R v Akuhata [2015] NZHC 1098 (20 May 2015)

Last Updated: 19 June 2015

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-088-2596 [2015] NZHC 1098

THE QUEEN

v

_{JIMMY PETER AKUHATA}

Hearing:	20 May 2015
Appearances:	M B Smith and R B Annandale for the Crown C S Cull and A M Dooney for the Defendant
Sentence:	20 May 2015

_{SENTENCING NOTES OF ELLIS J}

Counsel/Solicitors:

M B Smith, Crown Solicitor, Whangarei

C S Cull, Barrister, Kerikeri

R v AKUHATA [2015] NZHC 1098 [20 May 2015]

[1] Mr Akuhata there are lot of things I have to say before I sentence you so I am going to let you sit down until the end when I will get you to stand up. But I want you to listen very carefully to what I am going to say to you.

[2] Mr Akuhata, you appear for sentencing today after recently pleading guilty to murdering Ashlee Edwards on 27 July 2012.

[3] The first thing I need to do is to give you a first strike warning, which is as follows.

[4] Given your conviction for murder you are now subject to the three strikes law. I am 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.

[5] The warning is that 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 then you will serve that sentence without parole or early release. And 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.

[6] Now, before sentencing you I am going to try and explain to you and to the other people in Court today, the way in which the law says I must arrive at your sentence.

[7] First, when a person is convicted of murder, New Zealand law requires the Court to impose a sentence of life imprisonment, unless such a sentence would be plainly unjust.¹ In your case, Mr Akuhata, both the Crown lawyer Mr Smith and your lawyer Ms Cull have agreed that a life sentence would not be unjust. I agree with that. So both the starting point and the end point is that you will be sentenced

_{to life imprisonment.}

¹ Sentencing Act 2002, s 102.

[8] But although you will be sentenced to life imprisonment for Ashlee’s murder, I must also decide on the minimum period of time that you must spend in prison. This is because even a person who is sentenced to life is able, eventually, to apply for parole. So the minimum period is the shortest time that you will have to spend in jail before you can ask for parole. But just because you can ask for parole after a certain length of time does not mean you will automatically be released then. That is because the Parole Board is still required to consider the safety of the general public and to decide whether releasing you would involve an unacceptable risk to the community.

[9] And even if you are later released on parole, you will remain subject to the sentence of life imprisonment, for the rest of your life. That means that even after you have been given parole you can be recalled to prison.

[10] Usually in murder cases the minimum non-parole period is required to be

10 years, or such longer period as the Court may decide.² But the law also provides that for some types of murder the minimum period must be at least 17 years.³ That longer period applies in the most serious cases. The Court of Appeal has said that those cases (that is those cases where a 17 year minimum sentence is effectively mandatory) will be very much the exception and not the norm.⁴

[11] Parliament has also set out some particular matters to help the Courts decide what are the most serious cases, those cases that require a minimum period of

17 years or more. In your case, Mr Smith has suggested that one of those at least might apply in your case and I will talk about that later. But, in any event, he says that I must sentence you to life imprisonment with a minimum non parole period of at least 17 years in prison.

[12] Your lawyer, Ms Cull disagrees. She says that an MPI of somewhat above the standard 10 year period should apply.

² _{Section 103(2).}

³ _{Section 104.}

⁴ In R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA) at [60] the Court said that the central purpose of s 104

is to provide lengthy sentences for the “worst murderers”.

[13] So that is what I have to decide today. I have to decide what your minimum non-parole period should be. That will largely depend on the facts of the matter; how it was, and in what circumstances, you came to murder Ashlee Edwards. So I need to talk about those facts first.

[14] But before I do that I want to say something to Ashlee’s friends and family who are here today. What has happened to Ashlee and the effect that it has had on your lives is not something anybody should have to endure. For those of us who have not been through it, the pain and loss is unimaginable. But as you may gather from what I have just explained, part of what I am required to do today is to compare what happened to Ashlee with some other murders and, perhaps, to suggest that hers is not as “bad” as some of those. As Mr Smith said today that is a very distasteful thing to have to do. So when I do it I want you to know that it does not mean that I do not recognise or understand how dreadful and cruel and violent and meaningless Ashlee’s death was. It should never, ever, have happened. But unfortunately making comparisons with other awful cases is what I am required to do by the law.

[15] I am now going to talk about the facts of this case.

Facts

[16] Mr Akuhata, Ashlee Edwards was 21 years old when you killed her. You were 29, although you are now 32. You and Ashlee were in an on and off relationship for about six years. As I understand it, you are the father of her two children who were only two and four months old at the time their mother was killed.

[17] Your relationship with Ashlee was stormy. On 5 February 2010 she said that you had physically abused her and she got a temporary protection order against you to try and keep her and your first daughter safe. In May 2012, shortly before she died, Ashlee got this order changed so that it protected her second daughter as well.

[18] On 26 July 2012, you had two tickets for an opening night party at a night club in Whangarei. Even though you and Ashlee had been separated for a while, you asked her to go with you and it seems she agreed.

[19] During the party you saw that Ashlee was sending text messages to a friend. You got angry with her for texting and tried to grab her phone. Ashlee was seen telling you that you were hurting her.

[20] You left the party early the following morning. You were walking along together and arrived at the bridge on Lower Tawera Road. The two of you were arguing. You lifted or pushed her over the railing and she fell into the stream below. You went down the bank and into the stream. There was a further struggle in the water. You grabbed her hair and held her head under the water until “the bubbles stopped”.

[21] When you got home you told people that Ashlee was dead. Then you went with some others to your mother’s address where you asked your brother to help you find her. Your brother called the police, who found Ashlee’s body. The doctor who examined her body later that day confirmed that the cause of Ashlee’s death was drowning. Other visible injuries included minor grazes and bruising to her neck, head, elbows, forearm and shins. You were arrested soon afterwards.

[22] At this point I also need to record that following your arrest you were held in prison to await trial. But while you were there in November of 2012, you were assaulted and you suffered a significant brain injury. Since then you have had problems with information processing, executive functioning and short-term memory.

[23] The brain injury you received led to considerable delays because it was unclear whether you were fit to plead and to stand trial. It seems that your injury has however improved a little over time. And in June last year a Judge found that while you were still mentally impaired you were nonetheless fit to stand trial.⁵ That decision was upheld by the Court of Appeal in December 2014.⁶

[24] You pleaded guilty on 26 March 2015 just a few weeks before your trial was due to start.

⁵ _{R v JPA [2014] NZHC 1534 at [25]-[26].}

⁶ JA (CA402/2014) v R [2014] NZCA 590.

Victim Impact Statements

[25] I have read and heard the powerful statements made by Ashlee’s mother, Karen, and grandmother, Irene, this afternoon. I hope that you have listened to them too and that you understand what a truly dreadful thing it is that you have done and how far-reaching the emotional and financial consequences have been for everyone in Ashlee’s life. As Mr Smith said their pain has not lessened in the three years since Ashlee’s death. She was obviously an adored daughter, grand-daughter and great grand-daughter. She was full of laughter, fun and life. She was the much loved and much needed mother of two little girls. But she made a terrible choice when she decided to be with you. My sense is that perhaps she thought she could help you but she could not. And then she got stuck in that awful cycle that so many abused women find themselves in; she tried to get out, she tried to escape, she obtained a protection order. But in the end, on 27 July 2012, you simply chose to take away her life by a brutal and callous act. And when you did that, you not only killed Ashlee and deprived her of her future but you took away the joy and emotional and financial wellbeing of all those many people who cared for her and needed her as well.

Personal circumstances

[26] In terms of your own personal circumstances you have a history of relatively minor offending and, prior to now, have not been sentenced to a term of imprisonment. Most of your earlier offending was not violent but you do have four convictions for male assaults female, one for assault with an instrument and two convictions for fighting in a public place. Significantly, three of the male assaults female charges involved Ashlee.

[27] As well, in March 2012 you were convicted of breaching the protection order against Ms Edwards and sentenced to three months’ home detention. You were still subject to post-detention conditions when you killed Ashlee.

[28] You have always had learning difficulties and, as I understand it, can barely read and write. This has meant that you have only ever been able to get jobs as a labourer. In the time just before Ashlee’s death you were receiving a sickness

benefit. And all of these difficulties have, of course, been increased by your recent head injury.

[29] The pre-sentence report writer says that you accept that you killed Ashlee but you still seem somehow to blame her for what happened, as you did in relation to previous domestic incidents. You said that what you did on 27 July 2012 was not planned. You say you are sorry for Ashlee’s family, for the loss you have caused them and also because they have had to wait a long time for today to come. As I have said, the delays in getting here were due, at least in part, to the head injury you suffered and the legal and medical consequences of that.

[30] You acknowledge that you have a problem with alcohol and drugs and say that you want to change your life, but I agree with the report writer that that will not be possible unless and until you can accept that what you did to Ashlee was not in any way her fault. No one ever deserves to have done to them what you did to her, least of all a loving, kind, 21 year old woman like Ashlee. The reality is that you killed her for no reason at all, because you could. Only you are responsible for that, Mr Akuhata.

[31] Lastly the report writer says that you have a clear problem with violence, that you presently have a high likelihood of re-offending and pose a high risk of harm to others. It is impossible to argue with that assessment at this stage.

Discussion

[32] Mr Smith has suggested that Ashlee’s particular vulnerability could mean that

Parliament requires that I impose a minimum period of imprisonment of at least

17 years. But he said that even if I do not agree with him about that there are other things that mean I should impose a similar minimum period. He talked about the fact that the murder took place in a domestic relationship context, that there was a breach of trust and that you were also in breach of the protection order. He said that what you did that night meant that you very clearly must have intended to kill Ashlee.

[33] I agree with Ms Cull however that this is not a case where an MPI of 17 years automatically applies. While Mr Smith is right that Ashlee was vulnerable – it was late at night, she was alone with you and you were much bigger and stronger than she was – other cases make it clear that something more than that is required, such as the victim being a child or an elderly person.⁷ And although the way in which you killed Ashlee was certainly brutal and cruel and callous, almost all murders share those features.⁸ I do not think the brutality and callousness was at a sufficiently high level to engage the mandatory 17 year MPI either. As I have come to understand from doing this job for a while now there are, unbelievably, even worse things that can be done to people than what you did here, when you killed Ashlee.

[34] I have also considered other cases that might be said to be similar to yours, some of which involve murder by drowning, although comparisons of that sort are never easy.⁹

[35] So, as I have said, I do not think yours is a case where a 17 year MPI automatically applies. But that does not mean that this is a standard 10 year case either. In your case, I take particular account of your previous convictions for violence towards Ashlee Edwards and your previous breaches of the protection order.

[36] As I discussed with Mr Smith earlier today I also accept however that you were not strictly in breach of a protection order on the night in question because Ms Edwards agreed to go with you to that party.

[37] There is also the fact that you were still subject to post release conditions in relation to one of your convictions for previous breaches at the time you killed.

⁷ R v Williams, above n 4, at [89]; Filihia v R [2014] NZCA 401, R v Little HC Nelson CRI-2006-

012-2095, 16 March 2007; R v McLaughlin [2013] NZHC 2625; R v Cameron HC Christchurch

CRI-2008-009-6389, 24 August 2009; Churchward v R [2011] NZCA 531, (2011) 25 CRNZ

_{446; R v Malik [2015] NZHC 466 at [42].}

⁸ See R v Christison [2013] NZHC 2813 at [37].

9. R v Shepherd HC Auckland CRI-2004-092-013121, 2 November 2006; R v Little, above n 7, (upheld in R v Little [2007] NZCA 491); R v Kriel HC Whangarei CRI-2008-027-2728,

23 March 2010.

[38] I also take account of Ashlee’s vulnerability, given that she was as I have

said, alone with you outside in the early hours of the morning.

[39] I also take account of the brutality and callousness of your deliberate decision to climb down that bank into the water after you had thrown her from the bridge and then to drown her.

[40] In the end, after taking into account these matters together with the need to hold you accountable, and what I perceive to be a particular need to denounce and deter family violence, breaches of protection orders, and violence against women, and also to protect the community from you, I consider that the appropriate MPI is indeed one of 17 years.

[41] Having got to that point I need to decide whether and how to reduce that minimum term for other reasons that are personal to you, namely your guilty plea. I accept that in the unusual circumstances of your case you cannot fairly be said to be wholly responsible for the late stage at which it was made. But the courts have also said that the discount for a guilty plea to murder is often less than in ordinary cases.¹⁰

Here, I consider that a reduction of no more than two years can be justified.

[42] So Mr Akuhata, if you can stand up now. For the murder of Ashlee Louise Anne Edwards I sentence you to life imprisonment. You will not be entitled to apply for parole until you have served 15 years in prison.

_{[43] Stand down.}

_{Rebecca Ellis J}

¹⁰ R v Williams, above n 4, at [73].