R v Wilkie-Morris

[2016] NZHC 259

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-096-4078 [2016] NZHC 259

THE QUEEN

v

DARRIN JOHN WILKIE-MORRIS

Hearing:	23 February 2016
Counsel:	P K Feltham for Crown C W J Stevenson for Defendant
Sentence:	23 February 2016

SENTENCING NOTES OF CLIFFORD J

[1]      Mr Wilkie-Morris, you  appear for sentencing having pleaded guilty to:

(a)       Injuring Matthew Stevens with intent to cause grievous bodily harm;1

and

(b)      Being an accessory after the fact to the murder of Matthew Stevens.2 [2]       Those offences carry maximum penalties of ten and seven years respectively. [3]    Those charges reflect what the Crown considers to be the proper description,

the characterisation of your responsibility, your culpability, that is your criminal

1      Crimes Act, s 189(1).

2      Crimes Act, s 176.

R v WILKIE-MORRIS [2016] NZHC 259 [23 February 2016]

responsibility, for the death of Matthew Stevens.   You had initially been charged, along with Mr Stuart Wilton, with murder.   Mr Wilton has pleaded guilty to that charge.

[4]      I provided you with a sentencing indication on 16 December 2015.   Your guilty plea was entered at that hearing.  I now sentence you in the terms I indicated.

The offending

[5]      Mr  Stevens,  the  deceased,  was  known  to  you  and  your  co-defendants

Mr Wilton and Ms Crook. You and Ms Crook are partners.

[6]      The summary of facts which forms the basis of your guilty plea, and which I referred to at your sentencing indication but which I refer to here again today in public,  records that on 27 November 2014 you and Ms Crook were at home with her children.   Ms Crook lured Mr Stevens to that address, falsely telling him that you were out of town and that she was alone.

[7]      You and Mr Wilton left the property.   You arranged to arrive back shortly after Mr Stevens arrived.  You and Mr Wilton went upstairs to Ms Crook’s bedroom where she and Mr Stevens were drinking and socialising.

[8]      You and Mr Wilton confronted Mr Stevens.  You struck Mr Stevens with a hammer on the head and the knee.  Mr Wilton lunged at Mr Stevens with a knife and stabbed him three times, twice in the chest and once in the lower back.  Mr Stevens died in the bedroom, as a result of those stab wounds.  The charges you have pleaded guilty to reflect the Crown’s acceptance that you are not criminally responsible for Mr Stevens’ death.

[9]      You, Mr Wilton and Ms Crook then took Mr Stevens’ body and placed it in the back of a van.   You all cleaned up the areas of the house where Mr Stevens’ blood had been spilled.

[10]     With you in the front passenger seat, Ms Crook drove the van to an isolated point  north  of  the  summit  of  Paekakariki  Hill.    Mr  Wilton  followed,  driving

Mr Stevens’ car.  The three of you rolled Mr Stevens’ body off the steep face of the

adjacent cliff. You pushed the car off after him.

[11]     You all then returned to the address to continue cleaning, disposing of the knife and washing the towels you had used.

[12]     The pathologist’s report indicates that your blows with the hammer caused cuts and contusions to Mr Stevens’ head and bruising and a puncture wound below his right knee.

[13]     I have read the victim impact statements made by Mr Stevens’ parents, David and Christine, his sister Emma and his first cousin, Sarah Yates.   Completely understandably, Mr Stevens’ violent and pointless death, and the callous way you dealt with him afterwards, has caused enormous sadness and trauma to his parents, his sister and his wider family.   As I read the report of your probation officer, it would appear that you have little if any remorse for your actions.  I hope, perhaps somewhat optimistically, that over time you will think about what happened that day and show some human remorse and understanding for the victims of your actions.  I know you have not had an easy life but these actions were very, very sad indeed.

Approach to sentencing

[14]     I received written submissions from the Crown and from Mr Stevenson for you, Mr Wilkie-Morris, for the sentence indication hearing.  Counsel have told me this morning that there nothing they need to add to that.

[15]     As you heard me say to you before, I agree with the submissions I have received from both the Crown and the defence that the correct approach to this sentencing is to treat the charge of injuring with intent to cause grievous bodily harm as the lead charge.  I will then adjust that sentence upwards to reflect the charge of accessory after the fact to murder, and indicate a concurrent sentence accordingly.

[16]     I must first indicate a starting point for the grievous bodily harm offending.

[17]     The Court of Appeal has confirmed in a case called Nuku v R3 that guidelines established in another case called R v Taueki,4 appropriately adjusted, are applicable in relation to this offending.

[18]     To make those adjustments I must reflect the principles of the guidelines.  I must also remember that the placement of offending within the bands identified in Taueki  is  not  a  mechanical  exercise.    Rather,  what  is  required  is  an  overall assessment of the criminality of the offending.

[19]     Placement within these bands is determined by what are known, or with reference to, aggravating features.   The Crown submits the following aggravating features are present:

(a)       Premeditation:    Mr    Stevens    was   lured    to   the    address   for   a confrontation.

(b)      Use of a hammer: the weapon; (c)        An attack to the head; and

(d)      Multiple attackers:  Others were present, particularly Mr Wilton.

[20]     Those four aggravating features, the Crown says, combine in a particularly grave way.  The Crown submits the offending falls in the middle to high end of an adapted Band Two, and that a starting point of four and a half years for that charge is appropriate.

[21]     For you, Mr Stevenson says that the only aggravating factors present were the use of the weapon and premeditation to a limited extent.  That argument is that the offending did not involve multiple attackers, because the assault by Mr Wilton came afterwards, and separately.  The suggestion is that the offending should be placed at a

less serious point than indicated by the Crown.

3      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

4      R v Taueki R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769.

[22]     In my view the attack was clearly premeditated:  Mr Stevens was lured to the address for the purpose of a confrontation, you and Mr Wilton had weapons with you, and had previously made threats to Mr Stevens to the extent he was afraid to meet with you.  It is clear that this attack involved a weapon, and that there was a blow to the head.   Mr Stevenson correctly says that the use of the weapon and

attacking are not separate aggravating features.5     Even so, the combination of an

attack to the head, with a weapon, is seriously aggravating.   The offending did involve multiple attackers.  Mr Wilton’s actions cannot be regarded as irrelevant to the circumstances as a whole.  It was, in reality, a two-on-one situation.

[23]     The presence of three aggravating factors would put the offending in band two recognising that alone each of those aggravating features is not of the most serious kind.  On the basis of the charges now faced, the relevant consequences are the injuries caused by the hammer blows.

[24]     Taking into account comparable cases,   and the guidance of the Court of Appeal, I consider that the appropriate starting point for this offending is four and a half years’ imprisonment.

Accessory after the fact to murder

[25]     I turn now to the charge of accessory after the fact.  The Crown suggests a starting point of two and a half years’ on its own would recognise that offending, and that an uplift of two years, that is two years from the four and a half years I have already fixed, would be appropriate.

[26]     For you, Mr Stevenson suggests an additional 18 months.

[27]     By my assessment, the extent of involvement and assistance in murder as reflected by the charge of accessory after the fact was significant.  You travelled with Mr Stevens’ body to dispose of it.  You helped dispose of evidence, by cleaning the murder scene and disposing of weapons.   Those actions were intended to avoid detection and frustrate any investigation.  In my view, a discrete sentence of two and

a half years would appropriately reflect that offending .

5      Flavell v R [2011] NZCA 361 at [22].

[28]     Adjusting that, given the sentence already imposed on you, I consider that an additional two years imprisonment is called for.

Uplift for previous convictions

[29]    I turn now to the personal aggravating feature of your previous violent offending.  Of particular note, you were convicted in 2010 for aggravated robbery and  wounding  with  intent  to  cause  grievous  bodily harm.6      In  2007  you  were convicted for kidnapping, aggravated robbery and common assault.   Although somewhat dated, those convictions indicate a pattern of violent offending.   In my view an uplift of three months is appropriate.

[30]     That results in a sentence, before credit for your guilty plea, of six years and

nine months’ imprisonment.

Guilty plea

[31]     A full discount of 25 per cent is available in light of your guilty plea.  There are no other personal mitigating factors.

Conclusion

[32]     From six years and nine months, a discount of 25 per cent makes the end sentence one of five years and one months’ imprisonment.  A concurrent sentence of two and a half years for the accessory charge is appropriate.

[33]     Mr Wilkie-Morris, I therefore sentence you to a term of imprisonment of five years and one month on the charge of injuring Mr Stevens with intent, and a concurrent sentence of two years and six months on the charge of being an accessory after the fact to the murder of Mr Stevens.  And I remind you of the warnings that have already been given to you as regards the consequences of any future like violent

offending.

6      Morris v R [2010] NZCA 364.

[34]     Mr Wilkie-Morris you may stand down.

“Clifford J”

Solicitors:

Crown Solicitor, Wellington