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 her body was located. You said that you “shot her up full of shit”, that “she’d never been blasted before” and it “fucked her”.  You observed that death in that manner was not a nice way to go and that she had started squirming.  Apparently these conversations were being recorded, but you did not know that.

[8]      In August 2011 you were interviewed again by the Police.  You denied any involvement in the death of Ms Niethe.   You denied any conversations with any other person in which you had made admissions.   The Police then played the recording of the October 2009 conversations to you, and you admitted that it was you speaking but you denied that you were admitting the killing of Ms Niethe.

[9]      You have now admitted to causing the death of Ms Niethe by injecting her with  methamphetamine,  but  you  continue  to  deny  knowing  the  location  of Ms Niethe’s body.

Injuring with intent (x2)

[10]     As to the other two charges you face today, in either 1990 or 1991 you started a relationship with Ms Bailey.   On one occasion during the relationship you were meant to be attending a counselling session but you failed to do so.  Ms Bailey saw that you were not at the session and upon returning home you argued and that led to you giving Ms Bailey “a real hiding”. You punched her at least 20 times, causing her bruising and discomfort.

[11]     During that altercation you verbally abused Ms Bailey and threatened her.

[12]     In 1992 you were in a relationship with Ms Rawlings.   Ms Rawlings gave birth  to  your  son  on  15  October  1992.    Two  days  after  giving  birth,  you  and Ms Rawlings had an argument during which you kicked her forcefully from behind, which caused the stitches she had received after the birth to split and her wound to bleed profusely.

Personal circumstances

[13]     I have had the benefit of reading a pre-sentence report.  You have appeared before the Court many times but not for offending of this magnitude.  The pre- sentence report details the difficulties you have faced in your life. You grew up in an environment of abuse until you left home.  You do not have much family support. The  pre-sentence  report  says  that  you  accept  responsibility  for  the  death  of Ms Niethe.  It also indicates that you are vague about the details of the assaults that occurred in the early 1990’s.

[14]     According to the report, you are significantly remorseful and wish to make amends to Ms Niethe’s family, but you do not believe there is anything you could actually do that would make any difference.  You said that you are working with a psychologist in order to address  your memory loss, to enable  you  to  assist the Police’s investigation and to give the Niethe family closure.

[15]    You have a history of offending dating back to 1978.  You have multiple convictions for male assaults female and other convictions for violence, breaching protection orders and drug related offending.   However, for sentencing purposes, I remind myself that I have to look at what your record was at the time of your offending.    What  you  did  later  is  not  relevant  to  the  exercises  that  I  have  to undertake.

[16]     You have been assessed as being at moderate risk of re-offending and high risk of harm to others.  This is based on your conviction history and the high level of harm caused by the offending for which I am sentencing you today.

[17]     A term of imprisonment has been recommended.

Approach to sentencing

[18]     I will deal first with the charge of manslaughter.   It is the most serious offence.  What I have to do is set a starting point for the manslaughter charge based only on the offending itself.  Then I will look at your personal factors to see if the starting point should be increased or reduced.  Finally, I will assess the discount you should get for your guilty plea.  Then I will turn to the injuring with intent charges.  I will again set starting points and consider personal factors and guilty plea discounts. The sentences I will impose for the injuring with intent charges will be concurrent with each other but your manslaughter sentence will be cumulative on the concurrent sentence I will impose on the injuring with intent charges.  Once I have calculated the individual sentences, I will step back and assess their total effect. That is to say, I cannot just add all the sentences together if their overall effect would be out of proportion to the totality of your offending.  I will have to make adjustments if that were the case.  I will also have to assess whether any sentence should attract a minimum non parole period.

Principles and purposes of sentencing

[19]     On the charge of manslaughter, I have to take into account that you injected Ms Niethe with an illegal drug.   That requires an emphasis on deterrence.   Put simply, that is such an inherently dangerous act that sentences in this area should be aimed at deterring others from doing the same.  You also concealed your victim’s body.  It has not been found and may never be found.  That calls for a deterrent sentence also and for a sentence which denounces that behaviour.

[20]     The  same  is  true  of  the  two  charges  of  violence.    That  sort  of  violent offending against women within a relationship that should be based on trust and respect calls for sentences emphasising deterrence and denunciation.

[21]     But  sentencing  is  not  just  about  punishment.   The  Sentencing Act  2002 requires a balance to be struck with the need to provide for your rehabilitation and eventual reintegration into the community.  To a large extent, those factors are taken into account in the cases of others who have been sentenced before you for similar offending.  I must try to be consistent with those other cases.

Submissions

[22]    On the manslaughter charge, the Crown has pointed to numerous cases.  A number of the cases show that the generally accepted starting point for manslaughter by administering drugs is around four years’ imprisonment, with some fluctuation depending  on  the  circumstances  of  the  case.    These  cases  include  R  v  Slater,1

R v Cox,2 R v Campbell,3 R v Caswell,4 R v Lawson,5 R v Bielawski6and R v Johns.7

The basic facts of each of those cases is that a consenting victim was injected with a drug, had a bad reaction, and subsequently died.  In none of the cases was there an attempt to dispose of the body.  A common thread of these cases is the importance of consent.

[23]    Mr Douch for the Crown has submitted that your failure to get medical assistance should be a discrete aggravating factor.  However, the Court in the Cox and Lawson cases treated it as the lack of a mitigating factor, and that is what I propose to do.

[24]     The Crown has also pointed to two other cases, R v Bennet8 and R v Hamer9 that resulted in much higher starting points.  But they were also cases that were, I find, quite different from your case.   The levels of culpability relating to the administering of the drug and the circumstances around that administering were different to your case.  However, it is in reliance on those cases that the Crown suggests I should adopt a starting point of eight to nine years.

[25]    Your lawyer submits to me that I should look more closely at the factual situations in the other cases which I have named.  Your lawyer, Mr Mabey QC, adds,

of course, that those cases do not have any component of concealment of a body.

1      R v Slater [1998] 3 NZLR 1 (CA).

2      R v Cox HC Wellington CRI-2008-035-549, 5 March 2009.

3      R v Campbell HC Christchurch CRI-2008-009-012759, 2 July 2009.

4      R v Caswell HC Wellington CRI-2009-085-7797, 4 February 2011.

5      R v Lawson [2012] NZHC 517.

6      R v Bielawski [2012] NZHC 953.

7      R v Johns HC Wanganui CRI-2012-083-1051, 12 April 2013.

8      R v Bennet HC Timaru CRI-2003-076-000923,6 November 2003.

9      R v Hamer CA19/04, 13 September 2004.

[26]     So far as the injuring with intent charges are concerned, both Mr Douch for the Crown and Mr Mabey for you are in agreement.   Each of those offences is serious of its kind and the submissions to me are that each offence should attract a sentence of nine months’ imprisonment, with any reduction being made in relation to the entering of guilty pleas.

[27]     The   Crown   also   seeks   a   minimum   period   of   imprisonment   on   the manslaughter charge.

[28]     Mr Mabey submits that I have to approach your case on the basis that you, as an  adult,  injected  another  adult,  who  was  consenting,  with  an  illegal  drug  that resulted in her death.  I accept that submission.  That is what the law requires me to do.

[29]     Mr Mabey submits also that the fact that you failed to get medical assistance is not a discrete aggravating factor but goes to where the starting point commences having regard to the range of cases I have mentioned.  I accept that submission also.

[30]     One of the disagreements between Mr Mabey and Mr Douch relates to the issue of whether you now know where Ms Niethe’s body is.  The Crown contends that the recorded conversations in 2009 show that you are aware of the location of Ms Niethe’s body.   In order for me to consider this as an aggravating factor, the Crown has the onus to prove beyond reasonable doubt that you are aware of the

location of Ms Niethe’s body.10   The Crown submits that your efficient and effective

disposal of the body and the car, coupled with the October 2009 conversations, makes your persistent denial of knowledge of the location of the body incapable of belief.

[31]     Mr Mabey, in his written submissions, does not dispute that you have stated that you know where the body is.  But he asserts that you do not know where it is because you were under the influence of drugs and you were acting out of shock and panic.  In Mr Mabey’s submission, you have said many contradictory things to many

people at various times, and he has quoted what you have said and referred to the

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

documents in his written submissions.  His written submission to me is that I cannot be sure that you are now concealing the location of Ms Niethe’s body.

[32]     This issue, Mr Pakenham, has been before the Court for some time.  I was asked earlier this year to tell the lawyers how seriously I regard it.  In my Minute of

20 June 2013, I said that my view is that it is your initial concealment of the body to try to avoid culpability, which led to eight years going by before you were arrested, that is the most serious factor.  I said that if it were proven that you know where the body is then that would further aggravate your offence, but not nearly to the extent that  the  concealment  does.     I  would  consider  the  deliberate  concealment  as warranting an uplift of the starting point by six months.

[33]     My ruling on that point meant that if the Crown wanted to have me impose that extra six months it would first have to prove the point beyond reasonable doubt. On 21 June 2013, both lawyers filed a joint memorandum telling me that Mr Mabey was going to take instructions from you, but that if you maintained your position that you do not know where the body is then a disputed facts hearing would be sought.

[34]     Mr Mabey filed his advice to me on 30 June 2013.   In it, he said that no formal hearing is required on the issue.  He said he would address it in submissions on  the  basis  of  matters  already  before  the  Court.     Effectively,  Mr  Mabey’s submission is that on the matters already before the Court I cannot be sure that you know where the body is.  I am surprised by this.  The Crown was clear that it would seek to prove the point.  You said that was not necessary.  Now you say you do not know and I cannot be sure.

[35]     Against this background, I conclude you do know where the body is.  I take Mr Mabey’s memorandum of 30 June 2013 as an admission on your part.   In my view, it is an admission consistent with the recorded conversations of 2009.  It is also consistent with an inference that your concealment of the body and the car must have been well thought out since neither has ever been found.  It is consistent that the next day you were in sufficient control of yourself to go to Ms Niethe’s home and deliver her possessions  to  her daughter,  giving at  that  time the cover story you  would

maintain, publicly at least, for years to come.  Accordingly, I intend to add the six months to the starting point for this matter.

Starting point

[36]     On    the    bare    case    of    killing    Ms Niethe    by   injecting    her    with methamphetamine, I adopt the four years starting point indicated by the line of cases to which I have referred.  Ms Niethe, as an adult, consented to being injected.  You saw her die and did nothing to help her.  That is not an aggravating factor but it gives me no reason to reduce the starting point from four years.  It will be apparent from this that I do not consider your case in these aspects to come within the sort of situation that R v Bennet addressed.

[37]     But, of course, I also have to factor in the concealment of the body and the refusal to reveal its location.   I have looked at two cases where concealment of a body was a factor.  In one, 18 months was adopted as a starting point11  and in the

other case one year’s imprisonment resulted.12     Factually the two cases are quite

different to yours, but they give an indication of the seriousness with which concealment has been treated previously.

[38]     I accept that a motivation for disposing of Ms Niethe’s body was shock and panic,  and  you  were  under  the  influence  of  alcohol  and  methamphetamine. However, fear, panic, and the influence of substances would have subsided at some point, but you still did not tell the family what had happened let alone the authorities. Instead,  you actively denied involvement and only admitted to the events some

10 years later upon being charged with murder.

[39]     I consider that your offending is more akin to an attempt at perverting the course of justice, as the purpose of the disposal and continued concealment was primarily to avoid being caught and to avoid the repercussions of your offending. You were successful in avoiding the consequences for approximately eight years. You have caused a huge amount of pain and distress to Ms Niethe’s family.  As you

have heard today, that pain continues and it will continue.

11     R v Lloyd HC Auckland CRI-1995-088-808007, 17 June 2005.

12     R v Proude HC Auckland CRI-2008-092-001926, 25 May 2010

[40]     If you had been charged separately with attempting to pervert the course of justice by concealing Ms Niethe’s body then the case law states that sentences can be high depending on the facts.  I have looked at a number of these cases and I have concluded that I should, looking at your case with the straight manslaughter element warranting a four years starting point, increase your starting point for this aspect by two years’ imprisonment.  That brings the start point to six years’ imprisonment.  To this I add the six months for continuing to conceal the body’s location, making a final starting point of six-and-a-half years.

Adjusting the starting point

[41]     You have multiple drug convictions.  Four of them are related to cannabis use and cultivation, with the latest of those occurring in 1987.  You have one conviction for possession for supply of methamphetamine.   I note that this occurred in 2008, some five years after the offending for which you are being sentenced today and I will have no particular regard to it.  Indeed, I will not impose any uplift for those convictions – the cannabis offending is historic and looking at the matter overall I do not think that  your record  of convictions  adds  anything that  I should  take into account when setting the starting point on the charge of manslaughter.

[42]     I  will  consider  remorse,  offer  to  make  amends  and  your  guilty  pleas separately.  I do not consider there are any other mitigating factors personal to you that mean that I should discount the sentence.

[43]     So far as remorse and offer to make amends is concerned, I recognise that you made an attempt to partake in a restorative justice conference.   Mr Mabey on your behalf contends that you are entitled to a discount in your sentence pursuant to s 10 of the Sentencing Act.  I take this into consideration, and accept that it was a genuine offer.  However, it was rejected by the victims, and I consider that it cannot be viewed as more than mildly mitigating.

[44]     According  to  the  pre-sentence  report,  you  are  seeking  counselling  in  an attempt to jog your memory.  I have already given my ruling on that.  Even if it were so, you took 10 years to come forward and admit what you have done.  I do not see any genuine remorse in the way that you have approached your responsibilities in

this case.  I do not consider it appropriate to discount your sentence on account of remorse, nor on your belated attempts to make amends.

[45]     That brings me to the guilty plea discount.  The Crown contends that you are only entitled to a discount of 10% to reflect your guilty pleas.  Mr Mabey contends that you are entitled to the full 25% discount.

[46]     The law in this area, the law that binds me, has been set out in a decision of the Supreme Court called Hessell v R.13   It sets out the guidelines for appropriate guilty plea discounts.  This is the appropriate part of the judgment as it applies to you, Mr Pakenham:

[62]     Guilty  pleas  are  often  the  result  of  understandings  reached  by accused and prosecutors on the charges faced and facts admitted. To give the same percentage credit invariable for an early guilty plea in sentencing without regard to the circumstances can amount to giving a double benefit. For example if the Crown agrees to accept a plea to manslaughter and drops a charge of murder in relation to offending, the acceptance of the plea can be a concession in itself. If the full credit for an early plea is then also given, the sentence may not properly reflect the offending.

[47]     In my view, this is the case here.  Manslaughter is a charge included within the charge of murder.  It is always open to an accused person to offer to plead to manslaughter when charged with murder if, that is, the fact of killing is accepted but the existence of a murderous intent is not.   Here, your plea to manslaughter came very late in the piece, even taking into account Mr Mabey’s submissions, and I accept unreservedly the history of advice and work which Mr Mabey has put before me.  But in my view, Mr Pakenham, if I were to give you full credit for your plea it would result in a sentence which would not properly reflect your offending.  I will allow you the 10% reduction conceded by the Crown.  This brings your sentence for the manslaughter of Ms Niethe to five years 10 months’ imprisonment.

Victim Impact Statements

[48]     In reaching the sentence, I have taken into account what is in the victim impact statements.   I need to be clear that  I have looked at them only for the purposes set out in s 17 of the Victims Rights Act 2002.

[49]     I said that I was required to edit two of the victim impact statements.   I wanted to say that I did so because the law requires me to edit them, not because I thought that what was said in the victim impact statements was otherwise invalid.  I need Ms Niethe’s family to understand that the purpose of victim impact statements is to inform me of the effects of your offending on them.  That is why comments on whether   you   are  a  murderer  as   opposed   to   someone  who  has   committed manslaughter are not appropriate to be read out in the Court.  I cannot have regard to them.  It is not about the effects of your offending and must I sentence on the charges which are before me.

[50]     I would also like to say that the dignity of the gentlemen who read their victim impact statements was impressive and hearing what they had to say I hope brought home to you the anguish that you have caused and the ongoing problems and grief that the family will have to endure.

[51]    I think I also need to say this.  In reaching my sentence on the charge of manslaughter, I have not set out to make up to the family for what you have done. Sentencing is not about taking away from the life of one person to make up for the life that they have taken away from another.  Sentencing is about responding to admitted  and  proved  actions  in  a  way  which  is  required  by  the  law.    It  is  to emphasise that that I have gone into more detail than I would normally in discussing the cases in other situations to which I have had regard in setting your sentence.

Injuring with intent

[52]     I turn now to the charges of injuring with intent.  The Crown and Mr Mabey agree that a concurrent sentence of nine months’ imprisonment on each of those charges would be appropriate.

[53]     I have looked at the tariff cases which apply to injuring with intent to injure.14

It is not easy because this offending took place in 1990 and 1992 or thereabouts. Sentencing tariffs were different in those days.  Tariffs have risen since then, but I have to take into account the way the law was at that stage and I also have to take

into account what your criminal record was at that stage, not what it became subsequently.  I do note that at that stage you did have convictions for violence.

[54]     If  I  were  looking  at  this  on  a  standalone  basis,  I  would  consider  an appropriate term of imprisonment for the injuring of Ms Bailey to be nine months’ imprisonment.  I would take the appropriate term of imprisonment for the injuring of Ms Rawlings  to  be  11  months’ imprisonment.    I  recognise  that  the  assault  on Ms Bailey was serious, especially as it appears to have been a prolonged attack.  The reason for the difference in the sentences is that Ms Rawlings was particularly vulnerable as a young woman whose parents were overseas and who had just given birth to your child.  You chose that moment to kick her from behind with such force that her stitches split.  The effects on Ms Rawlings were also significant.  She feared for her life and fled the country.   The victim impact statements from these two women show that your offending against them has had prolonged effects.

[55]     On each of these sentences, I would not adjust for personal factors.  I would, in contrast to the manslaughter charge, give you the full guilty plea discount of 25%. That would reduce the sentences to seven months and eight months respectively.

Totality

[56]     These  would  normally  be  cumulative  on  each  other  because  they  were separate offences against separate people unconnected in time and place.  And normally the manslaughter sentence would be cumulative on those two sentences. But there is such a thing as the totality principle.  That means that before I confirm the sentences against you, I have to step back and look at your situation as a whole. I have to decide whether adding 15 months to the five years and 10 months for the manslaughter would yield, on a cumulative basis, a sentence that would be out of proportion to your overall circumstances.  The cumulative sentence would be seven years and one month’s imprisonment.

[57]     I consider that in all of the circumstances a cumulative total of seven years and one month’s imprisonment would be excessive.  I propose then to deal with your sentencing in this way.

[58]     The sentence on each of the injuring with intent charges will be nine months’

imprisonment concurrent with each other.  The manslaughter sentence is five years

10 months cumulative on the concurrent sentences, making an effective sentence of

six years seven months’ imprisonment, and I so sentence you.

Minimum period of imprisonment

[59]     I now turn to whether a minimum period of imprisonment is required on the manslaughter charge.

[60]     I have decided not to impose a minimum period of imprisonment.  I do that primarily because of the age of the charge and your subsequent life history, including a further history of criminal offending.  I have decided that there is not a particular need to protect the community in regard to the manslaughter charge.  I know that the Parole Board is familiar with you from your criminal history.   The Parole Board knows the risk that you pose and the Parole Board is in the best position to decide how long you should stay in prison now before you should be considered for any form of release.

[61]    The sentences that I have imposed do not address all of the counts in the indictment.  The Crown has said it will offer no evidence in respect of the remaining

counts so I discharge you on those counts. You may stand down.

Brewer J