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…

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.

Continue reading R v Kinghorn

Details

AGLC: R v Kinghorn [2013] NZHC 3216
Case: [2013] NZHC 3216
Decision Date: 3 December 2013

CaseChat Overview and Summary

The defendant in this case, Matthew Kinghorn, was convicted of murdering Anne Elizabeth McCullough. The case before the Court was to determine the minimum term of imprisonment that should be imposed as a condition of Kinghorn's life imprisonment sentence. The Crown argued that the minimum term should be at least 17 years, citing factors such as the murder occurring in the course of another serious offence, the victim's vulnerability, and the high level of brutality, cruelty, depravity, or callousness exhibited. The defence, on the other hand, argued for a lower minimum term of 14 to 15 years. The Court found that while the murder may have had sexual overtones and the victim was vulnerable, the evidence was insufficient to conclude that the murder occurred in the course of another serious offence. The Court also found that the level of brutality, cruelty, depravity, or callousness did not reach the threshold required by the Sentencing Act. The Court ultimately determined a starting point of 15 years for the minimum term of imprisonment, taking into account the aggravating and mitigating factors. After considering the defendant's genuine remorse and willingness to participate in restorative justice, the Court reduced the minimum term by two years, resulting in a final minimum term of 13 years. The defendant will be eligible for parole consideration after serving 13 years of his life imprisonment sentence.

Orders