Cornelius v R - [2014] NZCA 123

IN THE COURT OF APPEAL OF NEW ZEALAND

CA17/2014
[2014] NZCA 123

BETWEEN	SELWYN DAVID CORNELIUS Appellant
AND	THE QUEEN Respondent

Hearing:	25 March 2014
Court:	Stevens, Keane and Andrews JJ
Counsel:	A M Simperingham and B Shakell for Appellant J M Jelas for Respondent
Judgment:	7 April 2014 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

The appellant, Mr Cornelius, pleaded guilty to and was convicted of murder. He was sentenced by Gilbert J to life imprisonment, with a minimum period of imprisonment of 15 years and six months.[1]
[1]R v Cornelius [2013] NZHC 3435 at [25].
Mr Cornelius now appeals against this sentence on the grounds that the minimum term of imprisonment imposed was manifestly excessive. He submits that Gilbert J failed to account adequately for his early guilty plea and his remorse, and the alleged provocation by the victim. The Crown submits the minimum term of imprisonment finally imposed was within range and was appropriate in the circumstances, in light of the two-stage approach to be applied when sentencing for murder of this type.[2]
[2]According to R v Williams [2005] 2 NZLR 506 (CA) at [52]–[54].
These opposing contentions conveniently define the issues for determination on appeal.

Background

The factual background is not in dispute. In the week prior to the murder, Mr Cornelius had an issue with the victim, Mr Paaka. This concerned Mr Paaka’s puppy coming onto Mr Cornelius’ property and creating a nuisance. This altercation escalated to the point where Mr Cornelius, after attacking the puppy with a piece of wood, threatened to kill Mr Paaka’s puppy. Mr Paaka responded that if he did that, he would kill Mr Cornelius.
Later that day, Mr Cornelius described to a friend that he was going to “take Mark out”, and going to “hammer Mark” (referring to Mr Paaka). That evening, Mr Paaka was walking with a friend along the grass verge on the side of the road. Mr Cornelius drove his car directly at the victim, narrowly missing the friend. He yelled out “I’m going to fucking kill you” as he accelerated towards him.
Mr Cornelius hit Mr Paaka, who was thrown into the air and landed on the ground and drove over him. He then accelerated back towards the victim, driving over the top of him. He then drove over the victim a third time. He reversed, and then accelerated forward once more. The victim got stuck under the vehicle as Mr Cornelius continued driving forward for two metres before hitting a concrete fence, backing off the victim and driving back up the road.
The incident was witnessed by a number of bystanders. Mr Paaka’s injuries proved fatal.

Approach to sentencing

Section 104 of the Sentencing Act 2002 (the Act) governs the imposition of a minimum period of imprisonment of 17 years or more. In terms of s 104, Gilbert J accepted the Crown’s submission that the attack was committed with…

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.

Continue reading Cornelius v R

Details

AGLC: Cornelius v R [2014] NZCA 123
Case: [2014] NZCA 123
Decision Date: 7 April 2014 at 11.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand recently considered an appeal by Selwyn David Cornelius against his sentence for murder. Cornelius had pleaded guilty to the murder of Mark Paaka, who was killed when Cornelius deliberately ran him over multiple times with his car. The trial judge, Gilbert J, sentenced Cornelius to life imprisonment with a minimum non-parole period of 15 years and six months. Cornelius appealed against this sentence on the basis that the minimum term was manifestly excessive. The appeal hinged on whether the trial judge had appropriately taken into account the mitigating factors of Cornelius' early guilty plea and remorse, as well as any alleged provocation by the victim.

The Court of Appeal found that the murder was committed with a high level of brutality and callousness, justifying a starting point of 17 years' minimum imprisonment. However, the trial judge had appropriately reduced this starting point by 18 months, taking into account the early guilty plea and genuine remorse shown by Cornelius. The Court of Appeal rejected the argument that further discount should have been given for alleged provocation by the victim, finding that the circumstances did not reach the threshold of "manifestly unjust" required to reduce the statutory minimum sentence.

Ultimately, the Court of Appeal upheld the sentence imposed by the trial judge, dismissing Cornelius' appeal. The Court found that the 18 month discount for the mitigating factors was appropriate and that no further reduction was warranted. The Court emphasised the need to ensure the statutory minimum sentence is not readily displaced, contrary to the intent of Parliament.

Orders