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Court of Appeal of New ZealandLast Updated: 18 December 2011
IN THE COURT OF APPEAL OF NEW ZEALAND
CA64/04CA117/04THE QUEENv
STEVEN ROGER WILLIAMSADRIAN HARDING OLSONHearing: 5 July 2004
Bench: McGrath, Hammond and O'Regan JJ
Coram: N M Crutchley and
J L Moreland for Crown
V C Nisbett and D R La Hood for Respondent
Williams
E C Bulger
for Respondent Olson
Judgment: 20 December 2004
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JUDGMENT OF THE COURT
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REASONS
(Given by McGrath J)
Table of Contents
Introduction [1]
Background – Mr Williams’
appeal [2]
Mr Williams’ sentence [14]
Background
– Mr Olson’s appeal [21]
Mr Olson’s
sentence [26]
The statutory scheme of sentencing for
murder [30]
Submissions for
Solicitor-General [35]
Submissions for Mr
Williams [40]
Submissions for Mr Olson [43]
Approach to s
104 [45]
“Manifestly unjust” [55]
Effect of
guilty plea [69]
Application to Mr Williams’
sentence [75]
Application to Mr Olson’s sentence [85]
Introduction
[1] These two appeals by the Solicitor-General raise questions concerning the application of provisions of the Sentencing Act 2002 which relate to sentencing in the most serious cases of the crime of murder. In such cases the Sentencing Act requires that a 17 year minimum term of imprisonment be imposed on the offender unless the sentencing Judge decides that would be manifestly unjust. The present appeals by the Solicitor-General raise the question of whether a guilty plea is relevant to whether a 17 year minimum term is manifestly unjust, so that the plea may be the principal or even the sole basis for imposing a lesser minimum period of imprisonment than 17 years. That was the approach followed by each High Court Judge in sentencing the offenders concerned. The main issue we must address is whether they were correct to do so.
Background – Mr Williams’ appeal
[2] Early in 2002 Mr Williams commenced living with Ms Jeanna Cremen in Featherston and assumed the role of caregiver to her two children by an earlier relationship. One of those children was Coral Burrows.
[3] During July and August 2003 Mr Williams began regularly to use methamphetamine in its pure form. On the evening of 8 September he had smoked methamphetamine with four others, returning home at about 3am the following morning. At around 7am he helped his two stepchildren get ready for school. He drove them there in his partner’s white Lada station-wagon.
[4] When they arrived at the school at about 8.17am there was no-one in the school grounds. Coral’s brother got out of the car and went into the building. Coral did not. She told Mr Williams that she did not want to go to school that morning. He attempted to persuade her, but she would not leave the vehicle and became cheeky towards him. Mr Williams became incensed; he reached into the back of the car and repeatedly punched Coral. Later he told police that he had “lost the plot” and had flown into a rage such as he had never previously experienced. He had leaned over from the front into the back seat and punched Coral about the head and face, all the time holding her down with his left hand. No one witnessed this attack.
[5] When Mr Williams’ rage had abated Coral was unconscious on the floor in the back of the car, bleeding profusely from her mouth. Mr Williams panicked. Despite the severity of Coral’s injuries he decided he would not take her back to her mother nor get her medical attention. Instead he drove off to a nearby reserve looking for a place at which he could hide Coral. He could not do so because a farmer was tending stock in the vicinity and would have seen him. Eventually he drove across the East West access road on to Western Lake Road in the South Wairarapa and there he pulled into a lay-by. He removed clothing from the unconscious girl. She was left dressed in a small vest, a long sleeved tee shirt and socks. Heavy rain was falling at the time.
[6] Mr Williams carried Coral from the car some three to four meters into the bush, where he laid her face down on the ground. He later told the police that as he did so she emitted a small groan. Mr Williams then picked up a fallen branch, about two feet long, and struck Coral a hard blow to the back of her head. A subsequent pathological examination indicated that Coral was alive when the blow was struck. The force of the blow fractured her skull and killed her. Mr Williams concealed her body by covering it with fallen branches.
[7] He then left the scene and drove to the foot of the Rimutaka Hill Road where he hid Coral’s clothes in long grass. Later he threw her schoolbag into a creek. He tried to clean up the back seat of his car and the carpet in front of it using petrol. After that he returned home. He told his partner that he had spilled petrol in the car. Later he cut out a piece of the carpet from the rear footwells and burnt it.
[8] Early in the afternoon Mr Williams borrowed a brown Lada sedan from a friend. He drove back to where he had hidden Coral’s body and placed it in a synthetic sack which he put in the boot of the car. He then drove out to the remote southern coast, eventually throwing her body into the middle of a toi toi bush.
[9] Mr Williams then returned home where, to maintain the pretence of normality, he reminded his partner that she would have to pick up the children from the school bus. Her other child was there but not of course Coral. Ms Cremen drove straight to the school where she ascertained that Coral had not been at school all day. The police were then notified and a major search and rescue operation was commenced involving police and many volunteers including local residents, friends and family.
[10] Initially, Mr Williams told the police that he had dropped Coral off at school, and that although she was at first reluctant to leave the car, she had eventually gone into the school grounds. He said he had spent the day driving around the south Wairarapa looking for employment.
[11] When he was questioned by the police the following day, he altered his story saying that he had gone to look for magic mushrooms rather than seek employment. Following this he went to bed, where he began to suffer panic attacks as a result of which he was admitted to hospital under sedation. At the hospital he became agitated and attempted to thrust his head through a plate glass window. Later, after he was discharged, he tried to do the same thing, this time through the window of a police vehicle. Mr Williams was taken to the police station where he was charged with an unrelated offence and remanded in custody the next day by the District Court. Thereafter the intensive search for Coral continued. Eight days later he told prison staff he wished to speak to the police. He then admitted to police officers during a videotaped interview that he had killed Coral, although he remembered little of the detail. He was able to recount some of what had happened after his attack on her and he showed the police where he had hidden her body.
[12] A post mortem examination revealed that the girl’s jawbone had been broken in two places consistent with the side of her head being against a hard surface when a very powerful blow was delivered to the other side of her jaw. This injury would have caused the bleeding from her mouth. There was also a severe depressed fracture to the right side of her skull that appeared to have been caused by a powerful blow from a blunt instrument. Both sets of injuries would have on their own caused severe brain injury. In addition there had been bruising to Coral’s forehead and head and defensive bruises on her knuckles. The following Tuesday Mr Williams informed the police that he remembered in detail what had happened and he proceeded to outline the sequence of events as set out above. He also showed the police where he had disposed of Coral’s clothes and other belongings.
[13] Following a short delay while his counsel awaited the pathologist’s report, the appellant pleaded guilty to a charge of the murder of Coral Burrows.
Mr Williams’ sentence
[14] On 5 February 2004 Mr Williams was sentenced in the High Court by Wild J to life imprisonment with a minimum period of imprisonment of 15 years.
[15] It was common ground between counsel at the sentencing hearing that the Judge was required by law to impose a minimum period of imprisonment of at least 17 years as part of the sentence unless satisfied that it would be manifestly unjust to do so. That was because the deceased victim was particularly vulnerable, because of her age (Section 104(g) of the Sentencing Act 2002). The Crown did not seek a sentence with a greater minimum period of imprisonment, so the central issue was whether a lesser minimum period than 17 years should be imposed.
[16] The sentencing Judge was not prepared to accept a submission by the Crown that the fact that the victim was a defenceless little girl who was in Mr Williams’ care when she was murdered was an aggravating factor to be offset against mitigating factors in determining whether the minimum term of imprisonment was manifestly unjust. He took the view that this factor was already covered in bringing s 104 into application. To further take it into account as a factor offsetting mitigating features of the case would be to engage in double counting of an aggravating circumstance.
[17] The Judge did however accept that the murderous blow administered by Mr Williams in the bush was an aggravating factor in the offending. It was the blow which was the immediate cause of her death and it had been delivered to facilitate the disposal of her body.
[18] The earlier attack was the result of blind rage and had resulted from a combination of factors including a state of agitation arising from recent threats of violence to Mr Williams and his family that had been made a few days earlier and the fact that he had been using controlled drugs. The latter was not a mitigating factor, although it had contributed to his episode of rage. The Judge pointed out that while the threats might have contributed to his explosion of uncontrolled rage they did not diminish the culpability of the blow one hour later which had actually killed his victim.
[19] Nor was the Judge prepared to treat the appellant’s failure to seek help as an aggravating factor. He said that this was common in murder cases and therefore built into the 17 year minimum period required by s 104.
[20] The Judge did consider what he regarded as the genuine remorse of Mr Williams and his early plea of guilty to be mitigating factors. He noted the Crown submission that Mr Williams had pleaded guilty in the face of an extremely strong case against him but also adopted observations of the High Court in R v Smith HC DUN S03/1402 15 May 2003. The Judge there had expressed the view that to make no allowance for a guilty plea in a case where a 17 year non parole period was imposed “would lead to manifest injustice.” Wild J was of the view that there was also little likelihood of those in Mr Williams’ circumstances pleading guilty if no such allowance were made. For these reasons he decided that it would be manifestly unjust to impose a term of 17 years imprisonment in the circumstances if, on the normal application of sentencing principles, together with a reduction for the guilty plea, the 17 year minimum period was clearly inappropriate. He concluded in the instant case that the mitigating factors outweighed the aggravating factors and that it would be unjust to impose 17 years. For these reasons he imposed a minimum period of 15 years imprisonment.
Background – Mr Olson’s appeal
[21] Mr Olson pleaded guilty to the murder of Mr Weeks, who was a friend of his. For about two years prior to Mr Weeks’ death Mr Olson had been living at Mr Weeks’ property at Oxford rent free, in exchange for doing odd jobs to improve the property. During October 2003 Mr Weeks signed a contract to sell the property and he told Mr Olson that he would have to find new accommodation. The new owners were to take possession late in February 2004.
[22] It seems that the idea of killing Mr Weeks occurred to Mr Olson as soon as he was told he would have to leave the property because there is an entry in his diary for 28 October 2003 which reads:
Bad news. Too bad James, you’re dead.
[23] On the morning of 8 January 2004 Mr Olson had breakfast with Mr Weeks and his wife. Later that morning he was assisting Mr Weeks to pack up and move from his Oxford property in anticipation of the sale. After cleaning out an office attached to stables, they moved to a workshop area where they loaded articles on to a 4WD vehicle and a trailer for some 15 minutes. Both were in good humour and there was no prior warning of what was about to happen. Mr Olson then picked up the head of a metal pickaxe and struck Mr Weeks with it on the head. He fell to the floor and Mr Olson bent down over him, feeling his neck for a pulse. When he did not find one he picked up the pickaxe again and struck Mr Weeks repeatedly on the head with it. Mr Olson then picked up a metal crowbar and used it to crush the victim’s windpipe.
[24] The pathologist’s post mortem report indicated that there had been at least four forceful blows to the deceased’s head which had caused skull fractures and brain bruising. They were of a kind that would cause a serious threat to life. The additional injuries to the deceased’s throat, however, had caused a complete obstruction of his upper airway and extensive haemorrhage. These injuries were inevitably fatal and would have caused death even without the brain injury. Collectively the wounds and injuries indicated that there had been a prolonged and determined assault.
[25] Mr Olson then walked back to the house on the property where he had a shower, placing his clothing in plastic bags in the hallway. When the victim’s wife returned he told her what he had done and asked her to pack a bag of clothing for him for when the police came. Mr Olson then called the police and told them he had murdered Mr Weeks. He admitted to the police who arrested him that he knew that the blows he administered would kill the victim and that he had intended to do so. He had no explanation for his actions but said that he knew what he was doing was wrong. At an early stage he pleaded guilty to the murder of Mr Weeks.
Mr Olson’s sentence
[26] At the time of sentencing, Mr Olson was 62 years of age and a sickness beneficiary who had no previous convictions. A psychiatric report stated that he had been unable or unwilling to provide an explanation for his violent crime. He had denied that there were any altercations or stresses in his relationship with Mr Weeks. Mr Olson displayed little regard for the consequences of his actions and had been dismissive of the impact of his crime on the wife and family of the victim and the local community. He had appeared unperturbed and observed that as he had no money, was in failing health and without future prospects, a lengthy prison sentence was not distressing to him. The psychiatrist was unable to find any indication of psychiatric disturbance nor any evidence of depression or abnormal mood swings. In the course of a psychological assessment his behaviour was typically non-conformist, impulsive and unpredictable.
[27] It was common ground between counsel, and the sentencing judge, Justice Chisholm, agreed that s 104(e) and (g) applied to the offending because it involved a callous, cold blooded and premeditated act carried out with precision and because the deceased was particularly vulnerable to what had happened. The Judge acknowledged that he had to impose the 17 year minimum non parole period unless he was satisfied that it would be manifestly unjust to do so. He referred to this Court’s decision in R v Parrish CA295/03 12 December 2003 in relation to what constituted “manifest injustice” under s 105:
A determination of manifest injustice requires an assessment of an offender’s personal circumstances alongside the circumstances of the offending and in light of the sentencing purposes and principles. The sentencer must be able to reach a clear view of demonstrable injustice, because this is what the description “manifestly” requires. Therefore, once one or more of the prescribed circumstances in s 104 has been identified, it is only in exceptional circumstances that the starting point of 17 years can be departed from.
[28] Chisholm J commenced his assessment of whether it would be manifestly unjust to impose a 17 year minimum period of imprisonment by referring to five aggravating factors of the offending, the first being the brutal and callous nature of the killing. Secondly it involved the use of at least two weapons. Thirdly there was a breach of trust because the victim was a very close friend. Fourthly there was premeditation (revealed by the diary note that the Judge inferred was made when Mr Olson learned that the property was to be sold). Finally the impact on the victims was grave. The Judge then identified three mitigating factors being the guilty plea at the first available opportunity (although it was relevant that conviction was inevitable), the absence of previous convictions, and Mr Olson’s age. The Judge did not accept the submission that Mr Olson was remorseful, nor was he prepared to give weight to the fact that any minimum period of imprisonment might mean that Mr Olson could spend the rest of his life in prison.
[29] The Judge concluded that it was only the early guilty plea that was a factor that could lead to manifest injustice. He recognised that there was a legal issue concerning whether he could take that factor into account in determining the minimum period of imprisonment. He considered the views expressed in R v Smith and those of Wild J in relation to the sentencing of Mr Williams. Chisholm J then said:
This is not an easy issue to resolve. But in my view it would be extraordinary if very serious offending requiring a starting point well in excess of 17 years could accommodate a guilty plea whereas less serious offending like this, which triggers s104 but does not require a non parole period exceeding 17 years, could not. Rightly or wrongly I have reached the conclusion that a guilty plea is a factor that can legally be taken into account. For reasons given by Hansen J I think that it is a factor that should be taken into account in this case because failure to do so would give rise to manifest injustice.
He accordingly imposed a minimum non parole period of 15 years imprisonment when sentencing Mr Olson to life imprisonment.
The statutory scheme of sentencing for murder
[30] Under s 102 the general policy in sentencing a person who has been convicted of murder is that the offender must be sentenced to imprisonment for life, and required to serve a minimum period of imprisonment of ten years before becoming eligible for parole (ss 102(1) and 103(1)). The 2002 Act introduced an exception to the general requirement of life imprisonment on a conviction for murder. Where a sentence of life imprisonment would be “manifestly unjust”, given the circumstances of the offence and the offender, that sentence need not be imposed by the sentencing Judge. The provision conferred an element of sentencing discretion covering cases of murder at the lowest end of the range of culpability of that offending.
[31] Where life imprisonment is imposed, the Court may sentence the person to a non-parole period of more than 10 years. When the respondents were sentenced, s 103 of the Act permitted the Court to impose a greater minimum period if satisfied that the circumstances of the offence were sufficiently serious to warrant the imposition of a minimum term of imprisonment of more than the statutory ten year norm. The period was to be set having regard to the circumstances of the offence and the offender (s 103(3) and (4)). The circumstances of an offence leading to conviction for murder could be regarded as sufficiently serious to justify a greater minimum period of imprisonment than ten years if the court was satisfied that they took the offence out of the ordinary range of offending of that particular kind (s 103(5)).
[32] On 7 July 2004 the section was amended to permit the imposition of a minimum period exceeding 10 years when the court considered that necessary to satisfy certain purposes, including accountability, denunciation and deterrence (2004 No. 68, s12). Those changes, however, are not relevant to the present appeals.
[33] Finally, the 2002 Act introduced a new provision requiring the Court to make an order under s 103 for a minimum period of imprisonment of at least 17 years where specified aggravating circumstances were present, unless it would be manifestly unjust to do so (s 104). One of the circumstances is if the murder was committed with a high level of brutality, cruelty, depravity or callousness (s 104(e)). Another is if the deceased was particularly vulnerable because of his or her age, health, or any other factor (s 104(g)).
[34] Considered overall and broadly, Parliament has given the courts in the 2002 Act a discretion not to impose a sentence of life imprisonment where the offending is at the lowest end of the range of culpability for murder. In general, the broad sentencing discretion in the previous legislation to impose a minimum term of imprisonment greater than 10 years in cases of greater culpability is maintained in the 2002 Act, but where the offence was committed in certain specified circumstances, which Parliament has classified as the most serious of cases, sentencing discretion is restricted. There is a statutory requirement that there be a minimum period of imprisonment of at least 17 years. The requirement is mandatory, unless the Court is satisfied it would be “manifestly unjust” to sentence the offender to a minimum term of that length, so that there is only a limited discretion not to impose the 17 year minimum period.
Submissions for Solicitor-General
[35] The Solicitor-General contends that in the cases of both Mr Williams and Mr Olson the sentencing Judge was required by s 104 of the 2002 Act to impose a minimum period of imprisonment of 17 years. Senior counsel for the Solicitor-General, Ms Crutchley, also suggested that this Court might give some guidance on the correct approach to the application of s 104.
[36] The Crown’s central argument is that the 17 year minimum term will be manifestly unjust only in exceptional circumstances. Ms Crutchley submits that s 104 lays downs a general rule in sentencing for murders fitting within the prescribed circumstances. The rule is directed to the worst kinds of murder, in respect of which the legislative judgment is that the sentencing response must include, in addition to the life sentence, at least a 17 year minimum non parole period unless that would be manifestly unjust. These propositions self-evidently follow from the terms of the statute itself. Ms Crutchley then argues that their consequence is that a lesser sentence was intended to be available only in exceptional circumstances, which do not include those of the present cases. She supports that contention by reference to the legislative history and to this Court’s approach to what is “manifestly unjust” under s 102, in relation to murders at the lowest level of culpability. This Court has in that context characterised the “manifestly unjust” exception to the presumption of life imprisonment as a high threshold that would be reached in exceptional cases only: R v Rapira [2003] 3 NZLR 794, 828. She pointed out that in R v Parrish CA295/03 12 December 2003 this Court said that the meaning of “manifestly unjust” was the same in s 104, indicating that a lesser term than 17 years would be available only in exceptional cases.
[37] Ms Crutchley argued that the Court should approach s 104 as a provision requiring the adoption of a fixed minimum period of imprisonment in the circumstances which it covered, permitting factors such as an early guilty plea to be relevant only to the question of whether a longer minimum period than 17 years should be imposed. That consideration was not relevant to deciding whether a period of 17 years itself was manifestly unjust in any particular case. Ms Crutchley argued that this approach would not discourage early guilty pleas as the usual minimum period imposed in a defended murder covered by s 104 would be considerably longer than 17 years, providing accused in all cases with a proper incentive to admit offending for which they were responsible.
[38] Ms Crutchley further argued that the aggravating factors had not been fully addressed and that matters in mitigation had wrongly brought the minimum period of imprisonment imposed on Mr Williams down to 15 years. She emphasised the failure of Mr Williams to admit the offending until family and local community had spent over a week searching for Coral Burrows and his failure to get assistance for her after his initial attack. For these reasons the Solicitor-General sought a sentence which included a minimum period of 17 years imprisonment in substitution for that of 15 years.
[39] Turning to the appeal in respect of Mr Olson, Ms Crutchley argued that the guilty plea had been wrongly taken into account in circumstances where there was absolutely no question but that he was the offender. Other personal factors such as the appellant’s age could not properly be given any weight. There were no factors that justified a term of less than 17 years imprisonment.
Submissions for Mr Williams
[40] Senior counsel for Mr Williams, Mr Nisbett, said that the legislative history was ambiguous. No attempt had been made by the responsible Minister or others to explain the meaning of the phrase “manifestly unjust”. He submitted that observations that 17 years would “generally” be the minimum term for murders covered by s 104 did not assist the Court in ascertaining the scope of the qualifying term “manifestly unjust”.
[41] Mr Nisbett pointed out that, although in s 102 the legislature has used the same qualifying words as in s 104 it has approached their application in different ways in the two sections. While both sections require the Court to ascertain whether the outcome of the sentencing presumption is obviously unjust the context is different. Although it would be a rare case where the presumption of a life sentence for murder would be departed from on the application of the test, that need not be the case, he argued, in relation to a provision that imposes a substantial additional minimum period of imprisonment on to what is already a serious punishment for the crime. Mr Nisbett’s argument was that all mitigating factors in sentencing, including remorse and an early plea of guilty, were properly considered in reaching the decision on whether it was manifestly unjust to impose a minimum period of imprisonment of 17 years in the case of Mr Williams. He also emphasised the importance of Wild J’s concern that there be an incentive for early pleas of guilty to the most serious murders.
[42] Counsel argued, in the alternative, that the provision was ambiguous and that the approach taken by the sentencing Judge gained support from s 6 of the New Zealand Bill of Rights Act 1990 as being the interpretation that was most consistent with protected rights under that Act. The protected right that he invoked was the right to be free from arbitrary detention.
Submissions for Mr Olson
[43] Similar submissions were made by Ms Bulger for Mr Olson. She also argued that in what she said were the unusual circumstances of his case his guilty plea was of special value as a mitigating feature. He had acknowledged responsibility at the outset, telling the police that he believed the first blow had killed his victim. Although not suffering from a psychiatric condition, Ms Bulger argued that the offending was clearly linked to Mr Olson’s psychological problems. The circumstances had also made it a marginal case for the application of s 104(e) and (g) but having regard to previous decisions of the High Court she had been prepared to accept a 17 year period of imprisonment as a starting point and argue from there.
[44] Ms Bulger also argued that Mr Olson’s remorse was genuine and that Chisholm J had been wrong not to accept the presence of that mitigating factor.
Approach to s 104
[45] The appeal against sentence by the Solicitor-General in each case concerns whether the sentencing Judge’s approach departed from the requirements laid down in ss 103 and 104 of the 2002 Act. It is common ground that those principles applied, in the case of Mr Williams’ offending, because his victim was particularly vulnerable on account of her age and in the case of Mr Olson’s victim because of the additional factor of the high level of brutality, cruelty and callousness in the offending (ss 104(e) and (g)).
[46] In those circumstances each sentencing Judge was required by s 104(1) to impose a minimum term of imprisonment under s 103 that was in accordance with the requirements of s 104, which established that the respective offences were sufficiently serious to justify a minimum term of imprisonment of not less than 17 years, unless the Court were satisfied that to impose such a minimum term would be manifestly unjust. Subject to that direction the duration of the minimum term had to be the minimum period of imprisonment that the Court considered to be justified having regard to the circumstances of the case, including those of the offender (s 103(4)).
[47] These appeals do not require us to consider in detail the language expressing the qualifying circumstances in s 104. Its purpose however is to require a very substantial minimum term of imprisonment for the most serious murders, and the words expressing the qualifying circumstances must be construed in that light. That must be borne in mind especially when considering whether the crime was marked by a high level of brutality or if the victim was particularly vulnerable.
[48] The first question is how this Court should approach assessing culpability when determining the justified minimum term under s 104. It is convenient to start with this Court’s decision in R v Howse [2003] 3 NZLR 767 where this Court was required to decide the appeal against sentence on the basis that s 103 applied to the sentencing but without any modification from s 104. That was because, although the offending was of a kind covered by s 104, it had taken place before the 2002 Act came into force (even though Howse was to be sentenced thereafter). Howse had been sentenced by the High Court to life imprisonment with a 28 year minimum period of imprisonment for the murder of his two stepdaughters who had made allegations against him of sexual abuse.
[49] This Court decided in Howse that, when applied on its own terms, s 103 required that the Court compare the culpability of the offending in the case before it with the standard cases of murder that would attract the statutory norm of a minimum period of imprisonment of ten years. The sentencing Court then had to decide what additional minimum period above ten years was required to achieve the necessary additional punishment, denunciation and deterrence. As well, the Court should look at sentencing decisions in other cases to ensure there was reasonable consistency of outcomes.
[50] The need to apply s 104 in the sentencing of Mr Williams and Mr Olson required reconsideration of the datum point against which the culpability of their offending was to be assessed in order to decide the minimum term. Wild J decided to compare the culpability of Mr Williams' offending with cases within the range covered by s 104, that attracted the presumption of a 17 year minimum term. He recognised that in doing so he had to take care not to bring into consideration aggravating features which had already been taken into account in bringing the offending within s 104.
[51] On that approach, the problem of how to avoid double counting, without compromising the statutory purpose, emerges. The difficulties of comparison faced in Howse when comparing instant offending with the range of murders that exhibit no aggravating features are compounded. This is because not only do the relative culpability of the s 104 factors vary hugely, both inherently and in any particular case, but the mere presence of a s 104 factor will not automatically give rise to a 17 year minimum term in every case. In some such cases to impose a 17 year minimum term would make the sentence manifestly unjust. These difficulties in comparing actual offending with that specified in s 104 were acknowledged by Wild J and have also been recognised in other High Court sentencing decisions such as R v Ying HC HAM T.032171 7 April 2004 Potter J.
[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.
“Manifestly unjust”
[55] This brings us to the meaning of “manifestly unjust”. We start with the meaning given in the context of s 102 of the 2002 Act. In R v Rapira [2003] 3 NZLR 794, in a judgment delivered by the Chief Justice, this Court said at [121]:
The test is that the sentence of life imprisonment is manifestly unjust. 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 ss 7, 8 and 9. It is a conclusion likely to be reached in exceptional cases only, as the legislative history of s 102 suggests was the expectation. Thus, on introduction of the Sentencing and Parole Reform Bill, the Minister of Justice (at 594 New Zealand Parliamentary Debates, p 10910) referred to its retention of “a strong presumption in favour of life imprisonment for murder”:
However, in a small number of cases, such as those involving mercy killing, or where there is evidence of prolonged and severe abuse, a mandatory life sentence is not appropriate. Under this legislation, the court will be able to consider a lesser sentence.
[56] The Court’s observations in Rapira concerning the need for the injustice to be clear and its indication that the meaning of “manifestly unjust” was to be ascertained by reference to the sentencing purposes and principles set out in ss 7, 8 and 9 of the Act has equal application in the context of s 104.
[57] It does not follow, however, that the meaning conveyed by the term in the context of s104 is the same in all other respects (cf R v Offen [2001] 2 All ER 154). In particular, the comment that the threshold was likely to be reached in very exceptional circumstances only, such as mercy killings, reflects the particular context and history of s102. In s 102, “manifestly unjust” is the criterion for displacement of the presumption that on conviction for murder an offender should be sentenced to life imprisonment. That presumption is a long-standing and strong one, reflecting the sanctity accorded to human life in our society and its associated abhorrence of the crime of murder. This context indicates that it will rarely be clearly unjust to impose life imprisonment for the purposes of the residual discretion conferred by s 102. This Court’s judgment in Rapira observed that the criterion was likely to be satisfied only in a small number of cases which would usually involve special features, giving as examples mercy killings and cases of prolonged and severe abuse of the offender by the victim.
[58] In the context of s 104 the statutory presumption which the “manifestly unjust” test displaces is that there should be a higher level of punishment, through the mechanism of a longer minimum term of imprisonment, if specified aggravating circumstances were present in a particular murder. The purpose of the legislature here was to create a benchmark in those circumstances for the minimum period of imprisonment to be imposed as part of a sentence of life imprisonment, in a way which did not create a mandatory sentencing regime.
[59] The legislative history indicates that the manifestly unjust criterion was not to be confined to exceptional cases. The Bill as introduced provided a starting point for the exercise of discretion by the sentencing Judge, stating that the Judge “may consider imposing a minimum period of imprisonment of at least 17 years” if certain circumstances were met. As the Judge could also impose a minimum period if those circumstances were not present, it seems clear that the provisions at that stage were intended only as a guide to judicial discretion. This is reflected in the explanatory note.
[60] The Justice and Law Reform Committee reported to the House on 12 February 2002 recording that the clause had been changed in response to submissions seeking mandatory sentencing. The report said:
Some submitters argue clause 93 should provide that the court “must impose” a minimum period of imprisonment of at least 17 years for the worst murders. While we do not agree with this, we do recommend that clause 93 is reworded so that the court “must” impose a minimum period of imprisonment of at least 17 years upon the worst murderers unless it is satisfied that it would be manifestly unjust to do so. ([2002] AJHR I 22C 567, 574).
The Report further noted, in relation to the qualifying circumstances in the clause, that sentencing for murder remained subject to ss 7, 8 and 9 of the Sentencing Act, which provided the principles and purposes underlying sentencing.
[61] The clause was not altered substantively during the remainder of its passage through the House. As Ms Crutchley pointed out, it is described in the Third Reading debates as requiring that 17 years “generally” be imposed for murders meeting the qualifying conditions ((1 May 2002) 600 NZPD 15908). That use of the word “generally” can have little significance, however, in resolving the particular issue in this appeal.
[62] A scheme can be discerned from the changes to the Bill in its passage through the legislature. Parliament decided that it was not sufficient in relation to sentencing practices for it simply to lay down indications of what would be an appropriate minimum term where the specified aggravating circumstances were present. It did not impose a mandatory regime. The legislation retained a limited judicial discretion to depart from the statutory minimum term that it had signalled would in general be justified, the discretion being applicable only in cases which met the criterion of manifest injustice. In the end, subject to s 104, the Court is required to determine under s 103(4) the minimum term of imprisonment that it considers justified having regard to the circumstances of the offence and those of the offender.
[63] The legislature’s purpose was accordingly to create a regime which confined the discretion of the Judges instead of simply providing them with a guideline. In doing so, Parliament adopted the term “manifestly unjust”, which indicates a requirement that the injustice be clearly demonstrated before the Court can exercise its sentencing discretion to impose a sentence below 17 years. There is, however, nothing in the legislative history which indicates that it was part of the legislative purpose that the test would be satisfied only in rare cases with “exceptional circumstances”. Within the confines of the limited discretion, each case must be considered on its merits.
[64] Defining the scope of the confined discretion raises a tension between competing principles. On the one hand Parliament expects the courts to respect the principle that qualifying murders should generally attract minimum terms of at least 17 years. On the other an element of sentencing discretion is retained to ensure that the section does not cause manifest injustice. Applying the general rule rigidly would create anomalies because different levels of offending may attract the same minimum period of imprisonment (17 years) in some situations. Ultimately, the court must do its best to make the legislation work, having regard to the ordinary meaning of the words used and the identified legislative purpose.
[65] The basic principle underlying successive sentencing regimes has been the exercise of judicial discretion to determine an appropriate sentence having regard to the principles now largely codified in ss 7, 8 and 9 of the Sentencing Act. That reflects the important principle that the punishment should fit the crime, which is fundamental to the administration of justice. There is no indication that Parliament intended a more radical restriction on the sentencing discretion of Judges that excluded consideration of those important principles.
[66] However, the specified minimum period may not be departed from lightly, as the Court is bound to give effect to the legislative policy of ensuring a 17 year minimum for the most serious murder cases. The reasons must withstand scrutiny. Marginal differences in personal circumstances or degrees of participation by co-offenders would not normally qualify. In Parrish at [21] this Court indicated that the presence of mitigating factors under s 9(2) which related to the personal circumstances of an offender would rarely displace the presumption. Powerful mitigating circumstances bearing on the offence are more likely to do so.
[67] We conclude that a minimum term of 17 years will be manifestly unjust where the Judge decides as a matter of overall impression that the case falls outside the scope of the legislative policy that murders with specified features are sufficiently serious to justify at least that term. That conclusion can be reached only if the circumstances of the offence and the offender are such that the case does not fall within the band of culpability of a qualifying murder. In that sense they will be exceptional but such cases need not be rare. As well, the conclusion may be reached only on the basis of clearly demonstrable factors that withstand objective scrutiny. Judges must guard against allowing discounts based on favourable subjective views of the case. The sentencing discretion of Judges is limited in that respect.
[68] Beyond that, what level of disparity amounts to manifest injustice remains a matter of sound sentencing judgement that is not capable of precise determination. It may be helpful, however, to indicate that when the qualifying factor has only peripheral significance in the case the statutory minimum term may be manifestly unjust. Otherwise, where the culpability attaching to the offence is relatively low having regard to the range of cases caught by s 104, the circumstances of the offender may make the sentence manifestly unjust.
Effect of guilty plea
[69] In both Mr Williams’ and Mr Olson’s appeals the question arises as to whether the appellants’ early guilty pleas, (a mitigating factor under s 9(2)), were properly treated as significant in making a 17 year minimum term manifestly unjust.
[70] The basis for treating a guilty plea as a mitigating factor lies in the public interest: R v Taylor [1968] NZLR 981. The purpose is mainly to spare family and friends of victims of offending the stress of trial, and to save the State the cost it involves: R v Rose [1990] 2 NZLR 552; R v Fahey CA184/00 2 November 2000. Beyond that, its principal relevance is as an indication of the presence of the mitigating factor of remorse. The basis of the reduction therefore lies primarily in public policy rather than in doing justice to an offender.
[71] There is, however, no suggestion in s 104 that Parliament contemplated that the sentencing court would approach the question of whether in the circumstances it would be manifestly unjust to impose the 17 year minimum term having regard only to some of the purposes and principles of sentencing that it set out in ss 7 to 9 of the Act. Had Parliament desired that certain of those factors never be taken into account in sentencing under s 104 it would almost certainly have said so. Equally it is clear under s 103(4), with which s 104 must be read, that the assessment is to be related both to the circumstances of the offence and those of the offender. We have indicated that mitigating factors directly bearing on the offence will often carry greater weight than those relating to the offender, but each is capable of influencing the outcome of the inquiry into whether a minimum term of 17 years imprisonment would be manifestly unjust.
[72] The circumstances, however, must be considered as a whole. A guilty plea will not always be entitled to significant weight in this assessment. How much weight is to be given to that factor must depend on the circumstances in which the plea was made, bearing in mind that a plea always avoids a murder trial and will give closure sooner to the victim’s family. We also point out that it would be manifestly unjust if two persons with equal culpability sentenced for the same offending, received an identical minimum term of imprisonment despite one only of them having pleaded guilty.
[73] The discount required for a guilty plea may, however, often be less than in an ordinary case where the statute establishes no presumption that the sentence will be at a particular level. The reason is that departures from the 17 year minimum are only to occur in cases of clear injustice. While the Act requires that a plea of guilty be taken into account, as a mitigating factor, s 104 requires something more than the fact that a particular discount would have been given but for the section to establish a clear injustice. It follows that if a minimum term of 17 years would include a real element of discount for a guilty plea, it would normally be appropriate to impose that term.
[74] These conclusions as to the requirements of s 104 of the Act are reached in accordance with the statutory text read in light of the context in which it appears in the Sentencing Act and the purposes of that statute as specified in the Act. We note that we do not believe that a different approach is required by the New Zealand Bill of Rights Act 1990. The section does not raise concerns about arbitrary detention or any other protected right.
Application to Mr Williams’ sentence
[75] We will apply the two stage approach to both appeals. We start with the statutory presumption that on conviction for murder the starting point is that the sentence of life imprisonment will be accompanied by a 10 year minimum period of imprisonment before eligibility arises for parole. In applying s 104 we start by considering and balancing the aggravating and mitigating features in comparison with the standard 10 year period. Turning first to Mr Williams’ case the most serious aggravating feature was the vulnerability of his stepdaughter, aged 6 years, for whose care he was responsible and who was defenceless in the face of his murderous assaults. As well, there is the blow that he struck with a fallen branch, which was the immediate cause of Coral’s death, and which we accept was administered to facilitate the disposal of her body. As Wild J emphasised, by this time his rage had gone. At the time Coral Burrows was gravely injured and Mr Williams had decided against seeking medical assistance for her, instead deciding callously that he would finish her off. A third aggravating factor was his return to the scene to dispose of the body in a more remote place, which we infer was in order to avoid detection.
[76] Section 104 confirms the seriousness of the circumstances in this case concerning the vulnerability of Coral Burrows and the brutality of the attack upon her. Having regard to the legislative policy that murders having such features must in general be met with a minimum term of at least 17 years, we are satisfied that in this very serious case a substantially higher sentence than 17 years, perhaps even 20 years, might have been justified but for the mitigating factors.
[77] At this point in our approach, it would normally be necessary to undertake a comparative exercise as a check on the assessment of culpability compared with the standard case attracting a 10 year minimum period. In the absence of sentencing decisions applying our suggested approach we find only limited assistance in comparisons of this kind. We note that this case is of a similar order to Howse, which involved the murder of step-children, although of course there were two victims in that case. There a minimum term of 25 years was imposed on appeal in a case that went to trial. It is likely that a similar term would have been imposed had s 104 applied at that time. The vulnerability of the victim and breach of trust, along with the attempts to dispose of the body, make this case more serious than other cases decided under s 104 including that of Parrish where this Court indicated that 17 years was within the permissible range, after a trial, where the accused shot his wife following a period of stalking. The more serious features in this case would be reflected by adopting a starting point of 20 years prior to considering mitigating features.
[78] Turning to factors of mitigation, the Court does not take into account the state of agitation of the appellant on the morning of the offending to the extent that it was generated by his consumption of controlled drugs and in particular methamphetamine (see s 9(3)). There were however other circumstances contributing to his state which were outside of his control, including recent threats to his life and his family’s well-being. These can be given some weight in mitigation although not falling directly within s 9(2)(e).
[79] Section 9(2)(g) provides for remorse to be a mitigating factor and we accept the Judge’s finding that Mr Williams was profoundly remorseful. It is consistent with the psychiatric report before the Judge and the indications of others that he had never previously been violent towards members of his family. Remorse however is not a factor which can carry great weight in serious murder cases given the importance of deterrence and denunciation in sentencing for this level of offending.
[80] That leaves the plea of guilty. The appellant did not admit to having killed Coral until over a week had been spent on a major search for her involving many in the local community as well as family and the police. The Judge concluded that this was due to his mental state, referring to Mr Williams’ breakdown, his admission to Masterton Hospital under sedation, and his suicidal tendencies. We accept the Judge’s conclusions as to the reasons for the delay and like him, will treat the acknowledgement of offending by Mr Williams as prompt. Likewise, although there was a short delay while counsel awaited the pathologist’s report, we accept Mr Nisbett’s submission that Mr Williams entered an early guilty plea, in effect at the first opportunity.
[81] As Wild J pointed out, the acknowledgement of offending was in the face of a very strong Crown case. That lessens the mitigating impact of the plea. Nevertheless, it did have a beneficial aspect, as it brought an end to the search for Coral’s body and the widespread community and family concern over the uncertainty of what had happened to her. It avoided the need for family members to give evidence and saved the state the expense of a full depositions hearing and trial. These factors justify a reduction in the minimum term at least to 17 years and raise the question of whether it would be manifestly unjust not to go further. Having regard to the serious nature of the offending as reinforced by s 104 and the significant discount that would be reflected in a 17 year minimum term, we conclude that it would not be.
[82] We have taken a different view to that of Wild J concerning the seriousness of the aggravating factors in Mr Williams’ case. As we see it this arises from the Judge’s efforts to ensure there was no double counting in his approach, in relation to the vulnerability of the victim, a difficulty we believe is minimised with our own approach. It follows that the sentencing Judge’s approach was wrong in principle and that, this being a Solicitor-General appeal, we must substitute the minimum possible sentence that is in accordance with the approach we have outlined.
[83] We conclude as a matter of overall impression that the degree of Mr Williams’ culpability, in relation to the range of murders that would be covered by a sentence of life imprisonment to which the norm of a 10 years minimum period applies, is such that a minimum term of at least 17 years imprisonment was required to denounce the seriousness of his offending.
[84] Having reached this conclusion in the first step of our approach, in which we have taken into account all factors in mitigation concerning the offending and the offender, no question arises of the manifest injustice of imposing a minimum term of imprisonment of 17 years or more. The decision of Wild J to the contrary was wrong and we must impose the minimum term of imprisonment that we consider is justified having regard to the circumstances of the case including those of the offender.
[85] For these reasons we quash the minimum term of 15 years imprisonment imposed on Mr Williams and substitute one of 17 years.
Application to Mr Olson’s sentence
[86] In Mr Olson’s case there were five significant aggravating factors. Firstly his offending had involved repeated blows to his victim’s head. The evidence of the pathologist was that there had been at least four forceful blows. Subsequently he had crushed the victim’s windpipe with a metal crowbar. The Judge was satisfied that there had been a prolonged assault on the deceased with a blunt weapon or weapons.
[87] Secondly, the deceased was in a vulnerable position. He was a friend of Mr Olson who had allowed him rent-free accommodation in return for helping out around the deceased’s property. He had appeared to be happily working with the victim, assisting him remove his possessions from the property when the totally unexpected attack took place. The victim was not able to defend himself against the sudden onslaught. The Judge saw this as involving a breach of trust. It also gave rise to the second circumstance warranting application of s 104 which was the vulnerability of the victim.
[88] Other aggravating factors were the use of at least two weapons and the premeditation involved in the attack. That was it seems disputed by Mr Olson, but the Judge was entitled to take account of the diary note which was apparently made the previous October. The fifth factor was the impact on the victims.
[89] The Judge considered that a high level of brutality and callousness was involved in the offending bringing the case within s 104(e). We agree, albeit considering that the brutality and callousness shown was at the lower end of the band of culpability created by s 104(2). We doubt, however, that s 104(g) applies. Something more is required to make a victim “particularly vulnerable” in terms of s 104(g) than an unexpected attack by a person whom the victim trusted, in circumstances where the victim could not defend himself. We do however accept that the suddenness of the attack and the breach of trust involved were serious features of Mr Olson’s offending, as were the use of weapons and element of premeditation.
[90] While there were significant aggravating features in the case, on our approach they were not such as to require a term of much more than 17 years before considering mitigating factors. The case falls within s 104 by a narrow margin and the other aggravating factors were not so significant as markedly to increase Olson’s culpability.
[91] The principal mitigating factor was the early guilty plea, which followed immediate acknowledgement of the offending and full co-operation with the police. As in Mr Williams’ case its impact was lessened because of the inevitability of conviction. What the Judge found to be an absence of remorse further limits the effect of the plea. Even so, the plea remained such as to entitle the appellant to a significant discount from a starting point of around 17 years.
[92] As well, the impact of a very lengthy minimum term of imprisonment on a person who was 62 years old at sentencing is relevant. This Court said in Parrish at [22]:
[Old] age, while a factor properly to be taken into account, will not of itself displace the mandatory minimum term in s104, where the offending is grave.
Advanced years may confirm the inappropriateness or manifest injustice of a 17 year minimum term of imprisonment in combination with other factors. It is relevant in both contexts here.
[93] These factors in combination mean that the appropriate minimum term element of the sentence, but for s 104, would have been significantly less than 17 years and we consider the Judge’s conclusion it should be 15 years was sound. It follows that we must consider whether it would be manifestly unjust for him to serve a minimum period of 17 years. We conclude that it would be. Even having regard to the policy of s 104, the lesser culpability of the appellant coupled with his age and guilty plea clearly bring the sentence below 17 years and as a matter of overall impression it would be manifestly unjust to sentence Mr Olson to a minimum term of more than 15 years imprisonment. The sentence imposed by Chisholm J was justified in all the circumstances.
[94] Accordingly we dismiss the Solicitor-General’s appeal against Mr Olson’s sentence.
Solicitors:
Crown Law Office, Wellington
Sladden Cochrane,
Wellington, for Appellant Williams
Layburn Hodgins, Christchurch, for
Appellant Olson
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