Police v Kendall [2012] NZHC 2908 (5 November 2012)

Last Updated: 23 November 2012

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2012-054-1537 [2012] NZHC 2908

NEW ZEALAND POLICE

v

EVAN MARK KENDALL

Counsel: A M Read for Crown

F D Steedman for Prisoner

Sentencing: 5 November 2012

_{SENTENCING NOTES OF WILLIAMS J}

[1] Evan Kendall you appear for sentencing on the serious charge of attempted murder. I am going to run through the facts as I understand them and make an assessment of the seriousness of your offending in order to establish a starting point, talk a little bit about you to decide whether I will make any deductions from that starting point, and then pass sentence finally.

[2] So this story ends, in a sense, with a sad incident that occurred on Sunday,

19 August this year. You were together with (what is described in the summary of facts), as your partner – certainly someone with whom you had a personal relationship and had had for nearly two years by that date.

[3] It appears that the relationship was not a smooth one. It was full of conflict. It had coping issues attached to it. It appears there was drinking. For whatever

_{reasons anyway, this was a conflictual relationship, and on 19 August this year you}

NEW ZEALAND POLICE V EVAN MARK KENDALL HC PMN CRI-2012-054-1537 [5 November 2012]

were at her home having failed to find (for yourself) somewhere to live. You argued

– primarily over you not getting your own place.

[4] Your partner buys a cask of wine from the supermarket. You appear at least at that stage, to be enjoying each other’s company, you play a board game – she’s drinking, you’re not.

[5] An argument develops over a tiny thing – literally – ants on the bench. You take a pocket knife with a 6 cm blade that you always carry apparently and in the context of that argument you cut the wine bladder open spilling the contents. A bigger argument develops over that. It appears from the summary of facts, that you both become upset by the argument – you were both crying. Your partner tries to catch a taxi to go and buy a replacement cask and you ring and cancel it.

[6] Anyway, there is a disagreement then over whether she can borrow your coat to go out because it is raining outside, and that is where things degenerate into tragedy. You punch her twice in the head so hard and with such effect that she thinks you had broken her nose. Then you are on top of her banging her head against the floor bruising both shoulders. That was a point at which perhaps a stop could have been called but it wasn’t. You later say to the police that at that point you “lose it”.

[7] You run around locking every door and window in the house. And you light a fire downstairs – in the house. Your intention you say, although you don’t recall whether you say it out loud or just think it, is to kill her and yourself in some kind of dramatic murder/suicide scenario. But that does not work – the fire goes out.

[8] Your partner has the where with all having been beaten, to clamber out through a window while you are distracted with the fire. Still in a rage, you run out after her and try to drag her back into the house, committed it seems, to this scenario of murder/suicide. She falls over; you climb on top of her and pull out your knife. You stab her in the neck and shoulder three times.

[9] The Crown is correct, it is incredibly lucky that this is not a murder sentencing – a few centimetres either way was all it would have taken.

[10] Then you leave her on the ground – injured, bruised and bleeding, and you go back inside the house to get that fire going again. Neighbours alerted by the commotion, come to help your partner who is still on the ground outside.

[11] At this point your plan changes – your plan is then to barricade yourself inside her house and to commit suicide by slitting your wrists. But you cannot find the knife.

[12] It just all seems to go so incredibly badly from start to finish.

[13] You escape out the window but you are overcome by a sense of doing the right thing at last. And you get a taxi that you caught to drop you off at the police station. You confess to what has happened.

[14] Your partner of course at this stage is in a terrible state. She requires three hours of surgery. She spends days (I think), in intensive care, and after that in a general ward. She needs a tracheotomy. It shows just how close to utter tragedy this had come. The injuries she suffers are a cut and swelling to the bridge of her nose from that first punching incident, a stab to the left side of her neck where her trachea is torn creating an underlying haematoma, a stab wound to the left shoulder, and a stab wound to the right chest wall Mr Kendall.

[15] On any view of it, this was a serious, senseless, sustained attack on someone you clearly felt the need to control but did not have the skills to do so. Mr Steedman said you, yourself would accept that the facts that I have narrated them, describe a wicked and terrible series of acts.

[16] There were several points at which you could have stopped doing what you were doing. It is not as if this was completely instantaneous, spontaneous rage, it was not. This was a series of events over a relatively extended period. There were opportunities to stop after the first attack, after the lock-up of the windows and doors, after the fire, after the dragging incident, and then it was too late.

[17] What were the triggers? Well, tension over not having somewhere to stay; wine –probably; ants and a jacket. That is why I used the word ‘senseless’ at the start. Anyway, you ultimately accept that your intention in your rage was to kill and so you face a charge of attempted murder.

[18] Mr Kendall in my sentencing, I must denounce what you have done. I must deter others from doing things similar to what you have done, and I must protect the victim here and the community. You must also be held accountable and responsible for what you have done, and there is no hiding from that now. And I must finally be consistent in the sentence I pass in light of the seriousness of the charge you face, and in light of the gravity of this particular case.

[19] Significant matters for me here are that you used a weapon, that the violence you visited upon this woman was serious, and the injuries she suffered as a result of that violence were also serious. As I said, this was a sustained attack, not a spontaneous frenzy but a sustained attack.

[20] Having read the victim impact statement, the impacts of this on this person with whom you had a personal relationship lasting two years were not just physical, as you know now. Two words come to my mind in reading her statement. First, trauma. It must be extraordinarily difficult for a woman of any age but especially one of 50 to heal from this sort of trauma occurring in her own home. The second word is trust. She says herself I am finding it extraordinarily difficult to trust people now. You have to wear responsibility for these impacts on this woman.

[21] In those circumstances, the cases say, and I agree, that an appropriate starting point in terms of calculating your prison sentence is seven years.

[22] Let me talk a little then about you and your circumstances.

[23] You have previous offences of possession of a knife. I thought carefully about whether I should upgrade the starting point because of that. And I have decided in the circumstances of your case that I will not, although I expect in the end it probably isn’t going to matter that much.

[24] You pleaded guilty early and I agree that you accepted responsibility at an early stage, you must have. You got the taxi to the police station. And despite, as Mr Steedman has said, his advice to you that you should keep your mouth shut while you were there, you made a statement. I accept that means that at the time and subsequently you accepted responsibility.

[25] There seems to be a question in everyone’s mind about whether you are capable of remorse. I don’t know you, and I don’t know what there is in your heart. Perhaps you struggle with the whole idea of empathising with other people – with thinking yourself into their shoes and perhaps that is why you found it possible to do what you did. Nonetheless, I accept that you accept responsibility at least.

[26] That brings me to the question of your mental health. I received a report from a forensic psychiatrist of some standing whose report is careful, thoughtful, thorough and sensitive to your circumstances I think Mr Kendall. He makes no bones about it – you’re not suffering from any mental illness. But, he says your family background, your history of being bullied when much younger, and perhaps other things, have caused you to struggle to form meaningful bonds with others, so that you live a life of social isolation, punctuated it seems, by alcohol abuse as a coping mechanism.

[27] Your story is a grim story – a sad story, in my view. The forensic psychiatrist said that you appear to have a major problem with personality functioning. You struggle to cope with life issues – it’s just who you are. And the accommodation fight – indeed the fact that you struggled to find accommodation at all, seems to underscore that. He said you also struggle with the stresses and demands of relationships, and one of your responses to those stresses and demands is frequent aggressive outbursts and loss of control. In short, it appears that you lack the skills and the resilience to cope in relationships where other better functioning people might have those skills and that resilience.

[28] In my view those factors count for something. They perhaps suggest to me that you did a wicked and terrible thing but you may not be a wicked and terrible man. Nonetheless, you must be held accountable and responsible. Combining those

factors with your early guilty plea justifies in my view a three year discount on the seven year starting point.

[29] Mr Kendall you are therefore sentenced to four years’ imprisonment on the

count of attempted murder.

[30] The prosecution has asked that a protection order be made against you. I have carefully considered these facts, and of course it is amply justified. I make such an order and you of course must not make contact with the victim ever again. You understand that.

[31] Finally Mr Kendall, this crime was a serious crime, so serious in fact that I

must deliver a formal three strikes warning to you. And this is it. [32] You are now subject to the three strikes law.

[33] I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written warning.

[34] 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.

[35] If you are convicted of murder after this warning then you must be sentenced to life imprisonment. That must be served without parole unless it would be manifestly unjust to do so. In that event the Judge must sentence you to a minimum term of imprisonment.

[36] Mr Kendall you are being sentenced to four years’ imprisonment and you must serve that term. But I hope you will use this opportunity to try to heal the problems that you carry inside you so that when you do get out you can find the resilience, the skills, and the sense of character to contribute to the community in the way that you should. Good luck with that.

_{[37] Stand down.}

Williams J