Reekers v R
[2011] NZCA 383
•11 August 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA297/2010 [2011] NZCA 383 |
| BETWEEN JOSEPH MARTIN REEKERS |
| AND THE QUEEN |
| Hearing: 1 August 2011 |
| Court: Ellen France, Heath and Lang JJ |
| Counsel: H D Lawry for Appellant |
| Judgment: 11 August 2011 at 10.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by Lang J)
Introduction
Mr Reekers pleaded guilty to the murder of Marie Jamieson, who was 23 years of age at the date of her death. On 20 April 2010, Stevens J sentenced him to life imprisonment and ordered him to serve a minimum term of 15 years before being eligible to apply for parole.[1] Mr Reekers appeals against the minimum term of imprisonment that the Judge imposed.
Facts
[1] R v Reekers HC Auckland CRI-2008-029-658, 20 April 2010.
Ms Jamieson was reported missing on Monday 12 February 2001. She had gone out with friends two days earlier, on the evening of Saturday 10 February 2001. Enquiries revealed that she had left a bar in central Auckland at about 8.45 pm with the intention of catching a bus to her home in Avondale. Video surveillance footage then depicted her visiting a liquor store and walking past a petrol station, both on New North Road, Kingsland. She was last seen alive when she walked past the petrol station at 9.17 pm on 10 February 2001.
On 19 February 2001 Ms Jamieson’s naked and decomposing body was discovered at the rear of a factory in Ranui. Female clothing, including a skirt and underwear, was discovered nearby. These were subsequently identified as belonging to Ms Jamieson. The body and clothing had been left in a location that was not readily accessible.
The post-mortem examination revealed that Ms Jamieson had suffered three stab wounds to the chest. When the items of clothing were examined, they were found to contain semen stains from which a DNA profile was obtained.
Ms Jamieson’s murder remained unsolved until 2008. In April 2008, Mr Reekers was convicted of theft. Following his conviction he was served with a suspect compulsion order and required to provide a DNA sample to the police. A DNA profile obtained from this sample matched the profile obtained from the semen staining on Ms Jamieson’s clothing.
Enquiries by the police established that, at the time Ms Jamieson was killed, Mr Reekers had been living in a motor camp in West Auckland. He had also previously worked at the factory behind which Ms Jamieson’s body and clothing had been found.
The Henderson police interviewed Mr Reekers on 23 June 2008. At that time he admitted that he had had contact with Ms Jamieson on New North Road around the time she disappeared. He refused to say anything further, however, and was released. When the police in Kaitaia interviewed him again on 26 June 2008, he declined to make any further statement.
After his arrest Mr Reekers was committed for trial in the High Court, but ultimately pleaded guilty on 16 December 2009.
The approach taken in the High Court
Stevens J noted that there was limited evidence regarding the exact sequence of events leading up to, and including, the murder. He thought it was clear, however, that Mr Reekers had picked Ms Jamieson up from New North Road, Kingsland on 10 February 2001. At some stage between 10 and 19 February 2001 he stabbed her at least three times to the chest and either stabbed, or slit, her throat. He then transferred Ms Jamieson’s body to the rear of the factory at Ranui where he left her naked body and clothing.
The Judge noted that the probation report prepared prior to sentencing recorded that Mr Reekers had told the probation officer that he had spent approximately four days with Ms Jamieson prior to the date upon which he killed her. Mr Reekers also told the probation officer that he was an acquaintance of Ms Jamieson’s partner, and that he had met Ms Jamieson on a few occasions prior to 10 February 2001. He said that he and Ms Jamieson had been heavily involved in the consumption of drugs during this period, and that he had killed her following an argument about drugs.
The Crown took issue with these statements, and filed material supporting its submission that it was unlikely that Mr Reekers had ever met Ms Jamieson prior to 10 February 2001. This confirmed that after Ms Jamieson disappeared the police carried out a very extensive investigation into her whereabouts. After they discovered her body, there was a further extensive enquiry into the identity of her killer. During this phase of the enquiry a total of 1,614 persons were identified as having had some connection with Ms Jamieson. Mr Reekers’ name did not emerge during this process.
Mr Reekers first came to the attention of the police in February 2008, when the ESR undertook a familial search in relation to the DNA profile extracted from the semen staining on Ms Jamieson’s clothing. This indicated that the person who killed Ms Jamieson was likely to be a male relative of a person in the database. That person was related to Mr Reekers. The result of the familial search was confirmed following Mr Reekers’ conviction for theft in April 2008, when the police obtained the DNA match that identified him as the person whose semen had been found on Ms Jamieson’s clothing.
After the Crown received the pre-sentence report, the police made further enquiries of Ms Jamieson’s partner and her friends. They were adamant that they did not know Mr Reekers, and that they had never heard of his name until after his arrest in June 2008. When the police showed them photographs of Mr Reekers, they confirmed that they had never met him before. These matters prompted the Judge to record that Mr Reekers’ explanation did not appear to be consistent with the facts that had been presented to the Court.
The Judge noted that the offending was aggravated by the fact that it involved the use of a weapon. He considered that the indignity involved in the manner in which Mr Reekers had disposed of Ms Jamieson’s body was a further aggravating factor, as was the profound and devastating effect of the murder on Ms Jamieson’s family and friends. He considered that, even though Mr Reekers may have been heavily involved in the consumption of methamphetamine at the time of the killing, that did not excuse the infliction of at least three stab wounds together with the injury to the throat.
The aggravating factors led the Judge to select a minimum term of imprisonment of 15 years. He then added an uplift of 12 months imprisonment to reflect Mr Reekers’ extensive list of previous convictions. These included a conviction in 1978 on a charge of rape.
The Judge considered that the only significant mitigating factors were Mr Reekers’ guilty plea, coupled with the remorse that he eventually showed to the victims of his offending. These permitted the Judge to apply a discount of 12 months, thereby producing an end minimum term of imprisonment of 15 years.
Analysis
Section 103(1) of the Sentencing Act 2002 (“the Act”) requires the Court to impose a minimum period of imprisonment whenever it imposes a sentence of life imprisonment on an offender convicted of murder. The length of the minimum term is governed by s 103(2), which provides:
103Imposition of minimum period of imprisonment [or imprisonment without parole] if life imprisonment imposed for murder
…
(2)The minimum term of imprisonment ordered may not be less than 10 years, and must be the minimum term of imprisonment that the court considers necessary to satisfy all or any of the following purposes:—
(a)holding the offender accountable for the harm done to the victim and the community by the offending:
(b)denouncing the conduct in which the offender was involved:
(c)deterring the offender or other persons from committing the same or a similar offence:
(d)protecting the community from the offender.
…
One of the principal grounds advanced on appeal was that the Judge placed considerable emphasis on the fact that Mr Reekers had stabbed or slit Ms Jamiesons’ throat. The Judge based his comments regarding that issue on statements made in the agreed summary of facts filed with the Court before Mr Reekers was sentenced. This referred to information obtained from the post-mortem examination carried out on Ms Jamieson’s body. The summary of facts stated that the examination confirmed that Ms Jamieson had suffered at least three stab wounds to the chest and a possible throat injury. The summary went on to record that the advanced decomposition in the area of Ms Jamieson’s throat “was consistent with her throat having been slit”.
Counsel advised us that Mr Reekers had never agreed with these statements in the summary of facts. He also provided us with a copy of the pathologist’s report in relation to the post-mortem examination. This does not contain any reference to an injury to Ms Jamieson’s throat. For that reason counsel submitted that the Judge was wrong to place any weight on that aspect of the summary of facts.
The Crown responded by pointing out that the statements in the summary to which Mr Reekers takes exception reflect what Mr Reekers had told one of his associates.
Viewing the Judge’s sentencing remarks as a whole, we do not accept that he gave any particular weight to this issue. We do not consider, either, that it could have made any appreciable difference to the end result. The fact that Mr Reekers inflicted no fewer than three stab wounds was significant without more. He did so using a sharp instrument of some description. This meant that the killing was of a brutal nature, and it is likely to have occurred at a time when Ms Jamieson was within Mr Reekers’ control and therefore vulnerable.
The manner in which Mr Reekers disposed of Ms Jamieson’s naked body was also significant. It demonstrated an attitude towards her that can only be described as callous. On their own, we consider that these factors justified a minimum term of imprisonment of more than ten years.
Mr Reekers’ previous convictions also needed to be taken into account.
On 16 October 1978 Mr Reekers and a co-offender were sentenced to five and a half years imprisonment on a charge of raping a young woman at knife point. They were also sentenced for related charges including concurrent sentences of two years imprisonment on a charge of indecent assault. That charge arose out of threats that the two men had made to the complainant’s brother. The nature of the offending is captured in the following passages from the Judge’s sentencing remarks:[2]
You submitted this young woman to gross indecencies. You, Reekers, your behaviour was not much better than animal-like when one reads the depositions and even one portion of it where you concede in your own statement that at one stage during the evening you urinated on the television set in the room. Not even an animal behaves in that fashion.
This woman was raped by both of you. A knife was produced under circumstances which could only indicate to her that if she did not submit she was in danger, otherwise why was it produced? Further, both of you made it perfectly plain both to the woman and her brother what would happen to them if they went anywhere near the authorities. In my view there could have been further charges against you in relation to that but the Crown has not seen fit to do that, therefore it becomes background for sentencing.
[2] R v Stephen SC Auckland T.178/78, 16 October 1978.
The previous conviction for rape assumes significance in the present context for several reasons. First, it demonstrates that Mr Reekers was prepared on an earlier occasion to subject a female to violence using, on that occasion, a knife as a weapon. Second, it demonstrates that the sentence of imprisonment that he received in 1978 has not deterred him from further extremely serious violent offending against a woman using a weapon. Third, it suggests that the prediction in the pre-sentence report that Mr Reekers remains at high risk of offending in the future is likely to be accurate.
This factor obviously affected the minimum term of imprisonment that the Court was required to impose upon him in relation to the present offending. The minimum term needed to go further than to reflect the Court’s denunciation of his actions in killing Ms Jamieson, and the need to hold him accountable for those actions. It also needed to be of sufficient length to act as a real deterrent to Mr Reekers in the future, and to protect the community from him for a substantial period.
We agree with counsel for Mr Reekers that it may have been possible for the Judge to select a minimum term of less than 15 years before taking into account Mr Reekers’ previous convictions. The real issue in the present case does not, however, relate to the correctness in mathematical terms of the process by which the Judge constructed the minimum term. Rather, it relates to the appropriateness of the end result having regard to the purposes prescribed by s 103.
The minimum term also needed to be consistent with the minimum terms of imprisonment imposed in other broadly similar cases. In this context the Judge had regard to R v Hoko, R v Abraham and R v Wallace.[3]Minimum terms of imprisonment of 15 years, 13 years and 18 years had been imposed in those cases. We agree with counsel for Mr Reekers that the facts in each of the cases were different in some respects to those in the present case. Counsel also placed emphasis on the fact that in Abraham the offender had killed a woman who was a complete stranger to him. Like the Judge, however, we cannot place weight on Mr Reekers’ unsworn and unsubstantiated claims that he knew Ms Jamieson and spent several days in her company before her death. He has never provided any details about the circumstances in which he came into contact with Ms Jamieson on the night of 10 February 2001. There must therefore remain a concern that he had never met her prior to that night.
[3]R v Hoko (2003) 20 CRNZ 464 (CA); R v Abraham CA139/03, 28 October 2003; and R v Wallace HC New Plymouth CRI-2006-043-292, 5 October 2007.
The relevance of the cases to which the Judge had regard lies in the fact that each involved the brutal killing of a woman. They demonstrate that in such circumstances the Court has been prepared to impose minimum terms of imprisonment not dissimilar to that imposed upon Mr Reekers in the present case.
All of the purposes prescribed by s 103(2) were engaged in the present case. The need to impose a minimum term that amounted to a real deterrent for Mr Reekers and the need to protect the community were particularly important. For those reasons we have concluded that a minimum term of 16 years imprisonment was within the range available to the Judge.
Counsel for Mr Reekers did not take issue with the level of discount that the Judge applied to reflect the fact that Mr Reekers pleaded guilty and thereby spared Ms Jamieson’s family the ordeal of a contested trial. It follows that the Judge was justified in imposing an end minimum term of imprisonment of 15 years.
Result
The appeal is dismissed.
Solicitors:
Duff Lawry Richmond Lawyers Limited, Auckland for Appellant
Crown Solicitor, Auckland for Respondent
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