R v Callaghan
[2012] NZHC 596
•30 March 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-004-017056 [2012] NZHC 596
THE QUEEN
v
BRADFORD JAMES JOSEPH CALLAGHAN
Charges: Murder
Attempting to pervert the course of justice
Plea: Guilty
Appearances: S Moore SC and A Longdill for Crown
S Grieve QC and K Cato for Prisoner
Sentenced: 30 March 2012
Murder – life imprisonment
Attempting to pervert the course of justice – six years’ imprisonment
(concurrent) – minimum non-parole period of 13 years eight months.SENTENCING NOTES OF VENNING J
Solicitors: Crown Solicitor, Auckland
Copy to: S Grieve QC, Auckland
K Cato, Auckland
R V CALLAGHAN HC AK CRI-2010-004-017056 [30 March 2012]
[1] Bradford Callaghan, you have pleaded guilty to murder and also to a charge of attempting to pervert the course of justice.
[2] The sentence for murder in New Zealand is life imprisonment. That is the sentence I must impose on you. I mention that now because there is a danger that that may be lost sight of because the focus of this morning’s hearing has been on the minimum term of imprisonment that you must serve as part of that life sentence. The real issue for this morning’s hearing is the minimum term of imprisonment that you must serve as part of that life sentence.
[3] I start first with the facts. You and the deceased, Ms Thomas, had a relatively brief relationship while you were working overseas in England. Ms Thomas became pregnant and had your son. Although your relationship with her had ended while you were still in England, after you returned to New Zealand Ms Thomas came to New Zealand and brought your son with her. You shared custody of him. He was a large part of your life.
[4] On the evening of 28 June 2010 Ms Thomas contacted you. She wanted to talk to you about your son and issues that she considered were arising at his school. The next morning you went to her home. During the course of the discussion with her something happened which led to your striking her a number of times about her head and face. During the assault on her you used a blunt object (according to the pathologist) and you say it was a child’s baseball bat that was left in the flat. Using that you inflicted at least eight blows on her around the head and face. She was left with a seven centimetre laceration on the back right of her head, a four centimetre laceration on the upper right forehead, a four centimetre laceration on the right frontal region of her scalp, a six centimetre laceration within the frontal scalp, a six centimetre laceration above her right ear, and three lacerations on the left parietal region.
[5] During your attack on her Ms Thomas screamed. A neighbour heard her. She says she also heard you attempting to quieten Ms Thomas down. Ultimately Ms Thomas died of the extensive injuries inflicted by you on her. The fatal injury was
the blow to the back right of her head which sent radiating fractures across the base of the skull and caused neurogenic shock to her brain stem.
[6] After you had killed Ms Thomas, rather than seeking help or calling the authorities you set out to cover up your involvement in her death and to defeat or pervert the police inquiry from what had happened. In the course of that you did a
number of things, including:
telling the neighbour who had come over to investigate, that Ms Thomas had vomited blood over you because she was sick and that you had called for
help;
arranging for an associate to purchase a bottle of kerosene. You and he also
purchased rubbish bags, cleaning material and disposable gloves;
you returned to Ms Thomas’ address to clean and conceal evidence of the
crime;
you removed Ms Thomas’ body from the address;
you dismembered Ms Thomas’ body;
you took Ms Thomas’ mobile phone and using it on a number of occasions
between 29 June and 10 July 2010;
you regularly replied to text messages received on that phone sent by her
friends and concerned neighbour to make it appear she was still alive;
you purported to engage in text conversations with Ms Thomas and yourself
between your phone and hers;
you purchased a simcard under an assumed name for use to communicate with your associates about the matter;
you attempted to obtain statements from an associate that he had seen Ms
Thomas around 1 July 2010;
ultimately you buried Ms Thomas’ body in the Waitakere Ranges on or about
6 July 2010;
you took her car from her address and drove it to Hamilton leaving it
abandoned, consistent with the text messages that you had engineered;
you destroyed evidence of Ms Thomas’ blood in the vehicles;
you advised one of your associates what he should tell the police when he was asked about the incident on the boat.
[7] Then two weeks after the murder and, after burying her body, on 12 July
2010 you advised the police that Ms Thomas was missing.
[8] Mr Callaghan, at the age of 33, almost 34, you appear for sentence on the most serious charge of murder. You have no previous convictions of any kind. You are an intelligent and educated man who has had opportunities that a number of people who appear before the Court have not had. The probation report records you had a relatively happy upbringing. Your parents separated when you were nine years old. Your mother assumed your care on a day to day basis but you kept in touch with your father. You excelled at school and obtained a Bachelor of Engineering at university. You worked overseas in that profession in both Australia and the United Kingdom. It was while you were in England that you met Ms Thomas and had the brief relationship with her. As I have noted you returned to New Zealand in 2005 and then in 2008 after Ms Thomas had returned to New Zealand with your son you obtained joint custody with her.
[9] In May 2009 you met and formed a new relationship with your current partner. You and she have had a child.
[10] The probation officer notes in her report you were frank and forthcoming during the course of the interview. You gave the same explanation to the probation officer that your counsel has advanced in his submissions, namely that you had had ongoing difficulties with Ms Thomas over your son’s upbringing. Your son was a major focus in your life. You had shifted to ensure you were in his school zone. Ms Thomas wanted to take him out of that school, where you considered he was settled and doing well. You considered issues about the school had been resolved. You had involved yourself and spoken to the teacher about them. Similar issues had been raised by Ms Thomas in the past. It seems from the reports before the Court that you were just not equipped to deal with the emotional demands and issues that Ms Thomas had raised. On the day of her murder you and she argued. Your instructions to counsel are that in the course of that argument she said words to the effect that “he was not your son, he was another man’s”, that she was going to leave with him and you were not going to see him again. You described feelings of utter rage and being out of control. Something came over you and you started striking her.
[11] You seek to explain your later offending by saying you panicked after seeing the horrifying scene and realising the situation you were in.
[12] You have expressed deep remorse to the probation officer for your offending, your actions towards the deceased and the effect your actions had on the lives of others.
[13] The probation officer records that you have a high motivation to address your rehabilitation needs and says your remorse is, in her opinion, genuine. She considers you understand the position that you are now in.
[14] Mr Callaghan in sentencing you I am required to address the purposes and principles of the Sentencing Act. In this case in light of the offending that you face sentence for the matters of particular relevance are:
to promote in you a sense of responsibility for and acknowledgement of that
harm;
to provide for the interests of the victims of your offending;
to denounce your conduct; and
to deter others from acting in a similar way.
[15] As you appreciate there are a number of victims and people who suffer as a result or consequence of your offending. You have killed another human being. Your actions have had a devastating effect on her family and your son. You have heard directly from the deceased’s mother, father and sister of the effect on them. You are aware of the other victim impact reports. I have read the very thoughtful and helpful report from the child psychologist who has seen your son. It recognises he will need considerable assistance and support as he grows up to enable him to cope with the loss of his mother and the fact that his father is in prison for murdering her.
[16] In addition to the devastating effect your offending has had on Ms Thomas’ family and your son, it has also affected people close to you, your partner and your other child, your parents, and your mother in particular. You have a full appreciation of the consequences of your actions now and the effect that your actions have had on so many people. As I have said you are clearly an intelligent man. That is reinforced by what you have achieved to date and from the letters that you have written to the deceased’s mother and to the Court.
[17] I intend to determine the appropriate minimum period of imprisonment by first identifying the minimum period appropriate for the murder itself, and then uplifting that by a further period to recognise the other offending you engaged in.
[18] The Crown accepts that s 104 of the Sentencing Act is not triggered in these circumstances. I agree. Having regard to the authorities the murder itself cannot be categorised as involving a high level of brutality, cruelty or callousness. As has been observed by this Court in the past, all murders of their nature involve a degree of brutality and callousness. The high level required to engage s 104 is not present. Nevertheless, the Crown submit that the starting point for the minimum term of imprisonment for the murder, including the callous treatment of the deceased’s body, should be between 12 and a half and 13 and a half years’ imprisonment. The Crown then submits there should be an uplift of about two and a half years for the offending in relation to the charge of attempting to pervert the course of justice so that the appropriate starting point before taking account of your positive mitigating factors is a minimum term of between 15 and 16 years.
[19] The Crown then accepts a discount of approximately 15 percent would be appropriate leading to an end minimum non-parole period of 14 to 15.
[20] Your counsel Mr Grieve has submitted that there are no circumstances warranting a significant uplift from the standard 10 year minimum but if there is to be an uplift it should be no longer than one year in relation to the murder. He submits that an uplift in the range of one to two years for your subsequent offending would be sufficient leading to a starting point of 12 to 13 years for consideration of your personal mitigating factors. He argues for a reduction of 20 percent to take account of your guilty plea. He argues for an end sentence of between 11½ and 12 years as the minimum term.
[21] The Crown’s argument for a significant increase over and above the 10 year minimum period for the murder relies in part on your actions in relation to Ms Thomas’ body after the murder. It describes those actions as callous and refers to the case of R v Brown1 where the Court imposed a longer minimum term of imprisonment on the murder charge because of the way the prisoner had treated the body and disposed of it after the murder. In Brown however, the prisoner did not
face any further charge as you do. It was necessary to uplift the minimum term to
take account of those actions.
1 R v Brown HC Wellington CRI 2010-032-1028, 9 May 2011.
[22] In addition to the case of R v Brown I have had regard to the other cases referred to by counsel: R v Howse;2 R v Marsh;3 R v Rajimani;4 R v BIEM;5
R v Tiumala;6 R v Rukuata;7 R v Ryan;8 R v Rogers;9 R v Seau;10 R v Ngeru;11
R v Pirini;12 R v Mulligan;13 R v Hieatt;14 and R v Tait.15
[23] As you face the separate charge relating to your actions after the murder, which include your actions towards the deceased’s body, I consider the Court should first fix the appropriate minimum non-parole period for the murder without taking account of those subsequent actions and then take them into account in relation to the second charge and that is how I propose to deal with the matter.
[24] The aggravating features of the murder itself are the fact the deceased was killed in her own home, that you used a weapon, which I accept you did not bring or take with you, and that you struck her a number of times about the head and face. Further it appears she was not killed at the outset of your attack, but you continued to hit her. I accept the murder was entirely unpremeditated and I take into account your explanation for acting in the way you did. Of course, no matter what the deceased may have said to you that day, and no matter what difficulties you and she had had in the past, her actions or words that day provided no excuse for the way you acted. Your fatal assault on her was totally unjustified. But I accept that something must have happened or have been said to have triggered you and to have made you act in the way you did which again I accept was totally out of character. Taking all of that into account I consider a minimum non-parole period of 11 years appropriate for the
murder.
2 R v Howse [2003] NZLR 767.
3 R v Marsh HC Christchurch CRI 2005-409-1635 13 December 2005.
4 R v Rajamani HC Auckland CRI 2005-004-1002 28 March 2006.
5 R v BIEM HC Christchurch CRI-2006-009-000065, 7 September 2006.
6 R v Tiumala HC Wellington CRI-2005-091-000581, 9 November 2006.
7 R v Rukuata HC Auckland CRI-2005-092-013891, 29 May 2007.
8 R v Ryan HC Hamilton CRI 2005-019-9389, 26 July 2007.
9 R v Rogers HC Auckland CRI-2006-092-4995, 8 April 2008.
10 R v Seau HC Auckland CRI 2006-092-18372, 17 April 2008.
11 R v Ngeru HC, Wellington, CRI 2008-085-5996, 11 December 2009.
12 R v Pirini HC Whangarei CRI-2010-027-000448, 22 April 2010.
13 R v Mulligan HC Wanganui CRI 2010-083-1242 1 July 2011.
14 R v Hieatt [2011] NZCA 637.
15 R v Tait HC Tauranga CRI-2010-070-005571, 16 September 2011.
[25] As I have said, I consider your criminality in relation to the steps you took following the murder is properly reflected in the additional charge. While Mr Grieve has emphasised that ultimately you told the police where you had buried the deceased’s body, for the period of two weeks before reporting her missing you conducted a deliberate and sustained campaign to cover up your actions. I have described them in summary already. I am aware, however, of the detail referred to by Crown counsel Mr Moore. You personally took a number of steps to avoid detection. You also involved other people to assist you in that regard. While initially you may have acted impulsively, you then showed a significant degree of planning. After you had disposed of the body and reported Ms Thomas as missing you carried on as normally as you could and kept the truth from the deceased’s family, the police and even your own loved ones.
[26] Added to that is your treatment and the ultimate disposal of Ms Thomas’ body in the course of attempting to avoid justice. In my judgment taken overall your actions make this case near the most serious case of attempting to pervert the course of justice that there could be. The maximum sentence for attempting to pervert the course of justice is seven years’ imprisonment. A sentence of six years’ imprisonment would be appropriate on that charge alone. As it is in such a serious category I am satisfied the minimum one-third that would normally have applied to such offending would be insufficient to hold you accountable for what you did after the murder; to denounce your conduct in attempting to cover up the most serious offence of murder and the way you treated the deceased’s body. It would also be inadequate to deter others from committing the same or similar offending or acting in that way. For those reasons I consider the appropriate minimum non-parole period for your offending after the murder to be four years. The start point therefore before taking account of your personal factors is a minimum term of imprisonment of 15 years.
[27] I then consider your personal circumstances. There are no personal aggravating factors. There are a number of positive features which the Court can take into account. At the age of 33 you have no convictions. You have been a worthwhile member of the community and have contributed to it through your professional work. You are entitled to a credit for that. You are also entitled to a
credit for the substantial remorse that you have shown which, I accept is genuine. Your remorse is not, as is often the case, a matter of someone in your situation feeling sorry for the position that they are in. I accept from the reports I have before me and from the other information, including your letter, that you hold a genuine sorrow and regret for your actions and the devastating consequences that they have had on other people which arise and follow from your understanding of your actions. I acknowledge that you have dealt sensitively and exactly as the psychologist has suggested in dealing with your son about these issues. For your personal mitigating factors you are entitled to a reduction of six months.
[28] I then take into account your guilty plea. From an early stage after your arrest in September 2010 I accept you indicated your acceptance of responsibility for the killing itself. You pleaded guilty in November 2011 following an indication that the minimum period of 17 years would not apply. I note however that the Crown case against you was a strong one. Taking all factors into account I take a discount of between 15 and 20 percent but as discussed with your counsel, closer to 20 percent as being appropriate for the guilty plea. The guilty plea, particularly in relation to charge of murder, is significant. It has spared your victim’s family the further trauma of a trial. It is also a tangible recognition of your acceptance of the consequences of your actions and hopefully, in some way in the future, may assist your son to cope with what you have done.
[29] Mr Callaghan please stand.
[30] Mr Callaghan in his written submissions Mr Grieve said this is a tragic case. The words tragic and tragedy can be overused. But I agree with Mr Grieve that this case can properly be described as a tragic one. As a result of your actions a young woman has been killed. As you now know this has had a devastating effect on her family and your son. That effect on them will be ongoing. You are an intelligent and talented young man. You had the prospect of a fulfilling future ahead of you, a challenging and satisfying professional career, and a relationship with a woman you loved and with whom you had another child. That all of that has been lost as a result of your actions is properly described as tragic. It is something you have to live with and cope with.
[31] Mr Callaghan, on the charge of murder you are sentenced to life imprisonment. On the charge of attempting to pervert the course of justice you are sentenced to six years’ imprisonment to be served concurrently. You are to serve a
minimum non-parole period of 13 years eight months. Stand down.
Venning J
27