The Queen v Matthew Edward Bevan Ruru
[2002] NZCA 21
•12 February 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA371/01 |
THE QUEEN
V
MATTHEW EDWARD BEVAN RURU
| Hearing: | 5 February 2001 |
| Coram: | Gault J Blanchard J McGrath J |
| Appearances: | S B Manning for Appellant J M Jelas for Crown |
| Judgment: | 12 February 2002 |
| JUDGMENT OF THE COURT DELIVERED BY MCGRATH J |
Introduction
The appellant was charged with the murder of his partner, Te Pare Te Kahu, on 5 April 2001 at Napier. Shortly before his trial was to commence a report was obtained by the defence from a neuropathologist as a result of which the Crown discontinued the murder charge, substituting a charge of manslaughter, to which the appellant pleaded guilty on 8 October 2001.
On 18 October 2001 the appellant was sentenced by Durie J to seven years imprisonment. He appeals against sentence on the grounds that it was manifestly excessive in all the circumstances and wrong in principle.
Background
At the time of her death the deceased and the appellant had been living in a de facto relationship for 20 years. They had two children who were aged 21 and 20 years. On 5 April 2001 the deceased and the appellant had attended a party together, for most of the day, at the home of one of the deceased’s brothers. Apart from a period early in the afternoon, when the appellant went home for a sleep, they spent the day drinking beer and rum. During the early part of the evening an argument developed between the appellant and deceased. Following shouting at each other for some thirty minutes the appellant assaulted the deceased, slapping her under the chin, at which point the deceased’s brothers intervened.
About 10.00pm the appellant left the party and went home. The deceased stayed on for another hour and was taken home around 11.00pm. Soon after her arrival at the home there was a confrontation. The appellant was angry because the deceased had come home late and began arguing with the deceased. He slapped her around the head several times, causing her nose to bleed. He then pushed her outside the door of the house and locked it. After trying unsuccessfully to get back into the house the deceased went into the washhouse at the rear of the house to sleep. Splatters of blood were found on the inside of the washhouse door and along the path leading to the back door. The appellant later came looking for her. He went back inside when she told him to go away.
Some time later the appellant allowed the deceased to come back into the house. Once she was inside a further argument developed during which there were further slaps to the deceased’s head by the appellant. He also knocked her to the floor in the bedroom and slapped her about the face again while she was lying on the floor.
At some stage the appellant dragged the deceased down the passageway leading to the bedroom causing grazing to her back and shoulder. Eventually she passed out on the bedroom floor. The deceased then tried to clean her and he put a cover over her.
At about 1.00am their son returned home and saw his mother lying on the floor in the bedroom breathing but with blood on her face. No particular concern was, it seems, felt at that stage for the deceased by either the appellant or their son. At 7.00am the son came back into the room. The deceased at that time was breathing but the son could not wake her. He left the house for a short time to speak to a relative and when he returned he found that his mother was dead. The son then called the police and an ambulance. A scientific examination showed that there were bloodstains on the carpet by the front door as well as in the bedroom where the deceased had been lying. Blood had also been wiped off a wall in the bedroom.
Injuries to the deceased
The appellant was spoken to by police and admitted to having assaulted the victim including that he had slapped her a number of times about the face and head. He also admitted slapping her when she was lying on the ground. He denied any punching or kicking of the deceased.
A post-mortem examination by a pathologist, Dr Thomson, who gave evidence at the depositions hearing, indicated external injuries to the head of the deceased included bruising, abrasions and grazing which was extensive. The deceased also had numerous cuts and bruises about her body, arms, legs and hands. The pathologist concluded that the deceased had died from a subdural haemorrhage resulting from force being applied to her head causing a relatively violent rotational movement. He was unable to say which of the injuries resulted in the haemorrhaging but identified four which might indicate a blow which caused the necessary rotational movement of the deceased’s head. They were an injury to the left side of the deceased’s temple, one to her jaw, an injury on the point of the jaw, and a graze to the edge of the deceased’s eyebrow.
Following depositions Dr Synek, who is a forensic neuropathologist, was instructed by the defence to examine the reports, witnesses’ statements, photographs and microscope slides, as a result of which she concluded, in agreement with Dr Thomson, that death was due to a subdural haematoma. Dr Synek also agreed that the immediate cause of death was the tearing of the bridging veins which pass from the brain surface, run across the subdural space of the brain, and empty into larger veins running through the dural membrane, which lines the inside of the skull. Tearing of a draining vein, she reported, may occur when the head is suddenly accelerated at an angle, or is suddenly stopped. The former could be due to a forceful blow to the head and the latter by the moving head stopping or hitting a solid surface such as the floor after a fall.
Dr Synek was of the opinion that there were indications in the pathology that the brain of the deceased was smaller than usual which could be due to a degree of brain shrinkage. That, together with the large size of the blood clot pressing on the surface of the brain, suggested the brain had shrunk away from the skull leaving a larger than normal subdural space to be filled by a blood clot. This in turn could lead draining veins to lose their slack making them more susceptible to tearing from sudden movements. Intoxication at the time of injury, relaxing neck muscles, could also cause the head to be more easily accelerated when struck. Heavy intake of alcohol over many years can lead to brain shrinkage.
In the instant case there were no fractures of the skull or facial bones. That was consistent with the fatal injury to the deceased being moderately severe, but nevertheless resulting in subdural bleeding in a person with a propensity to the complication. Dr Synek’s overall opinion was that while the death was the result of a large subdural haematoma, there was a susceptibility to tearing of veins draining the brain as a result of some shrinking of the brain, so that death could have resulted from only a moderately severe injury.
Sentencing judge’s approach
The sentencing judge accepted that the medical reports of the neuropathologist suggested that death was partly due to the fragile medical condition of the deceased, in particular the shrinking of her brain. While that was not known to the appellant he was aware that the deceased suffered from diabetes. The first aggravating feature of the case, in the Judge’s view, was that the death of the deceased was the result of a violent and sustained assault by the appellant over a period of time during the night in question. The matter could not be treated as a momentary assault arising from a passing rage. The second aggravating feature was the history of ongoing violence to the deceased over the years as the appellant was known to have assaulted the deceased on previous occasions.
The Judge observed that the appellant’s previous offending was alcohol-related and included six drink driving convictions. Supervision of the appellant had concluded only 5 months prior to the offence with mention being made of some positive steps by the appellant to address his alcohol dependency. The supervising officer had however predicted he was likely to continue to drink at hazardous levels. Although the appellant had no prior convictions for violence the Judge said he could give little weight to that factor in view of his past violence in his home. The appellant was a violent person when he had been drinking and, although that should have been apparent to him, he continued to drink to excess.
While the remorse the appellant had expressed was accepted to be genuine it was too late. The Judge did accept that a guilty plea depended on production of the neuropathologist’s report which provided the opportunity to seek a reduction in the murder charge to manslaughter and that in this context the plea came at the earliest opportunity. The need to break the cycle of excessive drink and associated violence so stood out in his case that it precluded any allowance for the circumstance of his upbringing or that large scale drinking was common in the failures of the couple.
The Judge considered a number of decisions of this Court concerning sentencing for the manslaughter of a domestic partner. He saw the case as more serious than those in which violence resulted from one off acts, such as R v Maru (CA449/00, 26 July 2001) where a sentence of five years imprisonment was upheld and R v McLeod (CA112/94, 27 May 1994) where a sentence of six years was reduced to four years imprisonment. The sentence giving him the greatest guidance was that of eight years imprisonment imposed by the High Court in R v Tepu (T889/98, Wellington, 21 June 1998). The circumstances of that case included death being caused after sustained violence over a period (ultimately by the stabbing of the deceased) and a history of domestic violence in the relationship. The present appellant was less culpable only in that no weapons were involved.
The Judge fixed the starting point at eight years imprisonment and allowed a one year reduction which he attributed to the guilty plea. The sentence he imposed was accordingly seven years imprisonment.
Appellant’s submissions
On the appellant’s behalf Mr Manning submitted the Judge’s starting point of eight years was too high. The appellant had acknowledged hitting the appellant by slapping her face and head no more than six times. Mr Manning argued, by reference to Dr Syneck’s opinion, that the fatal consequence was the result of a moderate degree of force. There were no fractures, concussion, broken teeth, or other such indications of greater violence than that the appellant had admitted to. The Judge’s finding of a “violent sustained assault” attributed greater culpability than the facts suggested. Although death had resulted the starting point in the sentencing should have been more proportionate to the extent of the assault that caused death.
Mr Manning also argued that a reduction of one year from the starting point of eight years failed adequately to reflect the early guilty plea and made no allowance for other matters in mitigation including the appellant’s remorse and the deceased’s medical condition. He accepted that there had been prior violence in the relationship and this was an aggravating factor.
Decision
In the present case death resulted from the consequences of one of the blows administered by the appellant to the deceased’s head during the evening. Injuries identified during the post-mortem evidenced four blows having a force which might have resulted in sudden acceleration or arrest of movement of the head sufficiently to tear the draining vein and cause the subdural bleeding. One of these blows did so. The violence causing death was part of a continual series of assaults which had taken place during the evening. We consider the Judge right to attribute the deceased’s death in those circumstances to what he described as a violent and sustained assault. The appellant’s acts on the night must be regarded as having a high degree of culpability within the range of illegal acts of violence which can cause the death of a domestic partner.
The statement of facts before the High Court was accepted by the appellant’s counsel. In relation to historical violence within the relationship between the appellant and the deceased it said:
The relationship between the offender and the victim can be characterised as having vast swings. While showing strong affection for each other they were also known to have serious arguments which turned to violence between them. The defendant has been known to assault the victim on occasions.
The victim has previously required medical attention for injuries inflicted by the defendant.
The majority of these violent incidents take place when both parties have been drinking.
Enquiries show them to be heavy drinkers. It is on these occasions that their relationship turns to violence.
There was evidence also in a deposition from a medical practitioner that earlier the deceased had sought medical attention for bruising to her head, hands and wrists. Plainly this had resulted from an assault by the appellant. Her brother also indicated that the deceased was concerned on the night that she would be subjected to violence if she returned home that night after the deceased had done so. All this makes it clear that the deceased had previously been the subject of violence during the course of her relationship with the appellant, in particular on occasions when he and she had been drinking. The violence on the evening of 5 April is therefore to be seen in a context of this previous pattern of violence in the relationship which further aggravated the seriousness of the illegal acts causing death.
Against this we acknowledge that Dr Syneck’s opinion of the possibly greater susceptibility of the deceased to tearing of the veins draining her brain, in the event of head injury, is relevant to the assessment of the gravity of the appellant’s conduct. Her opinion was accepted by the Crown. The effect of it is that the force of the blows may not have been deadly to a person without that susceptibility. This has of course been acknowledged in the substitution by the Crown of a charge of manslaughter in place of murder properly reflecting the view that it was no longer open to treat the fatal consequences as intended or a matter of reckless disregard. However the appellant was, as the Judge pointed out, aware that the deceased was not in good health and in particular that she suffered from diabetes.
Overall the circumstances of the assaults causing the death of the deceased on 5 April are such that the case cannot be treated as one where the unlawful acts of violence, although having fatal consequences, were comparatively minor. The penalty that was imposed had to include a deterrent aspect to reflect the degree of seriousness of the illegal conduct. As well, as Ms Jelas submitted on behalf of the Crown, it had to reflect the Court’s denunciation of a prevalent pattern of domestic violence, associated with excessive alcohol consumption, which, in this case, culminated in the assaults causing Ms Te Kahu’s death.
None of the cases considered by the Judge provided him with immediate guidance. We agree that this case appears less serious than that of Tepu but would observe that was a case in which a higher sentence could not have been criticised. Decisions the Judge considered other than those already mentioned were: R v Dellow (CA13/79, 6 September 1979); R v Rerekura (CA361/87, 21 June 1988) and R v Keogan (CA266/93, 29 September 1993). In each the circumstances of the death, the most important consideration, including the state of mind of the deceased, differed. In the present case we have no doubt that death was caused by a blow in the course of a sustained severe assault on the deceased having at least two phases during the evening concerned. Overall we regard an eight years starting point as stern but, having regard to the need for a deterrent sentence, within the range that was open to the Judge. We would add that we do not regard eight years as at the top of the range of sentences for manslaughter involving domestic violence in a context of repetitive conduct.
Turning to matters of mitigation, the principal factor was the appellant’s guilty plea. The Judge accepted the submission of Mr Manning that it should be treated as coming at the earliest opportunity. This was because the issue of susceptibility only arose during depositions as a result of concern from Dr Thomson that he was being asked questions outside of his expertise. That led the defence to engage Dr Syneck whose report provided the basis for a request for reappraisal of the level of charging. This was a case, however, in which the defence might well have offered to plead guilty to manslaughter at an earlier stage. As Ms Jelas for the Crown suggested, this was always going to be a case in which a charge of murder would have been difficult to prove. In the event the guilty plea was only entered on the morning the trial was scheduled to commence.
Of the other factors advanced we do not regard the appellant’s remorse as entitling a further reduction in the sentence in the circumstances of this case. Nor is the absence of a full awareness of the deceased’s medical condition, although acknowledged by the Judge, a matter of mitigation. It has been taken into account, of course, as part of the assessment of the seriousness of the unlawful conduct.
On one view of the Judge’s sentencing remarks he appears to have indicated that the twelve month reduction was attributable only to the early guilty plea. We doubt however if that is so. A reduction of twelve months was not generous but has not been shown to be wrong. We will not interfere with it.
Result
The appeal against sentence is dismissed.
Solicitors
Crown Law Office, Wellington, for Crown
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