Mr Kinghorn pleaded guilty to the murder of Mrs Anne McCullough. On 3 December 2013 he was sentenced by Rodney Hansen J in the High Court at New Plymouth to life imprisonment with a minimum term of imprisonment of 13 years.[1]
The Solicitor-General seeks leave to appeal against that sentence on the ground that in the circumstances of this particular case, s 104(1)(d), or in the alternative s 104(1)(e), of the Sentencing Act 2002 was engaged, thereby necessitating as a matter of law a minimum term of imprisonment of 17 years, unless that would be manifestly unjust.
Counsel for the appellant, Ms Laracy, accepts it would be manifestly unjust to impose a minimum period of imprisonment of 17 years in this case, given the relevant mitigating factors, particularly the early guilty plea. Given that this is a Solicitor-General appeal, she argues the minimum non-parole period should have been 15 years.
Mr Hannam responsibly accepts that given a distinct issue of law is involved this is a proper case for leave. Leave to appeal is granted.
The undisputed facts
The sentencing in the High Court was to be preceded by a disputed facts hearing. However counsel for the Crown and the defence felt able to provide the sentencing Judge with an extensive 19 page “Summary of the Evidence” to avoid such a hearing. For reasons we will come to shortly, this process has proved problematic.
Mr Kinghorn spent the evening of 19 October 2012 drinking with friends and associates at various locations in New Plymouth. He drove a distinctive purple Holden Commodore car. He parted company with his associates around 8 am on Saturday 20 October 2012. He was subsequently seen driving in the direction of his house. Thereafter he was seen driving at various points in New Plymouth. Around noon, he was again seen in the vicinity of his home. He then went to an ATM machine and checked his account balance. At about 12.30 pm he went to Nauti Nik Naks, an adult shop in New Plymouth. There he purchased a tube of lubricant, a bottle of “Fetish” leather cleaner (which can be used as a muscle relaxant or inhaled as a stimulant) and a packet of “Dr Feelgood” party pills containing four tablets, which are used for their stimulant effect.
Thereafter Mr Kinghorn was seen driving out of New Plymouth, though in the interim he may have returned home. He passed the deceased Mrs McCullough, who was on…
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.
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Details
AGLC
R v Kinghorn [2014] NZCA 168
Case
[2014] NZCA 168
Decision Date
CaseChat Overview and Summary
In the Court of Appeal of New Zealand, the Crown, represented by the Solicitor-General, appealed against the sentence imposed on Matthew David James Kinghorn by Rodney Hansen J in the High Court. Kinghorn was sentenced to life imprisonment with a minimum term of 13 years for the murder of Anne McCullough. The Crown argued that the minimum non-parole period should have been 17 years, as the murder was committed in the course of another serious offence, namely a sexual assault. The Court of Appeal found that the Crown had failed to establish that the murder was committed in the course of another serious offence. They held that there was insufficient evidence to infer that Kinghorn had intended to commit a sexual offence against Mrs McCullough. The Court of Appeal also rejected the Crown's alternative argument that the murder was committed with a high level of brutality or callousness.
The Court of Appeal dismissed the appeal and upheld the original sentence imposed by the High Court. They granted leave to appeal against the sentence, but ultimately found that the sentencing judge had not erred in his decision. The Court of Appeal found that the Crown had failed to prove the necessary facts to establish that the murder was committed in the course of another serious offence or with a high level of brutality or callousness. Therefore, the original sentence of life imprisonment with a minimum non-parole period of 13 years was upheld.