R v Smail Ca196/06

[2006] NZCA 253

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA196/06

THE QUEEN

v

ERIC NEIL SMAIL

Hearing:28 August 2006

Court:Robertson, Arnold and Ellen France JJ

Counsel:E M Thomas and C C Inglis for Crown

T W Fournier for Respondent

Judgment:15 September 2006 at 10 am

JUDGMENT OF THE COURT

A        LEAVE TO APPEAL IS GRANTED.

BThe sentence imposed in the High Court is quashed.  Mr Smail is sentenced to life imprisonment with a minimum period of imprisonment of 13 years.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       The Solicitor-General seeks leave to appeal the sentence of 12 years’ imprisonment with a non-parole period of seven years imposed on Eric Neil Smail by Fogarty J after he pleaded guilty to murder.

[2]       The Judge in sentencing described the factual circumstances as:

Eric Smail you have pleaded guilty to murdering Mr Keith McCormick at Sumner, on 28 July 2005.  He was sitting in his wheelchair. Using a knife, you inflicted six stab wounds of various sizes to the left side of his neck, close to the angle of the jaw, one of which stabs caused major injury.  You also inflicted a large slash type cutting wound to the front of the throat.  The combined effect of these wounds was a sudden loss of blood supply to the deceased’s brain causing virtual immediate fainting, with unconsciousness occurring in seconds, and death within a few minutes at most.

[3]       Fogarty J concluded that it would be manifestly unjust to impose a minimum term of imprisonment of 17 years under s 104 of the Sentencing Act 2002 and to impose a sentence of life imprisonment under s 102(1) of that Act.

[4]       The Solicitor-General submits that life imprisonment should have been imposed under s 102, that s 104 applied, and that in any event a minimum non-parole period of seven years was manifestly inadequate. 

Facts

[5]       Mr McCormick and Mr Smail had known each other for about 20 years and were close friends.

[6]       Mr McCormick, who was 56, was a paraplegic because of a diving accident in 1971.  After falling from his wheelchair he became a tetraplegic in 2000. 

[7]       From 2000 Mr McCormick was periodically cared for by Mr Smail.  This developed into Mr Smail being the regular Saturday night carer.  The men became flat-mates in November 2004 with Mr Smail taking a larger role in the care of Mr McCormick being the caregiver on duty from 4.30pm to 7.30pm Mondays through to Thursdays.  Shortly thereafter Mr McCormick was hospitalised.  He came back to live with Mr Smail about three weeks prior to his death.  The respondent resumed responsibility for the deceased’s care in the evenings and overnights, but Mr McCormick was cared for by others during the day.

[8]       On the day of the murder, Mr Smail had been drinking with friends from 10am.  He told the police he decided to kill the deceased while he was sitting in a bar in the middle of the afternoon.  He discussed this plan with friends who did not believe him.

[9]       After drinking in several bars, he went home at about 6pm.  Following a brief innocuous conversation, the respondent went to the kitchen, uplifted a 300mm Wiltshire knife and stabbed Mr McCormick in the neck and slashed his throat while he was sitting in his wheelchair watching TV.  The wounds resulted in a sudden loss of blood which caused the deceased to immediately faint, loose consciousness within seconds and die within a few minutes.  Mr Smail immediately phoned friends and told them what he had done but did not attempt to get medical help.

[10]     About 7pm the police were advised of the death in a 111 call made by Mr Smail’s sister who had gone to the house following a call she received.

[11]     Confronted by a police officer, Mr Smail immediately said he had killed Mr McCormick. 

[12]     During pre-trial stages of the criminal process, on 22 March 2006, the respondent pleaded guilty.

Life imprisonment

[13]     Section 102 of the Sentencing Act 2002 provides:

102Presumption in favour of life imprisonment for murder

(1)An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.

[14]     The presumption in favour of life imprisonment is a high one and the statutory regime confers a limited discretion not to impose life imprisonment where the offending is at the lowest end of the range of culpability for murder: R v Williams [2005] 2 NZLR 506 (CA) at [34]. Although the phrase “manifestly unjust” is not defined in the Act, it requires an assessment to be undertaken of the circumstances of both the offender and the circumstances of the offending having due regard to sentencing purposes and principles.

[15]     As the Chief Justice noted in R v Rapira [2003] 3 NZLR 794 (CA) at [121], for the presumption to be avoided, the injustice must be clear as required by the use of the word “manifestly”. Her Honour specifically referred to the comments of the Minister of Justice on introduction of the Sentencing and Parole Reform Bill (Hon Phil Goff MP (14 August 2001) 594 NZPD 10911) when it was said:

However, in a small number of cases, such as those involving mercy killing, or where there is evidence of prolonged and severe abuse, a mandatory life sentence is not appropriate.  Under this legislation, the court will be able to consider a lesser sentence.

[16]     The Crown submits Fogarty J erred in concluding that the circumstances of this case fell within that limited range.  They advance two main arguments:

(a)the extent of the stress suffered by Mr Smail as flatmate and part-time carer was not high; and

(b)the act of murder in this case cannot be described as a mercy killing.

[17]     Fogarty J concluded, and on the totality of the evidence we agree, that this could not be described as a mercy killing.

[18]     Mr Fournier stated that this case was the same type as R v Law (2002) 19 CRNZ 500 (HC) where a 77 year old man killed his wife of 50 years who was suffering from the advanced stages of Alzheimer’s disease.  They had previously agreed to “do each other in” if either fell victim to Alzheimer’s disease.  Here, Mr Fournier said, the respondent believed that the killing was in his friend’s best interests.

[19]     Despite the commendable concern which Mr Smail had for his friend, the stress which he felt and his perception that life had become hopeless for Mr McCormick, we do not see this matter as having any probative similarity to the facts in Law. 

[20]     Fogarty J had regard to some United Kingdom jurisprudence and the concept of non-technical provocation.  This concept relates to the situation where the deceased’s conduct has not provoked the caregiver, but the condition of the deceased causes significant stress which has the effect of reducing the caregiver’s self control in a manner akin to the lack of self-control experienced when provoked.  We do not view the facts in that way.

[21]     While Fogarty J found that Mr Smail was suffering from accumulated stress, he did not make any finding that Mr Smail had been exposed to prolonged and unsupportable stress.  The reports of the psychiatrist and psychologist describe the respondent as suffering only from mild depression and would not support any finding of prolonged and unsupportable stress.

[22]     The psychiatrist report stated that the amount of alcohol consumed by Mr Smail would have some disinhibiting effect.  Fogarty J found that the influence of alcohol, when mixed with the accumulated stress suffered by the respondent, led to the killing.

[23]     The Crown encouraged us to view Mr Smail’s consumption of alcohol as an aggravating factor.  While it cannot be a mitigating factor, we are not persuaded that it is anything but neutral in this case.

[24]     Having carefully reviewed all the material which was available in the High Court, we find that there is an inevitable conclusion that Mr Smail was not driven to the depths of despair, nor acted impulsively nor with significantly diminished responsibility.  He was certainly suffering from a degree of stress arising from his part-time caring responsibilities and it is unquestionable that his alcohol intake during the day had a disinhibiting effect on him.

[25]     The fact that the men were long-term friends and Mr Smail may have reached the view that Mr McCormick would have been better off dead, does not suffice to displace the presumption in favour of life imprisonment created by s 102.  Such a sentence should have been imposed.  That must always be the first inquiry undertaken.

Minimum non-parole period

[26]     Section 103 requires that where imprisonment for life is imposed, the Court must order that the offender serve a minimum term of imprisonment which may not be less than ten years.

[27]     As is relevant in this case, s 104 provides:

Imposition of minimum period of imprisonment of 17 years or more

The Court must make an order under section 103 imposing a minimum period of imprisonment of at least 17 years in the following circumstances, unless it is satisfied that it would be manifestly unjust to do so:

…

(e)if the murder was committed with a high level of brutality, cruelty, depravity, or callousness;

…

(g)if the deceased was particularly vulnerable because of his or her age, health, or because of any other factor; or

…

[28]     Before Fogarty J it was argued that the circumstances of the offending came within these two subsections.  The Judge rejected the applicability of s 104(e).  That potential classification has not been reasserted before us.

[29]     Mr Thomas, however, argued that s 104(g) must apply.  The Judge appears to have accepted that Mr McCormick was a vulnerable person, but concluded that it would be manifestly unjust to sentence Mr Smail to life imprisonment with a starting point of a minimum of 17 years’ imprisonment.

[30]     Mr Fournier submitted that, when a purposive approach is taken to the interpretation of s 104(g), it is clear that the paragraph does not apply in the instant case.  He argues that the list of factors in s 104 were inserted by Parliament as a catalogue of aggravating factors that increased the degree of culpability for murder.  He asserts that the vulnerability of a victim must be assessed in this light.  He asserts that, in the present case, the victim was not targeted for murder because of his vulnerability, rather the vulnerability of the victim was the primary cause of the murder as in a mercy killing.  Accordingly he asserts that the vulnerability of Mr McCormick cannot be viewed as an aggravating factor.

[31]     We are not satisfied that such an interpretation is warranted here.  The murder of Mr McCormick cannot be viewed as a mercy killing and even if it were, it would not affect the interpretation of s 104.  If the murder was a genuine mercy killing, the presumption in favour of life imprisonment under s 102 would almost certainly have been displaced.  Accordingly there would be no need to consider s 104.  As we have decided that the presumption in s 102 applies, there is no reason to read s 104(g) other than in accordance with its plain meaning.  We are satisfied that the killing of Mr McCormick falls squarely within s 104(g).  He was in a vulnerable position as he was not able to defend himself in any way or evade attack.

Would a minimum period of 17 years’ imprisonment be manifestly unjust?

[32]     Justice Fogarty was not required to make an order in relation to s 103 as he had not imposed a sentence of life imprisonment.  He did impose a minimum non-parole period and in doing so did address the factors listed in s 104.  However, given our finding that a life sentence is warranted, we must follow the statutory requirements more closely.

[33]     On this aspect of the appeal, Mr Thomas correctly assessed the position when he said:

There is a two-stage approach under s 104.  Firstly, the Court must consider the degree of culpability in relation to the standard range of murders, applying aggravating and mitigating factors, and having regard to the policy of s 104, to determine what minimum term of imprisonment would be justified in all the circumstances.  Where a minimum term of 17 years or more is indicated, the sentence must reflect that assessment.  Where a lesser term is indicated, the Court must consider whether the imposition of a term of 17 years would be manifestly unjust.  If it is, the minimum term must be reassessed to what is considered justified.

The legislative framework requires that the minimum period may not be departed from lightly. 

[34]     As we have found that s 104(g) applies in this case, a minimum term of 17 years’ imprisonment is indicated.  The issue therefore becomes whether a minimum period of 17 years would be manifestly unjust.  The Crown conceded that the circumstances in this case were such that it was open to the Court to find that a 17 year minimum term would be manifestly unjust.

[35]     Mr Thomas submitted that the salient features in the present case were:

(a)a significant breach of trust with the victim being killed by a person who was his friend and caregiver;

(b)the victim was particularly vulnerable being confined to a wheelchair and unable to move below the neck so he had no way of escaping or fending off the attack; and

(c)the killing was premeditated.  It was not an impetuous act but involved a degree of calculation and planning.

[36]     Mr Fournier, in response, relied on the various circumstances which had been highlighted by Fogarty J including:

(a)the fact that Mr Smail was now 49 and may never be released from prison;

(b)a guilty plea had been entered after the Judge had advised counsel that he was unlikely to permit provocation to be put before the jury;

(c)the long-term ill-health of the deceased;

(d)Mr Smail had no previous convictions for violence;

(e)a long-standing friendship between the two men;

(f)Mr Smail had provided attentive care for Mr McCormick over many years;

(g)Mr Smail had a tendency towards stress and anxiety with poor internal coping strategies and had taken on more than he could cope with; and

(h)Mr Smail believed his actions were in the best interests of Mr McCormick.

[37]     Mr Fournier also stressed that there was an absence of:

(a)       a malicious revenge-type killing;

(b)multiple killings and/or other violent attacks;

(c)frenzied random killings; and

(d)a high level of brutality or callousness and premeditation.

which have been significant factors in those cases where minimum periods of 17 years or more have been imposed.

[38]     Consistent with the statutory regime and having regard to other cases where manifest injustice has been found, we are satisfied that the 17 year presumption is displaced in this case.  As we have noted, this was acknowledged by Mr Thomas.  The critical question is what is the appropriate minimum period of imprisonment.

[39]     The cases which have considered this issue include:

(a)R v Williams in which a stepfather “snapped” and murdered a vulnerable stepdaughter.  There was stress from external factors including consumption of methamphetamine and lack of sleep.  This Court increased the minimum term from 15 to 17 years and held that no question of manifest injustice arose.

(b)R v Olson HC CHCH CRI-2004-00900-0338 11 March 2004 (determined in this Court at the same time as Williams) in which a very close friend living with the victim killed him in a premeditated attack, taking the victim by surprise and denying him any opportunity of defending himself.  The Court recognised that, but for s 104, a minimum term significantly less than 17 years might have been imposed.  It was held that because of the age of the offender and the early guilty plea, 15 years as imposed by the sentencing Judge should not be interfered with.

(c)R v Mackness HC HAM TO23921 14 April 2003, in which a stepfather who kicked his 12 year old stepdaughter in the head twice after she refused to eat her dinner after she had been sick.  He then locked her in her room where she lost consciousness and died.  These circumstances did not rebut the statutory presumption even though the death involved reckless and unpremeditated murder.

(d)R v Li HC AK TO24483 15 December 2003, in which there was a murder of a son after a lethal build up of frustration and anger as a result of disintegration of the marriage and the wife’s withdrawal of support for a residency application.  Chambers J concluded that, notwithstanding the particular vulnerability, the appropriate sentence was life imprisonment with a non-parole period of 14 years.

(e)R v Harrison-Taylor HC AK CRI-2004-092-001510 12 September 2005, in which a sentence of life imprisonment with a non-parole period of 12 years was imposed on a mother who had a limited ability to cope, caused by a borderline personality disorder which made her vulnerable to stress, was suffering from sleep deprivation and chronic pain and “snapped” hitting her baby and suffocating and/or strangling him.

(f)Finally, R v Paul CA496/05 1 August 2006 where this Court held that the presumption of 17 years had not been rebutted for the murder of a 14 month old baby by a caregiver who had delivered a single unpremeditated fatal punch to the baby’s stomach.

[40]     We have concluded that the offending in the present case is more serious than Harrison-Taylor but not as reprehensible as that in Li.  Further, we do not overlook the fact that there was a guilty plea and that this is a Solicitor-General’s appeal.  The minimum period of imprisonment should be 13 years.

Result

[41]     The application for leave to appeal is accordingly granted.  The sentence imposed in the High Court is quashed.  Mr Smail is sentenced to life imprisonment with a minimum period of imprisonment of 13 years.

Solicitors:
Crown Law Office, Wellington
T W Fournier, Christchurch, for Respondent