Lane v R
[2010] NZCA 245
•10 June 2010
IN THE COURT OF APPEAL OF NEW ZEALAND
CA81/2010
[2010] NZCA 245BETWEENKARL JAMES COPLEY LANE
Appellant
ANDTHE QUEEN
Respondent
Hearing:3 June 2010
Court:Arnold, Wild and Simon France JJ
Counsel:R B Crowley and J A Younger for the Appellant
F Sinclair for the Respondent
Judgment:10 June 2010 at 2.30 pm
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
REASONS OF THE COURT
(Given by Wild J)
Introduction
[1] Mr Lane appeals against the minimum non-parole period of imprisonment (MPI) of 14 years fixed by Miller J, when he sentenced Mr Lane to life imprisonment in the Wanganui High Court on 23 September 2009. Mr Lane had pleaded guilty to one count of murder and two of kidnapping.
[2] The submission on appeal is that the MPI is manifestly excessive for two reasons:
(a)The Judge’s starting point of 15 years in arriving at the MPI was too high; and
(b)The deduction of two years (about 13 per cent) off that 15 years starting point allowed by the Judge for Mr Lane’s guilty pleas and remorse was insufficient.
The one year uplift applied by the Judge from his starting point to take account of aggravating features is not challenged. The contention for Mr Lane is that the starting point should have been 12 not 15 years, uplifted by one year to 13 years. Allowing a two year (some 20 per cent) discount for guilty pleas and remorse should have resulted in a sentence of 11 years.
The facts
[3] In June 2008 Mr Lane was driving around Wanganui. Three women and one man were passengers in the car. He had been drinking and using methamphetamine. He got into an argument with his three women passengers as to the whereabouts of two other people he wanted to confront. One of the women, Ms Bannister, said she knew where one of the two was. While Ms Bannister and Ms Coley were out of the car, Mr Lane turned to Ms Timmins who was sitting in the back seat with the man. He pointed a .38 mm pistol at her and demanded to know how long she had known Ms Bannister. She replied “Since Wednesday or Thursday”. Mr Lane said “You’re lying” and shot her through the temple. The man, who later described Mr Lane’s tone and manner as casual, panicked and fled the car.
[4] The other two women then returned. When Mr Lane told them he had shot Ms Timmins they did not believe him and got into the car. He then threatened them with the pistol and demanded that Ms Coley drive around Wanganui. This happened for about 20–25 minutes, and formed the basis of the two kidnapping charges. Mr Lane refused repeated requests to take Ms Timmins to hospital, and ordered Ms Coley to drive to Kaitoke Forest where he could “finish her off”. At some point the two women managed to escape from the car. Mr Lane then drove the car around himself, with Ms Timmins still unconscious and dying in the back seat. He went to Ms Coley’s address and spoke to her children. Ms Coley telephoned her home and Mr Lane told her he was there. The Judge observed “her panic can only be imagined”.[1] Mr Lane then drove off and the Police later found the car parked in a Wanganui street, locked. Ms Timmins was rushed to hospital but was mortally wounded and died after life support was removed a few days later.
[1]R v Lane HC Wanganui CRI-2008-069-1389, 23 September 2009 at [5].
[5] Mr Lane later left Wanganui. His car was found in Taupo three days later. His family, who thought he was suicidal, managed to persuade him to give himself up to the Police. He was arrested while driving back to Wanganui with two family members to do that. He told the Police he did not mean to shoot Ms Timmins, although he ultimately pleaded guilty.
The sentencing
[6] Miller J noted that Mr Lane blamed the crimes on his serious methamphetamine habit, maintaining he had not slept during the previous four days and was acting irrationally. He noted also that Mr Lane accepted he had been showing off with the pistol earlier in the evening, but maintained the killing was not premeditated. He mentioned that Mr Lane regarded Ms Timmins as a friend. It was submitted, for Mr Lane, that the murder was “a momentary lapse of irrational behaviour”, of which Mr Lane remembered little.
[7] The Judge referred to the nine victim impact statements from Ms Timmins’ family and friends. She left two children, aged six and seven. He noted that the statements “speak powerfully of ... shock, anger, and grief, and an enduring sense of loss”.[2]
[2]At [10].
[8] The Judge referred next to Mr Lane’s personal circumstances. He was 30, with a partner and two young sons. Despite heavy drug and alcohol use, Mr Lane had maintained employment as a slaughterman. The Judge mentioned Mr Lane’s “very strong family support”,[3] and commended the family for counselling Mr Lane to turn himself in and accept responsibility for murder. Importantly, the Judge mentioned the probation officer’s acceptance that Mr Lane felt “deep remorse for the killing and empathy for the family of Ms Timmins”,[4] to the extent that he was at risk of self-harm. The Judge noted that Mr Lane’s motivation to reform was assessed at high, but also the recommendation that Mr Lane required treatment for his drug addiction and propensity for violence. The latter was reflected in Mr Lane’s criminal record. It included seven convictions for offences of violence, the most serious of them for injuring with intent to cause grievous bodily harm. Two of the offences had involved a weapon. Miller J noted that Mr Lane had been on bail, awaiting sentence on one of the violence charges when he murdered Ms Timmins.
[3]At [14].
[4]At [13].
[9] The Judge termed the killing callous and brutal, as well as “utterly senseless and shocking”.[5] He said it had something of the quality of an execution, albeit unplanned. He noted that Mr Lane had not only failed to get medical attention for Ms Timmins, but had threatened to finish her off. Whilst accepting an element of panic, the Judge said its cause was knowledge of the consequences, which Mr Lane sought to escape by kidnapping the two women and later fleeing Wanganui. He said “all of this adds to the callousness of the crime”.[6] It was only “by a small margin” that Miller J found that s 104 of the Sentencing Act 2002, and thus a minimum sentence of imprisonment of 17 years, did not apply.[7]
[5]At [20].
[6]Ibid.
[7]Ibid.
[10] The Judge fixed his sentencing starting point of 15 years imprisonment, guided particularly by four cases he listed.[8] To that starting point the Judge applied a one year uplift reflecting Mr Lane’s previous convictions for violence, and the fact that he had committed these crimes while on bail awaiting sentence (he was subsequently sentenced to two and a half years imprisonment).
[8]R v Hoko (2003) 20 CRNZ 464 (CA); R v Houma [2008] NZCA 512; R v Walsh (2005) 21 CRNZ 946 (CA); R v Rewiri HC Rotorua CRI-2006-063-2149, 22 February 2008.
[11] For his guilty pleas, which the Judge viewed as “tangible evidence of remorse and acceptance of responsibility”, the Judge allowed a discount of two years or about 13 per cent of his starting point. Thus his end sentence of 14 years imprisonment (15 + 1 – 2 = 14 years). Concurrent sentences of three years imprisonment were imposed on each of the two kidnapping counts.
Sentencing starting point too high
[12] Ms Younger put the appellant’s submissions. She aligned herself with the Judge’s view that s 104 of the Sentencing Act did not apply here. She next referred to s 8(3) of the Sentencing Act, the principle that the sentencing Court must take into account the general desirability of consistency with appropriate sentencing levels. She contended that this case could be compared with four murder sentencing decisions.[9] Of those, she contended that Walsh was the most comparable, so we need to summarise its facts. Despite friction between the two men, Mr Linwood was one of the guests at Mr Walsh’s 35th birthday dinner party. Around 8 pm Mr Walsh whispered to a female guest “I’m going to stab Don (Linwood) tonight” and started laughing. He did stab him. Around 11 pm Mr Walsh became agitated. Mr Linwood was sitting at the kitchen table with his 11 year old son. Mr Walsh started yelling at him to leave. He picked up a large skinning knife and held it toward Mr Linwood threatening him “I’m going to fucken stab you”. Other guests yelled at Mr Linwood to leave and he did. Efforts by others to restrain Mr Walsh from pursuing him failed and he stabbed Mr Linwood twice from behind. After Mr Linwood had slumped to the ground Mr Walsh stomped on his head and went back inside where he rinsed the knife and put it back in its sheath. Then he went outside again and dragged Mr Linwood’s body across the front lawn and garden and over to the opposite side of the road where he left the body lying in the gutter.
[9]R v Walsh; R v Reti HC Whangarei CRI-2007-027-2103, 9 December 2008; R v M HC Christchurch CRI-2006-009-65, 7 September 2006; R v Rewiri.
[13] The decision makes no mention of Mr Walsh’s previous criminal record, if any. It does mention that he pleaded guilty about six months after the murder. The Court was dismissive of Mr Walsh’s claim that he was “sorry for his actions”, and saw the only mitigating feature as the guilty plea. But, in the circumstances, the Court considered that “justifies a significant reduction”. The Court reduced the MPI imposed by the trial Judge from 13 to 11½ years. An amendment to s 103 of the Sentencing Act had come into force the day before Mr Walsh was sentenced, and most of this Court’s judgment is concerned with the issue of whether the old or the new s 103 applied.
[14] Walsh has similarities with the present case, but also differences. In Walsh there was premeditation which is absent here. Mr Lane’s callous disregard for the fact that he had mortally wounded Ms Timmins continued for some time after the event. Beyond the facts we have recited, it is not clear what subsequently happened in Walsh. As Miller J noted, methamphetamine played a part in what Mr Lane did, while there seems to be no suggestion of that in Mr Walsh’s case (in making this point we do not overlook s 9(3) of the Sentencing Act). Mr Lane had a record of serious violent offending, and murdered Ms Timmins while on bail awaiting sentence for violence. There is no mention of such aggravating factors in Mr Walsh’s case.
[15] Although evaluation with comparable sentencing decisions has its role, the issue for us is whether the 15 year sentencing starting point was within the range available to the Judge. We think it was. The most compelling indication is that we agree with the Judge’s assessment that this case lay only just outside the reach of s 104 of the Sentencing Act.
[16] This first appeal point fails.
Discount insufficient
[17] Ms Younger’s submission was that the combination of Mr Lane’s guilty pleas and his demonstrations of remorse required a reduction greater than the two years (13 per cent of the starting point) allowed by the Judge.
[18] Ms Younger made some submissions about this Court’s guilty pleas guideline judgment in R v Hessell.[10]That guideline did not apply to the sentencing under appeal, because it took effect on 3 October 2009. As it happens, Hessell is also under appeal.
[10] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.
[19] Mr Crowley informed us that he was able to convey Mr Lane’s intention to plead guilty to the Crown about six weeks before the scheduled trial. Ms Younger’s submissions merely reiterated an explanation for that delay which Miller J had rejected. Like the Judge, we regard it as a guilty plea entered, though not on the eve of trial, only shortly before it.
[20] What of remorse? Ms Younger contended that the following points demonstrated “almost immediate” remorse:
(a)Mr Lane sending Ms Coley a text message telling her where he had left the car with Ms Timmins lying unconscious in it, so that she could obtain assistance for her.
(b) Mr Lane disappearing to commit suicide.
(c) His efforts to turn himself in.
(d)Mr Lane’s full admission to the Police once he was interviewed by them, including apologising for what he had done.
[21] In as much as all this amounted to a demonstration of real remorse, we think it was adequately reflected in the Judge’s two year discount.
[22] This second appeal point also fails.
Result
[23] As neither point taken on appeal has succeeded, the appeal against sentence is dismissed.
Solicitors:
R B Crowley, Wanganui for Appellant
Crown Law Office, Wellington for Respondent
3
3
0