Cornelius v R [2014] NZCA 123 (7 April 2014)

Last Updated: 17 April 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA17/2014 [2014] NZCA 123
BETWEEN	SELWYN DAVID CORNELIUS Appellant
AND	THE QUEEN Respondent

Hearing:	25 March 2014
Court:	Stevens, Keane and Andrews JJ
Counsel:	A M Simperingham and B Shakell for Appellant J M Jelas for Respondent
Judgment:	7 April 2014 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

[1] The appellant, Mr Cornelius, pleaded guilty to and was convicted of murder. He was sentenced by Gilbert J to life imprisonment, with a minimum period of imprisonment of 15 years and six months.^[1]
[2] Mr Cornelius now appeals against this sentence on the grounds that the minimum term of imprisonment imposed was manifestly excessive. He submits that Gilbert J failed to account adequately for his early guilty plea and his remorse, and the alleged provocation by the victim. The Crown submits the minimum term of imprisonment finally imposed was within range and was appropriate in the circumstances, in light of the two-stage approach to be applied when sentencing for murder of this type.^[2]
[3] These opposing contentions conveniently define the issues for determination on appeal.

Background

[4] The factual background is not in dispute. In the week prior to the murder, Mr Cornelius had an issue with the victim, Mr Paaka. This concerned Mr Paaka’s puppy coming onto Mr Cornelius’ property and creating a nuisance. This altercation escalated to the point where Mr Cornelius, after attacking the puppy with a piece of wood, threatened to kill Mr Paaka’s puppy. Mr Paaka responded that if he did that, he would kill Mr Cornelius.
[5] Later that day, Mr Cornelius described to a friend that he was going to “take Mark out”, and going to “hammer Mark” (referring to Mr Paaka). That evening, Mr Paaka was walking with a friend along the grass verge on the side of the road. Mr Cornelius drove his car directly at the victim, narrowly missing the friend. He yelled out “I’m going to fucking kill you” as he accelerated towards him.
[6] Mr Cornelius hit Mr Paaka, who was thrown into the air and landed on the ground and drove over him. He then accelerated back towards the victim, driving over the top of him. He then drove over the victim a third time. He reversed, and then accelerated forward once more. The victim got stuck under the vehicle as Mr Cornelius continued driving forward for two metres before hitting a concrete fence, backing off the victim and driving back up the road.
[7] The incident was witnessed by a number of bystanders. Mr Paaka’s injuries proved fatal.

Approach to sentencing

[8] Section 104 of the Sentencing Act 2002 (the Act) governs the imposition of a minimum period of imprisonment of 17 years or more. In terms of s 104, Gilbert J accepted the Crown’s submission that the attack was committed with a high level of brutality and callousness. He said:^[3]

... Your attack was deliberate and sustained. You drove directly at Mr Paaka, accelerating as you did so having declared your intent to kill him. There is no doubt that this was an intentional, not a reckless, killing. You hit Mr Paaka with such force that he flew up in the air and smashed the front windscreen of your car. He was then lying in the foetal position on the ground unable to move and obviously seriously injured. Despite that, you turned your car around and drove directly over him repeatedly as he lay defenceless on the ground. You then delayed for a short time before reversing off him and driving away.

[9] The Judge therefore considered that s 104 applied and that a minimum period of imprisonment of 17 years would be appropriate.^[4] Gilbert J then referred to the decision of this Court in R v Williams and the issue of whether it would be manifestly unjust to impose a 17 year minimum period of imprisonment.^[5]
[10] Gilbert J acknowledged that, according to pre-sentence and psychological reports before him, Mr Cornelius has a low level of anger control when he feels threatened, has a capacity for violence and a belief that violence is an acceptable method of dispute resolution.^[6] He noted that Mr Cornelius has a criminal record of violent offending, with various serious prior convictions. He had previously engaged in counselling, but still had difficulty managing his anger.
[11] The Judge also accepted that Mr Cornelius showed genuine remorse for his actions. He accepted that Mr Cornelius was overcome with panic and despair after the attack.^[7] He then concluded that, in light of the Mr Cornelius’ early guilty plea and genuine remorse, it would be manifestly unjust to impose a 17 year minimum term of imprisonment.^[8] A discount of 18 months was applied to produce the final minimum period of 15 years and six months’ imprisonment.^[9]

Submissions on appeal

[12] For Mr Cornelius, Mr Simperingham contends that an 18-month discount for the early guilty plea and expressions of remorse was insufficient. He submits further that provocation by the victim was not considered by Gilbert J at all, and should have been taken into account in setting the minimum period of imprisonment.
[13] In support, Mr Simperingham emphasises that the guilty plea was made some eight days following the murder and that Mr Cornelius is extremely contrite and genuinely very remorseful. The discount of 18 months represented only eight per cent of the total minimum period.
[14] For the respondent, Ms Jelas submits that the murder was committed with a high level of brutality and callousness thus qualifying for the 17 year minimum period, pursuant to s 104(1)(e) of the Act. She submits there were further aggravating factors, namely the vulnerability of Mr Paaka as he lay defenceless on the ground after the first running down, and the fact that the Mr Cornelius’ murderous intent was not limited to Mr Paaka, but rather extended to the individual with whom he was walking at the time. Ms Jelas accepts that the guilty plea was very early and must, together with the remorse shown, be treated as a mitigating factor. However she resists the proposition that provocation is a mitigating factor in the circumstances of this case.
[15] As such, Ms Jelas submits that, according to the two-stage approach mandated by this Court for cases under s 104, a starting point sentence of 17 years’ minimum imprisonment was within range.^[10] Turning to the second stage, concerning whether it would be manifestly unjust to impose that starting point, she submits the circumstances of the offending and offender as a whole were such that a discount of 18 months was appropriate.

Analysis

[16] We accept that the Judge at sentencing did not expressly embark on the twostage approach outlined by this Court in R v Williams. There, a two-step process was endorsed as follows:

[52] ... 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.

[17] The first step is to ascertain the degree of culpability in this case, in relation to the standard range of murders. With regard to the pertinent aggravating factors in s 104, we agree this case is one committed with a high level of brutality and callousness.^[11] This is due to the intentional, lethal nature of the attack, and the repeated running over of Mr Paaka after he was initially struck, even when he was unresponsive. A further factor is the presence of Mr Paaka’s companion, who narrowly escaped being struck. We are satisfied that the circumstances of the offending are more serious than similar cases such as R v Pukeora and R v Kinghorn.^[12] Accordingly a starting point of 17 years’ minimum imprisonment was appropriate.
[18] Turning, then, to the second step, whether a minimum period of 17 years’ imprisonment would be manifestly unjust, the key relevant factors are the early guilty plea, with the concomitant benefits that brings to the state and the victims family, and the Mr Cornelius’ expressions of genuine remorse.
[19] Whether a reduction is warranted, and the weight to be given to a guilty plea, was considered by this Court in R v Williams:

[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 only one 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.

[20] Thus, the specified minimum period in s 104 must not be departed from lightly. As indicated by this Court in R v Parrish, the presence of mitigating factors under s 9(2) of the Act, relating to personal circumstances of the offender, will only rarely displace the specified minimum term of imprisonment.^[13] Viewed as a whole, we are satisfied that the 18-month discount for the early guilty plea and the genuine remorse demonstrated by Mr Cornelius was appropriate.
[21] We do not consider that any greater discount should have been afforded for provocation. Mr Cornelius did not appear to raise this as a discrete mitigating factor at sentencing.^[14] Gilbert J did not consider it to be a salient mitigating feature, and there is no new evidence suggesting it should be considered as such.
[22] The claim for an additional discount due to provocation by Mr Paaka’s behaviour is based on the threat made by Mr Paaka to Mr Cornelius. However, the threat was made over eight hours prior to the attack, in circumstances where Mr Paaka and his partner were inside the house when they heard the puppy scream out in pain, after Mr Cornelius had attacked it with a large piece of wood. When Mr Paaka came out to see what had happened, the Mr Cornelius threatened to kill the dog. Mr Paaka responded that if Mr Cornelius did that, he would kill him.
[23] We agree with the Crown’s submission that a high degree of provocation is required in murder cases before the “manifestly unjust” threat threshold is reached. This reflects the need to ensure the statutory minimum sentence is not readily displaced, contrary to the intent of Parliament. We are satisfied that the present circumstances fall well short of that threshold. Any threat made by Mr Paaka much earlier in the day could not, in these circumstances, be characterised as an operative cause of the actions of Mr Cornelius later that evening.
[24] Moreover, applying the non-exhaustive criteria set out by this Court for assessing provocation in the context of s 104 in Hamidzadeh v R, the following points are relevant:^[15]

• (a) The Mr Cornelius himself provoked the victim’s threat due to his actions towards the latter’s puppy.
• (b) When viewed objectively, the threat against the Mr Cornelius was a spontaneous, heat of the moment statement made in the course of a disagreement between neighbours without the character of a legitimate threat,
• (c) The Mr Cornelius’ actual behaviour was disproportionate to the alleged provocation, which constituted an annoyance engendered by the puppy, and an unsubstantiated spoken threat.
• (d) There was significant delay between the threat and Mr Cornelius’ actions.
• (e) There is limited evidential foundation for the claim of provocation, outside the Mr Cornelius’ personal claim to have lost control.

[25] These factors weigh against any discount being given for provocation over and above the 18 month discount already allowed.

Result

[26] The sentence of Gilbert J is upheld. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Cornelius [2013] NZHC 3435 at [25].

^[2] According to R v Williams [2005] 2 NZLR 506 (CA) at [52]–[54].

^[3] At [20].

^[4] At [21].

^[5] At [22], referring to R v Williams, above n 2, at [69].

^[6] At [16].

^[7] At [17].

^[8] At [22].

^[9] At [23].

^[10] R v Williams, above n 2, at [54].

^[11] Sentencing Act 2002, s 104(1)(e).

^[12] R v Pukeroa HC Rotorua CRI-2009-063-697, 10 December 2010; R v Kinghorn [2013] NZHC 3216.

^[13] R v Parrish CA 295/03, 12 December 2003 at [21]. See also R v Williams, above n 2, at [66].

^[14] Counsel for the appellant at sentencing submitted that Mr Paaka’s threat to a “certain limited extent” provoked Mr Cornelius.

^[15] Hamidzadeh v R [2012] NZCA 550, outlining some potentially relevant factors at [62]–[68].