R v Clayton HC Wellington CRI-2005-078-1785

[2007] NZHC 1905

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2005-078-1785

THE QUEEN

v

CAROL MAY CLAYTON RICHARD STEVEN PEARCE RICHARD ANDREW EDGARTON

Hearing:         22 June 2007

Appearances: A Courtney for Clayton

P V Paino with I Hard for Pearce
I M Antunovic with S Antunovic for Edgarton
G J Burston with C Boshier for the Crown

Judgment:      22 June 2007

SENTENCE OF MACKENZIE J

Carol May Clayton, Richard Steven Pearce and Nicholas Andrew Edgarton,

[1]      You each appear for sentence on a number of charges arising out of events which  occurred  on  3  September  2005  at  Upper  Hutt.    The  facts  are  that  you, Ms Clayton,  were  then  living  in  Upper  Hutt  and  Richard  Pearce  and  Nicholas Edgarton were living with you as boarders.   You had been in a relationship with Mr David Betti.  You had become excessively possessive about that relationship, and you had developed an obsessive belief that he was having an affair with Judith Betti and Latisha Owens.  Ms Betti and Ms Owens both lived at 50A Thackeray Street,

where a number of other members of their family also lived, including Ms Betti’s

R V CLAYTON AND ORS HC WN CRI-2005-078-1785  22 June 2007

mother, Mrs Joan Betti.  Your obsession became such that you formed a wish to kill Ms Betti and Ms Owens.  You had made threats against Ms Owens, one of which is the subject of one of the charges you face.  You formulated a plan to fire-bomb the house in which they were living.   Your plan to fire-bomb the house was communicated to Richard Pearce, and he volunteered to assist you in it.  You both participated in the purchase of the materials to manufacture Molotov cocktails, consisting of bottles filled with petrol with a wick.  Two such fire-bombs were made. You were at home on the evening of Friday, 2nd September, making your preparations.   Nicholas Edgarton was also present, and agreed to assist.   It was agreed that you would drive them to the property, that they would throw the Molotov cocktails through the windows of the house and then run back to you in the car.

[2]      In the early hours of Saturday, 3 September, you put that plan into effect. You, Richard Pearce and Nicholas Edgarton, each threw one Molotov cocktail through the lounge window.   There were  five people in the house at the time: Mrs Joan Betti, Ms Judith Betti and Ms Owens, and Ms Betti’s two sons.  Four of the occupants were able to escape.  Mrs Joan Betti, who was elderly and of restricted mobility, was unable to escape and perished in the fire.  After having fire-bombed the house,  you returned home.   You intercepted  a police communication which indicated that one person had died in the fire, and you, Ms Clayton, received a call from Judith Betti informing you that her mother had died.  You went around to visit the family at that time, and over subsequent days and weeks you assisted the family and expressed sympathy to them.

[3]      The fire was initially treated as not suspicious.  However, the involvement of the three of you in it became known, particularly when others who were in the house living with you when you carried out this fire-bombing reported it.   Each of you subsequently admitted your involvement.

[4]      Carol Clayton, you were charged with one count of murder, two counts of attempted murder, one count of arson and one count of threatening to do grievous bodily harm.  Richard Pearce and Nicholas Edgarton, you were each charged with one count of murder and one count of arson.  At the commencement of your first trial  in  November  2006  you  each  pleaded  guilty  to  the  counts  of  arson,  and

Ms Clayton to the count of threatening to do grievous bodily harm.  Your trial on the remaining counts was unable to be completed and you appeared for re-trial on those counts in March 2007.   You, Carol Clayton, were found guilty on the count of murder and the two counts of attempted murder, of Judith Betti and Latisha Owens. Richard Pearce and Nicholas Edgarton, you were each found not guilty of murder but guilty of manslaughter.  You now appear for sentence on all charges, those on which you were convicted and those to which you had earlier pleaded guilty.

[5]      Carol  Clayton,  I  deal  firstly  with  you.    You  are  the  principal  offender, although your role was in form a secondary one.   You have been found guilty of murder.  On that charge, I must impose a sentence of imprisonment for life unless that sentence would be manifestly unjust.  There would be no such manifest injustice here; so the essential task for me is to fix the minimum period of imprisonment which you must serve in that life sentence.   That period may not be less than

10 years.  The Crown submits that s 104 of the Sentencing Act applies.  Where that section applies, the Court must impose a minimum period of imprisonment of at least 17 years unless that would be manifestly unjust.  The Crown submits that the factors  which  render  that  applicable  are  that  the  murder  involved  calculated  or lengthy planning, that it involved unlawful entry into a dwelling-place, that the murder was  committed in the course of other serious offences, that the murder involved a high degree of callousness, and that the deceased was particularly vulnerable because of her age and health.  I need to consider each of those features. In doing so, I bear in mind, as the Court of Appeal said in R v Green & Morice (CA461,

462/04, 2 June 2005), the s 104 criteria should not be interpreted in an overly literal fashion, or inconsistently with the clear purpose that s 104 cases will be very much the exception and not the rule.

[6]      As to whether there was calculated or lengthy planning, your counsel submits that this feature is not present here.  Counsel submits that every murder other than those committed on the spur of the moment involves a degree of planning, and that what is required is a degree of calculation and planning which takes the case out of the ordinary.  Here, there was a degree of planning to the extent of purchasing the materials to make the Molotov cocktails, over a relatively short period.  There were not in other respects extensive steps taken by way of planning.  Taken by itself, I

would not regard the degree of planning as placing this case in the most serious category to which s 104 applies.

[7]      As to the issue of unlawful entry into a dwelling-place, there was here no physical entry by any of the offenders, but the Molotov cocktails thrown through the window did infringe the security of the dwelling-house and led directly to death. The victim was, as counsel for the Crown points out, murdered in her own home. The list of circumstances in s 104 is to be approached purposively, and not in an over-literal or mechanistic way.  When that approach is adopted, I consider that this circumstance is present in this case.

[8]      As to the murder having been committed in the course of another serious offence, the Crown relies on the attempted murders and the arson.  I do not think that the two charges of attempted murder trigger s 104(d).  That would mean that every transferred malice case would potentially fall within s 104.  I do not consider that to be consistent with the legislative intention.  The arson, however, is a serious offence in itself.  It was the means by which you sought to achieve your objective of killing Judith Betti and Latisha Owens.  It had the effect of creating another set of victims, the owners of the house at 50A Thackeray Street, which was rented to the Betti family.  The victim impact statement describes the very considerable damage, both emotional and financial, which that aspect of your offending has caused.   Section

104(d) is accordingly applicable by reason of the arson.

[9]      As to callousness, there is always a degree of callousness in the offence of murder.  What is required to trigger s 104(e) is callousness which takes the case out of the ordinary.  I do not consider that to be present here so far as the circumstances of the offending are concerned.  An aspect of the offending is your use of Richard Pearce and Nicholas Edgarton to achieve your objective.  That may be described as cynical, even callous.  But I do not consider that adding that aspect in the offence itself takes the case to the level of callousness with which s 104(e) is concerned.  I do not regard the circumstances as triggering this particular aspect of the section.

[10]     The vulnerability of the victim needs to be seen in the light of the fact that yours is a transferred malice case.   The victim was vulnerable, but the intended

victims were not.  However, the seriousness of the offending is aggravated by the fact that there were two intended victims.  The application of s 104(g) to a case of transferred malice presents some difficulty.  As your case clearly falls within s 104 by reason of other circumstances, it is unnecessary for me to determine whether s 104(g) is triggered here.  But the fact that there were two intended victims, and the fact that the unintended victim was an elderly and ill lady, are relevant facts in assessing the gravity of your offending.

[11]     Having reached the conclusion that s 104 applies, I must impose a minimum period of imprisonment of at least 17 years unless I am satisfied that it would be manifestly unjust to do so.  The Court of Appeal decision in R v Williams [2005]

2 NZLR 506 requires me to undertake two steps. The first is to consider the degree of culpability in this case in relation to that involved in the standard range of murders which attract the statutory minimum period of 10 years, to consider the aggravating factors, including the s 104 factors, and the mitigating factors, and, having done so, to determine what minimum period is appropriate with regard to all of the circumstances of the case, including those relevant to the offender as well as the offending. The second step, if that first step suggests that a minimum period less than 17 years is appropriate, is that I must consider whether the imposition of that 17 year period would be manifestly unjust.

[12]     In undertaking that first step, I must have regard to all the circumstances of the offending, considering the totality of the offending, and to your own circumstances.  The two charges of attempted murder are relevant in assessing the degree of criminality involved in the murder charge.  The jury’s verdicts on those counts make clear the basis upon which their guilty verdict on the murder count has been reached.  The jury have clearly found that you intended to kill Judith Betti and Latisha Owens and by accident killed Joan Betti.   That clearly demonstrates the extent of your criminality on the murder charge.  The charges of attempted murder do not, except to that extent, add to your criminality.  An additional element in your criminality is that, in committing the murder, you did so by committing what was in itself  a  serious  offence,  namely fire-bombing  the  dwelling-house.    You  thereby infringed the security which the occupants of a dwelling-house are entitled to expect. The result of your actions was that a vulnerable victim, Mrs Joan Betti, lost her life.

The trauma, grief and distress which this has caused to the Betti family is demonstrated clearly in their victim impact statements.

[13]     As to your circumstances, I have the benefit of your pre-sentence report and a psychiatric report.   You are 59 years old.   You have in all respects prior to this offending led a blameless life apart from one previous conviction for unlawfully entering a motor vehicle in 1987.  The reports provide some insight into the cause of your offending.   You have a history of involvement with mental health services, which has culminated in a recent diagnosis of borderline personality disorder.  You have been voluntarily admitted to institutional care on a number of occasions, presenting with depression and anxiety.  Your poor mental health is assessed to arise from a combination of your early formative experience as a child, your personality structure,  and  your relationship  with  David  Betti.    During  your  childhood  your mother abused alcohol and was seldom available to provide care; your father was violent and abusive.   Your relationship with your husband was marked by serious physical abuse towards  you.   You have been  estranged from  your  children and grandchildren.  The outcome of your experiences has been that you have been very dependent on relationships with others for your emotional well-being and have maintained those relationships notwithstanding their exploitative and abusive nature, arising from an intense fear of abandonment and rejection.  That has also resulted in irrational feelings of jealousy, and explains your obsessive and intensely possessive behaviour towards David Betti, and the obsessive nature of the suspicions which you developed and the intensity of the feelings towards those whom you thought to be involved which has led you to form the murderous intent against them.  The report also notes your limited ability to regulate your emotional state, which meant that you were unable to respond appropriately as your feelings of anger and jealousy towards Judith Betti and Latisha Owens grew.

[14]     Those reports provide some insight into the reasons for your extreme reaction which has led to conduct which has no precedent in your past.  Your report writer expresses the opinion that the combination of your borderline personality disorder and depression would have certainly made you more susceptible to experiencing the kind of mood instability, anger and jealousy that led to the offence occurring.  The extent  to  which  your  mental  state  may  constitute  a  mitigating  factor  to  your

offending is an issue of some complexity.   Both counsel have made helpful submissions about it.  The principal issue here, in my view, is whether your mental state goes to reduce your moral culpability, as distinct from your legal responsibility. The matters which I have described may help to explain your offending, but they do not of themselves reduce your moral culpability.  The factor which persuades me that those matters are to be regarded as to some degree reducing your moral culpability is that your state of mind has led you to commit acts which are completely out of character and for which there is no other explanation.  That suggests that your mental state is disturbed to such a degree that that ought properly to be regarded as exceptional and reducing to some degree your moral culpability.

[15]     Taking all those factors into account, I consider that, but for the requirements of s 104, a minimum period of less than 17 years would be appropriate.  Section 104 is directed towards the most serious murders, which will be very much the exception and not the norm.   When both the circumstances of the offending, and your own circumstances, are considered, I would not, in the absence of s 104, regard your offending as falling within the most serious and exceptional category of murders.

[16]     However, I am unable to accept your counsel’s submission that the offending does not warrant more than the standard minimum non-parole period of 10 years. The murder count in itself, having the elements which are shown by the attempted murder convictions, is sufficiently serious in itself to justify a period in excess of

10 years.  When there is added to that the additional criminality involved in the arson count, and, to a lesser degree, the threatening count, a period in excess of 10 years is required.  On my assessment, at the first step of the Williams test, a minimum period of 13 years would be justified.

[17]     That means that I must now consider the second step, namely whether, in the light of that conclusion as to the appropriate term, the imposition of the 17 year minimum mandated by s 104 would be manifestly unjust.   That term indicates a requirement  that  injustice  be  clearly  demonstrated  before  I  can  exercise  the sentencing discretion to impose a minimum period below 17 years.  The minimum period  may  not  be  departed  from  lightly  and  the  reasons  for  departure  must withstand scrutiny.  However, the test is not one which is necessarily satisfied only

in rare cases with exceptional circumstances, and each case must be considered on its merits.

[18]     In making that assessment, I think that the imposition of a 17 year minimum period in your case would be manifestly unjust.   My reasons for this are that I consider that the s 104 factors that apply, while they bring the case within s 104, do not elevate the seriousness of the offending to the same extent as is to be seen in many cases where a 17 year minimum has been applied.  Your counsel describes the case as unique, and the circumstances here are certainly very unusual.   Further, I consider that your personal circumstances, namely your mental state, your age, and your lack of previous convictions, also lead to the result that a 17 year period would be manifestly unjust.  Your offending was out of character and is not associated with the history of violence which all too often accompanies the most serious cases of murder.

[19]     For  these  reasons,  I  consider  that  a  minimum  period  of  13  years  is appropriate.  It is to be noted that the psychiatric report records that it is important that you continue to receive the level of mental health care that you currently have. The view is expressed that this can be provided quite adequately in the current prison environment, and it will be important for the prison authorities to ensure that the treatment is provided.

[20]     Accordingly, on the charge of murder you are sentenced to imprisonment for life.  You will serve a minimum period of imprisonment of 13 years.  On each of the charges of attempted murder,  you are sentenced to  imprisonment  for  a  term  of eight years.  On the count of arson, you are sentenced to imprisonment for a term of four  years.   On the charge of threatening to do grievous  bodily harm,  you  are sentenced to a term of one year.  All of those terms are to be served concurrently.

[21]     Richard Pearce and Nicholas Edgarton, I now come to your part in this tragic affair.   You each participated in this by actually throwing the Molotov cocktails which caused the fire which led to Joan Betti’s death.   Your roles in the events leading up to the throwing of the Molotov cocktails differed.  You, Richard Pearce, were the first to become involved in the plan.  You participated in the purchase of

the  materials  and  in  the manufacture  of  the  Molotov  cocktails.    You,  Nicholas Edgarton, became involved only at a very late stage, shortly before you left the house on your mission.   You each maintained that you were not aware that there was anyone in the house, and that you had been told by Carol Clayton that there would be nobody home.  The jury’s verdicts indicate that that was accepted, and I proceed on that basis. But, even with your understanding that there would be nobody at home, your actions involved your participation in serious offending.   While you did not know that there was anyone in the house, you ought reasonably to have had regard to that possibility, and of course you ought not to have been committing the serious offence which on any view of it you were committing.

[22]     Your involvement has arisen from a misplaced sense of chivalry or loyalty. Richard Pearce, your involvement came from your wish to protect and assist Carol Clayton, who had shown some kindness towards  you  and was  a  grandmotherly figure to you.  Nicholas Edgarton, you became involved out of loyalty to Richard Pearce and perhaps also to your partner at the time, Toni-Leigh Morecraft.  In both cases, your feelings were misguided.  You both should have known better.  Rather than assist Ms Clayton in her plan, you should have discouraged her from it.  Her pre-sentence report records that the social message that Ms Clayton took from her co-offenders   even   entertaining   her   idea   made   this   offending   more   likely. Ms Clayton  agreed  that  there  may  have  been  a  very  different  result  had  you challenged her behaviour.   I consider that there is much force in these comments. You must each bear  your share of responsibility for having participated in  this enterprise.   Had you shown a degree of maturity and responsibility, these tragic events may not have occurred.  Ms Clayton took advantage of you, but you failed to resist that as you should have done.

[23]     Richard Pearce, I deal first with you.  You are 22 years of age.  You have 27 previous convictions for relatively minor offending which are relevant only to the extent that they demonstrate a willingness to offend and a willingness to use violence on occasion.   Your pre-sentence report indicates that you accept responsibility for your actions and do not seek to deflect it on to others.  You are extremely remorseful and regret what you have done, and you have expressed that remorse.   You demonstrate  insight  into  your  offending  and  empathise  with  the  victims.    The

contributing factors noted in your report are alcohol abuse, your choice of associates, violence propensity and the rush you felt when contemplating the offending.  You are assessed at having a moderate to high level of motivation to address these factors and a medium risk of re-offending.  You have support from your family, in particular your mother.   You have responded positively to your present situation.   There is potential for you to take this as an opportunity to make positive changes to your life. Comments  in  your  report  suggest  that  you  may  be  motivated  to  do  this. Rehabilitation is an important aspect of the sentencing process in your case.

[24]     Having regard to the nature of the offending and your role in it, I must assess a starting point for you.   The lead charge is that of manslaughter.   Cases of manslaughter vary widely and fixing the appropriate starting point requires a careful consideration of the circumstances.  The Crown submits that there are a number of aggravating features, including unlawful entry into a dwelling, the harm resulting from the offending, the degree of premeditation and your previous convictions.  I do not regard your previous convictions as an aggravating feature.  The Crown refers to the features of actual fire-bombing, an attack by night, ignorance of whether the house was occupied, danger to life, preparation and premeditation and the use of more than one Molotov cocktail.   The Crown submits that a starting point of 11 years is appropriate and that a minimum non-parole period  should  be  imposed. Counsel for the Crown has referred to a number of cases in making that submission. Having regard to all of the circumstances, and having reviewed the cases to which counsel has referred, and making my own assessment, I consider that a starting point less than that submitted by the Crown is appropriate.  I consider that a starting point of nine years is appropriate.

[25]     Dealing  with  your  personal  circumstances,  I  find  no  aggravating  factors which would require an uplift to that starting point.  There are a number of potential mitigating features which I must consider.   The first is your acknowledgement of responsibility.    You  admitted  your  participation  when  arrested.    Further,  you indicated a willingness to plead guilty to manslaughter prior to the first trial.  That plea was not accepted.  The Crown has discussed the legal principles which apply in circumstances such as this, and your counsel has referred to this aspect also.   My view is that this case falls within the category of pleas for which credit should be

given.  You were prepared to plead guilty to manslaughter on the factual basis which the jury eventually accepted, so that the offer of a guilty plea has been vindicated by the verdict, although the Crown was entitled to seek a murder verdict.  I consider that you should receive a credit equivalent to that which would have been applicable had you been sentenced for manslaughter on a plea of guilty entered at the commencement of the first trial.   Another factor to be taken into account is your remorse.  You demonstrated remorse immediately you became aware that Joan Betti had died, and have maintained that, including in a letter to the Betti family.  Your relative youth is a factor to be taken into account, and a small discount is appropriate to  reflect  that  essentially because of  the  nature  of  your relationship  with  Carol Clayton, which reflects your youthfulness.   I consider that to reflect all these mitigating factors a discount of two years from the starting point I have identified is appropriate.  That leaves a final sentence of seven years.

[26]     The second count is that of arson.  The criminality involved in that has been taken into account in assessing the manslaughter count, and no addition to that sentence is required to reflect that offence.

[27]     The Crown seeks a minimum non-parole period to reflect the gravity of your offending.  I may impose a minimum period which is longer than the usual minimum period if satisfied that that period is insufficient for the purposes of holding you accountable for the harm done to the victim and the community, denouncing the conduct in which you were involved, deterring you or others from committing the same or a similar offence and protecting the community from you.   The sentence which I have imposed will carry a substantial minimum period.  I consider that that normal period will adequately reflect the purposes and that an additional minimum period is not required.

[28]     Accordingly, on the count of manslaughter you are sentenced to a term of seven years’ imprisonment.  On the count of arson, you are sentenced to a term of four years’ imprisonment.  Those terms are to be served concurrently.

[29]     Nicholas Edgarton, your part in the offending is similar to that of Richard

Pearce, although you became involved only at a later stage.  I consider that a slightly

lower starting point is required to reflect the circumstances of your offending.   I adopt a starting point of eight years.  In your case, too, that starting point reflects the total criminality involved in both counts.

[30]     As to your personal circumstances, you are 21 years of age and have nine previous convictions, for driving offences and for property and dishonesty offences. You have no previous convictions involving violence.  I regard the offending as out of character and not as indicating a general propensity for violence.   Your pre- sentence  report  describes  you  as  genuinely remorseful  and  highly  motivated  to address the causes of your offending.  Your associates are identified as a key issue in the report, and in the references provided for you.  I consider that that is an important factor contributing to the offending, and one which you must address in the interests of your rehabilitation.  You have expressed your remorse, including doing so in a letter to the Betti family, and in a letter to me.   I accept the genuineness of those expressions of remorse.  A large number of references have been provided for you through your counsel.  Several of those note that you lacked a father figure since you were very young and those close to you consider that this has contributed to your recent antisocial behaviour.   The references emphasise the positive change in you over the period you have spent in custody, your realistic appraisal of your current situation and express a high likelihood that you will succeed in life after serving this sentence.  Those references are encouraging, both for what they say about you, and in showing the degree of support that is likely to be available to you in efforts to achieve your rehabilitation.  You also have an opportunity to react in a positive way to your situation, and to use the shock of imprisonment as a catalyst to address your way of life.  It is in your interests to do that.  The level of support which has been shown to you should help to provide you with the motivation to achieve this.  In your case, too, rehabilitation is an important purpose of sentencing.

[31]     There are several mitigating factors in your case:

First, your acknowledgement of responsibility.   You too were prepared to plead guilty to manslaughter at the first trial, and I consider that you too are entitled to credit for that;

Second,  your previous  record,  while  not  blameless,  is  to  some  degree  a mitigating factor, having regard to the seriousness of this offending;

Third, you too have expressed remorse, and I accept the genuineness of that;

and

Fourth, your age.  For you also a small discount is appropriate to reflect that. In all the circumstances, I consider that a reduction from the starting point

which I have identified of eight years, to reflect these mitigating factors, is two years.  That leaves a final sentence of six years.

[32]     In your case, too, I do not consider that the imposition of a longer minimum period is required.

[33]     On the count of manslaughter, you are sentenced to imprisonment for a term of six years.  On the count of arson, you are sentenced to imprisonment for a term of four years.  Both terms are to be served concurrently.

Addendum

[34]     The foregoing are my sentencing notes as delivered in court.  This addendum is appropriate, to clarify one point which may become important to those responsible for the prisoners, but which may not otherwise be readily apparent.   The count of arson to which each of the prisoners pleaded guilty was laid under s 267(1)(b) of the Crimes Act 1961.   The original charge had been laid under s 267(1)(a), but the indictment was amended before plea.

“A D MacKenzie J”