The Queen v Helps

[2003] NZCA 93

IN THE COURT OF APPEAL OF NEW ZEALAND

CA45/03

THE QUEEN

v

KEVIN THOMAS HELPS

Hearing:26 May 2003

Coram:Gault  P
Fisher J
O'Regan J

Appearances:  D L Bates and M Bates for Appellant

K Raftery for Crown

Judgment:27 May 2003 

JUDGMENT OF THE COURT DELIVERED BY GAULT P

[1]       The appellant was found guilty by a jury in the High Court at Auckland of the offence of manslaughter.  On 5 December 2002 he was sentenced to imprisonment for six years with a minimum period to be served of three years.  He now appeals against his conviction and sentence.

[2]       In the early morning of 2 February 2002, the appellant twice approached prostitutes in the Otahuhu area.  One was the deceased and the other was the principal witness for the Crown, Ms Tuhoro.  On the second occasion he agreed to engage the services of the deceased.  She entered his car and the appellant drove to a dark area of a nearby carpark.  By that time Ms Tuhoro was also in the carpark, a short distance away, in a car with another client.  A scuffle ensued between the appellant and the deceased which brought Ms Tuhoro to the scene.  In the course of the scuffle the deceased was stabbed.  Already unconscious, she was removed from the car across the appellant’s knees and left on the ground, the knife with which she was stabbed beside her.  She was dead from loss of blood when help summoned by Ms Tuhoro arrived.  As soon as the deceased was out of the car the appellant drove away but, before he did so, Ms Tuhoro had grabbed the keys from his car.  The appellant took steps to destroy all evidence that might identify him as being present.  He cut part of the carpet out of his car, and, when he discovered that the police were in possession of his key, he smashed all the locks.  He disposed of the wrecked car but the police recovered it before it was crushed.  The appellant, eventually when his apprehension become inevitable, went to the police and admitted his involvement but claimed that the stabbing was accidental.

[3]       At the trial defence counsel cross-examined Ms Tuhoro at great length and brought out inconsistencies between her evidence and prior statements.  She acknowledged that she had lied to the police to conceal her own activity immediately before the critical events in the appellant’s car.  She maintained, however, that before she reached the appellant’s car she heard the deceased say “He’s got a knife.  I’ve been stabbed”.  That evidence was in sharp conflict with the statement made to the police by the appellant and confirmed by him when he gave evidence.  He claimed that the deceased had taken glue or some similar substance from her bag to sniff;  that he decided he wanted her out of the car;  that he leaned over to open the passenger’s door to push her out but the handle broke;  that when he tried to wind down the window to open the door from the outside she attacked him scratching his face;  that he noticed a knife he used for feeding his dog was on the dashboard and, to prevent her seeing it and attempting to use it, he went to throw it into the back of the vehicle;  that just at that moment he was pushed by Ms Tuhoro who had appeared at the side of the car and this must have caused the knife to enter the deceased’s chest.  He maintained he did not realise she had been stabbed until he reached his home although, in his evidence, he described how easily the knife penetrated.  He said he pushed the deceased out of the car, probably helped by Ms Tuhoro pulling her.  He explained his subsequent conduct as resulting from panic.

[4]       The appellant was charged with murder but convicted of manslaughter.  The appeal is on the ground that the evidence at trial did not establish beyond reasonable doubt an unlawful act by the appellant resulting in the death of the deceased as required by s160(2)(a) of the Crimes Act 1961.  It was submitted that the death amounted to a non-culpable homicide and the appellant should have been acquitted of manslaughter as well.

[5]       The case was put to the jury in a straight-forward way.  The appellant at no stage suggested he acted in self defence.  The issue was clear.  If the explanation of accident was rejected the only alternative was culpable homicide, with the need for the jury to determine whether there was the necessary murderous intent.  So far as manslaughter was concerned the Judge’s direction was equally clear.  The only unlawful act alleged by the Crown was assault by intentional stabbing.  The Judge directed:

… you will need to determine that Mr Helps intended to stab Ms Kelly.  If the stabbing was accidental, as is the defence position, it was not culpable homicide and was neither murder nor manslaughter.

[6]       In reply to a question from the jury the Judge emphasised that if they found accident, even if different from the accused’s account, there could not be culpable homicide.

[7]       It is correct, as Mr Bates pointed out, that if the jury were satisfied that there was an intentional stabbing, they could well have found the appellant guilty of murder.  That they did not do so does not indicate that they found no unlawful act.  Rather the verdict reflects findings that the appellant caused the death of the deceased by the unlawful act of a deliberate stabbing but that he did so without the necessary murderous intent.  That is how the sentencing Judge interpreted the verdict.

[8]       It was submitted that even if the jury did not accept the appellant’s evidence of unexpected impact from Ms Tuhoro on the appellant thereby accidentally causing the knife to penetrate the deceased, Ms Tuhoro’s evidence was so generally discredited that she could not be accepted as a witness of truth, reliability or credibility on whom a reasonable jury could safely rely for the sequence of events over the critical period.  That, it was said, should have left the jury in a state of reasonable doubt the benefit of which should have been accorded the appellant.  On the other hand, for the Crown, it was submitted that the jury were entitled to accept Ms Tuhoro’s evidence and that the Judge’s directions specifically addressed the issues of witness credibility and reliability.

[9]       We are unable to accept the submission for the appellant that a reasonable jury could have found proved an unlawful act causing death.  It was for the jury to decide what they would accept and what they would reject.  Ms Tuhoro’s credibility was exhaustively tested in cross-examination.  It would be an extreme case indeed that justified the Court on appeal ruling on the basis of a transcript that a witness was so unreliable that none of the evidence given could be accepted by a reasonable jury.  In this case much of the evidence of Ms Tuhoro was supported by other evidence including that of the appellant.  Her claim that before she reached the car she had heard the deceased say she had been stabbed was made and consistently maintained from well before it was known what account the appellant would offer.  We are quite satisfied that it was open to the jury to accept the essential parts of her evidence and to prefer it to that of the appellant.

[10]     The appeal against conviction is dismissed.

[11]     The appeal against sentence was directed to the imposition under s86 Sentencing Act 2000 of the minimum sentence to be served of three years.  The issue is whether the Judge was correct to conclude that “the offending is sufficiently serious to require a longer term than two years to punish, deter and denounce” so as to require consideration of a minimum sentence under the section.

[12]     As this Court said in R v Brown [2002] 3 NZLR 670, 678, it is a matter of judicial judgment whether the “sufficiently serious” threshold is crossed. The measure in s86(3) is not exhaustive. The concept of “the ordinary range of offending of the particular kind” is elusive indeed in respect of homicides. Of course, it can be said that all offences of manslaughter are serious and that all criminal offending carrying terms of imprisonment of more than a year or two are serious. But that is plainly not what the legislature had in mind. Nor is there to be taken from the power in s86 to impose minimum sentences an inference that unless such a sentence is imposed the offending is not regarded as serious.

[13]     The “sufficiently serious” requirement is intended to limit the use of minimum sentences to cases of offending that are notable for aggravating features such that the legislative direction that (absent risk to the safety of the community) offenders are to be released after serving one third of their sentences, should be departed from.

[14]     In this case the sentencing Judge clearly had in mind the guidance contained in the judgment in Brown.  He did not set out in any length his reasons for regarding the offending as sufficiently serious, but these are apparent from his sentencing remarks.  He had assessed the offending as calling for a sentence in the range of six to eight years imprisonment.  There has been no challenge to that.  He fixed the nominal sentence at six years to allow for the mitigating factors of remorse and regret and, to some extent, the appellant’s background.  Those are not factors going to the test of “sufficiently serious”, though they are relevant (and were so treated by the Judge) to the length of any minimum sentence.

[15]     In addition to his assessment that the seriousness of the offending justified a nominal sentence of six to eight years, the Judge’s sentencing remarks were as follows:

You were found guilty of deliberately stabbing Marlene Kelly, and it would convey the wrong signals to the community if you were eligible for parole in only two years.  In my view, the offending is sufficiently serious to require a longer term than two years to punish, deter and denounce.  There was possible callousness, although I heard what your counsel said about that.  There was a vulnerable victim;  the consequences were very serious, and violence was used.

[16]     We asked counsel what had been said in the course of sentencing about callousness since the Judge seems to have withheld a firm finding on that.  On the evidence there was some foundation for viewing as callous the use of a knife, with no claim of self defence, upon a vulnerable woman, pushing her from the car in a “limp state”, driving off, very nearly running over her, and thereafter taking pains to conceal the identify of the vehicle.  We were told that it had been said for the appellant that the explanation for the presence of the knife in the car was not challenged and that the conduct after the altercation was attributable to panic.  Bearing in mind that it was some four weeks before the appellant took any step to acknowledge involvement we do not find these points negate callousness.

[17]     We have carefully considered whether we should interfere with the Judge’s assessment that the offending was sufficiently serious to require a minimum sentence.  But we are not persuaded that the conclusion was not open to him.  This was the exercise of a sentencing discretion which we are not prepared to say was wrong.

[18]     It was not suggested that, if a minimum sentence was open to the Judge, the period of three years is erroneous.  Accordingly, the appeal against sentence also is dismissed.

Solicitors:
Crown Solicitor, Auckland