R v Ballantyne

[2016] NZHC 1681

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2015-019-1150 [2016] NZHC 1681

THE QUEEN

v

ANTHONY BALLANTYNE

Charge:

Plea:

Murder

Not Guilty

Counsel:

R G Douch for Crown
T Sutcliffe for Prisoner

Sentenced:

22 July 2016

SENTENCING NOTES OF BREWER J

Solicitors/Counsel:

Almao Douch (Hamilton) for Crown

Thomas Sutcliffe (Hamilton) for Prisoner

R v BALLANTYNE [2016] NZHC 1681 [22 July 2016]

Introduction

[1]      Mr Ballantyne, the jury found you guilty of the murder of Mr Kapluggin. You continue to deny guilt for that murder.   I have to say to you that having sat through the trial, I have no doubt at all that the jury’s decision was the correct one.

[2]      I watched you give evidence with keen attention and I wonder whether you are one of those people who can construct his own reality and then acquire a species of belief in it.  I also wonder where you would test on a psychopathy analysis, and I think that is something that the Parole Board might wish to inquire into in due course.

Facts

[3]      You are 63 years old.  Mr Kapluggin was 76 years old when you killed him.

[4]      I do not need to go into the facts in any great detail.   To some extent, the whole situation is inexplicable.

[5]      You and he were friends.   He had just arrived from Thailand and by prior arrangement came to your home to stay for a night or two. You had gone out of your way to make a nice meal.  You cooked it.  The two of you consumed it on the terrace outside your home.  You drank wine.  You drank whisky.  There was music playing. Two old friends having a nice time. And then something happened.  We do not know exactly what, since you will not tell us.

[6]      There is a comment in the evidence that Mr Kapluggin could be very acerbic when  he  had  been  drinking,  and  we  know  that  one  of  the  prime  topics  of conversation that night was your invention of a perpetual motion machine and your high hopes for the monetary benefits that would come to you from it.   In your evidence, you said you talked about the pleasure that you were going to have in shouting friends to a world trip.  I speculate that Mr Kapluggin, in an acerbic way, called your invention into question and that you became enraged.

[7]      That is speculation but it is the only explanation I can think of for what happened, and that is that outside on the terrace, in a fit of sudden rage, you struck Mr Kapluggin in his face breaking his glasses.   The two of you went inside the house.  You grabbed a knife and you attacked Mr Kapluggin fiercely.  He had stab wounds to his chest, neck and back, cuts to his hands, face and body.  Seven wounds in total.  He fell to the floor bleeding profusely and he died.  If there was any doubt at all as to your intention to kill, it is put to rest by the fact that you grabbed a cleaver and struck him fiercely in the head.  He was already dead by that stage but had he been alive, he would not have survived that blow with the cleaver.

[8]      Later, you rang 111 and put on a display to try to distance yourself from what had happened and you went to trial blaming others.  There was simply no way that blame could attach to anybody other than yourself.

Personal circumstances

[9]      You have a minor criminal record.  The only convictions for violence which you have are of assaults that occurred in 2008.  Eventually, you were fined for those assaults.   So, I treat you as a person who has got to the age you have with no criminal offences which should influence me in sentencing you today.

Discussion

[10]     The only sentence for murder is a sentence of life imprisonment.  A sentence of life imprisonment is exactly what it says.  It means that you will spend the rest of your life in prison unless you can, at some future stage, persuade the Parole Board that it is safe and appropriate for you to be released.  Even if you do persuade the Parole Board that it is safe and appropriate for you to be released, you are still subject to the life sentence.  That means that if you ever are released and you give cause  for  concern  in  the  future,  you  will  simply be  brought  back  to  prison  to continue your life sentence.

[11]     Whenever somebody is  being sentenced  for the crime of murder,  victim impact statements are provided to the Court.  Those statements, often in harrowing detail, tell the Judge about the loss and gaping holes left in the lives of the family

and friends who survive.  In this case, we have heard from one of Mr Kapluggin’s daughters and from his second wife.   But there are other statements I have from other relatives, including his brother who gave evidence at the trial, and his wife who lives  in  Thailand.    The  victim  impact  statement  from  Mr Kapluggin’s  wife  in Thailand is particularly harrowing.   She is devastated and has lost emotional and financial support and is in a very dark place.

[12]     But sentencing for murder is not about trying to make up for the loss which has occurred.  No sentencing process can ever make up for the loss of a life.  And neither is it about revenge.  The Court has to sentence in accordance with the law and, as I said, the only sentence that I can impose is the maximum which the law allows, and that is life imprisonment.

[13]     I must also set a minimum period of imprisonment and that must be set at the level I consider reasonably necessary to satisfy the purposes of sentencing, which include holding you accountable for the harm that you have done.

[14]     In the written submissions of the lawyers, I am referred to a lot of cases where minimum periods of imprisonment of 10, 11 or 12 years have been imposed.1

I have to look at your case, though, and, bearing in mind your age, the fact that this killing was in a fit of rage, an unaccountable killing of one friend by another, I am going to impose a minimum period of imprisonment of 10 years.

Sentence

[15]     Mr Ballantyne, I sentence you to life imprisonment and I impose a minimum period of imprisonment of 10 years.

[16]     You may stand down.

Brewer J

1      R v Millar HC Auckland CRI-2010-090-5044, 21 June 2011; R v Middleton [2012] NZHC 3261;

R v Ray [2014] NZHC 599; R v Rapana [2015] NZHC 3331; R v Boulter [2013] NZHC 2793.