The Queen v Shepherd

[2008] NZCA 17

IN THE COURT OF APPEAL OF NEW ZEALAND

CA253/07
[2008] NZCA 17

THE QUEEN

v

DEAN JOSEPH SHEPHERD

Hearing:11 February 2008

Court:Glazebrook, John Hansen and Wild JJ

Counsel:P T R Heaslip for Appellant

K Hastie and N P Chisnall for Crown

Judgment:22 February 2008 at 11.30am

JUDGMENT OF THE COURT

AN EXTENSION OF TIME TO APPEAL AGAINST BOTH CONVICTION AND SENTENCE IS REFUSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by John Hansen J)

[1]       The appellant was indicted on a charge of murdering his former landlady, Darunee Aphiromlerk on 3 October 2004.  His trial commenced on 1 May 2006.  On 8 May, on the request of the appellant’s counsel, the trial was adjourned to enable instructions to be taken.  On 9 May 2006 the appellant was re-arraigned and pleaded guilty to murder.  He was convicted, and on 2 November 2006 was sentenced to life imprisonment with a minimum term of 17 and a half years.

[2]       The appellant seeks an extension of time to appeal.  His unexplained delay in appealing would in itself be a sufficient ground to refuse an extension.   But we prefer to refuse an extension of time because the appeal lacks any merit.

Background

[3]       The deceased was the appellant’s landlady.  On a spasmodic basis he carried out work for her.  On the day in question the appellant took umbrage with the deceased because she made demeaning comments about him and his family and because she had not paid him for some work he maintained he had carried out.  She was also pursuing him for unpaid rent.  He assaulted and restrained the deceased, tying her hands behind her back, and tying her ankles.  He then wrapped her in a duvet where further ties were applied.  After dark he placed her in her vehicle and drove her to Mercer.  In a small lay-by near the Whangamarino swamp inlet he parked the vehicle.  He sat with the deceased for several hours deciding what he should do.  He says the deceased was still alive and pleading to be let go.  He then removed her from the duvet and removed the duvet inner.  He placed her back inside the duvet cover and tied the end closed.  He tied the outside of the duvet with a strap and with rope he found near where he was sitting.  According to the appellant, the deceased was still alive at that time.  He carried her out onto the railway bridge which crosses the Whangamarino swamp inlet and threw her into the water.

[4]       After this he drove her vehicle back towards Auckland, on the way burying credit cards belonging to the deceased, throwing her watch from the vehicle and discarding her handbag and purse.  He then threw her cellphone from the vehicle into a creek.  He drove to his home where he stayed for several days contemplating what he had done.  He then returned to the deceased’s address where he stole her 29-inch television which he placed into the rear of her motor vehicle.  He drove to an associate’s address in Otara, where he sold the television for cash and cannabis.  He parked the car in Epsom and discarded the keys in a creek in Manurewa.

[5]       The following night he returned to where he had buried the credit cards and dug one of these up.  He endeavoured, unsuccessfully, to withdraw funds from her account.  He discarded the card in pieces on the southern motorway.

The appeal

[6]       It is clear by appealing the conviction the appellant has adopted the correct procedure.  The inherent jurisdiction of the High Court to grant leave to vacate a guilty plea does not innure after sentence: R v Le Page [2005] 2 NZLR 845 (CA).

[7]       It is only in exceptional circumstances that an appeal against conviction will be entertained following a plea of guilty.  This Court stated in Le Page that an accused had to show a miscarriage of justice would result if the conviction was not overturned.  If an accused appreciated the merits of his position and made an informed decision to plead guilty the conviction cannot be impugned: R v Stretch [1982] 1 NZLR 225 (CA).

[8]       In Le Page at [17], [18] and [19] this Court identified at least three broad situations where a miscarriage of justice will be indicated. The first is where an appellant failed to appreciate the nature of, or did not intend to plead guilty to, a particular charge. The second is where on the admitted facts the appellant could not in law have been convicted of the offence charged. The third is a category where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law. The last category has no application in this case.

[9]       The appeal against conviction is advanced on the ground that the necessary elements of the crime of murder were not present when the appellant pleaded guilty.  As a subsidiary submission, Mr Heaslip maintained that this Court could only consider the evidence adduced at the trial before the entry of the guilty plea and the agreed statement of facts upon which Potter J sentenced.

[10]     Both submissions are misconceived for the following reasons:

(i)In pleading guilty, a properly advised accused must be taken to accept that the necessary elements of the crime are present.  There is no suggestion here that the appellant was not properly advised (Stretch, Le Page).

(ii)Even if we limit the material that we consider in the way suggested by Mr Heaslip, the elements of murder are clearly made out:

¨   The appellant assaulted and subdued the deceased.

¨   He tied her hands behind her back, and tied her ankles, placed her in a duvet and tied her in that.

¨   He waited until after dark before driving to the area near the Whangamarino swamp. 

¨   Later he unwrapped her from the duvet and removed the inner.  He then placed her back inside the duvet cover, tied a strap and rope around the duvet and tied the end closed. 

¨   He then carried her out onto the railway bridge and threw her into the water. 

These facts form the necessary elements of murder.  The whole of Mr Heaslip’s submission was predicated on the basis that the summary of facts did not contain the words “threw her into the water”.  When confronted with this, he accepted it created difficulties, but maintained there remained the possibility that the accused might have taken steps to pull her from the water.  This is specious.  The simple fact is he did not.

(iii)We do not accept Mr Heaslip’s novel contention as to the limited material we can consider.  Essentially what is being alleged is that a miscarriage has occurred.  In considering whether or not a miscarriage has occurred it is appropriate to consider all relevant admissible material.  That includes the appellant’s unchallenged statements to the police which make the case against him overwhelming:

¨   In the transcript of a video interview between the accused and Detective Love, which was by way of a reconstruction on 17 November 2004, the appellant stated:

Q. What were you going to do.

A. Um, yeah just um get rid of her.

Q. Get rid of her.

A. Mm

Q. And by that you mean.

A. Um, take her life.

Q. Take her life.

A. Mm.

¨   In an earlier interview on 16 November 2004 he was asked:

Q. What else did she say.

A. She just said nothing, I just dragged her, dragged her over the, threw her in.

This is repeated in other portions of the interview.

[11]     It follows that this appeal against conviction is not only misconceived, it is misguided.  It is for those reasons that we refuse an extension of time to appeal against conviction.  Indeed, we are satisfied that the attempt to appeal against conviction is so misguided that it is appropriate to refer a copy of this decision to the Legal Services Agency, and the Registrar is requested to do that.

Appeal against sentence

[12]     Section 104 of the Sentencing Act 2002 states:

104     Imposition of minimum period of imprisonment of 17 years or more

The court must make an order under section 103 imposing a minimum period of imprisonment of at least 17 years in the following circumstances, unless it is satisfied that it would be manifestly unjust to do so:

(a)       if the murder was committed in an attempt to avoid the detection, prosecution, or conviction of any person for any offence or in any other way to attempt to subvert the course of justice; or

(b)      if the murder involved calculated or lengthy planning, including making an arrangement under which money or anything of value passes (or is intended to pass) from one person to another; or

(c)       if the murder involved the unlawful entry into, or unlawful presence in, a dwelling place; or

(d)      if the murder was committed in the course of another serious offence; or

(ea)     if the murder was committed as part of a terrorist act (as defined in section 5(1) of the Terrorism Suppression Act 2002); or

(e)       if the murder was committed with a high level of brutality, cruelty, depravity, or callousness; or

(f)       if the deceased was a member of the police or a prison officer acting in the course of his or her duty; or

(g)       if the deceased was particularly vulnerable because of his or her age, health, or because of any other factor; or

(h)      if the offender has been convicted of 2 or more counts of murder, whether or not arising from the same circumstances; or

(i)       in any other exceptional circumstances.

Potter J considered the provisions of (e) and (g) applied.

[13]     Mr Heaslip accepted that finding.  But he submitted that it would be manifestly unjust in the circumstances of this case to impose a minimum period of 17 years.  He said the factors leading to this submission were the appellant’s personality disorder, his guilty plea and the level of provocation from the abuse he received from the deceased. 

[14]     In our view the Judge inevitably reached the conclusion that the requirements of paragraph (e) and (g) were met.  The appellant unlawfully entered the deceased’s dwelling house.  There was a high level of cruelty and callousness in that the deceased was kept alive for a considerable period of time before she was thrown from the bridge knowing the inevitability of her fate. 

[15]     Regrettably, many persons convicted of murder suffer from personality disorders.  Here, the guilty plea was late, well after the trial had commenced. 

[16]     This Court, in R v Williams [2005] 2 NZLR 506 at [66] confirmed that there is a robust approach to determining whether there is manifest injustice. This Court said the specified minimum period is not to be departed from lightly. As stated at [67]:

We conclude that a minimum term of 17 years will be manifestly unjust where the Judge decides as a matter of overall impression that the case falls outside the scope of the legislative policy that murders with specified features are sufficiently serious to justify at least that term. That conclusion can be reached only if the circumstances of the offence and the offender are such that the case does not fall within the band of culpability of a qualifying murder. In that sense they will be exceptional but such cases need not be rare. As well, the conclusion may be reached only on the basis of clearly demonstrable factors that withstand objective scrutiny. Judges must guard against allowing discounts based on favourable subjective views of the case. The sentencing discretion of Judges is limited in that respect.

[17]     Nothing has been pointed to that would establish manifest injustice to the requisite standard to depart from the 17 year minimum.  In this case the Judge has determined a small uplift was appropriate, and we take no issue with it.

[18]     Accordingly, we refuse an extension of time to appeal against sentence.

Solicitors:
Crown Law Office, Wellington