R v Nicholson

[2014] NZHC 334

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-044-005045 [2014] NZHC 334

THE QUEEN

v

ANDREW PARRY NICHOLSON JOHN GRANT CUTHERS

Hearing:                   28 February 2014

Appearances:           K Raftery and A Pollett for Crown

M Dyhrberg and M Hislop for Mr Nicholson

L Cordwell and H Leabourn for Mr Cuthers

Sentence:                 28 February 2014

SENTENCING REMARKS OF LANG J

R v NICHOLSON & CUTHERS [2014] NZHC 334 [28 February 2014]

[1]      Mr Nicholson and Mr Cuthers, you appear for sentence today having been found guilty by a jury on a charge of murder.1    As you know, the only realistic sentence that can be imposed in respect of that charge today is one of life imprisonment.   The real issue in relation to that charge, as all counsel have emphasised, is the extent to which the Court should order that you serve a minimum term of imprisonment before being eligible to apply for parole

[2]      You also pleaded guilty, Mr Nicholson, at the beginning of your trial to charges of offering to supply methamphetamine and theft of a motor vehicle.  Those charges   carry   maximum   sentences   of   life   imprisonment   and   seven   years imprisonment respectively.

[3]     Mr Cuthers, you also pleaded guilty to a charge of offering to supply methamphetamine.  That charge carries a sentence of life imprisonment.  You also pleaded guilty to unlawfully getting into a motor vehicle.  That carries a maximum sentence of two years imprisonment.

[4]      You  have also  both  pleaded  guilty in  the District  Court  to  a number of charges.  in your case, Mr Nicholson, you pleaded guilty to charges of conspiracy to supply methamphetamine and supplying methamphetamine.  They carry maximum sentences of 14 years imprisonment and life imprisonment respectively.

[5]      Mr Cuthers,  you have pleaded  guilty in the District Court to charges  of conspiring to supply methamphetamine, offering to supply methamphetamine and supplying methamphetamine. As in the case of Mr Nicholson, the conspiracy charge carries a maximum sentence of 14 years imprisonment, whilst the remaining charges carry maximum sentences of life imprisonment.

[6]      The District Court remanded you for sentence in this Court so that all charges could be dealt with together.   All counsel acknowledge, of course, that it is not possible to impose a cumulative sentence for the drug offending on the sentence to be imposed on the charge of murder. As a result, the sentences in relation to the drug

offending will be concurrent sentences.

1      The Crown proceeded at trial under ss 167(b) and 168 of the Crimes Act 1961.

The facts

[7]      The factual situation in relation to the murder charge and the other two charges to which you pleaded guilty at the beginning of your trial were fully canvassed  during  your  trial.    During  this  period  you  were  both  involved  in reasonably extensive drug dealing at a retail level.  This is how the murder charge in the present case came about.

[8]      Late on the morning of 26 July 2011, you, Mr Cuthers, sent out a text to an associate of yours indicating that you had methamphetamine for sale.  That person then forwarded the message on to a number of his associates asking whether they had any interest in acquiring methamphetamine.  One of the persons to whom he sent that text was Mr Lee McMurdo, and Mr McMurdo responded by indicating that he might be interested.

[9]      The situation then developed whereby you, Mr Cuthers, and the other person, went up to visit Mr McMurdo on the afternoon of 26 July.  You were accompanied by Mr Nicholson.  You arrived at Mr McMurdo’s property at around 3.45 pm.   It seems that you spent about 15 or 20 minutes at the property discussing a proposed drug deal.

[10]     Mr McMurdo had indicated that he was interested in purchasing a quarter of a gram of methamphetamine.  What transpired, however, when you arrived was that he wanted to purchase that on credit, and the associate through whom you had arranged the deal indicated that that was not going to happen.  So the drug deal you went up for never took place.

[11]     At that point, Mr McMurdo got out a jar of capsules that were referred to at the trial as being bath salts.  It appears that these were some kind of amphetamines that Mr McMurdo was selling.  Mr McMurdo offered these pills to you to try and you, Mr Nicholson, tried a pill, but you, Mr Cuthers, did not.  It seems that you and your associate then returned back to Auckland, effectively having had a wasted trip.

[12]     That was not your last visit to Mr McMurdo’s address that day.   Late that

night,  in  fact  at  around  1.30  am  the  next  morning,  you  drove  back  up  to  Mr

McMurdo’s property in a borrowed van.  What then transpired will never be known. What is known, however, is that some three days later Mr McMurdo’s former wife and his 12 year old daughter came to Mr McMurdo’s address only to discover his dead body lying in the back yard.  He had reasonably extensive facial injuries and had been lying in an area of the back yard to which he had obviously been dragged for some distance.

[13]     Now  you  left  the  address  at  about  4.45  am  or  5  am,  I  infer  from  text messages.   You were back in Auckland by about 6.20 am, where you went to an associate’s address in Henderson.   There, you unloaded items that you had taken from Mr McMurdo’s house.   These included a large plasma television set, some stereo speakers and a playstation module.  Very shortly after that, you began sending out text messages to your family and associates indicating that you had these items for sale.  You solicited offers of interest for the items you had just taken from Mr McMurdo’s house.

[14]    Before I go further, it is necessary for me to say something about the circumstances in which this visit to Mr McMurdo’s house occurred.

[15]     The Crown put its case on the basis that the two of you were angry or frustrated that you had not been able to conclude the sale of methamphetamine to Mr McMurdo on the afternoon of 26 July.  The Crown suggested to the jury that this had caused you to go back to Mr McMurdo’s house in order to steal property from it. Through your counsel, you both acknowledged during the trial that you had gone to Mr McMurdo’s house with the intention of stealing property from him.   Your concession  did  not,  however,  extend  to  a  concession  that  you  would  take  that property using violence if need be.

[16]     I am satisfied that it is likely that some other factor may have been involved in your decision to go back up to Mr McMurdo’s house in the early hours of 27 July. I say that because you, Mr Nicholson, spoke to your cousin some time after these events and you told her that you had gone up there effectively to collect a debt.  She referred to it as “doing a repo”.   She referred also to the fact that this person, Mr McMurdo, had been mucking you round during the day in question, but I consider it

likely that there was some underlying factor there that caused you to go up and see him again other than just the fact that he had failed to purchase methamphetamine the previous afternoon.  We will never know the details, but I consider it likely that some form of debt was owed to one or both of you by Mr McMurdo in respect of past drug dealing transactions.

[17]     Secondly, as I have said, we will never know exactly what happened when you got to the house.  It may be that you went to the house hoping that it would be empty and that you could simply take his property, but you must have known that it was his place of residence and that was where he was likely to be.  You also chose to go there in the early hours of the morning, at a time when it could be safely assumed that he would be off his guard and that the surrounding area, which was in a remote rural area in any event, would be deserted.  I am satisfied you both must have known that it was hardly likely that Mr McMurdo would willingly hand over such treasured possessions to you.  Effectively, you were taking the most valuable items from his house and obviously they were items that he gained a great deal of pleasure from. You  must  have  known  that  he  would  protest  against  having  his  worldly  items removed from under his nose.

[18]     I am satisfied that you both agreed and accepted before you went there that if he showed any resistance to you taking his property, then you would deal with that resistance by whatever violence was necessary to accomplish your object.   So violence was an issue that was firmly in your minds on that evening.

[19]   We will never know how soon after you arrived the violence began. Commonsense would  suggest  that  you  probably went  in  there and  immediately demanded that he hand over his possessions to you.   I accept, however, that it is possible that there may have been some degree of social exchange between you before that occurred.   I say that because the evidence at trial suggested that Mr McMurdo did not lead a lifestyle that many other people lead.  He may well have been still up and about at 1.30 am or 1.45 am when you arrived.   He may have invited you in.  You may even have chatted with him for awhile.  I do not know.  But what is clear in my mind is that at some stage during your discussion with him you told him that you were there to take his worldly possessions from him.  At that time,

he indicated that he was not going to give them up without a struggle, and that struggle then began.

[20]     There was no evidence to suggest that you, Mr Cuthers, were ever physically involved in that struggle.   Indeed, at the trial Mr Nicholson accepted through his counsel that he was the person who delivered the blows that ultimately caused Mr Nicholson’s death.  Nevertheless, Mr Cuthers, the jury was asked factual questions by me in a written issue sheet, and they had to return a positive answer to each of those questions before finding you guilty.  The first of these was whether you, Mr Cuthers, intentionally assisted or encouraged Mr Nicholson to land the blows that ultimately caused Mr McMurdo’s death.  The jury, through their verdict, must have found that you intentionally assisted or encouraged Mr Nicholson at the critical time. In the absence of evidence, I proceed on the basis that your culpability arose because you intentionally encouraged Mr Nicholson to inflict that violence.

[21]     It is necessary at this point to say something about the injuries that Mr McMurdo suffered.  It is fitting also, at this stage, that I recognise Mr McMurdo’s family who are here in Court today, some of whom had to give evidence at trial and, one of whom, Mr McMurdo, has then had to again relive the experience by reading his victim impact statement to the Court.  It is a complete understatement to say that this has been a tragic series of events for this family.  They have had a loved former husband, son, father, taken from them.   Nothing this Court does can ever restore what this family has lost.  The measured and sincere victim impact statements I have read makes it clear that this incident has had a devastating and wide-ranging effect for all members of the McMurdo family.  It has changed their lives forever.

[22]     Can you imagine what it must have been like for Mr McMurdo’s 12 year old daughter to find her father’s body in that state in his back yard?  Not only that, but she now knows that he was actually killed on her 12th  birthday.  From now on, she says, her birthdays will always be tinged with the sadness that she knows her father died on that very day in 2011.  As I have said, nothing this Court does can restore what this family has lost, but this Court acknowledges the loss that you have suffered

and that is an issue that must be borne firmly in mind in this sentencing process.

[23]     A very experienced pathologist examined Mr McMurdo’s body some days after he was found.  The pathologist found reasonably extensive bruising around the face and chin area.  The pathologist also found that there was considerable internal bleeding in the area of Mr McMurdo’s neck.   Externally, there was also a line of three bruises across his neck.  Examination of the neck structure revealed that there were three fractures of the bony structure of the neck, and the damage that caused these fractures is likely to have caused the bleeding.  The pathologist also found a large bruise on the back of Mr McMurdo’s head.  I accept, as a result of questions asked in cross-examination, that this may have been caused when he fell backwards striking his head on a hard object such as a path.

[24]     The pathologist said that Mr McMurdo’s death was caused by a number of circumstances, all of which were interconnected.  The first was that the blows to the head may have rendered him unconscious. The second is that the injuries to the neck and  the  bleeding  that  these  injuries  caused  is  likely  to  have  obstructed  Mr McMurdo’s airway.  Adding to the mix was the fact that he was lying face down. This further obstructed the airway.  The fact that Mr McMurdo was likely to have been rendered unconscious meant that he could not shift himself into a position whereby he could free his airway.

[25]     The second tragedy about all of this is that Mr McMurdo’s death was entirely preventable.   The pathologist told us that, had he received medical treatment in a timely manner, it is likely that he would have survived this incident.  You did not, however, think to call for help for Mr McMurdo.  You simply left him lying in the back yard in what you must have known was a severely injured state.  Not only that, but you then went down to Auckland and began selling his possessions.

[26]     Your counsel say that you are now deeply remorseful for what you did, and this is an issue I will need to return to. The best measure of your remorse, I consider, is to be gained from your reactions and actions during the hours that immediately followed this incident.  They give the best insight, I believe, as to whether or not you were remorseful for what you both knew you had been responsible for.

[27]     At trial, neither of you gave evidence, as was your complete right.   I must therefore draw my conclusions based on the evidence that was given at trial.  My conclusion, based on the pathologist’s evidence and Mr Nicholson’s acknowledgement, is that Mr Nicholson delivered several blows to Mr McMurdo’s head.  This may have caused him to fall backwards, as I have said, and hit the back of his head on a hard surface.  In addition, however, Mr Nicholson is likely to have applied a strangulation hold to Mr McMurdo’s neck.   He did so with what the pathologist described as moderate to heavy force.   It was certainly with sufficient force to fracture the three bones in the neck to which I have already referred.  Mr Nicholson then dragged Mr McMurdo’s body to the area where it was ultimately found, and went inside where he and Mr Cuthers began loading up Mr McMurdo’s gear to take it back to Auckland to sell for their own profit.

The drugs charges

[28]     I now turn to the sentences to be imposed in respect of the offending.   I propose to deal, firstly, with the drug offending because, as I have said, concurrent sentences will be imposed in respect of that offending and I wish to clear it away before I begin the important task of assessing the sentence to be imposed on the charge of murder.

[29]     It is obvious from the summary of facts that the Crown has prepared that you, Mr Cuthers, were a very busy retail drug dealer during the period covered by the charges.  You sold numerous quantities of methamphetamine and amounts up to one gram.  It is impossible to know how much methamphetamine you sold during this period, because many of the text messages on which the Crown relied give no hint as to whether an offer to supply methamphetamine was ever carried through to fruition.

[30]     The  Crown  estimates  that,  in  total,  you  were  involved  with  a  very considerable quantity of methamphetamine.   In fact, the Crown estimates that you conspired to deal in, offered to supply, or supplied a total of approximately 220 grams  of  methamphetamine.    I  cannot  sentence  you  in  accordance  with  that particular weight, because it involves sheer speculation as to how many transactions actually proceeded to fruition.  I consider that your culpability is best estimated by

proceeding on the basis that you are likely to have actually supplied around half that amount.

[31]     The sentence for your drug offending is to be governed by a decision of the Court of Appeal called R v Fatu.2    In that case, the Court of Appeal identified starting  points  for  bands  of  drug  offending  involving  the  supply of methamphetamine.  You fit within category 2 identified in Fatu.  This relates to the supply of between five and 250 grams of methamphetamine.   Starting points for offending  in  this  range  will  be  between  three  and  nine  years  imprisonment.    I

propose to take a starting point of six years imprisonment to reflect your overall offending.  That places you in the middle of the second band in Fatu.  So far as the offer to supply methamphetamine on 26 July is concerned, I take a starting point of two years imprisonment on that.  That was in relation to the proposed supply of one quarter gram of methamphetamine to Mr McMurdo.

[32]     Mr Nicholson, you were a much less busy drug dealer.  You bought and sold, as circumstances allowed.   If you had methamphetamine in your possession, you were prepared to sell it to others.   If people indicated they wanted to buy methamphetamine, you would see whether you could obtain some to fulfil their order.

[33]     The Crown  estimates  that  you  conspired  to  supply,  or  actually supplied, around 8.6 grams of methamphetamine.   Again, there is a degree of speculation regarding that amount.  This would place you either at the top of band one in Fatu which  carries  a starting  point  of between  two  and  four  years imprisonment,  or towards the bottom end of band two.   I propose to select a starting point of three years imprisonment to reflect your overall offending in relation to the drugs charges.

[34]     In relation to the charge of offering to supply Mr McMurdo on 26 July 2012, you were very much a bit player in a transaction that was initiated by Mr Cuthers. You went up there, however, knowing fully that you were participating in a drug transaction that involved the supply of methamphetamine.  I select a starting point for you on that charge of 18 months imprisonment.

[35]     I record, also, that you have pleaded guilty, Mr Nicholson, to the theft of a motor vehicle and you, Mr Cuthers, to unlawfully getting into a motor vehicle. These relate to a vehicle that you stole at around the time of the incident involving Mr McMurdo.  You subsequently used this vehicle to leave Auckland once you had attempted to get rid of Mr McMurdo’s property.  For you, Mr Nicholson, I take a starting point of one year’s imprisonment on that charge, and for you Mr Cuthers, I propose to convict you and discharge you on it.

The murder charge

[36]     This brings me to the sentence to be imposed in the most serious charge, namely that of murder.   The courts are required to impose a sentence of life imprisonment for murder, and to impose a minimum term of imprisonment of not less than ten years unless that would be manifestly unjust.3    Nobody suggests that that would be manifestly unjust given the circumstances of this case.

Section 104

[37]     The real issue, as I have said, is whether the provisions of ss 103 and 104 of the Sentencing Act 2002 come into play.   These require the Court to impose a minimum term of imprisonment of at least 17 years if certain qualifying criteria are met.  In this case, the Crown relies on two qualifying criteria, those in s 104(c) and (d).

[38]     The Crown says that  you went into Mr McMurdo’s property unlawfully, because you went there for the purpose of stealing property from him.  Not only that, you went there, as I have found, with the intention of inflicting such violence as may be necessary in order to extract the property from Mr McMurdo.  The Crown also says that this was a murder that was committed in the course of committing another serious offence. namely the offence of robbery.  As the Crown points out, this could in  fact  technically  be  an  offence  of  aggravated  robbery,  because  it  has  the aggravating factor that there were two of you who undertook the robbery.

[39]     Your counsel submit that I should not find that the provisions of s 104 are engaged.  I am satisfied, however, that they are engaged.  As I have said, if you did not enter Mr McMurdo’s property unlawfully, then your presence there certainly became unlawful at the point at which you decided to extract his property from him using  violence.    At  that  point,  your  presence  on  the  property  clearly  became unlawful.  I am also satisfied that the type of robbery that you planned to carry out is a serious offence in terms of the section, and so the murder was committed in the course of carrying out another serious offence.  This means that the provisions of the section are engaged, and I am required by Parliament to impose a minimum term of imprisonment of not less than 17 years imprisonment unless I am satisfied that it would be manifestly unjust not to do that.

[40]     In reaching my conclusion that the section is engaged, I have had regard to a number of other authorities.  The first of these was a case called R v Davis.4   In that case the offender had been socialising with the victim during the evening before the incident that led to the victim’s death.  He went back to the victim’s house from a tavern, where the two men had been drinking.  The two men then carried on drinking and socialising at the victim’s address.   When the offender eventually came to go home, he realised he had no money.  At that point he decided to go back into the victim’s property and to ask him for money.  His intention was that if the victim was

not forthcoming, he would take it from him using whatever force may be necessary. The victim resisted, and violence at a very similar level to that inflicted on Mr McMurdo was used to fatally injure the victim.   This included strangulation and blows to the head.

[41]     In that case, the sentencing Judge analysed other cases and indicated that ordinarily a minimum term of imprisonment without taking into account the s 104 factors would be around 11 years imprisonment.  Taking into account the fact that the offender also went back into the property with the intention to use violence to take the property, the Court held that an appropriate sentence was one of 13 years imprisonment.  The Court also held, however, that the sentence that was appropriate in that case was so far below one of 17 years imprisonment that it would be manifestly unjust to impose that term.

[42]     Another case that is of relevance in the present context is that of R v Watene.5

In that case, two men went to an address with the intention of stealing drugs that they believed would be at the address.  They had earlier sent along an accomplice who was to pretend to be playing no part in the robbery.   When they arrived,  they produced a weapon, and when the victim did not appear to be taking the attack seriously, the offender stabbed the victim in the knee with a knife.   He did so in circumstances that were entirely unprovoked.  The offender then stabbed the victim in the chest area.   Cannabis and other items were then stolen from the property. Before leaving, the offender placed a tourniquet on the victim’s leg, but did not apply any similar treatment to the chest wound.  The victim ultimately died from the chest wound.

[43]     In that case, the Court accepted that a minimum term of imprisonment of 17 years imprisonment was appropriate.   I consider that case to be somewhat more serious than the present case, because of the use of a weapon in the manner described on not one, but two, separate occasions.  On the other hand, the circumstances of that case are less serious in that the offender’s accomplice remained in the room when the offenders left the property, and they therefore had grounds to believe that medical help would be forthcoming.   In addition, the offender pleaded guilty.   Those mitigating factors are not present in your case.

[44]     Returning to Davis, I consider that the circumstances of this particular case are more serious for several reasons.   First, it involved a premeditated attempt to steal property.   That attempt, in itself, arose out of earlier drug-related offending. Thirdly, this involved two people going to a property in the dead of night to steal property.  And, fourthly, you left the property in circumstances where you must have known that Mr McMurdo would not be found for some time, and that he was in a very serious state.

[45]     Taking those factors into account so far as you are concerned, Mr Nicholson, I  consider  that,  but  for  the  operation  of  s  104,  a  minimum  term  of  15  years

imprisonment would be appropriate in your case.

5      R v Watene HC Wellington CRI-2007-485-127, 11 December 2007.

[46]     Mr Cuthers, I place you in a slightly different position because of the fact that you were a party rather than the principal who carried out the acts.  Having said that, you were clearly complicit in everything that happened up until that time.  You were obviously a driving force in respect of all of the events of that day, and the jury also found  that  you  intentionally  encouraged  Mr  Nicholson  to  inflict  the  blows.    I consider a minimum term of imprisonment of 13 years would be appropriate in your case.

Manifestly unjust?

[47]     This leads me to the next issue, which is whether it would be manifestly unjust to impose the minimum term of imprisonment of 17 years, rather than the minimum terms that would otherwise be appropriate.

[48]     In your case, Mr Nicholson, I do not see any factors that would mitigate to reduce your culpability from the sentence I have selected. You, as I say, now express remorse but that can best be measured against your actions at the time.  You cannot say that you are a callow youth, because you are 25 years of age.  You also have a number of previous convictions, although none for violence.

[49]     Quite clearly, your actions during this period were affected significantly by your own use of methamphetamine.  It is clear from the pre-sentence report that you were using methamphetamine yourself regularly during this period.  No doubt some of your dealing activity was directed towards ensuring that you had a ready supply of methamphetamine for your own needs.   But there is nothing about your personal circumstances that would operate either to persuade me that s 104 should not be apply, or to say that it would be manifestly unjust for the minimum term of 17 years imprisonment to be imposed.

[50]     Looking at  this  offending in  the round,  I consider that  it  is  the  type  of offending for which s  104 was designed.   The fact that the offending involved unlawful presence in a dwelling house was not a peripheral aspect of the offending. Indeed, you had decided that you would strip the house of its valuable assets.  It was a central aspect of your plan that you would go to this house and you would take

property from it.   So the s 104 factor that relates to the unlawful presence on the property is not peripheral in any sense.

[51]     Secondly, this was a serious robbery that had all the aggravating factors I have already referred to.   It involved two men going in the dead of night to a property to steal goods.   When they encountered resistance, severe violence was handed out to the point that a victim died.   I consider that those are the types of circumstances that Parliament contemplated would trigger the operation of s 104. For that reason, I do not find that it would be manifestly unjust to impose a minimum term of 17 years imprisonment notwithstanding the fact that is two years longer than would have been the case had s 104 not come into operation.

[52]     Mr Cuthers, I place you in a different category simply because of the fact that you were not the principal in this case, and did not inflict any physical violence on Mr McMurdo.  The Court of Appeal has indicated in R v Slade and Hamilton6  that the Court is able to recognise the secondary participation of parties in this context.  I consider that a leap from 13 to 17 years imprisonment would be manifestly unjust. For that reason, I am not prepared to impose a minimum term of 17 years imprisonment on you.   Instead, the minimum term will be one of 13 years imprisonment.

Sentences

[53]     Mr  Nicholson,   on   the   charge  of  murder   you   are  sentenced   to   life imprisonment and ordered to serve a minimum term of 17 years imprisonment.  On the  charge  of  offering  to  supply  methamphetamine  on  26  July  2011,  you  are sentenced to 16 months imprisonment.  On the charge of theft of a motor vehicle, you are sentenced to one year’s imprisonment.  On each of the charges of conspiracy to supply and supplying methamphetamine, you are sentenced to sentences of two years six months imprisonment.  All of the sentences will be served concurrently on

the sentence imposed on the charge of murder.

6      R v Slade and Hamilton CA245/04, 28 February 2005 (CA).

[54]     Mr Cuthers, on the charge of murder you are sentenced to life imprisonment and ordered to serve a minimum term of 13 years.   On the charge of offering to supply methamphetamine on 26 July 2011,  you are sentenced to one  year nine months imprisonment.  On the charge of unlawfully getting into a motor vehicle, you are convicted and discharged.   On the charges of conspiring to supply, offering to supply and supplying methamphetamine to which you pleaded guilty in the District Court, you are sentenced to five years imprisonment on each charge.  All of these sentences are to be served concurrently with each other, and with the sentence I have

imposed on the charge of murder.

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:

M Dyhrberg
M Hislop

L Cordwell

H Leabourn