R v Pakenham - [2013] NZHC 2088

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-044-5742 [2013] NZHC 2088

THE QUEEN

v

MARK EDWARD PAKENHAM

Charges:
Plea:

Manslaughter

Injuring with intent (2)

Guilty

Counsel:

RG Douch for Crown
PG Mabey QC for Prisoner

Sentenced:

16 August 2013

SENTENCING NOTES OF BREWER J

Solicitors: Almao Douch (Hamilton) for Crown
Counsel: Paul Mabey QC (Tauranga) for Prisoner

R v PAKENHAM [2013] NZHC 2088 [16 August 2013]

Introduction

[1] Mr Pakenham, you are being sentenced today having pleaded guilty to one count of manslaughter. The maximum penalty for manslaughter is life imprisonment. You have also pleaded guilty to two counts of injuring with intent. The maximum penalty for that charge is five years’ imprisonment.

Facts

Manslaughter

[2] In 2002 you met Ms Niethe, the deceased, at a party and began a relationship. You were an experienced user of methamphetamine, a Class B drug at the time. Ms Niethe was not an experienced user of methamphetamine.

[3] On 30 March 2003 Ms Niethe, who lived with her three children and her mother, borrowed her mother’s car. She drove to your residence with a bottle of bourbon, pre-mixed drinks and cigarettes. You injected her with methamphetamine and she died. It is accepted that Ms Niethe consented to the administering of the drug. You made no efforts to obtain medical assistance for her.

[4] The next day you went to Ms Niethe’s address and gave her youngest daughter Ms Niethe’s sunglasses, phone, cigarettes and lighter. You said that she had left the possessions at your address the previous night.

[5] At some point you disposed of Ms Niethe’s body and her mother’s car. After Ms Niethe’s disappearance was reported on 2 April 2003, extensive searches commenced of the surrounding areas. Despite the best efforts of specialist searchers, neither the body nor the car have ever been located. That remains the case to this day.

[6] On 3 April 2003 you were interviewed by Police. You told them that about a month previously you had given Ms Niethe a shot of methamphetamine in her arm. You said you were “out of it” and “fucked it up”, with the consequence that Ms Niethe got a bruise on her arm. When asked about 30 March 2003, you said that Ms Niethe had visited you at your home. You said that you drank together almost a

bottle of bourbon, smoked cannabis and had consensual sex. You said that more alcohol was consumed before there was an argument and that Ms Niethe left in her mother’s car.

[7] Six years went by. In October 2009 you spoke to an associate. On two occasions the conversation turned to the topic of Ms Niethe’s disappearance. Your associate suggested that an anonymous letter revealing where Ms Niethe’s body, and presumably the car, were would cause both of your “karma” to come right. You replied by saying “I know where she is”. You revealed that you had killed Ms Niethe by injecting her with methamphetamine and you said you knew where…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Pakenham

Details

AGLC: R v Pakenham [2013] NZHC 2088
Case: [2013] NZHC 2088
Decision Date: 16 August 2013

CaseChat Overview and Summary

Mark Edward Pakenham was sentenced in the High Court of New Zealand for manslaughter and two counts of injuring with intent. The case involved the death of Ms Niethe, who died after Pakenham injected her with methamphetamine. Pakenham also pleaded guilty to two counts of injuring with intent from incidents in the early 1990s. The court had to decide on appropriate sentences for each offence, taking into account the seriousness of the crimes, Pakenham's personal circumstances, and the principles of sentencing.

The court began by establishing a starting point for the manslaughter charge, which was set at four years based on precedents where individuals administered drugs resulting in death. The court increased this starting point by two years due to Pakenham's concealment of the body and refusal to reveal its location, bringing the total to six-and-a-half years. The court applied a 10% reduction for Pakenham's late guilty plea, resulting in a sentence of five years and ten months for manslaughter. For the injuring with intent charges, the court agreed on a concurrent sentence of nine months for each charge, with a 25% reduction for the guilty pleas, resulting in sentences of seven and eight months respectively. The court considered the totality principle and decided on an effective sentence of six years and seven months, with the manslaughter sentence being cumulative on the concurrent injuring with intent sentences.

The court concluded by deciding not to impose a minimum period of imprisonment for the manslaughter charge, primarily due to the age of the offence and Pakenham's subsequent criminal history. The Crown decided not to offer evidence on the remaining counts, leading to Pakenham being discharged on those counts.

Orders