R v Skilling HC Christchurch Cri-2010-009-864

[2011] NZHC 24

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-009-000864

THE QUEEN

v

SHAUN TIMOTHY SKILLING

Counsel:         C J Boshier for Crown

T W Fournier and A Bailey for Prisoner

Judgment:      3 February 2011

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Christchurch

T Fournier, Christchurch

R V SKILLING HC CHCH CRI-2010-009-000864 3 February 2011

[1]      Shaun Timothy Skilling, at the age of 23, you are for sentence having pleaded guilty to the murder of Gaynor Alice White.   You are also for sentence on two charges of burglary and one of unlawfully taking a motor vehicle.

[2]      As a preliminary matter I want to acknowledge the presence in Court of Mrs White’s family and friends.   The victim impact statements that you have read in Court and the other statements that have been filed with the Court give the Court some idea of the extent of the loss and the impact that the murder of Mrs White has had on you.

[3]      As I have said when imposing previous sentences for murder, the sentence that this Court imposes, in this case on Mr Skilling, is society’s response through the judicial system to his action of killing Mrs White.  It is not meant to be and could never be a measure of the value of her life.

[4]      Mr Skilling, the circumstances of your murder of Mrs White and your other offending are as follows.  Overnight on Thursday 18 and Friday 19 February 2010 you rode your bicycle to Huntsbury Hill and went to her home.  Mrs White was a widow.  She was 62 years old.  She lived on her own in her home on Huntsbury Hill.

[5]      You went to the rear of her home and broke a security latch on the window frame.  You then searched the address and went to an upstairs bedroom where she appears to have been asleep.   Once there you struck her about her head with a hammer.  You struck her a repeated number of blows with the hammer.  The blows quickly led to her death.

[6]      The scene examination does not suggest there was any struggle.  It is likely Mrs White may only have awoken momentarily, if at all, from her sleep before losing consciousness as a result of the severe head injuries she sustained at your hands.   There was no evidence of any assault or struggle.   She suffered 10 blunt force injuries to the left side of her head, behind and below her left ear causing severe head trauma.  She also suffered a blunt force injury to the top of her left hand which had split the skin.  It has not been established whether you took the hammer to

the address with you or whether you armed yourself with it after breaking into her home.

[7]      Having killed Mrs White you covered her head with an item of clothing and left the hammer lying on the floor.   You then searched her property.   You took a Nintendo game machine and accessories, computer monitor, a digital photo frame, assorted jewellery and a Sony 40 inch LCD television.  The television was removed from a bracket.  You loaded all these items into the victim’s car and then left, closing the garage door behind you.

[8]      Early in the morning of Friday 19 February 2010 you then sold the television, Nintendo game machine, computer monitor and some jewellery to an associate.  You took $100 as part payment.   You washed  yourself before leaving again in Mrs White’s car.  You continued to use her car throughout the day.  You visited a number of your associates.  You drove them around Christchurch in her car.  You told them you had the loan of the car which you said belonged to your nana.   During the afternoon you sold some more of Mrs White’s jewellery to a jeweller in Riccarton. During that day you also made a number of comments in relation to the burglary and murder.  You told one associate you had hit some woman on the head with a hammer and that they would see about it on the news in a week.  You told a second associate you might have just killed somebody and that they would see it on the news in a few days.  You commented to another:  “I think I have gone too far, I am going to jail, I will be in jail next week.  I think I’ve killed someone”.

[9]      At about 4 o’clock on the Friday afternoon the victim’s body was found by her son and one of her friends.   It is difficult to imagine the scene that must have presented itself to them.  They had gone to her address to check on her after she had failed to make an appointment earlier that day.

[10]    The next day, 20 February, you were located by the police.   You were interviewed about the murder and the circumstances of the burglary.  You admitted going to the address to get money, searching it and taking the television.  You denied murdering Mrs White but acknowledged that you saw she had suffered severe head

injuries.  You denied making the comments to your various associates that I have referred to.

[11]     A scene examination of the victim’s home and car located evidence linking you with the murder.  The victim’s DNA was found in blood spots on your shoes and in blood splatters on a sweatshirt found under a seat in her car.  Your DNA was also found on that sweatshirt.  You were charged with murder, burglary of Mrs White’s home and unlawfully taking her car.

[12]     The day before that assault on Mrs White, on 17 February, you had burgled another home in Huntsbury Avenue.

[13]     The sentence for murder is life imprisonment unless such a sentence would be manifestly unjust.  It is not suggested that anything other than life imprisonment is the appropriate sentence in this case.

[14]     The only remaining issue in this sentencing exercise is the extent of the minimum non-parole period the Court must impose as part of that sentence of life imprisonment.  The minimum non-parole period must be at least 10 years.  Section

104 of the Sentencing Act requires the Court to impose a minimum term of at least

17 years if certain circumstances exist unless satisfied it would be manifestly unjust to do so.

[15]     Before considering that issue I refer briefly to your personal circumstances.

[16]     You were born and raised in Christchurch, the youngest of three children. Your father died when you were 13.  You struggled with the loss of your father.  It seems to have affected you. You fell into a bad group and began offending.

[17]     You say you are close to your mother and sisters.   Your mother is now supportive of you and visits you regularly.  You have a two year old son to an ex- girlfriend.  You were living apart from your girlfriend during the month before the murder.  You were sleeping rough near her home, associating with other criminals and using a number of illegal drugs.  At the time of the offending you had a serious

drug addiction problem.  You would use whatever drugs were available, including heroin, morphine, and methamphetamine.

[18]     Previously you had worked as a tiler until a motor bike accident in 2008 caused serious injury to your arm.

[19]   You have a number of previous convictions, including convictions for aggravated robbery, injuring with intent to injure, assault and showing intent to use a weapon.  At the time of this offending you were serving a sentence and were subject to intensive supervision. You were also on bail at the time on an unrelated matter.

[20]     The particularly relevant purposes of sentence in this case are:

•to hold you accountable for the harm done to the deceased, to the victims of the offending and the community by the crime of murder, also to provide for the interests of the victims of the offence;

•to promote a sense of responsibility for and acknowledgement of the harm that you have caused by your actions;

•to  protect  the  community.    In  that  regard  I  note  the  probation  officer’s assessment that you are at a high risk of reoffending.

•      to denounce your conduct and to deter similar serious offending.

[21]     In relation to that last aspect I note there have been a number of incidents of the murder of vulnerable or elderly or retired people in their homes over recent years in this country.  In Goodman[1] the victim was an 83 year old widow living alone. The prisoner entered her home to commit burglary.   She knocked the victim to the ground, fracturing her skull and then stabbed her five or six times in the chest.  A minimum period of 19 years’ imprisonment was imposed after trial.

[1] R v Goodman HC Wanganui CRI-2006-043-292, 7 December 2007, Cooper J.

[22]     In R v Ah You[2]  the prisoner entered the home of an 80 year old victim to commit burglary or robbery, and inflicted multiple blows on her when the victim tried to call the police.  The victim was found semi-conscious by family members but later died in hospital. A sentence of 20 years was imposed, again after trial.

[2] R v Ah You HC Auckland CRI-2008-092-019108, 4 June 2010, Wylie J.

[23]     In R v Job[3] a 17 year old offender went to a 70 year old widow’s home.  He broke in.  When she demanded he leave he hit her several times with a bottle and placed her in a headlock.  She lost consciousness and died.  In that case the Judge ultimately imposed a sentence of 15  years, being particularly influenced by the offender’s age and psychiatric reports which suggested diminished responsibility.

[3] R v Job HC Whangarei CRI-2009-029-001324, 7 October 2010, Andrews J.

[24]     In R v Churchwood and Te Wini[4] two young female offenders broke into a 78 year old victim’s house to steal money.  The victim was asleep in bed at the time. They armed themselves and beat him to death.  But for their age a minimum period of imprisonment of 19 to 20 years would have been appropriate.   Ultimately the figure imposed was 17.

[4] R v Churchward & Te Wini HC Tauranga CRI-2008-270-361, 18 December 2009, Venning J.

[25]     In this case a number of the circumstances identified as aggravating features in s 104 are present.   The murder involved the unlawful entry into Mrs White’s home.   It was committed in the course of another serious offence, burglary.   The murder was committed with a high level of brutality in that you hit a defenceless older woman with a hammer about the head and body on a number of occasions, mainly to the head.  Further, in my judgment, despite Mr Fournier’s submissions it can be said the victim was particularly vulnerable because of the circumstances of this case, including her age, the circumstances you found her in, alone, asleep in her bed and the disparity between your ages and physique.

[26]     In R v Williams[5]  the Court of Appeal suggested the Court could approach consideration of the appropriate minimum non-parole period by assessing the degree of culpability of the particular case, taking into account aggravating features set out in s 104 to the extent they are present, other applicable aggravating factors and any

mitigating factors.   But in doing so the Court should have regard to the policy of s 104 that Parliament confirmed when enacting it, namely that the presence of one or more of  those  factors  establishes  the murder  as  sufficiently serious  to  justify a minimum term of not less than 17 years.  The Court of Appeal confirmed that if the first step indicates the appropriate minimum period of imprisonment is 17 years or more then the minimum term must reflect that assessment.

[5] R v Williams [2005] 2 NZLR 506 (CA).

[27]     The Crown submit that in the circumstances of this case a start point of between 21 and 22 years would be appropriate while acknowledging that there must be a reduction from that for your guilty plea.  Defence counsel has submitted that the imposition of a minimum term of 17 years would be manifestly unjust in this case and argues for the imposition of a minimum non-parole period of less than 17 years, taking account of your guilty plea and other factors.

[28]     Apart from the aggravating factors of the offending itself in this case and those encapsulated by s 104, there are the further aggravating features personal to you that I have referred to, namely that the murder was committed while you were subject to a sentence of supervision and on bail for another offence.  You also have previous convictions, including for violence.  With those features, and having regard to the authorities I have referred to, an appropriate start point for the minimum non- parole  period,  taking  account  of  the  circumstances  of  this  offending  and  your personal aggravating features but before considering any mitigating factors, would

be 20 years.  I note the Court of Appeal in R v Baker[6] accepted a start point of higher

than the minimum of 17 may be appropriate if s 104 is engaged in several respects as I have found it to be here.  Finally, while only a relatively minor point in the context of this case, you are also for sentence on the unrelated charge of burglary.

[6] R v Baker [2007] NZCA 277 at [23].

[29]     The personal mitigating factors that may be potentially relevant in this case are any suggestion of diminished responsibility, remorse and your guilty plea.

[30]     Section 9(2) of the Sentencing Act requires the Court to consider whether you had diminished intellectual capacity or understanding so that your responsibility was in some way at the time diminished.  Your counsel has obtained a report from Dr

Earthrowl, a consultant forensic psychiatrist.  In his opinion you do not present with either  a  major  mental  disorder  or  intellectual  disability.    You  are  not  mentally impaired within the meaning of the Criminal Procedure (Mentally Impaired Persons) Act 2003.  Nor were you exhibiting a disease of the mind within the meaning of s 23 of the Crimes Act at the time of the offending.  The psychiatrist concludes that at the time of this offending you found yourself with drug dependency issues of escalating severity which caused behavioural disturbance and personality change within you which in turn lead to your estrangement from your support.  This was exacerbated or made worse by the difficulties within your relationship and in relation to access to your son.  You were living rough and becoming increasingly despairing and isolated but importantly, in his opinion, none of that would have substantially altered or affected your judgment at the relevant time.

[31]     It seems at least an attempt was made on your behalf to seek some help for you.  In the weeks before the offence you talked of having murderous thoughts of killing yourself and others. Your grandfather took you to hospital. You were refused admission however because you were heavily intoxicated on drugs.  Your problem was diagnosed as drug addiction rather than a mental health issue.  The psychiatrist’s report effectively confirms that diagnosis.

[32]     It also seems you failed to take the opportunity of treatment for your drug and alcohol addiction that was available to you as part of previous sentences.

[33]     You also told the psychiatrist you thought you were with others on the day you murdered Mrs White and you would not accept or had no recollection of what you had done to her.  The psychiatrist concludes that that reported amnesia is not consistent with any recognised organic or psychotic cause that would have affected or substantially altered your judgment at the time of the offence.  It is more likely to be of psychological origin and to have occurred afterwards.  In other words, having committed the offending you blacked it out as a coping mechanism.  I conclude that there should be little, if any, credit for diminished responsibility in this case.  To the extent you were demonstrating features of a depressive episode at the time of the offending, as the psychiatrist observes, it was in the setting of your substance dependency, in other words as a consequence of your self-inflicted drug abuse.

[34]     Next there is the issue of remorse.  You have expressed remorse to both the probation officer and also the psychiatrist.   You have also written a letter to the White family.   Counsel has suggested you would make yourself available for restorative justice. In the circumstances of this case, with respect, that is completely unrealistic.  However, the writer of the pre-sentence report notes that despite those matters raised for you, you sought to deny or at least minimise your responsibility for the offending, and questioned your insight and remorse given those denials.

[35]     The Supreme Court have made it clear in Hessell v R[7] that there should be a considered discount for genuine remorse, but as this Court has noted on previous occasions to be genuinely remorseful requires a deep regret, a guilt for doing something morally wrong, a feeling of sorrow for having committed an offence as well as an acceptance of responsibility for that.  Your actions, after the offending of selling the deceased’s possessions, using her car and boasting of your actions to associates were not those of a remorseful person at that time.   In this case your expressions of remorse at this late stage are in my judgment more directed at the present  situation  you  face,  rather than  genuine  remorse  and  acceptance  of  your actions.   I am not satisfied that you have truly yet exhibited remorsefulness.   I do accept that you have accepted responsibility for your actions to the extent of your guilty plea but that is another matter and of course you will receive credit for that.

[7] Hessell v R [2010] NZSC 135.

[36]     The major factor in your favour is the guilty plea.  In that context I note the case against you was frankly an overwhelming one subject only to any medical or insanity defences.   Your  guilty plea  followed  the  completion  of  the  psychiatric report.   I accept that in the circumstances the guilty plea followed that report and after counsel was properly able to discuss your position with you.  It is appropriate, as the Court of Appeal and Supreme Court have confirmed, to provide a discount or a reduction in what otherwise would be an appropriate minimum non-parole period to recognise a guilty plea.  It is not so much a matter of providing relief to you but rather providing, as a matter of principle, a reason for guilty pleas to save the State the cost of trials and to acknowledge that a guilty plea relieves the victims of the further stress associated with a trial.  So I take the guilty plea into account and apply a reduction to the minimum non-parole period accordingly.

[37]     Mr Skilling please stand.   For the murder of Mrs Beverly White, you are convicted and sentenced to life imprisonment.  You are to serve a minimum term of imprisonment of 18 years.

[38]     On both charges of burglary you are convicted and sentenced to seven years’ imprisonment.    On  the  charge  of  unlawfully taking a  car  you  are  sentenced  to imprisonment for three years.  All sentences are to be served concurrently.   Stand

down.

Venning J