R v Crook [2016] NZHC 215 (18 February 2016)

Last Updated: 17 October 2016

REFERENCE TO SENTENCE INDICATION SUPPRESSED UNTIL SENTENCING OF CO-OFFENDER

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-096-4078 [2016] NZHC 215

THE QUEEN

v

_{KELLY LEIGH CROOK}

Hearing:	18 February 2016
Appearances:	K Feltham for the Crown P V Paino for the Defendant
Judgment:	18 February 2016

_{SENTENCING REMARKS OF THOMAS J}

Solicitors:

Crown Solicitor, Wellington. Paino & Robinson, Upper Hutt.

R v CROOK [2016] NZHC 215 [18 February 2016]

Introduction

[1] Ms Crook, you appear for sentence having pleaded guilty to two charges, one of causing grievous bodily harm with intent to injure and one of being an accessory after the fact to murder. The maximum penalty for each crime is seven years’ imprisonment.¹ The pleas were entered on 16 December 2015.

Facts

[2] The offending stems from an incident which occurred on 27 November 2014. The victim, Mr Matthew Stevens, was known to you, and to your two co-offenders Mr Wilkie-Morris and Mr Wilton.

[3] You lived with Mr Wilkie-Morris in Lower Hutt, with your three children. On that day, you began messaging the victim over Facebook at around 6pm and encouraged him to come to your house for drinks. He expressed concerns regarding his safety, as Mr Wilkie-Morris had made threats toward him in the past. You then falsely informed him that your partner was out of town, and that you were alone at your house.

[4] During this period, Mr Wilkie-Morris and Mr Wilton left the house and began driving around Lower Hutt. You informed them via text and phone calls as to the victim’s whereabouts as he messaged you through the night.

[5] The victim arrived at your house at 10.40pm. You took him upstairs into the bedroom which also served as a lounge and you began to drink together. You immediately informed Mr Wilkie-Morris and Mr Wilton that the victim was there, and both men arrived at the address soon after.

[6] They went upstairs, and a confrontation ensued with the victim. Mr Wilkie- Morris struck the victim with a hammer, on his head and right knee. Mr Wilton then

_{lunged at the victim with a knife and stabbed him twice in the chest and once in the}

¹ Crimes Act 1961, s 188(2) maximum penalty 7 years’ imprisonment and s 176, maximum

penalty of 7 years’ imprisonment.

lower back. The wounds were fatal, and the victim died in the bedroom. Your 10 year old daughter saw the body.

[7] The victim’s body was taken out of the house and placed into the rear of a van. Together, you cleaned the areas of the house where the victim’s blood had been spilt.

[8] You then drove the van, with Mr Wilkie-Morris, to an isolated point north of the Paekakariki Hill summit. Mr Wilton drove the victim’s vehicle behind you. The body was rolled off the face of the cliff, and the car was pushed over at the same place.

[9] The three of you then returned to your house where you continued to clean the address, launder towels and clothing and dispose of weapons which had come into contact with the victim’s blood to conceal evidence.

[10] When arrested, you commented that you had assisted in cleaning the scene and disposing of the body due to threats made by Mr Wilton.

[11] Mr Wilton pleaded guilty to murder and was sentenced to a minimum non parole period of 11 years.

Mr Wilkie-Morris

[12] Mr Wilkie-Smith pleaded guilty and is to be sentenced on 23 February.

[13] The sentence indication given to Mr Wilkie-Morris on charges of injuring with intent to cause grievous bodily harm and being an accessory after the fact to murder treated the injuring with intent to cause grievous bodily harm as the lead charge, with an uplift for the accessory charge.

[14] A starting point of four and a half years for the injuring charge was adopted, considering the guideline cases of Nuku and Taueki, adjusted to reflect the particular charges. A discrete sentence of two and a half years was considered appropriate for

the accessory charge. This resulted in a two year uplift taking into account the totality of the offending.

Victim Impact Statements

[15] The victim impact statements relate to Mr Steven’s death. Your involvement was in causing grievous bodily harm with intent to injure and being an accessory after the fact to murder.

[16] Mr Stevens’ sister and cousin have read their victim impact statements to the

Court today. They spoke eloquently about Mr Stevens and what they have lost.

[17] The victim impact statements from Mr Steven’s mother and father record a devastated family. Each reports that their life has been upturned entirely by the death of Matthew, who was clearly part of a very tight knit, loving family.

[18] Mr Stevens’ parents say that their lives have been shattered. They have had to move house, and reassess all their future plans for retirement. Mr Stevens clearly assisted both his parents greatly. We have heard from his sister about her pain at trying to cope with losing her brother. It is evident that the death has had a huge effect on the family overall.

Personal circumstances

[19] Ms Crook, you are 29 years old. You had been in a relationship with the co- offender Mr Wilkie-Morris, for three months and had been living with him for two months. You left school at the age of 14. You were in your sister’s care from the age of 16, following three years in CYFs care. You have also admitted to being a heavy cannabis user, and a social methamphetamine user but claimed to not be addicted to the drug.

Prior Convictions

[20] You have one conviction from 2006 of producing cannabis, two breach of community work charges and one charge of breaching the conditions of supervision.

Your most significant sentence prior to this was a two and a half month home detention sentence. None of these are relevant to the current charge.

Pre-Sentence Report

[21] The pre-sentence report states that you continue to deny that you enticed the victim to the residence, and that you claim you were under duress and feared for your own safety. You also claim that you did not know your co-offenders had any proclivity to violence.

[22] You expressed remorse for the harm caused to the victim, his family and your own family, especially your children. You were able to appreciate that words expressing your remorse would not be enough to repair what the victim went through, and what his family continue to go through.

[23] You are assessed at a medium risk of violent reoffending, given you minimise your role in the offending. Your risk of harm is assessed as high, given the seriousness of the crime, your poor decision-making and your involvement with those prepared to inflict violence.

Submissions

Crown Submissions

[24] The Crown submits that the causing grievous bodily harm charge should be taken as the lead offence, with an adjustment upward to reflect the accessory charge. The grievous bodily harm offending is said to come within band two of the guideline case R v Nuku, warranting a starting point of two and a half to three years’ imprisonment.

[25] The Crowns submits that a two and a half year starting point would be appropriate for the accessory after the fact offending leading to an uplift of two years considering the totality principle. This is an identical approach to that pertaining to your co-offender. The Crown says that this is appropriate given the identical role that you and Mr Wilkie-Smith had in disposing of the body and cleaning the scene.

[26] The Crown accepts that a 25 per cent reduction for the guilty plea is appropriate.

Defendant’s Submissions

[27] Mr Paino, on your behalf, submits that a starting point of two years would be appropriate for the causing grievous bodily harm with intent to injure charge. He notes that the level of intent in your case differs from that of the principal, and states that your level of premeditation must be measured in that light. He says it was beyond your contemplation that the violence would escalate to anywhere near the level it did. In relation to the accessory charge, Mr Paino submits that you did not play an equal role in the group’s actions, as you drove the van but did not touch the body or handle it. On a totality basis, Mr Paino submits that a starting point of three to three and a half years would be appropriate.

[28] Mr Paino also takes issue with the pre-sentence report from the Probation Officer. He states that there is evidence that you show a large amount of remorse. He refers to a letter written by you to that effect, dated 18 January 2016, which he read to the family today.

[29] In mitigation, Mr Paino submits a letter from your father and a psychiatrist’s report, to point toward the fact that your upbringing shows a vulnerability in your relationships with men which contributed to the bad choices you made. Mr Paino submits that the end sentence should be between two to two and a half years’ imprisonment.

Sentencing

[30] In sentencing you, Ms Crook, I must promote in you accountability for the harm done to the victim and community (s 7(1)(a)), and responsibility for, and acknowledgement of, that harm (s 7(1)(b)). Looking to the principles of sentencing, the gravity of the offending, including the degree of culpability on your part is relevant (s 8(a)), as is consideration of the seriousness of the type of offence (s 8(b)). I must impose the least restrictive outcome which is appropriate in the circumstances (s 8(g)).

Analysis

Causing grievous bodily harm

[31] In this case, the lead offence suggested by the Crown is the causing grievous bodily harm with intent to injure offending, under s 188(2).²

[32] The aggravating factors of that offending were:

(a) Premeditation: this is evident in the fact that the victim was lured by you to the house under false pretences for the purposes of a confrontation with your co-offenders. When he asked you, you told the victim Mr Wilkie-Morris was out of town. The fact your actions facilitated the offending is particularly egregious. You orchestrated the movements of your co-offenders, keeping them informed and telling them when to return to the house.

(b) Multiple attackers: The Crown accepts you were not involved in the physical attack but it was always clearly intended that the victim would be attacked by both co-offenders.

_{[33] I have considered other comparable cases.}³

² The Court of Appeal judgment Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 provides directives as to sentencing in intent to injure cases. Nuku draws on the GBH guideline judgment of R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372, (2005) 21 CRNZ 769, stating that the correct approach is to assess the aggravating features of the offending, with reference to the factors considered in R v Taueki, considering the extent of the violence and the level of injury to the victim.

The following bands apply:

(a) Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender's culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.

(b) Band two: a starting point of up to three years' imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.

(c) Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged

violence is an aggravating factor of such gravity that it will generally require a

starting point within band three, even if there are few other aggravating features.

3 In Katoa v Police [2015] NZHC 1562, the appellant attacked a vulnerable victim who had fallen on the ground with punches and kicks to the body and head. A co-offender smashed a beer bottle and stabbed him in the stomach, lower back and neck. It was a group attack, and although the greatest extent of violence and injury was inflicted by a co-offender with the broken beer bottle,

[34] Mr Wilkie-Booth’s sentence indication took a starting point of four and a half years’ imprisonment on the lead charge, reflecting his intent to cause grievous bodily harm. This clearly elevates his culpability compared to you, whose charge involves an intention to injure.

[35] In my assessment, your offending, involving an essential role in facilitating the attack, falls into the upper end of band two of Nuku.⁴

[36] Taking into account the case law, and your role, I consider a starting point of

two years eight months’ imprisonment is appropriate.

Accessory after the fact

[37] There is no tariff judgment for accessory after the fact charges, reflecting the varied circumstances in which they will occur.⁵

the appellant contributed to the injuries suffered by the victim. The offending was said by the High Court on appeal to be within the middle of band two of the tariffs in the leading case of Nuku v R (warranting up to three years' imprisonment). The offending was opportunistic rather than premeditated, but lead to serious harm. I consider that the role Mr Wilkie-Booth (and Ms Crook as a party played) could be seen as comparable to Mr Katoa’s role within the wider group.

In R v Van Breugel [2013] NZHC 635,the offender and her personal and business partner (both of whom were alcoholics) were at the offender’s home drinking.3 The offender became angry with the victim. While he was asleep in a bedroom, the offender picked up a rubber mallet that was in the kitchen, and hit the victim while he was lying on the bed. He suffered bruising to his arm, torso, upper legs and a wound to his right shin. Peters J saw the offending as impulsive rather than premeditated, but identified the use of a weapon, the multiple blows to different parts of the body and the victim’s degree of vulnerability as aggravating features. A starting point of three years’ imprisonment was adopted. Although the offending in the current case was clearly premeditated, the level of violence inflicted and the use of a weapon were very similar to the present case.

In other post-Nuku cases, see for example Sheppard v R [2013] NZCA 639; R v Rowe [2011] DCR 538, relatively impulsive stabbings following arguments in bars warranted two and a half year starting points. Following that precedent, a two year two month starting point was given in R v Tapueluelu [2014] NZHC 677, a caseinvolving serious injury and attacks to the head in an impulsive fight scenario. I consider that, given the level of premeditation and group attack elements in this case, a higher starting point is warranted.

⁴ In Nuku itself, the offender’s victim was his former partner. He unlawfully gained entry into the victim's home through a window, kicked her about the head, body and legs. There were at least four kicks to the victim's head and face area. The victim sustained bruising and swelling and was taken to the hospital where she had a head wound stapled closed. The Court of Appeal endorsed a starting point of three years' imprisonment. The element of home invasion and premeditation aggravates that offending beyond the offending in seriousness, despite the offender not using a weapon.

⁵ In R v Boskell [2015] NZHC 286, Gendall J surveyed a number of cases relating to accessory

[38] In this case, the accessory offending must be seen as at the highest end of the scale. The offending involved not just disposing of relevant evidence, but also particularly callous treatment of Mr Stevens’ body. I have considered a number of cases involving disposal or destruction of a body.⁶

[39] There are many cases involving assistance by disposing of other evidence or assisting offenders in other matters which seem, generally, to have a high end starting point of around eighteen months’ imprisonment.⁷ However, it is apparent from the cases that where an accessory has been involved in the disposal of a body, the appropriate starting point range is around two and a half to three years’

_{imprisonment.}

after the fact to murder charges. Commenting on that survey in a subsequent case, his Honour concluded that: “from my review of the cases cited in Annexure B to R v Boskell, a clear sentencing theme is discerned that when sentencing accessories after the fact to murder, starting points between 15 and 18 months are appropriate. At least, this is so where the offending lies “somewhere in the middle” of the Duff continuum for such offending”.

In R v Duff HC Rotorua CRI-2009-063-6473, 9 December 2010,Lang J commented on the significant variety of offending encompassed within “accessory after the fact” charges: “the top end of the range is conduct that involves destruction of evidence so that a successful prosecution may be thwarted. At the other end of the scale is an isolated one-off incident in which some form of assistance is given to a fugitive”.

⁶ In R v Vaux-Phillips [2012] NZHC 1119, a three year starting point was adopted where the offender assisted in cleaning up the scene and disposing of the victim’s body, but also helped the principal offender (her then-partner) avoid detection by Police and dishonestly communicated with family and public to suggest that the victim was still alive. The sentence was significantly reduced to account for the mitigating features of the offender. In the older case, R v Raroa [1987] 2 NZLR 486 (CA). the offender assisted by disposing of bodies at sea, following a double murder. The offending was described as a serious offence of its kind, as it was not only “designed to defeat the ends of justice but also causes great anguish to next of kin and considerable distress to the whole community while the search for the bodies continues.” The Court of Appeal upheld a sentence of three years’ imprisonment. In R v Leach HC Wellington CRI 2006-085-4461, 27 October 2006 a starting point of two years six months’ imprisonment was adopted where the offender assisted an associate to clean blood and hide evidence from the scene of the murder (which was also Leach's address) and disposed of the victim's severed hands, before admitting the offending to the Police his role a month later. The Court stated the destruction of the hands was a “grave indignity to the deceased's body and his family”, but that the offending was less serious than Raroa. In R v Cullen HC Tauranga CRI-2008-070-2188, 23

April 2008, a killing occurred in the course of a dispute over drug money, with the offender present. The offender subsequently assisted by moving and disposing of the body, including by assisting dig a hole for the body. The body was placed in the hole and then set alight. The offender came forward to Police over a year later. He was sentenced to a starting point of three years imprisonment, which was recognised as being somewhat reduced given that there was an element of compulsion to the assistance.

⁷ See, for example, R v Shadrock HC Auckland CRI-2009-092-3881, 2 July 2010; R v Graham

HC Christchurch CRI-2004-009-2224, 14 September 2004; R v Ovalau HC Auckland CRI-2006-

092-10484, 13 March 2007.

[40] In this case, I consider that your involvement was significant. Your actions in disposing of the body were calculated and callous. I consider that your role in assisting dispose of the body is not significantly mitigated in any way by Mr Paino’s submissions that you did not touch the victim’s or directly deal with it. You directly assisted in trying to hide Mr Stevens’ body, to prevent it being recovered by his family and by Police.

[41] In those circumstances, I consider a starting point of two years six months’

imprisonment to be appropriate.

[42] Taking the approach suggested by the Crown, and applied to your co- offender, I consider that a two year uplift is appropriate considering the totality of the offending.

[43] That brings the starting point to 56 months’ (four years and 8 months’)

imprisonment before considering mitigating factors.

Mitigating Factors

[44] I accept your genuine remorse, as evidenced by the letter you have written, but consider it is not to the extent as to merit a discrete discount.

[45] Mr Paino submits that you should also receive a discount for your personal history. You obviously experienced a challenging and sad upbringing.

[46] I acknowledge the factors in your psychiatric assessment, and in particular the opinion that you suffer from complex post traumatic stress disorder, are reflective of your history of trauma and abuse. I accept this background contributed to your vulnerability to being involved in offending. I also recognise you have engaged well in psychological therapy. Recognition of that by a small discount is appropriate.

[47] In accordance with authority, you are entitled to credit for your guilty plea. The Crown has accepted that you are entitled to a 25 per cent reduction in your sentence. Although you have been in custody without plea for an extended period of

time, that appears to have been as a result of discussions with the Crown. You pleaded guilty as soon as those discussions were resolved.

[48] A 25 per cent reduction for guilty plea reduces your sentence to three years

and four months’ imprisonment.

Result

[49] Ms Crook, please stand. I sentence you to three years four months’ imprisonment on the lead charge of causing grievous bodily harm with intent to injure, with a concurrent sentence of 22 months on the accessory after the fact to murder charge.

_{[50] You have already received your first strike warning.}

Thomas J