R v McConachie

[2020] NZHC 1887

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-85-1983

[2020] NZHC 1887

THE QUEEN

v

BRIAN DAVID MCCONACHIE

Hearing:

31 July 2020

Counsel:

G J Burston and A F Oliver for Crown

V C Nisbet and N Bond for Mr McConachie

Sentencing:

31 July 2020

SENTENCING REMARKS OF SIMON FRANCE J

[1]                 Mr McConachie pleaded guilty to the murder of Ms Irina Scantee in the early evening of Saturday, 17 August 2019. It is submitted on his behalf that a sentence of imprisonment less than life imprisonment is appropriate in the circumstances.1

Facts

[2]                 Mr McConachie and the victim had been in a relationship which had ended. Mr McConachie was struggling to cope with the end of the relationship. He was at times suicidal over it, and at other times angry about it.

[3]                 On 9 August 2019 Mr McConachie presented to mental health services with what was assessed as acute distress secondary to a relationship breakdown. He was

1      Sentencing Act 2002, s 102.

R v MCCONACHIE [2020] NZHC 1887 [31 July 2020]

diagnosed with acute adjustment disorder with suicidal ideations. Mr McConachie was upset and talked of not being able to live without the victim. He expressed thoughts of suicide and was said to present as morose, tearful and slow to talk. He was, however, able to give a clear, simple account of his thinking.

[4]                 Mr McConachie remained in care within a hospital facility until his release on 12 August. At that stage, nursing staff described him as stable in mood, with an occasional low mood. He was assessed by a psychiatrist on the day of discharge. He reported himself as feeling better, and having no further thoughts of self-harm. He made arrangements to move to a boarding house on the Kāpiti Coast. He was not on any medication at the time of discharge. He was contacted by a psychiatric nurse on 13 August by phone. At that time he said he was safe, and he was referred to mental health services in the area for follow-up. That was his last contact with mental health services prior to the offending.

[5]                 On the day of the killing, at about 8 pm, Mr McConachie drove to a boarding house in Paraparaumu Beach where the victim was residing. He arranged to speak with the victim in his car, and she was seen leaving the boarding house dressed in her bedtime attire. The victim commented to a witness that she was going to speak to the defendant briefly. Her clothing, and the fact that she had left her personal belongings including her wallet and cell phone in the bedroom, indicated that she did not intend to go anywhere.

[6]                 As it happens, she got into Mr McConachie’s car and he drove them a distance down the main street, before parking. Either during the journey or at that time, he began to strangle the victim. She was able to get out of the car but was followed by the defendant. The victim walked onto a property through the front gate in order to get away from Mr McConachie, and she tried to close the gate. The events were witnessed by three people who were in a neighbouring property. They all approached the victim to assist her.

[7]                 As they approached, the victim said “Help, he is trying to kill me.” The witnesses could see red marks around her neck.

[8]                 Mr McConachie said to the witnesses that the victim had been attacking him, and that she had a knife. He showed them a cut to his hand. He then walked away from her towards his vehicle. The witnesses believed the matter was over but, in fact, Mr McConachie had gone to his car to get a knife. He held it behind his back and returned to the group.

[9]                 Mr McConachie walked up to the victim, placed her in a head lock with her back against his chest. While in that position he used the knife to cut her throat. She fell to the ground and in that position, Mr McConachie continued to cut at her with the knife. The incident was witnessed by the three people who had been present throughout.

[10]              Mr McConachie left the scene in his car. He sent a number of text messages admitting to what he had done. He drove for a distance, at the end of which he cut his own throat and wrists before ringing the police to tell them what he had done.

Statements

[11]              Two victim impact statements are filed by witnesses to the incident. It is clear, as one would expect, that they have been profoundly affected by what they saw. It is, of course, to be hoped that over time their memories of the event will diminish, but some time after the event they remain profoundly affected.

[12]              The Court was provided with a statement from Mr McConachie’s brother. It conveys his family’s condolences to those of Ms Scantee. Other than that, it is a sustained criticism of mental health services. It also comments on the impact the family believes imprisonment would have on Mr McConachie. The basis on which it is filed for a sentencing is somewhat unclear to me, but I note that I have read it.

The defendant

[13]              I take this summary of the defendant from the most recent report provided to the Court by Dr Barry-Walsh, a consultant forensic psychiatrist, supplemented by earlier assessments. Mr McConachie, now aged 49, was the youngest of eight children. He was brought up by his mother in Foxton, and met his father only later in

life. It is said that he found school difficult, and generally has been unable to obtain or maintain work. He has been on a benefit for most of his life. Mr McConachie’s mother died in 2000. Mr McConachie was married for several years, and was more recently in a relationship with the victim of the present offence for about 11 months before they separated.

[14]              The first record of Mr McConachie having contact with mental health services is October 2004. He was at that time assessed as having been suffering from chronic low-grade depression for a number of years and to have poorly developed social skills. He was at the time living with his sister.

[15]              He was next referred to mental health services by his general practitioner in June 2007. There were again issues of depression, this time accompanied by thoughts of self-harm. The possibility was flagged that he may have a disorder on the autistic spectrum. He was referred to an occupational therapist, but failed to attend several offered appointments and was discharged from the service in November 2007.

[16]              Mr McConachie’s next referral to mental health services was again by his general practitioner, in October 2010. The reasons were depressed mood, suicidal ideation and loneliness.  He was visited at home by the mental health crisis team.   Mr McConachie reported interest in a woman who was not reciprocating his interest, and  associated  feelings  of  jealousy.   There   was  further  phone  contact  with   Mr McConachie over the next few days. Eventually, however, his mood improved and there was no further contact.

[17]              The next referral was on 17 July 2014. It was initiated by Mr McConachie’s brother. Mr McConachie had apparently broken up with his girlfriend and had thoughts  of  suicide.  Anxiety  was   identified   as   a   significant   problem   and Mr McConachie was referred to a community health team. It appears that there may have been a brief reconciliation, because there was a further referral in September 2014 for the same reason of a break-up with his partner. Mr McConachie reported problems of low energy, concentration and poor memory. He described episodes of irritability and short-temperedness. The treating physician  was  of  the  view  that Mr McConachie’s difficulties were socially driven. He leaned towards a diagnosis of

adjustment disorder, noting a background of learning difficulties and possible impairment of intellectual function.

[18]              In August 2015 there was contact with regards to persisting mood fluctuations. Mr McConachie had by then been prescribed a mood stabiliser which he was not taking regularly. A  difficulty  with  his  partner  again  seemed  to  be  the  trigger. Mr McConachie was referred back to his general practitioner. However, in September 2015 he presented at an emergency department having allegedly threatened to harm himself with a knife. However, he left prior to assessment.

[19]              In January 2016 Mr McConachie was brought into mental health services by his wife of four months. The concern was a pattern of angry moods and conflicts with others. He was having difficulty in coping with stresses. A diagnosis of depression was rejected, but he was, however, prescribed mood stabiliser and anti-depressants.

[20]              In May and then June of the same year Mr McConachie’s wife again called crisis services concerning Mr McConachie’s moods, and his propensity to throw things. It was noted he had, at her request, gone to live with his sister because she felt unsafe. Again, in September of that year concerns were raised and contact was made with Mr McConachie. His wife spoke of him being jealous and angry. Then in October there was a referral following an apparent overdose. The context was again relationship problems and his suspicions concerning infidelity. Attempts at follow-up were again unsuccessful due to Mr McConachie’s unwillingness to make contact.

[21]              Crisis services next saw Mr McConachie in April 2017. It appeared that there were issues with his marriage, and periods of separation. This was, in turn, causing distress and it was observed that he was struggling to cope with the apparent break-up of the relationship.

[22]              The next contact was in June 2018 where there had been a dispute with his wife. The end result of this period of referral was a prescription for an anti-depressant, and for a low dose of a sedating anti-psychotic drug. It was noted there were anger issues, but Mr McConachie was not considered to be suicidal or depressed. The final contact was that which occurred in August 2019 and which I had earlier described.

Current situation

[23]              In order to assist with sentencing, when Mr McConachie pleaded guilty I requested a number of reports be prepared.2 To explain the reason for this, the Sentencing Act 2002 provides that a person convicted of murder “must” be sentenced to imprisonment for life, unless the circumstances of the offence and the offender make a sentence of imprisonment for life manifestly unjust.3 If the sentence of life imprisonment is imposed, the Court must at the same time impose a minimum period of imprisonment which cannot be less than 10 years.4

[24]              There are also limited options that do not involve imposing a sentence at all. If the circumstances support it, the Court may order that an offender be instead treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992,5 or be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.6 Alternatively, the Court may still sentence the offender to a term of imprisonment, but order that rather than going to prison the person be detained as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act or be detained in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act.7

[25]              Before detailing the two reports I have received, I note that there have been a number of assessments of Mr McConachie since the time he was arrested on the present offending, as well those stemming from the various interactions with mental health services earlier described. Mr McConachie has never been assessed as having major mental illness, but there has been a consistent pattern of temporary low mood swings and adjustment difficulties in response to life stresses.

[26]                 In March 2020 Dr Barry-Walsh described him as a man with limited intellectual functioning, possible autistic spectrum traits and a long-term history of

2      Pursuant to the Criminal Procedure (Mentally Impaired Persons) Act 2003, s 38; and Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, part 3.

3      Section 102(1).

4      Section 103(2).

5      Criminal Procedure (Mentally Impaired Persons) Act, ss 34(1)(b)(i) and 36.

6      Sections 34(1)(b)(ii) and 37.

7      Section 34(1)(a).

difficulty in coping. Following his arrest there had been a marked deterioration in his condition reflecting the anxiety and perceived hopelessness of his situation. Dr Barry- Walsh observed that since then, Mr McConachie was improving but remained a highly anxious man overwhelmed by his current circumstances and constantly seeking reassurance as he struggled to cope.

[27]              I turn now to the two most recent reports. The first is from Ms Louisa Medlicott, a registered clinical psychologist. She interviewed Mr McConachie and reviewed his file.   She noted that at the time of the interview (on 12 June 2020)     Mr McConachie did not present any symptoms of disorder of thought, mood, perception, volition, or cognition, nor did he report any such symptoms.

[28]              Ms Medlicott undertook  various  functioning  assessments.  She  assessed  Mr McConachie as having a low IQ and some impairment in his working memory processes. The level of impairment was less than an earlier test in March 2020 conducted  by  a  different  practitioner.   Ms  Medlicott  considers  it  likely  that   Mr McConachie’s  currently  lesser  levels  of  anxiety   explain   the   difference.  Ms Medlicott was of the view that there may be a specific learning disability such as dyslexia, but this was not formally assessed. However, overall Mr McConachie was not considered to meet the diagnosis of an intellectual disability. This makes detention under the Intellectual Disability (Compulsory Care and Rehabilitation) Act an unavailable option.8

[29]              The other report is an updated report from Dr Barry-Walsh, completed on 29 July 2020. He notes that Mr McConachie is relatively stable although still struggling. Dr Barry-Walsh observed Mr McConachie had coped poorly with his time in prison on remand and that prison is an environment which, due to his particular set of circumstances, he will continue to struggle with greatly. He is not well engaged in any vocational activities or therapeutic endeavours which would assist him with improvement, although Dr Barry-Walsh suspects that once he is sentenced and his future is confirmed, that area may improve. He will require ongoing management and

8      Sections 7 and 8.

planning, with the likelihood that return to prison may again cause relapses that require readmission to hospital.

Submissions

[30]              The Crown submits that the appropriate sentencing outcome is a sentence of life imprisonment with  a minimum period of imprisonment in the range of 10 to    12 years. It is submitted that Mr McConachie’s circumstances do not satisfy the requirements for a sentence of less than life imprisonment, namely that such a sentence be manifestly unjust. It is noted that on the basis of authorities what is required is an overall assessment of both the offence and the offender and any aggravating and mitigating factors relevant to both.9 The use of “manifest” means that the injustice must be clear. It is a test that has been described as “stringent”.10

[31]              Mr Burston referred to comments in R v O’Brien, where it was observed that low intellectual capacity which is unrelated to the mental elements of the offence is seldom likely to justify departure from the statutory presumption.11 It is further submitted that the authorities show that public safety concerns are relevant to the exercise of discretion under s 102.12

[32]              In relation to the term of the minimum period of imprisonment, the Crown notes the use of a weapon, the obvious premeditation, the fact that it was an attack to the head, and the circumstances of the offending which occurred in plain view of a number of members of the public as aggravating factors.  The Crown accepts that  Mr McConachie has a reduced IQ and a diagnosed history of mood issues. These are relevant to the appropriate lengths of the minimum term. However, the Crown submits the lack of clear connection to the particular offending limits the amount of credit that should be given.

[33]              On Mr McConachie’s behalf, Mr Nisbet submits that there should be no gloss put on the statutory test in s 102. Terms such as “exceptional circumstances” are not

9      R v Rawiri HC Auckland T/014047, 16 September 2002; and R v Rapira [2003] 3 NZLR 794 (CA).

10     R v Te Wini [2013] NZCA 201 at [56].

11     R v O’Brien (2003) 20 CRNZ 572 at [36].

12     R v Mayes [2004] 1 NZLR 71 (CA); and R v Morris [2012] NZHC 616.

correct, the test being manifestly unjust. The primary focus must be on the defendant’s culpability. He notes that although not  diagnosed  with  an  intellectual disability, Mr McConachie was not much above the cut-off. He has limited cognitive ability.

[34]              Mr Nisbet submits there are similarities with R v Reid, where the defendant had murdered his 84-year-old neighbour by strangling her.13 He was diagnosed to be suffering from major depression accompanied by psychotic delusions. The motivation for the murder arose solely from his mental illness and he had no previous convictions or history of violence. Matters relied upon here are that Mr McConachie was in the grip of a mental health crisis. His inability to cope is a product of his limited intellectual/cognitive ability, manifesting a life-long history of difficulties in his adjustment. He has a diagnosis of anxiety disorder.

[35]              It is also submitted that the impact of imprisonment on Mr McConachie is a relevant factor. Dr Barry-Walsh makes it plain that imprisonment will be a disproportionately severe experience for Mr McConachie.14 Mr Nisbet draws support from the observations of Mr McConachie’s family, reported in the submission by his brother that I have referred to earlier, in which they note his regression in custody. The family are fearful that imprisonment will result in further deterioration. Mr Nisbet notes   the   attempt   at   suicide   following   the   offending   and    submits    that Mr McConachie’s mental health makes a life sentence manifestly unjust. Mr Nisbet submits a sentence of 10 years’ imprisonment with no minimum term is the appropriate outcome.

[36]              Mr Nisbet advises that from his interactions with him, Mr McConachie is remorseful, but his mental health state and limited capacities affect his ability to articulate it.

Assessment

[37]              The assessment of whether a finite sentence should be imposed must be made in the context of the purposes and principles identified in ss 7 and 8 of the Sentencing Act, and the aggravating and mitigating factors under s 9.

13     R v Reid HC Auckland CRI-2008-090-2203, 4 February 2011

14     Sentencing Act 2002, s 8(h).

[38]The Court of Appeal in R v Cunnard provided the following guidance:15

…Parliament has mandated that life imprisonment should be the standard sentencing response to a conviction for murder, reflecting society's recognition of the sanctity of human life and its condemnation of anybody who wrongfully takes another life. Life imprisonment is the ultimate penal sanction available, reinforcing the purposes of deterrence, denunciation, protection of society and accountability.

[17]   However, Parliament has deliberately empowered High Court judges to impose a lesser sentence according to the all-encompassing criterion of manifest injustice. Its terms authorise a sentencing judge to take into account other relevant sentencing purposes, in particular aggravating and mitigating factors relating to the offence and offender. Of relevance to this appeal are: the gravity of the offending and the degree of the offender's culpability; the general desirability of consistency with appropriate sentencing levels; an offender's limited involvement in the offending; and assistance with an offender's rehabilitation and reintegration.

[39]              Looking first at the offending, this was a premeditated brutal murder carried out in full public view. It was undoubtedly the product of an inability to cope with the end of a relationship and the various emotions that have been displayed over the years

– jealousy, suspicion, anger, despair and at times thoughts of suicide. Similar thoughts existed on this occasion, but Mr McConachie decided first to kill the victim before taking his own life.

[40]              Objective evidence from the health professionals is that a few days prior to this event he was in a reasonable shape from a mood viewpoint. It is clear this deteriorated over the intervening period. However, I do not consider this significantly reduces his culpability for this brutal killing. It was a killing motivated by extreme feelings of anger and jealousy.16 These are unfortunately not uncommon characteristics of this type of offending. I understand the need not to pigeon-hole conditions or draw lines that are too bright, but Mr McConachie has neither an intellectual disability nor a diagnosed major mental illness.17 The extent to which his personality traits, and his inability to control how he feels, diminished his culpability is not an exact science but I am satisfied it falls well short of meeting the statutory test of manifest injustice. The

15 R v Cunnard [2014] NZCA 138 at [16]-[17] (footnotes omitted).

16 Mr Burston read out p 6 of the report where Dr Barry-Walsh concludes these were the predominant factors. I accept the conclusions of that paragraph which have influenced me. (This footnote, unlike any others, was read out during the sentencing.)

17     A clear point of distinction from R v Reid, above n 13.

things that drove him to kill the victim were anger and jealousy. He plainly had ideas of suicide, but decided he would also kill the victim. There is little in the reports that would establish a causal link, other than anger and jealousy, to that intention.

[41]              As for the impact of life imprisonment on Mr McConachie, I note there is no suggestion that some term of imprisonment is not the appropriate outcome. It is reasonable to infer that the greatest difficulties for Mr McConachie will be in the initial period of imprisonment, and that is something that is going to happen regardless of the length of sentence. It does not point away from imposing life imprisonment if that otherwise be the correct outcome.

[42]              I do not consider that a sentence less than life would meet the purposes of sentencing.18 It would fail to reflect the premeditated nature of this brutal killing in broad daylight before members of the public. Further, while Mr McConachie’s mood disorders had not to date manifested in violent conduct, they have on this occasion. The circumstances can only cause great concern about the risk he poses to the public. It may be that if circumstances change and he becomes more receptive to treatment, these risks can be ameliorated. However, the protections afforded by a life imprisonment sentence are appropriately engaged in this case.

[43]              Concerning the minimum term of imprisonment, I have no hesitation concluding that the minimum available period of 10 years is appropriate. This recognises the difficulties that Mr McConachie will experience in prison. Whilst a longer term is possible given the nature of the offending including the planning, the documented history of engagement with mental health services and the impacts on him of serving time in prison point to the minimum term being the appropriate outcome. This is an example of not drawing too bright a line - while his struggles do not make a life sentence incorrect, they are relevant to the length of any minimum sentence.

18     Sections 7 and 8.

Sentence

[44]              Mr McConachie, I sentence you to a sentence of life imprisonment for murder with a minimum period of imprisonment of 10 years.

Simon France J

Solicitors:

Crown Solicitor’s Office, Wellington for Crown