R v Nattrass-Bergquist [2016] NZHC 1090 (24 May 2016)

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R v Nattrass-Bergquist [2016] NZHC 1090 (24 May 2016)

Last Updated: 23 June 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-004-01345 [2016] NZHC 1090

BETWEEN	THE QUEEN
AND	LEONARD NATTRASS-BERGQUIST AND BEAUEN DANIEL GEORGE WALLACE-LORETZ

Hearing:	24 May 2016
Appearances:	DJ Johnstone and D Dufty for Crown MS Gibson and DS Niven for Defendant, Nattrass-Bergquist JIS Kovacevich, V Feyen and B Lauaki for Defendant, Wallace- Loretz
Sentence:	24 May 2016

_{SENTENCING NOTES OF TOOGOOD J}

R v Nattrass-Bergquist and Wallace-Loretz [2016] NZHC 1089 [24 May 2016]

[1] Leonard Nattrass-Bergquist and Beauen Wallace-Loretz: you appear for sentencing after being found guilty by a jury last month of murdering Mr Ihaia Gillman-Harris on 27 December 2014. You were also found guilty of aggravated robbery and unlawfully taking a motor vehicle, offences committed at the same time.

[2] I acknowledge the members of Mr Gillman-Harris’s whanau who are here this morning: Kia ora tatau. I understand their grief and the pain that their brother’s tragic death and the trial have caused them and I extend the Court’s deepest sympathy.

[3] Murder carries a maximum penalty of life imprisonment and that sentence must be imposed unless the Court considers that it would be manifestly unjust.¹

Your counsel, Mr Gibson and Mr Kovacevich, have properly accepted that you must be sentenced to life imprisonment but I am required also to determine the minimum period you will spend in prison before you become eligible for release on parole and, in particular, whether that should be for a period of at least 17 years.²

Factual background

[4] It is necessary for me to explain the facts of the case at greater length than would normally be necessary because my findings about your state of mind at the time Mr Gillman-Harris was attacked are important to my consideration of the minimum period of imprisonment which you should serve before being eligible for parole.

[5] Also, at your trial, there was a major conflict between the Crown’s version of the events which led to your offending and the evidence given by you, Mr Nattrass- Bergquist, and adopted by Mr Wallace-Loretz. In essence, the Crown’s case was that Mr Gillman-Harris was killed when you planned and then carried out a serious assault with intent to rob him. You defended these charges, however, by claiming

_{that there was no planned attack and that Mr Wallace-Loretz hit Mr Gillman-Harris}

¹ _{Sentencing Act 2002, s 102(1).}

² Sections 103(1)(a)(i) and 104.

over the head with a full bottle of spirits when defending Mr Nattrass-Bergquist from a violent sexual attack.

[6] In those circumstances, I am required to approach your sentencing against a factual background that I find to be proved beyond reasonable doubt, bearing in mind the evidence that I heard at trial and the jury’s verdicts. I am satisfied that the Crown proved the following circumstances to the standard required.

[7] Ihaia Gillman-Harris was a 54-year-old man who befriended you a few days before Christmas 2014. He then went to Wellington to spend Christmas with his family. Just before midnight on Boxing Day, you were in touch with Mr Gillman- Harris after he had contacted you to let you know he was back in Auckland. After Mr Nattrass-Bergquist and Mr Gillman-Harris exchanged text messages, you arranged to spend some time drinking with him and he agreed to pick you up from the Pakuranga Mall. At that stage you had a third person with you. It seems that you were collected by Mr Gillman-Harris in his Range Rover shortly after 2:30 am.

[8] I am satisfied that sometime after picking up the three of you, Mr Gillman- Harris propositioned Mr Wallace-Loretz for some sexual contact for which he was prepared to pay as much as $1,000. I accept that the proposition may have come as a surprise to you both but, because of your exchanges by text message and what happened later, I do not accept that you were as deeply upset by the proposition, Mr Nattrass-Bergquist, as you claimed when you gave evidence at trial.

[9] Just after 5:00 am Mr Nattrass-Bergquist asked Mr Wallace-Loretz if you should “roll” Mr Gillman-Harris. The exchanges of text messages which followed prove that you agreed on a joint enterprise to seriously assault Mr Gillman-Harris and steal his money. To be sure that he had money on him, it was arranged that at least one of you would tell Mr Gillman-Harris that you were prepared to grant sexual favours for money knowing that he would then go and get some. I am also satisfied that there was a discussion about using, in the assault, a bat of some kind which had been stashed in a hiding place near the Pakuranga Mall. Although Mr Wallace- Loretz talked about not using the bat to hit Mr Gillman-Harris’s head, there was discussion about breaking his leg.

[10] The evidence established, in my view, that you persuaded Mr Gillman-Harris to take you back to the Pakuranga Mall and that Mr Wallace-Loretz got out of the car, picked up the bat, and returned with it to his place in the back seat of Mr Gillman-Harris’s car. Your companion looked through Mr Gillman-Harris’s bag and realised he only had $20 in it. Mr Wallace-Loretz suggested that you would go to a motel with Mr Gillman-Harris and “smoke him there”. Your companion got out of the car somewhere around 6:40 am.

[11] Mr Gillman-Harris then drove the two of you to a motel in Newmarket but it was closed. There is then a gap in the text messages between 7:00 am and 8:00 am during which Mr Gillman-Harris took you to a Burger King restaurant. I am satisfied that while you were there you arranged with Mr Gillman-Harris that either or both of you would have sex with him in exchange for $400. Mr Gillman-Harris then drove to an ATM machine in Epsom where he withdrew that amount in total from two separate accounts, and then went with you to the Ascot Motel in Epsom, arriving there just after 8:00 am. After paying by credit card, Mr Gillman-Harris opened the motel unit and you went inside while he parked his car at the back of the motel. I do not doubt that Mr Wallace-Loretz carried the bat into the motel with the intention of using it to carry out your planned attack.

[12] You gave evidence, Mr Nattrass-Bergquist, that when Mr Gillman-Harris entered the motel unit through the rear door he opened up his laptop and began showing a pornographic video from the Internet. You said you were so affected by his actions that you slammed the lid of the laptop and that Mr Gillman-Harris then reacted violently, pushing you onto the bed and sexually assaulting you. You said that Mr Wallace-Loretz came out of the motel bathroom, saw what was happening and went to your defence, striking Mr Gillman-Harris across the head with a bottle of spirits which Mr Gillman-Harris had carried into the motel in his laptop bag.

[13] It will be clear from what I have said that I do not accept that account of events. The jury’s verdicts, with which I agree, mean that they must have been satisfied beyond reasonable doubt that your account was untrue. Although I accept that you had been violently sexually assaulted by a friend of your father when you were only seven years old, I infer that you used that traumatic experience to make up

a story of a very nearly identical attack by Mr Gillman-Harris to defend the charge of murder.

[14] It is more than likely, in my view, that while Mr Gillman-Harris was distracted by playing the video on his laptop, Mr Wallace-Loretz approached him without warning and struck him with the bat. However, I cannot be sure exactly what happened in the motel room or what part each of you played. It is clear to me, however, that Mr Gillman-Harris was struck at least four, and probably five, times across the head with the bat and that he was also struck on his body. I acknowledge that Dr Morrow could not say whether the long bruise on Mr Gillman-Harris’s torso was caused by a blow or by his falling against the coffee table, but I have no doubt that he was struck at least on the legs causing the severe bruising which was evident there. Whatever part each of you played in that dreadful attack, it was part of a joint enterprise for which the jury – quite properly – has held you both responsible.

[15] I am satisfied on the evidence that you did not intend to kill Mr Gillman- Harris and also that you did not, at the time of the attack, appreciate the risk that he might die from the blows that were struck. I have concluded that whoever struck Mr Gillman-Harris with the bat – whether just one of you or both of you – did so in something of a frenzy without giving any thought to the risk of death. I am sure, however, that you intended to cause Mr Gillman-Harris really serious harm in order to rob him and get away without being caught. That is the very thing that you had planned by your text messages.

[16] Mr Gillman-Harris died about five hours after the attack, while undergoing surgery for the very serious head injuries you inflicted. The jury’s verdicts on the murder charge mean that they were satisfied beyond reasonable doubt that the severe injuries were an operating and substantial cause of death. Because Mr Gillman- Harris died as a result of the planned attack, the jury rightly convicted you of murder.

[17] Taking the $400 he had withdrawn a short while previously and his car keys, you left the motel carrying the bat and drove Mr Gillman-Harris’s car to Pakuranga where you abandoned it. The jury’s verdict on the unlawful taking charge means that they rejected your evidence that Mr Gillman-Harris told you to take the car, as I do.

[18] The Court has received victim impact statements from members of Mr Gillman-Harris’s whanau. You have just heard two of the family members reading extracts. Understandably, Mr Gillman-Harris’s family are distressed by the very public discussion of his personal life exposed on television, radio and in the newspapers and by his being judged and criticised by people who did not know him.

[19] Mr Gillman-Harris is described by those who did know him as a kind, loving, generous and good-humoured man. They say he was highly intelligent; that he spoke several languages; and that he was a gentle soul with a big heart. Contrary to the assertions made at trial, it is said he spent a considerable amount of time looking after his father who died only three months earlier, and lived with him there.

[20] It is very difficult for the family to comprehend and process the pain and suffering that Mr Gillman-Harris must have endured in his final moments, particularly knowing that he was alone. One family member speaks of the images playing over and over in his head, and another finds it difficult to sleep. A sentiment that is repeated in a number of the statements is that Mr Gillman-Harris did not deserve to die in such a violent manner, no matter what his lifestyle choices.

[21] The murder and subsequent court process have placed immense strain on family relationships and friendships, and some family members have suffered significant deteriorations in their mental and physical health following the murder. A number of whanau members express sadness that the younger members of their family have been denied the opportunity to meet and to know Mr Gillman-Harris. They feel he has been stolen from them in particularly difficult circumstances, coming only a few months after the death of their father.

[22] Despite having such feelings, two members of the family forgive you and hope that you will both receive the support you will need to get through the rest of your lives.

[23] I now address your personal circumstances.

Mr Nattrass-Bergquist

[24] Mr Nattrass-Bergquist: you were 17 years old at the time of the offending; you are now just 19 years old. You were born and raised in Auckland. Although you currently appear to enjoy a close bond with your family, I am aware that you had an unsettled childhood. You have no previous convictions but you have previously come to the notice of Police Youth Aid for matters which reflect the unguided way you were living at the time of this offending.

[25] I have referred already to the sexual assault to which you were subjected when you were seven years old. I accept that it was a traumatic experience for you, so much so that it has affected your behaviour since and, particularly, your ability to perform effectively at school. You left school at 15 without any formal qualifications, but prior to your arrest on these charges you were attending an automotive course at Unitec and you had a part-time job.

[26] You are interested in continuing your studies and pursuing job opportunities. Since you have been in prison, you have enrolled in NCEA courses in business studies, legal studies, commerce, English and economics. It is reported that you are doing well in these courses and that you have a desire to finish them. I congratulate you on your efforts and wish you well with them in the future. The author of your pre-sentence report describes you as respectful and engaged, and as someone who is keen to take part in the rehabilitation programmes that are available. You are entitled to credit for showing that you have already begun to rehabilitate yourself. Recommendations have been made for you to undertake drug and alcohol, and violence prevention courses.

[27] A report by a clinical psychologist describes you as a “caring soul” who is

“naïve and still vulnerable”. That reflects the evidence which was given at trial. It is

encouraging that the people who care about you – your mother especially – have continued to support you after the verdicts.

[28] The pre-sentence report says that you became upset when the victim’s name was mentioned in discussions with the probation officer who was unable, therefore, to discuss the circumstances of the offending with you. This means that you have not taken responsibility for what you did. Nevertheless, the author assessed that you have a low risk of re-offending in a similar manner.

Mr Wallace-Loretz

[29] Mr Wallace-Loretz: you have had an appalling upbringing. You have been both a victim of, and a witness to, serious physical violence throughout your life. During your childhood, you suffered severe beatings at the hands of your father. At one point when you were a baby, he cracked your head so severely that you were in hospital for three months.

[30] You did not attend school beyond Year 7, and from this point your living arrangements became inconsistent and semi-transient. You were listed as a missing person on at least six occasions during 2011 and 2012. You associated mostly with older people, some of whom had criminal tendencies, but you have no history yourself of prior criminal offending.

[31] The pre-sentence report also says that you have had a habit of regular and excessive alcohol consumption. You have used cannabis frequently. Nevertheless, while in prison you have engaged in one-on-one alcohol and drug counselling, and you have passed the frequently-administered drug tests. You have also improved your skills in literacy and mathematics. You are now studying towards NCEA Level Two. This is all to your credit and I encourage you to maintain that course.

[32] The pre-sentence report says that you still maintain that you acted only in defence Mr Nattrass-Bergquist. Although you are not remorseful for your actions, you have expressed some insight into the consequences of them: you have expressed

sympathy for the victim’s family, and sorrow about the fact that someone has died at

your hands.

[33] Your likelihood of future offending is assessed as being dependent on your rehabilitative efforts. You have had lengthy periods of good behaviour in prison, punctuated by occasional episodes of aggression and disobedience. The author of the report came away with the impression that you are mostly pleasant, although you have a deep well of anger. There are courses which will be available to you, Mr Wallace-Loretz, to deal with those issues.

Purposes and principles of sentencing

[34] I now turn to your sentencing. In sentencing you both, I must hold you accountable for Mr Gillman-Harris’s death and the distress you have caused to his family.³ I must condemn your actions;⁴ deter you and others from committing

similar offences;⁵ and, if I can, help you both to acknowledge and take responsibility

for what you did.⁶ You have committed the most serious of crimes, and your sentence must reflect that.

[35] That being said, I must also consider your personal circumstances. You are both still teenagers with many years ahead of you. I must consider your maturity and mental capacity, and choose a sentence which is not crushing and which encourages you to turn your lives around.

[36] Ultimately, you will receive a proper sentence which is tailored to the circumstances of your offending and the consequences of a tragic death.

Minimum period of imprisonment

[37] As your counsel have properly acknowledged, I must sentence you to life imprisonment. But the law says that consideration will be given to releasing you on

³ _{Section 7(1)(a).}

⁴ _{Section 7(1)(e).}

⁵ _{Section 7(1)(f).}

⁶ Section 7(1)(b).

parole after you have served a minimum period of imprisonment, so the most important decision for me is to decide the length of that period.

[38] The minimum period of imprisonment must be one of least 10 years,⁷ but the law requires me to impose a minimum period of imprisonment of at least 17 years if I consider that the murder was committed with a high level brutality,⁸ or if the murder was committed in the course of a serious crime, such as aggravated robbery,⁹ unless it would be manifestly unjust.¹⁰

Crown submissions

[39] The Crown says that, because of the circumstances of your offending, my starting point must be the minimum period of 17 years’ imprisonment. Nevertheless, it is conceded that, when I consider whether a minimum of 17 years would be manifestly unjust, I must recognise that there are other factors, such as your youth, which should be taken into account by way of a discount.¹¹ The Crown submits that the minimum period of imprisonment should be at least 13 years.

Defence submissions

[40] All counsel have referred me to previous decisions of this Court and the Court of Appeal which they say will guide me in determining what minimum period to impose. I have read the cases and I am grateful to counsel for their helpful discussion of them. Referring to what the courts have said on other occasions, Mr Gibson and Mr Kovacevich say that a minimum period of less than 13 years is appropriate, particularly when I take into account that you were only 17 years old at

_{the time of the offending.}

⁷ _{Section 103(2).}

⁸ _{Section 104(1)(e).}

⁹ _{Section 104(1)(d).}

¹⁰ _{Section 104 (1).}

¹¹ R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA).

Aggravating and mitigating factors of the offending

[41] In making an initial assessment of the seriousness of your offending, I am required to take into account a number of aggravating features. They include that it involved a degree of planning.¹² I accept, however, that the planning was not lengthy or particularly sophisticated. It began in the few hours before the attack, after you had been drinking alcohol, and in that sense your offending was opportunistic (although it did involve persuading Mr Gillman-Harris taking you to

where the bat was hidden).

[42] I also take into account that the attack was intended to help you rob Mr Gillman-Harris;¹³ that a weapon was used;¹⁴ and that the murder involved multiple blows to your victim’s head.¹⁵ It was callous of you to steal Mr Gillman- Harris’s money and his car keys and then take his car to make your getaway, leaving him in the motel when you must have known that he was seriously injured.¹⁶ You could at least have called an ambulance from the motel room before you fled, but you showed no concern for Mr Gillman-Harris’s wellbeing, and later that night you went to a party. Those aggravating features indicate that, if you were adult offenders, a minimum period of imprisonment of more than 10 years would be

appropriate (in my assessment, something of the order of 15 to 16 years) before mitigating factors are considered.

Personal mitigating factors

[43] I must also consider the factors which are personal to you. Both of you were only 17 years old at the time of your offending and it seems to me that your actions were at least partly the result of youthful and misguided bravado. Most importantly, however, I am satisfied that in the lead-up to the attack, you failed to appreciate the

_{terrible consequences of what you planned to do.}

¹² _{Sentencing Act 2002, s 9(1)(i).}

¹³ _{Section 9(4)(a).}

¹⁴ _{Section 9(1)(a).}

¹⁵ _{Section 9(1)(a) and s 9(4)(a).}

¹⁶ Section 9 (4)(a).

[44] The courts recognise that the age of an offender can be a mitigating factor in sentencing because the brain of a human male is not fully developed until around 25 or 27 years of age. Scientific research shows that the part of the brain which provides the ability to plan, consider, control impulses and make wise judgments is the last part of the brain to develop.¹⁷ Most adolescents know right from wrong,¹⁸ and I have no doubt that was so in this case. But the environment in which risk- taking and other behaviours occur can lead to inappropriate behaviour and adolescents are more prone to react with gut instincts and impulse, and aggressive behaviour.¹⁹

[45] Your current ages also mean that you have a greater capacity for rehabilitation.²⁰ You have not acknowledged responsibility for what you did and I do not accept that either of you is genuinely remorseful at this stage; you remain in a state of denial. But I regard that as a coping mechanism and I consider that there is still a real likelihood, as you get older and receive appropriate help, that you will mature and develop insight into your offending and your actions generally. I have acknowledged that both of you have already taken important steps down this path by working on your education since you have been in prison, and undertaking

counselling. This shows a commendable commitment to turning your lives around.

[46] I acknowledge also that, at only 19 years of age, it would be particularly harsh to start a life sentence facing a minimum of 15 or 16 years in prison.²¹ It would not be in the interests of the community to impose a very long prison sentence which gives you no prospect of release until you were in your mid-30s; it is important that you should have a reasonable hope of release on parole much sooner than that.

[47] In this case, I consider a total discount of five years for your youth would be appropriate, bearing in mind particularly my finding that you did not at any stage

_{intend to kill Mr Gillman-Harris or turn your minds to the possibility he might die.}

¹⁷ _{R v Churchward [2011] NZCA 531 at [80(a)].}

¹⁸ _{At [80(c)].}

¹⁹ _{At [80(d)].}

²⁰ _{At [77(c)].}

²¹ At [77(b)].

[48] I have also noted the nature of your upbringings, the traumas you have suffered, and the lack of settled family lives and would take those matters into account by allowing a further discount of one year.

[49] Finally, I note Mr Nattrass-Bergquist that you spent over a year on electronically monitored bail with restrictive conditions. You were mostly compliant and you would be entitled to a further three-month discount on that account.²²

[50] Taking that approach means that, before taking account of s 104 of the

Sentencing Act, I would impose minimum periods of about the least available.

Section 104, Sentencing Act 2002

[51] Although your attack on Mr Gillman-Harris was brutal and your behaviour after it was callous, most murders inevitably involve some form of brutality and callousness. Comparing this to other cases, I consider that those features of this case are not so high as to engage s 104.²³ But Mr Gillman-Harris’s murder was committed in the course of committing an aggravated robbery. That means that, unless I regard it as manifestly unjust to do so, the law compels me to impose a 17- year minimum term.²⁴

[52] A starting point of 17 years is reserved for the most serious murders.²⁵ A feature of this case which distinguishes it from other murders where a minimum period of 17 years’ imprisonment or more has been imposed is that you did not intend to kill Mr Gillman-Harris or even turn your mind to the risk of his death. You were convicted of murder only because he died as a result of an attack in which you planned only to cause him really serious harm so you could rob him.²⁶ Without in any way minimising the tragic and devastating consequences of your actions for Mr Gillman-Harris and his family, it is only because of the unusual way the law

_{treats your offending that you are being sentenced for murder and not manslaughter.}

²² _{Sentencing Act 2002, s 9(3A).}

²³ See R v Gottermeyer [2014] NZCA 205 at [77]–[82]; R v Eddy [2014] NZHC 1543; R v Schofield [2015] NZHC 2109. Compare R v Lavemai [2014] NZHC 797; R v Rewha-Te Wara HC Hamilton CRI-2010-019-5681, 30 September 2011; R v Blake [2016] NZCA 82.

²⁴ _{Sentencing Act 2002, s 104(1)(d).}

²⁵ _{R v Williams, above n 11, at [47].}

²⁶ Crimes Act 1961, s 168(1)(a).

[53] For that reason and because of the mitigating factors I have mentioned already, especially your youth, I regard this case as falling outside the policy reasons for which Parliament enacted s 104. I am more than satisfied that it would be manifestly unjust to impose a minimum period of 17 years’ imprisonment.

[54] Allowing a discount of five years imprisonment for your youth, and a further discount of one year for the effects on you of traumatic experiences in your past, I reach a minimum period of 11 years. The terms I impose will distinguish between you only because Mr Nattrass-Bergquist is entitled to a further discount of three months for the lengthy time spent on very restrictive bail.

[55] I am also required to sentence you on the other charges. You will be sentenced to appropriate terms of imprisonment which you will serve at the same time as your life sentences for murder.

Explanation of final sentence

[56] Before I formally pass sentence on you, I want to make the overall meaning and effect of these sentences as clear as I can to you and to others who have followed this case.

[57] You will be sentenced to life imprisonment. That means you will be under the control of the Department of Corrections for the rest of your lives. But you will be given an opportunity, after the minimum periods have expired, to show that you have turned your lives around and that it is safe to allow you to re-enter the community.

[58] You can help that by taking responsibility for your actions and acknowledging what you have done; behaving well in prison; and applying yourselves to your education and the rehabilitative programmes available to you.

[59] If you are released but you breach any of your release conditions, you will have to go back to prison immediately to finish your sentence. But if you do work hard to rehabilitate yourselves and comply with the conditions of your release, you

will have the opportunity to lead normal lives by finding employment, having relationships and, if you wish, starting families with many years of productive lives ahead of you. Your futures are in your hands.

Result

[60] Mr Nattrass-Bergquist and Mr Wallace-Loretz, would you please stand.

[61] Leonard Nattrass-Bergquist: on the charge of murder I sentence you to life imprisonment and I order you to serve a minimum period of imprisonment of

10 years nine months. On the charge of aggravated robbery, I sentence you to five years’ imprisonment, and on the charge of unlawfully taking a motor vehicle, I sentence you to three months’ imprisonment. Those terms are to be served concurrently.

[62] Beauen Wallace-Loretz: on the charge of murder, I sentence you to life imprisonment and I order you to serve a minimum period of imprisonment of

11 years. On the charge of aggravated robbery, I sentence you to five years’ imprisonment, and on the charge of unlawfully taking a motor vehicle, I sentence you to three months’ imprisonment. All terms are to be served concurrently.

[63] Please stand down.

....................................
Toogood J