The Queen v Namana

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 335/00

THE QUEEN

CARLOS NAMANA

Hearing:	18 October 2000
Coram:	Gault J Thomas J Keith J
Appearances:	P G Mabey QC for Appellant
N M Crutchley for Crown
Judgment:	27 November 2000

JUDGMENT OF THE COURT DELIVERED BY THOMAS J

The question on appeal

The question before the Court is whether the imposition of a minimum period of 18 years imprisonment pursuant to s 80 of the Criminal Justice Act 1985 in respect of an offender who pleaded guilty to a brutal murder of a policeman is justified having regard to the circumstances of the case, including those of the offender.

The statutory provisions

For the purpose of the appeal, the pertinent subsections in s 80 may be repeated:
…
(2)The court may impose a minimum period of imprisonment under subsection (1) if satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment of more than 10 years.
…
(3)Where the court imposes a minimum period of imprisonment under subsection (1) of this section, the duration of the period imposed shall be the minimum period that the court considers to be justified having regard to the circumstances of the case, including those of the offender.
…
(5A) For the purposes of this section, the circumstances of an offence may be regarded as sufficiently serious if the court is satisfied that the circumstances take the offence out of the ordinary range of offending of the particular kind, but the circumstances need not be exceptional.
…
(7)Where the court makes an order under this section, it shall give the offender written reasons for so doing and the offender may appeal against the imposition of the minimum period of imprisonment in the same manner as he or she may appeal upon conviction against the sentence or sentences imposed.

The facts

The facts are fully set out in the sentencing notes of Nicholson J, the sentencing Judge, in the High Court.
At about 10 p.m. on Wednesday 26 May 1999 the appellant, Mr Namana, broke into a café in Mangakino by breaking the shop window. He stole some small confectionery. A witness who lived across the road saw what was happening and telephoned the Police. Constable Stretch, the deceased, was the only Police Officer in Mangakino that night. He was at home. Informed of the burglary, he put his uniform on and drove to the scene in a marked Police utility truck. He saw Mr Namana in the hospital grounds across the road from the café. After telling Police Communications by radio of his intention, Constable Stretch approached Mr Namana on foot. Mr Namana was kneeling down picking up some of the stolen confectionery which he had dropped. He sought to escape. Constable Stretch ran after him and tackled him. Both fell to the ground. As they got up Constable Stretch grabbed Mr Namana’s arm. Mr Namana punched him. Constable Stretch then hit Mr Namana with his baton. Mr Namana knocked Constable Stretch to the ground, apparently rendering him unconscious. He then kicked him three times in the head in an action which he later described as “stomping”.
Mr Namana then got into the Police utility truck and reversed it. He struck a tree. He tried to drive forward but was pulled from the truck by a number of other persons who had gathered at the scene. He broke away from them, however, and fled.
Constable Stretch died where he had fallen. The cause of his death was the severe injuries to his head.
Mr Namana went to the home of a friend and related that he had punched Constable Stretch, that Constable Stretch had fallen to the ground and that he had then stomped on him three times. At noon the following day he went to the Police. He admitted that he had broken into the café and stolen chips and chewing gum and taken these items across to the hospital grounds. He had dropped some of them and was picking them up when Constable Stretch had arrived. He had tried to run away but had been tackled. He said that he had started punching the Constable and “copped” him one. Constable Stretch was knocked out and fell to the ground. He said that he gave Constable Stretch three stomping kicks to the face when he was lying on the ground with his head facing upwards. The Judge observed that shortly afterwards Mr Namana had said: “If the cunt’s not dead yet he soon will be”.
Nicholson J held that, at the initial stage when Mr Namana struggled with and punched Constable Stretch, he meant to cause grievous bodily harm for the purpose of resisting lawful apprehension for the burglary but that, after he had knocked Constable Stretch down, he had meant to kill him when he kicked him in the head while he was lying unconscious on the ground. The Judge said that he found this intent proved beyond reasonable doubt because of the nature and extent of the force Mr Namana had used in inflicting the severe injury to Constable Stretch’s head.
Mr Namana was known to Constable Stretch. They had previously come into contact in Mangakino. Just two evenings earlier, on Tuesday 11 May 1999, Constable Stretch and another constable had been called to a violent incident at a party at a house in Mangakino. The violence had stopped when the constables arrived but Mr Namana had made threats and yelled at them, “I am the Rock, I am the Rock, take on the Rock – one day soon I’m going to kill you”. (The Rock is a professional wrestler). Although Mr Namana denied having made specific threats to Constable Stretch, he acknowledged a general animosity towards the Police. The Judge held, however, that the threats had in fact been made to Constable Stretch and his colleague.
Mr Namana has a significant number of previous convictions, including convictions for crimes of violence. Recent convictions include anti-Police behaviour. On 28 August 1998, Mr Namana was convicted of three charges for assaulting Police officers with intent to injure. These charges related to an incident on 31 July 1998 when Mr Namana presented a firearm at three Police officers, one of whom was Constable Stretch. He had become extremely violent and assaulted the officers. Then, on 2 September 1997, Mr Namana had been convicted in the Tokoroa District Court of wilfully setting fire to a Mangakino Police vehicle.
Nicholson J imposed the mandatory sentence of life imprisonment for murder. Under this sentence Mr Namana would be eligible to be released on parole after the expiry of ten years. The Crown applied to the Court, however, for an order pursuant to s 80 that he serve a minimum period of imprisonment of more than ten years. The application was opposed by Mr Namana.

The Judge’s sentencing remarks

Nicholson J correctly followed the two-step approach which is required when considering the imposition of a minimum period of imprisonment, that is, to first determine whether the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment of more than 10 years and, if so, to then determine the duration of that minimum period.
In determining whether the offence was sufficiently serious to justify a minimum period of imprisonment the learned Judge adhered to the test set out in R v Wilson [1996] 1 NZLR 147, at 151:
What is required is an objective assessment of the whole of the circumstances surrounding the murder to determine whether they are extraordinary to the extent that for the purposes of punishment, denunciation and possibly also deterrence, an extension of the statutory non-parole period should be immediately recognised.

The Judge was aware, of course, that the threshold requirement had been amended by Parliament in 1999. For the purposes of the section the circumstances need no longer be “exceptional”. It is sufficient if the circumstances are sufficiently serious to justify an order imposing a minimum period of imprisonment.

The learned Judge held that the offence met this threshold requirement. He was satisfied that the extraordinary brutality of the repeated kicks to Constable Stretch’s face while he was lying unconscious on the ground made the circumstances of the offence sufficiently serious to take it out of the ordinary range of murder for the purposes of punishment, denunciation and deterrence. He regarded the fact that Mr Namana knew his victim was a Police officer carrying out his duty as an even more serious circumstance.
Turning to the question of the duration of the minimum period, the learned Judge referred to the victim impact statements which had been filed. Seven victim impact statements have been prepared by members of Mr Stretch’s family and six by Constable Stretch’s colleagues in the Police force. Mr Mabey had objected to these statements being considered by the Judge on the ground that they were irrelevant to the application of s 80. He also argued that certain aspects of the statements went beyond what is permissible. Nicholson J referred to Sergeant v Police (1997) 15 CRNZ 454, at 456, where Hammond J pointed out that a victim impact statement serves at least four purposes, one of which is to give victims an input into the administration of justice. It assisted the Court, the Judge added, in seeing the crime through the victim’s eyes.
The Judge then observed that the deceased was not the only victim of the murder. His family and friends, and his colleagues in the Police force, were also victims. He therefore concluded that it was appropriate and in the interests of justice to have regard to the victim impact statements. The Judge noted, however, that some victim impact statements were understandably very emotive because of the closeness of their authors to the deceased and, in the case of the Policemen, because of their feelings of vulnerability, stress and anger. He expressly stated that he had made appropriate allowance for this feature and had “treated the statements in perspective and with objectivity”.
In the key part of his sentencing remarks Nicholson J summarised the matters which he regarded as relevant to the question of fixing the minimum term which would be justified under s 80. He referred to Mr Namana’s age [39 years] and his plea of guilty. He noted the impact on Constable Stretch’s family and Mr Namana’s previous offending. He then said that he gave considerable significance to the callous brutality involved in Mr Namana’s repeated kicking of Constable Stretch on the face after knocking him to the ground, and to the fact that Mr Namana had deliberately killed a person whom he knew to be a Police officer acting in the course of his duty. He felt that these factors called for strong denunciation and a clear message of deterrence. Observing that the Court takes a very serious view of assaults on Police officers acting in the course of their duties, he held that these latter considerations must be paramount. He considered 18 years to be the minimum period of imprisonment which was justified.

The appeal to this Court

It is convenient to deal with the submissions advanced to this Court on appeal under three headings:

The victim impact statements
The brutality of the attack
A serving Police officer

(1) The victim impact statements

Mr Mabey challenged the separate weighting which Nicholson J gave to the victim impact statements. He submitted that the principal purpose of s 80 is the denunciation of a particularly horrible crime. Additional punishment and deterrence are subsidiary purposes. It is therefore wrong, he submitted, to single out the effects on a deceased’s family and friends as a factor which is relevant to those objectives.
We cannot agree that the victim impact statements should be excluded from consideration. The imposition of a minimum period of imprisonment is part of the sentencing process. Power to make such an order is conferred on the Court where it has sentenced an offender to an indeterminate sentence either following an application in a case of murder, or “at the same time” as it sentences the offender in any other case (s 80(1)). Where an offender is sentenced to a finite term of more than two years for a serious violent offence the Court may also make an order that the offender serve a minimum period of imprisonment “at the same time” (s 80). Section 8 of the Victim Offences Act 1987 requires appropriate administrative arrangements to be made to ensure that a sentencing Judge is informed about any physical or emotional harm to a victim. It would therefore be artificial to seek to exclude victim impact statements from consideration at the time the Judge determines whether to impose a minimum period of imprisonment, especially in those cases where the order may be required to be made at the same time as the offender is sentenced. Moreover, it cannot be out of place to suggest that the impact on the victim falls within the phrase “the circumstances of the offence” in subs (2) of s 80. In all, therefore, we consider that it would be contrary to the tenor of the relevant legislation and current sentencing practice for the Courts not to have regard to victim impact statements in determining whether or not to make an order imposing the minimum period of imprisonment under s 80.
In our view, there is nothing untoward about the victim impact statements completed by the members of Constable Stretch’s family. Rather, Mr Mabey’s objection must be confined to particular statements made by the Police officers. It is correct, although understandable, that these victim impact statements contain observations or expressions of opinion which may be seen as gratuitous. But, overall, the victim impact statements completed by Constable Stretch’s colleagues paint a graphic picture of the impact on the Police of the killing of one of their number in the line of duty.
We are not persuaded, therefore, to interfere with the sentence on the basis of this submission. The Judge was fully alert to the danger of placing undue weight on those parts of the victim impact statements which might be perceived as unduly emotive. Nor were those statements at the core of the Judge’s reasons for deciding upon a substantial minimum parole period. As he stated, it was the callous brutality and deliberateness of the attack on a person whom Mr Namana knew to be a Police officer acting in the course of his duty that was particularly significant. It was these factors which he believed called for “strong denunciation and a clear message of deterrence”.

(2) The brutality of the attack

Mr Mabey contended that, but for the fact the victim was a Police officer, the circumstances of the offence were not sufficiently serious to justify the imposition of a minimum period of imprisonment. He was prepared to concede that the threshold requirement was met in this instance because the victim was a serving Policeman. While acknowledging that Mr Mabey’s concession is responsible, we cannot agree that the circumstances of the offence were not sufficiently serious to justify the imposition of a minimum period of imprisonment even if the victim had not been a Police officer.
Mr Namana’s attack on Constable Stretch with, as the Judge expressly found, the deliberate intention of stomping him to death was a particularly brutal and savage attack. The attack must then be placed in context. It is clear that Mr Namana harboured a deep animosity towards the Police. He had threatened to kill Police officers and had committed offences against Police officers and Police property. After the brutal attack on Constable Stretch he manifested this animosity with his comment to the effect that, if Constable Stretch was not yet dead, he soon would be. In all, we are satisfied that the circumstances were such as to be sufficiently serious to justify a minimum period of imprisonment of more than ten years.
We consider that this view accords with Parliament’s intent in enacting the amendment to s 80 and substituting the requirement that the circumstances be “sufficiently serious” for the original requirement that the circumstances be “so exceptional” as to justify a minimum period of imprisonment. Parliament intended widening the application of the section. Ms Crutchley, for the Crown, drew the Court’s attention to a number of passages from Hansard relating to the passage of the Criminal Justice Amendment Bill (No 6). See 576 NZPD at 15182, 15183; 578 NZPD at 17570; and 579 NZPD at 17909. In seeking to give meaning to the words “so exceptional” in the earlier provision, this Court held that the imposition of a minimum period of imprisonment should be reserved for truly exceptional cases. Such cases would include cases with an unusual level of premeditation, extraordinary brutality, depravity, callousness, or multiple killing. (See R v Hapi (1994) 12 CRNZ 410; R v Wilson [1996] 1 NZLR 147; and R v Manihera, CA 40/98, 28 June 1998.) The amendment in 1999 was therefore intended to lower the threshold requirement so that s 80 would apply to a greater number of cases than had previously been the case. Further, the different wording means that the section will apply in circumstances other than the sheer brutality of the offending. Premeditation, prolonged violence and callous cruelty were features of most of the cases where minimum periods of imprisonment have been imposed in the past. The new test of sufficiently serious can embrace a wider range of circumstances. Parliament’s expectation was that a minimum period of imprisonment would be imposed more often and in a wider range of circumstances. It would, we believe, be contrary to the meaning and intent of the amendment not to accept that circumstances such as the present are sufficiently serious for the Court to invoke the jurisdiction contained in s 80.
We would resist the suggestion, however, that the amendment is directed at or necessitates an increase in the level of imprisonment imposed under s 80. Parliament in 1999 left unchanged the test for the duration of the minimum term. It may well be that, in the fullness of time, the increased number of cases to which s 80 will apply will result in an adjustment to the sentencing levels. But for the present we agree with Mr Mabey that, once the threshold requirement is met, the sentencing principles and practice which have evolved in determining the appropriate duration of a minimum period of imprisonment remain relevant.

(3) A serving Police Officer

The need to protect Police officers in the discharge of their duties has been repeatedly recognised by this Court. It has consistently proclaimed that an attack upon a Police officer is a serious aggravating factor. As Richmond P said in R v Bryant [1980] 1 NZLR 264, at 265; “No community can or will permit the use of such a weapon upon an unarmed constable doing his conscientious best to discharge his duties.” For examples of an application of the principle, see R v Simon, CA 70-73/68, 20 October 1968, R v Walker CA 39/90, 20 May 1990; R v McKay CA 307/84 3 April 1985; R v Williams CA 177/96 20 August 1996; R v Penny CA 262/97, 23 September 1997; and R v Ihaka CA 293/98 6 October 1999.
The present appeal is the first time that a case involving the murder of a serving Police officer has fallen to be considered under s 80. There can be no question but that the above principle requiring the protection of Police officers on duty must apply in full measure. Mr Namana’s murderous attack on a Police officer who was seeking to arrest him is deserving of the sternest denunciation from the Court. Violent responses from those who choose to attack the Police also require a significant deterrent sentence.
Adopting such a view does not, as Mr Mabey suggested, elevate the life of a Police officer above the life of another human being. Rather, it recognises the public interest in protecting the Police from unwarranted attacks when discharging their duties.
The question remains, however, whether in all the circumstances the minimum period of 18 years imprisonment imposed by Nicholson J is justified. But for one factor, which we will deal with below, we consider that the duration of the period was within the range open to the learned Judge. The factors which support this conclusion may be summarised as follows:

The murder was particularly brutal and savage in that Mr Namana deliberately stomped on Constable’s Stretch’s upturned face with the intention of killing him;
Constable Stretch was a Police officer carrying out a routine duty;
Mr Namana knew that Constable Stretch was a Police officer;
Mr Namana has a lengthy criminal record, including crimes of violence;
Exhibiting a deep animosity towards the Police, Mr Namana had previously threatened the Police and committed crimes involving Police officers and Police property;
Mr Namana has exhibited limited remorse or contrition for the killing;
The public interest requires Police officers to be protected, and crimes against them to be denounced with a sentence that also acts as a deterrent.

Although stern, the duration of the period of 18 years imprisonment cannot be said to be out of line with other sentences imposed under s 80, as Mr Mabey would purport. The present case is not one which can be readily compared with cases involving multiple murders or multiple sexual offending. These cases attract a minimum period of imprisonment to mark society’s abhorrence of such offending. It is the killing of a serving Police officer rather than the particular brutality of the killing itself which is deserving of emphatic denunciation in this case.
The closest case for the purposes of comparison is R v Mane CA 233/99, 24 August 1999. Mr Mane organised the shooting of a Crown witness, a Mr Crean, who was to be called for the prosecution in the trial of a number of Black Power members, including Mr Mane, in respect of charges arising out of an attack upon a Mr Stubbing. The Court declined to disturb the minimum period of imprisonment of 17 years. Indeed, Blanchard J, delivering the judgment of the Court, observed (at 4) that the minimum period of 17 years could be seen as lenient for those who planned or executed a killing designed to prevent justice being done to two of their number in another case. In that case the exceptional element which justified a severe minimum period of imprisonment was the offender’s interference with the course of justice and the need to deter others from following suit. In this case the “serious” element which attracts a substantial period of imprisonment under s 80 is the deliberate and brutal killing of a serving Police officer and the need to prevent others from following suit.
For these reasons, but for the consideration which we are about to mention, we would not disturb the minimum period of 18 years imprisonment.
The consideration which cannot be escaped, however, is the fact that Mr Namana pleaded guilty and that such a plea usually attracts a reduction in the sentence which would otherwise be considered appropriate.
There can be no doubt that, other than in cases where a sentence of preventive detention is imposed, a plea of guilty can be a relevant factor in determining the duration of a minimum period of imprisonment under s 80. Objectives of sentencing, such as denunciation, punishment and deterrence, are of course objectives in the ordinary process of sentencing a prisoner to a term of imprisonment, and there can be no reason to disregard the factors which bear on these objectives when determining the duration of a minimum period of imprisonment under s 80. Indeed, subs (3) of s 80 requires the Court to impose that period which it considers justified having regard to the circumstances of the case, “including those of the offender”. Subsection (7) expressly states that an appeal against the imposition of a minimum period of imprisonment may be undertaken in the same manner as an appeal upon conviction against the sentence or sentences imposed. Thus, just as the Crown adverted to the victim impact statements so, too, it is open to an offender to seek to obtain the benefit of a recognised sentencing advantage where he or she pleads guilty. Ms Crutchley essentially accepted that this was the case.
The principle that it is usually appropriate to make some reduction in what would otherwise have been the correct sentence where an offender has pleaded guilty has been recognised in numerous cases. (See the cases cited in Hall Sentencing para 1.7.3. See R v Strickland [1989] 3 NZLR 47, per Richardson J at 5; R v Edwards, CA 369/97, 25 February 1998; and R v Z, CA 138/00, 27 June 2000. The reduction is not made as a boon or favour to the offender. It is made in the public interest. As Edmund-Davies LJ stated in R v de Haan [1968] 2 QB 108, at 111: “A confession of guilt should tell in favour of an accused person, for that is clearly in the public interest.” (Emphasis added). The public interest is served if offenders accept responsibility for their wrongdoing, and this acceptance can be fostered by discriminating between offenders who show evidence of genuine remorse or contrition and those who do not. The public interest is also furthered by encouraging pleas of guilty so as to reduce pressure on the Police and the justice system and avoid the expense of lengthy trials. Finally, it is served by sparing victims the harrowing ordeal (especially in cases involving sexual offending), and witnesses the tension and strain, of waiting for a trial and then having to give evidence. Because of this public interest, the reduction in what would otherwise be the appropriate sentence is frequently substantial.
In this case, whatever his motives, Mr Namana surrendered himself to the Police on the day following the crime. He made a full confession and pleaded guilty at an early stage. While it might be thought by some that there should be no reduction in the sentence because of the brutal nature of the attack and the fact the victim was a serving Police officer, there is no rational basis upon which to disregard the wider public interest in encouraging pleas of guilty. It would be arbitrary and inconsistent to do so. We therefore consider that Mr Namana is entitled to have this early plea of guilty recognised by the Court when determining the duration of the minimum period of imprisonment.
It is true that the learned Judge did advert to Mr Namana’s plea of guilty. But it is difficult to see that he made any or any significant allowance for it. Had he done so the minimum period of imprisonment which would otherwise have been appropriate would have been of the order of 20 to 22 years. Such a sentence would have been self-evidently inordinate. We are therefore forced to conclude that, although mentioned in passing, little or no allowance has been made for Mr Namana’s early plea of guilty.
We would point out that Mr Namana’s acceptance of his guilt for murder was not a foregone conclusion. The question whether or not he had a murderous intent could have been put in issue. For whatever reason, therefore, Mr Namana’s early acceptance of his culpability for the crime of murder should be acknowledged and recognised in the minimum period of imprisonment which is imposed.
We do not think, however, that the reduction in the sentence should be as substantial as might ordinarily be the case. Although Mr Namana pleaded guilty, he has not demonstrated any real remorse or contrition. The pre-sentence report states that Mr Namana impressed the Probation Officer as having few insights into his offending. He stated that although Mr Namana seemed to regret the consequences of his lifestyle – particularly in relation to the death of Constable Stretch – he seemed to have little idea of how or what to change. The psychiatric report is more favourable in indicating Mr Namana’s feelings about killing Constable Stretch and his emerging insight into his problems and the seriousness of his crime. But, overall, the reports suggest that any remorse or contrition on Mr Namana’s part for killing Constable Stretch is restrained. He is more aware of the problems arising from his wasted life than he is genuinely repentant for killing Constable Stretch. While there is some evidence of remorse, therefore, it appears devoid of any real depth or feeling.
Moreover, an offender who pleads guilty to murder obviously cannot claim the advantage in sentencing of having spared the victim the ordeal of giving evidence. Nevertheless, the early plea of guilty did allow the family, friends and witnesses to avoid what would have been the considerable strain of a trial. The trial would undoubtedly have been a harrowing experience for Constable Stretch’s family. The early plea also avoided pressure on the Police and the justice system and resulted in the community not being put to the expense of a trial. Having regard to all these matters we consider that the appropriate reduction should be two years.
Mr Namana’s appeal is therefore allowed to the limited extent that the minimum period of 18 years imprisonment is quashed and, because of the early plea of guilty, a minimum period of 16 years imprisonment is substituted for it.

Solicitors

Crown Law Office, Wellington for Crown

[2000] NZCA 348

27 November 2000