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 to your age, that you have entered a guilty plea, your remorse and the fact that you were previously of good character without any previous convictions.

[6]      In terms of the starting point, as I indicated earlier today I will adopt four years.   That is after considering cases that have been cited by counsel including R v Greer & Ors.1    I have allowed a 50% discount for the mitigating factors which means that the end sentence is two years imprisonment.  You have been in prison on remand for quite some time already and I understand that you will be eligible for

parole probably at the end of August.

1 R v Greer & Ors Whangarei T013699 13 June 2003.

[7]      Now, if you would be good enough to stand please.   Mark Carruthers, I sentence you on the charge of manslaughter to imprisonment for two years.   In addition to the general conditions which will apply for two years, there are the following special conditions which will apply for six months.

[8]      First,  you  are  to  attend  and  complete  an  assessment  by  Psychological Services and, if found appropriate, you are to attend treatment and counselling by Psychological Services as directed by the probation officer and to the satisfaction of Psychological Services.

[9]      The next condition reflects that you have an alcohol problem.  You must get on top of that problem.  All too often alcohol gives rise to offending like this.  You have the will to overcome it and you will now have assistance to do so.  The second condition is that you are to attend any treatment and/or counselling that may be directed by the probation officer and to the satisfaction of the programme provider.

[10]     The third condition is that you are to undertake any work vocational training as may be directed by the probation officer and to the satisfaction of the education provider.  The fourth condition is that you are to reside at an address approved by the probation  officer  and  not  to  move  from  that  address  without  the  prior  written approval of the probation officer.

[11]     You must make sure that you comply with all those conditions.

[12]     Mark  Carruthers,  given  your  conviction  for  manslaughter,  you  are  now subject  to  the  three  strikes  law.    I  am  going  to  give  you  a  warning  of  the consequences of another serious violent conviction.  You will also be given a written notice which contains a list of these serious violent offences.  If you are convicted of any one or more serious violent offences, other than murder, committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.  If you are convicted of murder, committed after this warning, then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so.  In that event the Judge must sentence you to a minimum term of imprisonment.

Addendum

[13]     It  has  come  to  my  attention  that  I  imposed  a  First  Stage  Warning to Mark Carruthers   pursuant   to   Section   86(b)   of   the   Sentencing   Act   2002. Mr Carruthers was not eligible to receive such a warning as he was 17 years of age at the time of the offending.  I therefore direct that the warning be rescinded.

Solicitors:

Wilkinson Adams Lawyers, Dunedin,  [email protected]

Judith Ablett-Kerr QC, P O Box 46, Dunedin 9054  [email protected]