R v McSweeney

[2007] NZCA 147

IN THE COURT OF APPEAL OF NEW ZEALAND

CA488/06
[2007] NZCA 147

THE QUEEN

v

DAVID CHARLES MCSWEENEY

Hearing:16 April 2007

Court:Glazebrook, Randerson and Ronald Young JJ

Counsel:R P Chambers for Appellant

M D Downs for Crown

Judgment:23 April 2007 at 11am

JUDGMENT OF THE COURT

APPEAL AGAINST SENTENCE DISMISSED.

REASONS OF THE COURT

(Given by Ronald Young J)

[1]       On 28 November 2006 Mr McSweeney was sentenced to life imprisonment, with a minimum period of imprisonment of 15 years, having pleaded guilty to the murder of his wife.  He also pleaded guilty to the assault of his mother-in-law and was sentenced to nine months imprisonment to be served concurrently.

[2]       He appeals against the minimum period of imprisonment submitting it was manifestly excessive because:

(i)        the sentencing Judge gave insufficient credit for his guilty plea;

(ii)the sentencing Judge mistakenly said at sentencing that there was a degree of premeditation in the killing; and

(iii)the minimum period of imprisonment exceeded periods imposed by the courts in similar cases.

Sentencing remarks

[3]       Venning J summarised the facts as follows:

[3]The facts leading to the murder of the deceased can be shortly stated. After an argument during the course of which the deceased was injured, the deceased left your home on 2 April 2006 and went to live with her mother. She applied for and obtained a protection order. The protection order was served on you on 10 April 2006.

[4]Four days later, early on the morning of 14 April 2006 you went to the business premises of Creative Textiles, a business that you and the deceased owned and operated. In a statement you have put to the Court you say you drove past the business, saw the door was open but decided against driving your car into the carpark because you were concerned that if the deceased saw your car she would phone the police. You went home. You got a friend’s car and came back to the business. You parked it in the next door business carpark so it would not be recognised. In your statement you said the deceased saw you and greeted you in quite a friendly manner, that you spoke briefly and then you got angry. You say she cried out to her mother and started screaming and that you just wanted to stop her screaming.

[5]Mr McSweeney you stabbed the deceased and killed her in what can only be described as a frenzied attack. The pathologist’s report notes there were approximately 30 stab wounds to her arms and upper body, the most significant wounds being:

•         defence type wounds to the arms and hands;

•a stab wound to the heart which was the fatal wound inflicted while still alive; and

•a wound to the neck which cut the larynx, trachea and right jugular vein.

[6]While you were attacking the deceased in this way her mother, the other victim that day, heard the deceased screaming, and came into the office area where she saw you hunched over the deceased. The deceased was screaming and struggling. You stood up, turned and confronted the deceased’s mother. You hit her twice. She fell to the ground and was injured. You took her to a lunchroom at the rear of the premises still with the knife in your hand. You told her to stay there.  You then went back to the area to where the deceased was. The deceased’s mother tried to contact the police but you had cut the telephone lines. You then dragged the deceased into the showroom area and covered her body. After you had done this you walked about the premises for over an hour. During this time you cut your own throat and wrist and took a large number of pills. You collapsed. The deceased’s mother eventually managed to escape in her car and went to the police. But before the police arrived your son Stevan found you and discovered the scene.

[7]As a result of your assault on her the deceased’s mother suffered two cracked ribs, a black eye and a cut to her face.

[4]       The Judge, describing the background to the offending, observed that problems between the appellant and his wife seemed to have arisen from the breakdown of their business and ultimately the loss of their home.  By April 2006 the position had so deteriorated between them that the deceased left the family home and obtained a protection order with respect to the appellant.  The Judge in sentencing identified the severe victim impact on the deceased’s mother, who saw some of the attack, as well as the effects on the deceased’s son, who found his mother dead and the appellant, who had attempted to commit suicide, bleeding severely.  The Judge also recounted the grave loss the deceased’s daughter had suffered.

[5]       The Judge acknowledged the appellant’s contribution to society as a police officer and the absence of any previous convictions.  He accepted the Crown submission, conceded by counsel for the appellant, that prima facie s 104 of the Sentencing Act 2002 applied given the brutality of the murder.  The Judge then considered whether imposing a minimum term of imprisonment would be manifestly unjust.  He said:

[24]Applying that test, and bearing in mind the features of the present case, including the background to the offending I have referred to, your very early guilty plea, the fact that you will be an old man by the time you are eligible to apply for parole in any event, and to give you credit for a clean past record and acknowledge your contribution to society by way of public service, the appropriate minimum term would, but for s 104, have been less than 17 years. I consider that in those circumstances to impose 17 years would be manifestly unjust.

[6]       The Judge imposed a minimum period of imprisonment of 15 years to reflect the early guilty plea and the appellant’s past record.

Submissions and discussion

[7]       The appellant submits that the minimum period of imprisonment was manifestly excessive because of the factors mentioned in [2] above.

[8]       Counsel says given that the guilty plea was entered at the earliest opportunity, which illustrated the appellant’s remorse and was also designed to save witnesses’ ordeal in giving evidence, the maximum discount of at least 30 per cent should have been given.  The appellant submitted that this discount was appropriate even where s 104 applied (see R v Williams [2005] 2 NZLR 506 (CA)).

[9]       Counsel’s submissions were based on the proposition that the proper starting point from which to apply the discount was 17 years.  However, beyond the brutality of the killing there were other aggravating features in this case including the deliberate breach of a protection order, the killing, partially at least, in the presence of the deceased’s mother, the assault on the deceased’s mother and her incarceration and severe victim impact.  In addition, a conviction for murder was virtually inevitable on the facts of this case limiting any discount.  This Court in R v Williams in relation to guilty pleas where s 104 applies said:

[73]The discount required for a guilty plea may, however, often be less than in an ordinary case where the statute establishes no presumption that the sentence will be at a particular level. The reason is that departures from the 17 year minimum are only to occur in cases of clear injustice. While the Act requires that a plea of guilty be taken into account, as a mitigating factor, s 104 requires something more than the fact that a particular discount would have been given but for the section to establish a clear injustice. It follows that if a minimum term of 17 years would include a real element of discount for a guilty plea, it would normally be appropriate to impose that term.

[10]     As the Crown observed, allowances for pleas of guilty in the region of one to two years in cases involving s 104 have commonly been given (see R v King HC CHCH CRI 2004-009-001635 8 March 2005; R v L HC AK CRI 2004-44-8643 13 June 2006; R v Baker HC AK CRI-2006-044-5276 15 December 2006; R v Aporo HC PMN CRI 2005/054/2872 20 October 2006; R v Shepherd HC AK CRI 2004‑092-013121 2 November 2006; R v Fenton HC WHA CRI 2006-088-3599 28 February 2007).  Although the Judge in this case did not expressly identify the discount given for the guilty plea it was the only mitigating factor apart from the appellant’s previous good character.  The appellant’s good character alone could not have justified a reduction in the 17 year minimum.

[11]     Given the aggravating features we have identified which could have properly increased the starting sentence beyond 17 years, we think the reduction to 15 years to reflect the plea of guilty and the appellant's previous good character was more than adequate.

[12]     As to the claim that the Judge made a mistake as to the degree of premeditation involved, counsel submitted that there was no evidence from which it could be inferred that the appellant planned the visit to see his wife with the intention of killing her.  The appellant submitted the ferocity of the attack suggested a sudden loss of control rather than a premeditated killing.

[13]     We do not accept counsel’s submissions that the Judge mistakenly took into account any premeditation in the killing of his wife.  The only reference by the Judge to planning in his remarks is when he said:

[19]There are also aggravating features of your offending in this case.  Your actions on 14 April involved a degree of planning as I have outlined. More significantly, however, you went to the business premises knowing that your wife would be there, intending to see her and in deliberate breach of the provisions of the protection order.

[14]     Counsel has misunderstood the Judge’s reference to the “degree of planning”.  The “planning” the Judge referred to was the deception involved in the appellant getting into the business premises before his wife had the chance to call the police ([3]).  The Judge did not, in his sentencing remarks, suggest as counsel claimed, that the appellant “planned the visit with the intention to commit murder”.

[15]     Finally, the appellant submitted that an analysis of three cases of sentences for murder illustrated that this sentence was out of line with those cases. 

[16]     In R v Rajamani CA140/06 20 December 2006 a husband murdered his wife.  The appellant submitted the facts of that case illustrated a high level of culpability “real premeditation and callousness” compared with the current facts. The accused had pleaded not guilty but was convicted of murder.  The appellant was sentenced to a minimum non parole period of 12 years imprisonment.

[17]     In R v Tumahai CA 262/04 26 October 2004 the accused pleaded guilty to murder and wounding and was sentenced to a minimum non parole period of 14 years.  He accepted that prima facie s 104 applied to the facts of the case.  The offending arose from a gang related altercation where the 15 year old victim was stabbed 30 times.  The appellant submitted that compared with the current case there were additional aggravating features including the youth of the victim, considerable premeditation and other serious assaults, with multiple offenders.

[18]     R v Tiumalu HC WN CRI-2005-091-000581 9 November 2006 was also a s 104 case and involved the murder of a woman by her partner.  A minimum period of imprisonment of 14 years was imposed.  The appellant submitted that the facts in Tiumalu were similar to the current case.  However, the murder was committed by an offender who had a previous record for violence including violence towards the victim.

[19]     Of the three cases raised by counsel R v Tumahai is clearly the most similar to this case.  The difference in the final minimum sentence of imprisonment is one year compared with this case.  A submission of lack of parity could hardly be based on such a small difference. While Tumahai had a record of previous violent offending there are aggravating features in this case not present in Tumahai including the deliberate breach of a protection order, the fact the killing took place, in part, in front of the deceased’s mother, her incarceration and preventing her from calling for help.

[20]     Looked at overall, we are satisfied the sentence was not manifestly excessive.  We consider it was well within the range of a minimum period of imprisonment available to the Judge.

Solicitors:

Crown Solicitor, Auckland