IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI-2014-055-002443
[2016] NZHC 284
THE QUEEN
v
BEN BOSCH HERKT
Hearing:
26 February 2016
Appearances:
Gareth Kayes and Sacha Norrie for the Crown
Peter Kaye for the Defendant
Judgment:
26 February 2016
SENTENCING NOTES OF MOORE J
R v HERKT [2016] NZHC 284 [26 February 2016]
Introduction
[1]
Ben Bosch Herkt, at the age of 39 you appear for sentence this morning
having been found guilty by a jury on a charge that, on 17 November 2014, you
murdered Matthew Greenslade (“Matthew”). The maximum penalty for murder is
life imprisonment and that is the sentence I intend to impose upon you because as
both the Crown and Mr Kaye agree there is no basis to do otherwise. But in your
case there is a complication.
[2]
This is because your sentencing triggers s 86E of the Sentencing Act 2002
(“the Sentencing Act”). That section forms part of our sentencing regime and is
commonly referred to as the three strikes legislation.
[3]
The three strikes legislation applies in your case because on 27 July 2012 you
were convicted in the Manukau District Court on three charges of robbery. You were
sentenced to three years’ imprisonment and given a first strike warning. Amongst
other things you were warned in the event you were convicted of murder you would
be sentenced to life imprisonment and would serve that sentence without the
possibility of parole unless that would be manifestly unjust.1
[4]
Since then you have gone on to commit murder. The effect of s 86E is that
you must now be sentenced to life imprisonment without parole unless I am satisfied
it would be manifestly unjust to do so. If I find it is manifestly unjust to impose such
a sentence the Sentencing Act requires me to impose a sentence with a minimum
non-parole period of at least 10 years.2
[5]
I am also required to take into account s 104 of the Sentencing Act which
requires the Court to make an order imposing a minimum period of imprisonment of
at least 17 years if one or more of a series of aggravating factors are present. If that
section applies the Court may only decline making such an order if it is satisfied it
would be manifestly unjust to do so.
1
2
Sentencing Act 2002, s 86B.
Section 103.
[6]
Before I examine these various issues in the context of your case it is
necessary for me to review the background and the events which lead up to
Matthew’s death.
Background facts
[7]
Matthew was 32 when he died. In the latter part of 2014 he was living in one
of the units situated in a block of six in Porchester Road, Papakura. The flats were
occupied by tenants, some or all of whom had a history of various mental health
issues. Matthew occupied Unit 3. It was a modest single bedroom unit and he had
not been living there for long.
[8]
The evidence at trial was that Matthew was a popular and gregarious person.
He made friends easily and he enjoyed the company of others. That assessment is
supported by the comments of the Greenslade family in their victim impact
statements. I will return to those statements later in this decision.
[9]
On Monday, 17 November 2014 the landlord had scheduled a house
inspection. The inspection took place and Matthew passed. It seems this was a
matter of some relief and a cause for celebration on his part.
[10]
As a result he contacted several friends and invited them to his place for a
modest party. Some of those invited came from the adjacent units and some he knew
through other connections. You were one of those friends.
[11]
He picked up you and Ms Tito, your then partner, and drove you both back to
his unit where you all began to drink.
[12]
Later in the afternoon, when the alcohol supplies were depleted, you,
Matthew, Ms Tito and another went to a bottle shop to replenish. You bought a box
of Cody’s and returned to Matthew’s unit and carried on drinking.
[13]
Quite what the catalyst was for the fight which then took place and ended
Matthew’s life remains unclear. It may have been something which he said about
Ms Tito or it may have been some action on his part which you interpreted as an
insult. Whatever it was it was very minor indeed. You reacted disproportionately.
You attacked Matthew with your fists. He responded in a similar fashion in defence
and a fight ensued with both of you trading blows.
[14]
Despite the fact that he was smaller than you, the evidence is that Matthew
got the better of the fight leaving you with a bloodied nose and bruises and cuts to
your face.
[15]
Those who were in the unit with you broke the fight up. You, Ms Tito and
Matthew went outside. A short time later Matthew returned to his unit and locked
the doors. You and Ms Tito were left outside.
[16]
It is obvious from the evidence that you were very angry. You were resentful
towards Matthew for getting the better of you and you made the fatal decision to
exact revenge.
[17]
You went to one of the adjoining units and spoke to the occupant. You asked
him for a weapon and in particular a cricket bat which you knew he had there. But
the cricket bat was broken and so you asked him to give you a knife.
[18]
It is both remarkable and deeply regrettable that a knife was then passed to
you. But it was. And armed with that knife you wasted little time returning to
Matthew’s unit. You tried the front door but found it was locked. You went around
to the back door which was also locked. So you smashed your way in.
[19]
Once inside you ran towards Matthew who was in the kitchen. You pinned
him up against the fridge. You lunged at him, stabbing him in the head and neck.
Unarmed, he courageously repelled the attack before you stabbed him in the area of
his lower chest and upper abdomen. This proved to be the fatal blow. It penetrated
Matthew’s abdomen. The knife cut his liver in two places and nicked his ribs in
three places. But what lead to his death was when the knife entered the pericardial
cavity; that sack in which the heart sits. It cut the lower surface of his heart which
began to bleed.
[20]
It did not bleed vigorously. There was no visible spurting blood. Instead,
unbeknown to Matthew or anyone else, his heart slowly, but steadily, bled with each
pumping action filling the pericardial cavity and ultimately compressing the heart so
it could no longer expand to pump. This caused the heart to stop. It was for this
reason, as Dr Morrow the pathologist explained, that Matthew did not die
immediately.
[21]
The evidence is that after this attack those who witnessed it ran out of the unit
closely followed by Matthew. They ran to a van. Matthew clambered into it. He
retained consciousness and even talked about his injuries. They drove straight to the
Papakura A&E. Even then, Matthew was able to get out of the van before he fell to
the ground unconscious. He never regained consciousness despite the prolonged and
heroic attempts of medical staff and paramedics to resuscitate him. He died where
he fell.
[22]
You also took off. But in the opposite direction. You were in the company of
Ms Tito. There is little purpose in trawling through the evidence of what happened
after the fatal blow was struck but it is common ground that after leaving the
Porchester Road complex you threw away the knife, dumped clothing and other
evidence and, with Ms Tito, did all you could to avoid apprehension.
[23]
You cleaned out your bank account and, obviously, you had plans to get as far
away as you could.
[24]
As was inevitable, you and Ms Tito were located by the Police the following
morning. You were interviewed. It was a long interview and for most of it you
attempted to convince the Police that you were not the attacker; that two shadowy
figures with gang connections were responsible for the attack on Matthew. That was
a fiction.
[25]
It was only when it was plain to you that the Police did not believe your
account, and when they told you that Ms Tito had described what had actually
happened, that you capitulated. You admitted you had been lying and, to your credit,
albeit it belated, you expressed remorse for what you had done and on video
apologised to Matthew’s family.
[26]
You said that Matthew had thrown the empty box of Cody’s at Ms Tito and
you got offended and retaliated. You knew that you had stabbed him several times
but claimed you were unable to say how many. You put this down to a combination
of your intoxication and your history of mental illness.
[27]
On several occasions you apologised to Matthew. You described him as “a
good spirit” and said that you “didn’t mean to do it to him”; “that he was a good guy,
he didn’t deserve it and had, in the past, given you a lot of help.”
[28]
You accepted that you were in “angry mode” and “drunk”. You said that you
did not think. You said you should have shook his hand and acknowledged that he
had won the fight. Instead, you allowed rage, anger and resentment to cloud your
judgement and to take over with the result you fatally wounded an unarmed man you
counted as a good friend.
Crown submissions
[29]
Mr Kayes, for the Crown, enclosed the Solicitor-General’s written
submissions in support of the sentence appeals for R v Turner3 and R v Harrison.4
These submissions directly addressed the decisions in those cases in some detail and
Mr Kayes adopts them in support of the Crown’s submission as to the appropriate
interpretation of the expression “manifestly unjust” in s 86E. While he accepts that a
finding of manifest injustice should only be made in exceptional cases he submits
that such a sentence would not be manifestly unjust in your case.
[30]
He submits that there is nothing in the circumstances of the offence or of you
which would make life imprisonment without parole manifestly unjust.
3
4
R v Turner [2015] NZHC 189.
R v Harrison [2014] NZHC 2705.
Defence submissions
[31]
Mr Kaye, on your behalf, submits that Wylie J’s very recent decision in R v
Kingi5 has direct relevance and should be applied in your case. He supports his
Honour’s observation in that case that the word “manifestly” must be given its
ordinary meaning which is “clearly obvious to the mind or eye or demonstrable”.
[32]
In particular, Mr Kaye submits that if there is such a thing as a scale of
murders, the present case is towards the lower end of the scale. He also submits the
seriousness of the first strike offences in 2012 need to be seen in context; there was
no actual violence and no weapon used. He points out that the sentencing Judge
took into account your mental health as a relevant feature of mitigation.
[33]
Mr Kaye also touched on your previous convictions, your age, your
expressions of remorse, the prospects of rehabilitation, your mental health issues and
the views of the Greenslade family.
He thus submits that a sentence of life
imprisonment without parole would clearly be manifestly unjust and that a sentence
of life imprisonment with the ordinary statutory minimum non-parole period of 10
years’ imprisonment would be appropriate.
The interpretation of s 86E
[34]
I turn now to consider s 86E and its application in your case.
[35]
Three cases have now been decided under s 86E.6 Two are currently subject
to appeal by the Solicitor-General.
Those appeals are yet to be heard.
A
consolidated hearing before the Court of Appeal is scheduled for 3 May 2016. The
third case, R v Kingi, came before Wylie J in the Hamilton High Court only last
week.7 Whether the Solicitor-General intends to appeal the sentence imposed in
Mr Kingi’s case is presently unknown. Undoubtedly I would have been greatly
assisted by a judgment of the appellate Court dealing with the interpretation of
s 86E. However, given the length of time before such guidance is likely to become
available, I have decided your sentencing should proceed as scheduled. In coming to
5
6
7
R v Kingi [2016] NZHC 139.
R v Harrison above n 4; R v Turner above n 3.
R v Kingi above n 5.
this decision, I am mindful of the interests of Matthew’s family and you. Further
delays, particularly given this sentencing has already been adjourned once, would be
wholly undesirable.
[36]
I now turn to consider s 86E. Section 86E relevantly provides:
“(1)
(2)
This section applies if (a)
an offender is convicted of murder; and
(b)
that murder is a stage-2 offence or a stage-3 offence.
If this section applies, the court must –
(a)
sentence the offender to imprisonment for life for that
murder; and
(b)
order that the offender serve the sentence of imprisonment
for life without parole unless the court is satisfied that, given
the circumstances of the offence and the offender, it would
be manifestly unjust to do so.
(3)
If the court does not make an order under subsection (2)(b), the court
must give written reasons for not doing so.
(4)
If the court does not make an order under subsection (2)(b), the court
must –
…
(b)
if that murder is a stage-2 offence … order that the offender
serve a minimum period of imprisonment in accordance with section
103.”
[37]
What this section means is that where a defendant is convicted of murder
having previously received a second or third strike warning, the Court is required to
sentence them to life imprisonment without parole unless it is satisfied, having
regard to the circumstances of the offence and the offender, that it would be
manifestly unjust to do so.
[38]
In your case, Mr Herkt, this section in our Sentencing Act is engaged because
you have been convicted of murder and you have already received a first strike
warning under s 86B of the Act.
[39]
You received your first strike warning after you had been convicted of three
robberies for which you were sentenced in 2012. Therefore, it is clear that the
requirements set out in s 86E apply in your case. That is accepted by the Crown and
your counsel.
[40]
In applying this section, the interpretation of the words “manifestly unjust” is
obviously critical. These words are not defined in the Act and so the task of
interpretation has been left to the Courts.
[41]
Mallon J was the first to consider the meaning of these words in Harrison.
Her honour pointed out that the threshold for the exercise of the discretion has been
set very high.8 Then Woolford J in Turner undertook an even more detailed analysis.
He looked at the legislative history of the provision as well as the case law dealing
with the same words used elsewhere in the Sentencing Act.9 He came to the view
that the test should be a rarely exercised one and that, while the legislation was
intended to be disproportionately punitive, it was also intended to target the worst
types of murderers and violent offenders; those who are incapable of rehabilitation.
[42]
In Kingi, Wylie J described the test in simple terms. He said:10
“In my judgment the word “manifestly” carries its ordinary meaning. It
means clearly, obvious to the mind or eye, or demonstrably. In context, the
use of the words manifestly unjust in s 86E denotes an injustice that is clear
or obvious.”
[43]
He added that a sentencing Court’s application of s 86E should be informed
by three considerations.
(a)
First, to avoid life without parole, any injustice must be patently clear.
(b)
Secondly any finding of manifest injustice must be reached on the
basis of both the circumstances of the offence and the offender (the
test being conjunctive).
8
9
10
R v Harrison, above n 4, at [28].
Sentencing Act, ss 102(1) and 104(1).
R v Kingi, above n 5, at [37].
(c)
Thirdly the manifestly unjust assessment must be undertaken in light
of ss 7, 8 and 9 of the Sentencing Act, which set out the purposes and
principles of sentencing.
[44]
With respect to the Judge I find this expression of the test most helpful and
practical. I propose to adopt his Honour’s methodology in your case. As Wylie J
did, my analysis will be guided by the following factors:
(a)
your age and the likely consequences of a sentence of life
imprisonment without parole for you personally;
[45]
(b)
the circumstances of your offending in the present case;
(c)
your first strike offences and your criminal history;
(d)
your personal circumstances, including your mental health;
(e)
your prospects of rehabilitation;
(f)
the purposes and principles of the Sentencing Act;
(g)
the views expressed by the victims; and
(h)
remorse.
Because it is a lengthy list and because my discussion of it will be necessarily
detailed I will let you know now that I have reached the view that a sentence of life
imprisonment without parole would be manifestly unjust in your case. In coming to
that decision it is important to emphasise that no single consideration on its own has
lead me to this conclusion. I have reached this view by considering all of the factors
listed above as a whole. Some carry more weight than others. It is the operating
combination which has lead me to decide that in your case it would be manifestly
unjust to sentence you to life imprisonment without parole. Nevertheless, it is
important that I go through and discuss each feature one by one so that you
understand why it is that I have come to that conclusion.
Application
Your age
[46]
You are 39 years of age. Wylie J in Kingi undertook a detailed analysis of
Statistics New Zealand figures on life spans noting that the average life expectancy
for European males was just under 80 years and for Māori males 73 years. As his
Honour observed it is, of course, impossible to predict how long any particular
individual will live but assuming you enjoy an average life expectancy it is likely
that in the event you were denied parole you could expect to spend the next 40 to 50
years of your life in prison. Of the offenders in the cases already considered by this
Court I note that Turner was 29, Harrison was 44 and Kingi was 26. So you are not
the youngest and you are not the oldest.
[47]
Serving a sentence of 40 to 50 years’ imprisonment would be to impose an
effective sentence well in excess of those imposed on the most notorious and wellknown figures in New Zealand’s criminal history. As David Garrett MP of the Act
Party, which was the major proposer of the three strikes regime, said during the
Third Reading of the Bill:
“… This Bill is not about locking people up and throwing away the key and
it never has been. I re-emphasise what the Minister of Corrections said: the
only people who will be locked up for life under this Bill will be persons
who have committed murder as a ‘third strike’ or the worst of our murderers
– people like Graham Burton, William Bell, Liam Reid, and, sadly, a number
of others whose names are less well-known.” 11
[48]
The notorious offenders specifically identified in that speech were individuals
who exhibited extreme violence and psychopathic behaviour.
They committed
horrific, cold blooded killings which were rightly and roundly condemned by the
community and which, it seems, were the catalyst for the introduction of the three
strikes regime. But even those offenders received sentences of life imprisonment
with minimum periods of imprisonment of between 20 and 30 years; decades less
than you would serve if denied parole.
11
(25 May 2010) 663 NZPD 11226.
[49]
As Wylie J observed in Kingi, some offenders sentenced to life imprisonment
have served very long sentences but not without the necessity of their incarceration
being considered on an ongoing basis by the Parole Board once they have served the
minimum periods of imprisonment imposed by the Court. Contrary to Mr Garrett’s
speech, I agree with Wylie J’s comment in Kingi and adopt it in your case too,
namely:
“To sentence you to life imprisonment without parole would, in fact, amount
to locking you up and throwing away the key.”
Circumstances of the offending in the present case
[50]
Implicitly every killing of a human being by another is a tragedy. The taking
of a human life in circumstances which amount to murder rightly attracts
condemnation and this principle is reflected in the seriousness of the penalty which
is life imprisonment.
[51]
Despite this, some murders attract greater levels of condemnation than others
and I have already mentioned cases where the offending has rightly been regarded as
at the top of the scale as reflected by the lengthy minimum terms of imprisonment
imposed.
[52]
Your offending, despite the incalculable consequential harm which has
followed, is not in that league.
acknowledged by the Crown.
And that has been properly and responsibly
Mr Kayes observed that, without intending to
diminish the seriousness of the offending and the immense impact it has had on the
Greenslade family the Crown acknowledges that in comparison to other murders, it
is at the lower end of the scale. The Crown concedes that none of the aggravating
factors contained in s 104 of the Act are present and so that section which requires
the imposition of a 17 year minimum period is not engaged. In this way your
offending can be distinguished from that which this Court has previously
encountered in Harrison, Turner and Kingi.
[53]
I accept that your attack on Matthew arose in the context of an argument
which quickly escalated into violence. I also accept that there was comparatively
little pre-meditation although it cannot be ignored that after the initial fight you
decided revenge should be exacted. You went away, found a weapon, returned and
attacked Matthew with it.
[54]
The attack itself was frenzied and over in a matter of seconds. Furthermore,
although your victim was not armed, he was not vulnerable in the sense that term is
used in the Sentencing Act.
[55]
And so if I was to compare the level of offending with that in Turner,
Harrison or Kingi I accept it is a good deal less serious even if the consequences
were equally dreadful and irreversible.
First strike offence and criminal history
[56]
You received your first strike warning following your conviction on three
charges of robbery in 2012. The Crown has helpfully provided a copy of the
summary of facts but unfortunately the Judge’s sentencing notes are not available.
However, from the summary, it is evident that your offending involved three
robberies committed over the course of a week. The total amount taken was nearly
$4,000. Your modus operandi involved passing a note to the teller claiming you had
a gun although there was no evidence you were ever armed. No actual violence was
used. The sentencing Judge adopted a starting point of four and a half years but
applied a 20 per cent discount for your mental health issues. This necessarily
reflected the Judge’s view that your psychiatric history had played a significant role
in your offending.
[57]
Compared to the other s 86E cases decided by this Court, it is evident that
your first strike offending was more serious than that engaged in Harrison or Kingi.
On the other hand, it is considerably less serious than that which confronted the
Court in Turner which involved a near fatal assault on a woman.
[58]
You have an unenviable criminal history; some 98 previous convictions. But
these convictions are mostly for relatively low level offending. Despite that, I
cannot ignore there are a number of convictions for violence including assaulting a
Police officer, assault with intent to rob, threatening to kill and attempted arson.
[59]
However, your history is a good deal less serious than that in Harrison where
there was a background of some 20 years of gang related offending. It is also less
serious than that in Turner where there were some 110 convictions including 22 for
low level violence.
Personal circumstances and mental health
[60]
Following your conviction I directed that a psychiatric report be obtained. I
specifically asked that the report, in addition to providing information in relation to
your general psychiatric background and status, should include information on how
your psychiatric condition influenced the offending and how a sentence of life
imprisonment without parole would affect you.
[61]
Although I received a comprehensive report earlier this month, for reasons
which are not immediately apparent, the report failed to address those specific
issues. I directed a further, supplementary report which has since been received and
to which I shall refer shortly.
[62]
A good deal of your psychiatric background was traversed in the course of
the trial. Since the mid-1990s you have had a documented history of mental health
issues. You were admitted to the Mason Clinic where you were diagnosed with
schizophrenia. It is recorded you responded well to treatment but you were not
compliant with your medication. You were admitted to Kingseat Hospital later in
1995. Even at that relatively early stage your substance abuse was noted.
[63]
Over the next few years you were admitted to mental health facilities on
several occasions. Again, your compliance with medication was poor as was your
insight into your mental health and the dangers of substance abuse. You were
diagnosed with bipolar disorder and with schizophrenia.
You have received
treatment using various anti-psychotic and mood stabilising agents. You have been
subjected to a number of compulsory treatment orders. You have a lengthy pattern
of suspending medication and abusing substances.
[64]
In August 2015, in other words three months before Matthew’s death, the
forensic prison team noted that your schizophrenia seemed reasonably well
controlled. You were diagnosed at that time as suffering from schizophrenia, antisocial personality disorder and poly-substance abuse. You were prescribed a long
acting intra-muscular anti-psychotic medication, Risperidone Consta as well as
medication to mitigate the side effects.
[65]
As part of your defence at trial you called the outpatient mental health nurse
who had been treating you in the past. She described the effects of the medication
you had been prescribed and told the jury that she visited you fortnightly to inject
you with the Risperidone. She last saw you on 13 November 2014 just days before
you killed Matthew. She described you as pleasant and welcoming on that occasion.
She also said that although you had a history of being non-compliant, her impression
was that in the months before November 2014 you were stable and, it seems,
generally compliant.
[66]
She described the effect of alcohol on Risperidone Consta. She said it had
the effect of neutralising the benefits of the medication, presumably resulting in the
unmasking of the underlying psychiatric symptoms and making you impulsive and
prone to violence.
[67]
This evidence was adduced to support your defence you lacked murderous
intent. Plainly the jury’s verdict means this defence was rejected.
[68]
However, the question of your psychiatric background is a relevant
consideration for the purposes of sentencing.
[69]
The psychiatric report concludes by observing that you have a longstanding
diagnosis of schizophrenia and substance use disorder. It records that your mental
health, in recent times, has been relatively stable so long as you are able to abstain
from substances and are maintained on the present pharmacological regime. The
report records that your risk of re-offending is increased by your substance abuse
which leads to decreased inhibition and an increased tendency to resort to violence.
It records that you have an abnormal state of mind characterised by disorders of
perception which have, in the past, posed a danger to the health and safety of others.
[70]
In the supplementary report, the writer states that in the absence of easy
access to substances of abuse you are more likely to be stabilised as you continue to
receive your medication.
[71]
Finally, the report writer concludes that while a life sentence would be
onerous or difficult for anyone, your schizophrenia has been under control and there
does not appear to be a reason to believe you are less capable of serving a long
sentence of imprisonment than anyone else.
[72]
When this history is compared to the three other cases I note that your mental
health history appears to be very similar to that of Mr Kingi. In Turner and Harrison
there were no diagnosed mental health issues although Turner had been prescribed
antipsychotic medication.
[73]
In summary I am satisfied that while your mental health issues fell short of
providing you with a defence, your tendency towards impulsivity and violence is
connected and did contribute to the tragic events which unfolded that evening in
Porchester Road.
Prospects for rehabilitation
[74]
I have already touched on this topic. It is apparent from the information
provided to me that there is some room for optimism for rehabilitation if your
substance abuse is addressed and you continue to comply with your medication.
[75]
I note the Crown’s responsible acknowledgement that to date you have not
had the opportunity to address programmes related to violence, as well as their very
proper concession that you are not beyond rehabilitation. In that context I note that
the written material provided to me by Mr Kaye and the submissions he has made
this morning which demonstrate that while you have been in custody you have
enrolled in and successfully completed a number of helpful rehabilitation
programmes. It would also seem that the testing for drugs during that time suggests
you have been drug free.
Purposes and principles of the Sentencing Act
[76]
As did Wylie J in Kingi, I have considered the purposes and principles of the
Sentencing Act. I have found nothing in s 7 which supports the proposition that
justice requires you to be sentenced to life imprisonment without parole.
Furthermore, there is nothing in s 8(a), (b) or (c) which requires you be sentenced to
life imprisonment without parole.
[77]
Section 8(e) requires me to take into account the desirability of consistency
with appropriate sentencing levels imposed on other offenders committing similar
offences. A sentence of life imprisonment without parole would be considerably
harsher than the sentences imposed on offenders who have been convicted of more
serious offending where the degree of callousness has been extreme, there have been
multiple victims and the offending was well planned.
I acknowledge that this
comparison involves considering other cases which were determined before the
passing of s 86E but despite this I find, as did Wylie J, that notions of proportionality
remain.
View of victims
[78]
I have received six victim impact statements from those who were close to
Matthew. His parents and brother James have read their statements to the Court in
your presence. His sister, other brother and aunt have also made statements and I
have read them carefully.
[79]
There are two themes which emerge and they are these:
(a)
First, it is very apparent that Matthew was an integral member of a
close and loving family. For that family his loss is as inexplicable as
it is profound.
Plainly he was a young man who, despite the
challenges he confronted in his final four years when he became
unwell, was a generous, family-focused person who has been
described as being “loyal to a fault”, “naïve, caring and forgiving;
never holding a grudge”. It is understandable that for these reasons he
was deeply loved by his immediate family, the wider family and his
friends. For his family his loss is inconsolable.
(b)
The second theme which emerges from the family’s statements is their
generosity of spirit. Without in anyway minimising the extraordinary
sense of loss they feel, Matthew’s family, perhaps because they knew
he would not hold a grudge against you, have been gracious towards
you. They express the wish that Matthew’s death and your direct role
in it leaves you with such a deep sense of remorse that it will compel
you to turn your life around and do good. While they understandably
seek justice and properly observe consequences should flow from
your actions, they speak of the need for you to pay your dues and
move on. This does not mean that the sense of hurt or sadness is in
any way diminished.
It is not.
But there is a commendable
compassion and generosity in what they have said to me about you.
[80]
As you know, I asked for the family’s views on life imprisonment without
parole. I am advised that the majority family view is they would like you to have the
chance to make positive changes in your life. Understanding that is not a view held
by all, the majority want you to spend a significant time in prison without parole as a
consequence of taking a precious life so easily. They are concerned that you present
a danger to others in the community and that you need to have time to reflect on your
substance abuse and your life. Once that time has passed the family believe you
should be given the opportunity of parole.
[81]
That, of course is not a matter for me or the Greenslades. It will be matter for
the Parole Board when that time comes.
Remorse
[82]
I am satisfied you are truly remorseful for what you did.
[83]
Although you defended the charge of murder you accepted culpable
homicide. You accepted throughout that your actions caused Matthew’s death.
[84]
It is correct that after you were apprehended by the Police you initially tried
to exculpate yourself by advancing the fatuous fiction that unnamed others were
responsible. That was never going to fly and eventually it dawned on you that you
had little option but to tell the truth. From that point on you not only accepted your
responsibility for the killing but you also expressed sincere remorse towards a man
who you plainly regarded as a loyal, kind and generous friend.
[85]
That same theme emerges from the pre-sentence report and also the letter
which you wrote to me and the Greenslade family and also the letter which was
handed up to me this morning. I have no doubt that Matthew’s death is something
which will haunt you for the rest of your life. I am also satisfied that you have some
insight into the pain which the Greenslade family feel and will continue to feel as a
result of your actions that day.
Conclusion
[86]
Taking all these matters into account I am satisfied it would be manifestly
unjust for a sentence of life imprisonment without parole to be imposed on you.
Minimum term of imprisonment
[87]
Having decided that it would be manifestly unjust to sentence you to life
imprisonment without parole I am now required to determine the appropriate
sentence.
[88]
The law requires me to impose life imprisonment.12 There is no option to do
otherwise.
[89]
The next question then is what is the appropriate minimum period of
imprisonment in your case.13
12
13
Sentencing Act, s 86E(2)(a).
Section 86E(4)(b).
[90]
Section 104 of the Sentencing Act requires the Court to impose a minimum
period of imprisonment of at least 17 years where one of a number of identified
aggravating circumstances are present. I agree with the Crown that none of those
circumstances is present in your case. And so s 104 is not engaged.
[91]
The next question is to determine the minimum period of imprisonment under
s 103. That provision dictates that the term of imprisonment cannot be less than 10
years and must be the minimum to satisfy all or any of the following purposes:
(a)
holding the offender accountable for the harm done to the victim and
the community by the offending;
(b)
denouncing the conduct in which the offender was involved;
(c)
deterring the offender or other persons from committing the same or a
similar offence; and
(d)
[92]
protecting the community from the offender.
Our Court of Appeal has helpfully given some guidance on the principles
which should be applied. That Court said:14
“In short the proper approach is to apply the primary comparison between
the instance offence and the [statutory datum] as the first step, and then to
use any relevant individual comparators as a check.
…
In the end whatever analysis or set of comparisons may be invoked, the
question whether the duration of a minimum period order of the present kind
is or is not excessive can only be a matter of almost intuitive judgment.
Assessment of the degree of culpability inherent in any particular offending
is not an exact science.”
[93]
Mr Herkt, in my view the principal aggravating factor in your case is the
level of violence you inflicted on Matthew. You took the deliberate step of finding a
weapon in the form of a knife. You then went back in search of your victim. You
tried to get in the front door and when that failed you went around the back. You
14
R v Howse [2003] 3 NZLR 767 (CA) at [64], [69].
smashed your way in and you stabbed him. The pathology reveals that you inflicted
at least seven wounds. Although only one wound was penetrative and ultimately
proved fatal, it is noteworthy that your attack initially targeted the vulnerable parts of
Matthew’s body; his head and his neck. When he attempted to shield himself from
your attack you changed your strategy and stabbed him in the lower chest and
abdomen area. The witnesses described the attack as frenzied. The pathologist used
the same word.
[94]
There was a degree of pre-meditation because after the initial fight you left
the scene in search of a weapon. The cricket bat was broken and so, instead, you
armed yourself with a knife and returned. You took off your shirt. At that time there
can be no doubt you intended to cause Matthew serious injury or death. That
conclusion is, of course, implicit in the jury’s verdict.
[95]
However, I also accept that this was a spontaneous, almost instinctive
reaction to claim revenge. It was driven by your loss of control and impulsivity.
You were enraged and you were determined to get him back for what you regarded
as some kind of slight.
[96]
However, stepping back and examining these events as a whole it must be
accepted that in comparison with other cases of murder which this Court often deals
with this was not the worst of its kind. I agree with the Crown that it falls in the
lower end of the scale, although not at the lowest.
[97]
I have been referred to a number of cases to assist me in reaching an
appropriate figure for a minimum term of imprisonment. Your lawyer says this
should be set at 10 years. The Crown says it should be set at 12 years.
[98]
I have been guided by a number of cases which in my view are broadly
comparable to the present.15 I have also considered a number of cases which counsel
have not referred me to.16
[99]
In all of these cases minimum periods of imprisonment of between 11 and 12
years have been adopted.
[100] In my judgment a 12 year minimum term of imprisonment is appropriate as a
starting point to meet the statutory purposes and to reflect your culpability.17
[101] As I have already discussed, you have a substantial list of previous
convictions which, in my view, warrant an uplift. Against that are your personal
mitigating factors. I accept your remorse is genuine and that you immediately
regretted your actions, particularly given that the young man you killed was regarded
by you as a friend.
15
16
R v Rangiwhaio [2012] NZHC 1751; R v Prole [2013] NZHC 1267; R v Derrick-Hardie
[2012] NZHC 2833.
R v Sauaki HC Auckland CRI-2006-092-9497, 31 October 2007: the 19 year old defendant
was walking from Takanini to Manurewa with a brother and a friend. He was
carrying a large knife. He approached the victim who was intoxicated and may have
been “looking for a fight”. The victim threw a “sloppy haymaker” at the defendant,
who responded by stabbing him deep in the chest. The victim died shortly afterwards.
The defendant was on bail for serious violent offending and had previous violent
convictions. His youth was taken as a mitigating factor. A 12 year minimum period
of imprisonment was imposed; R v Fahey [2015] NZHC 78: the defendant spent the
evening walking through the streets of central Auckland with an associate. The two
men had earlier had a verbal altercation. After they entered Myers Park, some sort of
violent incident occurred, and the victim was stabbed at least once. He retreated but
the defendant followed him, lashing out at least once more to his left side. The victim
suffered one or two wounds to his heart and lung area. He later died. A starting
minimum period of imprisonment of 10 years was uplifted by two years to reflect an
extensive history of prior violent offending; Fraser v R [2010] NZCA 313: the 18 year
old appellant and an associate left a birthday party and began to walk home when they
came upon group of partygoers, including the first victim. A heated exchange
occurred and the victim punched the appellant in the face. The appellant and his
associate went home and retrieved three knives. They then returned and found the
victim, along with a friend of his, who they tried to engage in a fight. The victims ran
away in different directions but the appellant and his associate split up and chased
them. The appellant caught up with the first victim and stabbed him in the back while
he was running, and then a further four times after he had stopped. The victim died
from his wounds. The Court of Appeal upheld an 11 year MPI in spite of the
appellant’s age and lack of previous convictions.
17
Sentencing Act, s 103(2).
[102] Furthermore, although you did not enter a guilty plea I recognise you
accepted your culpability for the killing from an early stage. The question for the
jury was whether you had the necessary murderous intent. They found that you did.
[103] I also recognise that you have a longstanding history of mental illness which,
although not directly contributing to the offending, is relevant in an indirect sense in
that the evidence supports the conclusion that the consumption of alcohol increases
your impulsivity and tendency towards violence.
Weighing your past criminal
offending against your personal circumstances, particularly your mental health issues
I am satisfied they operate to balance each other out as Mr Kayes suggested. Any
uplift is offset by your personal circumstances.
[104] This means that I conclude the appropriate minimum term of imprisonment in
your case is 12 years.
Passing of sentence
[105] Mr Herkt would you please stand.
[106] I sentence you to life imprisonment and order that you serve a minimum term
of imprisonment of 12 years.
Final warning under s 86E(6)
[107] At the end of the trial after the jury had returned its verdict I was advised that
you were to be given a first warning.
I delivered that warning.
It was later
discovered that you had already received a first warning following your convictions
for robbery in 2012. So I am now required under the Act to give you a final warning
and explain to you the consequences of another conviction for a serious violent
offence. You will be given a written notice outlining these consequences and listing
the serious violent offences.
[108] You remain subject to the three strikes law having received a first strike for
robbery and a second strike for murder. If you are convicted of any serious violent
offence, other than murder or manslaughter, then you will be sentenced to the
maximum term of imprisonment for that offence and will serve that term without
parole unless it would be manifestly unjust.
[109] If you are convicted of manslaughter after this warning you will be sentenced
to imprisonment for life. The Judge will be required to order that you serve at least
20 years’ imprisonment unless he or she considers it would be manifestly unjust to
do so. In that case the Judge must order you to serve a minimum of 10 years’
imprisonment.
[110] If you are convicted of murder after this warning then you will be sentenced
to imprisonment for life. The Judge must order you to serve this sentence without
parole unless it would be manifestly unjust to do so.
If the Judge finds it is
manifestly unjust to do so then he or she must impose a minimum period of
imprisonment of at least 20 years, unless that would be manifestly unjust, in which
case the Judge must specify that a different minimum period of imprisonment be
served. If you are sentenced to preventive detention you must serve the minimum
term of imprisonment for the most serious offence you are convicted of unless the
Judge considers that would be manifestly unjust.
[111] Mr Herkt, what this sentence means is that you must serve at least 12 years in
prison before you may be released. The sentence is one of life imprisonment. The
period which I have ordered is the minimum time that you must serve. Depending
on the view of the Parole Board it could be longer. In theory it could mean you will
never be released. Whatever the position you are going to spend a long time in jail.
[112] I hope you take on board what the Greenslade family have generously
suggested; that you use these years to improve yourself; that after you have paid
your debt to society you move on as a better person. They seek that in the memory
of Matthew.
[113] Stand down.
Moore J