R v Eddy
[2014] NZHC 1543
•3 July 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-092-16129 [2014] NZHC 1543
THE QUEEN
v
KARL EDDY
Appearances: N R Williams and J Cairney for the Crown
M Dyhrberg and P Barraclough for the Accused
Sentence:
3 July 2014
SENTENCING NOTES OF ELLIS J
Counsel/Solicitors:
N Williams, Meredith Connell, Auckland
J Cairney, Meredith Connel, AucklandM J Dyhrberg, Barrister, Auckland
P Barraclough, Barrister, Auckland
R v EDDY [2014] NZHC 1543 [3 July 2014]
[1] Mr Eddy you are for sentence today having been found guilty by a jury of murdering Alicia McCallion on 12 December 2012.
[2] The sentence for murder, unless it would be manifestly unjust, is life imprisonment. In your case there is no suggestion that a sentence of life imprisonment would be unjust so that is the sentence that I will be imposing on you. But the question I must decide, and to which counsel’s submissions this morning have been directed, is what minimum period of imprisonment should be imposed as a condition of that sentence. But I emphasise that your sentence will be one of life imprisonment. The minimum term of imprisonment is the term that you must serve before you can be eligible for consideration for parole. It does not fix the term of your sentence.
[3] The minimum period of imprisonment I impose depends in large part upon the facts of the matter and so I need to summarise those first.
The facts
[4] You met Miss McCallion in 2010 and quickly formed a relationship with her. You moved in together and eventually ended up living with her in the flatette attached to her parents’ house in Papakura.
[5] I accept that before 12 December 2012 you did not physically hurt Miss McCallion but you were often angry and aggressive around her, you belittled her and she was scared of you. In November 2012 she had the courage to end the relationship and you moved out of the flatette and in with members of your family.
[6] I think at that point you believed or hoped that Miss McCallion would reconcile with you. In any event you desperately wanted to make things right between you and, to that end, you took steps to get a car and a job. You tried to give her a ring. You talked about attending an anger management course. You made excuses to see her. You texted her frequently. Although Miss McCallion was never rude, the tone and content of her texted replies to you was not encouraging.
[7] As it became clearer and clearer to you that she was not going to take you back, things took a more sinister turn. You engaged in what might be termed low- level stalking behaviour. Using a false name you threatened her on FaceBook.
[8] Things came to a head on 11 December. By then you had learned that you had not been successful in getting a job at Paper Reclaim where Miss McCallion worked. She had defriended you on FaceBook. Your first attempt to get a car had not been successful. You were concerned that she had met someone else. Your benefit was still being paid into her bank account and you could not access it. That evening you tried to get some cannabis to relieve the stress you were feeling but you were unable to.
[9] It is not clear exactly when you decided to kill Miss McCallion and I will come back to that later. The evidence suggests that you did not sleep at all that night, but stayed awake getting more and more worked up. You drove your mother’s car around to the McCallion house shortly after 4 am when you knew that Miss McCallion would probably be up and getting ready for work, but that no one else who lived there would be awake. You did not take your phone with you to Cotton Place but it is highly likely that you did take a knife. You parked your mother’s car in an adjacent street and accessed the property through the orchard rather than through the driveway and front entrance. You did not text or telephone Miss McCallion to tell her that you were coming.
[10] Importantly, there was also evidence that earlier, on the afternoon of 11
December, you had taken steps to create an alternative reality around what you were thinking about. You told your niece that Alicia had texted you and that she was being stalked by someone at work. There was no such text and she was not being stalked by anyone, or rather, anyone other than you. This fiction, of some unknown stalker, was repeated by you after the murder, when you manufactured texts from Alicia’s phone to yours after you killed her and again when you telephoned the McCallions that morning.
[11] It is not clear how you got into the sleep out, but it seems that the dog Snoopy did not bark because he knew you. It also seems that Miss McCallion was already awake and had begun to get ready for work but she was still in her dressing gown.
[12] The forensic evidence suggested that once you were in the main bedroom you punched her across the face and then, no doubt while she was dizzy or stumbling from the blow, grabbed and held her from behind. There were signs of a struggle although it seems it did not go on for long. You were much bigger than she was and she was, no doubt, taken by surprise. As you were holding her you stabbed Miss McCallion’s abdomen several times with a serrated knife. Then you cut her throat, almost from ear to ear. The evidence was that there was at least a double slashing motion – across and back – which would have required very considerable force. Both Miss McCallion’s carotid arteries and her trachea were severed so she could not have cried out. When you let her go she fell forward without even putting her hands out to break her fall; she died almost instantly. Although Miss McCallion’s body would largely have shielded you from the blood spatter you had blood on your hands, which resulted in you leaving your bloody fingerprint on the external door- handle as you pulled it to as you left. As you left her body to be found by her family.
[13] As I have said, you took Miss McCallion’s cell-phone with you and used it to send yourself text messages in a rather amateurish attempt to cover your tracks. Then you threw the phone onto the side of the motorway where it was later located. You also threw the knife out the car window near the Takanini off ramp which is where it was found by Police, after you had told an associate to look for it there some time later. The Crown also suggests that you may have changed your clothes at some point on the way home but that is not something on which I intend to speculate.
[14] A few hours later you called the McCallion home saying you were concerned about Alicia. By that time, Miss McCallion’s mother, Milly, had found her body and the Police were there. You later told Police and others that you had taken a sleeping pill at around 10.30 on the evening of 11 December and had slept right through till about 8 am. But there were no pills missing from the bottle and there was other evidence that clearly indicated that you had been up all night.
Pre-sentence Report
[15] I have read the pre-sentence report. You were not co-operative with the probation officer, who had mostly to rely on information contained on an earlier file. The report writer noted you show no sign of any remorse and appear to be fixated on what you perceive to be a lack of integrity in the Crown evidence and your intention to appeal the jury’s verdict. You are of course entitled to do that although, for what it is worth, my own view is that the evidence against you was overwhelming.
[16] What is particularly troubling, however, is that you expressed no empathy either for Alicia or for her family. Even if you have somehow persuaded yourself that you are not responsible for her death it seems inexplicable that your thoughts and regrets are only for yourself, not for the young woman who has been brutally murdered, a woman that you professed to care for and to love. I have received this morning a one sentence letter from you in which you say you feel for Alicia’s family because Alicia has “past away”. It strikes me as half hearted at best. I find it wholly unconvincing. As Mr Williams said, “Much too little and much too late”.
[17] The report writer notes your 26 year history of offending. Although perhaps not in the majority, this includes convictions for offences involving violence, unlawful possession of a knife and other weapons, threatening to kill or do grievous bodily harm, breaches of a protection order and male assaults female. In March
2011 you were convicted for common assault and sentenced to 15 months intensive supervision. You subsequently breached the conditions of that sentence. The probation officer notes that the failure of this, and previous rehabilitative sentences you have received, indicates a longstanding refusal on your part to take responsibility for your actions, and to lay the blame for your offending elsewhere.
[18] For all of these reasons the probation officer assesses you as presenting a high risk of re-offending.
Victim impact
[19] It is important that I now say something about the impact of Alicia’s murder on her family and friends. I have read their statements and four of them have also
been read in Court today. Although the law refers to such people victims I do not much like that term as it suggests that you, Mr Eddy, have some kind of power over them. You do not. What you did was not powerful; it was weak and it was cowardly.
[20] So although the lives of Milly McCallion, Peter McCallion, Michael and Korrina McCallion and their children, John McCallion, Danielle Anderson, Liz Irving, Tess Davies, Don Davies, and many others have been ripped apart by what you did, as both Korinna and Danielle have said in their statements, you have not broken them. Somehow they are finding the courage to keep going, and to stay together, despite what you did. I am sure that is what Alicia would want.
[21] I am not going to repeat the detail of what else was said in the various statements. Paraphrasing could not do them justice. But I will say that each of them paint a picture of Alicia as a beautiful, kind and loving young woman with huge potential, who lived her life with great vitality and joy. Her garden was her passion and her very real talent. Indeed I have no doubt that Alicia McCallion was the best thing that ever happened to you. You, however, were the worst thing that ever happened to her.
[22] Certain images and words will, I think, never go away. There is Milly’s description during her evidence at trial of how her brain could not process what she saw, when first she discovered her daughter’s body. How she somehow thought that Alicia was asleep face down on the floor and how she put a blanket over her because her legs were so cold. There is what Korinna said this morning about her children, Alicia’s nieces and nephews, pretending to feed cookies to the picture of Alicia on the urn containing her ashes. There is what Peter says about having to bury the blood stained carpet in the garden and even worse, somehow blaming himself for not looking after his daughter better and protecting her from you. That you should have burdened this good man with such an unfair and dreadful load is something that I hope you never forget.
[23] In the end the pain that you have caused the McCallion family and everybody who knew and loved Alicia is really unspeakable. Your anger and hatred exploded
like a bomb tearing apart a family who had previously taken you into their home and generously accepted you as part of it. In return you took from them what they had held most dear.
Minimum Term
[24] I turn now specifically to the issue of the appropriate minimum term. [25] I am required by the Sentencing Act to impose a minimum term that:1
(a) Holds you accountable for the harm done to the victim and the
community by your offending; (b) Denounces your conduct;
(c) Deters you and others from engaging in conduct like that in the future;
and
(d) Protects the community from you.
[26] The Crown, as you have heard, submits that the minimum period of imprisonment should be at least 17 years on the basis that one or more of the factors identified in s 104 of the Sentencing Act apply. Mr Williams says that the murder involved calculated or lengthy planning, it involved unlawful entry into or unlawful presence in, a dwelling place and it was committed with a high level of brutality, cruelty, depravity or callousness.
[27] But Ms Dyhrberg says that this is not a s 104 case. She accepts that there is no argument to be made in favour of an MPI of less than 10 years but says that an MPI of 14 years would be sufficient to reflect the aggravating features that are present here.
[28] Before I deal with these arguments it is important to explain that I am not bound to take any particular view of the facts, and can take any interpretation that I
1 Sentencing Act 2002, s 103(2).
consider is appropriate. The standard to which facts must be proved, if they are to be taken into account in sentencing, is detailed in s 24 of the Act. What that means is that:
(a) I can accept as proved any fact that was disclosed by the evidence at the trial; and
(b) I must accept as proved all facts, express or implied, that are essential to the finding of guilt; and
(c)There is no obligation on me to take the interpretation most favourable to you, providing that any finding I make is not inconsistent with the jury's verdict; but
(d) the Crown is required to prove beyond reasonable doubt the existence of any aggravating fact that is disputed.
[29] That last point assumes some significance in your case.
Calculated or lengthy planning?
[30] The first aggravating matter that is relied on by the Crown is its contention that Ms McCallion’s murder involved calculated or lengthy planning.
[31] I talked about this earlier, when I reviewed the facts. I accept that any specific planning was not particularly lengthy, although Wendy Gillespie’s evidence and the conversation you had with Jayden Bowen about killing Milly McCallion two weeks before Alicia’s death suggests to me that the idea of murder had been on your mind for some time.
[32] I also accept that the actual planning process was not sophisticated but in my view there was some calculation involved. I accept that there are alternative possible explanations for your decision to leave your own phone at home and for your obtaining the sleeping pills. I also accept that the exact provenance of the murder weapon, the knife, is not known. But I do consider that the evidence relating to the
earlier creation by you of the false alternative “stalking by a stranger” story which you later played out by sending texts from Alicia’s phone is clear evidence of a degree of premeditation on your part.
[33] In the end, however, and by a very narrow margin, I do not consider that the evidence establishes beyond reasonable doubt lengthy or calculated planning of the sort that means that s 104 applies. The idea of calculated planning has been said to involve working out detail in advance to a level which I do not think existed in your case.2 Although I think that you may well have had violence and even murder on your mind for some time, I also think trying to obtain cannabis on the night of the
11th was to some extent your own attempt to deal with these thoughts. I think it was
only when you could not, and when in the early hours of the morning you began to dwell on the failure of your relationship, your failure over the job, the car, your frustration about not having access to money that things boiled over and you finally decided to act.
Unlawful entry or presence?
[34] In terms of whether your entry into or presence in Alicia’s home was unlawful, it is not clear how you gained entry into the sleep out early in the morning of 12 December. The possibilities are that you still had a key, that the door was unlocked and you let yourself in, or, conceivably, that Miss McCallion herself let you in. Although the last possibility I consider to be the most unlikely, maybe she did so either out of pity or in some misguided attempt to stop you waking up her family.
[35] If Miss McCallion did not let you in, then your presence in the sleep out would clearly have been unlawful. But as I have just said, the evidence does not enable me to be sure about that. And although the Crown also submitted that any implied licence to enter granted by Miss McCallion would necessarily have been revoked once you started to attack her (and your presence would at that point have become unlawful) I do not propose to approach the matter in that rather technical
way.
2 R v Christison [2013] NZHC 2813; Desai v R [2012] NZCA 534 at [52]-[62].
[36] Rather, the reality that I think needs to be reflected in any MPI that I impose is that even if Miss McCallion did for some reason let you into the flat it would have been plain beyond doubt to you before you left your house and upon your arrival at hers that you were not welcome there. You knew that she had defriended you on- line, that she was scared of you and that she did not want to get back together with you. You knew that she did not want to see you any more, let alone while she was by herself in her flat at 4 o’clock in the morning. Moreover, as Mr Williams said this morning, the law looks particularly severely on crimes that occur within the sanctity of people’s homes and the wider impact of the fact that you killed Alicia at the family home has been made graphically clear in the victim impact statements that have been read today.
Brutality, cruelty or callousness
[37] Although the facts are somewhat clearer in relation to the third aggravating feature relied on by the Crown, their classification is not all together straightforward. That is because all murders are to some degree brutal and callous and trying to place any particular act of murderous violence on a continuum, or to compare it with other acts of killing seems to risk somehow being seen as minimising the horror of the case in hand.
[38] In the present case I am in no doubt that the way in which you killed Miss McCallion was indeed brutal. As I have said you punched her so she could not fight back, you stabbed her and then you viciously cut her throat. Indeed the brutality of the act was such that, as your lawyer acknowledged at trial there could never be any question that the person responsible for it intended to kill Miss McCallion. And there was callousness, too, in leaving her body where it fell, in the certain knowledge that it would be found by a member of her family.
[39] Whether, however, your brutality and callousness were of a degree high enough to trigger s 104 is more difficult. Again I emphasise that my saying this is in no way intended to diminish the awfulness of what you did. But there are a number of cases involving murders of a similar kind where s 104 was not regarded as being engaged. Those cases involving killing with a knife where the 17 year MPI has been
triggered have tended to involve additional acts of torture or cruelty, the presence of children or cases where death has occurred less quickly.3 On balance, I do not think this murder, awful as it was, is quite in that class.
Other relevant factors
[40] Although I have concluded that by a very narrow margin s 104 is not triggered, all the things I have just talked about remain very serious aggravating factors that must be reflected in your sentence. Taking only those matters (which all go to the gravity of your offending, rather than your personal circumstances, which I will come to in a minute) together with the very very great loss and harm that you have caused, I consider that a minimum term of at least 15 years imprisonment would be justified.
[41] Having reached that point I am also required to take into account other relevant matters that are personal to you, and the particular need to deter you from acting in a similar way in the future, and to protect the community in the future from you.
[42] Two things are important in those respects. The first of these relates to your past conduct. As Mr Williams pointed out, and Ms Dyhrberg acknowledges, you have a considerable number of previous convictions spanning your entire adult life. I have already mentioned the most relevant of these. Although none of your previous convictions come anywhere near the gravity of the present one, they disclose a disturbing pattern of anger and aggression which was also very clear from the evidence given at your trial.
[43] Your previous convictions also give rise to the separate point made by the writer of the pre-sentence report, namely that you have tended to be non-compliant with the community based sentences that you have received. As the report writer indicated this perhaps underscores your sense of entitlement or inability to accept
responsibility for any wrongdoing.
3 For example, Dawood v R [2013] NZCA 381; Thurgood v R [2012] NZCA 23; and R v Zhou HC Auckland CRI-2005-092-10395, 13 October 2006.
[44] These are further matters of particular concern for the Court today, because they indicate that you are person who resorts to violence when you become angry and that your ability to justify your behaviour to yourself suggests that some of the normal checks and balances that stop people acting on their feelings of anger are missing in your case.
[45] I consider that the minimum term of imprisonment that the Court imposes on you will need to take those factors into account for two reasons. First, in order to deter you from engaging in similar conduct in the future and secondly it needs to reflect the fact that the community will remain at high risk from you if and when you are released. That likelihood is expressly acknowledged in the probation report, as I have said. It will also no doubt be given full weight if and when the parole authorities come to consider any application by you for parole.
[46] Having regard to those factors, I consider that an uplift of two years is required so that a minimum term of imprisonment of 17 years is justified. That end result is also in my view consistent with my conclusion that there were three s 104 factors squarely in play in your case and that it was only by a very narrow margin that I have found that, individually, they could not be made out.
[47] Mr Eddy, if you could please stand now.
[48] So that is it Mr Eddy. I hope that in time you will come to acknowledge what a truly dreadful thing it is that you have done and will stop playing games in your head to avoid taking responsibility for it. For the murder of Alicia McCallion I sentence you to life imprisonment and I fix a minimum term of imprisonment of 17 years. You will not be eligible for parole until you have served 17 years.
[49] Take him down.
Rebecca Ellis J
11