R v McLean

[2017] NZHC 3183

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2017-025-000812 [2017] NZHC 3183

THE QUEEN

v

BENJAMIN PETER MCLEAN

Hearing:	18 December 2017
Appearances:	R W Donnelly for the Crown W N Dawkins and G S Williamson for the Defendant
Judgment:	18 December 2017

SENTENCING NOTES OF DUNNINGHAM J

[1]      Benjamin Peter McLean, you are here for sentence having pleaded guilty to the charge of murdering your wife, Verity Ann McLean, and to the attempted murder of her partner, Garry William Duggan.

Background facts

[2]      The relevant background facts are set out in full in the summary of facts, and that was read when you entered your pleas.  So, for the purpose of today’s sentencing I am only going to give a brief summary.   You were married to Mrs McLean for

18 years and you have three children with her, who were aged 9, 16 and 19 at the

time of her death. The second victim, Mr Duggan, was a long-time family friend.

R v MCLEAN [2017] NZHC 3183 [18 December 2017]

[3]      The two victims began an affair in December 2016 and on 5 April 2017, your wife  told  you  that  she  was  leaving  you  and  she  moved  into  a  house  on Otepuni Avenue with Mr Duggan.

[4]      In the early evening of 25 April 2017, you travelled to the victims’ home by bicycle.  You had with you various equipment including a cut down .22 rifle with all identifying marks, apart from the maker’s name ground off it, a New Zealand Police portable radio programmed to listen to the Invercargill Police communications channel, a pair of ASP brand handcuffs such as are used by the New Zealand Police Armed Offenders Squad, scissors, towelling and rubber gloves.

[5]      Mrs McLean was alone at the house when you arrived.  Evidence from the scene examination suggests she was restrained by you.  She also sustained extensive bruising to her face, arms and legs.  Thirty-nine visible bruises were identified which the pathologist says was consistent with a fight occurring prior to her death.  Finally, you shot her with the cut down .22 rifle by placing it under her chin and against her skin as she sat on the couch.  She died from the gunshot wound entering the head and brain.

[6]      Mr Duggan arrived home from work around 8.00 pm and parked his car. You appeared before him and pointed your gun at him.  You fired and hit him in the right upper chest.  You fired again and the second shot hit him in the left forearm.  The two of you engaged in a violent struggle.  Mr Duggan managed to take the rifle off you and smashed it over your head.  This caused the stock to break off.  You then went to your back pack and retrieved a wooden baton from it.   You approached Mr Duggan and hit him on the forehead.  The two of you ended up on the ground with you holding Mr Duggan from behind in a choke hold.  He managed to wrestle the baton from you and began striking you with it until eventually you released your hold.  He then hit you about the knee caps with the baton.  Eventually he forced you to the front gate and you left the property.  At that point, around 8.15 pm, he rang emergency services.

[7]      After fleeing, you telephoned your 16-year-old son and told him what you had done.  You also spoke to your son’s aunt and told her about it too and expressed immediate regret for what you had done.  You then called your 19-year-old daughter and told her what had happened and where you were.   You said to her you had “messed up the family”.  Her boyfriend and his mother met you and took you to the Police Station where you were taken into custody.

[8]      The pre-sentence report reinforces that your behaviour, while extreme, was completely out of character.  You had shown no propensity for violence before this. While it cannot mitigate what you had did, I accept that your actions that night were motivated by a deep sense of betrayal by both your wife and best friend.   I also accept that while what  you did was inexcusable, you  are not at a high risk of reoffending.

Victim impact statements

[9]      The Court has received victim impact statements from Mrs McLean’s mother, father, her twin sister and her younger sister.   There are also statements from her children Hannah and Alex and from a family friend Ms Allan, on behalf of your youngest child.  Finally, of course, there is the victim impact statement from your second victim Mr Garry Duggan.

[10]     It is impossible to read and to hear those victim impact statements and not to realise what a horrendous impact this has had on so many lives.  It is also impossible to hear them and not to realise what a dilemma you have left your children in.  I must say that your children have shown remarkable resilience and compassion in the way they have responded to these events.  However, it is obvious to me, and I believe it is obvious to you now, that they need not have suffered in this way if you had reacted proportionately to what had happened.  Because of what you have done you cannot now be part of their lives.  You are simply not going to be there for them as they transition  into  adulthood  and  establish  their  own  lives.    It  is  for  other  family members to step in and to fill the gap because of their mother’s loss, and your imprisonment.

[11]     It is also impossible not to hear what Mr Duggan has been through without being in awe of his courage in fighting you off on that day and in his frankness in coming to Court today to say just what a devastating impact these events have had on his life.

Submissions

Crown submissions

[12]     The Crown submits that the usual sentence of life imprisonment for murder would not be manifestly unjust and that is acknowledged by your lawyer.1     The primary  issue  for  today’s  sentencing  is  what  minimum  period  of  imprisonment should apply.

[13]     The Crown points to a number of aggravating features of this offending and submits that four of the factors meet the circumstances set out in s 104 of the Sentencing Act.   This  means  you  should  be subject  to  the minimum  period  of imprisonment (MPI) of 17 years. These factors are:

(a)      The murder involved calculated planning.  You cycled to the scene, you took with you a firearm, gloves, ties and other equipment which you used in the course of the offending.  The gun was sawn off and had its serial number and markings removed.  You also had a police radio programmed to listen to police communications which suggests you were trying to avoid detection.

(b)      The  murder  involved  unlawful  entry  into  a  dwelling  place.     It

occurred inside Mr Duggan’s home, where you had no right to be.

(c)       The  murder  was  committed  with  a  high  level  of  callousness.

Mrs McLean  was  killed  by  a  single  gunshot  wound  to  the  head, entering under the chin. The wound suggests that the gun was placed

close to the bare skin.

1      Sentencing Act 2002, s 102(1).

(d)The fact another serious offence occurred is a further factor the Crown says engages s 104.  After murdering Mrs McLean, you attempted to murder Mr Duggan, which in other cases has been held to constitute “exceptional circumstances” for the purpose of that section.2

[14]     Mr Donnelly for the Crown submits that R v Smith, is analogous to the present  case  and  should  result  in  a  starting  point  for  murder  of  an  MPI  of

18 -19 years.3    He says this should then be uplifted for two years for the attempted

murder, based on the approach in R v Scott4 and R v Singh.5

[15]     He then submits that a discount of two years would be sufficient to recognise your lack of previous convictions and your guilty plea.   That would result in a sentence of life imprisonment with an MPI of 18 – 19 years.   Finally, the Crown submits that a concurrent sentence of seven years’ imprisonment on the charge of attempted murder would be appropriate.

Defendant’s submissions

[16]     Your lawyer, Mr Dawkins, takes issue with whether some of the aggravating features relied on by the Crown trigger s 104 are appropriately considered to be such. Nevertheless, he accepts that at least two of the situations set out in s 104 apply. However, he submits that there should be no uplift from 17 years starting point, and he argues that the facts in Smith, which is relied on by the Crown, are far more serious than in your case.

[17]     He also accepts that an uplift of two years is appropriate to recognise the charge of attempted murder.

[18]     From that, he submits that you should receive an allowance of one year for your remorse and previous good character and you should get a two year discount for your prompt guilty plea.   That would reduce the sentence down to an MPI of

16 years, but for the presence of s 104.

2      R v Mason [2012] NZHC 1849 at [43].

3      R v Smith [2013] NZHC 2782.

4      R v Scott [2016] NZHC 290.

5      R v Singh [2015] NZHC 2369.

[19]     Your lawyer then says that the sentence should be reduced because the prison manager has indicated that you may continue to be segregated from other prisoners for another 12 to 18 months, because your former role as a police officer puts you in danger. You have already been segregated for almost eight months while on remand.

[20]     Your lawyer notes that police informants are frequently given substantial discounts due to their vulnerability as sentenced prisoners.  In R v M, Chambers J held  that  this  also  applied  to  prison  officers  who  are  convicted.6     Your  lawyer suggests that here, where you will inevitably be held in solitary confinement for some time, I should take account of that factor.  He says that given that and the other mitigating factors, it would be manifestly unjust to impose a minimum period of imprisonment of 17 years.

Analysis

Does section 104 apply?

[21]     In this case, it is clear that s 104(1) applies.   That means I must impose

17 years, unless I would be satisfied that it would be manifestly unjust to do so.

Should the MPI be more or less than 17 years?

[22]     I accept as the Crown says, that there are a number of aggravating features of your offending, in addition to those which it says engage s 104.

[23]     However, I accept Mr Dawkins’ submissions that Smith that the Crown relies on, was a more serious case than this.   It involved significant planning, including hiding in a rooftop to carry out the crime.  That was more invasive than walking into a house without permission.   In Smith the victim was more vulnerable, she was sleeping and the attack was extremely brutal.  He also tried to disguise the murder.

[24]     However, despite having regard to the other cases discussed in submissions, I

am not persuaded that a starting point of 17 years MPI would be inappropriate.  The various aggravating features of this murder include the degree of planning, the entry

6      R v M HC Rotorua, 11 May 2001 T001096 at [27].

into the dwelling place, the extent of the injuries you caused, the restraint of the victim, the callousness of the killing itself and the horrendous effect this has had on your respective families and friends.  In my view, these warrant a MPI of 17 years.

What increase should apply for the attempted murder?

[25]     I then consider the uplift to take into account the attempted murder.  Here, I think the attempted murder was particularly serious.  You lay in wait for your victim, you were relentless in your attack on him, shooting him twice and then resorting to a baton when he took the firearm off you.  In these circumstances, I consider an uplift to 19 years properly recognises the overall seriousness of the offending.

What discount should be given?

[26]     When s 104 is triggered, mitigating factors do not automatically reduce the MPI to below 17 years.  They can do so if not recognising them would be manifestly unjust, but the standard is high.7

[27]     After the uplift for the attempted murder, the end starting point for MPI is

19 years.   I consider a discount of two years would sufficiently take into account first, your previous good character and your guilty plea and such remorse as that reflects.  In terms of the guilty pleas, I do say the Crown case is compelling, really the sole advantage of the guilty pleas has been to spare family members of the stress of a trial.   I also note that the allowance for guilty pleas in these situations have generally been limited to one or two years.8   So that would bring the sentence down to an MPI of 17 years.

[28]     In this case, your lawyer seeks a further reduction based on the adverse impact of being placed in solitary confinement.  While the Courts recognise that a discount for this can be appropriate, any further discount would take the sentence

below that minimum threshold in s 104.

7      R v Hamilton HC Whangarei T014047, 28 May 2004 at [33].

8      R v Skilling [2011] NZCA 462 at [19].

[29]     I note it is rare that personal mitigating factors will displace the presumption in s 104.9   Keane J, in R v Hamilton, said that the mitigating factors must relate to the offence itself and the aspects which caused it to meet the s 104 threshold.  Therefore, even  though  the  adverse  impact  of  solitary  confinement  and  other  personal mitigating factors might otherwise result in a discount, at best I consider it would be a year (taking the MPI to 16 years).  That is not a sufficient disparity in sentence, in my view, to hold that imposing an MPI of 17 years to be manifestly unjust.

Sentence

[30]     Mr McLean would you please stand.

[31]     Mr McLean on the charge of murder I sentence you to life imprisonment, with an MPI of 17 years.  On the charge of attempted murder I sentence you to a concurrent sentence of seven years’ imprisonment.

[32]     Please stand down.

Solicitors:

Preston Russell Law, Invercargill

Bill Dawkins, Bill Dawkins Law, Invercargill

9      R v Chow HC Auckland CRI-2006-032-356, 15 February 2007 at [17], confirmed by Chow v R

[2013] NZCA 360.