Ambach v The Queen
[2011] NZCA 93
•24 March 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA621/2009 [2011] NZCA 93 |
| BETWEEN FERDINAND AMBACH |
| AND THE QUEEN |
| Hearing: 4 August 2010 and 8 March 2011 |
| Court: Ellen France, Gendall and Courtney JJ |
| Counsel: Appellant in person at hearing, with G J King post hearing |
| Judgment: 24 March 2011 at 10.30 am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
REASONS OF THE COURT
(Given by Ellen France J)
Introduction
The appellant was charged with the murder of Ronald Brown. He was found guilty of manslaughter after trial. On 18 September 2009, the appellant was sentenced by Winkelmann J, who had presided over the trial, to 12 years imprisonment with a minimum period of imprisonment (MPI) of eight years.[1]
[1] R v Ambach HC Auckland CRI-2007-004-27374, 18 September 2009.
The appellant appeals against sentence on the basis it is manifestly excessive. He raises a number of matters in support of his appeal. First, he says there were matters reducing his culpability which have not been taken into account by the Judge. Secondly, he says the sentence should be adjusted to reflect the fact that if he had been advised he could offer to plead to manslaughter prior to trial, he would have done so.
The appeal proceeded in two stages. Initially, after legal aid was declined, the appellant represented himself.[2] At the initial hearing the appellant said, for the first time, he had not realised that he could have pleaded (or offered to plead) guilty to manslaughter. After hearing the other matters, the appeal was adjourned to enable the Crown and Mr Ambach the opportunity to make further enquiries about this aspect, provide any relevant information on the point to the Court and for further submissions if necessary.[3] In this phase of the proceedings, the appellant has been represented by Mr King.
[2]For more detail as to the history of the proceedings see direction of 22 January 2010 and minute of 11 June 2010.
[3] The details of the process are set out in the minute of the Court of 6 August 2010.
We add that the appellant was assisted at the initial hearing before us by Ms Szentirmay, the honorary counsel to Hungary. At the second hearing, Ms Szentirmay was formally appointed as an interpreter as no other Hungarian speaking interpreter was available. We are grateful for her assistance.
Factual background
The appellant was born in Hungary. He came to New Zealand in 2007 for a working holiday and to improve his English.
The appellant met Mr Brown, who was 69 years old, at a bar and bistro in Onehunga where both men lived. They had a drink together before leaving the bar with the intention of continuing drinking at Mr Brown’s home. The two men bought some beer on the way. At Mr Brown’s house they continued drinking. The Judge noted that the evidence at trial suggested the appellant had a couple of beers and then two bourbon and cokes. At trial, the appellant said the drinks were strong.
The appellant’s evidence was that after the first bourbon and coke, Mr Brown made a sexual advance by touching the appellant on the thigh. The appellant rejected that advance and the two continued drinking amicably. Mr Brown later made a further sexual advance while the two men were standing. The Judge described this as “a fleeting touch for no more than a second” during which Mr Brown grabbed the appellant’s shoulder and touched his groin area through the appellant’s clothing.[4]
[4] At [1].
It appears likely that it was shortly after this that the appellant was seen outside Mr Brown’s address by a neighbour. The appellant was trying to get back in and ultimately smashed the door in. By then it was about 11.45 pm. The neighbour spoke to Mr Brown on the phone and Mr Brown asked him to call the police. Soon after, things inside the house became “chaotic”[5] with loud noises audible from some distance away.
[5] At [2].
Winkelmann J observed that because the appellant says he cannot recall what happened and because of the general confusion, “what exactly happened is probably forever going to remain a mystery”.[6] However, the Judge continued:
[3] ... my understanding of the forensic evidence and the injuries inflicted on Mr Brown suggest to me that the attack on Mr Brown commenced downstairs. Then at some point Mr Brown went upstairs. It was when he was coming back downstairs, perhaps while he was standing on the stairs, that [the appellant] inflicted the fatal attack with a banjo, ... a heavy instrument made of wood and metal. The banjo broke, but [the appellant] continued [his] attack with it and at some point [he] also struck Mr Brown with a dumb bell weight.
[4] The forensic evidence at trial strongly suggested that Mr Brown was struck about the head seven or eight times. As a consequence of [the appellant’s] attack on him, his skull was fractured, he had an 11 centimetre laceration on his chin which went all the way through to his mouth, a 5 centimetre cut on his cheek, and his face was bruised and swollen. He also had extensive bruising on the upper part of his chest, there was bruising on his back, extensive bruising on both the upper parts of the arm and on the left arm there was a laceration, there were bruises on his left hip, and a fracture of the bone which is part of the Adam’s apple. According to the forensic pathologist this is the kind of injury caused by the application of pressure to the neck.
[5] [The appellant] left Mr Brown probably already lying unconscious on the stairs, but not before taking the broken neck of the banjo and inserting it into his mouth which obstructed his ability to breath. [The appellant] then went upstairs and continued [the] demolition of the house, which [the appellant] had already started downstairs. Upstairs [the appellant] overturned furniture, ripped fittings from the walls including tearing the bathroom basin and cabinet from the wall. [The appellant] smashed large windows in an upstairs bedroom and threw items of furniture and Mr Brown’s personal possessions out of the window. The items thrown out of the window included the frame of the double bed and the bed itself. [The appellant] also continued [his] attack on Mr Brown by throwing objects at him as he lay prone on the stairs, some of those objects landed on him. In fact [the appellant] threw so many objects onto the stairs, that [he] effectively blocked the stairway.
[6] When police arrived, Mr Brown was unconscious on the stairs with very serious head injuries. He still had the broken neck of the banjo in his mouth. [The appellant was] standing at an upstairs window throwing items out. The Police spoke to [the appellant] and [he] responded coherently and appropriately to their questioning. [The appellant was] detained and taken away.
[7] Mr Brown was taken to hospital where he died a few days later from the head injuries [the appellant] had inflicted upon him.
[6] At [3].
At trial, the appellant advanced three defences, namely, automatism, intoxication and provocation. The defence of automatism was based on the claim Mr Brown spiked the appellant’s drink with some drug, most probably Lorazepam. At the end of the Crown and defence cases, Winkelmann J ruled that automatism should not be left to the jury.[7]
The approach to sentencing
[7] R v Ambach HC Auckland CRI-2007-004-27374, 10 July 2009.
In deciding on the appropriate approach to sentencing, Winkelmann J had to consider the defences run by the appellant at trial. The Judge focused on the defence of provocation. Provocation was left to the jury on two bases. The first was that the sexual advance from Mr Brown was limited to touching the appellant on his thigh and briefly touching his groin area. The alternative act of provocation was that the appellant had been the victim of a rape and/or attempted rape. The latter possibility was first raised by the appellant’s counsel in closing.
The Judge noted that the difficulty for the jury and for the Judge in sentencing was that the appellant provided no “clear narrative” of what took place because he said he had little memory of what occurred from the time he was touched by Mr Brown until the police arrived.[8]
[8] At [21].
The Judge said that given the number of blows and their force, she was satisfied that it was most unlikely that the jury reached their decision on the basis of lack of murderous intent. The Judge put it this way:
[22] ... [The appellant’s] actions on the evening were consistent with an attempt to annihilate Mr Brown and everything associated with him as evidenced by [the] destruction of his house and his belongings. The attack was so prolonged and violent that even though [the appellant was] intoxicated it is difficult to imagine that [he] would not have appreciated the likely outcome of [his] actions. It follows that the most likely basis for the jury’s decision was the partial defence of provocation.
The Judge then had to decide what the act of provocation was. For reasons we come back to, Winkelmann J rejected the suggestion that the appellant had been provoked by a serious sexual assault. Instead, the Judge sentenced the appellant on the basis that provocation was no more than the touch to the thigh, perhaps repeated once, and the brief touching of the groin area through the clothing. Winkelmann J saw this as being at the very lowest level of provocation capable of constituting provocation at law and of extremely short duration. The Judge also considered it was likely to have occurred some time before the ultimately fatal attack.
Winkelmann J said that these factors suggested a starting point towards the upper range of cases identified in this Court’s decision in R vEdwards.[9] The Judge then identified a number of aggravating factors. The first of these was the nature of the attack and particularly the “great brutality”.[10] The second factor was the element of cruelty in the appellant’s actions. This was reflected in the fact that the neck of the banjo was inserted into Mr Brown’s mouth in a further attempt to humiliate and degrade him. The third factor was that, even after Mr Brown was lying seriously injured on the stairs, the appellant continued to throw objects at him from upstairs. Instead of seeking medical help, the appellant continued to try and hurt him. Finally, because of his age and his physical condition, Mr Brown was vulnerable.
[9] R v Edwards [2005] 2 NZLR 709.
[10] At [30].
Winkelmann J rejected the submission that the appellant was still in a state of loss of self-control at least until the police arrived. The Judge saw this as inconceivable given the period of time that was involved.
With these factors in mind, the Judge adopted a starting point of 13 years imprisonment. That was discounted to take into account the appellant’s lack of previous convictions, and otherwise previous good character. The sentence was reduced by 12 months on account of these mitigating factors leaving a finite sentence of 12 years. Her Honour said there was no remorse to be taken into account because the appellant was not remorseful.
The Judge was satisfied that the actions involved “extreme violence” and a level of callousness calling for the strongest possible denunciation.[11] An MPI of two thirds of the sentence, that is, eight years, was accordingly imposed.
Issues on appeal
[11] At [39].
It is convenient to deal with the matters raised on appeal under the following headings:
(a) Whether the Judge ignored other explanations for the events;
(b) The pre-sentence report;
(c) Whether there were other mitigating factors;
(d) The starting point; and
(e) The MPI.
Other possible explanations
Under this heading we need to consider the appellant’s submissions about his memory of events; the possibility his drink was “spiked” with a drug called Lorazepam; Mr Brown’s conduct; and the significance of the appellant’s denial of any sexual assault when he was examined by Dr Ong the day after Mr Brown had been assaulted.
The appellant’s memory of events and the possible impact of Lorazepam
The appellant argues that the sentence imposed would be fair only if he had knowingly attacked Mr Brown. He says he does not remember attacking Mr Brown and suggests his drink may have been spiked with Lorazepam as a possible explanation for actions which the appellant says are out of character.
The appellant relies on evidence that Lorazepam, especially in combination with alcohol, can have paradoxical effects. In other words, instead of having its usual sedative effect, the user may experience the opposite effect.
These matters were the subject of considerable evidence at trial. We take first the submissions relating to the appellant’s lack of recall.
The appellant in his testimony at trial talked about what he could and could not remember. His lack of memory does not alter the impact on sentence of the various aggravating factors identified by the Judge.
As to the possibility the appellant’s drink was drugged, the various matters the appellant raises on this appeal such as how much the two drank, the fact no blood sample from him was taken until over 20 hours after the incident, and the description of the pupils of his eyes as “dilated” the next day, were also all dealt with in the evidence. We need to address the relevant evidence in a little more detail.
The only potentially intoxicating drug in Mr Brown’s house was a bottle of the prescription medication Lorazepam. It had been prescribed to Mr Brown for anxiety. One tablet, a low (one milligram) dose, was missing from the bottle.
Dr Ian Goodwin, who gave evidence for the defence, said that benzodiazepines like Lorazepam may have paradoxical effects such as irritability, hostility and excitability. Dr Cameron Rosie and Professor Mellsop, who were Crown witnesses, said they had not seen those effects but Professor Mellsop accepted there was a reasonable medical evidential basis for such a paradoxical reaction. He gave two reasons though for being cautious about this possibility. First, he said that the evidential basis was not unequivocally established and secondly, the literature indicated this effect was more likely with a larger dose and where there are “significant personality or personal contributions” from the person taking the drug.
No Lorazepam was found in the appellant’s blood sample. Dr Goodwin, Ms Kappatos (a forensic scientist from ESR), and Professor Mellsop could neither exclude the possibility nor prove the appellant had been under the influence of Lorazepam because of the time delay. However, Professor Mellsop considered the drug could still be detected in the blood after 20 hours or more. Dr Goodwin and Ms Kappatos said that for a lower dose it was unlikely that the drug would be found in the blood after that period. Ms Kappatos said she would expect a high (ten milligram) dose still to be detected in a blood sample.
Dr Goodwin also said Lorazepam is very poorly soluble in water so if crushed into a drink it would leave some sludge. There was no sludge or residue noted in the forensic examination at the scene. Ms Kappatos’ evidence was that two glasses found at the scene were tested for the majority of medicinal drugs that affect the mind, alter mood or cause sleep, including Lorazepam. No such drugs were detected. In the circumstances, as Ms Inwood, who argued this part of the appeal, submits, the evidence of the forensic examination of the glasses assumed some importance.
As to the appellant’s dilated pupils and bizarre behaviour, the high point of the evidence was that drug ingestion was one possible cause, as was alcohol consumption and aggression.
In rejecting the submission at sentencing that the appellant’s drink may have been spiked, Winkelmann J considered the evidence including that of the experts from both the prosecution and the defence. Her Honour was well placed to assess these matters and the approach taken is consistent with jury’s verdict. In addition, our review of the evidence leads to the same conclusion.
Accordingly, there was no error in the Judge’s analysis of these matters on sentencing.
Mr Brown’s conduct
The appellant says there was evidence to show Mr Brown led a dual life. On the one side, the persona he presented to family and on the other, the “continually drunk” homosexual who tried to form relationships with young men. In addition, the appellant says that when asked by Dr Ong whether he had been the subject of a sexual assault, he said no out of embarrassment. Underlying these two points is the proposition that the Judge was wrong to conclude the provocation was at the low end of the scale.
The jury heard evidence about Mr Brown’s character when intoxicated from his friends, family, a co-worker and owners of gay venues he patronised. Winkelmann J said this evidence indicated that Mr Brown was not a violent person. Her Honour continued:
[26] ... Although when he had had a few to drink he could express strongly held political views, he was regarded by people as a gentle man and a gentle drunk. He was not known to be aggressive and he was not known to be aggressive in sexual matters.
On this basis, it is difficult to see how the provocation could be anything other than as described by the Judge. Further, to the extent that Mr Brown’s personality is advanced as a separate matter then, as Ms Inwood points out, none of this constitutes provocation relevant to this offending as it was not known to the appellant at the time.
The possibility of a sexual assault
As to the possibility of a sexual assault, Winkelmann J considered this aspect in some detail in the sentencing remarks. Her Honour observed that the appellant’s counsel at trial, in support of this theory, relied on the semen staining on a sheet from the bed frame the appellant had thrown out of the window. The appellant’s counsel also referred to semen staining on the inside of Mr Brown’s underpants and trousers, the presence of human faeces, two small smears near the crotch on the appellant’s trouser legs and some smears downstairs.
Winkelmann J’s conclusion on this point was as follows:
[24] I am satisfied that this scenario put forward by [the appellant’s] counsel is a most unlikely basis for the jury’s verdict. The reliance on the evidence of semen staining on the sheets was dealt with in the forensic scientist Ms Walton’s evidence. She said that the two sites of semen staining on sheets were of mixed DNA profile, the major donor to that being Mr Brown and the other being from another individual, not [the appellant]. As to the semen staining on Mr Brown’s underpants and trousers, the evidence of the scientist was that it is common to find semen staining on the clothing of male individuals.
[25] In relation to the faecal material, the only items that were found to be soiled were the underpants and trousers of Mr Brown and there was very little evidence of any faecal material on [the appellant]. That is inconsistent with the scenario put forward by [the appellant’s] counsel. Moreover [the appellant has] never given any or made any statement that supports this claim, either in [his] statement to the Police or in [his] evidence in Court. There is the evidence of Dr Ong, the police doctor, that when he asked [the appellant] if [he] had been sexually assaulted [he] denied that [he] had. [The appellant] was also examined in hospital because of an injury [he] inflicted on [himself] in the course of smashing windows and again ... did not raise with the doctors or nurses that [he] had been sexually assaulted. No injuries consistent with a sexual assault were observed on [him].
The Judge’s conclusions on this matter were inevitable. The claim now advanced by the appellant that he was embarrassed when asked about the matter by Dr Ong does not explain his silence on the topic when giving evidence.
We are satisfied there is no merit in the submission the Judge ignored other explanations for the events.
The pre-sentence report
Two issues need to be dealt with under this head. First, the appellant says there is no basis for the statement in the pre-sentence report that he was wanted in Hungary for tax fraud. Secondly, the appellant raises a number of matters which he says mean he did not take the opportunity provided by the interview with the pre-sentence report writer to explain his position. In particular, he says that he did not understand quite what a pre-sentence report was. He also says he was concerned the interpreter had some link with the Hungarian police. In this context, the appellant highlights problems he had with his lawyers, particularly his initial lawyer, his resultant lack of trust in officials, and his difficult situation given his isolation from his family.
On the first point, Winkelmann J expressly said she did not take into account the issue of the information about the tax evasion.[12]
[12] At [8].
As to the second point, there were two pre-sentence reports. The appellant initially declined to be interviewed as he wanted his lawyer present, so a report was prepared without his input. He was subsequently interviewed with an interpreter present, the purpose of a pre-sentence report having been explained to him. The sentencing remarks indicate that the Judge only took into account the fuller report. Apart from the questions about further mitigating factors which we discuss as a separate issue, the appellant does not point to other matters that may otherwise have been important in terms of the pre-sentence report.
Mitigating factors
Three points arise under this heading. First, the appellant explains his lack of emotion throughout the trial as reflecting his lawyer’s instructions not to react. Secondly, he provided this Court with a letter apologising to Mr Brown’s family for causing Mr Brown’s death. In addition, he has provided numerous letters as to his good character from family and friends and from the prison making it clear he has not had any disciplinary problems there. Finally, the appellant raises the point we have referred to earlier about his understanding of his ability to offer to plead.
Neither of the first two points gives rise to any issue affecting the Judge’s approach to sentencing. The appellant’s counsel at sentencing submitted that language difficulties may, in part at least, have contributed to a mis-understanding about remorse. Counsel said that the appellant was sorry for everyone involved but accepted the appellant continued to deny responsibility for his actions because he believed his drink had been spiked.
We need to address the third point in more detail.
The evidence
The appellant filed an affidavit and was cross-examined. His evidence on this aspect is that he was not advised by any of the three lawyers who represented him that he had the option of offering to plead guilty to manslaughter. Further, he says that if he had been told this was an option, he would have offered to plead guilty to manslaughter.
When the appellant was initially charged in relation to Mr Brown’s death, he was represented by James Faleauto. Mr Faleauto has since been struck off for serious misconduct. The misconduct included obtaining money from the appellant’s family for his legal costs despite the appellant being legally aided. We understand that it has not been possible to locate Mr Faleauto. We accept Mr King’s submission we should proceed on the basis Mr Faleauto did not advise the appellant he could offer to plead guilty to manslaughter.
Paul Dacre was then approached to advise the appellant. He ultimately appeared at trial for the appellant but, essentially, as second counsel to Peter Kaye. Mr Dacre says he did not advise the appellant of the option to offer to plead or of the potential sentencing impact of a willingness to plead guilty to manslaughter. Mr Dacre explains he did not consider it appropriate to raise this option with the appellant because it was inconsistent with the appellant’s instructions. In particular, that he should not be in custody, he was innocent of any criminal involvement and he was in fact the victim of Mr Brown.
Mr Kaye’s evidence is that it is his usual practice, even in “extreme cases” such as this one, to advise his clients of the option to offer to plead. However, he has no specific recollection of doing so in this case.
We also have evidence from Eva Zombori who was employed by the Legal Services Agency as an interpreter over the period from December 2007 to September 2009 in relation to the prosecution of the appellant. She did not make notes of meetings she attended between the appellant and his three defence lawyers. But she deposes that she does not recollect any of the three suggesting to the appellant that he plead guilty to manslaughter. She confirms Mr Dacre’s recollection of the appellant’s instructions, that is, he had no recollection of the events and he was innocent of any criminal involvement in Mr Brown’s death.
Discussion
Mr King submits that we should accept that the appellant was not advised of the option of offering to plead and that he would have made an offer if so advised. It is accepted that any offer to plead to manslaughter would have been rejected by the Crown but Mr King says the appellant should get some credit for his willingness to plead. He submits that one way in which that willingness might be reflected is by cancelling the MPI.
Given the nature of the defences advanced at trial, there is a sense in which it would be surprising for Mr Kaye to depart from his usual practice. However, given Mr Kaye cannot recall giving the advice and the support Ms Zombori’s evidence gives to the appellant’s position, we consider we should proceed on the basis that although the appellant was advised about the difference between murder and manslaughter, he did not receive advice that he could offer to plead to the latter charge.
We do, however, part company with the second limb of the submission advanced by Mr King. We do not accept that the appellant would have offered to plead even if advised of the option to do so. The factors identified by Mr Dacre as the reasons why he did not advise the appellant of the opportunity to offer to plead are relevant to our conclusion. But, more importantly, it is plain that the appellant considered acquittal was a real option. He advanced automatism, which would have been a complete defence, called expert evidence on the defence, and remained committed to that course until the Judge ruled that she would not leave this defence to the jury. It is not conceivable that he would nonetheless have offered to plead to manslaughter.
Further, the position taken by the appellant before us is based on the proposition that if he had been advised that there was no evidence his drink had been spiked, and the consequences of that, he would have accepted that advice and made an offer to plead to manslaughter. That approach is inconsistent with the defence case at trial. Moreover, it is inconsistent with the other submissions made on the appeal which maintain the claim his drink was spiked. Nor does it fit well with the submissions on appeal which continue to cast aspersions on Mr Brown’s character.
Accordingly, we do not consider any failure to advise the appellant of the ability to offer to plead assists him on the sentence appeal. He would not have accepted that advice and so would not have been entitled to any credit for willingness to plead.
Starting point
Against this background, we consider no issue can be taken with the starting point adopted by Winkelmann J. Essentially, as the Judge said, this was a cruel and brutal crime for which the provocation was at the lowest possible level. It involved the use of weapons including the banjo and dumb bell weight and a fatal attack to the head. It was, as Winkelmann J observed, a case falling close to the murder end of the scale.[13]
Minimum period of imprisonment
[13]A similar comment was made by this Court in R v Blackmore CA29/05, 18 May 2005, where a starting point of 13 – 14 years had been adopted and an end sentence of 11 years upheld in a case where the level of provocation was minimal. The authorities discussed in that case and in R v Edwards [2005] 2 NZLR 709 (CA) do not suggest the sentence in the present case is out of line.
The appellant submits that because he will be deported to Hungary on his release, the MPI is not necessary. As counsel for the Crown submits, the protection of the community is only one of four purposes for which a MPI might be required. We see no basis for interfering with the Judge’s assessment that the extreme violence involved called for strong denunciation. An MPI was appropriate to meet that purpose. The fact deportation is probable does not affect the approach to be taken in this case.[14]
Disposition
[14] See R v Ondra [2009] NZCA 489 and R v Zhou [2009] NZCA 365.
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
3
0
0