R v Whiu

[2007] NZCA 591

IN THE COURT OF APPEAL OF NEW ZEALAND

CA195/07
[2007] NZCA 591

THE QUEEN

v

MARJORIE TIHI OMOERANGI WHIU

Hearing:31 October 2007

Court:O'Regan, Arnold and Wilson JJ

Counsel:W C Pyke and S K Green for Appellant

A Markham for Crown

Judgment:20 December 2007 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Arnold J)

Introduction

[1]       This is a motor manslaughter case.  On the morning of trial, the appellant entered guilty pleas to one count of manslaughter by dangerous driving and one count of causing injury while driving with excess blood alcohol.  Williams J sentenced her to a term of imprisonment of seven and a half years on the manslaughter count and disqualified her from driving indefinitely.  On the other count the Judge sentenced the appellant to imprisonment for two and a half years and disqualified her from driving for three years.  The sentences were to be served concurrently.

[2]       The appellant appeals against sentence.  Focussing on the manslaughter sentence, she advances two grounds.  First, she says that the starting point adopted was too high (the tariff issue).  Second, she says that the Judge gave inadequate weight, whether in terms of assessing culpability or by way of mitigation, to the effect of post-traumatic stress disorder arising from battered women’s syndrome (the battered woman issue).

[3]       The appeal came on for hearing before a Criminal Appeal Division on 30 August 2007.  The Division determined that the appeal should be heard by the Permanent Court.  Accordingly that fixture was vacated and a new date was allocated. 

[4]       In the intervening period, Mr Pyke, counsel for the appellant, filed further submissions and provided extensive additional material on sentencing in motor manslaughter cases and on battered women’s syndrome.  The Crown also filed further submissions.  We are most grateful to both counsel for the extensive work that they have undertaken in relation to this appeal.  The submissions and materials provided were both comprehensive and helpful.

Factual background

[5]       At the relevant time, the appellant was in a relationship with a Mr Kaneri.  She was 25.  The couple lived in Hamilton.  Like her previous partner, Mr Kaneri subjected the appellant to regular physical and verbal abuse. 

[6]       On the morning of 18 August 2005, Mr Kaneri asked the appellant to take him to a friend’s house in Fairfield, a suburb of Hamilton, in her car.  He had been drinking overnight and wanted to continue.  The appellant complied.  She joined in the drinking at the friend’s house.  About mid-afternoon, Mr Kaneri asked the appellant to drive him to another friend’s house.  The appellant reluctantly agreed.

[7]       When they arrived the appellant waited in the car while Mr Kaneri went and drank with his friends.  The appellant waited for one and a half to two hours.  When Mr Kaneri came out, the appellant complained about the amount of time that he was taking.  Mr Kaneri was by this stage heavily intoxicated and became very aggressive.  He punched one of the windows of her car with his fist, smashing it.  The car was something of which the appellant was very proud.   She became angry and told Mr Kaneri that their relationship was over.  She refused to drive off.  Mr Kaneri began to assault her.  Some friends drew up in a car and attempted to assist her, but Mr Kaneri frightened them off.

[8]       By this time it was about 5pm, and peak hour traffic was building up.  Mr Kaneri told the appellant to drive him to another destination.  He hit her in the face, and continued to hit her as she was driving.  As she sought to avoid his blows, the car went erratically from one side of the road to the other.  At one point, Mr Kaneri tried to grab the steering wheel to direct the car back onto the right side of the road. 

[9]       During this part of the journey, the appellant hit a car that had stopped at a pedestrian crossing, travelled on the wrong side of the road, exceeded the speed limit, overtook cars on the wrong side and at a pedestrian crossing, drove on the footpath and generally caused other vehicles and pedestrians to take evasive action.

[10]     Eventually Mr Kaneri directed the appellant to drop him off at his grandmother’s house.  Once she had dropped him off, the appellant drove away.  She continued to drive in an erratic and alarming fashion.  During this part of the journey, the appellant made illegal turns, passed vehicles by going onto the wrong side of the road and into the path of oncoming traffic and exceeded the speed limit (she reached speeds of almost 100kph in a 50kph zone).  She also drove through a red traffic light, collided with various vehicles and drove along the footpath. 

[11]     Ultimately she reached the street in which she and Mr Kaneri lived, Tawa Street.  It was about 5.15pm.  A vehicle driven by the deceased, who also lived in Tawa Street, was making a legal right hand turn into the driveway of a friend’s house.  The deceased was 16 years of age and had a 16 year old passenger in his car.   As he made the turn, the appellant attempted to overtake him.  The front of her vehicle hit the driver’s side of his vehicle at a speed estimated to have been in excess of 100kph.  The deceased, who was in no way contributorily culpable, sustained serious injuries and later died in hospital.  His passenger sustained severe head and kidney injuries, and spent six days in hospital.

[12]     Immediately after the collision the appellant left the scene and walked to her home.  There she got changed before going to a neighbouring address, where she hid.  The Police located her shortly after.  At 6.49pm when she had a blood test, the appellant had a blood alcohol level of 134mg of alcohol per 100ml of blood.  (The legal limit is 80mg.)

[13]     The total length of the car journey was about 9km.  Mr Kaneri was in the car for a little over half of it.  The journey took place in rush hour traffic and mostly in 50kph speed zones.

Discussion

[14]     As we have said, the appeal raises two issues - the tariff issue and the battered woman issue.  We deal with each in turn.

The tariff issue

[15]     As is apparent from the following extract from his sentencing notes, Williams J adopted an initial starting point of eight to nine years, and then increased that to nine to ten years to take account of several aggravating features.  The features identified were the duration of the driving, the number of breaches of the road rules, the degree of intoxication and the appellant’s previous convictions. 

[16]     Williams J referred to the decision of this Court in R v Skerrett CA236/86 9 December 1986.  In that case the Court analysed sentencing trends to that point in relation to motor manslaughter, and approved a list of aggravating and mitigating factors derived from R v Boswell [1984] 1 WLR 1047 (CA). The Judge then said:

[39]     In looking for the appropriate starting point for the length of sentence to be imposed, I have to say that by any measure this is a prolonged period of appalling driving.  Even before Tawa Street it involved repeated damage to vehicles and frightening behaviour in respect of many other road users.  And, as the Crown emphasises, one of the disturbing features is that after Mr Kaneri alighted from the vehicle, only about half way through driving, you continued on in the same fashion for about another four kilometres.  You may have post-traumatic stress disorder; you may have battered women’s syndrome; you may have had an unfortunate history but it is unfathomable, it is incomprehensible why, when he got out of the car, you didn’t just drive around the corner and stop and compose yourself.  Perhaps your appreciation was damaged by the amount of alcohol you had drunk, or by your background, or by simply your desire to get home.  But it is impossible to understand why you did not just stop.

[40]     You are not to be sentenced for the other offences I have detailed, the driving offences, but they are all part of the narrative which led you to be where you were, when you were, in the state you were at the time of the impact with [the victim’s] car.  You caused one death and serious injury to two young men of promise, young men who were mature enough to have shown they had potential to contribute significantly to this world – but were robbed of that chance.

[41]     Looking just at the manner of your driving, in my view the appropriate starting point is of the order of eight to eight and a half years’ imprisonment, perhaps nine.

[42]     The aggravating features – making it worse – are the length of the driving, particularly the four kilometres or so after Mr Kaneri got out of the car, the number of breaches of the rules, your previous convictions and your alcohol level.  That suggests that before allowance for the mitigating features the appropriate term of imprisonment should be of the order of nine to 10 years.

[17]     Mr Pyke submitted that since Skerrett Judges have incrementally lifted sentences in motor manslaughter cases.  He analysed a number of sentencing decisions in this area in an effort to identify the factors that have influenced the courts to impose higher sentences in particular cases.  He then attempted to assess the starting point adopted by Williams J against the aggravating features identified. 

[18]     Mr Pyke argued that the starting point adopted by the Judge of eight to nine years, increased to nine to ten years to take account of aggravating factors, could not be justified.  Referring in particular to the sentence imposed by Williams J in R v Solo HC NWP CRI 2004-043-3158 3 December 2004, but also to other sentencing decisions, Mr Pyke argued that the appropriate starting point was between six and eight years imprisonment.  He submitted that there was an element of double counting in the Judge’s analysis of the facts in this case, specifically, the manner of driving mentioned by the Judge at [41] and the length of the driving and the number of rule breaches mentioned at [42] (see [16] above).  This, he said, led the Judge to assess the driving as being more serious than it was.

[19]     Mr Pyke provided us with a helpful compendium of cases, and with a thoughtful analysis of them.  Despite that, we do not propose to accede to his invitation to write what would in effect be a guideline judgment in this area.  This Court has thus far refused to do that in relation to manslaughter generally: see the discussion in R v Leuta [2002] 1 NZLR 215, especially at [43]-[66]. While it may be that it is possible to fix tariffs for particular forms of manslaughter such as motor manslaughter, we do not consider that we should attempt that now. We say this because the legislation establishing the Sentencing Council has been enacted (see the Sentencing Council Act 2007, ss 5-9) and that body will have the responsibility for developing such guidelines. It should have the time, expertise and resources for the task.

[20]     As to the starting point in this case, we agree with Mr Pyke that there has been a hardening of the courts’ attitude to this type of offending since Skerrett.  This was recognised by this Court in R v Grey (1992) 8 CRNZ 523 at 525, where the hardening was attributed to the continuing road toll, the repetition of personal tragedies and the growing sense of public outrage.  We consider that a starting point in the region of nine years was justifiable in light of the circumstances and nature of the offending, albeit that it is at the upper end of the range.  The driving at issue occurred over some 9km.  It involved many different breaches of the road rules, including excessive speed and grossly dangerous driving.  The driving took place in peak hour traffic and posed a serious threat to all those on the road at the time.  Tragic though one death is, it is miraculous that there were not more.  Apart from the number of fatalities or serious injuries, it is difficult to imagine a worse example of dangerous driving.  Further, the appellant was badly intoxicated, having been drinking for a lengthy period beforehand.  All these are circumstances of the offending which require a high starting point.

[21]     There is one respect in which we differ from Williams J.  In increasing the starting point of eight to nine years to nine to ten years to reflect aggravating factors, the Judge took account of the appellant’s previous offending.  Putting to one side offences which incorporate prior offending as a matter of definition, the orthodox approach is to fix the starting point by reference to the circumstances of the offending, including the aggravating or mitigating features going to that (see R v Taueki [2005] 3 NZLR 372 at [28] (CA)). Once that is done, aggravating or mitigating factors arising from the offender’s personal circumstances are taken into account in order to fix the end sentence. It is at this second stage that previous convictions would typically be taken into account.

[22]     In the circumstances of this case, the difference of approach does not ultimately make any difference.  This is because when considering the appellant’s personal circumstances, we would take account of the fact that she has three previous convictions for driving while under the influence of alcohol and two for other driving offences and would add one year to the nine year starting point to reflect that.  The result is much as that determined by the Judge.

[23]     This then leaves the issue of mitigating personal circumstances, primarily the appellant’s (last minute) guilty plea and her post-traumatic stress disorder resulting from battered women’s syndrome.  We now turn to that.

The battered woman issue

[24]     The appellant has been involved in de facto relationships with two men, each of whom has regularly abused her, both verbally and physically.  While he was a passenger in the car for the first part of the journey leading to the accident, Mr Kaneri assaulted the appellant, causing severe bruising and swelling to her face.  (We were advised that Mr Kaneri has not faced charges as a result of his actions, which he has admitted.  This is surprising.) 

[25]     Mr Pyke argued that the evidence showed that the appellant was a battered woman.  He posed two issues for consideration.  The first concerned the point at which this factor should be taken into account at sentencing – did it go to culpability (ie, to the fixing of the starting point) or was it a personal mitigating factor?  This he described as the policy issue.  The second concerned the mode and standard of proof when battered women’s syndrome is raised as a mitigating factor, which he described as the process and proof issue.  We deal with each point in turn.  Before we do so, however, we summarise the expert evidence as to the appellant’s condition.

The appellant’s condition

[26]     An experienced clinical psychologist, Ms Trenberth, interviewed the appellant on two occasions several months after the events at issue.  She also interviewed the appellant’s mother and sister and spoke to the appellant’s general practitioner.  In addition, she had access to a range of material relevant to the case.

[27]     Ms Trenberth prepared a lengthy written report.  Her assessment of the appellant’s mental condition is found in the following extract from that report:

In assessing [the appellant’s] mental status it was critical to differentiate between the impact of the accident, the legal proceedings, and any pre-existing disorder/s.

…

At interview [the appellant] displayed marked signs of depression including crying, pacing, pressured speech and distractibility.  Her mood was labile, for the most part dysphoric.  This mood alternated with periods of animation, usually when she mentioned her daughter.  She reported depressive symptoms including sleep disturbance, psychomotor agitation, decreased energy, feelings of guilt, difficulty concentrating, slowed thinking, indecisiveness, and suicidal ideation.  Her family described her as having become significantly withdrawn.  There were additional post-trauma symptoms including intrusive thoughts, avoidance of triggers, and autonomic arousal.

These signs and symptoms were consistent with diagnoses of Major Depressive Disorder and Post Traumatic Stress Disorder.  The onset of these disorders had been following the combined accident and assault on her.  They were attributable to a combined sense of horror at the death of the other driver, the seriousness of her own predicament, and the physical and psychological assault on her.  She repeatedly referred to her sadness at the loss of life, and the impact on the surviving family of the other driver.

Underlying this depression it was apparent that [the appellant] had been functioning in a state of Post-Trauma for some time prior to the accident, attributable to the domestic violence.  Essentially this had involved a psychological state alternating between fear, hypervigilance and dissociation.

[The appellant’s] presentation and verbal evidence, therefore, were clearly indicative of Post Traumatic Stress Disorder and Major Depressive Disorder arising from the accident, and chronic Post-Trauma Disorder with symptoms specific to the mental state that has been termed “Battered Woman Syndrome”.

(Emphasis added.)

[28]     Ms  Trenberth summarised her conclusions as follows:

[The appellant] was assessed to identify her mental status and any psychological factors that may have been relevant to her driving on the day of the fatal accident.

She presented in a clear state of post-trauma and depression secondary to the accident and ensuing circumstances.  She presented with chronic post-trauma symptoms specifically associated with long-term domestic violence.  [The appellant’s] psychological history was consistent with these diagnoses.

In terms of the accident it was concluded that [the appellant’s] decisions had been made in the context of her post-trauma state of altered cognitive and emotional responses.  In addition to this longer-standing psychological state, at the time of driving the car [the appellant] was acting under extreme threat, pain and terror.

These factors were seen to be highly significant to the events of the day in question.  The relevant dynamics have been outlined in the main body of the current report.

(Emphasis added.)

[29] This report, while helpful, is not as useful as it might be. Ms Trenberth expresses the opinion that the appellant suffered from post-traumatic stress disorder as a result of battered women’s syndrome, and describes common characteristics of those who suffer that condition. But she does not relate those characteristics to the appellant’s behaviour on the day in question with any specificity. While recognising that “it was critical to differentiate between the impact of the accident, the legal proceedings, and any pre-existing disorder/s” when assessing the appellant’s mental status, Ms Trenberth expresses most of her conclusions in terms which combine all three: see the italicised passage from her report in [27] above. In terms of the relationship between the appellant’s condition and the driving at issue, the italicised passage in the extract at [28] above is as far as Ms Trenberth takes it.

[30]     This is important because, however they are described or categorised, the appellant’s characteristics or symptoms must be related to what occurred if they are to have any significance in terms of her sentencing.  As we understand it, Ms Trenberth’s view is that there was some causal relationship in the sense that the appellant’s decisions on the afternoon in question were affected by her post‑traumatic stress disorder and the assault she had endured from Mr Kaneri.

The policy issue

[31]     The argument advanced by Mr Pyke under this head had, as we understand it, two critical elements:

(a)The proper approach is that articulated in the Law Commission’s Report Some Criminal Defences with Particular Reference to Battered Defendants (NZLCR 73 2001) and accepted by this Court in R v Suluape (2002) 19 CRNZ 492 at [13]-[14].  It is that the relevant question is not whether an accused suffers as a matter of psychiatric diagnosis from battered women’s syndrome, but whether the abusive experiences to which she has been subjected have materially contributed to the offending.

(b)The point at which relevant abusive experiences should be taken into account is in the assessment of culpability at the outset (ie, the fixing of the starting point), rather than at the point when mitigating circumstances personal to the offender are assessed.  This, Mr Pyke argued, gave better recognition to the dignity of the woman involved and was less demeaning of her and her experience.  The difference was, he said, between a person operating under reduced capacity, and therefore being less culpable, and a person being treated more leniently as a matter of clemency or mitigation.

[32]     We do not consider that it is necessary for us to address these points in any detail.  We accept the first point, in the sense that we agree that it is not necessary for there to be a formal diagnosis of battered women’s syndrome before prolonged abuse suffered by a woman at the hands of a partner or family member can be taken into account on sentencing.  The critical point is that, whatever label is used, there must be evidence which supports the view that prolonged abuse suffered by an offender materially contributed to her offending.  Typically a psychiatrist or psychologist would give such evidence, and where it exists, it should be taken into account like any other relevant factor.  Often in cases where this issue arises the victim of the offending will be the abuser, as was the case in Suluape.  In some cases, the offender will have committed the offence at the direction or under the control of the abuser (see, for example, R v Mahaki & Te Moni CA309/97 & CA287/97 8 April 1998).  But those are not requirements and the issue has been accepted as being relevant to sentencing in cases where the abuser had no involvement in or connection with the offending (see, for example, R v Howells CA213/95 11 August 1995). 

[33]     As to the second point, we do not see that the stage in the process at which the battered woman’s relevant characteristics or symptoms are taken into account has the significance that Mr Pyke seeks to attribute to it.  The approach that this Court has developed over time requires that the offending and its characteristics be considered first so as to produce an initial sentence, and then that adjustments be made to that figure to reflect the personal circumstances of the offender.  This approach has been adopted to facilitate principled and transparent decision-making, and to promote consistency and assist the appellate process.  We see no reason to depart from it in this context, and certainly do not see taking account of the effect of long-term abuse as a mitigating factor rather than at the initial stage as demeaning the experiences of those who suffer such abuse.  As Ms Markham noted, other psychological and behavioural conditions are dealt with in this way and there is no reason of principle to treat post-traumatic stress disorder arising from battered women’s syndrome differently.

[34]     In our view, then, the important point is that the sentencing process should take account of the characteristics or symptoms of those who suffer such abuse where they are relevant, rather than the particular stage at which that is done.  Ultimately what matters is the end sentence.  It is that which must reflect all relevant factors relating to the offending and the offender.

The process and proof issue

[35]     In part, Mr Pyke’s argument under this head dealt with the question of approach that we have identified at [31](a) and [32] above.  We will not say anything more about it here.

[36]     The remainder of Mr Pyke’s argument addressed the question of mode and procedure of proof.  He noted that in this case there was one expert report before the Court, that of Ms Trenberth.  The Crown had not called any expert evidence itself, nor had it sought to dispute Ms Trenberth’s opinion, either by cross-examining her or by seeking to challenge the facts on which her opinion was based.  As a result, he said, no issue of proof actually arose in the present case.

[37]     It is true that Ms Trenberth’s opinion was not challenged.   As we have said, we consider that her opinion has some limitations.  However, we accept that it was relevant to sentence, as did Williams J.  In those circumstances, all we propose to say about proof is this.  If an offender wishes to argue that she has suffered prolonged abuse at the hands of a partner or family member and that this has contributed materially to her offending and so is relevant to sentence, she will have to point to an evidential basis for the submission.  The evidence will need to address the underlying facts of the abuse, its impact on the offender and the way in which it is said to have made a material contribution to the offending.  As Ms Markham noted, the Sentencing Act 2002 deals with the processes to be followed on sentencing, including proof of facts (see s 24 of the Act and following).

[38]     Mr Pyke referred us to an article, Kinports “Deconstructing the Image of Battered Women” (2004) 23 St Louis U Pub L R 155, in which battered women’s syndrome is described as “simply a convenient way of describing a set of characteristics that are common to many (but not all) battered women” (at 170).  This emphasises the need for evidence which addresses the particular offender’s characteristics and their relationship to the events at issue.

End sentence in this case

[39]     Having taken account of the aggravating features relevant to the offending and the offender, the Judge said that an appropriate term of imprisonment was between nine and ten years.  He then applied a discount to reflect the appellant’s expression of remorse and her personal circumstances, principally the abuse which she suffered at the hands of Mr Kaneri.  He said that a discount of between 20 and 30 per cent should be allowed to reflect those circumstances.  He then fixed an end sentence of seven and a half years for the manslaughter conviction.

[40]     The essence of Mr Pyke’s argument was that the Judge did not take sufficient account of the effect of the appellant’s experience as a battered woman on her offending.  In his written submissions, he said:

…[T]he report of Ms Trenberth sets out in considerable detail, in a well reasoned analysis, why the appellant was in “flight mode” (counsels’ colloquialism) after Mr Kaneri left the car.  The reason for her offending was the domination and beating from [Mr] Kaneri, combined with her response arising from her experiences as a battered woman – that she did not behave as other people might do, and “drive around the corner and stop and compose” herself, is understandable.

[41]     Mr Pyke argued for a starting point of six to eight years, a reduction of three to four years on account of reduced culpability and a further reduction of one year for other mitigating factors.  This would produce a final sentence of somewhere between two and four years. 

[42]     We make two points about this:

(a)Mr Pyke’s analysis does not appear to take account of the fact that the appellant has three previous convictions for driving with excess breath alcohol and two other driving related convictions.

(b)More importantly, while Mr Pyke is right that s 8 of the Sentencing Act directs the Court to have regard to the individual culpability of the offender, the Court must also have regard to the purposes of sentencing set out in s 7 of the Act.  These include accountability, denunciation and deterrence.

[43]     We have already said that, taking account of the nature of the offending, a starting point in the region of nine years was justified.  We have also said that that figure needs to be raised by one year to reflect the appellant’s earlier driving convictions.

[44]     In terms of the discount to be applied in respect of the resulting ten year figure, we think that the appellant was entitled to a modest discount (in the order of five to 10 per cent) to reflect her late guilty plea and expressions of remorse.  We consider that the appellant’s condition at the time of the offending justified a further discount of 20 to 25 per cent.  We accept that the evidence supports the view that the fact that the appellant was driving at all that afternoon was attributable in part to her condition as a woman who had suffered prolonged physical and verbal abuse.  When Mr Kaneri directed her to drive to his grandmother’s house, she was conditioned to obey.  We accept also that her erratic driving on that part of the journey may be explained in part by the continuing assault that she was undergoing (although that is not the subject of the charges).  But, as Williams J said, it is less easy to see an explanatory link for her continuing to drive, and continuing to drive so dangerously, after she had dropped Mr Kaneri off.

[45]     Overall, we consider that a discount of 30 per cent was appropriate to reflect all mitigating factors.  This produces an end sentence of seven years.  The end sentence imposed by the Judge was seven and a half years.  While that is at the top of the available range, we cannot say that it is manifestly excessive.

Decision

[46]     Accordingly we dismiss the appeal.

Solicitors:

Crown Law Office, Wellington