A Gordon and S Bird for the Crown K Burroughs for the Defendant
Judgment:
19 November 2021
SENTENCING NOTES OF MUIR J
Solicitors/Counsel:
Gordon Pilditch, Crown Solicitors, Rotorua K W Burroughs, Barrister, Hamilton
R v CABLE [2021] NZHC 3129 [19 November 2021]
Introduction
[1] Darkie Thomas Cable, you appear for sentence on two charges of injuring with intent to cause grievous bodily harm1 and one charge of murder,2 following your guilty plea of 2 August 2021.
[2] This case triggers s 86E of the Sentencing Act 2002 (“the Act”) because your offending has been subject to a second strike warning under the “Three Strikes” regime, introduced in the Sentencing and Parole Amendment Act 2010.
[3] In terms of s 86E(2), you must on the murder charge be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so.
[4] If this Court does find it manifestly unjust to impose life imprisonment without parole, s 86E(4)(b) requires it to impose a sentence with a minimum non-parole period of at least 10 years in accordance with s 103 of the Act but taking into account also s 104 of the Act, which prescribes a minimum parole period of 17 years for murders of the most serious kind, including those involving a high degree of brutality, cruelty, depravity or callousness.3
[5] In the event s 104 is engaged, the identified minimum non-parole period applies unless such would be “manifestly unjust”.
[6]In this case the Crown says:
(a)you must be sentenced to life imprisonment;
(b)at issue is whether it would be manifestly unjust to impose that sentence without the possibility of parole;
1 Crimes Act 1961, s 189(1). Maximum penalty: 10 years’ imprisonment.
2 Sections 160(2)(a) and 167(b). Maximum penalty: life imprisonment.
3 Sentencing Act 2002, s 104(1)(e).
(c)if it would be manifestly unjust to impose a sentence of life imprisonment without the possibility of parole, the remaining issue is the appropriate minimum period of imprisonment (“MPI”);
(d)an appropriate MPI for the murder alone would be around 12 years. That MPI should be uplifted by two–three years to account for the other charges on which you are being sentenced today, and by six months to a year for your previous violence convictions;
(e)section 104 of the Act is not engaged and an appropriate MPI would, before considering s 86E, therefore be between 14.5 years and 15.5 years; and
(f)you are 37 years old and could serve 40 years in prison if not eligible for parole. The Crown will abide the Court’s decision whether to engage the manifest injustice exception in s 86E(2)(b).
[7] The defence substantially accepts the Crown’s propositions, but says any uplift for your injuring with intent convictions should be in the range of one year’s imprisonment only. An appropriate uplift for your previous convictions…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Cable [2021] NZHC 3129
Case
[2021] NZHC 3129
Decision Date
CaseChat Overview and Summary
Darkie Thomas Cable pleaded guilty to charges of murder and injuring with intent to cause grievous bodily harm. The case came before Muir J in the High Court of New Zealand, Rotorua Registry, for sentencing. The central legal issue was whether a sentence of life imprisonment without parole would be manifestly unjust for the murder charge under section 86E of the Sentencing Act 2002, given that this was Cable’s second strike offence under the “Three Strikes” regime. The Crown argued for a sentence of life imprisonment without parole, while the defence contended for a sentence of life imprisonment with a specified non-parole period.
The court first examined whether section 104 of the Act applied, which would require a minimum non-parole period of 17 years for the most serious murders. The court found that, while the murder involved significant brutality, it did not meet the threshold for section 104. The court then determined an appropriate notional minimum non-parole period (MPI) of 13 years and six months, considering the aggravating factors such as the breach of trust, the victim's vulnerability, the extent of loss, and the fact that the murder occurred in front of the victim's children. Discounts were applied for deprivation and the guilty plea, resulting in a non-parole period of 12 years.
Turning to section 86E, the court concluded that imposing a sentence of life imprisonment without parole would be manifestly unjust. Factors considered included the relative seriousness of the offending, Cable's age, and the potential for rehabilitation. The court found that the disparity between the potential sentence without parole and the otherwise appropriate sentence was significant, and that there was potential for Cable to change. Therefore, the court sentenced Cable to life imprisonment with a non-parole period of 12 years for the murder charge, and concurrent sentences of three years and six months’ imprisonment for each of the injuring with intent charges.