R v Bax [2018] NZHC 411 (13 March 2018)

Last Updated: 13 March 2018

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2016-029-000890 [2018] NZHC 411

THE QUEEN

v

MARCUS BAX

Hearing:	13 March 2018
Appearances:	M B Smith and W McNeil for Crown A B Fairley and A Harvey for Defendant
Sentence:	13 March 2018

SENTENCING NOTES OF WYLIE J

Solicitors/counsel:

Crown Solicitors, Whangarei Thomson Wilson, Whangarei

R v BAX [2018] NZHC 411 [13 March 2018]

Introduction

[1] Mr Bax, you appear for sentence today, having pleaded guilty to the murder of Peter Nilsson at Te Kao on 4 August 2016.

[2] A conviction has been entered and the Sentencing Act 2002 requires that you must be sentenced to imprisonment for life, unless it would be manifestly unjust to do so.¹ If I impose a sentence for life, then the legislation, in most circumstances, requires me to impose a minimum term of imprisonment of not less than 10 years.² However, s 104(1) of the Sentencing Act outlines a number of circumstances which, if made out, require a minimum period of imprisonment of 17 years or more, unless such a sentence would be manifestly unjust.

Relevant facts

[3] You lived at a rural address in Te Kao with the adult daughter and son of the deceased. The daughter’s partner also lived at the address.

[4] The deceased was 77 years old. He lived a few kilometres away from you and other family members.

[5] At about 9.30 pm on 4 August 2016, you left home. You had been at home during the evening hours and you had shared a meal with the others present. You drank some beer before leaving the address.

[6] You returned a short time later. You were covered in blood and you were holding a butcher’s knife. You told the deceased’s daughter and son that you had just slit their father’s throat. You asked for their help in destroying the evidence. For example, you asked them to use bleach to clean blood from you and to help you burn your clothing. Fearing for their own safety, the deceased’s daughter and son agreed to assist.

¹ Sentencing Act 2002, s 102(1).

² Section 103(2).

[7] The daughter asked her partner to go to the deceased’s house and see what had happened. The partner drove to the deceased’s house. He found the lights on and the front ranchslider door open. He entered the house and looked in the deceased’s bedroom. He saw the deceased lying on his back in his bed. The deceased was unresponsive. The covers were pulled up to his chest and his face was white. There was blood on the blankets close to his face.

[8] The partner returned to the house and told the deceased’s daughter what he had seen. She then called the police.

[9] While waiting for the police to arrive, you made various admissions to the deceased’s daughter and son. You said that you had killed their father because you thought he had been involved in historical offending many years earlier. You told the deceased’s son that you had thrown a bar at the deceased and then slit his throat.

[10] The police found the deceased dead in his bed. A large chipper bar from a nearby farm implement shed was found next to his bed. The deceased had wounds to his neck area. When the police arrived at your home, they found the butcher’s knife next to the incinerator. It was subsequently identified as belonging to the deceased. The incinerator contained burnt clothing.

[11] The deceased’s death was caused by an incised wound to his neck. The Crown pathologist who examined the deceased’s body noted that there were multiple injuries to the neck. He considered that there had been multiple cuts to the deep structures of the neck, which could have been due to a repeated cutting motion. The multiple cuts had divided the left and right carotid arteries, the left and right jugular veins, the larynx and the oesophagus. The muscles on the side of the neck and in front of the vertebra had also been injured. There was also evidence of blunt force trauma with several linear bruises over the deceased’s upper right anterior chest wall, abrasions on his abdomen and two fractured ribs on his left-hand side. There were further minor abrasions to the back of the deceased’s right hand and to his left abdomen.
[12] When you were first spoken to by the police on the night, you denied both leaving the home you shared with the deceased’s daughter and son, and killing the deceased.

[13] When the police spoke to you formally the following day, you stated that you did not remember what had happened the previous night.

Pre-sentence report

[14] You are 39 years old. You are single and you have no children. You describe yourself as being a “geographical therapist” because you say that you have moved around from place to place for the majority of your life.

[15] The probation officer who interviewed you described you as polite and forthcoming. In explanation for what occurred, you stated that you had looked up to the deceased prior to the offending both as a role model and a father figure. You told the probation officer that you had spent the majority of your youth and adult years with the deceased’s family, and that you had become a close friend to family members. You said that you had found out something about the deceased’s past behaviour which you disapproved of. You claimed that you were emotionally distressed once you found out about this and that you wanted to confront the deceased about it. You denied having any plans to use violence against the deceased, or of having any intention to kill him. You added that impulse took over. You expressed remorse towards the victim’s family and you have indicated that you wish to apologise to them in person if you are given the opportunity to do so. You have written a letter of remorse to the Court to extend your apologies to the victim’s family. It has been read out in Court today by your counsel, Mr Fairley.

[16] You also stated that you suffer from depression and that you have been taking medication while you have been in custody.

[17] The probation officer noted that your offending represents a significant escalation in seriousness from your prior offending and he assessed you as posing a medium likelihood of reoffending.

Victim impact statements

[18] I have received victim impact statements from the deceased’s family members.
A number of those victim impact statements have been read in Court today

[19] All victims have expressed their grief and deep sense of loss. It is very clear that your offending has had very real significance for all of them; some have required counselling; others are struggling to manage their lives. Some are struggling to manage the farm the deceased helped them look after. All have lost someone who for various reasons was very special to them. Their grief is real and inconsolable. The family have the Court’s sympathy.

Purposes and principles of sentencing

[20] In sentencing you, I have considered the purposes and principles set out in ss 7 and 8 of the Sentencing Act. In particular, I have had regard to the need to hold you accountable for your offending, the need to promote in you a sense of responsibility for and an acknowledgment of that offending, and the need to denounce the conduct in which you were involved. I have also been mindful of the need to deter others from committing the same or similar offences. I have taken into account the gravity of the offending with which you were involved, including your culpability. I have considered the seriousness of this type of offending and the general desirability of consistency of appropriate sentencing levels between similar offenders committing similar offences. I have had regard to the various aggravating and mitigating factors identified in s 9 of the Act and to the factors listed in s 104 relevant to the minimum term of imprisonment I must impose.

Analysis

[21] As I have explained earlier, there is a presumption in favour of life imprisonment for murder. The Sentencing Act requires that an offender who is convicted of murder must be sentenced to imprisonment for life, unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.³

³ Section 102(1).

[22] There are no circumstances in relation to the offending or in relation to you which would make a sentence of life imprisonment manifestly unjust. Neither Mr Fairley on your behalf, nor Mr Smith for the Crown, suggested otherwise.

[23] I turn to consider the minimum period of imprisonment appropriate to your offending. As I have already explained, pursuant to s 103(2) of the Sentencing Act, a sentence of life imprisonment with a minimum term of imprisonment of 10 years or more must be imposed. This section is subject to another section – s 104. It provides that the Court must make an order imposing a minimum period of imprisonment of at least 17 years in various circumstances which are set out in the Act, unless the Court is satisfied that it would be manifestly unjust to do so.

[24] The primary matter for determination is whether s 104 has been engaged.

[25] The Crown argues that your offending comes within s 104 of the Act for one or more of the following reasons:

(a) your offending involved the unlawful entry into, or your unlawful presence in, a dwelling house;

(b) the murder was committed with a high level of brutality, cruelty, and callousness;

(c) the deceased was particularly vulnerable, because of his age and perhaps because he was in bed or asleep at the time.

Mr Fairley, on your behalf, focused primarily on the brutality of your actions and on the deceased’s vulnerability.

[26] It is necessary to examine each of these features separately to see whether they come into play in your case.

[27] First, I consider whether there was unlawful entry into, or unlawful presence in, the deceased’s dwelling.
[28] In my view, there was an element of home invasion in this case. It is unclear from the summary of facts to which you have pleaded guilty what happened when you arrived at the deceased’s home. However, whether or not the deceased allowed you to enter his home is not important. Even if your initial entry into his house was lawful and with his consent, as a matter of law, your presence in the house became unlawful once you commenced attacking the deceased.⁴ In my judgment, this factor is made out.

[29] Secondly, I consider whether there was a high level of brutality and callousness in your actions.

[30] Assessing this issue requires objective analysis.⁵ I accept Mr Fairley’s submission that every murder has an inherently callous, cruel and brutal nature.⁶ Here, on your own admission, you threw a large chipper bar at the deceased, before attacking him with the butcher’s knife. The pathologist’s report suggests that not inconsiderable blunt force trauma was applied to the deceased. The pathologist noted the bruises, abrasions, and two fractured ribs. The wound to the deceased’s neck was caused by multiple cuts, resulting in a complex series of injuries and leaving two gaping wounds. Mr Fairley accepted that there were three knife wounds to the deceased’s throat and that these occurred when you attempted to slit the deceased’s throat.

[31] Mr Fairley argued that your actions were not calculated or well planned. I do not accept that submission in its entirety. You left your house at 9.30 pm to travel to the deceased’s house. Once you were there you murdered him. You must have taken the chipper bar from the implement shed with you when you went to the deceased’s house. You must have picked up the butcher’s knife when you were there as well. It is unclear whether or not you had a calculated plan to murder the deceased. There was nevertheless a level of premeditation and it cannot be said that the murder was a spontaneous reaction to a perceived slight. Moreover, there was an element of vigilantism. You decided to travel to the deceased’s home to confront him with

⁴ Cummings v R [2016] NZCA 509 at [77].

⁵ Gottermeyer v R [2014] NZSC 115 at [5].

⁶ R v Mulligan HC Whanganui CRI-2010-083-1242, 1 July 2011 at [41].

something you thought he had done many years ago. In my view, there was therefore a degree of premeditation.⁷

[32] I have considered the various cases referred to me by counsel, many of which involve similar injuries.⁸

[33] In my judgment, viewed objectively, the murder was committed with a high level of brutality and callousness. This factor is made out as well.

[34] I now turn to consider the particular vulnerability of the deceased. Again, this circumstance calls for a fact-specific enquiry.⁹

[35] Mr Fairley submitted that the deceased should not be considered particularly vulnerable because he lived and worked on the family farm. Mr Fairley argued that the deceased was physically able. I note, however, that the deceased was elderly – 77 years. In contrast, you were 38 years of age at the time. The deceased was at his home at the time of the attack. He was found in his bed, and Mr Fairley accepted that he was in bed and unarmed at the time of the offending. The deceased’s ability to defend himself against an attack, first with a chipper bar, and then with a butcher’s knife, would have been limited. In my view, the deceased was vulnerable, primarily because of his age, but also because of the circumstances he was in at the time of the attack. This s 104 factor is also made out on the facts of your case.

[36] In my view, three of the aggravating features noted in s 104(1) of the Sentencing Act were present in your offending. The presence of one or more of these s 104 factors establishes that the murder you committed is sufficiently serious as to justify a minimum term of imprisonment of not less than 17 years, unless it would be manifestly unjust to impose that sentence.¹⁰

⁷ Sentencing Act, s 9(1)(i).

8. R v Baker HC Auckland CRI-2006-044-5276, 15 December 2006; R v Lavemai [2014] NZHC 797; R v Tarapata [2015] NZHC 1594; R v Herewini [2013] NZHC 2570 at [21]- [22]; Reekers v R [2011] NZCA 383 at [31]- [32]; R v Frost HC New Plymouth CRI-2007-043-471, 9 April 2008; Smith v R [2016] NZCA 617; R v Rajamani HC Auckland CRI-2005-004-1002, 28 March 2006; R v Seau HC Auckland CRI-2006-092-18372, 17 April 2008.

⁹ Graham v R [2011] NZCA 131 at [13].

¹⁰ R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA) at [52].

Manifestly unjust?

[37] I now turn to consider whether a 17-year minimum term of imprisonment would be manifestly unjust given your personal circumstances.

[38] You have several previous convictions, largely for driving related offences and for disorderly behaviour. They have no relationship to your present offending, and I have not taken them into account.

[39] Mr Fairley has asked me to consider two medical reports which canvass your mental health.

[40] The first report was from Dr Pillai. It is dated 18 November 2016. The primary purpose of this report was to establish whether or not you were fit to stand trial.¹¹ Dr Pillai commented on your psychiatric history. He noted that, in 2001/2002, you were admitted into a psychiatric unit and treated for depression, suicidal ideation, and behavioural problems. This also occurred again in 2005, when you were diagnosed with chronic dysthymia and placed on medication. In 2007, you were again admitted to hospital having suffered a major depressive episode. In 2009, you overdosed on drugs, which resulted in further treatment, and, in 2012, you had further contact with hospital authorities as a result of polysubstance dependence and post-traumatic stress disorder.

[41] The second report is from Dr Skipworth. It is dated 10 January 2017. Dr Skipworth noted the juxtaposition in your feelings about the deceased, as a father-like figure, and as someone who you thought had done something in the past which you disapproved of. Your mental health issues were noted, including your current depression, borderline personality disorder, chronic post-traumatic stress disorder, chronic suicidality and polysubstance abuse. Dr Skipworth also found you fit to stand trial.

[42] When you spoke to the probation officer for the purposes of the pre-sentence report, you were asked whether alcohol had had any impact on your actions at the

¹¹ Criminal Procedure (Mentally Impaired Persons) Act 2003, s 38.

time. You replied that you were going through a lot of emotions on the day and that alcohol “would not have had any difference”. A departmental alcohol and drug use questionnaire was used to further consider this issue, and substance abuse was not assessed as being problematic. It was noted that you commenced, but did not complete, an Odyssey House residential addiction treatment programme, and that you have been able to put into practice some of the tools you learnt to manage and control your alcohol consumption. You did tell the probation officer that you were suffering with depression and that you have continued to take medication whilst in custody.

[43] I accept that you have suffered and are still suffering from a number of mental health issues. Nevertheless, it is noteworthy that both Drs Skipworth and Pillai considered that you were fit to stand trial. Indeed, both doctors considered that, at the time of the offending, you were not suffering from a serious mental health illness.

[44] A mental disorder falling short of exculpating insanity can be capable of mitigating a sentence either because, if causative of the offending, it moderates the offender’s culpability, or because it renders less appropriate or more subjectively punitive a sentence of imprisonment, or because of a combination of these matters.¹²

[45] The difficulty in your case is that there is nothing to suggest that your past or present mental health issues were causative of your offending. Nor is there anything to suggest that your mental health issues render less appropriate or more subjectively punitive a sentence of imprisonment.

[46] Next, in considering whether or not a minimum period of imprisonment of 17 years is appropriate, there is your guilty plea.

[47] Generally, a defendant who promptly pleads guilty for an offence is entitled to a reduction of up to 25 per cent for his or her guilty plea.¹³ The Court of Appeal, however, has commented that the discount required for a guilty plea to murder may often be less than that in an ordinary case where the statute establishes no presumption that the sentence will be at a particular level.¹⁴ In the case of a murder which exhibits

¹² E (CA689/10) v R [2010] NZCA 13 at [68].

¹³ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].

¹⁴ R v Williams, above n 10, at [69] at seq.

one or more of the circumstances set out in s 104, the statute does establish a presumption that the sentence will be not less than 17 years. Departures from the 17- year minimum required by the Act can occur in cases of clear injustice,¹⁵ and the Sentencing Act requires that a plea of guilty should be taken into account as a mitigating factor.¹⁶

[48] The Crown accepted that your guilty plea could entitle you to a discount in the sentence I would otherwise impose.

[49] Here, the Crown clearly had a strong case. While your guilty plea was not entered at the earliest reasonable opportunity, I accept Mr Fairley’s submission that you accepted your role in the offending at a relatively early stage and that the delays thereafter in entering the plea was caused by the obtaining of the medical reports, delays with legal aid funding for a defence expert, and the possibility of a disputed facts hearing.

[50] Finally, I note that you have expressed profound remorse for what happened and that you have never committed offending involving violence before. I accept that your remorse is genuine.

[51] Taking all of these various matters into account, I consider that it would be manifestly unjust to impose a minimum term of imprisonment of 17 years in your case. In reaching this conclusion, I have considered the various cases referred to me by counsel.¹⁷ I have also considered some additional decisions.¹⁸ In my view, the appropriate discount in your case to allow for all of the matters is one of two years imprisonment from the sentence I would otherwise have imposed.

Sentence

[52] Mr Bax, will you please stand.

¹⁵ At [73].

¹⁶ Sentencing Act, s 9(1)(b); R v Williams, above n 10, at [73].

¹⁷ Above n 8.

¹⁸ R v Findlay [2017] NZHC 2551; Wallace v R [2010] NZCA 46; R v Ellery [2013] NZHC 2609.

[53] In respect of the murder of Peter Nilsson at Te Kao on 4 August 2016, you are sentenced to life imprisonment. You are to serve a minimum term of imprisonment of not less than 15 years.

[54] You may stand down.








Wylie J