The Queen v Luke Graham Hetherington

IN THE COURT OF APPEAL OF NEW ZEALAND

CA28/02

THE QUEEN

LUKE GRAHAM HETHERINGTON

Hearing:	13 June 2002
Coram:	McGrath J Williams J Salmon J
Appearances:	M Dyhrberg and M Bannan for the Appellant B J Horsley for the Crown
Judgment:	20 June 2002

JUDGMENT OF THE COURT DELIVERED BY MCGRATH J

Introduction

The appellant was convicted by a jury on a charge of manslaughter of his de facto partner and was sentenced to 9 years imprisonment. He appeals against that sentence on the ground that it was manifestly excessive, having regard to the factual circumstances of the case and to recent sentencing decisions of this Court in similar cases.

Background facts

At the time of her death the deceased was living with the appellant in a de facto relationship. On 30 December 2000 she attended a party at a friend’s house from which she had returned home intoxicated prior to 11pm. A heated argument thereafter developed between the deceased and the appellant. A neighbouring couple gave evidence of hearing the deceased screaming and yelling at the appellant to get out of her house. In the course of it the appellant was heard to refer to spending by the deceased of money he had given her. The commotion diminished after a period but it then resumed and the neighbours could then hear household items being smashed.
At this stage one of the adjacent neighbours called the police to inform them of a domestic dispute getting out of control. The argument thereafter escalated. It continued for 20 minutes during which the appellant had not been yelling at the deceased. She, however, was yelling loudly at him. Then in words of the female neighbour:
…it was like he just snapped, he just became hysterical. …I could hear them walking down the hall, that’s how I knew where they were, and he just snapped, he just started yelling and screaming at her and then I heard those punches and I heard him yell at her when, obviously she was on the ground and that it happened really quickly at the end, it became violent it happened quickly, maybe three or four minutes.

The neighbours said in evidence they heard four or five loud thumps the source of which was the subject of some speculation at the trial. They were immediately followed by two noises sounding like punches – that is blows of skin meeting skin. From this time nothing further was heard from the deceased at all. The appellant was heard to say “Is that what you wanted, look at your lying there…I don’t feel sorry for you.” He swore and said he would move out to a boarding house in the morning. He then began to clean up.

The police arrived some five minutes after the punching type noises were heard to find the deceased in the bedroom of the apartment, unconscious on the floor. She had been placed in the recovery position. Her injuries, however, were so severe that she died in hospital in the early hours of the following morning.

The trial and conviction

At his trial the appellant faced a charge of the manslaughter of the deceased. Evidence was given by two pathologists. The first undertook the post mortem examination of the deceased. His examination disclosed fresh bruising to both sides of the upper part of the head. There was also fresh bruising on both sides of both eyelids. The pathologist also observed fresh haemorrhaging in the white of the deceased’s right eye. He said all this bruising was consistent with trauma from a blunt force. The injuries were not consistent with one blow or fall or injury. There were in his opinion probably several. There were however no fractures and the pathologist was of the view that a “moderate force” rather than “a really major force” had caused the injuries. He thought they had been transmitted by some blunt object and possibly a punch, a kick or a fall. In addition to these injuries he also said in evidence that there were some indications of older bruising of the deceased.
Evidence was also given by a specialist neuropathologist. In her opinion the deceased had suffered two episodes of injury to the head the first of which was some 10 to 15 days before she died and the second at a time very much closer to her death, quite possibly between 10 minutes and 2 hours prior to the reported attempts by rescue services at resuscitation of the deceased. The second lot of trauma had been quickly followed by blood clotting below the dura and swelling within the brain. The witness would not have expected death to occur but for the second episode.
The appellant did not give evidence, nor did he at any point make a statement about what happened in the apartment that evening. The jury found him guilty of manslaughter.

Sentencing

At the trial evidence was given of other previous incidents involving alleged domestic violence by the accused, including that of a complaint that he had assaulted the deceased in July 1999. The Judge declined to take this evidence of violence in the relationship into account at sentencing first because it was based on hearsay, and secondly because the evidence was too limited to found inferences which the Court could properly rely on in sentencing the appellant for the manslaughter of his partner.
The Judge did, however, take into account as an aggravating factor the conviction of the appellant for assaulting the deceased on 3 January 2000. The appellant had on that occasion pleaded guilty and was sentenced to a term of 9 months imprisonment on 27 July 2000. Indeed the appellant had been released from prison, on parole, only 19 days before the fatal assault occurred. The Judge described this conviction as being a significant factor in his decision on the appropriate term of imprisonment to be imposed on the appellant.
Another factor taken into account was the Judge’s view that there had been “a sustained” assault on the deceased with a number of blows involved rather than one isolated blow. His Honour did however accept that the nature of the appellant’s violence which caused his partner’s death did not go beyond the slapping or punching of the deceased. There had been some speculation during the trial that he might have thrown her against a wall. The mitigating factors the Judge identified included the appellant’s remorse and regret, and the fact that the appellant suffered from an alcohol abuse problem which he had attempted to deal with in the past and would take positive steps to deal with in the future. Other relevant factors in setting the penalty included the nature of the offending, the sanctity of life and the loss of life. The Judge acknowledged he had been referred to a number of manslaughter sentencing cases but clearly found them of limited assistance. He observed, correctly, that there is no standard sentence for manslaughter because the circumstances of each case vary so greatly. In the result he imposed the sentence of 9 years imprisonment which is the subject of appeal.

Submissions on appeal

At the hearing of the appeal Ms Dyhrberg, counsel for the appellant, submitted that having regard to all the circumstances a term of imprisonment of 9 years was manifestly excessive. She submitted that the offending had involved only a moderate degree of violence and that the Judge gave insufficient weight to the fact that the cause of death was something that could not have been reasonably foreseen by the appellant, who did not know she was suffering from a subdural haematoma. Counsel argued there was no basis in the evidence to characterise the violence as “sustained”. The assault had been brief even though more than one blow was involved. She discussed recent decisions of this Court and the High Court the most pertinent of which, she said, was R v McLeod (CA112/94 27 May 1994) where the Court said the death of the victim, a female friend of the appellant, “was far removed from the expectations arising from the actual violence which could not be described as extreme” (p5). In that case a sentence of four years imprisonment was substituted on appeal following a plea of guilty to manslaughter.
Mr Horsley, counsel for the Crown, argued that the appellant’s case could be distinguished from R v McLeod which involved a single blow to the head. The present case had involved a series of blows to the head in the course of a heated altercation. Mr Horsley also submitted that the Judge was entitled to place significant weight on the appellant’s very recent conviction for assault of the deceased, particularly in light of the fact that he had just been released from the prison term he served for it. This suggested that the fatal attack was not an isolated incident. The appellant had rather demonstrated a tendency towards violence and a strong deterrent and denunciatory sentence was warranted for his offending. Although the appellant claimed remorse no credit should be given for that. The re-sentence report indicated that while the appellant was sorry that the victim was dead, he continued to maintain that he did not have any hand in her death.

Decision

The deceased died as a result of blows to her head late in the evening on 30 December 2000. The blows were inflicted by the appellant in the course of an argument after the deceased had returned home intoxicated from a party. The head injuries identified by the first pathologist as resulting in the death of the deceased were consistent with the appellant having suffered several blows to the head. In his view there were probably about five and that was accepted by Ms Dyhrberg in the course of her argument. Although the blows were inflicted with what the pathologist described as “moderate force” rather than “really major force” they were directed at the deceased’s head and sufficient to cause bruising of stem tissue and of muscles under the scalp and above the skull on both sides of the head. More importantly they resulted in the swelling of the brain, coupled with bleeding and blood clotting inside the deceased’s skull, which was the immediate cause of her lapsing into a coma and dying.
We do not accept the suggestion that the impact of the blows that led to death was mild. Ms Dyhrberg referred us to evidence of the neuropathologist which discussed the condition known as second impact syndrome where the consequences of even a mild second injury to the brain, during the days following the first, can lead to a reflexive action with blood pouring into the brain, consequential brain swelling, loss of consciousness and death. While there was evidence of a prior head injury before the jury, which the Judge mentioned at the time of sentencing, the neuropathologist, in her evidence, did not go beyond saying that the development of the syndrome was a “rare but well recognised possibility” for a person who has had two head injuries within a relatively short space of time. Her evidence did not express an opinion on whether the death of the deceased was due to second impact syndrome and it was not put to her that the impact of the blows in this case was mild.
The jury’s verdict, moreover, is inconsistent with the theory that the impact of the blows to the deceased’s head on the evening of 30 December 2000 was mild. So is the implicit basis on which the Judge sentenced the appellant, which was that the blows, which he accepted were slaps or punches, were of a force that in themselves caused death.
The Judge described the violence as a “sustained assault with a number of blows”. We infer from the evidence that the blows were inflicted by the appellant at the end of the domestic argument heard by the neighbours and that the violence itself, which they heard clearly, lasted for three or four minutes. The number of blows heard and the duration of the assault warranted the term “sustained” and the offending cannot be characterised as the result of a momentary rage. Nor can it be seen as akin to that in McLeod where medical evidence suggested a single blow had rendered the victim unconscious and she had died from obstruction of her airway. While this Court has in a number of decisions acknowledged that illegal acts of violence causing the death of a domestic partner can differ in the degree of their culpability, we are satisfied the evidence indicates that the appellant’s offending is at the higher end of that range.
The Judge recognised that the factor significantly aggravating the appellant’s offending was that twelve months earlier he had committed a similar serious assault on his partner for which he was sentenced to nine months imprisonment. The similarity between that assault and the offending which killed the deceased is notable. The agreed statement of facts on which the appellant was sentenced on the previous occasion formed part of the evidence at the trial. It recorded that the deceased had visited her place of residence to collect some articles. It continued:
Upon her arrival the victim briefly spoke with the defendant, who was seated on his bed. They spoke about why she had left his address earlier in the day. Suddenly the defendant stood up and punched the victim to the left rear of her head with a closed fist. This caused the victim to fall onto the bed. The defendant then continued to punch the victim to the head and left side of her body. She was punched at least six times. The defendant then grabbed the victim by the hair and dragged the victim by her hair into the hallway and gave her shoes and handbag from a cupboard. The victim then went to the bathroom upstairs in an attempt to clean herself up prior to leaving the address. As a result of the attack the victim received numerous injuries, including two fractured ribs and contusions around the body.
As pointed out by Mr Horsley not only was the offending which caused his partner’s death a repetition of the violent outburst twelve months earlier but it took place within three weeks of his release from prison after serving his sentence for that offending.
Of the decisions cited to us by both counsel it is clear that the circumstances of offending addressed in this Court’s decision in R v Ruru (CA371/01, 12 February 2002) have closest similarity to the appellant’s offending. In Ruru the violence which caused the death of the appellant’s domestic partner was part of a continual series of assaults on her during the evening that she died. The Court was satisfied death had resulted from a violent and sustained assault taking place in three phases during the evening. A pathologist gave evidence that any one of four head injuries could have caused death. The appellant was a violent man when drinking and had been drinking during the evening concerned. The illegal violent acts in Ruru, were, like those in the present case, at the higher end of the range of culpability. Indeed they may have been marginally more serious than those in the present case where the offending appears to have followed an outburst of temper in the course of a domestic dispute. The violence in the present case, however, did involve a high degree of culpability. In Ruru there was a clear history of domestic violence to the deceased which at times required medical treatment. In the present case we have the very serious aggravating factor in the violence which resulted in the recent conviction and imprisonment of the appellant for a similar assault on his partner.
There was also little that the Judge could take into account by way of mitigation of the offending in the present case. The appellant did not plead guilty. While he told the probation officer prior to sentencing that if he could change places with the deceased he would, he also continued to maintain he had not hit the deceased the night she died. He has not at any stage accepted responsibility for what happened that evening nor explained how or by what means she died. In those circumstances we see no basis for this Court to accept that he is genuinely remorseful about what he has done and to take that into account as a mitigating factor.
Importantly, in this case as in Ruru the sentencing Court was required to impose a penalty reflecting its denunciation of serious offending which caused the death of a domestic partner in circumstances indicating prior violence in the relationship.
In Ruru this Court upheld a sentence of 7 years imprisonment reached after identifying an 8 year starting point and allowing a twelve months discount for mitigating factors principally being Mr Ruru’s guilty plea. In the present case Ruru was not cited to the Judge who gave no indication as to how he reached the conclusion that 9 years imprisonment was the appropriate sentence. We take the view that the appellant’s violence in itself was marginally less than in Ruru but must then take account of the serious aggravating factor in the appellant’s case of offending against the same victim, who was his partner, while he was on parole from the prison sentence imposed for his previous serious assault on her. Even recognising that Ruru was a case in which there was historic domestic violence, the aggravating factor in the appellant’s case in conjunction with the serious violence it involved, warrants a starting point of 9 years imprisonment. There are no mitigating factors which in our view warrant a deduction from that term of imprisonment.
For these reasons we do not regard the sentence as manifestly excessive and dismiss the appeal.

Solicitors

Crown Law Office, Wellington

[2002] NZCA 140

20 June 2002