R v Windley [2014] NZHC 1438 (27 June 2014)

Last Updated: 4 July 2014

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2013-031-580 [2014] NZHC 1438

THE QUEEN

v

BRAYDEN WINDLEY STOYAN MILITCH MICHAEL ZIMMERMAN

Hearing:	27 June 2014
Counsel:	B Vanderkolk and D Davies for Crown F S Steedman for Windley R Crowley and D Goodlet for Militch O S Winter and C Linton for Zimmerman
Sentence:	27 June 2014

_{SENTENCING REMARKS OF RONALD YOUNG J}

[1] Mr Zimmerman, Mr Militch and Mr Windley, during the course of your trial for murder you each pleaded guilty to manslaughter which the Crown accepted was an appropriate plea. That means that the Crown accepted that you did not intend to kill Mr Valentine but your illegal use of a knife unlawfully caused his death. You had all previously pleaded guilty to conspiracy to pervert the course of justice.

[2] The facts were that you Mr Zimmerman and you Mr Windley were at a barbeque in Levin on the evening of 1 February 2013. There was some background between a circle of friends where it was alleged your partner and Mr Valentine, Ms Ham, had urinated on or someone else had urinated on another person’s

_toothbrush.

R v WINDLEY, MILITCH AND ZIMMERMAN [2014] NZHC 1438 [27 June 2014]

[3] In addition, it was suggested you, Mr Windley, had borrowed a hard drive from Ms Ham, had not returned it and she in turn had taken a hard drive in your possession, effectively as payment. Mr Zimmerman, you seemed to be particularly angry at these events. You and Mr Windley were drinking at the barbeque and discussing how upset you both were. The two of you then initially confronted the man who was said to have urinated on the toothbrush but denied the incident. The two of you then decided that you were going to have it out with Mr Valentine and Ms Ham. Someone present at that address became sufficiently concerned about your conduct, that they sent a text warning to Mr Valentine that you were coming to his house. He became upset. He phoned you Mr Zimmerman, and the two of you began abusing and yelling at each other and threats were made both ways.

[4] Mr Zimmerman, you and Mr Windley then decided to go to Mr Valentine’s house to sort things out. As I have said, both of you had consumed considerable alcohol. Mr Militch was contacted and he agreed to assist you both. The three of you then discussed taking weapons to Mr Valentine’s house and agreed to do so. You Mr Militch obtained at least two knives, a yellow and a blue handled knife, and a knife steel. Mr Zimmerman you tried to take a knife or a screwdriver you’re your address but your partner told you not to do so. But it seems clear that a third white handled knife was taken.

[5] In addition, as I have said, you had the sharpening steel and you took two pit bull dogs with you. You arrived at Mr Valentine’s address. There was a heated exchange. Mr Valentine and Ms Ham were present and another man who had hidden in the house. Of course the three of you should never have been there. You Mr Militch struck Mr Valentine with the sharpening steel hitting him on the top of the shoulder and the steel shattered. But Mr Valentine did not react violently. You then moved away holding the white handled knife. It was of course three men onto one.

[6] Mr Zimmerman you were at the front of the house and you and Mr Valentine began talking. Mr Valentine at that stage had a metal pipe but that was taken from him. You Mr Windley then began abusing Ms Ham threatening her. Mr Valentine heard the threats and pushed you away, telling you not to talk to her like that. You

stumbled off the deck and you and Mr Valentine began wresting on the ground. Mr Valentine seemed to be getting the better of you but eventually you moved to where Mr Militch was standing holding the knife. Mr Zimmerman, you were in the area where the fight occurred but not directly involved.

[7] At that point you Mr Windley and you Mr Militch were exchanging blows with Mr Valentine. Mr Militch you then stabbed Mr Valentine in the back of his right hand and then stabbed him in his chest. The knife punctured his chest wall and his lung through to his right pulmonary vein. He was then lowered to the ground. He bled profusely from the chest wound and he bled to death quickly.

[8] None of you helped him. You were all focussed on leaving and not leaving any evidence behind. You Mr Zimmerman said that you had to grab the weapon because none of you wanted to leave evidence at the scene of the killing. You left the scene quickly. You took the white handled knife that had been used to stab Mr Valentine. Two other knives were left at the scene. On the way you threw the white handled knife out of the vehicle you were travelling in and that is the subject of the conspiracy to obstruct justice charge. Some of you showered and washed your clothes. All of you subsequently spoke to the police but initially at least the essential details of what happened were mostly inaccurate as you described.

[9] Mr Zimmerman, I have read your pre-sentence report. The Probation Officer notes at 31 years of age you have three children to a previous partner. What an extraordinary thing it is that a man who has three children is prepared to become involved in an event such as this. The Probation Officer accepts that you do have significant remorse for the offending.

[10] Mr Windley, the probation report relating to you I have also read. It says that you appear remorseful for your actions and that while you say that you did not directly stab Mr Valentine, you accept responsibility for your part.

[11] Mr Militch, I have read your probation report. You also have three children and you have a wife and I say again, what an extraordinary thing it is that a man with the responsibility of a wife and children would take knives to a confrontation on

what can only be described as a trivial event stoked by stupid and foolish rumour. You have something of a background of violent conduct and it said you displayed, however, a moderate degree of remorse. While you do not consider yourself to be a violent individual, your offending and your background says otherwise.

[12] The aggravating features in the Crown submissions include of course: (a) the fact that Mr Valentine died;

(b) the use of a knife;

(c) that you acted as a group;

(d) that the violence was pre-meditated;

(e) that the offending took place in Mr Valentine’s property; (f) your lack of assistance; and

(g) your attempt to hide your involvement afterwards.

[13] The Crown accept that you have entered pleas to the obstruction of justice charge and that you, Mr Militch, offered to plead guilty to manslaughter shortly before the trial. They say that you Mr Windley, and you Mr Zimmerman have a lesser involvement than Mr Militch in the offending.

[14] They say Mr Militch, your culpability is at the highest level because you armed yourself with the knives, knew that this was to a violent altercation and used both.

[15] Mr Zimmerman they stressed your involvement in the organisation of the crime and you Mr Windley, the Crown say, are the least culpable but you were part of the plan. You discussed taking weapons and you were aggressive at the scene.

[16] I turn to your counsel’s submissions. I take them into account, the written submissions and I take into account their oral submissions. Firstly, for you Mr Zimmerman, your counsel submitted that as far as your role is concerned, you accept you knew that Mr Militch had a knife and that knives were being taken. You became involved because of your relationship and your new partner but that once the group arrived at Mr Valentine’s house your responsibility was significantly reduced. You had conducted a reasonable conversation with Mr Valentine about the issues, you did not brandish or use any weapons and you tried to calm the dispute. You were not involved in any physical altercation and tried to stop the events. He accepts your involvement in taking the knife after the killing but this was not an elaborate attempt at deception, you reacted simply to the very immediate circumstances.

[17] Mr Windley your counsel stresses that while you may have been aggrieved that Ms Ham had taken possession of the hard drive and while you may have been abusive at the scene, you did not attempt to use any physical force. You may have shouted and yelled but the violence began when Mr Valentine physically intervened.

[18] You were keen then to end the confrontation because Mr Valentine was getting the better of you but you accepted you placed part in the death of Mr Valentine.

[19] Your counsel stresses the number of testimonials as to your personal circumstances as well as your commitment to change and your deep remorse.

[20] As far as you are concerned Mr Militch, your counsel submits that you were not involved in the original heated discussion although it is accepted that you did strike the deceased with the sharpening steel.

[21] You are remorseful and you have provided a letter illustrating that remorse. Counsel submits that you are now committed to change and committed to change in what has been in the past some violence and some violent conduct.

[22] Counsel submits that you should have deductions for your intimation of a earlier offer to plead guilty to manslaughter and for your remorse.

[23] I have read all of the victim impact reports and some have been read today and of course they have a profound effect on the sentencing today. They illustrate the horrendous affect that the death of Mr Valentine has had on his many friends and family. I want to acknowledge their presence here today and I want to acknowledge the deep hurt and anger they have with regard to the killing of Mr Valentine. They know of course that no sentence I can impose will bring him back. And they know that no sentence I can impose will compensate them for the enormous hurt and loss that they have had.

[24] There has been enough violence here and enough retribution. The victims will understand that I am constrained in the sentence that I must impose by the law and the sentence that I impose must be according to law.

[25] As I have previously said these events occurred over trivial matters. It justified no violence at all. People with even the smallest amount of sense would have resolved it without difficulty. As I have said before, two of the three of you are family men who have children to look after, yet that seemed to play no part in your thinking at all. You were intoxicated and that added no doubt to the bravado but is no excuse at all. The three of you invaded another person’s property and even if at some stage there may have been an invitation, you should never have been there. You were carrying weapons; you were spoiling for a fight and it was effectively three on to one. And Mr Valentine was stabbed and he is now dead and you three are responsible.

[26] There are a number of aggravating features to the killing: (a) there was pre-meditation;

(b) each of you knew weapons were being taken;

(c) the three of you were involved against one man; (d) you invaded his property;

(e) a knife was used to kill him; and

(f) you disposed of the weapon after the killing.

[27] These events did occur during the course of a physical confrontation between Mr Valentine and you, Mr Windley and then you, Mr Militch. But as I have said the reality is you were all on Mr Valentine’s property. He did not invite three of you armed with knives to come to his property. He was entitled to defend it and he was entitled to insist on you leaving. You had not been invited there in the sense that I have said and you were not welcome there.

[28] I deal with you each of you individually. Firstly you Mr Militch. I agree that you are most culpable for the reasons I have already given because you stabbed Mr Valentine directly causing his death. Having considered previous cases and relevant factors in R v Taueki,¹ I consider the proper starting point for you is

10 years’ imprisonment. I accept that you indicated a plea of guilty near trial and

there is a slight indication of remorse. But of course you have had the advantage of the benefit of accepting a plea of manslaughter. I deduct from your start sentence

20 months’ imprisonment. In my view, there was no other reason to increase or decrease the sentence.

[29] You are, therefore, sentenced to eight years and four months for manslaughter. One year concurrent for the other charge. A minimum period of imprisonment is appropriate. I set that at five years’ imprisonment.

[30] As far as you are concerned Mr Zimmerman, you have significant responsibility for beginning these events, planning them, gathering the people and taking them there. You were looking for a physical confrontation. You knew knives had been taken and you were prepared to invade Mr Valentine’s property. You were primarily responsible for the three of you being present at Mr Valentine’s that day.

[31] I accept you were not significantly involved at the scene but the events would simply not have occurred if not for your involvement. I consider a proper starting point for you is eight years’ imprisonment. I accept that you have remorse and you

_{pleaded guilty during trial. I deduct 12 months.}

¹ R v Taueki [2005] 3 NZLR 372.

[32] You are sentenced to seven years’ imprisonment with a minimum period of three years and six months and a concurrent sentence of 12 months’ imprisonment for the other offending.

[33] Mr Windley, I accept you are the least culpable. While I accept you were not particularly involved in the planning of the events, you were prepared to go along as part of a gang to confront Mr Valentine. You knew others were armed. When you got there you were mainly responsible for upping the level of aggravation. It was your abuse of Ms Ham that triggered much of these events. But I accept you did not plan the events.

[34] I consider a proper starting point for you is one of six years’ imprisonment. I accept that you are remorseful, you helped the police find the knife and you ultimately pleaded guilty. I deduct 12 months for these factors. That leaves a sentence of five years’ imprisonment. You will also serve a minimum period of imprisonment. It set that at two and a half years’ imprisonment. I impose a concurrent sentence of 12 months’ imprisonment for the other charge.

[35] I impose the minimum periods of imprisonment because I am satisfied release after one third would not adequately reflect the seriousness of the offending for the reasons I have given.

[36] Finally, I must give you the third strike warning which has not yet been given. Given your convictions for manslaughter, you are now subject to the three strikes law. I am going to give you a warning of the consequences of another serious violent conviction. You will be given written notice outlining the consequences.

[37] 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 prison sentence without parole or early release. If you are convicted of murder committed 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.

_{[38] Thank you. Stand down.}

Solicitors:

Ben Vanderkolk & Associates, Palmerston North

WinterWoods Lawyers, Palmerston North

S Hewson, Palmerston North

Steedman, Fergus, Principal, Palmerston North

Ronald Young J