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…

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 Skilling v R

Details

AGLC: Skilling v R [2011] NZCA 462
Case: [2011] NZCA 462
Decision Date: 16 September 2011

CaseChat Overview and Summary

In the case of Shaun Timothy Skilling v The Queen, the New Zealand Court of Appeal was asked to consider the minimum term of imprisonment imposed on Mr Skilling for the murder of Gaynor White. The appeal against the 18-year minimum term was dismissed by Glazebrook, MacKenzie, and Asher JJ. The appellant's counsel, M Starling, argued that the starting point for the minimum term was too high, that insufficient credit had been given for the appellant's remorse, and that insufficient credit had been given for the appellant's mental health issues. The Court considered these arguments and found that the starting point for the minimum term was appropriate, as the murder involved unlawful entry, was committed during a burglary, was of high brutality, and the victim was particularly vulnerable. The Court also found that the appellant's expressions of remorse were not genuine and that there was no evidence of a mental disorder that could mitigate the sentence. The appeal was dismissed, and the 18-year minimum term of imprisonment was upheld.

The Court of Appeal found that the starting point for the minimum term of imprisonment was appropriate, taking into account the aggravating factors of the offence, including the unlawful entry, the commission of the murder during a burglary, the high level of brutality, and the vulnerability of the victim. The Court rejected the argument that the starting point was too high, and found that the two-step approach set out in R v Williams was correctly applied. The Court also found that the appellant's expressions of remorse were not genuine and that there was no evidence of a mental disorder that could mitigate the sentence. The Court concluded that the minimum term of imprisonment was within the range available to the sentencing Judge and the appeal was dismissed.
The final orders of the Court were that the appeal against the minimum term of imprisonment imposed on Mr Skilling for the murder of Gaynor White was dismissed. The 18-year minimum term of imprisonment was upheld. The Court of Appeal found that the starting point for the minimum term was appropriate, and that the sentencing Judge had correctly applied the two-step approach set out in R v Williams. The Court also found that the appellant's expressions of remorse were not genuine and that there was no evidence of a mental disorder that could mitigate the sentence.

Orders