R v Smith - [2019] NZHC 1910

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2019-083-375

[2019] NZHC 1910

THE QUEEN

v

LORRAINE SMITH

Hearing: 7 August 2019

Appearances:

M M Wilkinson-Smith for Crown

C P Brosnahan and L Scott for Defendant

Date:

7 August 2019

SENTENCING OF COOKE J

[1] Lorraine Smith has pleaded guilty to one charge of murder of her granddaughter, Kalis, aged 13 years.1 She appears for sentencing.

[2] Counsel for Ms Smith submits that in the circumstances it would be manifestly unjust to impose a sentence of life imprisonment, and a finite sentence in the realm of 10 to 12 years ought to be imposed.

[3] Counsel for the Crown seek a sentence of life imprisonment. The Crown submits that a minimum period of imprisonment of 17 years pursuant to s 104 may be manifestly unjust, and a lesser minimum period of imprisonment of 10 to 14 years is sought.

1 This offence constitutes Ms Smith’s first strike under the three strikes regime and she was issued with a first strike warning by Simon France J when conviction was entered.

R v SMITH [2019] NZHC 1910 [7 August 2019]

Factual background

[4] Ms Smith is 59 years old. This is her first offence. Kalis and her 16 year old brother lived with Ms Smith. Kalis had been raised by her since she was five months old.

[5] The facts of the offending itself are set out in the summary of facts. On Friday 15 March 2019 Ms Smith drove from her home address to pick up Kalis from a sporting event. They left the event together at 5 pm and returned to their home. Kalis’s brother was also at home that day.

[6] At home, Kalis and Ms Smith began arguing in Kalis’s bedroom. Kalis’s brother could hear them arguing. He heard Kalis say “let go of me, stop pushing me down, I can’t breathe I can’t breathe” and Ms Smith replying “You want to die anyway don’t you”. He heard Ms Smith repeatedly telling Kalis to sit down. Kalis went into the lounge and sat on the couch with her head down. Ms Smith went and sat on another couch and watched television.

[7] Some time later, after dinner, another argument began, this time about Ms Smith wanting to confiscate Kalis’s electronic devices. Kalis threatened to run away. Ms Smith told her to help her collect the washing from the clothes line outside. Ms Smith threatened to drag her outside if Kalis did not help her.

[8] After collecting the washing together the two continued to argue inside the house. Ms Smith then asked Kalis to go outside with her to help close the windows in the outdoor sleepout. As they walked outside, Ms Smith picked up a neck tie from the kitchen table. Kalis walked to the sleepout, closely followed by Ms Smith. Once inside, Ms Smith approached Kalis from behind and pulled the hood of the sweatshirt she was wearing…

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 Smith

Details

AGLC: R v Smith [2019] NZHC 1910
Case: [2019] NZHC 1910
Decision Date: 7 August 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Lorraine Smith stands convicted of the murder of her 13-year-old granddaughter, Kalis. Smith, who has no prior criminal record, pleaded guilty to the charge. The court was tasked with determining whether a sentence of life imprisonment would be manifestly unjust, and if so, to determine an appropriate finite sentence. Counsel for Smith argued for a sentence of 10 to 12 years, while the Crown sought a sentence of life imprisonment with a minimum term of 10 to 14 years. The court considered Smith's personal circumstances, including her role as the primary caregiver for her disabled son and three grandchildren, and her own declining mental health. Despite these mitigating factors, the court recognised the seriousness of the offence and the vulnerability of the victim. The court concluded that while life imprisonment would be manifestly unjust, a finite sentence was necessary to reflect the gravity of the crime. The court imposed a sentence of 12 years' imprisonment with a minimum term of six years, balancing the mitigating circumstances with the need for denunciation, deterrence, and community protection.

The reasoning of the court was grounded in the principle that life imprisonment is the standard response for murder, reflecting society's condemnation of taking another life. However, the court acknowledged the exceptional circumstances of this case, where Smith's overwhelming personal and emotional burdens led to the tragic outcome. The court drew parallels with previous cases where finite sentences were imposed due to factors such as mental health issues, post-traumatic stress disorder, and premeditation. In this case, the court found that the circumstances, while exceptional, did not align perfectly with any prior case but warranted a finite sentence due to the compelling mitigating factors and the low risk of reoffending. The court determined a starting point of 14 years, reduced by two years for the early guilty plea, resulting in a final sentence of 12 years' imprisonment with a minimum term of six years. This decision aimed to address the serious nature of the crime while considering Smith's personal and mental health challenges.

Orders