[1] Gabriel Yad-Elohim, you appear for sentence having been found guilty of the murder of Michael Mulholland on the evening of 26 September 2017. I acknowledge again the presence of Mr Mulholland’s family in Court today and I thank
Mr Mulholland’s daughter for her victim impact statement which I am taking into account.

[2] There was never any doubt that you killed Mr Mulholland. The assault was captured on CCTV footage at the scene. You went to Mr Mulholland’s apartment building with Ms Uru, with whom you had a slight acquaintance and whom you had approached on the street to buy drugs. Ms Uru, who was known to Mr Mulholland, persuaded you to hand over $200 and to stay on the landing below Mr Mulholland’s apartment while she bought the drugs for you. You say Ms Uru had told you
Mr Mulholland had gang associations. You remained on the landing awaiting

Ms Uru’s return. But she did not return. She had climbed over the balcony at

Mr Mulholland’s apartment, clambered back to the ground and ran away with your money. As Ms Uru admitted in evidence, that had always been her plan.

[3] After a while, you became suspicious and went up to Mr Mulholland’s apartment and knocked on the door. Mr Mulholland opened the door and you spoke briefly with him. It appears he denied any knowledge of Ms Uru. You then grabbed Mr Mulholland, headbutted him twice, dragged him out of the doorway onto the landing, and punched him in the head. Mr Mulholland fell to the ground beside the wall, apparently already unconscious. He remained on the floor inert through the attack that followed.

[4] You attacked Mr Mulholland round the head, hitting him repeatedly with your elbow and fists, before kicking and stomping on his head and body for around four minutes. At one point, you left the landing and walked down the stairwell before returning and kicking Mr Mulholland about the head, body and legs for a further three minutes. It is estimated that you inflicted approximately 90 blows on Mr Mulholland in the course of this sustained attack. Mr Mulholland died as a result of the blunt force trauma you inflicted to his head, face and abdomen. You were arrested on Karangahape Road the following day by police officers who recognised you from the CCTV footage of the attack.

[5] It is accepted that you suffer from a severe mental disorder, chronic schizophrenia, which may have been exacerbated by your having taken methamphetamine some…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Yad-Elohim

Details

AGLC: R v Yad-Elohim [2018] NZHC 2494
Case: [2018] NZHC 2494
Decision Date: 20 September 2018

CaseChat Overview and Summary

Gabriel Yad-Elohim was found guilty of the murder of Michael Mulholland. The key issue was whether Yad-Elohim was insane at the time of the attack and should be found not guilty by reason of insanity. The court found Yad-Elohim guilty of murder, concluding that he was not rendered incapable of understanding the nature and quality of his actions or of knowing that his actions were morally wrong. The court then considered the appropriate sentence, noting that murder carries a mandatory sentence of life imprisonment unless it would be manifestly unjust to impose that sentence. The court decided that a sentence of life imprisonment was appropriate and imposed a minimum period of imprisonment of 13 years. The court considered the brutality of the attack and the impact on the victim's family but also took into account Yad-Elohim's severe mental disorder, chronic schizophrenia, which contributed to his actions. The court found that a minimum term of imprisonment of 17 years would be manifestly unjust in Yad-Elohim's case due to his mental illness.

Orders