R v Williams HC Auckland CRI 2008-092-13286
[2010] NZHC 890
•13 May 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2008-092-013286
THE QUEEN
v
NATHAN WILLIAMS DANIEL TUMATA
Appearances: R Burns & B Finn for the Crown
M Dyhrberg for Williams
S Tait for Tumata
Sentence: 13 May 2010
SENTENCING NOTES OF PRIESTLEY J R v Williams and Tumata
Counsel:
R Burns & B Finn, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: 09 336 7629
M Dyhrberg, P O Box 47867 Ponsonby, Auckland 1144. Fax: 09 360 8434S Tait, P O Box 76538, Manukau City 2241. Fax: 09 263 0458
R V NATHAN WILLIAMS AND ANOR HC AK CRI-2008-092-013286 13 May 2010
Introduction
[1] Now Mr Tumata and Mr Williams, the law requires me to spend some time going through background facts and discussing counsel’s submissions. At the very end, I will need to sentence you both individually, I will ask you to stand up and sit down again. Until that occurs and I ask you to stand up, you can both remain seated.
[2] Nathan Williams and Daniel Tumata you are here to be sentenced. You, Mr Williams, were found guilty, after a jury trial, of the murder of John Hapeta and of assault with intent to rob on Christopher Burns. You Mr Tumata pleaded guilty on the second day of the trial to assault with intent to rob Mr Burns and you were found guilty by the jury of manslaughter. Those verdicts were returned on 3 December
2009 after a nine day trial. Sentencing should have occurred in February but through no fault of counsel or the Court a remand was necessary because certain materials were not available. Then your sentencing, which was to take place earlier this month, had to be postponed because of an illness on your part Mr Tumata.
[3] Murder and manslaughter, as you both know, carry a maximum sentence of life imprisonment and assault with intent to rob under s 236 of the Crimes Act 1961 carries a maximum of seven years imprisonment. The Crown has helpfully set out in its written submissions a summary of facts which I intend to recite.
Background facts
[4] On 11 August 2008 you both planned to do a “stand over” robbery at 24
Justamere Place in Weymouth. It was your hope you would find there and be able to take away cannabis and money. There were certainly discussions which had led you both to believe that 24 Justamere Place was in the nature of a tinnie house. It was, however, the home address of the deceased John Hapeta and his family. John Hapeta was 14 years of age at the time and it was known in the neighbourhood that he would sell cannabis from that address. It was on 11 August this intention seems to have been formed.
[5] On the night of the next day, 12 August, you both dressed in black and with your faces partly covered armed yourselves with a hammer and an unloaded pistol and set out to the address. You arrived shortly after 9pm. There was a small party taking place in the garage. It appears on the evidence that you first looked through the ranch-slider of the lounge but in any event your first victim, Mr Christopher Burns, came out of the garage and was urinating in the back garden. You grabbed him, punched him, and dragged him through the back garden. You demanded cannabis from him, particularly tinnies. Mr Tumata appears to have threatened Mr Burns with the gun. Mr Willimas, you appear to have struck Mr Burns at least once on the head with the hammer. Throughout this assault Mr Burns protested he didn’t know what you were talking about and had nothing to give you.
[6] There were two dogs tied up on the premises. They began to bark and alerted members of the family, particularly the deceased’s father and mother, that something was wrong. Members of the family looked out of the house into the back garden and you were both seen advancing up on to the deck which led in to the lounge. Mr Tumata appears to have, or one of you appears to have pointed the gun at the deceased’s mother when they opened the ranch-slider on to the deck. It was during this interval that Mr Burns took the opportunity to escape and jumped over the fence at the side of the property.
[7] In very much the same time frame but on the evidence shortly after the intrusion on to the deck, the deceased came out of the garage, alerted by the dogs barking and the noise. He had, as I said, been drinking alcohol in a party situation there with friends. The evidence the jury heard was that Mr Williams advanced on him, grabbed him and demanded cannabis. Again it would seem the deceased said he didn’t have any. He was then hit twice on the head by you Mr Williams, with a hammer. The first blow glanced off the deceased’s left hand, or possibly the hand of Mr Tumata, and struck the deceased on the forehead by the left eye. The second, and fatal, blow struck the deceased on the back of his head causing a depressed fracture to his skull. He died minutes later at the scene and in full view of family members.
[8] The two of you almost immediately fled from the scene escaping out of the rear of the property and across an adjacent reserve. After running a few hundred metres you reached Mr Williams’ house. Later that night you both visited a friend of Mr Tumata, a Joseph Barter who gave evidence, where it seems Mr Tumata that you disposed of your clothing and also the gun.
The victims
[9] I have been assisted by the victim impact statements, one of which was read out in court this morning by the deceased’s mother. The deceased’s mother, Mrs Pokaihau-Rogers, also gave evidence. She is 41 and suffers from a degenerative illness and is totally dependent on her husband. There have also been victim impact statements from the deceased’s father, sister, a female cousin, and also from Mr Christopher Burns who, as I have said, was the victim of the assault with intent to rob charge.
[10] Both the deceased’s parents and Mr Burns gave evidence at your trial. The whanau understandably speak of the dreadful impact on them of seeing their 14 year old son die before their eyes. The immediate family have, in their respective ways, all been traumatised, emotionally affected, and are haunted by memories of the deceased and his happy smiling disposition which has been snatched away from them.
[11] Mr Burns for his part received severe blows to the back of his head. This resulted in ringing ears and dizziness for approximately a fortnight. For a considerable period of time Mr Burns was sad, angry, and had nightmares. And sitting as he was on the perimeter of the family he stresses the reality of the removal of a close and loved relative from three generations of a family or whanau.
[12] I reiterate what I said to the jury when discharging them after they gave their verdicts in December. The death of the 14 year old John Hapeta was totally pointless.
[13] Without in any way denigrating the victim or his whanau, his vulnerability was somewhat less than his age suggests. Part of the evidence led by the Crown pointed to some involvement, as indeed had his household, in drug dealing. However, I take aboard the deceased’s mother’s statements in her victim impact statement read out in court today that from her point of view a number of social agencies, which perhaps could have assisted the deceased, did not do so.
[14] Text traffic and the trial evidence showed that the deceased did acquire a gas operated pistol for his protection. He also, much to his mother’s anger, suggested his father round up the father’s associates to kill people who he feared might be after him. In short he was deeply involved in a subculture where for some reason society and social agencies had failed to protect young teenagers from the attendant risks of gangs and drugs. Gendall J made similar comments in respect of a 15 year old youth gang member who was killed in a raid on a tinnie house in R v Tumahai,[1] a case which is to some extent comparable.
[1] R Tumahai CA262/04, 26 October 2004.
Personal circumstances
[15] I need now to say, although you are well aware of this, something about your personal circumstances. This information has been gleaned in the main from your pre-sentence reports and also from counsel’s written submissions. I will also cover in this section of my sentencing notes your previous convictions.
[16] You Mr Williams are a 25 year old Maori of Tainui/Ngapuhi descent. You have two children, the elder is aged six and from a previous relationship. You have you say been a sole parent since that child’s birth as the mother walked out on him. The younger child, a 12 week old baby, is from your current relationship with Carla Heriora. You report strong supportive relationships with Ms Heriora and your immediate family.
[17] You say you had a good childhood with a close family unit. Until you left school with no formal qualifications at the age of 16 you attended Manurewa High
School. You subsequently worked as a service station attendant for 18 months, then for six months in a furniture removal company. At 19 you enrolled in a carpentry course at Te Wananga in Mangere, from which you did not graduate. You had temporary work with Fisher & Paykel and you were involved as a volunteer in an after-school programme together with your partner at Brookby Primary School. Unlike a lot of offenders who appear in this Court you seem to have had a reasonable work record.
[18] For the last year, or the year before your imprisonment, you lived in a marae in Mangere under 24 hour police bail. Since your remand in custody you partner has moved in with her extended family in Manurewa and has assumed care for both of your children.
[19] You told the probation officer that since your August 2008 arrest you have given up alcohol and cannabis. Although the probation officer did not test you for harmful patterns of use, you admitted using alcohol and cannabis socially before your arrest.
[20] You maintain your innocence and say this was a set up. You claim your co- offender knows the identities of the true offenders but will not reveal them. You blame your co-offender and thus inevitably you lack remorse or victim empathy. I say more about that later. But I do acknowledge Mr Williams that you have written a letter to the Court as best you can, which puts yourself into the shoes of the deceased’s family and acknowledges the loss which has been inflicted on them and the emotions under which they must be labouring.
[21] The probation report identifies a propensity to use violence, possible drug and alcohol use, an unhelpful lifestyle balance, and undesirable associates as contributing to your offending. You have six prior convictions for minor offending, none of which involve violence. You also submitted to the Court, through your counsel, a number of references which show you have support from family and whanau members and also others at your marae, and I acknowledge the presence of that whanau today.
[22] Turning to you Mr Tumata. You are a 24 year old Maori male. You seem to have grown up in southern Taranaki and Taranaki and left high school at the age of
16 with no formal qualifications. You have had a number of jobs in Auckland and at the time of your arrest were employed as a picker and packer in Manukau. You are currently single but maintain regular contact with your ex partner and your two year old daughter who have been visiting you regularly whilst you are in jail. You have family support, so you say.
[23] You admit to having had issues with methamphetamine in the past but say you were not using that drug at the time of this offending, but had been at that time consuming substantial amounts of alcohol and cannabis. You say you are in good health and have no gang affiliations.
[24] You do have, however, an alarming criminal history, some 50 convictions in all, the majority of which relate to dishonesty and driving. You have had two separate sentences of imprisonment imposed on you in relation to aggravated robbery and wounding with intent to cause grievous bodily harm. You have outstanding fines in excess of $4,000.
[25] I note that the previous conviction for aggravated robbery resulted from offending in 2006, the same year as the wounding with intent conviction.
[26] As far as your offending is concerned you said to your probation officer you were sorry to the victim’s family and that you had been preparing a letter for them which would be made available. That letter, however, was not presented.
[27] The probation officer identified as the main factors of your offending your use of cannabis, your propensity to use violation and the presence of undesirable associates. You did express some willingness to address your capacity for violence and were receptive to participating in a drug and alcohol programme. You have been assessed as having a high risk of re-offending, based on your previous convictions and the nature of your current offending.
[28] There was no attempt to assess Mr Williams’ risk of future offending, understandable given his stance.
[29] I need to address briefly the relevant Sentencing Act purposes and principles, set out in ss 7 and 8. I do not intend, however, to spell them out, but will refer to them solely by section number.
[30] As far as the purposes is concerned, particularly having regard to the need to hold you accountable for the harm, s 7(1)(a), s 7(1)(b) denunciation, and s 7(1)(e), s 7(1)(f), and s 7(1)(g) community protection, are critical here.
[31] So far as the principles are concerned those set out in s 8(a), (b), (e), (f), and
(g) are clearly relevant.
[32] On the murder count, of course, Parliament has bundled up these various purposes and principles as a matter of policy and with a stipulated minimum term set out in ss 103 and 104, although I am satisfied the purposes and principles of the statute still over-arch homicide sentencing.
Aggravating and mitigating factors
[33] I turn now to aggravating and mitigating factors. There are a number of aggravating features here relating to the offending. These include the actual and threatened violence; the use of weapons, a hammer and an unloaded pistol; the fact that the homicide took place during the course of an attempted robbery; the vulnerability of the victim given his age; the significant harm caused, in this case loss of life; the premeditation involved, the robbery being planned, it would seem, the previous day; the fact that you armed yourselves; and the fact that across both victims a number of blows with a hammer were inflicted and certainly two on the deceased.
[34] Although Mr Tait in his written submissions suggested perhaps unlawful entry was involved here, I note Mr Burns, for the Crown, accepts that it was unlawful entry on to a property rather than into premises.
[35] I am unaware of any mitigating factors so far as the offending is concerned.
[36] Aggravating and mitigating factors relevant to you Mr Williams include your previous good character and your relative youth, although I cannot weigh that significantly because, as Mr Burns correctly submits, your current age really puts you right in the middle of offenders who appear in this court.
[37] Aggravating factors relevant to you Mr Tumata include your previous convictions, which are serious and involve violence, and also the fact this offending took place whilst you were on parole.
[38] Mitigating factors for you Mr Tumata might include your limited involvement in the homicide, your late plea to the lesser charge and the degree of remorse which you have expressed, although in terms of R v Hessell[2] that does not in itself justify a separate discount. I also note the assistance you gave to the police by dialling 111 anonymously and identifying your co-offender Mr Williams. I also note Mr Tait’s submission, you stated to the police you attempted to deflect one of the blows and there was a consistent injury that was seen on your body at the time.
[2] R v Hessell [2009] NZCA 450.
Counsel’s submission
[39] I do not need to go at length through counsel’s submissions. In respect of Mr Williams the Crown submits that this is a clear case where s 104 applies and that the Court is obliged to order a minimum term of imprisonment of at least 17 years.
[40] For you Mr Williams your counsel, who I must say has acted in a highly competent fashion for you throughout this entire process, accepts that a minimum term of at least 10 years and life imprisonment are inevitable. She does submit, however, that although s 104 is engaged, there are a number of factors which would justify me in coming down below the 17 year MPI. Your counsel describes you as a virtual first offender. She notes that you maintain your innocence and are thus not entitled to any credit for remorse. Counsel have identified correctly the authorities
so far as s 104 is concerned, and in Ms Dyhrberg’s submission, it would be unjust to impose a 17 year minimum term because you were not the instigator; this was a tragic mistake during a robbery; you did not intend anyone to get hurt; your personal circumstances, your age and the fact that you have no relevant previous convictions.
[41] Having reviewed the authorities and in dialogue with the Bench today Ms Dyhrberg submitted an appropriate minimum term would be in the 12 to 14 year band and that 13 years would be appropriate. Anything above that band, in counsel’s submission, would in the circumstances of your case be manifestly unjust.
[42] For you Mr Tumata your counsel has given me succinct but focused submissions. So far as you are concerned the Crown seeks a start point of nine to 10 years and sees this as fitting in the lower end of band 3 of R v Taueki.[3] The Crown seeks an uplift to between six and 12 months to reflect your previous criminal history and also seeks the minimum period of imprisonment of 50 percent of the final sentence.
[3] R v Taueki [2005] 3 NZLR 372.
[43] Mr Tait accepts that a minimum term of imprisonment is appropriate. He has helpfully compared your situation with other cases including the authority of R v Grace and Anor.[4] He points out to me the various mitigating factors which I have already highlighted. He suggests that a start point of nine years with an end sentence of seven years with an MPI of four years is the appropriate outcome, although in dialogue with the Bench accepted if I were to regard Grace as comparable there
[4] R v Grace and Anor HC AK CRI-2006-92-016632, 24 March 2009, Winkelmann J
would have to be some uplift to reflect totality.
The sentences
[44] Crafting appropriate sentences for both of you requires different approaches. [45] Sentencing you, Mr Tumata, is relatively straightforward. I need to arrive at
a figure which reflects your overall culpability for both manslaughter and assault
with intent to rob. The figure must reflect the totality of those two offences, to one of which you pleaded guilty, as I have said, on the second day of your trial. Unlike Mr Williams there are significant aggravating features relating to you in respect of which there must be an uplift. Helpfully, counsel are not significantly apart on the appropriate range. Nor is there any dispute that a minimum term of imprisonment must be imposed.
[46] Mr Williams, sentencing you is much more difficult. You deny any involvement in the homicide and say you were set up. Interestingly the victim’s mother, for some reason, regards you as being blameless, and shares your view.
[47] As you will appreciate, and as your counsel accepts, neither counsel nor I can ignore the jury’s verdict which was reached conscientiously, and I think correctly, at the end of a fair trial at which you had extremely competent representation by Ms Dyhrberg. I accept, as your counsel stressed in her closing address to the jury, that much of the Crown evidence against you was slight and circumstantial. Perhaps the most compelling narrative involving you was inadmissible, that being the police statements of your co-accused Mr Tumata. His statements were subject to extremely strong directions from me, both in my summing up and at relevant stages during the trial. And the inadmissibility of those statements was also stressed by counsel in their closing addresses. I am sure the jury followed those directions. But had you been tried alone, the dynamic might well have been different.
[48] One of the important constitutional aspects of jury trials, which trial judges and appellate judges need to bear in mind, is that New Zealand juries are seldom foolish; they take a collective common-sensical view of life with their feet firmly planted in the realities of life and are thus capable of reaching verdicts which Judges alone, properly trammelled by the rules of evidence, might not so easily reach.
[49] But the short answer, Mr Williams, to your claim that you were set up and indeed to your claim your co-offender Mr Tumata was the prime instigator, is quite simply you did not give evidence at your trial. That was your right and doubtless in deciding whether or not to give evidence you were guided by the highly competent advice of your counsel. But in normal circumstances people who have nothing to
fear, nothing to hide, and were quite simply not involved in a crime or anywhere near a crime scene, will usually get into the witness box to say just that, and take their chances with cross-examination. In short, as trial judge, although I fully perceived that aspects of the Crown case against you were weak, I was not left with a lingering concern that the police had got the wrong man.
[50] The real challenge in sentencing you will be the 17 year minimum term stipulated by s 104 of the Sentencing Act given the scope of that section and in particular s 104(d).
[51] That said I now turn to sentencing Mr Tumata.
Tumata sentence
[52] I have already referred to counsel’s submissions. Mr Burns urges a start point of nine to 10 years. Mr Tait suggests a start point of nine years with an end sentence of seven years. I am sentencing you on manslaughter and on your s 236 offence to which you belatedly pleaded guilty at trial. On the available evidence, the Crown was justified in pursuing the murder count. I am also, as trial judge, satisfied on the evidence that the jury’s manslaughter verdict was a proper outcome.
[53] There is no tariff case for manslaughter. One comparable case is the Court of Appeal’s judgment of R v Repira,[5] involving death resulting from a blow to the head, with a baseball bat during the armed robbery, of a fast food delivery person. The start point there was ten years. More directly comparable, as counsel accept, is the sentence last year imposed by Winkelmann J in R v Grace and Anor. There the principal offender, as here, was convicted of manslaughter. Assault with intent to rob convictions were also relevant. There was a home invasion robbery for drugs. The victim was tied and gagged and died at the scene. The offender, like you Mr
Tumata, offended whilst on parole. The Judge used a nine year start point.
[5] R v Repira [2003] 3 NZLR 794
[54] Looking at the totality of your offending, the planned robbery was premeditated; you knew that a weapon was going to be involved even though you did not anticipate it was going to be used, you in fact took a weapon with you; there were assaults on not one victim but two. Disguises were used.
[55] Using the manslaughter count as the lead charge and arriving at a start point to reflect your overall culpability on both counts, and reflecting the aggravating features relating to the offences which I have already identified, I consider a start point of nine and a half years is justified. I consider that needs to be uplifted by 12 months to reflect your personal aggravating features of offending whilst on parole and also your previous convictions which include aggravated robbery and wounding with intent to cause grievous bodily harm. Some might see that as a lenient uplift.
[56] As to mitigating features, in the normal course of events and having regard to the Court of Appeal’s comments in R v Hessell,[6] a plea on the second day would not entitle you to any significant mitigating discount. Nonetheless, in the context of a joint trial, your guilty plea made matters much easier for the jury. I also intend to factor in as mitigating features your anonymous phone call (used in evidence) to
the police, and the fact that, so far as the homicide was concerned, you made a full statement to the police, albeit somewhat selective, in which much useful information was divulged. I consider a generous mitigating discount for those factors would be one of nine months which brings me to an end sentence of nine years and nine months imprisonment.
[6] R v Hessell (2009) NZCA 450.
[57] Stand up please at this point Mr Tumata. Thus, on the charge of manslaughter, I sentence you to nine years and nine months imprisonment. On the charge of assault with intent to rob, to reflect the fact that your involvement was more that of a party than a prime offender, and also to reflect your guilty plea, I sentence you to four and a half years imprisonment. Those two periods of imprisonment are to be served concurrently.
[58] On the issue of a minimum period of imprisonment under s 86 I accept the submissions of both counsel that such a minimum term is appropriate. Parole eligibility after three years and three months would, in my judgment, be insufficient having regard to the need to hold you accountable for the harm done to the victim who lost his life and his family, to denounce your conduct, and in your case, having regard to your previous convictions, community protection. The minimum term I impose on you is one of five years imprisonment. Whether you are suitable for parole after five years will be entirely a matter for the Parole Board. Sit down Mr Tumata.
Williams sentence
[59] Now I turn to Mr Williams. In running its successful prosecution against you for murder the Crown followed three routes. These were intending to kill the victim (s 167(a)), reckless infliction of bodily injury likely to cause death (s 167(b)), and what is colloquially described as felony murder under s 168(1)(a). The first route, as I have said to counsel today, was not pursued vigorously.
[60] It seems to me that both s 167(b) or s 168(1)(a) were open to the jury. The latter route would have been the easier route because all the Crown would have had to establish was that you intended to cause grievous bodily harm for the purpose of carrying out a robbery. You were, on the evidence, intending to carry out a stand over robbery of the deceased’s home at 24 Justamere Place, Weymouth. Indeed money and drugs were demanded of the victim Mr Burns. Hitting someone on the head with a hammer would cause grievous bodily injury. But equally on the facts the jury could have reached the same result under s 167(b). As a matter of commonsense inflicting significant blows on a person’s head with a hammer, and here there were two blows, must run the risk of death.
[61] By either route, as I think your counsel accepts, the law requires a sentence of life imprisonment and, under s 103(1) of the Sentencing Act a minimum term must be imposed. Unfortunately for you, the combination of the two offences brings you squarely inside s 104(d). The murder was committed in the course of carrying out a
robbery. Section 104 obliges a court to impose a minimum period of 17 years imprisonment at least unless satisfied it would be “manifestly unjust to do so”.
[62] I have been helpfully referred to a number of similar cases. Regrettably, however, they are not totally comparable. The Court of Appeal in R v Parrish,[7] upheld a minimum term of 13 years in respect of a man who killed his wife, where s 104 applied because of careful planning and unlawful intrusion into the victim’s home. The Court of Appeal dismissed an appeal against a 13 year minimum term which it described as a “merciful sentence” (at [23]). The appellant’s age, ill health,
and previous good character were mitigating factors.
[7] R v Parrish (2003) 21 CRNZ 571.
[63] The Court of Appeal rejected, as counsel have reminded me, in R v Slade[8] the suggestion there was a “youth exception” under s 104. And you by no stretch of the imagination Mr Williams can be described as a youth. But a 17 year minimum term was set aside because of the crushing effect it would have on a 17 year old offender coupled with his significantly lesser involvement. So, as with Parrish, the “manifestly unjust” threshold is not inflexible and can in suitable cases be tailored to reflect the personal circumstances of an offender.
[8] R v Slade [2005] 2 NZLR 526.
[64] R v Tumahai,[9] and R v Watene,[10] are both interesting cases. Section 104 applied to both. In both, discounts of three years and two years from the seventeen year MPI were imposed to reflect guilty pleas, not a factor here. I note that in Watene Mallon J was confronted with a strong submission that in a felony murder case, there was an aspect of double counting, referred to by Mr Burns today, and that a 17 year MPI should not be uniformly applied. Mallon J examined this issue in her sentencing notes ([21] – [24]) and rightly concluded it was largely a matter of statutory interpretation. The approach Her Honour adopted (at [27]) was that there were two steps. The first is to assess the seriousness of the murder taking into account all aggravating and mitigating factors. If that assessment leads to a conclusion that a minimum of 17 years or more would be justified, then the
minimum non parole period needs to be imposed. Otherwise, as a second step, consideration needs to be given as to whether 17 years would be manifestly unjust despite meeting the s 104(d) criterion.
[9] R v Tumahai CA262/04, 26 October 2004 Gendall J (Coram: Anderson P, and Baragwanath and Gault JJ),
[10] R v Watene (HC Wellington CRI-2007-485-127, 11 December 2007)
[65] As a matter of interpretation, and I accept Mr Burns’s submission here, it is quite clear that s 104(d) means what it says and that murder committed in the course of another serious offence must attract at least a 17 year MPI. Section 168 of the Crimes Act was in existence for many years before s 104 of the Sentencing Act was enacted. In enacting s 104 Parliament must have had the entire statutory range of murder in mind. It would be idle to contend otherwise.
[66] So I focus instead on a scrutiny of what your counsel has urged on me, - that I should impose a minimum term of less than 17 years because 17 years without more would be manifestly unjust.
[67] The approach used by Venning J in R v Mackness[11] has its attractions. The statute stipulates a presumption of a minimum of 17 years. It is for the prisoner to show why that would be manifestly unjust. The words “manifestly unjust” clearly impose in this (and other) statutes a high threshold not easily or lightly crossed. Quite apart from the dictionary definition of “manifestly”, somebody standing on the sideline must reach the conclusion that a 17 year minimum term would clearly infringe the normal tenets of justice. Finally, aggravating and mitigating factors have to be thrown into the balance, with the result that even more powerful mitigating factors may be neutralised by aggravating factors.
[11] R v Mackness (HC Hamilton T023921, 14 April 2003 at [14])
[68] Some people, of course, and I suspect certainly your victim’s family in this case, would regard even a 17 year MPI as inadequate. After all a life has been lost forever. Whatever term you serve Mr Williams, as Mr Burns eloquently said this morning, you will at some stage be able to resume your life which your victim never will. But sentencing judges and appellate courts must operate, for sound constitutional reasons, in the area of statute and precedent, unaffected by public clamour, victims’ views, no matter how understandable, lobby groups and the constantly changing tides of public opinion.
[69] The policy choices are stark. The words “manifestly unjust” impose a high hurdle. Sentencing judges have little room for manoeuvre, as is evident from the difficulties of giving significant discounts for guilty pleas in s 104 cases. Yet, as is clear from Parrish and Slade, s 104 does not prohibit merciful sentences. Significant areas of unpredictability are raised, including at appellate level, since the perception of one judge being merciful may equate with another judge’s perception of inadequacy.
[70] So I set out my clear perception as trial judge of an appropriate sentence and the constitutional discretion I must exercise. That perception is:
(i)I would not, given s 104 and the facts of this case, impose an MPI in excess of 17 years.
(ii) I have huge uneasiness about the justice in your case of an automatic
17 year imposition.
That uneasiness in part stems from the parliamentary straightjacket, which I accept is a policy choice of Parliament, of the 10 year and 17 year minima, legislated for sound policy reasons, which judges must not read down.
[71] However, my uneasiness diminishes considerably when, from a statutory interpretation standpoint, I look at the structure and policy of s 104. The felony murder inclusion in subsection (d) is but one of 10 types of homicide caught by the section. The section includes particularly egregious murders such as terrorist acts; killing police or prison officers in the course of their duty; murder for reward; and high levels of brutality and depravity. Although the 17 year minimum is the start point for s 104 MPIs, it would be idle to suggest that all murders caught by s 104 should be met by the same level. The circumstances of your murder, Mr Williams, are less culpable than say terrorist acts, or killing police officers. In other words an appropriate MPI to reflect the gravity of your offending might justifiably fall below
17 years, or to put it in terms of the statute, 17 years as a response to your offending as against the other types of murder covered by s 104 could well be manifestly unjust. This approach receives some support in an authority to which I turn in a
second, R v Williams[12] which at [51] observes that the relative culpability of s 104 factors varies hugely and the mere presence of a s 104 factor will not automatically give rise to a 17 year minimum term in every case.
[12] R v Williams [2005] 2 NZLR 506.
[72] I gain considerable comfort, however, in this area from the Court of Appeal’s judgment of R v Williams. That case involved consideration of two Solicitor- General appeals where s 104 came into play. It is clear that a sentencing judge must have regard to the degree of culpability of an offender to justify the minimum term under s 104. This is a two step approach. The first is to consider the offender’s culpability against the “standard range of murders”. This culpability assessment must have full regard to the legislative policy of s 104. If this first step indicates a minimum term of 17 years or more then the resulting term must reflect that assessment. The second step comes into play where the culpability assessment might not trigger the 17 year minimum. In that event the sentencing judge has to consider whether imposition of a 17 year term would be manifestly unjust.
[73] As the Court of Appeal stressed, and as Lang J recently said in R v Kee,[13] the public must have an appreciation (whether they agree or not) of the reasons why a court is departing from parliamentary policy. Manifest injustice, according to the Court of Appeal in Williams could well arise when, as a matter of overall impression an offender falls outside the scope of the legislative policy of murders sufficiently serious to justify at least that term or where the case falls short of the general band of s 104 culpability.
[13] R v Kee (CRI-2008-092-008864, 7 May 2010).
[74] This would have been a much easier conclusion to reach, Mr Williams, had you pleaded guilty and been entitled to the powerful mitigating factor of a guilty plea. That was certainly the case in the sentence of Mallon J in Watene to which I have referred.
[75] The matters advanced by your counsel to support a manifestly unjust argument are that you were not the instigator, that the homicide was unforeseen,
your youth, your lack of relevant prior convictions (you have never been imprisoned), your age, and your personal circumstances.
[76] The easiest course would be for me to impose a 17 year MPI and have done with it. But to do so would be to repress my uneasiness and would I think not be true to my constitutional function.
[77] I consider that when reflecting on the high “manifestly unjust” threshold, the purposes and principles of the Sentencing Act must be considered. The points advanced by your counsel are properly, for s 104 purposes, to be regarded as “mitigating factors”. I have been alert to the aggravating factors which are apparent from earlier portions of my sentencing notes. Denunciation, community protection, and holding you accountable for the death of your victim ride high here. But so too, given your background and record, must be factored in the s 7(1)(h) purpose of assisting your rehabilitation, and the ss 9(g) and (h) principles of the least restrictive outcome, and not imposing an MPI on you which would be disproportionately severe.
[78] Factoring in the R v Williams approach, although there is no avoiding the fact that the murder occurred during the commission of a serious offence, your culpability falls short of deploying loaded weapons, threatening members of the public, the high degree of callousness, and brutality and other classic aggravating factors to which Parliament appropriately insists on severe penalties. This murder, and I am in no way minimising your culpability, is more serious than a random unpremeditated outburst of violence or thuggish stabbing during a brawl. But your overall culpability in my view falls slightly short of the s 104 threshold.
[79] By a very small margin, those factors, plus a comparison with the outcome of your less culpable co-offender Mr Tumata, lead me to a conclusion that there is a degree of a manifestly unjust outcome with a 17 year MPI. And in assessing “manifestly unjust” I weigh the range of offences to which s 104 clearly applies, and your overall culpability, and the clear expression of Parliamentary policy.
[80] Stand up at this point please Mr Williams.
[81] My finding is unique to you, your record, your involvement, and in particular the circumstances of this offence. I thus intend to reduce the 17 year MPI stipulated by s 104 to a level where the manifestly unjust component disappears. I consider this would disappear at the level of 14 years.
[82] Thus, Mr Williams, on the charge of murder I sentence you to life imprisonment and order that you are to serve a minimum period of imprisonment of
14 years.
[83] On the charge of assault with intent to rob, your culpability being greater than that of your co-offender, I sentence you to a period of five years and three months imprisonment.
[84] Both terms of imprisonment are obviously to be served concurrently.
[85] Thank you for your patience, courtesy, and attention. Take them both down.
.......................................… Priestley J
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