R v Williamson-Atkinson

[2024] NZHC 611

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2022-220-64

[2024] NZHC 611

THE KING

v

JUSTICE WILLIAMSON-ATKINSON

Hearing:

20 March 2024

Appearances:

C E Clarke for the Crown

M J Phelps and N M Graham for Mr Williamson-Atkinson

Date:

20 March 2024

SENTENCING OF COOKE J

[1]    Justice Williamson-Atkinson I now need to sentence you for the murder of Adrian Humphries following the guilty verdict reached by the jury at your trial last year.

[2]In explaining the sentence that will be imposed on you I will do three things:

(a)First I will explain the facts of your offending.

(b)Secondly, I will describe the approach that is required for the sentence of murder, and in particular why the sentence of life imprisonment will be imposed on you.

R v WILLIAMSON-ATKINSON [2024] NZHC 611 [20 March 2024]

(c)Thirdly, I will explain what the law says about what is called the minimum period of imprisonment — that is the minimum period of time you must stay in prison before you are considered for parole and what that is in your case.

(d)And finally I will address whether your personal circumstances, and particularly your youth means that a lower minimum period should be imposed, and what that should be.

The offending

[3]I begin by describing your offending.

[4]    On 6 May 2022 you were present at the Bushlands Campground on Tāngarākau Road, Whangamōmona. This is a remote campground approximately 24 kilometres from Whangamōmona Village and 1.5 hour’s drive from Stratford. You were present as part of a youth justice course known as the START programme. You were 15 years old at the time and the programme is directed towards young offenders. There were two other rangatahi and three course mentors present on the START course at the campground. You had been engaged in outdoor pursuit exercises for a number of days before coming to the Bushlands Campground, which had more facilities than the other places that you had been camping before that time.

[5]    The campground has a number of sleeping cabins, a toilet/shower block, a separate kitchen/dining unit, and a firepit area encircling a large grass area where others could camp. The three course mentors and you and the two other boys pitched your tents in an area approximately 40 metres from this main campground area. You each had your own pup tents, and the three course mentors stayed in a six person tent.

[6]    There were few others at the campground that day. Apart from the owner/occupiers of the campground there was one other small group — an off duty police officer and his family who occupied two of the cabins, and Mr Adrian Humphries, the victim. Mr Humphries had come from his home in Rotorua to stay for the week using a camping trailer which he towed with his vehicle. This folded out into a large tent of approximately 7 x 4 metres involving two main areas, a living area

and a sleeping area. He assembled this in the main grass area of the campground when he arrived on 6 May.

[7]    You did not know Mr Humphries, and had only passing contact with him during the day at the campground. That evening Mr Humphries was invited to a potluck dinner by the owner/occupiers of the campground at a nearby house. Your group spent the evening at the campground, preparing and consuming a joint meal in the kitchen cabin, and subsequently spending time around a fire in the firepit area.

[8]    At some stage during the day you and one of the other boys formed a plan to escape  from  the  START   programme  by  stealing  a  vehicle.   You   identified    Mr Humphries’ vehicle, which was parked next to his tent, as the one that would be stolen. As part of the programme the youth participants are not allowed access to items that might be used as a weapon, such as knives. But during the evening when preparing and having your evening meal at the kitchen unit you stole one of the knives from the kitchen hiding it in your clothing. Your purpose in doing so was to use the knife to facilitate stealing the vehicle and escaping with the other boy.

[9]    After your dinner, and the period of time around the firepit, your group returned to the tents to go to sleep. Before sleep you declined to take your medication (melatonin) which assisted you with sleeping. The group had discussions when they were in the tents, following which you and the other boy pretended you had fallen asleep before the mentors themselves allowed themselves to fall asleep.

[10]   Mr Humphries also subsequently returned to his tent after receiving a lift from one of the others who had attended the potluck dinner. He then retired to his tent to sleep at some time between 10.30 and 11 pm. He generally did not find sleeping easy, and used a sleep apnea machine.

[11]   At approximately 1 am the next morning you and the other boy left the pup tents and went to Mr Humphries’ tent. You entered his tent without authority and began a search for his car keys so that you could steal his car. While you were doing so Mr Humphries woke up. At that stage you stabbed Mr Humphries with the knife you had earlier stolen. You stabbed him five times. Mr Humphries was in his sleeping

bag when he was stabbed, and four of the entry wounds involved Mr Humphries being stabbed through his sleeping bag, with the fifth to the upper area of his body. You stabbed him with significant force with  two  of  the stab wounds  cutting  through Mr Humphries’ ribs. Mr Humphries also received a blow or blows around the head, although the Crown did not prove that these were administered by you. You and the other boy then ran from the tent.

[12]   Mr Humphries was able to get out of his sleeping bag and leave his tent, but two of the stab wounds were fatal and he collapsed a short distance from his tent and died. The cause of his death was loss of blood from the stab wounds administered by you.

[13]   When you stabbed Mr Humphries you meant to cause him grievous bodily injury for the purposes of avoiding detection for the attempted commission of burglary. That intention also encompassed a murderous intent as stabbing Mr Humphries could only prevent detection if Mr Humphries died so that he could not identify you and the other boy. This intent is reflected in the number of stab wounds, and their force.

[14]   After Mr Humphries died you and the other boy took steps to avoid detection for involvement in Mr Humphries death. This involved disposing of the knife, which has never been located, and also disposing of Mr Humphries cellphone and wallet which you had found in his tent, which was thrown in the undergrowth next to a stream some distance away. You then returned to your tents where you remained for the rest of the night.

[15]   I want to acknowledge Adrian Humphries’ family, and particularly acknowledge the victim impact statements from his parents Rose and George Humphries, and his sister Teresa Keatley. I recognise the tremendous loss that you feel, and how difficult it must have been to have him die in the way that he did so far away from you. This case is rightly characterised as a tragedy. It is of course not just Adrian’s family that has been so significantly affected by the offending. Those that live in the beauty of Bushlands Campground, and those who devote their lives to seeking to help young offenders in the START programme have also been deeply

affected. But the Court particularly acknowledges the profound loss felt by Adrian’s family.

Approach to sentencing for murder

[16]   A person who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.1

[17]   If the sentence is life imprisonment, the offender must serve a minimum period of imprisonment or MPI — that is a period of imprisonment the offender must serve before they can be considered for parole by the Parole Board. The purpose of a minimum period of imprisonment or MPI is to hold the offender accountable, to denounce their conduct, to deter others and to protect the community.2

[18]   For murder the Court must order the offender to serve a MPI of not less than ten years — there is no discretion to sentence below that figure.3 In certain cases, however, an MPI that is longer than ten years is necessary in order to satisfy all or any of the purposes of MPIs. Under s 104 of the Sentencing Act the Court must impose a MPI of at least 17 years in cases which involve one or more of the aggravating factors listed in s 104 unless it would be manifestly unjust to do.

[19]   Three of the factors listed in s 104 apply in your case. The most directly engaged is s 104(1)(a) on the basis that you stabbed Mr Humphries for the purpose of avoiding detection for the attempted burglary. You entered Mr Humphries’ tent to take his car keys and steal his car. Upon being caught, you formed the  intention to stab Mr Humphries so he could not subsequently identify you and the other boy as responsible for the attempted burglary. The offending also involved unlawful entry into Mr Humphries’ dwelling place — his tent — and the murder was committed in the course of another serious offence. As a consequence I must make an order under s 103 imposing an MPI of at least 17 years unless it is manifestly unjust to do so.

1      Sentencing Act 2002, s 102(1).

2      Sentencing Act, s 103(1) and (2).

3      Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298.

[20]   The Court of Appeal has recently explained in Davis v R that in order to decide whether it is manifestly unjust to impose the 17 year MPI the Court should first assess what the minimum period of imprisonment would have been apart from s 104, and then consider whether imposing the higher minimum period of imprisonment required would involve manifest injustice.4

[21]   In terms of the offending there are a number of aggravating circumstances. The offending involved:

(a)Actual violence and the use of a weapon.5 You stabbed Mr Humphries five times with significant force, with a knife. This resulted in multiple stab wounds, and the force was enough to cut through his ribs.

(b)Unlawful entry into a dwelling place.6 You entered Mr Humphries’ tent without authority in the night while he was asleep. Your entry and presence there was unlawful.

(c)The  extent  of  loss   and   harm.7   The  harm   here  is   significant, Mr Humphries lost his precious life as a result of your offending.

(d)Mr Humphries was particularly vulnerable in the sense that he was asleep in a sleeping bag, and thus his ability to defend or protect himself upon attack was limited, which you would have appreciated in the moment.8

[22]   In terms of your personal circumstances I have the advantage of advice in the pre-sentence report from the Department of Corrections dated 12 February 2024, and a detailed psychological report dated 20 February 2024 from Dr Kevin Austin. That report also summarises previous reports and information and other reports have been made available to me on the programmes you have been engaged in more recent times.

4      Davis v R [2019] NZCA 40, [2019] 3 NZLR 43 at [25].

5      Sentencing Act, s 9(1)(a).

6      Section 9(1)(b).

7      Section 9(1)(d).

8      Section 9(1)(g).

[23]   You have an extensive personal history of care and protection concerns centred on neglect, poor hygiene, a lack of food, inadequate clothing and similar features. Your schooling was often transient, and you have attended 13 different schools. It was characterised by bullying and rejection, and also the perpetration of violence against others. You were stood down from school on four occasions and suspended on one occasion at the age of 12. The stand downs were for violence including using a knife to intimidate other students.

[24]   At the age of 10 you were diagnosed with foetal alcohol spectrum disorder and attention deficit hyperactivity disorder. As a result of these conditions you have neurodevelopmental problems including impaired executive functioning, which in turn has contributed to reduced academic achievement and antisocial attitudes and behaviour in the community. You present with depression and anxiety, and in general there has been a lack of appropriate interventions throughout your life. The neurodevelopmental deficits you experience include difficulties resisting peer pressure, extreme difficulties with impulsivity – a tendency to act in the moment and the inability to reflect on the past to inform present decisions and behaviour, and difficulties in generating alternative solutions to problems. Your anxiety manifests into displays of anger, and you have experienced a continuum of rejection and failure to which you attempt to cope with through bravado.

[25]   Those are only a few of the disabilities associated with your diagnoses that  Dr Austin says, combined with your adverse environment over many years, contributed to your risk of offending, and possibly bear on your moral culpability. You have a moral compass in the sense of appreciating right from wrong, but your ability to fully appreciate the seriousness of your offending is said to be impacted by the factors I have already mentioned. It is Dr Austin’s view that you are significantly less mature than a typical 17-year-old due to those neurodevelopmental issues.

[26]   I consider that these factors are of particular significance in this case. You were aged 15 at the time of your offending. The Court of Appeal has recently further

explained the impact of imprisonment on young persons in Dickey v R.9 The features the Court of Appeal emphasised apply in your case. In particular:10

(a)Adolescent behaviour reflects the slow pace of development in areas that affect impulse control, risk assessment and planning ability.

(b)Young persons who commit serious offences frequently exhibit other characteristics such as intellectual deficits and childhood trauma.

(c)Young people are nevertheless more receptive to treatment and have better prospects of rehabilitation.

[27]   The other factor that is relevant to sentencing young persons is the crushing effect that a very long sentence can have, notwithstanding the higher rehabilitation potential that can be evident in young people.

[28]   I consider that these features are clearly reflected in this offending. The reality is that stabbing Mr Humphries in the way that you did just did not make any sense. You were trying to steal his keys so that you could steal his car to get away from the programme — the kind of offence that you had committed in the past. When he woke up you impulsively stabbed him. You did so to avoid being caught stealing. But that made no sense whatsoever. It was obvious from the moment that you stabbed him that you would not get away with anything. The only other people present at this remote campground apart from the owners was an off-duty policeman and his family. It was obvious, if you had applied any thought to it, that you and the other youth offenders would likely be identified as responsible for Mr Humphries’ death. So your actions in killing Mr Humphries reflect the kind of impulsive lack of control characteristic of adolescents, and particularly present in you given the impacts of the foetal alcohol spectrum and attention deficit hyperactivity disorders that you suffer from.

[29]   In Dickey the Court of Appeal held that sentences of life imprisonment on three young offenders were manifestly unjust, and they substituted sentences of 15, 13 and

9      Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405.

10 At [86].

12 years with MPIs of seven and a half, seven and six years. Your counsel argues that a similar approach should be adopted in your case. But none of those cases involve offending where s 104 applied, and the Court held that s 104 was still relevant to the assessment of manifest injustice.11 Given that your case is treated as one of the more serious cases of murder identified by s 104, and given that three of the s 104 factors apply, I do not consider that it can be treated as one of the exceptional cases where it is manifestly unjust to impose life imprisonment.

[30]   But I do consider that the decision in Dickey v R demonstrates a degree of recalibration of the general approach for sentencing of young offenders for murder may be appropriate particularly when they have conditions such as those you suffer from. There are three previous cases that I consider provide guidance:

(a)In R v Churchward,12 Ms Churchward, aged 14 at the time of offending, violently attacked and killed an elderly man by striking him with a rod having broken into his home looking to steal money  or  valuables.  Ms Churchward suffered from mental health issues, including depression and symptoms of PTSD. She was originally sentenced to life imprisonment with an MPI of 17 years, which was substituted on appeal with an MPI of 13 years.

(b)In R v Whiting-Roff,13 Mr Whiting-Roff, aged 20 was the principal offender in a planned group attack in which the group lured the victim to a stadium, where Mr Whiting-Roff stabbed the victim 14 times. The Judge took a starting point for the MPI of 15 years. He then applied a discount of two years to reflect Mr Whiting-Roff’s mental functioning (caused by FASD)  which reduced his moral culpability.  A further   12 months was discounted for a guilty plea, resulting in a 12 and a half year-MPI.

11 At [165].

12     R v Churchward [2011] NZCA 531, (2011) 25 CRNZ 446.

13     R v Whiting-Roff [2018] NZHC 3239 (this is the case on appeal in Dickey v R, above n 9, however, Mr Whiting-Roff’s sentence was not appealed).

(c)In R v Waitokia a 16 year old offender entered an elderly deceased’s home with intent to rob striking the deceased 14 times with a bottle.14 The murder was committed in the course of another serious offence and the deceased was vulnerable. But the court held that a 17 year

minimum period of imprisonment would be manifestly unjust because of youth and the personal background factors. The Court imposed an MPI of 11 and a half years.

[31]   I note the Crown accepts that it may be open to the Court to consider a 17 year minimum period of imprisonment to be manifestly unjust, and if it does the Crown suggests a period of between 12 and 15 years would be appropriate. Defence counsel suggests the range is 10 to 12 years.

[32]   I consider the Court of Appeal’s guidance in Dickey v R suggests that there is a greater need to focus on the impact of adolescence particularly when the offender has other conditions impacting on their culpability. There is a need to be more aware of the factors that effect moral culpability, and of the crushing effect of long sentences on young offenders. Lower minimum periods of imprisonment may accordingly be appropriate for youth offenders following the decision in Dickey.

[33]   For that reason were it not for s 104 I consider that a minimum period of imprisonment of 11 years would have been appropriate in your case. I note that this would mean that you would be eligible to be considered for parole when in your late 20s.

[34]   Given that the MPI that I consider would be appropriate is six years shorter than that contemplated by s 104, and given the factors that I have already addressed as part of this assessment, I conclude that it would be manifestly unjust for you to be sentenced to a 17 year MPI.

[35]   On the charge of burglary, of which you were also found guilty, you will be sentenced to one year’s imprisonment which will be served concurrently, meaning that it does not lengthen your total term of imprisonment.

14     R v Waitokia [2017] NZHC 178.

[36]   Justice, I can see from the reports that you recognise that you will serve a lengthy period in prison, but that you have hopes for your future life. Eleven years may sound like a long time until you will be considered for parole but it is important that you think about your future, and that you take advantage of all the help that you may have in prison, and do things like completing NCEA qualifications. It is only by getting help, working on yourself, that you can maximise the chances of you being released once the minimum period of imprisonment passes.

[37]Justice will you please stand.

[38]   For the murder of Adrian Humphries I sentence you to life imprisonment, and to a minimum period of imprisonment of 11 years. On the burglary charge you are sentenced to one year’s imprisonment to be served concurrently. Please stand down.

Cooke J

Solicitors:

Crown Solicitors, New Plymouth N H Graham, Napier