Gempton v R
[2011] NZCA 349
•27 July 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA703/2010 [2011] NZCA 349 |
| BETWEEN ADAM ROBERT GEMPTON |
| AND THE QUEEN |
| Hearing: 14 July 2011 |
| Court: O'Regan P, Arnold and Stevens JJ |
| Counsel: R G Glover for Appellant |
| Judgment: 27 July 2011 at 11.30 am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
REASONS OF THE COURT
(Given by Arnold J)
Introduction
The appellant, Mr Gempton, was convicted of murder following a jury trial. Chisholm J sentenced him to life imprisonment with a minimum period of imprisonment of ten years.[1] Mr Gempton appeals against his sentence, on the basis that the imposition of life imprisonment was “manifestly unjust” within the meaning of s 102 of the Sentencing Act 2006.
Background
[1] R v Gempton HC Christchurch CRI-2009-009-13468, 13 October 2010.
The 24 year old victim, Timothy Constable, had been in a somewhat volatile relationship with 18 year old Gisinda Coombs for around five months. Ms Coombs decided that she needed a break from Mr Constable and went to stay at her family home. There was a gathering there the following evening, at which Mr Gempton, then 20, his partner and their baby daughter were present.
The people who had gathered began drinking about 5pm. During the course of the evening, Mr Constable sent text messages to Ms Coombs, to the effect that he wanted to come round and see her. Ms Coombs was receptive to this, although some of the text messages that passed between the two were abusive in nature. The others who were present at the address were aware that Mr Constable might visit the house in order to see Ms Coombs and were opposed to her seeing him. Some of them exchanged abusive text messages with Mr Constable, who responded by threatening to blow up the house and kill Ms Coombs’ sister.
Mr Gempton knew Mr Constable. He knew that he was capable of violence and had seen him shoot at a car whose occupants had annoyed him. The evidence indicated that Mr Gempton thought that Mr Constable had “narked” on a friend. Sometime before Mr Constable came to the house, Mr Gempton went into the kitchen, took a knife and put it into his back pocket. He was heard to say that if Mr Constable came to the house, he would stab him, tie him up and put him in the boot of his car. Mr Gempton also sent a text message to an associate saying that he was going to stab Mr Constable.
Mr Constable went to the house by car with his father in the early morning. Mr Constable had a realistic-looking replica firearm with him, although that does not seem to have featured in what followed. Ms Coombs went out to see him, to the consternation of the others at the house. Mr Constable tried to get Ms Coombs into the car. Some of those present thought that Mr Constable was attempting to abduct her and a melee ensued. The precise circumstances of this are unclear, except that Mr Constable suffered a number of external injuries as a consequence. Ultimately Mr Gempton inflicted four stab wounds on Mr Constable, one of which severed Mr Constable’s aorta, causing his death.
The Crown case was that Mr Gempton waited until the fracas had ended and had then gone outside with the knife and killed Mr Constable. The Crown alleged that this was a deliberate killing, intended to deal with a “nark”. The Crown emphasised the fact that Mr Gempton had armed himself in advance of Mr Constable’s arrival and had said at least twice that he was going to stab him.
Mr Gempton did not give evidence at trial. While not disputing that he had stabbed Mr Constable, he denied that he had intended to kill him. He raised self-defence/defence of another, submitting that he had acted in defence of his partner, whom he had seen on the ground and thought was being kicked by Mr Constable, and of Ms Coombs, whom he thought Mr Constable was taking against her will. He emphasised that he knew of Mr Constable’s reputation for violence and that he had a gun. He submitted that, even if self-defence/defence of another was rejected, he should be guilty of no more than manslaughter.
The jury rejected the submissions made on Mr Gempton’s behalf and convicted him of murder.
Sentencing
At sentencing Mr Gempton’s counsel, Mr Glover, argued that this was a case in which the Court should exercise its power under s 102 of the Sentencing Act to impose a lesser sentence than life imprisonment. That section provides:
102 Presumption in favour of life imprisonment for murder
(1)An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.
(2)If a court does not impose a sentence of imprisonment for life on an offender convicted of murder, it must give written reasons for not doing so.
(3)This section is subject to section 86E(2).
Chisholm J recorded Mr Glover as arguing that the people at the house were relatively young. They were in the position of having to deal with a visit by Mr Constable, a person known to be violent and unpredictable. The atmosphere at the house was tense and the occupants were affected by emotions of fear and panic. Mr Gempton was effectively provoked by what he perceived Mr Constable to be doing to his partner and to Ms Coombs and the killing was reckless rather than intentional. Although the jury had rejected self-defence/defence of another, it must have done so on the basis that the force used was excessive, rather than on the basis of an absence of self-defence.
Chisholm J accepted that provocation could be taken into account in the s 102 evaluation and that there was provocation in the present case. However, he noted that there were countervailing features – there was premeditation on the part of Mr Gempton in arming himself with a knife, Mr Gempton had added to the tension by making threats and, further, he had inflicted several stab wounds in addition to the fatal blow. The Judge considered that a sentence short of life imprisonment would undermine the purposes of denunciation and deterrence. It would, he said, “send the wrong message to the community”.[2]
[2] At [31].
The Judge accepted that Mr Gempton was young and genuinely remorseful. However, he did not see the circumstances as sufficient to overcome the presumption in s 102. The Judge noted that the jury’s verdict might be explained on the basis that they did not accept that Mr Gempton was acting in self defence/defence of another rather than that he was so acting but simply used excessive force.
Accordingly, Chisholm J sentenced Mr Gempton to life imprisonment with a minimum period of imprisonment of 10 years.[3]
Basis for appeal
[3] Sentencing Act, s 103.
At the time of trial, provocation was still available as a defence to murder. Mr Glover said that he did not feel able to raise provocation as the events of the Weatherston trial[4] were still fresh in the minds of the public. That trial, he said, had poisoned the public’s perception of provocation as a partial defence. Rather, Mr Glover submitted, circumstances amounting to provocation could be taken into account under s 102, as Parliament has made clear following the abolition of provocation as a defence to murder.[5]
[4] See Weatherston v R [2011] NZCA 276.
[5] See the Explanatory Note to the Crimes (Abolition of the Defence of Provocation) Bill 2009.
Mr Glover submitted that there were a number of factors which, taken together, meant that it was manifestly unjust to impose life imprisonment in the present case:
(a)The Court could properly conclude that provocation and fear were dominating features in Mr Gempton’s decision to arm himself with a knife. Mr Gempton had done so as a result of:
·Mr Constable’s threats;
·his knowledge of Mr Constable’s propensity for violence; and
·the presence of his partner and baby daughter at the house.
(b)It was likely that the jury convicted Mr Gempton on the basis that he was reckless as to whether death ensued as a result of the use of the knife rather than that he had an intention to kill.
(c)Mr Gempton’s youth impacted on the level of culpability that could be attributed to him.
Our evaluation
This Court described the approach to be taken to the power conferred by s 102 in R v Rapira,[6] which was concerned with the question whether the youthfulness of the offenders provided a basis for departing from the statutory presumption of life imprisonment. Speaking for the Court, Elias CJ said:
[121] ... The test is that the sentence of life imprisonment is manifestly unjust. That conclusion has to be made on the basis of the circumstances of the offence and the offender. It is an overall assessment. The injustice must be clear, as the use of “manifestly” requires. The assessment of manifest injustice falls to be undertaken against the register of sentencing purposes and principles identified in the Sentencing Act 2002 and in particular in the light of ss 7, 8 and 9. It is a conclusion likely to be reached in exceptional cases only, as the legislative history of s 102 suggests was the expectation. Thus, on introduction of the Sentencing and Parole Reform Bill, the Minister of Justice (at 594 New Zealand Parliamentary Debates, p 10910) referred to its retention of “a strong presumption in favour of life imprisonment for murder”:
“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.”
...
[123] The Sentencing Act contains no restriction on a sentence of life imprisonment on a young person who is criminally responsible. The presumption expressed by s 102 is legislative identification of the public interest in maintaining life imprisonment as the standard response for murder unless such response is manifestly unjust. Youth of itself could not be a sufficient reason to make life imprisonment manifestly unjust if the offender had the necessary intent (under s 167) or knowledge of consequences (under s 168) to be guilty of murder, in the absence of a statutory direction to that effect.
[6]R v Rapira [2003] 3 NZLR 794 (CA). See also R v Mayes [2004] 1 NZLR 71 (CA) and R v O’Brien (2003) 20 CRNZ 572 (CA).
As Mr Glover pointed out, when Parliament abolished the partial defence of provocation, it clearly had in mind that mitigating circumstances of the type that would have amounted to provocation can be taken into account by a court on sentencing, through s 102.[7] This, he argued, required a purposive interpretation of s 102, in particular in relation to “the circumstances of the offence and the offender”. If such an interpretation was adopted, he said, there may be varied situations in which the presumption could be displaced, including where there was threatening and provocative behaviour on the part of the victim, as in the present case.
[7] See the Explanatory Note to the Crimes (Abolition of the Defence of Provocation) Bill 2009.
The question of the interaction between, on the one hand, s 102 and, on the other, circumstances that would, before its abolition, have amounted to provocation is an interesting one, which the courts will have to confront in due course. We do not think it necessary to address it in any detail in this case, however.
First, provocation was available as a defence to murder at the time of Mr Gempton’s trial. Mr Glover said the defence was not raised because of the difficulties inherent in it and the public reaction following the Weatherston case. But if the facts had supported it, provocation could and should have been raised. Indeed, had there been a credible narrative supporting provocation, it would have been the duty of the Judge to put it to the jury.[8] If the defence had been raised, it would have been the Judge’s task to ensure that the jury assessed the defence dispassionately, free from prejudice or misconceptions.
[8]See R v Sarah (1990) 5 CRNZ 663 (CA) at 667; R v Turaki [2005] 3 NZLR 329 (CA) at [11].
However, the facts did not lend themselves to the defence. Mr Gempton did not give evidence at trial. Mrs Guy Kidd noted that in his statement to the police, Mr Gempton said that he had never “crossed wires” with Mr Constable. As a consequence, there was no direct evidence from him that he had been provoked by Mr Constable’s past actions or had suddenly lost his self-control on the night in question. Moreover, on the face of it this was not a situation where things suddenly got out of control. Rather, there was concern among the group throughout the evening that Mr Constable might come to the house. Mr Gempton prepared for that eventuality by obtaining a knife, and subsequently said that he was going to stab Mr Constable.
When Mr Constable did come to the house, he made no effort to enter it. Rather, he stood at the end of the driveway waiting for Ms Coombs to come out. He was set upon by those from the house as he attempted to persuade Ms Coombs to leave with him, which she was apparently willing to do. Mr Gempton was in the house at this stage and came out towards the end of the altercation. Mr Gempton argued that he had attacked Mr Constable only after seeing him kicking his partner in the head. However, even if Mr Constable had kicked Mr Gempton’s partner, this was not a case of an unexpected, sudden loss of self-control of the type that the defence of provocation recognised. On these particular facts it is difficult to see how Mr Gempton could have succeeded on provocation if his case based on self-defence/defence of another did not succeed.
Second, Chisholm J accepted that Mr Constable had acted in a threatening and provocative way and that this was relevant to the assessment that he was required to make under s 102. Indeed, at sentencing the Crown accepted as much. But the Judge concluded that the circumstances were insufficient to displace the presumption of life imprisonment. Rather, he said, the purposes of denunciation and deterrence required a sentence of life imprisonment. In our view, the Judge was entitled to reach this view. We consider that the circumstances of this case do not render a sentence of life imprisonment clearly unjust.
As we have said, there was evidence of premeditation in that Mr Gempton armed himself with a knife in advance of Mr Constable’s arrival. He told people that he intended to stab Mr Constable, who he thought was a police informer and had informed on a friend. Mr Glover sought to dismiss these features of the case by saying that Mr Gempton’s arming himself with the knife resulted from his justified fear of Mr Constable and that his threats were empty bravado brought about by the tension that Mr Constable’s threats and imminent arrival had engendered within the group at the house.
However, the Judge was aware of these contentions and rejected them. He had the advantage of presiding over the trial. He was able to obtain some feel for the events of the evening and the personalities and actions of those involved and so was much better placed than we are to reach an assessment on these matters. We consider that he was entitled to reach the view that he did.
Further, on the material available to us, we agree with the Judge’s assessment. We do not consider that this is an exceptional case justifying a departure from the presumption in s 102.[9] Rather, as the Judge noted, the case has characteristics that are frequently seen in serious assaults and killings – those involved were young people who had been drinking and who engaged in provocative and threatening conduct on both sides, which escalated into physical violence and, in this case, death.
Decision
[9] R v Ripara at [121].
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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