IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY CRI-2013-412-002556 [2015] NZHC 286

THE QUEEN

v

STEVEN KENNETH BOSKELL ROBERT JAMES CUMMINGS RYAN WARREN GEARY-SMART JACOB CHRISTOPHER GEARY-SMART STEPHANIE ROSE MCCORMACK AKA STEPHANIE ROSE LAWRENCE

Hearing: 20 February 2015

Appearances: L C Preston for Crown J A Westgate for S K Boskell A Stevens and A Logan for R J Cummings D J More and A More for R W Geary-Smart J M Ablett-Kerr QC and S A Saunderson-Warner for R W Geary-Smart M Winders for S R McCormack/Lawrence

Judgment: 20 February 2015

SENTENCING NOTES OF OF GENDALL J

NOTE: Names of victim’s children, their ages and details of home detention address have been redacted.

R v BOSKELL & ORS [2015] NZHC 286 [20 February 2015]

Introduction

[1] Steven Boskell, Robert Cummings, Jacob Geary-Smart and Ryan Geary- Smart you appear today for sentencing for the murder of Justin McFarlane. Stephanie McCormack, you appear today for sentencing for being an accessory after the fact to murder. You were all five convicted after being found guilty by a jury on 12 December 2014. This followed a nine week trial here in Dunedin.

[2] You may all remain seated until I ask you to stand.

[3] Before getting into the detail of my remarks today can I please begin by acknowledging the presence of everybody here today. To the family and friends of the victim in this case, Mr McFarlane, who was tragically taken from you at a relatively young age, there is nothing I am able to say, or do, that can ever replace your loss. A dearly loved father, son, brother, partner, friend and relative has been taken from you. There is nothing I can say or do to change that but the sympathy of this Court is with you all.

Three strikes warning

[4] I want to talk first and just mention the three strikes warning.

[5] When on 12 December 2014 I entered convictions following your trial, I gave those of you convicted of murder, Mr Boskell, Mr Cummings, Mr Ryan Geary-Smart and Mr Jacob Geary-Smart a ‘three-strikes’ warning as required under the legislation. You know what that means and I will not repeat it here.

The offending

[6] I now want to turn to set out the facts of the offending as I have found them.

[7] Mr Boskell, Mr Cummings, Mr Ryan Geary-Smart and Mr Jacob Geary- Smart, on the day and evening of the Tuesday in 2013 in question you were engaged in the consumption of alcohol and drugs. At some point one or more of your group raised the idea of travelling to Mr McFarlane’s property for the purpose of stealing a

motorbike and obtaining drugs. It is clear the idea to steal a motorbike came from Mr Jacob Geary-Smart. Ultimately you elected to do so.

[8] In the early morning that night of the Wednesday Ms McCormack drove you all to Mr McFarlane’s property in Mr Ryan Geary-Smart’s Nissan Skyline vehicle. When you arrived, Mr McFarlane was asleep. Mr Boskell and Mr Cummings knocked on the door, which Mr McFarlane answered. Mr Boskell and Mr Cummings asked for cannabis from him.

[9] This request marks the commencement of a tortuous and prolonged attack on Mr McFarlane. While it was commenced by Mr Boskell and Mr Cummings, at some point Mr Ryan Geary-Smart and Mr Jacob Geary-Smart joined the fray. The attack included the following:

(a) First, Mr Boskell hit Mr McFarlane, the deceased, on the head with a beer bottle. This caused the deceased to become dazed, at which time he sat in a chair in his lounge.

(b) While seated a number of injuries were inflicted on Mr McFarlane which caused bleeding to his head area, which transferred to the La-Z- Boy seat he was then sitting on.

(c) While Mr McFarlane was still seated, Mr Jacob Geary-Smart, who along with Mr Ryan Geary-Smart had come into the room, became incensed that the deceased was looking at him, picked up a television set and threw it at Mr McFarlane. Although Mr Jacob Geary-Smart has claimed that the television set he threw did not hit Mr McFarlane it suffered damage and had traces of Mr McFarlane’s blood on it. It seems Mr Jacob Geary-Smart then left the house taking the keys to Mr McFarlane’s car and his cell phone.

(d) The deceased was then restrained by Mr Ryan Geary-Smart by the electric cord of an oil fin heater, and was also hit with this heater at some point.

(e) A second cord, cut by Mr Ryan Geary-Smart from a vacuum cleaner in the lounge, was wrapped around the deceased’s torso and neck as some form of restraint.

(f) At some point, Mr Boskell, with his left hand, hit Mr McFarlane at least four to five times with a fire hearth shovel or poker uplifted from the deceased’s fire place.

[10] During the various attacks it seems Mr McFarlane’s head was also stomped on a number of times. These blows were delivered with force such that distinctive shoe patterns were left on the deceased’s skin. The blunt force trauma to Mr McFarlane’s head involved at least 11 points of contact to parts of his head. He also received bruising to the scrotum and a full thickness laceration to the skin over the point of his left elbow as well as other injuries.

[11] The attack was particularly brutal and ferocious. You were all involved in it. Of the four of you who attacked Mr McFarlane, the only person who arguably on the evidence before the Court had slightly less involvement was Mr Jacob Geary-Smart, who threw the television and then left the house. Although, as I have noted, Mr McFarlane’s blood was found on that item.

[12] As I heard this case unfold at trial, it became apparent that you all sought to minimise your involvement. This minimisation was not accepted by the jury. Nor do I accept it. Thus, paring back your claims as to the extent of your individual involvement, I am satisfied that all of you were involved, albeit Mr Jacob Geary- Smart may have been involved to a lesser degree.

[13] At some point during the attack, probably towards its conclusion, Mr McFarlane’s house was searched which resulted in some cannabis, IV needles, a wallet, a small container, a cell phone, a golf club, a fire hearth shovel or poker and Mr McFarlane’s vehicle being taken. Eventually according to the evidence of Mr Boskell, Mr Cummings dragged a sheet over Mr McFarlane before leaving.

[14] You then all left in two cars, namely the Nissan Skyline car you arrived in and the car you took from Mr McFarlane which Mr Jacob Geary-Smart was driving. At some point the Nissan became stuck. Though you managed to push it free, this opportunity was taken to set Mr McFarlane’s car alight. A short time later, when you were all back in the Nissan car, you chanced upon a police patrol vehicle, which began pursuing you. You managed to escape at high speed, throwing items taken from the crime scene out of the vehicle as you did so. Ms McCormack it seems was not involved in the discarding and destruction of the evidence, though she was in the car.

[15] Mr McFarlane died of his injuries some time before 4.30 a.m., on the morning of your attack, when his co-workers found him. Certainly none of you took steps either during the attack to stop it or, later, to call emergency services in any attempt to get help for Mr McFarlane or to take steps that might have ultimately saved his life. You were all apprehended in the days following the murder, following disposal by you all of footwear and clothing you were wearing at that time.

Sentencing process

[16] I now turn to deal with the sentencing process and I will deal with sentencing in two parts. First, I will address the appropriate sentence for you Mr Boskell, Mr Cummings Mr Ryan Geary-Smart and Mr Jacob Geary-Smart, all charged with murder. I will then address the appropriate sentence for you Ms McCormack. I will then ask you all to stand to formally pass sentence upon you.

Impact on Mr McFarlane’s friends and family

[17] But, before doing so, I want to turn first to address the impact on Mr McFarlane’s family and friends of all this. This is always a distressing component of a trial. The death of Mr McFarlane is a tragedy. An innocent life was taken suddenly, violently and needlessly. Mr McFarlane’s children, family, other relatives and friends have been left without a loved one.

Victim impact statements

[18] A number of victim impact statements are before the Court, which you have already heard read out. They apply to all of your actions. First, Mr McFarlane’s ex- wife, Ms Alysha Collins, who is also mother to his two children, […] aged […] and […] aged […], prepared and read out the statement you have heard on behalf of herself and the children.

[19] You have heard that your actions have had a profound impact on the children especially. One of the boys will not talk about his father’s death, reads old text messages from his father, and is very emotional. The other boy has become much more prone to anger and has nightmares.

[20] In addition to the emotional devastation ordinarily coupled with a murder, your senseless acts in stealing and torching Mr McFarlane’s car, and in stealing other items, has removed from their reach treasured mementoes by which the children could remember their father. The impact on Mr McFarlane’s ex-wife has also been terrible. Not least of all because she has been compelled to act as the harbinger of this terrible news to her children. It would be a horrible thing indeed to convey to your children that their father has died in a brutal and callous attack.

[21] Mr McFarlane’s mother, Ms Anne Rowe, as you have heard, has also prepared a statement which Ms Preston read out. She describes your attack on Mr McFarlane as evil and recounts the devastation your actions have wrought through her life, from the day your murdered him until this moment. She says that the most devastating aspect of your actions is that her grandsons will now grow up fatherless. She also notes that your actions are more far-reaching than merely his immediate family. Mr McFarlane’s work colleagues and friends all have to live with what you have done.

[22] Finally, you have heard Mr McFarlane’s sister, Ms Kim Julius, provide and read out her statement. She observes that Mr McFarlane was a nice man with a great sense of humour and was well-loved. She is astounded at your blatant disregard for his life and struggles to comprehend what you have done. You have destroyed her family she says. Seeing Mr McFarlane’s sons breaks her heart, as does the thought

of Mr McFarlane’s friends finding his battered body. She considers you remorseless and says that she will never forgive you.

[23] At this point I would simply like to thank all of you who have provided and read those statements. It is a difficult process in all crimes, let alone in situations such as this where the crime is horrific and the loss profound.

Sentence

[24] I want to now turn to the murder charges and the sentences I am required to impose here. For murder under s 102 Sentencing Act I must impose a life sentence unless that sentence would be manifestly unjust. It has not been suggested before me, nor am I of the view, that that there is any issue here about such a sentence being manifestly unjust for any of you Mr Boskell, Mr Cummings, and Mr Ryan Geary- Smart. No suggestion has been made by your respective counsel that there is anything in this case to displace the presumption of life imprisonment on the counts of murder insofar as the three of you are concerned.

[25] Only Mrs Ablett-Kerr QC for Mr Jacob Geary-Smart, however, has sought to mount the argument that the presumption in favour of life imprisonment for murder in s 102 should not apply to him here. Mrs Ablett-Kerr QC sought to place reliance on the decisions of Innes1 and Cunnard2 in support of her contention.

[26] Considering your position here, Mr Jacob Geary-Smart, and before engaging in what I see to be the real issues in this sentencing I can indicate at the outset that as I see it this is absolutely not a case where it would be appropriate to sentence you to anything other than life imprisonment. The Court of Appeal has made it clear in the decision of Smail3 in 2007 as follows:

The presumption in favour of life imprisonment is a high one and the statutory regime confers a limited discretion not to impose life imprisonment where the offending is at the lowest end of the range of culpability for murder.

1 R v Innes [2014] NZHC 2780. 2 R v Cunnard [2014] NZCA 138. 3 R v Smail [2007] 1 NZLR 411 (CA).

It refers to the case of Williams.4

[27] Mr Jacob Geary-Smart, there is nothing about your involvement in the crime or your culpability or your personal circumstances that could in the least be described as exceptional such that a sentence of life imprisonment would be manifestly unjust. As with your co-defendants the real issue here in my view is whether s 104 has application to your offending and if so whether it would be manifestly unjust to sentence you to life imprisonment with a minimum period of imprisonment of 17 years.

Minimum period of imprisonment

[28] I turn now to s 103(2) of the Sentencing Act 2002 which states that for murder 10 years at least must be served as a minimum period of imprisonment before becoming eligible for parole. And, where circumstances of the offending are sufficiently serious, a minimum of more than 10 years can be imposed.

[29] However, if in such a case as the present one, the circumstances of the murder fall within those specified in s 104 of the Sentencing Act 2002 the Court must impose a minimum period of imprisonment of at least 17 years. This is a mandatory requirement although there is a discretion to impose a lesser term limited to cases where it would be manifestly unjust to impose a sentence of 17 years. The purpose of this requirement introduced by Parliament into our law in 2002 is to ensure a very substantial minimum term of imprisonment for the most serious murders.5

[30] People sometimes confuse the minimum term of imprisonment that the Court is required to impose with the sentence of life imprisonment. The minimum term of imprisonment is not the sentence that a person must serve. It is the term that he or she must wait before he or she is entitled to apply for parole. A person who is sentenced to life imprisonment is subject to recall to prison for the rest of their life if they offend again after being released on parole. It is a matter entirely for the Parole

4 R v Williams [2005] 2 NZLR 506 (CA). 5 At [46].

Board to determine when a person should be released on parole from a sentence of life imprisonment.

[31] Turning now to the relevant part of s 104, this provides that, unless it would be manifestly unjust to do so, a minimum non-parole period of 17 years must be imposed, first, “if the murder involved unlawful entry into, or unlawful presence in a dwelling place” or, secondly, “the murder was committed in the course of another serious offence” or, thirdly, if “the murder was committed with a high level of brutality, cruelty, depravity or callousness”, or, fourthly, if “the deceased was particularly vulnerable because of his age, health or because of any other factor.”

[32] In considering the possibility of a minimum term of imprisonment here I adopt the approach outlined in 2005 by the Court of Appeal in the case of Williams.6 This approach requires me to consider first your degree of culpability in this case Mr Boskell, Mr Cummings, Mr Ryan Geary-Smart and Mr Jacob Geary-Smart, in relation to that found in the “standard” range of murders having regard to aggravating and mitigating factors. This is to bear in mind the policy behind s 104 that in general the presence of any of the specified circumstances will justify a minimum non-parole period of at least 17 years. Then, where this first enquiry suggests a sentence less than 17 years should be imposed, I am to consider whether imposition of a minimum period of 17 years would be manifestly unjust.

[33] In this case the Crown submits, as you have heard, that the circumstances here fall within s 104(1)(c), (d), (e) and (g) of the Sentencing Act at least, as I have already mentioned and thus this justifies a minimum period of imprisonment of 17 years.

The murder offending and sentencing

Purposes and principles of sentencing

[34] On this murder offending there are certain purposes and principles of sentencing to which I must have regard. In this case the paramount purposes are holding you all accountable for the harm you have done, denunciation and deterrence

6 At [52].

of your contumelious conduct, and protection of the community from your violent tendencies.7 These are the four factors which bear upon the minimum period of imprisonment under s 103.8

[35] In addition, I will seek to promote in you all a sense of responsibility and acknowledgment for your actions in killing Mr McFarlane.9 I will also seek to provide for the interests of the victims in sentencing you today.10 I also have regard for your rehabilitation and reintegration into society, but the reality is where life imprisonment with a lengthy minimum period of imprisonment is squarely on the table, this factor is of much less importance.

[36] I also bear in mind the principles of sentencing, though acknowledging they are in many ways subsumed into the murder sentencing regime. In particular, I will strive for consistency with previous offending, I will have regard to the effect of your actions on the community and the victims and I will impose the least restrictive outcome that is appropriate in all the circumstances.11

Aggravating and mitigating features of the offending

[37] Turning to aggravating and mitigating features of the offending, s 9 of the Sentencing Act sets out various features. These will guide the ss 103 and 104 assessment. I will address these now.

[38] First, the murder here clearly involved both the actual use of violence and weapons.12 Mr McFarlane was brutally killed over some significant period of time, with a beer bottle, a fire shovel or poker, a heater and potentially other weapons used against him. The level of violence was extreme and multiple weapons played a substantial role. This offending is also further aggravated by the fact it was completely unprovoked.

7 Sentencing Act 2002, s 7(1)(a), (e)–(g). 8 Section 103(2). 9 Section 7(1)(a)–(b). 10 Section (7)(1)(c). 11 Section 8(e), (f) and (g). 12 Section 9(1)(a).

[39] Secondly, there is no doubt in my mind that this offending involved either unlawful entry into Mr McFarlane’s property or that you all unlawfully remained there from the moment the attack commenced.13 Indeed, this point is conceded by most of defence counsel and in my view it would be extremely difficult to contend otherwise.

[40] Third, in all cases of murder, the loss, damage and harm resulting from the offending is profound.14 You four, in murdering Mr McFarlane, have taken the life of a father of two boys, a brother, a son and a friend of many. You have heard the victim impact statements as I have mentioned. The emotional harm is immense. Those people will carry your actions with them forever.

[41] Fourth, I consider this a case where there was particular cruelty.15 This was a group attack against a man home alone at night, who had done nothing to deserve the immense violence you inflicted upon him. Your attack involved weapons and substantial, gratuitous violence. You then literally left him for dead.

[42] Fifth, Mr McFarlane was vulnerable.16 He was awoken from sleep at an early hour of the morning, in a rural area with no help or support. He was a slight man at 63 kilograms in weight, although it seems he was strong. He was confronted by you all, a group of four men who stood over him and were there for the purpose of depriving him of his property. He was rendered all the more vulnerable by being tied up during the course of the attack. This was all known to you when you attacked Mr McFarlane, yet you pursued the course nonetheless.

[43] Sixth, this was not an opportunistic crime – there was at least some level of premeditation involved.17 Travelling to Mr McFarlane’s property to steal from him was previously mentioned, and the trip took some time, late on a wet, windy and stormy night. However, I concede that the premeditation principally related to the property offending, and probably not the murder. I therefore do not rely on it to any significant extent.

13 Section 9(1)(b). 14 Section 9(1)(d). 15 Section 9(1)(e). 16 Section 9(1)(g). 17 Section 9(1)(i).

[44] There are really, as I see it, no mitigating features of the offending and your counsel generally did not advance any.

Section 104

[45] I will turn now to consider s 104. As I have indicated above, this offence involved either or both of unlawful entry into, or presence in, Mr McFarlane’s home. At the very least I agree with the Crown submission that any implied license for you to enter was revoked from the inception of the attack. Section 104(1)(c) is certainly invoked.

[46] I have found established that you all went to Mr McFarlane’s property for the purpose of stealing Mr McFarlane’s motorbike or drugs or both. You had planned this. You drove some way to give effect to this plan. It is therefore inescapable that this murder occurred in the course of the commission of another serious crime, namely either robbery or burglary. Section 104(1)(d)is also invoked.

[47] To my mind, the ferocity of the attack focused on Mr McFarlane’s head and upper body, the extreme level of violence, the use of multiple ad hoc weapons, the number of assailants and the horrific nature of Mr McFarlane’s ultimate injuries were such that there is both brutality and callousness present here to a high degree. This s 104(1)(e) factor in my view is also present here. Defence counsel did seek to argue that this was not a particularly brutal, callous or cruel murder. I was referred to authorities such as the case of Slade in 2005 where it was stated in the Court of Appeal:18

There is no such thing as a murder which is not, in some sense, brutal, cruel, depraved or callous. What the statute points to is the requirement that there be a “high level” of the requisite conduct. The provision has to be approached purposively, rather than mechanically.

[48] I have found, however, that there was a high degree of brutality and callousness here. Plainly this is a contextual analysis, with offences falling on a scale. At one end is ‘normal’ brutality, callousness, cruelty or depravity. At the other end there are those most sickening examples of such. What is required is that the

18 R v Slade [2005] 2 NZLR 526 (CA)

threshold be crossed to take it into the bounds of s 104. In this case I have found that to be the case. Section 104(1)(e) is also therefore operative.

[49] Finally, as I have previously mentioned, the attack came at a time when Mr McFarlane was vulnerable. The question is whether Mr McFarlane was particularly vulnerable. I have laboured over this point, but in all the circumstances, for the reasons I have identified, I have found it impossible to conclude that he was not particularly vulnerable.19 Again, your counsel sought to persuade me that this was not the case. However, the combined circumstances of Mr McFarlane at the time of the attack have convinced me that he was in fact particularly vulnerable.

[50] The Chambers Dictionary defines vulnerable as being:20

… capable of being physically or emotionally wounded or injured; open to successful attack…

[51] This and the circumstances of this sustained night-time group attack in an isolated rural property reinforces my conclusion that Mr McFarlane was vulnerable in the aggravated form of particularity as required by s 104. In the unique circumstances of this case I have found s 104(1)(g) also to be operative.

[52] These factors each discretely engage s 104.21 What I must therefore do now, as I have already mentioned, is to undertake the two-step process in Williams which first requires me to determine your culpability by benchmarking this case against the “standard range of murders”.22 Secondly, if that comparison indicates that a minimum period of imprisonment of less than 17 years would be appropriate, I will consider whether the imposition of the 17 year minimum would be manifestly unjust.

[53] I pause here to remind myself that each offender’s culpability is unique. As the Court of Appeal stated in Cunnard in 2014:23

19 As to vulnerability differing according to the time of day, see R v Hekkenburg HC Nelson CRI- 2005-004-4128, 10 May 2007. 20 I Brookes (ed) The Chambers Dictionary (11th ed, Chambers Harrap, Edinburgh, 2008). 21 In R v Baker [2007] NZCA 277 it was confirmed at [23] that the presence of more than one s 104 factor likely requires a higher MPI than 17 years. 22 In R v Paul CA496/05, 1 August 2006 at [27] it was acknowledged that the concept of a standard murder is “elusive at best”. 23 R v Cunnard [2014] NZCA 1238 at [18].

A Judge's assessment of relative culpability is central to identifying the appropriate starting point for a term of imprisonment. Unlike offenders should not be sentenced as if they were alike.

Steven Boskell

[54] I turn first to consider you Mr Boskell. As I have indicated above I consider you, Mr Boskell, to have been a central antagonist in this horrific beating.

Pre-sentence report

[55] Your pre-sentence report is insightful, Mr Boskell. It says that you witnessed domestic violence growing up, that you have struggled with alcohol and substance abuse (cannabis and methamphetamine are mentioned) and that you have difficulties with serious violence and dishonesty. However, in addition to these issues, there are glimmers of hope. You have had counselling for your addiction issues and were described by your probation officer as “intelligent, articulate, thoughtful and having significant potential”.

[56] However, your risk of re-offending is still assessed as high. Your past has inevitably led to this conclusion. The report finally notes that you accept that a lengthy period of imprisonment is unavoidable.

Submissions

[57] Turning to your counsel’s submissions, your counsel accepts that you are facing life imprisonment, with a minimum period of imprisonment of at least 10 years. He also concedes that s 104 has application, though disagrees that it is on the four bases I have mentioned. What is argued, however, is that it would be manifestly unjust to sentence you to serve a minimum period of imprisonment of 17 years, because:

(a) You were only 18 at the time of the murder;

(b) That it is open to me to infer that you were only a secondary party to the more serious injuries inflicted by others;

(c) Your previous history, though not exemplary, is no way near the level of criminality involved in this offending; and

(d) You have taken responsibility for your part in the offending by expressing remorse and acknowledging the harm caused by your offending.

[58] Your counsel, Mr Westgate, submits a shorter minimum period of imprisonment is appropriate to take account of these factors.

Aggravating features personal to you

[59] Turning now to the aggravating features personal to you Mr Boskell, it is clear you have an unenviable criminal record. You have convictions for many offences, though your violence offending is of most concern. This includes aggravated assault and common assault charges. I would not uplift for your previous offending, however, given that the current offence is altogether different from your past. However, the length of your record at such a comparatively young age is a damning indictment on your life leading to these tragic events.

Mitigating features personal to you

[60] Turning to consider mitigating features personal to you, your age, Mr Boskell, at the time of the offending is a mitigating feature. You were 18, almost 19, at the time of the attack on Mr McFarlane. Indeed, the Court of Appeal in the case Churchward emphasised the consideration which sentencing courts must give to the role of youth in offending.24

[61] However, in cases such as this, where the offending is grave, there is less scope to account for youth and I refer to the decision of Pouwhare.25 It is also further tempered by the number of convictions you have already amassed and the substantial role you played in the offending. I would also allow you some small discount for remorse. You are entitled, however, to no credit for any guilty plea.

24 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446. 25 Pouwhare v R (2010) 24 CRNZ 868 (CA).

Section 103 MPI

[62] In light of s 103 of the Sentencing Act, I must consider what minimum period of imprisonment I would impose if s 104 had no application. Having regard to the offending, features unique to you, and a range of comparable cases referred to me by counsel and those which I set out in Annexure A to my sentencing notes, I think that a 16 year starting point would be appropriate, reduced by no more than one year for all mitigating features. Thus, under s 103 I would sentence you to serve a minimum period of imprisonment of 15 years.

Manifest injustice?

[63] In this light, I must now turn to s 104 of the Sentencing Act and ask myself whether it would be manifestly unjust to sentence you to a minimum period of imprisonment under that section of 17 years. By a substantial margin I do not think it would be. This attack was horrendous. There were no mitigating features. As to you personally, the small credit I could give you for personal mitigating features, which of course does not include any credit for a guilty plea, has taken me no way down the road to manifest injustice.

[64] This does raise the question of whether I should increase the minimum period of imprisonment. In my view an uplift in this case is warranted. There can be no doubt that at least two and, it is likely, more of the s 104 factors are here engaged. Parliament has seen fit to prescribe a regime mandating the imposition of a minimum period of imprisonment of 17 years where only one of these features is operative. Where, as here, I have found probably four are invoked this must in appropriate cases be reflected in sentencing.

[65] I am aware, nonetheless, that the sentence I am going to impose on you is already severe, particularly in relation to your age at the time of the offending. I have laboured greatly over the appropriate period. It is an exercise very much fraught with difficulty. However, viewing your involvement, Mr Boskell, and your culpability in the round I think a minimum period of imprisonment of 18 years is appropriate. Life imprisonment with a minimum period of imprisonment of 18 years will therefore be your sentence.

Robert Cummings

[66] I turn now to Mr Cummings. I consider you too Mr Cummings, to have been a central antagonist in this offending.

Pre-sentence report

[67] Mr Cummings, your pre-sentence report is far from glowing. It records that you have significant interest in gang membership and that you have 47 previous convictions. You have issues with serious violence, dishonesty and substance abuse. You have, however, it is said, evinced a willingness to attend any interventions the appropriate authorities consider would assist you. It seems anger, alcohol and substance abuse counselling would be of value to you. The report says you are remorseful. Finally, you are aware that a lengthy period of imprisonment is likely.

Submissions

[68] In her submissions your counsel, Mrs Stevens, concedes that you are facing life imprisonment with at least a minimum period of imprisonment of 10 years. She acknowledges that s 104 applies on at least two grounds. However, she submits it would be manifestly unjust to sentence you to a minimum period of imprisonment of 17 years because Mrs Stevens suggests:

(a) You were not principally involved in the attack. She invites me to conclude that you were found guilty as a secondary party. In other words, your involvement was peripheral and perhaps more of a witness.

(b) She says you only admit to punching Mr McFarlane, and expressly deny using a golf club against him.

(c) She says your contribution to the offending involved no brutality.

(d) She says you are remorseful and want to stay out of trouble in prison. Eventually you would like to complete a degree and have your facial tattoos removed. In addition, she says you have family support.

(e) Lastly Mrs Stevens notes your childhood was plagued, resulting in deep-seated issues into adulthood.

[69] I have also read, Mr Cummings, the letter you wrote to Mr McFarlane’s family and the letters your sister and mother wrote to me. I would like to acknowledge the time and effort and thoughts put into each of them.

Aggravating features personal to you

[70] Turning to look to aggravating features which are personal to you Mr Cummings, your criminal record is replete with violence offending, some of it very serious indeed. It indicates a pattern of ever-escalating serious violence which is quite unable to be ignored. However, I would only uplift slightly for this offending as, again, the current offending is the summit of violent offending, while previously you had only just begun to scale the mountain.

Mitigating features personal to you

[71] Turning to look to mitigating features personal to you, I would allow you a small discount for your reasonably young age at the time of the offending, being 22, your remorse, and your willingness to alter your way of life. However, as I have said in relation to Mr Boskell, the credit I am able to give for personal features in offending such as this is severely circumscribed. You are entitled to no credit for a guilty plea.

Section 103 MPI

[72] Turning to s 103, having regard to all the relevant authorities, I would take a starting point of 16 years as a minimum period of imprisonment. I would uplift this by six months for your previous convictions. I would then allow a nine month discount for personal mitigating features. This would result in a 15 year, nine month end sentence.

Manifest injustice?

[73] I do not think it can be fairly said that the operation of s 104 and the mandatory 17 year minimum period of imprisonment would in your circumstances here, Mr Cumming, result in any manifest injustice. The credit I am able to afford you realistically takes you no way no making out the grounds of manifest injustice.

[74] And, as with Mr Boskell, the question now to be addressed is whether I should increase the minimum period of imprisonment. In my view again an uplift in this case is warranted. There can be no doubt that at least two, if not more, of the s 104 factors are here engaged. As I have said, Parliament has seen fit to prescribe a regime mandating the imposition of a minimum period of imprisonment of 17 years where only one of these factors is operative. Where, as here, I have found probably four are invoked, this must in appropriate cases be reflected in sentencing. Taking into account your involvement and culpability in the round, Mr Cummings, I am of the view a minimum period of imprisonment of 18 years is appropriate. Life imprisonment with a minimum period of imprisonment of 18 years will therefore be your sentence.

Ryan Geary-Smart

[75] I now turn to you Mr Ryan Geary-Smart. I find, Mr Ryan Geary-Smart, you were the remaining central antagonist in this offending.

Pre-sentence report

[76] Your pre-sentence report states that you left school when you were able to, and that you are proud of being in paid employment since an early age. Though you have a lack of formal qualifications, you consider your experience compensates for this. The report notes that when you were not working, you would spend time with your girlfriend, your friends and drink alcohol. In addition, you have had problems with substance abuse, including cannabis, amphetamines, opioids and Ritalin. The report notes that you have a six year old son, who lives with his mother.

[77] You have had a brief history of depression, particularly following two suicides amongst your acquaintances. In one case you found the body. You deny any suicidal ideations. You report loose affiliations with White Power but you explain this as “a loose affiliation of like-minds and beliefs rather than involvement with an organised gang”.

[78] The report notes that your response to this offence is one of “shock and bewilderment”. While denying you took part in the actual attack, you still feel a sense of responsibility and remorse. You demonstrate insight into the impact of your offending on the family and understand their anger towards you. Restorative justice is an option you would consider to apologise to Mr McFarlane’s family and explain that his death was not intentional.

[79] You are assessed as being at high risk of harm and reoffending and you are aware that a long sentence of imprisonment is likely.

Psychological report

[80] In terms of background information, also I have received a psychological report from the clinical psychologist, Dr Katie Harrison. This report really adds little. It is most instructive to refer to the section in the report headed “Opinion and Recommendation” where Ms Harrison states:

In my opinion, Mr Geary-Smart does not have a major mental illness.

…

And:

In my opinion Mr Geary-Smart did not have a major mood disorder at the time of the offence…

And

Mr Geary-Smart’s offending is therefore best explained by his anti-social lifestyle, including his peer group and his use of alcohol and drugs.

Submissions

[81] Turning now to the submissions I have received from your counsel, Mr More, he accepts that you must be sentenced to life imprisonment and that you will be sentenced to a minimum period of imprisonment of at least 10 years. Mr More also accepts that s 104 applies, but contends that it would be manifestly unjust to sentence you to a minimum period of imprisonment of 17 years for several reasons:

(a) He says the evidence against you of Lacey Macahan is unreliable and should be discarded.

(b) He says whatever your involvement in the offending, it was not causative of Mr McFarlane’s death. In other words, it is contended you struck no fatal blows.

(c) Mr More said that though you tied Mr McFarlane up, it was loosely.

(d) He contended you went to Mr McFarlane’s property to purchase drugs, not to assault him.

(e) He suggested your involvement was as a secondary party, and not as a principal offender.

(f) And finally, Mr More contended you are genuinely remorseful and would like to meet with Mr McFarlane’s family.

[82] I have also been referred by Mr More to an unsolicited email reference, which I have read, which shows that despite your flaws, you still have support and I hope this continues.

Aggravating features personal to you

[83] Turning to look at the aggravating features personal to you Mr Ryan Geary- Smart, you too have an appalling criminal history. However, there is nothing among its entries which I think would warrant any uplift given the nature of the current offence.

Mitigating features personal to you

[84] Turning to the mitigating features personal to you, you were aged 23 at the time and were just the oldest of the offenders convicted of murder here, Mr Ryan Geary-Smart. I am therefore in two minds whether I incline to afford you any credit for youth. However, I would give you some small credit for your remorse. The psychological report obtained does not indicate to me any basis for affording you any further discount and of course you are not entitled to any credit for a guilty plea.

Section 103 MPI

[85] Turning to s 103, as I consider your culpability for the offending, generally similar to that of Mr Boskell and Mr Cumming, I would fix your starting point, Mr Ryan Geary-Smart, at 16 years’ minimum period of imprisonment. I would apply no uplift. I would allow you a six month discount to arrive at an end sentence of 15 and a half years’ minimum period of imprisonment.

Manifest injustice?

[86] Turning now to consider the issue of manifest injustice, from all of this I have reached the clear view that you have advanced no compelling argument as to why the imposition of the 17 year minimum under s 104 would be manifestly unjust.

[87] And as with Mr Boskell and Mr Cummings, the question I must now address is whether I should increase the minimum period of imprisonment. In my view an uplift is again warranted in this case. There can be no doubt that at least two, if not more, of the s 104 factors are here engaged and, as I have said already, Parliament has seen fit to prescribe a regime mandating the imposition of that minimum period of imprisonment of 17 years where only one of these features is operative. Where, as here, I have found probably four are invoked this must in appropriate cases be reflected in sentencing.

[88] Viewing your involvement here and your culpability in the round, Mr Ryan Geary-Smart, I think a minimum period of imprisonment of 18 years is appropriate.

Life imprisonment with a minimum period of imprisonment of 18 years will therefore be your sentence.

Jacob Geary-Smart

[89] Next, I turn to you Mr Jacob Geary-Smart. Though I do not consider on the evidence which was before the Court that you were necessarily one of the central players in the beating, Mr Jacob Geary-Smart, you were nonetheless involved and have been found guilty by a jury of murdering Mr McFarlane.

Pre-sentence report

[90] Your pre-sentence report observes that due to anxiety issues and panic attacks, you are a sickness beneficiary. Indeed, you have for many years been on medication for these conditions. Though you have no job or specific leisure activities, you report that you help your mother around the house with cooking and cleaning.

[91] You have a harmful pattern of alcohol consumption, drinking daily, but say that your substance consumption is recreational and limited solely to Ritalin. You have multiple previous offences including driving and violence matters.

[92] In terms of the current offending, in my view to an extent you present as having little insight. You were adamant you were in no way involved in the vicious attack. Despite your protestations of non-involvement, you report that you feel guilty about not being able to prevent what happened, but say that you were not responsible for the actions of others. You are nonetheless aware that a lengthy period of imprisonment is likely.

Submissions

[93] Your counsel Mrs Ablett-Kerr QC’s submissions, are two-fold. First, her primary submission is that it would be manifestly unjust to sentence you to life imprisonment. As you have heard, I am of the view that this is not the case. Her second submission is that if life imprisonment is to be imposed, despite the application of s 104, it would be manifestly unjust to sentence you to a minimum

period of imprisonment of 17 years. Indeed, she submits that 10 years, the statutory minimum, is appropriate for you.

[94] The reasons claimed to support these submissions include the following:

(a) It is suggested you were found guilty as a secondary party pursuant to s 168 and not as a principal party pursuant to s 167. It is said you played no part in the attack on Mr McFarlane.

(b) Mrs Ablett-Kerr QC notes you have for many years been treated for anxiety and panic attacks which, in her submissions, diminishes your culpability. Mrs Ablett-Kerr QC was, however, she says, unable to discuss your mental state with the Department of Corrections’ psychologist.

(c) She notes your age, being only 22 at the time of the offence.

(d) Mrs Ablett-Kerr QC contends that your reluctance to accept full responsibility for your part in the crime should not be viewed as a lack of remorse but, rather, an inability to understand how you were found guilty. Despite you not accepting responsibility, you feel guilty over what happened.

(e) And lastly, Mrs Ablett-Kerr QC submitted that despite your substantial criminal history, at your relatively young age, you should be afforded the opportunity to make constructive use of your life, uncrushed by an unduly severe sentence.

Aggravating features personal to you

[95] Turning now to the aggravating features here which are personal to you, Mr Jacob Geary-Smart, your criminal history is very concerning. You have multiple convictions for serious violence offending. I am unable to discount these from the sentencing exercise. I would therefore allow a small uplift for your previous violent offending.

Mitigating features personal to you

[96] As to mitigating features personal to you, for you, Mr Jacob Geary-Smart, I would allow a small discount for your age. Again, as I have noted, you were 22 at the time of this offence. But I can give you no credit for remorse in light of your steadfast denials of your involvement. And of course you are entitled to no credit for a guilty plea.

Section 103 MPI

[97] Turning to s 103, given I have found to an extent, Mr Jacob Geary-Smart, you were the least involved in the attack on Mr McFarlane, that must be reflected in the starting point I adopt. The general thrust of the cases, including those which I set out in the addenda, are such that I think for you a starting point of 14 and a half years would be appropriate. I would uplift this by six months to account for your offending history but I would allow a six month discount for your age. That leaves me with an end minimum period of imprisonment of 14 and a half years.

Manifest injustice?

[98] Turning now to the issue of manifest injustice. This issue, Mr Jacob Geary- Smart, has troubled me most in its application to you and your role in the offending. However, after careful consideration and taking into account your counsel’s submissions and all the material before me, I am satisfied that you have laid no adequate foundation which would enable me to conclude that it would be manifestly unjust for s 104 to apply to you.

[99] To reflect your lesser culpability here, I see no need however to increase the minimum period of imprisonment beyond 17 years. Life imprisonment with a minimum period of imprisonment of 17 years will therefore be your sentence.

Accessory after the fact to murder sentencing

[100] I turn now to you Ms McCormack.

Purposes and principles of sentencing

[101] In sentencing you today, Ms McCormack I must consider the general purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act. In any case involving assistance given to a principal offender after a homicide has been committed, the purposes of deterrence and denunciation are of particular importance. In a case called Duff, Lang J said “[people] must know that if they harbour or assist fugitives they are likely to be dealt with severely if they are caught.”26

[102] Nevertheless, I must also impose a sentence that is consistent with other sentences imposed in similar contexts. I have had regard to the cases cited by counsel, as well as the cases which I set out in Annexure B to my sentencing notes, and I have considered all of these. There is no tariff for offending of this kind.27 There is, however, a judicially-endorsed continuum of s 176 offending, which as the case of Duff accepts is that:28

… the top end of the range is conduct that involves destruction of evidence so that a successful prosecution may be thwarted. At the other end of the scale is an isolated one-off incident in which some form of assistance is given to a fugitive.

[103] Your level of offending, Ms McCormack, and ultimately your sentencing, falls to be charted along this spectrum of severity.

Aggravating and mitigating factors of the offending

[104] Turning now to aggravating and mitigating features of your offending, other than the generally aggravating factors which are inherent in this offending, you face certain difficulties here, Ms McCormack. Although the level of assistance you provided was comparatively limited, and its duration short-lived, you enabled the

26 R v Duff HC Rotorua CRI-2009-063-6473, 9 December 2010 at [8]. 27 At [11]; R v Everitt HC Whangarei CRI-2006-088-3601, 28 February 2007 at [10]. 28 R v Duff, above n 26, at [11].

principal offenders, to some extent, to evade Police capture for a period sufficient to assist them in the destruction of and discardment of a significant amount of incriminating evidence.29 There are no mitigating features of the offending.

[105] Your counsel has helpfully adduced two authorities, Duff and the case of Vaux-Phillips, which are of assistance in this sentencing exercise, despite both being more serious than your offending.30 Those cases adopted starting points of 18 months’ and three years’ imprisonment, respectively. This was due to the high level of culpability and serious aggravating features involved. Such starting points are not warranted by the facts before me today.

[106] In terms of factual similarities, the cases of McKenzie in 2006 and Afamagasa in 2014 resemble your actions, Ms McCormack, most closely.31 In both cases, the defendants drove the offenders away from the scene of the murder to enable them to avoid arrest. The defendants in Afamagasa faced the compounding aggravating fact that they had attempted to tamper with or suppress evidence.32 In those cases, the sentencing Judges adopted starting points of ten months’ and nine months’ imprisonment.33

[107] It cannot be said that your offending here Ms McCormack surpassed a “moderate” level, as far as that term has been judicially determined for the purposes of s 176 sentencing. In a case called Everitt, the defendant accompanied and assisted the offender in evading police for four days, which Randerson J deemed to be “a moderate level in comparison to some other cases”.34

29 R v Everitt, above n 27. 30 R v Duff, above n 26; R v Vaux-Phillips [2012] NZHC 1119. 31 R v McKenzie HC Christchurch CRI-2005-009-6159, 10 March 2006; R v Afamasaga [2014] NZHC 2142. 32 R v Afamasaga, above n 31, at [72]. However, Woolford J held that this evidential tinkering was as much for the defendants’ own benefit as for the principal offender’s. 33 The culpability of Samuel Lachmaiya was assessed as being “slightly higher” than his co- defendants’, because he “led the discussions to create false alibis and attempted to arrange them with friends of his. He also had conversations relating to the disposal of the remaining ammunition used in the shooting”: R v Afamasaga, above n 31, at [86]. 34 R v Everitt, above n 27, at [10].

[108] Given your comparatively low level of culpability here, Ms McCormack, I therefore follow the approach of the Judges in McKenzie and Afamagasa, and adopt a starting point of ten months’ imprisonment.

Aggravating and mitigating factors relating to Ms McCormack

[109] Turning now to aggravating and mitigating features relating specifically to you, Ms McCormack, you have a varied conviction history which is an aggravating factor I must take into account. In addition, I note that you were convicted of breaching community work, as well as committing other offences while remanded on bail for this offence. An uplift of two months’ imprisonment is appropriate, given this habitual offending. This takes the starting point to 12 months’ imprisonment.

[110] The principal mitigating factor in your case, Ms McCormack, is your willingness to accept responsibility for your offending. You have written to this Court to express your sincere remorse, and your acknowledgement of the harm that was inflicted on the victim and his family. I duly take this into consideration. As counsel has impressed upon me, I note also the commendable steps you have taken to rectify your behaviour since the offending, namely, participation in anger management and parenting courses. In total, I will allow a discount of one month. Because you are not entitled to any discount for a guilty plea, this would bring the end sentence to eleven months’ imprisonment.

Home detention

[111] Consequently, I have the ability to sentence you to home detention, which I now turn to consider.35 This is not a discretion lightly exercised, however, because the charge that you face is a grave one. Although you were not directly involved in Mr McFarlane’s death, your offending stems from the murder by your associates of a member of your community.

[112] This is, however, a case where I consider the imposition of home detention appropriate. It meets the purposes and principles of sentencing, and has the added

35 Sentencing Act, ss 15A and 80A.

benefit of placing you in a position of rebuilding your life, re-establishing your relationship with your daughter and perhaps regaining custody of her.

[113] I have read the pre-sentence report on the suitability of your address and I am satisfied that it is suitable for the purposes of home detention, and that the occupants understand and consent to your serving the sentence in the residence in accordance with the conditions imposed.36

[114] I need to say that I have reached this conclusion, however, by only the finest of margins. As I have observed, you have offended twice whilst on bail for this present offence. Offending in such a way is nonsensical given your stated goals. You also in the past have an abysmal history of compliance. Nonetheless, you have not previously been sentenced to home detention and I am willing to afford you the indulgence of a chance at complying with such a sentence.

[115] What I must determine, though, is the length of your home detention sentence. It has sometimes been observed that due to the release date of a short-term of imprisonment being, generally, half of the sentence, a sentence of home detention roughly equates to half of the sentence of imprisonment that would have been imposed, at least in terms of time served.37 In your case this would be five and a half months. In my view that is not an adequate response. Home detention is less punitive than imprisonment.38 The length I consider appropriate is eight months’ home detention.

[116] The standard conditions apply39 and special conditions are imposed in terms of the sentence I will shortly pass.

Confiscation

[117] The final issue I must address before passing sentence upon you all is the confiscation of Mr Ryan Geary-Smart’s Nissan Skyline car. The Crown seeks such an order. It is available under s 128 as a result of subs (1)(a) and (2)(a)(iii). I have

36 Section 80A(2)(a)(i) and (ii). 37 Savage v Police HC Whangarei CRI-2008-488-1, 14 February 2008 at [27]. 38 Golding v Police HC Whangarei, CRI-2008-488-3, 14 February 2008. 39 Sentencing Act, s 80C(2).

had regard to the matters in subs (5). I consider this is an appropriate case to make an order in addition to the other sentences. I therefore exercise my discretion and order the Nissan Skyline vehicle registration “CKU15” be confiscated.

Sentences

[118] Can I ask you all to stand please. I now pass the following sentences upon you:

[119] Mr Boskell, on the charge of murder I sentence you to life imprisonment. You will serve a minimum period of imprisonment of 18 years.

[120] Mr Cummings, on the charge of murder I sentence you to life imprisonment. You will serve a minimum period of imprisonment of 18 years.

[121] Mr Ryan Geary-Smart, on the charge of murder I sentence you to life imprisonment. You will serve a minimum period of imprisonment of 18 years.

[122] Mr Jacob Geary-Smart, on the charge of murder I sentence you to life imprisonment. You will serve a minimum period of imprisonment of 17 years.

[123] Ms McCormack, on the charge of being an accessory after the fact to murder I sentence you to eight months’ home detention. In terms of your sentence, I make the following directions:

i. Upon release from Court you are to travel directly to […………...... ] and there you are to await the arrival of a probation officer and security officer.

ii. You are to reside at that address for the duration of the sentence.

iii. You are to undertake and complete the Short Rehabilitation Programme to the satisfaction of your probation officer.

iv. You are to undertake and complete counselling for alcohol and drug abuse to the satisfaction of your probation officer.

v. You are not to possess or consume alcohol or illicit drugs for the duration of your sentence.

vi. You are to undertake such family and/or parental responsibilities as you may negotiate with, and have approved, by a probation officer.

vii. You are to report to a probation officer as directed.

[124] Those are my sentences.

...... Gendall J

Addendum

[125] In regard to Ms Stephanie McCormack, the standard post detention conditions are to apply until six months after sentence expiry date.

...... Gendall J

Solicitors: Gresson Dorman & Co, Timaru Trevor Shiels QC, Dunedin J A Westgate, Dunedin Judith Ablett-Kerr QC, Dunedin D J More, Dunedin Anne Stevens, Dunedin Farnan Garthwaite Law, Dunedin

Annexure A – examples of murder sentencing

Case Facts Aggravating and Mitigating Features MPI R v McDonald [2014] NZHC Pleaded guilty to rape, murder, aggravated robbery, causing Aggravating factors: use of weapon in the aggravated 21 years for 2054. GBH with intent, wounding with intent, reckless driving. robbery , offending at victim’s house (rape in her home), murder; victim impact (loss and harm caused to family), seven years Mr McDonald moved to Christchurch and was invited to particular cruelty/brutality, vulnerability of victims (all eight months occupy a spare room in the victim’s home with her partner. three victims were particularly vulnerable), previous for rape. Victim’s partner was in custody for the night and victim convictions. arrived home. McDonald had injected himself with methamphetamine and was watching pornography. The Mitigating factors: early guilty plea. victim declined sexual advances but McDonald overpowered her. McDonald bound the victim and raped her twice.

When the victim refused to watch pornography with him he began strangling her and began a lengthy period of violence. The combination of violence, including strangulation coupled with the effect of the cords, cloth, and tape, caused her death. He then drove to the West Coast and committed aggravated robbery against two tourists as well as injuring them. R v McKenzie [2009] NZCA Mr McKenzie was associated with a white supremacist The sentencing judge, Simon France J, considered the 21 years 169. group. He and his two co-offenders saw Mr Kim hitch- combination of motive, the fact that this was the second (upheld on hiking. They picked him up, drove him to a remote area and time McKenzie had committed a race-based murder, and appeal). killed him. The sole reason for doing so was that Mr Kim the grave risk he posed to society warranted a starting was Asian. point of 24 years’ imprisonment. Three years credit was given for plea and assistance. A 21 year MPI was imposed (and upheld on appeal). Thurgood v R [2012] NZCA Mr Thurgood went to the home of his estranged partner and The sentencing judge, Cooper J, concluded that there 19 years 23. gained access. He was not entitled to be there. He was was a degree of planning and premeditation in the (upheld on wearing a beanie and was carrying a broken grubber handle. offence and was of no doubt that s 104 applied. appeal). Once inside he proceeded to launch a vicious attack against his victim, involving repeated blows with the grubber handle and also stabbing. There was also an attempt to strangle the victim. Pandey -Johnson v R [2012] Mr Pandey-Johnson was the leader of a gang. He and two The sentencing judge, Woolford J, considered both 18 years NZCA 595. other men were drug dealers who had allegedly decided to appellants equally culpable. There was substantial (upheld on kill the victim because business relations had soured. premeditation, and offending involved a high degree of appeal).

Pandey-Johnson and Mr Nuku were convicted of murder at callousness. Section 104 therefore applied. trial. A third man was acquitted. They had planned to drug him and hogtie him in the boot of a car. Their drugging attempts failed. The two men therefore decided to hit the victim on the head with a claw hammer while he slept. The victim was also injected with morphine. Skilling v R [2011] NZCA Mr Skilling gained entry into the victim’s house by using a The sentencing judge, Venning J, considered that s 104 18 years 462. tool to open an aluminium window. He began searching the was engaged on four bases: that the murder involved (upheld on property, with a view to burglary. He went upstairs, where unlawful entry into the victim’s house, the murder was appeal). he came across the victim sleeping. Mr Skilling struck the committed in the course of a burglary, that it involved a victim across the head with a hammer repeatedly. She high degree of brutality and that the victim was suffered 10 blunt force injuries to her head. particularly vulnerable. In addition, Venning J noted that the offending occurred while Skilling was subject to a sentence of supervision and on bail. Skilling also had previous violence convictions. A starting point was an MPI of 20 years. Venning J also concluded that Skilling had no remorse, a finding which the Court of Appeal found to have been open to him on appeal. Wallace v R [2010] NZCA 46. Mr Wallace picked up a female tourist from Germany in his Cooper J considered that s 104(1)(e) applied. An MPI of 18 years vehicle. Wallace struck her multiple times in the head with at least 17 years was therefore to be imposed absent any (upheld on a blunt object and stabbed her in the heart with a knife. manifest injustice. Cooper J could identify none. appeal). R v Baker [2007] NZCA 277. Mr Baker was in custody on serious charges. He was The sentencing Judge, Harrison J, had no difficulty in 18 years travelling to the Auckland Remand Prison in a prison van concluding that s 104 was engaged. At least three (upheld on with a number of people, including the victim. En route he factors were present, namely, brutality depravity and appeal). murdered the victim due to the erroneous belief the victim cruelty; the crime’s commission in an attempt to avoid would give evidence against him on the remanded charges. prosecution on another charge; and, perhaps most The attack consisted of Baker choking the victim until he importantly, the victim’s vulnerability. Starting point bled from his eyes, attempting to break his neck, and was an MPI of 20 years, reduced by two years for guilty stomping on his head multiple times. plea. R v Filihia [2013] NZHC Filihia murdered a one year-old boy who was in his care by Aggravating factors: vulnerability of young, defenceless 17 years 2833. striking his head against a hard flat surface (likely a cast- victim, who “had a right to be kept safe.” Not only did (upheld on iron bath), with such force that his skull was fractured. The Filihia inflict fatal head injuries with significant appeal. Leave medical evidence was that significant blunt force trauma brutality, he also delayed hours before seeking medical to appeal would likely be required to fracture the skull of such a attention, and lied to the medical practitioners. The refused by young child and to cause such extensive retinal offending also involved a “gross breach of trust”, as the Supreme haemorrhaging. child’s parents had entrusted him to Filihia’s care, at his Court). request, and were entitled to expect that Filihia would take good care of him. No mitigating factors. Dawood v R [2013] NZCA Mr Dawood murdered his wife. It was the culmination of a Gilbert J considered the detailed planning and high level 17 years

381. history of threats directed towards his wife, born of of brutality and callousness stood out in this offending. (upheld on depression and imagined infidelity. Dawood lured his wife Dawood’s culpability was increased due to his attack on appeal). into a shed that served as his office, locked the door and his eldest daughter when she sought to intervene. In made her sit it a chair, which he tied her to with tape. He addition, there was a history of violence and control over then took a large kitchen knife and began stabbing her, 55 the victim and family, the murder was committed at times in total. Their eldest daughter heard her mother’s home, and the impact on the children was severe. screams and tried to aid her. Dawood repelled her. After Gilbert J was of little doubt that s 104 applied. Starting Dawood was satisfied she was dead, he tried to hang point of 19 years taken. Allowance given for guilty plea, himself. some remorse (though Dawood continued to blame the victim) and a very limited discount for Dawood’s depression, jealousy and cultural dislocation. Concluded it would not be manifestly unjust to impose the 17 year MPI. Desai v R [2012] NZCA 534. The victim was Mr Desai’s wife. Their marriage broke The sentencing judge, Woolford J, considered s 104 was 17 years down when Desai moved to Australia with his daughter. He invoked on the basis of lengthy planning. It was (upheld on returned to New Zealand, went to the marital home and acknowledged that Desai was a first offender and of appeal). smashed a glass pane in front door with an empty beer previous good character, but that could be of little bottle, entered the house, went to wife’s room and assistance in such a case. Woolford J was not satisfied confronted her; asked her to confess to unspecified wrongs that the imposition of a 17 year MPI would be then dragged her through house to back porch. When she manifestly unjust. On appeal the Court of Appeal noted got outside, the wife started screaming for help and Desai that, contrary to Woolford J’s findings, this murder also reacted by slashing her about the throat and upper body with arguably involved a high level of brutality under a box-cutter knife he had just bought. The blade broke at the s 104(1)(e). outset of assault, but he continued to assault her using remnant of the blade. The victim died at the scene. R v Frost [2008] NZCA 406. Mr Frost was dropped off at the victim’s house about mid- The sentencing judge, Heath J, considered the sheer 17 years morning. He spent the rest of the day with her, drinking and brutality and callousness of the attack, committed by (upheld on smoking. Frost said that they had sexual intercourse in the someone with a ‘numbed soul’, brought the attack within appeal). early evening. Later, as the victim was preparing a meal, s 104. Frost approached her from behind in the kitchen and slit her throat from ear to ear, before stabbing her in the back, into her heart. R v Tuporo [2008] NZCA 22. Fighting broke out between two rival gangs, during which The sentencing judge, Heath J, considered that s 104 was 17 years two of Mr Tuporo's friends were seriously harmed. On invoked on the basis of both unlawful entry or presence (upheld on seeing his friends lying injured on road, Tuporo obtained a and a high degree of brutality or callousness. While Mr appeal). wrench, entered the victim's home, and without warning Tuporo’s age (19 at the time of the offending) was struck victim on jaw, before taking a knife from the kitchen relevant, it was insufficient to deflect the consequences. and stabbing victim in the neck, chest, and body. Tuporo then left house and later disguised his appearance to avoid

apprehension. R v Shepherd [2008] NZCA Mr Shepherd was found guilty by a jury of murdering his The sentencing judge, Potter J, considered that 17 years 17. former landlady. On the day in question he was offended by s 104(1)(e) and (g) applied in this case. Counsel agreed (upheld on demeaning comments she made about him and his family but thought the application would be manifestly unjust. appeal). and because she had not paid him for work he had done. She was also pursuing Shepherd for unpaid rent. Shepherd assaulted and restrained her by tying her hands and ankles, wrapped her in a duvet with further ties, placed her in her vehicle, and drove to a swamp where he threw her in. On the way back to Auckland he discarded evidence. R v Green CA461/04, 2 June The victim was a homeless man of small stature who lived The sentencing Judge, Venning J, considered the attack 17 years 2005. in a small shelter in Christchurch. The night before the involved a high level of brutality. In addition, due to the (upheld on murder the offenders, Green (18) and Morice (17), had been victim’s slight build, Venning J would have found that he appeal). taunting the victim. The next morning, they returned, armed was particularly vulnerable had he been required to do with a baseball bat, a cricket wicket, a tennis racket and a so. Section 104 applied. In mitigation age, remorse and knife. He was not there. They returned to the site of the previous good character were taken into account. shelter at 1.30am the next morning in a vehicle and tooted at Concluded its application was not manifestly unjust. him. When he came out of his shelter, the offenders threw stones at him before beating him with pieces of wooden paling. They left and returned twice to assault him further. R v Innes [2014] NZHC 2780. Mr Baker and Mr Innes travelled to Rangiora to the victims’ Dunningham J considered the aggravating features to be Mr Baker: flat for the purpose of robbing them. Baker was in a the use of a weapon (knife), the victim suffered 17 years possession of a hunting knife which Innes was aware of. significant loss as a result of the offending, the degree of (although Innes lured the two victims out of the flat and down the premeditation, possession of a weapon in a drug offence stern, not driveway (as they would not have come out of the house had context and the offending occurring at the victim’s unjust). they known Baker was around). Baker came out of the house. bushes with the knife and pursued the victims back towards Mr Innes: the flat. One of the victims received a fatal stab wound in Innes: Mitigating factors Fixed term the chest and the other a completely pierced cheek. Suffered a brain injury following a severe car accident in sentence of 1994, absence of violence in past offending, did not 10 years; no bring a weapon and was absent at the time the knife was MPI. used. Hudson v R [2010] NZCA Mr Hudson was found guilty at trial of murdering Mr Pike, In sentencing, the Judge said that the murder was callous 16 years 417. whose body was never found. The Crown case was largely and pre-meditated. It was done to protect Hudson from (upheld on circumstantial. the Police whilst on the run. The MPI was set at 16 appeal). years, though the Judge emphasised that it was the minimum and emphasised Hudson’s extreme dangerousness. Cornelius v R [2014] NZCA Mr Cornelius had an issue with the victim. The victim’s Section 104 was engaged. A 17 year MPI was 15.5 years

123. puppy would come onto his property causing a nuisance. appropriate. The sentencing Judge noted that Cornelius (upheld on This escalated to the point where threats were made by both had a low level of anger control when threatened, appeal). parties. On the day of the offence Cornelius said to a friend thought violence was acceptable, and had a criminal that he was going to take the victim out. That evening, record with serious violent convictions. Cornelius had victim was walking with a friend on a grass verge. Mr previously received counselling, but still had difficulty Cornelius drove his car directly towards the victim, managing his anger. It was accepted that Cornelius narrowly missing the victim’s friend, yelling “I’m going to showed genuine remorse, and was overcome with panic fucking kill you”. He hit the victim and drove over him. and despair after the attack. In light of early guilty plea Cornelius then drove over the victim twice more. and genuine remorse, it would be manifestly unjust to impose a 17 year MPI. Boyes-Warren v R [2010] The victim was a taxi driver. Mr Boyes-Warren had been The sentencing judge, French J, observed that there was 15.5 years NZCA 395. drinking heavily before getting into the victim’s taxi. At no dispute the MPI would be 17 years unless manifestly (upheld on some point Boyes-Warren told the taxi driver to stop and got unjust on the dual basis of guilty-plea and age. appeal). out, opened the victim’s door and produced a knife Ultimately, this was held to be the case. demanding money. Boyes-Warren inflicted several cuts on the victim before fatally stabbing the victim in the left side of the chest, which penetrated the heart. R v Beca [2013] NZHC 3279. Mr Beca was in a relationship with C. Convinced that C was Collins J held that the s 104 factors of calculation, 15 years. passing on information to other gangs that would endanger planning and callousness were present in this case, him, Beca began contemplating murdering C. Beca particularly given the “chillingly unemotive” nature of strangled C in the car, then drove straight to the Police the murder, and its commission in close proximity to C’s station with C’s body and admitted to murdering C. five year-old daughter. Provisional discount of 18 months given for guilty plea. Further discount of six months given for (possibly pathological) personality disorders. Having reached provisional sentence of 15 years' imprisonment, Collins J found 17 years' minimum period manifestly unjust in Beca's case. R v Holl [2013] NZHC 2932. Injuring with intent to cause grievous bodily harm: Holl was Aggravating factors: “calculated and very deliberate 15 years. walking along a track when Mr Hunter (MH) walked past planning”, involving the formulation of a “revenge plan” and Holl struck him on the back of the head with a rock. and assemblage of weapons and equipment to commit MH managed to pin Holl down and restrain him when it the murder; high level of brutality; multiple offences. appeared H might pick the rock up again. When interviewed by Police about this incident, Holl claimed he had not Mitigating factors: guilty plea (two year provisional wanted to kill anyone but simply to hurt and maybe put MH discount), youth (19 years old at time of offending), and in a coma. personal circumstances (personality disorder).

Murder: Holl and co-accused moved in with his mother (G). Tensions developed due to G not approving of Holl's co- accused. G told Holl to move out. Holl told co-accused he

planned to kill G when she returned to the house. Holl located an axe, skipping rope, nylon cord, masking tape, pillow case and lighter; when G returned, physical fight ensued and Holl struck G several times in the back of the head with blunt end of the axe. Police, alerted by neighbours of disturbance, arrived shortly after and Holl admitted to killing. R v McSweeney [2007] NZCA Mr McSweeney murdered his wife. Shortly before the At sentencing it was acknowledged that s 104 prima 15 years 147. murder, an argument broke out between them resulting in a facie applied but that the combined factors of clean past (upheld on protection order being imposed against McSweeney. Four record and contributions to society through public appeal). days later, he went to their joint business where he stabbed service meant it would have been manifestly unjust for her about 30 times to her arms and upper body, with the s 104 to apply. fatal wound being a stab wound to the heart. Reekers v R [2011] NZCA Mr Reekers pleaded guilty to the murder of a 23 year old Aggravating factors: extensive previous convictions 15 years 383. woman and was sentenced by Stevens J to life and 15 years (including a conviction on a charge of raping a woman at (sentence MPI. Reekers appealed against the MPI. knife point in 1978 – 12 month uplift), use of a weapon upheld). (sharp instrument meant the killing was brutal in nature The victim went missing on 12 February 2001. Her naked, and at a time that the victim was in Reekers’ control and decomposing body was found 19 February 2001. She had vulnerable), indignity of disposing of the body in such a suffered three stab wounds to the chest and her clothing was way (Court of Appeal also emphasised this as a found to contain semen stains. In April 2008, Reekers was significant factor), and impact on the victim. convicted of theft and was required to provide a DNA sample to police. This DNA sample matched the DNA Mitigating factors: guilty plea coupled with remorse profile obtained from the semen. Reekers continued to deny (discount of 12 months). his involvement but ultimately pleaded guilty on 16 December 2009. There was limited evidence regarding the sequence of events but it was thought clear that Reekers picked the victim up on 10 February and stabbed her at some stage between 10-19 February and possibly slit her throat. He then transferred the body to where it was found.

The appeal was on the basis that the judge placed considerable emphasis on the fact that Reekers had stabbed or slit the victim’s throat, something that Reekers denied. The Court of Appeal did not accept that particular emphasis had been placed on this point or that it could have made an appreciable difference to the end result. R v Houma [2008] NZCA Mr Houma and other young people had spent several hours While Courtney J was satisfied by a fine margin that 15 years 512. drinking. A young man entered the area where he and the s 104 did not apply, she was in no doubt that an MPI (reduced

group were drinking. Despite there being no dispute, some greater than ten years was required. The factors she from 16 years of the group immediately launched an attack on the young considered relevant were the complete lack of on appeal). man. First he was punched, which knocked him to the provocation, Houma’s ringleader role in the assault, ground, then kicked several times in the head and body. callousness, and the fact that the victim was literally left for dead. Courtney J imposed an MPI of 16 years. R v D [2014] NZHC 2272. Pleaded guilty to one charge of murder, four charges of Aggravating factors: planning, particular 15 years. arson, one charge of attempted arson, four charges of theft cruelty/brutality (possible death by burning, by a person in a special relationship. vulnerability of the victim.

The defendant was stealing from her employer by Mitigating factors: guilty plea and personal underpaying invoices and transferring the difference into her circumstances (suffering depression, PTSD and anxiety). account. She set fire to the telecommunications cabinet located in the office. Limited damage was caused. The next day she started another fire in the same area causing moderate damage. The following week she deactivated the fire alarm and started a fire in the main office. She alerted two contractors to help put the fire out before starting another fire on the accountant’s desk. The accountant discovered the details of her theft. She was dismissed.

At her flat, she set fire to a tissue box under her husband’s father’s bed. This triggered a smoke alarm which woke him. The alarm was deactivated before the family returned to bed. The next day the husband and children left the house. The defendant struck the husband’s father on the head, leaving him unconscious, then set light to the room. All alarms were deactivated. He died, although it is unclear whether by the assault or the fire. R v Kelekolio [2014] NZHC 17 year-old defendant sentenced for murder and sexual Aggravating factors: particular brutality, offending at 14 years, six 1791. violation by unlawful sexual connection with victim. Victim victim’s house, multiple offences. months lived with defendant’s father and was well known to the defendant. Mitigating factors: late guilty plea, young age (10 days (17 years short of 16 at the time of the offending), and personal would be Victim texted a friend asking to be picked up. The defendant circumstances (immaturity and development deficits). manifestly was in the car on arrival. After a conversation, it became unjust due to clear that the victim was going to be dropped off at an young age empty house. The defendant was dropped at his house, not and guilty far from where the victim was being dropped. The plea.) defendant went around to the victim’s house where she was

stabbed repeatedly with a pointed kitchen knife. Her throat was also cut with a serrated breadknife. Lane v R [2010] NZCA 145. While drunk and high on methamphetamine Mr Lane was The sentencing judge, Miller J, observed that Lane 14 years driving around Wanganui with three women and one man in blamed his serious methamphetamine habit for the (upheld on his car. An argument erupted between Lane and the women offending and denied that it was premeditated. Lane was appeal). as to the whereabouts of a person whom Lane wanted to 30 years old, with a partner and two young sons, confront. When two of the women left the car, Lane talked employment and had “very strong family support”. to the remaining woman and asked her a question. Miller J noted the probation officer remarked that Lane Dissatisfied with the answer, Lane shot the woman through had deep remorse for the killing. the temple with a .38 calibre pistol. The offending was described as callous and brutal, with the quality of an execution, though unplanned. However, by a fine margin Miller J held that s 104 did not apply. The starting point was 15 years MPI, plus a one year uplift for previous violence convictions and the fact that the crimes were committed whilst on bail. From the 16 years a deduction of two years was permitted for guilty plea and remorse. R v Afamasaga [2014] NZHC Mr Afamasaga and Mr Banaba were found guilty of the Mr Afamasaga Mr 2142. murder of Mr Turner and wounding with intent of Mr Aggravating: multiple offences (13 previous Afamasaga: Mataio. There were four other assailants (one guilty of convictions), killing was premeditated (despite 14 years manslaughter, and three accessories after the fact). continued denials), and use of a gun. Mitigating: genuine remorse and desire to make amends Mr Afamasga, prior to murder was a prospect for the King through reparation. Mr Banaba: Cobra gang. He has since become a patched member. The 11 years victim was the leader of a rival gang. Afamasga instigated Mr Banaba the plan to shoot the victim. Mr Banaba was leader of the Aggravating: Principal role (class C drug offending), group. When the victim arrived at the assailants’ flat, multiple offences (short and minor), and planning (a Mr Banaba: Afamasga had a .22 calibre rifle loaded. The victim walked high degree of premeditation). Premeditation up the drive when Afamasga shot at him, piercing his heart. Mitigating: little previous offending and positive did not He died shortly after. Two further shots were fired, one references. trigger s 104. hitting Mr Mataio in the leg. R v Kinghorn [2013] NZHC While heavily intoxicated, Kinghorn deliberately drove his Aggravating factors: impact on defenceless victim, 13 years 3216. car off the road and onto a grass verge, striking the victim “somewhat sinister sexual overtones”, high degree of (upheld on without braking. The victim was thrown from the car bonnet culpability, use of car as weapon, and premeditation. appeal). onto the grass. Shortly after impact, Kinghorn exited the car, However, Rodney Hansen J found that Kinghorn’s picked up the victim and laid her across the backseat of his actions “did not reach the high level of brutality, cruelty, car. The victim died as a result of high impact injuries to her depravity or callousness contemplated by s 104(1)(e).” head, brain, spine, chest wall, and limbs. Kinghorn While the sexual motivation, victim’s vulnerability, and abandoned his car, went to a stranger’s house and asked the the manner in which she was killed were highly relevant

occupant to call the police. Kinghorn frankly admitted his to determining the MPI, they did not bring the offending guilt to Police and the doctor who examined him. within s 104. Mitigating factors: Kinghorn’s early guilty plea, remorse, and prospects for rehabilitation (offer to participate in restorative justice programme). Churchward v R [2011] Ms Churchward (17 at the time) and an associate (14 at the The sentencing judge, Venning J, noted that Churchward 13 years NZCA 531, (2011) 25 CRNZ time) beat Mr Rowe, a 78 year-old pensioner, to death in his did not show remorse or empathy with the deceased. (reduced 446. bed. The beating utilised a wooden walking staff and a The Judge considered that a number of features from 17 years wooden rod. It caused massive head injuries and blood loss, supported the application of s 104, namely unlawful on appeal). which resulted in respiratory failure leading to eventual, entry into and presence in the deceased’s home, that the though not immediate death. murder was committed in the course of another serious crime, that there was a high level of brutality and the victim was particularly vulnerable. Venning J observed that were it not for Churchward’s youth, an MPI of 19 or 20 years may have been appropriate. 17 year MPI imposed in the High Court. R v Pukeroa [2013] NZCA Pukeroa and another Mongrel Mob member were assaulted The Court noted that the provoking incident arose out of 13 years 305. by a group of Tribesmen members in town where they were gang tensions. They condemned Pukeroa’s meting out (reduced attending a tangi. In this assault, Pukeroa was punched, retribution by retaliatory offending as an unacceptable from 15 years thrown to the ground, and kicked and hit a number of times response, and found that this aggravating feature “offsets on appeal). on the head with the blunt side of an axe. His truck was to some extent the mitigating effect of the provocation”. stolen. Pukeroa and other members later went to address of However, a two year allowance to reflect provocation two Tribesmen members and assaulted one as he was trying was required, as the provoking conduct was “very to escape. Pukeroa then took a utility vehicle which he used serious.” to smash through the fence and pursue two of the Tribesmen members up the side of the house. Another tripped into the path of the vehicle and sustained serious multiple injuries, including a fractured skull and brain trauma, from which he died. Pukeroa then drove the vehicle at another Tribesman member who managed to get out of the way R v Smail [2007] 1 NZLR 411 Mr Smail had been drinking all day. He was with his On appeal it was argued that the victim was particularly 13 years (CA). tetraplegic friend, who was sitting in a wheelchair. Using a vulnerable. 17 years is therefore indicated. However, (uplifted knife, Smail inflicted six stab wounds to the left side of his the Court of Appeal, having regard to other cases where from 12 years neck and slashed his throat. He died from blood loss within the presumption had been displaced, was satisfied that on appeal). a few minutes at most. the application of s 104 would result in manifest injustice. R v Harrison [2014] NZHC Mr Pakai and Mr Harrison were members of the Rogues Pakai: They started the confrontation and chose to return 13 years. 2705. chapter of the Mongrel Mob. They decided to make a visit expecting a confrontation. They took with them a to Mr Goff, a member of the Mongrel Mob Petone, for the modified rifle and dozens of cartridges. Mitigating purpose of methamphetamine. Mr Goff was not home so factors: young age and guilty plea.

Pakai and Harrison took items from the flat including Mr Goff’s partner’s cell phone. Mr Goff made contact and Harrison: previous criminal history was aggravating. organised for the return of the goods along with a confrontation involving associates who were armed with weapons. While returning to the flat they shot twice at a slow bread van. On return, Harrison handed over the phone when he was struck by one of the associates. Pakai then fired six shots into the group using a modified rifle. The associates dispersed but continued their attack, stabbing Pakai in the shoulder and leg. One of the associates was shot and killed. Pakai and Harrison then escaped in their badly damaged car. R v Gottermeyer [2014] Mr Gottermeyer had been in a relationship with his wife for Fogarty J, in sentencing Gottermeyer, gave several 12 years NZCA 205. some five years before he murdered her. He suffered reasons for imposing an MPI of 10 years despite the (uplifted psychiatric issues as a result of the Canterbury earthquakes, prima facie operation of s 104. In essence, from 10 years leading to his admission to Hillmorton hospital. Gottermeyer’s previously good history and mental health on appeal). Gottermeyer and his wife separated after his release from issues led to a conclusion that manifest injustice would hospital. One morning, Gottermeyer drove to his wife’s flow from its operation. On appeal, the Court of Appeal new house when she was about to drop their daughter off at held that it must be assumed that Fogarty J did not preschool before heading to work. She refused to sign consider that s 104 had operation. However, the Court papers relating to the sale of the house they owned together. of Appeal was not of the same view; s 104 was engaged They argued about compensation quantum and childcare on the basis of s 104(1)(e). arrangements. Gottermeyer stabbed his wife with a knife, cutting her head, chest, back, hands and throat. The daughter was in the flat at the time, though it was not entirely clear how much she heard or saw. Manukau v R [2011] NZCA The victim was apparently a drug dealer. Two of the four The sentencing judge, Heath J, considered that s 104 was 12 years 108. people charged with his murder had grievances with the invoked but was of the view that the 17 year MPI would (upheld on victim arising from drug activities. One of these men was be manifestly unjust. In relation to Manukau this was appeal). Mr Manukau. A plan was hatched to get revenge. It because an MPI of more than 12 years was not required, involved luring the victim to Manukau’s house under the he had significantly poor health, he had some influence pretext of a drug deal, where he would be set upon. The over one of the other involved parties, and the timing of plan was effected, with the victim being assaulted with a his plea would normally attract a 10 per cent discount. cricket bat and a tomahawk. After the attack the victim was wrapped in a rug, placed in his car, driven to another area and abandoned. R v Churchis [2014] NZHC Mr Churchis was with a group of associates. Churchis Aggravating factors: offending on bail (previous 11 years, 6 2257. assaulted a complainant by throwing a partially consumed offending was unrelated and less serious), attacking head months. bottle of beer at his head. Churchis and associates found the (with hands and feet), extreme violence, particular

victim defecating near where they slept on the streets. cruelty (left victim without help to die), multiple Mitigating Churchis confronted the victim. Churchis launched a martial offences. factors meant arts-style kick to his head and then delivered several that the s 104 punches to his head. He continued to punch him while he Mitigating factors: remorse, young age (17 at the time of minimum was on the ground and stomped on his head. The victim the murder), and personal circumstances (homeless). was not suffered severe traumatic brain injury, a subdural imposed. haematoma, cerebral contusion and a fractured eye socket. He was left unconscious. He subsequently died of pneumonia. R v Slade [2005] 2 NZLR Three offenders seriously assaulted the victim and robbed At sentencing, Keane J held that s 104 applied on the 10 years 526. him. The assault was a three-on-one, consisting largely of basis that the offending occurred during the course of (reduced attacks to the head, while the victim was restrained. another serious offence and involved a high degree of from 17 years brutality, cruelty, depravity or callousness. Keane J on appeal). sentenced Slade and Hamilton to 17 years MPI. On appeal this was upheld for Hamilton, but quashed for Slade.

Annexure B – examples of accessory after the fact to murder sentencing

Case Facts Starting Point Aggravating and Mitigating Endpoint Factors R v Vaux-Phillips [2012] NZHC Vaux-Phillips not only helped Three years’ imprisonment. Mitigating factors: (a) youth and 12 months’ home detention. 1119. clean up the scene and dispose real immaturity; (b) eventual of the victim’s body, but also acknowledgement to police of Persuasive factors: the accused’s helped the principal offender her involvement, information parents’ home was assessed as (her then-partner) avoid provided to them and suitable for home detention and detection by Police and willingness to be a witness at she had their ongoing support; dishonestly communicated with principal’s trial, which Crown the accused was only 18 years family and public “in a very acknowledged would provide old, pregnant and relatively disturbing way.” She provided considerable assistance; (c) immature. She had also been on false information to the victim’s guilty plea; (d) may have been EM bail and had observed its family and the public generally, under principal’s influence; and terms for some time. Moreover, raising false hopes and (e) real remorse. given the type of associates and significantly adding to the lifestyle that led to this family’s suffering. offending, opportunity for her rehabilitation and positive reintegration into society was likely to be better served by a sentence of home detention than one of imprisonment. R v Cullen HC Tauranga CRI- Cullen (“C”) assisted alleged Three years’ imprisonment (to Beyond those inherent in the 12 months’ home detention, 2008-070-2188, 23 April 2008 murderer Ashby (“A”) in order reflect extent to which C was offending, the only aggravating with standard post-detention (upheld in R v Cullen HC to enable him to avoid arrest. C acting under compulsion). factor was C’s failure to report conditions imposed for six Rotorua CRI-2008-070-2188, 5 and A were involved in the what happened voluntarily at an months. March 2010, dismissing C’s manufacture of illicit drugs. earlier time. Mitigating factors: application for cancellation of Dispute arose between C, A, and early guilty plea, remorse, and [The starting point was first balance of home detention the deceased over money co-operation with police, reduced to one year two months’ sentence). allegedly owed to deceased. including giving evidence imprisonment, and then home

After A shot the deceased in C’s against A at considerable risk to detention imposed in lieu of a presence, C assisted A in C's safety. custodial sentence.] moving and disposing of body. 14 months after deceased was reported missing, C gave detailed statement to Police, enabling the location of the remains of the deceased. R v Raroa [1987] 2 NZLR 486 The disposing of bodies at sea Given these considerations, and (CA) (upholding R v Raroa HC following a double murder so as the appellant’s role in “a Timaru T4/87, 29 June 1987). to assist the murderers to avoid gruesome sequel to those arrest. This was “a serious murders”, the Court of Appeal offence of its kind”, as it was found that three years’ not only “designed to defeat the imprisonment was not ends of justice but also causes manifestly excessive, and great anguish to next of kin and refused leave to appeal against considerable distress to the sentence. whole community while the search for the bodies continues.” R v Leach HC Wellington CRI- Leach assisted an associate to Thirty months’ imprisonment. An aggravating factor was that Fifteen months’ imprisonment. 2006-085-4461, 27 October clean blood and hide evidence the evidence destroyed Leave granted to apply for home 2006. from the scene of the murder comprised parts of the detention. (which was also Leach’s deceased’s body. Leach’s role address), disposed of the was “rather more than simply victim’s severed hands, hiding an alleged offender or dismantled cannabis cultivation destroying exhibits”, because: equipment, and sanitised “Your actions were not simply possible items of evidence. designed to pervert the course of Leach “went to some trouble to justice and prevent … remove traces of any apprehension of an offender but evidence of violent activity” … comprised being involved in from the premises. He the additional indignities to the eventually cooperated with deceased's body and the feelings Police and admitted his role. of his loved ones.” Mitigating

factors included the guilty plea, assistance to Police, personal background and otherwise good character. R v Ovalau HC Auckland CRI- Ovalau and Sheck had each 18 months’ imprisonment. Relevant mitigating factors: SP ultimately discounted for the 2006-092-10484, 13 March transported one or more of the youth – both accessories were guilty pleas and other “powerful 2007. principal offenders away from aged 18; lack of prior mitigating factors” by 50 the scene of the fatal shooting. convictions; early guilty pleas; percent to arrive at an end Ovalau took the firearm used in and cooperation and assistance sentence of nine months’ the shooting, and Sheck later provided to Police. The Judge imprisonment. Leave granted to concealed the weapon at his also took into account the apply for home detention. home, with the intention of offenders’ remorse and the disposing of it. probation officer's assessment that both parties represented a low risk of re-offending. R v Graham HC Christchurch Graham assisted the murderer to 18 months’ imprisonment. A serious aggravating factor Nine months’ imprisonment. CRI-2004-009-2224, 14 avoid arrest by attempting to was the attempt to evade police, Leave granted to apply for home September 2004. dispose of evidence, and driving His Honour noted that while mitigating factors detention. the principal offender away imprisonment is the usual included the guilty plea and co- from the scene of the murder. outcome for being an accessory operation with police. Chisholm after the fact to a serious crime, J also found Graham “entitled to because “deterrence is a key credit for the fact that you are consideration. Accessories effectively appearing today as a complicate the hunt for first offender with some pretty criminals and add to the burden glowing references to boot.” of the police.” He went on to declare that: “The last thing that Judges ever want to do is to send people to prison who are in employment and who have a good past record. But in the case of some crimes and, I am afraid, this is one, deterrence is so important that a sentence of

imprisonment is virtually inevitable.” R v Moala HC Auckland CRI- Alec Moala (“AM”) was present 18 months’ imprisonment (if a Factors justifying non-custodial Nine months’ home detention. 2006-092-461, 12 December at a gang fight in which two custodial sentence was sentence: youth (AM was 16 at 2007. principal offenders shot two imposed). time of offending), genuine victims (killing one and remorse, good character, and wounding the other). Following timing of plea. Had the charge the fight, AM drove the to which AM pleaded guilty offenders away from the scene been laid earlier, he would have and took part in concealing the been entitled to have it dealt firearm. with in Youth Court. His plea was therefore treated as an early guilty plea. R v Everitt HC Whangarei CRI- Once aware that her ex-partner 18 months’ imprisonment. Aggravating factors: Everitt 12 months’ imprisonment. No 2006-088-3601, 28 February (“F”) was wanted for murder, contributed to the need for application made for leave to 2007. Everitt contacted F’s sister and At [10], Randerson J held that substantial police resources to apply for home detention. was then picked up in a car she Everitt’s offending was at “a be employed and prolonged the knew to be stolen. Everitt moderate level in comparison to risk to public safety until F was accompanied and assisted F in some other cases where, for apprehended. Mitigating factors: evading Police for four days. example, a person has rendered guilty plea and confession to assistance in disposing of a Police. The Judge also accepted body following a murder or that F had been violent towards attempting to cover up a crime Everitt. Moreover, she had to enable the killer to avoid suffered a miscarriage, and on arrest.” the day of the murder, the bodies of her twin miscarried babies had been returned to her, causing “serious emotional upset” and helping to explain her conduct. Six month discount reflects these mitigating factors. R v Duff HC Rotorua CRI-2009- Duff assisted her brother, who 18 months’ imprisonment. Aggravating factors: (a) Duff’s Seven months’ home detention. 063-6473, 9 December 2010. was being sought by Police in assistance occurred over a connection with a murder, by At [11], Lang J expressly noted: reasonably lengthy period of

taking him to Auckland, “There is no tariff or guideline, time; (b) Police were required to arranging for him to live at an judgment from the Court of expend considerable resources address there and providing him Appeal regarding the starting in terms of time, effort and with money and clothing. point for the sentence to be money to arrest her brother Immediately after the Police had imposed” in this type of when that should have been a visited the address while he was offending. simple matter; and (c) Duff away, she sent him a text telling provided assistance in different him not to go back and to hand His Honour also charted a forms and in circumstances himself in. She also provided continuum of s 176 offending, where the Police had told her in him with a “clean” cellphone accepting the Crown’s no uncertain terms that she that he could use to make submissions that “the top end of should not do so. Mitigating communications without the the range is conduct that factors: (a) late guilty plea; (b) Police being able to intercept involves destruction of evidence preparing to accept them. When interviewed by the so that a successful prosecution responsibility knowing that her Police, Duff was co-operative may be thwarted. At the other brother’s fate had not yet been and frankly admitted her end of the scale is an isolated determined in Court; and (c) involvement in assisting her one-off incident in which some accepting responsibility for her brother to evade capture. form of assistance is given to a offending. These amounted to a fugitive.” In this case, Duff’s discount of four months, with a offending fell “somewhere in final starting point of 14 the middle.” months’ imprisonment. Duff had achieved the age of 33 years with no criminal convictions, and she was entitled to credit for that when considering whether or not a sentence of home detention was appropriate. Negative comments in the probation report should not preclude her from receiving a sentence of home detention. R v Tavita and Lafaele HC Simi (“S”) stabbed victim to 18 months’ imprisonment. Aggravating factors: lying to Seven months’ home detention. Auckland CRI-2009-092-5263. death with fishing knife. S police and her preparedness to informed Tavita (“T”) of this, help S to get out of country. [Lafaele’s personal

Ms Lafaele. whereupon T got into S' vehicle Mitigating factors include: co- circumstances, lack of previous and drove S past the spot where operation with the police and convictions, and good record to the deceased was lying on four limited involvement. The date meant that a sentence of occasions. During that time S sentence was reduced to 12 home detention was pointed to deceased and showed months’ imprisonment to reflect appropriate.] T the knife he had used to stab Lafaele’s guilty plea and deceased. The following remorse. morning, T heard confirmation S that stabbed deceased to death on radio. T then assisted S to hide his vehicle. L received text message from her sister asking her to come to house where S and T were staying. L was told that S stabbed deceased to death. L's sister asked L to purchase airline ticket to Samoa for S so that he could leave NZ. L agreed, knowing S had killed and was wanted by police. T and L drove S to airport where L purchased S an airline ticket to Samoa. Police spoke to L later that day but she lied to them and denied having contact with S or any knowledge about case. R v Tavita and Lafaele HC See factual matrix above. 15 months’ imprisonment. No aggravating factors. Five months’ home detention. Auckland CRI-2009-092-5263. Sentence reduced to nine months’ imprisonment to reflect Mr Tavita. guilty plea, remorse, youth, and lack of previous convictions. R v Te Tomo [2012] NZHC 71. Accessory after the fact to 15 months’ imprisonment. Mitigating factors: (a) mother of Four months' home detention participating in an organised two young children and about and 100 hours community work. criminal group. Te Tomo Obiter at [9]: “Had the seven months pregnant; (b) aged

assisted her partner, a member accessory after the fact charge 21 at the date of this offending, Priestley J found this commuted of the Mongrel Mob, to evade been murder then an 18 month not affiliated to any gang; (c) sentence to be “both principled police for several weeks, start point would be justified.” told probation officer that could and justified. It is also in knowing he was on the run. His His Honour cited R v Duff HC see that life would be much accordance with the offending involved beating a Rotorua CRI-2009-063-6473, 9 better for her outside the gang recommendation of the young man to death. Assistance December 2010; and R v Everitt culture; (d) several supportive presentence report. It is included accommodation, HC Whangarei CRI-2006-088- friends and whanau members furthermore in accordance with money, clothing and 3601, 28 February 2007. including her mother who was Sentencing Act principles and encouraging him to remain at in Court; (e) offending a one-off purposes. Home detention will large and avoid arrest. Te Tomo matter; (f) risk of re-offending not remove you from your told the probation officer that assessed to be low; (g) a sense children and you will have towards the end of that period of whanau loyalty drove whanau support near the she was trying to encourage him offending, albeit misguidedly; proposed address. However, I to give himself up to the Police. (h) tried to persuade partner to consider the deterrence purpose surrender himself; and (i) charge requires an additional sentence had been hanging over her for to be imposed on you of more than two years. Discount community work.” of four months for these factors and 10 to 15 percent discount for guilty plea resulted in an end sentence of 9.5 months' imprisonment. R v Granich [2013] NZHC While a group of associates 15 months’ imprisonment. Mitigating factors: Granich Five months’ (or 150 hours) 2657. assaulted the victim inside the assisted the Police in finding the community detention with 150 victim’s house, Granich stayed shoes, was remorseful and hours of community work and outside on the footpath. As a pleaded guilty as soon as 12 months’ supervision. result of the group’s actions, the possible. These factors victim died the following day. warranted a one-third reduction [Home detention was At the request of one of the in sentence, to ten months’ considered, but acknowledged principal offenders, and imprisonment. as posing “a significant risk that knowing that they would be of you will not be able to continue interest to Police investigating with your employment.” Ronald the death, Granich disposed of Young J held that: “In this case I the shoes the offender had worn think I can construct a sentence

during the assault. as similar as possible to one of home detention with similar restrictions but with providing you the opportunity to continue to work.”] R v Tamihana [2014] NZHC 90. Tamihana was in prison at the 15 months’ imprisonment. No aggravating or mitigating 11 months’ imprisonment. time of the attempted murder. factors justify uplift or discount. Two co-defendants walked into Discount of 20 percent for a cell and attempted to stab two guilty plea. victims using improvised weapons. Tamihana attempted to dispose of the weapons. R v McKenzie HC Christchurch Accessory after the fact to Ten months’ imprisonment. Two and a half month discount Seven and a half months’ CRI-2005-009-6159, 10 March wounding with intent. for a guilty plea. No other imprisonment. 2006. McKenzie’s brother stabbed aggravating or mitigating another man who later died. factors addressed. McKenzie later took his brother on “a reasonably lengthy car journey” to enable him to avoid arrest. R v Afamasaga [2014] NZHC Having been told of the fatal Nine months’ imprisonment From the cumulative sentence 12 months’ home detention. 2142. shooting in the car, the accused (cumulative on a two year start of two years nine months’ (Edgar Laloni) drove the point for sale of cannabis). imprisonment, Woolford J principal (Afamasaga) away At [78], Woolford J held that Edgar Laloni discounted three months to from the scene to avoid arrest. home detention met the Laloni’s assistance was limited reflect the restrictive bail sentencing purposes of to picking up Afamasaga conditions Laloni was subject to deterrence and holding the directly after the shooting in from August 2013 – July 2014. offender accountable. His circumstances where a pickup Having regard to the principle Honour added: “I express some was already planned, and trying of totality, per s 85(2) of the concern at your previous history to tamper with or suppress Sentencing Act, the Judge then evidence as much for his own of breaching orders of determined that a sentence of benefit as for Afamasaga’s. supervision and community (In addition to cannabis two years’ imprisonment would detention, but I note that you offending.) better reflect overall culpability. have not been sentenced to

home detention before. Needless to say, Mr Laloni, that if you decide to engage in similar conduct again, the result will almost certainly be a sentence of imprisonment.” R v Afamasaga [2014] NZHC See facts above. Culpability Nine months’ imprisonment Mitigating factors: limited prior Ten and a half months’ home 2142. deemed to be much the same as (cumulative on a two year start conviction history (two minor detention. his brother’s (cannabis point for sale of cannabis). traffic convictions); youth at the offending also materially similar Sosaia Laloni time of offending (aged 19 to Edgar Laloni’s). years); clearly “very much the junior figure in this group”; particularly vulnerable to outside pressure at the time of offending; and a “paramount” need to provide for Laloni’s future rehabilitation. Laloni’s youth and s 85(2) totality principles warranted a twelve month reduction in sentence, to a total of 21 months’ imprisonment. R v Afamasaga [2014] NZHC See facts above. Lachmaiya also Twelve months’ imprisonment Mitigating factor: genuine Ten and a half months’ home 2142. faced sentence on an additional (cumulative on a two year start remorse. Full discount for guilty detention. charge of possessing a firearm point for sale of cannabis). plea and expressions of remorse without lawful purpose. Samuel Lachmaiya. reduced the accessory sentence Lachmaiya pleaded guilty to all charges. In relation to the to nine months’ imprisonment. cannabis offending, his Uplift of one month’s culpability deemed to be much imprisonment to recognise the the same as the Laloni brothers. charge of possession of a However, after the victim’s firearm. Principles of totality, death, Lachmaiya led the “significant steps towards a new discussions to create false alibis life and the efforts… made and attempted to arrange them towards rehabilitation”

with friends of his. He also had warranted a reduction in conversations relating to the sentence by 13 months’ disposal of the remaining imprisonment, leaving an end ammunition used in the sentence of 21 months’ shooting. His culpability was thus “slightly higher” than the imprisonment. Laloni brothers in relation to the charge of accessory after the fact to murder. R v Nikoro HC Christchurch Nikoro uplifted her son (who Nine months’ imprisonment. Relevant personal Nine month term imposed, but T135/96, 1 May 1997. was later convicted of murder), circumstances: Nikoro’s suspended for two years; six by means of subterfuge and responsibilities for another months periodic detention and concealment. She intended to young child. two years’ supervision. take him to Auckland to attend a funeral, after which he was to give himself up to police. Nikoro was apprehended in Picton.