R v Candy
[2023] NZHC 414
•6 March 2023
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2022-043-914
[2023] NZHC 414
THE KING v
WILLIAM MARK CANDY ETHAN WEBSTER
Hearing: 6 March 2023 Counsel:
C E Clarke for Crown P M Keegan for Candy N Bourke for Webster
Sentencing:
6 March 2023
SENTENCING NOTES OF CHURCHMAN J
Introduction
[1] William Candy and Ethan Webster appear for sentencing having pleaded guilty to charges of murdering Mr Jacob Ramsay.1 Mr Candy has also pleaded guilty to a charge of kidnapping Mr Ramsay,2 and today pleaded guilty to charge of wounding with intent to cause grievous bodily harm.
[2] An offender who has been convicted of murder must be sentenced to life imprisonment unless it would be manifestly unjust to do so.3 Counsel for Mr Candy
1 Crimes Act 1961, ss 167(b) and 172 – maximum penalty life imprisonment.
2 Section 209 – a maximum penalty 14 years’ imprisonment.
3 Sentencing Act 2002, s 102.
R v CANDY, R v WEBSTER (SENTENCING) [2023] NZHC 414 [6 March 2023]
accepts that this is not the case here. Counsel for Mr Webster, however, contends that it would be manifestly unjust to sentence Mr Webster to life imprisonment.
[3] Before I turn to the appropriate sentence for each defendant, I will set out the factual basis of the offending.
Factual basis of the offending
[4] The victim and the two defendants were farm workers who had a common workplace located in Oaonui, South Taranaki.
[5] The defendants, Mr Candy who was then aged 39, and Mr Webster then aged 18, worked as dairy workers at an address in Kina Road. Mr Candy had been employed in that role for four years and Mr Webster for three years. Both Mr Candy and Mr Webster resided at the farm in separate houses provided by their employer.
[6] The victim, Mr Ramsay was aged 33 years. He was also employed as a dairy milker at the farm. He had been in this role for approximately one month and resided at a separate property a short distance from the defendants.
[7] The Kina Road address is a large dairy farm. The main thoroughfare to access the milking sheds is a tanker track which ran past Mr Webster’s house. It is a hard gravel road. Approximately 900 metres down the tanker track, in one of the paddocks, is a rubbish pit that is used to dispose of farm waste.
Circumstances of the offending
[8] On Friday 26 July 2022, the victim was in Oakura. He had texted another farm worker that he worked with and asked him to come and pick him up. Mr Candy wanted to confront the victim about money he believed the victim owed him. He learned about the text message and instructed the associate farm worker to continue messaging the victim so Mr Candy could locate him.
[9] Mr Candy’s partner drove him to Oakura. He went with the express intention of locating the victim. Mr Candy located the victim at the Oakura cemetery as he waited for the farm worker he had previously texted.
[10] Mr Candy confronted the victim and subsequently assaulted him, punching him numerous times. The victim was knocked to the ground and lost his cap, glasses and shirt. The assault was so ferocious that a member of the public overheard it and told Mr Candy he was going to call the Police.
[11] Mr Candy manhandled the victim into his vehicle and he put the child lock on the passenger door to prevent the victim from leaving.
[12] Mr Candy’s partner drove Mr Candy and the victim from that area towards the Oaonui farm. Mr Candy continued to assault the victim, punching him about the head and torso. Mr Candy’s partner drove the victim to the tanker track on Kina Road, approximately 30 minutes’ drive away, where they met Mr Webster.
[13] Mr Webster confronted the victim, demanding money he was allegedly owed. The victim was lying on the ground semi-conscious and was only able to grunt in response to Mr Webster’s questions. Mr Webster struck the victim, punching him to the head and body with such force that it was overheard by a neighbour around 60 metres away.
[14] Using a chain, Mr Candy looped one end around the victim’s right ankle and the other end to the towbar of his vehicle. He told the victim, “You’re going on a trip down to the hole”. Mr Candy then sat in the driver’s seat with Mr Webster in the front passenger seat. Mr Candy told Mr Webster at one point, “You don’t want to be here for this, this is serious shit, he might be dead by the time we get to the end of the track.”
[15] Mr Webster remained in the vehicle as Mr Candy drove down the tanker track, dragging the victim behind the vehicle by his ankle. They dragged him for about 900 metres along the tanker track to the entrance of the rubbish pit. They unchained the unconscious victim and carried him to the rubbish pit, discarding him on the edge.
[16] The defendants returned to Mr Webster’s house, where they were confronted by the farm owner outside on the tanker track. The defendants acknowledged there had been a confrontation and said the victim was lying half-dead by the rubbish pit. The victim was located by the farmer’s wife when she went to discard some rubbish two days later, on the morning of Sunday 31 July 2022.
[17] The victim died as a result of being assaulted, dragged behind the vehicle and dumped at the dump location. He sustained very serious injuries from being dragged along the tanker track. The skin on his head had been worn down to his skull, giving the appearance of him having being “scalped”. The seat of his jeans was completely worn away, leaving abrasions to the buttocks. No shirt appears to have been worn by the victim at the time he was towed along the gravel road and there were deep abrasions to his back. The victim’s left heel, which had not been tied to the vehicle, sustained deep abrasions, exposing the muscular tissue.
Victim impact statements
[18]I turn now to the impact on the victim.
[19] The Court has received a number of victim impact statements from friends and family members of the deceased, all of which I have been read. We have also heard the statements that have been read out in Court today. These statements detail the trauma, loss and devastation caused by the murder of the victim.
Pre-sentence reports
[20]I turn now to the pre-sentence reports.
[21] The Court has a Provision of Advice to Courts (PAC) report in respect of each offender.
[22] With regard to Mr Candy, the PAC report describes significant alcohol consumption on the day of the offending, as well as being under the influence of cannabis at the time. In the report, Mr Candy is said to have stated that he never intended for the situation to escalate to the level it did, and did not remember the
majority of what happened after the victim was placed in the car. Mr Candy is said to have described the incident as not feeling real and that he still could not believe his actions resulted in the victim’s death.
[23] With regard to Mr Webster, the PAC report describes Mr Webster as feeling “set up” and that he was annoyed that he was involved in the offending. The report states Mr Webster felt scared when punching the victim, although he was also frustrated with the victim. Mr Webster is said in the report to have stated that he usually gets along with everybody and had never been involved in any form of violence prior to this offending. The report writer assessed Mr Webster’s remorse for the offending as being genuine.
[24] In addition to the pre-sentence reports, there are also reports under s 27 of the Sentencing Act. Reports available in respect of both Mr Candy and Mr Webster detail the personal circumstances of each.
[25] With regard to Mr Candy, the report describes a physically and psychologically abusive household, [REDACTED], which still affects him more than 30 years on. The report describes Mr Candy’s subsequent dependence on drugs, including for a time, methamphetamine, and significant consumption of alcohol. Mr Candy accepts that he will be serving a long sentence of imprisonment and according to the report writer has expressed a willingness to undertake whatever counselling is required to address his numerous underlying issues.
[26] The report prepared in respect of Mr Webster describes his significant regret for the offending, and says that he still finds it hard to understand how he ended up hurting and killing someone. According to the report, Mr Webster does not describe any other instances of violence or anger in his life. The report says that Mr Webster is open to counselling and any programmes that will help him, and hopes to return to dairy farming when he is ultimately released.
Approach to sentencing for murder
[27] I now detail the approach that the Court must take when sentencing someone for murder.
[28] The presumptive sentence for murder is life imprisonment, unless such a sentence would be manifestly unjust.4 The threshold to displace the presumptive sentence of life imprisonment is high and will only be met in exceptional cases.5
[29] If the sentence is life imprisonment, the offenders must also serve a minimum period of imprisonment to satisfy the following purposes:6
(a)holding the offenders accountable for the harm done to the victims and the community;
(b)denouncing the conduct that the offenders were involved in;
(c)deterring the offenders and others from committing the same or a similar offence; and
(d)protecting the community from the offenders.
[30] I now discuss a number of cases where these principles have been considered by the Court.
[31] The case in R v Williams, the Court of Appeal set out a two-step approach to be adopted in s 104 cases.7 The first step is to consider the aggravating factors set out in s 104 and any other aggravating and mitigating factors. The second step is to determine the MPI in all the circumstances of the case, including those of the offender.
[32] If the Court considers that one or more of the “exceptional circumstances” set out in s 104(1) is engaged, a MPI of 17 years must be imposed unless it would be manifestly unjust. In R v Williams, the Court held that in such cases, the sentencing Judge should not depart lightly from the specified MPI.8 Circumstances that may justify departure include where the aggravating factors are of peripheral significance,
4 Section 102(1).
5 R v Rapira [2003] 3 NZLR 794 (CA) at 828.
6 Sentencing Act, s 103(1) and (2).
7 R v Williams [2005] 2 NZLR 506 (CA) at [52]–[56].
8 At [62].
or the culpability of the offence was “relatively low having regard to the range of cases caught by s 104”.9
[33] In cases where the first step points to a lesser minimum term, however, the Court goes on to consider whether at the second step, a MPI of 17 years would be manifestly unjust. If so, the MPI must be reassessed to what the Court considers to be justified in the circumstances.
[34] The Court of Appeal has held that where a number of s 104(1) factors are engaged, a starting point for a MPI higher than 17 years may be appropriate.10
Submissions of the parties
Crown submissions
[35] I turn now to discuss the submissions that have been advanced by the Crown and by counsel for each of the defendants.
[36] In respect of Mr Candy, the Crown submits that the factors in s 104(1)(d), (e) and (g) apply and that the Court should order a MPI, after discount for guilty plea, of between 17 and 19 years’ imprisonment.
[37] In respect of Mr Webster, the Crown submits the factors in s 104(1)(e) and (g) apply. The Crown acknowledges a 17-year MPI may be manifestly unjust on account of Mr Webster’s youth and previous good character. It is submitted that the MPI, after discounting for guilty plea, youth and previous good character, should be between 13 and 15 years.
Defence submissions
[38]I turn now to the defence submissions.
9 At [66]–[68].
10 Marong v R [2020] NZCA 179 at [44]–[45]; Singh v R [2019] NZCA 436 at [19]–[26]; and R v
Baker [2007] NZCA 277 at [23].
[39] Counsel for Mr Candy accepts that the circumstances of the offending engage s 104 of the Sentencing Act and that a MPI of 17 years is justified. However, counsel submits it should not be higher than this.
[40] Counsel for Mr Webster accepts that the factors in s 104(1)(e) and (g) are engaged. However, counsel submits that given Mr Webster’s youth, lack of previous convictions, remorse, early guilty plea and prospects of rehabilitation mean that it would be both manifestly unjust to impose a MPI of 17 years, and manifestly unjust to impose a sentence of life imprisonment. Counsel submits that the appropriate end sentence for Mr Webster is a finite sentence of 16 years’ imprisonment with a MPI of eight years.
[41] As an alternative, counsel in his written submissions, suggested that if life imprisonment was imposed, there should be an end MPI of 11 to 12 years but in his oral submissions has revised that to 10 years.
Purposes and principles of sentencing
[42]I now turn to discuss the principles and purposes of sentencing.
[43] I am required to take into account the principles and purposes set out in s 8 of the Sentencing Act. In this case I note in particular the importance of the following principles:
(a)the gravity of the offending in the particular case, including the degree of culpability of each offender;11
(b)the need to impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate;12
11 Sentencing Act, s 8(a).
12 Section 8(d).
(c)the general desirability of consistency with appropriate sentencing levels in respect of similar offenders committing similar offences in similar circumstances;13 and
(d)any information provided to the Court concerning the effect of the offending on the victims.14
[44] I may also take into account as relevant the purposes of sentencing under s 7(1). I consider the most relevant purposes of sentencing in this case are:
(a)to hold the offender accountable for harm done to the victim and the community by the offending;15
(b)to promote in the offender a sense of responsibility for, and an acknowledgment of, that harm;16
(c)to denounce the conduct involved in the offending;17
(d)to deter the offenders and other persons from committing the same or similar offences;18 and
(e)to protect the community from the offenders.19
Sentencing analysis
Section 104(1) factors
[45] I turn now to analyse the s 104 matters that have been discussed by the Crown and defence counsel.
13 Section 8(e).
14 Section 8(f).
15 Section 7(1)(a).
16 Section 7(1)(b).
17 Section 7(1)(e).
18 Section 7(1)(f).
19 Section 7(1)(g).
[46] Firstly, the murder was committed with a high level of brutality, cruelty, depravity or callousness, in the terms of s 104(1)(e). The Court of Appeal has stated there is “no particular difficulty involved” in the meaning of these terms, involving, respectively, savage violence, callous indifference, moral corruption, and insensitive and cruel disregard for others.20 The focus in using these terms is on the manner in which the murder was actually committed.21 The brutality, cruelty, depravity and callousness must be at a “high level”.22
[47] I consider that the murder in this case was committed in a way that involved a high level of each of brutality, cruelty, depravity and callousness. The facts of the offending make for harrowing reading and involved savage violence, callousness and cruel disregard for the victim. It can also be described as “senseless” and was made all the more brutal by the offenders’ conduct following their acts, leaving the victim by the side of the pit.23
[48] Secondly, I consider s 104(1)(g) is engaged here, that the victim was particularly vulnerable. He was rendered semi unconscious by the defendants and was therefore defenceless. By the time he arrived at the farm, the state he was in rendered him particularly vulnerable.24
[49] In respect of Mr Candy, and Mr Candy only, s 104(1)(d) is also engaged, namely that murder occurred in the course of another serious offence, here this being the prior kidnapping of the victim as well as the assault with intent to cause grievous bodily harm and the murder of the victim in the course of the overall activity.25
[50] So, I consider a number of the s 104(1) factors are engaged in this case in respect of both defendants. It is therefore necessary to order that each defendant serve a MPI of at least 17 years unless it would be manifestly unjust to do so.
20 R v Gottermeyer [2014] NZCA 205 at [79(a)].
21 At [79(c)].
22 At [79(d)].
23 R v Frost [2008] NZCA 406 at [27], [40] and [41].
24 R v Oti [2021] NZHC 1800 at [76]; and Lavemai v R [2016] NZCA 363 at [22].
25 R v Slade [2005] 2 NZLR 526 (CA) at [39]. The offence of kidnapping is a serious offence: R v Kinghorn [2014] NZCA 168 at [41].
Relevant cases
[51] In my analysis of an appropriate MPI, I have had regard to a number of similar cases.
[52] I refer in particular to the decision in R v Oti, where the offender murdered the victim having assaulted the victim over a period of some six hours.26 Muir J considered that s 104(1)(e) was engaged,27 and due to the defencelessness of the victim and the likely fact that it appeared he had been rendered unconscious, he would also have found s 104(1)(g) to have been engaged as well.28 His Honour held that a notional MPI of 17 years was appropriate but that a 10 per cent discount for a combination of background personal factors, remorse and rehabilitation was available.29 Noting that the offender had also engaged in a positive restorative justice meeting with the immediate family of the deceased, the Judge held that 17 years’ imprisonment would be manifestly unjust and imposed a MPI of 15 years and three months.30
[53] In Carroll v R, the appellant had been found guilty of murdering the deceased after going to his home armed with a wheel brace, hitting the deceased in the face up to six times with the brace, then wrapping the body and transporting the deceased to the side of the road and attempting to burn the body.31 The Court of Appeal considered the 17-year MPI imposed was justified, noting that the murder was committed with a significant degree of premeditation as well as having a “vigilante dimension” component, and that the attack was brutal, involved attacks to the head, and noting too the indignities to the deceased’s body after his death, including trying to bury it and dumping it on the roadside.32
[54] In Lavemai v R, the appellant went to a neighbour’s house intent on stealing items.33 The appellant punched the deceased, rendering him unconscious, before
26 R v Oti, above n 24.
27 At [69]–[74].
28 At [76].
29 At [116].
30 At [124].
31 Carroll v R [2018] NZCA 320.
32 At [13]–[15].
33 Lavemai v R, above n 24.
repeatedly punching the deceased in the head and neck. The appellant then stole a number of things from the property while the deceased struggled to breathe, returning more than once without rendering any assistance. The Court of Appeal upheld the MPI of 17 years, finding that the sentencing Judge was correct to find that the factors in s 104(1)(d) and (e) were both engaged, the Judge having described it as “a particularly brutal and callous murder carried out in the course of a robbery” and involving a particularly vulnerable person.34
[55] In Akash v R, the appellant stabbed his pregnant partner 29 times to the scalp, face, neck, chest and abdomen, then disposed of her body.35 The Court of Appeal held that s 104(e) applied, as the murder was “a vicious and prolonged attack” and the dumping of the body on the roadside was indicative of callousness.36 The deceased’s pregnancy exacerbated the loss and harm of the offending. The Court of Appeal held that the starting point of a MPI of 18 years was appropriate,37 as was the discount of one year for a guilty plea and some remorse.38
Aggravating and mitigating factors common to both offenders
[56]I turn now to the aggravating and mitigating factors common to both offenders.
[57] I have noted the purposes and principles of sentencing I consider to be most relevant in this case. It is important that the MPIs imposed in this case hold the offenders accountable for the grave and serious harm done to the deceased and the other victims in this case, and to promote in the offenders responsibility and accountability for, and an acknowledgement of, that harm.
[58] I turn now to what I find to be the aggravating features that have been established:
34 At [8]–[10] and [22].
35 Akash v R [2017] NZCA 122.
36 At [19].
37 At [21].
38 At [25]–[26].
(a)the offending involved actual violence and use of a vehicle and chain in a manner equivalent to use of a weapon;39
(b)the extent of loss and harm, both in the damage inflicted on the deceased himself as well as the resulting loss and harm to the deceased’s family and close friends;40
(c)a particularly high level of cruelty in the commission of this murder, including the physical attacks to the deceased’s head, neck and body but also the dumping of the deceased’s body in the rubbish pit leaving him there bleeding significantly from his injuries, with neither offender seeking any medical assistance for him over the following two days;41
(d)the victim was particularly vulnerable, given he had been rendered unconscious by the offenders’ attacks prior to being dragged along the road;42
(e)the offending involved an element of vigilante justice, and by that I mean it appears that the motivation for this was the fact that the deceased is said to have owed money to the defendants. Effectively what the defendants were doing was rendering self-help justice to recover the sums of money that they believed that the deceased owed them;43 and
(f)the offence involved multiple offenders.44
Further factors in respect of Mr Candy
[59] There are some further factors in respect of Mr Candy that aggravate the offence. As I have noted, the murder was committed in the execution of other offences
39 Sentencing Act, s 9(1)(a).
40 Section 9(1)(d).
41 Section 9(1)(e).
42 Section 9(1)(g).
43 Section 9(4); and Carroll v R, above n 31, at [13].
44 Section 9(4).
including the serious offences of kidnapping and assault with intent to cause grievous bodily harm.
[60] I find that there was an element of premeditation involved on Mr Candy’s part, albeit not as serious predetermination and premeditation as is often seen in the sense that Mr Candy had already completed the offence of wounding the victim with intent to cause him grievous bodily harm prior even to kidnapping him.45 The premeditation to the murder is also evident in the fact that Mr Candy continued to assault the deceased in the vehicle periodically during the 30-minute drive back to the scene of the murder itself, rendering the deceased semi-conscious and unable to resist by the time they arrived.
[61] The violence was significant, and is compounded by the fact of Mr Candy encouraging the co-offender, Mr Webster, to also then attack the deceased, upon arrival at the farm.
[62] As I have also noted, the offending involved extreme brutality, cruelty, depravity and callousness on Mr Candy’s part, involving Mr Candy obtaining the chain, attaching it to the car and to the deceased and dragging the deceased down the road.
[63]Mr Candy has some relatively low-level prior violence convictions.46
[64]I consider the aggravating factors relating to the murder mean that s 104(1)(d),
(e) and (g) are all engaged to a high level in respect of Mr Candy.
[65] As the Court of Appeal has held, where a number of s 104(1) factors are engaged, a starting point for the MPI higher than 17 years may be appropriate.47
[66] I believe this to be the case here. I consider the nature of the offending, the encouragement of the co-offender to attack the deceased while unconscious, and the
45 Section 9(1)(i).
46 Section 9(1)(j).
47 Marong v R, above n 10, at [44]–[45]; Singh v R, above n 10, at [19]–[26]; and R v Baker, above n 10, at [23].
level of brutality, cruelty, depravity and callousness, here warrant a starting point of 19 years MPI.
[67] Having regard to the cases that I have just discussed, I consider Mr Candy’s culpability is greater than the offenders in those cases. I therefore consider that a starting point of 19 years is both justified and appropriate.
[68] By way of adjustments, counsel for Mr Candy submits there are mitigating factors which must be taken into account, namely Mr Candy’s guilty plea, and the psychological [REDACTED] abuse he suffered as a child, which led to his alcohol and substance addictions, and ultimately to his loss of control on the night of the offending. The Crown, for its part, submits the reports provided to the Court do not disclose any causative link between the background of the offender and the offending, but acknowledge a discount limited to between one and two years may be available for Mr Candy’s guilty plea and any other mitigating factors.
[69] As counsel have acknowledged, reductions for personal circumstances of an offender are constrained when s 104 is engaged. I note the comments of the Court of Appeal in respect of this in Hohua v R, in which the Court stated that although an offender’s personal circumstances may bear on the setting of an appropriate sentence, and their potential mitigating effect is “not limited” to particular types of offending:48
… where a person is for sentence for murder, particularly one as grave and callous as the present, the discretion available to the Court to reduce an otherwise appropriate sentence on account of such considerations will be more constrained.49
[70] The Court of Appeal said that this is due to the need for a MPI to reflect the seriousness of the crime and to give effect to the legislative policy mandated by the statutory MPI that is to be imposed for particularly callous and brutal murders.50 As the Court stated, “[a]n offender’s background of deprivation may carry less weight in the context of such a sentencing exercise.”51
48 Hohua v R [2019] NZCA 533 at [44].
49 Sentencing Act, s 104(1)(e).
50 Hohua v R, above n 48, at [44]; and R v Williams, above n 7, at [66]–[67].
51 At [44], citing Keil v R [2017] NZCA 563 at [55]–[58].
[71] Mr Keegan, counsel for Mr Candy, submits that Mr Candy has expressed genuine regret, empathy and remorse for the victim and his family, beyond simply regret for the situation in which he now finds himself. I acknowledge that the reports record that Mr Candy has expressed some remorse. However, as the Crown rightly points out, there is some question as to the genuineness of this remorse, given that Mr Candy also maintains he does not remember the majority of what happened in the course of the murder.
[72] I also acknowledge the contents of the PAC report and s 27 report. In those reports, Mr Candy has acknowledged the devastating impact his actions have had on the victim’s family, especially the victim’s children growing up without a father. I also record the descriptions in the s 27 report of [REDACTED] abuse Mr Candy suffered as a child, which still affects him negatively today and has resulted in alcohol and drug dependency, depression and other issues. He is reportedly motivated to seek treatment and assistance while incarcerated to ensure he can better himself, and I encourage him to do that. However, it is my conclusion that the prospects of rehabilitation and the display of remorse are insufficient to warrant a significant discount for those matters.
[73] Any reduction on account of Mr Candy’s personal circumstances must be limited in a case where s 104 is engaged. I therefore grant a discount of six months to the MPI to account for Mr Candy’s personal circumstances, his limited expressions of remorse and such limited prospects of rehabilitation as there may be.
[74] I also acknowledge that he has pleaded guilty here, and has accepted responsibility for the offending in this way, which is a factor in mitigation.52 Discounts for guilty pleas in s 104 cases are at the discretion of the sentencing Judge.53 Generally, a guilty plea discount in cases of murder will be in the vicinity of one to two years.54 The plea here was entered relatively early, although not at the earliest opportunity. Having regard to discounts provided in similar cases, I am prepared to provide a discount to the MPI of 18 months to account for Mr Candy’s guilty plea.
52 Sentencing Act, s 9(2)(b).
53 Malik v R [2015] NZCA 597 at [33]–[34].
54 R v Peeni [2020] NZHC 1352 at [24]; R v Garson [2020] NZHC 3259 at [60]; and R v Gottermeyer, above n 20, at [85].
[75] Applying these discounts, taken against the starting point of a MPI of 19 years, results in a final MPI of 17 years. I do not consider there are any factors here which make such an MPI manifestly unjust.
Further factors in respect of Mr Webster
[76]I turn now to address the further factors in respect of Mr Webster.
[77] I first record there is an aggravating factor additional to those described above of a degree of premeditation on Mr Webster’s part. Contrary to the submissions of counsel, I note that he had been rung by Mr Candy as Mr Candy’s partner drove Mr Candy back to the scene of the offending with the deceased. Upon their arrival there, he immediately commenced (although it seems, that Mr Candy’s encouragement) his assault on the deceased.
[78] Mr Webster was involved in the extreme violence used on the, by then, unconscious victim and was involved in the depraved act of dragging the victim down the track chained to the vehicle before both offenders dumped the body at the pit. Though his involvement was more limited than Mr Candy’s, nevertheless he had a significant role in the offending. He also did nothing in the days following to seek medical assistance or to check what had happened to the deceased.
[79] As noted above, I consider the factors in s 104(1)(e) and (g) are engaged in respect of Mr Webster’s involvement. Given the significance of the offending in this case, which I have found to be brutal, depraved and callous, and involved a vulnerable victim, I do not consider a sentence of life imprisonment to be manifestly unjust.
[80] There is therefore a presumption that Mr Webster will be required to serve a MPI of 17 years. For the same reasons that I have already outlined, I consider that such a MPI would be appropriate to reflect the seriousness of the offending.
[81] Against this, however, there are several further mitigating factors applicable to Mr Webster in this case that have a significant effect on the overall MPI. Firstly,
Mr Webster’s previous good character; 55 secondly, a more limited involvement in his part of the murder;56 and thirdly, and most significantly, his age at being 18 years old at the time of the offending.57 Mr Webster has also similarly pleaded guilty and there is also before the Court a s 27 report describing his personal circumstances, and a PAC report in which Mr Webster expresses remorse for his offending. I turn to consider the effect of these factors on the appropriate MPI in this case.
[82] Beginning with Mr Webster’s guilty plea, I accept he pleaded guilty at a relatively early stage. I am prepared to grant Mr Webster the same discount that I provided to Mr Candy and that is 18 months for his guilty plea.
[83] Turning to Mr Webster’s age. His counsel has discussed the case of Churchward v R. I accept that the Court of Appeal addressed the effect of youth in a s 104 in the following way:58
… although there is no automatic displacement of a 17 year minimum period on the basis of youth alone, the age of a defendant can be a mitigating factor and falls naturally for consideration under the broadly worded test of “manifestly unjust” …
[84]The Court, which held that youth extends past 18 years of age, commented:59
[77] Youth has been held to be relevant to sentencing in the following ways:
(a)There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.
(b)The effect of imprisonment on young people, including the fact that long sentences may be crushing on young people.
(c)Young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult.
(footnotes omitted)
55 Sentencing Act, s 9(2)(g).
56 Section 9(2)(d).
57 Section 9(2)(a).
58 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [76].
59 At [98].
[85] In that case, which involved a 17-year-old, the Court held that an MPI of 17 years was manifestly unjust and reduced it to 13 years.
[86] Similarly, the Court of Appeal has also set out its approach to assessing manifest injustice in respect of youth murderers recently in Dickey v R which both counsel have referred me to. 60 That case was not a s 104 case but discussed youth in the context of manifest injustice as follows:61
… the term “manifest injustice” has come to have a generally consistent meaning under the [Sentencing] Act:
(a)It requires that the instant case be “exceptional” in the sense that it justifies departure from legislative policy.
(b)It requires that the injustice be manifest, that is, clear.
(c)Each case must be assessed on its own merits, having regard to the full register of sentencing purposes, principles and factors, and qualifying cases need not be rare.
However, the weight to be attached to any given consideration may vary with the consequences otherwise to be visited on the offender, relative to the culpability of their offending and personal mitigating factors …
[87]The Court went on to state:62
… we think it is no longer correct to say … that youth can carry little weight when balanced against the public interest in denunciation and accountability.
[88] While, as the Court stated, the seriousness and culpability of the offending “remain centrally important”, Mr Webster’s age at the time of the offending is clearly a matter pointing towards a lower MPI.63 I accept that Mr Webster might have been more susceptible to the negative influences of his considerably older co-offenders. For the reasons that I have described, in particular the neurological differences between young people and older adults, the adverse effect of imprisonment on young people, and the greater rehabilitative prospects and capacity for treatment of young people, I consider a discount to reflect Mr Webster’s age at the time of the offending would be both in the interests of Mr Webster as well as the interests of the public.
60 Dickey v R [2023] NZCA 2 at [167].
61 At [167].
62 At [177].
63 At [177].
[89] As the Court stated recently in Dickey v R, there is no outer limit to the discount for youth, but discounts of between 10 and 30 per cent are common.64 In this case, I consider a discount of two-and-a-half years, or just less than 15 per cent, to the MPI would be appropriate.
[90] I next note that Mr Webster has no previous convictions nor any prior involvement with the criminal justice system. Mr Webster’s clean record is also a factor in mitigation. I am prepared to reduce the MPI by a further six months to reflect Mr Webster’s previous good character.
[91] Turning to any final mitigating factors, it is clear that while Mr Webster was significantly involved in the murder, particularly in the assault of the victim, he was not the primary actor in the offending and his involvement was at a lower level than that of Mr Candy. It is clear that Mr Webster was encouraged to participate in the offending at the encouragement, and by the actions and words, of both the co- offenders.
[92] I also acknowledge the expressions of remorse evident in the reports that I have had submitted to me, and the assessment by the PAC report writer that such remorse appeared genuine. It seems from the material that I have been provided that Mr Webster regrets his involvement in the offending and that he is open to counselling and any programmes that may help him, and is willing to undertake any interventions to make him a better person when he gets out of prison. Independently of his youth, this also points towards some rehabilitative prospects, and I note Mr Webster was assessed by the report writer as being a low risk of re-offending.
[93] Taking these matters into account, I grant a further discount of six months to account for Mr Webster’s personal circumstances, including his more limited involvement in the offending, regret, apparently genuine remorse, low risk of re- offending and prospects for rehabilitation.
[94] Taking these discounts together results in a total discount of five years from the notional MPI of 17 years. In these circumstances, I am satisfied that a MPI of
64 At [175].
12 years would be sufficient here to fulfil the purposes for which a MPI is required to be imposed under s 103(2). This is comparable to the 11-year MPI ordered in R v Lewis in respect of an 18-year-old defendant in that case who pleaded guilty to charges of murder and aggravated robbery.65
[95] Having found that the appropriate MPI in this case would be 12 years, that is, less than the mandatory minimum term, the next question, following the established approach in R v Williams, becomes whether to impose a MPI of 17 years would be manifestly unjust, and that a lower MPI is warranted in the circumstances.
[96] As the Court of Appeal has recently stated in Dickey v R, it “remains generally true to say that youth alone is not enough to establish manifest injustice.”66 However, the Court stated that young persons “may present with a combination of mitigating circumstances relevant to the offending and personal mitigating factors which together are capable of establishing manifest injustice”.67 In this case, and on the basis of the considerations that I have outlined earlier, and I note in particular the youth aspect, I consider a MPI of 17 years would be manifestly unjust. I consider the appropriate MPI for Mr Webster in this case, to be 12 years.
Sentence
[97]Mr Candy and Mr Webster, would you please stand.
[98] Mr Candy, on the charges of wounding with intent to cause grievous bodily harm, kidnapping and murdering Mr Jacob Ramsay, you are sentenced to life imprisonment, with a minimum period of imprisonment of 17 years. The motor vehicle used in the offending will also be forfeit. On the charges of kidnapping and wounding with intent to cause grievous bodily harm, you are sentenced to concurrent terms of 14 years’ imprisonment on each charge.
[99] Mr Webster, on the charge of murdering Jacob Ramsay, you are sentenced to life imprisonment, with a minimum period of imprisonment of 12 years.
65 R v Lewis [2018] NZHC 1877.
66 Dickey v R, above n 60, at [177].
67 At [177].
[100]You may stand down.
Churchman J
Solicitors:
Crown Solicitor, New Plymouth for Crown
Bourke Law, New Plymouth for Defendant Webster
cc: P M Keegan, New Plymouth for Defendant Candy
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