R v Yad-Elohim [2018] NZHC 2494 (20 September 2018)

Last Updated: 25 October 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2017-004-9879 [2018] NZHC 2494

THE QUEEN

v

_{GABRIEL YAD-ELOHIM}

Hearing:	20 September 2018
Appearances:	K A Lummis for Crown M E Goodwin & A M M Ives for Defendant
Judgment:	20 September 2018

_{SENTENCING NOTES OF VAN BOHEMEN J}

Solicitors:

Crown Solicitor, Auckland

Counsel:

A M M Ives, Auckland

M Goodwin, Auckland

R v YAD-ELOHIM [2018] NZHC 2494 [20 September 2018]

[1] Gabriel Yad-Elohim, you appear for sentence having been found guilty of the murder of Michael Mulholland on the evening of 26 September 2017. I acknowledge again the presence of Mr Mulholland’s family in Court today and I thank

Mr Mulholland’s daughter for her victim impact statement which I am taking into account.

[2] There was never any doubt that you killed Mr Mulholland. The assault was captured on CCTV footage at the scene. You went to Mr Mulholland’s apartment building with Ms Uru, with whom you had a slight acquaintance and whom you had approached on the street to buy drugs. Ms Uru, who was known to Mr Mulholland, persuaded you to hand over $200 and to stay on the landing below Mr Mulholland’s apartment while she bought the drugs for you. You say Ms Uru had told you

Mr Mulholland had gang associations. You remained on the landing awaiting

Ms Uru’s return. But she did not return. She had climbed over the balcony at

Mr Mulholland’s apartment, clambered back to the ground and ran away with your money. As Ms Uru admitted in evidence, that had always been her plan.

[3] After a while, you became suspicious and went up to Mr Mulholland’s apartment and knocked on the door. Mr Mulholland opened the door and you spoke briefly with him. It appears he denied any knowledge of Ms Uru. You then grabbed Mr Mulholland, headbutted him twice, dragged him out of the doorway onto the landing, and punched him in the head. Mr Mulholland fell to the ground beside the wall, apparently already unconscious. He remained on the floor inert through the attack that followed.

[4] You attacked Mr Mulholland round the head, hitting him repeatedly with your elbow and fists, before kicking and stomping on his head and body for around four minutes. At one point, you left the landing and walked down the stairwell before returning and kicking Mr Mulholland about the head, body and legs for a further three minutes. It is estimated that you inflicted approximately 90 blows on Mr Mulholland in the course of this sustained attack. Mr Mulholland died as a result of the blunt force trauma you inflicted to his head, face and abdomen. You were arrested on Karangahape Road the following day by police officers who recognised you from the CCTV footage of the attack.

[5] It is accepted that you suffer from a severe mental disorder, chronic schizophrenia, which may have been exacerbated by your having taken methamphetamine some time earlier as you have since acknowledged.

[6] As counsel have stated, the key issue at trial was whether you were insane at the time and should be found not guilty by reason of insanity. Expert psychiatric evidence was called by the Crown and on your behalf. The experts agreed that you were psychotic and suffering from a disease of the mind at the time of the attack on Mr Mulholland and that you continued to display active psychotic symptoms after your arrest and subsequently. They also agreed that your schizophrenia is a continuing condition. The experts did not agree, however, on whether the disease had rendered you incapable of understanding the nature and morality of your actions.

[7] After considering the evidence, the jury found you guilty of murder. In reaching that finding, the jury must have concluded that you were not, by reason of your illness, rendered incapable of understanding the nature and quality of your actions or of knowing that your actions were morally wrong, having regard to the commonly accepted standards of right and wrong.

Personal circumstances

[8] I have had read the pre-sentence report from the Department of Corrections and the report provided by Dr Krishna Pillai under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. I have also read the letter from Dr Matthew McKinnon, under whose care you have been in the Mason Clinic for the last year.

[9] The pre-sentence report indicates that you had a turbulent upbringing in the Republic of Korea and Japan before arriving in New Zealand at the age of ten. You were involved in fighting at high school because you say people insulted you. You left high school at 16 years old. You successfully completed a Diploma of Business and worked in a number of casual jobs in the hospitality industry. You studied for a year of University before leaving in 2008 when you began using cannabis and methamphetamine.

[10] Your first contact with mental health services came in 2009 when you were admitted to the mental health unit at Auckland City Hospital after assaulting another young Korean man. That did not lead to a conviction. You were assessed as being psychotic with delusions of persecution and misidentification.

[11] You went to live in Korea in 2009 and you say you worked there as a kickboxing coach until 2012. When you moved back to New Zealand you joined a Church and gained employment as a casual labourer but that your drug use and financial position worsened.

[12] You changed your name from your given name to Gabriel Yad-Elohim, which you understand to mean Messenger of God. By then, it appears you had become isolated from your family and your history. You claimed that your mother, who is Korean, is your step mother, that your birth mother is Japanese and that you have Japanese citizenship. It was only after your mother made contact in the course of your trial that it was learned that the woman you say is your stepmother is your biological mother and that you are of Korean rather than Japanese descent.

[13] You were admitted to the Auckland Hospital mental health unit again in 2015. You were diagnosed with schizophrenia and discharged with intramuscular antipsychotic medication. Your GP referred you to mental health services in March

2016 because of your history of psychosis. In August 2016 in Australia, while you were admitted to a mental health hospital, you punched a nurse in the head and were convicted of assault. Subsequently, you travelled to Canada where you also encountered difficulties. You were voluntarily deported back New Zealand, arriving on 14 September 2017.

[14] On 17 September 2017, you went on your own initiative to the Auckland City Hospital and were admitted to Te Whetu Tawera, the acute mental health unit, under the Mental Health (Compulsory Assessment and Treatment) Act 1992. You reported hearing auditory hallucinations of Satan and another voice telling you to avoid Africans, Koreans and other ethnicities. You reported urges to harm such people. You had not slept for two days and exhibited thought disorder and were diagnosed with a relapse of chronic schizophrenia. You remained an inpatient at Te Whetu Tawera for

approximately one week. During this time, your general level of self-care and health improved as you came off the effects of methamphetamine and were placed on antipsychotic medication.

[15] By the end of that week, Te Whetu Taweru had assessed that it was appropriate to discharge you but was unable to find adequate temporary accommodation. It was decided you should remain in the hospital until the following Monday, 25 September

2017. On Saturday 23 September 2017, however, there was increased pressure on the unit’s capacity and the decision was made to discharge you initially to a respite care facility. You were discharged that day with a two-week supply of Olanzapine tablets to be orally self-administered to manage your condition. You stayed two nights at the respite care facility and on Monday 25 September 2017, with mental health services assistance, you checked into longer term accommodation. However, you stayed only one night at that accommodation and then checked into the City Backpackers on Tuesday 26 September 2017. That evening you killed Mr Mulholland. It was learned after your arrest that you had stopped taking your medication.

[16] After your arrest, you were assessed by emergency psychiatric services and administered oral antipsychotic medication. While remanded in custody you were in a state of psychosis and admitted to the Mason Clinic on 14 November 2017. Because of the severity and chronicity of your psychosis, you were treated with medication for severe and treatment resistant schizophrenia. Over the ensuing months in the Mason Clinic your condition gradually stabilised, although you continued to describe auditory hallucinations for several months. Your clinical condition improved to the point where you were found to be fit to stand trial.

[17] Overall, your history is of a young man who has struggled to adjust to coming to New Zealand at an early age, struggled to cope with life at school and after school, has become dependent on drugs, alienated from your family and increasingly delusional to the point where you do not acknowledge your Korean heritage or even your own mother. Until the tragic events of 26 September last year, your interactions with mental health services succeeded in stabilising your immediate condition but did not provide for your longer-term care. You became lost to attempted follow ups and slipped between the cracks. Perhaps as a consequence, the extent of your illness and

the fact that your psychosis was not only brought on by methamphetamine use was not fully appreciated. It appears that it was only after you killed Mr Mulholland that you received an extended period of clinical treatment.

[18] While it is not for this Court to direct, I consider a thorough examination should be undertaken of the circumstances that led to your release from Te Whetu Tawera. I say that notwithstanding the review that has already been carried out of your discharge. I make no criticism of the management and staff of Te Whetu Tawera. They operate under difficult circumstances with finite resources. Nonetheless, the fact that you brutally killed a defenceless older man days after you were assessed as suitable for release into the community warrants considered external examination. It is particularly concerning that your condition has since been found to be considerably more serious than was understood at the time of your discharge from Te Whetu Tawera.

[19] Dr Pillai confirms your diagnosis is paranoid schizophrenia and methamphetamine dependence. During treatment, your psychotic symptoms have persisted in a way that is consistent with chronic schizophrenia, rather than drug- induced psychosis. The typical features of your illness are auditory hallucination, delusions and thought disorder. These features have largely resolved during your treatment since the offending.

[20] However, your psychosis is deep-seated. Dr McKinnon has reported that you have improved substantially but that the true extent of some of your delusional thinking only became known after your mother explained your true history, which you still do not acknowledge. Your persistent abnormal beliefs are, in Dr Pillai’s opinion, evidence of continuing chronic delusions.

[21] Notwithstanding that, Dr Pillai’s view is that your psychosis is currently being optimally treated and is in partial remission. You have shown some insight into your condition and you accept that your medication has been effective in managing some of the problems brought about by mental illness. Serial blood tests indicate you are consistently taking your oral medication. You have been not taken or been able to take methamphetamine for more than a year and you have exhibited no signs of aggression

or violence for more than six months. You say you have not heard voices for some five months.

[22] For these reasons Dr Pillai does not recommend that you be detained as a special patient in a hospital. Dr Pillai considers that if you are imprisoned you will continue to receive the treatment you need. Dr McKinnon says that preparations have been made for your discharge and that, if sentenced to imprisonment, your care would be handed over to the Mason Clinic Prison Team.

Approach to sentencing

[23] Under s 102 of the Sentencing Act 2002, murder carries a mandatory sentence of life imprisonment unless it would be manifestly unjust to impose that sentence. Under s 103(2) of the Act, if a life sentence is appropriate, I must also impose a minimum period of imprisonment of not less than 10 years.¹

[24] The minimum period of imprisonment is the length of time you will spend in prison until you are eligible for parole. I would like to repeat that, the minimum period of imprisonment is the length of time you will spend in prison until you are eligible for parole. It is not a cap on your sentence. The Parole Board will decide your ultimate release date. If you are granted parole, you may remain in the community only for so long as you comply with your parole conditions and do not reoffend, otherwise you could be recalled to prison at any time to complete your life sentence.

[25] If any of the prescribed circumstances in s 104 of Act applies to your case, I am required to impose a minimum term of at least 17 years imprisonment unless it would be manifestly unjust to do so.²

[26] If s 104 applies, I should first assess what the appropriate minimum term of imprisonment should be, having regard to your culpability, the seriousness of your offending having regard to the standard range of murders, and all the aggravating and

¹ Sentencing Act 2002, s 103(2).

² R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA) at [52]- [54]. See also R v Cui HC Auckland CRI-2006-

004-18412, 6 December 2007 at [26]-[27].

mitigating factors of your offending, in order to decide what minimum term of imprisonment is justified in all the circumstances, which include your circumstances.³

[27] If I consider a minimum term of 17 years or more would be appropriate, I must impose that minimum term. If I consider the appropriate minimum term is less than

17 years, I must then consider whether it would be manifestly unjust to impose a minimum term of at least 17 years.⁴

[28] The purposes of sentencing you include holding you accountable for the harm you have done to the victims, including Mr Mulholland’s family, and the community, promote in you responsibility and acknowledgment of that harm, protect the community and assist in your rehabilitation and reintegration. The relevant principles of sentencing require me to take into account the gravity of your offending, including your culpability for your actions, the seriousness of your offending, and the effect of the offending on your victims. The Sentencing Act requires me to impose the least restrictive outcome that is appropriate in the circumstances and to take into account any particular circumstances relating to you that mean that any particular sentence would be disproportionately severe, and your personal circumstances when sentencing you with a rehabilitative purpose.

Life imprisonment

[29] I must first consider whether it would be manifestly unjust to impose a sentence of life imprisonment.

[30] It has been established by the Court of Appeal that the presumption of life imprisonment will only be displaced in “rare” and “exceptional” cases,⁵ reflecting the sanctity of human life and society’s condemnation of those who unlawfully take it.⁶

While the Court of Appeal has recently recognised that the wording of s 102(1) of the

Sentencing Act reflects Parliament's acceptance that the power vested in a High Court judge should not be unduly proscribed and allows all circumstances to be taken into

³ R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA) at [52] and [53].

⁴ At [54].

5. R v Rapira [2003] NZCA 217; [2003] 3 NZLR 794 (CA); R v Smail [2006] NZCA 253; [2007] 1 NZLR 411 (CA); R v Wihongi [2011] NZCA 592; Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369.

⁶ R v Cunnard [2014] NZCA 138 at [16].

account so long as they relate to the offence or the offender,⁷ it is common ground between the Crown and your counsel that departure from the presumption of life imprisonment is not appropriate in your circumstances.

[31] I agree that, given the gravity and severity of your offending and the public interest in allowing the Parole Board and, if appropriate, the mental health services to determine when you are fit and well enough to re-enter the community, it is not manifestly unjust to sentence you to life imprisonment. I reach that conclusion notwithstanding the question of your mental state.

Minimum period of imprisonment

[32] Because I consider life imprisonment to be appropriate, the minimum period of imprisonment must be no less than 10 years. The minimum period must also satisfy the purposes of holding you accountable for the harm done to your victims and the community by your offending, denouncing your conduct, deterring you or other persons from committing the same or similar offence, and protecting the community from you.⁸

[33] Accordingly, I must now decide whether s 104 applies. If it does apply, I must determine the sentence that would otherwise be imposed and then decide whether, in comparison with that term, a 17 year term as required by s 104 would be manifestly unjust.⁹

Does s 104 apply?

[34] Ms Lummis for the Crown has submitted that the circumstances which apply under s 104(1) are:

(a) Under s 104(1)(e), that the murder was committed with a high level of brutality; and

_{(b) Under s 104(1)(g), that Mr Mulholland was particularly vulnerable.}

⁷ R v Cunnard [2014] NZCA 138 at [15].

⁸ Sentencing Act, s 103(2).

⁹ R v Turner [2015] NZHC 189 at [51].

[35] Your counsel, Mr Goodwin, has acknowledged that, given the CCTV evidence, the offending can fairly be described as committed with a high level of brutality.

Mr Goodwin has suggested this assessment may be subject to a finding of the mental health impacts on your culpability. Mr Goodwin cited R v Gottermeyer where the Court of Appeal accepted that the circumstances of the offender are relevant at the stage of considering whether s 104 applies. However, the Court in that case also accepted that where sanity is not in issue, an offender’s mental health problems do not prevent s 104(1)(e) from being engaged.¹⁰

[36] I accept that the murder in this case was committed with a high degree of brutality, given that over two distinct periods, each lasting several minutes, you kicked or stomped on Mr Mulholland’s head a total of some 60 times as well as delivering some 30 punches to the head and kicks to the body.¹¹ While the capacity for callousness as “insensitive and cruel disregard for others” may be questioned given your mental state, the duration and the severity of the beating is “savage violence” that engages the brutality aspect of s 104(1)(e).¹² While I accept that your psychosis at the time clouded your understanding of your actions - which bears on your culpability - this attack must still be considered brutal. Accordingly, I am satisfied that s 104(1)(e) applies.

[37] Ms Lummis also submitted that Mr Mulholland was “relatively vulnerable” due to his age of 69 years when measured against your strength and your apparent martial arts training. Mr Goodwin disputes this and says that because Mr Mulholland was not frail or elderly, he should not be considered as “particularly vulnerable” ¹³ in terms of the section. I agree. However, that is not the end of the matter. The Crown has also submitted that Mr Mulholland was particularly vulnerable because he lay unconscious on the floor right from the outset whereas your counsel says that vulnerability should logically be assessed at the commencement of the attack.

¹⁰ R v Gottermeyer [2014] NZCA 205 at [92].

¹¹ In R v Namana [2000] NZCA 348; [2001] 2 NZLR 448 (CA) a murder involving kicking the victim three times in the head while the victim was lying unconscious on the ground was held to be of sufficient brutality to justify a minimum term of 18 years under the Criminal Justice Act 1985, s 80, as the

circumstances of the offence were sufficiently serious to warrant a minimum term of above 10

years.

¹² R v Gottermeyer [2014] NZCA 205 at [79].

¹³ In R v Tait, HC Tauranga CRI-2010-070-5571, 16 September 2011 Priestly J did not consider that the 76 year old victim suffering from health problems was particularly vulnerable.

[38] The case law establishes that vulnerability can depend on the position of the victim when attacked – for example, if asleep.¹⁴ Persons who are lying prone and unable to defend themselves from a street attack may also be considered particularly vulnerable.¹⁵ It has also been accepted that a victim is in a “position of vulnerability” when struck for a second time when knocked unconscious by the first blow.¹⁶

However the requirement under s 104 is for “particularly” vulnerable is higher than ordinary vulnerability. The case law does not establish that a victim necessarily becomes “particularly vulnerable” when knocked unconscious.¹⁷

[39] In my assessment therefore, I consider that the murder was objectively brutal and s 104(1)(e) is engaged, and while it is arguable that Mr Mulholland was particularly vulnerable I do not rest my decision on that aspect.

The appropriate minimum term

[40] The Crown submits that the appropriate minimum period of imprisonment is

15 to 16 years. The Crown submits that there are three aggravating features of the offending – the level of violence and attacks to the head, the vulnerability of the victim, and the harm to the victims (including Mr Mulholland’s family). The Crown’s position is that your mental health ought not to be considered as a mitigating feature on the basis that the driving motivation for the offending was drug-related and unrelated to your mental health. The Crown submits there is no direct causal link between your mental health and the offending, and mental health ought to only be a personal

_{mitigating feature.}

¹⁴ R v Tu [2016] NZHC 1780.

¹⁵ R v Nelson [2012] NZHC 3570 at [28].

16. In Gillies v R [2014] NZCA 115 at [19] the Court of Appeal dismissed an appeal against sentence for injuring with intent to injure comprising of two quick punches to the head, holding that the

victim was in a "position of vulnerability" at the time of the second blow because the victim was unconscious

¹⁷ In R v Turner [2015] NZHC 189 at [92] Woolfood J found the victim was particularly vulnerable

on the basis that the offender knew the victim was alone, had been drinking, and had told police he knew the victim was smaller than him and could not fight back, a finding endorsed on appeal in R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [151].

In Lavemai v R [2016] NZCA 363 at [8] and [22], Gilbert J found a medicated victim who had probably slept for most of the day could not be characterised as particularly vulnerable, and even when the offender knocked him down, unconscious and defenceless to the continued punches to the head, this did not engage s 104 of the Act. The Court of Appeal later stated that although Gilbert J did not find that the victim was a particularly vulnerable person, that conclusion would have been open to him such that s 104 could be engaged on that ground too.

[41] Your counsel points to the fact that both the Crown and defence psychiatric witnesses agreed that you were psychotic and suffering from a disease of the mind at the time of your offending. Your counsel submits that an appropriate starting point for your offending prior to credit for your mental health is in the vicinity of 14 years imprisonment. Your counsel says there is strong evidence of a causative link between your mental illness and the offending. In addition, your counsel submits that a discrete reduction of the order of 20 to 30 per cent is warranted for your mental health as a personal mitigating circumstance.

[42] In setting the appropriate minimum term I must have regard to your own culpability, the gravity and the seriousness of your offending in comparison to other similar offending, and all the circumstances of the case, including those of the offender.¹⁸

[43] The level of violence of your offending is serious due to the length and severity of the beating and the fact that you resumed the attack on a prone and obviously seriously injured older man after the initial sustained onslaught. I agree that the attack was not premediated and appears to have been a reaction to the theft and disrespect you perceived. You say that you were getting back at Mr Mulholland for him “ripping you off”. However, Mr Mulholland did not give you any reason to commit this terrible act, despite what you might have thought. Whether or not Mr Mulholland may have dealt in drugs and whether or not he may have known Ms Uru who brought you to his apartment, there is nothing to suggest that Mr Mulholland had any hand in planning the circumstances of that night. In all senses, he was an unwitting victim.

[44] I accept Mr Mulholland was also vulnerable and defenceless to your continued attack after your rendered him unconscious – even if there is a question about whether he was “particularly” vulnerable. As the Court has heard, his death and the manner of his death has had a significant impact on his family.

[45] In other circumstances, I consider that this would warrant a “starting point” for minimum period of imprisonment of 17 years. However, I accept that the apparent brutality and seeming callousness of your actions is referable in part to your mental

¹⁸ R v Cui HC Auckland CRI-2006-004-18412, 6 December 2007 at [26].

illness. In that respect, I do not accept the submission that your mental state should not be considered as a mitigating factor when establishing the starting point for a minimum term of imprisonment. While this might be described as a drug deal gone wrong, it was also more than that.

[46] As I have already noted, the Court of Appeal has accepted that the mental health of a defendant may reduce moral culpability and moderate the requirements for general and specific deterrence, such that when s 104 is engaged, a substantial deduction in the appropriate minimum term may still be appropriate.¹⁹ I have also had regard to the more recent decision of Shailer v R where the Court of Appeal emphasised that mental illnesses that are directly causative of the offence may both reduce culpability and therefore the starting point, as well possibly be a personal mitigating feature.²⁰

[47] Dr Dean considered that your own justification for your actions arose from your moral beliefs independently of your psychiatric condition. Dr Pillai states that from his own assessment and the assessment of others, factors such as anger (on the basis of dissatisfaction with the purchase of methamphetamine) and intoxication and methamphetamine were present and contributed strongly to your behaviour at the time, and that an exact nexus between your abnormal state of mind and the violence of your offending is not clear. For those reasons, I cannot conclude that the psychosis you were experiencing at the time was directly causative role of your attack on

Mr Mulholland. Nonetheless, I am satisfied from the psychiatric and other evidence that your psychosis was a contributing factor to your offending and that you did not fully appreciate the severity or consequences of the attack. As the Court in Shailer said, mental health disorders diminishing willed choice may also diminish the extent of the sentencing response.

[48] If left untreated, your schizophrenia manifests as an abnormal state of mind with delusions and auditory hallucinations, creating an intermittent disorder of perception and cognition to such an extent that you pose a risk to others as has been

¹⁹ Gottermeyer v R [2014] NZCA 205 at [86]; Churchward v R [2011] NZCA 531, (2011) 25 CRNZ

446 at [93].

²⁰ Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [48].

demonstrated on at least two occasions prior to your attack on Mr Mulholland. You say that at the time of the offending you were hearing auditory hallucinations telling you to kill Mr Mulholland. You admit to having taken methamphetamine 10 to 12 hours previously and that you were angry and resentful for not receiving the drugs for which you had paid, and that you felt both fearful and disrespected.

[49] While your drug use may have played a role, this was not advanced at trial and was not established on the facts before me. Even so, the psychiatric evidence strongly indicates that your mental health issues were a significant factor in your attack on and murder of Mr Mulholland, even if not directly causative. While this did not mean you were not fit for trial or that you were not sane at the time, I am satisfied your abnormal mental state contributed to your actions in taking Mr Mulholland’s life.

[50] For all these reasons, I consider that your culpability was diminished and is not commensurate with the violence you inflicted on Mr Mulholland. Your response to the circumstances in which you found yourself, while not entirely out of character, were a marked escalation in your behaviour and attributable to the psychosis you were suffering. For these reasons, I consider that a starting point of 15 years as a minimum term of imprisonment is appropriate.

[51] Turning now to your personal circumstances, you have no previous convictions in New Zealand, although, as noted by Ms Lummis, you have come to the attention of the police on a number of occasions in the past and have received the benefit of warnings. You were convicted of assault while in Australia in August 2016.

[52] You also currently face charges arising from an incident in New Zealand on 1

May 2016. Those charges are of resisting police, assaulting police, possession of utensils and common assault. You were granted bail but breached your bail by leaving New Zealand. You were re-bailed when you returned in September 2017. These features are of concern as they tend to confirm a predilection to violent behaviour. However, those charges, which may also be manifestations of your mental illness, have yet to be determined and I do not consider it appropriate to take them into account.

[53] With regard to your mental illness as a personal mitigating feature, I am satisfied that your mental health issues moderate the relevance of your case in terms of general deterrence and of specific deterrence when your offending is caused at least in part by mental health issues which may be ameliorated by appropriate treatment.

[54] With regard to remorse, you expressed shock upon learning Mr Mulholland had died and until what Mr Goodwin said this morning, you have not shown any genuine remorse for your actions. Indeed, you have demonstrated limited insight into your offending and, so far, little motivation to change your behaviours. I accept this

is likely to be another manifestation of your illness, but it means remorse cannot be taken into account as a mitigating factor.

[55] Overall, I am satisfied that your severe mental health issues warrant a reduction of two years from the “starting point” of 15 years and that a 13 year minimum period of imprisonment is appropriate. I have also had regard to cases with similarities to your offending and mental health issues, bearing in mind, however, that there was no guilty plea in this case.²¹

²¹ In R v Tu [2016] NZHC 1780 Whata J held it would be manifestly unjust to impose a 17 minimum term due to the offender’s mental health disorders of schizo-affective disorder and autism spectrum disorder, as while the jury had rejected insanity these meant his culpability was at the lower end of the spectrum, justifying a 12 year minimum term reflecting a 30 per cent discount for personal circumstances.

In R v Gottermeyer [2014] NZCA 205, the Court found on appeal that the offender’s murder of his wife by cutting her throat after an argument engaged s 104(1)(e) because the use of a knife, the number of wounds inflicted, the fact that the victim took some time to bleed to death, and the fact that the couple’s child was in the house at the time, meant that a high level of brutality, cruelty and callousness was involved. However, his serious mental illness, combined with other mitigating factors, made the imposition of a 17-year minimum term manifestly unjust and led to the imposition of a 12-year minimum term on appeal.

In DD (CA595/14) v R [2015] NZCA 304, a murder involving a high degree of premeditation and cruelty was regarded as engaging s 104(1)(b) and (e), the Court of Appeal upheld a reduction in the minimum term from 18 to 15 years on account of the offender’s guilty plea, significant mental

health problems and history of having been sexually abused.

R v Harrison [2016] NZCA 381, a murder involving punches, kicks and stomps to the head and neck area while lying on the ground. The Court of Appeal considered that a starting point of an 18 year minimum term was appropriate and a modest discount of one year was given for guilty plea and mental health issues of severe personality disorder and schizophrenia.

In R v Morris [2012] NZHC 616 Andrews J imposed a minimum term of 10 years imprisonment on an offender where the murder involved three s 104 factors of callous violence in a serious and prolonged beating, unlawful entry to victim’s home, and vulnerability because of the confined space the victim was in, and the young offender showed remorse and had significant mental health issues – paranoid schizophrenia and borderline personality.

In R v McIsaac [2016] NZHC 1544 Collins J found that while s 104 was engaged because the murder involved a vulnerable victim who was asleep at the time and unable to flee or defend himself, a discount of 18 months was appropriate to recognise an early guilty plea and mental health considerations, resulting in a minimum term of 14 years.

Manifestly unjust?

[56] I must now consider whether it wold be manifestly unjust to impose the 17 year minimum period of imprisonment otherwise mandated by s 104.

[57] In the context of s 104, the Court of Appeal has made clear that the manifestly unjust criterion is not confined to exceptional cases.²² A minimum term of 17 years will be manifestly unjust where the overall impression of the case is that it falls outside the scope of the legislative policy that murders with specified features are sufficiently serious to justify at least that term.²³

[58] Your counsel says that in the circumstances of your case it would be manifestly unjust to impose a 17 year minimum period. The Crown also accepts it may be manifestly unjust to impose a minimum period of imprisonment of 17 years because of your mental illness. The Crown accepts a small reduction in the starting point is warranted to take into account your mental health, and proposes a minimum term of

15 to 16 years imprisonment.

[59] The Court of Appeal has held that where the culpability attaching to the offence is relatively low given the wide range of cases caught by s 104, the circumstances of the offender may make the sentence manifestly unjust.²⁴ Whether it is manifestly unjust must be determined having regard to all of the purposes and principles of sentencing that are set out in ss 7 to 9 of the Sentencing Act.²⁵ While mitigating factors directly bearing on the offence will often carry greater weight than those relating to the offender, each is capable of influencing the outcome of the inquiry into whether a minimum period of 17 years imprisonment would be manifestly unjust.²⁶

[60] While the jury rejected your defence of insanity, I accept that at the time of offending you were under a significant mental disorder which had a substantial impact on your decision-making and your comprehension of the consequences of your

²² R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA) at [59]- [65].

²³ At [67].

²⁴ At [68].

²⁵ At [56].

²⁶ R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA) at [71]; Churchward v R [2011] NZCA 531, (2011) 25

CRNZ 446 at [74].

actions. Given the link between your mental illness and your offending, my overall impression of your case is that it does fall outside the legislative policy behind s 104 that murders with the features specified in that section are sufficiently serious to justify at least a minimum term of imprisonment of 17 years. Accordingly, I am satisfied that a minimum term of imprisonment of 17 years in your case would be manifestly unjust.

Disposition

[61] Dr Pillai’s considers that you are no longer mentally disordered within the meaning of the Criminal Procedure (Mentally Impaired Persons) Act in light of the care you will receive in prison and so has not recommended that you be detained as a special patient in a hospital under s 34 of that Act. Dr Pillai considers your in-prison care should mitigate against unanticipated deterioration of your mental state or substantial relapse of psychosis. If your condition deteriorates, and I take a note of Mr Goodwin’s observations in that regard, or it is otherwise necessary you can be returned to the Mason Clinic as a special patient. In light of this information, I decline to order that you be detained as in a hospital as a special patient.

[62] You have long term treatment and rehabilitation needs in the area of psychoeducation, mental health, and substance addiction. The road to recovery is likely to be a very long one for you Mr Yad-Elohim, and will have its significant personal challenges for you. Any eventual return to the community will require a careful assessment of your needs. Lifelong specialist mental health care is likely necessary to ensure you are not a danger to yourself or others. You are a relatively young man and I encourage you to continue with your treatment, as when you become eligible for release, you will still have a substantial part of your life ahead of you.

Sentence

[63] Mr Yad-Elohim, would you please stand.

[64] Mr Yad-Elohim, on the charge of murder, I sentence you to life imprisonment and impose a minimum period of imprisonment of 13 years.

[65] You may stand down.

G J van Bohemen J