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R v Bunt [2012] NZHC 1288 (6 June 2012)

Last Updated: 20 June 2012


IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-019-003439 [2012] NZHC 1288


THE QUEEN


v


JOHN TOKOROA BUNT

Hearing: 6 June 2012

Counsel: PP Crayton for the Crown

K Burroughs for the prisoner

Judgment: 6 June 2012

SENTENCING NOTES OF ASHER J

Solicitors/Counsel:

Crown Solicitor, DX GP 20023, Hamilton. Email: rgd@almaodouch.co.nz and ppc@almaodouch.co.nz

K Burroughs, PO Box 19307, Hamilton. Email: kerryburroughs@me.com

R V BUNT HC HAM CRI-2011-019-003439 [6 June 2012]

Introduction

[1] John Tokoroa Bunt, you have pleaded guilty to the murder of Wiremu Awa on

19 April 2011 at Huntly. It is now my task to sentence you. I begin by going through the facts.

Facts

[2] In April 2011 you were in a relationship with Te Hokingamai Moana who is the daughter of the deceased, Mr Awa. Your relationship had been on and off for approximately four years and you had a one year old son. You had a poor relationship with the deceased, Mr Awa, her father. There were some clear feelings of animosity between you and I am informed that in September 2008 Mr Awa was convicted of possession of an offensive weapon for offending which related to you and that he was sentenced to three months’ imprisonment for that. You have recounted being threatened by him with a knife.

[3] On the night of 19 April 2011 at approximately 8 o’clock you had been at a friend’s place in Shaw Street. You had been drinking and say you were drunk. You had gone to get some more cans of beer and you were returning in the direction of Shaw Street. On the way there you saw Mr Awa walking along. You are reported to have been in a rather confrontational mood. You had been with your friend but you had separated from him and you walked through a grass alleyway into a reserve area near to where the deceased, Mr Awa, was walking from the direction of the rail tracks towards Central and Shaw Streets. You shouted some abuse at Mr Awa and you then attacked him.

[4] Mr Awa tried to defend himself but you punched him to the ground. You then jumped on top of him and punched his face repeatedly. You then got up, with Mr Awa still being on the ground, and stomped on his head and on his face four to six times. These blows left Mr Awa unconscious.

[5] You then went back on your own to the place where you had been previously drinking and you went into the kitchen. There was a knife on the kitchen bench and

you picked it up. At that moment you must have decided that you were going to attack Mr Awa with that knife because you then went back to where he was.

[6] By this time Mr Awa had recovered a little from your attack; he was coming around and was on his knees. It seems as if he was still semi-unconscious. You came up behind him and took hold of his head. Then, using the knife, you cut Mr Awa’s throat by repeated sawing motions. In doing so you killed him. You got his blood all over you in doing this. You left Mr Awa’s body face down on the grass reserve and you went back to the house, washed yourself down, your shoes and knife, and put the knife back in the drawer.

[7] You sought assistance from your friend in hiding the body, but he would not assist. You then dragged Mr Awa’s body into overgrown shrub and bush a little distance away on a railway embankment and you covered Mr Awa’s body with scrub and bits of vegetation.

[8] The Police were not contacted about Mr Awa’s disappearance for quite some days. On 3 May 2011 the Police were contacted by his sister. She had found Mr Awa’s body. You had in the meantime indicated to a number of people that you had killed the deceased. You had not said where the body was. On 9 May 2011 the Police arrested you and interviewed you.

[9] You initially denied murdering Mr Awa in the sense of deliberately killing him, but a short way into the discussion you made a decision, which appeared to be your own, that you wanted to tell the Police everything. You then over approximately three hours, with some gaps during that, gave a very full statement to the Police. That was recorded on a DVD and I have viewed that whole interview. You freely admitted murdering Mr Awa and carrying out the actions I have described in this summary. You were emotional, at times in tears, and you clearly appreciated the terrible thing that you had done, its effects and how it had changed the lives of those who were close to Mr Awa and your own life forever.

[10] When the matter was first called in court you pleaded not guilty. You maintained that plea through to the start of the trial. At the start of the trial you

contested the admissibility of your statement to the Police. That took place over a day. I heard evidence. I gave a decision in which I held that the statement that you had made was made without pressure and by you in a sober state. I held that the statement was admissible. You then changed your plea to one of guilty. This was before the Crown had actually opened its case, which was to be the next day.

Persons present

[11] So those are the events that have led to today. I acknowledge the presence in court today of those who support you and your whanau.

[12] I particularly acknowledge the presence today in court of those who were close to Mr Awa. I have read four very moving statements from four persons who are also the victims of your crime. Noeline Moana, the deceased’s sister, came forth when her statement was read by Mr Douch. There are also statements from his partner Tania Moana and their children Totara and Te Inu Moana. They have suffered a terrible loss that they will have to endure for the rest of their lives. To have someone so close to you and so loved by you murdered, taken away, in such unfair and unjust circumstances is very hard to bear. I will not go into the details of their statements but I have read them carefully and I fully understand their great grief. So this is the terrible aftermath of what you have done.

[13] At this point I am going to say something about you because I have a pre- sentence report and a letter you have written to the Court where you express your great remorse and regret for what you have done.

[14] A particular feature of this case is that you, at the age of 21, were a sound young man with a great future ahead of you. You had a good relationship, a child, a job where you were respected and performed well. You were not a criminal type at all and not the sort of person it seems who resorted to violence. So what you have done has destroyed that life for you. It has left your partner doubly wounded, not only by her father’s death but by what you have done. Your child has lost both a father and a grandfather.

End sentence

[15] So I must sentence you. The overall sentence that I must impose on you is dictated by Parliament. The penalty for murder is imprisonment for life, except in extraordinary circumstances and there are no such circumstances here. So the sentence that this Court passes upon you is life imprisonment, and you will spend the rest of your life in prison unless at a Parole Board hearing the Parole Board decides that you should be granted parole at some time a long way into the future. So that is the sentence I impose upon you. It is life imprisonment.

Minimum term

Approach

[16] The issue that has been the primary subject of submissions from Mr Douch for the Crown and Mr Burroughs, your counsel, is what minimum term I should impose in relation to that life sentence. This is the area in which I have a discretion. I have none in relation to the life sentence.

[17] In sentencing you I have to bear in mind the principles that are set out in the Sentencing Act 2002. These include the necessity to deter both you and others. The particular feature of a terrible murder such as you have committed is the need to denounce what you have done and to recognise the impact that it has on the community and the victims.

[18] Parliament has said also in the Sentencing Act that the minimum term that must be imposed when life imprisonment is given to a prisoner in your circumstances on conviction for murder is 10 years’ imprisonment[1] and that is reserved for what is sometimes called a standard murder without any particular aggravating features. However, in another section in the Sentencing Act, s 104, Parliament has said that for very serious murders which have particular aggravating

factors the prescribed minimum term is not 10 years but 17 years. So, if these

features exist, the minimum term is to be 17 years’ imprisonment unless there are features which would make that sentence manifestly unjust.

[19] The Crown submits that your offending falls within that type of offending prescribed in s 104 of the Sentencing Act where a 17 year minimum term should be imposed. I will come to the details of that in a moment. Mr Burroughs also accepts that s 104, the section that requires the minimum term of 17 years, is engaged.

[20] Were it not for your guilty plea and other features about you personally, which I have referred to and will mention again, that would be the minimum term of

17 years. However, you did plead guilty and the Crown accepts correctly that the guilty plea, coupled with the genuine remorse you have shown, your good character, and to some extent your youth, make it manifestly unjust to impose the full 17 year minimum term. So that concession is properly and responsibly made by the Crown.

[21] The Crown does not suggest what the minimum term should be. Your counsel Mr Burroughs, who has worked for you very hard and effectively, has emphasised the mitigating factors that relate to you and suggests that a minimum term of as low as 13 years could be imposed.

[22] The authorities require me in assessing whether there is manifest injustice in imposing a 17 year minimum term to adopt a two-step approach.[2] First, I must assess whether s 104 is engaged, which requires the 17 year minimum term. Second, if so, whether it is manifestly unjust to impose this sentence.

Culpability

[23] I am now going to highlight some factors that relate to the culpability of your offending generally. Then I am going to go back to s 104.

[24] There are various aggravating factors about what you did. Your attack on Mr Awa was unprovoked. I recognise the history of animosity, of bad blood between you, but that cannot be relevant when I come to assess your culpability. You saw

Mr Awa walking up a dark alley minding his own business and not in any way seeking a confrontation with you, and you chose to seek him out and attack him. In the initial fight, you attacked his head: you first knocked him to the ground, and then you punched and stomped on his head. This was a very serious assault in itself and led to him becoming unconscious. You then left him and went to the house. There was some premeditation in the sense that you then got hold of a knife and decided to return to where Mr Awa was and attack him with the knife. I am not prepared to find that you had gone to the house looking for a knife, but certainly once you were inside and you saw a knife you decided you were going to use that on Mr Awa, and you went back and you did so.

[25] So you used a weapon against him. He was entirely vulnerable at that point. He could do nothing to defend himself. He was semi-unconscious, trying to get to his feet, and was on his knees.

[26] What you did to him was extremely brutal and callous. You sawed through his throat. Then to make things worse in terms of your culpability you did not seek help for him or go to the Police and say what you had done. You dragged his body up to the scrub and tried to hide it, and indeed successfully did so for a period.

[27] So these factors, in particular the attack to the head, this element of planning, the use of the weapon, Mr Awa’s vulnerability, the brutality of your actual act and concealing the body – they are all aggravating factors which are relevant to sentencing.

[28] However, returning to s 104, that section sets out certain matters that have to be established before the 17 year minimum term applies. The one that clearly does apply in my view here is the high level of brutality, cruelty, depravity and callousness in the murder.[3] In particular, it was brutal and callous. You chose to seek Mr Awa out, knowing of his defenceless condition, and then most savagely carry out an act certain to kill him.

[29] The application of the criterion in s 104(1)(e) means that s 104 and the 17 year minimum term applies. It is also arguable that s 104(1)(g) (which relates to the vulnerability of the victim) could be engaged, but I do not rest my decision on that.

[30] So s 104 does apply. I start with 17 years. The second question is, is that sentence manifestly unjust? I accept that it is. Your plea of guilty was made late, but I do see that in the context of you being relatively young. Once your challenge to the admissibility of your statement had failed you then accepted your fault. I bear in mind that the Crown’s case is primarily based on your own very full and frank, and in my view totally honest, initial confession.

[31] When I combine that plea of guilty with your good character, all the good things you have done in your life, and I make some allowance for your youth (although that has to be limited) and then I look at your remorse which I consider to have been heartfelt and genuine, it would be manifestly unjust to impose a 17 year minimum term.

End minimum term

[32] That being the case, I now must decide what the minimum term should be. I am still in a situation where I must acknowledge the intention of Parliament in s 104 to impose a 17 year minimum term for this serious type of offending. Now that I have found it to be manifestly unjust I must come down to the minimum term that can be applied taking into account s 104 and sentencing principles, which I do not regard as manifestly unjust. I must bring it down to a point where there is no longer manifest injustice in imposing the term.

[33] It has been suggested that one way of allowing for a discount for the guilty plea is to calculate a percentage discount on the difference between 10 years and the

17 years, say of 25 or 33 per cent, and to make a deduction in that way. This was discussed in the case of R v Terewa[4] where the Court adopted an observation in the

Court of Appeal decision in R v Hessell.[5] The Supreme Court overturned that Court

of Appeal decision, but made no reference to the issue of the 17 year minimum term in s 104.

[34] I do not propose applying that approach. In my judgment, discounting for a minimum term is different from discounting for an end sentence term. For example, a 10 per cent discount on a minimum term of five years imprisonment will involve more time served for the offender than a 10 per cent discount on an end sentence of

15 years. Murder sentencing, because of its gravity and the open nature of the life sentence, is in a special sentencing category. Rather than applying any strict formulaic approach, I look at other comparable cases and assess what would be just.

[35] Discounts of up to two years have been allowed for guilty pleas.[6] I do not feel able to give you the benefit of a discount of two years for the guilty plea given that it was late, but I do take into account the circumstances in which it was given. I consider that for the guilty plea a discount of one and a half years off the 17 years is appropriate.

[36] I then look at the other factors: your good character, your remorse and to a lesser extent your youth. I have already talked about your pre-sentence report and the fact that you had good employment, excellent prospects and had led a blameless life up until the time when you murdered Mr Awa. I have also mentioned already your remorse which was heartfelt and genuine. There were times when you were overcome by emotion when you gave your statement. You were clearly horrified by the awful deed you had done – as you should have been. You felt it, and I am going to give you credit for that. I think you were, and are, a relatively young person in terms of your mental development for your age, having seen you in that three hour recorded interview.

[37] So I combine all those factors together and they persuade me that a further year and a half deduction is appropriate. That means an overall reduction of three years from the minimum term of 17 years. I consider that any greater minimum term

would be manifestly unjust.

[38] I can say that if I had started from the 10 year minimum term, given the number of aggravating factors, the end sentence (although not as great) may have approached the same general area, and would have to have been significantly more than the 10 year minimum. However, my approach is governed by s 104 and Parliament’s intention to place certain types of murders in a particular category.

[39] Stand up please.

[40] Mr Bunt, I sentence you to life imprisonment. I impose on you a minimum term of imprisonment of 14 years.

Warning

[41] Given your conviction for murder you are now subject to the three strikes law. I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining those consequences, which lists the serious violent offences:

(a) If you are convicted of any serious violent offences (other than murder) committed after this warning, and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release.

(b) If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. This 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.

[42] Please stand down.


...................................


Asher J


[1] Sentencing Act 2002, s 103.
[2] R v Williams [2005] 2 NZLR 506 (CA) at [52]–[54].

[3] Sentencing Act 2002, s 104(1)(e).
[4] R v Terewa HC Rotorua CRI-2009-087-2744, 19 February 2010 at [49].
[5] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 at [71].

[6] For example, see R v Terewa.


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