R v PEENI [2020] NZHC 1352

R v PEENI [2020] NZHC 1352 [16 June 2020]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2019-019-7257[2020] NZHC 1352THE QUEENvRUEBEN PAUL PEENIHearing: 16 June 2020Appearances: R L Mann for CrownA M Beveridge for DefendantJudgment: 16 June 2020SENTENCING REMARKS OF LANG JSolicitors:Crown Solicitor, Hamilton[1] Mr Peeni, you appear for sentence having pleaded guilty to a charge ofmurdering your former partner, Crystal Selwyn. The maximum sentence for thatoffence is life imprisonment together with a minimum non-parole period.Factual background[2] The basis on which you are to be sentenced is an agreed summary of facts.This records that you and your former partner were in a relationship for approximately18 years and have six children together. At the time of the incident giving rise to thecharge all the children were less than 12 years of age and resided at your formerpartner's address with her.[3] By this stage your relationship was at an end and she had entered into a newrelationship. Notwithstanding the separation you had remained living at her address.[4] The incident giving rise to the charge needs to be considered against abackground involving numerous attendances by the police at the property since April2008 to investigate instances of family harm involving you and your former partner.These calls to the police were made either by her or by friends and neighbours whoheard what was going on in the house and were concerned for her welfare.[5] The summary records that these incidents related to a variety of forms ofconduct on your part including damage to property and violence directed towards yourformer partner. This included the infliction of physical blows along with threats tokill. Her response when confronted with this type of conduct was to telephone thepolice. This usually resulted in you being asked or told by the police to leave theaddress. On some occasions you were arrested. You have several previous convictionsgoing back to 2008 for assaulting your former partner and threatening to kill her. Ontwo occasions during 2017 you were sentenced to imprisonment on these charges.[6] The events leading to the present charge began with an incident that occurredin the early hours of Friday 22 November 2019. This caused your former partner tocontact the police but by the time they arrived at the address you had already left.[7] On the evening of Saturday 23 November 2019, you, your former partner andfive of your six children were at the address. Three children from a neighbouringaddress were also present. They were aged between seven and 14 years.[8] You had been consuming alcohol there over the course of the day. Afterreturning from purchasing more alcohol you began walking around the addressbehaving in an aggressive manner. During this, you were heard within earshot of thechildren to say you were going to kill their mother.[9] At 6.27 pm Crystal telephoned the police and requested their assistance. Thisprompted you to punch her in the head, causing her to fall to the ground on a concretearea next to the house. You then grabbed her hair with one hand whilst you continuedpunching her in the head at least four more times as she tried to protect her head withher hands. This assault occurred in front of both your children and the children visitingthe address. A 14 year old child, who was visiting the address, intervened in an attemptto pull you away as the assault continued but was unable to do so. Your six year oldchild also tried to pull you off his mother by grabbing at your singlet and biting youbut you pushed him away.[10] You then picked up a paving brick that was lying nearby. This weighedbetween six and seven kilograms. As Crystal lay on the ground on her back you struckher on and about the head with the brick on six occasions, telling her to die and callingher a despicable name. After briefly putting the brick down on the ground you liftedit up again and struck her between seven and ten more times to the head, saying "dieyou fucking asshole".[11] The attack lasted for approximately 90 seconds and left Crystal unconsciouson the ground. You then got into your vehicle and left the address, leaving the bloodiedpaving brick near where she lay. The whole of the assault was recorded electronicallyon the 111 call that Crystal had made to the police as the assault began. The abusivecomments you made during the incident were also recorded.[12] Three of the children who were present witnessed the incident involving theinfliction of blows with the brick. The remaining children at the address heardscreaming but did not witness the actions that were causing this.[13] You then travelled to your sister's address, where your sister told you that youneeded to do the right thing and take responsibility for what you had done. She andher husband then drove you back to your former partner's address, where the policewere already in attendance. You were arrested at that time.[14] Crystal was taken to hospital, but her injuries were unsurvivable and she diedon the afternoon of Tuesday 26 November 2019. A post mortem examination revealedthe cause of her death to be blunt force trauma to the skull resulting in significant braininjury. The examination revealed numerous blunt force injuries to her head and neckregion, with the majority of injuries being to the head. There were multiple bruises,abrasions, lacerations and skull and nasal fractures to all planes of the head, includingthe face. The pattern of injuries was in keeping with multiple impacts to the head andneck by a blunt object with considerable force. Other bruises and abrasions werevisible on Crystal's limbs and torso. In particular, her left arm had multiple bruisesand abrasions.[15] When the police interviewed you, you admitted assaulting Crystal and you saidyou "just lost it". You admitted punching her in the head and hitting her with thepaving brick, but said you believed you had only struck her twice with the brick.[16] You entered your guilty plea at a very early stage. You appeared in this Courtfor the first time on 19 November 2019. On that occasion the Court ordered a reportfrom a psychiatrist to be obtained. You then entered a guilty plea at your nextappearance on 25 February 2020.Victim impact statements[17] I have received victim impact statements from Crystal's mother and her aunt.One of these was read to the Court today and you have heard it. Although thestatements are in measured terms they give some insight into the degree of harm andgrief your offending has caused. It will be many years, if ever, before the family areable to come to terms with the grief they are suffering as a result of Crystal's death.As her aunt said, when Crystal died a part of her died as well. Her mother maderemarks to similar effect. The extent to which your offending has causedpsychological harm to the children who witnessed and heard the incident are alsolikely to be incalculable and long-lasting.Approach[18] There is no dispute that the sentence to be imposed on you must be one of lifeimprisonment. The main issue to be determined today is the length of the minimumterm of imprisonment you will be required to serve before being eligible to apply forparole.[19] The Crown contends that several aggravating features of your offendingengage s 104 of the Sentencing Act 2002 so that the Court must impose a minimumterm of not less than 17 years imprisonment unless it would be manifestly unjust forthat to be done.[20] In cases such as this the Court must first consider the sentences imposed inother broadly similar cases in order to ascertain what minimum term of imprisonmentwould ordinarily be imposed without taking into account s 104. Next, the Court mustdetermine whether s 104 is engaged. If it is, the Court must decide whether theimposition of the 17 year minimum period of imprisonment required by s 104 wouldbe manifestly unjust.1 In large part this requires the Court to stand back and determinewhether your offending falls into that category of offending to which s 104 wasdesigned to apply.What minimum term would be appropriate leaving aside s 104?[21] Your offending involves numerous aggravating factors. First, it involved asustained attack to the head with a very hard object that you were using as a weapon.It involved numerous blows to both the head and torso of a person who was effectivelydefenceless. The infliction of violence was also accompanied by degrading and1 R v Williams [2005] 2 NZLR 506 (CA) at [52]–[54].derisive taunts. I do not accept your counsel's submission that these merely showedyour intention to kill Crystal. They also demonstrate the fact that you held her in totalcontempt and considered she deserved to die in this way. Then there is the fact thatyour offending occurred within the sight of three of the children and within earshot offive others. The effects of your offending on everyone who was present that day will,as I have said, be catastrophic. Finally, you did not stay to seek medical help whenthe attack finished. Instead, you left the scene and left others to deal with theaftermath. I accept, however, that you returned to the scene voluntarily a short timelater.[22] The Crown has provided me with cases involving offending that it says couldbe regarded as broadly similar to those in your case.2 It says those cases demonstratethat a starting point for the minimum term of at least 18 to 20 years imprisonment willbe warranted even leaving aside s 104. I consider that starting point to be too high inyour case. The cases to which the Crown has referred contain aggravating factors inthe form of planning and premeditation that are simply not present in your case. Onthe other hand, your counsel submits a starting point of around 14 to 16 yearsimprisonment is appropriate. I consider that to be too low having regard to theaggravating features of your offending.[23] Given the aggravating features of your offending I am satisfied that, puttingaside the effect of s 104, a minimum term of imprisonment of 17 years would berequired. From that, however, a discount must be applied to reflect the fact that youpleaded guilty to the charge at a very early stage. In doing so you saved your familyand Crystal's family from the traumatic experience of being required to relive herdeath through the ordeal of a trial by a jury. The guilty plea also reflects youracceptance of responsibility and remorse for your actions.[24] The discount to be applied for guilty pleas in the present context is different tothat taken in imposing a conventional sentence, when a discount of up to 25 per centmay be available. In the present context discounts of no more than one to two yearsare generally applied. Given the inevitability of conviction if you had defended the2 Christian v R [2017] NZCA 168; Singh v R [2019] NZCA 436.charge, I consider your guilty plea warrants a discount of 18 months, thereby bringingthe minimum term of imprisonment down to 15 and a half years.[25] I would not reduce the minimum term further to reflect matters contained in areport your counsel has provided under s 27 of the Sentencing Act 2002. This revealsyou were brought up by your grandparents whom you believed were your parents. Itcame as a shock to you to discover when you were nine years of age that they were infact your grandparents. Then at 10 or 11 years of age you were removed from theMāori immersion school you had been attending and placed in a mainstream school.This was a further shock to you and you failed to adapt to it, leaving school at the ageof 15 years. The report says you were also subjected to violence on occasions at thehands of your grandfather. All of these factors are said to have invoked in you feelingsof abandonment, insecurity and confusion as to your upbringing. These factors alsoled to you becoming involved with drugs at an early age and you also began toassociate with a gang.[26] In cases of serious offending such as murder the Court's ability to exercise itsdiscretion to give credit for factors such as this is more constrained than it might be inother contexts.3 I also see little in the way of any nexus between the factors raised inthe report and the present offending. The present offending appears to have been theculmination of many years of abuse of your former partner in one form or another.Although the relationship was not as violent as many the Court sadly encounters, thereis no escaping the fact that you had been abusive towards Crystal for many yearsbefore the final incident that led to her death. You were 36 years of age when youkilled her. You have had ample opportunities to change your approach to yourrelationship with her. I do not consider any further credit should be given for the issuesidentified in the s 27 report.Is s 104 engaged?[27] I now need to consider whether s 104 applies to your offending. The Crowncontends your offending was committed with a high degree of brutality, cruelty,3 Hohua v R [2019] NZCA 533 at [45].depravity and callousness.4 It also says the section is engaged because Crystal wasparticularly vulnerable due to her slight physical build and the fact that she was lyingdefenceless on the ground at the time of the attack.5[28] The authorities make it clear that the factors set out in s 104 need to be presentto a high level before the section is engaged.6 I do not consider the factors relied onby the Crown establish vulnerability on Crystal's part to the extent required to engages 104.[29] Virtually all murders involve, to some degree, elements of brutality,callousness and cruelty. Again, however, those factors must be present to a high levelbefore the section is engaged. I accept without hesitation that the attack with thepaving brick involved elements of brutality and cruelty. Standing alone, however, Iconsider those aspects of your offending may not have been sufficient to elevate thegravity of the offending to the point where s 104 was engaged. When the taunts youmade to Crystal and the presence of the children are added to the mix, however, Iconsider the position to be different. The taunts to Crystal as you beat her with thebrick added a further element of depravity and callousness to the brutality alreadyinherent in the physical act. Furthermore, the children were not only present whenyou attacked Crystal, but two of them also tried to no avail to stop you. The fact thatyou carried out this attack in the presence of, and in the face of opposition by, thechildren takes the callousness and cruelty of your offending to another level. It isdifficult to see how any father could subject his young children and their friends toseeing and hearing conduct such as this. I therefore consider s 104 is engaged on thisbasis.[30] The next issue to determine is whether it would be manifestly unjust to imposea minimum term of imprisonment of 17 years when the minimum term wouldotherwise be 15 and a half years. This requires the Court to stand back and determinewhether your offending falls within the type of offending for which s 104 is designed.I have concluded that it does but for one factor. If I was to impose a sentence of 174 Sentencing Act 2002, s 104(1)(e).5 Section 104(1)(g).6 R v Slade [2005] 2 NZLR 526 (CA) at [40].years imprisonment you would receive no credit at all for your guilty plea. I considerthat outcome would be manifestly unjust in this case because your plea has had thevery real benefit of sparing your family the need to go through the ordeal of a jury trialin which several of them may have been required to give evidence against you.[31] I also consider the factual situation in the present case is similar to that in therecent judgment of the Court of Appeal in Vea v R.7 In that case the appellant hadpleaded guilty at an early stage to a charge of murder. Section 104 was engagedbecause the offence had been committed after the appellant had broken into thevictim's home and lain in wait to confront him with a machete. The sentencing Judgehad selected a starting point for the minimum term of 17 and a half yearsimprisonment. He then allowed a discount of 12 months to reflect the guilty plea.This produced a minimum term of imprisonment of 16 and a half years. The Judgefound that it was not manifestly unjust to impose the minimum term of 17 yearsimprisonment required by s 104 rather than the 16 and a half years he would otherwisehave imposed.[32] The Court of Appeal upheld the starting point but held that an effectivediscount of just six months would give the appellant very little credit for the earlyguilty plea. It considered the plea, coupled with credit for remorse and efforts to atonefor the offending, should have been marked by a reduction of two years.8 The Courtthen held that it would be manifestly unjust to impose a minimum term of 17 yearsimprisonment when a minimum term of 15 and a half years imprisonment wouldotherwise have been appropriate.9[33] I find myself in exactly the same position in this case. You entered your guiltyplea at the very earliest stage. You have also expressed your remorse. I consider itwould be manifestly unjust for you to be required to serve a minimum term ofimprisonment of 17 years when ordinarily you would be required to serve a minimumterm of 15 and a half years before being eligible to apply for parole.7 Vea v R [2020] NZCA 68.8 At [23].9 At [24].Sentence[34] Mr Peeni, on the charge of murder to which you have entered a guilty plea, youare sentenced to life imprisonment and you are ordered to serve a minimum term of15 and a half years before being eligible to apply for parole.[35] Stand down.Lang J