The Queen v Puti Irene Heather Maxwell

[2003] NZCA 67

IN THE COURT OF APPEAL OF NEW ZEALAND

CA359/02

THE QUEEN

v

PUTI IRENE HEATHER MAXWELL

Hearing:26 March 2003

Coram:Keith J
Robertson J
Doogue J

Appearances:  S W Hughes for the Appellant

J C Pike for the Crown

Judgment:31 March 2003 

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

[1]       This is an appeal against a sentence of 8 years and 3 months’ imprisonment imposed for manslaughter committed by a 14 year old first offender who had just turned 15 at the time of sentencing on 30 September 2002.  The appellant was one of three young females jointly charged with the murder of a Mr Kenneth Pigott on 10 March 2002.  One of her co-accused, Ms Kararaina Te Rauna, pleaded guilty to manslaughter at the beginning of the trial, was sentenced, and gave evidence for the Crown.  She was sentenced to 8 years 9 months’ imprisonment and has not appealed that sentence.  She is slightly younger than the appellant.  The second co-accused, Ms Renee O’Brien, who is slightly older than the appellant, was convicted of murder and is serving a life sentence.

[2]   The basis of the appeal is that the sentence on the appellant is manifestly excessive and three grounds are advanced in respect of that submission.  First, it is said that the starting point of 9 to 10 years’ imprisonment adopted by the sentencing Judge was manifestly excessive given the appellant’s lesser role in the killing of the deceased.  The second ground advanced is that the appellant’s sentence is inconsistent with the sentence imposed on the co-offender Ms Te Rauna and comparable sentences.  The third ground advanced is that an inadequate discount was allowed for the mitigating factors in respect of the appellant.

Background

[3]   For present purposes we generally adopt what was said by the sentencing Judge, who was also the trial Judge, but we have also been aided by references to the evidence at trial.

[4]   The appellant was one of a group who decided to try and convert a 4-wheel drive vehicle of the deceased.  Her two co-accused were the instigators of the idea.  She fell in with them by chance.  Mr Pigott was asleep in his vehicle, parked by the side of the road, and affected by alcohol when first approached by the appellant and another in the group.  Subsequently the members of the group sought to trick the victim out of his vehicle. The appellant and Ms Renee O’Brien took away his keys and Cashflow card, although the appellant disputes that she had the keys.  The Judge’s finding that she had the Cashflow card and was aware of the whereabouts of the ignition keys cannot be disputed.  The appellant talked to the deceased through the driver’s window attempting to lure him from the vehicle. 

[5]   When this first approach failed, the appellant noticed a hammer in the vehicle.  The members of the group talked about the use of the hammer on Mr Pigott.  Ms O’Brien asked whether she should get it and hit Mr Pigott on the head.  The appellant replied “whatever.”  Ms O’Brien raised the prospect that this might kill Mr Pigott but the appellant said that she would only knock him out.  The appellant was present during discussions about the use of the hammer and was there at a stage when practice swings were being taken by Ms O’Brien. 

[6]   However during more detailed discussion which followed as to how the hammer was to be used and as to how Mr Pigott was to be distracted, the appellant did not participate.  The Judge said:

I think your counsel may be correct when she submitted to me that somewhere during that time frame you abandoned the plan or decided more likely to put distance between yourself and the plan.  It is very clear from the Crown evidence that you were not there when the fatal blows were struck.  You were skateboarding around the block.  It is also clear when you came back and found or observed Mr Pigott’s body bleeding on the ground your reaction was one of shock and surprise at what it was you saw.  You did, however, help Ms O’Brien drag Mr Pigott’s body up the stop bank.

[7]   Thus it was accepted that the appellant was not present when the 8 or 9 fatal blows were struck by Ms O’Brien on the deceased’s head.  The appellant did, however, later kick the deceased’s body and help Ms O’Brien drag him up a stop bank.  At that time Mr Pigott was thought to be dead.  He was, however, still alive. There was no suggestion that anything could have been done at that time to save his life.

[8]   The appellant subsequently assisted in driving the vehicle away and in attempting to use the stolen cash card.

[9]   The appellant was from an early stage prepared to admit she was an accessory after the fact.  After initial denials she gave a basically truthful account of her participation in events.

[10]     The appellant was not offered any inducement to give evidence for the Crown if she pleaded guilty to manslaughter, as was Ms Te Rauna.  Partly as a result she did not plead guilty to the charge of manslaughter until the end of the Crown case, after a s347 Crimes Act 1961 application for discharge in respect of the murder charge had been declined.  At that time she accepted advice she was at risk of being convicted of murder, even if the Judge subsequently said he thought that was unlikely.

[11]     In considering the aggravating factors the sentencing Judge took into account that Mr Pigott was a defenceless and vulnerable victim because of his prior consumption of alcohol and that he had been asleep.  He was alone, facing a group of young people including the appellant.  There were aspects of planning and premeditation, although these were to some extent spontaneous and worked out as the group went along.  The Judge went on to note mitigating factors of age, absence of previous convictions, and the late plea of guilty.  He appeared to accept there was remorse but did not expressly refer to it.  He assessed the appellant’s culpability as somewhat less than Ms Te Rauna’s and considerably less than Ms O’Brien’s.

[12]     The Judge had already sentenced Ms Te Rauna.  He was mindful that there had to be consistency between the two sentences.  In respect of Ms Te Rauna he regarded the lower end of a 12 to 14 year band as an appropriate starting point if there had been a jury verdict at the end of a defended trial.  Working from a 12 year starting point he reached the sentence of 8 years and 9 months imposed upon her.  He rejected a Crown submission for a similar starting point for the appellant.  He accepted that the appellant was a party to the plan to take the deceased’s car, the initial attempts to persuade the deceased to leave his vehicle, and to the discussions about the hammer that was used.  However, he accepted that she was not there when the deceased was being hit.  He said that he suspected that the appellant, by absenting herself on a skateboard, was seeking to avoid participation, unlike Ms Te Rauna who stayed and participated.  He regarded the appellant’s reaction of shock and horror on her return as being significant.  He therefore took the view that if the appellant had been convicted at trial the starting point for sentence would have been 9 to 10 years’ imprisonment with that range preserving appropriate relativity with the higher range taken in respect of Ms Te Rauna.  He accordingly imposed the sentence under appeal.

Starting point

[13]     We adopt what was recently said by this Court in R v Tawha, CA 396/02, 26 February 2003, paragraph [16]:

The starting point is the sentence level appropriate for the nature of the offence before aggravating and mitigating circumstances are considered, not after such circumstances are considered.

[14]     The starting point of 9 to 10 years adopted by the sentencing Judge took into account the aggravating features but had not taken into account the mitigating features.  That is apparent from the sentencing remarks.

[15]     The appellant seeks to persuade us that the starting point taken was manifestly excessive given the appellant’s lesser role in the killing to that of Ms Te Rauna.  In support of this submission the appellant seeks to minimise her role compared with that of Ms Te Rauna.  However, it is not necessary for us to consider the comparable roles in any detail.  The sentencing Judge had heard all the evidence and there was evidence justifying his more important conclusions.  We do not think it helpful to approach the matter from the point of view of the separate starting points for the two offenders.  Ms Te Rauna is not before us.

[16]     That however is not the end of this particular matter.  It is further submitted that in any event the starting point adopted is too high when comparable cases are considered.  The appellant seeks to gain assistance from High Court sentencings in R v Rawiri & ors, T014047, Auckland Registry, 16 September 2002.  There, after reviewing some of the cases, Fisher J concluded that in cases where death is due to deliberate violence to the person combined with other seriously aggravating factors the starting point for manslaughter will often fall in the range of 6 to 12 years.  He noted that the starting point of 12 to 14 years taken in the case of R v Te Rauna, T6/02, High Court, New Plymouth, 27 August 2002, of 12 to 14 years was a high watermark for cases of this kind.

[17]     It is submitted that having regard to the appellant’s relatively minor role in the killing that the starting point should have been towards the lower end of the range of 6 to 12 years identified in Rawiri.

[18]     Upon the material before us the appellant’s culpability appears to consist of the following factors.

1.   Involvement in the plan to obtain the deceased’s vehicle.

2.   Some actions not involving violence consistent with the furtherance of that plan.

3.   Drawing the presence of the hammer used in the murder to the notice of the others.

4.   Supporting the use of the hammer upon the deceased, although it seems that the appellant had the expectation that would knock him out rather  than kill him.

5.   Kicking the deceased in the body after he had been hit with the hammer in her absence.

6.   Assisting in moving the deceased’s body, when the appellant thought he was dead and when he was beyond saving.

7.   Sharing in the use of the stolen property.

[19]     What is particularly significant is that although the appellant had supported the use of the hammer on the deceased she was not present during its use, had not encouraged the extent of its use and was shocked and horrified when she returned to see its consequences.

[20]     When allowance is made for the aggravating factors the sentencing Judge took into account in the starting point of 9 to 10 years the true starting point would appear to be of the order of 9 years.  We say that because the only aggravating feature really relied upon by the sentencing Judge is a group attack upon a defenceless vulnerable older person.  In the particular circumstances that is hardly a significant aggravating feature.  The appellant was not a member of a gang.  She coincidentally met the other participants and lent herself to their plans.

[21]     We will return to what we regard as an appropriate starting point in our overall assessment of the case.

Disparity with other sentences, particularly Ms Te Rauna’s

[22]     The appellant submits that the difference between the sentence of 8 years and 9 months imposed on Ms Te Rauna and that of 8 years and 3 months imposed on the appellant is inadequate given the appellant’s lesser role.  This is despite the additional discounts that Ms Te Rauna was entitled to for giving Crown evidence and for a guilty plea prior to trial.  Further it is submitted that when compared with the sentences imposed on young offenders in the Rawiri case the sentence is excessive.

[23]     We do not find it helpful to endeavour to compare the sentences in the present case with those in the Rawiri case, particularly as the Rawiri sentencing is subsequent to that of Ms Te Rauna.  Nor can the difference between Ms Te Rauna’s sentence and the appellant’s sentence be looked at in isolation from other factors.  On the one hand there were arguable differences in culpability favouring the appellant, but on the other hand there was a substantial difference in the discount Ms Te Rauna could expect as a result of not only her earlier guilty plea but her significant assistance to the Crown during the course of the trial.  As a result the usual arguments relating to disparity can have very little application to the facts of this case.

Discount for mitigating factors

[24]     The appellant argues that a greater discount should have been given for her age, remorse and lack of previous convictions.  Once again her case is compared with Ms Te Rauna’s and other cases.

[25]     It is accepted that the Judge recognised the mitigating factors relating to the appellant’s age and the absence of previous convictions.  It is suggested that he failed to take into account the reduced culpability due to immaturity and intellectual and moral understanding compared with an adult and the effect of imprisonment on a young offender, including the very real dangers in lengthy terms of imprisonment.  However these are the very features that require a discount in the case of a young offender and the Judge has recognised that.  Whether he has made a sufficient discount is another matter.

[26]     The one area in which the appellant’s submissions appear to have more substance is that the Judge does not appear to have taken into account the remorse of the appellant.  Understandably because of the late plea of guilty the Judge felt he could give little discount for that plea.  Although he had noted the shock and horror of the appellant in discovering what had occurred to the deceased he at no time appears to have referred to her remorse.  It is submitted that from the time she acknowledged her involvement the appellant had been genuinely remorseful and shown it both then and at the trial and subsequently.  The pre-sentence report recorded that the appellant fully accepted and did not attempt to justify or minimise her part of assisting her co-offenders to drag the deceased’s body.  The report writer and a person working with the appellant were satisfied that the appellant was genuinely remorseful.

[27]     It is submitted that even if she had wanted to, the appellant could not have obtained a discount for assisting the Crown because she was not present during the time of the offence.  Thus it is suggested that when her position is compared with that of Ms Te Rauna she has been denied the opportunity for a discount when she was never in a position to earn one in the same way.  In retrospect it is perhaps a pity that the Crown and the appellant had not pursued the possibility of an increased discount if the appellant pleaded guilty to manslaughter and gave evidence for the Crown.  It is true she was not present when the fatal blows were struck but her openness about all the surrounding events of significance, except perhaps her having the bankcard, might well have resulted in the trial taking a different course.

Crown response

[28]     The Crown supports the sentence imposed and submits it was well within the Judge’s sentencing discretion.  In particular it is submitted that the Judge was entitled to view the roles of the appellant and Ms Te Rauna as broadly comparable once the earlier guilty plea and giving of evidence for the prosecution was taken into account.  They both helped plan and execute what was ultimately a violent and callous killing of a defenceless victim.  The appellant, it is submitted, on one view of the facts, although not that found by the Judge, set up the events that followed, left the scene while others carried out the plan, helped to dispose of the victim, careless of whether he was alive or dead, and took a leading role in the use of his possessions.  The latter circumstances in particular are said to justify a sterner sentence than those in Rawiri relied upon by the appellant.

Assessment

[29]     Having regard to the extent of her culpability, her age and her remorse along with the other mitigating circumstances, we consider that the sentence imposed upon the appellant was manifestly excessive.

[30]     We do not for one moment seek to minimise the consequences of the joint offending of the members of the group for the relatives of the victim.  It was a horrible and unnecessary crime and the distress of the deceased’s relatives is thoroughly understandable.  We are, however, concerned here with the role of one member of the group who was not present during the killing and who expressed remorse for her limited part in what occurred.

[31]     In our view the maximum starting point that it would have been possible to take for the appellant’s culpability in respect of the killing would have been of the order of 8 years.  The appellant’s involvement in the killing, as opposed to earlier and later events, was too limited to justify anything more. The Judge would have been entitled to increase that slightly for the aggravating factors that he had identified, but only slightly as they were not extreme aggravating factors.  He would then have had to have given a considerable discount for the age of the appellant combined with the true remorse and other mitigating circumstances identified.  The appellant’s openness to the police, the absence of previous convictions, and her ultimate plea of guilty to manslaughter would have been the other mitigating factors which had to be taken into account.  Although the Judge has criticised the appellant’s actions in not seeking to plead guilty to a manslaughter charge at an earlier time, her age must be taken into account and we cannot imagine that the ultimate responsibility for the course that was followed was hers.  Given all those circumstances the appellant could not, in our view, have properly been sentenced to anything more than 6 ½ years’ imprisonment.

[32]     The sentence imposed might have been appropriate for an adult offender after trial.  It cannot be an appropriate one for a young first offender, who pleaded guilty, albeit late, and had the other mitigating circumstances mentioned.

Result

[33]     The sentence under appeal is quashed and a sentence of 6½ years’ imprisonment substituted.

Solicitors

Govett Quilliam, New Plymouth for Appellant
Crown Solicitors, New Plymouth