R v Baker

[2007] NZCA 277

IN THE COURT OF APPEAL OF NEW ZEALAND

CA36/07
[2007] NZCA 277

THE QUEEN

v

GEORGE CHARLIE BAKER

Hearing:26 June 2007

Court:William Young  P, Randerson and Panckhurst JJ

Counsel:Appellant in person

S J E Moore and B H Dickey for Crown

Judgment:5 July 2007 at 2 pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS

(Given by William Young P)

Introduction

[1]       On 24 August 2006 the appellant appeared in the North Shore District Court. He was in custody on charges of aggravated robbery, wounding with intent and threatening to kill.  The first two charges (aggravated robbery and wounding with intent) arose out of an incident which had occurred in April that year.  The threatening to kill charges were related to letters the appellant sent in June 2006 to the victim of the earlier offending and another person.  After his court appearance on 24 August, the appellant was transferred back to the Auckland Central Remand Prison in a prison van with a number of other prisoners including Liam Ashley.  In the course of the trip the appellant murdered Liam. 

[2]       He pleaded guilty to the resulting charge of murder and also to the charges associated with the April and June 2006 offending.  On 15 December 2006 Harrison J sentenced him to life imprisonment with a minimum period of imprisonment of 18 years.  He imposed an effective concurrent sentence of four years’ imprisonment on the other charges.

[3]       The appellant now appeals against sentence. We note that his notice of appeal initially extended to his conviction as well but the arguments advanced by him only addressed his sentence.  The sole question which arises on the appeal is whether the minimum period of imprisonment is too long.  But before we address that question, it is necessary to discuss briefly:

(a)The factual background;

(b)Sections 103 and 104 of the Sentencing Act 2002; and

(c)The Judge’s sentencing remarks.

Factual background

[4]       The appellant and Liam went to court together on 24 August in the same van and there was some discussion between them on that trip.  As a result of that discussion, and some events which occurred at court, the appellant formed the erroneous belief that Liam was to give evidence against him in relation to the April 2006 offending.  The appellant was later to say to a police officer that while he was at court on 24 August 2006 he decided to kill Liam.

[5]       On the way back to the remand prison, the appellant, Liam and a third man were in the same compartment.  In the course of the journey, the appellant suggested that he and Liam should attempt to escape from the van.  The two of them took turns trying to kick open the emergency escape hatch located in the roof of the van.  When these attempts were unsuccessful, the appellant proposed that Liam should pretend to have an epileptic fit or seizure to provide an excuse to require the guards to stop the van and thus an opportunity to escape.  Liam declined to participate and this seems to have precipitated the appellant’s attack on him.

[6]       The appellant struck Liam in the face and then wrapped his right arm around his neck and applied pressure.  In the course of this he looked at the third prisoner in the van and asked, “Shall I kill him?”   The appellant required the third prisoner to move to the other side of the compartment to allow more space for his attack on Liam.  In the course of this, he laid Liam on the bench seat to gain greater purchase.  He then pushed his thumbs into both sides of Liam’s windpipe in an attempt to strangle him.  Liam continued to struggle, kicking his legs against the floor and wall of the compartment.  The appellant responded by wrapping his legs around Liam’s legs to keep him still and continued to strangle him.  When the appellant noticed blood coming from Liam’s eyes and nose and his tongue protruding from his mouth, he placed both his hands on the side of Liam’s head and applied weight in an effort to break his neck.  He then allowed Liam to fall to the floor and stomped on him six or seven times.

[7]       When the van arrived at the remand centre, Liam was unconscious, not breathing and unresponsive.  He was taken to hospital and placed on life support but died of his injuries.

[8]       The appellant is now 26.  He has been appearing before the courts regularly since 1995 and has amassed a huge list of convictions.  The April 2006 offending was itself extremely serious as it involved an assault with a knife.  The June 2006 offending (involving the two letters in which threats to kill were made) was also serious because the threats were associated with co-operation by the victim of the April 2006 offending with the criminal justice system and the appellant’s perception that the recipient of the second letter was also assisting the police.  So there is a connection between that offending and his murder of Liam.

[9]       The appellant does not suffer from any mental illness but has an anti-social and borderline personality disorder.  He is also prone to alcohol and substance abuse. The appellant is a large and fit man.  Liam, on the other hand, was slightly built.  He was 17 years old, 177 cm in height and 63 kilograms in weight.  Both were in handcuffs while in the prison van.

Sections 103 and 104 of the Sentencing Act 2002

[10]     Sections 103 and 104 of the Sentencing Act 2002 provide:

103     Imposition of minimum period of imprisonment if life imprisonment imposed for murder

(1)       If a court sentences an offender convicted of murder to imprisonment for life it must order that the offender serve a minimum period of imprisonment under that sentence.

(2)       The minimum term of imprisonment ordered may not be less than 10 years, and must be the minimum term of imprisonment that the court considers necessary to satisfy all or any of the following purposes:

(a)       holding the offender accountable for the harm done to the victim and the community by the offending:

(b)       denouncing the conduct in which the offender was involved:

(c)       deterring the offender or other persons from committing the same or a similar offence:

(d)       protecting the community from the offender.

104     Imposition of minimum period of imprisonment of 17 years or more

The court must make an order under section 103 imposing a minimum period of imprisonment of at least 17 years in the following circumstances, unless it is satisfied that it would be manifestly unjust to do so:

(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

(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

(e)       if the murder was committed with a high level of brutality, cruelty, depravity, or callousness; or

(f)       if the deceased was a member of the police 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 remarks of Harrison J

[11]     The Judge reviewed the facts in relation to both sets of charges. 

[12]     He imposed two years’ imprisonment on each of the charges associated with the April and June 2006 offending with the sentence on the charge of aggravated robbery to be cumulative on the sentences of the other charges.  In other words, he imposed a total sentence of four years’ imprisonment on those charges.

[13]     In his summary of the facts relating to the murder charge, Harrison J noted at [10]:

… as a result of something that Liam said, you wrongly concluded that he was likely to be giving evidence against you on the trial of the aggravated robbery charge.  You later told the police officer that then you decided to kill him.  Through Mr Bouchier today, you retract that statement. Nonetheless I take it into account.  You say now that you were acting instinctively; that you decided to kill Liam as a result of an event that occurred in the van on the way to [the Remand Prison].

[14]     The Judge had no difficulty in concluding that s 104 was engaged.  He explained his conclusion in this way:

[19]     In this case I am satisfied that at least three of the statutory features are present.  First, as Mr Moore emphasised, there is the brutality, the depravity and cruelty of your crime.  The public know that all murders are brutal; all murders are cruel.  The reason is obvious.  They involve the intentional taking of another person’s life.  But society also recognises that there are degrees of brutality.  Yours is at the higher end.  I refer to the length and extreme ferocity of the attack.  It shows your absolute determination to take Liam’s life.

[20]     Second, Mr Baker, you committed this crime in an attempt to avoid prosecution on another charge.  That was your motivation on 24 August.  You believed you were justified in killing Liam because you thought, quite wrongly, he was going to give adverse evidence against you at trial on the other charges.  As Mr Moore has said, this view demonstrates a contempt for the criminal justice system.  So, too, as I have said before, do the two letters that you wrote in June 2006.

[21]     Third, and perhaps most importantly, there is Liam’s vulnerability.  Mr Moore has outlined in graphic detail the differences between the two of you.  I must recount them.  You are 25 years of age.  You are a big man.  You are sophisticated in criminality.  I have no doubt that you are strong.  Liam was, at 17 years of age, a mere boy.  Mr Moore has recited his height – 177cm – and his weight – 63kg.  Not only were you much bigger and stronger, but he had no means of escape.  He was confined; he was handcuffed.  He was no match for you.  You were able to use that in a cowardly way to your advantage.

[22]     For these brief reasons, I am satisfied that the minimum term of 17 years must be imposed.  The question is whether or not it should be uplifted or increased.  Mr Moore says that the starting point should go up to between 20 and 22 years.  He has referred me to a number of decisions of our Court of Appeal and High Court.  I can say that I am familiar with all.  But in each case the facts are different, and they dictate the eventual result.  Also, among the other factors I am entitled to take into account, there is your bad character, Mr Baker.  You have over 70 convictions.  Additionally there are, of course, the crimes of aggravated robbery, wounding with intent and threatening to kill on which you have been sentenced.

[15]     He referred to the appellant’s circumstances, his diagnosis as suffering from an anti-social and borderline personality disorder and alcohol and substance abuse.  He then went on to say:

[26]     Taking all these factors into account, Mr Baker, the one that stands out in your favour is your plea of guilty.  The Crown, through Mr Moore, submits that it is not an expression of remorse.  I am prepared to give you the benefit of the doubt on that point.  I do construe it as being genuine for these purposes.  It is important that you have entered it.  It enables Liam’s family, and yours to a lesser extent, to have some closure – of course not total closure, but some closure – on the process.  It was a responsible step on your part to enter it within four months of your commission of the crime.

[27]     Nevertheless, I accept Mr Moore’s submission.  The appropriate starting point should be adjusted up for all the factors that I have indicated to 20 years.  It will be reduced by two years by way of discount on entering your plea of guilty.  The ultimate minimum term of imprisonment which I impose is one of 18 years.

Was the minimum period of imprisonment too long?

The approach to the appeal

[16]     The appellant appeared in person and his submissions were rather limited.  We think it most convenient to discuss the submissions he made and some concerns we had about the sentence under the following headings:

(a)The factual basis upon which the appellant was sentenced;

(b)The starting point of twenty years; and

(c)The two year discount for mitigating factors.

The factual basis upon which the appellant was sentenced

[17]     One aspect of the case which initially troubled us was the passage in the Judge’s sentencing remarks which are set out in [13] above.  This is because it rather looked as though there may have been a dispute on an issue of fact which was not resolved in accordance with the procedure provided for in s 24 of the Sentencing Act.  This is a reasonably subtle point and requires some explanation.

[18]     Possibly in issue were two questions of fact:

(a)       When the appellant decided to kill Liam; and

(b)His motive for doing so.

[19]     The Crown case was that the appellant decided to kill Liam prior to commencing the journey back to the remand prison.  The Crown maintained that his motive for doing so was because he regarded Liam as a “nark”.  The passage we have cited in the sentencing remarks of Harrison J might suggest that the stance taken by the appellant at sentencing was that he had not formed the intention of killing Liam as early as the Crown contended and, at least by implication, that his reasons for killing Liam were instinctive arising out of what happened in the van (presumably the refusal of Liam to co-operate fully in his escape ambitions) rather than his perception that Liam was a “nark”.  

[20]     A problem with this aspect of the case is that [10] of the sentencing remarks is a little ambiguous as to whether the retraction referred to by the Judge was confined to the timing issue or was intended to extend to the motive as well.  Furthermore, it is perhaps open to question what the Judge meant when he said that he would nonetheless take the statement into account.  The most natural reading of what the Judge said suggests that he intended to hold the appellant to his admission to the police officer despite his change of stance at the sentencing hearing.  But it seems unlikely that the Judge would have done this without a s 24 hearing if he considered the issue to be material.  The Judge plainly regarded the appellant’s motive as being an aggravating feature: see [20] of the sentencing remarks set out in [14] above.  But the timing issue (ie as to when the appellant decided to kill Liam) was not otherwise mentioned in the Judge’s sentencing remarks. 

[21]     In the course of the hearing before us, the appellant acknowledged that the reason he killed Liam was because he believed that he was a “nark” although he recognised now that this belief was wrong.  On that basis, we propose to address the appeal on the basis that the appellant killed Liam because he regarded him, wrongly as it turned out, as a “nark”.  We are not in a position to reach any conclusion as to when that intention to kill was formed but, on the view that we take of the case as a whole, that is of no particular significance.

The starting point of twenty years

[22]     There can be no doubt that s 104 was well and truly engaged and this was precisely for the reasons given by the Judge.

[23]     A particularly troubling feature of this case is that the appellant’s decision to kill Liam arose out of his antipathy to those who co-operate with the police; an antipathy which is also apparent from the conduct which gave rise to the threatening to kill charges.  This attitude and associated actions (and particularly the murder of Liam) require emphatic denunciation.  The actions of the appellant associated with the murder were breathtaking in their brutality and callousness.  The vulnerability of Liam to the attack which the appellant launched on him is stark.  Each distinct feature which brought the offending within s 104 would itself have warranted a starting point minimum period of imprisonment of 17 years.  The fact that there were three distinct respects in which s 104 was engaged indicates that a higher starting point was appropriate.

[24]     In his submissions (and particularly his written submissions) the appellant maintained that the sentence was out of line with those imposed for equivalent crimes.  In assessing this contention we have had regard to the guidance provided by the leading decisions, particularly the decisions of this Court in R v Williams [2005] 2 NZLR 506, R v Slade [2005] 2 NZLR 526, R v Green and Morice CA461/04 and CA462/04 2 June 2005, R v Paul CA496/05 1 August 2006, R v Khan CA470/04 14 June 2005 and R v McSweeney [2007] NZCA 147. Against that background, we see no reason to differ from the Judge’s assessment of the appropriate starting point.

[25]     The appellant also sought to draw a distinction between murders committed on the inside (ie in prison) and those committed by those in the community.  We do not accept that there is such a distinction. 

The two year discount for mitigating factors

[26]     The appellant’s guilty plea was at an early stage in the proceedings, and in particular was prior to the preliminary hearing.  That, of course, is a significant factor, as the Judge recognised.  A court carrying out a sentencing exercise which is not constrained by s 104 would normally allow against a nominated starting point a discount of between one-quarter and one-third for a correspondingly early plea of guilty.  Against that background, the discount of two years allowed by Harrison J (representing 10% of the nominated starting point) might appear insufficient. 

[27]     Allowance must, however, be made for the constraining effect of s 104.  As this Court recognised in R v Williams, the discount for a guilty plea in a s 104 case will often be less than that considered appropriate “in an ordinary case where a statute establishes no presumption that the sentence will be at a particular level”: see [73].  Further, as this Court noted in R v McSweeney at [10] the current High Court sentencing practice has generally been to confine allowances for pleas of guilty in s 104 cases to one or two years.

[28]     Against that background, we are not inclined to differ from the Judge as to the appropriate discount. 

[29]     The appellant maintained that there were other relevant mitigating factors which the Judge had not allowed for.  We see no such mitigating factors.

Result

[30]     The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington