R v McLaughlin

[2013] NZHC 2625

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-009-013240 [2013] NZHC 2625

REGINA

v

JEREMY GEORGE EDWARD McLAUGHLIN

Hearing:

9 October 2013

Appearances:

B M Stanaway and K B Bell for the Crown

M I Sewell and A C Kelland for Mr McLaughlin

Judgment:

9 October 2013

SENTENCING REMARKS OF PANCKHURST J

Life imprisonment

[1]      Mr McLaughlin could you stand up please.

[2] In April of this year you were found guilty by the verdict of a jury of the murder of Jade Bayliss. I remanded you for the preparation of reports and as a result your sentencing has been considerably delayed until today.

[3] At the outset I propose to deal with the sentence of life imprisonment. I do so because it is the primary sentence for the crime of murder. It carries two important consequences. Firstly, if you are ever released at all it will be because the Parole Board is satisfied you no longer pose a risk to the community. And even then, you will remain subject to recall on account of any conduct indicating an emergence of risk.

[4]  Without doubt your crime warrants life imprisonment and I hereby sentence you to life imprisonment.

[5] I turn to the further issues: what  minimum  period  of  imprisonment  is necessary in your case, or whether as the Crown has submitted you should be made ineligible for parole. Before I do so, it is necessary to refer to the facts of your case, the impact of your crime upon the Bayliss family and others, and your personal history and circumstances. That will take a little time and you may sit down until I say otherwise.

The facts:

[6] At the commencement of your trial you entered belated pleas of guilty to the charges of burglary and arson, but you of course maintained a plea of not guilty in relation to the murder. Despite the verdict of the jury you maintain your innocence. You even told the report writers that you wanted the police “to do their job”. You wanted them to conduct “an adequate investigation”, rather than charge you “without evidence”.

[7] You faced overwhelming evidence in relation to both the burglary and the arson. Indeed, you said to the three report writers that you were angry with Jade’s mother because she had ended her relationship with you. You said that the burglary was committed out of revenge, for her perceived actions and because you maintained items of your property remained at the Bayliss home. You even said you felt entitled to commit the burglary. In relation to the arson you used the word that you enjoyed setting light to Mrs Bayliss’s bed. Mr McLaughlin, I find the notion that you went into the house twice, committed the burglary and then the arson, but that you did not also murder Jade to be simply fatuous.

[8] There are three aspects of the Crown case which I will briefly mention to explain why I have said this. Firstly, the timeline relating to that day is highly informative. On Thursday 10 November 2011 you were seen parked in Barrington Street for about two and a half hours. You were a few houses away from number 63, the home of the Bayliss family. At about 10.20 am you repositioned your car in the driveway and entered the house.  You acknowledged as much at trial.  At 10.38 am

you were at a service station in Milton Street, captured on closed circuit TV. Although previously you had been without money, by then you had a number of $20 notes which you used to purchase petrol. Your station wagon was full of items that had been taken in the burglary.

[9] Unbeknown to you, within minutes of your leaving, about 10 minutes of your leaving number 63, two gardeners arrived at the property. They parked a distinctive vehicle and trailer in the driveway. They spent the next two hours working in the back garden. The house was secure; they observed no activity within the house, nor anyone coming to or from the house. They did not leave until about 12.50 pm. At that time you were at a service station in Opawa purchasing petrol and a lighter to return to number 63. Indeed you arrived there very soon after 1.00 pm, stole further items, a lawn mower and a bicycle, and then entered the house where you poured petrol in several locations before setting fire to the property. At 1.24 pm the alarm was raised as the house was ablaze.

[10] I am satisfied that you killed Jade soon after you entered the house at 10.20 am that morning. You entered by the back door. The probability is that Jade was at the front of the house in her bedroom. She either disturbed you, or vice-versa. No doubt, you overcame any resistance she could muster with ease, and then proceeded to strangle her with a ligature. The pathologist confirmed at trial that she died of asphyxiation. Murderous intent was obviously present because socks were stuffed into her mouth to prevent her breathing, had she still be alive. This young girl was left lying on the floor in her bedroom.

[11] Mr McLaughlin there were two narrow windows of 10 minutes or so, after you left the property and before the gardeners arrived, and then before you returned after their departure. But, it is not credible that in either of those brief periods some other intruder entered number 63 Barrington Street and committed a murder for no apparent reason.  If this sequence is not enough, there is further evidence.

[12] Shortly after leaving the house on the first occasion you were shown on security footage at two pawn shops selling items of property stolen from the Bayliss home.  For this you were paid the somewhat paltry sum of a little over $700.  And

then, at approximately 12.15 pm, you arrived at Riccarton Mall. You were intent upon purchasing two remote controls so that you could sell two television sets. You left the mall after 15 minutes or so, again your departure captured on security cameras. Minutes later, a wallet was located in the carpark. To whom did it belong, Jade Bayliss.  In my view, that was no coincidence.

[13] Lastly, a sample was taken from under one of Jade’s fingernails following her death. DNA emanating from you was found within that sample. I am confident that the jury accepted the obvious explanation, namely that in the course of a struggle that DNA deposit clung to Jade’s fingernail from which it was removed before the analysis by an ESR scientist.

[14] Mr McLaughlin, far from there being an absence of evidence implicating you, this is one of the most compelling cases I have experienced in my years in these Courts. The police’s attention to detail was meticulous. In particular, the reconstruction of your movements on the morning, much of it from security cameras, was so complete as to leave you no option but to plead guilty to the charges of burglary and arson. And, as I have just endeavoured to explain, the Crown case in relation to murder was equally strong, indeed as Mr Stanaway said, overwhelming.

[15] Your refusal to acknowledge the obvious is very disturbing. So too was the experience the jury and I had in seeing the efficient and emotionless way in which you acted that morning, immediately after you had taken this young girl’s life. It was chilling to see your demeanour during the day and indeed that evening when you were interviewed by the police.

The impact upon victims

[16] Inevitably the impact of your offending on others has been profound. The grief caused to Jade’s parents was plain to see when Mrs Bayliss read her victim impact statement this morning, and equally when the victim impact statement of Jade’s father was read by Mr Stanaway. I have read similar statements from Jade’s two younger siblings, her grandparents, a close school friend and two teachers from her high school.  Unsurprisingly the taking of the life of a 13 year old – a life of such

promise, and in such dreadful circumstances has taken an enormous toll on all of these people.

Personal circumstances

[17] Your personal history and circumstances are highly relevant to the further decisions which I must make. I note that you turn 36 years of age in a few days time. You were born in Christchurch but your family shifted to Perth when you were still a child. You were raised and educated there.

[18] In 1995, when you had just turned 18 years you were involved in a very serious attack. You were in the company of two companions, one aged 19, the other 16 years. Using a car you picked up two even younger people, who were to become your victims, from a bus stop. Somewhat later at a park, one of the two got into the driver’s seat of the car as if intending to drive away. He was set upon by the oldest member of your group. He was punched, kicked and even hit with a cricket bat. You introduced the cricket bat, taking it from the rear windowsill of the car. At some point the second victim intervened. He too was beaten. There was then a lull for a time, but then the violence resumed. Your older companion used the vehicle to run over the victims as they lay on the ground.

[19] One aged 14 years died from his injuries, the other of similar age sustained serious injuries including permanent brain damage. You and the others were charged with murder and causing grievous bodily harm. You were found guilty by a jury of manslaughter and of the grievous bodily harm offence.

[20] I have read the sentencing remarks of the Judge. He regarded you and your older companion as equally culpable. You were each sentenced to 12 years imprisonment on the lead offence. The younger offender received a much more lenient sentence on a count of his age and lesser involvement.

[21] I note that you served six years of that sentence before, in 2001, you were deported back to New Zealand. You have been in Christchurch since then, while other members of your family have remained in Western Australia.

[22] In 2005 you incurred a further conviction, this occasion for burglary. You were then employed as a security guard. You deactivated a client’s alarm and entered the client’s home. You stole items to a value of a little over $2,000 and I note, endeavoured to dispose of at least one item at a pawn shop. You  were sentenced in the District Court to eight months imprisonment. Again, I have read the sentencing notes and pre-sentence report prepared at that time. One noteworthy feature is that despite your plea of guilty to the burglary, you subsequently denied responsibility for it. You asserted that a colleague had sold the items to you for a good price.

[23] The writer of the pre-sentence report considered that you  displayed  an inability to accept responsibility for your actions, that you lacked empathy for others and were unlikely to benefit from community based sentencing options.

[24] Your next convictions of course, are the ones upon which you appear for sentence today. I have a wealth of material about you. It includes eight references supplied through your counsel Ms Sewell. These are from relatives, friends, work colleagues and even a fellow prisoner who you have met since you have been in prison. Each of the writers speaks well of you based on their various contacts and dealings.

[25] I have as well the three reports which have already been referred to, a pre- sentence report, a psychiatric report and a psychological report. I also of course have the benefit of having presided at your trial, during which I saw you in the witness box and, as I have already noted, I watched the interview conducted with you on the night of the murder.

[26] The three reports I have found of the utmost assistance. In large measure they confirm impressions which I formed as I observed you over the several days of your trial. Importantly, the psychiatrist confirms that you do not have any psychiatric history, nor any evidence of mental illness. However, both she and the psychologist have recorded a consistent range of psychological or character traits which they found through their dealings with you.

[27] On the surface you presented as calm, polite and articulate - consistent with the assessments in the references from the various lay people to whom I referred a moment ago.  But at another level the experts found that a different picture emerged. I cannot do justice to their reports in a few sentences. Instead I intend to quote a number of descriptions used by them. They include words and phrases such as glib, unemotional, superficial, manipulative, lacking empathy, self-focussed, vengeful, minimising  and  having  a   tendency  to   blame   others.   And,   I   should   add Mr McLaughlin, there is a significant degree of consistency in the views reached by the two experts.

[28] Both had been asked by me to assess the level of future risk which you may pose back in the community, and whether there is hope for your rehabilitation. Testing was tried, but neither woman was confident that your responses provided reliable evidence of the future probabilities. My appreciation is that in your case they consider the best indicator of the future is to be found in your past. As one of the report writers put it “twice you have acted in an extremely violent manner, without warning and in the result you have taken two young lives”. Hence, you are assessed to be at medium or even high risk of further violent offending. Nor, are the prospects of change optimistic, not the least because of your inability to accept responsibility for your actions as demonstrated so graphically by your continued denial of the murder.

Section 103(2A)

[29] The Crown has raised whether you should serve the sentence of life imprisonment without parole. Since mid-2010 this has been an available option. The sentence of life imprisonment without parole has not as yet been imposed in New Zealand. I am not aware whether it has been sought in any previous cases. The test is whether no minimum term of imprisonment, regardless of duration, would be sufficient to satisfy one or more of the relevant sentencing purposes. They have been mentioned by Mr Stanaway being accountability, denunciation, deterrence and protection of the community. I must be satisfied at least one of those purposes can be met in no other way than by life imprisonment without parole.

[30] The Crown submissions have also drawn attention to the criteria prescribed in the United Kingdom in relation to a similar life without parole provision. The criteria include, for example, multiple killings involving substantial premeditation or sadistic conduct, child murder following abduction or as a result of sexual motivation, and murder after a previous like conviction.

[31] As Mr Stanaway noted, these criteria represent a different approach to the one adopted by the legislature in this country. I am bound by the more open textured test adopted in s 103(2A). Counsel has also referred me to some of the worst recent New Zealand murder cases, those that have attracted the longest minimum terms, and suggested that these provide a guide as to when the new section might appropriately be invoked. Both the circumstances of the offending and of the offender are relevant. Here the Crown submits that the offending alone may not be sufficient, but that when your personal circumstances are brought to account, they elevate the case to the point when life without parole should be considered.  I agree.

[32] But, I am also of the opinion that cases which meet the statutory test will be clear cases, will be obvious, and I am not satisfied that this is so in your case. Mr McLaughlin, I regard you as on the brink of meeting the test, but not quite crossing the line. Accordingly, I rather see your case as one for a very stringent minimum term of imprisonment, and I turn to the assessment of that term.

Minimum period of imprisonment

[33] As I noted earlier, there can be no question that section 104 of the Sentencing Act is met, requiring a term of imprisonment of at least 17 years. These aggravating features apply – this was a murder committed to avoid your detection for burglary. It involved unlawful entry into a private home. It was also committed in the course of another serious offence. Jade in my view was undoubtedly vulnerable on account of age and her lone circumstances at the relevant time. There is, I acknowledge, an element of overlap in relation to two of these factors. Nonetheless this was a brutal and senseless murder, committed on account of your determination to avoid responsibility for your actions.

[34] I must also consider your personal circumstances, in particular, your previous convictions for manslaughter, causing grievous bodily harm and burglary. Your previous record is a serious aggravating feature in itself. Most importantly, it confirms the risk you pose to the community. The cases of Bell[1] and Howse[2] provide guidance in setting the minimum term for murder. Skilling,[3] another case referred to in submissions is a more comparable case, save that your previous history is even

worse than his.

[1] R v Bell CA80/03, 7August 2003.

[2] R v Howse [2003] 3 NZLR 767.

[3] Skilling v R [2011] NZCA 462.

[35]     Could you stand up please.

Conclusion

[36] Mr McLaughlin there are no mitigating factors to your offending. I have concluded that the appropriate minimum term in your case is one of 23 years imprisonment. This means you will be almost 60 before parole is even an option. This term, I consider, is sufficient to hold you to account, to denounce your offending and to meet the purpose of deterrence. At the expiry of 23 years, your life sentence will still apply, unless you satisfy the Parole Board you no longer pose a risk to the community.

[37]   In relation, to the associated crimes of burglary and arson, you are sentenced to four and eight years respectively.

[38] Finally, the three strike legislation applies to you. This of course is your first strike. Although it might appear an empty exercise, I am required to give you a formal warning. If you are released and ever commit a further serious violent offence, you will serve the resulting sentence without parole. If ever convicted of murder again, you will certainly be sentenced to life without parole. The full terms of this warning will be supplied to you in writing.

[39]     You may stand down.

Solicitors:

B M Stanaway, Christchurch K B Bell, Christchurch

M I Sewell, Christchurch A C Kelland, Christchurch