R v Fawcett [2014] NZHC 881 (1 May 2014)

Last Updated: 15 May 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-009-005233 [2014] NZHC 881

THE QUEEN

v

_{MAUHA HUATAHI FAWCETT}

Hearing:	1 May 2014
Appearances:	P J Shamy and A Raj for Crown Defendant Appears in Person C M Ruane - Amicus
Judgment:	1 May 2014

_{JUDGMENT OF GENDALL J}

Note: This is a redacted version of the original judgment. Some details have been redacted.

[1] Mauha Fawcett, at trial the jury found you guilty of murdering Ms Ngatai Manning who is also known as Mellory Manning. You now appear for sentence.

[2] Today it falls to me to pass the only sentence that I can pass for murder, and that is one of life imprisonment. The only real issue I need to determine here is the length of the minimum term that you must serve before you are eligible to apply for parole.

[3] Before getting into the detail of my remarks can I please begin by acknowledging the presence of everybody here today. To the family and friends of

_{the victim in this case Ms Manning who was tragically taken from you at a young}

R v FAWCETT [2014] NZHC 881 [1 May 2014]

age, there is nothing I am able to do or say that can ever replace your loss. A dearly loved daughter, sister, friend, relative and partner has been taken from you. There is nothing I can say or do to change that but the sympathy of this Court is with you all.

Facts

[4] I turn to the facts of this case. It is unfortunately necessary during a sentencing process such as this for me to go again into the facts. I realise that this means that you members of Ms Manning’s wider family and her friends will be re- living not only the horror of the murder itself but also the trial. Unfortunately this is unavoidable.

[5] The facts that give rise to the charge here are in a way painfully simple. At about 10:40 p.m. on 18 December the victim Ms Manning was lured into a vehicle off Manchester Street, Christchurch, where she was working as a prostitute. It is said that you Mr Fawcett played a part first, in locating her on Manchester Street where you had a role taxing prostitutes for the Mongrel Mob and secondly, in passing to her a cell phone with a threatening message from a Mongrel Mob colleague, you being a prospect for the Mob.

[6] Ms Manning was then taken to the Mongrel Mob pad situated on Galbraith Avenue, Christchurch where she was sexually violated and possibly raped and then she was subjected to a prolonged, merciless and violent attack by more than one person which ultimately caused her death.

[7] Mr Fawcett, you have described in various statements that you made how Ms Manning was subjected to this ferocious attack by several patched Mongrel Mob members using a number of weapons including a metal pole with a hook (which was a purpose built weapon), a hammer, a tomahawk and a knife.

[8] This was an organised “hit”, with a plan made earlier that night at a meeting of the Aotearoa Chapter of the Christchurch Mongrel Mob, where you Mr Fawcett were present as a prospect. The members of the Mob at the meeting including yourself were assigned specific tasks to be carried out that night.

[9] By your own statements Mr Fawcett you were involved in the attack on

Ms Manning, including hitting her once with the pole [...]

[10] A high level of brutality was present in this attack on Ms Manning given its sustained nature. It was an attack by a number of men armed with dangerous weapons against a slightly built and defenceless woman. Ms Manning weighed only about 45 kilograms. We have heard today that Mr Ruane the Amicus has described this as a cowardly attack and killing.

[11] Mr Fawcett, in one of your interviews you describe the scene as a “blood bath”. The post mortem photographs demonstrate the brutality of the killing and the very high levels of force involved to provide the injuries sustained by Ms Manning. The pathologist’s report outlined that she had 66 different wounds and injuries to her body [...] These were generally in four categories each of which according to the pathologist could of themselves have caused death – first, blunt force head injuries; second, manual strangulation; third, three stab wounds to her chest; and fourth, [...]

[12] The evidence of the pathologist was that this was an extremely sustained and determined assault, that it had to take some time and had to take a certain amount of forethought as to what was going to happen next.

[13] In one of your interviews Mr Fawcett you stated that at one point Ms Manning was crawling along the floor when she was hit and that you and all the other participants stood around her body barking and sieg heiling. It is difficult to escape the conclusion that all of this demonstrated a high level of cruelty, depravity and callousness, and that this continued when Ms Manning’s half naked body was dumped in the nearby Avon River.

[14] In addition to your assaults on Ms Manning at the Mongrel Mob pad, a consistent theme in your own statements Mr Fawcett is that you also admitted involvement by being a lookout, listening on a police scanner, opening up the Galbraith Avenue pad, turning up a radio to block any noise from the assaults, assisting in the clean-up at the pad and again as a lookout on the disposal of

Ms Manning’s body into the river and then later returning to assist in cleaning the

vehicle used to carry her body from Galbraith Avenue to the Avon River.

Impact on Ms Manning’s friends and family

[15] I want to turn now to address the impact on Ms Manning’s friends and family of all of this. This is always a distressing component of a trial. The death of Ms Manning is a tragedy. An innocent life was taken suddenly, violently and needlessly. Ms Manning's parents, siblings, other relatives and friends have been left without a loved one.

[16] A number of victim impact statements are before the Court. These are from Ms Manning’s mother Sharon Davis and her partner John Channing, and Ms Manning’s partner Kent Gorrie and his sister Francis Gorrie. I have carefully read them all. Two of them have been read today. They have all been prepared with great thought and care. They make sad reading.

[17] One thing that comes through in the statements is the great loss that has occurred of a loved daughter, relative and friend. Without exception the statements speak from the heart at the loss that has been suffered as a result of the actions of you Mr Fawcett and others. They tell of a family that has been broken forever and also of the huge toll this has taken on all those associated with the family over an extended period. They speak too of a disbelief that there are people amongst us capable of what is described as such a macabre and evil deed.

[18] Mr Fawcett you have heard today the grief and anguish that Ms Manning’s family and friends share over her death at a relatively young age. It is fair to say that her life was taken gratuitously and in a situation where nothing of any consequence provoked the kind of response that you Mr Fawcett and your associates provided when you assaulted her. Nothing at all could justify the violence involved, let alone violence at the level that occurred here. It is for that reason that the terrible consequences of the crime of murder in our statute books is dealt with by providing that there is only one penalty, and that is the penalty of life imprisonment.

Your circumstances

[19] I turn now to consider your circumstances Mr Fawcett. You are now 26 years old. You were 21 at the time of Ms Manning’s murder. There is no doubt that you have had an unfortunate background, having been brought up in a gang environment and introduced to drug use at a very early age. Over the past eight years you have amassed 24 dishonesty related convictions, seven driving convictions, five drug related convictions, five failures to answer District Court bail, four breaches of community based sentences and two convictions for violence, 48 convictions in all which have meant you have spent a significant part of the last eight years in prison.

[20] The probation officer has recorded that you refused to participate in the pre- sentence interview process but that from previous records and reports it is clear you have an unenviable offending history and many issues or problems facing you.

[21] You are of Te Arawa/Tuwharetoa descent. You were raised predominantly by your father, members of whose family were involved with the Mongrel Mob. It appears your childhood was unstable and dysfunctional. Following your father’s death in 2000 Mr Fawcett you lived with various family members and then in several Youth Justice family homes. Later you began living a transient lifestyle and getting into trouble with the law, such that the probation officer states it is not surprising you find yourself in the situation you are in today based on this background.

[22] Mr Fawcett you it seems have never held any form of productive employment. You have said that you commenced cannabis use aged about eight years and methamphetamine use since age 14.

[23] The pre-sentence report Mr Fawcett assesses your risk of harm based on this offence as high and, due to your offending history, your risk of re-offending is also seen as high.

[24] From the last pre-sentence report completed for you Mr Fawcett in 2009, the probation officer indicates you show harmful patterns of both alcohol and drug abuse together with an addiction to gambling. It is said you have an entrenched criminally

supportive lifestyle and the only way for this to be addressed would be via psychological counselling if you are appropriately motivated.

Sentence

[25] I now turn to the sentence I am required to impose. As I said, for murder I must impose a life sentence unless that sentence would be manifestly unjust. Of course there is no issue here about such a sentence being manifestly unjust and no suggestion has been made to me that there is anything in this case to displace the presumption of life imprisonment on the count of murder.

Minimum period of imprisonment

[26] Under s 103(2) Sentencing Act 2002 Mr Fawcett you must serve at least

10 years as a minimum period of imprisonment before becoming eligible for parole. And, where circumstances of the offending are sufficiently serious, a minimum of more than 10 years can be imposed.

[27] However, if in a case such as the present one, the circumstances of the murder fall within those specified in s 104 Sentencing Act 2002 the Court must impose a minimum period of imprisonment of least 17 years. This is a mandatory requirement although there is a discretion to impose a lesser term limited to cases where it would be manifestly unjust to impose a sentence of 17 years. The purpose of this requirement introduced by Parliament into our law in 2002 is to ensure a very

substantial minimum term of imprisonment for the most serious murders.¹

[28] People sometimes confuse the minimum term of imprisonment that the Court is required to impose with a sentence of life imprisonment. The minimum term of imprisonment is not the sentence that a person must serve. It is the term that he or she must wait before he or she is entitled to apply for parole. A person who is sentenced to life imprisonment is subject to recall to prison for the rest of their life if they offend again after being released on parole. It is a matter entirely for the Parole Board to determine when a person should be released on parole from a sentence of life imprisonment.

[29] Turning now to the relevant part of s 104 Sentencing Act 2002, this provides that, unless it would be manifestly unjust to do so, a minimum non-parole period of

17 years must be imposed “if the murder involved calculated or lengthy planning” or “the murder was committed in the course of another serious offence” or if “the murder was committed with a high level of brutality, cruelty, depravity or callousness”.

[30] In considering the possibility of a minimum term of imprisonment here I adopt the approach outlined in 2005 by the Court of Appeal in Williams.² This approach requires me to consider first your degree of culpability in this case Mr Fawcett in relation to that found in the “standard” range of murders having regard to aggravating and mitigating factors. This is to bear in mind the policy behind s 104 that in general the presence of any of the specified circumstances will justify a minimum non-parole period of at least 17 years.

[31] In this case the Crown submits that the circumstances here clearly fall within s 104(1)(e) Sentencing Act 2002 at least, being a murder that was committed with a high level of brutality, cruelty, depravity or callousness and thus this justifies a minimum period of imprisonment of 17 years.

[32] Particular aspects that the Crown relies upon here are:

(a) First, the use of weapons which were described at various points as a pole with a hook, the hammer, the tomahawk and the knife.

(b) Secondly, the post mortem photographs clearly demonstrate the brutality of the killing especially the many wounds sustained by Ms Manning and the very high level of force which was required to inflict these.

(c) Thirdly, the high level of brutality was clearly present in this case given the sustained nature of the attack by a number of men, including you Mr Fawcett, armed with weapons against Ms Manning a slightly

built woman weighing, again as I have said, no more than

45 kilograms. (d) [...]

(e) Fifthly, the evidence from your statements Mr Fawcett that at one point Ms Manning was crawling on the floor in an attempt to escape whilst she was being violently hit. At this point or thereafter you and the other patched Mongrel Mob members, as I have said, stood around her body barking and sieg heiling.

(f) And sixthly, all the above actions including Ms Manning’s [...] injuries inflicted by you Mr Fawcett and her other attackers demonstrate according to the Crown a high level of cruelty, depravity and callousness added to by the dumping of her half naked body into the Avon River.

Amicus comments

[33] Mr Fawcett today you have chosen to make no submissions to me on this sentencing process but I turn now to the submissions I have received from Mr Ruane the Amicus appointed by the Court to assist. In these Mr Ruane suggests that I should be wary about attributing any greater involvement to you Mr Fawcett here than as a party on the periphery of the action which caused Ms Manning’s death. He notes that the real issue must be whether your involvement Mr Fawcett as determined by the Court justifies a minimum period of imprisonment of at least

17 years under s 104 as the Crown seeks. Mr Ruane accepts that there was no doubt an element of planning in Ms Manning’s death, and he acknowledges the murder was committed during the course of either a rape or at least a sexual violation and further that the murder was committed with a high level of brutality, cruelty, depravity or callousness. All this clearly engages s 104 Sentencing Act but Mr Ruane suggests that the Court here might well find that you Mr Fawcett, in being purely a secondary party in the murder, might be found to have played a relatively minor role.

[34] On this basis, Mr Ruane questions whether a minimum non-parole period of substantially more than only 10 years might be justified, or indeed whether in fact as a secondary offender you Mr Fawcett may not fall within the ambit of s 104 with the minimum 17 year period imposed.

[35] On all of this, however, I am satisfied that you Mr Fawcett took a significant role in Ms Manning’s actual killing and must be seen to have taken some active role in one or more of the s 104 aggravating features.

[36] This was an organised hit on Ms Manning, and you Mr Fawcett with your Mongrel Mob involvement, participated in the planning and carrying out of the hit. This case is one like those of R v Chow,³ R v Moore,⁴ and R v Marteley⁵ that can only be described as a gangland execution or hit and I must consider your involvement Mr Fawcett with this in mind. But the Crown did present its case on the basis and the jury accepted that you Mr Fawcett were not the mastermind and although you

were intimately involved in all aspects of the hit on Ms Manning, as a gang prospect you were really a secondary party to her murder. That you were on bail at the time on a relatively minor charge may not be seen as the most significant matter here but even though your involvement in this gang hit murder primarily may have been as a result of your connection with the Mongrel Mob, this, the nature of the murder, and your previous convictions and offending history, can only be considered as aggravating features. To my mind even if there may have been a possible element of coercion on you here Mr Fawcett from patched Mob members there is a significant level of culpability in your offending here.

[37] Regarding Mr Ruane’s suggestion that this Court might consider the minimum non-parole period of 17 years provided for in s 104 Sentencing Act 2002 should only apply to primary offenders and not secondary parties (as it is suggested you are here Mr Fawcett), a number of decisions including Rapira⁶ and Lisiate,⁷

_{Pandey-Johnson}⁸ _{and Cui, Li and Wang}⁹ _{as I see it support the opposite view.}

³ _{R v Chow HC Auckland CRI-2006-032-356, 15 February 2007.}

⁴ _{R v Moore HC Wellington CRI-2006-085-4361, 11 April 2008.}

⁵ _{R v Marteley HC Hamilton CRI-2009-019-9786, 5 November 2010.}

⁶ _{R v Rapira [2003] 3 NZLR 794.}

⁷ _{R v Lisiate HC Auckland CRI-2009-044-2878, 16 December 2011.}

⁸ Pandey-Johnson v R [2012] NZCA 595.

Rapira was a murder case involving secondary parties and although it did not directly deal with s 104 all those participating in the murder of this pizza hut delivery driver including those who were merely secondary parties were convicted and received similar sentences.

[38] In Lisiate two principal offenders and one secondary offender were found guilty of killing a rival gang member in prison following a plan devised by the three to kill the deceased. Both the principal offenders and the secondary party who was a party to the plan developed to kill the deceased but did not carry out the actual attack all received minimum non-parole periods of either 17 or 18 years with s 104 accepted as applying. Appeals in Lisiate to both the Court of Appeal and the Supreme Court were dismissed.

[39] With respect to your case here Mr Fawcett I cannot agree with Mr Ruane’s suggestion that s 104 of the Sentencing Act should not apply to you as a secondary party to Ms Manning’s murder.

[40] As I see the position there could hardly be a clearer case of a murder committed with a high level of brutality, cruelty, depravity and callousness than the case which is before me. And in addition in my view there are no mitigating features of your offending here Mr Fawcett, nor have you indicated any insight into that offending or remorse. It cannot be questioned in my view that s 104(1)(e) Sentencing Act 2002 at least applies here and the minimum term I am to impose therefore must be 17 years at least.

[41] Given that conclusion I do not need to give detailed consideration as to whether the other provisions of s 104(1) Sentencing Act 2002 which the Crown suggests also apply here first, of a murder involving calculated or lengthy planning or secondly, the commission of the murder in the course of another serious offence might apply. There are strong arguments however that these provisions would also apply in this case as I see it. I accept they do apply here too. And it might be noted

_{that in Baker}¹⁰ _{the Court of Appeal held that the fact that there are three distinct}

⁹ _{R v Cui, Li and Wang HC Auckland CRI-2006-004-18412, 6 December 2007.}

¹⁰ R v Baker [2007] NZCA 277 at [23].

respects in which s 104 was engaged must indicate that a higher minimum imprisonment starting point than 17 years is required. In my view that is clearly the position here.

[42] As to the second enquiry to be made under s 104 Sentencing Act 2002 I do not consider that there are any special or mitigating circumstances here to indicate that the statutory minimum 17 year sentence would be manifestly unjust in this case. The features of this murder which I have outlined already are sufficiently serious to justify a minimum 17 year term of imprisonment.

[43] And, this brings me to the final question as to whether that minimum period of imprisonment should be higher than 17 years. The Crown initially submitted here that given the gang involvement, the calculated planning, the sexual violations and the high level of brutality, cruelty, depravity and callousness, life imprisonment with a starting point of at least 23 years minimum period of imprisonment would be appropriate here.

[44] Turning now to consider a starting point for your sentence here Mr Fawcett, in terms of the decision in Williams I am satisfied that this is a serious case where a significantly higher sentence than the 17 year starting point is justified given the three s 104 features present here and the other aggravating factors which are present.

[45] It is always difficult to compare sentencing cases given that each case has certain unique features.

[46] But, on these aspects the Crown referred to a range of decisions. The first is a decision in Weatherston¹¹ where the first offender defendant was convicted of murder having stabbed his victim some 216 times and mutilated her body. A starting point of 19 years as a minimum period of imprisonment was deemed to be appropriate with a discount of one year allowed for mitigating factors. A minimum period of imprisonment of 18 years was imposed for that murder. Next, in Pandey-

Johnson the defendant who was a gang leader together with two other co-offenders

_{was convicted of murdering a drug associate and a minimum period of 18 years was}

¹¹ R v Weatherston HC Christchurch CRI-2008-012-000137, 15 September 2009.

imposed both on the person who carried out the attack and also on the defendant who although he was not present when the killing occurred was the instigator.

[47] Next, in R v Te Awa¹² a minimum period of 20 years was adopted increased by one year to take into account a defendant’s previous convictions in a situation where the victim was kidnapped, taken to a remote location and killed by the defendant in an arranged murder.

[48] And lastly, in R v Reid¹³ the defendant raped and murdered a profoundly deaf woman and nine days later raped and attempted to murder another woman. There on the murder charge a minimum period of 26 years was imposed along with preventive detention for the rape. This was reduced on appeal by the Court of Appeal to 23 years.

[49] In the present case as I have noted the Crown seeks a non-parole period of

23 years if Mr Fawcett is seen as a primary party to Ms Manning’s murder or alternatively a non-parole period in excess of 20 years on the basis of an allowed discount if he is seen as a secondary party.

[50] On this aspect throughout this case the Crown itself has suggested that Mr Fawcett was only a secondary party in Ms Manning’s murder. On this basis, I adopt a starting point bearing in mind the decisions in Pandey-Johnson which I consider not dissimilar at 18 years minimum period of imprisonment, Te Awa at 20 years period of imprisonment, and the secondary party in Lisiate at 18 years minimum period of imprisonment and Cui and Li at 18 ½ years minimum period of imprisonment as all being in the general range. I adopt therefore a starting point of

19 years, increased by Mr Fawcett’s previous convictions and other aggravating

features of one year to a period of 20 years.

[51] Here, additional aggravating features must include in my view the planned and organised gang hit on Ms Manning, the horrific nature and callousness of her

_{attack and murder, the sexual dimension, the vulnerability of the victim Ms Manning}

¹² _{R v Te Awa [2014] NZHC 65.}

¹³ R v Reid [2009] NZCA 281.

and the lack of any mercy shown to her, and also your past record Mr Fawcett of previous convictions which I have said total some 48 convictions over a relatively short period of time.

[52] So far as mitigating factors are concerned, the Crown submits that none apply here. I agree. You have shown no remorse at all Mr Fawcett, and although you were a reasonably young man at only 21 at the time of the murder, you had a lengthy criminal history and also freely chose to strive to become a patched member of the Mob. And clearly there can be no suggestion here of any discount for prior good conduct.

[53] In addition in this case given your active participation Mr Fawcett at all stages of the Mongrel Mob plan and your part in carrying this out, in my view there should not be a major difference in the sentence I am to impose upon you as a secondary party that might otherwise apply if you were a principal offender. It is accepted you were not the mastermind and were not a patched member of the Mongrel Mob in this case at the time but little distinction should be drawn on this basis. It is even suggested that Mr Fawcett you were to undertake the hit yourself so that you could earn your patch. I accept therefore that you were simply not a person who was just on the periphery.

[54] In weighing up all these relevant factors here in considering the need to hold you Mr Fawcett accountable and responsible for the harm done to Ms Manning and the community, and to provide proper denunciation and deterrence for what has occurred here my view the appropriate minimum period of imprisonment in this case should be 20 years. This is an appropriate uplift from the minimum non-parole period under s 104 of 17 years. It takes into account particularly the aggravating features present here, the absence of any mitigating features and it reflects the totality of the offending which has occurred.

[55] Now Mr Fawcett would you please stand and I will impose sentence.

Sentence imposed

[56] For the murder of Ms Mellory Manning, Mr Fawcett you are sentenced to life imprisonment. You are to serve a minimum period of 20 years imprisonment.

[57] Stand down please.

[58] Just before I retire again I remind members of the media and all present of the lengthy and detailed suppression orders which were in place earlier in this matter and which continue.

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

Gendall J

Solicitors:

Raymond Donnelly & Co, Christchurch

Craig Ruane, Christchurch

Copy to Defendant