Official Assignee v Wilson

[2007] NZCA 122

IN THE COURT OF APPEAL OF NEW ZEALAND

CA334/06

[2007] NZCA 122

THE QUEEN

v

LISA HELEN RILEY

Hearing:8 March 2007

Court:Ellen France, John Hansen and Williams JJ

Counsel:A N D Garrett and D I Brown for Appellant

D J Boldt for Crown

Judgment:4 April 2007 at 3 pm

JUDGMENT OF THE COURT

A        THE APPEAL IS ALLOWED.

BThe sentence of seven years imprisonment is quashed and a sentence of six years imprisonment is substituted.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]       The appellant, together with Aaron Dale Grimwood, was convicted after trial in the High Court of manslaughter.  She was sentenced by Fogarty J, the trial judge, to a term of seven years imprisonment.  Mr Grimwood was sentenced to six years imprisonment.

[2]       The appellant appeals against sentence.  The appeal raises issues about the assessment of culpability by the sentencing Judge and of mitigating factors.

Factual background

[3]       Both the appellant and Mr Grimwood were charged with the murder of Phillip John Mullaly.  The victim was Mr Grimwood’s half-brother and he lived at Uxbridge Street in Christchurch together with the appellant, Mr Grimwood, their two children and the victim’s son.

[4]       Prior to the homicide, the appellant and Mr Grimwood had told others that they were concerned about the way the victim treated his son.  On the day of the homicide, the appellant and Mr Grimwood told the appellant’s half-sister that Mr Mullaly’s behaviour was so bad that they wanted to kill him.

[5]       On the evening of 30 August 2005, the appellant and Mr Grimwood had a long argument with the victim initially about a set of car keys.  In the course of the argument, the victim picked up a knife.  He was heavily intoxicated and Mr Grimwood was able to disarm him easily.  Mr Mullaly left the room and came back a little later with a broomstick which he used to threaten the three children.  He demanded that his son remove the television from the living room through to a bedroom.

[6]       Mr Grimwood stood up and struggled with Mr Mullaly and they fell to the ground.  He placed Mr Mullaly in a choker hold.  In her interview with the police, the appellant admitted that she kicked the victim in the back or ribs while he was on the ground.  Eventually, the victim stopped resisting, lost consciousness and, in all probability, died.  The two pathologists, Dr Sage and Dr Dempster, concluded that it was more likely that death was caused by strangulation.

[7]       At this point, the appellant got a scarf and told Mr Grimwood to tie the victim’s hands.  The two of them put the victim in the boot of their car.  The appellant drove Mr Grimwood and the victim to the Waimakariri River where they threw the victim into the water.  When the body floated back towards the bank, Mr Grimwood got into the water and pushed the body out further into the current.

[8]       That night after  the homicide, Mr Grimwood and the appellant went to see a family friend, Coralie Scott.  Ms Scott described Mr Grimwood as “pretty spun out” and said that he seemed shocked.  She said he was very white and pale and that the appellant was very quiet.  Mr Grimwood told her that he had killed Mr Mullaly.  He also said that at the house he and the appellant had checked Mr Mullaly’s heartbeat but could not find one, that he was not breathing, and that they were sure he was dead.  Finally, Mr Grimwood said he had put the victim in the car and then both he and the appellant went out to the river.  He had put the victim into the water and pushed him out.

[9]       Mr Grimwood and the appellant initially told the police that they had left the house shortly after Mr Mullaly produced the knife and went for a drive.  They said Mr Mullaly was alive at the time they left the house.  Their accounts of where they went during their drive differed substantially and a few days later they were re‑interviewed and admitted their roles in Mr Mullaly’s death.  The appellant told the police that she and Mr Grimwood initially thought they had killed the victim at the house but later thought that he was not dead.  She said:

[H]e wasn’t dead .. we thought oh no you know what what have we done sort of thing you know a fight I mean fights end up like that sometimes you know .. but yeah I don’t know, I don’t know what made us think that was my idea, I thought .. I freaked out I just totally freaked out you know, ..  and I just thought what do we do, chuck him down at the Waimak.

[10]     When asked further about this, she said:

A:Yeah, well I thought that we um well you know I thought Aaron had blocked off his circ, you know his circulation .. and killed him but he wasn’t dead as we discovered but um.

Q:How did you discover that?

A:Oh he still had a bit of a pulse didn’t he so.

[11]     The appellant accepted that she had stopped and felt the victim’s pulse and she thought he was still alive when they got to the river.

[12]     The appellant described the decision to tie the victim’s hands as follows:

Um, I don’t oh well I grabbed a scarf because I thought better tie his hands up because if he .. comes to he’s going to start throwing his fists around, so I don’t know if I no I think I told Aaron to tie them up.

[13]     She said she was pretty sure he was alive and she thought that Mr Grimwood believed that he killed him.

[14]     Mr Grimwood in his interview said that he only wanted to knock the victim out so that he could sleep off his intoxication.  He did tell the police that following his struggle he thought that Mr Mullaly was dead although he agreed he was not sure and hence the decsion to tie his hands.  In explaining why he had tied the knot on the victim’s hands he said that he had thought that if he was still alive he might “wake up and attack me”.  He continued that he thought he was dead “but then I don’t know”.  Mr Grimwood said it was his idea to put the victim in the river and that the appellant was freaked out.  He said he told the appellant: “We’ll just take him to the Waimak and put him in the river then.”  Mr Grimwood told the police that the appellant “didn’t like the idea but [she] went with it”.

[15]     In her evidence at trial, the appellant resiled from some of the more critical admissions.  She described an even-handed fight between Mr Grimwood and the victim and said that she kicked the victim because he appeared to be getting the better of it.  She claimed that when the victim was being held in a choker hold and was losing colour she had tried to save him by hitting Mr Grimwood with a toasted sandwich maker but had hit the victim by mistake in the face instead. 

[16]     Her evidence was that after Mr Grimwood stood up, it was apparent that the victim was dead and that Mr Grimwood had checked for a pulse but had not found one.  She said she told Mr Grimwood to tie the victim’s hands with a scarf to make it easier for him to drag the body through the house as she did not want to assist and did not want to touch the victim’s body.  She accepted that she had told the police that she believed that the victim was alive when he was taken to the river but said that that was not true.  Similarly, she said that she had told police that the disposal of the body at the river had been her idea but again at trial said she had not been telling the truth. 

[17]     The two forensic pathologists gave evidence that it was more likely that the victim died at Uxbridge Street or in transit to the river although they could not exclude the possibility that he drowned.  The Crown closed on the basis that the jury was entitled to find that the victim was alive when thrown in the river, that the two accused knew this, and that they could be convicted of murder on this basis.  The Judge intervened and ruled that the evidence could not sustain a conviction based on the actions of the two accused at the river.  The Judge ruled that the Crown could not prove beyond reasonable doubt that the victim had died after he was thrown into the river and accordingly the jury did not consider the possibility that he had been deliberately drowned.

[18]     The jury by its verdicts must have accepted that there was a reasonable doubt that Mr Grimwood intended to kill the victim at Uxbridge Street but rejected the defence case that he used only reasonable force in self-defence.

Sentencing remarks

[19]     Fogarty J sentenced the appellant on the basis of the following basis:

(a)The jury had rejected self-defence;

(b)The Crown did not prove that the appellant had assisted Mr Grimwood knowing that there was a real risk he had a murderous intent or was reckless;

(c)The appellant, while not seeing the fight as an opportunity to make sure the victim died, deliberately suggested putting the victim into the river meaning to make sure he died; and

(d)After the fight, the appellant’s behaviour was more culpable and she led Mr Grimwood on.

[20]     The equivalent findings in relation to Mr Grimwood were as follows:

(a)The Crown had not proved that Mr Grimwood had decided earlier on to kill or that he saw the fight as an opportunity to kill; 

(b)The Crown had not proved that Mr Grimwood meant to cause the victim’s death during the fight or that he was reckless about whether death ensued when he was choking him;

(c)The Crown had proved that Mr Grimwood was not sure that he was dead so that when he put him in the river, he was reckless as to whether death ensued.  He thought that the victim was dead but could not be sure; and

(d)At the start of the fight Mr Grimwood was acting out of self defence, particularly for the children.

[21]     The Judge took the view that the starting point for the appellant should be higher that the seven year starting point adopted for Mr Grimwood because of the seriousness of her conduct in taking Mr Mullaly to the river.  Fogarty J emphasised that the appellant drove the car to the river, Mr Grimwood being “too upset” to do so.  The Judge’s view at [28] was that “[i]f it had been left to [Mr] Grimwood Mr Mullaly would not have been thrown into the river.” 

[22]     A lower starting point, between three and five years imprisonment would have been adopted for the appellant if the incident had stopped with the fight.  The higher starting point of eight years was adopted because of what Fogarty J described as the appellant’s “deliberate callous behaviour” suggesting the victim be thrown into the river.  From that starting point, the Judge gave a discount for the fact that the appellant had offered to plead guilty to a charge of manslaughter.  Fogarty J’s assessment was that the appellant had not shown much sign of regret and so no further reduction was made for this aspect.

Basis of appeal

[23]     There are two main grounds of appeal.  The first relates to the assessment of the appellant’s culpability and the second to the discount for mitigating factors.

[24]     The appellant accepts that, in a general sense, the sentencing Judge was entitled to consider the appellant’s conduct after the fight.  However, the appellant’s case is that given the way in which the matter was put to the jury, the end result for the appellant was a sentence which was completely disproportionate to her culpability.  The submission is that the sentence does not reflect the appellant’s actual involvement either in the fight or after the fight.

[25]     The appellant then challenges the weight given to various mitigating factors, in particular, the offer to plead guilty to manslaughter, regret and remorse, the previous conduct of the victim, the appellant’s limited involvement, and the appellant’s age.

[26]     In written submissions, the appellant argued that her sentence should be less than that of Mr Grimwood.  In oral argument, Mr Garrett accepted that the matter could not be taken that far.  He focused on the submission the appellant’s sentence should be the same as that of Mr Grimwood and we proceed on that basis.

Assessment of culpability

[27]     The Crown emphasised on appeal that in determining the facts on which the appellant and Mr Grimwood would be sentenced, it was for the sentencing Judge to make such findings, consistent with the jury’s verdict, as the Judge thought appropriate.  Further, provided there was an evidential foundation for the Judge’s conclusions, it was for the Judge to determine the relative culpability of the two offenders: R v ES (CA260/06) 25 September 2006 at [13]; and, as to the particular advantage enjoyed by the trial Judge in manslaughter cases, R v Fate (1998) 16 CRNZ 88 at 93 (CA). 

[28]     The Crown also points to the importance of the attitude of the perpetrator towards the victim in the context of manslaughter cases.  The Crown submitted that it was open to the trial Judge to treat what occurred as one single overarching course of conduct.

[29]     In a general sense, we agree with those propositions and those principles may affect the relative culpabilities of a principal and a party.  We also agree that the Judge was correct to treat this case as something more than domestic manslaughter for the purposes of setting a starting point.  Indeed, on one view of it, the starting points adopted were generous because arguably both would have been liable for murder if the Crown had been able to prove the cause of death.

[30]     However, in the present case, the Judge’s direction to the jury as to how to approach the matter was also relevant to the Judge’s ability to take the view he did of the appellant’s conduct after the fight.  The Judge could not ignore what he had directed the jury was the factual position, that is, as Mr Boldt accepted, that the jury was to proceed on the basis that death occurred at Uxbridge Street.

[31]     If the matter is analysed consistently with the direction, the position is that the appellant had a limited involvement in a fight that probably killed the victim.  Then, on the Judge’s assessment, there was her greater involvement in the events after Uxbridge Street.  Given that this is not what probably killed the victim, it cannot be the case that her culpability is ultimately more than that of Mr Grimwood.  Plainly, if the matters had stopped with the fight, the appellant’s culpability was considerably less than that of Mr Grimwood.  What occurred subsequently took her to the same level but she could not by those actions have been more culpable than the other offender. 

[32]     Obviously the Judge is in an advantageous position to assess the facts having presided over the trial.  But, in terms of the facts, there is also some merit in the appellant’s argument that no weight at all has been given to Mr Grimwood’s statement about his involvement in events after the fight.  It is plain, for example, that Mr Grimwood tied the victim’s hands, it was he who pushed the body into the river, he was capable of inventing a story to the police later about his actions, and in his video interview he was equivocal at best about whether or not he thought that the victim was still alive at that point.  However, we do not need to finally resolve this aspect because of our view of the effect of the direction.

[33]     It was therefore manifestly excessive to adopt a higher starting point for the appellant than that adopted for the other offender.

Mitigating factors

(i)       Guilty plea

[34]     It appears that there were discussions between the defence and Crown on the Friday before the trial was to commence about the possibility of the two accused pleading guilty to manslaughter.  The matter had been raised although not in writing prior to this time but there was no serious consideration of the possibility until 16 June 2006.  Both accused offered to plead guilty to manslaughter that day and there were discussions about the factual basis on which such a plea might be entered although nothing was put in writing.  By the end of that day, the Crown Solicitor advised that the Crown would proceed with the murder charges.

[35]     Against this background, the appellant submits that a 12.5 per cent reduction for the offer to plead guilty was inadequate.

[36]     We accept the Crown submission, namely, that while it was open to the Judge to offer some credit to the appellant for this aspect, in light of the lateness of the discussions and the absence of the kind of “definitive factual account” contemplated in R v Edwards [2005] 2 NZLR 709 at [39] (CA), Fogarty J was entitled to regard the appropriate reduction as a modest one.

(ii)      Regret and remorse

[37]     The pre-sentence report said that the appellant, although regretful and wishing she could “rewind time”, did not understand the full extent of her criminality and was unable to accept that she was anything more than an accessory after the facts.  In these circumstances, it was open to the Judge to resolve this matter in the light of the impressions he formed at trial.

(iii)      Previous conduct of victim

[38]     The appellant relies on the Crown’s concessions in evidence during trial that it was apparent that the deceased when he was drunk, was violent, unpredictable, and unreasonable.  There had been a history of violence from the victim against other people including family members and particularly his own son.  The appellant also says that the evidence also suggested that Mr Mullaly had, immediately prior to this incident, threatened the two offenders with a knife.  As we have noted, the fight leading to Mr Mullaly’s death occurred after he had armed himself with a broomstick and threatened the safety of the three children.  The submission is that the Judge did not take into account or give sufficient weight to the appellant’s knowledge of the victim’s previous behaviour towards her and her children. Further, it is said that the appellant’s actions can be better understood once it is appreciated what she and the extended family endured at the hands of the deceased.

[39]     We agree with the Crown submissions that it cannot realistically be suggested that the Judge did not build these matters into the sentences.  The appellant’s sentence was based on them, and in sentencing Mr Grimwood the Judge expressly recognised that the fight was started by Mr Mullaly who was initially the aggressor.  The Judge also acknowledged that Mr Grimwood had good reason to intervene to protect his nephew from the deceased.  As the Crown says, there can be little doubt that both sentences would have been greater if Mr Mullaly had been the victim of an unprovoked and premeditated attack.

(iv)       Limited involvement in acts causing death

[40]     Assuming that the victim died at Uxbridge Street, the appellant’s role is limited to the delivery of a few blows during the fight, although not of a kind that would have contributed to the victim’s death, and encouragement.  We agree with the Crown that the Judge was plainly aware of the respective roles of the two offenders and it was her involvement in the conduct after the fight which influenced the Judge.

(v)Age

[41]     The submission is that the Judge did not give sufficient credit for the appellant’s relatively youthful age, 22 years and 11 months, at the time of the offence.

[42]     Again, we agree with the Crown submission that although there was no express reference to this factor in the Judge’s sentencing remarks, there can be no suggestion that the Judge did not consider all of the relevant matters disclosed in the pre‑sentence report.  Further, at almost 23 years of age, the appellant is not a particularly young offender and nor is there any suggestion that her involvement was the product of youth or inexperience.

[43]     Accordingly, we see nothing in the arguments based on the failure to take into account these further factors. 

Result

[44]     It follows that we consider the appellant should have received the same sentence as Mr Grimwood.  The appeal is allowed to the extent that the sentence of seven years imprisonment is quashed and a sentence of six years imprisonment is substituted.

Solicitors:

Crown Law Office, Wellington