R v Carruthers - [2012] NZHC 1662

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2011-012-001611 [2012] NZHC 1662

THE QUEEN

v

MARK ROBERT CARRUTHERS

Hearing: 11 July 2012

Appearances: R P Bates for Crown
J M Ablett-Kerr QC and D J Matthews for Accused

Judgment: 11 July 2012

REMARKS ON SENTENCE OF CHISHOLM J

[1] Mark Carruthers, following a sentencing indication this morning you pleaded not guilty to murder but guilty to manslaughter. Following discussion with counsel it was decided that it was appropriate, if at all possible, to sentence you today and I am extremely grateful to the probation officer for providing an oral report. Given that I have so recently provided a sentencing indication, I can be relatively brief.

[2] On 14 April 2011 you and your father met Peter Holmes and the victim at a beach. When you went to that location you were accompanying your father to avoid him falling asleep when he was driving (because of an illness rather than any sinister reason). Unfortunately, once you got to the beach you became involved in an attack on the victim with Mr Holmes. Your role at that time was kicking and punching. The Crown accepts that you then withdrew. Mr Holmes continued the attack using a
steel bar and the victim died from the injuries inflicted by Mr Holmes. It is also

R V CARRUTHERS HC DUN CRI-2011-012-001611 [11 July 2012]

accepted by the Crown that you did not know that Mr Holmes, who has pleaded guilty to murder, intended to murder the victim or that he would use a weapon.

[3] At the time of this offending you were aged 17 years, eight months. As Mrs Ablett-Kerr has commented, you have had a difficult background and I have read the information that has been provided by your counsel in that regard. But difficult backgrounds do not provide any excuse for offending of this nature. Mrs Ablett-Kerr has also conveyed to the Court your remorse, and it is not disputed by the Crown that your remorse is entirely genuine. It will, of course, be on your conscience that you played a role in awful events that led to the death of a person. You can, however, recover from this bad episode in your life. You have not got any previous convictions. Up to this time you were of good character. It seems that Mr Holmes had far too much influence over you and I suspect that, but for that, you would not have been involved in these events.

[4] As far as aggravating features of the offending are concerned, the attack was unprovoked, there were two persons involved in that attack, and there was more than one blow to the victim. On the mitigating side (as far as the offending itself is concerned) it is to your credit that you withdrew from the assault.

[5] It is accepted by the Crown that there are no aggravating factors relating to you personally. In terms of personal mitigating factors the Crown rightly refers…

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.

Continue reading R v Carruthers

Details

AGLC: R v Carruthers [2012] NZHC 1662
Case: [2012] NZHC 1662
Decision Date: 11 July 2012

CaseChat Overview and Summary

Mark Robert Carruthers was convicted of manslaughter following a fatal assault on a victim at a beach. The Crown accepted that Carruthers was not aware that his co-offender, Peter Holmes, intended to murder the victim or that he would use a weapon. The court had to determine an appropriate sentence for Carruthers, considering both the aggravating and mitigating factors of the offence.

The legal issues involved in this case primarily revolved around determining the appropriate sentence for Carruthers, taking into account his age, lack of previous convictions, and genuine remorse. The court also had to consider the influence of the co-offender, Holmes, on Carruthers and the mitigating factors of Carruthers' withdrawal from the assault.

The court decided to sentence Carruthers to two years imprisonment, with a starting point of four years, reduced by 50% due to the mitigating factors. The judge also imposed special conditions for six months, including attending psychological services, treatment and counselling for alcohol problems, vocational training, and residing at an approved address. Carruthers was also subject to the three strikes law, and a warning was given about the consequences of another serious violent conviction.

Additionally, the court rescinded the First Stage Warning imposed on Carruthers as he was not eligible to receive such a warning due to his age at the time of the offence.

Orders