R v Scott [2016] NZHC 290 (26 February 2016)

High Court of New Zealand

[Index] [Search] [Download] [Help]

---

R v Scott [2016] NZHC 290 (26 February 2016)

Last Updated: 26 February 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-044-4451 [2016] NZHC 290

THE QUEEN

v

_{BRENT DONOVAN SCOTT}

Hearing:	26 February 2016
Appearances:	R M McCoubrey for Crown M J Dyhrberg QC for Defendant
Date:	26 February 2016

_{SENTENCING REMARKS OF M PETERS J}

Solicitors: Meredith Connell, Crown Solicitor, Auckland

_{Counsel: M J Dyhrberg QC, Auckland}

R v SCOTT [2016] NZHC 290 [26 February 2016]

Introduction¹

[1] Mr Scott, you are for sentence on the following charges, to which you pleaded guilty on 16 December 2015. The first is the murder of your estranged wife, Heidi Welman-Scott and you are also for sentence on the attempted murder of your stepdaughter, Taryn Welman, and her partner, Matija Miletic.²

[2] You committed these crimes on 27 November 2014 at what had been the marital home in Albany, and which your wife occupied after you separated in 2013.

[3] The sentence on a charge of murder charge is life imprisonment unless that sentence would be manifestly unjust.³ Nothing in the circumstances of this case would make that sentence manifestly unjust.

[4] Accordingly, on the charge of murder, you will be sentenced to life imprisonment. I have already warned you of the consequences of the commission of another serious violent offence.⁴

[5] In addition, however, I must order you to serve a minimum period of imprisonment which I will refer to as the MPI. An MPI is not the sentence that you will serve. It simply marks the period of time that you must wait before seeking parole. The important issue today is the length of that MPI.

Documents

[6] I have an agreed summary of facts and I have also read a report by Dr Russell Wyness, a psychiatrist. I have had the benefit of comprehensive submissions from counsel and I also have the pre-sentence report.⁵

[7] Dr Wyness’s report followed meetings with you in December 2014. At the time Dr Wyness was satisfied that you had no recollection of the events of

¹ _{Words in italics not read at sentencing, with the agreement of counsel.}

² _{Crimes Act 1961, ss 167(a) and 173.}

³ _{Sentencing Act 2002, s 102.}

⁴ _{Minute of 17 December 2015.}

⁵ Report of Dr R Wyness dated 9 February 2015; Crown Submissions dated 20 November 2015; Amended Memorandum on Behalf of Defendant dated 15 December 2015; and Provision of Advice to Courts Report dated 13 January 2016.

27 November. Ms Dyhrberg does not wish to have that report updated because she does not believe that any real purpose would be served by doing so.

[8] I have also read and listened to the victim impact statements. And as Crown counsel said, those in Court today have not had the benefit of hearing the statement of Mrs Welman-Scott’s mother. Her life, and the lives of all of those you heard from, have been thrown into complete turmoil. They are shocked, traumatised and devastated and your actions have changed the course of their lives forever. And of course we have not heard from your son, Keagan. I cannot imagine what the consequences of your actions – his own father – will be for him, although Ashley Welman did refer to some of them.

[9] Mr Scott, you will not have been in any doubt about the consequences of your actions at the time and you will not be in any doubt about them now. You killed a mother; a daughter; a sister and clearly a close friend of many.

[10] Let me start with the facts because they largely determine the MPI.

Facts

[11] You and Mrs Welman-Scott married in South Africa in the late 1990s and you relocated to New Zealand in 2002. Taryn, your wife’s daughter, would have been four or five, and together you had a son, Keagan, in 2000.

[12] By late 2013, you and your wife were unhappy and you separated. Your wife remained in the home and Taryn and Keagan were living there also.

[13] One of the matters that is apparent from the agreed summary is that your wife, and members of her family, alleged that you were violent. I do not know whether those allegations were fair at the time they were made but I shall mention them for reasons which will become clear.

[14] Just by way of example, the summary records that Taryn and Mrs Welman- Scott’s brother, Ashley, expressed concern to the Police that you had a firearms licence. That led the Police to revoke that licence in January 2014.

[15] In February 2014, on your wife’s application, the Court made a temporary protection order. That order required you to stay away from the house in Albany.

[16] I do not know the basis of your wife’s application for that order, in February

2014, but I do know the Court discharged it following a hearing in May 2014. So that was the end of that protection order.

[17] In early March 2014, Mrs Welman-Scott asked the Police to enforce an occupation order and then, in late July 2014, you were issued with a five day “Police Safety Order”.

[18] In August 2014, again at your wife’s instigation, the Court issued another temporary protection order – not because you had been violent but because you had been texting your son Keagan and because you and your wife had some argument about motor vehicles. But again, that order required you to stay away from the home in Albany and it was in place on 27 November 2014 when you murdered your wife.⁶

[19] You were in South Africa when your wife obtained the August protection order and you received it when you came back to New Zealand. On 29 September

2014, so about a month later, you were arrested for breaching it because you had been texting your son.

[20] You appeared in Court on that charge of breaching the protection order in mid October 2014. You were given bail on condition that you not contact your wife or your son and were remanded to come back to Court on 27 November 2014 – which of course is the crucial date.

[21] Ms Dyhrberg has told me that in the middle of all that – around 12 November

– the Police agreed to withdraw the charge. But that does not seem to have affected your actions.

[22] From October on, you started making arrangements to fly back to South

_{Africa on 27 November – the day you were meant to be appearing in Court.}

⁶ Domestic Violence Act 1995, s 19(2)(c).

[23] You made five visits to a travel agent between mid-October and

21 November 2014.

[24] On the first visit you booked a flight for 27 November. You told the consultant that was the day you wanted to go because you were not going to turn up for a Court appearance and said that you would not be coming back to New Zealand.

[25] On your next visit you paid for your tickets and asked the consultant to hold all the documents “so that nobody would find them”. On your next visit, in early November 2014, you asked the consultant not to contact you via email, in case someone saw it.

[26] You went back to the agent a week or so later and said you would catch your flight if you were not in prison or arrested.

[27] And then on 20 or 21 November you picked up your tickets.

[28] In considering your conversations with the travel agent, I ask why you thought it was important that no-one knew your plans. Your wife plainly did not wish to see you, so she would not have objected to you going and you were free to travel – provided of course you kept to that Court appearance on 27 November.

[29] So, those are the arrangements you made Mr Scott and those were the discussions you had with the travel agent over that four or five week period.

[30] On 23 November, you bought two knives. One had a serrated 20 centimetre blade, the other 15 centimetres. There is no dispute that you bought these knives to attack your wife, if not to kill her. There was no other reason to buy them, especially if you were leaving the country.

[31] On 25 November, so just a couple of days later, you sold your car telling the buyer that you were “going back to South Africa, you can’t shoot or stab anybody here”.

[32] Now to 27 November 2014. On that day the temporary protection order was in place and you were still on bail.

[33] You were also meant to be appearing in Court but instead of that you drove a truck you had hired to Albany at about 7.15 am.

[34] You parked about 100 metres away from the house, walked there, and hid. You should not have been anywhere near the place.

[35] Your wife, a nurse, got home from work shortly before 7.30 am and then drove Keagan to school about an hour later. She got home at 8.48 am and drove her car into the garage. By that time you had been hiding at the property about an hour and a half.

[36] You entered the garage with a knife just as the door was closing behind your wife. You stabbed her in the chest and abdomen.

[37] Taryn and Mr Miletic heard her screaming and they ran to the connecting door between the house and the garage. Your wife tried to get through the door. You closed it, did not let go of your wife even when they got it open again and in the course of all that struggling, you stabbed Taryn twice and Mr Miletic once.

[38] They collapsed outside, your wife managed to free herself and also collapsed outside the property. She died of her injuries shortly afterwards, despite the best efforts of those nearby.

[39] You left the house at 8.51 am, a mere three minutes after your wife had arrived home.

[40] You did not stay to help or to talk to the ambulance staff or to hand yourself in to the Police. Rather, you walked back to the truck; returned it to the hire company; and then had a friend drive you to the airport. You were waiting for your flight when you were arrested.

[41] You stabbed your wife at least six times. The fatal wound was 13 centimetres deep.

[42] One of your stab wounds to Taryn went through her chest and punctured her lung. The second went through her abdomen and required invasive surgery. Your stab wound to Mr Miletic caused life-threatening internal bleeding and he also required surgery.

[43] The knife or knives you used have not been found.

[44] The pre-sentence report states that you are entirely without remorse. I have read the letter you sent recently which expresses your sadness and sorrow at the events that occurred and you also, I should add, express the hope that the grief of your wife’s family will lessen over time. But these count for nothing today, Mr Scott, because your actions on the day were deliberate.

Sections 103 and 104 Sentencing Act 2002

[45] I come now to the question of the MPI.

[46] The MPI for murder is at least 10 years and must be the minimum necessary to hold you accountable for the harm you have done; to denounce your conduct; to deter you and others from committing the same or a similar offence; and to protect the community from you.⁷

[47] In some cases of murder the Court is required to impose an MPI of at least

17 years, unless it would be manifestly unjust to do so.⁸

[48] Despite your counsel’s submissions, this is a case for an MPI of at least

17 years and it would not be manifestly unjust to impose that period. My reasons for that conclusion are as follows.

[49] First, you planned this attack carefully and over a significant period of time. It was a case of calculated and lengthy planning.

[50] Ms Dyhrberg acknowledges that, at the very least, your purchase of the knives four days before shows premeditation. So, her submission is that any planning was relatively brief and not on a par with what has occurred in other cases.

[51] Even if your planning did commence with the purchase of the knives four days before, that is still a lengthy period. Quite long enough to think better of your actions.

[52] Ms Dyhrberg contrasted your case with Desai v R.⁹ The offender in Desai travelled to New Zealand from Australia on a one way ticket, immediately acquired a knife, and the means to break into the marital home, and a day and a half later, late at night, murdered his wife. Prior to coming to New Zealand that offender had given up his job and accommodation and sold his belongings. I do not consider your case to be materially different from that, even if you did not form the intention prior to buying the knives.

[53] In R v Smith,¹⁰ another case of premeditation, the offender disguised himself; took a knife and a drill; entered the house with a key; hid in the roof space and carried out various preparations in a short space of time, but all no doubt carefully thought through in advance. The offender waited for his wife to come home and to go to sleep, and then he killed her. I accept that the offender in Smith went to great lengths to hide himself in the house but, again, I do not consider the case materially different to yours.

[54] But, in any event, I think you planned this over six weeks, not four days. Your remarks to the travel agent about the need to keep things secret and that she should not email you and so on leads me to conclude that by mid-October 2014 you had decided that you would injure or kill your wife on 27 November 2014 and then leave the country.

[55] Your actions on the day were also carefully planned – parking the truck some distance away; arriving before your wife got home from work; and hiding until she was alone in the garage.

[56] So, I think you started planning this in mid-October and that you kept planning it for about six weeks.

[57] Secondly, you entered onto or were present at the property unlawfully because of the protection order that was in place and the bail condition requiring you not to associate with your wife or your son.¹¹ I take Ms Dyhrberg’s point that this was not a home invasion carried out in the dead of night when occupants are asleep, as was the case in R v Mason,¹² but there were Court orders in place telling you to stay away.

[58] Thirdly, your offending was callous. You stopped your wife from escaping into the house; you stabbed her daughter and partner to prevent them from rescuing her; you left the scene without helping; and then you were sufficiently collected to return the truck, go to the airport and wait for a plane. But for the quick actions of the New Zealand authorities, you would have been on your way back to South Africa.

[59] Fourthly, the very serious attacks on those who tried to rescue your wife make this an exceptional case. It is exceptional for an offender to be so determined to kill that he stabs two people, and one his young step daughter at that, when they are trying to rescue the victim. In another case, Mason v R,¹³ Heath J held that it was an exceptional circumstance to commit attempted murder in the course of committing murder. In this case, there are two attempted murders.

[60] I should record that I do not accept the Crown’s submission that your offending involved a breach of trust or that the protection order made your wife

_{particularly vulnerable.}¹⁴ _{Your wife plainly did not trust you. You did trap her in the}

¹¹ _{R v Christison [2013] NZHC 2813.}

¹² _{R v Mason [2012] NZHC 1849.}

¹³ Mason v R [2013] NZCA 310, (2013) 26 CRNZ 464.

garage but I am not satisfied that is sufficient on its own to bring this case within the critical provision of the Sentencing Act 2002.

[61] So, in my view Mr Scott, this is a case for an MPI of at least 17 years and it would not be manifestly unjust to impose that period. Other offenders who planned the murder of their estranged spouses, such as Desai and Smith, were both sentenced to serve MPIs of 17 years.

[62] I accept that the offender in R v Singh, received a substantially lesser MPI. In that case, the offender murdered his wife at a language school or similar, and also attempted to murder someone he thought was in a relationship with her.¹⁵ The Court adopted a starting point for the MPI on the murder charge of 12 years, six months. However, in that case, the Crown did not contend that s 104 applied. The premeditation in that case was of a matter of hours, not days; the attack took place in broad daylight; and the level of violence was not extreme.

[63] Accordingly, the MPI on the murder charge will be 17 years.

Attempted murder

[64] I turn now to the charges of attempted murder. Everyone who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years.¹⁶

[65] The aggravating features of your offending are the use of the weapon, your unlawful entry onto the property, the serious injuries caused, and the fact that your victims were seeking to save someone else. I accept there was no premeditation to that offending. There are no mitigating factors relating to that offending either.

[66] Having considered counsel’s submissions and the authorities to which they have referred me in respect of these charges, I am satisfied that the starting point on the attempted murder charges would, if they stood alone, be at least 10 years. That said, Ms Dyhrberg and Crown counsel are agreed that I should deal with these two

_{charges by increasing the MPI by two years.}

¹⁵ _{R v Singh [2015] NZHC 2369.}

¹⁶ Crimes Act 1961, s 173(1).

[67] That takes us to 19 years. However, the law also requires me to make some reduction because you pleaded guilty.

[68] The Crown case against you was overwhelming and a jury would have convicted you quickly. Accordingly, the sole advantage of your guilty pleas was to spare the family further distress and to avoid a trial.

[69] Counsel are agreed that you should receive a two year reduction to the MPI

for pleading guilty and that is what I shall give you.

Sentence

[70] Please stand Mr Scott.

[71] On the charge of murder, you are sentenced to life imprisonment and ordered to serve a minimum period of imprisonment of 17 years.

[72] On each charge of attempted murder, you are sentenced to 10 years’ imprisonment, to be served concurrently with the sentence and MPI on the murder charge.

[73] Stand down.

..................................................................

M Peters J