R v Blake [2015] NZHC 1714 (24 July 2015)

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R v Blake [2015] NZHC 1714 (24 July 2015)

Last Updated: 24 July 2015

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2015-043-170 [2015] NZHC 1714

THE QUEEN

v

_{DAVID BLAKE}

Hearing:	24 July 2015
Counsel:	C E Clarke and A W M Britton for Crown P M Keegan and J M Woodcock for Defendant
Judgment:	24 July 2015

_{SENTENCING NOTES OF ELLIS J}

These are the sentencing remarks I intended to deliver in Court today. But the advice received from Corrections and Police shortly before the hearing was due to commence was that Mr Blake’s state was such that it was unlikely that I would be able to do so without serious incident. In particular, there were fears of violence against both those guarding him and members of his family. The advice was that, for the same reason, it would be most unwise to require Mr Blake to be in Court for the reading of victim impact statements. Mr Keegan confirmed the advice received.

Accordingly the Court heard brief submissions from counsel in Mr Blake’s presence and then two victim impacts statements were read aloud in his absence. I had, of course, read all the statements. Mr Blake was then returned to Court and was

_{sentenced in accordance with the final paragraph of these notes.}

R v BLAKE [2015] NZHC 1714 [24 July 2015]

I explained the process that I proposed to follow to the media and to the members of the public before the hearing began.

It is nonetheless important that there be a public record of the reasons for the sentence I imposed. Those reasons may be discerned from what follows.

[1] Mr Blake you are for sentence today for murdering your mother, Gwendoline Blake, on 30 January this year. You pleaded guilty on 20 April 2015.

[2] The sentence for murder, unless it would be manifestly unjust, is life imprisonment. In your case there is no suggestion that a sentence of life imprisonment would be unjust so that is the sentence that I will be imposing on you today. But the question I must decide, and to which counsel’s submissions this morning have been directed, is what minimum period of imprisonment should be imposed as a condition of that sentence. The minimum term of imprisonment or MPI is the term that you must serve before you can even be considered for parole. It does not fix the term of your sentence which, I emphasise, will be one of life imprisonment.

[3] The minimum period of imprisonment I impose depends in large part upon the facts of the matter and so I need to summarise those first.

[4] I begin by noting that you say you have very little recall of what actually happened on 30 January and there has not been a trial so I have not heard any evidence. I base what I am about to say on what is contained in the Police Summary of Facts, which is based on the scientific and pathological evidence obtained by the Police when investigating Gwendoline’s death. Notwithstanding the expertise of those involved there remains some doubt about the exact sequence of events and it seems clear that that doubt is not capable of scientific resolution. To the extent that any of the areas of uncertainty are relevant to your sentence, therefore, I propose to take the version of events that is most favourable to you.

[5] Beyond the point that I have just mentioned, Mr Keegan has advised that there is no relevant dispute about what is contained in the Summary of Facts.

Facts

[6] Prior to your mother’s death you had been living in a caravan at the back of her property in Stratford.

[7] On the afternoon of 30 January you had visited friends nearby and were drinking with them. At some point in the evening you returned home and went inside your mother’s house. You argued with her. It appears you ripped the phone and the power cable from the wall.

[8] You remember backhanding your mother across the mouth which you said you did because you wanted her to shut up and listen to you. But then you hit her forcefully around the face and head again at least three times, on one occasion using some kind of blunt object which left a distinct patterned impression on her forehead. Her nose was broken and extensive bruising was found on her forehead, and on both sides and the top of her head. Her arms and hands were bruised as well.

[9] It seems that one or more of the blows to your mother’s head caused her to fall to the floor where she lay on her back. You used a knife that you had taken from the kitchen and stabbed your mother at the base of her throat. You stabbed her right eye, severing the optic nerve, and stabbed her left eye as well. The Police pathologist has said, however, that by themselves none of these stab wounds were immediately life-threatening.

[10] As I have already said, where there is uncertainty about the precise sequence of the relevant events I proceed today on the basis that is most favourable to you. I think the most important example of this relates to the question of whether or not your mother was already unconscious, and possibly even dead, when you stabbed her eyes and neck. I am sure you will understand the significance of this, and the assumption that I am making today is that she was. That said, however, I suspect that the truth of the matter is that in the heat of those awful moments when you stabbed her you neither knew nor cared whether she was still alive.

[11] In any event, at some point while your mother was on the ground she vomited. Because of her head injuries and diminished consciousness, her gag reflex did not kick in. And because she was lying on her back, she inhaled her own vomit, which blocked her airway so that she could not breathe. It is agreed that this was the cause of your mother’s death.

[12] Afterwards you went to your neighbours’ house where you said to them “I think I’ve fucked up. I think I’ve killed my Mum.” You are also reported as telling your neighbours that you had started digging a hole, and a freshly dug shallow hole was later found by your caravan. You told one of them not to say anything but then you asked another to come with you to check on your mother. That neighbour went to her address and then called the Police, at about 9.50 pm.

[13] When the Police arrived you were in your caravan. You said to them that “My dad died, my missus left me, my mum was blackmailing me, then I killed her. I’m sorry I did that.” But later, during an interview after your arrest you told Police that your mother deserved everything she got and that it had felt really good when you hit her. You said you remembered getting really angry and that you had been really angry for weeks.

[14] So those are the facts. The facts about how you killed your mother. Now I need to say something about you personally and also about what effect your actions have had on your family.

Pre-sentence report

[15] I have read the pre-sentence report prepared by the probation service and the report of the psychiatrist who spoke to you in prison, at the request of Mr Keegan.

[16] You are 47 years old. Your family came to New Zealand from England when you were a child but you have never really felt at home here. At the time you killed your mother you were not working but you have previously had jobs as a truck driver, in sawmilling and in the building industry although you do not tend to stay in any one job for long. You deny you have problems with drugs or alcohol although there are grounds for suspecting that alcohol may not be an entirely benign presence in your life. The psychiatrist says that its disinhibiting effect was a contributing factor to the events of 30 January which, doubtless, it was.

[17] Things that you told the psychiatrist suggest that, as a child, your family life was not happy, although this was not really as a result of any actions on the part of either of your parents. You say you have a long history of low mood and this got

worse after your father died. You describe yourself as a loner and prefer animals to people.

[18] You have never married but have two adult children with whom you have had no contact for several years.

[19] You described your relationship with your mother in the pre-sentence report as a good one and said that in the past you had only insignificant arguments with her. But the psychiatrist notes that there were longstanding grievances and tensions between you; you found her controlling and demanding and, it seems, you blamed her for the family’s move to New Zealand and your subsequent unhappiness.

[20] The pre-sentence report writer says that at the interview you appeared upset and remorseful about what you did to your mother and accepted that you had to take responsibility for it. The psychiatrist says that you find it very difficult and distressing to think about what you did and you accept that you had no reason at all to act in that way.

[21] Although you have four previous convictions for violent offending they involved nothing even close to the magnitude of what you did on 30 January 2014. There is no history of violence towards your mother previously.

Victim Impact

[22] I have listened this morning to members of your family about the effect that your actions have had on them and I have read the written statements of others. Your brother, your sister, your nephew, your nieces and your son and daughter. In the end, though, as your sister Sheila has written, there are no words adequately to describe the harm and loss you have caused them as individuals and as a family. And of course the greatest harm of all is what you did to your mother, Gwen. I have a strong sense of her from the statements I have heard and read as a hugely loved and loving member of your family and a much valued and valuable member of the wider Taranaki community. She was full of joy and happiness, fun and life, with many years yet ahead of her. Your senseless and inexplicable actions have taken all that away and nothing I can do or say today can give it back or make it better.

Minimum Term

[23] I turn now specifically to the issue of the appropriate minimum term. [24] I am required by the Sentencing Act to impose a minimum term that:¹

(a) Holds you accountable for the harm done to the victim and the

community by your offending; (b) Denounces your conduct;

(c) Deters you and others from engaging in conduct like that in the future;

and

(d) Protects the community from you.

[25] Ms Clarke says that your mother’s murder was committed with a high level of brutality, cruelty, depravity or callousness and that s 104 of the Sentencing Act means that an MPI of at least 17 years is warranted. But Mr Keegan says that this is not a s 104 case. He accepts that there is no argument to be made in favour of an MPI of less than 10 years but says that an MPI of 13 to 14 years (after any discount for guilty plea) would be sufficient to reflect the aggravating features that are present here.

[26] So I must begin by identifying any aggravating features in terms of the facts and circumstances of your mother’s murder.² You will have heard what Ms Clarke and Mr Keegan have said about those. My own analysis is as follows.

[27] First, there is the fact that you used at least one weapon, namely the knife. It is possible, but not proven, that you used some other blunt object to hit your mother. While I accept Mr Keegan’s submission that the use of weapons in murder cases is not unusual, in your case you already had the advantages of size and strength and

_{age – the use of a weapon is properly regarded as an aggravating factor.}

¹ _{Sentencing Act 2002, s} 103(2).

² R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA).

[28] Secondly, there is the extreme loss, damage and harm you have caused to your own family.

[29] Thirdly there is the fact that your mother was in her own home, where she should have felt safe.

[30] I decline, however, to view what you did as premeditated or to give your previous convictions any significant weight. Nor do I consider that things you said and did immediately after the murder should count against you or against any subsequent expressions of remorse.

[31] The most difficult issue for me today is whether it can fairly be said that the way in which you killed your mother can be said to be particularly brutal, cruel or callous when compared with other murder cases. It is always distasteful for a judge and distressing for the family and friends of the victim to have to compare one violent and senseless death with another and to try and draw conclusions about which is worse. As Mr Keegan said, all murders are to some degree brutal and callous. Trying to place any particular act of murderous violence on a continuum, or to compare it with other acts of killing, is always problematic.

[32] In this case there is no doubt that the way in which you killed your mother was brutal. She was a 71 year old woman with a number of physical infirmities. She had no chance of fighting back. You were her son who should have protected her. Instead, and for no reason, you hit her very hard about the face and head a number of times, eventually causing her to fall over and rendering her unconscious. And then you took a knife and deliberately stabbed her eyes and neck. Even if the medical evidence does not permit a firm conclusion that she was still alive and that you must therefore have intended to cause her extra suffering by those acts, there can be no doubt that those acts were gratuitous, and your intention must have been a

_{callous one, an intention to mutilate and disfigure.}³

3. For example, Dawood v R [2013] NZCA 381; Thurgood v R [2012] NZCA 23; and R v Zhou HC Auckland CRI-2005-092-10395, 13 October 2006.

[33] In the end, I have concluded that the brutality and callousness of what you did was sufficiently high to engage s 104. That means that I am required to impose an MPI of 17 unless it is manifestly unjust to do so. The only reason that there might be manifest injustice in your case is because you pleaded guilty early on, which spared the State the cost of a trial and spared your family the anguish of reliving the awful events of 30 January 2015 during a trial and in the media spotlight. Against that, however, there can be little doubt that the case against you was overwhelming. And I have also heard what members of your family have said about a guilty plea being the easy way out for you; there may well be some truth in that.

[34] Nonetheless I do consider it would be manifestly unjust not to give you some credit for your plea. So I propose to subtract one year from the 17 year starting point on that account.

[35] So, Mr Blake, on the charge of murdering your mother, Gwendoline Blake, I sentence you to life imprisonment. You will not be eligible for parole until you have served at least 16 years of that sentence. Stand down.

“Rebecca Ellis J”