R v Walker
[2019] NZHC 1906
•1 August 2019
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2018-019-4429
[2019] NZHC 1906
THE QUEEN v
SIMON PETER WALKER
Hearing: 1 August 2019 Appearances:
J N Foster for Crown
K L Tustin for Defendant
Sentencing:
1 August 2019
SENTENCING REMARKS OF PETERS J
Solicitors: Almao Douch, Crown Solicitor, Hamilton Counsel: K L Tustin, Hamilton
R v WALKER [2019] NZHC 1906 [1 August 2019]
Introduction
[1] Mr Walker, I am sentencing you for the kidnapping and manslaughter of Mitchell Paterson on 12 July 2018.1 I am also sentencing you on one charge each of conspiring to defeat justice and misconduct in respect of human remains, these last two charges arising from events after Mr Paterson’s death.2
[2] You pleaded guilty to these charges on 21 June 2019. Justice Lang gave you what we refer to as the “first strike” warning at the time so I need not repeat that.3
[3] I shall start today by setting out the events that led to Mr Paterson’s death. The jury which heard the case recently against Leon Wilson and Christopher Smith may have a quite different view of the facts, but I am sentencing you on the basis of the summary that was before the Court at the time you pleaded guilty. Once I have summarised the facts, I shall get on with the sentencing itself.
[4] Before I go any further I want to assure everyone in the courtroom, and particularly Mr Paterson’s parents and Ms Taitoko, that everyone involved in this sentencing process has done a good job in informing me of all the relevant matters and cases. It has been a very thorough and comprehensive exercise by them and I have read everything they have given me, I have read the pre-sentence report, I have paid careful attention to their submissions and also had the benefit of hearing your victim impact statements this morning. So I assure you that the appropriate amount of work and thought has gone into this.
Facts
[5] Mr Walker, Mr Paterson’s death and its aftermath involved many people playing different roles. You were involved in every part of it.
[6] In the early hours of 12 July 2018, you and several others were at Wilson’s house, he being the president of the local chapter of the Nomads gang. Apparently
1 Crimes Act 1961, ss 157, 160, 171, 178, and 209. Maximum penalties life imprisonment and 14 years’ imprisonment, respectively.
2 Sections 116 and 150(b). Maximum penalties seven and two years’ imprisonment, respectively.
3 Sentencing Act 2003, s 86B(1).
Mr Paterson had been “bad mouthing” Wilson, and Wilson directed that Mr Paterson should be found and brought to Wilson’s house.
[7] You, and two others – Dylan Boyle and Chloe Kerridge – drove off to get Mr Paterson, learnt that he was in Whitiora, relayed this to Wilson, and then went to the Whitiora address. As I understand it, you were a “prospect” for Wilson, so quite possibly keen to impress him.
[8] You lured Mr Paterson outside his house on the pretence of a drug deal. Although Mr Paterson was suspicious at first, ultimately he ended up, very unwillingly, in the back seat of the car with you. As Ms Foster, for the Crown, submitted you knew full well that Mr Paterson would not go with you willingly and that some kind of ruse would be required to get him to come out of his house.
[9]Wilson, Smith and Grant Wickens then arrived in another car.
[10] Wilson told you, Boyle and Kerridge to take Mr Paterson back to his, that is Wilson’s, house and Wilson, Smith and Wickens followed in another car.
[11] Mr Paterson was resisting as vigorously as he could. You had one arm around his neck and the other around his head to quell that resistance. Despite this, Mr Paterson managed to smash the rear window of the car with his feet. Ms Tustin tells me in her submissions the car had only gone 800 metres by that stage.
[12] When that happened, you told Boyle to stop the car. Smith then got into the back seat with you and Mr Paterson, and apparently he sat on Mr Paterson’s legs while you kept him in a headlock for the rest of the trip back to Wilson’s house, which again Ms Tustin tells me would have taken somewhere upwards of five minutes.
[13]Mr Paterson lost consciousness some time during the trip.
[14] On arrival at Wilson’s, Mr Paterson was unresponsive, blue in the face, and a small amount of blood was visible on his lips. You tried to wake Mr Paterson and then tried CPR when you realised he was not breathing. An expert pathologist has
determined that Mr Paterson died because of neck compression and that boils down to your headlock.
[15] What needed to happen at that point was an urgent call to 111. Instead you, Wilson and several others discussed how you would dispose of Mr Paterson’s body. It was agreed that you, Wickens and Kyra Betteridge would take the body away in a car, and then set fire to the car to destroy evidence of the killing. Arrangements were also made to clean Boyle’s car and to fix the broken window.
[16] You left with the body at about 6.30 am. Wickens and Betteridge followed in another vehicle and bought petrol. After spending the day driving around you and Betteridge decided not to burn out the car. Ms Tustin tells me that the explanation Betteridge gave for this change was because it would deprive the Paterson family of the body. Wickens did not want to be a party to changing any “Wilson endorsed” plan and he left at that point.
[17] Early the following morning, so 13 July 2018, you still had the body. You asked another associate, James Green, to help, which he did. The new plan became to put Mr Paterson’s body in McLaren Falls in the Kaimai Ranges. The three of you arrived there at about 4:00 am on 13 July 2018. You and Green dropped Mr Paterson’s body into the water, abandoned Wilson’s vehicle nearby and then drove away in Green’s vehicle.
[18]Members of the public found Mr Paterson’s body later that morning.
[19] All in all, eight people have been convicted of offences in relation to Mr Paterson’s kidnapping, death, and the disposal of his body.
[20] Following a trial which finished last week, Wilson and Smith were found guilty of Mr Paterson’s manslaughter. So that makes three of you directly responsible for his death.
[21] You, Wilson, Smith, Wickens, Boyle and Kerridge have been convicted of his kidnapping.
[22] You, Wilson, Kerridge, Wickens, Boyle, Betteridge and Green have been convicted of the conspiracy charge, and you, Betteridge and Green of mistreating Mr Paterson’s body.
[23] By the end of today, the only people left to be sentenced will be Wilson, Smith and Kerridge.
[24] Whatever Mr Paterson may have done, nothing could possibly justify anyone, let alone several grown men, setting out like vigilantes to kidnap him and take him to Wilson’s address. I accept it was not part of the plan to kill Mr Paterson, but even on the best scenario it was never going to end well for Mr Paterson. As it was, you did kill him and the jury plainly thought Wilson and Smith were also responsible for his death.
Victim impact statements
[25] Everyone in the Court today has had the benefit of hearing the victim impact statements of Mr Paterson’s mother and father, Mr Craig Paterson and Mrs Valerie Paterson, and Ms Philippa Taitoko, the mother of Mr Paterson’s seven-year-old daughter.
[26] Mr Paterson was his parents’ only and much loved child. As their statements make clear, they do not ever expect to recover from his death. Both are devastated and their lives have changed forever. Everyone in the courtroom will be able to understand that.
[27] Mr Paterson was devoted to his young daughter, and she plainly adored him. Ms Taitoko has reported how profoundly her daughter has been affected by her father’s death. She has become anxious to leave her mother’s side and asks for her father constantly. The harsh reality is she will not have her doting father to support her as she grows up.
Pre-sentence report
[28]I have read the very comprehensive report prepared by Corrections.
[29] You were 36 at the time of the offending. The report states that the events that night were the result of three long-standing problems. The first is your use of methamphetamine and other drugs. You had smoked methamphetamine that night. The second is you have a tendency to resort to violence. You have been convicted for violent offending on nine other occasions. The third is your gang association, which I understand you have now severed. The report writer says your risk of re-offending will diminish if you address all of these problems but that it will not if you fail to do so.
[30] The report writer states that you have been shocked by Mr Paterson’s death and that I can accept. To be fair, as Ms Tustin pointed out, you have never denied your role in choking or strangling Mr Paterson, and the report writer believes you are genuinely remorseful.
Sentencing process
[31] The first step in the sentencing process is to establish what we refer to as the starting point. That serves as a bench mark for offending of the type you committed. It is a bench mark that would apply to anyone who acted in a way similar to you. It looks purely at the offending and takes no account of your personal circumstances.
[32] The second step of the process is to take account of matters that relate to you personally and which may require me to increase or reduce the period of imprisonment established by the starting point.
[33] Accordingly, everyone in the courtroom needs to bear with me while I discuss the two stages and decide on Mr Walker’s end sentence.
Principles and purposes of sentencing
[34] I will come onto that first stage now which is to fix the starting point and, in doing that, I need to hold you accountable for the loss you have caused – to Mr Paterson, to his family, and to the community generally. I must impose a sentence that denounces your behaviour, and which deters you, and others, from similar
offending in the future. I am also required to treat you consistently with others, and to impose the least restrictive outcome appropriate in the circumstances.
Crown submissions
[35] Ms Foster submits that I should fix a starting point just on the manslaughter and kidnapping charges of between nine and 10 years’ imprisonment.4 She submits that this would reflect the premeditation involved in the kidnapping, the nature of the act causing death, and the fact that Mr Paterson’s death resulted from the activities of an organised criminal group.
[36] Ms Foster then submits that I should increase that by one year to reflect the charges of conspiring to defeat justice and mistreating human remains. This would bring the starting point to between 10 and 11 years’ imprisonment.5
Defence submissions
[37] Ms Tustin submits that I should adopt a single starting point for all four charges. By reference to other cases, Ms Tustin submits that an appropriate starting point would be between seven years, six months and nine years’ imprisonment.6
[38] Ms Tustin says your actions were a spontaneous attempt to stop Mr Paterson from struggling, not a premeditated act of violence, that there was no particular brutality in the offending, that you were not armed, and you were not the overall mastermind.
4 R v Keogan CA266/93, 29 September 1993; R v Curran Tauranga CRI-2005-070-765, 30 June 2006; R v Taueki [2005] 3 NZLR 372 (CA); R v Fernyhough [2014] NZHC 2298; R v Davis [2015] NZHC 3267; R v Corbin [2016] NZHC 2570; R v Harrington [2017] NZHC 170; R v Hansen [2017] NZHC 449; R v Paleaaesina [2017] NZHC 1038; R v Brown [2017] NZHC 1241; R v Samson [2017] NZHC 1632; R v Taunga [2017] NZHC 1680; and R v Liev [2017] NZHC 2253.
5 R v Raroa [1987] 2 NZLR 486 (CA); R v Leach HC Wellington CRI-2006-085-4461, 27 October 2006; R v Everitt HC Whangarei CRI-2006-088-3601, 28 February 2007; R v Duff HC Rotorua CRI-2009-063-6473, 9 December 2010; Miller v R [2014] NZCA 382 at [11]; R v Boskell [2015] NZHC 286; R v Crook [2016] NZHC 215; R v Te Kani [2018] NZHC 3134; and R v Scanlon [2018] NZHC 3376.
6 R v Pira HC Rotorua CRI-2006-063-329, 13 December 2006; R v Riley [2007] NZCA 122; Pokai v R [2014] NZCA 356; R v Ormsby [2016] NZHC 2220; R v Taunga, above n 4; and Liev v R [2019] NZCA 242.
Other cases
[39] I have considered the many cases to which counsel have referred me in respect of all of the charges of which you have been convicted and I also have the assistance of the sentencing notes for Boyle, Betteridge and Green.7
[40] The manslaughter charge is the most serious. Sensibly, counsel have referred me to cases where death has resulted from a single act and, particularly, strangulation. Some of these cases have additional features such as a sustained fight in advance and need to be read with that in mind.
[41] R v Taunga was a single charge of manslaughter.8 The victim and Mr Taunga were friends. They got into a fight. Mr Taunga punched the victim around the head several times, and then strangled him for up to five minutes. He was much stronger than the victim. I was the Judge in that case and adopted a starting point of eight years’ imprisonment.
[42] Also in that case I referred to others in which an offender had strangled their victim causing death.9
[43] In R v Davis, the defendant and the victim had an arranged fight.10 The defendant put the victim in a headlock twice and briefly. The victim died, although his many health conditions contributed to his death. The Judge adopted a starting point of four and a half years.
[44] In R v Fernyhough, the defendant put the victim in a headlock for up to 40 seconds and the victim died.11 The Judge adopted a starting point of six years.
[45] In R v Harrington, after a fight, the defendant put the victim in a “choke” hold for 20 seconds.12 The victim collapsed. The defendant then punched and kicked the
7 R v Boyle [2019] NZHC 1584; R v Betteridge [2019] NZHC 1480; and R v Green [2019] NZHC 1481.
8 R v Taunga, above n 4.
9 At [33] to [39].
10 R v Davis above n 4.
11 R v Fernyhough above n 4.
12 R v Harrington above n 4.
victim several times to the head and back. The Judge adopted a starting point of seven years.
[46] Having regard to those cases, if I were sentencing you just on the manslaughter charge, which I am not, but if I were I would adopt a starting point of at least five years. However, the manslaughter is aggravated by the fact that Mr Paterson was killed in the course of other serious offending, being a kidnapping in which you played a central and willing role. You were instrumental in finding out where Mr Paterson was, and getting him into the back of that car.
[47] Boyle had a lesser role in the kidnapping than you, but he drove the car. His starting point for the kidnapping charge was two years, six months.
[48] If I were sentencing you for the kidnapping alone, just by reference to Boyle, I would give you at least three years.
[49] Then there is the conspiracy and mistreating of the body which you were also involved in, from start to finish. Attempting to stop the detection of homicide is serious offending. If you wanted to make sure the body was in fit state to return to the Paterson family, you should have called the police. Betteridge was also fully involved and her starting point on these two charges was two years, six months. The starting point for Green, who you involved fairly late in the piece, was two years, three months.
[50] Taking all of these matters into account, I propose to adopt a starting point of nine years on all the offending. If I break that down, it is five years on the manslaughter, three on the kidnapping and one year for the other two charges.
Aggravating and mitigating factors personal to you
[51] This brings me to the second stage which is to take account of matters personal to you.
[52] Counsel accept, and I agree, that I should uplift the starting point by six months to take account of the most serious of your prior violent offending. This is not to punish you twice for earlier offending but because previous sentences of imprisonment
have not stopped you from the violent offending that occurred in this case, being the manslaughter.
[53]This brings the sentence to nine years, six months.
[54] Crown counsel submits that I should also uplift for the fact that you offended whilst subject to release conditions but I am not persuaded that is necessary in this case.
[55] There are no particular mitigating factors personal to you. I acknowledge that you seem to have been the only one who tried CPR or to revive Mr Paterson but, as I have said, if you wanted to do that, it needed to be evidenced by a call to 111.
[56] I must reduce the sentence to take account of your guilty pleas, which were entered as soon as the Crown agreed to substitute a manslaughter charge in place of the murder charge that you initially faced. I shall reduce the sentence by 25 per cent to reflect that. This will bring your total sentence to seven years’ imprisonment.
Sentence
[57]Mr Walker, please stand:
(a)for the manslaughter of Mr Mitchell Paterson, you are sentenced to seven years’ imprisonment;
(b)on the charge of kidnapping, you are sentenced to three years’ imprisonment;
(c)on the charge of conspiring to defeat justice, you are sentenced to one year’s imprisonment; and
(d)on the charge of misconduct in respect of human remains, you are sentenced to one year’s imprisonment.
[58] The sentences on the kidnapping, the conspiring and the misconduct charges are each to be served concurrently with the sentence on the manslaughter charge. Accordingly, your effective sentence is seven years’ imprisonment.
[59]Please stand down.
Peters J
20
0