The Queen v WEN Hui Cui
[2006] NZCA 275
•28 September 2006
In the Court Of Appeal of New Zealand
CA333/05
THE QUEEN
v
WEN HUI CUI
Hearing:20 June 2006
Court:William Young P, Wild and Heath JJ
Appearances: A Shaw and C P Comeskey for Appellant
B J Horsley and K E Salmond for Respondent
Judgment:28 September 2006 at 2.15 pm
| JUDGMENT OF THE COURT |
A Leave to appeal out of time is granted.
B The appeal against conviction is dismissed.
C The appeal against sentence is dismissed.
___________________________________________________________________
REASONS OF THE COURT
(Given by Heath J)
Table of Contents
Para No
Introduction [1]
The issues [4]
The events of the night of 13 April 2003 [10]
Structure of summing up [25]
Analysis of grounds of conviction appeal [40]
The Crown’s closing on intoxication [40]
Intoxication/attempted murder [55]
Ought the Judge to have commented on Dr Jansen’s evidence? [58]
Inter-relationship between intoxication and provocation directions [65]
Admissibility issues - photographs [80]
The sentence appeal [94]
Result [122]
Introduction
Following a trial before Potter J and a jury in the High Court at Auckland, Wen Hui Cui was convicted on two counts of murder and one of attempted murder. The charges arose out of an incident that occurred on the night of Sunday 13 April 2003 at Auckland.
Mr Cui admitted that he fatally stabbed his former girlfriend, Bin Lin and a man called Ge Li, who was an acquaintance of Ms Lin encountered by Mr Cui as he fled after stabbing Ms Lin. Mr Cui also accepted that he stabbed a second man, Jun Xin, giving rise to the attempted murder charge.
The central issue at trial was whether the Crown had proved the requisite intent to kill on the part of Mr Cui. Mr Cui claimed that he had acted in self-defence or had acted in response to provocation. To support those contentions he relied, in part, on evidence of his own intoxication at the relevant time.
The issues
Mr Cui seeks leave to appeal out of time against both conviction and sentence. We are satisfied that an adequate explanation has been given to justify leave being granted. We grant leave to appeal out of time.
On the conviction appeal, counsel for Mr Cui, submitted that:
a.The trial Judge failed to correct a mis-statement of the law made by counsel for the Crown in his closing address, either immediately after the statement had been made or, subsequently, in her summing up. Further, this error was compounded by the Judge repeating, in paraphrased form, the mis-statement in her summation to the jury. The mis-statement concerned the relevance of intoxication to proof of an intent to kill.
b.The Judge failed to provide any directions to the jury on the effect of intoxication on questions of intent arising on the attempted murder charge.
c.The Judge failed adequately to summarise the kernel of evidence given by a psychiatrist called by the accused. That evidence was designed to assist the jury to evaluate the likely effect of the alcohol consumed by Mr Cui on his ability to form an intent to kill.
d.The Judge failed to provide any direction to the jury on the relevance of intoxication to the partial defence of provocation.
e.The Judge erred in admitting photographs taken at Ms Lin’s post-mortem, depicting her in a state that could readily be explained to the jury without the need for graphic photographs.
f.The Judge erred in declining to admit photographic images recovered from Ms Lin’s computer showing a person who bore a resemblance to Mr Xin. This is said to be relevant to questions of provocation.
g.On the sentence appeal, it was submitted that the Judge erred in imposing a minimum non-parole period in excess of the 17 years required by s 104 of the Sentencing Act 2002. It is also alleged that the Judge erred either in failing to take into account, or in giving insufficient weight to, an offer to make amends to the families of the deceased and to the surviving victim.
h.Mr Shaw submitted that the alleged errors, either independently or cumulatively, established a miscarriage of justice and justified the convictions being set aside.
For the Crown, Mr Horsley, submitted that:
j.Although the Judge did repeat an erroneous statement of the law made by Crown counsel in his closing, her earlier (correct) directions on the relevance of intoxication, coupled with the way in which questions of intent were formulated in a questionnaire provided to assist the jury in their deliberations, meant that no error of law was made by the Judge on this issue. There was no realistic prospect that the jury could have been misled by what they were told by the Judge.
k.The Judge dealt fully and accurately with all questions of murderous intent, including the different approaches to intent to kill taken in respect of the charges of murder and attempted murder respectively.
l.Having regard to the way in which counsel for the accused presented Mr Cui’s case to the jury, the Judge sufficiently summarised evidence given by the psychiatrist in a section of her summing up. The Judge dealt expressly with the inferences open to the jury on the evidence.
m.There was no obligation on the Judge, in the circumstances of this case, to direct specifically on the relevance of intoxication to the partial defence of provocation.
n.The Judge acted within her discretionary powers in determining to admit those photographs of Ms Lin’s post-mortem to which objection was taken at trial. Further, she correctly determined not to admit the photographic images taken from Ms Lin’s computer.
o.The minimum non-parole period imposed by the Judge was within the range available to her. It was consistent with minimum sentences imposed in other cases of multiple homicide.
p.The Judge correctly determined that no weight ought to be given to the offer to make amends.
q.In the event that we were to hold that the Judge did make an error of law, Mr Horsley submitted that we ought to apply the proviso to s 385(1) of the Crimes Act 1961 and dismiss the appeal. He submitted that the return of guilty verdicts was inevitable, having regard to the strength of the Crown case.
The events of the night of 13 April 2003
a.At the time of the incident Mr Cui was 22 years old. He had been in a relationship with Ms Lin for approximately three months. She shared a room with Mr Cui in a house in which he lived on Auckland’s North Shore. A few days before 13 April 2003, Ms Lin had told Mr Cui that their relationship was at an end.
b.On Sunday 13 April 2003, Ms Lin returned to Auckland after seeing friends in Rotorua. She arranged to visit the North Shore address to uplift some possessions. Mr Cui was at home. He sat in the lounge and consumed about a quarter of a bottle of bourbon.
c.At some point, Mr Cui equipped himself with four knives from a box in the kitchen and took them to his bedroom.
d.Ms Lin arrived with two friends, Mr Li and Mr Xin. They waited for her outside the dwelling in their car. Ms Lin went into the house and up to Mr Cui’s bedroom.
e.Not long afterwards, Mr Li and Mr Xin heard screaming from the bedroom. They recognised Ms Lin’s voice. They called 111 to alert emergency services to what they believed to be an attempted rape.
f.In the period between the 111 call and the arrival of the Police, Mr Cui stabbed Ms Lin and slit her throat from side to side. Multiple stab wounds were inflicted.
g.Mr Cui’s evidence was that he inflicted the fatal wounds on Ms Lin either in self-defence or in response to verbal provocation from her.
h.Notwithstanding his assertions of acting in self-defence or in response to provocation, Mr Cui took steps to avoid detection. In our view, those steps bore the hallmarks of deliberate action, as opposed to those of a person acting under the influence of alcohol.
First, Mr Cui went to the bathroom and washed away blood from his clothing. He changed his clothes, put on two jackets, put cash and some other items into his pocket and left the house through the front door.
j.Mr Cui had become aware that two people were in the vicinity of the dwelling waiting for Ms Lin. When leaving the dwelling, Mr Cui took a large kitchen knife with him. As he walked out the front of the door he encountered Mr Li and Mr Xin.
k.Mr Cui stabbed Mr Li in the heart with the kitchen knife, causing his death. Next, he stabbed Mr Xin. While seriously wounded, Mr Xin managed to alert neighbours to his predicament and gain assistance. Fortuitously, Mr Xin survived the attack as a result of prompt surgical interventions.
l.Mr Cui fled the scene to avoid detection. He telephoned a friend for assistance, using a mobile telephone that did not belong to him. The friend uplifted Mr Cui in his car and continued to assist Mr Cui until he learnt what had happened. He declined to assist further. Mr Cui left that car.
m.Another friend was persuaded to collect Mr Cui. Mr Cui said he did not want to go to jail and that he wanted to get away. He was taken to Paihia where he booked into a motel in the early hours of Monday 14 April. He remained there until he was arrested by the Police some days later.
n.At trial, Mr Cui’s counsel put his case on the basis that Ms Lin had taken up a knife and attacked Mr Cui. Due to fatigue, lack of food, lack of sleep, consumption of pills that may have contained morphine and consumption of a large amount of bourbon, his response to Ms Lin’s actions was to carry out the acts described.
o.By their verdicts, the jury must be taken to have rejected:
p.the claims of self-defence and provocation;
q.the reasonable possibility that the killing of both Ms Lin and Mr Li occurred without a relevant murderous intent; and
r.the reasonable possibility of the attack on Mr Xin being made without an actual intent to kill.
Structure of summing up
a. Most points on appeal that deal with the intoxication issue criticise directions given to the jury by the trial Judge. In those circumstances, the structure of the summing up assumes particular importance. We must consider the summing up as a whole to determine whether the jurors may have been misled on the law they were to apply.
b. Potter J began by giving the standard introductory comments, including a short summary of the issues and observations about the respective roles of Judge and jury in a criminal trial.
c. The Judge summarised the nature of the case and the issues arising as follows:
[5] Before I start I want, if I can, to put the case in a nut shell for you. The defence do not dispute that the accused Mr Cui caused the death of [Ms Lin] and caused the death of Ge Li. Secondly, that he killed them by an illegal act, namely stabbing with a knife. However, the defence say that the accused is not guilty of murder and they put forward three separate grounds why that is so. First the defence say that Mr Cui acted in self-defence and therefore should be acquitted absolutely. Secondly they argue that he is guilty of manslaughter, not murder either because he did not have the necessary murderous intent or because he acted under provocation.
[6] In relation to count 3, the charge of attempted murder, the defence do not dispute that the accused stabbed Jun [Xin] but they say he should be acquitted of attempted murder on two separate grounds – either that he did not intend to murder or that he acted in self-defence.
a. Next, the Judge gave evidential directions, including directions about the use of the transcript of evidence. After doing that she explained the role and function of expert witnesses. Those directions are relevant to the way in which Dr Jansen’s evidence was explained to the jury. She said:
[22] A word about expert witnesses. There were a number of expert witnesses called in this case. You will remember the people from the ESR: Rian Morgan-Smith who gave evidence about blood staining and the dispersal of blood; Pauline Simon who carried out DNA analyses; Dr Simon Stables who was the pathologist who performed the post mortem on [Ms Lin] . . . and on Ge Li; Dr Pramod Giri who examined the accused on 16 April and Dr Karl Jansen who was the psychiatrist called for the accused.
[23] All those people came here as experts to give you the benefit of their expert evidence. You may well find their expert opinion of considerable assistance. But this is not a trial by experts, it’s a trial by jury. So ultimately it is for you to decide what evidence you accept and what you do not. Just because they are experts you do not have to accept their evidence. It is a matter for you. They came here to assist you with the benefit of their expert opinion. It is for you to decide whether to accept it.
a. Next, the Judge dealt with inferences. She gave the jury some assistance in identifying inferences the Crown asked be drawn from proved facts. By way of example, the Judge said:
The Crown contends that the relationship was over and that the accused knew [Ms Lin] had decided to end it. The Crown say that may be inferred from the evidence including the following matters –
[Ms Lin] telling her friend Jin Quian (witness no 6) that the relationship was shaky;
The accused phoning her at least 50 times when she was absent over a night;
The argument or dispute in town on the Friday before [Ms Lin] was killed;
[Ms Lin] going away over the weekend;
The accused’s pursuit of [Ms Lin] during that weekend – the phone calls he made, the visit to the place where she otherwise lived when he was told that [Ms Lin] was away with friends;
The information recorded by Dr Karl Jansen from the accused that [Ms Lin] phoned on Sunday and said she was coming over to pick up some things and that the relationship was over.
a. In this section of the summing up, the Judge dealt expressly with the need for the Crown to prove murderous intent. She referred to evidence from which counsel for Mr Cui asked the jury to conclude that the Crown had not proved murderous intent beyond reasonable doubt.
b. Among the five topics dealt with under that heading was the extent of Mr Cui’s intoxication. The Judge summarised Mr Cui’s position on that topic as follows:
The accused was devoted to [Ms Lin];
The relationship was a loving and continuing one. That was the accused’s evidence and I have referred to the diary note of [Ms Lin] and the inferences the defence say can be drawn from that;
On the night of 13 April 2003 the accused was not in a normal state. On his evidence –
He had not been sleeping;
He had had little to eat;
He had been taking pills for headaches which may have contained morphine but as we know there is no clear evidence on that;
He was intoxicated – he had consumed 250 mls of Jim Beam when he rarely drank spirits and that would have produced a level of alcohol in his blood, approximately twice the legal limit for driving. That is the evidence of Dr Karl Jansen. The defence referred to the lack of evidence of any glassware in the lounge which the defence submitted provides the basis for an inference that the accused drank from the bottle;
He was very stressed by the circumstances;
On the accused’s evidence [Ms Lin] picked up the knife and he responded in self-defence.
a. A specific direction was given to the jury on the relevance of intoxication to intent. That direction is unimpeachable. Potter J said:
[38] It needs to be clearly understood that intoxication is not, of itself, a defence to any charge.
[39] The only relevance of evidence about intoxication is as to intent. At issue in this case is murderous intent, i.e. intent to kill or to inflict bodily harm which the accused knew was likely to cause death. I have already mentioned that the decision about whether you are satisfied about intent will come from a consideration of the inferences or conclusions you consider you may properly draw from the evidence you regard as credible and reliable. One of the pieces of evidence you will take into account is the evidence about the accused’s state of intoxication.
[40] It is often the case of course that people may do things when intoxicated that they would not do when sober. We have probably all had that experience. But the law is that an act that is intentionally done – even if the intent is fuelled by alcohol – is something the person is responsible for. A drunken intent is still an intent.
[41] But if, having considered all of the evidence, you think it is a reasonable possibility that the accused was so grossly intoxicated that he did not form any conscious intent at all, then you would have to say that you had a reasonable doubt about the issue of intent, and the Crown would not have proved that issue to the necessary standard.
[42] The Crown needs to leave you satisfied that the accused intended to do what he did, even if it was an intent formed while affected by alcohol to some degree. Intoxication is only a factor in deciding issues of intent, if you think it was reasonably possible that the accused was so drunk that he did not form the murderous intent which the Crown allege.
a. Next, the Judge warned the jury about inappropriate reliance on prejudice or sympathy and explained the onus and standard of proof. She directed the jury on the specific charges, telling them that the “information sheet” she had provided to them was to be regarded as “a road map of essential steps that I hope will assist in your deliberations”. We refer to that document as the jury questionnaire.
b. The Judge made it clear that she would explain in detail some of the concepts involved but added that she thought it would be helpful to the jury to work through that questionnaire during their deliberations.
c. The Judge dealt with the two charges of murder. She outlined the essential ingredients to be proved, in doing so she was plainly referring to the jury questionnaire. After those initial comments, the Judge referred to the need to prove murderous intent, dealing specifically with the alternative possibilities of an actual intent to kill or causing bodily injury known to be likely to cause death and being reckless whether death ensues or not.
d. The Judge then directed on the attempted murder charge. Referring to the questionnaire, she said:
[72] If you move to the second sheet I can deal very briefly with attempted murder, that is Count 3 in relation to Jun Xin. There are two issues for you there. Did the accused intend or mean to kill Jun Xin, that is, only the first of the alternatives that apply under 1 and 2. Simply did he intend to kill Jun Xin? And did he carry out an act for the purpose of carrying that intention into effect? In relation to the second issue it is not disputed that the accused stabbed Jun Xin. So the issue for you in relation to Count 3 will simply, be did he intend to kill Jun Xin? It is irrelevant that his attempt was unsuccessful.
a. Specific directions were then given on self-defence and provocation. It is clear from those directions that the Judge intended that the jury rely on her earlier directions on the relevance of intoxication to proof of intent to kill. She made no specific reference to intoxication when dealing with self-defence and provocation. Nor was the topic of intoxication mentioned expressly in those parts of the jury questionnaire that dealt with self-defence and provocation respectively.
b. Finally, the Judge summarised briefly the cases for the Crown and the accused, concluding with standard directions concerning the need for a unanimous decision and the process to be followed when verdicts were taken.
c. After the jury retired, counsel raised some issues with the Judge. The Judge asked the jury to return to Court for further directions. After the jury returned, the Judge said:
There are two matters that counsel have asked me to clarify with you. I spoke to you about intoxication and that it is a matter relevant to intent. I need to make it clear that it is relevant to the issue of intention to kill and the alternative of intention to cause bodily injury under Point 3 in Counts 1 and 2 on the information sheet. Intent is an essential ingredient and it can arise in two ways, and intoxication is relevant to both. That is the first point.
The second point is this, that the accused gave evidence of a comment made by one or other of the two men outside. I referred to the comment “Go fuck your mother”. The accused also gave evidence of a comment “You want to die?” He actually wrote it down in Chinese characters which I think is an exhibit you will have with you translated as “You want to die”. Counsel have asked me to refer that to you and to draw to your attention that it is, along with the comment “Go fuck your mother”, a piece of evidence that you would need to consider in relation to both self-defence and provocation. Those are the two matters.
[Counsel for Mr Cui]: Thank you Your Honour.
Analysis of grounds of conviction appeal
The Crown’s closing on intoxication
a. During the course of his closing address to the jury, counsel for the Crown submitted that the question for their determination was whether Mr Cui was so intoxicated that he was incapable of forming an intent to kill. While we do not have the precise words used by counsel to the jury, those remarks were paraphrased by the Judge in that way in her summing up. Mr Horsley accepted that the Judge’s words accurately reflected the language employed by counsel for the Crown at trial.
b. In the course of summarising the Crown case, Potter J said:
[98] In relation to intoxication, [Counsel for the Crown] submitted that the question for you is: Was the accused so intoxicated that he was incapable of forming the intent to kill? He submitted the acts of the accused are clearly acts of a person who is in control before, during and after he killed. [Counsel] for the Crown sought guilty verdicts on all three counts.
a. It is clear that the paraphrased statement does not represent the law. The real question for the jury was whether, in fact, Mr Cui had formed a murderous intent. In R v Kamipeli [1975] 2 NZLR 610 (CA) this Court said, at 616:
Drunkenness is not a defence of itself. Its true relevance by way of defence, so it seems to us, is that when a jury is deciding whether an accused has the intention or recklessness required by the charge, they must regard all the evidence, including evidence as to the accused’s drunken state, drawing such inferences from the evidence as appears proper in the circumstances. It is the fact of intent rather than the capacity for intent which must be the subject matter of the inquiry. The alternative is to say that when drunkenness is raised in defence there is some special exception from the Crown's general duty to prove the elements of the charge. We know of no sufficient authority for that, nor any principle which justifies it.
a. Mr Shaw submitted that the Judge was obliged to correct the erroneous statement made by counsel for the Crown in closing. He submitted that she ought to have done so immediately after the statement was made, at the end of the Crown closing or, at the very latest, when summarising the Crown case. Mr Shaw submitted that the Judge’s failure to correct that statement might have been viewed, by the jury, as an implicit endorsement of its validity.
b. In R v Kaluza CA129/03 12 November 2003, this Court considered mis-statements of fact made in a closing address by counsel for the Crown. The mis-statements were made on three occasions. The Judge repeated counsel’s expression in his summing up and did not tell the jury that it was an inappropriate thing for counsel to have said.
c. The Court allowed Mr Kaluza’s appeal and ordered a new trial. Blanchard J, for the Court, said:
[20] It is unfortunate that the Judge did not deal directly with the way in which the matter had been put by counsel for the prosecution. He dealt with the problem somewhat indirectly in the final sentence but, in the context of this trial, we would be prepared to accept that the jury would have understood that an innocent explanation was a reasonable possibility and that the appellant's lie did not provide proof of his guilt.
[21] Once again, however, the corrective work of the direction was undone when the Judge summarised the Crown address because, without adverse comment, he referred to the statement of the prosecutor that “most often people lie because they have been caught doing something they know is wrong”. The Judge actually reminded the jury that counsel had said that was Mr Kaluza's reason for lying.
[22] We have concluded that in both respects the Judge's directions have been inadequate to correct inappropriate remarks in the Crown's closing address and that accordingly the jury's verdict cannot stand.
a. Mr Shaw submitted that we should follow the same course in this case. In his submission, contrary to the position taken by Mr Horsley, the closing remark was a material error which, without correction from the Judge, could have misled the jury to approach the evidence of intoxication in an illegitimate manner, prejudicial to the accused.
b. Mr Shaw submitted that although there was no authority for this proposition in New Zealand, there was an overriding obligation on a Judge to correct any material mis-statement of law made by counsel in closing addresses.
c. Mr Shaw referred us to American Jurisprudence (2 ed 1991) Vol 75A at [640]. The learned authors said:
The trial judge has the right and responsibility to require that the jury get only the correct law; therefore, it is the judge’s responsibility to reduce the possibility of confusing the jury; he may do so by deciding what law is applicable and prevent counsel from arguing law which the judge deems inappropriate. Misstatements of law are impermissible during closing argument, and a positive and absolute duty, as opposed to a discretionary duty, rests upon a trial judge to restrain such arguments. However, it has been held that a prosecutor is not guilty of misconduct with regard to his argument of the law to the jury, if he is wrong as to the law, misconduct occurring only where an erroneous proposition of law was argued in bad faith. [our emphasis; citations and footnotes omitted]
a. It is clear that counsel for the Crown was wrong to put the issue of intoxication to the jury on the basis of capacity to form an intent to kill. However, the real question is whether the Judge left the jury with clear guidance on the test it should apply. In this particular case, there are two reasons why the failure of the Judge to correct what was said by Crown counsel immediately cannot amount to a miscarriage of justice.
b. First, the structure of the summing up involved an early discussion of the law relating to the effect of intoxication on murderous intent. The Judge made it clear, correctly, that the only relevance of evidence about intoxication was to the issue of intent. See the directions set out at [32].
c. Second, the questionnaire distributed to the jury by the Judge, to which she expressly referred before taking the jury through the essential elements of murder and attempted murder, focused on the need to prove intent. There is no reference, in the questionnaire to capacity to form a murderous intent.
d. The questionnaire for count 1 was put in the following terms:
Count 1 – Murder
(1) Did the accused kill Bin Lin? (Not disputed)
(2) By an unlawful act? (Not disputed)
If (1) and (2) are proved Manslaughter is proved – Move to (3)
(3) Did the accused when he killed Bin Lin –
a.intend to kill Bin Lin? or
b.intend to cause to Bin Lin bodily injury which he knew was likely to cause death, and was reckless whether death ensued or not?
If (3) is also proved, murder is proved.
If (3) is not proved, but (1) and (2) are proved, the verdict is manslaughter.
The form of questionnaire used for the attempted murder charge was formulated as follows:
Count 3 – Attempted murder
(1) Did the accused intend to kill Jun Xin? and
(2) Did the accused carry out an act for the purpose of carrying that intention into effect?
NOTE it is irrelevant that the attempt was unsuccessful.
a. The questionnaire was specifically designed as a framework for analysis to be used by the jury during its deliberations. It was available to jurors while the Judge was giving oral directions on the elements of the offences.
b. We are not satisfied that the failure to correct what was said by Crown counsel immediately gave rise to a miscarriage of justice. Nor, in light of the Judge’s directions and the terms of the questionnaire, do we consider that repetition of Crown counsel’s submission in paraphrased form caused any miscarriage. While the remark ought to have been specifically corrected (at some point) there is no realistic possibility that the jury was misled on the appropriate test to apply. This ground of appeal must fail.
Intoxication/attempted murder
a. Mr Shaw submitted that the Judge ought to have directed the jury on the relevance of intoxication to the requisite intent involved in the crime of attempted murder. No such direction was given.
b. The Judge did direct the jury on the need for the Crown to prove beyond reasonable doubt an actual intent to kill. Given the structure of the summing up, which we have already outlined fully, the jury could have been under no misapprehension that the directions on intoxication applied equally to the requisite intent for murder and attempted murder.
c. In our view, there is nothing in this point.
Ought the Judge to have commented on Dr Jansen’s evidence?
a. Dr Jansen is a psychiatrist who was called to give evidence on behalf of the accused to deal specifically with the impact of intoxication on the accused.
b. There is nothing in Dr Jansen’s evidence in chief that was likely to assist the jury in determining the specific impact of the alcohol consumed by Mr Cui shortly before the incident that led to Ms Lin’s death.
c. In re-examination, Dr Jansen accepted that a state of intoxication could deprive a person of the ability to form a specific intent to kill. That question was asked in response to a question put by Crown counsel suggesting that an intoxicated person could retain the ability to form an intent to kill. Those two pieces of evidence were both self-evident.
d. The only relevant evidence given by Dr Jansen concerned the quantity of alcohol consumed and the likely blood alcohol level that would have been produced from that. That evidence was summarised by the Judge when she reminded the jury of the inferences that Mr Cui’s counsel submitted could be drawn to negate proof of murderous intent: see [31] above.
e. There was no discussion, in the summary of the case for the accused, of Dr Jansen’s evidence. We do not find that surprising given the way in which Potter J summarised the issue. At [100] Potter J said:
The defence case as put by [Counsel for the accused] is that the accused had no intention to kill [Ms Lin]; that he acted in self-defence. When she took up a knife and attacked him, as the accused described in evidence, he responded to the situation as he saw it. He was not in a normal state of mind. He was suffering from lack of food, from fatigue through lack of sleep, he had been taking pills that may have contained morphine, he had taken hard liquor and that intoxication was a contributing factor, and he was under stress. These affected his thought processes.
a. That summary, to which no objection was taken at the conclusion of the summing up (despite other issues of intoxication being raised by counsel for the accused after the jury retired), identified intoxication as one contributing factor among many, not as a determinative factor in itself.
b. Although Mr Shaw placed greater emphasis, on appeal, on the intoxication evidence, we are satisfied that no error was made by the Judge in failing to refer to Dr Jansen’s evidence when summarising the defence case.
Inter-relationship between intoxication and provocation directions
a. Mr Shaw submitted that a fatal error was made through the judge’s failure to give any intoxication direction in relation to the partial defence of provocation.
b. Mr Shaw referred to R v Makoare CA469/99 18 April 2000 to support the proposition that the jury should be told of the relevance of intoxication to provocation. Delivering the judgment of this Court in Makoare, Blanchard J said:
[11] The submission for the appellant is that in twice telling the jury that intoxication had relevance to murderous intent but no relevance to provocation the Judge gave a misdirection. Mr O'Driscoll accepted, as he had to do, that intoxication is not a characteristic for the purposes of s169(2) and therefore irrelevant under para (a) but he was able to point to settled authority that it is to be taken into account under para (b) in determining whether the defendant actually lost his or her self-control and thus acted with murderous intent. In R v Barton [1977] 1 NZLR 295, 297 the judgment of this Court referred to a statement by Parke B in R v Thomas (1837) 7 C & P 817; 173 ER 356:
But drunkenness may be taken into consideration in cases where what the law deems sufficient provocation has been given, because the question is, in such cases, whether the fatal act is to be attributed to the passion of anger excited by the previous provocation, and that passion is more easily excitable in a person when in a state of intoxication than when he is sober. (820; 358)
[12] This Court also referred to the views of Glanville Williams and a line of Canadian authority to the same effect. In R v Fryer [1981] 1 NZLR 748, 753 and in R v McCarthy [1992] 2 NZLR 550, 558 that approach was confirmed.
[13] No doubt, when a jury considers that intoxication was a reason for a defendant's actual loss of self-control, often it may then also be inclined to think that the defendant has, because of its influence, not shown the self-control of an ordinary person in terms of para (a). It is possible however to imagine cases in which that conclusion may not follow (for example, where the defendant is a person whose greater than ordinary powers of self-control are reduced to ordinary levels by consumption of alcohol). But, more importantly, as Mr O'Driscoll pointed out, there must be the very real danger that a jury which is told that intoxication is not relevant to provocation will go first to the question of whether self-control was actually lost (para (b)) and, taking the direction to refer also to that paragraph, will consider that question upon the assumption that the drunken defendant was actually sober. If it consequently finds, on that false basis, that there was no actual loss of self-control, the jury may then not think it necessary to proceed to consider para (a) at all.
a. Section 169 of the Crimes Act 1961 provides:
169 Provocation
(1) Culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who caused the death did so under provocation.
(2) Anything done or said may be provocation if —
(a)In the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control; and
(b)It did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide.
(3) Whether there is any evidence of provocation is a question of law.
(4) Whether, if there is evidence of provocation, the provocation was sufficient as aforesaid, and whether it did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide, are questions of fact.
...
a. On the topic of provocation, Potter J said:
Provocation
[82] To sustain a verdict of murder the Crown must satisfy you beyond reasonable doubt that the accused did not cause the death of [Ms Lin] or Ge Li as the case may be, under provocation, as provocation is defined in s 169.
[83] The definition of provocation is complex. I have attempted to set it out in question form:
[a]The first is whether there are any acts or words of the deceased which amounted to provocation. It is the essence of the defence of provocation that it is the acts or words of the deceased which are the provocation. The critical acts or words in the case of [Ms Lin] are again given by the accused in evidence - her act of picking up a knife and attempting to stab him, and her referring to the accused’s “small dick” (if you accept the accused’s evidence on those matters). Those are the acts of provocation said to apply in respect of [Ms Lin]. In the case of Ge Li, that he is said by the accused to have said to the accused out in the street: “Go fuck your mother” or words to that effect.
[b]The second element, which is posed in question 2, is whether Mr Cui was in fact induced to kill Bin Lin or Ge Li as the case may be, through being deprived of the power of self-control by the provocation that was presented to him. You must bear in mind that a person is not deprived of the power of self-control simply because he is agitated, or frustrated or angry. Loss of the power of self-control entails a good deal more. The question is: At the time he killed, was the accused not in control of his own mind because of the provocation presented to him?
[c]The third essential element is whether the provocation presented to the accused was in the circumstances sufficient to deprive a person, who has the power of self-control of an ordinary person, of the power of self-control. So, you must make an objective assessment based on your experience and knowledge of what an ordinary person would have done in the circumstances of this case. An ordinary person is an ordinary New Zealander. Would an ordinary person have been induced to take the action Mr Cui did because of a loss of self-control caused by the provocation presented to him?
[84] You need to consider all the circumstances surrounding the fateful events on 13 April 2003.
[85] Certain factors will be important in your consideration –
[a]Whether you accept the evidence of the accused that these acts and words alleged as provocation, in fact occurred. In relation to [Ms Lin] his is the only evidence. In relation to Ge Li you would need to consider as well as the accused’s evidence, the evidence of Jun Xin, and you may consider that the evidence of Mr Devkurran has some relevance to the matter. But those are matters for you.
[b]Was the killing in the heat of the moment; an unresisted impulse in circumstances where an ordinary person would resist the impulse.
[c]Whether there was any evidence of deliberation, or preparation.
[d]Proportionality – did the stabbing bear a proper and reasonable relationship to the provocation, or was it such an extreme response to the acts which are said to be provocation that the response could not have been provoked by those acts.
a. Potter J set out s 169(2) in the jury questionnaire, but did not give specific guidance about the relevance of intoxication to the issue raised by s 169(2)(b).
b. Mr Horsley submitted that it was unnecessary for the Judge to address intoxication in the specific context of provocation, having already identified the relevance of intoxication. He distinguished Makoare: in that case the Judge had incorrectly told the jury that intoxication had no relevance, whereas, in this case, the Judge was silent on the issue. He submitted that the jury must have realised that the characteristic of intoxication was relevant to the provocation defence.
c. Alternatively, Mr Horsley submitted that any error could be cured by application of the proviso to s 385(1)(c) of the Act, there being no substantial miscarriage of justice.
d. As Mr Horsley submitted, Makoare was a case in which the Judge misdirected the jury by telling the jury, on two occasions, that intoxication was relevant to murderous intent but not to provocation. The error lay in the fact that a person might be more easily excitable when in a state of intoxication than when sober. Intoxication is relevant because the fatal act is linked to a passion of anger excited by conduct regarded by the law as provocative: see the extract from R v Thomas cited in [11] of Makoare.
e. Potter J said that the “only” relevance of intoxication was as to intent. If that remark were taken in isolation it would amount to a misdirection. However, we are satisfied that, when the remark is read in context, it can be seen as directed to the question of murderous intent rather than to the discrete question of provocation.
f. That conclusion is supported by the Judge’s specific reference to intoxication in the context of self-defence. The Judge’s deliberate inclusion of a reference to intoxication in the context of self-defence but not in the context of provocation can be explained by the way in which the case for the accused was put, as reflected in Her Honour’s summing up.
g. Further, Potter J’s directions would have brought home to the jury the need to have regard to “all the circumstances surrounding the fateful events on 13 April 2003” when considering whether provocation existed. A direction of the type to which Makoare refers would have added little to what Potter J said to the jury.
h. No misdirection on the law of provocation was suggested. However, there is one part of the direction on which we comment. We do so because it might be seen as inconsistent with R v Timoti [2006] 1 NZLR 323 (NZSC), a judgment given about a year later than Mr Cui’s trial.
The relevant direction of Potter J stated:
[85] Certain factors will be important in your consideration –
…
[d]Proportionality – did the stabbing bear a proper and reasonable relationship to the provocation, or was it such an extreme response to the acts which are said to be provocation that the response could not have been provoked by those acts.
a. Potter J’s direction appears to have been directed, in part, to the question whether Mr Cui, if exercising ordinary powers of self-control, would have killed the two victims. Timoti is authority for the proposition that the ordinary powers of self-control issue is to be assessed by reference to whether a person exercising ordinary powers of self-control would have reacted by killing. Delivering the judgment of the Supreme Court, Tipping J said, at [36]:
[36] The question now being addressed is not whether the accused did lose the power of self–control; rather it is whether the provocation was sufficient to cause the hypothetical person to do so. The accused’s actual response is no more than a distraction on this issue. The question concerns the response of the hypothetical person to the provocation actually found to have been given. Hence a direction which invites a comparison between the level of provocation and the accused’s response to it is inappropriate and apt to cause confusion on this second (evaluative) question.
a. In the context of the present case, the issue to which Tipping J referred did not assume prominence. It is difficult to envisage how Mr Cui could have killed the two victims more clinically. While, in the context of this case, no material misdirection arises, in future it will be necessary for trial Judges to be alive to the distinction drawn in Timoti in cases in which the issue assumes greater prominence.
Admissibility issues – photographs
a. Mr Comeskey submitted that the Judge ought not to have permitted three photographs to go to the jury. Each photograph depicted wounds to Ms Lin and were taken during the course of post mortem examination.
b. In determining to admit the evidence, the Judge gave no reasons. Nor was there any discussion of applicable legal principles. Rather, the transcript of the ruling suggests that the Judge made a judgment, after hearing brief argument, on which photographs ought to be removed from the jury’s consideration because they were too graphic.
c. It appears from the notes of evidence that, just after two of the three relevant photographs had been shown and explained to the jury, a retirement became necessary because one or more jurors became distressed. When the jury resumed no reference was made to the third photograph. In effect, the Judge directed the jury that they need not consider the photographs further.
d. Mr Comeskey submitted that this photographic evidence was not necessary to explain the injuries and could only have operated prejudicially against the accused.
e. Mr Horsley submitted that the photographs were relevant, were not particularly graphic and ought not to be considered as sufficiently prejudicial to conclude that there has been a miscarriage of justice.
f. The starting point for analysis is Cross on Evidence (Looseleaf ed) at [1.71]. The learned authors state:
1.71 Prejudicial photographs
Photographs revealing the gruesome features of a crime are admissible in evidence but are liable to be excluded if the Judge thinks that they will prejudice the jury against the accused to an extent out of proportion to their probative value. But photographic evidence may well be held necessary to tell the prosecution’s version of events to the jury in a realistic and easily comprehensible form. (footnote omitted)
a. Mr Comeskey referred us to William Young J’s judgment in R v Healy HC CHCH T126/97 30 April 1998. After referring to R v Baker [1989] 3 NZLR 635 at 639 (confirmed on appeal R v Baker CA361/89 19 March 1990), the Judge continued (at 13):
I find it difficult to see in this case that the pathologist could not adequately explain to the jury, if necessary using a model, the nature of the injuries from which Shae suffered. Case-hardened pathologists, counsel and judges may well under-estimate the distressing effect that photographs of this sort have on some jurors. The photographs in question show the progress of the dissection of this little girl’s head. It would hardly be surprising if some jurors found this extremely unpleasant; this to such an extent that they became significantly distracted from the evidence relating to the injuries. As well there is the ever present danger of prejudice to an accused arising.
It is sufficient to me to say here that, at least as presently advised, I do not see any particular evidential advantage to the Crown in the production of these photographs, whereas I do see that, individually, they will be extremely unpleasant for the jury and may well be, as a result, distracting and prejudicial. I cannot, of course, rule out the possibility that the way the case is run will warrant the pathologist referring to these photographs. For instance, if his description of the injuries or his opinions in relation to them are challenged it may be that he will not be able to respond adequately without referring to the photographs. Any ruling I give under s344A of Crimes Act, however, is necessarily provisional and capable of being reviewed by the trial judge. Obviously if the case takes a turn which I presently do not anticipate that warrants reconsideration of my ruling here, then this particular issue can be revisited.
As presently advised I am of the view that the photographs ought to be excluded and they are therefore ruled to be inadmissible.
a. As with other evidence, photographs are admissible if relevant to a fact in issue. If, as here and in Baker and Healy, the photographs show gruesome injuries or the effects of such injuries, then the Judge will need to consider whether their probative value outweighs the prejudice to the accused of the jury having such photographs. If what is shown in the photographs were a relevant and important part of the Crown case and can only adequately be demonstrated by a photographic means, then it should be admitted, the Judge directing the jury so as to minimise any illegitimate prejudice to the accused. That occurred in Baker, although this Court noted that the possible option of using a model had not been canvassed at first instance.
b. If what is sought to be demonstrated by gruesome photographs can equally well be explained by other means, then those means should be considered. That was the point William Young J made in Healy. That simply demonstrates that the probative value of the photographs in that situation will be less than if they were the only effective means of demonstrating the point.
c. The photographs the jury saw in this case were directly and highly relevant to the partial defence of provocation and to the defence of self defence. They show the accused slit Ms Lim's throat side-to-side in a manner that could be described as neat and almost clinical. We do not accept that this could have been conveyed adequately to the jury by other means, for example by the pathologist demonstrating using his own body, or by using a model. The power of a photograph and its superiority to spoken words is recognised in Elliott Goldstein's article Photographic and Videotape Evidence in the Criminal Courts of England and Canada [1987] Crim LR 384.
d. Conversely, we do not regard the photographs here as so gruesome or ghastly that the trial Judge should have ruled them out. Given their high probative value, that would have been an unusual course. The photographs of Ms Lin’s fatal injuries can be distinguished from the photographs in issue in Baker and Healy. In each of those cases, the photographs showed underlying bruising or fractures revealed by the peeling back of the scalp or face in the post mortem examination.
e. The second issue concerned photographs, supposedly of Mr Xin, located on Ms Lin’s computer. These were said to be relevant to the provocation defence, it being said that Ms Lin was having an affair with Mr Xin.
f. The problems with admissibility of this evidence are two-fold. First, there is no evidence to suggest that at the time he killed Ms Lin and attempted to kill Mr Xin, Mr Cui believed that the two of them had been having an affair. Second, there is no evidence to suggest that the photographs were indeed of Mr Xin or that, if they were, they represented anything more than the photograph of a friend collated alongside other photographs.
g. The evidence was not relevant to any issue in the trial. It had no probative value. For those reasons, the Judge was right to exclude the evidence.
Sentence appeal
a. Mr Cui was sentenced to life imprisonment with a minimum non-parole period of 19 years. The issue on the sentence appeal is whether the Judge was correct to impose a minimum non-parole period in excess of 17 years.
b. Relevantly, for present purposes, s 104 of the Sentencing Act 2004 provides:
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
...
(d) if the murder was committed in the course of another serious offence; or
...
(e) if the murder was committed with a high level of brutality, cruelty, depravity, or callousness; or
(h) if the offender has been convicted of 2 or more counts of murder, whether or not arising from the same circumstances; or
...
a. Mr Comeskey did not contend that the Judge was wrong to apply s 104. Plainly, the Judge’s conclusion was right. In our view, s 104 was engaged by virtue of paras (a), (d), (h), and, arguably, (e).
b. Mr Comeskey submitted that the Judge erred in imposing a minimum non-parole period in excess of 17 years. He submitted that the Judge overlooked or ignored two factors in reaching her decision: namely, an offer to make amends to family of the deceased and the principle that, in imposing sentence, the least restrictive outcome ought to be imposed, particularly when sentencing a relatively young person.
c. The Judge was referred to relevant authorities. However, because sentencing took place on 8 June 2004, all authorities predated R v Williams [2005] 2 NZLR 506 (CA), a judgment given on 20 December 2004. In that case, this Court considered the correct approach to the imposition of a minimum sentence under s 104.
d. In determining the correct approach to a s 104 sentencing, this Court referred to its earlier decision in R v Howse [2003] 3 NZLR 767 and to other sentencing decisions, particularly R v Ying (2004) 20 CRNZ 1078 (HC).
e. McGrath J, delivering the judgment of the Court in Williams, suggested a two-step process. At [52]-[54] McGrath J, delivering the judgment of the Court, said:
[52] An alternative way of proceeding, which often will be more straightforward, would be for the sentencing Court in s 104 cases to approach the justified minimum period of imprisonment in two steps. First, the Court would consider the degree of culpability of the instant case in relation to that involved in the standard range of murders – that is, apply the Howse approach. In the course of doing so, the Court would take into account in the normal way the pertinent aggravating factors set out in s 104 to the extent they were present, any other applicable aggravating factors, and all those in mitigation. As well, the sentencing Judge would have regard to the policy of s 104 that, in general, the presence of one or more s 104 factors establishes that the murder is sufficiently serious as to justify a minimum term of imprisonment of not less than 17 years. This element is necessary to ensure that effect is given to the legislative policy underlying s 104, which requires Courts at times to impose higher minimum terms of imprisonment than they might have done had s 104 not been enacted.
[53] The sentencing Judge would then decide what minimum term of imprisonment was justified in all the circumstances of the case, including those of the offender. As with cases determined solely under s 103, over time comparisons with other relevant sentences for murder will assist in determination of the appropriate minimum term in s 104 cases.
[54] Where the first step indicates that the appropriate minimum period of imprisonment is 17 years or more, the minimum term must reflect that assessment. In cases where the first step points to a lesser minimum term being justified, the Court would go on to the second step and consider whether to impose a minimum term of 17 years’ imprisonment would be manifestly unjust. If it is, the minimum term must be reassessed to what the Court considers to be justified. The Court may not, however, approach sentencing in s 104 cases on the basis that the 17-year minimum can be reduced whenever the Court considers that is appropriate. There is no warrant to interpret the provision merely as a guide to judicial discretion. The question of whether the outcome of the assessment would make a 17-year minimum term manifestly unjust must also be approached in a principled way.
a. Both R v Howse and R v Ying were referred to Potter J when she sentenced Mr Cui. In fact, Potter J was the sentencing Judge in Ying.
b. In this case, because there is no dispute that the appropriate minimum period ought to have been at least 17 years, the inquiry, in terms of para [54] of Williams, is to determine the appropriate minimum term to be imposed.
c. After discussing Howse, Ying and other authorities to which she was referred, Potter J said:
[44] Taking into account all the mitigating and aggravating factors, including under the head of mitigating factors the remorse expressed on behalf of Mr Cui and the offer of amends to which I must give some but not substantial weight, and recognising that the aggravating factors in this case are slightly different from in Ying (though in my view the aggravating factors in this case, particularly that there were two murders and an attempted murder of which Mr Cui was convicted, largely balance the aggravating factors in Ying not present in this case), I impose on Mr Cui a sentence of life imprisonment for each of the murders of Bin Lin and Ge Li with a minimum term of imprisonment of 19 years.
a. Earlier in her sentencing notes, Potter J had referred to the offer of amends made on behalf of Mr Cui. With the assistance of his parents, Mr Cui offered to pay $18,800 by way of amends to the families of his victims. The sum of $5,000 was offered to Ms Lin’s family; $6,800 was offered to Mr Li’s family and $7,000 was offered to Mr Xin.
b. Inquiry was made of the families to determine whether they would accept the offer. They decided that they would not. Potter J characterised their response as “a rejection of “cheque book” justice”.
c. Section 10(1)(a) of the Sentence Act 2002 requires the Court to take into account any offer of amends when imposing sentence. Section 10(1)(a) and (2)(a) state:
10 Court must take into account offer, agreement, response, or measure to make amends
(1) In sentencing or otherwise dealing with an offender the court must take into account—
a.any offer of amends, whether financial or by means of the performance of any work or service, made by or on behalf of the offender to the victim:
…
(2) In deciding whether and to what extent any matter referred to in subsection (1) should be taken into account, the court must take into account—
(a) whether or not it was genuine and capable of fulfilment; and
….
a. The Judge accepted that the offer was genuine and capable of fulfilment. But, she took into account whether or not it had been accepted by the victim or a deceased’s family as “expiating or mitigating the wrong”. The Judge concluded that the offer could be accorded “little weight” as a mitigating factor justifying a reduction in sentence.
b. The Judge was, in our view, entitled to take that approach. She did take into account the offer of amends. She elected to give little weight to it. That type of assessment, being discretionary in nature, is one with which this Court is loathe to interfere. We see no basis to interfere.
c. The Judge was conscious of Mr Cui’s age. She was uniquely placed, having presided at both trials, to evaluate the similarities and differences between the crimes committed by Mr Ying and Mr Cui respectively.
d. After referring to observations made by a probation officer, Potter J concluded her sentencing remarks with the following comments:
[49] It is, I believe, deeply concerning that in both these cases young men have resorted to such extreme violence when faced with situations which not unusually confront young men and young women. There may be difficulties in adjustment to a different culture and environment which need to be recognised, and in respect of which young people in the situations in which these prisoners found themselves, may need particular help and support. While the appropriate support mechanisms may exist, there may be cultural or language difficulties which result in their not being accessed by those who most need them, when they are most needed. The totally anti-social and criminal behaviour of these young men impacts widely. It severely detrimentally affects not only their victims and their families, but also the young people who are their friends and colleagues at the educational institutions they attend and with whom they lodge. I became acutely aware during the course of these two trials of the extreme stress and anxiety involved for those who are affected on the periphery of such offending. It is therefore essential that appropriate support services not only are made available, but that vigorous efforts are taken to ensure as far as it is possible, that they are accessed in cases of need before it is too late.
a. The “least restrictive outcome”, for the purposes of s 8(g) of the Sentencing Act, fell to be considered against the minimum sentence of 17 years that the Judge was obliged to imposed under s 104. The question is whether her assessment that the minimum sentence ought to be two years longer than that is open to attack.
b. Mr Comeskey’s primary submission was that because the second murder qualified Mr Cui for sentencing under s 104 (s 104(d)) it was inappropriate to impose a longer term. Mr Horsley submitted that the minimum term imposed was unimpeachable, submitting that the Judge was entitled to increase the statutory minimum term because the offending against Mr Li and Mr Xin was carried out in an endeavour to escape detection and the additional crime of attempted murder was committed. It was pure luck, from Mr Cui’s perspective, that Mr Xin survived. Had he not, Mr Cui would have faced sentence on a triple homicide.
c. We have reviewed minimum terms imposed in cases involving double homicides.
d. In R v Samoa CA85/04 4 August 2004 a minimum sentence of 22 years was imposed upon Mr Samoa and a term of 23 years on a co-offender, Mr Johansson. Each was charged with two counts of murder and one of attempted murder as well as a number of aggravated robberies. Mr Samoa and Mr Johansson had embarked upon a spree of robberies in the South Auckland area, the final two of which resulted in the murder of two men.
e. In Ying, a minimum term of 20 years was imposed for double homicides despite the youth of the prisoner: he was aged 22 years.
f. Howse involved a double murder. Two young step daughters were killed while they were supposedly asleep by a single knife wound. A minimum sentence of 25 years imprisonment was imposed on appeal, reducing the minimum term from 28 years imposed by the sentencing Judge.
g. In R v Lundy (2002) 19 CRNZ 574 (CA) this Court upheld a minimum term of 20 years imprisonment on a double homicide. Mr Lundy murdered his wife and his daughter by hacking them to death, using a weapon akin to a tomahawk.
h. In cases involving youths, but only one charge of murder, the minimum term of 17 years has generally been imposed: eg R v Slade [2005] 2 NZLR 526 (CA), R v Faisauvale HC AK CRI 2004-404-15319 21 October 2005, R v Green CA461/04 2 June 2005 and R v Luff HC PMN S4/02 18 September 2002.
However, a minimum term of 19 years was upheld on appeal in R v Khan CA470/04 14 June 2005. That case involved a single murder by a 23 year old man during which he poured fuel over the victim and set her alight. The victim had recently ended a relationship with Mr Khan, a not dissimilar situation from this case and Ying. Also, in R v Paul CA496/05 1 August 2006, this Court upheld a minimum term of 17 years imposed on a 24 year old man who killed a baby.
j. We are satisfied from this review that, if anything, the Judge was lenient in imposing a minimum term of 19 years. There were several aggravating factors: the fact of a double murder; an additional conviction for attempted murder (which fortuitously did not result in a third death); the callousness with which the crimes were committed; and the fact that two of the three offences were committed in an endeavour to flee and avoid detection.
k. The appeal against sentence is, in our view, meritless.
Result
a. The appeal against conviction is dismissed.
b. The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington
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