Decision by Heath J in R v Mason  [2012] NZHC 1849, Tauranga 27/7/12

Background

This case involved M’s sentencing for murder and attempted murder, after he pleaded guilty.  M was a 42 year-old Maori who was angry and bitter about the way in which a pakeha (European) victim, Kate Brown (“K”), had ended a long-standing relationship with him, and hurt at the way in which her family had treated him and his family. He blamed the Brown family for the break-up of his relationship, felt insulted and humiliated by what had happened, and a sense of whakama (shame/embarrassment) stayed with him until the offending occurred. His anger boiled over one night about three years after the end of the relationship, when he broke into K's family home and stabbed her mother to death, then attacked K, inflicting grievous knife wounds but not killing her.

Before sentencing M the Court had given directions to enable a hui (gathering or assembly, usually on a marae, a communal or sacred place serving religious and social purposes) to be held, to discuss what had occurred and to give him an opportunity to explain his actions. K and her family were invited to attend, but they elected not to participate.

(Previously, in R v Mason [2012] 2 NZLR 695, M unsuccessfully challenged the Court's jurisdiction, by applying for an order that he should be should be dealt with in accordance with tikanga Maori (Maori culture/custom).

Held

Cultural considerations were relevant to criminal sentencing, but they had little weight. There could be only one penalty, life imprisonment, but cultural considerations impacted on the length of any minimum term of imprisonment (MPI), and the Court took them into account as far as that was concerned.

One law for all

While cultural values are relevant, there is one law for all in New Zealand, nobody is above the law, and all are subject to the same sanctions for criminal offences. There was no objective evidence of any racism or hatred in the Brown family's attitude towards M, and the Court suspected that he had come to honestly believe something that was objectively false; while many New Zealanders are still coming to grips with cross-cultural issues, clearly those who live at the crossroads of the two cultures tend to see the world in different ways.

Understanding given but no justification allowed

The Court accepted that tikanga (culture/cultural value) is a living concept, and accepted the importance of wairua (spirit) and the ties of whanaungatanga (kinship/family connection) that exist in te ao Maori (the Maori world). It understood why M regarded what he perceived as K's rejection with a sense of shame and unworthiness, and accepted the various conditions of whakama (shame/embarrassment) which he went through: all of that explained the lead up to the tragic events but were not an excuse for his behaviour, still less any justification.  Tikanga Maori emphasises notions of reconciliation and reciprocity, which are relevant to the sentencing process, but they could not drive it.

Life sentence appropriate

The whole community also has an interest in seeing that Courts respond appropriately and consistently to offending by people who commit similar offences. As far as the Court was aware, there has never been any debate, whether by Maori, pakeha, or otherwise, about the use of a presumptive life sentence for murder; to recognise the sanctity of human life it has always been considered an appropriate community response. This sentence required by New Zealand statutes is one that responds adequately by the community to particular wrongdoing.

Circumstances demanded minimum term of not less than 17 years 

The case plainly fell into the category in which a minimum term of not less than 17 years was appropriate under s 104(1) Sentencing Act 2002. Two factors made that clear:

1. the offending occurred during a home invasion late at night, and
2. the high level of brutality and callousness.

There was also a third factor that might be termed an exceptional circumstance, i. e. M committed both murder and attempted murder.

There was no provocation towards M, or any excuse for his despicable and inhumane acts. He had brought unimaginable grief and sorrow on the Brown family, which he described as “an extension of me and my whanau (family) ”, and shame on himself, his iwi (tribe), and his whanau. 

Final sentence

Balancing M's acceptance of responsibility, guilty pleas, and personal circumstances with his record of prior violent offending and the violence in this case, there was no need to increase the MPI beyond 17 years. M was sentenced on the charge of murder to life imprisonment with a MPI of 17 years, and on the charge of attempted murder to a concurrent term of 10 years' imprisonment. He was then warned under the "three strikes" regime.