R v ROLING [2020] NZHC 2725

R v ROLING [2020] NZHC 2725 [16 October 2020]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2019-063-2075[2020] NZHC 2725THE QUEENvNICHOLAS MARTIN ROLINGCounsel: A L McConachy and G Banuelos for CrownA M M Schulze for DefendantSentenced: 16 October 2020Charge: MurderPlea: GuiltySENTENCING NOTES OF BREWER JSolicitors:Gordon Pilditch (Rotorua) for CrownIntroduction[1] Mr Roling, at the age of 54, you appear today for sentencing having pleadedguilty to the murder of Mr Ngatai. You shot Mr Ngatai in the back, after hiding nearhis house, waiting for him to return home.[2] Your crime has had a devastating effect on Mr Ngatai's whanau and friends. Ihave read statements from 16 of the whanau expressing their grief and loss. Mr Ngataiwas a much-loved and much-needed son, partner, father, brother, nephew, cousin andfriend.[3] In sentencing you today, I cannot give back to the whanau what you have takenfrom them. That would be impossible. Instead, my job is to respond to your offendingas the law requires.[4] The sentence for murder is life imprisonment. Life imprisonment means whatit says. You will spend the rest of your life in prison unless you can satisfy the ParoleBoard, after many years, that you are safe to be released back into the community.Even if that happens, you will still be subject to your sentence of life imprisonment.If, at some time in the future, you are released on parole, any further offending orbreach of the terms of your parole would see you brought back to prison to continueserving your life sentence.[5] The only question I have to decide today is your minimum period ofimprisonment. The law requires a Judge, in a case of murder, to set a minimum periodof imprisonment. That is not the sentence. The sentence is life imprisonment. Theminimum period of imprisonment is simply the period during which the Parole Boarddoes not have to assess you for possible release on parole.[6] In your case, the starting point is 10 years' minimum non parole. The Crownsubmits that this should be increased a little to 12 years. Your lawyer submits that11 years would be more appropriate. It probably does not matter much becauseultimately it will be for the Parole Board to decide when, if ever, you should bereleased on parole. However, that is the decision I now need to consider.The offending[7] I will start by going briefly through the facts as they are set out in the summaryof facts to which you pleaded guilty.[8] You were in an on-again, off-again relationship with Ms Brown for aroundthree years. The two of you separated in 2017 and Ms Brown started a newrelationship with Mr Ngatai.[9] You resented Ms Brown for ending your relationship and as a result you didnot like Mr Ngatai.[10] After the separation, you lived a transient lifestyle, moving from town to town.Over this time, you maintained some contact with Ms Brown and her son, Mr Walsh.[11] From about 16 June 2019, you had returned to Rotorua and you were stayingat Mr Walsh's house. Mr Ngatai and Ms Brown lived nearby.[12] On 26 June 2019, you left Mr Walsh's house and walked to where Mr Ngataiand Ms Brown were living. In your letter to me, you say that that was prompted byan encounter you had had with Mr Ngatai. But you went to where they were and youtook with you a sawn off, side by side, 12 gauge shotgun. When you came to theaddress, you walked down the side of the neighbouring property and lay in wait behinda large hedged fence. You waited there for between one hour and one-and-a-halfhours, with the shotgun.[13] At some stage you loaded two rounds into the shotgun.[14] At about 7.40 pm that evening, Mr Ngatai and Ms Brown arrived home havingdone their grocery shopping. Ms Brown went into the house first to get some keys soshe could move another vehicle which was parked outside. When she walked backwith the car keys, she passed Mr Ngatai by the front door as he was about to go insidewith the groceries.[15] Suddenly, you stepped out from the fence, raised the shotgun, and fired oneround into Mr Ngatai's back.[16] Ms Brown spun around and saw Mr Ngatai start to stagger. She looked towhere the gunshot had come from and saw you standing on the other side of the hedgedfence. Ms Brown says she heard you say, "that'll teach him".[17] Ms Brown did her best for Mr Ngatai, but he died at the scene as a result of thegunshot wound.[18] You hid the shotgun in the hedge near where you had been waiting. It still hada live round in one of the barrels. You returned to Mr Walsh's house.[19] Ms Brown anticipated you would return to Mr Walsh's address and she had thepresence of mind to telephone Mr Walsh to warn him. When you returned, Mr Walshasked you what you had done and you replied that you had shot Mr Ngatai. You triedto push past Mr Walsh to get into the house and the two of you struggled. Mr Walshgot you down on the ground and he held you until the police arrived.Minimum period of imprisonment[20] Mr Roling, a murder always involves the intentional or reckless killing of ahuman being. Very often weapons are used. Sometimes the murder occurs on the spurof the moment. Sometimes the murder is planned. In your case, Mr Roling, I considerthe main aggravating feature to be that you planned the killing of Mr Ngatai. That isto say, you went to his house intending to shoot him. The other factor is that he wasvery vulnerable. He was unarmed. You ambushed him and shot him in the back.[21] Against that, you eventually pleaded guilty, you have expressed remorse andyou have been diagnosed with a psychiatric disorder. However, I do not place muchweight on those factors. The evidence against you was very strong and it is easy tostate remorse. The letter you gave me today seems sincere and shows you have somelimited insight into what you have done. Your psychiatric disorder is not said by thepsychiatrist to be causative of your offending, or even partly causative of youroffending. Nevertheless, I will give you some small credit for these factors and forthe fact that you do not have a history of serious violence having reached the age of54 years.[22] The lawyers have referred me to a number of cases where minimum periods ofimprisonment have been set by the courts. I will not discuss them with you but I willlist them in the written record of these sentencing notes.1 Without the mitigatingfeatures I would set a minimum period of imprisonment for you of 11 years and sixmonths. I reduce that to 11 years.Sentence[23] Mr Roling, for the murder of Jeremy Russel Ngatai, I sentence you to lifeimprisonment. I order that you serve a minimum period of imprisonment of 11 years.[24] You may stand down.________________________________Brewer J1 R v Paewhenua [2018] NZHC 301; R v Douthett [2019] NZHC 2214; R v Meads HC HamiltonCRI-2019-019-8828, 31 March 2011; R v Singh [2015] NZHC 2369; R v Herkt [2016] NZHC 284;R v Te Poono [2020] NZHC 1188.