IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI-2015-092-013800
[2017] NZHC 729
THE QUEEN
v
MICHAEL JOSEPH DAVIES
(AKA) MICHAEL JOSEPH WAIPOURI
Hearing:
12 April 2017
Appearances:
G Kayes for the Crown
J Munro and D Niven for the Defendant
Sentence:
12 April 2017
SENTENCING NOTES OF HINTON J
Counsel/Solicitors:
Kayes Fletcher Walker Ltd, Auckland
John Munro, Barrister, Auckland
David Niven, Barrister, Auckland
R v MICHAEL JOSEPH DAVIES (AKA) MICHAEL JOSEPH WAIPOURI [2017] NZHC 729 [12 April 2017]
[1]
Mr Waipouri, you may remain seated until I ask you to stand.
[2]
You have been found guilty of kidnapping Lance Murphy and then murdering
him. You now appear for sentence.
[3]
In respect of the murder conviction, the penalty for murder is life
imprisonment, unless it is considered manifestly unjust.
[4]
In respect of the count of kidnapping, the maximum penalty is 14 years’
imprisonment.
[5]
Before I begin with the formal sentencing process, I would like to
acknowledge the presence of the members of Mr Murphy’s family and his friends
who are here today. You have lost a dear father, son, brother, friend and relative.
There is nothing I can say or do that can change that, but I extend to you the deepest
sympathy of the Court.
Facts
[6]
I first turn to the facts of this case. I realise it will be difficult for the
members of Mr Murphy’s family and his friends to hear the events surrounding
Mr Murphy’s death again, but it is unfortunately unavoidable.
[7]
Mr Waipouri, you knew Mr Murphy well, and had been his friend for over
30 years. You were the godfather originally of one, and then of two of Mr Murphy’s
children. You lived in the same town as Mr Murphy and saw him practically every
day.
[8]
You were very close to Mr Murphy’s deceased wife. After she died and her
mother died, you became convinced that Mr Murphy had killed them both.
[9]
In fact the evidence was clear (including medical evidence) that Mr Murphy’s
wife died of cancer from which she had suffered for some time and that Mr Murphy
had cared for her lovingly and devotedly. It was also clear that Mr Murphy’s
mother-in-law was very elderly and had died of serious heart disease. Again, there
was uncontroverted medical evidence to that effect.
Again, it was clear that
Mr Murphy had helped his mother-in-law as best he could, especially after his wife
had died.
[10]
It is appropriate to say here that any slur on Mr Murphy’s reputation as a
result of your allegations is not justified.
[11]
Further, there is no suggestion, even from you, Mr Waipouri that Mr Murphy
had ever caused any harm to you, over the lengthy period of your relationship. In
fact, he and his wife were described as having always been there for you.
[12]
It seems that both you and Mr Murphy were, or had been, involved in
drug-taking. One of Mr Murphy’s daughters said that Mr Murphy had lost his way
after her mother died, something which her mother would have found deeply
upsetting.
[13]
On Thursday 19 November 2015, when Mr Murphy came to your home for a
cup of coffee, you saw a dragon with ten heads coming out of his chest. You decided
you had to kill Mr Murphy. You said it was him or you.
[14]
There was evidence that you had arranged to meet with some associates from
up North to assist you. This meeting apparently did not take place.
[15]
You arranged with Mr Murphy to go to the house of friends of yours some
distance out of Auckland on Saturday 21 November 2015, where you said there
would be drugs available. That was a false pretence. You and Mr Murphy drove in
Mr Murphy’s car from Waiuku to Goatley Road. You took handcuffs with you from
your home. At some point during the journey, Mr Murphy’s phone was dismantled
and put in the centre console of the car.
[16]
During a conversation in the lounge at Goatley Road with the occupants, you
said you should take your dog there for pig hunting. Mr Murphy questioned whether
the dog was up to it. Without warning, you collected a metal bat, which you knew
was kept at the door of the house, and hit Mr Murphy hard on the elbow.
[17]
Mr Murphy cried out and jumped up. He did not strike back but tried to
escape. The only escape was through you, which led to you hitting him with the bat
a number of times on his face. You told him to sit down and he did so. You then told
him off for a period of time. Mr Murphy sat and listened to you. He still did nothing
to retaliate.
[18]
You then became intoxicated by a drug, which you said was accidental, and
you retired to a bedroom.
You gave instructions to someone to watch over
Mr Murphy. He spent the night in another bedroom.
[19]
You had Mr Murphy’s car keys. When you woke up, you sent others in the
car to get you some cigarettes. After you had a cigarette and a drink, you went into
the room where Mr Murphy was lying and told him to put cable ties on his wrists.
He did so. You then pulled out handcuffs. You said he looked really frightened at
the sight of the handcuffs. You handcuffed him and hooded him, tying the hood to
the back of his belt. You gave Mr Murphy (to use your words) an ultimatum - you
said, if he signed his house over to his children, gave them all of his money, and
looked after his grandchildren, then he would live. If he did not, then he would die.
You said that Mr Murphy did agree to sign his property over, but that you thought he
was too eager, and decided he was not sincere.
[20]
So you then put Mr Murphy in the back of his car and drove him to
Noakes Hill Road. You were accompanied by a third person. When Mr Murphy put
his head up during the trip to call for help, you assaulted him with your fists.
[21]
You stopped to bathe and cleanse yourself. Afterwards you opened the car
boot and hit Mr Murphy at least half a dozen times with a bat.
[22]
On arrival at Noakes Hill Road, you dragged Mr Murphy from the car by his
belt. You once again gave him the choice between signing over the house or being
killed, but Mr Murphy did not reply. Mr Murphy may well have been unconscious,
with all of the blows he had received.
[23]
You took Mr Murphy to the top of the hill.
He was still hooded and
handcuffed. He was defenceless. You beat him again with a bat. When that was
insufficient to carry out your goal, you proceeded to beat Mr Murphy to death with
blows to his head, using a branch of a tree.
[24]
You subsequently destroyed your phone, burnt the clothing you had been
wearing, threw the branch you had used to beat Mr Murphy with into a bush and
attempted to dispose of Mr Murphy’s car.
[25]
When first spoken to by police, you lied about your involvement in the death.
In a subsequent interview with the Police, you admitted to killing Mr Murphy. You
said you intended to kill him. You said to the Police that you would like to tell them
where Mr Murphy was, but “he does not deserve a burial, that fucking bastard”.
Victim Impact Statements
[26]
When you murdered Mr Murphy, you also caused life-long and devastating
harm to a large number of other people.
[27]
There are a number of victim impact statements before the Court from
Mr Murphy’s mother, two sisters, two of his children, and a close friend. I have read
them all carefully and some have been read in Court today.
[28]
Mary Murphy, the mother of Lance Murphy, read out her statement. She
describes Mr Murphy, her first-born son, as someone who cared for those around
him, and who always helped other people. Mary and her husband have suffered
greatly, both physically and emotionally, from the loss of their son. Mary has been
in hospital three times for stress-related illness. Her husband, Ray, has diabetes
which has been difficult to control due to stress. Both are exhausted and feel they
will never get over what you have done. Mary Murphy said, “We brought Lance
into this world surrounded by love, but the way he went out was sickening.”
[29]
Chralle Murphy, one of Mr Murphy’s daughters, had her statement read out.
She spoke of a kind and loving father who acted as a mentor to her, helped raise her
children, and whose absence has left a big hole in her heart. She wrote of the effect
Mr Murphy’s death has had on her and her children. Without him, she feels lost, and
her children have suffered greatly.
[30]
Christy Thompson, another of Mr Murphy’s daughters, has also written of
her and her brother James’ experience. She talked of the difficulty of losing their
mother, their grandmother and their father all in the same year. Having been closer
to their mother’s side of the family, they now feel like they have no family at all.
She described the worry and panic attacks that she experiences and the enormous
impact, including financial, that your actions have had.
She says her brother,
James Murphy, has struggled and made poor choices since his father’s death. He is
trying to make positive changes in his life and has recently had a baby girl. He
struggles with the fact that his daughter will not know her grandfather. She says they
are all lost without their father.
[31]
Coralie Murphy, one of Mr Murphy’s sisters, read out her statement. She
described how she has been physically and emotionally affected by your actions.
She struggles to sleep and has suffered from depression. She has nightmares about
Mr Murphy’s last moments and cannot get out of her head what you did to him. She
is no longer the happy person she used to be.
[32]
Shannon Murphy, one of Mr Murphy’s sisters, also wrote a statement. She
has written of how Lance used to spoil her as she was the youngest child in the
family, and how good he was to his family. Since his death, she has struggled at
work, finding it hard to concentrate. She had to take time off work when Lance went
missing and during the trial, and so has been impacted financially. She also wrote of
how she is no longer the outgoing person she used to be, finding it difficult to relate
to others and feeling like she has lost her trust in the world.
[33]
Barbara-Anne Hughes, a close friend of Lance Murphy, says she regarded
Lance Murphy as a father figure, and no longer feels safe or that she can trust people
because of what you, a close friend of Mr Murphy, have done.
[34]
These statements are very moving. They speak of the loss they have suffered
as a result of your actions, Mr Waipouri. A sentiment that is stated again and again is
that they cannot understand how you, someone who was a close friend of
Mr Murphy, could have done such a thing. It is clear that Mr Murphy’s loved ones
have suffered considerable harm, both emotionally and physically, as a result of your
actions.
Personal circumstances
Pre-Sentence Report
[35]
I have received a full pre-sentence report.
[36]
You are 52 years old. Prior to being remanded in custody you were earning
money from cutting firewood.
You have reported as being in a long-term
relationship, and have four children, all of whom remain in the care of your partner.
[37]
The report-writer records that you described your life as “troubled”. Your
mother passed away when you were 18 months old. Your father, an alcoholic, could
not care for you or your brother. You were adopted to a Northland family and raised
in the Northland community of Pawarenga.
[38]
During your teens you left school and temporarily moved to Auckland after
reuniting with your birth father. You spent a number of years living a transient
lifestyle on the streets of Auckland and you became a patched member of the
Nomads gang. However, you deny being a member and say that you have not been
for some years.
[39]
Your criminal offending history spans 37 years and began when you were 16.
You have numerous offences for theft, fraud, driving, alcohol, drugs, violence, and
non-compliance with community sanctions.
[40]
You claimed to the report-writer that you do not use illicit drugs, and have
not used them for some time. You acknowledged consuming GBL the day before
you killed, and said this was accidental. The report-writer did not consider your
statements about drug use to be credible.
[41]
You did not express any motivation to address your offending behaviour and
did not demonstrate any remorse for your actions. Rather, you described your
actions as retribution for the deaths of Mr Murphy’s wife and mother-in-law, who
you believed Mr Murphy killed. The report-writer considered that you appeared to
have a true belief that taking Mr Murphy’s life was an act of cleansing and that it
was therefore justified. You stated that you planned the kidnapping, “but it got out
of hand”. When the probation officer asked you about the level of violence used,
you commented that it was what you had to do.
[42]
The report-writer said that key factors contributing to your offending include
your propensity for violence, use of illicit drugs, pro-criminal associates and your
offending-related attitudes.
She noted that you have a long history of violent
offending and lack any insight into how your offending has affected others. She
considered that you are at a high risk of reoffending and causing harm to others, and
that your risk is likely to escalate if you remain resistant to actively addressing your
offending behaviour. The report-writer also stated that based on your risk, you can
be referred to a Departmental Psychologist to complete a suitable treatment plan.
Character References
[43]
No references or letters of support have been filed with the Court prior to
sentencing, on your behalf, on the basis that the defence accepts your personal
circumstances will have no impact on the sentence to be imposed.
Submissions
[44]
I have received full sentencing memoranda from both Mr Kayes, on behalf of
the Crown and Mr Niven, on behalf of the defendant.
[45]
Mr Kayes, for the Crown, submits that a sentence of life imprisonment is
appropriate, and that a starting point minimum period of 20 years’ imprisonment
should be imposed, with an uplift of one year for your previous convictions. He
submits that there are a number of aggravating features to your offending, and there
are no mitigating features, either of the offending or of you personally. Overall, he
submits that the minimum period of imprisonment should be 21 years.
[46]
Mr Niven accepts, on behalf of the defence, that the presumption in favour of
life imprisonment is not displaced and a sentence of life imprisonment needs to be
imposed.
Mr Niven submits that a starting minimum period in the region of
17 years’ imprisonment would be appropriate, on the basis that the gravity of the
offending is not as great when compared to comparable cases.
[47]
He further submits that there are mitigating factors that should be considered.
The first is the level of paranoia he says you experienced, second, is the resulting
sense of a threat and your claim that you were motivated by a desire to defend
yourself. Third, he refers to the impact a lengthy non-parole period would have,
given your age. He notes that, even if a 17 year minimum period is imposed, you
will be close to 70 before you are eligible for parole, and therefore the sentence will
include a higher proportion of your remaining years than it would for a younger
person. At the conclusion of his submissions, Mr Niven accepts, based on the
particular circumstances of the offending and of you personally, that it would not be
manifestly unjust to impose a minimum period of imprisonment of 17 years.
[48]
Mr Kayes also submits, and there is no argument to the contrary, that
eight years’ imprisonment is appropriate for the kidnapping charge, to be served
concurrently with the sentence for murder.
Principles of Sentencing
[49]
I turn to the principles and purposes of sentencing. In sentencing you today, I
must have regard to ss 7 and 8 of the Sentencing Act. In particular, I have had regard
to the need to hold you accountable for what you have done, to denounce the
conduct in which you were involved and deter you and others from committing the
same or similar offences. I must also consider the need to protect the community.
[50]
I have taken into account the gravity of your offending, including your level
of culpability. I have considered the seriousness of this type of offending and the
need to impose a penalty at, or close to, the maximum for offending which is very
serious offending of its kind. I have also taken into account the general desirability
of consistency of sentencing levels with similar offenders committing similar
offences.
I must also consider the effect on the victims of your offending,
particularly the effect on Mr Murphy’s family.
[51]
I must also take into account any aggravating and mitigating features of your
offending and any personal to you.
Sentencing approach
[52]
Under s 102 of the Sentencing Act, the presumption for a sentence of murder
is life imprisonment, unless manifestly unjust. It is accepted here that a sentence of
life imprisonment is appropriate, and that is the sentence I am imposing upon you.
[53]
What must be determined today is the minimum period of imprisonment that
you must serve before you are eligible to apply for parole.
[54]
At this point, I wish to make it clear to everyone present that the minimum
period of imprisonment determines when you are first eligible to apply for parole.
Whether you in fact are released, is a decision for the Parole Board. The Board must
consider at the relevant time whether you remain a risk to the community. There is
no guarantee you will be granted parole. If you are, whether on the first application
you make, or at another time, you will be subject to parole conditions for the rest of
your life. If you were to breach them or reoffend, you would return to prison and
continue to serve a sentence of life imprisonment.
[55]
Section 103 of the Sentencing Act says that the minimum term of
imprisonment ordered may not be less than 10 years.
[56]
Where there are special circumstances, as described in s 104, I have to
impose a minimum period of at least 17 years, unless I am satisfied it would be
manifestly unjust to do so.
[57]
The Crown submit, as you have heard, that there are four circumstances
under s 104 which do establish special circumstances here. First, they say the
murder was committed after calculated and lengthy planning. Second, that it was
committed in the course of other serious offending, namely the kidnapping. Third,
that there was a high level of brutality and callousness in the commission of the
offence. Fourth, that Mr Murphy was particularly vulnerable. The defence submit
that of these, there is only one factor present, namely, that there was a high level of
brutality and callousness.
[58]
There is no doubt this was a shockingly brutal and callous murder. This is
the point that stands out the most. The brutality of your actions is obvious from the
facts as I previously described. You hit Mr Murphy on multiple occasions with a bat,
you punched him in the face, you tried to stab him in the chest with a screwdriver.
Your brutality is particularly illustrated by the savagery with which you carried out
the killing blows. You began by using a bat, but then used a tree branch to deliver
the killing blows, caving in Mr Murphy’s skull. You described the force of the blows
a number of times saying things like, “I strike hard and I strike for keeps”. The
pathologist’s evidence showed that the wounds were consistent with multiple blows
delivered with great force by a blunt object. Her opinion was that the blow which
killed Mr Murphy was such a devastating blow, it was incompatible with life.
[59]
You were completely callous in your actions. You did not kill Mr Murphy in
a rage or in a momentary loss of control.
The killing was premeditated and
deliberate, and the violence was prolonged and persistent.
You displayed no
compassion for your friend at all. The Court of Appeal noted in R v Frost that the
actions of a defendant after the death can also be an indicator of callousness. While I
accept that your burning of your clothes could have been a ritualised act, you
destroyed your phone, attempted to dispose of the deceased’s car and when first
spoken to by police, lied about your involvement in the death.
In your later
interviews with police, you said that after killing Mr Murphy you dumped him “like
a pile of shit”, and when you told your partner that you had killed him and she asked
where the body was, you said it was “probably in the bush being eaten by pigs”.
These are not the “spontaneous outpouring of remorse that might point away from
callousness” as described by the Court of Appeal in R v Frost. I consider there was
an extremely high level of both brutality and callousness in the commission of the
offence.
[60]
Mr Niven submits that your state of paranoia needs to be considered when
judging the level of brutality or callousness under s 104. I do not agree. The
Supreme Court in Gottermeyer v R1 held that s 104(1)(e) is applied to the objective
manner in which a murder is committed. Your subjective motivation does not alter
the brutality or callousness of your actions.
[61]
I consider that the murder of Mr Murphy was committed in the course of
other serious offending, namely the kidnapping. It is accepted that kidnapping is a
serious offence. Mr Niven submits that the murder was not committed in the course
of the kidnapping because the kidnapping was carried out to facilitate the crime of
murder. I do not consider that to be correct in itself. Some of your evidence
suggested your prime purpose was the kidnapping. Certainly that came first. But in
any event, Wylie J in R v Bracken,2 which was upheld on appeal,3 found that this
factor was present in very similar circumstances where a victim was murdered after
being kidnapped, as kidnapping is a continuing offence.
Here, you kidnapped
Mr Murphy and in the course of that offence, you murdered him. On the simple
language of the provision, it applies.
[62]
I do not consider that your actions necessarily involved calculated or lengthy
planning, again emphasising the words used in the section. While you formed the
intention to kill Mr Murphy at some point on the Thursday prior to his death and
took preparatory steps to carry this out, such as lying to Mr Murphy to get him to go
with you to Goatley Road, and bringing handcuffs, I am not satisfied that the level of
planning you undertook extended a great deal further than that. Most of the steps
1
2
3
Gottermeyer v R [2014] NZSC 115 at [5].
R v Bracken [2012] NZHC 3158 at [40].
Bracken v R [2016] NZCA 79.
you took were arguably based as much on spur of the moment decisions or were
directed around planning of the kidnapping.
[63]
I agree that Mr Murphy was vulnerable in the circumstances of your
offending. He was most likely unconscious, or near unconscious, and was lying
prone when you killed him. He was also hooded and handcuffed and in a remote
place. However, I do not take this into account under s 104, out of concern to avoid
double-counting and bearing in mind R v Ying4 cited to me by Mr Niven.
[64]
There are no mitigating features of the offending.
[65]
I have considered the various authorities referred to me by counsel, 5 and in
reviewing them, I consider that viewed overall the case is very analogous to
R v Bracken.6 In Bracken, the defendant became angry with the victim, forcing the
victim to get on the floor. The victim’s hands were tied and a T-shirt was pulled over
his head. He was left overnight. The next day, the victim was put into the boot of a
car and driven to a remote location. He was pushed down a bank and then assaulted
with a thistle grubber. The victim was hit seven times, eventually an artery was
severed and he died. The defendant took steps to cover his tracks. Wylie J imposed
a starting point of 20 years’ imprisonment, with an uplift of one year for the
defendant’s previous convictions, related offending, and his lack of remorse,
although I note that lack of remorse is not an aggravating factor.
[66]
I adopt as a starting point a minimum term of 19 years’ imprisonment.
[67]
I now consider the aggravating and mitigating factors personal to you. There
is one aggravating feature personal to you which the Crown contend justifies an
uplift to the minimum term of imprisonment and that is your criminal record. You
have been convicted of 91 offences, and sentenced to imprisonment for 40 of them.
Relevantly, they include convictions for kidnapping, injuring with intent, various
4
5
6
R v Ying (2004) 20 CRNZ 1078.
R v Te Awa and Addison [2014] NZCA 615; R v Bracken, above n 5; Dawood v R [2013]
NZCA 381; Pandey-Johnson v R [2012] NZCA 595
R v Bracken, above n 2.
forms of assault, possession of an offensive weapon and threatening to kill. The
Crown seek an uplift of six months to one year.
[68]
Mr Niven points out that the last conviction for violence or a violence-related
offence was a long time ago. I have decided not to uplift for your previous history,
also bearing in mind the high starting point of a minimum term of 19 years’
imprisonment.
[69]
With respect to the mitigating features personal to you put forward by
Mr Niven, I do not consider that the fact your age means your sentence will have a
greater impact on the years of your remaining life can be relevant. I have already
rejected your claim that you were acting in, or motivated by, self-defence.
[70]
Dr Goodwin gave expert evidence that you suffer from low-grade, chronic
(as in longstanding) paranoia. Mr Niven submits that the events over the days
leading to Mr Murphy’s death took place in a period of heightened paranoia.
However, your views remained much the same at trial, so I cannot accept that.
[71]
I do not consider that longstanding paranoid personality traits merit a
discount. This does not amount to a mental health illness or disorder. In fact, I
consider these traits underline the risk you present to the community.
[72]
The end result is a minimum term of 19 years’ imprisonment in relation to the
murder of Mr Lance Murphy. As this period exceeds 17 years, I record, as required
by s 104, that I do not consider it manifestly unjust.
[73]
I will now very briefly address the kidnapping.
[74]
Section 23 of the Sentencing Act provides that a cumulative sentence may
not be imposed in addition to an indeterminate sentence of imprisonment. I am
required to impose an indeterminate sentence of imprisonment with respect to
murder. Therefore, only a concurrent sentence may be imposed.
[75]
In relation to the kidnapping, Mr Kayes submits that a concurrent sentence of
eight years’ imprisonment be imposed. There are no arguments to the contrary. On
the basis of R v Bracken, which involved very similar factual circumstances, I
consider that eight years’ imprisonment is appropriate in this case.
Sentences imposed
[76]
Mr Waipouri, will you please stand. I will now impose your sentence.
[77]
For the murder of Lance Murphy, you are sentenced to life imprisonment.
You are to serve a minimum of 19 years’ imprisonment.
[78]
For kidnapping Lance Murphy, you are sentenced to eight years’
imprisonment to be served concurrently with the sentence of imprisonment imposed
in respect of the murder charge.
[79]
Murder and kidnapping are qualifying serious violent offences for what is
known as our three strikes legislation. On the basis of your convictions, you are now
subject to the three strikes law.
I must therefore give you a warning of the
consequences of a conviction for another serious violent offence.
[80]
The warning is this. If you are convicted of any serious violent offence other
than murder committed after this warning, and if a Judge imposes a sentence of
imprisonment, you will serve that sentence without parole or early release. If you
are convicted of murder after this warning, then you must be sentenced to life
imprisonment. That will be served without parole, unless it would be manifestly
unjust.
In that event, the Judge must sentence you to a minimum term of
imprisonment. You will be given a written notice outlining the consequences that I
have just described and which also lists the serious violent offences.
[81]
Mr Waipouri, stand down please.
-----------------------------------------------Hinton J