Skilling v R
[2011] NZCA 462
•16 September 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA154/2011 [2011] NZCA 462 |
| BETWEEN SHAUN TIMOTHY SKILLING |
| AND THE QUEEN |
| Hearing: 7 September 2011 |
| Court: Glazebrook, MacKenzie and Asher JJ |
| Counsel: M Starling for Appellant |
| Judgment: 16 September 2011 at 10.00 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
Introduction
On the night of Thursday 18 February 2010, Gaynor White was asleep in her locked house in Christchurch. The appellant, Shaun Skilling, aged 22, used a tool to open an aluminium window at the rear of the house. On gaining entry to Mrs White’s home he began searching the property with a view to burglary. He came to the upstairs bedroom where Mrs White was sleeping. He struck her repeatedly to the head with a hammer. She suffered 10 blunt force injuries to the left side of her head, behind and below her left ear, and a blunt force injury to the top of her left hand. These blows caused severe injuries and quickly led to her death.
Mr Skilling proceeded to steal various items from the property and load them into Mrs White’s car. He drove the car away. He sold some of the items and drove the car around Christchurch. He made statements to various associates indicating that he had killed someone. In due course he was arrested, and Mrs White’s DNA was found in blood spots and spatters on his sweatshirt.
Mr Skilling pleaded guilty to murder, two counts of burglary and one of unlawfully taking a motor vehicle. He was sentenced by Venning J on 3 February 2011[1] to life imprisonment for the murder and ordered to serve a minimum term of imprisonment of 18 years. On both charges of burglary he was convicted and sentenced to seven years’ imprisonment and on the unlawful taking charge to three years’ imprisonment, with all sentences to be served concurrently. He appeals against the minimum term of imprisonment of 18 years imposed.
[1] R v Skilling HC Christchurch CRI-2010-009-864, 3 February 2011.
Mr Starling for Mr Skilling based his submissions under three heads. First, he argued that the starting point was too high. Second, he argued that no credit or insufficient credit was given for remorse. Third, he argued that no credit or insufficient credit was given for Mr Skilling’s mental health issues.
The starting point
Section 104 of the Sentencing Act 2002 provides that in sentencing an offender who is convicted of murder, the court must order that the offender serve a minimum period of imprisonment of at least 17 years in certain specified circumstances, unless satisfied it would be manifestly unjust to do so. Venning J considered that s 104 was engaged in four distinct respects:
(a)the murder involved the unlawful entry into Mrs White’s home (s 104(1)(c));
(b)the murder was committed in the course of another serious offence, burglary (s 104(1)(d));
(c)the murder was committed with a high level of brutality, in that he hit a defenceless older woman with a hammer about the head and body on a number of occasions, mainly to the head (s 104(1)(e)); and
(d)Mrs White was particularly vulnerable because of her age, the fact that she was alone and asleep in her bed, and the disparity between Mr Skilling’s age and physique and those of Mrs White (s 104(1)(g)).
This assessment was not challenged by Mr Starling, and rightly so. There is no doubt that s 104 applied.
Mr Starling submitted that the Judge, having determined that s 104 was engaged, then considered the s 104 factors afresh as aggravating factors to increase the starting point above 17 years, which involved double counting. In support of his submission that the resultant starting point of 20 years was too high, he referred to a number of cases, relying in particular on R v Goodman.[2] That case, he submitted, involved a similar home invasion and murder, and a lesser minimum term of imprisonment of 19 years was imposed.
[2] R v Goodman HC Wanganui CRI-2006-043-292, 7 December 2007.
Venning J adopted the two-step approach set out in R v Williams.[3] In that case this Court stated:
[52] … First, the Court would consider the degree of culpability of the instant case in relation to that involved in the standard range of murders – that is, apply the Howse approach. In the course of doing so, the Court would take into account in the normal way the pertinent aggravating factors set out in s 104 to the extent they were present, any other applicable aggravating factors, and all those in mitigation. As well, the sentencing Judge would have regard to the policy of s 104 that, in general, the presence of one or more s 104 factors establishes that the murder is sufficiently serious as to justify a minimum term of imprisonment of not less than 17 years. This element is necessary to ensure that effect is given to the legislative policy underlying s 104, which requires Courts at times to impose higher minimum terms of imprisonment than they might have done had s 104 not been enacted.
[53] The sentencing Judge would then decide what minimum term of imprisonment was justified in all the circumstances of the case, including those of the offender. As with cases determined solely under s 103, over time comparisons with other relevant sentences for murder will assist in determination of the appropriate minimum term in s 104 cases.
[54] Where the first step indicates that the appropriate minimum period of imprisonment is 17 years or more, the minimum term must reflect that assessment. In cases where the first step points to a lesser minimum term being justified, the Court would go on to the second step and consider whether to impose a minimum term of 17 years’ imprisonment would be manifestly unjust. If it is, the minimum term must be reassessed to what the Court considers to be justified. …
If s 104 is engaged in several distinct respects a starting point higher than 17 years may well be appropriate.[4]
[3] R v Williams [2005] 2 NZLR 506 (CA) at [52]–[54].
[4] R v Baker [2007] NZCA 277.
In assessing the degree of culpability of Mr Skilling’s offending against the culpability inherent in offending within the “ordinary range”, attracting the statutory norm of 10 years, Venning J considered all the applicable aggravating factors of the offending, including the four distinct s 104 factors noted above. He continued:[5]
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. …
[5] At [28].
Mr Starling submitted that the aggravating features personal to Mr Skilling “would result in an uplift to the s 104 17 year starting point but not by three years”. With respect, this and Mr Starling’s submission in relation to double counting misconceives the Judge’s approach. Venning J arrived at a minimum term of imprisonment of 20 years in a single step by reference to all the applicable aggravating factors. Foremost, clearly, were the four distinct respects in which s 104 was engaged, the combination of which themselves warranted a minimum term of imprisonment significantly in excess of 17 years. They were not counted twice. The features personal to Mr Skilling were undoubtedly additional aggravating features and the Judge was right to take them into account.
In accord with the approach set out in R v Williams the Judge had, further, surveyed a number of authorities where there had been home invasions and murders of elderly occupants where minimum terms of between 15 and 20 years had been imposed. There was no inconsistency between the minimum term of 19 years imposed in Goodman after trial and a starting point for the minimum term in this sentence of 20 years. There were some differences in the facts of each case and there will always be a range in which the minimum term can be fixed.
There was a particular need to denounce such a brutal and needless crime, and to protect the community from Mr Skilling. We are satisfied that the starting point of 20 years was within the available range for a minimum term.
Remorse
Venning J noted the Supreme Court’s observations concerning remorse in Hessell v R.[6] Remorse must be genuine remorse involving a feeling of guilt for having done something morally wrong and a feeling of sorrow for having committed the offence. There must be an acceptance of responsibility. He concluded that the expressions of remorse were more directed at the situation faced by Mr Skilling, rather than constituting a genuine acceptance of guilt.
[6] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
Mr Skilling had written a letter to Mrs White’s family shortly before the sentencing accepting his responsibility and expressing his sorrow and regret. This appears to be an entirely genuine statement. However, it had to be balanced, as Venning J noted, against Mr Skilling’s actions after the offending which indicated no genuine remorse.
The Judge had before him the pre-sentence report in which Mr Skilling stated to the probation officer that he did not commit the murder. The officer noted that while Mr Skilling appeared remorseful and said he felt sorry for the victim’s family “[h]is insight must be questioned however, as he denies the murder offence …”. He was assessed as being at high risk of further offending.
Given these factors it was entirely open to the Judge to conclude that Mr Skilling had not exhibited sufficient remorse warranting a discount.
Mental state
Mr Starling asserted that Mr Skilling had low lying psychiatric and addiction issues and prior to the murder had been deteriorating both personally and mentally. He argued that there should have been a discount for his mental state.
A mental disorder falling short of exculpating insanity may be capable of mitigating a sentence if it is causative of the offending or renders less appropriate or more subjectively punitive a sentence of imprisonment.[7] It has been observed:[8]
The moderation of culpability follows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend.
[7] E v R [2011] NZCA 13 at [68].
[8] Ibid (footnotes omitted).
There was no material before the Court indicating that Mr Skilling was suffering from any mental disorder that could be seen as lessening culpability. There was before the Court a detailed report from Dr Mark Earthrowl, a consultant forensic psychiatrist, discussing whether Mr Skilling was mentally impaired within the meaning of the Criminal Procedure (Mentally Impaired Persons) Act 2003, prepared on the assumption that there would be a trial. He concluded that Mr Skilling was not exhibiting a disease of the mind. While referring to a previously diagnosed condition of attention deficit hyperactivity disorder, it was his opinion that the features of his condition were unlikely to be of significant relevance at the material time of the offending. It is the general tenor of his report that changes to Mr Skilling’s behaviour in the weeks preceding the offending, and in particular some low grade paranoia that he was showing, were a consequence of drug and alcohol use. There was nothing to indicate a causative mental disorder. Further, where consumption of alcohol or drugs exacerbates a mental disorder and is likely to increase the risk of offending, a discount may not be warranted.[9]
Conclusion
[9] See R v Abraham (1993) 10 CRNZ 446 (CA) at 449.
Venning J deducted two years on account of the guilty plea, reducing the minimum term from 20 years’ to 18 years’ imprisonment. The Crown case against Mr Skilling was very strong. Given that allowances for pleas of guilty in s 104 cases have generally been confined to one to two years,[10] Venning J’s credit was generous. The reason was perhaps reflected in his observation that there should “be little, if any, credit for diminished responsibility in this case”. Some credit indeed appears to have been given, considering the two year deduction. The end minimum term of imprisonment was within the range available to the learned Judge and the appeal must be dismissed.
Result
[10] R v Baker [2007] NZCA 277 at [27]; R v McSweeney [2007] NZCA 147 at [10].
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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