R V KEY HC AK CRI 2006-092-12705 [2009] NZHC 549 (14 May 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                         CRI 2006-092-12705



                                     THE QUEEN



                                               v



                         
          JEFFREY KEY



Hearing:       14 May 2009

Counsel:       Mr Glubb & Mr Brookie for Crown
               Ms Dyhrberg &
Mr Brosnahan for Prisoner

Judgment:      14 May 2009


                         SENTENCE OF WINKELMANN J




Crown Solicitor, Auckland
M Dyhrberg, Barrister, Auckland

R V KEY HC AK CRI 2006-092-12705 14 May 2009
[1]    Mr Jeffrey Key, you appear for sentence today
having been found guilty by a
jury following trial on the count of murder. The maximum penalty for this offence is
life imprisonment.


[2]    The facts in relation to the offending are that on the evening of 2 September
2006 you were drinking with friends at 4/5
Fulton Crescent. You had gone to that
address earlier in the day armed with a baseball bat. You went there to meet friends.
That
evening you had drunk alcohol and consumed cannabis.


[3]    Across the road from the Fulton Crescent flat was the Otara Town Centre,
where two young men were sitting and drinking on a small grassy knoll. They
struck up a conversation with a young 13 year old girl.
At some point remarks they
made caused her to get up and cross the road to the flat. She there told members of
the group with whom
you were drinking that there were people across the road who
had said that they wanted to stab one of "the boys" and wanted her to
go and get
them a knife.


[4]    This information immediately filtered out to others of the group present. A
group of young males
then left the address, running across East Tamaki Road to the
Otara Town Centre. You were in that group. You had your baseball bat
with you.
There were about five people out and about next to the Town Centre, including the
two young men I referred to earlier.
  Your group ran towards these people. Most
ran away from you and as they did so some of them shouted at your group.


[5]    The
victim, Riki Mafi, was a 17 year old male. He did not run away. He had
no reason to do so. He was walking home through the Town Centre
to East Tamaki
Road. He was not in any way associated with the group of two men who had been
talking to the two young women and he
had no reason to suspect that he was in any
kind of danger. You approached him and struck him, causing him to fall to the
ground.
You then struck him again at least one further time when he was on the
ground. Mr Mafi suffered massive head injuries as a consequence
of the blows you
struck and died later in hospital. You left the scene and the evidence was that you
went together with some of your
friends to a night-club.
[6]    I have had provided to me various victim impact statements from Riki's
family. These include statements
from Riki's mother, his two aunts, one of whom
Riki lived with, Riki's father, Riki's sister and his great uncle and aunt. Today
in
court Riki's mother and aunt have spoken, as has Riki's father. It is apparent from
the information that I have read that your
actions, which I think can be described as
cruel and cowardly, have ripped this family apart. I do not propose to go through the
detail of what they have said, but the devastation that the loss of Riki has caused to
the family is palpable.


[7]    I also have
some information about you. I have a pre-sentence report which
tells me that you are 26 years old and that you were 24 at the time
of the murder.
You are Samoan by birth but have lived in New Zealand since you were four years
old. You are a member of a large family.


[8]    You were employed at the time of the murder. You report moderate use of
alcohol, and that you occasionally smoked cannabis.


[9]    You express remorse for, as you put it, the part you had in the death of Riki.


[10]   The probation officer says that
he cannot assess factors contributing to your
offending since you would not discuss that offending with him, and quite properly
referred him to you videotaped statement where you
had described your role in the
offending.


[11]   I would comment that from having heard the evidence it seemed to me that
your
consumption of alcohol and cannabis were contributing factors, as was your
association with the people who were at that flat that
night. I record this in case it is
of assistance to prison authorities when you are serving your sentence of
imprisonment.


[12]
  The report writer has noted that you have used your time in custody to good
advantage in that you have attended many rehabilitative
programmes, and your
counsel has provided me with many certificates from the programmes that you have
attended. You express a desire
to change, and the report writer accepts that wish as
genuine. Because of that he assesses you at being at low risk of re-offending.


[13]   It is common ground between the Crown and your counsel that it is inevitable
that you will receive a sentence of life imprisonment.
The issue in sentencing you
relates to the length of minimum period of imprisonment I should impose under
s 103 of the Sentencing
Act 2002.


[14]   The Crown submits that this offending was gratuitous street violence and that
when regard is had to comparable
cases an uplift from the standard minimum term of
10 years is justified in this case. The Crown identifies as aggravating features
of this
offending


       ­ that the attack by you on Riki involved the use of a weapon;


       ­    that you caused the death
of Riki;


       ­    that the victim Riki Mafi was vulnerable. He was an innocent bystander
            who had no reason to expect
attack and so no ability to protect himself.


       ­    there was a significant element of premeditation present in that you went
            to the scene of the attack with a baseball bat;


       ­    this was a group attack.


[15]   The Crown accepts there
are no aggravating features attaching to you
personally, and I think that is correct. I have your record before me. You have
previous
convictions, but the information I have suggests that none of them are for
violent offending and they are not of a type which tends
to aggravate the seriousness
of which I view your present offending.


[16]   In relation to mitigating features, the Crown accepts
that you expressed
remorse in your video taped statement early on and that you expressed remorse when
you spoke to the pre-sentence
writer. But the Crown disputes that you should
receive any credit for your remorse given your not guilty plea.
[17]   The Crown
submits that in light of all these matters the need to hold you
accountable for the harm done, to denounce your conduct, and protect
the
community requires an uplift from the usual minimum period of imprisonment of 10
years to one of 11 to 12 years after taking
into account all aggravating and mitigating
factors.


[18]   Your counsel has prepared careful submissions on your behalf and really
has
said everything on behalf of you that can be said. She submitted that you should
receive credit for being a person of good character;
that this present offending was
completely out of character.        Although it is accepted that you have previous
convictions, they
are limited in number and do not involve convictions for violent
offending. It is submitted that the material that has been presented
to me shows that
you are a young man who one night, whilst significantly affected by alcohol and
cannabis, engaged in an horrendous
but out of character spontaneous act of violence
that destroyed a life and seriously harmed the lives of many others.


[19]   Your
counsel emphasises that you are strongly supported by your family and
your partner of four years. Your counsel has attached letters
of support from many
people. They speak of you as being a respectful, well mannered person with the
characteristics of loyalty, generosity
and compassion. I have also had placed before
me this morning a letter from your parents in which they also speak of the fact that
you are a good son
and record their love for you. In that letter they apologise to the
family of Riki Mafi.


[20]   The point of these submissions
presented on your behalf by your counsel is
that it is submitted that I should take into account your remorse and your good
character
as mitigating features.


[21]   Your counsel accepts that the use of a weapon and also premeditation are
aggravating factors. But
as to premeditation, it is submitted that there was little time
for thought or planning on your part; so your counsel argues that
is a very slight
aggravating feature because it is submitted that this offending all occurred on the
spur of the moment. In particular,
your counsel submits to me that there is evidence
which suggests that you may not have been the person who picked up the bat as you
were leaving the Fulton Crescent address, but rather that you acquired it at some
point on the run over to the site of the attack.
All other aggravating factors are
disputed, particularly the vulnerability of the victim. It is also disputed that the
extent of
harm caused by your offending is an aggravating factor. I accept that last
submission because I think the fact of the harm caused
to the victim really is inherent
in the nature of the offence.


[22]    In relation to the offending, it is submitted that the following
features take
this out of the category of offence in respect of which an uplift of a minimum period
of imprisonment is appropriate.
Firstly, there was a triggering event which caused
you to act as you did so that this cannot be characterised as a random act of
street
violence. That triggering event was the information received from the young female
that there were males in the vicinity of
the Otara Town Centre who wanted to stab
someone in your group with a knife.


[23]    Your counsel couples this with the fact that
when you left the address there
was someone shouting at your group, and some evidence that the young female
pointed towards where
Mr Mafi and the two men who were at that point standing
near him to identify that area as the area where the people who wanted to
stab them
were.


[24]    Although your counsel accepts that these triggering events did not come in
any sense from the victim and
that they were not a credible threat to create such a
violent response, she submits that your consumption of alcohol and cannabis
explain
the extent of your violent reaction to the circumstances as you understood them. The
other matter emphasised as reducing
your culpability is that the blows with the bat to
the victim were limited in number, the weight of the evidence, it is submitted
on
your behalf, establishing two blows to the head only.


[25]    As I have said, the real issue for me in sentencing you is what
is the
appropriate minimum period of imprisonment in terms of s 103 of the Sentencing
Act. In setting that term, I am required to
consider what minimum term is necessary
to satisfy all or any of the following purposes:
       a)      Holding you accountable
for the harm done to the victim and the
               community by your offending;


       b)      Denouncing the conduct in which
you were involved;


       c)      Deterring you and others from committing the same or similar
               offence; and


 
     d)      Protecting the community from you.


[26]   In determining these issues I must assess the level of culpability involved
in
your offending to determine whether it falls outside the ordinary range of offending
for which the statutory term is designed:
         R v Howse  [2003] NZLR 767.         In
undertaking this exercise it is also helpful to consider other similar cases If satisfied
that your offending does fall
outside the ordinary range of offences of this type, it is
then necessary to determine what, if any, uplift beyond 10 years is necessary
to
achieve the statutory purposes.


[27]   In determining the culpability of your offending, I have considered the
following features
of the offending as relevant:


       (1)     First, you struck violent blows to the head of the victim, Mr Mafi,
             
 with a weapon. I am satisfied that there were at least two blows to the
               head and I proceed to sentence you on that
basis. Although as the
               Crown says there is evidence to suggest that there were more blows, I
               cannot
be satisfied of that beyond reasonable doubt.


       (2)     There was ample evidence at trial that the blows you struck were

              struck with considerable force. One witness referred to the first blow
               you struck to the head of Riki
Mafi as being like taking a pitch. There
               is also the medical evidence which demonstrated graphically the
        
      extent of the head injuries caused by your attack.


       (3)     I also accept the Crown's submission that this was a group
attack on
               Mr Mafi.     There is evidence that at least one other was kicking
               Mr Mafi in the body,
and of course you set out with a group, some of
               whom dispersed to chase the others.


       (4)     I also accept
that it is an aggravating factor that there was
               premeditation involved. I accept your counsel's submission that the
               premeditation was slight in terms of the actual attack, but at some
               point you took hold of that bat
and ran to the scene where Mr Mafi
               was and used it. It was not a spontaneous reaction to use an object to
       
       hand as a weapon, but a deliberate act on your part to take and use a
               weapon to strike Mr Mafi..


       (5)
    Although it was disputed on your behalf, I also accept that Mr Mafi
               was a vulnerable victim. In my view the vulnerability
consisted in the
               fact that you continued your attack whilst he was on the ground. By
               the time he was
lying prone on the ground with you above him
               wielding a baseball bat, he was a vulnerable victim; he could not do
               anything to protect himself from that attack.


[28]   It is a key feature of this offending that it was a random
act of street violence.
I do not consider that the triggering event in any way detracts from this point. There
is the narrative of
the young woman's statement, but there is no suggestion that you
understood yourself to be under attack or in imminent danger of
it.


[29]   When you left the flat, there is no suggestion that anyone on East Tamaki
Road or at the Otara Town Centre behaved in
an aggressive manner towards you.
Your counsel refers to the evidence that some bystanders shouted at you, but the
evidence was that
they shouted at you as they ran away. The evidence as to what
occurred on that night supports the conclusion that your group and
you in particular
were keen to take the opportunity for a fight. The fact that you were ready to do
violence on that night is evidenced
by the fact that you came to that flat armed with a
bat. The information your group received about the young men merely provided
you
with an excuse to use that weapon.
[30]   When you ran up to Mr Mafi he was just standing there. He made no move
toward you.
There is no suggestion he said anything to you. You did not check who
he was. You simply swung your bat in the most violent way possible,
striking him
to the ground, then standing over him to continue the attack. Your attack only
finished when you were pulled away from
him by others in your group.


[31]   Counsel has helpfully referred me to various authorities.      I have found
particularly helpful R v Fa'avae HC AK CRI 2006-204-748, R v Sauaki
HC AK CRI
2006-092-9497 31 October 2007, Stevens J, R v Piilua HC CHCH CRI 2005-009-
011878 1 September 2006, Panckhurst J, R v Sullivan
& Ors HC GIS CRI 2005-016-
2100 26 August 2006, Harrison J.


[32]   I consider that your offending is very similar to the offending
in the case of
Piilua. In that case, the victim was a middle-aged man who was walking home. He
was drunk and had fallen to the ground.
For no reason, the accused hit the victim on
the side of the head with a baseball bat causing a non-survivable head injury from
which
the victim died the next day. In that case, a 12 year minimum sentence was
appropriate with the Judge remarking on the gratuitous
street violence and the fact
that the victim was selected at random.         In setting the minimum period of
imprisonment, however,
the Judge took into account the youth of the offender, who
was 17 at the time of the offending.


[33]   Also of assistance is the
case of Sauaki. That case also involved street
violence, but a knife was the weapon. A minimum period of imprisonment of 12
years
was imposed, but there were other aggravating features present in relation to
the offender which are not present in your case. There
was also evidence that the
victim initially confronted the offender, although ineffectually and without a
weapon. I also take into
account what was submitted by your counsel that there was
perhaps greater evidence of premeditation in that case because the Judge
accepted
that the group the offender was in was out cruising for violence.


[34]   Your counsel also relied on R v Turaki HC AK
CRI 092-26868-04 31
October 2007, Cooper J. In that case however an uplift of the minimum term was
not sought by the Crown. From
the very short sentencing notes it is difficult to
understand the full factual matrix within which the Judge was sentencing; the
Judge
sentenced immediately following trial.


[35]   I am satisfied that given the features of the offending I have identified,
when
taken in combination, this places your offending outside the notional ordinary range
of such offending. In fixing the starting
point I take into account the features of that
offending, but I particularly weigh the overwhelming public interest in deterring
such offending. The cost to society of offending such as yours could not be more
graphically illustrated than it has been in this
case. Our streets should be safe to
walk; no family should have to go through what the family of Mr Mafi has gone
through.


[36]
  I also consider your personal circumstances in fixing a starting point. I do
not propose to take into account good character as
a mitigating factor. You have
previously served sentences of imprisonment. Although that was not for violent
offending, that fact
does not justify treating you as a person of good character.


[37]   I have taken into account that you do express remorse, but
I can give that
little weight in the face of your not guilty plea at trial. It seems to me that you still
have not faced up to the
true nature of your conduct and inevitably therefore the
consequences of it. I do however accept that you appear to be motivated
to change
your behaviour and that you have some prospects of rehabilitation.


[38]   Weighing all of these matters I am satisfied
that the following purposes of
sentencing require that I impose upon you a minimum period of 12 years
imprisonment:


       a) 
     Holding you accountable for the harm done;


       b)       Denouncing your conduct; and


       c)       Deterring you and
others from similar conduct.
[39]   On the one count of murder you are sentenced to life imprisonment with a
minimum non-parole
period of 12 years.




                                                Winkelmann J