|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand |
Last Updated: 3 July 2018
|
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
|
|
CRI-2017-092-4397
[2018] NZHC 1602 |
|
THE QUEEN
|
|
v
|
|
TURIARANGI TAI
|
|
Hearing:
|
29 June 2018
|
|
Appearances:
|
M Williams and D Muratbegovic for the Crown P J Kaye and R Keam for the
Defendant
|
|
Judgment:
|
29 June 2018
|
SENTENCING NOTES OF MUIR J
M Williams and D Muratbegovic, Kayes Fletcher Walker, Crown Solicitors, Manukau P J Kaye, Barrister, Auckland
R Keam, Barrister, Auckland
R v TAI [2018] NZHC 1602 [29 June 2018]
Introduction
[1] Mr Turiarangi Tai appears for sentence on one charge of murder and one of unlawful possession of a firearm.1 The victim was Mr Tai’s former partner, Chozyn Koroheke. Mr Tai received a first strike warning on 10 May 2016. This is now his second strike offence, so Mr Tai faces the prospect of life imprisonment without parole, unless, given the circumstances of the offending and of Mr Tai, it would be manifestly unjust to impose that sentence.2
[2] I will begin by setting out the facts of the offending and summarising the victim impact statements. I will discuss the principles and purposes of sentencing and the approach I will undertake in relation to a second strike murder sentence. I will briefly outline the Crown and defence submissions. Then I will determine whether imposing a sentence of life imprisonment without parole would be manifestly unjust. I will address the firearms charge separately.
Facts of the Offending
[3] Mr Tai and the deceased, Chozyn, had been in a relationship for several months. They lived together (with intermittent periods of separation) at 230C Pakuranga Highway, which was a rental property they shared with three others: Naycn (Chozyn’s brother); Nacyn’s girlfriend, Samantha Douglas; and another flatmate. Mr Tai and Chozyn’s relationship was a dysfunctional and mistrustful one, characterised by frequent arguments, often brought on by mutual suspicions of unfaithfulness. At trial, there was significant evidence of Mr Tai’s escalating domestic violence towards Chozyn over the period of that relationship. This included an incident where he stabbed her in the leg. Mr Tai denied he was physically violent to her, but I am satisfied beyond reasonable doubt that a pattern of physical and emotional abuse was established.3 This culminated in the events on 4 April 2017.
[4] The night before, each had socialised separately at friends’ addresses and Mr Tai had stayed up all night consuming alcohol and methamphetamine. In the
2 Section 86E(2)(b).
3 Such conclusion also being consistent with the jury verdict.
morning, he collected Chozyn and arguments started about why he had not done so earlier. Again, there were underlying suspicions of unfaithfulness. They returned to the Pakuranga Highway address where Mr Tai brooded and argued. Later in the day, Mr Tai showed Nacyn (observed by Samantha) a 12-gauge shotgun which he had recently acquired. It was unloaded at the time.
[5] At some stage during the day Chozyn went shopping in Mr Tai’s car. On her return Mr Tai started packing his things into the vehicle intending to leave the house. As he was leaving a further verbal altercation occurred with Chozyn. She then re- joined Nacyn and Samantha in their bedroom, telling them that Mr Tai was unlikely to go far in any event because there was no gas in the car. Mr Tai drove up the driveway but returned almost immediately. In evidence, he said that he needed to get Chozyn’s EFTPOS card because the car was empty. He was clearly enraged by the fact that she had not refuelled it. Chozyn saw him returning with the gun and retreated again to the bedroom saying “he’s coming back in with a shotgun” or words to that effect. Nacyn tried to get her into a cupboard. Mr Tai entered the house and pushed the bedroom door open. He pointed the shotgun at Chozyn’s head and poked her in the cheek with it saying, words to the effect “do you think I am all shit”. He then lowered the gun to her abdomen and pulled the trigger. Forensic evidence established that there was no malfunction with the gun and that significant trigger pressure was required for it to be discharged. Chozyn suffered grave injuries from which she died before she could be hospitalised.
[6] Mr Tai appears to have immediately regretted his actions. He attempted CPR. He endeavoured to staunch the blood loss. He kept repeating “stay awake, stay with me”, “fight, Chozyn” and words to similar effect. Meanwhile, Nacyn took the gun from the room and hid it in a ceiling cavity. Both Samantha and Nacyn separately called 111.
[7] Soon, however, Mr Tai’s apparent remorse turned to self-interest. He told Samantha “you didn’t see anything”. He went to look for the gun. When he could not find it, he asked Nacyn where it was. Nacyn answered that it was “in the roof”. As the ambulance arrived, Mr Tai climbed onto the roof to look for the gun, presumably thinking Nacyn meant that the gun was on the roof and with the evident intention of
removing it from the scene. He could not find it. As the paramedics were treating Chozyn, he left in his car. Chozyn died shortly after being moved from the house into the waiting ambulance.
[8] Mr Tai was on the run for a little under two weeks. He eventually turned himself in on 16 April 2017 when his mother took him to the police station.
[9] This somewhat clinical summary does not do justice to the tragic circumstances in which Chozyn’s relatively short life ended. The case is yet another appalling commentary on the culture of violent domestic abuse which pervades parts of New Zealand society and which has previously been called a “scourge”4 on our community. Chozyn’s last minutes alive, before she lapsed into unconsciousness—as in part captured on her brother’s 111 call—speak to nothing less than the horror of what unfolded that day. That recording stands as testimony to the scourge I refer to.
Victim Impact Statements
[10] I have been provided with three victim impact statements by respectively, Chozyn’s father, Jason Koroheke; her aunt, Claudia Koroheke; and her brother, Nacyn Koroheke.
[11] Both Mr Koroheke and Claudia Koroheke have read their statements in court. That by Nacyn was read by Crown counsel.
[12] Mr Koroheke’s victim impact statement was among the most moving such statements I have heard as a Judge. His measured and dignified explanation of the impact of this senseless crime on his whānau will remain with me for many years as I am sure it will with the prosecution and defence teams and those members of the public present. I hope that Mr Tai also listened carefully to the human toll his actions continue to extract.
[13] Ms Koroheke spoke of her deep sadness for the hurt her family is experiencing, and particularly that of Nacyn. She lamented also the position of Chozyn’s two young
4 Solicitor-General v Hutchison [2018] NZCA 162 at [27].
children. She expressed her distress at seeing the bruises on Chozyn’s arms and face as she prepared her for her funeral, saying, movingly, that Chozyn came into this world perfect and left it broken and battered.
[14] Nacyn Koroheke, Chozyn’s brother, was, as I have observed, at her side at the time of the murder. He writes of how his whole life has changed now that he does not have a sister. He says that she was his best friend growing up, and how he could always turn to her when he needed someone. He says that he has frequent outbursts of anger when he thinks about what happened and that, almost on a daily basis, he has vivid nightmares about it which leave him sweating and awake for the rest of the night. He appears to have many of the symptoms of acute post-traumatic stress and says that the only way he has been able to seek relief has been often through drugs and alcohol. He writes that he would like to forgive Mr Tai, if only to help him in his own healing, but cannot as he has not heard Mr Tai express any remorse for what he has done.
[15] It is clear from what I have heard and read that this murder has had a profound impact on those close to Chozyn. Each has lost an obviously much loved and vivacious young woman whose attitude, intelligence and personal warmth will never be replaced in their lives. Two infant children have lost a mother who they will now never know.
Mr Tai’s personal circumstances
[16] Mr Tai is a 23-year-old of Māori descent. He was raised in a large family with ten siblings. He was himself a victim of sustained physical abuse by his father from about the age of five. His parents separated when he was around six or seven. From that point on he was in and out of foster care, where he experienced further abuse. His schooling was inconsistent and, as a result, he has limited literacy and numeracy skills. He has never been in employment. He began to offend early, with his first recorded conviction being in 2010. He has been in institutional care for the majority of his life. He has been associated with a gang, the “Crips”, in the past and may still have associations with that organisation. He has been a frequent user of alcohol and drugs, including cannabis and methamphetamine. His background and circumstances, and
particularly the abuse he himself suffered as a child, make him almost a paradigm of those who appear before this Court for serious crimes of violence.
[17] He has a lengthy criminal history, including several convictions for violent offending. One of these was in 2016 for wounding with intent to injure, for which he received a first strike warning.5 He also has several convictions for serious violence in a domestic or family context. Apart from that which I infer from his actions in the minutes immediately after the event, and a further letter received this morning which I will refer to subsequently, he has not expressed remorse for his offending at any stage.
[18] He presents today as a recidivist, violent and somewhat cowardly thug, but one fashioned by his background and, at 23, still a comparatively young man.
Psychiatric Report
[19] I have received and considered a detailed s 38 psychiatric report from Waitemata District Health Board Consultant Psychiatrist Dr Krishna Pillai.6 She describes how Mr Tai has poor impulse control and consistent patterns of irritability and aggression, leading to recurrent fights and incidents of violence in his past. He has a reckless disregard, she says, for the safety of others, and a lack of respect for lawful behaviour. She notes that these characteristics are consistent with a diagnosis of antisocial personality disorder. But she concludes Mr Tai does not have a mental disorder for the purposes of the Mental Health (Compulsory Assessment and Treatment) Act 192. She says that there are several indicators that Mr Tai will be violent in the future: his past history, problems with substance abuse, his antisocial personality disorder, and his negative attitudes and lack of insight towards his past offending. But she also describes how his inevitably lengthy prison sentence will give him an opportunity for participation in a number of specialist programmes and that there is evidence that rehabilitation strategies can be successful in reducing violent behaviour in high-risk individuals. She notes that Mr Tai has expressed a willingness to participate in such programmes as are available. Further, she points out that the
5 Sentencing Act 2002, s 86B(1)(b).
6 Criminal Procedure (Mentally Impaired Persons Act) 2003, s 38.
literature on recidivism indicates that the risk of reoffending decreases with age. She concludes by noting that, while Mr Tai is at high risk of re-offending currently, there is the potential, in her view, for his eventual rehabilitation.
Principles and purposes of sentencing
[20] In sentencing Mr Tai, I must have regard to the purposes and principles of sentencing.7 In the context of this most serious of all offending, the most relevant purposes are to hold him accountable for the harm he has caused, to promote a sense of responsibility for that harm, to denounce and deter such conduct and, given his violent history and the nature of this offence, to protect the community from him.
[21] I must also bear in mind the general desirability of consistency in sentences for similar crimes and the need to take into account the gravity of the offending and Mr Tai’s culpability. I am obliged also to consider any of his personal circumstances that would mean a sentence, which would otherwise be appropriate, would be disproportionately severe, and the mandate in s 8(g) of the Sentencing Act that I must impose the least restrictive penalty in all the circumstances of the case.
Approach to sentencing on a second strike murder.
[22] The three strikes regime was introduced into the Sentencing Act in 2010.8 The purpose of the regime was to deny parole to certain repeat offenders and offenders guilty of the worst murders, and impose maximum terms of imprisonment on persistent repeat offenders who repeatedly commit serious violent offences.9 Mr Tai has been found guilty of murder having previously received a first strike warning for another serious offence. Under the three strikes regime, I must, therefore, impose a sentence of life imprisonment.10 I must also order that he serve that sentence without the possibility of parole, unless I am satisfied that it would be manifestly unjust to do so.11 If I am satisfied that this would be manifestly unjust then, pursuant to s 103 of the Sentencing Act, I must still impose a minimum period of imprisonment of at least
7 Sentencing Act 2002, ss 7–8.
8 Sentencing and Parole Reform Act 2010, s 6(1).
9 Section 3.
10 Sentencing Act 2002, s 86E(2)(a).
11 Section 86E(2)(b).
10 years, and it must be sufficient to satisfy the purposes I have described above.12 Further, I must sentence Mr Tai to a minimum period of 17 years if I consider that any of the factors in s 104 of the Sentencing Act are engaged.
[23] I will follow the process set out by the Court of Appeal for a second or third strike murder.13 Firstly, I must recognise that the starting point for a sentence for a second strike murder is presumed to be life imprisonment without parole, as I have said above. Secondly, I will determine what the appropriate sentence would be in terms of the standard application of the provisions in the Sentencing Act, namely ss 102, 103 and 104. Finally, I must determine whether it would, given Mr Tai’s circumstances and the circumstances of the offending, be manifestly unjust, that is— and I quote from the relevant Court of Appeal authority—“grossly disproportionate” for him to serve his entire life in prison without parole.14 I note that a case for manifest injustice must be clear and convincing, although need not be rare and exceptional.15
[24] I turn now to determining what the appropriate sentence would be, but for s 86E and applying ss 102–104. But, before doing so, I will briefly summarise the submissions of the Crown and the defence. Both sides are in agreement that the process I should follow is that which I have outlined above.
Crown submissions
[25] The Crown submits that the following are aggravating features of the offending: the use of a weapon, the fact the gun was fired at close range at a vital area of the body, the surrounding context of domestic violence, and the vulnerability of the victim. They also say Chozyn was “particularly vulnerable” by reason of the ongoing violence and controlling behaviour that she had been subjected to. It argues that, while the offending was not planned, neither was it impulsive—that Mr Tai consciously made the decision to turn around after he had left the house, come back with the loaded shotgun and entered the room with the intent to fire it. The Crown submits that there are no mitigating features of the offending. It says any remorse he displayed in the
12 Sections 103(1)-(2).
13 R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [109]–[110].
14 At [83].
15 At [108].
moments after the incident is offset by his actions after the paramedics arrived. Instead of waiting to see if she would survive, he sought, unsuccessfully, to locate his weapon and then went on the run for two weeks.
[26] The Crown submits these aggravating factors warrant a minimum period of imprisonment of 12 years and six months, before considering Mr Tai’s personal circumstances. It then submits that Mr Tai’s previous history of violent offending, particularly in a domestic context, warrants an uplift of 18 months to that minimum period, making for an adjusted starting point for the minimum period of imprisonment of 14 years. The Crown argues, however, that s 104 applies, so a minimum period of imprisonment of 17 years should be imposed. It says this is because two of the factors in s 104 are engaged. Firstly, that Chozyn was “particularly vulnerable”16 and, secondly, because the extent of the surrounding violence amounts to an “exceptional circumstance”.17 I will separately and later address its arguments on whether life imprisonment without parole would be manifestly unjust.
Defence submissions
[27] The defence accepts that a minimum non-parole period of 14 years would be in range if ss 104 or 86E do not apply, as I will refer to in greater detail shortly. Mr Kaye acknowledges that s 104 could well apply on account of Chozyn’s particular vulnerability.
Appropriate minimum term of imprisonment under s 103
[28] I will first determine what an appropriate minimum period of imprisonment would be under s 103. Then I will examine whether s 104 applies.
[29] In setting a minimum term under s 103, I must decide what term, if any, above the 10-year minimum would be sufficient to satisfy the purposes of sentencing, which I have identified above, considering the aggravating and mitigating features of the offending. In my view, the aggravating features of the offending are, firstly, Chozyn’s vulnerability on account of the history of domestic violence which predicated the
16 Sentencing Act 2002, s 104(1)(g).
17 Section 104(1)(i).
offending and I detail in a footnote to these sentencing notes.18 Secondly, the use of a weapon and, thirdly, the vulnerable part of the body at which the gun was discharged, effectively at point blank range.
[30] I do not consider there was significant premeditation—in that there was no lengthy or calculated planning—but neither do I regard the offending as impulsive. Mr Tai deliberately came back down the driveway and, I am satisfied, entered the house with the loaded shotgun. He had time to consider his actions.
[31] In view of these aggravating factors, I consider a starting point in terms of a minimum non-parole period of 12 years and six months would be appropriate. In doing so I have considered a number of cases, which I will identify by footnote.19 However, an additional aggravating feature not present in any of those cases is the extent and duration of the surrounding violence to which Chozyn was subjected in the days, weeks and months leading up to her death. I accept, in that respect, the Crown’s submission that her death was the product of the course of behaviour the defendant had embarked on months earlier, rather than an aberration within the context of what it terms “normal behaviour within a relationship”.
[32] To that starting point of 12 years and six months, I would add 18 months’ imprisonment to reflect Mr Tai’s previous convictions for violence, which include multiple charges of common assault; two of injuring with intent to injure; one of male assaults female; and, significantly, the first strike offence, wounding with intent to injure, for which he was convicted in January 2016.
[33] I do not consider any discount is warranted for personal mitigating features nor, responsibly in my view, does Mr Kaye contend for such. While youth is frequently recognised as a mitigating factor, with strong psychological and medical support for that discount, Mr Tai—who was 22 at the time of the offending—was at the upper end of the range where such could even be considered. Moreover, as the
18 They are, in my view, accurately summarised in the Crown’s submissions and include threats to stab and kill her, assault with a metal pole, stabbing her in the thigh, a sustained assault approximately a week before her death, hitting her on the head with a rock used as a doorstop and multiple other assaults witnessed by friends and flatmates.
19 R v Hall [2017] NZHC 410; R v Fennell HC Wellington CRI-2007-085-238, 13 June 2008; R v Meads HC Hamilton CRI-2009-019-8828, 31 March 2011.
Court of Appeal has emphasised, a realistic assessment, balancing all the factors of offending and offender, is required in each case.20 Mr Tai has effectively been either imprisoned or subject to some other form of sentence in respect of violent offending since he turned 17. Despite multiple non-custodial sentences with rehabilitative components, he has gone on to reoffend violently. He is, in summary, a seasoned violent offender for whom I consider no such discount appropriate.
[34] I also do not regard Mr Tai’s spontaneous remorse as a mitigating factor when balanced against his subsequent implicit threat to Samantha (“you didn’t see anything”); his subsequent attempts to locate the gun (which I am satisfied he intended to remove if he had found it); his decision to decamp before knowing whether Chozyn lived or died; and his subsequent period on the run. These are not the actions of a person genuinely remorseful for what they have done. That conclusion is reinforced by the pre-sentence reports the Court has received.
[35] Nor do I regard the letter Mr Tai has supplied this morning as qualifying for any discount. It is late. It maintains the position that the death was accidental and although apparently sincere in its apology to all affected by Chozyn’s death, it cannot qualify as the exceptional remorse that the authorities recognise. Again, Mr Kaye does not contend otherwise.
[36] As Mr Tai did not plead guilty, no other discounts are therefore available to me.
[37] This brings me to a provisional minimum period of imprisonment of 14 years’ imprisonment, before I consider s 104 or the effect of his existing strike offence. Again responsibly, in my view, Mr Kaye’s submission recognised this as being within range.
Is section 104 engaged?
[38] The Crown submits s 104 is engaged because Chozyn was “particularly vulnerable” as a result of the history of the serious domestic violence which she
20 Pouwhare v R [2016] NZCA 268, (2010) 24 CRNZ 868 at [96]- [98].
endured at the hand of Mr Tai. Alternatively, and relying on essentially the same history, it says that there were “other exceptional circumstances” within the terms of the section. Both are factors that, if present, trigger s 104, requiring me to impose a minimum period of imprisonment of 17 years.
[39] The Crown cites the Court of Appeal’s recent reference, in terms I have already identified, to the “scourge” that family violence has become in New Zealand society— something which regrettably the Courts are almost daily reminded of—and the Court of Appeal’s recognition in the same case that whenever violence arises in a domestic context vulnerability will inevitably be an aggravating factor..21 The Crown says that increasingly the Courts are recognising the “unique and deleterious effects of domestic violence on a victim’s ability effectively to defend themselves, beyond the inherent physical disadvantages that might be conferred by size or gender alone”. It submits the escalating history of violence in the relationship had the effect of isolating Chozyn from her family and making her reluctant to discuss her abuse or report it to the authorities, let alone confront Mr Tai. It says this made her “particularly vulnerable”. It acknowledges, however, that the Court of Appeal’s reference to vulnerability being an inevitable feature of domestic violence was made in the context of s 9 aggravating factors and is not of itself specific authority for the submission that it advances.
[40] The “particularly vulnerable” threshold is a high one. It is most often restricted to cases involving the murder of infants, the elderly, people with disabilities, or people who were physically unable to defend themselves; for example, by reason of unconsciousness at the time of the fatal assault. In his discussion, in an article entitled “Murder Most Foul: An Analysis of the Court’s Approach to s 104 of the Sentencing Act 2002”, Mr Tim Conder notes that, despite being expressed in substantially identical terms, the standard under s 104 is stricter than that under s 9(g) of the Act and that the cases establish that a victim should have an identifiable impediment, either by virtue of age or disability, that makes them unable to defend against the attack.22 The author further notes that such narrower interpretation is consistent with comments in a relevant Select Committee Report.
21 Solicitor-General v Hutchinson [2018] NZCA 162 at [26]–[27].
[41] Chozyn was an otherwise healthy 22-year-old woman. She had regular contact with loyal friends and family, so she was not especially socially isolated. Her brother lived with her. She had confided in her supportive mother at least some of what had been occurring at the hand of Mr Tai. And her father, Mr Koroheke, had in fact challenged Mr Tai specifically about it. As her Aunt described her, in her victim impact statement, she was in many ways a “strong, intelligent, independent, beautiful Māori wahine”.
[42] But the serial abuse to which she had been subjected and the level of control administered at the end of Mr Tai’s fist, knee, on one occasion a knife, on another a rock and further at the end of a steel pole, had reduced her to a point where, as Mr Koroheke said this morning, I am satisfied “the courage had been beaten out of her”. And I must take into account the Court of Appeal’s observation in Hutchison that the family unit involves a social contract of mutual care and nurture and that one cannot realistically or effectively lock the door against a co-occupant,23 particularly, I would add, one armed with a gun.
[43] Chozyn was young, just 22 years old at the time she died. She had confided in friends that she wanted to do something about her situation but could not. The extent of her vulnerability was clearly demonstrated when, at the time Mr Koroheke challenged Mr Tai, she did everything she could to excuse Mr Tai’s conduct, effectively blaming herself. And, of course, her vulnerability was compounded by the particular circumstances of the offending. She found herself backed into the corner of a room by a loaded 12-guage shot gun which was discharged as she tried to hide in a closet.
[44] It is against this background that, in my view, Mr Kaye again very responsibly acknowledges that Chozyn could indeed be described as “particularly vulnerable” at the time of the offending, so engaging s 104. In that event, both Crown and defence accept that a 17-year minimum non-parole period would be appropriate, a conclusion with which I agree.
23 Solicitor-General v Hutchison [2018] NZCA 162 at [27].
[45] Having said that I do not need to address the other “exceptional circumstance” factor on which the Crown also relies. This provision in s 104 is rarely invoked. It allows for any unforeseen circumstances that would justify a case being considered to be in the most serious category of murders. Examples of “exceptional circumstance” recognised in the cases include where there has been post-mortem dismemberment,24 or where the murder followed rape.25 Although I accept the previous violence Mr Tai inflicted on Chozyn was serious, commentary suggests that the Courts should be hesitant to conclude that separate offending, earlier in time, triggers the exceptional circumstance factor.26 And regrettably in this country there cannot be considered anything “exceptional” per se about death at the hand of a domestic partner and in the context of longstanding abuse. I would not have regarded that subsection as engaged.
[46] However, having regard to the findings I have made, the minimum term of imprisonment I would impose, but for the three strike’s regime, is 17 years.
Would life imprisonment without parole be “manifestly unjust”?
[47] As the Court of Appeal has recognised, the question I am obliged to ask is whether it would, in what is necessarily an intensely fact specific inquiry, be grossly disproportionate, having regard to all the circumstances of the offending and the offender, for Mr Tai to be subject to a period of life imprisonment with no possibility ever of parole.27
[48] I am most grateful to the Crown and defence for their discussion of the multiple murder cases already decided under the three strikes regime. I do not consider it necessary to engage in a detailed review of the case law, which was thoroughly canvassed by Paul Davison J in the most recent of these to come before the Court, R v Davis.28
24 R v Gosnell [2013] NZHC 1313.
25 R v Ellis HC Auckland CRI-2010-044-4912, 7 December 2011.
27 R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [110].
28 R v Davis [2018] NZHC 1162.
[49] Features which have in these cases engaged the ‘manifestly unjust’ exception have included:
(a) the minor nature of the offender’s first strike offence;29
(b) serious mental health issues;30
(c) genuine remorse;31 and
(d) the possibility of rehabilitation.32
[50] In addition, the fact that this is a second strike offence, as opposed to a third- strike, is relevant.33
[51] However, a common and powerful theme running through all of the cases is to focus on the discrepancy between the period of incarceration a whole of life sentence could be expected to impose and that which would be imposed apart from the strike regime.
[52] In R v Davis, Davison J observed:34
[69] ... The discrepancy between a life sentence requiring that you serve a minimum of 14 years’ imprisonment, and one without parole which could result in your imprisonment for approximately 50 years, is very significant. On the basis of your life expectancy, a life sentence without parole would be in excess of three times longer than the sentence you would receive but for the three-strikes regime. I consider that such a sentence would be grossly disproportionate to a sentence that would be imposed where the provisions of s 86E were not engaged.
[53] The Crown submits Mr Tai has not expressed any remorse, has no history of serious mental illness, and no verifiable history of self-harm. While acknowledging that the murder was not among the worst examples of that invariably callous and brutal
29 R v Harrison [2014] NZHC 2705.
30 R v Turner [2015] NZHC 189; R v Kingi [2016] NZHC 139; R v Herkt [2016] NZHC 284.
31 R v Puna [2018] NZHC 79;
32 R v Davis [2018] NZHC 1162.
33 R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [108].
crime, it says, therefore, that it is open to the Court to impose a sentence of life imprisonment without parole.
[54] The defence submits that, at Mr Tai’s current age, life without the possibility of parole would, having regard to average New Zealand male life expectancy, equate potentially to a sentence of 55 years’ imprisonment, which it says is wholly disproportionate to the sentence he would have otherwise received and effectively writes him off as a person incapable ever of rehabilitation.
[55] Like several judges before me, I have found this a difficult balancing exercise. I agree with the Crown that many of the factors that have influenced previous decisions simply cannot be called on in Mr Tai’s aid.
[56] Ultimately, however, I have decided that it would be manifestly unjust for me to sentence him to life imprisonment without parole. The following factors inform my conclusion:
(a) He is being sentenced on a second and not a third strike.
(b) As the Crown accepts, the case does not fall within the worst category of murder. In R v Davis, in which Davison J likewise set a fixed non- parole term (in that case on a third strike), the facts were, in my view, appreciably worse.
(c) The first strike warning, although for a serious crime (wounding with intent), incurred a penalty of nine months’ imprisonment only which recognises that it likewise was not the most serious offending of its kind.
(d) Significantly, Mr Tai is now only 23 years of age so that life without parole could mean he is imprisoned for a period approximately four times what would otherwise be the case.
(e) As the s 38 psychiatric report notes, the literature on violent and general recidivism indicates that re-offending decreases with age. Mr Tai will
be 40 by the time he will be eligible to seek parole. He has indicated a willingness to participate in any programmes which may assist his rehabilitation. Although at present he presents as at high risk of violent re-offending and although it may take something of a personal epiphany (of which there are few present signs) for that risk adequately to abate, I am not prepared to dismiss any prospect of rehabilitation and to say, effectively, that this man is beyond redemption. In recognising this glimmer of hope I am significantly influenced by Mr Tai’s response in the few minutes after he so brutally gunned down his partner. This evidences to me that there is at least a spark of humanity left in him. Whether a Parole Board is ever prepared to grant him parole will largely depend on whether that spark can be nurtured to create anything more.
[57] This brings me to a final point. The minimum period of imprisonment I intend to impose is within the context of what is a life sentence. At the expiration of that period, Mr Tai may apply for release on parole but that result is far from automatic. The Parole Board will only grant him parole if it is satisfied he does not pose a risk to the public. And, even if he is released, he is liable to be recalled to prison if he breaches his parole terms or reoffends. He is, therefore, subject to the sentence I impose today for the rest of his natural life.
Unlawful possession of a firearm
[58] On the charge of unlawful possession of a firearm, I consider a starting point of six months’ imprisonment is appropriate. I note that the Crown accepts that as the case. I discount that to five months on account of Mr Tai’s late guilty plea. Such sentence is to be served concurrently.
Conclusion
[59] Mr Tai, would you now please stand.
[60] Mr Tai on the charge of murder, I sentence you to life imprisonment, with a minimum period of imprisonment of 17 years.
[61] On the charge of unlawful possession of a firearm, I sentence you to five months’ imprisonment, to be served concurrently.
Second strike warning
[62] Given your conviction for murder, I must also give you, what is in your case, a second strike warning.
[63] This is now your final warning. I will explain the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences, which lists these ‘serious violent offences’.
(a) If you are convicted of any serious violent offence other than murder or manslaughter, then you will be sentenced to the maximum term of imprisonment for each offence. That will be served without parole or early release unless it would be manifestly unjust.
(b) If you are convicted of manslaughter committed after this warning, then you will be sentenced to imprisonment for life. The Judge must order you to serve at least 20 years’ imprisonment unless the Judge considers it would be manifestly unjust to do so, in which case the Judge must order you to serve a minimum of at least 10 years’ imprisonment.
(c) If you are convicted of murder after this warning:
(i) you must be sentenced to imprisonment for life. The Judge must order you to serve this sentence without parole unless it would be manifestly unjust to do so;
(ii) if the Judge finds that it is manifestly unjust to do so then the Judge must impose a minimum period of imprisonment of at least 20 years unless that would be manifestly unjust, in which case the Judge must sentence you to a different minimum period of imprisonment.
(d) If you are sentenced to preventive detention you must serve the maximum term of imprisonment of the most serious offence you are convicted of unless a Judge considers that would be manifestly unjust.
[64] Stand down.
Addendum35
[65] Mr Williams identifies that, in discussing the application of s 104 of the Sentencing Act, my sentencing notes inadvertently failed to address what is described in R v Harrison as the second limb of the test.36 That is whether a minimum term of imprisonment of 17 years would itself be manifestly unjust. Mr Kaye does not contend that a sentence of that duration would be manifestly unjust and I find that it would not be, in particular, having regard to the component of vulnerability which I have identified and the circumstances of Chozyn’s death.
Muir J
35 Mr Tai was recalled from the cells for the purpose.
36 R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [41]- [42].
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2018/1602.html