The Queen v Slade [2005] NZCA 19; [2005] 2 NZLR 526; (2005) 21 CRNZ 600 (28 February 2005)

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The Queen v Slade [2005] NZCA 19 (28 February 2005); [2005] 2 NZLR 526; (2005) 21 CRNZ 600

Last Updated: 20 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA245/04CA266/04THE QUEEN

v

HORI RITCHIE SLADEJAMES ANTHONY LESLIE HAMILTON

Hearing: 19 October 2004

Court: Anderson P, Hammond and William Young JJ

Counsel: L J Postlewaight for Appellant Slade
P J O'Driscoll for Appellant Hamilton
S P France for Crown

Judgment: 28 February 2005

JUDGMENT OF THE COURT

A The appeal against sentence by Mr Hamilton is dismissed.

2. The appeal against sentence by Mr Slade is allowed. The sentence of life imprisonment will remain in place. We set aside the stipulation of a minimum of 17 years non-parole period.
   

REASONS

(Given by Hammond J)

Introduction

[1] On a Friday evening in September 2002 three 16-year-old males were loitering about in Whangarei “with intent”, as it used to be said. That is, they were up to no good, in that they were going to rob people.
[2] There was a National Provincial Championship rugby game in Whangarei that evening. These three delinquents confronted some young people proceeding from their motel to the game. They assaulted one of them. That affray broke up, and the three youths went into Whangarei. They parted company for a while, but they then got together again and began to break into cars with a hammer (leaving it in one of the cars that they broke into).
[3] By 4.00 am on the Saturday morning these three young men were together once again, in a Whangarei suburb. The Crown case at trial was that they were still loitering with intent; these youths said that they were about to break up and go their own separate ways.
[4] Whatever the truth of that, they were still together as the deceased, Mr Richard Harcombe, another young man, happened to come along, by himself. He was very badly assaulted, and robbed. Subsequently, he died of the massive head injuries he had sustained in this attack.
[5] All three young men - Slade, Hamilton and Maihe - were charged with murder, and also with certain lesser offences with respect to the victim in the first incident and, in the second incident, Mr Richard Harcombe.
[6] A jury returned verdicts of murder against Mr Hamilton and Mr Slade, and manslaughter against Mr Maihe.
[7] We are not concerned here with the lesser offences, on which convictions were also returned, although for completeness we simply note that certain other convictions were entered.
[8] In the result, Mr Slade and Mr Hamilton were sentenced to life imprisonment with a minimum non-parole period of 17 years imprisonment; Mr Maihe was sentenced to nine years imprisonment.
[9] All three men have accepted their convictions. Mr Maihe has accepted his sentence. Mr Slade and Mr Hamilton accept that it was appropriate that they should be sentenced to life imprisonment, but they say that the 17-year minimum non-parole period should not have been imposed, and was “manifestly unjust”. They will be well advanced into their 30’s before they become eligible for parole, if the sentences stand.
[10] The appeal therefore raises the very difficult issue of the sentencing of young men - in their early teens - at the time they commit the most serious of crimes. The sentencing judge, Keane J, took the view that the terms of the relevant legislation left him no alternative but to adopt the course he did. It is convenient therefore to turn next to that legislation.

The legislation

[11] The issues relating to sentencing for murder first need to be placed in context. It will be recalled that a criminal justice referendum was held in connection with the 1999 General Election in New Zealand. This indicated a high level of public concern over sentencing for serious violent offenders and a wide-spread desire for the community to be better protected from dangerous offenders.
[12] The administration of the day rejected the possibility of a scheme of degrees of murder (which had been mooted from time to time in New Zealand). Instead, the administration advanced a “four-tier” sentencing structure for offenders convicted of murder.

• There was to be a very strong presumption in favour of life imprisonment for murder in the prospective legislation, although what was described by the Select Committee as “a very small number” of persons were to receive a sentence less than life imprisonment. These cases might include “mercy killings”, failed suicide pacts, and a situation in which the accused was termed a “battered defendant”.
• The second tier would comprise the majority of convicted murderers who were to receive life imprisonment with a minimum period of imprisonment of ten years.
• It was thought that “a number” would receive a life sentence with a longer minimum period of imprisonment than ten years, but less than 17 years, owing to the circumstances of the case. The circumstances of the case were to be regarded as sufficiently serious if the Court was satisfied that these took the offence out of the ordinary range of offending, but those circumstances did not need to be “exceptional”, as had been the law in New Zealand.
• Then it was said “a small number who were convicted of the worst murders” were to receive a life sentence with a minimum period of imprisonment of at least 17 years, owing to the aggravating factors of the case.

[13] As to this fourth and most serious category, it is apparent from the materials made available to us in this case, and also in Williams and Olson v R CA64/04 and CA117/04, 20 December 2004, that there was a good deal of debate in the Justice and Electoral Select Committee as to whether the law should provide that a court “must impose” a minimum period of imprisonment of at least 17 years for the worst murders. The Sentencing and Parole Reform Bill (a Government Bill), as reported from the Committee provided:

While we do not agree with this, we do recommend that cl 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” (at 8).

[14] That consideration was the genesis of s 104, as enacted by Parliament:

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

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

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

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

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

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

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

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

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

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

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

(i) in any other exceptional circumstances.

[15] We add, for completeness, that s 104(ea) was inserted by s 4 of the Sentencing Amendment Act 2003, with effect from 31 October 2003.
[16] The term “manifestly unjust” was not defined in the legislation.

Prior judicial consideration of s 104

[17] To date there have been three principal sources of difficulty under this section. First, whether, in appropriate circumstances, it is permissible to give judicial recognition to a plea of guilty in relation to a murder in this category. This Court answered that question in the affirmative in Williams and Olson v R (above [13]). Secondly, there is the problem of the “ratcheting” effect of the triggering paragraphs in s 104. For instance, under (c) the unlawful entry into a house might be of a minor character (though unlawful) and thereupon attract the full effect of the s 104 penalty. And thirdly - and this is the issue presently before this Court - there is the issue of whether a very long sentence of 17 years for peripheral participation in a group assault leading to a death may be manifestly unjust, when imposed upon a callow youth.
[18] As to “manifest injustice”, s 104 of the Sentencing Act 2002 was considered by a divisional court of this Court in R v Parrish CA295/03 12 December 2003 (Gault P, Goddard and Rodney Hansen JJ). That panel held, “The strong presumption, where the section applies, is that the minimum period to be served is to be not less than 17 years unless that would result in manifest injustice” (at [17]).
[19] In that case, in the High Court, Laurenson J had observed that the specified elements are not defined in terms of the degree of culpability involved. Each might involve a greater or lesser degree of culpability within the broad description. The judge had concluded, “The net result is that the Court, when having to assess which of the three alternatives is appropriate, must assess the degree of culpability involved in each, or, if you like, to determine just how unacceptable an unacceptable element is, in a particular case” (at [48]).
[20] The divisional court did not agree with that approach. It observed that the prescriptive character of s 104 had not been sufficiently recognised. The three alternatives were not equally available for selection according to assessed culpability. Further, it did not follow that only where the qualifying elements for the application of the section were the worst which the court had encountered could a minimum period above 17 years be imposed. The Court said:

“Section 104 is ... couched only in mandatory terms, with the result that if, on proven or accepted facts, one of the circumstances prescribed therein is present, the imposition of a minimum period of 17 years imprisonment or more is mandatory. The Court is then expressly directed to impose such a minimum period, pursuant to s 103, unless satisfied it would be manifestly unjust to do so (at [18]).

[21] In Parrish four of the prescribed circumstances in s 104 were present: calculated planning; unlawful entry into the victim’s home; a high level of brutality; and the vulnerability of the victim. To the extent that there were mitigating factors they lay in the appellant’s age of 67 years, that he suffered from prostate cancer, and his previous good character. However this Court held that these factors had no direct bearing on the appellant’s offending which was premeditated, vindictive and motivated by jealousy. Accordingly, in the Court’s view, there were no circumstances of the offending that could have justified a departure from the mandatory minimum term of 17 years. It said:

Even in cases with more powerful mitigating circumstances, the requirement to impose the mandatory term of imprisonment of 17 years might not be displaced if they have no direct bearing on the offence itself. In the absence of special features (such as those described on the introduction of the Sentencing and Parole Reform Bill [see supra]) indicating manifest injustice, the Court is unlikely to depart from the mandatory minimum term (at [21]).

[22] Personal circumstances of extreme youthfulness had been held not to meet a threshold for departing from the presumption in favour of life imprisonment in R v Rapiro [2003] 3 NZLR 794 and R v O’Brien (2003) 20 CRNZ 572. Nor, in a s 104 context, was this held to be a reason for departing from the 17 year minimum in R v Luff HC PMN S4/02 18 September 2002 Ronald Young J.
[23] In Parrish, and in Williams and Olson, it was held that while old age was a factor which could properly be taken into account, it did not of itself displace the mandatory minimum term of 17 years.

The facts of this case

[24] Against this background, it is necessary now to return in more detail to the incident which brought about the aspects of the sentences against Mr Slade and Mr Hamilton which are on appeal to this Court.
[25] Messrs Slade, Hamilton, Maihe were together at an intersection in Whangarei. Mr Harcombe passed by. He too may have been affected by alcohol.
[26] Mr Hamilton, who by all accounts was the ringleader throughout this incident, took the initiative. As Mr Maihe recalled, Mr Hamilton said, “shall we hit him, or shall we roll him and give him a hiding?”. In any event, Mr Hamilton accepted that he confronted Richard Harcombe and began to assault him. Mr Harcombe resisted, and reduced Mr Hamilton to his knees. It was at that point that Mr Slade and Mr Maihe stepped in to help their “mate”. They restrained Mr Harcombe so that he could no longer defend himself, but as the trial judge said, “[Hamilton] look[s] to have continued with [the assault] and with effect”. It appears that Mr Harcombe was put to ground and there was then a concern that he might be run over by a car. Messrs Hamilton, Slade and Maihe thereupon manhandled Mr Harcombe from the roadway down a driveway to Jubilee Park. Halfway down that driveway Richard Harcombe was subjected to what the judge described as a “sustained assault, principally to his head and with [subsequent] fatal effect ...”. He was robbed, and left in a state of unconsciousness.
[27] The sentencing judge, who was also the trial judge, took the view that Mr Harcombe had continued to struggle “right down the driveway”. The judge thought that explained why Mr Harcombe had been taken no farther into the park. In any event, both Messrs Slade and Maihe admitted pinning Mr Harcombe to the ground. It was at that point that Mr Hamilton began kicking Mr Harcombe in the head, with what were to be fatal consequences.
[28] It appears that at trial the jury accepted that Mr Maihe had distinctly less culpability. At an early stage he took Mr Harcombe’s wallet and his cell phone and went back to the road, calling on the others to follow. He waited a while but when they did not rejoin him, he went home. Mr Maihe’s case always was that nothing too serious happened while he was present although he recalls that Mr Harcombe was being kicked but was still struggling, when he left.
[29] Mr Slade undoubtedly remained with Mr Hamilton down the driveway and he was therefore present during what the judge described as “the most severe phase of violence”. Either Hamilton or Slade took Mr Harcombe’s shoes before they left, with both of them going in an opposite direction to Mr Maihe across Jubilee Park. The victim was left where he lay.
[30] There was a video record of Messrs Hamilton and Slade buying food at a nearby service station not long after. They then went to a residential address in Whangarei and admitted to a person there present that they had assaulted Mr Harcombe. Around 6.00 am in the morning they returned to Jubilee Park on push bikes with this third youth. Mr Hamilton said he had lost his wallet and wanted to see if it was there.
[31] At that point, Mr Harcombe still lay down the drive, unconscious. Mr Hamilton stood over him straddling his push bike, and admitted to kicking him in the chest. Mr Slade did nothing further to Mr Harcombe but stood off a little, as did the third party, Mr Walding. Mr Harcombe was left where he had fallen.
[32] At 6.45 am a member of the public who was walking to get a newspaper found Mr Harcombe lying in the drive. His condition was very serious. He was transferred to Auckland Hospital where he was maintained on life support until it became obvious that he could not be resuscitated. A pathologist said a “massive head injury” had made his death inevitable.
[33] These three young men were apprehended very quickly on the Saturday. It was a relatively uncomplicated investigation, and a “clean cop”. Mr Slade, for instance, was in possession of the deceased’s shoes; Mr Maihe of his cell phone; and enough was made in the way of admissions to leave substantive defences quite hopeless.
[34] Unsurprisingly, the defence counsel endeavoured to have the cases dealt with as charges of manslaughter and robbery. The Crown would not accept alternative pleas, and the cases proceeded to trial on counts of murder.

The personal circumstances of Messrs Slade and Hamilton

[35] Mr Slade had an unhappy childhood. He was born when his mother was 14. His father was killed in a motor accident during the pregnancy. For the first ten years of his life Mr Slade lived with his mother’s grandmother. It was a grim existence with bashings and a dysfunctional atmosphere about him. By the age of 12 he was drinking and using cannabis and moving on to hard liquor. He performed poorly at school and was persistently in or on the verge of trouble with school authorities. He left school at the end of the Third Form with no formal qualifications. He never became involved with a formal gang environment but hung out socially with a group of young Maori women and men “just like” him from the “west side” of Whangarei. This group’s activities revolved around drinking, minor offending and fighting. Mr Slade had no criminal convictions at the time of the matters which are before us.
[36] Mr Hamilton faired scarcely better in his youth. His parents separated. Mr Hamilton said he had no idea where his father was. His mother, in a later relationship, was beaten and he and his siblings were removed at one time or other from the family. Mr Hamilton left school from the Fourth Form for “fighting”. Apart from two brief spells of employment with his father’s employer he never worked. He was too young to gain a benefit. His mother would give him $10 a week for his personal needs. Alcohol and drugs were a significant issue for Mr Hamilton. He too had no criminal convictions at the time of the murder.

The first ground of appeal: s 104 does not apply

[37] Keane J held that the killing in this case came within both paragraphs (d) and (e) of s 104: that the murder was committed in the course of another serious offence; and that it was committed with a high level of brutality, cruelty, depravity or callousness.
[38] Counsel endeavoured to persuade us that neither paragraph applies in this instance.
[39] As to the commission of murder in the course of another serious offence, this appears to have a temporal element. That is, there must be a prior event which is itself a “serious offence”, and the murder must then be committed in the course of executing that prior event. The judge had no difficulty finding - and there was ample evidence for this - that the three youths set out to rob Mr Harcombe, with violence or threat of violence, although no weapons were involved. The issue therefore narrows to whether this was a “serious” offence. The term “serious offence” is not defined in the statute. Robbery itself carries a maximum penalty of ten years imprisonment, and necessarily involves violence or threats of violence. It is quite true that robberies can vary widely in their circumstances and seriousness. In its normal usage “robbery” is a serious offence. But more particularly, on the facts of this particular case, there was a group of people involved, and decided violence, which included kicks to the head. In law it amounted to an aggravated robbery (although it was not charged as such). We think the judge was left with no alternative but to say that on this ground alone this murder was caught by s 104.
[40] Section 104(e) may be more problematical. There is no such thing as a murder which is not, in some sense, brutal, cruel, depraved or callous. What the statute points to is the requirement that there be a “high level” of the requisite conduct. The provision has to be approached purposively, rather than mechanically. Here the Crown points to the attitude displayed by these three young men both during the assault and afterwards. To return to the scene of the crime some distinct time later and to leave the victim again (with at least Mr Hamilton inflicting more blows) in grave distress was highly callous. Then there is the actual level of the violence in the form of the kicks to the head.
[41] The trial judge had the advantage of having seen and heard all the evidence at trial. We think there was a proper evidential foundation on which he could come to the view that this was a highly callous murder within the purview of the statutory provisions. We are not persuaded that he was wrong on this point.

The second ground of appeal: 17 years manifestly unjust

[42] It does no injustice, we think, to the efforts of counsel who were faced with the difficult task of arguing the case for these young men to say that their submissions really came to the proposition that, by reason of the fact that these were callow youths with the backgrounds we have already described, a 17 year sentence of actual imprisonment falls so heavily upon them, that it is genuinely crushing and destructive of their lives and therefore “manifestly unjust”. In addition, Ms Postlewaight for Mr Slade made a determined attempt to demonstrate that the judge was wrong to have treated Mr Slade as being on all fours, for sentencing purposes, with Mr Hamilton.
[43] This case demonstrates the very real difficulties posed for sentencing judges by s 104. This Court has had occasion to remark on previous occasions on the difficulties of having a minimum but no maximum sentence; to that must be added that, in a case such as the present, Parliament expressly did not create any age or youth exemption. Judges are only too familiar with the statistics and the reality of cases which show the high degree of violent offending amongst youths. The statistics are also fairly graphic that, after their early 20s, such offending, generally speaking, tails away. The reasons for this were enlarged upon by Dr Ian Lambie, a registered consultant psychologist, in a report for the defence, in the following terms:

It is widely accepted that adolescents do not possess either the same developmental level of cognitive or psychological maturity as adults (Steinberg & Scott, 2003). Adolescents have difficulty regulating their moods, impulses and behaviours (Spear, 2001). Immediate and concrete rewards, along with the reward of peer approval, weigh more heavily in their decisions and hence they are less likely than adults to think through the consequences of their actions. Adolescents’ decision-making capacities are immature and their autonomy constrained. Their ability to make good decisions is mitigated by stressful, unstructured settings and the influence of others. They are more vulnerable than adults to the influence of coercive circumstances such as provocation, duress and threat and are more likely to make riskier decisions when in groups. Adolescents’ desire for peer approval, and fear of rejection, affects their choices even without clear coercion (Moffitt, 1993). Also, because adolescents are more impulsive than adults, it may take less of a threat to provoke an aggressive response from an adolescent.

[44] The policy implications in the criminal justice sphere are relatively obvious. The first concern is to actually prevent the problem of delinquency manifesting itself as violent criminal activity in the decidedly “at risk” period; then to address the root causes of that offending in an individual. Other policy implications lie largely outside the criminal justice system, in such things as the provision of greater educational and job training opportunities; possibly an expansion of the public sector to provide services to the less well off; in one way or another promoting the inclusion of all citizens in society; and doing what can be done to encourage cultural ideals which increase the focus on community and respect for others.
[45] If incarcerated, and again in this respect Dr Lambie’s report was grounded on well accepted professional literature, adolescents experience high levels of depression, anxiety, suicidal ideation and self-injurious behaviour, and victimisation from other inmates whilst incarcerated. Then too, in institutional terms, adult institutions offer less in the way of health and mental health services for adolescents than for adult prisoners (Soler, “Health issues for adolescents in the justice system” (2002) J Adolescent Health 321).
[46] The short point counsel made here is that not only are these stern sentences by any standards, but they will fall more harshly on these two young men. And the prospect for their futures, even on release many years hence, can only be bleak, at best.
[47] It was also suggested to us by both counsel, in a variety of ways, that this case is not really the sort of case that s 104 was designed to catch. Prior to the Sentencing Act “reforms” this would have been a sadly routine sort of murder, attracting an effective sentence of ten years incarceration, before life parole.
[48] The human problems raised by this case have given us cause for very distinct concern. The Select Committee considering these reforms was told that there are upwards of 50 murders a year in New Zealand today. There is a fair prospect that a respectable percentage of that number of murders may come from “youth crime” which has, as in this case, simply got out of hand. It would have been open to Parliament to create an exception (as for instance by a floor age before the long-term sentence kicked in). But it has to be said, as the Court has already had occasion to say in other cases, that this Court cannot, as it were “create” a youth exception as such. The Parliamentary language is general in its application.
[49] Cases such as the present can only turn on their own facts, having regard particularly to the intent of the perpetrator, his or her actual participation in the wrongful event, and his or her “attitude” to what occurred.
[50] In the case of Mr Hamilton, we cannot say the judge was wrong to apply the explicit statutory formula. His intent was ugly; he was far and away the most violent offender; and he still appears to have little appreciation of what he did.
[51] The case of Mr Slade is more difficult. The Crown agreed that the essential issue here is whether age, when taken into account with the other relevant factors, produces manifest injustice to Mr Slade. And Mr France responsibly accepted that “a peripheral role sufficient to make one a party, but lacking true involvement in the offence, might well call for a lesser sentence”.
[52] We have already canvassed the problems associated with Mr Slade’s age and his upbringing. Plainly he has been afflicted by the anomie which, in criminological terms, is normally used to designate the state of normlessness which sadly afflicts too many youth today. But he does show more signs of empathy and awareness than Mr Hamilton.
[53] The sentencing judge did not accept that Mr Slade was merely a bystander in this offending. But the fact that he was not simply a bystander does not make him fully complicitous. To treat him as being on all fours as a principal (at least for the purposes of s 104, and particularly given the implication of such a finding) was, we think, wrong in this instance. It is accepted on all sides that Mr Slade only got involved when Mr Hamilton began to lose his fight with Mr Harcombe. He did “pin” Mr Harcombe, which enabled the worst of the violence to be inflicted by Mr Hamilton. This was not “minimal” involvement, in that it made the worst of the violence possible. However it is quite plain, we think, on the facts that Mr Slade was by no means the ringleader or a principal perpetrator. That is a significant aspect in a case such as the present. When taken together with his age, upbringing and the crushing nature of a sentence such as this for a 17-year-old, we think this is a case where there is manifest injustice in the lengthy non-parole period.
[54] We think his case is adequately met by the sentence of life imprisonment, under which Mr Slade will be required to serve at least ten years imprisonment before being eligible for parole.

Conclusion

[55] In the result:

1. the appeal against sentence by Mr Hamilton is dismissed;
2. the appeal against sentence by Mr Slade is allowed. The sentence of life imprisonment will remain in place. We set aside the sentence of a minimum 17 years non-parole period.
   

Solicitors:
Lucy Postlewaight for Appellant Slade
Crown Law, Wellington