Te Wini v R
[2013] NZCA 201
•4 June 2013 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA489/2012 [2013] NZCA 201 |
| BETWEEN | LORI LEAH TE WINI |
| AND | THE QUEEN |
| Hearing: | 9 May 2013 |
Court: | Wild, Chisholm and Keane JJ |
Counsel: | C W Stevenson and E A Hall for Appellant |
Judgment: | 4 June 2013 at 11 am |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
Ms Te Wini appeals against a sentence of life imprisonment imposed on her for murder under s 168 of the Crimes Act 1961.[1] In imposing that sentence, Woolford J fixed the non-parole period at the statutory minimum of 10 years. Somewhat obviously, that aspect of the sentence is not directly challenged.
For reasons based firmly on the culpability of Ms Te Wini as the offender, and not at all on the murder she committed, Ms Te Wini’s counsel submit life imprisonment was a manifestly unjust sentence. They seek substitution of a finite sentence of eight to 10 years imprisonment.
Facts
[1]R v Te Wini [2012] NZHC 1593.
On the night of 24–25 November 2008 Ms Te Wini and her 17-year-old cousin, Courtney Churchward, broke into the home of Mr John Rowe in Opotiki. Their intention was to rob him. Mr Rowe was an elderly retired school teacher who lived alone.
While searching through the house, it seems the two young women disturbed Mr Rowe, who was in bed. The sentencing remarks of Woolford J describe what then happened:
[6] … Fearing the consequences of discovery the two offenders armed themselves with items they found in the sitting room. Ms Churchward handed a long, solid piece of wood, which the victim apparently used as a walking stick, to Ms Te Wini but Ms Te Wini handed this back and instead picked up a thinner piece of wood, more akin to a broom handle. The plan seems to have been to knock the victim out.
[7] The offenders went into the victim’s bedroom with their weapons but hesitated. They returned to the sitting room where they encouraged themselves to proceed with their plan. They then re-entered the victim’s darkened bedroom.
[8] Ms Churchward struck a number of blows to the victim’s head, chest and arms. After that Ms Te Wini joined in and struck the victim several times. Ms Te Wini’s weapon was broken during the assault, although it is unclear whether it was due to the force employed or through contact with the weapon wielded by Ms Churchward.
[9] Exactly how long the attack took or how many blows were struck is not clear but after a short time it seems that the victim, who had tried at one point to raise himself up, fell back onto the pillows and became still. The offenders then dropped their weapons and left the victim in his bed.
[10] They then searched the house and found the victim’s wallet and his car keys. They also ransacked the house in a way that they hoped would cause people to believe the events were a burglary gone wrong. Ms Te Wini and Ms Churchward attempted to start the victim’s car but were unsuccessful. They ultimately climbed back over the fence to Ms Te Wini’s residence.
[11] The offenders took some steps to conceal what happened by throwing away items of clothing worn during the events. They also spent some of the money taken.
[12] The victim was discovered by another neighbour on the morning of 25 November 2008. Mr Rowe was found in his bed with a significant amount of blood surrounding him. He showed no signs of having moved since the attack.
[13] A medical examination disclosed that the victim had suffered a number of injuries. Blows to the head and the face had caused severe facial injuries including broken cheek bones, a number of fractures to the skull and a broken nose. The head injuries were the most probable cause of death which might have taken a number of hours to eventuate. There were also injuries to the hands, fingers and arms showing attempts by the victim to defend himself.
Trial and sentence of the two offenders
Ms Te Wini and Ms Churchward were convicted of murder at trial in November 2009.
Venning J subsequently sentenced each of them to life imprisonment with a minimum period of imprisonment of 17 years.
Ms Te Wini appealed successfully to this Court against her conviction.[2] That appeal, like this one, was founded very much on a report by Dr Elizabeth Myers. Dr Myers is the consultant psychiatrist who was responsible for Ms Te Wini leading up to, during and after her trial.[3]
[2]R v Te Wini [2011] NZCA 279; and R v Te Wini [2011] NZCA 405.
[3]The report before this Court in the June 2011 appeal against conviction was an earlier one. We do not have it. The report by Dr Myers on which this appeal is based is dated 28 June 2012.
This Court held that Ms Te Wini’s counsel should have taken steps to obtain a psychiatric report so that the correct decisions could have been made in relation to trial and sentence. In giving its reasons for allowing the appeal this Court said:
[32] Ms Te Wini’s trial counsel, Mr Gene Tomlinson, did not obtain, either by way of a court order, or privately,[4] a psychiatric report regarding Ms Te Wini. It is submitted that he should have done so. We agree. Counsel was well aware of Ms Te Wini’s psychiatric difficulties. At the very least such a report may have had relevance to her participation in the trial and to sentence, should Ms Te Wini have been convicted.
[4]A private report would have met Mr Tomlinson’s concern as to possible admissions that Ms Te Wini could have made to any report written.
[33] The submission goes further, however. It is submitted that evidence of Ms Te Wini’s psychiatric state should have been called at trial, in particular to negative intent. The report from Dr Myers prepared for this appeal concludes that it is highly unlikely at the time of the offence that Ms Te Wini was able to think through the consequences of her actions, and that it is therefore highly likely that she did not foresee that the assault could potentially result in death.
[34] Dr Myers’ report is not in the form of a brief of evidence and it is thus difficult to make any sensible comment on admissibility. Indeed, Mr Stevenson concedes that parts of the report arguably “go too far” to be admissible. More importantly, however, Ms Te Wini’s psychiatric state was of no relevance to the principal defence actually run at trial – ie that her involvement was not proved. It is not clear what the issue will be in any retrial and any decisions on admissibility at the retrial will need to be made against an understanding of those issues and with a brief of evidence in proper form. We make no further comment on that issue.
A retrial was ordered.
Contemporaneously, this Court dealt with an appeal by Ms Churchward against conviction and sentence. The Court dismissed the appeal against conviction but allowed the sentence appeal, reducing the minimum period of imprisonment from 17 to 13 years.[5] We will revert to relevant aspects of that judgment.
[5]R v Churchward [2011] NZCA 531, (2011) 25 CRNZ 446.
Ms Te Wini then pleaded guilty to an amended indictment, which altered the charge from s 167 to s 168 of the Crimes Act (Ms Te Wini had been convicted under s 167). The latter provides:
168 Further definition of murder
(1)Culpable homicide is also murder … whether the offender means or does not mean death to ensue, or knows or does not know that death is likely to ensue:
(a)if [she] means to cause grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection (2) of this section, or facilitating the flight or avoiding the detection of the offender upon the commission or attempted commission thereof … and death ensues from such injury:
…
(2)The offences referred to in subsection (1) of this section are those specified in the following provisions of this Act, namely:
…
(k) section 234 (robbery)
…
Woolford J’s sentencing remarks disclose a careful, thorough and sympathetic approach. That latter aspect is reflected in the following passage in the sentencing remarks, which was the focus of this appeal:
[66] This case is a particularly sad one for all involved. Ms Te Wini has suffered a great deal as a child and now demonstrates some hope for the future. However, it is hard to get away from those matters addressed in the cases I have cited. The offending is of a similar level of seriousness as Rapira and O’Brien and the Court of Appeal has made it clear that, in such circumstances, exceptional matters both in the circumstances of the offending and the offender will be necessary to displace the presumption. There are also similarities to R v Wihongi in respect of the offender’s traumatic history of victimisation. But in that case there was a tangible link between the offender’s personal difficulties and the result of the offending. No such close link can be shown in this case and the Court of Appeal has made it clear that lesser connections or impairments of function which do not directly relate will be unlikely to affect the presumption. The offender’s age and remorse can only have limited effect as well. The sentence must be one of life imprisonment.
(The emphasis is that of counsel for Ms Te Wini in their submissions.)
We will refer to other parts of the Judge’s sentencing remarks in dealing with the various points on appeal.
Life imprisonment manifestly unjust
Section 102 of the Sentencing Act 2002 provides:
102 Presumption 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.
(2)If a court does not impose a sentence of imprisonment for life on an offender convicted of murder, it must give written reasons for not doing so.
…
Counsel for Ms Te Wini submitted that the jurisprudence around the application of s 102 “is developing”, and that “the Courts appear to be taking an expansive approach” to the circumstances justifying a departure from the s 102 presumption. Counsel cited R v McNaughton[6] and R v Wihongi.[7]
[6]R v McNaughton [2012] NZHC 815.
[7]R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775.
We do not agree with that submission. We consider the jurisprudence is now fairly settled, and the approach to any departure from the s 102 presumption constrained. In his sentencing remarks the Judge referred to all the leading cases, including the two relied on by counsel. He did so in these passages:
[43] The meaning of manifest injustice in this case has been the subject of comment on a number of occasions. There are a number of important Court of Appeal authorities: R v Rapira,[8] R v O’Brien,[9] R v Williams,[10] R v Smail,[11] and R v Wihongi.[12] Sentences other than life imprisonment appear to have been imposed under s 102 in only four cases.[13]
[8]R v Rapira [2003] 3 NZLR 794 (CA).
[9]R v O’Brien (2003) 20 CRNZ 572 (CA).
[10] R v Williams [2005] 2 NZLR 506 (CA).
[11]R v Smail [2007] 1 NZLR 411 (CA).
[12]R v Wihongi.
[13]R v Law (2002) 19 CRNZ 500 (HC); R v Reid HC Auckland CRI-2008-090-2203, 4 February 2011; R v Wihongi and R v McNaughton.
[44] The most recent of the Court of Appeal decisions and one in which a sentence other than life imprisonment was upheld is the case which has been referred to by counsel, R v Wihongi in which the Court observed:
[70] The approach to be taken for the purpose of determining whether it would be “manifestly unjust” to impose a sentence of life imprisonment for the purposes of s 102 was articulated by this Court in R v Rapira in the following terms:
The test is that the sentence of life imprisonment is manifestly unjust. That conclusion has to be made on the basis of the circumstances of the offence and the offender. It is an overall assessment. The injustice must be clear, as the use of “manifestly” requires. The assessment of manifest injustice falls to be undertaken against the register of sentencing purposes and principles identified in the Sentencing Act 2002 and in particular in the light of ss 7, 8 and 9. It is a conclusion likely to be reached in exceptional cases only, as the legislative history of s 102 suggests was the expectation.
[71] The legislative intention is reflected in the speech of the responsible Minister, Hon Phil Goff, at the first reading of the Sentencing and Parole Reform Bill. He said:
A more flexible regime is applied to murder, requiring the Court to take into account mitigating and aggravating factors. The bill retains a strong presumption in favour of life imprisonment for murder. 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.
[72] The report of the Justice and Electoral Committee on the Bill confirmed the position taken by the Minister. In its report, it said:
A very small number [of those convicted of murder] will receive a sentence less than life imprisonment. These may include “mercy killings”, failed suicide pacts and situations in which the accused is termed a “battered defendant”. There is a very strong presumption in favour of life imprisonment for murder in the Bill.
[45] The recent decision of Miller J in R v McNaughton is also worth mentioning. The Judge in that case considered that the responsibility of one of the prisoners, limited as it was to being a minor party to the murder, his remorse and engagement through restorative justice, and the minimum term of imprisonment of 10 years imposed on the principal meant that to impose a sentence of life imprisonment with a minimum period of 10 years would be manifestly unjust due to the disproportionate severity of the sentence.[14]
[14]R v McNaughton at [69].
We consider those passages set out, in a flawless way, the approach a Judge must take when considering departing from the s 102 presumption of imprisonment for life.
Counsel for Ms Te Wini referred to the following comment in the report of the Justice and Electoral Committee on the Crimes (Provocation Repeal) Amendment Bill 2009:[15]
[15]Crimes (Provocation Repeal) Amendment Bill 2009 (64–2) (select committee report) at 2.
While we consider the term “manifestly unjust” is a high threshold, we are confident that the term is flexible enough to capture appropriate cases in which provocation-related factors are present.
Understandably, that observation focused on the partial defence of provocation, which the Bill abolished. Provocation is not a factor here. We do not consider the passage adds anything to the observations made during the passage of the Sentencing and Parole Reform Bill, referred to by Woolford J.
We turn now to consider, in turn, the six factors counsel submitted made the sentence of life imprisonment imposed on Ms Te Wini manifestly unjust.
No murderous intent
Counsel referred to the psychiatric opinion of Dr Myers, one of two psychiatric reports before Woolford J at sentencing. Dr Myers reported that all the information available to her:[16]
[16]Dr Myers’ report of 28 June 2012 at 7.6.
[suggested] Ms Te Wini was already in a state of heightened arousal when she acted impulsively, under pressure from her cousin – “she looked at me, she was angry at me … she asked if I was going to help her or just stand there, so I started wacking him too”.
Counsel argued that Ms Te Wini’s lack of murderous intent distinguished her from Ms Churchward, and this was acknowledged by the Crown in substituting a charge under s 168 of the Crimes Act. They relied on Graham v Florida, where the United States Supreme Court observed:[17]
[17]Graham v Florida 130 S Ct 2011 (2010) at 2016.
[W]hen compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.
We think this submission overlooks that the presumption in favour of life imprisonment in s 102 applies equally to s 167 and s 168 murders. As this Court observed in Kee v R, though in relation to s 104(1)(d):[18]
[18]Kee v R [2011] NZCA 229 at [21].
[21] … It is no answer … to submit that the killing was reckless rather than intentional or that only grievous bodily harm was intended and that the offending only amounted to murder because it was committed in the course of [an]other serious offence. The whole point of s 104(1)(d) is to trigger the 17 year minimum where a murder is committed in the course of a serious offence.
Much the same submission was made to Woolford J on sentencing. The Judge referred to the common law background of s 168, and to its consideration in the Canadian Supreme Court decisions R v Vaillancourt[19] and R v Martineau.[20] The Judge concluded his consideration by noting that this Court in R v Rapira “did not appear to regard the fact that the offenders were convicted under s 168 rather than s 167 as a primary or particularly notable mitigating factor for the purposes of sentencing”.[21]
[19]R v Vaillancourt [1987] 2 SCR 636.
[20]R v Martineau [1990] 2 SCR 633.
[21]R v Rapira at [54].
There is no substance in this point. As the Crown points out, culpability for homicide is established by ss 158 and 160 of the Crimes Act, and ss 167 and 168 then define murder for the purposes of establishing who is liable to imprisonment for life under s 172.
Extreme youth
While accepting that there is no “automatic displacement on the basis of youth alone”, counsel submitted that Ms Te Wini’s age was an obvious consideration when applying the “manifestly unjust” test. They pointed out that Ms Te Wini was “only just” on the cusp of criminal liability, was “a very young, immature and ill-equipped 14 year old”, and that all this impacted on her culpability.
Counsel referred to this Court’s comprehensive consideration of the effect of youth in R v Churchward, the appeal by Ms Te Wini’s co-offender.[22] Counsel also referred to the American case Miller v Alabama.[23]
[22]R v Churchward at [76]–[92].
[23]Miller v Alabama 132 S Ct 2455 (2012).
The Judge agreed that Ms Te Wini’s youth was relevant. He summarised the reasons this Court gave in Churchward for recognising a discount for youth in any particular case. He mentioned Miller v Alabama.
It seems to us that counsel makes no real criticism of the way Woolford J factored in Ms Te Wini’s youth. In any event, we see no basis for criticism. Counsel referred to the jurisprudence of the American Supreme Court, citing Miller v Alabama. That jurisprudence was specifically referred to by Glazebrook J, delivering this Court’s judgment in Churchward v R. She cited Roper v Simmons[24] and footnoted other United States cases. Roper is cited in Miller v Alabama.
[24]Roper v Simmons 543 US 551 (2005).
A last comment under this head. Counsel’s submission that Ms Te Wini was “only just on the cusp of criminal liability” is not really accurate. There is no criminal liability for an act committed by a child when under the age of 10 years.[25] Proof that the child knew “the act … was wrong or that it was contrary to law” is required before a child can be convicted of a crime by reason of an act done between the ages of 10 and 14.[26] Ms Te Wini was born on 2 December 1993, so was a little short of 15 years old when she murdered Mr Rowe on the night of 24–25 November 2008.
[25]Crimes Act 1961, s 21.
[26]Crimes Act, s 22.
Diminished responsibility on account of psychiatric disorder
Counsel stressed that Ms Te Wini suffered from post traumatic stress disorder at the time of the murder, likely the result of serious childhood abuse from a very early age. At the time of her remand in custody she was hallucinating, and there was a history of self harm and suicide attempts. Counsel submitted that she was significantly more affected by mental health issues than was Ms Churchward.
Counsel referred to Dr Myers’ explanation of the impact of post traumatic stress disorder on executive function – the set of cognitive abilities that control and regulate abilities and behaviours. The important progress and development of decision-making competence occurs in late adolescence. Prior to that development, young people are poor evaluators of risk. Counsel cited this passage from Dr Myers’ report:[27]
[27]Dr Myers’ report of 28 June 2012 at 7.6.
The combination of Ms Te Wini’s youth, her early onset substance abuse, past history of trauma and current depressive illness and PTSD would have contributed significantly to executive functioning difficulties. In particular, Ms Te Wini is likely to have had an impaired ability to control her impulses, to monitor and change her behaviour as needed, and to adapt to changing situations, as well as a clear picture of Ms Te Wini demonstrating emotional dysregulation.
Two other factors at play were then identified by counsel:
(a)Ms Te Wini’s strong relationship with her cousin, which was likely, in the highly charged situation at the time of the offence, to have resulted in her giving primacy to pleasing her cousin, joining in hitting Mr Rowe with a stick; and
(b)the likely effect of hot cognition – a heightened autonomic arousal which further affects executive functioning and accounts for impulsive behaviour. Counsel noted the reference to this in Churchward:
[51] He [Dr Chaplow] notes that diminished decision-making ability amongst adolescents is exhibited with regard to “hot” processing (that is, in real life, coercive situations), and can be attributed to the fact that adolescents are less efficient than adults in processing information and lack life experience.
Next, this Court’s judgment in R v Wihongi[28] was relied on, and that in R v Rapira[29] distinguished in terms of the appeals by Mr Peihopa and by Ms Rawiri. Counsel sought to liken Ms Te Wini’s level of mental impairment to that of Ms Wihongi, but emphasised the additional factors here of extreme youth and lack of murderous intent.
[28]R v Wihongi, above n 7.
[29]R v Rapira, above n 8.
In the case of the appellant Ms Rawiri in R v Rapira, counsel emphasised this Court’s observation:[30]
[30]At [120].
There was no link between the earlier abuse suffered by Rawiri and the crime. Rawiri was a full participant whose greater insight does not overcome the grave circumstances of the offending to make the imposition of a sentence of life imprisonment for murder manifestly unjust.
There is nothing in any of this that was not considered by Woolford J, and in some detail. In particular, he cited at some length from this Court’s decision in Rapira, in particular that part dealing with Ms Rawiri. He referred also to this Court’s decision in R v O’Brien, where a girl, almost the same age as Ms Te Wini at the time of the offending, murdered a man with hammer blows to his head, so she could take his car. The appellant suffered mild intellectual disability and had problems of substance misuse. Rejecting Ms O’Brien’s appeal that a sentence of life imprisonment would be manifestly unjust, the Court said this:[31]
[31]R v O’Brien, above n9, at [36].
There may be cases where the circumstances of a murder may not be so warranting denunciation and the mental or intellectual impairment of the offender may be so mitigating of moral culpability that, absent issues of future risk to public safety, it would be manifestly unjust to impose a sentence of life imprisonment. This is not such a case, particularly when the circumstances of the offence, which must be considered along with the circumstances of the offender, demonstrate premeditated brutality.
The Judge referred also to Wihongi. We refer to that below at [41] in dealing with the “victimhood” factor.
A section of the Judge’s sentencing remarks was devoted to the two psychiatric reports available for sentencing. Part of the Woolford J’s summary of Dr Myers’ report included this:
[29] Dr Myers makes a number of observations about the distinctive function of child or adolescent brains but the general thrust of Dr Myers’ report is to note the effect that childhood trauma, depression and substance abuse would have had on Ms Te Wini’s brain development and the executive functioning of her mind. Dr Myers believes that these features of Ms Te Wini’s life would have had a considerable impact on her decision-making, risk perception, appreciation of the consequences of her behaviour and her ability to make decisions when under conditions of strong emotion.
We have already referred, above at [27]–[29], to this Court’s consideration in Churchward of the effect of youth. The Judge’s summary indicates that he had considered Churchward carefully.
We are unable to fault the Judge’s assessment of Ms Te Wini’s mental impairments, in the passage we have set out above at [12]. In particular, we see no fault in Woolford J’s conclusion that there was not a sufficiently close connection between Ms Te Wini’s impairments and the murder to affect the s 102 presumption of imprisonment for life.
“Victimhood”
Under this head counsel sought to liken Ms Te Wini to Ms Wihongi, in that Ms Te Wini “has suffered gross abuse by those charged with providing her the entitlements of a safe and stressfree childhood”. This submission is not tenable. In referring to “victimhood” in Wihongi, this Court was referring to the fact that Ms Wihongi had suffered abuse at the hands of her victim, Mr Paretini. Ms Wihongi and Mr Paretini had been in a longstanding relationship, although they were not living together at the time she murdered him. He was the father of five of her six children. The Court said this:
[88] In Ms Wihongi’s case, her “victimhood” involving abuse suffered from others which, in combination with the abuse suffered at the hands of the victim, led to her suffering post-traumatic stress disorder is an additional factor. We consider that this history of abuse contributed to the extreme reaction Ms Wihongi had to the situation confronting her immediately before the events leading to the victim’s death. The history of abuse, at the hands of the victim and others, when added to the intellectual deficits to which we have already referred support the displacement of the presumption of life imprisonment.
Here, there was no suggestion that Ms Te Wini had suffered abuse at the hands of Mr Rowe. The only connection between the two was that he was an elderly neighbour of Ms Te Wini’s family – “the ‘old man’ who lived over the back fence of Te Wini’s property”.[32]
Parity
[32]Crown summary of facts at sentencing at [7].
The submissions under this head were obviously directed to “delineating the culpability” of Ms Te Wini from that of Ms Churchward. In addition to emphasising the “principal” role of Ms Churchward in murdering Mr Rowe, counsel emphasised the difference in age and that Ms Churchward had dominated the relationship between the two young cousins for some years. They referred to Child Youth and Family notes from March 2007 recording that Ms Te Wini refused to attend an interview without Ms Churchward being present, and that Ms Churchward took control of the interview and did much of the speaking for Ms Te Wini.
Counsel likened Ms Te Wini’s role in the offending to that of Mr Cunnard in R v McNaughton,[33] and to that of the secondary offender in R v Slade.[34]
[33]R v McNaughton, above n 6.
[34]R v Slade [2005] 2 NZLR 526 (CA).
Counsel’s conclusion to this part of their submissions was this:
43.It is clear from the decision of the Court of Appeal in respect of the sentence of Ms Churchward that the reduction from 17 years to 13 years was because of “in particular Miss Churchward[’s] prospects for rehabilitation and the crushing nature of a long sentence without the possibility of parole”. In light of that, and her 13 year term, when one considers the discrete factors relevant to Ms Te Wini including no murderous intent, lesser involvement, reduced culpability, operative mental health issues, extreme youth, guilty plea, remorse and prospects of rehabilitation, it is obvious that imposition of life imprisonment with a 10 year term offended the parity principle. The term should have been less to take account of these matters.
(Footnote omitted.)
A number of points. First, of Ms Te Wini’s role in the murder, as opposed to that of Ms Churchward, Woolford J observed:
[55] While not a mitigating feature of the offending per se, Ms Te Wini’s reduced role in comparison to her co-offender was a matter that was put in issue. It seems reasonably clear from the material before the Court that, at the very least, Ms Te Wini wielded a lighter weapon and dealt fewer blows to the victim.
[56] Ultimately, the more limited role of Ms Te Wini can only be of limited importance given her participation in all the stages of the offending and her acting substantially in concert with Ms Churchward. The two of them agreed on a course of criminal conduct and were each sources of encouragement for the other. Little recognition can be given on the basis that she played a somewhat different role in the offending. Only in a situation where an offender’s behaviour stands quite apart from that of the principal, such as in R v McNaughton should prime recognition be given to the difference.
Second, the view of the relationship between Ms Churchward and Ms Te Wini urged on us cannot be reconciled with that adopted by this Court in Churchward. The Court in Churchward referred variously to:
(a)the fact that Ms Churchward had “developed a protective attachment” to Ms Te Wini.[35] Similarly “on the videotaped police interview she appeared protective of Ms Te Wini”;[36]
(b)“her adolescent view of the importance of her relationship with [Ms Te Wini leading] to a need to keep faith with her cousin, by keeping her promise to support her in robbing the occupant of the house”;[37] and
(c)“Ms Churchward’s strong attachment to her cousin … [t]his appears to have led to a warped desire to please Ms Te Wini which appears to have been a factor in this offending”.[38]
We are prepared to accept that an assessment based on those observations might have been generous to Ms Churchward. One unassailable indication of the relationship between the two young women was contained in counsel’s submissions. It came from an intercepted communication that was part of the pre-trial disclosure by the police. It was not before Woolford J, nor before this Court when it allowed Ms Churchward’s appeal against sentence. The communication recorded Ms Te Wini recounting to her mother an incident in which Ms Churchward violently beat her for a minor slight:
She’s got a temper too, did you know Del? … And then she was then like she goes, ayhe you should just f off now, get lost. I was like, ohh don’t worry I will, then I started walking to go to Uncle Seoul’s church to have some peace, and then all of a sudden I could hear this toote, toote, toote, toote, behind me as I was walking and she just grabbed my hair, yanked me back, I fell straight onto the ground, fuck my head was sore and then she just jumped on top of me started pulling my hair, choking me, punching my face and scratching my face. I was like cuz, if you really honestly want to kill me, do it right now and do a good job.
[35]R v Churchward, above n 5, at [38].
[36]At [46].
[37]At [39].
[38]At [97]. In a footnote to this comment the Court states “We make no comment on the correctness or otherwise of Ms Churchward’s perception that Ms Te Wini wanted her to beat Mr Rowe”.
Third, counsel’s point about the guilty plea is that Ms Churchward was convicted after trial, while Ms Te Wini pleaded guilty. As we have pointed out, the correct position is that they were both tried and convicted together, but that Ms Te Wini’s conviction was later quashed on appeal. In quashing that conviction this Court noted:
[14] For Ms Te Wini, the defence at trial was that there was insufficient evidence of Ms Te Wini’s involvement in the actual assault on Mr Rowe. The case was that it was Ms Churchward, as the older and more experienced burglar, who was the leader and principal offender and who reassured Ms Te Wini that “nothing bad would happen to Mr Rowe”. It was also claimed that, even if the jury found that Ms Te Wini had inflicted the injuries that caused Mr Rowe’s death, there was no murderous intent.
While it is correct that Ms Te Wini pleaded guilty once the indictment had been amended to charge her with murder under s 168, she had at trial denied any involvement in the assault that killed Mr Rowe.
Consequent upon this Court’s judgment on appeal, Ms Churchward will be imprisoned for a minimum of 13 years. Ms Te Wini must serve the statutory minimum of 10 years’ imprisonment. We do not consider those sentences are disparate, on well established principles.
Remorse and prospects of rehabilitation
The reference in the intercepted conversation set out above at [48] to Ms Te Wini seeking some peace in “Uncle Seoul’s church” appropriately prefaces and gives force to counsel’s submission under this head. Counsel drew our attention to the letter from Ms Te Wini’s Bible Study teacher, which was attached to the pre-sentence report Woolford J had. This letter refers to Ms Te Wini’s desire for “some kind of redemption”, but also to her struggle to accept that she could ever be forgiven for what she has done – “I don’t think God can forgive me”.
Counsel referred also to Ms Te Wini’s willingness to take part in a restorative justice conference, an initiative that was – understandably though perhaps regrettably – not accepted by Mr Rowe’s family.
Again, Woolford J accepted genuine remorse on Ms Te Wini’s part as a mitigating factor. He listed it in this way:[39]
[39]R v Te Wini, above n 1, at [58](c).
Remorse: Ms Te Wini shows what is accepted to be genuine remorse for what she has done and the harm she has caused to Mr Rowe’s family. Her willingness to engage in some kind of restorative justice, while understandably not possible, is a positive sign as well.
Overview
We have worked our way through each of the six factors counsel urged on us as supporting their submission that the sentence of imprisonment for life Woolford J imposed on Ms Te Wini is manifestly unjust. We need now to stand back and look at this appeal in the round.
The decisions of this Court referred to by Woolford J, and binding on him, have made it clear that the “manifestly unjust” test for departing from the s 102 presumption in favour of life imprisonment for murder is a stringent one. As s 102(1) states, it must be “the circumstances of the offence and the offender” that would make imposing a sentence of imprisonment for life manifestly unjust.
For all the reasons advanced by counsel, life imprisonment may well be manifestly unjust if it were only the circumstances of the offender – Ms Te Wini – that the Judge needed to consider.
But that was not the position. The Judge needed also to consider the circumstances of the offence. And, along with Ms Churchward, Ms Te Wini was involved in brutally murdering a defenceless old man in his bed in his own home at night. As counsel for Ms Te Wini rightly acknowledged, it was a “dreadful” crime.
We see no fault in the way Woolford J assessed, and factored in, Ms Te Wini’s role in the murder, as he summarised it in the two paragraphs cited above at [46].
As Woolford J noted, when introducing what became the Sentencing Act, the Minister outlined the sort of cases that might displace the s 102 presumption.[40] The Minister instanced a mercy killing or a case where there is evidence of prolonged and severe abuse. In that latter instance the Minister was surely referring to abuse of the offender by the victim, as was the case in R v Wihongi. In reporting on the Bill, the select committee instanced also a failed suicide pact. The murder of Mr Rowe bears no resemblance to any of those examples.
[40]R v McNaughton, above n 6, at [16].
In [56] of his sentencing remarks, Woolford J referred to R v McNaughton, as an instance where “an offender’s behaviour stands quite apart from that of the principal”. The Judge’s reference was to the imposition on one of Mr McNaughton’s four co-offenders, Mr Cunnard, of a finite sentence of 10 years’ imprisonment for murder. In that case there had been a prearranged fight between two groups of young men between whom there was bad blood. Miller J found that Mr Cunnard’s role was to bring a shotgun to the fight, already loaded. The Judge accepted that Mr Cunnard did that “to protect your group, by intimidating your opponents, if things went wrong”.[41] In the course of the fight Mr Cunnard did use the gun in a protective way: he took it out and worked the pump action, ejecting a cartridge to demonstrate it was loaded.[42] But it was Mr McNaughton who went to Mr Cunnard, took the gun from him, and shot dead the victim, who was advancing on him, from a range of about three metres.[43] That distinction between an offender who brought and brandished a weapon only for protection on the one hand, and an offender who took the weapon and used it to lethal effect on the other hand, simply cannot be applied to distinguish Ms Te Wini from Ms Churchward.
[41]At [16].
[42]At [20].
[43]At [23]–[26].
Nor do we consider Ms Te Wini’s appeal gains any support from this Court’s decision in R v Slade.[44] Mr Slade was one of three young men, all aged 16, who assaulted and robbed another young man who happened to come along while they were loitering in the street. Mr Hamilton assaulted the victim first, and was the ringleader throughout. Mr Hamilton inflicted the injuries; Mr Slade and a third man held the victim down. Later in the morning Mr Slade went back with Mr Hamilton to find the victim still lying on the street unconscious. Mr Hamilton proceeded to kick the victim in his chest. The victim subsequently died of his injuries.
[44]R v Slade, above n 34.
Mr Slade and Mr Hamilton were both sentenced to life imprisonment with a minimum period of imprisonment of 17 years. On appeal, neither challenged the life sentence but both submitted that the minimum period of imprisonment of 17 years was crushingly destructive of their young lives, and therefore manifestly unjust.
In allowing Mr Slade’s appeal, this Court agreed with the sentencing Judge that Mr Slade was not merely a bystander. He did “pin” the victim down, although only when Mr Hamilton began to lose the fight. But the Court accepted “that Mr Slade was by no means the ringleader or a principal perpetrator”.[45]
[45]At [53].
So Slade also is distinguishable, given that Ms Te Wini did join in whacking (her word)[46] Mr Rowe with a stick, albeit at Ms Churchward’s urging, and with a lighter stick than Ms Churchward, and striking fewer blows.
[46]See the passage from Dr Myers’ report quoted above at [21].
This Court was almost peremptory in dismissing Ms Churchward’s appeal against life imprisonment on the ground that her youth and mental state made life imprisonment manifestly unjust. The Court described her counsel’s submission as “highly optimistic”. It referred, as we have above in [16] and [60], to the Minister’s comments on s 102 when introducing what is now the Sentencing Act. The Court then said:
[65] We reject Mr Tennet’s submission that life imprisonment was inappropriate. This was a brutal murder committed in the course of a premeditated home invasion for the purpose of robbery.
(Footnote omitted.)
Drawing all this together, we reiterate that, were the circumstances of Ms Te Wini as offender the sole consideration, it may have been manifestly unjust to sentence her to imprisonment for life. But we agree with the Judge that the circumstances of the offence, and Ms Te Wini’s involvement in it, were such that a sentence of life imprisonment was not manifestly unjust.
Because several of the criteria set out in s 104 of the Sentencing Act applied, s 104 was engaged. Woolford J was required to impose a minimum period of imprisonment of at least 17 years unless satisfied that it would be manifestly unjust to do so. In the light of all the “significant mitigating factors” he had considered in relation to s 102, Woolford J was satisfied that “to follow the dictates of [s 104] would be a manifest injustice”.[47] Indeed, the Crown accepted that. He reduced the minimum period of imprisonment to that mandated by law, 10 years’ imprisonment. There is obviously no challenge to that part of the sentencing, and therefore no need to go into the Judge’s consideration of s 104.
[47]R v Te Wini, above n 1, at [67].
Result
For the reasons we have given, the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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