R v Mayes CA26/03 [2003] NZCA 383 (16 October 2003)

Last Updated: 11 January 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

CA26/03

THE QUEEN

v

DANNY BRIAN MAYES

Hearing: 23 July 2003

Coram: Keith J Anderson J Glazebrook J

Appearances: A Markham for Crown
A J S Snell for Respondent Judgment: 16 October 2003

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

Nature of the appeal

[1] The Solicitor-General seeks leave to appeal against a determinate sentence imposed for murder. The application for leave was filed one day late but, in the circumstances, leave to prosecute a meritorious appeal would not be declined on that ground.

[2] Mr Mayes was arraigned before a High Court Judge and jury on Tuesday 26 November 2002 for the murder of a young woman, Karnia Eva Carswell, whom

R V DANNY BRIAN MAYES CA CA26/03 [16 October 2003]

he had fatally stabbed at his residence on 22 May of that year. On the second day of the trial he indicated that he wished to change his plea, was rearraigned and pleaded guilty. The proceedings were then translated into a hearing of evidence for sentencing purposes. On 19 December the Judge determined, pursuant to s102 of the Sentencing Act 2002, that a sentence of life imprisonment would be manifestly unjust and imposed a determinate sentence of 12 years with a minimum term of imprisonment of eight years. The Judge was influenced towards the leniency of a determinate sentence by Mr Mayes’ mental instability resulting in head injuries suffered in a road accident in January 1989.

[3] Section 102 provides as follows:

102 Presumption in favour of life imprisonment for murder

(1) An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.

(2) If a court does not impose a sentence of imprisonment for life on an offender convicted of murder, it must give written reasons for not doing so.

Circumstances of the offence

[4] We think it expedient to set out the Judge’s succinct analysis of the relevant facts which he was able to assess from having presided over the trial:

[4] Mr Mayes is a 34 year old man. He was living by himself in Napier in a rented home. He has two children aged 10 and 7 from previous relationships, though he was not in a primary care-giving role for either of them.

[5] For several months Mr Mayes had been in a relationship with the deceased, Karnia Carswell. That relationship was somewhat “on again, off again”. It attracted its share of difficulties. There were allegations both ways. At times Mr Mayes was physically abusive towards Karnia; and for his part, Mr Mayes considered that Karnia (who had drug difficulties) forced herself on him and took advantage of him, and his drugs. There is scientific evidence to support the latter.

[6] From time to time Karnia would go over to Mr Mayes house in Napier from her mother’s house, where she normally resided. A good deal of drinking was indulged in.
[7] In the week prior to the killing, things became particularly difficult. Mr Mayes brother, Terry, had also been living in the house for a time. This of itself seems to have increased tensions somewhat.

[8] Karnia divulged to Mr Mayes that she was on a methadone programme when she had her first child. Mr Mayes commented, “oh you got a junkie baby”. There was then a fight between Karnia and Mr Mayes which escalated to a level that the police were called. Mr Mayes was arrested and charged with assault.

[9] A week later (on the morning of 22 May 2002) Mr Mayes appeared in the Napier District Court. He pleaded guilty to assaulting Karnia. His bail conditions included terms that he was not to associate with Karnia, and he was not to consume alcohol.

[10] When Mr Mayes went back to his home from this court appearance, Karnia was in fact outside his house. He told her of this court order. She was asked by him to leave. But then Karnia went inside Mr Mayes house and asked him for money. She was given some money by him, and initially used it for a taxi to go to her mother’s home. She returned later that evening to Mr Mayes house, having brought a bottle of bourbon with some of the money that Mr Mayes had given her. She had that bottle of bourbon with her.

[11] An altercation then developed between Mr Mayes and Karnia. It is difficult to know the precise details. It is highly likely that they were of a relatively petty character. But undoubtedly Karnia threw a mirror inside Mr Mayes house, and she became very aggressive. So much so, that a neighbour who lived across the road was summoned. He actually got Karnia “down” and held her by more or less lying on her on the porch, whilst the police were called.

[12] A police officer arrived. The situation was such that this officer found it necessary to handcuff Karnia to a post on the porch. He was on duty, on his own, and he needed to separate Mr Mayes and Karnia whilst he endeavoured to calm the situation down.

[13] When Mr Mayes and Karnia, in particular, had become somewhat calmer, both gave the police officer assurances that there would be no further problems. He accepted those assurances. He left, and Mr Mayes and Karnia returned inside the house.

[14] Subsequently another altercation occurred. Neighbours heard thumping noises. Karnia was hit (heavily) and there were other blows on her. Mr Mayes then made a frenzied attack on Karnia, using a fishing knife in his bedroom. Her forearms were slashed in places, and she had a serious (though probably not fatal) chest wound. She died of another deep penetrative knife wound to her heart. Death occurred within a very short period of time.

[15] Whilst Karnia was still in her death throes, Mr Mayes contacted emergency services. He claimed that he had gone to an outside toilet and had come back to find Karnia stabbing herself. That is now freely admitted to be incorrect. In his subsequent statement to the police, and a video interview, he claimed Karnia had been threatening him all night, and that in

particular she said she was going to “get the [a gang] onto him” and “get somebody to kill him”.

[16] He (now) accepts that he stabbed Karnia to death. As to why he did so, the following passage appears in his police interview:

Question: How did it happen? Answer: She said she was going to get the [gang] onto me for hitting her last week. Her parents don’t like me. Question: So what did you do? Answer: I went to the toilet. She was lying on the bed. I came back. The knife was by the bed, by the floor. She was mouthing off saying I was going to be killed. I said is that right. I was sitting on the right hand of the bed with the knife in my hand. I stabbed her in the chest and said I hope you die you little bitch. Question: How many times did you stab her? Answer: In the chest. Question: Why did you stab her in the chest? Answer: Because I wanted to kill her. Question: How long did you think about it before you decided to stab her? Answer: Probably a minute, she just kept mouthing. I didn’t say anything. I thought about being at Court today because of her and stabbed her. Question: How were you feeling when she was mouthing at you on the bed? Answer: I just wished she would shut up. Question: What were you thinking just before you stabbed her? Answer: Well, you’re going to get it good bitch now aren’t you. Question: What did you think as you stabbed her? Answer: Take it, take that.

Circumstances of the respondent

[5] Evidence of Mr Mayes’ mental disability was given by Mr Elliot Bell, who is a clinical psychologist, Dr Jeremy Skipworth, who is a specialist forensic psychiatrist, and by a sister of Mr Mayes. The evidence showed that early in 1989 Mr Mayes was thrown through the windshield of a car in which he was a front seat passenger. He was found unconscious and unresponsive to pain, having suffered a depressed skull fracture. For some time he was sustained by support systems in Hawkes Bay Memorial Hospital and after coming off those systems he presented as irritable and confused. Sometimes he would strike out at nursing staff and was disorientated and uncooperative. His treatment included anti-psychotic medications in order to cope with his aggression. He was transferred to a rehabilitation unit but continued to be aggressive and violent towards nursing staff. Certain cognitive disabilities were noted. Extreme behaviour and elevations of mood were treated by anti-psychotic medication twice a day. In March 1990 a consulting psychiatrist diagnosed “mania following severe head injuries”. Mr Mayes was admitted to Lake Alice Hospital under the Mental Health Act 1969. There his manic symptoms were
brought under control but his manner remained irritable, frustrated and argumentative.

[6] Mr Mayes’ mental difficulties were exacerbated by physical disability, including loss of smell and taste, ongoing pains and spasms in his back and leg, and headaches. He developed a paranoid suspicion and mistrust, remained and continues to remain irritable, volatile, impulsive and aggressive. His cognitive disabilities include attention and concentration problems, learning difficulties, verbal limitations and difficulties with noise or conflict. His syndromic condition is complicated by a long history of alcohol and cannabis abuse and his underlying problems are exacerbated when intoxicated to a much greater extent than someone without a brain injury. Mr Bell summarised Mr Mayes’ personality in these terms:

...currently marked by the presence of passive aggressive, aggressive anti- social, and paranoid traits at clinically significant levels. These are manifest in his irritability, verbal and physical aggression, impulsivity, disregard for the effects of his actions on others, and suspiciousness. These traits are consistent with the known impacts of traumatic brain injury on personality functioning, and for the most part, represent departure from what he was like before the motor vehicle accident.

The reasons for sentence

[7] The Judge found that the events of the evening of the murder were brought about by the victim who had goaded Mr Mayes badly. But in the period leading up to the fatal evening, Mr Mayes had abused the victim on several other occasions, indicating that the murder was not a sudden, explosive, one-off loss of control which came relatively unexpectedly. Moreover, on the evening in question, Mr Mayes had been physically abusive to the victim, assaulting her before he stabbed her. In the Judge’s words:

There was physical violence over a period of time working itself up to a final, almost disembodied act. And the language used by Mr Mayes to describe his actions in his statements to the police was quite callous and deliberative – Karnia had simply become an intolerable nuisance to him.

[8] The Judge found that notwithstanding Mr Mayes’ disabilities, his culpability was still very high. The Judge found, however, that Mr Mayes’ culpability was affected by his mental condition holding:

In his own way, he is every bit as battered (in moral terms) in his mind as a battered woman. ... Mr Mayes’ condition is squarely that of trauma with an originating organic cause. In my view it was linked to what happened on the fatal night and some real allowance has to be made for this factor.

[9] The Judge then considered the question of risk. The opinions of the experts were to the effect that Mr Mayes’ long-term, or static, state was not going to change and risk was ongoing, with the degree of risk dependent upon how far dynamic, that is alterable, risk factors could be managed. The Judge thought it unlikely, however, that Mr Mayes would ever again find himself in the extreme situation which occurred in this case.

[10] Turning to the sentencing options, the Judge observed that imprisonment for life generally attracts a ten year minimum non parole period with, following release, amenability to recall at any time. On the other hand, if there were a determinate sentence a minimum period of more than one-third would be appropriate. He concluded:

[68] I come at it this way. The level of culpability is somewhat reduced, not because Mr Mayes is not fully cognisant of what he does. He is. His problem is that his affective abilities – his ability to control himself – is distinctly reduced, and were especially so that night. In the vernacular, at that level Mr Mayes simply was not on that fatal night, and is not now, “the full quid”, as it used to be put. He represents a risk in these high stress situations. But it is difficult to see anything like it arising again.

[69] The actual assessment of a case like this is necessarily arbitrary to a real extent, and must be individuated.

[70] What is involved is an exercise in broad judgment (rather like the assessment of contribution in other areas of the law). And I rather think my fellow citizens would say simply and fairly, “Mr Mayes is due for something off; but not too much”.

[71] I consider it would be clearly unjust to impose life imprisonment. I take as a starting point 12 years imprisonment. The case is too serious by way of a community response, and in risk terms, for Mr Mayes to serve only four years in prison. I consider he should serve a minimum term of imprisonment of eight years.

[72] Mr Mayes, I therefore sentence you to 12 years imprisonment; with a minimum non-parole period of eight years imprisonment.

Crown arguments on appeal

[11] For the Crown, Ms Markham emphasised that the presumption in favour of life imprisonment is strong, as is illustrated by the high threshold of “manifest injustice” and the requirement to give written reasons for departing from the presumption. She submitted that the case for departing from the presumption must be obvious and beyond doubt and that s102 is intended as a legislative safety valve for those rare cases where there would be an objective and shared community sentiment that the imposition of life imprisonment would be plainly unjust. Further, a sentence of life imprisonment must seem manifestly unjust given the circumstances of both the offence and of the offender, a combination which may be contrasted with statutory references to the alternatives of the circumstances of the offence or of the offender stipulated, for example, in s99(2)(a) and 99(3)(a) of the Sentencing Act 2002 and in ss5 and 6 of the now repealed Criminal Justice Act 1985.

[12] In counsel’s submission it follows that there may be cases where there are strongly mitigating features in respect of an offender, but the circumstances of the offence still preclude departure from the presumption. Ms Markham further submitted that the offender’s risk of reoffending is one of the circumstances of the offender so that, even where there may be substantial mitigating features, the fact of ongoing risk to the public may prevent displacing of the presumption.

[13] The Crown raised the question whether there is a jurisdictional obstacle to the imposition of a minimum period of imprisonment in this case for the following reasons. The power to impose a minimum term of imprisonment in respect of a determinate sentence is given by s86 of the Sentencing Act. The murder was committed on 22 May 2002, prior to the commencement of the Act. Section 152 is a transitional provision in the following terms:

152 Section 86 not to apply to offender convicted of offence committed before commencement date except for serious violent offender

(1) Except as provided in subsection (2), nothing in section 86 applies to an offender who is sentenced on or after the commencement date for an offence committed before that date.
(2) If an offender is sentenced on or after the commencement date for an offence committed before that date that is a serious violent offence as defined in section 2 of the Criminal Justice Act 1985, section 86 applies.

[14] The Crown submitted that because s86 applies only to “serious violent offences” as defined in s2 of the Criminal Justice Act 1985, and murder is not specified as a serious violent offence, s86 cannot therefore be applied to a determinate sentence of imprisonment imposed for murder.

[15] Ms Markham submitted that the lack of a power to impose a minimum term of imprisonment in respect of a determinate term is another indication of a legislative intent that cases of murder, the circumstances of which are sufficiently serious to warrant contemplation of a minimum term, should attract a sentence of life imprisonment.

[16] Counsel submitted that circumstances which diminish responsibility should not, alone, automatically result in a sentence of less than life imprisonment. There is no legislative mandate for such an approach and diminished responsibility must be weighed against both the aggravating features of the case and any risk to the public.

[17] Ms Markham submitted that the present case does not meet the high threshold of s102 and the Judge erred in failing to accord sufficient weight to the aggravating features of the case and the ongoing risk posed by the respondent. The aggravating features included the fact that the respondent had been released on bail in respect of a serious assault on the victim only a matter of hours earlier; that he was in breach of two of the conditions of his bail, namely non-association with the victim and abstinence from alcohol. There was a background of physical abuse of the victim and the circumstances of the murder were brutal, reflecting a clear intention to kill. Further, Mr Mayes had previous convictions for violence, including assault with an instrument and two counts of assaulting a female. His callous description of the killing, set out earlier in this judgment, showed absence of remorse.

[18] Moreover, in the Crown’s submission, the Judge placed insufficient weight on the matter of public protection. The assumption that it was unlikely that the respondent “would ever again find himself in the extreme situation in which he
found himself” was questionable, not being based on any psychiatric or psychological evidence and in fact somewhat contrary to the tenor of the expert opinions and the respondent’s criminal history.

[19] Ms Markham submitted that the Judge placed too much weight on Mr Mayes’ head injury. In the Crown’s submission there was an incongruity in the Judge’s conclusion that life imprisonment would be manifestly unjust, but the circumstances of the offending were sufficiently serious to impose a minimum period of imprisonment.

Arguments for the respondent

[20] Mr Snell submitted that the Judge had carefully analysed the requirements of s102(1) and had made it clear that he was considering the circumstances of both the offence and the offender. He correctly determined that the burden of demonstrating why it would be manifestly unjust to impose life imprisonment was on the offender and that “manifestly unjust” meant “clearly or very obviously unjust”. Counsel submitted the Judge also appreciated that consideration must be given not only to the offender in terms of reduced culpability but also to the potential public danger in terms of risk of reoffending.

[21] Mr Snell submitted that the Parliamentary debates indicated that a more flexible regime was intended for murder, one which would take account of differing degrees of culpability on an assessment of the circumstances. In this case the Judge proceeded first to assess actual culpability, reviewing the full circumstances of the offence itself, including the aggravating and mitigating features. That was balanced against Mr Mayes’ personal circumstances, in particular his syndromic mental and physical disability.

[22] In relation to the question whether there is jurisdiction to impose a minimum term of imprisonment in respect of a determinate sentence for murder, Mr Snell submitted that s154 of the Sentencing Act prevails over s152. By virtue of s154(2) an offender, such as Mr Mayes, who had committed the offence before the
commencement date of the Sentencing Act but was sentenced after it, must be sentenced under the Act. In counsel’s submission that would include s86.

[23] Mr Snell further submitted that the Judge was clearly aware of all relevant aggravating circumstances, including the fact that Mr Mayes had been on bail and that a weapon had been used. There was, although not adverted to by the Judge, evidence before the Court to the effect that Mr Mayes’ medication may have been inappropriate for a head injury case. We remark at this point that that submission puts the matter somewhat higher than the evidence suggests. Dr Skipworth noted that Mr Mayes had two prescribed medications. One was a Benzodiazapen and the other a Duromine. In Dr Skipworth’s opinion, the prescription of both the Benzodiazapen and the Duromine in someone who has a head injury such as Mr Mayes, should be done with caution and with careful monitoring of the effects. He considered it might be that they were in part responsible for Mr Mayes’ difficulties in the months preceding the offending. There is some force, however, in Mr Snell’s submission that the respondent’s management rendered him more vulnerable than may have been necessary.

[24] Mr Snell emphasised the facts, for which there was an evidential basis, of provocative conduct on the part of Ms Carswell, by imposing herself on Mr Mayes despite his bail conditions and by making threats that she would have him killed. In counsel’s submission, Ms Carswell was a provocative aggressor and until the trial was stopped Mr Mayes was intending to defend the charge of murder on the basis of provocation under s196 of the Crimes Act.

[25] Counsel submitted that, in relation to the risk factors, the Judge placed significant weight on the protection of the public and although the static risk remained constant the dynamic risk factors could be significantly reduced.

[26] It was submitted on behalf of Mr Mayes that there was no incongruity in the Judge seeing a justification for both a departure from the presumption of life imprisonment and the imposition of a minimum period of imprisonment on the grounds of sufficient seriousness. The sentence ultimately imposed was a practical response to the manifest injustice of a life sentence and a recognition of the
inadequacy of a statutory non-parole period of one-third having regard to community expectations and the degree of risk. The result was a sentence which was neither manifestly inadequate, nor wrong in principle, in all the circumstances.

Discussion

[27] At the time we received the very helpful written and oral submissions of both counsel, this Court had not delivered a particular decision, then pending, in respect of the application of s102. That decision, delivered in relation to the appeals of a number of young people, is frequently referred to as R v Rawiri CA341/02, 5 September 2003. In that case the Court was concerned with the fact of the youthfulness of offenders as a possible indication for departure from the statutory presumption of life imprisonment. A number of young people, including Whatarangi Rawiri, who was then 17, and Alexander Peihopa, who was then 15, had carried out an aggravated robbery of a food delivery courier in order to steal his food and money. The victim, Mr Michael Choy, died as a result of a blow to the head inflicted by Alexander Peihopa. This Court held that the presumption expressed by s102 is a legislative identification of the public interest in maintaining life imprisonment as the standard response for murder unless such response is manifestly unjust; and:

That conclusion has to be made on the basis of the circumstances of the offence and the offender. It is an overall assessment. The injustice must be clear, as the use of “manifestly” requires. The assessment of manifest injustice falls to be undertaken against the register of sentencing purposes and principles identified in the Sentencing Act 2002 and in particular in the light of ss7, 8 and 9. It is a conclusion likely to be reached in exceptional cases only, as the legislative history of s102 suggests was the expectation.

[28] In that case this Court confirmed the sentencing Judge’s determination that it would not be manifestly unjust to impose the usual, presumptive sentence. Youth of itself could not be a sufficient reason to make life imprisonment manifestly unjust if the offender had the necessary intent or knowledge of consequences to be guilty of murder, in the absence of a statutory direction to that effect. In the particular case the offence was grave, involving actual intended violence with a weapon. The blow was inflicted as a known part of a plan and the prospect of serious injury and possible death was appreciated. The violence was part of a plan to rob and the blow
had been one of severe force. The level of premeditation was high, the victim having been selected for his vulnerability. Callous disregard was shown to the victim and no medical assistance was sought despite his evident injuries. This Court summarised the position in these terms:

Youth, suggestions of peer pressure, and (in the case of Whatarangi) real remorse could not outweigh the wider public interest in denunciation. In the circumstances there is no manifest injustice in imposition of the sentence of life imprisonment which is presumed for murder.

[29] Turning to the question whether a minimum term of imprisonment may be imposed with respect to a determinate sentence of imprisonment for murder, we are of the view that Ms Markham’s submissions are correct. Section 154 provides as follows:

154 Offender convicted of murder committed before commencement date

(1) This section applies if an offender is sentenced on or after the commencement date for the crime of murder committed before that date.

(2) Except as provided in subsection (3), the offender must be sentenced under this Act.

(3) Section 104 does not apply to the sentencing of an offender to whom this section applies.

[30] By virtue of s152, a minimum period of imprisonment in relation to a determinate sentence of imprisonment, as provided by s86 of the Sentencing Act, cannot be imposed for an offence committed before the commencement date of the Act except in respect of a “serious violent offence” and murder is not within the statutory definition of such.

[31] Given the statutory provisions for the imposition of a minimum period of imprisonment if life imprisonment is imposed for murder – ss103 and 104 – the omission of an analogous provision for cases where a determinate sentence of imprisonment is imposed for murder must be considered deliberate. That adds weight, as Ms Markham submitted, to the view that Parliament did not intend a departure from the presumption of life imprisonment if the circumstances of the offence were sufficiently serious otherwise to justify a minimum period of
imprisonment longer than the period applicable under s84(1) of the Parole Act 2002.



[32] This Court recently considered s102 in relation to a 15 year old girl with some intellectual impairment – R v O’Brien CA107/03, 16 October 2003. That case also involved a group attack by young people on a vulnerable victim as part of a premeditated plan of aggravated robbery. The offender struck the victim many times on the back of the head with a hammer and then, believing him to be dead, rolled his body down a river bank. The victim died either of the head injuries or of drowning whilst in a state of profound unconsciousness by reason of those injuries. This Court held that low intellectual capacity unrelated to the mental elements of criminal responsibility are seldom likely to justify a departure from the statutory presumption. That is particularly the case when the circumstances of the offence demonstrate premeditated brutality. This Court recognised, however, at paragraph [36] that:

There may be cases where the circumstances of a murder may not be so warranting denunciation and the mental or intellectual impairment of the offender may be so mitigating of moral culpability that, absent issues of future risk to public safety it would be manifestly unjust to impose a sentence of life imprisonment.

[33] In the present case the murder was brutal and Mr Mayes’ response to it was callous. Although there is room for a humane appreciation of the tragic consequences for Mr Mayes of his grave head injury, it must be borne in mind that he was also influenced in his conduct on the night in question by alcohol which he had taken in breach of a bail condition. Legislative policy in relation to the effect of the voluntary consumption or use of alcohol is indicated by s9(3) of the Sentencing Act. Nor do we share the Judge’s inclination to read down the degree of risk of a future violent reaction to stressors or perceived provocation. The degree of static risk will not change and the dynamic risk is not likely to be manageable to such an extent that amenability to life-time recall should be displaced.

[34] Having regard to all of these matters we think that this is not one of the rare cases where the statutory presumption is displaced. With all respect to the learned and experienced sentencing Judge, an appreciation that “Mr Mayes is due for
something off; but not too much” falls far short of establishing manifest injustice. The appeal must be allowed.

Result

[35] For the above reasons, leave is granted to the Solicitor-General to appeal against the sentence imposed on Mr Mayes. The appeal is allowed. The determinate sentence of 12 years imprisonment and the order for a minimum term of imprisonment are each quashed. In substitution, a sentence of imprisonment for life is imposed.

Solicitors:

Crown Law Office, Wellington