Churchward v R
[2011] NZCA 531
•19 October 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA610/2010 [2011] NZCA 531 |
| BETWEEN COURTNEY PAULINE CHURCHWARD |
| AND THE QUEEN |
| Hearing: 15 and 16 June 2011 |
| Court: Glazebrook, Ellen France and Harrison JJ |
| Counsel: C J Tennet for Appellant |
| Judgment: 19 October 2011 at 10.00 am |
JUDGMENT OF THE COURT
AThe application for an extension of time within which to appeal is granted.
B The application to adduce further evidence is granted.
C The appeal against conviction is dismissed.
DThe appeal against sentence is allowed in part. The minimum period of imprisonment is reduced to one of 13 years.
REASONS OF THE COURT
(Given by Glazebrook J)
Table of Contents
Para No
Introduction [1]
Background [5]
Appeal against conviction [8]
Directions on youth [8]
Actions of counsel for co-accused [15]
Failure to comment on Ms Te Wini not giving evidence [18]
Failure to highlight [20]Failure to comment on Crown theory [26]
Conclusion on conviction appeal [28]
Appeal against sentence [29]
New evidence [30]
Ms Churchward’s background [31]
Experts’ opinions [38]
Adolescent brain development [50]
Sentencing remarks of Venning J [56]
Life imprisonment [63]
Minimum period of imprisonment: submissions [66]
Minimum period of imprisonment: the principles [74]
Effect of youth [76]
Effect of mental health issues [93]
Our comments on the Crown’s submissions [94]
Application of principles to Ms Churchward [100]
Conclusion on sentence appeal [104]
Result [109]
Introduction
Ms Churchward and her cousin Ms Te Wini were convicted in November 2009 after a jury trial of the murder of Mr John Alan Rowe. At the time of Mr Rowe’s death in November 2008, Ms Te Wini was 14 years old and Ms Churchward was 17.
Venning J, who was the trial Judge, sentenced Ms Churchward (and Ms Te Wini) to life imprisonment with a minimum period of imprisonment of 17 years.[1]
[1]R v Churchward HC Tauranga CRI-2008-270-361, 18 December 2009.
Ms Te Wini’s appeal against conviction has been allowed and a retrial has been ordered for her.[2]
[2]Te Wini v R [2011] NZCA 279 (oral judgment); Te Wini v R [2011] NZCA 405 (reasons for judgment).
Ms Churchward seeks an extension of time to appeal against her conviction and sentence. The extension of time is not opposed and has been adequately explained in an affidavit by Ms Churchward. The extension of time is granted.
Background
On the evening of 24 November 2008, Mr Rowe, a 78 year old pensioner, was beaten in his bed with a wooden walking staff and a wooden rod. The assault caused massive head injuries and blood loss which resulted in respiratory failure leading to eventual, but not immediate, death.[3]
[3] Fuller details of the offending are contained in the reasons for judgment on Ms Te Wini’s appeal.
The Crown case was that Ms Churchward and Ms Te Wini killed Mr Rowe and that they intended to cause his death. Alternatively, the Crown submitted that both girls intended to cause Mr Rowe bodily injury, that they knew this was likely to cause death, and that they were reckless as to whether or not death ensued.[4]
[4]The Crown did not invoke s 168 of the Crimes Act 1961 at trial. This was, we understand, so as not to complicate the trial further by the addition of a third alternative means of proving the requisite intent for a murder conviction.
Ms Churchward’s trial strategy was to admit culpable homicide but deny foreseeability of death. She did this by asserting in evidence that she intended to knock out Mr Rowe, but that, on account of her own experience of being knocked out, did not believe Mr Rowe would come to lasting harm. The issue for the jury with respect to Ms Churchward was therefore whether or not she intended to kill or knew that death was likely to ensue.
Appeal against conviction
Directions on youth
Ms Churchward’s first submission on her conviction appeal is that Venning J erred by not directing on the relevance of youth to the question of intent.
On appeal, Ms Churchward seeks leave to adduce evidence from Dr Chaplow in support of this ground.[5] In his report attached to his affidavit, Dr Chaplow surveys the leading literature on the development of the adolescent brain.[6]
[5]We deal with the application to adduce this further evidence in the context of the sentence appeal at [30] below.
[6] Summarised at [50]–[55] below.
As the Crown points out, Dr Chaplow’s report is a rather double-edged sword for Ms Churchward. On the one hand, it does point to difficulties that adolescents may face in “hot” (or real life) situations with understanding likely consequences and making good decisions.
On the other hand, it also says that adolescents are “less inclined to assign weight to consequences over the immediate risks and thrill of the current challenge”. The report says that, while adolescents are not less knowledgeable about risks, they attach different values to rewards that risk-taking provides. In addition, adolescents have a diminished ability to control impulsivity, have less future orientation than adults and are more subject to peer influences.
As a general rule, we accept that it would be preferable for judges to draw the jury’s attention to an accused’s youth and the effect this may have had on intent. However, the jury were well aware of Ms Churchward’s youth and her trial counsel had specifically drawn attention to it in closing. Her trial counsel reminded the jury that Ms Churchward was a “young girl” and that they needed to be sure that, within her “young mind”, she had developed the requisite intent. We therefore do not consider that the absence of a direction on youth has caused a miscarriage.
In any event, in Ms Churchward’s case, the defence position was that she did foresee the consequence of her actions: it was to knock Mr Rowe out and, on the basis of Ms Churchward’s own experiences (of which corroborating evidence was called),[7] this should not have caused any long term adverse consequences for Mr Rowe.
[7]Evidence was given by a witness who said that he had seen Ms Churchward with black eyes and other injuries to her head shortly after an occasion where she had allegedly been severely beaten by her abusive partner.
This ground of appeal fails.
Actions of counsel for co-accused
The next ground of appeal is that there was a breach of s 39 of the Evidence Act 2006. It is submitted that Ms Churchward’s veracity was to be questioned in cross-examination on behalf of Ms Te Wini and that proper notice was not given.
This ground of appeal is not sustainable. Ms Churchward’s trial counsel, Mr Mabey QC, filed a memorandum saying that, while he received no formal notice, he was in no way disadvantaged or taken by surprise by the cross-examination of Ms Churchward. He had had discussions with Ms Te Wini’s trial counsel throughout the preparation for the trial and was well aware of Ms Te Wini’s defence. The thrust of the likely cross-examination of Ms Churchward was obvious to him and explained to Ms Churchward before she gave evidence.
In any event, as pointed out by the Crown, given that Ms Churchward had conceded that she had caused Mr Rowe’s death, Ms Te Wini’s counsel’s actions could only have impacted on Ms Churchward’s trial if those actions went to the level of harm Ms Churchward intended or her appreciation of the risk of death. None of the matters of which complaint is now made go to those issues.
Failure to comment on Ms Te Wini not giving evidence
It is submitted that, in the particular circumstances of this case, the Judge should have commented on Ms Te Wini’s failure to give evidence.[8]
[8]Section 33 of the Evidence Act 2006 provides that the Judge may comment on the fact that a defendant did not give evidence at his or her trial.
We reject this submission. Judges rarely comment on a failure to give evidence and there is nothing that suggests this case should be one of those rare cases where comment might be made.
Failure to highlight
The next submission is that the Judge should have highlighted, throughout the summing up, that a co-accused’s statements are not admissible against the other accused.
We do not accept this submission. The jury was well aware that the statements of each accused were not admissible in relation to each other. The Judge made this clear in his summing up:
[32]I remind you that Ms Churchward’s statement made in the absence of Ms Te Wini is not evidence against Ms Te Wini. You must disregard Ms Churchward’s statement when you are considering the case against Ms Te Wini and for that matter the statements attributed to Ms Te Wini about Ms Churchward by [her then boyfriend] when giving his evidence and in the intercepts are not evidence against Ms Churchward for the same reasons.
A related submission is that the Judge failed to highlight the submissions for Ms Te Wini that were not based on the evidence or not put to Ms Churchward.
We do not necessarily accept that all the comments highlighted by Mr Tennet had no evidential foundation. For example, Mr Tennet complains that reliance was placed on “self serving” statements made by Ms Te Wini in the course of intercepted conversations between Ms Te Wini and her then boyfriend and her mother. Those conversations were, however, produced in evidence in their entirety. Further, the comments were made in circumstances where Ms Te Wini was not aware she was being recorded.
In any event, the jury was aware that they were not to treat counsel’s submissions as evidence. In his summing up, the Judge said:
[6]… You apply your view of the evidence, not [counsel’s]. What you heard from them was of course their submissions about the evidence, but it is not evidence and it is for you to decide what you make of the evidence at the end of the day.
Finally, none of the matters Mr Tennet complains of go to the only issue in Ms Churchward’s trial, her intent.[9]
Failure to comment on Crown theory
[9] See at [17] above.
The next submission is that the Judge failed to direct the jury that the Crown’s submission, that Ms Churchward had pursued Mr Rowe as he moved down the bed, was merely a theory.
The Judge, in outlining Ms Churchward’s case, referred to her trial counsel’s submission that there was no evidence that the assailants had pursued Mr Rowe as he moved down the bed. The Judge was not obliged to do more.
Conclusion on conviction appeal
None of the grounds advanced on the conviction appeal succeed. The conviction for murder stands.
Appeal against sentence
Before turning to the grounds of the appeal against sentence, we first deal with an application to adduce further evidence in support of that appeal. We then set out Ms Churchward’s background in more detail, and a summary of the experts’ opinions and Venning J’s sentencing remarks.
New evidence
For her sentence appeal, Ms Churchward seeks leave to rely on a report by clinical psychologist Ms Bellve-Wack and also on the report by Dr Chaplow.[10] There was no formal opposition by the Crown and the application is granted.
Ms Churchward’s background[11]
[10] Referred to at [9] above.
[11] This is largely taken from Dr Chaplow’s summary and Ms Bellve-Wack’s report.
Ms Churchward was brought up by her mother and stepfather in Auckland until they separated when she was about 10 years old. She lost contact with her stepfather when he became involved in a new relationship. She felt rejected by both her stepfather and her natural father. She thought their rejection of her was somehow her fault and that she had to strive hard to make her elders proud of her. While in Auckland, Ms Churchward excelled academically.
When Ms Churchward was 13 years old, her mother relocated the family to Opotiki. Ms Churchward came under the influence of her cousins and began to drink alcohol and smoke cannabis. Her behaviour became increasingly anti-social. Her mother could not cope and she sent Ms Churchward to live with relatives in Gisborne. Ms Churchward adjusted well to the school but not to the relatives as they were very strict.
Ms Churchward and a girlfriend ran away to Rotorua where they were found by the police and returned to Opotiki. At that time, she had experiences of anorexia and was also depressed. Back in Opotiki, Ms Churchward was enrolled at Opotiki College, which she disliked. She once again began drinking and smoking cannabis and engaged in casual sex. At this stage she formed a very close relationship with Ms Te Wini.
In May 2006 Ms Churchward was referred to CYFS and placed in a temporary home. Because of her mother’s apparent rejection of her, guardianship proceedings were instituted and she was placed in the care of an aunt in Auckland. That placement initially did not work but there was a reconciliation and, by December 2006, Ms Churchward was doing well at school and was talking about going to university. However, that Christmas she was allegedly abused by a relative. She reacted badly, experiencing fear and flashbacks. She had suicidal thoughts.
Ms Churchward then returned to Opotiki where her mother was having a baby. When the baby was born she “fell in love with her at first sight” and became very protective and did not want to let the baby out of her sight. Ms Churchward rarely went out in public at that time because of panic attacks but she had discarded thoughts of suicide because she did not want to leave the baby or hurt her mother.
In early 2008 Ms Churchward moved back to Auckland where she worked in a hairdressing salon for some months but was dismissed for not turning up to work. She said she did not get on with her colleagues. She also in May 2008 entered into an abusive relationship with a man associated with a gang, just released from prison. In his association she became involved in more serious drugs (including methamphetamine). Ms Churchward had also been involved around this time in some relatively minor offending (shoplifting).
Eventually, after a particularly severe beating by her partner which took place approximately ten days before the murder, Ms Churchward returned to Opotiki. On her return to Opotiki her mother noticed Ms Churchward was very thin and withdrawn. She seemed afraid when someone came to the door and appeared depressed. She associated with her cousins and particularly Ms Te Wini at her aunt’s house, which Ms Churchward’s mother did not consider a good environment for her.
Experts’ opinions
Dr Chaplow concludes that Ms Churchward is a young woman who has been denied stability of parenthood, who appears to succeed when in a stable environment, but who is susceptible to peer opinion. She was variably anorexic and depressed. She craved male attention, putting up with abuse and degrading behaviour until it became intolerable. She was raped by a person in a position of authority over her. Contrasted to this, she developed a protective attachment to her mother’s baby (half-sister) and to her younger cousin (Ms Te Wini).
Dr Chaplow also says that in a psychosocial sense, Ms Churchward has an undeveloped sense of self. Contributing factors include her abandonment at the age of ten by her father figures, confusion over which culture she belongs to and an adverse formative experience of alleged abuse by a person in a position of authority over her. Her need to fit in with her peers, the influence that her peers had on her behaviour in terms of her substance taking and her adolescent view of the importance of her relationship with her young cousin led to a need to keep faith with her cousin, by keeping her promise to support her in robbing the occupant of the house.[12] In addition, the thrill of “breaking and entering” for the reward of money and marijuana was not maturely balanced to the risk of escalation, harming an innocent person, being caught and having to account for her involvement in a serious crime.
[12]We are not to be taken as making any comment on the relative roles of Ms Churchward and her cousin in the offending.
Ms Bellve-Wack comments that Ms Churchward is a person who does well (and even excels) when in a stable environment but descends into drugs and anti-social behaviour when stability is not present. She opines that Ms Churchward has been anorexic and depressed in the past and that she showed symptoms of Post Traumatic Stress Disorder (PTSD) at the time she was examined by Ms Bellve-Wack in August 2009.
Like Dr Chaplow, Ms Bellve-Wack concludes that, due to lack of secure attachment with parental figures, various losses, traumata and environmental conditions that thwarted her ability to achieve, Ms Churchward did not develop a stable sense of identity and self esteem. Acceptance and validation by her mother and whānau became her measure of self worth. However, being unable to meet their expectations of achievement, Ms Churchward seems to have identified with whānau members who themselves had serious problems and formed co-dependent relationships with them.
The abuse perpetrated by a person who she held in high regard further devastated her. Ms Churchward’s ‘choice’ of partner reflects her low self esteem and seeming conviction of not deserving better. Overall, her relationships have been unstable, vacillating between over-identification, idealisation and enmeshment on one hand and devaluation, debasement and aggression on the other.
Ms Bellve-Wack also opines that Ms Churchward has not yet developed mature psychological coping mechanisms. To manage her emotions as well as symptoms of PTSD and depression, Ms Churchward became dependent on substance use, which added to her problems. Though she is still young, her coping and relationship patterns have been of sufficient duration to diagnose Borderline Personality Disorder.
While it is not possible to delineate clearly the roles that Ms Churchward’s experiences of various traumata might have played in the context of the offence, Ms Bellve-Wack considers it likely that these experiences may have lowered Ms Churchward’s threshold for committing violence. Ms Churchward has stated that she had experienced violent fantasies since having been abused by her relative. Furthermore, during her relationship with her partner, she was frequently subjected to violence which reinforced her anger and rage.
Ms Bellve-Wack comments that, during her statement to the police, Ms Churchward’s affect appeared flat for the most part, except for some annoyance and irritability. Even when details of the violence committed were raised, her affect was incongruous to the topic. However, the reasons for this apparent lack of affect are not clear, and Ms Bellve-Wack opines that it may have been volitional or dissociative, related to the offence itself or an ingrained coping strategy due to previous trauma.
Ms Churchward’s history indicates that acceptance by whānau has been of paramount importance for Ms Churchward. On the videotaped police interview she appeared protective of Ms Te Wini. Ms Churchward initially staunchly maintained that her cousin had not played a role at all in the offending. While she later admitted that her cousin had been present when the offending occurred, she appeared to minimise her role.
Ms Churchward told Ms Bellve-Wack that she feels protective and fiercely loyal towards her family and “would do anything for them” and “give my life” for them. She also stated that she “hurt someone who I don’t know to make someone else happy” and that she was always true to her word even if it meant doing something bad.
Given the above history as well as the index offence it is Ms Bellve-Wack’s opinion that, without interventions, Ms Churchward poses a risk to herself and others. Preferably she would receive psychiatric treatment with medication that has been found beneficial for people who suffer symptoms of PTSD and depression as well as psychological counselling to help her deal with the violence she suffered as well as perpetrated and to assist her with building a more stable sense of self and self worth. Furthermore, the ability to pursue her education would be important in helping Ms Churchward to get her life back on track.
It is Ms Bellve-Wack’s opinion that, without intervention and treatment while in prison, Ms Churchward could be vulnerable to the influence of other inmates and may engage in fused, unhealthy relationships that could hinder psychological maturation. At this point in her life, Ms Churchward sees prison as a safe haven where she is safe from her ex partner and as a place where she can regroup and get her life back on track.
Adolescent brain development
As we mentioned above,[13] Dr Chaplow’s report also summarises the leading literature on adolescent brain development. He points to several key characteristics of adolescence that are recognised by developmental psychology research: deficiencies in decision-making ability, greater vulnerability to external coercion, and the relatively unformed nature of the adolescent character.
[13] At [9] above.
He notes that diminished decision-making ability amongst adolescents is exhibited with regard to “hot” processing (that is, in real life, coercive situations), and can be attributed to the fact that adolescents are less efficient than adults in processing information and lack life experience.
Further, psychosocial and emotional influences can contribute to immature judgements and, therefore, bad choices. During adolescence, the developing brain is very much influenced by social factors such as family stability and the use of substances, including alcohol and drugs. Substantial research also supports the view that adolescents are more orientated towards peers and responsive to peer influence than adults and have a diminished ability to control impulsive behaviour.
Dr Chaplow also points to research suggesting that adolescents have less future orientation than adults, tending to focus on the ‘here and now’ rather than long-term consequences. Research findings suggest that adolescents discount risks and calculate rewards quite differently from adults, tending to assign less weight to consequences over the immediate risk and thrill of the current challenge. This is not because adolescents are less knowledgeable about risks, but because they attach different values to rewards that risk-taking provides.
Further, according to developmental psychology research, the task of adolescence is primarily concerned with the formation of personal identity and, where that process is disrupted, problems often result. Identity formation concerns values, plans, attitudes, beliefs, work choices, sexual orientation and partner choices. The process of “finding oneself” tends to lend itself to experimentation which, for some adolescents in unstable environments, means engaging in risky activities.
Finally, Dr Chaplow distinguishes between two primary groups of offenders: those dubbed “Adolescents-Limited”, typical delinquents whose involvement in crime begins and ends in adolescence; and a much smaller group of youths labelled “Life-Course-Persistent Offenders”. This group’s anti-social conduct begins in childhood and continues into adulthood.
Sentencing remarks of Venning J
Venning J referred to the principles of the Sentencing Act 2002 which were particularly relevant to the sentencing exercise before him:
(a)to hold Ms Churchward accountable for the harm done to the deceased and the community by such violent offending;
(b)to promote in Ms Churchward a sense of responsibility for and acknowledgement of that harm;
(c)to provide for the interests of the deceased and his family as the victims of this offence;
(d) to denounce such senseless and wanton violence; and
(e) to deter Ms Churchward and others from committing similar offences.
The Judge set out a summary of Ms Churchward’s background. He accepted that Ms Churchward is an intelligent young woman who in other circumstances might have had a completely different life. He noted, however, that the probation officer recorded that Ms Churchward did not or was not able to show remorse or empathy with the deceased.[14]
[14]Ms Bellve-Wack also reports that Ms Churchward showed no empathy for the victim’s suffering but said that Ms Churchward does regret her actions. However, note Ms Bellve-Wack’s comments set out at [45] above relating to dissociation or an ingrained coping strategy.
The Judge noted that the presumption is that the sentence for murder is imprisonment for life. Neither counsel suggested that was not appropriate. Nor could they. This was a brutal murder. The personal circumstances of Ms Churchward cannot weigh against that. The appropriate sentence is life imprisonment.
The Judge then turned to consider the minimum period of imprisonment. The first issue was whether there were circumstances which support a minimum period of imprisonment of 17 years. In this case the Judge considered that there were a number of such features:
(a)The murder involved the unlawful entry into and unlawful presence by Ms Churchward and Ms Te Wini in the deceased’s home, a home invasion.
(b)The murder was committed in the course of another serious offence, robbery. Ms Churchward and Ms Te Wini intended to take property from the deceased and, if necessary, to use violence against him to overcome his resistance.
(c)It could also be said that the murder was committed with a high level of brutality. This was not one act of violence or assault but a sustained beating meted out to the deceased by two persons in combination using weapons.
(d)Finally, the deceased was particularly vulnerable in this case because of his age and health. He was a frail, 78 year old man weighing only 57 kilograms and in ill health. The Judge said that Ms Churchward and Ms Te Wini were generally aware of his situation, particularly Ms Te Wini because she had referred to him as “the old man next door” and knew him.
Given those features of the offending, s 104 of the Sentencing Act directs the Court to impose a minimum period of imprisonment of 17 years unless it would be manifestly unjust to do so. The Judge considered that, given the features of the offending, were it not for their ages a figure of 19 or 20 years could be appropriate.
In Ms Churchward’s case, trial counsel had accepted that a minimum period of imprisonment of 17 years could not be argued against. This means that the discussion of whether a lesser term should be imposed related only to Ms Te Wini. However, the reasoning applies equally to Ms Churchward.
The Judge noted that the principal factor which was of real concern to the Court was the young age and lack of maturity of Ms Te Wini at the time of the murder. He commented that Parliament has not, however, chosen to make a specific exception for youth.[15] After considering the authorities and the circumstances, the Judge concluded that a 17 year minimum period of imprisonment was appropriate.
Life imprisonment
[15] R v Slade [2005] 2 NZLR 526 (CA) at [43]; R v Rapira [2003] 3 NZLR 794 (CA) at [123].
Mr Tennet’s first submission on the sentence appeal is highly optimistic. He submits that there are arguments that, because of Ms Churchward’s youth and mental state, life imprisonment did not need to be imposed.
In R v Rapira[16] it was held that the conclusion that a sentence of life imprisonment is manifestly unjust is made on the basis of all the circumstances of the offence and the offender but that it is a conclusion likely to be reached in exceptional cases only. The Court referred to the speech of the Minister of Justice on the introduction of the Sentencing and Parole Reform Bill which introduced s 102 of the Sentencing Act (which provides that there is a presumption in favour of life imprisonment for murder). The Minister of Justice referred to the retention of “a strong presumption in favour of life imprisonment for murder”:[17]
However, in a small number of cases, such as those involving mercy killing, or where there is evidence of prolonged and severe abuse, a mandatory life sentence is not appropriate. Under this legislation, the court will be able to consider a lesser sentence.
[16] R v Rapira at [121].
[17](14 August 2001) 594 NZPD 10910–10911.
We reject Mr Tennet’s submission that life imprisonment was inappropriate. This was a brutal murder committed in the course of a premeditated home invasion for the purpose of robbery.[18]
Minimum period of imprisonment: submissions
[18] Refer to [58] above.
The next submission is that the presumption of a 17 year minimum period of imprisonment should have been displaced because the threshold of manifest injustice was met on account of Ms Churchward’s age and personal circumstances. It is submitted that Ms Churchward’s age (17 years old at the time of the offending) and mental health issues (depression and symptoms of PTSD) are mitigating factors to be taken into account when determining whether a 17 year minimum period of imprisonment would be “manifestly unjust”. It is submitted that the appropriate minimum period is ten years.
In the Crown’s submission, the cases make it clear that youth alone is not enough to displace s 104 on the basis of “manifest injustice”.[19] The Crown submits that, where the culpability attaching to the offence is relatively low having regard to the range of cases caught by s 104, the circumstances of the offender may make the sentence manifestly unjust.[20]
[19] R v Slade at [22]–[23].
[20] R v Williams [2005] 2 NZLR 506 (CA) at [68].
In R v Slade, this Court quashed Mr Slade’s minimum period of imprisonment of 17 years on the basis that Mr Slade was not the principal perpetrator[21] and, when combined with his age of 16 years, this made it “manifestly unjust” to impose such a lengthy minimum period. This was to be compared with the principal offender, Mr Hamilton, who, while also 16 years of age, had an intent that was described as ‘ugly’, was a violent offender, and still had little appreciation of what he had done.
[21]He held down the deceased while the principal meted out sustained violence and then robbed him.
The Crown submits that, on the basis of the information regarding Ms Churchward’s personal circumstances before Venning J, he made no error in imposing a 17 year minimum period of imprisonment. The Crown accepts, however, that Ms Bellve-Wack’s report appears not to have been before Venning J and therefore he had not been apprised of Ms Churchward’s mental health issues.
The Crown notes that Ms Bellve-Wack did not interview Ms Churchward until nine months after the offending. At that time she had been remanded in custody for several months, and it is submitted that it is not possible to assess the extent to which her depression was influenced by the predicament in which she found herself. In addition, there is no clear analysis of the effect of Ms Churchward’s drug use, or her mental state at the time of the offending.
Furthermore, in the Crown’s submission, there is no evidence of a nexus or causative link between the offending and Ms Churchward’s PTSD and depression. At the highest, Ms Bellve-Wack suggests that Ms Churchward may have had a lowered threshold for violence. However, this was not spontaneous provoked offending where someone with a shortened fuse violently lashed out at some perceived but trivial slight. The Crown submits that this was a planned premeditated robbery where the use of violence came after reflection and after encouragement from Ms Te Wini.[22]
[22]We record the Crown’s submission but are not to be taken as making comment on Ms Te Wini’s role.
The Crown supports Venning J’s view that for adult offenders the sentence here could have been 19 or 20 years. The Crown accepts that the brutality alone, as severe as it was, may not have earmarked this offending for a sentence of that length. However, combined with the other aggravating features of entry into a home at night, the vulnerability of the 78 year old victim, and the murder committed so as to steal money to buy drugs, the Crown submits that Venning J’s view cannot be said to be wrong.
The Crown submits that a discount of the magnitude argued for by Mr Tennet is not warranted for the following reasons:
(a)at 17 years and 7 months of age at the time of the offending, Ms Churchward was “towards the end of the spectrum as regards youth”;
(b)her mental health issues were not causative of the offending, did not impact on her cognitive abilities, and cannot be clearly separated from her drug use; and
(c)there was no guilty plea, and the probation officer could ascertain no remorse nor victim empathy.
Minimum period of imprisonment: the principles
R v Williams is the leading case on s 104(1).[23] The Court set out a two-step approach which can be adopted for s 104 cases. First, the sentencing Judge is to consider the degree of culpability of the instant case in relation to that involved in the standard range of murders. Second, the sentencing Judge is to consider whether to impose a minimum period of 17 years imprisonment would be manifestly unjust.[24]
[23] R v Williams [2005] 2 NZLR 506 (CA).
[24] At [52]–[54].
In R v Williams the Court said that the question of whether the 17 year period is manifestly unjust is determined having regard to all of the purposes and principles of sentencing that are set out in ss 7 to 9 of the Sentencing Act.[25] The Court commented that, while mitigating factors directly bearing on the offence will often carry greater weight than those relating to the offender, each is capable of influencing the outcome of the inquiry into whether a minimum period of 17 years imprisonment would be manifestly unjust.[26] The Court noted that the minimum period of 17 years is not to be departed from lightly.[27] A minimum period of 17 years will be manifestly unjust where the Judge decides:[28]
… as a matter of overall impression that the case falls outside the scope of the legislative policy that murders with specified features are sufficiently serious to justify at least that term. That conclusion can be reached only if the circumstances of the offence and the offender are such that the case does not fall within the band of culpability of a qualifying murder. In that sense they will be exceptional but such cases need not be rare.
Effect of youth
[25] At [56].
[26] At [71].
[27] At [66].
[28] At [67].
We accept the submission made on behalf of Ms Churchward that, although there is no automatic displacement of a 17 year minimum period on the basis of youth alone, the age of a defendant can be a mitigating factor and falls naturally for consideration under the broadly worded test of “manifestly unjust”.[29] We refer to s 8(g) of the Sentencing Act,[30] and s 25(i) of the New Zealand Bill of Rights Act 1990 (Bill of Rights), which affirms:[31]
The right, in the case of a child, to be dealt with in a manner that takes account of the child’s age.
[29] See at [66] above.
[30]This states that the Court must impose the least restrictive outcome that is appropriate in the circumstances.
[31]See also art 37(b) of the United Nations Convention on the Rights of the Child [Children’s Convention] which states that the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.
Youth has been held to be relevant to sentencing in the following ways:[32]
(a)There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.[33]
(b)The effect of imprisonment on young people, including the fact that long sentences may be crushing on young people.[34]
(c)Young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult.[35]
[32]We have been assisted in preparing this section of the judgment by the submissions made by Mr Lillico on behalf of Ms Te Wini.
[33]In R v Slade at [43], the Court said that the reality is that a high degree of violent offending is committed by young people, and (referring to a report of a consultant psychologist) said that this could be explained by the fact that adolescents do not possess either the same developmental level of cognitive or psychological maturity as adults. They have difficulty regulating their moods, impulses and behaviour, and they are more vulnerable than adults to peer pressures. In Pouwhare v R [2010] NZCA at [69], this Court said that “when young persons appear for sentence … it will always be relevant … and sometimes may even be decisive, that they lack the maturity of an adult and are decidedly more vulnerable and impulsive”.
[34]R v Chankau [2007] NZCA 587 at [26]. The Court said that “[a] long sentence is a substantial proportion of the life the youth has already lived, and imprisonment often weighs heavily on the young.” See also R v Slade at [45].
[35]R v Chankau at [26]. The Court said that “with young offenders there is frequently the hope that with maturity will soon come insight and a reduction in risk to the community”. See also R v K (2003) 20 CRNZ 62 (CA) at [22], R v Mahoni (1998) 15 CRNZ 428 (CA) at 436–437 and R v Titoko CA114/96, 11 September 1996.
Additional factors recognised by the England and Wales Sentencing Guidelines Council are: offending by a young person is frequently a phase which passes fairly rapidly and thus a well-balanced reaction is required in order to avoid alienating the young person from society; and criminal convictions at this stage of a person’s life may have a disproportionate impact on the ability of the young person to gain meaningful employment and play a worthwhile role in society. [36]
[36]In England and Wales, the Sentencing Guidelines Council has issued definitive guidelines on the principles to apply when sentencing youths. Courts are required to have regard to the guidelines under the Criminal Justice Act 2003 (UK). See Sentencing Guidelines Council Overarching Principles – Sentencing Youths (2009) at [3.7].
Looking at these related factors in more detail, we note first the matters discussed by Dr Chaplow as to the differences between young people and adults.[37] As he notes, there is a growing body of scientific evidence on adolescent brain development that demonstrates that young people are significantly different to adults.
[37] Summarised at [50]–[55] above.
The New South Wales Department of Education and Training has stated that adolescence is a period of development, particularly in the ability to produce, establishing an individual identity and developing logical and rational thought processes. It summarises the research as follows:[38]
(a)the ability to plan, consider, control impulses and make wise judgements is the last part of the brain to develop;
(b)adolescents are built to take risks and it is simply part of their biology;
(c)most adolescents know right from wrong, but the environment in which risk-taking and other behaviours occur can lead to inappropriate behaviour; and
(d)adolescents are more prone to react with gut instincts and impulsive and aggressive behaviour.
[38]New South Wales Department of Education and Training “Closed for Construction – Adolescent Brain Development in the Middle Years” < referred to in Noetic Solutions Pty Ltd “A Strategic Review of the New South Wales Juvenile Justice System” (2010) at [15] <>
These neurological factors can lead to a reduction in culpability of young people as compared to adults. This does not mean that young persons should not take responsibility for their actions – it is merely that their actions may be partly explicable (but not necessarily excusable) by their state of neurological development. In KT v R, the Supreme Court of New South Wales (Court of Criminal Appeal) stated that:[39]
The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age.
[39]KT v R [2008] NSWCCA 51, (2008) 182 A Crim R 571 at 578 per McClellan CJ. See also BP v R [2010] NSWCCA 159, (2010) 201 A Crim R 378, R v E [2006] NSWCCA 305, (2006) 164 A Crim R 208 at [127] and R v Hearne [2001] NSWCCA 37, (2001) 124 A Crim R 451 at [25].
The fact that a young person’s character has not fully developed has been taken into account in other jurisdictions. For example, the United States Supreme Court in Roper v Simmons said:[40]
The personality traits of juveniles are more transitory, less fixed ... These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behaviour means “their irresponsible conduct is not as morally reprehensible as that of an adult.” … Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment … The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed. Indeed, “[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.” …
[40]Roper v Simmons 543 US 551 (2005) at 570. See also Johnson v Texas 509 US 350 (1993) at 376: “the vicissitudes of youth bear directly on the young offender’s culpability and responsibility for the crimes”, Eddings v Oklahoma 455 US 104 (1982) at 115–116: “[o]ur history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults” and R v N [2010] EWCA Crim 951 at [27].
The Constitutional Court of South Africa, referring to the equivalent provision of s 25(i) of the Bill of Rights in the South African Constitution,[41] has noted that a “sharp distinction” is not drawn between children and adults out of sentimental reasons, but rather:[42]
[26].… for practical reasons relating to children’s greater physical and psychological vulnerability. Children’s bodies are generally frailer, and their ability to make choices generally more constricted, than those of adults. They are less able to protect themselves, more needful of protection, and less resourceful in self-maintenance than adults.
[27]These considerations take acute effect when society imposes criminal responsibility and passes sentence on child offenders. Not only are children less physically and psychologically mature than adults: they are more vulnerable to influence and pressure from others. And, most vitally, they are generally more capable of rehabilitation than adults.
[28]… [W]e recognise that children’s crimes may stem from immature judgment, from as yet unformed character, from youthful vulnerability to error, to impulse, and to influence. We recognise that exacting full moral accountability for a misdeed might be too harsh because they are not yet adults. Hence we afford children some leeway of hope and possibility.
[41] Section 28(1) of the Constitution of South Africa.
[42]Centre for Child Law v Minister for Justice and Constitutional Development [2009] ZACC 18, (2009) 2 SACR 477.
As was noted in R v Rapira, however, where the offending is grave, the scope to take account of youth may be greatly circumscribed.[43] This is because the very factors that may lead young people to offend may cause concerns about future public safety. There is also the need for denunciation and deterrence, both specific to the offender and general.[44] This Court summarised the relevance of youth to sentencing in Pouwhare v R as follows:[45]
… the fact than an offender is a young person can sometimes be given radical effect on sentence, unconstrained by any normative percentage, even where offending is serious. In other cases that is not possible. The young age of the offender cannot be accorded presumptive, let alone paramount, weight. The objective seriousness of the offending, the young person’s part in it, anything aggravating and otherwise mitigating must also be weighed.
[43]R v Rapira at [122]. See also KT v R at 578 per McClellan CJ and Director of Public Prosecutions (Vic) v Higgs [2010] VSCA 154, (2010) 202 A Crim R 174 at [30].
[44]R v Rapira at [120]; R v Fatu [1989] 3 NZLR 419 (CA). See also R v Wilson [1989] 2 NZLR 308 (CA) at 311, R v N [1998] 2 NZLR 272 (CA) and R v Mahoni.
[45] Pouwhare v R at [96].
As to the adverse effect of imprisonment on young people,[46] this Court in R v Slade accepted that the effect of imprisonment on youth differs from the effect on adults. The Court in that case accepted evidence, which it described as being grounded on well-accepted professional literature, that adolescents experience high levels of depression, anxiety, suicidal ideation and self-injurious behaviour, and victimisation from other inmates whilst incarcerated.[47]
[46] Referred to at [77](b) above.
[47]R v Slade at [45]. In R v Slade the Court also commented that, in institutional terms, adult institutions offer less in the way of health and mental health services for adolescents than for adult prisoners: at [45].
These matters are relevant under s 8(h) of the Sentencing Act which requires the Court to take into account any particular circumstances of the offender which mean that a sentence that would otherwise be appropriate would, in the particular instance, be disproportionately severe. This section has been said to be a provision that preserves the long standing principle of mercy in sentencing.[48]
[48] R v Luce [2007] NZCA 476 at [22].
Long sentences in particular are likely to cause particular difficulty for young people. Recognition of a young person’s sense of time would be consistent with s 25(i) of the Bill of Rights[49] which requires children who offend to be treated in a way that “takes account of the child’s age”. We note that this is also a factor when dealing with mature people. In R v Williams the impact of a lengthy term of imprisonment on a 62 year old man was considered a mitigating factor that, in combination with other factors, brought the minimum period of imprisonment below 17 years.[50]
[49] Set out at [76] above. See also art 40(1) of the Children’s Convention.
[50] R v Williams at [92]–[93].
Turning to rehabilitative prospects,[51] in R v Cuckow,[52] this Court concluded that “a young first offender should not be regarded as beyond help even after serious offending unless there is no escape from that conclusion”.
[51] Referred to at [77](c) above.
[52]R v Cuckow CA312/91, 17 December 1991 at 10.
In R v K, in dealing with a 16 year old first offender guilty of aggravated robbery, aggravated burglary, kidnapping and conversion of a car, this Court stated:[53]
The gravity of a young offender’s offending has necessarily to be balanced against the need to consider his rehabilitation and reintegration into society and the outcome should be the least restrictive in the circumstances of the case. Whilst these are not the only principles that require balancing in the case of a young offender, they are the principles to be given emphasis.
[53] R v K at [22].
This Court recently referred to this passage in R v Flavell, in holding that greater recognition should have been given to the rehabilitative efforts of the offender in that case, who was a talented sportsman.[54] The Court held that there appeared to be genuine signs that he could realise his sporting potential if provided with the opportunity to do so.[55] Similar comments were made in R v Mahoni, although it was noted that there are situations where the principle that youth may lead to a sentence reduction is not absolute. It may need to yield to the public interest:[56]
The principle that for a variety of reasons, youth may lead to a reduction in an otherwise appropriate sentence is well established. See R v Titoko CA114/96, 11 August 1996 where this Court drew attention to s 7 of the Criminal Justice Act and art 37(b) of the United Nations Convention on the Rights of the Child. It should be noted that the principle is not founded solely on consideration for young persons; there is benefit to the community in ensuring that the chance of rehabilitation is not shut out, and in reducing the prospect of a youthful offender emerging from prison a more hardened criminal than he went in. However, the principle is not absolute and there are situations where it must yield to the public interest …[57]
[54] R v Flavell [2011] NZCA 361 at [26].
[55] At [26].
[56] R v Mahoni at 436–437.
[57]The Court referred for example to R v Wilson.
We acknowledge that, in Rapira, prospects for rehabilitation were not seen as necessarily of great significance in the context of the imposition of a sentence of life imprisonment. The Court commented that, in the case of a young offender sentenced to life imprisonment, use of the power under s 25 of the Parole Act 2002 for early consideration of parole may be appropriate where, through developing maturity and positive response to correction, the ten year minimum period of imprisonment ought to be reconsidered in the interests of justice.[58] The Court commented that this will be a matter for the chairperson of the parole board or perhaps for the Minister in exercise of the power under s 25(3) to designate a class of offenders for early consideration.[59]
[58] R v Rapira at [124].
[59] At [124].
However, s 25 of the Parole Act is not available for consideration where the offender is subject to a minimum period of imprisonment. This is made clear by s 25(5) of the Act. Section 25 is therefore unavailable as an avenue to reduce concerns about lengthy sentences of imprisonment on young persons. In these circumstances, considerations of youth and prospects for rehabilitation remain relevant to determining whether a 17 year minimum period of imprisonment is manifestly unjust.
Effect of mental health issues
Ms Bellve-Wack’s report also highlights some mental health issues. This Court recently summarised the relevance of impaired mental functioning to sentencing in E v R:[60]
(a) The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
(b) The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
(c) Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
(d)Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
(e) The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
(f)Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
Our comments on the Crown’s submissions
[60]E(CA689/10) v R [2011] NZCA 13 at [70], referring to the summary in R v Verdins [2007] VSCA 102, (2007) 16 VR 269 at [32].
Before applying the above principles to Ms Churchward’s case, we deal with the Crown’s submissions. We deal first with the Crown’s submission that Ms Churchward’s mental state at the time of the offending is uncertain and that the extent to which Ms Churchward’s mental state relates to her being in custody is also uncertain.[61]
[61] Referred to at [70] above.
It seems to us relatively clear from Ms Bellve-Wack’s report that Ms Churchward’s mental health issues pre-dated the offending (although they may have worsened after the murder).[62] The description of Ms Churchward by her mother in the days before the offending and the fact that she had just left a violent relationship bears this out.[63] Further, in terms of the effect that being in custody may have had on Ms Churchward’s mental state, we note that when Ms Bellve-Wack assessed Ms Churchward, Ms Churchward had expressed the view that prison was in fact a safe haven and a place where she could get her life back on track.[64]
[62]Ms Bellve-Wack opines that Ms Churchward has been anorexic and depressed in the past and that she exhibits symptoms of PTSD (related to her experience of abuse by a relative). Refer to [40] and [42] above.
[63] Referred to at [37] above.
[64] Referred to at [49] above.
As we noted above,[65] the Crown submits that Ms Churchward’s mental health issues cannot be clearly separated from her drug use. We acknowledge Ms Churchward’s drug use and that this included methamphetamine. However, her methamphetamine use appears to have occurred whilst she was residing in Auckland with her abusive partner. Ms Churchward says that she had not used drugs in the period just before the offending[66] and we note there had been no suggestion of her using drugs other than cannabis in Opotiki. Whilst drugs were a feature of the offending, in that Ms Churchward stated that her motivation for the offending was to steal money in order to purchase drugs, we recognise that it was her intention to purchase cannabis and not harder drugs.
[65] Referred to at [73](b) above.
[66]According to the pre-sentence report, Ms Churchward asserts that she was “straight and sober” at the time of the offending.
As to any link between Ms Churchward’s mental issues and the offending, we acknowledge the validity of the Crown’s description of the offending as brutal and premeditated.[67] However, we also note Ms Churchward’s strong attachment to her cousin (arising we understand out of her underdeveloped sense of identity). This appears to have led to a warped desire to please Ms Te Wini which appears to have been a factor in this offending.[68]
[67] Referred to at [71]–[72] above.
[68]We make no comment on the correctness or otherwise of Ms Churchward’s perception that Ms Te Wini wanted her to beat Mr Rowe.
We accept that Ms Churchward was almost past being a child as defined in the United Nations Convention on the Rights of the Child,[69] but youth is seen as a larger concept than childhood and extends past 18 years of age.[70]
[69] Article 1 of the Children’s Convention defines a child as a person below the age of 18 years.
[70]For example, youth has been taken into account as a mitigating factor in sentencing where the offender is older than 18 years old in Day v R [2010] NZCA 172, R v Fenton [2008] NZCA 379, R v McAllister (2001) 18 CRNZ 606 (CA) and R v Aiolupo CA58/01, 21 June 2001. See also the comments in BP v R at [5]–[7] per Hodgson JA.
We acknowledge there was no guilty plea to murder but manslaughter had been conceded. We also note that, in Ms Bellve-Wack’s view, the lack of remorse shown by Ms Churchward may have been part of an ingrained coping strategy due to previous trauma, and perhaps partly explained by her fierce protectiveness of her cousin.[71]
Application of principles to Ms Churchward
[71] Referred to at [45]–[47] above.
Ms Churchward’s mental health issues, her upbringing, her immaturity and her attachment to her cousin may at least partly explain what is otherwise an inexplicable crime. These factors cannot, however, excuse Ms Churchward’s actions, given the seriousness of the offending, but nevertheless mean that her culpability is lower than if she had been a mature adult.
Turning to the effect of prison on Ms Churchward, there are indications that, properly treated in prison and assuming her continued motivation,[72] prison may allow Ms Churchward to get her life on track. However, a 17 year minimum period of imprisonment would almost be as long as Ms Churchward has lived and there is a risk that a period of this length could have a crushing effect. We also consider that Ms Churchward’s mental health issues reinforce the conclusion that a minimum period of imprisonment of this length may weigh very heavily on her.
[72] Referred to at [48]–[49] above.
As to Ms Churchward’s prospects for rehabilitation, we refer to the distinction made by Dr Chaplow[73] between young offenders whose involvement in crime begins and ends in adolescence and young offenders whose involvement in crime continues into adulthood. It seems to us that there are indications that Ms Churchward may fit into the first group. She has had periods of major academic success and high ambitions for her future career. She appears to have had academic promise. She has also had a brief period of career stability as a hairdresser. There is hope that, with appropriate direction in prison, this early promise can be fulfilled, despite the terrible crime she has committed. The pre-sentence report notes that Ms Churchward is an intelligent young woman who has survived a dysfunctional childhood and does not assess Ms Churchward as being at a high risk of reoffending.
[73]Referred to in Dr Chaplow’s summary of the literature on adolescent brain development at [55] above.
On the other hand, there may be concerns that, if Ms Churchward does not have proper treatment, that her warped sense of having to please others (and in particular her family)[74] could lead to further anti-social behaviour. We note Ms Bellve-Wack’s concerns about the dangers which Ms Churchward may face in prison without appropriate interventions.[75]
Conclusion on sentence appeal
[74] Referred to at [31], [41] and [47] above.
[75]Referred to at [48]–[49] above. We understand that there has been an incident of fighting in prison but that her conduct and attitude have improved recently and that she is currently doing well in prison.
We accept the Crown’s submission that, if Ms Churchward had been an adult offender, Venning J correctly identified that a minimum period of imprisonment of 19 years would have been available.[76] Venning J thus did give some discount for youth in fixing the minimum period at 17 years.
[76]This Court recently upheld a 20 year minimum period of imprisonment as the starting point in Skilling v R [2011] NZCA 462, where an elderly occupant was murdered in the course of a home invasion. However, there were personal aggravating features in that case that were not present here which justified that starting point (that is, Mr Skilling had previous convictions for violent offences and the murder was committed while Mr Skilling was subject to a sentence of supervision and on bail for another offence).
Venning J did not, however, have the level of material available, including Ms Bellve-Wack’s and Dr Chaplow’s reports, that we have had. Taking those reports and all the factors discussed above into account, and in particular Ms Churchward’s prospects for rehabilitation and the crushing nature of a long sentence without the possibility of parole and the effect on rehabilitation this may have, we consider that the appropriate minimum period of imprisonment, but for s 104, would have been significantly less than 17 years.
We are, however, still required to consider whether to impose a minimum period of 17 years imprisonment would be manifestly unjust. We have regard to the observations of this Court in R v Williams, where it was said that manifest injustice will be shown where the circumstances of the offence and offender are such that the case does not fall within the band of culpability of a qualifying murder under s 104. We also have regard to the fact that Parliament has not chosen to make a specific exception for youth.
As a matter of overall impression, we conclude that it would be manifestly unjust for Ms Churchward to serve a minimum period of 17 years. While Ms Churchward’s offending was such that a starting point of 19 years would be justified, bearing in mind the powerful mitigating factors we have mentioned, we are satisfied that the appropriate minimum period would have been less than 17 years, so that to impose 17 years would be manifestly unjust. We consider the appropriate minimum period would be one of 13 years.[77]
[77]We note that the Crown accepted that, if this Court identified a different starting point from that set out in the Crown’s submissions, a discount of four years from the new starting point would be appropriate.
We note of course that lowering the minimum period of imprisonment does not mean that Ms Churchward will be released at the end of that period, absent clear rehabilitative steps having been achieved.[78] We also note that Ms Churchward’s sentence is life imprisonment and, even if released on parole, that she is subject to recall for life.
Result
[78]We refer in this regard to the risks we have identified at [103] which will be for the Parole Board to assess.
The appeal against conviction is dismissed.
The appeal against sentence is allowed in part. The minimum period of imprisonment is reduced to one of 13 years.
A copy of this judgment is to be provided to the Department of Corrections and attention drawn in particular to [48], [49] and [103] of this judgment.
Solicitors:
Crown Law Office, Wellington for Respondent
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