R v Betteridge

[2019] NZHC 1480

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2018-019-4429

[2019] NZHC 1480

THE QUEEN

v

KYRA BETTERIDGE

Hearing:	26 June 2019
Appearances:	J Foster for Crown S Tait for Defendant
Judgment:	26 June 2019

SENTENCING NOTES OF JAGOSE J

Solicitors/Counsel:

Almao Douch, Hamilton

S Tait, Barrister, Barrister, Auckland

R v BETTERIDGE [2019] NZHC 1480 [26 June 2019]

[1]                Ms Betteridge, you come before me for sentencing, having pleaded guilty to charges of conspiring to defeat justice,1 and misconduct in respect of human remains.2

[2]                You pleaded guilty shortly after receiving a sentence indication from Davison J on 7 May this year.3 His Honour indicated a sentence of no more than 20 and a half months’ imprisonment was likely, with the possibility of home detention. I am not bound by the Judge’s indication,4 but I must decide your sentence for myself.

The offending

[3]                The charges against you arise out of the aftermath of the killing of Mitchell Paterson early on 12 July 2018. Some co-offenders face similar charges to you, while others face the principal charges of murder, manslaughter and kidnapping.

[4]                After Mr Paterson’s death, in which it is not alleged you were involved, a plan was formulated for you and two others to move his body elsewhere by car and then set them on fire. Three of your co-offenders rolled up Mr Paterson’s body in a tarpaulin, and put it in the back of a vehicle and covered in rubbish and car parts to avoid detection. Someone driving the vehicle carrying Mr Paterson’s body left the address shortly after 6.30 in the morning on 12 July 2018.

[5]                You left shortly afterwards in another car with a co-offender. You filled two containers at a petrol station, to use in setting fire to Mr Paterson’s body and the vehicle he had been in. The three of you then met up and travelled in convoy around the Waikato for the rest of the day, Mr Paterson’s body remaining inside the vehicle.

[6]                During the afternoon, you and one of your co-offenders decided to change how to dispose of the body. The third person with you disagreed, and returned to Hamilton. Another co-offender, Mr Green, was then contacted in the early hours of 13 July 2018 to assist. Mr Green came to meet you both. After some discussion, the three of you agreed to dispose of Mr Paterson’s body at McLaren Falls, arriving there at around

1      Crimes Act 1961, s 116. Maximum term of imprisonment is seven years.

2      Section 150(b). Maximum term of imprisonment is two years.

3      R v Betteridge [2019] NZHC 999.

4      Criminal Procedure Act 2011, s 116(3).

4am. The other two removed Mr Paterson’s tarpaulin-wrapped body from the back of the vehicle and threw it over a bridge railing into the water below. The three of you then discussed how to dispose of the vehicle that had carried Mr Paterson’s body. Mr Green volunteered a nearby rural address where the vehicle could be left. The three of you then left McLaren Falls. Mr Paterson’s body was discovered later that morning by members of the public.

Victim impact statements

[7]                The Crown justifiably treats Mr Paterson’s family as victims of your offending, being disadvantaged by it.5 We have heard statements from Mr Paterson’s father and mother (Craig and Valerie Paterson), and his former partner (Philippa Taitoko) with whom he had a daughter (Jazmin), for my sentencing today. Although the statements, as you have heard, largely speak of the devasting effect Mr Paterson’s death has had on their lives, they are relevant to your sentencing, given you intended to help those responsible for his killing. You contributed to the family’s hurt. Mr Paterson’s father says to treat his son “as a bag of rubbish” was the act of a despicable person.

Personal circumstances

[8]                The pre-sentence report-writer found it difficult to assess your risk of further offending, given your “limited conviction history”. Given the nature of your offending, though, your potential to cause harm is assessed as medium. This could be reduced if your substance abuse and “impervious attitude” was addressed.

[9]                You describe your early life as chaotic. You were in state care by the age of twelve. You have been homeless, and have ongoing drug addiction and gang connection problems. You have four children with a former partner, now being cared for by your mother, and to whom you are not allowed access. You do not have contact with a fifth child, your 13-year-old daughter. You have resisted involvement in rehabilitative programmes, present as indifferent and unmotivated, and show little insight into your offending.

5      Victims’ Rights Act 2002, ss 4 and 17AA(a)(i)(B) and 20(1).

[10]            Ultimately, the report-writer recommends your imprisonment. Concerns are had about your reliability for home detention, pointing to your lack of full disclosure as to the occasional child occupant of your current address.

Approach to sentencing

[11]            Sentencing involves a three-stage process.6 With reference to relevant cases, I first decide the starting point your offending attracts. Then I may adjust that up or down to take into account your personal circumstances. Last, a discount will be given for your guilty plea.

[12]            I do all that with regard for the purposes and principles of sentencing contained in ss 7 and 8 of the Sentencing Act 2002. In summary, I must hold you accountable for your offending, and encourage in you a sense of responsibility for the harm you have caused. Especially in convicting attempts to pervert the course of justice, the sentence should be sufficient to denounce your conduct, and deter others from offending similarly.7

[13]            I must also take into account the gravity and seriousness of your offending, its effect on the victims, a need for consistency with appropriate sentencing levels, and imposition of the “least restrictive sentence” appropriate in the circumstances.

Starting point

[14]            I will adopt a global starting point to encompass the charges of conspiring to defeat the course of justice and misconduct in respect of human remains, as they appropriately attract concurrent sentences here.8 Davison J did the same.

[15]            The focus in sentencing for attempts to pervert or prevent the course of justice “must be on the intention behind the attempt and on its potential effect”.9 Counsel agree premeditation, and the extent of loss, damage or harm resulting from your offending, are the relevant aggravating factors of it.

6      R v Taueki [2005] 3 NZLR 372 (CA), Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

7      Miller v R [2014] NZCA 382 at [11].

8      Sentencing Act 2002, s 84.

9      Miller v R, above n 7, at [11].

[16]            From the beginning, you were involved in how to dispose of Mr Paterson’s body. You were directly involved in the change of plan. It is notable a third person withdrew at that point. Your actions were intended to assist Mr Paterson’s killers, by removing evidence. You could have been successful.

[17]            Your offending had potential to cause “great anguish to next of kin and considerable distress to the whole community”.10 That is clear from Craig Paterson’s statement. You played an active and willing role in the callous disposal of the body of someone you described as a “mate”.

[18]            I take the view Davison J was right to take a two and half year starting point, having regard for comparable case law.11 I do so similarly.

Adjustment for personal factors

[19]I now consider if your personal circumstances justify any change to that.

[20]            There are no aggravating features. Your previous convictions are not material to your present offending. I see no cogent evidence of remorse. The report-writer portrays you as neither understanding nor accepting responsibility for the consequences of your actions. Your unwillingness to engage in rehabilitation endorses that perspective.

[21]            Davison J did not accept there was any “clear power imbalance” between you and the wider group of your co-offenders, for consideration as a mitigating factor. Neither do I. You were an active and willing participant in the conspiracy to dispose of Mr Paterson’s body. Such does not justify any reduction from the starting point.

[22]            You are entitled to credit for the time you have been on electronically monitored bail (“EM bail”).12 Davison J proposed two months credit for your seven

10     R v Raroa [1987] 2 NZLR 486 (CA) at 495.

11     See R v Crook [2016] NZHC 215; R v Raroa, above n 10; R v Leach HC Wellington CRI-2006- 085-4461, 27 October 2006; R v Te Kani [2018] NZHC 3134; and R v Comer [2017] NZHC 3243.

12     Sentencing Act 2002, s 9(2)(h) and (3A).

or eight months EM bail. There being no “rule as to how much discount (if any) should be given”,13 I am not minded to increase that for the subsequent weeks.

[23]That brings me to two years and four months’ imprisonment.

Guilty plea

[24]            Davison J indicated you would be entitled to the full 25 per cent deduction if you accepted his sentence indication. Taking that as your first reasonable opportunity to be informed of all the implications of a guilty plea,14 I agree. The resultant end sentence is 21 months’ imprisonment. I acknowledge this is a half-month longer than your sentence indication, but I consider it appropriately calculated.15

Home detention

[25]            Technically that is a short term of imprisonment and would make you a candidate for home detention.16 I am required to make a “considered and principled choice” between the two forms of sentence, to identify which better qualifies, in your circumstances, as the “least restrictive” sentence.17

[26]            Home detention may sufficiently meet the principles and purposes of sentencing, including deterrence and denunciation. It is a “significant sentence in its own right”.18 It has been granted in cases involving similar offending.19 The doubts expressed about your suitability for home detention relate to your general rejection of rehabilitative measures. That tends to render home detention unsuitable. You are not prepared to avail yourself of its advantages. I acknowledge you have not previously been subject to home detention, or indeed been imprisoned. However, in the circumstances, I see no alternative but a sentence of imprisonment being the least restrictive sentence in your case.

13     Chea v R [2016] NZCA 207 at [110]. A four-month discount was given for 13 months spent on EM bail.

14     Hessell v R, above n 6, at [47] and [75].

15     Davison J applied the EM bail credit to his indicated end sentence, not as a mitigating factor as directed by the statute: Sentencing Act 2002, s 9(2)(h).

16     Sentencing Act 2002, s 15(A)(1)(b).

17     Fairbrother v R [2013] NZCA 340 at [30].

18 At [28].

19     See R v Leach, above n 11; and R v Boskell [2015] NZHC 286.

Sentence

[27]Ms Betteridge, please stand.

[28]            On the charge of conspiring to defeat the course of justice, I sentence you to 21 months’ imprisonment. On the charge of misconduct in respect of human remains, I sentence you to six months’ imprisonment, to be served concurrently, that is to say at the same time.

[29]You may stand down.

—Jagose J