THE QUEEN v DARTELLE MAREMARE JAMES ALDER [2002] NZCA 147 (25 June 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca430/01

THE QUEEN

V

DARTELLE MAREMARE JAMES ALDER

Hearing:	18 June 2002
Coram:	Blanchard J Tipping J McGrath J
Appearances:	S P France and M F Laracy for Appellant D M Madsen for Respondent
Judgment:	25 June 2002

judgment of the court DELIVERED BY TIPPING J

[1] The Solicitor-General seeks leave to appeal against a minimum non parole period of 15 years.He submits that its length is manifestly inadequate and seeks an increased period based on a starting point of 20 years.

[2] The respondent, Mr Alder, aged 23 at the time, pleaded guilty to a charge of murder, three charges of sexual violation, and a charge of abduction with intent to have sexual intercourse.He went to trial on a charge of assault using a motor vehicle as a weapon and was found guilty of that offence by the jury.The minimum non parole period was imposed on the murder conviction but all the surrounding circumstances, evidenced by the other convictions, are relevant to its length.

[3] The deceased, Ms Baxter, was jogging along a country road near the Hawkes Bay Golf Club on a Sunday morning.She had been with her partner but he had run on and she was returning alone to where they were staying.Mr Alder deliberately ran her down with his car in order to assault her sexually.She suffered a serious dislocation to her hip and other injuries as a result of being struck by the car and thrown against the windscreen and then to the ground.Mr Alder forced her, in her injured state, into the back seat of his car.She was then, and throughout the events which followed, in very considerable pain but conscious.Mr Alder sought no help for her; to the contrary he drove her down the long drive of a nearby property where there was no-one at home.Over the next two hours or so, he raped and sodomised her and also forced his penis into her mouth.He then killed her by means of several heavy blows to the head with a seven kilogram drainage pipe.The injuries he thus inflicted would have killed Ms Baxter immediately.But nevertheless Mr Alder went to his car, got a knife, and proceeded to inflict at least 35 stab wounds to various parts of her body.

[4] When the police apprehended him the same evening, Ms Baxter's body was found in the boot of his car.Mr Alder admitted the killing but initially denied the sexual crimes; albeit the scientific evidence later conclusively proved them and he belatedly admitted them too.Pleas of guilty were not entered until the morning the trial was due to commence.The trial continued on the basis of a denial that the running down had been deliberate. Mr Alder's contention, rejected by the jury, was that it had been an accident and all that followed had resulted from panic.

[5] The sentencing Judge said he could discern no remorse or contrition from the guilty pleas but rather a dispassionate and somewhat cold and clinical recitation of only some of the relevant events but without genuine sorrow for others.Mr Alder's professed remorse was found by the Judge to have been inspired by fear of punishment.

[6] The Judge rightly described the mitigating factors as few.Mr Alder had no previous convictions, had been a good worker and a supportive son and had, albeit belatedly, pleaded guilty to all but one of the charges.He thereby spared Ms Baxter's family and friends the ordeal of having all the details of his offending traversed in open Court.But his denial that he had deliberately run Ms Baxter down required a trial of five days (as opposed to the two to three weeks estimated for the whole case) and involved at least some of the events having to be relived.

[7] The aggravating features of the case are self-evident and require no emphasis.Ms Baxter was enjoying a Sunday morning jog when her life was brutally and callously brought to an end.In great pain she had to endure sexual assaults of a persistent and shameful kind.The initial running down was for the premeditated purpose of sexual assault.The purpose of the ultimate killing was to silence the victim forever in an attempt to escape responsibility for conduct of the most heinous kind.The pre-sentence report suggested no relevant mental health problems and the two medical reports from different psychiatrists found no mental illness of consequence.

[8] In his submissions Mr France endorsed all that the sentencing Judge had said in what were careful and wholly appropriate sentencing remarks.The Crown's only complaint related to the ultimate outcome.Mr Madsen, doing his best for his client in difficult circumstances, emphasised the matters of mitigation earlier mentioned.The Judge took as his starting point a period of 17 years which he reduced to 15 years, primarily on account of the pleas of guilty.In so doing he applied the same discount as that adopted by this Court in R v Namana [2001] 2 NZLR 448 where an 18 year period was reduced to 16 years on account of an early plea of guilty.

[9] Mr France argued that in the present case the Judge's starting point had been too low and his discount too great.We find ourselves in agreement with both aspects of this submission.As the Judge himself said, comparisons between individual cases in this field are difficult and seldom of much help. We are bound to say that against the exceptionally grave combination of circumstances in the present case, we consider the period ultimately fixed by the Judge to have been manifestly inadequate.We do not consider it could realistically have been less than 17 years.We put the matter in that way to reflect s80(3) which provides that the duration of any minimum non parole period shall be the minimum period that the Court considers to be justified having regard to the circumstances of the case including those of the offender.

[10] The lowest tenable starting point, in our view, is one of 18 years and the most that can be allowed for the mitigating matters, primarily the pleas, is one year.The present case is materially different from Namana in this latter respect in that the pleas here came only just before the trial was due to start and the case went to trial on an aspect upon which the jury found against Mr Alder.

[11] For these reasons we grant the Solicitor-General leave to appeal, allow the appeal, quash the minimum non parole order made by the Judge, and substitute an order under s80 of the Criminal Justice Act 1985 that the minimum non parole period in respect of Mr Alder's life sentence be 17 years.

Solicitors

Crown Law Office, Wellington, for Appellant

Gifford Devine & Partners, Hastings, for Respondent