyond what may be available in the prison facilities.
[61] In the circumstances, I allow a discount of 10 per cent for your psychological condition.
[62] That brings your end sentence to nine years, six months’ imprisonment.
Minimum period of imprisonment (MPI)
[63] I now turn to consider whether a minimum period of imprisonment should be imposed. The minimum period of imprisonment refers to the minimum amount of time you will be kept in prison before the Parole Board can consider if you are suitable for monitored release into the community.
[64] Your counsel submits there is no presumption in favour of an MPI in cases involving serious violent offending. The Court of Appeal in Taueki stated that, in cases of serious violence, and where protection of the community from the offending may well be a relevant factor, it can be expected that minimum periods of
imprisonment will not be rare or even uncommon.15
[65] Mr Goodwin also submits that an MPI is not appropriate when reference to comparable cases is made. He has referred to a number of cases where the court has either declined to impose an MPI or the Crown has not or does not appear to have sought an MPI. However, the imposition of an MPI is determined on a case-by-case analysis. He also submits that, given your complex rehabilitative needs, an MPI would be counterproductive and the Parole Board is better placed to assess the position.
[66] The decision whether or not to impose an MPI turns on the context of the offending which includes the conduct of the defendant before and after the offence.16
As I have stated, the offending was premeditated. You do not appear to demonstrate
genuine remorse. I note your comment to the clinical psychologist that the victim
15 At [57].
16 R v Martin CA358/03, 1 March 2004.
had insensitively brought someone, being a male whom you thought was likely to be a partner of hers, into the court room deliberately to unsettle you when you gave evidence. Not only does that demonstrate your self-centred views but it also shows that you have failed to acknowledge or take responsibility for the nature and seriousness of your offending.17 Also of relevance is your comment that you were still “angry…pissed off” with the victim. The need to denounce this type of domestic violence offending is high.
[67] These comments demonstrate the one-third period provided for in s 84(1) of the Parole Act is insufficient for the purposes of accountability, denunciation and deterrence.18 I also look to the pre-sentence report which assesses you at a high risk of re-offending. The evidence showed you to be manipulative and controlling and suggests you are a potential danger to any female with whom you are in a relationship. Your previous convictions for violent offending are, in the
circumstances, also relevant to the extent they demonstrate the need to protect you from the community.
[68] I accept that the prospects for rehabilitation point toward a decision not to impose a minimum term. The clinical psychologist is of the view that you would benefit from a Dialectical Behaviour Therapy approach to help you develop skills to reduce instances of turbulent emotions. He says, a prison environment is likely to present minimal opportunity for such input; and is unlikely to provide you with intensive, long-term and proactive input which you so clearly need.
[69] The Court of Appeal has considered that an offender’s rehabilitative efforts may justify a decision not to impose a minimum term and may be an alternative to a reduction in the length of the sentence itself.19 In this case, your rehabilitative prospects have been a factor in mitigation.
[70] I attach no weight to Mr Goodwin’s submission on your level of intoxication
on the day of the offending. The voluntary consumption of alcohol must not be
17 The Court in Taueki, above n 2, at [55] stated that the principles in s 8 and the aggravating and mitigating factors in s 9 are applicable only to the extent they are relevant to the four purposes in s 86(2).
18 Sentencing Act 2002, s 86(2).
19 Christofides v R [2011] NZCA 126 at [24].
taken into account by the court as a factor in mitigation.20 As stated in Taueki, the factors in s 9 are relevant to the four purposes in s 86(2); meaning the voluntary use of alcohol cannot be of assistance to you in considering the imposition of a minimum sentence.
[71] In my assessment, a minimum period of imprisonment should be imposed. I
impose half of the full term of your sentence.
Result
[72] Accordingly, I sentence you to a period of imprisonment of nine years and six months, of which you must serve a minimum term of four years and nine months’
imprisonment.
Thomas J
20 Sentencing Act 2002, s 9(3).
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