R v McKenzie

[2009] NZCA 169

IN THE COURT OF APPEAL OF NEW ZEALAND

CA791/2008
[2009] NZCA 169

THE QUEEN

v

HAYDEN BRENT MCKENZIE

Hearing:30 April 2009

Court:Robertson, Chisholm and Gendall JJ

Counsel:G J King for Appellant

A Markham for Crown

Judgment:5 May 2009 at 2.30 pm

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       This appeal involves a narrow point, namely the contention that a minimum period of 21 years’ imprisonment imposed as part of a sentence of life imprisonment after the appellant pleaded guilty to a count of murder, was manifestly excessive.

[2]       Simon France J, who imposed the sentence, said:

[3]       The relevant facts can be briefly stated, but lose none of their appalling quality as a consequence.  Mr McKenzie was associated with a white supremacist group.  On the day in question, he and his two co-accused were out driving.  They saw Mr Kim hitch-hiking.  They picked him up, drove to a remote area and killed him.  It is alleged Mr Kim was choked to death by the co-accused while Mr McKenzie pinned his arms.  He was unknown to them.

[4]       Afterwards Mr Kim’s body was hidden.  Mr McKenzie and his co-accused later returned and buried him.  All his clothing and belongings were burned.  The sole reason for killing Mr Kim was that he was Asian.

The appeal issues

[3]       The appellant contends that the 21 years’ minimum non-parole period was manifestly excessive because it did not adequately reflect:

(a)       a guilty plea;

(b)co-operation with authorities;

(c)remorse;

(d)custodial status; and

(e)the totality principle.

[4]       It was common ground at sentencing, and before us, that s 104 of the Sentencing Act 2002 applied.  A minimum period of 17 years had to be imposed.  It was accepted that a combination of relevant factors can justify a higher starting point: R v Baker [2007] NZCA 277. But it is argued for the appellant that no more than 17 years was required in the circumstances of the case, particularly as, at the time of sentence, Mr McKenzie had already been in custody in excess of four years for another murder.

Background

[5]       In June 2005, Mr McKenzie and another were sentenced to life imprisonment with an automatic minimum non-parole period of ten years.  Section 104 of the Sentencing Act 2002 did not apply to a murder committed in 1999. 

[6]       In June 2008, Mr McKenzie and another (“X”) were charged with the murder of Mr Kim.  Another person (“U”) was charged with being an accessory after the fact to murder.  Both Mr McKenzie and X declined to speak to the police about the matter, or to assist in the recovery of Mr Kim’s body.

[7]       In the course of a preliminary hearing on 14 October 2008, Mr McKenzie entered a plea of guilty and later assisted the police to locate Mr Kim’s body.  This was after the receipt of a letter from the Crown Solicitor at Christchurch which relevantly said:

(a)The Crown would be making application under the Sentencing Act 2002 that a minimum term of imprisonment be imposed.  The Crown view is that s104 clearly applies.

(b)We have reviewed the sentencing authorities and have been unable to locate any decision dealing with similar circumstances such as arise in this case.

…

(d)In Mr McKenzie’s case the Court will no doubt want to look at the totality of the offending in respect of this and his former conviction.

(e)He of course has already served part of his current life sentence.  The Crown agrees that he would be entitled to real credit for a plea of guilty at this point in the proceedings and in addition, should he disclose to the Police where the victim’s body is buried, he would also be entitled to significant credit for that matter.

(f)In all the circumstances of this case, the Crown would accept a minimum term of 17 years.

(g)At the end of the day, however, sentencing is a matter for the Judge and the Crown is not able to guarantee any final end point.

[8]       X is due to face trial for the murder in June.  U has been granted immunity and will be called as a Crown witness at that trial.

The High Court approach to the minimum non-parole period

[9]       Simon France J said:

[16]     I turn to the appropriate length of the minimum non-parole period. I consider the correct approach is to identify the right starting point for this murder and then make adjustments.  The Crown suggests a figure of 22-23 years but accepts factors exist that will reduce it to seventeen years.  Counsel for Mr McKenzie agrees with that end point and submits it is always preferable to allow earlier intervention. He accepts the wide impact the murder has had – most importantly on Mr Kim’s family, but also on New Zealand’s pride in its reputation as a country that welcomes visitors to its shores.  In his typically balanced submissions, Mr King advises that there are issues in both murders as to the extent of Mr McKenzie’s involvement.  However, I cannot consider the facts of the first death which are not before me and I cannot see in the present depositions any basis on which one would view Mr McKenzie as any less culpable than the co-offender.  Finally Mr King emphasises the need to consider the totality principle.

[17]     There are three aggravating features:

(a)    first, the motive;

(b)second, the fact that it was the second time Mr McKenzie had killed because of his abhorrent beliefs;

(c)   third, the lack of humanity shown to the victim, and his family in how Mr Kim’s body and belongings were treated.  I consider that this third factor is offset by Mr McKenzie’s assistance in finding the body.  With a degree of hesitation, I accept that assistance deserves positive credit, but repeat my observation during sentencing that it is remedying a wrong he had done.  I would tend to regard it as a balancing of the scales but acknowledge the Crown’s role.  In these matters and its position that it is conduct that needs positive recognition.  I also record that Mr King submits that Mr McKenzie’s assistance with locating Mr Kim’s remains reflects Mr McKenzie’s changed outlook.  As regards to that, I consider whether Mr McKenzie has changed is an assessment that will need to be made many years hence.

[10]     The Judge concluded:

[21]     … As best I can assess it, I believe the combination of motive, the fact that this death replicates a murder you committed five years earlier in that it was motivated by the same hatred, and the obvious grave risk you pose to society, means a starting point of twenty-four years is required.

[22]     From that I give you three years credit for a plea entered after depositions, and after you had been exposed by a co-offender.  You could have acknowledged this offending three years earlier when you were charged with the first killing but chose to keep it secret and thereby kept Mr Kim’s family in their state of not knowing what had become of their son, and brother.  That reduction includes credit for assistance with locating Mr Kim.

[23]     That brings the figure to twenty-one years.  You have served four years on the previous murder.  Should that affect the sentence I impose?  The figure of seventeen years accepted by counsel reflects an affirmative answer to that question. However, my task at this point is not to resentence you for both killings.  It is a limited question of whether the appropriate sentence for this murder, when placed alongside time to be served on other offending, produces a total sentence that is excessive for the total offending. If I impose twenty-one years, that will mean you serve twenty-five years at least for the two murders.

[24]     Twenty-five years is a long time, even for two murders.  However, it is not, in my view, too long given the nature of these two murders and given the risk you pose to society.

A ceiling on the sentence

[11]     Somewhat faintly, Mr King made reference to the Crown’s submission in the High Court supporting a 17 year minimum term, but recognised that the Crown letter itself and the submissions made at hearing were explicit that the final assessment was for the Court, not the Crown.  That reality was made clear by this Court in R v Yorke CA261/96 23 October 1996 and a sentencing Court is not bound by Crown submissions as to the proper level of a term of imprisonment.

[12]     If there is a question of unfairness or the misleading of an accused in such circumstances, the reasoning in R v Sipa (2006) 22 CRNZ 978 (SC) would apply and the point would be addressed by an application to vacate the plea rather than any constraint being placed on the sentencing discretion of the Judge.

The starting point in the High Court

[13]     There is no real challenge to the Judge’s assessment of 24 years as a starting point in respect of the total offending.  The crucial difference is whether the four years which have already been spent in custody should be deducted from that, or whether the 21 years should run from the sentencing which, as the Judge noted, in reality means that Mr McKenzie will serve a continuous period of incarceration of not less than 25 years.

[14]     There are mercifully few cases which can be said to be comparative, but the Judge had some before him (as we do):  R v Lundy [2002] 19 CRNZ 574 (CA) which involved the killing of his wife and their young daughter, where this Court increased the minimum period of imprisonment imposed in the High Court from 17 years to 20 years; R v Howse [2003] 3 NZLR 767 where two stepdaughters were each killed by a single stab wound inflicted while they were asleep and the minimum period of imprisonment was reduced from 28 years to 25 years; R v Bell CA80/03 7 August 2003 which involved the deaths of three people and serious injury to a fourth who were bludgeoned with the barrel of a shotgun and one was shot.  There the minimum period of imprisonment was reduced from 33 to 30 years.  A review by this Court of sentences for double homicides in R v Cui CA333/05 28 September 2006, confirms the range more generally.

[15]     Each of those cases involved multiple murders on one occasion, and the perpetrators were sentenced after being found guilty by a jury at trial.  The minimum period of imprisonment in each case was also influenced by background and personal factors, but the range is nonetheless instructive.

[16]     The significant differences in the present case are that there were two murders, five years apart, each motivated by the same perverted perception which created an ongoing risk to the community but with a guilty plea to the second murder charge. 

[17]     In all those circumstances, it could not be said that a 24 year starting point was outside the properly available range.

Factors requiring a discount

[18]     The matters which arise under this heading include the guilty plea, co-operation with authorities and remorse.

[19]     The guilty plea came during the deposition hearing in the face of a strong case, including U, providing powerful evidence as to what had happened with regard to Mr Kim.  In these circumstances a modest allowance for the plea was all that was appropriate.  The plea, and informing the authorities where the body could be found, are argued by Mr King to be tangible demonstrations of remorse and acceptance of responsibility following a change of attitude.

[20]     But Mr McKenzie’s continuing ambivalence is apparent in the probation report.  It raises a question of how genuine his remorse is and how much it is a reflection of his personal dismay at having been caught.  We are satisfied that the three years allowed in respect of these inter-related factors was sufficient.  As this Court noted in R v Williams [2005] 2 NZLR 506 at [79] remorse is “not a factor which can carry great weight in serious murder cases given the importance of deterrence and denunciation in sentencing for this level of offending”.

[21]     The killing of Mr Kim occurred some four years after that of the previous victim, Mr Bambrough.  If there was genuine remorse, Mr McKenzie would have come clean when he was initially apprehended and admitted at the time of the sentencing for the first homicide, his involvement in what was a reasonably recent second killing. 

[22]     It is impossible to view the total circumstances without real concern that this man demonstrates a wanton disregard for humanity as he has embraced extreme bigotry and racism.  The community is entitled to denounce this in strong terms, and to be protected against the consequences of his abhorrent beliefs.

[23]     We do not overlook the fact that Mr McKenzie did eventually direct the authorities to where Mr Kim’s body may be found, but as Simon France J noted, it was more “remedying a wrong” than a positive action.

Custodial status

[24]     Mr King submitted:

The appellant is on the witness protection programme.  Accordingly he can never be contained in a ‘mainstream’ environment.  He is held in segregation, comparable to solitary confinement.  He lives in constant fear that the threats to his life will be actioned.  It is submitted that the learned Sentencing Judge failed to give any recognition to the fact that imprisonment is particularly onerous on this appellant.

[25]     The Crown responded that although there were threats posed by members of the 4^th Reich gang, these are likely to diminish over time, and the appellant’s location within the prison service is of his own desire.  It is submitted that he was not isolated, but free to mix with a substantial number of other inmates who also have a protected status, and are in the same facility.

[26]     We are satisfied that there is nothing under this heading which was not encompassed in the general discount from the starting point, to which reference has already been made.

Totality principle

[27]     As the sentencing Judge acknowledged, 25 years in prison is a lengthy incarceration, but we are satisfied that it is appropriate and necessary in the circumstances.

[28]     The crux of Mr King’s submission was whether the 21 years which the Judge had determined should be imposed (and which we endorse) should have been structured so that it encompassed the period which had already been spent in custody.  That could be achieved by a minimum non-parole period of 17 years on the life sentence imposed in 2008.

[29]     We agree with Simon France J that such an approach was not appropriate.  Each of these killings was callous, wanton and despicable.  The total effective sentence was no more than was needed to reflect the total culpability.

Result

[30]     The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington