BRAYDEN MARK WHITING-ROFF AND THE KING
[2024] NZCA 530
•18 October 2024 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA403/2023 |
| BETWEEN | BRAYDEN MARK WHITING-ROFF |
| AND | THE KING |
| Court: | Collins, Brewer and Osborne JJ |
Counsel: | P J Shamy KC and K M Barker for Applicant |
Judgment: | 18 October 2024 at 11 am |
JUDGMENT OF THE COURT
AThe application to adduce further evidence is granted.
BThe application for an extension of time to appeal against the sentence of life imprisonment is declined.
CThe application for an extension of time to appeal against the imposition of a minimum period of imprisonment of 12 and a half years is granted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Collins J)
Introduction
On 10 December 2018, Dunningham J sentenced Mr Whiting-Roff to life imprisonment with a requirement he serve a minimum period of imprisonment (MPI) of 12 years and six months before he is considered eligible for parole.[1] That sentence was imposed after Mr Whiting-Roff pleaded guilty to having murdered Mr McAllister in Invercargill on 7 June 2017. At the time of the murder Mr Whiting‑Roff was 20 years old.
[1]R v Whiting-Roff [2018] NZHC 3239 [sentencing notes] at [74].
Mr Whiting-Roff now applies for:
(a)leave to file further evidence from a psychologist and a psychiatrist in support of his application; and
(b)an extension of time to appeal his sentence. He does so primarily on the basis of this Court’s judgment in Dickey v R,[2] in which we quashed sentences of life imprisonment in respect of Ms Dickey, Mr Brown and Ms Epiha. Ms Dickey and Mr Brown were co-offenders with Mr Whiting-Roff.
Background
[2]Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405.
The murder of Mr McAllister occurred in the context of Ms Dickey, who at the time was 16 years old, wanting to extract revenge for Mr McAllister having allegedly sexually abused her several months earlier.
On the day he was murdered, allegations circulated that Mr McAllister had interfered with a young relative of Mr Brown. At the time, Mr Brown was 19 years old. That evening Mr Brown put a message on Facebook saying he wanted to find Mr McAllister. This message generated several comments including one from Mr Whiting-Roff in which he said that Mr McAllister was a “gonna”.
At approximately 8 pm, Mr Brown, Ms Dickey and a Ms Scheepers met and discussed a plan to find Mr McAllister in order to assault him. Another meeting occurred at approximately 10 pm between Mr Whiting-Roff, Ms Dickey and Mr Brown where it was planned that Mr McAllister would be lured to the ILT Stadium Southland carpark. At that meeting Mr Whiting‑Roff produced a hunting knife and indicated that he was going to kill Mr McAllister.
Soon afterwards Ms Scheepers sent Mr McAllister a text message inviting him to the Stadium for the purposes of having sex. Mr Whiting‑Roff, Ms Dickey, Mr Brown and three other people went to the Stadium. Ms Scheepers kept in touch with this group through text messages. At the Stadium Mr McAllister was alerted to the presence of Mr Whiting-Roff and his group. He attempted to run away but was apprehended by Mr Whiting-Roff and Mr Brown. Mr McAllister got to his car but was dragged from the vehicle and assaulted by Mr Whiting‑Roff and Ms Dickey. Mr Whiting-Roff began attacking Mr McAllister with a combination of punches and stabs to his body. At one point Mr McAllister managed to flee a short distance but he was caught by Ms Dickey who then held Mr McAllister while Mr Whiting-Roff continued to stab him. Towards the end of the attack, Ms Dickey said words to the effect that it was time to stop.
Mr Whiting-Roff stabbed Mr McAllister 14 times. He died later that night from those wounds.
When spoken to by police Mr Whiting-Roff said he had stabbed Mr McAllister because he was a “kiddy fucker” and that he wanted to kill Mr McAllister.
Ms Dickey promptly co-operated with police and provided information that led to the prosecution of another offender. She pleaded guilty and gave evidence for the Crown at the trial of Mr Brown and Ms Scheepers.
Ms Dickey and Mr Brown were sentenced by Dunningham J to life imprisonment with MPI’s of 10 years for their roles in the murder of Mr McAllister.[3] Ms Scheepers, who was found guilty of manslaughter, was sentenced to 12 months’ home detention.[4]
Dickey v R
[3]R v Dickey [2018] NZHC 1403; and sentencing notes, above n 1, at [75].
[4]Sentencing notes, above n 1, at [76].
The issue in Dickey was whether it was manifestly unjust under s 102(1) of the Sentencing Act 2002 to impose life sentences of imprisonment on Ms Dickey, Mr Brown and Ms Epiha (who had pleaded guilty to another unrelated murder). Ms Epiha was 18 years old at the time of her offending.
In Dickey, we affirmed that youth is a consideration that can be taken into account, along with other mitigating factors, in determining whether or not a sentence of life imprisonment is appropriate for young offenders convicted of murder.[5] We recorded in that case the Crown’s acknowledgment that:[6]
(a)Adolescent behaviour reflects the slow pace of the development of those parts of the brain that control higher-order executive functioning, such as impulse control, risk assessment and planning ability. Young people behave and react differently from adults due to biological rather than behavioural or personality factors. As Ms Brook for the Crown said, “[a]ll young people suffer from these cognitive deficits; and all will eventually develop fully to overcome them (assuming no cognitive impairment exists)”.
(b) Neurological development may not be complete until the age of 25.
(c)Young persons who commit serious offences frequently exhibit other characteristics which also tend to mitigate culpability, notably intellectual deficits, mental illness and experiences of abuse or other childhood trauma.
(d)Young people are more receptive to treatment and therefore have better prospects of rehabilitation than adult offenders, who find it more difficult to alter entrenched behaviours.
[5]Dickey v R, above n 2, at [177].
[6]At [86].
Recently in Lo v R,[7] this Court explained the essential elements of Dickey in the following way:
[40] In Dickey, this Court explained that, generally, youth alone is not enough to justify departing from a sentence of life imprisonment for murder.[8] Rather, in order to displace a sentence of life imprisonment, it is necessary to first assess the seriousness and culpability of the offending.[9] The court should then assess the combined effect of mitigating factors, including youth, in order to be satisfied that a sentence of life imprisonment would be manifestly unjust.[10] We accept, however, that although the circumstances of the offending and the offender will normally both be assessed, “one element might dominate the analysis in favour of dispensation under s 102”.[11]
[7]Lo v R [2024] NZCA 359.
[8]Dickey v R, above n 2, at [177].
[9]At [171].
[10]At [173].
[11]Van Hemert v R [2023] NZSC 116, [2023] 1 NZLR 412 at [57] per Glazebrook, O’Regan, Ellen France and Kós JJ.
The appeals in Dickey were successful. In the case of Ms Dickey, the sentence of life imprisonment was quashed and substituted with a term of 15 years’ imprisonment with an MPI of seven and a half years.[12] Mr Brown’s sentence of life imprisonment was quashed and substituted with a term of 12 years’ imprisonment with an MPI of six years.[13]
Application to adduce further evidence
[12]Dickey v R, above n 2, at [204], [211], [215] and [253].
[13]At [218], [228], [230] and [254].
Mr Whiting-Roff seeks leave to file further evidence from:
(a)Ms McFadden, a clinical psychologist; and
(b)Dr Immelman, a consultant psychiatrist.
Both experts filed reports in relation to Mr Whiting-Roff prior to him being sentenced. They completed further reports in June of this year. It is submitted these new reports address considerations that were not covered in their 2018 reports and satisfy the criteria for admitting “fresh” evidence articulated by the Privy Council in Lundy v R.[14]
[14]Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
In particular, counsel for the applicant raised the following comments made by Ms McFadden about Mr Whiting‑Roff’s previously undisclosed childhood sexual abuse:[15]
57. At the time Mr Whiting-Roff was sentenced, it was not known by his counsel or by Dunningham J that he had been a victim of sexual abuse as a young child. This was only disclosed after he had commenced serving his sentence (and of note, it was disclosed well before an appeal against sentence was contemplated, with Mr Whiting-Roff commencing sensitive claims counselling in 2021). Ms McFadden notes in her report that during his time in the Drug Treatment Unit, Mr Whiting-Roff:
... drew connections between his experiences of sexual abuse and how he processed the allegations made about his victim being a perpetrator of child abuse. As discussions amongst his co-offenders about the plan to harm the victim took shape, Mr Whiting-Roff recalled feeling a responsibility to take action:
One of my co-offenders was looking for him first. Everyone was saying let's do it. I wanted to, too. I think the past feelings came over me. I felt like I had to (take the lead). I felt like I had no choice but to. I couldn't pull myself out of it. I couldn't stop myself.
58. Ms McFadden goes on to opine as follows:
Unique to Mr Whiting-Raff's decision-making at the time of the index offence was his abuse history (e.g., physical, sexual and emotional). Two factors stand out regarding this point. Firstly, the data indicates that Mr Whiting-Roff strongly believed in the need to stand up for others whom he perceived were vulnerable, unjustly treated, or bullied. Secondly, Mr Whiting-Roff has consistently described a period of hyperarousal in the lead-up to the murder that shifted to the events taking on a dream-like quality during the stabbing. Within the literature, these features have been linked to complex trauma exposure and the risk of disproportionate responses to novel trauma or stimuli that are associated with previously experienced trauma events. In this case, Mr Whiting-Roff believed that the victim was sexually harming a child. It is, therefore, possible that the intensity of Mr Whiting‑Raff's reactions represents a form of displaced anger towards his own abuser. His subsequent disclosures of sexual abuse have allowed some processing of these events, and there is data to support a reduced reactivity to trauma‑laden cues.
Crown submissions
[15]Footnotes omitted.
The Crown opposes the application to adduce further evidence on the basis that the reports are neither fresh nor cogent. In particular, the Crown submits:
(a)Ms McFadden’s 2018 report sets out detailed findings on Mr Whiting‑Roff’s cognitive functioning and how his FASD caused him to struggle to foresee the consequences of his decisions. Mr Whiting-Roff’s FASD was specifically referred to by Dunningham J who said in her sentencing notes that this condition had “a significant impact” upon Mr Whiting-Roff’s life.[16]
(b)The recent revelation that Mr Whiting-Roff was the victim of childhood abuse is unlikely to assist the proposed appeal because Mr Whiting‑Roff’s offending was premediated and not “impulsive or opportunistic”.
(c)Evidence about Mr Whiting-Roff’s progress since being imprisoned is not relevant because the focus of a sentence appeal is on the correctness of the sentence at the time it was imposed.
Analysis
[16]Sentencing notes, above n 1, at [32].
Whilst the Crown is correct that the 2024 reports from Ms McFadden and Dr Immelman substantially replicate their 2018 reports, the information concerning Mr Whiting-Roff’s personal experience of childhood sexual abuse is new information that may impact upon his appeal against the MPI that was imposed.
For this reason, we grant the application for leave to adduce the evidence from Ms McFadden and Dr Immelman.
Application for an extension of time to appeal
Kriel v R concerned applications for extensions of time to appeal sentences of life imprisonment imposed on five young men convicted of murder.[17] In that case this Court reaffirmed the principles that govern applications for an extension of time to appeal. This Court adopted the following passage from R v Knight:[18]
… The touchstone is the interests of justice in the particular case. The discretion must be exercised in accordance with the policy underlying the legislative provisions. The feature which provides the reason for the time‑limit for appealing set by s 388(1) is the interest of society in the final determination of litigation. That necessarily carries through as a powerful consideration in determining whether leave should be granted under s 388(2) to appeal out of time. The overall interests of justice in a particular case may call for balancing the wider interest of society in the finality of decisions against the interest of the individual applicant in having the conviction reviewed. Also relevant is “the respect which is traditionally shown for the liberty of the subject” …
[17]Kriel v R [2024] NZCA 45.
[18]At [80], quoting R v Knight [1998] 1 NZLR 583 (CA) at 587.
In Kriel the Court recorded that factors relevant to determining an application to extend time to appeal include:[19]
(a)the strength of the proposed appeal;
(b)the practical utility of the remedy sought;
(c)the length of the delay and the reasons for the delay;
(d)the extent of the impact on others similarly affected and the administration of justice, that is to say, “the floodgate” consideration; and
(e)the absence of prejudice to the Crown.
Applicant’s submissions
[19]Kriel v R, above n 17, at [81], citing R v Knight, above n 18, at 589.
The application for an extension of time to appeal primarily relates to the merits of the proposed appeal. In summary, the proposed appeal is based on the proposition that Mr Whiting-Roff’s sentence needs to be adjusted to achieve parity with the sentences this Court imposed on Ms Dickey and Mr Brown. This in turn is predicated upon two propositions:
(a)although Mr Whiting-Roff was more culpable than Ms Dickey and Mr Brown, the differences in culpability do not justify the significantly greater sentence imposed on Mr Whiting-Roff; and
(b)the personal circumstances of Mr Whiting-Roff are not so different from those of Ms Dickey and Mr Brown to justify the difference in sentences opposed on the three offenders.
Three other grounds are advanced in support of Mr Whiting-Roff’s application:
(a)insufficient recognition was given to reflect Mr Whiting-Roff’s youth and his foetal alcohol spectrum disorder (FASD);
(b)Dunningham J was unaware that Mr Whiting-Roff was the victim of childhood sexual abuse; and
(c)Mr Whiting-Roff has made significant progress since commencing his sentence and he now ought to receive credit for those positive developments.
In his supporting affidavit, Mr Whiting-Roff explains the reasons for the four‑and-a-half-year delay in attempting to appeal his sentence:
(a)after he was sentenced, Mr Shamy advised Mr Whiting-Roff that the sentence was within the appropriate range;
(b)Mr Whiting-Roff was advised to wait to see what happened in the appeals brought by Ms Dickey and Mr Brown; and
(c)the five-month delay following this Court’s judgment in Dickey reflected the time it took to get legal advice and obtain legal aid.
Crown submissions
The Crown opposes an extension of time on the basis that the proposed appeal is devoid of merit. In particular, the sentence of life imprisonment was not manifestly unjust and parity considerations do not necessitate any adjustment to Mr Whiting‑Roff’s sentence.
The Crown submits there are no exceptional reasons for the four-and-a-half-year delay in attempting to pursue the appeal.
Analysis
We will examine the merits of the application to for an extension of time to appeal under two headings:
(a)the sentence of life imprisonment; and
(b)the MPI of 12 and a half years.
The sentence of life imprisonment
There are two aspects to the merits of the proposed appeal against the sentence of life imprisonment:
(a)the comparative culpability of Mr Whiting-Roff, Ms Dickey and Mr Brown; and
(b)the comparative personal circumstances of the three offenders.
Comparative culpability
We reject the submission that there were not significant differences in the culpability of Mr Whiting-Roff, Ms Dickey and Mr Brown.
While Ms Dickey was the “ringleader” who embarked upon the plan to extract vigilante justice,[20] she was significantly less culpable than Mr Whiting-Roff:
(a)he was the one who planned to take a large hunting knife to where Mr McAllister was to be attacked, with the express intention of killing him; and
(b)he was the only person who stabbed Mr McAllister and caused his fatal injuries.
[20]Dickey v R, above n 2, at [202].
In contrast, Ms Dickey, despite being highly involved in organising and participating in the attack on Mr McAllister did try to “call off” Mr Whiting-Roff, while Mr Brown’s role, was assessed by this Court as being “peripheral”.[21]
[21]At [202] and [216].
Mr Whiting-Roff was significantly more culpable than Ms Dickey and Mr Brown.
Personal circumstances
In any event, it was the personal circumstances of Ms Dickey and Mr Brown that persuaded this Court to substitute their sentences of life imprisonment with finite sentences:
(a)Ms Dickey was 16 years old at the time of the offending. She was significantly younger than Mr Whiting-Roff. She surrendered herself to the police at an early juncture, made full admissions, gave evidence for the Crown and her cooperation resulted in the prosecution of one of the offenders.[22] Ms Dickey was also the victim of a challenging upbringing;[23] and
(b)Mr Brown, whose role in the offending was less significant than Mr Whiting-Roff’s and Ms Dickey’s, had a very troubled background.[24] He had profound mental health issues, significant cognitive impairment bordering on intellectual disability and had an extremely deprived upbringing.[25]
[22]At [49].
[23]At [45]–[47].
[24]At [54]–[56].
[25]At [57]–[62].
In contrast, Mr Whiting-Roff’s mental health issues, notwithstanding his FASD, were far less significant than in the case of Mr Brown. Unlike Ms Dickey, Mr Whiting-Roff did not plead guilty until shortly before trial and he did not assist the authorities.
We are in no doubt that Mr Whiting-Roff was significantly more culpable than Ms Dickey and Mr Brown and that his personal circumstances are not as compelling as those of his co-offenders. In our assessment, if he were sentenced post-Dickey, Mr Whiting-Roff would inevitably be sentenced to life imprisonment.
There is therefore no merit in the proposed appeal against the imposition of life imprisonment.
The imposition of the MPI of 12 and a half years
There is however some merit in the proposed appeal against the MPI that was imposed. We have reached this conclusion because of the possible effect Mr Whiting‑Roff’s own experience of childhood sexual abuse may have had on his decision to kill Mr McAllister.
It is possible that Mr Whiting-Roff’s experience of sexual abuse was a contributing cause to his offending and accordingly might assist his proposed appeal against the MPI imposed by the High Court.[26]
[26]See Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
Thus, unlike the proposed appeal against the sentence of life imprisonment, we consider there is some merit in the proposed appeal against the MPI imposed on Mr Whiting-Roff.
This assessment requires us to briefly address the other criteria relevant to determining applications for an extension of time to appeal which we have summarised at [22].
(a)Practical utility of the remedy sought: A successful appeal against the MPI imposed on Mr Whiting-Roff is likely to benefit him because it will reduce the amount of time he needs to serve before being eligible for parole.
(b)Length of the delay and reasons for the delay: While the delay in seeking leave is significant it has been explained by reference to waiting on the result of the appeals brought by Ms Dickey and Mr Brown and in the delays in subsequently obtaining legal advice and legal aid.
(c)Floodgates: The limited number of young offenders who have been convicted of murder limits the concerns we might otherwise have harboured about potential floodgate concerns.
(d)Absence of prejudice to the Crown: Any extension of time to appeal will be confined to the proposed appeal against the MPI imposed in this case. The Crown will not be prejudiced by an appeal confined to that issue.
Other grounds for application
For completeness, we see no merit in the argument that insufficient weight was placed upon Mr Whiting-Roff’s age and his FASD. The High Court was fully aware of his FASD and his cognitive challenges.
We also fully agree with the Crown that whilst Mr Whiting-Roff’s progress in prison is very commendable, this is not a relevant consideration when considering an extension of time to appeal because, the appeal must focus on the correctness of the sentence imposed at the time of sentencing.
As we have noted, the recent revelation that Mr Whiting-Roff was the victim of childhood sexual abuse may assist his proposed appeal against the MPI that was imposed by Dunningham J.
Result
The application to adduce further evidence is granted.
The application for an extension of time to appeal against the sentence of life imprisonment is declined.
The application for an extension of time to appeal against the imposition of a minimum period of imprisonment of 12 and a half years is granted.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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