The King v Joshua Dylan Morris-Bamber & Alana Jane Bamber
[2022] NZHC 3407
•14 December 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-009-9002
[2022] NZHC 3407
THE KING v
JOSHUA DYLAN MORRIS-BAMBER ALANA JANE BAMBER
Hearing: 14 December 2022 Appearances:
A R McRae for the Crown
M A Stevens KC and A C Kelland for the Defendant Morris- Bamber
K H Cook for the Defendant Bamber
Date:
14 December 2022
SENTENCING REMARKS OF NATION J
[1] First of all, I acknowledge those who are in Court. The family and friends of Tony Waldron. I appreciate that you are here because of your love and respect for Tony and to demonstrate that through being involved in all the challenges of the Court process.
[2] I know there will also be family and friends in the courtroom of Joshua Morris- Bamber and Alana Bamber. I acknowledge the value of the support you provide for members of your family, support which is going to be all the more important given the sentences that they know I must impose. That support will be particularly important
R v MORRIS-BAMBER & BAMBER [2022] NZHC 3407 [14 December 2022]
for the two young children of Tony Waldron and Alana Bamber as they now have to grow up without the support of either parent.
[3] Before today, I had read the victim impact statements, which have also been read in Court, and the submissions for the Crown, for you Mr Morris-Bamber and for you Ms Bamber. I have considered other cases which are relevant to what I must do. I have been reminded today powerfully of the important points in the submissions which the lawyers made. I have considered all that material in deciding what your sentences must be.
[4] But, I begin by acknowledging the huge loss that Tony Waldron’s family and friends have suffered through his death. I know that no sentence I can impose will compensate for that and that is not what I am trying to do. I must impose the sentences that are appropriate given my understanding of the facts, in light of the jury’s verdicts, what Parliament has prescribed through our Sentencing Act and what Judges have done in other similar cases.
[5] I need to set out the basis on which you are being sentenced, the facts or the essence of them.
[6] In September 2019, you Ms Bamber and Tony Waldron were living on a dairy farm in mid Canterbury, near the coast and about 7.7 kms from Rakaia. There were difficulties in your marriage. Tony Waldron had support from a woman who had been a long time friend to him and then to both of you. You believed that they were having an affair.
[7] In conversations you had with three different people who gave evidence at your trial, you indicated that you hated Mr Waldron because of this and were extremely angry towards him. You told one of them that you wanted to make him suffer, that he was lucky you hadn’t killed him. You told a boss on the farm that you would kill him if it was true.
[8] On the night of 13 September 2019, you were videoed when having drinks at a small gathering of people at a nearby dairy worker’s home. Pictures of you with
another man at the gathering were sent to Tony Waldron. He told you he wanted you to leave the home and not come back.
[9] On Saturday 14 September 2019, you did return to the home. Mr Waldron wanted you to leave. You demanded an apology from him. That afternoon there was a physical altercation between the two of you in the home. You called emergency services. Ambulance and Police arrived. To the ambulance officers, you alleged he had violently assaulted you in a way that would have caused you significant injuries and pain. The ambulance officers and a doctor who subsequently saw you at Christchurch Hospital said what they observed of your injuries was not consistent with Mr Waldron having attacked you in the way you described. However, as a result, the Police served a Police safety order on Tony Waldron and both you and he accepted you could not be in each other’s presence after that time.
[10] You Ms Bamber and your children went to stay in Christchurch with your cousin Izak and his partner. Izak and Joshua Morris-Bamber are brothers. At that time, you Ms Bamber and Joshua Morris-Bamber had nothing to do with each other. He had taken a dislike to you about two years previously as a result of things you had said within the family and the way he thought you had created problems for him when you stayed in his home with him for a few months.
[11] Mr Morris-Bamber, the home you were living in belonged to your grandfather. The flat in Linwood, which you Ms Bamber and your two children were sharing with Izak and his partner and their young child, was very small and crowded. Your grandfather wanted Ms Bamber and her children to be able to live with you Mr Morris- Bamber until they could move to Twizel or Timaru. Although you agreed to allow it, this was not something you welcomed or were comfortable with. Your distrust of your cousin Ms Bamber was shown by your putting a security camera in your bedroom in anticipation of her moving in.
[12] On Monday 16 September 2019, Izak contacted you Mr Morris-Bamber and asked for your help to go with Izak and his partner to Tony Waldron’s home to collect Ms Bamber’s car and some items from the home for her and the children. In seeking your help, Izak told you Mr Morris-Bamber that Alana said Tony had done a number
on Alana’s ribs. Tony Waldron cooperated in making sure people could come to his home and collect the car and various items. Mr Morris-Bamber, you went to the property with Izak and his partner. The three of you were at the home for about an hour. You went into the house to collect items. You went into the master bedroom to help collect a mattress from that room.
[13] On 17 September 2019, you Mr Morris-Bamber were working as a chef at a Christchurch Hotel. You finished work about 8.00 pm and then socialised with two fellow workers. One of those was a woman who you were particularly friendly with. I am satisfied you wanted to be in a relationship with her. During the time you were socialising with her and the other work mate, I am satisfied you became jealous at the way she was associating with the other man.
[14] The evidence at trial established that your two work mates dropped you off back at the hotel at around 10.00 pm on 17 September 2019. There was then a Facebook messaging exchange between you and your woman friend. It was clear from that messaging that you had acted towards her in a manner that was consistent with you being resentful and jealous at the way you thought she was associating with your other work mate.
[15] Over the course of that evening, I am satisfied that you Mr Morris-Bamber had contact with Alana Bamber during which time she would have spoken to you further about her belief that Tony Waldron had been having an affair and would have displayed the anger she had towards him, the way she had in conversations with others and in the same way she had demonstrated through the exaggerated allegations of an assault she had made as to the incident on 14 September 2019. That engagement with her probably occurred when you went to the Linwood address that Tuesday evening, an address you said, in your second interview with the Police, that you had visited. A visit which would also have been consistent with the Police identifying your vehicle as being on Gloucester Street at 10.36 pm on 17 September 2019, the same vehicle the Police had identified as being at various intersections and then travelling to the Hornby area on 17 September 2019.
[16] At approximately 11.00 pm, Mr Morris-Bamber you sent a message to Izak getting him to tell Ms Bamber to unblock you from Facebook. Around that time, you sent a Facebook message to Ms Bamber saying “what is the address I need to get some anger out”.
[17] At 11.14 pm, Mr Morris-Bamber you sent a Facebook message to Ms Bamber saying “shit deleted address”. Ms Bamber replied 50 Gardiner’s Road, RD 11, Rakaia.
[18] At about 11.16 pm, you drove to your friend’s address in Hornby, asking if you could drop in on her just as you were about to arrive. As you arrived, the other work mate was leaving the address. I am satisfied from your Facebook messages that you believed the fact he was there meant he was associating with your friend in the way that you resented. You were at that address with your friend for 40 minutes until you left about 12.04 am. She made it clear to you that you could be friends, but she did not want to have a relationship in the way you wanted.
[19] You described it as you and your friend having a tiff but you also said you had become angry and frustrated with how things were between the two of you. In messaging between you and your friend, she was trying to get you to tell her what was wrong, you rebuffed her, telling her it’s not your shit, it’s my shit. Having read all that messaging and having heard the woman give evidence, I am satisfied you were not happy with the way it ended.
[20] You Ms Bamber, your cousin and his partner were all by then awake and out of bed in the Linwood flat. Your cousin Izak left the address and started driving towards Rakaia, hoping he would be able to stop you doing something that, as he put it, would ruin your life Mr Morris-Bamber. Between 11.15 pm and 12.19 am there were Facebook messages sent through cell phones in which Izak’s partner made it clear she wanted Izak to come back and not be involved in what was going to happen.
[21] In those exchanges, Izak asked “what does Alana think”. You Ms Bamber personally sent a message to Izak on his partner’s phone. You said “she thinks better 1 life than 2 and if you get in the middle of it you will get hurt. Joshua doesn’t want you to know, he will be angry and with how angry he is right now, you will get hurt”.
Izak sent a message to his partner “what do I do? Do I go and try to stop him or come home”. His partner said it was not about what she thinks and he needed to put his family first. Ms Bamber, you then sent a message to Izak “I think come home. There is no stopping him. You know this. I believe he will get in and out cleanly. But if he finds out I told you we will all cop it. Plus he’s got a 15 minute head start and a way faster car. It’s too late. Better 1 life than 2.”
[22] Izak came back. Mr Morris-Bamber, you travelled on to Tony Waldron’s house, arriving there about 12.57 am. You were at that address for only about five minutes. Tony Waldron was soundly asleep in his bed. The jury was satisfied beyond reasonable doubt that, at that time, you entered the property, dealt with the dogs as you needed to, inflicted three and possibly more blows to Mr Waldron’s head as he was asleep, fracturing his skull on the right side - a 4 x 2 cm fracture, breaking his cheek bone and causing a fracture to his jaw, as well as impacting his neck. The blow to the skull would have rendered him immediately unconscious. The injuries were fatal. Whoever inflicted such injuries had to have a murderous intent in one of the ways required for the assault to be murder. Mr Morris-Bamber, your attack on Mr Waldron was on a sleeping man, vulnerable and defenceless.
[23] Mr Morris-Bamber, you then sped away from the scene. On travelling back to Christchurch, you stopped for a time after crossing the Rakaia bridge and managed to hide items somewhere there, items which might have linked you forensically to the crime. You were back in Christchurch filling up with petrol at 2.00 am on 18 September 2019. After that, as arranged in advance, you went to the Linwood flat where Ms Bamber was staying. You met with her at the end of the drive, away from your brother and his partner. You made it clear that she must delete all messaging on her phone, and she did so.
[24] On 20 September 2019, there was a report on a website that a farm worker in the Rakaia area had been arrested during the investigation of the homicide.
[25] On 21 September 2019 at around 2.45 am, you Mr Morris-Bamber drove to the Rakaia bridge along State Highway 1. I am satisfied that, in the early hours of the morning on 21 September 2019, you collected items that you must have disposed of
there and then drove to an area of trees and scrub in an area known as Bankside to the west of the Main South Road. You successfully managing to hide from the Police items that would have linked you to the homicide. The Police did not search the area you went to until 26 September 2019.
[26] On the night of 25 September 2019, you went to Twizel for Tony Waldron’s funeral. You arrived in the early hours of the morning. While in Twizel, when you met up with Ms Bamber, you were in tears. You also told your brother and his partner that they would not want to know why you had gone to Rakaia on the night Tony Waldron was killed. By then, you knew you had become a suspect for Mr Waldron’s murder. You probably then realised the trouble you were in. Perhaps you began to appreciate the suffering and harm you had caused and what you had done.
[27] It would not be unusual for a wife to become hateful and even vengeful towards her husband when thinking they were involved in an affair and for a wife with such feelings to express, in an extravagant manner, the way in which a husband had been unfaithful to her, as she believed. Most people hearing such sentiments would in no way allow themselves to become the instrument for wrecking such vengeance.
[28] The tragedy of this whole situation is that, through family connections, Joshua Morris-Bamber was exposed to your anger Ms Bamber when, for his own reasons, he also was angry and wanted to take that anger out on someone else. Tragically for Tony Waldron and your two children, and actually for both you Ms Bamber and Mr Morris- Bamber, the person who latched on to your anger and desire for vengeance was Joshua Morris-Bamber. It is because of all this that I must sentence you now, both of you, for murder.
[29]Mr Morris-Bamber, I begin with you.
[30] Section 102 of the Sentencing Act 2002 requires me to sentence you to life imprisonment unless that sentence would be manifestly unjust. Your counsel realistically accepts, as you do, that you must be sentenced to life imprisonment given the jury’s verdict.
[31] It is important that everyone in this courtroom understands a sentence of life imprisonment is a sentence for life. You will only ever be released from that sentence on parole if the Parole Board considers it will be safe for you to be in the community. If you are released on parole, you can be recalled to prison at any time the Parole Board considers you have again become a risk to others.
[32] Section 103 of the Sentencing Act requires me to impose a minimum non- parole period for all or any of the following purposes:
(a) holding you accountable for the harm you have done;
(b) denouncing your conduct;
(c) deterring you or others from the same or a similar offence; and
(d) protecting the community from you.
[33] Section 104 of the Sentencing Act says, in certain circumstances, I must impose a minimum period of imprisonment of at least 17 years unless satisfied it would be manifestly unjust to do so and, the Crown say, a minimum non-parole period of between 18 and 19 years would be appropriate.
[34] I have read and considered the facts and approach taken by the courts in cases referred to me by the Crown both in written submissions and as mentioned this morning by Mr McRae.1
[35] The Crown says s 104 applies because of four particular criteria referred to in s 104:
1. the murder involved calculated or lengthy planning;2
2. it involved unlawful entry/unlawful presence in a dwelling place;3
1 R v Hekkenberg HC Nelson CRI-2005-004-4128, 10 May 2007; Carroll v R [2018] NZCA 320; Skilling v R [2011] NZCA 462; R v Leuluaialii & Kopelani HC Auckland CRI-2003-092-35815, 11 February 2005; R v Afamasaga [2014] NZHC 2142; Uhrle v R [2015] NZCA 412; R v Lewis [2018] NZHC 1877; Winders v R [2018] NZCA 277; R v Tu [2016] NZHC 1780.
2 Section 104(1)(b).
3 Section 104(1)(c).
3. the murder involved a high level of brutality, cruelty, depravity or callousness;4 and
4. the murder involved a man when he was particularly vulnerable.5
[36] An offender’s conduct after the murder may be taken into account in assessing whether the section applies. The mere presence of one of the listed factors will not automatically give rise to the 17 year minimum term in every case. Unless the threshold is triggered in specifically defined circumstances, the presence of the aggravating factor must reflect a clear margin above the extent to which the feature would be likely to ordinarily arise in the course of a murder. The factors must reach the threshold when measured individually.
[37] There was planning and premeditation. It began with the contact you had with Ms Bamber on the night, your obtaining Mr Waldron’s address from her, then driving from Christchurch to Mr Waldron’s home in the middle of the night, and going into the home armed with the weapon with which you were able to inflict horrendous injuries to Mr Waldron’s head. Despite that, I do not consider there was the calculated premeditation and planning to the level which brings s 104(1)(b) into play.
[38] There was something irrational about you wanting to do Mr Waldron serious harm. Previously, you had very little contact with him. There were no issues between you and him personally.
[39] Your anger and frustration about what you thought was happening between your friend and another workmate was part of your wanting to take your anger out on someone. But, at the same time, I have no doubt that you were exposed to Ms Bamber’s anger and her feelings towards Mr Waldron. It was in that context that you obtained the address from Ms Bamber and discussed with her what you were going to do.
[40] But, you did not proceed from that point direct to Rakaia. You first went to your friend’s address at Hornby. With all the evidence I heard, I consider it possible
4 Section 104(1)(e).
5 Section 104(1)(g).
that, if she had been more receptive to what you wanted at that time, your anger might well have subsided and you would have gone no further. In fact, when she made it clear to you that she did not want to be in a relationship with you, your frustration and anger continued. You drove on to Rakaia, so angry that those who knew you thought there would be no prospect of stopping you from what you were going to do. But, the way you killed Mr Waldron was brutally simple and did not involve careful planning. Afterwards, you were able to get rid of items that would have forensically linked you to the murder. You made sure Ms Bamber and others deleted Facebook messages and so on from phones. That was consistent with you being knowledgeable and clever in what you did, but the steps you took immediately afterwards did not involve careful planning and were not sophisticated.
[41] There was an element of home invasion. This murder was committed in Mr Waldron’s home. You had no right to enter that home around midnight for the purpose of bashing Mr Waldron with murderous intent. At the time you did this, you knew Alana Bamber was not living at the address. On the Monday night, when you, Izak and Izak’s partner went to the address to collect Ms Bamber’s belongings, you all first of all arranged with Mr Waldron to do this. Nevertheless, it is relevant that Mr Waldron’s home had also been Alana Bamber’s home. She understood you were going there and, in a sense, had authorised your entry into the home. Had you gone into the home, even unannounced, just to talk with Mr Waldron, it would probably not be thought that your entry into the home was unlawful.
[42] Again, I find this threshold has not been established to the degree required for s 104(1)(c) to apply.
[43] I next consider whether the murder was committed with a high level of brutality or callousness. I acknowledge how hard it must be for family and friends of a murdered man to hear a Judge even discuss whether a murder, such as this, has the level of brutality or callousness to bring s 104 into play. Every murder is brutal and callous but, as a Judge, what I have to decide is whether the brutality or callousness in this particular instance is of such a high level as to bring this section into play. And, this morning, Mr McRae suggested that the way in which this had been addressed by the Crown in written submissions needed to be considered carefully by the Court.
[44] Mr Waldron was killed when he was asleep, through ferocious blows to the head. The first blow probably rendered him immediately unconscious and, of itself, was fatal. But, decisions made in other cases show that, the fact someone is killed with multiple blows to the head or stab wounds, does not necessarily mean there will be the level of brutality required for s 104(1)(e) to apply. As an example, I was referred to the case of R v Prakash, which counsel also referred to this morning. There, a 42 year old man bashed the 64 year old woman he lived with, he struck her at least eight times to the skull with a hockey stick, beginning when she was seated at the table with her back to him.6 In that case, both the Crown and the defence agreed that the statutory threshold for the imposition of a mandatory minimum period of imprisonment of 17 years did not apply.7
[45] Callousness has been defined as a “hardened state of mind, a “want of feeling and insensibility” and a “numbness of the soul”.8 And the Crown today highlighted the fact that perhaps there were elements of that in the mere fact Mr Morris-Bamber that you involved yourself in the killing of a person who really you had no personal animosity towards.
[46] Mr Morris-Bamber, you left Mr Waldron unconscious in his bed with head injuries that you must have known would be fatal. You did nothing to obtain help for him. On the return travel to Christchurch, you carefully got rid of items that would have linked you forensically to the murder. You made sure that others deleted cell phone messages, a record of messages. Because you deny any involvement in the murder, there is no suggestion in the pre-sentence report that you have been able to express any remorse for what happened. The only evidence I heard that might suggest you have any remorse for what you have done or any understanding of the harm you did was evidence as to your being in tears when you were in Twizel for Mr Waldron’s funeral, although those tears could also have been because of the predicament you knew you would be facing.
6 R v Prakash [2022] NZHC 1647.
7 Price v R [2021] NZCA 568; R v Gossett [2019] NZHC 1366.
8 R v Mason [2012] NZHC 1849 at [44]; R v Christison [2013] NZHC 2813 at [38].
[47] The fact you were clever and calculating in the way you got rid of evidence is not however sufficient to show you killed Tony Waldron with the sort of callousness that brings s 104(1)(e) into play.
[48] Mr Waldron was vulnerable. You went into his home. He was asleep and, at midnight, this was to be expected. There was no one else in the home with him. He was not in a position to defend himself at all and there was no evidence that he did so. He was killed where he was lying asleep. Mr Waldron’s vulnerability was however no greater than for a number of victims who are killed in situations where they have little or no ability to defend themselves or were taken by surprise. He was not particularly vulnerable in the way, for instance, a young child, very old person or severely disabled person can be. And, when you entered the home, you could not have been sure he would not wake and defend himself.
[49] So, I find that the threshold for s 104 to apply in each of the respects contended for by the Crown has not been met. Section 104 thus does not mandate a minimum period of imprisonment of 17 years.
[50] As I said, on the basis s 104 did apply, the Crown suggested the minimum period of imprisonment for you should be 18 to 19 years. Your counsel suggested the minimum period should be around 14 years.
[51] I have considered the facts and approach taken in cases that were put before me by your counsel.9
[52] I must consider what the minimum period of imprisonment has to be for the purposes referred to earlier. To do that, I must first consider the seriousness of your offending and your culpability or blameworthiness. I do that by reference to the aggravating features of your offending and, if any, the mitigating features of your offending. There are no mitigating features.
9 R v Prakash, above n 6; Price v R, above n 7; R v Uluakiola HC Auckland CRI-2005-952-2580, 17 March 2006; R v Frost [2008] NZCA 406.
[53] The aggravating features include those matters I have already discussed. Tony Waldron was killed in his own home, a place where he should have been safe.
[54] The murder was brutal. It involved the use of a weapon, a seriously aggravating feature of a homicide.
[55] There was a real degree of premeditation. This was not a killing which occurred spontaneously. You drove to Rakaia in the middle of the night with a murderous intent.
[56] Every murder results in the huge harm of a person’s death. In this case, the murder has led to the death of a person who was a valued employee on the farm where he worked, a good friend to a number of people and, importantly, a man who was a good father to his two young children. The loss they have suffered will last a lifetime.
[57] I adopt a starting point minimum period of imprisonment of 15 years. But, I must then consider aggravating matters relating to you personally.
[58] On New Year’s Eve 2009, you were 16. At about 4.30 am, a young woman, who had been socialising in Twizel, asked you for directions to the main road so she could walk to where she was staying. You offered to walk with her to where she was staying and did so. When she had reached her home, she thanked you. You started walking back to Twizel. But, you then turned around, came up behind her, pushed her two or three times in the head, raped her and sexually violated her. When you had finished, you punched her two or three times to the head and grabbed her handbag. After pleading guilty, you were sentenced to imprisonment for four years and eight months.
[59] Your counsel said that, given your age and sentence, this offending was no longer of any consequence, that it should be treated as being spent. I do not accept that.
[60] From what I know of the summary of facts for that offending, it was on an occasion when you were able to appear concerned and indeed kind towards someone,
but then, without any encouragement, were seriously violent towards your victim, not just through raping her but also through punches to the head, associated with a robbery. No doubt the victim had no idea you would be the sort of person who would do this, probably in the same way that the friends who you work with at the hotel would have had no idea that you would be the sort of person who could kill Mr Waldron in the way the jury found you did.
[61] The pre-sentence report referred to you as essentially minimising and not accepting responsibility for the offending in 2010. The report said, based on your previous offending, you would be assessed as having a low risk of reoffending and a medium risk of harm. However, the report said the nature and seriousness of this offending shows your risk has escalated considerably. You deny the murder so, at this point, are in no position to acknowledge how you came to kill Mr Waldron or what you need to do to avoid a similar offence in the future. That will be something the Parole Board has to be most mindful of when they consider whether you should ever be granted parole. They will also have to be mindful of the way you were able to coolly engage with others in the hours after the murder when you went to the service station, met up with Ms Bamber, bought clothes, lied to the Police in saying you had never left Christchurch on the night, followed media reports and then, when you thought it safe to do so, travelled in the early hours of the morning to Rakaia to move items that might have linked you to the murder. The Parole Board will also have to be mindful of how you were able to give evidence in your trial, denying any involvement in the killing of Tony Waldron, evidence which the jury obviously found was untrue.
[62] I consider, with that previous offending, protection of the public and the purpose of deterrence requires the minimum period of imprisonment for you to be increased to 16 years.
[63]I turn now to you Ms Bamber.
[64] As you were quite entitled to, you pleaded not guilty to the charge. Your defence at trial was that you had no knowledge, understanding or agreement with Mr Morris-Bamber that he would go to Rakaia late at night and physically harm your husband. The jury’s verdict is consistent with them finding that what you said in the
text messages as Mr Morris-Bamber was travelling to Rakaia reflected both what you knew was then going to happen and what would result from that, and the assistance you gave.
[65] I consider that, on all the evidence, the jury’s verdict could have been based on either or both of ss 66(1) and 66(2) of the Crimes Act 1961. The jury could have been sure that Ms Bamber:
(a) you intentionally aided, incited or counselling Mr Morris-Bamber to commit murder or to physically assault and hurt Mr Waldron;
(b) you knew that he intended to do that in a way that was a substantial and operative cause of Mr Waldron’s death; and
(c) you knew he had murderous intent in either of the two ways necessary to be guilty of murder.
[66]On the evidence, the jury could also have found you guilty on the basis that:
(a) you and Mr Morris-Bamber had a shared understanding or agreement that Mr Morris-Bamber would physically assault and hurt Mr Waldron;
(b) you agreed to help each other to achieve that goal;
(c) Mr Morris-Bamber’s assault was a substantial and operative cause of death; and
(d) you knew and intended that Mr Morris-Bamber’s killing of Mr Waldron with murderous intent was a probable consequence of him carrying out your common goal of him assaulting Mr Waldron.
[67] Mr Cook has argued comprehensively for you that, in applying s 102 of the Sentencing Act, I should find that it would be a manifest injustice for you to be sentenced to life imprisonment. He acknowledges that such a conclusion is likely to be reached only in exceptional cases.10 He suggested, as in certain other cases, it was
10 Referring to the judgment of Elias CJ in R v Rapira [2003] 3 NZLR 794 (CA).
your limited involvement in the murder that requires me to treat your situation as being so exceptional as to avoid the need for a life sentence.11
[68]I have read and considered the cases your counsel referred to me.
[69] One of the cases Mr Cook referred to was Cunnard. As Mr Cook noted, the Court of Appeal there believed that a significant aspect of the Judge’s conclusion was that the principal’s conduct alone was the direct or operative cause of the death of the victim. The Judge was satisfied that Mr Cunnard’s part in the victim’s murder was peripheral and indirect.
[70] R v Innes involved a murder where Mr Innes had gone to a property intending to obtain drugs. Mr Innes knocked on the door. The two men who had been in the house came outside. Mr Innes left the scene. Mr Baker then went to the door, tried to get in and, in doing so, stabbed one of the men inside. The trial Judge accepted that Mr Innes’ participation had been only through knocking on the door and attracting the people to come outside, that this was all for the purpose of obtaining drugs and, in the Judge’s view, not as part of a plan that led to his actually being killed.
[71] In Madams, in deciding to avoid a life sentence for an offender who had been found guilty as a party, the Judge noted “there is no doubt that Tyrone William was the principal offender and he went much further with his violence than any of the rest of you intended or wanted”. It was in those circumstances the Judge considered a sentence of life imprisonment for the party’s actual role as compared with that of the principal offender would be a “harsh outcome”.12
[72] Mr Cook submitted that Mr Morris-Bamber’s anger had been engendered by what was happening with a work colleague, he suggested, quite independently of your involvement. He suggested Mr Morris-Bamber had driven a significant distance to Rakaia where he bludgeoned Mr Waldron to death without assistance in terms of weapons or instructions, and that you were not present during the actual murder. Mr Cook suggested your limited involvement in the offending means that your culpability
11 Referring to R v Cunnard [2014] NZCA 138; R v Innes [2014] NZHC 2780; R v Madams [2017] NZHC 81.
12 R v Madams, above n 11, at [97].
was far lower than Mr Morris-Bamber’s and that must be recognised through a significant difference in sentence, namely, you not being sentenced to life imprisonment.
[73] I do not accept that analysis of your involvement. Mr Morris-Bamber may have become angry and frustrated with his perception as to where things had got to with his work mate but it was not that anger which caused him to drive to Rakaia and kill Mr Waldron. That only happened because of the way, I am satisfied, Ms Bamber you conveyed to Mr Morris-Bamber your anger towards Mr Waldron. I am satisfied that, before Mr Morris-Bamber left his friend’s address at Hornby and headed towards Rakaia, you had talked with Mr Morris-Bamber about what he was going to do in sufficient detail to know that he was extremely angry and what he was intending to do with that anger. Your knowledge of that did not stem just from seeing a message in which he said “I need to get some anger out”. You had sufficient knowledge of what he was going to do for you to say to Izak, in the exchanges that took place between Izak and his partner, “Joshua doesn’t want you to know, he will be angry and with how angry he is right now, you will get hurt”.
[74] You had discussed with him what you both knew he was going to do to such an extent that you could say “there is no stopping him. You know this. I believe he will get in and out cleanly.”
[75] You knew what he was going to do and encouraged him with what he was going to do. You knew that, at the very least, he was going to seriously bash Tony Waldron, seriously hurt him, but also that Tony Waldron could be killed. So, in the messaging you said to Izak, in saying that he should not try to stop Mr Morris-Bamber, you said “Better 1 life than 2 and if you get in the middle of it you will get hurt”.
[76] The jury was obviously sure that you incited Mr Morris-Bamber to murder Mr Waldron and I accept that you did.
[77] You also assisted him in ways that were crucial to his being able to commit this murder. Importantly, on two occasions, you gave him the address when he needed it, so he could use Google to drive to the address. Without being able to use Google and
having the address, it would have been difficult at that time of night and in that country area for Mr Morris-Bamber to have found Mr Waldron’s home. You gave him the address, at least the second time, after he sent you the Facebook message saying “shit deleted the address”, when you were at Izak’s house. You could have responded to that message by saying – forget about it, come back. You didn’t. You helped him by giving him the address.
[78] Later, when Izak was wanting to go to the address to stop what he knew Mr Morris-Bamber was going to do, you told Izak to give up, to let happen what you knew was going to happen.
[79] The assistance you gave to Mr Morris-Bamber was not fleeting. As he requested, you deleted messaging that was on your phone. You had Izak and his partner delete messaging on their phones. You arranged with Mr Morris-Bamber to meet with him after he returned to Christchurch and you did that by leaving home and going to the end of the driveway so no one else in the house would know what you were doing.
[80] At about that time, by way of a message, you told a friend it would be easier if he, Mr Waldron, ODed or something and was just gone, which may happen.
[81] Some days later, at the time of the funeral in Twizel, you spoke with Mr Morris- Bamber in ways that indicated you both knew what he had done, in ways no one else in the family wanted to believe.
[82] In their submissions, counsel for Mr Morris-Bamber referred to you incentivising Mr Morris-Bamber to do what he did and your request to see Mr Morris- Bamber when he returned from Rakaia as indicating that you had an active interest in what had occurred in Rakaia. I agree with that submission.
[83] But for your involvement with Mr Morris-Bamber on the night of this murder, I am sure that Mr Morris-Bamber would not have travelled to Rakaia and would not have killed Mr Waldron.
[84]So, you must be sentenced to life imprisonment.
[85] I have found the requirements of s 104 do not require a minimum period of imprisonment of 17 years for Mr Morris-Bamber, so obviously s 104 does not apply in sentencing you Ms Bamber. The Crown accepted that, even if it had applied for Mr Morris-Bamber, it would have been manifestly unjust for it to apply to you.
[86] Your counsel suggested that, if you have to receive a sentence of life imprisonment, the minimum period of imprisonment should be the minimum in the Sentencing Act of 10 years. The Crown suggest the minimum should be 13 or 14 years. I have read and carefully considered the cases both Mr Cook and the Crown referred to.
[87] The aggravating features of the murder to which you were a party remain as they were for Mr Morris-Bamber but I do need to recognise, as the Crown does, that your role in the murder was more limited. You were not present at the home when Mr Morris-Bamber went into it. You did not hear, see or encourage him in the actual blows he struck.
[88] Perhaps there is a possibility that, had you been present when Mr Morris- Bamber got to the home, you would have thought for a moment about what was going to happen and would have tried to do something to stop him killing the father of your two children. That is only a possibility. You must have had some second thoughts about what you knew was going to happen earlier in the evening. Earlier, you told Izak to go and stop Mr Morris-Bamber. That showed you knew what he was going to do but it was after that that you again gave Mr Morris-Bamber Mr Waldron’s address. It was after that that, in the texts, you told Izak he should come home and not try to intervene. Also after that, you did nothing to warn Tony Waldron of what you knew was going to happen or, for instance, to tell his co-worker who lived nearby that she should do something to stop what you knew was going to happen, although I acknowledge that your failure to do those things could not amount to active assistance.
[89] I nevertheless recognise the more limited involvement you had in the actual killing by adopting a starting point minimum period of imprisonment of 13 and a half years.
[90] Your counsel sought a further reduction in the minimum period on account of what he suggested were mitigating matters relating to you personally. In a number of instances, the basis on which certain credits are sought has not been adequately established. Much of the information relied on was included in a report obtained in October 2021 for the purpose of s 27 of the Sentencing Act. So, that report was obtained before the trial. The report writer acknowledged it was primarily based on information disclosed by you Ms Bamber.
[91] The problem I have is that, during the trial, I heard evidence which indicated Ms Bamber you were capable of telling extensive lies when you thought it would be of benefit to you. In a number of instances, the information you gave to the report writer was inconsistent with what the report writer was told by other people or with evidence I heard at trial. So, for instance, the report writer recounted that you had told her, near the time of Mr Waldron’s death, you had gone to a party with other dairy farmers and was photographed standing next to a man. You said Mr Waldron saw this picture and accused you of flirting. You told the report writer that you denied doing this and said it hurt to be accused of this. In fact, there was evidence at the trial that this was exactly what you were doing. You were not photographed just standing next to a man. There was evidence of more than flirting.
[92] You told the report writer that, after this, Mr Waldron had lashed out at you, punching you repeatedly. You gave the report writer a description of that incident, consistent with allegations you made to the Police and to the ambulance people. Allegations which were not consistent with what the ambulance officer and a doctor later observed.
[93] To the report writer, you described Mr Waldron as being a good father but an average husband. Your mother told the report writer that Mr Waldron was a loving person. He loved your mother, her husband and their children. Your mother said he loved you Ms Bamber and your children.
[94] To the probation officer, who did the pre-sentence report, you were tearful when discussing your relationship with Mr Waldron, described him as your best friend and said you were continuing to grieve his loss.
[95] Your allegations that Mr Waldron had assaulted you in the days before his death surprised and shocked your mother. She told the report writer that at no time previously had she ever known Mr Waldron to be violent towards you. Your father acknowledged to the report writer that there was often a lot of drama in your relationships. A friend said the same thing.
[96] The report writer talked of you suffering significant trauma as a teenager and with earlier partners, and said you had been diagnosed with post traumatic stress disorder as well as anxiety and depression. The report writer did not obtain any independent verification of this from medical records. A GP provided a letter to your lawyer of 5 November 2021. Included in that letter was a paragraph from an assessment in August 2017 by a psychiatrist. The psychiatrist said you had presented with a complex mix of symptoms on a background of multiple life traumas but said “Alana’s distress, way of presenting information and the sheer volume of information to be gathered meant that a three hour assessment was not adequate to fully diagnose, formulate and provide treatment recommendations in this case”. So, it would seem there was no diagnosis.
[97] You grew up in a family where you had close, loving relationships with your parents and grandparents.
[98] The report writer referred to you suffering childhood bullying when at school but acknowledged that research was yet to establish a direct link between such bullying and criminality.
[99] There was reference to you having previously experienced inter-partner violence, that being associated with physical and mental health problems, but there was nothing in the information before me that explained how that could have caused you to incite, encourage and assist someone in the murder of your husband, at a time when he was no threat to you and was a loving father to your children.
[100] The s 27 report referred to your expressions of remorse, of you being devastated by Mr Waldron’s death and of missing him every day. Those expression were not consistent with what I learnt during the trial of your actions in the days after you knew Mr Waldron had been killed. The pre-sentence report said that, throughout your interview with the probation officer, it was evident you did not accept the guilty verdict and offered no remorse. There is no evidence that you accept, even unwittingly, that what you did encouraged and assisted Mr Morris-Bamber to kill Mr Waldron.
[101] Your counsel asked me to discount the minimum period of imprisonment to recognise the time you have been on bail awaiting trial. I do not consider that necessary. From 22 October 2020, you were on ordinary bail, subject only to a condition that you reside Timaru and restrictions on travel north of the Rangitata River unless for medical reasons or to see counsel. The constraints on you were not such that there needs to be allowance for them through a reduction in the minimum period of imprisonment.
[102] At the age of 35, you have no previous convictions. You have been and still are a devoted mother to your children, one of whom has particular needs. Through your actions as well as those of Mr Morris-Bamber, you have deprived your children of the support of both parents for years when they most need it. But, I will take those two matters that I have just mentioned into account as mitigating matters relating to you personally. But, the discount for that, which is in line with actually what Mr Cook acknowledged, must be modest – six months.
[103]This will reduce your minimum period of imprisonment to 13 years.
[104]Mr Morris-Bamber, Ms Bamber, please stand.
[105] Mr Morris-Bamber, on your conviction for the murder of Tony Waldron, you are sentenced to life imprisonment with a minimum period of imprisonment of 16 years.
[106] Ms Bamber, on your conviction for the murder of Tony Waldron, you are sentenced to life imprisonment with a minimum period of imprisonment of 13 years.
[107]You can both stand down.
Solicitors:
Crown Solicitor, Timaru
M A Stevens KC, Barrister, Dunedin K H Cook, Barrister, Christchurch.
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