Purutanga v R
[2023] NZCA 442
•13 September 2023 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA550/2022 [2023] NZCA 442 |
| BETWEEN | CORY PURUTANGA |
| AND | THE KING |
| Hearing: | 20 June 2023 |
Court: | Goddard, Brewer and Osborne JJ |
Counsel: | J E L Carruthers for Appellant |
Judgment: | 13 September 2023 at 11.00 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brewer J)
Introduction
On 31 August 2022, Moore J sentenced Mr Purutanga, on one charge of murder, to life imprisonment with a minimum period of imprisonment (MPI) of 17 years.[1]
[1]R v P [2022] NZHC 2197.
Mr Purutanga appeals the length of his MPI.[2] He submits it is manifestly unjust. In particular, the Judge:
(a)gave inadequate credit for Mr Purutanga’s guilty plea; and
(b)was unduly dismissive of Mr Purutanga’s personal mitigating factors.
[2]Mr Purutanga also appealed Lang J’s refusal to grant him permanent name suppression: Purutanga v R [2022] NZHC 2616. He no longer pursues that appeal and so his interim name suppression will lapse with the delivery of this judgment.
We must allow the appeal if satisfied that there is an error in the sentence and that a different sentence should be imposed.
Background
We reproduce Moore J’s recitation of the facts of the offending:
[4] H was your long-term partner. The two of you began your relationship some 15 years ago. You were teenagers at the time. When she was 16, H moved into your home with your parents. Approximately two years into your relationship, you and H had your first child together. You went on to have another four more children together although one died shortly after he was born. At the time you killed H your surviving children were aged 13, 10, 4 and four months.
[5] Your relationship was a volatile one. You commonly abused H both verbally and physically. You hit her and you gave her “hidings”. You were controlling, often preventing her from leaving the home or requiring her to return on those occasions when she did venture out.
[6] On 16 December 2020, you were at home with H and your children. Sometime during the day, you badly beat her. You broke her nose and you caused bruising to her scalp and face.
[7] Later that evening, your eldest son contacted your mother asking her to come over. He feared you would have another “fight”. Your mother video-called H. H signalled that she needed help. Plainly she was terrified you might find out that she was talking with your mother. She was forced to communicate in a non-verbal way so you wouldn’t hear and subject her to more violence.
[8] At around 9:15 pm, your mother arrived at your home. She attempted to mediate. Because of your behaviour, she arranged for your father to pick up the two older children.
[9] H went into one of the bedrooms with the two youngest children, while your mother attempted to distract you by keeping you in the kitchen. H took this opportunity to dial 111 and request immediate assistance. She told the operator that if she hung up it was because you were coming.
[10] At this point you realised that you were being distracted by your mother. You charged past her and entered the bedroom. H could hear you coming. She told the operator “here he comes” and hung up. You grabbed the phone from H and saw that the 111 call had been made. Without saying anything, you left the bedroom and went back to the kitchen. There you picked up a large boning knife. You pushed your mother out of the way. You walked back to the bedroom.
[11] H was lying on the bed. Your four-month-old baby was asleep between her legs. Your four-year-old child was awake in the room, presumably watching what was going on.
[12] You leapt on top of H and began a frenzied attack using the boning knife. You repeatedly stabbed her upper body.
[13] You inflicted a total of 17 stab wounds to H’s neck, chest, abdomen and limbs. These included:
(a)four stab wounds to her neck. These injured her right internal jugular vein, went through her trachea, cut through the fourth cervical vertebra and almost completely divided the cervical spinal cord;
(b)nine stab wounds to her chest and abdomen. These injured multiple internal organs and caused extensive internal bleeding; and
(c)four stab wounds to other parts of her upper body, including her left arm, right shoulder and right middle finger.
[14] Your mother bravely tried to intervene to stop the attack. As she did you sliced her hand.
[15] You then left the property. You went to your parents’ house. You told your father that you had “done bad” and that you were “going away for a long time”.
[16] In the meantime, back at your home, neighbours arrived in a frantic but ultimately futile, attempt to save H’s life. They gave her first aid. Emergency services were called. Despite everyone’s best efforts, H died of her injuries and was pronounced dead at the scene.
Before describing how Moore J decided that an MPI of 17 years should be imposed, we will briefly set out the legislative context.
Legislation governing sentencing for murder
A person convicted of murder must be sentenced to life imprisonment unless to do so would be manifestly unjust.[3] It is not suggested in this case that Mr Purutanga should not be sentenced to life imprisonment.
[3]Sentencing Act 2002, s 102(1).
Where an offender convicted of murder is sentenced to life imprisonment, the Court must either order that the offender serve an MPI or order that the offender serve the sentence without parole.[4] It is not suggested a fixed MPI is insufficient in Mr Purutanga’s case.
[4]Sections 103(1) and 103(2A).
The Court must impose an MPI of at least 17 years if one or more of specified circumstances apply, unless to do so would be manifestly unjust. The circumstances are:[5]
[5]Section 104(1).
(a)if the murder was committed in an attempt to avoid the detection, prosecution, or conviction of any person for any offence or in any other way to attempt to subvert the course of justice; or
(b)if the murder involved calculated or lengthy planning, including making an arrangement under which money or anything of value passes (or is intended to pass) from one person to another; or
(c)if the murder involved the unlawful entry into, or unlawful presence in, a dwelling place; or
(d)if the murder was committed in the course of another serious offence; or
(e)if the murder was committed with a high level of brutality, cruelty, depravity, or callousness; or
(ea)if the murder was committed as part of a terrorist act (as defined in section 5(1) of the Terrorism Suppression Act 2002); or
(f)if the deceased was a constable or a prison officer acting in the course of his or her duty; or
(g)if the deceased was particularly vulnerable because of his or her age, health, or because of any other factor; or
(h)if the offender has been convicted of 2 or more counts of murder, whether or not arising from the same circumstances; or
(i)in any other exceptional circumstances.
The sentencing
Justice Moore first decided what an appropriate MPI would be absent the statutory requirements under s 104.[6] The Judge identified five aggravating factors being the victim’s vulnerability, the breach of family trust, the degree of premeditation, the use of the large boning knife to inflict 17 wounds, and the targeting of the victim’s neck.[7]
[6]The first of three steps suggested by this Court in Davis v R [2019] NZCA 40, [2019] 3 NZLR 43 at [25].
[7]R v P, above n 1, at [26].
Having considered comparator cases, the Judge considered a notional starting point for the MPI of 17 years and six months to be appropriate.[8]
[8]At [36].
Next, the Judge considered whether circumstances personal to Mr Purutanga should result in an adjustment.
The Judge acknowledged Mr Purutanga’s plea of guilty and noted that, commonly, MPIs are discounted by one to two years to recognise pleas of guilty. The Judge allowed a one year discount. He said:[9]
… I consider one year appropriate. This is not a case where you acknowledged your guilt from the beginning and pleaded guilty at the earliest practical opportunity. The 18 months between H’s death and you pleading guilty included a number of adjournments of trial dates pending an expert report to examine whether the defence of insanity was available to you, three changes of legal representation, refusals to participate or even engage in interviews addressing your fitness to plead and a plea of guilty entered just 10 days before the scheduled trial date. It is that combination which has led me to conclude that you are entitled to a discount only at the lower end.
[9]At [39].
The Judge then considered a cultural report on Mr Purutanga, a psychiatric report and a pre-sentence report. The Judge concluded:
[48] It follows I cannot uncritically accept that your offending was in part caused by psychotic symptoms. Nor that you were sexually abused as a child and that the abuse precipitated a decline in your mental health and consequent drug use. Put simply I cannot give these matters as much weight as might otherwise be the case.
[49] This is compounded by the fact that the Court’s discretion to give credit for personal factors such as these is restricted in murder cases.[10] General disadvantage in your upbringing relating to mental health issues and drug use carries less weight.
[50] In any event, much of your background has a limited nexus with your offending. On any measure, this was a particularly brutal and callous murder. It does not seem that you were exposed to family violence as a child. Later exposure to your peers engaging in family violence is of a different order of seriousness. It is also notable that what you report took place in your late teens, at a time when you were old enough to know better. You continued meting out violence to H despite your mother’s efforts to stop you behaving in that way.
[51] It follows that the aspects of your background described above do not materially mitigate your moral culpability for what you did.
[10]Hohua v R [2019] NZCA 533 at [44].
The notional MPI the Judge found appropriate was 16 years and six months.[11]
[11]R v P, above n 1, at [52].
The second step in the Judge’s analysis was to decide whether any of the s 104 circumstances are engaged. He concluded that one is.[12] The murder was committed with a high level of brutality, cruelty, depravity and callousness.[13]
[12]At [58].
[13]Sentencing Act, s 104(1)(e). The Judge did not reach a firm conclusion on whether vulnerability under s 104(1)(g) was present, instead only noting that the victim was particularly vulnerable.
The third step taken by the Judge, given that his notional MPI was six months less than the 17 years MPI presumed by s 104, was to consider whether an MPI of 17 years would be manifestly unjust. The Judge concluded that an MPI of 17 years would include an element of recognition for the plea of guilty and would not be manifestly unjust.[14]
The appeal
[14]R v P, above n 1, at [62]–[63].
Mr Carruthers, for Mr Purutanga, accepts that s 104 is engaged because of the brutality of the murder. He also accepts that a notional starting point of 17 years and six months was available to the Judge. But, he submits, a two year reduction for Mr Purutanga’s guilty plea and personal circumstances was called for. An appropriate MPI would therefore have been around 15 years and six months. Therefore, he says, the MPI of 17 years imposed by Moore J is manifestly unjust.
Mr Carruthers first challenges the discount of one year given for the entry of the guilty plea. The submission is that the Judge was insufficiently nuanced in his description of Mr Purutanga’s behaviour leading to the guilty plea 10 days before the scheduled trial.
Mr Carruthers submits, and we accept, that it would not have been prudent for Mr Purutanga to plead guilty until his mental health state at the time of the murder was evaluated. That was done by Dr Dean. Mr Purutanga pleaded guilty three weeks after receiving Dr Dean’s report.
Mr Carruthers submits also that Moore J placed too much weight on the
pre-sentence report writer’s observations about Mr Purutanga’s lack of remorse and lack of concern for his children. Mr Carruthers points to passages in the reports of Ms Turner and Dr Dean which point to remorse and concern.As to Mr Purutanga’s background factors, Mr Carruthers submits:
(a)Mr Purutanga’s report of being sexually abused as a child was of course self-reported and uncorroborated. But that is not surprising given the nature of what was reported. In March 2022, well before pleading guilty, Mr Purutanga contacted ACC about receiving help.
(b)Although there were assessments from two report writers pointing to Mr Purutanga malingering, they did not conclude that he was doing no more than cynically trying to evade liability. Dr Dean diagnosed Mr Purutanga with methamphetamine withdrawal, possibly with symptoms of psychosis. Mr Purutanga had considered suicide in 2016 and on the night of the offending his father said he was making little sense, acting erratically, tearful, and asking for help with his mental health.
Mr Carruthers submits that an appropriate overall discount for the guilty plea and personal factors would be around two years. The MPI should have been around 15 years and six months. It would be manifestly unjust to impose an MPI of 17 years under s 104 if the appropriate MPI is 15 years and six months: Mr Purutanga’s guilty plea and personal circumstances merit more recognition than a 17 year MPI would afford. Mr Carruthers referred to a number of cases, including a recent decision of this Court, where a 17 year MPI had been found to be manifestly unjust, and an MPI of 15 years and six months imposed.[15]
Discussion
[15]Vea v R [2020] NZCA 68. See also R v Aporo HC Palmerston North CRI-2005-054-2872, 20 October 2006; R v Fraser HC Christchurch CRI-2009-061-244, 9 July 2009; R v Garson [2020] NZHC 3259; and R v Peeni [2020] NZHC 1352.
It is important to bear in mind that Mr Purutanga’s sentence is life imprisonment. The MPI is not the sentence. It is the period Mr Purutanga must spend in prison before he can apply to the Parole Board to be released on parole.
We agree that s 104(1)(e) of the Act applies. Mr Purutanga’s murder of his partner was committed with a high level of brutality, cruelty and callousness. Their four-year-old child was in the room and saw their mother killed by their father in this brutal way, and saw their grandmother injured in a futile attempt to restrain Mr Purutanga.
We consider also that s 104(1)(g) applies. The victim was particularly vulnerable. She had been conditioned by years of violence from Mr Purutanga to accept being beaten. Earlier in the day, while the children were at home, Mr Purutanga beat the victim badly, breaking her nose and bruising her face and scalp. The victim was also vulnerable when she was attacked fatally because she was lying on the bed with their four-month-old baby asleep between her legs.
It follows that Parliament’s direction that the Court must impose an MPI of at least 17 years applies. The exception — unless that would be manifestly unjust — is a high threshold. In R v Williams, this Court said:[16]
[67] … a minimum term of 17 years will be manifestly unjust where the Judge decides as a matter of overall impression that the case falls outside the scope of the legislative policy that murders with specified features are sufficiently serious to justify at least that term. That conclusion can be reached only if the circumstances of the offence and the offender are such that the case does not fall within the band of culpability of a qualifying murder. In that sense they will be exceptional but such cases need not be rare. As well, the conclusion may be reached only on the basis of clearly demonstrable factors that withstand objective scrutiny. Judges must guard against allowing discounts based on favourable subjective views of the case. The sentencing discretion of Judges is limited in that respect.
[68] Beyond that, what level of disparity amounts to manifest injustice remains a matter of sound sentencing judgment that is not capable of precise determination. …
[16]R v Williams [2005] 2 NZLR 506 (CA).
In the recent decision of Frost v R, this Court explained (having quoted the above passages from Williams):[17]
[41] More generally, it has been recognised by this Court that the policy behind the legislative provisions for murder mean the discounts for personal mitigating factors have played “a lesser role” in murder sentencing. This is because s 103(2) signals Parliament’s intention that the seriousness of the offending is to be a sentencing court’s focus when setting an MPI for murder.
[17]Frost v R [2023] NZCA 294 (footnotes omitted).
Therefore, an MPI is not adjusted to take account of the personal factors of a defendant as though it were the sentence. Pleas of guilty are taken into account, as the Sentencing Act requires, but there is a “settled pattern”[18] of discounts in the range of one to two years. This Court reaffirmed that pattern in Frost.[19]
[18]At [43].
[19]At [89].
In this case, the Judge allowed a discount of one year for the plea of guilty. He did so because of the 18 months that had elapsed since the murder before the plea was entered, and because Mr Purutanga’s conduct had contributed to delays in obtaining mental health reports.
There is another factor not mentioned by the Judge: the evidence against Mr Purutanga was overwhelming. Credit for a guilty plea is often reduced where the plea simply recognises the inevitable outcome.[20] However in Frost, in a very similar situation where final psychiatric reports were obtained shortly before trial, and pleas of guilty were entered some three months later, this Court allowed a two-year discount despite overwhelming evidence of guilt. We conclude that a strong Crown case does not preclude a discount of up to two years for the entry of a plea of guilty.
[20]See Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
In this case, Mr Purutanga’s conduct contributed to the delay in obtaining some reports. And his conduct prolonged the entering of a guilty plea. We accept this description by Ms Mann for the Crown:[21]
6.3Further, it is relevant to observe, following receipt of the expert opinion from Dr Dean, a pre-trial callover was organised on 7 June 2022 for the purpose of arraignment. The victim's family were present for that hearing. Rather than plead guilty as expected, the defendant dispensed with the services of his second counsel and indicated he wished to proceed to trial. Lang J initially declined counsel leave to withdraw and made arrangements for the matter to be called before the allocated trial Judge when new counsel was assigned. At a subsequent telephone conference before Harland J, the appellant refused to engage with counsel who then also sought leave to withdraw. Ultimately, in circumstances where the defendant appreciated the trial would not be adjourned again, he was arraigned on 16 June 2022.
6.4By the time of the arraignment Crown counsel’s preparation for what was anticipated would be a five day trial, was largely complete. The nature of the evidence, including the appellant's mother's eyewitness account, was such the Crown anticipated its case would be complete within three days. The only evidence anticipated to be led from the victim's family members related to earlier violent offending by the appellant against the victim.
6.5While there is no criticism of counsel for taking the cautious approach in ensuring an expert report was obtained addressing the issue of insanity, here, the appellant's wish to explore the defence is to be seen against Dr Dean’s conclusion he had acted in a “undoubtedly deceitful and uncooperative” manner post-arrest and that behaviour was “unrelated to a mental health condition”.
6.6Against that background it cannot be said the appellant demonstrated particular insight into the causes of his offending or genuine remorse for his actions. Instead, he attempted, over a protracted period, to justify his behaviour and divert responsibility. It is to be observed, at the conclusion of sentencing, and in front of the victim’s family in open court, he shouted at his lawyer to appeal sentence immediately.
[21](Footnotes omitted).
The calculation of credit for a guilty plea is not done according to a mathematical formula. There is a strong element of judicial discretion. Although it would have been open to the Judge to give Mr Purutanga a greater discount than one year, he was not in error to decline to do so.
Mr Purutanga’s personal mitigating circumstances
The weight to be given to a defendant’s personal mitigating circumstances in a s 104 assessment of manifest injustice depends on how those circumstances affect the core issue of culpability, or moral responsibility.
Having considered the reports on Mr Purutanga’s background and mental health, we do not find circumstances which materially decrease his culpability for the offending, or lower his moral responsibility for it. To the contrary, the history of his relationship with the victim, including his behaviour on the day of the murder, demonstrate his high level of culpability and moral responsibility for the murder.
We accept the Crown’s submissions:
6.12Here, the appellant, having voluntarily used methamphetamine in the days preceding this offending, in an irritable and aggressive state, reacted in a retributive way when his partner sought the assistance of police after an assault on her. There is no clear nexus between the appellant’s earlier, somewhat limited mental health history, and his offending, the key drivers for which were his extensive drug use and propensity for violence against his partner.
6.13It is relevant to observe the appellant has had the support of a close and loving family throughout his lifetime. He was not exposed to violence during his own childhood. While voluntarily associating for a period of time with gangs, the appellant enjoyed the ongoing support of his parents who assisted him both materially and also by way of their constant prosocial influence. It is to be observed the appellant has had active assistance from his parents throughout his life to obtain assistance for his methamphetamine use and his propensity for violence towards his partner.
The Judge did not err in deciding not to give a further discount for Mr Purutanga’s personal circumstances.
Is an MPI of 17 years manifestly unjust?
The Judge assessed the starting or notional MPI as 17 years six months. He emphasised the brutality of the murder. On our assessment, taking into account those factors and also the particular vulnerability of the victim, we consider a starting MPI of 18 years was within range.
We have concluded that the one year discount for the defendant’s plea of guilty allowed by the Judge was within the range available. On the Judge’s assessment of the MPI starting point, an MPI of 16 years and six months was within range. On our assessment of the MPI starting point, the MPI would be 17 years. Even if the full two years discount for the plea of guilty was available, then on our analysis the notional MPI would reduce to 16 years. But on the facts of this case, the difference between a 16 years MPI and a 17 years MPI would not make the latter manifestly unjust.
We emphasise that this assessment is not simply a matter of mathematical comparison. We have to apply the high threshold of “manifestly unjust” in the factual context of all of the circumstances of the offending and the offender. A murder committed by a young person, or by a person with a relevant and operative psychosis, are contexts, for example, which can bear on what is manifestly unjust. All sentences have to be tailored to the individual defendant in the unique circumstances of their case. And a sentencing court has always to stand back and decide whether the end sentence, including any MPI, as calculated is a just one.
Here — adopting the phrasing in Williams which we quote at [26] — the circumstances of the offence and the offender are not such that the case falls outside the level of culpability of a qualifying murder under s 104 of the Sentencing Act. Taking into account all the circumstances of the offence and the offender, we conclude that a 17 year MPI is not manifestly unjust.
Decision
The appeal is dismissed.
Solicitors:
Hamilton Legal, Hamilton for Respondent
5
0