Counsel: C J Tennet for Appellant R J Collins and D J McWilliam for Respondent
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]
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Churchward v R [2011] NZCA 531
Case
[2011] NZCA 531
Decision Date
CaseChat Overview and Summary
Courtney Pauline Churchward was convicted of the murder of John Alan Rowe, a 78-year-old pensioner, along with her cousin Ms Te Wini, in November 2008. The pair were sentenced to life imprisonment with a minimum period of imprisonment of 17 years. Churchward appeals against both her conviction and her sentence. The appeal against conviction focuses on several alleged errors made by the trial judge, including failing to direct the jury on the relevance of Churchward's youth to the issue of intent, and failing to comment on Ms Te Wini's decision not to give evidence. The appeal against sentence focuses on the length of the minimum period of imprisonment. Churchward submits that the trial judge should have considered her age and mental health issues as mitigating factors. The appeal against conviction is dismissed. The appeal against sentence is allowed in part, reducing the minimum period of imprisonment to 13 years.