R v Norman HC Christchurch CRI 2006-009-010787

[2007] NZHC 1842

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2006-009-010787

REGINA

v

TONY BRIAN NORMAN

Hearing:         14 June 2007

Appearances: K J Beaton and B M Stanaway for Crown

AND Garrett and K Cook for Prisoner

Judgment:      14 June 2007

SENTENCING REMARKS OF FOGARTY J

[1]      Tony  Brian  Norman,  you  have  pleaded  guilty  to  the  murder  of  Ariana Burgess, to her kidnapping, and to the crime of aggravated burglary.  On the murder you are sentenced to life imprisonment.

[2]      The next question is: what should be your minimum term of imprisonment? It is against that question that I now set out the facts and considerations.

[3]      You and Ariana had been in a domestic relationship for approximately four years and have a child now aged three years.   Prior to 7 September last year the relationship had deteriorated and Ariana was spending quite a bit of time away from

your family home.  On Thursday, 7 September, she told you that she was going to a

R V NORMAN HC CHCH CRI 2006-009-010787  14 June 2007

friend’s house in Barbour Street for the evening and she did so, leaving about 5 pm taking with her your child.

[4]      At about 10 o’clock that night you arrived at the address and wanted to speak to her.  There was some discussion but you were refused entry to the house.  You left after  making a  number  of threats  and  you  returned  home.    Back  at  home  you smashed a number of bottles and crockery and made a number of telephone calls leaving abusive messages.  You then took a stainless steel chef’s knife with a blade of approximately 20 centimetres from a set of knives in the kitchen and about 2 am you returned to the Barbour Street address.   You entered the property and walked around the section listening to the activity inside the house.  You used a fork, which you had also taken from your home, to break into Ariana’s car, climbed into the back seat of the car and kept observation on the house.   You approached the house on two further occasions at least and at 3.30 am observed some visitors to the house leaving. At some stage you got into the boot of the car via the rear seat, where you stayed until the morning.

[5]      At 8.45 am  after being aware that the occupier had left and that Ariana and the child were still there, you went inside, carrying the chef’s knife in your trousers. You spoke to Ariana.  You demanded money from her.  She refused to give you any. You produced a knife, held it to her throat, demanded that she go with you in the car. You forced her to drive, placing the child in the rear of the car where you also sat. You sat behind Ariana, holding the knife in your hands.  You forced Ariana to drive along Barbour Street and turn into a number of neighbouring streets.   As the car entered Osborne Street  Ariana drove onto the footpath near some workmen and began sounding the horn.   You began stabbing her, inflicting a large number of wounds to her stomach, head, chest and leg areas.

[6]      You got out of the car, threw the knife on the road and walked away and about ten minutes later you approached a passing police patrol and told the officer you wanted to talk about the stabbing.

[7]      Ariana died swiftly at the scene.

[8]      Your counsel, Mr Garrett, has properly conceded that there are a number of reasons why the starting point for analysis of the minimum period of your sentence should be 17 years.   This is because of the terms of s 104 of the Sentencing Act

2002.

[9]     The Crown submits that because the murder was conducted during the kidnapping,  after  a burglary,  and with some  measure  of premeditation,  that  the minimum period of imprisonment would normally be higher than 17 years – about

18 or 19 years.

[10]     I agree with that proposition provided it is understood that that would be the sentence  if  the  crime  were  committed  by  a  person  who  had  normal  levels  of rationality and normal self-control.

[11]     The  Crown  acknowledges  that  you  have  serious  and  significant    mental disorders as covered by Dr Earthrowl.

[12]     I want to go through Dr Earthrowl’s report and the other psychiatric reports in a little detail, as it is an important consideration in this case.  Dr Earthrowl reports that there have been psychiatric assessments of you going back to at least 1994.  In

1998, several years ago, which places you about 15 years of age, a psychiatrist described you as very withdrawn and that you had been from about the age of four. You were diagnosed as meeting criteria for conduct disorder and depression.

[13]     In 2001 you were reassessed again and the diagnosis was conduct disorder. This followed a number of assaults upon your peers at Kingslea Residential Centre. In December 2003 you were referred to the Marlborough Mental health Service by your general practitioner.   This appears to be after you had cut your wrists.   No formal diagnosis was made at that stage.  You were referred again in April 2004, by the same general practitioner, after you had described to him hearing voices telling you to harm or kill yourself and hearing others laughing at you.  You had described to the general practitioner self harm attempts.  You were diagnosed at that point with depression with psychotic features and anti-social personality disorder.   You were

started on anti-depressants and anti-psychotic medication but you failed to attend arranged specialist follow-up.

[14]     On 3 September, several days before the death of Ariana, you attended the Emergency Department and were psychiatrically assessed.  This appears to be after you had cut your forearms superficially.   It was described by the mother of the deceased as a suicide attempt, but not in that manner in Dr Earthrowl’s report.  He described it as having cut your forearms superficially.   However, on that analysis, and I am not sure who did it, I do not think it was Dr Earthrowl, you were not considered to exhibit a major mental illness and you declined an offer of follow-up.

[15]     People in the Courtroom have already heard Dr Earthrowl’s conclusions after his consultations with you over four hours and study of the psychiatric reports that I have  just  referred  to.    It  is,  however,  important  that  they  be  recorded  in  the sentencing remarks.

[16]     Dr Earthrowl is of the clinical opinion that  you present  primarily with a severe  and  mixed  personality  disorder  demonstrating  significant  impairment  of inter-personality relatedness with significant  social isolation and  poor  social and occupational functioning.  You  have  a  history of anger  management  difficulties, impulsivity, and a restricted range of affect, that is, as I understand it, in the ability to understand other persons’ feelings.  He also considered you fitted the criteria for a diagnosis of dysthymic disorder, that is to say, an enduring pattern of a pervasively low mood, with some biological features of more significant depression.  He thinks it likely that at the time of the killing you may have fulfilled the diagnosis of being in a major depressive episode superimposed on this chronic dysthmic disorder.

[17]     He is of the opinion, however, that you do not present with a more pervasive psychotic illness such as Schizophrenia.  He was of the opinion that you were fit to stand trial.  He is also of the opinion that it is unlikely that you would have a defence of insanity available to you as defined in the Crimes Act 1961.  He was also of the opinion that while individually each of the range of these diagnoses are unlikely to be considered a disease of the mind, it is arguable that as a whole they could be considered to meet this criteria.  However, considered as a whole, it was not such as

to prevent you understanding the nature and quality of your actions or the moral wrongfulness.     He was of the opinion that  these personality abnormalities and conditions that I have just described might be regarded as special characteristics for the purposes of analysis of any defence of provocation.   He considered that your condition would increase your sensitivity or susceptibility to your paranoid misinterpretation and long term fearfulness of what you thought was your partner’s infidelity.

[18]     Dr Earthrowl’s views are, as I read it, essentially shared by Dr Brinded, another very experienced forensic psychiatrist who has filed a report.  Dr Brinded, however, makes the point that he could not see any obvious nexus between these diagnoses and the conduct of the deceased.

[19]     I should explain here what the psychiatrists were considering.   Before you pleaded guilty your counsel was very properly considering whether or not there was a defence of provocation.  This consideration followed what was obviously an earlier consideration as to whether or not you were criminally insane.  The expert opinion was that you were not criminally insane but the question was whether or not you had such special characteristics so  that  what  had  happened,  was  provocative,  which would not in ordinary circumstances be provocative conduct to a normal person. These were the comings and goings of your partner while the relationship was falling apart, going to stay with her girlfriend, and that house having visitors, and the refusal of your  partner to  give  you  money.    Those  are  everyday events  which  happen probably thousands of times each day in this country and which the persons affected find stressful, but use their self-control, and no crime or harm occurs.

[20]     The psychiatrists were considering whether or not the conditions you suffered from were such that they were special characteristics that the law could take into account and a jury could consider to find that you were provoked into killing Ariana.

[21]     My responsibility as a Judge was not to allow that defence of provocation to go to the jury unless I thought that, on the law, such a view could be taken by the jury.  I had considerable reservations about that matter going before the jury and we had a preliminary argument last week.  I was of the view that it was very unlikely

that a jury would be presented with any provocative conduct by Ariana and secondly, that your counsel would not be able to show any significant personal characteristics. This is not because you did not have significant personality disorders and depression as I have described but because I formed the view that your mental condition went to your lack of self-control, your inability to exercise self-control like a normal person. The law requires that when applying the test of provocation a jury must assume that you have normal self-control.

[22]     In my view your counsel properly assessed the situation and informed you of the matters and you quite properly at that point, the next day, pleaded guilty.

[23]     These  personal  characteristics  which  are  not  available  to  you  to  raise  a defence of provocation are, however, matters that in my view can be taken into account when assessing the minimum term of imprisonment.   The law generally requires Judges to firstly assess the magnitude of crime and sort out a starting point for imprisonment and then adjust that for personal circumstances.   That two stage test is complicated by s 104 because criteria in s 104 mix up both the objective characteristics of crime, the brutality during the course of the kidnapping and subjective factors such as whether or not the killing was premeditated, coldly for example, carried out and so on.

[24]     I think the Crown is right in its analysis to say if this were a murder by a person who could be described as normal then the minimum term of imprisonment would have to be 18-19 years.  But you do not fit into that category, and taking into account your mental condition, it is appropriate to reduce that back to 17 years. However, because you do not have a defence of provocation, because you are not criminally insane, the law is quite clear that you must be sentenced to a period of 17 years unless it is manifestly unjust to do so.

[25]     It is at this point that the Crown acknowledges that, on the authorities, the fact that you have faced up to the charge and pleaded guilty, entitles you to a degree of discount, not to the magnitude that the Court recognises for pleas of guilty in other cases.   I am guided here by the recent decision of the Court of Appeal in R  v  McSweeney  CA488/06  23  April  2007.    The  Crown  have  suggested,  quite

properly in my view, that the maximum reduction should be two years resulting in a sentence of 15 years.

[26]     Your counsel has submitted, relying on the decision of my brother Clifford J

in the case of R v Tiumalu High Court Wellington CRI 2005-091-581 9 November

2006 that the sentence should be 14 years.   That is a case with some similarities but significantly, as Ms Beaton pointed out, is a case where the only argument for s 104 applying was the brutality of the stabbing.  As a result the Judge decided s 104 did not apply.  But here, your counsel have agreed with the Crown, and I would have found it anyway, that s 104 does apply, for a whole bundle of other reasons.  Once s

104 does apply the Court of Appeal has made it clear in McSweeney and in other authorities, that only a limited reduction from 17 years is possible. For these reasons I am satisfied that the correct sentence for you is that asked for by the Crown.

[27]     You are sentenced to a minimum of 15 years imprisonment.

[28]    It is also necessary for me to impose sentences for the kidnapping and aggravated burglary charges.   These sentences will be concurrent.   They will not extend the minimum period of imprisonment.

[29]     On the kidnapping charge you are sentenced to  nine  years  imprisonment concurrent.   On the aggravated burglary charge to three years imprisonment concurrent.

Solicitors:

Raymond Donnelly & Co, Christchurch, for Crown

AND Garrett, Christchurch, for Prisoner