IN THE COURT 0Fl\ ZEALA REGISTRY CRI-2011-009-014294 TIIE QUEEN GAVIN JOIIN GOSNELL IIearmg 5 June 2013 Appearances IIawes for Crown Ruane as Amreus Pnsoner represents h|mself Judgmenl 5 June 2013 SENTENCE 0F Gavm Gosnell, at trral ayury found you gurlly ofmurdermg IIayden Mrles on 22 August 201] You had proffered a plea of to manslaughter but the Jury deerded Ihat It was murder Earher you had pleaded to a charge of causmg Io Mr Mrles' body You now appear for sentence I should record Ihat mornmg there were unexpected developments You mdreated thal you mshed to your lauyery Mr Ruanej and havmg heard Ihat request I accepted that you were enmled to do so But I then appomted h|m as amreus As a resull of Ihat developmenl I have heard th|s mornmg from both Mr Ruane and you [by ofa letIer thal you have read to the Court) GUSNELHZUIH NZHC 1313 wane 2013] [3] In your letter to the Court you have indicated that you intend to appeal, which is, of course, your right. You have advanced criticism of Mr Ruane which I have suppressed in the terms I have already announced. You have also referred to other matters that I do not need to mention at this stage. Facts [4] As far as the facts are concerned, I have to say to the family and friends that it is unfortunately necessary during a sentencing process such as this for me to go into the facts again. I know that this means that you will be re-living not only the horror of the murder itself but also the trial. Unfortunately this is unavoidable. [5] Hayden Miles was a friend of Nicolette Vaux-Phillips who was your then partner. Hayden was 15 years of age. [6] Late on the afternoon of 22 August 2011 the three of you had been drinking at your flat. A decision was made to go into the village and Hayden was to obtain liquor from Countdown. After he obtained the liquor he was robbed of his ipod and cell phone by a third person. You ended up with the cell phone, and you had pointed out Hayden to the person who robbed him. [7] Fortunately at that time Hayden’s injuries from the robbery were not severe, but he was obviously highly distressed. Through the goodwill of a citizen he was able to borrow her cell phone and ring his mother in a very distressed state. [8] Tragically he then went back to your flat. You and Ms Vaux-Phillips were drinking, and he joined you. At one point you said to him something to the effect that he should not be there. Ms Vaux-Phillips said that there was no reason for him not to be there. In other words she supported his presence. [9] Then Hayden said something to the effect that Nicolette was using you and did not like you. With this you seem to have flown into a terrible rage and begun a prolonged and violent attack on Hayden. [10] According to the evidence of Nicolette at trial, which I accept for sentencing purposes, you punched and kicked Hayden. You told him he deserved it. He was trying to cover himself up, and he was crying. More than once he tried to run away. But you pulled him back and hit harder. You told Hayden to go to the bathroom and clean himself up, apparently because you were concerned that the police might make a curfew check. You stopped and started the attack on Hayden on three or four occasions. [11] At one stage you had Hayden pinned to the ground. Nicolette’s evidence was that you were bending Hayden’s arms and legs and trying to break them. You told the police that you had “twisted him up” and “put arm locks and stuff on him just to make him hurt”. You admitted that he was screaming and you also admitted to the police that he was crying. [12] Nicolette’s evidence was that she tried to stop you. You admitted that. She also said that throughout this you were laughing and saying to Hayden that he deserved it. [13] Near the end you put him into a shower in the bathroom. By this time he was not breathing properly and according to Nicolette’s evidence was not really awake. In your statement to the police you admitted beating him up again. You told the police “I just wanted to hurt him, you know, to make him feel what I was feeling, you know, like, so yeah, while he was in the shower I grabbed a razor blade and told him to cut his wrists.” While he was in the shower you also told Nicolette to kick him. [14] In the end, Mr Gosnell, you dragged Hayden, naked, to the couch. You covered him with a blanket and left him. Next morning he was found to be dead. More than one witness described the extensive injuries to Hayden’s face the next morning. One witness could not tell whether Hayden was male or female. [15] The next morning you dismembered Hayden’s body using a knife and a jig saw. According to Nicolette’s evidence, which again I accept, you brought bits of Hayden into the room, laughing about it. There was blood everywhere in the lounge. [16] Dr Sage, the pathologist, gave evidence that Hayden’s right forearm was broken and his nose was broken. Of course, all of this is consistent with the brutality of the attack that you had launched. [17] Then, as a number of people have said this morning, there was the 111 day period of hope. It was a horrific ordeal for the family. But their hopes were dashed. He was found to be dead. Worse than that, his body had been dismembered and buried in different graveyards. Impact on Hayden’s family and friends [18] This is always a distressing component of a trial. As I have said, they are being forced to sit again through this horrific ordeal. A young life was taken, violently and needlessly. Parents, siblings, grandparents, other relatives and friends have been left without a loved one. [19] Numerous victim impact statements are before the Court. Only some of them have been read today. Without exception they have been prepared with enormous thought and great care, and I know that many of those making statements would have preferred to have been able to say more. [20] One thing that comes through in the reports is the loss of a loved child, grandchild, brother, relative, friend. Without exception the statements speak from the heart at the loss that has been suffered as a result of your actions, Mr Gosnell. They tell of a family that has been broken forever; the images of torment; the emptiness that will be left in so many hearts; and a grandmother’s disbelief that there are people amongst us capable of such a macabre and evil deed. Your circumstances [21] You are 28 years of age. You have indeed had a difficult life and you are estranged from your family. You have 60 previous convictions and have spent a lot of the last 14 years in prison. These convictions include what I might describe as low level violence such as assault and male assaults female. [22] The probation officer has recorded that you have many issues or problems facing you. At the forefront is a violent propensity coupled with alcohol and drug issues. You told the probation officer that you did not mean to kill Gavin but you did not have the tools to stop. Sentence [23] For murder I must impose a life sentence unless that sentence would be manifestly unjust. Of course there is no issue here about such a sentence being manifestly unjust, and shortly I will impose a life sentence on you. Minimum period of imprisonment [24] Under s 103(2) of the Sentencing Act 2002 you must serve at least 10 years minimum period of imprisonment. If s 104 applies you must serve at least 17 years unless that would be manifestly unjust. Applying Court of Appeal decision called R v Williams1 I have to ask myself three questions: first, does s 104 apply; secondly, if so, would 17 years be manifestly unjust; thirdly, if not, should the minimum period of imprisonment be more than 17 years. [25] As to the first question (whether s 104 applies), Mr Ruane, argued on your behalf that it does not. He submitted that this was not an intentional murder but a reckless murder. He relied on a decision called R v Callaghan2 to illustrate that your conduct on this occasion should not trigger s 104. [26] I take a different view. I am satisfied that three separate parts of s 104 apply. [27] First, the murder was committed “with a high level of brutality, cruelty, depravity or callousness” in terms of s 104(1)(e). While unfortunately every murder has those elements to some degree, I am perfectly satisfied that they were involved in this case to a high level. 1 2 R v Williams [2004] 21 CRNZ 352. R v Callaghan [2012] NZHC 596. [28] As to brutality, this was a prolonged and violent attack, especially to the head. As I have already said, there was evidence at trial that the next morning Hayden was unrecognisable and the pathological evidence confirmed the severity of the attack. In my view this was extreme brutality, repeated over and over. [29] Cruelty: you set out to be cruel. You were attempting, on the evidence, to break limbs, and it is scarcely believable that in the shower you gave him a razor blade to cut himself. [30] Depravity: the evidence is that you were laughing and enjoying this poor young man’s misery. There was a total absence of mercy on your part. He was cowed, frightened, tried to escape. There was no attempt by him to fight back. These were the actions of a bully in the ultimate extreme. [31] Callousness: well in every respect this was a heartless and despicable act. Having committed the assault you left Hayden to die a lonely death. [32] The second part of s 104 that I believe applies is paragraph (g) of subs (1): “the deceased was particularly vulnerable because of his or her age”. As Hayden’s mother said, he was only a boy. He was 15 years of age. He was no match for you and you knew it. As I have already said, he made no attempt to defend himself. Indeed he tried to escape. He was clearly vulnerable at your hands. [33] The third factor that I am satisfied applies in this case is paragraph (i) of s 104(1): “any other exceptional circumstances”. The desecration of Hayden’s body defeats belief. It is well established that events after a murder has been committed can be taken into account in deciding whether or not s 104 applies: R v Frost.3 The desecration of Hayden’s body was sickening in itself, but your apparent enjoyment is, as I have said, quite beyond belief. One of the worst features of the desecration is the impact that it has had on Hayden’s family and friends. [34] Having decided that s 104 applies, I turn to the second question: would it be manifestly unjust for you to be ordered to serve at least 17 years? Apart from the 3 R v Frost [2008] NZCA 406 at [40]. fact that you pleaded guilty to the desecration of the body there are really no mitigating features. I am perfectly satisfied that a minimum period of imprisonment of at least 17 years would not be manifestly unjust. [35] This brings me to the final question: what in all the circumstances, including your personal circumstances, should the minimum period of imprisonment be? Should it be more than 17 years? The Crown says that it should be at least 17 years. Mr Ruane disputed that s 104 applied, but said that if it did apply the minimum period of imprisonment should not be more than 17 years. [36] When considering this issue I need to take into account the total picture which, of course, includes your plea of guilty to the desecration. I need to adopt a sense of proportionality between the minimum period of imprisonment and the offending. Also in terms of the Sentencing Act I need to impose the least restrictive outcome. [37] A number of cases have been referred to by counsel, and I have already mentioned the decision cited by Mr Ruane: R v Callaghan. Cases that I have found particularly helpful are R v Weatherston,4 where there was a minimum period of 18 years; R v Cui,5 where there was a minimum period of 18 and a half years; and a Court of Appeal decision Pandey-Johnson v R,6 where a minimum period of 18 years was upheld. [38] I also keep in mind that in R v Baker7 the Court of Appeal indicated that if s 104 is engaged in three distinct respects a starting point of more than 17 years would generally be required. That is the case here. I have found that there are three distinct respects in which s 104 is engaged. [39] In my view the brutality of the attack, in terms of s 104 (1)(e), and the vulnerability of Hayden, under s 104(1)(g), would alone justify a minimum period of imprisonment of 17 years. It follows that when I take into account the third factor, 4 5 6 7 R v Weatherston HC Christchurch CRI-2008-012-137, 15 September 2009. R v Cui HC Auckland CRI-2006-004-018412, 6 December 2007. Pandly Johnson v R [2012] NZCA 595. R v Baker [2007] NZCA 277 at [23]. the desecration of the body, a minimum period of 17 years would be insufficient. The maximum penalty for desecration of a body is two years imprisonment. You have pleaded guilty to that charge, and I take that into account. In my view the appropriate minimum period of imprisonment is 18 years. [40] Now would you stand please and I will impose sentence. Sentences imposed [41] For murdering Hayden Miles you are sentenced to life imprisonment, and for offering indignities to his body you are sentenced to imprisonment for one year. You are to serve a minimum of 18 years imprisonment. I note that you have outstanding fines and reparation which, given the sentence that I have imposed, will be academic. They are remitted. [42] You are subject to the three strikes legislation and I am now going to give you a first warning. [43] Given your conviction for murder you are now subject to the three strikes law. I am going to give you a warning of the consequences of another serious violent conviction. You will also be given a written notice which contains a list of these serious violent offences. If you are convicted of any one or more serious violent offences, other than murder committed after this warning, and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event the Judge must sentence you to a minimum term of imprisonment. [44] Finally, as I have already indicated, I am lifting the interim suppression order concerning the chambers hearing that preceded this sentencing. Solicitors: Raymond Donnelly & Co, Christchurch C M Ruane, Christchurch Copy to Prisoner