R v Nelson

[2012] NZHC 3570

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2012-043-996 [2012] NZHC 3570

THE QUEEN

v

JORDAN ALLAN NELSON

Hearing:         20 December 2012

Counsel:         J Marinovich for Crown

P Mooney and K Pascoe for Prisoner

Judgment:      20 December 2012

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, PO Box 8217, New Plymouth Mooney Webb, PO Box 999, New Plymouth Nicholsons, PO Box 68, New Plymouth

R V NELSON HC NWP CRI 2012-043-996 [20 December 2012]

Sentence imposed

[1]      Jordan, please stand.

[2]      Jordan Allan Nelson, you are sentenced to a term of imprisonment of 18 years.

[3]      I now need to explain to you, the victim’s family, and other members of the public why I have chosen that sentence.   It will be necessary for me to do that at some length.  Unfortunately, there may be times when I use words that you do not understand.   Mr Mooney or Ms Pascoe will no doubt answer any questions afterwards.   However, it is important that I explain myself in a way that can be understood by those who have been affected by your actions and the wider public in general.

[4]      Please be seated while I do so.

Facts

[5]      Jordan Nelson turned 13 years of age on 17 January 2012.  At that stage, he was living with Mr Kerry Lock, a man who, while not related by blood to Jordan, was  regarded  as  a  father  figure  and  called  “granddad”.    Mr  Lock’s  partner, Ms Rose Kurth, lived with them on a rural property at Urenui.

[6]      On Sunday 15 April 2012, at about 3pm, Jordan retrieved a .22 rifle from the sleep-out.   He walked towards the kitchen.   Ms Kurth had her back to him while seated at the kitchen table doing a jigsaw puzzle.  Jordan took aim, fired and killed Ms Kurth by shooting her in the back of her head.

[7]      Those are the blunt and brutal facts on which Jordan appears for sentence today.  But, for sentencing purposes, they need to be considered in a much broader context.

[8]      Jordan’s father resides in Stratford and is 35 years old.  For the past 12 years there has been a restraining order which has limited Jordan’s ability to contact his father.  His mother is is aged 38 years and lives in the Hawkes Bay.

[9]      Jordan considered Mr Lock to be his granddad.  Essentially, that position has been present from the time Jordan was a baby or toddler.  This occurred by reason of Mr Lock’s then relationship with Jordan’s actual paternal grandmother, around the time of his birth.  This de facto grandfathership continued even after Mr Lock and Jordan’s grandmother separated, in about 2002.  Mr Lock continued to look after him and to take care of him.   This was done through a written agreement between Jordan’s mother and Child, Youth and Family.

[10]     In the last week of September 2010, Mr Lock, Ms Kurth and Jordan moved to the address at Urenui.  During Christmas 2010, Jordan spent time in the Hawkes Bay with both his paternal grandfather and his mother.  He returned from his holidays too late for school commencement.   He returned back to Napier by bus to stay at his mother’s.

[11]     It was October 2011 when he next returned to Mr Lock’s and Ms Kurth’s care.   A placement occurred after Mr Lock was interviewed by Child, Youth and Family by telephone and an election was made to have Jordan live there, as opposed to living with some other caregiver.

[12]     In the New Year of 2012, Jordan began at Waitara High School.  He seemed to be doing well.   At the time of Ms Kurth’s death, he was off school but doing homework.  Mr Lock said that Jordan did not like doing this at first and wouldn’t look at the school work.  When it was revealed that he had a weekly deadline every Thursday for completing the work, Jordan swore a bit, got over it and got into his work. He finished four weeks of work in three weeks.

[13]     During this period, Mr Lock was making strong efforts to instil some self- discipline into him by getting him up at 6.30am to help work on the farm.   The afternoons were structured with completing his school work.

[14]     About a week prior to Ms Kurth’s death, as part of this disciplinary approach, Ms Kurth took a Freeview box out of Jordan’s room so that he could not watch television.  This had the effect of forcing him from his room out into the lounge to watch television with Mr Lock  and Ms Kurth.   They believed that to be more beneficial.  He retained the right to use the Playstation game within his room.

[15]     During his time with Mr Lock, Jordan learnt much about rural lifestyle.  This included the use of a .22 calibre rifle.   Mr Lock believed that Jordan would have handled that rifle about half a dozen or so times.  He used it to shoot goats.  Mr Lock had taught him about gun safety.  Jordan knew where the rifle was stored within the house and where, separately, the ammunition was kept along with the magazine.

[16]     On the day of Ms Kurth’s death, Ms Kurth had taken some medication to relieve pain in her leg and remained asleep until midday.  They went out at about

1.40pm to look at some roadworks that were taking place.  When they returned, Mr Lock began to watch a rugby league game on television.  It was at this stage that Ms Kurth began to do a jigsaw puzzle at the dining room table.  Jordan went into his room to play on the Playstation.

[17]     At some time earlier, Jordan had moved the rifle and ammunition to the sleep-out.  At the half time break in the football, Mr Lock went out to shift stock. While he was out, Jordan gathered the gun and took steps to shoot Ms Kurth.

[18]     Mr Lock returned later, finding his partner in the bedroom, where she had been dragged by Jordan.  He saw the .22 rifle on the floor against the bottom of an entertainment  unit,  about  two  metres  from  the table where Ms  Kurth  had  been seated.  Emergency services were called.  Sadly, Ms Kurth was dead and Mr Lock was advised of that.

[19]     During Mr Lock’s initial view of the situation when he returned to the house, he saw that the bedroom had been trashed, cabinets and tallboy drawers had been opened and clothes were lying on the floor, between drawers and the bed.   Some money had been taken, as had a carved depiction of a dog chasing pigs, carved on an actual boar tusk.

[20]     Those facts provide the general background against which I need to consider sentence.

Victim impact statements

[21]     First, I recognise and acknowledge those people in Court who have read or supplied victim impact statements.  They are moving documents.  Those that were read were delivered in a dignified way, for which I thank you all.

[22]     Without attempting to diminish the hurt caused to other family members, I wish to refer in particular to Mr Lock’s statement.  Yours, Mr Lock, is an impossible situation.  I express condolences to you and your family.  I trust that at some stage you will be able to resume a normal life.  It is, however, too much to expect that you will ever be fully released from the pain that you suffer as a result of the death of your partner at the hands of a boy you regarded as your son.

Jordan’s personal circumstances

[23]     I have had the advantage of psychiatric reports from Dr Immelman, the most recent of which is dated 11 December 2012.  I have also read the pre-sentence report and one prepared on behalf of Child, Youth and Family Services.

[24]     I do not propose to go through the reports in detail.  Rather, I summarise the salient features:

(a)      Dr Immelman opines that relevant characteristics are: the state of Jordan’s brain development at the time of the killing, problems that he suffered with attachment to other people in his life, a prior exposure to domestic violence (not,  I emphasise, involving either Mr Lock or Ms Kurth) and communication difficulties.

(b)At  the  time  of  the  offending,  Jordan  was  subject  to  a  care  and protection order, meaning that his place of residence was for determination by Child, Youth and Family Services.  Jordan wished to

spend time with his mother.  However, he believed that Ms Kurth had denied him that opportunity.   It now appears that the decision may have been made through Child, Youth and Family Services.  Whatever the true position, and the tragic consequences of that mistake, there is no doubt that Jordan believed that Ms Kurth was responsible for this decision and that he was angered by it.

(c)      Notwithstanding Jordan’s separation from his father and his mother since a young age, it is clear that Jordan had established a bond with his mother and that he was upset that he could not see her.   That reaction needs to be viewed through the eyes of a 12 or 13 year old boy for whom an issue such as that assumes far greater importance than it would for an adult.

(d)Jordan did not have the ability to evaluate risk, consider outcomes or make informed choices at the time of the killing.  At his age, and with his state of brain development, he was simply not equipped to rationalise solutions.

(e)      Jordan’s early exposure to domestic violence is likely to have been a factor in his inability to communicate the degree of distress that he felt at not being able to see his mother.  Dr Immelman indicates that the offending occurred “in the context of Jordan feeling extremely powerless  and  unheard  with  the relative immaturity of his  frontal executive brain functioning”.

[25]     I review these factors later, in the context of wider scientific research about the functioning of an adolescent brain which, in material respects, accords with the views expressed by Dr Immelman.

Analysis

[26]     Murder is the most serious crime.   There is a presumption that a person convicted  of  murder  will  be  sentenced  to  life  imprisonment  and  may  not  be

considered for parole for at least 10 years.1   While recognising that all murders are serious, the presumptive period to be served in prison before an offender can be eligible for parole is increased to 17 years in certain circumstances.2   In this case, the Crown relies on the vulnerable position in which Ms Kurth found herself and a degree of premeditation to suggest that this crime falls within those for which a minimum period of imprisonment of at least 17 years must be imposed.

[27]     The Court has power to impose a finite sentence in substitution for one of life imprisonment if a sentence of imprisonment for life would be “manifestly unjust”.3

Understandably, in cases where the Court concludes that a lesser sentence is justifiable,  written  reasons  must  be  given  for  not  imposing  life  imprisonment.4

When transcribed, what I say today will comprise those written reasons and explain why I have imposed a lesser sentence.

[28]     I consider first whether this is a case in which an aggravating factor exists that would require the Court to impose a minimum term of imprisonment of at least

17 years.  I conclude that it does not.  My reasons for reaching that view are:

(a)      Although Ms Kurth could be said, in common parlance, to have been vulnerable when seated at the kitchen table, doing her jigsaw, with her back towards the position from where Jordan shot, the nature of the vulnerability to which s 104(1)(g) of the Sentencing Act refers is more directed to  circumstances  in  which  a person is  more prone to  be attacked physically, rather than a person who happens to be standing or  sitting  in  a  place  where  they  may  be  attacked  unexpectedly. General  examples  of  situations  to  which  this  vulnerability  would apply are a child vulnerable to an attack from an adult; a frail elderly person who may not be able to resist; a person whose health will not permit them to respond adequately to a threat; or, persons who are lying prone and unable to defend themselves against a street attack.

In my view, the fact that Ms Kurth was sitting at the kitchen table in

1      Sentencing Act 2002, ss 102 and 103.

2      Ibid, s 104(1).

3      Ibid, s 102(1).

4      Ibid, s 102(2).

this situation does not fall within the parameters of the “vulnerability”

criterion for this purpose.5

(b)The murder did not involve “calculated or lengthy planning”.   As I explain later, it is more likely, in my view, that the killing, while involving an act of deliberate shooting towards the back of the deceased and towards her head, was, nevertheless, an impulsive and irrational decision of a young boy, just into his teenage years.

[29]     Having determined that the aggravating factors are not sufficient to uplift the otherwise applicable minimum term, I next consider whether life imprisonment is necessary.  I do so on the basis of a stern test.  Would it be “manifestly unjust” to sentence  Jordan  to  life  imprisonment?    If  life  imprisonment  were  imposed  it

necessarily carries with it a minimum term of imprisonment of at least 10 years.6

The use of the word “manifestly” means that any departure from the presumptive life sentence must be clear,7 and when “the offending is at the lowest end of the range of culpability for murder”.8

[30]     My starting point is Jordan’s age.  Unlike other offenders to whom reference has been made in submissions, Jordan falls into a special class of persons aged between 10 and 14 years.  Our Crimes Act provides that no person shall be convicted of an offence when of the age of 10 years but under the age of 14 years unless he

knew either that the act or omission was wrong or that it would be contrary to law.9

While in this case, it is clear that Jordan knew that the killing of Ms Kurth was wrong and has pleaded guilty to a charge of murder, the point is that Parliament has identified a certain range of ages within which a different test applies to culpability for criminal behaviour.

[31]     At the time of the killing Jordan was 13 years and three months old.  I am unaware of anyone younger than that being convicted of murder in New Zealand.

The closest comparator case of which I am aware involved two  young women,

5      See also R v Williams [2005] 2 NZLR 506 (CA) at para [89].

6      Ibid, s 103(2).

7      R v Rapira [2003] 3 NZLR 794 (CA) at para [121].

8      R v Smail [2007] 1 NZLR 411 (CA) at para [14].

9      Crimes Act 1961, s 22(1).

Ms Churchward, aged 17, and Ms Te Wini, 14 at the time of the offending but about to turn 15.  They entered into an elderly man’s home in Opotiki to steal property but, after being disturbed, brutally beat the elderly man to death.  In that case, the killing involved a prolonged attack by both offenders with pieces of wood they had gathered for the purpose.10

[32]     Cases in which the presumption for imposition of life imprisonment has been rebutted fall into four broad categories: mercy killing,11 mental impairment,12 limited involvement  in  the offending giving rise to  the crime13   and  so  called “battered defendants”.14

[33]     In this case, the question is different.   It is whether it would be manifestly unjust to impose life imprisonment in light of Jordan’s culpability, having regard to his age and, more generally, his personal circumstances.  I am conscious of the fact that I must balance, against that, the wider public interest in ensuring that a person who commits the crime of murder receives a sentence that adequately denounces the offending, holds the offender accountable for his or her actions and protects the

community from the possibility of reoffending.15

[34]     In the home invasion case, to which I have referred, our Court of Appeal rejected a submission that life imprisonment was inappropriate in respect of the 17 year old’s youth and mental state.   The Court emphasised the brutal nature of the murder, committed in the course of a premeditated home invasion for the purpose of robbery.16   Following re-sentencing, after a successful appeal to the Court of Appeal, the accomplice, aged just under 15 years at the time of the offending, also failed to persuade a Judge that a sentence of less than life imprisonment was required.  The nature of the offending,  the premeditated  home  invasion  and  the brutal  beating

outweighed the weight that could be attached to her age and remorse.17

10     See Churchward v R [2011] NZCA 531; (2011) 25 CRNZ 446 and R v Te Wini [2012] NZHC

1593.

11     For example, R v Law (2002) 19 CRNZ 500 (HC).

12     For example, R v Reid HC Auckland CRI-2008-090-2203, 4 February 2011.

13     For example, R v Cunnard [2012] NZHC 815.

14     For example, R v Wihongi [2012] 1 NZLR 775 (CA).

15     R v Rapira [2003] 3 NZLR 794 (CA) at para [125].

16     Churchward v R [2011] NZCA 531; (2011) 25 CRNZ 446 at para [65].

17     R v Te Wini [2012] NZHC 1593 at para [66].

[35]     It  is  also  important  that  the  home  invasion  case  plainly  fell  within  the category of case for which a presumptive minimum term of imprisonment of 17 years would have been necessary.  Once offending reaches that scale, it is difficult to see how a sentence of less than life imprisonment could be justified.

[36]     In Ms Churchward’s case, our Court of Appeal  discussed in some detail scientific literature dealing with adolescent brain development.  This is also a subject on which the psychiatric evidence called on behalf of Jordan (and with which the Crown takes no issue) touches.

[37]     Dr Immelman’s evidence is consistent with the literature. A brief summary of

relevant points follows:

(a)      There are several characteristics of adolescents that are recognised by psychological research: in particular, deficiencies in decision-making abilities, greater vulnerability to external coercion and the relatively unformed nature of the adolescent character.   Diminished decision- making tends to arise out of an adolescent’s lack of life experience and his or her inability to process information in a manner akin to an

adult.18

(b)Emotional influences arising out of family and other dynamics can contribute to immature judgments and bad choices.    During adolescence the developing brain is influenced by social factors such as family stability and the use of substances, including alcohol and drugs.   Scientific research supports the proposition that adolescents have  a  diminished  ability  to  control  impulsive  behaviour. Specifically, the research suggests that any calculation of risk and reward is skewed by an inadequate understanding of the consequences

of one’s actions.19

18     Churchward v R [2011] NZCA 531; (2011) 25 CRNZ 446 at paras [50] and [51].

19     Ibid, at paras [52] and [53].

(c)      The  ability  to  plan,  consider,  control  impulses  and  to  make  wise decisions is the last part of the brain to develop.  In short, while most adolescents know right from wrong, the environment in which risk taking and other behaviours occur can lead to inappropriate behaviour. As the scientists put it, adolescents are “biologically built” to take risks.   Adolescents are more prone to react with “gut instincts and

impulsiveness and aggressive behaviour”.20

The reports I have received confirm the applicability of those factors to Jordan’s

decision-making process that led to the tragic death of Ms Kurth.

[38]     Although youth alone cannot automatically displace the presumption of life imprisonment, there are signals in both the Sentencing Act and the New Zealand Bill of Rights Act 1990 which indicate that, in the case of a child, he or she must be dealt with in a manner that takes account of age.21    The Bill of Rights Act specifically states that there is a right, in the case of a child, to be dealt with in a manner that takes account of his or her age.22

[39]     In sentencing any prisoner, this Court must act on available evidence.  Where the Crown  alleges  that  an  act  said  to  aggravate offending  it  has  the burden  of proving, beyond reasonable doubt, the existence of that fact.23    In this context, an “aggravating fact” is one that the prosecution asserts “justifies a greater penalty or other outcome than might otherwise be appropriate for the offence” and the “Court accepts it is a fact that may, if established, have that effect on the sentence or other disposition of the case”.24

[40]     None of us will ever know precisely what was going through Jordan’s mind when he decided to shoot Ms Kurth.  Jordan professes not to recall.  At his Police interview, the relevant part of which I viewed today, he seemed stunned when he

realised the enormity of what he had done.  On the evidence, it seems likely to me

20     Ibid, at para [80], referring to a review undertaken by the New South Wales Department of Education and Training, “Closed for Construction – Adolescent Brain Development in the Middle Years”.

21 Ibid, at para [76].

22     New Zealand Bill of Rights Act 1990, s 25(i).

23     Sentencing Act 2002, s 24(2)(c).

24     Ibid, s 24(3), definition of “aggravating fact”.

that  he has  shut  out  any memory of that  decision-making phase because of its traumatic effect both on him and others, particularly Mr Lock.

[41]     All that can be done is to draw inferences from his conduct both before and after the killing, to determine his level of culpability for the offending.   It is then necessary to take account of that culpability to determine what response is required by society to mark the offending and to balance those considerations arising out of Jordan’s age, brain development and relevant personal circumstances.

[42]     In relation to culpability:

(a)      Jordan was familiar with guns.   He knew that if a goat was shot it would likely be killed.   He had gone hunting with Mr Lock on a number of occasions.  He had the ability to use a gun to lethal effect.

(b)Jordan  knew  where  the  gun  was  kept  and  also  knew  that  the ammunition was kept in a different place.   Some hours before the shooting he gathered both the gun and the ammunition and took them to the sleep-out, adjacent to the room in which Ms Kurth was doing the jigsaw.  They remained in that room for a number of hours, until Mr Lock left to do some farm work at half time in the football match that he was watching.

(c)      Jordan went into the sleep-out, loaded the gun, returned, aimed the gun at relatively close range towards Ms Kurth and fired a bullet into the back of her head.

(d)Jordan then exhibited panic.  He moved the body.  He rumbled around to find money and personal effects to take with him.  He pulled out drawers and the like.  He then drove off in Ms Kurth’s car and was apprehended later.

[43]     From the visual evidence of his interview that I have viewed, I am satisfied that Jordan’s decision to shoot was made, but he did not realise what he had done

until it happened.  Something happened within his brain that made him shoot and, as I have said, we will never really know what that was.  But the steps that he then took were consistent with panic.  Nothing done after that was ever going to prevent his apprehension.  The steps he took to move Ms Kurth’s body, to remove items from the house, to empty drawers and drive away evidences the panic of a 13 year old boy. They are not the actions of a calculating killer trying to cover his tracks.

[44]     The most likely catalyst for what occurred was Jordan’s belief that Ms Kurth was responsible for not allowing him to visit his mother. Whether Jordan intended to kill Ms Kurth when he first deposited the gun and ammunition in the sleep-out is unclear.  The fact that he left it there for some hours suggests not.  Whether his brain was functioning at a level which could justify a finding that he deliberately waited until Mr Lock left to retrieve the gun and then cold bloodedly killed Ms Kurth is open to considerable debate.  The panicked reaction following the shooting suggests a realisation of what he had done that is consistent with impulsive decision-making rather than a cold blooded intent to kill.

[45]     I have approached sentencing on the basis that, irrationally, Jordan formed the  view  that  Ms  Kurth  was  responsible  for  many  of  his  life  problems  and determined to do something about it, without having any comprehension of the consequences of his actions beyond Ms Kurth’s immediate demise.

[46]     The interests of those who have come to Court today to speak of their grief and suffering as a result of Jordan’s actions would not have entered his head.  Nor would it have occurred to him that the “grandfather” whom he loved, Mr Lock, would be so devastated by what occurred, particularly given the divided loyalties between his partner, Ms Kurth and the boy who grew up as his “son”, Jordan.

[47]     Nothing I have is intended to minimise the seriousness of the crime.   It is difficult to reach any conclusion other than that Jordan intended to kill Ms Kurth, as opposed to doing her serious harm reckless as to whether death ensued.  That aspect of the case raises significant public interest concerns in the sentence to be imposed. Whatever sentence is imposed must be sufficient both to mark society’s abhorrence of the act committed and to reinforce its belief of sanctity of human life.

[48]     On  balance  I  concluded  that  those  factors  affecting  Jordan’s  culpability

prevail.  I find it would be manifestly unjust to sentence Jordan to life imprisonment. In my view, a lengthy determinate sentence will respond to the offending.

[49]     At 13 years of age, an indeterminate sentence of that type gives no hope of release into the community and may indeed provide a disincentive for him to undertake programmes designed to address the problems that led to the killing.  In short, even though a lengthy determinate sentence is required to mark the offending, a mix of life imprisonment, particularly when coupled with a minimum term of imprisonment of 10 years, would be crushing in the eyes of a 13 year old child.  10 years is not far short of his entire life.

[50]     I apply the principle that a lengthy determinate sentence is preferable to one of an indefinite nature.  I do not see that society’s interests are enhanced in any way by sentencing a 13 year old boy to life imprisonment.  I am not prepare to do so.

[51]     My next task is to consider what finite sentence should be imposed.   In determining that I have regard to the following principles:

(a)      The sentence must mark both the interests of the victims and (more generally) that of the community in ensuring that the sanctity of life is protected.25   In doing so, that reflects that murder is the most serious

of offences.26

(b)      The  sentence  must  recognise  the  diminished  nature  of  Jordan’s

culpability for the offending.27

(c)      The sentence must take account of information provided to the Court about the effect of the offending on the victim’s family.28   It must also

take account of Jordan’s own personal circumstances.29

25     Sentencing Act 2002, s 8(a).

26     Ibid, s 8(c).

27     Ibid, s 8(a).

28     Ibid, s 8(f).

29     Ibid, s 8(f).

(d)Finally, and importantly, Parliament requires the Court to “impose the least restrictive outcome that is appropriate in the circumstances”.30

[52]     It is for the Court to determine, in each case, the weight to be given to each of those factors.  There is no presumption that one factor has any greater weight than any other.31

[53]     Again, balancing those considerations as best I can, I decided that a finite sentence of 18 years imprisonment was required.  That takes account of the guilty plea entered by Jordan to the charge.

[54]     I do not consider that a minimum term of imprisonment is required to meet relevant sentencing goals.   While I acknowledge that what occurred could never have been predicted on the basis of known facts about Jordan’s circumstances, it is unlikely that the community requires further protection from him that could not be achieved through either service of a sentence of 18 years imprisonment or release

into the community after one-third32  or more of that sentence on terms that the

Parole Board will fix to protect the safety of the community.   There is also the ability, as Mr Mooney, for Jordan, indicated, for the Parole Board to recall someone to continue serving a sentence if there were any breach of conditions.

[55]     I acknowledge that a period of 18 years imprisonment is also likely to be seen as crushing by someone of Jordan’s age.  But, at least, there is a finite term to be served.  In addition, it will no doubt be explained to Jordan that he has the ability to seek parole after serving one-third of the sentence.  That should provide him with an incentive to address his personal problems and ultimately remerge into society a better and safer person.   Whether he is in  a position to have parole considered favourably after that length of time lies entirely in his hands.   He will need to persuade the parole Board that he deserves to be released on terms.

[56]   Jordan, those are my reasons for imposing the sentence of 18 years imprisonment.

30     Ibid, s 8(g).

31     Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607, at para [37].

32     Six years.

[57]     Please stand down.

P R Heath J