IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-019-746 [2013] NZHC 1540

THE QUEEN

v

ANDRON MAX MCDONALD

Charge:

Plea:

Murder

Not Guilty

Counsel:	L Dunn for Crown
MJ Robb for Prisoner

Sentenced:	25 June 2013

SENTENCING NOTES OF BREWER J

Solicitors:	Almao Douch (Hamilton) for Crown
Mike Robb (Hamilton) for Prisoner

R v MCDONALD [2013] NZHC 1540 [25 June 2013]

Introduction

[1]       Mr McDonald, the jury found you guilty of the murder of Jason Kerr.  I have to sentence you accordingly.

Facts

[2]       I do not need to go much through the facts.  They were put before the jury in detail at your trial.

[3]       You spent much of 6 February 2012 drinking.  You got drunk and you got violent.   You attacked your girlfriend and she left.   You then took out your frustrations on a fence, pulling a segment to the ground.  Your family was worried about you.  An uncle came and took you for a drive and tried to calm you down.  But you were clearly still influenced by drink.

[4]       Back  at  the  flats  you  encountered  Mr Kerr.    The two  of  you  had  been drinking earlier.   There was no history of animosity between you, but something happened and the two of you started fighting.   At first it didn’t seem too serious. Your neighbour, Mr Donovan, saw the two of you outside his flat essentially pushing and shoving each other.   But then things became much more serious.   Witnesses described seeing and hearing extreme violence on your part.

[5]       The evidence of the pathologist, Dr Stables, was that there were a minimum of 12 blows to Mr Kerr’s head.  These resulted in multiple fractures.  There was no indication of any defence being put up by Mr Kerr, who was 5 ft 10 and weighed only 68 kgs.   You knocked him unconscious and he died quite quickly from a combination  of  factors.    Essentially,  he  asphyxiated  through  obstruction  of  his airways by his blood.

The law

[6]       The  law  is  that  in  these  circumstances  I  must  sentence  you  to  life imprisonment.   Your lawyer will have explained to you what a sentence of life imprisonment means.  But for the benefit of the whanau of Mr Kerr here today, I will spell it out.

[7]       A sentence of life imprisonment means that, save for one factor, you will spend the rest of your life in prison.  The saving factor is this: if at some point in the distant future the Parole Board can be satisfied that keeping you in prison is no longer necessary to protect the community from you then it can release you on parole.   Even then, if you were released on parole, that does not mean that the sentence of life imprisonment no longer applies.  It will always apply until the day you die.  Parole just means that you would be let out of prison on condition of good behaviour.  If you were released on parole and caused the authorities any concern, you would simply go back to prison to keep serving your life sentence.

[8]       The law requires me to set a minimum period of imprisonment before you can be considered by the Parole Board for parole.   In a case such as yours, the minimum period of imprisonment must be at least 10 years.   That is what your lawyer argues for.   The Crown says I should look at cases similar to yours and impose a minimum period of imprisonment of 11 years.

[9]       In deciding that you must receive a sentence of life imprisonment and that there must be at least a period of 10 years before you can be considered for parole, I have   taken   into   account   the   nature   of   your   offending   and   your   personal circumstances.  I have read the letter you wrote to me.  I accept that you feel remorse for the death of Mr Kerr.  I accept that you finally understand how drink affects you. But drink is not an excuse for your behaviour, and the consumption of alcohol cannot excuse what you have done.  That is something else that you need to realise.

[10]     You are aware of the harm that you have caused.  You have just listened to members of Mr Kerr’s  whanau  read  out  their victim  impact  statements,  and  in addition to that I have read the victim impact statements of Michelle Gray and Chuck Paul, both siblings of the deceased.   You have appreciated how terrible is their loss, how raw their grief and how angry they are with you.   Yet they have conducted themselves in Court today with great dignity and they deserve praise for that.

[11]     Mr McDonald, this Court is not a Court of revenge.  Nor does justice under our system give effect to the Old Testament injunction of “an eye for an eye” and “a

tooth for a tooth”.  There is no sentence that I can impose upon you that will make up for the death of Jason Kerr.  There is no sentence that I can impose upon you that will have the members of Mr Kerr’s whanau leave this Court happy.  That is simply impossible.  Mr Kerr is dead.

[12]     Instead, the law requires me to hold you accountable for the harm you have done to the community and to your victims, to promote a sense of responsibility in you for that harm and to provide, as far as I can, for the interests of your victims.  I must also denounce your conduct and reflect the need to deter you and others from committing the same or similar offences.   A highly relevant factor is the need to protect the community from you.

[13]     On this basis, it seems to me that I must take into account your record of previous violent offending.   From 2001 until 2010, you were convicted on five separate  occasions  of  eight  charges  of  violent  offending.    In  2006,  you  were sentenced to one year nine months’ imprisonment for attacking your partner on more than one occasion.   They were serious assaults.   She was hospitalised on one occasion.   This record is reflected in the pre-sentence report which concludes that you are at a medium risk of re-offending and you are a high risk of harm to others.

[14]     I will uplift the minimum period of imprisonment by one year to take account of your record of violence to others.

[15]     Standing back and looking at your situation in the round, I am satisfied that

11 years is the appropriate minimum term of imprisonment that should be imposed in your case.

Sentence

[16]     Mr McDonald, you are sentenced to life imprisonment.  The minimum term of imprisonment is 11 years.  Stand down.

Brewer J