R v Kinghorn

[2013] NZHC 3216

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-043-2657 [2013] NZHC 3216

THE QUEEN

v

MATTHEW KINGHORN

Hearing:                   3 December 2013

Counsel:                  CE Clarke and JM Marinovich for Crown

JC Hannam for Prisoner

Sentence:                 3 December 2013

SENTENCING NOTES OF RODNEY HANSEN J

Solicitors:           Crown Solicitors, New Plymouth

Hannam & Co, New Plymouth

R v KINGHORN [2013] NZHC 3216 [3 December 2013]

Introduction

[1]      Mr Kinghorn, you appear for sentence having pleaded guilty to a charge that on 20 October 2012 you murdered Anne Elizabeth McCullough.

[2]     The sentence for murder, unless it would be manifestly unjust, is life imprisonment.  There is no suggestion that a sentence of life imprisonment would be manifestly unjust so that is the sentence that I will be imposing on you. The question that I must consider, and which the submissions that have been made to me by counsel are directed to, is what minimum period of imprisonment should be imposed as a condition of that sentence.   I emphasise that the 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.

Three strikes warning

[3]      As a preliminary matter before I begin to discuss that issue, Mr Kinghorn, it is necessary for me to give you a warning under the three strikes law.   That is normally given at the time a plea of guilty is entered but for logistical reasons that was not possible and I will give it to you now.

[4]      I am now going to give you a warning of the consequences of another serious violence conviction.   You will also be given a written notice outlining these consequences which lists the serious violent offences.  If you are convicted of any serious violent offence 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.  That will be served without parole unless it would be manifestly unjust.  In that event, the judge must sentence you to a minimum term of imprisonment.

[5]      I now come to consider what minimum term of imprisonment should be imposed on  you.   Before I consider in detail the  factors that will bear on that

question, I need to set out the factual background.  This will be a summary of the undisputed facts.   I will discuss some aspects of what happened in greater depth when I come to make my decision on the minimum period of imprisonment to be imposed.

Summary of facts

[6]      The narrative begins at around 4.00 pm on Friday, 19 October 2012 when you joined workmates for a drink after work.  You continued drinking with friends and associates at various locations throughout the evening and overnight.  A distinctive purple Holden Commodore, which you had recently acquired, was used as transport. Sometimes you drove; at other times others drove.   You finally parted from your associates at between 7.30 and 8.00 am on Saturday, 20 October 2012.  You said to one of your companions then, Richard Atkinson, that you were going to “find a chick or find a hook-up” or words to that effect.   He understood you to be referring to somebody that you already knew.

[7]      At about 8.45 am you were seen driving in the direction of your house at

Marino Grove.  There are no further confirmed sightings that morning until at about

11.40 am your Holden was seen in Barrett Road going in the direction of Frankley Road where, more than an hour later, you drove into Mrs McCullough.  Barrett Road and  Frankley Road  both  lead  from  New  Plymouth  into  the  farming  hinterland, converging some distance outside the city.

[8]      The Holden was seen back in the vicinity of your home between 12.00 and

12.20 pm and it is known that at 12.16 pm you went to an ATM machine in St Aubyn Street and checked your bank balance.  Soon afterwards, at 12.29 pm, you went to an adult shop known as Nauti Nik Naks also in St Aubyn Street and purchased three items – a tube of lubricant; a 15 millilitre bottle of “Fetish” leather cleaner which is inhaled as a stimulant and also used as a muscle relaxant; and a pack of “Doctor Feelgood” party pills containing four tablets, also used for their stimulant effect.

[9]      Your car was seen again at around 12.50 pm in the vicinity of your home. You then drove out of New Plymouth along Carrington Road to the point where it intersects   with   Frankley   Road   where   you   turned   right   and   encountered

Mrs McCullough.  She had left her home in Barrett Road at around 12.05 pm  She walked up Barrett Road and into Frankley Road in the direction of the intersection of Frankley Road and Carrington Road.  It appears that at or near the intersection she turned around and retraced her steps.  She was seen walking along the western side of Frankley Road (that is on her lefthand side) before crossing to the eastern side where she walked on the grass verge in the direction of oncoming traffic.

[10]     As you drove down Frankley Road from the intersection with Carrington Road, you passed Mrs McCullough.  At some point you turned your car around to travel   in   the   opposite   direction   towards   the   Carrington   Road   intersection. Mrs McCullough would have been walking towards you as you drove back up the road.  As you approached her, you drove off the road onto the grass verge travelling at a speed of between 27.4 and 38.6 kilometres per hour.   You drove directly at Mrs McCullough without braking, hitting her with the front left passenger side of your car.

[11]     The initial impact would have been to Mrs McCullough’s legs.  Her body was then propelled across the bonnet where her head impacted with the windscreen, shattering it.  She was thrown from the bonnet onto the grass. At the point of impact or shortly afterwards, you started braking, coming to a stop between 10.8 and 17 metres from the point of impact.  You got out of the car, picked up Mrs McCullough and laid her on the back seat of your car.  You then accelerated off the grass verge and back onto the road.

[12]     Mrs McCullough died as a result of high energy impact injuries to her head and brain, spine, chest wall and limbs.  Her injuries were consistent with a standing pedestrian being struck from the front by a moving motor vehicle.  She would have been knocked unconscious on impact and never recovered  consciousness.   It is possible that she could have died within three to five minutes.  The time of death cannot be accurately fixed and she could have survived for up to an hour.   It is probable, however, that survival was at the shorter end of the range.

[13]     After the collision, you were seen driving slowly up Frankley Road towards the Carrington Road intersection, stopping briefly for a period of thirty seconds. You

had the appearance of being agitated.   Some witnesses describe you as moving around in the car, turning around and looking into the back of the car and, as I quote the words of one witness, “kind of jerky”.

[14]     You then turned left into Carrington Road, heading in the direction of New Plymouth.  At one point you veered off the road and clipped a letterbox before zig- zaging up the road.  Further along Carrington Road you turned right into Baker Road which took you through to Mangorei Road where you turned left.  About 500 metres along Mangorei Road you drove into a paddock and parked in a corner close to bush where you could not be seen from the road.  It is estimated that you were there for between six and fifteen minutes.

[15]     Sometime after 1.30 pm you drove out of the paddock, along Mangorei Road and into State Highway 3 before proceeding to the carpark of the scenic attraction known as the Meeting of the Waters.  You abandoned your car there where it was seen by witnesses at about 2.10 pm and the police called.

[16]     You went to a nearby house and asked the occupant to call the police and your mother.  You were described as in an agitated and distressed state.  You made a number of comments indicating an awareness of what you had done – “I’ve done something terrible” among them.   And to the first police officer who arrived you said, “I’ve killed her, I’ve killed her”.

[17]     At the police station you also made admissions to the doctor who examined you.  Among the comments made to him were references to hearing voices in your head and you said “they said fucking hit her so I fucking hit her”.

Victims

[18]     At this point I wish to acknowledge the presence of members of the family and friends of Mrs McCullough and to extend to them my deepest sympathy.  You have heard, Mr Kinghorn, from members of the family of the devastating impact her death has had on them.  I pay my personal tribute to the courage and dignity of those who read their reports here today.   Others had been read to you by your counsel. Mrs McCullough was a devoted wife and mother, much loved by her family and

friends. Your actions have ripped the heart out of this family and left a void that will never be filled.  I can say no more.  The reports speak for themselves.  The words of the victims are the most eloquent testimony to the pain and the loss they have suffered.  The terrible shock of her death and the abiding pain of her loss permeates every page of the reports.

Personal background

[19]     I turn now to the task of evaluating what you did that day for sentencing purposes.  I begin by saying something about your background and personal history. Ultimately, you are sentenced for what you did rather than what you are, but some attempt to understand what possessed you to act as you did is necessary.

[20]     You are a 28-year-old single man.  You were born in Auckland and grew up in Taranaki.  When you were aged between 11 and 13 your parents separated.  You continued to live in Taranaki until you left school at around 15 years of age.  You have no formal qualifications but you have found work in the construction industry. At the time of the offending you were employed as a labourer.  Your employers have described you as a good reliable worker.

[21]     You told the probation officer that you had ongoing relationships with four different women.  All were at different stages.  You have a son and a daughter from two of those relationships. Your daughter was born since you have been in custody.

[22]     You have had serious addiction issues.  You reported to the probation officer that you had a period during which you were addicted to hard drugs.  You claimed to have weaned yourself off by attending a clinic at New Plymouth Hospital and that you had been drug-free until the night of the offending.  However, during this period you told him you substituted alcohol for drugs.

[23]     On the basis of your account to the probation officer, you “relapsed” the night before the offending and, in addition to drinking heavily, you took a cocktail of drugs including methamphetamine, ecstasy, party pills and prescription drugs.  You now say that the probation officer misunderstood you in the sense that the reference to illegal drugs was to your past addiction.  That is certainly consistent with what you

told the psychiatrist who reported on your fitness to plead.  Traces of alcohol and the prescription drug Ritalin were found in your blood and it appears you took the party pills that you bought from the adult shop and probably inhaled the Fetish leather cleaner and perhaps the butane gas that was found at the paddock in Mangorei Road. The latter is something of a matter of speculation but it is certainly clear that after drinking all night you were, as you described it to the probation officer, “out of it” when you decided on the Saturday morning to take your newly acquired car for a “cruise”.  You told the probation officer you remember hitting Mrs McCullough and “freaking out” when you realised you had killed her.  You told him you then placed her in the back seat of the car before driving to the Meeting of the Waters and abandoning the vehicle there.

[24]     There  is  much  to  support  the  view  that  you  were  in  some  kind  of disassociated state when you hit Mrs McCullough.  What you said to the woman you first spoke to and others about hearing voices is consistent with that.  It appears from the psychiatrist’s report that you have a history of alcohol and drug abuse and that on previous occasions you have complained of hallucinations and blackouts following drinking binges.   I note also that there is something of a family history of mental health difficulties.

[25]     It may be that the fact that you had been drinking heavily and mixed alcohol and drugs will have gone some way to explain your behaviour.   It may well have been that lethal combination that unleashed your demons.   I emphasise, however, that drugs and alcohol cannot be offered as an excuse.  The voluntary consumption of alcohol and drugs may help to explain what you did but can never be offered as an excuse for criminal offending.

Minimum period of imprisonment

[26]     I  turn  now  to  address  the  specific  issue  of  what  minimum  term  of imprisonment should be imposed.   The minimum term must be imposed for the purpose of satisfying all or any of the following purposes set out in the Sentencing Act:

(a)       Holding you accountable for the harm done to the victim and the community;

(b)      Denouncing your conduct;

(c)       Deterring  you  and  others  from  committing  the  same  or  similar offences; and

(d)      Protecting the community from you.

[27]   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 following factors identified in s 104 of the Sentencing Act apply - the murder was committed in the course of another serious offence; the victim was particularly vulnerable; and, thirdly, the murder was committed with a high level of brutality, cruelty, depravity or callousness.

[28]     I will deal with each of these in turn.  First, the submission that the murder was committed in the course of another serious offence.

Murder was committed in the course of another serious offence

[29]     As you have heard in the course of Mrs Clarke’s submissions this morning, the Crown had submitted that Mrs McCullough was killed in the course of some form of sexual offending against her.  It is also put on the basis that because there is no evidence of any actual sexual act involving Mrs McCullough, this part of the Sentencing Act may be invoked on the basis that there was an attempt to engage in some form of sexual activity with her which was frustrated by virtue of her not surviving the injuries she suffered.   The Crown theory, as put to me, is that you intended to cause her bodily injury or incapacitate her for the purpose of obtaining some form of sexual gratification.

[30]     In summary, the evidence that the Crown relies on is:

●        First, the fact that before encountering Mrs McCullough you had it in mind to

engage in  some  form  of sexual  activity.   This  can  be inferred  from  the comments you made to your friend, Mr Atkinson, and the purchases made from the adult shop.

●Secondly, there is  reliance on  the relatively low speed  at which  you  hit Mrs McCullough.   The Crown case is that it must be inferred that  your intention was not to kill her but to disable her and then take advantage of her incapacitated state.  The speed you drove at, at this time was contrasted with the higher speeds at which you were travelling before the accident.

●Thirdly, there is the evidence that you actually engaged in sexual activities, either before or after hitting Mrs McCullough.   The Crown contends that, with the assistance of the lubricant and the leather cleaner (used as a muscle relaxant), you inserted the gear stick knob into your anus.  You do not deny that you did so but claim it was not for sexual gratification but to conceal Ritalin pills kept inside the knob.

The Crown case is that this and associated activity probably took place in the paddock at Mangorei Road.  There were items likely to have been used for the   purpose   of   sexual   gratification   in   the   car,   some   near   where Mrs McCullough’s body lay in the back seat.  Other items discarded in the paddock included an unwrapped condom, pornographic magazines and the cardboard packaging for the Doctor Feelgood pills.  The Crown case is that it was while parked in the paddock that you realised Mrs McCullough had died.

●Finally, there are the comments made to Ms Bertram (the woman to whom you first spoke), the police and the police doctor, Dr Dalman, which the Crown  says  are  consistent  with  an  intention  to  offend  sexually  against Mrs McCullough.  They include references implying an inherited propensity to offend sexually.

[31]     Mr Hannam has acknowledged that a sexual motive may have been present which he described in his written submissions as “a low level of sexualised thought relating to the gender and/or appearance of [his] your victim”.  However, he submits

that any such motivation had not developed into an intent to commit a serious sexual offence such as sexual violation.  Mr Hannam points out that there is no evidence that you touched the deceased in any sexual manner.   He sought to explain the presence of various articles found in the car and disposed of in the paddock at Mangorei Road, and of the insertion of the gear knob into your anal cavity, by reference to instructions you have given him which provide alternative explanations to those advanced by the Crown.  What you have told him is not evidence and I do not propose to place any weight on it other than for the purpose of suggesting, by way of submission, alternative available inferences that may be drawn from the undisputed facts.

[32]     So I disregard altogether the possible presence of Ritalin in the gear knob and what you have said about your preferred means of sexual gratification.  I draw what conclusions I can from what you did, what you said and what was found.

[33]     In order to bring your offending within s 104(1)(d), the undisputed facts must establish that you killed Mrs McCullough in the course of committing a serious offence.   In my view, that requires the actual commission of an offence.   It is not enough to show that it was your intention to commit an offence, if given the opportunity.  I accept that it is open to inference that before, and probably after you hit Mrs McCullough, you were preoccupied with achieving some form of sexual gratification.   In all probability, you later did so by the use of the gear knob and possibly  by  masturbation.    I  accept  that  evidence  of  what  was  in  the  car  and discarded  in  the  paddock  is  consistent  with  sexual  activity.    I do  not  overlook Mr Hannam’s submission that there is undisputed evidence of some brief attempts to make phone calls while you were there.  And I accept, as does the Crown, that there is absolutely nothing to indicate that whatever activity took place at Mangorei Road involved Mrs McCullough in any sexual manner.

[34]     I am invited to find that it was while you were at the paddock that you realised Mrs McCullough was dead and that you could no longer exploit her as you intended to.   There is simply insufficient evidence to enable me to reach such a conclusion.  It would involve an impermissible level of speculation.  It may well be that your decision to turn around and drive into Mrs McCullough had its genesis in a

sexual motivation.   The circumstances relied on by the Crown are consistent with such an inference.  And your later statements as to what was in your blood support that hypothesis.  But in the absence of any steps taken to further such an intention, there is simply not the evidential foundation which would permit me to find that Mrs McCullough met her death in the course of sexual offending.   I do not accept Ms Clarke’s submission that there is evidence of an attempted crime which would qualify for the purpose of s 104(1)(d).

[35]     The circumstances with which I am confronted may be contrasted with cases such as R v Reid1 and R v Alder2 where sexual activity had been engaged in prior to the death of the victim.   Similarly, in R v Te Hiko3  there was evidence of sexual activity in the course of the attack, including the removal of the victim’s trousers and underwear.  On the other hand, in cases such as R v Abraham4  and R v Peach5  (to which I will refer later) where there was clear evidence of a sexual motivation but no sexual offending, there was no suggestion that s 104(1)(d) was engaged.

Vulnerability

[36]   I consider next the submission that Mrs McCullough was particularly vulnerable.    That  submission  is  based  on  the  fact  that  when  she  was  killed Mrs McCullough was out exercising on a country road doing exactly what she was entitled to do on a Saturday afternoon and was in no position to defend herself.   I accept entirely that she was vulnerable in the sense of being alone, defenceless and unsuspecting as she enjoyed exercise that Saturday afternoon.  But this is not what the term “vulnerable” in s 104(1)(g) is directed to.   It is directed to the personal attributes of the victim such as age, youth or disability that renders them particularly vulnerable. A pedestrian or other road user who is deliberately targeted is not seen as falling into the category of vulnerable for the purpose of s 104.  I refer to Worrell v

R6 and R v Pukeroa.7

1      R v Reid [2009] NZCA 281.

2      R v Alder CA430/01, 25 June 2002.

3      R v Te Hiko HC Rotorua CRI-2006-077-000921, 18 May 2007.

4      R v Abraham HC Wellington T1942/02, 4 April 2003.

5      R v Peach HC Christchurch CRI-2008-009-013852, 3 December 2009.

6      Worrell v R [2011] NZCA 63 at [87].

7      R v Pukeroa [2013] NZCA 305.

Brutality, cruelty, depravity or callousness

[37]     I am also satisfied that your actions did not reach the high level of brutality, cruelty, depravity or callousness contemplated by s 104(1)(e).    In one sense all murders are brutal, cruel and callous.   But what is required by this part of the Sentencing Act is a much higher level than is normally associated with a homicide. There was certainly a combination of randomness and apparent premeditation8  but the means by which the fatal injuries were inflicted were not of the kind to which subparagraph (e) is directed.  Even cases such as R v Gardner and De Graaf9 and R v

Sila10 in which cars had been deliberately driven into groups of bystanders resulting

in multiple deaths, have not reached this threshold.

[38]     The case referred to me by Mrs Clarke, the case of R v Frost11 is, in my view, clearly distinguishable.  That is a case where the offender came up behind a woman with whom he had a relationship and cut her throat from ear to ear before stabbing her in the back through her heart.  That is not the category of case that I am required to sentence you on.

[39]     Having  said  that,  the  various  factors  that  have  been  highlighted  in  the Crown’s submissions – the sexual overtones, Mrs McCullough’s vulnerability and the way in which she was killed, while they do not bring the offending within s 104 in my opinion, they are highly relevant to determining the minimum term of imprisonment that I should impose.

Conclusion

[40]     My findings simply mean that the minimum period of imprisonment should not presumptively be fixed at 17 years or higher.   I am required instead to assess your  culpability  in  terms  of  s  103  and  then  to  make  such  reductions  as  are

appropriate to take account of mitigating factors.

8      R v Abraham CA139/03, CA330/03, 28 October 2003 at [15].

9      R v Gardner and De Graaff HC Auckland CRI-2006-092-14165, 16 November 2007.

10     R v Sila HC Christchurch CRI-2007-009-006120, 26 June 2008 at [4].

11     R v Frost [2008] NZCA 406.

[41]     The fact that you targeted an innocent and defenceless victim adds to your culpability, as do the somewhat sinister sexual overtones.  Other aggravating factors are the use of the car as a weapon and some degree of premeditation.  The Crown submits that if s 104 does not apply, the gravity of the offending overall warrants a minimum period of imprisonment of 16 years before taking account of mitigating factors.  Your counsel, Mr Hannam, argues for a starting point of somewhat less, at

14 – 15 years.

[42]     Every case must depend on its own facts but it is helpful to consider what the courts have done in other cases involving random attacks on defenceless women with suggestions of a sexual motivation.   In Abraham12  the victim was set upon while walking her dog and strangled with a strap.  Her clothing was interfered with, suggesting a sexual motivation.  The relative youth of the offender appears to have been a factor in fixing the minimum period of imprisonment at 13 years.

[43]     In R v Broughton13 a young Scottish tourist was set upon and brutally beaten in the street while walking home.  Her clothing was also interfered with in a manner that suggested a sexual element. Again, the youth of the offender – 14 years of age – was a major factor.  A minimum period of 12 and a half years imprisonment was imposed.

[44]     Finally,  I derive some  assistance from  a case called Peach14  in which  a woman visiting a house to collect a cat was attacked and strangled.  Injuries to her body suggested a sexual motivation.   The offender had quite significant mental health issues.   A minimum non-parole starting point of 14 and a half years was adopted, reduced by 18 months to take account of a guilty plea entered only shortly before trial.

[45]     The  community  is  rightly  alarmed  and  outraged  by  random  attacks  on innocent and defenceless women.  An apparent sexual motivation is an aggravating factor.    The  minimum  period  of  imprisonment  must  be  pitched  at  a  level  that

appropriately reflects the need to denounce your conduct and hold you accountable,

12     R v Abraham, above n 8.

13     R v Broughton HC Rotorua CRI-2008-269-62, 26 March 2009.

14     R v Peach, above n 5.

as well as to recognise the protective jurisdiction of the Court by deterring you and others from similar offending and ensuring that you are kept out of the community. Having regard to these objectives and also to the decisions of this Court in comparable cases, I have come to the view that the starting point should be one of

15 years.

[46]     You pleaded guilty following a pre-trial ruling which cleared away evidential objections.  Your remorse appears genuine.  What you have said in your letter and through counsel does not come as a convenient belated attempt to obtain credit as the Court sometimes encounters.  You expressed regret immediately after the offending. You have offered to participate in a restorative justice conference.

[47]     You also appear to have some insight into the likely causes of your offending. You appeal as someone who will respond to counselling.  Your risk of reoffending is correspondingly reduced.

[48]     You are entitled, for those reasons, to a discount from the minimum period of imprisonment  that  I  have  identified  as  a  starting  point.    It  is  not  simply  an arithmetical process, as is commonly adopted when a finite term of imprisonment is imposed.  The discount must be consistent with, and promote the relevant purposes

of sentencing.15   Having regard to those purposes and the various factors to which I

have referred, I consider that a reduction of two years to take account of mitigating factors is called for.

[49]     A minimum period of imprisonment of 13 years results.  I say again that this is not the term of imprisonment which you will serve.  The sentence is one of life imprisonment.  You will not, however, be eligible to be considered for parole until you have served a minimum of 13 years.

[50]     If you would now stand up please, Mr Kinghorn, and I will formally impose sentence on you.

15     See R v Walsh (2005) 21 CRNZ 946 (CA) at [26].

Sentence

[51]   On the charge of murdering Mrs McCullough, you are sentenced to imprisonment for life.   You will serve a minimum period of imprisonment of 13 years. You may now stand down.