R v McIsaac [2016] NZHC 1544 (8 July 2016)

High Court of New Zealand

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R v McIsaac [2016] NZHC 1544 (8 July 2016)

Last Updated: 8 July 2016

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2015-031-001360 [2016] NZHC 1544

THE QUEEN

v

_{ERIC BADEN MCISAAC}

Counsel:	B D Vanderkolk and M J R Blaschke for Crown L C Ord for Defendant
Sentence:	8 July 2016

_{NOTES ON SENTENCE OF COLLINS J}

Introduction

[1] Mr McIsaac, I am this morning sentencing you in relation to three matters: (1) The murder of Alexander Fisher who I will refer to as Alex.¹

(2) Possession of an offensive weapon.²

(3) Burglary.³

[2] In sentencing you I shall:

_{(1) summarise your offending;}

¹ _{Crimes Act 1961, ss 167 and 172.}

² _{Section 202A(4).}

³ _{Section 231(1)(a).}

R v McISAAC [2016] NZHC 1544 [8 July 2016]

(3) explain your personal circumstances;

(4) explain the sentence for the murder charge; and

(5) explain the concurrent sentences I am imposing in relation to the other charges.

[3] Before I begin, I wish to acknowledge the presence of yours and Alex’s family in Court today. The criminal justice system does its best to respond to human tragedies such as these, but it can never properly reflect the loss of a young boy’s life and the grief which I know you and your families will be going through and will always be feeling.

The murder of Alexander Fisher

[4] I turn first to the murder of Alex. Your victim was your 10 year old half brother.

[5] On the 5^th of October 2015, your mother took you and Alex to the Waitarere Domain. You and Alex were planning to spend the night at Waitarere although you did not tell your mother the truth about where you and Alex were going to be staying.

[6] At some point on the 5^th of October, you went to a property that you had previously broken into and removed some bedding that you had left at that property and a wood splitter, which is similar to an axe. You and Alex went to the shops and bought some food and drink and then made your way into the sand dunes at the beach. Alex appears to have fallen asleep in the bedding that you had taken with you.

[7] After Alex had fallen asleep you struck him twice in the head with the wood splitter. Alex would have died immediately and would not have known what had happened.

[8] You left Alex’s body where you had murdered him. The following day you telephoned your mother from a phone box at Waitarere Beach, saying you were distressed and that you needed to talk to her. When your mother arrived at Waitarere Beach you didn’t tell her the truth about where Alex was. She walked around the beach with you. Later that day the police asked you where Alex was. You refused to assist the police in their inquiries. Your conduct is impossible to comprehend particularly given the apparently close relationship that you had with Alex.

[9] The burglary charge relates to your breaking into the property from where you subsequently uplifted the bedding and stole the wood splitter.

[10] The possession of an offensive weapon charge relates to you carrying a knife in public on the 6^th of October 2015 at Waitarere.

Impact of your offending

[11] I turn to the impact of your offending. I have read the victim impact statements. The statement from yours and Alex’s mother is particularly distressing. Her statement reflects the utterly tragic circumstances of losing her youngest son, and in a way, also losing you. She explains that your offending was largely a result of your mental health issues and the lack of help that you have received. She tells of your loving relationship with Alex and how well the two of you got on. Alex’s death has had an extreme impact on your family, and all of the family will struggle with his death every day.

[12] Your offending is really the worst nightmare for any parent.

Your personal circumstances

[13] I turn to your personal circumstances. I have had the benefit of examining the following reports:

(1) a report from Dr Barry-Walsh dated the 12^th of February 2016; (2) a report from Ms Reader dated the 26^th of January 2016;

(4) a letter from Ms Reader dated the 4^th of November 2015; (5) a report from Dr Barry-Walsh dated the 4th June 2013;

(6) a report from Dr Barry-Walsh dated the 11^th of March 2013.

[14] I have been particularly assisted by a further report from Dr Barry-Walsh which was received yesterday.

[15] You are 26 years old. I will not traverse all of your psychiatric difficulties in this public forum. Suffice to say that it is very clear you have had a lifelong challenge with mental health problems. Your mental health problems escalated particularly up to and during your sentence for the arson. These difficulties were very evident in the months leading up to these particularly tragic events. Your mental health issues were manifested by your fixation on the idea that Alex was being abused and that you had cancer and were terminally ill. In his most recent report – while he had trouble conducting interviews with you – Dr Barry-Walsh has concluded that although you do not have an obvious, diagnosable mental illness, you have clear mental health problems. He said it is open to conclude that these problems contributed to your offending.

Sentence for murder

[16] I turn now to the sentence for murder. In sentencing you, I have regard to the purposes and principles in ss 7 and 8 of the Sentencing Act. In particular, it is important to hold you accountable and responsible for the harm you have done, to provide for the interests of the victim – in this case, your family, to denounce your conduct as it is very serious offending and to deter you and others from similar offending and to assist in your rehabilitation. I must acknowledge the seriousness of your offending and give you a sentence consistent with other similar offending. I must also consider the views of your victims and your personal circumstances.

[17] There are a number of steps which I must follow in relation to your murder sentence.

[18] First, I sentence you to life imprisonment pursuant to s 102 of the

Sentencing Act.

[19] In deciding that you must be sentenced to life imprisonment, I have concluded that the evidence does not displace the presumption of life imprisonment in the circumstances of your case, because of the planning involved in the murder and your clear intention to kill Alex.

[20] The second step I am required to take pursuant to s 103 of the Sentencing Act is to determine what minimum period of imprisonment you must serve in relation to your sentence of life imprisonment. The minimum period of imprisonment must not be less than 10 years. In setting the minimum period of imprisonment I am required to consider the following objectives:

(1) holding you accountable for the harm you have done to the community and the victim;

(2) denouncing your conduct;

(3) deterring you and others from committing the same or a similar offence; and

(4) protecting the community from you.

[21] Having regard to these factors I am satisfied a minimum period of imprisonment greater than 10 years is clearly required in the circumstances of this case.

[22] Section 104 of the Sentencing Act is of key importance in your case. That section requires me to impose a minimum period of imprisonment of at least

17 years where the murder involves one or more of the circumstances listed in s 104 of the Sentencing Act. The 17 year minimum period of imprisonment is not to be

imposed however, if I am satisfied that a minimum period of 17 years would be manifestly unjust.

[23] In your case, the Crown says three of the criteria in s 104 of the Sentencing

Act need to be considered:

(1) the Crown says your offending may have involved calculated or lengthy planning.⁴

(2) second, the Crown says your offending involved a high level of brutality;⁵ and

(3) Third, the Crown says Alex was a particularly vulnerable victim.⁶

[24] I will deal first with the issue of vulnerability. Ms Ord submits on your behalf, that Alex was not necessarily vulnerable simply because of his age.

[25] Section 9A of the Sentencing Act, which relates to violence against children under the age of 14, weighs against Ms Ord’s submission.

[26] Even if s 9A of the Sentencing Act did not apply, I would still have concluded that Alex was particularly vulnerable. He was just 10 years old, he was asleep at the time you murdered him. He had no chance of fleeing or defending himself.

[27] I turn now to calculation and planning. Ms Ord also submits that your offending did not involve the requisite level of calculation or planning to trigger s 104(1)(b) of the Sentencing Act.

[28] I am satisfied there was a degree of premeditation and planning involved with your offending. My reasons for reaching this conclusion are that:

(1) You stole the weapon you used to murder Alex and took the bedding he fell asleep in when you led him down to the sand dunes.

⁴ _{Sentencing Act 2002, s 104(1)(b).}

⁵ _{Section 104(1)(e).}

⁶ Section 104(1)(g).

(2) You waited for Alex to fall asleep before striking him twice in the head with the wood splitter.

(3) I am also concerned that you asked your mother to bring Alex along when she dropped you at the beach that day.

[29] These factors lead me to conclude there was some degree of planning and premeditation involved in your offending. The evidence does not, however, enable me to conclude that your premeditation and planning reached the very high threshold required for s 104(1)(b) to be engaged.⁷ The cases require more than some premeditation and planning.

[30] I turn finally to the issue of brutality. Ms Ord also submits that your offending did not involve a high level of brutality. The Crown properly accepts that this criteria in s 104(1)(e) is difficult to assess in the circumstances of your case.

[31] In making my assessment I have examined comparable cases.⁸

[32] In concluding that I cannot be satisfied that your offending satisfies the criteria in s 104(1)(e) I wish to stress that I am not understating the gravity of your offending. Your offending involved a horrible murder.

[33] I ultimately conclude however s 104 of the Sentencing Act is engaged

because of Alex’s particular vulnerability.

[34] The next step in sentencing you requires me to determine if a minimum period greater than 17 years’ imprisonment is required because of other aggravating features.

_{[35] In this case, the Crown says that there are three aggravating features:}

⁷ Desai v R [2012] NZCA 534; R v Weatherston HC Christchurch CRI-2008-012-137,

_{15 September 2009.}

⁸ R v Slade [2005] NZCA 19; [2005] 2 NZLR 526 (CA); R v Kinghorn [2014] NZCA 168 at [47] and R v

Gottermeyer [2014] NZCA 205.

(1) The breach of trust involved because Alex was your younger brother in your care that night. Both you and Alex himself trusted you to care for him.

(2) The fact that your offending occurred while you were on release conditions following your sentence for arson.

(3) The fact that you are to be sentenced for other offending.

[36] While all these matters give rise to concern, they do not in my assessment justify an increase in the 17 year minimum period prescribed by s 104 of the Sentencing Act.

[37] My reasons for reaching this conclusion are:

(1) The breach of trust is substantially incorporated into my assessment that Alex was particularly vulnerable.

(2) The fact that your offending occurred while you were on release conditions is a matter of concern but does not in itself justify me taking the rare step of increasing the minimum period of imprisonment above 17 years.

(3) The other charges for which you are to be sentenced are discrete and can best dealt with by way of concurrent sentences, which I will explain later.

Is a 17 year minimum period of imprisonment manifestly unjust?

[38] I turn now to the key question. Is a 17 year minimum period of imprisonment manifestly unjust. The Court of Appeal has set out a two-step process for this stage of the sentencing.⁹ First, I must consider what your degree of culpability is in relation to the range of murders that come before the Courts. This

_{includes both the factors relating to your offending, and to you as an offender. In}

⁹ R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA) at [52]- [54].

light of that range, I should indicate what minimum term of imprisonment would be suitable.

[39] If I conclude that a minimum term of imprisonment would be less than

17 years under that analysis, I must then decide whether in your case, to impose a minimum term of 17 years would be manifestly unjust.

[40] I have already noted the aggravating factors in your offending. I have had regard to the general range of murder cases that come before the courts, while at the same time acknowledging that offending and personal factors vary widely in murder cases. Your offending was no doubt a horrible, tragic murder. It is sadly, however, not at the worst end of the range that this Court sees. As I shall explain later, you have serious mental health issues. And in my view a minimum term of around 14 to

15 years’ is appropriate in your case.

[41] Turning to the second step in the s 17 analysis which I am required to undertake, there are two reasons why I shall reduce the minimum period of imprisonment of 17 years because, in my assessment, that sentence would be manifestly unjust. Those two factors are:

(1) your early entry of a guilty plea; and

(2) the fact that you suffer from significant mental health difficulties.

[42] The Court of Appeal has explained that a guilty plea could be a relevant mitigating factor when determining whether or not it would be manifestly unjust to impose a minimum period of 17 years’ imprisonment.¹⁰ Case law indicates that generally a discount in the region of one to two years is given for pleas of guilty when s 104 of the Sentencing Act is engaged.¹¹

[43] In this case you entered your guilty plea at the first appearance after you were determined to be fit to plead. Your guilty plea has saved your family the anxiety and

_{stress of a public trial, which would have been particularly severe in the}

¹⁰ _{R v Williams, above n 10, at [66]-[74].}

¹¹ R v Gottermeyer, above n 9, at [85].

circumstances of your case. You have shown some understanding of your offending and the emotional impact it has had on your family.

[44] In my assessment, failing to give you a discount to reflect your guilty plea would be manifestly unjust. I propose to reflect this by reducing the provisional minimum period of 17 years’ imprisonment by 18 months.

Mental health

[45] I turn now to mental health. A defendant’s mental health may be a relevant mitigating factor.¹² The Court of Appeal has held that a defendant’s mental health may justify a substantial discount when assessing the minimum period of imprisonment under s 104 of the Sentencing Act.¹³

[46] The psychiatric evidence from Dr Barry-Walsh in particular leads me to the conclusion that your mental health issues were a factor in your decision to murder Alex. This conclusion does not bring into question the fact that you are fit for trial and that you were not insane at the time of your offending. Nevertheless, your abnormal mental state was a factor that contributed to your decision to take Alex’s life.

[47] I propose to reflect this consideration by reducing the minimum period of imprisonment that you must serve by a further 18 months. I note that Dr Barry- Walsh was constrained in his assessment because of your unwillingness to fully engage with him on the motivations for your offending.

[48] This means that the minimum period of imprisonment you must serve for the murder of Alex is 14 years’ imprisonment. This should not be interpreted as meaning that you will be released from prison after serving 14 years. You are being sentenced to life imprisonment. The very minimum that you must serve is 14 years’

_{imprisonment.}

¹² R v Bridger [2003] 1 NZLR 636 (CA) at [40]-[43] and E (CA689/10) v R [2010] NZCA 13 at

_[68].

¹³ R v Gottermeyer, above n 9, at [86],

[49] You have already been given your strike warning when you entered your pleas.

Concurrent sentences

[50] I turn to concurrent sentences. I will quickly dispose of the other charges, which will be dealt with by way of concurrent sentences.

[51] I sentence you to three years’ imprisonment for the burglary charge and one year imprisonment for the possession of an offensive weapon charge. I also order destruction of the knife.

[52] These sentences are, as I have said, to be served concurrently.

Conclusion

[53] Mr McIsaac, please stand.

[54] I am sentencing you to life imprisonment for the murder of Alex Fisher. The minimum period you must serve in prison is 14 years.

[55] I am sentencing you to three years’ imprisonment for the burglary charge and one year imprisonment for the possession of an offensive weapon charge. These sentences are concurrent.

[56] Stand down.

D B Collins J

Solicitors:

Crown Solicitor, Palmerston North

Ord Legal, Wellington for Defendant